Issues in Judiciary

Judicial Backlog

• NJDG—2.93 cr in Sub-ord court, 49 lakh in HCs, 58000 in SC—3.5 cr ( 88% in lower jud)

Reasons for Backlog

• Understaffed—20 judges/ml (120th LC-50 judges/ml) + 38% vacant in HCs
• Less working hours— Judges Vacation + Frequent Adjournments
• Lack of court management system--Lack of modernisation and digitisation  
• Malimath committee— Reason for backlog are— 
• Archaic laws requiring judicial interpretation 
• Litigation explosion--PILs
• Unnecessary adjournments
• Indiscriminate resort to writ petition 
• Increased Constitutional awareness + New rights granted to Public-- RTI, PILs
• SC entering into Uncharted territory— SLP, J.A
• Burden of Govt cases— Centre & State Govt responsible for 46% backlog 
• Low Budgetary Allocation leads to poor Infra— only 0.09% of GDP

Impacts of Judicial Backlog 

• Soli Sorabjee— “Justice delayed will not only be justice denied, it will be the rule of law destroyed”. 
• Denial of “Timely Justice” amounts to Denial of Justice itself— violates Right to speedy trial under Art 21.
• Social cost— Higher crime rate, poverty, Criminalization of politics, Erodes faith in RoL
• Overcrowding of Prisons— 68% under-trials— violation of HRs
• Economic cost— ES 2017-18— Judicial pendency discourages investment, hampers tax collection, decreases EoDB--Judicial delays cost India an estimated 1.5% of its GDP annually.

Steps taken

• App--‘JustIS’ for efficient court management--intro by Central Govt
• Intro of FTCs, jail-adalats (“prison courts”), and plea-bargaining.
• SC launched an app— National Service & Tracking of Electronic Processes (NSTEP)— For-expeditious service of notice & summons

Way forward to tackle Judicial Backlog

• Address Vacancy—
1. 120th report of LCI recommended for Judges Fixation Formula
2. AIJS
• Strengthen ADR + Initiatives like Gram Nyayalaya, Mobile Village courts, Lok Adalats 
• Capitalise over IT — 
• P.S.C Recommended for e-courts 
• Digitizing courts records
• Better case & Court Management system— '
• 13th FC & ES 18-19 introduced the concept of Professional Court Managers
• Computerisation & Automation 
• Regional Benches, Increase working hours of courts.  
• Economic Survey 2018-19—  
• Est of Indian Courts & Tribunal Services to focus on the administration aspects of legal system
• Deployment of tech to improve efficiency — e-courts.  

CJI Bobde—Public trust is “only legitimate source of power for judicial system"

All India Judicial Services

• Aimed at creating a centralised cadre of District Judges who will be recruited centrally through an all-India exam & allocated to each State along the lines of AIS
• Recommended by--

1. 1st proposed by 14th Report of L.C (1958)
2. Jus Jagannath Shetty Commission 1996
3. Provision of AIJS was also included in Art 312 through 42nd CAA
4. NITI Aayog‘s its ‘Strategy for New India@75’ also mooted for making appointments to the lower judiciary.

+ves

• To fill vacancies—PSC on Law & Justice (2013)— It would help fill approx 5k vacancies across the District & Subord Judiciary-- Address Judicial pendency
• Recruitment in lower judiciary happens state-wise--so low stds--AIJS will improve Efficiency of lower judiciary
• A meritocratic judiciary is the need of the hour which is possible with a competitive recruitment process.
• To standardise process of appointments to lower judiciary.
• Rep for marginalised & attract best legal talent based on merit—Efficiency of judiciary would be increased.
• Address issue of judicial pendency, Corruption & nepotism

Arguments against AIJS

• Centre-State conflict-- will mean transferring recruitment & app powers of from State Govt (Art 233) to centre
• Issue of differences in local laws of each state.
• Against IoJ as some other body will have a control in app
• AIJS no panacea— Vidhi legal service study
• Local languages and dialects would pose problems    

