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[CA 22-08-2016] Executive vs. Judiciary | Saudi – Iran Cold War

Executive vs. Judiciary

Collegium system of appointment of judges

  • First Judges Case, the Supreme Court found that the word “consultation” did not mean “concurrence.” The Court held that the opinion of the Chief Justice in making transfers was not binding on the executive, although a departure from his or her opinion could be made in exceptional circumstances.
  • Supreme Court dramatically altered the position in the Second Judges Case. In the Second Judges Case, it ruled that the word “consultation” in Articles 124 and 217 denoted “concurrence,” and that primacy in making judicial appointments is vested with the Chief Justice.
  • This decision was later affirmed with certain modifications in the Third Judges Case, and it was held that the ultimate authority to make appointments to the Supreme Court lay with a collegium of judges comprising the Chief Justice and his or her four senior-most colleagues.
  • Through the Second and Third Judges cases, the Supreme Court virtually appropriated unto itself the power to appoint judges. [But Constitution gives these powers to executive]

Problems with the existing Collegium system of appointment of judges

  • Lack of transparency and accountability – collegium does closed door appointments leading to favoritism and corruption.
  • Extra-constitutional [In the Constitution (as originally enacted), the power to appoint judges to High Courts and the Supreme Court rests with the executive].
  • Collegium system is redundant and doesn’t encourage essential reforms in judicial system.

Attempts to get rid of the Collegium System

  • NJAC Bill (99th Constitution Amendment Bill) was introduced to replace the Collegium System with NJAC.
  • Passed by both Lok Sabha and Rajya Sabha.
  • Ratified by half of the country’s State legislatures.
  • President’s assent is secured.
  • Oct, 2015: SC constitutional bench deems NJAC Act unconstitutional.

Important points from the Oct, 2015 Judgment

Justice J.S. Khehar presided the five-judge Constitution Bench.

The Bench in a majority of 4:1 rejected the NJAC Act.

  • Judiciary cannot risk being caught in a “web of indebtedness” towards the government.
  • In India, the organic development of civil society, has not as yet sufficiently evolved. [people are not mature enough]
  • Judiciary’s role to safeguard the rights of the citizens can only be ensured by keeping it absolutely insulated and independent from other organs of governance.
  • Bench admitted that all is not well even with the collegium system of “judges appointing judges”, and that the time is ripe to improve the system of judicial appointments.
  • The SC asked the country to come up with meaningful recommendations.

Why was NJAC declared Unconstitutional?

Composition of NJAC

  1. Chief Justice of India as its ex officio chairperson,
  2. the two senior-most judges of the Supreme Court following the Chief Justice,
  3. the Law Minister, and
  4. two ‘eminent persons’ to be nominated jointly by the Prime Minister, the Chief Justice of India and the Leader of the Opposition.
  • The NJAC will be responsible for making binding recommendations to the President for appointing judges to the Supreme Court and to various High Courts.

SC felt that the inclusion of ‘Law Minister’ and ‘two eminent persons’ can lead to excessive political interference in the appointment of judges and that could severely scuttle the independent functioning of judiciary.

Independence of Judiciary as ensured by the constitution

As per the Constitution of India

  • The judges of the Supreme Court and the High Courts serve not at the pleasure of the President, but until they attain a fixed age;
  • Salaries and allowances of the judges are charged from the Consolidated Fund of the State(which is incapable of being a subject of a vote by a Legislative Assembly);
  • Discussion in the State legislatures on the conduct of any judge is expressly barred;
  • Powers are conferred on the High Court to punish for contempt of itself; and,
  • Judges of the higher judiciary can be removed only through a complicated process of impeachment by Parliament.
  • Given wide powers of judicial review including the power to strike down laws made by Parliament.

Executive vs. Judiciary

  • After the NJAC Bill was watered down by the judiciary, a tug of war ensued between the judiciary and the executive over the appointment of judges to the High Courts and Supreme Court.
  • Hundreds of judge posts in SC and HCs remain unoccupied since the past one year.

