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Subject: Judiciary

  • 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 ₹18 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 ₹18 lakh, that is, ₹1 lakh for every one of the 18 minutes the case took up.
    • However, the court later, in its order, slashed the amount to ₹2 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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  • The sedition law must go

    Context

    By order dated May 11, 2022, a Bench presided over by the Chief Justice of India, has directed that the petitions challenging the Section 124A be listed for final determination in the third week of July 2022; and that in the meantime suspend the use of Section 124A IPC.

    Historical background of Section 124A

    • With effect from 1870, (as amended in 1955), Section 124A of the Penal Code read:

    “Whoever by words, spoken or written, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection, towards the Government established by law in India shall be punished with imprisonment for life…”.

    • “Sedition” is the vaguest of all offences known to the criminal law.
    •  In colonial times, it was defined expansively in order to uphold the majesty of British power in India.
    • Before 1950, there were several Court decisions in operation on Section 124A; amongst them was Bal Gangadhar Tilak’s case (1897).
    • Absence of affection: In Bal Gangadhar Tilak’s case the Privy Council declined to grant leave to appeal, affirming that “disaffection” only meant “absence of affection in any degree towards the British rule or its administration or representatives”, and that exciting of mutiny or rebellion or actual disturbance of any sort was “absolutely immaterial”.
    • With the establishment of a Federal Court by the Government of India Act, 1935, in Niharendu Dutt Majumdar And Ors. vs Emperor the Federal Court held that if the language of Section 124A were to be read literally “it would make a surprising number of persons in India guilty of sedition and that no one, however, supposes that it is to be read in this literal sense”
    • However, in 1947 it was precisely in this literal sense that the interpretation of Section 124A was reiterated by a Bench of five judges of the Privy Council (AIR 1947 P.C. 82) in which it was declared that: “If the Federal Court had given their attention to Tilak’s case (1897) they should have recognised it as an authority… by which they were bound”.
    • With the advent of the Constitution of India on January 26, 1950, this interpretation of Section 124A became “the law in force immediately before the commencement of the Constitution”.

    Section 124A after 1950

    • Article 372: It stated that all laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority.
    • Protected due to Article 19(2): In 1962, in criminal appeals arising from the states of Bihar and Uttar Pradesh, a Constitution Bench of the Supreme Court held that though Section 124A “clearly violated” the fundamental right to freedom of speech and expression in Article 19(1)(a), it was not unconstitutional only because it was protected from challenge by the words “in the interests of public order” in Article 19(2).

    Conclusion

    This background has now become pertinent and relevant, because in a fresh batch of writ petitions filed in 2021, the constitutionality of Section 124A (IPC) has been once again challenged in the Supreme Court.

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  • Digitization of Judiciary

    Context

    The Indian judiciary has increasingly started using technology and the change is reflected in the legal profession in general as well.

    Increasing use of digital technology in the judiciary

    • With the digitisation of judicial records and the establishment of e-courts, significant developments had taken place in 2020.
    • Use of technology to better utilise potential: It is imperative that the use of digital technology be discussed to better utilise its potential, particularly in terms of digitisation of court records, e-filing of cases and their virtual hearing, live streaming of court proceedings.

    Background

    • In India, e-governance in the field of administration of justice began in the late 1990s, but it accelerated after the enactment of the Information and Technology Act, 2000.
    • In the year of 2006, e-courts were launched as a part of the National e-Governance Plan (NEGP).

    Digitisation of case files

    • When he was the Chief Justice of Allahabad HC, Justice D Y Chandrachud had conceptualised and initiated the project to digitise approximately one crore case files in one year.
    • Saving of space and preservation of old documents: This was necessary as not only was a large space required to store so many files, it was also becoming difficult to manually preserve the decades-old documents.
    • Traceability: Another purpose was to ensure that these files are traceable electronically as and when required.
    • It has also been observed that cases are adjourned simply because affidavits filed several years ago were not restored with the record or were not traceable.
    • Once the documents are digitised and e-filed by counsels, at least the cases would not get adjourned by the courts on this account.
    • Reducing the risk of missing court records: In State of Uttar Pradesh v. Abhay Raj Singh, it was held by the Supreme Court that if court records go missing and re-construction is not possible, the courts are bound to set aside the conviction.
    • Saving of time: With digitisation, it will take much less time for the lower courts to transmit the records as and when called for.
    • The lawyers benefit because they or their staff are no longer required to visit the reporting sections or other sections of the court to know about the status of their cases.
    • This has been sought to be implemented by the e-Committee of the Supreme Court by issuing directions to ensure that e-filing of cases/petitions by state governments in all matters be made mandatory from January 1, 2022.

    Scope for virtual hearing in certain cases

    • Cases related to matrimonial issues and domestic violence bounced cheques, motor accident compensation referred to mediation centres and lok adalats could be included in the list of cases fit for disposal through the virtual hearing.
    • The hearing of matrimonial cases through video-conferencing was approved by the Supreme Court in the matter of Krishna Veni Nagam v Harish Nagam (2017).
    • The direction was short-lived and a coordinate bench of the Supreme Court in the case of Santhini v Vijaya Venkatesh (2018) referred the matter for reconsideration before a larger bench.
    • Virtual hearings cannot be a substitute for physical court hearings in all cases.
    • However, in appropriate cases and certain categories of cases as identified by the court administration in consultation with the members of the Bar, virtual hearing should be made mandatory.

