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GS Paper: GS2-03.Separation of Powers between different organs, dispute redressal mechanisms and institutions

  • A Court divided by its own architecture

    Why in the News

    A two-judge Bench of the Supreme Court has split on the challenge to the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. The judges differed not on the law’s validity but on whether a Bench of two could decide it at all, which exposes how the Court is organised.

    What does the 2023 Act provide, and what did Anoop Baranwal settle?

    1. Selection committee: The Act, enacted in December 2023, has the Prime Minister, the Leader of the Opposition and a Minister chosen by the Prime Minister recommend Election Commissioners.
    2. Interim arrangement: Earlier, in Anoop Baranwal vs Union of India (2023), a five-judge Constitution Bench had seated the Chief Justice of India (CJI) in the Minister’s place, as a stopgap until Parliament legislated.
    3. Settled principle: Baranwal read Article 324, which creates the Election Commission, to require appointments insulated from exclusive executive control. Under Article 141, that declaration binds every court.
    4. The takeaway: Parliament could drop the CJI, but the Act must still meet Baranwal’s standard of insulation from the executive.

    Why did the Bench split?

    1. Union’s late plea: Midway through hearings, the Union invoked Article 145(3) to seek at least five judges, a plea absent from its written reply.
    2. Datta’s view: Justice Dipankar Datta refused, holding that testing a committee where the executive holds two of three votes only applies Baranwal’s settled rule, so two judges suffice.
    3. Sharma’s view: Justice Satish Chandra Sharma agreed with the Union, since no ruling yet exists on the 2023 Act’s validity.
    4. Unusual referral: A split of two normally goes to three judges. Both instead asked the CJI to form a Constitution Bench, so petitioners in court since early 2024 wait again.

    Does Article 145(3) require a Constitution Bench for every new law?

    1. Text of the provision: Article 145(3) requires five judges only for a substantial question of constitutional interpretation, not for every important case or new statute.
    2. Settled test: Thakur Ganga Singh (1959) held interpretation arises only when parties advance competing readings of a constitutional provision. A three-judge Bench applied this to the provision in PUCL vs Union of India.
    3. Two-judge landmark rulings: On Sharma’s test, two-judge Benches could not have decided Shreya Singhal (Section 66A) or NALSA (transgender identity).
    4. Weak stare decisis: Stare decisis means courts stand by earlier rulings. Here a Bench of two declined to apply a principle five judges had settled.

    How has the Court’s structure produced delay?

    1. Original design: The Court began in 1950 with six judges, so the five-judge rule assumed it would mostly sit together.
    2. Today’s court: With 38 sanctioned judges sitting mainly in small panels on special leave petitions (requests to appeal), a Constitution Bench forms only when five judges are spare.
    3. Many courts in one: Scholar Nick Robinson calls the result many courts, each Bench speaking in its own voice.
    4. Decade-long references: Anoop Baranwal took eight years, and the Jai Bir Singh “industry” reference lay dormant 15 years. The judges call such delay “institutional embarrassment”.

    What reform is proposed, and what must it guard against?

    1. Permanent Constitution Bench: The joint order asks the CJI to explore a standing Bench for pure constitutional questions. The Law Commission’s 229th report (2009) proposed this, with regional Benches hearing appeals.
    2. Composition risk: The CJI can create such a Bench without amendment, but choosing its members shapes outcomes, so pre-set, transparent rules must decide composition.
    3. Inverted role: The Court, conceived as a guardian of the Constitution that also hears appeals, now sits mainly as an appellate court.

    Challenges

    1. Appeal-heavy docket: Special leave petitions leave few judges free for five-member Benches.
    2. Regional Bench resistance: The Court has long resisted regional Benches, so the Law Commission model has stalled.
    3. Elections under doubt: Commissioners chosen under the contested law will oversee several State and likely general elections before the case ends.

    Way Forward

    1. Roster committee: Bench formation should pass to a committee of the CJI and the next two senior-most judges.
    2. Reference deadlines: The Court should fix timelines for hearing references to larger Benches.
    3. Precedent discipline: A smaller Bench doubting a larger one should refer the doubt, not bypass the ruling.

    Conclusion

    Until constitutional cases get a standing Bench chosen by fixed rules, the Court will keep settling its gravest questions after the fact. Whether the CJI forms a Constitution Bench for this case, and on what rules, is the decision to watch.

    Matching Previous Year Question

    “[2022] Consider the following statements : 1. Pursuant to the report of H.N. Sanyal Committee, the Contempt of Courts Act, 1971 was passed. 2. The Constitution of India empowers the Supreme Court and the High Courts to punish for contempt of themselves. 3. The Constitution of India defines Civil Contempt and Criminal Contempt. 4. In India, the Parliament is vested with the powers to make laws on Contempt of Court. Which of the statements given above is/are correct ?4 (a) 1 and 2 only (b) 1, 2 and 4 (c) 3 and 4 only (d) 3 only Answer: B”

  • EC appointment: Why SC placed matter before CJI

    Why in the News

    A two judge Bench of the Supreme Court has referred petitions challenging the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 to the Chief Justice of India (CJI), to consider forming a Constitution Bench. The two judges split on whether a larger bench was needed at all, and agreed only on placing the matter before the CJI. The challenge answers Anoop Baranwal v. Union of India (2023). A five judge Constitution Bench in that case laid down an interim selection committee for appointments to the Election Commission, comprising the Prime Minister, the Leader of Opposition in the Lok Sabha and the CJI. The 2023 Act then replaced the CJI on that committee with a Union Cabinet Minister nominated by the Prime Minister, giving the Union a 2:1 majority on a three member panel. The contested point is whether that replacement raises a constitutional question the Court has never answered, or merely applies a principle it settled in 2023.

    What is a Constitution Bench?

    1. Composition and trigger: Under Article 145(3), a Constitution Bench of five or more judges decides a “substantial question of law” involving the interpretation of the Constitution.
    2. The question must be unsettled: A case does not go to a larger bench merely because it involves the Constitution. The question must be one the Court has never authoritatively answered before.
    3. Precedential weight: Constitution Bench rulings carry greater weight than ordinary judgments.
    4. How a split verdict reaches one: When two judges cannot agree, the matter goes to the Chief Justice of India, who decides whether to send it to a larger bench. The split by itself does not automatically warrant a Constitution Bench.

    What did the 2023 Act change about appointments to the Election Commission?

    1. The constitutional gap: Article 324(2) provides that the Chief Election Commissioner and other Election Commissioners are appointed by the President, subject to any law Parliament may make. Parliament made no such law for 73 years, and appointments were made under the executive’s own framework.
    2. The litigation: A writ petition under Article 32 challenging the absence of such a law was filed in 2015. A two judge bench referred the matter to a Constitution Bench in 2018.
    3. What Anoop Baranwal held: The Constitution Bench delivered its judgment in March 2023, holding that appointments to the Election Commission cannot remain under “exclusive executive control”. It underlined that those entrusted with conducting elections must be insulated from executive influence.
    4. The statutory answer: Parliament passed the Act in December 2023. The selection committee it created comprises the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister and the Leader of Opposition.

    What did Justice Dipankar Datta hold?

