Vice-President questions involvement of CJI in executive appointments

Sub: Polity

Sec: Judiciary

Context:

Vice-President Jagdeep Dhankhar raised significant concerns about the involvement of the Chief Justice of India (CJI) in the selection of executive appointments, specifically the CBI director.
Dhankhar questioned the legal rationale for this practice and emphasized the importance of maintaining the separation of powers in India’s democratic framework.

Separation of powers:

The concept of separation of powers is a fundamental principle of governance that divides the functions and powers of the government into three distinct branches: the Executive, the Legislature, and the Judiciary.
This ensures a system of checks and balances, where no branch becomes too powerful or infringes on the roles of the others.
The Indian Constitution embodies this principle to maintain democratic governance and uphold the rule of law.

Separation of Powers in Practice:

The separation of powers in India is not absolute but is designed to ensure cooperation and coordination between the branches of government. The Constitution allows for a degree of overlap, particularly in areas like:
Judicial appointments: The Collegium system allows for judicial appointments to be made by the Executive, in consultation with the judiciary.
Legislative-executive overlap: The President’s powers, such as issuing ordinances, can sometimes give the Executive significant influence in lawmaking.

Challenges to the Separation of Powers:

Judicial activism: The judiciary sometimes intervenes in areas traditionally considered to be the domain of the Executive or Legislature. For instance, judicial decisions on executive policies, such as environmental issues or governance-related matters, may raise concerns over the judiciary’s overreach.
Executive influence on the judiciary: There are instances where the Executive may try to influence judicial appointments or the functioning of judicial bodies, as seen in debates over the Collegium system.

Constitutional Provisions:

Article 50directs the State to take steps to separate the judiciary from the executive.
Articles 74 and 163 restrict the courts from inquiring into the advice tendered by the Council of Ministers to the President and the Governor.
Articles 122 and 212 restrict the courts from questioning the validity of proceedings in the Parliament and the Legislatures.
Articles 121 and 211restrict the Parliament and the State Legislature from discussing the Judicial conduct of a judge of the Supreme Court and the High Courts unless the resolution of removal of the judge is under consideration.
Article 361 provides immunity to the President or the Governor from being answerable to any court for the exercise and performance of the powers and duties of his office.

Committee to appoint CBI director:

In 2014, the Lokpal Act provided a committee for appointment of CBI Director:
The committee is headed by the Prime Minister.
Members: Leader of Opposition or Leader of the single largest opposition party, Chief Justice of India or a Supreme Court judge nominated by the Chief Justice.