Judiciary news and updates


The Pros and Cons of e-Courts project

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Synopsis: Pandemic has shown that the e-Courts project has the ability to revolutionize the Indian Judiciary, but its application needs to be in line with the Fundamental Right to Privacy.

Why Indian courts should use digital technologies?
  • Faster justice delivery.
  • Clearing pendency which is around 3.27 crore cases before Indian courts. Of which 85,000 have been pending for over 30 years as of June 2020 as per the e-Committee.
  • Reduce long delays and difficulties for ordinary litigants.
  • Building people’s trust in the judiciary.

To fulfil the above-given objectives, the Indian judiciary has launched project e-courts, which are monitored by the e-Committee.

Salient features of the e-Courts project:
  • Phases I and II had dealt with the digitisation of the judiciary:
    • e-filing, tracking cases online
    • uploading judgments online.
  • Draft vision document for Phase III of the e-Courts project aims for:

Read more: CJI launches SUPACE Portal— AI-driven Research Portal

What are the key benefits of the e-Courts project?
  • Phase II of the project helped in the development of the National Service and Tracking of Electronic Processes which enabled the delivery of e-summons.
  • During the COVID-19 pandemic, the Supreme Court and High Courts have been able to function online.
What are the concerns associated with the e-court project?
  • Firstly, as per Criminal Justice and Police Accountability Project, the ICJS will exacerbate existing class and caste inequalities.
    • For instance, the exercise of data creation at local police stations have historically contributed to the criminalisation of entire communities through colonial-era laws such as the Criminal Tribes Act of 1871.
    • It helped in labelling such communities as “habitual offenders”.
    • ICJIS also has the potential to label citizen with such tags.
  • Secondly, large-scale gathering and sharing of data with no data protection regime present in India may cause data theft, cybersecurity issues and online harassment.
  • Thirdly, Localised data will be centralised by the Ministry of home affairs will lead to :
    • Creation of a 360-degree profile of each person by integrating all of their interactions with government agencies into a unified database.
    • This approach is used by social media platforms and technology companies for targeted advertisement, but data collection by the government may end up as “targeted surveillance”.
  • Fourthly, it is not clear that why Home Ministry needs access to court data which has absolutely no relation to criminal law.
Way forward:
  • Firstly, the e-Courts project must move towards localization of data. Also, e-Committee must prevent the seamless exchange of data between the branches of the state that should remain separate.
  • Secondly, collected data need to be stored in an anonymous and aggregated manner.
  • Thirdly, the Supreme Court need to ensure that the e-courts project does not violate the privacy standards that it set in Puttaswamy v. Union of India (2017).
  • Fourthly, active participation of citizen should be there as when data of the courts and police stations are integrated, the link is individual citizen.

Digital Technology can play a huge role in the faster delivery of justice. However, the privacy and fundamental rights of citizens need to be protected as the technology is only a means, not an end in itself.

Source: The Hindu

Posted in 9 PM Daily Articles, daily news, Daily News Updates, PUBLICTagged

SC releases draft model rules for live-streaming and Recording of court proceedings

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What is the news?

The Supreme Court e-Committee headed by Justice D.Y. Chandrachud has released the “Draft Model Rules for Live-Streaming and Recording of Court Proceedings”.

Note: Right to access live court proceedings is a part of the right of access to justice guaranteed under Article 21 of the Constitution.

Read Also :-What is Monetary Policy Committee

Draft Rules for Live-Streaming and Recording of Court Proceedings:
  • Prepared by: The Model Rules were framed by a sub-committee consisting of judges of the Bombay, Delhi, Madras and Karnataka High Courts.
  • Part of: The rules are part of the National Policy and Action Plan for implementation of Information and Communication Technology (ICT) in the judiciary.
  • Coverage: The rules would cover live-streaming and recording of proceedings in High Courts, lower courts and tribunals.
  • Significance: The draft rules are a step towards implementing Swapnil Tripathi and Indira Jaising 2018 judgement of the Supreme Court.
    • In this judgement, SC held that telecast of important cases to an audience outside the courtroom would usher in greater transparency and aid accountability.
Key Features of the Draft Rules:
  • Prior information of live-stream: The Court has to duly inform the parties before the commencement of proceedings that the proceedings are being live-streamed. If any objections are there, they should be mentioned before the concerned bench. However, the final decision lies with the bench.
  • Delay of 10 minutes: There shall be a delay of 10 minutes in live-streaming, which may be changed as per directions of the Court.
  • No reveal of personal information: Personal information such as date of birth, home address, identity card number, bank account information and the personal information of related parties will be deleted or muted.
  • The judge can pause or stop the live stream: A remote-control device shall be provided to the presiding judge on the bench to pause or stop the live streaming at any time.
  • Unauthorized usage of Livestream will be punishable: The unauthorized usage of the live stream will be punishable as an offence under the Indian Copyright Act, Information Technology Act and other provisions of law, including the law of contempt.

Exemption of Cases: The following cases will be excluded from live-streaming:

  • Matrimonial matters and cases concerning sexual offences and gender-based violence against women.
  • Matters registered under the Protection of Children from Sexual Offences Act, 2012 (POCSO) and Juvenile Justice Act,2015.
  • Cases that may provoke enmity amongst communities, likely to result in a breach of law and order.
  • Recording of evidence, including cross-examination.
  • Any other matter in which a specific direction is issued by the Bench or the Chief Justice.

Source: The Hindu

Posted in Daily Factly articles, Factly: Polity and Nation, PUBLICTagged

Judicial Governance during Pandemic – Explained, Pointwise

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Introduction

The judiciary is referred to as the custodian of the constitution and protector of fundamental rights. It is the supreme authority responsible to punish the violators of fundamental rights and civil liberties. In this regard, it also has the power to review the decisions of the executive as mandated by Article 13. Further, under Article 142, it can pass any order for doing complete justice.

Both of these have been the source of power for Judicial Activism. It is a philosophy that motivates judges to go beyond the traditional precedents in favor of progressive and new social policies.

This activism has been widely used during the 2nd wave of the pandemic. It was mainly to direct the government towards a more citizen-centric path. However, some experts are calling it an act of judicial governance. In this article, we will describe the pros and cons of judicial governance. Further, some suggestions would be provided to direct the future course of action.

Understanding Judicial Activism and Judicial Governance:
  • Judicial Activism is a “judicial philosophy which motivates judges to depart from the traditional precedents in favor of progressive and new social policies”.
  • It empowers judges to use their powers to correct injustices. It happens especially when the other branches of government do not act to do so.
  • Judicial Governance is when the judiciary assumes the role and functions of the executive and manages governance. Unrestrained activism on the part of the judiciary often leads to judicial governance. 
Judicial Conduct during the pandemic times
  • The Supreme Court’s verdict in the Election Commission of India case is an example of judicial statesmanship. The SC  beautifully dissolved the conflict between EC and the HC, avoiding a positive pronouncement either way. 
  • It has recorded an appreciation of the performance of the EC and nullified the effect of oral observations. As per SC, the observations during the course of the hearing do not constitute a judgment or binding decision.
    • The Madras High court had accused EC of spreading the second wave of pandemic. It further opinionated that its officers should be booked for murder charges.
    • The EC then approached the Supreme Court against such allegations claiming it as an act to undermine its credibility.
  • However, as per some experts, many orders have been passed by courts that extend beyond the boundary of activism and can be called Judicial governance.
    • The Allahabad High Court ordered to fix a “minimum” ex gratia of Rs1 crore for every official who succumbed to the pandemic because of panchayat election duty. Although, the state government had fixed an amount of 30 lakhs.
    • The Kerala High Court ordered a ceiling on charges in private hospitals for Covid-19 treatment. 
    • The Delhi High Court has been almost micromanaging pandemic management, fixing oxygen quota and distribution. It even issued a contempt notice to the Centre on the oxygen issue, which the Supreme Court dismissed. 
    • The Uttarakhand High Court pulled up the state government for allowing the Kumbh Mela to go ahead against scientific advice, and then, for not following standard operating procedures.
Provisions/ Tools allowing the judiciary to do Activism
  • Article 13 of the Indian Constitution read with Article 32 and 226 allows the higher judiciary to review and declare void any law which is inconsistent with the fundamental rights.
  • Article 142 provides that the Supreme Court in the exercise of its jurisdiction may pass such a decree or order as is necessary for doing complete justice.
  • The introduction of PIL (Public interest litigation) has broadened the scope of the judiciary for doing activism.
  • Similarly, there are international statutes like the Universal Declaration of Human Rights that are used by courts for doing judicial activism.
Factors demanding judicial governance
  • Using judge’s wisdom when the law fails: Many sensitive issues need a different perspective and care which laws don’t allow. Judicial activism allows a judge to use his personal judgment in situations where the law fails. This was seen in the triple talaq case.
  • Filling the legal vacuum: It gives judges a personal voice to fight unjust issues which though important but evade the eye of the legislature. For example, SC formulated Vishakha Guidelines for countering harassment against women at the workplace.
  • Check on Legislative and executive: It provides a system of checks and balances to the other government branches. For example, SC laid conditions for the imposition of Governor Rule in states in S.R. Bommai Case. This was aimed to bring objectivity in the application of the rule.
  • Social Engineering: Judicial governance allows judges to adjudicate in favor of progressive and new social policies helping in social engineering. 
    • For instance, in Indian Council for Enviro-Legal Action Case 1999, the SC adopted the polluter pays principle for environment conservation. 
    • It meant that financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution.

However, activism must be done cautiously or else it may get converted into judicial governance.

Why Judicial Governance is not good?
  • Against Separation of Power (SOP): Judicial governance destroys the spirit of ‘separation of powers’ between Legislative, Executive, and Judiciary as enshrined in the constitution.
    • SOP is a model that divides the government into separate branches, each of which has separate and independent powers.
  • Expertise in a particular field: The courts don’t have expertise in the field of administration, unlike the administrative authorities. Hence, unnecessary intervention should be avoided.
    • For instance, in one of the orders, a high court insisted on controlled re-opening of the city. And this was without even telling what constitutes ‘controlled re-opening.
  • Impracticable Solutions: The courts lack the machinery to deal with highly sensitive and technical issues. Due to this, they end up giving impracticable solutions. 
    • For instance, the Allahabad High Court’s order to the UP government to consider a state lockdown was returned with the answer that yes, it was considered, but it was not needed.  
  • Disincentivization: Severely critical observations over administrative actions act as disincentive to honest and dutiful officials. They have been working day and night to fight the unpredictable pandemic whose characteristics are not yet fully known to science.
  • Undemocratic Nature: Judicial governance appears as an act of ‘tyranny of unelected’ in a democracy. The executive remains “accountable” to the people through a 5-year election process, but judges exercise self-regulation and are accountable only to themselves.
  • Wastage of court’s time: It is a wastage of the court’s time, which can otherwise be used for adjudicating other important matters relating to public importance pending before the court.
    • For instance in National Anthem Case 2016, the SC mandated all cinema halls to play the National Anthem before a film starts in movie halls. However, this decision was reversed later on, and it consumed a significant portion of judicial time.  
Suggestions
  • First, the adjudication must be done within the system of historically validated restraints and conscious minimization of the judge’s preferences.
  • Second, the decision of the administrators should not be interfered with unless it is clearly violative of some statute or is shockingly arbitrary. In times of Pandemic, the response and strategy of the nation should be driven by expert medical and scientific opinion; not by judicial interference. 
  • Third, the judiciary must resort to self-imposed discipline and self-restraint in order to prevent judicial governance.
  • Fourth, the courts have to be cautious that they do not knowingly or unknowingly become a source of obstruction in the performance of states’ obligations.  
Conclusion

Judiciary should prevent interference in the domain and work of the executive as mandated by the concept of separation of powers. Judicial activism would be counterproductive and would fail in achieving its laudable purpose if it assumes the role of judicial governance. It is one thing to direct the executive to perform. However, it is another thing to say “if you do not do it, we will do it ourselves”.

Posted in 7 PM, PUBLICTagged ,

A Case of Declining Judicial Federalism in India

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Synopsis: SC transferred all oxygen supply-related cases in various High Courts. It did so, in the name of prioritising uniformity across nations in the distribution of essential services. This step of SC is against Judicial Federalism in India.

