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Subject: Judiciary

  • It is time to end judicial feudalism in India

    Context

    The August 11 order of the Himachal Pradesh High Court directed that “hereinafter, all the courts in the state other than the high court shall be referred to as district judiciary”. Furthermore, “these courts shall not be referred to as subordinate court” but as trial courts.

    Issues with the judicial hierarchy Vs. hierarchy of judges

    • The expression “subordinate courts” used by Part VI, Chapter 6, of the Constitution of India cannot signify that judges are subordinate.
    • The term subordinate has implications for the independence of the judiciary, entrenched with and since Kesavananda Bharati (1973) as the essential feature of the basic structure of the Indian Constitution.
    • No judge is “subordinate” to any other, constitutionally judges are limited in the jurisdiction but also supreme within their own jurisdiction.
    • However, Article 235 speaks of “control over subordinate courts”.
    • This Article created the notion of subordination by describing these entities and agents as persons “holding a post inferior to the post of a district judge”.

    Constitutional provision

    • The Constitution no doubt contemplates a hierarchy of jurisdictions, but no judge, acting within her jurisdiction, is “inferior” or “subordinate”.
    • On appeal, or review, a court with ample jurisdiction may overturn and even pass judicial strictures but this does not make the concerned courts “lower” or “inferior” courts.
    • Supervisory powers: High courts always have considerable powers of superintendence on the administrative side but this “supervisory“ power has been recognised by the apex court as a “constitutional power” and subject to the right of appeal as granted by Article 235.
    • While the Constitution allows “supervision”, it does not sanction judicial despotism.
    • Despite this, arbitrary practices in writing confidential reports of district justices seem to continue.

    Way forward

    • Constitutional amendment: A complete recasting of Article 235 is needed, which does away with the omnibus expression of “control” powers in the high courts.
    • The amendment should specifically require the high courts to satisfy the criteria flowing from the principles of natural and constitutional justice and all judicial officers who fulfil due qualification thresholds should be treated with constitutional dignity and respect.
    • Collegiate system at high court’s level: For most matters (save elevation), senior-most district judges and judges of the high courts should constitute a collegiate system to facilitate judicial administration, infrastructure, access, monitoring of disposal rates, minimisation of undue delays in administration of justice, alongside matters concerning transfers, and leave.
    •  If an ACR is to be adversely changed in the face of a consistent award for a decade or more, it should be a collegiate act of the five senior-most justices, including the Chief Justice of the High Court.
    • CJI Ramana has recently agreed in principle, following the request of the Supreme Court Bar Association, that chief justices of the high courts should consider lawyers practising in the Supreme Court for elevation to the high courts.

    Consider the question “Do you agree with the view that the Constitution contemplates a hierarchy of jurisdictions, but no judge, acting within her jurisdiction, is “inferior” or “subordinate”. Give reason in support of your argument.”

    Conclusion

    The changes suggested here needs to be implemented to ensure the independence of the judiciary at all levels.

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  • Collegium recommends nine judges for Supreme Court

    The Supreme Court Collegium, led by Chief Justice of India (CJI) N.V. Ramana has recommended to the government nine names for appointment as apex court judges.

    Significant appointments

    • The Collegium has for the first time, in one single resolution, recommended three women judges.
    • It has thus sent a strong signal in favor of the representation of women in the highest judiciary.
    • The process scripted history by naming Karnataka High Court judge B.V. Nagarathna, who may become India’s first woman CJI.

    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 by 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.

    Scope for transparency

    • 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 Collegium’s resolutions are now posted online, but reasons are not given.

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    Back2Basics:

  • SC questions govt over Tribunal Reforms Bill

    The Supreme Court has challenged the government to produce material showing its reasons for introducing the Tribunal Reforms Bill of 2021, which abolishes nine appellate tribunals and revives provisions of an ordinance struck down by the Supreme Court, in the Parliament.

    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.

