ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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When the Government Leans on Judges

Is the Gopal Subramanium case a harbinger of the executive asserting its power?

The scales of the balance in appointments to judges of the apex court may have shifted again. Prior to 1993 the executive had the upper hand, with the requirement of consulting the judiciary but not obliged to accept its views. The Second Judges Case virtually reversed this position, and in the Presidential Reference of 1998 set down the details of the collegium system. The names are to be put forth by a collegium consisting of the Chief Justice of India (CJI) and his four senior-most colleagues. The government may return a name with objections; but if the collegium still reiterates its choice, the appointment must go through. The judiciary has the first, and last, word.

The 1993 decision itself was accepted without much protest by the political class, which was surprising since it was a major constitutional shift achieved without amendment. Over the years the executive has largely accepted the appointments proposed by the Court. Where there was a difference, the judges prevailed. The judicial branch seemed pretty much in control of appointments to its benches, which incidentally is a rarity the world over. It helped that barring one, all appointments to the Court since the Judges case were made from chief justices or senior judges from the high courts; these are not so easy to impugn given the judges’ long years of judicial service.

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