Background
  • In Parmanand Katara v. Union of India (1989), the Supreme Court said that ‘the right to emergency medical treatment is part of the citizen’s fundamental rights.
  • The lack of oxygen supply during the Covid-19 crisis prompted many hospitals to file pleas in their respective High court lately. They wanted to defend their right to emergency medical treatment.
  • Accordingly, the High Courts of Delhi, Gujarat, Madras, and Bombay issued a series of directions to the executive. For instance,
      • Bombay High Court, directed immediate restoration of oxygen supply that had been reduced from the Bhilai steel plant in Chhattisgarh.
      • The Delhi High Court directed the Central government to ensure adequate measures for the supply of oxygen.
  • Later, the Supreme court (SC) took suo motu cognisance of the issue and hinted the possibility of shifting the cases related to oxygen supply to supreme court from high courts.
  • The SC said that the distribution of essential services needs uniformity across the nation. Further, it asked the Central government to prepare a national plan for the same.
  • However, several senior lawyers have criticized the intervention by the Supreme Court while High Courts were already hearing the issues.
  • This move by the SC is against judicial federalism in India.
Why the decision of SC is seen as an attack against Judicial federalism in India?
  1. First, Article 139A of the Constitution empowers the SC to transfer cases from the High Courts to itself if cases involve the same questions of law.
    • However, the SC’s contemporary conduct of being indifferent towards executive actions in significant cases has cast doubt over Judiciary. For instance,
    • The SC did not use article 139A to hear cases related to the Internet ban in Kashmir or activists and journalists who were arrested and detained.
  2. Second, many lawyers viewed this as an act of “arrogance of power” and contempt for and disregard of the High Courts in the country.
  3. Third, declining of trust over SC to provide deliberative justice. SC sits in two or more benches to deliberate and dissent upon significant issues. However, In recent years, there is a lack of dissent in issues that have serious political implications.
  4. Fourth, public health and hospitals come under the State List. And the respective High Courts have been dealing with specific challenges at the regional level. It did not warrant any interference from the SC.
  5. Fifth, In L. Chandra Kumar v. Union of India (1997), the SC itself has said that the High Courts have significant advantage in winning the confidence of the people. Further, the power of the High Court under Article 226 to issue writs is wider than the Supreme Court’s under Article 32.
Way forward
  • Need to learn from the good practices of the American Judicial System. The U.S. Supreme Court reviews only a few cases from state courts. It ensures autonomy in the application of federal law for the State courts.
  • Further, the need for a uniform judicial order across India is needed only in cases of conflict of laws or judgments on legal interpretation. Otherwise, autonomy, not uniformity, and decentralisation not centrism should be the rule.

 

Source: The Hindu

 

Posted in 9 PM Daily Articles, daily news, PUBLICTagged ,

The New CJI Needs to Address Present Issues in Judiciary

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Synopsis:
The new Chief Justice must seriously consider the Challenges in Judiciary. He must free himself from the bias in constituting benches. Also, he should take concrete steps to revitalise the administration of justice.

Introduction:

Justice N V Ramana will be the next Chief Justice of India. But there are certain serious challenges in Judiciary. One of the most important ones is to reform the Judiciary to provide “Justice to all”.

Constitution on Supreme Court:
  1. The framers of the Constitution understood the importance of the oath of office of judges of the Supreme Court of India (SC). They carefully designed its language.
    • The oath contains “without fear or favour” to “uphold the constitution and the laws”. These words show the significance and stress the court to a ferociously independent.
  2. Similarly, 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”
Constituent Assembly debate on Separation of Judiciary:
  • K T Shah moved an amendment to Article 50 proposed an important amendment. He proposed “separation of powers as between the principal organs of the State. I.e., the Legislative, the Executive, and the Judicial. He mentions the separation of Judiciary alone will result in the following. Such as,
    1. This will make Judiciary open to suspicion from the Executive and the Legislative
    2. The separation of Judiciary and Executive will also rule out the possibility of translation from a high judicial office to an equally high executive office and vice versa.
    3. Over a period of time, the Judiciary will suffer from their personal privileges or personal ambitions.
    4. Overall, this will affect the civil liberties in the country.
  • On the other hand, Shibban Lal Saxena was of the opinion that the complete independence of the Judiciary from the state was an important one.
    1. He mentions that the High Courts at that time were are not independent. They are influenced by the political consequences of their actions.
    2. So he wanted the future Judiciary to be free from these influences.
    3. Further, he also mentioned that the Supreme court has to observe the principles inherent in the constitution. I.e. a clear-cut mention of functions and procedures to avoid any influence of government in the Judiciary.
  • But B R Ambedkar rejected these views. Furthermore, he was of the opinion that the chances of influencing the conduct of a member of the judiciary by the Government are very less.
    1. He predicted that the judiciary will very rarely decide the cases between citizens and the Government.
    2. He also predicted that the judiciary will decide the cases in which the Government has very little or no interest at all.
    3. But history shows even a great man can go wrong. Today the Judiciary is deciding numerous cases in which the government has a direct interest. CJI being a Master of the Roster is constituting these benches and allocate matters.
Challenges in Judiciary:

There are various challenges in Judiciary. These are,

  • The SC is expected to look for strict accountability from the legislature and executive. Moreover, the SC also corrects any violation of the Constitution and laws. But this is not happening in reality. There are many instances where the court sided executive of the day and not stand for the people of India.
  • The Judiciary is also facing few fundamental challenges. Such as,
    1. Millions of cases pending in Judiciary
    2. Quality of Judges and Judiciary
    3. Organisational issues in the Judiciary such as gender gap in Judiciary, etc.
    4. Challenges to integrity and impartiality of Judiciary.
  • All these challenges in the Judiciary deprive and elude Justice to the common man, especially the vulnerable sections of society. The present CJI also highlighted this deprivation of Justice.
Suggestions to improve the Judiciary:
  1. 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.
  2. Revitalising the administration of justice: This is feasible if the CJI take concrete steps such as
    • Freeing himself from the bias in constituting benches and allocating cases
    • He can seriously introspect and review the actions of his immediate predecessors,
  3. All this will restore the “rule of law” and the proper fulfilment of the provisions of the Constitution.

During the  NJAC judgment (2015) one of the Judges observed that the decisions of CJI have immeasurable political and financial consequences. Further, he also mentions the far-reaching public interest of CJI’s decisions. So, the current CJI has to make serious efforts to address these challenges.

Source: The Indian Express

Posted in 9 PM Daily Articles, PUBLICTagged

SC Guidelines for “Appointment of Ad-hoc Judges” in HCs

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What is the News?

The Supreme Court has cleared the way for the appointment of retired judges as ad-hoc judges in High Courts under Article 224A of the Constitution. This has been done to deal with the increasing backlog of cases in High Courts.

Guidelines: For the appointment of ad hoc judges, the Supreme Court laid down several guidelines. The guidelines are:

Appointment of ad-hoc Judges: The Chief Justice of a High Court may initiate the process of recommending an ad-hodge judge if:

  1. The number of judges’ vacancies is more than 20% of the sanctioned strength
  2. Cases in a particular category are pending for over five years.
  3. More than 10% of pending cases are over five years old or
  4. The percentage of the rate of disposal is lower than the institution of the cases either in a particular subject matter or generally in the court.
Appointment Procedure:
  • The appointments can follow the procedure laid down in the Memorandum of Procedure (MoP) for the appointment of judges.
  • 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.
  • The Court observed that a period of three months would be sufficient to complete the appointment process.

Number of ad-hoc judges

  • The number of ad hoc Judges should be in the range of 2 to 5 in a High Court.
Role of Ad-hoc Judges:
  • Since the objective was to clear the backlog, the ad-hoc judges can be assigned more than five-year-old cases. This would also not affect the High Court Chief Justice’s discretion to allot any other cases.
  • A division bench constituting of only ad-hoc judges can also hear old cases.
  • Further, the SC barred ad-hoc appointees from performing any other legal work – advisory, arbitration, or appearing in court for clients.
  • SC also stated that ad-hoc appointments cannot be a substitute for regular vacancies. Thus, article 224A can only be used when recommendations for at least 20% of regular vacancies have been made. And now their appointments are awaited.

Source: Indian Express


A Lost Opportunity to Reform the Educational System

 

Posted in Daily Factly articles, Factly: Polity and Nation, PUBLICTagged

Supreme Court Sets timeline for Appointment of Judges

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What is the News?

The Supreme Court of India sets a timeline for the Centre to clear names recommended by the Collegium.

What was the case?
  • The issue of judicial vacancies came up when the Supreme court was hearing a petition seeking transfer of a case from the Orissa High Court due to the lawyers’ strike there.
  • The Supreme Court said that the High Courts are in a crisis-like situation. There are almost 40% vacancies in the High Courts. Many of the larger High Courts are working under 50% of their sanctioned strength.
  • Furthermore, the SC collegium has cleared several names for the appointment to various high courts. But the law ministry is yet to clear the names. Importantly, the Memorandum of Procedure(MoP) does not prescribe any time limit to make the decision for the Central Government.
What is the timeline set by the Supreme Court?
  • Firstly, the Intelligence Bureau (IB) should submit its report/ inputs within 4 to 6 weeks. Duration will start from the date of recommendation of the High Court Collegium to the Central Government.
  • Secondly, the Central Government shall forward the recommendations to the Supreme Court within 8 to 12 weeks. The duration would start from the receipt of views from the State Government and the report/ input from the IB.
  • Further, after the Supreme Court collegium clears the names for appointments, the Central Government can proceed to make the appointment immediately.
  • However, if the Government has any reservations on the suitability or in the public interest, It can send back the recommendations to the Supreme Court Collegium.
  • But if the Supreme Court Collegium, after reconsideration still reiterates the recommendation(s) unanimously, such appointment should be processed. Appointments should be made within 3 to 4 weeks.

Source: Indian Express


The Collegium System – Explained Pointwise

Posted in Daily Factly articles, daily news, Daily News Updates, Factly: Polity and Nation, PUBLICTagged

What is “Memorandum of Procedure(MoP)”?

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What is the News? The Supreme Court of India has laid down a timeline for the Centre to clear names recommended by the High Court Collegiums. This order is essentially contrary to the Memorandum of Procedure(MoP).

About Memorandum of Procedure(MoP):
  • Memorandum of Procedure(MoP) is an agreement between the judiciary and the government. It contains a set of guidelines for making appointments to the Supreme Court and High Court.
  • Significance: The MoP is a crucial document as the Collegium system of appointing judges is a judicial innovation that is not mandated through legislation or text of the Constitution.
Evolution of MoP:
  • The MoP evolved based on three SC decisions – the First Judges Case (1981), Second Judges Case (1993), and the Third Judges Case (1998).
  • In 2016, the MoP re-negotiations took place following the Supreme Court’s decision to strike down the National Judicial Appointments Commission(NJAC).
  • However, a judicial order can overturn the negotiations as an order of the SC is the law of the land binding the government.
MoP on the appointment of High Court Judges:
  • MoP starts with the recommendation of the High Court Collegium to the center for the appointment of other judges. The Chief Justice of the High Court(HC) heads the collegium.
  • Once the center receives recommendations, it asks for the opinion of state governments and the input from the Intelligence Bureau (IB).
  • The government then forwards the files, along with the IB inputs to the Supreme Court collegium.
  • If the Supreme Court collegium clears the names, the files return to the central government. It then either notifies the appointments or sends them back with objections or its views.
  • At this stage, the Supreme court collegium can seek additional inputs on the government’s opinion. Accordingly, it can either reject or reiterate the proposal.
  • If the collegium reiterates its decision, then, under the MoP, the government is bound to notify the appointments.
  • However, the MoP does not specify a timeframe for the central government to act on a collegium decision.

Source: Indian Express

Issue of Gender Gap in Judiciary – Explained, Pointwise

Posted in Daily Factly articles, daily news, Daily News Updates, Factly: Polity and Nation, PUBLICTagged

Issue of Gender Gap in Judiciary – Explained, Pointwise

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Introduction

The issue of a gender gap in the judiciary is in the spotlight after a plea filed by the Supreme Court Women Lawyers Association in Supreme Court (SC). The plea advocated for increasing women participation in the judicial set up in order to augment gender justice.

The participation of women in the judiciary so far has remained minuscule, especially at higher levels. Therefore, an attitudinal change, along with a strong will to attain gender equality is needed amongst the male judges, in order to curb the gender gap in the judiciary.  

Current Gender Gap in Judiciary
  • Almost 70 years have passed since the independence, but, the Supreme Court could witness the appointment of only 8 women judges so far.
    1. Justice Fathima Beevi became the first woman to be appointed as SC judge in 1989. 
    2. After this, there are only 7 more appointments to date. The last ones being Justices Indu Malhotra and Indira Banerjee in 2018.
    3. Currently, one woman judge is present in the SC.
    4. So far, No women Judge has held the position of the Chief Justice of India.
  • In 25 High Courts, only 81 women judges are present out of 1078. This portrays the glaring inequalities in the judicial setup.
  • Similarly, women represent 48 per cent of our population, but they constitute only 28 per cent of district court judges
Why is such a Gender Gap is prevalent?

Both the government and collegium system is responsible for such dismal performance.

