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Subject: Judiciary

  • Need for diversity and propriety in judiciary

    The article highlights the issue of women representation and its implications for the role of the judiciary.

    Improving representation of women

    • Presently, the Supreme Court is left with only one woman judge, who is also going to retire next year, after which, the SC will be left without a woman judge.
    • The collegium failed to take timely steps to elevate more women judges in the SC.
    • In the 71 years of history of the SC, there have been only eight women judges — the first was Justice Fathima Beevi, who was elevated to the bench after a long gap of 39 years from the date of establishment of the SC.
    • In the submissions filed by the AG on the issue states that improving the representation of women in the judiciary could go a long way towards attaining a more balanced and empathetic approach in cases involving sexual violence.
    • The AG also brought up the fact that there has never been a woman Chief Justice of India (CJI).

    Women representation in developed countries

    • The situation is not any different in developed countries such as the US, UK, Ireland, France and China.
    • According to the data collected by Smashboard, a New Delhi and Paris-based NGO, not only has no woman ever been appointed as the CJI, the representation of women across different courts and judicial bodies is also abysmally low.

    Way forward

    • In the last few meetings of the collegium, there has been some talk of promoting women to the apex court.
    • In this regard, if Justice B V Nagaratha of the Karnataka High Court is elevated to the Supreme Court, she could become the first woman CJI in February 2027.
    • But her elevation will lead to the supersession of 32 senior judges.
    •  Supersession itself is perceived as a threat to an independent judiciary
    • Seniority combined with merit is the sacrosanct criteria for promotion in the judiciary.
    • New CJI should secure the trust of members of his collegium to fill the backlog of 411 vacancies across high courts and six vacancies in the SC.

    Consider the question “What are the various structural issues faced by the judiciary in India? Suggest the measures to deal with them.”

    Conclusion

    A greater number of women in the Supreme Court would eventually lead to a woman CJI. This would be a gratifying change, which may mark the beginning of a new era of judicial appointments.

  • Need to address the systemic issues plaguing the judiciary

    The article highlights the issues facing the judiciary in India and emphasises the need for addressing these issues.

    Separating judiciary from the executive

    • Today, the judiciary, especially the SC, is called upon to decide a large number of cases in which the government has a direct interest.
    • These can be politically sensitive cases too.
    • The framers of the Constitution understood the importance of the oath of office of judges of the Supreme Court of India (SC) and carefully designed its language.
    • The words, “without fear or favour” to “uphold the constitution and the laws” are extremely significant and stress the need for a fiercely independent court.
    • Article 50 of the Constitution provides: “The State shall take steps to separate the judiciary from the executive in the public services of the State.”

    Master of roaster issue

    • The Chief Justice of India is the first amongst the equals but by the virtue of his office assumes significant powers as the Master of the Roster to constitute benches and allocate matters.
    • The SC has re-affirmed this position in a rather disappointing decision in Campaign for Judicial Accountability and Reforms v. Union of India, (2018).
    • The result has been catastrophic.
    • Many matters were either treated casually or deflected for no reason from serious hearing.

    Accountability from legislature and executive

    • The SC is expected to seek strict accountability from the legislature and executive and any infraction of the Constitution and laws must be corrected.
    • Yet, this is not happening.
    • A country of billion-plus needs its highest court to stand for the people, not seemingly for the executive of the day.

    Inherent and fundamental challenges

    • The judiciary is besieged by inherent and fundamental challenges.
    • Millions of pending cases, quality of judges and their decisions, organisational issues and its integrity and impartiality, need urgent attention.
    • Yet, in the last two decades precious little has been done.
    • Justice is eluding the common man, including the vulnerable sections of society.

    Way forward

    • The new Chief Justice must seriously introspect and free himself of the bias in constituting benches and allocating cases and take concrete steps to revitalise the administration of justice.
    • Only then will the rule of law be restored and the Constitution served.

    Consider the question “Examine the inherent and fundamental challenges faced by the judiciary in India. Suggest the measures to deal with these challenges.” 

