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Judicial Appointments in Pakistan 巴基斯坦的司法任命
Appointment of Judges to the Supreme Court of India Pub Date : 2018-08-23 DOI: 10.1093/OSO/9780199485079.003.0019
S. Khosa
{"title":"Judicial Appointments in Pakistan","authors":"S. Khosa","doi":"10.1093/OSO/9780199485079.003.0019","DOIUrl":"https://doi.org/10.1093/OSO/9780199485079.003.0019","url":null,"abstract":"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.","PeriodicalId":333958,"journal":{"name":"Appointment of Judges to the Supreme Court of India","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124171125","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
The Obvious Foundation Test 显而易见的基础测试
Appointment of Judges to the Supreme Court of India Pub Date : 2018-08-23 DOI: 10.1093/oso/9780199485079.003.0009
Raju Ramachandran, Mythili Vijay Kumar Thallam
{"title":"The Obvious Foundation Test","authors":"Raju Ramachandran, Mythili Vijay Kumar Thallam","doi":"10.1093/oso/9780199485079.003.0009","DOIUrl":"https://doi.org/10.1093/oso/9780199485079.003.0009","url":null,"abstract":"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.","PeriodicalId":333958,"journal":{"name":"Appointment of Judges to the Supreme Court of India","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133485240","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Judicialization of Judicial Appointments? 司法任命的司法化?
Appointment of Judges to the Supreme Court of India Pub Date : 2018-08-23 DOI: 10.1093/OSO/9780199485079.003.0016
C. Chandrachud
{"title":"Judicialization of Judicial Appointments?","authors":"C. Chandrachud","doi":"10.1093/OSO/9780199485079.003.0016","DOIUrl":"https://doi.org/10.1093/OSO/9780199485079.003.0016","url":null,"abstract":"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.","PeriodicalId":333958,"journal":{"name":"Appointment of Judges to the Supreme Court of India","volume":"117 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133731541","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
South Africa—Analysing a Commission Model 南非——委员会模式分析
Appointment of Judges to the Supreme Court of India Pub Date : 2018-08-23 DOI: 10.1093/OSO/9780199485079.003.0017
C. McConnachie
{"title":"South Africa—Analysing a Commission Model","authors":"C. McConnachie","doi":"10.1093/OSO/9780199485079.003.0017","DOIUrl":"https://doi.org/10.1093/OSO/9780199485079.003.0017","url":null,"abstract":"This essay is an analysis of the working and performance of the South African Judicial Service Commission (JSC). This essay describes how the JSC has been successful in enhancing transparency in the selection process and improving diversity in the judiciary. The essay remains categorical about the South African judiciary being independent and credible, even in the face of apprehensions by the JSC’s detractors of undue political interference in appointments. This essay makes an important point that the independence of the judiciary remains contingent on several variables, and the identity of those making the appointments is just one such factor. Thus, this essay critically analyses the JSC as an example of the commission model. Upon a concise assessment of the JSC’s functioning, this essay highlights some general trends which offer insights for the judicial appointments process in India.","PeriodicalId":333958,"journal":{"name":"Appointment of Judges to the Supreme Court of India","volume":"99 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121823540","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Eight Fatal Flaws 八大致命缺陷
Appointment of Judges to the Supreme Court of India Pub Date : 2018-08-23 DOI: 10.1093/OSO/9780199485079.003.0010
Arvind Datar
{"title":"Eight Fatal Flaws","authors":"Arvind Datar","doi":"10.1093/OSO/9780199485079.003.0010","DOIUrl":"https://doi.org/10.1093/OSO/9780199485079.003.0010","url":null,"abstract":"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.","PeriodicalId":333958,"journal":{"name":"Appointment of Judges to the Supreme Court of India","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124473969","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Judicial Appointments in Sri Lanka 斯里兰卡的司法任命
Appointment of Judges to the Supreme Court of India Pub Date : 2018-08-23 DOI: 10.1093/OSO/9780199485079.003.0020
R. Abeyratne
