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Subject: Judiciary

  • 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    • After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to affect a mass transfer of High Court judges across the country.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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  • Death Penalty: SC moots fair hearing

    death

    The Supreme Court has referred to a Constitution Bench the question of how to provide accused in death penalty cases a “meaningful, real and effective” hearing of their mitigating circumstances before a trial judge.

    Death Penalty: A backgrounder

    • Capital punishment, sometimes called death penalty, is execution of an offender sentenced to death after conviction by a court of law for a criminal offense.
    • It should be distinguished from extrajudicial executions carried out without due process of law.
    • The term death penalty is sometimes used interchangeably with capital punishment, though imposition of the penalty is not always followed by execution, because of the possibility of commutation to life imprisonment.

    When is it awarded?

    • The term “Capital Punishment” stands for most severe form of punishment.
    • It is the punishment which is to be awarded for the most heinous, grievous and detestable crimes against humanity.
    • While the definition and extent of such crimes vary, the implication of capital punishment has always been the death sentence.

    Special factors on the death penalty jurisprudence in India

    (a) Increase in Sexual Offences

    • The report on death penalty published by NLU Delhi shows that the rate of awarding capital punishment to the offences of rape with murder is much higher than other offences.
    • There is no doubt that rape is one of the most heinous crimes.

    (b) Sedition and waging War against India

    • India has seen many cases of treason, terrorism and seditious activities.
    • It is in fact the most vulnerable state for such crimes.

    Judicial observations related to Death Penalty

    The Supreme Court has always said that the death sentence should be given rarely.

    Judgments against:

    (a) Mithu vs State of Punjab (1983):

    • The Supreme Court ruled that the mandatory death penalty is unconstitutional.
    • It struck down Section 303 in the IPC, which entailed a mandatory death sentence for a person who commits murder while serving a life term in another case.
    • The Supreme Court ruled Section 303 violated Articles 14 (right to equality) and 21 (right to life) since an unreasonable distinction was sought to be made between two classes of murders.

    (b) State of Punjab vs Dalbir Singh (2012):

    • Similarly, the Supreme Court ruled that mandatory death penalty as punishment for crimes under Section 27 (3) of the Arms Act, 1959, was unconstitutional.

    (c) Channulal Verma vs State of Chhattisgarh (2018):

    • In Channulal, the Supreme Court, through Justice Kurian Joseph noted that the time was appropriate to review the constitutionality of the death penalty and take into consideration reformative aspects of punishment

    Judgments in favour:

    • In Jagmohan Singh vs State of UP’ (1973), then in ‘Rajendra Prasad vs State of UP’ (1979), and finally in ‘Bachan Singh vs State of Punjab’ (1980) the Supreme Court affirmed the constitutional validity of the death penalty.
    • It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict.
    • This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows.

    Avenues available to a Death-Row Convict

    • Confirmation by HC: After a trial court awards the death penalty, the sentence must be confirmed by a High Court. The sentence cannot be executed till the time the High Court confirms it, either after deciding the appeal filed by the convict, or until the period allowed for preferring an appeal has expired.
    • Review Petition: If the High Court confirms the death penalty and it is also upheld by the Supreme Court, a convict can file a review petition.
    • Curative Petition: If the review petition is rejected, the convict can file a curative petition for reconsideration of the judgment.
    • Mercy Petition: Under Article 72 of the Indian Constitution, the President shall have the power to grant pardons, reprieves, respites, or remissions of punishments or to suspend, remit or commute the sentence of any convicted person.

    Debate over Death Penalty

    Arguments in favor:

    • Forfeiture of life: Supporters of the death penalty believe that those who commit murder, because they have taken the life of another, have forfeited their own right to life.
    • Moral indignation of the victim: It is a just form of retribution, expressing and reinforcing the moral indignation not only of the victim’s relatives but of law-abiding citizens in general.
    • Highest form of Justice: For heinous crimes such as the Nirbhaya Gangrape Case, no other punishment could have deterred the will of the convicts.
    • Deterrent against crime: Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people.
    • Proportional punishment: The guilty people deserve to be punished in proportion to the severity of their crime.
    • Prevailing lawlessness: The crimes we are now witnessing cannot be addressed by simple punishments. We are seeing horrific attacks on women, young girls, minority communities and Dalits etc.
    • Prevention of crime is non-existent: Despite of stringent regulations, it is certainly visible that some crimes can never be prevented in our society.

