JUSTICE JUDICIARY AND RELATED ISSUES

JUSTICE JUDICIARY AND RELATED ISSUES

Challenges with Judiciary

1. Human Resources
   • Vacancies: Against the sanctioned strength of high court judges as 1108, there are 336 vacancies among high court judges while Supreme Court had 5 vacancies (OCT. 2022).
   • Exclusions: Lack of representation of women, minorities, and vulnerable sections in the higher judiciary. For ex – Till date there have been only 11 female judges in Supreme Court.
   • Issues in appointment:

• Records of appointments: Records of deliberations in respect of appointment or transfer have been withheld from the public, and there is no information as to what forms the basis of these decisions.
• Lack of review related to appointments: Decisions relating to appointment or transfer of judges are not amenable to judicial review.
• Perceived biasness: For ex – In May 2019, Collegium recommended appointment of Justice Arun Mishra’s brother as a judge of the MP High Court. In the same month, his appointment was confirmed. This was despite the fact that he was below 45 years, as prescribed under draft memorandum of procedure.

1. Infrastructure
   • Poor digitization: Lack of investment in IT infrastructure, digital divide, and cyber security threats etc.
   • Basic infrastructure: Most subordinate courts lack basic infrastructure for judges, court staffs, and litigants. For ex – proper audio facilities in court rooms, washrooms, etc.
2. Judicial transparency and accountability
   • RTI related issue: Need to show public interest while asking information under RTI Act which acts as an unnecessary condition.
   • Independence of court: Hampered due to post-retirement jobs.
   • Misuse of Judicial time: Judicial time is a public resource and its misuse is manifested in many ways. For ex – lengthy, irrelevant digressions, practices such as preferential listing of certain cases, certain profile of matters and lawyers, listing of cases for re-arguments, etc.
   • Issue related to judicial misconduct: There is no independent authority to investigate instances of judicial misconduct.

 

1. Justice delivery
   • Lack of judicial propriety: For ex – judgements in rape cases asking victim to marry the accused or tie rakhi to accused.
   • Biases: The lack of any checks and balances allows judges to act on their biases (aesthetic, anti-poor, or otherwise) and that too with a free hand in a most expansive manner [Study by Anuj Bhuwania].
   • Encroachment in executive and legislative sphere: For ex – Banning sale of liquor at any establishment within 500m of a highway by Court.
   • Outsourcing of justice to executive: For ex – In Anuradha Bhasin case, instead of dealing with constitutional issues, Court handed over the exercise of advising the Court and administration to an executive-led special review committee. This tantamount to justice being denied.
   • Judicial evasion: For ex – In Kashmir 4G case, when petitioned as to how the internet shutdown was affecting the public health delivery system in J&K, Court told the petitioner to approach the high court to avail the appropriate legal remedy.
   • Pendency: Backlog of cases in district courts saw a sharp increase of 18.2% between December 2019 – December 2020. In the 25 high courts, pendency of cases in 2019-2020 increased 20.4%. In the Supreme Court, pendency rose 10.35%.
2. Other issues

 

• Legislations: Laws and regulations that are onerous, cumbersome, and give regulatory and investigative agencies wide and arbitrary powers.

 

• Lack of time-limit: Barring very few statutes, there are no defined timelines within which regulators/investigators close investigation.

 

Way Forward

1. Impact assessment: A comprehensive strategy for data collection and analysis at courts, tribunals, and investigative agencies based on the nature of the matters, duration of pendency, and stage of the matters, in order to assist in impact assessment of different initiatives.
2. Steps to reduce pendency
   • Relook at the non-applicability of limitation periods: In the context of socio-economic offences as an old issue may not only be difficult to defend but also, prosecute, on account of the non-availability of admissible evidence.
   • Alternate Dispute Redressal: Introduce, publicize, and promote settlement and mediation mechanisms under various statutes, including methods such as deferred prosecution arrangements.
   • Justice delivery: Implement measures to strengthen and expedite justice delivery and disposal of matters through timely appointments, provision of adequate infrastructure, and regular monitoring of case-load ageing at such tribunals.
   • Decongesting courts: By shifting workload of regular courts to commercial courts and criminal judicial magistrates [India@75, Niti Aayog].
3. National Litigation Policy: In order to bring about discipline, consistency, and effective decision-making in the government and insulating bona fide decision-making from subsequent sanctions on the grounds of a different opinion.
4. Increase use of technology and digitization
5. Task Force for Promoting Gender Diversity in Higher Judiciary: With at least 50% of its members as women judges, lawyers, and academics to make proposals that will lead to the evolution of a gender-diverse higher judiciary in India.
6. NITI Aayog in its India@75 has given the following suggestions
   • All India Judicial Services: To maintain high standards in judiciary.
   • Training: Continued training to ensure development of skills, ethics, knowledge, and awareness of international best practices.
   • Performance index: For judges and a separate state-wise index for ease of getting justice.
   • Administrative Cadre: Introduction of an administrative cadre in the judicial system to streamline the process.
   • Speedy Justice
     • Video-conferencing: Facilitate availability and usage of video-conferencing facilities to assist in speedy access to justice and to minimize logistical issues.
     • Court process automation: It should be prioritized and ICT enablement for electronic court and case management.

 

APPOINTMENT OF JUDGES

Articles Involved

• Article 124: President should appoint Supreme Court judges after consultation with such judges of High Courts and the Supreme Court as he/she may deem necessary.
• Article 217: Which deals with the appointment of High Court judges, says the President should consult the CJI, Governor, and Chief Justice of the High Court concerned.

 

Judicial Evolution

• Before 1973: The senior-most judge of the Supreme Court became the CJI and appointments were based on seniority.
• 1st Judges Case, 1982: It gave that the Chief Justice’s recommendation on judicial appointments and transfers can be refused for cogent reasons.
• 2nd Judges Case, 1993: It introduced the Collegium system, and held that consultation with the CJI on appointment meant concurrence and thus binding.
• 3rd Judges Case, 1998: It expanded the Collegium system to include the CJI and 4 other senior judges in the Supreme Court and for High courts, the Chief Justice and 4 senior judges of that High Court.

 

Current System

• Judicial Role: Collegium decides the names and forwards it to the government.
• Executive Role: The recommendations are received by the Law Minister, who forwards it to the Prime Minister to advise the President.

 

Arguments in Favour of the Collegium System

• Separation of Powers: It helps maintain the independence of the judiciary in appointing its own judges.
• Avoid Politicisation: Since judges decide their own, it keeps any political motive of the executive away. Example: It prevents the transfer of judges based on executive demands as in the case of civil servants.
• Domain Expertise: The executive organ is not specialist or does not have the knowledge regarding the requirements of the Judge as compared to the CJI.
• Secrecy: It kept secret a secret for proper and effective functioning of the institution.
• Consultative Process: The Collegium makes recommendations after consulting within senior judges.
• Government is a major litigant: Since the government is a major litigant, giving it an edge in appointments would amount to fixing the courts.

 

Arguments Against

• Opaque process: This system does not provide any guidelines in selecting the candidates for the judge position of the Supreme Court.
• Lack of checks and balances: The system gives immense power to appoint Judges, so the check on excessive powers would not be ensured.
• Rise of Nepotism: Law Commission of India in a 2009 report said that nepotism and personal patronage are prevalent.
• No Transparency: According to former judge Chelameshwar, the collegium system lacks “transparency, accountability, and objectivity”.
• Judicial Burden: Appointment functions take a lot of time and thus affect the efficiency of case management in the courts.
• Undemocratic: The system involves judges selecting judges without any public representation or legislative role, thus not democratic. 
• Not Representative: It has no framework to ensure representation from women and other marginalised sections.

 

Way Forward to Reforming the Appointments System

• Open to RTI Petitions: So that any citizen can seek and get information about the process through which a judge was appointed.
• Wrongful Appointments: Those appointed on basis of malafide grounds or without merit must be removed and proper frameworks against their appointment must be in place.
• Minimum Eligibility: Minimum eligibility criteria for consideration need to be laid down, including appearances in important cases.
• Recommendatory Body: It may be constituted to scrutinize the credentials of candidates and recommend names to the collegium.
• Codify decisions: A written manual should be released by the Supreme Court which should be followed during appointments.
• Curb Nepotism: Disclosure of relationships and affiliations of applicants to sitting and retired judges.
• Ad Hoc Judges: There must be an appointment of ad hoc or additional judges to clear pending cases.
• Reforming the NJAC: NJAC can be amended to reflect judicial concerns and further implemented.
• Executive-Judiciary Parity: India is the only country where judicial appointments are insulated from executive oversight.

 

National Judicial Appointments Commission (NJAC) 

It was a proposed body which would have been responsible for the appointment and transfer of judges. It would have been composed of persons from the judicial field, judges, and the law minister. It was struck down by the Supreme Court for being unconstitutional and thus never came into force.

 

Arguments in Favour of NJAC

• Checks and balances: With Executive Veto in the committee, it checks any misuse of judicial power.
• Accountability: With a public-elected representative, the system is more accountable to the public wishes.
• Multi Stakeholder: The NJAC brings jurist groups, the judiciary, and the executive together.
• Transparency: The appointment process would be more transparent and composite.
• Veto Power: Members have veto power. If two members veto a nomination or decision, the matter is dropped.

 

Why was it struck down by SC?

• Culture of Reciprocity: Reciprocity favours between the government and the judiciary, and thus, destroys the latter.
• Breaches Independence: The presence of a law minister breaches the independence of the judiciary in its own matters.
• Scope of Political Interest: Since the government is a major litigant, it would be easy to make political advantages if the executive decides.
• Compromises Separation of Powers: The NJAC would entail Executive activism in the domain of judicial expertise.

 

JUDICIAL REVIEW

Judicial review is a process under which executive or legislative actions are subject to review by the judiciary. It also involves the Judiciary reviewing its own decisions in the past. Both the Supreme Court and the High Courts have the power to initiate Judicial Review.

Articles Involved

• Article 372: Framework for judicial review of the pre-constitution legislation.
• Article 13: It says any law which contravenes any of the provisions of the part of Fundamental Rights shall be void.
• Articles 32 and 226: Entrusts the judiciary as the protector and guarantor of fundamental rights.
• Article 137: It gives power to the SC to review any judgment pronounced or order made by it in the past.

 

Importance of Judicial Review in India

1. Constitutional
   • Federal Balance: It ensures the central government does not breach any federal norms of the constitution. Example: In the SR Bommai case, the Supreme Court clearly detailed the limitations within which presidents’ rule can be invoked and to prevent central autocracy.
   • Upholds Constitution: It upholds the supremacy of the constitution. Example: In the Shreya Singhal case, the SC struck down provisions of arrest under the IT Act for posting on the internet as unconstitutional and violating freedom of expression.
   • Prevents Autocracy: It checks any misuse of powers by the government and prevents it from turning tyrannical.
   • Separation of Powers: It protects the mandate of separation of powers and curbs any overreach. Example: SC struck down NJAC verdict on grounds of violating the separation of powers doctrine.
   • Protects the Basic Structure: Judicial review also protects the basic structure of the constitution from being amended reductively. Example: In Kesavananda case, it held that Parliament can’t destroy or amend the basic structure of the constitution.
   • Checks and Balances: It enables judicial intervention in case of executive overreach. Example: Cooper vs. Union of India, the Supreme Court brought the President’s satisfaction in executive and legislative matters under Judicial review.
2. Individual/Society
   • Fundamental Rights: It is an important mechanism to protect the fundamental rights of citizens from executive/legislative excesses. Like Basic Structure Doctrine, Right to Privacy judgment, etc.
   • Social Justice: It ensures that rights are not violated by the state and discrimination does not take place. Example: In 2020, the SC restored the ban on anticipatory bail on SC/ST Act thus reviewing its own verdict in Kashinath Mahajan Case.
   • Personal Laws: It protects individuals from malpractices of personal laws. Example: The Shayra Bano verdict ruled the practice of triple talaq to be unconstitutional.

 

Limitations to Judicial Review in India

• Hinder Government Functioning: Judicial review is frequently seen to affect the implementation and the enactment of laws passed by elected Parliament.
• Judicial Activism: Giving orders and directives to bypass legislations is a breach of the judiciary’s domain.
• Institutional Bias: Judicial Review can be used to harass an elected government due to existing differences between the judiciary and the government.
• Personal Interest: Many judges may have pecuniary interest in the stalling or review of an existing law or order. 
• Beyond Domain Expertise: The Judiciary cannot interfere in political questions and policy matters unless absolutely necessary. 
• Erodes public faith in the government: Repeated interventions of courts can diminish the faith of the people in the elected government. 
• Violates limit on power: It violates the limit of power set to be exercised by the constitution when it overrides any existing law.

