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GS Paper: Executive & Judiciary

  • Comprehensive Amendment of Criminal Laws

    The Central government has initiated the process for comprehensive amendment of criminal laws in India in consultation with all stakeholders

    Criminal Laws in India

    Indian criminal laws are divided into three major acts:

    1. Indian Penal Code, 1860: It is a comprehensive code intended to cover all substantive aspects of criminal law.
    2. Code of Criminal Procedure, 1973: CrPC defines the rules with which substantive laws can be enforced.
    3. Indian Evidence Act, 1872: It contains a set of rules and allied issues governing the admissibility of evidence in the Indian courts of law.

    Other laws

    Besides these major acts, special Criminal Laws are also passed by the Indian Parliament which includes:

    • Narcotic Drugs and Psychotropic Substances Act
    • Prevention of Corruption Act
    • Food Adulteration Act
    • Dowry Prohibition Act
    • The Defence of India Act, etc.

    Issues with these laws

    • Colonial ideas prevail in the code.
    • Some laws don’t reflect the aspirations of India’s liberal Constitution
    • It does not recognize the individual agency of citizens of free India
    • Too many laws promote patriarchal attitudes, biased against women
    • Sedition laws are misused by the state
    • Tech crimes, cyber crimes, sexual offenses need to be defined
    • Risk of excessive policing, which leads to harassment of people.
    • Need to harmonize statute books with court rulings, which have often expanded the rights of people.
    • Some provisions are disadvantageous for the underprivileged who are trapped in jail for long but favour the powerful, who get bail very easily
    • Influence of media trials on the judiciary while using the IPC.

    Why amend them?

    • The evolution of criminal laws is a continuous process.
    • They need to be made in accordance with the contemporary needs and aspirations of people.
    • Malimath Committee has called for reform in India’s criminal justice system.

    Progress made to date

    • The entire procedure is a long-drawn-out one and no time limit can be fixed or given for this legislative process.
    • Legislation of such laws is a complex and lengthy exercise given the spectrum of divergent views of stakeholders.
    • The Home Ministry is seeking suggestions from various stakeholders and judicial luminaries in this regard.

     

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  • What is Collegium System?

    The Supreme Court Collegium headed by Chief Justice N.V. Ramana has recommended to the Centre the names of six judicial officers for appointment as judges of the Delhi High Court.

    What is Collegium System?

    • The Collegium of judges is the Indian Supreme Court’s invention.
    • It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
    • In effect, it is a system under which judges are appointed by an institution comprising judges.
    • After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.
    • Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.

    Evolution: The Judges Cases

    • First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
    • However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
    • Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
    • It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
    • Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

    The procedure followed by the Collegium

    Appointment of CJI

    • The President of India appoints the CJI and the other SC judges.
    • As far as the CJI is concerned, the outgoing CJI recommends his successor.
    • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
    • The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.

    Other SC Judges

    • For other judges of the top court, the proposal is initiated by the CJI.
    • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
    • The consultees must record their opinions in writing and it should form part of the file.
    • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

    For High Courts

    • The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
    • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
    • The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
    • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

    Does the Collegium recommend transfers too?

    • Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
    • Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
    • When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
    • In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
    • However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
    • All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.

    Loopholes in the Collegium system

    • Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
    • Judges appointing Judge: The attempt made to replace it with a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
    • Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge.

    Way ahead

    • In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
    • The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
    • Even the majority opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.

     

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  • The Supreme Court fails to decide key constitutional cases in time-bound manner

    Context

    Unless the Court strives in every possible way to assure that the Constitution, the law, applies fairly to all citizens, the Court cannot be said to have fulfilled its custodial responsibility.

    Landmark judgments

    • In the last few years, the Indian Supreme Court has delivered some judgments of far-reaching consequence.
    • It declared the right to privacy a fundamental right; decriminalized consensual sexual conduct between adults of the same sex; recognized transgender persons as the third gender; and outlawed triple talaq.
    • These decisions shore up the belief in republican values like liberty and equality reified in our Constitution.

    Important cases pending in the Supreme Court

    • Constitutionality of CAA: Many petitions were filed before the Supreme Court challenging the constitutionality of the Citizenship (Amendment) Act, 2019, that provides non-Muslim communities from Bangladesh, Pakistan, and Afghanistan a fast-track route to Indian citizenship.
    • More than two years later, the matter continues to languish in the apex court.
    • Dilution of Article 370: Innumerable petitions have been filed challenging the Presidential Order of August 5, 2019, that effectually diluted Article 370 of the Constitution.
    • To date, the court has done precious little to decide this vexed question of law.
    • Constitutionality of 103rd amendment: Petitions challenging the constitutionality of the Constitution(One Hundred and Third Amendment)Act,2019 that provides reservations in public educational institutions and government jobs for economically weaker sections are also languishing in the Supreme Court.
    • Challenges to the electoral bond scheme: The Supreme Court has failed to accord proper hearing in the last four years to the constitutional challenge to the electoral bonds scheme.

    Conclusion

    Unless the Court strives in every possible way to assure that the Constitution, the law, applies fairly to all citizens, the Court cannot be said to have fulfilled its custodial responsibility”.

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  • Supreme Court upholds validity of OBC quota in NEET admissions

    The Supreme Court has pronounced its decision upholding the constitutional validity of providing 27% quota to Other Backward Classes (OBC) in NEET All India Quota (AIQ) seats for UG and PG medical courses.

    What is the issue?

    • The petitioners, several NEET aspirants, had argued that since the top court had limited reservation to 50% in the Indira Sawhney judgment, the government should have first applied to the court before tinkering with the quota calculations.
    • The court further confirmed that there was no need for the Centre to have got the prior consent of the Supreme Court before introducing OBC quota in the AIQ seats under NEET.
    • The court reasoned that material affluence of certain individual members of a socially backward group or ‘creamy layer’ could not be used against the entire group to deny it the benefits of reservation.

    What is the background of this case?

    • The government introduced OBC/EWS quota before the counselling of NEET counselling.
    • The candidates applying for NEET PG were not provided any information on the distribution of the seat matrix.
    • Such information is provided by the counselling authority only after the counselling session is to begin.

    Key observations of the Apex Court

    • The SC has held that reservation is not at odds with merit.
    • It observed that ‘merit’ could not be narrowed to the limit of success in open competitive exams.
    • Merit of a person is a sum total of “lived experiences” and his or her struggle to overcome cultural and social setbacks, observed the SC.

    Why is this a landmark judgment?

    • Merit cannot be reduced to narrow definitions of performance in an open competitive examination, which only provides formal equality of opportunities , said the SC.
    • Current competencies are assessed by competent examinations but are not reflective of excellence, capability and potential of an individual.

    Major justifications for Reservations

    • Exams did not reflect how social, economic and cultural advantages that accrued to certain classes contributed to their success in them, the court noted.
    • Examinations are not a proxy for merit.
    • Merit should be socially contextualized and re-conceptualized.
    • Reservation is not at odds with merit but furthers its distributive impact, Justice Chandrachud observed.

    Constitutionality of the decision

    • The court held that the power of the State governments to provide reservations under Article 15 (4) and (5) of the Constitution was not an “exception” to Article 15 (1).
    • It enshrines the mandate that “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them”.
    • The court held that the power of the State government to craft reservations for the OBC amplified the principle of “substantive equality” manifested through Article 15 (1).

    Implications: Victory for States

    • In a significant victory for States such as Tamil Nadu, the court confirmed their power to make “special provisions” and provide reservations in educational admissions, whether in aided or unaided institutions.
    • TN provides government jobs for the advancement of “any socially and educationally backward classes of citizens or for the SCs and STs”.

     

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  • English is the language of Court: Gujarat HC

    A Division Bench of the Gujarat High Court has asked a convict to speak only in English as that was the language in the higher judiciary referring to Article 348 of the Constitution which mandates that the language of the High Court would be English.

