essay on judicial reforms in india upsc

Judicial Reforms

Judicial reform refers to changes or improvements made to the legal system, including the court system, laws, and procedures. These reforms aim to increase the efficiency, transparency, and effectiveness of the justice system, ensuring that it upholds the rule of law and provides fair and timely justice to all citizens.

Judicial reforms may involve changes to laws and regulations governing the legal system, the structure and organization of the court system, the appointment and training of judges, the procedures and rules of evidence used in trials, and the use of technology to improve court operations.

• 1 Need for Reforms
• 2 Aspects of Judicial Reforms
• 3 Judicial Appointment
• 4 Judicial Accountability
• 6 Judicial Pendency
• 7 Way Forward

Need for Reforms

1. Backlog of cases: One of the major issues facing the Indian judiciary is the backlog of cases, with over 30 million pending cases across all courts in the country. This leads to a delay in justice delivery and denies people their right to a timely resolution of their disputes

2. Lack of access to justice: A large section of the population in India, especially the marginalized and vulnerable groups, faces difficulties in accessing justice due to various factors such as distance, cost, and complexity of legal procedures. This leads to a denial of justice and perpetuates social inequality.

3. Quality of judgments: There are concerns about the quality of judgments being delivered by the Indian judiciary, with some judgments being criticized for their lack of reasoning, coherence, and consistency.

4. Infrastructure and technology: The Indian judiciary also faces challenges in terms of infrastructure and technology, with many courts lacking basic facilities and using outdated technology, leading to inefficiencies and delays.

5. Appointment and accountability of judges: There have been concerns about the transparency and accountability of the process of appointment of judges, as well as the performance and conduct of judges themselves.

Aspects of Judicial Reforms

1. Modernization of the legal system: The Indian government has been implementing various technological initiatives to modernize the legal system. This includes digitization of court records, online filing of cases, and e-court services. This has helped to reduce delays and improve access to justice.

2. Increase in the number of judges: There is a severe shortage of judges in India. The government has taken steps to increase the number of judges in the courts by creating new positions and filling vacancies. This is expected to help reduce the backlog of cases pending in the courts.

3. Alternative Dispute Resolution: Alternative Dispute Resolutions were founded in Indian Constitution under Article 14 and Article 21 which mention Equality for law and the Right to Life and Personal Liberty. The government has been promoting alternative dispute resolution mechanisms such as mediation and arbitration as a means of resolving disputes outside of the court system. This helps to reduce the burden on the courts and provides a quicker and less expensive means of dispute resolution

4. Legal aid: The Indian government has been providing legal aid (Article 30A) to those who cannot afford to hire a lawyer. This helps to ensure that everyone has access to justice, regardless of their financial status.

5. Fast-track special courts: The government has established fast-track courts to deal with cases involving crimes against women and children, as well as other cases that require speedy resolution.

6. Reforms in the criminal justice system: The government has been implementing various reforms in the criminal justice system to ensure that the innocent are not wrongly convicted, and the guilty are not let off. This includes measures such as improving forensic capabilities, ensuring timely investigation and prosecution, and protecting the rights of the accused.

Judicial Appointment

In India, there are two main ways of judicial appointment:

• The Constitution alludes to the procedure of appointment of judges to the SC and HCs in Article 124 and Article 217 respectively. The Collegium System is a system of appointment of judges in the higher judiciary, which includes the Supreme Court and the High Courts.
• It is a system where the Chief Justice of India and a group of senior-most judges of the Supreme Court recommend the names of judges for appointment to the President of India.
• This system was introduced by a series of judgments by the Supreme Court in the 1990s and has been in operation since then. (The Three Judges Case: The Three Judges Case refers to a landmark Supreme Court judgment delivered on October 28, 1998, in which the court held that the Chief Justice of India (CJI) has “primacy” in the appointment of judges to the higher judiciary.)
• National Judicial Appointments Commission (NJAC)
• In 2014, the Parliament of India passed the National Judicial Appointments Commission Act under the 99th Amendment of the Indian Constitution, which sought to replace the Collegium System with a Judicial Appointments Commission.
• The JAC was a body that consisted of the Chief Justice of India, two senior-most judges of the Supreme Court, the Union Minister of Law and Justice, and two eminent persons nominated by a committee consisting of the Prime Minister, the Chief Justice of India, and the Leader of Opposition in the Lok Sabha.
• However, the Supreme Court struck down the Act in 2015, ruling that it was unconstitutional.

Criticism of Collegium System

1. Lack of transparency: The Collegium system operates largely in secrecy, with no public disclosure of the criteria used for the appointment or transfer of judges. This lack of transparency can lead to allegations of favouritism and nepotism. It also is a violation of Article 74 of the Indian Constitution which requires proper scrutiny and accountability.

2. Lack of accountability: Since the appointment of judges is entirely in the hands of the Collegium, there is no external oversight or accountability. This can lead to a situation where judges are appointed based on personal biases or political affiliations.

3. Dilution of executive power:

• The Collegium system has been criticized for diluting the power of the executive branch of the government in the appointment of judges. This can lead to a situation where the judiciary becomes dominant over the other branches of the government.
• The Second Judges’ Case and the Third Judges’ Case are landmark judgments by the Supreme Court of India that strengthened the judiciary’s independence and autonomy in the appointment of judges.
• The Collegium system, established in the Third Judges’ Case, gave senior judges greater control over the appointment process.
• While these decisions were seen as important for the judiciary’s independence, they also raised concerns about the concentration of power in the judiciary and the lack of transparency in the appointment process. Overall, the cases had a significant impact on the separation of powers doctrine in India.

4. Limited diversity: The Collegium system has been criticized for not ensuring adequate representation of marginalized communities, including women, Dalits, and minorities, in the higher judiciary.

5. Uncle Judges Syndrome: This means that senior judges make recommendations for the appointment of other judges. It refers to the alleged tendency of judges to favour their own protégés or relatives for appointments. Critics argue that this undermines the principle of merit-based appointments and creates a culture of nepotism and favouritism.

Judicial Accountability

Judicial accountability refers to the concept that judges should be held accountable for their decisions and actions in a fair, transparent, and impartial manner.

In India, the Constitution provides for the independence of the judiciary and the principle of judicial accountability. However, in recent years, there have been concerns about the lack of accountability of judges, particularly in higher judiciary.

Areas of Conflict

1. Separation of powers: The Constitution provides for a clear separation of powers between the judiciary and the other branches of government. While the judiciary should be accountable, it should not be subjected to political interference or influence. However, conflicts may arise if the executive or legislative branches try to influence judicial appointments or disciplinary proceedings.

2. Judicial independence: The independence of the judiciary is crucial for maintaining the integrity and impartiality of the judicial process. However, complete independence can sometimes lead to a lack of accountability. Therefore, striking a balance between judicial independence and accountability is crucial.

3. Transparency: Transparency is essential for ensuring accountability. However, the judiciary operates in a highly sensitive and complex environment, and complete transparency can sometimes compromise the confidentiality and security of the judicial process. Therefore, balancing the need for transparency with the need for confidentiality is a delicate task.

4. Right to privacy: Judges, like other citizens, have a right to privacy, and their personal lives should not be subjected to undue scrutiny. However, in cases of judicial misconduct, there may be a need to investigate their personal lives to establish the facts. Balancing the right to privacy with the need to investigate can be a challenging task.

5. Judicial hierarchy: The judiciary operates in a hierarchical structure, with senior judges having more power and authority than junior judges. This can sometimes lead to a lack of accountability, with senior judges having the power to influence appointments and disciplinary proceedings. Ensuring accountability in such a structure requires a robust system of checks and balances.

1. Judicial Standards and Accountability Bill: The Judicial Standards and Accountability Bill, 2010 was introduced in the Lok Sabha to regulate the conduct of judges and to establish a mechanism for investigating complaints of misconduct against them. The bill provides for the establishment of a national judicial oversight committee to investigate complaints of misconduct and to recommend action against erring judges.

2. Disciplinary proceedings: The Supreme Court has laid down the procedure for initiating disciplinary proceedings against judges in the case of S.P. Gupta vs. Union of India. The procedure provides for the appointment of a committee to investigate complaints of misconduct and to recommend action against the erring judge. The Supreme Court can also initiate suo moto proceedings against a judge for misconduct.

3. Public scrutiny: Public scrutiny of judicial decisions and actions can act as a check on the judiciary. The media and civil society can play a crucial role in holding judges accountable by reporting on cases of judicial misconduct and highlighting instances of corruption or bias in the judiciary. The live streaming of Supreme Court proceedings is a means of public scrutiny and transparency, allowing citizens to observe the court’s proceedings and decisions in real-time. This can enhance public trust in the judiciary and promote accountability.

4. Judicial education: Judges need to be trained in ethics and the principles of judicial conduct. Regular training and education programs can ensure that judges are aware of their responsibilities and are equipped to discharge them in a fair and impartial manner.

Judicial Pendency

Judicial pendency refers to the backlog of cases that are pending in courts. In India, judicial pendency is a significant issue that affects the efficiency and effectiveness of the judicial system. There are several reasons for judicial pendency, including:

1. Lack of judicial infrastructure: One of the main reasons for judicial pendency is the lack of judicial infrastructure, including courts, judges, and support staff. There is a significant shortage of judges and courtrooms, which results in delays in the disposal of cases.

2. Delay in the appointment of judges: There is often a delay in the appointment of judges, which further exacerbates the problem of judicial pendency. The delay in appointment can be attributed to various factors, including bureaucratic red tape, lack of political will, and disputes between the executive and judiciary over the appointment process.

3. Procedural delays: Procedural delays, such as adjournments, continuances, and transfer of cases, can also contribute to judicial pendency. These delays are often caused by the absence of witnesses, lawyers, or judges, and can result in cases dragging on for years.

4. Lack of technology: The lack of technology in the Indian judiciary, such as digitization of records and online filing of cases, can also contribute to judicial pendency. This can result in delays in accessing records and in the processing of cases.

5. Government is the biggest litigant: The government is involved in a large number of legal disputes as a party, either as a plaintiff or a defendant. Thus, the government should invest in modernizing and upgrading the judicial system to reduce delays and backlogs.

Way Forward

1. Increase in the number of judges: The shortage of judges is a significant cause of judicial pendency. Therefore, increasing the number of judges in the courts can help reduce the backlog of cases. The government should fill up the vacancies in the courts and increase the number of judges in proportion to the number of pending cases.

2. Use of technology: The use of technology can help streamline court procedures, reduce paperwork, and increase the efficiency of the judicial system. Digitization of court records, online filing of cases, and virtual hearings can help reduce delays and speed up the disposal of cases.

3. Alternative dispute resolution mechanisms: Alternative dispute resolution mechanisms, such as mediation and arbitration, can help reduce the burden on courts and speed up the disposal of cases. Encouraging parties to settle disputes outside of court can help reduce the backlog of cases.

4. Case management: Effective case management can help reduce delays in the disposal of cases. The courts should develop a robust case management system that tracks the progress of cases, identifies cases that require priority attention, and sets realistic deadlines for the disposal of cases.

5. Increase in the number of courts: The number of courts should be increased to ensure that the judicial system can handle the volume of cases. The establishment of additional courts can help reduce the backlog of cases and increase the efficiency of the judicial system.

6. Time-bound disposal of cases: The time-bound disposal of cases can help reduce the backlog of cases. The government should set realistic timelines for the disposal of cases and ensure that the courts adhere to these timelines.

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Civilsdaily

No. 1 UPSC IAS Platform for preparation

Judicial Reforms

• Backgrounder

Doctrine of Harmonious Construction

From UPSC perspective, the following things are important :

Prelims level: Principles for Condonation of Delay, Doctrine of Harmonious Construction

Mains level: NA

Why in the news?

The Supreme Court refused to condone a delay of 5659 days in an appeal filing, setting forth eight guiding principles by interpreting Sections 3 and 5 of the Limitation Act, 1963, in ‘ Harmonious Construction’ .

What is the Doctrine of Harmonious Construction?

• The doctrine of harmonious construction means figuring out how to understand different parts of a law that seem to disagree with each other.
• This doctrine helps maintain consistency and coherence in legal interpretation, ensuring that legislative intent is upheld while resolving apparent conflicts within statutes.
• Origin: The Origin of the Doctrine of Harmonious Construction dates back to the landmark Judgement of Sri Shankari Prasad Singh Deo v. Union of India (1951 ), when there existed conflict between Fundamental Rights and DPDP.
• In the present context, the SC harmoniously construed Sections 3 and 5 of the Limitation Act , ensuring that the strict interpretation of limitation periods under Section 3 was balanced with the liberal approach to condonation of delay under Section 5.

Principles for Condonation of Delay

Justices Bela M Trivedi and Pankaj Mithal presided over the bench that delineated these principles.

• Public Policy Basis: Limitation law aims to conclude litigation by forfeiting the remedy rather than the right itself.
• Temporal Limitation: Rights or remedies unexercised for a prolonged duration should cease to exist.
• Strict vs. Liberal Construction: Section 3 (limitation period) requires strict interpretation, while Section 5 (condonation of delay) demands a liberal approach.
• Substantial Justice: While promoting substantial justice, the core of limitation law (Section 3) must not be undermined.
• Discretionary Power: Courts may condone delay if sufficient cause is explained but may refrain due to factors like inordinate delay and negligence.
• Individual Justification: Relief granted to some does not mandate the same for others if delay justification is unsatisfactory.
• Merit Irrelevance: Merits of the case need not influence delay condonation decisions.
• Condonation Parameters: Applications for delay condonation must adhere to statutory provisions; overlooking conditions amounts to disregarding the law.

Why were these guidelines laid out?

• These principles emerged from a case where legal heirs sought to challenge a High Court decision dismissing their plea to condone delay in filing an appeal against a Trial Court’s reference dismissal.
• The litigant’s heirs argued insufficient knowledge about the dismissal due to her stay in the matrimonial house, leading to a delayed filing.
• However, the Supreme Court rejected this argument, citing negligence in pursuing the reference and appeal, lack of procedural diligence, and acceptance of the reference court’s decision by most claimants.

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India’s Bail System: Challenges and Prospects

Prelims level: Bail Provisions in India

Mains level: Problem of Undertrials, Bail and linking it to Prison Reform

In the news

• India’s bail system faces significant challenges, resulting in a large number of undertrials remaining in prison despite being granted bail.
• The complexities of complying with bail conditions, especially for marginalized individuals, exacerbate the situation.

Bail Provisions in India

Understanding the crisis in bail system.

• Overrepresentation of Undertrials : Over 75% of India’s prison population comprises undertrials, reflecting systemic inefficiencies in the bail system.
• Judicial Reluctance : Chief Justice of India D.Y. Chandrachud highlighted a growing reluctance among trial judges to grant bail, leading to a situation where incarceration becomes the norm.
• Bail Backlog : The backlog of bail applications further exacerbates the problem, prolonging the detention of undertrials awaiting trial.

Judicial Acknowledgment and Guidelines

• Supreme Court’s Observations : The Supreme Court acknowledged the ineffectiveness of India’s bail system in the case of Satender Kumar Antil vs CBI, emphasizing the principle of ‘bail not jail’.
• Need for Legislative Action : The Court urged the enactment of separate legislation and laid down comprehensive guidelines to streamline bail procedures.
• Delayed Disposal of Applications : Despite court directives, delays in the disposal of bail applications contribute to prolonged detention of undertrials.

Empirical Assessment and Policy Reforms

• Lack of Empirical Evidence : The absence of empirical data hampers efforts to understand the bail system’s challenges comprehensively.
• Socio-economic Barriers : Bail laws disproportionately burden marginalized individuals, necessitating reforms based on a realistic assessment of the problem.
• No Data-driven Reform : Policymakers should prioritize empirical research to inform evidence-based policy reforms aimed at addressing systemic inequalities.

Safeguards and Adjudication Practices

• Arrest Safeguards : Existing safeguards against arbitrary arrest often exclude vulnerable populations, contributing to the high proportion of undertrials.
• Discretionary Adjudication : Courts exercise discretion in granting bail, but guidelines lack clarity on how socioeconomic factors influence bail decisions.
• Recording Reasons for Bail Denial : Courts should be mandated to record detailed reasons for denying bail, promoting transparency and accountability in the adjudication process.

Bail Compliance Challenges

• Financial Hurdles : Many undertrials struggle to comply with bail conditions due to financial constraints and lack of local sureties.
• Structural Disadvantages : Factors like lack of residence proof and family support further hinder undertrials’ ability to comply with bail conditions.
• Support Mechanisms : Establishing support mechanisms to assist undertrials in navigating the bail process and fulfilling conditions can alleviate compliance challenges.

Why bail needs reform?

• Indiscriminate arrests: Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offense, being charged with offenses punishable for seven years or less.
• Disadvantageous for some sections: They are not only poor and illiterate but also would include women. Thus, there is a culture of offense being inherited by many of them.
• Colonial legacy: Theoretically, the court also linked the idea of indiscriminate arrests to magistrates ignoring the rule of “bail, not jail” to a colonial mindset.

Way forward

• No Flawed Assumptions : The current bail system operates on flawed assumptions about the accused’s socio-economic status, rendering ‘bail not jail’ meaningless for many.
• Call for Bail Reform : Meaningful bail reform necessitates a reevaluation of these assumptions and a data-driven approach to diagnose systemic issues.
• Holistic Approach : Reform efforts should adopt a holistic approach, addressing both procedural inadequacies and socio-economic barriers to ensure equitable access to bail.
• India’s bail system stands at a critical juncture, with an urgent need for reform to address systemic inefficiencies and ensure justice for all.
• Empirical research, legislative action, and judicial scrutiny are essential components of a comprehensive reform agenda.

Try this PYQ from CSE Prelims 2021:

With reference to India, consider the following statements:

• Judicial custody means and accused is in the custody of the concerned magistrate and such accused is locked up in a police station, not in jail.
• During judicial custody, the police officer in charge of the case is not allowed to interrogate the suspect without the approval of the court.

Which of the statements given above is/are correct?

(c) Both 1 and 2

(d) Neither 1 nor 2

Post your responses here. 0 Please leave a feedback on this x

Pratap Bhanu Mehta writes: On recent Supreme Court verdicts, hold the celebrations

Central Idea:

The recent decisions by the Supreme Court, such as declaring the electoral bonds scheme unconstitutional and overturning election irregularities, are seen as positive steps towards upholding electoral democracy. However, they also underscore the broader degradation of institutions and the normalization of institutional malfeasance in Indian politics. While these decisions are commendable individually, they may not yet signal a systemic regeneration, as challenges to authoritarianism and communalism remain pervasive. The lack of sustained public outrage and political accountability further complicates the situation, highlighting the need for a deeper examination of the state of democracy in India.

Key Highlights:

• Recent Supreme Court decisions, including declaring electoral bonds unconstitutional and addressing election irregularities, are viewed as positive for electoral democracy.
• However, these decisions also reflect the broader erosion of institutional integrity and the normalization of institutional malfeasance in Indian politics.
• The Court’s role in legitimizing the executive’s actions is scrutinized, with emphasis on the need for deeper systemic changes rather than isolated judgments.
• Despite occasional correct decisions, the prevailing political culture lacks sustained outrage and accountability towards democratic principles.
• The fragmented opposition and societal complacency contribute to the normalization of institutional wrongdoing and authoritarian tendencies.

Key Challenges:

• Balancing the need for institutional legitimacy with holding the executive accountable poses a challenge for the judiciary.
• The normalization of institutional malfeasance and lack of sustained public outrage undermine efforts to challenge authoritarianism and communalism.
• The fragmented opposition and societal complacency hinder effective resistance against democratic erosion.
• The judiciary’s occasional correct decisions may not be sufficient to counteract broader trends of institutional degradation and executive overreach.

Main Terms or key words to enrich your answer:

• Supreme Court
• Electoral Bonds
• Institutional Integrity
• Authoritarianism
• Communalism
• Judicial Legitimacy
• Public Outrage
• Political Accountability

Important Phrases for answer writing:

• “Normalization of institutional perfidy”
• “Façade of constitutionalism”
• “Aestheticisation of politics”
• “Institutional propriety”
• “Consolidation of authoritarianism and communalism”
• “Episodic legitimisation”
• “Recent decisions may not yet signal a systemic regeneration.”
• “The lack of sustained outrage or mobilization on issues of electoral integrity is concerning.”
• “Each breach of propriety adds to the government’s perverse power.”
• “One swallow does not a summer make.”

Useful Statements:

• “While recent Supreme Court decisions are welcome, they must be viewed in the context of broader institutional degradation and societal complacency.”
• “The normalization of institutional wrongdoing poses a significant challenge to democratic accountability.”
• “A deeper examination of the prevailing political culture is necessary to understand the lack of sustained outrage and accountability.”

Examples and References:

• The Supreme Court’s decision declaring the electoral bonds scheme unconstitutional.
• The Court’s intervention in the mayoral race in Chandigarh.
• Instances of institutional malfeasance and executive overreach in recent years.
• Fragmentation and lack of effective opposition in Indian politics.
• Public reactions to recent judicial decisions and their impact on democratic norms.

Facts and Data:

• The Supreme Court’s role in recent landmark decisions, such as electoral bonds and election irregularities.
• Instances of executive overreach and institutional degradation in Indian politics.
• Public sentiment and reactions towards judicial decisions and democratic principles.

Critical Analysis:

• The article provides a critical assessment of recent judicial decisions in the context of broader institutional degradation and political culture in India.
• It highlights the challenges faced by the judiciary in balancing institutional legitimacy with holding the executive accountable.
• The normalization of institutional malfeasance and lack of sustained public outrage are identified as significant impediments to democratic accountability.
• The fragmented opposition and societal complacency further complicate efforts to challenge authoritarianism and communalism.

Way Forward:

• There is a need for deeper systemic changes to address institutional degradation and executive overreach.
• Sustained public outrage and political accountability are crucial for upholding democratic principles.
• Strengthening opposition and civil society mobilization can help counteract authoritarian tendencies.
• The judiciary must continue to uphold democratic norms and challenge unconstitutional actions by the executive.
• Promoting critical thinking and civic engagement can foster a culture of accountability and transparency in Indian democracy.

Answer the following question in comment box 

What role does the judiciary play in balancing institutional legitimacy with holding the executive accountable, and what are the challenges associated with this balance?

Should India have regional benches of the Supreme Court?

Prelims level: Special Leave Petitions (SLPs)

Mains level: The establishment of regional benches of the Supreme Court in India

Why in the News?

Recently, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice informed the Lok Sabha that the Law Ministry has accepted its recommendation to establish regional benches of the Supreme Court across India.

  View of Supreme Court on setting of regional benches

• Recently,  CJI D.Y. Chandrachud  announced his intent to create Constitution Benches of varied strengths as a permanent feature of the Court.
• The Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice had earlier noted that the demand for having regional benches of the Supreme Court is about ‘access to justice,’ which is a Fundamental Right under the Constitution. However, the Supreme Court previously has been continuously rejecting   the idea.
• During 2019, former  Chief Justice Ranjan Gogoi  supported the view, but minimal progress was made during his tenure. In contrast, during the 74-day tenure of former Chief Justice U.U. Lalit , 25 Constitution Bench matters were listed before five-judge benches.

Recommendations by the Law Commissions on the setting of regional benches:

• 10 th Law Commission (95 th Report), 1984: The Supreme Court of India should consist of two Divisions, namely (a) Constitutional Division, and (b) Legal Division”, and that “only matters of Constitutional law may be assigned to the proposed Constitutional Division”.
• 11 th Law Commission (125 th Report), 1988: Recommended for splitting the (Supreme) Court into two halves deserves to be implemented.
• 18 th Law Commission   (229 th Report), 2009:  Recommended that “a Constitution Bench be set up at Delhi to deal with constitutional and other allied issues”, and “four Cassation Benches be set up in the Northern region/zone at Delhi, the Southern region/zone at Chennai/Hyderabad, the Eastern region/zone at Kolkata and the Western region/zone at Mumbai to deal with all appellate work arising out of the orders/judgments of the High Courts of the particular region”.

Significance of Regional Benches in India:

• High Pendency of Cases : In the Supreme Court, a little more than 80,000 cases are currently pending adjudication out of which 60,000 cases are civil. This cannot be alleviated only through usual methods and is highly dependent upon the efforts and efficiency of the Chief Justice.
• However, such a disposal rate is negligible when compared to the total pendency of cases.
• For example, there was lots of opposition when the jurisdiction of the Tis Hazari Court was divided into different district courts. However, 10-15 years down the line, a vibrant District Bar in Saket, Rohini, and Karkardooma can be seen.
• Access to Justice for All:  People are reluctant to accept arbitrary actions of the state and its agencies and are increasingly approaching courts of law. The outcome of such cases demands further adjudication by the Supreme Court. Also, it becomes difficult for people living in States far away from Delhi to agitate their cause.
• Importance of Litigant Presence : It is easy to say that the presence of a litigant is not required in appellate forums but the reality is that every litigant wishes to visit his lawyer and witness court proceedings involving his case.
• Boosting Judicial System with More Judges:  The establishment of regional benches will increase the number of judges as well as lawyers resulting in a much-needed boost to our judicial system.

Challenges associated with regional benches:

• Dilution of sacrosanct nature: Critics argue that the idea of setting up regional benches will lead to Balkanization of the Supreme Court and lessen the binding force of the decisions of the Supreme Court.
• Territorial Interference : India being diverse country, have emerging diverse views in judiciary too. Hence, the newly formed regional benches can create conflict of interest by interfering in the territorial jurisdiction of the HCs which may adversely affect our justice system.
• Rectifying the imbalances: Major of the cases filed in Apex court, arise from nearby High Courts in north India, this imbalance cannot be rectified by using this solution.
• Frivolous Petitions : If Justice is that easily accessible considering geographical aspect, there is a possibility of numerous frivolous petitions being filed.
• Explore the use of technology, such as video conferencing and virtual courtrooms, to enhance access to justice and facilitate remote adjudication of cases, especially in remote or underserved areas.
• Need a balanced approach: The debate on regional benches for the Supreme Court involves considerations of accessibility, case management, and judicial efficiency. While proponents see it as vital for access, opponents emphasize potential drawbacks. Striking a balance necessitates thorough evaluation and careful implementation of reforms.

Notable Jurist Fali S Nariman Passes Away at 95

Prelims level: Fali S Nariman and his notable cases

Introduction

• Fali S. Nariman, an eminent jurist and Senior Advocate, left an indelible mark on India’s legal landscape over his illustrious 75-year career.
• Representing clients in a multitude of landmark cases, his contributions reshaped constitutional jurisprudence and safeguarded democratic principles.

Legacy in Indian Jurisprudence

[1] upholding judicial independence: the second judges case.

• Legal Battle : Advocating before the Supreme Court Advocates-on-Record Association v. Union of India (1981), Nariman challenged the interpretation of “consultation” in judicial appointments, emphasizing its binding nature to preserve judicial autonomy.
• Judicial Triumph : Nariman’s advocacy led to the establishment of the Supreme Court Collegium, ensuring transparent and independent judicial appointments, a landmark decision that endures to this day.

[2] Clarifying Judicial Procedures: The Third Judges Case

• Presidential Reference : Nariman contributed to the Supreme Court’s deliberations in Special Reference 1 (1998), facilitating a structured consultative process for judicial appointments, reinforcing the judiciary’s collective responsibility.
• Expanded Collegium : His efforts expanded the scope of judicial consultation, enhancing transparency and accountability in the appointment process.

[3] Protecting Judicial Independence: National Judicial Appointments Commission Case

• Challenging Executive Interference : In Supreme Court Advocates-on-Record Association v. Union of India, Nariman vehemently opposed the National Judicial Appointment Commission Act, 2014, safeguarding judicial autonomy against executive overreach.
• Triumph for Collegium System : His advocacy contributed to the reinstatement of the collegium system, preserving the judiciary’s prerogative in judicial appointments.

[4] Championing Fundamental Rights: Golak Nath v. State of Punjab Case

• Constitutional Challenge : Nariman’s intervention in Golak Nath v. State of Punjab (1967) underscored Parliament’s limitations in amending fundamental rights, reinforcing the sanctity of constitutional provisions.
• Protecting Liberties : His advocacy upheld the inviolability of fundamental rights, ensuring the primacy of constitutional principles.

[5] Bhopal Gas Tragedy: Union Carbide Corporation v. Union of India (1989)

• Navigating Tragedy : Nariman’s representation of Union Carbide in the aftermath of the Bhopal gas tragedy facilitated a landmark settlement, ensuring timely compensation for victims and environmental remediation.

[6] Safeguarding Minority Rights: TMA Pai Foundation v. State of Karnataka

• Advocating Pluralism : Nariman’s involvement in TMA Pai Foundation v. State of Karnataka underscored the constitutional protection of minority rights in education, fostering inclusivity and diversity in the educational landscape.

[7] Upholding Constitutional Norms: Nabam Rebia v. Deputy Speaker

• Restoring Constitutional Order : Nariman’s intervention in Nabam Rebia v. Deputy Speaker (2016) reaffirmed the constitutional mandate for gubernatorial action, preserving democratic governance and institutional integrity.

[8] Ensuring Legal Fairness: J. Jayalalithaa v. State of Tamil Nadu

• Securing Justice : Nariman’s successful bail plea for Jayalalithaa exemplified his commitment to due process, ensuring equitable legal treatment for all individuals before the law.

[9] Resolving Inter-State Disputes: State of Karnataka v. State of Tamil Nadu

• Navigating Complexities : Nariman’s representation in the Cauvery water dispute showcased his dedication to resolving interstate conflicts through legal avenues, contributing to the equitable allocation of vital natural resources.
• Fali S. Nariman’s illustrious legal career stands as a testament to his unwavering commitment to justice, constitutionalism, and the rule of law.
• His profound influence on Indian jurisprudence reverberates through landmark decisions and enduring legal principles, leaving an indelible mark on the nation’s legal landscape.

Try this PYQ from CSP 2012:

What is the provision to safeguard the autonomy of the Supreme Court of India?

• While appointing the Supreme Court Judges, the President of India has to consult the Chief Justice of India.
• The Supreme Court Judges can be removed by the Chief Justice of India only.
• The salaries of the Judges are charged on the Consolidated Fund of India to which the legislative does not have to vote.
• All appointments of officers and staffs of the Supreme Court of India are made by the Government only after consulting the Chief Justice of India.
• 1 and 3 only
• 3 and 4 only
• 1, 2, 3 and 4

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Judicial clarity on free speech

Prelims level: IT Rules 2021

Mains level: importance of upholding free speech in the digital age

Justice Gautam Patel’s landmark decision on the Kunal Kamra’s case underscores the critical importance of upholding the constitutional right to free speech, particularly in the realm of social media. The decision highlights the inherent dangers of arbitrary censorship and the need for clear, reasonable restrictions in line with constitutional principles.

• Upholding Free Speech: The decision reaffirms the sacrosanct nature of the constitutional guarantee of free speech, emphasizing its protection against undue state encroachment.
• Rejection of Arbitrary Censorship: Justice Patel condemns the amended Rule 3(1)(b)(v) of the IT Rules 2021 as vague and overbroad, posing a threat to critical discourse and debate.
• Constitutional Principles: The judgment invokes Article 19 and Article 14 of the Constitution, arguing that the amended rule infringes upon fundamental rights and lacks reasonable standards.
• Importance of Judicial Review: The decision underscores the role of judicial review in curbing potential abuses of power by government entities, particularly in safeguarding democratic principles.
• Recognition of Digital Regulation: While acknowledging the need to combat misinformation, the judgment insists on the importance of balanced regulation that respects free speech rights.
• Interpretation of Constitutional Rights: Balancing free speech with the need for regulation presents a challenge in defining clear and reasonable restrictions.
• Enforcement and Compliance: Ensuring compliance with constitutional principles and judicial decisions poses challenges in a dynamic digital landscape.
• Government Response: The government’s response to judicial decisions and its commitment to upholding constitutional principles may vary, influencing the effectiveness of legal interventions.

Main Terms or key terms for answer writing:

• Free Speech
• Constitutional Guarantee
• Social Media Regulation
• Arbitrary Censorship
• Judicial Review
• Fundamental Rights
• Digital Platforms
• Misinformation
• Democratic Principles

Important Phrases for good marks in mains:

• “The sacrosanctity of the inviolate constitutional guarantee of free speech”
• “Vague and overbroad”
• “The imperative of combatting fakery and misinformation”
• “A bulwark against the excesses of majoritarian assemblies”
• “Agents of injustice”
• “Inter-institutional comity”

Quotes that you can use in essay for value addition:

• “The cacophony of dissent and disagreement is the symphony of a democracy at work.”
• “Falsehood flies, and truth comes limping after it.”
• “The will of the State is subject to scrutiny by those affected by the exercise of State power.”
• “Democratic power is a trust held upon conditions.”

Useful Statements for value addition:

• “The decision reaffirms the constitutional conscience and rejects the potential for wanton abuse of power.”
• “Fear-instilled stillness ill serves the case of a vibrant democracy.”
• “A law that permits its enforcers to become agents of injustice cannot be countenanced in a constitutional democracy.”
• Shreya Singhal case (2015)
• Zeran case (1997)
• Harold Laski’s “A Grammar of Politics” (1937)
• Jonathan Swift’s statement on falsehood and truth

Facts and Data for value addition and credibility to your arguments:

• Mention of the amended Rule 3(1)(b)(v) of the IT Rules 2021.
• Reference to Justice Patel’s decision on the Kunal Kamra’s case, dated 31st January.

Justice Patel’s decision serves as a significant safeguard against potential abuses of power and underscores the importance of upholding free speech in the digital age. By rejecting arbitrary censorship and emphasizing the need for clear, reasonable restrictions, the judgment sets a crucial precedent for protecting democratic principles.

• Ensure compliance with constitutional principles in regulating digital platforms.
• Encourage balanced regulation that combats misinformation while respecting free speech rights.
• Foster inter-institutional comity by heeding judicial decisions and promoting democratic accountability.

By adhering to these principles, policymakers can navigate the complexities of digital regulation while upholding fundamental rights and democratic values.

Improve your answer writing with us and crack the mains 

Try to attempt following question and write the answer in comment box below

• How does Justice Patel’s decision in the Kunal Kamra’s case uphold the constitutional right to free speech?
• What are the key challenges in balancing free speech with the need for regulation, as highlighted in the judgment?
• How does the judgment emphasize the importance of judicial review in safeguarding democratic principles in the digital age?

An intervention that will help strengthen legal education

Prelims level: Bar Council of India

Mains level: systemic challenges plaguing legal education in India and the urgent need for reform

The article discusses the recent recommendations made by the Parliamentary Standing Committee on Personnel, Public Grievances, Law, and Justice to enhance the quality of legal education in India. It highlights the need for a new regulatory body, the National Council for Legal Education and Research (NCLER), to oversee post-graduation level education, prioritize research in law schools, and address the challenges hindering the excellence of legal education in the country.

• Recommendations for Regulatory Reform: The committee proposes limiting the Bar Council of India’s (BCI) role in legal education regulation and establishing the NCLER to set qualitative benchmarks for post-graduation level education.
• Emphasis on Research: Recognizing the deficiency in research focus among Indian law schools, the committee stresses the importance of promoting research to improve teaching outcomes and cultivate critical thinking skills among students.
• Global Perspective: Acknowledging the impact of globalization on legal education, the committee suggests incorporating global curriculum, international exchange programs, and more international law courses to prepare students for a globalizing world.
• Call for Strong Leadership and Academic Freedom: The article emphasizes the necessity for passionate and visionary academic leaders in law faculties and universities to foster a supportive environment for faculty and promote academic freedom.
• Lack of Leadership: The absence of effective leadership in law faculties and universities impedes efforts to achieve excellence in legal education.
• Insufficient Research Focus: Many law schools in India prioritize teaching over research, resulting in a scarcity of indigenous legal knowledge and reliance on Western legal literature.
• Resistance to Change: Implementing reforms in legal education requires a shift in mindset among stakeholders and a commitment to prioritize higher education.

Main Terms or key quotes:

• National Council for Legal Education and Research (NCLER)
• Bar Council of India (BCI)
• Globalization
• Academic Freedom

Important Phrases for mains answer enrichment:

• “Sea of institutionalized mediocrity”
• “Consumer of legal knowledge generated in the West”
• “Augmenting the research ecosystem”
• “Complete academic freedom and autonomy”

Quotes for quality essay:

• Albert Einstein: “The value of a college education is not the learning of many facts but the training of the mind to think.”
• Jawaharlal Nehru: “A university stands for humanism, for tolerance, for reason, for the adventure of ideas and for the search of truth.”
• “Legal education in India needs regulatory reform to address its current shortcomings and enhance its quality.”
• “Promoting research is crucial to improving teaching outcomes and fostering critical thinking skills among students.”
• “Effective leadership and academic freedom are essential for driving meaningful change in legal education.”
• National Law School of India University and Jindal Global Law School are among the few Indian law schools ranked in the top 250 globally.
• Out of over 800 law journals indexed in Scopus, only a handful are from India, indicating the low level of research output from Indian law schools.
• India has over 1,700 law schools, but only a few have achieved excellence in legal education.
• Legal education in India has historically lagged behind fields like medicine and engineering in terms of priority and investment.

The article aptly highlights the systemic challenges plaguing legal education in India and the urgent need for reform. It identifies regulatory deficiencies, research gaps, and leadership issues as key barriers to achieving excellence. However, it fails to delve deeply into the specific strategies or mechanisms required to address these challenges.

• Implement the recommendations of the Parliamentary Standing Committee to establish the NCLER and redefine the role of the BCI.
• Invest in promoting research culture in law schools through funding, infrastructure, and academic support.
• Encourage academic leadership that fosters a culture of innovation, excellence, and academic freedom.
• Foster collaboration between law schools, industry, and international institutions to enhance curriculum relevance and global exposure for students.

In conclusion, while the recommendations put forth by the committee represent a step in the right direction, concerted efforts from all stakeholders are necessary to bring about meaningful change and elevate the quality of legal education in India.

Places of worship and an unsettling judicial silence

Prelims level: Places of Worship Act, 1991

Mains level: need for the Supreme Court to intervene to protect the integrity of the Places of Worship Act and prevent its politicization

The article discusses the aftermath of the Supreme Court verdict on the Babri Masjid case in November 2019 and its implications on the Places of Worship (Special Provisions) Act, 1991. It highlights the challenges posed by the resurgence of petitions targeting mosques like the Gyanvapi Masjid in Varanasi and the Shahi Idgah in Mathura, and the subsequent debates on the Act’s validity and applicability. It emphasizes the need for the Supreme Court to intervene to protect the integrity of the Act and prevent its politicization.

• Supreme Court’s verdict on the Babri Masjid case in November 2019 praised the Places of Worship Act, 1991 for preserving the religious character of places of worship as of August 15, 1947.
• Hindutva forces initiated petitions targeting mosques in Mathura, Varanasi, and other places, challenging their status and calling for their liberation.
• Despite lack of concrete evidence, petitions against mosques were admitted in various district courts, signaling a deliberate challenge to the Places of Worship Act.
• The Supreme Court’s silence on the increasing challenges to the Act raised concerns about its integrity and enforcement.
• The court’s decision to hear petitions against the Act itself and the Union government’s delays in specifying its stance raised doubts about the Act’s future.
• Increasing petitions challenging the status of mosques threaten communal harmony and challenge the secular principles enshrined in the Indian Constitution.
• The politicization of the issue, with petitions being used as a tool to further certain political narratives, adds complexity to the debate.
• Delays in the Supreme Court’s intervention and the government’s ambiguity on the Act’s status create uncertainty and erode public trust in the legal system.
• Historical grievances and communal tensions fuel the resurgence of demands for the reclamation of religious sites.

Main Terms or key words:

• Places of Worship (Special Provisions) Act, 1991: Legislation preserving the religious character of places of worship as of August 15, 1947, and prohibiting their conversion.
• Hindutva: Ideology promoting Hindu nationalism.
• Communal Harmony: Peaceful coexistence and cooperation among different religious communities.
• Secularism: Principle of separating religion from state affairs and ensuring equal treatment of all religions.
• Petitions: Formal requests submitted to a court seeking legal action or remedy.

Important Phrases for mains value addition:

• “Non-retrogression as an essential feature of our secular values.”
• “Challenges to the Act amount to a breach of public trust.”
• “The politicization of petitions serves certain political narratives.”
• “The silence of the top court is unsettling.”

Quotes for quality enrichment of mains answers:

• “The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution.”
• “Similarly minded people are as little likely to be deterred by the provisions of the Places of Worship (Special Provisions) Act 1991.”
• “The ascertainment of the religious character of a place as a procedural instrument may not necessarily fall foul of the provisions of sections 3 and 4 of the Act of 1991.”
• The order of a district court in Uttar Pradesh in 1986 kick-started events leading to the destruction of the Babri Masjid, illustrating the significance of legal decisions regarding places of worship.
• The resurgence of demands for the reclamation of religious sites threatens communal harmony and challenges secular principles.
• The Supreme Court’s intervention is crucial to uphold the integrity of the Places of Worship Act and prevent its politicization.
• Petitions targeting mosques in Mathura, Varanasi, and other places highlight the growing challenges to the Places of Worship Act.
• The Babri Masjid-Ramjanambhoomi agitation and slogans like “Ayodhya to jhanki hai, Kashi, Mathura baqi hai” demonstrate historical grievances and communal tensions.
• The Places of Worship Act, 1991, preserves the religious character of places of worship as of August 15, 1947.
• The Supreme Court admitted petitions challenging the Act’s validity and the government’s delays in specifying its stance.

The article provides a comprehensive overview of the challenges posed by petitions targeting mosques and questioning the Places of Worship Act, 1991. It emphasizes the importance of preserving communal harmony and secular principles while addressing historical grievances. However, it also highlights the politicization of the issue and the need for timely intervention by the Supreme Court to prevent further escalation.

• The Supreme Court should actively intervene to uphold the integrity of the Places of Worship Act and prevent its politicization.
• Political leaders and stakeholders should prioritize communal harmony and refrain from using religious sentiments for political gain.
• Civil society should promote dialogue and understanding among different religious communities to prevent communal tensions.
• The government should clarify its stance on the Act and ensure its effective implementation to maintain secularism and protect religious freedoms.

Four issues that CJI highlighted within Legal Profession

Prelims level: Adjournment of Court

Mains level: Issues with Judicial Functioning

• During the Supreme Court’s 75th-year Foundation Day address, the Chief Justice of India (CJI) highlighted four crucial issues within the judiciary that require “difficult conversations.”
• This article delves into these issues and their historical context.

Major Issues with Legal Profession

[1] problem of “adjournment culture”.

• Definition : Adjournment culture refers to the practice of lawyers repeatedly seeking adjournments, delaying scheduled hearings.
• Effect on Justice : Prolonged adjournments lead to case delays and contribute to the growing backlog of pending cases.
• Legal Framework : Order XVII of the Civil Procedure Code, 1908 sets rules for granting adjournments, limiting them to three times, with sufficient cause shown.
• Vicious Cycle : Advocates exploit heavy workloads to seek adjournments, perpetuating delays.

[2] Managing Lengthy Oral Arguments

• Constitutional Bench Matters : The court directs parties to schedule oral arguments to avoid repetition in important cases.
• Mixed Success : Past cases, like the Ayodhya title dispute, had lengthy hearings despite scheduling.
• Recent Improvements : Under CJI UU Lalit, a Constitution Bench case involving EWS reservations achieved efficiency through time scheduling.
• US Model : The US Supreme Court restricts oral arguments to 30 minutes per side, considered but not adopted in India.

[3] Alternatives to Extended Court Vacations

• Flexi-Time : Introducing flexi-time for lawyers and judges is suggested, allowing them to choose working hours within a specified total.
• Philippines Example : The Philippines implemented flexi-time for court employees based on valid reasons.
• Historical Suggestions : Past reports and government recommendations aimed to reduce court vacations to tackle case backlog.
• Supreme Court Rules : In 2014, the court limited summer vacations to seven weeks instead of ten.

