💥Join UPSC 2027,2028 Mentorship (July Batch) + XFactor Notes & Microthemes PDF
Talk to Mentor

Civilsdaily

Login

Subject: Judiciary

  • Debating the Abolition of Judicial Vacations

    Central Idea

    • The longstanding tradition of judicial vacations in India has come under scrutiny as a parliamentary committee.
    • Recent remarks by Chief Justice DY Chandrachud reignited discussions on the allocation of vacation days to Indian judges, shedding light on the intricate dynamics of judicial work patterns and the rationale behind vacation allotments.

    Vacation in Judiciary

    • Judicial Workdays: The Supreme Court has 193 working days annually, High Courts function around 210 days, and trial courts operate for 245 days. High Courts possess the authority to structure their calendars as per service rules.
    • Long-standing Practice: The practice of vacations, particularly the extensive 7-week (formerly 10-week) summer recess, has its origins in colonial times.

    Understanding Vacation Benches

    • Composition and Role: The CJI appoints a Vacation Bench, a specialized court that operates during the Supreme Court’s summer and winter breaks. Although the court is not fully closed during vacations, this bench handles cases deemed “urgent matters.”
    • Urgent Cases: While there is no explicit definition for “urgent matters,” the Vacation Bench typically entertains writs associated with habeas corpus, certiorari, prohibition, and quo warranto, all related to enforcing fundamental rights.
    • Rule 6 of Order II of the Supreme Court Rules, 2013: Under this rule, the CJI nominates Division Benches for urgent miscellaneous and regular hearing matters during the summer vacation period. The rule allows for the appointment of judges to hear urgent cases individually or in a Division Court.

    Historical Significance and Notable Cases:

    • Impactful Decisions: Vacation Benches have delivered significant judgments in the past. A well-known instance is when a Vacation Bench Judge refused PM Indira Gandhi’s plea to stay an Allahabad High Court decision in 1975, which led to the Emergency declaration.
    • Triple Talaq Case: In 2017, a Vacation Bench of the Supreme Court heard the triple talaq case during vacation days.

    Debates and Arguments Surrounding Vacation Benches

    [A] Arguments in Favor:

    • Judicial Rejuvenation: Advocates emphasize the need for vacation periods to provide judges with mental and physical rejuvenation.
    • Extended Work Hours: Considering the demanding nature of judicial work, proponents assert that the long working hours necessitate periodic breaks.
    • Writing Judgments: Judges use vacation time to draft judgments, contributing to the timely disposal of cases.

    [B] Arguments Against:

    • Pendency and Delays: Critics argue that the extended and frequent vacations exacerbate the backlog of cases and contribute to the slow pace of justice delivery.
    • Inconvenience to Litigants: For litigants, vacations translate to additional delays in case hearings.

    Calls for Reform

    • Malimath Committee (2000): The committee proposed reducing vacation periods by 21 days, advocating for the Supreme Court to operate for 206 days and High Courts for 231 days annually.
    • Law Commission of India (2009): The commission recommended curtailing vacations by 10-15 days and extending court working hours to address the substantial backlog of cases.
    • Supreme Court’s 2014 Rule Change: The Supreme Court truncated the summer vacation period from 10 weeks to seven weeks.
    • RM Lodha Commission (2014): It suggested that individual judges should take leave at different times throughout the year instead of having all judges on vacation at once.

    Proposed Approach and Suggested Changes

    • Continuous Operation: The 133rd committee supports the notion that individual judges should take their leave at different intervals, thereby ensuring that the courts remain open throughout the year.
    • Redefined Judicial Vacations: The parliamentary report calls for a reevaluation of the traditional concept of vacations, advocating for a more modern and efficient approach to court operation.
    • Comparison with Other Countries: The report suggests that the vacation practices of the Supreme Court and High Courts should be reviewed in comparison to other countries’ higher courts and constitutional institutions.

    Conclusion

    • The debate surrounding the abolition of judicial vacations in India emphasizes the necessity for a dynamic and effective approach to court operations.
    • While the tradition has historical significance, the current judicial landscape calls for a re-evaluation of practices to ensure efficient functioning, address the backlog of cases, and minimize inconveniences to litigants.

  • Supreme Court says NO to Sealed Cover suggestions

    seal

    Central idea: The Supreme Court has said it did not want to accept in a “sealed cover” the Centre’s suggestions on who could be the members of a committee the court had proposed to assess the market regulatory framework and recommend measures, if any, to strengthen it in the wake of the Adani-Hindenburg affair.

