Judicial Reforms

Judicial Reforms

Article 32 and the Supreme Court

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Writ jurisdiction, Art. 32, 225

Mains level : Writ Jurisdiction

A Supreme Court bench headed by CJI has observed that it is “trying to discourage” individuals from filing petitions under Article 32 of the Constitution.

Try this PYQ:

Q.Which of the following is included in the original jurisdiction of the Supreme Court?

  1. Dispute between the Government of India and one or more States
  2. A dispute regarding elections to either House of the parliament or that of Legislature of a State
  3. A dispute between the Government of India and Union Territory
  4. A dispute between two or more States.

Select the correct answer using the codes given below:

(a) 1 and 2

(b) 2 and 3

(c) 1 and 4

(d) 3 and 4

What is Article 32?

  • Article 32 deals with the ‘Right to Constitutional Remedies’, or affirms the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred in Part III of the Constitution.
  • It is one of the fundamental rights listed in the Constitution that each citizen is entitled.
  • It states that the Supreme Court “shall have the power to issue directions or orders or writs for the enforcement of any of the rights conferred by this Part”.
  • The right guaranteed by this Article “shall not be suspended except as otherwise provided for by this Constitution”.
  • Dr B R Ambedkar has called it the very soul and heart of the Constitution. It cannot be suspended except during the period of Emergency.

Rights protected by A32

  • The article is included in Part III of the Constitution with other fundamental rights including to Equality, Freedom of Speech and Expression, Life and Personal Liberty, and Freedom of Religion.
  • Only if any of these fundamental rights is violated can a person can approach the Supreme Court directly under Article 32.

Types of Writs under it

Both the High Courts and the Supreme Court can be approached for violation or enactment of fundamental rights through five kinds of writs:

  1. Habeas corpus (related to personal liberty in cases of illegal detentions and wrongful arrests)
  2. Mandamus — directing public officials, governments, courts to perform a statutory duty;
  3. Quo Warranto — to show by what warrant is a person holding public office;
  4. Prohibition — directing judicial or quasi-judicial authorities to stop proceedings which it has no jurisdiction for; and
  5. Certiorari — re-examination of an order given by judicial, quasi-judicial or administrative authorities.
  • In civil or criminal matters, the first remedy available to an aggrieved person is that of trial courts, followed by an appeal in the High Court and then the Supreme Court.
  • When it comes to violation of fundamental rights, an individual can approach the High Court under Article 226 or the Supreme Court directly under Article 32.

Supreme Court’s recent observations

  • The observation came during the hearing of a petition seeking the release of a journalist, who was arrested while reporting on an alleged gangrape and murder.
  • The court asked why the petitioners could not go to the High Court first.
  • In another case invoking Article 32, a Nagpur-based man was arrested for alleged defamatory content against Maharashtra CM, the same Bench directed him to approach the High Court first.

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Judicial Reforms

What is Recusal of Judges?

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Recusal of Judges

Mains level : Judicial conduct and associated issues

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

Can you list down some basic principles of judicial conduct?

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

What is the Recusal of Judges?

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

Rules on Recusals

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

Issues with recusal

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

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Pardoning Powers of Governor

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 161

Mains level : Pardoning power of president vs. governor

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

What did the court say exactly?

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

Try this PYQ now:

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

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

Select the correct answer using the code given below:

(a) 1 and 2 only

(b) 1 and 3 only

(c) 2, 3 and 4 only

(d) 1, 2, 3 and 4

Pardoning Powers of Governor

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

Back2Basics:

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

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Nyay Kaushal E-resource Centre

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nyay Kaushal Centre

Mains level : Transparent and accessible judicial proceedings

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

Must read edition:

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

Nyay Kaushal Centre

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

It’s working

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

Why need such a mechanism?

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

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Live-streaming of Courts

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Transparent and accessible judicial proceedings

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

Why such demands?

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

Live-streaming of Court

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

Why there should be live-streaming?

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

Issues with live-courts

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

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

(1) The question of access:

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

(2) The degree of comfort:

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

(3) The idea of open courts itself:

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

(4) The question of Privacy and Data Security:

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

Still, digital records are necessary

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

Best examples

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

Significance of open-courts

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

Various moves for accessibility

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

Way forward

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

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What is Queen’s Counsel?

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Queens Council

Mains level : NA

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

Queen’s Counsel

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

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Judiciary and challenges ahead

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Paper 2-Judiciary and relations with executive

The relations between the judiciary and executive have always been tumultuous. This article analyses the changes in the judiciary’s relations with the executive after 2014.

Relations with executive

  • In 2014 government blocked the elevation of Gopal Subramanium as a judge of the apex court.
  • A month later, the government introduced a bill to create the National Judicial Appointments Commission (NJAC).
  • The NJAC Act was passed by Parliament in December 2014.
  • In October 2015, the SC struck down the NJAC Act, ruling that it would affect the independence of the judiciary vis-à-vis the executive.
  • Following striking down of the NJAC Act, the SC directed the government to propose a new memorandum of procedure (MoP) for appointments to the higher judiciary.
  • The draft government sent to the Court allowed the government to reject any name recommended by the Collegium on grounds of national security and made it compulsory for the Collegium to justify its selection.
  • The Collegium rejected these clauses and the MoP could never be finalised.
  • The government sat on the appointments that the Collegium had recommended months ago.
  •  In April 2016, 170 proposals for appointments to the high courts were pending at that time.

SC’s perceived reluctance  to question executive after 2017

  • Appointments and transfers ceased to be a problem because the Collegium accepted the appointments and transfers.
  • The Court considered that the Aadhaar Bill could be passed as a Money Bill, validated the Electoral Bonds Act.
  • The SC also abstained from dealing with sensitive issues like the abolition of Article 370 or the Citizenship Amendment Act.
  • This modus operandi of the court, when applied to Aadhaar, created a fait accompli.

3 questions over the SC’s role

  • 1) The court’s reluctance to question the government on contentious issues — from J&K to misuse of sedition law or the NRC — is disturbing.
  • 2) The manner in which the judiciary has addressed allegations against itself — Kalikho Pul or Prasad Education Trust or on sexual harassment — gives a handle to those in power.
  • 3) The independence of the judiciary is inevitably affected by the acceptance of post-retirement jobs.

Consider the question “While playing its role, judiciary faces several challenges from the other organs of the democracy. In light of this, examine the challenges judiciary in India faces from the executive.”

Conclusion

Supreme Court’s apparent reluctance to question government on consequential issues affects its moral authority.

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Kesavananda Bharati: The petitioner who saved democracy

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Features of Basic structure doctrine

Mains level : Evolution of the basic structure doctrine

Kesavananda Bharati (80), the sole unwitting petitioner in the historic Fundamental Rights case which prevented the nation from slipping into a totalitarian regime has passed away.

Who was Kesavananda Bharati?

  • Kesavananda Bharati was the head seer of the Edneer Mutt in Kasaragod district of Kerala since 1961.
  • He left his signature in one of the significant rulings of the Supreme Court when he challenged the Kerala land reforms legislation in 1970.

What was his case?

  • A 13-judge bench was set up by the Supreme Court, the biggest so far, and the case was heard over 68 working days spread over six months.
  • The Bench gave 11 separate judgments that agreed and disagreed on many issues but a majority judgment of seven judges were stitched together by then CJI SM Sikri on the eve of his retirement.
  • However, the basic structure doctrine, which was evolved in the majority judgment, was found in the conclusions of the opinion written by one judge — Justice H R Khanna.

What was the case about?

  • The case was primarily about the extent of Parliament’s power to amend the Constitution.
  • First, the court was reviewing a 1967 decision in Golaknath v State of Punjab which, reversing earlier verdicts, had ruled that Parliament cannot amend fundamental rights.
  • Second, the court was deciding the constitutional validity of several other amendments.
  • Notably, the right to property had been removed as a fundamental right, and Parliament had also given itself the power to amend any part of the Constitution and passed a law that it cannot be reviewed by the courts.
  • The executive vs judiciary manoeuvres displayed in the amendments ended with the Kesavananda Bharati case, in which the court had to settle these issues conclusively.
  • Politically, the case represented the fight for supremacy of Parliament led by then Prime Minister Indira Gandhi.

What did the court decide?

  • In its majority ruling, the court held that fundamental rights cannot be taken away by amending them.
  • While the court said that Parliament had vast powers to amend the Constitution, it drew the line by observing that certain parts are so inherent and intrinsic to the Constitution that even Parliament cannot touch it.
  • However, despite the ruling that Parliament cannot breach fundamental rights, the court upheld the amendment that removed the fundamental right to property.
  • The court ruled that in spirit, the amendment would not violate the “basic structure” of the Constitution.
  • Kesavananda Bharati, in fact, lost the case. But as many legal scholars point out, the government did not win the case either.

What is the basic structure doctrine?

  • The origins of the basic structure doctrine are found in the German Constitution which, after the Nazi regime, was amended to protect some basic laws.
  • The original Weimar Constitution, which gave Parliament to amend the Constitution with a two-thirds majority, was in fact used by Hitler to his advantage to made radical changes.
  • Learning from that experience, the new German Constitution introduced substantive limits on Parliament’s powers to amend certain parts of the Constitution which it considered ‘basic law’.
  • In India, the basic structure doctrine has formed the bedrock of judicial review of all laws passed by Parliament. No law can impinge on the basic structure.
  • What the basic structure is, however, has been a continuing deliberation. While parliamentary democracy, fundamental rights, judicial review, secularism are all held by courts as the basic structure, the list is not exhaustive.

What was the fallout of the verdict?

  • Politically, as a result of the verdict, the judiciary faced its biggest litmus test against the executive.
  • Then government did not take kindly to the majority opinion and superseded three judges —J M Shelat, A N Grover and K S Hegde — who were in line to be appointed CJI after Justice Sikri.
  • The supersession resulted in a decades-long continuing battle on the independence of the judiciary and the extent of Parliament’s power to appoint judges.
  • But the ruling has cemented the rejection of majoritarian impulses to make sweeping changes or even replace the Constitution and underlined the foundations of modern democracy.

Significance of the Judgement

  • The judgment introduced the Basic Structure doctrine which limited Parliament’s power to make drastic amendments that may affect the core values enshrined in the Constitution like secularism and federalism.
  • The verdict upheld the power of the Supreme Court to judicially review laws of Parliament.
  • It evolved the concept of separation of powers among the three branches of governance — legislative, executive and the judiciary.
  • The Emergency was proclaimed shortly after the judgment was delivered on April 24, 1973.
  • It proved timely and thwarted many an attempt on democracy and dignity of an individual during those dark years.

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Office of the Attorney General and its role in contempt cases

Note4Students

From UPSC perspective, the following things are important :

Prelims level : AGI: Role, powers and function

Mains level : Not Much

Attorney General of India has refused consent to a plea to initiate criminal contempt action against an actor for “scandalizing” the Supreme Court.

Note important power, functions and limitations of AGI. A bluff can be created with the dicey statements in the prelims.

What is the case for prior approval in Contempt Cases?

  • The prior consent in writing of the Attorney General is required for the Supreme Court to initiate criminal contempt action in a case a/c to the Contempt of Court Act, 1971.
  • AGI consent in a form of check on the much-debated suo-motu power of criminal contempt.

Attorney General of India (AGI)

  • The AGI is the Indian government’s chief legal advisor and is a primary lawyer in the Supreme Court of India.
  • They can be said to be the advocate from the government’s side.
  • They are appointed by the President of India on the advice of Union Cabinet under Article 76(1) of the Constitution and holds office during the pleasure of the President.
  • They must be a person qualified to be appointed as a Judge of the Supreme Court ( i.e. a judge of some high court for five years or an advocate of some high court for ten years or an eminent jurist, in the opinion of the President and must be a citizen of India.).

Functions and duties

  • The AGI is necessary for advising the Government of India on legal matters referred to them.
  • They also perform other legal duties assigned to them by the President.
  • The AGI has the right of audience in all Courts in India as well as the right to participate in the proceedings of the Parliament, though not to vote.
  • The AGI appears on behalf of Government of India in all cases (including suits, appeals and other proceedings) in the Supreme Court in which GoI is concerned.
  • They also represent the Government of India in any reference made by the President to the Supreme Court under Article 143 of the Constitution.
  • The AG is assisted by a Solicitor General and four Additional Solicitors General.

Powers

  • The AG can accept briefs but cannot appear against the Government.
  • They cannot defend an accused in the criminal proceedings and accept the directorship of a company without the permission of the Government.
  • The AG is to be consulted only in legal matters of real importance and only after the Ministry of Law has been consulted.
  • All references to the AG are made by the Law Ministry.

Limitations

The AG:

  • should not advise or hold a brief against the Government of India
  • should not defend accused persons in criminal cases without the permission of the government of India
  • should not accept appointment as a director in any company without the permission of the government

Global precedence

  • Unlike the Attorney General of the United States, the AGI does not have any executive authority.
  • Those functions are performed by the Law Minister of India.
  • Also, the AG is not a government servant and is not debarred from private legal practice.

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Mulgaonkar principles in Contempt Cases

In the criticism against the Supreme Court’s ruling that held advocate Prashant Bhushan guilty of contempt of court, his counsel has invoked the ‘Mulgaonkar Principles’, urging the court to show restraint.

Try this MCQ:

Q. The Mulgaonkar principles recently seen in news are related to:

Diplomacy/ Economy/ Judiciary/ Environment

The Mulgaonkar principles

  • S Mulgaonkar v Unknown (1978) is a case that led to a landmark ruling on the subject of contempt.
  • By a 2:1 majority, the court held Mulgaonkar not guilty of contempt although the same Bench had initiated the proceedings.
  • Justices P Kailasam and Krishna Iyer formed the majority going against then CJI M H Beg.
  • Justice Iyer’s counsel of caution in exercising the contempt jurisdiction came to be called the Mulgaonkar principles.

What was the case about?

  • An article by A G Noorani in the newspaper about certain judicial decisions during the Emergency period, especially the Habeas Corpus case, had displeased then CJI Beg.
  • The Habeas Corpus case, often referred to as the “Supreme Court’s darkest hour” upheld the detention law, citing that even the right to life can be suspended during an emergency.
  • Justices A N Ray, Beg, Y V Chandrachud and P N Bhagwati formed the majority while Justice H R Khanna was the sole dissenter.

What did the ruling say?

  • The first rule in the branch of power is a “wise economy of use by the Court of this branch of its jurisdiction”.
  • The Court will act with seriousness and severity where justice is jeopardized by a gross and/or unfounded attack on the judges, where the attack is calculated to obstruct or destroy the judicial process.
  • The court is willing to ignore, by a majestic liberalism, trifling and venial offenses-the dogs may bark, the caravan will pass.
  • The court will not be prompted to act as a result of an easy irritability.

 

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Judiciary and the challenges ahead

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much.

Mains level : Paper 2- Role of judiciary in democracy and challenges it faces

The article analyses the role of the judiciary in democracy and the challenges it has been facing.

Challenges to democracy

  • Growing lack of faith among many Indians in the functioning of the Supreme Court (SC).
  • The politicisation of the civil service and the police.
  • The creation of a cult of personality
  • The intimidation of the media.
  • The use of tax and investigative agencies to harass and intimidate independent voices.
  • The refusal to do away with repressive colonial-era laws and instead the desire to strengthen them.
  • The undermining of Indian federalism by the steady whittling down of the powers of the states by the Centre.

Role and challenges judiciary faces

  • In recent years the Supreme Court has done little to stop or stem the degradation of democracy.
  • Some examples: Court’s refusal to strike down laws like UAPA that should have no place in a constitutional democracy.
  • Its unconscionable delay in hearing major cases.
  • The COVID-19 crisis has accelerated trend towards authoritarianism and the centralisation of power.
  • But the hearings and orders of the past few months show, the Supreme Court seems unable or unwilling to check these ominous trends.
  • The failure of the SC is in part a failure of leadership.
  • One chief justice has accepted a Governorship immediately on retirement, and another has accepted a Rajya Sabha seat.
  • Powers of the Master of the Roster are imperfectly defined, and can lead themselves to widespread misuse by the incumbent.

Consider the question “Examine the role of the judiciary as the guardian of the Constitution. What are the challenges judiciary facing the judiciary in recent times?”

Conclusion

Time has come for all the serving justices in the highest court of the land to think seriously about the ever-increasing gap between their calling as defined by the Constitution, and the direction the Court is now taking.

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Explained: What is Contempt of Court?

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Contempt of Court

Mains level : Contempt of Court and associated issues

Contempt of court, as a concept is back in the news after the proceeding by the Supreme Court of India, on its own motion, against a senior Delhi-based advocate-activist.

Try this question for mains:

Q.What is Contempt of Court? Discuss, how free speech can lead to the contempt of courts?

What is Contempt of Court?

  • It seeks to protect judicial institutions from motivated attacks and unwarranted criticism, and as a legal mechanism to punish those who lower its authority.

How did the concept of contempt come into being?

  • The concept of contempt of court is several centuries old.
  • In England, it is a common law principle that seeks to protect the judicial power of the king, initially exercised by him, and later by a panel of judges who acted in his name.
  • Violation of the judges’ orders was considered an affront to the king himself.
  • Over time, any kind of disobedience to judges, or obstruction of the implementation of their directives, or comments and actions that showed disrespect towards them came to be punishable.

What is the statutory basis for contempt of court?

  • There were pre-Independence laws of contempt in India. Besides the early High Courts, the courts of some princely states also had such laws.
  • When the Constitution was adopted, contempt of court was made one of the restrictions on freedom of speech and expression.
  • Separately, Article 129 of the Constitution conferred on the Supreme Court the power to punish contempt of itself.
  • Article 215 conferred a corresponding power on the High Courts.
  • The Contempt of Courts Act, 1971, gives statutory backing to the idea.

What are the kinds of contempt of court?

The law codifying contempt classifies it as civil and criminal.

  • Civil contempt is fairly simple. It is committed when someone willfully disobeys a court order or wilfully breaches an undertaking given to the court. However, Criminal contempt is more complex.
  • It consists of three forms: (a) words, written or spoken, signs and actions that “scandalise” or “tend to scandalise” or “lower” or “tends to lower” the authority of any court (b) prejudices or interferes with any judicial proceeding and (c) interferes with or obstructs the administration of justice.
  • The rationale for this provision is that courts must be protected from tendentious attacks that lower its authority, defame its public image and make the public lose faith in its impartiality.
  • The punishment for contempt of court is simple imprisonment for a term up to six months and/or a fine of up to ₹. 2,000.

What does not account to contempt?

  • Fair and accurate reporting of judicial proceedings will not amount to contempt of court.
  • Nor is any fair criticism on the merits of a judicial order after a case is heard and disposed of.

Is truth a defence against a contempt charge?

  • For many years, the truth was seldom considered a defence against a charge of contempt.
  • There was an impression that the judiciary tended to hide any misconduct among its individual members in the name of protecting the image of the institution.
  • The Act was amended in 2006 to introduce truth as a valid defence if it was in the public interest and was invoked in a bonafide

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Issues with contempt of court

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Contempt of court

Mains level : Paper 2- Contempt of court and issues

The article discusses the issues that law for contempt of the court give rise to. The practice has monarchical origins. Its continuance conflicts with the ideals of democracy. 

Objective

  • The objective for contempt is stated to be to safeguard the interests of the public if the authority of the Court is denigrated and public confidence in the administration of justice is weakened or eroded.
  •  Need to “respect the authority and dignity of the court” has monarchical origins.

Issues in India

  • With adjudicatory role having been handed over to judges, showing extreme deference to judges does not sit well with the idea of a democracy.
  • But the definition of criminal contempt in India is extremely wide, and can be easily invoked.
  •  Justice V.R. Krishna Iyer famously termed the law of contempt as having a vague and wandering jurisdiction, contempt law may unwittingly trample upon civil liberties.
  • Criminal contempt is completely asynchronous with our democratic system which recognises freedom of speech and expression as a fundamental right.
  • Excessively loose use of the test of ‘loss of public confidence’, combined with a liberal exercise of suo motu powers, can be dangerous.
  •  It can amount to the Court signalling that it will not suffer any kind of critical commentary about the institution at all.

Lessons from other democracies

  • Contempt has practically become obsolete in foreign democracies.
  • Canada ties its test for contempt to real, substantial and immediate dangers to the administration.
  • American courts also no longer use the law of contempt in response to comments on judges or legal matters.
  • In England, too, the legal position has evolved.

Approach of Indian judiciary

  • Truth and good faith were not recognised as valid defences until 2006, when the Contempt of Courts Act was amended.
  • Indian courts have not been inclined to display the same maturity and unruffled spirit as their peers in the other democracies.

Consider the question  “A law for criminal contempt is completely asynchronous with our democratic system which recognises freedom of speech and expression as a fundamental right. Examine the issue in India context and suggest the major to strike the balance.”

Conclusion

Besides needing to revisit the need for a law on criminal contempt, even the test for contempt needs to be evaluated. If such a test ought to exist at all, it should be whether the contemptuous remarks in question actually obstruct the Court from functioning. It should not be allowed to be used as a means to prevent any and all criticism of an institution.

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Making justice accessible through live streaming

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Right to access justice under Article 21

Mains level : Paper 2- Live-streaming of proceeding to make justice accessible

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

Judiciary adapting to changes

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

Access to justice without physical classroom

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

Evolution of access to court

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

A case that led to live broadcast of the proceedings

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

Recording the proceedings- Examples

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

India stands alone

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

Steps to make justice accessible

  • The Court started providing vernacular translations of its judgments.
  • Non-accredited journalists were permitted to live-tweet court proceedings.
  • During the lockdown, journalists have been permitted to view virtual court proceedings in real time.
  • If that technology is available, it could be extended to members of the public, who can then view court proceedings themselves.
  • Due to pandemic for the next few years, Indian courts will have to adopt a combination of virtual and in-person hearings.

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

Conclusion

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

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Rule of Law Index and India

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Rule of Law Index

Mains level : Rule of Law in India

The Supreme Court has asked the government to treat a writ petition for setting up expert panels to boost India’s prospects in the Rule of Law Index.

Note the various factors/sub-indices on which the index is measured. There can be a direct question on these in line with:

Q. Which one of the following is not a sub-index of the World Bank’s ‘Ease of Doing Business Index’? CSP 2019

(a) Maintenance of law and order

(b) Paying taxes

(c) Registering property

(d) Dealing with construction permits

Why in news again?

  • The cause of action for the petition accrued when the World Justice Project ranked India in the 69th position in its Rule of Law Index.
  • India has never been ranked even among top 50 in the Index, but successive governments did nothing to improve the international ranking of India, said the petition.
  • Poor rule of law has a devastating effect on the right to life, liberty, economic justice, fraternity, individual dignity and national integration.

What is the Rule of Law Index?

  • The Rule of Law Index is a quantitative assessment tool by the World Justice Project (WJP) designed to offer a detailed and comprehensive picture of the extent to which countries adhere to the rule of law in practice.
  • It measures countries’ rule of law performance across eight factors:

(1) Constraints on Government Powers, (2) Absence of Corruption, (3) Open Government, (4) Fundamental Rights, (5) Order and Security, (6) Regulatory Enforcement, (7) Civil Justice, and (8) Criminal Justice

WJP definition of Rule of Law

The World Justice Project defines the rule of law system as one in which the following four universal principles are upheld:

  • The government and its officials and agents are accountable under the law.
  • The laws are clear, publicized, stable and fair, and protect fundamental rights, including the security of persons and property.
  • The process by which the laws are enacted, administered, and enforced is accessible, efficient, and fair.
  • Justice is delivered by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources and reflect the makeup of the communities they serve.

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

Note4Students

From UPSC perspective, the following things are important :

Prelims level : NALSA

Mains level : Need for prison reforms in India

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

Practice question for mains:

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

Decongesting the prison

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

Hardships of the undertrials

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

About NALSA

  • National Legal Services Authority of India (NALSA) was formed on 9 November 1995 under the authority of the Legal Services Authorities Act 1987.
  • Its purpose is to provide free legal services to eligible candidates and to organize Lok Adalats for the speedy resolution of cases.
  • The CJI is patron-in-chief of NALSA while second seniormost judge of Supreme Court of India is the Executive-Chairman.
  • There is a provision for similar mechanism at state and district level also headed by Chief Justice of High Courts and Chief Judges of District courts respectively.
  • The prime objective of NALSA is speedy disposal of cases and reducing the burden of the judiciary.

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[Burning Issue] Need of Prison Reforms

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Judiciary’s tryst with technology

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much.

Mains level : Paper 2- Adoption of technology by judiciary in its functioning.

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

Three types of courts in our justice delivery system

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

Pilot project with Tihar Jail

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

District courts and High Courts’ adoption of online route

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

What are the problems?

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

eCourts Project: A virtual court

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

Potential of the virtual courts

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

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

Conclusion

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

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Kesavananda Bharati Case (1973): The judgment that upheld basic structure of India’s constitution

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Features of Basic structure doctrine

Mains level : Basic structure doctrine

Exactly 47 years ago, the Supreme Court passed its landmark judgment in Kesavananda Bharati vs State of Kerala, considered among the most significant constitutional cases in India’s judicial history.

Major judgments of the Supreme Court are mentioned in the newscard. Aspirants are advised to memorize them all with thier key features. UPSC may ask a prelim question mentioning all these judgements and asking which of them are related/not related to the Amendments in the Constitution.  Right from the Shankari Prasad Judgment (1951) to the Ayodhya Judgement (2019), note down all important judgements.

Background

Amending  the Constitution

  • The Constitution of a country is the fundamental law of the land. It is based on this document that all other laws are made and enforced.
  • Under some Constitutions, certain parts are immune from amendments and are given a special status compared to other provisions.
  • Since the Indian Constitution was first adopted, debates have raged as to the extent of power that Parliament should have to amend key provisions.

Early years of Absolute Power

  • In the early years of Independence, the Supreme Court conceded absolute power to Parliament in amending the Constitution, as was seen in the verdicts in Shankari Prasad (1951) and Sajjan Singh (1965).
  • The reason for this is believed to be that in those initial years, the apex court had reposed faith in the wisdom of the then political leadership when leading freedom fighters were serving as Parliamentarians.
  • In subsequent years, as the Constitution kept being amended at will to suit the interests of the ruling dispensation, the Supreme Court in Golaknath (1967) held that Parliament’s amending power could not touch Fundamental Rights, and this power would be only with a Constituent Assembly.

Parliament could make any amendment

  • Article 13(2) reads, “The State shall not make any law which takes away or abridges the right conferred by this Part (Part-III) and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
  • In both the cases, the court had ruled that the term “law” in Article 13 must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power under Article 368.
  • This means Parliament had the power to amend any part of the constitution including Fundamental rights.

The tussle between Parliament and the judiciary

  • In the early 1970s, the government of then PM Indira Gandhi had enacted major amendments to the Constitution (the 24th, 25th, 26th and 29th) to get over the judgments of the Supreme Court in RC Cooper (1970), Madhavrao Scindia (1970) and the earlier mentioned Golaknath.
  • In RC Cooper, the court had struck down Indira Gandhi’s bank nationalization policy, and in Madhavrao Scindia it had annulled the abolition of privy purses of former rulers.

Background for the Kesavananda Bharati Case

  • All the four amendments, as well as the Golaknath judgment, came under challenge in the Kesavananda Bharati case.
  • Here, relief was sought by the religious figure Swami Kesavananda Bharati against the Kerala government vis-à-vis two state land reform laws.
  • Since Golaknath was decided by eleven judges, a larger bench was required to test its correctness, and thus 13 judges formed the Kesavananda bench.
  • Critics of the doctrine have called it undemocratic since unelected judges can strike down a constitutional amendment. At the same time, its proponents have hailed the concept as a safety valve against majoritarianism and authoritarianism.
  • Noted legal luminaries Nani Palkhivala, Fali Nariman, and Soli Sorabjee presented the case against the government.
  • The majority opinion was delivered by CJI S M Sikri, and Justices K S Hegde, A K Mukherjea, J M Shelat, A N Grover, P Jaganmohan Reddy, and H R Khanna. Justices A N Ray, D G Palekar, K K Mathew, M H Beg, S N Dwivedi, and Y V Chandrachud dissented.

A closer win

  • By a 7-6 verdict, a 13-judge Constitution Bench ruled that the ‘basic structure’ of the Constitution is inviolable, and could not be amended by Parliament.
  • The basic structure doctrine has since been regarded as a tenet of Indian constitutional law.

The judgment in Kesavananda Bharati

  • The Constitutional Bench, whose members shared serious ideological differences, ruled by a 7-6 verdict that Parliament should be restrained from altering the ‘basic structure’ of the Constitution.
  • The court held that under Article 368, which provides Parliament amending powers, something must remain of the original Constitution that the new amendment would change.
  • The court did not define the ‘basic structure’, and only listed a few principles — federalism, secularism, democracy — as being its part.
  • Since then, the court has been adding new features to this concept.

