Four SC Collegium resolutions give an insight into government’s priorities

21, Jan 2023

Why in News?

Four Supreme Court Collegium resolutions backing online free speech, dignity based on sexual orientation and integrity in judicial appointments deliver an extraordinary display of transparency, but at the government’s cost.

What is Collegium System?

It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.
The SC collegium is headed by the CJI and comprises four other senior most judges of the court.
A HC collegium is led by its Chief Justice and four other senior most judges of that court.
Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.
Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.
The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.

Intelligence Bureau (IB): It is a reputed and established intelligence agency. It is authoritatively controlled by the Ministry of Home Affairs.
It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.

Evolution of the Collegium System:

First Judges Case (1981):

It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.

Second Judges Case (1993):

SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.

Third Judges Case (1998):

SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Procedure for Various Judicial Appointments:

For CJI:

The President of India appoints the CJI and the other SC judges.
As far as the CJI is concerned, the outgoing CJI recommends his successor.
In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.

For SC Judges:

For other judges of the SC, the proposal is initiated by the CJI.
The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
The consultees must record their opinions in writing and it should form part of the file.
The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

For Chief Justice of High Courts:

The Chief Justice of High Court is appointed as per the policy of having Chief Justices from outside the respective States.
The Collegium takes the call on the elevation.
High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

Criticism of the Collegium System:

Opaqueness and a lack of transparency.
Scope for nepotism.
Embroilment in public controversies.
Overlooks several talented junior judges and advocates.

Attempts to reform the Appointment System:

The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.

Related Constitutional Provisions:

Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
Article 217 of the Indian Constitution states that the Judge of a High Court shall be appointed by the President consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

Way Forward:

Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
It should ensure independence, reflect diversity, demonstrate professional competence and integrity.
Instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appoint in order of preference and other valid criteria.

Supreme Court clears 6,844 pending cases

20, Dec 2022

Why in News?

The Supreme Court has disposed of 6,844 cases since Chief Justice of India (CJI) D.Y. Chandrachud took over as the country’s top judge on November 9.

About the Supreme Court:

The Supreme Court of India is the highest judicial court and the final court of appeal under the Constitution of India, the highest constitutional court, with the power of judicial review.
India is a federal State and has a single and unified judicial system with three tier structure, i.e. Supreme Court, High Courts and Subordinate Courts.

What are the concerns?

The retirements come at a time when the court is in the process of steadying itself after particularly brutal waves of the pandemic. There is a huge pendency of cases.
India’s legal system has the largest backlog of pending cases in the world – as many as 30 million pending cases.
This number is continuously increasing and this itself shows the inadequacy of the legal system.
And also due to this backlog, most of the prisoners in India’s prisons are detainees awaiting trial.

Pendency in Supreme Court:

The Supreme Court’s statistics show that 70,362 cases are pending with it as of April 1, 2022.
Over 19% of them are not ready to be placed before a Bench for judicial hearing as they have not completed the required preliminaries.
While 52,110 are admission matters, 18,522 are regular hearing cases.
The number of Constitution Bench cases (both main and connected matters) totals 422.
The Supreme Court has only recently resumed full physical hearings after two years of virtual systems.

Various steps taken by the Government to reduce Pendency:

Adoption of “National Litigation Policy 2010” to transform government into an Efficient and Responsible litigant.
All states formulated state litigation policies after National Litigation Policy 2010.
Legal Information Management and Briefing System (LIMBS) was created in 2015 with the objective of tracking cases to which the government is a party.
The Supreme Court had advised the centre that criminals sentenced to imprisonment for 6 months or a year should be allocated social service duties rather than be sent to further choke the already overflowing prisons.

Need of the hour:

Revise national litigation policy.
Promotion of alternative dispute resolution mechanisms to encourage mediation.
Coordinated action between government and judiciary.
Judicial capacity should be strengthened in the lower courts to reduce the burden on higher courts.
Increase expenditure on the judiciary.
Improve courts case management and court automation system.
Create subject-specific benches.
Robust internal dispute resolution mechanisms.
Judges should write Shorter and more Pointed judgments.

Supreme Court Quashes Kerala HC order Granting Anticipatory Bail

03, Dec 2022

Why in News?

The Supreme Court has recently quashed the anticipatory bail granted by the Kerala High Court to former police and intelligence officers, including retired Kerala Director General of Police Siby Mathews, accused of being part of a conspiracy to frame ISRO scientist Nambi Narayanan in an espionage case in 1994.

What did the apex court say earlier in this regard?

A Bench while considering an application for grant of anticipatory bail, had to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, etc.
The apex court judgment set aside an anticipatory bail granted by the Madhya Pradesh High Court in a murder case. The High Court had granted the bail, despite refusal by the trial court earlier. A man was shot dead by two men while a third held him down over a rivalry.
Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant and the facts of the case, while considering whether to grant anticipatory bail.
The court reiterated the settled law that an appellate or superior court could set aside anticipatory bail granted by a lower court on the ground that the latter “did not consider material facts or crucial circumstances”.

What is Anticipatory Bail?

Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested.
Under Indian criminal law, there is a provision for anticipatory bail under Section 438 of the Criminal Procedure Code.
Law Commission of India in its 41st report recommended incorporating this provision in procedure code.
This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence.
It is only issued by the Sessions court and High Court.

Why such a law is needed?

Anticipatory bail helps to prevent influential powers from implicating their rivals in false cases.
Section 438 (anticipatory bail) of the Code of Criminal Procedure protects people from the ignominy of detention in jail for days on end and disgrace to their reputation.
Anticipatory bail is more needed now because there is rising trend of political rivalry and is showing signs of steady increase.

SC previous Verdicts regarding Anticipatory Bail:

The questions referred to the Constitution Bench was, whether the protection granted to a person under Section 438 should be limited to a fixed period till the accused surrenders in court.
Whether the life of anticipatory bail should end when the accused is summoned by the court.
SC said that the life or duration of an anticipatory bail order does not normally end at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial.

What are the contradictions?

Denial of bail amounts to deprivation of the Article 21 of the Indian Constitution (fundamental right to personal liberty in a free and democratic country).
The specter of arbitrary and heavy-handed arrests: too often, to harass and humiliate citizens, and oftentimes, at the interest of powerful individuals (and not to further any meaningful investigation into offences) led to the enactment of Section 438.
The protection against arrest should be in favour of the accused. Restricting the protection would prove unfavorable for the accused.

Is there any a restriction or condition for granting bail?

It is open for a court to impose appropriate conditions for grant of anticipatory bail if the specific facts or the feature of the offence involved demands it.
Courts have to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation or tampering of evidence, including intimidating witnesses and fleeing justice.
But restrictions/conditions can be imposed only on a case-to-case basis.

What is the concern?

The court held that a plea for anticipatory bail can be filed even before the registration of FIR as long as there is reasonable basis for apprehension of arrest and clarity of facts.
However, the grant of protection should not be “blanket” but confined to specific offence or incident for which relief from arrest is sought.

Transfers of High Court Judges

29, Nov 2022

Why in News?

The frequent criticism that the Collegium system of judicial appointments is opaque, appears to be more valid in the case of transfers of judges from one High Court to another.

Background:

A fresh round of transfers among the many that have occurred in recent years has brought the contentious topic to the forefront once more.
Lawyers recently raised the matter of the transfer of a Gujarat HC judge (Justice Kariel) to the Chief Justice of India (CJI), citing rumours that the Gujarat HC Chief Justice was uninformed of the impending transfer.

The Indian Constitution on the transfer of judges:

Article 222: It provides for the transfer of HC judges, including the Chief Justice. The President, after consultation with the CJI, may transfer a judge from one HC to any other HC and a compensatory allowance is provided to the transferred judge.
Interpretation: The executive could transfer a judge, but only after consulting the CJI.

The Supreme Court’s view on the issue:

The SC (in 1977) rejected the idea that HC judges can be transferred only with their consent, as the transfer powers can be exercised only in the public interest. Also, the President is under an obligation to consult the CJI.
In S.P. Gupta vs. President of India (1981), also known as the Judges Transfer Case/the First Judges Case, the SC ruled that the consultation with the CJI did not mean ‘concurrence,’ thus giving primacy to the executive in the matter of appointments and transfers.
However, this position was overruled in the ‘Second Judges Case’ (1993). The opinion of the CJI, formed after taking into account the views of senior-most judges, was to have primacy.
Since then, appointments are being made by the Collegium.

The current procedure for transfers:

The proposal for transferring a HC judge (including a Chief Justice) should be initiated by the CJI and the consent of the judge is not required. All transfers are to be made in the public interest.
For transferring a judge other than the Chief Justice, the CJI should take the views of –

The Chief Justice of the court concerned, as well as the Chief Justice of the court to which the transfer is taking place.
One or more SC judges

The views, expressed in writing, should be considered by a full Collegium of five – the CJI + 4 senior-most judges of the SC.
The recommendation is sent to the Union Law Minister → the Prime Minister → the President.

Need for the transfer of judges:

To exchange talent across the country.
To prevent the emergence of local grouping in the judiciary. There have been proposals that one-third of the composition of every HC should have judges from other States.

What makes transfers controversial?

The public feel that there is a punitive element behind the decision.
As a matter of practice, the SC and the government do not disclose the reason for a transfer.
The power of transfer has always been seen as a possible threat to judicial independence.

Attempts to reform the Appointment System:

The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.

Related Constitutional Provisions:

Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
Article 217 of the Indian Constitution states that the Judge of a High Court shall be appointed by the President consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

Way Forward:

Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
It should ensure independence, reflect diversity, demonstrate professional competence and integrity. Instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appoint in order of preference and other valid criteria.

National Judicial Appointments Commission (NJAC)

18, Nov 2022

Why in News?

Chief Justice of India D.Y. Chandrachud has recently agreed to list in due course a writ petition to reconsider the collegium system of judicial appointments to the Supreme Court and the High Courts.

Background:

On 16 October 2015, in a 4-1 majority verdict, the Supreme Court held that both the Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014, were unconstitutional as it would undermine the independence of the judiciary.
The majority said the two laws affect the independence of the judiciary, and judicial appointments, among other things, should be protected from executive control.

About NJAC and the Act:

NJAC is a body responsible for the appointment and transfer of judges to the higher judiciary in India. NJAC Bill sought to replace the collegium system of appointing the judges of Supreme Court and High Courts with judicial appointments commission wherein the executive will have a say in appointing the judges.
A new article, Article 124A, (which provides for the composition of the NJAC) was to be inserted into the Constitution.
The Bill provided for the procedure to be followed by the NJAC for recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court (SC), and Chief Justice and other Judges of High Courts (HC).
According to the bill the commission will consist of the following members:
Chief Justice of India (Chairperson, ex officio)
Two other senior judges of the Supreme Court next to the Chief Justice of India – ex officio
The Union Minister of Law and Justice, ex-officio
Two eminent persons (to be nominated by a committee consisting of the Chief Justice of India, Prime Minister of India and the Leader of opposition in the Lok Sabha or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in Lok Sabha), provided that of the two eminent persons, one person would be from the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a woman.
The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination.

How proponents of NJAC defend it?

According to them the enactment of the 99th Amendment was intended at redressing the imbalance created by the verdict of court in second judges case.
For them, NJAC would have been a more broad-minded forum, providing a genuine chance to participate and influence the selection of our higher judiciary — not merely to the Supreme Court and the executive, but also to laypersons (eminent persons) outside the constitutional framework.

Why the court struck down NJAC act?

The court has held that the appointment of judges, coupled with primacy of judiciary and the CJI, was part of the basic structure of the Constitution and that the parliament, through NJAC act, violated this basic structure.

Collegium system of appointments of Judges to the Higher Judiciary

11, Nov 2022

Why in News?

Recently, the Union Minister of Law and Justice citicised the collegium system under which appointments of judges to the High Courts (HC) and the Supreme Court (SC) are made, as opaque.

What is Collegium System?

It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.
The SC collegium is headed by the CJI and comprises four other senior most judges of the court.
A HC collegium is led by its Chief Justice and four other senior most judges of that court.
Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.
Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.
The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.

Intelligence Bureau (IB): It is a reputed and established intelligence agency. It is authoritatively controlled by the Ministry of Home Affairs.
It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.

Evolution of the Collegium System:

First Judges Case (1981):

It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.

Second Judges Case (1993):

SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.

Third Judges Case (1998):

SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Procedure for Various Judicial Appointments:

For CJI:

The President of India appoints the CJI and the other SC judges.
As far as the CJI is concerned, the outgoing CJI recommends his successor.
In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.

For SC Judges:

For other judges of the SC, the proposal is initiated by the CJI.
The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
The consultees must record their opinions in writing and it should form part of the file.
The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

For Chief Justice of High Courts:
The Chief Justice of High Court is appointed as per the policy of having Chief Justices from outside the respective States.
The Collegium takes the call on the elevation.
High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

Criticism of the Collegium System:

Opaqueness and a lack of transparency.
Scope for nepotism.
Embroilment in public controversies.
Overlooks several talented junior judges and advocates.

Attempts to reform the Appointment System:

The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.

Related Constitutional Provisions:

Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
Article 217 of the Indian Constitution states that the Judge of a High Court shall be appointed by the President consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

Way Forward:

Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
It should ensure independence, reflect diversity, demonstrate professional competence and integrity.
Instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appoint in order of preference and other valid criteria.

Bhandari sworn in as Chief Justice of Madras HC

15, Feb 2022

Why in News?

Tamil Nadu Governor R.N. Ravi administered oath of office to Madras High Court Chief Justice Munishwar Nath Bhandari in the presence of Chief Minister M.K. Stalin at the Raj Bhavan recently.

About the News:

ACJ Bhandari, hailing from Rajasthan, assumed office in the Madras High Court on November 22, following his transfer from Allahabad High Court, where he had served as its ACJ.
At the time of his transfer, two senior judges, Justices Raghvendra Singh Chauhan and Mohammad Rafiq, from his parent High Court (Rajasthan), were already serving as Chief Justices.
Since Justice Chauhan retired on December 23, the Supreme Court collegium passed resolutions recommending the elevation of Justice Bhandari as the Chief Justice of Madras High Court.
He is the 32^nd Indian Chief Justice of the High Court and 43^rd Chief Justice if the 11 British Chief Justices since August 15, 1862 are also taken into consideration.

What is Collegium System?

It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.
The SC collegium is headed by the CJI and comprises four other senior most judges of the court.
A HC collegium is led by its Chief Justice and four other senior most judges of that court.
Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.
Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.
The Government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
Intelligence Bureau (IB): It is a reputed and established intelligence agency. It is authoritatively controlled by the Ministry of Home Affairs.
It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.

Evolution of the Collegium System:

First Judges Case (1981):
It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
Second Judges Case (1993):
SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
Third Judges Case (1998):
SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Procedure for Various Judicial Appointments:

For CJI:
The President of India appoints the CJI and the other SC judges.
As far as the CJI is concerned, the outgoing CJI recommends his successor.
In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
For SC Judges:
For other judges of the SC, the proposal is initiated by the CJI.
The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
The consultees must record their opinions in writing and it should form part of the file.
The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
For Chief Justice of High Courts:
The Chief Justice of High Court is appointed as per the policy of having Chief Justices from outside the respective States.
The Collegium takes the call on the elevation.
High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

Criticism of the Collegium System:

Opaqueness and a lack of Transparency.
Scope for Nepotism.
Embroilment in Public Controversies.
Overlooks several talented Junior Judges and Advocates.

Attempts to reform the Appointment System:

The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.

Related Constitutional Provisions:

Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
Article 217 of the Indian Constitution states that the Judge of a High Court shall be appointed by the President consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

Way Forward:

Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
It should ensure independence, reflect diversity, demonstrate professional competence and integrity.
Instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appoint in order of preference and other Valid Criteria.

Collegium Recommends Bhandari for HC CJ Post

01, Feb 2022

Why in News?

The Supreme Court collegium has recommended the elevation of Madras High Court Acting Chief Justice (ACJ) Munishwar Nath Bhandari as its Chief Justice.

About the News:

ACJ Bhandari, hailing from Rajasthan, assumed office in the Madras High Court on November 22, following his transfer from Allahabad High Court, where he had served as its ACJ.
At the time of his transfer, two senior judges, Justices Raghvendra Singh Chauhan and Mohammad Rafiq, from his parent High Court (Rajasthan), were already serving as Chief Justices.
Since Justice Chauhan retired on December 23, the Supreme Court collegium passed resolutions recommending the elevation of Justice Bhandari as the Chief Justice of Madras High Court.
He would take oath after the issuance of a Presidential notification.

What is Collegium System?

It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.
The SC collegium is headed by the CJI and comprises four other senior most judges of the court.
A HC collegium is led by its Chief Justice and four other senior most judges of that court.
Names recommended for appointment by a HC collegium reaches the Government only after approval by the CJI and the SC collegium.
Judges of the higher judiciary are appointed only through the Collegium system and the government has a role only after names have been decided by the Collegium.
The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
Intelligence Bureau (IB): It is a reputed and established intelligence agency. It is authoritatively controlled by the Ministry of Home Affairs.
It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.

Evolution of the Collegium System:

First Judges Case (1981):
It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
Second Judges Case (1993):
SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
Third Judges Case (1998):
SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

Procedure for Various Judicial Appointments:

For CJI:
The President of India appoints the CJI and the other SC judges.
As far as the CJI is concerned, the outgoing CJI recommends his successor.
In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
For SC Judges:
For other judges of the SC, the proposal is initiated by the CJI.
The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
The consultees must record their opinions in writing and it should form part of the file.
The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.
For Chief Justice of High Courts:
The Chief Justice of High Court is appointed as per the policy of having Chief Justices from outside the respective States.
The Collegium takes the call on the elevation.
High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

Criticism of the Collegium System:

Opaqueness and a lack of transparency.
Scope for nepotism.
Embroilment in public controversies.
Overlooks several talented junior judges and advocates.

Attempts to reform the Appointment System:

The attempt made to replace it by a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.

Related Constitutional Provisions:

Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President after consultation with such a number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
Article 217 of the Indian Constitution states that the Judge of a High Court shall be appointed by the President consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

Way Forward:

Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
It should ensure independence, reflect diversity, demonstrate professional competence and integrity.
Instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appoint in order of preference and other valid criteria.

