The Sole Route to an Independent Judiciary?

This essay critically analyses the judgment in the NJAC Case against the vehemently contested issue of judicial primacy in appointments. The author examines the NJAC Case’s treatment of the question of primacy of judges. The essay commences with a discussion of the Second Judges’ Case, and the judicial rationale behind construing ‘consultation’ under Article 124 of the Constitution as ‘concurrence’ of the Chief Justice of India in the matter of appointments. The author assesses both whether as a descriptive fact the judgment in the NJAC Case held judicial primacy to be part of the basic structure, as well as whether such reading was normatively justified. This essay also expresses reservations about the extent of the Court’s engagement with the concept of ‘primacy’, and its importance for the independence of the judiciary, and whether it is part of the basic structure of the Constitution.