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

Civilsdaily

Login

Subject: Judiciary

  • 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.

  • [pib] Scheme for Development of Infrastructure Facilities for Judiciary

    The Union Cabinet has approved the continuation of the Centrally Sponsored Scheme (CSS) for the Development of Infrastructure Facilities for Judiciary. It also approved the decision to support the Gram Nyayalayas by proving recurring and non-recurring grants for a period of 5 years with a total outlay of Rs 50 crores.

    About the Scheme

    • A Centrally Sponsored Scheme (CSS) for Development of Infrastructure Facilities for Judiciary has been in operation since 1993-94.
    • Adequacy of judicial infrastructure is critical for the reduction of pendency and backlog of cases in Courts.
    • The primary responsibility of infrastructure development for the subordinate judiciary rests with the State Governments.
    • The present proposal provides for additional activities like the construction of lawyer halls, toilets complexes and digital computer rooms.
    • This will add to the convenience of lawyers and litigants besides reducing the digital divide.

    Why such a move?

    • Adequacy of judicial infrastructure is critical for the reduction of pendency and backlog of cases in Courts.
    • Several courts are still functioning in rented premises with insufficient space and some in dilapidated conditions without basic amenities.
    • Well-equipped judicial infrastructure facilitates the administration of justice in a manner that allows easy access and timely delivery of justice to all.

    What is Gram Nyayalayas Scheme?

    • Gram Nyayalayas were established for speedy and easy access to the justice system in the rural areas across the country.
    • The Gram Nyayalayas Act came into force on October 2, 2009.
    • In terms of Section 3(1) of the Act, it is for the State Governments to establish Gram Nyayalayas in consultation with the respective High Courts.
    • The Act authorizes Gram Nyayalaya to hold a mobile court outside its headquarters.
    • Some major reasons behind the non-enforcement include financial constraints, the reluctance of lawyers, police and other government officials.

    Features of the Gram Nyayalayas

    • Gram Nyayalaya is established generally at headquarter of every Panchayat at the intermediate level or a group of contiguous panchayat in a district where there is no panchayat at an intermediate level.
    • The Gram Nyayalayas are presided over by a Nyayadhikari, who will have the same power, enjoy the same salary and benefits of a Judicial Magistrate of First Class.
    • Such Nyayadhikari is to be appointed by the State Government in consultation with the respective High Court.

    Jurisdiction

    • A Gram Nyayalaya have jurisdiction over an area specified by a notification by the State Government in consultation with the respective High Court.
    • The Court can function as a mobile court at any place within the jurisdiction of such Gram Nyayalaya, after giving wide publicity to that regard.
    • The Gram Nyayalayas have both civil and criminal jurisdiction over the offences and nature of suits specified in the First, Second and Third schedule of the Act.
    • The pecuniary jurisdiction of the Nyayalayas are fixed by the respective High Courts.
    • Appeals in criminal matter can be made to the Sessions Court in the respective jurisdiction and in civil matters to the District Court within a period of one month from the date of judgment.

    Trials

    • Gram Nyayalayas can follow special procedures in civil matters, in a manner it deem just and reasonable in the interest of justice.
    • Civil suits are proceeded on a day-to-day basis, with limited adjournments and are to be disposed of within a period of six months from the date of institution of the suit.
    • In execution of a decree, the Court can allow special procedures following rules of natural justice.
    • Gram Nyayalayas allow for conciliation of the dispute and settlement of the same in the first instance.
    • They have been given the power to accept certain evidence which would otherwise not be acceptable under the Indian Evidence Act.

  • Collegium system’s role in protecting democracy

    Context

    Judiciary is being challenged, from within and outside. It must shield itself from further erosion of its independence and competence by scrupulously following the law, as declared by the Supreme Court (SC) itself.

    How the Collegium helped to secure the independence of judiciary

    • In 1993, the SC held the following:
    • The process of appointment of Judges to the Supreme Court and the High Courts is an integrated ‘participatory consultative process’.
    • The process aims at selecting the best and most suitable persons available for appointment.
    • The Collegium consists of the CJI and the four senior-most judges of the SC and high courts.
    • It was devised to ensure that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary.
    • By judicial interpretation, the Supreme Court re-interpreting Article 124 and 214 of the Constitution empowered the judiciary to make appointments to the higher judiciary to secure the rule of law.

    Threat to the judicial independence

    • The framers of the Constitution were alive to the likely erosion of judicial independence.
    • On May 23, 1949, K T Shah stated that the Judiciary, which is the main bulwark of civil liberties, should be completely separate from and independent of the Executive, whether by direct or by indirect influence.
    • In  2016, the Supreme Court struck down a constitutional amendment for creating the National Judicial Appointments Commission (NJAC).
    • The SC strongly disapproved of any role for the political executive in the final selection and appointment of judges.
    • The SC said that “reciprocity and feelings of payback to the political executive” would be disastrous to the independence of the judiciary.

    Consider the question “How the Collegium system helped the Judiciary secure its independence? What are the issues with it?”

    Conclusion

    The selection of deserving judges is essential to ensure the independence of the judiciary. The Collegium must do its best in this task.

