Judicial Pendency
Kapil Sibal is wrong — judiciary’s independence is not under threat
From UPSC perspective, the following things are important :
Prelims level: Judicial Review
Mains level: constructive dialogue between the legal and political spheres
Central idea
The article discusses the challenge of legislators practicing law, particularly the dual role of legislator-lawyers, raising concerns about potential conflicts and the normalization of political intervention in the judiciary. It criticizes Kapil Sibal’s confrontational approach, citing its impact on judicial independence, and emphasizes the delicate balance needed for an independent judiciary amid intertwining political and legal roles.
Key Highlights:
- Dual Roles of Legislator-Lawyers: Legislators practicing law face a dilemma, mixing politics with the legal profession, raising concerns about potential conflicts of interest.
- Normalization of Political Intervention: Allegations by Kapil Sibal suggest a trend of normalizing political intervention in the judiciary, using claims like “courts being on trial” to influence decisions.
- False Equivalence with Emergency Era: Critique based on a false equivalence between the 1975 Emergency and present times, disregarding the unique historical context and the active role of the judiciary.
Key Challenges:
- Political-legal Nexus: The intertwining of political and legal roles, especially in the case of legislator-lawyers, poses challenges to the independence and integrity of the judiciary.
- Confrontational Criticism: Sibal’s confrontational criticism, accusing the judiciary of undergoing a radical shift under external pressures, raises concerns about the impact on public trust and institutional respect.
- Undermining Judicial Independence: Multi-layered actions that undermine judicial independence can erode public faith in legal institutions and potentially influence future verdicts.
Key Terms and Phrases:
- Constitutional Amendments: Reference to the numerous constitutional amendments during the 1975 Emergency.
- Judicial Review: The Supreme Court’s expanded role in reviewing legislation on grounds like constitutional morality, manifest arbitrariness, and transformative constitutionalism.
- Impeachment Proceedings: Mention of the threat of impeachment proceedings against Chief Justice Dipak Misra, perceived as an attempt to pressure the judiciary.
Key Quotes:
- “Courts being on trial” – Described as a sophisticated tool to easily deride any unfavorable decision and question the judiciary’s independence.
- “Institutional sabotage” – Sibal’s comments on institutional sabotage are deemed wildly inaccurate and speculative.
Key Statements:
- False Equivalence Critique: The critique based on a false equivalence between the 1975 Emergency and present times, emphasizing the active role of the judiciary in the current era.
- Confrontational Criticism Impact: Sibal’s confrontational criticism may have a chilling effect on the judiciary’s functioning, potentially influencing future verdicts and legal processes.
- Delicate Balance: Emphasizing the need to respect the delicate balance between political advocacy and judicial independence, especially for legislator-lawyers.
Key Examples and References:
- Defections Cases: Reference to recent Supreme Court decisions concerning defections impacting public trust in the democratic process.
- Impeachment Proceedings Threat: Mention of the perceived attempt to pressure the judiciary through the threat of impeachment proceedings against Chief Justice Dipak Misra.
- Sibal’s Role in Criticism: Highlighting Sibal’s consistent and atypical criticism of Supreme Court verdicts, raising questions about his dual roles.
Key Facts and Data:
- Supreme Court’s Intrusive Role: Acknowledgment of the Supreme Court’s more intrusive role in the past decade, impacting the role of the democratically elected legislature.
- Sibal’s Political Transition: Recognition of Kapil Sibal’s transition from a Congress leader to seeking political space, influencing his views and legal perspectives.
Critical Analysis:
- Intertwining Roles Challenge: The intertwining of political and legal roles challenges the delicate balance needed for an independent judiciary and erodes public trust.
- Ethical Standards for Politician-Lawyers: The need for politicians, especially legislator-lawyers, to adhere to ethical standards and maintain the delicate balance between political advocacy and judicial independence.
- Impact on Democracy: Actions perceived as undermining judicial independence can have a profound impact on democracy, influencing public perception and institutional respect.
Way Forward:
- Respect for Judicial Independence: Emphasizing the crucial need to respect the delicate balance between political advocacy and judicial independence to safeguard the credibility of legal institutions.
- Ethical Considerations: Encouraging politicians, especially those with legal acumen, to consider ethical standards in their dual roles to avoid eroding public faith in the judiciary.
- Public Perception Management: Considering how opinions are presented to manage public perception and maintain institutional respect, ensuring a constructive dialogue between the legal and political spheres.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Judicial Pendency
Move towards e-FIR, but with caution
From UPSC perspective, the following things are important :
Prelims level: cognisable offences
Mains level: e-FIR
Central idea
The Law Commission proposes e-FIR registration for unknown accused in cognizable offenses, combining electronic submission with physical signing within three days. Despite ensuring swift crime registration, concerns arise over limited efficacy, emphasizing the importance of human intervention, especially in cases requiring immediate police involvement. The article suggests exploring e-authentication techniques for enhanced verification.
What is e-FIR?
- Definition: Digital system for reporting crimes to the police.
- Process: Information submitted online through a national portal. Complainant required to physically sign the report within a specified timeframe (usually three days).
- Objective: Streamline crime registration with initial electronic submission.
Key provisions of law commissions report
- e-FIR Recommendation: Proposal for e-FIR registration in all cognizable offenses with unknown accused. Verification through OTP and Aadhaar ID proof suggested by the Law Commission.
- Verification Process: Complainant verification through OTP for authenticity. Aadhaar ID proof mandated to confirm the complainant’s identity.
- Information Deletion: Automatic deletion of unverified information within two weeks. Complainant’s failure to sign the e-FIR within the prescribed time leads to deletion.
- Timeframe for Physical Signing: Complainants given three days to physically sign the e-FIR for formal registration. Failure to sign within the stipulated time results in non-registration.
- Human Intervention: The article emphasizes the importance of human interaction in certain cases, suggesting that electronic registration may be suitable only for offenses where immediate police interaction is not crucial.
What are cognisable offences?
- Cognizable Offenses Definition: Offenses for which police can make an arrest without a warrant. Immediate police action is permissible upon receiving information or a complaint.
- Serious Nature: Generally involves more severe crimes. Examples include murder, robbery, kidnapping, and certain types of fraud.
- No Court Permission Needed: Law enforcement can initiate an investigation without court authorization. Immediate action can be taken by the police upon learning about the offense.
- Jurisdictional Variations: Classification as cognizable or non-cognizable may vary in different legal systems. The severity and nature of offenses determine their categorization.
Challenges:
- Limited Efficacy: The concept of e-FIR relies on obtaining information electronically but requires physical signatures within a prescribed time, limiting the effectiveness of the online process.
- Lack of Discussion: The article notes that the Law Commission did not discuss models adopted by states currently lodging e-FIRs, leading to potential gaps in understanding the practical implementation.
Key Phrases:
- Cognizable Offenses: Offenses for which police can make an arrest without a warrant.
- E-authentication Technique: The use of digital signatures or e-authentication techniques, not extensively discussed in the Law Commission’s recommendations.
- Human Interaction: Highlighted as crucial, especially in cases like kidnapping, where immediate police involvement is essential for both medical examinations and crime scene visits.
Key Facts/Data:
- Verification Methods: OTP and Aadhaar are suggested as methods for verifying the complainant’s identity in the e-FIR process.
- Three-Day Timeframe: Complainants have three days to physically sign the e-FIR; otherwise, the information is automatically deleted from the portal.
Way Forward:
- Mandating E-authentication: The article suggests considering the use of e-authentication techniques, such as digital signatures, to enhance the verification process and facilitate immediate e-FIR registration.
- Clarification on Models: The Law Commission and states should provide clearer insights into the practical models adopted for e-FIR registration, addressing potential gaps in the recommendations.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Judicial Pendency
Relevance of Constitution Benches in the Supreme Court
From UPSC perspective, the following things are important :
Prelims level: Constitution Bench
Mains level: Not Much
Central Idea
- CJI D.Y. Chandrachud, took a moment to address a lawyer’s misconceptions regarding the purpose of Constitution Benches in the Supreme Court.
What is a Constitution Bench?
- The constitution bench is the name given to the benches of the Supreme Court of India.
