Subject: Judiciary

Mentor’s Comment: UPSC mains have always focused on the women in the higher judiciary (2021), and appointment of judges of higher judiciary (2017).

Women in law have made significant progress in India over the past 100 years. Cornelia Sorabji became the first woman lawyer to practice in 1924. Since then, the number of women lawyers has increased, with many becoming Senior Advocates and judges in lower courts. However, their representation in the higher judiciary remains very low.

Today’s editorial highlights the reasons for the low representation of women in the Indian judiciary. This content is useful for GS Papers 1 and 2 in the UPSC Mains exam.

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Why in the News?

The gender gap in India’s judiciary is evident in the low representation of women, especially in higher courts.

What are the main reasons for the underrepresentation of women in the higher judiciary in India?

• Systemic Gender Bias and Stereotypes: Women are often viewed as less capable of handling complex legal matters or leadership roles. Example: Justice Indira Banerjee, a former Supreme Court judge, highlighted how women must work harder to prove their competence compared to male counterparts.
• Opaque Collegium System: The collegium lacks transparency in the selection process and does not prioritize gender diversity. Example: Since 2021, 28 judges have been appointed to the Supreme Court, but none of them have been women.
• Limited Senior Women Advocates: Fewer women reach the level of Senior Advocate, which reduces the pool of candidates for higher judicial positions. Example: Only one woman, Justice Indu Malhotra, has been elevated directly from the Bar to the Supreme Court in its history.
• Delayed Appointments and Age Disparity: Women are appointed to the Bench later than men, limiting their tenure and chances of becoming Chief Justices. Example: The average appointment age for women is 53 years, while for men, it is 51.8 years.
• Government’s Selective Confirmation: Women’s names recommended by the collegium are more likely to be delayed or rejected by the government. Example: Since 2020, nine women were recommended for High Court appointments, but five of these names were rejected.

How can the collegium system be reformed to ensure greater transparency and gender diversity in judicial appointments? 

• Establish Clear and Transparent Selection Criteria: Implement publicly available guidelines specifying the qualifications, experience, and evaluation methods for judicial appointments. Example: The United Kingdom’s Judicial Appointments Commission uses clear, published criteria to promote transparency and diversity in judicial selection.
• Mandate Gender Representation in Recommendations: Introduce a formal quota or commitment to ensuring that at least one-third of the recommended candidates are women. Example: Countries like Canada follow a diversity mandate to ensure that judicial appointments reflect gender and ethnic representation.
• Open Application Process for Judicial Aspirants: Allow eligible lawyers to apply for judgeship through a transparent process rather than relying solely on collegium nominations. Example: South Africa invites applications publicly and conducts open interviews, ensuring broader participation, including women candidates.

Way forward: 

• Institutionalize Gender Diversity in Judicial Appointments: Implement a binding policy requiring the collegium to prioritize gender diversity, ensuring a minimum percentage of women in judicial recommendations. This can be reinforced by periodic audits and public reports on gender representation.
• Mentorship and Capacity Building for Women Lawyers: Establish structured mentorship programs to support women lawyers in advancing to senior positions and encourage their participation in judicial roles. This should include targeted training for leadership and judicial skills to expand the pool of qualified women candidates.

Mentor’s Comment: UPSC mains have always focused on “freedom of speech and expression”  (2014), and A man is but the product of his thoughts. What he thinks he becomes.” — M.K. Gandhi (2019).

A Bench of Justices Surya Kant and N. Kotiswar Singh imposed strict conditions, barring Allahbadia and his team from posting on social media until further notice and ordering him to surrender his passport to the police. These conditions go against previous Supreme Court rulings that warn against imposing excessive restrictions that limit personal freedom while granting temporary relief.

Today’s editorial discusses temporary protection from arrest and the factors the Supreme Court considers when granting interim relief to an accused. This information is valuable for GS Paper 2 and 4 in the UPSC Mains examination.

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Why in the News?

On February 18, the Supreme Court granted temporary protection from arrest to podcaster and influencer Ranveer Allahbadia.

What stringent conditions did the Supreme Court impose on podcaster and influencer Ranveer Allahbadia? 

• Prohibition on Social Media Activity: The Court barred Allahbadia and his associates from posting any content on YouTube or other audio/video platforms until further orders. Example: Similar restrictions were rejected in Mohammed Zubair’s case (2021), where the Court held that preventing social media activity violates free speech rights.
• Surrender of Passport: He was directed to surrender his passport to the police to prevent him from leaving the country. Example: In Satender Kumar Antil v. CBI (2022), the Court ruled that conditions like passport surrender must not be disproportionate or impossible to comply with.
• Gag Order on Professional Work: The Court imposed a gag order restricting him from airing new content until further notice. Example: In Rehana Fathima’s case (2021), the Supreme Court overturned a similar order that restricted the activist from expressing her views online.
• Monitoring of Public Statements: Allahbadia’s public statements and activities on digital platforms are subject to strict oversight to prevent further controversies. Example: In Frank Vitus v. NCB (2024), the Court struck down a bail condition requiring the accused to share their Google Maps location PIN, calling it an invasion of privacy.
• Single Investigation for Multiple FIRs: The Court may consolidate the multiple FIRs against him under a single investigation to prevent harassment. Example: In Parteek Bansal v. State of Rajasthan (2022), the Supreme Court denounced the filing of multiple FIRs for the same offense as a form of state harassment.

What factors does the top court consider when granting interim relief to an accused? 

• Tampering with Evidence (Interfering with Investigation): The Court considers whether interim relief might allow the accused to destroy, fabricate, or conceal evidence. Example: In Satender Kumar Antil v. CBI (2022), the Court cautioned against imposing impossible bail conditions while ensuring the investigation remains uncompromised.
• Nature and Gravity of the Offense: The seriousness of the alleged crime and its potential social impact are weighed when deciding on interim relief. Example: In Arnab Goswami v. State of Maharashtra (2020), interim bail was granted, with the Court emphasizing the need to prevent misuse of the law for political harassment.
• Protection of Fundamental Rights: The Court considers the accused’s fundamental rights, particularly personal liberty under Article 21 of the Constitution. Example: In Frank Vitus v. NCB (2024), the Court struck down a bail condition requiring the accused to share their Google Maps location PIN, calling it a violation of privacy rights.
• Flight Risk (Likelihood of Absconding): The Court evaluates whether the accused is likely to flee the country or jurisdiction to evade legal proceedings. Example: In Chidambaram v. Directorate of Enforcement (2019), anticipatory bail was denied due to concerns about flight risk and the accused’s ability to influence the investigation.
• Intimidation of Witnesses (Influencing or Threatening Witnesses): The possibility of the accused threatening, influencing, or coercing witnesses is assessed to ensure a fair trial. Example: In State of Gujarat v. Amit Shah (2010), bail was granted after the Court found no direct evidence suggesting that the accused would intimidate witnesses.

What has the Court previously stated about gag orders?

• Gag Orders Violate Freedom of Speech: The Court has consistently held that gag orders restricting speech violate Article 19(1)(a) of the Constitution, which guarantees freedom of speech and expression. Example: In Mohammed Zubair v. State of Uttar Pradesh (2021), the Court refused to restrict Zubair from tweeting while on bail, stating it would create a chilling effect on free speech.
• Prior Restraint is Constitutionally Disfavored: The Court has cautioned that prior restraint—preventing speech before it occurs—is unconstitutional except in exceptional circumstances like public order or national security. Example: In R. Rajagopal v. State of Tamil Nadu (1994), the Court ruled that prior censorship is permissible only when there is compelling public interest.
• Gag Orders Must Be Proportional: Any restriction on speech must be narrowly tailored and proportionate to the harm being prevented. Broad, vague restrictions are unconstitutional. Example: In Rehana Fathima v. State of Kerala (2021), the Court struck down a bail condition prohibiting Fathima from expressing her views on social media, calling it disproportionate.
• Right to Practice a Profession: Gag orders must not prevent individuals from pursuing their profession, especially when their work depends on public communication. Example: In Vinod Dua v. Union of India (2021), the Court quashed FIRs against journalist Vinod Dua, stating that his journalistic work was protected under Article 19(1)(a).
• Interference with Judicial Process is an Exception: The Court has upheld gag orders only when speech could obstruct the judicial process or prejudice a fair trial. Example: In Sahara India Real Estate Corp. v. SEBI (2012), the Court allowed temporary restrictions to prevent media trials from affecting the outcome of legal proceedings.