    1. The present Bench could decide: He took the view that the petitions could be decided by the present Bench itself. The governing constitutional principle was already settled in Anoop Baranwal, and the remaining question was only whether the 2023 law complies with it.
    2. No bar on the present Bench: That exercise was “no more than the application of the settled principles of law to the facts of the case”. He held that “neither any Constitutional bar nor a precedent precludes hearing of these petitions by the present Bench”.
    3. The panel’s internal balance: A minister bound by collective responsibility “cannot be expected to defy his own nominator”. The presence of the Leader of Opposition on the selection committee therefore becomes “largely ornamental”.
    4. The perception test: He emphasised that “it is not enough for the ECI to be independent, it must also appear to be independent”. On the argument that the law gives the executive overwhelming influence over appointments, he said it “does appear to have substance”, while stating that these were prima facie observations.
    5. The collegium comparison rejected: He rejected the government’s comparison between the Election Commission selection process and the collegium system for judicial appointments. Judicial appointments involve the executive at multiple stages, and he described the popular notion that “judges appoint judges” as a “myth”.
    6. Why the comparison fails: The absence of a neutral member in the collegium cannot justify the absence of a neutral member in the Election Commission appointment process. He described the government’s comparison as “disingenuous, evasive and disquieting”.

    What did Justice Satish Chandra Sharma hold?

    1. A first time question: He held that the challenge must be referred to a Constitution Bench, because the Court is examining the constitutional validity of the 2023 Act for the first time. “There is no authoritative decision of this court till date pronouncing on the constitutional validity of the said Act,” he said.
    2. The key question: For him the key question was whether Parliament was justified in not including a neutral selector in the selection committee. He called that “an important question arising for the first time before this court”.
    3. Why Article 145(3) binds: Since the question “has not been dealt with in any precedent”, Article 145(3) left “no room for a decision on such question finally by the present combination” of two judges.
    4. What else needs a larger bench: He viewed the government’s arguments on separation of powers, and its comparison with the collegium system, as issues requiring examination by a larger bench.
    5. The petitioners’ counter: The petitioners had argued that the central legal question, that the selection must be an independent process, was already decided by the 2023 Constitution Bench ruling.

    Why did both judges still send the matter to the CJI?

    1. A three judge bench would add nothing: They held that sending the issue first to a three judge bench would be of “little worth” and would only delay a final decision on the important constitutional questions raised.
    2. The record on delay: They flagged the long delays in deciding constitutional references. The Anoop Baranwal case took eight years to reach a final judgment, and they cited other references that remained pending for years.
    3. The characterisation: They called such delays “a source of institutional embarrassment”.
    4. The structural suggestion: They urged the CJI to consider setting up a permanent five judge bench for constitutional cases.

    What do earlier split verdicts show about referral?

    1. The hijab case: The Supreme Court delivered a split verdict in the Karnataka hijab case in October 2022. The matter was referred to a larger bench and remains pending more than four years later.
    2. The Prevention of Corruption Act reference: A split verdict earlier this year on Section 17A of the Prevention of Corruption Act, 1988 also went to a larger bench.
    3. What referral does not settle: Referral moves the question; it does not schedule the answer. Both examples are the delay the present Bench cited as its reason for skipping an intermediate step.

    Conclusion

    The referral leaves the substantive question where it was: whether a selection panel on which the executive holds the majority can produce an Election Commission that appears independent. One judge holds that the question is already answered in principle and needs only application. The other holds that it has never been put to the Court at all. What the CJI now decides is not the validity of the 2023 Act but how long the country waits for a ruling on it, and the Bench’s own warning about how long constitutional references take is why that matters.

    Back2Basics: Election Commission of India

    1. Constitutional basis: Article 324 vests the superintendence, direction and control of elections to Parliament, the State legislatures, the office of President and the office of Vice-President in the Election Commission of India.
    2. Composition: It consists of the Chief Election Commissioner and such number of other Election Commissioners as the President may fix. It has functioned as a three member body since 1993.
    3. Tenure: The Chief Election Commissioner and the Election Commissioners hold office for six years or until the age of 65, whichever is earlier.
    4. Removal: The Chief Election Commissioner can be removed only in the same manner and on the same grounds as a judge of the Supreme Court. An Election Commissioner can be removed only on the recommendation of the Chief Election Commissioner.

    Matching Previous Year Question

    “[2019, GS2, 10 marks] Do you think that constitution of India does not accept principle of strict separation of powers rather it is based on the principle of ‘checks and balance’? Explain.”

  • Reiterating the basics of criminalisation

    Why in the News

    The Supreme Court has held that the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 is “still-born” and that proceedings under it cannot survive. A two-judge Bench decided this in Shiv Pratap Singh vs. State of U.P. and Himanshu Srivastava vs. State of U.P. The Bench found that the Act never created an offence at all. Who counts as a gangster was fixed by Rules framed under the Act, so the determination was left to the “ipse dixit of the Executive”, an assertion resting on official say-so rather than on proof. The Act had governed gangsters and anti-social activities in the State for four decades. The contest is between a State’s claim to a special law against organised crime and the constitutional requirement that only a legislature may create a crime.

    What is the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986?

    1. Subject matter: The Act was the State’s dedicated special law against gangsters and anti-social activities in Uttar Pradesh.
    2. Determination of a gangster: The Act defines a gangster. Who is a gangster for the purpose of punishment is prescribed in the Rules framed under the Act.
    3. Gang chart: Chapter 3 prescribes the procedure for preparing the gang chart. This is the document through which administrative and police authorities record a person as a gangster.
    4. Section 23: Section 23 carries special provisions for trial and bail, together with the rule-making power.

    Why did the Court call the Act “still-born”?

    1. Creation of the crime: A penal law must create the crime by explicitly identifying the act made punishable. The Court applied the definition of “offence” in the General Clauses Act and concluded, “We cannot find any offence having been created.”
    2. Criminal law-making as a legislative function: Making an act or omission subject to penal consequences is “essentially a legislative function”. The Court held that this function “cannot be thrown away and left to sprout in the thicket of subordinate legislation”.
    3. Exclusion of the executive: The Rules left the determination of who a gangster is to the executive. The Court treated the exclusion of the executive from rule-making and from guilt determination as the desirable position.
    4. Punishment must follow the statute: The Court held that punishment must accord with what the penal law itself prescribes. A subordinate instrument cannot supply it.

    Why is criminal law-making reserved to the legislature?

    1. The definitional role: The role of defining crime and punishment is “assigned primarily and broadly to the legislature, secondarily and interstitially to the courts, and to no one else”. That formulation comes from Herbert L. Packer’s The Limits of the Criminal Sanction (1968).
    2. Deliberation before enactment: Enacting a criminal law through the legislature forces detailed debate and due deliberation. Subordinate legislation supplies neither.
    3. Unquestioned executive opinion: The problem arises when the opinions of the executive are accepted without question on categorisation and on punitive action.

    How does the principle of legality bar an executive-defined crime?

    1. Principle of legality: Criminalisation is rooted in the principle of legality. It requires the act and its punishment to exist in law before the conduct occurs.
    2. Two maxims: The principle draws on nullum crimen sine lege, no crime without law, and nulla poena sine lege, no punishment without law. An administrative classification satisfies neither.
    3. Bar on retrospective criminalisation: The principle also prohibits ex-post facto legislation. Conduct cannot be made punishable after it has taken place.
    4. Article 20(1): Article 20(1) creates a right against conviction except for violation of a law in force at the time of the act charged as an offence. It also bars a penalty greater than what the law in force prescribed.