[4] Ensuring Equal Opportunities for First-Generation Lawyers

• Leveling the Field : The CJI emphasizes providing a level playing field for first-generation lawyers and marginalized segments with the potential to succeed.
• Progress : Over 50% of junior civil judge exam candidates are women, and 41% of Supreme Court law clerk candidates are women.
• Inclusivity Efforts : Initiatives by the Supreme Court Advocates-on-Record Association (SCAORA) aim to support diversity, including giving weightage to first-generation lawyers for Senior Advocate designations.
• Judicial Recognition : The judiciary acknowledges the growth and contributions of first-generation lawyers, dismissing claims that recognition is solely based on wealth and proximity.
• The judiciary faces multifaceted challenges, including adjournment culture, oral argument lengths, court vacations, and ensuring a fair platform for first-generation lawyers.
• Addressing these issues requires frank discussions, reforms, and continued efforts to uphold the principles of justice and inclusivity within the legal profession.

Diamond Jubilee celebrations of the Supreme Court

Prelims level: Supreme Court of India

Mains level: Read the attached story

• The Prime Minister inaugurated the diamond jubilee year celebrations of the Supreme Court, marking an important milestone in India’s judicial history.

About Supreme Court of India

• Apex Judicial Body : The Supreme Court of India is the highest judicial authority as per the Constitution of India.
• Constitutional Mandate : Article 124 of the Constitution stipulates the establishment of the Supreme Court.
• Birth of the Supreme Court : The Supreme Court came into being on January 26, 1950, coinciding with the commencement of the Indian Constitution.
• Inauguration : Two days after India became a Sovereign Democratic Republic, the Supreme Court was officially inaugurated on January 28, 1950.
• Initial Location : Initially, the Supreme Court operated from the old Parliament House until it relocated to its present site on Tilak Marg, New Delhi, in 1958.
• Inaugural Event : The inaugural ceremony of the current Supreme Court building was presided over by Dr. Rajendra Prasad, the first President of India, on August 4, 1958.

Evolution of Judicial Bench Strength

• Changing Dynamics : The original 1950 Constitution envisioned a Supreme Court comprising a Chief Justice and 7 puisne Judges, allowing Parliament to alter this number.
• Progressive Growth : Over the years, the number of Judges increased to accommodate the growing workload: 8 in 1950, 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986, 31 in 2009, and the current strength of 34 Judges.
• Judicial Structure : Judges sit in panels of two or three and convene in larger benches of 5 or more, known as Constitution Benches, to resolve conflicting decisions between different Supreme Court benches or address significant constitutional interpretations.
• Official Language : Proceedings in the Supreme Court are conducted exclusively in English.

Powers and Jurisdiction

• Multifaceted Jurisdiction : The Supreme Court possesses original, appellate, and advisory jurisdiction.
• Final Arbiter : It serves as the ultimate court of appeal and the ultimate interpreter of the Constitution.
• Original Jurisdiction : The Supreme Court’s original jurisdiction extends to disputes involving the Government of India and one or more States, inter-State disputes, and issues related to Fundamental Rights.
• Writ Jurisdiction : Article 32 of the Constitution empowers the Supreme Court with extensive original jurisdiction to enforce Fundamental Rights by issuing writs like habeas corpus, mandamus, prohibition, quo warranto, and certiorari.
• Inter-High Court Cases : The Supreme Court can direct the transfer of civil or criminal cases between High Courts.
• International Commercial Arbitration : Under the Arbitration and Conciliation Act, 1996, the Supreme Court can initiate International Commercial Arbitration.
• Appellate Authority : High Courts can grant certificates for appeals to the Supreme Court under Article 132(1), 133(1), or 134 in cases with substantial questions of constitutional interpretation.
• Certified Appeals : In civil cases, High Courts may certify that a case involves a significant question of general importance, warranting Supreme Court adjudication.
• Criminal Appeals : In criminal cases, appeals lie to the Supreme Court if the High Court has reversed an acquittal, sentenced an accused to death, imprisonment for life, or imprisonment for over 10 years, or if the High Court certifies the case’s suitability for Supreme Court appeal.
• Parliamentary Empowerment : Parliament can confer additional powers on the Supreme Court to hear appeals from High Courts in criminal proceedings.
• Special Leave to Appeal : Under Article 136, the Supreme Court may, at its discretion, grant special leave to appeal from any judgment, decree, or order passed by any Court or Tribunal in India.
• Advisory Role : The Supreme Court exercises advisory jurisdiction under Article 143, wherein the President of India can refer specific matters to the Court.
• Election Petitions : Part III of the Presidential and Vice-Presidential Elections Act, 1952, allows direct filing of election petitions in the Supreme Court.
• Contempt Powers : Articles 129 and 142 empower the Supreme Court to punish for contempt of Court, including self-contempt.
• Curative Petitions : After dismissing a review petition, the Supreme Court can reconsider its final judgment through a curative petition on limited grounds.
• Binding Authority : As India’s highest court, its judgments are binding on all other courts in the country.

Location of the Supreme Court

• Article 130 : Article 130 of the Constitution grants the Chief Justice of India the authority to choose the location of the Supreme Court, which can be in Delhi or any other place.
• CJI’s Discretion : The Article vests exclusive discretionary powers with the Chief Justice of India regarding the Supreme Court’s location.
• No External Compulsion : No external authority can compel the Chief Justice to act in a particular manner under this Article.

Advocating for Circuit Benches

• Law Commission Recommendation : The Law Commission’s 229th Report suggested establishing a Constitution Bench in New Delhi and four other benches in different regions of India.
• Diverging Views : However, this proposal did not garner favor among Supreme Court Judges.

Judicial contradiction in Delhi Chief Secretary’s extension

Prelims level: Chief Secretary's extension

Mains level: Government of National Capital Territory of Delhi (Amendment) Act 2023 Constitutional logic

The article criticizes the Supreme Court of India’s November 2023 judgment allowing a six-month extension to Delhi’s Chief Secretary despite serious corruption allegations. It highlights the Court’s perceived inconsistency in upholding constitutional principles, particularly concerning the Government of National Capital Territory of Delhi (Amendment) Act 2023, and expresses concerns about the erosion of constitutional logic and past judicial wisdom.

• The Supreme Court’s decision to permit the extension of Delhi’s Chief Secretary’s tenure is viewed as an instance of judicial self-abnegation.
• The article questions the Court’s reversal of its own earlier Services judgment, which emphasized the elected government’s control over services in Delhi.
• Serious corruption charges against the Chief Secretary and the Delhi Chief Minister’s recommendation for his removal create a conflict of interest.
• The Court’s reliance on the 2023 amendment and the interpretation of the Chief Secretary’s role is criticized for being inconsistent with past rulings, including Royappa.
• The article points out the Court’s failure to acknowledge that the 2023 amendment did not exclude the application of the Royappa case.
• The Supreme Court’s perceived inconsistency in interpreting constitutional principles, especially regarding the Chief Secretary’s extension and the 2023 amendment.
• Addressing the conflict of interest posed by serious allegations against the Chief Secretary and the breakdown of trust between the elected government and bureaucracy.
• The Court’s deviation from its past rulings, particularly the Services judgment and Royappa case, creates a challenge in maintaining a coherent judicial stance.

Key Terms/Phrases:

• Judicial self-abnegation
• Government of National Capital Territory of Delhi (Amendment) Act 2023
• Constitutional logic
• Chief Secretary’s extension
• Services judgment
• Royappa case
• Conflict of interest
• Constitutional interpretation
• Erosion of trust
• Unilateral extension

Key Quotes:

• “The Court’s judgments become ‘writ in water’ when it reverses its own reasoning for the government’s convenience.”
• “The Court has lost sight of constitutional logic and past wisdom that attributed great value to constitutional interpretation.”

Key Statements:

• “The article questions the Court’s deviation from its earlier stance, leading to a perceived erosion of constitutional principles and inconsistency.”
• “The conflict of interest arising from serious charges against the Chief Secretary and the breakdown of trust between the elected government and bureaucracy is a significant concern.”

Key Examples/References:

• The Supreme Court’s November 2023 judgment permitting the Chief Secretary’s extension and its reliance on the 2023 amendment.
• The Services judgment emphasizing the elected government’s control over services and the Royappa case defining the role of the Chief Secretary.

Key Facts/Data:

• The Government of National Capital Territory of Delhi (Amendment) Act 2023 had been challenged by the Delhi government but was not stayed by the courts.
• Serious allegations of corruption against the Chief Secretary and the Chief Minister’s recommendation for immediate removal.

The article critically examines the Supreme Court’s handling of the Chief Secretary’s extension, highlighting perceived inconsistencies, conflicts with past judgments, and a departure from established constitutional principles. It raises concerns about the erosion of trust between the elected government and bureaucracy.

• The Supreme Court needs to revisit and reconcile its past judgments, especially the Services and Royappa cases, to ensure a coherent judicial stance.
• Addressing conflicts of interest and corruption allegations in bureaucratic appointments is crucial for maintaining public trust.
• The Court should uphold constitutional principles consistently, considering the broader impact on governance and accountability.
• Future decisions related to the Government of National Capital Territory of Delhi (Amendment) Act 2023 should be made with a clear understanding of constitutional logic and democratic principles.

Justice for Bilkis Bano, questions on remission

Prelims level: Remission

Mains level: lack of transparency and unchecked discretion in the remission process

The article discusses a recent Supreme Court decision regarding the remission of 11 convicts in the Bilkis Bano case. It highlights the court’s condemnation of illegalities and collusion between the petitioners and the Gujarat government. While celebrating the decision as a triumph for justice, the author also raises concerns about the lack of transparency and unchecked discretion in the remission process.

• The Supreme Court cancels remission orders for 11 convicts due to fraud and collusion with the Gujarat government.
• The decision is praised for upholding the rule of law and addressing the exceptional injustice faced by Bilkis Bano.
• The article acknowledges the inspiring resilience of Bilkis Bano and applauds women’s rights lawyers for their commitment.
• Lack of transparency in the formation and decision-making process of remission committees.
• Unchecked discretion and potential for arbitrary exercise of power in remission decisions.
• Concerns about non-application of mind and identical orders in the remission process, as seen in the Bilkis Bano case.
• Remission : Reduction of sentence through earned days based on rehabilitation activities.
• Per incuriam: Declared as illegal due to a mistake or oversight.
• Retributive punishment: Focused on punishment rather than rehabilitation.
• Judicial review: Examination of a decision for legality and fairness.
• Usurpation of power: Unauthorized assumption of authority.

Key Phrases:

• “Injustice of exceptionalism”: Describes the grant of remission in the Bilkis Bano case as a unique and unjust situation.
• “Resilience that prevailed”: Commends Bilkis Bano’s enduring strength in the face of injustice.
• “Soothing balm”: Refers to the comfort provided by the Supreme Court’s firm decision.
• “Unchecked discretion”: Highlights the potential for arbitrary decision-making in remission cases.
• “Rule of law and equality before the law would be empty words if their violation is not a matter of judicial scrutiny.”
• “Remission is rooted in the logic that prisons are meant to be rehabilitative spaces.”
• “Justice Nagarathna’s words come as solace in light of the disturbing memory of the celebrations that followed the release of the 11 convicts.”

Key Examples and References:

• Bilkis Bano case: Illustrates the background of the Supreme Court decision and the injustices faced by the victim.
• Union of India vs V. Sriharan (2015): Reference to a Constitution Bench decision on the appropriate government for remission.
• Epuru Sudhakar vs State of Andhra Pradesh (2006): Supreme Court ruling on the judicial review of remission orders.

Key Facts and Data:

• Life convicts must serve a minimum of 14 years before applying for remission.
• Remission policies in some states deny opportunities based on crime categories.
• The Gujarat government’s remission orders for the 11 convicts were identical.

The article raises concerns about the arbitrary exercise of power in remission decisions, citing the lack of transparency and identical orders in the Bilkis Bano case. It prompts a reflection on whether certain offenders should be ineligible for remission or if a focus on fair compliance with conditions is more appropriate.

• Advocate for increased transparency in the formation and functioning of remission committees.
• Emphasize the importance of considering individual circumstances and compliance with remission conditions.
• Encourage a reevaluation of remission policies to avoid blanket denials based on crime categories.
• Address the issue of unchecked discretion to ensure a fair and rehabilitative approach in the remission process.

Curb the disillusionment with the traditional rule of law

Prelims level: Jan Vishwas Act

Mains level: potential challenges and consequences of shortcut methods in law enforcement

• The article explores challenges to the credibility of the rule of law, emphasizing the delicate balance between traditional norms and modern adaptations.
• Recent legal reforms in India, particularly the Jan Vishwas Act, are discussed, along with concerns about potential abuses of power through shortcuts in law enforcement.
• The article underscores the significance of faith in the inherent goodness of legal norms for trust in the rule of law.
• Discussion on the Jan Vishwas Act addressing outdated laws to facilitate business activities and reduce compliance burdens.
• Replacement of colonial-era laws with the Bharatiya Nyaya (Second) Sanhita to modernize legal thinking and rebuild credibility.
• The credibility crisis is attributed to shifts in perceptions of law as a power resource and the adoption of shortcut methods in law enforcement.
• Potential misuse of power through encounters and ‘bulldozer’ methods without democratic checks and balances.
• Concerns about the crude nature of an abridged rule of law, leading to arbitrary justice and unpredictability.
• Jan Vishwas Act
• Bharatiya Nyaya (Second) Sanhita
• Credibility crisis
• Shortcut or abridged rule of law model
• “Normative raison d’etre” – referring to the fundamental basis or justification of norms.
• “Smart governance” – addressing infirmities and outdatedness in laws through effective governance.
• “Encounter killings” and “bulldozer action” – methods of law enforcement discussed in the article.
• “Fear of imprisonment for minor offences is a major factor hampering the growth of the business ecosystem.”
• “The real credibility crisis of the rule of law is located not so much at the normative level but at the level of the rule of law reality.”
• Acknowledgment of the government’s faith in the traditional rule of law as a positive aspect.
• Highlighting the dangers of growing reliance on shortcut or abridged rule of law models.
• The Dandi March as an example of civil disobedience against an unjust law.
• Instances of police encounters and ‘bulldozer’ actions leading to potential abuses of power.
• The Jan Vishwas Act addressed changes in numerous central Acts, including the Indian Post Office Act, and the Cinematograph Act.
• Replacement of colonial-era Indian Penal Code, Code of Criminal Procedure, and Indian Evidence Act in the second phase.
• The article critically examines the evolving landscape of the rule of law, highlighting potential challenges and consequences of shortcut methods in law enforcement. It questions the credibility crisis and emphasizes the importance of maintaining faith in traditional norms.
• The article suggests staying alert to the dangers of shortcut or abridged rule of law models.
• Encouragement to continue faith in the traditional rule of law while acknowledging the need for necessary reforms.

Distrust of employers is bred into Indian policy. It needs to end

Prelims level: Jan Vishwas Bill 2.0

Mains level: Jan Vishwas Bill 2.0

The article delves into the repercussions of excessive jail provisions in Indian laws, particularly those affecting employers, advocating for the Jan Vishwas Bill Version 2.0 as a viable solution. The focus is on transitioning from a retail approach to a wholesale strategy for filtering out unnecessary criminal provisions, aiming to curb corruption, foster good job creation, and alleviate the judicial system’s burden.

• Jan Vishwas Bill 1.0 successfully eliminated 113 jail provisions across 23 laws, alleviating corruption demands on employers.
• Labor laws, notably the Factories Act, contain a significant number of imprisonment clauses, impeding high-productivity enterprises.
• The article suggests transitioning from a retail to a wholesale filtering approach for decriminalization, involving a government committee to identify criteria justifying jail provisions.
• Decriminalization is shown to ease the judicial system’s load, exemplified by the Ministry of Company Affairs’ actions outside the Jan Vishwas Bill.
• Excessive regulatory cholesterol, resulting from numerous compliances and filings, obstructs the growth of productive and compliant employers.
• Resistance to change from institutions defending the status quo.
• Balancing the need for compliance without stifling entrepreneurship.
• The complexity of labor laws and other regulations, making it challenging to identify and eliminate unnecessary jail provisions.
• Jan Vishwas Bill: Legislation aimed at reducing corruption demands on employers by eliminating unnecessary jail provisions.
• Regulatory cholesterol: Excessive regulatory burden hindering productivity and compliance.
• Decriminalization: The process of removing criminal penalties from certain offenses.
• “Retail to wholesale filtering”: Shifting the strategy from individual ministries volunteering for change to a positive list approach for decriminalization.
• “Regulatory arbitrage”: Corruption resulting from the subjective interpretation and enforcement of laws.
• “Civil service reform”: Advocating for changes in the civil service to address the root cause of regulatory issues.
• “Show me the person, and I’ll show you the crime.” – Lavrentiy Beria, highlighting the selective use of imprisonment clauses for corruption.
• “The most sustainable reform for keeping regulatory cholesterol low is civil service reform.” – Emphasizing the need for changes in the civil service to address regulatory issues.
• “The most sustainable reform for keeping regulatory cholesterol low is civil service reform.”
• “Excessive regulatory cholesterol currently hurts productive and compliant employers.”
• Mention of the Jan Vishwas Bill Version 1.0 and its success in eliminating 113 jail provisions.
• Reference to the Ministry of Company Affairs’ decriminalization efforts outside the Jan Vishwas Bill.
• Over 25,000 employer jail provisions, with 5,000 arising from central legislation.
• The Ministry of Company Affairs decriminalized over four dozen violations, leading to increased orders issued by the Registrar of Companies.

The article emphasizes the need for a comprehensive strategy to address the issue of excessive jail provisions in Indian laws. It identifies labor laws and other regulations as major contributors to the problem and suggests that a wholesale approach to decriminalization, guided by a government committee, would be more effective. The author contends that reducing regulatory cholesterol is crucial for fostering a conducive environment for job creation and economic growth.

• Implement Jan Vishwas Bill 2.0 with a focus on wholesale filtering for decriminalization.
• Establish a government committee with cognitive diversity to identify criteria justifying jail provisions for employers.
• Encourage collaboration between central ministries to remove unnecessary jail provisions that do not meet the committee’s criteria.
• Emphasize the importance of civil service reform for long-term sustainability in reducing regulatory cholesterol.
• Monitor and assess the impact of the Jan Vishwas Bill 2.0 on corruption, job creation, and the judicial system to ensure effectiveness.

Justice BR Gavai appointed as Chairman of Supreme Court Legal Services Committee

Prelims level: Supreme Court Legal Services Committee

• Justice BR Gavai has been appointed as the Chairman of the Supreme Court Legal Services Committee (SCLSC), succeeding Justice Sanjiv Khanna.

Understanding the Supreme Court Legal Services Committee

• Constitution and Purpose : The SCLSC, established under Section 3A of the Legal Services Authorities Act, 1987, aims to provide free legal services to weaker sections of society in cases under the Supreme Court’s jurisdiction.
• Composition : Chaired by a sitting Supreme Court judge, the committee includes members with prescribed experience and qualifications, all nominated by the Chief Justice of India (CJI).

Composition and Functioning of the SCLSC

• Current Members : As of now, the SCLSC comprises Chairperson BR Gavai and nine other members appointed by the CJI.
• Staffing and Administration : The Committee can appoint officers and employees as per the Centre’s guidelines, in consultation with the CJI.

Need for Legal Services in India

• Constitutional Basis : The Indian Constitution, particularly Article 39A, emphasizes the state’s role in ensuring legal justice is accessible to all citizens, regardless of economic or other disabilities.
• Historical Development : The concept of legal aid in India evolved over decades, with significant progress marked by the establishment of a national committee under Justice PN Bhagwati in 1980.

Legal Services Authorities Act and Its Provisions

• Statutory Framework : The 1987 Act provides a legal basis for offering free and competent legal services to eligible groups, including women, children, SC/ST, EWS categories, and others.
• Establishment of NALSA : Formed in 1995, the National Legal Services Authority (NALSA) oversees legal aid programs and formulates policies for legal services.
• Nationwide Network : The Act envisions a network across India for legal aid, with State Legal Services Authorities (SLSAs) and District Legal Services Authorities (DLSAs) implementing these services at state and district levels, respectively.

Role of State and District Legal Services Authorities

• State-Level Implementation : Each SLSA, led by the Chief Justice of the respective High Court, executes NALSA’s policies and provides free legal services.
• District and Taluk Committees : DLSAs and Taluk Legal Services Committees, chaired by district and senior civil judges respectively, conduct legal awareness programs and provide various legal services.

Kapil Sibal writes: The Collegium system has failed India

Prelims level: Collegium system

Mains level: backlog of cases, appointment of judges based on perceived proximity to political power

The author highlights the challenges faced by the Indian judiciary, emphasizing the need for unbiased judges and a political system that separates religion from politics. The use of religious sentiments for divisive purposes is criticized, calling for a transparent and merit-based judicial appointment system.

• Judicial challenges in handling a growing population and increasing litigations.
• Delayed justice in the Supreme Court, impacting the relevance of decisions.
• Concerns about the quality of judges and perceived ideological alignments in appointments.
• Critique of the current collegium system and its lack of transparency.
• Overburdened judiciary with a rising number of cases.
• Delayed justice affecting the effectiveness of legal decisions.
• Perceived ideological biases in judicial appointments.
• Lack of a transparent and merit-oriented system for judge selection.
• Collegium System: The system of appointing judges through a committee of senior judges.
• Ideological Alignment: Alleged connections between judges and specific political or religious ideologies.
• Judicial Hierarchy: The levels of the judicial system, with the Supreme Court being the highest.
• “Bedevilled with challenges”: Describing the complex issues faced by the judiciary.
• “Divide and rule”: Criticizing the use of religious emotions for political manipulation.
• “Seminal issues”: Highlighting the critical issues decided by the Supreme Court.
• “India needs judges who deliver justice unconcerned with majoritarian sentiments.”
• “The collegium system has failed us.”
• “For the judiciary to regain its glory, it needs to do more than just decide on cases.”
• Reference to the Chief Justice addressing dormant cases but acknowledging the urgency needed.
• Critique of the appointment of judges based on perceived proximity to political power.
• Increase in litigants seeking justice due to a burgeoning population.
• Delayed hearings and decisions in the Supreme Court.
• Issues with the current system of appointing judges.

The author criticizes the judiciary’s current state, highlighting issues of delayed justice, ideological biases, and the failure of the collegium system. Emphasis is placed on the need for transparency and merit in the appointment process.

• Reforming the judicial appointment process to ensure transparency and meritocracy.
• Addressing the backlog of cases to expedite justice delivery.
• Advocating for a political system that separates religion from politics to avoid divisive agendas.

Tribunals cannot direct Government to frame policy: SC

Prelims level: Tribunals

Central Idea

• The Supreme Court clarified that tribunals, bound by their governing legislations, cannot compel the government to formulate policy.
• It emphasized the separation of powers, stating that policy-making is outside the judiciary’s domain, including quasi-judicial bodies like tribunals.

What are Tribunals?

Case in focus: armed forces tribunal (aft) and policy direction.

• Specific Case Reviewed : The Bench addressed whether the AFT could direct the government to create a policy for appointing the Judge Advocate General (Air).
• General Observation : It has been consistently observed that courts cannot mandate the government to enact legislation or develop a policy.

Judicial Analysis and Reasoning

• Justice Karol’s Observations : Justice Sanjay Karol noted that the AFT, with powers akin to a civil court, lacks the authority of the Supreme Court or High Courts.
• High Courts’ Limitations : Even High Courts, under Article 226 of the Constitution, cannot order the government or its departments to establish specific policies.
• Government’s Prerogative : The judgment reinforced that policy creation, especially concerning defense personnel services or their regularization, is exclusively the government’s responsibility.

Implications of the Judgment

• Tribunals’ Restricted Powers : Tribunals must operate within the confines of their governing legislation and lack the jurisdiction to influence policy formation.
• Judiciary’s Role in Policy Matters : The judgment highlights the judiciary’s limited role in policy-making, even in cases where fundamental rights might be at stake.
• Separation of Powers : This ruling underscores the principle of separation of powers, delineating the distinct functions of the legislative, executive, and judicial branches.
• Respecting Institutional Boundaries : The judgment serves as a reminder of the importance of respecting the boundaries and roles of different government institutions in a democratic setup.
• Broader Implications : This decision has significant implications for how tribunals and courts interact with policy-making processes, emphasizing judicial restraint and adherence to the constitutional framework.

New criminal law Bills endanger civil liberties

Prelims level: BNSS

Mains level: need for fundamental transformations in the criminal justice system

Central idea 

The article critiques the withdrawal and reintroduction of criminal law bills in India, highlighting concerns over civil liberties, overcriminalisation, and expanded police powers. It emphasizes the alarming increase in police custody duration and the absence of a transformative vision in the proposed legislations.

• Legislative Changes: The government withdraws and reintroduces criminal law bills, including Bharatiya Nyaya Sanhita (BNS-II), Bharatiya Nagarik Suraksha Sanhita (BNSS-II), and Bharatiya Sakshya Bill (BSB-II), reflecting potential shifts in the criminal justice system.
• Concerns Over State Control: The bills raise concerns about the expansion of state control, overcriminalisation, and enhanced police powers, potentially compromising civil liberties and increasing the risk of police excesses.
• Police Custody Duration: The BNSS proposes a significant increase in the maximum duration of police custody, from 15 days to 60 or 90 days, raising concerns about potential exposure to abuse and coercion.
• Risk of Overcriminalisation: The bills introduce broadly worded offenses, especially related to the security of the state, potentially leading to overcriminalisation and ambiguous legal provisions.
• Expanded Police Powers: The BNSS’s expansion of police custody duration, combined with vague offenses, raises concerns about the potential for misuse of power and coercive tactics.
• Lack of Transformative Vision: The bills lack a transformative vision for criminal law and justice, potentially entrenching colonial-era logic and emphasizing state control over citizen liberties.

Key Terms and Phrases:

• Bharatiya Nyaya Sanhita (BNS-II): A proposed legislation to replace the Indian Penal Code (IPC, 1860), reflecting potential changes in criminal law.
• Bharatiya Nagarik Suraksha Sanhita (BNSS-II): A bill aimed at replacing the Criminal Procedure Code (CPC, 1973) with potential implications for civil liberties and police powers.
• Bharatiya Sakshya Bill (BSB-II): Legislation seeking to replace the Indian Evidence Act (IEA, 1872), indicating potential shifts in the criminal justice system.

Key Quotes and Statements:

• “The expansion under the proposed BNSS heightens the risk of exposure to police excesses… a shocking expansion of police powers.”
• “These Bills present a missed opportunity to correct the entrenched injustices of our criminal justice system.”
• Overcriminalisation Concerns: The bills introduce broadly framed offenses, including criminalizing misinformation, raising fears of overcriminalisation and potential misuse.
• Expansion of Police Custody: The BNSS proposes a substantial increase in the duration of police custody, contributing to concerns about potential abuse and coercive practices.
• Duration of Police Custody: The BNSS proposes expanding the maximum limit of police custody from 15 days to either 60 or 90 days, depending on the nature of the offense.
• Missed Opportunity: The bills are criticized for not addressing deep-seated issues in the criminal justice system and potentially entrenching colonial-era logic without a transformative vision.
• Efficiency vs. Fairness: Emphasizes that goals of speedy justice and effective investigation, while important, cannot be achieved without addressing structural barriers and ensuring fairness.
• Comprehensive Regulatory Ecosystem: Advocates for a regulatory framework ensuring fairness, transparency, and accountability, especially in the context of expanded police powers and overcriminalisation.
• Structural Reforms: Emphasizes the need for fundamental transformations in the criminal justice system, addressing issues like judicial vacancies, infrastructure, and scientific validity of forensic methods.

Supreme Court makes video on Kesavananda Bharati Verdict

Prelims level: Kesavananda Bharati Verdict (1973), Basic Structure

• The Supreme Court of India released a video in 10 Indian languages, commemorating the 50th anniversary of the Kesavananda Bharati judgment delivered on April 24, 1973.
• The Kesavananda Bharati vs. State of Kerala case is a cornerstone in Indian constitutional law, redefining the relationship between Parliament and the Constitution.

Kesavananda Bharati Case (1973)

• Basic Structure Doctrine : The judgment introduced the basic structure doctrine, asserting that the Constitution has an inherent framework that cannot be altered by parliamentary amendments.
• 7-6 Decision : The Supreme Court, in a narrow decision, established its authority to invalidate constitutional amendments violating this basic structure.
• Limitation on Parliamentary Power : The doctrine restricts Parliament’s ability to amend key constitutional features like the separation of powers.
• Judicial Review Reinforcement : It built upon the Golaknath v. State of Punjab case, allowing for the review of amendments affecting the Constitution’s basic structure.
• Article 31-C and Judicial Review : The Court upheld the constitutionality of Article 31-C’s first provision, stating that amendments implementing Directive Principles, which do not disturb the basic structure, are not subject to judicial review.

Criticism of the Basic Structure Doctrine

• Dilution of Parliamentary Powers : Critics argue that the doctrine undermines parliamentary sovereignty and disrupts the separation of powers.
• Ambiguity Concerns : The doctrine’s perceived vagueness and subjectivity in judicial review have also been points of contention.

Landmark Cases Involving the Doctrine

• Indira Gandhi v Raj Narain (1975) : The Court applied the Kesavananda doctrine to strike down the 39th Amendment, which sought to immunize the elections of top officials from judicial scrutiny.
• Minerva Mills Ltd vs. Union of India (1980) : The Court invalidated a clause in Article 368, asserting that Parliament’s constituent power had no limitations.
• P Sambamurthy v State of Andhra Pradesh (1986) : The Court struck down part of the 32nd Amendment related to the establishment of an Administrative Tribunal in Andhra Pradesh.
• L Chandra Kumar v Union of India (1997) : The Court nullified a portion of the 42nd Amendment that established administrative tribunals and excluded High Court judicial review.

Significance of the Judgment and the Doctrine

• Empowerment of Judicial Review : The doctrine underpins the judiciary’s authority to review and potentially override constitutional amendments by Parliament.
• Clarification of Article 368 : It distinguishes Article 368 as a procedural mechanism for amendment, not a power to alter the Constitution’s core or basic structure.
• Harmony with Legislative Authority : Justice Shastri emphasized that judicial review is a constitutional duty, not an attempt to undermine legislative power.
• Checks and Balances System : The Kesavananda Bharati verdict underscored that judicial review serves as a check and balance, ensuring constitutional functionaries remain within their prescribed limits.

On Constitution Day, more people-friendly laws

Prelims level: na

Mains level: Legal Language Simplification

Central idea

The Indian government, led by Prime Minister Narendra Modi, is actively simplifying legal language to promote “Access to Justice,” making legal texts more understandable for every citizen. This strategic initiative, aligned with constitutional principles, addresses historical ambiguities and leverages technology to enhance accessibility, contributing to global legal recognition and fostering a transformative journey toward inclusive justice.

• Legal Language Simplification: The Indian government, led by Prime Minister Narendra Modi, is undertaking a mission to simplify legal language, aligning with the vision of “Access to Justice” and aiming to make legal texts more accessible to the common citizen.
• Constitutional Principle: The initiative reflects the constitutional principle that legal language should be understandable to every citizen, emphasizing the importance of ensuring citizens comprehend their rights and responsibilities.
• Correction of Ambiguities: The government is addressing historical ambiguities in legal language, such as those in Sections 213 and 214 of the IPC, to enhance legal precision and effective enforcement, eliminating potential loopholes.
• Global Recognition: The government’s commitment to simplifying legal language has gained international recognition, positioning India as a forward-thinking adopter of progressive measures for legal accessibility.
• Digital Transformation: The simplification efforts align with the Digital India campaign, leveraging technology to enhance accessibility, with online platforms and digital resources making legal information more readily available.
• Historical Complexities: Addressing historical intricacies in legal language poses a challenge, requiring thorough examination and correction of ambiguities that have persisted over time.
• Public Engagement: While seeking public input in the simplification process is a positive step, ensuring effective public engagement and capturing diverse perspectives can be challenging.
• Access to Justice: The overarching vision guiding the simplification initiative, aiming to remove barriers of legal complexity that hinder the common citizen’s understanding of legal texts.
• Legal Empowerment: The goal of simplification extends beyond language, aiming to empower citizens with legal knowledge, fostering a sense of legal empowerment among the diverse population.
• “We must see that the constitution is not only passed by the Constituent Assembly but that it is also worked by the common people of the country.” – B R Ambedkar
• “The government envisions a legal landscape where language is not a barrier but a bridge to justice.”
• The reduction in legal disputes due to misunderstandings and misinterpretations underscores the positive impact of the simplification initiatives in fostering a clearer legal framework.
• Continue the integration of plain language drafting principles into legal education to nurture a generation of legal professionals capable of navigating legal intricacies with clarity and precision.
• Sustain efforts to engage the public in the simplification process, ensuring diverse perspectives are considered for comprehensive legal accessibility.
• Monitor and evaluate the impact of simplification on reducing legal disputes and enhancing India’s global economic competitiveness.
• Explore additional measures, such as comprehensive glossaries in multiple languages, to further enhance the understanding of legal language among citizens.

Revamping the criminal justice system to fit the bill

Prelims level: Various acts

Mains level: Criminal justice system

The government wants to change some important laws in India, causing questions about making them more modern and fair. The study says that the government should be very careful when making these changes to ensure that the new laws are fair and work well. The main idea is to check and fix the laws to make sure they are right for today.

Definitions and drafting of new bills

• Mental Illness Exception in IPC Replacement Bill : The new Bill, replacing the IPC, introduces a provision exempting individuals suffering from mental illness from being considered offenders. This marks a shift from the previous term “unsound mind.”
• Definition Alignment with Mental Healthcare Act, 2017 : The definition of mental illness in the Bill aligns with the Mental Healthcare Act, 2017, aiming to provide medical treatment to those with mental illness. Notably, mental retardation or incomplete development is excluded, while abuse of alcohol or drugs is included.
• Differential Exemption Based on Condition : The new Bill grants full exemption to individuals addicted to alcohol or drugs under the mental illness exception. However, those unable to understand the consequences of their actions due to mental retardation are not granted the same exemption.
• Retention of Obsolete Illustrations : The existing laws, including the IPC, incorporated illustrations from daily life to explain their provisions. Despite some illustrations becoming obsolete, they have been retained in the new Bill.
• Need for Modernization in Illustrations : Recognizing the changing times, there is a suggestion that the illustrations, such as people riding chariots, firing cannons, and being carried on palanquins, should be updated to reflect contemporary events from modern life. This aims to enhance the relevance and clarity of the legal framework.

Seven issues related to modernising jurisprudence

• Exclusion of Civil Law: The Bills are questioned on whether they appropriately exclude civil law issues, despite the CrPC’s provisions for post-divorce maintenance and compounding certain offences. The new Bills retain these provisions.
• Reformative vs. Punitive System: The Bills’ approach towards a reformative system is examined with the introduction of community service as a punishment. However, non-compoundability of minor offences, leading to trial and conviction, raises concerns.
• Integration of Public Order and Prosecution: The CrPC’s structure, encompassing public order and criminal prosecution, is retained in the new Bills, prompting consideration on whether this integration is appropriate.
• Codification of Supreme Court Directions: The Bills are critiqued for not codifying various Supreme Court directions, excluding procedures for mercy petitions, thus creating potential gaps in the legal framework.
• Consistency of Implementation: The Bills’ retention of wide sentencing ranges for certain offences is examined for its impact on ensuring consistency in implementing penalties across cases.
• Age Provisions for Modern Norms: The need for updating age provisions in line with modern norms is questioned, specifically exploring whether age thresholds for criminal responsibility should be raised.
• Update of Gender-Related Offences: The Bills align with Supreme Court judgments by removing Section 377 and addressing gender-related offences. However, the omission of making marital rape an offence, despite recommendations from the Justice Verma Committee in 2013, is noted.

Key Phrases from article to fetch good marks in mains:

• Legislative Overhaul
• Reformative vs. Punitive
• Public Order and Prosecution
• Supreme Court Directions
• Consistency of Implementation
• Gender Offenses

Critical analysis

The bills offer a legislative overhaul, but challenges arise in areas of overlap with special laws, gaps in Supreme Court directions, and concerns about consistency in sentencing. The debate over reformative vs. punitive systems, age thresholds, and gender offenses adds complexity to the proposed changes.

• IPC Enacted: 1860
• CrPC Enacted: 1973
• IEA Enacted: 1872
• Legal Metrology Act, 2009
• Medical Termination of Pregnancy Act, 1971
• Mental Healthcare Act, 2017

Overlap of new laws with special laws

• Historical Context of IPC : The IPC, established in 1860, serves as the primary legislation outlining offenses and penalties, shaping the foundation of the Indian legal system.
• Issue of Duplication and Inconsistency :Concerns arise as the IPC, along with the proposed replacement Bill, continues to specify certain offenses and penalties, leading to duplication and inconsistencies across various laws.
• Addressing Specific Overlaps : Positive instances of addressing overlaps are noted, such as the removal of IPC provisions related to weights and measures by the Legal Metrology Act, 2009.
• Persistent Overlaps in New Bill: Despite some adjustments, the new Bill, like the IPC, exhibits overlaps with several other Acts, including those related to food adulteration, sale of adulterated drugs, bonded labor, and rash driving.
• Abortion as an Offense : Noteworthy is the retention of abortion as an offense in the new Bill, even though the Medical Termination of Pregnancy Act, 1971 permits it under specific conditions.
• Maintenance of a Parent Provision : The Bill replacing CrPC maintains the provision for the maintenance of a parent, despite a specific Act passed in 2007 addressing this matter. This raises questions about consistency and necessity.
• Parliament needs to carefully examine the bills to ensure fairness, justice, and efficiency in the criminal justice system.
• Address concerns related to overlap with special laws, sentencing ranges, and gaps in codifying Supreme Court directions.
• Consider updating outdated illustrations and ensuring clarity in definitions for a modernized legal framework.
• Deliberate on the debate over reformative vs. punitive systems, age thresholds, and gender-related offenses for a comprehensive legislative approach.

Advocate-on-Record (AoR) in Supreme Court

Prelims level: Advocate-on-Record (AoR)

• In a recent development, the Supreme Court of India dismissed a public interest litigation filed by an Advocate-on-Record (AoR), emphasizing that an AoR cannot be a mere “signing authority.”
• This incident has sparked discussions on the role and significance of AoRs in the Indian legal system.

Who is an Advocate-on-Record (AoR)?

• Historical Roots: The AoR system is influenced by British legal practices, distinguishing between barristers who argue cases and solicitors who handle client matters. In India, senior advocates are designated by the Court, akin to barristers, and cannot solicit clients but are briefed by other lawyers, including AoRs.
• Exclusive Right to File Cases: Only an AoR is authorized to file cases before the Supreme Court of India. They serve as a vital link between litigants and the highest judicial authority in the country.
• Elite Legal Practitioners: AoRs are a select group of elite lawyers, primarily based in Delhi, whose legal practice predominantly revolves around the Supreme Court. They may also represent clients in other courts.
• Court of Last Opportunity: The concept behind the AoR system is to ensure that a litigant is represented by a highly qualified lawyer because the Supreme Court is often considered the last resort for legal remedies.

Becoming an AoR

• Eligibility Criteria: To qualify as an AoR, an advocate must meet specific criteria set by the Supreme Court Rules, 2013.
• Examination: Aspiring AoRs must clear an examination conducted by the Supreme Court, which includes subjects like Practice and Procedure, Drafting, Professional Ethics, and Leading Cases.
• Training Requirement: Before taking the exam, an advocate must undergo training with a court-approved AoR for at least one year. This training is preceded by a minimum of four years of legal practice.

Responsibilities and Rules Governing AoRs

• Geographical Presence: AoRs must maintain an office in Delhi within a 16-kilometer radius of the Supreme Court.
• Employment of Registered Clerk: Upon registration as an AoR, an undertaking is required to employ a registered clerk within one month.
• Regulatory Authority: While Section 30 of the Advocates Act grants lawyers the right to practice law nationwide, it explicitly acknowledges the Supreme Court’s authority to establish rules under Article 145 of the Constitution for regulating its own procedure.

Article 142 of Indian Constitution

Prelims level: Article 142, Hindu Marriage Act

Mains level: Not Much

Central idea:  Supreme Court has ruled that it can dissolve a marriage on the ground of irretrievable breakdown, using its power under Article 142(1), without referring the parties to family court for waiting period of 6-18 months for mutual consent divorce.

What is Article 142?

Article 142 titled ‘Enforcement of decrees and orders of the Supreme Court and orders as to discovery, etc.’ has two clauses:

[1] Article 142(1)

• The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
• Any decree so passed or order so made shall be enforceable throughout the territory of India.
• It may be in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

[2] Article 142(2)

• The Supreme Court shall have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

History of Article 142

• When a draft Constitution was prepared by the drafting committee and placed before the Constituent Assembly, Article 142 was actually numbered as Article 118.
• It was placed before the Constituent Assembly on May 27, 1949 for debate but got adopted on the same day without any debate.
• This was possibly because everyone agreed that in order to ensure judicial independence, the highest court of the country must be empowered with plenary power to do complete justice.

Article 142 in Divorce Cases

(1) current divorce process.

• The Hindu Marriage Act allows for “divorce by mutual consent.”
• Both parties must file a petition to the district court, citing that they have been living separately for at least one year and mutually agree to dissolve the marriage.
• The parties must then move a second motion before the court, no earlier than six months after filing the first petition and no later than 18 months after the same date.

(2) Factors considered for irretrievable breakdown

The Court must be convinced that the marriage is “totally unworkable, emotionally dead, and beyond salvation.” The following factors can be considered:

• The period of time that the parties had cohabited after marriage
• When the parties had last cohabited
• Nature of allegations made by the parties against each other and their family members
• Orders passed in the legal proceedings from time to time
• Cumulative impact on the personal relationship
• Whether and how many attempts were made to settle the disputes by a court or through mediation, and when the last attempt was made.
• The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor.
• It is necessary to evaluate the factors according to the economic and social status of the parties, including their educational qualifications, whether they have any children, their age, and whether the spouse and children are dependents.

Try this PYQ from CSP 2019:

Q.With reference to the Constitution of India, prohibitions or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on the constitutional powers under Article 142. It could mean which one of the following?

• The decisions taken by the Election Commission of India while discharging its duties cannot be challenged in any court of law.
• The Supreme Court of India is not constrained in the exercise of its powers by laws made by the Parliament.
• In the event of grave financial crisis in the country, the President of India can declare Financial Emergency without the counsel from the Cabinet.
• State Legislatures cannot make laws on certain matters without the concurrence of Union Legislature.

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Supreme Court’s Integration with the National Judicial Data Grid

Prelims level: National Judicial Data Grid

• On September 14th, the Supreme Court of India took a monumental stride by incorporating its case data into the National Judicial Data Grid (NJDG).

What is the National Judicial Data Grid (NJDG)?

• Comprehensive Repository: NJDG stands as a comprehensive online repository, housing orders, judgments, and case particulars from a vast network of 18,735 District and subordinate Courts and High Courts.
• Real-time Access: This platform is an integral component of the eCourts Project, providing real-time updates and in-depth data down to the Taluka level.

Administration of NJDG

• E-Courts Initiative: NJDG was conceived as part of Phase II of the e-Courts project, a Centrally Sponsored Scheme designed to modernize the Indian judiciary.
• Collaborative Effort: The National Informatics Centre (NIC) collaborated closely with the in-house software development team of the Computer Cell at the Supreme Court to bring NJDG to fruition.
• User-Friendly Interface: NJDG boasts an interactive interface and an analytics dashboard, ensuring accessibility for legal professionals and the general public.

The Power of Data

• Monitoring and Management: NJDG serves as a potent tool for monitoring and managing case backlogs, ultimately alleviating the burden of pending cases.
• Supreme Court’s Example: Analyzing data from the Supreme Court in 2023, it reveals a total pendency of 64,854 registered cases, with 5,412 new cases received and 5,033 cases disposed of in the last month. This underscores that the backlog primarily consists of legacy cases, managed at a rate comparable to the annual influx of new cases.
• Identifying Bottlenecks: NJDG aids in identifying specific bottlenecks in the judicial process. For instance, a surge in land dispute cases in a particular state prompts policymakers to consider strengthening relevant laws.
• Insights from the Chief Justice: Chief Justice Chandrachud noted that year-wise pendency data indicates the Supreme Court has less than a hundred cases pending from before 2000, allowing the Chief Justice to prioritize the resolution of the oldest cases.
• Specialized Insights: NJDG also facilitates the generation of insights into specific areas of law. For instance, it links Land Records data from 26 States with NJDG to track land dispute cases effectively.

