Upholding Judicial Supremacy in India: The NJAC Judgment in Comparative Perspective

Rehan Abeyratne 

Jindal Global Law School

August 22, 2016

George Washington International Law Review (Forthcoming) 

Abstract:    
On October 16, 2015, the Supreme Court of India issued a landmark judgment holding the National Judicial Appointments Commission (NJAC) unconstitutional. This Article argues that the judgment is flawed in two ways. First, it held that the Indian Constitution requires sitting judges to have the final word on judicial appointments. Neither the constitutional text nor the Constituent Assembly Debates provides any support for this conclusion. Second, the judgment does not explain how this sort of judicial primacy promotes or secures judicial independence. A comparative analysis shows that no other major constitutional democracy gives judges the final word on judicial appointments. So why is India an outlier? I argue that peculiar political and historical circumstances required the Indian judiciary to assume an outsized role. The NJAC Judgment is, therefore, best understood in institutional terms: it represents the judiciary’s reluctance to cede its supremacy to the political branches of government.

Number of Pages in PDF File: 40

Keywords: Judicial Appointments, Judicial Independence, Indian Constitution, Comparative Constitutional Law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2827793