Overcoming the backlog of cases: Judicial reform

A British citizen, Will Pike was paralysed during the 2008 Taj Hotel blasts in 2008. Suing the hotel group for compensation, he wanted the trial to take place in London rather than in India. Accepting his contention, the London court allowed the matter, specifically stating that the trial in India could take some ‘twenty years’. This is a befitting example of the pendency in Indian judicial system and how it needs to be urgently addressed.

THE MAGNITUDE OF THE PROBLEM

The graphic below states the number of cases pending before the Courts in India. Currently, about 3.25 crore cases are pending in the Indian courts and Judges fear that this number might escalate to about 4 crore cases by the end of 2016. This problem gets escalated due to the crunch of Judges at all levels of Judiciary as seen in the graphic below.


 

Timely justice is an integral part of access of justice and this huge backlog of cases amounts to denial and derailment of justice. This article will look into the proposed reforms for addressing this systemic problem.

10 REFORMS FOR ADDRESSING JUDICIAL PENDENCY

The 245th Law Commission Report on “Arrears and Backlogs: Creating Additional Judicial (W)omanpower has recommended the following measures

1. Calculating Adequate Judge Strength through a more scientific analysis of data – In this context, the Commission has negated a simplistic method like Judge-Population ratio (Number of judges required per million people) in favour of a Rate of Disposal Method.

In the Rate of Disposal Method, one looks at the current rate at which judges dispose of cases. Then, given that the institutions and disposal rate remain the same, the Courts would need how many more additional judges to keep pace with the new filings in Court so that the newly instituted cases do not add to the existing backlog.

2. Judges to be appointed on a Priority basis: India currently has 1/5th of the number of judges it needs and thus, the Judges need to be appointed on a priority basis.

3. Increasing the age of retirement for Subordinate Court Judges to 62 years.

4. Creation of Special Courts for traffic/police challan cases: They constitute about 37.4% of the existing pendency before the subordinate courts.

5. Provision for staff and infrastructure

6. Periodic Needs Assessment by High Courts: Monitoring the rate of institution and disposal of cases and revising the adequate strength of Judges since a High Court is equipped with all the information relating to the subordinate courts in the State. The Malimath Committee had recommended setting up of Vigilance Cells in each district by the High Court to monitor the performance of subordinate judicial officers.

7. Uniform data collection and data management methods : to bring in greater transparency.

8. Need for a system-wide reform: The Commission has recommended the following:
● Greater encouragement to Alternative Dispute Resolution (ADR) and Lok Adalats <Can you tell us the difference among various types of ADRs, mediation, arbitration and conciliation? Answer in comments>
● Setting up non-mandatory time frames and performance benchmarks for resolution of different types of cases based on rational criteria.

OTHER RECOMMENDATIONS

9. Use of Technology : Has been recommended by the 230th Law Commission Report and the Malimath Committee Report to
(a) Club cases filed on similar points of law, which can be decided on the basis of a single judgment.
(b) Track old cases, which have become infructuous and dispose them off quickly
(c) Setting up E-Courts and ushering in E-filing. Has received a major boost under the e-Courts Integrated Mission Mode Project.

10. Creation of All-India Judicial Service: Provided for under Article 312 of the Indian Constitution. The idea has been mooted by various bodies including the First Judicial Pay Commission and accepted by the Supreme Court. Art 2012 proposal regarding creation of this service has not received responses from all States and this proposal continues to be hanging in the air <can you tell us the procedure of creation of new all India service? Answer in comments>.

CONCLUSION:

Many steps are currently being taken by the Government and the Courts to address this problem.

  • Monthly National Lok Adalats are carried out for expeditious disposal of claims.
  • In March 2016, the Monthly Lok Adalat disposed of about 1.5 lakh cases and settled claims worth Rs. 100 crores <Where can one appeal against the decision of Lok Adalats. Also tell us about the jurisdiction of Lok Adalats. Answer in comments>
  • In criminal cases, the setting-up of fast-track Courts and “plea bargaining” have further expedited matters <Can you tell us what’s plea bargaining? Answer in comments>
  • The e-courts project, aimed at providing better Court management and a database of all pending cases with easier filing of important documents is underway.
  • Moreover, the National Litigation Policy 2015 is awaiting ministerial approval and seeks to reverse the trend of Government being the biggest litigant <did you know one of the argument for rejecting NJAC was that govt was the biggest litigant, therefore can have no role in appointment of judges>.

However, in view of the burgeoning backlog and urgency of reducing backlog, the efforts need to be severely expedited.


P.S. This article is published with inputs from a CD user  Joyousjojo (name changed on request).

P.P.S. If you want to write explainers for CD, mail us your explainer at hello@civilsadily.com

Any doubts?


  1. Profile photo of Sandeep Kumar Sandeep Kumar

    ‘Plea Bargaining’ can be defined as pre-trial negotiations between the accused and the prosecution during which the accused agrees to plead guilty in exchange for certain concessions by the prosecution.

  2. Profile photo of Devika Verma Devika Verma

    Under Art 312, an All India Service can be created by passing a resolution for the same in the Council of States (Rajya Sabha) by at least two-thirds of majority.

  3. Profile photo of Devika Verma Devika Verma

    Mediation: Mediation is the process where the mediator, which is an independent third party, can help in identifying the dispute issues, consider alternative options and try to reach an agreement. However, the mediator will not give advice and their will not be any binding decision from the mediator.

