💥Join UPSC 2027,2028 Mentorship (July Batch) + XFactor Notes & Microthemes PDF
Talk to Mentor

Civilsdaily

Login

Subject: Judiciary

  • The constitutional battle between governor and government

    Context

    The Supreme Court’s action in ordering the release of A G Perarivalan, a convict in the Rajiv Gandhi assassination case, has resulted in mixed reactions.

    Background

    • After the assassination of Rajiv Gandhi, the assailants were tried under the notorious Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA).
    • All 26 accused were given the death sentence by the Special Court for various offences, including under TADA (1998).
    • Fortunately, the SC held that the offences under TADA were not made out since there was no case to proceed for acts of terrorism.
    • It also modified the death penalty for 22 persons and confirmed the same only for Nalini, Perarivalan, Murugan and Santhan (1999).
    • Petition for mercy under Article 161: They petitioned the governor of Tamil Nadu for mercy under Article 161.
    • The then governor of Tamil Nadu dismissed their petition without any advice from the cabinet.
    • The Madras High Court ruled that the governor cannot exercise the power of pardon without the advice of the council of ministers.
    • The cabinet advised the governor to give reprieve only to Nalini Sriharan and rejected the case of the other three, including Perarivalan.
    • Perarivalan and the two other convicts appealed to the president with a mercy plea under Article 72. 
    •  Two successive presidents of India – K R Narayanan and APJ Abdul Kalam — did not pass any mercy orders.
    • But all of a sudden, their mercy pleas were rejected after a delay of 11 years by President Pratibha Patil.
    • When they were about to be executed, the convicts moved the Madras HC challenging the execution of the death warrant issued against them.
    • The cases were transferred to the SC, which decided that the president’s action in not considering the mercy plea within a reasonable time was improper and since the three prisoners had been on death row for 11 years, it was a fit case for commuting their sentence to life imprisonment.
    • Meanwhile, on February 19, 2014, the TN cabinet advised the governor to grant reprieve to all seven accused.
    • Once again, all of them applied for remission from the governor.
    • The state cabinet also advised the governor to grant pardon.
    • WhenPerarivalan’s mother, filed a case for parole, the court noting the inordinate delay observed: “the Governor of T N, a constitutional authority, cannot sit on the state’s recommendation on the release of all seven life convicts in the Rajiv Gandhi assassination case for so long” (July 2020).
    • The court was informed that the governor was awaiting the final report of the CBI’s Multi-Disciplinary Monitoring Agency (MDMA).

    Role of MDMA

    • The role of MDMA itself came up for criticism by the SC in January 2018 and it observed that the agency did not appear to have made “much headway”.
    • The court observed that the question of reopening the case against them will not arise as they had been already convicted for murder and conspiracy.
    • Article 20(2) of the Constitution guarantees that no person can be prosecuted and punished for the same offence more than once.

    Use of powers under Article 142 by the Supreme Court

    • Once again, the process of granting mercy to the seven accused began with a resolution passed by the T N Assembly on September 9, 2018.
    • On the same day, the state cabinet advised the governor to give reprieve to all seven prisoners.
    • On being compelled by the court, the governor stated that the matter was to be dealt with by the President.
    • It was at this stage the matter went back to the SC.
    • It was finally decided that the authority to grant pardon is with the governor and he is bound by the advice of the state government.
    • The court also ruled that the action of the governor in delaying the matter for more than 2.5 years was unacceptable.
    • Exercising its power under Article 142 as well as considering all the relevant circumstances, the SC ordered Perarivalan’s release.

    Limitations on governor’s power

    • Giving reprieve to persons sentenced to the death penalty, even in the exercise of the plenary powers by a governor, has limitations.
    • In 1978, Parliament amended the Criminal Procedure Code and introduced Sec 433A by which in such cases, prisoners cannot be released from prison unless they had served a minimum of 14 years in prison. 

    Reformatory penal system of India

    • India’s penal system is undoubtedly reformatory and not retributive.
    • The SC ruled on this issue by stating “a barbaric crime does not have to be visited with a barbaric penalty.”
    • It is also surprising that the successive governments at the Centre appeared to be guided in this case by geopolitical considerations rather than this country’s laws.

    Conclusion

    The question now is whether the six other prisoners will receive the same relief or will there be a confrontation between the state government and governor once again. Let us hope that wisdom prevails and the governor’s office is not manipulated for narrow political considerations.

