Judicial Reforms

Judicial Reforms

Judicial Reforms in India

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 124

Mains level : Paper 2- Judicial reforms

Context

Following are the reforms needed in the various aspects of the higher judiciary

Removing the disparity between retirement ages of HC and SC judges

  • High Court judges now retire at 62 and Supreme Court judges at 65.
  • It is high time that we did away with the disparity between the retirement ages of High Court and Supreme Court judges.
  • There is no good reason for this difference.
  • Intense pressure and competition: The obvious negative fallout of a differential retirement age simply is intense pressure and competition to make it to the top court and thus get three more years.
  • If this is done away with, several judges of mettle would prefer to be Chief Justices and senior judges in the High Courts exercising wide power of influence rather than being a junior judge on a Bench of the Supreme Court.
  • There is good work to be done in the High Courts, and we need good men there.

Create a cadre of public service for retired judges

  • SeveralSupreme Court judges focus on arbitrations after retirement.
  • A minority of judges devote themselves to public service; sadly, this is a very small minority.
  • Another lot are appointed to various constitutional posts and tribunals and commissions.
  • It would be worthwhile reform to create a cadre of public service for retired judges and from this pool make appointments to the constitutional and statutory posts and special assignments.
  • Such judges should receive the full pay and the facilities of a judge of the Supreme Court for life.
  • We should have a culture of public service for senior judges, and those who do not fit in such culture should not be a part of senior ranks.

Reform in the process of appointment of Chief Justice of India

  • No constitutional basis: It is generally assumed that the seniormost judge of the Supreme Court should be the Chief Justice of India.
  • The Constitution mandates no such thing.
  • Article 124 merely states that the President will appoint every judge of the Supreme Court, and this includes the Chief Justice, and each of these judges shall hold office until they attain the age of 65 years.
  • The requirement about appointing the seniormost judge to be the CJI was devised in the Second Judges case (1993) and the consequent Memorandum of Procedure which is an usurpation of the President’s power.
  • There is no good reason why any one particular person should have a vested interest in the top job, and we are better served by eliminating such expectation.
  • Let all serve equally under the constitutional throne for the entire length of their tenure.

But who then shall be the CJI?

  • As per the Constitution the judges of the High Court, senior advocates and distinguished jurists are eligible for the appointment as the judge of the Supreme Court.
  • Chief Justice of HC: When a serving CJI retires, his successor should be the best reputed Chief Justice of a High Court who has proved himself worthy both in judicial office as well as administrative leadership and has those qualities of heart and head which mark a good leader.
  • The same process is followed in the appointment of the Chief Justice of the United States Supreme Court.
  • Security of tenure: The appointee should have a clear three-year term.
  • He should not function as the primus super pares — calling the shots and having their unfettered way.
  • He should instead function in a true collegiate manner, especially in regard to the roster of allotment of cases, especially the sensitive ones, and appointments to the Supreme Court and High Courts and other important matters of judicial and administrative importance.

Conclusion

Though there are several issues that need reforms in the higher judiciary, the above reforms can serve as the precursor to the other reforms to come.

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Judicial Reforms

Back in news: Article 142 of the Constitution

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 142

Mains level : Read the attached story

The Supreme Court has crafted a victory for a disabled student by using its special powers under Article 142 to declare the successful completion of her Master of Designs course from the Indian Institute of Technology (IIT).

What is Article 142?

Article 142 titled ‘Enforcement of decrees and orders of the Supreme Court and orders as to discovery, etc.’ has two clauses:

[1] Article 142(1)

  • The Supreme 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.
  • Any decree so passed or order so made shall be enforceable throughout the territory of India.
  • It may be in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

[2] Article 142(2)

  • The Supreme Court shall have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

Important instances when Article 142 was invoked

  • Bhopal Gas tragedy case: The SC awarded a compensation of $470 million to the victims and held that “prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142.”
  • Babri Masjid demolition case: The Supreme Court ordered framing of a scheme by the Centre for formation of trust to construct Ram Mandir at the Masjid demolition site in Ayodhya.
  • Liquor sale ban case: The Supreme Court banned liquor shops within a distance of 500 metres from National as well as State highways in order to prevent drunken driving.
  • Ex-PM Assassin case: In the case of Perarivalan, the Supreme Court invoked Article 142(1) under which it was empowered to pass any order necessary to do complete justice in any matter pending before it.

Try this PYQ from CSP 2019:

Q.With reference to the Constitution of India, prohibitions or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on the constitutional powers under Article 142. It could mean which one of the following?

 

(a) The decisions taken by the Election Commission of India while discharging its duties cannot be challenged in any court of law.

(b) The Supreme Court of India is not constrained in the exercise of its powers by laws made by the Parliament.

(c) In the event of grave financial crisis in the country, the President of India can declare Financial Emergency without the counsel from the Cabinet.

(d) State Legislatures cannot make laws on certain matters without the concurrence of Union Legislature.

 

Post your answers here.
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Judicial Reforms

Issues with Frivolous PIL Petitions

Note4Students

From UPSC perspective, the following things are important :

Prelims level : PIL

Mains level : Issues with PIL

A Public Interest Litigation (PIL) petitioner in the Supreme Court barely escaped having to pay ₹18 lakh for indulging in a “luxury litigation”.

What is the news?

  • A Supreme Court Bench of Justice B.R. Gavai and Hima Kohli initially asked the litigant to pay ₹18 lakh, that is, ₹1 lakh for every one of the 18 minutes the case took up.
  • However, the court later, in its order, slashed the amount to ₹2 lakh on the request of the litigant’s counsel.

Why did the apex court got disgusted?

  • The bench criticized the highly derogatory practice of filing frivolous petitions encroaching valuable judicial time.
  • This time can otherwise be utilised for addressing genuine concerns.

What is Public Interest Litigation (PIL)?

  • PIL refers to litigation undertaken to secure public interest and demonstrates the availability of justice to socially-disadvantaged parties.
  • It was introduced by Justice P. N. Bhagwati in 1979.
  • It is the chief instrument through which judicial activism has flourished in India.
  • It is suited to the principles enshrined in Article 39A[a] of the Constitution to protect and deliver prompt social justice with the help of law.

How was it introduced?

  • PIL is a relaxation on the traditional rule of locus standi.
  • Before 1980s the judiciary and the Supreme Court of India entertained litigation only from parties affected directly or indirectly by the defendant.
  • It heard and decided cases only under its original and appellate jurisdictions.
  • However, the Supreme Court began permitting cases on the grounds of PIL, which means that even people who are not directly involved in the case may bring matters of public interest to the court.
  • It is the court’s privilege to entertain the application for the PIL.

Filing a PIL

Any citizen can file a public case by filing a petition:

  • Under Art 32 of the Indian Constitution, in the Supreme Court
  • Under Art 226 of the Indian Constitution, in the High Court
  • Under 133 of the Criminal Procedure Code, in a Magistrate’s Court

Parties against whom PILs can be filed

  • A PIL may be filed against state government, central government, municipal authority, private party.
  • Also, private person may be included in PIL as ‘Respondent’, after concerned of state authority.
  • g. a private factory in Mumbai which is causing pollution then PIL can be filed against the government of Mumbai, state pollution central board including that private factory of Mumbai.

Importance of PIL

  • PIL gives a wider description to the fundamental rights to equality, life and personality, which is guaranteed under part III of the Constitution of India.
  • It also functions as an effective instrument for changes in the society or social welfare.
  • Through PIL, any public or person can seek remedy on behalf of the oppressed class by introducing a PIL.

Issues with PIL

  • Off late, PILs have become a tool for publicity.
  • People file frivolous petitions which result in the wastage of time of the courts.
  • People have used them with a political agenda as well.
  • They unnecessarily burden the judiciary.
  • Even if the petition is eventually dismissed, the courts spend time and effort on them before dismissing them.

How do frivolous petitions waste time?

  • At present, only judges have the power to dismiss a petition.
  • The Registry of the SC or HC only ensures that the technical requirements of filing a petition are fulfilled.
  • As a result of which petitions are admitted to the court irrespective of the merits of the case.

Way forward: Preventing frivolous PILs

The Supreme Court had issued eight directions in its Balwant Singh Chaufal Judgment to help constitutional courts separate genuine PIL petitions from the barmy ones:

  • It had asked every High Court to frame its own rules to encourage bona fide PIL petitions and curb the motivated ones
  • Verifying the credentials of the petitioner before entertaining the plea
  • Checking the correctness of the contents
  • Ensuring the petition involves issues of “larger public interest, gravity and urgency” which requires priority
  • Ensuring there is no personal gain, or oblique motive behind the PIL
  • Ensuring that it is aimed at redressal of genuine public harm or public injury

Conclusion

  • PIL petitions have had a beneficial effect on the Indian jurisprudence and has alleviated the conditions of the citizens in general.
  • Such petitions bring justice to people who are handicapped by ignorance, indigence, illiteracy.

 

 

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Digitization of Judiciary

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Lok Adalat

Mains level : Paper 2- Use of technology by judiciary

Context

The Indian judiciary has increasingly started using technology and the change is reflected in the legal profession in general as well.

Increasing use of digital technology in the judiciary

  • With the digitisation of judicial records and the establishment of e-courts, significant developments had taken place in 2020.
  • Use of technology to better utilise potential: It is imperative that the use of digital technology be discussed to better utilise its potential, particularly in terms of digitisation of court records, e-filing of cases and their virtual hearing, live streaming of court proceedings.

Background

  • In India, e-governance in the field of administration of justice began in the late 1990s, but it accelerated after the enactment of the Information and Technology Act, 2000.
  • In the year of 2006, e-courts were launched as a part of the National e-Governance Plan (NEGP).

Digitisation of case files

  • When he was the Chief Justice of Allahabad HC, Justice D Y Chandrachud had conceptualised and initiated the project to digitise approximately one crore case files in one year.
  • Saving of space and preservation of old documents: This was necessary as not only was a large space required to store so many files, it was also becoming difficult to manually preserve the decades-old documents.
  • Traceability: Another purpose was to ensure that these files are traceable electronically as and when required.
  • It has also been observed that cases are adjourned simply because affidavits filed several years ago were not restored with the record or were not traceable.
  • Once the documents are digitised and e-filed by counsels, at least the cases would not get adjourned by the courts on this account.
  • Reducing the risk of missing court records: In State of Uttar Pradesh v. Abhay Raj Singh, it was held by the Supreme Court that if court records go missing and re-construction is not possible, the courts are bound to set aside the conviction.
  • Saving of time: With digitisation, it will take much less time for the lower courts to transmit the records as and when called for.
  • The lawyers benefit because they or their staff are no longer required to visit the reporting sections or other sections of the court to know about the status of their cases.
  • This has been sought to be implemented by the e-Committee of the Supreme Court by issuing directions to ensure that e-filing of cases/petitions by state governments in all matters be made mandatory from January 1, 2022.

Scope for virtual hearing in certain cases

  • Cases related to matrimonial issues and domestic violence bounced cheques, motor accident compensation referred to mediation centres and lok adalats could be included in the list of cases fit for disposal through the virtual hearing.
  • The hearing of matrimonial cases through video-conferencing was approved by the Supreme Court in the matter of Krishna Veni Nagam v Harish Nagam (2017).
  • The direction was short-lived and a coordinate bench of the Supreme Court in the case of Santhini v Vijaya Venkatesh (2018) referred the matter for reconsideration before a larger bench.
  • Virtual hearings cannot be a substitute for physical court hearings in all cases.
  • However, in appropriate cases and certain categories of cases as identified by the court administration in consultation with the members of the Bar, virtual hearing should be made mandatory.

