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GS Paper: Executive & Judiciary

  • Case for presidential system

    The article brings out the flaws in the parliamentary system of government in India and makes the case for the parliamentary system.

    Problems with our parliamentary system

    • Our parliamentary system has created a unique breed of legislator, largely unqualified to legislate.
    • Those legislators has sought election only in order to wield executive power.
    • It has produced governments dependent on a fickle legislative majority.
    • Fickle majority leads the government to focus more on politics than on policy or performance.
    • Current system has distorted the voting preferences of an electorate that knows which individuals it wants to vote for but not necessarily which parties.
    • It has given rise to parties that are shifting alliances of selfish individual interests, not vehicles of coherent sets of ideas.
    • It has forced governments to concentrate less on governing than on staying in office, and obliged them to cater to the lowest common denominator of their coalitions.

    Problems with party system in India

    •  Parliamentary system, devised in Britain — is based on traditions which simply do not exist in India.
    • The parties in England are clearly defined, each with a coherent set of policies and preferences that distinguish it from the next.
    • In India, a party is all-too-often a label of convenience which a politician adopts and discards frequently.
    • So, a politician changing a party is not treated as an unusual event in India.
    • In the absence of a real party system, the voter chooses not between parties but between individuals.
    • The candidates are usually chosen on the basis of their caste, their public image or other personal qualities.
    • So, voters vote for a legislature not to legislate but in order to form the executive.

    4 Problems with choosing executive from Parliament

    • 1) It limits executive posts to those who are electable rather than to those who are able.
    • Though he can bring some members in through the Rajya Sabha, but it too has been largely the preserve of full-time politicians, so the talent pool has not been significantly widened.
    • 2) It puts a premium on defections and horse-trading. The anti-defection Act of 1985 has failed to cure the problem.
    • 3) Legislation suffers. Most laws are drafted by the executive — in practice by the bureaucracy.
    • The ruling party inevitably issues a whip to its members in order to ensure unimpeded passage of a bill.
    • The parliamentary system does not permit the existence of a legislature distinct from the executive.
    • Accountability of the government to the people, through their elected representatives, is weakened.
    • 4) For those parties who do not get into government Parliament or Assembly serves as a theatre for the demonstration of their power to disrupt.

    Case for presidential system

    • A directly elected chief executive at Centre and State would be free from vulnerabilities of coalition support politics, would have the stability of tenure free from a legislative whim.
    • He/she will be able to appoint a cabinet of talents, be able to devote his or her energies to governance, and not just to government.
    • The Indian voter will be able to vote directly for the individual he or she wants to be ruled by.
    • The president will truly be able to claim to speak for a majority of Indians rather than a majority of MPs.

    The risk of dictatorship

    • The only serious objection to the presidential system is that it carries with it the risk of dictatorship.
    • The fear is of an imperious president, immune to parliamentary defeat and impervious to public opinion, ruling the country by fiat.
    • But under the current parliamentary system, a leader with absolute majority and subservient legislature could act in the same manner.

    Consider the question “Examine the differences between the presidential system and the parliamentary system of government. Do you think that the parliamentary system has served well in the Indian context?”

    Conclusion

    With the needs and challenges of one-sixth of humanity before our leaders, we must have a democracy that delivers progress to our people.

  • Relations between judiciary and legislature

    The article discusses the relation between the judiciary and the legislature. Recent development in Rajasthan assembly serves as the backdrop.

    Context

    • The political tussle in Rajasthan entered the High Court and the Supreme Court.
    • The Supreme Court itself proposed to rule on the larger question of the jurisdiction of courts to entertain such pleas.

    Historical background

    • The President of India made a presidential reference to the Supreme Court on the relative powers of legislative assemblies and constitutional courts.
    • The Supreme Court held that there is a broad separation of essential powers of each organ of the State.
    • However, the Court went on to hold that a judge who entertains a petition challenging any order of the legislature does not commit contempt of the said legislature.
    • Since then court have restrained themselves from interfering in the workings of legislative assemblies or Parliament is concerned.
    • The sole exception is under the anti-defection law-after a final order of disqualification has been passed.

