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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, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 01 December 2021

The Sole Route to an Independent Judiciary?

The Sole Route to an Independent Judiciary?

The Primacy of Judges in Appointment

(p.135) 11 The Sole Route to an Independent Judiciary?
Appointment of Judges to the Supreme Court of India

Gautam Bhatia

Oxford University Press

This essay critically analyses the judgment in the NJAC Case against the vehemently contested issue of judicial primacy in appointments. The author examines the NJAC Case’s treatment of the question of primacy of judges. The essay commences with a discussion of the Second Judges’ Case, and the judicial rationale behind construing ‘consultation’ under Article 124 of the Constitution as ‘concurrence’ of the Chief Justice of India in the matter of appointments. The author assesses both whether as a descriptive fact the judgment in the NJAC Case held judicial primacy to be part of the basic structure, as well as whether such reading was normatively justified. This essay also expresses reservations about the extent of the Court’s engagement with the concept of ‘primacy’, and its importance for the independence of the judiciary, and whether it is part of the basic structure of the Constitution.

Keywords:   judicial primacy, NJAC Case, Second Judges’ Case, Article 124, Constitution, independence of the judiciary, basic structure, collegium executive, judiciary

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