    Conclusion

    The Chief Justice of India on account of the position he holds as paterfamilias of the judicial fraternity, was suspected by none other than Dr B R Ambedkar. Let us hope the new Chief Justice makes serious efforts to prove otherwise.

  • SC paves way for appointment of ad-hoc judges in HCs

    Appointment of retired judges under Article 224A

    • The Supreme Court cleared the way for appointment of retired judges as ad-hoc judges in High Courts under Article 224A of the Constitution.
    • The court ruled that the Chief Justice of a High Court may initiate the process of recommending a name if the number of judges’ vacancies is more than 20 per cent of the sanctioned strength.
    • The court said the appointments can follow the procedure laid down in the Memorandum of Procedure for appointment of judges.
    • The move will help to deal with mounting backlog of cases.
    • Since the nominees have been judges before, the need to refer the matter to the IB or other agencies would not arise, shortening the time period.

    Back2Basics: About Article 224A

    • It allows the Chief Justice of a High Court to allow a retired judge of any High Court to sit and act as the judge of the High Court for that State.
    • Previous consent of the President is necessary.
    • The acting retired judge would be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court.
    • This Article was not part of the Constitution of India, 1950. It was inserted by the Constitution (Fifteenth Amendment) Act, 1963.

  • Supreme Court sets timeline for Govt to clear judges’ names

    Why the timeline

    • The Supreme Court laid down a timeline for the Centre to clear names recommended by the High Court Collegiums.
    • The Bench noted that there are almost 40% vacancies in the High Courts, with many of the larger High Courts working under 50% of their sanctioned strength.
    • Against the sanctioned strength of 1,080 High Court Judges, 664 have been appointed but 416 vacancies remain. 
    • The Bench rejected the contention that laying down a timeline “would be contrary to” certain “observations made in the Third Judges case”, saying the “observations” referred to “deal with the judicial review of a particular appointment and not such aspects of the appointment process like delay”.

    The timeline

    • The Intelligence Bureau (IB) should submit its report/ inputs within 4 to 6 weeks from the date of recommendation of the High Court Collegium, to the Central Government.
    • It would be desirable that the Central Government forward the file(s)/ recommendations to the Supreme Court within 8 to 12 weeks from the date of receipt of views from the State Government and the report/ input from the IB.
    • It would be for the Government to thereafter proceed to make the appointment immediately on the aforesaid consideration and undoubtedly, if Government has any reservations on suitability or in public interest, within the same period of time it may be sent back to the Supreme Court Collegium with the specific reasons for reservation recorded.
    • If the Supreme Court Collegium, after consideration of the aforesaid inputs, still reiterates the recommendation(s) unanimously…, such appointment should be processed and appointment should be made within 3 to 4 weeks.

  • Supreme Court Portal for Assistance in Court’s Efficiency (SUPACE)

    The Supreme Court has unveiled its Artificial Intelligence (AI) portal SUPACE, designed to make research easier for judges, thereby easing their workload.

    SUPACE

    • A pet project of the former Chief Justice of India S A Bobde, the SUPACE is a tool that collects relevant facts and laws and makes them available to a judge.
    • The Supreme Court’s system is not designed to take decisions, but only to process facts and to make them available to judges looking for input for a decision.
    • The CJI had then said that AI is to the intellect, what muscle memory is to the mind.

    Its’ utility

    • SUPACE will produce results customized to the need of the case and the way the judge thinks.
    • This will be time-saving. It will help the judiciary and the court in reducing delays and pendency of cases.
    • AI will present a more streamlined, cost-effective and time-bound means to the fundamental right of access to justice.
    • It will make the service delivery mechanism transparent and cost-efficient.

  • Lok Adalats

    The article highlights the important role played by the Lok Adalats in dispute resolution and raises concerns over underminig of justice for the sake of speedy disposal.

    Background of Lok Adalat

    • The Constitution (42nd Amendment) Act, 1976, inserted Article 39A to ensure “equal justice and free legal aid”.
    • To this end, the Legal Services Authorities Act, 1987, was enacted by Parliament and it came into force in 1995.
    • The Act seeks “to provide free and competent legal services to weaker sections of the society” and to “organise Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity”.
    • As an alternative dispute resolution tool, Lok Adalats are regularly organised to help parties reach a compromise.
    • Motor-accident claims, disputes related to public-utility services, cases related to dishonour of cheques, and land, labour and matrimonial disputes (except divorce) are usually taken up by Lok Adalats.