    Arguments against:

    • Eye for an eye: Reformative justice is more productive, that innocent people are often killed in the search for retribution, and that “an eye for an eye makes the whole world blind.
    • Deterrence is a myth: Death penalty is not a deterrent to capital crimes state that there is no evidence to support the claim that the penalty is a deterrent.
    • Political tool of suppression: The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents.
    • Reverence for life’ principle: Death penalty is an immoral punishment since humans should not kill other humans, no matter the reasons, because killing is killing.
    • Stigma against killing: With the introduction of lethal injection as execution method, medical professionals participate in executions. Many professionals have now refused to administer such deaths.
    • Skewed justice systems: In many cases recorded by Amnesty International, people were executed after being convicted in grossly unfair trials, on the basis of torture-tainted evidence and with inadequate legal representation.
    • Discriminatory nature: The weight of the death penalty is disproportionally carried by those with less advantaged socio-economic backgrounds or belonging to a racial, ethnic or religious minority.
    • Penalizing the innocents: The risk of executing the innocent precludes the use of the death penalty. Our colonial history has witnessed many such executions.

    Other issues with such executions

    (a) Socio-Economic Factors

    • The recent statistics shows that the death row prisoners in India are more from the backward classes of the society.
    • The death row prisoners belong to backward classes and religious minorities and the majority of convicts’ families are living in adjunct poverty.
    • These people who are backward both in economic and social respects, are not in a position to here expensive lawyers and get proper representation in the Court.

    (b) Delayed Execution

    • The law provides for a long process before the execution of the convicts actually takes place.
    • The unexplained delay in execution can be a ground for commutation of death penalty, and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition seeking such commutation.
    • Their trials are often cruelly forced to endure long periods of uncertainty about their fate.

    Way forward: Law Commission recommendations on death penalty

    The Law Commission of India in its 262nd Report (August 2015) recommended that:

    • Death penalty be abolished for all crimes other than terrorism related offences and waging war.
    • Measures such as police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government.
    • It felt that time has come for India to move towards abolition of the death penalty. However the concern is often raised that abolition of death penalty for terrorism-related offences and waging war, will affect national security.

    Further, the Commission sincerely hopes that the movement towards absolute abolition will be swift and irreversible

     

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  • Regional Benches of Supreme Court

    TN Chief Minister yet again reiterated the State’s request for establishing a Regional Bench of the Supreme Court in Chennai and allowing Tamil to be used in the Madras High Court as one of its official languages.

    Why in news?

    • Outgoing Vice President, M Venkaiah Naidu suggested bifurcation of the Supreme Court into four regional benches for speedy disposal of cases.
    • However, the Supreme Court has maintained on previous occasions that there is no need for such benches outside Delhi.

    Why the Supreme Court is located in New Delhi?

    • Article 130 of the Constitution of India reads- The Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.
    • The law thus provides scope for setting up the Supreme Court in multiple places, subject to the concurrence of the CJI and the President.

    Who can establish the SC benches outside New Delhi?

    • The Supreme Court in Union of India v. S.P. Anand Verdict (2009), held that the Article vests exclusive discretionary powers on the matter with the Chief Justice of India.
    • It is an enabling provision and if the Chief Justice (after taking relevant factors into account) feels that the Court should sit elsewhere, s/he can seek the President’s approval for it.
    • No authority can compel the Chief Justice of India to act in a particular way under the Article.

    Voices for circuit benches

    • The Law Commission in its 229th Report had suggested setting up a Constitution Bench of the Court in New Delhi and four other benches in different regions i.e., Northern region in Delhi, Southern region in Chennai/Hyderabad, Easter region in Kolkata and Western region in Mumbai.
    • However, this idea did not find favour with the Judges of the Supreme Court.

    Reasons for having Regional/Circuit Benches

    • Access to Justice: Many litigants are discouraged to travel to Delhi from far away locations like south or northeast India.
    • Geographical Constraints: A disproportionately high number of cases filed in the Supreme Court originated in High Courts closer to Delhi. Hence coming up with regional benches will remove this constraint.
    • Huge pendency of cases: Increased workload on the Supreme Court and at present more than 65,000 cases are pending in the Supreme Court, and disposal of appeals takes many years.
    • Reducing Cost of Justice: It is observed that besides travelling to New Delhi, engaging expensive Supreme Court counsel to pursue a case is beyond the means of most litigants.

    Advantages of having circuit courts

    • Promotes Article 39A: It has been pointed out that Article 39A says that the state shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity.
    • Remove Geographical Constraints: It is high time we had more benches because in a country as vast as India the litigants have to travel long distances and spend a huge amount of money and energy.
    • Upholding the spirit of the constitution: Setting up Benches outside Delhi would neither impair unity and integrity nor undermine the importance of the Supreme Court.

     

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  • Jurisprudence of Bail in India

    What is Bail?

    • Bail is the conditional release of a defendant with the promise to appear in court when required.
    • The term also means the security that is deposited in order to secure the release of the accused.

    Types of Bail in India

    • Depending upon the sage of the criminal matter, there are commonly three types of bail in India:
    1. Regular bail: A regular bail is generally granted to a person who has been arrested or is in police custody. A bail application can be filed for the regular bail under section 437 and 439 of CrPC.
    2. Interim bail: This type of bail is granted for a short period of time and it is granted before the hearing for the grant of regular bail or anticipatory bail.
    3. Anticipatory bail: Anticipatory bail is granted under section 438 of CrPC either by session court or High Court. An application for the grant of anticipatory bail can be filed by the person who discerns that he may be arrested by the police for a non-bailable offense.

    Conditions for Grant of Bail in Bailable Offences

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

    Conditions for Grant of Bail in Non-Bailable Offences

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

    What is the recent ruling about?

    • The Supreme Court underlined that arrest is a draconian measure that needs to be used sparingly.
    • The ruling is essentially a reiteration of several crucial principles of criminal procedure.

    Why bail needs reform?

    • Huge pendency of undertrials: Referring to the state of jails in the country, where over two-thirds lodged are undertrials,
    • Indiscriminate arrests: Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offense, being charged with offenses punishable for seven years or less.
    • Disadvantageous for some sections: They are not only poor and illiterate but also would include women. Thus, there is a culture of offense being inherited by many of them.
    • Colonial legacy: Theoretically, the court also linked the idea of indiscriminate arrests to magistrates ignoring the rule of “bail, not jail” to a colonial mindset.

    What is the law on bail?

    • The CrPC does not define the word bail but only categories offences under the Indian Penal Code as ‘bailable’ and ‘non-bailable’.
    • The CrPC empowers magistrates to grant bail for bailable offences as a matter of right.
    • This would involve release on furnishing a bail bond, without or without security.

    And what is the UK law?

    • The Bail Act of the United Kingdom, 1976, prescribes the procedure for granting bail.
    • A key feature is that one of the aims of the legislation is “reducing the size of the inmate population”.
    • The law also has provisions for ensuring legal aid for defendants.
    • The Act recognises a “general right” to be granted bail.

    What has the Supreme Court held on reforms?

    The court’s ruling is in the form of guidelines, and it also draws the line on certain procedural issues for the police and judiciary:

    • Separate law on Bail: The court underlined that the CrPC, despite amendments since Independence, largely retains its original structure as drafted by a colonial power over its subjects.
    • Uniform exercise of discretionary powers: It also highlighted that magistrates do not necessarily
    • Avoid indiscriminate arrests: The SC also directed all state governments and Union Territories to facilitate standing orders to comply with the orders and avoid indiscriminate arrests.

     

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  • Lifetime perks for former CJIs, SC Judges

    The Centre amended the Supreme Court Judges Rules the second time in a week to provide chauffeurs (car driver) and domestic help for retired Chief Justices of India and Supreme Court judges for their entire lifetime.

    Perks for Retired CJs

    • Retired CJIs would also get secretarial assistants.
    • The staff would be paid the salary and allowances of regular employees of the Supreme Court.
    • The first series of amendments in the Rules on August 23 had allowed retired Chief Justices of India and Supreme Court judges chauffeurs, secretarial assistants and security cover only for a year.
    • There was no mention of “domestic help”, who would be an employee in the level of junior court assistant.

    What else?

    • The judiciary had recently raised concerns about attacks on judges.
    • Hence the benefit of 24-hour security cover has been extended to five years for retired Chief Justices and three years for retired judges of the Supreme Court.
    • Besides, former CJIs and retired judges of the top court can get their monthly mobile phone and Internet bills reimbursed to the extent of ₹4,200.
    • A retired CJI is also entitled to a rent-free Type VII accommodation, other than the designated official residence, in New Delhi for six months immediately after retirement.

    Why such move?

    • The government is one of the biggest litigants in the Supreme Court.
    • There has been public debate on whether post-retirement benefits dangled by the government could influence the judicial work of serving judges.

     

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