‘Basic structure’ since Kesavananda

  • The basic structure doctrine was first introduced by Justice Mudholkar in the Sajjan Singh case (1965).
  • Major features were notably propounded by Justice Hans Raj Khanna in 1973.
  • The ‘basic structure’ doctrine has since been interpreted to include the supremacy of the Constitution, the rule of law, Independence of the judiciary, doctrine of separation of powers, federalism, secularism, sovereign democratic republic, the parliamentary system of government, the principle of free and fair elections, welfare state, etc.
  • An example of its application is SR Bommai (1994), when the Supreme Court upheld the dismissal of the governments by the President following the demolition of the Babri Masjid, invoking a threat to secularism by these governments.

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Issue of post-retirement appointments of the judges.

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Various article to ensure the independence of judiciary.

Mains level : Paper 2- Do you agree with the view that post-retirement appointment of the judges undermine the confidence in judiciary? Give suggestions to deal with the problem.

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

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

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

Issue of judges accepting post-retirement jobs

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

Did Constitution makers intend to nominate Judges?

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

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

Way forward

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

Conclusion

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

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What is Open Court System?

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Open Courts, Art. 142

Mains level : Transparency in judicial functioning

The Supreme Court has invoked its extraordinary Constitutional powers under Article 142 to step away from the convention of open court hearings. It deemed all restrictions imposed on people from entering, attending or taking part in court hearings as lawful in the wake of the COVID-19 pandemic.

What are Open Courts?

  • The Open court principle requires that court proceedings presumptively be open and accessible to the public and to the media.
  • Open courts are normal court where proceedings of the court are conducted where every person is allowed to watch the proceedings of the court.
  • There are instances where it is not practical to accommodate persons other than parties to the proceedings. Therefore, such proceedings are held in camera.
  • This means that the proceedings are held in a closed room where the public will not have access to watch the proceedings.
  • In criminal cases like rape, it is necessary to protect the identity and modesty of the victim.

Why did the Supreme Court deter Open Court’s norm?

  • A Bench led by CJI said these restrictions were in tune with the social distancing norms and best public health practices advocated to contain the contagion.
  • The court made it clear that public health takes precedence over conventions.
  • Every individual and institution is expected to cooperate in the implementation of measures designed to reduce the transmission of the virus.
  • Open court hearings would mean a congregation of large number of people. This would prove detrimental to the fight against the virus.

Conclusion

  • Access to justice is fundamental to preserve the rule of law in the democracy envisaged by the Constitution of India.
  • The challenges occasioned by the outbreak of COVID-19 have to be addressed while preserving the constitutional commitment to ensuring the delivery of and access to justice to those who seek it..

Way forward

  • Indian courts have been proactive in embracing advancement in technology in judicial proceedings.
  • Judiciary can bank on video-conferencing technologies in the wake of this unprecedented and extraordinary outbreak of a pandemic.

Back2Basics

Article 142 of the Indian Constitution

  • Article 142 allows the Supreme Court to pass any order necessary to do “complete justice” in any case.
  • It supplements the powers already conferred upon the Supreme Court under the Constitution to guarantee that justice is done and in doing so the Court is not restrained by lack of jurisdiction or authority of law.
  • The phrase ‘complete justice’ engrafted in Article 142(1) is the word of wide interpretation to meet situations created by legal errors or result of operation of statute law or law.
  • Thus Article 142 is conceived to give the apex court the powers to meet the situations which cannot be effectively tackled by existing provisions of law.

Also read: 

Supreme Court Removes Manipur MLA Under The 10th Schedule

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Ayyappa and the Court

Note4Students

From UPSC perspective, the following things are important :

Mains level : Paper 2- Need for reforms in the administrative functioning of the Supreme Court.

Context

In the several cases with potential significance, there was no effective hearing at the interim stages which created fait accompli. And which results in the status quo cementing itself.

The Sabarimala case and ‘balance of convenience’ principle

  • Review petition pending: Millions of disciples have protested the Court’s 2018 verdict where gender equality was held to trump the tenets of the faith and rejoiced at the November 2019 order of the Chief Justice’s bench granting their cause a fresh lease of life.
  • As things stand, their review petitions are kept pending until the questions of law are determined.
  • Please to enter the temple declined: In December 2019, fervent pleas on behalf of certain women devotees to enter the temple were declined, although the 2018 verdict continued to hold the field.
  • Why declining the plea for entry matters? This was justified by the Court on a “balance of convenience”, thereby laying down a new principle for not directing the implementation of its own judgement.

Pendency of Article 370 challenge case hearing

  • Nine judge bench: This year it was decided to put together the nine-judge bench to hear the cases on an urgent basis.
  • Kashmir case on the backburner: But with two judges from the ongoing Kashmir/Article 370 challenges also a part of the Sabarimala case, it would mean that the Kashmir issues would be put on the back burner in the middle of its hearing.
  • This is despite the advocates representing the right of women’s entry stating that they had no objection to the Kashmir cases being heard first.
  • Then, barely a day into the hearing, a strain of swine flu reached some of the members of the Bench, leading to a postponement of hearings till the middle of March.
  • Now, with a fierce pandemic enveloping the globe, the case is adjourned indefinitely.

Criticism of administrative functioning of the SC

  • Over the last few months, the Supreme Court has been besieged by criticism of its administrative functioning.
  • Delay in the hearing of important cases: Cases that have customarily been heard with alacrity, like those concerning personal liberty, law and order and criminal investigation, have been posted after long intervals with the Government being granted the luxury of time to respond.
  • No effective hearing in cases with immediacy: Where immediacy is pre-eminent so that fait accompli may not be created, as with the validity of the Kashmir notifications, the CAA and the electoral bonds, there have been no effective hearings at the interim stage.
  • Thus, the status quo slowly cements itself.

Reason for problems in administrative functions of the SC

  • Dual role played by the CJI: Since the early years of the judiciary, one person has been given the onerous dual charge of heading both the administrative and judicial functions of the court.
  • As a result, apart from sitting every day, reading briefs, hearing arguments and delivering detailed judgements, the Chief Justice has to also act as the final authority for all service-related matters of the Court’s 2,500 employees, issue office orders to streamline the registry.
  • The CJI also supervise measures for security and infrastructure, chair committees, correspond with and entertain judicial delegations, attend symposia, delegate subject matters among colleagues, constitute benches of varying strengths and interview candidates for the various courts.
  • In the old days, when the burden of cases was modest, these tasks would not have been challenging.
  • But in the present time, not only are they overwhelming, but they also bring in their wake a host of attacks on the person who occupies that high office.

Need for the Chief Executive Officer in the SC

  • Administrative functioning of the SC: In all the administrative tasks, the Chief Justice is assisted by a team of registrars, who are headed by the secretary-general.
  • As they are junior judicial officers, they neither have the training nor the complete independence to take steps towards course correction.
  • The requirement of CEO: This is why the Supreme Court sorely requires a chief executive officer – an independent professional who is equipped with the day-to-day management of the Court and is not beholden to the judges in any way.
  • How it will help? The CEO will be charged with the entire mission of running the Court so that the judges can concentrate on what they are trained and experienced to do – adjudicate.
  • Operational autonomy: The CEO will, of course, have to be given adequate operational autonomy and be answerable to a committee of the Court, comprising judges and bar representatives, thereby providing for a professional process, much like in the corporate sphere.
  • With this, the judges will at least be spared the charges that they have had to withstand over the last few years.

Conclusion

It is only for politicians to concern themselves with public opinion, not for judges. They are weaponised by the Constitution to serve the cause of justice, and in this, as per Article 144, all civil and judicial authorities are enjoined to cooperate. Just a few blows of the gavel to any misadventures would be sufficient to send the message loud and clear: That the Court offers no sanctuary to the executive knaves.

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The Hidayatullah example

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much.

Mains level : Paper 2- Requirement of cooling off period for accepting the government office post-retirement by the judges to ensure the independence of judiciary.

Context

It has been recently announced that the President has nominated former Chief Justice of India, Ranjan Gogoi, to the Rajya Sabha. However, the time has come for us to ask a difficult question: Should judges stop accepting post-retirement jobs offered by the government, at least for a few years after retiring, because accepting such posts could undermine the independence of the judiciary?

The issue of post-retirement employment of the judges

  • Retirement age of judges: Unlike federal judges in the US, judges in India do not hold office for life. They remain in office until they reach the retirement age — 65 for Supreme Court judges and 62 for high court judges.
  • Protection against arbitrary removal: These judges do not hold their offices at the “pleasure” of the President. In other words, they cannot be arbitrarily removed by the government once they are appointed, and can only be impeached by a supermajority of both houses of Parliament “on the ground of proved misbehaviour or incapacity”.
  • Difficult impeachment process: The impeachment process is a very difficult one and never in the history of independent India has a judge been impeached, though attempts have sometimes been made to do so. Judges, therefore, enjoy security of tenure while holding office, which is essential for maintaining judicial independence.
  • How retirement of judges could undermine judicial independence? The retirement of judges threatens to undermine judicial independence.
    • This is because some judges — not all — are offered post-retirement employment by the government. It is often feared that a judge who is nearing retirement could decide cases in a manner that pleases the government in order to get a favourable post-retirement position.

Not an unprecedented move

  • Former CJI Gogoi is certainly not the first retired judge to be appointed to political office.
  • In 1952, Justice Fazl Ali was appointed the Governor of Orissa, shortly after retiring from the Supreme Court.
  • In 1958, Chief Justice M C Chagla resigned from the Bombay High Court in order to become India’s Ambassador to the US at Prime Minister Nehru’s invitation.
  • In April 1967, Chief Justice Subba Rao resigned from the Supreme Court to contest elections for President.
  • In 1983, Justice Baharul Islam resigned from the Supreme Court to contest as a Congress (I) candidate for a Lok Sabha seat, after ruling in favour of Bihar’s Congress (I) chief minister, Jagannath Mishra, in a controversial case where Mishra had been accused of criminal wrongdoing and misuse of office.
  • In more recent times, Chief Justice P Sathasivam was appointed the Governor of Kerala. There are many other such examples.

Why restrictions about employment were not included in the Constitution?

  • The Constitution provides that a retired Supreme Court judge cannot “plead or act in any court or before any authority within the territory of India”.
  • Constituent assembly debate: In the Constituent Assembly, K T Shah, an economist and advocate, suggested that high court and Supreme Court judges should not take up an executive office with the government, “so that no temptation should be available to a judge for greater emoluments, or greater prestige which would in any way affect his independence as a judge”.
    • However, this suggestion was rejected by B R Ambedkar because he felt that the “judiciary decides cases in which the government has, if at all, the remotest interest, in fact, no interest at all”.
  • Government is the largest litigant in the courts: In Ambedkar’s time, the judiciary was engaged in deciding private disputes and rarely did cases arise between citizens and the government. “Consequently”, said Ambedkar, “the chances of influencing the conduct of a member of the judiciary by the government are very remote”.
    • This reasoning no longer holds today because the government is one of the largest litigants in the courts.

Question of independence of the judiciary

  • The question of constitutional propriety: In the words of India’s first Attorney General, M C Setalvad, all this raises “a question of constitutional propriety” relating to the independence of the judiciary.
  • After all, could the government not use such tactics to reward judges who decide cases in its favour?
  • Public perception of compromised judiciary: Further, if a judge decides highly controversial and contested cases in favour of the government and then accepts a post-retirement job, even if there is no actual quid pro quo, would this not lead to the public perception that the independence of the judiciary is compromised?

Law Commission recommendations

  • In its 14th report in 1958, the Law Commission noted that retired Supreme Court judges used to engage in two kinds of work after retirement:
    • Firstly, “chamber practice” (a term which would, today, mean giving opinions to clients and serving as arbitrators in private disputes).
    • Secondly, “employment in important positions under the government”.
  • The Law Commission frowned upon chamber practice but did not recommend its abolition.
  • Ban on post-retirement government employment: It strongly recommended banning post-retirement government employment for Supreme Court judges because the government was a large litigant in the courts.
    • The Commission’s recommendations were never implemented.

Conclusion

It is about time that we start expecting the judges of our constitutional courts to follow CJI Hidayatullah’s excellent example in which he had accepted government job only after the cooling period of several years.

 

 

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Right of an accused to be defended

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Right of an accused to be defended

Mains level : Professional ethics for Lawyers (Paper IV)

 

 

Recently the Karnataka High Court observed that it is unethical and illegal for lawyers to pass resolutions against representing accused in court.  This is not the first time that bar associations have passed such resolutions, despite a Supreme Court ruling that these are “against all norms of the Constitution, the statute and professional ethics”.

What does the Constitution say about the right of an accused to be defended?

  • Article 22(1) gives the fundamental right to every person not to be denied the right to be defended by a legal practitioner of his or her choice.
  • Article 14 provides for equality before the law and equal protection of the laws within the territory of India.
  • Article 39A, part of the DPSP, states that equal opportunity to secure justice must not be denied to any citizen by reason of economic or other disabilities, and provides for free legal aid.

What has the Supreme Court said about such resolutions by bar associations?

  • The Supreme Court referred to writer Thomas Paine, who had been tried for treason in England in 1792.
  • Thomas Erskine, Attorney General for the Prince of Wales, was warned of dismissal if he defended Paine, but still took up the brief, saying: “… If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge…”
  • The Supreme Court cited other historical examples of accused being defended — revolutionaries against British rule; alleged assailants of Mahatma Gandhi and Indira Gandhi; Nazi war criminals at the Nuremberg trials.

A matter of professional ethics

  • The Supreme Court ruled that such resolutions are wholly illegal, against all traditions of the bar and against professional ethics.
  • Every person however wicked, criminal, perverted or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly and it is the duty of the lawyer to defend him.
  • It said such resolutions were against all norms of the Constitution, the statute and professional ethics, called these a disgrace to the legal community, and declared them null and void.

How are the professional ethics of lawyers defined?

  • The Bar Council of India has Rules on Professional Standards, part of the Standards of Professional Conduct and Etiquette to be followed by lawyers under the Advocates Act.
  • An advocate is bound to accept any brief in the courts or tribunals, at a fee consistent with his standing at the Bar and the nature of the case.
  • The Rules provide for a lawyer refusing to accept a particular brief in “special circumstances”.
  • Last year, The Uttarakhand HC clarified that these special circumstances refer to an individual advocate who may choose not to appear in a particular case, but who cannot be prohibited from defending an accused by any threat of removal of his membership of the bar association.

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[pib] International Judicial Conference, New Delhi

Note4Students

From UPSC perspective, the following things are important :

Prelims level : International Judicial Conference

Mains level : Highlights of the conference

The President of India delivered the valedictory address at the International Judicial Conference being organised by the Supreme Court of India, in New Delhi.

About the Conference

  • The Conference was organized by the Supreme Court of India.
  • The theme of the Conference was ‘Judiciary and the Changing World’.

Important Topics of discussion at the Conference included :

  1. Gender Justice,
  2. Contemporary Perspectives on Protection of Constitutional Values,
  3. Dynamic Interpretations of the Constitution in a Changing World,
  4. Harmonization of Environment Protection vis-à-vis Sustainable Development and
  5. Protection of Right to Privacy in the Internet Age

Other excerpts:

 “Just-World” Hypothesis

  • The “Just World” fallacy is associated with the actions of bringing fair actions towards education, health, gender equality and other social issues.
  • The Conference introduced the “Just World” concept in the Judicial System of India.
  • By this it aims to take the judicial system of the country to every citizen irrespective of their gender.
  • Also, it aimed to bring upon gender equality in other crucial areas where women have still not earned their recognition, especially the areas of mining and military.

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[pib] 22nd Law Commission of India

Note4Students

From UPSC perspective, the following things are important :

Prelims level : 22nd Law Commission of India

Mains level : Various functions of the LCI

The Union Cabinet has approved Twenty-second Law Commission of India for a period of three years from the date of publication of the Order of Constitution in the Official Gazette.

Law Commission of India

  • It is an executive body established by an order of the Government of India. First law commission of independent India was established post the Independence in 1955
  • Tenure: 3 Years
  • Function: Advisory body to the Ministry of Law and Justice for “Legal Reforms in India”
  • Recommendations: NOT binding
  • First Law Commission was established during the British Raj in 1834 by the Charter Act of 1833
  • Chairman: Macaulay; It recommended for the Codifications of the IPC, CrPC etc.

Composition

The 22nd Law Commission will be constituted for a period of three years from the date of publication of its Order in the Official Gazette. It will consist of:

  1. a full-time Chairperson;
  2. four full-time Members (including Member-Secretary)
  3. Secretary, Department of Legal Affairs as ex-officio Member;
  4. Secretary, Legislative Department as ex officio Member; and
  5. not more than five part-time Members.

Terms of reference

  • The Law Commission shall, on a reference made to it by the Central Government or suo-motu, undertake research in law and review of existing laws in India for making reforms therein and enacting new legislations.
  • It shall also undertake studies and research for bringing reforms in the justice delivery systems for elimination of delay in procedures, speedy disposal of cases, reduction in cost of litigation etc.

The Law Commission of India shall, inter-alia: –

  • identify laws which are no longer needed or relevant and can be immediately repealed
  • examine the existing laws in the light of DPSP and Preamble
  • consider and convey to the Government its views on any subject relating to law and judicial administration that may be specifically referred to it by the Government through Ministry of Law and Justice (Department of Legal Affairs);
  • Consider the requests for providing research to any foreign countries as may be referred to it by the Government through the Ministry of Law and Justice (Department of Legal Affairs);
  • take all such measures as may be necessary to harness law and the legal process in the service of the poor;
  • revise the Central Acts of general importance so as to simplify them and remove anomalies, ambiguities and inequities;

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Explained: Recusals by Judges

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Significance of Judiciary: Impartial and independent of all external pressures

Recently a Supreme Court judge recused himself from hearing a petition filed against the government’s move to charge Omar Abdullah under the Public Safety Act.  The case was finally heard by another bench.

Rules on Recusals

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

Why Judges need recusal?

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

Should the reasons be put on record?

  • In his separate opinion in the NJAC judgment in 2015, Justice (now retired) Kurian Joseph, who was a member of the Constitution Bench, highlighted the need for judges to give reasons for recusal as a measure to build transparency.
  • It is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case, Justice Kurian wrote.
  • One of his companion judges on the Constitution Bench, Justice (retired) Madan B. Lokur, agreed that specific rules require to be framed on recusal.
  • The two judges were referring to senior advocate Fali Nariman’s plea to Justice J.S. Khehar, who was then in line to be the next Chief Justice, to recuse himself.
  • But Justice Khehar refused to recuse himself though he admitted that Mr. Nariman’s plea left him in an “awkward predicament”.
  • Justice Khehar reasoned that he did not recuse himself for fear of leaving an impression that he was “scared”.

What happened in the Judge Loya and Assam detention centres cases?

  • In 2018, petitioners in the Judge Loya case sought the recusal of Supreme Court judges, Justices A.M. Khanwilkar and D.Y. Chandrachud, from the Bench as they both hailed from the Bombay High Court.
  • The case banked on the written statements of two judges from that High Court, both saying that Judge Loya’s death was from natural causes. The court refused the request and called it a “wanton attack”.
  • Recusal, the court observed, would mean abdication of duty. Maintaining institutional civilities are distinct from the “fiercely independent role of the judge as adjudicator”, the court explained.
  • In May 2019, in the middle of a hearing of a PIL filed by activist Harsh Mander about the plight of inmates in Assam’s detention centres, the then-Chief Justice Ranjan Gogoi was asked to recuse himself.
  • In a lengthy order, Justice Gogoi said a litigant cannot seek recusal of the judge. “Judicial functions, sometimes, involve performance of unpleasant and difficult tasks, which require asking questions and soliciting answers to arrive at a just and fair decision.
  • If the assertions of bias as stated are to be accepted, it would become impossible for a judge to seek clarifications and answers,” the court observed.

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Explained: What is Mandamus?

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Mandamus

Mains level : Writ Jurisdiction of SC and HC and their scope

  • The Supreme Court has ruled that reservation in the matter of promotions in public posts is not a fundamental right, and a state cannot be compelled to offer the quota if it chooses not to.
  • It ruled that there  is no fundamental right which inheres in an individual to claim reservation in promotions.
  • Hence no mandamus can be issued by the court directing state governments to provide reservations,” the bench of Justices L Nageswara Rao and Hemant Gupta said.

What is ‘Mandamus’?

  • Mandamus is among the “prerogative writs” in English common law — meaning the extraordinary writs or orders granted by the Sovereign when ordinary legal remedies are inadequate.
  • These are habeas corpus, mandamus, prohibition, certiorari, and quo warranto.
  • In India, the Supreme Court can issue prerogative writs under Article 32 of the Constitution, and the High Courts under Article 226.
  • Mandamus literally means ‘we command’. When issued to a person or body, the writ of mandamus demands some activity on their part.
  • It orders the person or body to perform a public or quasi-public duty, which they have refused to perform, and where no other adequate legal remedy exists to enforce the performance of that duty.

When is it used?

  • The writ cannot be issued unless the legal duty is of public nature, and to whose performance the applicant of the writ has a legal right.
  • The remedy is of a discretionary nature — a court can refuse to grant it when an alternative remedy exists.
  • However, for enforcing fundamental rights, the alternative remedy argument does not hold as much weight, since it is the duty of the Supreme Court and the High Courts to enforce fundamental rights.
  • When a public officer or government does an act that violates the fundamental right of a person, the court would issue a writ of mandamus against such authorities so that the person’s rights are not infringed.
  • The writ can also be issued against inferior courts or other judicial bodies when they have refused to exercise their jurisdiction and perform their duty.

Limitations

  • Under Article 361, mandamus cannot be granted against the President or Governor of a State, “for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties”.
  • The writ also cannot be issued against a private individual or body, except where the State is in collusion with the private party for contravening a provision of the Constitution or a statute.

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[pib] National Judicial Pay Commission

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Second National Judicial Pay Commission

Mains level : Judiciary instititutional issues

The Second National Judicial Pay Commission has filed its report covering the subject of Pay, Pension and Allowances in the Supreme Court.

Second National Judicial Pay Commission

  • The Commission is headed by former Supreme Court judge P V Reddy.
  • It was set up on the directions of the apex court in May 2017 during the hearing of the All India Judges Association case.

Key recommendations

1) Pay

  • It has recommended the adoption of Pay Matrix which has been drawn up by applying the multiplier of 2.81 to the existing pay, commensurate with the percentage of increase of pay of High Court Judges.
  • The highest pay which a District Judge (STS) will get, is Rs.2,24,100/-.

2)  Pension

  • Pension at 50% of last drawn pay worked out on the basis of proposed revised pay scales is recommended w. e. f. 1-1-2016. The family pension will be 30% of the last drawn pay.
  • Recommendation has been made to discontinue the New Pension Scheme (NPS) which is being applied to those entering service during or after 2004. The old pension system, which is more beneficial to be revived.

3) Allowances

  • The existing allowances have been suitably increased and certain new features have been added. However, the CCA is proposed to be discontinued.
  • Certain new allowances viz. children education allowance, home orderly allowance, transport allowance in lieu of pool car facility, has been proposed.

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Gram Nyayalayas

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Gram Nyayalayas

Mains level : Gram Nyayalayas and its jurisdiction

The Supreme Court has directed the states, which are yet come out with notifications for establishing Gram Nyayalayas, to do so within four weeks.

What are Gram Nyayalayas?

  • 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 the Gram Nyayalaya to hold mobile court outside its headquarters.
  • However, the Act has not been enforced properly, with only 208 functional Gram Nyayalayas in the country ( Sept. 2019) against a target of 5000 such courts.
  • The major reasons behind the non-enforcement include financial constraints, reluctance of lawyers, police and other government officials.

Features of the Gram Nyayalayas

  • Gram Nyayalaya are established generally at headquarter of every Panchayat at intermediate level or a group of contiguous panchayat in a district where there is no panchayat at intermediate level.
  • The Gram Nyayalayas are presided over by a Nyayadhikari, who will have the same power, enjoy same salary and benefits of a Judicial Magistrate of First Class.
  • Such Nyayadhikari are 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 regards.
  • 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.
  • Gram Nyayalayas has been given power to accept certain evidences which would otherwise not be acceptable under Indian Evidence Act.

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Curative Petition

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Review Petition, Curative Petition

Mains level : Capital Punishment and its justification

Curative petitions were filed in the Supreme Court by two convicts in the Nirbhaya case after their execution was scheduled.  The case had shocked the nation and led to the tightening of anti-rape laws. Rape, especially gang rape, is now a capital crime.

Background

  • The concept of Curative petition was evolved by the Supreme Court of India in the matter of Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002) Judgement.
  • The question was whether an aggrieved person is entitled to any relief against the final judgement/order of the Supreme Court, after dismissal of a review petition.
  • The Supreme Court in the said case held that in order to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgements in exercise of its inherent powers.

Curative Petition

  • For this purpose, the court has devised what has been termed as a “curative” petition.
  • In the Curative petition, the petitioner is required to aver specifically that the grounds mentioned therein had been taken in the review petition filed earlier and that it was dismissed by circulation.
  • This has to be certified by a senior advocate. The Curative petition is then circulated to the three senior most judges and the judges who delivered the impugned judgement, if available.
  • No time limit is given for filing Curative petition. It is guaranteed under Article 137 of Constitution of India i.e. powers of the Supreme Court to review of its own judgements and orders.

Review Petition

  • Article 137 of the Constitution provides that subject to provisions of any law and rule made under Article 145 the Supreme Court of India has the power to review any judgement pronounced (or order made) by it.
  • Thus binding decision of the Supreme Court/High Court can be reviewed in Review Petition.
  • The parties aggrieved on any order of the Supreme Court on any apparent error can file a review petition.
  • Taking into consideration the principle of stare decisis courts generally do not unsettle a decision, without a strong case. This provision regarding review is an exemption to the legal principle of stare decisis.
  • Under Supreme Court Rules, 1966 such a petition needs to be filed within 30 days from the date of judgement or order.
  • It is also recommended that the petition should be circulated without oral arguments to the same bench of judges that delivered the judgement (or order) sought to be reviewed.

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Article 142 of the Indian Constitution

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Art. 142

Mains level : Discretionary powers of Judiciary

Recently the Supreme Court has used its extraordinary powers under Article 142 of the Constitution to grant divorce in a case of “irretrievable breakdown of marriage”.

Irretrievable breakdown of marriage

  • It is defined as the situation that exists when either or both spouses are no longer able or willing to live with each other, thereby destroying their husband and wife relationship with no hope of resumption of spousal duties.
  • Currently, Hindu marriage law does not include “irretrievable breakdown of marriage” as a ground for divorce.
  • However, the apex court in a number of cases has provided the said relief using the extraordinary powers that allow it to do “complete justice”.
  • The Law Commission has twice recommended that “irretrievable breakdown” of marriage be included as a new ground for granting divorce to Hindus under this Act and the Special Marriage Act.

Present grounds for divorces

  • The Hindu Marriage Act, 1955, lays down the law for divorce, which applies to Hindus, Buddhists, Jains, and Sikhs.
  • Under Section 13 of the Act, the grounds for divorce include: “voluntary sexual intercourse with any person other than his or her spouse”; “cruelty”; desertion “for a continuous period of not less than two years immediately preceding the presentation of the petition”; “ceasing to be a Hindu by conversion to another religion”; and being “incurably of unsound mind”.
  • In addition, Section 13B provides for “divorce by mutual consent”.
  • Section 27 of The Special Marriage Act, 1954 provides the grounds for grant of divorce in the case of marriages solemnized under that Act.
  • However, neither of the two Acts provide for “irretrievable breakdown of marriage” as a ground for divorce.

What is Article 142 of the Constitution?

  • Article 142 provides discretionary power to the Supreme Court as 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.
  • The provision vests sweeping powers in the Supreme Court for the end of ensuring “complete justice” and is usually used in cases involving human rights and environmental protection.
  • Last month, it was also used during the Ayodhya judgment, making the first such case where it was invoked for a civil dispute over an immovable property that involved private parties.

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[op-ed snap] We need to invest in four wings of criminal justice system — police, prosecution, judiciary, prisons

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Instant justice; Criminal Justice system and need for Rule of Law

Context

The changes in the law and procedure post the December 2012 Delhi gangrape and murder case could not curb the predators of further crime. The nation thus welcomed recent encounter of the 4 accused in the crime.

Criminal Justice -> Instant justice

  • The clamor for quick action stems from the fact that the criminal justice system has failed in the country. 
  • Delay in trials – Even if a criminal is convicted, the appeals that follow lead to a further delay of more than five years. Citizens lose faith in the law and they hero-worship officers who “encounter” these criminals. They cite examples of the Delhi 2012 accused still in Tihar and Ajmal Kasab, who was hanged six years after the gruesome killing of innocent citizens in Mumbai. 
  • Witnesses – due to the delay in trials, the witnesses lose interest or do not attend hearings. Documents are lost, seized weapons are not traceable. 
  • Officials – The investigating officers get transferred and thus can not monitor trials. The complainant gives up.
  • Conviction rate – the poor conviction rate may not attract the immediate attention of citizens but reinforces a general feeling of lawlessness.