- The Chief Justice of India has the power to constitute a Constitution Bench and refer cases to it.
Constitution benches are set up when the following circumstances exist:
- Interpretation of the Constitution: Article 145(3) provides for the constitution of at least five judges of the court which sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution of India.
- President of India seeking SC’s opinion: When the President has sought the Supreme Court’s opinion on a question of fact or law under Article 143 of the Constitution. Article 143 of the Constitution provides for Advisory jurisdiction to the SC. As per the provision, the President has the power to address questions to the apex Court, which he deems important for public welfare.
- Conflicting Judgments: When two or more three-judge benches of the Supreme Court have delivered conflicting judgments on the same point of law, necessitating a definite understanding and interpretation of the law by a larger bench.
- The Constitution benches are set up on ad hoc basis as and when the above-mentioned conditions exist.
- Constitution benches have decided many of India’s best-known and most important Supreme Court cases, such as:
- K. Gopalan v. State of Madras, 1950 (Preventive detention)
- Ashoka Kumar Thakur v. Union of India, 1972 (OBC reservations) etc.
- Kesavananda Bharati v. State of Kerala, 1973 (Basic structure doctrine) and
Critique and Response
- A Lawyer’s Concern: A litigant had expressed concerns in a letter to the top court’s Secretary General, suggesting that the court was investing excessive time in Constitution Bench cases, neglecting public interest petitions that directly impact common individuals.
- Court’s Defense: CJI challenged this notion, emphasizing that not all Constitution Bench cases revolve around the interpretation of the Constitution.
- Examples Matter: He provided an example of a recent Constitution Bench case concerning whether a person holding a light motor vehicle license can operate a commercial vehicle. This directly affects the livelihood of countless drivers across the nation.
CJI Dispelling Misconceptions
- Not Just “Fancy” Matters: CJI clarified that the Supreme Court doesn’t convene Constitution Benches solely for matters detached from the everyday concerns of ordinary citizens.
- Voice of the Nation: He highlighted instances like the Article 370 abrogation challenge, where the court engaged with the “voice of the nation.” Stakeholders from the Valley actively participated in extensive hearings.
Arguments against such hearings
- People’s Perspective: The Advocate clarified that his objection wasn’t against the court hearing Constitution Bench matters but rather the court’s engagement in public policy issues without adequate public input.
- Court’s Response: CJI countered this argument, citing the Article 370 case as an example where groups of individual interveners from the Valley actively presented their perspectives to the court.
Conclusion
- Balancing Act: CJI’s remarks underscore the delicate balance between addressing constitutional matters and matters of public interest, highlighting that both have their place in the Supreme Court’s agenda.
- Inclusive Justice: The exchange between the Chief Justice and the lawyer reflects the importance of ensuring that the court’s decisions consider the perspectives and concerns of the broader public, especially in cases with significant societal impact.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Judicial Pendency
What is a Constitution Bench?
From UPSC perspective, the following things are important :
Prelims level: Constitution Bench
Mains level: Not Much
Central Idea: A new Constitution Bench led by Chief Justice of India D.Y. Chandrachud is scheduled to start hearing a list of some cases from July 12.
What is a Constitution Bench?
- The constitution bench is the name given to the benches of the Supreme Court of India.
- The Chief Justice of India has the power to constitute a Constitution Bench and refer cases to it.
Constitution benches are set up when the following circumstances exist:
- Interpretation of the Constitution: Article 145(3) provides for the constitution of at least five judges of the court which sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution of India.
- President of India seeking SC’s opinion: When the President has sought the Supreme Court’s opinion on a question of fact or law under Article 143 of the Constitution. Article 143 of the Constitution provides for Advisory jurisdiction to the SC. As per the provision, the President has the power to address questions to the apex Court, which he deems important for public welfare.
- Conflicting Judgments: When two or more three-judge benches of the Supreme Court have delivered conflicting judgments on the same point of law, necessitating a definite understanding and interpretation of the law by a larger bench.
- The Constitution benches are set up on ad hoc basis as and when the above-mentioned conditions exist.
- Constitution benches have decided many of India’s best-known and most important Supreme Court cases, such as:
- K. Gopalan v. State of Madras (Preventive detention)
- Kesavananda Bharati v. State of Kerala (Basic structure doctrine) and
- Ashoka Kumar Thakur v. Union of India (OBC reservations) etc.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Judicial Pendency
What is a Caveat in Judiciary?
From UPSC perspective, the following things are important :
Prelims level: Caveat
Mains level: Not Much
Recently, the Supreme Court bench reprimanded a law student for filing a caveat in a petition seeking menstrual leave for female students and working women across Indian institutions.
What is a Caveat?
- In common parlance, a caveat refers to “warning” or “caution”.
- However, legally it connotes a “formal notice requesting the court to refrain from taking some specified action without giving prior notice to the person lodging the caveat.”
- The person lodging the caveat is called a “caveator”.
- The provision was inserted by the Amendment Act of 1976 after the Law Commission’s recommendation by Section 148A of the Civil Procedure Code (CPC).
- However, the term is not expressly defined anywhere except in the Calcutta High Court’s 1978 ruling.
Who can fill the Caveat?
- Any person has a right to lodge a caveat in a Court.
- Any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.
- The caveator or the person lodging is also required to serve a notice of the caveat by “registered post” to the person on whose plea they are lodging the application
Attempt UPSC 2024 Smash Scholarship Test | FLAT* 100% OFF on UPSC Foundation & Mentorship programs
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Judicial Pendency
Government Litigation
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Problem of pendency of cases and the role of the Government
Context
- Much has been said about why we have a staggeringly high number of cases that constitute pendency or cases that are undecided in the court system. Pendency or cases pending in courts have been a source of agony for litigants, lawyers and judges alike. In 2018, the Law Commission of India, in its 230th report, noted that the government is the biggest litigant in the system.
Crack Prelims 2023! Talk to our Rankers
Ratio: Number of Judges serving the population
- India has 21 judges for every million people: India has a terribly low number of judges serving a very large population to be more precise, India has about 21 judges for every million people, as the government recently informed the Rajya Sabha.
- Comparatively in China: China has about 159 judges for every million people.
What is cause of concern for the government?
- Pendency impacts governance and weakens law and order: It is a cause of concern for the government since an arduous dispute resolution system adversely impacts governance and weakens law and order in any country.
- Government is the largest litigant: Our government has been seized by the burdens of the justice system for long, and is acutely aware of its own role in contributing to the number of cases that enter the courts and remain to be decided.
Efforts taken by the Government to reduce its litigation
- Government is well aware: The government has been cognisant of its role in contributing to litigation simply by being the biggest litigator in the courts.
- Action plan in response to large number of Government litigation: On June 13, 2017, the department of justice of the Government of India, released an Action Plan to reduce Government Litigation. The action plan was in response to the fact that 46 per cent of the total pending cases in the court system pertains to the government.
- Legal Information Management Briefing System (LIMBS): In 2015, they started the rather aptly named LIMBS project that intends to connect 55 ministries and their departments for litigation management. Aptly named, for it seeks to connect the various limbs of governance of our state. As on January 3, LIMBS shows that there are 6,20,000 cases involving the government pending before the court system.
- National Litigation Policy (NLP), 2010: The status report to the NLP, 2010, was prepared because it is based on the recognition that the government and its various agencies are the predominant litigants in the courts and tribunals in the country. And, hence, it aimed to transform the government into an efficient and responsible litigant.
Is all its litigation is initiated by the government?
- To be fair to the government, not all its litigation is initiated by it.
- For instance, the government is the catalyst in inter-departmental litigation (between wings of the government) and routine appeals in service matters.
- However, citizens trigger writ jurisdiction of the courts and file appeals in criminal cases. These also constitute a segment of cases involving the government being heard at various high courts and the Supreme Court.
- So, while the government can control some of the litigation it is involved in, it is not the catalyst in certain classes of cases that involve it.
Way ahead
- Insights provided by the Vidhi Centre: The Vidhi Centre for Legal Policy in its report on Government Litigation published in 2018, provides great insights into where the government can and cannot control the litigation it is party to.
