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Subject: Judiciary

  • Rule of Law vs Rule by Law

    What makes the Rule of Law different from the Rule by Law? It is the idea of justice and equity that separates the two. The article explains the principles that emerge as the basis of the Rule of law and the role of the judiciary in ensuring their constitutionality.

    Understanding law

    • Law, in its most general sense, is a tool of social control that is backed by the sovereign.
    • However, such a definition of law can be used not only to render justice, it can also be used to justify oppression.
    • Therefore it is argued that a law cannot really be classified as a “law” unless it imbibes within itself the ideals of justice and equity.
    • So, any law backed by a sovereign must be tempered by certain ideals or tenets of justice.
    • Only a state that is governed by such law, can be said to have the Rule of Law.
    • The British colonial power used the law as a tool of political repression, enforcing it unequally on the parties, with a different set of rules for the British and for the Indians.
    •  It was an enterprise famous for “Rule by Law”, rather than “Rule of Law.

    Four principles of rule of law

    • Clarity and accessibility: Laws must be clear and accessible, the people at least ought to know what the laws are.
    • Another implication of this principle is that they should be worded in simple, unambiguous language.
    • Equality: An important aspect of equality before law is having equal access to justice.
    • This guarantee of equal justice will be rendered meaningless if the vulnerable sections are unable to enjoy their rights because of their poverty or illiteracy or any other kind of weakness.
    • Another aspect is the issue of “gender equality”.
    • Participation of people: The third principle, the “right to participate in the creation and refinement of laws”.
    • The very essence of a democracy is that its citizenry has a role to play, directly or indirectly, in the laws that govern them.
    • In India, it is done through elections.
    • The idea that people are the ultimate sovereign is also to be found in notions of human dignity and autonomy
    • Strong independent judiciary: The fourth principle stemsp from the idea that the judiciary is the “guardian” of the Constitution.
    • The judiciary is the primary organ which is tasked with ensuring that the laws that are enacted are in line with the Constitution.

    Independent judiciary and role of media

    • The judiciary cannot be controlled, directly or indirectly, by the legislature or the executive, or else the Rule of Law would become illusory.
    • At the same time, judges should not be swayed by the emotional pitch of public opinion either, which is getting amplified through social media platforms.
    • Judges have to be mindful of the fact that the noise thus amplified is not necessarily reflective of what is right and what the majority believes in.
    • Therefore, media trials cannot be a guiding factor in deciding cases.
    • It is, therefore, extremely vital to function independently and withstand all external aids and pressures.
    • While there is a lot of discussion about the pressure from the executive, it is also imperative to start a discourse as to how social media trends can affect the institutions.

    Conclusion

    The importance of the judiciary shouldn’t blind us to the fact that the responsibility of safeguarding constitutionalism lies not just with the courts. All the three organs of the state, i.e., the executive, legislature and the judiciary, are equal repositories of constitutional trust.

  • Issues faced by India’s sexual minorities

    The article highlights the plight of sexual minorities despite the landmark judgments by the Supreme Court.

    Role played by the judiciary

    • The Delhi High Court’s verdict in Naz Foundation vs Government of NCT of Delhi (2009) was a landmark in the law of sexuality and equality jurisprudence in India.
    • The court held that Section 377 offended the guarantee of equality enshrined in Article 14 of the Constitution, because it creates an unreasonable classification and targets homosexuals as a class.
    • In a retrograde step, the Supreme Court, in Suresh Kumar Koushal vs Naz Foundation (2013), reinstated Section 377 to the IPC.
    • However, the Supreme Court in Navtej Singh Johar & Ors. vs Union of India (2018) declared that the application of Section 377 IPC to consensual homosexual behaviour was “unconstitutional”.
    • This Supreme Court judgment has been a great victory to the Indian individual in his quest for identity and dignity.
    • It also underscored the doctrine of progressive realisation of rights.

    No legal sanction to same-sex marriage

    • Despite the judgments of the Supreme Court, there is still a lot of discrimination against sexual minorities in matters of employment, health and personal relationship.
    • The Union of India has recently opposed any move to accord legal sanction to same-sex marriages in India.
    • The Union of India stated that the decriminalisation of Section 377 of the Indian Penal Code does not automatically translate into a fundamental right for same sex couples to marry. 
    • The U.S. Supreme Court, in Obergefell vs Hodges (2015) underscored the emotional and social value of the institution of marriage and asserted that the universal human right of marriage should not be denied to a same-sex couple.
    • Indian society and the state should synchronise themselves with changing trends.