 

Notable cases in India

• Maneka Gandhi Case 1978: The SC harmonised “procedure established by law” actually and “due process of law” of US constitution which includes principles of natural justice.
• Shreya Singhal Case, 2015: It struck down the IT Act provisions that allowed arrest of individuals based on the content they post online.
• Kesavananda Bharati Case, 1973: 24th and 25th Amendment Act of 1971 was challenged and SC stated that Parliament can’t destroy or amend the basic structure of the constitution.
• Indira Gandhi vs. Raj Narain Case, 1975: The 39th Amendment was challenged and struck down as it had put a bar on any question regarding the election of Speaker and Prime Minister.
• SR Bommai Case, 1994: The Supreme Court clearly detailed the limitations within which presidents’ rule can be invoked and to prevent central autocracy.
• IR Coelho Case, 2008: In this case, the court held that any act inserted in 9th Schedule can be judicially scrutinized which are inserted after 24th April 1973, thus quashing Article 31A.
• Shayra Bano Case, 2017: SC has ruled the practice of triple talaq enshrined in Muslim personal law to be unconstitutional.
• Krishna Kumar Singh Case: SC has reiterated that re-promulgation of ordinances is a fraud on the Constitution and a subversion of the democratic legislative processes.

 

Way Forward

• Use only in Exceptional cases: The power of judicial review must be maintained only for cases having fundamental questions of rights.
• Setting limits to the power: Currently, the scope of Judiciary is unbridled, thus there must be frameworks to limit the power from arbitrary use.
• Executive-Judicial Cooperation: In many cases, the Judicial review can be avoided if legislations are done after dialogue with the judiciary.
• Curb Judicial Overreach: Judicial review must not breach the domain of the judiciary and into that of the executive.
• Balance: Parliamentary supremacy and the power of judicial review are both pillars of Indian democracy and thus must have sufficient balance.

 

PUBLIC INTEREST LITIGATION (PIL)

Public Interest Litigation (PIL) means a legal action initiated in a court of law for the enforcement of public interest in which the public or class of the community have some interest by which their legal rights or liabilities are affected. Because of the two eminent Indian Supreme Court judges, V.R. Krishna Iyer and P.N. Bhagwati, PIL jurisprudence became a revolution. Technically, the 1979 Hussainara Khatoon Vs the State of Bihar was the first PIL.

Difference between PIL and Ordinary Litigation

Aspect	Public Interest Litigation (PIL)	Ordinary Litigation
Meaning	Deals with cases where the community at large has an interest in legal rights or liabilities being affected.	Deals with disputes between opposing parties with individual grievances.
Terms of Petition	Can be filed by a person not directly aggrieved but motivated by social or emotional concerns.	Can only be filed by the person who is directly aggrieved by the dispute.
Procedure	Filed in the High Court or Supreme Court under Article 226 and Article 32, respectively.	Filed in a court with jurisdiction of the lowest grade.
Applicability	The court’s decision has a general application affecting the public or setting a precedent.	The court’s decision is limited to the parties involved in the dispute.

 

Importance of PIL

1. Constitutional Importance
   • Rights Advocacy: PIL enables people to assert their rights and get remedial action for any wrong.
   • Democratises Justice: Any citizen or organisation who is capable can file petitions on behalf of those who cannot or do not have the means to do so. Example: Parmanand Katara, an ordinary citizen, brought out the issue of hospitals denying treatment to accident victims to the SC.
   • Judicial Review: It can be used to challenge the decisions of public authorities by judicial review. Example: In Shreya Singhal case, the SC struck down arrests made under Section 66A of IT Act for posting content on the internet.
   • Holding the Government Accountable: It can be used for enforcing the legal obligation of the executive and the legislature.
   • Rule of Law: It helps form the checks and balances to correct any executive or legislative wrongdoing.
   • Focussed Judicial Attention: Litigants can focus and achieve results pertaining to larger public issues. Example: A petition sought to make arrangements in order to rescue and bring the Indian Migrants stranded in Gulf Countries during COVID.
   • Investigative Litigation: As it works on the reports of the Registrar, District Magistrate, comments of experts, newspapers to establish justice.
   • Informal Justice: Formal justice through conventional means often overlooks social justice, thus PIL is required.
2. Political Importance
   • Political Accountability: The scope of being challenged through PIL makes governments more accountable in their policy approaches.
   • Citizen Awareness: It leads to more political awareness among citizens and regarding their rights.
3. Social Importance
   • Voice to Vulnerable: It gives vulnerable people a voice by highlighting an important issue and providing a platform for advocating for their rights. Example: NALSA verdict helped provide fundamental rights to transgenders.
   • Substantive Justice: The chief objective behind PILs is ensuring justice to all and promoting the welfare of the people. Example: Vishakha Guidelines protected women from sexual harassment at workplace.
   • Human Rights: It helps uphold human rights and reach those who have been denied rights.
     Example: In Bandhua Mukti Morcha v. Union of India, S.C. ordered for the release of bonded labourers.
   • Monitoring: It helps the judiciary monitor social institutions like Old age homes, asylums, orphanages, and prisons.
     Example: In Hussainara Khatoon case, the court released undertrials who had served their maximum sentence possible.
   • Participatory Democracy: Citizens are empowered to bring forth petitions and participate in the justice delivery.
   • Collective Rights: PIL helps ensure collective rights of a section, community, or group of individuals in similar situations.
     • Example: In Samatha case in Andhra Pradesh, SC banned leasing of forest and tribal land by private entities to others.
   • Inexpensive: It is cheaper than conventional process because there is only a nominal fixed court fee involved in this.

 

Issues with the PIL

1. Procedural Issues
   • False Petitions: Petitions not carrying any serious issue result in the wastage of time of the courts.
   • Case Delays: Inordinate delays in the disposal of PIL cases may render many leading judgments merely of academic value.
   • Judicial Activism: The judiciary is overstepping the boundaries of its jurisdiction and that it is unable to supervise the effective implementation of its orders.
   • Inconsistent Approach: In some cases, the court has expressed its reluctance to step into the legislative field; in others, it has given detailed guidelines.
2. Institutional Issues
   • Private Interest Litigation: PIL is being misused by the people agitating for private grievance rather than espousing public cause.
   • Hampers Judiciary: It has been seen that PILs are given more priority over long pending cases of the judiciary.
   • Case Burden: The judiciary is already burdened with pending cases, PIL petitions increase the caseload.
   • Removal of Locus Standi: The removal of the locus standi requirement has permitted privately motivated interests to pose as public interests.
   • Politicised: Political parties are also seen filing frivolous petitions to get political publicity.
   • Conflictual Rights: Decisions on one issue can significantly alter the rights of another group.
     Example: A decision to shut down a polluting factory can affect the livelihood of workers employed.

 

Successful PIL Cases

• Vishakha Guidelines 1997: The guidelines, directed toward employers, included a definition of sexual harassment, a list of steps for harassment prevention, and a description of complaint procedures.
• Undertrial Justice: In Hussainara Khatoon v. State of Bihar, the SC made the order to release 40,000 undertrials who had served the maximum period.
• Treatment to Accident Victims: In Parmanand Katara case, the court gave complete freedom to hospitals to attend an emergency case without the worry of police case issues.
• Custodial Violence Against Women: In the Sheela Barse case, the SC ordered separate police lockups for women convicts in order to shield them from further trauma and brutality.
• Ganga Pollution: In the MC Mehta case, 1988, SC lashed out at civic authorities for allowing untreated sewage from Kanpur’s tanneries making its way into the Ganges.

• Solitary Confinement: In Sumit Batra Case, the SC emphasised the right to be protected from solitary confinement of undertrials.
• 2G Scam: The PIL helped the SC to scrap 122 2G licences which were awarded wrongfully.
• Indira Sawhney Case: The court spelled out that such a system should not exceed tenure of ten years once a particular section is adequately represented in society.
• Transgender Rights: In the NALSA case, 2014, the court recognized that fundamental rights are available to the third gender or transgenders.
• Shreya Singhal Case: It struck the unconstitutional arrests made under Section 66A of IT Act for posting content on the internet.

 

Way Forward

1. Complete Justice: PIL may affect the right of persons not before the court, and therefore in shaping the relief, the court must invariably take into account its impact on those interests.
2. Fixed Guidelines: The SC must interfere only in cases of violation of fundamental rights related to people who cannot themselves approach the court.
3. Penal Action: Penal action must be taken against those seeking to file frivolous petitions.
4. Utilitarian Approach: The courts must entertain with priority cases that involve the rights of multiple persons rather than for a single person.
5. Compensation: Those making frivolous claims will have to pay compensation to the opposing parties.
6. Curbing Private Interest: There must be curbs on those petitions seeking personal interest.
   Example: In the UK, the applicant must not have a direct legal or financial interest in the dispute brought forth by him.
7. Recommendations of Former Attorney General Soli Sorabjee
   • Rejection of Cases: He emphasised rejection of false petitions and the judiciary must not waste its time on such cases.
   • Private/Political Interests: He recommends rejection of cases where a private entity has a direct financial interest in the case.
   • Allowing Locus Standi: He also recommended an applicant having no relation to the dispute be allowed to stand as locus standi.

 

ARTICLE 131 – ORIGINAL JURISDICTION OF SUPREME COURT

Kerala Government Case

• The Kerala government invoked Article 131 to file a petition against the Citizenship (Amendment) Act (CAA) in the Supreme Court on January 14, 2020.
• Kerala claims that the Act violates the basic fundamental rights of a citizen enshrined in the constitution such as the principle of equality, freedom, and secularism which forms part of the basic structure of the Constitution.

 

Chhattisgarh Government’s Case

• Chhattisgarh government also recently filed a suit in SC (under Article 131) against the National Investigation Agency (NIA) Act, 2008.
• It claimed that ‘Police’ & ‘Public Order’ are the state subjects and States have the ultimate authority to make laws related to it.
• NIA Act, 2008 takes away the state’s power to investigate offences categorised as ‘scheduled offences’ under the Act, though they are within State’s jurisdiction.

 

About Article 131

The Supreme Court possesses original jurisdiction to decide the disputes arising between different units of the Indian Federation like:

• Between the Government of India and one or more States; or
• Between the Government of India and any State or States on one side and one or more other States on the other; or
• Between two or more States, if and in so far as the dispute involves any question.

 

Important Judgements

1. West Bengal’s Case: Rights in Mines in Coal-bearing Areas
   • A case was filed against the Central law (Coal Bearing Areas (Acquisition and Development) Act, 1957) under Article 131.
   • The State claimed that the Act did not apply to lands vested in or owned by the State, and even if it applied to such lands, the Act was beyond the legislative competence of the Parliament.
   • In 1962, the SC entertained the West Bengal’s petition under Article 131 as the State had legal rights in this case; however, it also upheld the Central law.
2. State of Rajasthan vs Union of India, 1977
   • The Supreme Court ruled that the existence or extent of a legal right is a precursor before a suit under Article 131 is entertained. But mere wrangles between governments have no place in the scheme of that Article.
3. State of Karnataka v Union of India, 1978
   • Justice P N Bhagwati had said that for the Supreme Court to accept a suit under Article 131, the state need not show that its legal right is violated, but only that the dispute involves a legal question.
4. State of MP v Union of India, 2011
   • The Supreme Court held that the validity of central laws can be challenged under Article 32 of the Constitution and not under Article 131.
5. West Bengal government’s case in 2017
   • In 2017, the SC proclaimed that the State government cannot ask for any remedy related to Fundamental rights.
   • The case was filed under Article 32 of the Constitution challenging the validity of the ‘Aadhaar Act’.
   • The Court also held that, “Fundamental rights are available to individuals: citizens or non-citizens against the State (under Article 32 or Article 226) and not to the State entities.”

 

Significance of Article 131

• Federalism: Article 131 helps in resolving federal disputes between state and centre or between two states. It implies that the federal structure has been given importance by the constitution makers. It is a way to maintain the federal nature of Indian polity.
• Legal rights of the state: The Constitution under Article 131 provides that whenever a State feels that its legal rights are under threat or have been violated, it can take the dispute to the SC. It thus prevents an infringement of the legal right of the State government.
• Way to remove states’ dissatisfaction: Article 131 allows states to move to the apex court to remove their dissatisfaction against any action of the centre which they might think is against the states and develop dissatisfaction in them. It provides a way to remove such dissatisfaction.
• Check on Centralisation tendency: The Centre can’t enact any law which impinges or interferes with legal rights of states. Any tendency of such an act is dealt with by Article 131.
• Cooperative federalism: By resolving various disputes among various federal units of the Indian polity (i.e., centre and state and between two states), Article 131 allows them to cooperate and work on important matters.

 

Issues

1. Ambiguity of Article 131: Which gives Parliament a leeway to amend or pass laws without worrying about repercussions.
2. Must involve question of law: The dispute must involve a question of law or a question of fact that transcends a legal or a constitutional right, and should not include political conflict, unless legal rights are at stake.
3. Can the states file an original suit under Article 131?
   • There have been two conflicting judgments from the Supreme Court on whether a State can file an original suit under Article 131 to challenge the constitutionality of central law.
     • The first judgment was reported in 2012 in the State of Madhya Pradesh vs. Union of India case, which held that the States cannot challenge a central law under Article 131.
     • The second judgment in the State of Jharkhand vs. State of Bihar case took an opposite turn in 2015 and was referred to a larger bench of the Supreme Court for final determination. This case is still awaiting the final judgment.
4. Can the Supreme Court test the validity of a central law under Article 131?
   • A central law can be challenged under Article 131 under the following cases:
     • Legislative Competence: A law must be challenged in the Court if it is in excess of the legislative competence of the framing authority.
     • Violation of Rights: The Court can check whether a particular law violates which kind of rights—whether Fundamental or Constitutional rights.
       • Kerala’s petition is based on the premise that CAA is a violation of fundamental rights and not about the legislative competence of the Parliament.
     • Violation of the Constitution: The Court can test a law if it is ultra-vires the Constitution. In this regard, there are following doctrines which have been evolved by the SC over a period of time:
       • Doctrine of Basic Structure: Signifies the basic features of the Constitution, which cannot be changed/amended, as they form the foundation of the Constitution on which its core principles/existence stands.
       • Doctrine of Pith & Substance: Pith means ‘true nature’ or ‘essence of something’ and Substance means ‘the most important or essential part of something’.
       • Doctrine of Colourable Legislation: It comes into play when a Legislature does not possess the power to make laws upon a particular subject but it indirectly makes law on it.