Way ahead

  • Police investigation and presentation by the prosecutors need to improve. 
  • Session courts – Session courts need to finish cases at one go, within a week or fortnight, and not hear them in a piecemeal manner. They need to clamp down heavily on adjournments. 
  • Appeal timeline – Higher courts must dispose of appeals within a fixed time frame. 
  • Staff – Expenses for more judicial officers and their staff should be met by the Centre and state governments jointly. 
  • For a rape accused who is sentenced, his final appeal has to be disposed of within a year.
  • Organised communication – For police, medical officers, forensic experts, prosecutors, and judicial officers to work together as a team, the formal interactive sessions between them have to be organised. 
  • Training – Regular training workshops will lead to an exchange of information, knowledge-sharing and mutual trust among different wings of the criminal justice system. 

Conclusion

We have to invest in all four wings of the crumbling criminal justice system — police, prosecution, judiciary and prisons. India, after more than 70 years of Independence, needs to be the lighthouse for the rule of law.

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[op-ed snap] Instant injustice

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much.

Mains level : Judiciary, women’s safety.

Context:

Encounters, like the one in Telangana, call attention to a criminal justice system in need of urgent reform.

Question of instant injustice:

  • Following the recent encounter in Telangana, the Uttar Pradesh police announced that in the last 2 years they have killed 103 criminals.
  • Chhattisgarh encounter of June 2012 is an example of innocents being killed in extrajudicial killings.
  • While these examples seem to raise the question of instant justice, they actually raise the question of instant injustice.
  • We need to recognise this dividing line.
  • Our progressive Constitution gives us the rule of law where everyone is presumed innocent until proven guilty through a fair trial.

What is wrong with our criminal justice system?

  • Pendency of the cases is the biggest challenge.
  • As per the National Judicial Data Grid, more than 20 lakh criminal cases are pending for more than 10 years in district courts and high courts.
  • As per the National Crime Record Bureau (NCRB) (2017) report, 1.27 lakh cases of rape are pending in the courts at various stages.
  • With 1840 pending for more than 10 years.
  • More than 30,000 cases of rape were registered in 2017 alone.
  • Assuming no dramatic improvement, when will the more than 90 statistically and tragically likely to be raped today see justice?

Utilisation of funds:

  • They say prevention is better than cure, but it is not the case if we look at the fund utilisation.
  • Over the last five years, utilisation of fund released by the Ministry of Home Affairs for the Nirbhaya fund projects is dismal.
  • Overall it is 9 per cent and in the case of Maharashtra, it is 0 per cent.
  • Similarly, funds released by the Ministry of Women and Child Development have been used to the extent of 20 per cent and in Madhya Pradesh, it is 0 per cent.

Way forward:

  • Widening the definition and making punishment more stringent is not the answer. 
  • Procedural changes are required.
  • Infrastructure for the courts must be paid attention to on an urgent basis.
  • Problems of the vacancies of the judges must be addressed.
  • What is essential is a study of the requirements of each court before any realistic solution is proffered.

Conclusion:

While this task will require an enormous effort, it needs to be carried out as a mission mode project in public interest, otherwise, we will continue to witness the sufferings of women followed by the examples of instant injustice.

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[op-ed snap] Fraught course

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Verdicts on religious issues - Constitutional Morality

Context

A five-judge constitution bench has deferred its decision on the review of the 2018 Sabarimala verdict until a larger bench examines a range of broader issues.

Complications with a larger bench

    • The parameters of review usually permit a narrow reconsideration in case of an error in the verdict or discovery of new evidence. 
    • Apprehensions that the majority judgment could open up new questions go well beyond technicalities. 
    • The court has clubbed together with the question of the entry of women of menstruating age into the Sabarimala temple with others — the entry of Muslim women in the dargah/mosque and of Parsi women married to non-Parsis to the holy fireplace of an Agyari. 
    • Also whether female genital mutilation in the Dawoodi Bohra community constitutes that religion’s essential practice. 
    • It has put together issues that may not belong in the same frame.

Religion vs Fundamental Rights – Constitutional Morality

    • The-seven-judge bench has been asked to find a balance between the right to freedom of religion and other constitutionally-guaranteed rights.
    • It is expected to define “essential religious practice” and “constitutional morality”. 
    • In a large and diverse democracy, spelling out judicial doctrines on these matters removes essential ambiguities. 
    • It also narrows the room for maneuver for them and eventually for justice. 
    • Constitutional morality has been used to emancipatory effect in past cases by the apex court in striking down the restrictions on women of a certain age in the 2018 Sabarimala decision. In another verdict in the same year on decriminalising homosexuality. 
    • The court upheld ideas of freedom and equality and the constitutional promise of a pluralistic and inclusive society while redressing an injustice. 
    • In defining constitutional morality, the court will have to go into the question of its limits and boundaries, its clash with religious beliefs and faith and what is essential to them. 
    • It could not only be tying its own hands for the future but also circumscribing individual freedoms and treading into the clergy’s domain.

Conclusion

    • The court has been inconsistent in applying the essential religious practice doctrine that it evolved in the 1950s. 
    • The court’s push for expanding its remit and for clarity on complex questions is misguided and counterproductive. 
    • In some cases, it is okay to keep to the narrow path, take it case by case.

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Explained: What bringing the CJI’s office under RTI means

Note4Students

From UPSC perspective, the following things are important :

Prelims level : RTI

Mains level : Read the attached story

Context

  • Recently the Supreme Court has ruled that the office of the CJI is a public authority under the Right to Information (RTI) Act.
  • A five-judge Constitution Bench headed by CJI Gogoi upheld a Delhi High Court ruling of 2010 and dismissed three appeals.

SC plea to SC

  • The Supreme Court in 2010 petitioned itself challenging the Delhi High Court order.
  • The matter was placed before a Division Bench, which decided that it should be heard by a Constitution Bench.
  • The Constitution Bench remained pending across the tenures of CJI K G Balakrishnan, S H Kapadia, Altamas Kabir, P Sathasivam, R M Lodha, H L Dattu, T S Thakur, J S Khehar and Dipak Misra.

What is the new ruling?

  • While ruling that the office of the CJI is a public authority, the Supreme Court held that RTI cannot be used as a tool of surveillance and that judicial independence has to be kept in mind while dealing with transparency.
  • While CJI Gogoi, Justice Gupta and Justice Khanna wrote one judgment, Justices Ramana and Chandrachud wrote separate verdicts.
  • Justice Ramana noted that Right to Privacy is an important aspect and has to be balanced with transparency while deciding to give out information from the office of the Chief Justice of India.
  • Justice Chandrachud wrote in his separate judgment that the judiciary cannot function in total insulation as judges enjoy a constitutional post and discharge public duty.

Balancing is crucial

  • The verdict underlines the balance Supreme Court needs between transparency and protecting its independence.
  • The step is significant because it opens the doors to RTI requests that will test the frontiers of what has been a rather opaque system.
  • What new red lines are drawn will decide how effective the step is.

Where lies Public Authority?

Under Section 2(f) of the RTI Act, information means “any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force”.

Implications of the ruling

  • The outcome is that the office of the CJI will now entertain RTI applications.
  • Whether a public authority discloses the information sought or not, however, is a different matter.
  • Offices such as those of the PM and the President too are public authorities under the RTI Act.
  • But public authorities have often denied information quoting separate observations by the Supreme Court itself in 2011.
  • Officials need to furnish only such information which already exists and is held by the public authority and not collate or create information.
  • It held that the nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties”.

CBI is still out of RTI

  • While the office of the CJI is now under the RTI’s ambit, the CBI is exempt.
  • The CBI, which is an agency that is often engaged in investigation of corruption cases, is today included in a list of exempted organisations in which most of the others are engaged in intelligence gathering.
  • The Administrative Reforms Commission had earlier recommended exemption of the armed forces from the RTI Act, but had not made such a recommendation for the CBI.
  • While the CBI demanded exemption only for units in intelligence gathering, exemption was granted in 2011 to the agency as a whole.
  • Litigation challenging the decision to exempt the CBI is pending with the Supreme Court; the next date of hearing, however, has not been fixed.

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Judicial Reforms

Doctrine of Essentiality

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Doctrine of Essentiality

Mains level : Constitutional significance of Doctrine of Essentiality

Context

The Supreme Court has decided to refer the Sabarimala temple case to a larger 7-judge Bench.

This reopens not only the debate on allowing women of menstruating age into the Ayyappa temple but the larger issue of whether any religion can bar women from entering places of worship.

The case for Sabarimala

  • The majority opinion in the 2018 Sabarimala verdict had said that women have a fundamental right to equality in accessing public places which includes places of worship.
  • However, since the Sabarimala verdict will essentially be heard afresh, the constitutional debate on gender equality will open up once again.
  • The review gives the ‘devotees’ and the Sabarimala temple authorities who have battled the Supreme Court verdict a foot in the door to have the verdict potentially overturned.

What is the Supreme Court’s Doctrine of Essentiality?

  • The doctrine of “essentiality” was invented by a seven-judge Bench of the Supreme Court in the ‘Shirur Mutt’ case in 1954.
  • It is a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religion.
  • The court held that the term “religion” will cover all rituals and practices “integral” to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion.
  • Referring to the Ayodhya case, the Constitution Bench had ruled in 1994 that A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open.

How has the doctrine been used in subsequent years?

  • The ‘essentiality doctrine’ of the Supreme Court has been criticised by several constitutional experts.
  • Scholars of constitutional law have argued that the essentiality/integrality doctrine has tended to lead the court into an area that is beyond its competence, and given judges the power to decide purely religious questions.
  • As a result, over the years, courts have been inconsistent on this question — in some cases they have relied on religious texts to determine essentiality.
  • In others it relied on the empirical behaviour of followers, and in yet others, based on whether the practice existed at the time the religion originated.

Issues over the doctrine

  • In the beginning, the court engaged with the question of whether untouchability, manifested in restrictions on entry into temples, was an “essential part of the Hindu religion”.
  • After examining selected Hindu texts, it came to the conclusion that untouchability was not an essential Hindu practice.
  • The idea of providing constitutional protection only to those elements of religion which the court considers “essential” is problematic as it assumes that one element or practice of religion is independent of other elements or practices.
  • So, while the essentiality test privileges certain practices over others, it is, in fact, all practices taken together that constitute a religion.

How does essentiality square up against religious freedom?

  • Freedom of religion was meant to guarantee freedom to practice one’s beliefs based on the concept of “inward association” of man with God.
  • The apex court in ‘Ratilal Panachand Gandhi vs The State of Bombay and Ors’ (March 18, 1954) acknowledged that “every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience”.
  • The framers of the Constitution wanted to give this autonomy to each individual. Scholars have argued that the essentiality test impinges on this autonomy.
  • The apex court has itself emphasised autonomy and choice in its Privacy (2017), 377 (2018), and Adultery (2018) judgments.

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CJI’s office comes under ambit of RTI Act, SC says

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Public Office, RTI Act

Mains level : Read the attached story

The office of the Chief Justice of India is a public authority and falls under the ambit of Right to Information Act, the Supreme Court ruled today.

What’s the issue?

  • The five-judge bench of CJI Ranjan Gogoi, Justices N V Ramana, D Y Chandrachud, Deepak Gupta and Sanjiv Khanna passed the judgment on an appeal filed by the Supreme Court administration.
  • The appeal challenged the 2010 order of the Delhi high court which held that the CJI’s office comes under the ambit of the Right to Information Act.
  • Oppositions to the plea had contended that courts had time and again given a slew of directions to infuse transparency in the functioning of various institutions.
  • The bench had agreed that there should be transparency, but added there was a need to do balancing.

Who is a “Public Authority”?

In 2011, the Punjab-Haryana High Court while deciding on 24 civil writ petitions against the Central/State Information Commissioners had held that if any person, or body, satisfies the following conditions then it would “squarely fall within the ambit and scope of definition of ‘public authorities'” and would be “legally required to impart the indicated information as envisaged under the RTI Act” –

  • the institution cannot come into existence and function unless registered and regulated by the provisions of a legislation; or
  • the State Government has some degree of control over it through the medium of Acts/Rules; or
  • it is substantially financed by means of funds provided directly, or indirectly, by the appropriate Government; or
  • the mandate and command of the provisions of the RTI Act along with its Preamble, aims, objects and regime extends to their public dealing; or
  • the larger public interest and totality of the other facts and circumstances emanating from the records suggest that such information may be disclosed.

The Delhi High Court order

  • In a landmark verdict on January 10, 2010, the Delhi High Court had held that the office of the Chief Justice of India comes within the ambit of the RTI law.
  • It said that the judicial independence was not a judge’s privilege, but a responsibility cast upon him.
  • The 88-page judgment was then seen as a personal setback to the then CJI, KG Balakrishnan, who has been opposed to disclosure of information relating to judges under the RTI Act.

RTI < < Judiciary

  • The apex court said that the right to privacy and confidentiality is an important aspect and has to be balanced while taking a decision on giving out information from the CJI’s office.
  • The CJI-led bench added that transparency cannot be allowed to run counter to right to privacy.
  • The bench said that the information commissioner must apply test of proportionality while entertaining applications seeking information from the CJI’s office.
  • However it must keep in mind right to privacy and independence of judiciary.

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Judicial Reforms

India Justice Report 2019

Note4Students

From UPSC perspective, the following things are important :

Prelims level : India Justice Report 2019

Mains level : State of Judicial functioning in India


  • The India Justice Report 2019 was recently published.

India Justice Report

  • It was commissioned by Tata Trusts.
  • It is prepared by groups like Centre for Social Justice, Common Cause, Commonwealth Human Rights Initiative, DAKSH, Tata Institute of Social Sciences – Prayas and Vidhi Centre for Legal Policy.
  • It looks into the ‘four pillars’ – of Judiciary, Legal Aid, Police and Prisons, analysing the budgets, human resources, personnel workload, diversity, infrastructure and trends against the government’s declared standards and benchmarks.

Highlights of the report

Policing

  • The study took several factors to assess the police system in the states, ranging from modernisation, inducing women, diversity, budgeting, human resource planning and infrastructure.
  • On this front, the best score was achieved by Tamil Nadu – 6.49. UP received a score of 2.98, whereas Bihar got 3.77.
  • UP fared poor in terms of budgeting, spending on police per person, vacancies and diversity.

Prisons

  • This parameter was assessed on various factors ranging from overcrowding, inclusion of women staff, adequate human resources, budgeting, infrastructure, etc. Jharkhand fared the worst with a score of 3.46.
  • It was followed by Uttarakhand (3.72), Punjab (4.35), Andhra Pradesh (4.35) and UP (4.42). Surprisingly, Bihar stood at number six with a score of 5.61. The best in this regard was Kerala with a score of 7.18.

Judiciary

  • This parameter was assessed on availability of judges, clearance of cases, spending on judiciary, etc.
  • Bihar, with a score of 2.41, fared the worst in this regard. It was followed by UP (3.7), Karnataka (3.76), Uttarakhand (4.17) and Jharkhand (4.3).
  • Tamil Nadu again featured on the top in terms of judiciary with a score of 6.99. It was followed by Punjab (6.57), Haryana (6.23) and Maharashtra (5.96).
  • On an average, Bihar saw a bleak growth in expenditure on judiciary in comparison to total spending.
  • From 2011 to 2016, the state expenditure rose by 17.8 per cent; however, expenditure on judiciary rose by only 8 per cent.

Legal aid

  • The report also highlighted the importance of legal aid.
  • It said that almost 80 per cent of India’s 1.25-billion population is eligible for free legal aid, but only 15 million people have availed it since 1995.

States performance

  • Maharashtra has topped the list of states in delivering justice to people followed by Kerala, Tamil Nadu, Punjab and Haryana.
  • Law and order has always been a major concern in the two big states of Uttar Pradesh and Bihar.
  • A deeper look at the statistics reveals that in almost every aspect, UP and Bihar exchanged the last and second last position.

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[oped of the day] A road map for criminal justice reforms

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Criminal justice reforms

Context

Home Minister recently said that the Bureau of Police Research and Development should work to amend the various sections of the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC). 

Need for reforms

  • Well-conceived reforms in these laws would translate into reforms in criminal justice. 
  • Criminal law is considered to be the most apparent expression of the relationship between a state and its citizens. 
  • There is a systemic error of non-adherence to a particular theory of punishment. The criminal justice system often swings between the three theories of deterrence, retribution and reformation depending on its convenience.

Issues with amendments so far

  • Until now, envisaged amendments were always focused on specific provisions, offences, or classes of offences.
  • The clarity required for the creation of new offences, reclassification or removal of existing offences, and changes to the quantum of punishment is missing from the discourse.


Way ahead – Principles to be followed

  • Government must first identify the provisions to be revised and provide a justification for doing so. 
  • The authors of Codification, Macaulay and the Indian Penal Code suggest a relook into the general principles of criminal law, the language of the IPC, and the rules which should govern its interpretation. 

Central place to victim

  • Victimological underpinnings should be given a major thrust in reforming laws to identify the rights of crime victims. 
  • Victim and witness protection schemes, use of victim impact statements, advent of victim advocacy, increased victim participation in criminal trials, enhanced access of victims to compensation and restitution are steps needed.
  • These all point towards the increased role of victims in the criminal justice system.

New offences

  • Construction of new offences and reworking of the existing classification of offences must be informed by the altered principles of criminal jurisprudence from the past four decades. 
  • Liability questions in offences need a fresh look. Criminal liability could be graded better to assign the degree of punishments. 
  • New types of punishments like community service orders, restitution orders, and other aspects of restorative and reformative justice could also be brought into this fold.

Reclassifying offences

  • The scheme of chapters and classification of offences can be drastically reworked. 
  • Offences like criminal conspiracy, sedition, offences against coin and stamps etc. must be abolished or replaced. 
  • Chapters of the IPC are overloaded at several places. 
  • It is unnecessary to have hundreds of sections in the category of property offences. Even the chapters on offences against public servants, contempt of authority, public tranquility, and trespass can be redefined and narrowed. 
  • New offences under a fresh classification scheme, like those suggested by the Malimath Committee on criminal justice reforms, can be introduced. 
  • Classification of offences must be done in a manner conducive to management of crimes in the future.

Criminalisation

  • Unprincipled criminalisation must be avoided to save the state from dealing with too many entrants into the criminal justice system. 
  • Guiding principles need to be developed after sufficient debate before criminalising an act as a crime. 
  • Unprincipled criminalisation often leads to not only the creation of new offences on unscientific grounds, but also arbitrariness in the criminal justice system.

Reforms in sentencing

  • Sentencing reforms are highly imperative. 
  • Principled sentencing is needed as judges at present have the discretion to decide the quantum and nature of sentence to be imposed.
  • Often sentence convicts differently for crimes of the same nature and/or gravity.

Conclusion 

  • Criminal justice is in a state of policy ambiguity. 
  • India needs to draft a clear policy that should inform the changes to be envisaged in the IPC or CrPC. 
  • Simultaneous improvements are to be made in the police, prosecution, judiciary and in prisons.
  • A Criminal Justice Reform Committee with a mandate to evolve criminal justice policy should be formed. 
  • It should further the work done by the Menon Committee on Criminal Justice System, the Malimath Committee, and the Law Commission in India in this regard.

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[op-ed snap] It’s about benchmarks

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Challenges to Judicial functioning

Context

  • Justice Arun Kumar Mishra has refused to recuse himself from the Constitution Bench that has to re-examine a controversial judgment that he delivered last year.

Background

  • In 2014, a three-judge bench led by then CJI R M Lodha held in the Pune Municipal Corporation case that compensation under the Land Acquisition Act had to be deposited in the Court.
  • It ruled that a mere deposit of money in the government treasury cannot be regarded as payment made to landowners and the acquisition would lapse.
  • In 2018, another three-judge bench overruled this verdict in the Indore Development Authority case.

Setting aside a verdict

  • This verdict in the Indore Development Authority case did not satisfy the apex court’s criteria for setting aside a verdict.
  • In the Dawoodi Bohra Community case in 2005, the court had said that a verdict can be overruled only by a bench of larger strength.
  • In 2018, another case on land acquisition compensation came up before a SC bench. This bench put a stay on all such cases till the anomalies in the Indore Development Authority case were referred to the CJI.

Recusals

  • There have been other recusal refusals. CJI Gogoi refused to recuse himself in the Assam Detention Centre case. He observed that the inability, difficulty or handicap of a judge to hear a particular matter is to be perceived by the judge himself and no one else.
  • The law on recusal was laid down by Justice M N Venkatachaliah in Ranjit Thakur where he observed that the proper approach for the judge is not to look at his own mind and ask himself, ‘am I biased’; but to look to the mind of party before him”.
  • A judge should ideally recuse from a proceeding in which his impartiality might reasonably be questioned due to the possibility of personal bias or prejudice or if he has been a lawyer or judge in the matter at some stage.
  • The decision of recusal should be made by the judge as per the dictates of his conscience. But ideally, when a judge recuses himself, he should state the reasons for his decision.
  • A recusal should not become a convenient method to get rid of a judge.
  • Bench hunting must not be permitted through recusal requests and such requests should not be used to intimidate a judge.
  • In the R K Anand case (2009), the Supreme Court said that “a motivated application for recusal needs to be dealt with sternly and should be viewed as interference in the due course of justice leading to penal consequences”.

Way ahead

  • The judicial system should consider changing the system of hearing recusal requests.
  • Ideally, such a request should not be heard by the bench but only by the judge concerned.
  • In the Jewell Ridge Coal Corporation case (1945), the US Supreme Court held that it is the responsibility of the judge in question to hear such a request.
  • In 2014, Justice Antonin Scalia of the US Supreme Court heard the requests for his recusal in in a case pertaining to the country’s Vice President Dick Cheney.

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[op-ed snap] Judiciary must take proactive steps to stop lynching, punish perpetrators.

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Role of judiciary in protecting Fundamental Rights

Context

The October 4 order by the chief judicial magistrate of Muzaffarpur is worrisome in so far as he entertained a petition by a serial litigant, directing the police to register an FIR against 49 eminent citizens who had written a letter to the PM to intervene and stop lynchings. 

Supreme Court observations

    • The constitution bench of the Supreme Court of India in its judgment of July 2018 held that authorities which are conferred with the responsibility to maintain law and order in the States have the principal obligation to see that vigilantism of any perception does not take place.
    • When any core group with some kind of idea takes the law into their own hands, it ushers in anarchy, chaos, disorder and, eventually, there is an emergence of a violent society.
    • Lynching is an affront to the rule of law and to the exalted values of the Constitution itself.
    • Hate crimes as a product of intolerance, ideological dominance and prejudice ought not to be tolerated; lest it results in a reign of terror.
    • The Court laid down various guidelines for the central and state governments — including preventive, ameliorative and punitive measures.
    • It directed the appointment of nodal officers by the police in each district of every state in this regard.
    • It also recommended the Parliament to create a separate offense for lynching and provide adequate punishment for the same.

Role of judiciary

    • Though the right to life is a Fundamental Right, the violations in these types of cases go unpunished or under-punished. 
    • In a large number of cases of this kind, the judges have been extremely lenient towards the perpetrators. Acquittals in virtually open-and-shut cases have come at regular intervals, as in the Pehlu Khan lynching case. 
    • The orders for granting bail by the Jharkhand High Court in the Ramgarh lynching case, by the Allahabad high court in Bulandshahr lynching case, by the Bombay High Court in Dhule lynching case, by the Punjab and Haryana High Court in Junaid lynching case, and, by the sessions court in Hapur lynching case, are some of the instances which raise serious question marks on the judicial approach of the courts in India towards such heinous crimes. 
    • The grant of bail to the convicted and accused in the Gujarat riot cases add to this list of avoidable decisions. 
    • This is compounded by the approach of the police in improperly investigating cases and not taking them to their logical end before the courts. 

Way ahead

    • The SC and the high courts to take up such cases of acquittals/grant of bails suo motu, and pass appropriate orders after hearing concerned parties. 
    • This should be the approach of the entire judiciary, which is the ultimate protector of the Right to Life as guaranteed under Article 21 of the Constitution. 
    • The judiciary needs to undergo extensive sensitisation programs to deal with such matters.

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[oped of the day] Populist impulses and a question of judicial overreach

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Judicial Overreach

Op-ed of the day is the most important editorial of the day. This will cover a key issue that came in the news and for which students must pay attention. This will also take care of certain key issues students have to cover in respective GS papers.

Context

Apart from independence from politics, the judiciary also needs independence from popular interest. These words were said by former Chief Justice of India (CJI) S.H. Kapadia. 

Judgements by the popular narrative

    • A large number of judgements appear to have reinforced local populist narratives in India. 
    • Recently, justice S.R. Sen of the Meghalaya High Court said in a ruling that “political leaders were too much in a hurry to get the independence… thus creating all the problems today” and “India, since [it] was divided on the basis of religion, should have also been declared as a Hindu country”.
    • In the T.N. Godavarman versus Union of India case, the Supreme Court defined a ‘forest’ in the absence of a definition in the Forest Act and, in so doing,…it took over the governance of the forests in India.”

Judicial overreach

    • Art 142 – The grandiose executive judgements seem to take charge of some aspects of the country’s governance. Article 142 of the Constitution makes this possible.
    • Started with 1st amendment – The very first amendment of the Constitution in 1951 marked the beginning of a long-drawn battle between the executive and the judiciary. It took land reform statutes beyond the scope of judicial review. 
    • Golaknath versus State of Punjab case – barred Parliament from curtailing any fundamental right assured by the Constitution.
    • Indira Gandhi – she launched a vociferous attack on the ethos of the judiciary, portraying the institution as anti-poor and anti-socialist. 
      • 24th amendment reversed the Golakhnath judgement. 
      • Justice A.N. Ray who dissented in the Kesavananda Bharati case was made the CJI, superseding three senior judges. 
      • Justice H.R. Khanna—the lone dissenter in a habeas corpus case during the 1975-77 Emergency, who was next in line to become the CJI—was superseded by justice M.H. Beg.
    • Political past – seen in the above context, courts had to outdo their political masters and regain credibility. Supreme Court was in search of popular legitimacy. 
    • PIL – The rule of locus standi was relaxed; technical barriers were removed; evidence could be gathered by a court-appointed commission, and lax procedural requirements gave way to deprofessionalized justice.  
    • Positive – political vacuum is filled by the benevolence of the judiciary. 

Challenges with judicial overreach

    • Cost > Gain – History is replete with examples where the costs of such judicial interventions have outweighed their gains. 
    • PILs filed by M.C. Mehta led to Delhi’s urban transformation. 
      • This also resulted in large-scale deindustrialization of the city, as “green judges” ordered the relocation of 168 large industries, rendering thousands jobless. 
      • Delhi’s vehicular pollution case led to the conversion of all public transport vehicles to CNG from diesel or petrol, resulting in a sudden drop in public transport supply and an increase in private vehicles.
    • The rich benefit more – A World Bank working paper, Public Interest litigation In India Overreaching Or Underachieving?, Varun Gauri says that claimants from advantaged classes have a 73% probability of winning a fundamental rights claim, compared to 47% for non-advantaged classes. 
    • The burden on the poor – We now have a disproportionately large financial burden on the original beneficiaries of well-meaning PILs—the poor and the marginalized. 
    • Image of judges – we have judges with larger-than-life public images. 
    • Distorted procedures – Procedural supremacy has suffered and doubts have arisen over the competence of our courts in assessing policy interventions.

Way ahead

    • Guidelines on boundaries – The judiciary must evolve a set of guidelines that lays down a procedure in consonance with the executive. It should not delve into issues which are beyond its domain of expertise. 
    • Expert group – The Supreme Court’s recently constituted in-house think tank, Centre for Research and Planning could be enlarged to encompass the academic rigour required for issues related to governance.

Conclusion

Judiciary should follow due standard operating procedures. It is not a question of merely achieving the desired outcomes— if a precedent of faulty means to achieve such ends is set, then the dignity of the institution could possibly end up being held hostage to the idiosyncrasies of a single judge at its helm.

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Judicial Reforms

[op-ed snap] Sedition annoyance

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Sedition law - misuse

Context

A case of sedition was registered against 49 prominent citizens at a police station in Bihar for writing an open letter. 

The letter

  • The appeal asks for steps to stop lynching and other hate crimes, especially in the name of religion.
  • There is nothing that even vaguely made an attempt to promote disaffection or any prejudice to national integration. 
  • Criminal proceedings are initiated against the film-makers, artists, and writers such as Shyam Benegal, Adoor Gopalakrishnan, Aparna Sen and Ramachandra Guha for signing the open appeal on a matter of public concern. 
  • A chief judicial magistrate had taken this complaint on file and directed the police to register an FIR. 