Live streaming of cases

  • In 2018, the Supreme Court allowed the live-streaming of cases of constitutional and national importance on the basis of the judgment in Swapnil Tripathi.
  • Step towards transparency: The livestreaming of court proceedings is a step towards ensuring transparency and openness.
  • While several reservations were expressed against it, the Gujarat HC in July 2021 became the first court in the country to livestream its proceedings.
  • Its example was followed by other HCs like Karnataka, Odisha, Madhya Pradesh and Patna.

Challenges

  • Internet connectivity issues and the need for a well-equipped space where lawyers can conduct their cases are some of the major problems requiring attention.
  • Political will and the support of judges and lawyers are also necessary.
  • Awareness and training: Judges, court staff and lawyers are not well-versed with digital technology and its benefits.
  • The need of the hour is for them to be made aware of these and receive adequate training.

Conclusion

Adoption of technology will bring drastic changes in the field of law and will transform the Court system.

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India’s judiciary and the slackening cog of trust

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Paper 2- Judicial corruption and pendency

Context

Departures from substantive and procedural justice need deep scrutiny as the fallout could severely imperil governance.

Judicial corruption in India in lower judiciary

  • According to Transparency International (TI 2011), 45% of people who had come in contact with the judiciary between July 2009 and July 2010 had paid a bribe to the judiciary.
  • The most common reason for paying the bribes was to “speed things up”.
  • The Asian Human Rights Commission (AHRC) (April 2013) estimates that for every ₹2 in official court fees, at least ₹ 1,000 is spent in bribes in bringing a petition to the court.
  • Freedom House’s ‘Freedom in the World 2016 report for India’ states that “the lower levels of the judiciary in particular have been rife with corruption” (Freedom House 2016).
  • Allegations of corruption against High Court judges abound.
  • Worse, there are glaring examples of anti-Muslim bias, often followed by extra-judicial killings by the police.
  • Anti-Muslim bias alone may not result in erosion of trust but if combined with unprovoked and brutal violence against them (e.g., lynching of innocent cattle traders) is bound to.

Forms of judicial corruption

  • Pressure and bribery: Judicial corruption takes two forms: political interference in the judicial process by the legislative or executive branch, and bribery.
  • Despite the accumulation of evidence on corrupt practices, the pressure to rule in favour of political interests remains intense.
  • Court officials coax bribes for free services, and lawyers charge additional “fees” to expedite or delay cases.

Case pendency

  • According to the National Judicial Data Grid, as of April 12, 2017, there are 24,186,566 pending cases in India’s district courts, of which 2,317,448 (9.58%) have been pending for over 10 years, and 3,975,717 (16.44%) have been pending for between five and 10 years.
  • Vacancies: As of December 31, 2015, there were 4,432 vacancies in the posts of [subordinate court] judicial officers, representing about 22% of the sanctioned strength.
  • In the case of the High Courts, 458 of the 1,079 posts, representing 42% of the sanctioned strength, were vacant as of June 2016.
  • Thus, severe backlogging and understaffing persisted, as also archaic and complex procedures of delivery of justice.

Understanding the substantive and procedural justice

  • Substantive justice is associated with whether the statutes, case law and unwritten legal principles are morally justified e.g., freedom to pursue any religion,
  • Procedural justice is associated with fair and impartial decision procedures.
  • Outdated laws: Many outdated/dysfunctional laws or statutes have not been repealed because of the tardiness of legal reform both at the Union and State government levels.
  • Worse, there have been blatant violations of constitutional provisions.
  • The Citizenship (Amendment) Act (December 2019) provides citizenship to — except Muslims — Hindus, Buddhists, Sikhs, Jains, Parsis and Christians who came to India from Pakistan, Bangladesh and Afghanistan on or before December 31, 2014.
  • But this goes against secularism and is thus a violation of substantive justice.
  • Alongside procedural delays, endemic corruption and mounting shares of under-trial inmates with durations of three to five years point to stark failures of procedural justice and to some extent of substantive justice.

Conclusion

Exercise of extra-constitutional authority by the central and State governments, weakening of accountability mechanisms, widespread corruption in the lower judiciary and the police, with likely collusion between them, the perverted beliefs of the latter towards Muslims, other minorities and lower caste Hindus, a proclivity to deliver instant justice, extra-judicial killings, filing FIRs against innocent victims of mob lynching have left deep scars on the national psyche.

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Governments ignoring court orders: CJI

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Contempt of Court

Mains level : Read the attached story

The CJI pointed to how courts had to deal with the new problem of “contempt petitions” triggered by the “deliberate inaction” of governments that chose to ignore judgments and orders.

What did the CJI say?

  • The contempt petitions are a new category of burden on the courts, which is a direct result of the defiance by the governments.
  • Such actions show sheer defiance of governments towards judicial pronouncements.
  • There is visible inclination to pass off the responsibility of decision-making to courts.
  • The legislature’s work show ambiguity, lack of foresight and public consultation before making laws have led to docket explosion.

What is Contempt of the Court?

  • Contempt of court is the offense of being disobedient to or disrespectful toward a court of law and its officers in the form of behaviour that opposes or defies the authority, justice, and dignity of the court.
  • There are broadly two categories of contempt: being disrespectful to legal authorities in the courtroom, or wilfully failing to obey a court order.

How did the concept came 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 wilfully 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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FASTER digital platform for Judiciary

Note4Students

From UPSC perspective, the following things are important :

Prelims level : FASTER Platform, SUPACE

Mains level : Speedy disposal of cases

‘FASTER’, an abbreviation of ‘Fast and Secured Transmission of Electronic Records’, a digital platform was formally launched by Chief Justice of India (CJI) N.V. Ramana.

What is FASTER?

  • The FASTER system proposes transmission of e-authenticated copies of the interim orders, stay orders, bail orders and record of proceedings to the duty-holders for compliance and due execution, through a secured electronic communication channel.
  • These orders may vary from stay of execution of a person to freeze on the demolition of a slum to bail orders for undertrial prisoners.
  • The idea stemmed from a case reported about several prisoners in the Agra Jail forced to remain behind bars for three days after the hard copies of the order had not reached the prison officials.

Benefits offered

  • FASTER would aid the cause of quick and effortless justice.
  • The timely delivery of the court’s orders to the authorities would also prevent unnecessary arrests and custody of people who have already been granted anticipatory bail.
  • For smooth transmission of court’s orders and effective implementation of Article 21, Right to Life, such a system was the need of the hour.

 

Also read:

[RSTV Archive] Judiciary & Artificial Intelligence

 

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SC averse to ‘Sealed Cover Jurisprudence’

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Sealed Cover Jurisprudence

Mains level : Not Much

Two separate Benches of the Supreme Court tore into the “sealed cover jurisprudence” practiced by the government in courts.

What is the news?

  • The Supreme Court has allowed the Malayalam TV news channel MediaOne to resume broadcast, nearly six weeks after the government revoked its security clearance forcing it to shut down.
  • The channel was given security clearance by the MHA in February 2011 following which it obtained a licence to operate the channel in September 2011.
  • On January 5 this year, the channel was issued notice to revoke permission on the ground of “national security and public order”.
  • In February 2020, the channel’s licence was briefly suspended by MHA following its coverage of the Delhi riots.

What did the court observe?

  • The court was critical about how the government and its agencies file reports in sealed envelopes directly in court without sharing the contents with the opposite party.
  • Being kept in the dark about the material contained in a sealed cover report, the petitioners are crippled in mounting a defence, not knowing what they are supposed to defend against.
  • At times, their cases, mostly involving fundamental rights such as personal liberty, are dismissed on the basis of the secret contents ensconced in the sealed covers.

What is Sealed Cover Jurisprudence?

  • It is a practice used by the Supreme Court and sometimes lower courts, of asking for or accepting information from government agencies in sealed envelopes that can only be accessed by judges.
  • A specific law does not define the doctrine of sealed cover.
  • The Supreme Court derives its power to use it from Rule 7 of order XIII of the Supreme Court Rules and Section 123 of the Indian Evidence Act of 1872.

Nature of the power: Upholding Secrecy

  • If the Chief Justice or court directs certain information to be kept under sealed cover or considers it of confidential nature, no party would be allowed access to the contents of such information.
  • There is an exception to this if the Chief Justice himself orders that the opposite party be allowed to access it.
  • It also mentions that information can be kept confidential if its publication is not considered to be in the interest of the public.
  • As for the Evidence Act, official unpublished documents relating to state affairs are protected and a public officer cannot be compelled to disclose such documents.

Grounds of such secrecy

Other instances where information may be sought in secrecy or confidence is when its publication:

  1. Impedes an ongoing investigation
  2. Details which are part of the police’s case diary or
  3. Breaches the privacy of an individual

Prominent cases of sealed jurisprudence

Sealed cover jurisprudence has been frequently employed by courts in the recent past.

(1) Rafale Deal

  • In the case pertaining to the controversial Rafale fighter jet deal, a Bench headed by CJI Ranjan Gogoi in 2018, had asked the Centre to submit details related to deal’s decision making and pricing in a sealed cover.
  • This was done as the Centre had contended that such details were subject to the Official Secrets Act and Secrecy clauses in the deal.

(2) Bhim Koregaon Case

  • In the Bhima Koregaon case, in which activists were arrested under the Unlawful Activities Prevention Act.
  • The Supreme Court had relied on information submitted by the Maharashtra police in a sealed cover.

Criticism of such acts

  • Critics of this practice contend that it is not favorable to the principles of transparency and accountability of the Indian justice system.
  • It stands in contrast to the idea of an open court, where decisions can be subjected to public scrutiny.
  • It is also said to enlarge the scope for arbitrariness in court decisions, as judges are supposed to lay down the reasoning for their decisions.
  • Besides, it is argued that not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication.

How has the judiciary responded to this?

  • In the 2019 judgment in the case of P Gopalakrishnan V. The State of Kerala, the Supreme Court had said that disclosure of documents to the accused is constitutionally mandated.
  • This is possible even if the investigation is ongoing and said documents may lead to breakthroughs in the investigation.

 

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Sealed Cover Jurisprudence

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Sealed Cover Jurisprudence

Mains level : Fair trial issue

Some Parliamentarians and prominent figures have issued a statement expressing discontent over the Kerala High Court’s verdict upholding the transmission ban on a Malayalam news channel.

What is the news?

  • The channel went off air as the Centre suspended its telecast over “security reasons”.
  • The High Court’s decision was based entirely on the assessment of documents presented by the MHA in a sealed cover.
  • The contents of which were not shared with the news channel.

What is Sealed Cover Jurisprudence?

  • It is a practice used by the Supreme Court and sometimes lower courts, of asking for or accepting information from government agencies in sealed envelopes that can only be accessed by judges.
  • A specific law does not define the doctrine of sealed cover.
  • The Supreme Court derives its power to use it from Rule 7 of order XIII of the Supreme Court Rules and Section 123 of the Indian Evidence Act of 1872.

