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Subject: Judiciary

  • High Court Judges’ Appointment under process: Centre

    Why in the News?

    The Union government has said that 219 proposals for the appointment of High Court judges by the Collegium are in various stages of processing.

    What is Collegium System?

    • The collegium system is the method used for the appointment and transfer of judges in the Supreme Court and High Courts of India.
    •  It is the Indian Supreme Court’s invention.
    • The term ‘Collegium’ does not find mention in the Constitution.
    • Constitutional Provisions:
      • Article 124: The President appoints the Chief Justice and other judges of the Supreme Court after consultations with judges of the Supreme Court and High Courts as deemed necessary.
      • Article 217: The President appoints High Court judges after consultations with the Chief Justice of India, the Governor of the state, and the Chief Justice of the High Court concerned

    Composition:

    1. Supreme Court Collegium:
      • A five-member body.
      • Headed by the Chief Justice of India (CJI).
      • Includes the four other senior most judges of the Supreme Court at that time.
    2. High Court Collegium:
      • Led by the Chief Justice of the respective High Court.
      • Includes the two senior most judges of that High Court.
      • Recommendations for appointments by a High Court collegium are sent to the government only after approval by the CJI and the Supreme Court collegium.

    Evolution: Three Judges Cases

    • First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
      • The Supreme Court, in a majority decision, held that the opinion of the Chief Justice of India is not binding on the executive in the matter of appointments and transfers of judges. The court ruled that the executive has primacy in judicial appointments.
    • Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
      • The Supreme Court, by a majority of 7:2, overruled the First Judges Case and held that the CJI’s opinion regarding judicial appointments and transfers should be given primacy.
      • The court established that the CJI should consult with the two senior-most judges of the Supreme Court before making recommendations for appointments and transfers, thereby creating a collegium system.
    • Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

    The procedure followed by the Collegium:

    Appointment of CJI

    • The President of India appoints the CJI and the other SC judges.
    • As far as the CJI is concerned, the outgoing CJI recommends his successor.
    • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
    • The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.

    Other SC Judges:

    • For other judges of the top court, the proposal is initiated by the CJI.
    • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
    • The consultees must record their opinions in writing and it should form part of the file.
    • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

    For High Courts:

    • The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
    • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
    • The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
    • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

    Qualifications for Appointment as a Supreme Court Judge:

    According to Article 124(3) of the Constitution, a person can be appointed as a judge of the Supreme Court if he or she:

    • Is a citizen of India.
    • Has served as a judge of a High Court for at least five years or in two such courts in succession.
    • Alternatively, has been an advocate of a High Court for at least ten years or in two or more such courts in succession.
    • Is a distinguished jurist in the opinion of the President.

    Qualifications for Appointment as a High Court Judge:

    • The person must have held a judicial office for at least 10 years in India, or
    • Must have been a practising advocate in a High Court for at least 10 years.
    • The person must be enrolled under the Bar Council of India.

    PYQ:

    [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 staffs 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?

    (a) 1 and 3 only

    (b) 3 and 4 only

    (c) 4 only

    (d) 1, 2, 3 and 4

  • Amidst politicians’ new reverence for the Constitution, one thing to remember 

    Why in the news? 

    Voters have cleverly embraced the idea of constitutional principles to protect their freedoms. It’s now everyone’s responsibility, including elected officials, citizens, and the judiciary, to ensure that there’s no overreach.

    Constitutional Provisions:

    • Article 99: Mandates that every member of Parliament must take an oath or affirmation to uphold the Constitution.
    • Third Schedule: Specifies the form of oath or affirmation that members of Parliament, judges of the Supreme Court, and High Courts must take.
    • Part III (Fundamental Rights): Guarantees civil liberties, such as the rights to equality, freedom of speech, and right to life.
    • Part IV (Directive Principles of State Policy): Provides guidelines for governance, directing the state in certain policy matters for the welfare of citizens.

    Basic Structure and Foundational Principles:

    • Kesavananda Bharati Case (1973): Established the doctrine that certain features of the Constitution are beyond the amending power of Parliament if they violate its “Basic Structure”, ensuring that fundamental principles like democracy, secularism, judicial review, and federalism cannot be altered.
    • Foundational Principles: Include the rule of law, separation of powers, judicial independence, and protection of fundamental rights.

