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Subject: Judiciary

  • 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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  • Issue of handing down the death sentence in a cursory manner

    Context

    Last week, a little over 13 years after the blasts in 2008 (in July) in Ahmedabad, Gujarat, the designated court to conduct a speedy trial decided the fate of 78 of the accused people. Within a week, the court sentenced 38 of 49 people to death.

    The debate on the death sentence

    • The death sentence grants the state the monopoly of violence.
    • This monopoly is justified by claiming that such a step prevents crime or that it is a measure of long-due justice.
    • Use in ‘rarest of rare’ case: Fundamentally, ‘rarest of rare’ is a standard that allows a court of law to use public sentiment as a judicially reliable standard in handing out the death sentence.
    • Proportionality test: India’s carceral criminal jurisprudence requires a court to calculate proportionality between crime and punishment.
    • But a death sentence is a sentence that goes beyond the confines of these calculations to deprive a person of their life — committing an act whose central value itself is immeasurable.
    • The impossibility of reform, the heinous nature of the crime, the shock to the public conscience, none of these things sufficiently justify the right of a fallible institution to take someone’s life.

    Mitigating arguments

    • After the verdict is delivered in any criminal trial, lawyers make what are called ‘mitigating arguments’ — essentially to contextualise the convict as an individual and not as the accused.
    • Unlike other trial stages where a court adjudicates between competing legal identities of an accused, the complainant, etc., in mitigation, the court hears evidence of a person’s humanity. 
    • Hearing mitigating circumstances requires — however temporarily — for the trappings of distance and formality to be stripped away so that a court may see a person instead of a convict.

    The issue in the above case

    • In this case, first, the court orally convicted ‘en masse’ several of the accused instead of declaring the charges proved against them separately.
    • The prosecution argued that the defendants should argue for mitigation before it would even disclose which convicts it intended to seek the death sentence.
    • The role attributed to each of the accused was different.
    • By equating them for mitigation purposes (individual circumstances were unaccounted for and context and circumstances were considered to be the same) and handing down a mass death sentence, the court has only opened the door for greater misuse of a questionable power to end a life without any oversight.

    Conclusion

    A permanent sentence requires us to assume that our institutions are infallible and user-proof. To cast this as a simple ‘penalty’ ignores what it truly does — and did in this case; it negates the individual for the final time.

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  • Judiciary needs more HC judges: CJI

    Chief Justice of India N.V. Ramana said there was a need to both increase the number of judges in High Courts and urgently fill existing vacancies.

    Judicial vacancy in India

    • The Indian judiciary faces high vacancies across all levels (the Supreme Court, High Courts, and subordinate courts).
    • Vacancy of judges in courts is one of the reasons for delays and a rising number of pending cases, as there are not enough judges to hear and decide cases.
    • As of today, more than four crore cases are pending across all courts in India.

    Appointing judges to the HC

    • The appointment of the judges to the high courts is governed by Article 217 of the Constitution.
    • In addition to the constitutional provisions, the process of appointments outlined in the Memorandum of Procedure (MoP) is a lengthy one.
    • It is initiated by the Chief Justice of the concerned high court who recommends the nominees to the state government.
    • Ideally, this process should begin six months prior to the occurrence of the vacancy.
    • The state government then sends the recommendation to the Union Law Ministry, which then sends it to the Supreme Court Collegium.

    HC Vacancies

    • The total sanctioned judicial strength in the 25 High Courts is 1,080.
    • However, the present working strength is 661 with 419 vacancies as on March 1.
    • The Supreme Court has been repeatedly conveying to the government its growing alarm at the judicial vacancies in High Courts.
    • Some of these High Courts are functioning only with half their sanctioned judicial strength.
    • On average, the courts suffered at least 40% judicial vacancies.

    Why is there a huge gap?

    Ans. Timeline of appointment is arbitrary

    • Appointments of High Court judges are guided by a memorandum of procedure.
    • As per this memorandum, the appointment process is to be initiated by the concerned High Court at least six months before a vacancy occurs.
    • However, the Standing Committee (2021) noted that this timeline is rarely adhered to by High Courts.
    • Further, in the final stage of the process, after receiving recommendations from the Supreme Court collegium, the executive appoints judges to the High Court.
    • No timeline is prescribed for this stage of the appointment process.

    How many judges do we need?

    • The Law Commission of India (1987) had noted the importance of manpower planning for the judiciary.
    • Lack of adequate number of judges means a greater workload per judge.
    • Thus, it becomes essential to arrive at an optimal judge strength to deal with pending and new cases in courts.
    • Over the years, different methods of calculating the required judge strength for subordinate courts (where the backlog of cases in the Indian judiciary is concentrated) have been recommended:
    Method of calculation Recommendation and its status
    Judge-to-population ratio: Optimum number of judges per million population The Law Commission of India (1987) had recommended increasing this ratio to 50 judges per million people.   For 2020, the judge-to-population ratio was 21 judges per million population.
    Rate of disposal: Number of additional judges required (to clear the existing backlog of cases and ensure that new backlog is not created) based on the average number of cases disposed per judge The Law Commission of India (2014) proposed this method.  It rejected the judge-to-population ratio method, observing that filing of cases per capita varies substantially across geographic units depending on socio-economic conditions.
    Weighted case load method: Calculating judge strength based on the disposal by judges, taking into account the nature and complexity of cases in local conditions It addresses the existing backlog of cases as well as the new flow of cases every year in subordinate courts.     In 2017, the Supreme Court accepted this model.
    Time-based weighted case load method: Calculating the required judge strength taking into account the actual time spent by judges in different types of cases at varying stages based on an empirical study Used widely in the United States, this was the long-term method recommended by the NCMS (2016) to assess the required judge strength for subordinate courts.  It involves determining the total number of ‘judicial hours’ required for disposing of the case load of each court.  The Delhi High Court used this approach in a pilot project (2017- 2018) to calculate the ideal judge strength for disposing of pending cases in certain courts in Delhi.

    Back2Basics:

    What is Collegium System?

     

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  • Sealed Cover Jurisprudence

    Some Parliamentarians and prominent figures have issued a statement expressing discontent over the Kerala High Court’s verdict upholding the transmission ban on a Malayalam news channel.

    What is the news?

    • The channel went off air as the Centre suspended its telecast over “security reasons”.
    • The High Court’s decision was based entirely on the assessment of documents presented by the MHA in a sealed cover.
    • The contents of which were not shared with the news channel.

    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 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 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 breakthrough in the investigation.