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Subject: Judiciary

  • Relations between judiciary and legislature

    The article discusses the relation between the judiciary and the legislature. Recent development in Rajasthan assembly serves as the backdrop.

    Context

    • The political tussle in Rajasthan entered the High Court and the Supreme Court.
    • The Supreme Court itself proposed to rule on the larger question of the jurisdiction of courts to entertain such pleas.

    Historical background

    • The President of India made a presidential reference to the Supreme Court on the relative powers of legislative assemblies and constitutional courts.
    • The Supreme Court held that there is a broad separation of essential powers of each organ of the State.
    • However, the Court went on to hold that a judge who entertains a petition challenging any order of the legislature does not commit contempt of the said legislature.
    • Since then court have restrained themselves from interfering in the workings of legislative assemblies or Parliament is concerned.
    • The sole exception is under the anti-defection law-after a final order of disqualification has been passed.

    Let’s look into Kihoto Hollohan’s case

    • Constitution bench of the Supreme Court in 1992 held that the Speaker acting in a disqualification matter acts as a tribunal and is subject to judicial review.
    • However, the same judgment makes it clear that the Court will not intervene at an interim stage.
    • The same judgment further holds the Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House.

    Let’s now look into Rajasthan episode

    • In this case, issuance of a possible disqualification notice by the Speaker, has been contested in constitutional courts.
    •  Even in routine petitions against notices of proposed administrative actions, the petitioner is told to answer the show cause notice and to challenge the final action only.
    • The Rajasthan High Court, however, entertained a petition to challenge the Speaker’s authority to decide, if MLAs had committed an act of defection.
    • The Rajasthan High Court reserved its judgment, requested the Speaker to defer further proceedings and proceeded to direct him to await judgment.

    Co-equality of Constitutional authorities

    • Rajasthan assembly Speaker moved the Supreme Court, questioning the court’s power to direct a Constitutional authority.
    • The principle of law applied is that Constitutional authorities cannot issue directions to each other.
    • They can, at best, make a polite request.
    • The single judge in Calcutta, recorded in his judgment that the Supreme Court was only co-equal with the High Court, as a Constitutional Court.
    • Appellate powers of the Supreme Court did not make it a superior authority to which the High Court was subordinate.
    • Ever since, the Supreme Court has been careful to couch its orders as requests to any High Court, or Constitutional authority.
    • Constitutional courts have followed the same principle, in addressing other Constitutional authorities.

    Role of judiciary in maintaining the balance

    • Unnecessary conflict between organs of state may well invite some Speaker, backed by a solid majority at State and Centre, to defy the courts.
    • Courts are apolitical but keep getting pulled into political thickets, especially in matters of mass defections resulting in regime change.
    • The walls of separation between constitutional organs, once breached, cannot be then repaired against future intrusions.

    Consider the question “Analyse fine balance Indian Consitution strikes between the various Constitutional authorities. Also examine how role of judiciary in dealing with the anti-defection law.”

    Conclusion

    Even under a sovereign Constitution, parliamentary and legislative supremacy in their areas of working must be respected.

  • What is Plea Bargaining and how does it work?

    Many members of a religious faction belonging to different countries have obtained release from court cases in recent days by means of plea bargaining. They were accused of violating visa conditions by attending a religious congregation in Delhi.

    Try this question for mains:

    Q.What is Plea Bargaining and how does it work? Discuss the rationale behind and benefits in reducing the burden on Judiciary.

    What is Plea Bargaining?

    • Plea bargaining refers to a person charged with a criminal offence negotiating with the prosecution for a lesser punishment than what is provided in law by pleading guilty to a less serious offence.
    • It is common in the US and has been a successful method of avoiding protracted and complicated trials.
    • As a result, conviction rates are significantly high there. It primarily involves pre-trial negotiations between the accused and the prosecutor.
    • It may involve bargaining on the charge or in the quantum of sentence.

    When was it introduced in India?

    • In India, the concept was not part of law until 2006. It was introduced in 2006 as part of a set of amendments to the CrPC as Chapter XXI-A, containing Sections 265A to 265L.
    • There has always been a provision in the Code of Criminal Procedure for an accused to plead ‘guilty’ instead of claiming the right to a full trial, but it is not the same as plea bargaining.
    • The Law Commission of India, in its 142nd Report, mooted the idea of “concessional treatment” of those who plead guilty on their own volition but was careful to underscore that it would not involve any plea bargaining or “haggling” with the prosecution.

    How does it work?

    • Unlike in the U.S. and other countries, where the prosecutor plays a key role the Indian code makes plea bargaining a process that can be initiated only by the accused.
    • Further, the accused will have to apply to the court for invoking the benefit of bargaining.

    In what circumstances is it allowed?

    • Cases for which the practice is allowed are limited.
    • Only someone who has been charge-sheeted for an offence that does not attract the death sentence, life sentence or a prison term above seven years can make use of the scheme under Chapter XXI-A.
    • It is also applicable to private complaints of which a criminal court has taken cognizance.
    • Other categories of cases that cannot be disposed of through plea bargaining are those that involve offences affecting the “socio-economic conditions” of the country or committed against a woman or a child below 14.

    How to avail this?

    • The applicant should approach the court with a petition and affidavit stating that it is a voluntary preference and that he has understood the nature and extent of punishment provided in law for the offence.
    • The court would then issue a notice to the prosecutor and the complainant or victim, if any, for a hearing.
    • The voluntary nature of the application must be ascertained by the judge in an in-camera hearing at which the other side should not be present.
    • Thereafter, the court may permit the prosecutor, the investigating officer and the victim to hold a meeting for a “satisfactory disposition of the case”.
    • The outcome may involve payment of compensation and other expenses to the victim by the accused.

    After approval

    • Once mutual satisfaction is reached, the court shall formalize the arrangement by way of a report signed by all the parties and the presiding officer.
    • The accused may be sentenced to a prison term that is half the minimum period fixed for the offence.
    • If there is no minimum term prescribed, the sentence should run up to one-fourth of the maximum sentence stipulated in the law.

    What is the rationale for the scheme? What are its benefits?

    • The Justice Malimath Committee on reforms of the criminal justice system endorsed the various recommendations of the Law Commission with regard to plea bargaining.
    • Some of the advantages it culled out from earlier reports are that the practice would ensure a speedy trial, end uncertainty over the outcome of criminal cases, save litigation costs and relieve the parties of anxiety.
    • It would also have a dramatic impact on conviction rates.
    • Prolonged incarceration of undertrials without any progress and overcrowding of prisons were also other factors that may be cited in support of reducing pendency of cases and decongesting prisons.
    • Moreover, it may help offenders make a fresh start in life.

    Do courts have reservations?

    • Case law after the introduction of plea bargaining has not developed much as the provision is possibly not used adequately.
    • However, earlier judgments of various courts in cases in which the accused enter a ‘guilty’ plea with a view to getting lesser sentences indicate that the judiciary may have reservations.
    • Some verdicts disapprove of bargaining with offenders, and point out those lenient sentences could be considered as part of the circumstances of the case after a regular trial.
    • Courts are also very particular about the voluntary nature of the exercise, as poverty, ignorance and prosecution pressure should not lead to someone pleading guilty of offences that may not have been committed.

  • Padmanabhaswamy Temple Verdict by the Supreme Court

    Reversing the 2011 Kerala High Court decision, the Supreme Court upheld the right of the Travancore royal family to manage the property of deity at Sree Padmanabha Swamy Temple in Thiruvananthapuram.

    Try this question from CSP 2016:

    Q.In the context of the history of India, consider the following pairs

    Term              Description
    1.  Eripatti Land, revenue from which was set apart for the maintenance of the village tank
    2. Taniyurs Villages donated to a single Brahmin or a group of Brahmins
    3. Ghatikas Colleges generally attached to the temples

    Which of the pairs given above is/are correctly matched?

    a) 1 and 2

    b) 3 only

    c) 2 and 3

    d) 1 and 3

    What did the apex Court say?

    • The court said that as per customary law, the shebait rights (right to manage the financial affairs of the deity) survive with the members of the family even after the death of the last ruler.
    • The ruling ends the legal battle the temple and members of the royal family have fought with the government for decades over control of one of the richest temples in the world.

    What is the case about?

    • The central legal question was whether the heirs of the last Ruler of Travancore could claim to be the “Ruler of Travancore” after the death of the ruler in 1991.
    • The court examined this claim within the limited meaning of that term according to the Travancore-Cochin Hindu Religious Institutions Act, 1950 to claim ownership, control and management of the ancient Temple.

    Earlier cases of ownership: A background

    • All the temples which were under the control and management of the erstwhile Princely States of Travancore and Cochin were under the control of the Travancore and Cochin Devaswom Boards before 1947.
    • However, as per the Instrument of Accession signed, since 1949, the administration of the Padmanabhaswamy Temple was “vested in trust” in the Ruler of Travancore.
    • The state of Kerala was carved out in 1956 but the temple continued to be managed by the erstwhile royals.

    The legal battle

    • In 1971, privy purses to the former royals were abolished through a constitutional amendment stripping their entitlements and privileges.
    • The move was upheld in court in 1993 and the last ruler of Travancore who died during the pendency of this case continued to manage the affairs of the temple till then.
    • In 1991, when the last ruler’s brother took over the temple management, it created a furore among devotees who moved the courts leading to a long-drawn legal battle.

    Is the temple the property of the royal family?

    • The character of the temple was always recognised as a public institution governed by a statute.
    • The argument of the royal family is that the temple management would vest with them for perpetuity, as per custom.
    • Even though the last ruler executed a detailed will bequeathing his personal properties, he had not included the Sree Padmanabhaswamy Temple as his personal property or dealt with it in his will.

    What about the treasure in the vaults?

    • A consequence of who has administrative rights over the temple is whether the vaults of the temple will be opened.
    • In 2007, the heir claimed that the treasures of the temple were the family property of the royals.
    • Several suits were filed objecting to this claim and a lower court in Kerala passed an injunction against the opening of the vaults.
    • The Kerala High Court in the 2011 ruling passed an order that a board be constituted to manage the affairs of the temple, ruling against the royal family.

    What impact would this ruling have?

    • Since 2011, the process of opening the vaults has led to the discovery of treasures within the Padmanabhaswamy temple, prompting a debate on who owns temple property and how it should be regulated.
    • Despite being a secular country that separates religion from the affairs of the state, Hindu temples, its assets are governed through statutory laws and boards heavily controlled by state governments.
    • This system came into being mainly through the development of a legal framework to outlaw untouchability by treating temples as public land; it has resulted in many legal battles.

  • Making justice accessible through live streaming

    Livestreaming of the judicial proceeding goes a long way in increasing the access of justice which is granted under Article 21. This article examines the evolution in judiciary and making justice accessible.

    Judiciary adapting to changes

    •  As the lockdown began, the Court had to quickly find the technology and create protocols for virtual courts and e-hearings.
    • Before this, there was an open courtroom that the public could access.
    • This protected the right to access justice, guaranteed under Article 21 of the Constitution.

    Access to justice without physical classroom

    • Now that the Court is proactively adopting technology, it must expand the right of access to justice by live-streaming proceedings.
    • Further, court proceedings must also be documented and preserved for future generations.
    • Both audio-visual recordings and transcripts of oral arguments should be maintained for this purpose.

    Evolution of access to court

    • The Supreme Court maintained no public record of its own proceedings in the past.
    • Nor were its proceedings broadcast live for public viewing.
    • Over time, security concerns meant that the public could only enter courtrooms in the SC with a pass.
    • Due to space constraints, law students were not permitted to enter courtrooms on Mondays and Fridays when the Court heard fresh matters.

    A case that led to live broadcast of the proceedings

    • In its 2018 judgment in Swapnil Tripathi v Supreme Court of India, the Court recommended that proceedings be broadcast live.
    • The SC held that live streaming proceedings is part of the right to access justice under Article 21 of the Constitution.
    •  Justice DY Chandrachud noted that open courts help foster public confidence in the judiciary.
    • Further, publishing court proceedings is an aspect of Article 129, per which the Supreme Court is a court of record.
    • Journalists, young lawyers, civil society activists and academics would all benefit from live streaming, the Court opined.
    • The guidelines proposed 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.

    Recording the proceedings- 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.
    • Democracies aside, in China, court proceedings are live streamed from trial courts up to the Supreme People’s Court of China.

    India stands alone

    • 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 are a number of cases where the Supreme Court’s judgments have changed citizens’ lives — Aadhaar, Section 377, Sabarimala, NRC and the triple talaq judgments are among them.

    Steps to make justice 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.
    • If that technology is available, it could be extended to members of the public, who can then view court proceedings themselves.
    • Due to pandemic for the next few years, Indian courts will have to adopt a combination of virtual and in-person hearings.

    Consider the question “Live-streaming and recordings of the court proceeding helps in reinforcing the public faith in the judiciary. Comment.”

    Conclusion

    Openness and transparency reinforce the public’s faith in the judicial system. Livestreaming and recording of the proceeding will open the door to ensure the same.

  • Over 42,000 undertrials released to unclog prisons: NALSA report

    Legal services institutions have intervened to release 42,529 undertrial prisoners as well as 16,391 convicts on parole to de-congest prisons during the COVID-19 pandemic, a report from NALSA has said.

    Practice question for mains:

    Q. More than a century-old system of prisons in India needs urgent repair. Discuss with context to the increase in the cases of undertrials.

    Decongesting the prison

    • There are 1,339 prisons with approximately 4, 66,084 inmates in India with the rate of occupancy at Indian prisons at 117.6% (a/c to NCRB).
    • The report stated that 243 undertrial prisoners had been granted bail and 9,558 persons in remand had been given legal representation across the country.
    • It said the highest number of undertrial prisoners released was 9,977 in Uttar Pradesh, followed by 5,460 in Rajasthan and 4,547 in Tamil Nadu, 3,698 in Punjab and 3,400 in Maharashtra.
    • Note: Prisons/ Prisoners/persons detained is a State subject under Entry 4 of List II of the Seventh Schedule to the Constitution of India.

    Hardships of the undertrials

    • Right to a speedy trial is an integral part of the principles of fair trial and is fundamental to the international human rights discourse.
    • In Indian jails, most of the prisoners are undertrials, which are confined to the jails until their case comes to a definite conclusion.
    • In most of the cases, they end up spending more time in the jail than the actual term that might have had been awarded to them had the case been decided on a time and, assuming, against them.
    • Plus, the expenses and pain and agony of defending themselves in courts is worse than serving the actual sentence. Undertrials are not guilty till convicted.
    • In 2017, the Law Commission of India had recommended that undertrials who have completed a third of their maximum sentence for offences attracting up to seven years of imprisonment be released on bail.

    About NALSA

    • National Legal Services Authority of India (NALSA) was formed on 9 November 1995 under the authority of the Legal Services Authorities Act 1987.
    • Its purpose is to provide free legal services to eligible candidates and to organize Lok Adalats for the speedy resolution of cases.
    • The CJI is patron-in-chief of NALSA while second seniormost judge of Supreme Court of India is the Executive-Chairman.
    • There is a provision for similar mechanism at state and district level also headed by Chief Justice of High Courts and Chief Judges of District courts respectively.
    • The prime objective of NALSA is speedy disposal of cases and reducing the burden of the judiciary.

    Also read:

    [Burning Issue] Need of Prison Reforms

  • 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.