 

Way Forward

• Politically motivated pleas must be abandoned and must not be entertained by the SC. Instead, determined efforts must be made to resolve them within the political arena.
• Representatives of states must speak up in the Parliament when the laws are being framed & passed rather than making hue and cry later.
• Federalism is a two-way street: Both parties to it must respect the boundaries (or ‘Lakshman Rekha’) of one another that have been drawn by the Constitution.

WOMEN IN JUDICIARY

The issue refers to the increase in representation of women in higher judicial offices. Currently, it is felt that they are underrepresented in such positions. It has often been seen as a requirement in better justice delivery, especially in gender-sensitive cases.

Data High Courts: In High Courts, 11.5% of Judges are female as of March 2022. [Law Ministry] Supreme Court: In the Supreme Court, 4 sitting judges are women as of March 2022. [Law Ministry]. Only 11 women have been Supreme Court judges since independence till date. Subordinate courts: 30% of judges in the subordinate judiciary are women [Law Ministry]. Female Advocates: Out of 1.7 million registered advocates in India, only 15% are women. World Scenario: The OECD report, however, underlines that women only hold 33.6% of judgeships in Supreme Courts.

 

Reasons for Poor Women Representation

1. Institutional
   • Eligibility Criteria: Lawyers need to have seven years of continuous legal practice and be in the age bracket of 35-45. This is a disadvantage for women as many are married by this age.
   • Demanding working hours: The long and inflexible work hours in law, combined with familial responsibilities, is a drawback to take up this as a profession.
   • Historical exclusion: Judiciary has been dominated by men and kept women out due to conceptions of “male legitimacy”. Example: Only 11 women have been Supreme Court judges since independence.
   • Promotion Bias: The lack of women in the higher judiciary compared to that in the lower courts also shows a bias in promotions. Example: Goa, with 72% women judges in its subordinate courts, drops to 13% at the High Court.
   • Reluctancy: Women at all levels of the judiciary are critical for handling certain issues that may have very wide social and political ramifications.
   • Lack of Women in the Collegium: Women representation in collegiums is almost absent for higher judiciary. Example: Currently, no member in the collegium is a woman.
2. Social
   • Social Mindset: Where women are considered incapable of taking decisions.
   • Gender-sensitive infrastructure: Many courts in India lack even basic clean toilets, let alone other facilities such as crèches and nursing spaces.
   • Sexism: There is a presence of sexist notions and remarks passed against women judges in the line of duty.
   • Feudalist Patriarchy: Many cases have emerged where petitioners have asked for a male judge to hear the case replacing the woman judge.
   • Generalisation: Women issues are usually generalised as social issues and resolution is done in an undifferentiated manner. Example: Madhya Pradesh HC order had imposed a bail condition asking a man accused of sexual assault to get a Rakhi tied by the victim as a condition for bail.

 

Need for Women in Judiciary

1. Political
   • Representation: It enhances the representation of women in higher and socially decisive positions.
   • Empowerment: It sets a right precedent for ambition and achievement amongst women and brings them out of the fold of neglect.
   • Better decision making: It has often been observed women are capable of more inclusive decisions. Example: There were instances where courts prodded alleged sexual offenders and victims towards “compromise weddings”.
   • Substantive Equality: Women judges can ensure that differentiated equality is achieved rather than formal equality.
   • Frequent Overturning: It is seen many verdicts in favour of women get overturned due to a lack of gender-sensitive judicial approach.
2. Social

• Gender sensitization: Women have proved to make better decisions in gender-sensitive and women-related cases. E.g., For instance, an all-women bench held that a woman should be given the right of refusal to submit herself to sexual intercourse to anyone.
• Improves accessibility: It helps women come out and report crimes from the encouragement of women judges.
• Inclusive feminism: With more empowered women, it removes any ill belief that women are incapable of jobs done traditionally by men.
• Removal of stigma: As a court’s composition becomes more diverse, its customary practices become less entrenched.
• Social Diversity: The more socially diverse the judiciary is, the more effective its functioning and verdicts. Example: In 1997, Judge Sujata Manohar gave the Vishakha Guidelines on sexual harassment.

 

1. Other Factors

• Declining Public Trust: Due to its current inability to be gender-neutral and make informed decisions on gender-sensitive issues, there has been a decline in the public trust in the judiciary.
• Judicial Legitimacy: The judiciary’s approach to women will give it more legitimacy in deciding numerous gender-sensitive cases.

 

Challenges

1. Institutional
   • Opaque appointment process: The collegium decides upon the eligibility, and it is often unclear on what basis one is appointed.
   • Judicial Exclusion: The judiciary almost has no mechanisms to ensure public discourse regarding it is looked into, thus women’s issues remain excluded.
   • Lack of present woman judges: The low presence of women means that the issue of women representation will be frequently stifled and not paid much heed to by other judges.
   • No binding guidelines: The present guidelines given by the attorney general have been made on an advisory capacity.
2. Social
   • Stigma: Women often are discouraged from such roles as it is dominated by men.
   • Maternal Health: The judiciary does not address various events in a lady judge’s life and may view it as an issue when women avail maternity leave.
   • Gender discrimination: Patriarchal mindset may also deter more women to be appointed in judicial offices.
   • Society reinforced mindset: Since Indian society has a patriarchal tilt, the judiciary also reflects such in its appointments.

 

Way Forward

1. Progressive Measures
   • Fixed Quotas: There may be a need for a fixed quota for women as in the case of Panchayati raj positions which have shown improvement in women empowerment. (Suggested by Standing committee on law and justice in 2015)
   • Incentives: High courts and lower courts must be incentivised by the upper judiciary and the governments for appointing women.
   • Inclusivity: More gender sensitisation must be conducted in law schools and judicial offices to promote the appointment of women in the future.
   • Public Participation: People can also be provided with bystander intervention training to change the culture of silence that fosters gender-related misconduct in the judiciary.
   • Reform in Ethical codes: Clear and comprehensive gender-sensitive guidelines must be incorporated into the ethical codes.
2. Punitive Measures

• Standardization of conduct: Setting up a clear standard of judicial conduct is difficult due to the existence of grey areas.
• Disciplinary Mechanisms: An independent disciplinary mechanism is a must for receiving complaints and investigating allegations.
• Monitoring: Monitor and critically examine the scope and extent of gender-related misconduct.
• Evaluation of Gender sensitivity: The assessment of an individual’s fitness to serve as a judge should include whether he has demonstrated gender sensitivity required of a judge.

1. Attorney General KK Venugopal’s Suggestions

• Internal Sensitization: Judges with patriarchal outlook must be sensitised to prevent them from passing orders objectifying women.
• Data Collation: Collection of data to determine the number of women judges in the lower judiciary and the year-wise number of senior designates by all High Courts.
• Representation: The SC Collegium must achieve at least 50% representation of women in all leadership positions.
• Training: Provide mandatory training to all lawyers on gender sensitisation.

Gender sensitisation and sound representation of women in the Indian courts can go a long way in ensuring an inclusive judiciary, which focuses on public welfare and a just system.

 

TRANSFER OF JUDGES

The transfer of judges of the Higher Judiciary has always been seen as an issue due to its impact on the justice process and subsequent independence of the judges who are often transferred for having dissenting opinions against the government or other judges.

Articles Involved: Article 222 of the Indian Constitution provides for the transfer of judges from one High Court to another. The same procedure is also followed even for the transfer of Chief Justice.

 

Need for Transfer of Judges

1. Genuine Cause: There can be a genuine need to transfer due to judges’ poor conduct and loss of integrity.
2. Safety of Life: Many times judges face a threat to life due to their decisions and transfers can be regarded as suitable in such cases.
3. Eliminate Emerging Nexus: Sometimes transfer of a judge becomes a compulsion because of the close nexus he develops with local politics.
4. BR Ambedkar’s Views:
   • Remove Local Interests: Transfers can be to import a new Chief Justice because it might be desirable to have a person unaffected by local politics or local jealousies.
   • Strengthen Federal Structure: Transfers from one High Court to another in order to import better talents which may not be locally available.

 

Issues Involved in Such Transfers

1. Institutional

• Lack of Clarity: There are no clear parameters detailing the circumstances which warrant the transfer of high court judges.

• Example: Justice Tahilramani transferred from Madras HC in 2019; the public was given no information on why the transfer was made.

• Agenda based motive: Transfers can occur just before a verdict and any dissenting judge may be transferred.
  • Example: Many judges were transferred during the emergency era because of their opposition to the government.
• Judicial Accountability: It reduces judicial accountability and thus questions the credibility of the judiciary as an institution.
• Due Process impacted: Frequent transfers can impact the due process of law and judicial processes.
• Opaque Collegium: The terms and functioning of the collegium are opaque, and thus the issue of transfer becomes unclear in many cases.
• Political-Judicial Nexus: Transfer of judges without due cause indicates to an existence of an executive and judicial nexus, which violates separation of powers.
  • Example: Justice Beg and Pathak were transferred during the emergency to elevate their chances of becoming Chief Justice as a reward.

2. Judges related Issues

• Effects independence: Transferring of judges also impacts their independence, and they may be forced to make decisions to please higher authorities and the political leaders.
• Reduces chances of becoming Chief Justice: Transfer can also impede promotions and seniority of judges.
  • Example: Justice Patel of Gujarat HC was transferred while being acting Chief Justice; his transfer to Karnataka made him second in seniority and thus crushed the chances of being the Chief Justice before retirement age.
• Reduces Morale: It impacts the morale of judges to do fierce decision making and act independently to safeguard justice.
  • Example: Judge Patel resigned after frequent transfers eliminated his chance of being Chief Justice.
• Punishment Postings: Many judges are transferred for having dissenting views and are transferred to the Northeast or Sikkim.
  • Example: Judge PD Dinakaran in 2008 was sent to Sikkim HC when he refused to go on leave after corruption charges were brought against him.
• Women: Many women judges have been transferred owing to their gender and supposed mentality of women not being able to work as judges.
  • Example: In 2019, the SC investigated the case where a woman trial judge was transferred to Sidhi from Gwalior arbitrarily.

 

Way Forward

1. Consent Clause: Justice Bhagwati had recommended that consent be taken from the concerned judge before he is being transferred.
2. Transparent Collegium: The collegium must ensure transparent proceedings and must release the reasons given for transfers.
   • Example: In 2017, SC started to publicize collegium recommendations by uploading them on the website.
3. Opportunity to Explain: In cases of transfers due to impunity or complaint, the judge must be given an opportunity to explain in line with natural justice principles.
4. Empowering Legislation: There can be various irregularities in the conduct of the high court judges, but the law is absolutely silent as to how to deal with such cases.
5. Supreme Court’s Views
   • Non-Punitive: Transfer of a judge cannot be a punitive measure. It cannot be a punishment in disguise.
   • Public Interest Clause: Transfer can be ordered only on ‘public interest’ for the ‘better administration of justice’.
   • Procedural: Transfer can be ordered by the President only on the basis of concurrence of the CJI after effective consultation.

 

1. Recommendations of Judge Tulzapurkar in SP Gupta Case

• Inefficiency: Transfer only to remedy any inefficiency arising due to unsuitable working conditions.
• Non-Cooperative: When a judge is unable to get along with other judges or colleagues.

 

TRIBUNALS

Tribunal is a quasi-judicial institution that is set up to deal with problems such as resolving administrative or tax-related disputes constituted with the objective of delivering speedy, inexpensive, and decentralised adjudication of disputes in various matters.

Constitutional Provisions 

Provisions for tribunals are provided through the 42nd amendment by creating Part XIV-A in the Constitution. It has two articles:

1. Article 323 A: It empowers Parliament to create Administrative Tribunals to adjudicate disputes regarding recruitment and conditions of service of persons appointed to public services at Union, State, and local level or with any other authority within India.
2. Article 323 B: It empowers Parliament or State Legislatures to set up tribunals for other matters, i.e., taxation, foreign exchange, import and export, industrial and labour, land reforms, ceiling on urban property, elections to Parliament and state legislatures, rent, and tenancy rights.
3. General features: While Article 323 A anticipates the establishment of tribunals for public service matters only, Article 323 B contemplates the establishment of tribunals for certain other matters.

 

Functions 

It performs a number of functions like adjudicating disputes, determining rights between contesting parties, making an administrative decision, reviewing an existing administrative decision, and so forth.

