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Subject: Judiciary

  • Issues with Master of the Roaster power of CJI

    CJI’s power as Master of Roaster and issues with it

    • The Supreme Court recently closed the proceedings enquiring into a conspiracy to threaten the independence of the judiciary on the basis of sexual harassment allegations against the former CJI.
    • The singular power of the CJI as the Master of the Roster – i.e., the vests exclusive discretion in the Chief Justice to constitute benches and allocate cases.
    • While the CJI’s other powers such as recommending appointments to constitutional courts are shared with other senior judges, the power of Master of the Roster is enjoyed without scrutiny.
    • This power enabled Justice Gogoi to institute suo motu proceedings despite being an accused; label the case as a matter of judicial independence; and preside over it.
    • This power lay at the heart of the controversy surrounding the proceedings the Court has now closed.

    Implications for independence of judiciary

    • From the standpoint of judicial independence, the Master of the Roster power makes the CJI’s office a high stakes one.
    • It makes the CJI the sole point of defence of the Court against executive interference.
    • However, this has a flip side.
    • With the CJI as the sole Master of the Roster, any executive seeking to influence the Supreme Court needs only a pliant CJI.
    • Yet, the Supreme Court has been reluctant to dilute this power.
    • In Asok Pande v. Supreme Court of India (2018), a three-judge bench of the Court held that Master of the Roster is the CJI’s exclusive power.
    • Thereafter, a two-judge bench in Shanti Bhushan v. Supreme Court of India (2018) rejected the plea that the Master of the Roster should be interpreted as the collegium.

    Need for the reforms

    • The collegium system has failed to keep executive interferences at bay from the Supreme Court.
    • This is for two reasons:
    • First, as Justice Gogoi’s case shows, there is an attractive lure of post-retirement jobs.
    • Second, as the privilege of Master of the Roster shows, the CJI’s allocation of cases is an unchecked power.
    • The continuing project of judicial reforms should then address these two issues.

    Way forward

    • A cooling-off period between retirement and a post-retirement appointment has often been suggested as a way to deal with the first problem.
    • For the second, the power of Master of the Roster needs to be diversified beyond the CJI’s exclusive and untrammelled discretion.

    Consider the question “What are the issues with the Master of the Roaster power of the Chief Justice of India? Suggest the ways to deal with the issue.” 

    Conclusion

    We need to carry out these reforms make the judiciary less prone to interference from the executive.

  • POCSO doesn’t brook dilution

    The recent Bombay High Court judgement has raised controversy for its interpretation of certain Section of the POCSO Act. The article deals with this issue.

    Object of the POCSO Act

    • The Protection of Children from Sexual Offences (POCSO) Act was enacted in 2012 especially to protect children (aged less than 18) from sexual assault.
    • The Statement of Objects and Reasons of the Act admitted that a number of sexual offences against children were neither specifically provided for in extant laws nor adequately penalised.
    • The UN Convention on the Rights of the Child, ratified by India in 1992, also requires sexual exploitation and sexual abuse to be addressed as heinous crimes.

    Issues with Bombay High Court’s Judgement

    • The Bench acquitted a man under the POCSO Act found guilty of assault on the grounds that he groped his victim over her clothes and there was no skin-to-skin contact between them.
    • As this judgment was likely to set a dangerous precedent, the apex court stayed the acquittal.
    • Section 7 of the POCSO Act, along with other things, says that whoever with sexual intent touches the breast of the child is said to commit sexual assault.
    • Whereas Section 8 of the Act provides minimum imprisonment of three years for sexual assault.
    • Section 354 of the Indian Penal Code (IPC) lays down a minimum of one year imprisonment for outraging the modesty of a woman.

    Difference between IPC and POCSO

    • The difference between POCSO and IPC, as far as the offence of sexual assault is concerned, is two-fold.
    • One, the definition of ‘assault or criminal force to woman with intent to outrage her modesty’ given in the IPC is generic.
    • Whereas in POCSO, the acts of sexual assault are explicitly mentioned such as touching various private parts.
    • ‘Sexual assault’ in POCSO specifically excludes rape which requires penetration; otherwise the scope of ‘sexual assault’ under POCSO and ‘outraging modesty of a woman’ under the IPC is the same.
    • Two, whereas the IPC provides punishment for the offence irrespective of any age of the victim, POCSO is specific for the protection of children.
    • Higher punishment is provided under POCSO not because more serious allegations of sexual assault are required but because the legislature wanted punishment to be more deterrent if the victims are children.