What is Preventive Detention?

Prelims level: Preventive Detention

Mains level: Issues with Preventive Detention

• Ahead of a religious procession, a few people were taken into preventive custody (preventive detention) in Haryana.
• Arrest occurs when an individual is charged with a crime .
• Preventive Detention involves detaining individuals to prevent them from engaging in actions that could disrupt law and order, without them being charged with a specific crime.

Preventive Detention in Indian Law

• Detention without Magistrate’s Order: Police officers can arrest individuals without a magistrate’s order or warrant if they suspect potential criminal behavior.
• Preventive Detention Law, 1950: This law permits arrest and detention if an individual’s freedom threatens national security, foreign relations, public interests, or the country’s well-being.
• Unlawful Activities Prevention Act (UAPA), 1968: UAPA empowers the state to imprison individuals who question Indian sovereignty territorially or belong to organizations declared illegal.

Constitutional Safeguards and Exceptions:

• Article 22(1) and 22(2): These constitutional provisions ensure that arrested persons are informed of the charges, can seek legal representation, and are presented before a magistrate within 24 hours.
• Article 22(3): However, these safeguards do not apply to enemy aliens or persons arrested under specific laws for preventive detention.

Preventive Detention Statistics

• Increasing Trend: The NCRB report reveals a surge in preventive detentions, with over 24,500 individuals detained at the end of 2021 – the highest number since 2017.
• National Security Act (NSA): Among these detentions, over 483 were under the National Security Act, with almost half still detained by the end of 2021.
• Historical Perspective: In 2017, 67,084 people were detained preventively, out of which 48,815 were released within six months, while 18,269 remained in custody.

Concerns and Legal Perspectives

• Increasing cases: The number of preventive detentions has been rising since 2017, with a significant surge in 2021.
• Supreme Court’s Stand: The Supreme Court has emphasized that preventive detention is only justifiable to prevent public disorder and should not replace ordinary laws for maintaining law and order.
• Balancing Civil Liberties: While preventive detention serves to curb anti-social and subversive elements, concerns arise about potential abuse, arbitrariness, and violations of civil liberties.

Nari Adalat: Women-only Courts

Prelims level: Nari Adalat

• The government is launching a unique initiative ‘Nari Adalat’ to establish women-only courts at the village level.

Nari Adalat

• Nari Adalat aims to provide an alternative dispute resolution forum for issues such as domestic violence, property rights, and countering patriarchal norms.
• The pilot project will commence in 50 villages each in Assam and Jammu and Kashmir, with plans for nationwide implementation over the next six months.

Structure and Functioning  

• Composition: Each Nari Adalat will consist of 7-9 members, with half elected members of the gram panchayat and the other half being women with social standing, such as teachers, doctors, and social workers.
• Objectives: It will address individual cases, promote awareness about social schemes, collect feedback, raise awareness about legal rights, and resolve cases falling within its jurisdiction.
• Services Provided: The platform will offer alternate dispute resolution, grievance redressal, counseling, evidence-based decision making, pressure group tactics, negotiation, mediation, and reconciliation for accessible and affordable justice.

Implementation and Collaboration

• Ministry-In-Charge: The Ministry of Women and Child Development will oversee the implementation of the scheme under the Sambal sub-scheme of Mission Shakti , dedicated to women’s safety, security, and empowerment.
• Collaborative Efforts: The Ministry of Panchayati Raj, the Ministry of Rural Development, and the Ministry of Electronics and Information Technology’s Common Service Centers will collaborate in the implementation process.
• Standard Operating Procedures: Detailed procedures for all states have been prepared and will be released to ensure uniformity and effective functioning of Nari Adalats.

Inception of the idea

• Previous Initiatives: The scheme draws inspiration from the Parivarik Mahila Lok Adalats (People’s Court of Women) previously operated by the National Commission for Women (NCW).
• Focus Areas: These courts addressed matters related to family affairs, matrimonial disputes, bigamy, succession, and motor vehicle accident disputes related to labor.
• Discontinued Scheme: The NCW-assisted Parivarik Mahila Lok Adalats conducted a total of 298 sessions before the scheme was discontinued in 2014-15.

 Need for such scheme

• Persisting Gender Bias: Women’s only courts counter gender bias in traditional court systems, providing a fair and non-discriminatory environment for women’s cases.
• Cultural and Social Barriers: These courts break down cultural and social barriers that prevent women from seeking justice, offering a culturally sensitive space where they can freely participate.
• Empowerment and Agency : Women’s only courts empower women to assert their rights, challenge patriarchal norms, and access justice independently.
• Addressing Specific Issues: These courts focus on women’s unique issues, including domestic violence, property rights, and gender-based discrimination.
• Enhanced Access to Justice: By being located at the village level, women’s only courts improve access to justice for women who face geographical and logistical challenges in reaching mainstream courts.
• Alternative Dispute Resolution: These courts offer mediation and negotiation options, which are more effective and less adversarial for resolving disputes, particularly in family and community conflicts.
• Precedents and Awareness: Women’s only courts set legal precedents and raise awareness about women’s rights, influencing social norms and promoting positive change.
• The establishment of women-only courts at the village level through the Nari Adalat initiative demonstrates the government’s commitment to empowering women and promoting gender justice.

What is Habeas Corpus Petition?

Prelims level: Habeas Corpus

Central Idea: The Madras High Court has accepted a request made on behalf of a Minister’s wife, for an urgent hearing of a habeas corpus petition filed by her accusing the Enforcement Directorate (ED) of not having followed due procedure while arresting her husband early.

Habeas Corpus: A Safeguard for Personal Liberty

• Definition: Habeas corpus is a legal recourse that enables individuals to challenge unlawful detentions or imprisonments by reporting them to a court.
• Purpose: It allows individuals to request the court to order the custodian, typically a prison official, to present the detained person before the court and determine the legality of the detention.
• Applicability in India: In India, the power to issue a writ of habeas corpus is vested in the Supreme Court and the High Courts.
• Quick Remedy: Habeas corpus is considered an effective means of promptly addressing the loss of personal liberty without legal justification.

Article 32: Right to Constitutional Remedies

• Fundamental Right: Article 32 of the Constitution of India affirms the right to constitutional remedies, granting individuals the right to approach the Supreme Court for the enforcement of their fundamental rights.
• Scope: It empowers the Supreme Court to issue directions, orders, or writs to uphold the rights conferred in Part III of the Constitution.
• Suspension: The right guaranteed by Article 32 cannot be suspended except under specific provisions mentioned in the Constitution, such as during a state of emergency.
• Significance: Dr. B.R. Ambedkar described Article 32 as the soul and heart of the Constitution, emphasizing its crucial role in safeguarding rights.

Rights Protected by Article 32

• Inclusion in Part III: Article 32 is listed alongside other fundamental rights in Part III of the Constitution, including the right to equality, freedom of speech and expression, life and personal liberty, and freedom of religion.
• Direct Approach to Supreme Court: Under Article 32, individuals can directly approach the Supreme Court only when any of their fundamental rights are violated.

Types of Writs under Article 32

• Habeas Corpus: Pertains to personal liberty in cases of illegal detention and wrongful arrest.
• Mandamus: Directs public officials, governments, and courts to perform their statutory duties.
• Quo Warranto: Requires a person to demonstrate the authority by which they hold a public office.
• Prohibition: Orders judicial or quasi-judicial authorities to halt proceedings beyond their jurisdiction.
• Certiorari: Allows the re-examination of orders issued by judicial, quasi-judicial, or administrative authorities.

Remedy Hierarchy and Fundamental Rights Violations

• Civil or Criminal Matters: In civil or criminal cases, individuals first approach trial courts, followed by appeals to the High Courts and the Supreme Court.
• Violation of Fundamental Rights: In cases of fundamental rights violations, individuals have the option to approach the High Court under Article 226 or directly approach the Supreme Court under Article 32 for redress.

Try this PYQ:

Q. Which of the following is included in the original jurisdiction of the Supreme Court?

• Disputes between the Government of India and one or more States
• A dispute regarding elections to either the House of the Parliament or the of Legislature of a State
• A dispute between the Government of India and the Union Territory
• A dispute between two or more States.

Select the correct answer using the codes given below:

(a) 1 and 2

(b) 2 and 3

(c) 1 and 4

(d) 3 and 4

Post your answers here. 4 Please leave a feedback on this x

Back2Basics: Comparison of Writs

[pib] nyaya vikas portal.

Prelims level: Nyaya Vikas Program

Central Idea: The Nyaya Vikas Portal has been created for monitoring the implementation of the Centrally Sponsored, Nyaya Vikas Scheme.

What is Nyaya Vikas Program?

• Initiated by the Department of Justice in 1993-94.
• Aims to develop infrastructure facilities for districts and subordinate judiciary.
• Provides central assistance to state governments and UT administrations for constructing court halls and residential units.
• Extended beyond March 31, 2021, with additional features for convenience, such as lawyers’ halls, toilet complexes, and digital computer rooms.
• Funding sharing pattern: 60:40 between the central government and state governments (excluding North Eastern and Himalayan States), 90:10 for North Eastern and Himalayan States, and 100% for Union Territories.

About Nyaya Vikas Portal

• The Nyaya Vikas Portal has been created to monitor the implementation of the CSS for Development of Infrastructure Facilities for Districts and Subordinate Judiciary.
• It allows stakeholders to log in through four efficient ways, providing seamless access to information related to funding, documentation, project monitoring, and approval.
• The portal ensures transparency and accessibility by providing stakeholders with a centralized platform to access information about funding, documentation, project monitoring, and approval processes.

Impact of the Scheme

• Improved infrastructure: The portal’s monitoring capabilities contribute to the effective utilization of funds for constructing court halls, residential units, lawyers’ halls, toilet complexes, and digital computer rooms.
• Enhanced judicial services: By providing better infrastructure and facilities, the portal enhances the delivery of judicial services to lawyers, litigants, and judicial officers.
• Strengthened rule of law: The efficient implementation of the scheme through the portal strengthens the rule of law by ensuring access to justice and adequate infrastructure for the judiciary.

Live streaming of Court Proceedings

Prelims level: NA

Mains level: Live Streaming of Court

• The significance of live-streaming court proceedings as an extension of the ‘open justice’ and ‘open courts’ principle remains largely unrealized in India.
• Only nine out of the 25 High Courts in the country have implemented live streaming , while the Supreme Court restricts it to Constitutional cases.

What is live-streaming technology?

• At its core, streaming content is meant to help people attend events, expos, and experiences they cannot attend in person.
• Live streaming technology is how videos are streamed over the internet, live, in real-time, as they are being recorded.
• Live streaming technology is the internet’s response to live television broadcasts, with the most popular being news shows and sports.

Why discuss this?

• The Supreme Court emphasized the need for live streaming in district courts and High Courts as these are the courts where most citizens seek justice.
• Time and resource constraints, as well as the inability to travel long distances, limit public access to court hearings.
• Videoconferencing became essential since the COVID-19 pandemic, as physical hearings were not possible.

Early Adopters

• The Gujarat HC pioneered live streaming in October 2020, streaming proceedings on YouTube as an experiment.
• Other HCs, such as Karnataka and Meghalaya, followed with varying degrees of success.
• The Gujarat HC’s YouTube channel gained 1.24 lakh subscribers and 1.9 crore views.

Existing Restrictions

• Model Rules for Live Streaming and Recording of Court Proceedings: These exclude certain case categories from live streaming, including matrimonial matters, child adoption and custody, sexual offences, child sexual abuse, and juvenile cases.
• Broadcasting rights issue: The Delhi High Court notified rules for live streaming proceedings but imposed restrictions such as a ban on reproducing or transmitting audio-visual recordings.

Significance of live streaming

• Instilling Faith in the Judiciary: Allowing ordinary people to view the workings of the highest court without barriers builds faith in the judiciary.
• Empowering the Masses: Live streaming enables the legal system to empower the masses and develop an informed citizenry.
• Respect for Rule of Law: Understanding the importance of the rule of law and how the judiciary protects the rights of marginalized sections of society.
• Living up to Constitutional Expectations: Live streaming aligns with public interest and the preservation of constitutional Article 19 and 21.
• Increased Transparency: Encourages the principle of open court, reduces reliance on second-hand information, and allows the public’s right to know.
• Elevating Legal Standards: Lawyers become better prepared, refrain from irresponsible remarks, and take justice delivery more seriously.
• Level Playing Field: Provides equal opportunities for younger lawyers to showcase their skills and competence.
• Academic Advancement: Inspires law students and encourages legal research on the functioning of the judiciary and the legal profession.
• Easy Accessibility: Eliminates the need for physical presence, allowing litigants to access proceedings from anywhere.

Issues with such policy

• Contempt of Court: Existing video clips of court proceedings on social media platforms often lack context and sensationalize events, potentially undermining the dignity of the court.
• Disinformation and Sensationalism: There are concerns that misuse or selective use of live streaming content may contribute to the spread of disinformation among the public.
• Unnecessary Activism: Increased visibility through live streaming could lead to justices behaving like politicians, seeking individual exposure rather than focusing solely on justice.

Physical barriers for it

• Internet Connectivity: Issues related to internet connectivity may hinder seamless live streaming, requiring attention for reliable access to court proceedings.
• Adequate Infrastructure: Provision of well-equipped spaces where lawyers can effectively present their cases is crucial for a smooth transition to live-streamed proceedings.
• Awareness and Training: Judges, court staff, and lawyers may lack familiarity with digital technology and its benefits. Efforts should be made to raise awareness and provide comprehensive training to ensure their proficiency.

Global examples

• Several countries, including the United States, Brazil, the United Kingdom, Canada, and China, have implemented live streaming of court proceedings in various formats.
• Live streaming formats include audio recordings (US), video recordings streamed on television (Brazil), video streaming on court websites (UK, Canada), and live streaming from trial courts up to the supreme court (China).

Way Forward

To promote open justice and improve access to justice, the following steps are recommended:

• Implementation of live streaming in all courtrooms of the Supreme Court and across all High Courts and district courts.
• Ensuring adequate infrastructure for videoconferencing and live streaming beyond the pandemic.
• Reviewing and revising restrictions on live streaming to strike a balance between transparency and privacy concerns.
• Conducting awareness campaigns to educate the public about the availability and benefits of live-streamed court proceedings.

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Why do judges seek ‘RECUSAL’ for themselves?

Prelims level: Recusal of Judges

Recusals by judges have been a frequent occurrence in recent weeks, raising important questions about the circumstances under which judges should recuse themselves, the need for recording reasons for recusal , and the reliance on individual judges’ discretion.

What is Recusal?

• Recusal is the removal of oneself as a judge or policymaker in a particular matter, especially because of a conflict of interest.
• Recusal usually takes place when a judge has a conflict of interest or has a prior association with the parties in the case.
• For example, if the case pertains to a company in which the judge holds stakes, the apprehension would seem reasonable.
• Similarly, if the judge has, in the past, appeared for one of the parties involved in a case, the call for recusal may seem right.
• A recusal inevitably leads to delay. The case goes back to the Chief Justice, who has to constitute a fresh Bench.

Reasons for Judicial Recusal

• Conflict of interest: Recusal often occurs when a judge has a direct conflict of interest or a prior association with the parties involved in a case. For instance, if a judge holds stakes in a company involved in the case, it would be reasonable to recuse themselves.
• Earlier difference of opinion: Similarly, if the judge previously represented one of the parties in a case, recusal may be necessary.
• Prevent bias: Some judges may recuse themselves based on apprehension of bias, while others may refuse to withdraw, considering the potential damage to the institution.
• Absence of Codified Rules : India currently lacks codified rules specifically governing recusals, but the Supreme Court has addressed the issue through various judgments.

Procedure for Recusal

• Automatic and Plea-based Recusal : Recusal can happen automatically when a judge recognizes a conflict of interest or when a party raises a plea for recusal due to bias or personal interest.
• Judge’s Discretion : The decision to recuse rests solely on the conscience and discretion of the judge; no party can compel a judge to withdraw.
• Transfer of the Case : When a judge recuses, the case is transferred to the Chief Justice, who reassigns it to an alternate bench to ensure the continuity of proceedings.

Recording Reasons for Recusal

• Responsibility of Judges : Since there are no statutory rules, judges are responsible for recording their reasons for recusal.
• Oral or Written Disclosure : Reasons for recusal can be specified orally in open court or through a written order, or they may remain undisclosed.
• Lack of transparency: This regarding reasons for recusal has faced criticism, particularly when mass recusals occur in sensitive cases.
• Motives undisclosed: Some judgments have argued for the need to indicate reasons to avoid attributing motives to recusals, while others express concerns that specifying reasons could lead to challenges and hinder the recusal process.
• Inevitable delay : Recusal inevitably leads to delays in the proceedings as the case is transferred back to the Chief Justice, who must assign it to a fresh bench.

Past Supreme Court Rules on Recusal

• Factors for Impartiality : The Supreme Court has established various factors to determine the impartiality of a judge in previous judgments.
• Reasonableness of Apprehension : The reasonableness of the party’s apprehension of bias is a crucial consideration when deciding whether recusal is necessary.
• Definition of Judicial Bias : Judicial bias is defined as a predisposition that compromises a judge’s impartiality.
• Real Danger Test : Pecuniary interests automatically disqualify a judge, while other cases require applying the “real danger” test to evaluate the possibility of bias.

Issues with Recusal

• Abdication of Duty : Recusal has been viewed as a potential abdication of a judge’s duty, raising concerns about maintaining institutional civility while fulfilling the independent role of judges as adjudicators.
• Importance of Providing Reasons : Justice Kurian Joseph, in his separate opinion in the 2015 National Judicial Appointments Commission (NJAC) judgment, emphasized the importance of judges providing reasons for recusal to enhance transparency.
• Constitutional Duty for Transparency : Indicating reasons for recusal is a constitutional duty, reflecting the need for judges to be transparent and accountable.

Practices in Foreign Jurisdictions

• United States: It has well-defined laws and codes that explicitly detail grounds for recusal, such as financial interests, prior involvement as a lawyer or witness, and relationships with parties.
• United Kingdom : It has adopted the “real danger” test to disqualify judges based on substantive evidence of bias, although this approach has faced criticism.

Importance of Appearance of Bias

• The European Convention of Human Rights emphasizes the significance of the “appearance of bias” to ensure fairness from the perspective of a reasonable observer.
• To ensure fairness and maintain public trust in the justice system, it is crucial to establish clear guidelines and rules for recusal in India.
• Codifying principles, requiring judges to record reasons for recusal, and promoting transparency can address concerns about bias and uphold the integrity of the judiciary.
• Learning from foreign jurisdictions, such as studying the comprehensive recusal laws in the United States, can provide valuable insights for developing a robust framework for recusal in India.
• Enhancing transparency and accountability in the recusal process will contribute to a stronger and more trusted judicial system.

CJI criticizes Forum Shopping Practice

Prelims level: Forum Shopping

Mains level: Ethics in judicial conduct

• The CJI, DY Chandrachud expressed his disapproval of forum shopping, a practice in which litigants or lawyers deliberately choose a specific judge or court that they believe will provide a more favorable judgment.

Understanding Forum Shopping

• Forum shopping refers to the intentional selection of a court or judge by litigants or lawyers with the expectation of obtaining a favourable outcome.
• It involves strategically moving a case to a particular jurisdiction based on a perception of better judgment.
• Lawyers consider the appropriate forum as part of their litigation strategy, sometimes opting for higher courts like the Supreme Court to gain wider attention for their case.
• However, deliberately avoiding a specific judge or manipulating the process to obtain favourable treatment is generally discouraged.

Concerns and Criticisms

The practice of forum shopping raises several concerns, including:

• Injustice to the Other Party: Forum shopping can result in unfair treatment and injustice to the opposing party, as it undermines the principle of impartiality and equal access to justice.
• Overburdening Certain Courts: Concentrating cases before specific judges or courts can overload their workload, causing delays and hindering the judicial process.
• Interference with Judicial Process: Forum shopping interferes with the smooth functioning of the judicial system, as cases may be filed and refiled in multiple jurisdictions, leading to unnecessary duplication of efforts.

Approaches in Common Law Countries

• Countries following the common law tradition, including the US and UK, have criticized forum shopping and adopted measures to discourage or prohibit the practice.
• One such measure is the principle of “forum non-conveniens,” which grants courts discretionary powers to refuse jurisdiction when another court or forum would be more appropriate to hear the case.
• This allows the court to dismiss a case in the interest of justice and fairness, redirecting it to the appropriate venue.
• The Supreme Court, in its ruling in ‘Chetak Construction Ltd. vs. Om Prakash (1988) ,’ emphasized that a litigant should not be allowed to choose the forum and called for stern action against any attempt at forum shopping.

Supreme Court’s View on Forum Shopping

• In a 2022 ruling, the Supreme Court reiterated its condemnation of forum shopping, citing its previous 2017 ruling in ‘Union of India & Ors. vs. Cipla Ltd.’
• The court established a “ functional test ” to determine whether forum shopping is occurring.
• The test considers the functional similarity between different courts or whether a litigant is employing subterfuge to manipulate the system.

To address the issue of forum shopping, it is essential to:

• Create Awareness: Raise awareness among litigants, lawyers, and the general public about the negative consequences of forum shopping and the importance of upholding judicial integrity and fairness.
• Strengthen Ethical Standards: Emphasize the ethical obligations of lawyers to uphold the integrity of the legal profession and discourage forum shopping practices.
• Streamline Jurisdictional Rules: Develop clear guidelines and rules regarding jurisdictional issues to prevent unnecessary disputes and ensure cases are heard by the appropriate courts.
• Judicial Training and Monitoring: Provide training and guidance to judges on identifying and addressing instances of forum shopping, while also monitoring court proceedings to detect any potential manipulation.
• By implementing these measures, the legal system can discourage forum shopping, uphold the principles of justice and fairness, and maintain the integrity of the judicial process.

Supreme Court guideline for granting Bail

Prelims level: Types of Bail in India

Mains level: Prison reforms in India

Central Idea: The Supreme Court emphasized that orders in bail cases should adhere to the constitutional principle of personal liberty.

Supreme Court on Bail

• Short debates: Prolonged debates on bail may prejudice the accused in their case.
• Upholding liberty: Delays in pronouncing bail decisions impinge on the personal liberty of the undertrial.
• No extensive discussions and elaborations: The Supreme Court highlights the significance of brevity (state of being brief, concise) in bail orders.
• No early delving into case details: Long orders may unnecessarily delve into the details of the case, which is not appropriate at the bail stage.
• Ensuring fairness and impartiality: Such brevity ensures that the case is not unduly influenced or prejudiced during the bail proceedings.
• Promptness in pronouncing bail decisions: The Court emphasized the need for prompt pronouncement of bail decisions. Every day of waiting affects the personal liberty of the undertrial.

What is Bail?

• Bail is the conditional release of a defendant with the promise to appear in court when required.
• The term also means the security that is deposited in order to secure the release of the accused.

Types of Bail in India

• Depending upon the sage of the criminal matter, there are commonly three types of bail in India:
• Regular bail: Regular bail is generally granted to a person who has been arrested or is in police custody. A bail application can be filed for the regular bail under section 437 and 439 of CrPC.
• Interim bail: This type of bail is granted for a short period of time and it is granted before the hearing for the grant of regular bail or anticipatory bail.
• Anticipatory bail: Anticipatory bail is granted under section 438 of CrPC either by session court or High Court. An application for the grant of anticipatory bail can be filed by the person who discerns that he may be arrested by the police for a non-bailable offense.

Conditions for Grant of Bail in Bailable Offences

• Section 436 of the Code of Criminal Procedure, 1973, lays down that a person accused of a bailable offence under IPC can be granted bail if:
• There are sufficient reasons to believe that the accused has not committed the offence.
• There is sufficient reason to conduct a further inquiry in the matter.
• The person is not accused of any offence punishable with death, life imprisonment or imprisonment up to 10 years.

Conditions for Grant of Bail in Non-Bailable Offences

• Section 437 of Code of Criminal Procedure, 1973 lays down that the accused does not have the right to apply for bail in non-bailable offences.
• It is discretion of the court to grant bail in case of non-bailable offences if:
• The accused is a woman or a child, bail can be granted in a non-bailable offence.
• There is a lack of evidence then bail in non-Bailable offenses can be granted.
• There is a delay in lodging FIR by the complainant, bail may be granted.
• The accused is gravely sick.
• Huge pendency of undertrials: Referring to the state of jails in the country, where over two-thirds lodged are undertrials,

What is the law on bail?

• The CrPC does not define the word bail but only categories offences under the Indian Penal Code as ‘bailable’ and ‘non-bailable’.
• The CrPC empowers magistrates to grant bail for bailable offences as a matter of right.
• This would involve release on furnishing a bail bond, without or without security .
• Bail Law would certainly take care of not only the unwarranted arrests but also the clogging of bail applications before various courts.
• With restrictive bail conditions and a conservative view on bail, we may forget the meaning of personal liberty, which is the greatest of human freedoms enjoyed in India.

Bangalore Principles of Judicial Conduct

Prelims level: Bangalore Principles of Judicial Conduct

The Supreme Court of India has directed the Registrar General of the Calcutta High Court to investigate an alleged interview given by a judge to a news channel in which he made remarks against a politician. This is cited against Bangalore Principles of Judicial Conduct.

What are Bangalore Principles?

• The Bangalore Code of Judicial Conduct was drafted in 2001 for the Judicial Group on Strengthening Judicial Integrity and presented to the Round Table Meeting of Chief Justices in November 2002.
• Resolution 23 of the United Nations Social and Economic Council promotes implementation of the Bangalore Principles by the judiciaries of Member States.
• The principles are intended to establish standards for ethical conduct of judges.
• They are designed to provide guidance to judges and to offer the judiciary a framework for regulating judicial conduct.

Six core values recognized

Significance of these principles.

• The principles define their meaning and elaborate in detail on what kind of conduct is to be expected in concrete terms of the persons concerned in order to put the respective value into practice.
• A number of specific instructions are given under each of the values.
• Not only have some States adopted the Bangalore Principles but others have modelled their own Principles of Judicial Conduct on them.

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India Justice Report, 2022: Key Highlights

Prelims level: India Justice Report

Central idea: The third India Justice Report , 2022 analyses the changes – both positive and negative – in India’s justice delivery system across four parameters: police, judiciary, prisons and legal aid.

Below are some of the salient findings of the report – overcrowded prisons, not enough training centres for police personnel, a rising number of pending cases per judge, and more.

• The report highlights that India’s criminal justice system continues to face a wide range of challenges and shortcomings that need to be addressed to ensure the rule of law and equal access to justice.
• Some of the key areas that require immediate attention include the need for better police training and infrastructure, reducing overcrowding in prisons, and improving the speed and efficiency of the judicial system.
• Additionally, the report calls for greater attention to be paid to the needs of victims of crime, including improving access to legal aid and victim compensation schemes.
• By addressing these challenges, India can move closer to achieving a more equitable and effective criminal justice system.

CJI announces launch of ‘Neutral Citations’ for SC judgements

Prelims level: Neutral Citiation

The CJI expressed hope that High Courts too would follow neutral citation for their judgments. The Delhi, Kerala, and Madras HCs have already introduced neutral citation.

What is a “Citation”?

• A case citation is essentially an identification tag for a judgment.
• Typically, it would contain a reference number, the year of the judgment, the name of the court that delivered that judgment, and a shorthand for the journal publishing the judgment.

And what is a neutral citation?

• A neutral citation would mean that the court would assign its own citation — distinct from those given by traditional Law Reporters.
• Law Reporters are periodicals or annual digests that publish judgments, often with an editorial note to make it accessible for lawyers to refer to precedents.
• For example, for the landmark Kesavananda Bharati case, the citation in ‘Supreme Court Cases’, a journal published by the Eastern Book Company, is (1973) 4 SCC 225.
• In the All India Reporter (AIR), the citation is AIR 1973 SC 1461.

Why is a neutral system good or necessary?

• Judgments mention citations while referring to precedents and often use citations from different Law Reporters.
• With artificial intelligence (AI) enabled translation of judgments and transcribing of court proceedings, a uniform citation is necessary.
• Several High Courts including Delhi High Court have started a neutral citation format.
• The Delhi HC neutral citation is, for example, in this format: No-YEAR/DHC/XXXXXX

How will the SC implement the neutral citation system?

• Our recent initiative is neutral citations for all judgments of the Supreme Court.
• So all 30,000 judgments are going to have neutral citations.
• First tranche will be till January 1, 2023, then the other tranche will be till judgments from 2014 and then finally we will go back to 1950.

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Debating the Abolition of Judicial Vacations

Prelims level: Judicial Vacations

Mains level: Issues with Judicial Vacations

• The longstanding tradition of judicial vacations in India has come under scrutiny as a parliamentary committee.
• Recent remarks by Chief Justice DY Chandrachud reignited discussions on the allocation of vacation days to Indian judges, shedding light on the intricate dynamics of judicial work patterns and the rationale behind vacation allotments.

Vacation in Judiciary

• Judicial Workdays: The Supreme Court has 193 working days annually, High Courts function around 210 days, and trial courts operate for 245 days. High Courts possess the authority to structure their calendars as per service rules.
• Long-standing Practice: The practice of vacations, particularly the extensive 7-week (formerly 10-week) summer recess, has its origins in colonial times.

Understanding Vacation Benches

• Composition and Role: The CJI appoints a Vacation Bench, a specialized court that operates during the Supreme Court’s summer and winter breaks. Although the court is not fully closed during vacations, this bench handles cases deemed “urgent matters.”
• Urgent Cases: While there is no explicit definition for “urgent matters,” the Vacation Bench typically entertains writs associated with habeas corpus, certiorari, prohibition, and quo warranto, all related to enforcing fundamental rights.
• Rule 6 of Order II of the Supreme Court Rules, 2013: Under this rule, the CJI nominates Division Benches for urgent miscellaneous and regular hearing matters during the summer vacation period. The rule allows for the appointment of judges to hear urgent cases individually or in a Division Court.

Historical Significance and Notable Cases:

• Impactful Decisions: Vacation Benches have delivered significant judgments in the past. A well-known instance is when a Vacation Bench Judge refused PM Indira Gandhi’s plea to stay an Allahabad High Court decision in 1975, which led to the Emergency declaration.
• Triple Talaq Case: In 2017, a Vacation Bench of the Supreme Court heard the triple talaq case during vacation days.

Debates and Arguments Surrounding Vacation Benches

[a] arguments in favor:.

• Judicial Rejuvenation: Advocates emphasize the need for vacation periods to provide judges with mental and physical rejuvenation.
• Extended Work Hours: Considering the demanding nature of judicial work, proponents assert that the long working hours necessitate periodic breaks.
• Writing Judgments: Judges use vacation time to draft judgments, contributing to the timely disposal of cases.

[B] Arguments Against:

• Pendency and Delays: Critics argue that the extended and frequent vacations exacerbate the backlog of cases and contribute to the slow pace of justice delivery.
• Inconvenience to Litigants: For litigants, vacations translate to additional delays in case hearings.

Calls for Reform

• Malimath Committee (2000): The committee proposed reducing vacation periods by 21 days, advocating for the Supreme Court to operate for 206 days and High Courts for 231 days annually.
• Law Commission of India (2009): The commission recommended curtailing vacations by 10-15 days and extending court working hours to address the substantial backlog of cases.
• Supreme Court’s 2014 Rule Change: The Supreme Court truncated the summer vacation period from 10 weeks to seven weeks.
• RM Lodha Commission (2014): It suggested that individual judges should take leave at different times throughout the year instead of having all judges on vacation at once.

Proposed Approach and Suggested Changes

• Continuous Operation: The 133rd committee supports the notion that individual judges should take their leave at different intervals, thereby ensuring that the courts remain open throughout the year.
• Redefined Judicial Vacations: The parliamentary report calls for a reevaluation of the traditional concept of vacations, advocating for a more modern and efficient approach to court operation.
• Comparison with Other Countries: The report suggests that the vacation practices of the Supreme Court and High Courts should be reviewed in comparison to other countries’ higher courts and constitutional institutions.
• The debate surrounding the abolition of judicial vacations in India emphasizes the necessity for a dynamic and effective approach to court operations.
• While the tradition has historical significance, the current judicial landscape calls for a re-evaluation of practices to ensure efficient functioning, address the backlog of cases, and minimize inconveniences to litigants.

Supreme Court says NO to Sealed Cover suggestions

Prelims level: Sealed Cover Jurisprudence

Central idea: The Supreme Court has said it did not want to accept in a “ sealed cover ” the Centre’s suggestions on who could be the members of a committee the court had proposed to assess the market regulatory framework and recommend measures, if any, to strengthen it in the wake of the Adani-Hindenburg affair.

What is the news?

• The article is about a public interest petition filed in the Supreme Court that calls for the establishment of an expert panel to strengthen regulatory mechanisms related to the Adani Group.
• The petitioners argue that the Adani Group has been able to bypass regulatory hurdles through its influence on government officials and agencies.

What is Sealed Cover Jurisprudence?

• It is a practice used by the Supreme Court and sometimes lower courts, of asking for or accepting information from government agencies in sealed envelopes that can only be accessed by judges.
• A specific law does not define the doctrine of sealed cover.
• The Supreme Court derives its power to use it from Rule 7 of order XIII of the Supreme Court Rules and Section 123 of the Indian Evidence Act of 1872.

Need for sealed cover jurisprudence

There are several reasons why sealed cover jurisprudence is used-

• National security: For example, in cases involving sensitive information related to defense or intelligence agencies, the disclosure of such information in open court proceedings could compromise national security.
• Individual privacy: It is also used to protect the privacy in cases involving sensitive personal information. In such cases, the court may allow the submission of such information in a sealed cover to protect the privacy of the individual concerned.
• Protect commercial or trade secrets: In cases involving disputes between companies, the disclosure of confidential information related to their business operations could harm their commercial interests.

Nature of the power: Upholding Secrecy

• If the Chief Justice or court directs certain information to be kept under sealed cover or considers it of confidential nature, no party would be allowed access to the contents of such information.
• There is an exception to this if the Chief Justice himself orders that the opposite party be allowed to access it.
• It also mentions that information can be kept confidential if its publication is not considered to be in the interest of the public.
• As for the Evidence Act, official unpublished documents relating to state affairs are protected and a public officer cannot be compelled to disclose such documents.

Grounds of such secrecy

Other instances where information may be sought in secrecy or confidence is when its publication:

• Impedes an ongoing investigation of cases related to national security
• Details that are part of the police’s case diary or
• Breaches the privacy of an individual

Prominent cases of sealed jurisprudence

Sealed cover jurisprudence has been frequently employed by courts in the recent past.

(1) Rafale Deal

• In the case pertaining to the controversial Rafale fighter jet deal, a Bench headed by CJI Ranjan Gogoi in 2018, had asked the Centre to submit details related to deal’s decision making and pricing in a sealed cover.
• This was done as the Centre had contended that such details were subject to the Official Secrets Act and Secrecy clauses in the deal.

(2) Bhima Koregaon Case

• In the Bhima Koregaon case, in which activists were arrested under the Unlawful Activities Prevention Act.
• The Supreme Court had relied on information submitted by the Maharashtra police in a sealed cover.

Issues with such jurisprudence

• Undermines open justice: This practice appears to be unfavorable to the principles of transparency and accountability of the Indian justice system.
• Erodes public faith: It stands in contrast to the idea of an open court, where decisions can be subjected to public scrutiny.
• Increases arbitrariness: It is also said to enlarge the scope for arbitrariness in court decisions, as judges are supposed to lay down the reasoning for their decisions.
• Unfair trials: Besides, it is argued that not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication.
• Conduct an independent and thorough investigation: Inquire into the allegations raised in the petition, and take appropriate legal action against the Adani Group if they are found to have violated environmental regulations.
• Establish an expert panel as suggested by the petitioners: To review the regulatory framework and suggest measures to strengthen it. The panel should include experts from various fields, including environmental science, law, and economics.
• Ensure transparency and accountability in the regulatory process: Foster a culture of environmental awareness and responsibility among businesses by promoting sustainable and eco-friendly practices. This could involve providing incentives and support to companies that adopt such practices.
• Review the use of sealed cover jurisprudence: Ensure that it is used judiciously and only in cases where it is necessary to protect sensitive or confidential information.

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73rd establishment day of Supreme Court

The Supreme Court of India is hosting its celebration of the 73rd anniversary of its establishment today.

Why in news?

• This year’s event is being aired on social media platforms and will witness Singapore’s Chief Justice Sundaresh Menon, who is of Indian origin, as the chief guest.

When was the Supreme Court founded?

• On January 28, 1950, two days after India became a sovereign democratic republic, the Supreme Court of India came into being.
• The first CJI of India was H. J. Kania.
• The inauguration took place in the Chamber of Princes in the Parliament building which was the home to the Federal Court of India for 12 years preceding the Supreme Court’s establishment.
• The Parliament House was to be the home of the Supreme Court for years that were to follow until the court acquired its own present building with lofty domes and its signature spacious colonnaded verandas in 1958.

History of established

• In 1861, the Indian High Courts Act 1861 was enacted to create high courts for various provinces and abolished Supreme Courts at Calcutta, Madras and Bombay and also the sadar adalats in presidency towns in their respective regions.
• These new high courts had the distinction of being the highest courts for all cases till the creation of the Federal Court of India under the Government of India Act 1935.
• The Federal Court had jurisdiction to solve disputes between provinces and federal states and hear appeals against judgment of the high courts.

Premise of the Supreme Court

• In 1958, when the court shifted its premises, the building was shaped to project the image of scales of justice, in the central wing.
• In 1979, two new wings – the East wing and the West wing – were added to the complex. In all, there are 19 Courtrooms in the various wings of the building.
• The Chief Justice’s Court is the largest of the Courts located at the Centre of the Central Wing.

Is Judicial Majoritarianism justified?

Prelims level: Article 145(5) of the Constitution

As the recent majority judgment of the Supreme Court on demonetization comes under criticism, the minority judgment by J. Nagarathna is being hailed for its challenge to the RBI’s institutional acquiescence (reluctant acceptance) to the Central government.

What is Judicial Majoritarianism?

• Numerical majorities are of particular importance to cases which involve a substantial interpretation of constitutional provisions.
• The requirement for a majority consensus flows from Article 145(5) of the Constitution which states that no judgment in such cases can be delivered except with the concurrence of a majority.
• It also provides for judges to freely deliver dissenting judgments or opinions.
• In important cases, Constitutional Benches , consisting of five or more judges, are set up in consonance with Article 145(3) of the Constitution.
• Such Benches usually consist of five, seven, nine, 11 or even 13 judges.
• Blind acceptance: This situation raises questions with respsect to our blind acceptance of numerical majority judgements.
• Disregard for dissent: This flags issues in judicial decision-making and the constitutional disregard of analysis and appreciation of arguments and evidence in dissenting judgments.
• Merits of dissent: Analysts now seek to challenge the weightage given to numerical majorities in judicial decisions by our Constitutional Courts as opposed to the merits in their reasoning.

Heart of the debate: Why do experts need to resort to ‘majority’?

• Defiance of merit: A meritorious minority decision, irrespective of the impeccability of its reasoning receives little weightage in terms of its outcomes.
• Complex situations: All judges on a particular Bench give their rulings on the same set of facts, laws, arguments and written submissions.
• Nature of bias: Judicial hunches may be an outcome of subjective experiences, outlooks, perceptions, prejudices and biases.

Narrow margin: Some meritorious dissents in India

Our Constitutional history is replete with such meritorious dissents-

• The dissenting opinion of Justice H.R. Khanna in A.D.M. Jabalpur v. Shivkant Shukla (1976) upholding the right to life and personal liberty even during situations of constitutional exceptionalism is a prime example.
• Another example is the dissenting opinion of Justice Subba Rao in the Kharak Singh v. State of U.P. (1962) case upholding the right to privacy which received the judicial stamp of approval in the K.S. Puttaswamy v. UOI (2017) case.
• Weightage-based assent in judgments: Ronald Dworkin proffers a system that may either give more weightage to the vote of senior judges given that they have more experience or to the junior judges as they may represent popular opinion better.
• Doing away with headcounts: Such alternatives, however, can only be explored once we identify and question the premises and rationales which underlie head-counting in judicial decision-making.
• Imbibe critical discourse: The absence of a critical discourse on judicial majoritarianism represents one of the most fundamental gaps in our existing knowledge regarding the functioning of our Supreme Court.
• Cases to expert benches: As pending Constitutional Bench matters are listed for hearing and judgments are reserved, we must reflect upon the arguments of judicial majoritarianism on the basis of which these cases are to be decided.
• There is a need to reflect upon the concept of judicial majoritarianism.
• The academic discourse on this aspect is still nascent and developing.

Hurdles in Judicial Infrastructure Upgrade

Mains level: Issues with Judicial Infrastructure

• With every new Chief Justice, India’s judicial infrastructure returns to the spotlight. It was Justice S.H. Kapadia who in 2010, first tried to have a systematic plan to examine the conditions of existing infrastructure and realize the future needs of district judiciary.

Attempt at judicial Infrastructure upgrade from Judiciary

• Magistrate infrastructure: We have had Justice T.S. Thakur publicly lament the poor conditions in which magistrates’ function.
• Vacancy in district judiciary: Then Justice Ranjan Gogoi successfully streamlined filling up of vacancies in district judiciary.
• National judicial infrastructure authority: Justice N.V. Ramana initiated a discussion on creation of a national judicial infrastructure authority, which has been rejected.
• Strengthening district judiciary: And now we have Justice D.Y. Chandrachud raising the issue of strengthening the district judiciary.

Attempt of Government of India in upgrading Judicial infrastructure

• Allocation of funds: The Centre has been attempting to improve infrastructure at the district level in a consistent manner by allocating funds.
• Centrally sponsored schemes: Since 1993-94, a centrally sponsored scheme (CSS) of the Union government has tried to address the issue of bringing judicial infrastructure up to par.
• Contribution from states: Through the scheme, the Centre has been earmarking funds with contributions from respective state governments in the ratio of 60:40 (90:10 for North-eastern states and union territories), including monitoring progress of initiated projects.
• No improvement in district courts: Despite the scheme spearheaded by the Ministry of Law and Justice, there hasn’t been any considerable improvement in the physical state of our district courts, leaving successive Chief Justices to lament about the poor state of affairs.

Reasons for non-progress in judicial Infrastructure

• Non-utilization of funds: Most of the funds allocated under the scheme remain unutilised because states do not come forward with their share, leading to lapse of annual budgetary allocation. Sample this: a total of Rs 981.98 crore were sanctioned in 2019-20. Ultimately, only Rs 84.9 crore came to be spent, leaving 91.36% funds unutilised. In 2020-21, of the sanctioned Rs 594.36 crore, Rajasthan emerged on the top by utilising Rs 41.28 crore but again substantial funds lapsed due to non-utilisation.
• No ownership of scheme: There is no single ownership of the scheme. Lack of one coordinating agency prevents its successful execution. The CSS, in its current form, visualises a separate state- and central-level monitoring committees.
• No representation of judiciary in central committees: In the central committee, there is no representation of the judiciary as an institution. So, the ultimate consumer of the scheme is absent from the entire process.
• Lack of planning: Lack of planning for the future also has its casualties. At present, the central scheme does not plan to cater to future requirements. So, there is no discussion on the foreseeable workload of district judiciary in the coming 10-20 years.
• No single agency to implement: The lack of a single agency prevents from realising both the short-term and long-term objectives. Short-term objectives such as constructing courtrooms for the existing judicial strength as opposed to sanctioned strength, record rooms, computer service rooms, etc. suffer in the absence of a single agency that could measure progress of planned initiatives and nudge the stakeholders into acting.

What is the way forward?

• Single dedicated institution: A single permanent body as proposed by Justice Ramana would bring a cohesive approach with ensuring that when states submit action plans for upgrading/establishing judicial infrastructure, they also deposit their share of funds with the authority.
• Working with state government: While the actual work is carried out in partnership with the states, it will ensure that one agency is responsible for mapping out objectives and achieving them.
• Justice is keystone of healthy society and just Nation. India cannot move ahead to its economic prosperity without upgrading its judiciary. Upgrading the judicial infrastructure should be priority for the judiciary as well as government.

