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Subject: Judiciary

  • Judiciary and challenges ahead

    The relations between the judiciary and executive have always been tumultuous. This article analyses the changes in the judiciary’s relations with the executive after 2014.

    Relations with executive

    • In 2014 government blocked the elevation of Gopal Subramanium as a judge of the apex court.
    • A month later, the government introduced a bill to create the National Judicial Appointments Commission (NJAC).
    • The NJAC Act was passed by Parliament in December 2014.
    • In October 2015, the SC struck down the NJAC Act, ruling that it would affect the independence of the judiciary vis-à-vis the executive.
    • Following striking down of the NJAC Act, the SC directed the government to propose a new memorandum of procedure (MoP) for appointments to the higher judiciary.
    • The draft government sent to the Court allowed the government to reject any name recommended by the Collegium on grounds of national security and made it compulsory for the Collegium to justify its selection.
    • The Collegium rejected these clauses and the MoP could never be finalised.
    • The government sat on the appointments that the Collegium had recommended months ago.
    •  In April 2016, 170 proposals for appointments to the high courts were pending at that time.

    SC’s perceived reluctance  to question executive after 2017

    • Appointments and transfers ceased to be a problem because the Collegium accepted the appointments and transfers.
    • The Court considered that the Aadhaar Bill could be passed as a Money Bill, validated the Electoral Bonds Act.
    • The SC also abstained from dealing with sensitive issues like the abolition of Article 370 or the Citizenship Amendment Act.
    • This modus operandi of the court, when applied to Aadhaar, created a fait accompli.

    3 questions over the SC’s role

    • 1) The court’s reluctance to question the government on contentious issues — from J&K to misuse of sedition law or the NRC — is disturbing.
    • 2) The manner in which the judiciary has addressed allegations against itself — Kalikho Pul or Prasad Education Trust or on sexual harassment — gives a handle to those in power.
    • 3) The independence of the judiciary is inevitably affected by the acceptance of post-retirement jobs.

    Consider the question “While playing its role, judiciary faces several challenges from the other organs of the democracy. In light of this, examine the challenges judiciary in India faces from the executive.”

    Conclusion

    Supreme Court’s apparent reluctance to question government on consequential issues affects its moral authority.

  • Kesavananda Bharati: The petitioner who saved democracy

    Kesavananda Bharati (80), the sole unwitting petitioner in the historic Fundamental Rights case which prevented the nation from slipping into a totalitarian regime has passed away.

    Who was Kesavananda Bharati?

    • Kesavananda Bharati was the head seer of the Edneer Mutt in Kasaragod district of Kerala since 1961.
    • He left his signature in one of the significant rulings of the Supreme Court when he challenged the Kerala land reforms legislation in 1970.

    What was his case?

    • A 13-judge bench was set up by the Supreme Court, the biggest so far, and the case was heard over 68 working days spread over six months.
    • The Bench gave 11 separate judgments that agreed and disagreed on many issues but a majority judgment of seven judges were stitched together by then CJI SM Sikri on the eve of his retirement.
    • However, the basic structure doctrine, which was evolved in the majority judgment, was found in the conclusions of the opinion written by one judge — Justice H R Khanna.

    What was the case about?

    • The case was primarily about the extent of Parliament’s power to amend the Constitution.
    • First, the court was reviewing a 1967 decision in Golaknath v State of Punjab which, reversing earlier verdicts, had ruled that Parliament cannot amend fundamental rights.
    • Second, the court was deciding the constitutional validity of several other amendments.
    • Notably, the right to property had been removed as a fundamental right, and Parliament had also given itself the power to amend any part of the Constitution and passed a law that it cannot be reviewed by the courts.
    • The executive vs judiciary manoeuvres displayed in the amendments ended with the Kesavananda Bharati case, in which the court had to settle these issues conclusively.
    • Politically, the case represented the fight for supremacy of Parliament led by then Prime Minister Indira Gandhi.

    What did the court decide?

    • In its majority ruling, the court held that fundamental rights cannot be taken away by amending them.
    • While the court said that Parliament had vast powers to amend the Constitution, it drew the line by observing that certain parts are so inherent and intrinsic to the Constitution that even Parliament cannot touch it.
    • However, despite the ruling that Parliament cannot breach fundamental rights, the court upheld the amendment that removed the fundamental right to property.
    • The court ruled that in spirit, the amendment would not violate the “basic structure” of the Constitution.
    • Kesavananda Bharati, in fact, lost the case. But as many legal scholars point out, the government did not win the case either.