  • The government appointed only one woman judge till 1989, while hundreds of males got appointed to SC.
  • After 1993, the collegium became the ultimate authority to recommend names to SC. But this group also missed the opportunity to recommend more women judges. So far only 7 women judges have been appointed to the SC based on the recommendation of the Collegium. 
Important Article and cases
  • Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President. He/she should consult such a number of the Judges of the Supreme Court and of the High Courts in the States as he/she may deem necessary for the purpose.
    • First Judges Case – In this case, the court held that the President is not bound by CJI’s advice.
    • From the Second Judges Case (1993) – the Collegium system evolved and start making appointments.
Need to bridge the gender gap in Judiciary
  1. Principle of Reasonable representation: As per this, there has to be more women judges as they constitute almost 50% of the Indian population, but are highly underrepresented in the judiciary. 
  2. The credibility of Judgements: The judiciary is the protector of fundamental rights. Further, it gives various judgements for enhancing inclusive participation and equality in society. If the institution itself lacks these principles, then the worth of its judgements/ advisories/ directives will get diminished.
  3. Public Confidence: More women will bring diversified perspectives that would improve fairness in decision-making. This will automatically strengthen the public’s confidence in the judicial setup.
  4. International Obligations: Sustainable Development Goal 5 of UN calls for attaining gender equality. Greater participation of women in the judiciary will act as a prudent step in this direction.
  5. Lack of Gender sensitivity in the Court Judgements:
    1. There are cases in which marital rape was not acknowledged as a crime. Few For example,
      • SC recently granted bail to a government servant who is accused of repeated rape and torture of a 16-year-old child.
      • During this hearing, CJI questioned that “When two people are living as husband and wife, however brutal the husband is, can the act of intercourse between them be called rape?”
    2. There are also instances when the court upheld the superiority of society’s attitude toward women against the rights of Women.
      • For example, In Narendra vs K. Meena (2016), the SC said that under Hindu traditions, a wife after marriage is supposed to fully integrate herself with her husband’s family. Further, the court held that the refusal of women to live with in-laws amounts to cruelty. Therefore, the husband is entitled to divorce her under the Hindu Marriage Act.
    3. Apart from that, there are other instances as well when women protection laws are diluted without considering the sensitivity of the issue. Such as the intervention of the court against the right of a woman to marry according to her will. For example,
      • The infamous Hadiya (2017) case: The woman’s father accused her that she was forcefully converted to Islam. Though, Hadia had denied it repeatedly. But, the court ordered an investigation by the National Investigation Agency for looking into the matter of marriage of two adults.
Challenges in bridging the gender gap in the judiciary

There are some hurdles to bridge the gender gap in the judiciary.

  1. Seniority Principle: This principle is followed in case of appointments to the higher judiciary. However, strict adherence to this also discourages more women appointments.
  2. Insensitive Attitude: Many judges feel that there are fewer women judges, and they also lack the desired qualities of Judges.
  3. Neglect of Academic Community: The collegium or government doesn’t appoint any distinguished jurist (like a law professor) to the supreme court
  4. Liberal stance of Collegium might impact the quality of Justice: Providing reservations for women might impact the quality of Justice as there might be a chance where a woman Judge is get appointed only to fill the reservation.   
Suggestions to improve Gender Gap in Judiciary
  • The willpower towards women empowerment needs to be enhanced in the judicial branch through sensitization workshops and gender-sensitive training.
    • They must realize that women take a longer path to success that is often interrupted by childbirth and childcare.
  • The government and Judiciary can provide relaxation to the seniority principle. This will ensure gender balance on the bench of the top court.
  • The collegium should diversify the appointment process in order to bridge the humongous gender gap. They can also recommend a distinguished women jurist for appointment to SC as permitted by Article 124 of the Indian Constitution. Such appointments can help in tackling the criteria of geographical representation in the supreme court, as many times there are no women judges in a particular geography.
  • Encouraging more women to take up the profession: Both the government and the Bar Council of India has to take adequate steps to include more women to take up the Lawyer profession. This will improve the quality of women lawyers in the long run.
  • Creating a road map towards bridging the gender gap: SC has to take the plea filed by Supreme Court Women Lawyers Association as an opportunity. Utilising that, the SC has to create a vision document to bridge the gender gap in Judiciary.
Conclusion

The collegium should now take a liberal stance towards women judges and must ensure at least 5-6 women judges are present in SC at least within a decade. This will not only ensure gender parity but will also give India its first female chief justice. 

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Government to Decide on Collegium Recommendations for HC judges

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What is the News?

The Supreme Court Collegium recommended Judges for the appointment in the High Courts. But it is pending for more than 6 months. So, the Union government recently decided to consider the SC recommendations within three months.

What was the case?
  • The Supreme Court took suo motu cognizance on the matter relating to numerous vacancies in 25 high courts across India.
  • According to the Ministry of Law, over 38%(more than 400) of sanctioned posts of judges are lying vacant across all the high courts in the country.
  • Furthermore, the SC collegium cleared several names for the appointment to various high courts. But the law ministry is yet to announce the names.
What has the Supreme Court said on this matter?
  • The Supreme Court asked the Attorney General to make a statement about the timeline within which the Centre will decide the collegium proposals.
What has the Centre replied?
  1. The Central Government blamed the High Courts for the vacancies. The government mentioned that the High Courts are expected to send the recommendations 6 months prior to the occurrence of vacancies. But, that is not happening.
  2. On this, the Supreme Court held that there are two timelines.
    • One for the government and another for the HCs. The Chief Justice will deal with the High Court timelines.
    • But the government also has to provide its own timeline.
  3. Then the Attorney General said that the Central Government will follow the timelines prescribed in the Memorandum of Procedure(MoP) to appoint judges to high courts.
    • The memorandum of Procedure(MoP) does not insist on a deadline, but it only mentions that the process should be completed within a reasonable time.

Source: The Hindu

Posted in Daily Factly articles, Factly: Polity and Nation, PUBLICTagged

Inauguration of “Judgments and Orders Portal” and “e-Filing 3.0 module”

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What is the News?

D.Y.Chandrachud, Judge of Supreme Court and Chairperson, e-Committee of the Supreme Court inaugurated two new initiatives. One is the Judgments and Orders Portal and the other is an e-Filing 3.0 module.

The Pune-based e-Courts project team developed these two initiatives. These initiatives aim to strengthen the legal system in the country.

About Judgments and Orders Portal:
  • Judgments and Orders search portal is a repository of judgments pronounced by various High Courts in the country. It provides a facility to search judgments and final orders based on multiple search criteria.
  • Features: The main features of the portal are:
    • Free text search facilitates user to search judgments based on any keyword or combination of multiple keywords
    • Also, users can search judgments based on various criteria like bench, case type, case number, year, petitioner/ respondent name, judge name, etc.
About e-Filing 3.0 module:
  • The E-Filing 3.0 module allows the electronic filing of court documents.
  • Under the module, there will be no need for lawyers or clients to visit the court premises for filing a case. Further, the filing process can take place even when the court, client, and lawyer are at three different locations.
 About E-Courts Project:
  • eCourts is a Pan-India Project. The Department of Justice, Ministry of Law and Justice, monitors and funds this project. These are available for the District Courts across the country.
  • The Project was conceptualized on the basis of the National Policy and Action Plan. The national policy aims at the Implementation of Information and Communication Technology (ICT) in the Indian Judiciary in 2005. Similarly, the aim of the project is to transform the Indian Judiciary by ICT-enabled courts.
  • Objectives: The main objectives of the Project are:
    • To provide efficient & time-bound citizen-centric service delivery.
    • To develop, install & implement decision support systems in courts.
    • Also, to automate the processes to provide transparency of Information access to its stakeholders.
    • Further, to enhance judicial productivity and to make the justice delivery system affordable, accessible, and cost-effective.
About E-Committee:
  • The e-Committee was set up in 2004. It provides a guide map for use of information technology and administrative reforms in the Indian judiciary.
  • For that, the committee assists the CJI in formulating a national policy on the computerization of the judiciary.

Source: PIB

Posted in Daily Factly articles, Factly: Polity and Nation, PUBLICTagged

Performance Analysis of Lok Adalats in India

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Synopsis:

The Lok Adalats (People’s Court) have been functioning in India since the last 38 years. They have successfully solved lakhs of cases that have reduced the judicial burden. However, some experts question their efficacy as they tend to neglect justice for speedier resolution. 

Background:
  • Lok Adalats established to provide quick, accessible and affordable justice to masses. This prevents delay in justice delivery as justice delayed is justice denied.
  • It is a type of Alternate Dispute Resolution mechanism outside the formal judicial process.

History of Lok Adalats:

  • Harivallabh Parikh (a disciple of Mahatma Gandhi) in Rangpur, Gujarat in 1949, popularised it.
  • Later on, the Legal Services Authorities Act, 1987 passed by Parliament to achieve the constitutional mandate of Article 39A. The article aims to ensure equal justice and free legal aid for everyone.
  • The act aimed to
    • Provide free and competent legal services to weaker sections of the society
    • Organise Lok Adalats that would give people an equal opportunity to seek justice.
Why do people go to Lok Adalats?
  • Firstly, Huge Pendency in Formal Judicial System: As per National Judicial Data Grid there exists enormous pendencies in the formal judicial setup. 
    • More than 3 crore cases are pending in district and subordinate courts, over 57 lakhs in high courts and above 66000 in supreme court.
    • As per a rough estimation, it will take around 320 years to settle the existing backlog.
  • Secondly, Greater Control: As it is a party-driven process, it encourages parties to reach an amicable settlement.
  • Thirdly, Speed: Sometimes lakhs of cases are disposed in a single day which is not possible even in other Alternate mechanisms like arbitration, conciliation etc.
  • Fourthly, Flexibility: Lok adalat is not bound by procedural laws like the Code of Civil Procedure, 1908, or the Indian Evidence Act, 1872.
  • Fifthly, Affordability: No fees are charged from parties by the Lok Adalat.
  • Sixthly, Finality of Awards: The award of Lok Adalat is like a civil court’s decree but can’t be appealed in the formal courts. Hence, cases are not dragged on for years and speedier settlement takes place.
Performance:
  • They are regularly organised to help parties reach a compromise. Core Subject matters of Lok Adalats include motor-accident claims, disputes related to public-utility services, cases related to dishonour of cheques etc.
  • As per the estimates of National Legal Services Authority (NALSA) – State Adalats disposed of around 52 lakh cases between 2016-20. 
  • Similarly, the (National Lok Adalats) NLAs have disposed of a total of 2.93 crore cases in the same period. 
  • E-Lok Adalats were organized at both the national and State level to overcome the pandemic challenge. The first national e-Lok Adalat disposed of around 10.5 lakh cases.
Issues:
  • A fall in performance is witnessed since 2017. NLAs now cover a variety of subjects while earlier they were subject matter-specific. The average cases settled by NLAs in 2015 were around 18 lakhs. It has now reduced to 13.3 lakhs in 2019 as per NALSA’s data.
  • Similarly, the efficiency of E-Lok adalats is not at par with physical Lok adalats.
  • It is conciliatory in nature. Therefore, it is alleged that justice is sometimes undermined to do speedy disposal as conciliation doesn’t always lead to justice delivery.
  • Unequal bargaining power exists between the parties. Strong parties like insurance companies, electricity boards etc. can easily put pressure on a poor person to accept discriminatory awards.
Way Forward:
  • The Lok Adalats must look beyond swift disposal of cases and focus on just and fair outcomes as justice hurried is justice buried. 
  • There is a need to take some concrete and innovative steps by the legislature or the judiciary to improve the quality of justice rendered by Adalats. 

Revamping of Lok adalat along with initiation of phase 3 of e- courts project can be a game changer in improving the efficiency of the dispute settlement.

Source: The Hindu

Posted in 9 PM Daily Articles, PUBLICTagged

CJI launches “SUPACE Portal”— AI-driven Research Portal

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What is the News? The Chief Justice of India launches the Supreme Court’s “SUPACE Portal”.

About SUPACE Portal:
  • Full-Form: SUPACE stands for Supreme Court Portal for Assistance in Court’s Efficiency.
  • Purpose: It is an artificial intelligence-based portal. It will make the research work easier for judges, thereby easing their workload.
  • Key Features of the Portal:
    • The portal collects relevant facts and laws and makes them available to a judge.
    • The portal is not designed to make decisions. It only processes facts and makes them available to judges, looking for input for a decision.
What is Artificial Intelligence?
  • Firstly, Artificial Intelligence is a branch of computer science concerned with making computers behave like humans.
  • Secondly, it refers to the ability of machines to perform cognitive tasks like thinking, perceiving, learning, problem-solving and decision-making.

Note: During the inauguration of Portal, CJI has said that: “Artificial Intelligence(AI) is to the intellect, what muscle memory is to the mind”.

Source: Indian Express

Posted in Daily Factly articles, Factly: Polity and Nation, Factly: Science and Technology, PUBLICTagged ,

Justice N.V. Ramana – the next “Chief Justice of India(CJI)”

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What is the News?

The President of India appointed Justice N.V. Ramana as the next Chief Justice of India.

Appointment of CJI and other Judges:

The Chief Justice of India (CJI) and the other judges of the Supreme Court are appointed by the President of India under Article 124(2) of the Constitution.

Constitution on appointment of CJI:
  • The Constitution of India does not have any specific provision for criteria and procedure for appointing the CJI.
  • Article 124(1) and the 2008 amendment of the Indian Constitution states that there shall be a Supreme Court of India consisting of a Chief Justice of India and no. of judges as prescribed by Parliament.
  • Initially, the prescribed no. of judges was 7 excluding CJI. Now the no. is 34 judges including the CJI.
  • The closest mention is in Article 126. It deals with the appointment of an acting CJI.
Convention for appointment of the CJI
  • When the incumbent CJI retires (all Supreme Court judges retire at the age of 65), the senior-most judge in the SC becomes the CJI.
  • Seniority is not defined by age but by the number of years an individual has served as a judge of the apex court.

