Subject: Judiciary

The Supreme Court’s recent order staying the implementation of three farm laws has been criticised and is seen as violative of the doctrine of Separation of Powers.

Q. Discuss the role of judicial activism in parliamentary democracy in India.

What is the issue?

• In particular, many have questioned the suspension of action under the laws as such interim orders are extremely rare.
• The court did not accept the Attorney General’s argument that laws made by the legislature should not be ordinarily stayed, as there is a presumption of constitutionality in favour of the laws.

SC’s justification

• This court cannot be said to be completely powerless to grant stay of any executive action under a statutory enactment, the Bench observed in its order.
• This means that it was apparently making a distinction between staying a law and staying its implementation or any action under it.
• Some may argue, however, that the effect remains the same, as the order operates as a stay on the government invoking its provisions.

Previous such orders

• The court also cited an order passed by another Bench of the Supreme Court in September 2020 on the Maratha reservation issue.
• It directed that admissions to educational institutions for 2020-21 and appointments to posts under the government shall be made without reference to the reservation provided under the relevant legislation.

Farms laws case is different

• In the Maratha reservation case, the Bench said interim orders could be passed if an enactment is ex facie unconstitutional or contrary to the law laid down by the Supreme Court.
• It noted that the quota violated the 50% ceiling mentioned in the Indra Sawhney case (1992) and that the Maharashtra government had not shown any extraordinary situation to justify exceeding the limit.
• Here, the Court observed that a stay on the farm laws’ implementation may assuage the hurt feelings of farmers and encourage them to come to the negotiating table.

What are the court’s powers in regard to staying enacted law?

• Under the broad framework of judicial review, the Supreme Court and High Courts have the power to declare any law unconstitutional.
• This is on grounds if a law is contrary to any provision of the Constitution or it violates any of the fundamental rights.
• Another ground is invalidity if the law is repugnant to a central law on the same subject or has been enacted without legislative jurisdiction.

Criticisms of the move

• The main criticism is that suspending a law made by the legislature goes against the concept of separation of powers.
• Courts are expected to defer to the legislature’s wisdom at the threshold of a legal challenge to the validity of a law.
• The validity of law ought to be considered normally only at the time of final adjudication, and not at the initial stage.
• The second principle is that there is a presumption that every law enacted by any legislature is constitutional and valid.
• The onus is on those challenging it to prove that it is not. Therefore, courts are circumspect when hearing petitions seeking suspension of law pending a detailed adjudication.

Various precedents cited by the Court

• Case law suggests that in some cases, High Courts indeed stayed the operation of some laws. However, the Supreme Court took a dim view.
• In 1984, the top court set aside an interim stay granted against the operation of a municipal tax (Siliguri Municipality & Others vs Amalendu Das & Others).
• In 2013, it removed the stay on some provisions of and regulations under the Cigarettes and Other Tobacco Products Act, 2003 (Health for Millions Trust vs Union of India).
• It then held that the rules were ex facie unconstitutional and the factors, like, the balance of convenience, irreparable injury and public interest are in favour of passing an interim order.

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Back2Basics: Judicial Activism

• The term “Judicial Activism” refers to the court’s decision, based on the wisdom that does not go rigidly within the text of the statute passed by the legislature.
• It goes in favour of the use of judicial power broadly to provide remedies to the wide range of social wrongs for ensuring proper justice.
• The judiciary performs an active role to uphold constitutional values and ethics under the constitutional pattern.
• For addressing civic dilemmas, the judiciary applies its intellect and creativity to fill the gap between the positive and normative aspects of legislations.
• For this reason, judicial activism has emerged.

The Supreme Court has intended to stay the implementation of the controversial agricultural laws while proposing to form an independent committee chaired by a former CJI to resolve the stand-off between the protesting farmers and the Union government.

Q.The judicial systems in India and the UK seem to be converging as well as diverging in recent times. Highlight the key points of convergence and divergence between the two nations in terms of their judicial practices. (150W, CS Mains 2020)

Halting the farm laws

• The Parliament’s power to legislate, drawn from Article 254(1) of the Constitution, can only be restricted if the law violates the Constitution.
• How the Supreme Court operationalizes its suggestion to stay the operation of the three farm laws and open fresh talks via a committee will be evident.
• The Supreme Court has previously set up committees, delegating some of its powers to the members to implement or oversee a law or an order of the court.
• A line of precedents shows that courts have been very cautious while passing interim orders to stay laws passed by the Legislature.

Narrow grounds

The implementation of a law can be halted on two narrow grounds:

• The first ground is legislative competence, that is, if the court finds that the Parliament has no power to legislate on a subject matter.
• The other two grounds are if the law violates fundamental rights or any other provisions of the Constitution respectively.

Various precedents

• In matters involving the constitutionality of any legislation, courts should be extremely loath to pass an interim order,” a Supreme Court bench had said in 2013 ruling on the validity of the Cigarettes and Other Tobacco Products Regulation Act, 2003.
• At the time of final adjudication, the court can strike down the statute if found ultra vires of the Constitution.
• Even in 2019, the Supreme Court refused to stay amendments made in 2018 to the SCs and STs Atrocities Prevention Act saying that a law made by Parliament cannot be stayed.
• The court also refused to stay the Citizenship Amendment Act, 2019, which was also challenged after it drew protests across the country.

NJAC and Aadhaar Case

• Even strongly contested legislation such as the National Judicial Appointments Commission (NJAC) and Aadhaar was not stayed by the Supreme Court.
• They were, instead, stalled by the government for the duration of the protracted legal battles in court.
• While the NJAC Act, which contemplated a significant role for the executive in judicial appointments, was struck down as being violative of the basic structure, the SC upheld the Aadhaar Act.

What are the issues with the suspension?

• The court’s action, at first sight, is a violation of separation of powers.
• It also gives the misleading impression that a distributive conflict can be resolved by technical or judicial means.
• It is also not a court’s job to mediate a political dispute.
• Its job is to determine unconstitutionality or illegality.
• Even in suspending laws there needs to be some prima facie case that these lapses might have taken place.
• It has set a new precedent for putting on hold laws passed by Parliament without substantive hearings on the content of the laws.
• Also in appointing the committee, the court has violated the first rule of mediation: The mediators must be acceptable to all parties and appointed in consultation with them.

Conclusion

The Supreme Court order has given the government a setback while not addressing the concerns of the protesting farmers. The court needs to consider these facts and mend its implications.

The SC Collegium has recommended the transfer of judges of several HC, including the transfer of a Justice of the Andhra Pradesh High Court.

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What is Collegium?

• Collegium system of the Supreme Court (SC) and the High Courts (HCs) of India is based on the precedence established by the “Three Judges Cases (1982, 1993, 1998) “.
• It is a legally valid system of appointment and transfer of judges in the SC and all HCs.
• It is a system of checks and balance, which ensures the independence of the senior judiciary in India.

The Collegium System: A detailed backgrounder

• The Collegium of judges is the Indian SC’s invention.
• It does not figure in the Constitution, which says judges of the SC and HC 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.

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 SC.
• On a Presidential Reference in its opinion, the SC, 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 HC

• The CJs of HC 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.

Scope for transparency

• In respect of appointments, there has been an acknowledgement 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 the Collegium’s resolutions are now posted online, but reasons are not given.

A Justice of the Supreme Court has recused himself from hearing a petition that sought action against the Andhra Pradesh CM for levelling political allegations against an AP High Court judge.

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, he ruled.