Conflicting Claims: Judicial Appointment And The Paradigm Of Judicial "Independence"

Abstract

This Article seeks to throw light on the contemporary debates on “judicial independence”, specifically in the context of the pressing problem of appointments to the higher judiciary in India. Noting the naturalization of the phrase in popular discourse, it cautions against the same, drawing attention to the fact that far from exhibiting any sort of universal consensus, judicial independence remains one of the most contested concepts across the globe. It further delineates and dichotomizes the varied disputes as regards the issue; whether judicial independence is a pre or post-appointment guarantee; whether absolute judicial independence can be considered a democratic goal or is it inherently undemocratic, and whether accountability and independence can co-exist harmoniously or are antithetical to each other. In tracing the history of the system of appointments in India through the course of the three Judges’ Cases, it attempts to define “independence” with regard to international and domestic standards and interpretations. It argues that the term should not be pedestalized or serve as a means of insulating the judiciary from the representative system of checks-and-balances, while simultaneously also acknowledging the need for an ideologically uncompromised judiciary to protect the democratic values against political majoritarianism. Through a critical analysis of the Constitution (121st Amendment) Bill, 2014, and the National Judicial Appointments Commission Bill, 2014, it highlights the urgent need for relocation of the dialogue from its popular understanding as a tussle for supremacy between the judiciary and the executive, to the sphere of larger public interest, positioning it as the single largest stakeholder.