Read moreAppointment of CJI

Salary and Allowance of CJI and other Judges:
  • The Constitution of India given the power to the Parliament to decide the salaries, allowances, privileges, leave and pension of the judges. This includes both the Judges and the CJI of the Supreme Court.
  • However, his terms and conditions cannot alter to their disadvantage after they get appointed. It can be altered only when there is a financial emergency.
Administrative Powers of CJI:
  • The Chief Justice of India is the “first among equals” in the Supreme Court. He has the “exclusive prerogative” to allocate cases and constitute Benches. Hence, he is known as the master of the roster.
  • The Chief Justice decides the number of judges that will hear a case. Thus, he can influence the judgement by simply choosing judges favouring a particular outcome.
    • The CJI can exercise such administrative powers without collegium consensus. Further, he/she cannot state any reasons for such change.
  • Appointment of court officials and general and miscellaneous matters relating to the supervision and functioning of the Supreme Court.

Click Here to Read about Procedure for Removal of CJI and other Judges

 Source: The Hindu

Posted in Daily Factly articles, Factly: Polity and Nation, PUBLICTagged

Significance of Circuit Benches

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Synopsis: Virtual hearings started during the pandemic provided much relief. However, now focus should be on other measures like the establishment of circuit benches.

Background:
  • The pandemic saw the initiation of virtual proceedings in the Supreme Court. It was because the physical hearing was not possible due to COVID-19 restrictions.
  • This new method ensured fair and equal access to justice for many people. Now, many are demanding a continuation of this novel practice even in a post-pandemic scenario. 
  • However, it will not be sufficient. For increasing accessibility more circuit benches
What are circuit benches?
  • A dedicated place in Delhi is provided for the functioning of the Supreme Court (SC).
  • The Constitutional makers wanted the Court to have a specified place of sitting so that litigants can approach it.
  • They were also aware of the geographical constraints of India. Hence, they empowered the Chief Justice to establish circuit benches. 
    • These are temporary courts that hold proceedings for a few selected months in a year.
  • Nonetheless, no circuit benches have been established despite rising Pendencies.
The adverse impact of Fixed Location:
  • Denial of Justice: Many litigants are discouraged to travel to Delhi from far away locations like south or northeast India.
  • Further, as per a report of Centre for Policy Research, a disproportionately high number of cases filed in the Supreme Court originates in High Courts closer to Delhi.
    • Almost 18% of all cases in the Supreme Court originate from Punjab and Haryana. They have less than 5% of the total population share.
    • But States like West Bengal, Bihar, and Andhra Pradesh which make about 20% population, contributed to less than 10% of cases.
  • Appearance in SC has become an exclusive domain of limited lawyers located around Delhi. This also puts an additional financial burden on litigants as they can’t hire their local lawyers.

However, these constraints were effectively tackled by Virtual proceedings during the pandemic that resulted in more equitable access to justice.

Way Forward:
  • The Chief Justice must establish circuit benches as recommended by multiple law commissions and parliamentary committees. 
  • For the time being, SC must continue with the virtual proceedings along with physical proceedings in order to prevent denial of justice. The court can also continue it as a matter of just and equitable policy if not as a matter of right.

THE HINDU


Electrical Engineering Syllabus

Posted in 9 PM Daily Articles, PUBLICTagged

Lack of Transparency in the Supreme Court’s In-house Inquiry Procedure

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Synopsis: In-house inquiry procedure needs to be made transparent

The issue:
  • Recently, the Supreme Court dismissed the complaint from Andhra Pradesh CM against Justice N.V. Ramana, on the basis of in-house inquiry.
  • But the court declined to disclose the findings of the in-house inquiry. This has raised issues of transparency in the court’s process.
  • According to a 2003 judgment of the supreme court, In-house inquiry is meant only for “the information and satisfaction” of the CJI, and not for the public.
Background
  • CM of Andhra complained to CJI that Justice Ramana (the senior most judge of the Supreme Court) has been influencing the Andhra Pradesh High Court against his Government.
  • He also accused that the family members of Justice Ramana were involved in Amaravati land scam. The prior knowledge that Amaravati was to be declared the State’s capital was used for speculative buying of land in Amaravati.
Why the confidentiality procedure needs to be changed?
  • Firstly, it leads to opaqueness and arbitrariness in the court’s functioning. For example, the evidence used to dismiss the complaint is unknown.
  • Secondly, dismissal of the complaint means that a serving CM has levelled false charges against a senior Supreme Court judge. This will invite contempt of the court if the committee found no merit in the allegations. So, at least the complainant should get to know the fairness of the procedure.

SC must remove the confidentiality rule to demonstrate that justice was both done and was seen to be done.

Source: The Hindu

Posted in 9 PM Daily Articles, PUBLICTagged

Pendency of Cases and Rising Vacancies in the Judiciary – Explained, Pointwise

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Introduction

Recently the Supreme Court asked the reason from the government for delaying the process of appointment of judges. The SC also highlighted that the government has not cleared the 55 recommendations made by the Collegium for judicial appointments to High Courts. 

The total sanctioned strength in the 25 High Courts is 1,080. However, the present working strength is 661 with 419 vacancies as of March 1,2021. The SC highlighted this as one of the reasons for the pendency of cases in the Judiciary. The pendency of cases in the Judiciary is a long pending issue.

Although the credibility of the judiciary is not a cause of concern, it is the pendency that is creating a major issue. It can have grave consequences such as denial of justice, prison overload etc. Thereby it demands urgent attention. 

Status of pendency of cases in the judiciary

  • From 2006-2019, an overall increase of 22% (64 lakh cases) was seen in the pendency of cases across all courts.
  • As of August 2019, there are over 3.5 crore cases pending across the Supreme Court, the High Courts, and the subordinate courts. Amongst this, 87.3% of cases are in subordinate courts, 12.5% in High Courts and 0.2% in Supreme Court.
Few Important articles
  • Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President. He/she should consult such a number of the Judges of the Supreme Court and of the High Courts in the States as he/she may deem necessary for the purpose.
  • Article 224A – The Chief Justice of a High Court can request a former high court judge to act as an ad hoc judge. He/she can do this with the previous consent of the President.
Causes for Pendency of cases
  1. Increase in the number of cases: An improvement in literacy levels, population growth and formulation of citizen-friendly tools like PIL have resulted in a huge influx of cases in courts. 
  2. Rising Vacancies: The courts are working below their sanctioned strength. As of 2017, High Courts have 403 vacancies out of sanctioned strength of 1,079 judges. But still, there are no filling of vacancies. Similarly, subordinate courts have 5,676 vacancies against a sanctioned strength of 22,704 judges. The delay in appointments is increasing vacancies.
  3. Rigid Procedural Requirements: A lot of paperwork needs to be done on every case which sometimes creates unnecessary delays. 
    • For instance, Vishnu Tiwari was recently acquitted of a false rape charge by Allahabad high court. His appeal was pending before the Allahabad High Court for 16 years. The reasons behind this were missing documents or documents in the wrong format for listing the case.
  4. Poor Conduct of Lawyers: They are sometimes found indulging in collusive corruption especially at subordinate levels in order to drag the case. Moreover, the lawyers also demand frequent adjournments for not valid reasons.
  5. Inefficiencies by Police Personnel: They are sometimes seen complacent in filing charge sheets and conducting speedy investigation which creates a delay in delivering timely judgement. 
  6. Law school focus on developing lawyers not focus on building future members of the Judiciary.
Impacts of Pendency of cases
  1. Firstly, the burden on Judges: Rising pendency creates an excess burden on judges. Judges have sometimes seen hearing more than 100 cases in a day. This reduces the average time devoted to a case on a particular day. 
  2. Secondly, overcrowding of Prisons: Pendency enhances the number of undertrials in the prisons which eventually leads to overcrowding. According to the NCRB data, In 2019 there were 4.78lakh prisoners. Out of which 69.05 % were undertrials.
  3. Thirdly, undermines Right to life: In Hussainara Khatoon v. Home Secretary, State of Bihar case, 1979 the SC held that the “right to a speedy trial” is a fundamental right implicit under Article 21. But pendency of cases is a clear violation of the Judgement itself. 
  4. Fourthly, harassment of people: The pendency causes harassment of the accused and victim. As they need to go through significant financial, physical and mental stress for years due to the pendency. For instance, in the recent example of  Vishnu Tiwari acquittal case, He spent 20 years in prison before this acquittal.
  5. Fifthly, undermines Judicial Credibility: The faith and trust of the common man in the judicial setup are also lost if he/she didn’t receive timely justice. It is perceived that judges are indulged in some kind of favouritism towards one of the parties and are deliberately delaying the process.
  6. Finally, unsatisfactory Disposal rate: The disposal rate(number of cases disposed of) has stayed between 55 -59% in the Supreme Court, 28% in the High Courts, and 40% in the subordinate courts. 
Suggestions to reduce Pendency of cases
  1. Firstly, the rise in vacancies can be duly addressed with timely appointments. This would require developing a consensus over a memorandum of procedure between the executive and judiciary.
    • It is an agreement between the judiciary and the government. It contains a set of guidelines for making appointments to the higher judiciary.
    • The memorandum of procedure should be based on four criteria
      1. Transparency in the Judicial appointments,
      2. Eligibility criteria for judicial appointments,
      3. A permanent secretariat to assist the collegium
      4. A mechanism for complaints against candidates.
  2. Secondly, the Supreme court has recommended that retired high court judges having domain expertise should be placed back as Ad Hoc judges. This will fast track the disposal of cases. 
  3. Thirdly, the slow disposal rate can be improved by augmenting the quality of judges. For this, the government can set up All India Judicial Services(AIJS).
    • It is a proposed cadre of judicial officers at the lower levels (below High Courts). They would be recruited through an open competitive national level exam conducted on the lines of the Civil Services Exam.
  4. Fourthly, an integrated digital system is required in the judiciary to streamline the process. This digital system will allow smooth interaction between various institutions through a digital platform. It will normalize the format and content of data across all the systems. 
  5. Fifthly, the media as the 4th pillar of democracy should do periodic and constructive reporting on the pendency of cases. This will have a dual benefit.
    1. Placing better accountability on judges
    2. Bringing the pendency to the public domain.
  6. And lastly, alternative Dispute Resolution mechanisms like Arbitration, Conciliation, Lok Adalats etc. should be promoted by judges. Further, legal services authorities, such as, NALSA, SALSA, DALSA and TALSA, can generate awareness.
Conclusion

The right to fair and speedy trial must be upheld in all circumstances as it is an important component of dignified life under Article 21 of the Indian Constitution. Further, the pendency of cases also depends on other reforms like Prison reforms, police reforms etc. The government has to ensure those reforms as well. In conclusion, we must remember that Justice Delayed is Justice Denied.

Posted in 7 PM, PUBLICTagged

Collegium System and Appointment of “Ad-Hoc judges” in High Courts

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What is the News?

The Supreme Court has asked the reason from the government for delaying the process of appointment of judges. As the government has not cleared the 55 recommendations made by the Collegium for judicial appointments to High Courts.

Vacancies in High Courts:

  • The total sanctioned strength in the 25 High Courts is 1,080. However, the present working strength is 661 with 419 vacancies as of March 1,2021.
  • The highest number of vacancies is in Patna High Court with 60% of the sanctioned judges vacant.
  • The least number of vacancies is in Meghalaya, Manipur, and Sikkim High Courts where there is no vacancy.

What is the collegium system through which judges get appointed?

  • Firstly, the Collegium makes decisions regarding appointments/elevation of judges to the Supreme Court, High Courts, and transfers of judges of the High Courts.
  • Secondly, the Collegium System has evolved through judgments of the Supreme Court and not by an Act of Parliament or by a provision of the Constitution.
  • Thirdly, the Chief Justice of India and the four senior-most judges of the Supreme Court head the Supreme Court Collegium.
  • Are Collegium recommendations binding? The Central Government can ask the Collegium to reconsider its recommendations only once. The recommendations are binding on the Central Government if the Collegium sends the names of the judges to the government for the second time.

Appointment of Ad-Hoc Judges:

  • Firstly, the Supreme Court suggests the appointment of retired judges as ad-hoc judges to deal with the pendency of cases in High Courts.
  • Secondly, the appointment of ad-hoc judges has been provided in the Constitution under Article 224A (appointment of retired Judges at sittings of High Courts).
  • Thirdly, under the Article, the Chief Justice of a High Court for any State can request a person to act as a judge of the High Court. The conditions are
    • For this, the prior consent of the president is required.
    • The person should have held the office of judge of that court or of any other High Court.
  • Fourthly, such a judge is entitled to allowances as determined by the President.
  • Lastly, he will also enjoy all the jurisdiction, powers and privileges of a judge of that high court. But, he will not otherwise be deemed to be a judge of that high court.

Source: The Hindu

Posted in Daily Factly articles, Factly: Polity and Nation, PUBLICTagged

Need for an Integrated Digital System in Indian Justice System

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Synopsis: Implementation of an integrated digital system for the criminal justice system will help in speedy justice.

Background

43 years old Vishnu Tiwari was recently found innocent by the Allahabad High Court. Vishnu was sentenced to life imprisonment for rape under the Indian Penal Code and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. He spent 20 years in prison before this decision.

  • His appeal before the Allahabad High Court was pending for 16 years. The reasons behind that were missing documents or documents in the wrong format for listing the case. Moreover, Vishnu’s lawyer had no interest in pursuing the case. So, the appeal stayed defective.
  • Shweta Singh Rana, a legal aid lawyer, was given the case in 2019, at the request of the jail authorities to the High Court. The High Court pointed out in its verdict that the State government did not consider converting his life sentence after 14 years.
  • A sincere lawyer and aware family members are essential to secure justice. However, these facilities have become luxuries that only prisoners with good economic conditions have access to.
How a poorly designed system is to be blamed in this case?

