The Silent Indian Coup: How the Supreme Court has Hijacked our Country and Why We Must All Be Worried
In fact, we should really be panicking and screaming. But being ignorant of the happenings in our country, we the people, are stuck in inaction and complacency. In a democracy all power vests with the people. Any source of power that doesn’t ultimately lead back to the people is a dictatorship – an aberration. And 25 years back in 1993 that is exactly what happened. Through its order in the “Supreme Court Advocates-on Record Association vs Union of India” case, the Supreme Court unilaterally declared that its power did not stem from the people and that they had full autonomy over how they function and how Judges will be appointed and created the incestuous Collegium system – thereby making the legal system its own private garden owned by the current set of Judges and giving legitimacy to their idiosyncratic ideas and biases.
And like all dictatorships that try to retain power at all costs and crush any threat to their power, in January 2013, the Court in its own infinite wisdom rejected a public interest litigation filed by NGO Suraz India Trust that sought to challenge the collegium system of appointment.
The Government of the day which was more interested in looting the country and didn’t care about implementing its will kept quiet and carried on. But fast forward 20 years and we now finally have a Government that represents the people and is worried that their mandate is being willy-nilly played with by the Court with random prejudiced ideas of a select group of oligarchs with archaic views of the world. But when the Government finally passed the National Judicial Appointments Commission (NJAC) Bill, 2014 to scrap the Collegium system of appointment of Judges and the President approved of it, by a majority opinion of 4:1, on 16 October 2015, Supreme Court (who like any dictatorship adjudicates any complaint about itself) struck down the constitutional amendment and the NJAC Act declaring that NJAC is interfering with the autonomy of the judiciary by the executive which amounts to tampering of the basic structure of the constitution where parliament is not empowered to change the basic structure!
Unilaterally the Supreme Court, through three Judgements effectively did a Coup of the Republic of India. Now the Supreme Court controls all its internal functions and does not stand any interference from the people. They can decide which laws passed and which ones they consider as wrong (read against the interests of the Judiciary).
This is the basic reason the Court has now been interfering in all aspects of the country – whether it feels women should be allowed into Sabarimala or whether they feel the Government must start deciding which way temples and rituals should be run (so long as they agree to the views of the Court that is). This is a very dangerous situation which will soon explode out of hand. Power corrupts and absolute power corrupts absolutely. And we are witnessing this in action in India – though in slow motion and in dimmed light.
We are on the verge of a showdown between the people and the oligarchs – a civil war of sorts. If sense prevails amongst the Judiciary they will revert the cancerous laws and restore power to the people. Else, I am guessing the Government will have to take a stronger action and take power back by force – which will not augur well for the future of the court and the confidence of the people in it.
And ultimately if that does not happen, it will fall upon us the people to fight on the streets and take back the rights that eventually derive from us. And that has never been a pretty sight whenever and wherever in the world that has happened.
Three Judges Cases
The Supreme Court of India‘s collegium system, which appoints judges to the nation’s constitutional courts, has its genesis in, and continued basis resting on, three of its own judgments which are collectively known as the Three Judges Cases.
Following are the three cases:
- S. P. Gupta v. Union of India – 1982 (also known as the Judges’ Transfer case)
- Supreme Court Advocates-on Record Association vs Union of India – 1993
- In re Special Reference 1 of 1998
Over the course of the three cases, the court evolved the principle of judicial independence to mean that no other branch of the state – including the legislature and the executive – would have any say in the appointment of judges. The court then created the collegium system, which has been in use since the judgment in the Second Judges Case  was issued in 1993. There is no mention of the collegium either in the original Constitution of India or in successive amendments. Although the creation of the collegium system was viewed as controversial by legal scholars and jurists outside India, her citizens, and notably, Parliament and the executive, have done little to replace it. The Third Judges Case of 1998  is not a case but an opinion delivered by the Supreme Court of India responding to a question of law regarding the collegium system, raised by then President of India K. R. Narayanan, in July 1998 under his constitutional powers.
On 5 September 2013, the Rajya Sabha passed The Constitution(120th Amendment) bill, 2013, that amends articles 124(2) and 217(1) of the Constitution of India, 1950 and establishes the Judicial Appointment Commission, on whose recommendation the President would appoint judges to the higher judiciary. The critical aspect about the new setup that the Government through the amendment seeks to achieve is the composition of the judicial appointment commission, the responsibility of which the amendment bill lays on the hands of the Parliament to regulate by way of Acts, rules, regulations etc. passed through the regular legislative process.
Judicial meaning of the word “Recommendation”
In the judgement on the presidential reference, Supreme Court has dealt elaborately, the modality of rendering recommendation by a constitutional entity such as Supreme Court, President of India, etc, It is not at the discretion of the person consulted to render the recommendation but internal consultations with the peers shall be made in writing and the recommendation shall be made in accordance with the internal consultations.
National Judicial Appointments Commission established
The Lok Sabha on 13 August 2014 and the Rajya Sabha on 14 August 2014 passed the National Judicial Appointments Commission (NJAC) Bill, 2014 to scrap the collegium system of appointment of Judges. The President of India has given his assent to the National Judicial Appointments Commission Bill, 2014 on 31 December 2014, after which the bill has been renamed as the National Judicial Appointments Commission Act, 2014.
99th Amendment and NJAC Act quashed by Supreme court
By a majority opinion of 4:1, on 16 October 2015, Supreme Court struck down the constitutional amendment and the NJAC Act restoring the two-decade old collegium system of judges appointing judges in higher judiciary. Supreme Court declared that NJAC is interfering with the autonomy of the judiciary by the executive which amounts to tampering of the basic structure of the constitution where parliament is not empowered to change the basic structure. However Supreme Court has acknowledged that the collegium system of judges appointing judges is lacking transparency and credibility which would be rectified/improved by the Judiciary.
- Bhagwati, P. “S. P. Gupta v. President of India”. indiankanoon.org. Indian Kanoon. Retrieved 15 January 2013.
- Verma (for the majority), J S. “Supreme Court Advocates-on-Record Association v. Union of India”. indiankanoon.org. Indian Kanoon. Retrieved 15 January 2013.
- Barucha, S. P. “In re Special Reference 1 of 1998”. indiankanoon.org. Indian Kanoon. Retrieved 15 January 2013.
- Express News Service. “Apex court junks PIL to revisit collegium system”. The Indian Express. Retrieved 15 January 2013.
- “No need to change collegium system : Justice Sathasivam”. NiTi Central. 3 July 2013. Retrieved 16 July 2013.
- “Elders Clear bill to set up Judicial Appointment Commission”. The Hindu. 5 October 2013. Retrieved 12 October 2013.
- “SC declares NJAC unconstitutional; Chelameswar J dissents [Read Judgment]”. 1, Law Street. 16 October 2015. Retrieved 3 November 2011.
- Supreme Court of India (PDF). Supreme Court of India http://supremecourtofindia.nic.in/FileServer/2015-10-16_1444997560.pdf#page=453
- “SC Bench strikes down NJAC Act as ‘unconstitutional and void'”. The Hindu. 17 October 2015. Retrieved 17 October 2015.