COLLEGIUM CONTROVERSY AND CONSTITUENT ASSEMBLY REPORT : WITHOUT PREJUDICE ANALYSIS
Is NJAC a violation of Article 368 or violates the theory of pith and substance? To understand we must go back to the root of the matter. Brief History This issue is neither constitutional nor legal. The issue is to decide the procedure for appointment of Judges in High Courts namely the High Court and Supreme Court. As such the debate on the procedure to appoint judges to higher courts was debated forcefully by several leading giant members of the Constituent Assembly. But no consensus was drawn. The details we shall see here are below. But before that somewhere in the year 1991 by order and Judgement of the Supreme Court, a system was designed by the name Collegium. In Collegium 6-8 Judges would consider candidates for the office of the higher court judges which includes the Chief Justice of State and Supreme Court Collegium members. Who selects the candidates and forwards the names to the Law Ministry for scanning intelligence background. There is no other role of the Government in the selection process. The President in the course gives his assent and notifies. Is this a correct system that was dreamt by the makers of our Constitution? Or is hit by pith and substance? Link to read Judgement : https://indiankanoon.org/doc/753224/ Current scenario and the allegations: Over a period of time, this system was allegedly affected by nepotism and it is alleged that it has created a monopoly. There were news reports as well as reports of a senior lawyer at the bar that 50% of the Judges are relatives of the ex-Judges. In the meantime, the Government enacted a law called National Judicial Appointments Commission Act, 2014 ( NJAC ) which was abrogated and declared ultra-vires by the Supreme Court. This resulted in the continuity of the Collegium System. In its logical and practical argument that the Judiciary, it’s argued that the participation of politicians in the selection process may vitiate the independence of the judiciary. This danger was also visualized by the late Dr. B.R. Ambedkar. For the said reason though amendments were moved to adopt the American method of appointment of judges to the higher courts same were withdrawn by respective Constituent Assembly members. However, the late Dr. Ambedkar could not have thought of the situation persisting today about the collegium system which has allegedly resulted in the monopoly of a few families. Here is the link: https://timesofindia.indiatimes.com/india/govt-gives-collegium-proof-of-nepotism-in-picks-for-hc-judges/articleshow/65220425.cms https://www.hindustantimes.com/india/50-hc-judges-related-to-senior-judicial-members-report/story-S8RP2Ir9cEuIN4NewFnvML.html With this background let us see the history of this issue and why it did not reach finality during the finalization of the Constitution of India. The Government of India Act, 1919 provided in Section 101 for the Constitution of High Courts; and the appointment of the Chief Justice and the permanent Judges were in the absolute discretion of the Crown, subject only to the prescribed conditions of eligibility. The tenure of their office, according to Section 102, was dependent entirely on the Crown’s pleasure. Under the Government of India, Act, 1935, appointments of Judges of the Federal Court and the High Courts were at the absolute discretion of the Crown or, in other words, […]
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EMERGENCY ARBITRATION, WHETHER VALID IN INDIA UNDER ARBITRATION ACT,1996?
This interesting issue came up before Delhi High Court in Amazon.Com Nv Investment vs Future Coupons Private Limited & ors passed on 18 March, 2021 Three important questions arose for consideration before Delhi High Court :- What is the legal status of an Emergency Arbitrator i.e. whether the Emergency Arbitrator is an arbitrator and whether the interim order of the Emergency Arbitrator is an order under Section 17 (1) and is enforceable under 17(2) of the Arbitration and Conciliation Act? Observed: Section 2(8) of the Indian Arbitration Act 1996 expressly provides that where Part I of the Indian Arbitration Act 1996 refers to an ―agreement of the parties‖, such agreement shall include the arbitration rules referred to in the parties’ agreement. In this way, the Indian Arbitration Act 1996 provides that any arbitration rules agreed to by the parties are incorporated into the arbitration agreement. Unless expressly excluded, it is trite that the parties cannot resile from the terms of their arbitration agreement, including their agreement to allow either party to request the appointment of an emergency arbitrator. Further, Section 17 of the Indian Arbitration Act 1996, which empowers an arbitral tribunal to grant interim reliefs, does not preclude or intimate that parties cannot agree to institutional rules which allow recourse to emergency arbitration. In the absence of a mandatory prohibition contained in the Indian Arbitration Act 1996 or public policy constraints, the parties may agree to any arbitral procedure. Whether the Emergency Arbitrator misapplied the Group of Companies doctrine which applies only to proceedings under Section 8 of the Arbitration and Conciliation Act? Held The Indian Arbitration Act 1996, does not preclude parties from agreeing to arbitrate under institutional rules that allow either party to request appropriate reliefs from an emergency arbitrator. The Respondents’ references to the 246th Law Commission Report do not assist its submissions on this issue in a meaningful way. It is just as plausible that Parliament, in its wisdom, did not consider it necessary to amend the Indian Arbitration Act 1996 to make a specific reference to emergency arbitrators because it was legally unnecessary – that is to say, it might have been an instance of the Law Commission making a suggestion to gild the lily. There was no need for statutory recognition if the courts and case law did not find this a problematic issue. Indeed, given the prevalence, even then, in the employment and use of this useful procedure internationally, this is likely to have been the case. It is also noteworthy that the power to appoint an emergency arbitrator is currently recognized in a number of domestic Indian arbitration institution rules, including (a) the Delhi International Arbitration Centre of the Delhi High Court; (b) the Mumbai Centre for International Arbitration; and (c) the Madras High Court Arbitration Centre, all of which include, under their rules, provisions for emergency arbitration and set out the appointment process, applicable procedures, and timing as well as the powers of an emergency arbitrator. Emergency Arbitrators are recognised under the Indian Arbitration Framework The Claimant rightly asserts that the Respondents’ insistence that the notion of emergency arbitration is […]
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