Judicialisation of Judicial Appointments? A Response from the United Kingdom
A Sengupta and R Sharma (eds), Appointment of Judges to the Supreme Court of India (OUP 2018)
10 Pages Posted: 29 Dec 2019
Date Written: April 18, 2018
The United Kingdom's Constitutional Reform Act 2005 (CRA) played an important role in a constitutional case in a different part of the Commonwealth. In the Fourth Judges Case, the Indian Supreme Court cited the CRA (as well as developments in Australia and New Zealand) in support of the proposition that the Constitution (Ninety-ninth Amendment) Act, 2014 violated the basic structure of the Indian Constitution. Justice Khehar argued that recent trends in the Commonwealth pointed towards the ‘judicialisation’ of the judicial appointments processes. This increased role of the higher judiciary in appointments processes corresponded with the diminishment of the role of the executive. Changes would, by and large, be in the direction of reducing executive participation from existing default positions.
This chapter considers whether the Indian Supreme Court was correct in suggesting that the CRA demonstrates the trend towards judicialisation of appointments processes. It concludes that the Court’s analysis was reductionist at best, and plainly incorrect at worst. The Court either misread a trend towards balanced appointments processes as one favouring judge-centric appointments processes, or correctly identified a trend of ‘judicialisation’ whilst ignoring other, equally significant trends.
Keywords: judicial appointments, Indian Constitution, British constitution, Constitutional Reform Act 2005, basic structure doctrine
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