Political Patronage and Judicial Appointments in India: A Comment on the Fourth Judges Appointment (NJAC) CaseIndonesian Journal of International and Comparative Law (2017)
The issue of judicial appointments in the higher judiciary (i.e. the Supreme Court of India and the State High Courts) has been in the news recently. The new government, carrying forward the efforts of previous governments, introduced
the 99th Constitutional Amendment amending the Judges Appointment Clause (article 124) of the Indian Constitution and introduced three new articles in the Indian Constitution providing for a National Judicial Appointments
Commission (NJAC) for appointing judges to the higher judiciary. Along with this amendment, the National Judicial Appointments Commission Act, 2014 was enacted. Thus the previous system, also known as the Collegium System of
appointments, whereby the Indian President had to give primacy to the opinion of the Chief Justice of India in matters of judicial appointments in higher judiciary was replaced with the new NJAC system of appointments. This new constitutional amendment and the NJAC Act were immediately challenged before the Supreme Court of India as unconstitutional and void as violating the principle of independence of judiciary, which is a part of the basic structure of the Indian Constitution. In the Fourth Judges Appointment Case, decided on October 16, 2015, the Supreme Court of India by a majority of 4 judges to 1, declared the 99th Amendment as violative of the basic structure. The majority of 4 judges also held that in the absence of the 99th Amendment, the NJAC Act automatically became unconstitutional and void. The lone dissenting judge did not express any opinion on the constitutionality of the NJAC Act since the majority had already found it unconstitutional.
This article engages with the Patronage Rationale provided in the Fourth Judges Appointments Case. The Patronage Rationale holds that any system of judicial appointments in India that envisages active participation of the executive branch of the government would result in judicial appointments being made by the politicians (who dominate the executive branch) to patronize whatever constituents the politicians wish to patronize. Judicial appointments being made on the basis of purely political considerations designed to further political interests would seriously jeopardize the independence of the judiciary in India. Although in the Fourth Judges Appointment Case five opinions were delivered by the judges spanning over 800 printed pages (including case notes) of the law reports, not much time was spent expounding the Patronage Rationale. This article engages with the Patronage Rationale and provides comparative and historical evidence to support the same. This article argues that the Supreme Court correctly struck down the 99th Amendment (and consequently the NJAC Act) as unconstitutional. Evidence from the drafting era, other historical evidence as well as comparative evidence very strongly suggests that under Indian conditions giving the executive branch an active role to play in judicial appointments is bound to hijack the process in order for it to be used to practice political patronage. The individual character of any one Minister or politician notwithstanding, any active participation of the executive branch will eventually result in the system being hijacked thus seriously jeopardizing the independence of Indian Judiciary and that is something that cannot be afforded under Indian conditions.
Publication DateWinter December 17, 2017
Citation InformationKhagesh Gautam, Political Patronage and Judicial Appointments in India, 4 Indon. J. Int'l & Comp. L. 653 (2017)