    Conciliation: It is similar to mediation, however, the conciliator may be a professional person and can give expert advice, which a mediator cannot. A conciliator would help in trying to reach an agreement but no decision would be taken by it and thus would not be binding.

    Arbitration: It is the process which is much more formal and structured than mediation or conciliation. An arbitrator’s decision would be binding on the parties. It is generally sought in issues which are technical in nature and is similar to a court process. Before seeking arbitration the parties have to agree that the decision would be binding and enforceable.

  4. Profile photo of Pranav Pranav

    Please put up question for this.
    Thanks

  5. Profile photo of Pranav Pranav

    Plea bargaining – an arrangement between prosecutor and defendant whereby the defendant pleads guilty to a lesser charge in exchange for a more lenient sentence or an agreement to drop other charges

  6. Profile photo of Pranav Pranav

    Lok Adalats were formed under the Legal Services Authorities Act which also provides for NALSA
    These settle disputes through concilliation and compromise
    Accepts cases pending in regular court under their jurisdiction
    • The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman, with two other members, usually a lawyer and a social worker.
    • Main condition of the Lok Adalat is that both parties in dispute should agree for settlement.
    • There is no court fee.
    • The decision of the Lok Adalat is binding on the parties to the dispute and its order is capable of execution through legal process.
    • No appeal lies against the order of the Lok Adalat.

[op-ed snap] A case for larger benches

Image result for constitutional bench

Image Source

Note4students

Mains Paper 2: Polity | Structure, organization and functioning of the Executive and the Judiciary

Op-ed discusses the pendency problems in Supreme Court and need for larger constitutional benches. After reading this op-ed you will be able to fully attempt the following question.

“It is important to have a large bench to decide major cases, particularly one that has a direct bearing on individuals” Discuss?

From UPSC perspective, following thing are important:

Prelims level: Supreme Court

Mains level: Pendency problem in Supreme Court, its reasons, implications and way forward.


News

Context:

  1. Nine-judge bench of the Supreme Court heard arguments on whether privacy is a fundamental right.
  2. According to author it is important to have a large bench decide major cases, particularly one that has a direct bearing on individuals

Background

  1. When the Supreme Court was born in 1950, there were a total of seven judges and a chief justice
  2. Number of judges has gradually increased to a total of 31 today, as amended by Parliament in 2008. Of these 31 slots, 27 are filled today.

Pendency problem in SC

  1. Between independence and the mid-1970s, the number of admitted cases rose from about 1,000 to about 5,000.
  2. After the Emergency period, the case load quintupled.

But there was a dramatic decline in the number of recorded admission and regular hearing matters pending before the court in the mid-1990s.

How?

  1. This arose because the court changed how it accounted for matters by counting each clubbed matter rather than each hyphenated matter relating to the same case separately.
  2. It also instituted a framework for clubbing matters more effectively at the lower court levels.
  3. Despite this, the number of backlogged cases has risen again and runs to approximately 60,000 today.

What SC did to overcome this issue?

  1. To keep pace with the increasing case load, Supreme Court instituted small bench hearings. 
  2. Most judgements are from benches of just two or three judges.

Problem with small benches?

  1. Over the years, with similar matters being heard by different but small benches, the Supreme Court has acquired a polyvocal character.
  2. The inclusive access to the Supreme Court makes for a large case load and lends a polyvocal character to its decisions.

Constitutional benches?

  1. According to Article 145(3) of the Constitution, a bench of at least five judges needs to sit in judgement on any case “involving a substantial question of law as to the interpretation of the Constitution
  2. During the early decades after independence, constitution benches were created for over 100 cases in a decade.
  3. That number has slowed down to about 20 in each decade over the last 30 or so years.
  4. As a proportion of disposed cases, constitution benches have dropped to a fraction of 1% from over 5%.
  5. The largest bench that has ever adjudicated on a case is 13, in the matter of Kesavananda Bharati v. State of Kerala in 1973.

Mandates

  1. If past decisions of constitution benches are going to be re-examined, then the later constitution benches have to be of greater size than the earlier ones.
  2. The current case being heard on privacy is the 15th nine-member bench of the Supreme Court.
  3. Earlier it was decided by a six-member and an eight-member constitution bench.

Need for larger constitutional bench

  1. It is important to have a large bench decide major cases, particularly one that has a direct bearing on individuals
  2. For a substantial question of law, the polyvocal character of the court creates ambiguity and results in a periodic requirement for review.
  3. A larger bench has greater legitimacy and greater value for precedent setting than a small bench.
  4. The tendency of the court to choose efficiency versus effectiveness and legitimacy resulted in a greater case load over time.
  5. Contrary to what the Law Commission recommended in 2009, a separate constitution bench outside the Supreme Court makes little sense.
  6. With the advent of GST and its complicated split into state GST, Central GST and integrated GST, the Supreme Court’s time will be in ever greater demand for issues of federal tax splits

Way forward

  • Filter out the more mundane cases on the docket, allowing more time for constitutional jurisprudence.

 

Supreme Court says jobs, admissions secured on fake caste certificates not valid

Note4students

Mains Paper 2: Polity | Structure, organization and functioning of the Executive and the Judiciary

From UPSC perspective, following things are important:

Prelims level: Understand terms like Retrospective effects

Mains level: This judgement can be quoted as an example of supremacy of Supreme court over Judgements of high court.

