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Subject: Judiciary

  • Back in news: Supreme Court Collegium

    The Supreme Court has lambasted the Centre for withholding names recommended or reiterated by the collegium for judicial appointments, even saying that the government is using silence and inaction as “some sort of a device” to force worthy candidates and prominent lawyers to withdraw their consent.

    Why in news?

    • The Union Law Minister since few months has launched a relentless attack on the collegium system for lack of transparency.

    What exactly is the Collegium System?

    • The collegium system was born out of years of friction between the judiciary and the executive.
    • The hostility was further accentuated by instances of court-packing (the practice of changing the composition of judges in a court), mass transfer of HC judges and two supersessions to the office of the CJI in the 1970s.
    • The Three Judges cases saw the evolution of the collegium system.

    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.

    How does the collegium system work?

    • The collegium of the CJI and four senior-most judges of the Supreme Court make recommendations for appointments to the apex court and High Courts.
    • The collegium can veto the government if the names are sent back by the latter for reconsideration.
    • The basic tenet behind the collegium system is that the judiciary should have primacy over the government in matters of appointments and transfers in order to remain independent.

    The 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. It has even been accused of nepotism.

    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 of opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.

     

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  • SC orders release of all convicts in Ex-PM Assassin Case

    sc

    The Supreme Court has ordered for the immediate release of six convicts who are serving life sentence for more than three decades in the Rajiv Gandhi assassination case.

    What is the news?

    • The Bench referred to the case of their former co-convict G. Perarivalan, who was granted premature release by the apex court this year in exercise of its extraordinary powers under Article 142 of the Constitution.

    What does Pardon mean?

    • A pardon is a government/executive decision to allow a person to be absolved of guilt for an alleged crime or other legal offense as if the act never occurred.

    Why need a Pardon?

    • Pardons can be granted when individuals are deemed to have demonstrated that they have “paid their debt to society”, or are otherwise considered to be deserving of them.
    • Pardons are sometimes offered to persons who were either wrongfully convicted or who claim that they were wrongfully convicted.
    • Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone that is seen as wrongly convicted.

    What does Article 161 say?

    • Article 161 of the Constitution provides the Governor with the power to remit or commute the sentence of any prisoner.
    • The Governor’s decision will be subject to judicial review by the constitutional courts.
    • The advice of the State Cabinet is binding on the Governor in matters relating to commutation/remission of sentences under Article 161.

    Why did the Supreme Court intervene here?

    • In its judgment in the Perarivalan case in May, the apex court had held that the State Cabinet’s advice was binding on the Governor under Article 161 (Governor’s power of clemency) of the Constitution.
    • The Governor had no business forwarding the pardon pleas to the President after sitting on it for years together.

    Back2Basics: Article 142

    • Article 142 provides discretionary power to the Supreme Court.
    • It states that the court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
    • Such decree shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament.
    • It is usually used in cases involving human rights and environmental protection.

     

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  • Centre constitutes 22nd Law Commission

    The Centre has constituted the Law Commission of India by appointing former Karnataka High Court Chief Justice Ritu Raj Awasthi as its chairperson.

    Law Commission of India

    • It is an executive body established by an order of the Government of India. First law commission of independent India was established post the Independence in 1955
    • Tenure: 3 Years
    • Function: Advisory body to the Ministry of Law and Justice for “Legal Reforms in India”
    • Recommendations: NOT binding
    • First Law Commission was established during the British Raj in 1834 by the Charter Act of 1833
    • Chairman: Macaulay; It recommended for the Codifications of the IPC, CrPC etc.

    Its’ composition

    The 22nd Law Commission will be constituted for a period of three years from the date of publication of its Order in the Official Gazette. It will consist of:

    1. Full-time Chairperson;
    2. Four full-time Members (including Member-Secretary)
    3. Secretary, Department of Legal Affairs as ex-officio Member;
    4. Secretary, Legislative Department as ex officio Member; and
    5. Not more than five part-time Members.

    Terms of reference

    • The Law Commission shall, on a reference made to it by the Central Government or suo-motu, undertake research in law and review of existing laws in India for making reforms therein and enacting new legislations.
    • It shall also undertake studies and research for bringing reforms in the justice delivery systems for elimination of delay in procedures, speedy disposal of cases, reduction in cost of litigation etc.