    How did the Act turn a criminal trial into a formality?

    1. Status as the punishable thing: The Act punished mere status. That status was settled by administrative and police authorities rather than in court.
    2. Nothing left for the judge: Once the status is so determined, “nothing remains to be considered by the judicial officer but to punish him”, the Court held.
    3. A foregone conclusion: The Court described the end result of a trial under the Act as “a foregone conclusion, a statutory imprimatur to punish”.
    4. Culpability without reasons: Challenges in this and in earlier cases argued that executive authorities reached conclusions of culpability without verifiable evidence or reasoning.

    Can the gravity of a social menace justify an executive-defined offence?

    1. No licence for arbitrary action: However compelling or threatening the social menace, a penal enactment to curb it “cannot lead to arbitrary and capricious actions against the one, alleged with the commission of an offence”, the Court held.
    2. Loose labelling in public life: Indian public discourse applies labels such as deshdrohi and “urban naxal” at will. Precise definition of categories such as crime and offence is what keeps that habit out of statute.
    3. A reform agenda: The ruling sets out an agenda for reform of the Gangsters Act. It also restates the limits within which enforcement agencies may operate.

    Conclusion

    A State penal law can name a social danger without ever defining the act it punishes. That is what this ruling ends. The reform it invites is legislative, because the offence, its ingredients and its punishment have to sit in the statute a legislature passes rather than in rules the executive writes afterwards. The marker to watch is whether Uttar Pradesh re-enacts its special law with the offence on the face of the statute, and whether other State special laws that punish a status recorded by police are now tested on the same ground.

    Matching Previous Year Question

    “[2021] A legislation which confers on the executive or administrative authority an unguided and uncontrolled discretionary power in the matter of application of law violates which one of the following Articles of the Constitution of India? (a) Article 14 (b) Article 28 (c) Article 32 (d) Article 44 (a)”

  • When the House ceases to hold power to account

    When the House ceases to hold power to account

    Why in the News

    India’s legislatures now meet for a fraction of the time they once did, and the instruments through which they hold the executive to account have contracted with the calendar. The two Houses of Parliament averaged 127 sitting days a year in the 1950s and 138 in the following decade. The average fell to 55 days during the 17th Lok Sabha (2019 to 2024), with over 25 percent of available time lost to disruptions. State assemblies have fallen from about 80 days a year six decades ago to under 25, against the bar in Article 174(1) on a gap of more than six months between two sittings. The tension is that the constitutional floor is being treated as the target, so a House can be fully compliant with the Constitution and still not scrutinise the government at all.

    How far has the legislative calendar contracted?

    1. Parliament’s decline: The two Houses averaged 127 days a year in the 1950s and 138 in the 1960s. The 17th Lok Sabha averaged 55 days.
    2. Time lost within the sitting days: The share of available time lost to disruptions has risen past 25 percent, so the effective working calendar is smaller than the sitting day count suggests.
    3. The State picture is worse: Assemblies averaged around 80 days or more six decades ago and now sit for fewer than 25 days a year.
    4. The constitutional minimum as a ceiling: Article 174(1) requires that six months not elapse between two sittings of a State legislature. Sessions are scheduled to satisfy that formality rather than to a calendar of business.

    What does the State assembly record show?

    1. Uttar Pradesh: From 45 to 50 days a year six decades ago to 15 to 20 days now.
    2. Karnataka: From around 75 to 80 days in the 1970s to an average of 25 to 33 days.
    3. Tamil Nadu: From 64 days a year to 32 days.
    4. Punjab and Haryana: From 40 days to 10 to 15 days.
    5. Bihar: From 60 days a year to 30 days.
    6. Maharashtra, Gujarat and Tripura: Sitting days in all three have fallen by 50 percent.

    How does a shorter calendar disable the scrutiny instruments?

    1. Question Hour loses its slots: Fewer sitting days mean fewer occasions on which ministers face direct questioning, and the instrument’s deterrent value rests on its frequency rather than on any single answer.
    2. Call Attention Motions and Demands for Grants: Both compete for the same shrinking floor time, so departmental spending is approved with progressively less examination.
    3. The anticipatory effect is gone: Ministers once prepared for a session expecting to be pinned down, and presiding officers pulled up those who came unprepared or misled the House. A House that hardly meets removes that expectation.
    4. Committees are not compensating: Attendance in parliamentary committees runs at about 50 percent, so the forum meant to substitute for floor scrutiny is itself half attended.

    What does the speed of law making reveal?

    1. A hospital network in ninety seconds: On 30 August 2012 the Lok Sabha passed the AIIMS (Amendment) Bill, providing for six such hospitals at a cost of Rs 4,900 crore, in a minute and a half.
    2. Three bills without debate: On 3 September 2012 the Lok Sabha passed three bills without debate, among them the Protection of Women Against Sexual Harassment at Workplace Bill, which governs the conditions of work of millions of women.
    3. Two minute statutes: A bill creating three new High Courts in the Northeast was moved at 12:03 and passed at 12:05. The NIMHANS Bill was passed the following day in two minutes.
    4. The pattern is current, not historic: In this year’s Monsoon Session two bills were cleared in three minutes each and three others in four minutes each.

    What do the perquisites and the running cost say about the institution’s return?

    1. Firearms through the Customs route: Parliament was informed four decades ago that 38 Members of Parliament had been allotted guns seized by the Customs Department over a period of 15 months.
    2. The practice continued: A Right to Information application established that 82 MPs were allotted weapons between 2001 and 2012, including 13 who were facing criminal charges such as murder, attempt to murder and kidnapping.
    3. The cost curve: Running Parliament cost Rs 36,000 a day in the 1950s, Rs 1.23 crore a day in 2004 and Rs 2 crore in 2012. PRS Legislative Research now estimates it at about Rs 9 crore a day.
    4. Cost against output: The daily cost has risen by orders of magnitude while sitting days have fallen by more than half, so the expenditure per unit of scrutiny has risen on both sides of the ratio at once.

    Challenges to legislative scrutiny of the executive

    1. Disruption is a cross party incentive: Whichever parties occupy the opposition benches gain more visibility from an adjournment than from a debate, so obstruction is rational for the side that is supposed to scrutinise. Eg. Slogan shouting that ends in adjournment recurs irrespective of which alliance holds office at the Centre or in the States.
      The Fix: Transfer control of the sitting calendar and a fixed quota of opposition days to a Business Advisory Committee decision the government cannot override.
    2. The executive controls when the House meets: Summoning is done on the advice of the Council of Ministers, so the body being scrutinised decides the scrutiny calendar. Eg. State governments schedule sessions to clear the six month bar in Article 174(1) and no further.
      The Fix: Fix a statutory minimum of sitting days a year, along the lines of the 110 day floor recommended by the National Commission to Review the Working of the Constitution, 2002.
    3. The anti defection law suppresses independent scrutiny: A member voting against the party line on a government bill risks disqualification under the Tenth Schedule, which removes the incentive to examine legislation on merit. Eg. Party whips are routinely issued on ordinary legislation and not only on confidence motions.
      The Fix: Restrict the whip to confidence and money votes, as the Venkatachaliah Committee, 2002 recommended, so a vote against a clause is not a vote against the party.
    4. Committee referral is discretionary: A presiding officer decides whether a bill goes to a Departmentally Related Standing Committee, so a government can pass a bill without any clause by clause examination. Eg. Only about 17 percent of bills in the 17th Lok Sabha were referred to the relevant standing committee, against 71 percent in the 15th.
      The Fix: Make committee referral mandatory for every bill other than a money bill, with a fixed reporting deadline after which the House may proceed regardless.
    5. Members lack independent research capacity: A legislator without research staff cannot interrogate a ministry’s own numbers, so scrutiny depends on what the executive chooses to disclose. Eg. The United Kingdom Parliament maintains a dedicated Research Service for its members, which has no Indian equivalent inside the institution.
      The Fix: Fund a dedicated legislative research unit attached to each standing committee, staffed independently of the ministries it examines.
    6. Financial scrutiny happens after the money is voted: The Public Accounts Committee examines expenditure once the Comptroller and Auditor General has reported on it, so the examination is retrospective. Eg. Between 2019 and 2023 about 80 percent of the Budget was passed without discussion, and in 2023 the entire Budget was approved without debate.
      The Fix: Fix a minimum number of days for discussion of the Demands for Grants of a rotating set of ministries before the guillotine is applied.