Memorandum of Procedure (MoP)

  • Supreme Court judgments gave rise to the collegium of the five senior-most Supreme Court judges who exercised the supreme power of appointment to the judicial ranks.
  • The judgments provided for a consultative process between the executive and judiciary, and for the government to return for reconsideration a name sent by the collegium.
  • However, the appointment had to be made if the collegium reiterated its view.
  • The methodology for consultation was contained in a Memorandum of Procedure (MoP) formulated in 1999.
  • MoP seeks to “widen the zone of consideration” to reduce arbitrariness as well as nullify perceptions of favouritism in making judicial appointments and transfers.
  • Greater transparency is sought to be introduced through a process of vetting by screening committees at the high court and Supreme Court levels.
  • It envisages a permanent secretariat for the collegium to gather and scrutinize data relating to prospective appointees.
  • It lays down a judicial mechanism for redress of complaints against judges.

Post watering down NJAC Bill – Vacancies in HCs and SC

  • SC heeded the request of Attorney General that the government should be permitted to reformulate the MoP [big mistake by Judiciary].
  • SC permitted the government to formulate a revised MoP, the court was careful to mention the points that needed to be addressed, namely eligibility criteria, measures for transparency, establishment of a Secretariat, and a complaints mechanism.
  • Government ceased the opportunity and used the MoP to stall the appointment of judges.
  • Government kept rejecting candidates on the ground of national security or public interest as such rejection is binding on the court.
  • In simple terms, the last word would belong to the executive whenever this reason is invoked.


  • The present logjam is hurting the already overloaded judiciary. The ultimate losers in the Judiciary vs. Executive battle are the general public.
  • It’s time for the government to be more sensitive and take proactive steps to prevent the logjam by holding consultations with the judiciary.
  • The Supreme Court could even consider recalling its order permitting the government to draft the revised MoP.

Recording votes in Parliament

Voice Vote
  • Parliament passes most of the bills by voice vote.
  • When the Speaker put the Bill to vote, MPs supporting it say “Aye”, those opposing it say “No”, and the Speaker judges by the chorus.
  • If the speaker is convinced that “Aye” had more people, then he concludes that the bill is passed.
  • If any member challenges the Speaker’s decision, a division must be called.
  • Voice vote doesn’t give a clarity on how each MP voted in the House.
Recorded vote or Division
  • In some cases where the bill is a constitutional amendment bill the votes are recorded (also called ‘division’).
  • These bills require the support of a majority and two-thirds majority of those present and voting; therefore, everyone’s vote needs to be recorded and counted.
Ensuring accountability
  • In a parliamentary democracy, MPs are accountable for their actions to citizens. This means that citizens have the right to know how their MPs voted on each Bill or issue.
  • In the absence of such information, citizens cannot ask their representatives to justify the way they voted on any issue.
Anti-defection law complicates things
  • Every MP is required to vote according to the party whip, failing which they could lose their seat in Parliament under anti-defection law.
  • Therefore, one could argue that recording the vote of each MP is irrelevant as the final vote is pre-determined by each party’s leadership.

Arguments against anti-defection law

Anti-defection law questions the very structure of representative democracy.

  • Every MP is required to vote according to the party whip, failing which they could lose their seat in Parliament under anti-defection law.
  • Hence any debate in Parliament becomes irrelevant as the final vote is pre-determined by each party’s leadership.
  • If the anti-defection law is revoked, democratic deliberation will be further strengthened.
  • If the government proposes any new law, it will have to convince a majority of MPs instead of just a few party leaders.
  • This will necessitate arguments using evidence and reason as backroom negotiations would be far more difficult with a large number of MPs.