{"title":"Judicial Appointments in Sri Lanka","authors":"R. Abeyratne","doi":"10.1093/OSO/9780199485079.003.0020","DOIUrl":"https://doi.org/10.1093/OSO/9780199485079.003.0020","url":null,"abstract":"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.","PeriodicalId":333958,"journal":{"name":"Appointment of Judges to the Supreme Court of India","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122118230","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Checks and Balances Revisited 重新审视权力制衡
Appointment of Judges to the Supreme Court of India Pub Date : 2018-08-23 DOI: 10.1093/oso/9780199485079.003.0007
Mukul Rohatgi
{"title":"Checks and Balances Revisited","authors":"Mukul Rohatgi","doi":"10.1093/oso/9780199485079.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780199485079.003.0007","url":null,"abstract":"This essay examines the role that the executive, represented by the Union Minister in-charge of Law and Justice, was expected to play on the National Judicial Appointments Commission. The author charts a history of what the Constituent Assembly envisaged the role of the executive to be and how this role eventually unfolded in the appointments process. The description of the history culminates with the observation about how the collegium system of appointments, meant to counteract executive interference in appointments, has come to be mired in controversy itself. This essay then engages with the judgment in the NJAC Case, and how the bench frowned upon the presence of the Law Minister on the NJAC. This essay contests that the Supreme Court’s apprehension that the Law Minister could cloud the views of the other members of the NJAC was based on conjectures and surmises.","PeriodicalId":333958,"journal":{"name":"Appointment of Judges to the Supreme Court of India","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129966924","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
The Sole Route to an Independent Judiciary? 司法独立的唯一途径?
Appointment of Judges to the Supreme Court of India Pub Date : 2018-08-23 DOI: 10.1093/OSO/9780199485079.003.0011
Gautam Bhatia
{"title":"The Sole Route to an Independent Judiciary?","authors":"Gautam Bhatia","doi":"10.1093/OSO/9780199485079.003.0011","DOIUrl":"https://doi.org/10.1093/OSO/9780199485079.003.0011","url":null,"abstract":"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.","PeriodicalId":333958,"journal":{"name":"Appointment of Judges to the Supreme Court of India","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127141259","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Recovering Lost Ground 收复失地
Appointment of Judges to the Supreme Court of India Pub Date : 2018-08-23 DOI: 10.1093/oso/9780199485079.003.0003
A. Ganguli
{"title":"Recovering Lost Ground","authors":"A. Ganguli","doi":"10.1093/oso/9780199485079.003.0003","DOIUrl":"https://doi.org/10.1093/oso/9780199485079.003.0003","url":null,"abstract":"The impact of the excesses of the Emergency was felt long after it was officially terminated. This essay uncovers how the Emergency impacted judicial appointments. The author discusses how the 1980s have been characterized, in the judgment in the NJAC Case, as a decade where judicial independence was imperilled due to executive interference in the matter of appointments. The author sets the record straight by shedding light on the 1980s, particularly pertaining to the judgment in SP Gupta v. Union of India (1981 Supp SCC 87) (First Judges’ Case). In this essay, the author puts up a defence of this judgment, which is largely seen in academic scholarship as a genuflection of the judges before the executive. With the help of anecdotal examples, this essay tries to untangle the case of the curious eighties, making the larger point that it is a decade not amenable to easy typifying.","PeriodicalId":333958,"journal":{"name":"Appointment of Judges to the Supreme Court of India","volume":"79 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126331405","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
Comparative Law in the NJAC Judgment NJAC判决中的比较法
Appointment of Judges to the Supreme Court of India Pub Date : 2018-08-23 DOI: 10.1093/oso/9780199485079.003.0015
Suhrith Parthasarathy
{"title":"Comparative Law in the NJAC Judgment","authors":"Suhrith Parthasarathy","doi":"10.1093/oso/9780199485079.003.0015","DOIUrl":"https://doi.org/10.1093/oso/9780199485079.003.0015","url":null,"abstract":"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.","PeriodicalId":333958,"journal":{"name":"Appointment of Judges to the Supreme Court of India","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124923162","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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