    Major reforms undertaken

    • The First Law Commission under Macaulay suggested various enactments to the British Government, most of which were passed and enacted and are still in force in India.
    • These include the Indian Penal Code (first submitted in 1837 but enacted in 1860 and still in force), Criminal Procedure Code (enacted in 1898, repealed and succeeded by the Criminal Procedure Code of 1973), etc.
    • Thereafter three more Law Commissions were established which made a number of other recommendations the Indian Evidence Act (1872) and Indian Contract Act (1872), etc. being some of the significant ones.

    Role in legal reforms

    The Law Commission has been a key to law reform in India.

    • Its role has been both advisory and critical of the government’s policies
    • In a number of decisions, the Supreme Court has referred to the work done by the commission and followed its recommendations.
    • The Commission seeks to simplify procedures to curb delays and improve standards of justice.
    • It also strives to promote an accountable and citizen-friendly government that is transparent and ensures the people’s right to information.

     

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  • What is Sealed Cover Jurisprudence?

    seal

    The Supreme Court has suggested a way out of routinely filing documents in sealed covers, especially in cases touching on national security.

    What did the apex Court say?

    • The court said the government could redact the sensitive portions and show the rest to the petitioners.
    • This would address both the state’s concerns about “national security” and the “right to know” of petitioners.

    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.

    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

    • This practice appears to be unfavorable to the principles of transparency and accountability of the Indian justice system.
    • It stands in contrast to the idea of an open court, where decisions can be subjected to public scrutiny.
    • 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.
    • Besides, it is argued that not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication.

     

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  • Non-Transparent Collegium, Is there any Alternative?

    Collegium

    Context

    • Once again, the Collegium of the Supreme Court of India is in the news, and once again for the wrong reasons. This time, it is because of the difficulty hat its five judges have in getting together for one meeting. Justice Chandrachud and Justice Nazeer withhold approval.Apparently, they do not object to the names but object to the procedure of circulation.

    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 affect a mass transfer of High Court judges across the country.

    Collegium

    What was the perception around Independence of judiciary under threat?

    • There was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.
    1. First Judges Case (1981): SC 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.
    2. 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.
    3. 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.

    What are the problems associated with collegium system?

    • Emphasis on Seniority principle: Collegium system emphasizes excessively on seniority.
    • No discussion on merit and objectivity: However, following the seniority convention offers a semblance of certainty and transparency, even though it takes away from selecting judges on other objective criteria such as merit and competence.
    • Collegium changes its own decision: At times, the sanctity of Collegium’s own decisions no longer stands. Its own previous decision to appoint other persons to the Supreme Court was reversed, without any explanation or justification.
    • Lack of procedure: Besides this, no one knows how judges are selected, and the appointments made reek of biases of self-selection and in-breeding.
    • Widely known Nepotism: Sons and nephews of previous judges or senior lawyers tend to be popular choices for judicial roles.
    • Lack of checks and balances: With its ad hoc informal consultations with other judges, which do not significantly investigate criteria such as work, standing integrity and so on, the Collegium remains outside the sphere of legitimate checks and balances.
    • Opaque system: The lack of a written manual for functioning, the absence of selection criteria, the arbitrary reversal of decisions already taken, the selective publication of records of meetings.

    Collegium

    Collegium system is blessing in disguise

    • Protect independence of judiciary: The framers of the Constitution were alive to the likely erosion of judicial independence.
    • On May 23, 1949, K T Shah stated that the Judiciary, which is the main bulwark of civil liberties, should be completely separate from and independent of the Executive, whether by direct or by indirect influence.
    • NJAC Declared unconstitutional: In 2016, the Supreme Court struck down a constitutional amendment for creating the National Judicial Appointments Commission (NJAC).
    • Distrust on political executive: The SC strongly disapproved of any role for the political executive in the final selection and appointment of judges. The SC said that “reciprocity and feelings of payback to the political executive” would be disastrous to the independence of the judiciary.

    What is National Judicial Appointment Commission (NJAC)?