    Basic Structure and foundational principles should never be allowed to be eclipsed                                     

    • Protection of Fundamental Rights: The Basic Structure doctrine protects fundamental rights and core principles like democracy, secularism, judicial independence, and federalism in India.
    • Preservation of Constitutional Balance: Eclipsing the Basic Structure and foundational principles could upset the delicate balance of powers among the legislature, executive, and judiciary. These principles ensure that no single branch of government becomes disproportionately powerful, thereby maintaining the checks and balances essential for democratic governance.
    • Upholding the Rule of Law: The Basic Structure doctrine reinforces the supremacy of the Constitution as the supreme law of the land. By preventing its core principles from being undermined or diluted through constitutional amendments or legislative actions, it ensures that all state actions, including laws passed by Parliament, are consistent with constitutional norms and the rule of law.

    Significance of “Judicial Overreach”:

    • Protection of Rights: Judicial overreach often arises when courts intervene to protect fundamental rights guaranteed by the Constitution, especially when legislative or executive actions are perceived to violate these rights.
    • Checks and Balances: It serves as a crucial check on the powers of the legislature and executive, ensuring that their actions conform to constitutional principles and do not exceed their authority.
    • Defending the Constitution: Courts may intervene to uphold the supremacy of the Constitution, ensuring that laws and actions comply with its provisions, including the Basic Structure doctrine established in the Kesavananda Bharati case.

    Criticisms of judicial overreach:

    • Interference with the Separation of Powers: Critics argue that judicial overreach interferes with the constitutional principle of separation of powers.
    • Lack of Accountability: Another criticism of judicial overreach is that the judiciary is not accountable to the people in the same way that elected representatives are. Because Judges are appointed, not elected 
    • Dilution of Democracy: Some critics argue that judicial overreach can undermine the democratic process by taking important decisions out of the hands of elected officials and placing them in the hands of judges.  

    Mains PYQ: 

    Q What was held in the Coelho case? In this context, can you say that judicial review is of key importance amongst the basic features of the Constitution? (UPSC IAS/2016)

  • Blaming court vacation for pendency misses the real problem

    Why in the news?

    A casual remark from a member of the Prime Minister’s Economic Advisory Council has reignited the debate on judges’ working hours and vacations.

    Reports on Case Pendencies:

    According to the “India Justice Report”, as of June 2020, cases remain pending for an average of three years in subordinate courts and five years in high courts, highlighting the extensive backlog.

    Issues of unfilled vacancies and lack of infrastructure/ Present challenges:

    • Overburdened Judiciary: Judges and courts are overburdened with excessive government litigation, new legislation adding to the workload, and the rising tide of litigation across various domains.
    • Infrastructure Deficits: Shortages in courtrooms and support staff, with national averages showing a 26% deficit in support staff. Insufficient infrastructure hampers the smooth processing of cases.
    • Quality Deficits: Uneven proficiency in language and legal knowledge among lawyers and judges contribute to procedural delays and suboptimal outcomes. Lengthy pleadings, paper books, and judgments further exacerbate the problem.
    • Vacancy Crisis: Many courts, including high courts and lower courts, face a significant shortage of judges, with vacancies averaging around 30% in high courts and 22% in subordinate courts. Some states, like Bihar and Meghalaya, have vacancies exceeding 30% for over three years.
      • Lack of administrative support and outdated procedures impede the efficient management of cases and court operations.

    What can be done?

    • Address Vacancies: Expedite the appointment process for vacant judicial positions and strive to achieve full complement in courts to alleviate workload pressures.
      • Set higher standards for judicial appointments and legal practice to ensure competence and proficiency among legal professionals.
      • Establish Permanent Administrative Secretariats (PAS) led by qualified court managers to assist judges in case management and administrative tasks.
    • Invest in Infrastructure: Build more courtrooms, hire additional support staff, and invest in technology to streamline court processes and enhance efficiency.
      • Allocate adequate resources to the judiciary to improve infrastructure, enhance administrative capabilities, and ramp up efficiency in justice delivery.
    • Prioritize Judicial Reform: Undertake comprehensive judicial reforms to address systemic issues, streamline processes, and enhance access to justice for all citizens.
      • Implement specialized courts, pre-trial mediation, and other alternative dispute resolution mechanisms to expedite case resolution and reduce backlog.

    Mains PYQ:

    Q Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India. (UPSC IAS/2017)

  • Supreme Court cautions on ‘history sheets’: All you need to know about the practice

    Why in the News?

    On May 7, a Bench comprising Justices Surya Kant and K V Viswanathan warned against the presence of “unfair, prejudicial, and atrocious mindsets” that perpetuate and validate caste prejudices.