Consent of AG to initiate contempt proceedings

25, Jan 2022

Why in News?

Attorney General K K Venugopal has recently granted consent to initiate contempt proceedings against ‘Dharam Sansad’ leader Yati Narsinghanand over his alleged remarks against the Constitution and the Supreme Court.

Need for Consent:

As per Section 15 of the Contempt of Courts Act, the nod of the Attorney General or the Solicitor General is a Condition precedent to set the criminal contempt proceedings in motion before the Apex Court.

What is the law on Contempt of courts?

The Contempt of Courts Act 1971 defines civil and criminal contempt, and lays down the powers and procedures by which courts can penalise contempt, as well as the penalties that can be given for the offence of contempt.
Contempt of court is the offense of being disobedient to or disrespectful toward a court of law and its officers in the form of behavior that opposes or defies the authority, justice and dignity of the court.

Why is the consent of the Attorney General required to Initiate Contempt proceedings?

The objective behind requiring the consent of the Attorney General before taking cognizance of a complaint is to save the time of the court.
This is necessary because judicial time is squandered if frivolous petitions are made and the court is the first forum for bringing them in.
The AG’s consent is meant to be a safeguard against frivolous petitions, as it is deemed that the AG, as an officer of the court, will independently ascertain whether the complaint is Indeed Valid.

Under what circumstances is the AG’s consent not needed?

The AG’s consent is mandatory when a private citizen wants to initiate a case of contempt of court against a person.
However, when the court itself initiates a contempt of court case the AG’s consent is not required.
This is because the court is exercising its inherent powers under the Constitution to punish for contempt and such Constitutional powers cannot be restricted because the AG declined to Grant Consent.

What happens if the AG Denies Consent?

If the AG denies consent, the matter all but ends.
The complainant can, however, separately bring the issue to the notice of the court and urge the court to take suo motu cognizance.
Article 129 of the Constitution gives the Supreme Court the power to initiate contempt cases on its own, independent of the motion brought before it by the AG or with the consent of the AG.

SC upholds validity of OBC quota in NEET admissions

21, Jan 2022

Why in News?

The Supreme Court recently upheld the constitutional validity of quota for Other Backward Classes candidates in National Eligibility cum Entrance Test’s (NEET) All India Quota seats for undergraduate and postgraduate medical and dental courses, noting that “Reservation is not at odds with merit” in open competitive examinations.

What was the Apex Court’s ruling?

If open examinations present equality of opportunity to candidates to compete, reservations ensure that the opportunities are distributed in such a way that backward classes are equally able to benefit from such opportunities which typically evade them because of structural barriers.
This is the only manner in which merit can be a democratising force that equalises inherited disadvantages and privileges.
Otherwise claims of individual merit are nothing but tools of obscuring inheritances that underlie achievements.
The court said an open competitive exam only ensures formal equality and does not end widespread ingrained inequalities in the availability of and access to educational facilities to certain classes of people, including the Other Backward Classes (OBC).

What is NEET?

The National Eligibility-cum-Entrance Test (NEET) is the entrance examination for entry to all undergraduate (NEET-UG) and postgraduate (NEET-PG) medical and dental courses in the country.
Until 2016, the All India Pre-Medical Test (AIPMT) was the national-level entrance Examination for Medical Colleges.
State Governments used to hold separate entrance tests for seats that were not contested at an all-India level.
NEET was held for the first time in 2003, but discontinued the following year.
On April 13, 2016, the Supreme Court upheld the newly inserted section 10-D of the Indian Medical Council Act.
This provided for a uniform entrance examination to all medical educational institutions at the undergraduate level and postgraduate level in Hindi, English and various other Languages.
Since then, NEET has been the uniform entrance test for medical courses across the country.

What is the All-India Quota?

Although the same examination is held across the country, a chunk of the seats in state medical/dental colleges is reserved for students domiciled in their respective states.
The remaining seats —15% in UG and 50% in PG — are surrendered by the states to the All India Quota.
The AIQ scheme was introduced in 1986 under the directions of the Supreme Court to provide for domicile-free, merit-based opportunities to students from any state to study in a good medical college in any other state.
A student Domiciled in Uttar Pradesh, for example, may be eligible for admission to a seat in a state Government medical college in West Bengal, provided she scores high enough in the National Merit List.
If her score is not high enough for AIQ, she may still hope for admission under the state quota in her home state.
In deemed/central universities, ESIC, and Armed Forces Medical College (AFMC), 100% seats are Reserved under the AIQ.

What was the Reservation Policy followed so far?

Until 2007, no reservation was implemented within the All-India Quota for medical admission.
On January 31, 2007, in Abhay Nath v University of Delhi and Others, the Supreme Court directed that reservation of 15% for Scheduled Castes and 7.5% for Scheduled Tribes be introduced in the AIQ.
The same year, the Government passed the Central Educational Institutions (Reservation in Admission) Act, 2007 providing for 27% reservation to OBC students in central Government Institutions.
While state government medical and dental colleges provide reservations to OBCs in seats outside the All India Quota, this benefit was so far not extended to seats allocated under the AIQ in these State Colleges.
The 10% EWS quota under the Constitution (One Hundred And Third Amendment) Act, 2019, too, has been implemented in central educational institutions, but not in the NEET AIQ for state Institutions.

What led to the Decision?

The denial of OBC and EWS reservations has been the subject of protests for years.
In July last year, the Madras High Court ruled that OBC students too can avail reservation in the AIQ.
It held that the reservation could not be implemented for the then academic year for want of time, and can be implemented from 2021-22.

Way Forward:

The privileges that accrue to forward classes are not limited to having access to quality schooling and access to tutorials and coaching centres to prepare for a competitive Examination but also includes their social networks and Cultural Capital (communication Skills, accent, books or Academic Accomplishments) that they inherit from their family.
The cultural capital ensures that a child from the forward classes is trained unconsciously by the familial environment to take up higher education or high posts commensurate with their family‘s standing.
This works to the disadvantage of individuals from social backward classes who are first-generation learners and come from communities whose traditional occupations do not result in the transmission of necessary skills required to perform well in open examination.
Thus, merit is not solely of one’s own making. The rhetoric surrounding merit obscures the way in which family, schooling, fortune and a gift of talents that the society currently values aids in one‘s advancement.
Thus, the exclusionary standard of merit serves to denigrate the dignity of those who face barriers in their advancement which are not of their own making.

CBI files Chargesheet against Former Allahabad HC judge

28, Dec 2021

Why in News?

The CBI has filed its chargesheet against retired Allahabad High Court Judge Justice S.N. Shukla in a corruption case for allegedly favouring a private medical college in his orders.

Historical Background of the Issue:

The agency had sought the High Court’s approval to prosecute the retired judge earlier this year. Following the grant of sanction, it can now file a charge sheet for further legal proceedings.
The case was registered in December 2019 on the basis of a preliminary enquiry initiated by the CBI on September 8, 2017, into the alleged commission of gross misconduct by Justice Shukla and others.
As alleged, the Medical Council of India (MCI) had barred the Prasad Institute of Medical Sciences in May 2017 from admitting students for two years due to sub-standard facilities and non-fulfilment of the requisite criteria. Similar action had been taken against 46 other medical institutions.
The Trust challenged the order in the Supreme Court. Subsequently, it is alleged, a conspiracy was hatched and the petition withdrawn with the Court’s permission. Then, another petition was filed before a Division Bench of the Allahabad High Court in Lucknow on August 24, 2017.
The next day, Mr. Quddusi and the institute’s chairman met Justice Shukla at his residence and “delivered illegal gratification”. According to the CBI, the petition was heard later that day by the Division Bench comprising Justice Shukla and a favourable order was passed.
The MCI challenged the order in the Supreme Court. During the hearing, the Trust did not claim any benefit from the High Court order, but requested that its bank guarantee not be encashed, which was permitted.
The agency alleged that the institute’s chief then attempted to get back the illegal Gratification from Justice Shukla and a part of it was returned.

Stipulated guidelines by the SC in the K. Veeraswami case:

The majority held that no criminal case shall be registered under Section 154 of the Criminal Procedure Code (an FIR) against a judge of the High Court, Chief Justice of the High Court or a judge of the Supreme Court unless the government first “consults” the Chief Justice of India.
The justification given was that the CJI’s assent was imperative as he was a “participatory functionary” in the appointment of judges.
The Veeraswami case specifically dealt with the Prevention of Corruption Act in judiciary, but the majority judgment had extended its ambit to “any criminal case”.
“Due regard must be given by the government to the opinion expressed by the Chief Justice. If the Chief Justice is of opinion that it is not a fit case for proceeding under the Act, the case shall not be registered,” the majority judgment held.
The verdict held that if the Chief Justice of India himself is the person against whom the allegations of criminal misconduct are received, the government shall consult any other judge or judges of the Supreme Court.
If the CJI allows the FIR to be registered, the government shall, for the second time, consult him on the question of granting sanction for prosecution.
The Veeraswami judgment holds that “it shall be necessary and appropriate that the question of sanction be guided by and in accordance with the advice of the Chief Justice of India”. The majority in the Constitution Bench classifies a judge as a “public servant”.
Consultation with the CJI while registering a criminal case against a judge, whether of the High Court or the Supreme Court, has been made mandatory to protect the independence of judiciary.
Similarly, the Supreme Court has also laid down guidelines for the arrest of a judicial officer of the subordinate judiciary.

What’s next if FIR is Filed?

The Delhi Judicial Service Association versus State of Gujarat judgment of the Supreme Court was the product of the notorious treatment meted out to the Nadiad Chief Judicial Magistrate by a few Gujarat police officials.
It had the country’s legal and judicial bodies in an uproar, compelling the Supreme Court to issue directions of the procedure to be followed while arresting a judicial officer. Primarily, the court held that a judicial officer “should be arrested for any offence under intimation to the District Judge or the High Court”.
The immediate arrest shall only be a “technical or formal arrest”, after which it should be immediately communicated to the District and Sessions Judge of the district concerned and the Chief Justice of the High Court.
The arrested judicial officer shall not be taken to a police station without the prior orders of the District Judge and no statements shall be recorded from him or her except in the presence of a counsel. He or she will not be handcuffed.
Section 3 of the Judges (Protection) Act of 1985 protects judges and former judges of the Supreme Court and the High Courts from “any civil or criminal proceedings” for any act, thing or word committed, done or spoken by him in the course of their judicial duty or function. No court shall entertain such complaints.
Section 77 of the Indian Penal Code exempts judges from criminal proceedings for something said or done during judicial duties.
However, the government can initiate criminal proceedings against a sitting or former judge of a superior court under sub section (2) of Section 3 of Judges (Protection) Act, 1985 if it can produce material evidence to show that a judgment was passed after taking a bribe.

PLEA CHALLENGING APPOINTMENT OF ADDITIONAL JUDGE REJECTED

05, May 2020

Why in News?

The Supreme Court rejected a petition filed by a district judge challenging the appointment of a ‘junior’ judicial officer as an additional judge of the Karnataka High Court on the ground that it breaches the Seniority Rule.

What is the Issue?

In his plea, Shivamogga Principal District Judge RKGMM Mahaswamiji said: It is a case of superseding/passing over of a senior District judge (who was appointed on February 25, 2008, under reserve category ie., Scheduled Caste) by junior district judge and recommendation of Respondent No. 11 (P N Desai) by the collegium of Karnataka High Court.
It is unlawful, arbitrary and in clear violation of statutory rules / administrative instructions contained in the official memorandum dated October 9, 1985, and involved bias of malafide and it clearly violated the functional rights guaranteed to the petitioner under Articles 14 and 16 of the Indian Constitution.

Appointment of the Judges of High Courts:

The procedure of appointing the Judges of the High Courts in India is slightly different from the appointment of the Judges of the Supreme Court.
As per article 217, the chief Justice of the high court is appointed by the President in consultation with the Chief justice of India as well as the Governor of the state in question.
A collegium system has evolved over the years in which a Collegium headed by the CJI makes recommendation to the government for appointment of judges.
The Collegium recommends the names to the law ministry which after scrutinizing send the paper to the president.
The president either approves the names or returns the names for reconsideration of the Supreme Court.
If still the Supreme Court sends the same names president appoints the persons recommended.

Qualification to Become a High Court Judge:

A person to be appointed as a judge of a high court should be a citizen of India. Further,
He should have held a judicial office in the territory of India for ten years or
He should have been an advocate of high court(s) for ten years.
There is no minimum age fixed for high Court judges, and unlike in Supreme Court, there is no provision for appointment of a distinguished jurist as a judge of a high court.

Term and Salary of HC Judges:

A Judge of High Court holds the office until he completes the age of 62 years. (In Supreme Court it is 65 years).
The salaries and allowances of the Chief Justice of High Court and Judges of the High Court are decided by the parliament by law, time to time.
The salaries and other expenses of the judges and maintenance of the state high courts are charged from consolidated fund of the state.
Pension of retired high court judges comes from Consolidated Fund of India.

Removal of the Judge of a High Court:

A Judge of the High Court can be removed from office only for proven misbehaviour or incapacity and only in the same manner in which a Judge of the Supreme Court is removed.
The President of India can remove a Judge of the High Court, from his office only if each house of the parliament passes a resolution by a two third majority of its members present and voting in each house requesting him to remove the Judge.

How HC Judges are transferred?

Transfer of High Court Judges is done by the President in consultation with the following

Chief justice of India’ whose opinion is formed by senior most judges of the Supreme Court.
Chief Justice of the High court from where transfer is to take place.
Chief Justice of the High Court to where the transfer is to take place

Post retirement Jobs of HC Judges:

The retired permanent judges of a high court are prohibited from pleading or acting in any court or before any authority in India except the Supreme Court and the other high courts.
However, Government Generally uses the retired higher judiciary judges as heads of various Commissions.
There has been a demand from certain sections of the society that there should be a “cool off” period of two years for the Retired Judges before they are Installed in other offices.

BASIC STRUCTURE AND THE KESAVANANDA BHARATI CASE

28, Apr 2020

Why in News?

The concept of ‘basic structure’ came into existence in the landmark judgment in Kesavananda Bharati vs State of Kerala case (1973) 47 years ago on 24^thApril 1973.

About the News:

Exactly forty-seven years ago, on April 24, 1973, Chief Justice Sikri and 12 judges of the Supreme Court assembled to deliver the most important judgment in its history.
The case of Kesavananda Bharati v State of Kerala had been heard for 68 days, the arguments commencing on October 31, 1972, and ending on March 23, 1973.
By a 7-6 verdict, a 13-judge Constitution Bench ruled that the ‘basic structure’ of the Constitution is inviolable, and could not be amended by Parliament.
The basic structure doctrine has since been regarded as a tenet of Indian constitutional law.

Background of the Case:

All this effort was to answer just one main question: was the power of Parliament to amend the Constitution unlimited?
In other words, could Parliament alter, amend, abrogate any part of the Constitution even to the extent of taking away all fundamental rights?
In the early 1970s, the government of then Prime Minister Indira Gandhi had enacted major amendments to the Constitution (the 24^th, 25^th, 26^thand 29^th) to get over the judgments of the Supreme Court in RC Cooper (1970), Madhavrao Scindia (1970) and the earlier mentioned Golaknath.
In RC Cooper, the court had struck down Indira Gandhi’s bank nationalisation policy, and in Madhavrao Scindia it had annulled the abolition of privy purses of former rulers.
All the four amendments, as well as the Golaknath judgment, came under challenge in the Kesavananda Bharati case– where relief was sought by the religious figure Swami Kesavananda Bharati against the Kerala government vis-à-vis two state land reform laws.

What Constitutes the Basic Structure?

The Constitutional Bench ruled by a 7-6 verdict that Parliament should be restrained from altering the ‘basic structure’ of the Constitution.
The court held that under Article 368, which provides Parliament amending powers, something must remain of the original Constitution that the new amendment would change.
The Court did not define the ‘Basic Structure’, and only Listed a Few Principles— Federalism, Secularism, Democracy — as being its part. Since then, the court has been adding new features to this concept.

Basic Structure’ Since Kesavananda Bharati Case:

The ‘basic structure’ doctrine has since been interpreted to include the supremacy of the Constitution, the rule of law, Independence of the judiciary, doctrine of separation of powers, Federalism, Secularism, Sovereign Democratic Republic, the Parliamentary system of government, the principle of free and fair elections, welfare state, etc.

Few Criticisms regarding the Verdict:

Critics of the doctrine have called it undemocratic, since unelected judges can strike down a constitutional Amendment.
At the same time, its proponents have hailed the concept as a safety valve against Majoritarianism and Authoritarianism.

What are the Outcomes and Implications of the Judgment?

If the majority of the Supreme Court had held (as six judges indeed did) that Parliament could alter any part of the Constitution, India would most certainly have degenerated into a totalitarian State or had one-party rule.
At any rate, the Constitution would have lost its supremacy.
The 39^thAmendment prohibited any challenge to the election of the President, Vice-President, Speaker and Prime Minister, irrespective of the electoral malpractice. This was a clear attempt to nullify the adverse Allahabad High Court ruling against Indira Gandhi.
The 41^stAmendment prohibited any case, civil or criminal, being filed against the President, Vice-President, Prime Minister or the Governors, not only during their term of office but forever. Thus, if a person was a governor for just one day, he acquired immunity from any legal proceedings for life.

If Parliament were indeed supreme, these shocking amendments would have become part of the Constitution.

NATIONAL LEGAL SERVICES AUTHORITY (NALSA)

17, Apr 2020

Context:

Recently, The National Legal Services Authority (NALSA) has reported that around 11,077 under trials have been released from prisons nationwide as part of the mission to decongest jails following the COVID-19 pandemic.

About NALSA:

It has been constituted under the Legal Services Authorities Act, 1987, to provide free legal services to weaker sections of society.
It aims to ensure that opportunities for securing justice are not denied to any citizen by reasons of economic or other disabilities. The ‘Nyaya Deep’ is the official newsletter of NALSA.
It has also been providing assistance to prisoners who were eligible to be released on parole or interim bail under the relaxed norms, through its panel lawyers.

