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Judicial Primacy and the Basic Structure
This article is a legal analysis of the Supreme Court judgment in the appointment of judges case. It argues that a majority of the judges did not hold judicial primacy to be part of the basic structure, as has been commonly misunderstood. Further, their application of their understanding of judicial primacy to strike down the presence of the Union Law Minister and eminent persons on the National Judicial Appointments Commission is flawed. Consequently, the judgment has no precedential value were Parliament to attempt fresh reform to bring in transparency in judicial appointments.
The Supreme Court of India in Supreme Court Advocates-on-Record Association and others vs Union of India and others (hereinafter, “the NJAC case”) struck down the Constitution (99th Amendment) Act, 2014 (hereinafter “99th Amendment”) and the National Judicial Appointments Commission Act, 2014 (NJAC Act) as unconstitutional. These two enactments had collectively established the National Judicial Appointments Commission (NJAC). The commission was to have a determinative role in the appointment of judges to the Supreme Court and High Courts. Its establishment by Parliament was in response to the criticisms of the previous collegium method of appointments, by which senior justices of the Supreme Court had the last word on who occupied judicial office. The perception of nepotism, opacity and judicial hegemony in appointments was sought to be undone by a bipartisan NJAC.
However, it was not to be. The Constitution bench of the Supreme Court, by a majority of 4:1 (Justices Khehar, Lokur, Goel and Joseph in the majority; Justice Chelameswar dissenting), found the NJAC to be violative of the basic structure doctrine and hence unconstitutional.
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