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Subject: Judiciary

  • Important Judgements In News

  • Death Penalty in India (Annual Statistics Report 2019)

    Trial courts in India delivered 102 death sentences in 2019, over 60% fewer than the 162 death sentences passed in 2018.

    Highlights of the Report

    • In 2019, fewer death sentences overall were delivered.
    • 1 out of 2 sentences for sexual violence-murder; in 3 out of 4 sexual violence-murder death sentences, children were the killer’s victims.
    • The courts were, however, especially unforgiving of murders that involved sexual violence — the proportion of death sentences imposed for murders involving sexual offences was at a four-year high in 2019 at 52.94%.
    • 2019 also saw the highest number of confirmations by High Courts in four years; 17 out of the 26 confirmations (65.38%) were in offences of murder involving sexual violence.
    • The Supreme Court, primarily during the tenure of the previous CJI Gogoi, listed and heard 27 capital cases, the most in a year since 2001.

    Project 39A

    • These are the headline findings in the fourth edition of The Death Penalty in India: Annual Statistics, published by Project 39A at the National Law University (NLU), Delhi.
    • Project 39A is a research and litigation initiative focussed on the criminal justice system, and especially issues of legal aid, torture, death penalty, and mental health in prisons.
    • The report tracked news of death sentences awarded by trial courts published online by news organisations in English and Hindi.
    • It checked these numbers against judgments uploaded to websites of High Court and district courts.

  • Suspension of the Internet: What the Rules say, what the SC underlined

  • Curative Petition

    Curative petitions were filed in the Supreme Court by two convicts in the Nirbhaya case after their execution was scheduled.  The case had shocked the nation and led to the tightening of anti-rape laws. Rape, especially gang rape, is now a capital crime.

    Background

    • The concept of Curative petition was evolved by the Supreme Court of India in the matter of Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002) Judgement.
    • The question was whether an aggrieved person is entitled to any relief against the final judgement/order of the Supreme Court, after dismissal of a review petition.
    • The Supreme Court in the said case held that in order to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgements in exercise of its inherent powers.

    Curative Petition

    • For this purpose, the court has devised what has been termed as a “curative” petition.
    • In the Curative petition, the petitioner is required to aver specifically that the grounds mentioned therein had been taken in the review petition filed earlier and that it was dismissed by circulation.
    • This has to be certified by a senior advocate. The Curative petition is then circulated to the three senior most judges and the judges who delivered the impugned judgement, if available.
    • No time limit is given for filing Curative petition. It is guaranteed under Article 137 of Constitution of India i.e. powers of the Supreme Court to review of its own judgements and orders.

    Review Petition

    • Article 137 of the Constitution provides that subject to provisions of any law and rule made under Article 145 the Supreme Court of India has the power to review any judgement pronounced (or order made) by it.
    • Thus binding decision of the Supreme Court/High Court can be reviewed in Review Petition.
    • The parties aggrieved on any order of the Supreme Court on any apparent error can file a review petition.
    • Taking into consideration the principle of stare decisis courts generally do not unsettle a decision, without a strong case. This provision regarding review is an exemption to the legal principle of stare decisis.
    • Under Supreme Court Rules, 1966 such a petition needs to be filed within 30 days from the date of judgement or order.
    • It is also recommended that the petition should be circulated without oral arguments to the same bench of judges that delivered the judgement (or order) sought to be reviewed.

  • Judicial Reforms

  • Judicial Appointments Conundrum Post-NJAC Verdict

  • Judicial Pendency

    Overcoming the backlog of cases: Judicial reform

    A British citizen, Will Pike was paralysed during the 2008 Taj Hotel blasts in 2008. Suing the hotel group for compensation, he wanted the trial to take place in London rather than in India. Accepting his contention, the London court allowed the matter, specifically stating that the trial in India could take some ‘twenty years’. This is a befitting example of the pendency in Indian judicial system and how it needs to be urgently addressed.

    THE MAGNITUDE OF THE PROBLEM

    The graphic below states the number of cases pending before the Courts in India. Currently, about 3.25 crore cases are pending in the Indian courts and Judges fear that this number might escalate to about 4 crore cases by the end of 2016. This problem gets escalated due to the crunch of Judges at all levels of Judiciary as seen in the graphic below.

     

    Timely justice is an integral part of access of justice and this huge backlog of cases amounts to denial and derailment of justice. This article will look into the proposed reforms for addressing this systemic problem.