    What is the basic structure doctrine?

    • The origins of the basic structure doctrine are found in the German Constitution which, after the Nazi regime, was amended to protect some basic laws.
    • The original Weimar Constitution, which gave Parliament to amend the Constitution with a two-thirds majority, was in fact used by Hitler to his advantage to made radical changes.
    • Learning from that experience, the new German Constitution introduced substantive limits on Parliament’s powers to amend certain parts of the Constitution which it considered ‘basic law’.
    • In India, the basic structure doctrine has formed the bedrock of judicial review of all laws passed by Parliament. No law can impinge on the basic structure.
    • What the basic structure is, however, has been a continuing deliberation. While parliamentary democracy, fundamental rights, judicial review, secularism are all held by courts as the basic structure, the list is not exhaustive.

    What was the fallout of the verdict?

    • Politically, as a result of the verdict, the judiciary faced its biggest litmus test against the executive.
    • Then government did not take kindly to the majority opinion and superseded three judges —J M Shelat, A N Grover and K S Hegde — who were in line to be appointed CJI after Justice Sikri.
    • The supersession resulted in a decades-long continuing battle on the independence of the judiciary and the extent of Parliament’s power to appoint judges.
    • But the ruling has cemented the rejection of majoritarian impulses to make sweeping changes or even replace the Constitution and underlined the foundations of modern democracy.

    Significance of the Judgement

    • The judgment introduced the Basic Structure doctrine which limited Parliament’s power to make drastic amendments that may affect the core values enshrined in the Constitution like secularism and federalism.
    • The verdict upheld the power of the Supreme Court to judicially review laws of Parliament.
    • It evolved the concept of separation of powers among the three branches of governance — legislative, executive and the judiciary.
    • The Emergency was proclaimed shortly after the judgment was delivered on April 24, 1973.
    • It proved timely and thwarted many an attempt on democracy and dignity of an individual during those dark years.

  • Office of the Attorney General and its role in contempt cases

    Attorney General of India has refused consent to a plea to initiate criminal contempt action against an actor for “scandalizing” the Supreme Court.

    Note important power, functions and limitations of AGI. A bluff can be created with the dicey statements in the prelims.

    What is the case for prior approval in Contempt Cases?

    • The prior consent in writing of the Attorney General is required for the Supreme Court to initiate criminal contempt action in a case a/c to the Contempt of Court Act, 1971.
    • AGI consent in a form of check on the much-debated suo-motu power of criminal contempt.

    Attorney General of India (AGI)

    • The AGI is the Indian government’s chief legal advisor and is a primary lawyer in the Supreme Court of India.
    • They can be said to be the advocate from the government’s side.
    • They are appointed by the President of India on the advice of Union Cabinet under Article 76(1) of the Constitution and holds office during the pleasure of the President.
    • They must be a person qualified to be appointed as a Judge of the Supreme Court ( i.e. a judge of some high court for five years or an advocate of some high court for ten years or an eminent jurist, in the opinion of the President and must be a citizen of India.).

    Functions and duties

    • The AGI is necessary for advising the Government of India on legal matters referred to them.
    • They also perform other legal duties assigned to them by the President.
    • The AGI has the right of audience in all Courts in India as well as the right to participate in the proceedings of the Parliament, though not to vote.
    • The AGI appears on behalf of Government of India in all cases (including suits, appeals and other proceedings) in the Supreme Court in which GoI is concerned.
    • They also represent the Government of India in any reference made by the President to the Supreme Court under Article 143 of the Constitution.
    • The AG is assisted by a Solicitor General and four Additional Solicitors General.

    Powers

    • The AG can accept briefs but cannot appear against the Government.
    • They cannot defend an accused in the criminal proceedings and accept the directorship of a company without the permission of the Government.
    • The AG is to be consulted only in legal matters of real importance and only after the Ministry of Law has been consulted.
    • All references to the AG are made by the Law Ministry.

    Limitations

    The AG:

    • should not advise or hold a brief against the Government of India
    • should not defend accused persons in criminal cases without the permission of the government of India
    • should not accept appointment as a director in any company without the permission of the government

    Global precedence

    • Unlike the Attorney General of the United States, the AGI does not have any executive authority.
    • Those functions are performed by the Law Minister of India.
    • Also, the AG is not a government servant and is not debarred from private legal practice.