News

  1. What: According to a recent SC Judgement, job and admissions secured on caste certificates in reserved categories cannot be sustained if found to be fake subsequently
  2. Disagreement from the HC Judgement: SC disagrees with the Bombay High Court ruling that a person can be allowed to continue in job if caste certificate is found fake after a long period

Is this judgement Retrospective?

  1. The SC said that the findings of its verdict would not be made applicable with retrospective effect and would be applied now onwards

SC allows abortion of ailing foetus

source:
Note4students 
Mains Paper 2: Governance | Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.
From UPSC perspective, following things are important:
Prelims level: MTP Act
Mains level: What are the benefits of the Medical Termination of Pregnancy (MTP) Act to women? Also examine issues involved in using the MTP Act.

News
  • Supreme Court on Monday allowed a woman to abort her over 20-week-old foetus with severe abnormalities.

Background?

  • Medical Termination of Pregnancy Act of 1971 bars abortion if the foetus has crossed the 20-week mark.
  • An exception to the law is available if a medical practitioner certifies to a court that the continued pregnancy is life-threatening for the mother or the baby.
  • Supreme Court’s decision whether a woman should be allowed to abort or not after the 20 weeks period has been on a case-to-case basis. 
  • The court wanted to stretch the law on abortion that would allow termination of pregnancy beyond 20 weeks if the foetus suffered from severe abnormalities

What did the Court Observe in this case?

  • The court observed that the right of a woman to have a reproductive choice was part of personal liberty 
  • Every woman had a sacrosanct right to bodily integrity.
Back2Basics:
Medical Termination of Pregnancy Act: Key Provisions
The Act made the abortions legal up to 20 weeks of pregnancy.
  1.  The termination of pregnancy requires the opinion of two doctors.
  2.  The abortion can happen if the physical or mental health of the mother is in danger due to pregnancy.
  3.  If there is a risk of the birth of a handicapped or malformed baby.
  4.  Pregnancy of unmarried girls under 18 years of age, with the consent of the guardian.
  5.  Pregnancy resulting due to rape.
  6.  Pregnancy resulting due to the failure of sterilisation.

[op-ed snap] Article 142 and the need for judicial restraint

source

Note4Students:

Mains Paper 2: Polity | Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

The op-ed is about Article 142. The time has come for the Supreme Court to introspect on whether the use of Article 142 as an independent source of power should be regulated by strict guidelines. Few takeaways:

  1. Make note of the cases where Article 142 has been applied and where it has been forayed.
  2. The op-ed might not be a direct answer to questions, but in the long run will help you all through Prelims, Mains and Interview.

Context:

  1. The recent judgments of the SC invoking Article 142 of the Constitution to achieve results of a far-reaching nature, outside the laws governing the issues
  2. In the early years of the evolution of Article 142, the article was lauded for its efforts to bring complete justice to various deprived sections of society or to protect the environment

Constructive application:

  1. We have, the cleansing of the Taj Mahal, whose marble was yellowing on account of sulphur fumes from the surrounding industries
  2. Today, on account of the court’s efforts over a period of years, we have had our heritage restored to its original beauty
  3. Similarly, undertrials were rotting in jails for greater periods than the maximum punishment which could have been inflicted on them
  4. With a single stroke of the pen, thousands of them were released
  5. Miraculous changes were brought to the lives of ordinary people

Union Carbide case:

  1. An important instance of application by the SC of Article 142 was in the Union Carbide case
  2. The case was related to the victims of the Bhopal gas tragedy
  3. Here the Court felt a need to deviate from existing law to bring relief to the thousands of persons affected by the gas leak
  4. In this judgment, the SC, while awarding compensation of $470 million to the victims, also said that to do complete justice, it could even override the laws made by Parliament
  5. It held that, “prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142”
  6. By this statement the Supreme Court of India placed itself above the laws made by Parliament or the legislatures of the States

Foraying into forbidden territory:

  1. This statement was toned down later in SC Bar Association v. Union of India
  2. It was said therein that the said article could not be used to supplant the existing law, but only to supplement the law
  3. However, in recent years, there are several judgments of the SC wherein it has been foraying into areas which had long been forbidden to the judiciary by reason of the doctrine of ‘separation of powers’, which is part of the basic structure of the Constitution
  4. The court, in its anxiety to do justice in a particular case or matter, has failed to account for the far-reaching effects of its judgments, which may result in the deprivation of the rights of a multitude of individuals who are not before the court at that time

Cases, wherein the SC has failed to perform:

  1. The coal block allocation case: Allocation of coal blocks granted from 1993 onwards was cancelled in 2014 without even a single finding that the grantees were guilty of any wrongdoing
  2. Article 142 had necessarily to be invoked. The individuals were not heard on their particular facts, but only their associations were heard
  3. The SC invoked Article 142 while awarding compensation to survivors; who became unemployed following the court’s order prohibiting sale of liquor along highways demonstrate in Chandigarh
  4. While the notification by the central government prohibited liquor stores along National Highways only — the SC put in place a ban of a distance of 500 metres by invoking Article 142
  5. As a result of the order, thousands of hotels, restaurants, bars and liquor stores were forced to close down or discontinue the sale of liquor, resulting in lakhs of employees being thrown out of employment

Back2Basics:

Article 142 provides that “the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it…”

National Lok Adalat settles over 6 lakh cases in one day

  1. News: The Second National Lok Adalat for 2017, conducted throughout the country from taluk level courts to High Courts, has settled nearly 6.6 lakh cases
  2. Out of this, 3.68 lakh cases have been reduced from court pendency and about 2.92 lakh cases were settled even before they could be filed in courts
  3. The cases ranged from matrimonial disputes, partition suits, civil matters, cheque bounce cases, motor accident claims, revenue disputes pending in courts, criminal compoundable cases and service matters pertaining to pension, retrial benefits, etc.
  4. The NALSA, under Justice Misra, has decided to organise bi-monthly National Lok Adalats for both pending and pre-litigative cases
  5. Culture of settlement: Lok Adalats are setting up a “culture of settlement”

Note4students:

Important step towards amicable resolution of cases and reducing judicial pendency. Know about NALSA here and Lok Adalat in b2b from prelims perspective. A question on NALSA and Lok Adalats can also come in prelims.