    10 REFORMS FOR ADDRESSING JUDICIAL PENDENCY

    The 245th Law Commission Report on “Arrears and Backlogs: Creating Additional Judicial (W)omanpower has recommended the following measures

    1. Calculating Adequate Judge Strength through a more scientific analysis of data – In this context, the Commission has negated a simplistic method like Judge-Population ratio (Number of judges required per million people) in favour of a Rate of Disposal Method.

    In the Rate of Disposal Method, one looks at the current rate at which judges dispose of cases. Then, given that the institutions and disposal rate remain the same, the Courts would need how many more additional judges to keep pace with the new filings in Court so that the newly instituted cases do not add to the existing backlog.

    2. Judges to be appointed on a Priority basis: India currently has 1/5th of the number of judges it needs and thus, the Judges need to be appointed on a priority basis.

    3. Increasing the age of retirement for Subordinate Court Judges to 62 years.

    4. Creation of Special Courts for traffic/police challan cases: They constitute about 37.4% of the existing pendency before the subordinate courts.

    5. Provision for staff and infrastructure

    6. Periodic Needs Assessment by High Courts: Monitoring the rate of institution and disposal of cases and revising the adequate strength of Judges since a High Court is equipped with all the information relating to the subordinate courts in the State. The Malimath Committee had recommended setting up of Vigilance Cells in each district by the High Court to monitor the performance of subordinate judicial officers.

    7. Uniform data collection and data management methods : to bring in greater transparency.

    8. Need for a system-wide reform: The Commission has recommended the following:
    ● Greater encouragement to Alternative Dispute Resolution (ADR) and Lok Adalats <Can you tell us the difference among various types of ADRs, mediation, arbitration and conciliation? Answer in comments>
    ● Setting up non-mandatory time frames and performance benchmarks for resolution of different types of cases based on rational criteria.

    OTHER RECOMMENDATIONS

    9. Use of Technology : Has been recommended by the 230th Law Commission Report and the Malimath Committee Report to
    (a) Club cases filed on similar points of law, which can be decided on the basis of a single judgment.
    (b) Track old cases, which have become infructuous and dispose them off quickly
    (c) Setting up E-Courts and ushering in E-filing. Has received a major boost under the e-Courts Integrated Mission Mode Project.

    10. Creation of All-India Judicial Service: Provided for under Article 312 of the Indian Constitution. The idea has been mooted by various bodies including the First Judicial Pay Commission and accepted by the Supreme Court. Art 2012 proposal regarding creation of this service has not received responses from all States and this proposal continues to be hanging in the air <can you tell us the procedure of creation of new all India service? Answer in comments>.

    CONCLUSION:

    Many steps are currently being taken by the Government and the Courts to address this problem.

    • Monthly National Lok Adalats are carried out for expeditious disposal of claims.
    • In March 2016, the Monthly Lok Adalat disposed of about 1.5 lakh cases and settled claims worth Rs. 100 crores <Where can one appeal against the decision of Lok Adalats. Also tell us about the jurisdiction of Lok Adalats. Answer in comments>
    • In criminal cases, the setting-up of fast-track Courts and “plea bargaining” have further expedited matters <Can you tell us what’s plea bargaining? Answer in comments>
    • The e-courts project, aimed at providing better Court management and a database of all pending cases with easier filing of important documents is underway.
    • Moreover, the National Litigation Policy 2015 is awaiting ministerial approval and seeks to reverse the trend of Government being the biggest litigant <did you know one of the argument for rejecting NJAC was that govt was the biggest litigant, therefore can have no role in appointment of judges>.

    However, in view of the burgeoning backlog and urgency of reducing backlog, the efforts need to be severely expedited.

    P.S. This article is published with inputs from a CD user  Joyousjojo (name changed on request).

    P.P.S. If you want to write explainers for CD, mail us your explainer at hello@civilsadily.com

  • Alternative Dispute Resolution Mechanism – NCA, Lok Adalats, etc.

    Do we really need a National Court of Appeal?

    The Supreme Court recently admitted an SLP (Special Leave Petition) under Article 136 of the Constitution on the setting up of a National Court of Appeal (NCA) with regional benches which will act as final courts of appeal in civil, criminal, revenue and labour matters <Can you tell us, what is SLP in comments>.

    In 1987, in the case of Bihar Legal Support Society v. the Chief Justice of India, the proposal to set up the National Court of Appeal was mooted and welcome by the then Chief Justice P N Bhagwati. The current petition by Chennai based lawyer has once, again brought the issue to the fore.

