ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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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.

(De)Valuing Dignity

The Supreme Court of India holds dignity to be a foundational constitutional value. Judicial enthusiasm about dignity must, however, be sensitive to the risk of devaluing it in the absence of close legal analysis. Three such risks are identified here. First, the constitutional status of dignity is unclear. Is it a right under Article 21 or a value underlying fundamental rights? The choice has significant interpretive implications. Second, does dignity guarantee a minimum standard of life, or does it refer to human flourishing entailing extensive state obligations? Third, can dignity be understood as a source of limiting rights as held in the Aadhaar decision?

A Battle of Three ‘A’s

Independence and Accountability of the Indian Higher Judiciary by Arghya Sengupta, Cambridge, New York, Port Melbourne, New Delhi, and Singapore: Cambridge University Press, 2019; pp xviii + 317, price not indicated.

The Myth of ‘Collective Conscience’

India’s legal doctrine of “collective conscience” cannot be traced back to the original concept as propagated by French sociologist Emile Durkheim. The consistency with which this concept has been used by the Indian judiciary while imposing the death sentence, compels us to contemplate how it has been applied. An attempt is made in this article to present the flaws in the concept of collective conscience and in its application in India.

Corporate Responsibility for Bhopal

Union Carbide Corporation managed to wrangle out of the Bhopal gas tragedy by exploiting a loophole in the Foreign Exchange Regulation Act. If governments are not vigilant, other companies, ushered for “Make in India”, would do the same.

Supreme Court's Seniority Norm

Given that the Chief Justice of India composes panels and assigns cases to judges, unlike in systems where cases are randomly assigned to avoid bias or where apex constitutional courts sit in plenary sessions, the question of how the CJI is appointed is crucial. This article seeks to answer this question by empirically investigating whether the seniority norm existed prior to the establishment of the Supreme Court of India - specifically, in the high courts of Bombay, Calcutta, Madras, Allahabad, Patna, and in the Federal Court of India.

Misplaced Priorities and Class Bias of the Judiciary

It is clear from the recent record of the higher judiciary that the imperative of upholding civil liberties, socio-economic rights, and environmental protection has been subordinated to agendas such as the "war on terror", "development" and satisfying corporate interests. Far from remaining faithful to the motives that resulted in the institution of public interest litigation, the Supreme Court has tended to act against the interests of the socio-economically backward.

Myth of Judicial Overreach

The question of judicial activism is once more in the limelight with two Supreme Court judges making observations on the "overreach" of the judiciary. This article examines the veracity of such observations and points out that the courts must intervene to enforce the rule of law and cannot remain mute spectators to the callousness of the executive class.
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