Upholding judicial supremacy in India : the NJAC judgment in comparative perspective

This Article argues that the NJAC Judgment is flawed in two distinct ways. First, as a matter of constitutional law, the judgment does not make a persuasive case as to why the Constitution requires judicial primacy in appointments. Neither the constitutional text nor the Constituent Assembly debates provide any support for this position. Moreover, even if the Constitution requires judicial primacy in appointments, the judgment does not explain how judicial primacy forms part of the unamendable “basic structure.” Second, the judgment does not explain why judicial primacy promotes or secures judicial independence. Indeed, as a comparative analysis will show, no other major constitutional democracy gives sitting judges the final word on judicial appointments. India is unique in this regard largely due to historical circumstances that required the judiciary to assume an outsized role.9 The NJAC Judgment is, therefore, best understood in institutional terms: it represents the Indian judiciary’s reluctance to cede its supremacy to the executive and legislative branches.