Appointment of Judges to the Supreme Court of India

2018 ◽  
Keyword(s):  
Supreme Court ◽  
South Asian ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Basic Structure ◽  
Judicial Appointments ◽  
The United Kingdom ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
History Of

In Supreme Court Advocates-on-Record Association v. Union of India [(2016) 5 SCC 1], a five-judge bench of the Supreme Court struck down the 99th Amendment to the Constitution and the National Judicial Appointments Commission (NJAC) Act, 2014, which replaced the existing collegium system with the NJAC, a new bipartisan model for appointing judges. This edited volume uses the judgment in the NJAC Case as a springboard to address the politics, doctrine, and developments pertaining to judicial appointments in India. It critically examines fundamental constitutional concepts such as rule of law, separation of powers, basic structure, and judicial independence which formed the basis of the judgment. It provides a rich and detailed history of post-Independence appointment of judges to locate the NJAC Case in its proper constitutional context. It also analyses reforms to judicial appointments in key South Asian and common law jurisdictions to understand what appointments in India might look like in the future. The volume has 21 essays across three parts—Part I provides an analysis of judicial appointments in India from the time prior to Independence to the present day, Part II analyses constitutional principles and their application in the NJAC Case, and Part III is a comparative enquiry into appointments processes in the United Kingdom, South Africa, Canada, Pakistan, Sri Lanka, and Nepal.

Rule of Law in Practice

2018 ◽  
pp. 63-104
Author(s):  
Harish Narasappa
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Basic Structure ◽  
Critical Examination ◽  
The Rule Of Law ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Rule Of Life ◽  
Political Understanding

In the first part, the interpretation and application of the rule of law by Indian courts, primarily the constitutional bench of the Supreme Court of India is analysed. A review of the major principles laid down by the Supreme Court in relation to equality and liberty is followed by a critical examination of the innovative jurisprudence developed by the Court while interpreting Article 21. The principles of judicial independence, separation of powers, and evolution of the basic structure doctrine, as well as their relationship with the rule of law is critically evaluated. In the second part the political understanding of the rule of law is examined, particularly focusing on Nehru’s comment that the rule of law should follow the ‘rule of life’ and its meaning and continued impact on lawmaking. The chapter concludes by identifying four broad themes of the Rule of Law in India.

The Obvious Foundation Test

2018 ◽  
pp. 109-121
Author(s):  
Raju Ramachandran ◽  
Mythili Vijay Kumar Thallam
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
Basic Structure ◽  
Legislative Power ◽  
Judicial Appointments ◽  
The Supreme Court ◽  
The Future

This essay deals with the ramifications of the judgment in the National Judicial Appointments Commission Case for the basic structure doctrine. The doctrine of basic structure places limits on the legislative power to amend the Constitution, and owes its origins to the judgment of the thirteen-judge bench of the Supreme Court in the Kesavananda Bharati v. State of Kerala ((1973) 4 SCC 225). According to the authors, the judges in the NJAC Case, by striking down the 99th Amendment to the Constitution of India for violating the basic structure, appear to have conceptually expanded the remit of the basic structure doctrine significantly. They conclude that the contents of what was held to be part of basic structure in the NJAC Case are largely incapable of being defended normatively. Against this background, they chart the significance of the judgment on constitutional law and separation of powers questions in the future.

scholarly journals Crown and Foreign acts of State Before British Courts

2019 ◽  
pp. 714-732
Author(s):  
Eirik Bjorge ◽  
Cameron Miles
Keyword(s):  
United Kingdom ◽  
Supreme Court ◽  
Separation Of Powers ◽  
Case Law ◽  
The United Kingdom ◽  
The Supreme Court ◽  
Full Picture ◽  
The Relationship ◽  
Made In

The Supreme Court of the United Kingdom undertook in Rahmatullah v. Ministry of Defence and Belhaj v. Straw to demarcate the relationship between the judiciary and the executive with respect to Crown and foreign act of state. This chapter aims to unpack Rahmatullah and Belhaj for the reader and further to use these decisions to enquire into the constitutional underpinnings of the British act of state doctrines—particularly as they pertain to the separation of powers. The chapter concludes that there exists a general uncertainty regarding the scope of the doctrines, and a lack of jurisprudential development with respect to their constitutional underpinnings. But it is undeniable that progress, however minor, has been made in these decisions. The scene has been set in Rahmatullah and Belhaj for further developments—even if litigants will still need to refer to the earlier case law in order to get the full picture.

