Executive and Judiciary

In a democracy, the separation of powers is a core doctrine. No single arm of the governance system can be a law unto itself, responsible to no one else. Each wing has to work in conjunction with others, so that a healthy interface results. Perpetual tension and conflict would upset the delicate balance between essential institutions to the detriment of the public interest. In such a context, the relationship between the government and the judiciary is relevant to good governance, especially in a context where for close to a quarter of a century, the judiciary substantially has in practice broken free of the influence of the elected government. Since 1993, key judicial appointments are made through a collegium comprising of Supreme Court justices. Given the length of time in which this system has been operative, perhaps the time has come for an exhaustive and independent review by eminent and nonpartisan citizens of the results in practice of such a complete separation of the mode of selection of members of the judiciary from the executive. There is no doubt that the judiciary in India has distinguished itself by its many qualities of excellence. Our judges are of exceptional quality, able to stand their ground with peers from across the globe. Over the past two decades, important judgments have been made that have had a significant impact on the economy as well as on society and often on political processes. Examples are the judgments relating to the allocation of 2G spectrum and also of coal. Because of the whiff of favouritism which surrounded these two executive actions, and in view of the opacity of the processes of decision-making which resulted in the impugned allocations, the Supreme Court decided to completely cancel these flawed decisions so as to ensure a fresh start to the process of selection. This has of course had a huge impact on the coal and telecom sectors and on the investment climate in India. Hopefully, the landmark decisions in these two cases will serve as a disincentive for future administrations to revert to the favouritism apparently witnessed during the period when Manmohan Singh was Prime Minister. 

The broad scope of judicial decisions in India has ensured that the judiciary has a pre-eminent role in national affairs. No government decision can be treated as confirmed unless the same be judicially ratified in cases

where a challenge exists. This has added a layer of uncertainty and delay to decision making in India. However, the same may be inevitable in a country where too many colonial practices remain in the processes of governance, including a systemic absence of transparency. Truly the range and depth of judicial interventions in India are such that a case may be made for the judiciary in India being more powerful and influential than that in several other democracies, especially those where the executive has the final say on the appointment of judges, which indeed was the case in India until 1993. In the context of the need for transparency in processes in the 21st century, it may be worthwhile for the names of those under consideration for the all-important posts of judges of the High Court and the Supreme Court to be made available much in advance to the public, so that there would be an opportunity for those to respond who may have some knowledge about the distinguished names being considered. Several responses may be inconsequential, but there may occasionally be a nugget of illumination that has the capacity to add value to the selection process. In case the Supreme Court continues with the present collegium system, it may be worthwhile to appoint a consultative body comprising of individuals chosen for their fealty to the public interest which could advise the collegium of the perceived merits or otherwise of the nominees under consideration. It must not be forgotten that both executive and judiciary are vital to the future of the country, and each needs to fulfill assigned tasks with distinction.