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Subject: Judiciary

  • Judiciary’s tryst with technology

    COVID pandemic has been changing many aspects of our life and forcing us to innovate or embrace the novel changes. The judiciary is not immune to this change. This article advocates for the adoption and popularization of online court. But there were several attempts at the adoption of technology in the working of courts even before the pandemic. Time has now come to its adoption on a wider scale.

    Three types of courts in our justice delivery system

    • First, conventional courts located in court complexes where judges, lawyers and litigants are physically present.
    • Second, online courts where the judge is physically present in the courtroom but the lawyer or litigant is not.
    • This is the present arrangement, except that now the courtroom is the residential office of the judge, due to the lockdown.
    • Third, virtual courts where there is no judge, lawyer or litigant and a computer takes a decision based on the inputs of the litigant.

    Pilot project with Tihar Jail

    • The pilot was for dealing with routine remand cases of prisoners.
    • The procedure postulated prisoners being produced in court, not physically but through video conferencing (VC), hence an online court.
    • The pilot project started tentatively with some hiccups but proved to be a success.
    • Now several courts have adopted the online process with varying degrees of commitment.

    District courts and High Courts’ adoption of online route

    • A few district judges have taken a step forward and recorded the statement of parties in cases of divorce by mutual consent.
    • As of now, several such cases, including those involving NRIs, are dealt with through VC in online courts.
    • Punjab and Haryana judges have gone even further ahead. The online courts record the expert evidence of doctors from PGIMER through VC.
    • This has freed the doctors from time-consuming trips to the courts and has resulted in savings of several crores for the exchequer.
    • A determined and concerted effort is necessary to popularise online courts at the district level.
    • Some high court judges in Delhi and Punjab and Haryana have completely dispensed with paper.
    • In these high courts, everything is on a soft copy, through e-Filing and scanned documents.
    • Lawyers and judges have made necessary adjustments to the new regime and the cases are conveniently heard and decided in “paperless courts”.
    • A few other high courts initiated similar steps, but have yet to institutionalise “paperless courts”.

    What are the problems?

    • Unfamiliarity with the medium of communication is the major issue. Judges are simply not used to consciously facing a camera generally and in particular while hearing a case.
    • Similarly, lawyers find it difficult to comfortably argue while seated.
    • Body language, facial expressions, the tone and tenor, both of the judge and the lawyer, make for important signals and clues which cannot be captured in VC.
    • Some technical problems in conducting online hearings have also surfaced. The bandwidth is not adequate or stable enough.
    • The picture sometimes breaks or gets frozen and the voice often cracks.
    • Consultations are also a problem. Lawyers occasionally need to consult their client or the instructing advocate; judges also need to consult each other during a hearing.
    • Attention needs to be paid to these real-time issues otherwise lawyers will harbour misgivings about a fair hearing.
    • The chairman of the Bar Council of India has voiced a concern that 90 per cent of the lawyers are not computer literate or tech-savvy.

    eCourts Project: A virtual court

    • A virtual court is a unique contribution of the eCourts Project.
    • A pilot virtual court was launched in August 2018 in Delhi for traffic offences and it has been a great success.
    • Virtual courts have been successfully tried out in Delhi, Haryana, Maharashtra and Tamil Nadu.
    • A virtual court is a simple programme through which a person can find out if a challan has been issued to him or her through a search facility.
    • If a challan has been issued, the details are available online and the person may plead guilty or not guilty.
    • On a guilty plea, the minimum fine is imposed and on a not-guilty plea, the case is electronically transferred to the traffic court for trial.
    • At the end of the day, a judge reviews the cases and disposes of them electronically depending on the option exercised.
    • One judge is all it takes to manage the virtual court for Delhi or an entire state.
    • With the launch of virtual courts, the daily footfalls to the courts have drastically reduced and thousands have pleaded guilty and paid the fine electronically.

    Potential of the virtual courts

    • The virtual court system has the potential of being upscaled and other petty offences attracting a fine such as delayed payments of local taxes or compoundable offences can also be dealt with by virtual courts.
    • This will ease the burden on conventional courts and therefore must be strongly encouraged.

    Consider the question- “Covid-19 pandemic has been forcing judiciary for faster adoption of technology. Discuss the issues and advantages of the adoption of technology such as video conferencing by the judiciary”

    Conclusion

    Post lockdown, justice delivery will certainly undergo a transformation. And judges, lawyers and litigants will need to adapt to the new normal. Several countries and courts have made adjustments not only for the period of the pandemic or lockdown but also for the future. We should certainly not be left behind but must also make a roadmap to meet the challenge.

  • Kesavananda Bharati Case (1973): The judgment that upheld basic structure of India’s constitution

    Exactly 47 years ago, the Supreme Court passed its landmark judgment in Kesavananda Bharati vs State of Kerala, considered among the most significant constitutional cases in India’s judicial history.

    Major judgments of the Supreme Court are mentioned in the newscard. Aspirants are advised to memorize them all with thier key features. UPSC may ask a prelim question mentioning all these judgements and asking which of them are related/not related to the Amendments in the Constitution.  Right from the Shankari Prasad Judgment (1951) to the Ayodhya Judgement (2019), note down all important judgements.

    Background

    Amending  the Constitution

    • The Constitution of a country is the fundamental law of the land. It is based on this document that all other laws are made and enforced.
    • Under some Constitutions, certain parts are immune from amendments and are given a special status compared to other provisions.
    • Since the Indian Constitution was first adopted, debates have raged as to the extent of power that Parliament should have to amend key provisions.