    Tribunals Reforms Bill, 2021

     

    What is the recent news?

    • A three-judge Bench led by CJI has put the government on the dock about the complete absence of material justifying the Bill and also the lack of proper debate in the Parliament.
    • The provisions regarding conditions of service and tenure of Tribunal Members and Chairpersons were struck down by the Supreme Court.
    • However, the same provisions re-appeared in the Tribunal Reforms Bill recently passed.
    • The court has also noted its reservations against the complete dissolution of some tribunals.

    What happens to cases pending before the tribunals are dissolved?

    • These cases will be transferred to High Courts or commercial civil courts immediately. Legal experts have been divided on the efficacy of the government’s move.
    • While on the one hand, the cases might get a faster hearing and disposal if taken to High Courts, experts fear that the lack of specialization in regular courts could be detrimental to the decision-making process.
    • For example, the FCAT exclusively heard decisions appealing against decisions of the censor board, which requires expertise in art and cinema.

    Observations made by the Court

    • 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 to date.
    • The CJI repeated his question of whether the government was moving towards closing down the tribunals.

    A new flashpoint between Executive and Judiciary

    • The verdict discussed the possibility of legislation overriding the court’s directions.
    • In other cases, too, the SC and Parliament have been at loggerheads on the issue of rationalization of tribunals.

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  • Issues related to Judicial appointment in India

    Context

    Recommendations of some judges for appointment by the collegium raises the issue of changes in the collegium system.

    Background of the collegium system

    • During the 1970s, the political leaning of a candidate had become a major consideration in the matter of appointment of judges.
    • Therefore, it was felt that the role of the state in the appointment of judges in terms of Article 124 (2) and 217 needed to be reconsidered.
    • But then, in 1982 in S P Gupta’s case, the Supreme Court bench of five judges gave its approval to the primacy of the state in the matter of appointment of judges.
    • However, that judgment was overturned subsequently by a bench of nine judges.
    • Primacy of CJI:  It held that the provisions for consultation with the Chief Justice of India, and the Chief Justices of the high courts in Articles 124 (2) and 217 of the Constitution were introduced because of the realisation that the Chief Justice is best equipped to know and assess the worth of a candidate, and his/her suitability for appointment as a superior judge.
    • Initiation of proposal by CJI: It also held that the initiation of the proposal for appointment of a judge to the SC must be made by the CJI after wider consultation with senior judges, and likewise in the case of high courts.
    • Confirmation of CJI: It was also held that no appointment of any judge to the SC or any high court can be made unless it conforms with the opinion of the CJI.
    • Thus, what is known as the “collegium system” was born.
    • Striking down of NJAC: In 2014, the government tried to make changes to the collegium system by introducing Article 124 (A) by a constitutional amendment, and by enacting National Judicial Appointments Commission Act, 2014.
    • The SC has struck down both the amendment and the Act.

    Has the collegium system succeeded?

    • Nepotism: There have been cases where the nearest relative of Supreme Court judges has been appointed as a high court judge, ignoring merit.
    • Ignoring the merit: Judges far lower in the combined All India Seniority of High Court judges were appointed to SC, and the reason assigned was that those selected were found more meritorious.

    Conclusion

    The collegium system is still the best, but it needs to weed out what is wrong in its actual working. It is hoped that the system will make course corrections in deserving cases.

  • CJI recuses himself from Andhra-Telangana Case

    The Chief Justice of India (CJI) N V Ramana (who hails from AP) recused himself from hearing Andhra Pradesh’s plea after it said “no” to the Supreme Court’s suggestion to go for mediation over a dispute with Telangana over the Krishna River dispute.

    Q. Can you list down some basic principles of judicial conduct?

    Independence, Impartiality, Integrity, Propriety, Competence and diligence and Equality are some of them as listed under the Bangalore Principles of Judicial Conduct.

    What is the Recusal of Judges?

