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

Civilsdaily

Login

Subject: Judiciary

  • Issues related to Tribunal

    The Supreme Court has warned that even after the judicial intervention, the government made abrupt efforts to fill vacancies in tribunals some time back and nothing after that.

    What is the case?

    • The apex court said that it is getting requests for extension of time for NCLT (Nation Company Law Tribunal) matters, etc.
    • Some knee-jerk appointments took place and nothing after that.
    • The govt earlier had introduced Tribunal Reforms Bill in 2021, which abolishes nine appellate tribunals and revives provisions of an ordinance struck down by the Supreme Court.

    What are Tribunals?

    • Tribunals are specialist judicial bodies that decide disputes in a particular area of law.
    • They are institutions established for discharging judicial or quasi-judicial duties.
    • The objective may be to reduce the caseload of the judiciary or to bring in subject expertise for technical matters.

    Do you know?

    The Income Tax Appellate Tribunal was established as the first Tribunal in India back in 1941.

    Creation of Tribunals

    In 1976, Articles 323A and 323B were inserted in the Constitution of India through the 42nd Amendment.

    • Article 323A: This empowered Parliament to constitute administrative Tribunals (both at central and state level) for adjudication of matters related to recruitment and conditions of service of public servants.
    • Article 323B: This specified certain subjects (such as taxation and land reforms) for which Parliament or state legislatures may constitute tribunals by enacting a law.
    • In 2010, the Supreme Court clarified that the subject matters under Article 323B are not exclusive, and legislatures are empowered to create tribunals on any subject matters under their purview as specified in the Seventh Schedule.

    SC stance on Tribunals

    • The Supreme Court has ruled that tribunals, being quasi-judicial bodies, should have the same level of independence from the executive as the judiciary.
    • Key factors include the mode of selection of members, the composition of tribunals, and the terms and tenure of service.
    • In order to ensure that tribunals are independent of the executive, the Supreme Court had recommended that all administrative matters be managed by the law ministry rather than the ministry associated with the subject area.
    • Later, the Court recommended the creation of an independent National Tribunals Commission for the administration of tribunals.
    • These recommendations have not been implemented.

    Issues with tribunals

    • Pendency: Whereas the reasoning for setting up some tribunals was to reduce the pendency of cases in courts, several tribunals are facing the issue of a large caseload and pendency.
    • No appointment: With over 240 vacancies in key tribunals where thousands of cases were pending, not a single appointment had been made by the government in any of these tribunals till date.

    Back2Basics: National Company Law Tribunal

    • The NCLT is a quasi-judicial body that adjudicates issues relating to Indian companies.
    • The tribunal was established under the Companies Act 2013 in 2016 and is based on the recommendation of the V. Balakrishna Eradi Committee.
    • All proceedings under the Companies Act, including proceedings relating to arbitration, compromise, arrangements, reconstructions and the winding up of companies shall be disposed off by the NCLT.
    • The NCLT bench is chaired by a Judicial member who is supposed to be a retired or a serving High Court Judge and a Technical member who must be from the Indian Corporate Law Service, ICLS Cadre.
    • It is the adjudicating authority for the insolvency resolution process of companies and limited liability partnerships under the Insolvency and Bankruptcy Code, 2016.

     

     

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

  • Comprehensive Amendment of Criminal Laws

    The Central government has initiated the process for comprehensive amendment of criminal laws in India in consultation with all stakeholders

    Criminal Laws in India

    Indian criminal laws are divided into three major acts:

    1. Indian Penal Code, 1860: It is a comprehensive code intended to cover all substantive aspects of criminal law.
    2. Code of Criminal Procedure, 1973: CrPC defines the rules with which substantive laws can be enforced.
    3. Indian Evidence Act, 1872: It contains a set of rules and allied issues governing the admissibility of evidence in the Indian courts of law.

    Other laws

    Besides these major acts, special Criminal Laws are also passed by the Indian Parliament which includes:

    • Narcotic Drugs and Psychotropic Substances Act
    • Prevention of Corruption Act
    • Food Adulteration Act
    • Dowry Prohibition Act
    • The Defence of India Act, etc.

