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Subject: Judiciary

  • A new track for capital punishment jurisprudence

    Context

    A recent trend in the evolution of jurisprudence around the death penalty in India may reset judicial thinking around sentencing and have long-term ramifications in the awarding of capital punishment.

    New thinking in the jurisprudence around capital punishment

    • Capital punishment once delivered by the court of sessions (“sentencing court”) is required under law, specifically Chapter 28 of the Code of Criminal Procedure, to be confirmed by the jurisdictional High Court (“confirming court”).
    • Over the last six months or so, while dealing with appeals against confirmation of the death sentence, the Supreme Court of India has examined sentencing methodology from the perspective of mitigating circumstances more closely.
    • The Court has also initiated a suo motu writ petition (criminal) to delve deep into these issues on key aspects surrounding our understanding of death penalty sentencing.
    • Bachan Singh vs State of Punjab (1980), the leading case on this point, calls for mitigating and aggravating circumstances to be balanced against each other and laid down the principle that the death penalty ought not to be awarded unless the alternative of life imprisonment is “unquestionably foreclosed”.
    • It is also an equally well-established legal principle that in a sentencing hearing, the accused must necessarily be provided with sufficient opportunity to produce any material that may have bearing on the sentencing exercise.
    • When read in conjunction with the ratio decidendi of the Bachan Singh case, it is incumbent upon the sentencing court and the confirming court to ensure that the question of reform and rehabilitation of a convicted person has been examined in detail for these courts to come to a definitive conclusion that all such options are unquestionably foreclosed.

    Lack of judicial uniformity

    •  A report by the National Law University Delhi’s Project 39A (earlier known as the “Centre on the Death Penalty”) titled ‘Matters of Judgment’ found that there is no judicial uniformity or consistency when it comes to awarding the death sentence.
    •  In the report titled ‘Death Penalty Sentencing in Trial Courts’ (also authored by Project 39A), findings reported from a study of cases involving death sentencing between 2000 and 2015 in Delhi, Maharashtra and Madhya Pradesh have showed that courts have been lax in assessing the aspect of reformation while undertaking the sentencing exercise.
    • The Court, in Mofil Khan vs State of Jharkhand (2021), held that the “the State is under a duty to procure evidence to establish that there is no possibility of reformation and rehabilitation of the accused.
    • Undoubtedly, the onus has been placed on the State to lead evidence to show that no reformation is possible and for the sentencing courts to be satisfied that a thorough mitigation analysis was done before the death sentence is awarded.

    Mitigation investigation

    • For a complete mitigation investigation, professionals trained in psychology, sociology and criminology are required in addition to legal professionals.
    • Taking cognisance of the value of a holistic approach to mitigation investigation, the Court in Manoj & Ors vs State of Madhya Pradesh (2022) issued directions to the State to place before the court all “report(s) of all the probation officer(s)” relating to the accused and reports “about their conduct and nature of the work done by them” while in prison.
    •  The order also directs that a trained psychiatrist and a local professor of psychology conduct a psychiatric and psychological evaluation of the convict.

    Conclusion

    The intervention of the Supreme Court of India in, hopefully, framing guidelines around incorporation of a mitigation analysis and consideration of psycho-social reports of the prisoner at the time of sentencing is timely and necessary.

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  • Governments ignoring court orders: CJI

    The CJI pointed to how courts had to deal with the new problem of “contempt petitions” triggered by the “deliberate inaction” of governments that chose to ignore judgments and orders.

    What did the CJI say?

    • The contempt petitions are a new category of burden on the courts, which is a direct result of the defiance by the governments.
    • Such actions show sheer defiance of governments towards judicial pronouncements.
    • There is visible inclination to pass off the responsibility of decision-making to courts.
    • The legislature’s work show ambiguity, lack of foresight and public consultation before making laws have led to docket explosion.

    What is Contempt of the Court?