    Live streaming of cases

    • In 2018, the Supreme Court allowed the live-streaming of cases of constitutional and national importance on the basis of the judgment in Swapnil Tripathi.
    • Step towards transparency: The livestreaming of court proceedings is a step towards ensuring transparency and openness.
    • While several reservations were expressed against it, the Gujarat HC in July 2021 became the first court in the country to livestream its proceedings.
    • Its example was followed by other HCs like Karnataka, Odisha, Madhya Pradesh and Patna.

    Challenges

    • 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.
    • Political will and the support of judges and lawyers are also necessary.
    • 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.

    Conclusion

    Adoption of technology will bring drastic changes in the field of law and will transform the Court system.

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  • Criminal justice system

    Context

    The key to an improved criminal justice system is quality forensic labs and well-trained staff, not more legislation and harsher punishments.

    About forensic science

    • Forensic science is the application of scientific perspectives and techniques to the legal process, including investigations and courtroom protocol.
    • It is the use of scientific data and procedures specifically for the legal system.
    • There is rigorous procedure involved, including controlled conditions, reliable data collection and the attempt to disprove hypotheses.
    • Methodologies like the autopsy procedures, fingerprinting, testing and matching for poisons, blood spatter analysis, matching guns to bullets fired (ballistics), voice sample matches, handwriting assessments and DNA analysis are all facets of forensic science.

     Inadequate state forensic facilities

    • We have a woefully inadequate number of forensic science laboratories (FSL).
    • There are seven central forensic laboratories in India at Hyderabad, Kolkata, Chandigarh, New Delhi, Guwahati, Bhopal and Pune.
    • Six of these laboratories, barring Delhi, are under the control of the Directorate of Forensic Science Services (DFSS), and its mission is to render high quality and credible forensic services to the justice delivery system.
    • A National Forensic Sciences University was established in Gandhinagar, Gujarat in 2020.
    • The existing National Institute of Criminology and Forensic Science in Delhi has been integrated into this new university.
    • There are 32 state FSLs and about 529 mobile FSL units, of which Delhi has one state FSL and six mobile units.
    • The DNA tests discovered in 1985 are used to identify individuals involved in alleged crimes.
    • In 2017, The Hindu reported that while the United Kingdom completes DNA testing on over 60,000 crimes annually, India with over 13 times the population completes such tests on less than 7,500 cases.
    • The average pendency at each lab is huge.
    • In all states, there were over 50 per cent vacancies in personnel at their facilities.

    Way forward

    • More investment: We certainly need more investment in the establishment of FSL laboratories, the training and appointment of personnel adept at forensic methodologies and reforms within our police to establish a trained and skilled detective cadre tasked with solving complex and heinous crimes.
    • Quality training and accreditation: There is a desperate need for good quality training facilities, standards of accreditation and continuous education programmes for our forensic experts.

    Conclusion

    It is not more legislation and harsher punishments that will solve crimes, but well-trained forensic staff plying their craft in good quality laboratories that will aid our criminal justice system.

  • Why transfer of case to district judge by Supreme Court sends the wrong signal

    Context

    The Supreme Court order of May 20, transferring the suit on the Gyanvapi Masjid dispute from the civil judge (senior division) Varanasi to the district judge casts aspersion, though unintended, on the competence of civil judges in general.

    Background

    • The matter had reached the Supreme Court on a petition filed by the Mosque Management Committee, which challenged the civil judge’s orders.
    • The order permitted inspection, survey, and videography of the mosque’s complex to collect evidence about the alleged existence of idols of Hindu deities inside the mosque, which is adjacent to the Kashi Vishwanath Temple.
    • The Mosque Management Committee had filed an application before the civil judge seeking the rejection of the plaint on the ground that it was barred by the Places of Worship (Special Provisions) Act, 1991.
    • Places of Worship (Special Provisions) Act, 1991 prohibits individuals and groups of people from converting, in full or in part, a place of worship of any religious denomination into a place of worship of a different religious denomination, or even a different segment of the same religious denomination.
    • It was argued before the SC that given the said Act, the suit was liable to be rejected at the threshold as the civil judge had no jurisdiction to entertain the same, much less to pass the aforesaid interim orders.
    • The SC has not found any fault with the order of the civil judge, though there is also a view that it was mandatory on the part of the civil judge to have first passed an order on whether he had the jurisdiction to entertain the suit.
    • However, it appears that in the SC’s view, this was not a serious infraction.
    • So, in a way, the SC has affirmed the orders of the civil judge.
    • The civil court had territorial and pecuniary jurisdiction to deal with the matter.
    • The question that arises is: Why has the Supreme Court transferred the matter to the court of the district judge?

    Issues with the SC transferring the case to the district judge

    • The SC has seemingly declared civil judges to be not competent to decide a matter alleged to be complex.
    • When the Civil Procedure Code, the High Court Rules and Orders invest a civil judge with jurisdiction, why take it away merely on the plea that the matter is complex?
    • Unhealthy precedent: Fransfer of the case to the district judge has set an unhealthy precedent and will have a demoralising effect on the subordinate judiciary.
    • In the recent past, many lower-level judicial officers have passed outstanding orders in matters concerning the liberties of the citizens, which are under threat as never before.
    • The subordinate judiciary provides the foundation of our judicial system.

    Conclusion

    Supreme Court order inadvertently casts aspersions on competence of subordinate judiciary. District court should not be weighed down by SC observation.

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