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Subject: Judiciary

  • CJI’s recommendation on ‘Successor’ sought

    Chief Justice of India N.V. Ramana has received a communication from the Union Law Minister seeking his recommendation on the appointment of the next top judge.

    What is the news?

    • Chief Justice Ramana is retiring this month.
    • It is now left to CJI to give the Law Minister his recommendation on his successor.

    How is CJI selected?

    • Justice U.U. Lalit is the senior-most judge in the Supreme Court now.
    • He is in line to be appointed the 49th CJI as per the seniority norm.
    • 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. 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.

    Try this PYQ:

    1. Who/Which of the following is the custodian of the Constitution of India?

    (a) The President of India

    (b) The Prime Minister of India

    (c) The Lok Sabha Secretariat

    (d) The Supreme Court of India

     

    [wpdiscuz-feedback id=”0dci9sxykf” question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

     

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  • Latest guidelines on Arrests and Bail Orders

    On July 11, a division bench of the Supreme Court of India in Satender Kumar Antil vs CBI laid down fresh guidelines on arrests in order to have strict compliance with the provisions of Section 41 and 41A of the Code of Criminal Procedure, 1973.

    Why in news?

    • In recent times, there have been several controversies regarding the arrest and subsequent bail of accused persons.
    • On July 16, even the Chief Justice of India (CJI) cautioned against “hasty and indiscriminate arrests”.
    • He further commented on the delay in bails and the plight of undertrial prisoners.

    What are the guidelines?

    • In the case of Arnesh Kumar (2014), the apex Court had rightly observed that “arrest brings humiliation, curtails freedom and cast scars forever”.
    • With regard to the Satender Kumar Antil case, the Court has issued specific directions and has also called for a compliance report.
    • The Court said that the investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A and the directions issued.

    How is a person arrested?

    • Arrest in its simplest form is defined as, “when one is taken and restrained from his liberty”.
    • The police has wide powers to arrest under the Code of Criminal Procedure, 1973.
    • In the Joginder Kumar (1994) verdict, the Court had stated that “arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person”.

    What are Sections 41 and 41A of the Code of Criminal Procedure?

    • Section 41 provides for the circumstances in which arrest can be made by the police without a warrant and mandates for reasons to be recorded in writing for every arrest and non-arrest.
    • Section 41A provides for the requirement of a notice to be sent by the investigating agencies before making an arrest in certain conditions prescribed by the Code.

    What did the court comment regarding these articles?

    • The Court stated that any dereliction on the part of the agencies has to be brought to the notice of the higher authorities by the court followed by appropriate action.
    • The Bench further said that the courts will have to satisfy themselves on the compliance of Section 41 and 41A.
    • Any non-compliance would entitle the accused for a grant of bail.

    What are the guidelines with respect to bail?

    Regarding bail, the Court has made a specific observation in the form of an obiter that the:

    • GoI may consider the introduction of a separate enactment, i.e. a Bail Act, so as to streamline the grant of bails.
    • It is clearly stated that there need not be any insistence on a bail application while considering the application under Sections 88, 170, 204 and 209 of the Code.
    • The Court said that there needs to be a strict compliance of the mandate laid down in the judgment of this court in Siddharth” (Siddharth vs State of U.P., 2021).
    • It is a clear direction of the Court that bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise — the exception being an intervening application.
    • The Court also said that applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application.
    • The High Courts have been directed by the apex court to identify undertrial prisoners who cannot comply with bail conditions.

    Way forward

    • The State and Central governments will have to comply with the directions issued by the Court from time to time with respect to the constitution of special courts.
    • The High Court in consultation with the State governments will have to undertake an exercise on the need for special courts.
    • The vacancies should be filled up in the position of Presiding Officers of the special courts, expeditiously.
    • The CJI has also raised the issue of vacant positions and infrastructural requirements in the judiciary.

     

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  • Consolidating multiple FIRs

    Context

    The Supreme Court’s (SC) refused to consolidate multiple FIRs filed in several states against former BJP spokesperson.

    When are multiple FIRs clubbed?