Saudi – Iran Cold War

History: Sunni – Shia Rivalry

  • After Prophet Muhammad’s death, a war of succession broke out between two groups of his followers. These two groups are Sunni and Shia.
  • Sunni group wanted a close companion of Prophet Muhammad as the Caliph of the Muslim community while the Shia wanted Prophet Muhammad’s son-in-law to be appointed as the Caliph.
  • Sunnis prevailed over Shias and they became the most dominant group of Islam.
  • Since then, there is intense rivalry between Shia and Sunni groups/countries.
  • Presently, Sunnis make up 85-90% of Muslim population while the rest are Shia.
  • Iran, Iraq, Azerbaijan and Bahrain are Shia majority countries and the rest of the Islamic countries are Sunni majority.
  • Before the occupation of Turkey (Sunni majority) by the British, The Caliphate of Turkey was like the leader of the Islamic world.
  • After WW I the British partitioned Turkey and Caliphate was weakened. (The Khilafat movement (1919–26) happened because of this reason)
  • Turkey lost the ‘The Leader of the Islamic World’ status and the leadership went into the hands of Saudi Arabia (another major Sunni Majority country)(Oil makes the difference).
  • Iran, being a Shia majority, was not ready to accept one more Sunni country trying to dominate the Islamic world.
  • Iran tried and is trying to reduce the influence of Saudi Arabia on the Islamic world.
  • Both side apply their own tactics to undermine each other’s influence on the Islamic world.
  • They started a proxy war by trying to gather allies and install friendly regimes in Muslim majority countries, especially in the Middle East and Northern Africa.
  • Iran started supporting Shia regimes (Iraq, Syria has Bashar Al Assad – Shia President, Lebanon has the Hezbollah – Shia militant group) while the Saudi is defending its status by trying to install Sunni regimes where ever possible.
  • ISIS and Yemen war are a direct consequence of the rivalry between Saudi and Iran.
  • USA and Russia are the 3rd parties that add fire to the existing rivalry in order to secure their own selfish interests (Oil, weapon supply, markets, allies, etc.)

Saudi wages war in Yemen



  • Saudi Arabia went to war in Yemen in March 2015 when the Houthi rebels, backed by Iran, toppled the leader of Yemen (Saudi ally) and occupied its capital Sana’a.
  • Saudi was in no mood to tolerate a proxy of Iran (Houthis) dancing on its own backyard. So it waged a war in Yemen.
  • Regionally, with or without the Houthis, Iran remains a powerful force and the Saudi failed miserably as it was unable to make progress in Yemen.
  • Most of the Yemen still remains under the influence of Houthis.
  • Saudi’s war in Yemen created a humanitarian catastrophe, worsened regional security and helped terror groups thrive.
  • Saudi gained nothing & ended up making Yemen a recruiting ground for Al Qaeda and ISIS.

U.S. has offered full support to Saudi in Yemen

  • S.-Saudi cooperation goes back to 1945 when the America promised security to Saudi King in return for oil.
  • Though the U.S.’s oil dependence on Saudi has come down in recent years (shale oil boom), the geopolitical and economic aspects are ever more significant.
  • Saudi is upset with U.S’s nuclear diplomacy with Iran. So, U.S. wants to mollify some of the Saudi security concerns by offering its full cooperation in Yemen.
  • S. doesn’t want to lose its favorite customer: Almost 10 per cent of U.S. arms exports goes to Saudi Arabia, and 9 per cent to the United Arab Emirates, an ally of Riyadh in the Yemen war.

Syrian civil war

  • Bashar Al Assad’s regime suppressed the voices of dissent through violent means.
  • Protesters stuck to violent methods unlike their counterparts in Egypt and Tunisia.
  • Syria’s rivals in West Asia (Sunni Majority neighbors of Syria, especially Saudi Arabia and Turkey) exploited the conflict (They created ISIS).
  • Miserable failure of the international system to intervene (UN could do nothing. India and China remained mute spectators.).
  • Undue interference of regional (Saudi Arabia vs. Iran) and global powers (U.S.A vs. Russia). (The primary culprits need to pack their bags and go away if peace has to prevail).
  • Syrian Civil war gave birth to ISIS.
  • It lead to the death of more than 4,00,000 civilians.
  • It caused the biggest refugee crisis ever.
  • EU became the biggest fool (refugee crisis widened cracks in EU). It became the victim of U.S.A’s misadventures. [Brexit gained mass appeal because of the Refugee crisis].
  • Islamophobia reached new heights. Trump like fascists are trying to fully manipulate the existing sentiment.
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