The Primacy of Judges

8 Pages Posted: 2 Jun 2016

Date Written: March 8, 2016

Abstract

This essay examines the concept of the "primacy of judges" in judicial appointments, as understood in Supreme Court Advocates-on-Record Association v Union of India ["the NJAC Judgment"]. The NJAC judgment struck down the 99th Constitutional Amendment, which sought to replace the "Collegium" system of judicial appointments with a National Judicial Appointments Commission ["NJAC"], on the ground that it violated the basic constitutional feature of judicial independence. This essay makes three claims: first, that the constitutionality of the 99th Constitutional Amendment could not have been satisfactorily adjudicated by the Supreme Court without first determining whether the Second Judges Case had held judicial primacy to be part of the basic structure, or only an "interpretive gloss" on Article 124 of the Constitution; secondly, that all five separate opinions in the NJAC Judgment failed to do so; and thirdly, that contrary to the argument advanced by Arghya Sengupta, a majority of three judges in the NJAC judgment held that judicial primacy is part of the basic structure. Consequently, any future attempt at changing the manner of judicial appointments will have to stay true to the principle of judicial primacy, even though its foundations in the NJAC judgment are arguably shaky.

Suggested Citation

Bhatia, Gautam, The Primacy of Judges (March 8, 2016). Available at SSRN: https://ssrn.com/abstract=2744838 or http://dx.doi.org/10.2139/ssrn.2744838

Gautam Bhatia (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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