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07 Jan 2025 : The Hindu Editorial

Editorial 1: The Collegium and changes — it may still be early day

Context

Any meaningful reform of the collegium system is possible only when the government stops stonewalling proposals, on arbitrary and often undisclosed grounds.

 

Introduction

Two interesting nuggets of information have emanated in recent days about the functioning of the Supreme Court of India’s Collegium. As is often the case with the body’s processes, reports in the media attribute the news of these decisions to unnamed sources. The collegium, the accounts say, will now conduct interviews of candidates who have been recommended for elevation as judges to the High Courts. The panel will also, to the extent possible, exclude from selection those whose close relatives have served or continue to serve as judges of the High Courts or the Supreme Court.

  • By themselves, neither of these resolutions might seem especially remarkable.
  • One would think that appointments to important positions in the State — in this case, to the higher judiciary — would require careful consideration, including a meeting by the decision-makers with the nominated candidates.
  • One would also think that some amount of pruning of nominees is inevitable in any process of selection.
  • The collegium is conscious that a few deserving candidates might miss out in a move to exclude those with kin on the Bench, but it believes, on a balance, that this will help create a more diverse judiciary.

 

There is still a concern

  • It is too early to judge the merits of the choices made.
  • These choices may come to be seen as harbingers of change and reform in time.
  • For now, a familiar concern looms large, threatening to undermine the potential for change.

 

Challenges in Reforming the Collegium System

  • Any reform of the collegium system will only go so far if the government stonewalls proposals on arbitrary, whimsical, and often undisclosed grounds.
  • The collegium system is a product of judge-made law, which places it at a crossroads.
  • The system has no formal rules to bind it, is answerable to nobody, and its functioning is characterized by ad hocism and opacity.
  • Replacing the collegium system with a clear set of binding rules is essential to maintain its integrity.
  • There is a “memorandum of procedure”, but questions arise:
    • Does a breach of the manual carry any consequences?
    • Will the interviewing of candidates be written into the rules?
    • How will the collegium function under future Chief Justices of India (CJI)?

 

75th Anniversary of the Constitution

  • As the 75th anniversary of the Constitution’s adoption is marked, much is said in praise of the text and vision of the Constitution.
  • Its survival has revived the commitment to equality and social justice.
  • However, the inability to determine the best way to appoint judges remains an enduring blemish.
  • The framers of the Constitution debated the question of judicial appointments over many days.
  • They were mindful of the foundational ideas of the republic: the separation of powers between the legislature, the executive, and the judiciary.
  • Striking a balance between judicial independence and the sovereign function of making judicial appointmentswas always a complex issue.

 

The ‘middle course’ it was

  • Suggestions in the Constituent Assembly: Various suggestions were made in the Constituent Assembly regarding judicial appointments.
    • As per Dr. B.R. Ambedkar, the drafters chose to go down a “middle course”.
  • Appointment of Judges: The Constitution provides that: Judges to the Supreme Court are appointed by the President of India in consultation with the CJI and such other judges the CJI deems fit.
    • Judges to the High Courts are appointed by the President in consultation with the CJI, the Governor of the State, and the Chief Justice of the court.
    • Transfers of judges between High Courts can be made by the President after consulting the CJI.

 

Lack of Definition

  • While these stipulations are clear, they fail to define:
    • What manner of consultation ought to be made
    • How transparent the process should be
  • This lack of definition opened the provisions up for judicial consideration.

 

Second Judges Case (1993)

  • In the Second Judges Case (1993), the Court held that “consultation” must mean “concurrence”.
  • The concurrence was required not just from the CJI, but from a “collegium” of judges.
  • This new procedure aimed to maintain fidelity to the Constitution’s text while ensuring an independent and autonomous judiciary.

 

Collegium Process

  • The collegium, comprising the CJI and senior colleagues, would make recommendations for:
    • Appointment of judges to the High Courts or Supreme Court
    • Transfers of judges between High Courts
    • Election of a new Chief Justice to a High Court
  • The collegium makes these recommendations after consulting “consultee” judges.
  • The Union government can:
    • Accept the proposal
    • Return the proposal for reconsideration
  • If reconsidered and resubmitted, the government must sanction the resolution.

 

Challenges in the Process

  • The process seems simple, but there are no attendant and binding rules.
  • The government can block recommendations it deems inconvenient by:
    • Keeping the proposal pending
    • Stopping short of issuing a presidential warrant authorizing the appointment or transfer.

 

Paradox of Primacy

  • In theory, the collegium retains primacy over judicial appointments.
  • However, the government’s ability to block recommendations means the question of primacy remains moot.
  • In the Fourth Judges Case (2015), the Court emphasized that only the judiciary should retain pre-eminence, and any interference would impinge on the Constitution’s basic structure.

 

The Judges’ cases and rule of law

  • Regardless of our position on the collegium’s constitutional suitability, it currently represents the rule of law.
  • The government is legally obliged to follow the procedure laid down in the Judges’ cases and enjoys no discretion in the matter.
  • When the government sits over recommendations endlessly or resists proposals by failing to act, it is effectively stymieing the legal process.

 

The Need for Reforms and Accountability

  • There is no doubt that until we find a process that balances accountability with independence, embracing meaningful reforms within the current system remains critical.
  • The law as it stands must be followed.
  • The collegium’s newest proposals address some of the long-standing concerns over its processes, but implementation remains a key issue.

 

Court’s Role in Ensuring Compliance

  • Until now, while the Court has occasionally asked the government to act when it fails to follow through on a resolution, it has stopped short of issuing express directions for compliance.
  • The Court may have avoided such orders to prevent them from being seen as unnecessarily confrontational.
  • Ultimately, in matters like these, the goal is for the different wings of the state to work together collaboratively to ensure that the procedure is fulfilled.

 

Conclusion

But for the collegium system to retain salience, and for it to achieve its purported objective — the maintenance of our judiciary’s independence — the rulings in the Judges’ cases must be accorded due respect. The Court’s ability to function as a counter-majoritarian institution depends as much on its ability to declare the law as it does on its ability to ensure that the law is followed. For, as Chief Justice Coke put it, way back in 1611, summing up the essence of the rule of law, “The king hath no prerogative but what the law of the land allows him.”

Editorial 2: The end of global climate policy

Context

The backbone of the current arrangement is the disconnect between academic treatment and rules and practice, providing continuing advantage to the G7.

 

Introduction

The climate conference in Baku in 2024 turned the climate treaty on its head by scrapping the defining feature of the post-colonial world divided between ‘donors’ and ‘recipients’ and suggesting the need for an alternate global sustainability forum. The shift requires that developing countries take charge of their own destiny.

 

Purpose of the Climate Treaty in 1992

  • The purpose of the climate treaty in 1992 was to collectively deal with a common concern.
  • In an unequal world, this was defined by the G7 reducing future emissions of carbon dioxide despite the treaty acknowledging cumulative emissions alone matter.

 

Imbalance in Responsibility

  • Developing countries agreed to take on a problem they did not create in exchange for technology transfer and funds.
  • They did not realize that the imbalance in research capacity had set the stage for shifting the burden.

 

Backbone of the Current Arrangement

  • The backbone of the current arrangement is the disconnect between academic treatment and rules and practice, providing continuing advantage to the G7.
  • The way global concerns have been selected, agenda defined, and rules implemented — all the time dealing with the symptoms rather than the causes of problems — provides continuing advantages to the G7.

 

Shifting Responsibilities and Financial Support

  • The pressure to provide incentives for private finance and dealing with trade restrictions at the same time was never part of the ‘grand bargain’.
  • The G7 have now absolved themselves of any responsibility for climate change with, in India’s words, the “optical illusion” of providing financial support by 2035.

 

Two world views

  • The former colonial powers morphed into the G7 in 1973.
  • Climate change, particularly the reduction in emissions of carbon dioxide, is primarily the responsibility of the G7, who have overused their fair share of the common atmospheric resource.

 

Sustainable Development for the Global South

  • For the others, the greatest challenge is sustainable development: modifying pathways, lifestyles, and energy transition.
  • The way the agenda was set masks the injustice within the climate crisis and underestimates its extent.
  • The impact of the Global South, representing four-fifths of the global population and half the GDP, no longer following the G7’s lead is felt most significantly in climate change.
  • Growing calls for climate justice are emerging.
  • The Nationally Determined Contributions of 72 countries explicitly include the concept of a “just transition”, recognizing the social dimensions of climate action.

 

Understanding Climate Justice

  • Climate justice is not just about perceptions of fairness in specific policies; it questions existing distinctions between:
    • Global and local levels
    • Mitigation and adaptation
  • It highlights not just the disproportionate continuing levels of emissions but also the solutions like carbon pricing and trade restrictions that widen the income gap and increase inequality.
  • Current global rules do not reflect the interests of the Global South.

 

Conflicting Visions of Society and Progress

  • These views reflect conflicting visions of how society is organized and what constitutes progress.
  • Distinguishing between total emissions of countries and trends, drivers, and patterns of natural resource use masks the impact of the most stable global trend of urbanization, covering three-quarters of global emissions and natural resource use.
  • A more equal world and middle class are adopting distinct opinions, pathways, and actions compared to those who developed earlier.

 

The G7’s Resource Use

  • The foundational fact is that the patterns of urban natural resource use of the G7 are not being followed by the Global South.
  • The G7, with one-fifth the population, was consuming three-quarters of global resources in 1950, with the U.S. alone consuming 40%.
  • By the 1970s, three-quarters of the G7’s population had shifted to cities, and their lifestyles based on commodity prices kept low by the former colonial powers directly led to climate change.
  • The real price of the most traded commodity, oil, was not allowed to increase over a century, leading to its wasteful use.
  • By 2050, the G7 will account for 25% of global emissions with a 10% share of the global population, while Asiais expected to account for 55% of the world’s emissions, matching its share of the global population.
  • The time is ripe for new foundational principles of sustainability with justice at its center.
  • India would need to match the strategic thinking of the U.S. in setting up interlinked voluntary arrangements of the ‘rules-based order’, with rules determined by the G7, for a new order for ‘shared prosperity’ seeking comparable levels of well-being within ecological limits.

 

Global governance

  • With global cooperation itself in danger, three initiatives are suggested.
  • First, BRICS and partner countries should take the strategic leap for an alternate sustainability forum to support each other in the urban energy transition.
    • This would not be an anti-G7 forum, but focused on units located in member countries in different continents researching sustainability science, urbanisation, monitoring G7 climate policy and supporting exchange of experiences.
  • Second, the UN Climate negotiations should be limited to reviewing emissions reductions in the G7 and grants in the $300 billion to the most vulnerable — Small Island States and Least Developed Countries.
  • Third, international fora should be seen as what they are: annual stocktaking that helps the world assess its position and decide course-correction accordingly.
    • The World Trade Organization with its dysfunctional dispute settlement could also be allowed to wither away.
  • The BRICS playing a bridging role in the new multilateralism will entitle them to their rightful place in the UN Security Council.

 

Conclusion

The global climate policy must evolve to reflect the needs and rights of the Global South, ensuring fairness and justice. The current G7-dominated system is inadequate, and a new approach led by BRICS, focusing on shared responsibility, equitable emissions reductions, and targeted financial support for vulnerable nations, is essential for sustainable global progress.