- The framers of our Constitution did not intend the judiciary to be “superior” to Parliament and the executive, but intended it to be the sentinel on the qui vive should the other two wings overstep the boundaries of their jurisdiction or omit to discharge their duty as public trustees.
- Firstly, all three limbs of the sovereign power have distinct functions and powers. Though they may overlap in some respects, the constitutional demarcation (separation of powers) is not eroded because of such overlap.
For instance, under Article 145(1), the Supreme Court can make rules for regulating the practice and procedure of the court, which is essentially a legislative function. However, such power can be exercised only with the approval of the president and is subject to the provisions of any law made by Parliament.
- Secondly, the judiciary is not accountable in the manner that the executive is accountable, even though all the three limbs source their power to the people. It is a constitutional imperative that an authority must be accountable if it wields power. Since the appointment of judges is an executive function and not an adjudicatory function, accountability follows as its inseparable concomitant.
- Thirdly, the public has interest in the general administration of justice and the government is the elected trustee of public interest. Therefore, it must at least be allowed to have a say in the appointment of judges.
- Fourthly, the “primacy” of the judiciary was neither intended nor provided for by the Constituent Assembly. The primacy of the chief justice of India or a collegium of judges cannot be part of the basic structure of the Constitution.
A collegium of five judges curtails the discretion of the president, enshrined in Article 124(2), to consult such judges of the Supreme Court and high courts as he may “deem necessary for the purpose”.
- Lastly, the parameter for judicial review of a constitution amendment is very narrow, because democracy is based on the principle of majority.
- Judicial review is not intended to create what is sometimes called judicial oligarchy, the aristocracy of the robe, covert legislation, or judge-made law. The proper forum to fight for the wise use of the legislative authority is that of public opinion and legislative assemblies. Such contest cannot be transferred to the judicial arena.
- Article 145(3) states that a “minimum” of five judges are to sit for the purpose of deciding any case involving a substantial question of law pertaining to interpretation of the Constitution or a presidential reference under Article 143. The use of the word “minimum” implies that the composition of the bench has to be decided according to the needs of the time and the importance of the constitutional question.