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Subject: Judiciary

  • CJI assures ‘complete transparency’ in Collegium System

    Why in the News?

    Recently, CJI B.R. Gavai affirmed that the collegium system will ensure merit, transparency, and inclusive representation, and will not be swayed by external pressures.

    What is the Collegium System?

    • About: The Collegium System is the process by which judges are appointed and transferred in the Supreme Court and High Courts of India.
    • Origin: It was developed by the Supreme Court itself and is not mentioned in the Constitution.
    • Purpose: It aims to ensure judicial independence by minimizing the role of the executive in judicial appointments.
    • Basis for Appointments:
      • Supreme Court Judges: Under Article 124, the President appoints judges after consulting relevant judges from the Supreme Court and High Courts.
      • High Court Judges: Under Article 217, appointments are made by the President after consulting the Chief Justice of India, Governor of the State, and Chief Justice of the High Court concerned.
    • Structure of the Collegium:
      • Supreme Court Collegium: It consists of 5 judges — the Chief Justice of India (CJI) and the four senior-most judges of the Supreme Court.
      • High Court Collegium: It comprises the Chief Justice of the High Court and the two senior-most judges of that High Court.

    Qualifications for SC Judges:

    • Citizenship: Must be an Indian citizen.
    • Judicial Experience: At least 5 years as a High Court judge or 10 years as an advocate in one or more High Courts.
    • Alternative Route: Can also be a distinguished jurist, in the President’s opinion.

    Qualifications for HC Judges:

    • Experience: Must have held a judicial office for 10 years or practiced as an advocate for 10 years in a High Court.
    • Bar Enrollment: Must be enrolled with the Bar Council of India.

    Evolution of the Collegium System:

    • First Judges Case (1981): The Supreme Court ruled that the executive had primacy in appointments, and the CJI’s opinion was not binding.
    • Second Judges Case (1993): The Court reinterpreted “consultation” to mean “concurrence”, giving primacy to the judiciary and formally creating the Collegium System.
    • Third Judges Case (1998): On Presidential Reference, the Collegium was expanded to five members — the CJI + 4 senior-most judges.

    How does it Work?

    • Appointment of Chief Justice of India (CJI): The outgoing CJI recommends the next CJI, based on seniority. The Law Minister forwards it to the PM, who advises the President.
    • Appointment of Other SC Judges: The CJI initiates the proposal after consulting Collegium members and the senior-most judge from the concerned High Court.
    • Appointment of High Court Judges: Initiated by the High Court Chief Justice, approved by the High Court Collegium, and forwarded via the state government to the Union Law Ministry.
    [UPSC 2012] What is the provision to safeguard the autonomy of the Supreme Court of India?

    1. While appointing the Supreme Court Judges, the President of India has to consult the Chief Justice of India.

    2. The Supreme Court Judges can be removed by the Chief Justice of India only.

    3. The salaries of the Judges are charged on the Consolidated Fund of India to which the legislature does not have to vote.

    4. All appointments of officers and staff of the Supreme Court of India are made by the Government only after consulting the Chief Justice of India.

    Which of the statements given above is/are correct?

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

     

  • India’s legal bridge is one of reciprocity, not roadblocks 

    Why in the News?

    In May 2025, the Bar Council of India (BCI) officially put into effect new rules called the “Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India.” This is a major step in India’s legal system, as it allows foreign lawyers to work in India in a regulated way while protecting Indian legal standards.

    What is the Bar Council of India (BCI)? 

    The BCI is a statutory body established under the Advocates Act, 1961 to regulate the legal profession and legal education in India.

    Why did the Bar Council of India (BCI) enforce the new rules?

    • To Regulate and Monitor Foreign Legal Practice in India: With growing cross-border trade and legal demands, there was a need to formally regulate how foreign lawyersoperate in India. The rules provide a clear framework for registration, scope of work, and ethical standards. Eg: Foreign law firms advising Indian clients on international mergers or arbitration cases must now register and follow BCI rules, ensuring accountability.
    • To Ensure Reciprocity and Protect Indian Legal Interests: The rules were introduced to allow foreign legal entry based on mutual terms, ensuring Indian lawyers are treated fairly abroad. It also prevents unregulated entry that could undermine local legal professionals. Eg: U.S. law firms can now operate under defined conditions, but only if similar access is given to Indian lawyers in the U.S., ensuring balanced opportunities.

    What are the key criticisms of the BCI rules by U.S. law firms?

    • Procedural Restrictions as Non-Tariff Barriers: U.S. law firms argue that the BCI rules impose excessive procedural requirements that act as a non-trade barrier, limiting their entry into India. Eg: Mandatory disclosures and registration conditions are seen as restrictive and protectionist.
    • Conflicts with U.S. Confidentiality Norms: The requirement to reveal the “nature of legal work” and “client identity” allegedly conflicts with the American Bar Association (ABA) rules on client confidentiality. Eg: U.S. lawyers are bound by rules that prevent even general disclosure of client details.
    • Lack of Reciprocity and Sudden Implementation: The fly-in, fly-out rule imposes limits (e.g., 60 days stay) without ensuring similar access for Indian lawyers in the U.S., and critics say the rules were implemented without a transition phase. Eg: No equivalent restrictions exist for U.S. law firms visiting India earlier, but now sudden compliance is required.

    Why are legal services excluded from trade agreements in India?

