I must confess and state that I am strongly against judicial activism and the prevalent attitude of the Court to frame law and make people and institutions subject to it. Protecting the rights of the individual and seeking to enforce them under writs of mandamus and ‘public interests litigations’ is one thing; but to totally transcend Constitutional dictats and attain a degree of superiority over the other two branches in non-fundamental rights areas is totally another. In the latter, I talk with specific reference to the ‘Judges cases’ and the practice of the Supreme Court and High Courts to elect its own judges.

Under the Constitution, the President is to appoint the judge on the recommendation of the Chief Justice of India. The Constitution also mentions the qualifications required to be a Supreme Court and a judge of the High Court. However in a series of decisions starting from SP Gupta v. President of India in 1982 till the Judges Reference case in 1998 the Supreme Court has taken upon itself the power to appoint the judges making the sanction given by the President and the Executive a mere ministerial act. The procedure now; nowhere mentioned in the Constitution; is that a collegium of judges is to be formed and the Chief Justice, upon their recommendation sends the names of the suitable judges to the President. The President now sits as a puppet and is bound to approve of the Chief Justice’s choice unless there is some extraordinary reason.

This is by far the single most important act of activism by the Courts that is nowhere mandated by the Constitution but for the Article guaranteeing the independence of the judiciary (Article 94). No other democracy in the world seeks to put forth and approve of this view of the Court appointing its own judges

A few days ago the Chief Justice forwarded the names of 3 judges of various High Courts to be appointed as judges of the Supreme Court to the Prime Minister’s Office. The PMO upon noting that few senior judges had been superceeded by this recommendation has sent the list back to the Chief Justice. This is a bold move by the executive considering that by the decisions of the cases mentioned above, the executive is bound to follow the CJI’s recommendations. In fact, this is one of the first instances where the executive has put its foot down and decided not to succumb to the ridiculous will and mandate of the judiciary. The Constitution mandates that the executive and legislature aid the judiciary in the enforcement of its decisions and that not doing so would lead to a contempt of Court. The only known instance where the Court tried to make use of this power was when the Speaker of Manipur Ibobi Singh decided not to follow a Court order cancelling disqualification of certain MLA stating it was not in the jurisdiction of the COurt to do so. The Supreme Court had then initiated contempt proceedings which were later withdrawn. This instance then gives a chance for the Court again to debate on its jurisdiction and powers and rethink certain ridiculous decisions that it had made earlier.

In what was once reckoned to be the ‘least dangerous branch’ by Alexander Hamilton the Court in India is seen to transcend constitutional limitations to give itself great powers. Chandrachud J. had described such a phenomenon in In re Special Courts Bill in 1979 as the ‘great usurpation of power’ and cautioned the judiciary against it. Alas! I don’t think such a sentiment has echoed within the judiciary over the past two decades.