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Subject: Judiciary

  • 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.

     

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  • 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.

     

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  • 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.

     

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  • 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.

     

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  • Why is Parliament silent on Voiding of NJAC: Vice-President

    njac

    VP asked the two Houses for not taking cognizance, over the last seven years, of the 2015 Supreme Court judgment setting aside the Constitutional amendment to constitute the National Judicial Appointment Commission (NJAC).

    Background

    • Since few days, Judiciary and Executive are at loggerheads.
    • VP pointed out that the amendment had been passed with unprecedented support by both Houses and approval from 16 State Assemblies.
    • However, on October 16, 2015, the Supreme Court ruled that it was not in consonance with the basic structure of the Constitution, and scrapped the legislation.

    What was NJAC?

    • The NJAC was a body which 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.

    Composition of NJAC

    • Chief Justice of India would be the Chairman of the NJAC
    • Two senior-most judges of the Supreme Court
    • The Law and Justice Minister
    • Two eminent persons would be selected by a committee which would be composed of the Prime Minister, the Chief Justice of India and the Leader of Opposition

    Why was the NJAC Act struck down?

    • The five-judge SC bench struck down the NJAC Act along with the 99th Constitutional Amendment Act in a 4:1 ratio.
    • It was repealed by a five-judge bench, famously known as the Fourth Judges Case, 2015.
    • It was termed ‘unconstitutional’ and was struck down, citing it as having affected the independence of the judiciary.

    Benefits of the NJAC Act

    Justice Chelameshwar praised the NJAC Act because-

    • Transparent process: It involved a smooth and transparent process for the appointment of judges.
    • Brings checks and balances: the exclusion of checks and balances principle leads to the destruction of the basic structure of the Constitution.
    • Seeks balance of power: In a democratic setup, the executive cannot be completely excluded.
    • Global examples: In the dissent order, an example of the United States of America was given, where the head of the Executive is conferred with the power to appoint the judges.

    Issues with collegium system

    • Alleged favouritism: The collegium system does not provide any guidelines or criteria for the appointment of the Supreme Court judges and it increases the ambit of favouritism.
    • Ambiguous process: The absence of an administrative body is also a reason for worry because it means that the members of the collegium system are not answerable for the selection of any of the judges.
    • Isolating the executive: The check and balance principle is necessary because it ensures that no organ of democracy is exercising its power in an excessive manner.
    • Extra-constitutional nature: The collegium system tells us that even though the collegium system is not mentioned anywhere in the Constitution, rather it has evolved over a period of time from different landmark cases.
    • Lack of transparency: Nepotism has been often witnessed in the judiciary due to a lack of criteria for the appointment of judges.

    What can we, as aspirants, observe here?

    • 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.

    Way forward

    • NJAC needs to be amended to keep the judiciary independent.
    • According to Justice Deepak Gupta, retired senior civil servants need to be inducted into the body appointing judges.
    • The Supreme Court needs to lay down certain guidelines for appointing judges and those guidelines should be strictly followed and codified.
    • Apart from that, all the notifications should be issued in the public domain to make the process more transparent.

     

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  • We are the most transparent institution: Supreme Court

    The Supreme Court has said that it had become a “fashion” for its former judges to comment on earlier decisions of the Collegium when they were part of it while adding that the apex court was the “most transparent institution”.

    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”.

    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.

    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.

     

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  • Doubling court strength won’t end pendency: Supreme Court

    pendency

    Judiciary is overburdened because of the system, says Chief Justice of India Chandrachud; he points out that it is already difficult to find good lawyers to fill judicial vacancies in High Courts.

    What is the news?

    • The Supreme Court has said that increasing the number of judges will not demolish the perennial problem of pendency.
    • It noted that it is already difficult finding good lawyers to accept the call to the Bench in High Courts.