    Let’s look into Kihoto Hollohan’s case

    • Constitution bench of the Supreme Court in 1992 held that the Speaker acting in a disqualification matter acts as a tribunal and is subject to judicial review.
    • However, the same judgment makes it clear that the Court will not intervene at an interim stage.
    • The same judgment further holds the Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House.

    Let’s now look into Rajasthan episode

    • In this case, issuance of a possible disqualification notice by the Speaker, has been contested in constitutional courts.
    •  Even in routine petitions against notices of proposed administrative actions, the petitioner is told to answer the show cause notice and to challenge the final action only.
    • The Rajasthan High Court, however, entertained a petition to challenge the Speaker’s authority to decide, if MLAs had committed an act of defection.
    • The Rajasthan High Court reserved its judgment, requested the Speaker to defer further proceedings and proceeded to direct him to await judgment.

    Co-equality of Constitutional authorities

    • Rajasthan assembly Speaker moved the Supreme Court, questioning the court’s power to direct a Constitutional authority.
    • The principle of law applied is that Constitutional authorities cannot issue directions to each other.
    • They can, at best, make a polite request.
    • The single judge in Calcutta, recorded in his judgment that the Supreme Court was only co-equal with the High Court, as a Constitutional Court.
    • Appellate powers of the Supreme Court did not make it a superior authority to which the High Court was subordinate.
    • Ever since, the Supreme Court has been careful to couch its orders as requests to any High Court, or Constitutional authority.
    • Constitutional courts have followed the same principle, in addressing other Constitutional authorities.

    Role of judiciary in maintaining the balance

    • Unnecessary conflict between organs of state may well invite some Speaker, backed by a solid majority at State and Centre, to defy the courts.
    • Courts are apolitical but keep getting pulled into political thickets, especially in matters of mass defections resulting in regime change.
    • The walls of separation between constitutional organs, once breached, cannot be then repaired against future intrusions.

    Consider the question “Analyse fine balance Indian Consitution strikes between the various Constitutional authorities. Also examine how role of judiciary in dealing with the anti-defection law.”

    Conclusion

    Even under a sovereign Constitution, parliamentary and legislative supremacy in their areas of working must be respected.

  • What is Plea Bargaining and how does it work?

    Many members of a religious faction belonging to different countries have obtained release from court cases in recent days by means of plea bargaining. They were accused of violating visa conditions by attending a religious congregation in Delhi.

    Try this question for mains:

    Q.What is Plea Bargaining and how does it work? Discuss the rationale behind and benefits in reducing the burden on Judiciary.

    What is Plea Bargaining?

    • Plea bargaining refers to a person charged with a criminal offence negotiating with the prosecution for a lesser punishment than what is provided in law by pleading guilty to a less serious offence.
    • It is common in the US and has been a successful method of avoiding protracted and complicated trials.
    • As a result, conviction rates are significantly high there. It primarily involves pre-trial negotiations between the accused and the prosecutor.
    • It may involve bargaining on the charge or in the quantum of sentence.

    When was it introduced in India?

    • In India, the concept was not part of law until 2006. It was introduced in 2006 as part of a set of amendments to the CrPC as Chapter XXI-A, containing Sections 265A to 265L.
    • There has always been a provision in the Code of Criminal Procedure for an accused to plead ‘guilty’ instead of claiming the right to a full trial, but it is not the same as plea bargaining.
    • The Law Commission of India, in its 142nd Report, mooted the idea of “concessional treatment” of those who plead guilty on their own volition but was careful to underscore that it would not involve any plea bargaining or “haggling” with the prosecution.

    How does it work?

    • Unlike in the U.S. and other countries, where the prosecutor plays a key role the Indian code makes plea bargaining a process that can be initiated only by the accused.
    • Further, the accused will have to apply to the court for invoking the benefit of bargaining.

    In what circumstances is it allowed?