    • What is NJAC?
    • guarantee the independence of the system from inappropriate politicisation,
    • Strengthen the quality of appointments,
    • Enhances the fairness of the selection process,
    • Promotes diversity in the composition of the judiciary, and
    • Rebuilds public confidence in the system.
    • NJAC was missed opportunity of reforms: The SC in its majority decision declared the NJAC unconstitutional and missed an opportunity to introduce important reformatory changes in the functioning of the judiciary.
    • Judicial majority could have been discussed: According to the experts, the Supreme Court could have read down the law, and reorganised the NJAC to ensure that the judiciary retained majority control in its decisions. However, it did not amend the NJAC Act to have safeguards that would have made it constitutionally valid.
    • No reforms in the collegium system: It also did not reform the Collegium in any way to address the various concerns voiced by one and all, including the Court itself, Instead, to the disappointment of all those who hoped for a strong, independent and transparent judiciary, it reverted to the old Collegium based appointments mechanism.

    Collegium

    Conclusion

    • Appointments to the top court seem to be the preserve of judges from the High Court with a handful of appointments from the Bar. Surely some nodding acknowledgement should be given to a specific provision made by the founding fathers in the Constitution. Judges appointing the judges is not a sustainable practice for future of judiciary.

    Mains Question

    Q.What is NJAC? Why Collegium system is blessings in disguise? Explain the Collegium system of appointments.

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  • Justice DY Chandrachud nominated as next CJI

    cji

    Chief Justice of India U.U. Lalit nominated Justice D.Y. Chandrachud as his successor. He will be 50th CJI.

    How is CJI selected?

    • Justice U.U. Lalit is the senior-most judge in the Supreme Court now.
    • The ‘Memorandum of Procedure of Appointment of Supreme Court Judges’ says “appointment to the office of the CJI should be of the seniormost Judge of the SC considered fit to hold the office”.
    • The process begins with the Union Law Minister seeking the recommendation of the outgoing CJI about the next appointment.

    What is the time frame?

    • The Minister has to seek the CJI’s recommendation at the “appropriate time”.
    • The Memorandum does NOT elaborate or specify a timeline.

    Making final appointment

    The Memorandum says:

    1. Receipt of the recommendation of the CJI
    2. The Union Minister of Law, Justice and Company Affairs will put up the recommendation to the PM
    3. PM will advise the President in the matter of appointment
    4. The President of India appoints the CJI

    Chief Justice of India: A brief background

    • The CJI is the chief judge of the Supreme Court of India as well as the highest-ranking officer of the Indian federal judiciary.

    Appointment

    • The Constitution of India grants power to the President to nominate, and with the advice and consent of the Parliament, appoint a chief justice, who serves until they reach the age of 65 or until removed by impeachment.
    • Earlier, it was a convention to appoint seniormost judges.
    • However, this has been broken twice. In 1973, Justice A. N. Ray was appointed superseding 3 senior judges.
    • Also, in 1977 Justice Mirza Hameedullah Beg was appointed as the chief justice superseding Justice Hans Raj Khanna.

    Qualifications

    The Indian Constitution says in Article 124 (3) that in order to be appointed as a judge in the Supreme Court of India, the person has to fit in the following criteria:

    • He/She is a citizen of India and
    • has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
    • has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
    • is, in the opinion of the President, a distinguished jurist

    Functions

    • As head of the Supreme Court, the CJI is responsible for the allocation of cases and appointment of constitutional benches which deal with important matters of law.
    • In accordance with Article 145 of the Constitution and the Supreme Court Rules of Procedure of 1966, the chief justice allocates all work to the other judges.

    On the administrative side, the CJI carries out the following functions:

    • maintenance of the roster; appointment of court officials and general and miscellaneous matters relating to the supervision and functioning of the Supreme Court

    Removal

    • Article 124(4) of the Constitution lays down the procedure for removal of a judge of the Supreme Court which is applicable to chief justices as well.
    • Once appointed, the chief justice remains in the office until the age of 65 years. He can be removed only through a process of removal by Parliament as follows:
    • He/She can be removed by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present.
    • The voting has been presented to the President in the same session for such removal on the ground of proven misbehavior or incapacity.