    Indian Judiciary: A Backgrounder

    • Our Judicial system has been the nation’s moral conscience keeper.
    • It speaks truth to political power, upholds the rights of citizens, mediates between Centre-state conflicts, provides justice to the rich and poor alike, and on several momentous occasions, saved democracy itself.
    • Despite its achievements, a gap between the ideal and reality has been becoming clear over the years.
    • The justice delivery is slow, the appointment of judges is mired in controversy, disciplinary mechanisms scarcely work, hierarchy rather than merit is preferred, women are severely under-represented, and constitutional matters often languish in the Supreme Court for years.

    Why there is huge pendency?

    There are various reasons for delay of disposal of cases. Some of the important reasons as well as some suggestion and recommendations are as follows:

    • Low judge strength and appointment: In High courts of India, there are 1079 approved strength of judges out of which 680 is the working strength. There are 399 vacancies as per the approved strength.
    • Process of law: There are lot of hearings in a case, number of adjournments in a case, victims become frustrated of fighting for justice. The accused are misusing the process of law for their benefit.
    • Absenteeism of Judges: Judges need vacations to spent time with their family and society. The judiciary is providing them vacations to spent time in the society but some judges need more holidays to enjoy their life.
    • Number of appeals available in a case: Appeal provisions are made to satisfy the party or to check justice but litigants made it a means to earn more money from the parties. They make an appeal in every case decided by the lower court.
    • Lack of infrastructure: Courts lack of basic facilities like proper washroom facilities, canteen facilities, parking, and library for advocates, sitting facilities for advocates and drinking water facilities.
    • Misuse of process of law: There are so many cases which are running for more than 30 years and accused are contesting election and doing the corruption. The delay is often rewarding for the accused.
    • Legal education system: Legal education is not capable to produce efficient law professionals. Advocates are not capable do trial efficiently and fast, they need time to prepare for the case that results in slow trial of the case.

    Other challenges to the judicial system

    • Lack of infrastructure of courts
    • High vacancy of judges in the district judiciary
    • Pendency of Cases
    • Ineffective planning in the functioning of the courts
    • Delay in the delivery of judgements
    • Lack of transparency in appointments and transfers.
    • Corruption
    • Undertrials serving Jail
    • Outdated laws ex. Section 124A IPC

    What led to the underperformance of the Indian Judiciary?

    The primary factors contributing to docket explosion and arrears as highlighted by the Justice Malimath Committee report are as follows:

    • Population explosion
    • Litigation explosion
    • Hasty and imperfect drafting of legislation
    • Plurality and accumulation of appeals (Multiple appeals for the same issue)
    • Inadequacy of judge strength
    • Failure to provide adequate forums of appeal against quasi-judicial orders
    • Lack of priority for disposal of old cases (due to the improper constitution of benches)

    Recent developments:

    Proposal for the creation of National Judicial Infrastructure Corporation (NJIC)

    • The CJI has pitched to set up a National Judicial Infrastructure Corporation (NJIC) to develop judicial infrastructure in trial courts.
    • He indicated a substantial gap in infrastructure and availability of basic amenities in the lower judiciary.
    • There is a dearth of court halls, residential accommodation, and waiting rooms for litigants in trial courts, especially in smaller towns and rural areas.
    • Experience shows that budgetary allocation for state judiciary often lapses since there is no independent body to supervise and execute such works.
    • NJIC is expected to fill this vacuum and overcome problems related to infrastructure.

    Way forward

    • Creating NJIC: It will bring a revolutionary change in the judicial functioning provided the proposed body is given financial and executive powers to operate independently of the Union and the State governments.
    • Appointment reforms: There are many experts who advocate the need to appoint more judges with unquestionable transparency in such appointments.
    • Creating All Indian Judiciary Services: It would be a landmark move to create a pan-India Service that would result in a wide pool of qualified and committed judges entering the system.
    • Technology infusion: The ethical and responsible use of AI and ML for the advancement of efficiency-enhancing can be increasingly embedded in legal and judicial processes. Ex. SUPACE.
    • Legal education: This should be in alignment with the evolving dynamics of the law and must be propagated in trial and constitutional courts. This will improve the competence of the judicial system.
    • Alternate Dispute Resolution (ADR): ADR mechanisms should be promoted for out-of-court settlements. Primary courts of appeal should be set up.

