Political Patronage and Judicial Appointments in India

• Author: Khagesh Gautam
• Position: Jindal Global Law School, O.P. Jindal Global University, Sonipat, India
• Pages: 653-723

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2017 e Institute for Migrant Rights Press

e author would like to thank Manan Shishodia (B.A.LL.B. 2012-2017) and V Balaji

(B.A.LL.B. 2012-2017) for providing excellent research assistance.

POLITICAL PATRONAGE AND JUDICIAL

APPOINTMENTS IN INDIA

A COMMENT ON THE FOURTH JUDGES APPOINTMENTS

(NJAC) CASE

Khagesh Gautam

Jindal Global Law School, O.P. Jindal Global University, Sonipat,

India

E-mail: kgautam@jgu.edu.in

e issue of judicial appointments in the higher judiciary (i.e. the Supreme

Court of India and the State High Cour ts) has been in the news recently. e

new government, carrying forward the eorts of previous governments, intro-

duced the 99th Constitutional Amendment amending the Judges Appointment

Clause (article 124) of the Indian Constitution and introduced three new arti-

cles in the Indian Constitution providing for a National Judicial Appointments

Commission (NJAC) for appointing judges to the higher judiciary. Along with

this amendment, the National Judicial Appointments Commission Act, 2014

was enacted. us the previous system, also known as the Collegium System of

appointments, whereby the Indian President had to give primacy to the opinion

of the Chief Justice of India in matters of judicial appointments in higher judi-

ciary was replaced with the new NJAC system of appointments. is new consti-

tutional amendment and the NJAC Act were immediately challenged before the

Supreme Court of India as unconstitutional and void as violating the principle

of independence of judiciary, which is a part of the basic structure of the Indian

Constitution. In the Fourth Judges Appointment Case, decided on October 16,

2015, the Supreme Court of India by a majority of 4 judges to 1, declared the 99th

Amendment as violative of the basic structure. e majority of 4 judges also held

that in the absence of the 99th Amendment, the NJAC Act automatically became

unconstitutional and void. e lone dissenting judge did not express any opinion

on the constitutionality of the NJAC Act since the majority had already found it

IV Indonesian Journal of International & Comparative Law 653-723 (Octoer 2017)

654

Gautam

unconstitutional.

is article engages with the Patronage Rationale provided in the Fourth

Judges Appointments Case. e Patronage Rationale holds that any system of ju-

dicial appointments in India that envisages active participation of the executive

branch of the government would result in judicial appointments being made by

the politicians (who dominate the executive branch) to patronize whatever con-

stituents the politicians wish to patronize. Judicial appointments being made on

the basis of purely political considerations designed to further political interests

would seriously jeopardize the independence of the judiciary in India. Although

in the Fourth Judges Appointment Case ve opinions were delivered by the judg-

es spanning over 800 printed pages (including case notes) of the law reports, not

much time was spent expounding the Patronage Rationale. is article engages

with the Patronage Rationale and provides comparative and historical evidence

to support the same. is article argues that the Supreme Court correctly struck

down the 99th Amendment (and consequently the NJAC Act) as unconstitution-

al. Evidence from the draing era, other historical evidence as well as compar-

ative evidence very strongly suggests that under Indian conditions giving the

executive branch an active role to play in judicial appointments is bound to

hijack the process in order for it to be used to practice political patronage. e in-

dividual character of any one Minister or politician notwithstanding, any active

participation of the executive branch will eventually result in the system being

hijacked thus seriously jeopardizing the independence of Indian Judiciary and

that is something that cannot be aorded under Indian conditions.

655

Political Patronage and Judicial Approintments in India

Gautam

I. INTRODUCTION

e procedure for appointment of judges to the Supreme Court of In-

dia is provided for in Article 124 of the Constitution (known as “the

Judges Appointment Clause”).1 e Judges Appointment Clause pro-

vides that the judges of the Supreme Court are to be appointed by the

President upon consultation with the Chief Justice of India.2 In 1993,

in the Second Judges Appointments Case3 a nine-judge bench of the Su-

preme Court held that “no appointment of any judge to the Supreme

Court or any High Court can be made unless it is in conformity with

the opinion of the Chief Justice of India.”4 is was done primarily to

preserve the independence of judiciary.5 e Second Judges Appoint-

ments Case, hailed as “a dramatic event in the international history of

jurisprudence,”6 brought into existence the system of appointment of

1. I C. art. 124.

2. I C. art. 124, § 2 (“e judges of the Supreme Court of India are to be

appointed by the President of India aer consultation with, ‘. . . such judges of

the Supreme Court and of the High Courts in the States as the President may

deem necessary for the purpose . . . . .’”).

3. Supreme Court Advocate-on-Records Association v. Union of India (2nd

Judges Appointment C ase), (1993) 4 SCC 441 (India).

4. “[I]n Supreme Court Advocates-on-Record-Association v. Union of India . . .

Verma, J. was giving judgment on behalf of a majority of ve judges in a court

of nine holding inter alia that, under the Constitution of India, no appoint-

ment of any judge to the Supreme Court or any high court can be made unless

it is in conformity with the opinion of the Chief Justice of India.”

See Lord Cooke of orndon, Where Angels Fear to Tread, in S B

 I 97 (6th ed., 2004).

5. Id. at 105 (“On the other hand, there will be the advantage that overtly political

appointments or transfers are un likely.”); Arghya Sengupta, Judicial Indepen-

dence and the Appointment of Judges to the Higher Judiciary in India: A Con-

ceptual Enquiry, 5 I J. C L. 100, 104 (2011) (hereinaer

“Sengupta”) (“e need for an independent judiciar y provided the underpin-

ning for the initial system envisaged by the draers, and every reform institut-

ed or recommended thereaer by the Supreme Court, the Law Commission of

India or the government.”).

6. Id. at 98; Ajit Prakash Shah, Judges Appointment and Accountability, 2 L. W-

 (J S) 21, 27-28 (2012) (hereinaer “Ajit Prakash Shah”);