    • It also directed all states and union territories to ensure that the ‘history sheets‘ maintained by their police forces are free from ‘caste biases’.
    • The Bench was adjudicating a petition filed by AAP MLA Amanatullah Khan, contesting a history sheet initiated against him and a proposal to designate him as a ‘bad character’ by registering his name in the surveillance register at Delhi’s Jamia Nagar police station.

    Did you know about the ‘History sheets’?

    • The term “history sheet” first appeared in the Punjab Police Rules of 1934. 
    • These rules authorized the opening of a history sheet against individuals reasonably believed to be habitually addicted to crime or aiding and abetting criminal activities, regardless of whether they have been convicted.

    How was the process of ‘history sheeting’ initiated?

    • The process of opening a history sheet is governed by police rules specific to each state, such as it is applicable in Punjab, Haryana, Himachal Pradesh, Delhi, and Chandigarh.
    • The initiation typically begins when the Station House Officer (SHO), who is the head of the police station, takes notice of an individual proven guilty in multiple cases or found to be consistently engaged in criminal activities.
    • Details included in the history sheet (Acc. Punjab Police Rules, 1934):
      • A history sheet must contain a detailed description of the individual, paying special attention to any peculiarities of appearance that can aid in identification.
      • It mentions the relations and connections of the individual. This provides clues regarding persons with whom the criminal is likely to associate.
      • It holds the details about any property owned by the criminal, as well as their mode of earning a livelihood, should be included.

    About Amanatullah Khan’s plea in the Supreme Court:

    • On May 13, 2022, the Station House Officer (SHO) of Jamia Nagar had submitted a dossier to the Assistant Commissioner of Police (ACP) and Deputy Commissioner of Police (DCP) proposing to open a history sheet and label him as a “Bad Character” in police records.
    • The proposal was accompanied by a list of 18 pending cases against Khan, including offenses such as intimidation, threatening, and riots. Khan claimed that he had been discharged, acquitted, or had the FIRs quashed in 14 of these cases.
    • Legal Battles: 
      • In January 2023, the Delhi HC dismissed Khan’s plea against the opening of the history sheet and the “Bad Character” tag, stating that the Delhi Police had followed due procedure and complied with the Punjab Police Rules, 1934.
      • Khan’s appeal to the SC was rejected, but the SC directed the police to ensure that details of his minor children and wife were not reflected in the history sheet.
      • Khan’s plea focused on protecting the dignity, self-respect, and privacy of his innocent family members, including minor relatives, from being compromised by inclusion in the history sheet.
    • Revisiting Police Procedures: The Delhi Police submitted that they would revisit the format for history sheets to ensure that the details of innocent family members are not compromised.
      • A Standing Order issued by the Delhi Police Commissioner on March 21, 2024, stated that details of minor relatives should not be included in the history sheet.

    BACK2BASICS

    Constitutional and Legal Provisions for accused person in India:

    • Article 20: This right protects against arbitrary and excessive punishment of an accused person, whether a citizen, a foreigner, or a legal person like a company or a corporation, etc.
    • Article 21: This right declares that no person shall be deprived of his life or personal liberty except according to the procedure established by law. This right is available to both citizens and non-citizens.
    • Section 50(1) of the CrPC: As per this section, every arrested person has the right to be treated with dignity and respect during detention.
      • This section ensures that individuals, including the accused, are not subjected to any form of physical or mental abuse while in custody, upholding the basic human rights of the accused.

    Way Forward:

    • Review and Revise Police Procedures: States and Union Territories should conduct a comprehensive review of their police procedures related to maintaining history sheets to ensure they are free from caste biases.
    • Training and Sensitization: Police personnel should undergo regular training and sensitization programs to raise awareness about caste biases and the importance of impartiality in law enforcement.

    Mains PYQ: 

    Q The jurisdiction of the Central Bureau of Investigation (CBI) regarding lodging an FIR and conducting probe within a particular State is being questioned by various States. However, the power of the States to withhold consent to the CBI is not absolute. Explain with special reference to the federal character of India.

  • What is Interim Bail?

    Why in the news?

    The Supreme Court has granted interim bail to Delhi Chief Minister Arvind Kejriwal in the liquor policy case till to campaign for the Lok Sabha elections.

    What is Interim Bail?

    • Interim bail in India is a temporary release granted to an accused person from custody under Section 439 Cr.
    • It can be granted to address urgent matters such as medical emergencies, family crises, or other significant personal issues.

    Legal Provisions for Interim Bail

    Interim bail in India is NOT explicitly defined under a specific statute but is derived from the discretionary powers granted to courts under various legal provisions.