     

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  • Back in news: Supreme Court Collegium

    The Supreme Court Collegium has issued an unprecedented statement acknowledging differences between Chief Justice of India and two senior judges over the procedure to select candidates for appointment as apex court judges.

    What is the news?

    • Two senior judges of the apex court objected to the CJI’s never-before act of circulating his written recommendations among the collegium members for their approval.
    • The standard procedure instead is to have adopt across-the-table discussions.

    What is the issue over this?

    • CJI Lalit is slated to retire on 8
    • As per the Supreme Court convention, the outgoing CJI does not hold collegium meetings when the appointment of his successor has already started.

    What exactly is the Collegium System?

    • The collegium system was born out of years of friction between the judiciary and the executive.
    • The hostility was further accentuated by instances of court-packing (the practice of changing the composition of judges in a court), mass transfer of HC judges and two supersessions to the office of the CJI in the 1970s.
    • The Three Judges cases saw the evolution of the collegium system.

    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.

    How does the collegium system work?

    • The collegium of the CJI and four senior-most judges of the Supreme Court make recommendations for appointments to the apex court and High Courts.
    • The collegium can veto the government if the names are sent back by the latter for reconsideration.
    • The basic tenet behind the collegium system is that the judiciary should have primacy over the government in matters of appointments and transfers in order to remain independent.

    The 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. It has even been accused of nepotism.

    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 of opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.

     

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  • Live-streaming of Court: Definitely A Great Move

    CourtContext

    • On September 27, the Supreme Court enabled the live streaming of the hearing of cases.
    • A full court of all Supreme Court judges under the leadership of Chief Justice U U Lalit took the unanimous decision to live-stream constitutional bench proceedings. Justice Chandrachud, the Chairperson of the Supreme Court’s E-committee and the driving force behind the live streaming initiative, began the hearing in his courtroom by announcing,”We are virtual”.

    Background

    • The Court’s original decision by the bench of the then Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud on September 27, 2018, allowing the live telecast of important proceedings paved the way for this outcome. They had held that the live-streaming of court proceedings is in the public interest.
    • Their vision had the full support of Chief Justices M V Ramana and U U Lalit.

    What is live-streaming technology?

    • At its core, streaming content is meant to help people attend events, expos, and experiences they cannot attend in person.
    • Live streaming technology is how videos are streamed over the internet, live, in real-time, as they are being recorded.
    • Live streaming technology is the internet’s response to live television broadcasts, with the most popular being news shows and sports.

    What is Live-streaming of the court?

    • Live streaming of court is that its proceedings that the people can watch on their mobiles and computers.All courtrooms function under camera glare.

    CourtWhy Live-streaming of court is so important?

    • Instilling Faith in the Judiciary: Enabling the ordinary people of the country to view, without any barrier, the workings of the highest court of the land will go a long way in instilling faith in the judiciary.
    • Empowering the masses: It will enable the legal system to deliver on its promise of empowering the masses.Important step toward developing an informed citizenry.
    • Respect to Rule of Law: The decision will enable people to understand the importance of the rule of law.It will help people appreciate that the judiciary is firm in protecting the rights of the impoverished, historically marginalised and disempowered sections of society. Potential to build a culture of respect for the rule of law.
    • Living up the expectation of Constitution: Live-Streaming of Court proceedings is manifested in public interest. Public interest has always been preserved through the Constitution article 19 and 21.
    • More transparency: It will encourage the principle of open court and reduce dependence on second-hand views. It will effectuate the public’s right to know. This would inspire confidence in the functioning of the judiciary as an institution and help maintain the respect that it deserved as a co-equal organ of the state.
    • Raise the quality and standards of the legal profession: Lawyers will be better prepared to appear before the court and they will be mindful of not making irresponsible remarks. An inclusive approach to public scrutiny could nudge and enable lawyers to take the justice delivery mechanisms more seriously than they may have in the past.
    • Level playing field: It also creates a level playing ground for the younger members of the legal profession as their preparedness and intellectual prowess will be apparent to all.
    • Academic help: Watching courtroom proceedings,actual arguments by lawyers and searching questions by judges  could inspire law students to take up this relatively neglected field.Law faculty members and legal researchers will be motivated to work on new areas of scholarship and research relating to the functioning of the judiciary and legal profession.
    • Easy accessibility reducing the obstacle of distance: With live-streaming, the litigants will no longer have to come to Delhi to witness proceedings of their case which would be just a click away.
    • Strengthening Democracy: Transparency and accessibility of the process of justice delivery will strengthen the country’s democracy

    CourtWhat are the Concerns around live-streaming of court?

