When Courts Appoint Themselves: The Paradox Of Judicial Self-Selection And Its Implications For Constitutional Democracy In Post- Colonial States
- IJLLR Journal
- Feb 4
- 1 min read
Saurabh Singh, Faculty of Law, University of Lucknow
ABSTRACT
Something strange happened in India during the 1990s. The Supreme Court, through a series of judgments, essentially rewrote the Constitution to give itself the power to appoint judges. No amendment. No referendum. Just interpretation, creative, controversial, unprecedented interpretation that scholars have debated ever since. This paper grapples with a question that has bothered me since my legal studies: Can a court legitimately claim the authority to determine its own membership? And if it does, as India’s did, what happens to constitutional democracy? I approach this question through what I call the “self-selection paradox”: the curious situation where an institution designed to check power accumulates power precisely by invoking its checking function. The Indian experience offers the world’s most dramatic example of this phenomenon, but echoes appear elsewhere, in Pakistan’s judicial activism, in South Africa’s Constitutional Court, in the Egyptian judiciary’s brief assertion of independence before its suppression. My argument proceeds in three movements. First, I establish that judicial self-selection represents a genuine break from conventional constitutional theory, not merely an extreme point on a spectrum. Second, I demonstrate through granular analysis of the Indian experience, including very recent controversies, that self-selection generates predictable pathologies: opacity, homogeneity, accountability deficits, and eventually, legitimacy erosion. Third, I suggest that post-colonial states face distinctive pressures that make both executive-dominated and judiciary-dominated appointment models problematic, requiring novel institutional innovations.
Keywords: judicial self-selection; collegium system; post-colonial constitutionalism; separation of powers; India Supreme Court; judicial appointments; constitutional design; democratic legitimacy; comparative law; institutional theory.