    • Contempt of court is the offense of being disobedient to or disrespectful toward a court of law and its officers in the form of behaviour that opposes or defies the authority, justice, and dignity of the court.
    • There are broadly two categories of contempt: being disrespectful to legal authorities in the courtroom, or wilfully failing to obey a court order.

    How did the concept came into being?

    • The concept of contempt of court is several centuries old.
    • In England, it is a common law principle that seeks to protect the judicial power of the king, initially exercised by him, and later by a panel of judges who acted in his name.
    • Violation of the judges’ orders was considered an affront to the king himself.
    • Over time, any kind of disobedience to judges, or obstruction of the implementation of their directives, or comments and actions that showed disrespect towards them came to be punishable.

    What is the statutory basis for contempt of court?

    • There were pre-Independence laws of contempt in India. Besides the early High Courts, the courts of some princely states also had such laws.
    • When the Constitution was adopted, contempt of court was made one of the restrictions on freedom of speech and expression.
    • Separately, Article 129 of the Constitution conferred on the Supreme Court the power to punish contempt of itself.
    • Article 215 conferred a corresponding power on the High Courts.
    • The Contempt of Courts Act, 1971, gives statutory backing to the idea.

    What are the kinds of contempt of court?

    The law codifying contempt classifies it as civil and criminal.

    • Civil contempt is fairly simple. It is committed when someone wilfully disobeys a court order or wilfully breaches an undertaking given to the court.
    • However, Criminal contempt is more complex.
    • It consists of three forms: (a) words, written or spoken, signs and actions that “scandalise” or “tend to scandalise” or “lower” or “tends to lower” the authority of any court (b) prejudices or interferes with any judicial proceeding and (c) interferes with or obstructs the administration of justice.
    • The rationale for this provision is that courts must be protected from tendentious attacks that lower its authority, defame its public image and make the public lose faith in its impartiality.
    • The punishment for contempt of court is simple imprisonment for a term up to six months and/or a fine of up to ₹. 2,000.

    What does not account to contempt?

    • Fair and accurate reporting of judicial proceedings will not amount to contempt of court.
    • Nor is any fair criticism on the merits of a judicial order after a case is heard and disposed of.

    Is truth a defence against a contempt charge?

    • For many years, the truth was seldom considered a defence against a charge of contempt.
    • There was an impression that the judiciary tended to hide any misconduct among its individual members in the name of protecting the image of the institution.
    • The Act was amended in 2006 to introduce truth as a valid defence if it was in the public interest and was invoked in a bonafide.

     

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  • What is Collegium System?

    What is Collegium System?

    • The Collegium of judges is the Indian Supreme Court’s invention.
    • It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
    • In effect, it is a system under which judges are appointed by an institution comprising judges.
    • After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.
    • Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.

    Evolution: The Judges Cases

    • First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
    • However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
    • Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
    • It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
    • Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

    The procedure followed by the Collegium

    Appointment of CJI

    • The President of India appoints the CJI and the other SC judges.
    • As far as the CJI is concerned, the outgoing CJI recommends his successor.
    • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
    • The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.

    Other SC Judges

    • For other judges of the top court, the proposal is initiated by the CJI.
    • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
    • The consultees must record their opinions in writing and it should form part of the file.
    • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

    For High Courts

    • The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
    • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
    • The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
    • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

    Does the Collegium recommend transfers too?

    • Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
    • Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
    • When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
    • In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
    • However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
    • All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.

    Loopholes in the Collegium system

    • Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
    • Judges appointing Judge: The attempt made to replace it with a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
    • Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge.

    Way ahead

    • In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
    • The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
    • Even the majority of opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.

     

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  • Retirement spree in SC may affect efforts to scale down pendency

    The retirements in the topmost rung of the judiciary in 2022 will encompass changes in the powerful Supreme Court Collegium and see two new Chief Justices in a span of months.

    Why in news?

    • The retirements come at a time when the court is in the process of steadying itself after particularly brutal waves of the pandemic.

