JUDICIAL APPOINTMENTS IN INDIA AND PAKISTAN: THE NEED FOR RESPONSIVE JUDICIAL REVIEW AND INSTITUTIONAL DIALOGUE

Abstract

Judicial Appointments were and continue to remain a hotly contested issue even after four landmark pronouncements by the Supreme Court. In the latest judgement on judicial appointments in 2015, the Supreme Court of India (‘SCI’), in SCORA v. Union of India declared the National Judicial Appointment Commission, brought in by the 99th Amendment, as unconstitutional for violating the basic structure. The judgement has been highly criticised by scholars for ignoring the principles of separation of powers and ignoring “parliamentary supremacy” by striking down a constitutional amendment in toto. Interestingly, the Supreme Court of Pakistan (‘SCP’) was faced with a similar question in Nadeem Ahmed regarding the constitutional validity of the 18th Amendment, which, inter alia, introduced a Judicial Appointments Commission. The SCP acted in stark contrast to the SCI by engaging in institutional dialogue as opposed to striking down the Amendment. This paper attempts to provide multiple suggestions and ways as to how the SCI could have decided the case differently by drawing on jurisprudence from Pakistan. The article attempts to compare and contrast the approach adopted by the SCI with that of the SCP and argues for engaging in institutional dialogue on questions like judicial appointments, which do not form the “democratic minimum core” in a democracy.