Indian judiciary

The complete composition of the collegium continues to run into rough weather.

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.

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?

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.

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.