Back2basics:

Lok Adalats:

  1. NALSA along with other Legal Services Institutions conducts Lok Adalats
  2. Lok Adalat is one of the alternative dispute redressal mechanisms
  3. It is a forum where disputes/cases pending in the court of law or at pre-litigation stage are settled/ compromised amicably
  4. The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman, with two other members, usually a lawyer and a social worker
  5. Statutory: Lok Adalats have been given statutory status under the Legal Services Authorities Act, 1987
  6. Final award: Under the said Act, the award (decision) made by the Lok Adalats is deemed to be a decree of a civil court and is final and binding on all parties and no appeal against such an award lies before any court of law
  7. No appeal: If the parties are not satisfied with the award of the Lok Adalat though there is no provision for an appeal against such an award, but they are free to initiate litigation by approaching the court of appropriate jurisdiction by filing a case by following the required procedure, in exercise of their right to litigate
  8. No fee: There is no court fee payable when a matter is filed in a Lok Adalat
  9. If a matter pending in the court of law is referred to the Lok Adalat and is settled subsequently, the court fee originally paid in the court on the complaints/petition is also refunded back to the parties
  10. Members: The persons deciding the cases in the Lok Adalats are called the Members of the Lok Adalats
  11. They have the role of statutory conciliators only and do not have any judicial role
  12. Persuasion: Therefore they can only persuade the parties to come to a conclusion for settling the dispute outside the court in the Lok Adalat and shall not pressurize or coerce any of the parties to compromise or settle cases or matters either directly or indirectly
  13. Amicable resolution: The Lok Adalat shall not decide the matter so referred at its own instance, instead the same would be decided on the basis of the compromise or settlement between the parties
  14. The members shall assist the parties in an independent and impartial manner in their attempt to reach amicable settlement of their dispute

Use restraint in using Article 142

  1. Article 142: Empowers the SC to pass any decree or order necessary for doing “complete justice” in any matter pending before it
  2. Criticisms: Use of Article 142 should be in accordance with law and due process of law as guaranteed in Article 21. A recent order on the highway liquor ban under A142 has rendered lakhs jobless
  3. Lawyers are also against a proposal to employ extraordinary powers under Article 142 to order a joint trial of the two Babri Masjid demolition cases pending for the past 25 years
  4. Article 142 is not a source of unlimited power for SC to go far ahead. There should be self-restraint

Note4students:

Issue over use of Article 142 coming forth. Keep track of the issue for mains. Also know about related provisions in Constitution for prelims.

SC orders installation of CCTV cameras inside district courts

  1. News: In a novel experiment, the Supreme Court directed that CCTV cameras to be installed inside lower courts in at least two districts in every State and Union Territory within the next three months
  2. Significance: It may be a perceived as a small step towards changing the status quo and re-igniting the debate on whether public should be given access to judicial proceedings as a positive measure towards dispelling opacity
  3. The footage from these videos or feeds will not be open for public access under the Right to Information Act
  4. It will not be supplied to anyone without the permission of the concerned High Courts
  5. Background: Unlike the parliament and legislative bodies across the country, judicial proceedings inside a court room has been a closely-guarded affair with no access given to prying eyes
  6. Court recordings are neither recorded via audio or video
  7. Judges in India have always defended their freedom to engage in their work away from the eyes of the camera unlike in some other countries and international courts

Note4students:

Important step towards transparency.

Legal services bodies ensure justice for all

  1. Context: the 15th All India Meet of States’ Legal Services Authorities
  2. Justice Ranjan Gogoi: Legal services authorities are harbingers of justice for all
  3. There should be a debate on amendments to statutes to ensure access to justice through legal services authorities
  4. The Supreme Court Legal Services Authority is not short of funds and needs to be proactive with the best legal talents within its fold
  5. While the legal machinery worked overtime for giving terrorists and hardcore criminals access to justice there was hardly a mechanism to reach out to their victims

Note4students:

Legal Services in India: access to justice for poor and vulnerable and part of a solution for judicial pendency- an issue for mains; Know about Legal Services Authority for prelims.