    Early years of Absolute Power

    • In the early years of Independence, the Supreme Court conceded absolute power to Parliament in amending the Constitution, as was seen in the verdicts in Shankari Prasad (1951) and Sajjan Singh (1965).
    • The reason for this is believed to be that in those initial years, the apex court had reposed faith in the wisdom of the then political leadership when leading freedom fighters were serving as Parliamentarians.
    • In subsequent years, as the Constitution kept being amended at will to suit the interests of the ruling dispensation, the Supreme Court in Golaknath (1967) held that Parliament’s amending power could not touch Fundamental Rights, and this power would be only with a Constituent Assembly.

    Parliament could make any amendment

    • Article 13(2) reads, “The State shall not make any law which takes away or abridges the right conferred by this Part (Part-III) and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
    • In both the cases, the court had ruled that the term “law” in Article 13 must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power under Article 368.
    • This means Parliament had the power to amend any part of the constitution including Fundamental rights.

    The tussle between Parliament and the judiciary

    • In the early 1970s, the government of then PM Indira Gandhi had enacted major amendments to the Constitution (the 24th, 25th, 26th and 29th) to get over the judgments of the Supreme Court in RC Cooper (1970), Madhavrao Scindia (1970) and the earlier mentioned Golaknath.
    • In RC Cooper, the court had struck down Indira Gandhi’s bank nationalization policy, and in Madhavrao Scindia it had annulled the abolition of privy purses of former rulers.

    Background for the Kesavananda Bharati Case

    • All the four amendments, as well as the Golaknath judgment, came under challenge in the Kesavananda Bharati case.
    • Here, relief was sought by the religious figure Swami Kesavananda Bharati against the Kerala government vis-à-vis two state land reform laws.
    • Since Golaknath was decided by eleven judges, a larger bench was required to test its correctness, and thus 13 judges formed the Kesavananda bench.
    • Critics of the doctrine have called it undemocratic since unelected judges can strike down a constitutional amendment. At the same time, its proponents have hailed the concept as a safety valve against majoritarianism and authoritarianism.
    • Noted legal luminaries Nani Palkhivala, Fali Nariman, and Soli Sorabjee presented the case against the government.
    • The majority opinion was delivered by CJI S M Sikri, and Justices K S Hegde, A K Mukherjea, J M Shelat, A N Grover, P Jaganmohan Reddy, and H R Khanna. Justices A N Ray, D G Palekar, K K Mathew, M H Beg, S N Dwivedi, and Y V Chandrachud dissented.

    A closer win

    • By a 7-6 verdict, a 13-judge Constitution Bench ruled that the ‘basic structure’ of the Constitution is inviolable, and could not be amended by Parliament.
    • The basic structure doctrine has since been regarded as a tenet of Indian constitutional law.

    The judgment in Kesavananda Bharati

    • The Constitutional Bench, whose members shared serious ideological differences, ruled by a 7-6 verdict that Parliament should be restrained from altering the ‘basic structure’ of the Constitution.
    • The court held that under Article 368, which provides Parliament amending powers, something must remain of the original Constitution that the new amendment would change.
    • The court did not define the ‘basic structure’, and only listed a few principles — federalism, secularism, democracy — as being its part.
    • Since then, the court has been adding new features to this concept.

    ‘Basic structure’ since Kesavananda

    • The basic structure doctrine was first introduced by Justice Mudholkar in the Sajjan Singh case (1965).
    • Major features were notably propounded by Justice Hans Raj Khanna in 1973.
    • The ‘basic structure’ doctrine has since been interpreted to include the supremacy of the Constitution, the rule of law, Independence of the judiciary, doctrine of separation of powers, federalism, secularism, sovereign democratic republic, the parliamentary system of government, the principle of free and fair elections, welfare state, etc.
    • An example of its application is SR Bommai (1994), when the Supreme Court upheld the dismissal of the governments by the President following the demolition of the Babri Masjid, invoking a threat to secularism by these governments.

  • Issue of post-retirement appointments of the judges.

    The article discusses the issue of retired judges accepting government post after retirement. Such appointments have several implications. It undermines confidence in the independence of the judiciary. It also influence pre-retirement judgements delivered by the judges. The article also offers some solutions to this problem.

    The provisions in the Constitution to secure the independence of the judiciary

    • The Constitution has been conceived to provide a pride of place to the judiciary.
    • Constitutional appointees to the Supreme Court have been guaranteed several rights in order to secure their independence.
    • Salary: The salaries of judges and their age of retirement are all guaranteed in order to secure their independence.
    • Removal: They cannot be easily removed except by way of impeachment under Articles 124(4) and 217(1)(b).
    • They have the power to review legislation and strike it down.
    • They can also question the acts of the executive.
    • All this makes it clear that the framers of the Constitution envisaged an unambitious judiciary for which the only guiding values were the provisions of the Constitution.

