Indian democracy is based upon the independent& impartial judiciary. India is a state where rule of law prevails and judiciary act as an arm to puissant rule of law but India has faced chaos and horrendous situation in appointment of judges to H.C, S.C, C.J.I Etc. This problem was not new it is prevailing from the era of 1970’s. The faith in justice system is the reason behind success & pinnacle of the country, but that pinnacle is invisible in India.
Situation before 99th Amendment Act, 2014:- the appointment of judges of S.C before 1977 was in the hand of president(indirectly the council of minister) before 1973 the appointment of C.J.I was held according to a well established precedent i.e. seniority of judges but after 24th April 1973 the situation is completely exterminated by executive interference . It was made that C.J.I must be appointed by president on basis of suitability of judge. Suddenly A.N.Ray was made C.J.I superseding 3 senior judges. It was all done due to the cantankerous shown by government over the fundamental right case.
In case- Union of India vs. Sanklachand Seth (1977) & S.P Gupta vs union (1982) S.C made executive supreme by saying – “president is not bound by the opinion of C.J.I for appointing judges of S.C & H.C under art 124(2) of Indian constitution”
While in case – Supreme court advocate on record association vs. Union (1993) 9 judge Bench held –
“ the opinion of C.J.I must be given primacy in appointment of judges & C.J.I need to consult 2 senior judges for appointing judges to S.C & H.C. while C.J.I must be appointed as per seniority basis”
In case – Re presidential reference (1999) S.C held appointment must be made by opinion of C.J.I who shall consult collegium of 4 judges. So plurality of consultation became the criteria.
99th constitution amendment act, 2014 – presidentconsultation with national judicial appointment commission was made mandatory under Ar. 124 (2), it led to increase executive interference up to great extent again.
CONTROL BY EXECUTIVE:-as executive started wielding the affairs. The strength of S.C presently is –25, were as vacant seats are – 6
The recommendations send by S.C to executive is unacceptable to executive & recommendation by executive is unacceptable to S.C so both are confronting with one another in the said matter. This has abundantly affect the theory of separation of power between three organ of government in Indian constitution due to profuse executive interference.
Worst effect on judicial system:-
Thwarting the rule of law
Crippled the faith in judicial system
Abundant number of pending cases are increasing
Death kneel to democracy
Political base appointment increasing
Press conference of 4 senior S.C judges against C.J.I Mishra evincing schism in Judiciary
So judiciary need to be made completely independent in case of appointment of judges. Executive interference need to palliate to zero to protect subversion of democracy& colourable usurpation of power to improve the judicial system as well as faith in the justice system.
By- Deepak Yadav, Student Reporter, INBA