    • Constitutional Separation from Trade: Legal services fall under Entries 77 and 78 of the Union List (administration of justice and legal profession), not under trade and commerce entries. Hence, they are constitutionally excluded from trade negotiations. Eg: In the UK-India Free Trade Agreement negotiations, India intentionally excluded legal services, reinforcing this constitutional boundary.
    • Nature of Legal Practice as Personal Service: Indian courts have ruled that legal practice is a contract of personal service, not a commercial activity, making it unsuitable for inclusion in trade deals. Eg: In Bar of Indian Lawyers vs D.K. Gandhi (2024), the court held that legal services are distinct from trade or business, confirming their exclusion from trade frameworks.

    How do the BCI rules ensure a balance between openness and standards?

    • Structured entry for foreign lawyers and firms: The BCI rules permit foreign law firms and practitioners to operate in India through a registration-based model, ensuring regulated access rather than blanket entry. Eg: Rules 3 and 4 allow entry subject to ethical and professional conditions, preventing unregulated practice.
    • Fly-in, fly-out provisions with safeguards: The rules enable temporary legal visits under the fly-in, fly-out model, while imposing limits on duration (60 days/year) and type of legal work, ensuring such visits stay within approved bounds. Eg: Under Rule 3(1) proviso, a foreign lawyer may advise on foreign law but cannot represent clients in Indian courts.
    • Flexibility with accountability: The rules allow the BCI to assess foreign qualifications and credentials case-by-case (Rule 6), ensuring professional standards are upheld without being rigid. Eg: Rule 4(h) requires a ‘good standing’ certificate, but the BCI can make exceptions after holistic verification.

    Which laws and judgments guide India’s regulation of foreign legal practice?

    • Constitutional Framework under Union List: Legal practice in India is governed under Entries 77 and 78 of the Union List (Seventh Schedule, Constitution of India), making it a sovereign regulatory domain, distinct from trade and commerce. Eg: Legal services are not treated as tradable commodities, hence excluded from Free Trade Agreements (FTAs).
    • Bar Council of India Act and Professional Standards: The Advocates Act, 1961 and the Bar Council of India (BCI) rules provide the statutory mandate for regulating legal education, enrolment, and conduct of lawyers in India. Eg: The BCI Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms (2023) ensure ethical compliance and reciprocity.
    • Bar Council of India vs A.K. Balaji (2018): Held that foreign firms can’t set up offices but can advise clients on fly-in, fly-out basis.
    • Lawyers Collective vs BCI (2009): Reiterated that foreign firms must follow Indian law to practice in any capacity.

    What are the implications of applied ethics?

    • Guides Real-World Decision Making: Applied ethics helps individuals and institutions make morally sound decisions in specific practical fields such as medicine, law, business, or environmental policy. Eg: In medical ethics, principles like informed consent ensure that patients are not treated without their knowledge or will.
    • Resolves Ethical Dilemmas in Professional Practice: It provides frameworks to address conflicting moral values in complex situations, balancing individual rights, social good, and professional duty. Eg: In business ethics, whistleblowing policies balance the duty to the employer with the public’s right to know about harmful practices.

    Note: Applied Ethics is a branch of ethics that deals with the practical application of moral principles to real-world issues and professional fields.

    Way forward: 

    • Strengthen Bilateral Legal Dialogue Mechanisms: India can establish a structured legal diplomacy framework with countries like the U.S. to address concerns through dialogue rather than trade disputes.
    • Introduce a Phased Liberalisation Model with Safeguards: India can consider a calibrated liberalisation of legal services with clearly defined transition periods, limited practice areas (e.g., foreign law, arbitration), and stringent professional standards to ensure reciprocity and ethical compliance while maintaining regulatory control.

    Mains PYQ:

    [UPSC 2018] India and USA are two large democracies. Examine the basic tenets on which the two political systems are based.

    Linkage:  These basic tenets influence legal and regulatory philosophies. The article underscores that India’s rules are not “roadblocks” but a “balanced approach” to liberalizing its legal ecosystem in a “structured and regulated manner. The understanding of the foundational differences in how these two democracies approach regulation, particularly in a professional service sector, is crucial for comprehending India’s justification for its “legal bridge of reciprocity.

  • Appointment and Removal of High Court Judges

    Why in the News?

    The Centre will bring a motion of removal against a Judge of the Allahabad High Court and has initiated the process of building an all-party consensus for this action.

    Qualifications of Judges of High Court:

    • Article 217(2) of the Constitution states that a person is qualified if:
      • They have held judicial office in India for at least 10 years, or
      • Have been an advocate in a High Court (or more than one in succession) for at least 10 years.
    • Tenure: As per Article 217(1), a High Court judge holds office till the age of 62 years.
    • Disputes over Age: Under Article 217(3), if a question arises regarding a judge’s age, the President, in consultation with the CJI, makes the final decision.

    Appointment Process of High Court Judges:

    • Constitutional Basis: The Article 217 of the Constitution provides that High Court judges are appointed by the President of India after consultation with the Chief Justice of India (CJI), the Governor of the state, and, in the case of judges (not Chief Justices), the Chief Justice of the High Court concerned.
    • Role of the Collegium System: The Collegium, comprising the CJI and 2 senior-most judges of the Supreme Court, plays a key role in recommending names for appointments. It ensures collaborative decision-making and maintains the independence of the judiciary.
    • Procedure:
      1. The Chief Justice of the High Court initiates the recommendation.
      2. The proposal is forwarded to the Chief Minister, who advises the Governor.
      3. The Governor sends it to the Union Law Minister, who places it before the Prime Minister, and then the President for final approval.
    • Policy for Chief Justices: To prevent local bias, Chief Justices of High Courts are generally appointed from outside the state.
    • Appointments and Transfers: The CJI and senior judges of the Supreme Court also decide on transfers of High Court judges, ensuring judicial autonomy and minimizing executive influence.