Composition of NALSA:

The Chief Justice of India shall be the Patron-in-Chief, as per section 3(2) of Legal Service Authorities Act.
The Second senior-most judge of Supreme Court of India is the Executive-Chairman.
About the functions performed by NALSA:
It organise Lok Adalat for amicable settlement of disputes.
It Identify specific categories of the marginalised and excluded groups and formulates various schemes for the implementation of preventive and strategic legal service programmes.
It provides free legal aid in civil and criminal matters for the poor and marginalised people who cannot afford the services of a lawyer in any court or tribunal.

About State Legal Services Authorities:

It has been constituted to give effect to the policies and directions of the NALSA and to give free legal services to the people and conduct Lok Adalat in the State.
It is headed by Hon’ble the Chief Justice of the respective High Court who is the Patron-in-Chief of the State Legal Services Authority.

About District Legal Services Authority:

It has been constituted to implement Legal Services Programmes in the District.
It is situated in the District Courts Complex in every District and chaired by the District Judge of the Respective District.

About Constitutional Basis of Legal System:

Article 39Aof the Constitution of India provides that State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability.
Articles 14 and 22(1)also make it obligatory for the State to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all.
Legal aid strives to ensure that constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the poor, downtrodden and weaker sections of the Society.

SUPREME COURT ORDERS TO RELEASE PRISONERS

14, Apr 2020

Why in News?

Supreme Court has recently passed orders in a suo-motu hearing on measures taken to decongest prisons, correction homes and detention centres due to the outbreak of pandemic Covid-19 outbreak.

Highlights of the Judgement:

The Bench had already passed orders to the States and the Union Territories to set up special committees in order to examine the cases of prisoners and shortlist those who could be granted bail or parole.
The Court ordered that appropriate tests for Covid-19 should be conducted on prisoners scheduled for release.
The court directed that transportation of prisoners would be done in full compliance of the rules and norms of social distancing.
In case a prisoner who has been released is suffering from coronavirus after the release, he/she shall be put in an appropriate quarantine facility by the concerned Authorities.

Judgement regarding Foreigners’ Detention Centres:

The court ordered to release prisoners or detenus who have been under detention for two years in the foreigners’ detention centres in Assam on account of the Coronavirus pandemic.
The court modified its earlier order to allow these detenus to furnish a bond of Rs. 5,000 instead of Rs. 1 lakh. The Court also asked them to furnish two Indian citizens as sureties.
But the central government has objected to their release on the grounds that they will mix with the local population again.

VIRTUAL COURTS AND WAY FORWARD

09, Apr 2020

Context:

Recently, the Supreme Court passed a slew of directions for all courts across the country to extensively use video-conferencing for judicial proceedings. A bench headed by Chief Justice S A Bobde said that the recent outbreak of the COVID-19 has necessitated social distancing and it is necessary to ensure that court premises do not contribute to the spread of coronavirus.

Key Highlights:

The Supreme court, which has restricted its functioning and is conducting hearing through video conferencing of extremely urgent matters during the lockdown period since March 25.

The bench, also comprising Justices D.Y Chandrachud and L.Nageswara Rao, made it clear that no evidence would be recorded via video-conferencing.
It said, if recording of evidence is must in the courts, then the concerned judge would ensure that distance is maintained inside the courtroom.
Attorney General K.K.Venugopal said the National Informatics Centre, NIC must look into efficient and cheap applications across the country.
The Director General of NIC told the bench that three things are required for video-conferencing — good broadband connection, good devices and conduct of people

Benefits of Virtual Courts

Cost-Effective Technique:

When compared to litigation, Virtual Courts are extremely profitable as it cuts down on the costs associated with manpower and paperwork.
It also cuts down on the vast travelling expenses during the process of resolving cases Manually.

Convenient Technique:

Virtual Courts can cover a wide range of geographical areas.
This guarantees quality service to all the people of different regions.

Better Court Management:

Virtual courts would help in the computerization of workflow management in courts.
Thus, it would help to create a better court and case management. Video conferencing facilities would be installed in every court complex.
Evidence of eyewitnesses, who are unable to attend the court can be recorded through this method.

Security of the witnesses:

In many cases, the witnesses are not able to come to the court and make their statement as the other party is too strong and scares them of the consequences. e-Courts can help in dealing with such cases

Drawbacks of Virtual Courts:

Impersonal:

Due to the virtual process of Virtual Courts, the emotional state of the disputed parties and the resultant body language and tone are not expressed to the judges.
This poses a hindrance to forming any personal relationship with the dispute resolver.
Also the judges have no control over the temper and tone of the disputed parties. This may sometimes lead to contempt of courts.

Knowledge of Computers:

The essential preliminary requirement is to have a basic knowledge of computers and operation of the internet. Digital literacy in India being significantly low, this might be a roadblock for such. Even those who do have digital literacy, lack the trust required to avail Virtual courts. Thus, there is not only ignorance about computers, but also the reluctance of the usage of them.

Breach of Confidentiality:

Often in the virtual courtroom processes, confidential information regarding the parties themselves or the parties whom they represent is revealed.
Sensitive information is particularly more crucial in corporate negotiation in which often trade secrets are revealed.
Cyberspace is prone to cybercrime. If not properly secured, confidential information can be easily leaked out, having a detrimental effect on the parties concerned.

Way Forward:

Techno Legal Expertise:
- Adequate techno-legal expertise should be imparted to both the advocates and the judges to handle these virtual courtroom proceedings.

Funds for Infrastructure:

Digital devices and internet connectivity needs physical and digital infrastructure, for which initial costs are slightly heavy.
Government should allocate adequate funds to ensure provisioning of these.

Cybersecurity and Confidentiality:

Key ingredient to induce trust among the litigants is by providing security to them and their valuable data.
Cybersecurity should be an important component of virtual courtroom procedures.

DISPUTE BETWEEN KARNATAKA AND KERALA ON HIGHWAY BLOCKADE

07, Apr 2020

Why in News?

Karnataka has refused to lift the blockade despite the Supreme Court (SC) has asked the governments of Kerala and Karnataka to amicably settle the dispute over the closure of roads linking Kasaragod district (Kerala) to Mangaluru (Karnataka).

Highlights of the SC Judgement:

On Kerala High Court’s Order: The bench did not stay the Kerala High Court order but asked the states not to precipitate matters.
Centre Mediation:The Supreme Court asked the Centre to discuss the matter with the states and formulate parameters for passage of patients for urgent medical treatment.

Kerala High Court’s Order:

The Kerala High Court had directed the Centre to ensure that blockades put up by Karnataka on national highways connecting it to Kerala are removed forthwith in order to facilitate free movement of vehicles carrying people for urgent medical treatment between the two states.
The Kerala HC asked the Union government to intervene as the arterial roads that connect Mangalore to Kasaragod are part of the national highway network. Hence, it is the duty of the central government to ensure that roads are blockade- free.
Denial of health services amounts to infringement of right to life under Article 21 and also affects the right to freedom of movement under Article 19(1) (d) of the Constitution.

Court’s Territorial Jurisdiction:

Before the High Court Order, Karnataka contended that the court would be exceeding its territorial jurisdiction if it issues any direction.
But the court rejected this and said that when a High Court of a state finds and declares the actions of the government of another State to be illegal and unconstitutional, the said state government would be obliged to defer to the said declaration of law by a Constitutional Court of this country, notwithstanding that the said court is situated beyond the territorial limits of the said state.

The Court held that the Karnataka government cannot therefore be heard to contend that it is not obliged to respect the fundamental right of a citizen who resides outside its territorial limits.

RESTRICTIONS ON COURT HEARINGS LAWFUL, SAYS SUPREME COURT

07, Apr 2020

Why in News?

The Supreme Court recently deemed all restrictions imposed on people from entering, attending or taking part in court hearings as lawful in the wake of the COVID-19 pandemic.

Highlights:

The court said that restrictions were in tune with the social distancing norms and best public health practices advocated to contain the contagion.
Invoking its extraordinary Constitutional powers: The court invoked its extraordinary Constitutional powers under Article 142 to step away from the convention of open court hearings. The open court system ensures transparency in administration of justice.

Videoconferencing:

The apex court bench assembled to suo motu streamline the videoconferencing guidelines for courts.
In a series of directions, the apex court allowed the High Courts to decide the modalities for the temporary transition to the use of videoconferencing technologies in their respective States.
District courts in each State would adopt the mode of videoconferencing prescribed by the respective High Courts.
Helplines would be set up to receive and rectify technical complaints.

Article 142 of the Constitution:

Article 142 provide a unique power to the Supreme Court, to do “complete justice” between the parties, i.e., where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would befit the facts of the case.
Article 142(1) states that “The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe”.

SUPREME COURT INVOKES SPECIAL POWERS IN DEFECTION CASE

19, Mar 2020

Why in News?

Recently, the Supreme Court invoked its special powers under Article 142 of the Constitution to remove a minister belonging to Manipur Cabinet.

Highlights of the Judgement:

The Supreme Court removed a minister from the state cabinet and restrained him “from entering the Legislative Assembly till further orders”.
It has to be notes that a disqualification petition against the minister was pending before the Speaker since 2017 but the Speaker failed to take the decision within a reasonable time period.
The Speaker even failed to take any decision within the stipulated time period of 4 weeks as provided by the Supreme Court in the earlier order passed in the month of January 2020.

Invoking Art 142:

Article 212of the Constitution bars courts from inquiring into proceedings of the Legislature. In this case, however, prompted by the fact that the Speaker’s conduct has been called into question on several occasions, the Court said it was “constrained” to invoke the court’s extraordinary powers under Article 142 of the Constitution.
Article 142: It provides discretionary power to the Supreme Court as it states that the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.

Previous Court Judgements regarding Anti-defection Laws:

The court in general said that “the Speaker, in acting as a Tribunal under the Tenth Schedule, is bound to decide disqualification petitions within a reasonable period”, which “will depend on the facts of each case.”
The Supreme Court also held that disqualification petitions under the tenth schedule should be adjudicated by a mechanism outside Parliament or Legislative Assemblies.
The Court has suggested a permanent tribunal headed by a retired Supreme Court judge or a former High Court Chief Justice as a new mechanism. However, this would require an amendment to the Constitution.

Currently, disqualification of members of a House/Assembly is referred to the Speaker of the House/Assembly.
Rationale behind Court’s suggestion was to ensure that such disputes are decided both swiftly and impartially, thus giving real teeth to the provisions contained in the Tenth Schedule.

About Tenth Schedule:

The Anti-Defection Law was passed in 1985 through the 52nd amendment to the Constitution. It added the Tenth Schedule to the Indian Constitution. The main intent of the law was to combat political defections.
According to it, a member of a House belonging to any political party becomes disqualified for being a member of the House, if

1.he voluntarily gives up his membership of such political party; or
2.he votes or abstains from voting in such House contrary to any direction issued by his political party without obtaining prior permission of such party and such act has not been condoned by the party within 15 days.

Powers of Speaker with regard to Anti-Defection Law:

Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.
After the Kihoto Hollohan case (1993), the Supreme Court declared that the decision of the presiding officer is not final and can be questioned in any court. It is subject to judicial review on the grounds of malafide, perversity, etc.

FOREIGNERS TRIBUNALS

14, Mar 2020

Context:

Recently, Amnesty International has raised allegations over the functioning of the Foreigners Tribunals (FTs) in Assam.
It has asserted that the Supreme Court and Gauhati High Court had enabled the FTs to create a statelessness crisis in Assam, in a report titled ‘Designed to Exclude’.

Amnesty International:

It is an international Non-Governmental Organization (NGO) founded in London on 1961
It seeks to publicize violations by governments and other entities of rights recognized in the Universal Declaration of Human Rights (1948), especially freedom of speech and of conscience and the right against torture.
It also works with intergovernmental human rights bodies to expand and enforce human rights protections in international law.
In 1977 AI was awarded the Nobel Prize for Peace.

About:

The organization has observed that the FTs that determined the paramount right to citizenship in Assam were often dismissive, used derogatory language, controlled their own procedures and applied them in arbitrary ways.
It has also called for a review of the existing legislative regime governing the determination of nationality in India.

FTs – Assam:

It is a quasi-judicial bodies, to determine if a person staying illegally is a “foreigner” or not.
Every individual, whose name does not figure in the final National Register of Citizens (NRC), can represent his/her case in front of the appellate authority i.e. Foreigners Tribunals (FT).
It is set up in Assam, specifically to handle the cases of 19.06 lakh people left out of the updated NRC.
Under the provisions of Foreigners Act 1946 and Foreigners (Tribunals) Order 1964, only Foreigners Tribunals are empowered to declare a person as a foreigner.

FTs- Member:

Its members are appointed under the Foreigners Tribunal Act, 1941, and Foreigners Tribunal Order, 1984, as per the guidelines issued by the government from time to time.
The Members can be:
- a retired judicial officer of the Assam Judicial Service,
- a retired civil servant not below the rank of secretary and additional secretary with judicial experience, or
- a practising advocate not below the age of 35 years and with at least seven years of practice.
- The member also required to have a fair knowledge of the official languages of Assam (Assamese, Bengali, Bodo and English) as well as be conversant with the historical background to the foreigners’ issue.

REMOVAL OF CONTROVERSIAL ‘NAME AND SHAME’ HOARDINGS

11, Mar 2020

Why in News?

Allahabad High Court has directed the Lucknow administration to remove forthwith the controversial ‘name and shame’ hoardings of those arrested during protests against the Citizenship (Amendment) Act.

What is the Issue?

The Allahabad High Court had taken Suo motu notice of this act on which the police put up several hoardings across Lucknow identifying those accused of violence during the protests against the Citizenship (Amendment) Act in December triggering those named to fear for their safety.

What are the Observations Made by the Court?

The action of the State is nothing but an unwarranted interference in privacy of people. The same hence, is in violation of Article 21 of the Constitution of India.
The placement of personal data of selected persons “reflects colourable exercise of powers” by the government.
There are certain provisions empowering the investigating agencies or other Executives to take picture of accused for the purpose of their identification and record but that too is not open for publication. The only time these photographs be published is to have assistance in the apprehension of a fugitive from justice.
No power is available in the Code of Criminal Procedure, 1973 to police or the Executive to display personal records of a person to public at large.
On the issue of court taking the case Suo motu, it said “where there is gross negligence on part of public authorities and government, where the law is disobeyed and the public is put to suffering and where the precious values of the constitution are subjected to injuries, a constitutional court can very well take notice of that at its own.”

How the Administration Defended its move?

While accepting absence of any statute permitting executive authorities to put such banners, the government had opposed the petition by submitting that the object of displaying personal details of the individuals “is to deter the mischief mongers from causing damage to public and private property.”
The State has also questioned the territorial jurisdiction of the court in Allahabad and argued that the court “erred in invoking public interest jurisdiction in the instant matter, that being available to under privileged section of the society only.

CENTRE CANNOT BRAND ORGANISATIONS ‘POLITICAL’, SAYS SUPREME COURT

09, Mar 2020

Why in News?

The Supreme Court recently held that the central government cannot brand an organisation political and deprive it of its right to receive foreign funds for using legitimate forms of dissent to aid a Public Cause.

Background:

This judgement comes in the background of a petition filed by the Indian Social Action Forum (INSAF) challenging certain provisions of the Foreign Contribution Regulation Act (FCRA), 2010 and the Foreign Contribution (Regulation) Rules of 2011.

Issues with the FCRA Act:

The FCRA 2010 prohibited acceptance and utilisation of foreign contribution or foreign hospitality for any activities detrimental to the national interest.
1.Unbridled Powers to the Centre:

But both the Act and the rules confer the Centre with ‘unguided and uncanalised power’ to brand organisations political and shut down their access to foreign funds.
Section 5(1) of the FCRA was challenged for being vague as it allowed the Centre to decide freely whether a seemingly non-political organisation was actually political in nature. The Court said that the provision was expansive and not vague.

2.No Proper Grievance Addressal:

Section 5(4) of the FCRA was also questioned as it did not exactly identify the authority before which an organisation could represent its grievance. This contention was dismissed by the apex court.

3.Activities which are classified as “Political” in Nature

Various clauses of Rule 3 of the 2011 Rules were also challenged. This provision identified the various types of ‘political’ activities for which/organisations whose foreign funding could be stopped by the Government.

Highlights of the Judgement:

SC observed that an organisation, which supports the cause of a group of citizens agitating for their rights without a political goal or objective, cannot be penalised by being declared as an organisation of a political nature.
However, foreign funding could be stopped if an organisation took recourse to these forms of protest to score a political goal.
Organisations with political objectives in their memorandum of association or bye-laws cannot be permitted access to foreign funds because of their clear political nature.

Justifications behind the Move:

A prohibition from receiving direct or indirect foreign aid ensures that the values of a sovereign democratic republic are protected.
It is to make sure that the administration is not influenced by foreign-funded political organisations.
Foreign funding can continue for organisations of farmers, workers, students, youth based on caste, community, religion, language, etc as long as they work for the social and political welfare of society and not to further political interests.

COURT DOCUMENTS ACCESSIBILITY TO THIRD-PARTY

06, Mar 2020

Why in News?

The Supreme Court has recently ruled that court documents such as copies of judgments and pleadings can now be obtained by third-parties or those not party to a case.
The significance of the judgement is that it comes within months after a five-judge bench of SC opened the office of the Chief Justice of India to scrutiny under the RTI Act.

Highlights of the Judgement:

The information will be only available after the court rules permit it and not under the Right to Information (RTI) Act, 2005.
The judgement has upheld the Rule 151 of Gujarat High Court Rules, which allows access to certified copies of judgments, orders and pleadings to a third-party, or those not party to a case (Only under the order of an officer of the court).
High courts of Bombay, Himachal Pradesh, Karnataka, Madras etc have similar provisions.
The bench held that the High Court holds the information as a trustee for the litigants in order to adjudicate upon the matter and administer justice.
Third parties should not be permitted to have open and easy access to such personal information of the litigants or information given by the government in the proceedings because there would be a misuse of the court process and the information to an Unmanageable Level.

Means to obtain Information:

According to the rules, litigants are entitled to receive copies of documents/judgments, etc on filing of an application with prescribed court fees stamp.
Third parties are not given copies of judgments and other documents without the assistant registrar’s order.
The registrar, on being satisfied about the reasonable cause for seeking the information/certified copies of the documents, allows access to the documents.

