Pendency of cases, Collegium, Independence, Accessibility and Special Powers

• Courts as Guardian:

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•   Through its conduct, the SC has transformed itself from the protector of the rule of law into an enthusiastic abettor of its daily violation.     
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• High court can review the constitutional amendment when amendment has impact on the functioning of state government.
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• Pendency of cases: 
• National Judicial data grid: 3.3 cr cases pending in indian courts
• 58k-in-SC,49-lakh-in-HCs,2.93-in-subordinate-courts.
• HCs:
• 57-lakh-pending-cases
• 40%-vacancies
• Recently, Parliament amended law to increase strength of SC judges from 31 to 34 (Including the CJI)
• The SC (Number of judges) Act 1956, originally provided for a maximum of 10 judges. 
• A124 provides for less than 65 yrs of age as eligibility criteria. Consider enhancing this
• Preserve the Apex court’s primary role as ultimate arbitrator of constitutional questions and statutory interpretation. 
• Law commission report - suggesting a new system with one constitution bench at Delhi, and 4 cessation benches for different regions of the country. 
• Need for research inputs: eg- 'Zero pendency courts' project by Delhi HC in collab with DAKSH - assess impact of no backlog on judicial pendency and devise ideal timelines for diffetent types of cases
• Fast track courts:
• Recommended by 11th FC in 2000. were to be for 5 yrs, till 2005 originally
• To be established by state govts in consultation with High courts.
• Brij mohan an ors case - SC said that states that want to continue with FTCs as a permanent feature can go ahead, but at their own expense. (Centre refused to provide funding beyond 2010)
• Currently (2019), a scheme for FTCs for rape and POCSO cases. 
• Women:
• 1.33 lakh rape cases pending trial, at end of 2016.  - NCRB
• Budgetary-allocation:
• budget allocated to the judiciary is between 0.08 and 0.09 per cent of the GDP
• Representative-nature:
• SC:Only-one-muslim-judge.No-sikh,jain,tribal
• Judge-Popn-ratio:20-per-million.
• Other-countries:50-70-per-million
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• Cases:
• Security of State vs fundamental rights - 
• ADM Jabalpur case, 1976 : Allowed suspension of the writ of habeus corpus during emergency .
• A142 - complete justice.
• Recently invoked in a CIVIL DISPUTE b/w private parties for the first time (Ayodhya Dispute, 2019)
• Curative-Petition:
• Rupa-Ashok-Hurra

• Reforms: Judiciary:

                Collegium: 

• Doctrine-of-revival:
• Accepted common law :when an amending act is struck down the pre-amendment version of the act will not revive automatically
• Above-doctrine-gives-3-exceptional-situations-where-revival:(supreme court in State of Tamil Nadu vs Shyam Sunder-upheld-1st-two-exceptions)
1. When-lack of legislative competence causes an Amendment to be struck down
2. Amendment-violates-FR-of-citizens
3. Amendment-against the basic essential values of the constitution.
• Evolution    
• 1st Judges case, 1981 - consultation with CJI  in matters of appointment. Primacy to his opinion
• Second Judges case,1993 - Consulation meant concurrence. Opinion not CJI’s individual, but institutional opinion formed in consulation with 2 senior most judges
• Third judges case - Collegium expanded to a 5-member body of CJI and 4 senior most judges 
• Issues:
• Opaqueness and lack of transparency. Recent transfer of CJ of Madras HC to Meghalaya. 
• Scope for nepotism, involvement in public controversies
• Overlooking of talented junior judges. 
• Reforms needed:
• Transparent, participatory procedure
• Should ensure independence, reflect diversity , demonstrate professional competence and integrity. 
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• Case-Pendency:4cr
• ES2018-19:formation of Indian Courts and Tribunal Services to provide administrative support functions and advise the judiciary on legal reforms.
• e-courts,e-filing

                Independence:

•  2nd Judges case - seniormost judge alone should be appointed as CJI   

CJI as master of roster:

• “the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have” - Dr. Ambedkar
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         Accessibility:

• SC’s judgements now available in 9 regional languages.

