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Appointment of Judges to the Supreme Court of India最新文献

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A Plague on Both Your Houses 你们两家的瘟疫
Appointment of Judges to the Supreme Court of India Pub Date : 2018-08-23 DOI: 10.1093/OSO/9780199485079.003.0005
P. Mehta
{"title":"A Plague on Both Your Houses","authors":"P. Mehta","doi":"10.1093/OSO/9780199485079.003.0005","DOIUrl":"https://doi.org/10.1093/OSO/9780199485079.003.0005","url":null,"abstract":"This essay proceeds with the view that the process of judicial appointments is as much political as it is legal, even though the arguments before the Supreme Court in the NJAC Case constantly treated it as a matter of only constitutional law. This essay argues that it is critical to be cognizant of the political events involving successive governments and Chief Justices wresting the power to appoint judges. It asks why and how the process of deciding upon an acceptable procedure for judicial appointments has become the source of an ongoing confrontation between the executive and the judiciary. It is argued in this essay that while the government and the judiciary might individually be justified in their stance, as a result of this conflict, public credibility of both these institutions has been adversely affected.","PeriodicalId":333958,"journal":{"name":"Appointment of Judges to the Supreme Court of India","volume":"20 5","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114095084","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 Review and Parliamentary Power 司法审查与议会权力
Appointment of Judges to the Supreme Court of India Pub Date : 2018-08-23 DOI: 10.1093/OSO/9780199485079.003.0006
K. Thomas
{"title":"Judicial Review and Parliamentary Power","authors":"K. Thomas","doi":"10.1093/OSO/9780199485079.003.0006","DOIUrl":"https://doi.org/10.1093/OSO/9780199485079.003.0006","url":null,"abstract":"This essay discusses the lack of any discernible attempt by the bench in the NJAC Case to read down the provisions of the 99th Amendment to the Constitution of India. This essay argues that neither the overwhelming majority with which the Amendment was passed in Parliament, nor the Court’s own precedent, where it has inclined towards reading down amendments came to the aid of the 99th Amendment. This essay also argues how the mere apprehension of abuse of power by the eminent persons or the Law Minister ought not to have been deemed sufficient to invalidate a constitutional amendment. In parting, the author provides some thoughts and recommendations, to both legislators and courts on how to ensure that future constitutional amendments do not meet the fate of the 99th Amendment, and receive the respect they deserve.","PeriodicalId":333958,"journal":{"name":"Appointment of Judges to the Supreme Court of India","volume":"11 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":"121959136","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 NJAC Case and Judicial Independence NJAC案与司法独立
Appointment of Judges to the Supreme Court of India Pub Date : 2018-08-23 DOI: 10.1093/OSO/9780199485079.003.0014
G. Subramanium
{"title":"The NJAC Case and Judicial Independence","authors":"G. Subramanium","doi":"10.1093/OSO/9780199485079.003.0014","DOIUrl":"https://doi.org/10.1093/OSO/9780199485079.003.0014","url":null,"abstract":"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.","PeriodicalId":333958,"journal":{"name":"Appointment of Judges to the Supreme Court of India","volume":"21 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":"125532326","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
A Committed Judiciary 坚定的司法机构
Appointment of Judges to the Supreme Court of India Pub Date : 2018-08-23 DOI: 10.1093/oso/9780199485079.003.0002
T. R. Andhyarujina
{"title":"A Committed Judiciary","authors":"T. R. Andhyarujina","doi":"10.1093/oso/9780199485079.003.0002","DOIUrl":"https://doi.org/10.1093/oso/9780199485079.003.0002","url":null,"abstract":"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.","PeriodicalId":333958,"journal":{"name":"Appointment of Judges to the Supreme Court of India","volume":"22 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":"127035710","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
Opening up Appointments 开放预约
Appointment of Judges to the Supreme Court of India Pub Date : 2018-08-23 DOI: 10.1093/oso/9780199485079.003.0008
M. Divan
{"title":"Opening up Appointments","authors":"M. Divan","doi":"10.1093/oso/9780199485079.003.0008","DOIUrl":"https://doi.org/10.1093/oso/9780199485079.003.0008","url":null,"abstract":"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.","PeriodicalId":333958,"journal":{"name":"Appointment of Judges to the Supreme Court of India","volume":"124 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":"128468172","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
Justice Lokur’s Concurring View Lokur法官的同意意见
Appointment of Judges to the Supreme Court of India Pub Date : 2018-08-23 DOI: 10.1093/OSO/9780199485079.003.0012
Alok Kumar
{"title":"Justice Lokur’s Concurring View","authors":"Alok Kumar","doi":"10.1093/OSO/9780199485079.003.0012","DOIUrl":"https://doi.org/10.1093/OSO/9780199485079.003.0012","url":null,"abstract":"This essay is a comment on the robust defence of the collegium system as espoused in Justice Madan Lokur’s opinion in the NJAC Case. The author critically analyses how Justice Lokur employs constitutional history, instances of executive interference during the decades after Independence, and accounts of ‘unsuitable’ appointments made at the behest of the executive, to come up with a defence of the collegium. Justice Lokur’s specific issues with the National Judicial Appointments Commission based on which he holds the 99th Amendment to the Constitution and the NJAC Act, 2014 unconstitutional are taken up for consideration in the essay. At the same time, this essay highlights certain principled deficiencies of the collegium which might have not been considered adequately in the NJAC Case. The essay argues that the notion that the collegium upholds judicial independence does not mean that an alternative system of appointments would be likely to disturb it.","PeriodicalId":333958,"journal":{"name":"Appointment of Judges to the Supreme Court of India","volume":"1 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":"130237649","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
Appointments to the Supreme Court of Nepal 任命尼泊尔最高法院法官
Appointment of Judges to the Supreme Court of India Pub Date : 2018-08-23 DOI: 10.1093/oso/9780199485079.003.0021
Semanta Dahal
{"title":"Appointments to the Supreme Court of Nepal","authors":"Semanta Dahal","doi":"10.1093/oso/9780199485079.003.0021","DOIUrl":"https://doi.org/10.1093/oso/9780199485079.003.0021","url":null,"abstract":"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.","PeriodicalId":333958,"journal":{"name":"Appointment of Judges to the Supreme Court of India","volume":"115 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":"124018247","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 Judicial Collegium 司法合议庭
Appointment of Judges to the Supreme Court of India Pub Date : 2018-08-23 DOI: 10.1093/OSO/9780199485079.003.0004
Arun Jaitley
{"title":"The Judicial Collegium","authors":"Arun Jaitley","doi":"10.1093/OSO/9780199485079.003.0004","DOIUrl":"https://doi.org/10.1093/OSO/9780199485079.003.0004","url":null,"abstract":"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.","PeriodicalId":333958,"journal":{"name":"Appointment of Judges to the Supreme Court of India","volume":"120 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":"125256621","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
From Kania to Sarkaria
Appointment of Judges to the Supreme Court of India Pub Date : 2018-08-23 DOI: 10.1093/oso/9780199485079.003.0001
Suchindran B.N.
{"title":"From Kania to Sarkaria","authors":"Suchindran B.N.","doi":"10.1093/oso/9780199485079.003.0001","DOIUrl":"https://doi.org/10.1093/oso/9780199485079.003.0001","url":null,"abstract":"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.","PeriodicalId":333958,"journal":{"name":"Appointment of Judges to the Supreme Court of India","volume":"6 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114001305","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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