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Appointment of Judges to the Higher Judiciary during the Pandemic—II

The impact of the appointment process for high court and Supreme Court judges following the recommendations of the collegium is examined. The functioning of the collegium itself was not significantly affected by the pandemic. However, how many of its recommendations have been implemented by the union government, and how quickly, point to the need for the judiciary and the government to work together to ensure optimal judicial functioning.

Appointment of Judges to the Higher Judiciary during the Pandemic – I

As with most other activities, the COVID-19 pandemic has had a severe impact on the functioning of courts, revealed through the steep drop in the number of cases disposed of during the pandemic. However, there has not been much comment on the functioning of the collegium, which, theoretically, should not be compromised in these circumstances. The performance of the Supreme Court collegium during the pandemic is examined in this column by comparing it with available data for past years.

Clarifying the Rights of Daughters as Coparceners

By clearing the confusion over the interpretation of the Hindu Succession (Amendment) Act, 2005, the Supreme Court in Vineeta Sharma v Rakesh Sharma (2020) has secured for Hindu women the right to be coparceners in joint family property with retrospective effect from 1956. The three-judge bench has restored the progressive intent to the 2005 amendment, but has based it on a conservative interpretation that reinforces the basic concepts of the Hindu joint family and coparcenary ownership of property.

Domicile Reservations in National Law Universities

National law universities set up by state governments have remained “islands” for too long–elitist and distanced from the local communities in which they were located. Domicile reservations, favouring students who are from the state where such universities have been set up are one way of rectifying this trend. The elite resistance to this move has no basis in constitutional principles and reflects an unfounded fear of the “local.”

Lawless Lawmaking in a COVID-19 World

India’s management of the COVID-19 global pandemic has been marked by excessive centralisation, lawless lawmaking and non-consultative decision-making processes at the union government level. This has created an atmosphere of confusion in the management of the disease, leading to India becoming one of the global hotspots and cases fast spiralling out of the control of local authorities.

A Regressive World View on Scheduled Tribe Reservations

The Supreme Court’s setting aside of the Andhra Pradesh government’s preference scheme for Scheduled Tribes in schools in Scheduled Areas shows up a world view which believes that Adivasis need to be pushed into the “mainstream” and compelled to abandon their “backward” culture. However, this goes against the constitutional vision, as made clear in the Andhra Pradesh High Court’s majority judgment in the same case, which articulates a more nuanced and sensitive position on the rights of India’s Adivasis.

Mapping the Appointments and Tenures of Supreme Court Judges

The debate about the tenure of judges of the Supreme Court of India is fixated somewhat unnecessarily on the retirement age than the actual time spent in the Court. Examining the length of the tenure gives some hints as to the unwritten criteria of appointment and may potentially offer a deeper understanding of the systemic problems faced by the courts.

Questioning Citizenship-based Taxation in Budget 2020

The proposal in the Finance Bill, 2020 to introduce taxation on the basis of citizenship for those non-resident Indians who do not pay tax in their countries of residence has proven to be controversial. It creates an altogether new basis for taxation of income under Indian laws. While criticisms related to its (unintended) impact are justified, there is also a need to examine the constitutional validity of this move given the extraterritorial nature and impact of the tax.

A Decade of Decay

Between 2010 and 2019, the Supreme Court of India has suffered a credibility crisis not seen since the 1970s, with its reputation for independence and institutional strength lying in tatters. Deep systemic failings have come to the fore as the Court enters a new decade in the midst of an existential battle for relevance.

A Shoddy Judgment

In holding that state governments could not pass laws to allow for direct appeals to the Supreme Court, the constitution bench of the Supreme Court in Rajendra Diwan v Pradeep Kumar Ranibala in 2019 was concerned less about upholding constitutional provisions and more by a disagreement over policy. In as much as states allowing for appeals directly to the Supreme Court is bad policy, it is not necessarily unconstitutional and is entirely within the framework of federalism under India’s Constitution.

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