    Back2Basics: About the National Judicial Appointments Commission

    • The NJAC or National Judicial Appointments Commission sought to change the system, where judges would have been appointed by a commission where the legislative and the executive would have had a role.
    • The NJAC was supposed to comprise of the Chief Justice of India (Chairperson, ex-officio), two other senior judges of the Supreme Court, The Union Minister of Law and Justice, ex-officio and two eminent persons, to be appointed by the Chief Justice of India, Prime Minister of India, and Leader of Opposition in the Lok Sabha.
    • The bill was passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014, and became an Act.
    • The NJAC replaced the collegium system for the appointment of judges.
    • The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in India, and the President gave his assent on 31 December 2014.
    • The NJAC Act became effective from April 13, 2015.
    • The NJAC enjoyed support from the Supreme Court Bar Association and many legal luminaries but was also challenged by some lawyer associations and groups before the Supreme Court of India through Writ Petitions.
    • A three-judge bench of the Supreme Court referred the matter to a Constitution Bench that heard different arguments for over a month.
    •  Finally, on October 16, a five-judge bench of the Supreme Court declared the 99th Constitutional Amendment Act and the NJAC Act 2014 “unconstitutional and void”.

  • What is Tele-Law Scheme?

    The Law Ministry recently commemorated an event to mark the coverage of more than nine lakh beneficiaries of the government’s tele-law scheme, using common service centres (CSCs) to provide justice across the country.

    Tele-Law Scheme

    • The concept of Tele-Law is to facilitate the delivery of legal advice through a panel of lawyers stationed at the State Legal Services Authorities (SALSA) and CSC.
    • Tele-Law means the use of communications and information technology for the delivery of legal information and advice.
    • The project initiates to connect citizens with lawyers through video conferencing facilities by the Para-Legal Volunteers stationed at identified 50,000 CSCs.
    • This e-interaction between lawyers and people would be through the video-conferencing infrastructure available at the CSCs.

    Features of the program

    • Under this programme, smart technology of video conferencing, telephone/instant calling facilities available at the vast network of CSC.
    • It enables anyone to seek legal advice without wasting precious time and money.
    • The service is free for those who are eligible for free legal Aid as mentioned under Section 12 of the Legal Services Authority Act, 1987.
    • For all others, a nominal fee is charged.

    Back2Basics: Free legal aid in India

    • Article 21 of the Constitution of India states, “No person shall be deprived of his life or personal liberty except according to procedure established by law”.
    • Hence ensuring legal aid to everyone is necessary for ensuring substantive equality.
    • Article 39A of the Constitution of India provides for free legal aid to the poor and weaker sections of the society, to promote justice on the basis of equal opportunity.
    • Articles 14 and 22(1) also make it obligatory for the State to ensure equality before the law and a legal system that promotes justice on a basis of equal opportunity to all.

  • Issues with the UAPA and role of judiciary

    Context

    Father Stan Swamy passed away at a private hospital in Mumbai on July 5. Fr. Swamy was arrested by the National Investigation Agency (NIA), under the Unlawful Activities (Prevention) Act (UAPA).

    How Supreme Court judgment leaves the scope for misuse of UAPA

    • The Supreme Court’s April 2019 decision in National Investigation Agency vs Zahoor Ahmad Shah Watali on the interpretation of the UAPA has affected all downstream decisions involving the statute.
    • This decision has created a new doctrine.
    • According to the decision, in considering bail applications under the UAPA, courts must presume every allegation made in the First Information Report to be correct.
    • Further, bail can now be obtained only if the accused produces material to contradict the prosecution.
    • In other words, the burden rests on the accused to disprove the allegations, which is virtually impossible in most cases.
    • The decision has essentially excluded the admissibility of evidence at the stage of bail.
    • By doing so, it has effectively excluded the Evidence Act itself, which arguably makes the decision unconstitutional.
    • Due to the Supreme Court judgment, High Courts have their hands tied, and must perforce refuse bail, as disproving the case is virtually impossible.
    • The Delhi High Court recently granted bail to three young activists arrested under UAPA in a conspiracy relating to the 2020 riots in Delhi.
    • The Supreme Court reportedly expressed surprise and gave the direction that the decision will “not to be treated as precedent by any court” to give similar reliefs.

    Misuse of the UAPA

    • With such high barriers of proof, it is now impossible for an accused to obtain bail, and is in fact a convenient tool to put a person behind bars indefinitely.
    • This is being abused by the government, police and prosecution liberally: now, all dissenters are routinely implicated under charges of sedition or criminal conspiracy and under the UAPA.
    •  In multiple instances, evidence is untenable, sometimes even arguably planted, and generally weak overall.
    • But as a consequence of UAPA being applied, the accused cannot even get bail.

    Way forward

    • If we want to prevent the misuse, the decision in the Watali case must be urgently reversed or diluted, otherwise, we run the risk of personal liberties being compromised very easily.

    Conclusion

    The provision of the act leaves the scope for misuse and therefore judiciary and legislature need to take steps to provide safeguards to prevent the misuse.