SUPREME COURT RULING ON CRYPTOCURRENCY

05, Mar 2020

Why in News?

The Supreme Court set aside a ban by the Reserve Bank of India (RBI) on banks and financial institutions from dealing with virtual currency holders and Exchanges.

Highlights:

Virtual currency is the larger umbrella term for all forms of non-fiat currency being traded online. Virtual currencies are mostly created, distributed and accepted in local virtual networks.
The court held that the ban did not pass the “proportionality” test. The test of proportionality of any action by the government, the court held, must pass the test of Article 19(1)(g), which states that all citizens of the country will have the right to practise any profession, or carry on any occupation or trade and business.

Reasons for RBI to Ban Cryptocurrency:

Owing to the lack of any underlying fiat, episodes of excessive volatility in their value, and their anonymous nature which goes against global money-laundering rules.
Risks and concerns about data security and consumer protection on the one hand, and far-reaching potential impact on the effectiveness of monetary policy.
The RBI argues that owing to a significant spurt in the valuation of many virtual currencies and rapid growth in initial coin offerings, virtual currencies were not safe for use.

Cryptocurrency:

There is no globally accepted definition of what exactly is virtual currency. Some agencies have called it a method of exchange of value; others have labelled it a goods item, product or commodity.
Cryptocurrencies have an extra layer of security, in the form of encryption algorithms. Cryptographic methods are used to make the currency as well as the network on which they are being traded, secure.
Most cryptocurrencies now operate on the blockchain or distributed ledger technology, which allows everyone on the network to keep track of the transactions occurring globally. This essentially meant there would be no central regulator for virtual currencies as they would be placed in a globally visible ledger, accessible to all the users of the technology.
All users of such virtual currencies would be able to see and keep track of the transactions taking place.

CURATIVE PETITION

03, Mar 2020

Why in News?

Curative petition is the last to last resort in the line of due justice being given and the last opportunity of the unheard being heard.

Curative Petition:

A curative petition is the final and last option for the people to acquire justice as mentioned and promised by the Constitution of India.
The concept originated from the case of Rupa Ashok Hurra Vs. Ashok Hurra and others where the following question arose before the court of law- ‘whether an aggrieved person is entitled to any relief against the final judgment/order of the Supreme Court, after the dismissal of a review petition?’
The court used the Latin maxim “actus curiae neminem gravabit”, which means that an act of the court shall prejudice no one.
The maxim becomes applicable when the court is under an obligation to undo a wrong done to a party by the act of court itself.
This led to the creation of the concept of a curative petition by the Supreme Court and the reason given for such creation was preventing the abuse of the process of law and to cure the lapses in the existing system of justice.

How is Curative Petition Different?

A curative petition is a way to ask the court to review and revise their own decision even after a review petition is dismissed or used.
But, the court has been very cautious in the use of such a petition. The court clearly stated that such kind of petitions must be rare instead of regular.
To ensure it, the court in its guidelines to file the petition stated that to file such a petition a gross violation of a principle of natural justice by the court needs to be proved by the contending party, unlike other petitions.
Also to prove such violations, a senior advocate needs to certify and point out substantial grounds for the petition to be entertained.
The same would be reviewed by the three senior-most judges of the court alongside the judges who passed the judgement, and if the majority feels that there was a violation, the curative petition would be heard by the same bench.
Adding to the speciality, a curative petition is not governed by the provisions of the Limitations Act but the court made it clear that it needs to be filed within a reasonable time.

What does this mean for the Nirbhaya Convicts?

A curative petition is the last legal recourse available to the convicts.
Going by the procedure regarding pointing out substantial grounds, the lawyer of convict Vinay Sharma, has placed the argument that young age and the socio-economic background should be considered as mitigating factors.
Interestingly, the advocate challenged the reasoning given by the Supreme Court, pointing out reports and studies by law universities and National Crime Records Bureau which state that a death sentence won’t have any deterrent effect on the society, which is the reason on which the sentencing by SC was based.
With the existing media and political pressure on this case from the beginning, it’ll be interesting to see the fallout of the petition, which would, for sure, go down as one of the most landmark judgments in the history of this nation’s legal system.

H1N1 INFECTION OF SUPREME COURT JUDGES

26, Feb 2020

Why in News?

Five judges of the Supreme Court of India have been affected by Swine Flu which is caused by the H1N1 virus.

Highlights:

In order to prevent the further spread of the virus, many measures have been taken by the Ministry of Health & Family Welfare, Government of India:
The First Aid Post (FAP) of CGHS (Central Government Health Scheme) was strengthened at the Supreme Court
All the judges were provided treatment as per the protocol. Prophylactic treatment was also given to all who have come in contact with them including their family members.
All five judges were kept in home isolation. Of these, three Judges have already resumed their duty and two continue to be under home isolation/observation and are recovering.
The courtrooms and residences are being sanitised.
Awareness information regarding preventive measures was disseminated to all concerned.
H1N1 is a seasonal infection which usually occurs every year with two peaks (One in January to March and other between July and September).

Swine Flu (H1N1):

Swine influenza, also called pig influenza, swine flu, hog flu and pig flu, is an infection caused by any one of several types of swine influenza viruses. Swine influenza virus is any strain of the influenza family of viruses that is endemic in pigs.
Influenza A (H1N1) virus is the subtype of influenza A virus that is the most common cause of human influenza.
It is an orthomyxovirus that contains the glycoproteins haemagglutinin and neuraminidase. For this reason, they are described as H1N1, H1N2 etc. depending on the type of H or N antigens they express with metabolic synergy. Haemagglutinin causes red blood cells to clump together and binds the virus to the infected cell. Neuraminidase is a type of glycoside hydrolase enzyme which helps to move the virus particles through the infected cell and assist in budding from the host cells.
Some strains of H1N1 are endemic in humans and cause a small fraction of all influenza-like illness and a small fraction of all seasonal influenza. Other strains of H1N1 are endemic in pigs (swine influenza) and in birds (avian influenza).
H1N1 influenza (or swine flu) is a highly contagious acute respiratory disease of pigs caused by type A influenza virus that regularly causes outbreaks of influenza in pigs. Swine flu viruses do not normally infect humans. However, sporadic human infections with swine flu have occurred.
Most commonly, these cases occur in people with direct exposure to pigs (e.g., children near pigs at a fair or workers in the swine industry). However, there have been cases of human-to-human spread of swine flu.

JUDICIAL INDEPENDENCE

25, Feb 2020

Why in News?

One of the Supreme Court Judge’s public praise of the Prime Minister at a public forum recently has raised serious questions about the independence of the judiciary.

What does Judicial Independence Mean?

In a 1981 judgment, the Constitution Bench of the Supreme Court held that Judges should be stern stuff and tough fire, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says: ‘Be you ever so high, the law is above you.
This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community.
It is this principle of independence of the judiciary which we must keep in mind while interpreting the relevant provisions of the Constitution.”

What are the constitutional provisions that ensure Judicial Independence?

Security of Tenure:

Once appointed, they continue to remain in office till they reach the age of retirement which is 65 years in the case of judges of Supreme Court (Art. 124(2)) and 62 years in the case of judges of the High Courts (Art. 217(1)).
They cannot be removed from the office except by an order of the President and that too on the ground of proven misbehavior and incapacity.
A resolution has also to be accepted to that effect by a majority of total membership of each House of Parliament and also by a majority of no less than two third of the members of the house present and voting.
Procedure is so complicated that there has been no case of the removal of a Judge of Supreme Court or High Court under this provision.

Salaries and Allowances:

The salaries and allowances of the judges is also a factor which makes the judges independent as their salaries and allowances are fixed and are not subject to a vote of the legislature.
They are charged on the Consolidated Fund of India in case of Supreme Court judges and the Consolidated Fund of state in the case of High Court judges.
Their emoluments cannot be altered to their disadvantage (Art. 125(2)) except in the event of grave financial emergency.

Powers and Jurisdiction of Supreme Court:

Parliament can only add to the powers and jurisdiction of the Supreme Court but cannot curtail them. In the civil cases, Parliament may change the pecuniary limit for the appeals to the Supreme Court.
Parliament may enhance the appellate jurisdiction of the Supreme Court.
It may confer the supplementary powers on the Supreme Court to enable it work more effectively.
It may confer power to issue directions, orders or writs for any purpose other than those mentioned in Art. 32. Powers of the Supreme Court cannot be taken away.

Making Judiciary Independent:

No discussion on conduct of Judge in State Legislature / Parliament: Art. 211 provide that there shall be no discussion in the legislature of the state with respect to the conduct of any judge of Supreme Court or of a High Court in the discharge of his duties.
A similar provision is made in Art. 121 which lay down that no discussion shall take place in Parliament with respect to the conduct of the judge of Supreme Court or High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the judge.

Power to Punish for Contempt:

Both the Supreme Court and the High Court have the power to punish any person for their contempt.
129 provide that the Supreme Court shall have the power to punish for contempt of itself. Likewise, Art. 215 lays down that every High Court shall have the power to punish for contempt of itself.

Separation of the Judiciary from the Executive:

Article 50 contains one of the Directive Principles of State Policy and lies down that the state shall take steps to separate the judiciary from the executive in the public services of the state.
The object behind the Directive Principle is to secure the independence of the judiciary from the executive.
50 says that there shall be a separate judicial service free from executive control.

Why Judicial Independence is needed?

The judicial independence ensures public confidence as an institute of the last resort where justice will be served despite any opposition and Influence.
People place high credibility and trust in the judiciary to get justice in case of any kind of misconduct by the executive.
The latter clause and confidence will be meaningless if executive interference is allowed into the process of judicial proceedings as well as judicial bias over the executive.

CURATIVE PETITION

21, Feb 2020

Context:

Curative Petition is often mentioned in news regarding various cases of Supreme Court.

Origin:

The concept of the curative petition was first evolved by the Supreme Court of India in Rupa Ashok Hurra vs. Ashok Hurra and another case (2002) on the question whether an aggrieved person is entitled to any relief against the final judgement/order of the Supreme Court, even after the Dismissal of a Review Petition.

What is their objective?

Its objectives are two folds – avoid miscarriage of justice and to prevent abuse of process.

Is there Any Constitutional Backing?

The concept of the curative petition is supported by Article 137 of the Indian Constitution.
It provides that in the matter of laws and rules made under Article 145,the Supreme Court has the power to review any judgement pronounced (or order made) by it.
Such a petition needs to be filed within 30 days from the date of judgement or order.

What is the Procedure?

A curative petition may be filed after a review plea against the final conviction is dismissed.
It can be entertained if the petitioner establishes that there was a violation of the principles of natural justice, and that he was not heard by the court before passing an order.
It must be rare rather than regular.
A curative petition must be first circulated to a Bench of the three senior-most judges, and the judges who passed the concerned judgment, if available. Only when a majority of the judges conclude that the matter needs hearing should it be listed before the same Bench.
The Bench at any stage of consideration of the curative petition can ask a senior counsel to assist it as amicus curiae (Friend of the court).
A curative petition is usually decided by judges in the chamber unless a specific request for an open-court hearing is allowed.

What are the grounds for Rejection?

In the event of the Bench holding at any stage that the petition is without any merit, it may impose a penalty on the petitioner.

NATIONAL JUDICIAL PAY COMMISSION

08, Feb 2020

Why in News?

The Second National Judicial Pay Commission has filed its report covering the subject of Pay, Pension and Allowances in the Supreme Court.

Second National Judicial Pay Commission:

The Commission is headed by former Supreme Court judge P V Reddy.
It was set up on the directions of the apex court in May 2017 during the hearing of the All India Judges Association case.

Key Recommendations:

Pay:
- It has recommended the adoption of Pay Matrix which has been drawn up by applying the multiplier of 2.81 to the existing pay, commensurate with the percentage of increase of pay of High Court Judges.
- The highest pay which a District Judge (STS) will get, is Rs.2,24,100/-.
Pension:
- Pension at 50% of last drawn pay worked out on the basis of proposed revised pay scales is recommended w. e. f. 1-1-2016. The family pension will be 30% of the last drawn pay.
- Recommendation has been made to discontinue the New Pension Scheme (NPS) which is being applied to those entering service during or after 2004. The old pension system, which is more beneficial to be revived.
Allowances:
- The existing allowances have been suitably increased and certain new features have been added. However, the CCA is proposed to be discontinued.
- Certain new allowances viz. children education allowance, home orderly allowance, transport allowance in lieu of pool car facility, has been proposed.

GRAM NYAYALAYAS ACT, 2008

06, Feb 2020

Why in News?

The Supreme Court has directed the states, which are yet to come out with notifications for establishing ‘Gram Nyayalayas’ with a specific time period.

About Gram Nyayalayas:

Gram Nyayalayas or village courts are established under the Gram Nyayalayas Act, 2008 for speedy and easy access to justice system in the rural areas of India.
The Act came into force from 2 October 2009.
The Gram Nyayalayas are presided over by a Nyayadhikari,who will have the same power, enjoy same salary and benefits of a Judicial Magistrate of First Class.
Such Nyayadhikari are to be appointed by the State Government in consultation with the respective High Court.

What are its Jurisdictions?

A Gram Nyayalaya have jurisdiction over an area specified by a notification by the State Government in consultation with the respective High Court.
The Court can function as a mobile court at any place within the jurisdiction of such Gram Nyayalaya, after giving wide publicity to that regards.
They have both civil and criminal jurisdictionover the offences.
The pecuniary jurisdiction of the Nyayalayas is fixed by the respective High Courts.
Gram Nyayalayas has been given power to accept certain evidences which would otherwise not be acceptable under Indian Evidence Act.

What is the Procedure followed by Gram Nyayalayas?

Gram Nyayalayas can follow special procedures in civil matters, in a manner it deem just and reasonable in the interest of Justice.
Gram Nyayalayas allow for conciliation of the dispute and settlement of the same in the First Instance.

Can the decision of Nyayalayas be appealed in Other Courts?

Appeal in criminal casesshall lie to the Court of Session, which shall be heard and disposed of within a period of six months from the date of filing of such appeal.
Appeal in civil casesshall lie to the District Court, which shall be heard and disposed of within a period of six months from the date of filing of the appeal.

What is the Issue?

So far only 11 states have taken steps to notify Gram Nyayalayas. Several states have issued notifications for establishing ‘Gram Nyayalayas’ but all of them were not functioning except in Kerala, Maharashtra and Rajasthan.
Only 208 ‘Gram Nyayalayas’ are functioning in the country as against 2,500 estimated to be required by the 12^thfive-year plan.

Why Gram Nyayalayas are Essential?

The setting up of Gram Nyayalayas is considered as an important measure to reduce arrears and is a part of the judicial reforms.
It is estimated that Gram Nyayalayas can reduce around 50% of the pendency of cases in subordinate courts and can take care of the new litigations which will be disposed within six months.

MERCY PETITION

31, Jan 2020

Why in News?

The Supreme Court reserved its verdict on a petition by December 16, 2012 gangrape-murder convict Mukesh Kumar Singh, who had challenged the dismissal of his mercy plea by President Ram Nath Kovind.

Highlights:

The case dates back to December 16, 2012, when a 23-year-old woman was gangraped and assaulted inside a moving bus in South Delhi by six persons, before being thrown out on the road. She died on December 29, 2012, at a hospital in Singapore.

President’s Clemency Powers:

- Under the Constitution of India (Article 72), the President of India can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment. A similar and parallel power vests in the governors of each state under
- Article 161.
- The pardoning power of the president is not absolute. It is governed by the advice of the Council of Ministers. This has not been discussed by the constitution but is the practical truth.
- Both the President and Governor are bound by the advice of their respective Councils of Ministers and hence the exercise of this power is of an executive character. It is therefore subject to Judicial Review as held by the Supreme Court of India in the case of Maru Ram v. Union of India (1980). It was subsequently confirmed by Kehar Singh v. Union of India [1988].
- In the case of Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors [2006] , Supreme Court, it was held that clemency is subject to judicial review and that it cannot be dispensed as a privilege or act of grace.
- There are five different types of pardoning which are mandated by law.
  - Pardon:means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
  - Commutation:means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
  - Reprieve:means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
  - Respite:means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
  - Remission:means changing the quantum of the punishment without changing its nature, for example reducing twenty year rigorous imprisonment to ten years.

These powers are Applicable:
- In all cases where the punishment or sentence is by a court martial;
- In all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
- In all cases where the sentence is a sentence of death.

FAST TRACK SPECIAL COURTS FOR SPEEDY DISPOSAL OF RAPE AND POCSO ACT CASES

10, Jan 2020

Why in News?

1023 Fast Track Special Courts will be set up for Speedy disposal of Rape and POCSO Act Cases.

Highlights:

The offences of rape and gang rape of women and children require effective deterrence through fast and time-bound completion of trials relating to sexual offences.
To bring out more stringent provisions and expeditious trial and disposal of such cases, the Union of India enacted the Criminal Law (Amendment) Act, 2018.
The Criminal Law (Amendment), Act 2013 was enacted for effective deterrence against sexual offences. This widened the definition of rape and made punishment more stringent.
Further, the Criminal Law (Amendment) Act, 2018 was enacted to prescribe even more stringent penal provisions including death penalty for the rape of a girl below the age of 12 years. The Act also, among other things, mandates the completion of investigation and trials within 2 months each.
The government has taken up the work of setting up of Fast Track Special Courts (FTSCs) as a part of the National Mission for Safety of Women (NMSW).
The government has planned a series of measures to deal with women safety on mission mode and will make a comprehensive programme.
The NMSW is going to cover all aspects from free medical care to legal aid to the victims of sexual assault by engaging public prosecutors in states and setting up of nearly 1,023 fast track courts for Fast Judgements.

MAHARASHTRA TOPS IN JUSTICE DELIVERY

08, Nov 2019

Why in News?

According to the India Justice Report 2019, Maharashtra has topped the list in the overall first-ever ranking of Indian States on justice delivery.

