Is India heading towards new executive-judiciary tussle? Read about the issue as govt returns 20 files to SC Collegium of appointment of HC judges

For the smooth working of the Constitution, it is important that the judiciary and the executive work out a modus vivendi till their relations can be put on a firmer footing.

FPJ Web DeskUpdated: Tuesday, November 29, 2022, 09:44 PM IST
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Is India heading towards new executive-judiciary tussle? Read about the issue as govt returns 20 files to SC Collegium of appointment of HC judges | PTI

Relations between the judiciary and executive in India have always been the talk of the town. The issue is in news recently because of the government's ongoing tussle with the Supreme Court on Collegium.

For the smooth working of the Constitution, it is important that the judiciary and the executive work out a modus vivendi till their relations can be put on a firmer footing.

However, the long-existing conflict between the executive and the judiciary is common since 1950. The first such conflict between the executive and judiciary happened in 1951 when the government brought the prevailing Zamindari System to an end through legislation passed by the parliament.

Tussles till now 

During Indira Gandhi's tenure as PM, the judiciary, in response to three amendments by her, established the “Doctrine of Basic Structure‟ of the constitution through the Kesavanda Bharti case,1973.

When the apex court had in its 2015 verdict striking down the NJAC Act and the Constitution (99th Amendment) Act, 2014, leading to the revival of the Collegium system.

What is the current tussle?

On Monday, the government asked the Supreme Court Collegium to reconsider 20 files related to the appointment of high court judges, including that of advocate Saurabh Kirpal who has candidly spoken about his gay status, sources said on Monday.

The government expressed "strong reservations" about the recommended names as it sent back the files to the collegium on November 25, sources aware of the procedure to appoint Supreme Court and high court judges said.

Out of the 20 cases, 11 were fresh cases and nine were reiterations made by the top court collegium, they said.

Kirpal's name was recommended by the Supreme Court Collegium, headed by then Chief Justice of India (CJI) N V Ramana, for elevation as a Delhi High Court judge.

Saurabh Kirpal is the son of former CJI B N Kirpal.

Kirpal's name was sent by the Delhi High Court Collegium to the collegium in October 2017 for elevation as a high court judge. But the top court collegium is learnt to have deferred deliberations on his name three times.

He had recently told a news channel that he believed the reason behind the limbo was his sexual orientation.

Justice Ramana's predecessor, then CJI S A Bobde had reportedly asked the government to send more information on Kirpal. Finally, the collegium headed by Justice Ramana took a decision in favour of Kirpal in November 2021.

The government has returned all the names related to fresh appointments in various high courts on which it had "differences" with the Supreme Court Collegium, the sources said.

Supreme Court had expressed anguish over the delay by the Centre in clearing the names

The Supreme Court on Monday expressed anguish over the delay by the Centre in clearing the names recommended by the collegium for appointment as judges in the higher judiciary, saying it "effectively frustrates" the method of appointment.

A bench of Justices S K Kaul and A S Oka said a three-judge bench of the apex court had laid down the timelines within which the appointment process had to be completed. Those timelines, it said, have to be adhered to.

Justice Kaul observed that it appeared the government is unhappy with the fact that the National Judicial Appointments Commission (NJAC) Act did not pass muster, but that cannot be a reason to not comply with the law of the land.

NJAC act vs Collegium system

The apex court had in its 2015 verdict striking down the NJAC Act and the Constitution (99th Amendment) Act, 2014, leading to the revival of the Collegium system of existing judges appointing judges to constitutional courts.

During the hearing on Monday, the apex court told Attorney General R Venkataramani the ground reality is that the names recommended, including those reiterated by the apex court collegium, are not being cleared by the government.

"How does the system work?" the bench asked, adding, "The anguish we have already expressed." "It appears to me, I would say, the unhappiness of the Government of the fact that NJAC does not pass the muster," Justice Kaul observed.

Justice Kaul said sometimes laws pass muster and sometimes they don't.

"That cannot be a reason not to comply with the law of the land," he said.

The top court was hearing a plea alleging "wilful disobedience" of the time frame laid down by the apex court in its April 20 order last year to facilitate the timely appointment.

(With inputs from agencies)

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