Class Notes 4 You

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 - suggestin...

1) Out of 25 High Courts in the country only one state HC has a woman Chief Justice (CJ Hima Kohli at Telangana High Court). Only 73 out of 661 High Court judges, which is roughly 11.04% are women. 2) In five High Courts, namely, Manipur, Meghalaya, Patna, Tripura and Uttarakhand, there is not even a single woman judge. Advantages of increasing women presence in judiciary: 1. Women judges contribute far more to justice than improving its appearance: they also contribute significantly to the quality of decision-making, and thus to the quality of justice itself.  Women judges bring those lived experiences to their judicial actions, experiences that tend toward a more comprehensive and empathetic perspective- one that encompasses not only the legal basis for judicial action, but also awareness of consequences on the people affected. Suggestions to increase women’s participation in the higher judiciary: 1. Making the process of Judicial appointment more transparent, inclusive and invo...

Chief Justice of India remarked on the quite low representation of women at all levels in the legal field and promised that he would take up the demand for their higher representation beyond 50% on the bench with his colleagues. Status of representation of Women in Higher Judiciary:  1). There has never been a woman Chief Justice of India.  2). Of the 256 Supreme Court judges appointed in the past 71 years, only 11 (or 4.2%) have been women.  Desirability of greater representation to women in the higher judiciary: 1. By their mere presence, women judges enhance the legitimacy of courts, sending a powerful signal that they are open and accessible to those who seek recourse to justice. 2. It will ensure diversity of perspectives is fairly considered. E.g.: more balanced and empathetic approach in cases involving sexual violence. It will instil greater public trust in the judiciary.  3. Improvements in women’s representation in the judiciary remain intrinsic to the cons...

The twin principles of Judicial independence and judicial accountability have been the central theme of various debates and discussions in almost all democratic countries of the world which cherish the golden principle of Rule of Law. The judicial system of India and UK is converging in following aspects: Judiciary is the highest Interpreter of the laws, byelaws. Action of the executive can be declared as Ultra Vires by the Judiciary. The Rule of Law in Britain is safeguarded by the provision that judges can only be removed from office for serious misbehaviour and according to a procedure requiring the consent of both the Houses of Parliament. It is diverging in the following respects: 1. In India, the system of appointment for the judges is collegium system, and in the UK, the Judicial appointment commission appoints judges. 2. Jury trials were abolished in most Indian courts by the 1973 Code of Criminal Procedure, while it exists in the UK. 3. In the case of the British system, the l...

The world’s oldest and largest democracy is known for the value attached to the Fundamental rights. But thebdifferences between them on the different adjectives of Fundamental rights is also easily noticeable. The difference between USA and India with respect to Right to equality can be traced from its introduction in the constitution. In the USA, right to equality was inserted in the Bill of Rights through fourteenth Amendment in 1868, While in India, it was inserted since the commencement of the constitution.  American Constitution • It follows the notion of Equal Protection of Law i.e., Equals should be treated alike and unlike should be treated equally. • Equality in Representation: Members from each state attained the session in equal number regardless of the population, area or any other criteria. • No Provision for Affirmative action. Thus, Focus was more on Equality of Opportunity. • Right to equality does not provide any social equality in America. The Original Constituti...

Separation of power refers to the division of the government responsibilities into distinct branches to limit any one branch from exercising the core functions of another, in order to prevent concentration of Power. Does not accept the principles in strict sense: 1. In the USA, there is a strict separation of power mentioned in Articles 1, 2 and 3 for Legislative, Executive and Judicial power respectively. 2. No democratic system exists with an absolute separation of power or absolute lack of separation of power. 3. In India, we can find separation of power in between Executive and Judiciary in Article 1950 but it is not strict as District magistrate has some Judicial powers too. Likewise, the Separation of Power between Legislature and Executive is fluid as seen in Anti Defection Law. In the Raj Narain case, The Court held, A rigid separation of powers as under the American Constitution or under the Australian Constitution does not apply to India, as there is checks and balances like:...

Intro:Lord Bryce: Therese is no better test of excellence of the govt than the performance of its judicial system. Phases of judiciary- 1950-1967 : positivist reading(literal reading) of the constitution (legal positivism) 1967-77: Challenger to executive overreach Judicial activism particularly after KIeshwananda Bharati Judiciary as an institution: Admirer- Prof Upendra Baxi- says it has done chemotherapy of carcinogenic indian politics. From SC of India to SC of Indians. Says SC is essentially acting as the institution of governance and not merely settling disputes Critic P B Mehta- calls it a paradoxical institution( want others to be accountable but khud nahi). Called judiciary’s use of powers of contempt as “judicial barbarism.” Calls it promise of uncertainty, ie it keeps changing its views in subsequent judgments  India is an example of judicial sovereignty. Mentions "post democracy" ie strengthening of non elected institutions. Lavanya Rajamani of Centre for polic...

Judicial Backlog NJDG— 2.9 3 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 destroye...