ONLINE JUSTICE DELIVERY

+ves—

• Address High pendency + reduce time & cost involved—Promote EoDB
• Enhanced efficiency of courts—Reduction of paperwork will relieve judges & court staff from adm duties
• Tackling Infra constraints
• Improving T/P & A/C in judicial system

Initiatives:

• e-Courts Mission Mode Project—For Dist Courts—for ICT enablement of all dist & subordinate courts
• e-Courts Services Mobile app & e-Courts National Portal
• NJDG—Web portal that provides data related to no. of cases pending
• Judicial Service Centre—est at all computerised courts which serve as a single window for filing petitions by litigants/ lawyers + obtaining information on ongoing cases
• e-Committee of SC—Constituted by GoI in SC to assist CJI in formulating a National policy on computerization of Indian Judiciary

Challenges

• Lack of of investment in IT infra & State of art tech
• Lack of tech knowhow among court officials & absence of dedicated in-house tech support.
• Low awareness amongst litigants & advocates
• Digital divide in access to justice
• Cyber security threats

Contempt of Court

Introduction

• Offense of being disobedient or disrespectful towards the dignity or authority of court of law.

• CoCA 1971--Civil contempt & Criminal Contempt

• 274th LC report—recommended its continuance
• TT krishnamacharii — advocated CoC as a reasonable restriction under Art 19
• Pt Thakurdas Bhargava— believed possibility of misuse`— as who will judge the judges

Need / objectives for Contempt Law  

• To uphold majesty & dignity of courts + insulate from motivated & unwarranted criticism that lower its authority & erodes public Trust in it—sine qua non for RoL

Source of Contempt Law: 

• Art 129, Art 215, Art 141, Art 142
• CoC Act 1971
• CoC (Amendment) Act 2006— Introduced “Truth & good faith”as a valid defence, if it was in public interest and was invoked in a bona fide manner-Punish only when there is "substantially interference” in Adm of justice 

Issues with Contempt Law  

• Stifle FoSE Art 19(1)(a) + Misused

• Vague & wide jurisdiction—Jus Krishna Iyer— Law of contempt has a vague & wandering jurisdiction with uncertain boundaries

• Against principle of Natural Justice— No one shall be the judge in his own case

• International practice—Abolished in US, UK, Canada        

Judicial cases 

• Auto shankar’s case, 1994– Court invoked “Sullivan doctrine” that public can make comments & accusations as long as made with bonafide diligence.
• Arundhati Roy Case: fair criticism may not amount to cont if made in good faith & in public interest.  

Recent instances of CoC:  

• Bombay HC in 2018 sentenced a journalist for posting defamatory allegations against judges on social media. 
• SC invoked against Prashant Bhusan for posting tweets.

Way-forward:

• Jus Kurian Joseph—Intra­ court appeal should be introduced as a safeguard in a suo motu contempt case 
• USA SC in Bridges vs California— “an enforced si­lence would engender more resentment, suspicion & disrespect for judiciary, not the res­pect it seeks”. 

ADR Mechanisms

• Conflict Mgt in civil cases via a mechanism of dispute resolution that is alternative to traditional adversarial litigation.
• Sec 89 of CPC--Settlement of disputes outside court through—Arbitration, Conciliation, Mediation, settlement through Lok Adalat
• Arbitration & Conciliation Act, 1996 -
• LSA Act 1987— To encourage out-of-court settlements

+ves-- less formal, Less time consuming, flexible, cost-effective and expeditious  

• Ease burden on courts & ↓ backlog of cases
• Speedy & expeditious resolution of disputes in Cost effective manner with ↑ efficacy
• Informal—Free from technicalities of courts—So fewer procedural delays
• Make Justice 4AQ to ordinary people
• Promotes Amiable settlement / Harmonious resolution of disputes
• Confidentiality— which is imp in business or family matters  

