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GS Paper: Executive & Judiciary

  • Representation of Women in Judiciary

    Attorney-General has told the Supreme Court that more women judges in constitutional courts would certainly improve gender sensitivity in the judiciary.

    Q.Women judges could bring a more comprehensive and empathetic perspective of gender sensitivity in the judiciary. Discuss.

    Women in Judiciary: A dismal figure

    • The Supreme Court has only two women judges as against a sanctioned strength of 34 judges.
    • There has never been a female Chief Justice. This figure is consistently low across the higher judiciary.
    • There are only 80 women judges out of the sanctioned strength of 1,113 judges in the High Courts and the Supreme Court.
    • Only two of these 80 women judges are in the Supreme Court and the other 78 are in various High Courts, comprising only 7.2% of the number of judges.
    • There are six High Courts — Manipur, Meghalaya, Patna, Tripura, Telangana, and Uttarakhand — where there are no sitting women judges.

    A short timeline

    • The first female Judge appointed in Supreme Court was Justice M. Fathima Beevi from Kerala in 1987.
    • She was later followed by Justice Sujata V. Manohar from Maharashtra in 1994 and in the year 2000, Justice Ruma Pal was appointed from West Bengal.
    • And in the year 2010, Justice Gyan Sudha Misra from Bihar was appointed.
    • In 2014, Justice Ranjana Desai from Mumbai was appointed and currently, Justice R. Banumathi from Tamil Nadu is the only woman judge in Supreme Court.

    (Note: This data might be useful for State PSCs or other exams. UPSC aspirants need not remember this.)

    What did the A-G say?

    • Improving the representation of women could go a long way towards a more balanced and empathetic approach in cases involving sexual violence.
    • Judges need to be trained to place themselves in the shoes of the victim of sexual violence while passing orders, said the AG.
    • There is a dearth of compulsory courses in gender sensitization in law schools.
    • Certain law schools have the subject either as a specialization or as an elective.

    Why need more women in Judiciary?

    • The entry of women judges into spaces from which they had historically been excluded has been a positive step in the direction of judiciaries being perceived as being more transparent, inclusive, and representative.
    • By their mere presence, women judges enhance the legitimacy of courts, sending a powerful signal that they are open and accessible to those who seek recourse to justice.
    • They could contribute far more to justice than improving its appearance: they also contribute significantly to the quality of decision-making, and thus to the quality of justice itself.
    • Women judges bring those lived experiences to their judicial actions, experiences that tend toward a more comprehensive and empathetic perspective.
    • By elucidating how laws and rulings can be based on gender stereotypes, or how they might have a different impact on women and men, a gender perspective enhances the fairness of the adjudication.

  • Protecting Article 32

    The article deals with the issue of recourse to Article 32 for violation of Fundamental Rights. But it is subject to fundamental principles of administration of justice.

    Context

    • The Chief Justice of India is reported to have stated during the hearing of journalist Siddique Kappan’s bail matter, that the Court was trying to “discourage” recourse to Article 32.

    Recourse under Article 32 is not absolute

    • The apex judicial process shows clearly that the Court regards Article 32 as a judicial power subject to the fundamental principles of administration of justice.
    • The Supreme Court has already extended rules and doctrines such as laches (delays) or res judicata (a matter already decided by a competent court) or any other principle of administration of justice.
    • Article 32 keep open “the doors of this court” and requires the state not to “put any hindrance” to a person seeking to approach the Court.
    • However, the Court must ignore all laws of procedure, evidence, limitation, res judicata and other provision.
    • The Supreme Court has also said that faith “must be inspired in the hierarchy of Courts [ Recourse under Article 226 should be sought before approaching the SC] and the institution as a whole” and not” only in this Court alone”.
    • So, even if there is a constitutional right to remedies it remains subject to the discipline of judicial power and process.

    New facets of Article 32

    • The Supreme Court has also discovered new facets of Article 32.
    • As early as 1950, it has ruled that powers under Article 32 are not limited to the exercise of prerogative writs.
    • In 1987 the Court ruled that it has powers to rule for compensation of violation of fundamental rights.
    • In 1999 it said that this power extended to the rectification of its own mistakes or errors.

    Comparing Article 226 and Article 32

    • Article 226 is the very dimension; the high court’s vast jurisdiction technically casts no duty on them to enforce fundamental rights.
    • They have the discretion to act or not to; in contrast, the Supreme Court must.
    • Fourth, Article 32 is not absolute, the Supreme Court decides on what “appropriate proceedings” should be for it to be so moved.
    • But the Court may not prescribe any process as it likes but only that process which preserves, protects and promotes the right to constitutional remedies.