    Significance of Lok Adalats

    • As per the National Judicial Data Grid, 16.9% of all cases in district and taluka courts are three to five years old.
    • For High Courts, 20.4% of all cases are five to 10 years old, and over 17% are 10-20 years old.
    • Furthermore, over 66,000 cases are pending before the Supreme Court, over 57 lakh cases before various HCs, and over 3 crore cases are pending before various district and subordinate courts.
    • Moreover, Lok Adalats are economically affordable, as there are no court fees for placing matters before the Lok Adalat; finality of awards, as no further appeal is allowed.
    • As a result, litigants are forced to approach Lok Adalats mainly because it is a party-driven process, allowing them to reach an amicable settlement.

    Why Lok Adalats are fast

    • When compared to litigation, and even other dispute resolution devices, such as arbitration and mediation, Lok Adalats offer parties speed of settlement.
    • Cases are disposed of in a single day.
    • The speed is due to procedural flexibility, as there is no strict application of procedural laws such as the Code of Civil Procedure, 1908, and the Indian Evidence Act, 1872.
    • More importantly, the award issued by a Lok Adalat, after the filing of a joint compromise petition, has the status of a civil court decree.

    Some figures about cases disposed

    • In 2015 and 2016, ten National Lok Adalats (NLAs) were held each year that disposed of 1,83,09,401 and 1,04,98,453 cases respectively.
    • In 2017 and 2018, the number of NLAs dropped to five, with 54,05,867 and 58,79,691 cases settled respectively.
    • In 2019, four NLAs were organised, and they disposed of 52,93,273 cases.
    • In 2015, the average number of cases settled per NLA was 18,30,940, which came down to 10,81,174 in 2017, but rose to 11,75,939 in 2018, and 13,23,319 cases in 2019.
    • This throws up questions about the efficiency of NLAs.
    • The data show that the average number of cases disposed of per NLA since 2017 has gone up even when the number of NLAs organised each year has reduced.
    • This proves that on average, the system is certainly efficient.

    Concerns

    • The Supreme Court, in State of Punjab vs Jalour Singh (2008), held that a Lok Adalat is purely conciliatory and it has no adjudicatory or judicial function.
    • As compromise is its central idea, there is a concern that in the endeavour for speedy disposal of cases, it undermines the idea of justice.
    •  In a majority of cases, litigants are pitted against entities with deep pockets, such as insurance companies, banks, electricity boards, among others.
    •  In many cases, compromises are imposed on the poor who often have no choice but to accept them.
    • Similarly, poor women under the so-called ‘harmony ideology’ of the state are virtually dictated by family courts to compromise matrimonial disputes under a romanticised view of marriage.
    •  Even a disaster like the Bhopal gas tragedy was coercively settled for a paltry sum, with real justice still eluding thousands of victims.

    Consider the question “Examine the significance of Lok Adalats as an alternative dispute resolution tool. What are the concerns with speedy disposal of cases by Lok Adalats?”

    Conclusion

    A just outcome of a legal process is far more important than expeditious disposal, so what we need is concrete and innovative steps in improving the quality of justice rendered by National Lok Adalats.

  • [pib] Justice Ramana appointed as Chief Justice of India

    The President of India, in the exercise of the powers conferred by clause (2) of Article 124 of the Constitution of India, appointed Shri Justice NV Ramana, a Judge of the Supreme Court, to be the CJI.

    Chief Justice of India

    • The CJI is the chief judge of the Supreme Court of India as well as the highest-ranking officer of the Indian federal judiciary.

    Appointment

    • The Constitution of India grants power to the President to nominate, and with the advice and consent of the Parliament, appoint a chief justice, who serves until they reach the age of 65 or until removed by impeachment.
    • Earlier, it was a convention to appoint seniormost judges.
    • However, this has been broken twice. In 1973, Justice A. N. Ray was appointed superseding 3 senior judges.
    • Also, in 1977 Justice Mirza Hameedullah Beg was appointed as the chief justice superseding Justice Hans Raj Khanna.

