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Detrimental standoff

A Mexican standoff is a confrontation between two or more parties in which none of the parties can proceed or retreat without exposing themselves to scrutiny and danger. As a result, all participants need to maintain the strategic tension, which remains unresolved until some outside event makes it possible to resolve it. Ever since the Bharatiya Janata Party-led government successfully steered the National Judicial Appointments Bill and 121st Constitution Amendment Act through Parliament, it finds itself locked in a tense Mexican standoff with the judiciary.

There are many proximate causes for this current impasse between the government and the judiciary. The most obvious one is the lack of mutual consensus over who should appoint Supreme Court judges. Critics of the collegium system of appointments have insisted that the judicial appointments process lacks transparency and accountability.

This is not an inaccurate assessment, to say the least. India is a country where the most powerful functionaries of the country end up being selected on relative merit. The politicians who govern our country have to convince the electorate that they are better than their opponents in order to get elected. The judicial appointments system however has no such scrutiny. Appointments to the Supreme Court are recommended by collegiums of senior-most judges.

This is problematic because a democracy works smoothly only if there is a fine balance of checks and balances. The system of checks and balances plays a vitally important role in ensuring that none of the three branches of government: executive, legislative and judicial can limit the powers of the others. This way, no one branch becomes too powerful. Except that this concept has not really translated into reality. Recurring judicial activism has disturbed the delicate balance of powers enshrined in the Constitution of India. It’s not as if our Supreme Court justices have not noticed these discomfiting lacunae. “Judges must know their limits and must not try to run the Government.

They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State i.e. the legislature, the executive and the judiciary must have respect for the others and not encroach into each other’s domain,” observed a bench comprising Justices A K Mathur and Markandeya Katju.

This is why The National Judicial Appointments Commission Bill has become a relentless turf war of sorts between the government and the judiciary. This standoff between the two has ended up having detrimental effects on the efficacy of the justice system. If judges continue to retire and no replacements are appointed because of this current logjam, then the legal system would likely collapse. Therefore in the interest of the nation, it is imperative that the judiciary and the government resolved their differences fast.


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