Administrative Tribunals

1. Formation: Administrative Tribunals was set up by an act of Parliament, Administrative Tribunals Act, 1985 under Article 323A of the Constitution.
2. Adjudications: It adjudicates disputes and complaints with respect to recruitment and conditions of service of persons appointed to the public service and posts in connection with the affairs of the Union and the States.
3. Three types of tribunals:
   • Central Administrative Tribunal: Established by the Central Government.
   • On request of State government: To the central government to establish SAT.
   • Joint Administrative Tribunal: Two or more states might ask for a joint tribunal. JAT exercises powers of the administrative tribunals for such states.
4. There are tribunals for settling various administrative disputes.

 

Central Administrative Tribunal

1. Formation:
   • The CAT was set up on 1 November 1985.
   • It has 17 regular benches, 15 of which operate at the principal seats of High Courts and the remaining two at Jaipur and Lucknow.

1. Members: The Members are drawn, both from judicial as well as administrative streams so as to give the Tribunal the benefit of expertise both in legal and administrative spheres.
2. Jurisdiction: It has jurisdiction to deal with service matters pertaining to the Central Government employees or of any UT, or local or other government under the control of the GoI, or of a corporation owned or controlled by the Central Government.
3. Appeal: The appeals against the orders of an Administrative Tribunal shall lie before the Division Bench of the concerned High Court.

 

State Administrative Tribunal 

The Central Government may, on receipt of a request from any State Government, establish, by notification, an Administrative Tribunal for the State to exercise the jurisdiction, powers, and authority conferred on the Administrative Tribunal for the State by or under the Administrative Tribunals Act, 1985.

 

Tribunals for Other Matters 

Under Article 323 B, the Parliament and the state legislatures are authorised to establish tribunals for other matters, i.e., Taxation; Foreign exchange, import and export; Industrial and labour; Land reforms; Ceiling on urban property; Elections to Parliament and state legislatures; Foodstuffs; Rent and tenancy rights.

 

Advantages of Tribunals

1. Procedural
   • Flexibility: They offer flexibility when compared to ordinary courts that have to adhere to strict procedures.
   • Fasten the decision-making process: To expedite decisions and to provide a forum that would be manned by lawyers and experts in the areas falling under the jurisdiction of the Tribunal.
   • Cheaper and faster: The tribunals take less time to solve the cases; as a result, the expenses are reduced. On the other hand, the ordinary courts are cumbersome and slow-going, making the litigation process expensive. Therefore, the tribunals are cheaper than ordinary courts.
   • Simple procedure: The procedure followed by the tribunals is simple and easy to understand, even for the layman.
   • Domain experts on a specialized subject: Provide inclusive and better judgement by taking all possible dimensions under consideration.
   • Diversity of subjects: They hear disputes related to the environment, armed forces, tax, and administrative issues.
2. Legal
   • Reduce Workload: The Tribunals were set up to reduce the workload of courts.
   • Reduce number of pending cases: Tribunals can take up the pending cases in their areas and can dispose of them at a faster pace due to expertise.

 

Issues

1. Institutional
   • Under executives: They operate under parent administrative ministries, remaining at their mercy for facilities, infrastructure, and rule-making.
   • Selection panel: The secretary of the respective Ministry is on the panel for selecting and reappointing the adjudicating members of the Tribunal and also has a role in disciplinary committees. For instance, the defence secretary is part of the committee for selection and re-appointment of members of the Armed Forces Tribunal.
   • Inadequate constitutional protection: The tribunals do not enjoy the same constitutional protection as HC.
   • Lack of autonomy: There is a lack of autonomy in the appointment and funding of tribunals.
   • Appointments: Appointments to tribunals are usually under the control of the executive. Thus, there is clear conflict of interest.
   • Accessibility: Accessibility is low due to scant geographic availability and lack of infrastructure for the tribunals to function efficiently.
   • Functional effectiveness: There is a lack of information available on the functioning of tribunals. Websites are routinely non-existent, unresponsive, or not updated.
   • Huge vacancies in dozens of tribunals: Have defeated the very purpose for which these specialized quasi-judicial forums were created.
2. Legal and Political

• Undermining the Authority of Judiciary: Tribunals have largely replaced HC for disputes under the various Acts.
• Against the separation of powers: It is seen as encroachment of judicial branch by the government.
• Appeal: More appeals from tribunals have inevitably managed to enter the mainstream judicial system. In the Chandra Kumar case (1997), the Supreme Court held that appeals against the orders of a tribunal could be made in the High Court.
• High Pendency: Many tribunals also do not have adequate infrastructure to work smoothly and perform the functions originally envisioned, leading to high pendency rates, thus proving unfruitful to deliver quick justice.
• Overcrowding of tribunals: Leads to “Tribalization of justice” as observed by the Supreme Court.

 

New Rules for Tribunals in 2020 

Union Ministry of Finance has framed new rules prescribing uniform norms for the appointment and service conditions of members to various Tribunals. The new rules have been framed by the government as the previous Rules of 2017 were struck down by the Constitution Bench of the Supreme Court in November 2019 in the case Rojer Mathew vs South Indian Bank.

1. About New Rule
   • The ‘Tribunal, Appellate Tribunal, and other Authorities Rules, 2020’, were framed by the Ministry of Finance in exercise of powers under Section 184 of the Finance Act 2017.
   • These apply to 19 Tribunals including CAT; Income Tax Appellate Tribunal, Customs, Excise, Service, Tax Appellate Tribunal, etc.
   • However, Foreigners Tribunals are not covered.
2. Appointment
   • Appointments to the above Tribunals will be made by the Central Government on the recommendations by the “Search cum Selection Committee” composed of:
     • CJI or judge nominated by him
     • President/chairperson of the tribunal concerned
     • Two government secretaries from the concerned ministry/department.
3. Removal: The “Search Cum Selection Committee” has the power to recommend the removal of a member and also to conduct an inquiry into allegations of misconduct by a member.
4. Qualifications for Tribunal Members: Only persons having judicial or legal experience are eligible for appointment.
5. Term of Office: Rules also provide a fixed term of four years to the Tribunal members.
6. Independence: The condition in the 2017 Rules (which were set aside by the Court) that the members will be eligible for re-appointment has also been dropped in 2020 Rules.

Issues With the New Rules

1. Conflict of Interest: The new rules do not remove the control of parent administrative ministries (ministries against which the tribunals have to pass orders) over tribunals.
   • Example: Armed Forces Tribunal functions under the same ministry which is a party in litigation. This is against the spirit of Natural Justice.
2. Unwarranted Influence of Executive: The new rules also ensure that the secretary of the ministry against which the tribunal is to pass orders sits on the committee for selecting adjudicating members of the same tribunal. This system was termed as “mockery of the Constitution” by SC in Madras Bar Association case, 2014.
3. Affecting Independence of Members: The new rules provide for a retirement age of 65 years even for former judges who retire at 62 from the High Courts (HCs), which gives them at best a three-year tenure. This is against the minimum five to seven years tenure mandated by SC in the Union of India vs R. Gandhi case, 2010 to ensure continuity.
4. Diluting Independence: Further, the bar on employment with the government after retiring from tribunals has been removed. Thus, affecting the independence of members.
5. Inconsistent with SC rulings: New rules contain ambiguous clauses stating that any person with experience in economics, commerce, etc., can be appointed a member of certain tribunals. This may allow even members with non-judicial/legal backgrounds to become chairpersons of tribunals, contrary to SC ruling in the R Gandhi case.

 

TRIBUNALS REFORMS (RATIONALISATION AND CONDITIONS OF SERVICE) ACT (2021)

Key Provisions 

It seeks to empower the Central Government to make rules for qualifications, appointment, term of office, salaries and allowances, resignation, removal, and other terms and conditions of service of Members of Tribunals.

• Amendments to Finance Act (2017): The act removes provisions on the composition of selection committees and term of office have been included in the act.
• Search-cum-selection committees: The Chairperson and Members of the Tribunals will be appointed by the central government on the recommendation of a Search-cum-Selection Committee. State administrative tribunals will have separate search-cum-selection committees.
• Eligibility and term of office: The act provides for a four-year term for tribunal members. It sets the upper age for the chairperson at 70 years and for the other members at 67 years.
• Uniform pay and rules: The act provides for uniform pay and rules for the search and selection committees across tribunals.
• Removal of tribunal members: It also provides for the removal of tribunal members. It states that the central government shall, on the recommendation of the Search-cum-Selection Committee, remove from office any Chairperson or a Member.
• Three-month duration: The central government has to “preferably” decide on the recommendations of the search-cum-selection committee within 3 months of the date of the recommendation.

 

Issues with the Act

1. More power to central government: The Union government has more control over the appointment process and has been given the power to remove tribunal members.
2. Threat to judicial independence: By giving the government wide powers regarding appointments, service conditions, salaries, etc., of members of key tribunals.
3. Separation of Powers: Section 3 (1) of the act bars appointments to tribunals of persons below 50 years of age. This undermines the length/security of tenure and violates both judicial independence and the principle of separation of powers.
4. Against court decision: It brought back the very same provisions in the ordinance which were struck down by the Supreme Court in Madras Bar Association case.

• The minimum age requirement of 50 years still finds a place in the law.
• The tenure for the Chairperson and the members of the tribunal remains four years.

 

Need of National Tribunals Commission

• Stop Executive interference: Executive interference in the functioning of tribunals, especially in the appointment and removal of tribunal members, can be reduced.
• Administrative support: It will provide administrative support across all tribunals.
• Set standards: It would set performance standards for the efficiency of tribunals and their own administrative processes.
• Independent recruitment body: It will function as an independent recruitment body to develop and operationalize the procedure for disciplinary proceedings and tribunal member appointments.
• Others: NTC may ensure the functional, operational, and financial independence of tribunals.

 

Way forward

• Appointment: Appointments to members should be apolitical; it should be done by an impartial and independent selection committee.
• Autonomy: Tribunals should be provided due autonomy with proper funding mechanisms.
• Qualifications: In Union of India vs. R. Gandhi (2010) case, the Supreme Court said that when the existing jurisdiction of a court is transferred to a tribunal, its members should be persons of a rank, capacity, and status as nearly as possible equal to the rank, status, and capacity of the court.
• Accessibility: Tribunals must have benches in different parts so as to ensure that they are accessible.
• Independence: The administrative support for all Tribunals should be from the Ministry of Law & Justice. Neither the Tribunals nor its members shall seek or be provided with facilities from the respective sponsoring or parent Ministries or concerned Department.

Moreover, the Central government, under The Finance Act of 2017, merged eight tribunals according to functional similarity. The bill also empowers the Central government to lay down the rules for appointment of tribunal members across a cross-section of tribunals.

 

ARBITRATION IN INDIA

Arbitration is a legal mechanism encouraging settlement of disputes between two or more parties mutually by the appointment of a third party whose decision is binding on the parties referring the said dispute.

 

Data (Shows the need of Arbitration) India has an estimated 47 million cases pending in various courts as of May 2022, as per the Department of Justice. 25% of cases are more than 5 years old. It has been estimated that 12 million Indians await trial in criminal cases throughout the country. On average, it takes twenty years for a real estate or land dispute to be resolved. The dispute resolution process has a huge impact on the Indian economy and global perception on “doing business” in India. More than half of India’s pending cases were filed in lower courts of U.P., Maharashtra, Bihar, and W.B.

 

Current Incidences

• Union Cabinet approved signing of the UN Convention on International Settlement Agreements resulting from mediation by India in 2019.
• Signing of the Convention will boost the confidence of the investors and shall provide a positive signal to foreign investors about India’s commitment to adhere to international practice on Alternative Dispute Resolution (ADR).
• Recently, Parliament passed the Arbitration and Conciliation (Amendment) Act, 2021.

 

Legal Provisions

• The Arbitration Act, 1940.
• The Arbitration (Protocol and Convention) Act, 1937.
• The Foreign Awards (Recognition and Enforcement) Act, 1961.

                     

• The Legal Services Authorities Act was passed in 1987 to encourage out-of-court settlements.

• Arbitration in India is regulated by the Arbitration and Conciliation Act, 1996 (It was further amended in 2015, 2019, and in 2021).
• In 1999, the Civil Procedure Code Amendment Act of 1999 was passed inserting Section 89 in the Code of Civil Procedure 1908, providing for the reference of cases pending in the Courts to ADR, which included mediation.
• Procedure for plea-bargaining was included in the Code of Criminal Procedure in 2005. Plea-bargaining means pre-trial negotiation between the accused and the prosecution during which the accused agrees to plead guilty in exchange for certain concessions by the prosecution.

 

Tools of ADR (Sec 89 of CPC)

• Arbitration: It is a legal technique for the resolution outside the courts, wherein the parties to a dispute refer it to one or more persons (the “arbitrators”, “arbiters,” or “arbitral tribunal”), by whose decision (the “award”) they agree to be bound.
• Conciliation: A method whereby a third party, who is usually but not necessarily neutral, meets with the parties and assists them to find a way to settle their dispute.
• Judicial settlement, including settlement through Lok Adalat.
• Mediation: It is a procedure in which the parties discuss their disputes with the assistance of trained impartial third person(s) who assists them in reaching a settlement.
• Negotiations (Not in CPC): A non-binding procedure in which discussions between the parties are initiated without the intervention of any third party with the object of arriving at a negotiated settlement to the dispute.