    • In 2001, the SC, in TT Antony vs. State of Kerala, made it clear that only the earliest information in regard to the commission of an offence could be investigated and tried.
    • In Babubhai vs. State of Gujarat (2010), the Court explained that the test to determine the sameness of the offence is to identify whether “the subject matter of the FIRs is the same incident, same occurrence or are in regard to incidents which are two or more parts of the same transaction”.
    • the SC extensively relied upon TT Antony while granting similar relief to two journalists.

    Reasons given by the SCs for refusal to club the FIRs

    •  The bench said that party spokespersons and journalists cannot be treated identically.
    • The Constitution creates no hierarchical difference between journalists and ordinary citizens when it comes to the enforcement of fundamental rights.
    • The right to approach the SC under Article 32 is in itself a fundamental right.
    • Nor did the SC craft any distinction on the basis of the status or affiliation of the accused in TT Antony.
    • Second, the bench said that she has not unconditionally apologised for her remarks and her political clout is apparent from the fact that she has not been arrested despite an FIR being filed against her.
    • This view is again misplaced. Whether or not the person has tendered an apology is not germane to the issue at hand.
    • Seeking or tendering an apology may be a mitigating factor while deciding punishment but only after the guilt is proved.

    Why the multiple FIRs should be consolidated

    • Abuse of statutory power of investigation: Filing of successive FIRs amounts to an abuse of statutory power of investigation and is a fit case for the SC to exercise its writ powers under Article 32 because high courts cannot transfer cases from one state to another.
    • Wastage of state resources and judicial time: Prudence demands that state resources and judicial time are not spent on a multiplicity of proceedings.
    • The multiplicity of proceedings would result in violation of fundamental rights under Article 21 as parallel investigations would result in her being forced to join investigations in different police stations in different states.
    • This serves no practical purpose because ultimately it is only one of the police reports that would be tried by a court of law.

    Conclusion

    In the absence of strict guidelines, some degree of caution is necessary on the part of judges to work within the confines of judicial propriety.

     

  • Bail Law and Supreme Court call for Reform

    The Supreme Court underlined the pressing need for reform in the law related to bail and called on the government to consider framing a special legislation on the lines of the law in the United Kingdom.

    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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  • Parliamentary Committee opposes Mediation Bill

    The Parliamentary Standing Committee on Law and Justice has recommended substantial changes to the Mediation Bill.

    Mediation Bill, 2021

    • Mediation is a voluntary dispute resolution process.
    • It is an informal, confidential, flexible, and non-binding process in which an impartial person called a “mediator” helps the parties to understand the interests of everyone involved, and their practical and legal choices.
    • The Bill requires persons to try to settle civil or commercial disputes through mediation before approaching any court or tribunal.
    • Agreements resulting from mediation will be binding and enforceable in the same manner as court judgments.

    Key features of the Bill

    (1) Pre-litigation mediation

    • Parties must attempt to settle civil or commercial disputes by mediation before approaching any court or certain tribunals.
    • Even if they fail to reach a settlement through pre-litigation mediation, the court or tribunal may at any stage refer the parties to mediation if they request for the same.

    (2) Disputes not fit for mediation

    • The Bill contains a list of disputes which are not fit for mediation.
    • These include disputes: (i) relating to claims against minors or persons of unsound mind, (ii) involving criminal prosecution, and (iii) affecting the rights of third parties.
    • The central government may amend this list.
    • It will apply to mediations conducted in India: (i) involving only domestic parties, (ii) involving at least one foreign party and relating to a commercial dispute (i.e., international mediation).

     (3) Mediation process

    • Mediation proceedings will be confidential, and must be completed within 180 days (may be extended by 180 days by the parties).
    • A party may withdraw from mediation after two sessions.
    • Court annexed mediation must be conducted as per the rules framed by the Supreme Court or High Courts.

    (4) Mediators

    • Mediators may be appointed by: (i) the parties by agreement, or (ii) a mediation service provider (an institution administering mediation).
    • They must disclose any conflict of interest that may raise doubts on their independence.
    • Parties may then choose to replace the mediator.

    (5) Mediation Council of India

    • The central government will establish the Mediation Council of India.
    • The Council will consist of a chairperson, two full-time members (with experience in mediation or ADR), three ex-officio members (including the Law Secretary, and the Expenditure Secretary), and a part-time member from an industry body.
    • Functions of the Council include: (i) registration of mediators, and (ii) recognising mediation service providers and mediation institutes (which train, educate, and certify mediators).