Misuse of the law and procedure

  • The Supreme Court in Lalita Kumari vs. Uttar Pradesh (2013), laid down that registration of an FIR is mandatory if information received by the police discloses a cognisable offence. 
  • In some cases, a preliminary inquiry may be conducted before the FIR is registered. 
  • In this case, it is surprising how the court or the police could conclude that the contents were seditious or indicative of any other offence.
  • Private complaints targeting public figures are not unusual. 
  • The disregard for public opinion against the indiscriminate use of the sedition provision is disappointing.
  • Supreme Court judgments say sedition is attracted only if there is an incitement to violence and does not apply to statements that contain mere opinions, howsoever strong they may be.

Way ahead

  • Courts should not indulge the motivated outrage of litigious complainants. 
  • Superior courts do intervene to quell attempts by those claiming to be offended by some remark or public statements. The lower judiciary should stop acting reflexively on frivolous complaints.
  • Patna High Court should put an end to this attempt to use the judiciary for political ends, and also examine how its supervisory powers can be used to sensitise the magistracy to the constitutional provisions protecting free speech.

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Explained: Pardoning powers of President/Governor

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Pardoning powers of the President and the Governor

Mains level : Read the attached story

  • The President has commuted death sentences to life imprisonment in at least 20 cases over the past nine years, based on the recommendations received from the Ministry of Home Affairs (MHA).

Pardon

  • 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 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.

Pardoning powers in India

  • Under the Constitution of India (Article 72), the President of India can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment.
  • A similar and parallel power vests in the governors of each state under Article 161.

I. President

  1. Article 72 says that the president shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.
  2. The pardoning powers of the Indian President are elucidated in Art 72 of the Indian Constitution. There are five different types of pardoning which are mandated by law.
  • Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
  • Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
  • Reprieve: means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
  • Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
  • Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty year rigorous imprisonment to ten years.

Cases as specified by art. 72

  • in all cases where the punishment or sentence is by a court martial;
  • in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
  • in all cases where the sentence is a sentence of death.

II. Governor

  • Similarly, as per article 161: Governor of a State has the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law.
  • It must be relating to a matter to which the executive power of the state extends.
  • Please note that President can grant pardon to a person awarded death sentence. But a governor of a state does not enjoy this power.

Nature of the Pardoning Power

  • The question is whether this power to grant pardon is absolute or this power of pardon shall be exercised by the President on the advice of Council of Ministers.
  • The pardoning power of the president is not absolute. It is governed by the advice of the Council of Ministers.
  • This has not been discussed by the constitution but is the practical truth.
  • Further, the constitution does not provide for any mechanism to question the legality of decisions of President or governors exercising mercy jurisdiction.
  • But the SC in Epuru Sudhakar case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.
  • The court has earlier held that court has retained the power of judicial review even on a matter which has been vested by the Constitution solely in the Executive.

Some traditions

  • It is important to note that India has a unitary legal system and there is no separate body of state law.
  • All crimes are crimes against the Union of India.
  • Therefore, a convention has developed that the governor’s powers are exercised for only minor offenses.
  • While requests for pardons and reprieves for major offenses and offenses committed in the UTs are deferred to the President.

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Explained: Legal Rights of Deities

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Read the attached story

Mains level : Legal Persons and its wide definition


  • Among the parties in a famous temple suit appeals now being heard by the Supreme Court is the Lord represented by His “next friend”.

God as a juristic person

  • A juristic person, as opposed to a “natural person” (that is, a human being), is an entity whom the law vests with a personality.
  • The Supreme Court has clarified this in the Shiromani Gurdwara Parbandhak Committee vs Som Nath Dass and Others (2000) order.
  • It states that the very words Juristic Person connote recognition of an entity to be in law a person which otherwise it is not.
  • In other words, it is not an individual natural person but an artificially created person which is to be recognised to be in law as such.
  • Gods, corporations, rivers, and animals, have all been treated as juristic persons by courts.

From when did this recognition begin?

  • The treatment of deities as juristic persons started under the British.
  • Temples owned huge land and resources, and British administrators held that the legal owner of the wealth was the deity, with a shebait or manager acting as trustee.
  • In 1887, then Bombay HC held in the Dakor Temple case: “Hindu idol is a juridical subject and the pious idea that it embodies is given the status of a legal person.
  • This was reinforced in the 1921 order in Vidya Varuthi Thirtha vs Balusami Ayyar, where the court said, “under the Hindu law, the image of a deity… (is) a ‘juristic entity’, vested with the capacity of receiving gifts and holding property”.
  • This idea is now established in Indian law.

God: Not always a legal person

  • A juristic entity or person is one in whom the law reposes rights or duties in its own name.
  • A company is a juristic person, who can hold or deal with property in its own name.
  • While God as an abstract concept is not a juristic entity, deities in Hindu law have been conferred personhood, as capable of being bestowed with property, or leading it out or suing to take back possession.
  • Thus, by a legal fiction installed deities at Hindu places of worship have been treated like other real persons for the purpose of law
  • However, not every deity is a legal person. This status is given to an idol only after its public consecration, or pran pratishtha.
  • In Yogendra Nath Naskar vs Commissioner Of Income-Tax (1969), the Supreme Court ruled: “It is not all idols that will qualify for being ‘juristic person’ but only when it is consecrated and installed at a public place for the public at large.”

The rights deities have

  • Apart from owning property, paying taxes, suing, and being sued, what else do deities as ‘legal persons’ do?
  • In the Sabarimala case one of the arguments presented against allowing women of menstruating age entry into the temple was that this would violate the right to privacy of Lord who is eternally celibate.
  • It was argued that deities have property rights, but not fundamental rights or other constitutional rights.
  • This was upheld by Justice D Y Chandrachud in the Sabarimala judgment.

Other than Hinduism

  • A mosque has never been held as a juristic person, because it’s a place where people gather to worship; it is not an object of worship itself. Neither has a church.
  • In Shiromani Gurdwara Parbandhak Committee vs Som Nath Dass and Others (2000), the SC ruled that the Guru Granth Sahib cannot be equated with other sacred books.
  • Guru Granth Sahib is revered like a Guru and is the very heart and spirit of gurudwara.
  • The reverence of Guru Granth on the one hand and other sacred books on the other hand is based on different conceptual faith, belief and application.
  • However, the court clarified that “every Guru Granth Sahib cannot be a juristic person unless it takes juristic role through its installation in a gurudwara or at such other recognised public place.”

Who else holds such legal status?

  • In May, the Punjab and Haryana High Court held that the “entire animal kingdom” has a “distinct legal persona with corresponding rights, duties, and liabilities of a living person”.
  • On March 20, 2017, the Uttarakhand High Court declared that the Ganga and Yamuna would be legally treated as “living people,” and enjoy “all corresponding rights, duties and liabilities of a living person”.
  • The order was stayed by the Supreme Court in July that year because it “raised several legal questions and administrative issues”.

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Explained: SC/ST judgment, in review

Note4Students

From UPSC perspective, the following things are important :

Prelims level : SC/CT Act, Review petition

Mains level : Read the attached story

  • The Supreme Court has recalled its directions in a March 20, 2018 verdict that had effectively diluted provisions of arrest under the SC & ST (Prevention of Atrocities) Act, 1989.
  • This was following a plea by the Centre seeking a review of that judgment.
  • The court accepted that Dalits have suffered for long and negated the basis of last year’s judgment in which the court had commented on false cases under the Act.

Review of a judgment

  • ‘Review’ of a Supreme Court judgment is done by the same Bench.
  • ‘Overruling’ means that the law laid down in one case is overruled in another case.
  • When a higher court on appeal alters the judgment of a lower court, it is called ‘reversal.’
  • Generally, a review is heard in the judge’s chamber, but may be heard in open court in important cases — as in the Sabarimala and Rafale cases, in which no order has been pronounced yet.

Why was the SC/ST Act enacted?

  • Since crimes against SCs and STs are fundamentally hate crimes, the Rajiv Gandhi enacted the Act in 1989.
  • It gave furtherance to the provisions for abolition of untouchability (Article 17) and equality (Articles 14, 15).

Why reviewed now?

  • The review stated that despite various measures to improve the socio-economic conditions of the SCs and STs, they remain vulnerable.
  • They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment.
  • They have, in several brutal incidents, been deprived of their life and property.

Human failings not Caste

  • The Bench reasoned that human failing and not caste is the reason behind the lodging of false criminal complaints.
  • The Supreme Court condemned its own earlier judgment, saying it was against “basic human dignity” to treat all SC/ST community members as “a liar or crook.”
  • Caste of a person cannot be a cause for lodging a false report, the verdict observed.
  • Members of the SCs and STs, due to backwardness, cannot even muster the courage to lodge an FIR, much less, a false one, the judgment noted.

The Subhash Kashinath Mahajan case

  • Mahajan was Director of Technical Education in Maharashtra.
  • Two non-SC officers had made an adverse entry on the character and integrity of a Dalit employee, whom Mahajan in 2011 denied sanction for prosecution against those officers.
  • The denial was challenged on the ground that the state government and not the director was the competent authority.
  • The apex Court held that safeguards against blackmail are necessary as by way of rampant misuse, complaints are largely being filed against public servants with oblique motive for the satisfaction of vested interests.

In what manner had the 2018 judgment diluted provisions for arrest?

ANTICIPATORY BAIL

  • In section 18 of the Act, Parliament had laid down that the provision of anticipatory bail under Section 438 of the CrPC of 1973 will not be available to an accused under the Act.
  • The provision of anticipatory bail was introduced for the first time on the recommendation of 41st Law Commission in 1973.
  • It is a statutory right, not part of the right to life and personal liberty under Article 21 of the Constitution, and thus there is no fundamental right to anticipatory bail.
  • In the 2018 judgment, the Court laid down safeguards, including provisions for anticipatory bail and a “preliminary enquiry” before registering a case under the Act.
  • While review the Bench said Section 18 was enacted to instil a sense of deterrence and relied on Kartar Singh (1994) in which the court had held that denial of anticipatory bail does not violate Article 21.

FIR

  • The court had observed that “liberty of one cannot be sacrificed to protect another”, and the “Atrocities Act cannot be converted into charter for exploitation or oppression by unscrupulous persons or by police for extraneous reasons”.
  • He ordered that neither is an FIR to be immediately registered nor are arrests to be made without a preliminary inquiry by an SSP.
  • An arrest can only be made if there is “credible” information and police officer has “reason to believe” that an offence was committed.
  • In the review judgment, Justice Mishra said public servants already have a remedy in false cases under CrPC Section 482 and can get such FIRs quashed by High Courts.
  • He rejected the need of an SSP’s approval for arrest.

PERMISSION

  • In 2018, the court had said that even if a preliminary inquiry is held and a case registered, arrest is not necessary, and that no public servant is to be arrested without the written permission of the appointing authority.
  • The court extended the benefit to other citizens and said they cannot be arrested without the written permission of the SSP of the district.
  • In review the court said that the decision on arrest is to be taken by the investigating authority, not the appointing authority.

Were other provisions diluted?

  • The court had observed that interpretation of Atrocities Act should promote constitutional values of fraternity and integration of the society.
  • This may require ‘check on false implication of innocent citizens on caste lines’.
  • Observing that the law should not result in caste hatred, the court overlooked the fact that the Act had to be enacted due to caste hatred.
  • The review judgment said that such riders for registering a report are wrong and it would give an advantage to upper castes whose complaints can be registered without any such inquiry.

How frequently do SCs/STs face atrocities?

  • A crime is committed against an SC every 15 minutes. Six SC women are raped every day on an average.
  • Between 2007 and 2017, there was a 66 per cent growth in crimes against SCs.
  • Data from the National Crime Record Bureau, which the 2018 judgment was based on, showed cases of rape of SC women had doubled in 10 years.

Were similar guidelines not issued by the SC in other cases?

  • The Supreme Court can lay down guidelines only in cases of legislative gaps.
  • For instance, it laid down guidelines on sexual harassment, khap panchayats, lynching etc.
  • But where the field is occupied by parliamentary legislation, the judiciary is bound by the text of law.
  • It can, however, examine constitutionality of such a law.
  • The review order observed that the March 2018 guidelines encroached upon the field reserved for Parliament, and therefore recalled these directions.

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[op-ed snap] Striking a blow for investigative credibility

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Criminal Justice System and challenges to investigative agencies

CONTEXT

These are highly contentious times for India’s criminal justice system. With sensational criminal cases, controversy erupts almost every day.

Criminal justice system

  • The judiciary enjoys a certain insularity. It is not required to be overly communicative. Thus it can stay away from direct confrontation with others. 
  • Prosecutors and investigators face an issue of trust. 
  • In the defence team, a few private lawyers hired by influential accused persons enjoy an immunity.
  • In all this, investigators have no mechanism to air their grievances. 
  • The prosecution lawyers and investigating officers are in an unequal battle against the defence. 

Supreme Court judgement

  • A bench of the Supreme Court recently observed that probe agencies such as the Enforcement Directorate and the Central Bureau of Investigation (CBI) needed a free hand to conduct their investigations.
  • Recently certain defence lawyers requested that courts should scrutinise every piece of evidence collected by the agencies before passing any orders, including ones related to the granting of bail.
  • The court believed that investigators should not be pressured to compromise on the confidentiality of evidence they have gathered during the process of data collection.

Changing the nature of criminal investigations

  • In the early 1980s and 1990s, arrests were rare. 
  • Now, given the volume and complexity of investigative processes linked to multi-layered economic crime and pressure from the public and the executive, the pressure that the CBI should produce instant results is telling. 
  • The charge against the CBI is that it has been selective in its targets, pursuing a campaign of a vendetta at the behest of its political masters. 
  • Two issues were flagged in court recently:
    • the right of an accused to get bail
    • the need for custodial interrogation by probe agencies. 
  • Although the maxim that ‘bail is the rule, and jail is an exception’ was held since Justice V.R. Krishna Iyer, the growing volume of crime and the dexterity of offenders have induced a change in judicial thinking. 
  • Courts at all levels now believe that granting bail cannot be a routine and mechanical process and that certain cases deserve an application of mind while ordering bail. 
  • This has led to lengthy hearings before a bail application is disposed of. While the application of an ordinary offender is summarily rejected, the rich and the famous are able to persuade judges to devote several sittings to decide on the bail application.
  • Courts now demand and peruse prosecution documents to satisfy themselves that no injustice has been done to a bail applicant. 
  • Neither the prosecution nor those accused can complain of judicial caprice or arbitrariness in the matter.

Custodial interrogation

  • There is a controversy over the need for custodial interrogation of an accused person. 
  • The complexity of present-day crime and the ease with which the many details of a crime can be hidden enhance the need for the custodial examination. 
  • While courts are convinced of its utility they sparingly grant such custody. 
  • This could also lead to possible misuse in questioning under controlled conditions. 
  • Police custody is a serious responsibility for the investigating officer. Any pressure tactics or attempted physical violence on the person in custody is fraught with serious consequences. 
  • There are reasonable guarantees including accountability to the judiciary for civilised treatment of an accused in police custody.

Conclusion

Criminal law and its contours are evolving. It is easy to criticise and accuse police agencies charged with efficient solving of crime with arbitrariness. The attempt should not be to choke them. There’s a need for allowing them more freedom to be professional without diluting the controls that are already in place.

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Criticizing executive, judiciary and bureaucracy cannot be called sedition: SC Judge

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Sedition Law and issues

  • Justice Deepak Gupta, judge of Supreme Court, opined about the chilling effect caused by sedition law on legitimate criticism on the organs of state.
  • As citizens, Indians have the right to criticize the government, and criticism cannot be construed as sedition, he said, adding that stifling such criticism will make us a police state.

Sedition and Right to dissent

  • Criticism of the executive, the judiciary, the bureaucracy, the armed forces cannot be termed sedition.
  • If we stifle criticism of these institutions, we shall become a police state instead of a democracy.”
  • There is a very important right which is not spelt out in the Constitution… the right of freedom of opinion, the right of freedom of conscience, by themselves, include the most important right — the right to dissent.

Why is dissent important?

  • Every society has its own rules, and over a period of time, when people stick to only age-old rules and conventions, the society degenerates; it doesn’t develop.
  • New thinkers are born when they disagree with well-accepted norms of the society. If everybody follows the well-trodden path, no new paths will be created and no new vistas of the mind will be found.
  • If a person doesn’t ask questions and raise issues questioning age-old systems, no new systems will develop and horizons of the mind will not expand.
  • New thoughts and religious practices have developed only when they have questioned the old.

A right to expression

  • He said that in a secular country such as India, a non-believer, an atheist, an agnostic, ritualistic or a spiritualist person all has the right to expression.
  • When we talk of dissent, it reminds of Justice H R Khanna in the habeas corpus case.
  • That dissent is more important than any decision that may have come before or after it. Today, it is the rule of law.
  • In a case, a five-member bench was adjudicating on the matter of those detained during the Emergency in 1975, and Justice Khanna was the lone dissenter, while the four other judges in the bench allowed unrestricted powers of detention during the Emergency

Judiciary not above criticism

  • The judge emphasized that allowing a climate for free expression of thoughts and ideas without fear of criminal prosecution is essential for growth of civilization.
  • The judiciary is not above criticism. If Judges of the superior courts were to take note of all the contemptuous communications received by them, there would be no work other than the contempt proceedings.
  • Not only should there be criticism but there must be introspection. When we introspect, we will find that many decisions taken by Judiciary need to be corrected.

(Note: All these are personal opinion of the apex court Judge.)

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[op-ed snap] Reforming the Law Commission: Govt should enshrine in law, the composition, tenure, functions and work procedure of the panel

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Strengthening Law commissions

CONTEXT

There are reports that the cabinet will take a call on reconstituting the Law Commission. 

Background

  1. The Law Commission of India is the oldest amongst the national-level parastatal bodies.
  2. It is a legacy of the country’s colonial past. In 1833, British rulers unified the three presidencies and planned to enforce the English common law in “British India”. For this, they constituted many law commissions. 
  3. After the fourth commission completed its work towards the end of 19th century, they did not continue the exercise.
  4. The first commission was set up in 1955 for a three-year term, assumed charge on September 1 that year and vacated office on August 31, three years later. The same pattern was then irrationally adopted as the fixed term for the commission for all time to come.
  5. Each of the later commissions worked for less than three years, leaving their assigned work half way.

Ad Hoc nature of Law commission

  1. It has no fixed composition, no defined eligibility criteria for its chair and members, and no set functions as everything rests on the government’s will. 
  2. The terms of reference are specified afresh each time it is reconstituted as if it were an ad hoc body. 
  3. Three of the other national commissions for the Scheduled Castes, Scheduled Tribes and Backward Classes, are now regulated by the Constitution and there are laws for each of the national commissions for human rights, minorities, women, children and safai karmcharis.
  4. Though the commission’s job requires research-oriented juristic learning, the commission has been a haven for retired judges
  5. The chairpersons of the four pre-independence Law Commissions — C H Cameron, John Romilly, Whitley Stokes and Thomas Macaulay — were eminent jurists, not judges, and so were many of their members. 
  6. Independent India initially maintained the tradition by appointing the distinguished jurist M C Setalvad as the chairman of its first Law Commission. 
  7. The policy was later changed, and with the exception of K V K Sundaram, the commission has always been headed by judges.
  8. Members of the commission are also generally drawn from the judiciary, and the member-secretary is always from the bureaucracy. 
  9. Reports of the commission are generally written individually by members including the chairman and placed before the full commission for discussion and adoption. 
  10. Few of these reports have been on the Hindu and Christian family laws, but none on the Muslim personal law. Mostly because of backlash against an all Hindu commission.

Way ahead

  1. If the commission has to work without regard for extra-legal and political considerations it must have a governing statute defining its powers and responsibilities, and limitations.
  2. It must be placed under a proper parliamentary charter. 
  3. It should be a predominantly jurists’ commission, not a retired judges’ collective.

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[op-ed snap] A law for those who testify

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Witness protection in a criminal justice system

CONTEXT

Maharashtra came out with the Maharashtra Witness and Protection and Security Act 2017. However, the Centre and most other states are yet to act on the directive.

Background

  1. Supreme court gave its assent last year to the Witness Protection Scheme drafted by the Centre.
  2. The scheme was meant to be a measure in force only until the government brought out its own law on the issue.
  3. The objective of the scheme is to ensure the safety of witnesses so that they are able to give a true account of the crime without any fear of violence or criminal recrimination.

Poor implementation

  1. Though the scheme provides for police personnel to be deployed to protect the witness, it is silent on the punishment to be given to those policemen who themselves threaten the witnesses. 
  2. Criminals continue to get support from the police. The shadowy politician-police nexus is so strong that no policeman dares take any action against his ‘master’.
  3. The Witness Protection Scheme calls for more elaborate and stricter laws to be incorporated so that criminals find no loopholes that can be exploited to their advantage.

The sooner the Centre comes up with legislation codifying the protection to be given to witnesses, the better it is for India’s criminal justice system.

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Haryana Administrative Tribunal

Note4Students

From UPSC perspective, the following things are important :

Prelims level : About the tribunal

Mains level : Need for administrative tribunals

  • The Punjab and Haryana High Court Bar Association has suspended work indefinitely since a notification came out on July 24 for setting-up the Haryana Administrative Tribunal.
  • The Tribunal is meant to adjudicate over the service matters of the state employees that earlier would be directly heard by the High Court.

What is Haryana Administrative Tribunal?

  • Following a recommendation from the Haryana government, the Ministry of Personnel, Public Grievances and Pensions on July 24 issued a notification for establishing the Haryana Administrative Tribunal.
  • This tribunal is a quasi-judicial body on the lines of Central Administrative Tribunal for redressal of the grievance of state employees concerning their employment.
  • In the absence of the Tribunal, the employees have no other option but to directly approach the High Court.
  • The government’s decision to establish the Tribunal had been pending since 2015 and is aimed at reducing a large number of pending cases before the High Court and quick disposal of the grievances of employees, as per the state.
  • Tribunal orders can be challenged before the High Court.

Under which law is the Tribunals setup?

  • Article 323-A, which came by way of 42nd constitutional amendment in 1976, enabled the Centre to enact The Administrative Tribunals Act, 1985 for setting-up the Tribunals.
  • These tribunals are set for adjudication over disputes and complaints with respect to recruitment and conditions of service of persons.
  • The Centre under the Act can establish the Tribunal for its own employees and also has the power to establish one for a state after receiving a request from the state government.
  • Two or more states can also agree for a single tribunal. The Tribunal is to be headed by a Chairman or Chairperson – a retired High Court Judge, and a number of Judicial and Administrative Members.
  • The Chairperson can be removed only by the President of India. The Tribunal can also have benches at different locations.

Do any other states have the Tribunal?

  • The Union Government last month also issued another notification – the one abolishing the Himachal Pradesh Administrative Tribunal which had been in existence since 2015.
  • The request for it came from the state cabinet. Established first in 1986, the Himachal Tribunal was earlier also abolished in 2008 but re-established in 2015.
  • When Haryana government took the decision to establish its own Administrative Tribunal, it had also cited the “encouraging” results of the Himachal Tribunal.
  • Kerala, Karnataka, West Bengal and Maharashtra with their own tribunals for service matters.
  • On August 2, Odisha also got abolished its Administrative Tribunal through a notification issued by the Centre.

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Cabinet approves increasing strength of Supreme Court judges from 31 to 34

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Appointment of Supreme Court Judges

Mains level : Read the attached story

  • Against the backdrop of rising cases in the Supreme Court, the Union Cabinet has approved increasing the number of judges in the top court from the present 31 to 34, including the Chief Justice of India.

Judges in Supreme Court

  • At present, the Supreme Court is working with its full sanctioned strength of 31.
  • The Supreme Court (Number of Judges) Act, 1956 was last amended in 2009 to increase the judges’ strength from 25 to 30 (excluding the CJI).
  • The decision of the Cabinet came days after Chief Justice of India Ranjan Gogoi wrote to PM Modi to increase the number of judges in the top court.

Why need more Judges?

  • Due to paucity of judges, the required number of Constitution Benches to decide important cases involving questions of law was not being formed.
  • This rise also aims to expedite disposal of cases to keep pace with the rate of institution.

What are Constitution Benches?

  • Constitution bench is the name given to the benches of the SC which sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution of India or “for the purpose of hearing any reference” made by the President of India under Article 143.
  • It consist of at least five judges of the court.
  • This provision has been mandated by Article 145 (3) of the Constitution of India.
  • The Chief Justice of India has the power to constitute a Constitution Bench and refer cases to it.
  • Constitution benches have decided many of India’s best-known and most important Supreme Court cases, such as A. K. Gopalan v. State of Madras, Kesavananda Bharati v. State of Kerala (basic structure doctrine) and Ashoka Kumar Thakur v. Union of India (OBC reservations) etc.

Timeline: Number of Judges

  • The original Constitution of 1950 had envisaged a Supreme Court with a Chief Justice and seven puisne judges, leaving it to Parliament to increase this number.
  • The Supreme Court (Number of Judges) Act, 1956 originally provided for a maximum of 10 judges (excluding the CJI).
  • This number was increased to 13 by the Supreme Court (Number of Judges) Amendment Act, 1960, and to 17 in 1977.
  • The working strength of the Supreme court was, however, restricted to 15 judges by the Cabinet (excluding the chief Justice of India) till the end of 1979.
  • But the restriction was withdrawn at the request of the Chief Justice of India.
  • In 1986, the strength of the top court was increased to 25, excluding the CJI.
  • Subsequently, the Supreme Court (Number of Judges) Amendment Act, 2009 further augmented the strength of the court from 25 to 30.

Back2Basics

Eligibility of a judge of the Supreme Court

A citizen of India not exceeding 65 years age as per Article 124 of the constitution who has been

  • a judge of one high court or more (continuously), for at least five years, or
  • an advocate there, for at least ten years, or
  • a distinguished jurist, in the opinion of the president, power conferred by clause(2) of article 124 of the Constitution of India
  • is eligible to be recommended for appointment, a judge of the supreme court

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Centre for Research and Planning (CRP)

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Centre for Research and Planning (CRP)

Mains level : Reform measures in Judiciary

  • Nine months after it was set up with an ambitious mandate to reform the judiciary, the Centre for Research and Planning (CRP), the Supreme Court’s in-house think tank, is now virtually disbanded.

Centre for Research and Planning (CRP)

  • The CRP was CJI Gogoi’s brainchild, and setting it up was one of the first decisions he took after assuming office in October 2018.
  • It was intended to improve public confidence in the judiciary that had taken a knocking after four most senior judges took to media to express their discontent.
  • Few Supreme Court judges had held a press conference in January 2018 to raise concerns on the functioning of the court, especially the allocation of cases by then CJI Dipak Misra.

Terms of reference for CRP

  • The CRP was asked to come up with short versions of key judgments without the jargon to connect with ordinary citizens.
  • The idea was mooted after the criticism the court received following the Sabarimala verdict in September 2018, allowing entry of women into the Kerala shrine.
  • The CRP was also tasked with creating a network of leading independent scholars in key domain areas, complementing state and national judicial academies in strengthening the knowledge infrastructure of the judiciary.

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Law Commission

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Law Commission if India

Mains level : Mandate of the Law Commission

  • With the country left without a Law Commission since September 2018, the Law Ministry has initiated the process of setting up the body which gives advice to the government on complex legal issues.
  • The three-year term of the 21st Law Commission ended on August 31 last year. On at least one occasion, the Ministry had moved the proposal to reconstitute the panel.

Law Commission of India

  • It is an executive body established by an order of the Government of India. First law commission of independent India was established post the Independence in 1955.
  • The Cabinet approves reconstitution of the law panel for a period of three years. It is usually headed by a former Supreme Court judge or a former Chief Justice of a High Court.
  • Composition: Chairman, 1 Permanent Member, 1 Member Secretary, 2 Part-time Members, 2 ex-officio
    members. (21 st Law Commission Chairman: Justice BN Chauhan)
  • Tenure: 3 Years
  • Function: Advisory body to the Ministry of Law and Justice for “Legal Reforms in India”
  • Recommendations: NOT binding
  • First Law Commission was established during the British Raj in 1834 by the Charter Act of 1833 under Macaulay.
  • It recommended for the Codifications of the IPC, CrPC etc.

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Analysis of Free Legal Aid Services in India

Note4Students

From UPSC perspective, the following things are important :

Prelims level : NALSA

Mains level : Status of free legal aid in India


Background

  • In 1987, the Legal Services Authorities (LSA) Act was enacted to give free and competent legal services to the poor.
  • The Act paved the way for the constitution of National Legal Service Authority (NALSA) and other legal service institutions at the State, district and taluka level.
  • Free legal services under LSA Act are available to a person belonging to Schedule Tribe and Schedule Caste, woman, child, victim of human trafficking, differently abled person, industrial workman, and person in custody in a protective home and the poor.
  • According to the statistics provided by NALSA, about 8.22 lakh people across India benefited through legal aid services from April 2017 to June 2018.