Nature of the power: Upholding Secrecy

  • If the Chief Justice or court directs certain information to be kept under sealed cover or considers it of confidential nature, no party would be allowed access to the contents of such information.
  • There is an exception to this if the Chief Justice himself orders that the opposite party be allowed to access it.
  • It also mentions that information can be kept confidential if its publication is not considered to be in the interest of the public.
  • As for the Evidence Act, official unpublished documents relating to state affairs are protected and a public officer cannot be compelled to disclose such documents.

Grounds of such secrecy

Other instances where information may be sought in secrecy or confidence is when its publication:

  1. Impedes an ongoing investigation
  2. Details which are part of the police’s case diary or
  3. Breaches the privacy of an individual

Prominent cases of sealed jurisprudence

Sealed cover jurisprudence has been frequently employed by courts in the recent past.

(1) Rafale Deal

  • In the case pertaining to the controversial Rafale fighter jet deal, a Bench headed by CJI Ranjan Gogoi in 2018, had asked the Centre to submit details related to deal’s decision making and pricing in a sealed cover.
  • This was done as the Centre had contended that such details were subject to the Official Secrets Act and Secrecy clauses in the deal.

(2) Bhim Koregaon Case

  • In the Bhima Koregaon case, in which activists were arrested under the Unlawful Activities Prevention Act.
  • The Supreme Court had relied on information submitted by the Maharashtra police in a sealed cover.

Criticism of such acts

  • Critics of this practice contend that it is not favorable to the principles of transparency and accountability of the Indian justice system.
  • It stands in contrast to the idea of an open court, where decisions can be subjected to public scrutiny.
  • It is also said to enlarge the scope for arbitrariness in court decisions, as judges are supposed to lay down reasoning for their decisions.
  • Besides, it is argued that not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication.

How has judiciary responded to this?

  • In the 2019 judgment in the case of P Gopalakrishnan V. The State of Kerala, the Supreme Court had said that disclosure of documents to the accused is constitutionally mandated.
  • This is possible even if the investigation is ongoing and said documents may lead to breakthrough in the investigation.

 

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Judicial Reforms

A case for a more federal judiciary

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Federal structure

Mains level : Paper 2: Federal judiciary

Context

The article examines the need to strengthen the federal nature of our judiciary.

Federalism in India

  • India is a union of States.
  • Part of basic structure: The Supreme Court of India has held that the federalist nature of our country is part and parcel of the basic structure of the Constitution.
  • A midpoint between unitarism and confederalism: Federalism is a midpoint between unitarism which has a supreme center, to which the States are subordinate, and confederalism wherein the States are supreme and are merely coordinated by a weak center.
  • Role of judiciary: An integral requirement of a federal state is that there be a robust federal judicial system that interprets this constitution, and therefore adjudicates upon the rights of the federal units and the central unit, and between the citizen and these units.

Nature of judiciary in India: Federal judiciary

  • The federal judicial system comprises the Supreme Court and the High Court in the sense that it is only these two courts that can adjudicate the rights of federal units.
  • The Indian Federation though a dual polity has no dual judiciary at all.
  • Single integrated judiciary: The High Courts and the Supreme Court form one single integrated judiciary having jurisdiction and providing remedies in all cases arising under the constitutional law, the civil law, or the criminal law.

Equality of power of High Court judges and Supreme Court judges

  • The Indian Constitution envisaged the equality of power of High Court judges and Supreme Court judges, with a High Court judge not being a subordinate of a Supreme Court judge.
  • Superior only in the appellate sense: The Supreme Court has, on many occasions, reiterated the position that the Supreme Court is superior to the High Court only in the appellate sense.
  •  A delicate balance is required to be maintained between the Supreme Court and the High Courts in order for the constitutional structure to work.
  • This balance existed from Independence onwards, until the 1990s. Since then, however, it has been tilting in favor of the central court. 

Erosion of standing of High Court

  • In recent years, three specific trends have greatly eroded the standing of the High Court, leading to an imbalance in the federal structure of the judiciary.
  • 1] Collegium system: The Supreme Court of India today, by playing the role of a collegium, effectively wields the power to appoint a person as a judge to a High Court or to transfer him or her to another High Court, or to appoint (or delay the appointment) of a sufficiently senior High Court judge as chief justice or as a judge of the Supreme Court
  • The practical impact of this in the power dynamic between a High Court judge and a Supreme Court judge leaves little to be said or imagined.
  • 2] Parallel judicial systems: Successive governments have passed laws that create parallel judicial systems of courts and tribunals which provide for direct appeals to the Supreme Court, bypassing the High Courts.
  • These laws lead to the creation of parallel hierarchies of courts and tribunals, whether it be the Competition Commission, or the company law tribunals, or the consumer courts
  • In all these cases, the High Courts are bypassed.
  • Laws have been drafted such that the High Court has no role to play and the Supreme Court directly acts as an appellate court
  • 3] Interventionist Supreme Court: The Supreme Court has been liberal in entertaining cases pertaining to trifling matters.
  • This has inevitably led to the balance tipping in favor of the centralization of the judiciary.
  • An aggressively interventionist Supreme Court leads many to approach it directly as a panacea for all ills befalling the nation.
  • We see the Supreme Court interfering in matters which are clearly of local importance, having no constitutional ramifications.

Impact on the federal structure

  • The greater the degree of centralization of the judiciary, the weaker the federal structure.
  • In the United States, empirical research shows that the U.S. Supreme Court is far more likely to strike down a state statute as unconstitutional than a federal statute.
  • Courts face much weaker constraints when they strike down state legislation, especially state laws that are disapproved of by national political majorities.
  •  In Nigeria, a similar federal country, research has shown that the Supreme Court favours the jurisdiction of the central government over the State units.

Conclusions

  • Federalism is a midpoint between unitarism which has a supreme centre, to which the States are subordinate, and confederalism wherein the States are supreme, and are merely coordinated by a weak centre.
  • An integral requirement of a federal state is that there be a robust federal judicial system which interprets the constitution
  • The federal judicial system comprises the Supreme Court and the High Court in the sense that it is only these two courts which can adjudicate the above rights.

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Judicial Reforms

Issues related to Tribunal

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Tribunals, NCLT

Mains level : Issues with appointments in Tribunals

The Supreme Court has warned that even after the judicial intervention, the government made abrupt efforts to fill vacancies in tribunals some time back and nothing after that.

What is the case?

  • The apex court said that it is getting requests for extension of time for NCLT (Nation Company Law Tribunal) matters, etc.
  • Some knee-jerk appointments took place and nothing after that.
  • The govt earlier had introduced Tribunal Reforms Bill in 2021, which abolishes nine appellate tribunals and revives provisions of an ordinance struck down by the Supreme Court.

What are Tribunals?

  • Tribunals are specialist judicial bodies that decide disputes in a particular area of law.
  • They are institutions established for discharging judicial or quasi-judicial duties.
  • The objective may be to reduce the caseload of the judiciary or to bring in subject expertise for technical matters.

Do you know?

The Income Tax Appellate Tribunal was established as the first Tribunal in India back in 1941.

Creation of Tribunals

In 1976, Articles 323A and 323B were inserted in the Constitution of India through the 42nd Amendment.

  • Article 323A: This empowered Parliament to constitute administrative Tribunals (both at central and state level) for adjudication of matters related to recruitment and conditions of service of public servants.
  • Article 323B: This specified certain subjects (such as taxation and land reforms) for which Parliament or state legislatures may constitute tribunals by enacting a law.
  • In 2010, the Supreme Court clarified that the subject matters under Article 323B are not exclusive, and legislatures are empowered to create tribunals on any subject matters under their purview as specified in the Seventh Schedule.

SC stance on Tribunals

  • The Supreme Court has ruled that tribunals, being quasi-judicial bodies, should have the same level of independence from the executive as the judiciary.
  • Key factors include the mode of selection of members, the composition of tribunals, and the terms and tenure of service.
  • In order to ensure that tribunals are independent of the executive, the Supreme Court had recommended that all administrative matters be managed by the law ministry rather than the ministry associated with the subject area.
  • Later, the Court recommended the creation of an independent National Tribunals Commission for the administration of tribunals.
  • These recommendations have not been implemented.

Issues with tribunals

  • Pendency: Whereas the reasoning for setting up some tribunals was to reduce the pendency of cases in courts, several tribunals are facing the issue of a large caseload and pendency.
  • No appointment: With over 240 vacancies in key tribunals where thousands of cases were pending, not a single appointment had been made by the government in any of these tribunals till date.

Back2Basics: National Company Law Tribunal

  • The NCLT is a quasi-judicial body that adjudicates issues relating to Indian companies.
  • The tribunal was established under the Companies Act 2013 in 2016 and is based on the recommendation of the V. Balakrishna Eradi Committee.
  • All proceedings under the Companies Act, including proceedings relating to arbitration, compromise, arrangements, reconstructions and the winding up of companies shall be disposed off by the NCLT.
  • The NCLT bench is chaired by a Judicial member who is supposed to be a retired or a serving High Court Judge and a Technical member who must be from the Indian Corporate Law Service, ICLS Cadre.
  • It is the adjudicating authority for the insolvency resolution process of companies and limited liability partnerships under the Insolvency and Bankruptcy Code, 2016.

 

 

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Judicial Reforms

Comprehensive Amendment of Criminal Laws

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Criminal laws mentioned

Mains level : Need for reforming criminal justice system

The Central government has initiated the process for comprehensive amendment of criminal laws in India in consultation with all stakeholders

Criminal Laws in India

Indian criminal laws are divided into three major acts:

  1. Indian Penal Code, 1860: It is a comprehensive code intended to cover all substantive aspects of criminal law.
  2. Code of Criminal Procedure, 1973: CrPC defines the rules with which substantive laws can be enforced.
  3. Indian Evidence Act, 1872: It contains a set of rules and allied issues governing the admissibility of evidence in the Indian courts of law.

Other laws

Besides these major acts, special Criminal Laws are also passed by the Indian Parliament which includes:

  • Narcotic Drugs and Psychotropic Substances Act
  • Prevention of Corruption Act
  • Food Adulteration Act
  • Dowry Prohibition Act
  • The Defence of India Act, etc.

Issues with these laws

  • Colonial ideas prevail in the code.
  • Some laws don’t reflect the aspirations of India’s liberal Constitution
  • It does not recognize the individual agency of citizens of free India
  • Too many laws promote patriarchal attitudes, biased against women
  • Sedition laws are misused by the state
  • Tech crimes, cyber crimes, sexual offenses need to be defined
  • Risk of excessive policing, which leads to harassment of people.
  • Need to harmonize statute books with court rulings, which have often expanded the rights of people.
  • Some provisions are disadvantageous for the underprivileged who are trapped in jail for long but favour the powerful, who get bail very easily
  • Influence of media trials on the judiciary while using the IPC.

Why amend them?

  • The evolution of criminal laws is a continuous process.
  • They need to be made in accordance with the contemporary needs and aspirations of people.
  • Malimath Committee has called for reform in India’s criminal justice system.

Progress made to date

  • The entire procedure is a long-drawn-out one and no time limit can be fixed or given for this legislative process.
  • Legislation of such laws is a complex and lengthy exercise given the spectrum of divergent views of stakeholders.
  • The Home Ministry is seeking suggestions from various stakeholders and judicial luminaries in this regard.