    • Contempt of court: Video clips of proceedings from Indian courts are already on YouTube and other social media platforms with sensational titles and little context, such as “HIGH COURT super angry on army officer”.
    • Disinformation and sensationalism: There are fears that irresponsible or motivated use of content could spread disinformation among the public.
    • Unnecessary activism: With the advent of social media, every citizen became a potential journalist. Study shows that justices behave like politicians when given free television time, they act to maximize their individual exposure
    • Internet connectivity: Internet connectivity issues and the need for a well-equipped space where lawyers can conduct their cases are some of the major problems requiring attention.
    • Awareness and training: Judges, court staff and lawyers are not well-versed with digital technology and its benefits. The need of the hour is for them to be made aware of these and receive adequate training.

    CourtWhich countries live-stream their court hearing?

    • Internationally,constitutional court proceedings are recorded in some form or the other.
    • United States: The Supreme Court of the United States streams its hearings in audio format at the end of each week.The US top court publishes hearings on its website and Oyez of all cases. Oyez is a multimedia judicial archive of the Supreme Court of the United States’ proceedings.
    • Brazil: The Supreme Federal Court of Brazil live streams hearings of all cases in video format on television.
    • UK: The UK Supreme Court live streams hearings of all cases in video format on its website.
    • Canada: The Canadian Supreme Court also live streams hearings of all its cases in video format on its website.
    • Australia: The Australian Supreme Court streams hearings of its full-court cases on its website with a delay of about a day. Meanwhile, the High Court of Australia (HCA) does not live-stream its proceedings.
    • China: In China,court proceedings are live-streamed from trial courts up to the Supreme People’s Court of China.

    Conclusion

    • The chief justices (past and present) and the judges of the Supreme Court deserve to be congratulated for enabling a path-breaking and democratic decision that allows the people of India to be able to watch the live proceedings of the Constitutional Bench.The distinguished jurist, Oliver Holmes,famously observed,“The great thing in the world is not so much where we stand, as in what direction we are moving.” The judges of the Supreme Court of India have ensured that we are indeed moving in the right direction.

    Mains Question

    Q.Adoption of technology will radically change the field of law and transform the judiciary. What will be the role of courts, judges, politicians,media and citizens of the country regarding live streaming of court proceedings. Discuss

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  • Live Streaming of SC proceedings: the rationale and the concerns

    From September 27 onward, all proceedings of Supreme Court Constitution Benches will be live-streamed, a full court meeting of the top court has decided.

    Background of the move

    • History was made on August 26 (2022) when the proceedings from the Chief Justice’s Court in the Supreme Court (SC) were live streamed.
    • In the ‘Swapnil Tripathi’ judgment, in September 2018, the SC had cleared the deck for live streaming of cases of national and constitutional importance.

    Immediate triggers for live streaming

    • They had agreed to hear a public interest litigation seeking live streaming of judicial proceedings on matters of constitutional and national importance.
    • Prime considerations cited are:
    1. De-congestion of courts and
    2. Improving physical access to courts for litigants who have to otherwise travel long distances

    Recommended by A-G

    • The Supreme Court approved a set of guidelines suggested by the A-G, which included allowing transcripts and archiving the proceedings.
    • However, the A-G suggested that the court must retain the power to withhold broadcasting, and to also NOT permit it in cases involving:
    1. Matrimonial matters,
    2. Matters involving interests of juveniles or the protection and safety of the private life of the young offenders,
    3. Matters of National security,
    4. To ensure that victims, witnesses or defendants can depose truthfully and without any fear.
    5. To protect confidential or sensitive information, including all matters relating to sexual assault and rape,
    6. Matters where publicity would be antithetical to the administration of justice, and
    7. Cases which may provoke sentiments and arouse passion and provoke enmity among communities.

    Live streaming in HCs

    • Following the SC’s decision, Gujarat High Court began live streaming its proceedings in July 2021.
    • Currently, the Jharkhand, Karnataka, Madhya Pradesh, Orissa, and Patna High Courts live stream their proceedings.
    • Allahabad High Court is learnt to be considering doing the same.

    Global examples of live streaming

    • United States of America: While the US Supreme Court has rejected pleas for broadcast of its proceedings, it has since 1955 allowed audio recording and transcripts of oral arguments.
    • United Kingdom: In 2005, the law was amended to remove contempt of court charges for recording proceedings of the Supreme Court.

    Why need live streaming of court?

    • Improved accountability: Live-streaming of court proceedings would serve as an instrument for greater accountability and formed part of the Code of Criminal Procedure, 1973.
    • Living up the expectation of Constitution: Live Streaming of Court proceedings is manifested in public interest. Public interest has always been preserved through the Constitution article 19 and 21
    • Empowering the masses: It will enable the legal system to deliver on its promise of empowering the masses.
    • More transparency: It will encourage the principle of open court and reduce dependence on second-hand views. It will effectuate the public’s right to know.
    • This would inspire confidence in the functioning of the judiciary as an institution and help maintain the respect that it deserved as a co-equal organ of the state.
    • Academic help: Live streaming may also be a help for academic purposes.

    Concerns around live streaming

    • Contempt of court: Video clips of proceedings from Indian courts are already on YouTube and other social media platforms with sensational titles and little context, such as “HIGH COURT super angry on army officer”.
    • Disinformation and sensationalism: There are fears that irresponsible or motivated use of content could spread disinformation among the public.
    • Unnecessary activism: With the advent of social media, every citizen became a potential journalist. Study shows that justices behave like politicians when given free television time, they act to maximize their individual exposure.

    Issues to judicial functioning

    • Decency of questions: During hearings judges may not ask questions or make comments that could be perceived as unpopular.
    • Triggers for oral observations: There is an increasing trend of oral observations of the court, which are not binding on parties replacing reasoned judgment and orders that are consequential.
    • Dignity of court may be compromised: Similarly, lawyers, aware of their new audience, may choose to grandstand and play to the gallery, especially in a case they expect to lose.

    Way forward

    • Selective broadcast: The solution may lie in carefully determining how the live streaming proceeds.
    • Careful selection of cases: Not uploading archived stream on the SC website until it is legally/technologically possible to ensure that such videos cannot be spliced.
    • Understanding public perception and sentiments: Other similar measures that reflect an understanding of how the public consumes (dis)information will ensure that live streaming enriches constitutionalism across the country.

    Conclusion

    • A hasty and wholesale introduction on the other hand is likely to land the SC right in the middle of the majoritarian and toxic information swamp that prevails in the country.

     

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  • The hijab case and the doctrine of essentiality

    doctrine of essentialityContext

    • A two-judge Bench of the Supreme Court of India is presently hearing arguments on the correctness of a Karnataka High Court judgment that upheld the ban on the use of the hijab by students in Karnataka which raises question on doctrine of essentiality.

     What is ‘doctrine of essentiality’?

    • A seven-judge Bench of the Supreme Court invented the doctrine of “essentiality” in the Shirur Mutt case in 1954. The court held that the term “religion” will cover all rituals and practices “integral” to a religion.

    Importance doctrine of essentiality

    • In the legal framework, the doctrine of essentiality is a doctrine that has evolved to protect the religious practices that are essential or integral and does not violate any fundamental right. India being a secular country has discrete religious beliefs and to deny any is to violate the freedom of religion.

    Why hijab is not an essential practice?

    • Wearing of hijab (head scarf) by Muslim women does not form a part of essential religious practices in Islamic faith and it is not protected under the right to freedom of religion guaranteed under Article 25 of the Constitution of India, the High Court of Karnataka declared on March 15 2022.

    doctrine of essentialityIs hijab essential part of Islam?

    • The Qur’an instructs Muslim women and men to dress modestly, and for some, the hijab is worn by Muslim girls and women to maintain modesty and privacy from unrelated males. According to the Encyclopedia of Islam and Muslim World, modesty concerns both men’s and women’s “gaze, gait, garments, and genitalia”.

    How do you identify essential religion practice?

