Who Is Supreme: Executive Or The Judiciary?

It is said that the tussle between the executive and the judiciary started when the Ninth Schedule of the Constitution was added to the Constitution vide the First Constitutional Amendment Act,1951. The Act provided that the laws included under the Ninth Schedule of the Constitution are out from the judicial scrutiny. The Courts have no power to determine the constitutional validity of the laws added under its preview. This amendment Act has two fold effect.

First of all, it gave extensive power to the executive and secondly, it has limited the scope of the judiciary. But, with the passage of time situations has eloped and every time the conflict between the judiciary and the executive has been reflected. The conflict between the legislature and the executive is a matter of debate itself. Over time and again, the legislature has tried to establish its supremacy by surpassing the power of the judiciary. The Courts have brought such activities of the legislature under the purview of the judicial review and has declared such acts as null and void which transgress the provision of the Constitution, thus destroying the basic structure of the Constitution.

The Supreme Court has been held to be the guardian of the Constitution and has been held to be the final interpreter of the Constitution. The judges of the Court are appointed by the Collegium system. This system has been opined as the opaque system for the appointment of the judges. The NDA government at the Center tried to scrap this opaque system. In the 3rd Judges case(1998), the concept of Collegium system came up whereby it was provided that the body would consist of the Chief Justice and 4 other senior judges who would be responsible for the appointment and transfer of the judges. The only loophole in the collegium system is that there is no constitutional sanction behind it.

The recent confrontation between the judiciary and the executive came up in the 99th Constitutional ( Amendment) Act,2014. Article 124 of the Constitution of India provides that the Judges of the Supreme Court shall be appointed by the President under his hand and seal. The National Judicial Appointments Commission (NJAC) came into force on 2015. The NJAC would consist of 6 persons: CJI, 2 senior judges of the Supreme Court, the Law Minister and 2 eminent persons. The eminent persons would be appointed for a term of 3 year by a Committee consisting of Prime Minister, Chief Justice of India and get Leader of the Opposition. These eminent persons are not eligible for reappointment.

Now a question arises as to whether the induction of the political members in the appointment is not a direct attack on the independence of the judiciary? In the case of Keshavananda Bharati vs. State of Kerala(AIR 1973), the Supreme Court has evolved the doctrine of basic structure. Among the various parameters of basic structure, independence of the judiciary is one among them. In the Fundamental Rights case, the Supreme Court has held that the Constitution of India can be amended subject to the condition that the basic structure of the Constitution is not destroyed or damaged. Hence, the enactment of the NJAC is a straight attack on the constitutional feature of the Indian Constitution.

Therefore, the NJAC has diverted the constitutional framework. The passage of NJAC has amended the Constitution and has once again resorted supremacy of the executive over the judiciary. The power of the judiciary has once again been curbed by the legislature. Senior lawyer Ram Jethmalani has called the NJAC as “evil absurdity.” The NJAC was enacted with the bonafide intention of making the appointment of the Judges of the Supreme Court and the High Court more transparent.  The NJAC sought to amend Articles 124 and 217 of the Constitution. It sought to provide a clear cut process for the appointment of the judges. But this is contrary to the constitutional features of the constitution. When NJAC came under judicial scrutiny, the Justice Khehar led Constitution Bench of the Supreme Court has rejected The 99th Constitutional Amendment Act, 2014 has been declared as unconstitutional and consequently rejected the NJAC.

Subham Chatterjee

Subham Chatterjee is a penultimate year law student from Tezpur Law College, Assam. Apart from excelling in academics, he has presented papers in national seminars, contributed chapters in edited books published internationally. He also brought accolades by winning Moot Court Competition, Client counselling competition and Quiz Competitions apart from participating in various competitions. He has recently authored an ISBN book 'Land Laws of Assam: A Reference Book for the students of Gauhati University" He is also a trained Hindustani Classical (Vocal) and Rabindra Sangeet singer.

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