  • Mulgaonkar principles in Contempt Cases

    In the criticism against the Supreme Court’s ruling that held advocate Prashant Bhushan guilty of contempt of court, his counsel has invoked the ‘Mulgaonkar Principles’, urging the court to show restraint.

    Try this MCQ:

    Q. The Mulgaonkar principles recently seen in news are related to:

    Diplomacy/ Economy/ Judiciary/ Environment

    The Mulgaonkar principles

    • S Mulgaonkar v Unknown (1978) is a case that led to a landmark ruling on the subject of contempt.
    • By a 2:1 majority, the court held Mulgaonkar not guilty of contempt although the same Bench had initiated the proceedings.
    • Justices P Kailasam and Krishna Iyer formed the majority going against then CJI M H Beg.
    • Justice Iyer’s counsel of caution in exercising the contempt jurisdiction came to be called the Mulgaonkar principles.

    What was the case about?

    • An article by A G Noorani in the newspaper about certain judicial decisions during the Emergency period, especially the Habeas Corpus case, had displeased then CJI Beg.
    • The Habeas Corpus case, often referred to as the “Supreme Court’s darkest hour” upheld the detention law, citing that even the right to life can be suspended during an emergency.
    • Justices A N Ray, Beg, Y V Chandrachud and P N Bhagwati formed the majority while Justice H R Khanna was the sole dissenter.

    What did the ruling say?

    • The first rule in the branch of power is a “wise economy of use by the Court of this branch of its jurisdiction”.
    • The Court will act with seriousness and severity where justice is jeopardized by a gross and/or unfounded attack on the judges, where the attack is calculated to obstruct or destroy the judicial process.
    • The court is willing to ignore, by a majestic liberalism, trifling and venial offenses-the dogs may bark, the caravan will pass.
    • The court will not be prompted to act as a result of an easy irritability.

     

  • Tweets against CJI amounts to Criminal Contempt

    A three-judge Bench of the Supreme Court has found a famous civil rights lawyer guilty of criminal contempt by ‘scandalizing the court’.

    Try this question for mains:

    Q.What is Contempt of Court? Discuss, how free speech can lead to the contempt of courts?

    Contempt of Court

    • According to the Contempt of Courts Act, 1971, contempt of court can either be civil contempt or criminal contempt.
    • Civil contempt means willful disobedience to any judgment, decree, direction, order, writ or another process of a court or willful breach of an undertaking given to a court.
    • On the other hand, criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which
    1. Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or
    2. Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
    3. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

    What did the court rule in this case?

    • The tweets had the effect of attempting to destabilize Indian democracy.
    • A defamatory publication concerning “the judge is a serious impediment to justice”.
    • The court could not ignore the disrespect and disaffection created by the “scurrilous” tweets.
    • If such an attack is not dealt with a requisite degree of firmness, it may affect the national honour and prestige in the comity of nations.

    A suo motu action

    • The prior consent of the Attorney General (AG) of India is not required to suo motu initiate the inherent contempt powers of the Supreme Court.
    • The Contempt of Court Act of 1971 cannot limit this power of the court. The statute only provides the procedure in which such contempt is to be initiated.
    • The suo motu contempt powers of the top court are drawn from Article 129 of the Constitution, which says the Supreme Court, as a court of record, has the power to punish for contempt of itself.

    What would be the penalty?

    • The Contempt of Court Act of 1971 punishes with imprisonment that may extend to six months or fine of ₹ 2,000 or both.
    • This is provided in case the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.

    Also read:

    Explained: What is Contempt of Court?

  • Judiciary and the challenges ahead

    The article analyses the role of the judiciary in democracy and the challenges it has been facing.

    Challenges to democracy

    • Growing lack of faith among many Indians in the functioning of the Supreme Court (SC).
    • The politicisation of the civil service and the police.
    • The creation of a cult of personality
    • The intimidation of the media.
    • The use of tax and investigative agencies to harass and intimidate independent voices.
    • The refusal to do away with repressive colonial-era laws and instead the desire to strengthen them.
    • The undermining of Indian federalism by the steady whittling down of the powers of the states by the Centre.