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • Explained: Article 142 of the Constitution

    The Supreme Court has exercised the power conferred on it under Article 142 of the Constitution to order the release of former Prime Minister’s assassination convict.

    Supreme Court frees Perarivalan

    What is Article 142?

    Article 142 titled ‘Enforcement of decrees and orders of the Supreme Court and orders as to discovery, etc.’ has two clauses:

    [1] Article 142(1)

    • The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
    • Any decree so passed or order so made shall be enforceable throughout the territory of India.
    • It may be in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

    [2] Article 142(2)

    • The Supreme Court shall have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

    History of Article 142

    • When a draft Constitution was prepared by the drafting committee and placed before the Constituent Assembly, Article 142 was actually numbered as Article 118.
    • It was placed before the Constituent Assembly on May 27, 1949 for debate but got adopted on the same day without any debate.
    • This was possibly because everyone agreed that in order to ensure judicial independence, the highest court of the country must be empowered with plenary power to do complete justice.

    Articles invoked in Perarivalan Case

    • In the case of Perarivalan, the Supreme Court invoked Article 142(1) under which it was empowered to pass any order necessary to do complete justice in any matter pending before it.
    • It held that it was not a fit case to be remanded to the Governor for his consideration under Article 161 of the Constitution.

    Important instances when Article 142 was invoked

    • Bhopal Gas tragedy case: The SC awarded a compensation of $470 million to the victims and held that “prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142.”
    • Babri Masjid demolition case: The Supreme Court ordered framing of a scheme by the Centre for formation of trust to construct Ram Mandir at the Masjid demolition site in Ayodhya.
    • Liquor sale ban case: The Supreme Court banned liquor shops within a distance of 500 metres from National as well as State highways in order to prevent drunken driving.

    Try this PYQ from CSP 2019:

    Q.With reference to the Constitution of India, prohibitions or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on the constitutional powers under Article 142. It could mean which one of the following?

     

    a. The decisions taken by the Election Commission of India while discharging its duties cannot be challenged in any court of law.

    b. The Supreme Court of India is not constrained in the exercise of its powers by laws made by the Parliament.

    c. In the event of grave financial crisis in the country, the President of India can declare Financial Emergency without the counsel from the Cabinet.

    d. State Legislatures cannot make laws on certain matters without the concurrence of Union Legislature.

     

    [wpdiscuz-feedback id=”auggnj78dn” question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

     

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • On Section 124A Supreme Court has aligned itself with the collective conscience

    Context

    The Supreme Court’s seminal intervention in a batch of petitions challenging the constitutional validity of section 124A of the Indian Penal Code is a watershed moment in the progressive expansion of human rights jurisprudence.

    Abuse of sedition law

    • The slapping of sedition charges against political opponents and others in Maharashtra, Punjab, Rajasthan, Chhattisgarh, Tamil Nadu, Andhra Pradesh and Madhya Pradesh have confirmed that the abuse of the sedition law is no longer an aberration.
    • It has become a norm that has hollowed out the constitutional guarantee of fundamental rights and exposed individuals to the rigour of draconian laws unjustly invoked, outraging national sensitivities as never before.

    Significance of the move

    • In what is seen as a first in judicial history, the Supreme Court has virtually rendered redundant the provision of a criminal law without expressly declaring it as unconstitutional.
    • In an example of judicial statecraft, the court has shielded individuals against a harsh law without trenching on Parliament’s legislative remit or the executive’s command over policy decisions.
    • Plenary jurisdiction: Exercising plenary jurisdiction, the Supreme Court is expected to see through its suggestions/orders to the government, particularly when these concern the non-negotiable fundamental rights of citizens.
    • Suggestive jurisdiction: As an organ of the state, the Supreme Court’s suggestive jurisdiction is clearly in accord with its declared law (Nagaraj, 2006) that the state (of which the court is an integral constituent), is under a duty not only to protect individual rights but is also obliged to facilitate the same.
    • Validating the nations role: The court-inspired initiatives would also validate the nation’s preeminent role in the shaping of a new world order.

    Implications of the law

    • Nudging the government towards anti-lynching law: As with the sedition law, it can nudge the government to enact an anti-lynching humanitarian law as suggested by it and a comprehensive law against custodial torture.
    •  Law against custodial torture: The absence of an anti-custodial torture law, a glaring gap in the architecture of the criminal justice system, is inexplicable considering the command of Article 21, recommendations of the Select Committee of Rajya Sabha (2010), the Law Commission of India (2017) and the Human Rights Commission and the judgments of the Supreme Court (Puttaswamy, 2017; Jeeja Ghosh, 2016; and Shabnam, 2015).
    • Implications for the UAPA: It is expected likewise from the court to intervene suitably and read down the UAPA and other criminal laws that have been repeatedly misused to trample upon the civil liberties and rights of the people.