- Where Government control its litigation: For instance, the government’s 2010 National Litigation Policy (NLP) recognises that service matters should not be normally appealed and only cases which involve questions of constitutional interpretation should be pursued all the way till the Supreme Court. The government should implement this reform suggested by its own policymakers.
- Reasons to reduce the litigation: There are many good reasons to reduce litigation that involves the government. Reducing the burden on the courts is a prime reason. As Vidhi 2018 notes, the costs involved in pursuing litigation eat into public funds. And a court battle between the individual and the state is also a battle of unequals.
Conclusion
- What we need to address the overburdened court system is for the largest litigant to use the court system more efficiently and cautiously. This would be a tremendous start to addressing the problem of pendency. Appointing more judges would be a massive step to helping more dispute resolution as well.
Mains question
Q. Pendency of cases haunts Indian judiciary for a very long time. While there are multiple reasons for pendency, it is said that Government is the largest Litigant discuss. Enlist what efforts are taken by the government to reduce its litigation?
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Judicial Pendency
What is Vacation Bench of Supreme Court?
From UPSC perspective, the following things are important :
Prelims level: Vacation Benches
Mains level: Resolving judicial pendency
Chief Justice of India D. Y. Chandrachud said no Vacation Benches will be available in the apex court during the winter break.
Vacation Bench
- A Vacation Bench of the Supreme Court is a special bench constituted by the Chief Justice of India.
- The court takes two long vacations each year, the summer and winter breaks, but is technically not fully closed during these periods.
- Litigants can still approach the Supreme Court and, if the court decides that the plea is an “urgent matter”, the Vacation Bench hears the case on its merits.
- While there is no specific definition as to what an “urgent matter” is.
- During vacations the court generally admits writs related to habeas corpus, certiorari, prohibition and quo warranto matters for enforcement of any fundamental right.
Do you know?
The Supreme Court has 193 working days a year for its judicial functioning, while the High Courts function for approximately 210 days, and trial courts for 245 days. High Courts have the power to structure their calendars according to the service rules.
Legal Provisions for Vacation Bench
- Under Rule 6 of Order II of The Supreme Court rules, 2013 the CJI has nominates the Division Benches for the hearing of urgent miscellaneous matters and regular hearing matters during the summer vacation for period.
- The rule reads that CJI may appoint one or more Judges to hear during summer vacation or winter holidays all matters of an urgent nature which under these rules may be heard by a Judge sitting singly.
- And, whenever necessary, he may likewise appoint a Division Court for the hearing of urgent cases during the vacation which require to be heard by a Bench of Judges.
Which else can appoint vacation bench?
- The High Courts and trial courts too have Vacation Benches to hear urgent matters under their jurisdiction.
Has vacation benches made any historic judgments?
- Vacation Benches of the Supreme Court have also authored historical decisions.
- One of the best known is when a Vacation Bench Judge in June 1975, refused PM Indira Gandhi’s plea to stay an Allahabad High Court decision setting aside her election – a decision which triggered the Emergency.
- A Constitution Bench of the court had heard the triple talaq case during vacation days.
Issues with court vacations
- Huge pendency: Extended frequent vacations is not good optics, especially in the light of mounting pendency of cases and the snail’s pace of judicial proceedings.
- Creating further delays: For an ordinary litigant, the vacation means further unavoidable delays in listing cases.
Arguments in favour
- Rejuvenation of judges: Lawyers have often argued that in a profession that demands intellectual rigour and long working hours — both from lawyers and judges — vacations are much needed for rejuvenation.
- Long working hours: Judges typically work for over 10 hours on a daily basis. Apart from the day’s work in court from 10.30 am to 4 pm, they also spend a few hours preparing for the next day.
- Preparing for judgments: A frequently-made argument is that judges utilise the vacation to write judgments.
- Courts not in session: Another argument is that judges do not take leave of absence like other working professionals when the court is in session.
- Socialization: Family tragedies, health are rare exceptions, but judges rarely take the day off for social engagements.
- No impact on pendency: Data show that the Supreme Court roughly disposes of the same number of cases as are instituted before it in a calendar year.
Reforming the vacation clause
- In 2000, the Justice Malimath Committee, set up to recommend reforms in the criminal justice system, suggested that the period of vacation should be reduced by 21 days.
- It suggested that the Supreme Court work for 206 days, and High Courts for 231 days every year.
- In its 230th report, the Law Commission of India headed by Justice A R Lakshmanan in 2009 called for reform in this system.
- Considering the staggering arrears, vacations in the higher judiciary must be curtailed by at least 10 to 15 days and the court working hours should be extended by at least half an hour, it said.
- In 2014, when the Supreme Court notified its new Rules, it said that the period of summer vacation shall not exceed seven weeks from the earlier 10-week period.
Click and get your FREE Copy of CURRENT AFFAIRS Micro Notes
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Judicial Pendency
Doubling court strength won’t end pendency: Supreme Court
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Resolving judicial pendency
Judiciary is overburdened because of the system, says Chief Justice of India Chandrachud; he points out that it is already difficult to find good lawyers to fill judicial vacancies in High Courts.
What is the news?
- The Supreme Court has said that increasing the number of judges will not demolish the perennial problem of pendency.
- It noted that it is already difficult finding good lawyers to accept the call to the Bench in High Courts.
Indian Judiciary: A Backgrounder
- Our Judicial system has been the nation’s moral conscience keeper.
- It speaks truth to political power, upholds the rights of citizens, mediates between Centre-state conflicts, provides justice to the rich and poor alike, and on several momentous occasions, saved democracy itself.
- Despite its achievements, a gap between the ideal and reality has been becoming clear over the years.
- The justice delivery is slow, the appointment of judges is mired in controversy, disciplinary mechanisms scarcely work, hierarchy rather than merit is preferred, women are severely under-represented, and constitutional matters often languish in the Supreme Court for years.
Why there is huge pendency?
There are various reasons for delay of disposal of cases. Some of the important reasons as well as some suggestion and recommendations are as follows:
- Low judge strength and appointment: In High courts of India, there are 1079 approved strength of judges out of which 680 is the working strength. There are 399 vacancies as per the approved strength.
- Process of law: There are lot of hearings in a case, number of adjournments in a case, victims become frustrated of fighting for justice. The accused are misusing the process of law for their benefit.
- Absenteeism of Judges: Judges need vacations to spent time with their family and society. The judiciary is providing them vacations to spent time in the society but some judges need more holidays to enjoy their life.
- Number of appeals available in a case: Appeal provisions are made to satisfy the party or to check justice but litigants made it a means to earn more money from the parties. They make an appeal in every case decided by the lower court.
- Lack of infrastructure: Courts lack of basic facilities like proper washroom facilities, canteen facilities, parking, and library for advocates, sitting facilities for advocates and drinking water facilities.
- Misuse of process of law: There are so many cases which are running for more than 30 years and accused are contesting election and doing the corruption. The delay is often rewarding for the accused.
- Legal education system: Legal education is not capable to produce efficient law professionals. Advocates are not capable do trial efficiently and fast, they need time to prepare for the case that results in slow trial of the case.
Other challenges to the judicial system
- Lack of infrastructure of courts
- High vacancy of judges in the district judiciary
- Pendency of Cases
- Ineffective planning in the functioning of the courts
- Delay in the delivery of judgements
- Lack of transparency in appointments and transfers.
- Corruption
- Undertrials serving Jail
- Outdated laws ex. Section 124A IPC
What led to the underperformance of the Indian Judiciary?
The primary factors contributing to docket explosion and arrears as highlighted by the Justice Malimath Committee report are as follows:
- Population explosion
- Litigation explosion
- Hasty and imperfect drafting of legislation
- Plurality and accumulation of appeals (Multiple appeals for the same issue)
- Inadequacy of judge strength
- Failure to provide adequate forums of appeal against quasi-judicial orders
- Lack of priority for disposal of old cases (due to the improper constitution of benches)
Recent developments:
Proposal for the creation of National Judicial Infrastructure Corporation (NJIC)
- The CJI has pitched to set up a National Judicial Infrastructure Corporation (NJIC) to develop judicial infrastructure in trial courts.
- He indicated a substantial gap in infrastructure and availability of basic amenities in the lower judiciary.