    Conclusion

    In the absence of any specific provision in the POCSO Act which requires skin-to-skin touch as a mandatory element of an offence, any interpretation which dilutes protection to children must be declared ultra vires.

  • India Justice Report, 2020

    The second edition of the Indian Justice Report (IJR) was recently launched.

    Note the findings of this report. It is the only such report of its kind published in India.

    India Justice Report

    • The IJR is an initiative of Tata Trusts in collaboration with Centre for Social Justice, Common Cause and Commonwealth Human Rights Initiative among others.
    • It was first published in 2019.
    • It brings together otherwise siloed statistics from authoritative government sources, on the four pillars of justice delivery – Police, Judiciary, Prisons and Legal Aid.

    Major highlights of the Report

    • The report highlights stark conclusions when aggregated for an all-India picture.
    • Women comprise only 29 per cent of judges in India.
    • Two-thirds of the country’s prisoners are yet to be convicted.
    • In the last 25 years, since 1995, only 1.5 crore people have received legal aid, though 80 per cent of the country’s population is entitled to.
    • The report gives ranks Maharashtra once again at the top of the 18 large- and mid-sized states (with a population of over one crore each), followed by Tamil Nadu, Telangana, Punjab and Kerala.
    • The list of seven small states (population of less than one crore each) was topped by Tripura, followed by Sikkim and Goa.

  • POCSO Act

    In a recent judgement, Section 7 of POCSO Act was interpreted in a controversial way by the Nagpur Bench of the Bombay High Court. 

    Issue of the definition of sexual assault under POCSO Act

    • Recently, the Nagpur Bench of the Bombay High Court held that skin-to-skin contact is essential to constitute the offence defined under Section 7 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
    • Section 354 of the Indian Penal Code, 1860, which deals with outraging modesty of women and which provides for a lesser sentence, was held to be applicable in such cases.
    • This ruling raises several concerns.
    • The National Commission for Protection of Child Rights had asked the Maharashtra government to appeal this decision in the Supreme Court.
    • The Supreme Court has currently stayed the acquittal of the accused under this judgement.

    Concerns with the judgement

    • The Court held that the stringent nature of punishment provided for the offence required stricter proof and serious allegations.
    • The court said the punishment should be proportionate to the seriousness of the crime.
    • Nevertheless, while adjudging the seriousness of the offence the court has not given consideration to the fact that the victim, a minor, is entitled to greater protection.
    • The major concern is that the interpretation of the court seems to defeat the purpose of the POCSO Act.
    • Section 7 of POCSO defines sexual assault as “Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”
    •  The court has concluded that the touching of the breast without skin-to-skin contact is not similar to the abovementioned acts and, therefore, does not fall within this definition.
    • The court seems to have followed a rather pedantic approach to reach this conclusion.
    • The fact that the trauma of the child whose breasts were groped through a cloth could be of the same nature and severity as direct touching of the breast is not discussed.
    • And if the trauma is the same, the mere existence of cloth should not affect the applicability of the POCSO Act.

    Legislative history and object of POCSO Act

    POCSO Act

    • The POCSO Act was enacted with the specific intention of protecting children from sexual assault and sexual harassment.
    • It took into consideration the standards prescribed by the Convention on the Rights of the Child adopted by the General Assembly of the United Nations to which the Indian government acceded to on December 11, 1992.
    • The Act acknowledges the special vulnerability of children and that special protection, above and beyond that provided in the IPC, is required when the victim is a child.

    Conclusion

    If such an interpretation is followed, there is a threat that the POCSO Act in itself might become redundant as a wide range of sexually violative activities would be excluded from its ambit due to lack of skin-to-skin contact.

  • Mercy petition

    The article highlights the issue of delay in carrying out the dealth penalty and issues associated with it.