    Conclusion

    This is indeed the moment to seize, as the government reviews the nation’s legal structures. The initiatives suggested above are in aid of democracy anchored in the inviolability of human rights and would enhance India’s soft power in our engagement with the international community.

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • In abeyance of Section 124A, a provisional relief

    Context

    In a brief order delivered in S.G. Vombatkere vs Union of India, a three-judge Bench of the Supreme Court of India effectively suspended the operation of Section 124A of the Indian Penal Code.

    What was the basis for the reconsideration?

    • This direction was issued after the Union government filed an affidavit informing the Court that it had decided to re-examine the law.
    • The Bench believed that the offer to reconsider the provision, if nothing else, showed that the Government was in broad agreement with the Court’s prima facie opinion on the matter, that the clause as it stands “is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime”.

     Section 125A and issues with it

    • Section 124A defines sedition as any action — “whether by words, signs, or visible representation” — which “brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law in India”.
    • The word “disaffection”, the provision explains, “includes disloyalty and all feelings of enmity”.
    • The adopted Constitution did not permit a restriction on free speech on the grounds of sedition. 
    • In the 1950s, two different High Courts struck down Section 124A as offensive to freedom.
    • But, in 1962, in Kedar Nath Singh vs State of Bihar, a five-judge Bench of the Supreme Court reversed these verdicts.
    • The Court paid no heed to the debates that informed the Constituent Assembly.
    • Instead, it found that Section 124A was defensible as a valid restriction on free speech on grounds of public order.
    • However, while upholding the clause, the Court limited its application to “acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”.
    • Vague terms: The decision failed to recognise that terms such as “disaffection towards the government”, which are fundamentally vague.
    • Marginalised sections affected: Since then, in its application by law enforcement, the limitations imposed in Kedar Nath Singh have rarely been observed.
    •  As is often the case with abuses of this kind, it is the most marginalised sections of society that have faced the brunt of the harm.
    • Reading of fundamental rights changed: Since 1962, when the judgment was handed out, the Supreme Court’s reading of fundamental rights has undergone a transformative change.
    • Time to reconsider Kedar Nath: This altered landscape meant that when fresh challenges were mounted against Section 124A, the time to reconsider Kedar Nath Singh had clearly arrived. 
    • In the long run, the decision in Kedar Nath Singh will require a clear disavowal.
    • But in nullifying Section 124A, albeit for the present, the Court has provided provisional relief — allowing those accused of the offence to both seek bail in terms of the order, and to have their trials frozen.

    Conclusion

    To protect our democracy, we must ensure that the constitutional guarantees to personal liberty and freedom do not go in vain. For that, each of our penal laws must be animated by a concern for equality, justice, and fairness.

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • Public opinion cannot influence jurisprudence

    Context

    On May 5, 2022, the current affairs site politico.com obtained the draft opinion of Justice Samuel Alito, apparently speaking for the majority of the judges of the Supreme Court of the United States (SCOTUS) overruling Roe v Wade (1973) and Planned Parenthood v Casey (1992). These two previously decided cases enable women in the US to access abortions, albeit with some restrictions.

    Background of the US Supreme Court

    • SCOTUS was established on March 4, 1789.
    • The almost 225-year-old court, founded to interpret the American constitution that was adopted in 1789, has a long history of being an ideologically divided court, hearing deeply contentious political issues.
    • Within both the polity and law in the US, no issue is as emotive and divisive as matters related to abortion.
    • At present there is the 6-3 divide in the SCOTUS, with the conservatives constituting the majority.
    • Paying attention to the public opinion: Conservative judges also frame the regulation of abortion as a state legislative rights issue, giving enormous weight to the apparent public opinion within those states.

    Paying attention to the public opinion

    • In the draft opinion that was leaked, after being circulated to the other eight judges of SCOTUS, Justice Alito writes “We hold that Roe and Casey must be overruled,” adding, “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.
    • Here is how the issue is initially framed: Legislatures in states must be able to adopt laws on abortion as they see fit.
    • The justification offered is in the context of the legitimacy of such laws being made by the will of the people, through their representatives.
    •  Justice Alito clearly sees this an issue for the legislature to decide based on the will of the voters.

