The Supreme Court has held the constitutional amendment replacing the present collegium system for appointment of the judges of the higher judiciary
By the National Judicial Appointment Commission unconstitutional. In its opinion the presence of the Law Minister and two eminent persons appointed on the recommendation of a committee of which the Prime Minister and the Leader of Opposition are members along with the provision that two members out of six can veto the appointment of a candidate would seriously undermine the independence of the judiciary, which is a basic feature of the constitution and cannot be violated. Like any judgment of the court, there would be different opinions on it, but the battle cry that the judgment undermines the supremacy of Parliament is the same which was first raised by Indira government in 1967 and which was consistently opposed by the opposition parties as being dangerous to democracy...Ironically , the present amendment was unanimously passed by both houses of Parliament and a large number of State Legislatures. All the political parties were on the same page not to ensure just and fair appointment of judges but to bring the judiciary under their thumb since almost all of them have their cupboards full of skeletons and share a common fear of an independent judiciary. It is incredible that the politicians ,who never make a single appointment without extraneous consideration where they have the power ,are shocked by a few bad appointments made by the Collegium. However, that is no justification for allowing the Collegium to appoint judges on extraneous consideration and a foolproof arrangement is unquestionably the crying need of the nation, but without throwing the baby with the bath tub in the bargain.

Indira Gandhi had raised the battle cry against the judiciary in the name of Parliament's supremacy when the apex court held that Parliament could not amend the fundamental rights to its detriment (Golaknath ,1967).
She asserted that Parliament had unfettered power to amend any part of the constitution .The issue came up before the apex court again in 1973 (Keshavanand Bharti) The court in a historic judgment of great import held that Parliament could amend any part of the constitution including the fundamental rights but could not violate the basic features of the constitution. What the basic features were had to be decided by the apex court from time to time in course of the hearing of a case if the issue were raised. Had the court not imposed this limitation on the amending power of Parliament , Parliament would have been free to introduce one party rule, take away the right to life and personal liberty, end equality before the law , put an end to the rule of law , place the judiciary under the .Executive , make Indira Gandhi Prime Minister for life , reduce the minorities to the status of second class citizens and make India a theocratic .State .If the supremacy of Parliament is accepted and the limitation that it cannot violate the basic features of the constitution is dispensed with by the apex court by reviewing its 1973 judgment , there would be no bar against the BJP government making India a Hindu Rashtra and reducing the minorities to the status of second class citizens on the line of Pakistan, which is an Islamic State.
In a determined effort to make the judiciary subservient to her and making the judiciary 'committed 'to her, Indira Gandhi superseded three senior most judges of the apex court , who had rejected her claim of Parliament's supremacy in Keshavanand case and appointed the fourth person (Justice A.N .Ray) as the Chief Justice of India. Justice Ray constituted a bench to review the judgment in Keshavanand (November ,1975) with a view to reverse it , but disbanded the bench when he discovered that the other judges on the bench were not favourably inclined. However, she had succeeded in terrorizing the Supreme .Court, which held that during the emergency, even if a person was killed by a policeman for personal reason, no legal action could be taken against him .It was also held that a person could be imprisoned or tortured by the State but he had no legal remedy against it .Thus, a subservient judiciary reduces every person to a state of helplessness against the attacks by politicians in power. To accept the so called supremacy of Parliament and permit political interference in the appointment of judges would be suicidal for all including the non -BJP political parties which had joined hands with Modi to undermine the independence of the judiciary through this amendment.

The power of judicial review is not unique to Indian.
The Supreme Court of the USA exercises far greater power in this respect than our Supreme Court even though no Article in the USA’s constitution vests this power in it .There is seldom a confrontation between the Executive or Legislature on one hand and the judiciary on the other. Comparison with the . British Parliament is irrelevant because the .British Parliament is not a creature of a written constitution as ours is .And finally ,the arrangement which is in the best interest of the rule of law, democracy and the security and freedoms of the people of a country is the best for it .For us , the independence of the judiciary is the only anti-dote against the onslaught of the self-serving political class ,which has been camouflaging its sinister design of bridling the judiciary with the slogan of the supremacy of Parliament .We must be wary of such slogans and jealously guard judiciary's independence in our own interest .
Prabhakar Sinha

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