An effective justice system should be strong enough to ensure justice for everyone, irrespective of the economic condition of an individual.

  1. Firstly, there is an absence of an integrated digital platform for the criminal justice system. Moreover, present systems are designed poorly.
  2. Secondly, Digitisation has transformed the delivery of public services like passports. Whereas, the criminal justice system is still functioning with old procedures and paper-based processes.
    • The eCourts project has made significant progress in digitising the works of courts. Still, large gaps are present in the system.
  3. Thirdly, criminal cases involve coordination and communication between various institutions such as the police, prosecutors, legal services authorities, and forensic labs. These interactions are not smooth.
How will an integrated digital system help?

It allows the interaction between various institutions through a digital platform. This system normalizes the format and content of data across all the systems. Thereby, it helps in smooth communication and avoiding duplication of data.

  • Firstly, this system will notify the registry about the defects in a particular appeal, un-rectified for an extended period. The system would also inform the accused that his lawyer was not pursuing his case carefully.
  • Secondly, the legal service authority would be informed of the case and the lawyer could be replaced. The system should monitor the quality of representation of the lawyer.
  • Thirdly, after 14 years of imprisonment, the system would have notified the State government that the prisoner was eligible for re-sentencing of his sentence.
Conclusion

Priority must be given to speeding up the implementation of such a system. It will help in providing transparent, real-time access to criminal justice information to all stakeholders, including accused persons.

Source: click here

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Justice N.V. Ramana recommended as 48th CJI (Chief Justice of India)

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What is the News?

The current Chief Justice of India(CJI) has recommended Justice N.V. Ramana, the senior-most judge of the Supreme Court as the next CJI.

About Chief Justice of India(CJI):
  • Chief Justice of India is the chief judge of the Supreme Court of India. He/she is also the highest-ranking officer of the Indian judiciary.

Constitution on appointment of CJI:

Justice Ramana
Source : The Hindu
  • The Constitution of India does not have any specific provision for criteria and procedure for
  •  appointing the CJI.
  • Article 124(1) and the 2008 amendment of the Indian Constitution states that there shall be a Supreme Court of India consisting of a Chief Justice of India and no. of judges as prescribed by Parliament.
  • Initially, the prescribed no. of judges was 7 excluding CJI. Now the no. is 34 judges including the CJI.
  • The closest mention is in Article 126. It deals with the appointment of an acting CJI.
Convention for appointment of CJI
  • When the incumbent CJI retires (all Supreme Court judges retire at the age of 65), the senior-most judge in the SC becomes the CJI.
  • Seniority is not defined by age but by the number of years an individual has served as a judge of the apex court.

What is the procedure? The procedure to appoint the next CJI is laid out in the Memorandum of Procedure (MoP) between the government and the judiciary.

  • Firstly, the procedure is initiated by the Law Minister. He/she shall seek the recommendation of the outgoing CJI at the ‘appropriate time’(near to the date of retirement of the incumbent CJI).
  • Secondly, the CJI sends his recommendation to the Law Ministry. If there are any doubts, the CJI can consult the collegium as per article 124(2), regarding the fitness of an SC judge to be elevated to the post.
  • Thirdly, after receiving a recommendation from CJI, the law minister forwards it to the Prime Minister. The PM will then advise the same to the President.
  • Then lastly, President administers the oath of office to the new CJI.

Does the government get a say in the appointment of CJI?

  • Except for the law minister seeking the recommendation from the incumbent CJI and forwarding it to the Prime Minister, the government has no say in the appointment of the CJI.
  • However, the key difference between the appointment of the CJI and the other SC judges are,
    • In the appointment of CJI, the government cannot send the recommendation of the CJI (or the collegium) back for reconsideration.
    • But in the appointment of SC Judges, the government can do so. However, if the collegium reiterates those names then the government cannot object any further.

Are there any exceptions to the above-mentioned procedure?

  • This convention has been broken twice. In 1973, Justice A. N. Ray got appointed superseding 3 senior judges.
  • Also, in 1975 Justice Mirza Hameedullah Beg was appointed as the CJI superseding Justice Hans Raj Khanna.

Source: The Hindu

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Shortcomings of the ‘In House inquiry Procedure’

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Synopsis: The shortcomings of the ‘in house inquiry procedure’ of the Supreme Court has again come to the limelight. This time over the appointment of the future CJI itself. The upcoming CJI is facing serious allegations of misconduct, but there is no clarity of ‘In House inquiry Procedure’ in the concerned matter.

Background:
  1. The upcoming CJI will assume office as the 48th CJI (Chief Justice of India) on 24th April 2021. 
  2. This would make him master of the roster and give him the power to constitute benches in every case of the Supreme court. This includes the creation of inquiry committees for the In House inquiry Procedure also. 
  3. Thus allowing him to constitute a bench in his own case as well. This will give rise to the development of bias and undermine judicial impartiality.

What are the allegations? 

  1. The current CM of Andhra Pradesh has accused the upcoming CJI and one other Judge of abusing their judicial position. The CM also wrote a letter to the present CJI in this regard in October 2020.
  2. The allegation related to the creation of favourable benches to support the opposition party in Andhra Pradesh.
  3. In 2017 as well, a senior Supreme Court judge had addressed the upcoming CJI in the same issue. He also wrote a letter to the then CJI.
  4. Nonetheless, the issue has certainly highlighted the shortcomings of the In House inquiry procedure of the Supreme Court.
In House inquiry Procedure:
  • It was formulated by the higher judiciary in 1997. It helps in determining whether a judge has acted against accepted values of judicial life or not.
  • Under this, a compliant of misconduct may be filed by any person to CJI or the President of India.
  • The CJI will then examine the complaint, he/she may constitute a 3 member committee for inquiry or dispose of the complaint as per his discretion.
Shortcomings of the ‘In House inquiry Procedure’:
  1. There are no timelines for the completion of the inquiry. So the inquiry time is getting unnecessary delays.
  2. The procedure gives wide discretionary powers to CJI. This can breed favouritism in Judiciary. 
  3. Further, the procedure doesn’t forbid the CJI from being part of his/her own complaint of misconduct. Thereby undermining the principle of natural justice.
  4. There is no need to disclose the report of the inquiry into the public domain or to the complainant. This is against transparency in the Judiciary.
Suggestions to improve the In House inquiry procedure:
  1. As the issue revolves around high constitutional offices, the allegations deserve a thorough, expeditious and transparent inquiry.
  2. Post inquiry a remedial measure should be taken like:
    • Inducing the concerned judges to resign if he is guilty of misconduct. Further initiation of removal proceedings can also be started if judges don’t honour the resignation request.
  3. Citizens should be informed regarding the inquiry committees outcomes. This would strengthen trust in the functioning of the judiciary. 

The Bar Council of India has failed to demand greater transparency in the inquiry process. Now, the masses are the last hope to reform the self-serving and non-transparent judicial setup.

Source: The Hindu

Posted in 9 PM Daily Articles, PUBLICTagged

Judiciary’s inconsistency in dealing with cases of Personal liberty

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Synopsis: The recent rulings of the judiciary have defended the personal liberty of citizens. However, there are many instances where the judiciary failed to uphold liberty.

What are the recent rulings?

The following rulings highlight the role of judiciary as the first line of defence against the deprivation of the liberty of citizens.

  1. First, in ‘Priya Ramani case’ the Delhi high court acquitted her against the charges of criminal defamation. Above all, the court made the following significant directives.
      • One, a woman’s right to dignity supersedes the right to reputation.
      • Two, survivors of sexual harassment are free to place their grievances at any point in time after the incident. They are free to choose any platform or time as per their comfort.
  2. Second, in Disha Ravi’s‘ tool kit conspiracy case’ the high court has granted anticipatory bail to Disha Ravi. It further observed that in a democracy, the right to dissent is a fundamental right.
  3. Third, the judiciary in many earlier judgments has acted against the arbitrary use of Sedition laws. It has stated that free speech can be criminalized only when it is resulting in Public disorder. For instance,
      • In Arnab Manoranjan Goswami vs State of Maharashtra, the Court warned against the use of the criminal law as “a ruse for targeted harassment”.

What are the views of critics of the Judiciary?

Despite the above rulings, there are many instances where the Judiciary failed to uphold the liberty of individuals.

  1. First, in Tandav case the court has denied anticipatory bail to Ms. Purohit, (head of Amazon Prime Video’s India Originals.)
    • Further, the high court allowed the interrogation in custody. It was for running a show (Tandav) that was “bound to hurt the sentiments of the majority community”.
    • In doing so, the court upheld that religious beliefs are more important than free speech.
  2. Second, the court has shown unequal attitude towards ‘haves and have-nots’. For example, in Arnab Goswami case, the court granted quick bail by stating that deprivation of liberty even for a single day is one day too many.
    • However, it has done nothing to protect the life and dignity of thousands of Under trial prisoners. They continue to suffer in jail for many years. Some have even served half of their jail sentences without conviction.
  3. Third, the supreme court the guardian of people’s rights failed to quash unconstitutional laws. Rather, It allowed the continuance of these laws irrespective of their poor record in protecting personal liberty. For example, Sedition, Defamation laws etc. (Justification for this statement given below)
    1. One, criminal defamation has imposed a chilling effect on  legitimate speech. Every democratic nation of the world has decriminalized defamation. But in India, it remains a tool to harass dissenters.
    2. Two, Sedition laws are colonial remnants. The offence of sedition continues to be weaponized to restrict dissent against government. For example, journalists involved in Hathras rape case and Bhima Koregaon case booked under sedition.
    3. Three, India’s blasphemy laws, are also remnants of colonialism. Section 153A, deals with speech that seeks to promote enmity between different communities. Section 295A criminalizes speech that outrages religious feelings. Even these laws are used to enforce majoritarian views and very little for dealing genuine cases of hate speech. For example, Tandav case.

Judicial discretion will lead to arbitrary outcomes. When this uncertainty is coupled with the prevailing distrust in the values of personal liberty, of free thought and expression, it leads to denial of rule of law.

 

National security laws in India

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NGT and associated challenges

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Synopsis- The National Green Tribunal(NGT) instead of protecting the environment is facing trouble due to internal issues within the NGT.

Introduction

The National Green Tribunal(NGT) is a dedicated tribunal to deal with matters relating to the environment. The NGT website even mentions that the tribunal has cleared 90% of the cases. But a close look will reveal the tribunal’s mandate to protect the environment is not yet fulfilled.

About the National Green Tribunal (NGT):

  1. National Green Tribunal (NGT) is a quasi-judicial body established on October 18, 2010. It was established under the National Green Tribunal Act 2010 to handle environment-related disputes.
  2. India is the third country following Australia and New Zealand to have such a system.
  3. The Mandate of NGT is to dispose of the cases related to the environment in an effective and efficient manner. The NGT handles cases related to,
    • Environmental protection
    • Environmental clearances for projects by the government are covered under the jurisdiction of NGT.
    • Conservation of forests and other natural resources.
    • Enforcement of any legal right relating to the environment.
    • Relief and compensation for damages to persons and properties.

Challenges with the working of NGT

  1. Since the inception of the NGT Act, the tribunal never functioned in its full capacity. According to the NGT Act, the tribunal should have 10 members in the Judicial and 10 members in the Expert capacity. At present, the NGT is functioning with three judicial and three expert members only. This is much less than the official requirement under the NGT Act.
  2. It has failed to achieve the Right to a healthy environment as a part of the Right to Life under Article 21.
  3. NGT has invoked the deadline associated with the technical clause and dismissed 11 petitions last year alone. This shows the inability of NGT to solve the cases in a time-bound manner.
  4. Lack of expertise in the functioning of Tribunal. This is evident that many decisions of NGT have been challenged and overruled in the Supreme Court. For Instance
    • The Supreme Court questioned the expertise of NGT in the case of the Subansiri Hydropower Project in Arunachal Pradesh 2019. Further, the court also overruled the ban imposed by NGT on that project.
  5. The tribunal also failed to carry out the merits-based review and discharge of adjudicatory function. For example, In Mopa Airport Case, the apex court held that the NGT lacks merits-based review on its judgements.
  6. Limited Regional Benches: The NGT has located only in big cities. But, environmental exploitation is majorly taking place in the tribal areas of dense forest. There is a limited opportunity for these people to come forward and file a case in NGT.

Way Forward

  • The Government needs to reform the provisions of the NGT Act to include more number of judicial and expert officials.
  • Apart from that, the government also needs to ensure the filling of Vacancies in a time-bound manner. This will ensure the proper functioning of NGT.
Posted in 9 PM Daily Articles, PUBLICTagged

The Collegium System – Explained Pointwise

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Introduction

The Collegium System was introduced in response to the executive interference in judicial appointments. However, this system has failed to protect judicial appointments from executive interference. It is due to the reasons like Post-retirement appointments of judges.

At present, the collegium comprises of CJI (Chief Justice of India) and 4 senior-most judges of the Supreme Court. Despite various criticisms and attempts to reform the appointments and transfers process, the collegium system still persists and remains stronger.