    (6) Mediated settlement agreement

    • Agreements resulting from mediation (other than community mediation) will be final, binding, and enforceable in the same manner as court judgments.
    • They may be challenged on grounds of: (i) fraud, (ii) corruption, (iii) impersonation, or (iv) relating to disputes not fit for mediation.

    (7) Community mediation

    • This may be attempted to resolve disputes likely to affect the peace and harmony amongst residents of a locality.
    • It will be conducted by a panel of three mediators (may include persons of standing in the community, and representatives of resident welfare associations).

    Issues highlighted by the Parliamentary Committee

    • Compulsion: The panel cautioned against making compulsory pre-litigation mediation.
    • Scope for Delay: Making pre-litigation mediation mandatory may actually result in delaying of cases.
    • Judicial intervention: The provision to give higher courts the power to frame rules for mediation was also questioned.
    • Narrower scope: The members questioned the non-applicability of the provisions to non-commercial disputes involving the Government and its agencies.
    • No bar of experienced professionals: The MCI, established to regulate the profession of mediators, may not have representation of practising mediators with adequate experience.
    • Prior approval from centre: The MCI requires prior approval from the central government before issuing regulations related to its essential functions.  It is not clear why such prior approval is required.
    • Domestic conduct of mediation: The Bill applies to international mediations only if they are conducted in India and not outside.

    Why need a law on Mediation?

    • Fast: Because the amount of time necessary for the parties and therefore the Mediator to organize for the mediation is significantly way less as that needed for trial or arbitration, a mediation of dispute can occur relatively early.
    • Flexible: There exists no set formula for mediation. Different Mediators employ different styles. Procedures are often modified to satisfy the requirements of a specific case.
    • Cost Efficient: Because mediation generally requires less preparation, is very less formal than trial or arbitration, and may occur at an early stage of the dispute.
    • Brings Parties Together: Parties can save and sometimes rebuild their relationship like during a family dispute or commercial dispute.
    • Convenient: The parties can control the time, location, and duration of the proceedings to large extent. Scheduling isn’t subject to the convenience of courts.
    • Creative: Resolutions that aren’t possible through arbitration or judicial determination could also be achieved.
    • Confidential: What’s said during mediation are often kept confidential. Parties wishing to avoid the glare of publicity can use mediation to stay their disputes low-key and personal
    • Control: The parties control the result of the mediation and either party has the advantage of terminating the mediation, if it’s felt that it’s not within the interest of the said party.

     

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  • Judicial Reforms in India

    Context

    Following are the reforms needed in the various aspects of the higher judiciary

    Removing the disparity between retirement ages of HC and SC judges

    • High Court judges now retire at 62 and Supreme Court judges at 65.
    • It is high time that we did away with the disparity between the retirement ages of High Court and Supreme Court judges.
    • There is no good reason for this difference.
    • Intense pressure and competition: The obvious negative fallout of a differential retirement age simply is intense pressure and competition to make it to the top court and thus get three more years.
    • If this is done away with, several judges of mettle would prefer to be Chief Justices and senior judges in the High Courts exercising wide power of influence rather than being a junior judge on a Bench of the Supreme Court.
    • There is good work to be done in the High Courts, and we need good men there.

    Create a cadre of public service for retired judges

    • SeveralSupreme Court judges focus on arbitrations after retirement.
    • A minority of judges devote themselves to public service; sadly, this is a very small minority.
    • Another lot are appointed to various constitutional posts and tribunals and commissions.
    • It would be worthwhile reform to create a cadre of public service for retired judges and from this pool make appointments to the constitutional and statutory posts and special assignments.
    • Such judges should receive the full pay and the facilities of a judge of the Supreme Court for life.
    • We should have a culture of public service for senior judges, and those who do not fit in such culture should not be a part of senior ranks.