    • Recusal is the removal of oneself as a judge or policymaker in a particular matter, especially because of a conflict of interest.
    • Recusal usually takes place when a judge has a conflict of interest or has a prior association with the parties in the case.
    • For example, if the case pertains to a company in which the judge holds stakes, the apprehension would seem reasonable.
    • Similarly, if the judge has, in the past, appeared for one of the parties involved in a case, the call for recusal may seem right.
    • A recusal inevitably leads to delay. The case goes back to the Chief Justice, who has to constitute a fresh Bench.

    Rules on Recusals

    • There are no written rules on the recusal of judges from hearing cases listed before them in constitutional courts.
    • It is left to the discretion of a judge.
    • The reasons for recusal are not disclosed in an order of the court. Some judges orally convey to the lawyers involved in the case their reasons for recusal, many do not. Some explain the reasons in their order.
    • The decision rests on the conscience of the judge. At times, parties involved raise apprehensions about a possible conflict of interest.

    Issues with recusal

    • Recusal is also regarded as the abdication of duty. Maintaining institutional civilities is distinct from the fiercely independent role of the judge as an adjudicator.
    • In his separate opinion in the NJAC judgment in 2015, Justice Kurian Joseph highlighted the need for judges to give reasons for recusal as a measure to build transparency.
    • It is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case.

    Back2Basics:

    https://www.civilsdaily.com/news/krishna-water-dispute/

  • [pib] Fast Track Special Courts

    The Union Cabinet has approved the continuation of 1023 Fast Track Special Court (FTSCs) including 389 exclusive POCSO Courts for two more years.

    Fast Track Special Courts

    • Fast Track Special Courts are dedicated courts expected to ensure swift dispensation of justice.
    • They have a better clearance rate as compared to the regular courts and hold speedy trials.
    • Besides providing quick justice to the hapless victims, it strengthens the deterrence framework for sexual offenders.
    • Central Share is to be funded from Nirbhaya Fund. The Scheme was launched on 02.10.2019.
    • To bring more stringent provisions and expeditious trial and disposal of such cases, the Central Government enacted “The Criminal Law (Amendment) Act, 2018”.
    • It made provision of stringent punishment including the death penalty for perpetrators of rape.
    • This led to the establishment of the Fast Track Special Courts (FTSCs).

     Note: Article 247 gives power to Parliament to establish certain additional courts for the better administration of laws made by it or of any existing laws with respect to a matter enumerated in the Union List.

    Benefits offered by fast track courts

    • Further the commitment of the Nation to champion the cause of safety and security of women and girl child.
    • Reduce the number of pending cases of Rape & POCSO Act.
    • Provide speedy access to justice to the victims of sexual crimes and act as a deterrent for sexual offenders.
    • Fastracking of these cases will declog the judicial system of the burden of case pendency.

  • Tribunals Reforms Bill, 2021

    The Lok Sabha has hastily passed the Tribunals Reforms Bill, 2021 without any debate.

    Highlights of the Tribunals Reforms Bill, 2021

    The Bill seeks to dissolve certain existing appellate bodies and transfer their functions (such as adjudication of appeals) to other existing judicial bodies:

    Transfer of functions of key appellate bodies as proposed under the Bill:

    Acts

    Appellate Body

    Proposed Entity
    The Cinematograph Act, 1952 Appellate Tribunal High Court
    The Trade Marks Act, 1999 Appellate Board High Court
    The Copyright Act, 1957 Appellate Board Commercial Court or the Commercial Division of a High Court*
    The Customs Act, 1962 Authority for Advance Rulings High Court
    The Patents Act, 1970 Appellate Board High Court
    The Airports Authority of India Act, 1994 Airport Appellate Tribunal
    • Central government, for disputes arising from the disposal of properties left on airport premises by unauthorised occupants.
    • High Court, for appeals against orders of an eviction officer.
    The Control of National Highways (Land and Traffic) Act, 2002 Airport Appellate Tribunal Civil Court#
    The Geographical Indications of Goods (Registration and Protection) Act, 1999 Appellate Board High Court