    Issue of judges accepting post-retirement jobs

    • It was thought that on retirement from high constitutional office, a judge would lead a retired life.
    • Nobody ever expected them to accept plum posts.
    • But the clear demarcation between the judiciary and executive got blurred as many judges over the years began to accept posts offered by the government.
    • A few years ago, a former Chief Justice of India (CJI) was made a Governor by the ruling party.
    • Now, we have the case of a former CJI, Ranjan Gogoi, being nominated by the President to the Rajya Sabha and taking oath as Member of Parliament.
    • Pre-retirement judgements under cloud: During his tenure as CJI, Justice Gogoi presided over important cases such as Ayodhya and Rafale where all the decisions went in favour of the government.
    • This gave rise to the impression that his nomination was a reward for these ‘favours’.
    • Thus his appointment — and that too within a few months of his retirement — not only raised eyebrows but came in for severe condemnation from varied quarters.
    • Loss of confidence: People are fast losing confidence in the so-called independent judiciary.
    • In 2013 Arun Jaitley, who was also a senior Advocate, ironically said that legislature was creating post-retirement avenues for Judges in every legislation.
    • He also said that post-retirement job influences pre-retirement judgements.
    • It is in this context that the appointment of Mr Gogoi has to be perceived.

    Did Constitution makers intend to nominate Judges?

    • Mr Gogoi’s view that membership of the Rajya Sabha was not a job but a service, and that once the President nominated him the call of duty required him to accept it, only created the impression that the judiciary is pliant.
    • A bare reading of Article 80(3) of the Constitution only envisages the President to nominate “persons having special knowledge in literature, science, art and social service” as members to the Rajya Sabha.
    • It is difficult to imagine that the Constitution-makers had in mind a retired CJI when framing this provision.

    A direct question based on the issue can be asked, like “What are the implications of post-retirement appointments of the judges? Give suggestions to deal with this problem”.  So, take note of the various issues and their solutions discussed here.

    Way forward

    • If post-retirement appointments are going to undermine confidence in the judiciary and in a constitutional democracy.
    • Enact law or amend Constitution: It is time to have a law in place either by way of a constitutional amendment or a parliamentary enactment barring such appointments.
    • This is the only way to secure the confidence of the people and prevent post-retirement appointments.
    • Increase pension: Judges can be compensated by being given their last drawn salary as a pension.
    • Retirement age can be increased: Also, the age of retirement for judges can be increased by a year or two.
    • This will undo the damage caused by post-retirement jobs.

    Conclusion

    The appointments of persons who have held constitutional office will undermine the very constitutional values of impartiality in the dispensation of justice. So, enacting a law to bar such appointments or amendment to the Constitution would be the step in the right direction.

  • What is Open Court System?

    The Supreme Court has invoked its extraordinary Constitutional powers under Article 142 to step away from the convention of open court hearings. It deemed all restrictions imposed on people from entering, attending or taking part in court hearings as lawful in the wake of the COVID-19 pandemic.

    What are Open Courts?

    • The Open court principle requires that court proceedings presumptively be open and accessible to the public and to the media.
    • Open courts are normal court where proceedings of the court are conducted where every person is allowed to watch the proceedings of the court.
    • There are instances where it is not practical to accommodate persons other than parties to the proceedings. Therefore, such proceedings are held in camera.
    • This means that the proceedings are held in a closed room where the public will not have access to watch the proceedings.
    • In criminal cases like rape, it is necessary to protect the identity and modesty of the victim.

    Why did the Supreme Court deter Open Court’s norm?

    • A Bench led by CJI said these restrictions were in tune with the social distancing norms and best public health practices advocated to contain the contagion.
    • The court made it clear that public health takes precedence over conventions.
    • Every individual and institution is expected to cooperate in the implementation of measures designed to reduce the transmission of the virus.
    • Open court hearings would mean a congregation of large number of people. This would prove detrimental to the fight against the virus.

    Conclusion

    • Access to justice is fundamental to preserve the rule of law in the democracy envisaged by the Constitution of India.
    • The challenges occasioned by the outbreak of COVID-19 have to be addressed while preserving the constitutional commitment to ensuring the delivery of and access to justice to those who seek it..

    Way forward

    • Indian courts have been proactive in embracing advancement in technology in judicial proceedings.
    • Judiciary can bank on video-conferencing technologies in the wake of this unprecedented and extraordinary outbreak of a pandemic.

    Back2Basics

    Article 142 of the Indian Constitution

    • Article 142 allows the Supreme Court to pass any order necessary to do “complete justice” in any case.
    • It supplements the powers already conferred upon the Supreme Court under the Constitution to guarantee that justice is done and in doing so the Court is not restrained by lack of jurisdiction or authority of law.
    • The phrase ‘complete justice’ engrafted in Article 142(1) is the word of wide interpretation to meet situations created by legal errors or result of operation of statute law or law.
    • Thus Article 142 is conceived to give the apex court the powers to meet the situations which cannot be effectively tackled by existing provisions of law.

    Also read: 

    Supreme Court Removes Manipur MLA Under The 10th Schedule

  • The SC order on migrants labours raises several issues

    Context

    On March 31, the Supreme Court of India (SC), entertaining a writ petition under Article 32, passed an order which raises more questions than it seeks to answer.

    What were the issues involved in the writ petition?

    • The writ petition was purportedly filed in the public interest, “for redressal of grievances of migrant workers in different parts of the country”.
    • Directions which are in favour of the Union government: The Court has proceeded to issue several directions which are clearly in favour of the respondent, the Union of India.
    • The following three directions were uncalled for:

    What were the directions issued by the Supreme Court?

