Corporate structures to carry out Corporate Social Responsibility (CSR)

Abstract

Corporate Social Responsibility (CSR) has become an increasingly important aspect of corporate strategy in recent years. Companies are expected to not only generate profits but also act as responsible citizens by contributing to society and the environment. To carry out CSR, companies can adopt various corporate structures.

One of the most common structures is the establishment of a separate CSR department, which is responsible for developing and implementing CSR policies and initiatives. This department works closely with other departments, such as marketing, human resources, and supply chain, to ensure that the company’s CSR activities align with its business goals.

Another approach is to integrate CSR into the company’s core strategy and operations. This can be done by incorporating CSR goals and metrics into performance evaluations and linking executive compensation to CSR outcomes. This approach emphasizes the importance of CSR and encourages all employees to contribute to achieving the company’s CSR objectives.

Companies can also partner with external organizations, such as non-governmental organizations (NGOs), to carry out CSR activities. These partnerships can help companies leverage the expertise and resources of NGOs to achieve their CSR goals.

Finally, some companies choose to adopt a hybrid model that combines different structures. For example, they may establish a CSR department while also integrating CSR goals into their core strategy and partnering with external organizations.

In conclusion, companies have various corporate structures to carry out CSR. The key is to choose a structure that aligns with the company’s business goals, culture, and values, and enables it to make a meaningful contribution to society and the environment.¹

Keywords – Corporate Social Responsibility (CSR), business goals, CSR goals and metrics, non-governmental organizations (NGOs), hybrid model

Introduction

Corporate Social Responsibility (CSR) has become a crucial aspect of modern corporate strategy. It refers to a company’s responsibility to act in ways that benefit society and the environment while also generating profits. To carry out CSR, companies can adopt various corporate structures that help them achieve their CSR objectives. These structures can range from establishing a separate CSR department to integrating CSR into the company’s core strategy and operations, partnering with external organizations, and adopting hybrid models.²

Choosing the appropriate CSR structure is crucial for a company to successfully achieve its CSR goals. This article will explore different corporate structures that companies can adopt to carry out CSR effectively. It will examine the advantages and disadvantages of each structure, key considerations for selecting the right structure, and case studies of successful CSR structures. Additionally, the article will discuss the challenges of implementing CSR structures, measuring the impact of CSR, legal and regulatory frameworks for CSR structures, and balancing profit and social responsibility in CSR structures. Overall, this article aims to provide insights into how companies can adopt effective corporate structures to carry out CSR and make a positive impact on society and the environment.

Importance of Corporate Social Responsibility

Corporate Social Responsibility (CSR) has become increasingly important for companies in recent years. The following are some reasons why CSR is essential:³

1. Building Trust and Reputation: CSR initiatives can help companies build trust and goodwill with their stakeholders, including customers, employees, investors, and communities. Companies that prioritize CSR are often perceived as more trustworthy and reputable, which can lead to increased loyalty and positive word-of-mouth.
2. Enhancing Brand Value: CSR can enhance a company’s brand value and differentiation in the marketplace. Consumers are increasingly interested in purchasing products and services from socially responsible companies, and CSR initiatives can differentiate a company from its competitors.
3. Attracting and Retaining Talent: CSR initiatives can attract and retain talented employees who are passionate about making a positive impact. Companies that prioritize CSR often have a more engaged and motivated workforce, which can lead to higher productivity and employee satisfaction.
4. Mitigating Risk: CSR initiatives can help companies mitigate risks related to environmental, social, and governance (ESG) issues. Companies that prioritize CSR are better equipped to anticipate and address potential risks, which can lead to improved financial performance and long-term sustainability.
5. Contributing to Society and the Environment: CSR initiatives enable companies to make a positive impact on society and the environment. By addressing social and environmental issues, companies can contribute to sustainable development and help build a better world for future generations.

In conclusion, CSR is essential for companies that want to build trust and reputation, enhance brand value, attract and retain talent, mitigate risk, and contribute to society and the environment. Companies that prioritize CSR are often better positioned for long-term success and sustainability.

Different Corporate Structures for CSR

There are several different corporate structures that companies can adopt to carry out CSR effectively. The following are some of the most common structures:⁴

1. Separate CSR Department: Some companies establish a separate CSR department to oversee and manage all CSR initiatives. This structure can provide a dedicated focus on CSR, which can lead to more strategic and effective initiatives.
2. Integrated CSR: Companies can integrate CSR into their core strategy and operations, making it a part of their day-to-day business. This structure can help ensure that CSR is fully aligned with the company’s business goals and values.
3. Hybrid Model: Companies can adopt a hybrid model that combines elements of both separate CSR departments and integrated CSR. This structure can provide the benefits of both structures, allowing for a dedicated focus on CSR while also integrating it into the company’s core strategy and operations.
4. External Partnerships: Companies can partner with external organizations, such as non-profits or NGOs, to carry out CSR initiatives. This structure can provide expertise, resources, and access to new markets, allowing companies to make a more significant impact.
5. Employee-Led CSR: Some companies empower their employees to lead CSR initiatives. This structure can help build employee engagement and foster a culture of social responsibility within the company.
6. Supply Chain CSR: Companies can focus on CSR initiatives throughout their supply chain, from sourcing raw materials to delivering products and services. This structure can help ensure that the company’s entire value chain is aligned with CSR goals.

Each corporate structure has its own advantages and disadvantages, and the choice of structure depends on the company’s business goals, culture, and values. Companies should carefully consider their options and choose the structure that best fits their needs and resources.

Establishing a Separate CSR Department

Establishing a separate CSR department is a common corporate structure for carrying out CSR initiatives. The following are some of the advantages and disadvantages of this structure:

Advantages:

Dedicated Focus: A separate CSR department provides a dedicated focus on CSR initiatives. This can lead to more strategic and effective initiatives that align with the company’s values and goals.

• Centralized Coordination: A separate department can centralize the coordination and management of CSR initiatives, ensuring that resources are allocated efficiently and effectively.
• Specialized Expertise: A separate CSR department can attract and retain specialized expertise in CSR, including knowledge of best practices, industry trends, and stakeholder engagement.
• Enhanced Reputation: Companies that establish a separate CSR department are often perceived as more committed to CSR and have a more positive reputation with stakeholders.

Disadvantages:

• Resource Constraints: Establishing a separate CSR department can be costly, especially for small and medium-sized enterprises (SMEs) that may have limited resources.
• Siloed Approach: A separate CSR department may operate in isolation from other departments within the company, which can lead to a siloed approach to CSR.
• Limited Integration: CSR initiatives may not be fully integrated into the company’s core strategy and operations, which can limit the impact of CSR initiatives.
• Lack of Accountability: CSR departments may lack accountability for achieving tangible results, which can lead to a lack of alignment with the company’s overall goals and objectives.