Mains Question

Q. Enlist the historical attempt at upgrading judicial infrastructure. Despite so much attempts, what are the major reasons for lack of judicial infrastructure?

Quasi-Judicial Bodies

Prelims level: Quasi-Judicial Bodies

Mains level: Quasi-Judicial Bodies and its Challenges

• There is a class of quasi-judicial agencies that are not discussed in conversations on the pendency of cases. Their failure to administer speedy justice leads to harassment of citizens, besides abetting criminal activity by unscrupulous elements.

What are the quasi-judicial bodies

• Role of adjudicating the law: A quasi-judicial body is “an organ of Government other than a Court or Legislature, which affects the rights of private parties either through adjudication or rulemaking”.
• Not a court of law: It is not mandatory that a Quasi-Judicial Body has to necessarily be an organization resembling a Court of Law. For example, the Election Commission of India is also a Quasi-Judicial Body but does not have its core functions as a Court of Law.
• Some examples of Quasi-Judicial Bodies: Election Commission of India, National Green Tribunal, Central Information Commission (CIC), Lok Adalat etc.

Functioning of quasi-judicial bodies

• Supervise the administrative disputes: They primarily oversee the administrative zones. The courts have the power to supervise over all types of disputes but the quasi-judicial bodies are the ones with the powers of imposing laws on administrative agencies.
• Lessen the burden on courts: These bodies support to lessen the burden of the courts. Quasi-judicial activity is restricted to the issues that concern the particular administrative agency. Quasi-judicial action may be appealed to a court of law.
• Limited role of adjudication: Their powers are usually limited to a particular area of expertise, such as financial markets, employment laws, public standards, immigration, or regulation.
• Rules of justice are pre-determined: Awards and judgements of quasi-judicial bodies often depend on a pre-determined set of rules or punishment depending on the nature and gravity of the offence committed.
• Its award can be challenged in court: Such punishment may be legally enforceable under the law of a country it can be challenged in a court of law which is the final vital authority.

Problems faced by quasi-judicial authorities

• Understaffing of bodies: The maladies that these agencies suffer from are far graver than judicial set-ups, as they are staffed by revenue authorities who have several other functions. Usually, many of these offices are understaffed.
• More administrative and less judicial work: Their engagement with duties such as law and order, protocol, coordination and other administrative functions leaves them with much less time for court work.
• Limited access to records: Their access to court clerks and record keepers is limited. Computers and video recorders are not available in many of these courts. Only a few states such as Maharashtra, Madhya Pradesh and Rajasthan have electronic platforms for supporting activities such as the filing of cases, publication of cause lists and sending summons.
• Lack of knowledge about procedures: Several of the presiding officers lack proper knowledge of law and procedures which has landed many a civil servant in deep trouble in sensitive matters such as those related to arms licences.
• Data is unavailable: Data on the level of pendency or the speed of disposal is not compiled in many states. This is why there is scarcely any attempt to increase staff strength. There is hardly any public scrutiny say by the press or legislature.

How to improve the functioning of Quasi-judicial bodies?

• Priority of the government: The government should make the efficient functioning of these agencies a priority and clearly articulate its position on the issue.
• Collection of data is must: Detailed data on the functioning of these agencies must be collected and published from time to time at least annually.
• Digitization of judicial data: An electronic platform should be established to handle all ancillary work related to the administration of justice, such as filing of complaints, issue of summons, movement of case records between courts, issuing copies of the judgments and so on.
• Mandatory annual inspection: annual inspections of the subordinate courts should be made mandatory. This should be an important indicator for assessment by the superior authority.
• Study on functioning of this bodies: Interdisciplinary research on the functioning of these courts should be encouraged. This would identify the areas of improvement such as legal reforms or issue of clear guidelines.
• Time to time training of authorities: Regular training and orientation of the adjudicating authorities should be taken up from time to time.
• State performance index should be published: The state index of performance of these quasi-judicial courts be made and published.
• Online publication of awards by authorities: Important decisions, guidelines and directions could be compiled and published on the portal of the apex adjudicating forum such as the Board of Revenue.
• Rigorous induction training: More rigorous induction training of officials handling judicial work would help. The importance of judicial work should be instilled among the trainees and the skill and confidence in handling them should be developed.
• Procedural reforms: Procedural reforms such as minimizing adjournments, mandatory filing of written arguments and other such reforms proposed by bodies like the Law Commission for reform of the Civil Procedure Code should be adopted by these adjudicating bodies.
• Quasi-judicial bodies form the substantial institutions of judicial system. It is regularly side-lined when we talk about the judicial reforms. If we could make our quasi-judicial bodies function properly and efficiently, it will reduce the burden on High courts and Supreme court.

Q. Why the quasi-judicial bodies are underperforming in India? Which steps are needed to improve the functioning of quasi-judicial bodies?

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Indian Judiciary: A Call for Reforms

Mains level: Independent judiciary , issues of accountability and credibility of Higher courts

• The reach of India’s highest court is all-pervasive. The Supreme Court sits in final judgment over decisions not only of the high courts in the states, but also over a hundred tribunals, central and state, functioning throughout India. Hence the accountability of apex court crucial for judicial system in India.

Brief in other words: Significance of judiciary

• Decisions of Courts are binding on all: The law declared by the Supreme Court, its pronouncements on the constitutional validity of enacted law, including constitutional amendments, is binding on all other courts and authorities in the country (Article 141).
• Executive and legislature are under the scrutiny of Courts: There is virtually no area of legislative or executive activity which is beyond the court’s scrutiny.

Why accountability of higher judiciary is necessary?

• High courts are not ready to reform themselves: In the Salem Advocate Bar Association case, the justices had requested the high courts to implement the detailed blueprint on case management most of them have not.
• Limitations of supreme court to govern the High courts: Supreme court could not direct the high courts to do so because under our constitutional scheme the latter are autonomous constitutional bodies not subject to administrative directions of the Supreme Court.
• Self-accountability in administrations of courts: It is in the high courts that there are now left the largest number of roadblocks and delays; in their administrative functioning the high courts are answerable to no one but themselves. This often enables the Supreme Court to plead helplessness, hardly a good augury for integrated court-management.

How judiciary can maintain its credibility and accountability?

• Judiciary need to Preserve the independence: the judiciary as an institution needs to preserve its independence, and to do this it must strive to maintain the confidence of the public in the established courts.
• Judges should safeguard the judges: The independence of judges is best safeguarded by the judges themselves through institutions and organisations that the law empowers them to set up, to preserve the image of an incorruptible higher judiciary that would command the respect of all right-thinking people.
• Reform on case management: A bench of three justices of the Supreme Court, in a judgment delivered in August 2005, had drawn up a fine blueprint on case-management, on how to make recent amendments in our procedural laws work on the ground, and how to get more cases moving along: For instance, on three different tracks, fast track, normal track and slow track.
• Supreme court should directly administer High courts: It is time that the Supreme Court be entrusted with direct responsibility for the functioning of the high courts: Only then can the highest court be an effective apex court, only then can the Supreme Court be made answerable, as it should be, for judicial governance for the entire country.
• Public disclosure of income by judges: Judges must make annual financial disclosure statements, not privately to their respective chief justices, but publicly. It is done by justices of the Supreme Court.

How judiciary in USA maintain its credibility and accountability?

• Judicial council act: In the United States, under the Judicial Councils Act, 1980, task of judicial independence has been gladly undertaken by the judges. But regrettably, so far, there is no law in India to guide our judges only “guidelines”. There is a felt need for a law.
• Judges investigate the judges: The 1980 US Act confers powers on bodies comprised of judges to take such action against a federal judge “as is appropriate, short of removal.”
• A case study of America: Under this law, some time ago, a committee of fellow judges had investigated complaints against a federal district judge, John McBryde; the Judicial Council reprimanded him and suspended him from hearing new cases for a year.
• Corruption Investigation Not violating the judicial independence: McBryde challenged the decision. He argued that the 1980 law violated the judicial independence which the US Constitution had guaranteed to life-tenured federal judges; But a US Court of Appeals rejected all these pleas.
• Oversight of judges is not interference: It accepted the argument of the US Solicitor-General that judicial independence, protected by Article III of the US Constitution, was meant to insulate judges from interference from other branches of government and not from oversight by other judges.
• In India, in the past and in recent times, some things have gone wrong. And citizens need the reassurance of a system of judicial accountability a remedial mechanism which will protect the higher judiciary from some of its own members who have gone astray. Such reassurance can only be provided by enacting a law on the lines of the American model.

Q. What are the reasons for very less accountability in higher judiciary in India? How corruption in higher judiciary is addressed in USA?

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Centre constitutes 22nd Law Commission

Prelims level: Law Commission of India

The Centre has constituted the Law Commission of India by appointing former Karnataka High Court Chief Justice Ritu Raj Awasthi as its chairperson.

Law Commission of India

• It is an executive body established by an order of the Government of India. First law commission of independent India was established post the Independence in 1955
• Tenure: 3 Years
• Function: Advisory body to the Ministry of Law and Justice for “Legal Reforms in India”
• Recommendations: NOT binding
• First Law Commission was established during the British Raj in 1834 by the Charter Act of 1833
• Chairman: Macaulay; It recommended for the Codifications of the IPC, CrPC etc.

Its’ composition

The 22nd Law Commission will be constituted for a period of three years from the date of publication of its Order in the Official Gazette. It will consist of:

• Full-time Chairperson;
• Four full-time Members (including Member-Secretary)
• Secretary, Department of Legal Affairs as ex-officio Member;
• Secretary, Legislative Department as ex officio Member; and
• Not more than five part-time Members.

Terms of reference

• The Law Commission shall, on a reference made to it by the Central Government or suo-motu , undertake research in law and review of existing laws in India for making reforms therein and enacting new legislations.
• It shall also undertake studies and research for bringing reforms in the justice delivery systems for elimination of delay in procedures, speedy disposal of cases, reduction in cost of litigation etc.

Major reforms undertaken

• The First Law Commission under Macaulay suggested various enactments to the British Government, most of which were passed and enacted and are still in force in India.
• These include the Indian Penal Code (first submitted in 1837 but enacted in 1860 and still in force), Criminal Procedure Code (enacted in 1898, repealed and succeeded by the Criminal Procedure Code of 1973), etc.
• Thereafter three more Law Commissions were established which made a number of other recommendations the Indian Evidence Act (1872) and Indian Contract Act (1872), etc. being some of the significant ones.

Role in legal reforms

The Law Commission has been a key to law reform in India.

• Its role has been both advisory and critical of the government’s policies
• In a number of decisions, the Supreme Court has referred to the work done by the commission and followed its recommendations.
• The Commission seeks to simplify procedures to curb delays and improve standards of justice.
• It also strives to promote an accountable and citizen-friendly government that is transparent and ensures the people’s right to information.

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Mains level: Sealed Cover Jurisprudence

The Supreme Court has suggested a way out of routinely filing documents in sealed covers, especially in cases touching on national security.

What did the apex Court say?

• The court said the government could redact the sensitive portions and show the rest to the petitioners.
• This would address both the state’s concerns about “national security” and the “right to know” of petitioners.
• This practice appears to be unfavorable to the principles of transparency and accountability of the Indian justice system.
• It stands in contrast to the idea of an open court , where decisions can be subjected to public scrutiny.
• It is also said to enlarge the scope for arbitrariness in court decisions, as judges are supposed to lay down the reasoning for their decisions.
• Besides, it is argued that not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication .

Non-Transparent Collegium, Is there any Alternative?

Prelims level: Appointment of Judges

Mains level: NJAC,Collegium system and related issues.

• Once again, the Collegium of the Supreme Court of India is in the news, and once again for the wrong reasons. This time, it is because of the difficulty hat its five judges have in getting together for one meeting. Justice Chandrachud and Justice Nazeer withhold approval.Apparently, they do not object to the names but object to the procedure of circulation.

What is Collegium system?

• The Collegium of judges is the Indian Supreme Court’s invention.
• It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
• In effect, it is a system under which judges are appointed by an institution comprising judges.

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

What was the perception around independence of judiciary under threat.

• There was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.
• First Judges Case (1981): SC ruled that the “consultation” with the CJI in the matter of appointments must be full and effective. However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
• Second Judges Case (1993): Introduced the Collegium system, holding that “consultation” really meant “concurrence”. It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
• Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

What are the problems associated with collegium system?

• Emphasis on Seniority principle : Collegium system emphasizes excessively on seniority.
• No discussion on merit and objectivity: However, following the seniority convention offers a semblance of certainty and transparency, even though it takes away from selecting judges on other objective criteria such as merit and competence.
• Collegium changes its own decision: At times, the sanctity of Collegium’s own decisions no longer stands. Its own previous decision to appoint other persons to the Supreme Court was reversed, without any explanation or justification.
• Lack of procedure: Besides this, no one knows how judges are selected, and the appointments made reek of biases of self-selection and in-breeding.
• Widely known Nepotism: Sons and nephews of previous judges or senior lawyers tend to be popular choices for judicial roles.
• Lack of checks and balances: With its ad hoc informal consultations with other judges, which do not significantly investigate criteria such as work, standing integrity and so on, the Collegium remains outside the sphere of legitimate checks and balances.
• Opaque system: The lack of a written manual for functioning, the absence of selection criteria, the arbitrary reversal of decisions already taken, the selective publication of records of meetings.

Collegium system is blessing in disguise

• Protect independence of judiciary: The framers of the Constitution were alive to the likely erosion of judicial independence.
• On May 23, 1949, K T Shah stated that the Judiciary, which is the main bulwark of civil liberties, should be completely separate from and independent of the Executive, whether by direct or by indirect influence.
• NJAC Declared unconstitutional: In 2016, the Supreme Court struck down a constitutional amendment for creating the National Judicial Appointments Commission (NJAC).
• Distrust on political executive: The SC strongly disapproved of any role for the political executive in the final selection and appointment of judges. The SC said that “reciprocity and feelings of payback to the political executive” would be disastrous to the independence of the judiciary.

What is National Judicial Appointment Commission (NJAC)?

• What is NJAC?
• guarantee the independence of the system from inappropriate politicisation,
• Strengthen the quality of appointments,
• Enhances the fairness of the selection process,
• Promotes diversity in the composition of the judiciary, and
• Rebuilds public confidence in the system.
• NJAC was missed opportunity of reforms: The SC in its majority decision declared the NJAC unconstitutional and missed an opportunity to introduce important reformatory changes in the functioning of the judiciary.
• Judicial majority could have been discussed: According to the experts, the Supreme Court could have read down the law, and reorganised the NJAC to ensure that the judiciary retained majority control in its decisions. However, it did not amend the NJAC Act to have safeguards that would have made it constitutionally valid.
• No reforms in the collegium system: It also did not reform the Collegium in any way to address the various concerns voiced by one and all, including the Court itself, Instead, to the disappointment of all those who hoped for a strong, independent and transparent judiciary, it reverted to the old Collegium based appointments mechanism.
• Appointments to the top court seem to be the preserve of judges from the High Court with a handful of appointments from the Bar. Surely some nodding acknowledgement should be given to a specific provision made by the founding fathers in the Constitution. Judges appointing the judges is not a sustainable practice for future of judiciary.

Mains Question Q. What is NJAC? Why Collegium system is blessings in disguise? Explain the Collegium system of appointments.

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Live-streaming of Court: Definitely A Great Move

Mains level: Live streaming of courts proceedings

• On September 27, the Supreme Court enabled the live streaming of the hearing of cases.
• A full court of all Supreme Court judges under the leadership of Chief Justice U U Lalit took the unanimous decision to live-stream constitutional bench proceedings. Justice Chandrachud, the Chairperson of the Supreme Court’s E-committee and the driving force behind the live streaming initiative, began the hearing in his courtroom by announcing,”We are virtual”.
• The Court’s original decision by the bench of the then Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud on September 27, 2018, allowing the live telecast of important proceedings paved the way for this outcome. They had held that the live-streaming of court proceedings is in the public interest.
• Their vision had the full support of Chief Justices M V Ramana and U U Lalit.

What is Live-streaming of the court?

• Live streaming of court is that its proceedings that the people can watch on their mobiles and computers.All courtrooms function under camera glare.

Why Live-streaming of court is so important?

• Instilling Faith in the Judiciary: Enabling the ordinary people of the country to view, without any barrier, the workings of the highest court of the land will go a long way in instilling faith in the judiciary.
• Empowering the masses: It will enable the legal system to deliver on its promise of empowering the masses.Important step toward developing an informed citizenry.
• Respect to Rule of Law: The decision will enable people to understand the importance of the rule of law.It will help people appreciate that the judiciary is firm in protecting the rights of the impoverished, historically marginalised and disempowered sections of society. Potential to build a culture of respect for the rule of law.
• Living up the expectation of Constitution: Live-Streaming of Court proceedings is manifested in public interest. Public interest has always been preserved through the Constitution article 19 and 21.
• More transparency:  It will encourage the principle of open court and reduce dependence on second-hand views. It will effectuate the public’s right to know. This would inspire confidence in the functioning of the judiciary as an institution and help maintain the respect that it deserved as a co-equal organ of the state.
• Raise the quality and standards of the legal profession: Lawyers will be better prepared to appear before the court and they will be mindful of not making irresponsible remarks. An inclusive approach to public scrutiny could nudge and enable lawyers to take the justice delivery mechanisms more seriously than they may have in the past.
• Level playing field: It also creates a level playing ground for the younger members of the legal profession as their preparedness and intellectual prowess will be apparent to all.
• Academic help: Watching courtroom proceedings,actual arguments by lawyers and searching questions by judges  could inspire law students to take up this relatively neglected field.Law faculty members and legal researchers will be motivated to work on new areas of scholarship and research relating to the functioning of the judiciary and legal profession.
• Easy accessibility reducing the obstacle of distance: With live-streaming, the litigants will no longer have to come to Delhi to witness proceedings of their case which would be just a click away.
• Strengthening Democracy: Transparency and accessibility of the process of justice delivery will strengthen the country’s democracy

What are the Concerns around live-streaming of court?

• Contempt of court:  Video clips of proceedings from Indian courts are already on YouTube and other social media platforms with sensational titles and little context, such as “HIGH COURT super angry on army officer”.
• Disinformation and sensationalism:  There are fears that irresponsible or motivated use of content could spread disinformation among the public.
• Unnecessary activism:  With the advent of social media, every citizen became a potential journalist. Study shows that justices behave like politicians when given free television time, they act to maximize their individual exposure
• Internet connectivity: Internet connectivity issues and the need for a well-equipped space where lawyers can conduct their cases are some of the major problems requiring attention.
• Awareness and training: Judges, court staff and lawyers are not well-versed with digital technology and its benefits. The need of the hour is for them to be made aware of these and receive adequate training.

Which countries live-stream their court hearing ?

• Internationally,constitutional court proceedings are recorded in some form or the other.
• United States : The Supreme Court of the United States streams its hearings in audio format at the end of each week.The US top court publishes hearings on its website and Oyez of all cases. Oyez is a multimedia judicial archive of the Supreme Court of the United States’ proceedings.
• Brazil : The Supreme Federal Court of Brazil live streams hearings of all cases in video format on television.
• UK : The UK Supreme Court live streams hearings of all cases in video format on its website.
• Canada : The Canadian Supreme Court also live streams hearings of all its cases in video format on its website.
• Australia : The Australian Supreme Court streams hearings of its full-court cases on its website with a delay of about a day. Meanwhile, the High Court of Australia (HCA) does not live-stream its proceedings.
• China : In China,court proceedings are live-streamed from trial courts up to the Supreme People’s Court of China.
• The chief justices (past and present) and the judges of the Supreme Court deserve to be congratulated for enabling a path-breaking and democratic decision that allows the people of India to be able to watch the live proceedings of the Constitutional Bench.The distinguished jurist, Oliver Holmes,famously observed,“The great thing in the world is not so much where we stand, as in what direction we are moving.” The judges of the Supreme Court of India have ensured that we are indeed moving in the right direction.

Mains Question Q. Adoption of technology will radically change the field of law and transform the judiciary. What will be the role of courts, judges, politicians,media and citizens of the country regarding live streaming of court proceedings. Discuss

Live Streaming of SC proceedings: the rationale and the concerns

From September 27 onward, all proceedings of Supreme Court Constitution Benches will be live-streamed, a full court meeting of the top court has decided.

Background of the move

• History was made on August 26 (2022) when the proceedings from the Chief Justice’s Court in the Supreme Court (SC) were live streamed.
• In the ‘Swapnil Tripathi’ judgment , in September 2018, the SC had cleared the deck for live streaming of cases of national and constitutional importance.

Immediate triggers for live streaming

• They had agreed to hear a public interest litigation seeking live streaming of judicial proceedings on matters of constitutional and national importance.
• Prime considerations cited are:
• De-congestion of courts and
• Improving physical access to courts for litigants who have to otherwise travel long distances

Recommended by A-G

• The Supreme Court approved a set of guidelines suggested by the A-G, which included allowing transcripts and archiving the proceedings.
• However, the A-G suggested that the court must retain the power to withhold broadcasting , and to also NOT permit it in cases involving:
• Matrimonial matters,
• Matters involving interests of juveniles or the protection and safety of the private life of the young offenders,
• Matters of National security,
• To ensure that victims, witnesses or defendants can depose truthfully and without any fear.
• To protect confidential or sensitive information, including all matters relating to sexual assault and rape,
• Matters where publicity would be antithetical to the administration of justice, and
• Cases which may provoke sentiments and arouse passion and provoke enmity among communities.

Live streaming in HCs

• Following the SC’s decision, Gujarat High Court began live streaming its proceedings in July 2021.
• Currently, the Jharkhand, Karnataka, Madhya Pradesh, Orissa, and Patna High Courts live stream their proceedings.
• Allahabad High Court is learnt to be considering doing the same.

Global examples of live streaming

• United States of America: While the US Supreme Court has rejected pleas for broadcast of its proceedings, it has since 1955 allowed audio recording and transcripts of oral arguments.
• United Kingdom: In 2005, the law was amended to remove contempt of court charges for recording proceedings of the Supreme Court.

Why need live streaming of court?

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

Concerns around live streaming

• Contempt of court: Video clips of proceedings from Indian courts are already on YouTube and other social media platforms with sensational titles and little context, such as “HIGH COURT super angry on army officer”.
• Disinformation and sensationalism: There are fears that irresponsible or motivated use of content could spread disinformation among the public.
• Unnecessary activism: With the advent of social media, every citizen became a potential journalist. Study shows that justices behave like politicians when given free television time, they act to maximize their individual exposure.

Issues to judicial functioning

• Decency of questions: During hearings judges may not ask questions or make comments that could be perceived as unpopular.
• Triggers for oral observations: There is an increasing trend of oral observations of the court, which are not binding on parties replacing reasoned judgment and orders that are consequential.
• Dignity of court may be compromised: Similarly, lawyers, aware of their new audience, may choose to grandstand and play to the gallery, especially in a case they expect to lose.
• Selective broadcast: The solution may lie in carefully determining how the live streaming proceeds.
• Careful selection of cases: Not uploading archived stream on the SC website until it is legally/technologically possible to ensure that such videos cannot be spliced.
• Understanding public perception and sentiments: Other similar measures that reflect an understanding of how the public consumes (dis)information will ensure that live streaming enriches constitutionalism across the country.
• A hasty and wholesale introduction on the other hand is likely to land the SC right in the middle of the majoritarian and toxic information swamp that prevails in the country.

The hijab case and the doctrine of essentiality

Prelims level: particulars of doctrine of essentiality

Mains level: judicial reforms

• A two-judge Bench of the Supreme Court of India is presently hearing arguments on the correctness of a Karnataka High Court judgment that upheld the ban on the use of the hijab by students in Karnataka which raises question on doctrine of essentiality.

  What is ‘doctrine of essentiality’?

• A seven-judge Bench of the Supreme Court invented the doctrine of “essentiality” in the Shirur Mutt case in 1954. The court held that the term “religion” will cover all rituals and practices “integral” to a religion.

Importance doctrine of essentiality

• In the legal framework, the doctrine of essentiality is a doctrine that has evolved to protect the religious practices that are essential or integral and does not violate any fundamental right. India being a secular country has discrete religious beliefs and to deny any is to violate the freedom of religion.

Why hijab is not an essential practice?

• Wearing of hijab (head scarf) by Muslim women does not form a part of essential religious practices in Islamic faith and it is not protected under the right to freedom of religion guaranteed under Article 25 of the Constitution of India, the High Court of Karnataka declared on March 15 2022.

Is hijab essential part of Islam?

• The Qur’an instructs Muslim women and men to dress modestly, and for some, the hijab is worn by Muslim girls and women to maintain modesty and privacy from unrelated males. According to the Encyclopedia of Islam and Muslim World, modesty concerns both men’s and women’s “gaze, gait, garments, and genitalia”.

How do you identify essential religion practice?

• The Court observed that in order to determine whether or not a particular practice is an essential part of religion, the test must be whether the absence of the practice itself

Meaning of Article 26

• Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right.

Examples of the essential religious practices test

• While these issues are largely understood to be community-based, there are instances in which the court has applied the test to individual freedoms as well.
• In a 2004 ruling, the Supreme Court held that the Ananda Marga sect had no fundamental right to  perform the Tandava dance in public  streets since it did not constitute an essential religious practice of the sect.
• For example, in 2016, the Supreme Court upheld the discharge of an airman from the Indian Air Force for  keeping a beard .
• It distinguished the case of a Muslim airman from that of Sikhs who are allowed to keep a beard.
• In 2015, the Supreme Court restored the  Jain religious practice of Santhara/Sallekhan a (a ritualistic fast unto death) by staying an order of the Rajasthan HC.

What is the Supreme Court’s judgement on Doctrine of Essentiality?

• The doctrine of “essentiality” was invented by a seven-judge Bench of the Supreme Court in the ‘Shirur Mutt’ case in 1954.
• It is a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religion.
• The court held that the term “religion” will cover all rituals and practices “integral” to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion.
• Referring to the Ayodhya case, the Constitution Bench had ruled in 1994 that A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open.

How has the doctrine been used in subsequent years?

• The ‘essentiality doctrine’ of the Supreme Court has been criticised by several constitutional experts.
• Scholars of constitutional law have argued that the essentiality/integrality doctrine has tended to lead the court into an area that is beyond its competence, and given judges the power to decide purely religious questions.
• As a result, over the years, courts have been inconsistent on this question — in some cases they have relied on religious texts to determine essentiality.
• In others it relied on the empirical behaviour of followers, and in yet others, based on whether the practice existed at the time the religion originated.

Issues over the doctrine

• In the beginning, the court engaged with the question of whether untouchability, manifested in restrictions on entry into temples, was an “essential part of the Hindu religion”.
• After examining selected Hindu texts, it came to the conclusion that untouchability was not an essential Hindu practice.
• The idea of providing constitutional protection only to those elements of religion which the court considers “essential” is problematic as it assumes that one element or practice of religion is independent of other elements or practices.
• So, while the essentiality test privileges certain practices over others, it is, in fact, all practices taken together that constitute a religion.

How does essentiality square up against religious freedom?

• Freedom of religion was meant to guarantee freedom to practice one’s beliefs based on the concept of “inward association” of man with God.
• The apex court in ‘Ratilal Panachand Gandhi vs The State of Bombay and Ors’ (March 18, 1954) acknowledged that “every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience”.
• The framers of the Constitution wanted to give this autonomy to each individual. Scholars have argued that the essentiality test impinges on this autonomy.
• The apex court has itself emphasised autonomy and choice in its Privacy (2017), 377 (2018), and Adultery (2018) judgments.

Its effect on society

• Narrowing of safeguards to religious customs: It has allowed the Court to narrow the extent of safeguards available to religious customs by directly impinging on the autonomy of groups to decide for themselves what they deem valuable, violating, in the process, their right to ethical independence.
• Negated legislation that might otherwise enhance the cause of social justice : It has also negated legislation that might otherwise enhance the cause of social justice by holding that such laws cannot under any circumstances encroach on matters integral to the practice of a religion. For example, in 1962, the Court struck down a Bombay law that prohibited excommunications made by the Dai of the Dawoodi Bohra community when it held that the power to excommunicate is an essential facet of faith and that any measure aimed at social welfare cannot reform a religion out of its existence.
• A principle of anti-exclusion: Its application would require the Court to presume that a practice asserted by a religious group is, in fact, essential to the proponents of its faith. But regardless of such grounding, the Constitution will not offer protection to the practice if it excludes people on grounds of caste, gender, or other discriminatory criteria.
• For now, any Court hearing a matter touching upon a matter of faith has the unenviable task of acting not merely as an expert on law but also as an expert on religion.

Mains question Q. Every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience. Critically examine in context of doctrine of essentiality.

Regional Benches of Supreme Court

Prelims level: Article 130, Circuit Court

Mains level: Judicial accessibility

TN Chief Minister yet again reiterated the State’s request for establishing a Regional Bench of the Supreme Court in Chennai and allowing Tamil to be used in the Madras High Court as one of its official languages.

• Outgoing Vice President, M Venkaiah Naidu suggested bifurcation of the Supreme Court into four regional benches for speedy disposal of cases.
• However, the Supreme Court has maintained on previous occasions that there is no need for such benches outside Delhi.

Why the Supreme Court is located in New Delhi?

• Article 130 of the Constitution of India reads- The Supreme Court shall sit in Delhi or in such other place or places , as the Chief Justice of India may, with the approval of the President, from time to time, appoint.
• The law thus provides scope for setting up the Supreme Court in multiple places, subject to the concurrence of the CJI and the President.

Who can establish the SC benches outside New Delhi?

• The Supreme Court in Union of India v. S.P. Anand Verdict (2009) , held that the Article vests exclusive discretionary powers on the matter with the Chief Justice of India.
• It is an enabling provision and if the Chief Justice (after taking relevant factors into account) feels that the Court should sit elsewhere, s/he can seek the President’s approval for it.
• No authority can compel the Chief Justice of India to act in a particular way under the Article.

Voices for circuit benches

• The Law Commission in its 229th Report had suggested setting up a Constitution Bench of the Court in New Delhi and four other benches in different regions i.e., Northern region in Delhi, Southern region in Chennai/Hyderabad, Easter region in Kolkata and Western region in Mumbai.
• However, this idea did not find favour with the Judges of the Supreme Court.

Reasons for having Regional/Circuit Benches

• Access to Justice: Many litigants are discouraged to travel to Delhi from far away locations like south or northeast India.
• Geographical Constraints: A disproportionately high number of cases filed in the Supreme Court originated in High Courts closer to Delhi. Hence coming up with regional benches will remove this constraint.
• Huge pendency of cases: Increased workload on the Supreme Court and at present more than 65,000 cases are pending in the Supreme Court, and disposal of appeals takes many years.
• Reducing Cost of Justice: It is observed that besides travelling to New Delhi, engaging expensive Supreme Court counsel to pursue a case is beyond the means of most litigants.

Advantages of having circuit courts

• Promotes Article 39A: It has been pointed out that Article 39A says that the state shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity.
• Remove Geographical Constraints: It is high time we had more benches because in a country as vast as India the litigants have to travel long distances and spend a huge amount of money and energy.
• Upholding the spirit of the constitution: Setting up Benches outside Delhi would neither impair unity and integrity nor undermine the importance of the Supreme Court.

History and debates about ‘socialist’ and ‘secular’ in the Preamble

Prelims level: Preamble to the Constitution

The Supreme Court will hear a petition filed by former MP Dr Subramanian Swamy, seeking the removal of the words “Socialist” and “Secular” from the preamble of the Indian Constitution.

• The petitioners in two similar cases have argued that these words were never intended to be in the Constitution and that such insertion is beyond the amending power of the Parliament under Article 368.
• Similar petitions have been filed earlier too and given rise to debates around the preamble and the role it plays in the Constitution.

How did these words come?

• The two terms were inserted into the preamble as part of the 42nd Amendment of the Constitution in 1976 during the Emergency imposed by then PM Indira Gandhi.

What is the purpose of the Preamble?

• A preamble serves as an introduction to a document and contains its basic principles and goals.
• When the Indian Constitution was being drafted, the ideals behind the preamble were first laid down in the Objectives Resolution, adopted by the Constituent Assembly in 1947 .
• These ideals emerged out of the numerous debates that took place during the drafting of the Constitution.

Initially, the Preamble said:

“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

And to promote among them all

FRATERNITY assuring the dignity of the individual and the unity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”

Nature of the preamble

• The Constitution was the product of democratic deliberations and decided upon by the people of India themselves in the wake of freedom from colonial rule.
• The ideals mentioned here were at the core of the newly democratic nation.
• During the Constituent Assembly debates, many suggestions were put forth — including that God should be invoked in the preamble as in the Irish constitution, that Mahatma Gandhi’s name should be included, etc.

Is it a part of the Constitution?

• The question of whether the preamble is a part of the Constitution or simply an introduction has been deliberated upon by the highest court.
• This is because the meaning and weight of the objectives mentioned in it, such as equality of status and opportunity, remained unclear from the perspective of law.
• However, in its judgment in the famous LIC case of 1995, the Supreme Court said and the Preamble of the Constitution which is an integral part and scheme of the Constitution , affirming its position as part of the Constitution.
• Additionally, the violation of any principle mentioned in the preamble cannot be a reason to go to court, meaning the preamble is “ non-justiciable ”.
• However, judgments of courts can cite it as an additional factor in their reasoning, given that it constitutes the spirit of the Constitution .

How else has the preamble been debated earlier?

• In 2020 a ruling MP has moved a resolution in Rajya Sabha seeking to remove the word socialism from the preamble.
• It said, that the earlier party which ruled the country for seven decades has changed its direction from being socialist to welfare to neo-liberalism.
• Its new liberal policies adopted in the 1990s have negated its own earlier positions.
• Earlier in 2015, the Ministry of Information and Broadcasting used an image of the preamble of the Indian Constitution without the words “socialist” and “secular”, leading to some criticism.

What is the right-wing narrative?

• These words were added during the Emergency. Now what is the harm if there is a debate on it?
• In 2008, the Supreme Court rejected a plea demanding the removal of ‘socialist’.
• The apex court asked-Why do you take socialism in a narrow sense defined by Communists?
• In a broader sense, it means welfare measures for the citizens. It is a facet of democracy, said the Court.
• It hasn’t got any definite meaning. It gets different meanings in different times.

Under what circumstances was the preamble amended?

• Over her years in government, Indira Gandhi had attempted to cement her approval among the masses on the basis of a socialist and pro-poor image with slogans such as “garibi hatao” (Eradicate poverty).
• The 42nd Amendment to the Constitution, passed in 1976 when the Emergency was in place, replaced the words “sovereign democratic republic” with “sovereign socialist secular democratic republic”.
• It also changed “unity of the nation” to “unity and integrity of the nation”.

Were ‘Secular’ and ‘Socialist’ debated before Independence?

• During the debates in the Constituent Assembly, members such as K T Shah and Brajeshwar Prasad had raised the demand to add these words to the preamble.
• However, Dr B R Ambedkar argued: What should be the policy of the State, how the Society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances.
• It cannot be laid down in the Constitution itself because that is destroying democracy altogether.

Is it inclusive of the Constitution?

• Indeed, many principles affirming secularism and socialism were contained in the Constitution originally, such as in the Directive Principles of State Policy that is meant to guide the government in its actions.
• Some examples are provisions related to the “equitable distribution of material resources of the community for the common good”, and protecting the rights of workers.
• Similarly, in the fundamental rights that allow the freedom to profess and propagate one’s religion, as well as in the government policies that recognize religious occasions across communities, an Indian version of secularism is followed.
• Unlike western secularism which strictly separates the state and religion, the Indian state has over the years acknowledged and involved itself in matters related to all religions.

Jurisprudence of Bail in India

Mains level: jurisprudence of bail

• Regular bail: A regular bail is generally granted to a person who has been arrested or is in police custody. A bail application can be filed for the regular bail under section 437 and 439 of CrPC.
• Section 436 of the Code of Criminal Procedure, 1973, lays down that a person accused of a bailable offense under IPC can be granted bail if:

What is the recent ruling about?

• The Supreme Court underlined that arrest is a draconian measure that needs to be used sparingly.
• The ruling is essentially a reiteration of several crucial principles of criminal procedure.

And what is the UK law?

• The Bail Act of the United Kingdom, 1976, prescribes the procedure for granting bail.
• A key feature is that one of the aims of the legislation is “ reducing the size of the inmate population ”.
• The law also has provisions for ensuring legal aid for defendants .
• The Act recognises a “general right” to be granted bail .

What has the Supreme Court held on reforms?

The court’s ruling is in the form of guidelines, and it also draws the line on certain procedural issues for the police and judiciary:

• Separate law on Bail: The court underlined that the CrPC, despite amendments since Independence, largely retains its original structure as drafted by a colonial power over its subjects.
• Uniform exercise of discretionary powers: It also highlighted that magistrates do not necessarily
• Avoid indiscriminate arrests: The SC also directed all state governments and Union Territories to facilitate standing orders to comply with the orders and avoid indiscriminate arrests.

Lifetime perks for former CJIs, SC Judges

Prelims level: Perks and privileges to Judges

The Centre amended the Supreme Court Judges Rules the second time in a week to provide chauffeurs (car driver) and domestic help for retired Chief Justices of India and Supreme Court judges for their entire lifetime.

Perks for Retired CJs

• Retired CJIs would also get secretarial assistants.
• The staff would be paid the salary and allowances of regular employees of the Supreme Court.
• The first series of amendments in the Rules on August 23 had allowed retired Chief Justices of India and Supreme Court judges chauffeurs, secretarial assistants and security cover only for a year.
• There was no mention of “domestic help”, who would be an employee in the level of junior court assistant.
• The judiciary had recently raised concerns about attacks on judges.
• Hence the benefit of 24-hour security cover has been extended to five years for retired Chief Justices and three years for retired judges of the Supreme Court.
• Besides, former CJIs and retired judges of the top court can get their monthly mobile phone and Internet bills reimbursed to the extent of ₹4,200.
• A retired CJI is also entitled to a rent-free Type VII accommodation, other than the designated official residence, in New Delhi for six months immediately after retirement.

Why such move?

• The government is one of the biggest litigants in the Supreme Court.
• There has been public debate on whether post-retirement benefits dangled by the government could influence the judicial work of serving judges.

Latest guidelines on Arrests and Bail Orders

Prelims level: Provision for Bail

On July 11, a division bench of the Supreme Court of India in Satender Kumar Antil vs CBI laid down fresh guidelines on arrests in order to have strict compliance with the provisions of Section 41 and 41A of the Code of Criminal Procedure, 1973.

• In recent times, there have been several controversies regarding the arrest and subsequent bail of accused persons.
• On July 16, even the Chief Justice of India (CJI) cautioned against “hasty and indiscriminate arrests” .
• He further commented on the delay in bails and the plight of undertrial prisoners .

What are the guidelines?

• In the case of Arnesh Kumar (2014), the apex Court had rightly observed that “ arrest brings humiliation, curtails freedom and cast scars forever ”.
• With regard to the Satender Kumar Antil case, the Court has issued specific directions and has also called for a compliance report.
• The Court said that the investigating agencies and their officers are d uty-bound to comply with the mandate of Section 41 and 41A and the directions issued.

How is a person arrested?

• Arrest in its simplest form is defined as, “when one is taken and restrained from his liberty”.
• The police has wide powers to arrest under the Code of Criminal Procedure, 1973.
• In the Joginder Kumar (1994) verdict, the Court had stated that “arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person”.

What are Sections 41 and 41A of the Code of Criminal Procedure?

• Section 41 provides for the circumstances in which arrest can be made by the police without a warrant and mandates for reasons to be recorded in writing for every arrest and non-arrest.
• Section 41A provides for the requirement of a notice to be sent by the investigating agencies before making an arrest in certain conditions prescribed by the Code.

What did the court comment regarding these articles?

• The Court stated that any dereliction on the part of the agencies has to be brought to the notice of the higher authorities by the court followed by appropriate action.
• The Bench further said that the courts will have to satisfy themselves on the compliance of Section 41 and 41A.
• Any non-compliance would entitle the accused for a grant of bail.

What are the guidelines with respect to bail?

Regarding bail, the Court has made a specific observation in the form of an obiter that the:

• GoI may consider the introduction of a separate enactment , i.e. a Bail Act , so as to streamline the grant of bails.
• It is clearly stated that there need not be any insistence on a bail application while considering the application under Sections 88, 170, 204 and 209 of the Code.
• The Court said that there needs to be a strict compliance of the mandate laid down in the judgment of this court in Siddharth” (Siddharth vs State of U.P., 2021).
• It is a clear direction of the Court that bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise — the exception being an intervening application.
• The Court also said that applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application.
• The High Courts have been directed by the apex court to identify undertrial prisoners who cannot comply with bail conditions.
• The State and Central governments will have to comply with the directions issued by the Court from time to time with respect to the constitution of special courts.
• The High Court in consultation with the State governments will have to undertake an exercise on the need for special courts.
• The vacancies should be filled up in the position of Presiding Officers of the special courts, expeditiously.
• The CJI has also raised the issue of vacant positions and infrastructural requirements in the judiciary.

Bail Law and Supreme Court call for Reform

The Supreme Court underlined the pressing need for reform in the law related to bail and called on the government to consider framing a special legislation on the lines of the law in the United Kingdom.

Parliamentary Committee opposes Mediation Bill

Prelims level: Mediation Bill

The Parliamentary Standing Committee on Law and Justice has recommended substantial changes to the Mediation Bill.

Mediation Bill, 2021

• Mediation is a voluntary dispute resolution process.
• It is an informal, confidential, flexible, and non-binding process in which an impartial person called a “mediator” helps the parties to understand the interests of everyone involved, and their practical and legal choices.
• The Bill requires persons to try to settle civil or commercial disputes through mediation before approaching any court or tribunal.
• Agreements resulting from mediation will be binding and enforceable in the same manner as court judgments.

Key features of the Bill

(1) pre-litigation mediation.

• Parties must attempt to settle civil or commercial disputes by mediation before approaching any court or certain tribunals.
• Even if they fail to reach a settlement through pre-litigation mediation, the court or tribunal may at any stage refer the parties to mediation if they request for the same.

(2) Disputes not fit for mediation

• The Bill contains a list of disputes which are not fit for mediation.
• These include disputes: (i) relating to claims against minors or persons of unsound mind, (ii) involving criminal prosecution, and (iii) affecting the rights of third parties.
• The central government may amend this list.
• It will apply to mediations conducted in India: (i) involving only domestic parties, (ii) involving at least one foreign party and relating to a commercial dispute (i.e., international mediation).

 (3) Mediation process

• Mediation proceedings will be confidential, and must be completed within 180 days (may be extended by 180 days by the parties).
• A party may withdraw from mediation after two sessions.
• Court annexed mediation must be conducted as per the rules framed by the Supreme Court or High Courts.

(4) Mediators

• Mediators may be appointed by: (i) the parties by agreement, or (ii) a mediation service provider (an institution administering mediation).
• They must disclose any conflict of interest that may raise doubts on their independence.
• Parties may then choose to replace the mediator.

(5) Mediation Council of India

• The central government will establish the Mediation Council of India.
• The Council will consist of a chairperson, two full-time members (with experience in mediation or ADR), three ex-officio members (including the Law Secretary, and the Expenditure Secretary), and a part-time member from an industry body.
• Functions of the Council include: (i) registration of mediators, and (ii) recognising mediation service providers and mediation institutes (which train, educate, and certify mediators).

(6) Mediated settlement agreement

• Agreements resulting from mediation (other than community mediation) will be final, binding, and enforceable in the same manner as court judgments.
• They may be challenged on grounds of: (i) fraud, (ii) corruption, (iii) impersonation, or (iv) relating to disputes not fit for mediation.

(7) Community mediation

• This may be attempted to resolve disputes likely to affect the peace and harmony amongst residents of a locality.
• It will be conducted by a panel of three mediators (may include persons of standing in the community, and representatives of resident welfare associations).