    • One, that under section 54 of the Disaster Management Act, 2005, persons can be punished with imprisonment, which may extend to one year, or with a fine for making or circulating a false alarm or warning.
    • Disobedience of the order including an advisory by a public servant would result in punishment under section 188 of the IPC.
    • Two, all concerned, that is the state government, public authorities and citizens will faithfully comply with directives, advisory and orders issued by the Union of India in letter and spirit in the interest of public safety.
    • Three, the media should only refer to and publish the official version of the Government of India, publishing a daily bulletin.
    • The SC observations about migrant labourers: After giving substantial reliefs to the Union of India, the SC proceeded to make mere observations about migrant labourers by directing that they should be dealt with “in a humane manner”.
    • And that “trained counsellors, community leaders and volunteers must be engaged along with the police to supervise the welfare activities of migrants”.
    • The SC has virtually absolved the government for its handling of the situation.

    What was the basis for issuing orders and issues with it

    • The basis of the directions is a statement made by the Solicitor General of India and some status reports to the effect that “the exodus of migrant labourers was triggered due to panic created by some fake/misleading news and social media”.
    • What is an issue with basis? The SC has proceeded on assumptions and surmises which were untested and unchallenged.
    • What the court should have done? In a matter of such seriousness, the least it should have done was to have appointed an amicus curiae (a friend of the court) to assist it rather than simply accept the self-serving status reports and statements made before it.
    • The Court overlooked the fact that in India, hundreds of millions of people work during the day and are paid at the end of the day and then go and buy their foodstuffs.
    • They have no savings, nor do they have foodgrains stored.
    • It is surprising that the Court, the custodian of fundamental rights, should be oblivious to this reality.

    Issue of press freedom

    • Citizens have the right to freedom of speech and expression. Press freedom is a part of this. Citizens have the right to receive information as well.
    • Article 13 (2) of the Constitution says that the state cannot make any law which takes away or abridges the fundamental rights.
    • If Parliament cannot do so, the Supreme Court — the upholder of the constitutional rights — surely cannot do so.
    • The SC has itself held in M Nagraj (2006): “A right becomes a fundamental right because it has foundational value. The fundamental right is a limitation on the power of the State. A Constitution, and in particular that part of it which protects and which entrenches fundamental rights and freedoms to which all persons in the State are to be entitled, is to be given a generous and purposive construction.”
    • The SC should not have made all media subservient to the government by directing that the former “refer to and publish the official version about the developments”.
    • Such an order could be justified only during an emergency and that too by the executive, subject to challenge before the courts.

    Conclusion

    The SC has given a carte blanche to the authorities, and citizens appear to have no avenues of redress. Most of all, by condemning the media and social media, holding them responsible for fake news, the SC has done a great disservice to the institution which provides information to citizens and upholds democracy.

  • Ayyappa and the Court

    Context

    In the several cases with potential significance, there was no effective hearing at the interim stages which created fait accompli. And which results in the status quo cementing itself.

    The Sabarimala case and ‘balance of convenience’ principle

    • Review petition pending: Millions of disciples have protested the Court’s 2018 verdict where gender equality was held to trump the tenets of the faith and rejoiced at the November 2019 order of the Chief Justice’s bench granting their cause a fresh lease of life.
    • As things stand, their review petitions are kept pending until the questions of law are determined.
    • Please to enter the temple declined: In December 2019, fervent pleas on behalf of certain women devotees to enter the temple were declined, although the 2018 verdict continued to hold the field.
    • Why declining the plea for entry matters? This was justified by the Court on a “balance of convenience”, thereby laying down a new principle for not directing the implementation of its own judgement.

    Pendency of Article 370 challenge case hearing

    • Nine judge bench: This year it was decided to put together the nine-judge bench to hear the cases on an urgent basis.
    • Kashmir case on the backburner: But with two judges from the ongoing Kashmir/Article 370 challenges also a part of the Sabarimala case, it would mean that the Kashmir issues would be put on the back burner in the middle of its hearing.
    • This is despite the advocates representing the right of women’s entry stating that they had no objection to the Kashmir cases being heard first.
    • Then, barely a day into the hearing, a strain of swine flu reached some of the members of the Bench, leading to a postponement of hearings till the middle of March.
    • Now, with a fierce pandemic enveloping the globe, the case is adjourned indefinitely.

    Criticism of administrative functioning of the SC

    • Over the last few months, the Supreme Court has been besieged by criticism of its administrative functioning.
    • Delay in the hearing of important cases: Cases that have customarily been heard with alacrity, like those concerning personal liberty, law and order and criminal investigation, have been posted after long intervals with the Government being granted the luxury of time to respond.
    • No effective hearing in cases with immediacy: Where immediacy is pre-eminent so that fait accompli may not be created, as with the validity of the Kashmir notifications, the CAA and the electoral bonds, there have been no effective hearings at the interim stage.
    • Thus, the status quo slowly cements itself.

    Reason for problems in administrative functions of the SC

    • Dual role played by the CJI: Since the early years of the judiciary, one person has been given the onerous dual charge of heading both the administrative and judicial functions of the court.
    • As a result, apart from sitting every day, reading briefs, hearing arguments and delivering detailed judgements, the Chief Justice has to also act as the final authority for all service-related matters of the Court’s 2,500 employees, issue office orders to streamline the registry.
    • The CJI also supervise measures for security and infrastructure, chair committees, correspond with and entertain judicial delegations, attend symposia, delegate subject matters among colleagues, constitute benches of varying strengths and interview candidates for the various courts.
    • In the old days, when the burden of cases was modest, these tasks would not have been challenging.
    • But in the present time, not only are they overwhelming, but they also bring in their wake a host of attacks on the person who occupies that high office.

    Need for the Chief Executive Officer in the SC

    • Administrative functioning of the SC: In all the administrative tasks, the Chief Justice is assisted by a team of registrars, who are headed by the secretary-general.
    • As they are junior judicial officers, they neither have the training nor the complete independence to take steps towards course correction.
    • The requirement of CEO: This is why the Supreme Court sorely requires a chief executive officer – an independent professional who is equipped with the day-to-day management of the Court and is not beholden to the judges in any way.
    • How it will help? The CEO will be charged with the entire mission of running the Court so that the judges can concentrate on what they are trained and experienced to do – adjudicate.
    • Operational autonomy: The CEO will, of course, have to be given adequate operational autonomy and be answerable to a committee of the Court, comprising judges and bar representatives, thereby providing for a professional process, much like in the corporate sphere.
    • With this, the judges will at least be spared the charges that they have had to withstand over the last few years.

    Conclusion

    It is only for politicians to concern themselves with public opinion, not for judges. They are weaponised by the Constitution to serve the cause of justice, and in this, as per Article 144, all civil and judicial authorities are enjoined to cooperate. Just a few blows of the gavel to any misadventures would be sufficient to send the message loud and clear: That the Court offers no sanctuary to the executive knaves.

  • Not an unfettered right

    Context

    The UN High Commissioner for Human Rights filed an application seeking to intervene as amicus curiae in the pending litigation in the Supreme Court against the Citizenship (Amendment) Act, 2019.

    What are the implications of intervention?

    • Concern over international attention: That the case has attracted the attention of the international human rights agency is a matter of concern for the Indian government.
    • International law principles: The intervention may enable the Supreme Court to read in public international law principles in determining the constitutionality of CAA.
    • Law on concepts of sovereignty: Ultimately, this would assist in laying down the law on concepts of sovereignty in addition to determining the obligations of a nation-state to the international community at large.

    Why the intervention matters?

    • Basis of the application: The application is based on the belief that the High Commissioner’s intervention will provide the Court “with an overview of the international human rights norms and standards with respect to the state’s obligations to provide international protection to persons at risk of persecution in their countries of origin”.
    • This application stands out for a number of reasons.
    • First, this is a voluntary application rather than at the invitation of the Supreme Court.
    • Second, she accepts that India is a state party and signatory to various international conventions including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Culture Rights which contain important non-discrimination clauses, including on the ground of religion.
    • India’s obligations towards migrants: India is obliged, under international law, to ensure that migrants in its territory or under its jurisdiction receive equal and non-discriminatory treatment regardless of their legal status or the documentations they possess.
    • Locus standi issue raised by India: In response, the External Affairs Ministry argued that “no foreign party has any locus standi on issues pertaining to India’s sovereignty”.
    • The High Commissioner has filed similar amicus curiae briefs on issues of pubic importance before a range of international and national judicial fora.
    • A precedent for future: This intervention, if permitted, would serve as a precedent for a number of future applications. It would also provide an opportunity for the Supreme Court to lay down the law on whether such applications interfere with national sovereignty.

    Sovereignty as responsibility

    • Defining sovereignty: International Court of Justice judge James Crawford defines sovereignty as, among other things, the “capacity to exercise, to the exclusion of other states, state functions on or related to that territory, and includes the capacity to make binding commitments under international law” and states that “such sovereignty is exercisable by the governmental institutions established within the state”.
    • Sovereignty in Indian Constitution: The Preamble to the Constitution lays out the position, wherein the people of India have resolved to constitute the Indian Republic into a sovereign and not just any one authority.
    • As such, the courts (judiciary), the government (executive) and elected legislatures (legislature) are equally sovereign authorities.
    • No one can claim exclusivity over sovereignty. Furthermore, Article 51 (c) of the Constitution directs the state to “foster respect for international law”.

    Responsibility to citizens and the international community

    • Responsibility of political authority: According to the International Commission on Intervention and State Sovereignty, “national political authorities are responsible to the citizens internally and to the international community through the UN”.
    • Constraints on sovereignty: Therefore, it is trite to say that an authority’s right to sovereignty is not unfettered. It is subject to constraints including the responsibility to protect its citizenry and the larger international community.
    • Extending Article 14: Furthermore, Article 14 extends the right to equality to all persons, which is wider than the definition of citizens. Even illegal immigrants shall, consequently, be treated by the government in a manner that ensures equal protection of Indian laws.

    Conclusion

    It is hoped that the Supreme Court will conclude that the intervention is necessary as the Court would benefit from the High Commissioner’s expertise in public international law principles.

  • Giving Human Rights Commissions more teeth

    Context

    The Madras High Court is to decide on whether the recommendations made by such panels are binding upon the state.

    A fourth branch institution

    • Enactment of the Act and its purpose: In 1993, the Indian Parliament enacted the Protection of Human Rights Act.
      • Purpose: The purpose of the Act was to establish an institutional framework that could effectively protect, promote and fulfil the fundamental rights guaranteed by the Indian Constitution.
      • To this end, the Act created a National Human Rights Commission, and also, Human Rights Commissions at the levels of the various States.
    • What is fourth branch institution: The National and State Human Rights Commissions are examples of what we now call “fourth branch institutions.”
      • According to the classical account, democracy is sustained through a distribution of power between three “branches” — the legislature, the executive, and the judiciary, with each branch acting as a check and a balance upon the others.
      • The necessity of independent bodies: The complexity of governance and administration in the modern world has necessitated the existence of a set of independent bodies, which are charged with performing vital functions of oversight.
      • Some of these bodies are constitutional bodies — established by the Constitution itself. These include, for instance, the Election Commission and the Office of the Comptroller and Auditor General.
      • Others have been established under law: for example, the Information Commission under the Right to Information Act, and Human Rights Commissions under the Protection of Human Rights Act.
    • HRC under scrutiny and criticism: In the two-and-a-half decades of their existence, however, the functioning of the Human Rights Commissions have come under scrutiny and criticism.
      • There have been the usual critiques of the politicization of autonomous bodies, and selectiveness.
      • Toothless: Even more than that, however, it has been alleged that for all intents and purposes, the Human Rights Commissions are toothless: at the highest, they play an advisory role, with the government left free to disobey or even disregard their findings.

    Limitations of NHRC

    • NHRC’s recommendations are not binding
    • NHRC cannot penalize authorities who do not implement its orders
    • JK is out of its jurisdiction
    • NHRC jurisdiction does not cover human right violations by private parties
    • 3/5 are judges, leading to more judicial touch to its functioning
    • 2/5 are also not Human rights experts. Political appointments.
    • Time limit is set to 1 year i.e. NHRC cannot entertain ca case older than 1 year
    • Limited jurisdiction over violation by armed forces
    • The act does not extend to J&K
    • Vacancies are not filled on time. Most human rights commissions are functioning with less than the prescribed Members
    • Fund crunch
    • Overload and backlog. Too many complaints. Hence, in recent days, NHRC is finding it difficult to address the increasing number of complaints
    • Bureaucratic style of functioning
     

    What the case before Madras High Court will decide?

    • Whether recommendations are mandatory or not: A Full Bench of the High Court will be deciding upon whether “recommendations” made by the Human Rights Commissions are binding upon their respective State (or Central) governments, or whether the government is entitled to reject or take no action upon them.
    • What are the power of HRC under the act? Under the Protection of Human Rights Act, the Human Rights Commissions are empowered to inquire into the violations of human rights committed by state authorities, either upon petitions presented to them, or upon their own initiative.
      • Powers of civil courts: While conducting these inquiries, the Commissions are granted identical powers to that of civil courts, such as the examining witnesses, ordering for documents, receiving evidence, and so on.
      • These proceedings are deemed to be judicial proceedings, and they require that any person, who may be prejudicially affected by their outcome, has a right to be heard.
    • Issue over the meaning of recommend: The controversy before the Madras High Court stems from the issue of what is to be done after the Human Rights Commission completes its enquiry, and reaches a conclusion that human rights have been violated.
      • Section 18 of the Protection of Human Rights Act empowers the Human Rights Commission to “recommend” to the concerned government to grant compensation to the victim, to initiate prosecution against the erring state authorities, to grant interim relief, and to take various other steps.
      • The key question revolves around the meaning of the word “recommend.”
    • Opposite conclusion by different benches: The Full Bench of the Madras High Court is hearing the case because different, smaller benches, have come to opposite conclusions about how to understand the word “recommend” in the context of the Protection of Human Rights Act.
      • According to one set of judgments, this word needs to be taken in its ordinary sense. To “recommend” means to “put forward” or to “suggest” something or someone as being suitable for some purpose.
      • Ordinarily, a mere “suggestion” is not binding. Furthermore, Section 18 of the Human Rights Act also obligates the concerned government to “forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission”, within a period of one month.
      • The argument, therefore, is that this is the only obligation upon the government.
      • If indeed the Act intended to make the recommendations of the Commission binding upon the government, it would have said so: it would not simply have required the government to communicate what action it intended to take to the Commission (presumably, a category that includes “no action” as well).

    Why ordinary meaning of recommend needs to be rejected?

    • Argument against the ordinary meaning of “recommend”
      • Ordinary meaning and meaning within the legal framework: The first is that there is often a gap between the ordinary meanings of words and the meanings that they have within legal frameworks.
      • Legal meaning: Legal meaning is a function of context, and often, the purpose of the statute within which a word occurs has a strong influence on how it is to be understood.
      • For example, the Supreme Court has held, in the past, that the overriding imperative of maintaining judicial independence mandates that “consultation” with the Chief Justice for judicial appointments (as set out under the Constitution) be read as “concurrence” of the Chief Justice (this is the basis for the collegium system).
      • Recently, while interpreting the Land Acquisition Act, the apex court held that the word “and” in a provision had to be construed as “or”.
      • Of course, there needs to be a good reason for interpretations of this kind.
    • Constitutional commitment: This brings us to the purpose of the Human Rights Act, and the importance of fourth branch institutions.
    • Ensure adequate realisation of constitutional commitment: As indicated above, the Human Rights Act exists to ensure the protection and promotion of human rights.
      • To fulfil this purpose, the Act creates an institutional infrastructure, via the Human Rights Commissions.
      • The Human Rights Commissions, thus, are bodies that stand between the individual and the state, and whose task is to ensure the adequate realisation of constitutional commitment to protecting human rights.
    • Leaving decision with the state would defeat the purpose of the act: It stands to reason that if the state was left free to obey or disobey the findings of the Commission, this constitutional role would be effectively pointless, as whatever the Human Rights Commission did, the final judgment call on whether or not to comply with its commitments under the Constitution would be left to the state authorities.
      • This, it is clear, would defeat the entire purpose of the Act.
    • Past precedents: Indeed, in the past, courts have invoked constitutional purpose to determine the powers of various fourth branch institutions in cases of ambiguity.
      • For example, the Supreme Court laid down detailed guidelines to ensure the independence of the Central Bureau of Investigation; various judgments have endorsed and strengthened the powers of the Election Commission to compulsorily obtain relevant details of candidates, despite having no express power to do so.
      • It is therefore clear that in determining the powers of autonomous bodies such as the Human Rights Commission, the role those fourth branch institutions are expected to play in the constitutional scheme is significant.
    • Powers of civil courts: And lastly, as pointed out above, the Human Rights Commission has the powers of a civil court, and proceedings before it are deemed to be judicial proceedings. This provides strong reasons for its findings to be treated — at the very least — as quasi-judicial, and binding upon the state (unless challenged).
      • Indeed, very recently, the Supreme Court held as much in the context of “opinions” rendered by the Foreigners Tribunals, using very similar logic to say that these “opinions” were binding.

    Conclusion

    The crucial role played by a Human Rights Commission — and the requirement of state accountability in a democracy committed to a ‘culture of justification’ — strongly indicates that the Commission’s recommendations should be binding upon the state. Which way the Madras High Court holds will have a crucial impact upon the future of human rights protection in India.

  • The Hidayatullah example

    Context

    It has been recently announced that the President has nominated former Chief Justice of India, Ranjan Gogoi, to the Rajya Sabha. However, the time has come for us to ask a difficult question: Should judges stop accepting post-retirement jobs offered by the government, at least for a few years after retiring, because accepting such posts could undermine the independence of the judiciary?

    The issue of post-retirement employment of the judges

    • Retirement age of judges: Unlike federal judges in the US, judges in India do not hold office for life. They remain in office until they reach the retirement age — 65 for Supreme Court judges and 62 for high court judges.
    • Protection against arbitrary removal: These judges do not hold their offices at the “pleasure” of the President. In other words, they cannot be arbitrarily removed by the government once they are appointed, and can only be impeached by a supermajority of both houses of Parliament “on the ground of proved misbehaviour or incapacity”.
    • Difficult impeachment process: The impeachment process is a very difficult one and never in the history of independent India has a judge been impeached, though attempts have sometimes been made to do so. Judges, therefore, enjoy security of tenure while holding office, which is essential for maintaining judicial independence.
    • How retirement of judges could undermine judicial independence? The retirement of judges threatens to undermine judicial independence.
      • This is because some judges — not all — are offered post-retirement employment by the government. It is often feared that a judge who is nearing retirement could decide cases in a manner that pleases the government in order to get a favourable post-retirement position.

    Not an unprecedented move

    • Former CJI Gogoi is certainly not the first retired judge to be appointed to political office.
    • In 1952, Justice Fazl Ali was appointed the Governor of Orissa, shortly after retiring from the Supreme Court.
    • In 1958, Chief Justice M C Chagla resigned from the Bombay High Court in order to become India’s Ambassador to the US at Prime Minister Nehru’s invitation.
    • In April 1967, Chief Justice Subba Rao resigned from the Supreme Court to contest elections for President.
    • In 1983, Justice Baharul Islam resigned from the Supreme Court to contest as a Congress (I) candidate for a Lok Sabha seat, after ruling in favour of Bihar’s Congress (I) chief minister, Jagannath Mishra, in a controversial case where Mishra had been accused of criminal wrongdoing and misuse of office.
    • In more recent times, Chief Justice P Sathasivam was appointed the Governor of Kerala. There are many other such examples.

    Why restrictions about employment were not included in the Constitution?

    • The Constitution provides that a retired Supreme Court judge cannot “plead or act in any court or before any authority within the territory of India”.
    • Constituent assembly debate: In the Constituent Assembly, K T Shah, an economist and advocate, suggested that high court and Supreme Court judges should not take up an executive office with the government, “so that no temptation should be available to a judge for greater emoluments, or greater prestige which would in any way affect his independence as a judge”.
      • However, this suggestion was rejected by B R Ambedkar because he felt that the “judiciary decides cases in which the government has, if at all, the remotest interest, in fact, no interest at all”.
    • Government is the largest litigant in the courts: In Ambedkar’s time, the judiciary was engaged in deciding private disputes and rarely did cases arise between citizens and the government. “Consequently”, said Ambedkar, “the chances of influencing the conduct of a member of the judiciary by the government are very remote”.
      • This reasoning no longer holds today because the government is one of the largest litigants in the courts.

    Question of independence of the judiciary

    • The question of constitutional propriety: In the words of India’s first Attorney General, M C Setalvad, all this raises “a question of constitutional propriety” relating to the independence of the judiciary.
    • After all, could the government not use such tactics to reward judges who decide cases in its favour?
    • Public perception of compromised judiciary: Further, if a judge decides highly controversial and contested cases in favour of the government and then accepts a post-retirement job, even if there is no actual quid pro quo, would this not lead to the public perception that the independence of the judiciary is compromised?

    Law Commission recommendations

    • In its 14th report in 1958, the Law Commission noted that retired Supreme Court judges used to engage in two kinds of work after retirement:
      • Firstly, “chamber practice” (a term which would, today, mean giving opinions to clients and serving as arbitrators in private disputes).
      • Secondly, “employment in important positions under the government”.
    • The Law Commission frowned upon chamber practice but did not recommend its abolition.
    • Ban on post-retirement government employment: It strongly recommended banning post-retirement government employment for Supreme Court judges because the government was a large litigant in the courts.
      • The Commission’s recommendations were never implemented.

    Conclusion

    It is about time that we start expecting the judges of our constitutional courts to follow CJI Hidayatullah’s excellent example in which he had accepted government job only after the cooling period of several years.

     

     

  • Ruling against judicial transparency

    Context

    A recent Supreme Court verdict has barred citizens from accessing court records under the RTI Act.

    What does the judgement say?

    • No access to court records through RTI: In its recent decision, in the Chief Information Commissioner v. High Court of Gujarat case, the Supreme Court, regrettably, barred citizens from securing access to court records under the Right to Information (RTI) Act.
    • Access to record through rules of High Courts: Instead, the court held that such records can be accessed only through the rules laid down by each High Court under Article 225 of the Constitution.
      • The Registry of the Supreme Court was litigating a similar case (Registrar, Supreme Court of India v. R.S. Misra) before the Delhi High Court for several years.
    • Separating the administrative and judicial side: Though the particular decision taken earlier this month does not preclude the application of the RTI Act to the administrative side of the court, it does firmly slam the door shut on accessing, under the RTI Act, the millions of court records filed on the judicial side.

    Why access to judicial records matters?

    • For holding the police accountable: A significant number of decisions taken by the courts influence our daily life. Every prosecution before a criminal court is essentially an opportunity to hold the police accountable just as every writ petition is an opportunity to hold the government accountable.
    • Opportunity to learn about commercial translations: A significant number of commercial lawsuits are opportunities to learn more about corporations and the manner in which commercial translations are executed in the country.
    • Policy decision impacted by the judiciary in PIL: In cases of public interest litigation, where the courts indulge in policymaking on the basis of the report of an amicus curiae or an expert committee set up by judges.
      • The reports of these committees are not accessible to third parties, though they may be impacted by these decisions, because they form part of the court record and are hence outside the purview of the RTI Act.
    • No question of confidentiality: There is no question of arguing for the confidentiality of these records because it is by now a well-recognised principle that all judicial proceedings must take place in open court, unless prohibited by law for reasonable purposes.

    The overriding section of RTI act- Section 22

    • The Supreme Court’s verdict in this case hinged on Section 22 of the RTI Act which states that the RTI Act shall override any other law to the extent that the latter is inconsistent with the former.
    • The Section states: “Act to have an overriding effect — The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”
    • Non-obstante clause: A clause such as Section 22 is known as non-obstante clause and is a common drafting device used by legislatures to permit certain actions regardless of what is mentioned in existing legislation.
    • Drafters aware of the possible conflict: The wording of the provision reveals that the drafters of the RTI Act were clearly aware that it may conflict with other laws and wanted to ensure that the procedure under the Act overruled the procedure in existing legislation.
      • Despite this crystal-clear wording of Section 22, the Supreme Court and, on previous occasions, the High Courts, have concluded exactly the opposite.

    Three steps to the courts reasoning 

    • No inconsistency: It concludes that there is no inconsistency between the RTI Act and the court rules.
      • This is factually incorrect because the Gujarat High Court Rules unlike the RTI Act require the submission of an affidavit stating the purpose of seeking copies of the pleadings.
      • The RTI Act requires no reasons to be provided while seeking information.
    • Issue over non-obstante clause: The court argues that “A special enactment or rule cannot be held to be overridden by a later general enactment simply because the latter opens up with a non-obstante clause unless there is a clear inconsistency between the two legislations.”
      • But that is exactly the point of an non-obstante clause.
      • The accompanying factual inaccuracy, is its conclusion that there is no inconsistency between the Gujarat High Court rules and the RTI Act.
    • Section 22 can’t be read to imply repeal of the laws: The third limb, of the court’s reasoning was its conclusion that Section 22 could not be read in a manner to imply repeal of other laws, such as the Gujarat High Court Rules.
      • The court states that if the intention was to repeal another law, the legislature would have specifically stated so in the RTI Act, as was done in Section 31 when the RTI Act repealed the previous Freedom of Information Act, 2002.
      • This reasoning is bewildering because it would render non-obstante clauses entirely useless.

    What is the issue arising out of this judgement?

    • From a citizen’s perspective, this decision is problematic for two reasons.
      • Not all High Courts allow access to all: Most High Court Rules allow only parties to a legal proceeding to access the records of a case. Some High Courts may allow third parties to access court records if they can justify their request.
      • This is entirely unlike the RTI Act, where no reasons are required to be provided thereby vastly reducing the possibility of administrative discretion.
      • Logistical difficulties: The second reason this judgment spells bad news is that unlike the RTI Act, the procedure under the Rules of most High Courts is challenging from a logistical perspective, apart from lacking in any significant safeguards.
      • An application under the RTI Act can be made by post, with the fee being deposited through a postal order.
      • The procedure is simple enough to enable most citizens to file RTI applications by themselves.
      • Not so for the procedure under the High Court Rules.
      • Most courts require the physical filing of an application: Most High Courts and the Supreme Court require the physical filing of an application with the Registry, and a hearing before a judge to determine whether records should be given.

    Conclusion

    The Supreme Court fails to understand that the judiciary’s track record of transparency is vastly inferior when compared to other arms of the state. In today’s world where every public institution is striving to become more transparent, the continued resistance from the judiciary to making itself transparent in a meaningful manner will have an eroding effect on its legitimacy.