Shortcomings of ADR Mechanisms

• Wastage of Time/ Money if Case Not Resolved—Then parties have to approach court—Ayodhaya mediation
• Limited Judicial Review—Arbitral award is final & binding on parties & excluded from appeal to courts
• Lack of awareness & legal literacy.
• Lack of appropriate arbitrators

Mediation

• Settlement b/w parties with help of impartial & unbiased 3rd party mediator
• Commercial Courts Amendment Act 2018—Gave great impetus to Pre-inst Mediation & Settlement

Arbitration

• Consent based adjudication processes outside traditional judicial system by an independent person or inst
• Dispute is submitted (By agreement of parties) to arbitrators who make a binding decision on dispute—Parties opt for a Pvt dispute res procedure instead of going to court.

Arbitration and Conciliation Act, 1996—Amendment 2019–On recommendation of B.N. Srikrishna Committee

Aims to make India a hub of inst arbitration for both domestic & Intl arbitration.

Conciliation

• Res achieved by compromise or voluntary agreement.
• Unlike arbitration, it does not render a binding award-Parties are free to accept or reject recommendations

Negotiation

• Self counseling b/w the parties to resolve dispute.
• Settlement by exchange of views & issues concerning parties.
• No statutory recognition

Post -Retirement Appointment issue

-ves

• Erodes public trust & confidence in IoJ, on which legitimacy of Judiciary rests.
• Raises suspicion over Sanctity of Pre-retirement judgments, irrespective of their merits.
• Conflicts of interest & ? over his Integrity
• Violates fundamentals of SoP—as Govt is largest litigant—so Law Commission Said— Ban them
• KT Shah:- Judges should not take executive offices with Govt.

Argument in favour

• No legal/ const bar— Art 124(7) restricts post-ret app in Judiciary itself, not in Other posts.
• Presence of judges in Parl—expertise

Conclusion:

• Judicial credibility rest on— ‘Not only Justice being done but also seen to be done’.
• Consider a “cooling off” period of 2 yr as mooted by former CJIs Kapadia & Justice Thakur.
• Judiciary & Executive should remain mutual watchdogs and not the mutual admirers
• Rojer Mathew case—Tribunals should not be a heaven for retired judges.There should be restriction on Post-Retirement app

Needed Judicial Reforms

• Regional Benches of SC—
• Venkaih Naidu suggested for 4 regional Benches to tackle enormous backlog & ensure speedy disposal.  
• 229th report of LC— SC should consist of 2 Divisions (a) Constitutional Division (b) Legal Division-Only Const matters be assigned to Const Division in Delhi + 4 Benches be set up to deal with all appels from HCs judgments
• SC in 1986 recom est of National Court of Appeal with regional Benches at Chennai, Mum & Kol.
• In V. Vasantha Kumar case, 2016–SC referred this matter to a Constitutional Bench
• Women in Judiciary 
• Vidhi Centre for Legal Policy— Since 1950–only 8 women judge in SC & HCs 9% + no women CJI till now + Only 1 woman so far in SC collegium
• PSC on L&J (2015)—Reservation for women in higher judiciary.

MASTER Of ROSTER

• Campaign for Judicial A/C & Reforms vs UoI (2017)—There cannot be any “Presumption of Mistrust” As CJI is “inst in itself" with ‘exclusive prerogative’ to allocate cases.  
• Its purpose is to ensure the disciplined & efficient transaction & not to assert superior authority. 
• CJI as 1st among equals should exercise his powers reasonably + consult colleagues.
• App an administrator to help in carrying business of inst.
• Collegium for allocating cases. 

Quasi-Judicial Bodies

Introduction

• Org on which powers resembling a court of law have been conferred but it is not a court 
• They deal basically with disputes with Adm
• Their powers are usually limited to a particular area of expertise, such as financial markets (SEBI), HRs (NHRC)
• Ex—NHRC, Lok Adalats, CIC, CVC, CAT, Consumer Disputes Redressal Commission

Reasons for emergence of QJBs 

• Overburdening of judiciary—So alternative justice system to lessen the burden of the courts.
• Complexity of laws—demanding more technical knowledge about specific sectors.
• Conventional judiciary have procedural rigidity + costly.