    The Supreme Court will set up a Constitution Bench to decide on the proposed NCA as primarily, it raises the following question related to the interpretation of the Constitution Answer in comments>.

    As of now, the Supreme Court is the final court of appeal in all cases. With the NCA, the role of the Apex Court would be restricted to hearing only constitutional and public law cases. Would this amount to tinkering with the ‘basic structure’ of the Constitution?

    REASONS WHY NCA COULD BE A WELCOME PROPOSITION?

    Given the never-ending and ever –increasing case-load on the Apex Court, the NCA could be a welcome change on the following grounds:
    (a) Clearing the massive backlog: With the huge pendency of cases in all three levels of Judiciary, the National Court of Appeal with its regional benches may prove to be crucial in clearing the massive backlog of cases. About 98% of the Apex Court’s time is wasted on routine matters like bail pleas, dishonor of cheques, traffic violations, correcting errors in HC judgments.

    With the NCA hearing matters pertaining to civil, criminal, labour and revenue laws, Supreme Court would be able to concentrate on the more important public law concerns.

    (b) Restoring the Apex position of the Apex Court: With the Supreme Court getting an opportunity to hear exclusively on constitutional and public law matters, its position as the final arbiter on constitutional cases and on developing the law will be further strengthened.

    This is in tune with the scenario in England, UK and Wales where the Supreme Court only rules on matters of constitutional importance or sets a new legal precedent.

    (c) Greater access to justice: Access to justice is a fundamental right for all under the Indian Constitution. In the Indian scenario, this is proportionate to the distance from Supreme Court. As per a recent survey, majority of cases come from northern states like 14% from Delhi High Court in comparison to southern states like only 2.5% of cases from Kerala High Court and even fewer from North-eastern States. Setting up NCA with regional benches will help in reducing travelling expenses, with a better cost-benefit ratio.

    WHY SHOULD THE STATUS QUO BE MAINTAINED?

    The Centre has been challenging the move to set up the NCA on the following grounds:

    (a) Dilution of the powers of Apex Court: Currently, many citizens resort to Article 136 of the Constitution in any sort of matter. With the subject matter of disputes being divided amongst NCA and the Supreme Court, Supreme Court’s exclusive power to entertain appeals under Article 136 will be significantly diluted.

    (b) Compromise the unified structure of the Judiciary: Currently, there is one Apex Court with the High Court in states followed by subordinate courts. This integrated structure will suffer a backseat with NCA somewhere in the middle between High Courts and Supreme Court Answer in comments>.

    Moreover, earlier proposals to set up Regional Benches of the Supreme Court with one bench in each region have been rejected by the Supreme Court on the ground that it will affect the unitary character of the Judiciary and that there can be only one Supreme Court.

    For providing greater access to citizens from far-flung areas, it has been proposed that there could be dedicated courtrooms with video conferencing facilities for litigants and lawyers from far-flung areas. This will avoid the need of setting up regional benches and even NCA to a great extent.

    (c) Large-scale Constitutional amendments required: For bringing the NCA into existence, several provisions of the Constitution related to independence of Judiciary, hierarchy of Courts, powers of Supreme Court etc. will have to be amended. Moreover, Article 136 of the Constitution is a part of the basic structure and in view of the decision in Keshvananda Bharati case, limiting the powers of Supreme Court through NCA will be extremely difficult.

    The solution does not lie with creating courts of appeal because it would not bring down litigation. The Supreme Court has to exercise restraint on the manner of interference under its constitutional power. Today people take chances and come to Supreme Court on every issue, including challenging an adjournment order – Attorney General

    Law Commission Recommendation 

    • Law Commission in its 229th report submitted to the government in 2009 recommended setting up of four regional benches at Delhi, Chennai/Hyderabad, Kolkata and Mumbai to deal with appeals arising out of high courts. Earlier 125th report had recommended setting up of NCA Answer in comments>.
    • It said, if necessary Article 130 may be amended to implement its suggestion that Cassation Benches may be set up in four regions, while the Constitution Bench sits in Delhi . < Is Law commission a constitutional or statutory or executive body? Answer in comments>

    But the Supreme Court rejected it in 2010, saying dividing the Supreme Court would affect the country’s unitary character. A Full Court comprising all SC judges reiterated its earlier resolutions passed in 1999, 2001, 2004 and 2006 in this regard.