    • Cases for which the practice is allowed are limited.
    • Only someone who has been charge-sheeted for an offence that does not attract the death sentence, life sentence or a prison term above seven years can make use of the scheme under Chapter XXI-A.
    • It is also applicable to private complaints of which a criminal court has taken cognizance.
    • Other categories of cases that cannot be disposed of through plea bargaining are those that involve offences affecting the “socio-economic conditions” of the country or committed against a woman or a child below 14.

    How to avail this?

    • The applicant should approach the court with a petition and affidavit stating that it is a voluntary preference and that he has understood the nature and extent of punishment provided in law for the offence.
    • The court would then issue a notice to the prosecutor and the complainant or victim, if any, for a hearing.
    • The voluntary nature of the application must be ascertained by the judge in an in-camera hearing at which the other side should not be present.
    • Thereafter, the court may permit the prosecutor, the investigating officer and the victim to hold a meeting for a “satisfactory disposition of the case”.
    • The outcome may involve payment of compensation and other expenses to the victim by the accused.

    After approval

    • Once mutual satisfaction is reached, the court shall formalize the arrangement by way of a report signed by all the parties and the presiding officer.
    • The accused may be sentenced to a prison term that is half the minimum period fixed for the offence.
    • If there is no minimum term prescribed, the sentence should run up to one-fourth of the maximum sentence stipulated in the law.

    What is the rationale for the scheme? What are its benefits?

    • The Justice Malimath Committee on reforms of the criminal justice system endorsed the various recommendations of the Law Commission with regard to plea bargaining.
    • Some of the advantages it culled out from earlier reports are that the practice would ensure a speedy trial, end uncertainty over the outcome of criminal cases, save litigation costs and relieve the parties of anxiety.
    • It would also have a dramatic impact on conviction rates.
    • Prolonged incarceration of undertrials without any progress and overcrowding of prisons were also other factors that may be cited in support of reducing pendency of cases and decongesting prisons.
    • Moreover, it may help offenders make a fresh start in life.

    Do courts have reservations?

    • Case law after the introduction of plea bargaining has not developed much as the provision is possibly not used adequately.
    • However, earlier judgments of various courts in cases in which the accused enter a ‘guilty’ plea with a view to getting lesser sentences indicate that the judiciary may have reservations.
    • Some verdicts disapprove of bargaining with offenders, and point out those lenient sentences could be considered as part of the circumstances of the case after a regular trial.
    • Courts are also very particular about the voluntary nature of the exercise, as poverty, ignorance and prosecution pressure should not lead to someone pleading guilty of offences that may not have been committed.

  • Breaking the politicians-criminals-bureaucrats nexus

    The root cause of impunity with which police perpetrated crimes lies in the in a nexus. The nexus between politicians, criminals and government functionaries needs to be broken down. This article suggests the ways to do that.

    The context

    • The recent custodial deaths in Tamil Nadu and encounter of a criminal by the UP police showed the police in a bad light.
    • However, when we dig deeper into the problem we realise that its root lies in the nexus of politicians, criminals and the government functionaries.

    Past attempt to break the nexus

    • In 1993, the Vohra Committee had submitted a report on the nexus between the criminals, politicians and government functionaries.
    • DIB suggested that an institution be set up to effectively deal with the menace.
    • There were discussions in parliament, but the matter ended there.
    • There was hardly any follow-up action.

    Criminalisation of politics

    • The number of members of parliament with criminal background has been going up with every successive election.
    • It was, according to the Association of Democratic Reforms, 30 per cent in 2009, 34 per cent in 2014 and 43 per cent in 2019.
    • The present UP Assembly has 36 per cent or 143 MLAs with criminal cases against them.
    • This lead to the administration turning a blind eye to the illegal activities of the criminals.
    • The nexus has proliferated and grown in strength down the years.
    • It creates an environment where the criminals who are part of the nexus are able to dodge the due processes of law.