Back2basics:

National Legal Services Authority of India (NALSA)

  1. It was formed on 5 December 1995 under the authority of the Legal Services Authorities Act 1987
  2. Motto: Access to justice for all
  3. Purpose: To provide free legal services to eligible candidates (defined in Sec. 12 of the Act), and to organize Lok Adalats for speedy resolution of cases
  4. The Chief Justice of India is patron-in-chief of NALSA while second seniormost judge of Supreme Court of India is the Executive-Chairman
  5. There is a provision for similar mechanism at state and district level also headed by Chief Justice of High Courts and Chief Judges of District courts respectively
  6. The prime objective of NALSA is speedy disposal of cases and reducing the burden of judiciary

SC cracks down on judicial delays

  1. Supreme Court: Non-performers and “dead-wood” among judges should be weeded out as the judicial service is not just a job to be done with but a mission to serve the cause of justice
  2. Highlighted the importance of having men and women with leadership qualities among the subordinate judiciary, which has over two crore pending cases
  3. Subordinate judiciary “cannot rest in a state of helplessness” as litigants wait in snaking, ever-longer queues for their turn
  4. Public interest is above individual interest
  5. Posting of suitable officers in key leadership positions of Session Judges and Chief Judicial Magistrates may perhaps go a long way in dealing with the situation
  6. Guidelines: In a slew of guidelines for High Courts, the Supreme Court fixed a time-bound hearing and disposing of criminal cases, especially in bail applications
  7. Bail applications be decided in a week by subordinate courts, while High Courts do the same within a month
  8. Magisterial trials, where accused are in custody, should normally be concluded within six months and sessions trials, with accused in custody, within two years
  9. 5 year pendency: It asked the High Courts to ensure that subordinate courts dispose of cases pending for five years by the end of 2017
  10. In case of High Courts, the judgment said criminal appeals, where accused are in custody for more than five years, should be concluded at the earliest
  11. Monitor actions: High Courts should monitor action plans for lower courts and keep a constant watch
  12. The timelines prescribed in the judgment would be used to assess judicial performance in the annual confidential reports of judicial officers
  13. Human rights: 50% of the population in jails consists of undertrial prisoners and long periods of incarceration without bail or trial is human rights violation
  14. Those undertrials who have already completed their entire period of their sentence had they been found guilty should be released on personal bond
  15. Liberal adjournments of cases must be avoided and witnesses once produced must be examined on consecutive dates
  16. It held that suspension of work or strikes were “clearly illegal and it is high time that the legal fraternity realises its duty to the society which is the foremost”

Note4students:

Note the important issues highlighted here by SC like human rights, weeding the deadwood, primacy of public service. Just go through the guidelines and remember important ones for mains.

SC to HCs: Don’t keep review pleas pending

  1. Speed it up: The Supreme Court has asked High Courts to dispose of review petitions as expeditiously as possible
  2. Aim: To prevent any slow-up in the process of justice
  3. The pendency is likely to delay the matter in every court
  4. It also emboldens the likes of the petitioner to take a stand intelligently depicting the same in the application for condonation of delay
  5. Guidelines issued: The court issued a slew of guidelines for High Courts, litigants and their lawyers while dealing with review petitions
  6. An endeavour has to be made by the High Courts to dispose of the applications for review with expediency
  7. It is also the duty of a litigant to file his review plea against a judgment on time
  8. It is the obligation of counsel filing an application for review to cure or remove the defects at the earliest
  9. Review petitions are often kept on “life support” by litigants and their lawyers to deliberately delay the process
  10. The prescription of limitation for filing an application for review has its own sanctity
  11. The registry of the High Courts had a duty to place the matter before the judge/Bench with defects so that there could be preemptory orders for removal of defects
  12. An adroit method could not be adopted to file an application for review and wait till its rejection and, thereafter, challenge the orders in the special leave petition

Note4students:

Important for mains. A part of the issue on judicial pendency.

[op-ed snap] Guilty until…

Context:

  1. Delhi court’s acquittal of two persons accused of involvement in the 2005 serial blasts in the city
  2. It brought an end to their long incarceration
  3. However, it brings to light another instance of unconscionable miscarriage of justice in this country

Accuse is acquitted:

  1. Additional Sessions Judge Reetesh Singh acquitted the two men — Mohammad Hussain Fazli and Mohammad Rafiq Shah — of all charges
  2. The court found no evidence to link the third accused, Tariq Ahmed Dar, to the blasts, though it convicted him for being a member of a terrorist organization
  3. At one level, the judgment is a reassuring affirmation of the independence at the lower rungs of the Indian judiciary

Background:

  1. The explosions, in a bazaar outside the New Delhi railway station, in a bus, and in the Sarojini Nagar market, came just before Deepavali
  2. It killed 67 and injured more than 200 people

False Trails:

  1. It must invite a response from the state to inquire into and address the processes that keep investigating agencies and prosecutors so determinedly on false trails
  2. The frightening monotony with which Indian agencies have been failing to professionally investigate terrorism cases, and are accused of framing innocents, should jolt the system
  3. The court said the prosecution had “miserably failed” to prove its case regarding who carried out the October 29, 2005 bomb blasts
  4. It noted that the prosecution failed to establish a link between Dar and the other two Kashmiris accused
  5. This is not the first time that investigation into a terror case has fallen flat in a court of law; nor is it the only instance of the Indian security agencies being accused of framing innocents
  6. The judgment is a telling commentary on India’s faulty counter-terror posture, one that demands a holistic overhaul

Not the first time:

  1. There is a long list of terror attacks in which the security establishment failed to carry out a scientific probe and ended up framing innocent persons
  2. The Malegaon blast of 2006, the attack on Mecca Masjid in Hyderabad in 2007, the Samjhauta Express attack of 2007 have all seen the investigating agencies flailing to find the guilty
  3. Such incompetence has grave implications for India’s preparedness to avert terrorist strikes
  4. It is from credible clues gathered during investigations into an attack that agencies pick up the trail to active terror groups, sleeper cells, and so on

Lives of innocent people ruined:

  1. Moreover, this incompetence often swallows the lives of innocent persons
  2. In this case, Mohammad Rafiq Shah was just another college student in Srinagar when he was detained in 2005, while Mohammad Hussain Fazli was a struggling carpet-maker
  3. It is difficult to imagine what could be done to compensate them for their long, unjust incarceration
  4. A reform of the investigation processes should, however, frame the state’s response to the verdict.

