STRAINING THE SCALES: BALANCING JUDICIAL INDEPENDENCE AGAINST EXECUTIVE FUNCTIONS UNDER THE SEPARATION OF POWERS

There has been a long-standing debate pertaining to appointment and transfer of judges in the higher Judiciary of India. This controversy did not arise in post-independence between the Executive and the Judiciary under the Separation of Powers but has been there ever since the colonial period when the first Supreme Court of Judicature was established in Calcutta. The Constitution of India enforced in 1950, provided the procedure for appointment of judges in the Higher Judiciary. However, different approaches have been taken in the appointment the judges in the higher Judiciary complying with the mandatory procedure enshrined in the Constitution of India. This article critically and impartially examines the processes adopted by the Executive and the Judiciary in the appointment of Supreme Court judges over the years since the enforcement of the Constitution of India in 1950. This paper also examines whether a fair balance between the independence of judiciary and the transparency in judicial appointments is maintained or if one branch is being favoured over the other in the current system.