    The most relevant laws and principles include:

    1. Code of Criminal Procedure, 1973 (CrPC): While the CrPC does not explicitly mention “interim bail,” it provides the framework for granting bail in general. Sections like 437 (bail in non-bailable cases by Magistrate), 438 (anticipatory bail), and 439 (special powers of High Court or Court of Session regarding bail) are used by courts to grant bail, including interim bail, based on judicial discretion.
    2. Constitutional Provisions: The Constitution of India under Article 21, which guarantees the right to life and personal liberty, is often interpreted to include the right to bail as part of the fair and just legal process.

     

    Back2Basics: What is Bail?

    • Bail is the conditional release of a defendant with the promise to appear in court when required.
    • The term also means the security that is deposited in order to secure the release of the accused.
    • In India’s legal world, the term offense has been categorized as bailable offenses and non-bailable under the Code of Criminal Procedure.

    Why need Bail?

    • Bail is a fundamental aspect of any criminal justice system.
    • A person can defend himself/herself better when he/she is free, thus ensuring free trial.
    • The practice of bail grew out of the need to safeguard the fundamental right to liberty.
    • Liberty is the right of one whose guilt has not yet been proven.

    Types of Bail in India

    • Depending upon the sage of the criminal matter, there are commonly three types of bail in India:
    1. Regular Bail: Granted to a person who has already been arrested and is in custody. This type of bail is provided under Sections 437 and 439 of the Code of Criminal Procedure, 1973 (CrPC). It allows the accused to be released from custody while the trial is ongoing.
    2. Anticipatory Bail: Under Section 438 of the CrPC, anticipatory bail is a pre-arrest legal process. It is granted when a person apprehends arrest on an accusation of having committed a non-bailable offence. This type of bail ensures that the accused will be released on bail in the event they are arrested.
    3. Interim Bail: This is temporary bail granted for a short period. Interim bail is often granted to allow the accused some relief until a final decision on their regular or anticipatory bail plea is made.

    Conditions for Grant of Bail in Bailable Offences

    • Section 436 of the Code of Criminal Procedure, 1973, lays down that a person accused of a bailable offense under IPC can be granted bail if:
    1. There are sufficient reasons to believe that the accused has not committed the offence.
    2. There is sufficient reason to conduct a further inquiry in the matter.
    3. The person is not accused of any offence punishable with death, life imprisonment or imprisonment up to 10 years.

    Conditions for Grant of Bail in Non-Bailable Offences

    • Section 437 of Code of Criminal Procedure, 1973 lays down that the accused does not have the right to apply for bail in non-bailable offences.
    • It is discretion of the court to grant bail in case of non-bailable offences if:
    1. The accused is a woman or a child, bail can be granted in a non-bailable offence.
    2. There is a lack of evidence then bail in non-Bailable offenses can be granted.
    3. There is a delay in lodging FIR by the complainant, bail may be granted.
    4. The accused is gravely sick.

     

    PYQ:

    [2021] With reference to India, consider the following statements :​

    1. Judicial custody means an accused is in the custody of the concerned magistrate and such accused is locked up in police station, not in jail.​

    2. During judicial custody, the police officer in charge of the case is not allowed to interrogate the suspect without the approval of the court.​

    Which of the statements given above is/are correct?​

    1. 1 only ​
    2. 2 only​
    3. Both 1 and 2 ​
    4. Neither 1 nor 2​
  • [3 May 2024] The Hindu Op-ed: The Judiciary’s Shadow over Standard-Essential Patents

    [3 May 2024] The Hindu Op-ed: The Judiciary’s Shadow over Standard-Essential Patents

    Mains PYQ Relevance: 

    Q) To achieve the desired objectives, it is necessary to ensure that the regulatory institutions remain independent and autonomous. Discuss in the light of experiences in the recent past. (UPSC IAS/2015)

    Q) The product diversification of financial institutions and insurance companies, resulting in the overlapping of products and services strengthens the case for the merger of the two regulatory agencies, namely SEBI and IRDA. Justify. (UPSC IAS/2013)

    Note4Students: 

    Prelims: Standard Essential Patents (SEP);

    Mains: The effect of judicial lethargy and activism on Standard essential patents (SEP);

    Mentor comments: There is a possible crisis brewing in India over how certain technology companies are wielding ‘standard essential patents’ (SEP) against the telecom manufacturing sector in India. This is a complex policy issue that has direct ramifications for India’s effort to build a domestic manufacturing industry for cellular phones. So far, the issues of regulating SEPs have been left to the judiciary, which, as an institution, has mostly missed the ball.

    Let’s learn

    —

    Why in the News?