    Suggestions

    • 1) We must have a law which debars persons with serious criminal cases from entering the assemblies and the Parliament.
    • 2) The criminal justice system must be revamped as recommended by the Malimath Committee.
    • 3) The Supreme Court’s directions on police reforms must be implemented.
    • 4) An institution comprising representatives of the police/CBI/NIA, IB, IT department, Revenue Intelligence and Enforcement Directorate should be set up to monitor the activities of the mafia and criminal syndicates in the country.
    • 5) A Central act on the lines of MCOCA should be enacted to curb the activities of organised criminal gangs.
    • 6) The concept of federal crime, as recommended by the Second Administrative Reforms Commission, should be accepted.
    • Crimes with all-India ramifications or are trans-national in character, like those of terrorism and organised crimes, should be brought within the ambit of federal crimes.

    Consider the question “The nexus of criminals, politicians and government functionaries is at the root of many problems the country faces today. Examine the problems created by the nexus and suggest ways to deal with the problem.”

    Conclusion

    We must, without further delay, build an environment where police become an instrument of service to the people, where monsters like Dubey do not thrive and become a menace to society.

  • Padmanabhaswamy Temple Verdict by the Supreme Court

    Reversing the 2011 Kerala High Court decision, the Supreme Court upheld the right of the Travancore royal family to manage the property of deity at Sree Padmanabha Swamy Temple in Thiruvananthapuram.

    Try this question from CSP 2016:

    Q.In the context of the history of India, consider the following pairs

    Term              Description
    1.  Eripatti Land, revenue from which was set apart for the maintenance of the village tank
    2. Taniyurs Villages donated to a single Brahmin or a group of Brahmins
    3. Ghatikas Colleges generally attached to the temples

    Which of the pairs given above is/are correctly matched?

    a) 1 and 2

    b) 3 only

    c) 2 and 3

    d) 1 and 3

    What did the apex Court say?

    • The court said that as per customary law, the shebait rights (right to manage the financial affairs of the deity) survive with the members of the family even after the death of the last ruler.
    • The ruling ends the legal battle the temple and members of the royal family have fought with the government for decades over control of one of the richest temples in the world.

    What is the case about?

    • The central legal question was whether the heirs of the last Ruler of Travancore could claim to be the “Ruler of Travancore” after the death of the ruler in 1991.
    • The court examined this claim within the limited meaning of that term according to the Travancore-Cochin Hindu Religious Institutions Act, 1950 to claim ownership, control and management of the ancient Temple.

    Earlier cases of ownership: A background

    • All the temples which were under the control and management of the erstwhile Princely States of Travancore and Cochin were under the control of the Travancore and Cochin Devaswom Boards before 1947.
    • However, as per the Instrument of Accession signed, since 1949, the administration of the Padmanabhaswamy Temple was “vested in trust” in the Ruler of Travancore.
    • The state of Kerala was carved out in 1956 but the temple continued to be managed by the erstwhile royals.

    The legal battle

    • In 1971, privy purses to the former royals were abolished through a constitutional amendment stripping their entitlements and privileges.
    • The move was upheld in court in 1993 and the last ruler of Travancore who died during the pendency of this case continued to manage the affairs of the temple till then.
    • In 1991, when the last ruler’s brother took over the temple management, it created a furore among devotees who moved the courts leading to a long-drawn legal battle.

    Is the temple the property of the royal family?

    • The character of the temple was always recognised as a public institution governed by a statute.
    • The argument of the royal family is that the temple management would vest with them for perpetuity, as per custom.
    • Even though the last ruler executed a detailed will bequeathing his personal properties, he had not included the Sree Padmanabhaswamy Temple as his personal property or dealt with it in his will.

    What about the treasure in the vaults?

    • A consequence of who has administrative rights over the temple is whether the vaults of the temple will be opened.
    • In 2007, the heir claimed that the treasures of the temple were the family property of the royals.
    • Several suits were filed objecting to this claim and a lower court in Kerala passed an injunction against the opening of the vaults.
    • The Kerala High Court in the 2011 ruling passed an order that a board be constituted to manage the affairs of the temple, ruling against the royal family.

    What impact would this ruling have?