The unpopular free legal aid: Report

  • A majority of the people who are entitled to the free legal aid system see the service as an option only when they cannot afford a private lawyer.
  • First-of-its-kind pan-India research by National Law University, Delhi (NLUD) has found that people don’t have faith over the services of legal aid counsel (LAC) under the free legal aid services due to a variety of factors.
  • The services offered by LAC are absolutely free. But a majority of potential beneficiaries are disinclined towards the option of availing these services.
  • This is observed in the research report titled ‘Quality of Legal Representation: An Empirical Analysis of Free Legal Aid Services in India’.

Status of Legal system in India

  • Last year, Commonwealth Human Rights Initiative (CHRI) had come out with a report stating that India’s per capita lawyer ratio is better than most countries in the world.
  • There are about 1.8 million lawyers in India which mean there is one lawyer for every 736 people.
  • The same report also stated there are 61,593 panel lawyers in the country, which translates to just one legal aid lawyer per 18,609 population or five legal aid lawyers per 1,00,000 population.
  • Also, 22.6% of the beneficiaries responded that they won’t opt for free legal aid services for the second time.

What most aggrieved sections think

  • The study also found that 60% of women, who were aware of the free legal aid services, chose to opt for private legal practitioner because they could have better control over their lawyer.
  • These women have no faith and confidence over the quality of services offered under the legal aid system, the study said.

Why private lawyers?

  • The beneficiaries opt for free legal aid service due to the dearth of resources to engage a private lawyer.
  • About 75% of beneficiaries opted for free legal aid because they had no means and resources to hire a paid private practitioner.
  • They would never have approached for the legal aid services if they had resources to engage private legal practitioners,” the study found.

Fault lines in LAC

  • The survey found that 56% of LAC spends an average of 1 to 10 hours per week on legal aid cases. On the contrary, around 58% LAC spend on an average of 20 hours and above per week on private cases.
  • Although the services offer by LAC are absolutely free, the ground reality is that around 16.30% of beneficiaries claimed their LAC often demand money before or after every court hearing.
  • Also, around 33% of the judicial officers said complaints were received against LACs for demanding money from beneficiaries.
  • LAC can withdraw from an aided case by submitting a reason to member-secretary. In this scenario, a beneficiary has to go through the painstaking task of retelling their case history to newly allotted LAC.

Problems with beneficiary

  • The trust deficit among the beneficiaries towards the panel lawyers was hard to eradicate.
  • The problem with most of the beneficiaries is that they are illiterate and don’t have the procedural knowledge of the functioning of courts.
  • Hence they end up getting irked after three or four dates. Thereafter, they don’t want to come to court.

NALSA’s views

  • The quality of legal aid is one of the prime focus areas of NALSA in 2019.
  • NALSA was improving the selection process of panel lawyers to ensure selection and empanelment of committed lawyers.
  • After periodic assessments, lawyers can be delisted from the panel.
  • The Structure and Framework of Monitoring Committees have been changed, and now these committees also do the work of mentoring of panel lawyers in legal aided cases.
  • Front offices at the district level are being upgraded to make them one-stop centres for legal aid seekers.

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Vacation Bench of Supreme Court

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Vacation Bench

Mains level : Judiciary and its institutional mechanism

  • Recently Hon’ble Supreme Court has notified its annual summer holiday from May 13, and listed the judges who will occupy the Vacation Benches for hearing urgent matters during this period.

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.

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 hearing of urgent miscellaneous matters and regular hearing matters during the summer vacation for the 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.

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[op-ed snap] Not Justice

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing Much

Mains level : Supreme court upholder of right is falling short of maintaining Justice in its own courtyard.

CONTEXT

CJI. In a report submitted on Monday, the panel has given a clean chit to CJI Gogoi.

Background

Onus on Panel

  • The three-member panel probing charges of sexual harassment against Chief Justice Ranjan Gogoi had a task much broader and more critical than its stated remit.
  • Given that it was investigating allegations levelled against the highest office of the country’s apex court, the panel needed to answer questions that pertained, inevitably, to the integrity of the institution itself.
  • Upon it also lay the onus of instituting procedures that mitigated the unequal power relations in a case where a former junior employee of the court was ranged against the CJI.
  • In a report submitted on Monday, the panel has given a clean chit to CJI Gogoi. It has “found no substance” in the charges.
  • But this denouement — an ex parte report, which will not be made public — raises more questions than it answers.

Proceedings

Complaints regarding Procedure

  • The committee comprising Justices S A Bobde, Indira Banerjee and Indu Malhotra wrapped up the inquiry in sittings over four days, three of which were devoted to questioning the complainant.
  • On the third day, the complainant withdrew from the probe alleging that the panel did not adopt “a procedure that would ensure fairness and equality”.
  • She accused the committee of not informing her about its procedures, denying her legal help, not recording its proceedings and not providing her with a copy of her depositions before it.

Power Asymmetry

  • Each of these four points raises issues of power asymmetry.
  • The committee’s task was, no doubt, complicated by the fact that the SC’s “in-house procedures” do not have provisions to deal with charges against the CJI.
  • But the apex court has, over the years, also interpreted and re-interpreted Articles 14, 15, 19 and 21 of the Constitution to lay down the rights of working women.
  • The probe was a chance to extend such jurisprudence to a situation inside the institution of the court.

Concerns with ex parte investigation

  • The panel’s recourse to an ex-parte investigation is problematic.
  • Aside from the fact that such a probe is against the principles of natural justice..
  • And by not making its report public, the panel has come up short on the requirement of transparency .
  • It has argued that the verdict in Indira Jaising vs Supreme Court of India does not enjoin placing in public “the report of a committee constituted as a part of the In-House Procedure”.
  • But surely a probe into an issue where the institutional propriety of the SC is in question cannot hearken to pre-RTI jurisprudence — which Indira Jaising is.

Conclusion

The panel’s verdict goes against the Court’s tradition of interpreting the law creatively for the sake of upholding and strengthening constitutional morality. The Court has corrected itself in the past. It should do so again.

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Contempt of Court

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Contempt of Court

Mains level : Judiciary and associated issues

Contempt of Court

  • According to the Contempt of Courts Act, 1971, contempt of court can either be civil contempt or criminal contempt.
  • Civil contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.
  • On the other hand, criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which
  1. Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or
  2. Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
  3. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

Penalty for Contempt

  • A contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both.
  • This is provided in case that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.

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[op-ed snap] CJI Sexual Harassment Case: How Fragile Is Judicial Independence?

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing Much

Mains level : Judicial Independence rhetoric should not impede Justice

CONTEXT

Since the infamous Saturday morning emergency hearing in the Supreme Court on an “issue of great public importance”, several legal and political commentators have raised noteworthy concerns over the apparent absence of due process, and the possibility of abuse of the office of the Chief Justice of India.

Wrong Focus

  • Instead, the focus was mainly on how the incident represents an ‘attack’ on the independence of the judiciary. This view was then echoed by the Chairman of the Bar Council of India in a statement, and the Finance Minister on his website.
  • The Finance Minister, in fact, claimed that “a mass intimidation of judges is on”.
  • This approach suffers from two fundamental flaws that command a critical assessmen.

Is it threatening Judicial Independence?

1. Is there a connection?

  • For such an allegation to amount to a threat to judicial independence, there would have to be some connection between the individual and the institution – apart from the fact that the individual happens to be a member of the institution.
  •  The allegations made by the complainant are rather complex, and are seemingly reflected in a series of documents bearing the imprimatur of the Supreme Court administration.
  • Without any detailed inquiry or investigation, it is impossible to dismiss the allegations as necessarily false, and to do so constitutes a violation of due process that the complainant is entitled to.

2.Jeopardising Checks and balances

  • For individuals representing the government to assert that the allegations against the CJI are false – without demanding an impartial inquiry through proper channels – jeopardizes the system of checks and balances.

Questions that should be raised

  • How can we find out if the allegations are false?
  • What if the allegations are not false?
  • Does the victim’s right to access to justice deserve to be ignored owing to possibilities of other false allegations?
  • Can a mechanism can be put in place for an inquiry to be carried out by an independent committee efficiently and without delay?
  • What if an inquiry committee must give preliminary findings before judicial work is taken away from a judge?
  • What are the possible measures that can be instituted to deter politically motivated allegations of sexual harassment?

Perceived Fragility of ‘Judicial Independence

  • This view of the fragility of judicial independence is now rather familiar.
  • RTI case – Earlier this month, in the case concerning whether the judiciary’s decision on judicial appointments should be subject to the Right to Information Act, the government argued that making the judiciary amenable to the RTI Act would destroy “judicial independence”, without explaining how lack of transparency is a necessary facet of the independence of the judiciary.
  • Contempt of court Case –Similarly, in contempt of court proceedings, it is often asserted that criticism of judgments can compromise confidence in the judicial system, and therefore interfere with the “due administration of justice.”

Problems With Judicial Independence Recourse

  • Non- elected – It is important to remember that the judiciary consists of non-elected individuals.
  • Trust of people –Its power as an institution – in terms of issues of governance – has been amassed over time, and is predicated on the trust of the people.
  • Transparency –Judicial decisions on the importance and need for openness and transparency ought to be applied with equal – if not greater force – to the judiciary.

Way Forward

  • It is not enough to assert that judicial independence will be at risk whenever any matter related to the judiciary is sought to be debated. Instead, mechanisms must be evolved to ensure due process to both parties, where protecting judicial independence is one of the factors involved.
  • Thus, any committee that undertakes an inquiry into the allegations must not let the question of judicial independence eclipse the inquiry.

 

 

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Explained: What happens when judges face allegations?

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Grounds for removal of SC Judges

Mains level : Grounds for removal of SC Judges

Background

  • Recently allegations of sexual harassment were made by a former employee of the Supreme Court against the CJI.
  • However it was later claimed by a litigant that he was offered to “frame” the CJI.
  • While judges indeed require powerful protection against motivated accusations, due process demands that an expeditious, thorough, fair and impartial probe is carried out in the matter.
  • The extraordinary developments at the country’s highest seat of justice offer an opportunity to revisit some larger questions around its accountability.

The question of ‘good behaviour’

  • Constitution protects judges against the will of the masses, of Parliament, and of the all-powerful executive.
  • A judge of the SC cannot be removed except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session.
  • Such removal can be initiated on the ground of proved misbehaviour or incapacity.

The question of ‘good behaviour’

  • The Constitution does not define ‘misbehavior’ and ‘incapacity’.
  • The Judges (Inquiry) Bill, 2006 sought to establish a National Judicial Council to inquire into allegations of incapacity or misbehavior of judges of the HC and SC.
  • It defined misbehavior as willful or persistent conduct which brings dishonour or disrepute to the judiciary; or willful or persistent failure to perform the duties of a judge; or wilful abuse of judicial office, corruption, lack of integrity; or committing an offence involving moral turpitude.
  • The Judicial Standards and Accountability Bill, 2010, tried to lay down enforceable standards of conduct for judges.
  • It proposed to widen the definition of ‘misbehaviour’ by adding “corruption or lack of integrity which includes delivering judgments for collateral or extraneous reasons, making demands for consideration in cash or kind”, or “any other action… which has the effect of subverting the administration of justice”.
  • Failure to declare assets and liabilities, or wilfully giving false information was also included within the definition of ‘misbehaviour’.

No single definition yet on ‘misbehaviour’

  • In C Ravichandran Iyer vs Justice A M Bhattacharjee & Ors (1995), the Supreme Court said ‘misbehaviour’ could not have a straitjacketed definition.
  • But if the conduct of a judge leads to the credibility of the judiciary being called into question, it should be considered misbehaviour.
  • Misconduct prior to assuming office is not exempt — in 2009, Rajya Sabha passed an impeachment motion against Justice Soumitra Sen of Calcutta High Court for allegedly misappropriating funds several years before he became a judge.

What should be the standard of proof for ‘misbehaviour’?

  • While rejecting the Opposition’s notice for impeachment of CJI, RS chairman cited the “lack of substantial merit”, and said the charges had not been proved beyond reasonable doubt.
  • But impeachment is not a criminal trial.
  • In all civil matters, the standard of proof is the “preponderance of probabilities”.
  • In Australia and South Africa, this is the standard of proof in the impeachment process of judges.
  • India does not currently have a statutory mechanism to examine the misconduct of judges, and short of the complex process of impeachment, there is no mechanism available to make judges accountable.

Allegations against judges

  • While no judge has so far been removed by impeachment, several have faced allegations of corruption, and a couple of them of sexual harassment as well.
  • An allegation of corruption or sexual harassment, if proved, ought to count as misbehaviour or misconduct.

Addressing Sexual harassment at Courts

  • In 1997, the Supreme Court noted that “the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places”, and laid down the ‘Vishakha Guidelines’.
  • Sixteen years later, Parliament enacted The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
  • The Supreme Court has a Gender Sensitization and Internal Complaints Committee headed by a woman judge, with a majority of woman members.
  • The committee has a laid-down procedure for dealing with complaints of sexual harassment on the premises of the court.
  • But it has no power to deal with complaints against the CJI or judges. In respect of misconduct by judges, the in-house process can be initiated only by the CJI.
  • The Regulations are silent on a situation where the allegation is against the CJI himself.

Accountability must persist with conscience

  • In K Veeraswami vs Union Of India And Others (1991) the Supreme Court ruled that in case of an allegation of corruption against a judge of the Supreme Court, the President would order an investigation in consultation with the CJI.
  • And, if the allegation is against the CJI himself, the President would consult other judges and act on their advice.
  • Prior to this judgment, the Prevention of Corruption Act was applicable only to public servants.
  • Justice K Jagannatha Shetty wrote: “The judiciary has no power of the purse or the sword. It survives only by public confidence.
  • The judge whose character is clouded and whose standards of morality and rectitude are in doubt may not have judicial independence and may not command the confidence of the public.
  • He must voluntarily withdraw from the judicial work and administration.
  • Veeraswami was only about allegations of corruption, but it is being followed for all allegations, including the commission of crimes against judges of constitutional courts.

No man is above the Law

  • The rule of law demands judicial accountability. Accountability makes the exercise of power more efficient and effective.
  • The British constitutional theorist A V Dicey wrote that “no man is above the law [and] every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”.
  • Legal equality is the cardinal principle of the rule of law, and everyone including judges, must respect it.

Should CJI undergo trial?

  • To place judicial performance beyond scrutiny would be myopic, as liberty without accountability is freedom of the fool.
  • Power without responsibility is the anti-thesis of constitutionalism. Accountability of public officials, including judges, is the very essence of a mature democracy.

Way Forward

  • Judicial accountability promotes at least three discrete values: the rule of law, public confidence in the judiciary, and institutional responsibility.
  • Both judicial independence and judicial accountability are purposive devices designed to serve greater constitutional objectives.
  • Though the independence of the judiciary is a part of the basic structure of the Constitution, it is not an end in itself.
  • In fact, it is an instrumental value defined by the purposes it serves.

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Judicial Reforms

[op-ed snap]Ensuring access to justice

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Basic knowledge of the issues in Judiciary

Mains level : The news-card analyses the issues relating to the single bench of Supreme Court and lawyers fooling people and how to correct this malpractice.

CONTEXT

The Supreme Court should reconsider setting up Benches in different States in keeping with the recommendations of the Law Commissions (125th Report and 229th Report).

Background

  • At an informal meeting, all of the then sitting judges of the Supreme Court advised the then Chief Justice of India to decide against the request of the then Central government to sit in other places in the country under Article 130 of the Constitution.
  • The reason judges decided against it was because we felt that the authority of the Supreme Court would get diluted.

Problem with this reasoning

  • Many High Courts in this country have different Benches for meting out justice without ‘justice’ being ‘diluted’.
  • For example, the Bombay High Court has four Benches — in Mumbai, Aurangabad, Nagpur and Panaji (Goa) — and the quality of its decisions or status have certainly not been diluted thereby.

The logic behind the number of benches

  • The number of Benches depends on the size of the State,
  • the idea being to facilitate easier access to justice.

Consequences of single Bench

1.Quality Of Lawyers

  • First, the Supreme Court sitting only in Delhi has resulted in excellent lawyers from other High Courts not appearing before the Supreme Court, possibly because it casts too large a monetary burden on their clients, many of whom are impoverished.
  • Second, all lawyers, whatever their calibre or competence, who happen to be in Delhi now appear in the Supreme Court.
  • Some of the good lawyers who were able to leave lucrative practices in the High Courts have settled down in Delhi, but they have established a monopoly, and, as a result, charge unconscionable fees even from charitable concerns — sometimes even when they do not appear at the hearing.
  • This is also true of litigating lawyers at all levels of the judicial system.

2.Reducing to District Court Level

  • The third fallout of the failure to act under Article 130 is that the Supreme Court in Delhi has been flooded with work and been reduced to a District Court instead of a Court of Final Appeal and Constitutional Court as envisaged under the Constitution.

Lawyers fooling people

  • Some of the lawyers specialising in victim compensation cases do not charge any fees for their services and render services free of cost.
  • They generally obtain a blank cheque from the victim which is filled in after credit of the compensation to the bank account of the victim.
  • Some of the lawyers specialising in victim compensation cases thus take huge money as a percentage of compensation amount awarded towards victim compensation.
  • This is illegal, being a champertous agreement.
  • Incidentally, according to a study carried out by a research organisation, Vidhi, in the Delhi High Court, more than 70% of the delays in the disposal of cases are attributable to lawyers, a major reason being sometimes unjust pleas for adjournments.

Way Forward

  • To hound out the corrupt lawyers from the system at all levels so that justice may be truly rendered to the public.
  • First, the Supreme Court should reconsider setting up Benches in different States in keeping with the recommendations of the Law Commissions (125th Report and 229th Report).
  • Second, the Bar Council of India should exercise its powers under the Advocates Act, 1961 more effectively.
  • If not, the disciplinary jurisdiction must be returned to the judiciary as was the position prior to the Advocates Act, 1961 by repealing the 1961 Act.
  • Third, lawyers should be made irrelevant by referring more cases to trained mediators, as the Supreme Court has done in the Ayodhya dispute.

 

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Right to Self-Defence

Note4students

Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From the UPSC perspective, the following things are important:

Prelims level: Right to Self-Defence

Mains level: Expanded scope of the aforesaid right


News

  • The right to self-defence extends not only to one’s own body but to protect the person and property of another; the Supreme Court has interpreted the provisions of the Indian Penal Code (IPC).
  • The court acquitted a forest ranger, who was jailed for shooting an alleged sandalwood smuggler in 1988.

Key points of SC ruling

  • The court observed that the right of private defence extends not only to “the defence of one’s own body against any offence affecting the human body but also to defend the body of any other person.
  • The right also embraces the protection of property, whether one’s own or another person’s, against certain specified offences, namely, theft, robbery, mischief and criminal trespass.
  • The court explained that the right does not arise if there is time to have recourse to the protection of the public authorities. Nor does it extend to the infliction of more harm than is necessary.
  • When death is caused, the person exercising the right of self-defence must be under reasonable apprehension of death, or grievous hurt, to himself or to those whom he is protecting, the court explained.

Right to Self-defence

  • Sections 96 to 106 of the IPC deals with the right to private defence.
  • It is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence.
  • A person who faces imminent and reasonable danger of losing his life or limb may in an exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.
  • It is enough if the accused apprehends that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised, the court ruled.

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Govt.’s prerogative to frame schemes: SC

Note4students

Mains Paper 2: Polity | Separation of powers between various organs

From UPSC perspective, the following things are important:

Prelims level: Art.32 vs Art.226

Mains level: Writ Jurisdiction


News

  • It is the sole prerogative of the government to frame schemes and courts should stay out of governance, the Supreme Court has said in a judgment.
  • A Bench led by Justice A.M. Sapre criticised the Uttarakhand High Court for framing a scheme to regularize hundreds of casual workers engaged by the Border Roads Organisation (BRO) in the construction of roads for Char Dham Yatra pilgrimage.

Courts can only direct

  • The High Court failed to see that it is not the function of the courts to frame any scheme but it is the sole prerogative of the government to do it.
  • All that the High Court, in exercise of its extraordinary power under Article 226 of the Constitution, can do is to direct the government to consider framing an appropriate scheme.
  • Such directions to the government to consider framing a scheme should be with regard to the facts and circumstances of each case.
  • It is only in exceptional cases when the court considers it proper, should it issue appropriate mandatory directions, the Supreme Court held.
  • Instead, in the present case, a single judge of the High Court framed a scheme itself to regularize the services of the casual labourers and granted the benefits similar to those of regular employees under the labour law.

To read more about the Writ Jurisdiction, navigate to the page:

Polity Titbits: Functions/powers of Judiciary

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Mediation in Ayodhya dispute

Note4students

Mains Paper 2: Polity | Separation of powers between various organs dispute redressal mechanisms and institutions.

From UPSC perspective, the following things are important:

Prelims level: Legal provisions mentioned in the newscard

Mains level: Arbitration mechanism in India – pros, cons, challenges and way forward


News

  • A Constitution Bench of the Supreme Court has referred the Ayodhya dispute for mediation in a bid to heal minds and hearts.
  • The mediation would start in a week in Faizabad district of Uttar Pradesh of which the disputed area is a part  with the process conducted in-camera.

Legal provisions for Mediation

  1. Under Section 89 of the Civil Procedure Code, judges must ensure that all avenues to resolve a dispute outside the Court have been exhausted.
  2. The Section reads: Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations.
  3. After receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for:
  • Arbitration (a process by which parties select an independent person, who renders a decision regarding the case)
  • Conciliation (it attempts to make parties come to an agreement, about the problem at hand)
  • Judicial settlement including settlement through Lok Adalat or
  • Mediation

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[op-ed snap] Not without an explanation: when judges recuse themselves

Note4students

Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From the UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: Judges Recusing themselves from hearing cases must give their reasons in writing for recusing themselves from specific cases.


NEWS

CONTEXT

Recently 3 Judges Recused themselves from hearing the case challenging the appointment of M. Nageswara Rao as interim director of the Central Bureau of Investigation.

Previous  cases of recusals

  • Justice U.U. Lalit recused himself from hearing the dispute over land in Ayodhya after senior advocate Rajeev Dhavan pointed out that the judge had appeared for former Uttar Pradesh Chief Minister Kalyan Singh in a related contest.
  • Two judges of the Gujarat High Court withdrew from a set of controversial cases by merely saying, “not before me.”

Problem with such recusals

  • None of the judges recorded their reasons in writing, allowing, in the process, plenty of scope for conjecture and surmise.
  • Not having a written order specifically justifying the recusal, it’s difficult to tell whether the disqualification was really required.
  • An unwarranted recusal, much like a failure to recuse when faced with genuine conflicts of interest, damage the rule of law.
  • To withdraw from a case merely because a party suggests that a judge does so impair judicial fairness.
  • It allows parties to cherry-pick a bench of their choice.

Obligations of Judiciary

  • In taking the oath of office, judges, both of the Supreme Court and of the high courts, promise to perform their duties, to deliver justice, “without fear or favor, affection or ill-will”.

Formulating Rules

  • There are no definite rules on recusals by Judges.
  • Justice J. Chelameswar in his opinion in Supreme Court Advocates-on-Record Association v. Union of India (2015) held that “Where a judge has a pecuniary interest, no further inquiry as to whether there was a ‘real danger’ or ‘reasonable suspicion’ of bias is required to be undertaken,”
  • “But in other cases, such an inquiry is required, and the relevant test is the ‘real danger’ test.”
  • The test does provide a plausible solution, so long as judges make their choices by reducing their reasons to writing.
  • For when judges choose without a rational motive, without expressing their decisions in writing, they hurt the very idea of judicial rectitude.

Way Forward

  • Ultimately, a mistaken case of recusal can prove just as destructive to rule of law as those cases where a judge refuses a recusal despite the existence of bias.
  • Recusals to be used as a tool to manoeuvre justice, as a means to picking benches of a party’s choice, and as an instrument to evade judicial work.
  • As the Constitutional Court of South Africa held, in 1999, “the nature of the judicial function involves the performance of difficult and at times unpleasant tasks,” and to that end, judicial officers “must resist all manner of pressure, regardless of where it comes from.
  • This is the constitutional duty common to all judicial officers. If they deviate, the independence of the judiciary would be undermined, and in turn, the Constitution itself.”

 

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[op-ed snap] All is still not well in court

Note4Students

Mains Paper 2: Constitution | Structure, organization and functioning of the Executive and the Judiciary Ministries and Departments of the Government; pressure groups and formal/informal associations and their role in the Polity.

From UPSC perspective, the following things are important:

Prelims level: Basic knowledge of the issues in Judiciary.

Mains level: The news-card analyses the issues relating to the independence of the judiciary, transparency and accountability in the institution, in a brief manner.


Context

  • A year ago, four judges of the Supreme Court of India called an unprecedented press conference and posed troubling questions relating to the independence of the judiciary, transparency and accountability in the institution and so on.

Recent issues in Judiciary

  1. The idea of the CJI as the “master of the roster”
  • The previous CJI was criticised by many for the manner in which cases were allocated to judges and for selectively choosing the benches that would hear cases of public importance.
  • In democratic countries around the world, notably in the UK, Canada and Australia, the allocation of work and the selection of benches is a consultative process, and necessarily involves a culture of trust.
  • Alternatively, there are clear and defined rules in this regard, as, for example, in the European Court of Human Rights and the European Court of Justice.
  • It is not acceptable for the chief justice to have unbridled power.
  • Even in high courts in India, where a chief justice may have official roles such as presiding over administrative meetings, at no point is the chief justice considered or made to believe that he/she is superior to other judges in the court.
  • Unfortunately, the trend of the CJI assuming the role of master of the roster, with unbridled and unrestricted power, continues even under the present CJI, which may have disturbing implications for the dispensation of justice in our country.
  • Urgent reforms in this regard are necessary.

2. How appointments to and transfers within the higher judiciary continue to be made

  • Every time a new cohort of judges is announced for selection, a new set of problems emerges.
  • Two incidents over the past month have been particularly distressing.
  • One relates to a recent proposal to transfer a sitting judge of the Delhi High Court, whose decisions have been attacked by those within or close to the present Union government.
  • Another case is the inexplicable reversal of a decision of the collegium to elevate two high court chief justices, both well-regarded as fine judges, to the Supreme Court.
  • Equally problematic is the overwhelming silence of the government.
  • On an earlier occasion, the same government had staunchly defended the seniority convention in judicial appointments.

Not enough attention is being paid to the judiciary as an institution

  • Ideally, in any democratic set-up, we need the best individuals running the judiciary.
  • One important criterion for selecting judges is merit.
  • But it has been seen, many brilliant judges are overlooked.
  • The appointments of judges on grounds other than merit can be self-perpetuating.
  • Many such appointees will become members of the the collegium and may make the same kinds of choices their seniors made.
  • Short-term decisions to appoint certain individuals affect the long-term condition of the judiciary.

3. Recent fascination of the Supreme Court for the “sealed cover”

  • The recent fascination of the Supreme Court for the “sealed cover” as a means of receiving information about cases, having used it in three highly-documented litigations in the past few months, is completely against the idea of open, transparent justice.
  • Unfortunately, our judiciary is not only opaque in its own workings but is also becoming partial to opacity in its public function, as an arbiter of public disputes.
  • Jurisprudence clearly shows that such secretive information should be resorted to only in exceptional cases.
  • But here, it is being asked for in an ad hoc manner without any clear or rational reason.

4. Post-retirement appointments.

  • Such appointments really compromise the independence of the judiciary.
  • They raise potential conflicts of interest, if not in reality, certainly in matters of perception.
  • Ideally, there should be a policy decision to introduce a cooling-off period after retirement before taking up new appointments.
  • Or such appointments should be made by a neutral body which is free from executive influence.
  • In any case, such offers of appointments should neither be made nor considered when a judge is still in office.

5. Appeal made to the Supreme Court by itself against the order of the Delhi High Court

  • The fifth issue is that of the appeal made to the Supreme Court by itself against the order of the Delhi High Court on the applicability of the Right to Information Act, 2005, to the judiciary.
  • The Delhi High Court judgment has been stayed, and the case has been languishing in the court for a decade now.
  • Closure on this account is more urgently needed than ever, especially in the context of issues of transparency in the judiciary.

Conclusion

  • The 2018 press conference gave a flicker of hope that maybe things will turn around soon.
  • However, the issues relating to the independence of the judiciary, transparency and lack of accountability in the institution still remain a pressing concern.
  • Urgent reforms are necessary in this regard.

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Supreme Court may curb advocates from speaking on cases

Note4students

Mains Paper 3: Polity | Structure, organization and functioning of the Executive and the Judiciary Ministries

From UPSC perspective, the following things are important:

Prelims level: Not Much

Mains level: Various aspects of the contempt of court


News

Contempt Charges for Public Proclamation

  1. The Supreme Court has agreed to examine the possibility of imposing curbs on advocates airing their views in the media about pending cases and the judges handling them.
  2. The apex court was hearing a plea on contempt petitions filed by the government and the Attorney General of India against a famous civil rights lawyer.
  3. The lawyer’s tweets willfully and deliberately” made a false statement in a case pending in court.