    What is the news?

    • The article is about a public interest petition filed in the Supreme Court that calls for the establishment of an expert panel to strengthen regulatory mechanisms related to the Adani Group.
    • The petitioners argue that the Adani Group has been able to bypass regulatory hurdles through its influence on government officials and agencies.

    What is Sealed Cover Jurisprudence?

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

    Need for sealed cover jurisprudence

    There are several reasons why sealed cover jurisprudence is used-

    • National security: For example, in cases involving sensitive information related to defense or intelligence agencies, the disclosure of such information in open court proceedings could compromise national security.
    • Individual privacy: It is also used to protect the privacy in cases involving sensitive personal information. In such cases, the court may allow the submission of such information in a sealed cover to protect the privacy of the individual concerned.
    • Protect commercial or trade secrets: In cases involving disputes between companies, the disclosure of confidential information related to their business operations could harm their commercial interests.

    Nature of the power: Upholding Secrecy

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

    Grounds of such secrecy

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

    1. Impedes an ongoing investigation of cases related to national security
    2. Details that are part of the police’s case diary or
    3. Breaches the privacy of an individual

    Prominent cases of sealed jurisprudence

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

    (1) Rafale Deal

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

    (2) Bhima Koregaon Case

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

    Issues with such jurisprudence

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

    Way forward

    • Conduct an independent and thorough investigation: Inquire into the allegations raised in the petition, and take appropriate legal action against the Adani Group if they are found to have violated environmental regulations.
    • Establish an expert panel as suggested by the petitioners: To review the regulatory framework and suggest measures to strengthen it. The panel should include experts from various fields, including environmental science, law, and economics.
    • Ensure transparency and accountability in the regulatory process: Foster a culture of environmental awareness and responsibility among businesses by promoting sustainable and eco-friendly practices. This could involve providing incentives and support to companies that adopt such practices.
    • Review the use of sealed cover jurisprudence: Ensure that it is used judiciously and only in cases where it is necessary to protect sensitive or confidential information.

     

    Crack Prelims 2023! Talk to our Rankers

    (Click) FREE 1-to-1 on-call Mentorship by IAS-IPS officers | Discuss doubts, strategy, sources, and more

  • 73rd establishment day of Supreme Court

    supreme court

    The Supreme Court of India is hosting its celebration of the 73rd anniversary of its establishment today.

    Why in news?

    • This year’s event is being aired on social media platforms and will witness Singapore’s Chief Justice Sundaresh Menon, who is of Indian origin, as the chief guest.

    When was the Supreme Court founded?

    • On January 28, 1950, two days after India became a sovereign democratic republic, the Supreme Court of India came into being.
    • The first CJI of India was H. J. Kania.
    • The inauguration took place in the Chamber of Princes in the Parliament building which was the home to the Federal Court of India for 12 years preceding the Supreme Court’s establishment.
    • The Parliament House was to be the home of the Supreme Court for years that were to follow until the court acquired its own present building with lofty domes and its signature spacious colonnaded verandas in 1958.

    History of established

    • In 1861, the Indian High Courts Act 1861 was enacted to create high courts for various provinces and abolished Supreme Courts at Calcutta, Madras and Bombay and also the sadar adalats in presidency towns in their respective regions.
    • These new high courts had the distinction of being the highest courts for all cases till the creation of the Federal Court of India under the Government of India Act 1935.
    • The Federal Court had jurisdiction to solve disputes between provinces and federal states and hear appeals against judgment of the high courts.

    Premise of the Supreme Court

    • In 1958, when the court shifted its premises, the building was shaped to project the image of scales of justice, in the central wing.
    • In 1979, two new wings – the East wing and the West wing – were added to the complex. In all, there are 19 Courtrooms in the various wings of the building.
    • The Chief Justice’s Court is the largest of the Courts located at the Centre of the Central Wing.

     

    Crack Prelims 2023! Talk to our Rankers

    (Click) FREE 1-to-1 on-call Mentorship by IAS-IPS officers | Discuss doubts, strategy, sources, and more

  • Back in news: Collegium System

    collegium

    The Centre has told the Supreme Court that it would soon clear five names that were recommended by the collegium for appointment of judges in the apex court.

    What is Collegium System?