    Reform in the process of appointment of Chief Justice of India

    • No constitutional basis: It is generally assumed that the seniormost judge of the Supreme Court should be the Chief Justice of India.
    • The Constitution mandates no such thing.
    • Article 124 merely states that the President will appoint every judge of the Supreme Court, and this includes the Chief Justice, and each of these judges shall hold office until they attain the age of 65 years.
    • The requirement about appointing the seniormost judge to be the CJI was devised in the Second Judges case (1993) and the consequent Memorandum of Procedure which is an usurpation of the President’s power.
    • There is no good reason why any one particular person should have a vested interest in the top job, and we are better served by eliminating such expectation.
    • Let all serve equally under the constitutional throne for the entire length of their tenure.

    But who then shall be the CJI?

    • As per the Constitution the judges of the High Court, senior advocates and distinguished jurists are eligible for the appointment as the judge of the Supreme Court.
    • Chief Justice of HC: When a serving CJI retires, his successor should be the best reputed Chief Justice of a High Court who has proved himself worthy both in judicial office as well as administrative leadership and has those qualities of heart and head which mark a good leader.
    • The same process is followed in the appointment of the Chief Justice of the United States Supreme Court.
    • Security of tenure: The appointee should have a clear three-year term.
    • He should not function as the primus super pares — calling the shots and having their unfettered way.
    • He should instead function in a true collegiate manner, especially in regard to the roster of allotment of cases, especially the sensitive ones, and appointments to the Supreme Court and High Courts and other important matters of judicial and administrative importance.

    Conclusion

    Though there are several issues that need reforms in the higher judiciary, the above reforms can serve as the precursor to the other reforms to come.

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  • Procedural gaps in death penalty sentencing

    Context

    In a judgment delivered last month, the Supreme Court, in Manoj & others v. State of MP, embarked on a significant attempt to reform the administration of the death penalty.

    Background: Crisis in the death penalty sentencing

    • There has long been a judicial crisis in death penalty sentencing on account of unprincipled sentencing, arbitrariness and worrying levels of subjectivity.
    • The crisis has been acknowledged by the Supreme Court, the Law Commission of India, research scholars and civil society groups.
    • Crime-centric nature: Death penalty sentencing has been, by and large, crime-centric.
    • This approach goes against the requirements imposed on sentencing judges by the Supreme Court in Bachan Singh (1980).

    The framework laid down in the Bachan Singh case

    • Take into account factors relating to crime and the accused: This framework made it binding for the sentencing judges to take into account factors relating to both the crime and accused and assign them appropriate weight.
    • Judges couldn’t decide to impose the death penalty only on the basis of the crime.
    • The background of the accused, the personal circumstances, mental health and age were considerations a sentencing judge had to account for.
    • Judges were required to weigh “mitigating” and “aggravating” factors to ascertain if a case was fit for the death sentence and also determine if the option of life imprisonment was “unquestionably foreclosed”.

    Why there is a crisis in death penalty sentencing?

    • The four decades since Bachan Singh have shown us that this framework has been followed more in breach.
    • There is utter confusion across all levels of the judiciary on the requirements of the framework laid down in the Bachan Singh case and its implementation.
    • Nature of crime a dominant consideration: An important reason for the breakdown is that factors relating to the crime — the nature of the crime and its brutality — are often dominant considerations, and there is barely any consideration of mitigating factors.
    • Little discussion on mitigating factors: There has been very little discussion on bringing the socioeconomic profile of death row prisoners as a mitigating factor into the courtroom.

    Significance of the SC judgment in Manoj & others v. State of MP

    • Efforts to plug the gap: The judgement identifies the lacuna as an explicit concern, states the consequences that flow from such a vital gap, and suggests measures to plug it.
    • Recognising reformation: A striking part of the judgment is its commitment to recognising reformation as integral to the Indian criminal justice system, especially death penalty sentencing.
    • Procedural threshold: The judgment is clear that certain procedural thresholds must be met for sentencing to be fair and explicitly rejects (once again) the idea that death sentences can be determined solely on crime-based considerations.
    • The verdict recognises that aspects of the accused’s life, both pre-offence and post-offence in prison, are relevant.
    • As practical steps in this process, the judgment asks courts to call for reports from the probation officer as well as prison and independent mental health experts.
    • Right of the accused to present mitigating factors: The right of the accused to present mitigating factors and rebut the state, if necessary, is also recognised.
    • Psychological and philosophical aspect taken into account: There is now overwhelming evidence from psychology that criminality cannot just be reduced to terrible decisions by individuals in the exercise of their free will.
    • All our actions are a result of a complex web of biological, psychological, and social factors and that understanding has a very significant bearing on discussions on criminality and punishment.