Freedom carries with it responsibility

  1. The SC Bench agreed that though the flash of cameras and media attention may seem irresistible to some, a line needed to be firmly drawn.
  2. Observing that “freedom carries with it a responsibility”, it noted that some lawyers even used air time to attack judges, whose code of conduct did not allow them to go public.
  3. The bench also observed that some lawyers rushed to the media as soon as their petition was filed.

Damage to the institution

  1. It can be often sees just after a judgement is pronounced it is publicly proclaimed that it is a black day, bringing disrepute to the institution.
  2. When a matter is sub judice, the lawyers are expected to maintain expected to maintain the decorum of the court and should avoid going public and being part of media and TV debate.
  3. The attack on judicial proceedings in a brazen, willful and malicious manner would tend to shake the very foundation of the justice delivery system.

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[op-ed snap] Legitimacy of the basic structure

Note4students

Mains Paper 2: Constitution| Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

From UPSC perspective, the following things are important:

Prelims level: Basic knowledge of the basic structure doctrine.

Mains level: The news-card analyses the legitimacy of the basic structure doctrine vis-à-vis the Indian Constitution, in a brief manner.


Context

  • It has now been more than 45 years since the Supreme Court ruled in Kesavananda Bharati v. State of Kerala that Parliament’s power to amend the Constitution was not unlimited, that the Constitution’s basic structure was infrangible.
  • However, there have been grumblings over the rule’s legitimacy in certain quarters in response to challenges made to the recently introduced 103rd Constitutional Amendment, which provides for reservations based on economic criteria in government jobs and education.

Prevailing criticism

  • The common criticism is that the doctrine has no basis in the Constitution’s language.
  • It is argued that the phrase “basic structure”, finds no mention anywhere in the Constitution.
  • Its detractors also believe the doctrine accords the judiciary a power to impose its philosophy over a democratically formed government, resulting in a “tyranny of the unelected”.

Basic structure doctrine is legally legitimate

  • Some of this censure is a result of the Supreme Court’s interpretation of what the Constitution’s basic structure might be.
  • But the doctrine cannot be rejected altogether only because the judiciary sometimes botches its use.
  • For not only is the basic structure legally legitimate, in that it is deeply rooted in the Constitution’s text and history, but it also possesses substantial moral value, in that it strengthens democracy by limiting the power of a majoritarian government to undermine the Constitution’s central ideals.

Background

  • Ever since the Constitution was first amended in 1951, the true extent of Parliament’s power to amend the document has been acutely contested.
  • In 1960s, the Parliament had introduced the contentious 17th Constitutional Amendment.
  • Through this, among other things, a number of land reform legislations had been placed into the Constitution’s Ninth Schedule.
  • This meant that those laws, even when discriminatory, were immunised from challenge.
  • However, according to experts, Parliament was a creature of the Constitution and therefore it could not make changes that had the effect of overthrowing or obliterating the Constitution itself.

Questions to ponder

  • According to some experts, India hadn’t yet been confronted with any extreme constitutional amendment.
  • But jurists ought to be mindful of the potential consequences inherent in granting Parliament boundless power to change the Constitution.
  • How might we react, if the legislature were to amend Article 1, for example, by dividing India into two.
  • Could a constitutional amendment abolish Article 21 removing the guarantee of a right to life?
  • Or could Parliament use its power to abolish the Constitution and reintroduce the rule of a Moghul emperor or of the Crown of England?

Interpreting ‘amendment’

  • In Kesavananda Bharati, it was this formulation that shaped Justice H.R. Khanna’s opinion.
  • According to him, any amending body organized within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its Constitutional authority.
  • Yet, the limitation wasn’t as much implicit from a reading of the Constitution as a whole as it was evident from the very meaning of the word “amendment”.
  • According to him, what could emerge out of an amendment was only an altered form of the existing Constitution and not an altogether new and radical Constitution.

This interpretation has shown some depth for at least two reasons

(a) it represents a careful reading of the text of Article 368, and

(b) it delivers an attractive understanding of the moral principles that anchor the Constitution.

  • Article 368 grants Parliament the power to amend the Constitution, making it clear that on the exercise of that power “the Constitution shall stand amended”.
  • Therefore, if what has to remain after an amendment is “the Constitution”, naturally a change made under Article 368 cannot create a new constitution.
  • Such a construal is also supported by the literal meaning of the word “amendment”, which is defined as “a minor change or addition designed to improve a text”.
  • Hence, for an amendment to be valid, the constitution that remains standing after such a change must be the Constitution of India.
  • It must continue to possess, in its essence, those features that were foundational to it even at its conception.

Conclusion

  • Therefore, on any reasonable analysis it ought to be clear that the basic structure doctrine is not only grounded in the Constitution’s text and history, but that it also performs an important democratic role in ensuring that majoritarian governments do not destroy the Constitution’s essential character.
  • Constitutions are not like ordinary laws. Interpreting one is always likely to be an exercise fraught with controversy.
  • But such is the nature of our political design that the court, as an independent body, is tasked with the role of acting as the Constitution’s final interpreter.
  • The basic structure doctrine might be derived from the abstract but it does not mean it doesn’t exist within the Constitution.

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[op-ed snap] Dancing around the Supreme Court

Note4students

Mains Paper 2: Polity| Structure, organization and functioning of the Executive and the Judiciary Ministries and Departments of the Government; pressure groups and formal/informal associations and their role in the Polity.

From UPSC perspective, the following things are important:

Prelims level: Nothing as such.

Mains level: The news-card analyses the recent SC judgement of statutory provisions and rules governing Maharashtra’s dance bars, in a brief manner.


Context

  • Recently, the Supreme Court has struck down several statutory provisions and rules governing Maharashtra’s dance bars.

Background

  • In 2005, the Maharashtra government imposed a ban on dance performances in bars, with the exception of hotels rated three stars and above.
  • The public rationale offered was that these performances were obscene, morally corrupt, and promoted prostitution.
  • Dance performance licenses were cancelled with immediate effect, prompting affected parties to file petitions in the Bombay High Court.
  • The High Court held against the government, resulting in an appeal to the Supreme Court.

Supreme Court’s 2013 ruling

  • The Supreme Court affirmed the High Court’s decision in July 2013, pursuing two lines of reasoning.
  • One, the government could not discriminate between luxury hotels and other establishments seeking licenses for dance performances.
  • Two, the ban had proven to be counterproductive, resulting in the unemployment of over 75,000 women, many of whom were forced by circumstances to engage in prostitution.

Government’s response

  • Rather than implementing the Supreme Court’s decision, the government imposed an outright ban on all dance performances, whether in street bars or upmarket hotels.
  • Although the government’s response addressed the court’s first concern, it failed to address the second.
  • This led to fresh proceedings in the Supreme Court.

Subsequent SC ruling and Govt response

  • While the court saw through the government’s attempt to circumvent its decision, it left room for the government to prohibit obscene dances with a view to protecting the dignity of the dancers.
  • This time the government’s response was more sophisticated and took cues from the Supreme Court’s decision.
  • Rather than seeking to impose a ban on dance performances altogether, it only did so to the extent that these performances were obscene or overtly sexual.
  • However, it imposed a number of other conditions on establishments seeking a license for such performances.

Conditions imposed by the govt to seek licence

  • Applicants were required to “possess a good character” with no criminal antecedents.
  • The establishment could not be within one kilometre of an educational or religious institution.
  • A CCTV camera would need to be fitted at the entrance.
  • Customers could not be permitted to throw coins or currency notes on the dancers, but could add tips to the bill.
  • The permit room (where alcohol was served) and the dance room would need to be separated by a partition.
  • The stage could not be smaller than a prescribed size.
  • Some of these conditions were challenged in the Supreme Court on the basis that they were far too onerous.

SC recent ruling

  • On January 17, the court upheld a few of these conditions, but struck down others.
  • For example, it noted that the CCTV requirement violated the right to privacy of the dancers and the patrons,
  • the “good character” requirement was vague,
  • the partition between the permit room and the dance room was unjustified, and
  • the one kilometre distance requirement was impractical.
  • However, the court found revealing that amongst the dozens of applications filed since the new rules were put in place, not a single one had been approved by the government.
  • The court therefore saw the government’s most recent response as a ban on dance bars masquerading as an attempt to regulate them.

Institutional interaction between governments and the courts

  • These developments yield insights on the institutional interaction between governments and the courts.
  • Through each iteration of this case, the Maharashtra government has responded more swiftly to judicial decisions than the Supreme Court has to the government’s attempts to sidestep them.
  • The final judicial decision in the first round took just short of eight years, while the government’s response took about 11 months.
  • In the second round, the court took a year and three months to make its decision; the government responded in six months.
  • In the third round, the court has taken just short of three years. The government’s response time is to be seen.

Reasons for disparity

  • A number of structural reasons may account for this disparity.
  • Despite heavy caseloads, courts must provide an opportunity for a fair hearing, deliberate, and set out reasons for their decisions.
  • Courts will also typically not consider cases unilaterally, but are dependent on parties to bring proceedings in search of a remedy.
  • Separately, the ban on dance bars has also received a disconcerting level of cross-party political support in Maharashtra, despite the regime changes since 2005.
  • This has meant that legislation has often been enacted unopposed, without any meaningful discussion on the floor of the House.
  • The amendments of 2014, for example, were approved by the Maharashtra Cabinet and sailed through the state legislature within minutes on the following day.

Significant delay on the part of Courts

  • The practical implication of the government being more nimble than the courts is that even when government responses are imperfect, the court produces significant delays.
  • This case outlines the vulnerability of Supreme Court, especially when it depends on the government to comply with its decisions in some positive way, such as by issuing dance bar licenses.
  • Even when the courts exercise the putatively “negative” function of striking down legislation or rules, the level of compliance with their decisions often lies in the hands of the executive.

Existing remedial landscape

  • These developments should also lead courts to introspect about the existing remedial landscape in cases where legislation is challenged.
  • The Supreme Court often deploys the writ of continuing mandamus (issuing a series of interim orders over a period of time to monitor compliance with its decisions) in public interest litigation cases that test the limits of its jurisdiction.
  • It has chosen not to adopt that enforcement strategy in this case, which falls squarely within the four corners of its jurisdiction.
  • While the court cannot direct the enactment of legislation, it can monitor compliance with an order to issue licenses to qualified applicants.

Conclusion

  • A further response from the Maharashtra government now seems inevitable.
  • The court struck down the one kilometre distance requirement, but did not say that any distance requirement would be invalid.
  • While unconstitutional in its present form, it noted that the “good character” requirement could be defined more precisely.
  • These are only two among the many options that are now available to the government in responding to the court’s decision.
  • The court concluded its judgment with the hope that applications for licenses would “now be considered more objectively and with an open mind”.

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[op-ed snap] Slogans, critical of govt, are not anti-national and do not amount to sedition

Note4students

Mains Paper 3: Polity | Structure, organization and functioning of the Executive and the Judiciary Ministries

From UPSC perspective, the following things are important:

Prelims level: Basics aspects of sedition law in India.

Mains level: The news-card analyses the issues of sedition law in India, in a brief manner.


Context

  • Recently, sedition charges are filed against an ex-president of the JNU Student’s Union and former students for allegedly “raising and supporting anti-national slogans”.

What is sedition, enacted by Section 124-A of the IPC?

  • According to the Privy Council, it meant any statement that caused “disaffection”, namely, exciting in others certain bad feelings towards the government, even though there was no element of incitement to violence or rebellion.

Constituent Assembly debates on the subject of sedition

  • In the Draft Constitution, one of the heads of restrictions proposed on freedom of speech and expression was “sedition”.
  • In the heyday of British colonialism, the sedition law was frequently invoked to crush the freedom movement and to incarcerate prominent nationalist leaders like Bal Gangadhar Tilak, Gandhiji, Jawaharlal Nehru and others. K M Munshi opposed the inclusion of “sedition” as a head of restriction and moved an amendment for its deletion.
  • In the course of the debates, Munshi urged that “now that we have a democratic government, a line must be drawn between criticism of government which should be welcome and incitement to violence which would undermine security or order on which civilised life is based.
  • As a matter of fact the essence of democracy is criticism of government.
  • The party system, which necessarily involves advocacy for the replacement of one government by another is its only bulwark; the advocacy of a different system of government should be welcome because that gives vitality to democracy.”
  • The founding fathers agreed with Munshi and deliberately omitted “sedition” as one of the permissible grounds of restriction on freedom of speech and expression under Article 19(2).
  • However, Sedition remained as a criminal offence in the IPC and provides inter alia for a sentence of life imprisonment and fine upon conviction.

 How did courts in India construe ‘sedition’?

  • The Federal Court of India presided over by the distinguished chief justice, Maurice Gwyer, ruled that the sedition law is not to be invoked “to minister to the wounded vanity of government .
  • The acts or words complained of must either incite disorder or must be such as to satisfy reasonable men that is their intention or tendency”.

I.Kedarnath vs. State of Bihar

  • Supreme Court in its landmark decision pronounced in 1962 in Kedarnath vs. State of Bihar dissented from the view of the Privy Council and adopted the view of the Federal Court.
  • The Court ruled that mere criticism of the government or comments on the administration, however vigorous or pungent or even ill-informed, did not constitute sedition.
  • The Supreme Court limited the application of Section 124A (sedition) to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.
  • Therefore, incitement to violence is the essential ingredient of the offence of sedition (emphasis added).

ii.Balwant Singh vs. State of Punjab

  • In 1995, the Supreme Court in the case of Balwant Singh vs. State of Punjab applied the principle in Kedarnath’s case to the prosecution of certain persons who raised the certain slogans.
  • The Court ruled that in view of the prosecution evidence that the slogans were raised a couple of times and that the slogans did not evoke any response from any other person of the Sikh community or reaction from people of other communities, raising of such casual slogans a couple of times without any other act whatsoever, did not justify prosecution for sedition and Section 124-A could not be invoked.

iii.Nazir Khan vs. State of Delhi

  • In 2003, in the case of Nazir Khan vs. State of Delhi the Supreme Court emphasised that: “It is the fundamental right of every citizen to have his own political theories and ideas and to propagate them and work for their establishment so long as he does not seek to do so by force and violence or contravene any provision of law.
  • The mere use of the words ‘fight’ and ‘war’ in their pledge did not necessarily mean that the society planned to achieve its object by force and violence.”

Anti-national slogans and sedition

  • Slogans, however critical or censorious of government, are not anti-national and per se do not amount to sedition.
  • If the slogans had stated that the Indian state is tyrannical and it is necessary to overthrow it, that could possibly attract Section 124-A.
  • However, Section 124-A has often been misused by ill-informed and over-enthusiastic prosecuting agencies. But, that is no ground for repealing Section 124-A.

Way Forward

  • Invocation of the section should only be in cases of slogans or statements which incite violence and have a manifest tendency to create public disorder.
  • The right remedy is to educate our law enforcement agencies and impress upon them that incitement to violence is the indispensable pre-requisite for invoking Section 124-A.
  • Our state rests on solid foundations, which cannot be disturbed by ill-tempered or pungent or stupid slogans.
  • Misuse of the sedition law should attract appropriate penalties for law enforcement agencies coupled with a provision for compensation to the injured party.

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[op-ed snap] We don’t need career judges

Note4students

Mains Paper 2: Indian Polity| Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.

From UPSC perspective, the following things are important:

Prelims level: Basic aspects of polity

Mains level: The newscard discusses issues and  challenges, related to the Indian Judiciary, in a brief manner.


Context

  • The vision document titled ‘Strategy for New India @ 75’, released by the NITI Aayog, amongst other things, proposes a spate of judicial reforms.
  • The think-tank has come out batting for the creation of an All India Judicial Service, akin to the other central services like the IAS and the IPS.

Background

  • The proposal for an All-India Judicial Service (AIJS) in lines of All-India Services was proposed as early as 1950.
  • The idea was first mooted by the Law Commission in the 1950sto have an All-India Judicial Services.
  • The Constitution of India was amended in 1977to provide for an All-India Judicial Services under Article 312.
  • The Chief Justices conferences in 1961, 1963, and 1965 favouredcreation of All-India Judicial Services and even the Law Commissions (1st, 8th and 11th, 116th) had suggested the creation of the service. However, each time it was faced with opposition.
  • The proposal was again floated by the ruling UPAgovernment in 2012 but the draft bill was done away with after opposition from High Court Chief Justices who labelled this an infringement of their rights.

Issues:

Despite the constitutional permit, the road to setting up an AIJS is ridden with numerous concerns, which remain unaddressed in the NITI Aayog’s trite proposal.

  1. The AIJS is being proposed as a panacea to cure the chronic vacancy crisis plaguing the Indian subordinate judiciary.
  • Given the limited extent to which the Constitution only permits the appointments of district judges to such a prospective AIJS, it will not magically remedy this crisis.
  • At best, what an all India service potentially offers is a more streamlined and regularised recruitment process for the limited number of vacancies for district judges in the country.
  1. The second concern is the much wider composition of the AIJS proposed by NITI Aayog, than what is permissible under Article 312.
  • The top government think-tank has rather ambitiously pitched an omnibus service to covering entry level civil judges, prosecutors and legal advisers to comprise the service.
  • Such a sweeping mandate would require considerable amendments to the Constitution, especially with respect to the appointments process for the lower subordinate judiciary.
  • These amendments, establishing a centralised appointments mechanism, may arguably be constitutionally untenable and vulnerable to being struck down as flagrant violations of the basic structure doctrine and judicial federalism.
  1. The final contention against the NITI Aayog’s proposal for an AIJS is the oversimplification of a complex legal and political issue into a punchline reform.
  • The idea of an AIJS has been significantly contentious within the legal fraternity and other concerned stakeholders.
  • Last year, on a reported internal note prepared by the Department of Justice on the feasibility of an AIJS, there was vehement disagreement by almost half the high courts in the country.
  1. Other issues includes the need to familiarise oneself with the local languages, customs, and laws of the state where a potential judicial officer will be posted, or the need to ensure reservation for locally domiciled citizens, these central selection mechanisms have thrown up grave concerns impugning their utility and legality as judicial reforms.

Way Forward

  1. The proposal of NITI Aayog leaves much to be desired, both in terms of research rigour, as well as the presentation and articulation of a complex policy challenge.
  2. While policy-vision statements are typically broad and hyperbolic, being the government’s chief policy think-tank, the onus rests on the NITI Aayog to accurately project the scope and limitations of its solutions, in order to facilitate a responsible deliberative process to address these concerns.

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[op-ed snap] A solution in search of a problem

Note4students

Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From the UPSC perspective, the following things are important:

Prelims level: Article 233, 234, 312

Mains level: Vacancy across various levels of the judiciary and the idea of an All India Judicial Service


Context

Idea of a pan India judicial service

  1. In its report, ‘Strategy for New India@75’, the NITI Aayog mooted the creation of an All India Judicial Service (AIJS) for making appointments to the lower judiciary through an all India judicial services examination conducted by the Union Public Service Commission (UPSC) in order to maintain “high standards” in the judiciary
  2. Similar proposals were made by the Union Law Minister on three different occasions this year as a solution to the problems of vacancies in the lower judiciary and a lack of representation in the judiciary from marginalised communities

The argument against AIJS

  1. The argument that the creation of the AIJS and a centralised recruitment process will help the lower judicial services is based on the assumption that the current federal structure, that vests the recruitment and appointment for the lower judiciary in the hands of State Governors, High Courts and State Public Service Commissions, is broken and inefficient
  2. Going by the latest figures published by the Supreme Court in its publication Court News (December 2017 and the last available figures), many States are doing a very efficient job when it comes to recruiting lower court judges
  3. The problem of vacancies is not uniform across different States and varies significantly from one state to another
  4. The argument that the centralisation of recruitment processes through the UPSC automatically leads to a more efficient recruitment process is flawed and not a guarantee of a solution
  5. For example, the Indian Administrative Service — its recruitments are through the UPSC — reportedly has a vacancy rate of 22%, while the Indian Army’s officer cadre, also under a centralised recruitment mechanism, is short of nearly 7,298 officers

Against equality

  1. Another argument in support of the AIJS is that its creation, along with provisions of reservations for the marginalised communities and women, will lead to a better represented lower judiciary
  2. Dalit and tribal politicians are supporting the AIJS on these grounds
  3. The fact is that several States already provide for reservations in their lower judicial service
  4. Unlike States, the Centre almost never provides reservation for women in the all India services
  5. On the issue of caste, an AIJS may provide for SC/ST reservation along with reservation for the Other Backward Classes (OBC) but it should be noted that a recent Supreme Court ruling has held that SC/STs can avail the benefit of reservation in State government jobs only in their home States and not when they have migrated
  6. The same principle is usually followed even for OBC reservations
  7. Thus, instituting an AIJS would mean that nationally dominant SC, ST and OBC groups would be at an advantage as they can compete for posts across the country, which they would otherwise be disqualified from because of the domicile requirement

No constitutional hurdle in creating AIJS

  1. Articles 233 and 234 of the Constitution vested all powers of recruitment and appointment with the State Public Service Commission and High Courts
  2. During the Emergency, Parliament amended Article 312 of the Constitution to allow for the Rajya Sabha to pass a resolution, by a two-thirds majority, in order to kick-start the process of creating an all India judicial service for the posts of district judge
  3. Once the resolution is passed, Parliament can amend Articles 233 and 234 through a simple law (passed by a simple majority), which law will strip States of their appointment powers
  4. This is unlike a constitutional amendment under Article 368 that would have required ratification by State legislatures
  5. In other words, if Parliament decides to go ahead with the creation of the AIJS, State legislatures can do nothing to stop the process

Way forward

  1. The AIJS is not a solution to judiciary recruitment problems and the government would be well advised to reconsider its stance
  2. The solution is to pressure poorly performing States into performing more efficiently

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[op-ed snap] The fear of executive courts

Note4students

Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From the UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: Overaching judicial activism and its conseqences


Context

Opinionated judiciary

  1. Justice S.R. Sen of the Meghalaya High Court recently observed in a judgment that “anybody opposing Indian laws and the Constitution cannot be considered citizens of the country”
  2. He thought it fit to further note that in 1947 India “should have been declared a Hindu country”, and that “our beloved Prime Minister” ought to legislate to grant automatic citizenship to (non-Muslim) religious minorities “who have come from Pakistan, Bangladesh and Afghanistan”
  3. Justice Sen’s ill-advised and ill-judged diatribe is only the latest in a series of instances where judges have inserted themselves into fraught political controversies, and have deployed the prestige of judicial office to lend weight to one side of the controversy

What does judicial independence entail?

  1. We normally think about judicial independence as independence from the government
  2. Our Constitution is designed to ensure that judges can do their work “independent” of government influence: fixed salaries, security of tenure, and an appointments process that — through the Supreme Court’s judgments — is insulated from executive control
  3. Independence, however, means something more. It also requires that judges perform their constitutional role independent of personal biases, political and moral beliefs, and partisan ideologies
  4. Of course, adjudication is a political task, and there is no doubt that a judge’s political vision will inform her work but that does not authorise the judge to turn into a politician
  5. At all times, she is bound to maintain primary fidelity to the law and the Constitution: to the text of legal instruments, to the canons of legal interpretation, and to the body of judicial precedent that holds the field
  6. Judicial independence, therefore, depends on judges recognising that law, while being influenced by politics, is not reducible to it

The need of accountability

  1. Law and adjudication must remain autonomous from partisan politics in important ways
  2. And the more we strengthen judicial independence in its first sense — independence from the government — the more attention we must pay to independence in this second sense
  3. This is because control brings with it accountability
  4. Politicians, for example, remain “accountable” to the people in at least some sense, because they depend upon them in order to continue in office after five years
  5. Judges who are insulated from any external control are accountable only to themselves, and their own sense of the limits of their constitutional role
  6. Accountability only to oneself, however, is a very weak form of constraint. The temptation to overstep is always immense, more so when such immense power has been placed in one’s own hands

How this crisis deepened?

  1. In the 1980s, there was a rapid expansion of judicial power. This expansion was motivated by a sense that the judiciary had long been a conservative institution, taking the side of landed interests against “the people”. This needed to change
  2. In order to accomplish this, the Supreme Court began to dispense with procedural checks upon its power
  3. Some of these steps were important and necessary, such as allowing “public interest” cases to be filed on behalf of those who were unable to access the courts
  4. Others, however, were double-edged swords, such as diluting the evidentiary standards required to prove disputed facts, and vastly expanding the courts’ discretion to shape and fashion remedies
  5. By the 1990s and the 2000s, under the misleading label of “judicial activism”, the court was beginning to engage in a host of administrative activities, from managing welfare schemes to “beautifying cities” to overseeing anti-corruption initiatives
  6. The constitutional court had become a Supreme ‘Administrative’ Court
  7. A combination of viewing the judiciary as an infallible solution to all social problems, and viewing procedure — that would otherwise constrain judicial power — as an irritant that stands in the way of a truer, purer justice has created the perfect storm that we see today

Towards ‘Executive’ courts

  1. Judgments like the national anthem order, the Tirukkural order (that every student in Tamil Nadu must study the Tirukkural), the NRC process and Justice Sen’s recent foray raise an altogether more frightening prospect: that of an “executive court”
  2. An executive court is a court whose moral and political compass finds itself in alignment with the government of the day, and one that has no compunctions in navigating only according to that compass
  3. Instead of checking and limiting government power, an executive court finds itself marching in lockstep with the government, and being used to set the seal of its prestige upon more controversial parts of the government’s agenda

Way forward

  1. We urgently need the return of a thriving legal culture, one that uncompromisingly calls out political posturing
  2. Only a principled consistency in requiring that judges must always give reasons for their judgment can halt the transformation of the constitutional court into an executive court

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India gets first witness protection scheme

Note4students

Mains Paper 2: Governance | Mechanisms, laws, institutions & Bodies constituted for the protection & betterment of these vulnerable sections

From UPSC perspective, the following things are important:

Prelims level: Particulars of the scheme

Mains level: Importance of protection for Witness in major trials


News

Background

  • The issue came up when the Supreme Court was hearing a PIL plea seeking protection for witnesses in rape cases, involving a self-proclaimed godman as key accused in Madhya Pradesh.

Supreme Court asks for implementation

  1. The Supreme Court has brought in place a witness protection regime in the country noting that one of the main reasons for witnesses turning hostile is that they are not given security by the State.
  2. A Bench of Justices A.K. Sikri and S. Abdul Nazeer said Witness Protection Scheme, 2018 will come into effect immediately across all States.
  3. The court said the scheme, which aimed to enable a witness to depose fearlessly and truthfully, would be the law of the land till Parliament enacted suitable legislation.

Witness Protection Scheme, 2018

  1. Under it, witness protection may be as simple as providing a police escort to the witness up to the courtroom.
  2. In more complex cases involving organised criminal group, extraordinary measures will be taken such as offering temporary residence in a safe house, giving a new identity, and relocation at an undisclosed place.
  3. The objective of this Scheme is to ensure that the investigation, prosecution and trial of criminal offences is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal recrimination.
  4. The scheme shall extend to the whole of the India except the State of Jammu & Kashmir.
  5. During the  course  of  investigation  or  trial  of  any  serious  offence,  an application  for  seeking  identity  protection  can  be  filed  in  the  prescribed  form before the Competent Authority.
  6. The scheme has three categories of witnesses based on the threat perception, and the states should start enforcing it:

Category ‘A’

  • Where the threat extends to life of witness or his family members and their normal way of living is affected for a substantial period, during investigation/trial or even thereafter.

Category ‘B’

  • Where the threat extends to safety, reputation or property of the witness or his family members, only during the investigation process or trial.

Category ‘C’

  • Where the threat is moderate and extends to harassment or intimidation of the witness or his family member’s, reputation or property, during the investigation process.

Other Provisions

  1. Witness Protection Fund means the fund created for bearing the expenses incurred during the implementation of Witness Protection Order passed by the Competent Authority under this scheme;
  2. Witness Protection Order means an order passed by the Competent  Authority detailing the steps to be taken for ensuring the safety of witness from threats to his or his family member’s life, reputation or property.  *It also includes interim order, if any passed, during the pendency of Witness Protection Application;
  3. Witness Protection Cell means a dedicated Cell of State/UT Police or Central Police Agencies assigned the duty to implement the witness protection order. It shall be responsible for the security as per witness protection order.