    • The Collegium of judges is the Indian Supreme Court’s invention.
    • It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
    • In effect, it is a system under which judges are appointed by an institution comprising judges.
    • After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.
    • Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.

    Evolution: The Judges Cases

    • First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
    • However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
    • Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
    • It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
    • 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.

    Does the Collegium recommend transfers too?

    • Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
    • Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
    • When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
    • In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
    • However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
    • All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.

    Need for Collegium System

    • Collegium system increases secrecy: Ruma Pal, a former Judge of the Supreme Court of India, stated that this system is one of the best kept secret in the country. It kept secret within the four walls of the body for proper and effective functioning of the institution that makes the system opaque.
    • Political non-interference: The collegium system makes Judiciary independent from the politics. It separates the judiciary from the influence of executive and legislative. With the Govt’s influence judiciary can work without any fear and any sort of favour. This ensures the regulation of the doctrine of separation of power.
    • Ensures merit: The executive organ is not specialist or does not have the knowledge regarding the requirements of the Judge as comparative to the CJI. Collegium system ensures that the deserving one is sitting in the position of the Judge in Supreme Court.

    Loopholes in the Collegium system

    • Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
    • Judges appointing Judge: The attempt made to replace it with a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
    • Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge.

    A critical assessment

    • No guidelines framework: This system does not provide any guidelines in selecting the candidates for the judge position of the Supreme Court because of which it leads to wide scope for the nepotism and favoritism.
    • No checks and balances: This system gives the immense power to Judiciary to appoint Judges, so the check on the excessive powers would not be ensured and misuse of powers can be done.
    • Judiciary is nowhere accountable: The collegium system is not accountable to any administrative body that may lead to wrong choice of the candidate while overlooking the right candidate.
    • Huge workload leaves no room: Already there are many cases pending in the Court, they are having limited time the power given to them for the appointment would lead to burden to Judiciary.
    Former Chief Justice of Australia, Sir Harry Gibbs, are worth-quoting:

    Judicial commissions, advisory Committees and procedures for consultation [with the Chief Justice] will be useless unless there exists, among the politicians of all parties, a realization that the interest of the community requires that neither political nor personal patronage nor a desire to placate any section of a society, should play any part in making judicial appointments.

    Some feasible measures that can be incorporated

    • Ensure non-vetoing representatives: To ensure the effectiveness of this mechanism the commission should be representative in nature comprising members of the executive, legislature, judiciary, legal profession and lay persons.
    • Info share in public domain: In addition, it should be ensured that the commission uses a system which is transparent and open to public scrutiny.

    Way ahead

    • In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
    • The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
    • Even the majority opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.

    Conclusion

    • All mechanisms for judicial appointment may have some advantages and disadvantages and therefore, no particular system can be treated as the best system.
    • Despite this, in order to maintain public confidence in the appointment system and to ensure judicial independence the commission system is perhaps a very effective mechanism for judicial appointment.

     

    Crack Prelims 2023! Talk to our Rankers

    (Click) FREE 1-to-1 on-call Mentorship by IAS-IPS officers | Discuss doubts, strategy, sources, and more

  • Is Judicial Majoritarianism justified?

    As the recent majority judgment of the Supreme Court on demonetization comes under criticism, the minority judgment by J. Nagarathna is being hailed for its challenge to the RBI’s institutional acquiescence (reluctant acceptance) to the Central government.

    What is Judicial Majoritarianism?

    • Numerical majorities are of particular importance to cases which involve a substantial interpretation of constitutional provisions.
    • The requirement for a majority consensus flows from Article 145(5) of the Constitution which states that no judgment in such cases can be delivered except with the concurrence of a majority.
    • It also provides for judges to freely deliver dissenting judgments or opinions.
    • In important cases, Constitutional Benches, consisting of five or more judges, are set up in consonance with Article 145(3) of the Constitution.
    • Such Benches usually consist of five, seven, nine, 11 or even 13 judges.

    Why in news?

    • Blind acceptance: This situation raises questions with respsect to our blind acceptance of numerical majority judgements.
    • Disregard for dissent: This flags issues in judicial decision-making and the constitutional disregard of analysis and appreciation of arguments and evidence in dissenting judgments.
    • Merits of dissent: Analysts now seek to challenge the weightage given to numerical majorities in judicial decisions by our Constitutional Courts as opposed to the merits in their reasoning.

    CASE STUDY: “Why Do Bare Majorities Rule on Courts?”