    Review of India’s position on the death penalty

    • The delay in carrying out the death penalty is one of the reasons to review India’s position on capital punishment.
    • The debate on the efficacy of the death penalty in reducing crime has been going on for several decades.
    • A few years ago, the issue of abolishing capital punishment was raised in the Rajya Sabha but was rejected by a voice vote.
    • The then Minister of State for Home Affairs stated that the government was not contemplating abolition of the death penalty.
    • In 2015, the Law Commission of India proposed abolishing the death penalty and sought the comments of States and Union Territories on the subject.
    • India figures among the 56 nations in the world that have retained the death penalty.

    Issue of delay in carrying out the punishment

    • The prolonged detention of death row convicts in prison is not just inhuman but also against the canons of justice.
    • The delay coupled with long years of solitary confinement leads to immense psychological trauma.
    • It is small wonder that the courts tend to take a lenient view and reduce the sentence when such cases of prolonged years of detention come before them.
    • A time frame needs to be fixed for the President to dispose of mercy petitions.
    •  Delays in investigations, court hearings, and administrative steps to be taken after the final verdict need to be inquired into, and responsibility fixed.

    Consider the question “Against the backdrop of delay in carrying out the dealth penalty in India, take the review of India’s position on the abolition of death penalty.”

    Conclusion

    With the changing time, we must change and so do the way we punish people. Capital punishment should be abolished in the country and until then, the inordinate delays in carrying out punishment should be avoided.

  • Defending liberty against selective prosecution

    The article examines the issue of selective prosecution and Indian judiciary’s approach toward it. It also highlights the importance of recent Goswami case.

    Selective prosecution: Form of abuse of state power

    • Recently the case involving bail application of a T.V. anchor brought to the fore issue of selective prosecution.
    • The illegal selection of accused based on grounds prohibited by the Constitution is called “selective prosecution”.
    • In case of selective prosecution, the police and enforcement agencies selectively target political and ideological opponents of the ruling dispensation to interrogate, humiliate, harass, arrest, torture and imprison.
    • It is one of the oldest, most pernicious and widespread forms of abuse of state power.

    How it is illegal: Two independent legal issues

    1) Exercise of prosecutorial discretion

    • The applicable legal standard is that while the police and prosecutors in common law jurisdictions enjoy vast discretion in deciding who they may pursue and who they may spare.
    • However, the choice of accused must not be based on grounds that violate Constitutional rights, including the Article 14 right to equal protection of the law.
    • The accused should not be selected, either explicitly or covertly, on constitutionally prohibited grounds.

    2) Merit of the case filed

    • When the choice of accused runs contrary to the Constitution, the entire criminal proceeding is vitiated, irrespective of the determination of the second issue, viz., whether the accused are convicted or acquitted on the charges brought against them.
    • Once the proceedings fail under the first issue, there is no legal basis to proceed to the second issue., i.e., trial on the merits of the case.
    • The theory is that the Constitution cannot be violated to uphold the law — such an approach would spell doom for the Constitution.
    • The selective prosecution claim must be adjudicated as a threshold issue, with the prosecution being quashed at the outset of the criminal case if the claim is justified.
    • In the context of this discussion, the constitutionally prohibited ground we are confronting in India is the political or ideological affiliation of the accused.
    • It is an arbitrary ground that violates the Article 14 guarantee of equal protection of the law.

    Approach of judiciary

    • Our courts have not recognised selective prosecution as an independent claim.
    • This is because courts assume that lawfulness of prosecution can only be taken up after the trial, if the accused is acquitted.
    • The 2018 Report of the Law Commission on ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’ discusses remedies for wrongful prosecution available only if and after the accused is acquitted.
    • Remedy after acquittal comes far too late, well after a brutal and long drawn out criminal justice process that upends the lives of the victims.
    • Also, the right against selective prosecution cannot be extinguished by conviction.
    • Separate from post-acquittal actions for wrongful prosecution (which will still be available), the claim of selective prosecution is a threshold issue that is required to be adjudicated at the outset of criminal proceedings even during the investigation stage irrespective of the merit of the charges.

    Importance of Goswami case

    • The case provides a much needed and long awaited legal opening to strengthen the recognition and use of the selective prosecution claim in India to counter politically coloured prosecution.
    • The judgment says, “Courts should be alive to the needof ensuring that the law does not become a ruse for targeted harassment ”.
    • The Goswami judgment also quotes the 2018 Supreme Court holding in Romila Thapar v. Union of India that, “[T]he basic entitlement of every citizen who is faced with allegations of criminal wrongdoing is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness under Article 14 and of the right to life and personal liberty under Article 21.”

