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

45 Pages Posted: 23 Aug 2016 Last revised: 7 Aug 2017

Date Written: June 1, 2017

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.

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

Suggested Citation

Abeyratne, Rehan, Upholding Judicial Supremacy in India: The NJAC Judgment in Comparative Perspective (June 1, 2017). 49 George Washington International Law Review 569 (2017), Available at SSRN: https://ssrn.com/abstract=2827793

Rehan Abeyratne (Contact Author)

Chinese University of Hong Kong ( email )

6/F, Lee Shau Kee Building
Shatin, New Territories
Kowloon, Sha Tin
Hong Kong

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