- There is a dearth of court halls, residential accommodation, and waiting rooms for litigants in trial courts, especially in smaller towns and rural areas.
- Experience shows that budgetary allocation for state judiciary often lapses since there is no independent body to supervise and execute such works.
- NJIC is expected to fill this vacuum and overcome problems related to infrastructure.
Way forward
- Creating NJIC: It will bring a revolutionary change in the judicial functioning provided the proposed body is given financial and executive powers to operate independently of the Union and the State governments.
- Appointment reforms: There are many experts who advocate the need to appoint more judges with unquestionable transparency in such appointments.
- Creating All Indian Judiciary Services: It would be a landmark move to create a pan-India Service that would result in a wide pool of qualified and committed judges entering the system.
- Technology infusion: The ethical and responsible use of AI and ML for the advancement of efficiency-enhancing can be increasingly embedded in legal and judicial processes. Ex. SUPACE.
- Legal education: This should be in alignment with the evolving dynamics of the law and must be propagated in trial and constitutional courts. This will improve the competence of the judicial system.
- Alternate Dispute Resolution (ADR): ADR mechanisms should be promoted for out-of-court settlements. Primary courts of appeal should be set up.
Click and get your FREE Copy of CURRENT AFFAIRS Micro Notes
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Judicial Pendency
SC orders release of all convicts in Ex-PM Assassin Case
From UPSC perspective, the following things are important :
Prelims level: Pardoning Powers of president and governor
Mains level: Read the attached story
The Supreme Court has ordered for the immediate release of six convicts who are serving life sentence for more than three decades in the Rajiv Gandhi assassination case.
What is the news?
- The Bench referred to the case of their former co-convict G. Perarivalan, who was granted premature release by the apex court this year in exercise of its extraordinary powers under Article 142 of the Constitution.
What does Pardon mean?
- A pardon is a government/executive decision to allow a person to be absolved of guilt for an alleged crime or other legal offense as if the act never occurred.
Why need a Pardon?
- Pardons can be granted when individuals are deemed to have demonstrated that they have “paid their debt to society”, or are otherwise considered to be deserving of them.
- Pardons are sometimes offered to persons who were either wrongfully convicted or who claim that they were wrongfully convicted.
- Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone that is seen as wrongly convicted.
What does Article 161 say?
- Article 161 of the Constitution provides the Governor with the power to remit or commute the sentence of any prisoner.
- The Governor’s decision will be subject to judicial review by the constitutional courts.
- The advice of the State Cabinet is binding on the Governor in matters relating to commutation/remission of sentences under Article 161.
Why did the Supreme Court intervene here?
- In its judgment in the Perarivalan case in May, the apex court had held that the State Cabinet’s advice was binding on the Governor under Article 161 (Governor’s power of clemency) of the Constitution.
- The Governor had no business forwarding the pardon pleas to the President after sitting on it for years together.
Back2Basics: Article 142
- Article 142 provides discretionary power to the Supreme Court.
- It states that the court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
- Such decree shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament.
- It is usually used in cases involving human rights and environmental protection.
Click and get your FREE Copy of CURRENT AFFAIRS Micro Notes
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Judicial Pendency
What is a Full Court Meeting?
From UPSC perspective, the following things are important :
Prelims level: Full Court Meeting
Mains level: Not Much
Within hours of taking over, the new Chief Justice of India Uday Umesh Lalit called a meeting of the ‘full court’ where the judges discussed how to deal with issues relating to listing and backlog of cases.
What is a Full Court Meeting?
- A full court meeting literally means one which is attended by all the judges of the court.
When is it held?
- There are no written rules dealing with this.
- As per convention, full-court meetings are called by the Chief Justice of India to discuss issues of importance to the judiciary.
- The senior designations of practising advocates in the Supreme Court and high courts are also decided during the full court meetings.
What is the significance of a full court meeting?
- The basic idea is to take everyone along.
- Full court meetings are an ideal occasion to arrive at common solutions to deal with problems that beset the country’s legal system and to make any amends, if necessary, in the administrative practices of the court.
How frequently is it held?
- As a full court meeting is convened at the discretion of the Chief Justice of India, it does not follow any particular calendar.
- Full court meetings have been held many times in the past.
- In March 2020, it was convened to discuss demands by associations of lawyers to close the court till further notice following the Covid-10 outbreak.
- Also, a full court meeting held on May 7, 1997 decided that “every Judge should make a declaration of all his/her assets in the form of real estate or investment” held in own name or in the name of spouse or any person dependent.
Do you know?
Justice Uday Umesh Lalit, sworn in as the 49th Chief Justice of India on Saturday, will be the sixth head of the Indian judiciary to have a tenure of less than 100 days.
Lalit will demit office on November 8 with a tenure of 74 days.
Justice Kamal Narain Singh, who was the CJI between November 25, 1991 and December 12, 1991, had a tenure of 18 days.
Justice S Rajendra Babu had a tenure of 30 days as the chief justice of India between May 2, 2004 and May 31, 2004.
Justice J C Shah had a tenure of 36 days when he was the CJI between December 17, 1970 and January 21, 1971.
Justice G B Patnaik had a 41-day tenure as the head of the Indian judiciary when he held the office of the CJI from November 8, 2002 to December 18, 2002.
Justice L M Sharma had a tenure of 86 days as the CJI when he was in office between November 18, 1992 and February 11, 1993.
Tap to read more about appointment of CJIs.
UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Judicial Pendency
Need of robust Justice delivery
Context
- Over 6,000 Signatories Demand To Reverse Bilkis Bano Convicts’ Release.
Why in news?
- Eleven convicts, sentenced to life imprisonment, released from Godhra sub-jail on August 15 after the Gujarat government allowed their release under its remission policy. They had completed more than 15 years in jail.
What is the issue?
- Bilkis Bano was 21-years-old and five months pregnant when she was gang-raped while fleeing the violence that broke out after the Godhra train burning. Among those killed were her 3-year-old daughter.
What is remission?
- The duration of the sentence announced by the court can be cut short under special circumstances while the nature of the sentence remains the same, depending upon the nature of the crime.
Indian Judiciary: A Backgrounder
- Saviour of democracy: It speaks truth to political power, upholds the rights of citizens, mediates between Centre-state conflicts, provides justice to the rich and poor alike, and on several momentous occasions, saved democracy itself.
- Visible gaps: Despite its achievements, a gap between the ideal and reality has been becoming clear over the years.
- Slow in speed: The justice delivery is slow, the appointment of judges is mired in controversy, disciplinary mechanisms scarcely work, hierarchy rather than merit is preferred, women are severely under-represented, and constitutional matters often languish in the Supreme Court for years.
What led to under-performance of Indian Judiciary?
- Population explosion
- Litigation explosion
- Hasty and imperfect drafting of legislation
- Plurality and accumulation of appeals (Multiple appeals for the same issue)
Challenges to the judicial system
- Lack of infrastructure of courts
- High vacancy of judges in the district judiciary
- Pendency of Cases
- Ineffective planning in the functioning of the courts
Judicial initiative
- The CJI has pitched to set up a National Judicial Infrastructure Corporation (NJIC) to develop judicial infrastructure in trial courts.
- He indicated a substantial gap in infrastructure and availability of basic amenities in the lower judiciary.
Enrich your mains answer with this
Finland’s criminal justice system was voted the world’s best.
- Under the Constitution of Finland, everyone is entitled to have their case heard by a court or an authority appropriately and without undue delay. This is achieved through the judicial system of Finland.
Dynamic suggestions
- Creating NJIC: It will bring a revolutionary change in the judicial functioning provided the proposed body is given financial and executive powers to operate independently of the Union and the State governments.
- Appointment reforms: There are many experts who advocate the need to appoint more judges with unquestionable transparency in such appointments.
- Creating All Indian Judiciary Services: It would be a landmark move to create a pan-India Service that would result in a wide pool of qualified and committed judges entering the system.
- Technology infusion: The ethical and responsible use of AI and ML for the advancement of efficiency-enhancing can be increasingly embedded in legal and judicial processes. Ex. SUPACE.
Way forward
- It is time for courts to wake up from their colonial stupor and face the practical realities of Indian society.