 

Amendment Provisions (After Amendment Act of 2019)

• Arbitral Institution: An arbitral institution designated by the Supreme Court or a High Court under the Act will be established.
• Timely conduct of proceedings: Under new section 23(4), the statement of claim and defense shall be completed within a period of six months from the date of appointment of the arbitrator.
• Confidentiality: As per the new Section 42A, the arbitrator and the arbitral institution shall maintain confidentiality of all arbitral proceedings except the award.
• Arbitration Council of India: It establishes ACI as an independent body.

 

Amendment Provisions (After Amendment Act 2021)

1. Unconditional Stay on Awards: An unconditional stay on enforcement of arbitral awards where the underlying arbitration agreement or contract or making of the arbitral award are induced by fraud or corruption.
2. Qualification of arbitrators: It does away with the 8th Schedule of the Act which contained the necessary qualifications for accreditation of arbitrators.
3. Added a proviso in Section 36 of the Arbitration Act: Will come into effect retrospectively from October 23, 2015.
   • As per this amendment, if the Court is satisfied that a prima facie case is made out that the arbitration agreement or contract which is the basis of the award was induced or effected by fraud or corruption, it will stay the award unconditionally pending disposal of the challenge made to the award under Section 34.

 

Benefits through Act

• Global Hub: It will help to make India a global hub of arbitration across the globe and make New Delhi a centre for International arbitration.
• Consolidation: It will help in the consolidation of domestic arbitration, international commercial arbitration, and enforcement of foreign arbitral awards.
• Speed Up: To speed up the resolution of commercial disputes.
• Cost effective: To make it more cost-effective with minimum Court intervention.
• Release the burden of judiciary: The judicial system has been burdened with a huge backlog of cases (almost 4.7 crore cases are pending), which can be eased.
• Time limit: Arbitration involves adherence to time limits and less time taken in resolving disputes, encouraging institutional arbitration, and discouraging frivolous applications.
• Improve ease of doing business in India: India ranked least in enforcing contracts; this act would help to improve India’s ranking in dispute resolution.

 

Advantages of Arbitration

1. Procedural

• Arbitration promises privacy: Helping maintain confidentiality as the resolution of disputes takes place usually in private.
• Specialized expertise: The possibility of ensuring that specialized expertise is available on the tribunal in the person of the arbitrator, mediator, conciliator, or neutral adviser.
• Better result: The result often leads to creative solutions, sustainable outcomes, greater satisfaction, and improved relationships.
• Less time consuming: People resolve their disputes in a shorter period compared to courts.
• Free from technicalities: It is free from the technicalities of courts; informal ways are applied in resolving disputes.

2. Social

• Do not hamper personal relationships: It offers greater direct control over the outcome and prevents further conflict and maintains a good relationship between parties.
• Freedom of expression: People are free to express themselves without any fear of court or law. They can reveal the true facts without disclosing them to any court.
• Preserve interest: It preserves the best interest of the parties.
• Pandemic time importance: ADR has assumed greater importance during the pandemic, as many experts are demanding a more robust ADR mechanism in India to speed up the justice delivery system.

3. Economic

• Cost effective method: It saves lots of money compared to undergoing litigation.
• Increase investment: Arbitration puts less pressure on courts for petty cases, which helps them to solve more important cases. This leads to better arbitration mechanisms for foreign investors.

4. Legal

• Reduce pendency of cases: Since small and petty cases can be solved outside, they prevent clogging the judicial process in more significant cases.
• Legal awareness: ADR encourages the participation of people in the process of dispute resolution and creates legal awareness among them.

 

Challenges of institutional arbitration in India

• Lack of credible arbitral institutions: As they are mostly informal, they lack power of enforcement.
• Lack of governmental support: There is little or no governmental support for institutional arbitration.
• Judicial attitudes: In general, the judiciary sees these arbitrations as less legal.
• Lack of effectiveness: Only effective when both parties are ready to cooperate with each other.
• Lack of management: Issues relating to the administration and management of arbitral institutions.
• Lack of awareness: Among the people about the availability and procedures of mechanisms.
• Sceptical attitude: There is scepticism among parties about the process and result of ADR. Many of the litigants who have tried ADR are not satisfied and often return to formal courts.
• Difficulties in finding a neutral arbitrator: It can be hard to find a neutral arbitrator, as the unsatisfied party may blame the arbitrator for bias and unfairness.
• Other: Perceptions regarding arbitrators and expertise issues relating to resources and government support, lack of initial capital, poor and inadequate infrastructure, lack of properly trained administrative staff, and lack of qualified arbitrators.

 

Way Forward

• The COVID-19 pandemic, which caused the shutdown of most court proceedings, presents an important opportunity for India to build a strong ADR mechanism.
• Efforts by the judiciary, lawyers, government, and litigants are needed to create an ecosystem conducive to mediation.
• Attitudinal change: People need to adopt ADR mechanisms with confidence and trust.
• More speedy and successful ADR solutions: This will build confidence among litigants and make them opt for ADR mechanisms.
• Government leadership: Given that governments are the most prolific litigants in the courts, they can lead by example, unburden the courts, and build a culture of ADR.

• There is a need to build infrastructure for ADR procedures, skilling of lawyers in ADR, providing required manpower, etc.
• The ADR can now ride the digitization revolution and bring ADR to the doorsteps of the litigant.

 

The judicial system is burdened with a massive backlog of cases. Recently, it is becoming standard practice for parties to include arbitration clauses in all large transactions and agreements. Recent amendments will make the arbitration system more streamlined.

 

LOK ADALAT

‘Lok Adalat’ means ‘People’s Court’ and is based on Gandhian principles. It was given statutory status under the Legal Services Authorities Act, 1987.

Data Genesis: The first Lok Adalat camp was organized in Gujarat as a voluntary and conciliatory agency. Four tiers: State Authority Level, High Court Level, District Level, and Taluk Level. Types: National Lok Adalats, Permanent Lok Adalat, and Portable or Mobile Lok Adalats. Organized under: National Lok Adalats (NLAs) organized under the aegis of NALSA settle a huge number of cases across the country in a single day.

 

Importance of Lok Adalat

1. Parties
   • Ease of communication: Parties can directly interact with the judge even if they are represented by their lawyer.
   • Judgement Binding: It is binding on the parties, which does not cause a delay in the final settlement of disputes.
   • Uncomplicated: The procedure followed by Lok Adalat is simple, non-technical, and informal.
   • Collaborate with Civil Society: Disposes of cases via collaborative and participatory efforts of lawyers, social workers, and administrative authorities actively involved in dispute resolutions.
   • Lawyer not needed: Lawyers are not essential during the conciliation process like in regular courts, so parties are less harassed.
2. Judiciary
   • Flexibility: There is no strict application of procedural laws while assessing the claim by Lok Adalat.
   • Reduces unwanted delays: Aims for mutual settlements to reduce the chances for further need for appeals.
   • Reduces pendency of cases: Reduces the burden of the formal judiciary, enabling it to handle more serious cases as an ADR example. Lok Adalats disposed of 52,46,415 cases between 2016 and 2020.
   • Award non-appealable: Deemed a decree of a civil court, final, and binding on all parties. No appeal lies before any court of law.
3. Society
   • Substantive Justice: Aims to bring justice to the poor and underprivileged people and promote the welfare of the people.
   • No court fee: No court fee even if the case is already filed in a regular court. The fee paid will be refunded if the dispute is settled.
   • Justice to vulnerable section: It provides justice to those people who are hesitating to file a case or visit court. For example – Senior Citizens, women, tribals etc.
   • Justice to the Doorsteps: It brings justice to the doorsteps of people by organising at various places like villages, slums, industrial areas, labour colonies etc.
   • Spread Awareness: This mechanism helps spread awareness at the grassroots level about the fundamental rights and duties mentioned in numerous legislation.
   • Promotes local unity: This mechanism promotes local unity and secures substantial equity and social justice.
   • Benefits Everyone: A system where all the parties to the dispute have something to gain.

 

Challenges faced by Lok Adalat

1. Institutional
   • Reluctant Lawyers: Lawyers are sometimes reluctant to refer the matter for settlement in Lok Adalat.
   • Complexity: In Lok Adalats, repeated sittings at short intervals with the same judge are almost not possible, which breaks the continuity of the deliberations.
   • Forced Injustice: Many times, victims are forced to settle at lower compensation and warnings.
   • Partial at Times: It cannot be forced on any party that the matter has to be decided by the Lok Adalat. The cases at the Lok Adalat are decided by the consent of both parties.
2. Parties
   • Imposed Justice: In many cases, compromises are imposed on the poor, who often have no choice but to accept them.
     • Example: Some litigants have to accept discounted future values of their claims instead of their just entitlements, or small compensations, just to bring a long-pending legal process to an end.
   • Patriarchy: Poor women under the so-called ‘harmony ideology’ of the state are virtually dictated by family courts to compromise matrimonial disputes under a romanticized view of marriage.

 

1. During Proceeding
   • Lack of Confidentiality: Lok Adalat proceedings are held in the open court and any member of the public may witness these proceedings. Thus, the element of confidentiality is also lacking.
2. Political Party
   • Judges are Pressurized: Judges are pressured to quickly dispose of the cases for political gains, leading to limited consideration of the parties’ rights and needs.
   • Diminished party autonomy: It cannot be said that the parties remain in absolute control of the proceedings, in contradiction to what happens in mediation.

 

Function /Role/power of Lok Adalat

• Alternate Dispute Resolution (ADR): The system of Lok Adalat has proved effective for resolving disputes in a spirit of conciliation outside the courts.
• Regulate Negotiation: It is based on settlement or compromise reached through systematic negotiation.
• Economical: No court fee is payable. If any court fee is paid, it will be refunded.
• Powers: The award passed by the Lok Adalat is deemed to be a decree of a civil court.
• Non-appealable: An award passed by Lok Adalat is final and no appeal is maintainable from it.
• Role of Lawyers: The lawyers also can appear on behalf of the party.

 

Way forward

1. Local-level Awareness
   • Literacy Programs: Legal literacy and legal aid programs should be provided for the poor and the socially and economically marginalized societies.
   • Awareness Camps: Conducting awareness camps at the grassroots levels and mass media can be utilized for this purpose.
   • Educate Volunteers: Encourage and educate people to participate in the proceedings of Lok Adalat voluntarily.
2. Bringing Lawyers on Board
   • Improve legal aid Quality: The quality of legal aid provided by lawyers must be evaluated to improve them and undergo a mandatory review.
   • Increase remuneration: The remuneration offered by legal service authorities to lawyers should be increased so that they are encouraged to provide effective legal assistance to the needy.

 

1. Expanding Jurisdiction
   • Expand the area of cases: The jurisdiction of permanent Lok Adalats can be expanded to include areas like business disputes or conflicts where the public at large is involved and matters where the government is involved either directly or indirectly.
2. Cultural Reforms
   • Establishing balance: Culturally, there should be a balance between a formal and informal forum so that people are encouraged to seek redressal from Lok Adalats.
   • Protect indigenous people: These courts can address many social injustices in rural culture by “indigenizing” some protections of the official judicial system.
   • Accommodating cultural diversity: Given India’s diversity, it is better to incorporate characteristics and processes of conciliation specific to each locality.
3. Structural Reforms
   • Regularity: Mobilize Lok Adalats so that they can be held more regularly.
   • Improve Facilities: Staff, funding, and facilities must be provided for it to run more effectively and make it more structurally sound.
   • Incorporate case Specialist: Specialists of the concerned disputes can be incorporated into this mechanism.
   • Free Training to social workers: Social workers must be provided with free legal training to help the needy avoid being exploited by lawyers.

 

Lok Adalats play a very important role in advancing and strengthening “equal access to justice.” While the primary function of Lok Adalats is to clear the backlog (with reports showing more than 47 crore pending cases in Indian courts), other functions cannot be ignored. The concept of Lok Adalat has been a success in Indian practice.

 

GRAM NYAYALAYAS

Gram Nyayalayas are established under the Gram Nyayalayas Act, 2008, for speedy and easy access to the justice system in rural areas of India.

 

Background

• 114th Law Commission report: It recommended the establishment of Gram Nyayalayas for providing speedy, substantial, and inexpensive justice.
• Subsequently, the Parliament of India passed the Gram Nyayalayas Act, 2008, providing for its establishment.

 

Constitutional and Legal Provisions

• Article 39-A: Mandates for free legal aid to the poor and weaker sections of society.
• Section 3 of the Gram Nyayalayas Act, 2008: Provides for the establishment of gram nyayalayas.

Data [Source: National Federation of Societies for Fast Justice] Limited implementation: It stated that against a targeted requirement of 2,500 Gram Nyayalayas, which were to be established by the end of the 12th five-year plan period in 2017, only 476 had been notified by just 15 state governments till March, 2022. What’s worse is that as of March 2022, only 257 Gram Nyayalayas are functional in India in 10 states. No GN in North East: Moreover, not a single Gram Nyayalaya has become operational in the North-Eastern States.