    • Since 2011, the process of opening the vaults has led to the discovery of treasures within the Padmanabhaswamy temple, prompting a debate on who owns temple property and how it should be regulated.
    • Despite being a secular country that separates religion from the affairs of the state, Hindu temples, its assets are governed through statutory laws and boards heavily controlled by state governments.
    • This system came into being mainly through the development of a legal framework to outlaw untouchability by treating temples as public land; it has resulted in many legal battles.

  • Rewriting the social contract to deal with the pandemic

    The article examines the theoretical basis on which the governments exercise power. That basis is encapsulated in the ‘social contract theory’. The role of government, however, came under the scanner in the pandemic in which the impact of pandemic was different for the different people.

    Social contract theory: Then and now

    • In the course of evolution, formed the concept of social groups and resultant rules they would abide by.
    • This is the most rudimentary form of what is known as the ‘social contract theory’.
    • When monarchies and empires prevailed, it was easy to understand a social contract.
    • But democratically elected governments have found it more difficult to derive the same legitimacy.
    • Modern society and modern governments also use the social contract theory to claim legitimacy for their actions.
    • The social contract comprises people agreeing to live as one under common laws and in enforcing those common laws justly.

    Modern-day governments’ approach

    • Modern-day governments fundamental credo is that society is best served if a government takes on an executive or sovereign power, with the consent of the people.
    • Governments also use the power democratically invested in them to decide what is in the best interest of the people.
    • Thus, there is a bending of individual free will towards the collective will.
    • So, the social contract is being used by modern governments to justify greater aggrandisement of power in the hands of the sovereign.

    Governments role in pandemic and social contract

    • The novel coronavirus pandemic has laid bare the falsity of this image.
    • Access to information about this pandemic has not been equal.
    • Access to resources to avoid the disease has not been equal.
    • And, of course, access to treatment has not been equal.
    • All this led to uneven impact of the pandemic on people belonging to the different strata of the society.

    Inequality and the impact of pandemic

    •  All societies have some measure of inequality.
    • However, in deeply unequal societies, where the Gini Coefficient exceeds 0.4, for instance, different strata of society will have very different needs to deal with a crisis of this nature.
    • We have seen societies with lower Gini Coefficients deal with the crisis far better.
    • This is because a uniform approach works perfectly when society is perfectly equal.

    Centralised or decentralised approach: Which is better to deal with pandemic?

    • The social contract which imbues a centralised sovereign with overreaching powers has clearly failed on this occasion.
    • The centralised sovereign will work well against a mighty external aggressor, but not against a microscopic pathogen.
    • What is required is not just a decentralised approach but also a state which is sensitive.

    Consider the question “The COVID pandemic has impacted the people with varying intensity and its impact was more on societies with more inequality. This highlights the centrality of the government. Critically examine.”

    Conclusion

    The novel coronavirus cannot be defeated by a centralised government. COVID-19 can only be defeated by an empowered populace. The social contract requires to be rewritten. It does not require anything drastic such as a revolution or anarchy. Rather, it only needs fundamental introspection and rethinking by the governing classes including bureaucrats.

    Oped-snap

    https://www.thehindu.com/opinion/lead/the-social-contract-needs-to-be-rewritten/article32025342.ece

  • Making justice accessible through live streaming

    Livestreaming of the judicial proceeding goes a long way in increasing the access of justice which is granted under Article 21. This article examines the evolution in judiciary and making justice accessible.

    Judiciary adapting to changes

    •  As the lockdown began, the Court had to quickly find the technology and create protocols for virtual courts and e-hearings.
    • Before this, there was an open courtroom that the public could access.
    • This protected the right to access justice, guaranteed under Article 21 of the Constitution.

    Access to justice without physical classroom

    • Now that the Court is proactively adopting technology, it must expand the right of access to justice by live-streaming proceedings.
    • Further, court proceedings must also be documented and preserved for future generations.
    • Both audio-visual recordings and transcripts of oral arguments should be maintained for this purpose.

