Judicial Independence is not Judicial Primacy: Reassessing the NJAC Verdict

The Supreme Court’s 2015 decision striking down the National Judicial Appointments Commission (NJAC) Act has often been heralded as a reaffirmation of judicial independence. However, the judgment rests on a fragile foundation: the assumption that judicial independence is best secured through exclusive judicial control over appointments. This interpretation not only misconstrues the principle of separation of powers but also reflects a deeper institutional mistrust of democratic processes. It is imperative to revisit the jurisprudential logic underlying this conclusion and to interrogate whether judicial primacy in appointments is truly coextensive with judicial independence.

The NJAC was established through the Ninety-Ninth Constitutional Amendment and the National Judicial Appointments Commission Act, 2014. It proposed a multi-member body comprising the Chief Justice of India, two senior-most judges of the Supreme Court, the Union Law Minister, and two eminent persons. This composition aimed to institutionalise transparency and shared responsibility in judicial appointments. However, in Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1, a five-judge bench of the Supreme Court, by a 4:1 majority, held that the NJAC violated the basic structure of the Constitution.

The Court reasoned that the presence of the executive and eminent persons in the appointments process compromised the independence of the judiciary, a core feature of the Constitution’s basic structure. According to the majority, this infringement arose because the NJAC diluted the primacy of the judiciary in the selection process. The judgment effectively revived the Collegium system, which vests the power of appointments solely in the hands of senior judges.

However, this elevation of judicial primacy to the status of a constitutional imperative is not borne out by the text or original intent of the Constitution. Article 124 of the Constitution originally required the President to appoint judges in “consultation” with the Chief Justice of India and such other judges as deemed necessary. The plain meaning of this provision never contemplated that the Chief Justice’s recommendation would be binding. It was only in the Second Judges Case, Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441, that the Supreme Court reinterpreted “consultation” to mean “concurrence,” thereby granting itself primacy in judicial appointments. This interpretive shift was not grounded in any explicit constitutional language or legislative mandate.

Dr B R Ambedkar, during the Constituent Assembly Debates, had cautioned against granting veto power to the Chief Justice. He noted that while the Chief Justice may be impartial, he remains a fallible human being. Ambedkar explicitly rejected the proposition that either the Executive or the Judiciary should have unilateral control over appointments. His vision was of a balanced framework of shared responsibility, not unilateral judicial supremacy.

The NJAC sought to reintroduce that equilibrium. It did not eliminate the judiciary’s role; rather, it incorporated broader institutional perspectives. The Supreme Court’s decision to strike it down reflects a fundamental distrust of other constitutional actors. The concern expressed by the majority, that non-judicial members lacked legal training or were susceptible to political pressure, presupposes that only the judiciary can be entrusted with constitutional fidelity.

Justice J Chelameswar’s dissenting opinion in the NJAC case is critical in this context. He rightly observed that independence is a function of both institutional autonomy and the individual integrity of those who constitute the institution. He further warned that insulation from scrutiny does not necessarily translate into independence. On the contrary, he argued that the Collegium had become opaque and unaccountable, characterised by a lack of transparency and ad hoc decision-making.

The record of the Collegium system reinforces these concerns. There is no codified procedure governing the selection or rejection of names, no obligation to record reasons, and no mechanism for accountability. The argument that judicial primacy safeguards independence assumes that internal consensus among judges is a sufficient proxy for merit and transparency. This assumption is not supported by empirical evidence or normative logic.

The judgment also raises serious concerns about the balance between constitutional supremacy and democratic will. The NJAC amendment had received unanimous approval in both Houses of Parliament and was ratified by 16 state legislatures, as per the constitutional requirement. For a constitutional amendment with such significant democratic mandate to be struck down by a narrow judicial majority reflects an imbalance in the constitutional architecture. While the judiciary is the ultimate interpreter of the Constitution, it is not immune from the discipline of constitutional structure and representative legitimacy.

The Indian Constitution does not prescribe a strict separation of powers. The functions and powers of the three branches are delineated but not compartmentalised. Judicial review, legislative oversight, and executive accountability are all part of a dynamic system of checks and balances. The doctrine of separation of powers cannot be interpreted to exclude one branch from participating in constitutionally relevant functions, especially when that participation is designed to enhance institutional accountability.

Montesquieu’s articulation of the separation of powers warns against the concentration of all powers in a single entity. That warning applies not just to the Executive or Legislature but also to the Judiciary. The claim that judicial independence can only be achieved through complete judicial control is logically flawed and constitutionally suspect.

In conclusion, judicial independence is not judicial primacy. Independence is a structural and ethical principle that requires institutional safeguards, not monopolies. By equating primacy with independence, the NJAC judgment constitutionalised a flawed system and foreclosed meaningful reform. It is time to recognise that transparency, accountability, and shared constitutional responsibility are not threats to judicial independence but its essential guarantees.