    Pendency in Supreme Court

    • The Supreme Court’s statistics show that 70,362 cases are pending with it as on April 1, 2022.
    • Over 19% of them are not ready to be placed before a Bench for judicial hearing as they have not completed the required preliminaries.
    • While 52,110 are admission matters, 18,522 are regular hearing cases.
    • The number of Constitution Bench cases (both main and connected matters) totals 422.

    General scenario: Pendency of Cases

    • India’s legal system has the largest backlog of pending cases in the world – as many as 30 million pending cases.
    • This number is continuously increasing and this itself shows the inadequacy of the legal system.
    • And also due to this backlog, most of the prisoners in India’s prisons are detainees awaiting trial.

    Factors leading to under-performance of Indian Judiciary

    • The issue of heavy arrears pending in the various courts of the country has been a matter of concern since the time of independence.
    • The primary factors contributing to docket explosion and arrears as highlighted by Justice Malimath Committee report are as follows:
    1. Population explosion
    2. Litigation explosion
    3. Hasty and imperfect drafting of legislation
    4. Plurality and accumulation of appeals (Multiple appeals for the same issue)
    5. Inadequacy of judge strength
    6. Failure to provide adequate forums of appeal against quasi-judicial orders
    7. Lack of priority for disposal of old cases (due to the improper constitution of benches)
    8. Issue of appointment in Quasi-Judicial Bodies

    Way ahead

    • For pendency, time limits should be prescribed for all cases based on priorities.
    • So setting time standards is essential and it will vary for different cases, and also for different courts depending on their disposal capacity.
    • Alternative disputes resolution (ADR) mechanisms should be promoted for out-of-court settlements.

     

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  • Idea that judges appoint judges is wrong: CJI

    The impression that “judges appoint judges” in India is wrong. It is the government which “finally appoints the judges in the name of the President of India, the head of our state”, Chief Justice of India N.V. Ramana said in conversation with US Supreme Court judge.

    What did the CJI say??

    • There is an impression that in India judges appoint judges. It is a wrong impression.
    • The appointment is done through a lengthy consultative process known as collegium system. Many stakeholders are consulted.

    What is Collegium System?

    • The Collegium of judges is the Indian Supreme Court’s invention.
    • It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
    • In effect, it is a system under which judges are appointed by an institution comprising judges.
    • After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to effect a mass transfer of High Court judges across the country.
    • Hence there was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.

    Evolution: The Judges Cases

    • First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
    • However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
    • Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
    • It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
    • Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

    The procedure followed by the Collegium

    Appointment of CJI

    • The President of India appoints the CJI and the other SC judges.
    • As far as the CJI is concerned, the outgoing CJI recommends his successor.
    • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
    • The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.

    Other SC Judges

    • For other judges of the top court, the proposal is initiated by the CJI.
    • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
    • The consultees must record their opinions in writing and it should form part of the file.
    • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

    For High Courts

    • The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
    • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
    • The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
    • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

    Does the Collegium recommend transfers too?

    • Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
    • Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
    • When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
    • In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
    • However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
    • All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.

    Loopholes in the Collegium system

    • Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
    • Judges appointing Judge: The attempt made to replace it with a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
    • Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge.

    Way ahead

    • In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
    • The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
    • Even the majority opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.

     

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  • Marital rape

    Context

    Justice M. Nagaprasanna of the Karnataka High Court on March 23, 2022, in the case of Hrishikesh Sahoo vs State of Karnataka, pronounced the end of the marital rape exception.

    Background of the case

    • This judgment was a result of a unique case where a woman had filed a criminal complaint of rape against her husband due to the repeated acts of sexual assault she had to face.
    • Marital rape exception to Section 375: The police registered her complaint under Section 376 notwithstanding the marital rape exception, a charge sheet was filed and the Sessions Judge took cognisance and framed charges under Section 376.
    • This led to the husband approaching the High Court seeking to quash the criminal proceedings.
    • In a nuanced and far-reaching judgment, Justice Nagaprasanna refused to quash the charge of rape against the husband.