Contempt of Courts: 

• A129 and 215 empower SC and HC respectively to punish people for contempt
• S10 of Contempt of Courts Act 1971 - power of high courts to punish for contempt of their subordinate courts.
• Issues with contempt powers:
• A19 - contempt as a reasonable restriction. Tendency to misuse.
• Recent criminal contempt proceedings against journalist Prashant Bhushan for tweets
• Mulgaonkar principles
• Contempt of court act- prior approval of Attorney general to initiate contempt
• Suo motu cognizance does not need AG’s prior approval - said SC
• 6 months imprisonment, 2000 rs fine
• Fair and accurate reporting, fair criticism, good faith, truth not contempt
• Need for an objective law
• International practise:
• USA - contempt no longer used in response to comment on judges or legal matters
• Canada - Contempt tied to real, substantial, immenent danger to admn
• England - legal position has evolved 
• Judges and discipline - 
• Sexual harassment allegations
• Mr. Karnan first sitting judge convicted of Contempt of court in 2017
• Lack of credible mech for removal. Removal proceedings complicated
• transparency of collegium
• Misuse of contempt powers
• ADR:
• Lok-Adalats:
• 2015:more than 15.14 lakhs Lok Adalats have been organized in the country since its inception. More than 8.25 crore cases have been settled
• The Restatement of Judicial Values issued in 1997 should be used as an instrument to properly guide judicial conduct.
• In-house peer review process
• Appointments:
• CJI: Outgoing CJI sends his recommendations to govt. Govt cannot send back for reconsideration, as in appointment of other SC judges. 
• State security vs rights: Court case:
• Kartar singh Case , 1994 - TADA upheld
• Naga people’s movement of human rights case (1997) - Court allowed govt to extend and apply th legislation with impunity to any disturbed area
• AK Gopalan, 1950 - upheld preventive detention without trial of communist leader AK GOpalan 
• Balance of power
• Recent examples:
• Highest court of UK recently declared actions of PM Boris Johnson to prorogue Parliament as unlawful. (Intention of OM to conclud Brexit process with minimum parliamentary scrutiny. 
• Independence:
• employment/favours after retirement. Ex-CJI’s nomination to Rajya sabha
• Currently, only bar is to not pleador act in any court or before any authority. 
• 16 point code - called ‘Restatement of values of judicial life’ adopted in 1997 - lays the basis of how post retirement conduct should be.
• Vidhi centre for Legal Policy: 70 of the last 100 judges who retired from SC until 2016 took up post-retirement jobs
• US federal court judges remain judges for life since no retirement age
• Ambedkar rejected an absolute ban on post-retirement role, since he felt judiciary decides cases in which govt has no interest. No longer valid since govt is one of largest litigants today. 
• Structural problem: reqd by law to appoint retired judges to tribunals, commissions etc
• Role model - 1970, M Hidayatullah - last judgement as CJI on privy purses case. Highly political, so publically rejected any post-retirement job. Several years after retirement, VP of India’s post 
• Some verdicts and issues:
• Anuradha Bhasin v. UoI - J&K internet shutdown:
• SC: Right to Internet is a FR under A19. 19(1)(a) - carry any occupation, trade or business
• On S144:
• Section 144 cannot be used to suppress legitimate expression of opinion or grievances or exercise of democratic rights
• When imposed based on apprehended danger, danger must be an ‘emergency'
• Must strike a balance between individual rights and concerns of the state. 
• Powers under S144 must be exercised in a reasonable, bona fide manner. The order must state material facts
• On procedure:
• Court recognized that the Competent authority to issue an order - Secretary to Ministry of Home Affairs. Clear reasons in writing be given for issue of such orders. 
• Reiterated the doctrine of proportionality. “You must not use a steam hammer to crack a nut, if a nutcracker would do"
• ’There can be no legal monstrosity than a secret statute’ - SC , invoking L. FUller 
• Facts:
• India tops the list of internet shutdowns globally. 106 stutdowns in 2019 alone, as per Software Freedom Law centre. 
