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Subject: Judiciary

  • Issues related to Judicial appointment

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

    Must read:

    [Burning Issue] Uproar over AP CM’s letter to CJI

    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    • After some judges were superseded in the appointment of the CJI in the 1970s and attempts made subsequently to effect a mass transfer of High Court judges across the country.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.

  • Representation of Women in Judiciary

    Attorney-General has told the Supreme Court that more women judges in constitutional courts would certainly improve gender sensitivity in the judiciary.

    Q.Women judges could bring a more comprehensive and empathetic perspective of gender sensitivity in the judiciary. Discuss.

    Women in Judiciary: A dismal figure

    • The Supreme Court has only two women judges as against a sanctioned strength of 34 judges.
    • There has never been a female Chief Justice. This figure is consistently low across the higher judiciary.
    • There are only 80 women judges out of the sanctioned strength of 1,113 judges in the High Courts and the Supreme Court.
    • Only two of these 80 women judges are in the Supreme Court and the other 78 are in various High Courts, comprising only 7.2% of the number of judges.
    • There are six High Courts — Manipur, Meghalaya, Patna, Tripura, Telangana, and Uttarakhand — where there are no sitting women judges.

    A short timeline

    • The first female Judge appointed in Supreme Court was Justice M. Fathima Beevi from Kerala in 1987.
    • She was later followed by Justice Sujata V. Manohar from Maharashtra in 1994 and in the year 2000, Justice Ruma Pal was appointed from West Bengal.
    • And in the year 2010, Justice Gyan Sudha Misra from Bihar was appointed.
    • In 2014, Justice Ranjana Desai from Mumbai was appointed and currently, Justice R. Banumathi from Tamil Nadu is the only woman judge in Supreme Court.

    (Note: This data might be useful for State PSCs or other exams. UPSC aspirants need not remember this.)

    What did the A-G say?

    • Improving the representation of women could go a long way towards a more balanced and empathetic approach in cases involving sexual violence.
    • Judges need to be trained to place themselves in the shoes of the victim of sexual violence while passing orders, said the AG.
    • There is a dearth of compulsory courses in gender sensitization in law schools.
    • Certain law schools have the subject either as a specialization or as an elective.

    Why need more women in Judiciary?

    • The entry of women judges into spaces from which they had historically been excluded has been a positive step in the direction of judiciaries being perceived as being more transparent, inclusive, and representative.
    • By their mere presence, women judges enhance the legitimacy of courts, sending a powerful signal that they are open and accessible to those who seek recourse to justice.
    • They could contribute far more to justice than improving its appearance: they also contribute significantly to the quality of decision-making, and thus to the quality of justice itself.
    • Women judges bring those lived experiences to their judicial actions, experiences that tend toward a more comprehensive and empathetic perspective.
    • By elucidating how laws and rulings can be based on gender stereotypes, or how they might have a different impact on women and men, a gender perspective enhances the fairness of the adjudication.

  • Protecting Article 32

    The article deals with the issue of recourse to Article 32 for violation of Fundamental Rights. But it is subject to fundamental principles of administration of justice.

    Context

    • The Chief Justice of India is reported to have stated during the hearing of journalist Siddique Kappan’s bail matter, that the Court was trying to “discourage” recourse to Article 32.

    Recourse under Article 32 is not absolute

    • The apex judicial process shows clearly that the Court regards Article 32 as a judicial power subject to the fundamental principles of administration of justice.
    • The Supreme Court has already extended rules and doctrines such as laches (delays) or res judicata (a matter already decided by a competent court) or any other principle of administration of justice.
    • Article 32 keep open “the doors of this court” and requires the state not to “put any hindrance” to a person seeking to approach the Court.
    • However, the Court must ignore all laws of procedure, evidence, limitation, res judicata and other provision.
    • The Supreme Court has also said that faith “must be inspired in the hierarchy of Courts [ Recourse under Article 226 should be sought before approaching the SC] and the institution as a whole” and not” only in this Court alone”.
    • So, even if there is a constitutional right to remedies it remains subject to the discipline of judicial power and process.

    New facets of Article 32

    • The Supreme Court has also discovered new facets of Article 32.
    • As early as 1950, it has ruled that powers under Article 32 are not limited to the exercise of prerogative writs.
    • In 1987 the Court ruled that it has powers to rule for compensation of violation of fundamental rights.
    • In 1999 it said that this power extended to the rectification of its own mistakes or errors.

    Comparing Article 226 and Article 32

    • Article 226 is the very dimension; the high court’s vast jurisdiction technically casts no duty on them to enforce fundamental rights.
    • They have the discretion to act or not to; in contrast, the Supreme Court must.
    • Fourth, Article 32 is not absolute, the Supreme Court decides on what “appropriate proceedings” should be for it to be so moved.
    • But the Court may not prescribe any process as it likes but only that process which preserves, protects and promotes the right to constitutional remedies.