 

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‘Indianizing’ the Legal System and SC’s Views

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Judicial Reforms

At least two Supreme Court judges have in the past few months openly expressed the need to “Indianize” the legal system.

What is the news?

  • This week, Justice S. Abdul Nazeer underscored the need to embrace the great legal traditions as per Manu, Kautilya, Katyayana, Brihaspati, Narada, Parashara, Yajnavalkya and other legal giants of ancient India.
  • Continued neglect of their great knowledge and adherence to alien colonial legal system is detrimental to the goals of our Constitution and against our national interests, he said.
  • He emphasized the need for Indianization of the legal system to decolonize the Indian legal system.
  • He concluded that this colonial legal system is not suitable for the Indian population.

Background of the case

Then CJI P.N. Bhagwati in the M.C. Mehta Case way back in 1986 has said that-

  • We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country.
  • We no longer need the crutches of a foreign legal order.
  • We are certainly prepared to receive light from whatever source it comes from, but we have to build up our own jurisprudence.

Indianization of Judiciary

  • Last month, CJI N.V. Ramana called for the “Indianization” of the legal system to provide greater access to justice to the poor as the “need of the hour”.
  • CJI emphasized this as an adaptation to the practical realities of our society and localize our justice delivery systems.
  • For example, parties from a rural place fighting a family dispute are usually made to feel out of place in the court, the CJI clarified.

Major suggestions by CJI:

(A) Simplification

  • The simplification of justice delivery should be our pressing concern.
  • It is crucial to make justice delivery more transparent, accessible and effective.
  • Procedural barriers often undermine access to justice.
  • The Chief Justice said both judges and lawyers have to create an environment which is comforting for the litigants and other stakeholders.

(B) Alternate dispute mechanisms

  • The CJI said alternate dispute mechanisms like mediation and conciliation would go a long way in reducing pendency, unnecessary litigation and save resources.

Major suggestions by CJI:

(A) Simplification

  • The simplification of justice delivery should be our pressing concern.
  • It is crucial to make justice delivery more transparent, accessible and effective.
  • Procedural barriers often undermine access to justice.
  • The Chief Justice said both judges and lawyers have to create an environment that is comforting for the litigants and other stakeholders.

(B) Alternate dispute mechanisms

  • The CJI said alternate dispute mechanisms like mediation and conciliation would go a long way in reducing pendency, unnecessary litigation and save resources.

Recent moves of Indianization

  • Supreme Court judgments show that the Indian legal system had made an early start at consciously getting rid of the “crutches” of colonial influence.

(1) General principles laid by the SC

  • The evolution of laws in India has been through legislation and the binding precedents of the Supreme Court under Article 141 of the Constitution.
  • Article 142 of the Constitution of India deals with the Enforcement of decrees and orders of the Supreme Court.

(2) Public Interest Litigation

  • The public interest litigation mechanism is truly Indian.

(3) Reference to Indian texts

  • Several judgments since the 1980s refer to the works of Manu and Kautilya.
  • In the privacy judgment, Justice S.A. Bobde (retired), referred to how “even in the ancient and religious texts of India, a well-developed sense of privacy is evident”.
  • He mentions that Kautilya’s “Arthashastra prohibits entry into another’s house, without the owner’s consent”.

Issues with Ancient Texts

  • In the Sabarimala Case, the court pointed to the Manusmriti to observe that in these “ancient religious texts and customs, menstruating women have been considered as polluting the surroundings”.
  • It went on to hold that practices that legitimize menstrual taboos, due to notions of purity and pollution, limit the ability of menstruating women to attain the freedom of movement and the right of entry to places of worship.

Way forward

  • It is time for courts to wake up from their colonial stupor and face the practical realities of Indian society.
  • Rules and procedures of justice delivery should be made simple.
  • The ordinary, poor, and rural Indian should not be scared of judges or the courts.

 

 

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Plea in Supreme Court seeks ‘Uniform Judicial Code’ for HCs

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Uniform Judicial Code

A petition was filed in the Supreme Court to implement a “Uniform Judicial Code (UJC)” for High Courts across the country to adopt a uniform set of procedures, especially for virtual courts.

What is the PIL about?

  • The petition urged the apex court to take appropriate steps to adopt uniform procedure for case registration, use common judicial terms, phrases and abbreviations and make the court fee uniform.
  • It has, alternatively, sought a direction to the Law Commission of India to prepare a report in consultation with the HC in this regard.

Why need UJC?

  • Matter of Equality: Judicial equality is a matter of constitutional right, its differentiation based on the jurisdiction of courts violates the right to equality.
  • Different nomenclatures: All the 25 High Courts have different usage of the phrases when it comes to identifying different cases.
  • Diverse procedures: The PIL plea highlighted how different High Courts follow different procedures in matters pertaining to virtual courts, started during the pandemic.
  • Different fees: Unequal court fees in different states discriminate among citizens based on their place of birth and residence. Moreover, it promotes regionalism; hence it is a clear violation of Articles 14-15.

Way forward: Bringing in digitized Judiciary systems

  • The judiciary needs to develop a well-defined framework supported by an accessible platform and direct e-court system in India.
  • It also needs to harp on advanced infrastructure to run an e-court system that eradicates the digital divide, simultaneously upping judicial functioning.
  • While the digitized judicial systems give some semblance of convenience for the people who interact with the court, digitization also brings threats of intrusion etc.

 

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Judicial Reforms

Judges cannot be shielded from citizens’ questions

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Paper 2- Judicial pendency

Context

Recently, the Chief Justice of India, in his own mild way, protested against the attack on judges. One can understand his pain and agony, but he too knows that judges do not, and should not live in ivory towers.

Questioning and analysing actions of the judiciary

  • As the judiciary is one of the pillars of democracy, and the Constitution entrusts judges with the task of protecting the constitutional rights of the people, especially the right to life and liberty, the consumer of justice has every right, and would be fully justified in critically examining, and commenting upon each and every word of the judges spoken or written, howsoever unpalatable it may be.
  • It appears that it is in the above spirit that MP Shashi Tharoor, speaking in Parliament on the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill said that the judiciary had failed to stem the tide of militant majoritarianism.
  • He alleged that the “judiciary’s inaction almost always favours those in power”. 
  • He has raised pertinent questions, and has brought out the glaring failings of the judiciary in matters concerning the protection of the constitutional rights of citizens. 
  • Pendency of important cases such as the abrogation of Article 370 of the Constitution, the Citizenship Amendment Act, electoral bonds, and many petitions under the preventive detention laws highlights this issue.

Issues in functioning of collegium system

  • As regards the functioning of the collegium system, judges are transferred without any seeming justification, and in some cases re-transferred, justifying neither their initial transfer nor the re-transfer.
  • Some elevations of judges raise eyebrows, while some are ignored.
  • Should the collegium not be more transparent than it has been in the past in the matter of the elevation and transfers of judges?

Conclusion

Judges cannot be shielded from citizens’ questions. After all, as a consumer of justice, the citizen has a right to know.

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In news: Law Commission of India

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Law Commission of India

Mains level : Role of Law Commission in Legal Reforms

The Government has informed the Supreme Court that the appointment of Chairperson and Members of the 22nd Law Commission of India is under consideration.

Why in news?

  • The setting up of the 22nd Law Commission was constituted by the Government on February 21, 2020.
  • However, no progress has been made in the appointments till date.
  • The Government invoked the ‘doctrine of separation of power’, which says that one arm of governance should not encroach into that of another.

Issues over appointment

  • The last chairman of the law commission was retired Supreme Court judge, Justice B.S. Chauhan, who completed his tenure on 31 August 2018.
  • Subsequently, the Commission has not been reconstituted.
  • In February 2020, the Government of India announced its intention to reconstitute the Commission with no visible progress.

About Law Commission

  • Law Commission of India is a currently-defunct executive body established by an order of the Government of India.
  • The Commission’s function is to research and advise the GoI on legal reform, and is composed of legal experts, and headed by a retired judge.
  • The commission is established for a fixed tenure and works as an advisory body to the Ministry of Law and Justice.
  • The last chairman of the Commission retired in August 2018, and since then, it has not been reconstituted.

Colonial Background

  • The first Law Commission was established during colonial rule in India, by the East India Company under the Charter Act of 1833.
  • It was then presided by Lord Macaulay.
  • After that, three more Commissions were established in pre-independent India.

Post-Independence functioning

  • The first Law Commission of independent India was established in 1955 for a three-year term.
  • Since then, twenty-one more Commissions have been established.

Major reforms undertaken

  • The First Law Commission under Macaulay Itsuggested various enactments to the British Government, most of which were passed and enacted and are still in force in India.
  • These include the Indian Penal Code (first submitted in 1837 but enacted in 1860 and still in force), Criminal Procedure Code (enacted in 1898, repealed and succeeded by the Criminal Procedure Code of 1973), etc.
  • Thereafter three more Law Commissions were established which made a number of other recommendations the Indian Evidence Act (1872) and Indian Contract Act (1872), etc. being some of the significant ones.

Role in legal reforms

The Law Commission has been a key to law reform in India.

  • Its role has been both advisory and critical of the government’s policies
  • In a number of decisions, the Supreme Court has referred to the work done by the commission and followed its recommendations.
  • The Commission seeks to simplify procedures to curb delays and improve standards of justice.
  • It also strives to promote an accountable and citizen-friendly government that is transparent and ensures the people’s right to information.

 

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In news: Two principles of Justice

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Theory of Justice

Mains level : Principle of Justice

This newscard is an excerpt of the original article published in TH.

Note: This article is of extreme theoretical nature. But it leaves scope for many vague questions for prelims as well as mains where most of us go clueless.

Two principles of Justice

  • The concept, so-called, of “two principles of justice”, is synonymous with the name of John Rawls, a highly influential American liberal political philosopher of the last century.
  • The concept of two principles forms an encapsulation of the core principles of:
  • Freedom and equality embodied in the constitutions of any contemporary liberal democratic society
  • As such, they have acquired pre-eminence in a wide range of academic disciplines and in the arena of public policymaking.

What are the two principles?

  • The first of Rawls’ two principles says that every citizen has the same claim to a scheme of equal basic liberties, which must also be compatible with those of every other citizen.
  • It enumerates an extensive list of basic civil and political rights, including a person’s freedom of conscience, expression and association; the right to a basic income; and the right to exercise the franchise.
  • Their resonance with the practical world of politics needs no emphasis; consider the chapter on fundamental rights in any constitution.
  • The second of Rawls’ two principles grapples with the underlying inequalities of social and economic institutions.

How can these be reasonably justified to free and equal citizens?

  • In order to be morally defensible, the institutions must satisfy two conditions.
  1. First, they must guarantee fair equality of opportunities for competition to positions of public office and employment.
  2. Second, social and economic inequalities must be arranged in a manner that they work to the greatest benefit of the least advantaged members of society.
  • This latter postulate is Rawls’ famous “difference principle”.