    • Jeremy Waldron has dealt with this concept at length in his work titled ‘Five to Four: Why Do Bare Majorities Rule on Courts?’.
    • He proffers that the arguments which are made in defense of judicial majoritarianism cannot explain or justify our adherence to majority decisions –

    1.      Efficiency through ease of decision-making;

    2.      Epistemic objectivity through majority adherence; and

    3.      Equality through fairness,

    • He questions why is it that the judges too have to resort to head counting in order to resolve disagreements amongst judges.

     

    Heart of the debate: Why do experts need to resort to ‘majority’?

    • Defiance of merit: A meritorious minority decision, irrespective of the impeccability of its reasoning receives little weightage in terms of its outcomes.
    • Complex situations: All judges on a particular Bench give their rulings on the same set of facts, laws, arguments and written submissions.
    • Nature of bias: Judicial hunches may be an outcome of subjective experiences, outlooks, perceptions, prejudices and biases.

    Narrow margin: Some meritorious dissents in India

    Our Constitutional history is replete with such meritorious dissents-

    • The dissenting opinion of Justice H.R. Khanna in A.D.M. Jabalpur v. Shivkant Shukla (1976) upholding the right to life and personal liberty even during situations of constitutional exceptionalism is a prime example.
    • Another example is the dissenting opinion of Justice Subba Rao in the Kharak Singh v. State of U.P. (1962) case upholding the right to privacy which received the judicial stamp of approval in the K.S. Puttaswamy v. UOI (2017) case.
    Do you know?

    The Kesavananda Bharati verdict (1973) was divided 7–6 majority. And 4 other judges to bench refused to sign the Judgment! It is almost like the Basic Structure Doctrine was rejected. It should have had an overwhelming majority.

     

    Way forward

    • Weightage-based assent in judgments: Ronald Dworkin proffers a system that may either give more weightage to the vote of senior judges given that they have more experience or to the junior judges as they may represent popular opinion better.
    • Doing away with headcounts: Such alternatives, however, can only be explored once we identify and question the premises and rationales which underlie head-counting in judicial decision-making.
    • Imbibe critical discourse: The absence of a critical discourse on judicial majoritarianism represents one of the most fundamental gaps in our existing knowledge regarding the functioning of our Supreme Court.
    • Cases to expert benches: As pending Constitutional Bench matters are listed for hearing and judgments are reserved, we must reflect upon the arguments of judicial majoritarianism on the basis of which these cases are to be decided.

    Conclusion

    • There is a need to reflect upon the concept of judicial majoritarianism.
    • The academic discourse on this aspect is still nascent and developing.

     

    Crack Prelims 2023! Talk to our Rankers

    (Click) FREE 1-to-1 on-call Mentorship by IAS-IPS officers | Discuss doubts, strategy, sources, and more

  • Who is a Puisne Judge, and what does the term mean?

    While recommending two names for appointment as judges of the Supreme Court, the Collegium headed by Chief Justice of India D Y Chandrachud said that the collegium had taken into “consideration the seniority of Chief Justices and senior puisne Judges…”

    Who are Puisne Judge?

    • According to the dictionary, the word puisne has French origins, which means “later born” or younger.
    • It is pronounced / “puny”, the English word that means small or undersized.
    • Puisne is almost always used in the context of judges, and essentially denotes seniority of rank.
    • The term puisne judge is used in common law countries to refer to judges who are ranked lower in seniority, i.e., any judge other than the Chief Justice of that court.

    Now again, what is common law?

    • Common law is the body of law that is created by judges through their written opinions, rather than through statutes or constitutions (statutory law).
    • Common law, which is used interchangeably with ‘case law’, is based on judicial precedent.
    • The United Kingdom (UK) and the Commonwealth countries, including India, are common law countries.

    Legal reference to Puisne Judges

    In the Third Judges Case ruling in 1998, one of the two cases that led to the evolution of the collegium system, the Supreme Court clarified that-

    • The CJI must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four seniormost puisne Judges of the Supreme Court.

    Is a “puisne judge” in India the same as in the UK?

    • In the UK, puisne judges are judges other than those holding distinct titles.
    • The Supreme Court of Judicature Act, 1877 defined a “puisne judge” as any judge of the High Court besides the Lord Chancellor, the Lord Chief Justice of England, and the Master of the Rolls.
    • In India, all judges have the same judicial powers.
    • As the seniormost judge of a court, the Chief Justice has an additional administrative role.
    • In India, there is a reference to a puisne judge only while considering the order of seniority for appointments, elevations to High Courts, etc., but it does not have a bearing on the exercise of a judge’s judicial power.