- Rules and procedures of justice delivery should be made simple.
- The ordinary, poor, and rural Indian should not be scared of judges or the courts.
Conclusion
- India’s capacity to deliver justice has serious deficits with under-capacity and gender imbalance plaguing police, prisons and the judiciary and fund crunch affecting state services like free-legal aid. So there is urgent need of National Judicial Infrastructure Authorityfor the standardization and improvement of judicial infrastructure and robust justice delivery.
Mains question
Q. Do you think there are serious gaps in our judicial infrastructure and justice delivery? Identify these gaps and provide some dynamic suggestions from your end in the context of Bilkis Bano verdict.
UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Judicial Pendency
Over 59 lakh cases pending in High Courts: Law Minister
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Resolving judicial pendency
Over 59 lakh cases were pending in the High Courts until July 22, Law Minister said in a written reply in Rajya Sabha.
What else?
- There are serving women judges in various courts, including 4 in the Supreme Court and 96 in the High Courts, as of July 25.
Indian Judiciary: A Backgrounder
- Our Judicial system has been the nation’s moral conscience keeper.
- It speaks truth to political power, upholds the rights of citizens, mediates between Centre-state conflicts, provides justice to the rich and poor alike, and on several momentous occasions, saved democracy itself.
- Despite its achievements, a gap between the ideal and reality has been becoming clear over the years.
- The justice delivery is slow, the appointment of judges is mired in controversy, disciplinary mechanisms scarcely work, hierarchy rather than merit is preferred, women are severely under-represented, and constitutional matters often languish in the Supreme Court for years.
- As Justice Chelameswar said in his dissent in the NJAC judgment, the courts must reform, so that they can preserve.
Challenges to the judicial system
- Lack of infrastructure of courts
- High vacancy of judges in the district judiciary
- Pendency of Cases
- Ineffective planning in the functioning of the courts
- Delay in the delivery of judgements
- Lack of transparency in appointments and transfers.
- Corruption
- Undertrials serving Jail
- Outdated laws ex. Section 124A IPC
What led to the underperformance of the Indian Judiciary?
The primary factors contributing to docket explosion and arrears as highlighted by the Justice Malimath Committee report are as follows:
- Population explosion
- Litigation explosion
- Hasty and imperfect drafting of legislation
- Plurality and accumulation of appeals (Multiple appeals for the same issue)
- Inadequacy of judge strength
- Failure to provide adequate forums of appeal against quasi-judicial orders
- Lack of priority for disposal of old cases (due to the improper constitution of benches)
Recent developments:
Proposal for the creation of National Judicial Infrastructure Corporation (NJIC)
- The CJI has pitched to set up a National Judicial Infrastructure Corporation (NJIC) to develop judicial infrastructure in trial courts.
- He indicated a substantial gap in infrastructure and availability of basic amenities in the lower judiciary.
- There is a dearth of court halls, residential accommodation, and waiting rooms for litigants in trial courts, especially in smaller towns and rural areas.
- Experience shows that budgetary allocation for state judiciary often lapses since there is no independent body to supervise and execute such works.
- NJIC is expected to fill this vacuum and overcome problems related to infrastructure.
Way forward
- Creating NJIC: It will bring a revolutionary change in the judicial functioning provided the proposed body is given financial and executive powers to operate independently of the Union and the State governments.
- Appointment reforms: There are many experts who advocate the need to appoint more judges with unquestionable transparency in such appointments.
- Creating All Indian Judiciary Services: It would be a landmark move to create a pan-India Service that would result in a wide pool of qualified and committed judges entering the system.
- Technology infusion: The ethical and responsible use of AI and ML for the advancement of efficiency-enhancing can be increasingly embedded in legal and judicial processes. Ex. SUPACE.
- Legal education: This should be in alignment with the evolving dynamics of the law and must be propagated in trial and constitutional courts. This will improve the competence of the judicial system.
- Alternate Dispute Resolution (ADR): ADR mechanisms should be promoted for out-of-court settlements. Primary courts of appeal should be set up.
UPSC 2022 countdown has begun! Get your personal guidance plan now! (Click here)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Judicial Pendency
Retirement spree in SC may affect efforts to scale down pendency
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Resolving judicial pendency
The retirements in the topmost rung of the judiciary in 2022 will encompass changes in the powerful Supreme Court Collegium and see two new Chief Justices in a span of months.
Why in news?
- The retirements come at a time when the court is in the process of steadying itself after particularly brutal waves of the pandemic.
Pendency in Supreme Court
- The Supreme Court’s statistics show that 70,362 cases are pending with it as on April 1, 2022.
- Over 19% of them are not ready to be placed before a Bench for judicial hearing as they have not completed the required preliminaries.
- While 52,110 are admission matters, 18,522 are regular hearing cases.
- The number of Constitution Bench cases (both main and connected matters) totals 422.
General scenario: Pendency of Cases
- India’s legal system has the largest backlog of pending cases in the world – as many as 30 million pending cases.
- This number is continuously increasing and this itself shows the inadequacy of the legal system.
- And also due to this backlog, most of the prisoners in India’s prisons are detainees awaiting trial.
Factors leading to under-performance of Indian Judiciary
- The issue of heavy arrears pending in the various courts of the country has been a matter of concern since the time of independence.
- The primary factors contributing to docket explosion and arrears as highlighted by Justice Malimath Committee report are as follows:
- Population explosion
- Litigation explosion
- Hasty and imperfect drafting of legislation
- Plurality and accumulation of appeals (Multiple appeals for the same issue)
- Inadequacy of judge strength
- Failure to provide adequate forums of appeal against quasi-judicial orders
- Lack of priority for disposal of old cases (due to the improper constitution of benches)
- Issue of appointment in Quasi-Judicial Bodies
Way ahead
- For pendency, time limits should be prescribed for all cases based on priorities.
- So setting time standards is essential and it will vary for different cases, and also for different courts depending on their disposal capacity.
- Alternative disputes resolution (ADR) mechanisms should be promoted for out-of-court settlements.
UPSC 2022 countdown has begun! Get your personal guidance plan now! (Click here)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Judicial Pendency
Judiciary needs more HC judges: CJI
From UPSC perspective, the following things are important :
Prelims level: Collegium system, NJAC
Mains level: Judicial vacancy in India
Chief Justice of India N.V. Ramana said there was a need to both increase the number of judges in High Courts and urgently fill existing vacancies.
Judicial vacancy in India
- The Indian judiciary faces high vacancies across all levels (the Supreme Court, High Courts, and subordinate courts).
- Vacancy of judges in courts is one of the reasons for delays and a rising number of pending cases, as there are not enough judges to hear and decide cases.
- As of today, more than four crore cases are pending across all courts in India.
Appointing judges to the HC
- The appointment of the judges to the high courts is governed by Article 217 of the Constitution.
- In addition to the constitutional provisions, the process of appointments outlined in the Memorandum of Procedure (MoP) is a lengthy one.
- It is initiated by the Chief Justice of the concerned high court who recommends the nominees to the state government.
- Ideally, this process should begin six months prior to the occurrence of the vacancy.
- The state government then sends the recommendation to the Union Law Ministry, which then sends it to the Supreme Court Collegium.
HC Vacancies
- The total sanctioned judicial strength in the 25 High Courts is 1,080.
- However, the present working strength is 661 with 419 vacancies as on March 1.
- The Supreme Court has been repeatedly conveying to the government its growing alarm at the judicial vacancies in High Courts.
- Some of these High Courts are functioning only with half their sanctioned judicial strength.
- On average, the courts suffered at least 40% judicial vacancies.
Why is there a huge gap?
Ans. Timeline of appointment is arbitrary
- Appointments of High Court judges are guided by a memorandum of procedure.
- As per this memorandum, the appointment process is to be initiated by the concerned High Court at least six months before a vacancy occurs.
- However, the Standing Committee (2021) noted that this timeline is rarely adhered to by High Courts.
- Further, in the final stage of the process, after receiving recommendations from the Supreme Court collegium, the executive appoints judges to the High Court.
- No timeline is prescribed for this stage of the appointment process.
How many judges do we need?
- The Law Commission of India (1987) had noted the importance of manpower planning for the judiciary.