    Evolution of access to court

    • The Supreme Court maintained no public record of its own proceedings in the past.
    • Nor were its proceedings broadcast live for public viewing.
    • Over time, security concerns meant that the public could only enter courtrooms in the SC with a pass.
    • Due to space constraints, law students were not permitted to enter courtrooms on Mondays and Fridays when the Court heard fresh matters.

    A case that led to live broadcast of the proceedings

    • In its 2018 judgment in Swapnil Tripathi v Supreme Court of India, the Court recommended that proceedings be broadcast live.
    • The SC held that live streaming proceedings is part of the right to access justice under Article 21 of the Constitution.
    •  Justice DY Chandrachud noted that open courts help foster public confidence in the judiciary.
    • Further, publishing court proceedings is an aspect of Article 129, per which the Supreme Court is a court of record.
    • Journalists, young lawyers, civil society activists and academics would all benefit from live streaming, the Court opined.
    • The guidelines proposed 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.

    Recording the proceedings- 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.
    • Democracies aside, in China, court proceedings are live streamed from trial courts up to the Supreme People’s Court of China.

    India stands alone

    • 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 are a number of cases where the Supreme Court’s judgments have changed citizens’ lives — Aadhaar, Section 377, Sabarimala, NRC and the triple talaq judgments are among them.

    Steps to make justice 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.
    • If that technology is available, it could be extended to members of the public, who can then view court proceedings themselves.
    • Due to pandemic for the next few years, Indian courts will have to adopt a combination of virtual and in-person hearings.

    Consider the question “Live-streaming and recordings of the court proceeding helps in reinforcing the public faith in the judiciary. Comment.”

    Conclusion

    Openness and transparency reinforce the public’s faith in the judicial system. Livestreaming and recording of the proceeding will open the door to ensure the same.

  • Over 42,000 undertrials released to unclog prisons: NALSA report

    Legal services institutions have intervened to release 42,529 undertrial prisoners as well as 16,391 convicts on parole to de-congest prisons during the COVID-19 pandemic, a report from NALSA has said.

    Practice question for mains:

    Q. More than a century-old system of prisons in India needs urgent repair. Discuss with context to the increase in the cases of undertrials.

    Decongesting the prison

    • There are 1,339 prisons with approximately 4, 66,084 inmates in India with the rate of occupancy at Indian prisons at 117.6% (a/c to NCRB).
    • The report stated that 243 undertrial prisoners had been granted bail and 9,558 persons in remand had been given legal representation across the country.
    • It said the highest number of undertrial prisoners released was 9,977 in Uttar Pradesh, followed by 5,460 in Rajasthan and 4,547 in Tamil Nadu, 3,698 in Punjab and 3,400 in Maharashtra.
    • Note: Prisons/ Prisoners/persons detained is a State subject under Entry 4 of List II of the Seventh Schedule to the Constitution of India.

    Hardships of the undertrials

    • Right to a speedy trial is an integral part of the principles of fair trial and is fundamental to the international human rights discourse.
    • In Indian jails, most of the prisoners are undertrials, which are confined to the jails until their case comes to a definite conclusion.
    • In most of the cases, they end up spending more time in the jail than the actual term that might have had been awarded to them had the case been decided on a time and, assuming, against them.
    • Plus, the expenses and pain and agony of defending themselves in courts is worse than serving the actual sentence. Undertrials are not guilty till convicted.
    • In 2017, the Law Commission of India had recommended that undertrials who have completed a third of their maximum sentence for offences attracting up to seven years of imprisonment be released on bail.

    About NALSA

    • National Legal Services Authority of India (NALSA) was formed on 9 November 1995 under the authority of the Legal Services Authorities Act 1987.
    • Its purpose is to provide free legal services to eligible candidates and to organize Lok Adalats for the speedy resolution of cases.
    • The CJI is patron-in-chief of NALSA while second seniormost judge of Supreme Court of India is the Executive-Chairman.
    • 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.
    • The prime objective of NALSA is speedy disposal of cases and reducing the burden of the judiciary.