• Suspension procedure: 
• Relevant acts: IT act 2000, CrPC 1973, Telegraph Act 1885 (Temporary suspension of Telecom Rules notified in 2017 under this act. Section 144 has often been used too
• Death penalty:
• Recent-SC:Balancing-need-for-preserving-human-life-with-collective-conscience-of-society.
• Shatrugan Chauhan guidelines 2014: related to prisoners on death row. (protecting constitutional rights of prisoners.)
• 14 day time lag between closure of clemency route and hanging
• Legal aid in helping draft clemency
• Info on exploring judicial remedies even after appeals for mercy rejected. 
• EV Chinnaiah vs State of AP: Castes notified by Presi as Sch Caste under A341 of constitution, they  take the shape of a homogenous class and thus there cannot be any further classification of the class.
• Collective conscience of society as a justification for death penalty: first used by SC in Machchi singh vs Punjab, 1983
• Bachchan singh:
• For death penalty, aggravating must outweigh mitigating
• Project 39A - research orgn of National Law univ. Report on Death penalty. Death [enalty framework given by SC completely collapsed, utter inconsistency, etc
• Divide-reforms:
• Institutional:
• LC(125,229)-recommends-increase-no-of-benches
• Computerization,automation
• Structural
• Resource-mgmt:
• All India Judges Association vs Union of India case :ratio-be-50-judges-per-mn-popn
• Professional-court-managers  (13th-FC)
• Special powers:
• Curative petition: First evolved under Rupa Ashok Hurra case 2002. Supported by A137. May be filed after review plea against final conviction is dismissed. 
• CAN BE entertained if petitioner establishes violation of principles of natural justice. 
• Must be rare
• must be accomapied by a certificate from a senior advocate
• Only when majority judges (including 3 senior most) conclude that matter needs hearing. Should be listed before same bench as far as possible
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• Judicial innovations:
• Plea bargaining: refers to a person charged with a criminal offence negotiating with the prosecution for a lesser punishment than what is provided in law by pleading guilty to a less serious offence
• Introduced in India in 2006 amending CrPC
• In India, can be initiated only by accused
• offences attracting Death sentence, life sentence, prison term > 7 yrs : NOT allowed under this
• offences affecting ’socio-economic’ conditions of country, or against a woman or child <14 yrs - NOT allowed
• Law comm, Justice malimath - endorsed plea bargaining
• Transformative constitutionalism:
• Book ‘Dramatic decade: Landmark cases of Modern India’ -about most imp cases like Afzl guru, Homosexuality, Nirbhaya etc
• courts in India are struggling with a huge backlog of cases. As of 2016, there are 27 million pending cases and close to 90 million people are still waiting for justice
• Nirbhaya case (December 16, 2012) in the capital city enraged people. Protests occurred on social networking sites Facebook and WhatsApp, with users replacing their profile pictures with a black dot to symbolise pain and anger
• LGBT case - wake-up call to exhibit tolerance and acceptance sans prejudice
• Uphaar tragedy 1997- how lack of time-bound intervention can be tragic. (country’s lax laws – which punish negligence resulting in death with out-dated penalties and just two years of imprisonment, as seen in the Uphaar case – need amendment)
• Activism:
• Menaka Gandhi- A21’s interpretation revolutionized
• PIL for reducing price of stents. reduced by 84%

• Judiciary and rights/Activism:
• govt cannot abdicate duty to feed migrant workers merely for lack of ration cards. This disability is due to poverty and lack of edu - Ashok Bhushan and MR Shah in judgement

• Tribunals:
• Tribunals Reform ordinance 2021:
• Abolished several tribunals like Film Certificate Appellate Tribunal.
• Chandra Kumar vs UoI
• National Tribunals Commission - independent oversight body to supervise functioning of tribunals, appointments and disciplinary action against members
• Madras Bar Association vs UoI (2020) -  a search-cum-selection committee'

Conclusion:

• Speedy-justice-a-FR,pre-requisite-to-rule-of-law,good-governance