    Conclusion

    A legislature can satisfy every constitutional requirement on sittings and still stop scrutinising the government, which is what the sitting day and disruption record shows. Cutting members’ salaries and allowances treats remuneration as the lever, when the levers that actually decide scrutiny are who controls the calendar, whether committee referral is compulsory, and whether a whip can be issued on ordinary legislation. The forum to watch is the next conference of presiding officers, since a statutory floor on sitting days and a mandatory referral rule are decisions that body can place on its agenda.

    What is executive accountability to the legislature?

    1. About: It is the principle that the political executive holds office only so long as it retains the confidence of the popularly elected House, and must answer to that House for its decisions and its spending.
    2. Rationale: India adopted a parliamentary system to secure harmony between legislature and executive and to make the government continuously answerable rather than answerable only at an election. Article 75(3) makes the Council of Ministers collectively responsible to the Lok Sabha.
    3. The questioning instruments: Zero Hour lets members raise urgent issues without notice, and Half Hour Discussions seek ministerial statements on matters already raised. Motions of no confidence, censure and adjournment express disapproval, and a passed no confidence motion requires the government to resign. Eg. The censure motion of 2012 against the policy on foreign direct investment in retail.
    4. Financial and committee control: Cut Motions allow the House to reduce or reject specific budget allocations. The Public Accounts Committee, the Estimates Committee and the Departmentally Related Standing Committees carry the detailed financial and policy oversight. Eg. The Public Accounts Committee’s 2011 report on the 2G spectrum case.

    Back2Basics: PRS Legislative Research

    1. What it is: PRS Legislative Research is an independent, non profit research initiative based in New Delhi that tracks the functioning of Parliament and the State legislatures.
    2. What it produces: It publishes sitting day counts, session productivity, bill summaries, budget analyses and voting records, and provides legislative briefs to members across parties.
    3. Its standing: It is not a government body and has no statutory role, so its figures are cited precisely because they are compiled outside the institutions they measure.

    Matching Previous Year Question

    “[2021, GS2, 10 marks] To what extent, in your view, the Parliament is able to ensure accountability of the executive in India?”

  • Punjab stand on judge sets disturbing precedent

    Why in the News

    Justice Ashwani Kumar Mishra has taken oath as Chief Justice of the Punjab and Haryana High Court, with the front-row chair reserved for the Punjab Chief Minister left empty. A day earlier the State Cabinet had asked the Punjab Governor to hold off the oath-taking. Its stated ground was that the Centre notified the appointment without the State’s consent, in breach of the Memorandum of Procedure (MoP) that governs judicial appointments. The Supreme Court Collegium had recommended Justice Mishra and three other judges as chief justices of four High Courts on 6 August, and the Centre notified the appointment on 5 September. The contest is between a State’s right to be consulted on a High Court appointment and a consultative process that fixes no deadline for the State to answer.

    What is the Memorandum of Procedure?

    1. The rulebook for judicial appointments: The MoP sets out the sequence by which judges of the higher judiciary are recommended, consulted upon and appointed.
    2. It requires the States to be consulted: Before a High Court appointment is notified, the Centre must consult the State concerned.
    3. It fixes no time limit on the State: The document sets no deadline for a State to send its response.
    4. It is an executive document, not a statute: The MoP is settled between the Centre and the judiciary, and a revised version sought after the National Judicial Appointments Commission was struck down in 2015 remains unfinished.

    What is Punjab’s case?

    1. Consent was not obtained: The Cabinet’s position is that the Centre notified the appointment without the State’s concurrence, which it treats as a breach of the MoP.
    2. No deadline binds the State: Punjab is correct that the MoP prescribes no deadline for a State’s response, so a delayed reply violates nothing on the document’s own terms.
    3. The flexibility has a purpose: That absence of a deadline exists because judicial appointment is designed as a consultative process rather than a clearance queue.

    Why does the case not hold?

    1. Weeks were available and went unused: If the State government had reservations about Justice Mishra, it had weeks in which to put them on file, where they could have been examined on their merits.
    2. The silence blocked three other courts: The delay in Punjab’s response held up all four chief justice appointments recommended in the same Collegium resolution.
    3. The court had recently ruled against the State: As Acting Chief Justice, Justice Mishra’s bench pulled up Punjab in August for withholding dearness allowance dues and for finding ample money for advertising. His court also heard a Mohali case in which allegations were made against the Chief Minister’s wife, which the ruling party has described as politically motivated.

    Is this an isolated episode?

    1. The same move was attempted in Delhi: The Aam Aadmi Party earlier sought to have Justice Swarana Kanta Sharma taken off the appeal in the excise policy case in which its leaders are arraigned as accused.
    2. The precedent this sets: Treating an adverse order as a personal affront converts a judicial outcome into a ground for obstructing an appointment, which is a template no political party should be able to rely on.

    What reform does the episode point to?

    1. Defined timelines belong in the MoP: The episode makes the case for writing fixed response periods into a document that currently has none.
    2. A benchmark already exists on the other side: The Supreme Court has set the Centre a benchmark of three to four weeks for clearing names reiterated by the Collegium.
    3. Deemed consent closes the gap: A comparable window for State responses, after which consent is treated as given, would remove the ambiguity this episode exposed.

    Conclusion

    Disagreement between the Centre and a State over an appointment is ordinary constitutional business, and nothing about it is improper. Withholding a reply is not disagreement; it is the absence of one, and it quietly converts a consultative step into a veto that no rule ever granted. A written objection with reasons can be examined and answered; silence can only be waited out. What remains unresolved is whether the duty to consult carries a corresponding duty to respond, and the present arrangement supplies no answer either way.

    Back2Basics: The Collegium

    1. What it is: The Collegium is the body of senior judges that recommends appointments and transfers in the higher judiciary. It finds no mention in the text of the Constitution.
    2. Its composition: For Supreme Court appointments it consists of the Chief Justice of India and the four seniormost judges of the Supreme Court.
    3. Where it came from: It emerged from the Second Judges Case (1993), which read “consultation” in Articles 124 and 217 as concurrence, and was expanded by the Third Judges Case (1998).
    4. Its binding force: The government may return a recommendation once, but a name reiterated by the Collegium is binding on it.