    Challenges

    • Implementation issue: Apart from this issue of implementation, even if detailed and high-quality sentencing information is to come into our courtrooms, a bigger challenge awaits.
    • The judicial treatment of sentencing information is a Pandora’s box that will inevitably have to be opened.
    • Requirement for normative basis: The Supreme Court will have to provide a rigorous normative basis for consideration of these factors.
    • In the absence of such foundations, death penalty sentencing will continue to be unprincipled and sentencing judges are not going to understand the need for this wide range of sentencing information.

    Conclusion

    The significance of last month’s judgment, authored by Justice Ravindra Bhat, is that it takes this problem head-on. It identifies the lacuna as an explicit concern, states the consequences that flow from such a vital gap, and suggests measures to plug it.

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  • New norms for Sentence Remission

    The Union Home Ministry issued a set of guidelines to the States and the Union Territories on the grant of special remission to prisoners to commemorate the 75th year of Independence.

    What is the news?

    • The decision comes as part of the Azadi Ka Amrit Mahotsav celebrations.
    • The special remission would be granted to a certain category of prisoners, and they would be released in three phases.

    What is Remission?

    • The suspension is the stay or postponement of the execution of the sentence.
    • In remission, the duration of the sentence is reduced, without changing the nature of the sentence.
    • In remission, the nature of the sentence is remained untouched, while the duration is reduced i.e. the rest of the sentence need not be undergone.
    • The effect of the remission is that the prisoner is given a certain date on which he shall be released and the eyes of the law he would be a free man.
    • However, in case of breach of any of the condition of remission, it will be cancelled and the offender has to serve the entire term for which he was originally sentenced.

    Constitutional provisions for Remission

    • ‘Prisons’ is a State subject under the State List of the Seventh Schedule of the Constitution.
    • Indian laws provide pardoning power sourcing from statuary and constitutional authorities.
    • By virtue of Article 72 and 161 of the Constitution of India, the President and Governor can grant pardon, to suspend, remit or commute a sentences passed by the courts.

    What are the new norms?

    The prisoners who would qualify for premature release under the scheme are:

    • Women and transgender convicts of ages 50 and above
    • Male convicts of 60 and above who have completed 50% of their total sentence period without counting the period of general remission earned
    • Physically challenged or disabled convicts with 70% disability and more who have completed 50% of their total sentence period
    • Terminally ill convicts
    • Convicted prisoners who have completed two-thirds (66%) of their total sentence
    • Poor or indigent prisoners who have completed their sentence but are still in jail due to non-payment of fine imposed on them by waiving off the fine
    • Persons who committed an offence at a young age (18-21) and with no other criminal involvement or case against them and who have completed 50% of their sentence period would also be eligible for the remission

    Exceptions to these norms

    Following persons would not be eligible for the grant of special remission:

    • Persons convicted with death sentence or where death sentence has been commuted to life imprisonment or persons convicted for an offence for which punishment of death has been specified as one of the punishments
    • Persons convicted with sentence of life imprisonment
    • Convicts involved in terrorist activities or persons convicted under the Terrorist and Disruptive (Prevention) Act, 1985, Prevention of Terrorist Act, 2002, Unlawful Activities (Prevention) Act, 1967, Explosives Act, 1908, National Security Act, 1982, Official Secrets Act, 1923, and Anti-Hijacking Act, 2016

    Back2Basics: Pardoning powers in India

    • Under the Constitution of India (Article 72), the President of India can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment.
    • A similar and parallel power vests in the governors of each state under Article 161.
    1. President
    1. Article 72 says that the president shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.
    2. The pardoning powers of the Indian President are elucidated in Art 72 of the Indian Constitution. There are five different types of pardoning which are mandated by law.
    • Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
    • Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
    • Reprieve: means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
    • Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
    • Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty-year rigorous imprisonment to ten years.

    Cases as specified by art. 72

    • in all cases where the punishment or sentence is by a court-martial;
    • in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
    • in all cases where the sentence is a sentence of death.
    1. Governor
    • Similarly, as per article 161: Governor of a State has the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law.
    • It must be relating to a matter to which the executive power of the state extends.
    • Please note that President can grant pardon to a person awarded death sentence. But a governor of a state does not enjoy this power.