Proposed Rights to be entitled to the Witness

  • Right to give evidence anonymously
  • Right to protection from intimidation and harm
  • Right to be treated with dignity and compassion and respect of privacy
  • Right to information of the status of the investigation and prosecution of the crime
  • Right to secure waiting place while at Court proceedings
  • Right to transportation and lodging arrangements

With inputs from official website of  NALSA

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Supreme Court to direct states to implement draft witness protection scheme

Note4students

Mains Paper 2: Governance | Mechanisms, laws, institutions & Bodies constituted for the protection & betterment of these vulnerable sections

From UPSC perspective, the following things are important:

Prelims level: Particulars of the draft scheme

Mains level: Importance of protection for Witness in major trials


News

  • The Supreme Court said that it would direct all the states to implement the draft witness protection scheme framed by the Centre in consultation with the National Legal Services Authority (NALSA).

Background

  1. The issue of witness protection scheme had cropped up earlier when the top court was hearing a public interest litigation (PIL) seeking protection for witnesses in rape cases involving a self-styled preacher.
  2. The court had asked the Centre to a draft scheme for witness protection in the country as specific provisions in this regard were already there in the National Investigation Agency (NIA) Act.
  3. The SC was told that the draft scheme has now been finalised and would be made into a law in due course.
  4. However till then the court should direct the states to start implementing it.

Witness Protection

  1. Witness Protection  may  be  as simple  as  providing  a  police  escort  to  the Courtroom,  offering  temporary  residence  in  a  safe  house  or  using  modern communication   technology  for   recording   of testimony.
  2. In other  more  complex  cases,  where  cooperation  by  a  witness  is critical  to  successful  prosecution  of  a    powerful  criminal  group,  extraordinary measures are required to ensure the witness’s safety viz. anonymity, relocation of  the  witness  under  a  new  identity  in  a  new,  undisclosed  place  of

Draft Witness Protection Scheme

  1. The objective of this Scheme is to ensure that the investigation, prosecution and trial of criminal offences is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal recrimination.
  2. The schme shall extend to the whole of the India except the State of Jammu & Kashmir.
  3. During the  course  of  investigation  or  trial  of  any  serious  offence,  an application  for  seeking  identity  protection  can  be  filed  in  the  prescribed  form before the Competent Authority.
  4. The scheme has three categories of witnesses based on the threat perception, and the states should start enforcing it:

Category ‘A’

  • Where the threat extends to life of witness or his family members and their normal way of living is affected for a substantial period, during investigation/trial or even thereafter.

Category ‘B’

  • Where the threat extends to safety, reputation or property of the witness or his family members, only during the investigation process or trial.

Category ‘C’

  • Where the threat is moderate and extends to harassment or intimidation of the witness or his family member’s, reputation or property, during the investigation process.

Other Provisions

  1. Witness Protection Fund means the fund created for bearing the expenses incurred during the implementation of Witness Protection Order passed by the Competent Authority under this scheme;
  2. Witness Protection Order means an order passed by the Competent  Authority detailing the steps to be taken for ensuring the safety of witness from threats to his or his family member’s life, reputation or property. It also includes interim order, if any passed, during the pendency of Witness Protection Application;
  3. Witness Protection Cell means a dedicated Cell of State/UT Police or Central Police Agencies assigned the duty to implement the witness protection order. It shall be responsible for the security as per witness protection order

Proposed Rights to be entitled to the Witness

  • Right to give evidence anonymously
  • Right to protection from intimidation and harm
  • Right to be treated with dignity and compassion and respect of privacy
  • Right to information of the status of the investigation and prosecution of the crime
  • Right to secure waiting place while at Court proceedings
  • Right to transportation and lodging arrangements

With inputs from:  NALSA

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Judicial Reforms

[op-ed snap] Gender of justice

Note4students

Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From the UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: The need for gender sensitisation in judiciary


Context

Sexist notions in the judiciary

  1. Conservative and progressive elements tend to coincide in judicial discourse
  2. The Supreme Court has recently passed certain key judgments to safeguard the rights of women
  3. It abolished triple talaq, upheld women’s autonomy, while declaring the law on adultery unconstitutional, and ruled that the bar on women’s entry to the Sabarimala temple is illegal
  4. But the judiciary has also been a purveyor of sexist notions — at times, perhaps inadvertently. Victim-blaming by the courts lends credence to certain stereotypes, and such responses go on to influence the entire criminal justice system

Analysis of rape cases

  1. In a study conducted by researchers of the National Law University, Delhi, 50 rape case judgments of the Supreme Court were analysed to understand how the court tends to perpetuate gendered opinions
  2. The researchers also tried to understand if the court evaluates victims in a stereotypical manner
  3. These include how a rape survivor would or ought to react, what a perpetrator would do after the rape and whether a sexually active victim would make a false rape accusation
  4. It was observed that judges often have a stereotypical image of a rape victim
  5. The researchers found that the judges betrayed sexist notions of gender roles, showed a tendency to use insensitive language and made comments that undermined the seriousness of the incident
  6. Certain judgments did have sensitive comments that broke gender stereotypes and rape myths. However, such verdicts were very few

Findings of the study

The study came out with four significant findings

  1. First, was a sharp increase in gender insensitive comments in cases where the woman was sexually active. Sexist comments were made in 52.3 per cent of the cases which involved a sexually-active victim
  2. Second, the presence of a female judge on the bench led to a sharp decline in sexist comments. There was no female judge in 44.4 per cent of the cases where the bench made a sexist comment. But only 14.2 percent of the benches with a female judge made a sexist comment
  3. Third, the conviction was overturned in 80 per cent of the cases in which the bench made gender insensitive comments
  4. Fourth, gender insensitive comments have declined with significant amendments in law. While all the cases studied prior to 2003 had gender insensitive comments, only 15.1 per cent of the judgments after the 2013 criminal law amendment carried such comments

Way forward

  1. Rape victims are subjected to institutional sexism that begins with their treatment by the police, continues through a male-dominated judiciary influenced by notions of victim blaming and ends in the acquittal of many alleged rapists
  2. The solution lies in initiating conversations amongst those who are entrusted with setting the tone of public discourse
  3. Gender sensitisation of the judiciary and appointing more female judges is imperative

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No double jeopardy bar if there was no trial: Supreme Court

Note4students

Mains Paper 2: Indian Polity | Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions & basic structure

From UPSC perspective, the following things are important:

Prelims level: Fundamental rights and their interpretation

Mains level: Read the attached story


News

  • The bar of double jeopardy does not arise if an accused was discharged of a criminal offence, even before the commencement of trial, on the basis of an invalid sanction for prosecution held the Supreme Court.

Background

  1. The corruption case was filed by the Aizawl police in February 2009 for misappropriation of public money.
  2. During inquiry, it was detected that the respondent had acquired valuable assets disproportionate to known sources of income.
  3. The first invalid sanction for prosecution was issued by the Commissioner-Secretary, Department of Personnel & Administrative Reforms (DP & AR) directly without the Governor’s approval.
  4. Following the discharge of the accused by the special court, the Governor accorded a fresh sanction in December 2013.
  5. The judgment is based on an appeal filed by the State of Mizoram against an order passed by the Gauhati High Court in August 2015.
  6. It upheld a Special Court decision to decline to entertain a second chargesheet filed in a corruption case against the accused, Dr. C. Sangnghina, on the ground of double jeopardy.

SC Ruling

  1. Article 20 (2) of the Constitution mandates that a person cannot be prosecuted or punished twice for the same offence.
  2. A Bench of Justices R. Banumathi and Indira Banerjee held in a judgment that if an accused has not been tried at all and convicted or acquitted, the principles of double jeopardy cannot be invoked at all.
  3. If an earlier order of sanction was found to be invalid, there is no bar for the competent authority to issue a proper order of sanction for prosecution.
  4. The courts are not to quash or stay the proceedings under any Act merely on the ground of an error, omission or irregularity in the sanction granted by the authority unless it is satisfied that such error, omission or irregularity has resulted in failure of justice, the SC observed.

Back2Basics

Article 20 of the Indian Constitution

  1. The Article 20 is one of the pillars of fundamental rights guaranteed by the Constitution of India. It mainly deals with protection of certain rights in case of conviction for offences.
  2. When an individual as well as corporations are accused of crimes, the provisions of Article 20 safeguard their rights.
  3. The striking feature of the Article 20 is that it can’t be suspended during an emergency period.
  4. The Article has set certain limitations on the legislative powers of the Union and State legislatures.

Ex Post Facto Legislation 

  • The clause (1) of Article 20 protects individuals against ex post facto legislation, which means no individual can be convicted for actions that were committed before the enactment of the law.
  • In other words, when a legislature declares an act to be an offence or provides a penalty for an offence, it can’t make the law retroactive so as to prejudicially affect the individuals who have committed such acts prior to the enactment of that law.

Immunity from Double Punishment 

  • The Constitution of India prohibits double punishment for the same offence. That is reflected in the clause (2) of Article 20, which safeguards an individual from facing multiple punishments or successive criminal proceedings for the same crime.
  • According to this clause, no person shall be prosecuted and punished for the same offence more than once.
  • If someone has been put on trial and punished in a previous proceeding of an offence, he can’t be prosecuted and punished for the same proceedings of an offence again in subsequent proceeding. If any law provides for the double punishment, it will be considered void.

No immunity from Proceedings

  • Although Article 20 disapproves of the doctrine of ‘Double Jeopardy’, it does not give immunity from proceedings before a court of law or tribunal.
  • Hence, a public servant who has been punished for an offence in a court of law may yet be subjected to departmental proceedings for the same offence.
  • It is to be noted that Article 20 provides protection against double punishment only when the accused has been ‘prosecuted’ and ‘punished’ once.
  • Also, the Article does not prevent subsequent trial and conviction for another offence even if the two offences have some common aspects.

Immunity from Self-Incrimination

  • The immunity from self-incrimination is conferred in the Article 20(3) of the constitution which states that the accused can never be compelled to be a witness against himself. In short, no individual can be forced to accuse himself.
  • The scope of this immunity has, prima facie, been widened by the Supreme Court by interpreting the word ‘witness’ as inclusive of both oral and documentary evidence.
  • Hence, no person can be compelled to furnish any kind of evidence, which is reasonably likely to support a prosecution against him.
  • This ‘Right to Silence’ is not called upon in case any object or document is searched and seized from the possession of the accused.
  • For the same reason, the clause does not bar the medical examination of the accused or the obtaining of thumb-impression or specimen signature from him.

This immunity is only limited to criminal proceedings. 

  • The Article 20 (3) can be rightfully used as an anchor only by those accused of an offence and against whom an FIR has been lodged, which in normal course would result in prosecution.

 

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Supreme Court nod to live-streaming of court proceedings

Note4students

Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From UPSC perspective, the following things are important:

Prelims level: Particulars of the Judgment

Mains level: Need for propagating exact hearings of the judiciary to enhance understanding of a particular Judgment involving Public Interest.


News

Context

  • Ushering in more transparency in the judiciary’s work, the Supreme Court gave its nod to live-streaming of court proceedings.
  • The court held agreement with the recommendations submitted by Attorney General K K Venugopal regarding live-streaming.
  • The judgment pointed out that the Supreme Court Rules, 2013, will have to suitably amended to provide for the regulatory framework to incorporate the changes.

Importance of the ruling

  1. Although courts in India are ordinarily open to all members of the public, sometimes they are denied the opportunity to witness the proceedings due to logistical issues and infrastructure restrictions.
  2. By providing ‘virtual’ access of live court proceedings to one and all, it will effectuate the right of access to justice or right to open justice and public trial
  3. It will also put to affect the right to know the developments of law and including the right of justice at the doorstep of the litigants.
  4. The court expected that this does not interfere with the administration of justice or the dignity and majesty of the court hearing the matter and/or impinge upon any rights of the litigants or witnesses.

Impact of Broadcasting

  1. It will reduce the public’s reliance on second-hand narratives to obtain information about important judgments of the court and the course of judicial hearings.
  2. Society will be able to view court proceedings first-hand and form reasoned and educated opinions about the functioning of courts.
  3. This will help reduce misinformation and misunderstanding about the judicial process.

Starting on Pilot basis

  1. As a pilot project, only cases of constitutional and national importance being argued for final hearing before the Constitution Bench are live-streamed initially, the court said.
  2. For this, permission of the court concerned will have to be sought in writing in advance.
  3. Consent of parties to the proceedings must be insisted upon, and if there is no unanimity between them, the court concerned can take the appropriate decision in the matter.
  4. The court concerned will also have the power to revoke permission at any stage of the proceedings.

Other Details

  1. There must be a reasonable time-delay (say 10 minutes) between the live court proceedings and the broadcast.
  2. This is to ensure that any information which ought not to be shown, as directed by the court, can be edited from being broadcast.
  3. The judgment touched on the placement of cameras in the courtroom and reproduction, re-broadcasting, transmission, publication, re-publication, copying, storage and/or modification of any part(s) of the original broadcast of court proceedings, in any form, physical, digital or otherwise, must be prohibited.
  4. It will also attract prosecution.

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[pib] Law commission submits report on “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies”

Note4students

Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From UPSC perspective, the following things are important:

Prelims level: ICCPR, Provisions against Wrongful Prosecution

Mains level: Need for Compensation against Wrongful Prosecution.


News

Context

  1. The Law Commission of India submitted its report titled ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’ to the Government of India.
  2. The Delhi HC in its Order in the case of Babloo Chauhan expressed grave concern about the state of innocent persons being wrongfully prosecuted, incarcerated for crimes that they did not commit.
  3. The Court highlighted the urgent need for a legislative framework for provided relief and rehabilitation to victims of wrongful prosecution, incarceration.

Global Scenario on Wrongful Prosecution

  1. Internationally, the issue is identified as ‘miscarriage of justice’ that takes place after a person has been wrongfully convicted but is later found to be factually innocent basis a new fact / proof coming to light.
  2. The International Covenant on Civil and Political Rights (‘ICCPR’, ratified by India) also creates an obligation on the State parties to enact a law to compensate the victims of such miscarriage of justice.

Wrongful Prosecution

  1. The panel recommended ‘wrongful prosecution’ to be the standards of miscarriage of justice, as against ‘wrongful conviction’ and ‘wrongful incarceration’.
  2. ‘Wrongful prosecution’ would include cases where the accused and not guilty of the offence, and the police and / or the prosecution engaged in some form of misconduct in investigating and / or prosecuting the person.
  3. It would include both the cases where the person spent time in prison as well as where he did not; and cases where the accused was found not guilty by the trial court or where the accused was convicted by one or more courts but was ultimately found to be not guilty by the Higher Court.

Panel Asks for Remedial Measures

  1. The Report gives an overview of the remedies available under the existing laws and discusses their inadequacies.
  2. The panel recommends provision of relief to the victims of wrongful prosecution in terms of monetary and non-monetary compensation
  3. This may include counseling, mental health services, vocational / employment skills development etc. within a statutory framework.
  4. The Report enumerates the core principles of the recommended framework-
  • defining ‘wrongful prosecution’ i.e., cases in which claim for compensation can be filed,
  • designation of a Special Court to decide these claims of compensation,
  • nature of proceedings – timeline for deciding the claim, etc.,
  • financial and other factors to be considered while determining the compensation,
  • provisions  for interim compensation in certain cases,
  • removal of disqualification on account of wrongful prosecution / conviction etc.
  1. A draft Bill, articulating the aforesaid, is annexed with the Report as the Code of Criminal Procedure (Amendment) Bill, 2018.

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Law Commission calls for re-think on sedition clause

Note4students

Mains Paper 2: Governance | Important aspects of governance, transparency & accountability

From UPSC perspective, the following things are important:

Prelims level: Section 124A

Mains level: Broadening the Scope of Free Speech.


News

Considering Contempt of Government

  1. Dissent and criticism of the government are essential ingredients of a robust public debate in a vibrant democracy, said the Law Commission of India.
  2. The Commission published a consultation paper recommending that it is time to re-think or even repeal the provision of sedition (Section 124A) from the Indian Penal Code.
  3. The Commission has also posed the query that if contempt of court invites penal action, should “contempt of government” also attract punishment.
  4. The Commission asked whether it would be “worthwhile” to rename Section 124A and find a suitable substitute for the term sedition.

Right to Free Speech

  1. The Commission seeks to consider that right to free speech and expression is an essential ingredient of democracy.
  2. The Commission said an expression of frustration over the state of affairs cannot be treated as sedition.
  3. It recommended that India should not retain the British era clause to oppress Indians, whereas Britishers have themselves abolished the law in their country.
  4. It said every restriction on free speech and expression must be carefully scrutinized to avoid unwarranted restrictions.

Dissent is the safety valve of democracy, says SC

  1. The consultation paper was published a day after the Supreme Court lashed out at the forces while hearing a petition challenging the pan-India crackdown and arrests of five activists.
  2. For merely expressing a thought that is not in consonance with the policy of the government of the day, a person should not be charged under the Section.

Constructive Criticism is essential

  1. If the country is not open to positive criticism, there lies little difference between the pre- and post-Independence eras.
  2. Right to criticize one’s own history and the right to offend are rights protected under free speech.

Way Forward

  1. In a democracy, singing from the same songbook is not a benchmark of patriotism.
  2. People should be at liberty to show their affection towards their country in their own way.
  3. While it is essential to protect national integrity, it should not be misused as a tool to curb free speech, the Commission said in its consultation paper.

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Judicial Reforms

[pib] Appellate Tribunal for Electricity (APTEL)

Note4students

Mains Paper 2: Indian Polity | Statutory, regulatory and various quasi-judicial bodies

From UPSC perspective, the following things are important:

Prelims level: APTEL

Mains level:  Read the attached story


News

Context

Justice Manjula Chellur took Oath as Chairperson, Appellate Tribunal for Electricity, Ministry of Power.

Appellate Tribunal for Electricity (APTEL)

  1. On 10th June, 2003, the Electricity Act was notified by the Govt. of India.
  2. A/c to this act, Appellate Tribunal for Electricity has been established by Central Government for those who are not satisfied with the Central Electricity Regulatory Commission order or with a state.
  3. The Tribunal has the authority to overrule or amend that order, just like the Income-Tax tribunal or the Central Administrative Tribunal.
  4. The tribunal has to be approached within 45 days of the aggrieved person from getting the order.
  5. The Act extends to the whole of India except the state of Jammu & Kashmir.

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Judicial Reforms

[op-ed snap] The narrow and the transformative

Note4students

Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From UPSC perspective, the following things are important:

Prelims level: Philosophy behind the working of Judiciary

Mains level: Judicial adjudication in certain cases can create the fear of alienation and leaves all possibility to trigger a cultural war. However the role played by Indian Judiciary is revolutionary , a golden mean of narrow and transformative approaches.


News

Hearing most crucial cases

  1. Certain cases have placed the apex court at the heart of the culture wars.
  2. The Aadhaar challenge was argued on the relatively straightforward basis of when and to what extent the state can exercise its coercive power over individuals.
  3. The 377 and Sabarimala hearings have seen clashes between the invocation of personal rights and the claims of cultural and religious groups.
  4. This is set to continue with the forthcoming adultery hearings, where the state’s objection to the decriminalisation of adultery is premised on the argument that it would destroy the institution of marriage.

The strategy of containment

  1. Whenever a constitutional challenge brings individuals against the state, the court’s task is to find if there has been a breach by the state, and it must strike down the offending law (or rules), and vindicate the rights at issue.
  2. This is because these conflicts often represent deep, long-standing and irreconcilable divisions in society, touching issues of personal belief and conviction.
  3. This strategy of containment creates a situation where, for the most part these conflicts remain submerged.
  4. The fear of permanent defeat prompts all parties to maintain a tense equilibrium. One method of resolution is through the courts.
  5. Unlike in political or economic disputes, a decisive loss in personal belief risks creating deeply embittered and alienated communities, and risks an erosion of faith in the neutrality and impartiality of state institutions.
  6. Ex: Constitution framers consciously refrained from directly addressing them: for example, the framers of the Constitution deliberately placed the provision for a uniform civil code in the unenforceable DPSP chapter, thinking that it was too divisive to be made a FR.

The narrow approach

  1. To avoid overreach, there is a popular school of thought that asks the court to tread with particular caution when questions of culture are at stake.
  2. As far as possible the court should avoid hearing and deciding such questions altogether. If it is must to decide, then it should do so on the narrowest grounds possible.
  3. The role of the court, in short, is to do everything it can to lower the stakes, and take a pragmatic, problem-solving approach to the conflict rather than an ideal-oriented, expansive one.
  4. In the Section 377 hearings, the government stated that it would not oppose the “reading down” of Section 377 as long as it was confined to same-sex relations between consenting adults in private.
  5. During oral arguments, every time the petitioners pressed for something more, government counsel urged the court to limit itself to simple decriminalisation, and nothing more.

The transformative approach

  1. The philosophy of Constitutional Adjudication holds that the Constitution is a transformative document, whose goal is to erase and remedy long-standing legacies of injustice.
  2. A particular feature of these injustices is their deep-rooted, social and institutional character. In the Indian context, the most obvious example is that of caste.
  3. The ill influence of caste-discrimination in our society not only prompted the inclusion of a specific article in the Constitution abolishing untouchability (Article 17), but it gave rise to a constitutional vision of equality that specifically included affirmative action.
  4. Consequently, the narrow approach sees a culture war triggered by the disruption of a carefully-maintained accommodation of cultural difference.
  5. The transformative approach sees a long-suppressed protest against a system of hierarchy and subordination that has found its utterance in the language of constitutional rights.
  6. Ex: In the 377 hearings, it was argued that decades of social exclusion and ostracism of the LGBT community could not be remedied simply by “decriminalisation”.
  7. Rather, it would require the court that no institution, public or private, would be permitted to discriminate on grounds of sexual orientation, or deny any person their civil rights.

Way Forward

  1. In section 377 case, SC ruled for equal moral membership of the LGBTQI community.
  2. Similarly, in the Sabarimala case, Court ruled that constitutional morality must prevail over precepts that are rooted in any particular religion.
  3. In these cases, therefore, the court is faced with a stark choice between the narrow and the transformative approaches to navigating the choppy waters of culture and the Constitution.
  4. Which direction it chooses to take, depends upon what it believes the Constitution is for and will have profound consequences in the years to come.

By Explains

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Judicial Reforms

[op-ed snap] The art of writing a judgment

Note4students

Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: The problem of lengthy judgments being given by judiciary across all levels and measures that should be taken to bring more simplicity in this process


Context

Lengthy judgments from Judiciary

  1. The fate of the governance of the National Capital Territory of Delhi was decided earlier this month by the Supreme Court
  2. But one had to pore over 500 pages of widely awaited judgment in order to understand the demarcation of powers between the Lieutenant Governor and the elected government
  3. It was yet another reminder about the need for crisp and on-message judgments

The need of crisp judgments

  1. First, erroneously drafted judgments run into pages and state the same point repeatedly
  2. Second, insensitive comments made in judgments can tarnish the quality of pronouncements
  3. Third, several judgments do not record submissions or issues raised by both parties, which often results in a reader being unable to make out the link between the legal provisions used to arrive at a judgment and the facts to which they are applied
  4. Lastly, in most judgments, a uniform structure (recording of facts, issues, submissions and then reaching the decision) is lacking

What can be done?

  1. Judicial academies play a significant role in equipping trainee judges to deliver lean, to-the-point judgments
  2. As judgment writing is one of the most requisite skills that a judge should possess, there has to be focussed training in this area
  3. To eliminate bias, training sessions could have diverse socio-economic scenarios which would also help trainee judges apply theories
  4. There can be variations of the same case scenario and the facts that are likely to induce value judgments
  5. Evaluation and a full class discussion must follow
  6. Another useful exercise is in re-writing judgments, particularly those that are difficult to understand due to a seeming lack of structure
  7. Trainee judges can be asked to identify structural lapses and rework them
  8. Judicial training must lay emphasis on the need for concise and reasoned judgments

Attempts in this direction

  1. The attempt towards improving judgment quality (in the form of training sessions on judgment writing conducted by judicial academies) appears to be ineffective
  2. Several judgments in lower and higher courts continue to remain verbose
  3. Judges-in-training do not go to areas of law or management that they want to be trained in and a generic syllabus is thrust upon them
  4. The pedagogical methodology of training is classroom-like, with little or no post-training evaluation

Way Forward

  1. Judicial academies must focus on practical-based training
  2. In the interim, higher courts and also the Supreme Court must consider summarising the crux of lengthy decisions into a separate official document
  3. Judicial decisions are the law of the land and if the law is unclear, it becomes increasingly difficult to follow or enforce them

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SC reserves verdict on plea seeking ban on MPs/MLAs practising as advocates

Note4students

Mains Paper 2: Polity | Structure, organization and functioning of the Executive and the Judiciary

From UPSC perspective, the following things are important:

Prelims level: Judgement of Supreme Court

Mains level: Debate over MPs/MLAs practising as advocates.


News

MPs/MLAs can practise as Advocates

  1. The Supreme Court on Monday reserved its verdict on a plea seeking a ban on members of Parliament and legislative assemblies practising as advocates.
  2. The attorney general of India, K.K. Venugopal, argued that such a prohibition did not exist in law and there was no ‘full time’ ‘employment’ between a government and MPs/MLAs.
  3. However, he added, that such a ban was present in case of a minister.
  4. The Bar Council of India had, on a previous occasion, informed the court that they were not opposed to legislators practicing law.

Why was Ban demanded?

  1. The plea alleges that MPs/MLAs practising as advocates pose a “conflict of interest” under the provisions of the Advocates Act, 1961, and the Bar Council of India Rules.
  2. The dual role would also amount to professional misconduct when MPs and MLAs, who get salary and other benefits from public funds, may appear against the government as lawyers.
  3. Another instance would be counsel thinking about their clients’ interests while passing a bill in their capacity as legislators.
  4. It was sought that a ban on legislators practising as advocates till the period that they are occupying such positions.

By Explains

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Judicial Reforms

Supreme Court upholds Chief Justice of India as ‘Master of Roster’

Note4students

Mains Paper 2: Polity | Structure, organization and functioning of the Executive and the Judiciary

From UPSC perspective, the following things are important:

Prelims level: Judgement of the SC, Judges Cases

Mains level: Debate over powers of CJI to redirect cases to various benches.


News

CJI- the Master of Roster

  1. The ‘Chief Justice of India’ (CJI) is an individual judge and not the powerful collective of five senior-most judges of the Supreme Court called the ‘Collegium’, held the Supreme Court.
  2. And it is this exclusive authority of this individual judge, who is the “spokesperson of the court”, to allocate cases to fellow judges as the ‘Master of Roster’, a Bench of Justices A.K. Sikri and Ashok Bhushan declared in their separate but concurring opinions.
  3. The judgment is based on a petition filed by former Union Law Minister to have a collegium of Supreme Court judges to collectively allocate cases rather than leave the entire power in the hands of the CJI in his administrative capacity as the ‘Master of Roster’.

The moral responsibility of CJI

  1. SC highlighted that the CJI owes a moral responsibility to his colleagues and the public at large while flexing his powers as ‘Master of Roster’ to allocate cases.
  2. CJI Dipak Misra and some of his predecessors were criticised by four of his senior-most judges led by Justice Chelameswar for allocating cases of national importance to select judges.
  3. They hinted that “absolute discretion” cannot be confined in just one man, the CJI.

Qualities for a CJI

  1. Justice Sikri’s opinion listed some of the qualities a CJI should possess as the Master of Roster, including balance, fortitude, moral courage and independence of mind.
  2. As the court’s spokesperson, it is the CJI’s duty to usher in and administer reform as a continuous process.
  3. Erosion of credibility of judiciary is the greatest threat.

CJI is the “ultimate authority to distribute judicial work

  1. Both Justices Sikri and Bhushan concurred that neither Article 145 (rules of court) and the Supreme Court Rules say the ‘Chief Justice of India’ as the Collegium.
  2. Unlike having the Collegium to decide the appointment and transfer of judges, a collective deciding which cases should go to which Bench would affect the day-to-day functioning of the court.
  3. The role of the CJI as the Master of Roster was qualified by the consensus from other judges.
  4. The CJI took into consideration the expertise, capacity and interest of his fellow judges while allocating cases to them.
  5. This duty should be left to his wisdom.

Defying ‘the proposal’

  1. It was argued that the authority of the CJI as the ‘Master of Roster’ to allocate cases to Benches should not be reduced to an “absolute, singular and arbitrary power”.
  2. The court rejected proposal that the CJI should only sit with two of his senior most judges.
  3. And the Constitution Bench should be either a combination of the five senior most judges or three senior most judges, including him, and two junior most judges.
  4. The court said all this should be left to the CJI to decide on.

CJI only first among equals

  1. Justice Sikri said though the Constitution is silent on the exact role of the CJI, precedents, healthy practices and conventions – engrafted in the Supreme Court Rules – have moulded the powers and duties of the office.
  2. Justice Sikri wrote that the CJI is only ‘first among equals’ in his judicial functions on the Bench.
  3. The opinion of the CJI on the Bench carries the same weight as any other member of the Bench.
  4. This way, the CJI may hold the minority view in a case while the majority opinion on the Bench becomes the law.