Current Scenario

  • The appointments of the judges are formally made by the President of India on the recommendation of the collegium. These proposals are processed through the Ministry of Law and Justice.
  • The system was recently in the news as two judges of collegium expressed caution to CJI. These two judges were against the proposed elevation of 22 lawyers as High Court judges in Bombay. They felt that the proposed people were lacking in integrity and shouldn’t be appointed. 
  • In the past also the CJI had ignored the veto of senior Judges and appointed a judge. Later on, that judge went ahead and delivered an absurd verdict on the POCSO (Protection of Children from Sexual Offences) Act. (As per which skin-to-skin contact is necessary for convicting an individual for sexual harassment under the act.)

About Collegium System

  • It is the system by which the judges are appointed and transferred only by the judges. 
  • This system is not formed by an Act of Parliament or by a Constitutional provision. Instead, it is the system evolved by the judgments of the Supreme Court.
  • The SC collegium is headed by the CJI and comprises of four other senior-most judges of the court.
  • An HC collegium is led by its Chief Justice of High Court and four other senior-most judges of that court.
  • The names recommended for appointment by a High Court collegium reach the government only after approval by the CJI and the Supreme Court collegium. 
  • The government can return the recommended Judge for reconsideration by Collegium.
  • If the collegium reiterates its recommendation then the government is mandated to appoint a person.
  • The system was introduced for strengthening and improving the appointment process.

Evolution of Collegium System

  1. Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President. He/she should consult such a number of the Judges of the Supreme Court and of the High Courts in the States as he/she may deem necessary for the purpose.
  2. Article 217 of the Indian Constitution states that the Judge of a High Court shall be appointed by the President in consultation with the Chief Justice of India and the Governor of the State. Further, the Chief Justice of the High Court should also be consulted except in case of his/her own appointment.
  3. In First Judges Case (1981) – The court said consultation under Article 124 doesn’t mean concurrence (unanimity). Based on this judgement, the President is not bound by CJI’s advice.
  4. In Second Judges Case (1993) – The court overruled its previous decision and said CJI’s advice is binding. Further CJI is required to formulate its advice based on a collegium of judges consisting of CJI and two senior-most SC judges.
  5. In Third Judges Case (1998) – The court expanded the collegium to a five-member body to include the CJI and the four senior-most judges of the court after the CJI.
  6. In the Fourth Judges Case (2015)– The SC upheld the primacy of the collegium. Further, the court strikes down the NJAC (National Judicial Appointments Commission) Act as unconstitutional. The Court held that the Act gave the government significant powers to appoint Judges. The Court held the Act encroached upon the judiciary’s independence and undermined the basic structure.
    • The NJAC comprised of 3 judges of SC, a central law minister, and 2 civil society experts.
    • A person would not be recommended by NJAC if any 2 of its members did not accept such recommendation, making the appointment process more broad-based.   

Need for Collegium System 

  1. It separates the judiciary from the influence of the executive and legislative. This ensures impartial and independent functioning. So, the collegium system strengthens the principle of separation of powers (no organ of State should intervene in the functioning of another).
  2. The State is the main litigant in Indian Courts. About 46% of total cases pending in India pertains to the government. If the power to transfer the judges is given to the executive, then the fear of transfer would impede justice delivery. 
  3. The executive organ is not a specialist or does not have the knowledge regarding the requirements of the Judge. Therefore, it is better if the collegium system appoints Judges.
  4. The political vulnerability in India- The government handling the transfers and appointments is prone to nepotism. For example, there are ample amount of evidences where the civil servants were transferred for political gains. This cannot be feasible with the present collegium system. Further, the collegium system provides stability to the judges.

Criticisms of the Collegium System

  1. It gives enormous power to judges that can be easily misused. The collegium system has made India, the only country where judges appoint judges.
  2. The selection of judges by collegium is undemocratic. Since judges are not accountable to the people or representative of peoples i.e. executive or legislative.
  3. There is no official procedure for selection or any written manual for functioning. This creates an ambiguity in the collegium’s functioning.
  4. Sons and nephews of previous judges or senior lawyers tend to be popular choices for judicial roles. Thus, it encourages mediocrity in the judiciary by excluding talented ones and breeds nepotism.
  5. The delays over the appointment are still persistent. The Supreme Court last appointed a judge in September 2019, and it currently has four vacancies, which is expected to be increased further this year. 
  6. The procedure lacks uniformity- Sometimes a judge of HC is elevated as chief justice of the same HC while in other cases he/she is made chief justice of some other high court.
  7. Proactive decisions on improving transparency were rolled back to secrecy. This includes the practice of disclosing the reasons while announcing the collegium’s decision. 

Suggestions

  1. The Centre needs to act on collegium’s decision within a specific time frame so that delays are minimized. Many names for appointments to the High Courts of Bombay and Allahabad are pending before the government since May 2020.
  2. Both the Centre and Judiciary must stop the blame game and focus collectively on reforming the appointment process. A consensus needs to be developed on a memorandum of procedure. This procedure has to include few important provisions such as,
    • Involving an agreement between the judiciary and the government which contains a set of guidelines for making appointments to the higher judiciary.
    • It should be based on four criteria, such as transparency, eligibility criteria for judicial appointments, a permanent secretariat to assist the collegium, and a mechanism for complaints against candidates.
  3. At present, the collegium only puts out a public statement on who has been recommended. But it does not disclose who has been dropped out and for what reason. So, the collegium system must revert to an earlier practice of providing rational reasons for its decision.
  4. Further, a written manual should be released by the Supreme Court. The manual should be followed in letter and spirit during appointments and transfers.
  5. The Supreme Court should also release the records of all collegium’s meetings in the public domain in order to ensure transparency and rule-based process. 
  6. Apart from reforming the collegium system, the quality of judges can also be improved through the implementation of All India Judicial Services (AIJS).

Conclusion

The system of appointments should be improved expeditiously as High Courts across the country are short of over 400 judges. A future rise in pendency of cases can be tackled only when the judiciary and executive are willing to negotiate with a citizen-centric spirit. For that, reforming the collegium system is a good step in right direction. 

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The case of Four Capitals or the Supreme Court bench in South India

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Synopsis: The proposal of four capitals may not be feasible in India. However, a Supreme Court Bench in south India can be created.

Introduction 

West Bengal’s CM Mamata Banerjee suggested that there should be four capitals of India. She is of the opinion that Parliament sessions should be held in each of the four capitals in rotation. However, the proposal is not feasible.

Why is the plan not feasible?

Each one of the Four Capitals will require parliament buildings, accommodation for all the MPs, and adjunct staff. Moreover, there will be other cost involved with it:

  1. Firstly, if constructed, these residential accommodations would be vacant for a year or 2. There would be an added cost of traveling for all the MPs and their staff.
  2. Secondly, It will overburden the state police. All the MPs and their vacant accommodations will require security round the clock.
  3. Thirdly, depending on the risk factor, enhanced security will have to be necessarily provided to a fair number of MPs.
  4. Fourthly, the cost to the government exchequer to have capitals in three other States will be huge. 
    • For instance, the Tamil Nadu Chief Minister proposed to shift the State capital to Tiruchirappalli in central Tamil Nadu in the 1980s. It was shelved due to the huge burden it would impose on the State exchequer. 

The case for SC bench in Southern state

The Bar Councils of the five southern States called for a Supreme Court bench in south India in 2021. This demand needs consideration.

  1. Firstly, there is a long-distance between the southern states and Delhi. Many people cannot afford to travel all the way to New Delhi to engage lawyers and plead their cases.
  2. Secondly, The excessive fee of the Supreme Court lawyers in New Delhi is another constraint.
  3. Third, Attorney General K.K. Venugopal suggested that four benches of the Court of Appeal with 15 judges each should be created across the country. It will reduce the burden of the Supreme Court.
  4. Fourth, Moreover, Judges would be able to go through each case thoroughly. Thus, it will ensure the delivery of a well-thought-out verdict. However, implementing this would require an amendment to the Constitution.

The way forward 

This arrangement will allow the Supreme Court to deal with constitutional issues. With cases rising in various courts, a practical solution needs to be worked out. Easy accessibility to justice for every citizen is a right that cannot be countered.

Posted in 9 PM Daily Articles, PUBLICTagged ,

No evidence of any gender or religious bias in the district courts, finds study

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What is the News?

A study by the Development Data Lab has found no evidence of any systemic gender or religious bias in the district and subordinate courts across India.

The lab works with governments, firms, and civil society organizations. It generates policy-relevant knowledge using data.

About the study:

  • Data used: The study looked at 2010 to 2018 records of all district and subordinate courts available on the government eCourt platform. This is the first such study of judicial data in India.
  • Classification: The study classified judges and defendants according to gender and religion (Muslim and non-Muslim).  It was to examine in-group bias or whether existing structural inequalities led to worse judicial outcomes for women and Muslims.

Key Findings:

Women and Muslims Judges in Lower Courts:

  • Women represent 48% of our population, but they constitute only 28% of district court judges.
  • Similarly, Muslims represent 14% of India’s population but only 7% of lower court judges.

Outcomes of Cases:

  • Male defendants did not get better outcomes in conviction or acquittal when their cases were assigned to men judges. Similarly, women defendants did not get better outcomes before women judges.
  • Equally, the judicial outcomes of Muslims were virtually identical whether their cases were assigned to Muslim or to non-Muslim judges.
  • However, the lack of bias in Indian lower courts in cases involving Muslims and women does not rule out judicial bias in its entirety.

Drawbacks of the study:

  • The study examined bias by religion. But leaves outcaste which is a crucial variable in India.
  • The study examines systemic bias during conviction and acquittal. But it leaves out significant markers of the judicial processes such as framing of charges, granting bail, and determining the quantum of punishment.

Other key Studies:

 A study by Delhi-based Project 39A:

  • In 2016, there were 385 death row convicts in India. Among them, two-thirds belonged to the backward classes or were religious minorities. All the 12 women death row convicts at that time belonged to backward classes or castes or were religious minorities.

Study by National Crime Records Bureau(NCRB)

  • In 2019, Muslims and Dalits constitute the biggest set of undertrials in the country, disproportionate to their share in the population.
  • The share of Scheduled Castes among undertrials stood at 21% while their share in the population is at 16.6%(2011 Census).
  • Scheduled Tribes and Muslims make up for 10.5% and 18.7% of all undertrials respectively. While their respective share in population is 8.6% and 14.2%.

Source: Indian Express

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https://blog.forumias.com/what-is-one-district-one-product-scheme/
https://blog.forumias.com/niti-aayog-study-to-track-economic-impact-of-green-verdicts/
Posted in Daily Factly articles, daily news, Daily News Updates, Factly: Polity and Nation, PUBLICTagged

 Are courts encroaching on the powers of the executive?  

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Synopsis: The instances of courts intervening in the executive matters without providing comprehensive legal reasoning are increasing. SC’s recent decision to put stay on farm laws has been analysed in this context. 

Introduction  

The Supreme Court is trying to make a political settlement between farmers and the government. It has put a stay on farm law and made a committee for mediation. But the court has not provided any legal or constitutional reasons for that. 

What are the contradictions in this decision of SC? 

The following reasons suggests that the decision of SC to stay farm laws was a clear encroachment into the domain of executive. 

Firstly, the petition was filed on the argument that only states are eligible to enact farm laws under Seventh Schedule to the Constitution. SC should have analysed the validity of such basis.  

Secondly, the court is giving the example of the protests during Maratha reservation case in which it had issued a stay on the law in question. But in that case the stay was given on constitutional grounds 

Third, the reason given by the court for its decision was not a legal reason. It provided hat this step will ease the hurt feelings of farmers and it will become easier to bring them on the negotiation table.  

Fourth, In the recent years, SC has been hesitant to take up constitutional challenges to similarly politically controversial moves. This decision by SC also falls into the same category. For Example; the cases of Article 370, the Citizenship (Amendment) Act, reservation quotas for economically weaker sections, electoral bonds, and the ‘love jihad’ laws. 

Fifth, Earlier SC Held protests as completely legal and part of the exercise of citizens’ rights under Article 19 of the Constitution.  But in a related case told that the question of whether the tractor protests should be allowed or not is a ‘law and order’ question and the decision will be taken by Police.  

SC is under question of the critics these days, but the positive roles played by it cannot be ignored due to that. In the Navtej Johar case (Navtej Singh Johar v. Union of India) court acted in a counter-majoritarian manner and decriminalised Homosexuality.  

Posted in 9 PM Daily ArticlesTagged ,

Justice delivery system

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Context: Inadequacies in the justice delivery system extends beyond the Supreme Court.

What are the various issues faced by the judiciary?

  • Spending on judiciary: It is equated with a call for increasing the salaries of judges and providing better court infrastructure. Such perceptions are unfortunate.
  • Issues under The Legal Services Authority Act of 1987: Under this law, all women, irrespective of their financial status, are entitled to free legal aid.
    • Free legal aid: Scheduled Castes and Scheduled Tribes and children too are entitled to free legal aid. This means that a significant proportion of the population falls under a free legal aid regime.
    • Lack of well-trained individuals: There has been little effort on the part of successive governments to provide a task force of carefully selected, well-trained and reasonably paid advocates to provide these services.
    • The system of legal aid in the U.K. identifies and funds several independent solicitor offices to provide such services.
  • The judge-population ratio: It provides one of the most important yardsticks to measure the health of the legal system.
    • The U.S. has about 100 judges per million population. Canada has about 75 and the U.K. has about 50.
    • India has only 19 judges per million population. Of these, at any given point, at least one-fourth is always vacant.
    • Hardly any attention is focused on this gaping inadequacy in lower courts which is where the common man first comes into contact with the justice delivery system.
    • In All India Judges Association v. Union of India (2001), the Supreme Court had directed the Government of India to increase the judge-population ratio to at least 50 per million population within five years from the date of the judgment. This has not been implemented.
  • Other issues:
    • Increasing tribunalisation of the justice delivery process;
    • the extortionate court fees payable to access justice in civil suits in some States; and
    • the poor integration of technology into the system are some issues that readily come to mind.