    • The Court observed that in order to determine whether or not a particular practice is an essential part of religion, the test must be whether the absence of the practice itself

    Meaning of Article 26

    • Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right.

    doctrine of essentialityExamples of the essential religious practices test

    • While these issues are largely understood to be community-based, there are instances in which the court has applied the test to individual freedoms as well.
    • In a 2004 ruling, the Supreme Court held that the Ananda Marga sect had no fundamental right to perform the Tandava dance in public streets since it did not constitute an essential religious practice of the sect.
    • For example, in 2016, the Supreme Court upheld the discharge of an airman from the Indian Air Force for keeping a beard.
    • It distinguished the case of a Muslim airman from that of Sikhs who are allowed to keep a beard.
    • In 2015, the Supreme Court restored the Jain religious practice of Santhara/Sallekhana (a ritualistic fast unto death) by staying an order of the Rajasthan HC.

    doctrine of essentialityWhat is the Supreme Court’s judgement on Doctrine of Essentiality?

    • The doctrine of “essentiality” was invented by a seven-judge Bench of the Supreme Court in the ‘Shirur Mutt’ case in 1954.
    • It is a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religion.
    • The court held that the term “religion” will cover all rituals and practices “integral” to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion.
    • Referring to the Ayodhya case, the Constitution Bench had ruled in 1994 that A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open.

    How has the doctrine been used in subsequent years?

    • The ‘essentiality doctrine’ of the Supreme Court has been criticised by several constitutional experts.
    • Scholars of constitutional law have argued that the essentiality/integrality doctrine has tended to lead the court into an area that is beyond its competence, and given judges the power to decide purely religious questions.
    • As a result, over the years, courts have been inconsistent on this question — in some cases they have relied on religious texts to determine essentiality.
    • In others it relied on the empirical behaviour of followers, and in yet others, based on whether the practice existed at the time the religion originated.

    Issues over the doctrine

    • In the beginning, the court engaged with the question of whether untouchability, manifested in restrictions on entry into temples, was an “essential part of the Hindu religion”.
    • After examining selected Hindu texts, it came to the conclusion that untouchability was not an essential Hindu practice.
    • The idea of providing constitutional protection only to those elements of religion which the court considers “essential” is problematic as it assumes that one element or practice of religion is independent of other elements or practices.
    • So, while the essentiality test privileges certain practices over others, it is, in fact, all practices taken together that constitute a religion.

    How does essentiality square up against religious freedom?

    • Freedom of religion was meant to guarantee freedom to practice one’s beliefs based on the concept of “inward association” of man with God.
    • The apex court in ‘Ratilal Panachand Gandhi vs The State of Bombay and Ors’ (March 18, 1954) acknowledged that “every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience”.
    • The framers of the Constitution wanted to give this autonomy to each individual. Scholars have argued that the essentiality test impinges on this autonomy.
    • The apex court has itself emphasised autonomy and choice in its Privacy (2017), 377 (2018), and Adultery (2018) judgments.

    Its effect on society

    • Narrowing of safeguards to religious customs: It has allowed the Court to narrow the extent of safeguards available to religious customs by directly impinging on the autonomy of groups to decide for themselves what they deem valuable, violating, in the process, their right to ethical independence.
    • Negated legislation that might otherwise enhance the cause of social justice: It has also negated legislation that might otherwise enhance the cause of social justice by holding that such laws cannot under any circumstances encroach on matters integral to the practice of a religion. For example, in 1962, the Court struck down a Bombay law that prohibited excommunications made by the Dai of the Dawoodi Bohra community when it held that the power to excommunicate is an essential facet of faith and that any measure aimed at social welfare cannot reform a religion out of its existence.
    • A principle of anti-exclusion: Its application would require the Court to presume that a practice asserted by a religious group is, in fact, essential to the proponents of its faith. But regardless of such grounding, the Constitution will not offer protection to the practice if it excludes people on grounds of caste, gender, or other discriminatory criteria.

    Conclusion

    • For now, any Court hearing a matter touching upon a matter of faith has the unenviable task of acting not merely as an expert on law but also as an expert on religion.

    Mains question

    Q. Every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience. Critically examine in context of doctrine of essentiality.

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