    Issues with these laws

    • Colonial ideas prevail in the code.
    • Some laws don’t reflect the aspirations of India’s liberal Constitution
    • It does not recognize the individual agency of citizens of free India
    • Too many laws promote patriarchal attitudes, biased against women
    • Sedition laws are misused by the state
    • Tech crimes, cyber crimes, sexual offenses need to be defined
    • Risk of excessive policing, which leads to harassment of people.
    • Need to harmonize statute books with court rulings, which have often expanded the rights of people.
    • Some provisions are disadvantageous for the underprivileged who are trapped in jail for long but favour the powerful, who get bail very easily
    • Influence of media trials on the judiciary while using the IPC.

    Why amend them?

    • The evolution of criminal laws is a continuous process.
    • They need to be made in accordance with the contemporary needs and aspirations of people.
    • Malimath Committee has called for reform in India’s criminal justice system.

    Progress made to date

    • The entire procedure is a long-drawn-out one and no time limit can be fixed or given for this legislative process.
    • Legislation of such laws is a complex and lengthy exercise given the spectrum of divergent views of stakeholders.
    • The Home Ministry is seeking suggestions from various stakeholders and judicial luminaries in this regard.

     

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

  • What is Collegium System?

    The Supreme Court Collegium headed by Chief Justice N.V. Ramana has recommended to the Centre the names of six judicial officers for appointment as judges of the Delhi High Court.

    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.

     

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

  • The Supreme Court fails to decide key constitutional cases in time-bound manner

    Context

    Unless the Court strives in every possible way to assure that the Constitution, the law, applies fairly to all citizens, the Court cannot be said to have fulfilled its custodial responsibility.

    Landmark judgments

    • In the last few years, the Indian Supreme Court has delivered some judgments of far-reaching consequence.
    • It declared the right to privacy a fundamental right; decriminalized consensual sexual conduct between adults of the same sex; recognized transgender persons as the third gender; and outlawed triple talaq.
    • These decisions shore up the belief in republican values like liberty and equality reified in our Constitution.

    Important cases pending in the Supreme Court

    • Constitutionality of CAA: Many petitions were filed before the Supreme Court challenging the constitutionality of the Citizenship (Amendment) Act, 2019, that provides non-Muslim communities from Bangladesh, Pakistan, and Afghanistan a fast-track route to Indian citizenship.
    • More than two years later, the matter continues to languish in the apex court.
    • Dilution of Article 370: Innumerable petitions have been filed challenging the Presidential Order of August 5, 2019, that effectually diluted Article 370 of the Constitution.
    • To date, the court has done precious little to decide this vexed question of law.
    • Constitutionality of 103rd amendment: Petitions challenging the constitutionality of the Constitution(One Hundred and Third Amendment)Act,2019 that provides reservations in public educational institutions and government jobs for economically weaker sections are also languishing in the Supreme Court.
    • Challenges to the electoral bond scheme: The Supreme Court has failed to accord proper hearing in the last four years to the constitutional challenge to the electoral bonds scheme.

    Conclusion

    Unless the Court strives in every possible way to assure that the Constitution, the law, applies fairly to all citizens, the Court cannot be said to have fulfilled its custodial responsibility”.

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

  • English is the language of Court: Gujarat HC

    A Division Bench of the Gujarat High Court has asked a convict to speak only in English as that was the language in the higher judiciary referring to Article 348 of the Constitution which mandates that the language of the High Court would be English.

    What is Article 348?

    • It provides for languages to be used in the Supreme Court and in the High Courts and for Acts, Bills, etc
    • Article 348 (1) provides that all proceedings in the Supreme Court and in every High court shall be in English Language until Parliament by law otherwise provides.
    • Under Article 348 (2), the Governor of the State may, with the previous consent of the President, authorize the use of the Hindi language or any other language used for any official purpose of the State.
    • It states that in the proceedings of the High Court having its principal seat in that State provided that decrees, judgments or orders passed by such High Courts shall be in English.

    When is use of other languages permitted?