    Also read:

    [Burning Issue] Need of Prison Reforms

  • Judiciary’s tryst with technology

    COVID pandemic has been changing many aspects of our life and forcing us to innovate or embrace the novel changes. The judiciary is not immune to this change. This article advocates for the adoption and popularization of online court. But there were several attempts at the adoption of technology in the working of courts even before the pandemic. Time has now come to its adoption on a wider scale.

    Three types of courts in our justice delivery system

    • First, conventional courts located in court complexes where judges, lawyers and litigants are physically present.
    • Second, online courts where the judge is physically present in the courtroom but the lawyer or litigant is not.
    • This is the present arrangement, except that now the courtroom is the residential office of the judge, due to the lockdown.
    • Third, virtual courts where there is no judge, lawyer or litigant and a computer takes a decision based on the inputs of the litigant.

    Pilot project with Tihar Jail

    • The pilot was for dealing with routine remand cases of prisoners.
    • The procedure postulated prisoners being produced in court, not physically but through video conferencing (VC), hence an online court.
    • The pilot project started tentatively with some hiccups but proved to be a success.
    • Now several courts have adopted the online process with varying degrees of commitment.

    District courts and High Courts’ adoption of online route

    • A few district judges have taken a step forward and recorded the statement of parties in cases of divorce by mutual consent.
    • As of now, several such cases, including those involving NRIs, are dealt with through VC in online courts.
    • Punjab and Haryana judges have gone even further ahead. The online courts record the expert evidence of doctors from PGIMER through VC.
    • This has freed the doctors from time-consuming trips to the courts and has resulted in savings of several crores for the exchequer.
    • A determined and concerted effort is necessary to popularise online courts at the district level.
    • Some high court judges in Delhi and Punjab and Haryana have completely dispensed with paper.
    • In these high courts, everything is on a soft copy, through e-Filing and scanned documents.
    • Lawyers and judges have made necessary adjustments to the new regime and the cases are conveniently heard and decided in “paperless courts”.
    • A few other high courts initiated similar steps, but have yet to institutionalise “paperless courts”.

    What are the problems?

    • Unfamiliarity with the medium of communication is the major issue. Judges are simply not used to consciously facing a camera generally and in particular while hearing a case.
    • Similarly, lawyers find it difficult to comfortably argue while seated.
    • Body language, facial expressions, the tone and tenor, both of the judge and the lawyer, make for important signals and clues which cannot be captured in VC.
    • Some technical problems in conducting online hearings have also surfaced. The bandwidth is not adequate or stable enough.
    • The picture sometimes breaks or gets frozen and the voice often cracks.
    • Consultations are also a problem. Lawyers occasionally need to consult their client or the instructing advocate; judges also need to consult each other during a hearing.
    • Attention needs to be paid to these real-time issues otherwise lawyers will harbour misgivings about a fair hearing.
    • The chairman of the Bar Council of India has voiced a concern that 90 per cent of the lawyers are not computer literate or tech-savvy.

    eCourts Project: A virtual court

    • A virtual court is a unique contribution of the eCourts Project.
    • A pilot virtual court was launched in August 2018 in Delhi for traffic offences and it has been a great success.
    • Virtual courts have been successfully tried out in Delhi, Haryana, Maharashtra and Tamil Nadu.
    • A virtual court is a simple programme through which a person can find out if a challan has been issued to him or her through a search facility.
    • If a challan has been issued, the details are available online and the person may plead guilty or not guilty.
    • On a guilty plea, the minimum fine is imposed and on a not-guilty plea, the case is electronically transferred to the traffic court for trial.
    • At the end of the day, a judge reviews the cases and disposes of them electronically depending on the option exercised.
    • One judge is all it takes to manage the virtual court for Delhi or an entire state.
    • With the launch of virtual courts, the daily footfalls to the courts have drastically reduced and thousands have pleaded guilty and paid the fine electronically.

    Potential of the virtual courts

    • The virtual court system has the potential of being upscaled and other petty offences attracting a fine such as delayed payments of local taxes or compoundable offences can also be dealt with by virtual courts.
    • This will ease the burden on conventional courts and therefore must be strongly encouraged.