     

    Amendments to the Finance Act, 2017:

    • The Finance Act, 2017 merged tribunals based on domain.
    • It also empowered the central government to notify rules on: (i) composition of search-cum-selection committees, (ii) qualifications of tribunal members, and (iii) their terms and conditions of service (such as their removal and salaries).
    • The Bill removes these provisions from the Finance Act, 2017.
    • Provisions on the composition of selection committees and term of office have been included in the Bill. Qualification of members and other terms and conditions of service will be notified by the central government.

  • Biocentric jurisprudence for nature

    Context

    In a recent ruling, the Supreme Court of India has sought to move away from an anthropocentric basis of law.

    Biocentrism Vs. Anthropocentrism

    • Anthropocentrism argues that of all the species on earth humans are the most significant and that all other resources on earth may be justifiably exploited for the benefit of human beings.
    • The philosophy of biocentrism holds that the natural environment has its own set of rights which is independent of its ability to be exploited by or to be useful to humans.
    • Biocentrism often comes into conflict with anthropocentrism.

    Supreme Court of India upholds biocentric principles

    • The Great Indian Bustard is a gravely endangered species, with hardly about 200 alive in India today.
    • The overhead power lines have become a threat to the life of these species as these birds frequently tend to collide with these power lines and get killed.
    • Recently, the Supreme Court in M.K. Ranjitsinh & Others vs Union of India & Others, said that in all cases where the overhead lines in power projects exist, the governments of Rajasthan and Gujarat shall take steps forthwith to install bird diverters.
    • In protecting the birds, the Court has affirmed and emphasised the biocentric values of eco-preservation.
    • A noteworthy instance of the application of anthropocentrism in the legal world is in that of the “Snail darter” case in the United States.
    • The Supreme Court of the United States of America in Tennessee Valley Authority vs Hill, had held that since the “Snail darter” fish was a specifically protected species under the Act, the executive could not proceed with the reservoir project.

    Human role in extinction of species

    • About 50 years ago, there were 4,50,000 lions in Africa. Today, there are hardly 20,000.
    • Indiscriminate monoculture farming in the forests of Borneo and Sumatra is leading to the extinction of orangutans.
    • Rhinos are hunted for the so-called medicinal value of their horns and are slowly becoming extinct.
    • From the time humans populated Madagascar about 2,000 years ago, about 15 to 20 species of Lemurs, which are primates, have become extinct.
    • The compilation prepared by the International Union for Conservation of Nature lists about 37,400 species that are gravely endangered; and the list is ever growing.

    Evolution of Right of Nature laws in Constitutions

    • Pieces of legislation are slowly evolving that fall in the category of the “Right of Nature laws”.
    • These seek to travel away from an anthropocentric basis of law to a biocentric one.
    • The Constitution of India is significantly silent on any explicitly stated, binding legal obligations we owe to our fellow species and to the environment that sustains us.
    • It is to the credit of the Indian judiciary that it interpreted the enduring principles of sustainable development and read them, inter alia, into the precepts of Article 21 of the Constitution.
    • In September 2008, Ecuador became the first country in the world to recognise “Rights of Nature” in its Constitution.
    • Bolivia has also joined the movement by establishing Rights of Nature laws too.
    • In November 2010, the city of Pittsburgh, Pennsylvania became the first major municipality in the United States to recognise the Rights of Nature.
    • These laws, like the Constitution of the countries that they are part of, are still works in progress.

    Conclusion

    In times like this the Supreme Court’s judgment in M.K. Ranjithsinh upholding the biocentric principles of coexistence is a shot in the arm for nature conservation. One does hope that the respective governments implement the judgment of the Court.

  • Lokpal

    More than two years after the Lokpal came into being, the Centre is yet to appoint a director of inquiry for conducting a preliminary inquiry into graft complaints sent by the anti-corruption ombudsman.