    The government must put in place measures to regulate Standard Essential Patents before the judiciary causes further damage to India’s manufacturing dreams.

    What are ‘Standard Essential Patents’ (SEP)? 

    • These are the types of patents that cover technologies that are adopted by the industry as “standards”. For example, technologies such as CDMA, GSM, and LTE are all industry standards in the telecom sector. 
    • Technological standards are especially important to ensure the interoperability of different brands of cellular phones manufactured by different companies.
      • For example, once GSM was adopted as a standard, all manufacturers had to ensure that the handsets that they manufactured were compatible with GSM.

    The Opaque Model:

    • Countries with little innovation in the telecom sector, such as India, have minimal influence over the setting of standards or the licensing of Standard Essential Patents (SEPs). This lack of influence contributes to the opacity of the process.
    • Standard-setting organizations (SSOs) are primarily run by private technology companies, leading to a concentration of power and decision-making among these entities.
    • Owners of SEPs can demand extortionary royalties or licensing terms from manufacturers due to the lack of alternatives. This practice can block competition and hinder market entry for smaller players.
    • The lack of alternatives and the necessity for manufacturers to license SEPs create a “patent holdup” problem, where owners of SEPs can exploit their position to extract higher licensing fees.
    • Despite the theoretical expectation that SSOs would prevent unfair practices, the self-regulation model has failed in practice. This failure is evidenced by the record fines imposed on some SEP owners for engaging in anti-competitive practices.

    The Effect of Judicial Lethargy and Activism

    • Lack of Investigation into Abusive Licensing Practices: Due to judicial lethargy and delays, the Indian government has yet not investigated potentially abusive licensing practices of technology companies owning Standard Essential Patents (SEPs).  
    • Protracted Litigation: Litigation surrounding competition law issues has been mired in delays and remained pending for an extended period, resulting in a lack of resolution. For instance, a case involving Ericsson challenging the Competition Commission of India’s power lasted for seven years before a judgment was delivered.
    • Impact on Manufacturers: The prolonged litigation and uncertainty have adversely affected manufacturers, particularly Indian companies, who have been required to deposit substantial sums of money with the court during the pendency of trials. This has strained their financial resources and affected their ability to operate effectively.
    • Unprecedented Interim Orders: The Delhi High Court has issued unprecedented “deposit” orders, requiring manufacturers to deposit large sums of money with the court before trial.
      • These orders lack legal basis and are unfair to defendants, depriving them of working capital for the duration of the trial.
    • Impact on Investment and Manufacturing Sector: Judicial lethargy and activism have negative implications for the government’s efforts to attract investment in the manufacturing sector.
      • Delays and uncertainties in legal proceedings deter potential investors and undermine the effectiveness of government initiatives like the “production-linked incentives” scheme.
    • Questioning on the Policies of Government: The situation raises questions about the rationale behind government policies that incentivize manufacturing while overlooking issues related to abusive licensing practices by SEP owners. This inconsistency may hinder efforts to promote economic growth and job creation in the country.

    Way Forward:

    • Need for Government Intervention: There is a pressing need for the Indian government to intervene and implement measures to regulate SEPs. The current judicial delays and uncertainties surrounding SEPs are hindering India’s manufacturing aspirations.
    • Ensuring Fairness and Equity: Regulatory measures would aim to ensure fairness and equity in the licensing of SEPs, preventing monopolistic practices and extortionate royalties that could hinder competition and innovation.

  • [27th April 2024] Sounding the gavel on Curative Jurisdiction

    PYQ Relevance:

    Mains: 
    Q) What was held in the Coelho case? In this context, can you say that judicial review is of key importance amongst the basic features of the Constitution?(UPSC IAS/2016) 

    Q) 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. (UPSC IAS/2014) 

    Prelims:
    In India, Judicial Review implies (UPSC IAS/2017):
    a) The power of the Judiciary to pronounce upon the constitutionality of laws and executive orders.
    b) The power of the Judiciary to question the wisdom of the laws enacted by the Legislatures.
    c) The power of the Judiciary to review all the legislative enactments before they are assented to by the President.
    d) The power of the Judiciary to review its own judgements given earlier in similar or different cases.

    Note4Students: 

    Prelims: Difference between Curative Jurisdiction and Judicial review;

    Mains: Challenges related to Curative Jurisdiction ;

    Mentor comments: In 2002, the Court took on a new power called the “Curative Jurisdiction”. It is a power to correct its judgments, after they have become final. This is distinct from the power of review under Indian law, which enables all courts to rectify errors which are apparent from their records.The Court has a constitutional role to declare the law. The law must, and often does, progress with the growth in human knowledge and with societal change. The judgments of courts must reflect and sometimes trigger the changes in law. It is for this reason that courts modify their views. Examples of changes in the Court’s views include the right of privacy, decriminalisation of homosexuality and so on. Curative Jurisdiction is different. This is not merely the Court changing its view on a position of law but is a reversal of the Court’s own view in a specific case, above and beyond even the power of review.