Significance of this principle

  • The political significance of Rawls’ two principles of justice obtains equally in the relative weight and primacy he assigns to their different components.
  • Between them, the first principle is accorded absolute priority over the second.
  • That is to say, the primacy of the equal basic liberties of citizens is non-negotiable in a democratic society.
  • The entitlement of each to the various liberties is as critical as they are universal and non-discriminatory.
  • Within the second principle, the first part takes precedence over the second.
  • In other words, public institutions could not appear legitimate in the eyes of citizens unless everybody could reasonably expect to enjoy the fruits of fair equality of opportunities.

 

Try this question from CSP 2020:

Q. One common agreement between Gandhism and Marxism is

(a) The final goal of a stateless society

(b) Class struggle

(c) Abolition of private property

(d) Economic determinism

 

Post your answers here.
9
Please leave a feedback on thisx

 

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SC pushes for National Judicial Infrastructure Corporation (NJIC)

Note4Students

From UPSC perspective, the following things are important :

Prelims level : NJIC

Mains level : Judicial Infrastructure in India

The Supreme Court orally said that courts cannot wait on the whims and fancies of the Government, but need a proper mechanism for funding the development of judicial infrastructure.

National Judicial Infrastructure Corporation (NJIC)

  • The idea for such NJIC was first proposed by CJI Ramana in March this year, even before he took office.
  • It mooted the idea of an “umbrella national organization” that would take care of the need for judicial infrastructure.
  • Such a corporation would bring the uniformity and standardization required to revolutionize judicial infrastructure, said CJI.
  • Soon after he was sworn in, the CJI commenced work on the NJIC and a survey of 6,000 trial courts in various states was undertaken as part of this exercise.

CJI recommends the composition of NJIC

  • The CJI has said that the Judiciary is least interested in retaining control of the council.
  • The composition can be of the Union Minister for Law and Justice, the Secretary, Finance, etc.
  • The States can also be represented.
  • The benefit of having a senior judge or Chief Justice on it would be that they are in the know of things.

Why need NJIC?

  • No central agency: Presently, there is no agency to ensure use of funds allocated to augment judicial infrastructure
  • Infrastructure gap: There is a substantial gap in infrastructure and availability of basic amenities in the lower judiciary.
  • Lack of basic amenities: There is a lack of court halls, residential accommodation, and waiting room for litigants in trial courts, especially in smaller towns and rural areas.
  • Budgetary lapses: Experience shows that budgetary allocation for state judiciary often lapses since there is no independent body to supervise and execute works.

NJIC is expected to fill this vacuum and overcome problems related to infrastructure.

Significance of NJIC

  • The modernization of judicial infrastructure did not mean building more courts or filling up vacancies or ploughing through vacancies.
  • An efficient “judicial infrastructure” means providing equal and free access to justice.
  • This could be realized through a barrier-free and citizen-friendly environment.

 

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Why are Judicial Transfers riddled by controversies?

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 222

Mains level : Issues with Judicial Transfer

The transfer of Chief Justice Sanjib Banerjee from the Madras High Court to the Meghalaya High Court has given rise to a controversy over the question of whether judicial transfers are made only for administrative reasons or have any element of ‘punishment’ behind them.

Transfer of judges and the Constitution

  • Article 222 of the Constitution provides for the transfer of High Court judges, including the Chief Justice.
  • It says the President, after consultation with the Chief Justice of India, may transfer a judge from one High Court to any other High Court.
  • It also provides for a compensatory allowance to the transferred judge.
  • This means that the executive could transfer a judge, but only after consulting the Chief Justice of India.
  • From time to time, there have been proposals that one-third of the composition of every High Court should have judges from other States.

What is the Supreme Court’s view on the issue?

Union of India vs. Sankalchand Himatlal Sheth (1977)

  • The Supreme Court rejected the idea that High Court judges can be transferred only with their consent.
  • It reasoned that the transfer of power can be exercised only in public interest.
  • It held that the President is under an obligation to consult the CJI, which meant that all relevant facts must be placed before the CJI.
  • It ruled CJI had the right and duty to elicit and ascertain further facts from the judge concerned or others.

S.P. Gupta vs. President of India, 1981 (First Judges Case)

  • It considered the validity of the transfer Judges as well as a circular from the Law Ministry.
  • The Ministry had put that additional judge in all High Courts may be asked for their consent to be appointed as permanent judges in any other High Court, and to name three preferences.
  • The Minister’s reasoning was that such transfers would promote national integration and help avoid parochial tendencies bred by caste, kinship and other local links and affiliations.
  • The majority ruled that consultation with the CJI did not mean ‘concurrence’ with respect to appointments.

SCARA Vs Union of India, 1993 (Second Judges Case)  

  • In effect, it emphasized the primacy of the executive in the matter of appointments and transfers.
  • However, this position was overruled in the ‘Second Judges Case’ (1993).
  • The opinion of the CJI, formed after taking into account the views of senior-most judges, was to have primacy.
  • Since then, appointments are being made by the Collegium.

Current procedure for transfers

  • As one of the points made by the ‘Second Judges Case’ was that the opinion of the CJI ought to mean the views of a plurality of judges, the concept of a ‘Collegium of Judges’ came into being.
  • In the collegium era, the proposal for transferring a High Court judge, including a Chief Justice, should be initiated by the Chief Justice of India, “whose opinion in this regard is determinative”.
  • The consent of the judge is not required.
  • All transfers are to be made in public interest, i.e. for promoting better administration of justice throughout the country.
  • For transferring a judge other than the Chief Justice, the CJI should take the views of the CJ of the court concerned, as well as the CJ of the court to which the transfer is taking place.
  • The CJI should also take into account the views of one or more Supreme Court judges who are in a position to offer their views.
  • In the case of transfer of a Chief Justice, only the views of one or more knowledgeable Supreme Court judges need to be taken into account.

Provision for Written Recommendation

  • The views should all be expressed in writing, and they should be considered by the CJI and four senior-most judges of the Supreme Court, which means, the full Collegium of five.
  • The recommendation is sent to the Union Law Minister who should submit the relevant papers to the Prime Minister.
  • The PM then advises the President on approving the transfer.

What makes transfers controversial?

  • Punitive intent: Transfer orders become controversial when the Bar or sections of the public feel that there is a punitive element behind the decision to move a judge from one High Court to another.
  • No disclosure of reasons: As a matter of practice, the Supreme Court and the government do not disclose the reason for a transfer.
  • Adverse opinions behind: For, if the reason is because of some adverse opinion on a judge’s functioning, disclosure would impinge on the judge’s performance and independence in the court to which he is transferred.

 

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Need for ‘Indianization’ of Legal System: CJI

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Indianization of Judiciary

Chief Justice of India NV Ramana has asserted the need for the “Indianisation of our legal system”, pointing out that the colonial system being followed currently may not be best suited to the complexities of India.

Prospects of Indianization by CJI

  • CJI meant that the need to adapt to the practical realities of our society and localize our justice delivery systems.
  • For example, parties from a rural place fighting a family dispute are usually made to feel out of place in the court.
  • They do not understand the arguments or pleadings which are mostly in English, a language alien to them.
  • These days judgments have become lengthy, which further complicates the position of litigants.
  • For the parties to understand the implications of a judgment, they are forced to spend more money.
  • For whom do the court’s function, the CJI asked. For the litigants, who are the “justice seekers”. They are the ultimate beneficiaries.

What did CJI say?

  • CJI has said the ordinary Indian feels out of place in our courts where proceedings are lengthy, expensive and in English.
  • Besides, judgments are either too long or technical or manage to be both.
  • It is time for courts to wake up from their colonial stupor and face the practical realities of Indian society.
  • Rules and procedures of justice delivery should be made simple.
  • The ordinary, poor and rural Indian should not be scared of judges or the courts.

Reasons for Indianization

  • Multiple barriers continue to thwart the citizen’s way to the courts.
  • The working and the style of courts do not sit well with the complexities of India.
  • The systems, practices and rules of courts are foreign and sourced from our colonial days. They do not take care of the practical realities of India.

Major suggestions by CJI:

(A) Simplification

  • The simplification of justice delivery should be our pressing concern.
  • It is crucial to make justice delivery more transparent, accessible and effective.
  • Procedural barriers often undermine access to justice.
  • The Chief Justice said both judges and lawyers have to create an environment which is comforting for the litigants and other stakeholders.

(B) Alternate dispute mechanisms

  • The CJI said alternate dispute mechanisms like mediation and conciliation would go a long way in reducing pendency, unnecessary litigation and save resources.

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It is time to end judicial feudalism in India

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 235

Mains level : Paper 2- Independence of judiciary

Context

The August 11 order of the Himachal Pradesh High Court directed that “hereinafter, all the courts in the state other than the high court shall be referred to as district judiciary”. Furthermore, “these courts shall not be referred to as subordinate court” but as trial courts.

Issues with the judicial hierarchy Vs. hierarchy of judges

  • The expression “subordinate courts” used by Part VI, Chapter 6, of the Constitution of India cannot signify that judges are subordinate.
  • The term subordinate has implications for the independence of the judiciary, entrenched with and since Kesavananda Bharati (1973) as the essential feature of the basic structure of the Indian Constitution.
  • No judge is “subordinate” to any other, constitutionally judges are limited in the jurisdiction but also supreme within their own jurisdiction.
  • However, Article 235 speaks of “control over subordinate courts”.
  • This Article created the notion of subordination by describing these entities and agents as persons “holding a post inferior to the post of a district judge”.

Constitutional provision

  • The Constitution no doubt contemplates a hierarchy of jurisdictions, but no judge, acting within her jurisdiction, is “inferior” or “subordinate”.
  • On appeal, or review, a court with ample jurisdiction may overturn and even pass judicial strictures but this does not make the concerned courts “lower” or “inferior” courts.
  • Supervisory powers: High courts always have considerable powers of superintendence on the administrative side but this “supervisory“ power has been recognised by the apex court as a “constitutional power” and subject to the right of appeal as granted by Article 235.
  • While the Constitution allows “supervision”, it does not sanction judicial despotism.
  • Despite this, arbitrary practices in writing confidential reports of district justices seem to continue.

Way forward

  • Constitutional amendment: A complete recasting of Article 235 is needed, which does away with the omnibus expression of “control” powers in the high courts.
  • The amendment should specifically require the high courts to satisfy the criteria flowing from the principles of natural and constitutional justice and all judicial officers who fulfil due qualification thresholds should be treated with constitutional dignity and respect.
  • Collegiate system at high court’s level: For most matters (save elevation), senior-most district judges and judges of the high courts should constitute a collegiate system to facilitate judicial administration, infrastructure, access, monitoring of disposal rates, minimisation of undue delays in administration of justice, alongside matters concerning transfers, and leave.
  •  If an ACR is to be adversely changed in the face of a consistent award for a decade or more, it should be a collegiate act of the five senior-most justices, including the Chief Justice of the High Court.
  • CJI Ramana has recently agreed in principle, following the request of the Supreme Court Bar Association, that chief justices of the high courts should consider lawyers practising in the Supreme Court for elevation to the high courts.

Consider the question “Do you agree with the view that the Constitution contemplates a hierarchy of jurisdictions, but no judge, acting within her jurisdiction, is “inferior” or “subordinate”. Give reason in support of your argument.”

Conclusion

The changes suggested here needs to be implemented to ensure the independence of the judiciary at all levels.

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SC questions govt over Tribunal Reforms Bill

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Tribunals

Mains level : Issues with Tribunals Reform Bill 2021

The Supreme Court has challenged the government to produce material showing its reasons for introducing the Tribunal Reforms Bill of 2021, which abolishes nine appellate tribunals and revives provisions of an ordinance struck down by the Supreme Court, in the Parliament.

What are Tribunals?

  • Tribunals are specialist judicial bodies that decide disputes in a particular area of law.
  • They are institutions established for discharging judicial or quasi-judicial duties.
  • The objective may be to reduce the caseload of the judiciary or to bring in subject expertise for technical matters.

Do you know?

The Income Tax Appellate Tribunal was established as the first Tribunal in India back in 1941.

Creation of Tribunals

In 1976, Articles 323A and 323B were inserted in the Constitution of India through the 42nd Amendment.

  • Article 323A: This empowered Parliament to constitute administrative Tribunals (both at central and state level) for adjudication of matters related to recruitment and conditions of service of public servants.
  • Article 323B: This specified certain subjects (such as taxation and land reforms) for which Parliament or state legislatures may constitute tribunals by enacting a law.
  • In 2010, the Supreme Court clarified that the subject matters under Article 323B are not exclusive, and legislatures are empowered to create tribunals on any subject matters under their purview as specified in the Seventh Schedule.

SC stance on Tribunals

  • The Supreme Court has ruled that tribunals, being quasi-judicial bodies, should have the same level of independence from the executive as the judiciary.
  • Key factors include the mode of selection of members, the composition of tribunals, and the terms and tenure of service.
  • In order to ensure that tribunals are independent of the executive, the Supreme Court had recommended that all administrative matters be managed by the law ministry rather than the ministry associated with the subject area.
  • Later, the Court recommended the creation of an independent National Tribunals Commission for the administration of tribunals.
  • These recommendations have not been implemented.

Issues with tribunals

  • Pendency: Whereas the reasoning for setting up some tribunals was to reduce the pendency of cases in courts, several tribunals are facing the issue of a large caseload and pendency.
  • No appointment: With over 240 vacancies in key tribunals where thousands of cases were pending, not a single appointment had been made by the government in any of these tribunals till date.

Tribunals Reforms Bill, 2021

 

What is the recent news?

  • A three-judge Bench led by CJI has put the government on the dock about the complete absence of material justifying the Bill and also the lack of proper debate in the Parliament.
  • The provisions regarding conditions of service and tenure of Tribunal Members and Chairpersons were struck down by the Supreme Court.
  • However, the same provisions re-appeared in the Tribunal Reforms Bill recently passed.
  • The court has also noted its reservations against the complete dissolution of some tribunals.

What happens to cases pending before the tribunals are dissolved?

  • These cases will be transferred to High Courts or commercial civil courts immediately. Legal experts have been divided on the efficacy of the government’s move.
  • While on the one hand, the cases might get a faster hearing and disposal if taken to High Courts, experts fear that the lack of specialization in regular courts could be detrimental to the decision-making process.
  • For example, the FCAT exclusively heard decisions appealing against decisions of the censor board, which requires expertise in art and cinema.

Observations made by the Court

  • With over 240 vacancies in key tribunals where thousands of cases were pending, not a single appointment had been made by the government in any of these tribunals to date.
  • The CJI repeated his question of whether the government was moving towards closing down the tribunals.

A new flashpoint between Executive and Judiciary

  • The verdict discussed the possibility of legislation overriding the court’s directions.
  • In other cases, too, the SC and Parliament have been at loggerheads on the issue of rationalization of tribunals.

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Issues related to Judicial appointment in India

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 124(2) and Article 217

Mains level : Issues with collegium system

Context

Recommendations of some judges for appointment by the collegium raises the issue of changes in the collegium system.

Background of the collegium system

  • During the 1970s, the political leaning of a candidate had become a major consideration in the matter of appointment of judges.
  • Therefore, it was felt that the role of the state in the appointment of judges in terms of Article 124 (2) and 217 needed to be reconsidered.
  • But then, in 1982 in S P Gupta’s case, the Supreme Court bench of five judges gave its approval to the primacy of the state in the matter of appointment of judges.
  • However, that judgment was overturned subsequently by a bench of nine judges.
  • Primacy of CJI:  It held that the provisions for consultation with the Chief Justice of India, and the Chief Justices of the high courts in Articles 124 (2) and 217 of the Constitution were introduced because of the realisation that the Chief Justice is best equipped to know and assess the worth of a candidate, and his/her suitability for appointment as a superior judge.
  • Initiation of proposal by CJI: It also held that the initiation of the proposal for appointment of a judge to the SC must be made by the CJI after wider consultation with senior judges, and likewise in the case of high courts.
  • Confirmation of CJI: It was also held that no appointment of any judge to the SC or any high court can be made unless it conforms with the opinion of the CJI.
  • Thus, what is known as the “collegium system” was born.
  • Striking down of NJAC: In 2014, the government tried to make changes to the collegium system by introducing Article 124 (A) by a constitutional amendment, and by enacting National Judicial Appointments Commission Act, 2014.
  • The SC has struck down both the amendment and the Act.

Has the collegium system succeeded?

  • Nepotism: There have been cases where the nearest relative of Supreme Court judges has been appointed as a high court judge, ignoring merit.
  • Ignoring the merit: Judges far lower in the combined All India Seniority of High Court judges were appointed to SC, and the reason assigned was that those selected were found more meritorious.

Conclusion

The collegium system is still the best, but it needs to weed out what is wrong in its actual working. It is hoped that the system will make course corrections in deserving cases.

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Collegium system’s role in protecting democracy

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 124 and Article 214

Mains level : Paper 2- Collegium system

Context

Judiciary is being challenged, from within and outside. It must shield itself from further erosion of its independence and competence by scrupulously following the law, as declared by the Supreme Court (SC) itself.

How the Collegium helped to secure the independence of judiciary

  • In 1993, the SC held the following:
  • The process of appointment of Judges to the Supreme Court and the High Courts is an integrated ‘participatory consultative process’.
  • The process aims at selecting the best and most suitable persons available for appointment.
  • The Collegium consists of the CJI and the four senior-most judges of the SC and high courts.
  • It was devised to ensure that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary.
  • By judicial interpretation, the Supreme Court re-interpreting Article 124 and 214 of the Constitution empowered the judiciary to make appointments to the higher judiciary to secure the rule of law.

Threat to the judicial independence

  • The framers of the Constitution were alive to the likely erosion of judicial independence.
  • On May 23, 1949, K T Shah stated that the Judiciary, which is the main bulwark of civil liberties, should be completely separate from and independent of the Executive, whether by direct or by indirect influence.
  • In  2016, the Supreme Court struck down a constitutional amendment for creating the National Judicial Appointments Commission (NJAC).
  • The SC strongly disapproved of any role for the political executive in the final selection and appointment of judges.
  • The SC said that “reciprocity and feelings of payback to the political executive” would be disastrous to the independence of the judiciary.

Consider the question “How the Collegium system helped the Judiciary secure its independence? What are the issues with it?”

Conclusion

The selection of deserving judges is essential to ensure the independence of the judiciary. The Collegium must do its best in this task.


Back2Basics: About the National Judicial Appointments Commission

  • The NJAC or National Judicial Appointments Commission sought to change the system, where judges would have been appointed by a commission where the legislative and the executive would have had a role.
  • The NJAC was supposed to comprise of the Chief Justice of India (Chairperson, ex-officio), two other senior judges of the Supreme Court, The Union Minister of Law and Justice, ex-officio and two eminent persons, to be appointed by the Chief Justice of India, Prime Minister of India, and Leader of Opposition in the Lok Sabha.
  • The bill was passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014, and became an Act.
  • The NJAC replaced the collegium system for the appointment of judges.
  • The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in India, and the President gave his assent on 31 December 2014.
  • The NJAC Act became effective from April 13, 2015.
  • The NJAC enjoyed support from the Supreme Court Bar Association and many legal luminaries but was also challenged by some lawyer associations and groups before the Supreme Court of India through Writ Petitions.
  • A three-judge bench of the Supreme Court referred the matter to a Constitution Bench that heard different arguments for over a month.
  •  Finally, on October 16, a five-judge bench of the Supreme Court declared the 99th Constitutional Amendment Act and the NJAC Act 2014 “unconstitutional and void”.

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What is Recusal of Judges?

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Recusal of Judges

Mains level : Judical transparency issues

In the last week, two Supreme Court judges have recused themselves from hearing cases relating to West Bengal.

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.

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Pardoning powers of the President

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Pardoning powers of Governor and President

Mains level : Read the attached story

Tamil Nadu CM has written to the President requesting him to accept the State Government’s to remit the life sentences of all the seven convicts in the Ex-PM’s assassination case.

Story so far

  • Tamil Nadu government had recommended to the state Governor for the remission of the rest of the sentence for all convicts and their early release.
  • The Governor has then decided that the President was the competent authority to decide on the plea of remission of sentence.

Answer this PYQ in the comment box:

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

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.

[1] 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 offense.
  2. The pardoning powers of the Indian President are elucidated in Art 72 of the Indian Constitution. There are five different types of pardoning that 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.

[2] 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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App to view live proceedings of SC launched for media persons

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Paper 2- App to watch live proceedings of the Supreme Court

App to view virtual proceedings

  • Chief Justice of India launched a mobile app that would allow media persons to view the Supreme Court’s virtual proceedings live on their mobile phones.
  • The role of the media assumes importance in the process of disseminating information.
  • Justice A.M. Khanwilkar said the facility, which is now temporary, could be made permanent in the future depending on the operational issues.

‘Indicative Notes’ on the SC website

  • The CJI also launched a new feature in the Supreme Court’s official website called ‘Indicative Notes’.
  • This feature is aimed at providing concise summaries of landmark judgments in an easy-to-understand format.
  • This will serve as a useful resource for media persons and the general public who wish to be better informed about the rulings of the court.

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Judicial federalism

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 139A

Mains level : Paper 3- Judicial federalism and autonomy of the High Courts

The article discusses the idea of judicial federalism and autonomy of the High Courts.

Issue of transfer of cases from High Courts to Supreme Court

  • Under Article 139A of the Constitution, the Supreme Court does have the power to transfer cases from the High Courts to itself if cases involve the same questions of law.
  • In Parmanand Katara v. Union of India (1989), the Supreme Court underlined that the right to emergency medical treatment is part of the citizen’s fundamental rights.
  • As such, constitutional courts owe a duty to protect this right.
  • In the face of a de facto COVID-19 health emergency, the High Courts of Delhi, Gujarat, Madras and Bombay, among others, have done exactly that.
  • These High Courts among others have directed the state governments on various issues related to COVID-19 health emergency.
  • However, Supreme Court issued an order asking the State governments and the Union Territories to “show cause why uniform orders” should not be passed by the Supreme Court.
  • Therefore, the Supreme Court indicated the possibility of the transfer of cases to itself.