    Who is ‘Director of Inquiry’?

    • According to the Lokpal and Lokayuktas Act, 2013, there shall be a director of inquiry, not below the rank of Joint Secretary to the GoI.
    • He/ She shall be appointed by the Central government for conducting preliminary inquiries referred to the Central Vigilance Commission (CVC) by the Lokpal.

    About the Lokpal

    • The Lokpal, the apex body to inquire and investigate graft complaints against public functionaries, came into being with the appointment of its chairperson and members in March 2019.
    • In March 2019, former SC judge Justice Pinaki Chandra Ghose was selected as the first head of the Lokpal.

    Lokpal and Lokayuktas Act, 2013

    • The Lokpal Act 2013 is anti-corruption legislation that seeks to provide for the establishment of the institution of Lokpal.
    • It seeks to inquire into allegations of corruption against certain important public functionaries including the PM, cabinet ministers, MPs, Group A officials of the Central Government etc.
    • The Bill was introduced in the parliament following massive public protests led by anti-corruption crusader Anna Hazare and his associates.
    • The Bill is one of the most widely discussed and debated Bills in India in recent times.

    Its history

    • The term Lokpal was coined in 1963 by Laxmi Mall Singhvi, a member of parliament during a parliamentary debate about grievance mechanisms.
    • The Administrative Reforms Commission (ARC) headed by Morarji Desai submitted an interim report on “Problems of Redressal of Citizen’s Grievances” in 1966.
    • In this report, ARC recommended the creation of two special authorities designated as ‘Lokpal’ and ‘Lokayukta’ for redress of citizens’ grievances.
    • Maharashtra was the first state to introduce Lokayukta through The Maharashtra Lokayukta and Upa-Lokayuktas Act in 1971.

    Also read:

    https://www.civilsdaily.com/news/explained-how-lokpal-will-form-function/

  • Interference an investigating officer can do without

    Context

    Instances of judiciary directing the investigating officer point to the need for restraint from the judiciary.

    Challenging the discretion of investigating officer

    • There have been growing instances of subordinate judicial officers, and even High Courts sometimes, directing the investigating officer to effect the arrest of a particular individual.
    • To deal with the issue, the Supreme Court of India recently made the observation that courts have no authority to direct an investigating officer to in turn direct the arrest of any particular individual connected with a crime
    • This points to the need for a slightly kindlier view of police conduct and more latitude to them in the standard operating procedures which they follow, especially when they investigate a complicated crime.
    • The Code of Criminal Procedure (CrPC) vests sufficient discretion in the investigating officer to take such decisions as arrests and searches.

    Issues with court’s directions

    • Court observations that smack of a lack of faith in police ability and integrity will make grass-root level policemen even more arbitrary than now and force them into carrying out questionable actions that will cast aspersions on an officer’s ability to think for himself.
    • Court interference in the day-to-day investigation is not only undesirable but is also not sanctioned by law.
    • Only the Supreme Court, has been vested with enormous authority and discretion by the Constitution, the lesser courts shall not give directions in the matter of arrests and searches.

    Safeguard against police misconduct

    • We need to educate the Executive and the common man that it is now well-established law that the police have to register an FIR.
    • It is mandatory that every police station in the land should register a complaint under the relevant sections of a statute the moment a cognisable offence is made out in the complaint
    • There is another safeguard against police misconduct.
    • The CrPC makes it obligatory for the investigating officer to write a diary that details the action taken every day following registration.
    • When in doubt, the competent court, which already has a copy of the first information report, can demand to see the case diary.
    • Courts should remember that the police are a well-established hierarchy that is obligated to ensure objectivity during a criminal investigation.
    • Every investigation is supervised by at least two immediate senior officers.

    Conclusion

    Judicial interference in an investigation is counterproductive to the idea of justice. Therefore, there is a need for allowing more freedom to the investigating officers in the standard operating procedure that they follow.