To establish a separate CSR department, companies should consider factors such as the size of the company, the resources available, and the company’s culture and values. Companies should also ensure that the CSR department is fully aligned with the company’s overall strategy and operations to maximize the impact of CSR initiatives.⁵

Hybrid Models for CSR

A hybrid model is another corporate structure that companies can adopt to carry out CSR initiatives. This model combines elements of both a separate CSR department and integrated CSR. The following are some advantages and disadvantages of a hybrid model:

Advantages:

• Balanced Approach: A hybrid model can provide a balanced approach to CSR initiatives. A separate CSR department can focus on developing and implementing CSR initiatives, while integrated CSR ensures that CSR is fully aligned with the company’s core strategy and operations.
• Dedicated Focus: A separate CSR department provides a dedicated focus on CSR initiatives, ensuring that CSR is not neglected in the day-to-day operations of the company.
• Integration: By integrating CSR initiatives into the company’s core strategy and operations, a hybrid model can maximize the impact of CSR initiatives and ensure that CSR is fully aligned with the company’s values and goals.
• Flexibility: A hybrid model can provide flexibility to adapt to changes in the company’s business environment or CSR priorities.⁶

Disadvantages:

• Resource Constraints: A hybrid model can be costly to implement and manage, especially for small and medium-sized enterprises (SMEs) that may have limited resources.
• Complex Coordination: The coordination of CSR initiatives between the separate CSR department and the rest of the company can be complex and require additional resources.
• Siloed Approach: The separate CSR department may operate in isolation from other departments within the company, which can lead to a siloed approach to CSR.
• Limited Accountability: The hybrid model may lack accountability for achieving tangible results, which can lead to a lack of alignment with the company’s overall goals and objectives.

To adopt a hybrid model, companies should consider factors such as the size of the company, the resources available, and the company’s culture and values. The company should also ensure that the CSR department is fully integrated with the company’s core strategy and operations to maximize the impact of CSR initiatives.

Key Considerations for Choosing a CSR Structure

Choosing the appropriate CSR structure requires careful consideration of various factors, including the company’s size, resources, culture, and goals. The following are some key considerations for choosing a CSR structure:

1. Company Size and Resources: The size of the company and the resources available will significantly impact the type of CSR structure that can be implemented. Small and medium-sized enterprises (SMEs) may have limited resources to establish a separate CSR department, while larger companies may have the financial means to support a dedicated CSR department.
2. Company Culture and Values: The company’s culture and values play an essential role in choosing a CSR structure. Companies that prioritize social and environmental issues may prefer to adopt a separate CSR department or a hybrid model, while those that prefer to integrate CSR initiatives into their core operations may choose to adopt an integrated CSR model.
3. CSR Goals and Objectives: The company’s CSR goals and objectives should be taken into account when choosing a CSR structure. The structure should be designed to achieve the company’s specific CSR objectives, whether it is to enhance the company’s reputation, increase stakeholder engagement, or address social or environmental issues.
4. Stakeholder Engagement: The engagement of stakeholders, including customers, employees, and investors, is a critical consideration in choosing a CSR structure. The structure should be designed to encourage stakeholder participation in CSR initiatives and address their concerns and expectations.
5. Legal and Regulatory Requirements: Companies must also consider legal and regulatory requirements related to CSR when choosing a CSR structure. In some cases, legal requirements may mandate the establishment of a separate CSR department or the integration of CSR into the company’s core strategy and operations.
6. Impact Assessment: Companies should also consider the impact of the chosen CSR structure on the company’s overall business operations and the effectiveness of CSR initiatives. The structure should be designed to maximize the impact of CSR initiatives while minimizing any negative impacts on the company’s operations.

In conclusion, companies must carefully consider various factors when choosing a CSR structure. The chosen structure should be designed to align with the company’s culture, values, goals, and resources, while also considering legal and regulatory requirements and stakeholder expectations.⁷

Challenges of Implementing CSR Structures

Implementing CSR structures can be challenging for companies, particularly those that are new to CSR or have limited resources. Some of the key challenges include:

1. Lack of Resources: Implementing a CSR structure requires significant financial and human resources. Small and medium-sized enterprises (SMEs) may struggle to establish a separate CSR department or implement a comprehensive CSR program due to limited resources.
2. Limited Employee Engagement: Employee engagement is crucial for the success of CSR initiatives. However, employees may not fully understand the importance of CSR or may be resistant to change, which can hinder the implementation of CSR structures.
3. Complex Coordination: The coordination of CSR initiatives between different departments within the company can be complex and require additional resources. This is particularly true for hybrid models that require coordination between a separate CSR department and the rest of the company.
4. Lack of Accountability: CSR initiatives may lack accountability for achieving tangible results, which can lead to a lack of alignment with the company’s overall goals and objectives.
5. Resistance from Management: The implementation of CSR structures may face resistance from upper management, particularly if they do not fully understand the importance of CSR or view it as an additional cost rather than an investment.
6. External Challenges: Companies may also face external challenges in implementing CSR structures, including changing regulations, stakeholder expectations, and public scrutiny.

To overcome these challenges, companies should develop a comprehensive CSR strategy that aligns with the company’s culture, values, goals, and resources. The strategy should be communicated effectively to all employees, and the company should provide adequate resources and training to support the implementation of the CSR structure. Companies should also regularly evaluate the effectiveness of their CSR initiatives and adjust as necessary to ensure they are achieving their intended goals.⁸

Future Trends and Directions in CSR Structures

Corporate social responsibility (CSR) has been growing in importance over the past decade, and it is expected to continue to be a key focus for companies in the future. Here are some future trends and directions in CSR structures:

1. ESG Integration: Environmental, social, and governance (ESG) factors are becoming increasingly important for investors, and companies are recognizing the need to integrate ESG considerations into their business operations. As a result, CSR structures will need to incorporate ESG factors into their frameworks to meet the demands of investors and other stakeholders.
2. Stakeholder Engagement: Stakeholder engagement will continue to be a key focus for CSR structures, as companies recognize the importance of building relationships with customers, employees, and other stakeholders. Companies will need to incorporate stakeholder engagement into their CSR structures to ensure they are meeting the needs of their stakeholders and building trust and credibility with them.
3. Digitalization: Digitalization is transforming the business landscape, and CSR structures will need to adapt to this trend. Companies will need to use digital technologies to monitor their CSR initiatives, collect data, and engage with stakeholders in new and innovative ways.
4. Social Impact: Social impact will continue to be a key focus for CSR structures, as companies recognize the importance of addressing social issues and making a positive impact on society. Companies will need to develop CSR initiatives that focus on social impact, such as addressing income inequality, promoting diversity and inclusion, and supporting education and healthcare initiatives.
5. Collaboration: Collaboration will become increasingly important for CSR structures, as companies recognize the need to work together to address complex social and environmental issues. Companies will need to collaborate with other organizations, including governments, NGOs, and other businesses, to develop effective CSR initiatives and drive positive change.⁹

Overall, the future of CSR structures will require companies to be more integrated, transparent, and collaborative in their approach to CSR. By incorporating ESG factors, focusing on stakeholder engagement, using digital technologies, prioritizing social impact, and collaborating with other organizations, companies can ensure they are making a positive impact and contributing to a more sustainable and equitable world.

Legal and Regulatory Frameworks for CSR Structures

Legal and regulatory frameworks for CSR structures vary from country to country. However, there are some common elements that are found in many legal and regulatory frameworks. Here are some key considerations for legal and regulatory frameworks for CSR structures:

1. Mandatory vs. Voluntary: In some countries, CSR activities are mandatory, and companies are required by law to report on their CSR initiatives. In other countries, CSR activities are voluntary, and companies are encouraged to adopt CSR initiatives as part of their business operations.
2. Disclosure and Reporting: Many legal and regulatory frameworks require companies to disclose information about their CSR activities, including their goals, initiatives, and outcomes. This information is often reported in annual reports or on company websites.
3. Liability: Some legal and regulatory frameworks establish liability for companies that engage in activities that harm the environment or society. This liability may include fines, penalties, or other legal sanctions.
4. Incentives: Some legal and regulatory frameworks provide incentives for companies that engage in CSR activities. For example, some countries offer tax breaks or other financial incentives for companies that invest in renewable energy or engage in other sustainable business practices.
5. Standards and Guidelines: Many legal and regulatory frameworks establish standards and guidelines for CSR activities. These standards and guidelines may be developed by governments, NGOs, or other organizations and may cover a range of topics, such as human rights, labor practices, environmental protection, and anti-corruption.

Overall, legal and regulatory frameworks for CSR structures can play an important role in promoting responsible business practices and driving positive social and environmental outcomes. By establishing mandatory or voluntary CSR activities, requiring disclosure and reporting, establishing liability, providing incentives, and establishing standards and guidelines, legal and regulatory frameworks can help to create a more sustainable and equitable world.¹⁰

Conclusion

In conclusion, corporate social responsibility (CSR) structures are essential for companies looking to make a positive impact on society and the environment. These structures can take various forms, including establishing a separate CSR department, adopting a hybrid model, or integrating CSR into the company’s overall business strategy.

While implementing CSR structures can present challenges, including balancing profit and social responsibility and measuring impact, companies can overcome these challenges by engaging with stakeholders, collaborating with other organizations, establishing ethical leadership practices, and prioritizing metrics and evaluation.

Moreover, legal and regulatory frameworks play a crucial role in promoting responsible business practices and driving positive social and environmental outcomes. These frameworks can establish mandatory or voluntary CSR activities, require disclosure and reporting, establish liability, provide incentives, and establish standards and guidelines.

Overall, implementing effective CSR structures can help companies create long-term value for their stakeholders and society as a whole, while also maintaining financial viability and competitiveness in the marketplace. By embracing CSR, companies can demonstrate their commitment to responsible business practices and make a positive impact on the world.¹¹

1 Investopedia, https://www.investopedia.com/terms/c/corp-social-responsibility.asp (last visited Mar. 24, 2023)

2 Business News Daily, https://www.businessnewsdaily.com/4679-corporate-social-responsibility.html (last visited Mar. 24, 2023)

3 Business News Daily, https://www.businessnewsdaily.com/4679-corporate-social-responsibility.html (last visited Mar. 24, 2023)

4 PLOS, https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0246384 (last visited Mar. 24, 2023)

5 Investopedia, https://www.investopedia.com/terms/c/corp-social-responsibility.asp (last visited Mar. 24, 2023)

6 Investopedia, https://www.investopedia.com/terms/c/corp-social-responsibility.asp (last visited Mar. 24, 2023)

7 Investopedia, https://www.investopedia.com/terms/c/corp-social-responsibility.asp (last visited Mar. 24, 2023)

8 Investopedia, https://www.investopedia.com/terms/c/corp-social-responsibility.asp (last visited Mar. 24, 2023)

9 Investopedia, https://www.investopedia.com/terms/c/corp-social-responsibility.asp (last visited Mar. 24, 2023)

10 Investopedia, https://www.investopedia.com/terms/c/corp-social-responsibility.asp (last visited Mar. 24, 2023)

11 Investopedia, https://www.investopedia.com/terms/c/corp-social-responsibility.asp (last visited Mar. 24, 2023)

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The Impact of Globalization on Collective Bargaining and Negotiation in International Labour Law

Abstract

Globalization has brought about significant changes to the global economy, including the way in which work is organized and conducted. While it has created new economic opportunities, globalization has also had significant impacts on labour rights and collective bargaining, and has led to increased exploitation and inequality for vulnerable workers.

This paper examines the historical context of globalization and labour law, and explores the various theories on the impact of globalization on labour rights and collective bargaining. It also analyses the legal frameworks and approaches to collective bargaining and negotiation in different countries and industries, evaluating the strengths and weaknesses of each system.

Finally, the paper explores the implications for labour law and social justice, and offers recommendations for legal and policy changes to ensure fair labour practices in the global economy. The paper concludes with a discussion of areas for further research, including the role of technology, comparative analysis of legal frameworks, intersectional analysis, and longitudinal studies.

The impact of globalization on labour law and collective bargaining is a complex and multifaceted issue that has generated significant scholarly debate. While globalization has brought increased economic integration and growth, it has also created challenges for workers and labour regulations, particularly in developing countries. Scholars have examined the impact of globalization on labour standards, workers’ rights, and collective bargaining, and have explored the legal frameworks and policy changes necessary to ensure fair labour practices in the global economy.

This literature review examines existing studies on the topic, discussing the historical context of globalization and labour law, the theoretical debates over the impact of globalization on labour rights and collective bargaining, and the legal frameworks and approaches to labour regulation in different countries. It also highlights examples of how globalization has affected collective bargaining and negotiation in different countries and industries. The review evaluates the strengths and weaknesses of each system and provides recommendations for legal and policy changes to ensure fair labour practices in the global economy.

Overall, this literature review highlights the importance of promoting social justice and human rights in the context of globalization, and identifies areas for further research. It argues that labour law and collective bargaining play a critical role in protecting workers’ rights and promoting workplace democracy, and that legal frameworks must be adapted to address the challenges of globalization and the changing nature of work.

The Meaning of Globalization

Globalization refers to the increasing interconnectedness and integration of economies, societies, and cultures around the world. It is driven by advances in technology, communication, and transportation that have made it easier and faster to move goods, capital, and people across borders. Globalization has transformed the way we live and work, creating new opportunities for trade, investment, and cultural exchange, but also posing significant challenges and risks.

At its core, globalization is a complex and multifaceted phenomenon that affects various aspects of our lives in different ways. Economically, it has led to the growth of multinational corporations, the expansion of international trade, and the emergence of new global markets. Socially, it has facilitated the spread of ideas, values, and cultural practices across borders, and has created new opportunities for cross-cultural exchange and collaboration. Politically, it has challenged traditional concepts of national sovereignty and governance, and has raised new questions about global cooperation and governance.

However, globalization has also been criticized for exacerbating inequality, promoting exploitation of workers and resources, and undermining local cultures and traditions. These criticisms have led to debates about the proper role of global governance in regulating economic activity, protecting human rights and the environment, and promoting social and economic justice.

The meaning of collective bargaining and negotiation

Collective bargaining refers to the process by which workers, through their chosen representatives, negotiate with employers over the terms and conditions of their employment. This process typically involves the exchange of proposals, counterproposals, and concessions, with the goal of reaching a mutually acceptable agreement. Collective bargaining can cover a wide range of issues, including wages, benefits, working hours, and job security.

Negotiation, on the other hand, is a broader term that refers to the process of reaching an agreement through communication and compromise. Negotiation can take place between individuals or groups with differing interests, and can occur in various settings, including labour-management relations, business transactions, and international diplomacy.

In the context of labour relations, negotiation often involves collective bargaining between unions and employers, but it can also occur at the individual level between employees and managers. The key elements of negotiation include identifying interests, developing options, assessing alternatives, and reaching an agreement that meets the needs and priorities of all parties involved.

Importance of the impact of globalization on collective bargaining and negotiation in international labour law.

The impact of globalization on collective bargaining and negotiation in international labour law is an important topic for several reasons:

Labour rights: Collective bargaining and negotiation are essential tools for protecting the rights of workers and ensuring fair wages, benefits, and working conditions. However, the increasing globalization of the economy has made it more difficult for workers to exercise these rights, as multinational corporations often have more bargaining power than individual workers or even national governments. (Arthur, 1991)

Social justice: Labour rights are closely linked to social justice, as they affect the well-being and dignity of workers and their families. The impact of globalization on collective bargaining and negotiation can have significant social and economic consequences for workers and their communities, especially in developing countries.

Legal framework: The legal framework for collective bargaining and negotiation varies widely across different countries and regions. Understanding how globalization affects this framework can help policymakers and advocates develop more effective legal and policy solutions to protect workers’ rights and promote social justice.

Future of work: As the global economy continues to evolve, the role of collective bargaining and negotiation in labour relations will likely become even more important. By studying the impact of globalization on these tools, we can gain insights into how they can be adapted and strengthened to meet the challenges of the future of work. (Mclaren, 2017)

Historical context of globalization and labour law

The historical context of globalization and labour law is complex and multifaceted, with roots that date back to the Industrial Revolution of the 18th and 19th centuries. During this time, the growth of factory-based production and the rise of capitalist economies led to significant changes in the nature of work and employment. Workers were often subjected to harsh working conditions, long hours, and low wages, and had few legal protections or rights.

As the 20th century began, labour movements around the world began to organize and advocate for better working conditions and rights. This led to the creation of labour laws and regulations in many countries, which aimed to protect workers and ensure fair treatment. These laws established standards for wages, working hours, safety, and other important aspects of employment.

However, the process of globalization in the latter half of the 20th century and early 21st century has posed significant challenges to labour law and workers’ rights. Globalization has led to increased competition among countries and companies, and has facilitated the movement of capital and jobs across borders. This has created new challenges for labour law, which must navigate the complexities of cross-border employment relationships and multinational corporations.

The globalization of trade and investment has also led to the creation of international labour standards and regulations. Organizations such as the International Labour Organization (ILO) have played a key role in developing and promoting these standards, which aim to protect workers’ rights and ensure fair treatment in the global economy.

However, the effectiveness of these international labour standards and regulations is often limited by the lack of enforcement mechanisms and the resistance of some countries and corporations to abide by them. This has led to ongoing debates and challenges around the role of labour law and regulation in the global economy, and the need for greater cooperation and coordination among governments, businesses, and labour organizations to protect workers’ rights and ensure fair treatment in the global labour market.

Theories on the impact of globalization on labour rights and collective bargaining

There are a number of different theories on the impact of globalization on labour rights and collective bargaining. Some theorists argue that globalization has had a negative impact on labour rights and collective bargaining, while others suggest that globalization has had a more positive impact.

One theory that suggests a negative impact of globalization on labour rights and collective bargaining is the race-to-the-bottom theory. This theory argues that globalization has led to increased competition among countries and companies, and has facilitated the movement of capital and jobs to countries with lower labour standards and wages. This has created a “race to the bottom” in which countries and companies are forced to lower labour standards and wages in order to remain competitive. As a result, workers in many countries have seen their wages and working conditions decline and have had limited opportunities to bargain collectively or exercise their labour rights. (Novitz, 2016)

Another theory that suggests a negative impact of globalization on labour rights and collective bargaining is the “global commodity chain” theory. This theory argues that the globalization of production has led to the fragmentation of production processes across borders, with different parts of the production process located in different countries. This has made it difficult for workers to organize and bargain collectively, as their employers are often located in different countries or are part of complex global supply chains. As a result, workers may face significant challenges in exercising their labour rights and achieving better working conditions. (Lee, 2009)

However, there are also theories that suggest a more positive impact of globalization on labour rights and collective bargaining. One such theory is the “global governance” theory, which argues that globalization has led to the creation of international norms and regulations that promote labour rights and collective bargaining. For example, organizations like the International Labour Organization (ILO) have played a key role in developing and promoting international labour standards and regulations, which aim to protect workers’ rights and ensure fair treatment in the global economy. This has led to greater recognition of labour rights and collective bargaining as important components of global governance and has helped to promote better working conditions and labour standards in many countries. (Kucera, 2017)

Overall, the impact of globalization on labour rights and collective bargaining is complex and multifaceted. While some theorists argue that globalization has had a negative impact, others suggest that it has had a more positive impact through the creation of international norms and regulations that promote labour rights and collective bargaining.

Existing studies on the topic

There have been numerous studies on the impact of globalization on labour rights and collective bargaining, exploring a wide range of issues and perspectives. Some of the key findings and themes from existing studies include:

The negative impact of globalization on labour standards and wages. Many studies have found that globalization has led to a decline in labour standards and wages in many countries, particularly in industries that are subject to global competition. For example, a study by the International Labour Organization found that workers in many developing countries have experienced declining wages and worsening working conditions as a result of globalization. (International Labour Organization, n.d.)

The role of international labour standards and regulations in promoting labour rights and collective bargaining. Many studies have also explored the effectiveness of international labour standards and regulations in promoting labour rights and collective bargaining. Some studies have found that these standards and regulations have been effective in promoting better working conditions and labour standards in many countries, particularly in industries that are subject to global supply chains. However, other studies have highlighted the limitations of these standards and the challenges of enforcing them in practice. (Lee, 2009)

The importance of national labour laws and regulations. Many studies have also emphasized the importance of national labour laws and regulations in protecting workers’ rights and ensuring fair treatment in the global economy. These laws and regulations can provide important protections for workers, such as minimum wage standards, working hour limits, and protections against discrimination and harassment. However, the effectiveness of these laws and regulations can be limited by factors such as weak enforcement mechanisms and resistance from employers. (Novitz, 2016)

The role of labour unions and collective bargaining in promoting workers’ rights. Finally, many studies have explored the role of labour unions and collective bargaining in promoting workers’ rights and ensuring fair treatment in the global economy. These studies have highlighted the importance of unions and bargaining for improving wages and working conditions, particularly in industries that are subject to global competition. However, the effectiveness of unions and bargaining can be limited by factors such as weak legal protections for union organizers, anti- union policies by employers, and the fragmentation of production processes across borders. (Wilkinson, 2018)

Overall, existing studies on the impact of globalization on labour rights and collective bargaining have highlighted both the challenges and opportunities of this complex and multifaceted issue. While globalization has posed significant challenges for labour rights and

collective bargaining, there are also opportunities for promoting better working conditions and labour standards through the development and enforcement of international labour standards and regulations, as well as the strengthening of national labour laws and regulations and the role of unions and bargaining in promoting workers’ rights. (Wilkinson, 2018)

Examples of how globalization has affected collective bargaining and negotiation in different countries or industries.

Here are some examples of how globalization has affected collective bargaining and negotiation in different countries and industries:

Textile industry in Bangladesh: The textile industry in Bangladesh has experienced significant growth as a result of globalization and international trade. However, this growth has been accompanied by challenges for workers, including low wages and poor working conditions. The industry is highly fragmented and lacks strong unions, which has made it difficult for workers to negotiate better wages and working conditions. (Shukla, 2017)

Automotive industry in the United States: The automotive industry in the United States has been impacted by globalization through increased competition from foreign companies and the growth of global supply chains. As a result, many US automakers have shifted production to lower-wage countries, which has had a negative impact on collective bargaining and unionization rates. For example, the United Auto Workers (UAW) union has seen declining membership and bargaining power in recent years as a result of these challenges. (Cynthia S. Estlund, 2021)

Fast food industry in Europe: The fast food industry in Europe has been impacted by globalization through the growth of global supply chains and the increasing dominance of multinational corporations. This has made it difficult for workers to negotiate better wages and working conditions, as many fast food companies have adopted anti-union policies and resisted collective bargaining efforts. However, there have also been successful examples of unionization and collective bargaining in the fast food industry in Europe, such as the “Fast Food Forward” campaign in the UK.

Construction industry in Qatar: The construction industry in Qatar has experienced significant growth as a result of globalization and the country’s preparations for the 2022 FIFA World Cup. However, this growth has been accompanied by serious concerns about workers’ rights and working conditions, including low wages, long hours, and unsafe working conditions. Collective bargaining and unionization are limited in the construction industry in Qatar, which has made it difficult for workers to negotiate better wages and working conditions.

Electronics industry in China: The electronics industry in China has been impacted by globalization through the growth of global supply chains and the increasing dominance of multinational corporations. This has made it difficult for workers to negotiate better wages and working conditions, as many electronics companies have adopted anti-union policies and resisted collective bargaining efforts. However, there have also been successful examples of unionization and collective bargaining in the electronics industry in China, particularly in multinational companies with strong unions in their home countries. (Shukla, 2017)

These examples illustrate some of the complex and varied ways that globalization has impacted collective bargaining and negotiation in different countries and industries. While globalization has created significant challenges for workers’ rights and collective bargaining, there are also opportunities for promoting better working conditions and labour standards through the development and enforcement of international labour standards and regulations, as well as the strengthening of national labour laws and regulations and the role of unions and bargaining in promoting workers’ rights.

Analysis of the legal framework and its implications

The legal framework that governs collective bargaining and labour rights in the context of globalization is complex and multifaceted, and its implications can vary significantly depending on the specific context and country in question. In general, the legal framework consists of a combination of national labour laws and regulations, international labour standards and conventions, and trade agreements that impact labour rights and collective bargaining.

At the national level, labour laws and regulations set out the basic rights and protections for workers, including the right to form and join unions, the right to bargain collectively, and the right to strike. These laws and regulations can vary significantly between countries, and their implementation and enforcement can also vary depending on factors such as political and economic conditions, the strength of labour unions and other civil society organizations, and the level of government oversight and regulation.

At the international level, labour standards and conventions set out a common framework for promoting and protecting workers’ rights and collective bargaining. These standards and conventions are developed and promoted by organizations such as the International Labour Organization (ILO) and the United Nations, and they establish minimum standards for issues such as freedom of association, collective bargaining, child labour, and forced labour. While these standards and conventions are not legally binding in the same way as national laws and regulations, they can still have significant impact on the development of national labour laws and policies and the implementation of labour rights in practice. (International Labour Organization, n.d.)

Trade agreements can also have significant implications for labour rights and collective bargaining, as they can shape the economic conditions and regulatory framework in which workers operate. For example, many trade agreements include provisions related to labour standards and workers’ rights, such as requirements for member countries to uphold certain labour rights and protections. However, the impact of these provisions can vary depending on factors such as the level of enforcement and oversight, the strength of labour unions and other civil society organizations, and the overall economic and political context.

The implications of the legal framework for labour rights and collective bargaining can be significant, and can vary depending on factors such as the specific context and country in question. In general, a strong legal framework that upholds and protects workers’ rights and collective bargaining can help to promote better working conditions, higher wages, and greater economic and social stability. However, weak or poorly enforced labour laws and regulations,

or a lack of international standards and regulations, can lead to abuses of workers’ rights, lower wages, and greater economic and social inequality.

In conclusion, the legal framework that governs collective bargaining and labour rights in the context of globalization is complex and multifaceted, and its implications can vary significantly depending on the specific context and country in question. While a strong legal framework can help to promote better working conditions and greater economic and social stability, weak or poorly enforced labour laws and regulations can lead to abuses of workers’ rights and greater economic and social inequality.

Comparison of the legal frameworks and approaches to collective bargaining and negotiation in different countries.

The legal frameworks and approaches to collective bargaining and negotiation can vary significantly between countries, reflecting differences in political and economic systems, historical context, and cultural norms. Here are some examples of how the legal frameworks and approaches to collective bargaining and negotiation differ in different countries:

United States: In the United States, collective bargaining is governed by a combination of federal and state laws, including the National Labour Relations Act (NLRA). The NLRA establishes workers’ right to form and join unions, engage in collective bargaining, and strike. However, the legal framework for collective bargaining in the U.S. is generally weaker than in many other developed countries, and unionization rates have been declining in recent decades.

Germany: In Germany, collective bargaining is governed by a system of industry-wide collective bargaining agreements negotiated between unions and employers’ associations. These agreements set standards for wages, working conditions, and benefits that apply across entire industries. The German legal framework for collective bargaining is considered relatively strong, and unionization rates are higher than in many other developed countries.

Sweden: In Sweden, collective bargaining is also governed by industry-wide agreements negotiated between unions and employers’ associations. However, the Swedish system places a greater emphasis on cooperation between unions and employers, and the role of the state in mediating labour disputes is more prominent than in Germany. Unionization rates in Sweden are among the highest in the world.

China: In China, collective bargaining is governed by a combination of national laws and regulations, as well as local labour regulations that vary between provinces and municipalities. While workers have the right to form unions and engage in collective bargaining, in practice labour rights are often suppressed by the state, and independent unions are not allowed. Instead, unions are often controlled by the Communist Party or by management.

South Africa: In South Africa, collective bargaining is governed by the Labour Relations Act, which establishes workers’ right to form unions and engage in collective bargaining. However, the legal framework for collective bargaining in South Africa has been criticized for being too complex and for not adequately protecting workers’ rights.

These are just a few examples of the different legal frameworks and approaches to collective bargaining and negotiation in different countries. It is important to note that the legal

framework is only one factor that affects workers’ rights and collective bargaining, and that other factors such as the strength of labour unions, political and economic conditions, and cultural norms also play a significant role.

Evaluation of the strengths and weaknesses of each system

evaluation of the strengths and weaknesses of the legal frameworks and approaches to collective bargaining and negotiation in the countries I mentioned earlier:

United States:

Strengths: The NLRA provides some protections for workers’ rights to form unions and engage in collective bargaining. The U.S. system is relatively flexible, allowing for a wide range of bargaining arrangements between unions and employers.

Weaknesses: The legal framework for collective bargaining in the U.S. is relatively weak compared to other developed countries. The NLRA has been criticized for not adequately protecting workers’ rights, and for allowing employers to engage in anti-union activities with minimal consequences.

Germany:

Strengths: The German system of industry-wide collective bargaining agreements provides a solid foundation for protecting workers’ rights and ensuring fair wages and working conditions. The system is highly centralized and coordinated, which can help to reduce conflict and promote cooperation between unions and employers.

Weaknesses: The German system can be inflexible, as wages and working conditions are often determined at the industry level rather than at the individual workplace level. Some critics argue that the system places too much power in the hands of unions and employers’ associations, which can lead to an uneven distribution of bargaining power.

Sweden:

Strengths: The Swedish system of industry-wide collective bargaining agreements is highly coordinated and cooperative, with a strong emphasis on partnership between unions and employers. The system has been successful in ensuring elevated levels of unionization and relatively low levels of labour conflict.

Weaknesses: Some critics argue that the Swedish system can be overly centralized, which can limit the ability of individual employers and workers to negotiate wages and working conditions. Additionally, the system has been criticized for being slow to adapt to changes in the labour market, such as the rise of non-standard work arrangements.

China:

Strengths: The Chinese legal framework for collective bargaining provides some protections for workers’ rights to form unions and engage in collective bargaining. The system is relatively flexible, allowing for a range of bargaining arrangements between unions and employers.

Weaknesses: In practice, the Chinese system is often characterized by limited worker protections and minimal enforcement of labour laws. Unions are often controlled by the Communist Party or by management, and workers who engage in collective action or try to form independent unions can face severe consequences.

South Africa:

Strengths: The South African legal framework for collective bargaining provides some protections for workers’ rights to form unions and engage in collective bargaining. The system is relatively flexible, allowing for a range of bargaining arrangements between unions and employers.

Weaknesses: The system can be overly complex, which can make it difficult for workers and employers to navigate. Additionally, the system has been criticized for not adequately protecting workers’ rights, particularly in the context of non-standard work arrangements such as temporary work and outsourcing.

It’s important to note that these evaluations are based on generalizations about the legal frameworks and approaches to collective bargaining and negotiation in each country, and that there is significant variation within each country based on factors such as industry, region, and the specific context of each bargaining relationship.

Predictions for how globalization will continue to affect collective bargaining and negotiation.

There is no doubt that globalization will continue to have a significant impact on collective bargaining and negotiation in the years to come. Here are a few potential predictions for how this might play out:

Increased competition: As globalization continues to create a more interconnected and competitive global economy, employers may feel pressure to reduce labour costs in order to remain competitive. This could lead to a continued erosion of worker bargaining power, particularly in industries that are highly exposed to global competition.

More cross-border collective bargaining: As global supply chains become increasingly complex, there may be more opportunities for workers and unions to engage in cross-border collective bargaining in order to ensure fair wages and working conditions across different countries and regions.

Greater emphasis on labour standards: With increased awareness of labour rights issues and growing public pressure to address labour abuses, there may be greater emphasis on labour standards in trade agreements and other international frameworks. This could create new opportunities for workers and unions to push for better labour protections and greater bargaining power.

Increased use of technology: As new technologies continue to reshape the global economy, they may also reshape the nature of work and the bargaining process itself. For example, remote work and digital platforms could make it easier for workers to organize across borders but could also create new challenges in terms of regulating and enforcing labour standards.

Overall, the future of collective bargaining and negotiation in the context of globalization is uncertain, and will depend on a range of economic, political, and social factors. However, it is clear that these issues will continue to be of critical importance for workers, unions, and policymakers in the years to come.

Recommendations for legal and policy changes to ensure fair labour practices in the global economy.

There are a number of legal and policy changes that could help to ensure fair labour practices in the global economy. Here are a few potential recommendations:

Strengthen international labour standards: One important step would be to strengthen international labour standards, such as those established by the International Labour Organization (ILO). This could involve creating stronger mechanisms for monitoring and enforcing labour standards, as well as ensuring that these standards are incorporated into trade agreements and other international frameworks.

Empower workers and unions: Workers and unions are critical stakeholders in the labour bargaining process, and empowering them can help to ensure fair labour practices. This could involve measures such as strengthening collective bargaining rights, supporting the right to strike, and creating stronger protections for workers against retaliation.