    Need for effective bail system

    • The just demand for an expeditious and effective bail system stems from manifest discrimination in bail .
    • In several instances, one case is fast-tracked whereas others are consigned to slow-moving judicial action, even when rights to life and health are endangered.
    • Scandalous judicial delays, measures of decongestion and diversion, and a bold resolution of “who watches the watchman” syndrome now demand urgent apex response.

    Consider the question “Seeking remedy from the Supreme Court for the violation of fundamental rights under Article 32 is also a fundamental right. However, enforcement of it is not absolute. In light of this, examine the challenges in its enforcement by the Supreme Court.”

    Conclusion

    Article 32 makes the apex court into a “people’s court”. And future historians should not be able to conclude that the Court deliberately dealt deathblows to this “soul” of the Constitution, as Babasaheb Ambedkar described Article 32.

  • What is Recusal of Judges?

    A Justice of the Supreme Court has recused himself from hearing a petition that sought action against the Andhra Pradesh CM for levelling political allegations against an AP High Court judge.

    Can you list down some basic principles of judicial conduct?

    Independence, Impartiality, Integrity, Propriety, Competence and diligence and Equality are some of them as listed under the Bangalore Principles of Judicial Conduct.

    What is the Recusal of Judges?

    • Recusal is the removal of oneself as a judge or policymaker in a particular matter, especially because of a conflict of interest.
    • Recusal usually takes place when a judge has a conflict of interest or has a prior association with the parties in the case.
    • For example, if the case pertains to a company in which the judge holds stakes, the apprehension would seem reasonable.
    • Similarly, if the judge has, in the past, appeared for one of the parties involved in a case, the call for recusal may seem right.
    • A recusal inevitably leads to delay. The case goes back to the Chief Justice, who has to constitute a fresh Bench.

    Rules on Recusals

    • There are no written rules on the recusal of judges from hearing cases listed before them in constitutional courts. It is left to the discretion of a judge.
    • The reasons for recusal are not disclosed in an order of the court. Some judges orally convey to the lawyers involved in the case their reasons for recusal, many do not. Some explain the reasons in their order.
    • The decision rests on the conscience of the judge. At times, parties involved raise apprehensions about a possible conflict of interest.

    Issues with recusal

    • Recusal is also regarded as the abdication of duty. Maintaining institutional civilities are distinct from the fiercely independent role of the judge as an adjudicator.
    • In his separate opinion in the NJAC judgment in 2015, Justice Kurian Joseph highlighted the need for judges to give reasons for recusal as a measure to build transparency.
    • It is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case, he ruled.

  • Issues with legal language in India

    Context

    •  Recently, a PIL was filed in the Supreme Court regarding the use of legal language.
    • Reacting to the plea, the Supreme Court has asked the Ministry of Law and Justice and Bar Council to respond.

    Wha the PIL is about?

    • The PIL (Subhash Vijayran vs Union of India) wants the legislature and executive to use plain English in drafting laws, the Bar Council to introduce plain English in law curricula and the Supreme Court to only allow concise and precise pleadings.
    • He begins the synopsis to the writ petition in the following way. “The writing of most lawyers is: (1) wordy, (2) unclear, (3) pompous and (4) dull.

    Way forward

    • When asking the Ministry of Law and Justice and Bar Council to respond, the Chief Justice of India referred to Anthony Burgess’s book (1964) Language Made Plain.
    • George Orwell set out six principles, which could be used while drafting.
    • Copy editors routinely use these principles, but not the judiciary.
    • The Vidhi Centre for Legal Policy produced a manual on plain language drafting in 2017.

    Conclusion

    The Ministry of Law and Justice make use of the opportunity provided by the PIC to come up with the set of principles to make the legal language easier for all.

  • Taxes and the fundamental rights

    The article deals with the issue of a petition challenging the imposition of 5% GST on mobility aids used by disabled citizens.

    Background

    • The petitioner, in Nipun Malhotra vs. Union of India, argued in Supreme Court that the tax imposed on mobility aids used by disabled citizenswas patently discriminatory.
    • A decision to impose a tax, the Court said, was a matter of policy over which the judiciary ought not to ordinarily interfere.
    • In adjourning the case, it suggested that the petitioner exhaust his options by submitting his grievances to the GST Council, which is the governing body responsible for determining which products are taxed, and at what rate.