    What is the recent context?

    • The Supreme Court collegium recommended current Chief Justices of the Allahabad and Gujarat High Courts respectively, for appointment as judges of the Supreme Court.
    • While giving reasons for its recommendation, the collegium said that the decision was made taking “into consideration the seniority of Chief Justices and senior puisne Judges in their respective parent High Courts.
    • This was done because seniority is one of the several criteria that are considered while making appointments to the higher judiciary.

     

    Crack Prelims 2023! Talk to our Rankers

    (Click) FREE 1-to-1 on-call Mentorship by IAS-IPS officers | Discuss doubts, strategy, sources, and more

  • Under Constitution, law declared by the Supreme Court is binding on all

    law

    Vice President Jagdeep Dhankhar questioned the landmark 1973 Kesavananda Bharati case verdict that gave the basic structure doctrine, saying it set a bad precedent and if any authority questions Parliament’s power to amend the Constitution, it would be difficult to say ‘we are a democratic nation’.

    What did the SC say?

    • Vice-President’s public criticism of the National Judicial Appointments Commission (NJAC) judgment may be seen as comments by a high constitutional authority against “the law of the land” (Art. 141).
    • That is, as long as the NJAC judgment, which upholds the collegium system of judicial appointments, exists, the court is bound to comply with the verdict.
    • The Parliament is free to bring a new law on judicial appointments, possibly through a constitutional amendment, but that too would be subject to judicial review.

    What is Article 141?

    • Article 141 provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India.
    • The law declared has to be construed as a principle of law that emanates from a judgment, or an interpretation of law or judgment by the Supreme Court, upon which, the case is decided.
    • This article forms the basis of Doctrine of Precedent in India.

    What has the VP accused the judiciary of?

    • Dilution of Parliamentary Sovereignty: The Vice-President had remarked that judicial review, as was done in the case of the NJAC law, diluted parliamentary sovereignty. He had used terms like “one-upmanship”.
    • Curb on Legislature: The Vice-President had said he did not “subscribe” to the landmark Kesavananda Bharati judgment of 1973 which limited the Parliament’s power under Article 368 to amend the Constitution.
    • Disregard to the mandate of people: Dhankhar said no institution can wield power or authority to neutralise the mandate of people.

    Notes for Aspirants

    A classic observation in this regard was made by Chief Justice Patanjali Shastri in State of Madras versus V.G. Row (1952).  Justice Shastri’s words were reproduced by Chief Justice J.S. Khehar in his lead opinion for the Constitution Bench in the NJAC case in October 2015.

    (1) Actual nature of Judicial Review

    • Justice Shastri said judicial review was undertaken by the courts “not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid down upon them by the Constitution”.
    • The Kesavananda Bharati verdict (1973) had made it clear that judicial review is not a means to usurp parliamentary sovereignty.
    • It is a “system of checks and balances” to ensure constitutional functionaries do not exceed their limits.

    (2) Limitations to Article 368

    • Article 368 postulates only a ‘procedure’ for amendment of the Constitution.
    • The same could not be treated as a ‘power’ vested in the Parliament to amend the Constitution so as to alter the ‘core’ of the Constitution, which has also been described as the ‘basic structure’ of the Constitution.

    Back2Basics: Doctrine of Precedent

    • Any judicial system’s structure places a high priority on the notion of precedent.
    • It suggests that a judgement made by a court at the top of the judicial food chain binds courts below it.
    • According to Article 141 of the Indian Constitution, all lower courts must abide by the Supreme Court’s interpretation of the law.
    • Similar to this, a State’s High Court’s decision is binding on all Lower Courts within that state, and a division bench of a State High Court’s ruling is binding on the Justices sitting singly in that High court.

     

    Crack Prelims 2023! Talk to our Rankers

    (Click) FREE 1-to-1 on-call Mentorship by IAS-IPS officers | Discuss doubts, strategy, sources, and more

  • Supreme Court’s ‘Basic Structure’ verdict set bad precedent: VP

    court

    The Vice-President while addressing the 83rd Conference of Presiding Officers said that the Kesavananda Bharati case judgment of 1973 set a bad precedent by seeking to establish judicial supremacy.