Note4Students:

It may not be a direct question, but it is important to know about this prevailing issue of (in)justice; especially when there have been questions raised on effectiveness of criminal justice system in India.

[op-ed snap] Be the solution

Law Minister’s direction:

  1. Union Law Minister Ravi Shankar Prasad’s missive to all high court chief justices to “review” cases of undertrials who have been incarcerated for long and to “take suo motu action for their release”
  2. A plethora of data highlights the seriousness of the problem

Statistics:

  1. National Crime Records Bureau (NCRB) data shows that of the over 2.82 lakh people in jail in 2015, about 67% were undertrials
  2. More than 65% of the undertrials spend three months to five years in jail before getting bail

Past records:

  1. Calls to rectify matters have been made before
  2. The issue of undertrials found mention during the imbroglio over the appointment of judges last year
  3. But very often the plight of those languishing in jails entered the argument only to make a case for the urgency of the appointment of judges

The delay:

  1. An overburdened judiciary is a major reason for the delay in justice
  2. The understaffed judiciary compounds the problem
  3. Section 167 of the Code of Criminal Procedures mandates that judges can extend a detainee’s custody for a period of 15 days at a time
  4. For that to happen, the detainees have to be produced regularly before the courts
  5. This rarely happens; proceedings don’t take place in time and the undertrials are shuttled from court to court
  6. While issuing his directive to the judges, the law minister asked all “the stakeholders — the government and judiciary — to take collective responsibility” to ensure that that the “institutional mechanism” works “seamlessly to ensure access to justice for the undertrials”
  7. Other shortcomings in the criminal justice system too require urgent redressal
  8. Police and prison officials, for example, often fail to fulfill their roles, leading to long delays in trials

Equality in court corridors:

  1. Most of the undertrials come from disadvantaged social groups — several surveys have shown that 50-55% of the undertrials are from minority communities and Dalits
  2. NCRB data shows that 70% of them are illiterate
  3. Lack of resources constricts their ability to seek out lawyers and hostile police and prison authorities are rarely of help
  4. Despite a 1980 Supreme Court ruling that Article 21 of the Constitution entitles prisoners to a fair and speedy trial as part of their fundamental right to life and liberty

Note4Students:

The op-ed is important for understanding our judicial system. A direct question may not be asked but it can be a point on judicial reforms.

Nod of judge not needed for transfer

  1. Context: Justice C.S. Karnan was issued contempt notice for allegedly penning scurrilous communications against High Court and Supreme Court judges
  2. Background: In February 2016, as a Madras High Court judge, Justice Karnan stayed his own transfer order by Supreme Court
  3. He questioned the Chief Justice of India’s comment that the transfer was recommended for reasons of “better administration”
  4. He had later expressed regret and was shifted out after the President signed the warrant and set a deadline for him to join the Calcutta High Court
  5. Precedents: A plethora of Supreme Court decisions deals with the procedure and philosophy behind judges’ transfer policy
  6. These Constitution Bench decisions weigh, among other questions, whether prior consent of a High Court judge is necessary before transferring him or her from one High Court to another
  7. Article 222 (1) of the Constitution deals with the transfer of a High Court judge to another High Court
  8. It says that the “President may, after consultation with the Chief Justice of India, transfer a judge from one High Court to any other High Court”
  9. The Supreme Court, in the Second Judges Case of 1993, had held in a majority judgment that consent of the judge was not necessary for transferring him out, provided it was done with the full and effective consultation with the Chief Justice of India
  10. The transfer should be done in public interest and not as a punishment
  11. The 1993 judgment referred to the 1977 decision of the Supreme Court in Union of India v/s Sankal Chand Sheth case and S.P. Gupta verdict of 1982, both of which had held that there was no requirement of prior consent of the judge concerned before his transfer under Article 222
  12. 1993: “The power of transfer can be exercised only in public interest, that is, for promoting better administration of justice throughout the country,” the Supreme Court had held in 1993
  13. “Any transfer in accordance with the recommendations of the Chief Justice of India cannot be treated as punitive or an erosion in the independence of the judiciary”
  14. The 1993 judgment had held that there should be no reason for a judge to even think that his transfer was punitive when it is made in accordance with the recommendation of the Chief Justice of India
  15. Ambedkar: In the Sankal Chand Sheth case, the Supreme Court quotes Dr. B.R. Ambedkar on judges’ transfer in the Constituent Assembly
  16. Dr. Ambedkar had said that a judge may be shifted from one High Court to another to strengthen the High Court by importing better talents which may not be locally available

Note4students:

Be aware of constitutional provisions and the present position on the issue as put forward by SC judgments. Keep track of the issue as it develops. SC judgments are very important from mains point of view.

