Legislature, Executive and Judiciary are considered to be the three Pillars or Columns of our democracy; an additional one being Media. All four together constitute what is called “The Check and Balance” wings to keep the Governance of our Democracy on even keel.
Legislature is supreme in the sense that it is constituted by people’s representatives directly elected by the public. It’s main function being, to make laws keeping public welfare in mind.
Executive is the cabinet based on the principle of joint responsibility. This entity is the so called ‘Rulers’ who preside over the fate of the country. It is generally formed by a party or a coalition of parties representing majority numbers in the Legislature. It implements a political party’s Policies and program in case of a single party rule or what is called the ‘Common Minimum Program’ if there is a coalition of parties. Judiciary ensures that Rule of Law prevails. It even reviews the constitutional validity of an enacted law passed by the Legislature and consented to by the President of India. Thus the judiciary is heavily loaded with a very high and unique responsibility.
Implementation of the decisions by all above three wings is through what is called Bureaucracy, which in turn is considered the real vehicle of Governance. Without this structure the policies, programs and judicial orders remain only on paper and hence this constitutes what is in popular parlance termed as ‘Public service’. The individuals occupying the hierarchy are called ‘Public Servants’. Commitment to public service is thus a sort of ‘Hall Mark’ of this important branch of the ‘Executive’. The members of this ‘Service’ have continuity, whereas the ones heading their respective departments namely the Ministers keep on changing through the medium of elections and even during the currency of continued ruling majority. Onus of Governance, thus, rests on the shoulders of this branch. Honesty, integrity and impartiality of this wing are thus a must characteristic for public service.
In a democracy or even in any other form of Government the Media represent public sentiments and opinion on the working of all the other three entities. This has assumed the role of ‘Fourth Pillar’ in our democracy. In ideal conditions this entity occupies a unique position of keeping the other three on even keel. It is through this medium that the public knows every bit of what is going on and supplies public opinion to the ‘Rulers’. Any biased reporting will result in upsetting the balance.
With such a finely conceived arrangement in place a Utopian status should have been the result. However, in today’s scenario one finds oneself but in a thoroughly disappointing environment as regards constituents of the Legislature and the Executive. Simultaneously with the allegations of ‘Paid News’ the role of Media too has been under the Cloud. In this regretful environment only the Judiciary has been providing a glimmer of hope despite its many short comings and occasional allegations of ‘Judicial Activism’. However, the recently passed Legislation for appointment and transfers of Judges of the Supreme Court and High Courts in place of the ‘Collegium’ system hitherto in operation is likely to bring the Executive and the Legislature on one side and the Judiciary on the other on a course of confrontation.
It is noteworthy that almost all political parties have supported the new legislation. It is also a notable point that the ‘Collegiums’ was an instrument devised by the Honorable Supreme Court (first in 1993 and then fine-tuned in 1998)and does not have any constitutional backing and on the surface it is only in India where Judges appoint other Judges.
However, to analyze as to why this rare political unanimity has taken place a need arises to go back to the two rulings of the Honorable Supreme Court of India to answer the reason behind it.
In the famous Golaknath’s case (1967), the Supreme Court held that the fundamental rights were outside the purview of Parliament’s power to amend the Constitution. This triggered a growing demand among politicians to appoint Judges who were committed to the Government’s political philosophy. Then in Kesavananda Bharati case (1973), the court held that the “basic structure” or “the fundamental features” of the Constitution should not be altered by the process of amendment. After this the demand for “committed judge” got a further boost.
The Emergency that followed since June 1975 exposed the country to virtual dictatorship for about a year and a half and we must remember that during that period, the first victim was the Judiciary. Although the Emergency came to end in early 1977, fear of the Executive’s domination over the judiciary was seen as a looming danger. It was in that atmosphere that the Supreme Court devised the Collegiums to keep the judiciary out of bounds for the Executive. This arrangement has been in existence as said earlier since 1993 for over two decades.
With the constitution now having been amended to establish a permanent autonomous body called the National Judicial Appointments Selection Committee the days for the Collegiums seem to be ending.
The new law envisages or rather expects the commission to work with the assistance only of the Ministry; the independence of the Judiciary remains under cloud with the provision of Veto powers to “the Law Minister plus one” to reject decisions approved by the majority. The readers may also recall the rejection of the government recently of one name recommended by the Collegium for his appointment as a Judge of the Supreme Court. That clearly shows that the Executive even now had the power to accept or reject the nomination and thereby the fact that the function of the Collegiums was only recommendatory in nature. On the other side the fact remains that an alternate name could come only from the constituents of the Collegiums. The Executive is not ready even for this. Therefore, whether the new arrangement was passed with proper public participation or not is no longer valid now.
We are aware through news that the Chief Justice of India only a few days ago in the open court supported the Collegiums and many other predecessors of his also had expressed faith in that system. Also there is news that the new laws have been challenged in the Supreme Court and will be heard. The Honorable Court will now decide which of the two would survive. Thus the fear of confrontation is now a reality. The concept of committed Judiciary will be a great set back to our democracy. It is, therefore, necessary that enlightened citizens should come in the fore front and present a forceful public opinion against this concept so that independence of Judiciary could be ensured. In order to avoid a show-off a remodeled “Collegiums” may be suggested as a solution which could combine the good features of both-the Collegiums and the new law.