The Supreme Court Friday struck down a law giving Prime Minister Narendra Modi’s government a bigger say in the appointment of top judges, calling the new system harmful to judicial independence in the world’s largest democracy, agencies report.


The top court has a history of judicial activism that can prove disconcerting for governments, who say courts often exceed their powers in announcing decisions.

The Supreme Court took the previous administration to task over issues such as corruption and human rights, for instance.

A new system introduced by Modi’s government last year included the union law minister on a National Judicial Appointment Commission (NJAC) that appoints senior judges. The old system had vested those powers in a group of India’s top judges called the collegium.

‘Will of the people is Constitution’

The Supreme Court said it was the constitution of India that represented the will of the people and not parliament which at any given point of time represented only the will of the majority and did not enjoy unlimited powers to amend the constitution.

“The will of the people is the constitution while the parliament represents the will of the majority at a given point of time which is subordinate to the Constitution, that is, the will of the people”, said Justice Adarsh Kumar Goel in his separate reasoning to declare constitution’s 99th amendment and the act setting up the NJAC unconstitutional.

The constitution was supreme and even parliament has no unlimited amending power, Justice Goel said as he rejected the government’s defense of NJAC, contending that it was passed by the parliament which represented the will of the people, and any interference with it would be undesirable and contrary to the law.

Justice Goel held that judiciary had to be independent of executive as it had to adjudicate disputes between the central and the state governments, between a citizen and the state or between a citizen and a citizen, disputes relating to the powers of parliament and state assemblies, issues of constitutionality or legality in the exercise of executive power and the allegation of malafides even against highest constitutional dignitaries.

Holding that there could be no footprint of executive in judicial appointments, he said: “This requires an impartial and independent judiciary. The judiciary is required to be separate from the executive control. Judiciary has to inspire confidence of the people for its impartiality and competence.”

“Even if the judiciary is not an elected body, it discharges the constitutional functions as per the will of the people reflected in the constitution and the task of determining the powers of various constitutional organs is entrusted to the judiciary.”

Holding that the judiciary had “apolitical commitment in its functioning”, Justice Goel in a poser asked once “independence of judiciary is acknowledged as a basic feature of the Constitution, question is whether power of appointing judges can be delinked from the concept of independence of judiciary or is integral part of it.
“Can the independence of judiciary be maintained even if the appointment of judges is controlled directly or indirectly by the executive?”

“It is the faith of the people in the impartiality and competence of judiciary which sustains democracy. If appointment of judges, which is integral to functioning of judiciary is influenced or controlled by the executive, it will certainly affect impartiality of judges and their functioning. Faith of people in impartiality and effectiveness of judiciary in protecting their constitutional rights will be eroded,” he said.

‘Setback to parliamentary sovereignty’

Expressing “surprise” over the Supreme Court’s decision, the government questioned the transparency of the old collegium system which has been revived with the verdict.

Law Minister D.V. Sadananda Gowda said the next course of action will be decided after consultations with Prime Minister Narendra Modi and cabinet colleagues.

Telecom Minister Ravi Shankar Prasad and Attorney General Mukul Rohatgi too questioned the collegium system.

Prasad also said the verdict is a setback to Parliamentary sovereignty.

“The Supreme Court has said that from November 3 it will hear the issue of improving the collegium system. It shows that there was something wrong in the collegium system,” Prasad said.

Rohatgi expressed similar sentiments after the landmark verdict.

“Appointments will continue to be made in an opaque system where all stakeholders will not have a voice. The collegium system is not found in the Constitution and according to me, the system is not appropriate,” he said.

“Whether collegium system will be changed or not is in the wisdom of the court. But if it needs to be improved, it means it wasn’t correct in the first place,” he said.

While Gowda and Prasad, a former Law Minister, said the government will come out with a structured response after going through the order, the AG ruled out the option of seeking review in the matter saying, “I don’t think it is a case for review at all as the verdict is detailed and runs into over a thousand pages.”

According to Prashant Bhushan, one of the lawyers who challenged the new law, “The court said it (the panel) will obstruct judicial independence that is the backbone of the constitution.”

Some lawyers say the old and new systems of appointing judges are not ideal.

“A system of judges appointing themselves is imperfect,” said Karuna Nundy, a Supreme Court lawyer, who does not back the new system because she fears it gives the government the power to influence decisions.

“Let’s not forget that the government of India is the largest litigant before the courts,” she said.

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