AGI’s view on the issue

  1. Attorney General K.K. Venugopal, who was asked to assist the court, had argued that having a Collegium of the five senior most judges to allocate cases among all judges in the court would only invite chaos.
  2. Unlike the Collegium to recommend new judges, a collegium to allocate cases would mean judges deciding for themselves which cases they should hear.
  3. Better have the CJI decide for all as the Master of Roster.

Contradicting the Third Judges Case (1998) with recent judgements

  1. The Judges case of 1998 has infers that the Supreme Court itself had interpreted the term ‘Chief Justice of India’ to collectively mean the CJI and his four senior most judges.
  2. The Bench heard the petition despite two separate judgments by the Supreme Court in November 2017 and April this year upholding the CJI ‘s complete administrative authority to allocate cases and constitute Benches.
  3. Both these judgments were pronounced by Benches led by CJI Dipak Misra and the verdict had called the CJI an “institution in himself”.

By Explains

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Judicial Reforms

[op-ed snap] Acting against a judge

Note4students

Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From UPSC perspective, the following things are important:

Prelims level: Particulars of the Judges (Inquiry) Act, 1968

Mains level: Recent issues related to working of judiciary


News

Context

  1. The failed bid to initiate the impeachment process for the removal of Chief Justice of India has also drawn attention to the Judges (Inquiry) Act, 1968

Requirements under the Judges (Inquiry) Act

  1. A procedural statute, it regulates “the procedure for the investigation and proof of the misbehavior or incapacity of a judge of the Supreme Court or of a High Court and for the presentation of an address by Parliament to the President and for the matter, connected therewith”
  2. It covers the stages between the admission of the removal motion and the address of the motion in the Houses of the Parliament

Committee to inquire Charges

  1. Section 3 describes the investigation into the charges by a committee of three members, who would be selected by the Chairperson or Speaker
  2. Once formed, the committee will frame definite charges against the judge on the basis of which the investigation is proposed to be held

The beginning of the trial

  1. Such charges, together with a statement of the grounds on which each such charge is based, shall be communicated to the judge.
  2. The judge will then be given a reasonable opportunity to present a written statement in his or her defence within the time specified by the committee.

Misbehavior yet undefined

  1. It is left to Parliament to decide what constitutes proved misbehaviour from case to case.

Proving Incapacity

  1. In case the judge denies that he or she is unable to discharge the duties of office “efficiently” due to any physical or mental incapacity, the committee will arrange for the medical examination of the judge by such medical board as may be appointed for the purpose by the Speaker or Chairman.
  2. If the judge refuses to undergo the examination considered necessary by the medical board, the board shall submit a report to the committee stating the case.
  3. The committee may, on receipt of such report, presume that the judge suffers from physical or mental incapacity as alleged in the removal motion.
  4. The committee may, after considering the written statement of the judge and the medical report, if any, amend the charges. In such a case, the judge would be given a reasonable opportunity of presenting a fresh written statement of defence

Government intervention

  1. The government, if required by the Speaker or the Chairperson, can appoint an advocate to conduct the case against the judge
  2. The judge must also be given an opportunity to cross-examine witnesses

Concluding the Investigation

  1. At the conclusion of the investigation, the committee is to submit a detailed report to the Speaker or Chairperson
  2. If the report has a finding that the judge is guilty of any misbehaviour or suffers from an incapacity, then, the removal motion shall, together with the report of the committee, be taken up for consideration by the House or the Houses of Parliament in which it is pending

Back2Basics

Impeachment of a Supreme Court Judge

  1. Article 124(4) of the Constitution of India states: “A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity”
  2. 100 Lok Sabha MPs or 50 Rajya Sabha MPs is the minimum number of signatories required to issue the notice
  3. The notice has to be handed over either to the Speaker if it is from Lok Sabha MPs or to the Chairman if it is Rajya Sabha MPs
  4. If and when the motion is admitted, the Speaker or the Chairman will have to constitute a three-member committee to investigate the charges leveled against the Supreme Court judge
  5. This committee will consist of a senior Supreme Court judge, a High Court judge, and a ‘distinguished jurist’ — who is a highly qualified law professor who has been appointed as a Supreme Court judge by the President of India

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Judicial Reforms

How is the Chief Justice of India impeached?

Note4students

Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From UPSC perspective, the following things are important:

Prelims level: Impeachment process of judges

Mains level: Recent issues related to working of judiciary


Motion to impeach Chief Justice of India

  1. Opposition leaders met Chairman of the Rajya Sabha to hand over a motion to impeach Chief Justice of India
  2. The Chairman of the Rajya Sabha is the Vice President of India
  3. This is not the first time impeachment has been mentioned in the same sentence as a sitting judge

Can a judge be impeached?

  1. Just like all other constitutional positions, the Chief Justice of India can also be impeached provided the necessary steps as laid out in the Constitution are taken
  2. This is not the first time impeachment has been mentioned in the same sentence as a sitting judge

Procedure for impeachment

  1. Article 124(4) of the Constitution of India states: “A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity”
  2. 100 Lok Sabha MPs or 50 Rajya Sabha MPs is the minimum number of signatories required to issue the notice
  3. The notice has to be handed over either to the Speaker if it is from Lok Sabha MPs or to the Chairman if it is Rajya Sabha MPs
  4. If and when the motion is admitted, the Speaker or the Chairman will have to constitute a three-member committee to investigate the charges levelled against the Supreme Court judge
  5. This committee will consist of a senior Supreme Court judge, a High Court judge and a ‘distinguished jurist’ — who is a highly qualified law professor who has been appointed as a Supreme Court judge by the President of India

What happens after the investigation?

  1. The three-member committee has to support the motion for it to be sent back to the House where it was introduced
  2. In the House, it has to be discussed and passed with a special majority — not less than two-thirds
  3. This means, in case of a full House seated, at least 364 Members should have voted for the motion in the Lok Sabha, and 164 Members in the Rajya Sabha
  4. This will then pass on to the other House where it has to be passed by special majority again
  5. Once it passes both the Houses of Parliament, the President can be approached to remove the Chief Justice of India

Can CJI continue working while the motion of impeachment is in the process?

  1. Both the Constitution and the Judges (Inquiry) Act of 1968 are silent on whether a judge facing impeachment motion should recuse from judicial and administrative work till he is cleared of the charges against him
  2. Neither the law nor propriety requires the CJI to withdraw from work
  3. Until the Rajya Sabha Chairman makes up his mind to admit the motion and refer it to an Inquiry Committee under the 1968 Act, things will be as usual for the CJI

By Explains

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Judicial Reforms

Reviewing the Contempt of Courts Act

Note4students

Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciaryt

From UPSC perspective, the following things are important:

Prelims level: Contempt of Courts Act of 1971, Article 142(2) of the constitution, Law Commission of India (Evolution, Historical perspectives, Key recommendations), Twenty-First Law Commission (2015-2018)

Mains level: Role of Law Commission in Legal Reforms


Contempt of Courts Act

  1. The Contempt of Courts Act of 1971 is one of the most powerful statutes in the country.
  2. It gives the constitutional courts wide powers to restrict an individual’s fundamental right to personal
    liberty for “scandalising the court” or for “willful disobedience” of any judgment, writ, direction or
    order
  3. The offence of “scandalising the court” continues in India even though it was abolished as an offence in
    England and Wales long ago

What Law Commission Report said?

  1. Deleting the provision relating to ‘criminal contempt’ inter alia ‘scandalising of courts’ will have no impact on the power of the Superior Courts to punish for contempt (including criminal contempt) in view of their inherent constitutional powers, as these powers are independent of statutory provisions
  2. The report stated that there is no point “tinkering” with the 1971 Act. The statute only lays down the procedure in contempt cases
  3. The powers of contempt of the Supreme Court and High Courts are independent of the Act 1971
  4. The contempt powers of the higher courts are drawn from the Constitution itself
  5. Article 142(2) enables the Supreme Court to investigate and punish any person for its contempt
  6. It empowers the High Court to act if someone is in contempt of the subordinate courts
  7. Diluting the Act would expose the subordinate judiciary to acts of contempt of court

Back2Basics

Law Commission of India

  1. It is an executive body established by an order of the Government of India. First law commission of independent India was established post the Independence in 1955
  2. Composition: Chairman, 1 Permanent Member, 1 Member Secretary, 2 Part-time Members, 2 ex-officio
    members. (21 st Law Commission Chairman: Justice BN Chauhan)
  3. Tenure: 3 Years
  4. Function: Advisory body to the Ministry of Law and Justice for “Legal Reforms in India”
  5. Recommendations: NOT binding
  6. First Law Commission was established during the British Raj in 1834 by the Charter Act of 1833
  7. Chairman: Macaulay
  8. Recommended for the Codifications of the IPC, CrPC etc.

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Right to convert is part of fundamental right of choice: Supreme Court

Note4students

Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From UPSC perspective, the following things are important:

Prelims level: Provisions related to freedom of religion

Mains level: Ever expanding scope of fundamental rights and SC’s role in ensuring their availability


Right to choose a religion

  1. The Supreme Court has held that a person’s right to choose a religion and marry is an intrinsic part of her meaningful existence
  2. Neither the State nor “patriarchal supremacy” can interfere in her decision

SC’s reasoning

  1. Freedom of faith is essential to his/her autonomy
  2. Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow
  3. Matters of belief and faith, including whether to believe, are at the core of constitutional liberty
  4. Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere

By Explains

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Judicial Reforms

Talks revived to consider impeachment of CJI

Note4students

Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From UPSC perspective, the following things are important:

Prelims level: Impeachment procedure of judges

Mains level: Issues related to working of Judiciary


Talks on to move an impeachment motion against CJI

  1. Some Opposition parties have revived the process of discussing the moving of an impeachment motion against Chief Justice of India Dipak Misra

Process of impeachment

  1. To move an impeachment motion in the Rajya Sabha, the petition has to be signed by 50 MPs
  2. If an impeachment motion is brought about, then there will be an inquiry with two sitting Supreme Court judges and a jurist
  3. And until then, convention says a judge has to recuse from taking up cases
  4. After the motion is passed by each House of the Parliament by special majority, an address is presented to the President for removal of the judge

Back2Basics

Impeachment of SC judges

  1. The procedure relating to the removal of a judge of the Supreme Court is regulated by the Judges Inquiry Act,1968, by the process of impeachment
  2. There are two grounds for removal – proved misbehavior or incapacity
  3. A judge of the Supreme Court can be removed from his office by an order of the President
  4. The President can issue the removal order after an address by the Parliament
  5. This address should be supported by a special majority of each House of Parliament (that is, a majority of the total membership of that House and a majority of not less than two-thirds of the members of that house present and voting)
  6. This address has to be presented to the President in the same session of Parliament for such a removal

By Explains

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Judicial Reforms

[op-ed snap] The 1947 singularity

Note4students

Mains Paper 2: Polity | Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions & basic structure

From UPSC perspective, the following things are important:

Prelims level: 1919 and 1935 Government of India Acts, Section 377 of the Indian Penal Code, Emergency powers, ordinances

Mains level: Universal adult suffrage in India and its effect in democratic process


Context

Significance of 1947

  1. Constitution marked a moment of discontinuity with the colonial past
  2. It is argued that in the thirty years before Independence, there had been a slow and incremental development of representative institutions in India

Evolution towards self-government

  1. The 1919 and 1935 Government of India Acts established a limited franchise and allowed for the functioning of provincial legislative assemblies
  2. The new governmental set-up wast he final step in the process of evolution towards self-government

Retaining colonial legal system

  1. Elements of this system have been upheld and endorsed by the courts, some quite recently
  2. These include the laws of sedition, blasphemy and criminal defamation, Section 377 of the Indian Penal Code, and far-reaching Emergency powers
  3. All these provisions are based on logic of the colonial imperative of reducing citizens to subjects and placing their liberties at the mercy centralized and unaccountable power

Universal suffrage in India

In at least four distinct ways, universal suffrage in independent India marked a decisive break from its colonial past

  1. Arithmetically: the franchise granted by the British regime in the 1919 and 1935 Government of India Acts was highly restricted, and at the highest (in 1935) no more than 10% of Indians could vote
  2. Structurally: voting in British India took place under the regime of separate electorates, divided along class and economic lines
  3. The character of the electorate: voting entitlements were based on property and formal literacy-based qualifications, which reproduced existing social and economic hierarchies, and excluded the very people whose interests were most in need of “representation”
  4. Fourth, voting was a gift of the colonial government, which could be granted or taken away at its will. It was a privilege accorded to a few Indians, and not a right

Effect of granting universal suffrage

  1. By doing this, independent India transformed the status of its people from subjects to citizens
  2. In the political realm, it was a transformation from hierarchy and subordination to radical equality
  3. It democratized the relationship between the individual and the state even after elections, by constraining the amount of centralized power that the state could accumulate
  4. Constitution intended to take us from a “culture of authority” to a “culture of justification” – that is, a culture in which every exercise of power and authority must be justified to those who are subject to it

Acknowledgement by Judiciary

  1. There are recent signs that the courts have begun to understand this
  2. In early 2017, in a very significant judgment involving the executive’s ordinance-making powers, the Supreme Court expressly departed from colonial precedents on the subject
  3. It placed important limits upon the scope of presidential ordinances
  4. Later in the year, when the court was hearing the dispute between the elected Delhi government and the Lieutenant-Governor (another colonial holdover), more than one counsel framed the issue in terms of the constitutional commitment to progressively deepening democracy

Upcoming issues before the court

  1. These involve questions of how much power the state can wield over individuals
  2. What rights individuals have to decide for themselves
  3. How they will define their relationship with the state
  4. How the constitutional “culture of justification” holds the state accountable for the uses and abuses of such power

Way forward

  1. Our Constitution is in violent contrast to those of states where the state is everything and the individual but a slave or a serf to serve the will of those who for the time being wield almost absolute power
  2. Sanctity of the individual should be recognised and emphasized on

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[op-ed snap] Should Supreme Court proceedings be live-streamed?

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Mains Paper 2: Governance | Important aspects of governance, transparency and accountability, e-governance- applications, models, successes, limitations, and potential

From UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: Importance of live streaming of court cases and related issues discussed in the newscard.


News

What is the issue?

  1. The Indian legal system is built on the concept of open courts, which means that the proceedings are open to all members of the public
  2. But the reality is different
  3. On any given day, only a handful of people can be physically present and are allowed in the courtroom

An important question: Why shouldn’t the legal system benefit from technology?

  1.  While the courts are now opting for digitisation, with online records of all cases, a provision for filing FIRs online, an automated system of case rotation, etc.
    There is still a need to do more
  2. An important question arises
  3. In the light of these technological advancements, why shouldn’t millions of people be allowed to watch the rich deliberations that transpire in the halls of justice?

Live streaming of court cases is not needed for all the cases

  1. First, note that live-streaming is neither called for in all types of matters nor in all courts
  2. The emphasis is to make those matters that are of great public importance available for all to see
  3. Therefore, matters which have a privacy dimension, such as family matters or criminal matters, or matters with legal procedural intricacies, such as most trial court matters, are out of its scope
  4. But matters which have a bearing on important public interest issues such as the constitutionality of the Aadhaar scheme, or the legality of Section 377 of the Indian Penal Code,
    all of which are pending before the Supreme Court, should be available for all to watch

The demand is not impossbile

  1. Further, note that to promote transparency, live-streaming has been allowed for both Lok Sabha and Rajya Sabha proceedings since 2004
  2. Similarly, the recording of videos in the highest courts in Canada and Australia, the International Court of Justice, shows that this exercise is neither novel nor so difficult

Why is it important?

  1. To educate common people on how the judiciary functions is a strong reasons in favour of allowing live-streaming of court proceedings
  2. It presents a hope for the Indian legal system to finally deliver on its promise to empower the masses, not be scared of them

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Panel looking into anthem protocol checks rules in other nations

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Mains Paper 2: Polity | Comparison of the Indian constitutional scheme with that of other countries

From UPSC perspective, the following things are important:

Prelims level: Prevention of Insult of National Honour Act, 1971

Mains level: Provisions related to symbols of national importance


Inter-ministerial committee for examining rules on playing national anthem in public places

  1. An inter-ministerial committee has been formed to look into statutory requirements on playing of national anthem in cinema halls and public places
  2. The Supreme Court had set a deadline of six months for the committee to come up with the detailed guidelines

Committee suggestions

  1. It came up with a suggestion to examine protocols followed by other countries
  2. Members of the committee said that suggestions should be invited from schools and educational institutions and other stakeholders before finalizing the guidelines
  3. The panel will also take up incidents related to violence over playing of national anthem or hoisting of the flag before recommending any penal amendments

International protocols

  1. Russia has stringent provisions to punish anyone insulting the national anthem
  2. It is customary in Australia to stand up whenever the anthem is played at a ceremony or public event
  3. In the US, there are legal codes that apply to flag etiquette, the Pledge of Allegiance, and the national anthem
  4. There is no precedence to discipline US citizens for failing to stand up for the anthem
  5. In Italy, it is not mandatory to play the national anthem in schools or other public places
  6. But citizens are required to stand and show respect to the anthem

Provision in India

  1. Under the Prevention of Insult of National Honour Act, 1971, an Indian may be imprisoned for up to three years for trying to disrupt or prevent singing of the national anthem

Back2Basics

Prevention of Insult to National Honour Act of 1971

  1. The Prevention of Insults to National Honour Act, 1971 is an Act of the Parliament of India which prohibits desecration of or insults to the country’s national symbols, including
  • The National Flag,
  • The Constitution,
  • Indian map and
  • The National Anthem

2. Significant amendments were added in 2003 and 2005, which prohibited many previously common uses of the flag, such as draping it over a podium during a speech, using it as decoration, or incorporating it into clothing designs

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Government to revisit Malimath report on criminal justice system

Note4students

Mains Paper 2: Polity | Separation of powers between various organs dispute redressal mechanisms & institutions

From UPSC perspective, the following things are important:

Prelims level: Justice Malimath Committee, Evidence Act, National Judicial Commission, Article 124

Mains level: Reforms required in criminal justice system


Committee report on reforms in the criminal justice system

  1. The Committee on Reforms of the Criminal Justice System, or the Justice Malimath Committee, was constituted by the Home Ministry in 2000
  2. The committee recommended admissibility of confessions made before a police officer as evidence in a court of law
  3. The report is now being revisited by the Centre

Major recommendations

  1. The Committee had suggested constituting a National Judicial Commission and amending Article 124 to make impeachment of judges less difficult
  2. It had suggested that Section 54 of Evidence Act be substituted by a provision to the effect that in criminal cases, evidence of bad character and antecedents is relevant
  3. Just as evidence of good character of the accused is relevant, evidence regarding bad character of the accused should also be relevant

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Article 124

  1. Article 124 of Constitution of India deals with Establishment and constitution of Supreme Court
  2. It deals with the appointment of judges to the Supreme Court of India
  3. It also talks about the number of judges to the superior Courts, their qualification and the mode of appointment of Chief Justice of India
  4. It talks about the impeachment of judges and mentions the two conditions (proved misbehaviour or incapacity) in which the impeachment be exercised
  5. It also imposes restrictions on the judges of Supreme Court by restraining them from pleading or appearing before any authority within the territory of India

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[op-ed snap] Restoring order in the court

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Mains Paper 2: Polity | Structure, organization and functioning of the Executive and the Judiciary

From UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: The newscard briefly discusses the allegations by the four SC judges, against the CJI. It also talks about possible effects of these allegations on the judiciary.


Allegation by the four judges

  1. The judges has alleged that the CJI has been assigning cases, selectively to Benches of his preference, thus ignoring well established convention
  2. Those cases can have far-reaching consequences to the nation
  3. Justification for their objectionable conduct: In justification of their otherwise objectionable conduct in addressing a press conference on these issues, all of the four judges said they had been left with no other option

View of other senior (retd.) judges and law veterans on the issue

  1. Naturally, this incident has sent shock waves across the country in general and in the legal circles in particular
  2. Many former judges, eminent jurists, and senior counsel have found the conduct of the four judges to be highly disagreeable
  3. Former CJI, Justice T.S. Thakur, said that the conduct of the judges does not help resolve the issues
  4. However, a few former judges and lawyers have sought to justify the action by asserting that the judges had no other choice as their repeated pleas to the CJI
  5. They also feel that it is more important to address the issues raised by the judges rather than find fault with them for going public
  6. The opinion is divided, but no one can deny that the action of the four judges has caused serious damage to the credibility of the institution

It has set a bad precedent 

  1. Convention is that judges will never approach the media for redressal of their grievances, which is an internal matter
  2. All these developments have enabled the media (both print and electronic) to extensively hold discussions about the functioning of the judiciary, which otherwise they could not have done
  3. All this has further damaged the image of the judiciary
  4. The common man, who had absolute faith in the institution and in the impartiality of judges, is now let to suspect that court decisions may not be purely based on merit

Commendable Silence

  1. The conduct of the CJI and the Prime Minister in maintaining silence on the developments is commendable
  2. The Central government has also rightly made its position clear that this being an internal matter of the judiciary, it will not intervene
  3. The stand taken by the Bar Council of India and the Supreme Court Bar Association is also praiseworthy
  4. Both have urged the Supreme Court judges to discuss the issues and settle them amicably by themselves

The way forward

  1. The CJI cannot absolve himself of his responsibility for the present state of affairs
  2. He has to exercise his powers reasonably, without giving scope for any justifiable criticism
  3. Even in the past, there might have been some instances where there was similar criticism of assignment of cases to preferred Benches
  4. But such instances were few and far between and they were never discussed in public
  5. Let us hope that all the judges of the Supreme Court, including the CJI, will sort out their differences amicably and find a satisfactory solution to the problem

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Four SC judges air differences with CJI Misra

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Mains Paper 2: Polity | Structure, organization and functioning of the Executive and the Judiciary

From UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: It is first-of-its-kind incident in the history of Indian Judiciary.


Allegations by the four judges

  1. The revelation at the press conference came a couple of hours after a Bench led by Justice Arun Mishra heard the Loya petition
  2. Without naming any, Justice Chelameswar(one of the four judges) said that several other important cases like this had been assigned to preferred Benches over the past months

What is the issue of contention?

  1. The convention of the court demands that important cases of public interest or sensitive matters should be first heard by the CJI
  2. If the CJI is not willing for some reason to hear the case, it should be assigned to the next senior-most judge in the Supreme Court
  3. Instead of that, such cases were assigned to certain Benches and eventually given a quiet burial

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[op-ed snap] On playing National Anthem in cinema halls: Not by diktat alone

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Note4students

Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From UPSC perspective, the following things are important:

Prelims level: Prevention of Insults to National Honour Act, 1971, fundamental duties

Mains level: Judicial overreach, moral policing


Context

Playing National Anthem in cinemas optional

  1. By making it optional for cinema halls to play the national anthem before every show, the Supreme Court has at last removed the coercive element it had unfortunately introduced by an interim order in November 2016
  2. Laying down a judicial rule that the anthem must be played on certain occasions in specific places, in the absence of any statutory provision to this effect, was unnecessary and opened the court to charges of over-reach

Inter-ministerial panel to be set up

  1. Centre would set up an inter-ministerial committee to recommend regulations for the presentation of the national anthem
  2. The panel will also suggest changes in the Prevention of Insults to National Honour Act, 1971, or in the Orders relating to the anthem issued from time to time

No need to wear patriotism on sleeve

  1. One of the judges hearing petition of this case had doubted the wisdom of asking patrons of cinema to visibly demonstrate their patriotism each time they entered a theatre to watch a film, remarking that there was no need for an Indian to “wear his patriotism on his sleeve”
  2. He had asked at what point would such “moral policing” stop if it were to be prescribed that some kinds of apparel should not be worn at the movies as they could amount to showing disrespect to the national anthem

Debate on constitutional patriotism

  1. Those who contend that “constitutional patriotism” and the demonstration of respect for the national anthem require the framing of such mandatory measures cannot explain why cinema houses should be singled out
  2. Or why such rules shouldn’t apply to other halls or enclosures where meetings and performances take place
  3. This is not to suggest that symbols of national honour are undeserving of respect
  4. Neither is it to question the idea that citizens must show due respect whenever the anthem is played or the flag is displayed

What needs to be done?

  1. The prescription of the place or occasion has to be made by the executive keeping in view the concept of fundamental duties provided under the Constitution and the law
  2. In a mature democracy, there is really no need for any special emphasis, much less any judicial direction, on the occasion and manner in which citizens ought to display and demonstrate their patriotism

Way Forward

  1. As subscribers to common democratic ideals, citizens should be presumed to have a natural respect for symbols of national honour, and should not have to be made unwilling participants in a coercive project

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SC modifies order, says playing of national anthem in cinema halls is not mandatory

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Note4students

Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From UPSC perspective, the following things are important:

Prelims level: National Anthem (History, significance and related provisions), Prevention of Insult to National Honour Act of 1971

Mains level: Debate over Nationalism and Patriotism


Playing National Anthem optional

  1. The Supreme Court modified it’s November 30, 2016, interim order and made it optional for cinema halls to play the 52-second national anthem before every show
  2. SC clarified that it is not mandatory to play the anthem before screenings in cinemas
  3. It left the choice of whether to play the anthem or not to the discretion of individual cinema hall owners

Rules, if the anthem is played

  1. If the anthem is played, patrons in the hall are bound to show respect by standing up
  2. The court clarified that the exception granted to disabled persons from standing up during the anthem “shall remain in force on all occasions”
  3. The court banked on a Home Ministry order of 2015, which directs that “whenever the Anthem is sung or played, the audience shall stand to attention”

Standing up a sign of respect

  1. The court pointed out its judgment in the famed Bijoe Emmanuel versus State of Kerala case
  2. It dealt with three children belonging to the Jehovah Witnesses sect refusing to sing the anthem in the school assembly though they stood up in respect
  3. SC kept the point that standing up is indeed a sign of “proper respect” to the anthem

Report due in six months

  1. The modification will be in place till the Union government takes a final decision on the recommendations of a 12-member high-profile inter-ministerial committee regarding the occasions, circumstances and events for the solemn rendering of the anthem
  2. The ministerial panel will examine whether any amendments are necessary to the Prevention of Insult to National Honour Act of 1971 to expand or specify the meaning of “respect” to the national anthem
  3. The 1971 Act states: “Whoever intentionally prevents the singing of the Jana Gana Mana or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both

Back2Basics

Prevention of Insult to National Honour Act of 1971

  1. The Prevention of Insults to National Honour Act, 1971 is an Act of the Parliament of India which prohibits desecration of or insults to the country’s national symbols, including
  • The National Flag,
  • The Constitution,
  • Indian map and
  • The National Anthem

2. Significant amendments were added in 2003 and 2005, which prohibited many previously common uses of the flag, such as draping it over a podium during a speech, using it as decoration, or incorporating it into clothing designs

By Explains

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Can’t force govt. to frame a law: SC

Note4students

Mains Paper 2: Polity | Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies

From UPSC perspective, the following things are important:

Prelims level: The UN convention against Torture

Mains level: Comments by the SC on political compulsions


News

Comment on Political Compulsions

  1. The Supreme Court has said it respected the government’s “political compulsions” and would not compel it to ratify the UN Convention against Torture
  2. Or command it to frame a standalone anti-torture legislation

What was the case?

  1. A public interest litigation petition was filed by the former Union Law Minister Ashwini Kumar for a standalone anti-torture law
  2. A Bench, led by Chief Justice of India Dipak Misra, refrained from passing any positive order on the PIL
  3. The court disposed of the petition almost a year after entertaining it

Recent comment from government on PILs

  1. The judiciary faced a barrage of criticism for its “judicial activism”
  2. Ministers said public interest litigation petitions could not replace governance and policy decisions of the executive

Government is considering anti-torture law

  1. The Law Commission has recommended that the Centre ratify the United Nations Convention against Torture and frame a standalone anti-torture law, making the state responsible for any injury inflicted by its agents on citizens
  2. The commission has said the state should not claim immunity for the actions of its officers or agents

Background of the UN Convention against Torture

  1. Though India signed the convention in 1997, it is yet to ratify it
  2. Efforts to bring in a standalone law have failed
  3. The National Human Rights Commission has been urging the government to recognise torture as a separate crime and codify the punishment in a separate penal law

Back2basics

United Nations Convention against Torture

  1. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention against Torture (UNCAT)) is an international human rights treaty, under the review of the United Nations, that aims to prevent torture and other acts of cruel, inhuman, or degrading treatment or punishment around the world
  2. The Convention requires states to take effective measures to prevent torture in any territory under their jurisdiction, and forbids states to transport people to any country where there is reason to believe they will be tortured
  3. The text of the Convention was adopted by the United Nations General Assembly on 10 December 1984 and, following ratification by the 20th state party, it came into force on 26 June 1987.
  4. 26 June is now recognized as the International Day in Support of Victims of Torture, in honor of the Convention. Since the convention’s entry into force, the absolute prohibition against torture and other acts of cruel, inhuman, or degrading treatment or punishment has become accepted as a principle of customary international law
  5. As of August 2017, the Convention has 162 state parties

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