Issues with the SC’s move

  • According to the Seventh Schedule of the Constitution, public health and hospitals come under the State List as Item No. 6.
  • There could be related subjects coming under the Union List or Concurrent List.
  • Also, there may be areas of inter-State conflicts.
  • But as of now, the respective High Courts have been dealing with specific challenges at the regional level, the resolution of which does not warrant the top court’s interference.
  • In addition to the geographical reasons, the constitutional scheme of the Indian judiciary is pertinent.
  •  In L. Chandra Kumar v. Union of India (1997), the Supreme Court itself said that the High Courts are “institutions endowed with glorious judicial traditions” since they “had been in existence since the 19th century”.
  • Even otherwise, in a way, the power of the High Court under Article 226 is wider than the Supreme Court’s under Article 32.
  • This position was reiterated by the court soon after its inception in State of Orissa v. Madan Gopal Rungta (1951).
  • Judicial federalism has intrinsic and instrumental benefits which are essentially political.
  • The United States is an illustrative case.
  • The U.S. Supreme Court reviews “only a relative handful of cases from state courts” which ensures “a large measure of autonomy in the application of federal law” for the State courts.
  • The need for a uniform judicial order across India is warranted only when it is unavoidable — for example, in cases of an apparent conflict of laws or judgments on legal interpretation.
  • Otherwise, autonomy, not uniformity, is the rule.
  • Decentralisation, not centrism, is the principle.

Consider the question “Under Article 139A of the Constitution, the Supreme Court does have the power to transfer cases from the High Courts to itself if cases involve the same questions of law. However, transferring such cases should not impinge on judicial federalism. Comment.”

Conclusion

In the COVID-19-related cases, High Courts across the country have acted with an immense sense of judicial responsibility. This is a legal landscape that deserves to be encouraged. To do this, the Supreme Court must simply stay away.

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Need for diversity and propriety in judiciary

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Women Judges in the SC

Mains level : Paper 2- Issue of women representation in the judiciary in Inda

The article highlights the issue of women representation and its implications for the role of the judiciary.

Improving representation of women

  • Presently, the Supreme Court is left with only one woman judge, who is also going to retire next year, after which, the SC will be left without a woman judge.
  • The collegium failed to take timely steps to elevate more women judges in the SC.
  • In the 71 years of history of the SC, there have been only eight women judges — the first was Justice Fathima Beevi, who was elevated to the bench after a long gap of 39 years from the date of establishment of the SC.
  • In the submissions filed by the AG on the issue states that improving the representation of women in the judiciary could go a long way towards attaining a more balanced and empathetic approach in cases involving sexual violence.
  • The AG also brought up the fact that there has never been a woman Chief Justice of India (CJI).

Women representation in developed countries

  • The situation is not any different in developed countries such as the US, UK, Ireland, France and China.
  • According to the data collected by Smashboard, a New Delhi and Paris-based NGO, not only has no woman ever been appointed as the CJI, the representation of women across different courts and judicial bodies is also abysmally low.

Way forward

  • In the last few meetings of the collegium, there has been some talk of promoting women to the apex court.
  • In this regard, if Justice B V Nagaratha of the Karnataka High Court is elevated to the Supreme Court, she could become the first woman CJI in February 2027.
  • But her elevation will lead to the supersession of 32 senior judges.
  •  Supersession itself is perceived as a threat to an independent judiciary
  • Seniority combined with merit is the sacrosanct criteria for promotion in the judiciary.
  • New CJI should secure the trust of members of his collegium to fill the backlog of 411 vacancies across high courts and six vacancies in the SC.

Consider the question “What are the various structural issues faced by the judiciary in India? Suggest the measures to deal with them.”

Conclusion

A greater number of women in the Supreme Court would eventually lead to a woman CJI. This would be a gratifying change, which may mark the beginning of a new era of judicial appointments.

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Need to address the systemic issues plaguing the judiciary

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 50, Article 124

Mains level : Paper 2- Challenges facing judiciary in India

The article highlights the issues facing the judiciary in India and emphasises the need for addressing these issues.

Separating judiciary from the executive

  • Today, the judiciary, especially the SC, is called upon to decide a large number of cases in which the government has a direct interest.
  • These can be politically sensitive cases too.
  • The framers of the Constitution understood the importance of the oath of office of judges of the Supreme Court of India (SC) and carefully designed its language.
  • The words, “without fear or favour” to “uphold the constitution and the laws” are extremely significant and stress the need for a fiercely independent court.
  • Article 50 of the Constitution provides: “The State shall take steps to separate the judiciary from the executive in the public services of the State.”

Master of roaster issue

  • The Chief Justice of India is the first amongst the equals but by the virtue of his office assumes significant powers as the Master of the Roster to constitute benches and allocate matters.
  • The SC has re-affirmed this position in a rather disappointing decision in Campaign for Judicial Accountability and Reforms v. Union of India, (2018).
  • The result has been catastrophic.
  • Many matters were either treated casually or deflected for no reason from serious hearing.

Accountability from legislature and executive

  • The SC is expected to seek strict accountability from the legislature and executive and any infraction of the Constitution and laws must be corrected.
  • Yet, this is not happening.
  • A country of billion-plus needs its highest court to stand for the people, not seemingly for the executive of the day.

Inherent and fundamental challenges

  • The judiciary is besieged by inherent and fundamental challenges.
  • Millions of pending cases, quality of judges and their decisions, organisational issues and its integrity and impartiality, need urgent attention.
  • Yet, in the last two decades precious little has been done.
  • Justice is eluding the common man, including the vulnerable sections of society.

Way forward

  • The new Chief Justice must seriously introspect and free himself of the bias in constituting benches and allocating cases and take concrete steps to revitalise the administration of justice.
  • Only then will the rule of law be restored and the Constitution served.

Consider the question “Examine the inherent and fundamental challenges faced by the judiciary in India. Suggest the measures to deal with these challenges.” 

Conclusion

The Chief Justice of India on account of the position he holds as paterfamilias of the judicial fraternity, was suspected by none other than Dr B R Ambedkar. Let us hope the new Chief Justice makes serious efforts to prove otherwise.

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SC paves way for appointment of ad-hoc judges in HCs

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 224A

Mains level : Paper 2- Appointment of retired judges in the High Court under Article 224A

Appointment of retired judges under Article 224A

  • The Supreme Court cleared the way for appointment of retired judges as ad-hoc judges in High Courts under Article 224A of the Constitution.
  • The court ruled that the Chief Justice of a High Court may initiate the process of recommending a name if the number of judges’ vacancies is more than 20 per cent of the sanctioned strength.
  • The court said the appointments can follow the procedure laid down in the Memorandum of Procedure for appointment of judges.
  • The move will help to deal with mounting backlog of cases.
  • Since the nominees have been judges before, the need to refer the matter to the IB or other agencies would not arise, shortening the time period.

Back2Basics: About Article 224A

  • It allows the Chief Justice of a High Court to allow a retired judge of any High Court to sit and act as the judge of the High Court for that State.
  • Previous consent of the President is necessary.
  • The acting retired judge would be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court.
  • This Article was not part of the Constitution of India, 1950. It was inserted by the Constitution (Fifteenth Amendment) Act, 1963.

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Supreme Court sets timeline for Govt to clear judges’ names

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 217 of Indian Constitution

Mains level : Paper 2- SC sets timeline to Centre to clear names recommended by the Centre

Why the timeline

  • The Supreme Court laid down a timeline for the Centre to clear names recommended by the High Court Collegiums.
  • The Bench noted that there are almost 40% vacancies in the High Courts, with many of the larger High Courts working under 50% of their sanctioned strength.
  • Against the sanctioned strength of 1,080 High Court Judges, 664 have been appointed but 416 vacancies remain. 
  • The Bench rejected the contention that laying down a timeline “would be contrary to” certain “observations made in the Third Judges case”, saying the “observations” referred to “deal with the judicial review of a particular appointment and not such aspects of the appointment process like delay”.

The timeline

  • The Intelligence Bureau (IB) should submit its report/ inputs within 4 to 6 weeks from the date of recommendation of the High Court Collegium, to the Central Government.
  • It would be desirable that the Central Government forward the file(s)/ recommendations to the Supreme Court within 8 to 12 weeks from the date of receipt of views from the State Government and the report/ input from the IB.
  • It would be for the Government to thereafter proceed to make the appointment immediately on the aforesaid consideration and undoubtedly, if Government has any reservations on suitability or in public interest, within the same period of time it may be sent back to the Supreme Court Collegium with the specific reasons for reservation recorded.
  • If the Supreme Court Collegium, after consideration of the aforesaid inputs, still reiterates the recommendation(s) unanimously…, such appointment should be processed and appointment should be made within 3 to 4 weeks.

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Supreme Court Portal for Assistance in Court’s Efficiency (SUPACE)

Note4Students

From UPSC perspective, the following things are important :

Prelims level : SUOPACE

Mains level : Not Much

The Supreme Court has unveiled its Artificial Intelligence (AI) portal SUPACE, designed to make research easier for judges, thereby easing their workload.

SUPACE

  • A pet project of the former Chief Justice of India S A Bobde, the SUPACE is a tool that collects relevant facts and laws and makes them available to a judge.
  • The Supreme Court’s system is not designed to take decisions, but only to process facts and to make them available to judges looking for input for a decision.
  • The CJI had then said that AI is to the intellect, what muscle memory is to the mind.

Its’ utility

  • SUPACE will produce results customized to the need of the case and the way the judge thinks.
  • This will be time-saving. It will help the judiciary and the court in reducing delays and pendency of cases.
  • AI will present a more streamlined, cost-effective and time-bound means to the fundamental right of access to justice.
  • It will make the service delivery mechanism transparent and cost-efficient.

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Issues with Master of the Roaster power of CJI

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Master of the Roaster

Mains level : Paper 2- Implications of the Master of Roaster power for the independence of the judiciary

CJI’s power as Master of Roaster and issues with it

  • The Supreme Court recently closed the proceedings enquiring into a conspiracy to threaten the independence of the judiciary on the basis of sexual harassment allegations against the former CJI.
  • The singular power of the CJI as the Master of the Roster – i.e., the vests exclusive discretion in the Chief Justice to constitute benches and allocate cases.
  • While the CJI’s other powers such as recommending appointments to constitutional courts are shared with other senior judges, the power of Master of the Roster is enjoyed without scrutiny.
  • This power enabled Justice Gogoi to institute suo motu proceedings despite being an accused; label the case as a matter of judicial independence; and preside over it.
  • This power lay at the heart of the controversy surrounding the proceedings the Court has now closed.

Implications for independence of judiciary

  • From the standpoint of judicial independence, the Master of the Roster power makes the CJI’s office a high stakes one.
  • It makes the CJI the sole point of defence of the Court against executive interference.
  • However, this has a flip side.
  • With the CJI as the sole Master of the Roster, any executive seeking to influence the Supreme Court needs only a pliant CJI.
  • Yet, the Supreme Court has been reluctant to dilute this power.
  • In Asok Pande v. Supreme Court of India (2018), a three-judge bench of the Court held that Master of the Roster is the CJI’s exclusive power.
  • Thereafter, a two-judge bench in Shanti Bhushan v. Supreme Court of India (2018) rejected the plea that the Master of the Roster should be interpreted as the collegium.

Need for the reforms

  • The collegium system has failed to keep executive interferences at bay from the Supreme Court.
  • This is for two reasons:
  • First, as Justice Gogoi’s case shows, there is an attractive lure of post-retirement jobs.
  • Second, as the privilege of Master of the Roster shows, the CJI’s allocation of cases is an unchecked power.
  • The continuing project of judicial reforms should then address these two issues.

