- Courts as Guardian:
Lines:- Through its conduct, the SC has transformed itself from the protector of the rule of law into an enthusiastic abettor of its daily violation.
- High court can review the constitutional amendment when amendment has impact on the functioning of state government.
- 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
- 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)
- When-lack of legislative competence causes an Amendment to be struck down
- Amendment-violates-FR-of-citizens
- 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.
- 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
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
- 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