Shortcomings

• Their decisions appealable in court
• Their recommendations r mostly advisory in nature like NHRC and CIC.
• They can’t even award compensation or relief to the victims directly, but can only recommend it.
• Not as independent as the judiciary. Frequent interference from the executive is evident.

Tribunalisation of Justice

Intro—

• Quasi-judicial inst, created by 42nd CAA—added Part XIV-A—Tribunals—Art 323 A, B
• Specialised dispute resolution mechanism
• Their Constitutional Validity was legitimised in L. Chandra Kumar case vs UoI (1997)

Need / Significance--

• For Unburdening of judiciary
• Expeditious resolution of complex matters—
• Specialisation through expert involvement—↑ effectiveness & quality of justice delivery
• Adm & logistical support from executive
• Flexibility of procedure—Not restrained by Rigid provisions of CPC, CrPC, rather follows Principle of natural justice.
• To adjudicate on complex & Tech matters of 21st cen—Special courts with domain expertise r required.
• Less formal, less expensive & a faster way to resolve disputes.

Issues

• Lack of Autonomy & independence—Dependent for app, funding, infra, removal on Executive - the largest litigant—creates conflict of interest
• App of retired judges as CP—shows favouritism
• Adm concerns—
• Non-uniformity in app process, qualification of members, age of retirement, infra etc
• Diff tribunals working under diff ministries which hampers their overall efficiency.
• Pendency & vacancy—272nd LC Report
• Pendency in CAT is 44k+ cases.
• Lacks adequate infra to work smoothly
• Vacancy—74th PSC (2014)— 40% of sanctioned strength were lying vacant
• Appeal—Tribunals were created to provide specialized justice delivery + ↓ burden on courts—But appeals from tribunals have inevitably managed to enter mainstream judicial system.
• Against SoP— Tribunalisation is seen as encroachment of judicial branch by Govt.

How Tribunals curtail jurisdiction of ordinary courts?

• Being a QJB- Tribunals go against SoP + allows dilution of judicial mechanism—Executive entering in arena of ordinary courts.
• L. Chandra Kumar case—Power of HC under Art 226 & 227 to exercise J.R over decisions of tribunals is a part of Basic structure. However, decisions of some of tribunals, like NGT continue to be taken on appeal only before SC bypassing HC as Court of Appeal, depriving them of their power of judicial review.
• Conferring a direct right of appeal to SC from tribunals has changed SC from a constitutional court to a mere appellate court &  also resulted in a backlog of cases

SC cases

• Sampath Kumar vs UoI (1987)—Appeals from tribunals would lie directly to SC
• L. Kumar Case vs UoI (1997)—Appeals would 1st lie to Division bench of HC then to SC
• Rojer Mathew case—Tribunals should not be a heaven for retired judges.There should be restriction on Post-Retirement app

New Rules for Tribunals 2020--

• Defined Qualifications for members—Only persons having judicial or legal experience eligible
• App—By Central Govt on recommendations of “SCSC" having—CJI (or a judge nominated by him), Prez/CP of concerned tribunal, 2 Govt secy from concerned min/Dept
• Removal—SCSC recommend removal+ conduct inquiry into allegations of misconduct
• Fixed Term—4 yr
• Independence—Not eligible for re-app

Way 

• SC in Madras Bar Ass vs UoI & 272nd LC report of—Est a National Tribunal commission—as an independent supervisory body to oversee working Of tribunals—app, eligibility, functioning, adm & infra etc
• Qualifications—R. Gandhi vs UoI (2010)—Tribunal members shd be persons of a rank, capacity & status as nearly as possible equal to that of court.

Conclusion

• Tribunals should be revamped keeping in mind 272nd LC report
• Tribunals are meant to supplement ordinary courts & cannot supplant them.

National Green Tribunal (2010)

• For effective & expeditious disposal of cases related to protection & conservation of env, forests & other natural resources.