    Let’s learn. 

    —

    Why in the news? 

    A top court that swings back and forth based on changing trends lacks the constancy and gravitas that is fundamental to a court of last resort. This article talks about the Curative Jurisdiction.

    Difference between Curative Jurisdiction and Judicial review

    • Curative Jurisdiction: Curative jurisdiction refers to the power of a court to review and correct its own judgments or orders to prevent a miscarriage of justice. It is a remedial mechanism available in exceptional cases where there has been a manifest error or violation of principles of natural justice that cannot be rectified through regular avenues like appeals or review petitions.
    • Judicial Review: Judicial review is the power of a court to review the actions or decisions of other branches of government (executive and legislative) or administrative bodies to ensure they comply with the constitution, laws, or established legal principles.

    The Delhi Metro Rail judgment:

    • Background of the Case: The case involves a dispute between Delhi Metro Rail Corporation Ltd. (DMRC) and Delhi Airport Metro Express Pvt Ltd (DAMEPL) regarding the termination of a long-term contract related to a stretch of the Delhi metro rail.
    • Basis of Termination: DAMEPL terminated the contract citing the presence of defects in the metro’s construction and invoked a termination clause that allowed termination if DMRC failed to cure such defects.
    • Arbitral Tribunal’s Decision: The Arbitral Tribunal ruled in favor of DAMEPL, upholding the termination based on the existence of defects and DMRC’s failure to cure them.
    • Safety Concerns: Prior to termination, DAMEPL had stopped rail operations, citing safety concerns. After termination, both parties jointly requested the Commissioner of Metro Rail Safety (CMRS) to reopen operations, which was sanctioned with certain conditions.
    • Supreme Court’s Decision: DMRC challenged the arbitral award in the Supreme Court, which upheld the award, emphasizing the limited scope to challenge arbitral awards under Indian law.
    • Curative Petition: A curative petition was filed, which is a rare legal remedy used to prevent miscarriage of justice. In an unprecedented move, the Supreme Court set aside the arbitral award in this case through the curative petition.

    The interference by the Court in this case was based on two primary grounds:

    • Interpretation of Termination Clause: The Court found fault with the Arbitral Tribunal’s interpretation of the termination clause. It held that the Tribunal’s requirement for DMRC to completely cure the breach was unreasonable. Instead, the Court asserted that it was sufficient for DMRC to take effective steps to address the breach, and complete cure was not necessary.
    • Importance of CMRS Sanction: The Court also criticized the Arbitral Tribunal for disregarding the significance of the CMRS sanction, which was considered vital evidence. The Tribunal’s failure to consider this evidence was deemed problematic by the Court.

    This intervention is notable for two reasons:

    • Firstly, it marks a departure from the Court’s previous stance of minimal interference in arbitral awards. Historically, the Court had been reluctant to overturn arbitral awards unless there were clear grounds for doing so. This case demonstrates a shift in that approach.
    • Secondly, the Court acknowledged that its own previous verdict, which aligned with its traditional stance, was incorrect. This admission highlights the Court’s willingness to reassess its own decisions and rectify errors when necessary.

    Challenges related to Curative jurisdiction:

    • Consistency and Reliability: The Court is seen as the final interpreter of the law and its decisions are expected to provide stability and guidance, not oscillate based on changing trends or immediate perceptions.
    • Institutional Integrity: There is concern that frequent revisiting of decisions through curative jurisdiction may undermine the integrity and authority of the Supreme Court as an institution. The Court’s role in declaring the law for the nation and posterity requires a higher standard of scrutiny and deliberation beyond correcting individual errors.
    • Raises questions on judicial interference: The exercise of curative jurisdiction raises questions about the extent of permissible judicial interference, particularly in arbitration cases where there is a general policy of minimal judicial intervention. Courts have traditionally adopted a hands-off approach to arbitration awards to respect the autonomy of arbitral tribunals.

    Conclusion: Establish clear guidelines and criteria for the exercise of curative jurisdiction to ensure consistency and predictability in its application. This could include defining the threshold for invoking curative jurisdiction, specifying the types of errors or violations that warrant its use, and outlining the procedural requirements for filing curative petitions.