 

Structure

1. Appointment: The State Government shall determine the nature and categories of the officers and other employees required to assist a Gram Nyayalaya in the discharge of its functions.
2. Nyayadhikari: Gram Nyayalayas are presided over by a Nyayadhikari, appointed by the State Government in consultation with the High Court.
3. Power & Salary: The Nyayadhikari will have the same power, enjoy the same salary and benefits of a Judicial Magistrate of First Class.
4. Judgement:
   • They have both civil and criminal jurisdiction over the offences.
   • The Gram Nyayalaya shall have all the powers of a civil court. The Gram Nyayalaya shall not be bound by the Code of Civil Procedure, 1908, and shall be guided by the principles of natural justice.
5. Appeal: An appeal shall lie from the judgment or order of a Gram Nyayalaya to the District Court in case of civil cases and Sessions Court in criminal cases.
6. Establishment: Gram Nyayalayas are established generally at the headquarters of every Panchayat at the intermediate level or a group of contiguous panchayats in a district where there is no panchayat at the intermediate level.

 

Benefit of Gram Nyayalayas

1. Legal
   • Faster proceedings: Provision for summary procedures fastens the judicial proceedings.
   • Reduce burden: It takes the burden away from Taluka and District courts by providing alternate dispute redressal mechanisms guaranteed by law.
   • Ease of operation: Power to try both civil and criminal cases ease of operation for the mobile courts.
   • Active engagement: Focus on the principle of natural justice makes the platform less formal and makes it easy for the rural population to cooperate and actively engage in judicial procedures.
   • Effectiveness of mediation: Mediation saves resources and time for all parties involved as well as the judicial system. It is no wonder then, that it has become an ever more valuable dispute resolution tool.
   • Reducing dependency on extra-constitutional forums of justice
2. Social
   • Doorstep justice delivery: It brings justice to the doorsteps of rural India. It means that it is available at Panchayat level and disposes of the work by going to the villages.
   • Social harmony: Focus on conciliation takes care of rural societal harmony and prevents possible enmity due to rigorous judicial proceedings among the parties.
   • Cost effective: Gram Nyayalayas aim to provide a cost-effective forum at the grassroots level for the poor living in villages to settle legal matters.
3. Political
   • Fulfillment of Art 39-A: It moves forward in the fulfillment of Article 39A of the Constitution which directs the state to provide for the free legal aid for the poor.

 

Issues

1. Administrative

• Bureaucratic apathy: There is no regular cadre maintained for the post of a Nyayadhikari, which is paralleled with the First Class Magistrate. Thus, bureaucratic renovation is required.
• Non-performance: The lack of necessary requisites of Notary and stamp vendors, the reluctance of lawyers and police officials to invoke jurisdiction of Gram Nyayalayas adds to the reasons for non-performance.
• No-scientific analysis: There is no scientific analysis of performance and effectiveness of Gram Nyayalayas making it just another bureaucratic exercise and not a pathbreaking alternate dispute resolution mechanism.
• Lack of awareness: The major stakeholders, the rural litigants, are not aware enough and have a paucity of knowledge regarding Gram Nyayalayas. Sufficient awareness drives have not been conducted to make the target population cognizant about this institution.

 

2. Legal

• Ill-defined jurisdiction: There is ambiguity and confusion regarding the specific jurisdiction of Gram Nyayalayas, due to the existence of alternative forums such as labor courts, family courts, etc.
• Negligible dispensation of cases: The number of cases disposed by Gram Nyayalayas is negligible and they do not make any substantial difference in the overall pendency in the subordinate courts.
• Not effective in reducing burden: One of the main intentions behind establishing these courts was speedy delivery of justice and reducing the burden of the upper courts. However, due to rampant appeals against the decisions of the Nyayalayas, district courts are still weighted with lots of pending cases.

3. Physical and infrastructural

• Location issues: They are generally located at cities and towns, which doesn’t provide any utility to villagers.
• Lack of infrastructure: Like buildings, office spaces, and related equipment.
  • Lack of manpower resources, notaries, stamp vendors, etc., at sub-district level.
  • Financial constraints: Establishing courts at each one of the 2.6 lakh gram panchayats would involve huge expenditure by state governments.

 

Way forward

• Specific jurisdiction: Clearly specifying the jurisdiction of Gram Nyayalayas and re-defining it to remove any ambiguities.
• Regular cadre: Law commission also mooted the idea of establishing a regular cadre of Gram Nyayadhikaris.
• Training of Gram Nyayadhikari: Apart from the legal and procedural requirements of Gram Nyayalayas, training may also include the local language of the community amongst whom they are posted.
• Simplified process: Conducting procedures in the local language and with simpler procedures.
• Awareness: Creating awareness amongst stakeholders via seminars, press releases, etc.
• Accessibility: Establishing permanent Gram Nyayalayas at the intermediate level in a suitable location proving easy access to the common people.
• Infrastructure: Providing proper infrastructural building, staff, etc., and provisioning them in the state budget.
• Scientific assessment: Performance must be done periodically by respective High Courts and policy institutions like NITI Aayog to put things in perspective.

 

CONTEMPT OF COURT

Contempt of court is the offence of being defiant or disrespectful to the court of law. Being impolite to legal authorities in the courtroom, or rebelliously failing to follow a court order may draw Contempt of Court proceedings.

Constitutional Provisions

• Article 129: Grants Supreme Court the power to punish for contempt of itself.
• Article 142(2): Enables the Supreme Court to investigate and punish any person for its contempt.
• Article 215: Grants every High Court the power to punish for contempt of itself.

 

Types 

There is no explicit definition of contempt of Court but section 2(a) of the Contempt of Courts Act, 1971 defines contempt of Court to mean civil contempt or criminal contempt.

1. Civil Contempt: Section 2(b) defines civil contempt as willful disobedience to any judgment, decree, direction, order, writ, or other process of a court or willful breach of an undertaking given to a court.
2. Criminal Contempt: Section 2(c) defines criminal contempt as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:
   • Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court.
   • Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding.
   • Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

 

Current Incidences

• Prashant Bhushan case: SC of India initiated the proceedings for criminal contempt of court against lawyer-activist Prashant Bhushan. The contempt charges were lodged in the context of the comment made on social media, targeting the CJI SA Bobde.
• Kunal Kamra case: Kunal Kamra, a stand-up comedian, faced contempt of court charges for his tweets following the SC’s decision to grant interim bail to television anchor Arnab Goswami.
• Against comic artist Rachita Taneja: Rachita Taneja faced charges for her alleged objectionable tweets against the apex court.

 

Arguments in Favour of CoC

• Upholding the credibility: Upholding the credibility of the judiciary in a democracy is imperative in order to ensure that the executive doesn’t endanger the independence of the judiciary.
• Reasonable restricts: The Constitution under article 19(1) provides contempt of court as a reasonable restriction for curbing the freedom of speech and expression. Hence, contempt based on criticism has a constitutional sanction.
• Stop politically motivated criticism: Many times, the criticism of the judicial verdicts may be politically motivated.
• Ensures Public Trust: It insulates the institution from unfair attacks and prevents a sudden fall in the judiciary’s reputation in the public eye.
• Protects Judges: Contempt powers help judges to do their duties of deciding cases without fear, favour, affection, or ill will.
• Safeguards the status & dignity of courts: Judicial Contempt power is needed to punish wilful disobedience to court orders as well as interference in the administration of justice and overt threats to judges.
• High Number of Contempt Cases: There still exists a high number of civil and criminal contempt cases pending in various HCs and the SCs. The high number of cases justifies the continuing relevance of the contempt of court law.
• Avoid simultaneous media trial: Today, media misuse their power to conduct simultaneous trials which hampers the proceedings of courts.

 

Arguments Against CoC

• Curtail freedom of expression: The contempt powers put a restriction on the freedom of speech and expression provided under article 19(1).
• Discourage genuine criticism: The contempt proceedings may disincentivize genuine criticism of a judicial verdict in the media.
• Against natural justice: Contempt powers are against the principle of natural justice as it is a classic case of Judges being judges in their own cause. (No man should be judge in his own case).
• Involve discretions: Contempt powers have not been objectively defined; therefore, some feel that they have been misused sometimes.
• No room for good criticism: In a free democratic society, criticism of the judiciary is inevitable; it should not be a matter of concern as long as it does not obstruct the administration of justice.
• Period of Limitation: No court shall initiate contempt proceedings after the expiry of one year from the date on which contempt is alleged to have been committed.
• Wide Scope of Contempt: The definition of criminal contempt in India is extremely wide and can be easily invoked. Also, suo motu powers of the Court to initiate such proceedings only serve to complicate matters.
• Colonial Hangover: Contempt powers of the judiciary started during colonial rule and continued in India, whereas England abolished the offence of “scandalising the court” in 2013.
• Wrong Signal: These cases show that the country’s highest court is not tolerant of its outspoken critics and that it is highly sensitive to criticism (not the spirit of Democracy).
• Distorted Priorities of Apex Court: There are dozens of constitutional cases that need to be desperately addressed, such as CAA, the electoral bonds matter, or the issue of habeas corpus petitions form J&K, but SC has chosen to file case based on two tweets of a lawyer Prashant Bhushan. 

 

Landmark Judgments

• P. N. Duda case: The Supreme Court ruled that judges should not misuse contempt jurisdiction to uphold their own dignity.
• S. Mugolkar v. Unknown (1978): The SC asserted that the judiciary should not be immune from fair criticism; contempt action should be used only against misstatements made with malicious intent.
• Re Arundhati Roy case: The court emphasized that fair criticism does not equate to contempt.
• Bar Association vs. Union of India & Anr.: The SC stated that Parliament cannot strip the inherent power of the Court of Record to punish for contempt.
• Indirect Tax Practitioners’ Association v. R.K. Jain: The SC allowed truth as a defense for contempt if (i) it is in public interest and (ii) the request to use the defense is bona fide.

 

International Status

• England: Abolished the law of “scandalizing the court” in 2013.
• Canada: Applies the contempt test only for real, substantial, and immediate threats to the administration.
• United States: Courts no longer use contempt for comments on judges or legal matters.

 

Way Forward

• Minimize discretion: Address the loopholes in discretion.
• Identify the difference: Clearly distinguish between contempt of court and contempt of judge.
• Punishment as a last resort: Ensure punishment is a last measure with a second opinion.
• Broad-shouldered approach: Encourage constructive criticism rather than stifling it, maintaining public confidence.
• Balance: Maintain a balance between judicial protection and accountability.
• Law Commission of India: Recommended retaining the provision but revising it to limit to civil contempt, i.e., willful disobedience.

 

ONLINE JUSTICE DELIVERY

Background: Due to the COVID-19 pandemic, traditional access to justice faced severe disruptions. The Supreme Court of India directed all courts to use video conferencing extensively to maintain social distancing and continue judicial operations effectively.

 

Data As of May 2022, India had 47 million pending cases across various courts (source: Department of Justice).

 

Current Incidences [Case Studies]

Current Incidences	Details
Live Streaming by HC	On March 30, 2020, Kerala HC created history by conducting proceedings via video conferencing and live streaming. Judges and law officers participated from their respective offices. This practice has also been adopted by the High Courts of Gujarat, Orissa, Karnataka, Jharkhand, Patna, and MP.
Pilot project in Delhi	A pilot virtual court was launched in August 2018 for traffic offences, proving to be a success.
Punjab and Haryana	Judges utilized virtual courts for consulting doctors from PGIMER via video conferencing, reducing time and saving resources for the exchequer.
Paper-less proceedings	High Courts in Delhi and Punjab have adopted paperless processes with e-Filing and scanned documents.
SC live streaming	The Supreme Court has started live streaming Constitution Bench proceedings to promote transparency and accessibility.

 

Benefits

1. Administrative

• Minimize the delay: Entire information related to a particular case would be available online so there will be no delay to find the respective case file and related updates.
• Increase productivity of lawyers: As there will be no regular visits to courts and long waiting hours. If this practice is extended to other civil cases, efficiency will double in judicial functioning.
• Save time in paper work: Through integrated system data sharing between different courts and various departments will be made easy.

2. Governance

• Easy accessibility: Registered attorneys can file their case document directly from their home or office. No traffic congestion or messenger services are required.
• More citizen friendly: Virtual courts are an improvement over traditional courts as they are more citizen-friendly and offer greater access to justice.
• Transparency: Transparent and efficiency will increase, in addition to that protects the interests of witnesses, reduces the backlog of pending cases, and most importantly reduces the number of unscrupulous activities.
• Online status: Litigants can view the status of their case online through various channels without going physically.

3. Social

• Minimize the covid cases: No physical presence and congregation of people would help to minimize the spread of covid infection.
• Vast reach: Will ensure easy access to justice at affordable costs to all sections of society.
• Helpful for socio-economic weaker section: It will help socially backward and poor people to access justice at low or no cost.

4. Economically

• Cheaper: It is cheaper and faster besides addressing locational and economic handicaps.
• Reduced physical contact will limit corruption: Person can file the complaint electronically through e-Filing and also pay the Court Fees or Fine online.