    Need to amend Article 15 to prohibit discrimination based on gender or sexual orientation

    • Article 15 secures the citizens from every sort of discrimination by the state, on the grounds of religion, race, caste, sex or place of birth or any of them.
    • The grounds of non-discrimination should be expanded by including gender and sexual orientation.
    • In May 1996, South Africa became the first country to constitutionally prohibit discrimination based on sexual orientation.
    • The United Kingdom passed the “Alan Turing law” in 2017 which ‘granted amnesty and pardon to the men who were cautioned or convicted under historical legislation that outlawed homosexual acts’.

    Way forward

    • Justice Rohinton F. Nariman had directed in Navtej Singh Johar & Ors., the Government to sensitise the general public and officials, to reduce and finally eliminate the stigma associated with LGBTQ+ community through the mass media and the official channels.
    • School and university students too should be sensitised about the diversity of sexuality to deconstruct the myth of heteronormativity.
    • Heteronormativity is the root cause of hetero-sexism and homophobia.

    Conclusion

    It is time for change, but the burden should not be left to the powers that be. The onus remains with the civil society, the citizenry concerned and the LGBTQ+ community itself.

  • What is Recusal of Judges?

    In the last week, two Supreme Court judges have recused themselves from hearing cases relating to West Bengal.

    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 are 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.

  • Significance of recent judgments in UAPA cases

    Recent judgements involving UAPA highlights the issues with certain provisions resulting in long years of undertrial imprisonment.

    Context

    In the past week, three seminal judgments involving the Unlawful Activities (Prevention) Act, 1967 (UAPA) have been delivered. While these judgments are welcome developments, they also remind us that thousands continue to languish under the UAPA regime.

    Issues with the provisions of UAPA

    • Originally enacted in 1967, the UAPA was amended to be modelled as an anti-terror law in 2004 and 2008.
    • The period of detention is increased, enlarging the period of custody prior to which default bail cannot be granted.
    • Regular bail is subject to the satisfaction of the judge that no prima facie case exists.
    • Bail apart, the dilatory trial procedures ensure lengthy periods of pre-trial incarceration for the accused who are presumed guilty of heinous terror crimes.

    NCRB data reveal long years of undertrial imprisonment

    • As per the National Crime Records Bureau (NCRB) data, a total of 4,231 FIRs were filed under various sections of the UAPA between 2016 and 2019.
    •  While the number of acquittals is low,  the real picture emerges in the pendency rates.
    • The pendency rate at the level of police investigation is very high, at an average of 83 per cent.
    • This denotes that chargesheets are filed by the police on an average in about 17 per cent of the total cases taken up for investigation.
    • The rate of pendency at the level of trial is at an average of 95.5 per cent.
    • This indicates that trials are completed every year in less than 5 per cent cases.

    What did the courts say in various judgements?

    • The Supreme Court, in Union of India v K A Najeeb, held that despite restrictions on bail under the UAPA, constitutional courts can still grant bail on the grounds that the fundamental rights of the accused have been violated.
    • In Asif Iqbal Tanha v State of NCT of Delhi, the Delhi High Court took this reasoning a step further, holding that it would not be desirable for courts to wait till the accused’s rights to a speedy trial are entirely vitiated before they are set at liberty.
    • Courts should exercise foresight, and in cases with hundreds of prosecution witnesses where a trial will not see a conclusion for years to come, courts should apply the principles laid down in Najeeb.

    Way forward

    •  Even within the constraints of the UAPA, much can be achieved if a responsive and independent judiciary follows the basic principles of natural justice and due process.
    • But access to the judiciary remains limited for most of the thousands incarcerated under this widely-used law.

    Conclusion

    The governments need to consider the issue of pendency of cases under UAPA and take steps to address the issues by either repealing certain provisions or ensuring speedy trials.

  • Balancing right to be forgotten with fair criticism and accountability

    The article discusses the interplay between right to be forgotten and the right of the public to access courts of record, concepts of fair criticism and accountability.