    Matching Previous Year Question

    “[2025, GS2, 15.0 marks] Discuss the evolution of collegium system in India. Critically examine the advantages and disadvantages of the system on appointment of the Judges of the Supreme Court of India and that of the USA.”

  • CJP cases scrapped: Supreme Court’s much-debated powers under Article 142

    Why in the News

    The Supreme Court has used Article 142 of the Constitution to quash first information reports filed across several States against participants in the nationwide examination protests led by the Cockroach Janta Party (CJP). The order gives legal force to an assurance the Union government had already given to CJP members. A negotiated settlement between the Centre and a protest group therefore takes effect as a judicial decree. Article 142 allows the Court to pass any decree or order necessary for doing “complete justice” in a matter pending before it, and it neither defines that phrase nor states when the power may be used. The Court has itself held that this power may fill a gap in a statute but may not override a statutory scheme. What is contested is whether quashing thousands of pending cases in a single order, without examining any of them on its own facts, fills such a gap or replaces one.

    What is Article 142?

    1. The text of the power: Article 142 lets the Supreme Court pass such decree or order as is necessary for doing complete justice in any cause or matter pending before it.
    2. What the provision leaves open: It does not define “complete justice” and it does not specify the circumstances in which the power may be used.
    3. Its statutory ancestor: The provision traces to Section 210 of the Government of India Act, 1935, and behind that to the colonial practice of deciding disputes on “justice, equity and good conscience” where the written law was silent.

    How did a power this wide enter the Constitution without debate?

    1. Adopted as Draft Article 118: The provision appeared in the Draft Constitution as Article 118 and was adopted by the Constituent Assembly on 27 May 1949 without a debate.
    2. Two amendments were dropped: Two amendments to it were moved and then withdrawn.
    3. The nearest the Assembly came to discussing it: During an earlier debate on a related Article granting the court special leave to hear appeals, the member Krishna Chandra Sharma compared the proposed powers to the Privy Council’s own power to step in wherever justice demanded, appeal or no appeal.
    4. The scope was left to the Court: The content of the Court’s widest power was worked out case by case over the following seven decades rather than settled at the drafting stage.

    How has the Court used this power?

    1. The Bhopal gas tragedy settlement: Article 142 was used to secure a payout of 470 million dollars from Union Carbide and to quash the criminal cases against the company.
    2. The Ayodhya title dispute: The power was used to settle the dispute on a “preponderance of probability” and to direct that five acres of land be given to the Muslim side.
    3. A convict’s release: The Court ordered the release of A G Perarivalan, a convict in the Rajiv Gandhi assassination case.
    4. Routine civil use: The provision is also used to grant divorce where a marriage has irretrievably broken down, and in public interest litigation.
    5. The measured scale of its use: An empirical study by researchers at the Indian Institute of Management, Ahmedabad examined every case between 1950 and 2023 citing “Article 142” or “complete justice”, and found 1,579 references and 791 direct invocations, mostly in civil matters.

    Has the Court fenced its own power?

    1. Consistency with law and rights: In Prem Chand Garg versus State of Uttar Pradesh (1962) the Court held that orders under Article 142 must still be consistent with fundamental rights and with the law.
    2. Supplement, not supplant: In Supreme Court Bar Association versus Union of India (1998) the Court held that Article 142 can supplement a statute by filling a gap the law leaves open. The same ruling held that it cannot supplant a statute or override an existing statutory scheme.
    3. The limits are not self enforcing: The Court has often disregarded its own caution, and no institution outside the Court can hold it to these two rulings.
    4. Discretion multiplies across benches: The effect of an undefined discretion is magnified in a court of 38 judges sitting mostly in benches of two.

    How does the CJP order test that limit?

    1. The ordinary statutory route: A first information report is examined on its own facts before being quashed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, with the court asking whether an offence is made out or whether the case is plainly malicious.
    2. What the order did instead: Thousands of first information reports across several States were clubbed together and quashed without that scrutiny, as part of a negotiated settlement.
    3. The statutory scheme is displaced, not supplemented: The order substitutes the Court’s view of how the law ought to operate for the procedure the statute lays down for quashing.
    4. The Court also decides who is excluded: The same discretion under Article 142 determines which protesters are left out of the relief.
    5. The scholarly objection: Legal scholar Gautam Bhatia argues that criminal law provisions cannot be overridden through a blanket judicial decree.

    Why had Article 142 already drawn criticism?

    1. The Tamil Nadu Bills order: The Court used the same provision last year to deem long withheld Bills of the Tamil Nadu legislature as assented to.
    2. The response from the Vice President: The Vice President described that use of the power as a “nuclear missile” against democratic institutions.
    3. A former law officer’s warning: A former Attorney General of India wrote in 2017 that the provision had done “tremendous good” for deprived sections of society, and that it was time to build in checks and balances.
    4. A proposal to restrict who may invoke it: After the Sabarimala judgment the same former Attorney General described Article 142 as a “Kamdhenu from which unlimited powers flowed”, and proposed that only Constitution Benches of five judges be allowed to invoke it, so that its use does not turn on the reading of a single smaller Bench.

    Challenges to Article 142

    1. No stated standard for “complete justice”: The Constitution attaches no test to the power, so its width is settled afresh in each case by the Bench exercising it. Eg. In Delhi Development Authority versus Skipper Construction Company (1996) the power was used to reach the personal assets of persons who were not parties to the proceeding before the Court.
      The Fix: Require every order made under the provision to record on the face of the order the specific statutory gap it is filling and the limits of the relief granted.
    2. Bench strength does not scale with the consequence: No minimum Bench is prescribed, so an order altering an outcome for an entire class can issue from a small Bench. Eg. A three judge Bench in 2024 set aside the declared result of the Chandigarh mayoral election and declared the defeated candidate elected.
      The Fix: Maintain a published, reasoned compilation of orders made under the provision, so a body of standards accumulates instead of scattered discretion.
    3. The relief creates no right for the next litigant: An order for complete justice is granted on the facts of one case, so a similarly placed person cannot claim the same relief from a lower court. Eg. Divorce on the ground of irretrievable breakdown, allowed in Shilpa Sailesh versus Varun Sreenivasan (2023), is available only from the Supreme Court, since that ground does not exist in the Hindu Marriage Act, 1955.
      The Fix: Where the power is repeatedly used to fill the same statutory gap, refer that gap to the Union government with a reasoned recommendation to amend the statute.
    4. Only the same court can correct such an order: An order issues from the highest court, so the sole remedy is a review or a curative petition before that court. Eg. The curative petition route created in Rupa Ashok Hurra versus Ashok Hurra (2002) is itself a judge made remedy and succeeds in very few cases.
      The Fix: List every order that departs from a statutory scheme for a compliance hearing before the same Bench, so an order that misfires is corrected on the record.

    Conclusion

    The Court’s limits on its own widest power are self imposed, and nothing outside the Court enforces them. The unresolved question is whether a power designed to fill silences in the law may be used to set aside a procedure the law expressly provides, on terms agreed between a litigant and the government. What to watch is whether the Court itself frames a standard for when the power may be exercised, because no other institution can.

    Back2Basics: Bharatiya Nagarik Suraksha Sanhita, 2023

    1. What it is: The statute governing criminal procedure in India, covering investigation, arrest, trial and the powers of criminal courts.
    2. What it replaced: It came into force on 1 July 2024 in place of the Code of Criminal Procedure, 1973.
    3. Its companion statutes: It was enacted alongside the Bharatiya Nyaya Sanhita, 2023 and the Bharatiya Sakshya Adhiniyam, 2023.
    4. The quashing power it carries: Section 528 preserves the inherent powers of a High Court, which include quashing proceedings to prevent abuse of the process of a court.

    [2019, GS2, 10 marks] Do you think that constitution of India does not accept principle of strict separation of powers rather it is based on the principle of ‘checks and balance’? Explain.”

  • Supreme Court invokes Article 142 to quash FIRs against student protesters, sets up panel on use of force

    Why in the News

    A three judge Bench of the Supreme Court agreed to use its Article 142 power to quash first information reports (FIRs) naming students who joined the nationwide protests against the NEET-UG paper leak. The move separates two categories the State had merged, peaceful student protesters and 2,873 persons with serious criminal antecedents, and forces a question the criminal process itself had avoided, who decides where lawful dissent ends. The Court simultaneously moved from case specific relief toward standing rules, proposing a high powered committee to lay down guidelines and protocol for the police use of force.

    What is Article 142 of the Constitution?

    1. Plenary power to do complete justice: Article 142(1) empowers the Supreme Court to pass any decree or order necessary for doing complete justice in any cause or matter pending before it.
    2. Enforceable across India: Such a decree or order is enforceable throughout the territory of India in the manner prescribed by or under any law made by Parliament.
    3. Ancillary powers under Article 142(2): The Court may secure the attendance of any person, the discovery or production of documents, and the investigation or punishment of contempt of itself.
    4. Not bound by ordinary statutory limits: Prohibitions in ordinary law do not operate as limitations on the Article 142 power, which is why the Court can quash an FIR that a statutory route would not permit it to touch.
    5. Discretionary and case specific: The power is exercised on the facts of the particular case and does not by itself create a general rule for later cases.

    What is a Facial Recognition System (FRS)?

    1. Biometric matching technology: A Facial Recognition System (FRS) captures a facial image and compares its measurable features against a stored database to return a probable identity match.
    2. Deployment at the protest site: The police affidavit stated that FRS is not deployed for indiscriminate surveillance and does not automatically capture, create or maintain profiles of every individual present.
    3. Database composition claimed: The police stated that the record covers faces of persons accused in serious offences, not those in petty matters such as traffic challans.

    What is the proportionality test?

    1. A four part judicial standard: The proportionality test asks whether a State measure pursues a legitimate aim, is rationally connected to that aim, is the least restrictive alternative, and strikes a fair balance between the aim and the rights burdened.
    2. Distinct from a privacy claim: The Bench stated it will examine the FRS deployment on proportionality and not on Article 21, which narrows the enquiry to whether the means matched the stated policing purpose.

    What is the current status of the right to protest in India?

    1. Derived from two Fundamental Rights: The right to protest flows from Article 19(1)(a), freedom of speech and expression, read with Article 19(1)(b), the right to assemble peaceably and without arms.
    2. Available only to peaceful assembly: The protection attaches to assembly that is peaceable and unarmed, and falls away where an assembly turns violent.
    3. Subject to reasonable restrictions: Restrictions are permitted under Article 19(2) on grounds including public order, and under Article 19(3) in the interests of sovereignty, integrity and public order.
    4. No right to an indefinite occupation of public space: The settled position is that a designated protest site may be used, but a public road or thoroughfare cannot be occupied indefinitely.
    5. The Court’s operative position in this case: The Bench stated it would protect students so long as they intended to hold a peaceful and lawful protest and raise demands they expected the authorities to hear.

    Which constitutional provisions govern protest, policing and this jurisdiction?

    1. Article 19(1)(a) and 19(1)(b): Guarantee freedom of speech and expression and the right to assemble peaceably and without arms.
    2. Article 19(2) and 19(3): Permit reasonable restrictions on those two rights, including on the ground of public order.
    3. Article 21: Guarantees life and personal liberty, the route through which privacy and bodily integrity claims against surveillance and force are usually raised.
    4. Article 32: Gives the Supreme Court original jurisdiction to enforce Fundamental Rights, the gateway through which these petitions reached it.
    5. Article 142: Confers the plenary power to pass any order necessary for complete justice, the power the Bench invoked to quash the FIRs.
    6. Article 144: Requires all civil and judicial authorities in India to act in aid of the Supreme Court.
    7. Seventh Schedule, State List Entries 1 and 2: Place public order and police with the States, which is why the Delhi Police answered through the Union in the national capital.

    What exactly did the Court direct on the FIRs?

    1. Quashing confined to student only FIRs: The Bench sought a list of FIRs in which only students were named, and stated it would quash those by invoking Article 142.
    2. Serious antecedents carved out: FIRs involving elements with serious criminal antecedents were left to be decided subject to discussion in court.
    3. Investigation narrowed to a named number: The Solicitor General stated the police would confine investigation to 2,873 persons identified at the protest site with serious criminal backgrounds.
    4. Charges specified for that set: The affidavit named murder, attempt to murder, dacoity, rape and POCSO offences among the charges against those 2,873 persons.
    5. Non disclosure of FIR details flagged: Counsel for the students stated the police had not shared even the FIR numbers despite promising no action against peaceful protesters.
    6. Generic labels rejected: The Bench held that the State cannot refer to undesirable elements in generic terms and must at least identify them.

    Why is the Court routing the inquiry through a high powered committee?

    1. Proposed composition: The committee would comprise a former Supreme Court judge, a former High Court Chief Justice and a retired police officer of Director General of Police rank.
    2. Consent already secured: The Bench stated it had obtained the consent of a former Director of the Central Bureau of Investigation (CBI) and a retired Director General of Police of an unconnected State.
    3. Two names kept open deliberately: Both options were retained so that no allegation could later be raised against the presence of the CBI officer on the panel.
    4. Mandate beyond this protest: The Bench identified laying down guidelines and protocol for the use of force as a task for the committee, alongside issues needing immediate attention.
    5. Urgent items identified: Allegations of police personnel sexually molesting women protesters, and online harassment and victimisation of vulnerable persons, were listed for urgent examination.
    6. Evidence to be transferred: The Court stated it would direct the authorities to hand over all digital and other materials to the committee.

    What does the police affidavit claim about the use of force at Jantar Mantar?

    1. Force described as graded: The affidavit stated the force employed was proportionate, reasonable, graded and in accordance with law, and used only after protesters resorted to violence.
    2. Tear smoke shells as last resort: The police stated that tear smoke shells were used only as a last resort and that the lathi charge was limited and controlled.
    3. Specific denials recorded: The affidavit denied the use of nail lathis and denied that officers manhandled women protesters.
    4. Plainclothes personnel admitted: The police admitted deploying plainclothes personnel as spotters, describing this as a globally followed crowd control arrangement at large gatherings.
    5. Hindsight objection raised: The police argued that instantaneous operational decisions cannot be misjudged later by selectively relying on isolated video clips or media reports.
    6. Counter on accountability: Counsel for the petitioners pointed out that the affidavit records no internal or administrative action against the personnel concerned.

    Why has the Court framed the surveillance question as proportionality rather than privacy?

    1. A narrower and faster enquiry: Testing proportionality asks whether FRS deployment matched its stated purpose, which the Bench can decide on the record without reopening the settled privacy jurisprudence.
    2. Sequencing stated by the Bench: The primary question was identified as whether excessive force was used, with the FRS aspect to be examined after that.
    3. The petitioners’ wider claim left untested: Counsel argued that FRS cannot be used at all and that data on persons other than the accused are also retained.
    4. The storage objection: Counsel for a Rajya Sabha member submitted that the data were stored with private entities, a custody question a proportionality enquiry does not automatically reach.
    5. The data the police disclosed: FRS returned 2,873 persons with serious criminal antecedents, of whom 92 were involved in over 10 cases each and 47 of those 92 were history sheeters.
    6. The unresolved consequence: A proportionality finding settles whether this deployment was excessive, not whether a permanent facial database of protest sites is constitutionally permissible.

    What are the major debates surrounding Article 142 and the policing of protest?

    1. Complete justice against statutory command: One position treats Article 142 as a residual equity power to fill gaps, the other holds that it cannot be used to supplant express statutory provisions.
    2. Precedent versus one off relief: Counsel opposing the quashing asked whether this would be a one off order or a precedent, since a mass quashing of FIRs invites replication in every future agitation.
    3. Remorse as a condition for relief: The objection that the students had not expressed a shred of remorse or regret raises whether contrition is a legitimate precondition for constitutional relief.
    4. Lawfulness of the march itself: It was submitted that the 20 July march towards Parliament was unlawful, which reframes the dispute from excessive force to the legality of the assembly.
    5. Individual accountability against institutional inquiry: Petitioners pressed for immediate action against identified officers, while the Bench held that giving directions now would curtail the committee’s own role.
    6. Surveillance as ordinary policing: The police characterised FRS as a legitimate, bona fide and proportionate policing measure, which if accepted normalises biometric identification at every large gathering.

    Challenges to the use of Article 142

    1. Absence of a stated limiting principle: No settled test governs when the power may be used, so its exercise turns on the composition of the Bench, e.g. the 2016 direction banning liquor vends within 500 metres of national and State highways was substantially diluted by the Court itself in 2017.
    2. Encroachment on the legislative domain: Orders made under Article 142 can create obligations Parliament never enacted, e.g. the 2016 direction making the National Anthem compulsory in cinema halls, which the Court made optional again in 2018.
    3. No appeal against the order: A direction issued by the Supreme Court under Article 142 is not appealable, so an error of fact in the underlying record survives uncorrected, e.g. sealed cover material relied on in several public interest matters was never tested by the affected parties.
    4. Selective relief risk: Quashing an entire class of FIRs without a public list invites the charge that relief tracked the political salience of the protest, e.g. FIRs arising from other agitations of the same period, including the Siwan firing incident of 25 July, remain live.
    5. Executive resistance to enforcement: An Article 142 order still depends on the executive for compliance, e.g. the April 2025 order deeming Tamil Nadu bills assented led to a Presidential Reference rather than settled implementation.
    6. Displacement of ordinary remedies: Routine use encourages litigants to bypass High Court remedies under Article 226, e.g. FIR quashing petitions ordinarily lie under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 before the High Court.

    Conclusion

    The Bench used an extraordinary constitutional power not to settle guilt but to draw a line the police investigation had not drawn, between a protest and the criminal record of individuals inside it. The unresolved question is institutional rather than factual, since a committee of retired judges and a retired police officer will now write the protocol for the use of force that no statute currently supplies. The proportionality enquiry into facial recognition, framed expressly outside Article 21, will decide whether biometric identification at a protest site is treated as a policing tool or as a rights question. The order framing the committee’s terms of reference was stated to be forthcoming the next day.

  • Can Parliament remove a judge who has resigned?

    Why in the News

    A parliamentary inquiry committee found all three charges proved against a former High Court judge, including failure to explain cash recovered from his residence and interference with evidence. The issue is whether the removal process can continue after his resignation.

    Removal of Judges: Constitutional Framework

    1. Article 124(4): Supreme Court judges can be removed only for proved misbehaviour or incapacity.
    2. Article 217: Deals with the tenure and removal of High Court judges.
    3. Judges (Inquiry) Act, 1968: Provides the inquiry mechanism and formulation of charges.
    4. Parliamentary approval: Removal requires a special majority in each House, in the same session.
    5. Final step: After Parliament passes the address, the President issues the removal order.

    What did the Inquiry Committee Find?

    • All three charges were proved.
    • The judge failed to satisfactorily explain the cash recovered from his residence.
    • The committee found attempts to interfere with evidence.

    Key Constitutional Issue After Resignation

    • Removal is primarily linked to holding judicial office.
    • Resignation ends the judge’s tenure, creating a question about whether Parliament can still complete the removal process.
    • Possible consequences involving pension or future disqualification make the issue constitutionally significant.
    • There is no settled precedent on completing the removal process against a judge who has already resigned.

    Prelims Facts

    • Ground for removal → Proved misbehaviour or incapacity
    • High Court judge → Article 217
    • Supreme Court judge → Article 124
    • Inquiry procedure → Judges (Inquiry) Act, 1968
    • Removal requires → Special majority in both Houses
    • Final removal order → President
    • Policy disagreement → Not a ground for removal
    • Historical fact → No Indian judge has so far been removed after completion of the parliamentary removal process.

    “[2025, GS2, 15] “Constitutional morality is the fulcrum which acts as an essential check upon the high functionaries and citizens alike…” In view of the above observation of the Supreme Court, explain the concept of constitutional morality and its application to ensure balance between judicial independence and judicial accountability in India.”

    [2021] With reference to Indian Judiciary, consider the following statements:
    1. Any retired judge of the Supreme Court of India can be called back to sit and act as a Supreme Court judge by the Chief Justice of India with prior permission of the president of India.
    2. A High Court in India has the power to review its own judgement as the Supreme Court does.
    Which of the statements given above is/are correct?

    [A] 1 only

    [B] 2 only

    [C] Both 1 and 2

    [D] Neither 1 nor 2

  • Supreme Court clarifies scope of police custody under Section 187(2) BNSS

    Why in the News?

    The Supreme Court held in The State of Andhra Pradesh vs Suda Suresh Veera Venkata Naga Raju that Section 187(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 enlarges the window during which police custody may be sought. The ruling has exposed the difference between the new code and the old regime, under which police custody was confined to the first 15 days of remand alone. Police custody is now available in parts, though in aggregate not exceeding 15 days, during the first 40 or 60 days of detention.

    What is Section 187(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023?

    1. Governing provision: Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the criminal procedure code that replaced the Code of Criminal Procedure, 1973, governs the detention of an accused when investigation cannot be completed in 24 hours.
    2. Enlarged window: Under Section 187(2), a magistrate may authorise detention not exceeding 15 days in the whole, or in parts, at any time during the initial 40 days or 60 days of a total detention period of 60 or 90 days.

    What is default bail?

    1. Definition: Where investigation is not completed within the stipulated period, the accused becomes entitled to release, widely known as default bail.
    2. Time limits under Section 187(3): Judicial detention may extend up to 90 days for offences punishable with death, life imprisonment or imprisonment of 10 years or more, and up to 60 days for any other offence.

    What is the current status of pre-trial custody rights in India?

    1. Twenty four hour rule: Section 58 of the BNSS provides that a person arrested without warrant cannot be detained beyond 24 hours without a magistrate’s authorisation under Section 187.
    2. Fifteen day cap on police custody: Police custody remains capped at 15 days in aggregate, but may now be spread across the early investigation period rather than the first 15 days alone.
    3. Right to counsel: Section 38 of the BNSS entitles an arrested person to meet an advocate of choice during interrogation, though not throughout interrogation.
    4. Recording safeguard: Audio visual recording of the actual interrogation and of any discovery or recovery satisfies the transparency requirement.