5. Technological

• Joining hands with global: World is moving towards digitalization and judicial system would not like to be left behind. Online justice delivery would align India on global lines.
• No delay in accessing information: Entire information related to a particular case would be available online so there will be no delay to find the respective case file and related updates.

 

Challenges

1. Physical
   • Poor Infrastructure: Accessibility of internet in required speed is still a distant dream for many local courts.
   • Consultation issues: Lawyers occasionally need to consult their client or the instructing advocate; judges also need to consult each other during a hearing.
2. Procedural
   • Process complications: The process of e-filing a document is a difficult process. All the evidence cannot be produced in a digital format.
   • Technical illiteracy: Digital divide and illiteracy make it difficult for uneducated people to access justice.
   • Operational challenges: The online local courts have a different medium of communication. Judges are not used to consciously facing a camera while hearing a case.
   • Problem of authenticity: There will be a problem of authenticity of the evidence received through the video and/or audio transmissions.
   • Vagueness of identity: The identity of the witness and/or individuals subject of the hearings may be questioned.
3. Technological
   • Cyber-security: Cyber-security and hacking will be a huge concern.
   • Lack of access to technical gadgets: Almost 50% of lawyers, particularly in district courts, do not have any laptop or computer facility so their participation in the virtual courts will be either very less or not at all.
   • System crash or fault: Virtual court hearings, especially during peak hours when many people log into the video-conferencing system, are subject to frequent crashes of the system and one glitch can spoil the entire proceeding.
   • Privacy of data: There are concerns that virtual courts will compromise the privacy of data as well as the confidentiality of discussions and court proceedings, due to the usage of third-party software applications, which are prone to hacking and manipulation.

Important Judgements

• Naresh Shridhar Mirajkar v. State of Maharashtra: SC held that public trial in open Court is undoubtedly essential for the healthy, objective, and fair administration of justice. It is instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice.

• Indira Jaising vs. Secretary General of Supreme Court (2018): The significance of live streaming of court proceedings as an extension of the principle of justice had been re-emphasised unequivocally.

 

Initiatives

• e-Courts Mission Mode Project: It is a pan-India Project, monitored and funded by the Department of Justice, Ministry of Law and Justice, for the District Courts across the country.
• National Judicial Data Grid (NJDG) is a part of the on-going e-Courts Integrated Mission Mode Project.

Way forward

• Infrastructure Development: Significant investment needs to be done in developing IT and court infrastructure for online delivery of justice.
• Classification of Cases: Clear classification of cases needs to be done, in terms of which can be managed online and which cannot be depending on the seriousness and technicality of the issue.
• Increase Digital literacy: The chairman of the Bar Council of India has voiced a concern that 90 percent of the lawyers are not computer literate or tech-savvy Act. A proper arrangement to be done for this.
• Digitization of existing records: Case-management systems will need to be modified to allow for new technology and remote access.
• Effective for petty offences: The virtual court system has the potential of being upscaled and other petty offences such as delayed payments of local taxes.
• New Normal: After lockdown, justice delivery has been undergoing a transformation, and judges, lawyers, and litigants will need to adapt to the new normal.
• Long term measures: Online justice system should not only for pandemic period. Several countries and courts have made adjustments not only for the period of the pandemic or lockdown but also for the future.

Post lockdown, justice delivery will certainly undergo a transformation. And judges, lawyers and litigants will need to adapt to the new normal. Several countries and courts have made adjustments not only for the period of the pandemic or lockdown but also for the future. We should certainly not be left behind but must also make a roadmap to meet the challenge. More importantly, we should still remember that, at no given circumstances, should speed be equated to efficiency, and efficiency is promoted over justice.

 

FAST TRACK COURTS

Fast track courts (FTCs) are special courts for speedy trials to make the judiciary more effective and to avail justice as fast as possible. They are ‘special court’ is one which is to deal with special types of cases under a shortened and simplified procedure.

Evolution

• The Fast Track Courts (FTCs) were established in India in the year 2000 with an aim to clear the long pending Sessions and other lower judicial cases.
• The 11th Finance Commission had recommended a scheme for the establishment of 1734 FTCs for the expeditious disposal of cases pending in the lower courts. Fast-track courts (FTCs) are created primarily to deal with the judicial backlog.

• Then after Fast track courts (FTCs) have also been set up on the orders of various High Courts to accelerate disposal of cases on matters ranging from sexual offences, anti-corruption, riots, and cheque bouncing.

 

Data Economic Survey 2018-19 there are about 3.5 crore cases pending in the judicial system, especially in district and subordinate courts. About 87.54% of the total pendency of cases is in the district and subordinate courts. More than 64% of all cases are pending for more than 1 year. The average disposal time for civil and criminal cases in Indian District & Subordinate courts in 2018 was 4.4 fold and 6 fold higher respectively when compared with the average of Council of Europe members (2016). A Case Clearance Rate of 100% (i.e., zero accumulation) can be achieved with the addition of merely 2,279 judges in the lower courts, 93 in High Courts and only one in the Supreme Court, which is already within sanctioned strength and only needs filling of vacancies. At the end of June 2022 there were only 728 FTCs including 408 exclusive POCSO courts operational in the country, with approximately 5.9 lakh pending cases. Uttar Pradesh has the most number of cases. 56% of the States and Union Territories, including Karnataka, Madhya Pradesh, and Gujarat, had no FTCs.

 

Current Incidences

• Recently, the Minister for Women and Child Development informed the Rajya Sabha that the government has proposed to set up 1,023 fast-track courts to clear the cases under the Protection of Children from Sexual Offences (POCSO) Act.
• Supreme Court in a suo-moto petition had issued directions, stating that districts with more than 100 cases pending under the POCSO Act need to set up special courts that can deal specifically with these cases.

 

Need/Advantage of Fast Track Courts

1. 1. Legal
      • Clearing the pending cases: The main motive behind the establishment of fast track courts was to solve the enormous amount of pending cases and to reduce some burden off district and high courts.
      • To reduce the number of undertrials: India has one of the largest number of people (approximately 2.8 lakhs) in prison awaiting their trial or going. To reduce this number fast track courts are needed in the country.
      • Need for Speedy Trial: In a country where thousands of crimes take place every day it is very important to provide speedy trial and justice.
      • Promotes specialization: It has helped employ thousands of people from different fields, it also avails retired judges from high courts and district courts.
      • Improves judicial efficiency: By the proper use of judiciary and by speedy trial and judgment, fast track courts boost the efficiency and effectiveness of the judiciary.
      • High case clearance rate: Fast Track courts in India have the highest case disposal rate due to its speedy trial and judgment.
   2. Political
      • Constitutional right: Speedy trial also being a constitutional right has yet to see its goals achieved and for the same, fast track courts are required.
      • Reduce criminalisation of politics: After SC order of fast tracking the pending criminal cases against politicians, it seems more relevant now.

• Social

• To end sexual and gender-based violence: Fast track courts work to provide speedy and accurate justice to gender and sexual violence victims.

• Reduce emotional trauma: Long pending cases create a traumatic effect on person going through such trial and the pleader asking for justice.

 

Issues and Challenges 

1. Structural

• Ad-hocism: Setting up of FTCs was not based on actual problems of pendency, but was often in response to specific incidents such as securities scams, rape cases and sexual harassment of children.
• Lack of focus on systematic issues: Though large sums of money and attention are being devoted to creating additional posts, little is being done to identify and address the prevalent systemic issues.
• Lack of Coordination: In India, tribunals are managed by different ministries, and fast-track courts and special courts are administered under different judicial bodies, with little coordination or uniformity among them.

2. Procedural

• Delay in forensic reports: There are delays in getting reports from the understaffed forensic science laboratories, judges make frivolous adjournments and inadequate staff adversely affects the efficiency of the fast track courts.
• Non-Uniformity in Type of Cases: There is a huge variation in the kinds of cases handled by these courts across States, with certain States primarily allocating rape and sexual offence cases to them and other States allocating various other matters.

 

3. Other

• Infrastructural Issues: Most FTCs were not set up with different infrastructure or facilities, but were often housed in an existing court.
• Technological Barrier: Several FTCs lacked technological resources to conduct audio and video recordings of the victims and many of them did not have regular staff.
• Financial bottlenecks: In its judgment in the Brij Mohan Lal case, the Supreme Court held that the continuation of FTCs is within the domain of the States with their own funds. This has left Fast track courts (FTCs) on the mercy of State as some states have continued support for FTCs while others did not.

 

Examples of some exceptional work of FTCs 

Courts across the country have delivered quick justice over the years. A few examples of fast-track trials are as follows:

• Rohtas, Bihar: A court concluded a rape trial in just two days in June 2006 and sentenced a man to seven-year imprisonment for raping a minor.
• Jaipur, Rajasthan: A rape trial was concluded in seven days in April 2006. A man was sentenced for raping a German student.
• Delhi: A fast-track court completed the December 16, 2012 gang rape-cum-murder case [Nirbhaya case] in 9 months and gave death penalty to convicts Mukesh, Vinay, Akshay, Pawan.
• Mumbai, Maharashtra: A city court completed the Shakti Mills gang rape case in seven months and awarded death penalty to three convicts and life imprisonment to one convict.

• Imphal, Manipur: In June 2013, an Imphal court completed a rape trial in 8 months and sentenced four convicts, including two India Reserve Battalion (IRB) jawans, to life imprisonment.
• Some notable fast track cases: Best Bakery Case, Jessica Lal Murder Case, 26/11 Mumbai case

 

Way forward

• Identification of core issue: For the Fast track courts to become successful, states should engage with the principal and senior district judges to get a sense of issues the courts are facing in various regions.
• Infrastructure development: Equal attention must be paid to setting up FTCs for both the metropolitan and far-flung non-metropolitan areas.
• Sensitising State Governments: The State Governments, in consultation with the Chief Justices of the respective HCs should take necessary steps to establish suitable number of FTCs and provide adequate funds for the purpose.
• A holistic approach of fast tracking the investigation to complement the Fast track courts (FTCs) and providing a special procedure different from the procedure followed in the regular courts is required.

For the overall system to work productively, it is important to ensure that its various components work efficiently and without any hindrance.

 

JUDICIAL ACTIVISM & OVERREACH

In a large nation like India, the government often is unable to render effective justice and implementation of laws properly, thus it becomes important for the judiciary to step in and fill in the gap in the interests of the public. Such an activity can be regarded as judicial activism, and when it breaches the public interest clause and oversteps it is termed as judicial overreach.

Judicial Review	Judicial Activism	Judicial Overreach
It reviews any executive or legislative action and its compatibility to the constitution.	It entails judicial action in the interest of the public in a case where the legislature or executive fails to step in.	It entails a breach of separation of powers and judiciary takes up the role of the legislature or executive.

 

Advantages

1. Upholds rights of citizens: Ensures rights of citizens are not violated by the executive or legislature.
   • Example: In the Shreya Singhal case, SC struck down provisions on arrest under the IT act for posting on the internet as unconstitutional and violating freedom of expression.
2. Expedites legislation: It offers an immediate solution in cases that may take months in the parliament.
   • Example: The court mandates the ban of 10-year-old diesel and 15-year-old petrol vehicles from Delhi.
3. Constitutional experts: Use of judicial wisdom which is relevant in any constitutional issues.
4. Judicial Review: It checks any dictatorial and authoritarian tendencies of the government.
   • Example: In 2020, the SC restored the ban on anticipatory bail on SC/ST act thus reviewing its own verdict in Kashinath Mahajan Case.
5. Substitutes weak Government: Executives that are weak and prone to collapse, often see opposition in policymaking and thus the judiciary gains the power to dictate laws.
6. Avoids Misuse of Power: It helps the judiciary to remove any instances of misuse of power by the executive.

 

Disadvantages

1. Distorts separation of Power: It affects the separation of powers as a judiciary enters the domain of the Parliament.
2. Undermines Parliament: It reduces the faith in the legislative powers of the government and can create discord with the Parliament not being allowed to function properly.
   • Example: The Supreme Court struck down the NJAC which was passed by parliament as an amendment.
3. Outside judicial domain: Judges are not elected by the people and thus are less accountable than the elected Parliament.
4. Scope of partisanship: The judiciary can be prone to bias and selfish motives of individual interests.
5. Dangerous precedent: Potential to become Judicial Overreach and disrupt the credibility of the government.
6. Lack of faith: People will lose faith in the legislature as being the ultimate law-making body.
7. Legislative confusion: Frequent back and forth laws and rules being formed by the judiciary and the legislature can cause vagueness in the minds of people.
8. Discouragement to vote: When the judiciary makes laws it makes the elected representatives invalid.
9. Loss of credibility: With the judiciary having powers of legislation, it can seriously undermine parliamentary morale.

 

Notable Examples

• Phasing out polluting vehicles: The court mandates the impounding of 10-year-old diesel and 15-year-old petrol vehicles from Delhi.
• Vishaka Guidelines 1997: The guidelines, directed toward employers to prevent sexual harassment, included a definition of sexual harassment.
• Shreya Singhal Case, 2015: It struck down the IT act provisions that allowed arrest of individuals based on the content they post online.
• 2G Scam: The PIL helped the SC to scrap 122 2G licences which were awarded wrongfully.
• Kesavananda Bharati Case: The court held that the Parliament can amend any part of the Constitution but cannot destroy its basic structure.