    • Section 7 of the Official Languages Act, 1963, provides that the use of Hindi or official language of a State in addition to the English language may be authorized.
    • This has to be done with the consent of the President of India, by the Governor of the State for purpose of judgments etc. made by the High Court for that State.

     

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

  • ‘Indianizing’ the Legal System and SC’s Views

    At least two Supreme Court judges have in the past few months openly expressed the need to “Indianize” the legal system.

    What is the news?

    • This week, Justice S. Abdul Nazeer underscored the need to embrace the great legal traditions as per Manu, Kautilya, Katyayana, Brihaspati, Narada, Parashara, Yajnavalkya and other legal giants of ancient India.
    • Continued neglect of their great knowledge and adherence to alien colonial legal system is detrimental to the goals of our Constitution and against our national interests, he said.
    • He emphasized the need for Indianization of the legal system to decolonize the Indian legal system.
    • He concluded that this colonial legal system is not suitable for the Indian population.

    Background of the case

    Then CJI P.N. Bhagwati in the M.C. Mehta Case way back in 1986 has said that-

    • We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country.
    • We no longer need the crutches of a foreign legal order.
    • We are certainly prepared to receive light from whatever source it comes from, but we have to build up our own jurisprudence.

    Indianization of Judiciary

    • Last month, CJI N.V. Ramana called for the “Indianization” of the legal system to provide greater access to justice to the poor as the “need of the hour”.
    • CJI emphasized this as an adaptation to the practical realities of our society and localize our justice delivery systems.
    • For example, parties from a rural place fighting a family dispute are usually made to feel out of place in the court, the CJI clarified.

    Major suggestions by CJI:

    (A) Simplification

    • The simplification of justice delivery should be our pressing concern.
    • It is crucial to make justice delivery more transparent, accessible and effective.
    • Procedural barriers often undermine access to justice.
    • The Chief Justice said both judges and lawyers have to create an environment which is comforting for the litigants and other stakeholders.

    (B) Alternate dispute mechanisms

    • The CJI said alternate dispute mechanisms like mediation and conciliation would go a long way in reducing pendency, unnecessary litigation and save resources.

    Major suggestions by CJI:

    (A) Simplification

    • The simplification of justice delivery should be our pressing concern.
    • It is crucial to make justice delivery more transparent, accessible and effective.
    • Procedural barriers often undermine access to justice.
    • The Chief Justice said both judges and lawyers have to create an environment that is comforting for the litigants and other stakeholders.

    (B) Alternate dispute mechanisms

    • The CJI said alternate dispute mechanisms like mediation and conciliation would go a long way in reducing pendency, unnecessary litigation and save resources.

    Recent moves of Indianization

    • Supreme Court judgments show that the Indian legal system had made an early start at consciously getting rid of the “crutches” of colonial influence.

    (1) General principles laid by the SC

    • The evolution of laws in India has been through legislation and the binding precedents of the Supreme Court under Article 141 of the Constitution.
    • Article 142 of the Constitution of India deals with the Enforcement of decrees and orders of the Supreme Court.

    (2) Public Interest Litigation

    • The public interest litigation mechanism is truly Indian.

    (3) Reference to Indian texts

    • Several judgments since the 1980s refer to the works of Manu and Kautilya.
    • In the privacy judgment, Justice S.A. Bobde (retired), referred to how “even in the ancient and religious texts of India, a well-developed sense of privacy is evident”.
    • He mentions that Kautilya’s “Arthashastra prohibits entry into another’s house, without the owner’s consent”.

    Issues with Ancient Texts

    • In the Sabarimala Case, the court pointed to the Manusmriti to observe that in these “ancient religious texts and customs, menstruating women have been considered as polluting the surroundings”.
    • It went on to hold that practices that legitimize menstrual taboos, due to notions of purity and pollution, limit the ability of menstruating women to attain the freedom of movement and the right of entry to places of worship.

    Way forward

    • It is time for courts to wake up from their colonial stupor and face the practical realities of Indian society.
    • Rules and procedures of justice delivery should be made simple.
    • The ordinary, poor, and rural Indian should not be scared of judges or the courts.