Issues highlighted by the Parliamentary Committee

• Compulsion: The panel cautioned against making compulsory pre-litigation mediation.
• Scope for Delay: Making pre-litigation mediation mandatory may actually result in delaying of cases.
• Judicial intervention: The provision to give higher courts the power to frame rules for mediation was also questioned.
• Narrower scope: The members questioned the non-applicability of the provisions to non-commercial disputes involving the Government and its agencies.
• No bar of experienced professionals: The MCI, established to regulate the profession of mediators, may not have representation of practising mediators with adequate experience.
• Prior approval from centre: The MCI requires prior approval from the central government before issuing regulations related to its essential functions.  It is not clear why such prior approval is required.
• Domestic conduct of mediation: The Bill applies to international mediations only if they are conducted in India and not outside.

Why need a law on Mediation?

• Fast: Because the amount of time necessary for the parties and therefore the Mediator to organize for the mediation is significantly way less as that needed for trial or arbitration, a mediation of dispute can occur relatively early.
• Flexible: There exists no set formula for mediation. Different Mediators employ different styles. Procedures are often modified to satisfy the requirements of a specific case.
• Cost Efficient: Because mediation generally requires less preparation, is very less formal than trial or arbitration, and may occur at an early stage of the dispute.
• Brings Parties Together: Parties can save and sometimes rebuild their relationship like during a family dispute or commercial dispute.
• Convenient: The parties can control the time, location, and duration of the proceedings to large extent. Scheduling isn’t subject to the convenience of courts.
• Creative: Resolutions that aren’t possible through arbitration or judicial determination could also be achieved.
• Confidential: What’s said during mediation are often kept confidential. Parties wishing to avoid the glare of publicity can use mediation to stay their disputes low-key and personal
• Control: The parties control the result of the mediation and either party has the advantage of terminating the mediation, if it’s felt that it’s not within the interest of the said party.

In news: Pardoning Power of the President

Prelims level: Pardoning Powers of president and governor

The Supreme Court has held that the Centre was “bound to advise” the President to remit the life sentence of gangster Abu Salem in the 1993 Mumbai blasts case on his completion of 25 years of his jail term.

What did the SC say?

• On the appellant completing 25 years of his sentence, the Central government is bound to advise the President for the exercise of his powers under Article 72 of the Constitution.
• The Centre could itself consider remission on the completion of 25 years’ sentence in terms of Sections 432 and 433 of the Code of Criminal Procedure.

What is Pardon?

• A pardon is a government/executive decision to allow a person to be absolved of guilt for an alleged crime or other legal offense as if the act never occurred.

Why need Pardon?

• Pardons can be granted when individuals are deemed to have demonstrated that they have “paid their debt to society”, or are otherwise considered to be deserving of them.
• Pardons are sometimes offered to persons who were either wrongfully convicted or who claim that they were wrongfully convicted.
• Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone that is seen as wrongly convicted.

What is the Article 72?

• Article 72 says that the president shall have the power to grant pardons , reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offense.
• There are five different types of pardoning:
• Pardon : means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
• Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
• Reprieve: means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
• Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
• Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty year rigorous imprisonment to ten years.

Cases as specified by art. 72

In all cases where the punishment or sentence:

• is by a court-martial
• is for an offence against any law relating to a matter to which the executive power of the Union extends
• is a sentence of death

Nature of the Pardoning Power

• The pardoning power of the president is not absolute . It is governed by the advice of the Council of Ministers.
• This has not been discussed by the constitution but is the practical truth .
• Further, the constitution does not provide for any mechanism to question the legality of decisions of presidents or governors exercising mercy jurisdiction.
• But the SC in Epuru Sudhakar Case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.
• The court has earlier held that court has retained the power of judicial review even on a matter which has been vested by the Constitution solely in the Executive.

Some traditions

• It is important to note that India has a unitary legal system and there is no separate body of state law.
• All crimes are crimes against the Union of India.
• Therefore, a convention has developed that the governor’s powers are exercised for only minor offenses.
• While requests for pardons and reprieves for major offenses and offenses committed in the UTs are deferred to the President.

Try this PYQ: Who/Which of the following is the custodian of the Constitution of India? (a) The President of India (b) The Prime Minister of India (c) The Lok Sabha Secretariat (d) The Supreme Court of India   Post your answers here. 8 Please leave a feedback on this x

Judicial Reforms in India

Prelims level: Article 124

Mains level: Paper 2- Judicial reforms

Following are the reforms needed in the various aspects of the higher judiciary

Removing the disparity between retirement ages of HC and SC judges

• High Court judges now retire at 62 and Supreme Court judges at 65.
• It is high time that we did away with the disparity between the retirement ages of High Court and Supreme Court judges.
• There is no good reason for this difference .
• Intense pressure and competition: The obvious negative fallout of a differential retirement age simply is intense pressure and competition to make it to the top court and thus get three more years.
• If this is done away with, several judges of mettle would prefer to be Chief Justices and senior judges in the High Courts exercising wide power of influence rather than being a junior judge on a Bench of the Supreme Court.
• There is good work to be done in the High Courts, and we need good men there.

Create a cadre of public service for retired judges

• SeveralSupreme Court judges focus on arbitrations after retirement.
• A minority of judges devote themselves to public service; sadly, this is a very small minority.
• Another lot are appointed to various constitutional posts and tribunals and commissions.
• It would be worthwhile reform to create a cadre of public service for retired judges and from this pool make appointments to the constitutional and statutory posts and special assignments.
• Such judges should receive the full pay and the facilities of a judge of the Supreme Court for life.
• We should have a culture of public service for senior judges , and those who do not fit in such culture should not be a part of senior ranks.

Reform in the process of appointment of Chief Justice of India

• No constitutional basis: It is generally assumed that the seniormost judge of the Supreme Court should be the Chief Justice of India.
• The Constitution mandates no such thing.
• Article 124 merely states that the President will appoint every judge of the Supreme Court, and this includes the Chief Justice, and each of these judges shall hold office until they attain the age of 65 years.
• The requirement about appointing the seniormost judge to be the CJI was devised in the Second Judges case (1993) and the consequent Memorandum of Procedure which is an usurpation of the President’s power.
• There is no good reason why any one particular person should have a vested interest in the top job, and we are better served by eliminating such expectation.
• Let all serve equally under the constitutional throne for the entire length of their tenure.

But who then shall be the CJI?

• As per the Constitution the judges of the High Court, senior advocates and distinguished jurists are eligible for the appointment as the judge of the Supreme Court.
• Chief Justice of HC: When a serving CJI retires, his successor should be the best reputed Chief Justice of a High Court who has proved himself worthy both in judicial office as well as administrative leadership and has those qualities of heart and head which mark a good leader.
• The same process is followed in the appointment of the Chief Justice of the United States Supreme Court.
• Security of tenure: The appointee should have a clear three-year term.
• He should not function as the primus super pares  — calling the shots and having their unfettered way.
• He should instead function in a true collegiate manner, especially in regard to the roster of allotment of cases, especially the sensitive ones, and appointments to the Supreme Court and High Courts and other important matters of judicial and administrative importance.

Though there are several issues that need reforms in the higher judiciary, the above reforms can serve as the precursor to the other reforms to come.

Back in news: Article 142 of the Constitution

Prelims level: Article 142

The Supreme Court has crafted a victory for a disabled student by using its special powers under Article 142 to declare the successful completion of her Master of Designs course from the Indian Institute of Technology (IIT).

Important instances when Article 142 was invoked

• Bhopal Gas tragedy case: The SC awarded a compensation of $470 million to the victims and held that “prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142.”
• Babri Masjid demolition case: The Supreme Court ordered framing of a scheme by the Centre for formation of trust to construct Ram Mandir at the Masjid demolition site in Ayodhya.
• Liquor sale ban case: The Supreme Court banned liquor shops within a distance of 500 metres from National as well as State highways in order to prevent drunken driving.
• Ex-PM Assassin case: In the case of Perarivalan, the Supreme Court invoked Article 142(1) under which it was empowered to pass any order necessary to do complete justice in any matter pending before it.

Try this PYQ from CSP 2019: Q.With reference to the Constitution of India, prohibitions or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on the constitutional powers under Article 142. It could mean which one of the following?   (a) The decisions taken by the Election Commission of India while discharging its duties cannot be challenged in any court of law. (b) The Supreme Court of India is not constrained in the exercise of its powers by laws made by the Parliament. (c) In the event of grave financial crisis in the country, the President of India can declare Financial Emergency without the counsel from the Cabinet. (d) State Legislatures cannot make laws on certain matters without the concurrence of Union Legislature.   Post your answers here. 11 Please leave a feedback on this x

Issues with Frivolous PIL Petitions

Prelims level: PIL

Mains level: Issues with PIL

A Public Interest Litigation (PIL) petitioner in the Supreme Court barely escaped having to pay ₹18 lakh for indulging in a “luxury litigation”.

• A Supreme Court Bench of Justice B.R. Gavai and Hima Kohli initially asked the litigant to pay ₹18 lakh, that is, ₹1 lakh for every one of the 18 minutes the case took up.
• However, the court later, in its order, slashed the amount to ₹2 lakh on the request of the litigant’s counsel.

Why did the apex court got disgusted?

• The bench criticized the highly derogatory practice of filing frivolous petitions encroaching valuable judicial time.
• This time can otherwise be utilised for addressing genuine concerns.

What is Public Interest Litigation (PIL)?

• PIL refers to litigation undertaken to secure public interest and demonstrates the availability of justice to socially-disadvantaged parties.
• It was introduced by Justice P. N. Bhagwati in 1979 .
• It is the chief instrument through which judicial activism has flourished in India.
• It is suited to the principles enshrined in Article 39A[a] of the Constitution to protect and deliver prompt social justice with the help of law.

How was it introduced?

• PIL is a relaxation on the traditional rule of locus standi.
• Before 1980s the judiciary and the Supreme Court of India entertained litigation only from parties affected directly or indirectly by the defendant.
• It heard and decided cases only under its original and appellate jurisdictions.
• However, the Supreme Court began permitting cases on the grounds of PIL, which means that even people who are not directly involved in the case may bring matters of public interest to the court.
• It is the court’s privilege to entertain the application for the PIL.

Filing a PIL

Any citizen can file a public case by filing a petition:

• Under Art 32 of the Indian Constitution, in the Supreme Court
• Under Art 226 of the Indian Constitution, in the High Court
• Under 133 of the Criminal Procedure Code , in a Magistrate’s Court

Parties against whom PILs can be filed

• A PIL may be filed against state government, central government, municipal authority, private party.
• Also, private person may be included in PIL as ‘Respondent’, after concerned of state authority.
• g. a private factory in Mumbai which is causing pollution then PIL can be filed against the government of Mumbai, state pollution central board including that private factory of Mumbai.

Importance of PIL

• PIL gives a wider description to the fundamental rights to equality, life and personality, which is guaranteed under part III of the Constitution of India.
• It also functions as an effective instrument for changes in the society or social welfare .
• Through PIL, any public or person can seek remedy on behalf of the oppressed class by introducing a PIL.

Issues with PIL

• Off late, PILs have become a tool for publicity.
• People file frivolous petitions which result in the wastage of time of the courts.
• People have used them with a political agenda as well.
• They unnecessarily burden the judiciary.
• Even if the petition is eventually dismissed, the courts spend time and effort on them before dismissing them.

How do frivolous petitions waste time?

• At present, only judges have the power to dismiss a petition.
• The Registry of the SC or HC only ensures that the technical requirements of filing a petition are fulfilled.
• As a result of which petitions are admitted to the court irrespective of the merits of the case.

Way forward: Preventing frivolous PILs

The Supreme Court had issued eight directions in its Balwant Singh Chaufal Judgment to help constitutional courts separate genuine PIL petitions from the barmy ones:

• It had asked every High Court to frame its own rules to encourage bona fide PIL petitions and curb the motivated ones
• Verifying the credentials of the petitioner before entertaining the plea
• Checking the correctness of the contents
• Ensuring the petition involves issues of “larger public interest, gravity and urgency” which requires priority
• Ensuring there is no personal gain, or oblique motive behind the PIL
• Ensuring that it is aimed at redressal of genuine public harm or public injury
• PIL petitions have had a beneficial effect on the Indian jurisprudence and has alleviated the conditions of the citizens in general.
• Such petitions bring justice to people who are handicapped by ignorance, indigence, illiteracy.

Digitization of Judiciary

Prelims level: Lok Adalat

Mains level: Paper 2- Use of technology by judiciary

The Indian judiciary has increasingly started using technology and the change is reflected in the legal profession in general as well.

Increasing use of digital technology in the judiciary

• With the digitisation of judicial records and the establishment of e-courts, significant developments had taken place in 2020.
• Use of technology to better utilise potential: It is imperative that the use of digital technology be discussed to better utilise its potential, particularly in terms of digitisation of court records, e-filing of cases and their virtual hearing , live streaming of court proceedings.
• In India, e-governance in the field of administration of justice began in the late 1990s, but it accelerated after the enactment of the Information and Technology Act, 2000.
• In the year of 2006, e-courts were launched as a part of the National e-Governance Plan (NEGP).

Digitisation of case files

• When he was the Chief Justice of Allahabad HC, Justice D Y Chandrachud had conceptualised and initiated the project to digitise approximately one crore case files in one year.
• Saving of space and preservation of old documents : This was necessary as not only was a large space required to store so many files, it was also becoming difficult to manually preserve the decades-old documents.
• Traceability: Another purpose was to ensure that these files are traceable electronically as and when required.
• It has also been observed that cases are adjourned simply because affidavits filed several years ago were not restored with the record or were not traceable.
• Once the documents are digitised and e-filed by counsels, at least the cases would not get adjourned by the courts on this account.
• Reducing the risk of missing court records: In State of Uttar Pradesh v. Abhay Raj Singh, it was held by the Supreme Court that if court records go missing and re-construction is not possible, the courts are bound to set aside the conviction.
• Saving of time : With digitisation, it will take much less time for the lower courts to transmit the records as and when called for.
• The lawyers benefit because they or their staff are no longer required to visit the reporting sections or other sections of the court to know about the status of their cases.
• This has been sought to be implemented by the e-Committee of the Supreme Court by issuing directions to ensure that e-filing of cases/petitions by state governments in all matters be made mandatory from January 1, 2022.

Scope for virtual hearing in certain cases

• Cases related to matrimonial issues and domestic violence bounced cheques, motor accident compensation referred to mediation centres and lok adalats could be included in the list of cases fit for disposal through the virtual hearing.
• The hearing of matrimonial cases through video-conferencing was approved by the Supreme Court in the matter of Krishna Veni Nagam v Harish Nagam (2017).
• The direction was short-lived and a coordinate bench of the Supreme Court in the case of Santhini v Vijaya Venkatesh (2018) referred the matter for reconsideration before a larger bench.
• Virtual hearings cannot be a substitute for physical court hearings in all cases.
• However, in appropriate cases and certain categories of cases as identified by the court administration in consultation with the members of the Bar, virtual hearing should be made mandatory.

Live streaming of cases

• In 2018, the Supreme Court allowed the live-streaming of cases of constitutional and national importance on the basis of the judgment in Swapnil Tripathi.
• Step towards transparency: The livestreaming of court proceedings is a step towards ensuring transparency and openness.
• While several reservations were expressed against it, the Gujarat HC in July 2021 became the first court in the country to livestream its proceedings.
• Its example was followed by other HCs like Karnataka, Odisha, Madhya Pradesh and Patna.
• Internet connectivity issues and the need for a well-equipped space where lawyers can conduct their cases are some of the major problems requiring attention.
• Political will and the support of judges and lawyers are also necessary.
• Awareness and training: Judges, court staff and lawyers are not well-versed with digital technology and its benefits.
• The need of the hour is for them to be made aware of these and receive adequate training.

Adoption of technology will bring drastic changes in the field of law and will transform the Court system.

India’s judiciary and the slackening cog of trust

Prelims level: Not much

Mains level: Paper 2- Judicial corruption and pendency

Departures from substantive and procedural justice need deep scrutiny as the fallout could severely imperil governance.

Judicial corruption in India in lower judiciary

• According to Transparency International (TI 2011), 45% of people who had come in contact with the judiciary between July 2009 and July 2010 had paid a bribe to the judiciary.
• The most common reason for paying the bribes was to “speed things up”.
• The Asian Human Rights Commission (AHRC) (April 2013) estimates that for every ₹2 in official court fees, at least ₹ 1,000 is spent in bribes in bringing a petition to the court.
• Freedom House’s ‘Freedom in the World 2016 report for India’ states that “the lower levels of the judiciary in particular have been rife with corruption” (Freedom House 2016).
• Allegations of corruption against High Court judges abound.
• Worse, there are glaring examples of anti-Muslim bias, often followed by extra-judicial killings by the police.
• Anti-Muslim bias alone may not result in erosion of trust but if combined with unprovoked and brutal violence against them (e.g., lynching of innocent cattle traders) is bound to.

Forms of judicial corruption

• Pressure and bribery: Judicial corruption takes two forms: political interference in the judicial process by the legislative or executive branch, and bribery.
• Despite the accumulation of evidence on corrupt practices, the pressure to rule in favour of political interests remains intense.
• Court officials coax bribes for free services, and lawyers charge additional “fees” to expedite or delay cases.

Case pendency

• According to the National Judicial Data Grid, as of April 12, 2017, there are 24,186,566 pending cases in India’s district courts, of which 2,317,448 (9.58%) have been pending for over 10 years, and 3,975,717 (16.44%) have been pending for between five and 10 years.
• Vacancies: As of December 31, 2015, there were 4,432 vacancies in the posts of [subordinate court] judicial officers, representing about 22% of the sanctioned strength.
• In the case of the High Courts, 458 of the 1,079 posts, representing 42% of the sanctioned strength, were vacant as of June 2016.
• Thus, severe backlogging and understaffing persisted, as also archaic and complex procedures of delivery of justice.

Understanding the substantive and procedural justice

• Substantive justice is associated with whether the statutes, case law and unwritten legal principles are morally justified e.g., freedom to pursue any religion,
• Procedural justice is associated with fair and impartial decision procedures.
• Outdated laws: Many outdated/dysfunctional laws or statutes have not been repealed because of the tardiness of legal reform both at the Union and State government levels.
• Worse, there have been blatant violations of constitutional provisions.
• The Citizenship (Amendment) Act (December 2019) provides citizenship to — except Muslims — Hindus, Buddhists, Sikhs, Jains, Parsis and Christians who came to India from Pakistan, Bangladesh and Afghanistan on or before December 31, 2014.
• But this goes against secularism and is thus a violation of substantive justice.
• Alongside procedural delays , endemic corruption and mounting shares of under-trial inmates with durations of three to five years point to stark failures of procedural justice and to some extent of substantive justice.

Exercise of extra-constitutional authority by the central and State governments, weakening of accountability mechanisms, widespread corruption in the lower judiciary and the police, with likely collusion between them, the perverted beliefs of the latter towards Muslims, other minorities and lower caste Hindus, a proclivity to deliver instant justice, extra-judicial killings, filing FIRs against innocent victims of mob lynching have left deep scars on the national psyche.

Governments ignoring court orders: CJI

Prelims level: Contempt of Court

The CJI pointed to how courts had to deal with the new problem of “contempt petitions” triggered by the “deliberate inaction” of governments that chose to ignore judgments and orders.

What did the CJI say?

• The contempt petitions are a new category of burden on the courts, which is a direct result of the defiance by the governments.
• Such actions show sheer defiance of governments towards judicial pronouncements.
• There is visible inclination to pass off the responsibility of decision-making to courts.
• The legislature’s work show ambiguity, lack of foresight and public consultation before making laws have led to docket explosion.

What is Contempt of the Court?

• Contempt of court is the offense of being disobedient to or disrespectful toward a court of law and its officers in the form of behaviour that opposes or defies the authority, justice, and dignity of the court.
• There are broadly two categories of contempt: be ing disrespectful to legal authorities in the courtroom , or wilfully failing to obey a court order .

How did the concept came into being?

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

What is the statutory basis for contempt of court?

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

What are the kinds of contempt of court?

The law codifying contempt classifies it as civil and criminal .

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

What does not account to contempt?

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

Is truth a defence against a contempt charge?

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

FASTER digital platform for Judiciary

Prelims level: FASTER Platform, SUPACE

Mains level: Speedy disposal of cases

‘FASTER’, an abbreviation of ‘Fast and Secured Transmission of Electronic Records’, a digital platform was formally launched by Chief Justice of India (CJI) N.V. Ramana.

What is FASTER?

• The FASTER system proposes transmission of e-authenticated copies of the interim orders, stay orders, bail orders and record of proceedings to the duty-holders for compliance and due execution, through a secured electronic communication channel.
• These orders may vary from stay of execution of a person to freeze on the demolition of a slum to bail orders for undertrial prisoners.
• The idea stemmed from a case reported about several prisoners in the Agra Jail forced to remain behind bars for three days after the hard copies of the order had not reached the prison officials.

Benefits offered

• FASTER would aid the cause of quick and effortless justice.
• The timely delivery of the court’s orders to the authorities would also prevent unnecessary arrests and custody of people who have already been granted anticipatory bail.
• For smooth transmission of court’s orders and effective implementation of Article 21, Right to Life, such a system was the need of the hour.

[RSTV Archive] Judiciary & Artificial Intelligence

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SC averse to ‘Sealed Cover Jurisprudence’

Two separate Benches of the Supreme Court tore into the “sealed cover jurisprudence” practiced by the government in courts.

• The Supreme Court has allowed the Malayalam TV news channel MediaOne to resume broadcast, nearly six weeks after the government revoked its security clearance forcing it to shut down.
• The channel was given security clearance by the MHA in February 2011 following which it obtained a licence to operate the channel in September 2011.
• On January 5 this year, the channel was issued notice to revoke permission on the ground of “national security and public order”.
• In February 2020, the channel’s licence was briefly suspended by MHA following its coverage of the Delhi riots.

What did the court observe?

• The court was critical about how the government and its agencies file reports in sealed envelopes directly in court without sharing the contents with the opposite party.
• Being kept in the dark about the material contained in a sealed cover report, the petitioners are crippled in mounting a defence, not knowing what they are supposed to defend against.
• At times, their cases, mostly involving fundamental rights such as personal liberty, are dismissed on the basis of the secret contents ensconced in the sealed covers.
• Impedes an ongoing investigation
• Details which are part of the police’s case diary or

(2) Bhim Koregaon Case

Criticism of such acts

• Critics of this practice contend that it is not favorable to the principles of transparency and accountability of the Indian justice system.

How has the judiciary responded to this?

• In the 2019 judgment in the case of P Gopalakrishnan V. The State of Kerala, the Supreme Court had said that disclosure of documents to the accused is constitutionally mandated.
• This is possible even if the investigation is ongoing and said documents may lead to breakthroughs in the investigation.

Sealed Cover Jurisprudence

Mains level: Fair trial issue

Some Parliamentarians and prominent figures have issued a statement expressing discontent over the Kerala High Court’s verdict upholding the transmission ban on a Malayalam news channel .

• The channel went off air as the Centre suspended its telecast over “security reasons”.
• The High Court’s decision was based entirely on the assessment of documents presented by the MHA in a sealed cover.
• The contents of which were not shared with the news channel.
• It is also said to enlarge the scope for arbitrariness in court decisions, as judges are supposed to lay down reasoning for their decisions.

How has judiciary responded to this?

• This is possible even if the investigation is ongoing and said documents may lead to breakthrough in the investigation.

A case for a more federal judiciary

Prelims level: Federal structure

Mains level: Paper 2: Federal judiciary

The article examines the need to strengthen the federal nature of our judiciary.

Federalism in India

• India is a union of States .
• Part of basic structure: The Supreme Court of India has held that the federalist nature of our country is part and parcel of the basic structure of the Constitution.
• A midpoint between unitarism and confederalism: Federalism is a midpoint between unitarism which has a supreme center, to which the States are subordinate, and confederalism wherein the States are supreme and are merely coordinated by a weak center.
• Role of judiciary : An integral requirement of a federal state is that there be a robust federal judicial system that interprets this constitution, and therefore adjudicates upon the rights of the federal units and the central unit, and between the citizen and these units.

Nature of judiciary in India: Federal judiciary

• The federal judicial system comprises the Supreme Court and the High Court in the sense that it is only these two courts that can adjudicate the rights of federal units.
• The Indian Federation though a dual polity has no dual judiciary at all.
• Single integrated judiciary: The High Courts and the Supreme Court form one single integrated judiciary having jurisdiction and providing remedies in all cases arising under the constitutional law, the civil law, or the criminal law.

Equality of power of High Court judges and Supreme Court judges

• The Indian Constitution envisaged the equality of power of High Court judges and Supreme Court judges, with a High Court judge not being a subordinate of a Supreme Court judge.
• Superior only in the appellate sense: The Supreme Court has, on many occasions, reiterated the position that the Supreme Court is superior to the High Court only in the appellate sense.
•  A delicate balance is required to be maintained between the Supreme Court and the High Courts in order for the constitutional structure to work.
• This balance existed from Independence onwards, until the 1990s. Since then, however, it has been tilting in favor of the central court. 

Erosion of standing of High Court

• In recent years, three specific trends have greatly eroded the standing of the High Court, leading to an imbalance in the federal structure of the judiciary.
• 1] Collegium system : The Supreme Court of India today, by playing the role of a collegium, effectively wields the power to appoint a person as a judge to a High Court or to transfer him or her to another High Court, or to appoint (or delay the appointment) of a sufficiently senior High Court judge as chief justice or as a judge of the Supreme Court
• The practical impact of this in the power dynamic between a High Court judge and a Supreme Court judge leaves little to be said or imagined.
• 2] Parallel judicial systems: Successive governments have passed laws that create parallel judicial systems of courts and tribunals which provide for direct appeals to the Supreme Court, bypassing the High Courts.
• These laws lead to the creation of parallel hierarchies of courts and tribunals, whether it be the Competition Commission, or the company law tribunals, or the consumer courts
• In all these cases, the High Courts are bypassed .
• Laws have been drafted such that the High Court has no role to play and the Supreme Court directly acts as an appellate court
• 3] Interventionist Supreme Court: The Supreme Court has been liberal in entertaining cases pertaining to trifling matters.
• This has inevitably led to the balance tipping in favor of the centralization of the judiciary.
• An aggressively interventionist Supreme Court leads many to approach it directly as a panacea for all ills befalling the nation.
• We see the Supreme Cour t interfering in matters which are clearly of local importance , having no constitutional ramifications.

Impact on the federal structure

• The greater the degree of centralization of the judiciary, the weaker the federal structure .
• In the United States, empirical research shows that the U.S. Supreme Court is far more likely to strike down a state statute as unconstitutional than a federal statute.
• Courts face much weaker constraints when they strike down state legislation , especially state laws that are disapproved of by national political majorities.
•  In Nigeria, a similar federal country, research has shown that the Supreme Court favours the jurisdiction of the central government over the State units.

Conclusions

• Federalism is a midpoint between unitarism which has a supreme centre, to which the States are subordinate, and confederalism wherein the States are supreme, and are merely coordinated by a weak centre.
• An integral requirement of a federal state is that there be a robust federal judicial system which interprets the constitution
• The federal judicial system comprises the Supreme Court and the High Court in the sense that it is only these two courts which can adjudicate the above rights.

Issues related to Tribunal

Prelims level: Tribunals, NCLT

Mains level: Issues with appointments in Tribunals

The Supreme Court has warned that even after the judicial intervention, the government made abrupt efforts to fill vacancies in tribunals some time back and nothing after that.

What is the case?

• The apex court said that it is getting requests for extension of time for NCLT (Nation Company Law Tribunal) matters, etc.
• Some knee-jerk appointments took place and nothing after that.
• The govt earlier had introduced Tribunal Reforms Bill in 2021 , which abolishes nine appellate tribunals and revives provisions of an ordinance struck down by the Supreme Court.
• Tribunals are specialist judicial bodies that decide disputes in a particular area of law.
• They are institutions established for discharging judicial or quasi-judicial duties.
• The objective may be to reduce the caseload of the judiciary or to bring in subject expertise for technical matters.

Do you know? The Income Tax Appellate Tribunal was established as the first Tribunal in India back in 1941.

Creation of Tribunals

In 1976, Articles 323A and 323B were inserted in the Constitution of India through the 42nd Amendment.

• Article 323A: This empowered Parliament to constitute administrative Tribunals (both at central and state level) for adjudication of matters related to recruitment and conditions of service of public servants.
• Article 323B: This specified certain subjects (such as taxation and land reforms) for which Parliament or state legislatures may constitute tribunals by enacting a law.
• In 2010, the Supreme Court clarified that the subject matters under Article 323B are not exclusive, and legislatures are empowered to create tribunals on any subject matters under their purview as specified in the Seventh Schedule.

SC stance on Tribunals

• The Supreme Court has ruled that tribunals, being quasi-judicial bodies, should have the same level of independence from the executive as the judiciary.
• Key factors include the mode of selection of members, the composition of tribunals, and the terms and tenure of service.
• In order to ensure that tribunals are independent of the executive, the Supreme Court had recommended that all administrative matters be managed by the law ministry rather than the ministry associated with the subject area.
• Later, the Court recommended the creation of an independent National Tribunals Commission for the administration of tribunals.
• These recommendations have not been implemented.

Issues with tribunals

• Pendency: Whereas the reasoning for setting up some tribunals was to reduce the pendency of cases in courts, several tribunals are facing the issue of a large caseload and pendency.
• No appointment: With over 240 vacancies in key tribunals where thousands of cases were pending, not a single appointment had been made by the government in any of these tribunals till date.

Back2Basics: National Company Law Tribunal

• The NCLT is a quasi-judicial body that adjudicates issues relating to Indian companies.
• The tribunal was established under the Companies Act 2013 in 2016 and is based on the recommendation of the V. Balakrishna Eradi Committee.
• All proceedings under the Companies Act, including proceedings relating to arbitration, compromise, arrangements, reconstructions and the winding up of companies shall be disposed off by the NCLT.
• The NCLT bench is chaired by a Judicial member who is supposed to be a retired or a serving High Court Judge and a Technical member who must be from the Indian Corporate Law Service, ICLS Cadre.
• It is the adjudicating authority for the insolvency resolution process of companies and limited liability partnerships under the Insolvency and Bankruptcy Code, 2016.

Comprehensive Amendment of Criminal Laws

Prelims level: Criminal laws mentioned

Mains level: Need for reforming criminal justice system

The Central government has initiated the process for comprehensive amendment of criminal laws in India in consultation with all stakeholders

Criminal Laws in India

Indian criminal laws are divided into three major acts:

• Indian Penal Code, 1860: It is a comprehensive code intended to cover all substantive aspects of criminal law.
• Code of Criminal Procedure, 1973: CrPC defines the rules with which substantive laws can be enforced.
• Indian Evidence Act, 1872: It contains a set of rules and allied issues governing the admissibility of evidence in the Indian courts of law.

Besides these major acts, special Criminal Laws are also passed by the Indian Parliament which includes:

• Narcotic Drugs and Psychotropic Substances Act
• Prevention of Corruption Act
• Food Adulteration Act
• Dowry Prohibition Act
• The Defence of India Act, etc.

Issues with these laws

• Colonial ideas prevail in the code.
• Some laws don’t reflect the aspirations of India’s liberal Constitution
• It does not recognize the individual agency of citizens of free India
• Too many laws promote patriarchal attitudes, biased against women
• Sedition laws are misused by the state
• Tech crimes, cyber crimes, sexual offenses need to be defined
• Risk of excessive policing, which leads to harassment of people.
• Need to harmonize statute books with court rulings, which have often expanded the rights of people.
• Some provisions are disadvantageous for the underprivileged who are trapped in jail for long but favour the powerful, who get bail very easily
• Influence of media trials on the judiciary while using the IPC.

Why amend them?

• The evolution of criminal laws is a continuous process.
• They need to be made in accordance with the contemporary needs and aspirations of people.
• Malimath Committee has called for reform in India’s criminal justice system.

Progress made to date

• The entire procedure is a long-drawn-out one and no time limit can be fixed or given for this legislative process.
• Legislation of such laws is a complex and lengthy exercise given the spectrum of divergent views of stakeholders.
• The Home Ministry is seeking suggestions from various stakeholders and judicial luminaries in this regard.

‘Indianizing’ the Legal System and SC’s Views

Mains level: Judicial Reforms

At least two Supreme Court judges have in the past few months openly expressed the need to “Indianize” the legal system.

• This week, Justice S. Abdul Nazeer underscored the need to embrace the great legal traditions as per Manu, Kautilya, Katyayana, Brihaspati, Narada, Parashara, Yajnavalkya and other legal giants of ancient India.
• Continued neglect of their great knowledge and adherence to alien colonial legal system is detrimental to the goals of our Constitution and against our national interests, he said.
• He emphasized the need for Indianization of the legal system to decolonize the Indian legal system.
• He concluded that this colonial legal system is not suitable for the Indian population.

Background of the case

Then CJI P.N. Bhagwati in the M.C. Mehta Case way back in 1986 has said that-

• We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country.
• We no longer need the crutches of a foreign legal order.
• We are certainly prepared to receive light from whatever source it comes from, but we have to build up our own jurisprudence.

Indianization of Judiciary

• Last month, CJI N.V. Ramana called for the “Indianization” of the legal system to provide greater access to justice to the poor as the “need of the hour”.
• CJI emphasized this as an adaptation to the practical realities of our society and localize our justice delivery systems.
• For example, parties from a rural place fighting a family dispute are usually made to feel out of place in the court, the CJI clarified.

Major suggestions by CJI:

(a) simplification.

• The simplification of justice delivery should be our pressing concern.
• It is crucial to make justice delivery more transparent, accessible and effective.
• Procedural barriers often undermine access to justice.
• The Chief Justice said both judges and lawyers have to create an environment which is comforting for the litigants and other stakeholders.

(B) Alternate dispute mechanisms

• The CJI said alternate dispute mechanisms like mediation and conciliation would go a long way in reducing pendency, unnecessary litigation and save resources.
• The Chief Justice said both judges and lawyers have to create an environment that is comforting for the litigants and other stakeholders.

Recent moves of Indianization

• Supreme Court judgments show that the Indian legal system had made an early start at consciously getting rid of the “crutches” of colonial influence.

(1) General principles laid by the SC

• The evolution of laws in India has been through legislation and the binding precedents of the Supreme Court under Article 141 of the Constitution.
• Article 142 of the Constitution of India deals with the Enforcement of decrees and orders of the Supreme Court.

(2) Public Interest Litigation

• The public interest litigation mechanism is truly Indian.

(3) Reference to Indian texts

• Several judgments since the 1980s refer to the works of Manu and Kautilya.
• In the privacy judgment, Justice S.A. Bobde (retired), referred to how “even in the ancient and religious texts of India, a well-developed sense of privacy is evident”.
• He mentions that Kautilya’s “Arthashastra prohibits entry into another’s house, without the owner’s consent”.

Issues with Ancient Texts

• In the Sabarimala Case, the court pointed to the Manusmriti to observe that in these “ancient religious texts and customs, menstruating women have been considered as polluting the surroundings”.
• It went on to hold that practices that legitimize menstrual taboos, due to notions of purity and pollution, limit the ability of menstruating women to attain the freedom of movement and the right of entry to places of worship.
• It is time for courts to wake up from their colonial stupor and face the practical realities of Indian society.
• Rules and procedures of justice delivery should be made simple.
• The ordinary, poor, and rural Indian should not be scared of judges or the courts.

Plea in Supreme Court seeks ‘Uniform Judicial Code’ for HCs

Mains level: Uniform Judicial Code

A petition was filed in the Supreme Court to implement a “Uniform Judicial Code (UJC)” for High Courts across the country to adopt a uniform set of procedures, especially for virtual courts.

What is the PIL about?

• The petition urged the apex court to take appropriate steps to adopt uniform procedure for case registration, use common judicial terms, phrases and abbreviations and make the court fee uniform.
• It has, alternatively, sought a direction to the Law Commission of India to prepare a report in consultation with the HC in this regard.

Why need UJC?

• Matter of Equality: Judicial equality is a matter of constitutional right, its differentiation based on the jurisdiction of courts violates the right to equality.
• Different nomenclatures: All the 25 High Courts have different usage of the phrases when it comes to identifying different cases.
• Diverse procedures: The PIL plea highlighted how different High Courts follow different procedures in matters pertaining to virtual courts, started during the pandemic.
• Different fees: Unequal court fees in different states discriminate among citizens based on their place of birth and residence. Moreover, it promotes regionalism; hence it is a clear violation of Articles 14-15.

Way forward: Bringing in digitized Judiciary systems

• The judiciary needs to develop a well-defined framework supported by an accessible platform and direct e-court system in India.
• It also needs to harp on advanced infrastructure to run an e-court system that eradicates the digital divide, simultaneously upping judicial functioning.
• While the digitized judicial systems give some semblance of convenience for the people who interact with the court, digitization also brings threats of intrusion etc.

Judges cannot be shielded from citizens’ questions

Mains level: Paper 2- Judicial pendency

Recently, the Chief Justice of India, in his own mild way, protested against the attack on judges. One can understand his pain and agony, but he too knows that judges do not, and should not live in ivory towers.

Questioning and analysing actions of the judiciary

• As the judiciary is one of the pillars of democracy, and the Constitution entrusts judges with the task of protecting the constitutional rights of the people, especially the right to life and liberty, the consumer of justice has every right , and would be fully justified in critically examining, and commenting upon each and every word of the judges spoken or written, howsoever unpalatable it may be.
• It appears that it is in the above spirit that MP Shashi Tharoor, speaking in Parliament on the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill said that the judiciary had failed to stem the tide of militant majoritarianism.
• He alleged that the “ judiciary’s inaction almost always favours those in power”. 
• He has raised pertinent questions, and has brought out the glaring failings of the judiciary in matters concerning the protection of the constitutional rights of citizens. 
• Pendency of important cases such as the abrogation of Article 370 of the Constitution, the Citizenship Amendment Act, electoral bonds, and many petitions under the preventive detention laws highlights this issue.

Issues in functioning of collegium system

• As regards the functioning of the collegium system, judges are transferred without any seeming justification, and in some cases re-transferred, justifying neither their initial transfer nor the re-transfer.
• Some elevations of judges raise eyebrows, while some are ignored.
• Should the collegium not be more transparent than it has been in the past in the matter of the elevation and transfers of judges?

Judges cannot be shielded from citizens’ questions. After all, as a consumer of justice, the citizen has a right to know.

In news: Law Commission of India

Mains level: Role of Law Commission in Legal Reforms

The Government has informed the Supreme Court that the appointment of Chairperson and Members of the 22nd Law Commission of India is under consideration.

• The setting up of the 22nd Law Commission was constituted by the Government on February 21, 2020.
• However, no progress has been made in the appointments till date.
• The Government invoked the ‘doctrine of separation of power’, which says that one arm of governance should not encroach into that of another.

Issues over appointment

• The last chairman of the law commission was retired Supreme Court judge, Justice B.S. Chauhan, who completed his tenure on 31 August 2018.
• Subsequently, the Commission has not been reconstituted.
• In February 2020, the Government of India announced its intention to reconstitute the Commission with no visible progress.

About Law Commission

• Law Commission of India is a currently-defunct executive body established by an order of the Government of India.
• The Commission’s function is to research and advise the GoI on legal reform, and is composed of legal experts, and headed by a retired judge.
• The commission is established for a fixed tenure and works as an advisory body to the Ministry of Law and Justice.
• The last chairman of the Commission retired in August 2018, and since then, it has not been reconstituted.

Colonial Background

• The first Law Commission was established during colonial rule in India, by the East India Company under the Charter Act of 1833.
• It was then presided by Lord Macaulay.
• After that, three more Commissions were established in pre-independent India.

Post-Independence functioning

• The first Law Commission of independent India was established in 1955 for a three-year term.
• Since then, twenty-one more Commissions have been established.
• The First Law Commission under Macaulay Itsuggested various enactments to the British Government, most of which were passed and enacted and are still in force in India.
• Its role has been both advisory and critical of the government’s policies
• It also strives to promote an accountable and citizen-friendly government that is transparent and ensures the people’s right to information.

In news: Two principles of Justice

Prelims level: Theory of Justice

Mains level: Principle of Justice

This newscard is an excerpt of the original article published in TH.

Note: This article is of extreme theoretical nature. But it leaves scope for many vague questions for prelims as well as mains where most of us go clueless.

Two principles of Justice

• The concept, so-called, of “two principles of justice”, is synonymous with the name of John Rawls, a highly influential American liberal political philosopher of the last century.
• The concept of two principles forms an encapsulation of the core principles of:
• Freedom and equality embodied in the constitutions of any contemporary liberal democratic society
• As such, they have acquired pre-eminence in a wide range of academic disciplines and in the arena of public policymaking.

What are the two principles?

• The first of Rawls’ two principles says that every citizen has the same claim to a scheme of equal basic liberties, which must also be compatible with those of every other citizen.
• It enumerates an extensive list of basic civil and political rights, including a person’s freedom of conscience, expression and association; the right to a basic income; and the right to exercise the franchise.
• Their resonance with the practical world of politics needs no emphasis; consider the chapter on fundamental rights in any constitution.
• The second of Rawls’ two principles grapples with the underlying inequalities of social and economic institutions.

How can these be reasonably justified to free and equal citizens?

• In order to be morally defensible, the institutions must satisfy two conditions.
• First, they must guarantee fair equality of opportunities for competition to positions of public office and employment.
• Second, social and economic inequalities must be arranged in a manner that they work to the greatest benefit of the least advantaged members of society.
• This latter postulate is Rawls’ famous “difference principle”.

Significance of this principle

• The political significance of Rawls’ two principles of justice obtains equally in the relative weight and primacy he assigns to their different components.
• Between them, the first principle is accorded absolute priority over the second.
• That is to say, the primacy of the equal basic liberties of citizens is non-negotiable in a democratic society.
• The entitlement of each to the various liberties is as critical as they are universal and non-discriminatory.
• Within the second principle, the first part takes precedence over the second.
• In other words, public institutions could not appear legitimate in the eyes of citizens unless everybody could reasonably expect to enjoy the fruits of fair equality of opportunities.

Try this question from CSP 2020: Q. One common agreement between Gandhism and Marxism is (a) The final goal of a stateless society (b) Class struggle (c) Abolition of private property (d) Economic determinism   Post your answers here. 9 Please leave a feedback on this x

SC pushes for National Judicial Infrastructure Corporation (NJIC)

Prelims level: NJIC

Mains level: Judicial Infrastructure in India

The Supreme Court orally said that courts cannot wait on the whims and fancies of the Government, but need a proper mechanism for funding the development of judicial infrastructure.

National Judicial Infrastructure Corporation (NJIC)

• The idea for such NJIC was first proposed by CJI Ramana in March this year, even before he took office.
• It mooted the idea of an “umbrella national organization” that would take care of the need for judicial infrastructure.
• Such a corporation would bring the uniformity and standardization required to revolutionize judicial infrastructure, said CJI.
• Soon after he was sworn in, the CJI commenced work on the NJIC and a survey of 6,000 trial courts in various states was undertaken as part of this exercise.

CJI recommends the composition of NJIC

• The CJI has said that the Judiciary is least interested in retaining control of the council.
• The composition can be of the Union Minister for Law and Justice, the Secretary, Finance, etc.
• The States can also be represented.
• The benefit of having a senior judge or Chief Justice on it would be that they are in the know of things.

Why need NJIC?

• No central agency: Presently, there is no agency to ensure use of funds allocated to augment judicial infrastructure
• Infrastructure gap: There is a substantial gap in infrastructure and availability of basic amenities in the lower judiciary.
• Lack of basic amenities: There is a lack of court halls, residential accommodation, and waiting room for litigants in trial courts, especially in smaller towns and rural areas.
• Budgetary lapses: Experience shows that budgetary allocation for state judiciary often lapses since there is no independent body to supervise and execute works.

NJIC is expected to fill this vacuum and overcome problems related to infrastructure.

Significance of NJIC

• The modernization of judicial infrastructure did not mean building more courts or filling up vacancies or ploughing through vacancies.
• An efficient “judicial infrastructure” means providing equal and free access to justice.
• This could be realized through a barrier-free and citizen-friendly environment.

Why are Judicial Transfers riddled by controversies?