    Nature of the Pardoning Power

    • The question is whether this power to grant pardon is absolute or this power of pardon shall be exercised by the President on the advice of Council of Ministers.
    • The pardoning power of the president is not absolute. It is governed by the advice of the Council of Ministers.
    • This has not been discussed by the constitution but is the practical truth.
    • Further, the constitution does not provide for any mechanism to question the legality of decisions of President or governors exercising mercy jurisdiction.
    • But the SC in Epuru Sudhakar case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.
    • The court has earlier held that court has retained the power of judicial review even on a matter which has been vested by the Constitution solely in the Executive.

     

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  • Issues with Frivolous PIL Petitions

    A Public Interest Litigation (PIL) petitioner in the Supreme Court barely escaped having to pay â‚č18 lakh for indulging in a “luxury litigation”.

    What is the news?

    • A Supreme Court Bench of Justice B.R. Gavai and Hima Kohli initially asked the litigant to pay â‚č18 lakh, that is, â‚č1 lakh for every one of the 18 minutes the case took up.
    • However, the court later, in its order, slashed the amount to â‚č2 lakh on the request of the litigant’s counsel.

    Why did the apex court got disgusted?

    • The bench criticized the highly derogatory practice of filing frivolous petitions encroaching valuable judicial time.
    • This time can otherwise be utilised for addressing genuine concerns.

    What is Public Interest Litigation (PIL)?

    • PIL refers to litigation undertaken to secure public interest and demonstrates the availability of justice to socially-disadvantaged parties.
    • It was introduced by Justice P. N. Bhagwati in 1979.
    • It is the chief instrument through which judicial activism has flourished in India.
    • It is suited to the principles enshrined in Article 39A[a] of the Constitution to protect and deliver prompt social justice with the help of law.

    How was it introduced?

    • PIL is a relaxation on the traditional rule of locus standi.
    • Before 1980s the judiciary and the Supreme Court of India entertained litigation only from parties affected directly or indirectly by the defendant.
    • It heard and decided cases only under its original and appellate jurisdictions.
    • However, the Supreme Court began permitting cases on the grounds of PIL, which means that even people who are not directly involved in the case may bring matters of public interest to the court.
    • It is the court’s privilege to entertain the application for the PIL.

    Filing a PIL

    Any citizen can file a public case by filing a petition:

    • Under Art 32 of the Indian Constitution, in the Supreme Court
    • Under Art 226 of the Indian Constitution, in the High Court
    • Under 133 of the Criminal Procedure Code, in a Magistrate’s Court

    Parties against whom PILs can be filed

    • A PIL may be filed against state government, central government, municipal authority, private party.
    • Also, private person may be included in PIL as ‘Respondent’, after concerned of state authority.
    • g. a private factory in Mumbai which is causing pollution then PIL can be filed against the government of Mumbai, state pollution central board including that private factory of Mumbai.

    Importance of PIL

    • PIL gives a wider description to the fundamental rights to equality, life and personality, which is guaranteed under part III of the Constitution of India.
    • It also functions as an effective instrument for changes in the society or social welfare.
    • Through PIL, any public or person can seek remedy on behalf of the oppressed class by introducing a PIL.

    Issues with PIL

    • Off late, PILs have become a tool for publicity.
    • People file frivolous petitions which result in the wastage of time of the courts.
    • People have used them with a political agenda as well.
    • They unnecessarily burden the judiciary.
    • Even if the petition is eventually dismissed, the courts spend time and effort on them before dismissing them.

    How do frivolous petitions waste time?

    • At present, only judges have the power to dismiss a petition.
    • The Registry of the SC or HC only ensures that the technical requirements of filing a petition are fulfilled.
    • As a result of which petitions are admitted to the court irrespective of the merits of the case.