    Qualifications

    The Indian Constitution says in Article 124 (3) that in order to be appointed as a judge in the Supreme Court of India, the person has to fit in the following criteria:

    • He/She is a citizen of India and
    • has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
    • has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
    • is, in the opinion of the President, a distinguished jurist

    Functions

    • As head of the Supreme Court, the CJI is responsible for the allocation of cases and appointment of constitutional benches which deal with important matters of law.
    • In accordance with Article 145 of the Constitution and the Supreme Court Rules of Procedure of 1966, the chief justice allocates all work to the other judges.

    On the administrative side, the CJI carries out the following functions:

    • maintenance of the roster; appointment of court officials and general and miscellaneous matters relating to the supervision and functioning of the Supreme Court

    Try this PYQ:

    Q. Who/Which of the following is the custodian of the Constitution of India?

    (a) The President of India

    (b) The Prime Minister of India

    (c) The Lok Sabha Secretariat

    (d) The Supreme Court of India

    Removal

    • Article 124(4) of the Constitution lays down the procedure for removal of a judge of the Supreme Court which is applicable to chief justices as well.
    • Once appointed, the chief justice remains in the office until the age of 65 years. He can be removed only through a process of removal by Parliament as follows:
    • He/She can be removed by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present.
    • The voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity.

    About Justice Ramana

    • Justice Ramana will take over as 48th Chief Justice of India.
    • He is a first-generation lawyer, having an agricultural background, and hails from Ponnavaram Village, Krishna District in Andhra Pradesh.
    • He is an avid reader and literature enthusiast. He is passionate about Carnatic music.

    His legal career

    • He was called on to the Bar on 10.02.1983.
    • Initially, he was appointed as a Permanent Judge of Andhra Pradesh High Court on 27.06.2000. He also functioned as Acting Chief Justice of his parent High Court from 10.3.2013 to 20.5.2013.
    • He practiced in the High Court of Andhra Pradesh, Central and Andhra Pradesh Administrative Tribunals, and the Supreme Court of India.
    • He specialized in Constitutional, Civil, Labour, Service, and Election matters. He has also practiced before Inter-State River Tribunals.
    • He served as Judge of the Supreme Court of India from 17.02.2014.
    • He has also served as the Executive Chairman of the National Legal Services Authority (NALSA) since 27.11.2019.

  • Vacancies in High Courts

    The Supreme Court has asked the government to clarify on the status of 55 recommendations made by the Collegium for judicial appointments to various High Courts six months to nearly a year-and-a-half ago.

    What is the news?

    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.

    What is the 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.

    Try this PYQ:

    Q.With reference to the Constitution of India, consider the following statements:

    1. No High Court shall have the jurisdiction to declare any central law to be constitutionally invalid.
    2. An amendment to the Constitution of India cannot be called into question by the Supreme Court of India.

    Which of the statements given above is/are correct?

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2

     

    Answer: (d)

    The Judges Cases

    • The 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.
    • The 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.
    • 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 is 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

    • Many have faulted the system, not only for its being seen as something unforeseen by the Constitution makers but also for the way it functions.
    • Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
    • 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.
    • 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.
    • Embroilment in public controversies and having relatives practising in the same High Court could be common reasons for transfers.

  • Justice NV Ramana set to take over as 48th CJI

    The Chief Justice of India Sharad Bobde has recommended Justice N.V. Ramana, the senior-most judge of the Supreme Court, as the next top judge from April 24.

    Chief Justice of India

    • The CJI is the chief judge of the Supreme Court of India as well as the highest-ranking officer of the Indian federal judiciary.

    Appointment

    • The Constitution of India grants power to the President to nominate, and with the advice and consent of the Parliament, appoint a chief justice, who serves until they reach the age of 65 or until removed by impeachment.
    • Earlier, it was a convention to appoint seniormost judges.
    • However, this has been broken twice. In 1973, Justice A. N. Ray was appointed superseding 3 senior judges.
    • Also, in 1977 Justice Mirza Hameedullah Beg was appointed as the chief justice superseding Justice Hans Raj Khanna.