About:

The India Justice Report 2019, commissioned by Tata Trusts, was prepared by groups like Centre for Social Justice, Common Cause, Commonwealth Human Rights Initiative, DAKSH, Tata Institute of Social Sciences – Prayas and Vidhi Centre for Legal Policy.
The report has been prepared based on publicly available data of different government entities on the four pillars of justice delivery — police, judiciary, prisons and legal aid.
Maharashtra has topped the list of 18 large-medium States in the overall first-ever ranking of Indian States on justice delivery, followed by Kerala, Tamil Nadu, Punjab and Haryana.
In this category, Jharkhand, Bihar and Uttar Pradesh are at the bottom, while among the list of seven smaller States, Goa leads the group.

Highlights of the Report:

The report highlights the fact that even the best performing States scored less than 60% in their performance on capacity across the police, judiciary, prisons and legal aid.
The country has about 18,200 judges with about 23% sanctioned posts vacant, notes the report, adding that women are poorly represented in these pillars, constituting just 7% of the police.
Prisons are over-occupied at 114%, where 68% are under trials awaiting investigation, inquiry or trial.
Regarding budgets, most States are not able to fully utilise the funds given to them by the Centre, while the increase in spending on the police, prisons and judiciary does not keep pace with the overall increase in State expenditure, the report said.

Policing:

The study took several factors to assess the police system in the states, ranging from modernisation, inducing women, diversity, budgeting, human resource planning and infrastructure.
On this front, the best score was achieved by Tamil Nadu – 6.49. UP received a score of 2.98, whereas Bihar got 3.77. UP fared poor in terms of budgeting, spending on police per person, vacancies and diversity.

Prisons:

This parameter was assessed on various factors ranging from overcrowding, inclusion of women staff, adequate human resources, budgeting, infrastructure, etc.
Jharkhand fared the worst with a score of 3.46. It was followed by Uttarakhand (3.72), Punjab (4.35), Andhra Pradesh (4.35) and UP (4.42). Surprisingly, Bihar stood at number six with a score of 5.61. The best in this regard was Kerala with a score of 7.18.

Judiciary:

This parameter was assessed on availability of judges, clearance of cases, spending on judiciary, etc.
Bihar, with a score of 2.41, fared the worst in this regard. It was followed by UP (3.7), Karnataka (3.76), Uttarakhand (4.17) and Jharkhand (4.3). Tamil Nadu again featured on the top in terms of judiciary with a score of 6.99. It was followed by Punjab (6.57), Haryana (6.23) and Maharashtra (5.96).
On an average, Bihar saw a bleak growth in expenditure on judiciary in comparison to total spending. From 2011 to 2016, the state expenditure rose by 17.8 per cent; however, expenditure on judiciary rose by only 8 per cent.

Legal Aid:

The report also highlighted the importance of legal aid.
It said that almost 80 per cent of India’s 1.25-billion populations are eligible for free legal aid, but only 15 million people have availed it since 1995.

NEW FAST-TRACK COURTS TO CONDUCT SPEEDY TRIAL OF SEXUAL OFFENCES

16, Sep 2019

Why in News?

India will soon have 1,023 new fast-track special courts for speedy trial of over 1.66 lakh pending cases of crime against women and children. The proposal has been sent by the Union government, which estimates that each of these special courts is likely to dispose of at least 165 such cases per year.

Background:

The Supreme Court has directed the Centre to set up special courts in each district across the country that have over a 100 cases of child abuse and sexual assault pending trial under the Protection of Children from Sexual Offences (POCSO) Act.

Jurisdiction of The Court:

According to the Department of Justice under Union Law Ministry, out of the 1,023 fast-track special courts (FTSCs), 389 courts, according to a Supreme Court direction, will exclusively handle cases registered under Protection of Children from Sexual Offences (POCSO) Act.The remaining 634 FTSCs will deal with either rape or both rape and POCSO Act cases depending upon the pendency and requirement. It is expected that each fast-track special court will dispose 41-42 cases each quarter.

Key Facts About the Pendency:

According to official data with the Department of Justice, a total of 1,66,882 cases of rape and those under POCSO Act are pending trial in various courts in the country.
There are 389 districts in the country where the number of pending cases under the POCSO Act exceeds 100.Therefore, as per the apex court directives, each such district will have one exclusive POCSO court, which will try no other cases, the note said.

Need for Special Courts:

Present Slow pace of action on protection of children from sexual predators. As per available data, number of victims compensated under Pocso were 3% in 2015, 4% in 2016 and 5% in 2017. Around 1.5 lakh cases are pending trial before 670 designated courts.
Though the Act mandates trial to be completed in one year, the deadline is impossible to achieve as each designated trial judge is saddled with a few hundred cases in addition to the trial of other cases.

Guidelines by The SC for Setting up of Special Courts:

1.Funding: Such courts will be funded by the central government. The fund will not only take care of the appointment of the presiding officer but also appointments of support persons, special public prosecutors, court staff and infrastructure, including creation of child-friendly environment and vulnerable witness court rooms.
2.Awareness: WCD ministry shall facilitate screening of “short clips intended to spread awareness of the subject in general, namely, prevention of child abuse and prosecution of crimes against children, in every movie hall and could also be transmitted by various television channels at regular intervals.
3.A Child Helpline Number should also be displayed in such clips and at schools and other public places.

SUPREME COURT (NUMBER OF JUDGES) AMENDMENT BILL, 2019

15, Aug 2019

Context:

President Ram Nath Kovind gave his assent to the Supreme Court (Number of Judges) Amendment Bill, which will increase the number of Supreme Court judges from 30 to 33.

Constitution on Supreme Court Judges:

The organisation, independence, jurisdiction, powers and functions of the Supreme Court are provided in articles 124 to 147 in Part V of the Constitution of India.

Number of Judges:

Since February 2009, Supreme Court of India has total sanctioned strength 31 judges including the Chief Justice. The original constitution had fixed sanctioned strength of the court at 8 and left the matter to parliament to increase the number of judges as needed by making a law.

Pending Cases:

11,59,331 cases are pending in the top court.

Features:

The Act fixes the maximum number of judges in the Supreme Court at 30 judges (excluding the Chief Justice of India). The Bill increases this number from 30 to 33.
With no vacancy, the present strength of the apex court is 31, including the chief justice of India.. After the law comes into force, the sanctioned strength of SC will be 33, besides the CJI.
The move to increase the strength of judges by 3 or 10 per cent comes against the backdrop of rising cases in the top court which stand at nearly 60,000.

Background:

The Constitution makers envisioned that the Supreme Court would play a dual role:
- As an appellate court, and
- As a court with original jurisdiction over Centre-State disputes, cases involving substantial questions of law and matters of constitutional law.
But only a small fraction of admitted cases are filed under the court’s original jurisdiction.
It is appeals filed under special leave jurisdiction – exercised at the judges’ discretion – that overwhelm the Supreme Court.
This is acknowledged in the Bill’s statement of objects and reasons, which notes that the number of appeals filed in the Supreme Court has increased, necessitating an increase in its strength.

US Example:

The Supreme Court need not admit every appeal. But it often does. One study found that in 2014, it admitted approximately 40% of the 35,000-odd appeals filed.
Contrast this, for instance, with the US Supreme Court – eight judges in all – which receives approximately 7,000-8,000 petitions appealing a lower court’s decision. It hears oral argument in about 80 cases.
The Indian Supreme Court’s openness to appeals is best explained by its desire to correct as many injustices as possible, no matter how small.
Supreme Court judges are drawn almost exclusively from the High Courts, which function primarily as appellate courts.
The average Supreme Court judge has extensive experience in error correction – the key function of an appellate judge – rather than in adjudicating constitutional law questions. Given their experience, Supreme Court judges’ cognitive bias towards error correction is unsurprising.
But in reaching out to correct small injustices, the Supreme Court is doing a greater injustice.Justice PN Bhagwati, former Chief Justice of India, articulated this sentiment powerfully in one of his judgments. Acknowledging the agonising decisions that our judges make every day, he said,
“Sometimes, we judges feel that when a case comes before us and we find that injustice has been done, how can we shut our eyes to it.”
But he continued, “the answer to this anguished query is that the judges of the apex court may not shut their eyes to injustice but they must equally not keep their eyes too wide open, otherwise the apex court would not be able to perform the high and noble role which it was intended to perform according to the faith of the Constitution makers.”

A Growing Bench:

Justice Bhagwati’s clarity notwithstanding, the Supreme Court, like the government, is prey to the misconception that case backlog and delay arise from having too few judges.
Successive Chief Justices of India have endorsed expanding the judiciary as the primary solution.
Thus, the strength of the Supreme Court – which was originally 10 – was increased to 13, then 17, 25, and finally 30. But the judicial backlog has only increased.
In March 2007, shortly before the strength of the court was increased from 25 to 30, close to 42,000 cases were pending before it. In the decade since, the backlog has increased by around 20,000 cases. In other words, more cases were admitted than resolved.
If we want our judges to judge better, the government must do more than increase the strength of the Supreme Court.
At a minimum, it must develop institutional mechanisms to collect, track and publish detailed statistics on cases filed in the Supreme Court – including the number and types of appeals admitted by each judge – to inject some transparency into its appellate function.

Way Forward:

For far too long, the lack of adequate data on the Supreme Court’s functioning has scuttled opportunities for introspection and critique.
And our judges must evolve a coordinated response to the high rate of admission of appeals.
Having some, but not all judges, move in the direction of admitting fewer cases would be a Pyrrhic victory, making for an inconsistent, and ultimately unjust, Supreme Court.
It is time that the Supreme Court moved closer to the difficult balance that Justice Bhagwati articulated years ago. Less, as he hinted, is more.

RS CLEARS BILL TO INCREASE THE NUMBER OF JUDGES IN THE SUPREME COURT

09, Aug 2019

Why in News?

The Supreme Court (Number of Judges) Amendment Bill, 2019 was passed by the Rajya Sabha.

Highlights:

The Bill amends the Supreme Court (Number of Judges) Act, 1956.
The Act fixes the maximum number of judges in the Supreme Court at 30 judges (excluding the Chief Justice of India).
The Bill increases this number from 30 to 33.
Lok Sabha had already passed the Bill.

Number of Judges in the Supreme Court:

Initially the Constitution of India provided for a supreme court with a chief justice and 7 judges.In the early years, a full bench of the Supreme Court sat together to hear the cases presented before them.
As the work of the court increased and cases began to accumulate, parliament increased the number of Judges (including the CJI) from the original 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986 and 31 in 2009.

Eligibility to become a Judge of the Supreme Court:

Article 124 of the constitution describes the following qualifications for a Judge of the Supreme Court:
A citizen of India not exceeding 65 years age.
He must be a judge of one high court or more (continuously), for at least five years, or
An advocate there, for at least ten years, or
A distinguished jurist, in the opinion of the President.

WATER DISPUTES TRIBUNAL

02, Aug 2019

Context: Lok Sabha gave its approval to a proposal to set up a permanent tribunal to adjudicate on inter-state disputes over sharing of river waters.

Background:

Water and Constitution of India

Water is a State subject
Entry 17 of State List deals with water i.e. water supply, irrigation, canal, drainage, embankments, water storage and water power.
Entry 56 of Union List gives power to the Union Government for the regulation and development of inter-state rivers and river valleys to the extent declared by Parliament to be expedient in the public interest.

Article 262:

Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley.
Parliament may, by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint.

What Inter-State River Waters Disputes Act of 1956 says about Tribunal:

Inter-State River Waters Disputes Act of 1956 provides for setting up of a separate tribunal every time a dispute arises.

New Amendment:

The amendment will ensure the transfer of all existing water disputes to the new tribunal.
All five existing tribunals under the 1956 Act would cease to exist.

Why the Change?

The main purpose is to make the process of dispute settlement more efficient and effective.

Issues with Old Tribunals:

Under the 1956 Act, nine tribunals have so far been set up. Only four of them have given their awards.
One of these disputes, over Cauvery waters between Karnataka and Tamil Nadu, took 28 years to settle.
The Ravi and Beas Waters Tribunal was set up in April 1986 and it is still to give the final award.
The minimum a tribunal has taken to settle a dispute is seven years, by the first Krishna Water Disputes Tribunal in 1976.
Time Limit-The amendment is bringing a time limit for adjudicating the disputes. All disputes would now have to be resolved within a maximum of four-and-a-half years.

Duplication of work:

The multiplicity of tribunals has led to an increase in bureaucracy, delays, and possible duplication of work.

Money Saved:

The replacement of five existing tribunals with a permanent tribunal is likely to result in a 25 per cent reduction in staff strength, from the current 107 to 80, and a saving of Rs 4.27 crore per year.

Disputes Resolution Committee (DRC):

The current system of dispute resolution would give way to a new two-tier approach.
The states concerned would be encouraged to come to a negotiated settlement through a Disputes Resolution Committee (DRC).
Only if the DRC fails to resolve the dispute will the matter be referred to the tribunal.

How it will work?

In the existing mechanism, when states raise a dispute, the central government constitutes a tribunal. Under the current law, the tribunal has to give its award within three years, which can be extended by another two years.
In practice, tribunals have taken much longer to give their decisions. Under the new system, the Centre would set up a DRC once states raise a dispute.
The DRC would be headed by a serving or retired secretary-rank officer with experience in the water sector and would have other expert members and a representative of each state government concerned.
The DRC would try to resolve the dispute through negotiations within a year and submit a report to the Centre. This period can be extended by a maximum of six months.

If DRC fails:

If the DRC fails to settle the dispute, it would be referred to the permanent tribunal, which will have a chairperson, a vice-chairperson and a maximum of six members — three judicial and three expert members.
The chairperson would then constitute a three-member bench that would consider the DRC report before investigating on its own.
It would have to finalise its decision within two years, a period that can be extended by a maximum of one more year — adding up to a maximum of four-and-a-half years.

Judgment Validity:

The decision of the tribunal would carry the weight of an order of the Supreme Court.

Appeal:

There is no provision for appeal.
However, the Supreme Court, while hearing a civil suit in the Cauvery dispute, had said the decision of that tribunal could be challenged before it through a Special Leave Petition under Article 136 of the Constitution.

POWER OF PRESIDENT TO GRANT PARDONS

25, Jul 2019

Context: Madras High Court held that the President, while granting clemency to death convicts, can impose a condition that they should be imprisoned till their death, without being accorded the benefit of remission for any reason.

About Pardoning Power of President Under Indian Constitution:

Article 72 of the constitution empowers the President to grand pardons to persons who have been tried and convicted of any offence in all cases where the.

1. Punishment or sentence is for an offence against a union Law
2. Punishment or sentence is by a court martial (Military Court)and
3. Sentence is a sentence of death.

The Pardoning power of President is independent of the Judiciary; It is an executive power, but the President while exercising this power does not sit as a court of appeal.
The object of conferring this power on the President is two – fold;

1. To keep the door, open for correcting any judicial errors in the operation of law: and
2. To afford relief from a sentence, which the President regards as unduly harsh.

The Pardoning Power of The President Includes the Following:

Pardon: It removes both the sentence and the conviction and completely absolves the convict from all sentences, punishments and disqualifications.
Commutation: It denotes the substitution of one form of punishment for a lighter form. For Example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to a simple imprisonment.
Remission: It implies reducing the period of sentence without changing its character. For Example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year.
Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender.
Reprieve: It Implies a stay of the execution of a sentence (Especially that of death) for a temporary period. Its purpose is to enable the convict to have time to seek pardon or communication from the President.

The Supreme court examined the pardoning power of the President under different cases and laid down the following principles:

The Petitioner for mercy has no right to an oral hearing by the President.
The President can examine the evidence afresh and take a view different from the view taken by the court.
The power is to be exercised by the President on the advice of the Union Cabinet.
The President is not bound to give reasons for his order.
The President can afford relief not only from a sentence that he regards as unduly harsh but also from an evident mistake.
There is no need for the Supreme Court to lay down specific guidelines for the exercise of power by the President.
The Exercise of power by the President is not subject to judicial review except where the Presidential decision is arbitrary, irrational, mala fide or discriminatory.
Where the earlier petition for mercy has been rejected by the President, stay cannot be obtained by filling another petition.

JUVENILE JUSTICE

22, Jul 2019

Background:

In 2016, a 17-year-old was booked for the murder of his three-year-old neighbour in Mumbai.
The Mumbai city Juvenile Justice Board as well as a children’s court directed that he be tried as an adult under the Juvenile Justice (Care and Protection) Act, 2015.
Last week, the Bombay High Court set aside these orders and directed that the accused be tried as a minor, saying the Act is reformative and not retributive.

When Is A Child Tried as An Adult?

The Juvenile Justice Act of 2000 was amended in 2015 with a provision allowing for Children in Conflict with Law (CCL) to be tried as adults under certain circumstances.
The Act defines a child as someone who is under age 18. For a CCL, age on the date of the offence is the basis for determining whether he or she was a child or an adult.
The amended Act distinguishes children in the age group 16-18 as a category which can be tried as adults if they are alleged to have committed a heinous offence — one that attracts a minimum punishment of seven years. The Act does not, however, make it mandatory for all children in this age group to be tried as adults.

Why Was This Distinction Made?

The amendment was proposed by the Ministry of Women and Child Development in 2014 in the backdrop of the gang-rape of a woman inside a bus in Delhi in 2012, leading to her death. One of the offenders was a 17-year-old, which led to the Ministry proposing the amendment (although it could not have retrospectively applied to him).
The Government cited an increase in cases of offenders in that age group; child rights activists objected to the amendment. The J S Verma Committee constituted to recommend amendments also stated that it was not inclined to reduce the age of a juvenile from 18 to 16. The amendment was made in 2015.

What Was the Basis for The Order That the Accused Be Tried as A Minor?

The Bombay High Court observed: “It [trial as an adult] is not a default choice; a conscious, calibrated one. And for that, all the statutory criteria must be fulfilled.”
As per Section 15 of the JJ Act, there are three criteria that the Juvenile Justice Board in the concerned district should consider while conducting a preliminary assessment to determine whether the child should be tried as an adult or under the juvenile justice system, which prescribes a maximum term of three years in a special home.
The criteria are whether the child has the mental and physical capacity to commit such an offence; whether the child has the ability to understand its consequences; and the circumstances in which the offence was committed. If the Board finds that the child can be tried as an adult, the case is transferred to a designated children’s court, which again decides whether the Board’s decision is correct.

How Do These Criteria Relate to This Case?