    CONCLUSION: The burgeoning backlog of cases plaguing all the three levels of judiciary demand more resources and institutional reforms to deal with the problem. However, any proposals to set up institutions like the NCA will require Constitutional amendments and major Legislative will to go through. This at present is not forthcoming. The idea of a National Court of Appeal requires consideration, but in a manner that would not undermine the undoubted authority of the Supreme Court of India. The next hearing for the matter is slated up for April 4.

    P.S. This article is published with inputs from a CD user  Joyousjojo (name changed on request).

    P.P.S. If you want to write explainers for CD, mail us your explainer at hello@civilsadily.com

  • Judicial Appointments Conundrum Pre-NJAC Verdict

     

    Click here to follow the Post-NJAC Verdict Developments – MOP, RTI, Security Clause, RTI, JSA  

    Instead of seeing the NJAC verdict as one that leads to a confrontation between the Parliament and the judiciary, the executive must use this as an opportunity to help the Supreme Court in preparing an institutional design so that appointments are fair and transparent.

     

    Two days after the Supreme Court pronounced its verdict on the 99th Constitution Amendment Act and the National Judicial Appointments Commission (NJAC), declaring them to be ultra vires the Constitution.

    Questions on judicial review

    The reaction of the executive to the NJAC verdict raises the fundamental question,

    “Should the exercise of power of judicial review depend upon the will of the Parliament?”

    Indian Constitution, unlike the Constitutions of USA and Australia, does not have an express provision of separation of powers but its sweep, operation and visibility are not unclear.

    While it is the Parliament’s prerogative to amend the Constitution and make laws, the duty to decide whether the basic elements of the constitutional structure have been transgressed has been placed on the judiciary.

    The power to strike down offending amendments to the Constitution on the touchstone of basic structure can be exercised by the superior judiciary alone, uninfluenced by the will of the Parliament.

    Our Constitution has given the power of judicial review to the unelected superior judiciary to declare ‘unconstitutional’ a legislative act, once it is found to be violative of the basic structure.

     

    What remains of democracy if there is no rule of law?

    The institutional arrangement at the heart of our democracy provides that the will of the people, as reflected in the decisions their elected representatives, is subject to the will of the Constitution, as reflected in the decisions of an independent judiciary.

    Parliamentary supremacy refers to the power of Parliament to make laws within the limits imposed by the Constitution.

    It also denotes the supremacy of Parliament over the executive, primarily through the accountability of the Council of Ministers to Parliament.

    All the three organs of the state derive the power and jurisdiction from our Constitution. Each must operate within the sphere allotted to it.

    Judicial function is also a very important sovereign function of the state and provides the foundation for rule of law.

    Is it good that judges appoints Judges in India?

    It is not wholly correct to say that judges appoint judges in India as consultative participation of the executive is present in the institutionalised procedure prescribed after the Third Judges case.

    But assuming it to be so, ours is perhaps the only country where the government is the biggest litigant before the courts, Isn’t it?

    Why is this so?

    We are one of the very few countries where actions of the political executive in diverse fields, ranging from violation of human rights to wrongful distribution of natural resources and wide range of issues which have huge political ramifications, are brought before the superior judiciary in the public interest litigation (PIL) .

    Can judges who are appointed with the direct say of the government be relied upon to deliver neutral and high-quality decisions in such matters?

    It is no exaggeration to say that appointment processes shape the ability of courts to hold political institutions to account.

    Veto to non-judicial members

    In the Second Judges case, the nine-judge Bench exposited that appointment of judges to High Courts and the Supreme Court forms an integral part of the basic structure of our Constitution.

    Therefore, the executive cannot interfere with the primacy of judiciary in the matter of appointments.

    The NJAC’s flawed composition consisted of the fact that it merged certain components, reflected in the inclusion of Law Minister and two eminent persons and giving any two members the power to veto the decision of the other four.

    This directly affected the independence of judiciary in the judicial appointments process.

    Way Forward to Fair and Transparent system

    Democratic values are strengthened not only by a strong legislature but also by a strong judiciary so that together a mutually respectful and independent partnership on the public’s right to justice is maintained.

    The judges who delivered the judgment in the NJAC case also hold the view that an improvement in the working of the collegium system is the need of the hour.

    Demands of the Constitution can override the wishes of the people expressed through elected governments.

    These are at the very core of a democratic commitment to judicial independence and constitutional supremacy.

    In the words of Alexander Hamilton, one of the framers of American Constitution, “where the will of the legislature declared in the statutes is in opposition to the Constitution, the judges ought to be governed by the latter, rather than former.”

    Published with inputs from Arun