What can be done?

  • Access to justice: Though ‘access to justice’ has not been specifically spelt out as a fundamental right in the Constitution, it has always been treated as such by Indian courts.
    • In Anita Kushwaha v. Pushpa Sadan (2016), the Supreme Court held clearly that if “life” implies not only life in the physical sense but a bundle of rights that make life worth living, there is no justice or other basis for holding that denial of “access to justice” will not affect the quality of human life.
    • Further, the court pointed out important components of access to justice:
      • Existence of adjudicatory mechanisms.
      • Conveniently accessible in terms of distance and
      • The process of adjudication must be speedy and affordable to the disputants.
    • National policy: The executive, judiciary and the legislature are yet to draw out a national policy and road map for clearing backlogs and making these concepts real.
Posted in 9 PM Daily Articles, daily news, Daily News Updates, PUBLICTagged

Court complexes across country connected under E-Courts Project

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Source: Click here

News: As many as 2927 complexes across India have been connected so far by a high-speed Wide Area Network(WAN) under e-Courts Project.

What is e-court project?

It is an Integrated Mission Mode Project under implementation since 2007 as part of National e-Governance Plan.

  • The project is based on the National Policy and Action Plan for Implementation of Information and Communication Technology in Judiciary-2005.
  • Aim: To provide designated services to litigants, lawyers and the judiciary by universal computerisation of district and subordinate courts in the country by leveraging Information and Communication Technology (ICT) for improved justice delivery.
  • Implementation: The project is monitored and funded by the Ministry of Law and Justice.
Posted in PUBLICTagged , ,

Gender deficit in Indian Judicial system

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Context: Attorney-general KK Venugopal has asked the Supreme court to fix the gender deficit in the Indian judicial system.

Facts on number of Women in Indian judicial system.

  • Women comprise only 7.2 per cent of all the judges in the SC and the high courts.
  • There were only eight women judges till now in supreme court and there has never been a woman Chief Justice of India.

Why the Indian judicial system is alleged gender insensitive?

  • The Madhya Pradesh High Court had asked a man accused of “outraging the modesty of a woman” to visit the home of the victim and ask her to tie a rakhi.
  • Nine women lawyers had moved the SC against the bail order.
  • Courts are also known to nudge alleged sexual offenders and victims towards “compromise weddings”.
  • In one instance, SC Chief Justice presided over a case in which he had been accused of sexual harassment at workplace. The SC, which has empowered judgments on gender rights failed to institute an impartial mechanism to deal with the allegations.
  • Similar judgments and conduct of court get tangled in patriarchal notions of honour instead of holding up constitutional rights.

What needs to be done?

  • Need for gender sensitisation of judges and lawyers to avoid judgments that exuberates patriarchy.
  • Greater representation of women across all levels of judiciary is urgently needed for dismantling patriarchal attitudes.

The judiciary should consider the suggestions of the attorney-general and apprise itself of the gender skew in its workings and take urgent steps to bridge the gap.

Posted in 9 PM Daily Articles, daily news, Daily News UpdatesTagged ,

Supreme Court on Protecting Rights of People

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News: The Supreme Court has pronounced its reasons for granting interim bail to Republic TV editor-in-chief Arnab Goswami in connection with the abetment of suicide case against him.

Facts:

Key Takeaways from the Judgement:

  • Protect Personal Liberty: The Supreme Court called on judges to protect personal liberty and the right of ordinary people to bail saying liberty is not a gift for the few and deprivation of liberty even for a single day is one day too many.
  • Importance of Bail: The apex court invoked the case of State of Rajasthan, Jaipur v Balchand and referred to Justice Krishna Iyer’s statement that “basic rule of our criminal justice system is bail,not jail”.
  • Courts as first line of Defence: The Courts must ensure that they continue to remain the first line of defence when citizens liberty is deprived.But in reality, undertrials remained behind bars while their bail applications were lobbed from one rung of courts to another.
  • Pending Bail Pleas: The court highlighted that 91,568 bail pleas were pending in High Courts, while 1.96 lakh bail applications continued to wait for a hearing in the district courts.Hence, it urged the judges in charge of these courts to utilise tools at their disposal to address this pendency.
  • Importance of District Courts: The district courts are only subordinate in hierarchy.It is less to none when it comes to saving the lives of citizens or doing justice for them.Hence, the district judiciary must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector.

15th Finance commission: Reforming financial governance of India’s municipalities

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Protecting Article 32

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Context: 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.

What does article 32 says?

  • The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
  • CJI M Hidayatullah in Tilokchand (1970) said that what Article 32 does is to keep open “the doors of this court” and requires the state not to put any hindrance to a person seeking to approach the Court.

What are exceptions to the article 32?

  • The Court regards Article 32 as a judicial power subject to the fundamental principles of administration of justice.
  • It does not mean that the Court must ignore and trample under foot all laws of procedure, evidence, limitation, res judicata and the like.
  • Justice MP Thakkar and Kanubhai Brahmbhatt observed that time for imposing self-discipline has already come, even if it involves shedding of some amount of institutional ego and to inspire confidence in the litigants that justice will be meted out to them.
  • Even if there is a constitutional right to remedies it remains subject to the discipline of judicial power and process.
  • Article 33 clearly says that the right will not extend to the members of armed forces.
  • Justice Patnaik maintains that the article 33 and 34 will not eclipse the right of a person detained without the authority of law to move for habeas corpus.

How the new facets of article 32 evolved?

  • In 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.
  • The Court has also upheld (in 1997) the 50th amendment enlarging the scope of this article against a challenge of the basic structure of the Constitution.

What are the issues have been raised?

  • CJI or the Court as a whole should not suffer from epistemic collapse so as to receive sharp reminders and rebukes from citizen commentators.
  • Article 32 does not merely confer wide powers on the Court but also the judicial duty to provide constitutional remedies.
  • Lawyers and justices know what distinguishes Article 32 from Article 226 is the very dimension of it. HCs have the discretion to act or not to.
  • Article 32 is not absolute. The Supreme Court decides on what “appropriate proceedings” should be for it to be so moved.
  • Discrimination in bail where one case is fast tracked whereas others are consigned to slow moving judicial action.
  • Scandalous judicial delays and a bold resolution of “who watches the watchman” syndrome demand urgent response.

Article 32 makes the apex court into a “people’s court” and in future we should be able to conclude that the Court did not deliberately dealt deathblows to the “soul” of the Constitution.

 

Fundamental Rights

Posted in 9 PM Daily Articles, CURRENT AFFAIRS, daily news, Daily News UpdatesTagged ,

Contribution and Criticism of Supreme Court

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Context- Criticism is the hallmark of a prosperous democracy, but unfounded and unrestrained criticism is harmful rather than contributive.

Why judiciary is the strongest pillar on which the edifice of Indian democracy stands?

  1. India ranks in the top one-third of nations in efficiency of the legal framework to challenge regulations and in judicial independence.
  2. At the cost of being criticized for over-interference, the courts have strained to protect the life, liberty and the quality of life of citizens.
  3. India’s overburdened judiciary has been epitome of a free and independent judiciary worldwide.
  • On the other hand, US Supreme Court only accepts 100-150 of the more than 7,000 cases it is asked to review annually. In 2016-2017, only 92 cases were heard by the UK SC.

How Indian judiciary system is different from Poland, Hungary and Turkey?

  1. In Poland– The legislative proposal aimed to ban judges from obeying the orders from their own Supreme Court making them liable for prosecution.
  2. In Turkey– Thousands of Turkey’s judges and prosecutors have been sacked or jailed as Erdogan’s government wields the judiciary against its opponents.
  • They have been replaced by loyal and inexperienced newcomers, some in their 20s, plunging the courts into crisis.
  • By a new law, most of the 711 judges of the two highest courts will also be removed.
  1. In Hungary – The Hungarian parliament is planning to establish a government-influenced judiciary system, apart from the ordinary courts, to establish direct political control over the judiciary.

Therefore, such a comparison is unjustified and unfounded to the Indian scenario.

Examples of Supreme Court landmark decision-

  • SC ordered floor test within 24 hours in Maharashtra that led to the resignation of Devendra Fadnavis as chief minister.
  • Defending LGBTQ and transgender rights.
  • SC rules in favour of permanent commission to women officers and guaranteeing them the same terms of employment as men.
  • Upheld the supremacy of the RTI Act over the Official Secrets Act.
  • SC brought India’s most polarising case to a peaceful close through its Ayodhya judgment.

Way forward-

  • Judicial barbarism is an extremely unjust and unfair description of the conduct of the Supreme Court.
  • Constructive criticism – People should try and strengthen institutions with balanced and constructive critique and not slowly nibble at their foundation by constant badgering and berating.

About Quadrilateral Security Dialogue (Quad) 

Posted in 9 PM Daily Articles, CURRENT AFFAIRS, daily news, Daily News UpdatesTagged

Judiciary is not slipping into ‘barbarism

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Context: Recently questions have been raised on functioning of judiciary that it is slipping into “judicial barbarism”.

What are the recent charges made against the judiciary?

elgar parishad case

  • Electoral bonds case: The court has refused to do timely hearings of cases that go to the heart of the institutional integrity of a democracy.
  • Elgar Parishad case: The Supreme Court has been blamed for denying bail to Sudha Bharadwaj and Anand Teltumbde, who has been detained in the Bhima Koregaon case that is being probed by the National Investigation Agency.
  • Promoting Love Jihad: judiciary was blamed in legitimising this newest assault on liberty.
  • Arnab Goswami case: Where the Chief Justice of India was blamed for quick hearing of Arnab’s case when other significant constitutional cases are pending for hearing before the court.

Why the charges laid against judiciary are not true?

  • Judiciary has effectively Protected Individuals Liberty: In the Prashant Bhushan case and the case of journalist Vinod Dua. After criticising government, these individuals got an early and effective hearing and also relief from the court.
  • Judiciary has effectively Protected the Freedom from arrest: In 2018, Teltumbde was granted interim protection from arrest by the Bombay High Court. These are reflective of the fact that the Supreme Court has always come to the rescue of citizens.
  • Judiciary has effectively Protected right to privacy: Historic verdicts by the SC such as nine judges held that the right to privacy is a fundamental right and it held that the CJI is a public authority under the RTI Act.
  • Judiciary has always Ensured justice: For example, Umar Khalid though a student he has been probed for his role in the Delhi riots for allegedly trying to incite violence during the Delhi riots, which cost more than 50 lives.
  • Judiciary has effectively Protected individuals freedom and choice: The Supreme Court in Shafin Jahan v. Ashokan K M (Hadiya case) observed that Hadiya, being a 24-year-old adult, had the power to make her own decisions, and the court could not compel her to go to her father or husband against her will.
  • Judiciary has effectively Protected individuals from malafide prosecution: Arnab goswami case prima facie appears to be a case of malafide prosecution. The Supreme Court rightly remarked that the accused should pursue his remedy before the high court.

The criticism of the judiciary stems not from facts or evidence but from ideological inclination and dislike of particular political leaders.


 

“Corruption Perception Index 2020” – India’s Rank Slips to 86th

Posted in 9 PM Daily Articles, CURRENT AFFAIRS, daily news, Daily News UpdatesTagged

Article 32 of Indian Constitution

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what is the Issue of application of Article 32

Dr B.R. Ambedkar had once said,

‘If I was asked to name any particular article in this Constitution as the most important – an article without which this Constitution would be a nullity, I could not refer to any other article except this one (Article 32). It is the very soul of the Constitution and the very heart of it.’

News: Recently a Supreme Court Bench headed by Chief Justice of India S. A. Bobde observed that it is “trying to discourage” individuals from filing petitions under Article 32 of the Constitution.

What was the case?

  • Kerala-based Siddique Kappan was arrested on 5 October when he was on his way to Hathras to report on the alleged gang rape and murder of a 20-year-old Dalit woman.
  • Initially, he along with 3 others was arrested under Section 151 of the Code of Criminal Procedure (CrPC), later he was booked on charges of sedition and sections of the Unlawful Activities Prevention Act (UAPA).
  • A habeas corpus petition seeking release of Kerala-based Siddique Kappan was filed in the Supreme Court.
  • However, it is not the sole case that has met the same fate, in an another case, Article 32 petition filed on behalf of Nagpur resident Sameet Thakkar (arrested for allegedly making objectionable comments against Maharashtra CM) was also declined.

What is the issue all about?

  • As per Faizan Mustafa, vice chancellor of the NALSAR University, ideally, cases must first go to the high court. However, SC should also be consistent in the matters, then only the desired results can be achieved.