Both the Juvenile Justice Board and the children’s court had relied on the probation officer’s social investigation report and a government hospital’s mental health report.
The High Court said that neither report brought out “any exceptional circumstances” to compel the juvenile to face trial as an adult. The probation officer’s report, submitted in 2018, had stated the child or his family did not have a criminal record, and called the juvenile “highly manipulative” while also noting that he had “confessed” that the victim was killed “accidentally”. It also noted that the juvenile was counselled on focusing on his studies, and that he had taken and passed his exams while lodged in the observation home.
The mental health report said the juvenile had “no psychiatric complaints at present”, was “normal”, and “suffers from no mental incapacity” to commit the offence.
The court said that while the Board had relied on these two reports, it had undertaken no independent assessment.
It said that if the Board’s criteria of evaluation were followed, “then every case becomes an open-and-shut case”. It said that only because the statute permits a child of 16 years and above to stand trial as an adult in case of heinous offence, it did not mean that all those children should be subjected to adult punishment.
One of the court’s key observations was that “essentially, the trial in the regular court is offence-oriented; in the juvenile court, it is offender-oriented. In other words, in the children’s court, societal safety and the child’s future are balanced. For an adult offender, prison is the default opinion; for a juvenile it is the last resort”.

WITNESS PROTECTION SCHEME

12, Jul 2019

Why in News?

Minister of State for Home Affairs informed about the scheme in a written reply to question in the Rajya Sabha.

Witness Protection Scheme:

Witness Protection Scheme, 2018 provides for protection of witnesses based on the threat assessment and protection measures.
It includes protection/change of identity of witnesses, their relocation, installation of security devices at the residence of witnesses, usage of specially designed Court rooms, etc.
As per Article 141/142 of the Constitution, the Witness Protection Scheme, 2018 endorsed in the said Judgment of the Supreme Court is binding on all Courts within the territory of India and enforceable in all States and Union Territories.

Other Provisions of the scheme:

Witness Protection Fund means the fund created for bearing the expenses incurred during the implementation of Witness Protection Order passed by the Competent Authority under this scheme;
Witness Protection Order means an order passed by the Competent Authority detailing the steps to be taken for ensuring the safety of witness from threats to his or his family member’s life, reputation or property. *It also includes interim order, if any passed, during the pendency of Witness Protection Application;
Witness Protection Cell means a dedicated Cell of State/UT Police or Central Police Agencies assigned the duty to implement the witness protection order. It shall be responsible for the security as per witness protection order.

Proposed Rights to be entitled to the Witness:

Right to give evidence anonymously
Right to protection from intimidation and harm
Right to be treated with dignity and compassion and respect of privacy
Right to information of the status of the investigation and prosecution of the crime
Right to secure waiting place while at Court proceedings
Right to transportation and lodging arrangements

Witness Protection Fund:

The Scheme provides for a State Witness Protection Fund for meeting the expenses of the scheme.
This fund shall be operated by the Department/Ministry of Home under State/UT Government and shall comprise of the following:
Budgetary allocation made in the Annual Budget by the State Government;
Receipt of amount of costs imposed/ ordered to be deposited by the courts/tribunals in the Witness Protection Fund;
Donations/ contributions from Philanthropist/ Charitable Institutions/ Organizations and individuals permitted by the Government.
Funds contributed under Corporate Social Responsibility.

HUMAN RIGHTS COURT IN INDIA

09, Jul 2019

Context- SC asks why the delay in setting up Human rights courts
Protection of Human Rights Act, 1993 as stated in the preamble of the Act, is the establishment of human rights courts at district level.
The creation of Human Rights Courts at the district level has a great potential to protect and realize human rights at the grassroots.
purpose of providing speedy trial of offences arising out of violation of human rights.

Provisions:

How it will Establish Court

Section 30 of the Act envisages that a state Government may, with the concurrence of the Chief Justice of the High Court, by notification, specify for each district a Court of Sessions to be a Human Rights Court to try the said offences.

Special Public Prosecutor:

Section 31 of the Act provides the State government to specify and appoint a special public prosecutor in that court.

Issues:

Vague Definition:

The Act refers to the offences arising out of violations of human rights.
But it does not define or explain the meaning of “offences arising out of violations of human rights”. It is vague.
The Act dose not give any clear indication or clarification as to what type of offences actually are to be tried by the Human Rights Courts.

The Problem is who can take cognizance of the offences.

What the Act says is in each district, one Sessions Court has to be specified for trying “offences arising out of human rights violation”.
It is silent about taking of cognizance of the offence

Conclusion:

The object of establishment of such Courts at district level is to ensure speedy disposal of cases relating to offences arising out of violation of human rights. Unless the lawmakers take note of the above anomalies and remove them by proper amendments the aim for which provisions are made for establishment of special courts will not be achieved.

Leader of opposition made Minister in Government of State.

24, Jun 2019

Context:

Rtd. High Court Judge Thipsay questions appointment of Vikhe• Patil (Leader of Opposition), Kshirsagar as ministers.
Leader of Opposition of Maharashtra has reigned from his party and joined party in government and sworn as minister

Issues:

By the Constitution (91st Amendment) Act, 2003, Clauses (1A) and (1B) were inserted in Article 164, which provide for appointment of Chief Minister and other ministers. Clause (1B) states that a member of either House of the legislature of a State, belonging to a political party, who is disqualified to be appointed as a minister for duration of the period commencing from the date of his disqualification.
‘‘Disqualification on ground of defection.
- Clause (a) of paragraph 2 is “if he has voluntarily given up his membership of such political party.

- Apart from this, Article 164(4) only permits a person to be a minister for a maximum period of six consecutive months without being a member of the legislature.

Removal of the Judge of a High Court

24, Jun 2019

Context:

In•house panel found an Allahabad High Court judge, Justice S.N. Shukla, guilty of misconduct, Chief Justice of India Ranjan Gogoi has written to Prime Minister Narendra Modi to initiate a motion for his removal.
A Judge of the High Court can be removed from office only for proven misbehaviour or incapacity and only in the same manner in which a Judge of the Supreme Court is removed. The President of India can remove a Judge of the High Court, from his office only if each house of the parliament passes a resolution by a two third majority of its members present and voting in each house requesting him to remove the judge.

Appointment of the Judges of High Courts:

As per article 217, the chief Justice of the high court is appointed by the President in consultation with the Chief justice of India as well as the Governor of the state in question. A collegium system has evolved over the years in which a Collegium headed by the CJI makes recommendation to the government for appointment of judges.

NATIONAL HUMAN RIGHTS COMMISSION (NHRC)

18, Jun 2019

It is a Statutory Body the National Human Rights Commission (NHRC) of India was established on 12 October, 1993.
It is in conformity with the Paris Principles, Section 2(1)(d) of the PHRA defines Human Rights as the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.

Composition:

NHRC comprises of a chairman and four members. The chairman should be a retired chief justice of India.
The other members should be
- One Member who is, or has been, a Judge of the Supreme Court of India
- One Member who is, or has been, the Chief Justice of a High Court
- Two Members to be appointed from among persons having knowledge of, or practical experience in, matters related to human

Members appointed by committee consist of:

Prime Minister (chairperson) Home Minister
Speaker of the Lok Sabha
Leader of the Opposition in the Lok Sabha Deputy Chairman of the Rajya Sabha Leader of the Opposition in the Rajya Sabha

Functions of NHRC:

Inquire suo motu or on a petition presented to it, by a victim, or any person on his be into complaint of violation of human rights or negligence in the prevention of such violation by a public servant.
Intervene in any proceeding involving any allegation of violation of human rights before a Court with the approval of such Court.
Visit any jail or detention places to study the living conditions of the inmates and make recommendations thereon
Review the safeguards provided by or under the constitution of any law for the time being in force for the protection of human rights and recommend measures for their effective implementation.
Review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures.
Undertake and promote research in the field of human rights.
Spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights.
Encourage the efforts of Non-Governmental organizations and institutions working in the field of human rights.
Undertake such other functions as it may consider necessary for the promotion of human rights.

PUBLIC PROCUREMENT LEGISLATION

17, Jun 2019

Context:

Supreme Court expressed its growing concern over the award of tenders being challenged in writ proceedings almost as a matter of routine.

Why:

Need the Central government must pass legislation on Public Procurement.
Nearly, 30% of GDP is contributed by this public procurement which has a fiscal significance in public policy.

Previous bills:

United Progressive Alliance introduced the Public Procurement Bill in the Lok Sabha in 2012, The National Democratic Alliance, in 2015, revamped the provisions of the earlier Bill to come up with the Public Procurement Bill, 2015
Both the bill were not passed in parliament.

Constitutional Provision:

There is absence of Any Constitutional Provision regarding such Public procurement. Reason- Article 282 gives financial autonomy in public spending for executive.

State take on Public procurement:

State public procurement is regulated by a State Act only in five states Tamil Nadu, Karnataka, Rajasthan, Andhra Pradesh and Assam.
There is absence of grievance redress mechanisms in above states.

Judiciary Stand:

Courts have imposed such stringent Self-Imposed Restrictions in the area of judicial review regarding tendered and power to interfere.

Conclusion:

Absence of Legislation would only encourage the growth of other negative aspects of public procurement.
In such a depressing legal scenario, it is no surprise that public procurement tender awards are often challenged in constitutional courts.
Passing a roboust legislation in Public procurement will Reduce Litigations in Court Regarding Procurement Help Fiscal Consolidation
Accountability in procurement. Boost MSME further.

IN JOINT FAMILY, BROTHER-IN-LAW HAS LIABILITY TO PAY MAINTENANCE TO DOMESTIC VIOLENCE VICTIM: SC

28, May 2019

Why in News:

Even the brother-in-law has a liability to pay maintenance to a victim under the Domestic Violence Act if they had lived together under the same roof in a shared household as part of a joint family at any point of time, the Supreme Court has held.

Details:

The apex court Bench interpreted what the expression ‘domestic relationship’ means under the 2005 Act. They held that the term meant a “relationship where two persons live or have lived together at any point of time in a shared household when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are members living together as a joint family”.
The court further read the term “shared household” to include “such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household”.

Domestic Violence Act

While dowry related violence or cruelty has been covered in section 498-A of the Indian Penal Code, an additional law was enacted by the parliament as Protection of Women from Domestic Violence Act of 2005 to explicitly define domestic violence in addition to dowry-related cruelty and provide maintenance, shelter, or interim finances to a woman subjected to domestic violence or harassment by an adult male.

ILLEGAL PHOTOCOPYING OF DOCUMENTS IS THEFT: SUPREME COURT

16, May 2019

Why in News:

Dishonest and temporary “removal” of original documents to take photocopies and to
further use information amounts to theft, the Supreme Court has held.

Background:

The judgment followed the principle laid down by the apex court in its earlier precedents that “to commit theft, one need not take movable property permanently out of the possession of another with the intention not to return it to him. It would satisfy the definition if he took any movable property out of the possession of another person though he intended to return it later on.”

Apex Court Verdict:

The loss need not be caused by a permanent deprivation of property but may be caused even by temporary dispossession, though the person taking it intended to restore it sooner or later. A temporary period of deprivation or dispossession of the property of another cause’s loss to the other.

Calcutta court verdict:

held that since the the first 28 documents were still in Birla’s custody, the taking away of the information contained in these documents and their temporary removal would not qualify as theft, dishonest misappropriation of property or dishonest receiving of the stolen property.

For A Full Bench: On Recommendations For Judicial Appointments

11, May 2019

Why in News:

The government and the Supreme Court collegiums disagree on recommendations for judicial appointments.

Details:

The latest concerns Jharkhand High Court Chief Justice Aniruddha Bose and Gauhati High Court Chief Justice A.S. Bopanna, who were recommended for elevation to the Supreme
The government had sought a reconsideration of the two names.
The collegium has now repeated its recommendations, emphasising that there is nothing adverse against the two judges in terms of their “conduct, competence and integrity” and that there is no reason to agree with the government. Under the present procedure, the government is now bound to accept the
The Supreme Court is keen to fill up the current
It has also recommended two more judges, Justice B.R. Gavai of the Bombay High Court and Chief Justice Surya Kant of the Himachal Pradesh High Court, for appointment to the apex court. If all these four recommendations go through, the court will have its full complement of 31
The filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for
It is time to think of a permanent, independent body to institutionalise the process.

Collegium system

Collegium system in India is the system by which the judges are appointed by the judges
only also referred to as “Judges- selecting- Judges”.
It is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court, and not by an Act of Parliament or by a provision of the Constitution.
The Supreme Court collegium is headed by the Chief Justice of India and comprises four other senior most judges of the A High Court collegium is led by its Chief Justice and four other senior most judges of that court.
Names recommended for appointment by a High Court collegium reaches the government only after approval by the CJI and the Supreme Court
The government is bound to appoint a person as a Supreme Court judge if the collegium reiterates its recommendation.

Karnataka law on Sc/St Promotion Quota upheld

11, May 2019

why in news:

The Supreme Court upheld the constitutional validity of a 2018 Karnataka law, granting reservation in promotion and consequential seniority to the Scheduled Caste and Scheduled Tribe employees in the state.

Background:

The Karnataka law grants reservation to non-IAS cadre government employees who belong to SC/ST The issue dates back to 2002 when the Karnataka government had enacted a similar law that was later upheld by a constitutional bench in 2006.
However, it was challenged in 2011 and in 2017 the apex court had said it was necessary for the government to provide material that there was “compelling necessity” for exercise of such powers that eventually resulted in 3,799 SC/ST employees, promoted earlier, to be The state government had constituted a committee under then chief secretary K.Ratna Prabha to study the backwardness of these communities. The Karnataka government took the ordinance route in August 2017 to circumvent an apex order in February earlier that year that struck down reservations on promotions to SCs/STs by the Karnataka government and had also set a deadline of three months to reverse the promotions.

Controversy:

In the Indira Sawhney case, the Supreme Court held that the “test or requirement of social and educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who indubitably fall within the expression ‘backward class of citizens

Judicial Appointment Contraversy

11, May 2019

Why in News:

Supreme Court Collegium, led by Chief Justice of India Ranjan Gogoi, recommended the names of two judges to the court and rejected the government’s disapproval of the elevation of two others.

Background:

Collegium refused the government’s request to reconsider its April 12 recommendation to elevate Jharkhand High Court and Gauhati High Court Chief Justices Aniruddha Bose and
S. Bopanna as Supreme Court judges.
The Collegium said their names were recommended after all parameters were The Collegium said there was no reason to agree with the government as there was
nothing adverse found in the two judges’ conduct, competence or integrity. Now, the government is bound to appoint Justices Bose and Bopanna to the court.

What is the Collegium System?

The Collegium System is a system under which appointments/elevation of judges/lawyers to Supreme Court and transfers of judges of High Courts and Apex Court are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court.’ There is no mention of the Collegium either in the original Constitution of India or in successive
The recommendations of the Collegium are binding on the Central Government; if the Collegium sends the names of the judges/lawyers to the government for the second

How Collegium System Works?

The Collegium sends the recommendations of the names of lawyers or judges to the Central Government. Similarly, the Central Government also sends some of its proposed names to the Collegium. The Central Government does the fact checking and investigate the names and resends the file to the Collegium.
Collegium considers the names or suggestions made by the Central Government and resends the file to the government for final approval. If the Collegium resends the same name again then the government has to give its assent to the names. But time limit is not fixed to reply. This is the reason that appointment of judges takes a long time.

AYODHA DISPUTE CASE

08, Mar 2019

The SC bench constituted a three-member panel for the mediation in ayodha dispute case.

About:

The three-member mediation panel will be headed by former SC judge Justice F M Kalifullah, members of the panel include spiritual guru Sri Sri Ravi Shankar and Senior Advocate Sriram Panchu. It asked the panel to give the progress report of the matter in four weeks and to complete the talks in eight weeks.
The mediation proceedings will be held in-camera in Faizabad, Uttar Pradesh, and will “commence within a week”.
The bench directed the state government to “forthwith” make arrangements including the venue of the mediation, place of stay of the mediators, their security and travel. While hearing arguments on the proposal for mediation, the bench had stressed the need to keep the proceedings confidential so that dialogue is not hampered by unwanted comments and controversies.
The bench said “we are of the further opinion that while the mediation proceedings are being carried out, there ought not to be any reporting of the said proceedings either in the print or in the electronic media”.
But it refrained from passing any specific order “at this stage” and left it to the mediators to pass necessary orders “in writing, if so required to restrain publication of the details of the mediation proceedings”.
The bench said the panel chairman may inform the Supreme Court Registry in case of any difficulty in carrying out the task assigned or if there was any requirement to facilitate the mediation and to conclude it at the earliest.

Background:

The suggestion for mediation had come from the bench on February 26 when it took up appeals. It said it could only decide on property and what it was looking at was “a possibility of healing relationships”.
It sought the views of the parties on invoking Section 89 of the CPC which deals with mediation.
Section 89 says that “Where it appears to the court that there exist elements of a settlement which may be to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for (¬a) arbitration; (b) conciliation; (c) judicial settlement including settlement through Lok Adalat; or (d) mediation”.

Ram Janmabhoomi-Babri Masjid land dispute case:

Following is the chronology of events in the Ram Janmabhoomi-Babri Masjid land dispute case

*1528:

Babri Masjid built by Mir Baqi, commander of Mughal emperor Babur.

*1885:

Mahant Raghubir Das files plea in Faizabad district court seeking permission to build a canopy outside the disputed Ram Janmabhoomi-Babri Masjid structure. Court rejects plea.

*1949:

Idols of Ram Lalla placed under a central dome outside the disputed structure.

*1981:

UP Sunni Central Waqf Board files suit for possession of the site.

*February 1, 1986:

Local court orders the government to open the site for Hindu worshippers.

*August 14, 1989:

Allahabad HC ordered maintenance of status quo in respect of the disputed structure.

*December 6, 1992:

Ram Janmabhoomi-Babri Masjid structure demolished.
1993

*April 3:

‘Acquisition of Certain Area at Ayodhya Act’ passed for acquisition of land by Centre in the disputed area.

*October 24, 1994:

SC says in the historic Ismail Faruqui case that a mosque was not integral to Islam.

*April 2002:

HC begins hearing on determining who owns the disputed site.