    Should the Courts test the legitimacy of the tax

    • It might be keen to ensure that the judiciary does not sit on judgment over matters that fall within the domain of legislative and executive competence.
    • There is nothing inherently distinct about taxing laws; they are in no way plenary and unamenable to judicial review.
    • Quite to the contrary, taxes have a direct bearing on how society is arranged.
    • The nature and rate of tax imposed on a product can impinge both on a person’s freedom and on a person’s right to be treated with equal care and concern.
    • Therefore, it ought to be well within an independent judiciary’s province — as the top courts in Canada and Colombia, among others, have recently held — to examine whether or not an imposition of a tax violates a fundamental right.

    Why government impose tax on mobility aids?

    • Until the advent of the GST, mobility aids were almost entirely immune from indirect taxes.
    • In virtually every State, exemptions were granted on the payment of value-added-tax on such goods.
    • However, under GST 18% tax was imposed on these devices and subsequently reduced to 5%.
    • The government claims that it cannot relieve mobility aids from taxation, because to do so will disincentivise domestic manufacturers.
    • Domestic manufacturers can claim “input tax credit” on taxes paid on raw material in the process of manufacturing when it remits the levy collected from the eventual purchaser of the product.
    •  The State’s argument is that in the absence of a levy of GST on the final product, the manufacturer will be burdened with input taxes.
    • Since it cannot claim any credit for those taxes paid, the prices of the final product would have to be concomitantly higher.
    • As a result, the manufacturer will be placed in a relative position of disadvantage to foreign makers.

    Issues with the government’s argument

    • This argument, though, suffers from at least two fallacies. First, a reading of the various notifications issued by the GST Council shows that many other products that are essential to human needs are exempt from tax.
    • Second, that the grant of an exemption in cases such as these would disentitle manufacturers from claiming input tax credit is a matter of legislative design.

    Way forward

    • Parliament can find other ways to ensure that domestic manufacturers are granted credit for the taxes that they pay on inputs.
    • A decision taken on exempting goods from taxation is a matter of classification.
    •  Given that the classification rests on a state of disability, it must be seen, on any sensible consideration of our equality jurisprudence, as, at least facially, inequitable.
    • The onus must, therefore, rest on the government to show the Court that it had cogent reasons for treating these goods as distinct from other commodities that are exempt from tax.
    • A failure to discharge this onus ought to render the levy illegitimate.
    • The GST Council can take a leaf out of the books of Canada and Australia, and grant a complete exemption on the levy imposed on mobility aids.

    Conclusion

    It is time we recognised that an unreasonable levy can deeply compromise fundamental human needs. To free taxing statutes from the ramparts of the Constitution is to risk the entrenching of inequality.

  • Pardoning Powers of Governor

    The Supreme Court has recently said that the investigation into the conspiracy behind Ex-PMs assassination in 1991 need not deter the Governor from deciding the plea for pardon of convicts.

    What did the court say exactly?

    • The court made it clear that it was reluctant to exercise its jurisdiction when the Governor was already seized of convict’s plea for a pardon under Article 161 of the Constitution.

    Try this PYQ now:

    Q.Which of the following are the discretionary powers given to the Governor of a State?

    1. Sending a report to the President of India for imposing the President’s rule
    2. Appointing the Ministers
    3. Reserving certain bills passed by the State Legislature for consideration of the President of India
    4. Making the rules to conduct the business of the State Government

    Select the correct answer using the code given below:

    (a) 1 and 2 only

    (b) 1 and 3 only

    (c) 2, 3 and 4 only

    (d) 1, 2, 3 and 4

    Pardoning Powers of Governor

    • Article 161 deals with the Pardoning Power of the Governor.
    • The Governor can grant pardons, reprieves, respites and remissions of punishments or suspend, remit and commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the state extends.
    • The Governor cannot Pardon a Death Sentence. (The President has the power of Pardon a death Sentence).
    • The Governor cannot grant pardon, reprieve, respite, suspension, remission or commutation in respect to punishment or sentence by a court-martial. However, the President can do so.

    Back2Basics:

    • Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
    • Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
    • Reprieve: means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
    • Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
    • Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty-year rigorous imprisonment to ten years.

  • Nyay Kaushal E-resource Centre

    CJI has inaugurated the first-ever e-resource centre and virtual court for traffic and transport to enable speedy justice for litigants, called ‘Nyay Kaushal’, at Nagpur.

    Must read edition:

    [Burning Issue] Judiciary in Times of COVID-19 Outbreak

    Nyay Kaushal Centre

    • It is a first of its kind e-resource centre in India that will facilitate electronic filing of cases in the Supreme Court, High Courts and district courts across the country.
    • It is meant to be a step at mitigating various inequalities, being connected to the Supreme Court, the High Courts and the Taluka Courts.
    • It will provide the easiest way of filing court matters by utilising technology. It will provide benefits in saving time, avoidance of exertion, travelling long distances, and a saving in costs.
    • The virtual court will be working from Katol in Nagpur district.

    It’s working

    • The virtual court can deal with all traffic challan cases from every corner of Maharashtra online.
    • It will be possible for the litigants to pay the fine and get the traffic challan case disposed of with the click of a button on a smartphone or a computer.

    Why need such a mechanism?

    • The biggest problem that came with the pandemic was that access to justice became conditional on access to technology.
    • This has ended up creating a divide between the ones who can afford technology and ones who cannot.
    • With the aid of virtual courts, our system of justice does not suffer and the rule of law continues to be maintained.

  • Live-streaming of Courts

    Attorney General of India has pushed for live-streaming court proceedings to make hearings accessible to all. But CJI sounded a cautionary note, saying it was susceptible to “abuses.”

    Why such demands?

    • In a first in India, the Gujarat High Court has begun live streaming of Court Proceedings on YouTube.
    • The issue of live-streaming came up as a Special Bench led by the CJI was taking stock of the virtual court system initiated soon after the pandemic lockdown.

    Live-streaming of Court

    • Justice Chandrachud was one of the three judges on the Bench that gave the verdict on live-streaming in September 2018.
    • In fact, he had noted in his separate opinion that live-streaming of proceedings would be the true realization of the “open court system.”
    • His suggestions were later adopted as guidelines in the September 2018 judgment.

    Why there should be live-streaming?

    • Improved accountability: Live-streaming of court proceedings would serve as an instrument for greater accountability and formed part of the Code of Criminal Procedure, 1973.
    • Living up the expectation of Constitution: Live Streaming of Court proceedings is manifested in public interest. Public interest has always been preserved through the Constitution article 19 and 21
    • Empowering the masses: It will enable the legal system to deliver on its promise of empowering the masses.
    • More transparency: It will encourage the principle of open court and reduce dependence on second-hand views. It will effectuate the public’s right to know. 
    • This would inspire confidence in the functioning of the judiciary as an institution and help maintain the respect that it deserved as a co-equal organ of the state.
    • Academic help: Live streaming may also be a help for academic purposes.

    Issues with live-courts

    The Parliamentary Standing Committee (PSC) of the Department of Personnel, Public Grievances and Law and Justice have tabled its report on the functioning of Virtual Courts and Digitization of Justice Delivery in Parliament.

    Following are the four key considerations and recommendations of the committee as far as mainstreaming of virtual courts is concerned:

    (1) The question of access:

    • A large number of litigants and advocates lack internet connectivity and requisite infrastructure and means to participate in virtual hearings and the process. This has serious implications.
    • The obvious one being that a large chunk of our citizenry is vulnerable to being excluded from the process of justice delivery owing to factors beyond their control.
    • The committee also opined that the judiciary considers solutions such as mobile video conferencing facilities to allow for meaningful participation from those living in remote geographies.

    (2) The degree of comfort:

    • A highly underrated but equally consequential factor is whether everyone, even if access to reliable internet connectivity is universal, is comfortable and well versed with the new tools and mediums of justice delivery.
    • Big, well-to-do law firms and advocates in urban areas would face no issues as compared to those participants in rural areas given the digital divide.

    (3) The idea of open courts itself:

    • Virtual courts allegedly threaten the constitutionality of Court proceedings and undermine the importance of Rule of law which forms a part of the basic structure of the Constitution.
    • Expressing concern over the opaqueness of such hearings, critics state that virtual courts are antithetical to the open court system given the limited access that they allow for.

    (4) The question of Privacy and Data Security:

    • This is where the report makes some interesting and innovative suggestions vital to the performance of any digital justice delivery mechanism.
    • It also took note of the fact that most virtual court proceedings in India currently take place using third-party software or platforms and a few of them have already been rejected earlier on grounds of being unsafe to use.
    • The committee noted how courts across the world have had instances of intrusion and data privacy or security concerns while adapting to an entirely virtual mode of conducting hearings.

    Still, digital records are necessary

    • Litigants depend on the information provided by lawyers about what has transpired during the course of hearings.
    • When the description of cases is accurate and comprehensive; it serves the course of open justice.
    • Again, if a report on a judicial hearing is inaccurate, it impedes the public’s right to know.