    Way forward: Preventing frivolous PILs

    The Supreme Court had issued eight directions in its Balwant Singh Chaufal Judgment to help constitutional courts separate genuine PIL petitions from the barmy ones:

    • It had asked every High Court to frame its own rules to encourage bona fide PIL petitions and curb the motivated ones
    • Verifying the credentials of the petitioner before entertaining the plea
    • Checking the correctness of the contents
    • Ensuring the petition involves issues of “larger public interest, gravity and urgency” which requires priority
    • Ensuring there is no personal gain, or oblique motive behind the PIL
    • Ensuring that it is aimed at redressal of genuine public harm or public injury

    Conclusion

    • PIL petitions have had a beneficial effect on the Indian jurisprudence and has alleviated the conditions of the citizens in general.
    • Such petitions bring justice to people who are handicapped by ignorance, indigence, illiteracy.

     

     

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  • A judicial course that calls for introspection

    Context

    The recent decision of the Supreme Court of India in the case of A.G. Perarivalan has stirred up a hornet’s nest.

    Use of Article 142 to grant pardon

    • The Court has treaded the extraordinary constitutional route under Article 142.
    • The Bench decided to exercise the power of grant of pardon, remission et al., exclusively conferred on the President of India and State Governors under Articles 72 and 161.
    • Against the separation of power: Against the background of separation of powers viz. Parliament/Legislature, Executive and Judiciary, whether the course adopted by the Bench to do expedient justice is constitutional calls for introspection.

    Evaluating the constitutionality of decision

    • The power under Article 161 is exercisable in relation to matters to which the executive power of the state extends.
    • Discretionary power under Article 161: Article 161 consciously provides a ‘discretion’ to the Governor in taking a final call, even if it was not wide enough to overrule the advice, but it certainly provides latitude to send back any resolution for reconsideration, if, in his opinion, the resolution conflicted with constitutional ends.
    • In Sriharan’s case (2016 (7) SCC P.1), one of the references placed for consideration was whether the term ‘consultation’ stipulated in Section 435 Cr.P.C. implies ‘concurrence’.
    • It was held that the word ‘consultation’ means ‘concurrence’ of the Central government.
    • The Constitution Bench highlighted that there are situations where consideration of remission would have trans-border ramifications and wherever a central agency was involved, the opinion of the Central government must prevail.
    • Basing its conclusion on the legal position that the subject matter (Section 302 in the Indian Penal Code) murder, falls within Lists II and III (State and Concurrent lists) of the Seventh Schedule to the Constitution, the learned judges concluded that the State was fully empowered to take a call and recommend remission in this case.
    • If it is a simple case of being a Section 302 crime, the reason for finding fault with the Governor’s decision to forward the recommendation to the President may be constitutionally correct.
    • But the larger controversy as to whether the Governor in his exercise of power under Article 161 is competent at all, to grant pardon or remission in respect of the offences committed by the convicts under the Arms Act, 1959, the Explosive Substances Act, 1908, the Passports Act, 1967, the Foreigners Act, 1946, etc., besides Section 302, is not certain.
    • According to the decision, it is a simple murder attracting Section 302 of the IPC and therefore the Governor’s decision to forward the recommendation to the President is against the letter and spirit of Article 161 — meaning it is against the spirit of federalism envisaged in the Constitution.
    • Constitutionality use of Article 142: There are momentous issues that are flagged on the exercise of the power of remission under Article 142, by the Supreme Court in the present factual context.
    • The first is whether Article 142 could be invoked by the Court in the circumstances of the case when the Constitution conferred express power on the Governor alone, for grant of pardon, remission, etc., under Article 161.

    Way forward

    • Deeper judicial examination: Whether what the State government could not achieve directly by invoking Sections 432 and 433 of Cr.P.C, without concurrence of Centre could be allowed to take a contrived route vide Article 161 and achieve its objectives is a pertinent issue.
    • This aspect requires deeper judicial examination for the sake of constitutional clarity.
    • Timeframe for the Governor: The Constitution does not lay down any timeframe for the Governor to act on the advice of the Council of Ministers.
    • In any event, even if the delay was constitutionally inexcusable or was vulnerable to challenge, the final arbiter of the Constitution (Article 245) could not have trumped Article 161 with Article 142, which is constitutionally jarring.

    Conclusion

    To portray the remission as to what it was not in the State is a sad fallout the lawlords on the pulpit may not have bargained for. And on the constitutional plane, this verdict deserves a relook, even a review, as it stands on wobbly foundations built with creaky credence.

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