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Judiciary Vs. Executive: How to overcome the distrust?

The confrontation between judiciary and executive continues to cause serious concern.
The latest outburst of CJI against government for delaying appointment has soured the
relation between two even more. The Chief Justice of India (CJI) observed and
contemplated a contempt of court notice against secretaries in PMO and department of
justice before being assured by Attorney General for action before next hearing. The
government then cleared appointment of 10 Delhi and Guwahati High Court judges.
However the larger issue of who should be appointing the judges and how should they
be appointed continues to be debated with the revised Memorandum of Procedure
(MOP) yet not being finalised as the SC collegium and government have been unable to
come to consensus.
Reasons for conflict
There is a struggle of power of sorts and not a larger case of mistrust that involves trust
being reposed and then trust being not discharged properly. Both sides seem to be
engaged in game of one-upmanship, some kind of tug of war where each wants
something important, which is the power of judicial appointment to higher judiciary.
But what is surprising and difficult to understand is that both executive and judiciary
believe in making appointments to higher judiciary on merit which can contribute to the
accountability and efficiency of judiciary and yet there is no consensus between the two!
When two sides can amicably arrive at a common consensus on what should be
the criteria on basis of which the election of the candidate to the higher
judiciary, there is no dialogue between the two on the same.
Earlier, it was the executive which had a hand in making appointment. Then came 1993
judgement when collegium system was established. Since then, constant tussle between
the two has been the case. Both the executive and judiciary dont seem to be in
agreement to what should be the Memorandum of Procedure. The SC had asked the
government to prepare the memorandum of procedure but it is stuck for last 10 months.
The criteria of merit has to be decided yet. A candidate has to have qualify for the stated
qualifications and such has to be made public. This is where problem arises. The
disagreement is about induction on both sides of people who may not ultimately prove
to be not worthy of selection for a constitutional post.
The NJAC judgement was crucial turning point leading to present confrontation. No
doubt, there always has been a certain amount of creative tension but NJAC judgment
became tipping point. This was the law of land and it doesnt seem government has fully
reconciled to the judgement and that is what is making it create a roadblock.
Both are responsible
When SC delivered its NJAC judgement, it also acknowledged that there was much that
was wrong with the procedure of the collegium. It invited suggestions and held detailed
hearings on procedures after the judgement was delivered and left it on the government
to come out with new MOP. As the same time, SC didnt clarify that until the new MOP
was put in place, the old memorandum would continue and therefore the government
now uses this as a reason for sitting on appointments. But, then CJI rightly asked, if this
was the reason, how government has been clearing appointments piecemeal. Either it
didnt clear any appointments or come back to court and say it cant clear appointments
until new MOP in place. The present appointments give the impression that government
is selectively appointing judges.
But at the same time SC also has a duty to see that a proper MOP is in place. It cant take
10 months of deadlock between two sides for a MOP to be in place. Therefore, the court
also needs to finalise this quickly and if there is a deadlock, there needs to be a face to
face meeting between all the members of collegium and the senior members of
government to solve the problem.
The development of confrontation
The relations in a democracy, between judiciary and executive cannot be too cosy either.
Cosy relation can compromise the decisions, hence there is danger. But basic distrust in
appointment of judges was in early 1970s when Indira Gandhi asked for committed
judiciary, committed press and committed bureaucracy. That is the time when distrust
developed and during emergency, it further deteriorated. Then super session of judges
took place and there the people became aware that where does risk lies. The executive
wants obliging and convenient judges to be appointed to higher judiciary. If executives
have their say, they can amend constitution as per their convenience. But, SC has firmly
reiterated that essential core of constitutional cannot be amended even by majority and
appointment of judges is one of it.
Essentially, executive wants judges of their convenience irrespective of any political
party in power. And judiciary wants to keep its power which is acquired in 1993 where
they have supremacy. Their suspicion of executive making its way in judiciary remains
and executive suspects that judiciary is overstepping its limit.
Judiciary and executive
It is not a clash of personalities. This kind of difference in relationship is inherent in the
constitutional scheme itself. The executive is that limb of state which is vested with all
power and trust- to make policy, execute it and hold the perks. And judiciary is a check
on what executive does. Nobody like to be checked unless one is very appreciative of
constitutional scheme. No bureaucrat takes a judicial order kindly because a judicial
order upsets his scheme of things. Similarly, no political class takes it kindly when its
policy is upset by a judicial review.
Judiciarys sense of self-importance which is sometimes perceived as being possessed
by the judiciary is also partly due to the abdication of the political class itself in
situations where it ought to have asserted itself. Instead the political class found it more
convenient to leave it to court instead of taking a decision. So that has also led to an
increase in the importance of judiciary.
The problem is inbuilt in the institution. Executive has to ensure judiciary that they have
no intension of curbing their independence. Also, judiciary should not be too touchy
that every small little thing is challenge to their independence. The tension between
them is due to this confrontation. There should be creative tension.
Public blame game and daily battle through media is not required. Instead they have to
work for the system which is law of land.

Heading towards what?

The power of appointment has a certain element of patronage in system. There can be
merit but the power of appointment has certain political connotation. It can be used in
wider sense like use of power in university, judges decision or political process.
A consensus is not a near sighting. The real issue is not about who appoints judges, but
how judges are appointed and whether there is transparency or not. In entire
controversy, the real issue has got lost. Whether the judge be appointed under NJAC
system is declared unconstitutional by SC and constitutional under collegium system is
yet to be ascertained. Under both, there is no guarantee that the system would be
transparent. What is needed is that SC should ensure that there is transparency. There
are voices pointing out within the judiciary that there is no transparency in functioning
of collegium system. Unless that is guaranteed desired results will not be taken.
There has to be transparency in appointment. There is a need for transparency and need
for established procedures. The problem is that judiciary is trying to manage everything
and in the process they are not able to lay down proper systems- whether time
management in courts, docket management etc. these have to be given to a management
expert. Similarly, when it comes to deliberations of a collegium, there should be set
procedures in the way in which other high level appointing bodies lay down their
procedures. This is where judiciary has fallen short.
Connecting the dots:

How can judiciary and executive solve their impasse over appointment of judges?
Critically examine.