Answer:

The ‘separation of powers’ doctrine, aims at separating power among legislature, executive and judiciary such that tyranny by the government may be prevented entirely as equal power vests in three separate organs which act as a check and balance for each other.

The role of the judiciary is to protect the rule of law and ensure supremacy of law. Thus judiciary must be independent from other organs of the government and must be able to perform their functions without fear or favor. Thus both separation of power and independence of judiciary are part of the basic structure.

Recently, the Supreme court struck down the NJAC act on the grounds of it being ultra vires of the constitution.

The Judges struck down the NJAC for judicial appointments on the grounds:

♤ Judges held that the concept of judicial independence included judicial appointments, and that the primacy of the judiciary in the appointments process was an integral part of maintaining judicial independence.

♤ By allowing for a situation in which the opinion of the judiciary could be vetoed by a combination of the law minister and the eminent members, this primacy was destroyed.

However, the annulment of NJAC raises various issues. For example:

♤ Many committees and parliamentary proceedings pointed towards irregular and malafide process of judicial appointments in hitherto collegium system on the

grounds of it being unaccountable, opaque, and problems of favouritism and nepotism

♤ It can be argued that to legislate is the function of the legislature and judiciary itself is infringing the doctrine of separation of power by annulling the legislation.

♤ In countries such as Britain, there is an independent body that appoint judges, while in the USA, federal judges are appointed by the president with the advice and consent of the senate.

In this context, the Supreme Court should undertake reforms in the collegium system and also involve executive in the selection committee in way that it remains independent from political interference at the same time being accountable to the democratic traditions. Most importantly the process of selection itself should be transparent which is not in collegium and NJAC also didn’t try to solve this issue.