—Rehan Abeyratne, Jindal Global Law School
Last week, the Supreme Court of India issued a landmark judgment holding the National Judicial Appointments Commission (NJAC) unconstitutional. As Chintan Chandrachud has explained in detail on I-CONnect, the Court held that the NJAC violated the Indian Constitution’s “basic structure” by restricting the independence of the judiciary. The Court has already been criticized for abandoning its usual adjudicatory processes, for its shoddy constitutional reasoning, and for its distrust of the Indian public who, through their elected representatives, supported the passage of the NJAC Bill (and accompanying constitutional amendment) into law.
While I substantially agree with all these criticisms, I wish to make a more radical claim: the NJAC judgment is not really concerned with judicial independence. First, the Supreme Court does not explain why having judges control judicial appointments is a necessary component of judicial independence. Second, and more fundamentally, the Court assumes that the method of judicial appointment affects the judiciary’s independence. This assumption rests on a narrow – and ultimately flawed – definition of judicial independence.
In the NJAC case, the Supreme Court held that judicial primacy in selecting judges is an integral part of judicial independence and therefore falls within the Constitution’s unamendable “basic structure”. As a matter of constitutional interpretation, this is a dubious claim at best. As an empirical matter, the notion that an independent judiciary requires judges to have the final say on appointments simply does not withstand scrutiny. In other major democracies, political actors control judicial selection with no apparent detriment to judicial independence. For instance, in the United States, federal judges are appointed by the President with the advice and consent of the Senate. In Canada, the Governor-General appoints Supreme Court justices with the advice of the Queen’s Privy Council, usually represented by the Prime Minister. South Africa has a Judicial Service Commission that recommends nominees for judicial office to the President, who makes the final determination after consulting with the Chief Justice and the major political parties. In the U.K., the President and Deputy President of the Supreme Court sit on the appointments commission for Supreme Court justices. However, the Lord Chancellor, a member of the U.K. Cabinet, must approve any candidate the commission puts forth.
These countries clearly do not consider judicial primacy to be beneficial, much less essential, to judicial independence. Rather, they all strike a balance in their selection processes among the executive, legislative and, in some cases, the judicial branches. The broad similarity across jurisdictions reveals an important insight: judicial independence is more likely to emerge if judges are selected through a consultative process involving different, and often competing, institutional interests. By leaving judicial selection to the judges themselves, the Indian Supreme Court has furthered judicial supremacy, not judicial independence.
A second and more serious problem with the NJAC judgment is definitional. Any analysis of judicial independence must tackle the following question: independent of whom? In a recent article, I advanced a decisional definition of judicial independence: an independent judiciary is one that produces judgments that do not consistently favor particular actors or interests. Put otherwise, if certain interests – notably dominant political, business, or religious groups – could consistently secure judgments in their favor, the judiciary would not be independent. This definition has an important rule of law dimension. It seeks to ensure the equal protection and consistent application of the laws without undue influence or bias affecting how cases are decided.
While the Supreme Court does not define “independence of the judiciary”, it appears to endorse an institutional definition. On this view, judicial independence is achieved by creating institutional safeguards to limit outside (namely, political) influence. The problem with this definition is that it fails to account for external pressure and bias after judges have been selected. Thus, even with the most robust safeguards at the stage of judicial selection, there is no guarantee that judges will exercise impartial judgment when deciding cases, particularly those on politically and socially charged issues.
The upshot of the NJAC judgment is that India will return to the “collegium” system. This system, created over a series of cases in the 1980s and 90s, vests final appointment authority for Supreme Court and High Court justices with a select group of judges. In theory, this achieves the institutional goal of removing political actors from the judicial selection process. But it is unlikely, in practice, to have any significant effect on the judiciary’s ability to produce high-quality, bias-free judgments. Indeed, studies of African and Latin American courts have found that greater institutional autonomy does not, on its own, create more independent outcomes or even perceptions of a more independent judiciary.
Thus, we need to move beyond this narrow, institutional formulation of judicial independence to look at how judges actually decide cases. It makes little difference whether the NJAC or the collegium selects judges if these judges lack the temperament to issue impartial and legally sound decisions. On November 3, the Supreme Court will begin hearings on how to improve the collegium system. If the goal is to improve judicial independence, the focus should be on creating a well-qualified pool of judges who will produce independent judgments, regardless of the selection procedure.
Suggested Citation: Rehan Abeyratne, Judicial Supremacy, not Independence, Upheld in NJAC Judgment, Int’l J. Const. L. Blog, Oct. 23, 2015, at: http://www.iconnectblog.com/2015/10/judicial-supremacy-not-independence-upheld-in-njac-judgment
 See generally, Jeffrey Jowell et al., Judicial Appointments: Balancing Independence, Accountability and Legitimacy (2010) (noting that the U.K. adopted a judicial appointments commission in part because of a growing international consensus that such commissions promote greater judicial independence.).
 See Rehan Abeyratne, Rethinking Judicial Independence in India and Sri Lanka, 10 Asian J. Comp. L. 99 (2015). See also, Maria Popova, Politicized Justice in Emerging Democracies (2012).
 See D.S. Clark, Judicial Protection in Latin America 2 Hastings Const. L. Q. 405; Jennifer Widner & Daniel Scher, Building Judicial Independence in Semi-Democracies: Uganda and Zimbabwe, in Rule by Law: The Politics of Courts in Authoritarian Regimes (Tom Ginsburg & Tamir Moustafa eds., 2008).