     

     

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

  • Plea in Supreme Court seeks ‘Uniform Judicial Code’ for HCs

    A petition was filed in the Supreme Court to implement a “Uniform Judicial Code (UJC)” for High Courts across the country to adopt a uniform set of procedures, especially for virtual courts.

    What is the PIL about?

    • The petition urged the apex court to take appropriate steps to adopt uniform procedure for case registration, use common judicial terms, phrases and abbreviations and make the court fee uniform.
    • It has, alternatively, sought a direction to the Law Commission of India to prepare a report in consultation with the HC in this regard.

    Why need UJC?

    • Matter of Equality: Judicial equality is a matter of constitutional right, its differentiation based on the jurisdiction of courts violates the right to equality.
    • Different nomenclatures: All the 25 High Courts have different usage of the phrases when it comes to identifying different cases.
    • Diverse procedures: The PIL plea highlighted how different High Courts follow different procedures in matters pertaining to virtual courts, started during the pandemic.
    • Different fees: Unequal court fees in different states discriminate among citizens based on their place of birth and residence. Moreover, it promotes regionalism; hence it is a clear violation of Articles 14-15.

    Way forward: Bringing in digitized Judiciary systems

    • The judiciary needs to develop a well-defined framework supported by an accessible platform and direct e-court system in India.
    • It also needs to harp on advanced infrastructure to run an e-court system that eradicates the digital divide, simultaneously upping judicial functioning.
    • While the digitized judicial systems give some semblance of convenience for the people who interact with the court, digitization also brings threats of intrusion etc.

     

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

  • Judges cannot be shielded from citizens’ questions

    Context

    Recently, the Chief Justice of India, in his own mild way, protested against the attack on judges. One can understand his pain and agony, but he too knows that judges do not, and should not live in ivory towers.

    Questioning and analysing actions of the judiciary

    • As the judiciary is one of the pillars of democracy, and the Constitution entrusts judges with the task of protecting the constitutional rights of the people, especially the right to life and liberty, the consumer of justice has every right, and would be fully justified in critically examining, and commenting upon each and every word of the judges spoken or written, howsoever unpalatable it may be.
    • It appears that it is in the above spirit that MP Shashi Tharoor, speaking in Parliament on the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill said that the judiciary had failed to stem the tide of militant majoritarianism.
    • He alleged that the “judiciary’s inaction almost always favours those in power”. 
    • He has raised pertinent questions, and has brought out the glaring failings of the judiciary in matters concerning the protection of the constitutional rights of citizens. 
    • Pendency of important cases such as the abrogation of Article 370 of the Constitution, the Citizenship Amendment Act, electoral bonds, and many petitions under the preventive detention laws highlights this issue.

    Issues in functioning of collegium system

    • As regards the functioning of the collegium system, judges are transferred without any seeming justification, and in some cases re-transferred, justifying neither their initial transfer nor the re-transfer.
    • Some elevations of judges raise eyebrows, while some are ignored.
    • Should the collegium not be more transparent than it has been in the past in the matter of the elevation and transfers of judges?

    Conclusion

    Judges cannot be shielded from citizens’ questions. After all, as a consumer of justice, the citizen has a right to know.

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

  • In news: Law Commission of India

    The Government has informed the Supreme Court that the appointment of Chairperson and Members of the 22nd Law Commission of India is under consideration.

    Why in news?

    • The setting up of the 22nd Law Commission was constituted by the Government on February 21, 2020.
    • However, no progress has been made in the appointments till date.
    • The Government invoked the ‘doctrine of separation of power’, which says that one arm of governance should not encroach into that of another.

    Issues over appointment

    • The last chairman of the law commission was retired Supreme Court judge, Justice B.S. Chauhan, who completed his tenure on 31 August 2018.
    • Subsequently, the Commission has not been reconstituted.
    • In February 2020, the Government of India announced its intention to reconstitute the Commission with no visible progress.

