From UPSC perspective, the following things are important :
Prelims level : Not much
Mains level : Paper 2-Judiciary and relations with executive
The relations between the judiciary and executive have always been tumultuous. This article analyses the changes in the judiciary’s relations with the executive after 2014.
Relations with executive
- In 2014 government blocked the elevation of Gopal Subramanium as a judge of the apex court.
- A month later, the government introduced a bill to create the National Judicial Appointments Commission (NJAC).
- The NJAC Act was passed by Parliament in December 2014.
- In October 2015, the SC struck down the NJAC Act, ruling that it would affect the independence of the judiciary vis-à-vis the executive.
- Following striking down of the NJAC Act, the SC directed the government to propose a new memorandum of procedure (MoP) for appointments to the higher judiciary.
- The draft government sent to the Court allowed the government to reject any name recommended by the Collegium on grounds of national security and made it compulsory for the Collegium to justify its selection.
- The Collegium rejected these clauses and the MoP could never be finalised.
- The government sat on the appointments that the Collegium had recommended months ago.
- In April 2016, 170 proposals for appointments to the high courts were pending at that time.
SC’s perceived reluctance to question executive after 2017
- Appointments and transfers ceased to be a problem because the Collegium accepted the appointments and transfers.
- The Court considered that the Aadhaar Bill could be passed as a Money Bill, validated the Electoral Bonds Act.
- The SC also abstained from dealing with sensitive issues like the abolition of Article 370 or the Citizenship Amendment Act.
- This modus operandi of the court, when applied to Aadhaar, created a fait accompli.
3 questions over the SC’s role
- 1) The court’s reluctance to question the government on contentious issues — from J&K to misuse of sedition law or the NRC — is disturbing.
- 2) The manner in which the judiciary has addressed allegations against itself — Kalikho Pul or Prasad Education Trust or on sexual harassment — gives a handle to those in power.
- 3) The independence of the judiciary is inevitably affected by the acceptance of post-retirement jobs.
Consider the question “While playing its role, judiciary faces several challenges from the other organs of the democracy. In light of this, examine the challenges judiciary in India faces from the executive.”
Supreme Court’s apparent reluctance to question government on consequential issues affects its moral authority.