    Best examples

    • Internationally, constitutional court proceedings are recorded in some form or the other.
    • In Australia, proceedings are recorded and posted on the high court’s website.
    • Proceedings of the Supreme Courts of Brazil, Canada, England and Germany are broadcast live.
    • The Supreme Court of the US does not permit video recording, but oral arguments are recorded, transcribed, and available publicly.
    • And democracies aside, in China, court proceedings are live-streamed from trial courts up to the Supreme People’s Court of China.

    Significance of open-courts

    • India stands alone amongst leading constitutional democracies in not maintaining audio or video recordings or even a transcript of court proceedings.
    • Court hearings can be turning points in the life of a nation: ADM Jabalpur comes readily to mind. More recently, there is any number of cases where the Supreme Court’s judgments have changed citizens’ lives.
    • Ayodhya, Aadhaar, Section 377, Sabarimala, NRC and the triple talaq judgments are among them.

    Various moves for accessibility

    • Over the last few years, the Supreme Court has taken steps to make justice more accessible. The Court started providing vernacular translations of its judgments.
    • Non-accredited journalists were permitted to live-tweet court proceedings. During the lockdown, journalists have been permitted to view virtual court proceedings in real-time.

    Way forward

    • There should be live-streaming cases of constitutional and national importance as a pilot project, including Constitution Bench cases.
    • Matrimonial cases and those involving national security could be excluded.
    • There must be a reasonable time-delay (say 10 minutes) between the live court proceedings and the broadcast to ensure any information which ought not to be shown, as directed by the court, can be edited from being broadcast.
    • The judiciary must also employ a press officer to liaise with the media, and issue simultaneously one or two page summaries of its judgments to facilitate greater public understanding.
    • There has to be a greater reliance on written briefs and the significance accorded to them, time limits for oral arguments, and a greater emphasis on preparation in advance.

  • Hate speech in India

    Context

    • Sudarshan TV case will have several implication for the regulation of free speech.
    • In principle, Indian law allows prior restraint on broadcasting. This prior restraint should be used sparingly and must meet a high constitutional bar.
    • Indian law also allows regulation for hate speech.

    Maintaining the equilibrium

    • The government feared that if it did not have the power to regulate speech, it will threaten the stability of society.
    • The hate and violence got the state to betray its own liberal commitments
    • Liberals never acquired the confidence of people to let go of  state regulation in the name of defending the republic.
    • The spread of hate speech and its political consequences are now infinitely greater.
    • The situation, where communication mediums are used to target communities, are not outside the realm of possibility.
    •  It is for this reason we still have so many restraints on speech.

    Challenges in regulation of speech

    • Almost every regulation of speech, no matter how well intentioned, increases the power of the state.
    • But now, in the current context, empowering the state is a frightening prospect as well.
    • The issue is fundamentally political and we should not pretend that fine legal distinctions will solve the issue.
    • An over-reliance on legal instruments to solve fundamentally social and political problems often backfires.

    3 lessons to learn

    • 1) The more the state regulates, the more it politicises the regulation of speech, and ultimately legitimate dissent will be the victim.
    • 2) There is a whole bunch of laws and regulation already on the books for regulation, these have been ineffective because of institutional dysfunction.
    • 3) Social media operates on a set of monetising incentives. But broadcast media is also based on political economy.
    • The granting of licences has always been a political affair; the pricing structures set by the TRAI have perverse consequences for quality and competition.
    • Our current media landscape is neither a market nor a state. The more the underlying political economy of media is broken, the less likely it is that free speech will stand a chance.

    Way forward

    • Not post facto content regulation, but a market structure that can help provide more checks and balances.
    • Not let bad media drive out good.
    • The Court suo motu setting up a regulatory framework does not inspire confidence. It is not its jurisdiction to begin with.
    •  This is something for Parliament to think about.

    Conclusion

    The government must walk the tight rope of regulation and safeguarding the rights of all.

  • What is Queen’s Counsel?

    India has suggested Pakistan appointing a Queen’s Counsel for the Kulbhushan Jadhav case to ensure a free and fair trial.

    Queen’s Counsel

    • In the UK and in some Commonwealth countries, a Queen’s Counsel during the reign of a queen is a lawyer who is appointed by the monarch of the country to be one of ’Her Majesty’s Counsel learned in the law’.
    • The position originated in England.
    • Some Commonwealth countries have either abolished the position, or re-named it so as to remove monarchical connotations, for example, ’Senior Counsel’ or ’Senior Advocate’.
    • Queen’s Counsel is an office, conferred by the Crown that is recognised by courts.
    • Senior Advocate Harish Salve earlier this year has been appointed as Queen’s Counsel (QC) for the courts of England and Wales.