Assessing the NJAC Judgement
| Author | Suhrith Parthasarathy |
| DOI | 10.1177/2277401720150103 |
| Published date | 01 August 2015 |
| Date | 01 August 2015 |
| Subject Matter | Article |
ASSESSING THE NJAC JUDGMENT
Suhrith Parthasarathy*
On 16th October 2015, a five-judge bench of the Supreme Court of
India in Supreme Court Advocates on Record Association v Union
of India declared the 99th amendment to the Indian Constit ution
and the National Judicial Appoint ments Commission Act 2014, as
unconstitutional. In the article, the a uthor argues that in doing so,
the Court ensured that India would continue to deploy a method
of appointing judges to the country’s higher judiciary, which
maintains no fidelity either to the bare text of the Constitution,
or to the principles of separation of powers that are the bedrock
of any legitimate constitutional democracy.
I. Background
The Indian Constituent Assembly, as the historian Granville Austin
has pointed out, possibly spent more time deliberating how to establish an
independent judiciary than over any other point of contention.1 This was
because the framers believed that it was only a judiciary that was properly
insulated from the legislative and executive wings of government that could
guarantee to the Ind ian people the social revolution that was envisioned
in the Constitution. But while judges had to be sequestered from political
influence, at the same time it was also found imperative that there were
sufficient checks and balances to ensure that the judiciary was accountable
to the Indian people.
To this end, to protect the judiciary from the other wings of government,
the framers introduced several key provisions in the Constitution. For
example, the Constitution provides that the salaries and allowances of the
judges are to be charged only from the Consolidated Fund of the State;
2
that each of the high courts would have the power to punish for contempt
of cour t;3 and, most notably, that judges of the Supreme Court and the high
* Advocate, Madras High Court , Chennai.
1 Granville Austin, The Indian Cons titution: C ornerstone of a Natio n (OUP 1966).
2 Constitution of India 1950, art 112(3)(d).
3 Constitution of India 1950, arts 129 and 215.
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