Bengaluru, Oct 17: The Supreme Court's decision to discard the NJAC(National Judicial Appointments Commission) and uphold the two decade old collegium system has had mixed reactions. However several legal experts feel that this could lead to a collision course between the legislature and the judiciary.
Several politicians have spoken out against the verdict delivered on Friday by the Supreme Court. While four judges were in favour of abolishing NJAC, one judge differed.
The issue in question here is not just the NJAC. It is a fight between the judiciary and the parliament. The judiciary speaks about its independence and even said in Friday's verdict that if the NJAC is upheld then favourites of politicians will become judges.
On the other hand is the question relating to the amendment to the Indian Constitution, a power vested with the Parliament. The Supreme Court on Friday held that the 99th amendment to the Constitution and the NJAC were violative in nature.
This despite the Constitution clearly stating that the Article 368 gives Parliament the power to amend the Constitution of India.
All set for confrontation
Whether there would be a quietus on this subject or not is still something that is unclear. The legislators are clearly upset that the Supreme Court has rejected their decision by way of an amendment.
The Parliament does have the power to amend the Constitution under Article 368. The legislators would argue that India is only country where judges are appointed by judges.
This is a democracy and the judiciary questioning the presence of two eminent persons in the NJAC is wrong, legislators say. However legal experts feel that if two rank outsiders are included into the NJAC then it amounts to interference.
The independence of the judiciary is supreme and none can interfere with it says Justice Santhosh Hegde, former judge of the Supreme Court.
This is a very delicate issue and both sides need to tread with care say experts both in the Parliament and the Judiciary. Let us see what happens on November 3 when the matter is listed for suggestions on how to improve the collegium says Navkesh Batra, senior advocate.
The decision of the government would be clear by then. However many others also point out that the issue needs to be resolved a clear balance attained failing which it would lead to a ugly spat between the two very powerful pillars of democracy.
How accurate is the collegium?
While the Supreme Court has often repeated that they want no interference, the bigger question is how accurate has the collegium system been. There is no transparency at all in the collegium system of appointing judges.
Recommendations are considered and the matter is decided in the four walls by five judges. There have been several cases where judges have been recommended for elevation to the Supreme Court despite facing corruption charges.
In some cases the names have gone through while in some it has been rejected largely due to protests by the advocate's associations or the Bar Council.
Justice Hegde says that the collegium has not always been right. "I was part of a collegium and some names have come up for elevation or appointment to the high court.
In some cases the collegium has gone wrong. I would say that the collegium system has gone wrong 25 per cent of the times. However the solution is not to replace the collegium but suggest ways to make it better." he says.
Legal experts say that the collegium system needs to be more transparent. It is like an exclusive club of the judiciary. None know what is taking place in those four walls. If the proceedings are more transparent and the people are aware of what takes place, then the collegium can continue and there would be no need or an NJAC.