  • SC declines plea against Collegium system to protect public’s best interest

    Why in the news? 

    The petition, filed by advocate Mathews Nedumpara, seeks a revival of the NJAC. SC Registrar says the issue is already settled, and a repeat litigation is a “needless waste of judicial time and energy”

    What is the Registrar of supreme court?

    • The registrar is a chief executive officer of a judicial forum. They are in charge of the entire registry of the department.

    What is NJAC (National Judicial Appointments Commission)? 

    • In August 2014, Parliament passed the Constitution (99th Amendment) Act, 2014 along with the National Judicial Appointments Commission (NJAC) Act, 2014, providing for the creation of an independent commission to appoint judges to the Supreme Court and high courts.
    • In 2015, Supreme Court struck down the National Judicial Appointments Commission (NJAC) and the 99th Amendment

    Actually, Collegium system is used for the appointment of SC Judges 

    First Judges Case (1981): 

    • Also known as S.P. Gupta case (December 30, 1981), the Supreme Court held that consultation does not mean concurrence and it only implies exchange of views
    • It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
    • The ruling gave the Executive primacy over the Judiciary in judicial appointments.

    Second Judges Case (1993):

    • SC reversed its earlier ruling and changed the meaning of the word consultation to concurrence.
    • Hence, it ruled that the advice tendered by the Chief Justice of India is binding on the President in the matters of appointment of the judges of the Supreme Court.
    • But, the Chief Justice would tender his advice on the matter after consulting two of his senior most colleagues (this was considered as Collegium)
    • The collegium can veto the government if the names are sent back by the latter for reconsideration.
    • The basic tenet behind the collegium system is that the judiciary should have primacy over the government in matters of appointments and transfers in order to remain independent.
    • The opinions of each member of the Collegium and other judges consulted should be made in writing and form part of the file on the candidate sent to the government.
    • Thus, the executive element in the appointment process was reduced to a minimum.
    • If the CJI had consulted non-judges, he should make a memorandum containing the substance of consultation, which would also be part of the file. After the receipt of the Collegium recommendation, the Law Minister would forward it to the Prime Minister, who would advise the President in the matter of appointment.

    Third Judges Case (1998):

    • SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues while HC collegium is led by its Chief Justice and four other senior most judges of that court.
    • Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.

    Conclusion: 

    The primary argument against the NJAC was that it could potentially undermine judicial independence by giving the executive a significant role in judicial appointments. Any alternative system, including a revised version of the NJAC, would need to ensure that judicial independence is safeguarded.

    Mains PYQ 

    Q Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India.

  • SC allows termination of pregnancy of minor rape survivor

    Why in the news? 

    The Supreme Court on Monday used its extraordinary powers under Article 142 of the Constitution to do “complete justice” to permit the medical termination of pregnancy of a 14- year-old rape.Her pregnancy is nearing 30 weeks. The minor became aware of her condition only at a very late stage.

    Article 142

    • Article 142 of the Indian Constitution grants extraordinary powers to the Supreme Court of India to deliver complete justice. It empowers the Supreme Court to pass any order or issue any writ necessary for doing “complete justice” in any cause or matter pending before it, even if the case does not fall directly within its jurisdiction. 

    Distinctive features of Article 142:

    • Extraordinary Powers: Article 142 grants the Supreme Court of India extraordinary powers to deliver complete justice. These powers are exceptional and not restricted by the ordinary limitations of jurisdiction or procedure.
    • Wide Discretion: The provision grants the Supreme Court wide discretion in passing orders or issuing writs to achieve complete justice.  
    • Non-obstante Clause: Article 142 begins with a non-obstante clause, which means that the powers conferred by this article prevail over any other provision of the Constitution or law. This underscores the supremacy of the Supreme Court’s authority in exercising these powers.
    • Judicial Activism: Article 142 is often invoked to enable the judiciary to intervene in matters where existing laws or legal provisions are inadequate or where there are gaps in the law. This enables the court to play an active role in shaping legal principles and addressing societal concerns.

    Medical Termination of Pregnancy (MTP) Act 2020

    • Gestation Limits: The Act allows for the termination of pregnancy up to 20 weeks with the opinion of one registered medical practitioner.
    • For termination between 20 to 24 weeks, the opinion of two registered medical practitioners is required.
    • The upper gestation limit has been increased from 20 to 24 weeks for special categories of women, including survivors of rape, victims of incest, differently-abled women, and minors.
    • Medical Board: In cases of substantial foetal abnormalities diagnosed by a Medical Board, the upper gestation limit does not apply.
    • The Medical Board consists of a gynaecologist, a paediatrician, a radiologist or sonologist, and other notified members.
    • Privacy Protection: The Act ensures the protection of privacy for women who have terminated their pregnancy. The name and other details of the woman are not to be revealed except to authorized individuals.