    Violation of rights of woman

    • Violation of the right to equality: Justice Nagaprasanna held that if a man, being a husband is exempted for his acts of sexual assault, it would destroy women’s right to equality, which is the very soul of the Constitution.
    • Discrimination: He held that the Constitution recognises and grants equal status to women, but the exception to marital rape in the IPC amounts to discrimination because a wife is treated as subordinate to the husband.
    • The Constitution considers marriage as an association of equals and does not in any sense depict women to be subordinate to men and guarantees women the fundamental rights under Articles 14, 15, 19 and 21 the right to live with dignity, personal liberty, bodily integrity, sexual autonomy, right to reproductive choices, right to privacy, right to freedom of speech and expression.
    • n Independent Thought vs Union of India (2017), the Supreme Court of India diluted it and removed the exception to marital rape to a wife not below 15 years and made it 18 years.

    Historical roots of the principle of exception

    • The exception to marital rape in common law was due to the dictum by Chief Justice Matthew Hale of Britain in 1736 where he argued that by marriage, a woman gave up her body to the husband and was accepted as an enduring principle of common law, due to which a husband could not be guilty of raping his wife.
    • This was therefore translated into criminal codes, including the Indian Penal Code which India adopted.
    • This principle has now been completely abolished.
    • In the United Kingdom, in 1991, the exception to marital rape was done away with in the case of R. vs R. The House of Lords held that where the common law rule no longer represents what is the true position of a wife in present-day society.
    • The court held that a husband’s immunity as expounded by Chief Justice Matthew Hale no longer exists.

    Conclusion

    The Karnataka High Court, by holding that the exception to marital rape in Section 375 is regressive and in violation of the constitutional guarantee of equality, has now truly pronounced the death knell of the marital rape exception.

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  • FASTER digital platform for Judiciary

    ‘FASTER’, an abbreviation of ‘Fast and Secured Transmission of Electronic Records’, a digital platform was formally launched by Chief Justice of India (CJI) N.V. Ramana.

    What is FASTER?

    • The FASTER system proposes transmission of e-authenticated copies of the interim orders, stay orders, bail orders and record of proceedings to the duty-holders for compliance and due execution, through a secured electronic communication channel.
    • These orders may vary from stay of execution of a person to freeze on the demolition of a slum to bail orders for undertrial prisoners.
    • The idea stemmed from a case reported about several prisoners in the Agra Jail forced to remain behind bars for three days after the hard copies of the order had not reached the prison officials.

    Benefits offered

    • FASTER would aid the cause of quick and effortless justice.
    • The timely delivery of the court’s orders to the authorities would also prevent unnecessary arrests and custody of people who have already been granted anticipatory bail.
    • For smooth transmission of court’s orders and effective implementation of Article 21, Right to Life, such a system was the need of the hour.

     

    Also read:

    [RSTV Archive] Judiciary & Artificial Intelligence

     

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  • SC averse to ‘Sealed Cover Jurisprudence’

    Two separate Benches of the Supreme Court tore into the “sealed cover jurisprudence” practiced by the government in courts.

    What is the news?

    • The Supreme Court has allowed the Malayalam TV news channel MediaOne to resume broadcast, nearly six weeks after the government revoked its security clearance forcing it to shut down.
    • The channel was given security clearance by the MHA in February 2011 following which it obtained a licence to operate the channel in September 2011.
    • On January 5 this year, the channel was issued notice to revoke permission on the ground of “national security and public order”.
    • In February 2020, the channel’s licence was briefly suspended by MHA following its coverage of the Delhi riots.

    What did the court observe?

    • The court was critical about how the government and its agencies file reports in sealed envelopes directly in court without sharing the contents with the opposite party.
    • Being kept in the dark about the material contained in a sealed cover report, the petitioners are crippled in mounting a defence, not knowing what they are supposed to defend against.
    • At times, their cases, mostly involving fundamental rights such as personal liberty, are dismissed on the basis of the secret contents ensconced in the sealed covers.

