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http://www.xaam.in/2015/10/constitution-is-supreme-law-of-land.html
via media between the US system of Judicial Supremacy and the English principle of Parliamentary Supremacy
by empowering the judiciary with the power of declaring a law as unconstitutional if it is perceived to be going
beyond the competence of the legislature according to the distribution of powers, as enshrined in the Constitution.
Thus, owing to a series of gross error of judgement committed by the executive in apex court appointments
beginning 1973 when Justice AN Ray superseded three of his seniors (Justices Hegde, Grover and Shelat),
followed by repeat bypassing of the senior-most Justice Khanna by a junior justice MU Beg in 1977, the apex
court bench understandably started flexing its muscles. This led to a (1993) 4 SCC 441 decision in the Supreme
Court Advocates-on-record vs Union of India by a nine-judge bench, overruling the earlier judgement in the SP
Gupta vs Union of India (1981) which had upheld the primacy of the executive in the appointment of judges in the
Supreme Court. Thus the meaning and interpretation of the word consultation of Article 124 (2) was enlarged to
include two words concurrence and consent. In other words consultation, concurrence and consent became
virtually synonymous pertaining to the appointment of judges in the apex court. The baton of appointment passed
from the executive to judiciary after a shelf life of 48 years1947 to 1995.
Here, a question can be asked: Has the quality of judgment improved with the change in the mode of appointment
of judgesfrom the executives privilege to the collegiums prerogative to select judges? Indeed, a sensitive
subject with no categorical answer as the law may be on the right side of the change-making decision. But
morality-cum-ethics and law may not necessarily always be on the same page. Why? Because judges are
appointing judges.
What happens elsewhere? Although it may not be a fair comparison to make, owing to the uniqueness of India, yet
one sees that the US President can appoint any person as a judge of the Supreme Court of the United States.
Also, there is no bar to a non-lawyer being appointed. Felix Frankfurter, a law professor at Harvard, after
becoming a Supreme Court judge, gave fascinating display of his ability to give verdict based on his deep
knowledge of law. In the UK, High Court judges are appointed by the Crown on the recommendation of the Lord
Chancellor. Thus, judges do not appoint judges in Washington and London, the two democracies from where our
Constitution has borrowed extensively. However, the story in India is different. At least as on date.
The author is an advocate, Supreme Court