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Appointment of Judges to the Supreme Court of IndiaTransparency, Accountability, and Independence$
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Arghya Sengupta and Ritwika Sharma

Print publication date: 2018

Print ISBN-13: 9780199485079

Published to Oxford Scholarship Online: August 2019

DOI: 10.1093/oso/9780199485079.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2022. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use.date: 04 July 2022

Eight Fatal Flaws

Eight Fatal Flaws

The Failings of the National Judicial Appointments Commission

(p.122) 10 Eight Fatal Flaws
Appointment of Judges to the Supreme Court of India

Arvind Datar

Oxford University Press

The author launches a scathing indictment of the National Judicial Appointments Commission Act, 2014 (NJAC Act), and presents what he calls the ‘fatal flaws’ in the legislation. The essay argues that the judgment in the NJAC Case is a resounding invalidation of a flawed enactment that was the NJAC Act. The author calls out the NJAC Act for its faulty drafting, and how it was open to challenge on eight specific grounds. He believes that the NJAC Act was not the fruit of a particularly thoughtful exercise in drafting of laws, a view which was also accepted by the Court. The presence of an even number of members on the NJAC, absence of qualifications for eminent persons, the susceptibility of the appointments process to be amended by Parliamentary law, and the possibility of misuse of the veto power were some of the grounds which indicated that the NJAC was doomed to fail.

Keywords:   National Judicial Appointments Commission, NJAC Act, fatal flaws, faulty drafting, eminent persons, appointments process, veto power, judicial independence

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