    Kesavananda Bharati Case (1973)

    • The Kesavananda Bharati judgement, was a landmark decision of the Supreme Court that outlined the basic structure doctrine of the Indian Constitution.
    • The case is also known as the Fundamental Rights Case.
    • The SC in a 7-6 decision asserted its right to strike down amendments to the constitution that were in violation of the fundamental architecture of the constitution.
    • The Court asserted through the Basic Structure doctrine that the constitution possesses a basic structure of constitutional principles and values.
    • Key outcomes were:
    1. Judicial Review: The Court partially cemented the prior precedent Golaknath v. State of Punjab, which held that constitutional amendments through Article 368 were subject to fundamental rights review, but only if they could affect the ‘basic structure of the Constitution’.
    2. Exceptions to Judicial Review: At the same time, the Court also upheld the constitutionality of the first provision of Article 31-C, which implied that amendments seeking to implement the Directive Principles, which do not affect the ‘Basic Structure,’ shall not be subjected to judicial review.

    Why are we discussing it now?

    Ans. Centre vs. Judiciary Tussle

    • The doctrine forms the basis of power of the Indian judiciary to review and override amendments to the Constitution of India enacted by the Parliament.
    • Since few days, Judiciary and Executive are at loggerheads.
    • In political sphere, there is a greater resentment against the SC verdict striking down the NJAC Act.
    • Comments over appointment/transfer of judges in non-transparent manner has become a very common.

     

    National Judicial Appointment Commission (NJAC)

    • The NJAC was a body that was proposed to make appointments of Chief Justices, Supreme Court judges, and High Court judges in a more transparent manner as compared to the existing collegium system.
    • It sought to replace the Collegium System.
    • It was proposed via the National Judicial Appointments Commission Bill, 2014.
    • The bill was passed by both the houses; Lok Sabha and Rajya Sabha, and also received the President’s assent.
    • The commission was established by the 99th Constitutional Amendment Act, 2014.
    • The Act proposed that the members of NJAC would be composed of members from the legislative, judicial, and civil society.

     

    Reasons behind VP’s harsh comments

    Ans. Parliamentary Supremacy (Mandate of the People) overpowers Basic Structure

    • VP said that in a democratic society, “the basic” of any “basic structure” has to be the supremacy of the mandate of the people.
    • Thus the primacy and sovereignty of Parliament and legislature is inviolable.
    • He said all constitutional institutions — judiciary, executive and legislature— are required to remain confined to their respective domains and conform to the highest standards of propriety and decorum.
    • He said the power of Parliament to amend the Constitution and deal with legislation should not be subject to any other authority.

    Conclusion

    • After analyzing both NJAC and the collegium system, it can be inferred that neither of the methods is complete and both lack certain aspects.
    • Many former judges and legal experts are supporting the NJAC.
    • However, legal jurists are divided on NJAC, with some supporting it while others calling for amendments to the Act.
    • It is quite evident that neither the collegium system nor the NJAC is accurate; both have some shortcomings.

     

    Crack Prelims 2023! Talk to our Rankers

    (Click) FREE 1-to-1 on-call Mentorship by IAS-IPS officers | Discuss doubts, strategy, sources, and more

  • What is Vacation Bench of Supreme Court?

    Chief Justice of India D. Y. Chandrachud said no Vacation Benches will be available in the apex court during the winter break.

    Vacation Bench

    • A Vacation Bench of the Supreme Court is a special bench constituted by the Chief Justice of India.
    • The court takes two long vacations each year, the summer and winter breaks, but is technically not fully closed during these periods.
    • Litigants can still approach the Supreme Court and, if the court decides that the plea is an “urgent matter”, the Vacation Bench hears the case on its merits.
    • While there is no specific definition as to what an “urgent matter” is.
    • During vacations the court generally admits writs related to habeas corpus, certiorari, prohibition and quo warranto matters for enforcement of any fundamental right.

    Do you know?

    The Supreme Court has 193 working days a year for its judicial functioning, while the High Courts function for approximately 210 days, and trial courts for 245 days. High Courts have the power to structure their calendars according to the service rules.

    Legal Provisions for Vacation Bench

    • Under Rule 6 of Order II of The Supreme Court rules, 2013 the CJI has nominates the Division Benches for the hearing of urgent miscellaneous matters and regular hearing matters during the summer vacation for period.
    • The rule reads that CJI may appoint one or more Judges to hear during summer vacation or winter holidays all matters of an urgent nature which under these rules may be heard by a Judge sitting singly.
    • And, whenever necessary, he may likewise appoint a Division Court for the hearing of urgent cases during the vacation which require to be heard by a Bench of Judges.