In a first, SC issues contempt notice against HC Judge Karnan

  1. An unprecedented move: A 7-judge Bench of the seniormost judges of the SC issued contempt of court notice against sitting Calcutta HC judge C.S. Karnan
  2. Why? For impeding justice administration and bringing discredit to the judicial institution of the country by writing scurrilous letters about sitting and retired judges
  3. Attorney-General Mukul Rohatgi argued that it was time the apex court stopped tolerating the onslaught on the judicial institution by one of its own judges
  4. He said Justice Karnan, through his letters and conduct dating back to his years as a judge in the Madras HC, was making a “completely calculated” effort to “destroy” his parent institution
  5. If the SC was stern with the litigant, it should be sterner with one of its own who tried to harm the institution from within
  6. The SC as the apex judiciary is empowered under Articles 129 read with its extraordinary powers under Article 142 (2) to punish a member of the HC and subordinate judiciary for contempt
  7. Even a HC judge who had repeatedly made damaging remarks about his superiors and colleagues
  8. According to him the power of the SC to punish for contempt was not confined to the Contempt of Courts Act
  9. Article 129, he said, clothed the SC with the power to punish for contempt of itself. Article 142 (2) provided the court with the power to “make any order” for the “punishment of any contempt of itself”
  10. Court of Record: The A-G quoted the 1991 SC judgment in Delhi Judicial Service Association versus State of Gujarat
  11. It said the Constitution designed the SC as a Court of Record and “Article 129 thereof recognises the existing inherent power of a Court of Record in its full plenitude, including the power to punish for its own contempt and the contempt of its subordinate.”
  12. On Jan 2, 2017, the SC reiterated the point in its judgment in the Mid-Day staffers’ contempt case (Vitusah Oberoi versus Court on its own motion) when it observed that “one of the recognised attributes of a court of record is the power to punish for its contempt.”

Note4students:

Important issue and needs to be followed as it develops. There are many judgments and articles here, if you did not understand them in the first reading then read the news again! Refer to the articles below to refresh your memory.

Back2basics:

Article 129 – Supreme Court to be a court of record

The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself

Article 142(2) – Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc

Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself

Retired judges to wield the gavel again II

  1. It will be used for enhancing the strength of judges to deal with the backlog of cases for a period of two years or the age of sixty five years
  2. It will be in effect until a five plus zero pendency is achieved
  3. ‘Five plus zero’ is an initiative by which cases pending over five years are taken up on priority basis and their numbers are brought down to zero
  4. At the Conference it was resolved that all HCs shall assign top-most priority for disposal of cases which are pending for more than five years

Retired judges to wield the gavel again I

  1. Event: The Union government has agreed to a resolution passed by the judiciary in the Chief Justices and Chief Ministers Annual Conference in 2016
  2. What: To use the services of retired HC judges with proven integrity and track record to tackle pendency of cases
  3. Constitution: The provision to use the services of retired judges is open to the Chief Justices of HCs under Article 224A of the Constitution
  4. It also requires the previous consent of the President as an extraordinary measure to tide over case pile-ups

No abnormal increase in High Court vacancies: Centre

  1. What: The government has said that it has increased the sanctioned strength of High Court judges from 906 (in 2014) to 1,079 (in 2016)
  2. According to the govt there has been no abnormal increase in number of vacacncies
  3. Why: In response to the SC saying that vacancies are not being filled

[op-ed snap] Time to decongest our prisons

  1. Theme: Overcrowding of prisons in India.
  2. Background: The prisons in Delhi and nine States have an occupancy rate of 150 per cent of their capacity. The average occupancy in all jails in the country was 117.4 per cent, as of December 31, 2014.
  3. Issues: Cramped conditions in prison militate against the prisoner’s right to good health and dignity.
  4. Further, an excessive prison population creates problems of hygiene, sanitation, management and discipline.
  5. Of equal concern are the available staff strength and the level of training they receive.
  6. Another point of concern is that a little over two-thirds of India’s prisoners are undertrials. Poverty remains the main reason for this, as most prisoners are unable to execute bail bonds or provide sureties.
  7. Recent developments: In February and May this year, the Supreme Court passed a series of interim orders to the States on measures to decongest prisons.
  8. But, no State or Union Territory has prepared a plan of action yet.
  9. On the issue of large proportion of undertrials in jails, efforts are being made to invoke Section 436A of the Code of Criminal Procedure and release those undertrials on personal bonds, who have completed half of the maximum jail term specified for their offences. But much more needs to be done.

SC directions for managing jails

  1. Context: SC judgment on a suo motu PIL on conditions of inmates in Indian prisons
  2. SC: Directed the Ministry of Women and Child Development to get the manual ready by November 30 and present it in court
  3. It also ordered the Ministry of Home Affairs to receive and collate plans of action for de-congesting jails from the various States and Union Territories in the next six months
  4. Moreover, it directed the Govt to prepare a viable Plan of Action within the next six months and hand it over to the apex court by March 31, 2017

No action taken to improve condition of jails

  1. Context: SC judgment on a suo motu PIL on conditions of inmates in Indian prisons
  2. The court found that authorities have defied repeated orders of SC- the latest ones being on February 7 and May 5 of this year- to draw a viable plan of action to de-congest jails
  3. Instead, prison authorities have banked on ad hoc proposals like the construction of additional barracks or jails, and these proposals have no time limits for implementation
  4. Also, the Ministry of Women and Child Development is yet to frame a Manual for Juveniles in Custody under the recently amended Juvenile Justice (Care and Protection of Children) Act, 2015

SC says jails are overcrowded by 150 %, laments plight of inmates

“Fundamental rights and human rights of people, however they may be placed, cannot be ignored only because of their adverse circumstances, says SC”