The Supreme Court of India and the Inter-Institutional Dynamics of Legislated Social Rights

2020 ◽  
Vol 53 (4) ◽  
pp. 411-437
Author(s):  
Gaurav Mukherjee
Keyword(s):  
Food Security ◽  
Supreme Court ◽  
Separation Of Powers ◽  
Theoretical Framework ◽  
Democratic Legitimacy ◽  
Social Rights ◽  
Socioeconomic Rights ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The Right

The jurisprudence of the Supreme Court of India is generally celebrated in the academic literature for its creative use of constitutional interpretation to read in certain socioeconomic rights into the ‘right to life’ provision despite their textual absence from the Constitution. However, this line of case law made the obtainment of a judicial remedy highly conditional upon an extant scheme or law, was necessarily piecemeal, deferent to the executive, and incapable of fixing precise accountability upon a violation or addressing issues of systemic material insufficiency. Much of this had to do with the absence of a rights-based legislative framework. The enactment of the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (MGNREGA) and the National Food Security Act, 2013 (NFSA) presented major developments in the livelihood and food security regimes in India, and a leap forward for legislated social rights. These legislations consolidated, expanded and entrenched a number of existing rights which had come into being through judicial decisions. In this paper, I examine the antecedents of social rights in India, and show the afterlife of disagreements over appropriateness, practicality and affordability, which resulted in the adoption of the Directive Principles of State Policy (DPSP) in the Indian Constituent Assembly, persist in legislative design and judicial reasoning. In this paper, I analyse judicial treatment of these laws and propose a novel theoretical framework for better understanding them. The theoretical framework has discursively antagonistic and discursively catalytic components, and sheds light on the inter-branch institutional dynamic which arises when NFSA and MGNREGA based public interest litigation (PIL) is activated. I suggest that such PIL and the kinds of complex, dialogic remedies which result from them have effects in the political, legal, and social fields. These remedies result in a form of hybridized politico-legal accountability that enables the Supreme Court of India to safeguard its institutional capital, while also being able to better engage with concerns such as polycentricity, democratic legitimacy, lack of expertise, federalism, and the separation of powers.

5 The Judges of the Supreme Court

2019 ◽  
Author(s):  
Dickson Brice
Keyword(s):  
Financial Crisis ◽  
Supreme Court ◽  
Advisory Board ◽  
Irish Society ◽  
Judicial Appointments ◽  
The Supreme Court ◽  
History Of ◽  
Eligibility Requirements

This chapter begins by considering the eligibility requirements for appointment to the Irish Supreme Court before tracing the history of the system for selecting the judges. Particular attention is given to whether the judges selected have been politically independent. The work of the Judicial Appointments Advisory Board is analysed, as are the current proposals to create a Judicial Appointments Commission and a Judicial Council. A section charts the rise in judicial salaries and examines the controversy over the constitutionality of asking judges to take a pay cut after Ireland’s financial crisis in 2008. After a brief section on retirement ages there is a narrative of who has succeeded whom in the Supreme Court from 1924 until today (57 judges in all). The chapter concludes with an analysis of the extent to which Supreme Court judges have been representative of Irish society.

A Committed Judiciary

2018 ◽  
pp. 18-30
Author(s):  
T.R. Andhyarujina
Keyword(s):  
Supreme Court ◽  
Prime Minister ◽  
Judicial Independence ◽  
Tipping Point ◽  
Judicial Appointments ◽  
The Supreme Court ◽  
History Of

