Comparative Law in the NJAC Judgment

2018 ◽  
pp. 197-207
Author(s):  
Suhrith Parthasarathy
Keyword(s):  
Supreme Court ◽  
Comparative Law ◽  
Judicial Independence ◽  
International Experience ◽  
Judicial Appointments ◽  
The Supreme Court

This essay is an overview of the use of comparative law in the NJAC Case, and offers a critique of the Supreme Court’s analysis of comparative law in judicial appointments. The essay argues that the Supreme Court adopted an isolationist approach by shunning international experience from fifteen countries cited before it by the Union of India to drive home the point that executive presence in judicial appointments does not, by itself, impinge upon judicial independence. The author contests the Supreme Court’s cursory dismissal of relevant international experience on the ground that India, with its peculiar set of circumstances cannot replicate the experiences of other nations in judicial appointments. The author argues that this is self-serving and the judgment would have been better served by a surer grasp of comparative law and its rationales.

The NJAC Case and Judicial Independence

2018 ◽  
pp. 168-194
Author(s):  
Gopal Subramanium
Keyword(s):  
Supreme Court ◽  
Conceptual Understanding ◽  
Judicial Independence ◽  
High Court ◽  
Judicial Appointments ◽  
The Supreme Court ◽  
Judicial History

This essay comments on how the judgment in the National Judicial Appointments Commission Case is a befitting affirmation of judicial independence by the Supreme Court, against endemic executive interference in judicial appointments and transfers. This essay provides a conceptual understanding of judicial independence, against the backdrop of certain pivotal instances from India’s judicial history. The highlight of this essay is the author’s discussion of Union of India v. Sankalchand Himatlal Sheth ((1977) 4 SCC 193)—a judgment crucial for establishing the contours of judicial independence in the context of transfer of High Court judges. This essay gives this case the attention it merits by addressing the issue of judicial independence against its backdrop.

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.

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.

Courts between Democracy and Hybrid Authoritarianism: Evidence from the Venezuelan Supreme Court

2011 ◽  
Vol 36 (04) ◽  
pp. 854-884 ◽  
Author(s):  
Raul A. Sanchez Urribarri
Keyword(s):  
Social Control ◽  
Supreme Court ◽  
Policy Making ◽  
Judicial Independence ◽  
Judicial Power ◽  
Theoretical Discussion ◽  
Hybrid Regimes ◽  
The Supreme Court ◽  
Comprehensive Intervention ◽  
The Government

This article offers a theoretical discussion about courts in “hybrid regimes” that evolve from formerly democratic countries. The evolution toward authoritarianism typically allows governments more latitude to reduce judicial independence and judicial power. Yet, several reasons, including legitimacy costs, a tradition of using courts for judicial adjudication and social control, and even the use of courts for quenching dissent may discourage rulers from shutting down the judicial contestation arena and encourage them instead to appeal to less overbearing measures. This usually leads to a decline of the judiciary's proclivity to challenge the government, especially in salient cases. To illustrate these dynamics, I discuss the rise and fall of judicial power in Venezuela under Chávez's rule, focusing on the Constitutional Chamber of the Supreme Court. Formerly the most powerful institution in the country's history, the Chamber briefly emerged as an influential actor at the beginning of the regime, but a comprehensive intervention of the judiciary in 2004 further politicized the court and effectively reduced its policy-making role.

Appointments to the Supreme Court of Canada

2018 ◽  
pp. 231-241
Author(s):  
Peter McCormick
Keyword(s):  
Supreme Court ◽  
Prime Minister ◽  
Law School ◽  
Supreme Court Of Canada ◽  
Judicial Appointments ◽  
Canadian Experience ◽  
The Supreme Court

This essay traces the genesis of the Supreme Court of Canada under the Supreme Court Act of 1875, and the appointment procedure as described in it. The essay argues that the widening of the pool, where consultation for judicial appointments is made, has resulted in the appointment of persons with diverse credentials. The author describes how a reformed procedure for appointments involves the Prime Minister and the Minister of Justice consulting various Chief Justices, law school deans, and provincial justice ministers to solicit names of potential appointees. The Canadian experience demonstrates variations in appointment mechanisms for broad-based consultation even in the absence of a commission model. The author, however, rues that most innovations in the appointments process have been short-lived, with a general shift to a more secretive process for appointments.