    Conclusion: 

    Need to take Measures to prevent rape in society by providing education on consent, promoting gender equality, ensuring swift and awareness about severe punishment for perpetrators, enhancing support for survivors, and fostering a culture of respect.

    Mains PYQ

    Q ‘Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions.

  • Doctrine of Harmonious Construction

    Why in the news?

    The Supreme Court refused to condone a delay of 5659 days in an appeal filing, setting forth eight guiding principles by interpreting Sections 3 and 5 of the Limitation Act, 1963, in ‘Harmonious Construction’.

    What is the Doctrine of Harmonious Construction?

    • The doctrine of harmonious construction means figuring out how to understand different parts of a law that seem to disagree with each other.
    • This doctrine helps maintain consistency and coherence in legal interpretation, ensuring that legislative intent is upheld while resolving apparent conflicts within statutes.
    • Origin: The Origin of the Doctrine of Harmonious Construction dates back to the landmark Judgement of Sri Shankari Prasad Singh Deo v. Union of India (1951), when there existed conflict between Fundamental Rights and DPDP.
    • In the present context, the SC harmoniously construed Sections 3 and 5 of the Limitation Act, ensuring that the strict interpretation of limitation periods under Section 3 was balanced with the liberal approach to condonation of delay under Section 5.

    What is Limitation Act, 1963?

    • The Limitation Act, 1963 is a statute enacted by the Parliament that prescribes the time limits within which legal proceedings can be initiated for various civil and criminal matters.
    • The Act sets out the specific time periods, known as limitation periods, within which a person must file a lawsuit or take legal action to enforce their rights or claim remedies for a particular cause of action.
    • Once the limitation period expires, the right to initiate legal proceedings becomes barred by law, and the aggrieved party loses the right to seek legal redress.

    Here are its key features:

    • Applicability: The Limitation Act, 1963 applies to civil suits, appeals, and applications filed in courts across India, with exceptions for cases where specific statutes provide for different limitation periods.
    • Limitation Periods: The Act sets a limitation period of 3 years for filing suits related to recovery of debts, breach of contract, or injury to a person.
    • Commencement of Limitation: The limitation period typically begins from the date when the cause of action arises, which is when the aggrieved party becomes entitled to sue.
    • Extension and Suspension: The Act allows for certain circumstances where the limitation period may be extended or suspended. For instance, if the plaintiff is under a disability or if fraud is discovered, the limitation period may be extended.

    Principles for Condonation of Delay

    Justices Bela M Trivedi and Pankaj Mithal presided over the bench that delineated these principles.

    1. Public Policy Basis: Limitation law aims to conclude litigation by forfeiting the remedy rather than the right itself.
    2. Temporal Limitation: Rights or remedies unexercised for a prolonged duration should cease to exist.
    3. Strict vs. Liberal Construction: Section 3 (limitation period) requires strict interpretation, while Section 5 (condonation of delay) demands a liberal approach.
    4. Substantial Justice: While promoting substantial justice, the core of limitation law (Section 3) must not be undermined.
    5. Discretionary Power: Courts may condone delay if sufficient cause is explained but may refrain due to factors like inordinate delay and negligence.
    6. Individual Justification: Relief granted to some does not mandate the same for others if delay justification is unsatisfactory.
    7. Merit Irrelevance: Merits of the case need not influence delay condonation decisions.
    8. Condonation Parameters: Applications for delay condonation must adhere to statutory provisions; overlooking conditions amounts to disregarding the law.

    Why were these guidelines laid out?

    • These principles emerged from a case where legal heirs sought to challenge a High Court decision dismissing their plea to condone delay in filing an appeal against a Trial Court’s reference dismissal.
    • The litigant’s heirs argued insufficient knowledge about the dismissal due to her stay in the matrimonial house, leading to a delayed filing.
    • However, the Supreme Court rejected this argument, citing negligence in pursuing the reference and appeal, lack of procedural diligence, and acceptance of the reference court’s decision by most claimants.

    PYQ:

     

    [2021] With reference to Indian judiciary, consider the following statements:​

    1. Any retired judge of the Supreme Court of India can be called back to sit and act as a Supreme Court judge by the Chief Justice of India with prior permission of the President of India.​

    2. A High Court in India has the power to review its own judgement as the Supreme Court does.​

    Which of the statements given above is/are correct?

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2