The tipping point in the history of judicial appointments in India was the judgment of the Supreme Court in Kesavananda Bharati v. State of Kerala ((1973) 4 SCC 225). In this essay that spans the tumultuous period between this judgment and the end of the Emergency (in 1977) when Indira Gandhi was prime minister, the author demonstrates how judicial appointments became a proxy for a larger battle for control of the Constitution. Arguing that the independence of the judiciary was imperilled beyond redemption, the author carefully traces the pattern of executive interference up to and after the proclamation of Emergency. This essay argues that the severe blow dealt to judicial independence in this period, in a way, determined the course of how the process for judicial appointments was shaped in future decades.

scholarly journals Let's (Not) Make This Work! Why Stare Decisis Workability Should be a Sword but Not a Shield

2019 ◽  
Author(s):  
Audrey Lynn
Keyword(s):  
United States ◽  
Supreme Court ◽  
Separation Of Powers ◽  
The United States ◽  
United States Supreme ◽  
Constitutional Interpretation ◽  
Stare Decisis ◽  
The Supreme Court ◽  
Lower Courts ◽  
History Of

A factor of the United States Supreme Court’s stare decisis test, workability differentiates precedential rules that have proven easy for lower courts to apply in a consistent and fair manner from those that have not. This note addresses the question of whether workability is a legitimate reason for retaining a given interpretation of a statute. The Note begins by providing an illustration of what this Note will sometimes refer to as the “preservative use” of workability. The Note then lays out the history of workability as a consideration of stare decisis and describes how the factor has changed in recent decades. In so doing, its focus is on workability in the context of statutory interpretation. In order to explain the background and development of the factor, however, it is necessary to discuss specific cases in which the Supreme Court has applied workability in the context of constitutional interpretation. The two contexts must be differentiated for purposes of this Note because the thesis of this Note—i.e., that preserving an incorrect interpretation of a statute because of its relative workability violates separation of powers—has no parallel when a court interprets a constitution because in that case there is no inherent infringement on legislative power. This Note then explains why the change toward using workability to preserve erroneous precedent is not required logically, contravenes the basic purposes of stare decisis, and is constitutionally invalid as a violation of separation of powers. Finally, this Note proposes a new way to articulate the stare decisis test that does not discard workability as a consideration but precludes the preservative use criticized by this Note.

Judicialization of Judicial Appointments?

2018 ◽  
pp. 208-218
Author(s):  
Chintan Chandrachud
Keyword(s):  
Civil Society ◽  
Supreme Court ◽  
Judicial Independence ◽  
Constitutional Reform ◽  
Judicial Appointments ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Increasing Trend ◽  
Lay Members ◽  
The Uk

This essay discusses United Kingdom’s transition to the commission model of judicial appointments, with the advent of the Constitutional Reform Act of 2005 (CRA). The essay expounds that the commission model in the UK provides for a sustained participation of ‘lay’ members, who are expected to be representatives of the civil society. The author aligns with the view that the fragmentation of the appointments process amongst various actors is an exercise towards appointing a more diverse judiciary, and in no way impinging upon judicial independence. This essay analyses how the Supreme Court of India in the NJAC Case interpreted the appointments process ushered in by the UK CRA. This essay critiques the Indian Supreme Court’s reading of the CRA, and how the Court’s conclusion that the appointments processes in the UK shows an increasing trend toward judicialization may either be incorrect, or highly reductionist.

Justice Chelameswar’s Dissent

2018 ◽  
pp. 158-167
Author(s):  
Arghya Sengupta
Keyword(s):  
Separation Of Powers ◽  
Basic Structure ◽  
Constitutional Amendment ◽  
Constitutional History ◽  
Judicial Appointments ◽  
History Of ◽  
The Government

This essay commences with a discussion of how Justice Chelameswar’s dissenting judgment in the NJAC Case understands the basic structure doctrine. Moving ahead, the essay dissects the methodology adopted by Justice Chelameswar for assessing the validity of a constitutional amendment tested against the basic structure, and its application for testing the validity of the 99th Amendment to the Constitution. This essay appreciates Justice Chelameswar’s understanding of the separation of powers principle insofar as he acknowledges that a strict insulation of the branches of the government is impractical. The author brings to light Justice Chelameswar’s careful understanding of the constitutional relationship between the executive and the judiciary in light of the separation of powers principle, and how that cannot be lost in an over-emphasis on select instances from constitutional history of executive interference in judicial appointments.

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