From Kania to Sarkaria

2018 ◽  
pp. 3-17
Author(s):  
Suchindran B.N.
Keyword(s):  
Supreme Court ◽  
Critical Analysis ◽  
Judicial Appointments ◽  
Chief Justice ◽  
The Supreme Court ◽  
The 1960S

This essay is a critical analysis of the dynamics of executive-judiciary relations in judicial appointments from 1950 to 1973. It serves as a primer for the appointments made to the Supreme Court from 1950–73, the supersessions that were apprehended but did not come about, and generally, what weighed with the judges as well as the executive while making appointments in the years immediately after the Constitution came into force. The essay traverses the historical journey of appointments to the Supreme Court from the tenure of the first Chief Justice of India, Justice H.J. Kania, to the appointment of Justice R.S. Sarkaria in 1973. It provides insights, and in some cases, hitherto unknown facts about the factors that prompted the appointment of certain justices to the Court. The essay also documents the gradual incursion that the executive had begun to make in judicial appointments in the latter half of the 1960s.

Custom in Public Law

1986 ◽  
Vol 21 (3-4) ◽  
pp. 450-500
Author(s):  
Shimon Shetreet
Keyword(s):  
Supreme Court ◽  
Judicial Independence ◽  
Public Law ◽  
Historical Document ◽  
Area Of Interest ◽  
The Supreme Court

This article is based on a study on custom in public law conducted some years ago due to the welcome initiative of Prof. G. Tedeschi. Like many others, I too responded to his irresistible powers of persuasion, to conduct a study on custom in a field close to my area of interest, public law. I owe many thanks to Prof. Tedeschi, for by virtue of this study I have acquired significant perspectives for the analysis of public law.During the course of my work on another study (on judicial independence, conducted for the Jerusalem Institute for the Study of Israel), I discovered an historical document pertaining to Prof. Tedeschi, in whose honour this issue of the Israel Law Review appears. The document concerns an offer, addressed to Prof. Tedeschi in 1953, to be appointed a Justice of the Supreme Court.

scholarly journals Nuevos enfoques de la independencia judicial. Dos puntas de iceberg en la reforma de la Ley Orgánica del Poder Judicial: la comisión permanente del CGPJ y el gabinete técnico del Tribunal Supremo

2016 ◽  
pp. 375
Author(s):  
Rosa María Fernández Riveira
Keyword(s):  
Supreme Court ◽  
Judicial Independence ◽  
The Other ◽  
General Council ◽  
The Political ◽  
Permanent Commission ◽  
Other Hand ◽  
The Supreme Court ◽  
Made In

Este trabajo estudia dos reformas concretas de la Ley orgánica del Poder Judicial que se producen en octubre de 2015: la Comisión Permanente, como órgano del Consejo que ve incrementado su número de vocales, sus competencias y que situado bajo la dirección del Presidente del Consejo ha ido creciendo en relevancia; y el Gabinete Técnico del Tribunal Supremo, que se regula también como órgano al servicio del Tribunal pero bajo la obediencia y dirección del Presidente. Un órgano que asume unas competencias muy importantes en un momento en el que se reforma la vieja casación pasando a ser un recurso determinado por el «interés casacional objetivo». Estos dos cambios, como puntas de iceberg, son el aviso de nuevos enfoques sobre planteamientos clásicos acerca de la independencia judicial tales como: las relaciones existentes entre el Consejo General del Poder judicial y el Tribunal Supremo, la presencia del elemento político en el corazón de la independencia judicial, la enorme relevancia de un proceso de selección de nuestros jueces justo, plural y confiable y la necesidad de articular mecanismos de responsabilidad judicial institucional e individual.This paper analyses two reforms about Organic Law of Judiciary which have been made in October 2015: the Permanent Commission as part of Council body that it has seen increasing its competences and it works under careful supervision of the President of the General Council of the Judiciary. It has suffered an augmentation of members on its composition and it has got more relevance as important voice in the General Council and, on the other hand, the Technical office of the Supreme Court, which has been redesigned with new competences working under Instructions of President. And all these changes are been implemented at the same time that it has been adopted the new cassation appeal. Both reforms as iceberg’s tips are performing important reflections about classical principles for example: different manners to understand the judicial independence, the political element within judicial independence, the relevance of appointment judicial processes and of course the accountability discourse as essential part within the judicial independence.

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