Judicial appointments in India : from pillar to post

Abstract

After more than two decades of relative harmony between the executive and the judiciary, judicial appointments first became an openly contentious issue in India in 1973. In this article, we trace this history, beginning with an examination of the supersession crisis itself and continuing through an analysis of the judicial decisions in the three 'Judges' Cases' of 1982, 1993, and 1998. We then examine in detail the proposed National Judicial Appointments Commission of 2014, and the Supreme Court's negative response to it. We draw out from this history four broad design principles which ought to be borne in mind when designing a system of judicial appointment under a democratic constitution. We conclude that the level of democratic control of appointments should be proportionate to the extent of judicial power; that no judiciary can be so trusted as to be entirely self-perpetuating; that the political executive must remain an integral part of the appointments process; and that a balance must be struck between the need for transparency and certain advantages that accrue from a degree of confidentiality. These principles are informed not only by the fraught history of judicial appointments in India but also by debates over judicial appointments in other jurisdictions, particularly South Africa, where controversies about judicial appointments have become increasingly frequent.