Way forward: 

• Balance Fundamental Rights with Fair Trial: Ensure that any restrictions on speech, including gag orders, are narrow, proportionate, and imposed only when necessary to protect the integrity of judicial proceedings while safeguarding freedom of expression under Article 19(1)(a).
• Establish Clear Guidelines for Interim Relief: Formulate uniform guidelines to regulate conditions like passport surrender, social media bans, and public statement monitoring, ensuring they are consistent with constitutional protections and do not impose disproportionate burdens on the accused.

Mentor’s Comment:  UPSC Prelims have focused on ‘appointment of judges of higher judiciary in India’ (in 2017), and  ‘Arbitration and Conciliation’ (2015).

Every Chief Justice of India and senior member of the higher judiciary faces the persistent challenge of case backlogs. Currently, the Supreme Court has around 82,000 pending cases, High Courts have over 62 lakh, and lower courts nearly five crores. About 50 lakh cases have been pending for over 10 years. India can address its legal backlog by adopting mediation as an effective solution for faster and amicable dispute resolution. 

Today’s editorial discusses the pending cases in the Supreme Court and explores alternative solutions. This is useful for GS Paper 2 (Polity) in the UPSC Mains.

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Why in the News?

Recently, the Supreme Court has around 82,000 pending cases, High Courts have over 62 lakh, and lower courts have nearly five crores.

How can court case backlogs be transformed into valuable resources?

• Promoting Mediation and Alternative Dispute Resolution (ADR): Identify and refer suitable cases (e.g., family disputes, commercial disagreements) for mediation to reduce court workload. Example: The Delhi High Court Mediation and Conciliation Centre has successfully resolved thousands of cases through mediation, reducing pendency and fostering amicable settlements.
• Leveraging Data Analytics for Case Management: Use AI and data analytics to categorize cases by complexity, urgency, and likelihood of settlement for faster resolution. Example: The Supreme Court’s SUPACE (Supreme Court Portal for Assistance in Court Efficiency) uses AI to assist judges in analyzing and prioritizing cases.
• Expanding Fast-Track and Special Courts: Establish dedicated courts for high-pendency areas like cheque-bouncing cases (Section 138 of the Negotiable Instruments Act) and sexual offenses. Example: Fast-track courts for rape cases under the POCSO Act have expedited justice delivery in many states, reducing backlog in sensitive matters.
• Implementing E-Courts and Digital Filing: Shift to e-filing and virtual hearings to streamline processes and reduce procedural delays. Example: The E-Courts Project has enabled online case filing and digital record management, reducing paperwork and improving case tracking.
• Imposing Costs for Frivolous Litigation: Introduce punitive costs for unnecessary appeals and frivolous cases to discourage misuse of the judicial system. Example: The Supreme Court has imposed heavy fines in cases of “Public Interest Litigations” (PILs) found to be motivated by personal agendas.

Should India consider adopting mediation as a dispute resolution method?

• Faster and Cost-Effective Resolution: Mediation is quicker and less expensive than prolonged litigation, saving time and financial resources for both parties. Example: In commercial disputes, companies like Tata and Reliance have used mediation to resolve conflicts, avoiding lengthy and costly legal battles.
• Preserving Relationships: Mediation focuses on mutual agreement, fostering cooperation and maintaining relationships, which is crucial in family and business matters. Example: Matrimonial disputes in family courts are often referred to mediation, leading to amicable settlements and reducing emotional distress.
• Encouraging Confidentiality and Flexibility: Mediation proceedings are confidential, protecting sensitive information and offering flexible solutions tailored to the parties’ needs. Example: Intellectual Property (IP) disputes in the Bombay High Court have been successfully mediated, protecting trade secrets while resolving conflicts.
• Global Best Practice Alignment: Many countries, including the United States and Singapore, prioritize mediation to resolve civil and commercial disputes efficiently. Example: India’s Commercial Courts Act, 2015, mandates pre-institution mediation for commercial cases, aligning with international standards and reducing case influx.
• Reducing Judicial Backlog: Mediation can significantly reduce the burden on courts by resolving disputes outside the formal judicial system. Example: The Delhi Dispute Resolution Society has successfully mediated thousands of civil and matrimonial disputes, easing pressure on the Delhi High Court.

Way forward: 

• Strengthen Mediation Infrastructure: Expand court-annexed mediation centres, train mediators, and promote online dispute resolution (ODR) to enhance accessibility and efficiency.
• Policy and Public Awareness: Implement awareness campaigns to encourage mediation adoption and introduce incentives for parties choosing alternative dispute resolution methods.