    What is Article 348?

    • It provides for languages to be used in the Supreme Court and in the High Courts and for Acts, Bills, etc
    • Article 348 (1) provides that all proceedings in the Supreme Court and in every High court shall be in English Language until Parliament by law otherwise provides.
    • Under Article 348 (2), the Governor of the State may, with the previous consent of the President, authorize the use of the Hindi language or any other language used for any official purpose of the State.
    • It states that in the proceedings of the High Court having its principal seat in that State provided that decrees, judgments or orders passed by such High Courts shall be in English.

    When is use of other languages permitted?

    • Section 7 of the Official Languages Act, 1963, provides that the use of Hindi or official language of a State in addition to the English language may be authorized.
    • This has to be done with the consent of the President of India, by the Governor of the State for purpose of judgments etc. made by the High Court for that State.

     

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  • ‘Indianizing’ the Legal System and SC’s Views

    At least two Supreme Court judges have in the past few months openly expressed the need to “Indianize” the legal system.

    What is the news?

    • This week, Justice S. Abdul Nazeer underscored the need to embrace the great legal traditions as per Manu, Kautilya, Katyayana, Brihaspati, Narada, Parashara, Yajnavalkya and other legal giants of ancient India.
    • Continued neglect of their great knowledge and adherence to alien colonial legal system is detrimental to the goals of our Constitution and against our national interests, he said.
    • He emphasized the need for Indianization of the legal system to decolonize the Indian legal system.
    • He concluded that this colonial legal system is not suitable for the Indian population.

    Background of the case

    Then CJI P.N. Bhagwati in the M.C. Mehta Case way back in 1986 has said that-

    • We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country.
    • We no longer need the crutches of a foreign legal order.
    • We are certainly prepared to receive light from whatever source it comes from, but we have to build up our own jurisprudence.

    Indianization of Judiciary

    • Last month, CJI N.V. Ramana called for the “Indianization” of the legal system to provide greater access to justice to the poor as the “need of the hour”.
    • CJI emphasized this as an adaptation to the practical realities of our society and localize our justice delivery systems.
    • For example, parties from a rural place fighting a family dispute are usually made to feel out of place in the court, the CJI clarified.

    Major suggestions by CJI:

    (A) Simplification

    • The simplification of justice delivery should be our pressing concern.
    • It is crucial to make justice delivery more transparent, accessible and effective.
    • Procedural barriers often undermine access to justice.
    • The Chief Justice said both judges and lawyers have to create an environment which is comforting for the litigants and other stakeholders.

    (B) Alternate dispute mechanisms

    • The CJI said alternate dispute mechanisms like mediation and conciliation would go a long way in reducing pendency, unnecessary litigation and save resources.

    Major suggestions by CJI:

    (A) Simplification

    • The simplification of justice delivery should be our pressing concern.
    • It is crucial to make justice delivery more transparent, accessible and effective.
    • Procedural barriers often undermine access to justice.
    • The Chief Justice said both judges and lawyers have to create an environment that is comforting for the litigants and other stakeholders.

    (B) Alternate dispute mechanisms

    • The CJI said alternate dispute mechanisms like mediation and conciliation would go a long way in reducing pendency, unnecessary litigation and save resources.

    Recent moves of Indianization

    • Supreme Court judgments show that the Indian legal system had made an early start at consciously getting rid of the “crutches” of colonial influence.

    (1) General principles laid by the SC

    • The evolution of laws in India has been through legislation and the binding precedents of the Supreme Court under Article 141 of the Constitution.
    • Article 142 of the Constitution of India deals with the Enforcement of decrees and orders of the Supreme Court.

    (2) Public Interest Litigation

    • The public interest litigation mechanism is truly Indian.

    (3) Reference to Indian texts

    • Several judgments since the 1980s refer to the works of Manu and Kautilya.
    • In the privacy judgment, Justice S.A. Bobde (retired), referred to how “even in the ancient and religious texts of India, a well-developed sense of privacy is evident”.
    • He mentions that Kautilya’s “Arthashastra prohibits entry into another’s house, without the owner’s consent”.

    Issues with Ancient Texts

    • In the Sabarimala Case, the court pointed to the Manusmriti to observe that in these “ancient religious texts and customs, menstruating women have been considered as polluting the surroundings”.
    • It went on to hold that practices that legitimize menstrual taboos, due to notions of purity and pollution, limit the ability of menstruating women to attain the freedom of movement and the right of entry to places of worship.

    Way forward

    • It is time for courts to wake up from their colonial stupor and face the practical realities of Indian society.
    • Rules and procedures of justice delivery should be made simple.
    • The ordinary, poor, and rural Indian should not be scared of judges or the courts.

     

     

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  • Plea in Supreme Court seeks ‘Uniform Judicial Code’ for HCs

    A petition was filed in the Supreme Court to implement a “Uniform Judicial Code (UJC)” for High Courts across the country to adopt a uniform set of procedures, especially for virtual courts.

    What is the PIL about?

    • The petition urged the apex court to take appropriate steps to adopt uniform procedure for case registration, use common judicial terms, phrases and abbreviations and make the court fee uniform.
    • It has, alternatively, sought a direction to the Law Commission of India to prepare a report in consultation with the HC in this regard.

    Why need UJC?

    • Matter of Equality: Judicial equality is a matter of constitutional right, its differentiation based on the jurisdiction of courts violates the right to equality.
    • Different nomenclatures: All the 25 High Courts have different usage of the phrases when it comes to identifying different cases.
    • Diverse procedures: The PIL plea highlighted how different High Courts follow different procedures in matters pertaining to virtual courts, started during the pandemic.
    • Different fees: Unequal court fees in different states discriminate among citizens based on their place of birth and residence. Moreover, it promotes regionalism; hence it is a clear violation of Articles 14-15.

    Way forward: Bringing in digitized Judiciary systems

    • The judiciary needs to develop a well-defined framework supported by an accessible platform and direct e-court system in India.
    • It also needs to harp on advanced infrastructure to run an e-court system that eradicates the digital divide, simultaneously upping judicial functioning.
    • While the digitized judicial systems give some semblance of convenience for the people who interact with the court, digitization also brings threats of intrusion etc.

     

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  • Issues with summoning CEC, EC to PMO

    Context

    The Chief Election Commissioner and two Election Commissioners were summoned by the PMO to attend a meeting with the Principal Secretary to the PM.

    Why the meeting raises questions?

    • The PMO summoning or “inviting” not just the CEC but the full bench is in violation of the Constitution, irrespective of how important or urgent the issue.
    • Violation of the principle of distancing from executive: When a person is appointed as CEC or EC, that person has to resign from his executive post in order to adhere to important constitutional principle of distancing from the executive/government.
    • The executive could appoint a person to these posts but could not order them, or remove me because of the constitutional scheme of things.
    • Violation of independence: An independent ECI is a gift of the Constitution to the nation. Free and fair and credible elections are sine qua non of the EC.
    • The Supreme Court has repeatedly stressed this point, calling it part of the basic structure of the Constitution.
    • Violation of warrant of precedence: The CEC is very high in the warrant of precedence — ninth, while the PS to PM is 23rd.
    • How can such a high constitutional functionary be summoned to attend a meeting with an officer, howsoever high and mighty?
    • It raises suspicions:  A meeting of the PS to the PM, formal or informal, online or in the PMO or ECI, just before elections raises unnecessary suspicions.

    Conclusion

    This incident is a transgression that should not happen again. The distance of an arm’s length in interactions between institutions envisaged in the Constitution is sacrosanct. It should not only be maintained but also “seen” to be maintained.