Challenges

• 2 Imp acts - WPA, FRA— have been kept out of NGT’s jurisdiction
• Lack of clarity on its position in relation to HC— Decisions frequently challenged in HCs under argument that HC are superior to NGT
• Moving from a judicial forum to an oversight body:- By shutting down the redressal mechanism through court-room argumentation, the NGT seems to have limited its role to merely an oversight body, rather than a judicial forum. 
• Excessive delegation to committees—To oversee compliance of diff env laws etc—Committee Raj is taking over the Tribunal.
• Its Decisions often criticised & challenged due to their repercussions on economic growth & Dev
• Lack human & financial resources—high pendency

Landmark cases:

• Almitra H. Patel case—Complete prohibition on open burning of waste on lands
• Manoj Misra Vs DDA—Art of Living Foundation was penalised for damaging Yamuna plains
• Ordered prohibiting all diesel vehicles over 10 yr old to ply in Delhi-NCR 

Water Disputes Tribunal

• For settling disputes b/w states on ? of water-sharing of rivers
• Governed by ISWDA 1956
• ISWDA (Amendment) 2019— Single water disputes tribunal be set up, with multiple regional benches

Income Tax Appellate Tribunal (ITAT)—1941

• 1st experiment of tribunalization in Indian history.
• Deals with appeals under Direct taxes acts.

Judicial governance 

• PBM— we are witnessing ‘judicial co-governance’.

Why judicial co-governance?—Due to combination of executive failure & breakdown of federal compact—

1. Breakdown of ‘congress system’ resulted into instances of failure of exe & leg.
2. After KBC (1973) & Maeneka Gandhi Case, judiciary has been further empowered towards judidical governance .
3. Art 131, Exercise jurisdiction over federal disputes like ISWD by SLP
4. PIL
5. Even const scheme provides avenues for judicial activism— Art 13, 32, 141.
6. Asymmetry of power—SC most powerful branch-It’s judgment is binding (Art 141) + JR powers
7. Lackadaisical approach of other organs— create vacuum in governance—Vishakha guidelines
8. Growing Rights consciousness, globalization, active media, civil society org, env activism etc

Instances of judicial overreach

• Shyham Narayan Chouksey case-- National anthem mandatory
• Banning of liquor sale within 500m NHs/SHs

Role of judiciary is concerned in strengthening RoL—Mixed one—

• Till 1967—Phase of Passive Judiciary & exe/leg overreach—AK Gopalan etc
• From 1967—Emergence of activist judiciary acting as “the sentinel ” of const
• KB  case—Basic Structure
• Maeneka Gandhi—DPL
• But While protecting RoL—Some clashes with exe
• Actions in 2G case , setting up SIT for Black Money
• At times disappointed— Rafale , CAA , Prashant Bhushan’s CoC , Internet blockade J&K

Judicary's Role during Covid-19—

• ordered forming a 12-member national task force for T/P allocation of oxygen to States
• Intervened to alleviate plight Migrant workers
• Directed Centre to pay compensation to family of those who succumbed to Covid-19
• Shashank Deo Sudhi vs UoI—directed that COVID-19 testing shd be free of cost.
• Jerryl Banait vs UoI—directed for availability of PPE kits & security to medical prof.

Commentaries on Judiciary

• PBM (“A shape shifting Justice ”)— SC has set a new precedent for putting on hold laws passed by Parl w/o substantive hearing on the content of the laws
• Gautam Bhatia
• Highlights a Collous attitude of Judiciary towrds Human liberty, which is destructive of RoL
• RoL breaks down when courts appear to be telling the citizenry—“show me the man and I’ll show you the law”—Selective protection of RoL—Instant bail to some while years of denial to others.
• Kalpana Kannabiran--India’s judiciary is witnessing the fall of ‘literal legalism’ & advent of age of judicial activism, where Court is seen as a political inst that can solve social disagreement.
• P Ramachandran Rao v State of Karnataka, 2002:--“The SC shd not consider itself to be an imperium in imperio ”-- shd exercise Judicial restraint