- Lack of adequate number of judges means a greater workload per judge.
- Thus, it becomes essential to arrive at an optimal judge strength to deal with pending and new cases in courts.
- Over the years, different methods of calculating the required judge strength for subordinate courts (where the backlog of cases in the Indian judiciary is concentrated) have been recommended:
| Method of calculation | Recommendation and its status |
| Judge-to-population ratio: Optimum number of judges per million population | The Law Commission of India (1987) had recommended increasing this ratio to 50 judges per million people. For 2020, the judge-to-population ratio was 21 judges per million population. |
| Rate of disposal: Number of additional judges required (to clear the existing backlog of cases and ensure that new backlog is not created) based on the average number of cases disposed per judge | The Law Commission of India (2014) proposed this method. It rejected the judge-to-population ratio method, observing that filing of cases per capita varies substantially across geographic units depending on socio-economic conditions. |
| Weighted case load method: Calculating judge strength based on the disposal by judges, taking into account the nature and complexity of cases in local conditions | It addresses the existing backlog of cases as well as the new flow of cases every year in subordinate courts. In 2017, the Supreme Court accepted this model. |
| Time-based weighted case load method: Calculating the required judge strength taking into account the actual time spent by judges in different types of cases at varying stages based on an empirical study | Used widely in the United States, this was the long-term method recommended by the NCMS (2016) to assess the required judge strength for subordinate courts. It involves determining the total number of ‘judicial hours’ required for disposing of the case load of each court. The Delhi High Court used this approach in a pilot project (2017- 2018) to calculate the ideal judge strength for disposing of pending cases in certain courts in Delhi. |
Back2Basics:
UPSC 2022 countdown has begun! Get your personal guidance plan now! (Click here)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Judicial Pendency
The Supreme Court fails to decide key constitutional cases in time-bound manner
From UPSC perspective, the following things are important :
Prelims level: CAA
Mains level: Paper 2- Pendency of important cases
Context
Unless the Court strives in every possible way to assure that the Constitution, the law, applies fairly to all citizens, the Court cannot be said to have fulfilled its custodial responsibility.
Landmark judgments
- In the last few years, the Indian Supreme Court has delivered some judgments of far-reaching consequence.
- It declared the right to privacy a fundamental right; decriminalized consensual sexual conduct between adults of the same sex; recognized transgender persons as the third gender; and outlawed triple talaq.
- These decisions shore up the belief in republican values like liberty and equality reified in our Constitution.
Important cases pending in the Supreme Court
- Constitutionality of CAA: Many petitions were filed before the Supreme Court challenging the constitutionality of the Citizenship (Amendment) Act, 2019, that provides non-Muslim communities from Bangladesh, Pakistan, and Afghanistan a fast-track route to Indian citizenship.
- More than two years later, the matter continues to languish in the apex court.
- Dilution of Article 370: Innumerable petitions have been filed challenging the Presidential Order of August 5, 2019, that effectually diluted Article 370 of the Constitution.
- To date, the court has done precious little to decide this vexed question of law.
- Constitutionality of 103rd amendment: Petitions challenging the constitutionality of the Constitution(One Hundred and Third Amendment)Act,2019 that provides reservations in public educational institutions and government jobs for economically weaker sections are also languishing in the Supreme Court.
- Challenges to the electoral bond scheme: The Supreme Court has failed to accord proper hearing in the last four years to the constitutional challenge to the electoral bonds scheme.
Conclusion
Unless the Court strives in every possible way to assure that the Constitution, the law, applies fairly to all citizens, the Court cannot be said to have fulfilled its custodial responsibility”.
UPSC 2022 countdown has begun! Get your personal guidance plan now! (Click here)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Judicial Pendency
Unresolved constitutional cases
From UPSC perspective, the following things are important :
Prelims level: Not much
Mains level: Paper 2- Unresolved constitutional cases and their implications
Context
As 2021 draws to a close, a look at the Supreme Court of India’s docket reveals a host of highly significant constitutional cases that were long-pending when the year began, and are now simply a year older without any sign of resolution around the corner.
How delay in judicial process matters differently for the State and individual?
- While the violation of rights — whether through executive or legislative action — is relatively costless for the state, it is the individual, or individuals, who pay the price.
- Making the Constitution effective: Consequently, a Constitution is entirely ineffective if a rights-violating status quo is allowed to exist and perpetuate for months, or even years, before it is finally resolved.
- This point, of course, is not limited to the violation of rights, but extends to all significant constitutional questions that arise in the course of controversial state action.
- Missing the accountability: Issues around the federal structure, elections, and many others, all involve questions of power and accountability, and the longer that courts take to resolve such cases, the more we move from a realm of accountability to a realm of impunity.
- The longer such cases are left hanging without a decision, the greater the damage that is inflicted upon our constitutional democracy’s commitment to the rule of law.
Significant cases that are unresolved
[a] Challenge to the dilution of Article 370
- There is the constitutional challenge to the Presidential Orders of August 5, 2019, that effectively diluted Article 370 of the Indian Constitution, and bifurcated the State of Jammu and Kashmir into two Union Territories, controlled by the Centre.
- It raises the question of whether the Centre can take advantage of an Article 356 situation in a State — a time when no elected government and Assembly is in existence — to make permanent and irreversible alterations in the very structure of the State itself.
- Implications for federal structure: The answer will have important ramifications not just for Jammu and Kashmir but for the entire federal structure:
- India has a long history of the abuse of Article 356 to “get rid of” inconvenient State governments, and a further expansion of the power already enjoyed by the Centre will skew an already tilted federal scheme even further.
- Power of the Parliament to alter convert State into UT: The case also raises the question of whether, under the Constitution, the Union Legislature has the authority not simply to alter State boundaries (a power granted to it by Article 3 of the Constitution), but degrade a State into a Union Territory.
- If it turned out that the Union Legislature does have this power, it would essentially mean that India’s federal structure is entirely at the mercy of Parliament.
[2] Constitutional challenge to the electoral bond scheme
- Opaque and structurally biased: The electoral bonds scheme authorises limitless, anonymous corporate donations to political parties, making election funding both entirely opaque to the people, as well as being structurally biased towards the party that is in power at the Centre.
- Impact on integrity and right of the citizens to informed vote: In numerous central and State election cycles in the last four years, thousands of crores of rupees have been spent in anonymous political donations, thus impacting not only the integrity of the election process but also the constitutional right of citizens to an informed vote.
- However, other than two interim orders, the Supreme Court has refused to accord a full hearing to the constitutional challenge.
[3] Other significant cases
- Statutory basis of the CBI: As far back as 2013, the Gauhati High Court held that the Central Bureau of Investigation (CBI) was not established under any statutory authority.
- This verdict was immediately stayed when it was appealed to the Supreme Court, but in the intervening years, it has never been heard.
- Challenge to the CAA: More recently, constitutional challenges to the Citizenship (Amendment) Act (CAA), filed in the immediate aftermath of the legislation’s enactment, remain unheard.
- Challenge to the UAPA: The challenges to the much-criticised Section 43(D)(5) of the Unlawful Activities (Prevention) Act, which makes the grant of bail effectively impossible, and is responsible for the years-long incarceration of several people.
- The challenge to Section 43(D)(5) is perhaps the case that most directly affects civil rights, as the section continues to be applied on a regular basis.
Implications of the delay
- Favouring one party: The Supreme Court’s inaction is not neutral, but rather, favours the beneficiaries of the status quo.
- In other words, by not deciding, the Court is in effect deciding — in favour of one party — but without a reasoned judgment that justifies its stance.
- Impact on accountability: Judicial evasion of this kind is also damaging for the accountability of the judiciary itself.
- The Court’s inaction plays as significant a role on the ground as does its action, there is no judgment — and no reasoning — that the public can engage with.
- Impact on the rule of law: For obvious reasons, this too has a serious impact on the rule of law.
Consider the question “What are the implications of the delay in deciding the constitutionally significant cases? Suggest the way forward.”
Conclusion
The current CJI has been on record stressing the importance of the rule of law and the independence of the judiciary. One way of demonstrating that in action might be to hear — and decide — the important constitutional cases pending before the Court.
UPSC 2022 countdown has begun! Get your personal guidance plan now! (Click here)
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Judicial Pendency
[pib] Fast Track Special Courts
From UPSC perspective, the following things are important :
Prelims level: Fast Track Special Courts
Mains level: Resolving judicial pendency
The Union Cabinet has approved the continuation of 1023 Fast Track Special Court (FTSCs) including 389 exclusive POCSO Courts for two more years.
Fast Track Special Courts
- Fast Track Special Courts are dedicated courts expected to ensure swift dispensation of justice.
- They have a better clearance rate as compared to the regular courts and hold speedy trials.
- Besides providing quick justice to the hapless victims, it strengthens the deterrence framework for sexual offenders.
- Central Share is to be funded from Nirbhaya Fund. The Scheme was launched on 02.10.2019.
- To bring more stringent provisions and expeditious trial and disposal of such cases, the Central Government enacted “The Criminal Law (Amendment) Act, 2018”.
- It made provision of stringent punishment including the death penalty for perpetrators of rape.
- This led to the establishment of the Fast Track Special Courts (FTSCs).
Note: Article 247 gives power to Parliament to establish certain additional courts for the better administration of laws made by it or of any existing laws with respect to a matter enumerated in the Union List.
Benefits offered by fast track courts
- Further the commitment of the Nation to champion the cause of safety and security of women and girl child.
- Reduce the number of pending cases of Rape & POCSO Act.
- Provide speedy access to justice to the victims of sexual crimes and act as a deterrent for sexual offenders.
- Fastracking of these cases will declog the judicial system of the burden of case pendency.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Judicial Pendency
[pib] Scheme for Development of Infrastructure Facilities for Judiciary
From UPSC perspective, the following things are important :
Prelims level: Gram Nyayalayas Scheme
Mains level: Not Much
The Union Cabinet has approved the continuation of the Centrally Sponsored Scheme (CSS) for the Development of Infrastructure Facilities for Judiciary. It also approved the decision to support the Gram Nyayalayas by proving recurring and non-recurring grants for a period of 5 years with a total outlay of Rs 50 crores.
About the Scheme
- A Centrally Sponsored Scheme (CSS) for Development of Infrastructure Facilities for Judiciary has been in operation since 1993-94.
- Adequacy of judicial infrastructure is critical for the reduction of pendency and backlog of cases in Courts.
- The primary responsibility of infrastructure development for the subordinate judiciary rests with the State Governments.
- The present proposal provides for additional activities like the construction of lawyer halls, toilets complexes and digital computer rooms.
- This will add to the convenience of lawyers and litigants besides reducing the digital divide.
Why such a move?
- Adequacy of judicial infrastructure is critical for the reduction of pendency and backlog of cases in Courts.
- Several courts are still functioning in rented premises with insufficient space and some in dilapidated conditions without basic amenities.
- Well-equipped judicial infrastructure facilitates the administration of justice in a manner that allows easy access and timely delivery of justice to all.
What is Gram Nyayalayas Scheme?
- Gram Nyayalayas were established for speedy and easy access to the justice system in the rural areas across the country.
- The Gram Nyayalayas Act came into force on October 2, 2009.
- In terms of Section 3(1) of the Act, it is for the State Governments to establish Gram Nyayalayas in consultation with the respective High Courts.
- The Act authorizes Gram Nyayalaya to hold a mobile court outside its headquarters.
- Some major reasons behind the non-enforcement include financial constraints, the reluctance of lawyers, police and other government officials.
Features of the Gram Nyayalayas
- Gram Nyayalaya is established generally at headquarter of every Panchayat at the intermediate level or a group of contiguous panchayat in a district where there is no panchayat at an intermediate level.
- The Gram Nyayalayas are presided over by a Nyayadhikari, who will have the same power, enjoy the same salary and benefits of a Judicial Magistrate of First Class.
- Such Nyayadhikari is to be appointed by the State Government in consultation with the respective High Court.
Jurisdiction
- A Gram Nyayalaya have jurisdiction over an area specified by a notification by the State Government in consultation with the respective High Court.
- The Court can function as a mobile court at any place within the jurisdiction of such Gram Nyayalaya, after giving wide publicity to that regard.
- The Gram Nyayalayas have both civil and criminal jurisdiction over the offences and nature of suits specified in the First, Second and Third schedule of the Act.
- The pecuniary jurisdiction of the Nyayalayas are fixed by the respective High Courts.
- Appeals in criminal matter can be made to the Sessions Court in the respective jurisdiction and in civil matters to the District Court within a period of one month from the date of judgment.
Trials
- Gram Nyayalayas can follow special procedures in civil matters, in a manner it deem just and reasonable in the interest of justice.
- Civil suits are proceeded on a day-to-day basis, with limited adjournments and are to be disposed of within a period of six months from the date of institution of the suit.
- In execution of a decree, the Court can allow special procedures following rules of natural justice.
- Gram Nyayalayas allow for conciliation of the dispute and settlement of the same in the first instance.
- They have been given the power to accept certain evidence which would otherwise not be acceptable under the Indian Evidence Act.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Judicial Pendency
What is Tele-Law Scheme?
From UPSC perspective, the following things are important :
Prelims level: Tele Law Scheme
Mains level: Pendency issue in Indian Judiciary
The Law Ministry recently commemorated an event to mark the coverage of more than nine lakh beneficiaries of the government’s tele-law scheme, using common service centres (CSCs) to provide justice across the country.
Tele-Law Scheme
- The concept of Tele-Law is to facilitate the delivery of legal advice through a panel of lawyers stationed at the State Legal Services Authorities (SALSA) and CSC.
- Tele-Law means the use of communications and information technology for the delivery of legal information and advice.
- The project initiates to connect citizens with lawyers through video conferencing facilities by the Para-Legal Volunteers stationed at identified 50,000 CSCs.
- This e-interaction between lawyers and people would be through the video-conferencing infrastructure available at the CSCs.
Features of the program
- Under this programme, smart technology of video conferencing, telephone/instant calling facilities available at the vast network of CSC.
- It enables anyone to seek legal advice without wasting precious time and money.
- The service is free for those who are eligible for free legal Aid as mentioned under Section 12 of the Legal Services Authority Act, 1987.
- For all others, a nominal fee is charged.
Back2Basics: Free legal aid in India
- Article 21 of the Constitution of India states, “No person shall be deprived of his life or personal liberty except according to procedure established by law”.
- Hence ensuring legal aid to everyone is necessary for ensuring substantive equality.
- Article 39A of the Constitution of India provides for free legal aid to the poor and weaker sections of the society, to promote justice on the basis of equal opportunity.
- Articles 14 and 22(1) also make it obligatory for the State to ensure equality before the law and a legal system that promotes justice on a basis of equal opportunity to all.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Judicial Pendency
Law and disorder
From UPSC perspective, the following things are important :
Prelims level: Not Much
Mains level: Judicial conduct and associated issues
Several inadequacies in the justice delivery system lie hidden as disproportionate attention is given to the Supreme Court.
Public expects the judiciary to be ideal
- The citizens of the country expect the Supreme Court and its constituents to be ideal, and the challenge of the Supreme Court is to come to terms with that reality.
- However, it is not the Supreme Court alone that matters in the justice delivery system. There are other inadequacies of the system that don’t get as much public attention.
Practice Question: Explain the various inadequacies in the justice delivery system in India which lie hidden. What steps need to be taken to address them?
Spending on judiciary
- The issue of spending on judiciary, most often, is equated with increasing the salaries of judges and providing better court infrastructure. Such perceptions are unfortunate.
- India has one of the most comprehensive legal aid programmes in the world, the Legal Services Authority Act of 1987.
- Under this law, all women, irrespective of their financial status, are entitled to free legal aid. Scheduled Castes and Scheduled Tribes and children too are entitled to free legal aid.
- In reality, this law is a dead letter. There has been little effort on the part of successive governments to provide a task force of carefully selected, well-trained and reasonably paid advocates to provide these services.
- In comparison, the system of legal aid in the U.K. identifies and funds several independent solicitor offices to provide such services. India is yet to put in place anything similar to this.
Poor judge-population ratio
- The judge-population ratio provides one of the most important yardsticks to measure the health of the legal system. The U.S. has about 100 judges per million population. Canada has about 75 and the U.K. has about 50.
- India, on the other hand, has only 19 judges per million population. Of these, at any given point, at least one-fourth is always vacant.
- Lower courts where the common man first comes into contact (or at least should) with the justice delivery system is also unnoticed and hardly any attention is focused on their gaping inadequacy.
- These inadequacies are far more important to the common man than the issues relating to the apex court that are frequently highlighted in the public space.
- In All India Judges Association v. Union of India (2001), the Supreme Court had directed the Government of India to increase the judge-population ratio to at least 50 per million population within five years from the date of the judgment. This has not been implemented.
Access to justice
- Though ‘access to justice’ has not been specifically spelt out as a fundamental right in the Constitution, it has always been treated as such by Indian courts.
- In Anita Kushwaha v. Pushpa Sadan (2016), the Supreme Court held unambiguously that if “life” implies not only live in the physical sense but a bundle of rights that make life worth living, there is no justice or other basis for holding that denial of “access to justice” will not affect the quality of human life.
- It was for the first time that the Supreme Court had attempted a near-exhaustive definition of what “access to justice” actually means.
- Further, the court pointed out four important components of access to justice.
- The need for adjudicatory mechanisms.
- The mechanism must be conveniently accessible in terms of distance.
- The process of adjudication must be speedy.
- The process of adjudication must be affordable to the disputants.
- It is of course a paradox that this judgment, which emphasizes the concept of speedy justice, was passed in 2016 in a batch of transfer petitions that were filed between 2008 and 2014.
Way forward
- The state in all its glorious manifestations — the executive, judiciary and the legislature — there is a need to draw out a national policy and road map for clearing backlogs and making these concepts real.
- A disproportionate amount of attention that is given to the functioning of the Supreme Court, it is equally important to have a clear focus on these and similar issues.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Judicial Pendency
What are Lok Adalats?
From UPSC perspective, the following things are important :
Prelims level: Lok Adalat
Mains level: Alternative dispute resolution mechanisms in India
A daily wager in Odisha has moved the Lok Adalat against PM after he allegedly failed to get an Aadhaar card registered in his name despite 21 attempts.
Try this PYQ:
Q. With reference to National Legal Services Authority, consider the following statements:
- Its objective is to provide free and competent legal services to the weaker sections of the society on the basis of equal opportunity.
- It issues guidelines for the State Legal Services Authorities to implement the legal programmes and schemes throughout the country.
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
What are Lok Adalats?
- Lok Adalat (People’s Court) is an alternative dispute resolution mechanism.
- The forum can settle cases pending on panchayat or at a pre-litigation stage in a court of law.
- The decisions have statutory status under the Legal Services Authorities Act, 1987.
- Under this Act, the award (decision) made by the Lok Adalats is deemed to be a case of a civil court, final and binding for all parties, and not subject to appeal.
- It has broad powers to devise its procedures, compared to national courts.
- If the parties do not recognise the Lok Adalat (though there is no provision for an appeal against such a prize), they may initiate litigation by approaching the court of appropriate jurisdiction.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Judicial Pendency
What is Plea Bargaining and how does it work?
From UPSC perspective, the following things are important :
Prelims level: Plea Bargaining
Mains level: Various judicial remedies
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.
Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024
Overcoming the backlog of cases: Judicial reform
A British citizen, Will Pike was paralysed during the 2008 Taj Hotel blasts in 2008. Suing the hotel group for compensation, he wanted the trial to take place in London rather than in India. Accepting his contention, the London court allowed the matter, specifically stating that the trial in India could take some ‘twenty years’. This is a befitting example of the pendency in Indian judicial system and how it needs to be urgently addressed.
THE MAGNITUDE OF THE PROBLEM
The graphic below states the number of cases pending before the Courts in India. Currently, about 3.25 crore cases are pending in the Indian courts and Judges fear that this number might escalate to about 4 crore cases by the end of 2016. This problem gets escalated due to the crunch of Judges at all levels of Judiciary as seen in the graphic below.
Timely justice is an integral part of access of justice and this huge backlog of cases amounts to denial and derailment of justice. This article will look into the proposed reforms for addressing this systemic problem.
10 REFORMS FOR ADDRESSING JUDICIAL PENDENCY
The 245th Law Commission Report on “Arrears and Backlogs: Creating Additional Judicial (W)omanpower has recommended the following measures
1. Calculating Adequate Judge Strength through a more scientific analysis of data – In this context, the Commission has negated a simplistic method like Judge-Population ratio (Number of judges required per million people) in favour of a Rate of Disposal Method.
In the Rate of Disposal Method, one looks at the current rate at which judges dispose of cases. Then, given that the institutions and disposal rate remain the same, the Courts would need how many more additional judges to keep pace with the new filings in Court so that the newly instituted cases do not add to the existing backlog.
2. Judges to be appointed on a Priority basis: India currently has 1/5th of the number of judges it needs and thus, the Judges need to be appointed on a priority basis.
3. Increasing the age of retirement for Subordinate Court Judges to 62 years.
4. Creation of Special Courts for traffic/police challan cases: They constitute about 37.4% of the existing pendency before the subordinate courts.
5. Provision for staff and infrastructure
6. Periodic Needs Assessment by High Courts: Monitoring the rate of institution and disposal of cases and revising the adequate strength of Judges since a High Court is equipped with all the information relating to the subordinate courts in the State. The Malimath Committee had recommended setting up of Vigilance Cells in each district by the High Court to monitor the performance of subordinate judicial officers.
7. Uniform data collection and data management methods : to bring in greater transparency.
8. Need for a system-wide reform: The Commission has recommended the following:
● Greater encouragement to Alternative Dispute Resolution (ADR) and Lok Adalats <Can you tell us the difference among various types of ADRs, mediation, arbitration and conciliation? Answer in comments>
● Setting up non-mandatory time frames and performance benchmarks for resolution of different types of cases based on rational criteria.
OTHER RECOMMENDATIONS
9. Use of Technology : Has been recommended by the 230th Law Commission Report and the Malimath Committee Report to
(a) Club cases filed on similar points of law, which can be decided on the basis of a single judgment.
(b) Track old cases, which have become infructuous and dispose them off quickly
(c) Setting up E-Courts and ushering in E-filing. Has received a major boost under the e-Courts Integrated Mission Mode Project.
10. Creation of All-India Judicial Service: Provided for under Article 312 of the Indian Constitution. The idea has been mooted by various bodies including the First Judicial Pay Commission and accepted by the Supreme Court. Art 2012 proposal regarding creation of this service has not received responses from all States and this proposal continues to be hanging in the air <can you tell us the procedure of creation of new all India service? Answer in comments>.
CONCLUSION:
Many steps are currently being taken by the Government and the Courts to address this problem.
- Monthly National Lok Adalats are carried out for expeditious disposal of claims.
- In March 2016, the Monthly Lok Adalat disposed of about 1.5 lakh cases and settled claims worth Rs. 100 crores <Where can one appeal against the decision of Lok Adalats. Also tell us about the jurisdiction of Lok Adalats. Answer in comments>
- In criminal cases, the setting-up of fast-track Courts and “plea bargaining” have further expedited matters <Can you tell us what’s plea bargaining? Answer in comments>
- The e-courts project, aimed at providing better Court management and a database of all pending cases with easier filing of important documents is underway.
- Moreover, the National Litigation Policy 2015 is awaiting ministerial approval and seeks to reverse the trend of Government being the biggest litigant <did you know one of the argument for rejecting NJAC was that govt was the biggest litigant, therefore can have no role in appointment of judges>.
However, in view of the burgeoning backlog and urgency of reducing backlog, the efforts need to be severely expedited.
P.S. This article is published with inputs from a CD user Joyousjojo (name changed on request).
P.P.S. If you want to write explainers for CD, mail us your explainer at hello@civilsadily.com
I caught him after 18 cheating 2 weeks ago. Someone says not to make rash decisions, but I don’t know if I can ever forgive or heal from pain. Those who have been in this position, have you tried? How did you heal? Have you tried giving up? I only want a divorce https://divorceonlineutah.com right now.