Appointments to the Supreme Court of Canada

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.

Comparative Law in the NJAC Judgment

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 Judicial Collegium

This essay addresses three pertinent aspects—first, how the Second Judges’ and Third Judges’ Cases led to the establishment of the collegium system. In this discussion, the essay analyses the key findings of the Second and Third Judges’ Cases, an exercise which is pertinent for an understanding of how the ‘collegium’ came into being. Second, this essay proceeds to establish a normative vision of what the judicial appointments process should look like so as to address the criticisms that the collegium system has been subjected to. The essay makes a strong case for reform of the collegium through practical examples of when it has failed in its constitutional duties. Third, the essay addresses questions relating to how appointments should be made, and who should make the appointments.

From Kania to Sarkaria

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.

Appointments to the Supreme Court of Nepal

This essay analyses how Nepal has consciously made attempts to depoliticize judicial appointments—while appointments to the Supreme Court were originally made at the behest of the executive (the monarch), the fifth Constitution onwards (in 1990), appointments became the prerogative of the ‘Judicial Council’, a body chaired by the Chief Justice of Nepal. This essay describes how by the time Nepal enacted its Interim Constitution of 2006, judicial appointments involved all three branches of the government. This essay observes that the 2015 Constitution retains the Judicial Council and the Parliamentary Hearing Special Committee, and by necessary implication, the model of power-sharing between the three branches of government. Though still largely untested, this essay parts with the belief that the appointment procedures under this Constitution may lead to appropriate selections being made, though its complicated power-sharing devices might quite easily descend into gridlock.

Judicial Appointments in Sri Lanka

This essay describes the trajectory followed by judicial appointments in Sri Lanka, under its different constitutions, and how each Constitution has been successively less protective of judicial independence, with specific references to the constitutions of 1972 and 1978. The essay attributes much of the erosion of judicial independence to the President being the sole authority for appointment and removal of judges, particularly after the enactment of the Eighteenth Amendment to the Constitution of the Democratic Socialist Republic of Sri Lanka in 2010. The essay parts with the hope that the coming into power of a new government under President Maithripala Sirisena, and its avowed aim of reversing the excesses perpetrated by the previous government will assist in depoliticizing the judicial appointments process.

Judicial Appointments in Pakistan

This essay discusses the landmark developments pertaining to judicial appointments in the last decade in Pakistan—particularly, Pakistan’s experiment with the commission model of appointments with the 18th Constitution Amendment, 2010 establishing the Judicial Commission of Pakistan comprising members from across the judiciary, political executive, and the bar. In a challenge to its validity, the Supreme Court of Pakistan upheld the 18th Amendment in District Bar Association, Rawalpindi v. Federation of Pakistan (District Bar Association). This essay discusses the appointments process in Pakistan that existed prior to the 18th Amendment, followed by a close examination of the judgment in District Bar Association. It argues that even though the 18th Amendment, which ushered in the commission model in Pakistan, was upheld, by means of interpretation, what the Supreme Court has upheld is different from the process envisaged by this Amendment.

The Sole Route to an Independent Judiciary?

This essay critically analyses the judgment in the NJAC Case against the vehemently contested issue of judicial primacy in appointments. The author examines the NJAC Case’s treatment of the question of primacy of judges. The essay commences with a discussion of the Second Judges’ Case, and the judicial rationale behind construing ‘consultation’ under Article 124 of the Constitution as ‘concurrence’ of the Chief Justice of India in the matter of appointments. The author assesses both whether as a descriptive fact the judgment in the NJAC Case held judicial primacy to be part of the basic structure, as well as whether such reading was normatively justified. This essay also expresses reservations about the extent of the Court’s engagement with the concept of ‘primacy’, and its importance for the independence of the judiciary, and whether it is part of the basic structure of the Constitution.

Eight Fatal Flaws

The author launches a scathing indictment of the National Judicial Appointments Commission Act, 2014 (NJAC Act), and presents what he calls the ‘fatal flaws’ in the legislation. The essay argues that the judgment in the NJAC Case is a resounding invalidation of a flawed enactment that was the NJAC Act. The author calls out the NJAC Act for its faulty drafting, and how it was open to challenge on eight specific grounds. He believes that the NJAC Act was not the fruit of a particularly thoughtful exercise in drafting of laws, a view which was also accepted by the Court. The presence of an even number of members on the NJAC, absence of qualifications for eminent persons, the susceptibility of the appointments process to be amended by Parliamentary law, and the possibility of misuse of the veto power were some of the grounds which indicated that the NJAC was doomed to fail.

Opening up Appointments

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.