Address power imbalances: Power imbalances between workers and employers are a key challenge in the global economy. Addressing these imbalances could involve measures such as strengthening antitrust laws, regulating the power of multinational corporations, and ensuring that workers have access to legal representation and other forms of support.

Promote transparency: Transparency is a critical tool for ensuring fair labour practices, as it helps to expose labour abuses and hold employers accountable. Governments could promote transparency by requiring companies to disclose information about their labour practices, supporting independent monitoring and reporting, and creating whistle-blower protections.

Support worker-led initiatives: Finally, supporting worker-led initiatives can be an effective way to promote fair labour practices. This could involve supporting worker cooperatives and other forms of democratic ownership, as well as providing funding and other forms of support for worker-led organizations and campaigns.

Overall, ensuring fair labour practices in the global economy will require a multifaceted approach that involves a range of stakeholders, from workers and unions to governments and international organizations. By taking these and other steps, it may be possible to create a more just and equitable global labour system. (David G. Collings, 2009)

Conclusion

In summary, the topic of globalization and its impact on collective bargaining and negotiation is a complex and multifaceted issue. Existing studies suggest that globalization has both positive and negative impacts on labour rights and collective bargaining, and that the legal frameworks and approaches to these issues vary widely across different countries and industries.

Some potential recommendations for ensuring fair labour practices in the global economy include strengthening international labour standards, empowering workers, and unions, addressing power imbalances, promoting transparency, and supporting worker-led initiatives. However, the future of collective bargaining and negotiation in the context of globalization is uncertain, and will depend on a range of economic, political, and social factors.

The implications of globalization on labour law and social justice are significant. On one hand, globalization has the potential to create new economic opportunities, increase productivity, and improve standards of living around the world. On the other hand, it can also exacerbate inequality, undermine labour standards, and lead to exploitation of vulnerable workers.

From a legal standpoint, globalization has created a number of challenges for labour law. One key challenge is the difficulty of enforcing labour standards across borders, particularly in countries with weak or non-existent labour laws. This has led to a “race to the bottom,” in which companies seek out the cheapest labour possible, often at the expense of workers’ rights and well-being. Additionally, the rise of global supply chains has made it more difficult to hold companies accountable for labour violations, as responsibility is often dispersed across multiple countries and actors.

From a social justice perspective, globalization has had mixed impacts. While it has lifted millions of people out of poverty and created new opportunities for economic mobility, it has also contributed to rising inequality and labour exploitation. In particular, globalization has often led to the displacement of traditional industries and the erosion of stable, middle-class jobs, which can have significant social and psychological impacts on affected communities. It has also led to increased migration and displacement, which can create social and political tensions in both sending and receiving countries.

Overall, the implications of globalization for labour law and social justice are complex and multi-dimensional. While there are certainly opportunities for positive change, it is important to be aware of the potential risks and challenges associated with these changes, and to work towards legal and policy solutions that prioritize fairness, justice, and dignity for all workers.

In conclusion, the impact of globalization on labour rights and collective bargaining is a complex and multifaceted issue that requires further study and analysis. While globalization has the potential to create new economic opportunities and improve standards of living around the world, it can also lead to exploitation and inequality, particularly for vulnerable and marginalized workers. From a legal standpoint, the challenge of enforcing labour standards across borders and holding companies accountable for labour violations remains a significant challenge. From a social justice perspective, the displacement of traditional industries, erosion of stable jobs, and increased migration and displacement all have significant impacts on affected communities.

To address these challenges, there is a need for continued research and analysis into the impact of globalization on labour rights and collective bargaining. This research should take into account the role of technology, conduct comparative analysis of legal frameworks, consider the unique experiences of marginalized workers, and incorporate longitudinal studies to track trends and patterns over time. Ultimately, legal and policy solutions that prioritize fairness, justice, and dignity for all workers are necessary to ensure that the benefits of globalization are shared equitably and that no worker is left behind in the global economy.

Areas for further research

There are several areas for further research on the topic of globalization and its impact on collective bargaining and negotiation. Some of these include:

The role of technology: Technology has played an increasingly important role in shaping the global economy, and has significant implications for labour rights and collective bargaining. Further research is needed to understand how technological change is affecting workers and labour standards, and what legal and policy solutions may be necessary to ensure that workers are not left behind in the digital age.

Comparative analysis of legal frameworks: While there is some existing research on the different legal frameworks and approaches to collective bargaining and negotiation in different countries, further comparative analysis is needed to better understand the strengths and weaknesses of these systems, and to identify best practices for ensuring fair labour practices in the global economy.

Intersectional analysis: While much of the existing research on globalization and labour rights has focused on traditional industrial sectors, there is a need for more intersectional analysis that takes into account the unique experiences of marginalized and vulnerable workers, including women, people of colour, and migrant workers. This could help to shed light on the ways in which globalization intersects with other forms of oppression, and could inform legal and policy solutions that address these issues more effectively.

Longitudinal studies: Finally, there is a need for more longitudinal studies that track the impact of globalization on labour rights and collective bargaining over time. This could help to identify trends and patterns in the evolution of these issues, and could provide insights into the effectiveness of different legal and policy solutions over the long term

References

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Cynthia S. Estlund, W. L. (2021, June 30). Collective Bargaining Beyond Employment in the UnitedStates. Retrieved from papers.ssrn.com: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3861916

David G. Collings, G. T. (2009). HumanResourceManagementACriticalApproach.London.

International Labour Organization. (n.d.). Conventions and Recommendations. Retrieved from www.ilo.org: https://www.ilo.org/global/standards/introduction-to-international-labour- standards/conventions-and-recommendations/lang–en/index.htm

Kucera, D. &. (2017). Industrial Relations, Collective Bargaining and the gig economy. InternationalLabourReview, 335-357.

Lee, S. (2009). Impact of Globalization on Labor Standards: A Literature Review. Journal of BusinessEthics, 75-88.

Mclaren, J. (2017). Globalization and Labor Market Dynamics. AnnualReviews.

Novitz, T. (2016). Labour Law, Human Rights and Social Justice. In Oxford Handbook of ComparitiveLaw(pp. 1182-1200). Oxford: Oxford University Press.

Shukla, R. J. (2017). Impact of Globalization on Human Resource Practices. Indian Journal ofIndustrialRelations, 496-507.

Wilkinson, A. (2018). Impact of Globalization on Employement Relations: Implications for HRM. In Research on Comparitive Human Resource Management (pp. 203-222). Edward Elgar Publishing.