Prelims level: Article 222

Mains level: Issues with Judicial Transfer

The transfer of Chief Justice Sanjib Banerjee from the Madras High Court to the Meghalaya High Court has given rise to a controversy over the question of whether judicial transfers are made only for administrative reasons or have any element of ‘punishment’ behind them.

Transfer of judges and the Constitution

• Article 222 of the Constitution provides for the transfer of High Court judges, including the Chief Justice.
• It says the President, after consultation with the Chief Justice of India, may transfer a judge from one High Court to any other High Court.
• It also provides for a compensatory allowance to the transferred judge.
• This means that the executive could transfer a judge, but only after consulting the Chief Justice of India.
• From time to time, there have been proposals that one-third of the composition of every High Court should have judges from other States.

What is the Supreme Court’s view on the issue?

Union of India vs. Sankalchand Himatlal Sheth (1977)

• The Supreme Court rejected the idea that High Court judges can be transferred only with their consent.
• It reasoned that the transfer of power can be exercised only in public interest.
• It held that the President is under an obligation to consult the CJI, which meant that all relevant facts must be placed before the CJI.
• It ruled CJI had the right and duty to elicit and ascertain further facts from the judge concerned or others.

S.P. Gupta vs. President of India, 1981 (First Judges Case)

• It considered the validity of the transfer Judges as well as a circular from the Law Ministry.
• The Ministry had put that additional judge in all High Courts may be asked for their consent to be appointed as permanent judges in any other High Court, and to name three preferences.
• The Minister’s reasoning was that such transfers would promote national integration and help avoid parochial tendencies bred by caste, kinship and other local links and affiliations.
• The majority ruled that consultation with the CJI did not mean ‘concurrence’ with respect to appointments.

SCARA Vs Union of India, 1993 (Second Judges Case)  

• In effect, it emphasized the primacy of the executive in the matter of appointments and transfers.
• However, this position was overruled in the ‘Second Judges Case’ (1993).
• The opinion of the CJI, formed after taking into account the views of senior-most judges, was to have primacy.
• Since then, appointments are being made by the Collegium.

Current procedure for transfers

• As one of the points made by the ‘Second Judges Case’ was that the opinion of the CJI ought to mean the views of a plurality of judges, the concept of a ‘Collegium of Judges’ came into being.
• In the collegium era, the proposal for transferring a High Court judge, including a Chief Justice, should be initiated by the Chief Justice of India, “whose opinion in this regard is determinative”.
• The consent of the judge is not required.
• All transfers are to be made in public interest, i.e. for promoting better administration of justice throughout the country.
• For transferring a judge other than the Chief Justice, the CJI should take the views of the CJ of the court concerned, as well as the CJ of the court to which the transfer is taking place.
• The CJI should also take into account the views of one or more Supreme Court judges who are in a position to offer their views.
• In the case of transfer of a Chief Justice, only the views of one or more knowledgeable Supreme Court judges need to be taken into account.

Provision for Written Recommendation

• The views should all be expressed in writing, and they should be considered by the CJI and four senior-most judges of the Supreme Court, which means, the full Collegium of five.
• The recommendation is sent to the Union Law Minister who should submit the relevant papers to the Prime Minister.
• The PM then advises the President on approving the transfer.

What makes transfers controversial?

• Punitive intent: Transfer orders become controversial when the Bar or sections of the public feel that there is a punitive element behind the decision to move a judge from one High Court to another.
• No disclosure of reasons: As a matter of practice, the Supreme Court and the government do not disclose the reason for a transfer.
• Adverse opinions behind: For, if the reason is because of some adverse opinion on a judge’s functioning, disclosure would impinge on the judge’s performance and independence in the court to which he is transferred.

Need for ‘Indianization’ of Legal System: CJI

Mains level: Indianization of Judiciary

Chief Justice of India NV Ramana has asserted the need for the “Indianisation of our legal system”, pointing out that the colonial system being followed currently may not be best suited to the complexities of India.

Prospects of Indianization by CJI

• CJI meant that the need to adapt to the practical realities of our society and localize our justice delivery systems.
• For example, parties from a rural place fighting a family dispute are usually made to feel out of place in the court.
• They do not understand the arguments or pleadings which are mostly in English, a language alien to them.
• These days judgments have become lengthy, which further complicates the position of litigants.
• For the parties to understand the implications of a judgment, they are forced to spend more money.
• For whom do the court’s function, the CJI asked. For the litigants, who are the “justice seekers”. They are the ultimate beneficiaries.

What did CJI say?

• CJI has said the ordinary Indian feels out of place in our courts where proceedings are lengthy, expensive and in English.
• Besides, judgments are either too long or technical or manage to be both.
• The ordinary, poor and rural Indian should not be scared of judges or the courts.

Reasons for Indianization

• Multiple barriers continue to thwart the citizen’s way to the courts.
• The working and the style of courts do not sit well with the complexities of India.
• The systems, practices and rules of courts are foreign and sourced from our colonial days. They do not take care of the practical realities of India.

It is time to end judicial feudalism in India

Prelims level: Article 235

Mains level: Paper 2- Independence of judiciary

The August 11 order of the Himachal Pradesh High Court directed that “hereinafter, all the courts in the state other than the high court shall be referred to as district judiciary”. Furthermore, “these courts shall not be referred to as subordinate court” but as trial courts.

Issues with the judicial hierarchy Vs. hierarchy of judges

• The expression “subordinate courts” used by Part VI, Chapter 6, of the Constitution of India cannot signify that judges are subordinate.
• The term subordinate has implications for the independence of the judiciary, entrenched with and since Kesavananda Bharati (1973) as the essential feature of the basic structure of the Indian Constitution.
• No judge is “subordinate” to any other, constitutionally judges are limited in the jurisdiction but also supreme within their own jurisdiction.
• However, Article 235 speaks of “control over subordinate courts”.
• This Article created the notion of subordination by describing these entities and agents as persons “holding a post inferior to the post of a district judge”.

Constitutional provision

• The Constitution no doubt contemplates a hierarchy of jurisdictions , but no judge, acting within her jurisdiction, is “inferior” or “subordinate”.
• On appeal, or review, a court with ample jurisdiction may overturn and even pass judicial strictures but this does not make the concerned courts “lower” or “inferior” courts.
• Supervisory powers: High courts always have considerable powers of superintendence on the administrative side but this “supervisory“ power has been recognised by the apex court as a “constitutional power” and subject to the right of appeal as granted by Article 235.
• While the Constitution allows “supervision”, it does not sanction judicial despotism.
• Despite this, arbitrary practices in writing confidential reports of district justices seem to continue.
• Constitutional amendment: A complete recasting of Article 235 is needed, which does away with the omnibus expression of “control” powers in the high courts.
• The amendment should specifically require the high courts to satisfy the criteria flowing from the principles of natural and constitutional justice and all judicial officers who fulfil due qualification thresholds should be treated with constitutional dignity and respect.
• Collegiate system at high court’s level: For most matters (save elevation), senior-most district judges and judges of the high courts should constitute a collegiate system to facilitate judicial administration, infrastructure, access, monitoring of disposal rates, minimisation of undue delays in administration of justice, alongside matters concerning transfers, and leave.
•  If an ACR is to be adversely changed in the face of a consistent award for a decade or more, it should be a collegiate act of the five senior-most justices, including the Chief Justice of the High Court.
• CJI Ramana has recently agreed in principle, following the request of the Supreme Court Bar Association, that chief justices of the high courts should consider lawyers practising in the Supreme Court for elevation to the high courts.

Consider the question “Do you agree with the view that the Constitution contemplates a hierarchy of jurisdictions, but no judge, acting within her jurisdiction, is “inferior” or “subordinate”. Give reason in support of your argument.”

The changes suggested here needs to be implemented to ensure the independence of the judiciary at all levels.

SC questions govt over Tribunal Reforms Bill

Mains level: Issues with Tribunals Reform Bill 2021

The Supreme Court has challenged the government to produce material showing its reasons for introducing the Tribunal Reforms Bill of 2021, which abolishes nine appellate tribunals and revives provisions of an ordinance struck down by the Supreme Court, in the Parliament.

Tribunals Reforms Bill, 2021

What is the recent news?

• A three-judge Bench led by CJI has put the government on the dock about the complete absence of material justifying the Bill and also the lack of proper debate in the Parliament.
• The provisions regarding conditions of service and tenure of Tribunal Members and Chairpersons were struck down by the Supreme Court.
• However, the same provisions re-appeared in the Tribunal Reforms Bill recently passed.
• The court has also noted its reservations against the complete dissolution of some tribunals.

What happens to cases pending before the tribunals are dissolved?

• These cases will be transferred to High Courts or commercial civil courts immediately. Legal experts have been divided on the efficacy of the government’s move.
• While on the one hand, the cases might get a faster hearing and disposal if taken to High Courts, experts fear that the lack of specialization in regular courts could be detrimental to the decision-making process.
• For example, the FCAT exclusively heard decisions appealing against decisions of the censor board, which requires expertise in art and cinema.

Observations made by the Court

• With over 240 vacancies in key tribunals where thousands of cases were pending, not a single appointment had been made by the government in any of these tribunals to date.
• The CJI repeated his question of whether the government was moving towards closing down the tribunals.

A new flashpoint between Executive and Judiciary

• The verdict discussed the possibility of legislation overriding the court’s directions.
• In other cases, too, the SC and Parliament have been at loggerheads on the issue of rationalization of tribunals.

Issues related to Judicial appointment in India

Prelims level: Article 124(2) and Article 217

Mains level: Issues with collegium system

Recommendations of some judges for appointment by the collegium raises the issue of changes in the collegium system.

Background of the collegium system

• During the 1970s, the political leaning of a candidate had become a major consideration in the matter of appointment of judges.
• Therefore, it was felt that the role of the state in the appointment of judges in terms of Article 124 (2) and 217 needed to be reconsidered.
• But then, in 1982 in S P Gupta’s case, the Supreme Court bench of five judges gave its approval to the primacy of the state in the matter of appointment of judges.
• However, that judgment was overturned subsequently by a bench of nine judges.
• Primacy of CJI :  It held that the provisions for consultation with the Chief Justice of India , and the Chief Justices of the high courts in Articles 124 (2) and 217 of the Constitution were introduced because of the realisation that the Chief Justice is best equipped to know and assess the worth of a candidate , and his/her suitability for appointment as a superior judge.
• Initiation of proposal by CJI: It also held that the initiation of the proposal for appointment of a judge to the SC must be made by the CJI after wider consultation with senior judges, and likewise in the case of high courts.
• Confirmation of CJI: It was also held that no appointment of any judge to the SC or any high court can be made unless it conforms with the opinion of the CJI.
• Thus, what is known as the “collegium system” was born.
• Striking down of NJAC: In 2014, the government tried to make changes to the collegium system by introducing Article 124 (A) by a constitutional amendment, and by enacting National Judicial Appointments Commission Act, 2014.
• The SC has struck down both the amendment and the Act.

Has the collegium system succeeded?

• Nepotism: There have been cases where the nearest relative of Supreme Court judges has been appointed as a high court judge, ignoring merit .
• Ignoring the merit: Judges far lower in the combined All India Seniority of High Court judges were appointed to SC, and the reason assigned was that those selected were found more meritorious.

The collegium system is still the best, but it needs to weed out what is wrong in its actual working. It is hoped that the system will make course corrections in deserving cases.

Collegium system’s role in protecting democracy

Prelims level: Article 124 and Article 214

Mains level: Paper 2- Collegium system

Judiciary is being challenged, from within and outside. It must shield itself from further erosion of its independence and competence by scrupulously following the law, as declared by the Supreme Court (SC) itself.

How the Collegium helped to secure the independence of judiciary

• In 1993, the SC held the following:
• The process of appointment of Judges to the Supreme Court and the High Courts is an integrated ‘participatory consultative process’ .
• The process aims at selecting the best and most suitable persons available for appointment.
• The Collegium consists of the CJI and the four senior-most judges of the SC and high courts.
• It was devised to ensure that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary.
• By judicial interpretation, the Supreme Court re-interpreting Article 124 and 214 of the Constitution empowered the judiciary to make appointments to the higher judiciary to secure the rule of law.

Threat to the judicial independence

• The framers of the Constitution were alive to the likely erosion of judicial independence.
• In  2016, the Supreme Court struck down a constitutional amendment for creating the National Judicial Appointments Commission (NJAC).
• The SC strongly disapproved of any role for the political executive in the final selection and appointment of judges.
• The SC said that “ reciprocity and feelings of payback to the political executive” would be disastrous to the independence of the judiciary.

Consider the question “How the Collegium system helped the Judiciary secure its independence? What are the issues with it?”

The selection of deserving judges is essential to ensure the independence of the judiciary. The Collegium must do its best in this task.

Back2Basics: About the National Judicial Appointments Commission

• The NJAC or National Judicial Appointments Commission sought to change the system, where judges would have been appointed by a commission where the legislative and the executive would have had a role.
• The NJAC was supposed to comprise of the Chief Justice of India (Chairperson, ex-officio), two other senior judges of the Supreme Court, The Union Minister of Law and Justice, ex-officio and two eminent persons, to be appointed by the Chief Justice of India, Prime Minister of India, and Leader of Opposition in the Lok Sabha.
• The bill was passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014, and became an Act.
• The NJAC replaced the collegium system for the appointment of judges.
• The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in India, and the President gave his assent on 31 December 2014.
• The NJAC Act became effective from April 13, 2015.
• The NJAC enjoyed support from the Supreme Court Bar Association and many legal luminaries but was also challenged by some lawyer associations and groups before the Supreme Court of India through Writ Petitions.
• A three-judge bench of the Supreme Court referred the matter to a Constitution Bench that heard different arguments for over a month.
•  Finally, on October 16, a five-judge bench of the Supreme Court declared the 99th Constitutional Amendment Act and the NJAC Act 2014 “unconstitutional and void”.

What is Recusal of Judges?

Mains level: Judical transparency issues

In the last week, two Supreme Court judges have recused themselves from hearing cases relating to West Bengal.

Can you list down some basic principles of judicial conduct? Independence, Impartiality, Integrity, Propriety, Competence and diligence and Equality are some of them as listed under the Bangalore Principles of Judicial Conduct.

What is the Recusal of Judges?

Rules on Recusals

• There are no written rules on the recusal of judges from hearing cases listed before them in constitutional courts. It is left to the discretion of a judge.
• The reasons for recusal are not disclosed in an order of the court. Some judges orally convey to the lawyers involved in the case their reasons for recusal, many do not. Some explain the reasons in their order.
• The decision rests on the conscience of the judge. At times, parties involved raise apprehensions about a possible conflict of interest.

Issues with recusal

• Recusal is also regarded as the abdication of duty. Maintaining institutional civilities are distinct from the fiercely independent role of the judge as an adjudicator.
• In his separate opinion in the NJAC judgment in 2015, Justice Kurian Joseph highlighted the need for judges to give reasons for recusal as a measure to build transparency.
• It is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case.

Pardoning powers of the President

Prelims level: Pardoning powers of Governor and President

Tamil Nadu CM has written to the President requesting him to accept the State Government’s to remit the life sentences of all the seven convicts in the Ex-PM’s assassination case.

Story so far

• Tamil Nadu government had recommended to the state Governor for the remission of the rest of the sentence for all convicts and their early release.
• The Governor has then decided that the President was the competent authority to decide on the plea of remission of sentence.

Answer this PYQ in the comment box: Q.Which of the following are the discretionary powers given to the Governor of a State? Sending a report to the President of India for imposing the President’s rule Appointing the Ministers Reserving certain bills passed by the State Legislature for consideration of the President of India Making the rules to conduct the business of the State Government Select the correct answer using the code given below: (a) 1 and 2 only (b) 1 and 3 only (c) 2, 3 and 4 only (d) 1, 2, 3 and 4

Pardoning powers in India

• Under the Constitution of India (Article 72), the President of India can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment.
• A similar and parallel power vests in the governors of each state under Article 161.

[1] President

• Article 72 says that the president shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offense.
• The pardoning powers of the Indian President are elucidated in Art 72 of the Indian Constitution. There are five different types of pardoning that are mandated by law.
• Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
• in all cases where the punishment or sentence is by a court martial;
• in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
• in all cases where the sentence is a sentence of death.

[2] Governor

• Similarly, as per article 161: Governor of a State has the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law.
• It must be relating to a matter to which the executive power of the state extends.
• Please note that President can grant pardon to a person awarded death sentence. But a governor of a state does not enjoy this power.
• The question is whether this power to grant pardon is absolute or this power of pardon shall be exercised by the President on the advice of Council of Ministers.
• The pardoning power of the president is not absolute. It is governed by the advice of the Council of Ministers.
• This has not been discussed by the constitution but is the practical truth.
• Further, the constitution does not provide for any mechanism to question the legality of decisions of President or governors exercising mercy jurisdiction.
• But the SC in Epuru Sudhakar case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.

App to view live proceedings of SC launched for media persons

Mains level: Paper 2- App to watch live proceedings of the Supreme Court

App to view virtual proceedings

• Chief Justice of India launched a mobile app that would allow media persons to view the Supreme Court’s virtual proceedings live on their mobile phones.
• The role of the media assumes importance in the process of disseminating information.
• Justice A.M. Khanwilkar said the facility, which is now temporary, could be made permanent in the future depending on the operational issues.

‘Indicative Notes’ on the SC website

• The CJI also launched a new feature in the Supreme Court’s official website called ‘Indicative Notes’.
• This feature is aimed at providing concise summaries of landmark judgments in an easy-to-understand format.
• This will serve as a useful resource for media persons and the general public who wish to be better informed about the rulings of the court.

Judicial federalism

Prelims level: Article 139A

Mains level: Paper 3- Judicial federalism and autonomy of the High Courts

The article discusses the idea of judicial federalism and autonomy of the High Courts.

Issue of transfer of cases from High Courts to Supreme Court

• Under Article 139A of the Constitution, the Supreme Court does have the power to transfer cases from the High Courts to itself if cases involve the same questions of law.
• In Parmanand Katara v. Union of India (1989) , the Supreme Court underlined that the right to emergency medical treatment is part of the citizen’s fundamental rights.
• As such, constitutional courts owe a duty to protect this right.
• In the face of a de facto COVID-19 health emergency, the High Courts of Delhi, Gujarat, Madras and Bombay, among others, have done exactly that.
• These High Courts among others have directed the state governments on various issues related to COVID-19 health emergency.
• However, Supreme Court issued an order asking the State governments and the Union Territories to “show cause why uniform orders” should not be passed by the Supreme Court.
• Therefore, the Supreme Court indicated the possibility of the transfer of cases to itself.

Issues with the SC’s move

• According to the Seventh Schedule of the Constitution, public health and hospitals come under the State List as Item No. 6.
• There could be related subjects coming under the Union List or Concurrent List.
• Also, there may be areas of inter-State conflicts.
• But as of now, the respective High Courts have been dealing with specific challenges at the regional level, the resolution of which does not warrant the top court’s interference.
• In addition to the geographical reasons, the constitutional scheme of the Indian judiciary is pertinent.
•  In L. Chandra Kumar v. Union of India (1997), the Supreme Court itself said that the High Courts are “institutions endowed with glorious judicial traditions” since they “had been in existence since the 19th century”.
• Even otherwise, in a way, the power of the High Court under Article 226 is wider than the Supreme Court’s under Article 32.
• This position was reiterated by the court soon after its inception in State of Orissa v. Madan Gopal Rungta (1951).
• Judicial federalism has intrinsic and instrumental benefits which are essentially political.
• The United States is an illustrative case.
• The U.S. Supreme Court reviews “only a relative handful of cases from state courts” which ensures “a large measure of autonomy in the application of federal law ” for the State courts.
• The need for a uniform judicial order across India is warranted only when it is unavoidable — for example, in cases of an apparent conflict of laws or judgments on legal interpretation.
• Otherwise, autonomy, not uniformity, is the rule.
• Decentralisation, not centrism, is the principle.

Consider the question “Under Article 139A of the Constitution, the Supreme Court does have the power to transfer cases from the High Courts to itself if cases involve the same questions of law. However, transferring such cases should not impinge on judicial federalism. Comment.”

In the COVID-19-related cases, High Courts across the country have acted with an immense sense of judicial responsibility. This is a legal landscape that deserves to be encouraged. To do this, the Supreme Court must simply stay away.

Need for diversity and propriety in judiciary

Prelims level: Women Judges in the SC

Mains level: Paper 2- Issue of women representation in the judiciary in Inda

The article highlights the issue of women representation and its implications for the role of the judiciary.

Improving representation of women

• Presently, the Supreme Court is left with only one woman judge, who is also going to retire next year, after which, the SC will be left without a woman judge.
• The collegium failed to take timely steps to elevate more women judges in the SC.
• In the 71 years of history of the SC, there have been only eight women judges — the first was Justice Fathima Beevi, who was elevated to the bench after a long gap of 39 years from the date of establishment of the SC.
• In the submissions filed by the AG on the issue states that improving the representation of women in the judiciary could go a long way towards attaining a more balanced and empathetic approach in cases involving sexual violence.
• The AG also brought up the fact that there has never been a woman Chief Justice of India (CJI).

Women representation in developed countries

• The situation is not any different in developed countries such as the US, UK, Ireland, France and China.
• According to the data collected by Smashboard, a New Delhi and Paris-based NGO, not only has no woman ever been appointed as the CJI, the representation of women across different courts and judicial bodies is also abysmally low.
• In the last few meetings of the collegium, there has been some talk of promoting women to the apex court.
• In this regard, if Justice B V Nagaratha of the Karnataka High Court is elevated to the Supreme Court, she could become the first woman CJI in February 2027.
• But her elevation will lead to the supersession of 32 senior judges.
•  Supersession itself is perceived as a threat to an independent judiciary
• Seniority combined with merit is the sacrosanct criteria for promotion in the judiciary.
• New CJI should secure the trust of members of his collegium to fill the backlog of 411 vacancies across high courts and six vacancies in the SC.

Consider the question “What are the various structural issues faced by the judiciary in India? Suggest the measures to deal with them.”

A greater number of women in the Supreme Court would eventually lead to a woman CJI. This would be a gratifying change, which may mark the beginning of a new era of judicial appointments.

Need to address the systemic issues plaguing the judiciary

Prelims level: Article 50, Article 124

Mains level: Paper 2- Challenges facing judiciary in India

The article highlights the issues facing the judiciary in India and emphasises the need for addressing these issues.

Separating judiciary from the executive

• Today, the judiciary, especially the SC, is called upon to decide a large number of cases in which the government has a direct interest.
• These can be politically sensitive cases too.
• The framers of the Constitution understood the importance of the oath of office of judges of the Supreme Court of India (SC) and carefully designed its language.
• The words, “without fear or favour” to “uphold the constitution and the laws” are extremely significant and stress the need for a fiercely independent court.
• Article 50 of the Constitution provides: “The State shall take steps to separate the judiciary from the executive in the public services of the State.”

Master of roaster issue

• The Chief Justice of India is the first amongst the equals but by the virtue of his office assumes significant powers as the Master of the Roster to constitute benches and allocate matters.
• The SC has re-affirmed this position in a rather disappointing decision in Campaign for Judicial Accountability and Reforms v. Union of India, (2018) .
• The result has been catastrophic.
• Many matters were either treated casually or deflected for no reason from serious hearing.

Accountability from legislature and executive

• The SC is expected to seek strict accountability from the legislature and executive and any infraction of the Constitution and laws must be corrected.
• Yet, this is not happening.
• A country of billion-plus needs its highest court to stand for the people, not seemingly for the executive of the day.

Inherent and fundamental challenges

• The judiciary is besieged by inherent and fundamental challenges.
• Millions of pending cases, quality of judges and their decisions, organisational issues and its integrity and impartiality, need urgent attention.
• Yet, in the last two decades precious little has been done.
• Justice is eluding the common man, including the vulnerable sections of society.
• The new Chief Justice must seriously introspect and free himself of the bias in constituting benches and allocating cases and take concrete steps to revitalise the administration of justice.
• Only then will the rule of law be restored and the Constitution served.

Consider the question “Examine the inherent and fundamental challenges faced by the judiciary in India. Suggest the measures to deal with these challenges.” 

The Chief Justice of India on account of the position he holds as paterfamilias of the judicial fraternity, was suspected by none other than Dr B R Ambedkar. Let us hope the new Chief Justice makes serious efforts to prove otherwise.

SC paves way for appointment of ad-hoc judges in HCs

Prelims level: Article 224A

Mains level: Paper 2- Appointment of retired judges in the High Court under Article 224A

Appointment of retired judges under Article 224A

• The Supreme Court cleared the way for appointment of retired judges as ad-hoc judges in High Courts under Article 224A of the Constitution.
• The court ruled that the Chief Justice of a High Court may initiate the process of recommending a name if the number of judges’ vacancies is more than 20 per cent of the sanctioned strength.
• The court said the appointments can follow the procedure laid down in the Memorandum of Procedure for appointment of judges.
• The move will help to deal with mounting backlog of cases.
• Since the nominees have been judges before, the need to refer the matter to the IB or other agencies would not arise, shortening the time period.

Back2Basics: About Article 224A

• It allows the Chief Justice of a High Court to allow a retired judge of any High Court to sit and act as the judge of the High Court for that State.
• Previous consent of the President is necessary.
• The acting retired judge would be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court.
• This Article was not part of the Constitution of India, 1950. It was inserted by the Constitution (Fifteenth Amendment) Act, 1963.

Supreme Court sets timeline for Govt to clear judges’ names

Prelims level: Article 217 of Indian Constitution

Mains level: Paper 2- SC sets timeline to Centre to clear names recommended by the Centre

Why the timeline

• The Supreme Court laid down a timeline for the Centre to clear names recommended by the High Court Collegiums.
• The Bench noted that there are almost 40% vacancies in the High Courts, with many of the larger High Courts working under 50% of their sanctioned strength.
• Against the sanctioned strength o f 1,080 High Court Judges, 664 have been appointed but 416 vacancies remain. 
• The Bench rejected the contention that laying down a timeline “would be contrary to” certain “observations made in the Third Judges case ”, saying the “observations” referred to “deal with the judicial review of a particular appointment and not such aspects of the appointment process like delay”.

The timeline

• The Intelligence Bureau (IB) should submit its report/ inputs within 4 to 6 weeks from the date of recommendation of the High Court Collegium, to the Central Government.
• It would be desirable that the Central Government forward the file(s)/ recommendations to the Supreme Court within 8 to 12 weeks from the date of receipt of views from the State Government and the report/ input from the IB.
• It would be for the Government to thereafter proceed to make the appointment immediately on the aforesaid consideration and undoubtedly, if Government has any reservations on suitability or in public interest, within the same period of time it may be sent back to the Supreme Court Collegium with the specific reasons for reservation recorded.
• If the Supreme Court Collegium, after consideration of the aforesaid inputs, still reiterates the recommendation(s) unanimously…, such appointment should be processed and appointment should be made within 3 to 4 weeks.

Supreme Court Portal for Assistance in Court’s Efficiency (SUPACE)

Prelims level: SUOPACE

The Supreme Court has unveiled its Artificial Intelligence (AI) portal SUPACE, designed to make research easier for judges, thereby easing their workload.

• A pet project of the former Chief Justice of India S A Bobde, the SUPACE is a tool that collects relevant facts and laws and makes them available to a judge.
• The Supreme Court’s system is not designed to take decisions, but only to process facts and to make them available to judges looking for input for a decision.
• The CJI had then said that AI is to the intellect, what muscle memory is to the mind.

Its’ utility

• SUPACE will produce results customized to the need of the case and the way the judge thinks.
• This will be time-saving. It will help the judiciary and the court in reducing delays and pendency of cases.
• AI will present a more streamlined, cost-effective and time-bound means to the fundamental right of access to justice.
• It will make the service delivery mechanism transparent and cost-efficient.

Issues with Master of the Roaster power of CJI

Prelims level: Master of the Roaster

Mains level: Paper 2- Implications of the Master of Roaster power for the independence of the judiciary

CJI’s power as Master of Roaster and issues with it

• The Supreme Court recently closed the proceedings enquiring into a conspiracy to threaten the independence of the judiciary on the basis of sexual harassment allegations against the former CJI.
• The singular power of the CJI as the Master of the Roster – i.e., the vests exclusive discretion in the Chief Justice to constitute benches and allocate cases.
• While the CJI’s other powers such as recommending appointments to constitutional courts are shared with other senior judges, the power of Master of the Roster is enjoyed without scrutiny.
• This power enabled Justice Gogoi to institute suo motu  proceedings despite being an accused; label the case as a matter of judicial independence; and preside over it.
• This power lay at the heart of the controversy surrounding the proceedings the Court has now closed.

Implications for independence of judiciary

• From the standpoint of judicial independence, the Master of the Roster power makes the CJI’s office a high stakes one.
• It makes the CJI the sole point of defence of the Court against executive interference.
• However, this has a flip side.
• With the CJI as the sole Master of the Roster, any executive seeking to influence the Supreme Court needs only a pliant CJI.
• Yet, the Supreme Court has been reluctant to dilute this power.
• In  Asok Pande v. Supreme Court of India  (2018), a three-judge bench of the Court held that Master of the Roster is the CJI’s exclusive power.
• Thereafter, a two-judge bench in  Shanti Bhushan v. Supreme Court of India  (2018) rejected the plea that the Master of the Roster should be interpreted as the collegium.

Need for the reforms

• The collegium system has failed to keep executive interferences at bay from the Supreme Court.
• This is for two reasons:
• First, as Justice Gogoi’s case shows, there is an attractive lure of post-retirement jobs.
• Second, as the privilege of Master of the Roster shows, the CJI’s allocation of cases is an unchecked power.
• The continuing project of judicial reforms should then address these two issues.
• A cooling-off period between retirement and a post-retirement appointment has often been suggested as a way to deal with the first problem.
• For the second, the power of Master of the Roster needs to be diversified beyond the CJI’s exclusive and untrammelled discretion.

Consider the question “What are the issues with the Master of the Roaster power of the Chief Justice of India? Suggest the ways to deal with the issue.” 

We need to carry out these reforms make the judiciary less prone to interference from the executive.

Appointment of the Law Commission

Prelims level: Law Commission

Mains level: Law Commission and its function

The Supreme Court has asked the Home and Law Ministries to explain the nearly three-year-long lapse in making appointments to the Law Commission.

Try this PYQ: Q.The power to increase the number of judges in the Supreme Court of India is vested in (a) The President of India (b) The Parliament (c) The Chief Justice of India (d) The Law Commission

• The posts of Chairperson and Members have been vacant ever since the 21st Law Commission under the former Supreme Court judge, Justice B.S. Chauhan completed its tenure in August.
• The government approved the constitution of the 22nd Law Commission on February 19 last.
• However, it has not appointed the Chairperson and Members to date.

What is the Law Commission?

• It is an executive body established by an order of the Government of India. The first law commission of independent India was established post Independence in 1955

Composition

• a full-time Chairperson;
• four full-time Members (including Member-Secretary)
• not more than five part-time Members.
• It shall also undertake studies and research for bringing reforms in the justice delivery systems for elimination of delay in procedures, speedy disposal of cases, reduction in the cost of litigation, etc.

The Law Commission of India shall, inter-alia: –

• identify laws that are no longer needed or relevant and can be immediately repealed
• examine the existing laws in the light of DPSP and Preamble
• consider and convey to the Government its views on any subject relating to law and judicial administration that may be specifically referred to it by the Government through Ministry of Law and Justice (Department of Legal Affairs);
• Consider the requests for providing research to any foreign countries as may be referred to it by the Government through the Ministry of Law and Justice (Department of Legal Affairs);
• take all such measures as may be necessary to harness law and the legal process in the service of the poor;
• revise the Central Acts of general importance so as to simplify them and remove anomalies, ambiguities, and inequities

TN Governor to decide on Ex-PM assassin Pardon

Mains level: Capital punishment

Tamil Nadu Governor would take a decision as per the Constitution in the next three or four days on the plea for release filed by A.G. Perarivalan, who is undergoing life imprisonment for the assassination of former PM Rajiv Gandhi in 1991.

Give your personal views in favour and against Capital Punishment in the comment box.

• The court noted in its short order that the Solicitor General submitted that the application filed by the petitioner Perarivalan under Article 161 of the Constitution.
• The TN State Cabinet had earlier made the recommendation to remit the life sentences of seven convicts, including Perarivalan in September 2018.
• The new turn of events when the Additional Solicitor General for the Centre, had argued recently that the pleas for pardon and release should go to the President instead of the Governor.

What does Pardon mean?

Why need a pardon, what does article 161 say.

• Article 161 of the Constitution provides the Governor with the power to remit or commute the sentence of any prisoner.
• The Governor’s decision will be subject to judicial review by the constitutional courts.

Supreme court’s observations

• The Constitution Bench in 2015, in a majority decision, had held that the States cannot unilaterally remit the sentences of life convicts in cases investigated by a Central agency under a Central law.
• The assassination case was probed by the CBI.
• In compliance with the 2015 verdict, the Tamil Nadu government wrote to the Centre in 2016, proposing the grant of remission to the convicts. The State wanted the Centre to concur.
• After a wait of over two years, the Centre rejected the State’s proposal, saying this was an unparalleled act in the annals of crimes committed in this country.

Arguments in Perarivalan’s petition seeking pardon

• Perarivalan had been pleading for release citing that he was 19 when he was arrested.
• He was the only male child of his parents, there were no records of criminal antecedents, and that he had excellent conduct in his entire prison life.
• His petition also cited UG and PG degrees, and that he was the university topper, Gold medalist in diploma in DTP, and that he completed more than eight diploma and certificate courses during his prison term.
• His probation officer gave a report about lapses in recording his confession statement that handed out maximum punishment in his case.

Basis of his innocence

• Perarivalan cannot be called innocent before the law as he continues to be a convicted prisoner serving imprisonment.
• He was accused of having bought two battery cells for Sivarasan, the LTTE man who masterminded the conspiracy.
• He was sentenced to death based on this crucial confession statement.

Significance of the convicts’ release

• The release of seven convicts is a demand raised by not only the ruling party of TN but the main opposition too.
• All TN politicians voiced that the judiciary should be able to reform and let them live as good citizens to uphold the high values of reformatory justice and restitution.

Can courts stay laws made by the legislature?

Prelims level: Judicial Review

Mains level: Separation of Power doctrine

The Supreme Court’s recent order staying the implementation of three farm laws has been criticised and is seen as violative of the doctrine of Separation of Powers.

Q. Discuss the role of judicial activism in parliamentary democracy in India.

What is the issue?

• In particular, many have questioned the suspension of action under the laws as such interim orders are extremely rare.
• The court did not accept the Attorney General’s argument that laws made by the legislature should not be ordinarily stayed, as there is a presumption of constitutionality in favour of the laws.

SC’s justification

• This court cannot be said to be completely powerless to grant stay of any executive action under a statutory enactment, the Bench observed in its order.
• This means that it was apparently making a distinction between staying a law and staying its implementation or any action under it.
• Some may argue, however, that the effect remains the same, as the order operates as a stay on the government invoking its provisions.

Previous such orders

• The court also cited an order passed by another Bench of the Supreme Court in September 2020 on the Maratha reservation issue.
• It directed that admissions to educational institutions for 2020-21 and appointments to posts under the government shall be made without reference to the reservation provided under the relevant legislation.

Farms laws case is different

• In the Maratha reservation case, the Bench said interim orders could be passed if an enactment is ex facie unconstitutional or contrary to the law laid down by the Supreme Court.
• It noted that the quota violated the 50% ceiling mentioned in the Indra Sawhney case (1992) and that the Maharashtra government had not shown any extraordinary situation to justify exceeding the limit.
• Here, the Court observed that a stay on the farm laws’ implementation may assuage the hurt feelings of farmers and encourage them to come to the negotiating table.

What are the court’s powers in regard to staying enacted law?

• Under the broad framework of judicial review, the Supreme Court and High Courts have the power to declare any law unconstitutional.
• This is on grounds if a law is contrary to any provision of the Constitution or it violates any of the fundamental rights.
• Another ground is invalidity if the law is repugnant to a central law on the same subject or has been enacted without legislative jurisdiction.

Criticisms of the move

• The main criticism is that suspending a law made by the legislature goes against the concept of separation of powers.
• Courts are expected to defer to the legislature’s wisdom at the threshold of a legal challenge to the validity of a law.
• The validity of law ought to be considered normally only at the time of final adjudication, and not at the initial stage.
• The second principle is that there is a presumption that every law enacted by any legislature is constitutional and valid.
• The onus is on those challenging it to prove that it is not. Therefore, courts are circumspect when hearing petitions seeking suspension of law pending a detailed adjudication.

Various precedents cited by the Court

• Case law suggests that in some cases, High Courts indeed stayed the operation of some laws. However, the Supreme Court took a dim view.
• In 1984, the top court set aside an interim stay granted against the operation of a municipal tax (Siliguri Municipality & Others vs Amalendu Das & Others).
• In 2013, it removed the stay on some provisions of and regulations under the Cigarettes and Other Tobacco Products Act, 2003 (Health for Millions Trust vs Union of India).
• It then held that the rules were ex facie unconstitutional and the factors, like, the balance of convenience, irreparable injury and public interest are in favour of passing an interim order.

Back2Basics: Judicial Activism

• The term “Judicial Activism” refers to the court’s decision, based on the wisdom that does not go rigidly within the text of the statute passed by the legislature.
• It goes in favour of the use of judicial power broadly to provide remedies to the wide range of social wrongs for ensuring proper justice.
• The judiciary performs an active role to uphold constitutional values and ethics under the constitutional pattern.
• For addressing civic dilemmas, the judiciary applies its intellect and creativity to fill the gap between the positive and normative aspects of legislations.
• For this reason, judicial activism has emerged.

Protecting Article 32

Prelims level: Article 32

Mains level: Paper 2- Recourse to Article 32 and related issues

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

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

Recourse under Article 32 is not absolute

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

New facets of Article 32

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

Comparing Article 226 and Article 32

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

Need for effective bail system

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

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

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

Article 32 and the Supreme Court

Prelims level: Writ jurisdiction, Art. 32, 225

Mains level: Writ Jurisdiction

A Supreme Court bench headed by CJI has observed that it is “trying to discourage” individuals from filing petitions under Article 32 of the Constitution.

Try this PYQ: Q.Which of the following is included in the original jurisdiction of the Supreme Court? Dispute between the Government of India and one or more States A dispute regarding elections to either House of the parliament or that of Legislature of a State A dispute between the Government of India and Union Territory A dispute between two or more States. Select the correct answer using the codes given below: (a) 1 and 2 (b) 2 and 3 (c) 1 and 4 (d) 3 and 4

What is Article 32?

• Article 32 deals with the ‘Right to Constitutional Remedies’, or affirms the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred in Part III of the Constitution.
• It is one of the fundamental rights listed in the Constitution that each citizen is entitled.
• It states that the Supreme Court “shall have the power to issue directions or orders or writs for the enforcement of any of the rights conferred by this Part”.
• The right guaranteed by this Article “shall not be suspended except as otherwise provided for by this Constitution”.
• Dr B R Ambedkar has called it the very soul and heart of the Constitution. It cannot be suspended except during the period of Emergency.

Rights protected by A32

• The article is included in Part III of the Constitution with other fundamental rights including to Equality, Freedom of Speech and Expression, Life and Personal Liberty, and Freedom of Religion.
• Only if any of these fundamental rights is violated can a person can approach the Supreme Court directly under Article 32.

Types of Writs under it

Both the High Courts and the Supreme Court can be approached for violation or enactment of fundamental rights through five kinds of writs:

• Habeas corpus (related to personal liberty in cases of illegal detentions and wrongful arrests)
• Mandamus — directing public officials, governments, courts to perform a statutory duty;
• Quo Warranto — to show by what warrant is a person holding public office;
• Prohibition — directing judicial or quasi-judicial authorities to stop proceedings which it has no jurisdiction for; and
• Certiorari — re-examination of an order given by judicial, quasi-judicial or administrative authorities.
• In civil or criminal matters, the first remedy available to an aggrieved person is that of trial courts, followed by an appeal in the High Court and then the Supreme Court.
• When it comes to violation of fundamental rights, an individual can approach the High Court under Article 226 or the Supreme Court directly under Article 32.

Supreme Court’s recent observations

• The observation came during the hearing of a petition seeking the release of a journalist, who was arrested while reporting on an alleged gangrape and murder.
• The court asked why the petitioners could not go to the High Court first.
• In another case invoking Article 32, a Nagpur-based man was arrested for alleged defamatory content against Maharashtra CM, the same Bench directed him to approach the High Court first.

Mains level: Judicial conduct and associated issues

A Justice of the Supreme Court has recused himself from hearing a petition that sought action against the Andhra Pradesh CM for levelling political allegations against an AP High Court judge.

• It is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case, he ruled.

Pardoning Powers of Governor

Prelims level: Article 161

Mains level: Pardoning power of president vs. governor

The Supreme Court has recently said that the investigation into the conspiracy behind Ex-PMs assassination in 1991 need not deter the Governor from deciding the plea for pardon of convicts.

What did the court say exactly?

• The court made it clear that it was reluctant to exercise its jurisdiction when the Governor was already seized of convict’s plea for a pardon under Article 161 of the Constitution.

Try this PYQ now: Q.Which of the following are the discretionary powers given to the Governor of a State? Sending a report to the President of India for imposing the President’s rule Appointing the Ministers Reserving certain bills passed by the State Legislature for consideration of the President of India Making the rules to conduct the business of the State Government Select the correct answer using the code given below: (a) 1 and 2 only (b) 1 and 3 only (c) 2, 3 and 4 only (d) 1, 2, 3 and 4

• Article 161 deals with the Pardoning Power of the Governor.
• The Governor can grant pardons, reprieves, respites and remissions of punishments or suspend, remit and commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the state extends.
• The Governor cannot Pardon a Death Sentence. (The President has the power of Pardon a death Sentence).
• The Governor cannot grant pardon, reprieve, respite, suspension, remission or commutation in respect to punishment or sentence by a court-martial. However, the President can do so.

Back2Basics:

• Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty-year rigorous imprisonment to ten years.

Nyay Kaushal E-resource Centre

Prelims level: Nyay Kaushal Centre

Mains level: Transparent and accessible judicial proceedings

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

Must read edition:

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

Nyay Kaushal Centre

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

It’s working

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

Why need such a mechanism?

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

Live-streaming of Courts

Prelims level: Not Much

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

Why such demands?

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

Live-streaming of Court

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

Why there should be live-streaming?

• More transparency: It will encourage the principle of open court and reduce dependence on second-hand views. It will effectuate the public’s right to know. 

Issues with live-courts

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

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

(1) The question of access:

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

(2) The degree of comfort:

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

(3) The idea of open courts itself:

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

(4) The question of Privacy and Data Security:

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

Still, digital records are necessary

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

Best examples

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

Significance of open-courts

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

Various moves for accessibility

• Over the last few years, the Supreme Court has taken steps to make justice more accessible. The Court started providing vernacular translations of its judgments.
• Non-accredited journalists were permitted to live-tweet court proceedings. During the lockdown, journalists have been permitted to view virtual court proceedings in real-time.
• There should be live-streaming cases of constitutional and national importance as a pilot project, including Constitution Bench cases.
• Matrimonial cases and those involving national security could be excluded.
• There must be a reasonable time-delay (say 10 minutes) between the live court proceedings and the broadcast to ensure any information which ought not to be shown, as directed by the court, can be edited from being broadcast.
• The judiciary must also employ a press officer to liaise with the media, and issue simultaneously one or two page summaries of its judgments to facilitate greater public understanding.
• There has to be a greater reliance on written briefs and the significance accorded to them, time limits for oral arguments, and a greater emphasis on preparation in advance.

What is Queen’s Counsel?

Prelims level: Queens Council

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

Queen’s Counsel

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

Judiciary and challenges ahead

Mains level: Paper 2-Judiciary and relations with executive

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

Relations with executive

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

SC’s perceived reluctance  to question executive after 2017

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

3 questions over the SC’s role

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

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

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

Kesavananda Bharati: The petitioner who saved democracy

Prelims level: Features of Basic structure doctrine

Mains level: Evolution of the basic structure doctrine

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

Who was Kesavananda Bharati?

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

What was his case?

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

What was the case about?

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

What did the court decide?

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

What is the basic structure doctrine?