    Context

    The Delhi High Court recently ordered the removal of one of its own judgments from easy access. The High Court recognised that the petitioner may have a right to be forgotten, which must be balanced with the right of the public to access courts of record.

    Right to be forgotten

    • In 2017, the Supreme Court recognised the right to be forgotten as being under the ambit of the right to privacy (specifically, informational privacy) under the Constitution.
    • The Supreme Court observed that a lot of personal information may serve no “legitimate interest”, was “incorrect”, or was not “necessary” or “relevant”.
    • For now, individuals may request data hosts to take down some content, and it may be taken down based on the policies of the respective hosts.
    • There is a general consensus that people should be allowed to modify or delete information uploaded by themselves.
    • However, whether this extends to information uploaded by third parties is uncertain.
    • The right to be forgotten is, generally, the right to have information about a person removed from public access.

    Balancing between right of the public

    • The Delhi High Court recognised that the petitioner may have a right to be forgotten, which must be balanced with the right of the public to access courts of record.
    • Judgments are published for good reasons.
    • Trials held under public scrutiny act as a check against judicial caprices and help in enhancing the confidence of the public in the fairness and objectivity of the administration of justice.
    • The Supreme Court has made is clear that the right to be forgotten was subject to reasonable restrictions based on countervailing rights such as free speech.

    Consider the question “What is right to be forgotten and how it is related to the right to privacy? Examine the issues related to the implementation of the right to be forgotten.”

    Way forward

    • The High Court could have ordered that the name and personal details of the petitioner be redacted while maintaining public access to the judgment itself.

    Conclusion

    The right to be forgotten needs to be studied along with the concepts of fair criticism and accountability.

  • A national consensus on removal of sedition law is called for

    Is the government entitled to the love and affection of the citizens? Answer to this question lies in the Kedar Nath judgment recently invoked by the Supreme Court in a case against a journalist. The article deals with this issue.

    About the Kedar Nath judgement

    • A two-judge bench of the Supreme Court observed that every journalist is entitled to the protection under the Kedar Nath judgment (1962) on the petition filed by journalist Vinod Dua.
    • The court entertained Dua’s writ petition under Article 32.
    • In the Kedar Nath judgement, the apex court had held that a citizen has the right to say or write whatever he likes about the government or its measures by way of criticism so long as he does not incite people to violence against the government or with the intention of creating public disorder.
    • Section 124A read along with explanations is not attracted without such an allusion to violence. 

    Increasing use of the sedition law

    • NCRB data shows that between 2016 to 2019, there has been a whopping 160 per cent increase in the filing of sedition charges with a conviction rate of just 3.3 per cent.
    • Of the 96 people charged in 2019, only two could be convicted.
    • A number of CAA (Citizenship Amendment Act) protesters are facing sedition charges.

    Background of Section 124-A

    • Section 124-A was not a part of the original Indian Penal Code drafted by Lord Macaulay and treason was confined just to levying war.
    • It was inserted in 1870 in response to the Wahabi movement that had asked Muslims to initiate jihad against the colonial regime.
    • It was argued that Wahabis are going from village to village and preaching that it was the sacred religious duty of Muslims to wage a war against British rule.

    Way forward

    • In 2018, the Law Commission had recommended that the sedition law should not be used to curb free speech.
    •  Let the criminal law revision committee working under the Ministry of Home Affairs make the bold recommendation of dropping the draconian law.
    • A political consensus needs to be forged on this issue.

    Conclusion

    No government, as Mahatma Gandhi told Judge R S Broomfield, has a right to love and affection and people in a free country committed to the liberty of thought and freedom of expression should not be criminally punished for expressing their opinion about the government.

  • App to view live proceedings of SC launched for media persons

    App to view virtual proceedings

    • Chief Justice of India launched a mobile app that would allow media persons to view the Supreme Court’s virtual proceedings live on their mobile phones.
    • The role of the media assumes importance in the process of disseminating information.
    • Justice A.M. Khanwilkar said the facility, which is now temporary, could be made permanent in the future depending on the operational issues.

    ‘Indicative Notes’ on the SC website

    • The CJI also launched a new feature in the Supreme Court’s official website called ‘Indicative Notes’.
    • This feature is aimed at providing concise summaries of landmark judgments in an easy-to-understand format.
    • This will serve as a useful resource for media persons and the general public who wish to be better informed about the rulings of the court.