    Why public opinion is not a legitimate parameter for adjudicating issues of rights

    • Against the separation of power: Across jurisdictions, in the constitutional scheme of separation of powers, the executive, legislature and judiciary are expected to play different roles.
    • The executive to govern using the rule of law, the legislature to make law and the judiciary to ensure that those laws are in consonance with constitutional values.
    • The introduction of public opinion and deference to the legislature as a valid basis for adjudication by constitutional courts leads to extraordinary conclusions.
    • The virtue of constitutional courts is that they are expected to be insulated from public opinion.
    • In that regard, they are freed from the vagaries of the will of the voters and enjoy the quiet introspection and justification through legal reasoning that the law creates space for.

    Conclusion

    The notion that constitutional courts should take  the will of voters into account is at odds with the understanding of courts elsewhere, like in India.

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • India’s judiciary and the slackening cog of trust

    Context

    Departures from substantive and procedural justice need deep scrutiny as the fallout could severely imperil governance.

    Judicial corruption in India in lower judiciary

    • According to Transparency International (TI 2011), 45% of people who had come in contact with the judiciary between July 2009 and July 2010 had paid a bribe to the judiciary.
    • The most common reason for paying the bribes was to “speed things up”.
    • The Asian Human Rights Commission (AHRC) (April 2013) estimates that for every ₹2 in official court fees, at least ₹ 1,000 is spent in bribes in bringing a petition to the court.
    • Freedom House’s ‘Freedom in the World 2016 report for India’ states that “the lower levels of the judiciary in particular have been rife with corruption” (Freedom House 2016).
    • Allegations of corruption against High Court judges abound.
    • Worse, there are glaring examples of anti-Muslim bias, often followed by extra-judicial killings by the police.
    • Anti-Muslim bias alone may not result in erosion of trust but if combined with unprovoked and brutal violence against them (e.g., lynching of innocent cattle traders) is bound to.

    Forms of judicial corruption

    • Pressure and bribery: Judicial corruption takes two forms: political interference in the judicial process by the legislative or executive branch, and bribery.
    • Despite the accumulation of evidence on corrupt practices, the pressure to rule in favour of political interests remains intense.
    • Court officials coax bribes for free services, and lawyers charge additional “fees” to expedite or delay cases.

    Case pendency

    • According to the National Judicial Data Grid, as of April 12, 2017, there are 24,186,566 pending cases in India’s district courts, of which 2,317,448 (9.58%) have been pending for over 10 years, and 3,975,717 (16.44%) have been pending for between five and 10 years.
    • Vacancies: As of December 31, 2015, there were 4,432 vacancies in the posts of [subordinate court] judicial officers, representing about 22% of the sanctioned strength.
    • In the case of the High Courts, 458 of the 1,079 posts, representing 42% of the sanctioned strength, were vacant as of June 2016.
    • Thus, severe backlogging and understaffing persisted, as also archaic and complex procedures of delivery of justice.

    Understanding the substantive and procedural justice

    • Substantive justice is associated with whether the statutes, case law and unwritten legal principles are morally justified e.g., freedom to pursue any religion,
    • Procedural justice is associated with fair and impartial decision procedures.
    • Outdated laws: Many outdated/dysfunctional laws or statutes have not been repealed because of the tardiness of legal reform both at the Union and State government levels.
    • Worse, there have been blatant violations of constitutional provisions.
    • The Citizenship (Amendment) Act (December 2019) provides citizenship to — except Muslims — Hindus, Buddhists, Sikhs, Jains, Parsis and Christians who came to India from Pakistan, Bangladesh and Afghanistan on or before December 31, 2014.
    • But this goes against secularism and is thus a violation of substantive justice.
    • Alongside procedural delays, endemic corruption and mounting shares of under-trial inmates with durations of three to five years point to stark failures of procedural justice and to some extent of substantive justice.

    Conclusion

    Exercise of extra-constitutional authority by the central and State governments, weakening of accountability mechanisms, widespread corruption in the lower judiciary and the police, with likely collusion between them, the perverted beliefs of the latter towards Muslims, other minorities and lower caste Hindus, a proclivity to deliver instant justice, extra-judicial killings, filing FIRs against innocent victims of mob lynching have left deep scars on the national psyche.

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • 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.

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • 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.

     

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • 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.

     

    UPSC 2022 countdown has begun! Get your personal guidance plan now! (Click here)

  • 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.

     

    UPSC 2022 countdown has begun! Get your personal guidance plan now! (Click here)