Way forward

  • A cooling-off period between retirement and a post-retirement appointment has often been suggested as a way to deal with the first problem.
  • For the second, the power of Master of the Roster needs to be diversified beyond the CJI’s exclusive and untrammelled discretion.

Consider the question “What are the issues with the Master of the Roaster power of the Chief Justice of India? Suggest the ways to deal with the issue.” 

Conclusion

We need to carry out these reforms make the judiciary less prone to interference from the executive.

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Appointment of the Law Commission

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Law Commission

Mains level : Law Commission and its function

The Supreme Court has asked the Home and Law Ministries to explain the nearly three-year-long lapse in making appointments to the Law Commission.

Try this PYQ:

Q.The power to increase the number of judges in the Supreme Court of India is vested in

(a) The President of India

(b) The Parliament

(c) The Chief Justice of India

(d) The Law Commission

What is the news?

  • The posts of Chairperson and Members have been vacant ever since the 21st Law Commission under the former Supreme Court judge, Justice B.S. Chauhan completed its tenure in August.
  • The government approved the constitution of the 22nd Law Commission on February 19 last.
  • However, it has not appointed the Chairperson and Members to date.

What is the Law Commission?

  • It is an executive body established by an order of the Government of India. The first law commission of independent India was established post 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 the cost of litigation, etc.

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

  • identify laws that 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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TN Governor to decide on Ex-PM assassin Pardon

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Pardoning powers of Governor and President

Mains level : Capital punishment

Tamil Nadu Governor would take a decision as per the Constitution in the next three or four days on the plea for release filed by A.G. Perarivalan, who is undergoing life imprisonment for the assassination of former PM Rajiv Gandhi in 1991.

Give your personal views in favour and against Capital Punishment in the comment box.

What is the news?

  • The court noted in its short order that the Solicitor General submitted that the application filed by the petitioner Perarivalan under Article 161 of the Constitution.
  • The TN State Cabinet had earlier made the recommendation to remit the life sentences of seven convicts, including Perarivalan in September 2018.
  • The new turn of events when the Additional Solicitor General for the Centre, had argued recently that the pleas for pardon and release should go to the President instead of the Governor.

What does Pardon mean?

  • A pardon is a government/executive decision to allow a person to be absolved of guilt for an alleged crime or other legal offense as if the act never occurred.

Why need a Pardon?

  • Pardons can be granted when individuals are deemed to have demonstrated that they have “paid their debt to society”, or are otherwise considered to be deserving of them.
  • Pardons are sometimes offered to persons who were either wrongfully convicted or who claim that they were wrongfully convicted.
  • Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone that is seen as wrongly convicted.

What does Article 161 say?

  • Article 161 of the Constitution provides the Governor with the power to remit or commute the sentence of any prisoner.
  • The Governor’s decision will be subject to judicial review by the constitutional courts.

Supreme court’s observations

  • The Constitution Bench in 2015, in a majority decision, had held that the States cannot unilaterally remit the sentences of life convicts in cases investigated by a Central agency under a Central law.
  • The assassination case was probed by the CBI.
  • In compliance with the 2015 verdict, the Tamil Nadu government wrote to the Centre in 2016, proposing the grant of remission to the convicts. The State wanted the Centre to concur.
  • After a wait of over two years, the Centre rejected the State’s proposal, saying this was an unparalleled act in the annals of crimes committed in this country.

Arguments in Perarivalan’s petition seeking pardon

  • Perarivalan had been pleading for release citing that he was 19 when he was arrested.
  • He was the only male child of his parents, there were no records of criminal antecedents, and that he had excellent conduct in his entire prison life.
  • His petition also cited UG and PG degrees, and that he was the university topper, Gold medalist in diploma in DTP, and that he completed more than eight diploma and certificate courses during his prison term.
  • His probation officer gave a report about lapses in recording his confession statement that handed out maximum punishment in his case.

Basis of his innocence

  • Perarivalan cannot be called innocent before the law as he continues to be a convicted prisoner serving imprisonment.
  • He was accused of having bought two battery cells for Sivarasan, the LTTE man who masterminded the conspiracy.
  • He was sentenced to death based on this crucial confession statement.

Significance of the convicts’ release

  • The release of seven convicts is a demand raised by not only the ruling party of TN but the main opposition too.
  • All TN politicians voiced that the judiciary should be able to reform and let them live as good citizens to uphold the high values of reformatory justice and restitution.

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Can courts stay laws made by the legislature?

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Judicial Review

Mains level : Separation of Power doctrine

The Supreme Court’s recent order staying the implementation of three farm laws has been criticised and is seen as violative of the doctrine of Separation of Powers.

Q. Discuss the role of judicial activism in parliamentary democracy in India.

What is the issue?

  • In particular, many have questioned the suspension of action under the laws as such interim orders are extremely rare.
  • The court did not accept the Attorney General’s argument that laws made by the legislature should not be ordinarily stayed, as there is a presumption of constitutionality in favour of the laws.

SC’s justification

  • This court cannot be said to be completely powerless to grant stay of any executive action under a statutory enactment, the Bench observed in its order.
  • This means that it was apparently making a distinction between staying a law and staying its implementation or any action under it.
  • Some may argue, however, that the effect remains the same, as the order operates as a stay on the government invoking its provisions.

Previous such orders

  • The court also cited an order passed by another Bench of the Supreme Court in September 2020 on the Maratha reservation issue.
  • It directed that admissions to educational institutions for 2020-21 and appointments to posts under the government shall be made without reference to the reservation provided under the relevant legislation.

Farms laws case is different

  • In the Maratha reservation case, the Bench said interim orders could be passed if an enactment is ex facie unconstitutional or contrary to the law laid down by the Supreme Court.
  • It noted that the quota violated the 50% ceiling mentioned in the Indra Sawhney case (1992) and that the Maharashtra government had not shown any extraordinary situation to justify exceeding the limit.
  • Here, the Court observed that a stay on the farm laws’ implementation may assuage the hurt feelings of farmers and encourage them to come to the negotiating table.

What are the court’s powers in regard to staying enacted law?

  • Under the broad framework of judicial review, the Supreme Court and High Courts have the power to declare any law unconstitutional.
  • This is on grounds if a law is contrary to any provision of the Constitution or it violates any of the fundamental rights.
  • Another ground is invalidity if the law is repugnant to a central law on the same subject or has been enacted without legislative jurisdiction.

Criticisms of the move

  • The main criticism is that suspending a law made by the legislature goes against the concept of separation of powers.
  • Courts are expected to defer to the legislature’s wisdom at the threshold of a legal challenge to the validity of a law.
  • The validity of law ought to be considered normally only at the time of final adjudication, and not at the initial stage.
  • The second principle is that there is a presumption that every law enacted by any legislature is constitutional and valid.
  • The onus is on those challenging it to prove that it is not. Therefore, courts are circumspect when hearing petitions seeking suspension of law pending a detailed adjudication.

Various precedents cited by the Court

  • Case law suggests that in some cases, High Courts indeed stayed the operation of some laws. However, the Supreme Court took a dim view.
  • In 1984, the top court set aside an interim stay granted against the operation of a municipal tax (Siliguri Municipality & Others vs Amalendu Das & Others).
  • In 2013, it removed the stay on some provisions of and regulations under the Cigarettes and Other Tobacco Products Act, 2003 (Health for Millions Trust vs Union of India).
  • It then held that the rules were ex facie unconstitutional and the factors, like, the balance of convenience, irreparable injury and public interest are in favour of passing an interim order.

Back2Basics: Judicial Activism

  • The term “Judicial Activism” refers to the court’s decision, based on the wisdom that does not go rigidly within the text of the statute passed by the legislature.
  • It goes in favour of the use of judicial power broadly to provide remedies to the wide range of social wrongs for ensuring proper justice.
  • The judiciary performs an active role to uphold constitutional values and ethics under the constitutional pattern.
  • For addressing civic dilemmas, the judiciary applies its intellect and creativity to fill the gap between the positive and normative aspects of legislations.
  • For this reason, judicial activism has emerged.

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Protecting Article 32

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 32

Mains level : Paper 2- Recourse to Article 32 and related issues

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

Context

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

Recourse under Article 32 is not absolute

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

New facets of Article 32

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

Comparing Article 226 and Article 32

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

Need for effective bail system

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

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

Conclusion

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

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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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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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Private: Contempt of Court

Recently, the Supreme Court of India suo moto initiated the proceedings for criminal contempt of court against lawyer-activist Prashant Bhushan for his tweet criticising the current Chief Justice of India and the role of some Chief Justices of India in the last six years.

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/Constitutional 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.
  • Article 129: Grants Supreme Court the power to punish for contempt of itself.
  • Article 142(2): Enables the Supreme Court to investigate and punish any person for its contempt.
  • Article 215: Grants every High Court the power to punish for contempt of itself.
  • The Contempt of Courts Act, 1971, gives statutory backing to the idea.
  • The Contempt of Courts Act 1971 was amended in 2006 to include the defence of truth under Section 13 of the original legislation. Implying that the court must permit justification by truth as a valid defence if it is satisfied that it is in the public interest.

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.
  • 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 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.

Need for Contempt power

  • To insulate the judiciary from unfair attacks and prevent a sudden fall in the judiciary’s reputation in the public eye.
  • It helps judges to do their duties of deciding cases without fear, favour, affection or ill will.

Issues with Contempt power

1.Such a power is not in consonance with the constitutional scheme of India

  • The basic principle in a democracy is that the people are supreme.
  • Once this concept of popular sovereignty is kept firmly in mind, it becomes obvious that the people of India are the masters and all authorities (including the courts) are their servants.

II.International example

  • In many countries, contempt jurisdiction is regarded as archaic and exercised sparingly.
  • In the US, courts no longer use contempt to silence comments on judges or legal matters.
  • The First Amendment to the US Constitution forbids imposition of contempt sanctions on a newspaper.
  • The concept of contempt is a centuries-old British law abolished in 2013.

III.In a free society criticism of the judiciary is inevitable.

  • Judges have vast powers and people will not remain silent about the exercise of such powers.
  • Just as decisions of other branches of government attract criticism, judicial decisions would also invite the same.

IV.Subjective

  • For example, the assessment of the ground of scandalizing the court,depends, to a great degree, on the temperament and preference of the judge. What could be contempt to Judge A may not be contempt to Judge B.

Way forward

  • The test to determine whether an act amounts to contempt of court or not is this: does it make the functioning of the judges impossible or extremely difficult? If it does not, then it does not amount to contempt of court even if it is harsh criticism.
  • The law of contempt should be employed only to enable the court to function, not to prevent criticism.
  • It’s time for the legislature to take steps to amend the Contempt of Court Act and eschew definition of criminal contempt.
  • Judiciary should balance two conflicting principles, ie freedom of expression, and fair and fearless justice.
  • Judges deliver justice, they do not embody it.
  • They should never forget their Court is supreme because it’s final not because it’s infallible.
  • When they lapse they can be criticised, but of course, politely and fairly.

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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.

Also read:

[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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Judicial Reforms

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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Judicial Reforms

[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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Judicial Reforms

[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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Judicial Reforms

[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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Judicial Reforms

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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Judicial Reforms

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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Judicial Reforms

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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Judicial Reforms

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 w