    Removal:

    • Process: Judges of the High Court (and Supreme Court) can only be removed through removal, not by executive action.
      • Requires a motion signed by at least 100 Lok Sabha MPs or 50 Rajya Sabha MPs.
      • The motion is examined by a three-member committee.
      • If the committee finds grounds, the motion is debated and must be passed by a two-thirds majority in both Houses of Parliament.
    • Legal Framework: The Judges (Inquiry) Act, 1968 outlines the detailed procedure for investigating and acting upon misconduct by judges.
    • In-House Inquiry Mechanism: For internal disciplinary matters:
      • The CJI may order a preliminary inquiry based on credible complaints.
      • A three-judge panel is constituted if allegations are serious.
      • If the committee confirms misconduct, the CJI may ask the judge to resign.
      • If the judge refuses, the judicial work is withdrawn, and removal may be considered.

    Historical Removal Efforts:

    • No judge has been impeached in India, though attempts have been made, including the failed motions against Justice V Ramaswami (1993) and Justice Soumitra Sen (2011).
    • Justice V Ramaswami (1993): Faced removal for financial misconduct, but the motion failed in the Lok Sabha.
    • Justice Soumitra Sen (2011): Resigned after removal proceedings for misappropriating funds.
    • Justice K Veeraswamy: Chief Justice of Madras HC, investigated for corruption but challenged the investigation. The case remained unresolved until his death in 2010.
    • Justice Shamit Mukherjee (2003), Justice Nirmal Yadav (2008), and Justice SN Shukla (2017): Faced criminal charges for corruption after in-house inquiries found substantial evidence against them.

     

    [UPSC 2007] Consider the following statements:

    1. The mode of removal of a Judge of a High Court in India is the same as that of the removal of a Judge of the Supreme Court. 2. After retirement from office, a permanent Judge of a High Court cannot plead or act in any court or before any authority in India.

    Which of the statements given above is/are correct?

    Options: (a) 1 only*  (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2

     

  • Making a Law cannot amount to Contempt of Court: Supreme Court

    Why in the News?

    The Hon’ble Supreme Court has ruled that any law passed by Parliament or a State Legislature cannot be considered an act of contempt of court.

    Supreme Court’s Verdict on the Issue:

    • Context: The Court heard a 2012 contempt plea, alleging that the Chhattisgarh government violated its 2011 ruling against supporting Salwa Judum and arming tribals as SPOs.
    • Disputed Law: Petitioners argued the Chhattisgarh Auxiliary Armed Police Force Act, 2011 violated the earlier ruling.
    • Court’s Clarification: Passing a new law is within the plenary powers of legislatures and cannot be treated as contempt unless declared unconstitutional.
    • Proper Remedy: The correct approach is to challenge the law’s validity, not to file for contempt.
    • Separation of Powers: The Court upheld that legislature can modify or override judgments through new laws, if they respect constitutional boundaries.

    About Contempt of Court:

    • Purpose: Contempt of court refers to actions or behaviors that are disrespectful to, or that obstruct or interfere with, the administration of justice by a court. It protects the authority and dignity of the judiciary from acts that obstruct or interfere with justice.
    • Constitutional Basis:
      • Article 129 allows the Supreme Court to punish for its own contempt.
      • Article 215 grants the same power to High Courts.
      • Article 19(2) permits reasonable speech restrictions for contempt cases.
    • Legal Definition: The Contempt of Courts Act, 1971 defines contempt; the 2006 amendment allows truth and good faith as defences.
    • Types:
      • Civil Contempt is the wilful disobedience of court orders.
      • Criminal Contempt involves actions that scandalise the court, interfere with proceedings, or obstruct justice.
    • Punishment: Offenders may face up to 6 months imprisonment, or a ₹2,000 fine, or both.
    • What Is Not Contempt: Fair reporting and genuine criticism of judgments after disposal are not considered contempt.
    [UPSC 2022] Consider the following statements:

    1. Pursuant to the report of H.N. Sanyal Committee, the Contempt of Courts Act, 1971 was passed.

    2. The Constitution of India empowers the Supreme Court and the High Courts to punish for contempt of themselves.

    3. The Constitution of India defines Civil Contempt and Criminal Contempt.

    4. In India, the Parliament is vested with the powers to make laws on Contempt of Court.

    Which of the statements given above is/are correct?

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

     

  • Permanent Lok Adalats 

    Why in the News?

    Permanent Lok Adalats in as many as 16 districts of Rajasthan have ceased functioning owing to the non-extension of tenure of their presiding officers and members.

    About Permanent Lok Adalats (PLAs) 

    • Legal Basis: PLAs are statutory bodies established under Section 22-B of the Legal Services Authorities Act, 1987.
    • Establishment: They were introduced in 2002 to offer speedy and affordable dispute resolution for public utility services.
    • Disputes Handled: PLAs resolve issues related to transport (air, road, water), postal, telecom, electricity, water supply, sanitation, healthcare, and insurance.
    • Composition: Each PLA has a Chairman (a current or retired District Judge or higher) and 2 members with experience in the relevant public utility sectors.
    • Functioning: Unlike regular Lok Adalats, PLAs operate on a continuous basis and are always available for dispute resolution.
    • Jurisdiction Limit: They can hear cases involving claims up to ₹1 crore but cannot take up non-compoundable criminal cases.
    • Unique Power: If conciliation fails, the PLA has the authority to adjudicate the dispute and issue a final and BINDING award, just like a civil court.

    Back2Basics: Lok Adalats vs Permanent Lok Adalats

    Lok Adalats Permanent Lok Adalats 
    Nature Ad hoc, held occasionally Permanent, functional continuously
    Jurisdiction Broad (civil, compoundable criminal, family, etc.) Limited to public utility service disputes
    Dispute Stage Usually post-litigation Pre-litigation stage only
    Panel Composition Judicial officers, lawyers, social workers Chairman (Judge) + 2 experts in utility services
    Conciliation Role Only conciliatory; no decision if no settlement Can adjudicate if no settlement is reached
    Decision Binding only if parties agree Award is final and binding, with no appeal
    Legal Status Decree of a civil court Also a civil court decree, but with adjudication power
    Appeal Provision No appeal, but fresh suit possible No appeal, but constitutional remedies may apply

     

    [UPSC 2009] With reference to Lok Adalats, consider the following statements:

    1. An award made by a Lok Adalat is deemed to be a degree of a civil court and no appeal lies against thereto before any court.

    2. Matrimonial/Family disputes are not covered under Lok Adalat.

    Which of the statements given above is/are correct?

    Options: (a) 1 only * (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2

     

  • Justice B.R. Gavai takes charge as 52nd CJI

    Why in the News?

    Justice B.R. Gavai has been sworn in as the 52nd Chief Justice of India (CJI).

    About the Chief Justice of India:

    • The CJI is the head of the Supreme Court and the highest-ranking judicial officer in the country.
    • As the “Master of the Roster,” the CJI has the exclusive authority to:
      • Constitute benches
      • Allocate cases among judges
      • Decide the schedule of hearings
    • The CJI leads the judicial and administrative functions of the Supreme Court.
      • Holds administrative control as recognised in State of Rajasthan v. Prakash Chand (1997).
    • The CJI is referred to as “first among equals” among Supreme Court judges.

    Powers and functions of the CJI:

    • Judicial Functions:
      • Assigns judges to the Constitution Benches. (Article 145)
      • Handles interpretation of important legal and constitutional matters. (Article 145)
      • Exercises judicial leadership by steering jurisprudential direction. (Article 145)
      • Exercises judicial authority in matters of national significance. (Article 136)
      • Protects fundamental rights through the Supreme Court’s original and appellate jurisdiction. (Article 32)
    • Administrative Functions:
      • Maintains court roster and case listing. (Derived from judicial precedent and administrative conventions)
      • Supervises court staff and administration. (Based on administrative authority of the CJI)
      • Ensures smooth functioning of the Supreme Court. (Supreme Court Rules, 2013)
      • Holds disciplinary authority over subordinate judicial officers. (Administrative powers acknowledged in precedents)
      • Engages in administration of justice at the highest level. (Overarching responsibility under Article 145)
    • Advisory Function:
      • Provides advisory input when consulted by the President. (Article 143)

    Appointment and Terms:

    • Article 124 of the Constitution empowers the President of India to appoint the CJI.
    • Traditionally, the senior-most judge of the Supreme Court is appointed.
    • Exceptions to this practice:
      • 1973: Justice A.N. Ray appointed over 3 senior judges.
      • 1977: Justice M.H. Beg appointed over Justice H.R. Khanna.
    • Qualifications as outlined in Article 124(3):
      • Must be a citizen of India, and:
      • Served at least five years as a High Court judge, or
      • Practised at least ten years as a High Court advocate, or
      • Deemed a distinguished jurist by the President.

    Selection Procedure:

    • Governed by the Memorandum of Procedure for Appointment of Supreme Court Judges.
    • The Union Law Minister seeks the outgoing CJI’s recommendation.
    • The recommendation is processed as follows:
      • Sent to the Prime Minister by the Law Ministry.
      • Prime Minister advises the President.
      • President of India appoints the new CJI.
    • No specific timeline is defined — the recommendation must be made at the “appropriate time”.

    Tenure and Removal:

    • CJI serves until the age of 65 years.
    • Can only be removed through removal under Article 124(4):
      • Requires approval by both Houses of Parliament.
      • Must be supported by:
        • A majority of total membership, and
        • A two-thirds majority of members present and voting.
      • Grounds for removal: Proven misbehavior or incapacity.
    [UPSC 2021] With reference to the Indian judiciary, consider the following statements:

    1. Any retired judge of the Supreme Court of India can be called back to sit and act as a Supreme Court judge by the Chief Justice of India with the prior permission of the President of India.
    2. A High Court in India has the power to review its own judgment as the Supreme Court does

    Which of the statements given above is/are correct?

    Options:  (a) 1 only  (b) 2 only (c) Both 1 and 2 * (d) Neither I nor 2

     

  • How the judiciary maintains accountability

    Why in the News?

    The recent remarks made by the Vice-President of India about the role of judges have raised serious concerns and need to be carefully examined.

    What concerns arise from the Vice-President’s comments on judges’ roles in India?

    • Undermines Judicial Authority: Calling judges a “super parliament” questions the legitimacy of judicial review — a core function to uphold the Constitution. Eg: Criticism of court directions to Governors on bill assent.
    • Erosion of Constitutional Balance: His comments disrupt the delicate balance among the legislature, executive, and judiciary by implying judicial overreach without constitutional basis. Eg: In cases like Kesavananda Bharati v. State of Kerala (1973), the Supreme Court protected constitutional principles through its basic structure doctrine—critical for maintaining checks and balances.
    • Erodes Public Trust: Statements from high offices may weaken public faith in judicial impartiality and independence. Eg: Comments implying judges are unaccountable raise doubts on rule of law.

    Why is the term “super parliament” problematic in India’s parliamentary system?

    • Contradicts the Principle of Popular Sovereignty: Parliament derives its authority from the people; no organ, including the judiciary, can override it. Calling the judiciary a “super parliament” distorts this hierarchy. Eg: In Rojer Mathew v. South Indian Bank Ltd. (2019), the Supreme Court clarified that judicial review strengthens—not replaces—parliamentary supremacy.
    • Misrepresents the Role of Judicial Review: Judicial review is a constitutional mechanism to check the validity of laws—not an attempt to legislate. Calling it a “super parliament” falsely equates judicial scrutiny with lawmaking. Eg: In Minerva Mills v. Union of India (1980), the Court struck down amendments violating the Constitution’s basic structure without encroaching on the legislative domain.
    • Undermines Separation of Powers: The term falsely suggests that the judiciary exceeds its mandate, eroding the balance between the three organs of government enshrined in the Constitution. Eg: The L. Chandra Kumar v. Union of India (1997) judgment upheld judicial review as part of the basic structure, emphasizing that courts act within their defined constitutional limits.

    How does the Constitution ensure judicial independence and separation of powers?

    • Fixed Tenure and Security of Judges: Judges of the Supreme Court and High Courts enjoy security of tenure and can only be removed through a rigorous impeachment process, ensuring they are free from executive or legislative pressure. Eg: The impeachment process under Article 124(4) was invoked in the case of Justice V. Ramaswami (1993), though it did not lead to removal, demonstrating the difficulty of arbitrary dismissal.
    • Financial Independence of the Judiciary: The salaries, allowances, and pensions of judges are charged on the Consolidated Fund of India and are not subject to parliamentary vote, protecting them from financial manipulation. Eg: This provision, under Article 112 and Article 125, ensures that the executive cannot curtail judicial functioning by reducing funds.
    • Constitutional Authority of Judicial Review: The Constitution explicitly empowers courts to review laws and executive actions for constitutional validity, preserving checks and balances between organs of government. Eg: In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court asserted its authority to strike down amendments violating the Constitution’s basic structure.

    What justifies the judiciary setting deadlines for the President to clear Bills in line with popular sovereignty?

    • Fixed Tenure and Security of Judges: Judges of the Supreme Court and High Courts enjoy security of tenure and can only be removed through a rigorous impeachment process, ensuring they are free from executive or legislative pressure. Eg: The impeachment process under Article 124(4) was invoked in the case of Justice V. Ramaswami (1993), though it did not lead to removal, demonstrating the difficulty of arbitrary dismissal.
    • Financial Independence of the Judiciary
       The salaries, allowances, and pensions of judges are charged on the Consolidated Fund of India and are not subject to parliamentary vote, protecting them from financial manipulation. Eg: This provision, under Article 112 and Article 125, ensures that the executive cannot curtail judicial functioning by reducing funds.

    Why is the claim that judges are above the law considered irrational?

    • Judges are bound by the Constitution and Rule of Law: Judges operate strictly within the constitutional framework and are accountable to it. Any violation of constitutional provisions by a judge amounts to “proved misbehaviour” and can lead to removal. Eg: Article 124(4) allows Parliament to impeach a Supreme Court judge for proven misbehaviour or incapacity, showing they are not immune from the law.
    • Parliament can override judicial decisions by making new laws: If the judiciary overreaches or issues controversial verdicts, Parliament can counter it through legislative action, reinforcing democratic accountability. Eg: After the Shah Bano case (1985), Parliament passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, effectively reversing the Court’s judgment.

    Way forward: 

    • Respect Constitutional Boundaries: All constitutional authorities should uphold the principle of separation of powers and avoid statements that may undermine public trust in institutions.
    • Promote Constructive Dialogue: Encourage open, respectful discussions between the judiciary and executive to resolve differences while maintaining democratic values.

    Mains PYQ:

    [UPSC 2020] Judicial Legislation is antithetical to the doctrine of separation of powers as envisaged in the Indian Constitution. In this context justify the filing of large number of public interest petitions praying for issuing guidelines to executive authorities.

    Linkage:  Judicial action (issuing guidelines to the executive) to the separation of powers doctrine. It discusses judicial legislation, which is when courts effectively create law, blurring the lines between the judiciary and legislature. This raises concerns about accountability – to whom is the judiciary accountable when it is perceived to be legislating?

  • Power and freedom: On the Senthilbalaji case

    Why in the News?

    On April 23, the Supreme Court told Tamil Nadu Minister V. Senthilbalaji, who has been out on bail since September 2024 in a money laundering case, to choose between keeping his position or his freedom. This was an expected statement.

    Why did the Supreme Court question V. Senthilbalaji’s continuation in office while on bail?

    • Conflict of Interest Between Bail and Office: The Supreme Court questioned V. Senthilbalaji’s continuation in office while on bail in a money laundering case, suggesting that he should choose between his ministerial position and his freedom. Eg: The Court pointed out the issue of a person facing serious criminal charges holding a high office of responsibility.
    • Concerns About Potential Witness Tampering: The Court expressed concerns that Senthilbalaji might tamper with evidence or influence witnesses due to his position of power. Eg: Justice Oka’s remark that Senthilbalaji might prevent witnesses from testifying indicated the gravity of the situation.
    • Premature Re-induction Into the Cabinet: The Supreme Court had previously granted bail to Senthilbalaji not on merits, but because he had already served one year in detention. His return to the Cabinet shortly after this raised doubts, as the Court had not cleared him of the charges. Eg: This was exemplified by the Court’s remark that it had made a “mistake” in granting him bail.

    What concerns did the Supreme Court raise about Senthilbalaji’s conduct?

    • Dishonest Conduct and Risk of Evidence Tampering: The Supreme Court raised concerns about Senthilbalaji’s dishonest conduct and the potential risk of him tampering with evidence or influencing witnesses in the case. Eg: Justice Oka’s remark about Senthilbalaji ensuring no witnesses come to the box reflected this concern.
    • Inappropriate Return to the Cabinet While Facing Serious Charges: The Court questioned the propriety of Senthilbalaji being re-inducted into the Cabinet while facing serious criminal charges. Eg: The Court had previously stated that granting bail was not based on merits, but on the time already served, which raised doubts about his fitness for office.

    Why is Senthilbalaji’s re-induction into the Cabinet legally scrutinized?

    • Bail Conditions Not Fully Met: Senthilbalaji’s re-induction into the Cabinet is legally scrutinized because he was granted bail not on merits but on the ground that he had already spent one year in incarceration as an undertrial. Eg: The Court had questioned his return to the Cabinet just after granting him bail, highlighting concerns over his ongoing legal situation.
    • Impact on Fair Trial and Public Perception: His re-induction raises questions about the fairness of his trial and the potential to undermine justice. Eg: The Supreme Court had earlier expressed its objection to his return to the Cabinet, stating that it could negatively affect the victims of the job scandal and the integrity of the trial process.

    Why should Senthilbalaji avoid staying in the Cabinet?

    • Legal and Ethical Concerns: Senthilbalaji’s continued stay in the Cabinet raises legal and ethical issues due to the money laundering case against him. Eg: The Supreme Court’s remarks about the possibility of tampering with evidence and influencing witnesses highlight the risks of him holding a position of power while facing serious charges.
    • Risk of Damage to Reputation and Governance: His re-induction into the Cabinet could harm the government’s reputation and undermine public trust in governance. Eg: The Court had earlier granted him bail on humanitarian grounds, not on merits, and his return to the Cabinet despite ongoing charges could be seen as improper, potentially leading to political fallout.

    Way forward: 

    • Resignation for Upholding Integrity: Senthilbalaji should voluntarily resign from the Cabinet to maintain the integrity of the government and avoid further legal scrutiny.
    • Clear Legal Resolution: A clear and swift legal resolution should be sought, ensuring that the charges are addressed transparently, without political interference, to restore public confidence.

    Mains PYQ:

    [UPSC 2024] The Doctrine of Democratic Governance makes it necessary that the public perception of the integrity and commitment of civil servants becomes absolutely positive. Discuss.

    Linkage: Although focused on civil servants, the underlying principle of integrity and public perception in governance is relevant to the case of a Minister like Mr. Senthilbalaji, especially given the Supreme Court’s observations on his conduct.

  • Is India witnessing judicial despotism?

    Why in the News?

    Recently, a number of court rulings have led many people to question the powers and intentions of the Supreme Court. Although criticism of the judiciary is not new, it has increased.

    What is the significance of judicial review in the Indian Constitution?

    • Upholds Constitutional Supremacy: Judicial review ensures that all laws and actions by the government are in line with the Constitution. Eg: In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court held that Parliament cannot alter the basic structure of the Constitution, reinforcing constitutional supremacy.
    • Protects Fundamental Rights: It provides a mechanism for individuals to challenge laws or executive actions that violate their fundamental rights. Eg: In Maneka Gandhi v. Union of India (1978), the court ruled that the right to life and personal liberty under Article 21 cannot be violated without just, fair, and reasonable procedure.
    • Maintains Checks and Balances: Judicial review prevents arbitrary use of power by the legislature or executive, maintaining the balance of power among the three branches of government. Eg: In Minerva Mills v. Union of India (1980), the court struck down parts of the 42nd Amendment that tried to limit the power of judicial review itself, preserving the judiciary’s role as a check on Parliament.

    How is it related to Article 13?

    • Declares Inconsistent Laws Void: Article 13(1) & (2) state that any law that violates Fundamental Rights is void to the extent of the violation. This empowers the judiciary to review and strike down such laws. Eg: In A.K. Gopalan v. State of Madras (1950), although the court upheld the Preventive Detention Act, the case established the judiciary’s power to examine laws under Article 13.
    • Forms the Basis for Judicial Review: Article 13 acts as the foundation for judicial review by mandating that all laws (past and future) must conform to Fundamental Rights. Eg: In Kesavananda Bharati v. State of Kerala (1973), the court used Article 13 to assert that even constitutional amendments are subject to judicial review if they violate the basic structure or Fundamental Rights.
    • Ensures Protection Against State Actions: Article 13 defines “law” to include ordinances, orders, bye-laws, rules, regulations, etc., thereby subjecting all state actions to judicial scrutiny. Eg: In State of West Bengal v. Committee for Protection of Democratic Rights (2010), the court affirmed that Article 13 covers all state actions, ensuring their consistency with Fundamental Rights.

    How did the Supreme Court’s activism during the Emergency impact its role in protecting democracy?

    • Judicial Abdication in the ADM Jabalpur Case: The Court failed to protect civil liberties by ruling that even the right to life could be suspended during the Emergency. Eg: ADM Jabalpur v. Shivkant Shukla (1976) – The majority held that citizens had no remedy if the state detained them illegally during Emergency, weakening democratic safeguards.
    • Erosion of Public Faith in Judiciary: The decision in ADM Jabalpur was widely criticized and seen as the Court yielding to executive pressure, leading to a decline in public confidence. Eg: Justice H.R. Khanna’s lone dissent defending civil liberties became a symbol of judicial integrity, but the majority judgment damaged the Court’s image.
    • Shift Towards Judicial Activism Post-Emergency: In response to its failure, the Court later adopted a more proactive role in defending rights through Public Interest Litigations (PILs). Eg: Maneka Gandhi v. Union of India (1978) – The Court expanded the scope of Article 21 (Right to Life and Personal Liberty), overturning its narrow view in earlier cases.
    • Strengthening of Basic Structure Doctrine: After the Emergency, the judiciary reinforced its role as a guardian of the Constitution, making it clear that even Parliament cannot amend the basic structure. Eg: Minerva Mills v. Union of India (1980) – The Court reaffirmed that judicial review is a part of the basic structure and cannot be taken away.
    • Restoration of Accountability and Civil Rights: The Court became more vigilant in ensuring that executive actions respect democratic principles and individual freedoms. Eg: The growth of PILs in the 1980s allowed the judiciary to directly address the grievances of the marginalized and hold the state accountable.

    Why is the Supreme Court’s power under Article 142 considered essential?

    • Ensures Complete Justice in Exceptional Situations: Article 142 empowers the Supreme Court to pass any decree or order necessary for doing “complete justice” in any case before it, even if no specific law exists. Eg: Union Carbide Case (Bhopal Gas Tragedy, 1989) – The Court invoked Article 142 to ensure compensation for victims, overriding procedural hurdles.
    • Fills Legislative or Procedural Gaps Temporarily: It allows the Court to address legal voids until Parliament or the executive acts, ensuring justice is not delayed due to technicalities. Eg: Supreme Court guidelines on sexual harassment at workplaces (Vishaka v. State of Rajasthan, 1997) – The Court framed guidelines under Article 142 in absence of legislation.

    What are the concerns surrounding its misuse?

    • Overreach and Violation of Separation of Powers: There is a risk that the Court might overstep its boundaries, encroaching on the domain of the executive or legislature, thus undermining the principle of separation of powers.Eg: Judicial intervention in policy matters – If the Court starts making decisions on matters that should be left to the government, like executive policies, it can be seen as an overreach.
    • Potential for Arbitrary Decisions: The broad discretion granted by Article 142 can sometimes lead to arbitrary decisions, which may not align with established legal principles or may be seen as politically motivated. Eg: Judgment in the Babri Masjid Case (2019) – The Court’s intervention in the Babri case was criticized for favoring peace over legal principles, potentially opening doors for biased interpretations.

    How does the judiciary uphold the Constitution without overstepping the separation of powers between the legislature and the executive?

    • Judicial Review with Restraint: The judiciary exercises judicial review carefully, ensuring it only intervenes in cases where constitutional violations or fundamental rights are at stake, and refrains from delving into policy decisions better left to the executive or legislature. Eg: Right to Privacy Case (2017) – The Supreme Court upheld the right to privacy as a fundamental right, checking executive overreach but refraining from interfering with legislative or executive policy decisions.
    • Respect for Legislative and Executive Domains: The judiciary respects the roles and powers of the legislature and executive, ensuring that it does not encroach on their function while interpreting the law within its constitutional framework. Eg: Constitutionality of the GST (2017) – The Supreme Court reviewed the constitutional validity of the Goods and Services Tax (GST) but did not interfere with the operational execution, leaving implementation to the executive.

    Way forward: 

    • Ensure Judicial Independence: Strengthen mechanisms to safeguard the judiciary from executive and legislative influence, ensuring impartiality and constitutional integrity.
    • Foster Collaborative Governance: Encourage constructive dialogue between the judiciary, legislature, and executive to maintain balance and prevent unnecessary judicial overreach.

    Mains PYQ:

    [UPSC 2015] Starting from inventing the ‘basic structure’ doctrine, the judiciary has played a highly proactive role in ensuring that India develops into a thriving democracy. In light of the statement, evaluate the role played by judicial activism in achieving the ideals of democracy.

    Linkage: In this article, evaluate judicial activism. Some people see it as essential for protecting the Constitution, while others think it goes too far, interfering with the roles of the legislature and executive, and might even lead to judges having too much power.

  • [11th April 2025] The Hindu Op-ed: Are existing mechanisms effective in combating judicial corruption?

    PYQ Relevance:

    [UPSC 2017] Critically examine the Supreme Court’s judgement on ‘The National Judicial Appointments Commission Act, 2014’ concerning the appointment of judges of higher judiciary in India.

    Linkage: The integrity of the appointment process is a key mechanism to prevent the entry of potentially corrupt individuals into the judiciary. Debates around judicial appointments often touch upon the need for transparency and meritocracy to safeguard against various forms of impropriety, including corruption.

     

    Mentor’s Comment:  The current system to deal with corruption in the judiciary includes in-house inquiries, impeachment, and oversight by the Supreme Court and High Courts. However, it is often slow, and secretive, and rarely results in strict action. Lack of transparency and political influence can weaken its impact, making it less effective in ensuring full accountability of judges.