    Consider the question- “Covid-19 pandemic has been forcing judiciary for faster adoption of technology. Discuss the issues and advantages of the adoption of technology such as video conferencing by the judiciary”

    Conclusion

    Post lockdown, justice delivery will certainly undergo a transformation. And judges, lawyers and litigants will need to adapt to the new normal. Several countries and courts have made adjustments not only for the period of the pandemic or lockdown but also for the future. We should certainly not be left behind but must also make a roadmap to meet the challenge.

  • Issue of post-retirement appointments of the judges.

    The article discusses the issue of retired judges accepting government post after retirement. Such appointments have several implications. It undermines confidence in the independence of the judiciary. It also influence pre-retirement judgements delivered by the judges. The article also offers some solutions to this problem.

    The provisions in the Constitution to secure the independence of the judiciary

    • The Constitution has been conceived to provide a pride of place to the judiciary.
    • Constitutional appointees to the Supreme Court have been guaranteed several rights in order to secure their independence.
    • Salary: The salaries of judges and their age of retirement are all guaranteed in order to secure their independence.
    • Removal: They cannot be easily removed except by way of impeachment under Articles 124(4) and 217(1)(b).
    • They have the power to review legislation and strike it down.
    • They can also question the acts of the executive.
    • All this makes it clear that the framers of the Constitution envisaged an unambitious judiciary for which the only guiding values were the provisions of the Constitution.

    Issue of judges accepting post-retirement jobs

    • It was thought that on retirement from high constitutional office, a judge would lead a retired life.
    • Nobody ever expected them to accept plum posts.
    • But the clear demarcation between the judiciary and executive got blurred as many judges over the years began to accept posts offered by the government.
    • A few years ago, a former Chief Justice of India (CJI) was made a Governor by the ruling party.
    • Now, we have the case of a former CJI, Ranjan Gogoi, being nominated by the President to the Rajya Sabha and taking oath as Member of Parliament.
    • Pre-retirement judgements under cloud: During his tenure as CJI, Justice Gogoi presided over important cases such as Ayodhya and Rafale where all the decisions went in favour of the government.
    • This gave rise to the impression that his nomination was a reward for these ‘favours’.
    • Thus his appointment — and that too within a few months of his retirement — not only raised eyebrows but came in for severe condemnation from varied quarters.
    • Loss of confidence: People are fast losing confidence in the so-called independent judiciary.
    • In 2013 Arun Jaitley, who was also a senior Advocate, ironically said that legislature was creating post-retirement avenues for Judges in every legislation.
    • He also said that post-retirement job influences pre-retirement judgements.
    • It is in this context that the appointment of Mr Gogoi has to be perceived.

    Did Constitution makers intend to nominate Judges?

    • Mr Gogoi’s view that membership of the Rajya Sabha was not a job but a service, and that once the President nominated him the call of duty required him to accept it, only created the impression that the judiciary is pliant.
    • A bare reading of Article 80(3) of the Constitution only envisages the President to nominate “persons having special knowledge in literature, science, art and social service” as members to the Rajya Sabha.
    • It is difficult to imagine that the Constitution-makers had in mind a retired CJI when framing this provision.

    A direct question based on the issue can be asked, like “What are the implications of post-retirement appointments of the judges? Give suggestions to deal with this problem”.  So, take note of the various issues and their solutions discussed here.

    Way forward

    • If post-retirement appointments are going to undermine confidence in the judiciary and in a constitutional democracy.
    • Enact law or amend Constitution: It is time to have a law in place either by way of a constitutional amendment or a parliamentary enactment barring such appointments.
    • This is the only way to secure the confidence of the people and prevent post-retirement appointments.
    • Increase pension: Judges can be compensated by being given their last drawn salary as a pension.
    • Retirement age can be increased: Also, the age of retirement for judges can be increased by a year or two.
    • This will undo the damage caused by post-retirement jobs.

    Conclusion

    The appointments of persons who have held constitutional office will undermine the very constitutional values of impartiality in the dispensation of justice. So, enacting a law to bar such appointments or amendment to the Constitution would be the step in the right direction.