    What is Sealed Cover Jurisprudence?

    • It is a practice used by the Supreme Court and sometimes lower courts, of asking for or accepting information from government agencies in sealed envelopes that can only be accessed by judges.
    • A specific law does not define the doctrine of sealed cover.
    • The Supreme Court derives its power to use it from Rule 7 of order XIII of the Supreme Court Rules and Section 123 of the Indian Evidence Act of 1872.

    Nature of the power: Upholding Secrecy

    • If the Chief Justice or court directs certain information to be kept under sealed cover or considers it of confidential nature, no party would be allowed access to the contents of such information.
    • There is an exception to this if the Chief Justice himself orders that the opposite party be allowed to access it.
    • It also mentions that information can be kept confidential if its publication is not considered to be in the interest of the public.
    • As for the Evidence Act, official unpublished documents relating to state affairs are protected and a public officer cannot be compelled to disclose such documents.

    Grounds of such secrecy

    Other instances where information may be sought in secrecy or confidence is when its publication:

    1. Impedes an ongoing investigation
    2. Details which are part of the police’s case diary or
    3. Breaches the privacy of an individual

    Prominent cases of sealed jurisprudence

    Sealed cover jurisprudence has been frequently employed by courts in the recent past.

    (1) Rafale Deal

    • In the case pertaining to the controversial Rafale fighter jet deal, a Bench headed by CJI Ranjan Gogoi in 2018, had asked the Centre to submit details related to deal’s decision making and pricing in a sealed cover.
    • This was done as the Centre had contended that such details were subject to the Official Secrets Act and Secrecy clauses in the deal.

    (2) Bhim Koregaon Case

    • In the Bhima Koregaon case, in which activists were arrested under the Unlawful Activities Prevention Act.
    • The Supreme Court had relied on information submitted by the Maharashtra police in a sealed cover.

    Criticism of such acts

    • Critics of this practice contend that it is not favorable to the principles of transparency and accountability of the Indian justice system.
    • It stands in contrast to the idea of an open court, where decisions can be subjected to public scrutiny.
    • It is also said to enlarge the scope for arbitrariness in court decisions, as judges are supposed to lay down the reasoning for their decisions.
    • Besides, it is argued that not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication.

    How has the judiciary responded to this?

    • In the 2019 judgment in the case of P Gopalakrishnan V. The State of Kerala, the Supreme Court had said that disclosure of documents to the accused is constitutionally mandated.
    • This is possible even if the investigation is ongoing and said documents may lead to breakthroughs in the investigation.

     

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  • Electoral democracy vs constitutional democracy: Post-poll lessons

    Context

    The recently concluded assembly elections have some larger implications that we need to take note of. The consequences are not confined to the five states where the electoral battle was fought.

    Undermining of non-electoral dimensions of democracy

    • In much of the world, the electoral aspects of democracy are now being used to undermine the non-electoral dimensions of democracy.
    • Today, such contradictions exist in Turkey, Poland, Hungary, Russia, to name just a few countries.
    • A freely conducted vote can thus be used to cripple the other freedoms that modern democracies also value.

    How electoral democracy can be a vehicle of assault on constitutional democracy

    • The triumph of such politics can now be used in three ways — in executive decrees, in legislative chambers to formulate laws, and on the street via vigilante forces.
    • Though minority rights are enshrined in India’s Constitution, election victories can now be used to create laws, or government policies that begin to attack precisely those rights.
    • Role of judiciary: The courts are the final custodian of constitutional proprieties in a democracy and can frustrate a legislative or executive attack on the Constitution.
    • But that depends on whether the judiciary is willing to play its constitutionally assigned role.
    • Judicial interpretation can go either way – in favour of the government or against it.