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

What was the fallout of the verdict?

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

Significance of the Judgement

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

Office of the Attorney General and its role in contempt cases

Prelims level: AGI: Role, powers and function

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

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

What is the case for prior approval in Contempt Cases?

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

Attorney General of India (AGI)

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

Functions and duties

• The AGI is necessary for advising the Government of India on legal matters referred to them.
• They also perform other legal duties assigned to them by the President.
• The AGI has the right of audience in all Courts in India as well as the right to participate in the proceedings of the Parliament, though not to vote.
• The AGI appears on behalf of Government of India in all cases (including suits, appeals and other proceedings) in the Supreme Court in which GoI is concerned.
• They also represent the Government of India in any reference made by the President to the Supreme Court under Article 143 of the Constitution.
• The AG is assisted by a Solicitor General and four Additional Solicitors General.
• The AG can accept briefs but cannot appear against the Government.
• They cannot defend an accused in the criminal proceedings and accept the directorship of a company without the permission of the Government.
• The AG is to be consulted only in legal matters of real importance and only after the Ministry of Law has been consulted.
• All references to the AG are made by the Law Ministry.

Limitations

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

Global precedence

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

Mulgaonkar principles in Contempt Cases

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

Try this MCQ: Q. The Mulgaonkar principles recently seen in news are related to: Diplomacy/ Economy/ Judiciary/ Environment

The Mulgaonkar principles

• S Mulgaonkar v Unknown (1978) is a case that led to a landmark ruling on the subject of contempt.
• By a 2:1 majority, the court held Mulgaonkar not guilty of contempt although the same Bench had initiated the proceedings.
• Justices P Kailasam and Krishna Iyer formed the majority going against then CJI M H Beg.
• Justice Iyer’s counsel of caution in exercising the contempt jurisdiction came to be called the Mulgaonkar principles.
• An article by A G Noorani in the newspaper about certain judicial decisions during the Emergency period, especially the Habeas Corpus case, had displeased then CJI Beg.
• The Habeas Corpus case, often referred to as the “Supreme Court’s darkest hour” upheld the detention law, citing that even the right to life can be suspended during an emergency.
• Justices A N Ray, Beg, Y V Chandrachud and P N Bhagwati formed the majority while Justice H R Khanna was the sole dissenter.

What did the ruling say?

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

Judiciary and the challenges ahead

Prelims level: Not much.

Mains level: Paper 2- Role of judiciary in democracy and challenges it faces

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

Challenges to democracy

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

Role and challenges judiciary faces

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

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

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

Private: Contempt of Court

Recently, the Supreme Court of India suo moto initiated the proceedings for criminal contempt of court against lawyer-activist Prashant Bhushan for his tweet criticising the current Chief Justice of India and the role of some Chief Justices of India in the last six years.

What is Contempt of Court?

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

How did the concept of contempt come into being?

What is the statutory/constitutional basis for contempt of court.

• Article 129: Grants Supreme Court the power to punish for contempt of itself.
• Article 142(2): Enables the Supreme Court to investigate and punish any person for its contempt.
• Article 215: Grants every High Court the power to punish for contempt of itself.
• The Contempt of Courts Act 1971 was amended in 2006 to include the defence of truth under Section 13 of the original legislation. Implying that the court must permit justification by truth as a valid defence if it is satisfied that it is in the public interest.

The law codifying contempt classifies it as civil and criminal.

• Civil contempt is fairly simple. It is committed when someone willfully disobeys a court order or wilfully breaches an undertaking given to the court.
• Criminal contempt is more complex: 

It consists of three forms:

• (a) words, written or spoken, signs and actions that “scandalise” or “tend to scandalise” or “lower” or “tends to lower” the authority of any court
• (b) prejudices or interferes with any judicial proceeding and
• (c) interferes with or obstructs the administration of justice.

Need for Contempt power

• To insulate the judiciary from unfair attacks and prevent a sudden fall in the judiciary’s reputation in the public eye.
• It helps judges to do their duties of deciding cases without fear, favour, affection or ill will.

Issues with Contempt power

1.such a power is not in consonance with the constitutional scheme of india.

• The basic principle in a democracy is that the people are supreme.
• Once this concept of popular sovereignty is kept firmly in mind, it becomes obvious that the people of India are the masters and all authorities (including the courts) are their servants.

II.International example

• In many countries, contempt jurisdiction is regarded as archaic and exercised sparingly.
• In the US, courts no longer use contempt to silence comments on judges or legal matters.
• The First Amendment to the US Constitution forbids imposition of contempt sanctions on a newspaper.
• The concept of contempt is a centuries-old British law abolished in 2013.

III.In a free society criticism of the judiciary is inevitable.

• Judges have vast powers and people will not remain silent about the exercise of such powers.
• Just as decisions of other branches of government attract criticism, judicial decisions would also invite the same.

IV.Subjective

• For example, the assessment of the ground of scandalizing the court, depends, to a great degree, on the temperament and preference of the judge. What could be contempt to Judge A may not be contempt to Judge B.
• The test to determine whether an act amounts to contempt of court or not is this: does it make the functioning of the judges impossible or extremely difficult? If it does not, then it does not amount to contempt of court even if it is harsh criticism.
• The law of contempt should be employed only to enable the court to function, not to prevent criticism.
• It’s time for the legislature to take steps to amend the Contempt of Court Act and eschew definition of criminal contempt.
• Judiciary should balance two conflicting principles, ie freedom of expression, and fair and fearless justice.
• Judges deliver justice, they do not embody it .
• They should never forget their Court is supreme because it’s final not because it’s infallible .
• When they lapse they can be criticised, but of course , politely and fairly.

Explained: What is Contempt of Court?

Mains level: Contempt of Court and associated issues

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

Try this question for mains: Q.What is Contempt of Court? Discuss, how free speech can lead to the contempt of courts?

• Civil contempt is fairly simple. It is committed when someone willfully disobeys a court order or wilfully breaches an undertaking given to the court. However, Criminal contempt is more complex.
• The Act was amended in 2006 to introduce truth as a valid defence if it was in the public interest and was invoked in a bonafide

Issues with contempt of court

Prelims level: Contempt of court

Mains level: Paper 2- Contempt of court and issues

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

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

Issues in India

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

Lessons from other democracies

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

Approach of Indian judiciary

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

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

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

Making justice accessible through live streaming

Prelims level: Right to access justice under Article 21

Mains level: Paper 2- Live-streaming of proceeding to make justice accessible

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 confidenc e 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.

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

India stands alone

• 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.”

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.

Rule of Law Index and India

Prelims level: Rule of Law Index

Mains level: Rule of Law in India

The Supreme Court has asked the government to treat a writ petition for setting up expert panels to boost India’s prospects in the Rule of Law Index.

Note the various factors/sub-indices on which the index is measured. There can be a direct question on these in line with: Q. Which one of the following is not a sub-index of the World Bank’s ‘Ease of Doing Business Index’? CSP 2019 (a) Maintenance of law and order (b) Paying taxes (c) Registering property (d) Dealing with construction permits

Why in news again?

• The cause of action for the petition accrued when the World Justice Project ranked India in the 69th position in its Rule of Law Index.
• India has never been ranked even among top 50 in the Index, but successive governments did nothing to improve the international ranking of India, said the petition.
• Poor rule of law has a devastating effect on the right to life, liberty, economic justice, fraternity, individual dignity and national integration.

What is the Rule of Law Index?

• The Rule of Law Index is a quantitative assessment tool by the World Justice Project (WJP) designed to offer a detailed and comprehensive picture of the extent to which countries adhere to the rule of law in practice.
• It measures countries’ rule of law performance across eight factors:

(1) Constraints on Government Powers, (2) Absence of Corruption, (3) Open Government, (4) Fundamental Rights, (5) Order and Security, (6) Regulatory Enforcement, (7) Civil Justice, and (8) Criminal Justice

WJP definition of Rule of Law

The World Justice Project defines the rule of law system as one in which the following four universal principles are upheld:

• The government and its officials and agents are accountable under the law.
• The laws are clear, publicized, stable and fair, and protect fundamental rights, including the security of persons and property.
• The process by which the laws are enacted, administered, and enforced is accessible, efficient, and fair.
• Justice is delivered by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources and reflect the makeup of the communities they serve.

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

Prelims level: NALSA

Mains level: Need for prison reforms in India

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.

[Burning Issue] Need of Prison Reforms

Judiciary’s tryst with technology

Mains level: Paper 2- Adoption of technology by judiciary in its functioning.

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.
• O ne 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”

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

Mains level: Basic structure doctrine

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.

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.

Prelims level: Various article to ensure the independence of judiciary.

Mains level: Paper 2- Do you agree with the view that post-retirement appointment of the judges undermine the confidence in judiciary? Give suggestions to deal with the problem.

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.

• 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.

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.

Private: New Rules To Prescribe Uniform Norms For Appointment Of Members To Tribunals

What is open court system.

Prelims level: Open Courts, Art. 142

Mains level: Transparency in judicial functioning

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.
• 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..
• 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

Ayyappa and the Court

Mains level: Paper 2- Need for reforms in the administrative functioning of the Supreme Court.

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.

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.

The Hidayatullah example

Mains level: Paper 2- Requirement of cooling off period for accepting the government office post-retirement by the judges to ensure the independence of judiciary.

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.
• 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”.
• 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”.
• 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

• 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.
• The Commission’s recommendations were never implemented.

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.

Right of an accused to be defended

Prelims level: Right of an accused to be defended

Mains level: Professional ethics for Lawyers (Paper IV)

Recently the Karnataka High Court observed that it is unethical and illegal for lawyers to pass resolutions against representing accused in court.  This is not the first time that bar associations have passed such resolutions, despite a Supreme Court ruling that these are “against all norms of the Constitution, the statute and professional ethics”.

What does the Constitution say about the right of an accused to be defended?

• Article 22(1) gives the fundamental right to every person not to be denied the right to be defended by a legal practitioner of his or her choice.
• Article 14 provides for equality before the law and equal protection of the laws within the territory of India.
• Article 39A, part of the DPSP, states that equal opportunity to secure justice must not be denied to any citizen by reason of economic or other disabilities, and provides for free legal aid.

What has the Supreme Court said about such resolutions by bar associations?

• The Supreme Court referred to writer Thomas Paine, who had been tried for treason in England in 1792.
• Thomas Erskine, Attorney General for the Prince of Wales, was warned of dismissal if he defended Paine, but still took up the brief, saying: “… If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge…”
• The Supreme Court cited other historical examples of accused being defended — revolutionaries against British rule; alleged assailants of Mahatma Gandhi and Indira Gandhi; Nazi war criminals at the Nuremberg trials.

A matter of professional ethics

• The Supreme Court ruled that such resolutions are wholly illegal, against all traditions of the bar and against professional ethics.
• Every person however wicked, criminal, perverted or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly and it is the duty of the lawyer to defend him.
• It said such resolutions were against all norms of the Constitution, the statute and professional ethics, called these a disgrace to the legal community, and declared them null and void.

How are the professional ethics of lawyers defined?

• The Bar Council of India has Rules on Professional Standards, part of the Standards of Professional Conduct and Etiquette to be followed by lawyers under the Advocates Act.
• An advocate is bound to accept any brief in the courts or tribunals, at a fee consistent with his standing at the Bar and the nature of the case.
• The Rules provide for a lawyer refusing to accept a particular brief in “special circumstances”.
• Last year, The Uttarakhand HC clarified that these special circumstances refer to an individual advocate who may choose not to appear in a particular case, but who cannot be prohibited from defending an accused by any threat of removal of his membership of the bar association.

[pib] International Judicial Conference, New Delhi

Prelims level: International Judicial Conference

Mains level: Highlights of the conference

The President of India delivered the valedictory address at the International Judicial Conference being organised by the Supreme Court of India, in New Delhi.

About the Conference

• The Conference was organized by the Supreme Court of India.
• The theme of the Conference was ‘Judiciary and the Changing World’.

Important Topics of discussion at the Conference included :

• Gender Justice,
• Contemporary Perspectives on Protection of Constitutional Values,
• Dynamic Interpretations of the Constitution in a Changing World,
• Harmonization of Environment Protection vis-à-vis Sustainable Development and
• Protection of Right to Privacy in the Internet Age

Other excerpts:

 “Just-World” Hypothesis

• The “Just World” fallacy is associated with the actions of bringing fair actions towards education, health, gender equality and other social issues.
• The Conference introduced the “Just World” concept in the Judicial System of India.
• By this it aims to take the judicial system of the country to every citizen irrespective of their gender.
• Also, it aimed to bring upon gender equality in other crucial areas where women have still not earned their recognition, especially the areas of mining and military.

[pib] 22nd Law Commission of India

Prelims level: 22nd Law Commission of India

Mains level: Various functions of the LCI

The Union Cabinet has approved Twenty-second Law Commission of India for a period of three years from the date of publication of the Order of Constitution in the Official Gazette.

The Law Commission of India shall, inter-alia: –

• identify laws which are no longer needed or relevant and can be immediately repealed
• revise the Central Acts of general importance so as to simplify them and remove anomalies, ambiguities and inequities;

Explained: Recusals by Judges

Mains level: Significance of Judiciary: Impartial and independent of all external pressures

Recently a Supreme Court judge recused himself from hearing a petition filed against the government’s move to charge Omar Abdullah under the Public Safety Act.  The case was finally heard by another bench.

Why Judges need recusal?

Should the reasons be put on record?

• In his separate opinion in the NJAC judgment in 2015, Justice (now retired) Kurian Joseph, who was a member of the Constitution Bench, highlighted the need for judges to give reasons for recusal as a measure to build transparency.
• It is the constitutional duty, as reflected in one’s oath, to be transparent and accountable, and hence, a judge is required to indicate reasons for his recusal from a particular case, Justice Kurian wrote.
• One of his companion judges on the Constitution Bench, Justice (retired) Madan B. Lokur, agreed that specific rules require to be framed on recusal.
• The two judges were referring to senior advocate Fali Nariman’s plea to Justice J.S. Khehar, who was then in line to be the next Chief Justice, to recuse himself.
• But Justice Khehar refused to recuse himself though he admitted that Mr. Nariman’s plea left him in an “awkward predicament”.
• Justice Khehar reasoned that he did not recuse himself for fear of leaving an impression that he was “scared”.

What happened in the Judge Loya and Assam detention centres cases?

• In 2018, petitioners in the Judge Loya case sought the recusal of Supreme Court judges, Justices A.M. Khanwilkar and D.Y. Chandrachud, from the Bench as they both hailed from the Bombay High Court.
• The case banked on the written statements of two judges from that High Court, both saying that Judge Loya’s death was from natural causes. The court refused the request and called it a “wanton attack”.
• Recusal, the court observed, would mean abdication of duty. Maintaining institutional civilities are distinct from the “fiercely independent role of the judge as adjudicator”, the court explained.
• In May 2019, in the middle of a hearing of a PIL filed by activist Harsh Mander about the plight of inmates in Assam’s detention centres, the then-Chief Justice Ranjan Gogoi was asked to recuse himself.
• In a lengthy order, Justice Gogoi said a litigant cannot seek recusal of the judge. “Judicial functions, sometimes, involve performance of unpleasant and difficult tasks, which require asking questions and soliciting answers to arrive at a just and fair decision.
• If the assertions of bias as stated are to be accepted, it would become impossible for a judge to seek clarifications and answers,” the court observed.

Explained: What is Mandamus?

Prelims level: Mandamus

Mains level: Writ Jurisdiction of SC and HC and their scope

• The Supreme Court has ruled that reservation in the matter of promotions in public posts is not a fundamental right, and a state cannot be compelled to offer the quota if it chooses not to.
• It ruled that there  is no fundamental right which inheres in an individual to claim reservation in promotions.
• Hence no mandamus can be issued by the court directing state governments to provide reservations,” the bench of Justices L Nageswara Rao and Hemant Gupta said.

What is ‘Mandamus’?

• Mandamus is among the “prerogative writs” in English common law — meaning the extraordinary writs or orders granted by the Sovereign when ordinary legal remedies are inadequate.
• These are habeas corpus, mandamus, prohibition, certiorari, and quo warranto.
• In India, the Supreme Court can issue prerogative writs under Article 32 of the Constitution, and the High Courts under Article 226.
• Mandamus literally means ‘we command’. When issued to a person or body, the writ of mandamus demands some activity on their part.
• It orders the person or body to perform a public or quasi-public duty, which they have refused to perform, and where no other adequate legal remedy exists to enforce the performance of that duty.

When is it used?

• The writ cannot be issued unless the legal duty is of public nature, and to whose performance the applicant of the writ has a legal right.
• The remedy is of a discretionary nature — a court can refuse to grant it when an alternative remedy exists.
• However, for enforcing fundamental rights, the alternative remedy argument does not hold as much weight, since it is the duty of the Supreme Court and the High Courts to enforce fundamental rights.
• When a public officer or government does an act that violates the fundamental right of a person, the court would issue a writ of mandamus against such authorities so that the person’s rights are not infringed.
• The writ can also be issued against inferior courts or other judicial bodies when they have refused to exercise their jurisdiction and perform their duty.
• Under Article 361, mandamus cannot be granted against the President or Governor of a State, “for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties”.
• The writ also cannot be issued against a private individual or body, except where the State is in collusion with the private party for contravening a provision of the Constitution or a statute.

[pib] National Judicial Pay Commission

Prelims level: Second National Judicial Pay Commission

Mains level: Judiciary instititutional issues

The Second National Judicial Pay Commission has filed its report covering the subject of Pay, Pension and Allowances in the Supreme Court.

Second National Judicial Pay Commission

• The Commission is headed by former Supreme Court judge P V Reddy.
• It was set up on the directions of the apex court in May 2017 during the hearing of the All India Judges Association case.

Key recommendations

• It has recommended the adoption of Pay Matrix which has been drawn up by applying the multiplier of 2.81 to the existing pay, commensurate with the percentage of increase of pay of High Court Judges.
• The highest pay which a District Judge (STS) will get, is Rs.2,24,100/-.

2)  Pension

• Pension at 50% of last drawn pay worked out on the basis of proposed revised pay scales is recommended w. e. f. 1-1-2016. The family pension will be 30% of the last drawn pay.
• Recommendation has been made to discontinue the New Pension Scheme (NPS) which is being applied to those entering service during or after 2004. The old pension system, which is more beneficial to be revived.

3) Allowances

• The existing allowances have been suitably increased and certain new features have been added. However, the CCA is proposed to be discontinued.
• Certain new allowances viz. children education allowance, home orderly allowance, transport allowance in lieu of pool car facility, has been proposed.

Gram Nyayalayas

Prelims level: Gram Nyayalayas

Mains level: Gram Nyayalayas and its jurisdiction

The Supreme Court has directed the states, which are yet come out with notifications for establishing Gram Nyayalayas, to do so within four weeks.

What are Gram Nyayalayas?

• Gram Nyayalayas were established for speedy and easy access to the justice system in the rural areas across the country.
• The Gram Nyayalayas Act came into force on October 2, 2009.
• In terms of Section 3(1) of the Act, it is for the State Governments to establish Gram Nyayalayas in consultation with the respective High Courts.
• The Act authorizes the Gram Nyayalaya to hold mobile court outside its headquarters.
• However, the Act has not been enforced properly, with only 208 functional Gram Nyayalayas in the country ( Sept. 2019) against a target of 5000 such courts.
• The major reasons behind the non-enforcement include financial constraints, reluctance of lawyers, police and other government officials.

Features of the Gram Nyayalayas

• Gram Nyayalaya are established generally at headquarter of every Panchayat at intermediate level or a group of contiguous panchayat in a district where there is no panchayat at intermediate level.
• The Gram Nyayalayas are presided over by a Nyayadhikari, who will have the same power, enjoy same salary and benefits of a Judicial Magistrate of First Class.
• Such Nyayadhikari are to be appointed by the State Government in consultation with the respective High Court.

Jurisdiction

• A Gram Nyayalaya have jurisdiction over an area specified by a notification by the State Government in consultation with the respective High Court.
• The Court can function as a mobile court at any place within the jurisdiction of such Gram Nyayalaya, after giving wide publicity to that regards.
• The Gram Nyayalayas have both civil and criminal jurisdiction over the offences and nature of suits specified in the First, Second and Third schedule of the Act.
• The pecuniary jurisdiction of the Nyayalayas are fixed by the respective High Courts.
• Appeals in criminal matter can be made to the Sessions Court in the respective jurisdiction and in civil matters to the District Court within a period of one month from the date of judgment.
• Gram Nyayalayas can follow special procedures in civil matters, in a manner it deem just and reasonable in the interest of justice.
• Civil suits are proceeded on a day-to-day basis, with limited adjournments and are to be disposed of within a period of six months from the date of institution of the suit.
• In execution of a decree, the Court can allow special procedures following rules of natural justice.
• Gram Nyayalayas allow for conciliation of the dispute and settlement of the same in the first instance.
• Gram Nyayalayas has been given power to accept certain evidences which would otherwise not be acceptable under Indian Evidence Act.

Curative Petition

Prelims level: Review Petition, Curative Petition

Mains level: Capital Punishment and its justification

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.

• 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.
• 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.

[oped of the day] Populist impulses and a question of judicial overreach

Prelims level: Nothing much

Mains level: Judicial Overreach

Op-ed of the day is the most important editorial of the day. This will cover a key issue that came in the news and for which students must pay attention. This will also take care of certain key issues students have to cover in respective GS papers.

Apart from independence from politics, the judiciary also needs independence from popular interest. These words were said by former Chief Justice of India (CJI) S.H. Kapadia. 

Judgements by the popular narrative

• A large number of judgements appear to have reinforced local populist narratives in India. 
• Recently, justice S.R. Sen of the Meghalaya High Court said in a ruling that “political leaders were too much in a hurry to get the independence… thus creating all the problems today” and “India , since [it] was divided on the basis of religion, should have also been declared as a Hindu country”.
• In the T.N. Godavarman versus Union of India case , the Supreme Court defined a ‘forest’ in the absence of a definition in the Forest Act and, in so doing,…it took over the governance of the forests in India.”

Judicial overreach

• Art 142 – The grandiose executive judgements seem to take charge of some aspects of the country’s governance. Article 142 of the Constitution makes this possible.
• Started with 1st amendment – The very first amendment of the Constitution in 1951 marked the beginning of a long-drawn battle between the executive and the judiciary. It took land reform statutes beyond the scope of judicial review. 
• Golaknath versus State of Punjab case – barred Parliament from curtailing any fundamental right assured by the Constitution.
• 24th amendment reversed the Golakhnath judgement. 
• Justice A.N. Ray who dissented in the Kesavananda Bharati case was made the CJI, superseding three senior judges. 
• Justice H.R. Khanna —the lone dissenter in a habeas corpus case during the 1975-77 Emergency, who was next in line to become the CJI—was superseded by justice M.H. Beg.
• Political past – seen in the above context, courts had to outdo their political masters and regain credibility. Supreme Court was in search of popular legitimacy. 
• PIL – The rule of locus standi was relaxed; technical barriers were removed; evidence could be gathered by a court-appointed commission, and lax procedural requirements gave way to deprofessionalized justice.  
• Positive – political vacuum is filled by the benevolence of the judiciary. 

Challenges with judicial overreach

• Cost > Gain – History is replete with examples where the costs of such judicial interventions have outweighed their gains. 
• This also resulted in large-scale deindustrialization of the city, as “green judges” ordered the relocation of 168 large industries, rendering thousands jobless. 
• Delhi’s vehicular pollution case led to the conversion of all public transport vehicles to CNG from diesel or petrol, resulting in a sudden drop in public transport supply and an increase in private vehicles.
• The rich benefit more – A World Bank working paper , Public Interest litigation In India Overreaching Or Underachieving? , Varun Gauri says that claimants from advantaged classes have a 73% probability of winning a fundamental rights claim, compared to 47% for non-advantaged classes. 
• The burden on the poor – We now have a disproportionately large financial burden on the original beneficiaries of well-meaning PILs—the poor and the marginalized. 
• Image of judges – we have judges with larger-than-life public images. 
• Distorted procedures – Procedural supremacy has suffered and doubts have arisen over the competence of our courts in assessing policy interventions.
• Guidelines on boundaries – The judiciary must evolve a set of guidelines that lays down a procedure in consonance with the executive. It should not delve into issues which are beyond its domain of expertise. 
• Expert group – The Supreme Court’s recently constituted in-house think tank, Centre for Research and Planning could be enlarged to encompass the academic rigour required for issues related to governance.

Judiciary should follow due standard operating procedures. It is not a question of merely achieving the desired outcomes— if a precedent of faulty means to achieve such ends is set, then the dignity of the institution could possibly end up being held hostage to the idiosyncrasies of a single judge at its helm.

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Challenges facing judiciary in India "EMPOWER IAS"

• Date: {{formatDate('Mon Apr 26 2021 16:19:14 GMT+0530 (India Standard Time)') }}
• By: Empower IAS
• For More Updates: Telegram

• The article highlights the issues facing the judiciary in India and emphasises the need for addressing these issues.

Separating judiciary from the executive

• Today, the judiciary, especially the SC, is called upon to decide a large number of cases in which  the government has a direct interest.
• These can be politically sensitive cases too.
• The framers of the Constitution understood the  importance of the oath of office of judges  of the Supreme Court of India (SC) and carefully designed its language.
• The words,  “without fear or favour”  to  “uphold the constitution and the laws”  are extremely significant and stress the need for a fiercely independent court.
• Article 50  of the Constitution provides: “The State shall take steps to  separate the judiciary from the executive  in the public services of the State.”

Master of roaster issue

• The Chief Justice of India is the first amongst the equals but by the virtue of his office assumes  significant powers as the Master of the Roster to constitute benches and allocate matters.
• The SC has re-affirmed this position in a rather disappointing decision in  Campaign for Judicial Accountability and Reforms v. Union of India, (2018) .
• The result has been catastrophic.
• Many matters were either treated casually or deflected for no reason from serious hearing.

Accountability from legislature and executive

• The SC is expected to seek strict accountability from the legislature and executive and any  infraction of the Constitution and laws must be corrected.
• Yet, this is not happening.
• A country of billion-plus needs its highest court to stand for the people, not seemingly for the executive of the day.

Inherent and fundamental challenges

• The judiciary is besieged by  inherent and fundamental challenges.
• Millions of pending cases, quality of judges and their decisions, organisational issues and its integrity and impartiality, need urgent attention.
• Yet, in the last two decades precious little has been done.
• Justice is eluding the common man, including the vulnerable sections of society.

Role and challenges judiciary faces

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

Suggestions to improve the Judiciary:

• The Preamble of the Indian Constitution begins with ““We, the people of India”. So the powers of the Judiciary is also come from the people, like the executive and the legislature. The Judiciary has to accept this.
• Freeing himself from the bias in constituting benches and allocating cases
• He can seriously introspect and review the actions of his immediate predecessors,
• All this will restore the “ rule of law”  and the proper fulfilment of the provisions of the Constitution.

Government Initiatives:

• National Mission for Justice Delivery and Legal Reforms 
• The mission has been set up to ensure better access to justice by:
• Reducing delays and arrears
• enhancing accountability through structural change.
• E-Courts Project:
• Computerization of district and subordinate courts
• ICT infrastructure of the Supreme Court and the High Court
• At present, Case Information System (CIS) 2.0 is being implemented across the country.
• Gram Nyalays:
• The Gram Nyayalayas Act, 2008 was enacted to provide for the establishment of Gram Nyayalayas
• These are mobile village courts; aimed at providing inexpensive justice to people in rural areas
• Alternative Dispute Resolution (ADR) Mechanism:
• Arbitration, Mediation, Conciliation and negotiation and
• Lok Adalats: Community based dispute resolution mechanism
• National Court Management System:
• To address issues of case management, court management, setting standards for measuring performance of the courts and a national system of judicial statistics.
• National Litigation Policy
• Government regarded to be the biggest contributor (46%) to litigation in India
• NLP introduced to reduce government litigations
• Government also launched Legal Information Management and Briefing System as a database of all the ongoing cases with the government as a party
• Fast  Track Courts: for quick disposal of cases pending in the lower courts
• Nyaya Mitra Scheme : Aims at reducing pendency of cases with special focus on those pending for more than 10 years.
• Scrapping off redundant laws

Way forward

• The new Chief Justice must seriously introspect and free himself of the  bias in constituting benches  and allocating cases and take concrete steps to  revitalise the administration of justice.
• Only then will the rule of law be restored and the Constitution served.

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Legal, Judicial and Police Reforms (India @ 75)

Relevance: mains: G.S paper II: Important aspects of governance, transparency and accountability

• To ensure the safety and security of citizens and ensure access to effective legal systems and speedy delivery of justice.

Current Situation

Legal and judicial reforms are urgently needed to address the massive pendency and capacity issues in Indian courts, which impede access to justice. Several archaic and defunct laws have already been repealed and many others are in the process of being weeded out. The recently announced umbrella scheme on “Modernisation of Police Forces” to strengthen law and order and modernize the police is a welcome stimulus. A part of police reform is intrinsically linked to legal/judicial reform, which would result in efficient criminal justice dispensation.

Constraints

• The major challenge facing the judiciary is the huge backlog of over 2.7 crore pending cases. There are also significant capacity issues.
• Ease of doing business in India is severely constrained by the inability to enforce contracts or laws, lengthy and costly litigation and arbitration processes, and archaic legislations. Although we have the Arbitration Law of 1996, which is in tune with global principles, it has not yielded desired results in terms of lessening the pressure on courts. Nor have the alternative dispute resolution mechanisms been utilized adequately. The World Bank “Doing Business Report” 2018 ranks India at 164 in ‘Enforcing Contracts’; though an improvement of 8 positions, it is clearly not an acceptable situation.
• Police reform until recently had been stuck due to various reasons. Police/law and order is a state subject, falling under List II of the Seventh Schedule of the Constitution of India. In a federal set up like ours, this makes policy reform a rather sticky issue. After accounting for vacant positions, there are only 137 police personnel per 100,000 citizens (17.3 lakh in all). The UN recommends 222 police personnel per 100,000 citizens.

Way Forward

A. Legal reforms

• Create a repository of all existing central and state laws, rules and regulations
• The centre and state(s) need to create repositories of laws, rules, regulations and government orders.
• Alternatively, a three-tier repository system can be considered in line with the system of governance enshrined in the Constitution.
• Repeal redundant laws and introduce a new initiative to remove restrictive clauses in existing laws
• For the first time since independence, as many as 1,420 redundant laws have been repealed over the past four years. An identical process should be followed by all states.
• A new programme to repeal unnecessarily restrictive clauses and procedures in existing laws should be started. It will enhance both ease of living and ease of doing business indices.
• Consider the following changes in criminal justice and procedural laws
• Introduce changes to procedural laws in line with the principles and thinking behind the Commercial Division Bill.
• Change from the present litigant driven outlook to one led by an effective judiciary in line with global practice. To begin with, a review of the Code of Civil Procedure (CPC), 1908, may be considered.
• The Commercial Court, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, needs to be amended to provide for pre institution mediation and settlement by using the services of agencies created under the Legal Services Authorities Act. The amendment can be on the lines of the provisions of Section 89 of the CPC, under which Courts can refer disputes to one of the alternate dispute resolution mechanisms after a suit is filed. It is also necessary to fast track the consequential amendments in the respective provisions of the CPC once the Act has been amended.
• Reduce the criminalization of violations, and move towards compounding of minor offences:

o Sixty eight per cent of under-trials in jail are awaiting trial. The under-trial waiting time needs to be drastically reduced. It is also necessary to move towards community service and other non-imprisonment based punishments.

O It is necessary to re-examine the procedure for initiating criminal proceedings, arrest and bail. Summary proceedings and plea bargaining should be reorganized and implemented so that criminal cases can be settled in a time bound manner.

O Reform forensics and ballistics testing by outsourcing to accredited laboratories.

• Create a law-abiding society
• It is necessary to inculcate respect for the rule of law among citizens. The process should start at the school level and can be effected by mandatorily introducing innovative programmes with well thought out content and activities.
• Introduce incentive and sanction-based models of motivation to ensure that citizens abide by the law.

The following measures may be considered:

o Prohibitive penalties should be imposed to check traffic violations, civic violations including littering in public, first time petty offenders, etc.

o Use of advanced technology is an essential pre-requisite to check these violations of the law; person-to-person direct interface should be minimized to eliminate corruption

o If there is a resource constraint, then additional resources may be allocated for this critical purpose.

• A time line for implementation of necessary amendments should be stipulated. Such amendments should also have stipulated and binding time limits within which reports, such as ballistics and forensic reports, need to be submitted. Review and sunset clauses in legislations may also be considered.
• Continuing legal education in selected areas should be made mandatory for lawyers and judges and rules of professional conduct and ethics need to be drawn up and implemented.
• Greater sensitivity on the part of government officials to citizens’ needs can help reduce the number of litigations/disputes. This will require an attitudinal reorientation among government officials through sensitization programmes. Future prospects of employees can be made contingent on their successfully completing such programmes.
• New laws should be drafted in simple, plain language.

B. Judicial reforms

1. A study carried out by the Ministry of Finance found that it takes, on an average, almost 20 years for a property related dispute to be resolved, and that it would take 324 years just to clear the present backlog at the current rate of disposal. The huge backlog of pending cases is a critical logistical and efficiency issue. To tackle the issue, the following capacity building and sustainable solutions should be considered in consultation with the judiciary:

• Shift certain sections of the workload out of the regular court system to commercial courts,the commercial division and the commercial appellate division of High Courts for commercial disputes and the Criminal Judicial Magistrate for criminal cases at least in metropolitan areas to decongest courts.
• A mechanism may be considered whereby litigants in a commercial dispute must first be made to exhaust the remedy of pre-institution mediation and settlement. However, it should be ensured that such cases do not create one more stratum in litigation.
• The Arbitration and Conciliation Act, 1996, should be amended to make India a robust centre for institutional arbitration, both domestic and international. A new autonomous body, viz., the Arbitration Council of India, should be set up to grade arbitral institutions and accredit arbitrators to make the arbitration process cost effective and speedy, and to pre-empt the need for court intervention.
• Merge and rationalize tribunals to enhance efficiency. Appointments to tribunals must be streamlined either through a specialized agency or under the Department of Personnel and Training (DoPT).
• Judicial decisions need to take account of their economic and social impact, especially in cases pertaining to contract, labour, tax, corporate and constitutional issues as observed by the Supreme Court in a recent judicial decision.
• An all-India judicial services examination on a ranking basis can be considered to maintain high standards in the judiciary. The selection process may be entrusted to the Union Public Service

Commission (UPSC) for a cadre of lower judiciary judges (first induction level), Indian Legal Service (both centre and states), prosecutors, legal advisors, and legal draftsmen. This will attract young and

bright law graduates and help build a new cadre that can enhance accountability in the governance system.

• Continuing training may be introduced to ensure development of skills, ethics, knowledge and awareness of international best practices.
• Multi-faceted training faculty for judicial academies including reputed lawyers, successful NGOs and others, for holistic exposure may be considered.
• Training modules should be live streamed on an e-platform to make information easily accessible, and widely disseminated.
• Consider a performance index for judges and a separate state wise index for ease of getting justice.
• Introduce an administrative cadre in the judicial system to streamline processes. To maintain judicial independence, the cadre should report to the Chief Justice in each High Court.
• Prioritize court process automation and ICT enablement for electronic court and case management, including electronic management of court schedules and migration of all courts to the unified

national court application software. 10. Facilitate the availability and usage of videoconferencing facilities to assist in speedy access to justice and to minimize logistical issues. At present, even the

available video conferencing facilities are not utilized optimally.

C. Police reforms

With fiscal support to the states now being looked after under the umbrella scheme, the following reforms maybe considered:

• The Model Police Act of 2015 can serve as the basis for legislative reform as it modernizes the mandate of the police, puts in place a governance mechanism that insulates the police from political interference and provides for the measurement and tracking of police performance. 2. A task force may be created under the Ministry of Home Affairs (MHA) to skill personnel and identify non-core functions that can be outsourced to save on staff.
• States should be encouraged to ensure greater representation of women in the police force. The MHA should come up with a policy to encourage greater participation of women to achieve a target share of 30 per cent women among new recruits.
• Launch a common nation-wide emergency contact number to attend to emergency security needs of citizens.
• Integrate the Lokpal and Prevention of Corruption Acts into police reforms to enhance accountability.
• Transfers/postings of police personnel should be made more transparent and the involvement of police in prosecution needs to be looked at more closely.
• It is important to consider introduction of remodelled training modules, refresher courses and continuing education for police personnel including live-streaming of training modules on e-platforms. A concept of certification of security personnel with identified skill sets may be considered with linkage to promotion and deployment.
• Introduce reform of the First Information Report (FIR) lodging mechanism, including introducing filing e-FIRs for minor offences. Besides, police challans, investigation reports, etc., should be made available through the online portal of each police station.
• A separate cadre for exclusively looking into cyber-crimes, cyber threats and fraud needs to be developed.
• A panel of experts in psychology, negotiation, language proficiency and training may be put together.
• A technology centre may be considered for benchmarking and identifying suitable technologies for the police under BPR&D in collaboration with IITs. A separate National Cyber Security Division may be considered to support and coordinate initiatives of state governments in handling cyber-crimes. A separate dashboard for interface with citizens for reporting and redressal of cyber crimes may be considered. Besides, big data analytics may be utilized in a big way. The Crime and Criminal Tracking Network and Systems project may be completed along with the launch of Phase 2 for linking of crime, prosecution, court and prison databases.

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Issues plaguing indian judiciary.

Recently, the Chief Justice of India underlined the need to increase the sanctioned strength of judges and fill existing vacancies to address the issue of pendency.

Discuss the major reasons for pendency of cases and steps to rectify them. 

• There were 4,432 vacancies in the posts of [subordinate court] judicial officers, representing about 22% of the sanctioned strength. In the case of the High Courts, 458 of the 1,079 posts, representing 42% of the sanctioned strength, were vacant as of June 2016.
• According to the National Judicial Data Grid, there are 2.4 cr pending cases in India’s district courts, out of which 23 lakh (9.58%) have been pending for over 10 years, and 39 lakh (16.44%) have been pending for between 5 and 10 years.
• The number of cases is predicted to increase by nearly 15 crores over the next three decades, necessitating a total of approximately 75000 judges.
• In reality, the 25 high courts now have less than 1200 judges.
• Corruption: The Asian Human Rights Commission estimates that for every ₹2 in official court fees, at least ₹ 1,000 is spent in bribes in bringing a petition to the court.
• Lack of funds
• Under-utilisation of existing funds and 
• Poor planning of resources. 
• The Centrally Sponsored Scheme for Judicial Infrastructure has released Rs 8710 crores for judicial infrastructure since 1993 of which Rs 5,266 crores were released in the last eight years. In addition, most state governments are required to match this amount in a 60:40 ratio.

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• This project is supposed to lay down the “road map for the planning, creation, development, maintenance and management of functional infrastructure for the Indian court system”.
• Lawyers can use Artificial Intelligence (AI) in research.
• AI assisted judgment writing tools can be used.
• Digital filing for time efficiency and error management along with the use of smart templates – for court staff.
• Seamless integration of courts with police, prisons and other aspects of the judicial system to expedite information sharing.
• Provide administrative support functions needed by the judiciary
• Identify process inefficiencies and advise the judiciary on legal reforms
• The 42nd Constitutional amendment in 1976 amended Article 312 (1) empowering Parliament to make laws for the creation of one or more All-India Services, including an AIJS, common to the Union and the States.
• Similarly Special Courts within High Courts can be set up to address litigations pertaining to land, crime, Traffic Challans etc, in order to reduce the burden on main courts.

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Essay on Judiciary in India and its working

October 18, 2019 by Sandeep

600+ Words Essay on Judiciary in India

The Indian constitution consists of the legislature, executive and the judiciary. The legislature department is involved in preparing policies and law-making concerns. The executive is involved in implementing the laws created by the legislature body.

The judiciary is an independent department not attached with the legislature or the executive. It is an independent judicial body that is vested with judicial powers and can carry on its judicial activities without direct interference from the government.

Judicial activism in Indian democracy

The judiciary in many ways is closest to the citizens or the nation. The many functions of the judiciary ensure legal protection to the citizens of the country.

If we were to settle a family dispute and go to court seeking relief, we would be advised to apply a case and the proceedings of the court would be held at the respective family courts. Thus, the judiciary ensures fair legal protection to every citizen of this nation.

The judiciary carries out many functions under its umbrella. Every citizen is provided with equal and fair justice under law. Whenever a citizen seeks protection under law, he is ensured such protection under relevant laws of the Indian judicial system. Laws are created by the legislature, executed by the executive and applied by the judiciary.

It is like the father creating the rules of the house, the mother creating suitable environment for its execution and the children applying the rules in their lives. Any country needs a legal framework within which it can operate and make decisions for the country. This legal framework and binding is actually curated by the judiciary to uphold the legal decorum of any nation.

Any violation of the fundamental rights of citizens of the country is acted upon seriously by the judicial system. Every citizen is entitled to certain basic rights termed the fundamental rights under our constitution. The constitution needs protection under law and this is taken care of, by our judicial system. Legal decisions pertaining to every single case is taken by respective judges of courts.

Every such legal decision is brought into enforcement by our judiciary. There are numerous times when we find disputes arising between states, termed inter-state conflicts. The judiciary resolves such inter-state disputes and comes up with an amicable resolution to put an end to such conflicts before they take on political colors.

The water dispute arising every year between Karnataka and Tamil Nadu regarding the sharing of Cauvery waters is a good example in this regard. The case is pending in the Supreme Court and the judiciary is trusted to solve such issues amicably to bring in peace and harmony between the two warring states.

Not just interstate disputes, any conflict that may arise between the centre and the state is also solved by the judiciary. Whenever there is any problem in the country where the legal framework gets violated or people act against the legal system of the country, it attracts punishment under various sections of the constitution.

Any such crimes or anti social elements acting against the dignity of our judicial system and the country as a whole is treated as offence and tried under law. Enquiry commissions headed by expert panels of senior lawmakers and judges are usually formed in cases of dispute resolutions.

The enquiry commissions submit a relevant report to the government to let them know of the impending situation and the previous activities thus ensued, thus revoking further action by the government.

Collegium system

This system is also called the judges’ selection system by a panel of judges. The collegium system actually has no mention or place in the Indian constitution. It was not even placed under any amended section of our constitution. This system came into force, thanks to a judgment pronounced by the Supreme Court in the year 1993.

The functions of the collegiums system include identifying most eligible members for posting them as suitable judges of the Supreme Court. This selection and scrutinizing is carried out by the so called ‘collegium system’. It comprises of a body of five senior judges of the Apex court, who are instructed and directed by the CJI to carry on the task successfully.

Many chief justices of high courts are handpicked in a similar manner to be promoted to the Supreme Court after the above explained scrutiny process.

Famous controversies associated with our judiciary

‘master of roster’ controversy.

Suppose there lies a family dispute between two parties ‘A’ and ‘B’ that has not reached the court doors as yet. Let us also assume that both the parties trust a mutual friend ‘C’ who will now be entrusted with the task of solving the matter between A and B. C is like a neutral friend to both A and B. In case C newly discovers that he is a close relative of A, then he might choose to act more favorably towards A.

He might also not blame A in any way in the controversy between A and B and hold B responsible for the dispute and create an imbalanced decision holding B at fault. This selection of the culprit was not at all fair and does not warranty fair execution of laws under our system either. The master of roster controversy can be understood in a similar light.

In April 2018, Shanti Bhushan who happens to be a former law minister questioned the current practice in our legal system where the Chief Justice decides the allocation of various cases available. He extended a PIL in this respect and spoke against the wholesome powers resting with the chief Justice when he decided to allocate a particular case to a particular judge / bench of judges.

It was not to be seen as a personal attack against any particular Chief Justice of India (CJI), either in the past or the present, but he only questioned the arbitrary power associated with the CJI in deciding the allocation. Any bench comprising of judges chosen by the CJI could be politically influenced or could take on personal interests and thus may not uphold the sanctity of justice as laid down in the constitution.

The CJI could actually consult top brass and senior judges of the Supreme court and then decide on the allocation was the argument that could be understood from this controversy.