     

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  • What are in-camera proceedings, when are they conducted?

    The Supreme Court has rejected a plea by a rape case accused for an in-camera hearing.

    What are in-camera proceedings?

    • In-camera proceedings are private, unlike open court proceedings.
    • It is conducted as per the court’s discretion in sensitive matters to ensure protection and privacy of the parties involved.
    • The proceedings are usually held through video conferencing or in closed chambers, from which the public and press are excluded.
    • In an open court or open justice system, which is the usual course of proceedings, the press is allowed to report on the matter being heard.

    In-camera trial in rape cases

    • Section 327 of the Code of Criminal Procedure (CrPC) has detailed the types of cases that should be recorded on camera, including inquiry into and trial in rape case.
    • The said section states that if the presiding judge or a magistrate thinks fit, she can order at any stage of the proceedings that the public generally, or any particular person, shall not remain present in the courtroom or the court building.
    • The said provision says that the inquiry into and trial be held in camera for various offences punishable under section 376 (rape) of the IPC.
    • The law also prescribes that in such cases, the trial be conducted as far as possible by a woman judge or a magistrate.

    Other cases where in-camera proceedings are held

    • In-camera proceedings are usually conducted at family courts in cases of matrimonial disputes, including judicial separation, divorce proceedings, impotence, and more.
    • In-camera proceedings are also conducted during the deposition of witnesses of terrorist activities as per the court’s discretion, so as to protect them and maintain national security.

    What about publishing of such a hearing?

    • Section 327 of the CrPC states that it shall not be lawful to publish any matter in relation to in-camera proceedings except with the previous permission of the court.
    • It adds that the ban on publishing of trial proceedings for offence of rape may be lifted subject to maintaining confidentiality of name and address of the parties.

     

     

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  • Supreme Court launches online RTI Portal

    The Supreme Court has launched an online portal that will help citizens file and access applications under the Right to Information (RTI) Act in matters related to the court

    What is the online RTI portal?

    • The online RTI portal has been initiated to make it convenient for people to access information about the Supreme Court.
    • So far, RTI applications at the Supreme Court had to be filed only via post.
    • Various public interest litigation (PILs) had been filed before the Supreme Court seeking an online RTI portal for the Court.
    • The online portal is likely to streamline responses of the Supreme Court under the Right to Information Act.

    How does the online portal work?

    • The online portal can be accessed at a dedicated url.
    • Essentially, the process of filing an RTI in the Supreme Court is the same as how one normally files the application.
    • This web portal can be used only by Indian citizens to file RTI applications, first appeals and to make payment for fees, and copying charges, under the Right to Information Act, 2005 (RTI Act).
    • An applicant must first register themselves in the web portal.

    Fees prescribed

    • The applicant can pay the prescribed fee through internet banking, credit/debit card of Master/Visa or UPI.
    • The fee per RTI application is â‚č10.
    • Any applicant who is Below Poverty Line (BPL) is exempted to pay the application fee under the RTI Rules, 2012.

    Expected time for response

    • By law, RTIs must be replied to within 30 days.
    • In fact, in life and death cases, RTIs must be responded to within 48 hours.

    Back2Basics: Right to Information

    • RTI is an act of the parliament which sets out the rules and procedures regarding citizens’ right to information.
    • It replaced the former Freedom of Information Act, 2002.
    • Under the provisions of RTI Act, any citizen of India may request information from a “public authority” (a body of Government or “instrumentality of State”) which is required to reply expeditiously or within 30.
    • In case of the matter involving a petitioner’s life and liberty, the information has to be provided within 48 hours.
    • The Act also requires every public authority to computerize their records for wide dissemination and to proactively publish certain categories of information so that the citizens need minimum recourse to request for information formally.

     

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  • Indian Judiciary: A Call for Reforms

    Judiciary

    Context

    • The reach of India’s highest court is all-pervasive. The Supreme Court sits in final judgment over decisions not only of the high courts in the states, but also over a hundred tribunals, central and state, functioning throughout India. Hence the accountability of apex court crucial for judicial system in India.

    Brief in other words: Significance of judiciary

    • Decisions of Courts are binding on all: The law declared by the Supreme Court, its pronouncements on the constitutional validity of enacted law, including constitutional amendments, is binding on all other courts and authorities in the country (Article 141).
    • Executive and legislature are under the scrutiny of Courts: There is virtually no area of legislative or executive activity which is beyond the court’s scrutiny.

    Why accountability of higher judiciary is necessary?

    • High courts are not ready to reform themselves: In the Salem Advocate Bar Association case, the justices had requested the high courts to implement the detailed blueprint on case management most of them have not.
    • Limitations of supreme court to govern the High courts: Supreme court could not direct the high courts to do so because under our constitutional scheme the latter are autonomous constitutional bodies not subject to administrative directions of the Supreme Court.
    • Self-accountability in administrations of courts: It is in the high courts that there are now left the largest number of roadblocks and delays; in their administrative functioning the high courts are answerable to no one but themselves. This often enables the Supreme Court to plead helplessness, hardly a good augury for integrated court-management.

    How judiciary can maintain its credibility and accountability?

    • Judiciary need to Preserve the independence: the judiciary as an institution needs to preserve its independence, and to do this it must strive to maintain the confidence of the public in the established courts.
    • Judges should safeguard the judges: The independence of judges is best safeguarded by the judges themselves through institutions and organisations that the law empowers them to set up, to preserve the image of an incorruptible higher judiciary that would command the respect of all right-thinking people.
    • Reform on case management: A bench of three justices of the Supreme Court, in a judgment delivered in August 2005, had drawn up a fine blueprint on case-management, on how to make recent amendments in our procedural laws work on the ground, and how to get more cases moving along: For instance, on three different tracks, fast track, normal track and slow track.
    • Supreme court should directly administer High courts: It is time that the Supreme Court be entrusted with direct responsibility for the functioning of the high courts: Only then can the highest court be an effective apex court, only then can the Supreme Court be made answerable, as it should be, for judicial governance for the entire country.
    • Public disclosure of income by judges: Judges must make annual financial disclosure statements, not privately to their respective chief justices, but publicly. It is done by justices of the Supreme Court.

    How judiciary in USA maintain its credibility and accountability?

    • Judicial council act: In the United States, under the Judicial Councils Act, 1980, task of judicial independence has been gladly undertaken by the judges. But regrettably, so far, there is no law in India to guide our judges only “guidelines”. There is a felt need for a law.
    • Judges investigate the judges: The 1980 US Act confers powers on bodies comprised of judges to take such action against a federal judge “as is appropriate, short of removal.”
    • A case study of America: Under this law, some time ago, a committee of fellow judges had investigated complaints against a federal district judge, John McBryde; the Judicial Council reprimanded him and suspended him from hearing new cases for a year.
    • Corruption Investigation Not violating the judicial independence: McBryde challenged the decision. He argued that the 1980 law violated the judicial independence which the US Constitution had guaranteed to life-tenured federal judges; But a US Court of Appeals rejected all these pleas.
    • Oversight of judges is not interference: It accepted the argument of the US Solicitor-General that judicial independence, protected by Article III of the US Constitution, was meant to insulate judges from interference from other branches of government and not from oversight by other judges.

    Conclusion

    • In India, in the past and in recent times, some things have gone wrong. And citizens need the reassurance of a system of judicial accountability a remedial mechanism which will protect the higher judiciary from some of its own members who have gone astray. Such reassurance can only be provided by enacting a law on the lines of the American model.

    Mains Question

    Q. What are the reasons for very less accountability in higher judiciary in India? How corruption in higher judiciary is addressed in USA?

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