01, Mar 2019

In News

The central government defended in the Supreme Court an earlier notification enabling 10 agencies to monitor, intercept and decrypt any information generated, transmitted, received or stored in any computer.

About:

The Centre told the Supreme Court on Friday that its December 20, 2018 notification allowing 10 central agencies to snoop on people is in fact a measure to protect citizens’ privacy.
The government was responding to a petition filed by advocate ML Sharma challenging the December 20 notification as a violation of the fundamental right to privacy. In January, the Supreme Court had issued a notice to the Centre and ordered it to respond within six weeks.
According to the order, service providers, subscribers and those in charge of a computer resource will be bound to extend all technical assistance to the agencies, and failing to do so will lead to imprisonment.
After the order had led to severe criticism from several Opposition parties, the Centre clarified it had not conferred any new powers on any central security or law enforcement agency. The notification was in accordance with rules framed in 2009 under the United Progressive Alliance government, the ministry had then said.
The Centre argued that the order to monitor computers was in national interest. “Surveillance is done only in the defence of India, to maintain public order, etc that the country faced grave threats from terrorism, radicalisation, cross-border terrorism, cybercrime and drug cartels. There is a need for “speedy collection of actionable intelligence” to counter threat to national interests.
The order provided surveillance powers to only 10 central agencies. “What has been done under the December 20 order is in fact restricting the exercise of powers, removing a possible vagueness and specifying the agencies/organisations who only would have the powers to utilise the powers of section 69 of the [Information Technology] Act.
The order was to ensure that surveillance is carried out as per law, and that any interception, monitoring, decryption of computer resources is done by authorised agencies and with approval of the competent authority.
The Centre argued that the order would prevent unauthorised use of surveillance powers by any agency, individual or intermediary, and would not violate the right to privacy of citizens.

Background:

The order allows central agencies, from the Intelligence Bureau to the Central Board of Direct Taxes to the Cabinet Secretariat (RAW) to the Commissioner of Delhi Police, to intercept, monitor and de-crypt “any information” generated, transmitted, received or stored in “any computer resource”.
The order is based on Section 69 (1) of the Information Technology Act of 2000 and Rule 4 of the Information Technology 2009 Rules (Procedure and Safeguards for Interception,Monitoring and Decryption of Information) Rules, 2009.

SC on the Forest Rights Act

22, Feb 2019

Supreme Court ordered state governments to evict over 10 lakh forest-dwelling families whose claims over forestland have been rejected, a direction that will hurt some of India’s most vulnerable people.

About:

The order came in a case on the constitutional validity of the Forest Rights Act, which was passed in 2006 aiming to recognise and vest the forest rights and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for generations but whose rights could not be recorded.
The case has dragged on for over 10 years under multiple benches, with the Supreme Court yet to answer questions on constitutional validity of the law.

Three grounds:

There were at least three grounds on which the ministry could have challenged petitioners’ demand that forest claims be rejected and residents evicted.
First, the petitioners ignored that the fact that Forest Rights Act says that no one should be evicted while the process of recording their rights is underway.
Second, the order short-circuited the process laid down in the Act for those whose appeals have been rejected. Under the legisation, the government has to inform applicants why their claims have been rejected so that they can appeal the decision. Subsequently, evictions have to be carried out under the process defined by India’s forest laws.
Third, the process of recognising rights has been poorly implemented. Of the 41 lakh claims filed so far, 18 lakh have been approved, 3 lakh are still being processed and the remaining 20 lakh have been rejected.Rejection does not always mean that the applicant’s case lacks merit. For most forest dwelling communities, the process of applying for an abstract notion like rights is daunting, activists pointed out.
At the same time, states are wary of vesting forest rights since this could, among other things, complicate their ability to divert forest land for industrial activities. States have devised several strategies to reject applications.
States like Jharkhand and Himachal Pradesh have refused to accept applications by Other Traditional Forest Dwellers – which is how the Act describes people of non-tribal origin who live in or depend on forests.
Gujarat told applicants to submit, along with other evidence, satellite images of the land to which they were staking claim.

Long drawn-out case:

Even when it was being drafted, the Forest Rights Act was criticised by the Union Environment Ministry and wildlife groups like Bombay Natural History Society, Wildlife Trust of India and Wildlife First. They said the Act would encourage further encroachment on India’s already battered forestlands.
Land distribution falls under the legislative competence of state governments, so parliament could not distribute land through the Forest Rights Act.
The case picked up pace sometime in 2016, when a bench headed by J Chelameswar began hearing the petitions.
On January 29 that year, the Supreme Court said that it was obvious that vesting of rights under the Act is based “on an assertion that a claimant is in possession of a certain parcel of land” in the forests.
Therefore, it said that if the claims were rejected, the claimant was to be evicted or other action proposed by the law should follow. It asked the states to file data on the number of claims rejected and what action they had taken.
When the idea was proposed that those whose claims had been rejected should be evicted, Additional Solicitor General Narasimha shot it down, said the Supreme Court lawyer. “He asked what the court was adjudicating on,” the lawyer recalled.
The case dragged on again, with states taking their time to file affidavits. Arguments on the main petition began only in September 2016 and extended into 2017.
On March 31, 2017, the bench said that arguments of parties on parliamentary competence to enact the Act was complete but other points had to be argued. Records on the Supreme Court website show that the next significant order came in March 2018, when a new bench headed by Justice Madan B Lokur said that the data filed by the states had become outdated since two years had passed since they were put together. It asked for fresh data on rejected claims and action taken.
By December 2018, there was another change in the bench with Justice Arun Mishra leading it in place of Justice Lokur. It is this bench that delivered the February 13 order asking the states to evict lakhs of forest dwellers whose claims have been rejected.
By October last year, Narsimha had stepped down. After that, instead of creating a new legal team, the ministry left the matter to empanelled lawyers without giving them proper instructions

Sabarimala review hearing awaits Justice Malhotra’s Return

23, Jan 2019

Context:

On a batch of petitions challenging supreme court verdict on sabarimala.

Details:

CJI asks petitioners to wait till judge resumes sittings after medical leave
Chief Justice of India Ranjan Gogoi on Tuesday told petitioners seeking a review of the court’s September 28 judgment revoking the bar on women of menstrual age from entering the Sabarimala temple that a date for hearing their petitions would be fixed after consulting Justice Indu Malhotra, a member of the Bench who is currently on medical leave.
A five-judge Bench led by the Chief Justice, which was earlier scheduled to hear the review petitions on Tuesday (January 22), did not assemble as Justice Malhotra was on leave.

Oral mention:

Responding to an oral mention by advocate Mathew Nedumpara to fix a date of hearing, Justice Gogoi said that would not be possible until Justice Malhotra returns after her leave, possibly on January 30. “We will have to ask the learned judge, who is on medical leave,” Chief Justice Gogoi said, addressing Mr. Nedumpara, who represents one of the several review petitioners. “We cannot ascertain a date without asking her [Justice Malhotra],” the CJI added.
Justice Malhotra had delivered the lone dissent in the five-judge Constitution Bench’s majority judgment on September 28.
The majority judgment had declared the exclusion, solely based on the menstrual status of women, to be a smear on individual dignity. It said the bar amounted to “treating women as the children of a lesser God”.
Justice Malhotra had declared the prohibition on women aged between 10 and 50 years to be an “essential practice”.
The judge had held that imposing the court’s morality on a religion would negate the freedom to practise religion according to one’s faith and beliefs. The dissenting judgment has since then become a rallying point for the review petitioners.
Review petitions were filed by a range of persons, from the Sabarimala temple’s chief priest to individuals and Ayyappa organisations including women devotees’ bodies. They contend that ‘reform’ cannot mean rendering a religious practice out of existence on the basis of a PIL petition filed by “third parties” lacking belief in the Sabarimala deity.
Justice Malhotra’s rationale that courts should not allow “interlopers” to file PILs challenging religious practices is a common thread in the review petitions. The review petitioners have argued that the right to move the Supreme Court for violation of fundamental rights must be reserved for those whose personal rights to worship have been violated.
Entertaining PIL petitions on religious practices by third parties may invite “perils even graver for religious minorities”, some of them contend.

SC RECORDS HOW THE BAR GIRLS TOOK ON MAHARASHTRA GOVERNMENT

18, Jan 2019

Context

The 100-page judgment of the Supreme Court delivered on Thursday records for posterity how the Bharatiya Bar Girls Union of women working as dancers, singers or waitresses in bars, restaurants and beer halls challenged the might of the Maharashtra government.

Details

The women ridiculed the State’s “patriarchal notion of morality” to bring a draconian law in 2016 which stripped them of their livelihood and dignity.
The union’s challenge led the Bench of Justices A.K. Sikri and Ashok Bhushan to conclude that the State had no right to thrust its notion of morality on society.
For one, the State had claimed that bar girls were usually minors or victims of trafficking or prostitution and other forms of flesh trade. But the Bar Girls Union, represented by advocate Nikhil Nayyar, challenged the Maharashtra government to produce proof in the Supreme Court to back its claim.
On the other hand, the bar girls’ union produced research material on record to show that reality was “diagonally opposite” to what the State claimed.
‘Newer opportunities. “The bar girls have voluntarily embraced dance bars to live with dignity and earn their livelihood… it (dance performances) opened newer opportunities and the option to leave exploitative sex work…,” the judgment quoted from the research.
The union argued that bar dance was a “non-obscene performance” as held by several High Courts. It said the Maharashtra government wanted to “perpetuate a myth that dance bars pose any danger to law and order or cause disturbance to peace and tranquillity.”
The union pointed out that dance bars remained closed across the State since 2005. Then where did the government get reliable data about immoral activities in them.
“Therefore, the belief of the State Government that the working women in dance bars are involved in immoral activities such as prostitution, or that minors are being employed, are entirely baseless and irrational,” the judgment said, citing their argument.

Controversial Government Affidavit

Opposed to what the government believed, various studies indicated that many bar girls felt “greater security in the bars due to the support network among the dancers as well as the protection provided by the owners.
It was further noted that the bar owners, on the demands made by bar girls, provides
taxis and auto rickshaws for women travelling late at night. The government had forced bar owners to install CCTV cameras, especially in dance areas. The court found it a violation of their privacy.
One-fourth of the women found their income slashed by 90% after the ban. Subsequently, their health care, education and social security had dipped over the past few years. Some were pushed back into sex trade.

ENCOUNTER DEATHS IN U.P. A SERIOUS ISSUE, OBSERVES SC

15, Jan 2019

Context

The Supreme Court on Monday observed that a “very serious issue” has been raised in a petition seeking a CBI probe into 1,100 police encounters which have taken place in Uttar Pradesh under the Yogi Adityanath government.

Details:

‘Massive liquidations’

Filed by the NGO, People’s Union for Civil Liberties (PUCL), the petition termed the encounters “massive administrative liquidations.”
On Monday, a Bench led by Chief Justice of India Ranjan Gogoi adjourned the case to February 12. The court had asked the State government to first file its response to the petition way back on July 2 last year.

Open defiance: PUCL:

The PUCL has submitted that the police encounters were endorsed by the State administration in “open defiance” of human rights and civil liberties. That is, the State machinery chose to end lives instead of bringing people for trial.
“The state cannot adopt such means which are against the constitutional principles to fight with terrorism or hardened criminals. Such extra-judicial killings in the name of encounters are considered ‘state-sponsored terror’,” the petition said.
In this context, the petition refers to reported statements made by Chief Minister Adityanath like “criminals will be jailed or killed in encounters” and “everyone should be guaranteed security, but those who want to disturb peace of the society and believe in the gun, should be given the answer in the language of the gun.” The petition said the National Human Rights Commission had written to the State government in response to the Chief Minister’s statements, saying that police personnel were misusing their powers to settle scores. The Commission had said “creating an atmosphere of fear is not the correct way to deal with the crime”.
The petition, which refers extensively to reports in The Hindu on the police encounters, said facts available in the public domain show that over 1,100 encounters have taken place in the past year, wherein 49 people were killed and 370 injured.
“According to the figures given by the State of U.P. to the NHRC, in the encounters, 45 persons have died between 01.01.2017-31.03.2018. Each such encounter is required to be investigated on the basis of FIR, followed by a Magisterial Inquiry and thereafter, a criminal trial in accordance with law,” it said.

Ethical Issues involved:

Gandhiji said” An eye for an eye will make the whole world blind”. An extrajudicial killing is the killing of a person by governmental authorities without the sanction of any judicial proceeding or legal process. It is right when it is done on the pretext of self defense, national security at stake or when it involves Utilitarian Principle(consequentialism) but unethical when it is done with a targeted approach.
Various ethical issues- Rule of Law-It bypass due process of law which require that every alternative should be provided to accused.
Humanitarian-killing a person without any retaliation is nothing more than a barbaric act of killing which should come with a probe against the person who has done this gruesome act. Constitution- It is against our fundamental right which talks about a life of dignity.
Life is the most precious possession of an individual and depriving someone of it should be the exception and not the rule Eg Saurabuddin case,20 woodcutters in AP etc.,
Herd Mentality- Encounter is wrong, it is the mentality of a mob which see things through the lens of agitation than justice. Misue of Policy/slippery slope-The worry here is about breaking down the barrier between legitimate killing in self-defense or in punishment, versus the sort of illegimate killing

SC sets aside Delhi HC ruling against Monsanto

09, Jan 2019

Context:

Providing relief to agri-sector major Monsanto, the Supreme Court on Tuesday set aside a Delhi High Court (DHC) order invalidating Monsanto Technology’s patents on BT cotton seeds.

Background of the case:

A division bench DHC had earlier ruled that Monsanto could not claim patents of GM (genetically modified) cotton seeds since items like seeds, plants and animals can’t be patented under Indian laws.
Monsanto sells GM cotton seeds in India through its joint venture with Maharashtra Hybrid Seeds Co — Mahyco Monsanto Biotech (India) Ltd (MMBL).
MBBL had terminated its sub-license with Nuziveedu Seeds Ltd (NSL) in 2015 after a royalty payment dispute. The case reached court when NSL continued to sell genetically modified seeds even after its contract was terminated, with the latter seeking an ad-interim injunction. In November 2016, a single judge bench of the High Court restrained NSL from selling BT cotton seeds using the trademark of Monsanto or MMBL.
However, a division bench of the Delhi High Court had overturned this.
Now, the SC set aside a Delhi High Court Division Bench decision that held that U.S. agro major Monsanto did not have patent for its genetically modified BT cotton seed variants and had allowed it to claim registration under the Protection of Plant Varieties and Farmers’ Rights Act of 2001.

About Protection of Plant Varieties and Farmers’ Rights Act, 2001:

The Protection of Plant Variety and Farmers Right Act, 2001 (PPVFR Act) is an Act of the Parliament of India that was enacted to provide for the establishment of an effective system for protection of plant varieties, the rights of farmers and plant breeders, and to encourage the development and cultivation of new varieties of plants.
The PPV&FR Act, 2001 was enacted to grant intellectual property rights to plant breeders, researchers and farmers who have developed any new or extant plant varieties.

Review Hearing in open court Rare

01, Jan 2019

Context:

The decision of a five-judge Bench led by Chief Justice of India Ranjan Gogoi to have an open court hearing of the review petitions filed against another five-judge Constitution Bench’s Sabarimala judgment is “exceptional”, legal experts say.

Details:

The repercussions after historic Sabarimala judgment have been recollecting the events found 43 years ago in the open court review of the historic Kesavananda Bharati verdict in November 1975.
The Sabarimala judgment, which struck down a ban on women of menstruating age from undertaking the pilgrimage, was delivered by a Constitution Bench of five judges. The Review Bench formed by Chief Justice Gogoi is also a five-judge Bench.
The Supreme Court decision in the Central Board of Dawoodi Bohra Community holds that a Bench of co-equal strength on its own cannot overrule a judgment of a Bench of co-ordinate number of judges.
So, a five-judge Bench cannot overrule another five-judge Bench’s verdict. In case the Sabarimala verdict has to be overruled, the Supreme Court would have to form a larger Bench of seven judges. Review of any Supreme Court decision is rare.
It is rarer still to examine review petitions filed against a Constitution Bench judgment and in an open court. Review petitions are usually decided by circulation in judges’ chambers. The situation (reviewing a Consitutional Bench) has been described as rare as a Constitution Bench is itself formed to finally settle a law.

About Kesavananda Bharati vs State of Kerala case:

It is popularly known as fundamental rights case
Under this case, the Supreme Court of India outlined the Basic Structure doctrine of the Constitution and ruled that all provisions of the constitution, including Fundamental Rights can be amended.
However, the Parliament cannot alter the basic structure of the constitution like secularism, democracy, federalism, separation of powers.
Under this Supreme Court declared 31 C as unconstitutional and invalid on the ground that judicial review is basic structure and hence cannot be taken away.
The Supreme Court reviewed the decision in Golaknath v. State of Punjab, and considered the validity of the 24th, 25th, 26th and 29th amendments.
The most significant contribution by Kesavananda Bharati judgment is the recognition of supremacy of the Constitution of India and its unalterable features.
The Kesavananda judgment also defined the extent to which Parliament could restrict property rights, in pursuit of land reform and the redistribution of large landholdings to cultivators, overruling previous decisions that suggested that the right to property could not be restricted.

Background on Sabarimala case:

The temple banned the entry of women pilgrims who are aged between 10 to 50 claiming it as a traditional practice.

Arguments in favour:

Barring women entry is considered as an “essential and integral” practice of a religious denomination under Article 25.
Lord Ayyappa was a celibate and it is argued that the deity also has right to maintain the celibacy.
This is also a part of right to privacy of the deity and it should be respected.
Biologically women are weaker than men and they cannot put up with the physical hardship, austerity and days of celibacy like men.

Arguments against:

It is against the fundamental right (Article 14) as it is discriminatory and against gender justice.
Article 26 only talks about freedom to manage religious affairs and this is subjected to constitutional morality and does not encourage any discriminatory practice
It is also considered as a form of untouchability as it socially ostracize women from religious practices against their will. And hence punishable under Article 17.

