Editorial 1: On the Collegium question: The Supreme Court must engage with other arms of the state
Context: Abhinav Kumar writes, The basic question of whether the Collegium system is essential to preserving the basic structure of the Constitution cannot be answered by the Supreme Court alone through a judicial verdict. It requires a wider conversation
Collegium system
- Collegium system is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.
- The Supreme Court Collegium is headed by the Chief Justice of India and comprises four other senior most Judges of the court.
- The High Court collegium is led by the incumbent Chief Justice and two other senior most judges of that court.
Issues in the Collegium system
- The process for appointments and transfers of judges of the Supreme Court and high courts is one of the system’s dark areas.
- The complete exclusion of the executive from the judicial appointment process created a system where a few judges appoint the rest in complete secrecy.
- There is no specific criteria for testing the candidate for the post of Chief Justice of India which leads to wide scope for nepotism and favouritism.
- It is a close door mechanism as there are no official minutes of collegium proceedings.
- Collegium has not been able to prevent the increasing cases of vacancies of judges and cases in courts.
Basic Structure doctrine
- The basic structure doctrine in constitutional jurisprudence evolved over time in a process that culminated with the Kesavananda Bharati verdict in 1973. It has been reiterated and expanded upon in various judgments since then.
- Its central feature continues to be the view that the power of Parliament to amend the Constitution under Article 368 is not absolute and it shall always be subject to the power of judicial review vested in the Supreme Court, especially under Articles 32 and 142, as well as to the restrictions imposed by Article 13 of the Constitution.
- The power of judicial review is explicitly established in almost all constitutional democracies around the world. Even the basic structure doctrine is now acknowledged by many countries
Basic Structure doctrine and Collegium System
- However, the courts in India added a twist in the tale in 1993 by creating the Collegium system of appointments to the higher judiciary.
- The underlying argument was a novel take on the basic structure doctrine. The argument ran as follows. Protecting the basic structure was essential to preserving the rule of law under the Constitution.
- Protecting the power of judicial review was essential for preserving the basic structure doctrine. The power of judicial review could not be meaningfully exercised without an independent judiciary.
- The Collegium system was essential to preserving the independence of the judiciary. Hence, the Collegium system was required for no lesser purpose than protecting the Constitution of India.
Current Scenario
- As things stand today, especially after the 2015 judgment, the Collegium system is the law of the land. And unless the Supreme Court itself is persuaded otherwise, it is likely to remain so.
- However, 30 years is a long enough period to evaluate its impact on the composition and performance of the Indian judiciary, the quality of justice delivery on the civil and criminal side, and its larger impact on democracy and civil society.
- Perhaps what is required is a comprehensive survey of all the above-mentioned parameters by the Ministry of Law and Justice.
Conclusion
- The basic question of whether the Collegium system is essential to preserving the basic structure of the Constitution cannot be answered by the Supreme Court alone through a judicial verdict. It requires a wider conversation.
- There’s no doubt that the credibility of the Supreme Court as the defender of our fundamental freedoms and protector of constitutional values would be enormously enhanced if it constructively engaged with other branches of the state on the above issues.
- After all, along with judicial review, the separation of powers and checks and balances are also important features of the basic structure of the Constitution as elucidated by the Supreme Court.
Editoriak 2: Has the world dodged recession? Reasons for hope, caution
Context: There is a growing sense that a global recession may not happen, and that some of the biggest economies, such as the US and the Euro-zone countries, may achieve a soft-landing.
What is Recession?
- A recession is a significant, widespread, and prolonged downturn in economic activity. A common rule of thumb is that two consecutive quarters of negative gross domestic product (GDP) growth mean recession, although more complex formulas are also used.
- A recession is a significant, pervasive, and persistent decline in economic activity. Economists measure a recession's length from the prior expansion's peak to the downturn's trough. Recessions may last as little as a few months, but the economy may not recover to its former peak for years.
- An inverted yield curve has predicted the last 10 recessions, although some predicted recessions never materialized.
Current World Scenario
- Last year was terrible for the global economy. By the time 2022 came to a close, observers across the world believed that several key economies would witness a recession in 2023.
- But by the time the most influential policymakers, CEOs and economists met at the World Economic Forum (WEF) in Davos earlier this month, the mood had started to shift.
- There is a growing sense that a global recession may not happen, and that some of the biggest economies, such as the US and the Euro-zone countries, may achieve a soft-landing.
What Changed?
- What explains this contradiction was the answer by IMF’s Managing Director Kristalina Georgieva in the same discussion. “It (global economic growth outlook) is less bad than we feared two months ago but ‘less bad’ doesn’t quite mean ‘good’.” She further listed four factors that led to such an assessment.
- First, the world over, inflation has fallen off its historic peak and is consistently trending downwards.
- Two, China, the world’s second largest economy, has seen its growth prospects improve. In 2022, thanks to its Zero Covid policy, China’s growth rate fell below the global average growth rate — the first time in 40 years. However, with China opening to business, its economy is expected to rebound and, in the process, boost global growth.
- Three, it was widely expected that as central banks raised interest rates, unemployment levels would rise in the developed countries. But this has not happened to the extent policymakers and economists apprehended. In fact, the developed countries continue to enjoy historically low levels of unemployment.
- The fourth and closely related factor is the sustained consumer demand. Georgieva said the strength of labour markets (read low levels of unemployment) in countries such as the US has kept consumer demand robust.
Will the world avoid recession?
- Georgieva outlined three key factors that could deflate the fledgling confidence.
- One, it is unclear whether inflation will continue to trend downwards. For instance, China’s likely recovery, being seen as a positive factor, could also imply higher prices for crude oil and gas, pushing up inflation across the board. Energy prices remain high as it is.
- Two, while labour markets have held up well until now, given the fact that central banks are not yet done with raising rates, it is quite possible that higher interest rates will finally begin to bite and lead to more unemployment. Dealing with the cost of living crisis in developed countries with historically low unemployment is one thing, but if there are widespread job losses, consumption will fall rapidly and with it, economic growth.
- Lastly, the fact is that the Ukraine conflict is still unresolved and as such, continues to pose a risk for investors across the world.