  • Reading Maratha quota verdict

    • A five-judge Constitution Bench of the Supreme Court on Wednesday struck down the Maharashtra law granting reservation to the Maratha community.
    • The court had framed six questions of law on the issue.
    • The court unanimously agreed on three of those issues, while the verdict was split 3:2 on the other three.

    Issue 1:  Whether Indra Sawhney judgment needs to be revisited

    • One of the key issues was to examine whether the 1992 landmark ruling by the nine-judge bench in Indra Sawhney v Union of India had to be revisited.
    • First, it said that the criteria for a group to qualify for reservation is “social and educational backwardness”.
    • Second, it reiterated the 50% limit to vertical quotas reasoning that it was needed to ensure “efficiency” in administration.
    • However, the court said that this 50% limit will apply unless in “exceptional circumstances”.
    • The Maratha quota exceeded the 50% ceiling. 
    • The arguments by state governments before the court was that the Indra Sawhney verdict must be referred to a 11-judge Bench for reconsideration since it laid down an arbitrary ceiling which the Constitution does not envisage.
    • The court said that the 50% ceiling, although an arbitrary determination by the court in 1992, is now constitutionally recognized and held that there is no need to revisit the case.

    Issue 2 and 3: Does Maratha quota law come under exceptional circumstances

    • The state government’s argument was that since the population of backward class is 85% and reservation limit is only 50%, an increase in reservation limit would qualify as an extraordinary circumstance.
    • All five judges disagreed with this argument.
    • The bench ruled that the above situation is not extraordinary.

    Issue 4,5 and 6: Validity of 102nd Amendment

    • The Constitution (One Hundred and Second Amendment) Act, 2018 gives constitutional status to the National Backward Classes Commission.
    • The Amendment also gives the President powers to notify backward classes.
    • The Bench unanimously upheld the constitutional validity of the 102nd Amendment but differed on the question of whether it affected the power of states to identify socially and economically backward classes (SEBCs).
    • Attorney General, appearing for the central government, clarified that this was not the intention of the law.
    • The Attorney General argued that it is inconceivable that no State shall have the power to identify backward class”.
    • The Attorney General explained that the state government will have their separate list of SEBCs for providing reservations in state government jobs and education.
    • The Parliament will only make the central list of SEBCs which would apply for central government jobs.
    • However, the Supreme Court held that “the final say in regard to inclusion or exclusion (or modification of lists) of SEBCs is firstly with the President, and thereafter, in case of modification or exclusion from the lists initially published, with the Parliament”.
    • This raises a question: How does this impact interventions by other states to provide reservations for other communities, for example Jats in Haryana and Kapus in Andhra?
    • The majority opinion essentially says that now the National Backward Classes Commission must publish a fresh list of SEBCs, both for states and the central list.
    • The Supreme Court also issued a direction under Article 142 of the Constitution of India which says that till the publication of the fresh list the existing lists will continue to operate.

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    BACK2BASICS

    • National Commission for Backward Classes is a constitutional body (102nd amendment 2018 in the constitution to make it a constitutional body) (Article 338B of the Indian Constitution).
    • It was constituted pursuant to the provisions of the National Commission for Backward Classes Act, 1993.
    • According to Article 338B, Commission shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President may by rule determine. The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal.

  • Supreme Court struck down law for reservation to Maratha community

    About the judgment

    • The Supreme Court on Wednesday struck down the provisions of a Maharashtra law providing reservation to the Maratha community.
    • It rejected demands to revisit the verdict or to refer it to a larger Bench for reconsideration.

    What the Supreme Court said

    • The Bench said that “providing reservation for the advancement of any socially and educationally backward class in public services is not the only means and method for improving the welfare of backward class”
    • The 50% rule is to fulfill the objective of equality as engrafted in Article 14 of which Articles 15 and 16 are facets.
    • To change the 50% limit is to have a society that is not founded on equality but based on caste rule.
    • If the reservation goes above the 50% limit, it will be a slippery slope, the political pressure, make it hard to reduce the same.
    • It added that “the Constitution (Eighty-first Amendment) Act, 2000 by which sub-clause (4B) was inserted in Article 16 makes it clear that ceiling of 50% “has now received constitutional recognition”
    • The Supreme Court disapproved the findings of the Justice M G Gaikwad Commission on the basis of which Marathas were classified as a Socially and Educationally Backward Class.
    • It said that “the data collected and tabled by the Commission as noted in the report clearly proves that Marathas are not socially and educationally backward class”.

    SC upheld 102nd Constitution amendment

    • The SC also upheld the 102nd Constitution amendment, saying it does not violate the basic structure of the Constitution.
    • The bench, by 3:2 majority, held that after the amendment, only the President will have the power to identify backward classes in a state or Union Territory.
    • The amendment inserted Articles 338B and 342A in the Constitution.
    • Article 338B deals with the structure, duties and powers of the National Commission for Backward Classes.
    • Article 342A speaks about the power of the President to notify a class as Socially and Educationally Backward (SEBC) and the power of Parliament to alter the Central SEBC list. He can do this in consultation with Governor of the concerned State. However, law enacted by Parliament will be required if the list of backward classes is to be amended.

    ————————————//————————————————-

    BACK2BASICS

    • 102nd Constitution Amendment Act, 2018 provides constitutional status to the National Commission for Backward Classes (NCBC).
    • The Commission consists of five members including a Chairperson, Vice-Chairperson and three other Members appointed by the President by warrant under his hand and seal. It has the authority to examine complaints and welfare measures regarding socially and educationally backward classes.
    • Previously NCBC was a statutory body under the Ministry of Social Justice and Empowerment.

     

  • Judicial federalism

    The article discusses the idea of judicial federalism and autonomy of the High Courts.

    Issue of transfer of cases from High Courts to Supreme Court

    • Under Article 139A of the Constitution, the Supreme Court does have the power to transfer cases from the High Courts to itself if cases involve the same questions of law.
    • In Parmanand Katara v. Union of India (1989), the Supreme Court underlined that the right to emergency medical treatment is part of the citizen’s fundamental rights.
    • As such, constitutional courts owe a duty to protect this right.
    • In the face of a de facto COVID-19 health emergency, the High Courts of Delhi, Gujarat, Madras and Bombay, among others, have done exactly that.
    • These High Courts among others have directed the state governments on various issues related to COVID-19 health emergency.
    • However, Supreme Court issued an order asking the State governments and the Union Territories to “show cause why uniform orders” should not be passed by the Supreme Court.
    • Therefore, the Supreme Court indicated the possibility of the transfer of cases to itself.

    Issues with the SC’s move

    • According to the Seventh Schedule of the Constitution, public health and hospitals come under the State List as Item No. 6.
    • There could be related subjects coming under the Union List or Concurrent List.
    • Also, there may be areas of inter-State conflicts.
    • But as of now, the respective High Courts have been dealing with specific challenges at the regional level, the resolution of which does not warrant the top court’s interference.
    • In addition to the geographical reasons, the constitutional scheme of the Indian judiciary is pertinent.
    •  In L. Chandra Kumar v. Union of India (1997), the Supreme Court itself said that the High Courts are “institutions endowed with glorious judicial traditions” since they “had been in existence since the 19th century”.
    • Even otherwise, in a way, the power of the High Court under Article 226 is wider than the Supreme Court’s under Article 32.
    • This position was reiterated by the court soon after its inception in State of Orissa v. Madan Gopal Rungta (1951).
    • Judicial federalism has intrinsic and instrumental benefits which are essentially political.
    • The United States is an illustrative case.
    • The U.S. Supreme Court reviews “only a relative handful of cases from state courts” which ensures “a large measure of autonomy in the application of federal law” for the State courts.
    • The need for a uniform judicial order across India is warranted only when it is unavoidable — for example, in cases of an apparent conflict of laws or judgments on legal interpretation.
    • Otherwise, autonomy, not uniformity, is the rule.
    • Decentralisation, not centrism, is the principle.

    Consider the question “Under Article 139A of the Constitution, the Supreme Court does have the power to transfer cases from the High Courts to itself if cases involve the same questions of law. However, transferring such cases should not impinge on judicial federalism. Comment.”

    Conclusion

    In the COVID-19-related cases, High Courts across the country have acted with an immense sense of judicial responsibility. This is a legal landscape that deserves to be encouraged. To do this, the Supreme Court must simply stay away.