    Constitutional provisions related to arrest and detention:

    1. Article 22(1): Guarantees the right to be informed of grounds of arrest and to consult a legal practitioner of choice.
    2. Article 22(2): Requires production before the nearest magistrate within 24 hours of arrest.
    3. Article 21: Protects life and personal liberty, permitting deprivation only by a just, fair and reasonable procedure established by law.
    4. Article 20(3): Protects against self incrimination, relevant to the presence of counsel during interrogation.

    What did the Supreme Court hold?

    1. No absolute outer limit: A magistrate cannot place an absolute and non extendable outer limit on custody, since such a limit forecloses recourse to Section 187(2) of the BNSS.
    2. Purpose of the change: The enlarged window is intended to meet situations where fresh facts, discoveries or leads emerge during the course of investigation.
    3. Additional custody granted: The Court permitted 7 days of additional police custody so that the total police remand would not exceed 15 days.
    4. Facts of the case: In a custodial death case the victim’s body remained untraced, the original CCTV hard disks were yet to be discovered, and recoveries under the Bharatiya Sakshya Adhiniyam were imminent.

    How does the new remand window differ from the old code?

    1. Old Section 167 CrPC: Detention in police custody could not be granted beyond the initial 15 days in the whole under Section 167 of the Code of Criminal Procedure, 1973.
    2. Alteration within the window: Even under the old code, during the first 15 days a magistrate could alter custody from judicial to police and back.
    3. New flexibility: Under the BNSS police custody may be sought in parts across the first 40 or 60 days, keeping the aggregate at 15 days.

    What did the Court hold on the presence of an advocate?

    1. Not continuous: Section 38 does not contemplate the continuous, ongoing physical presence of an advocate for the entirety of each interrogation session.
    2. Line of sight: The advocate may remain present within the site of interrogation from where he can see the accused, but not throughout the questioning.
    3. Recording over escort videography: Instead of uninterrupted videography of the accused in transit, audio visual recording of the interrogation and of any recovery meets the requirement.

    What are the major debates surrounding the enlarged custody window?

    1. Liberty versus investigation: Spreading police custody across 40 or 60 days risks repeated custodial spells, weighed against the need to pursue late emerging leads.
    2. Magistrate’s discretion: The ruling limits a magistrate’s power to foreclose future custody, raising the question of how liberty is protected during the extended window.
    3. Counsel access: The line of sight standard for the advocate leaves open how effectively the right against coercion is protected during interrogation.

    Way Forward:

    1. Reasoned remand orders: Require magistrates to record specific reasons linking each spell of police custody to investigative need.
    2. Guard against repeat custody: Frame guidelines to prevent the enlarged window becoming a route to successive custodial spells.
    3. Effective counsel access: Clarify practical standards for an advocate’s presence to protect against coercion.
    4. Mandatory recording compliance: Ensure audio visual recording of interrogation and recovery is uniformly implemented and preserved.
    5. Judicial training: Orient magistrates on the new remand architecture to balance liberty with investigation.

    Conclusion:

    The Court has clarified that police custody under the BNSS is capped at 15 days in aggregate but may be sought in parts through the first 40 or 60 days of investigation, not the first 15 days alone. The ruling reflects the legislative intent to accommodate fresh discoveries during a probe. The interpretation now governs how magistrates authorise and structure police remand under the new code.

    Back2Basics:

    BNSS, BNS and BSA

    1. Bharatiya Nyaya Sanhita, 2023: Replaced the Indian Penal Code, 1860 as the substantive criminal law.
    2. Bharatiya Nagarik Suraksha Sanhita, 2023: Replaced the Code of Criminal Procedure, 1973 governing procedure, arrest, investigation and trial.
    3. Bharatiya Sakshya Adhiniyam, 2023: Replaced the Indian Evidence Act, 1872 governing admissibility of evidence.
    4. Effective date: The three codes came into force on 1 July 2024.
    5. Zero FIR and e-FIR: The BNSS recognises registration of a First Information Report irrespective of jurisdiction and enables electronic reporting.

    PYQ Relevance

    [UPSC 2026] Which of the following statements about a Zero First Information Report (Zero FIR) under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 is/are correct?

    1. A Zero FIR can be lodged at a police station, even though the place of commission of a cognizable/non-cognizable offence is outside the territorial jurisdiction of that police station. 2. The Officer-in-Charge of the police station where a Zero FIR has been lodged may, with the permission of the competent authority, initiate a preliminary enquiry. 3. Under Zero FIR, it is obligatory for the informant to furnish information electronically.

    (a) 1 and 2 (b) 2 and 3 (c) 1 and 3 (d) 1 only

    Answer: D

  • Inquiry committee finds charges proved against Justice Yashwant Varma; removal under Judges (Inquiry) Act, 1968

    Why in the News?

    A three member inquiry committee found all three charges proved against former judge Justice Yashwant Varma over unexplained burnt currency found at his official residence. The key issue is whether Parliament can continue the removal process after his resignation.

    Judicial Removal Process

    Under the Judges (Inquiry) Act, 1968:

    1. Motion: Signed by 100 Lok Sabha or 50 Rajya Sabha members.
    2. Admission: Speaker/Chairman may admit or reject it.
    3. Inquiry Committee: Supreme Court Judge, Chief Justice of a High Court, and Distinguished jurist
    4. Parliamentary approval: Motion must pass in both Houses by:
      • Majority of total membership, and
      • 2/3 of members present and voting
    5. Final removal: President issues the removal order.

    Constitutional Provisions

    • Article 124(4): Removal of Supreme Court judges for proved misbehaviour or incapacity.
    • Article 124(5): Parliament can regulate the inquiry procedure.
    • Articles 217 & 218: Apply the removal framework to High Court judges.
    • Article 121: Parliament cannot discuss a judge’s conduct except during a removal motion.

    Varma Inquiry: Three Charges

    1. Unexplained cash: Burnt currency found at his official residence.
    2. Evidence preservation: Failure to preserve the material evidence.
    3. Evasive explanations: Committee found his explanations misleading and unsupported.

    Key Constitutional Issue

    • Removal motion was admitted before his resignation.
    • The law does not expressly clarify whether proceedings can continue after resignation.
    • The issue therefore exposes a legal gap concerning post resignation proceedings and consequences for pension and other benefits.

    “[2019] Consider the following statements:

    1. The motion to impeach a Judge of the Supreme Court of India cannot be rejected by the Speaker of the Lok Sabha as per the Judges (Inquiry) Act, 1968.

    2. The Constitution of India defines and gives details of what constitutes “incapacity and proved misbehaviour” of the Judges of the Supreme Court of India.

    3. The details of the process of impeachment of the Judges of the Supreme Court of India are given in the Judges (Inquiry) Act, 1968.

    4. If the motion for the impeachment of a Judge is taken up for voting, the law requires the motion to be backed by each House of the Parliament and supported by a majority of total membership of that House and by not less than two-thirds of total members of that House present and voting.

    Which of the statements given above is/are correct?

    (a) 1 and 2 (b) 3 only (c) 3 and 4 only (d) 1, 3 and 4