    Need for effective bail system

    • The just demand for an expeditious and effective bail system stems from manifest discrimination in bail .
    • In several instances, one case is fast-tracked whereas others are consigned to slow-moving judicial action, even when rights to life and health are endangered.
    • Scandalous judicial delays, measures of decongestion and diversion, and a bold resolution of “who watches the watchman” syndrome now demand urgent apex response.

    Consider the question “Seeking remedy from the Supreme Court for the violation of fundamental rights under Article 32 is also a fundamental right. However, enforcement of it is not absolute. In light of this, examine the challenges in its enforcement by the Supreme Court.”

    Conclusion

    Article 32 makes the apex court into a “people’s court”. And future historians should not be able to conclude that the Court deliberately dealt deathblows to this “soul” of the Constitution, as Babasaheb Ambedkar described Article 32.

  • Governor’s inaction and judicial scrutiny

    The inaction by the Governor of Tamil Nadu on advice to free the convict has raised the possibility of judicial intervention due to undue delay.

    Inaction by Governor on advice

    • The Governor of Tamil Nadu has continued to withhold his decision on an application seeking pardon by one of the seven prisoners convicted in the Rajiv Gandhi assassination case.
    • In September 2018, the Supreme Court (SC) had observed, while hearing a connected writ petition, that the Governor should take a decision
    • The inaction by the Governor now has given rise to constitutional fault lines within the Executive arm of the government.

    Past judgements on pardoning power

    • In Maru Ram v. Union of India (1981)  Supreme Court held that the pardoning power “under Articles 72 and 161 of the Constitution can be exercised by the Central and the State Governments, not by the President or Governor on their own.”
    • The majority judgment had said that the “advice of the appropriate Government binds the Head of the State”.
    • Therefore, a Governor is neither expected, nor is empowered, to test the constitutionality of the order or resolution presented to her.

    Issue of delay in decision of mercy petition

    • Recently, the Supreme Court, had examined the inordinate delay by the President and the Governor — in taking decisions on mercy petitions.
    • The Supreme Court, in the case of Shatrugan Chouhan v. Union of India, laid down the principle of “presumption of dehumanising effect of such delay”.
    • The Supreme Court confirmed that the due process guaranteed under Article 21 was available to each and every prisoner “till his last breath”.

    Judicial scrutiny of the actions of Speakers

    • It was hitherto believed that the powers of the Speaker, holding a constitutional office and exercising powers granted under the Constitution, were beyond the scope of a ‘writ of mandamus’.
    • In the recent case of Keisham Meghachandra Singh v. Hon’ble Speaker (2020), the Supreme Court was asked to examine the Speaker’s inaction with regard to disqualification proceedings.
    • However, the apex court, referering to Rajendra Singh Rana v. Swami Prasad Maurya (2007), had confirmed its view that the “failure on the part of the Speaker to decide the application seeking a disqualification cannot be said to be merely in the realm of procedure”
    • Consequently, breaking years of convention, the SC set the time period of four weeks to decide the disqualification petition.
    • By doing so, the Supreme Court has indicated that it would not be precluded from issuing directions in aid of a constitutional authority “arriving at a prompt decision”.

    Consider the question “The undue delays and inactions by the constitutional functionaries threaten to widen the constitutional faultlines among the Executives. Comment.”

    Conclusion

    Instead of relying on the judicial intervention in the event of delays, it would be better to have a set time limit for arriving at decision by the constitutional judiciary.

  • What is Recusal of Judges?

    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.

  • Supreme Court’s guidelines for deserted Wives and Children

    The Supreme Court has laid down uniform and comprehensive guidelines for family courts, magistrates and lower courts to follow while hearing the applications filed by women seeking maintenance from their estranged husbands’.

    Debate: Alimony as a right of women or a feminist taboo

    Why such a judgement?

    • Usually, maintenance cases have to be settled in 60 days, but they take years, in reality, owing to legal loopholes.
    • The top court said women deserted by husbands are left in dire straits, often reduced to destitution, for lack of means to sustain themselves and their children.
    • Despite a plethora of maintenance laws, women were left empty-handed for years, struggling to make ends meet after a bad marriage.

    What did the Court say?

    • The Supreme Court has held that deserted wives and children are entitled to alimony/maintenance from the husbands from the date they apply for it in a court of law.
    • To ensure that judicial orders for grant of maintenance are duly enforced by husbands, the court said a violation would lead to punishments such as civil detention and even attachment of the property of the latter.
    • The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife, if he is able-bodied and has educational qualifications, the court declared.
    • Both the applicant wife and the respondent-husband have to disclose their assets and liabilities in a maintenance case.
    • Other factors such as “spiralling inflation rates and high costs of living” should be considered, but the wife should receive alimony which fit the standard of life she was used to in the matrimonial home.