    Which else can appoint vacation bench?

    • The High Courts and trial courts too have Vacation Benches to hear urgent matters under their jurisdiction.

    Has vacation benches made any historic judgments?

    • Vacation Benches of the Supreme Court have also authored historical decisions.
    • One of the best known is when a Vacation Bench Judge in June 1975, refused PM Indira Gandhi’s plea to stay an Allahabad High Court decision setting aside her election – a decision which triggered the Emergency.
    • A Constitution Bench of the court had heard the triple talaq case during vacation days.

    Issues with court vacations

    • Huge pendency: Extended frequent vacations is not good optics, especially in the light of mounting pendency of cases and the snail’s pace of judicial proceedings.
    • Creating further delays: For an ordinary litigant, the vacation means further unavoidable delays in listing cases.

    Arguments in favour

    • Rejuvenation of judges: Lawyers have often argued that in a profession that demands intellectual rigour and long working hours — both from lawyers and judges — vacations are much needed for rejuvenation.
    • Long working hours: Judges typically work for over 10 hours on a daily basis. Apart from the day’s work in court from 10.30 am to 4 pm, they also spend a few hours preparing for the next day.
    • Preparing for judgments: A frequently-made argument is that judges utilise the vacation to write judgments.
    • Courts not in session: Another argument is that judges do not take leave of absence like other working professionals when the court is in session.
    • Socialization: Family tragedies, health are rare exceptions, but judges rarely take the day off for social engagements.
    • No impact on pendency: Data show that the Supreme Court roughly disposes of the same number of cases as are instituted before it in a calendar year.

    Reforming the vacation clause

    • In 2000, the Justice Malimath Committee, set up to recommend reforms in the criminal justice system, suggested that the period of vacation should be reduced by 21 days.
    • It suggested that the Supreme Court work for 206 days, and High Courts for 231 days every year.
    • In its 230th report, the Law Commission of India headed by Justice A R Lakshmanan in 2009 called for reform in this system.
    • Considering the staggering arrears, vacations in the higher judiciary must be curtailed by at least 10 to 15 days and the court working hours should be extended by at least half an hour, it said.
    • In 2014, when the Supreme Court notified its new Rules, it said that the period of summer vacation shall not exceed seven weeks from the earlier 10-week period.

     

    Click and get your FREE Copy of CURRENT AFFAIRS Micro Notes

    (Click) FREE 1-to-1 on-call Mentorship by IAS-IPS officers | Discuss doubts, strategy, sources, and more

  • What is the Recusal of Judges?

    A Supreme Court judge recused herself from hearing a writ petition filed by Bilkis Bano against the decision to prematurely release 11 men sentenced to life imprisonment for gang-raping her during the 2002 riots.

    What is the Recusal of Judges?

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

    Rules on Recusals

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

    Issues with recusal

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

    Back2Basics: Bilkis Bano Case

    • Bilkis Bano is a gangrape survivor of the 2002 riots in Gujarat. Rioters brutally attacked Bilkis and her family, raped the women and killed many of them.
    • Her case was taken up by the National Human Rights Commission (NHRC) and Supreme Court. Later, the Supreme Court transferred the investigation to the CBI and the case to Mumbai to facilitate a free and fair trial.
    • Eleven men were convicted by the trial court and sentenced to life. The Bombay High Court confirmed their life terms in 2017.
    • In 2019, the Supreme Court awarded compensation of Rs 50 lakh to Bilkis — the first such order in a case related to the 2002 riots.
    • The convicts were later released after the state government’s remission to them for spending more than 15 years in jail.

    Issues with this remission

    • Causality of a heinous crime: The remission runs contrary to the spirit of contemporary thinking on treating crimes against women and children as so heinous that the perpetrators should not be considered for remission.
    • Whimsy release: The CrPC does permit premature release in the form of remission or commutation in life sentences, but it should be based on a legal and constitutional scheme, and not on a ruler’s whimsy.
    • Political considerations: It would be unjustified if given for political considerations merely because of elapse of the minimum number of years they have to serve.

     

    Click and get your FREE Copy of CURRENT AFFAIRS Micro Notes

    (Click) FREE 1-to-1 on-call Mentorship by IAS-IPS officers | Discuss doubts, strategy, sources, and more