Battles to Control the Constitution

Referring to the days of the Emergency in the 1970s, Appointment of Judges to the Supreme Court of India: Transparency, Accountability, and Independence tells us that conflicts over judicial appointments have been proxy for larger battles to control the Constitution.¹ This is true, and is still very much the case.

The latest skirmish in the half-century-long war over control of judicial appointments² took place three years ago. In one of the early pieces of National Democratic Alliance (NDA) legislation, Parliament enacted the 99th constitutional amendment in 2014, establishing a National Judicial Appointments Commission (NJAC) for the appointment of Supreme Court and high court judges. This was meant to replace the 25-year-old system of appointments through a collegium of Supreme Court judges based on the rule of “judicial primacy.” The collegium system was established by the judiciary in 1993 through judicial interpretation of the Constitution. The essence of the NJAC idea was to dilute the role of the apex court judges and enhance the power of the executive in the appointment of Supreme Court and high court judges, as well as on transfers of the latter.³ In October 2015, the Supreme Court struck down the NJAC constitutional amendment and the NJAC Act as unconstitutional, and restored the collegium system (NJAC judgment).⁴