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  • Judges cannot be shielded from citizens’ questions

    Context

    Recently, the Chief Justice of India, in his own mild way, protested against the attack on judges. One can understand his pain and agony, but he too knows that judges do not, and should not live in ivory towers.

    Questioning and analysing actions of the judiciary

    • As the judiciary is one of the pillars of democracy, and the Constitution entrusts judges with the task of protecting the constitutional rights of the people, especially the right to life and liberty, the consumer of justice has every right, and would be fully justified in critically examining, and commenting upon each and every word of the judges spoken or written, howsoever unpalatable it may be.
    • It appears that it is in the above spirit that MP Shashi Tharoor, speaking in Parliament on the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill said that the judiciary had failed to stem the tide of militant majoritarianism.
    • He alleged that the “judiciary’s inaction almost always favours those in power”. 
    • He has raised pertinent questions, and has brought out the glaring failings of the judiciary in matters concerning the protection of the constitutional rights of citizens. 
    • Pendency of important cases such as the abrogation of Article 370 of the Constitution, the Citizenship Amendment Act, electoral bonds, and many petitions under the preventive detention laws highlights this issue.

    Issues in functioning of collegium system

    • As regards the functioning of the collegium system, judges are transferred without any seeming justification, and in some cases re-transferred, justifying neither their initial transfer nor the re-transfer.
    • Some elevations of judges raise eyebrows, while some are ignored.
    • Should the collegium not be more transparent than it has been in the past in the matter of the elevation and transfers of judges?

    Conclusion

    Judges cannot be shielded from citizens’ questions. After all, as a consumer of justice, the citizen has a right to know.

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  • In news: Two principles of Justice

    This newscard is an excerpt of the original article published in TH.

    Note: This article is of extreme theoretical nature. But it leaves scope for many vague questions for prelims as well as mains where most of us go clueless.

    Two principles of Justice

    • The concept, so-called, of “two principles of justice”, is synonymous with the name of John Rawls, a highly influential American liberal political philosopher of the last century.
    • The concept of two principles forms an encapsulation of the core principles of:
    • Freedom and equality embodied in the constitutions of any contemporary liberal democratic society
    • As such, they have acquired pre-eminence in a wide range of academic disciplines and in the arena of public policymaking.

    What are the two principles?

    • The first of Rawls’ two principles says that every citizen has the same claim to a scheme of equal basic liberties, which must also be compatible with those of every other citizen.
    • It enumerates an extensive list of basic civil and political rights, including a person’s freedom of conscience, expression and association; the right to a basic income; and the right to exercise the franchise.
    • Their resonance with the practical world of politics needs no emphasis; consider the chapter on fundamental rights in any constitution.
    • The second of Rawls’ two principles grapples with the underlying inequalities of social and economic institutions.

    How can these be reasonably justified to free and equal citizens?

    • In order to be morally defensible, the institutions must satisfy two conditions.
    1. First, they must guarantee fair equality of opportunities for competition to positions of public office and employment.
    2. Second, social and economic inequalities must be arranged in a manner that they work to the greatest benefit of the least advantaged members of society.
    • This latter postulate is Rawls’ famous “difference principle”.

    Significance of this principle

    • The political significance of Rawls’ two principles of justice obtains equally in the relative weight and primacy he assigns to their different components.
    • Between them, the first principle is accorded absolute priority over the second.
    • That is to say, the primacy of the equal basic liberties of citizens is non-negotiable in a democratic society.
    • The entitlement of each to the various liberties is as critical as they are universal and non-discriminatory.
    • Within the second principle, the first part takes precedence over the second.
    • In other words, public institutions could not appear legitimate in the eyes of citizens unless everybody could reasonably expect to enjoy the fruits of fair equality of opportunities.

     

    Try this question from CSP 2020:

    Q. One common agreement between Gandhism and Marxism is

    (a) The final goal of a stateless society

    (b) Class struggle

    (c) Abolition of private property

    (d) Economic determinism

     

    [wpdiscuz-feedback id=”yuea3fd1vc” question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

     

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