  1. Context: SC judgment on a suo motu PIL on conditions of inmates in Indian prisons
  2. SC: It is not only tragic but also pathetic to find that prisons in the national capital, along with half a dozen States across the country, are overcrowded by over 150%
  3. Blamed Delhi for paying little or no attention to the fundamental rights of under trials and convicts,

Relieve judiciary of avoidable burden: CJI

  1. CJI Thakur: Urged the Law Ministry to devise a mechanism to relieve the judicial system of the avoidable burden
  2. Burden: Arising out of sheer apathy, indifference or incapacity of the Govt and its departments to take certain decisions
  3. Panel: Also asked the government to set up a panel, comprising former judges
  4. Why? to decide whether or not to fight a case against any citizen when the issue could be resolved outside court
  5. The CJI referred to certain unnecessary cases which could be screened before reaching court and solved at the administrative level itself

Aims and objectives of Access to Justice Project

  1. Aims: Supporting justice delivery systems in improving their capacities in order to serve the people, in empowering ordinary people to demand improved services & to access their rights and entitlements
  2. Also, encouraging innovative activities to enhance legal awareness of vulnerable populations, and their ability to seek redress
  3. Objectives: To address the legal needs of the marginalised and vulnerable sections of society, particularly women, children, and SC/ST communities, who do not have the requisite means to ensure that their rights are guaranteed

What is Access to Justice project?

  1. It is being implemented in the eight North-Eastern States, and Jammu and Kashmir, at a total cost of Rs.30 crore for five years (2012-17)
  2. The Department of Justice has been implementing Access to Justice for Marginalised People with the UNDP’s support
  3. First phase: (2009-2012) focused on both the demand as well as supply side of justice, and has reached out to two million people, apart from training 7,000 paralegals and young lawyers

State of Indian Judiciary: Rising pendency of cases and workload of judges

  1. Between 25 million and 30 million cases are estimated to be pending across the Supreme Court, 24 high courts and the subordinate courts
  2. The economic cost of the delay is pegged at 0.5% of GDP
  3. Reason for pendency: Growing number of vacancies in judicial positions
  4. Background: The Supreme Court had earlier expressed displeasure at the Centre for non-execution of the collegium’s decision to transfer and appoint chief justices and judges in high courts

Can filing of routine appeals not stop, SC asks law panel- II

  1. Bypassing HC: Also to consider the desirability of laws that allow parties, including the government, to file appeals against tribunal orders in the Supreme Court bypassing the High Courts
  2. Action: Ordered the Centre to file an Action Taken Report on the Law Commission’s recommendations & also a three-judge Bench would hear the Centre in November 2017
  3. Context: The judgment follows Chief Justice of India T.S. Thakur’s emotional appeal in the presence of Prime Minister Narendra Modi that the work burden of judges has become humanly unbearable

Can filing of routine appeals not stop, SC asks law panel- I

  1. SC: ‘No other Supreme Court presents such an undignified sight’- SC quoted in a judgment
  2. Why? To describe its chagrin at its crowded courtrooms and corridors besieged by private litigants and cash-rich companies who file routine appeals, thwarting SC’s objective to decide cases of national interest
  3. SC: The Supreme Court of India must cease to be a mere court of appeal to litigants and a daily mentor of the Government
  4. Directed the Law Commission of India to file a report within a year on whether it is permissible to stop the filing of all appeals which are not of national and public importance
  5. Context: The judgment follows Chief Justice of India T.S. Thakur’s emotional appeal in the presence of Prime Minister Narendra Modi that the work burden of judges has become humanly unbearable

Lower courts settled 21,000 pending cases last month

  1. Context: The latest figures collated by the National Judicial Data Grid
  2. Clearing: Out of the over 21 lakh cases pending for the past 10 years across India, the subordinate judiciary settled nearly 21,000 of them last month
  3. New cases: But even as the judiciary went about clearing the backlog, 5,77,834 fresh cases were filed across subordinate courts in April
  4. Nature of cases: Out of the 20,835 cases settled by the lower judiciary in April, 13,645 were criminal in nature and 7,190 civil

Most death row convicts first-time offenders

  1. Context: Death Penalty India Report
  2. Findings: Most death row inmates in India are poor, uneducated and first-time offenders
  3. A total of 241 out of the 385 death row inmates in India are first-time offenders
  4. Around 60% of the prisoners did not complete secondary education and nearly 75% belonged to economically vulnerable sections
  5. Education levels affect the extent to which the death row prisoners are able to understand details of the case filed against them
  6. Lack of education results in alienation from the system

Supreme Court is disposing pending cases at a faster rate

  1. Context: Data released by the Ministry of Law and Justice
  2. Numbers: In 2015, the top court disposed 47,424 cases compared to 45,042 in 2014 and 40,189 in 2013
  3. Measures: Regular hearings by 5 & 3-judge benches of SC being scheduled every Monday and Friday from 2pm to 4pm from 11 January onwards
  4. These are a part of CJI Thakur’s plan to reduce backlog of cases

SC refuses to disclose data on pending verdicts

  1. Context: Bringing judiciary under the ambit of RTI Act
  2. The News: The SC dismissed a plea to maintain the data on its pending judgments and make the information public under the RTI Act
  3. Background: Earlier, Central Information Commission gave a decision that SC shall disclose the number of pending or reserved judgments
  4. The Commission’s decision was upheld by a single judge of the Delhi HC
  5. Criticism: In 2001, SC itself ruled that the confidence of litigants would be shaken if judgments were kept pending for years


:( We are working on most probable questions. Do check back this section.







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