    Today’s editorial talks about problems in making judges more accountable. It highlights gaps in how judicial misconduct is handled and why better checks are needed. This topic is useful for UPSC GS Paper 2 (governance, transparency) and GS Paper 4 (ethics, integrity in public life).

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    Let’s learn!

    Why in the News?

    Last month, a large amount of unaccounted cash was reportedly found at the official home of former Delhi High Court judge Justice Yashwant Varma. In response, Chief Justice of India, Sanjiv Khanna, started an internal inquiry into the matter.

    What are the limitations of the impeachment process in ensuring judicial accountability?

    • High Threshold for Removal: The impeachment process requires a two-thirds majority in both Houses of Parliament and an absolute majority of total membership. This makes it extremely difficult to impeach a judge even in cases of credible misconduct. Eg: No judge of the Supreme Court or High Court has ever been successfully impeached in independent India, despite allegations — such as in the case of Justice V. Ramaswami (1993), whose impeachment failed due to political abstentions.
    • Over-Reliance on Political Consensus: The process is politically driven, requiring broad support across parties, which may not be feasible in a fragmented or polarized Parliament. Political considerations often override judicial integrity in decision-making.
    • Delayed and Ineffective as a Deterrent: The process is slow, opaque, and reactive, initiated only after significant public outcry or media coverage. It fails to act as a timely or effective deterrent, allowing misconduct to go unchecked. Eg: Justice Nirmal Yadav of the Punjab and Haryana High Court was acquitted nearly 15 years after a corruption inquiry, despite early evidence.

    Why is there a demand to institutionalise transparency in judicial inquiries?

    • Prevents Perception of Shielding Judges: Transparency helps counter the belief that the judiciary protects its own members in misconduct cases. Eg: In the Justice Yashwant Varma case, the Supreme Court proactively released CCTV footage showing recovery of unaccounted cash to pre-empt accusations of cover-up.
    • Builds Public Trust and Confidence: In an era of social and mass media scrutiny, opaque proceedings can fuel public suspicion and damage the judiciary’s credibility. Making inquiry reports public can reaffirm accountability and institutional integrity.
    • Reduces Speculation and Misinformation: Lack of official communication can lead to rumours or leaks, which may distort facts and undermine due process. Eg: Experts have suggested appointing dedicated communications personnel in the judiciary to clarify facts and handle sensitive disclosures responsibly.

    Who informally influences judicial appointments, and how does it impact the collegium?

    • Executive’s Role in Informal Consultations: Even before formal recommendations, the executive is consulted informally, allowing it to influence selections. Eg: The Union Government often shares IB (Intelligence Bureau) inputs that can sway or stall decisions by the collegium.
    • De Facto Executive Veto: The government can withhold or delay approval of names without giving reasons, effectively creating a veto power. Eg: Several appointments have been indefinitely delayed by the executive sitting on the collegium’s recommendations.
    • Impact on Transparency and Candidate Morale: This opaque and selective process discourages deserving candidates from participating in judicial selection. Eg: Many lawyers and judges avoid the process due to its lack of transparency and potential for humiliation.

    How can peer review within the judiciary be strengthened to prevent judicial misconduct?

    • Institutionalising Informal FeedbackRegularise the informal feedback already exchanged within legal circles into a formal review system. Eg: Concerns shared among judges and lawyers about a colleague’s integrity can be compiled and assessed systematically.
    • Involving Bar Associations: Inputs from bar associations can serve as early warnings of problematic judicial behaviour. Eg: If advocates repeatedly report bias or misconduct by a judge, it could trigger a formal internal review.
    • Mandatory Periodic Evaluations: Judges could undergo peer-reviewed performance evaluations at regular intervals. Eg: Evaluation of case disposal rates, conduct in court, and legal soundness of judgments by a panel of peers.
    • Disclosure of Conflicts of Interest: Enforce mandatory disclosures of family members practicing in the same court or other potential conflicts. Eg: If a judge’s relative practices in the same court, either the judge is transferred or the relative is barred from appearing.
    • Protection of Whistleblowers Within Judiciary: Create a safe mechanism for judges or staff to report unethical conduct without fear of retaliation. Eg: A junior judge or clerk reporting bribe attempts or unusual case assignments should be protected and heard confidentially.

    When can contempt laws allow public scrutiny without undermining judicial dignity?

    • When Criticism is in Good Faith and Based on Facts: Legitimate concerns or constructive criticism aimed at reform, not defamation, should be allowed. Eg: A lawyer or journalist pointing out procedural delays or lack of transparency in judicial appointments based on verified data.
    • When the Speech is Not Intended to Scandalise the Court: Public discourse that respects the institution but critiques specific actions or decisions helps improve accountability. Eg: Civil society groups questioning a controversial verdict or delay in inquiry, without using derogatory language.
    • When It Promotes Institutional Integrity: Scrutiny that leads to reform and helps maintain the credibility of the judiciary should not be penalised. Eg: Media coverage exposing corruption in the judiciary, like the Justice Yashwant Varma case, can lead to necessary reforms if done responsibly.

    Way forward:

    • Establish an Independent Judicial Oversight Body: A permanent and independent authority comprising retired judges, legal scholars, and public representatives can investigate complaints, oversee peer reviews, and recommend disciplinary action.
    • Codify Transparent Guidelines and Communication Protocols: Formulate clear, time-bound procedures for judicial appointments, disclosures, and inquiry mechanisms with mandatory public reporting (where appropriate). Eg: Publish annual integrity audits, conflict-of-interest registers, and inquiry outcomes (with due protection for sensitive data) to uphold public trust.