    About Law Commission

    • Law Commission of India is a currently-defunct executive body established by an order of the Government of India.
    • The Commission’s function is to research and advise the GoI on legal reform, and is composed of legal experts, and headed by a retired judge.
    • The commission is established for a fixed tenure and works as an advisory body to the Ministry of Law and Justice.
    • The last chairman of the Commission retired in August 2018, and since then, it has not been reconstituted.

    Colonial Background

    • The first Law Commission was established during colonial rule in India, by the East India Company under the Charter Act of 1833.
    • It was then presided by Lord Macaulay.
    • After that, three more Commissions were established in pre-independent India.

    Post-Independence functioning

    • The first Law Commission of independent India was established in 1955 for a three-year term.
    • Since then, twenty-one more Commissions have been established.

    Major reforms undertaken

    • The First Law Commission under Macaulay Itsuggested various enactments to the British Government, most of which were passed and enacted and are still in force in India.
    • These include the Indian Penal Code (first submitted in 1837 but enacted in 1860 and still in force), Criminal Procedure Code (enacted in 1898, repealed and succeeded by the Criminal Procedure Code of 1973), etc.
    • Thereafter three more Law Commissions were established which made a number of other recommendations the Indian Evidence Act (1872) and Indian Contract Act (1872), etc. being some of the significant ones.

    Role in legal reforms

    The Law Commission has been a key to law reform in India.

    • Its role has been both advisory and critical of the government’s policies
    • In a number of decisions, the Supreme Court has referred to the work done by the commission and followed its recommendations.
    • The Commission seeks to simplify procedures to curb delays and improve standards of justice.
    • It also strives to promote an accountable and citizen-friendly government that is transparent and ensures the people’s right to information.

     

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

  • In news: Two principles of Justice

    This newscard is an excerpt of the original article published in TH.

    Note: This article is of extreme theoretical nature. But it leaves scope for many vague questions for prelims as well as mains where most of us go clueless.

    Two principles of Justice

    • The concept, so-called, of “two principles of justice”, is synonymous with the name of John Rawls, a highly influential American liberal political philosopher of the last century.
    • The concept of two principles forms an encapsulation of the core principles of:
    • Freedom and equality embodied in the constitutions of any contemporary liberal democratic society
    • As such, they have acquired pre-eminence in a wide range of academic disciplines and in the arena of public policymaking.

    What are the two principles?

    • The first of Rawls’ two principles says that every citizen has the same claim to a scheme of equal basic liberties, which must also be compatible with those of every other citizen.
    • It enumerates an extensive list of basic civil and political rights, including a person’s freedom of conscience, expression and association; the right to a basic income; and the right to exercise the franchise.
    • Their resonance with the practical world of politics needs no emphasis; consider the chapter on fundamental rights in any constitution.
    • The second of Rawls’ two principles grapples with the underlying inequalities of social and economic institutions.

    How can these be reasonably justified to free and equal citizens?

    • In order to be morally defensible, the institutions must satisfy two conditions.
    1. First, they must guarantee fair equality of opportunities for competition to positions of public office and employment.
    2. Second, social and economic inequalities must be arranged in a manner that they work to the greatest benefit of the least advantaged members of society.
    • This latter postulate is Rawls’ famous “difference principle”.

    Significance of this principle

    • The political significance of Rawls’ two principles of justice obtains equally in the relative weight and primacy he assigns to their different components.
    • Between them, the first principle is accorded absolute priority over the second.
    • That is to say, the primacy of the equal basic liberties of citizens is non-negotiable in a democratic society.
    • The entitlement of each to the various liberties is as critical as they are universal and non-discriminatory.
    • Within the second principle, the first part takes precedence over the second.
    • In other words, public institutions could not appear legitimate in the eyes of citizens unless everybody could reasonably expect to enjoy the fruits of fair equality of opportunities.

     

    Try this question from CSP 2020:

    Q. One common agreement between Gandhism and Marxism is

    (a) The final goal of a stateless society

    (b) Class struggle

    (c) Abolition of private property

    (d) Economic determinism

     

    [wpdiscuz-feedback id=”yuea3fd1vc” question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

     

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