Supreme Court retains supremacy

The Hon’ble Supreme Court of India has on 17 October 15 struck down the Act forming the National Judicial Appointments Commission and reverted to the existing Collegium System of appointment of judges of the Supreme Court and all High Courts. In a layman’s language it can be said that an Act passed by the Parliament and assented by the President of India for making appointments to the higher judiciary by including many sections of the civil society like CJI, Executive, Law Minister, three eminent persons has been struck down as ultra- vires the Constitution of India. In the 5-judge bench the verdict was given by a majority of 4 to 1. The Court also barred any appeal against its present judgement but said that on 3 November 15 it would hear suggestions to improve the Collegium System that is being criticized as non-transparent and is flawed for selecting judges on grounds other than merit.

Thus the Supreme Court retains supremacy of the judiciary in higher judiciary appointments where the Executive or the Legislature will have no say whatsoever. Thus the Collegium system continues to remain as opaque as ever before and flaws allowing the corrupt and the incompetent judges to be appointed remain.

Soli Sorabjee, an eminent legal luminary, says that he is surprised to hear of the Supreme Court verdict in the matter. The five-judge bench has not faulted the new law on grounds of controverting the basic structure of the Constitution nor pointed out any major lacunae. The Supreme Court faulted the term Eminent Persons without any definition. Sorabjee said that the Supreme Court could have asked for an explanation on the subject instead of striking down the Law itself.

In the Common Man’s opinion the Hon’ble Supreme Court did not wish to part with the power it has been enjoying in the matter of appointment of judges to the higher judiciary. It did not wish to let in anyother authority or legal luminary and just maintain monopoly of the Chief Justice of India and the four senior most judges of the Supreme court who form the Collegium. Admittedly the present system is not flawless and that is the reason why the judgement in question has fixed 3 November 15 to hear suggestions to improve but at the same time it does not allow anyone else to have a say in the matter of appointment to higher judiciary.

The intention of the Parliament in enacting the new law was to remove corruption and nepotism in the selection of new judges but the Judiciary took it as an onslaught by the Legislature on Judiciary and struck the law down. Indeed it is the Supreme Court that speaks the last word on whether a new law, or even an old one, is in conformity with the Constitution of India or not.

However, the present Law passed by the Parliament and given assent to by the President of India does not alter the basic character of the Constitution of India. The five-judge bench, however, observed that the new Act of Parliament does violate independence of Judiciary by giving powers to the Executive to have a say in the appointment of judges of the higher judiciary.

Email:  sawantchitranjan@yahoo.com