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About Authors

2. Dr Abhilasha Raj (Coauthor) is an Assistant Professor at Amity Law School, Noida, Uttar Predesh, India.

Collegium System and its war with the Central Government

“No institution in ‘democracy’ is perfect” -CJI DY Chandrachud

The Collegium system is the most debatable topic from the time of its origin. This system has emerged from the various judicial pronouncements of the Supreme Court.

A huge amount of criticism has been faced by the collegium system from the government and the society because of its negative aspects like obscurity and favouritism. Due to these issues, the debate has arisen again by the Central government.

Union Law Minister Kiren Rijiju has written to the Chief Justice of India, that he is not satisfied with the current system of appointing judges aka Collegium System, and has proposed the reintroduction of the National Judicial Appointment Commission (NJAC) and also suggested that the collegium should have at least one government nominee.

What is the collegium system?

The collegium system is a system which deals with the appointment and transfer of the judges of the different courts of India including the Chief Justice of India. It has not been developed by any Act or any provision of the constitution but it owes its origin to the various judgements.

The Present Collegium system comprises 5 judges including 4 Senior-Most Judges of the Supreme Court of India headed by the Chief Justice of India, similarly, Judges of High Courts are also appointed by a group of three Judges which is lead by the Chief Justice of India and other two senior-most judges of the respective High Courts.

Article 124(2) and Article 217 of the Indian constitution lay down that the Judges of the Supreme Court and High Court shall be appointed by the President of India after consultation with judges of the Supreme Court for the former and with the consultation of the Chief Justice of India, the Governor of the state for the latter.

Therefore, power has been Conferred in the hands of these people for the transfer and appointment of the Judges and the role of the government is only to choose those persons who are named by the collegium.

Origin and Journey of the collegium system:

Over time, the procedure of appointment has faced many changes and has transformed from being an executive function which has to be accomplished by the president to being a judicial function which is being exercised by the Chief Justice of India, and the role of the President has become no more than an approver.

The existence of the collegium system is itself an irony because it replaces a body established by the parliament(NJAC) based on it being unconstitutional while being unconstitutional itself.

Till the year 1973, there was a mutual agreement between the government and the Chief justice of India which led to the formation of the convention where it has been agreed that the chief justice of India will be the senior most judge of the Supreme Court but, in 1973, this convention was violated when A.N.Ray was appointed as the Chief Justice of India after superseding three other senior judges of the Supreme Court to him.

This incident saw its repetition in 1977. In this way, the clash between the executive and judiciary regarding the appointment of judges came into existence. Article 124(2) and 217 of the Indian Constitution states that The President shall appoint the judges after consulting with the judges of the Supreme Court and High Court whichever may be necessary but our Constitution is silent about the word “Consultation”. Such matter was later on decided in the following catena of judgements.

S.P. Gupta v Union of India (1981) (“First Judges’ Case”)
In 1981, the collegium system was surrounded by debates when the then law minister, Shiv Shankar filed a petition regarding the implementation of a policy for posting judges out of their home states.

While dealing with the several petitions, the court also shed some light on the power to appoint High Court and Supreme Court Judges and held that the Chief Justice of India and Chief Justice of the High court can only consult and only the executive can exercise the power of appointment.

Justice Bhagwati held that the word consultation does not mean concurrence. The decision of the Supreme Court Judges is not binding on the President in the matter of Appointment and transfer.

Supreme Court Advocate-on-Record Association vs Union of India (1993) (“Second Judges’ Case”)
The Supreme Court overruled its previous judgement in the S.P. Gupta case and held that the word “consultation” implies “concurrence” which means that the Chief Justice of India has the superiority over the President and his power is regarded as “unique, singular and primal”.

Further Supreme court stated that the decision of the Chief Justice of India is not solely his own but is of the collegium which consists of the CJI and Two other Senior Judges.

Re Presidential Reference (1998) (“Third Judges’ Case”)
In this case, 9 judge bench of the Supreme Court opined that the decision of the Chief justice of India has primacy and the collegium should consist of CJI along with 4 other senior-most Judges of the Supreme court which was earlier two in number.

In 2014 Bhartiya Janta Party (BJP) came to power and passed the National Judicial Appointment Commission Act. The composition of NJAC consisted of the CJI, 2 Senior-most judges of the Supreme Court, The Law Minister of India, and 2 eminent members that were chosen by the selection committee(the CJI, P.M., the leader of the opposition). Power has been given to the NJAC for recommending the names for the appointment of judges of the Supreme court and the Transfer and appointment of the judges of the high court.

The constitutionality of NJAC was challenged in the case of Supreme Court Advocate-on-Record Association vs Union of India (2015) andthe Majority of the Supreme Court declared it unconstitutional and violative of the Basic Structure doctrine of the Indian Constitution and also found it to be against the independence of the judiciary.

Hence in this way, the Present collegium system has evolved in which the President is obliged to consider the opinion of the Chief Justice of India and the opinion must be made after due Consultation with the Judges in the Collegium.

Should collegium be quashed?

The constitutional validity of the Collegium System is no doubt a big question and has been answered mostly negatively.

Late V.R. Krishna Iyer says regarding the nature of collegium:

“Thus, today we have a curious creation with no backing under the Constitution, except a ruling of the Supreme Court, and that too based on a very thin majority in a single ruling. Today, the collegium on its own makes the selection. There is no particular structure to hear the public in the process of selection. No principle is laid down, no investigation is made, and a sort of anarchy prevails. In a minimal sense, the selection of judges of the highest court is done in an unprincipled manner, without investigation or study of the class character by the members of the collegium. There has been criticism of the judges so selected, but the collegium is not answerable to anyone.”

While reading Article 124(2) we often ignore the fact that the article and its application do not match and render the collegium unconstitutional. The article clearly says that:

Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.

Meaning, even if the collegium system is ignorant of the constitutional scheme accommodating a body for the appointment of judges, the membership of this very body must be verified and validated by the President of India.

The criticism of the collegium mainly revolves around the following grounds:

• Transparency: Due to the absence of any criteria-based assessment and any information available regarding the working of the collegium system, makes it less reliable and credible.
• Unconstitutional: In the Constitution, the word “collegium” is mentioned nowhere, and has been created by the judiciary for reserving the power to select judges.
• Undemocratic: There is no role of the public in the selection of judges, and consequently the judges are not accountable to the people.
• Nepotism: Many judges are appointed based on their relations with senior lawyers in the higher judiciary.

Putting aside all the criticism, the Supreme court still maintains that the collegium system is the most transparent body and it should neither be quashed nor replaced. Former Chief Justice UU Lalit also said that the collegium system will stay here unless the government revives the National Judicial Appointment Commission.

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Image Credit: Telegraph India

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About the Authors

Aditya Kumar Saraswat and Aman Bhan Pachauri are third year Students of the Faculty of Law, Aligarh Muslim University, Aligarh, India.