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.

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.

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.

Opening up Appointments

2018 ◽  
pp. 96-108
Author(s):  
Madhavi Divan
Keyword(s):  
Civil Society ◽  
Public Interest ◽  
Public Interest Litigation ◽  
Deep Dive ◽  
Judicial Appointments ◽  
High Courts ◽  
The Supreme Court ◽  
Lay Members ◽  
Opening Up

This essay takes a deep dive into the role of the civil society in the judicial appointments process. It begins with the observation that the superior courts in India, during the last few decades, have assumed an activist role. Public interest litigation on issues which have the potential to impact various sections of society are being entertained by the Supreme Court and the High Courts. This essay argues that India should not stay far behind from including members of the civil society, or ‘lay’ members in the judicial appointments process. It is also argued that the inclusion of lay people in the appointments process would positively impact the cause of diversity in appointments. In this context, this essay espouses the cause of civil society members in the judicial appointments process, and shields their inclusion in the National Judicial Appointments Commission from the allegation of violating the independence of the judiciary.

Judicial Politics and Judicial Reform

2020 ◽  
pp. 148-156
Author(s):  
Jack M. Balkin
Keyword(s):  
Supreme Court ◽  
Judicial Politics ◽  
Term Limits ◽  
Early Years ◽  
Constitutional Reform ◽  
Judicial Reform ◽  
Judicial Appointments ◽  
Federal Judiciary ◽  
Liberal Democratic ◽  
The Supreme Court

In the early years of the next regime, conservative courts will face off against liberal Democratic politicians. Courts are very unlikely to be able to do much to repair constitutional rot. Constitutional renewal must come from popular mobilizations and demands for reform, including constitutional reform. Growing frustration with the courts will lead to calls for reform of the federal judiciary. Reforms should aim at lowering the stakes of judicial appointments and assisting depolarization. Court-packing proposals achieve neither goal. Three better approaches are (1) instituting regular appointments to the Supreme Court; (2) achieving the equivalent of term limits for Supreme Court justices by changing quorum rules; (3) increasing the Court’s workload (instead of limiting its jurisdiction); and (4) using sunrise provisions that take effect in the future so that partisan advantages are harder to predict. Each of these proposals can be implemented constitutionally through ordinary legislation.

4. Judicial Independence

2017 ◽  
Author(s):  
Brian Thompson ◽  
Michael Gordon
Keyword(s):  
Supreme Court ◽  
Judicial Independence ◽  
Constitutional Reform ◽  
Legal Principles ◽  
The Public ◽  
Judicial Appointments ◽  
Wide Range ◽  
Lord Chancellor ◽  
The Relationship

Extracts have been chosen from a wide range of historical and contemporary cases to illustrate the reasoning processes of the courts and to show how legal principles are developed. This chapter examines the notion of judicial independence. It discusses the Constitutional Reform Act 2005 and its provisions reforming the office of the Lord Chancellor, establishing a new Supreme Court, and restructuring judicial appointments. Judicial diversity and discipline, along with further change to the judicial appointments process, are also considered. The chapter also considers the accountability of the judiciary to Parliament and the public, and the relationship between judicial independence and parliamentary privilege.

Judicial Independence: The Politics of the Supreme Court in Mexico

2000 ◽  
Vol 32 (3) ◽  
pp. 705-735 ◽  
Author(s):  
PILAR DOMINGO
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Political System ◽  
Judicial Independence ◽  
Constitutional Reform ◽  
Constitutional Rule ◽  
Dominant Party ◽  
The Supreme Court ◽  
The Relationship

This article examines the role of the Supreme Court in the development of the Mexican political system. The judiciary provided an important source of regime legitimation, as it allowed for the consolidation of a state of legality and a claim to constitutional rule of law, at least in discourse. However, the judiciary was in effect politically subordinated to the logic of dominant party rule through both specific constitutional reforms since 1917 that weakened the possibility of judicial independence and a politics of institutional and political co-optation. The constitutional reform of 1994 has significantly altered the nature of the relationship between the executive and the Supreme Court.

Constitutional Reform of the Judicial Branch: Symbolic vs. Operational Considerations

1984 ◽  
Vol 17 (2) ◽  
pp. 227-252 ◽  
Author(s):  
Peter H. Russell
Keyword(s):  
Supreme Court ◽  
Judicial Independence ◽  
Constitutional Reform ◽  
House Of Commons ◽  
National Institutions ◽  
The Supreme Court ◽  
Interesting Possibility

abstractIf the next stage of constitutional renewal is to be the strengthening of national institutions, consideration should be given to the judicial branch of government as well as to the Senate and House of Commons. In assessing reforms in this area it is important to distinguish the symbolic from operational consequences. First priority should be given to constitutional entrenchment of the Supreme Court. Although the significance of such an amendment is largely symbolic, it is needed to remove uncertainties created by references to the Supreme Court in the Constitution Act, 1982. A general guarantee of judicial independence should be abandoned as a misguided exercise in constitutional symbolism. From both a symbolic and operational perspective, reform of section 96 of the original constitution holds out the most interesting possibility of establishing the constitutional basis for a truly national judiciary.

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.

Modernising the constitution: completing the unfinished business

Legal Studies ◽  
2004 ◽  
Vol 24 (1-2) ◽  
pp. 119-133 ◽  
Author(s):  
K E Malleson
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
Constitutional Reform ◽  
The Other ◽  
Constitutional Change ◽  
Unfinished Business ◽  
Judicial Appointments ◽  
The Uk ◽  
Lord Chancellor ◽  
The Relationship

Constitutional reform in the UK is usually pragmatic and piecemeal. Occasionally, however, comprehensive changes are proposed which are primarily driven by principle. The current proposals for constitutional change are a rare example of this type of reform. The abolition of the office of Lord Chancellor, the creation of a new Supreme Court and a Judicial Appointments Commission make up a package of measures intended to ‘redraw the relationship between the judiciary and the other branches of government’ and put it on a ‘modern footing’ by introducing a much clearer separation of powers between them.

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