OVER 76 YEARS, THE CRITICAL MARKER of our constitutional performance has been to what extent the Indian judiciary has capably functioned as a counter-majoritarian institution - that, in turn, determined, by how insulatingly our judiciary has been autonomous. The grand story of our constitutional democracy cannot be told without foregrounding it in the less glamorous historical tale of judicial appointments.
Ever since the establishment of the Indian Supreme Court, coarse conflict between the executive and the judiciary over the issue of appointments has carried the undertone of differing visions of the separation of powers, and of judicial independence. In the Constituent Assembly Debates, it was a fierce debate, with those such as Dr B.R. Ambedkar forwarding a nuanced view on appointments that vouched for judicial independence without necessarily pushing on judicial primacy.
Around that same time, in the summer of 1948, shortly after the second draft of the Constitution was finalised and circulated among High Court judges, in an unprecedented gathering in Delhi of “close to a hundred judges”, a conference memorandum was adopted that pushed for judicial primacy in appointments, making the “consultation” of the Chief Justice of India binding over the executive. However, this brief lobbying attempt could not be successful at that time - the final Constitution draft did not make the CJI’s consultation on appointments binding.