Differences between Chief Justice and senior Supreme Court judges

There have been numerous times when the selection of judges for higher courts have become a matter of controversy for the judiciary. The recent one in January 2018 that comprised CJI Dipak Misra and four senior most judges of the Supreme Court is a good example.

The four senior judges raised the issue of assigning cases to supreme courts, among many other issues against the CJI. This matter was discussed between the Supreme Court and the judges in the court for more than fifteen minutes and the CJI led body failed to come up with a resolution stating that it would entertain the issue only when the apex court registry comes up with a suitable petition for the same.

The judiciary of our nation works to provide citizens the much needed civil liberty and highest protection under law. It is the legal framework of the nation, applied by the judiciary that provides every citizen of the country his right to live with dignity.

Be it property disputes, disputes of succession, registration of will, marriage and divorce issues, higher level cases that affect a larger part of the nation etc, the judiciary is the legal umbrella of the nation.

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Standing Committee Report Summary

The Standing Committee on Personnel, Public Grievances, and Law and Justice (Chair: Mr Sushil Kumar Modi) submitted its report on “Judicial Process and their Reforms”, on August 07, 2023.  Key observations and recommendations of the Committee include:

Regional benches of the Supreme  Court:  The Committee observed that the Delhi-centric Supreme Court creates a significant hurdle for litigants coming from faraway areas of the country.  The Committee stated that the demand for establishing regional benches of the Supreme Court is based on the fundamental right of access to justice.  As per Article 130 of the Constitution, the Supreme Court will sit in Delhi or in such other place or places as the Chief Justice of India, with the approval of the President, may appoint.  The Committee recommended the establishment of regional benches of the Supreme Court.   It noted that Article 130 may be invoked to establish regional benches at four or five locations.  It suggested that the regional benches may decide appellate matters, while Constitutional matters may be dealt at Delhi.

Social diversity in the appointment of judges:  The Committee observed that the higher judiciary (Supreme Court and High Courts) suffers from a diversity deficit.  It noted that the representation of Scheduled Castes, Scheduled Tribes, Other Backward Classes, Women, and Minorities is far below the desired levels and does not reflect the social diversity of India.  For instance, since 2018, the percentage of High Court judges appointed from Scheduled Castes and Scheduled Tribes was 3% and 1.5%, respectively.  Further, it noted that there is no provision for reservation in the judicial appointments of the higher judiciary.  It suggested that the Supreme Court and High Court’s Collegiums should recommend an adequate number of women and candidates from marginalised communities including minorities.  It recommended that the Department of Justice collect data of the social status of judges presently serving in the Supreme Court and High Courts.

Retirement age for judges:  The Committee observed that the retirement age of judges needs to be increased to keep pace with advances in medical sciences and increased longevity.  Currently, the retirement age for Supreme Court and High Court judges is 65 and 62 years, respectively.  It recommended increasing the retirement age for Supreme Court and High Court judges and amending the relevant Articles of the Constitution.   Additionally, a system of appraisal may be devised by the Supreme Court Collegium to evaluate the performance and heath conditions of judges before extending their tenure.

Mandatory declaration of assets:  The Committee noted that as a practice all constitutional functionaries and government servants must file annual returns of their assets and liabilities.  However, judges are not required to disclose their assets and liabilities.  The Committee recommended that the central government bring out a law to mandate the higher judiciary judges to furnish their property returns annually to the appropriate authority.

Vacations in the Supreme Court and High Courts:  The Committee noted that the entire court going on vacation at once leads to the higher judiciary shutting down for a couple of months per year.  It observed that the demand to eliminate vacations in Courts stems from: (i) pendency of cases, and (ii) the inconvenience faced by litigants.   For example, the Committee noted that pendency in High Courts was over 60 lakh cases.  The Committee suggested that instead of all judges going on vacation simultaneously, individual judges should take their leave at different times throughout the year.

Annual reports of High Courts:  The Committee likened the publication of an annual report to an assessment of the institution’s performance over the past year.  Presently, the Supreme Court publishes its annual report, which also depicts work done by all High Courts.  The Committee observed that only some High Court are publishing their annual reports.  It recommended the Department of Justice to approach the Supreme Court to issue directions to all High Courts to prepare and publish their annual reports. 

DISCLAIMER: This document is being furnished to you for your information.  You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research (“PRS”).  The opinions expressed herein are entirely those of the author(s).  PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete.  PRS is an independent, not-for-profit group.  This document has been prepared without regard to the objectives or opinions of those who may receive it.

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Explained: The legislations that BJP, Congress, DMK and others have promised in manifestos

As polling for the 2024 lok sabha elections begins, here is a breakdown of the election manifestos of five major parties — bjp, congress, cpi(m), dmk, and tmc — in terms of the legislations and judicial reforms promised..

The ongoing Lok Sabha elections have seen parties make a host of promises in their election manifestos. Here is a breakdown of the manifestos of five major parties — specifically, their legislative agenda and the judicial reforms promised.

Bharatiya Janata Party

The incumbent BJP ’s promises are centred around the policies it has introduced over the last decade, with a relatively shorter legislative agenda in the manifestos (when compared to, say, the Congress). That being said, the new laws that the ruling party has committed to introducing are very significant. These include:

• A “complete overhaul of the commercial and civil justice systems” — on the lines of the criminal justice reforms which will come into force on July 1 — to ensure legal procedures are made more efficient;
• The implementation of a Uniform Civil Code , “which protects the rights of all women”, a long-term promise of the BJP;
• The “systematic” implementation of reservations for women in Parliament and State Legislatures, as provided in the 128th constitutional amendment ( Nari Shakti Vandan Adhiniyam );
• The strengthening of the Real Estate Regulatory Authority Act , introduced in 2016, to make the real estate sector “more transparent and citizen friendly than ever before”;
• Bringing in an “unprecedented” increase in MSP for major crops, which will then continue to be raised “from time to time”;
• The formulation of a ‘National Litigation Policy’ so that cases can be resolved quickly and at a lower cost, and also decreasing the number of cases where the government is a party so that the court’s burden is reduced;
• To carry out the complete digitisation of court records by accelerating the e-Courts Mission Mode Project , and establish fast track courts to dispose of pending cases in “identified areas”;
• Removing the implementation of the Armed Forces (Special Powers) Act, 1958 in “disturbed areas” in a phased manner; and
• Developing Legal Standards to protect cultural intellectual property by collaborating with international organisations like the World Intellectual Property Organisation (WIPO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO).
• Indian National Congress

Among the five parties discussed in this piece, the Congress has promised to enact the widest array of new laws if voted in power. These include laws and amendments targeted towards:

• Providing reservations in private educational institutions for Scheduled Castes, Scheduled Tribes and Other Backward Classes;
• Combatting discrimination faced by oppressed communities in educational institutions, entitled the ‘ Rohith Vemula Act ”;
• Providing compulsory and free education from Class I to XII in public schools;
• Removing gender discrimination and bias in all laws;
• Recognition of civil unions for couples belonging to the LGBTQIA+ community;
• Criminalising violent acts against doctors and health professionals “while performing their duties”;
• Providing one year apprenticeships to all diploma holders and college graduates (below 25 years) in public and private companies, entitled the Right to Apprenticeship Act ;
• Guaranteeing the announcement of Minimum Support Prices (MSPs) for farmers every year in line with the recommendations of the Swaminathan Commission ;
• Protecting the rights and enhancing the social security provided to gig workers and workers in the unorganised sector;
• Regulating the employment of domestic help and migrant workers to ensure basic legal rights;
• Introducing a law on bail that applies to all criminal laws based on the principle ‘ bail is the rule, jail is the exception ’;
• Curbing monopolies in the media and control of media by business organisations;
• Preserving internet freedom and preventing “arbitrary and frequent” shutdowns;
• Clamping down on defection from political partie s by making defection lead to an automatic disqualification from membership in Parliament and Legislative Assemblies;
• Ensuring transparency and clarity in tax administration through a new Direct Taxes Code;
• Introducing a new GST taxation regime with “a single, moderate rate (with a few exceptions) that will not burden the poor”;
• Amending the Government of National Capital Territory of Delhi Act, 1991 to declare that the Lieutenant Governor of the NCT of Delhi shall act on the aid and advice of the Council of Ministers;
• Raising the 50% cap on reservations and ensure that the 10% reservations for Economically Weaker Sections are extended to all castes and communities;
• Providing 33% reservations for women from 2025 onwards instead of accepting “sinister” provisions in the Constitution (106th) Amendment Act which would delay the reservation to “beyond 2029”;
• “Encouraging” reforms in personal laws “with the participation and consent of the communities concerned,” although Congress has remained silent on the enactment of a Uniform Civil Code ;
• Restoring full statehood to Jammu and Kashmir ;
• Amending the Sixth Schedule of the Constitution to include tribal areas of Ladakh ;
• Consulting the Supreme Court, and establish a National Judicial Commission for the appointment of High Court and Supreme Court judges; and
• Creating two divisions of the SC — a constitutional court to hear cases involving the interpretation of the Constitution, and a court of appeal to hear cases arising from Tribunals and High Courts.
• Communist Party of India (Marxist)

The CPI(M) has promised to repeal what it considers “draconian” laws, bring in greater legal protections for minorities, and introduce legislation aimed towards achieving greater socio-economic equity in the country. Its manifesto promises to:

• Repeal anti-conversion laws in various states;
• Work towards “scrapping” the Citizenship Amendment Act ;
• Enact a law against lynching and introduce “appropriate legal measures for reining in and taking action against organisations and institutions involved in spreading communal hate and attacking minorities”;
• Repeal “draconian” laws such as Unlawful Activities Prevention Act (UAPA), the National Security Act (NSA) and the Armed Forces Special Powers Act (AFSPA);
• Replace the PMLA with “suitable law to prevent misuse”, and take away the Enforcement Directorate’s law-enforcement powers;
• Replace Article 356 which allows ‘President’s Rule’ to be imposed in states under certain circumstances, with “a suitable provision”;
• Introduce a tax on the “super-rich” , a general wealth tax, and an inheritance tax.
• Enforce farmers’ right to sell their produce at an MSP which will be at least 50% higher than the cost of production incurred by the farmer;
• Introduce a statutory minimum wage for workers of “not less than Rs. 26,000 a month”;
• Introduce a new law to guarantee employment in urban areas, along with an unemployment allowance;
• Assure 200 days of work under the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) ;
• Stand for a law for reservations in private section jobs and educational institutions for SCs, STs, and OBCs;
• Fight to restore full statehood to Jammu and Kashmir, and immediately conduct State Assembly elections;
• Act strictly against hoarding and black-market sale of essential commodities by strengthening the Essential Commodities Act ;
• Introduce a law on the appointment of Governors to ensure that Governors will be appointed by the President from a three person panel proposed by the Chief Minister of a state.
• Introduce a law for universal social security coverage (pension, life insurance, maternity and childcare benefits etc.) for unorganised workers;
• Restore the Working Journalists Act to ensure decent wages and job security in print, digital and electronic media organisations;
• Create a National Judicial Commission for the appointment and transfer of SC and HC judges;
• Amend the CEC and Other ECs (Appointment, Conditions of Service and Term of Office) Act so that EC members will be recommended by a committee comprising the Prime Minister, Leader of the Opposition and the Chief Justice of India; and
• Bar Election Commissioners from “enjoying any office” under the Government or as a Governor after their retirement.
• Dravida Munnetra Kazhagam

The DMK claims to be “the first party in India to have created a tradition of publishing a manifesto before every General Election”. In terms of legislations and judicial reforms, the party’s promises include:

• Striking down Article 361 of the Constitution, to remove the special exemption granted to Governors against legal action before the court;
• Abolishing Article 356 “which allows the dissolution of duly elected state governments by President’s Rule”;
• Repealing the Citizenship Amendment Act, 2019;
• Preventing the introduction of the Uniform Civil Code;
• Establishing a branch of the Supreme Court in Chennai to improve access to justice;
• Restoring full statehood to Jammu and Kashmir — which became a Union Territory following the Jammu and Kashmir Reorganisation Act, 2019 — and conducting democratic elections in the state.
• Granting statehood to Puducherry , currently a Union Territory;
• Making Tamil an official language in the Madras High Court and Union Government offices in the state.
• Amending the Right to Education Act to provide “Free, quality, mandatory, child-friendly education” to all children in their mother tongue till 12th grade.
• Ensuring 50% reservation for Backward and Most Backward communities and abolishing the Creamy Layer ;
• Immediately implement 33% reservation for women in Parliament and Legislative Assemblies;
• Enacting a law to provide menstrual leave to wome n;
• Enacting a law to safeguard the rights and minimum wages of domestic workers;
• Enacting a law to prevent child trafficking for work, marriage, sexual exploitation, and organ trade, with appropriate legal investigation mechanisms established; and
• Increasing the number of working days that are provided under the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) from 100 to 150;
• Enacting a law to protect the Western Ghats ; and
• Adopting the recommendations of the Swaminathan Committee to ensure MSP for agricultural products is 50% higher than the production cost.
• Trinamool Congress

The manifesto’s opening “appeal” penned by Mamata Banerjee expresses the TMC’s commitment to work for “ Maa, Mati, Manush ” (Mother, Land and People), secure the rights of the people in the state of West Bengal and “lead the nation towards transformative change”. TMC’s promises include:

• Introducing a bill to rename West Bengal to ‘ Bangla ’ (this proposal was rejected by the Centre in 2018);
• Legally guaranteeing MSP to farmers at 50% higher than the average cost of production;
• Withdrawing cases registered against farmers during the farmers ’ protests;
• Abolishing the “botched up” Citizenship Amendment Act and disctontinuing the National Register of Citizens ;
• Not implementing the Uniform Civil Code;
• Amending the 10th Schedule to make the Anti-Defection law more “explicit” and immediately applicable;
• Abolishing political interference in “key Government institutions” such as the CBI and ED by amending their respective Acts;
• Bring the PM CARES Fund under the purview of the Right to Information Act by classifying it as a “public authority”;
• Amending the Border Security Forces Act to reduce the jurisdiction in West Bengal to 15 km along the border from 50 km, and establishing an independent oversight committee to investigate allegations of misuse of force against innocent citizens during peacetime;
• Repealing the CAA and opposing the imposition of the Uniform Civil Code;
• Ensuring that appointment of judges to the higher judiciary is overseen to ensure that they are done on the basis of “merit and eligibility”, and that the evaluation criteria and deliberations are made public;
• Instituting a mandatory three-year “ cooling off perio d” for judges after retirement, before they can accept Government appointments or political positions;
• Establishing 766 fast-track courts (1 in every district of India) to tackle the backlog of cases dealing with crimes against women and offences under the Protection of Children from Sexual Offences (POCSO) Act; and
• Introducing a new Digital Liberties Bill to secure the citizens’ personal data, outlaw the use of surveillance technology, and prevent the imposition of internet shutdowns.
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Avani Dias, ABC News' South Asia Bureau Chief, faced visa extension and election accreditation denials from the Indian government after her reports were deemed to have "crossed a line". With intervention from the Australian government, she received a two-month visa extension just before her flight. This came after her report on a Sikh separatist's killing was blocked in India.

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Should Petroluem brought under GST ?

Indian Petroluem Industry shall represent the GST. Petroluem sector shall be renamed as Oil firms and it shall lead & serve the needs of people. In a while ,they shall keep par with the E-way bills through advance payments. Any Industry shall avail taxation ,while they are tending to be diffused and wide-spread. The spillover effects of Direct tax is Good & Simple tax. Direct tax is a government service ,and can double the capability of the traders.India is a middle –income nation ,while the middle men rely on market to live easily. Markets provide the way for the ability of the consumer. A lots of billing softwares are traced for the petroleum Industry.

The whole nation suffers from Oil crisis if the International avenues are Institutionalised. Petroluem minning can be done by Indians itself to capture the market.The real world will not suffer from shortage of resources . GST Plan is a new plan . It multiplies the resources and the charges for avail and access. In order to access the resources centres are represented.Direction is to be done for accessing resources.Petroluem shall be brought under GST. Where ever GST goes there is safe tax and simply return of files. The file reporting of the petroleum Industry needs clarity to capture the consumers. The recent developments in the GST and collection , recovers records.

One of the most prominent concerns our country is facing is the sizable backlog of cases in courts. There has been an accumulation of cases in the Supreme Court, in the 24 High Courts and in subordinate courts. As of August 2018, the National Judicial Data Grid indicated a logjam of almost 2.8 crore cases in courts. This issue can primarily be attributed to a shortage in judges. The number of judges appointed all over India is far less than the total capacity of judges approved.

The requirement for judicial reforms is highlighted by the fact that the limited supply of judges to cater to the vast demand for the attention of courts by accumulating cases has led to a rise in the figurative price of justice. Those who approach courts not only incur the litigation costs, but also spend a large amount of time in wait. As William E. Gladstone said, “Justice delayed is justice denied”. Furthermore, there is a possibility that an increase in the efficiency of the judicial system could curb crime rates. The proximity of penalty for committing a crime that is brought by judicial efficiency would have the psychological effect of deterring crime.

Corruption within courts makes the integrity and fairness of the judiciary questionable.

Judicial overreach is another issue that calls for reform. A past example of overreach that has been criticized is when Supreme Court ruled that operators with cancelled 2G licences must stop their services. The line between the judiciary and legislature must not be blurred. It is crucial to distinguish clearly between beneficial judicial activism and detrimental overreach to sustain the organs of the country and maintain their respective functions.

Above are the main reasons that indicate the need for judicial reforms in India. Possible solutions are as follows:

• Measures should be introduced to promote transparency in proceedings to avoid bias. Former Chief Justice of India P. Sathasivam once stated in an interview that the best way to tackle corruption in courts is through grievance petitions before the Chief Justice of respective high courts and the CJI, by litigants.
• More judges must be appointed in courts. The Supreme Court struck down the National Judicial Appointments Commission (NJAC) act in 2015, declaring it unconstitutional. A renewed version of this idea and goal could help effectively appoint more judges. If the shortage of judges and courtroom facilities were suitably addressed, the logjam of cases could be cut down with the increase in efficiency. Competence is key. Appointed court officials must have a good level of qualifications and skill to ensure legal disputes are resolved expeditiously.
• There should be an established mandatory pre-litigation process in place to discourage frivolous litigation to conserve the court’s time.
• An independent executive body could be set up solely to ensure the enforcement of judgements issued by the court, to improve faith in its effectiveness.

- Sharanya Sanjay

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All India Judicial Service (AIJS) - Creation of a New Indian Judicial Service

All India Judicial Service (AIJS) has lingered in the backdrop of the judicial reforms debate for almost sixty years. The purpose of the creation of a judicial Service Commission is to help the recruitment to the post of district judges and review of the selection process of judges/judicial officers at all levels.

This article will provide information about the creation of a new Indian Judicial Service – All India Judicial Service (AIJS) in the context of the  IAS Exam .

This article is important for the Indian Polity section (GS Paper II) of the  UPSC Syllabus .

The candidates can read more related topics for their upcoming exams from the links provided below:

All India Judicial Service (AIJS) – Historical Background

• In 1958, the 14th report of the Law Commission of India had recommended the creation of the All India Judicial Service (AIJS).
• In 1961 at the Chief Justices’ Conference, a proposal was given for the creation of All India Judicial Service. This recommendation was given at the conference to remove any kind of intervention either by the Executive or Judiciary while making appointments to the Judiciary.
• After opposition from High Courts and some states, the proposal for All India Judicial Service (AIJS) was shelved until 1976.
• The Constitution was amended, under Article 312, a provision was made for AIJS.
• The recommendation for the creation of All India Judicial Service (AIJS) was once again given by the Law Commission in its 77th report which was submitted in 1978 and in its 116th report which was submitted in 1986.
• The Government was asked to check the feasibility of the recommendations given by the Law Commission, to set up the All India Judicial Service (AIJS).
• This recommendation to the Government was given by the Supreme Court of India in the All India Judges Association versus Union of India and others case.
• The matter concerning the creation of the All India Judicial Service was considered and recommended by the Justice Shetty Commission, also known as the First National Judicial Pay Commission (FNJPC).
• In 2012, a proposal was given by the Government of India regarding the AIJS.
• Due to opposition from the Chief Justices of the High Courts on the grounds that it would be an infringement of their rights, the proposal had to be shelved once again.

All India Judicial Service (AIJS) – Need for Indian Judicial Service

• As per a report given by the National Court Management Systems in 2012, the number of cases that would be filed in 30 years would be as high as 15 crores.
• To handle these many projected cases in the given timeline, there would be a requirement of 75,000 Judges.
• A “properly framed” All India Judicial Service (AIJS) on the lines of other all-India services would help in strengthening the overall Justice delivery system.
• All India Judicial Service will help in the inclusion of fresh talents through a merit-based selection process conducted throughout the country.
• There will be representation from deprived sections, marginalized sections of the society and address the problems of Social Inclusion.

Implementation & Challenges

• As per the amended Constitution, although Article 312(1) gives provision for setting up All India Judicial Services, a resolution must be passed in the Rajya Sabha with the support of not less than two-thirds of its members present and voting.
• Thereafter, a law for the creation of AIJS has to be enacted by the Parliament.
• The challenge behind the implementation of the All India Judicial Service (AIJS) is that the filling of vacancies of Judicial officers or Judges in Subordinate Courts and Districts is the domain of the respective High Courts and State Governments.
• Hence, the Government has to take a consultative approach to arrive at a common ground as the different stakeholders have diverging opinions.
• In November 2012, a Committee of Secretaries had approved a proposal for the constitution of AIJS. This was a comprehensive proposal.
• This proposal was included as an agenda item in the Conference of Chief Justices of the High Courts and State Chief Ministers, which was held in April 2013. Some of the States and High Courts wanted changes in the proposal, some of them had favoured the proposal, while some of the States and High Courts had rejected the proposal.
• The proposals received from the State Governments and High Courts were included in the Chief Justices’ conference held in April 2015.
• In 2019, the Government of India had initiated a consultative process for the establishment of the All India Judicial Services (AIJS). Eleven states did not respond to the Government, Five States had suggested some changes, and the Eight States had rejected the proposal of the Government.

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Analysis: India’s Courts Must Keep Their Autonomy

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India’s Courts Must Keep Their Autonomy

A recent ruling on campaign finance reflected a judicial independence that will be key to checking modi’s power if he wins a third term..

• Sumit Ganguly

In 2018, a year ahead of India’s last national election, the ruling Bharatiya Janata Party (BJP) rolled out a system of so-called electoral bonds —financial instruments that individuals or corporations could purchase in fixed amounts through the State Bank of India and contribute anonymously to a political party to fund its election campaign. Previously, individuals and corporations were required to make donations over a certain amount public.

At the time, the BJP government explained that the bonds scheme would enable both citizens and companies to help finance the electoral process with “clean money.” India’s elections have become prohibitively expensive because of the country’s sheer size, the scale of campaign events, and an increasing reliance on digital means to promote party platforms. India’s 2019 election expenditure was more than $8 billion . This year’s election, which began on April 19 and runs for six weeks, could cost more than $14.4 billion , around the same amount as the 2020 U.S. elections.

The financing for future Indian elections will now look different. In a landmark judgment in February, the Indian Supreme Court weighed in and unanimously struck down the electoral bonds system on the grounds that it violated Indian citizens’ right to information, and the State Bank of India was ordered to cease issuing further bonds. Petitioners including the Association for Democratic Reforms, represented by noted activist lawyer Prashant Bhushan, and the Communist Party of India (Marxist) lodged the case against the government.

The verdict was stunning for a few reasons. It showed that the Indian Supreme Court still retains some independence, even as it has come under growing criticism for its apparent tendency to kowtow to Prime Minister Narendra Modi’s government. It also brought to light just how much prominent conglomerates chose to fund the BJP through the bonds scheme—as well as revealing that a number of companies invested in the bonds were facing scrutiny from federal and state investigative agencies.

Although the Supreme Court judgment likely came too late to affect this year’s election, with much of the funding from the bonds already spent, terminating the electoral bonds system may contribute toward cleaning up India’s campaign finance process. Nevertheless, with the vote now underway, two significant questions linger. Assuming the BJP returns to office as expected, will the government resurrect the electoral bonds system with some transparency? And more broadly, will the Indian Supreme Court maintain the independence it displayed in this case?

At first, the Supreme Court decision seemed like a setback for the ruling BJP, which was by far the largest recipient of the electoral bonds—and thus lost access to some funding on the eve of the election. After the judgment, the court continued to push the State Bank of India to release information related to the details of the donors and the unique alphanumeric codes that linked these donors with beneficiaries. The data ultimately revealed that the BJP’s top 10 donors contributed as much as 35 percent of its total intake of electoral funds. Although there is little question that the Supreme Court deserves credit for the verdict, it is worth noting that the late timing of the judgment meant that it had little or no practical impact on this year’s campaign.

However, the subsequent court-ordered disclosures shed light on the murkiness of the electoral bonds scheme. A host of prominent conglomerates purchased bonds, suggesting an opaque effort to curry favor with both the BJP at the national level and regional parties at the state level. Several companies facing possible investigations into their financial practices were major donors, suggesting they may have sought to avoid further scrutiny under the BJP government, which has weaponized India’s investigative agencies. Opposition parties, political dissidents, and private companies alike have found themselves under the scanner of the country’s tax enforcement authorities .

The verdict’s significance goes beyond campaign financing and this year’s election. It gives hope to many activists in India who have grown concerned about the independence of India’s top court. Historically, the Supreme Court had a reputation for its prickly autonomy. It also became known for innovative if controversial judicial reforms, including the radical provision of public interest litigation , which enabled any Indian citizen to approach the bench via handwritten letter on behalf of the public interest, including in cases in which they were not directly involved; the Supreme Court then had the right to intervene if applicable—as with the electoral bonds case.

Still, in recent years, the Indian Supreme Court lost some of its sheen. In 2020, former Chief Justice of India Ranjan Gogoi, who was widely seen as sympathetic to the first BJP government under Modi, was nominated as a member of the upper house of India’s parliament shortly after his retirement from the bench. The unusual appointment raised serious questions about the court’s independence. Last year, former Supreme Court Justice S. Abdul Nazeer, who delivered the verdict in a case involving the land on which the controversial Ram temple now stands, was appointed governor of the Indian state of Andhra Pradesh.

The current chief justice of India, D.Y. Chandrachud, assumed office in 2022. Legal experts have construed a few judgments that have come under his watch as dubious. First, the court upheld the 2019 repeal of Article 370 of the Indian Constitution, which had long conferred special autonomous status on the Muslim-majority, Indian-administered region of Jammu and Kashmir. This, combined with a previous court judgment to allow the construction of the Ram Mandir on the grounds of the destroyed Babri mosque in Ayodhya to go ahead, left many of India’s 200 million Muslims bereft . Both decisions, based on questionable legal premises, have bolstered the BJP’s nationalist project.

Then, last October, the Supreme Court denied a petition to permit same-sex marriage in India, instead giving in to the government’s plea to set up a committee to examine the subject of granting same-sex couples rights available to heterosexual couples. Yet again, the decision left many Indians disappointed and showed deference to the social sentiments of the conservative government. The decision played into the hands of the BJP, strengthening its stance on what it deems to be traditional Hindu values under assault from liberal notions of modernity.

Given its recent record of largely siding with the BJP government on politically fraught issues, the Supreme Court’s decision on the electoral bonds scheme is momentous, even as it leaves legal experts guessing about the court’s motivations. A single judgment that undermines the ruling party will not immediately restore faith in the Supreme Court’s independence, but the willingness of the court to grasp this nettle on the eve of the national election suggests that it may still be willing to fight for the cherished democratic principle of judicial autonomy.

Other important judgments on the horizon will bear watching. Among other matters, the court is expected to rule on the politically fraught status of the Gyanvapi mosque in Varanasi; the powers of the Enforcement Directorate, a key financial crimes investigative agency; and the religious freedom of women. If the current BJP government does return to power as expected, maintaining the autonomy of the Supreme Court will be of signal importance in checking the possible arbitrary use of power during Modi’s third term.

Sumit Ganguly is a columnist at  Foreign Policy and visiting fellow at the Hoover Institution at Stanford University. He is a distinguished professor of political science and the Rabindranath Tagore chair in Indian cultures and civilizations at Indiana University Bloomington.

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Judicial reforms is a collaborative and a continuous process. Government has set up the National Mission for Justice Delivery and Legal Reforms in August, 2011 with the twin objectives of increasing access by reducing delays and arrears in the system and enhancing accountability through structural changes and by setting performance standards and capacities. The Mission has been pursuing a coordinated approach for phased liquidation of arrears and pendency in judicial administration, which, inter-alia, involves better infrastructure for courts, including computerization, an increase in strength of subordinate judiciary, policy and legislative measures in the areas prone toexcessive litigation, re-engineering of court procedure for quick disposal of cases and emphasis on human resource development.

Some of the initiatives taken by Department of Justice to aid the cause of justice delivery are as under:-

• Under the Centrally Sponsored Scheme for Judicial Infrastructure, funds are being released to States/UTs for construction of court halls, residential quarters for judicial officers, lawyers’ halls, toilet complexes and digital computer rooms that would ease the life of lawyers and litigants, thereby aiding justice delivery. As on date, Rs. 9755.51 crores have been released since the inception of the Centrally Sponsored Scheme (CSS) for Development of Infrastructure Facilities for the Judiciary in 1993-94. The number of court halls has increased from 15,818 as on 30.06.2014 to 21,271 as on 28.02.2023, and number of residential units has increased from 10,211 as on 30.06.2014 to 18,734 as on 28.02.2023, under this scheme.
• Further under the e-Courts Mission Mode Project, information and communication technology (ICT) has been leveraged for IT enablement of district and subordinate courts. The number of computerised district & subordinate courts has increased to 18,735 so far. WAN connectivity has been provided to 99.4% of court complexes.  Video conferencing facility has been enabled between 3,240 court complexes and 1,272 corresponding jails. 689 e-Sewa Kendras have been set up at court complexes to facilitate lawyers and litigants needing assistance ranging from case status, getting judgments/orders, court/case-related information, and efiling facilities. 21 virtual courts have been set up in 17 States/UTs. As on 31.01.2023, these courts have handled more than 2.53 crore cases and realized more than Rs. 359 crores in fines. E-courts Phase III is about to begin which intends to incorporate latest technology such Artificial Intelligence (AI) and Block chain to make justice delivery more robust, easy and accessible to all the stakeholders.
• Government has been regularly filling up the vacancies in higher judiciary. From 01.05.2014 to 07.03.2023, 54 Judges were appointed in Supreme Court. 887 new Judges were appointed and 646 Additional Judges were made permanent in the High Courts. Sanctioned strength of Judges of High Courts has been increased from 906 in May, 2014 to 1114 currently. sanctioned and working strength of judicial officers in district and subordinate courts has increased as follow:

However, filling up of vacancies in subordinate judiciary falls within the domain of the State Governments and high courts concerned.

• In pursuance of a Resolution passed in Chief Justices’ Conference held in April, 2015, Arrears Committees have been set up in all 25 High Courts to clear cases pending for more than five years. Arrears Committees have been set up under District courts as well.
• Under the aegis of the Fourteenth Finance Commission, the government has established Fast Track Courts for dealing with cases of heinous crimes; cases involving senior citizens, women, children etc. As on 31.01.2023, 843 Fast Track Courts are functional for heinous crimes, crimes against women, and children etc. To fast track criminal cases involving elected MPs / MLAs, ten (10) Special Courts are functional in nine (9) States/UTs.Further, the central government has approved a scheme for setting up 1023 Fast Track Special Courts (FTSCs) across the country for the expeditious disposal of pending cases of Rape under IPC and crimes under POCSO Act. As on date, 28 States/UTs have joined the scheme.
• With a view to reduce pendency and unclogging of the courts, the Government has recently amended various laws like the Negotiable Instruments (Amendment) Act, 2018, the Commercial Courts (Amendment) Act, 2018, the Specific Relief (Amendment) Act, 2018, the Arbitration and Conciliation (Amendment) Act, 2019 and the Criminal Laws (Amendment) Act, 2018.
• Alternate Dispute Resolution methods have been promoted wholeheartedly. Accordingly, the Commercial Courts Act, 2015 was amended on 20 th August, 2018 making Pre-institution Mediation and Settlement (PIMS)  mandatory in case of commercial disputes. Amendment to the Arbitration and Conciliation Act, 1996 has been made by the Arbitration and Conciliation (Amendment) Act 2015 for expediting the speedy resolution of disputes by prescribing timelines.
• LokAdalat is an important Alternative Disputes Resolution Mechanism available to common people. It is a forum where the disputes/ cases pending in the court of law or at pre-litigation stage are settled/ compromised amicably. Under the Legal Services Authorities (LSA) Act, 1987, an award made by a LokAdalat is deemed to be a decree of a civil court and is final and binding on all parties and no appeal lies against thereto before any court. . LokAdalat is not a permanent establishment. National LokAdalats are organized simultaneously in all Taluks, Districts and High Courts on a pre-fixed date.The details of the case disposed off in LokAdalats during the last three years are as under:-
• The Government launched the Tele-Law programme in 2017, which provided an effective and reliable e-interface platform connecting the needy and disadvantaged sections seeking legal advice and consultation with panel lawyers via video conferencing, telephone and chat facilities available at the Common Service Centres (CSCs) situated in Gram Panchayat and through Tele-Law mobile App.

*Percentage Wise break-up of Tele – Law Data

• Efforts have been made to institutionalize pro bono culture and pro bono lawyering the country. A technological framework has been put in place where advocates volunteering to give their time and services for pro bono work can register as Pro Bono Advocates on NyayaBandhu (Android &iOS and Apps). NyayaBandhu Services also available on UMANG Platform. Pro Bono Panel of advocates have been initiated in 21 High Courts at the State level. Pro Bono Clubs have been started in 69 select Laws Schools to instill Pro Bono culture in budding lawyers.

This information was given by the Union Minister of Law & Justice, Shri Kiren Rijiju, in a written reply in Rajya Sabha today.

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[Mission 2024] INSIGHTS DAILY CURRENT AFFAIRS + PIB SUMMARY 23 April 2024

InstaLinks :  Insta Links help you think beyond the issue but relevant to the issue from UPSC prelims and Mains exam point of view. These linkages provided in this ‘hint’ format help you frame possible questions in your mind that might arise(or an examiner might imagine) from each current event. InstaLinks also connect every issue to their static or theoretical background. This helps you study a topic holistically and add new dimensions to every current event to help you think analytically.

Table of Contents:

GS Paper 1:

50 Years of Chipko Movement

Facts for prelims (ffp), ross ice shelf, national human rights commission (nhrc) of india, summit of the future 2024, top-tier security partner, national organ and tissue transplant organisation (notto)-id, genomic accordion, ethylene oxide in indian spices, ‘pink’ hydrogen, andaman and nicobar to establish wildlife sanctuaries, easter island.

  Syllabus: Women/Environment Movement in Indian Society

Source: DTE

  Context: The Chipko movement , which originated in the 1970s in the Himalayan villages of Reni and Mandal, marked its 50th anniversary recently .

What was the Chipko movement ?

The Chipko movement was a non-violent protest that began in the Chamoli district of Uttarakhand (then Uttar Pradesh), India, in 1973 . Led by environmental activists such as Sundarlal Bahuguna and Gaura Devi , among others, the movement aimed to prevent the felling of trees in the Himalayan region. The name “Chipko” comes from the Hindi word meaning “embrace,” as villagers hugged the trees to prevent their cutting.

The original Chipko movement dates back to 1730 when Amrita Devi Bishnoi and over 300 others from the Bishnoi sect sacrificed their lives protesting the felling of Khejarli trees in Rajasthan.)

Impact of Chipko Movement:

Other such movements include:

  Need of ‘New Chipko Movement’ at the time of environmental crisis.

• “We will endure sticks and bullets but save our trees” – these were the kind of slogans and spirit with which we had conducted the chipko movement in the 1970s and 1980s . A similar spirit needs to be displayed and all sections of society have to unite to prevent further degradation of the environment.
• People should rise and demand from the government their right to live . Apart from saving trees , this time there is a need to fight for clean air, and pure water too.
• There is a need to have a separate environmental vision document by the government, especially for Urban India . Given the recent events, political parties should expect the environment to become a focal campaign point, at least in cities .
• There is also a need for an environmental roadmap from the administration and the executive.
• It is important to study the steps taken by other countries . For instance, SO2 pollution declined by 75% in China over the last decade while in India it increased by 50%. In China, the SO2 controls were imposed on coal power plants while in the case of India, the measures are delayed until 2022 in some cases.

The Chipko Movement in the 1970s proved as a tipping point for environmental causes not just in India but the rest of the world as well. There is a need for a “Chipko 2.0”, this time led by the coordination of society and political class.

About Sunderlal Bahuguna (1927-2021):  

He spearheaded the Chipko movement in the 1970s to protect trees in the Himalayas, popularizing the slogan “ ecology is permanent economy .” He advocated for the integration of ecology and economy, emphasizing their interconnectedness. Bahuguna protested against the Tehri Dam project, undertaking a 56-day fast . He also led a 4,800 km padayatra from Kashmir to Kohima to raise awareness about Himalayan issues. Bahuguna supported women-led movements against the liquor mafia and championed the Beej Bachao Andolan to preserve Himalayan biodiversity. He received the Padma Vibhushan in 2009 for his environmental activism.

  Mains Links:

‘Women’s movement in India has not addressed the issues of women of lower social strata.’ Substantiate your view. (UPSC 2018)

Source: NDTV

Context: Researchers have discovered that the massive Ross Ice Shelf makes sudden jumps twice a day.

• These sudden shifts, akin to tremors along earthquake faults , could weaken the Ross Ice Shelf over time, potentially accelerating ice melt rates and contributing to sea level rise.
• A sudden jump occurs when two sections of ice press against each other (rubbing creates tension), just as tectonic plates on Earth cause earthquakes.
• The research team emphasises that icequakes and fractures are natural occurrences on ice shelves.

Source: NHRC

Context: During the recent Statutory Full Commission meeting organized by the National Human Rights Commission ( NHRC ) of India , chaired by Justice Shri Arun Mishra, the emphasis was placed on the need for collaborative strategies among all seven National Commissions to ensure the protection of human rights, particularly for vulnerable and marginalized sections of society.

  Context: UN Secretary-General Guterres highlights Multilateral Development Banks (MDB) reform as a key theme at the upcoming Summit of the Future during UNGA , praising the Indian G20 presidency’s efforts.

About the Summit: The Summit of the Future 2024 is a flagship event organized during the annual high-level UN General Assembly meeting in September. It focuses on key global issues, with a particular emphasis on reforming multilateral development banks (MDBs) to address contemporary challenges like poverty and climate crisis.

Originating from the Our Common Agenda report , it emphasizes renewing trust and solidarity across nations and generations. Member States aim to create a Pact for the Future, reaffirming the UN Charter, reinvigorating multilateralism, and agreeing on solutions to current and future challenges.

What are MDBs?

MDBs are international financial institutions (e.g., World Bank Group and the Asian Development Bank) aiding developing countries with financial and technical assistance to foster economic development and reduce poverty.

Recommendations by the independent expert group on MDB’s Reform (during India’s G20 presidency) include tripling annual lending levels by 2030, adopting a triple mandate for MDBs to eliminate extreme poverty, and modernizing funding models.

Context: Australia’s new National Defence Strategy (NDS) highlights In dia as a top-tier security partner , emphasizing the importance of its Comprehensive Strategic Partnership in contributing to stability in the Indo-Pacific region.

• The strategy aims to deepen defence cooperation with India through practical initiatives and information sharing.
• Australia plans to allocate $330 billion to its Integrated Investment Programme (IIP) over the next decade, indicating a commitment to enhancing defence capabilities .
• This investment is expected to raise defence spending to around 2.4% of Gross Domestic Product by 2033-34.

India and Australia are also finalizing agreements for coo peration in hydrography and air-to-air refuelling , further enhancing their strategic partnership.

Context: The Union Health Ministry has mandated that all cases of organ transplants, whether from living or deceased donors, must be assigned a unique National Organ and Tissue Transplant Organisation (NOTTO)-ID for both the donor and the recipient.

• This directive aims to curb commercial dealings in organs , particularly those involving foreign citizens.
• Hospitals are required to generate the NOTTO-ID from the NOTTO website .

NOTTO is a national-level organization under MOHFW which undertakes activities of coordination and networking for the procurement and distribution of Organs and Tissues.

Context: Mpox, a DNA virus , exhibits a unique evolutionary strategy known as the genomic accordion , involving expansions and contractions of its genome .

• Researchers identified 4-kilobase sections of the genome , previously deemed unimportant, as critical for human-to-human transmissibility and evolutionary adaptability .
• Variations in certain genes influence the virus’s evolution, with different clades exhibiting varying levels of virulence.
• Genomic surveillance plays a crucial role in understanding and combating viral outbreaks , allowing for targeted interventions to mitigate health risks and prevent global spread.

Context: Following red flags raised by food regulators in Hong Kong and Singapore regarding the presence of a cancer-causing ingredient in certain Indian spice products from some brands, the Indian government has ordered food commissioners to collect samples of spices from all manufacturing units in the country.

• The harmful substance, ethylene oxide , has been classified as a ‘Group 1 carcinogen’ by the International Agency for Research on Cancer.
• Ethylene oxide is banned for use in food items in India.

Ethylene oxide, primarily used as a sterilizing agent and insecticide , poses health risks including irritation of the eyes, skin, nose, throat, and lungs , as well as potential long-term effects on the central nervous system and carcinogenic properties.

Source: Business Line

Context: India is considering amending the Atomic Energy Act, 1962, to allow private investments in the nuclear sector, aiming to boost nuclear capacity and promote clean energy initiatives, particularly hydrogen .

• Currently, the Act restricts private ownership of nuclear plants , but proposed amendments would enable private companies to participate in certain activities , such as financing, project development, and equipment supply.
• The production of ‘pink’ hydrogen , which is generated through electrolysis powered by nuclear energy.

Types of Hydrogen based on colour codes:

  Context: Meta has unveiled its most advanced Large Language Model (LLM) yet , the Meta Llama 3, which boasts significant improvements in performance and capabilities over its predecessors .

• Available in two sizes, 8B and 70B parameters , Llama 3 is integrated into Meta’s proprietary virtual assistant, Meta AI.
• The model surpasses previous benchmarks , outperforming competitors like Google’s Gemma 7B and Mistral’s Mistral 7B in various evaluations, including language understanding and question-answering tasks.
• Meta emphasizes the responsible development of Llama 3 , providing trust and safety tools like Llama Guard 2 and Code Shield.
• Llama 3 is integrated into Meta AI and accessible for developers through platforms like Hugging Face and cloud providers such as Azure ML and Vertex AI.

Large language models (LLMs) are  artificial intelligence (AI) programs that use deep learning to process large amounts of text data . LLMs can perform a variety of tasks , including:

Translation, Summarization, Object recognition, Content generation, Classification, and Predicting .

  Context: Scientists recently discovered 160 species, with at least 50 potentially new to science , during an expedition across the Salas y Gómez Ridge to Easter Island . The findings include various marine life like squid, fish, corals, molluscs, and sea stars .

The ridge, home to over 110 seamounts , supports diverse ecosystems and is crucial for marine animal migration.

About Salas y Gómez:

It is an underwater mountain chain in the southeastern Pacific Ocean , oriented west-east from the East Pacific Rise to the Nazca Ridge . Isolated by geographic features like the Atacama Trench and the Humboldt Current System , its waters are mostly in areas beyond national jurisdiction.

About Easter Island  

It is a Chilean territory in the southeastern Pacific Ocean . Famous for its monumental statues called moai , it became a UNESCO World Heritage Site in 1995 . Chile annexed the island in 1888, granting citizenship to the Rapa Nui in 1966. It is one of the world’s most remote inhabited islands , with the nearest land over 2,000 kilometres away.

Context: The Andaman and Nicobar administration’s plan to establish wildlife sanctuaries on islands traditionally managed and inhabited by the indigenous southern Nicobarese people ignores their rights and disregards the ecological and social impacts.

The Andaman Islands consist of 572 islands, with key ones including North Andaman, South Andaman, Little Andaman, and Middle Andaman . It boasts the highest number of wildlife sanctuaries in India , totalling 96, along with 9 national parks .

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