Decisions in the similar cases

  • In a recent matter, the Bench of CJI Bobde, Justice A S Bopanna and Justice V Ramasubramanian had issued a contempt noticeto the Assistant Secretary of the Maharashtra Assembly who, in a letter to Republic TV editor-in-chief Arnab Goswami, had questioned him for approaching the top court against the breach-of-privilege notice.
  • The court had then said that the right to approach the Supreme Court under Article 32 is itself a fundamental right and that

“there is no doubt that if a citizen of India is deterred in any case from approaching this Court in exercise of his right under Article 32 of the Constitution of India, it would amount to a serious and direct interference in the administration of justice in the country”.

  • Even as the Supreme Court underlines the powers of the high courts, it has in the past transferred cases to itself from the high courts.

Transfer of Cases

  • Even though SC underlines the powers of the high courts, there are past examples of transferring cases Suo Moto, to itself from the high courts.
  • Most recently, the Supreme Court transferred the case involving land use for the national capital’s Central Vista project to itself from the Delhi High Court.
  • In 2018, the SC had transferred the case seeking probe into the death of judge B H Loya from the Bombay High Court to itself.
  • When such transfers take place petitioners lose a stage of appeal that would otherwise have been available had the High Court heard and decided the case.

Fundamental rights under article 32

  • Article 32 of the constitution is a Fundamental Right that  falls under Part III of the Constitution that includes the fundamental rights of individuals.
  • It provides individuals, seeking enforcement of other fundamental rights recognized by the Constitution, the right to approach the Supreme Court directly.
  • Under Article 32 the Supreme Court have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari.
  • The right guaranteed by this Article ‘shall not be suspended except as otherwise provided for by this Constitution’.
    • Under Article 226 of the Constitution, similar powers have been conferred on high courts, to enforce the fundamental rights of citizens. However, article 226 is not a fundamental right like Article 32.
    • The two provisions are not mutually exclusive and allow a citizen to either approach the high court that has jurisdiction over the case or the Supreme Court.
    • However, scope of Article 226 is wider than that of Article 32, as it covers issues other than fundamental rights as well.
  • Both the High Courts and the Supreme Court can be approached for violation or enactment of fundamental rights through five kinds of writs:
  1. Habeas corpus: It is issued against the illegal detentions and wrongful arrests to ensure personal liberty and considered as one of the most important writs for personal liberty.
  2. Mandamus:It is issued against public officials, governments, courts to perform a statutory duty
  3. Certiorari:Issued for re-examination of an order or decision by judicial, quasi-judicial or administrative authorities.
  4. Prohibition: Issued for directing judicial or quasi-judicial authorities to stop from going ahead with certain proceedings to ensure that it does not exceed its jurisdiction.
  5. Quo warranto:It is issued to prevent people from assuming positions in public office when she or he is not entitled to it.

Previous judgments related to article 32

  • In Romesh Thappar vs State of Madras (1950), the Supreme Court observed that Article 32 provides a “guaranteed” remedy for the enforcement of fundamental rights. “This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights,” the court observed.
  • In Additional District Magistrate, Jabalpur vs S S Shukla (1976), During the Emergency, the Supreme Court had ruled that the right to constitutional remedies under Article 32 would remain suspended during a national emergency.
  • 44th Constitutional amendment provided that president could issue orders suspending the right to move any court for the enforcement of fundamental rights, under Article 32, during a national emergency, with the exception of Article 20 and 21.

Conclusion

Constitutional experts say that it is eventually at the discretion of the Supreme Court and each individual judge to decide whether an intervention is warranted in a case, which could also be heard by the High Court first. There is need to bring in more clarity by judiciary on the matter of article 32 so that people do not lose their hope in the justice system as the ultimate remedy for the violation of their rights.

 

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What is ‘contempt of court’, and why does the A-G have to consent to these proceedings?

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News: Attorney General has given his consent for the initiation of criminal contempt proceedings against stand-up comedian Kunal Kamra for his tweets following the Supreme Court’s decision to grant interim bail to a television anchor.

Facts:

  • Contempt of Court: As per the Contempt of Courts Act 1971, contempt refers to the offense of showing disrespect to the dignity or authority of a court.
  • Types: The act divides contempt into civil and criminal contempt.
    • Civil contempt: It is willful disobedience to a judgment, decree, direction, order, writ or other processes of a court or wilful breach of an undertaking given to the court.
    • Criminal contempt: It means the publication (whether by words, spoken or written or by signs or by visible representations) of any matter or the doing of any other act whatsoever which
      • scandalizes or tends to scandalize or lowers or tends to lower the authority of, any court; or
      • prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
      • interferes or tends to interfere with or obstructs or tends to obstruct, the administration of justice in any other manner.
    • In 2006, the government brought in an amendment which now provides “truth” as defence provided it is bona fide and in public interest.
  • Prior Consent of AG: According to Contempt of Court Act, 1971, prior consent in writing of the Attorney General(AG) is required for the Supreme Court to initiate criminal contempt action in a case.
  • Punishment: A contempt of court may be punished with:
    • Simple imprisonment which may extend to six months or
    • Fine which may extend to two thousand rupees or With both.
    • However,the accused may also be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.

Read Also :-Important Acts 

Posted in 9 PM Daily ArticlesTagged

CONTEMPT OF COURT

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Context: Attorney-General K.K. Venugopal on Monday declined to give consent to the initiation of contempt proceedings against A.P. Chief Minister Jagan Mohan Reddy and his Principal Adviser Ajeya Kallam.

What is Contempt of court?

  • Contempt of Court is the offense of being disobedient to or being disrespectful towards a court of law.
  • Any action which defies a court’s authority or impedes the ability of the court to perform its functions or wilfully fails to obey a court order.
  • A judge may impose sanctions such as a fine or jail on the person, found guilty of contempt of court.

There are two types of contempt of Court:

  1. Civil Contempt
  2. Criminal Contempt

Civil contempt of Court: Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt has been defined as willful disobedience to any judgment, decree, direction, order, writ, or other processes of a court or wilful breach of an undertaking given to a court.

Criminal Contempt of Court: It is defined under Section 2(c) of Contempt of Court Act, 1971. According to which criminal contempt is any publication which may result in:

  • Scandalizing the Court by lowering its authority.
  • Interference in the due course of a judicial proceeding.
  • Creates an obstruction in the administration of justice. 
The contempt proceeding can be initiated only within 1 year from the commission of an offense.
An apology also forms a defense under the contempt of Court act, however, it should be unconditional and should be in good faith with the promise to abide by the order of the Court.

Source of Contempt Law:

The contempt powers of the Supreme Court trace their source to different provisions in the Constitution of India, namely, Article 32, 129, 131, 139A, and 142(2).

  • Article 129: “The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself”
  • Article 215:
  • “Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself”
  • High Courts have been given special powers to punish contempt of subordinate courts, as per Section 10 of The Contempt of Courts Act of 1971.
  • High Courts do not have the power to initiate contempt proceedings of the Supreme Court, if there is contempt of the Supreme Court then only the Supreme Court can initiate the contempt proceeding.
  • Article 142(2): Enables the Supreme Court to investigate and punish any person for its contempt.

Contempt of Courts Act of 1971

  • The Act defines the power of courts to punish for their contempt and regulates their procedure.
  • It gives courts powers to restrict an individual’s fundamental right to personal liberty for “scandalizing the court” or for “wilful disobedience” of any judgment, writ, direction, or order.
  • Under the Act, judges could also be tried if they act in contempt of court. For Example, Justice Karnan was awarded six months of jail term for contempt of SC.

The amendment to the Contempt of Courts Act, 1971 in 2006

Before the amendment, neither ‘truth’ nor ‘good faith’, were a defense against contempt proceedings in India. However, the 1971 amendment made truth a valid defense in all contempt proceedings if the publication is in the public interest and is bonafide. It also clarified that the Court may impose punishment for contempt only when it is satisfied that the action substantially interferes, or tends to substantially interfere with the course of justice. 

MID-DAY CASE
Amendment of 1971 Act in 2006 was not followed in the Mid-Day case, in which Delhi high court sentenced employees of English tabloid MID-Day for publishing scandalous reports against a retired Chief Justice. In their defense, Mid-Day submitted that whatever had been published was the truth and was a permissible defense in contempt of court case.

Judicial cases dealing with contempt law and Court’s views:

  • Hiralal Dixit vs. state of UP, 1954: Actual hindrance or obstruction in the administration of justice is not an essential condition, acts which may be derogatory and resulting in lowering of court’sin public eyes, may result in contempt of Court.
  • K. Daphtary vs. O.P. Gupta 1971: Any act which brings down the confidence of Judiciary in the minds of the general public or is hindering the administration of justice or affecting the reputation of the judges of the SC or the SC itself, can be read under Article 129 read with Article 142 and considered under contempt law.
  • Auto Shankar’s case, 1994: Court invoked the famous “Sullivan doctrine” that public persons must be open to stringent comments and accusations as long as made with bonafide diligence, even if untrue.

In the case of SUBRAMANIAN SWAMY V. UNION OF INDIA, 2016 it was held that the comments made regarding a particular Judge of the Court would not amount to contempt and this would amount to defamation under Section 499 of the Indian Penal Code, 1860. Thus, the comment or the publication should be of such nature that it hinders the administration of justice.

  • Duda P.N.V. Shivshankar Case 1998: SC observed that contempt jurisdiction should not be used by Judges to uphold their own dignity. In the free marketplace of ideas, criticism of the judicial system or the Judges should be welcomed until they don’t impair or hamper the “administration of justice”.

In the recent case where a press conference was held by four senior-most judges of SC was not a contempt of court as they had exercised their right of speech and expression under Art. 19(1)(a) of the constitution; and also their act was done in good faith and for the public interest.

  • Arundhati Roy Case: SC observed that fair criticism of the conduct of a Judge, the institution of the judiciary, and its functioning may not amount to contempt if made in good faith and in the public interest.
  • Sahara case, 2012: Five-judge bench of SC permitted contempt law as a pre-emptive mechanism in pending proceedings so that sensitive reports and comments don’t lead to a “real and substantial risk of prejudice to the proper administration of justice” and “the fairness of trial”.
  • Indirect Tax Practitioners’ Association vs. R.K. Jain, 2015: C. observed that the Court may permit ‘truth’ as a defense against contempt proceedings if two things are satisfied
  • It is in the public interest
  • The request for invoking said the defense is bona fide.

Recent instances where contempt of court proceedings was invoked by courts:

  • In October 2018, contempt proceedings were initiated by Delhi High Court against journalist S. Gurumurthy, who tweeted about alleged bias in the court’s decision in Bhima-Koregaon violence case.
  • The Bombay High Court in October 2018 sentenced a former journalist, KetanTirodkar, to three months’ simple imprisonment and Rs 2000 fine for posting defamatory allegations against sitting and retired judges on social media. The court observed that social media users don’t have the unfettered right to make baseless allegations citing freedom of speech and expression.

Contempt of court law is draconian and should be discouraged because:

  • Antithetical to freedom of speech: Article 19(1)(a)of the Constitution gives the right to freedom of speech and expression to all citizens, while Articles 129 and 215 curb people’s freedom to speak against the court’s functioning.
  • Subjective definition: The law is not objectively defined and can be used against even bonafide intentions. It is often used by judges arbitrarily to suppress their criticism by the public. As Justice Krishna Iyer said, the law of contempt has a vague and wandering jurisdiction with uncertain boundaries.

In the US, courts no longer use contempt to silence comments on judges or legal matters. The First Amendment to the US Constitution forbids the imposition of contempt sanctions on newspapers.

  • Conflict of interest: Contempt law invokes conflict of interest for the judiciary as it itself is the victim and the judge simultaneously.
  • Against democratic ethos: True democracy sustains with constructive criticism and contempt law suppresses criticism of judiciary by the public.
  • Against people’s sovereignty: Contempt law is not in consonance with the constitutional scheme which makes people sovereign and the source of all power.
  • Misplaced law: An enforced silence, in the name of preserving the dignity of the judiciary, would cause more resentment, suspicion and disrespect for the judiciary among people than the opposite.
  • Discontinued elsewhere: The offense of “scandalizing the court” continues in India while it was abolished in England and Wales long ago.In March 8, 2018, the Department of Justice wrote to Law Commission, asking it to amend the 1971 Act to drop “scandalizing the court” as a ground for contempt and restrict contempt to only “wilful disobedience” of directions/judgments of the court.
  • Lack of safeguards: Contempt law is draconian in nature without commensurate safeguards in favor of the persons charged with the accusation of having committed contempt of court.

Way-forward:

  • The right of the citizens to free speech and expression under Article 19(1)(a) should be treated as primary, and the power of contempt should be subordinate.
  • Judiciary should balance two conflicting principles, i.e. freedom of expression, and fair and fearless justice.
  • This extraordinary power must be sparingly exercised considering the subjectivity involved in its definition and only when there is public interest demand.
  • The purpose of the contempt power should not be to uphold the majesty and dignity of the court but only to enable it to function.
  • It’s time for the legislature to take steps to amend the Contempt of Court Act and objectively define the confines of contempt law and its applicability.
  • Establishing a review mechanism, as a safeguard against judicial tyranny and to remove the conflict of interest, by instituting an independent panel to verify the actions which extract contempt law.
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