    Contradictory aspects of democracy from other parts of the world

    • These contradictory aspects of democracy do have older roots.
    • We can go all the way back to some tendencies that emerged in the democracy of America’s southern states in the 1880s, which lasted till the 1960s.
    • America’s Blacks lost their equality as well as franchise, and the courts did not invalidate a majoritarian attack on their rights.
    • The history of 1930s Germany is also viewed as an example of how democracy undermined democracy.
    • As early as the 1950s, Sri Lanka imposed a “Sinhala only” policy on the Tamil minority of the country.
    •  In the 1980s, a civil war was born as a consequence.
    • In Malaysia, following roughly similar policies, the Malay majority sidelined the Chinese minority.
    • Internal tensions and aggravations rose but, unlike Sri Lanka, a civil war did not.
    • The minorities pursued their interests by entering into coalitions with political parties within the larger parameters of the polity.

    Consider the question “How the electoral aspect of the democracy can affect the non-electoral aspect of the democracy. What are the implications of such phenomenon for the democracy?”

    Conclusion

    This process can be called the battle between electoral democracy and constitutional democracy. Processes internal to the democratic system can severely weaken democracy itself, even causing its collapse.

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  • Sealed cover’ jurisprudence is appalling

    Context

    A Division Bench of the Kerala High Court has dismissed the appeal filed by a television channel. The trouble emanating from the judgment is that the state need not even show that its security is threatened. It can conveniently choose the ‘sealed cover’ route.

    Background of the case

    • The Ministry had said that the licence could not be renewed for reasons related to national security.
    • The stand of the Government was endorsed by both the Single and Division Benches of the High Court.
    •  In the judgment of March 2, the Division Bench said: “It is true that the nature, impact, gravity and depth of the issue is not discernible from the files.
    • Still, the Bench chose to dismiss the appeals by bluntly saying that “there are clear and significant indications impacting the public order and security of the state”.
    • All that is necessary to ban a news broadcaster are these ‘indications’ — which are never revealed to the broadcaster.

    Issues with the judgement

    1] Violation of the fundamental rights

    • A whole set of rights are directly hit by the ban. The first is the  right to freedom of speech and expression of the television channel.
    • The rights to association, occupation and business are also impacted.
    • Moreover, the viewers also have a right to receive ideas and information.
    • All these rights are altogether suspended by the executive. The only contingency in which these rights under Article 19(1) can be interfered with are reasonable restrictions under Article 19(2).
    • The judgment creates a situation that endorses the breach of fundamental rights on the one hand, and blocks remedy for the victim through a court of law and a process known to law on the other hand.

    2] Takes away the power of judicial review

    • India’s Constitution does not give a free hand to the executive to pass arbitrary orders violating such rights.
    • Basic feature of the Constitution: The Supreme Court of India has repeatedly held that judicial review of executive action is the basic feature of the Constitution.
    • The decisions in Minerva Mills vs Union of India (1980) and L. Chandra Kumar vs Union of India (1997) reiterated this fundamental principle.
    • Test of reasonable restriction: If the executive wishes to limit rights — in this case, censor or restrict speech — it must show that the test of reasonable restrictions is satisfied.
    • The ‘sealed cover’ practice inverses this position.

    3] Lack of examination of national security ground

    • There was no examination of the national security plea based on the proportionality analysis, well established in our recent jurisprudence.
    • Also, when a three-judge Bench in the Pegasus case ( Manohar Lal Sharma vs Union of India, 2021) has categorically held that the state does not get a “free pass every time the spectre of ‘national security’ is raised”.

    Proportionality analysis

    • In Modern Dental College vs State of Madhya Pradesh (2016), the top court adopted the proportionality test “a limitation of a constitutional right will be constitutionally permissible if:
    • (i) it is designated for a proper purpose
    • (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfillment of that purpose;
    • (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally
    • (iv) there needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right”.
    • This was reiterated in K.S. Puttaswamy vs Union of India (2017).

    Conclusion

    The MediaOne case might create a real problem area that needs resolution by the Supreme Court.

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