 

Overreach

• National Anthem: It directed mandatory playing of the National Anthem in all Cinema Halls.
• NJAC: The Supreme Court struck down the National Judicial Appointments Commission (NJAC) which was established through the 99th Constitutional Amendment.
• Government school enrolment: Allahabad High Court in 2015, passed an order stating that children of bureaucrats in UP should be enrolled only in government schools.
• Cinema Censorship: The court ordered cuts in the film Jolly LLB 2 and also asked the CBFC to recertify the film.
• Firecracker Ban: In 2020, the SC banned use of fire crackers during Diwali.
• Highway Liquor Ban: The Judiciary directed the ban on the sale of liquor at any establishment within 500m of a highway.

(Please note: The above cases may be considered as Activism by few of you, which is not wrong at all)

 

Way Forward

• Balance: The judiciary must only step in cases where the fundamental rights need to be upheld immediately and thus it should be am exception and not a norm. 
• Must not overreach: Judiciary must not overstep its domain. 
• Coherence with Parliament: In such cases, the judiciary must consult the government and remove any notion of parallel authorities. 

 

NEW INITIATIVES FOR JUDICIARY

Over the years significant measures have been undertaken by the Department of Justice as well as judicial institutions to expedite delivery of justice and court case resolutions, especially in view of the difficult situation caused by the COVID-19 pandemic. The department stood up to the challenge and ensured the functioning of e-courts, video conferencing, live streaming of proceedings amongst other things to provide a mechanism for dispute resolution.

 

E-Courts Mission Mode Project and Digitisation Initiatives

It is a part of National e-Governance Plan under implementation since 2007 for the ICT development of the Indian Judiciary based on the “National Policy and Action Plan for Implementation of Information and Communication Technology in the Indian Judiciary.”

• Objective: Improving access to justice using technology.
• Data: Under this project’s phase II, 18,735 courts, across the country, have been computerised, so far with software compatibility and interoperability.

 

Following projects are being implemented under it:

1. Wide Area Network (WAN) Connectivity: It is aimed at connecting all District and Subordinate court complexes, spread across the country. It forms the backbone fore-Courts project ensuring data connectivity in courts across the country.
   • Commissioned projects: So far, 2972 sites (99.3%) have been commissioned out of 2992 sites with 10 Mbps to 100 Mbps bandwidth speed.
2. National Judicial Data Grid: It provides information related to details of court registration, cause list, daily orders and final judgements and is an important tool to identify, manage and reduce case pendency.
3. Virtual Courts: 20 virtual Courts by July 2022 have been set up to try traffic offences. It aims at reducing footfalls in court by eliminating the presence of violator and advocate. It is environmentally-friendly, saves judicial manpower and provides convenience to citizens.
   • Digital NI Act Courts-Project Implementation Guidelines: Issued by Delhi High Court in 2020 and is expected soon to have Virtual Courts dealing with Negotiate Instruments Act cases.
4. Video Conferencing: It emerged as the mainstay of the Courts during Covid lockdown period. Till June 2022 including the lockdown period, around 1.94 lakh cases were heard in virtual courts across the country.
5. E filing version 3.0: An e-filing system has been rolled out for the electronic filing of legal papers. This allows the lawyers to access and upload documents related to the cases from any location 24X7. There has been a surge in the number of e-filing during the pandemic.
6. E-Sewa Kendras: They have been rolled out to bridge the digital divide by providing e-filing services to lawyers and litigants. They have been set up at the entry point of the court complexes with the intention of facilitating the lawyer or litigant who needs any kind of assistance ranging from information to facilitation and e-filing.
7. E-Payments: Online payment of court fees, fines, penalties and judicial deposits has been initiated. Introduction of electronic collection of payments requires appropriate amendments in the existing Court Fees Act by State Governments. 21 States have already amended the Court Fees Act.

1. E-Court Services: 7 platforms have been created to provide real time information on case status, cause lists, judgements etc. to lawyers/Litigants through SMS, Email, e-Courts services Portal, Judicial Service centers and Info Kiosks.
2. National Service and Tracking of Electronic Processes (NSTEP): It has been launched for technology enabled process serving and issuing of summons. It provides real time status update of service of summons besides tracking of geographical coordinates of the process server at the time of serving.
3. Covid-19 Software Patch: A new software patch and court user manual for COVID-19 management has been developed to help in smart scheduling of cases allowing judicial officers to retain urgent cases and adjourn cases not urgent on cause list.
4. Justice Clocks: These are LED Display Message Sign Board System which have been installed in various High Courts to bring awareness to public about justice sector, advertising the various schemes of the department and to give status of various fields to the public.
5. IEC Campaign: A website has been launched exclusively for the e-Committee to disseminate e-Courts Project related information to all stakeholders.

 

Tele-Law 

This is a unique digital initiative of the Government of India, launched in 2017, which aims to address the cases at pre-litigation stage and to provide free legal advice to marginalized sections of the society.

• Availability: It is currently operational in Common Service Centres across 28 States/UT in the country. During the Covid-19 lockdown period this program has proved its immense potential, strength and utility for the citizen in these trying circumstances.

 

Nyaya Bandhu (Pro Bono Legal Services) 

This programme aims to provide free legal assistance and counsel to the persons eligible under section 12 of Legal Service Authorities Act, 1987. It is provided by advocates who are registered with Department of Justice to volunteer their time and services for representing cases of registered applicants/litigants.

 

Implementation of reforms to improve Enforcing Contracts Regime

• Commercial Courts: 30 Dedicated Commercial courts are fully operational. More Dedicated Courts are to be set up in other states. Designated Special Courts for Infrastructure projects have been set up in 22 High Courts.
• Amendment to the Arbitration and Conciliation Act, 1996: These amendments will facilitate India to become hub of International Commercial Arbitration. Under amended Act, provisions have been made for simplification of procedures, fixing time limit and minimum intervention by courts.

 

Others

• Unique Identification Number: Allotted to every judge in the country to help the apex court track the performance of individual judges and make all judgments delivered through his or her career available on NJDG.

 

Government has taken a variety of measures to automate processes within judiciary with aim to improve efficiency and eliminate the time lost in unproductive work. It is necessary that initiatives mentioned are proactively implemented to automate processes on judicial side. However, it is equally important to take other steps as well, such as filling vacancies in courts, reducing the role of government as a litigant etc.

JUDICIAL INFRASTRUCTURE IN INDIA

Good judicial infrastructure for courts in India has always been an afterthought. It is because of this mindset that courts in India still operate from dilapidated structures making it difficult to effectively perform their function.

Current Incidents

• NJIAI: Recently, the Chief Justice of India proposed creation of a National Judicial Infrastructure Authority of India (NJIAI).
• CSS scheme: The Union Government has approved continuation of the Centrally Sponsored Scheme (CSS) for Development of Infrastructure Facilities for Judiciary for further five years to 2026 at a total cost of Rs. 9000 crore.
• Un-utilization of funds: Of a total of ₹981.98 crore sanctioned in 2019-20 under the Centrally Sponsored Scheme (CSS) to the States and Union Territories for development of infrastructure in the courts, only ₹84.9 crore was utilised by a combined five States, rendering the remaining 91.36% funds unused.

 

Status of Judicial Infrastructure in India

• Number of officers and halls: The total sanctioned strength of judicial officers in the country is 24,280 and the number of court halls available is 20,143 (including 620 rented halls).
• Residential units: There are only 17,800 residential units, including 3,988 rented ones, for the judicial officers.
• Filing and mediation hall: Only 55 per cent courts have centralised filing centres and 31 per cent have mediation halls.
• Waiting hall: Most court complexes also do not have a waiting area for litigants with only 33 per cent buildings with this facility.
• Toilets: 26% of court complexes do not have separate ladies toilets and 16% do not have gents’ toilets.
• Drinking water facility: Only 54% of court complexes have purified drinking water facilities.
• Medical facility: Only 5% of court complexes have basic medical facilities.
• Record room: Only 32% of courtrooms have separate Record Rooms.
• Library: Only 51% of court complexes have a library.
• Video-conference facility: Only 27% of courtrooms have computers placed on the Judge’s dais with video-conferencing facilities.

 

Proposed NJIAI

• Alike NALSA model: The proposed NJIAI could work as a central agency with each State having its own State Judicial Infrastructure Authority, much like the National Legal Services Authority (NALSA) model.
• Control budgeting and infrastructure: NJIAI will take control of the budgeting and infrastructure development of subordinate courts in the country.
• Under control of SC: The proposed NJIAI should be placed under the Supreme Court of India unlike NALSA which is serviced by the Ministry of Law and Justice.
• Policy decision: It will not suggest any major policy change but will give complete freedom to HCs to come up with projects to strengthen ground-level courts.

Need of NJIAI

• No central agency available: Presently, there is no agency to ensure use of funds allocated to augment judicial infrastructure.

• Prevailing infrastructure gap: There is a substantial gap in infrastructure and availability of basic amenities in the lower judiciary.
• Lack of basic amenities: There is a lack of court halls, residential accommodation, and waiting room for litigants in trial courts, especially in smaller towns and rural areas.
• To manage the funds: Experience shows that budgetary allocation for state judiciary often lapses since there is no independent body to supervise and execute works.
• Manage increasing number of litigations: The Indian judiciary’s infrastructure has not kept pace with the sheer number of litigations instituted every year.
• Greater autonomy: The improvement and maintenance of judicial infrastructure is still being carried out in an ad-hoc and unplanned manner. The need for “financial autonomy of the judiciary” and creation of the NJIAI that will work as a central agency with a degree of autonomy.
• Expert project monitoring and evaluation: NJIAI can be the part of the answer to complexities ensuring entrustment of Project Monitoring & Evaluation (PME) function to the experts available across the nation or even beyond.
• Bringing standardisation: NJIAI would bring the uniformity and standardisation required to revolutionise judicial infrastructure.
• Ensuring sufficient funding for Legal Services Authorities: Most of the State Legal Services Authorities are severely understaffed and are dependent on the grants from National Legal Services and State Law Departments. The fiscal plight of Legal Services Authorities has a direct bearing on the availing of legal services by the beneficiaries.
• Reducing pendency of cases: Strengthening the judicial infrastructure is the most important tool to reduce pendency of cases.

 

Reasons Behind Poor Judicial Infra in India

• Lower budgetary allocation: Infrastructure status of lower courts of the country is miserably grim due to which they fail to deliver quality judgements. India spends only about 0.09% of its GDP to maintain the judicial infrastructure.
• Planning issue: Due to this lack of planning the infrastructure is overburdened as the future needs are not adequately addressed during the construction itself.
• Lack of funds and its use: To develop judicial infrastructure, funds are extended by the central government and states under the CSS for development of judiciary infrastructure. However, states do not come forward with their share of funds and consequently, money allocated under the scheme is often left unspent with them and lapses.
• Use of Funds for Non-Judicial Purposes: In some cases, states have also transferred part of the fund for non-judicial purposes. Which itself deprive agencies for funds.
• Responsibility issue: Even in the judiciary, particularly trial courts, nobody is willing to take responsibility to execute infrastructure projects. Most district judges, who head trial courts, also do not vigorously pursue development projects due to short-term appointments and transferable jobs among others.
• Complexity of the Financing: The issue of financing judicial infrastructure is a complex task which requires coordination between various departments of the state government including the district collectorate, the PWD and the Finance Ministry.
• Delays and underutilization: The primary responsibility of infrastructure development for the subordinate judiciary rests with the State Governments. Which itself is not able to fulfil its responsibility.
• Judiciary’s dependence on the executive: The project design, monitoring and execution of the infrastructure, mainly the building infrastructure remains the sole prerogative of the Public Works Departments (PWD). Due to this many pertinent aspects such as cost and space optimisation is being compromised.

 

Challenges in NJIAI

• Lack of expertise: Infrastructure projects inevitably include tedious processes such as procurement, tendering, and auditing of building contracts. And judges cannot be expected to do a better job than other experts.
• Complex procedure: Judges cannot sit over the drafting of RFPs (Request for Proposals) and tenders, negotiate with state governments for land allotments and conduct site inspections to monitor the progress of building construction.
• Lack of power of parliament: Parliament does not have sufficient power to force states to fund the NJIAI.
• Accountability issue: Issues are also being raised about fixing the accountability of the funds spent by NJIAI.

 

Way Forward

• Was at executive will: The courts in India had repeatedly upheld the rights and freedoms of individuals and stood up whenever individuals or society were at the receiving end of executive excesses.
• Dire need of infra: If we want a different outcome from the judicial system, we cannot continue to work in these circumstances.
• Institutionalising the mechanism: Institutionalising the mechanism for augmenting and creating state-of-the-art judicial infrastructure is the best gift that we can think of giving to our people and our country in this 75th year of our Independence.
• Emphasize on CSS scheme: The CSS Scheme will increase the availability of well-equipped Court Halls and Residential Accommodations for Judges/Judicial Officers of District and Subordinate Courts all over the country.
• Use of technology: Setting up of digital computer rooms will also improve digital capabilities and give impetus to the digitization initiation being pursued as a part of India’s Digital India vision.