    Covering expenses

    • The expenses of the children, including their education, basic needs and other vocational activities, should be factored in by courts while calculating the alimony.
    • Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.

    Permanent alimony

    • The court opined it would not be equitable to order a husband to pay his wife permanent alimony for the rest of her life, considering the fact that in contemporary society marriages do not last for a reasonable length of time.
    • Anyway, the court said, the duration of marriage should be accounted for while determining the permanent alimony.

  • Nyay Kaushal E-resource Centre

    CJI has inaugurated the first-ever e-resource centre and virtual court for traffic and transport to enable speedy justice for litigants, called ‘Nyay Kaushal’, at Nagpur.

    Must read edition:

    [Burning Issue] Judiciary in Times of COVID-19 Outbreak

    Nyay Kaushal Centre

    • It is a first of its kind e-resource centre in India that will facilitate electronic filing of cases in the Supreme Court, High Courts and district courts across the country.
    • It is meant to be a step at mitigating various inequalities, being connected to the Supreme Court, the High Courts and the Taluka Courts.
    • It will provide the easiest way of filing court matters by utilising technology. It will provide benefits in saving time, avoidance of exertion, travelling long distances, and a saving in costs.
    • The virtual court will be working from Katol in Nagpur district.

    It’s working

    • The virtual court can deal with all traffic challan cases from every corner of Maharashtra online.
    • It will be possible for the litigants to pay the fine and get the traffic challan case disposed of with the click of a button on a smartphone or a computer.

    Why need such a mechanism?

    • The biggest problem that came with the pandemic was that access to justice became conditional on access to technology.
    • This has ended up creating a divide between the ones who can afford technology and ones who cannot.
    • With the aid of virtual courts, our system of justice does not suffer and the rule of law continues to be maintained.

  • Live-streaming of Courts

    Attorney General of India has pushed for live-streaming court proceedings to make hearings accessible to all. But CJI sounded a cautionary note, saying it was susceptible to “abuses.”

    Why such demands?

    • In a first in India, the Gujarat High Court has begun live streaming of Court Proceedings on YouTube.
    • The issue of live-streaming came up as a Special Bench led by the CJI was taking stock of the virtual court system initiated soon after the pandemic lockdown.

    Live-streaming of Court

    • Justice Chandrachud was one of the three judges on the Bench that gave the verdict on live-streaming in September 2018.
    • In fact, he had noted in his separate opinion that live-streaming of proceedings would be the true realization of the “open court system.”
    • His suggestions were later adopted as guidelines in the September 2018 judgment.

    Why there should be live-streaming?

    • Improved accountability: Live-streaming of court proceedings would serve as an instrument for greater accountability and formed part of the Code of Criminal Procedure, 1973.
    • Living up the expectation of Constitution: Live Streaming of Court proceedings is manifested in public interest. Public interest has always been preserved through the Constitution article 19 and 21
    • Empowering the masses: It will enable the legal system to deliver on its promise of empowering the masses.
    • More transparency: It will encourage the principle of open court and reduce dependence on second-hand views. It will effectuate the public’s right to know. 
    • This would inspire confidence in the functioning of the judiciary as an institution and help maintain the respect that it deserved as a co-equal organ of the state.
    • Academic help: Live streaming may also be a help for academic purposes.

    Issues with live-courts

    The Parliamentary Standing Committee (PSC) of the Department of Personnel, Public Grievances and Law and Justice have tabled its report on the functioning of Virtual Courts and Digitization of Justice Delivery in Parliament.

    Following are the four key considerations and recommendations of the committee as far as mainstreaming of virtual courts is concerned:

    (1) The question of access:

    • A large number of litigants and advocates lack internet connectivity and requisite infrastructure and means to participate in virtual hearings and the process. This has serious implications.
    • The obvious one being that a large chunk of our citizenry is vulnerable to being excluded from the process of justice delivery owing to factors beyond their control.
    • The committee also opined that the judiciary considers solutions such as mobile video conferencing facilities to allow for meaningful participation from those living in remote geographies.

    (2) The degree of comfort:

    • A highly underrated but equally consequential factor is whether everyone, even if access to reliable internet connectivity is universal, is comfortable and well versed with the new tools and mediums of justice delivery.
    • Big, well-to-do law firms and advocates in urban areas would face no issues as compared to those participants in rural areas given the digital divide.