    Role and challenges judiciary faces

    • In recent years the Supreme Court has done little to stop or stem the degradation of democracy.
    • Some examples: Court’s refusal to strike down laws like UAPA that should have no place in a constitutional democracy.
    • Its unconscionable delay in hearing major cases.
    • The COVID-19 crisis has accelerated trend towards authoritarianism and the centralisation of power.
    • But the hearings and orders of the past few months show, the Supreme Court seems unable or unwilling to check these ominous trends.
    • The failure of the SC is in part a failure of leadership.
    • One chief justice has accepted a Governorship immediately on retirement, and another has accepted a Rajya Sabha seat.
    • Powers of the Master of the Roster are imperfectly defined, and can lead themselves to widespread misuse by the incumbent.

    Consider the question “Examine the role of the judiciary as the guardian of the Constitution. What are the challenges judiciary facing the judiciary in recent times?”

    Conclusion

    Time has come for all the serving justices in the highest court of the land to think seriously about the ever-increasing gap between their calling as defined by the Constitution, and the direction the Court is now taking.

  • Issue of contempt of court

    The concept of contempt of court has been in the news recently. This article analyses the issue and draws on the approach adopted by the British judiciary.

    Issues with the concept of contempt

    • The concept of contempt is a centuries-old British law abolished in 2013.
    • At the time the British Law Commission said that one of the intentions for contempt of court was to hide judicial corruption.
    • The concept, therefore, clashed with the need for transparency but also freedom of speech.

    Let’s look into some comment’s from judges

    • In1968, a British judge, had this to say of the Law of Contempt “We will not use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. “
    • In a 2008 lecture by Justice Markandey Katju noted that “The test to determine whether an act amounts to contempt of court or not is this: Does it make the functioning of judges impossible or extremely difficult? If it does not, then it does not amount to contempt of court even if it’s harsh criticism”.

    Way forward

    • Whilst justice is important, judges must not take themselves too seriously.
    • Even if their amour propre is offended, it does not mean the institution has been questioned or justice brought into disrepute.
    • Judges deliver justice, they do not embody it.
    • They should never forget their Court is supreme because it’s final not because it’s infallible.
    • When they lapse they can be criticised, but of course, politely and fairly.

    Conclusion

    Indian Supreme Court hopefully pay attention to this aspect while delivering the judgement on the contempt cases.

  • Explained: What is Contempt of Court?

    Contempt of court, as a concept is back in the news after the proceeding by the Supreme Court of India, on its own motion, against a senior Delhi-based advocate-activist.

    Try this question for mains:

    Q.What is Contempt of Court? Discuss, how free speech can lead to the contempt of courts?

    What is Contempt of Court?

    • It seeks to protect judicial institutions from motivated attacks and unwarranted criticism, and as a legal mechanism to punish those who lower its authority.

    How did the concept of contempt come into being?

    • The concept of contempt of court is several centuries old.
    • In England, it is a common law principle that seeks to protect the judicial power of the king, initially exercised by him, and later by a panel of judges who acted in his name.
    • Violation of the judges’ orders was considered an affront to the king himself.
    • Over time, any kind of disobedience to judges, or obstruction of the implementation of their directives, or comments and actions that showed disrespect towards them came to be punishable.

    What is the statutory basis for contempt of court?

    • There were pre-Independence laws of contempt in India. Besides the early High Courts, the courts of some princely states also had such laws.
    • When the Constitution was adopted, contempt of court was made one of the restrictions on freedom of speech and expression.
    • Separately, Article 129 of the Constitution conferred on the Supreme Court the power to punish contempt of itself.
    • Article 215 conferred a corresponding power on the High Courts.
    • The Contempt of Courts Act, 1971, gives statutory backing to the idea.

    What are the kinds of contempt of court?

    The law codifying contempt classifies it as civil and criminal.

    • Civil contempt is fairly simple. It is committed when someone willfully disobeys a court order or wilfully breaches an undertaking given to the court. However, Criminal contempt is more complex.
    • It consists of three forms: (a) words, written or spoken, signs and actions that “scandalise” or “tend to scandalise” or “lower” or “tends to lower” the authority of any court (b) prejudices or interferes with any judicial proceeding and (c) interferes with or obstructs the administration of justice.
    • The rationale for this provision is that courts must be protected from tendentious attacks that lower its authority, defame its public image and make the public lose faith in its impartiality.
    • The punishment for contempt of court is simple imprisonment for a term up to six months and/or a fine of up to ₹. 2,000.

