Protecting judicial independence through appointments processes: learning from the Indian and South African experiences

Abstract

In October 2015, by majority judgement, the Indian Supreme Court found the Constitutional (99th Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 to be unconstitutional. In a judgement that runs to over a thousand pages, certain judges reasoned that judicial independence was part of the basic structure of the Constitution and, as such, not susceptible to abrogation by Parliament. A majority of the judges held that the commission-based appointments process in the legislation would impinge on judicial independence. Thus, the legislation had to be struck down. Drawing on developments in South Africa, this article argues that, whilst aspects of the Indian Supreme Court’s judgement were motivated by legitimate concerns about executive dominance over judicial appointments, the idea that judicial primacy over the process is the only means through which independence can be assured is flawed. The judgement was a missed opportunity to interrogate the meaning of judicial independence and to consider how a more transparent process could act to protect independence whilst also enhancing judicial accountability, legitimacy and diversity.