    (3) The idea of open courts itself:

    • Virtual courts allegedly threaten the constitutionality of Court proceedings and undermine the importance of Rule of law which forms a part of the basic structure of the Constitution.
    • Expressing concern over the opaqueness of such hearings, critics state that virtual courts are antithetical to the open court system given the limited access that they allow for.

    (4) The question of Privacy and Data Security:

    • This is where the report makes some interesting and innovative suggestions vital to the performance of any digital justice delivery mechanism.
    • It also took note of the fact that most virtual court proceedings in India currently take place using third-party software or platforms and a few of them have already been rejected earlier on grounds of being unsafe to use.
    • The committee noted how courts across the world have had instances of intrusion and data privacy or security concerns while adapting to an entirely virtual mode of conducting hearings.

    Still, digital records are necessary

    • Litigants depend on the information provided by lawyers about what has transpired during the course of hearings.
    • When the description of cases is accurate and comprehensive; it serves the course of open justice.
    • Again, if a report on a judicial hearing is inaccurate, it impedes the public’s right to know.

    Best examples

    • Internationally, constitutional court proceedings are recorded in some form or the other.
    • In Australia, proceedings are recorded and posted on the high court’s website.
    • Proceedings of the Supreme Courts of Brazil, Canada, England and Germany are broadcast live.
    • The Supreme Court of the US does not permit video recording, but oral arguments are recorded, transcribed, and available publicly.
    • And democracies aside, in China, court proceedings are live-streamed from trial courts up to the Supreme People’s Court of China.

    Significance of open-courts

    • India stands alone amongst leading constitutional democracies in not maintaining audio or video recordings or even a transcript of court proceedings.
    • Court hearings can be turning points in the life of a nation: ADM Jabalpur comes readily to mind. More recently, there is any number of cases where the Supreme Court’s judgments have changed citizens’ lives.
    • Ayodhya, Aadhaar, Section 377, Sabarimala, NRC and the triple talaq judgments are among them.

    Various moves for accessibility

    • Over the last few years, the Supreme Court has taken steps to make justice more accessible. The Court started providing vernacular translations of its judgments.
    • Non-accredited journalists were permitted to live-tweet court proceedings. During the lockdown, journalists have been permitted to view virtual court proceedings in real-time.

    Way forward

    • There should be live-streaming cases of constitutional and national importance as a pilot project, including Constitution Bench cases.
    • Matrimonial cases and those involving national security could be excluded.
    • There must be a reasonable time-delay (say 10 minutes) between the live court proceedings and the broadcast to ensure any information which ought not to be shown, as directed by the court, can be edited from being broadcast.
    • The judiciary must also employ a press officer to liaise with the media, and issue simultaneously one or two page summaries of its judgments to facilitate greater public understanding.
    • There has to be a greater reliance on written briefs and the significance accorded to them, time limits for oral arguments, and a greater emphasis on preparation in advance.

  • What are Lok Adalats?

    A daily wager in Odisha has moved the Lok Adalat against PM after he allegedly failed to get an Aadhaar card registered in his name despite 21 attempts.

    Try this PYQ:

    Q. With reference to National Legal Services Authority, consider the following statements:

    1. Its objective is to provide free and competent legal services to the weaker sections of the society on the basis of equal opportunity.
    2. It issues guidelines for the State Legal Services Authorities to implement the legal programmes and schemes throughout the country.

    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

    What are Lok Adalats?

    • Lok Adalat (People’s Court) is an alternative dispute resolution mechanism.
    • The forum can settle cases pending on panchayat or at a pre-litigation stage in a court of law.
    • The decisions have statutory status under the Legal Services Authorities Act, 1987.
    • Under this Act, the award (decision) made by the Lok Adalats is deemed to be a case of a civil court, final and binding for all parties, and not subject to appeal.
    • It has broad powers to devise its procedures, compared to national courts.
    • If the parties do not recognise the Lok Adalat (though there is no provision for an appeal against such a prize), they may initiate litigation by approaching the court of appropriate jurisdiction.

  • What is Queen’s Counsel?

    India has suggested Pakistan appointing a Queen’s Counsel for the Kulbhushan Jadhav case to ensure a free and fair trial.

    Queen’s Counsel

    • In the UK and in some Commonwealth countries, a Queen’s Counsel during the reign of a queen is a lawyer who is appointed by the monarch of the country to be one of ’Her Majesty’s Counsel learned in the law’.
    • The position originated in England.
    • Some Commonwealth countries have either abolished the position, or re-named it so as to remove monarchical connotations, for example, ’Senior Counsel’ or ’Senior Advocate’.
    • Queen’s Counsel is an office, conferred by the Crown that is recognised by courts.
    • Senior Advocate Harish Salve earlier this year has been appointed as Queen’s Counsel (QC) for the courts of England and Wales.