    What does not account to contempt?

    • Fair and accurate reporting of judicial proceedings will not amount to contempt of court.
    • Nor is any fair criticism on the merits of a judicial order after a case is heard and disposed of.

    Is truth a defence against a contempt charge?

    • For many years, the truth was seldom considered a defence against a charge of contempt.
    • There was an impression that the judiciary tended to hide any misconduct among its individual members in the name of protecting the image of the institution.
    • The Act was amended in 2006 to introduce truth as a valid defence if it was in the public interest and was invoked in a bonafide

  • The issue of powers of Speaker and Court

    The article examines the larger issue of powers of the Speaker under 10th Schedule and the current interim order of the Rajasthan High Court.

    Context

    • The Rajasthan High Court had admitted the petition by the Congress faction group challenging the notice of the Speaker.
    • In the interim order, the High Court had ordered to maintain the status quo.

    Why Kihoto Hollohan Case matters

    • The Kihoto Hollohan decision of the Supreme Court delivered in 1992 forms the basis in such decisions.
    • The Constitution Bench which heard it was split 3:2.
    • The majority on the bench upheld the constitutionality of the Tenth Schedule of the Constitution.
    • The High Court is not empowered to unsettle Kihota Hollohan and must apply its ratio that the Chairman/Speaker is the final arbiter on the disqualification of a member.
    • Rajasthan High Court has raised the issue about whether disqualification under Tenth Schedule is applicable in the case of “intra-party dissent”.
    • Para 2(1) a of 10th Schedule deals with disqualification of a member of a House belonging to any party “if he has voluntarily given up his membership of such political party”.

    Let’s look at what the Supreme Court said  in Kihoto Hollohan case:

    “paragraph 2 of the Tenth Schedule of the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected members of Parliament and the legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended”.

    Consider the question “Examine the issue of powers of Speaker/Chairman in the matters of disqualification of the member against the powers of the Courts in such matters. What are the reasons for frequent frictions between the two authorities on this matter?”

    Conclusion

    The high courts and the Supreme Court routinely refuse to interfere in matters where the concerned authority has merely issued a show-cause notice or granted an opportunity of being heard. So, it must fix the issue raised by the Rajasthan High Court interim order.

  • Issues with contempt of court

    The article discusses the issues that law for contempt of the court give rise to. The practice has monarchical origins. Its continuance conflicts with the ideals of democracy. 

    Objective

    • The objective for contempt is stated to be to safeguard the interests of the public if the authority of the Court is denigrated and public confidence in the administration of justice is weakened or eroded.
    •  Need to “respect the authority and dignity of the court” has monarchical origins.

    Issues in India

    • With adjudicatory role having been handed over to judges, showing extreme deference to judges does not sit well with the idea of a democracy.
    • But the definition of criminal contempt in India is extremely wide, and can be easily invoked.
    •  Justice V.R. Krishna Iyer famously termed the law of contempt as having a vague and wandering jurisdiction, contempt law may unwittingly trample upon civil liberties.
    • Criminal contempt is completely asynchronous with our democratic system which recognises freedom of speech and expression as a fundamental right.
    • Excessively loose use of the test of ‘loss of public confidence’, combined with a liberal exercise of suo motu powers, can be dangerous.
    •  It can amount to the Court signalling that it will not suffer any kind of critical commentary about the institution at all.

    Lessons from other democracies

    • Contempt has practically become obsolete in foreign democracies.
    • Canada ties its test for contempt to real, substantial and immediate dangers to the administration.
    • American courts also no longer use the law of contempt in response to comments on judges or legal matters.
    • In England, too, the legal position has evolved.

    Approach of Indian judiciary

    • Truth and good faith were not recognised as valid defences until 2006, when the Contempt of Courts Act was amended.
    • Indian courts have not been inclined to display the same maturity and unruffled spirit as their peers in the other democracies.

    Consider the question  “A law for criminal contempt is completely asynchronous with our democratic system which recognises freedom of speech and expression as a fundamental right. Examine the issue in India context and suggest the major to strike the balance.”

    Conclusion

    Besides needing to revisit the need for a law on criminal contempt, even the test for contempt needs to be evaluated. If such a test ought to exist at all, it should be whether the contemptuous remarks in question actually obstruct the Court from functioning. It should not be allowed to be used as a means to prevent any and all criticism of an institution.