    Consider the question “How selective prosecution could threten the liberty of person? How Indian judiciary approaches the issue of selective prosecution and what are the issue with the approach adopted by the judiciary?”

    Conclusion

    To strengthen the protection of civil liberty, equality and democracy, it is time our courts — at all levels — recognise selective prosecution as a threshold constitutional defence against the abuse of police and prosecutorial power.

  • Can courts stay laws made by the legislature?

    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.

    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.

  • Issues with suspension of the Farm laws

    The article deals with the recent Supreme Court order in which it suspended the implementation of the Farm Acts. This order gives rise to several issues. The article deals with these issues.

    What is the issue

    • The Supreme Court has suspended the implementation of the farm laws.
    • The court created a committee to ascertain the various grievances of the farmers.
    • But the Supreme Court has not clarified the legal basis of this suspension.

    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.

  • SC says it intends to stay farm laws

    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.

  • Law and disorder

    Several inadequacies in the justice delivery system lie hidden as disproportionate attention is given to the Supreme Court.

    Public expects the judiciary to be ideal

    • The citizens of the country expect the Supreme Court and its constituents to be ideal, and the challenge of the Supreme Court is to come to terms with that reality.
    • However, it is not the Supreme Court alone that matters in the justice delivery system. There are other inadequacies of the system that don’t get as much public attention.

    Practice Question: Explain the various inadequacies in the justice delivery system in India which lie hidden. What steps need to be taken to address them?

    Spending on judiciary

    • The issue of spending on judiciary, most often, is equated with increasing the salaries of judges and providing better court infrastructure. Such perceptions are unfortunate.
    • India has one of the most comprehensive legal aid programmes in the world, the Legal Services Authority Act of 1987.
    • Under this law, all women, irrespective of their financial status, are entitled to free legal aid. Scheduled Castes and Scheduled Tribes and children too are entitled to free legal aid.
    • In reality, this law is a dead letter. There has been little effort on the part of successive governments to provide a task force of carefully selected, well-trained and reasonably paid advocates to provide these services.
    • In comparison, the system of legal aid in the U.K. identifies and funds several independent solicitor offices to provide such services. India is yet to put in place anything similar to this.

    Poor judge-population ratio

    • The judge-population ratio provides one of the most important yardsticks to measure the health of the legal system. The U.S. has about 100 judges per million population. Canada has about 75 and the U.K. has about 50.
    • India, on the other hand, has only 19 judges per million population. Of these, at any given point, at least one-fourth is always vacant.
    • Lower courts where the common man first comes into contact (or at least should) with the justice delivery system is also unnoticed and hardly any attention is focused on their gaping inadequacy.
    • These inadequacies are far more important to the common man than the issues relating to the apex court that are frequently highlighted in the public space.
    • In All India Judges Association v. Union of India (2001), the Supreme Court had directed the Government of India to increase the judge-population ratio to at least 50 per million population within five years from the date of the judgment. This has not been implemented.

    Access to justice

    • Though ‘access to justice’ has not been specifically spelt out as a fundamental right in the Constitution, it has always been treated as such by Indian courts.
    • In Anita Kushwaha v. Pushpa Sadan (2016), the Supreme Court held unambiguously that if “life” implies not only live in the physical sense but a bundle of rights that make life worth living, there is no justice or other basis for holding that denial of “access to justice” will not affect the quality of human life.
    • It was for the first time that the Supreme Court had attempted a near-exhaustive definition of what “access to justice” actually means.
    • Further, the court pointed out four important components of access to justice.
    1. The need for adjudicatory mechanisms.
    2. The mechanism must be conveniently accessible in terms of distance.
    3. The process of adjudication must be speedy.
    4. The process of adjudication must be affordable to the disputants.
    • It is of course a paradox that this judgment, which emphasizes the concept of speedy justice, was passed in 2016 in a batch of transfer petitions that were filed between 2008 and 2014.

    Way forward

    • The state in all its glorious manifestations — the executive, judiciary and the legislature — there is a need to draw out a national policy and road map for clearing backlogs and making these concepts real.
    • A disproportionate amount of attention that is given to the functioning of the Supreme Court, it is equally important to have a clear focus on these and similar issues.