    Qualifications to be a SC Judge

    The Indian Constitution says in Article 124 (3) that in order to be appointed as a judge in the Supreme Court of India, the person has to fit in the following criteria:

    • He/She is a citizen of India and
    • has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
    • has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
    • is, in the opinion of the President, a distinguished jurist

    Also read:

    https://www.civilsdaily.com/news/explained-collegium-of-judges/

    Functions

    • As head of the Supreme Court, the CJI is responsible for the allocation of cases and appointment of constitutional benches which deal with important matters of law.
    • In accordance with Article 145 of the Constitution and the Supreme Court Rules of Procedure of 1966, the chief justice allocates all work to the other judges.

    On the administrative side, the CJI carries out the following functions:

    • maintenance of the roster; appointment of court officials and general and miscellaneous matters relating to the supervision and functioning of the Supreme Court

    Try this PYQ:

    Q. Who/Which of the following is the custodian of the Constitution of India?

    (a) The President of India

    (b) The Prime Minister of India

    (c) The Lok Sabha Secretariat

    (d) The Supreme Court of India

    Removal

    • Article 124(4) of the Constitution lays down the procedure for removal of a judge of the Supreme Court which is applicable to chief justices as well.
    • Once appointed, the chief justice remains in the office until the age of 65 years. He can be removed only through a process of removal by Parliament as follows:
    • He/She can be removed by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present.
    • The voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

  • Corrective voice from Supreme Court against stereotyping of women

    A judgment by the Supreme Court forbidding judges from making gender-stereotypical comments came as a corrective voice from within the highest judiciary.

    Q.Discuss the need for gender sensitization of the judicial institutions.

    What is the news?

    • The judgment came days after the CJI, during a virtual hearing reportedly asked an alleged rapist’s lawyer to enquire whether his client would marry the survivor.
    • His statement coincided with International Women’s Day.
    • Days later, a Bench of Justices A.M. Khanwilkar and S. Ravindra Bhat urged courts to avoid using reasoning/language which diminished a sexual offence and tended to trivialize the survivor.

    What did the Court say?

    • The greatest extent of sensitivity is to be displayed in the judicial approach, language and reasoning adopted by the judge.
    • Even a solitary instance of such order or utterance in court, reflects adversely on the entire judicial system of the country, undermining the guarantee to fair justice to all, and especially to victims of sexual violence.
    • This judgment is one among a series of interventions with which the apex court has clamped down on abuse and sex stereotyping of women.

    No institution is mightier than the modesty of a woman.

    SC against stereotyping

    Some of the notable judgments which have lashed out at sex stereotyping include:

    1. The framing of the Vishaka Guidelines on sexual harassment of women in working places, and
    2. Justice D.Y. Chandrachud’s historic judgment giving women Armed Forces officers’ equal access to Permanent Commission while debunking the establishment’s claim that women were physiologically weaker than men
    3. In the Anuj Garg case, the Supreme Court had rebuked “the notion of romantic paternalism”, which, “in practical effect, put women, not on a pedestal, but in a cage”

    Avoid gender stereotypes such as:

    The courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that

    • women are physically weak and need protection;
    • men are the “head” of the household and should take all the decisions relating to family;
    • women should be submissive and obedient according to our culture;
    • “good” women are sexually chaste;
    • motherhood is the duty and role of every woman and assumptions to the effect that she wants to be a mother;
    • being alone at night or wearing certain clothes make women responsible for being attacked;
    • lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.

    Conclusion

    • Stereotyping compromises the impartiality and integrity of the justice system, which can, in turn, lead to miscarriages of justice, including the re-victimization of complainants.
    • Often judges adopt rigid standards about what they consider to be appropriate behaviour for women and penalize those who do not conform to these stereotypes.

    There should be gender sensitization

    • The court-mandated that a module on gender sensitization is included, as part of the foundational training of every judge.
    • This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny.