A True Justice is Index of Judiciary- Government Power Balance
While jurisprudence is credited to the Romans, the French claim justice: liberty, equality, fraternity. A century later, the 18th-century French philosopher Montesquieu, considered the father of the theory of balance and control in democracy, wrote in the 'Spirit of Laws' "To prevent this abuse (of power), it is necessary by the very nature of things that power should control power" and "The principle of democracy is corrupted not only when the spirit of equality is lost, But even when a spirit of extreme equality is adopted. "
He argued for the separation of power of church and state so as to protect democracy from nepotism, dictatorship and perversion. His recipe has stood the test of civilizational times: the legislative branch makes laws, the executive enforces them, and the judiciary interprets them. He emphasized that these powers should remain separate, yet interdependent. India is still trying to figure out the shape of a structure that facilitates the independent, yet interdependent, harmonious functioning of the three branches.
As the slogan of alleged cash recovery from the house of Delhi High Court judge Yashwant Varma comes to light, the undeclared cold war between the executive, the legislative and the judiciary has come out of the deep freeze. The scandal has acquired epic dimensions for the judiciary. It has become a powerful and legitimate excuse for the political establishment to subdue the judiciary, blaming the primary right to appoint judges to the collegium 'the judiciary is meant by judges, for judges and not for judges'. Instead of seeing this famous scandal as an ugly exception, the establishment is in a furious rush to control the judiciary's power to choose judges for the high courts.
The Emergency of 1975 was a turning point in this conflict. The ruling politicians were the ones who chose the judges. The Chief Justice was a rubber stamp who had only one role: to give the green light to names decided by the government. This led to human rights violations and also supersession of some judges.
The irony was that it was the judiciary which gave these unlimited powers. Since the Constitution provides for only 'consultation' with the Chief Justice for judicial appointments, many legal scholars claimed that constitutional consent gave an unfair advantage to the government. The matter eventually reached the Supreme Court. By then the Emergency was over, but Indira was again in power. In 1981, Chief Justice P.N. A seven-member bench headed by Bhagwati delivered the first verdict in "three-judge cases". The court ruled (S.P. Gupta v. Union of India, 1981) that "consultation" in Articles 124 and 217 of the Constitution does not mean "concurrence", and it gives preference to the executive over the Chief Justice in judicial appointments, whose opinion was not binding on the President. According to various news reports and parliamentary debates, the Congress governments led by Indira Gandhi and then Rajiv Gandhi used the executive power to fill the bench with names of their choice.
Proponents of an independent judiciary did not give up. Naturally, this again led to a bitter dispute between the opposition and the Congress. Justice J.S. A nine-judge bench headed by Justice V.R. Verma, while writing the final verdict in the 'second judges' case, dismissed the 'first judges case' and interpreted 'consultation' as 'consent' and set up the collegium system. The ruling excluded the executive from the judge-selection process and empowered the Chief Justice, in consultation with the two most senior judges, to make the final decision. The battle between the judiciary and the executive did not end there. The Atal Bihari Vajpayee government questioned the strength of the collegium. It sought clarification from the Supreme Court through the President about the number of collegium members, the role of the government in suggesting names, and the legality of the government's rejection of the name suggested by the collegium through judicial review. Chief Justice S.P. The definitive and firm verdict of a nine-member bench led by Barucha increased the number of collegium members from three to five and completely ruled out any role of the government except questioning the integrity of the proposed names. This is the final law with regard to selection of judges, as the situation stands.
For the last three decades, the government and political parties have not been able to digest the idea of a completely separate judicial system. They feel that the system is not transparent because decisions are taken behind closed doors by judges, without public disclosure of selection or rejection norms or logic. This opacity has fuelled allegations of high-handedness, as seen in 2019 when the collegium's decision to elevate Justices Pradeep Nandrajog and Rajendra Menon was reversed after one of the members retired. Justices Dinesh Maheshwari and Sanjiv Khanna, the current Chief Justice, were appointed two months later.
The BJP government passed the National Judicial Appointments Commission (NJAC) through the Constitution (99th Amendment) Act and the NJAC Act. The NJAC tried to replace the collegium with a six-member panel comprising the Chief Justice, two senior Supreme Court judges, the Union law minister, and two eminent persons who were chosen by the committee including the Chief Justice, the Prime Minister, and the Leader of the Opposition. The purpose of this mixed model was to balance judicial independence with executive input, increasing transparency and accountability. The NJAC promised a comprehensive consultative process: no appointment could go ahead if two members objected, ensuring consent rather than a unilateral decision, preventing nepotism and speeding up appointments. However, the Supreme Court rejected it by a 4:1 majority in the 'Fourth Judges Case' (2015). The majority was of the view that the NJAC violates the "basic structure" of the Constitution, especially the principle of judicial independence, as it gives equal status to politicians in appointments that were considered a threat to judicial autonomy.
If the rejection of the NJAC was a missed possibility for some, for others it was a victory for freedom. Critics argue that the court's decision reflects an unwillingness to relinquish control, prioritizing autonomy over accountability. Yet, while the government chose the path of reconciliation by proposing a revised Memorandum of Procedure (MoP) to guide collegium appointments, differences remain between the two giants. Even after eight years, the MOP is in a long hung moment. By completely excluding the executive and giving unchecked power to the judiciary, the constitutional principle of separation of powers seems to be under threat. However, the government can veto the appointment by delaying action on the recommendations of the collegium or rejecting them by raising issues of integrity.
A balanced solution lies not in abolishing the collegium, but in refining it, in regenerating a reconstituted NJAC so that it is in conformity with democratic principles. Judicial independence must co-exist with accountability, ensuring that the selection of judges reflects merit, experience, integrity and public trust. An institutional framework where the Chief Justice has the final authority, as a key partner of the executive, is a solution. As the debate intensifies, the stakes are high: the judiciary may lose the legitimacy it wants to maintain. Lord Mansfield, the 18th-century British judge who proclaimed 'Fiat Justitia, Ruat Salem,' (Justice be done, even if the heavens fall) had an argument. Though colonial rule ended 7 decades ago, heavens will not fall if compromise becomes the basis of the judiciary instead of hostility.