Important judgments involved in this issue:

1991 Kerala High Court judgement: It supported the restriction imposed on women devotees. It argued that that the restriction was in place since time immemorial and not discriminatory under the Constitution.
Supreme court recent judgment 2018 (Indian Young Lawyers Association v. State of Kerala). It supported the right of women of all ages to enter sabarimala temple. It argued that it is a constitutional right and it cannot be challenged. It added that practice is reflecting patriarchal attitude. This social exclusion if continued could only strengthen the principle of purity and pollution and dominant class ideology, said the Supreme court

Reflections of the recent judgment in the society:

Though it has been welcomed by social activists and gender equality supporters such as All India Democratic Women’s Association, it has also created other repercussions.
The judgment created dissenting opinion manifested in the form of spiraling protests in Kerala and also in others parts of the nation.

Reasons for disagreement with the judgment:

It questions the court’s authority to decide on essential practices of religious denominations
Also questions the court’s authority in deciding the integrity and ethics behind the religious practices
Justice Malhotra criticizes the Supreme Court reliance on the “essential religious practice” doctrine.

Allow ‘Minorities’ Into India, Says HC

13, Dec 2018

Context

The Meghalaya High Court has asked the Centre to bring in a law to let people of religious and ethnic minority communities from Afghanistan, Bangladesh and Pakistan to be given citizenship without any cut-off year or any questions asked.

Details:

The HC said that the Centre should have a law allowing Hindus, Sikhs, Jains, Buddhists, Parsis, Christians, Khasis, Jaintias and Garos from neighbouring countries to live in India “with full dignity without making any cut-off year and be given citizenship without any question or production of any documents.”
It further added that people may be allowed to come at any point of time to settle in India and the government may provide rehabilitation properly and declare them citizens of India.

About Citizenship Amendment Bill 2016:

It proposed amendments, amending the Citizenship Act of 1955.
This bill proposes to provide citizenship rights to migrants belonging to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian religious communities, who have illegally migrated from Afghanistan, Bangladesh or Pakistan
Hence these illegal migrants upon citizenship rights would not be subjected to imprisonment or deportation
Also, these citizens would be able to gain permanent citizenship after six years of residency in India instead of 11 years — as mentioned in the Citizenship Act (1955).
The registration of Overseas Citizen of India (OCI) cardholders may get cancelled if they violate any law.

SC Directs Centre to Declare Area Around National Parks as Eco-Sensitive

12, Dec 2018

Context:

The Supreme Court on Tuesday directed the Union Environment Ministry to declare 10 km area around 21 national parks and wildlife sanctuaries across the country as ‘eco-sensitive zones’.

Details:

The Supreme Court bench took the initiative after its amicus curiae (advisor) informed the court that the State governments have taken no effort to protect the area around these sanctuaries and parks. The court ordered the Centre to make the declaration “at the earliest”. Any plea for modification by the States concerned should be made to the Environment Ministry in two weeks.

Related 21 national parks and wildlife sanctuaries:

NATIONAL PARK/WILDLIFE SANCTUARY	PLACE
Pobitora sanctuary	Assam
Hemis High Altitude and Kishtewar national parks,	Jammu and Kashmir
Changthang, Hokersar, Trikuta sanctuaries
Jogimatti, Thimlapura and Yadahalli Chinkara sanctuaries	Karnataka
Deolgaon Rehekuri and Thane Creek Flamingo sanctuaries and the Malvan marine sanctuary	Maharastra
Siroi National Park and Khongjaingamba Ching sanctuary	Manipur
Fakim and Puliebadze and Rangapahar sanctuaries	Nagaland
Jorepokhri sanctuary	West Bengal
Dr. Bhimrao Ambedkar bird sanctuary and Pilibhit sanctuary	Uttar Pradesh
Baghmara Pitcher Plant sanctuary	Meghalaya

Don’t Reveal Identity of Rape Victims: SC

12, Dec 2018

Context:

The Supreme Court on Tuesday prohibited the media from publishing or airing the names or any material which may even remotely reveal the identity of victims of sexual crimes.

Details:

The court held that the bar on disclosure under Section 228A(2) of the IPC was not confined to just the name of the victim but actually meant that the “identity of the victim should not be discernible from any matter published in the media.”
The intention of the law makers was that the victim of such offences should not be identifiable so that they do not face any hostile discrimination or harassment in the future
The court further held that the name and identity of a victim who was either dead or of unsound mind should also not be disclosed even under the authorisation of the next of kin. Any exception to this rule should be decided by the competent authority, the Sessions Judge. It barred the police from putting in public domain FIRs under Sections 376 to 376E (the range of sexual offences under IPC) and those under the Protection of Children from Sexual Offences (POCSO) Act. The documents disclosing identity of a victim should be kept in a sealed cover. Authorities to which a victim’s identity was disclosed by an investigating agency or the court are duty bound to keep it a secret.
A victim need not reveal her identity while filing an appeal in a criminal court, the SC said.

Land acquisition law challenged in court

11, Dec 2018

Context:

The Supreme Court on Monday decided to examine a plea challenging the legality of amendments brought in by Tamil Nadu and four other States, which allow authorities to bypass the need to take farmers’ consent before their land is acquired for large infrastructure projects.

Details:

The bench issued notice to the Tamil Nadu, Gujarat, Andhra Pradesh, Telangana and Jharkhand governments for amending their land acquisition laws to the extent that consent of farmers or land owners is not required before their land is acquired for projects like industrial corridors, expressways and highways.
It is said that the States have amended to allow land acquisition without participation of representative local bodies like gram sabha in social impact assessment studies, without expert appraisal processes, public hearings, objections, and safeguard provisions to ensure food security.
The petition said the amendments violate the “core spirit” of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act of 2013. It mandates that 70% of the affected land owners should consent to the acquisition of land for a public private participation project.
The petition also said that the States have removed the consent clause of PPP, paving the way for many private projects that are running under the garb of PPP.

Supreme court allows states to fix own Two – hour cracker slots on Diwali

28, Oct 2018

Why in News?

The Supreme Court permitted local authorities to stagger the two-hour window for bursting crackers on Diwali to cater to local considerations. The top court was acting on plea by the Tamil Nadu government which had claimed that Diwali was celebrated in the morning with crackers.

Court’s order:

A bench comprising Justices AK Sikri and Ashok Bhushan permitted to make local variations but did not extend the time to burst crackers. On the other hand, the court rejected a slew of petitions seeking to have the ban on both production and sale of high-emission polluting crackers only for this year in the NCR. The court was however, ambivalent about the rest of India. The ban on making polluting crackers will possibly stay and only green crackers will be made from next year onwards.
The bench, though given the short notice at which it had ordered the switch from more polluting to less polluting crackers, made a relaxation on sale of less polluting crackers among the existing ones that have been made so far. The Supreme Court on Tuesday modified its October 23 order restricting the time for bursting crackers on Deepavali and other religious festivals to two hours, between 8 p.m. and 10 p.m.
Instead, it allowed Tamil Nadu and adjacent southern States to decide when people can burst crackers on festival days, provided the total time does not cross the two-hour mark. This means the authorities can stagger the time-slots and even make it an hour in the morning and another in the night.

Green rule for NCR:

Further, the court said its direction that only green crackers can be manufactured and sold is only applicable to Delhi and the National Capital Region areas. On October 23, the court had held that only green or improved crackers would be used in religious festivals and other occasions, including weddings. The court had fixed a uniform slot for bursting crackers across the country. During Deepavali and other religious festivals, the slot is between 8 p.m. and 10 p.m.

SC Decriminalises Homosexuality

02, Sep 2018

Constitution Bench declares the 156-year-old “tyranny” of Section 377 as irrational, indefensible and manifestly arbitrary.

Background:

The Supreme Court decriminalised homosexuality with a prayer to the LGBTQ.
(Lesbian, gay, bisexual, transgender, and queer) community to forgive history for their “brutal” suppression.
A five-judge Constitution Bench, unanimously held that criminalisation of private consensual sexual conduct between adults of the same sex under Section 377 of the Indian Penal Code is clearly unconstitutional.
The court, however, held that Section 377 will apply to “unnatural” sexual acts like bestiality. Sexual acts without consent continues to be a crime under the Section.
Section 377 punished homosexuality with a 10-year imprisonment.
This case was about people wanting to live with dignity. Citizens cannot be pushed into obscurity by a colonial law.
Section 377 discriminates against a minority solely for their sexual orientation. It violates the right of the LGBTIQ community to “equal citizenship and equal protection of laws”. The court held that bodily autonomy is individualistic. Choice of partner is part of the fundamental right to privacy.

History of LGBT Judgements:

In 1830 Thomas Macaulay, the main drafter of the penal code, called homosexual sex “odious” and “revolting”.
In 1884, a court in north India ruling on the prosecution of a hijra (a member of South Asia’s traditional transgender community), commented that a physical examination of the accused revealed she “had the marks of a habitual catamite” and commended the police’s desire to “check these disgusting practices”.
In 1934, a judge in Sindh (now Pakistan) described a man who had consensual sex with another man as “a despicable specimen of humanity”.
In 2003, the government of India said that decriminalising homosexuality would “open the floodgates of delinquent behaviour”.
And in 2013 a supreme court ruling on an earlier challenge to section 377 (overruled by today’s judgment) held that LGBT people constituted a “minuscule minority” who bore only “so-called rights”.

2013 Judgement:

Legal experts said this was a much-needed self-correction of a past judicial wrong committed on the LGBTQ community. The verdict would become the foundation for members of the community to seek individual rights like.
The 2013 judgment upheld Section 377 and set aside the reprieve won by the LGBTQ community through the Delhi High Court verdict of 2009, which decriminalised homosexuality. It had cast the community back into the shadows as “convicted felons”

CJI launches Mobile Apps for e-filing of cases

16, Aug 2018

The E-committee of the Supreme Court on Tuesday launched several mobile applications for the benefit of litigants and lawyers.

About:

Launch of apps for services such as e-filing along with user manual, e-payment options, National Service and Tracking of Electronic Processes (NTSEP), Supreme Court Legal Services Committee (SCLSC), and awareness guide for services offered under the e-Courts program.
National Service and Tracking of Electronic Processes (NTSEP)-it will solve the pending cases by fast tracking summons. With this app, he said, summons will now be available on mobile phones, making the process smoother.
Through e-payment options it would be possible to pay court fees, fine, penalty and various other fees online.
e-filing makes litigants to file cases online in the Supreme Court and High Courts across the country from subordinate courts and litigants won’t have to physically travel to the apex court and High Courts to file them.
The entire e-courts project has been on free open source software, saving more than Rs. 1,670 crores for the public exchequer.
The motive behind the launch is digital inclusion, it means serving the entire citizenry of the country by digitally connecting them making litigants feel comfortable in courtrooms.
With this app, summons will now be available on mobile phones, the process of 25 to 30 per cent cases would speed up which were delayed because of delay in services of summons.

Background:

The Government is implementing a project for computerization of District & Subordinate Courts in the country and for upgradation of ICT infrastructure of the Supreme Court and the High Courts under the e-Courts Mission Mode Project (MMP).
An E-Committee of the Supreme Court was constituted which is chaired by the Chief Justice of India to give overall policy directions to fulfilment of e-court programme.
An Empowered Committee has been constituted in the Department of Justice to provide strategic direction and guidance to the e-courts Mission Mode Project.
This Committee also has representative from the E-Committee of the Supreme Court

Impact:

Reduce the paper work. Which will lead to Ease of record maintenance .
Allow the judges to see e-files for review.
Can be used by judge, judicial fraternity to review the case.
Use as a backup by concern persons who have some doubt about the authenticity of the documents.
Different courts will be able to share the information online.
Court, Hospitals, FSL, Jail can simultaneously share their presentations/documents and other information online in a secured mode.
The documents of high secrecy which cannot be moved out of the department but needs to be shared with other agencies can be directly presented and discussed upon.
Travel and other related cost will be saved.

SC To Clean Up Politics

12, Aug 2018

Manipur ‘Extra-judicial killings’

12, Aug 2018

The CBI has taken over yet another murder case in connection with the alleged fake encounters in Manipur, pursuant to a Supreme Court directive.
The agency had re-registered 30 such FIRs so far.

Background:

ASupreme Court-appointed high-power commission headed by the retired SC judge Santosh Hegde probing six cases of alleged extra-judicial killings in Manipur, has found in their report that these were not genuine encounters and the victims did not have any criminal records.
The report makes it clear that the guidelines on encounters laid down by the SC in the Naga People’s Movement case was not followed.
The commission was also mandatedto address the larger question of the role of the State police and the security forces and make a report on their functioning and make recommendations for keeping the police and security forces within the legal limits without compromising on the fight against insurgency, If it was found that they violated legal bounds.
It submitted report on March 30, 2013 concluded that the incident in question was not an encounter, but an operation by the security agencies had caused the deaths.

Live Court

03, Jul 2018

The Supreme Court favoured to broadcast live hearing of cases in the apex court. This live telecast of court proceedings would be in line with the principle of open court.

Background:

In accordance with the cardinal principle of law that justice should not only be done, but also seen to be done.
It advance the rule of law and to bring accessibility and transparency in the administration of justice.
As citizens have the right to information under Article 19(1)(a) live broadcast will immensely help disseminating vital information and it also provide access to justice as protected under Article 21.

Benefits:

All citizens must be given an opportunity to understand how the law functions.
Technology will help us bridge the gap and make it possible to access the Supreme Court and virtually enter the courtroom even when not present.
When people understand how the judiciary functions and how the decisions are taken, it gives them more power, it gives them the tools to protect their rights, it gives them more respect and confidence in the judiciary.
Live streaming would also help in avoiding “misinformation and disinformation” of the top court proceeding. As people know instantly about the important developments in the court.
Would help litigants follow the proceedings in their case and also assess their lawyers’ performance.
People from far-flung States do not have to travel all the way to the national capital for a day’s hearing.

Consequences:

Enhances the transparency in its working.
A live telecast of proceedings also has the potential to reduce unwarranted delays in the cases caused by the occasionally unconcerned attitude of lawyers.
This it would keep a check on lawyers’ conduct inside the courtrooms.
As the arguments gets advanced and the discussions that ensue between the bar and the bench.
The next generation of lawyers and citizens will also gain from the immense educational and archival value of the landmark cases.
This will provide an opportunity to young lawyers to showcase their talents to the world and has the potential to break the stranglehold of a select few over the legal profession.

Fallouts:

Could adversely affect the character and quality of the dialogue between the attorneys and Justices.
It could lead to misunderstandings about how the court works and enable journalists to take snippets of arguments out of context.
Media distortion of the proceedings for their commercial motive is possible.
Televising court proceedings could make Judges and lawyers, targets of violence from disappointed litigants or the public at large.

Reservations:

Live-streaming cases involving national security concerns, matrimonial disputes and rape cases, public viewing of marital dispute and rape case proceedings would seriously affect justice and amount to a violation of the fundamental right to privacy.
Broadcasters should be on a non-commercial basis. No one should profit from the arrangement.
Framing guidelines for live-streaming proceedings with inputs from all stakeholders.
There should be guidelines on which kind of cases could be live telecast or recorded etc.
Consent of witness or the accused has to be obtained before broadcasting, by the trial judge hearing the case.

Live telecast of Lok Sabha and Rajya Sabha proceedings since 2003 and 2004 respectively had generated awareness among the people about the work of their elected representatives and enhanced transparency in the parliamentary processes. This can be replicated in judiciary.

Last year, in a bid to ensure transparency, the top court allowed the installation of CCTVs to record proceedings in trial courts.so following this path supreme court and central government can implement live broadcasting after taking all the reservations in to account.

Category: Judiciary

Four SC Collegium resolutions give an insight into government’s priorities

Supreme Court clears 6,844 pending cases

Supreme Court Quashes Kerala HC order Granting Anticipatory Bail

Transfers of High Court Judges

National Judicial Appointments Commission (NJAC)

Collegium system of appointments of Judges to the Higher Judiciary

Bhandari sworn in as Chief Justice of Madras HC

Why in News?

About the News:

What is Collegium System?

Evolution of the Collegium System:

Procedure for Various Judicial Appointments:

Criticism of the Collegium System:

Attempts to reform the Appointment System:

Related Constitutional Provisions:

Way Forward:

Collegium Recommends Bhandari for HC CJ Post

Why in News?

About the News:

What is Collegium System?

Evolution of the Collegium System:

Procedure for Various Judicial Appointments:

Criticism of the Collegium System:

Attempts to reform the Appointment System:

Related Constitutional Provisions:

Way Forward:

Consent of AG to initiate contempt proceedings

Why in News?

Need for Consent:

What is the law on Contempt of courts?

Why is the consent of the Attorney General required to Initiate Contempt proceedings?

Under what circumstances is the AG’s consent not needed?

What happens if the AG Denies Consent?

SC upholds validity of OBC quota in NEET admissions

Why in News?

What was the Apex Court’s ruling?

What is NEET?

What is the All-India Quota?

What was the Reservation Policy followed so far?

What led to the Decision?

Way Forward:

CBI files Chargesheet against Former Allahabad HC judge

Why in News?

Historical Background of the Issue:

Stipulated guidelines by the SC in the K. Veeraswami case:

What’s next if FIR is Filed?

PLEA CHALLENGING APPOINTMENT OF ADDITIONAL JUDGE REJECTED

Why in News?

Appointment of the Judges of High Courts:

Qualification to Become a High Court Judge:

Term and Salary of HC Judges:

Removal of the Judge of a High Court:

How HC Judges are transferred?

Post retirement Jobs of HC Judges:

BASIC STRUCTURE AND THE KESAVANANDA BHARATI CASE

Why in News?

About the News:

Background of the Case:

What Constitutes the Basic Structure?

Basic Structure’ Since Kesavananda Bharati Case:

Few Criticisms regarding the Verdict:

What are the Outcomes and Implications of the Judgment?

NATIONAL LEGAL SERVICES AUTHORITY (NALSA)

Context:

About NALSA:

Composition of NALSA:

About State Legal Services Authorities:

About District Legal Services Authority:

About Constitutional Basis of Legal System:

SUPREME COURT ORDERS TO RELEASE PRISONERS

Why in News?

Highlights of the Judgement:

Judgement regarding Foreigners’ Detention Centres:

VIRTUAL COURTS AND WAY FORWARD

Context:

Key Highlights:

Benefits of Virtual Courts

Convenient Technique:

Better Court Management: