Editorials, GS-2, Indian Polity, Uncategorized

The judiciary is shifting the balance of power

Summary:

Judiciary, in recent years, is increasingly being criticized for actively encroaching on the powers of legislative and executive authorities. “The judiciary has appropriated for itself a role far beyond its primary duties of dispensing justice and interpreting laws”, claim few parliamentarians. Few experts also claim, “step by step, brick by brick, the edifice of India’s legislature is being destroyed” by the judiciary. With the court recently ordering the creation of a National Disaster Mitigation Fund while national and state disaster response funds already exist, the issue has come to the fore once again.

What is Judicial Activism?

Judicial activism is an approach to the exercise of judicial review, or a description of a particular judicial decision, in which a judge is generally considered more willing to decide constitutional issues and to invalidate legislative or executive actions.

Causes of Judicial Activism:

The following trends were the cause for the emergence of judicial activism — expansion of rights of hearing in the administrative process, excessive delegation without limitation, expansion of judicial review over administration, promotion of open government, indiscriminate exercise of contempt power, exercise of jurisdiction when non-exist; over extending the standard rules of interpretation in its search to achieve economic, social and educational objectives; and passing of orders which are unworkable.

Evolution:

The judiciary in India is often called the most powerful among its tribe globally. While the creative interpretations of the text of law had started earlier, the post-Emergency phase marked a distinct turnaround in the Indian judiciary’s activism.

  • After the ignominious failure to protect the fundamental rights of the citizens in ADM Jabalpur vs Shivakant Shukla (1976), the court believed a constitutional correction would be insufficient. So, the pursuance of constitutional legitimacy was replaced—in the words of Lavanya Rajamani and Arghya Sengupta—“by a quest for popular legitimacy”.
  • A series of judgements, most notably S.P. Gupta vs President of India and others (1981), gave rise to a new legal instrument called public interest litigation. This instrument allowed “public-spirited individuals seeking judicial redress” on a variety of matters beyond what would be permitted by the traditional rule of locus standi, which specifically addressed the concerns of aggrieved citizens.
  • Through several judgements thereafter, the judiciary has unhesitatingly shuffled into the roles of both the legislature and the executive. It assumed wide powers in matters of protection of the environment.

Why Judicial Activism is good?

  • There are many issues that are sensitive, which need to be handled with a certain amount of care that many laws don’t allow. Judicial activism allows a judge to use his personal judgement in situations where the law fails.
  • Judges have sworn to bring justice to the country. This does not change with judicial activism. It allows them to do what they see fit, within reasonable limits of course. It gives judges a personal voice to fight unjust issues.
  • It also provides a system of checks and balances to the other government branches.
  • It has its own system of checks and balances too. Even if a judge decided and ruled that certain law is unjust, it can still be actually overruled with an appeal to another court, even to the Supreme Court.

Why Judicial Activism is not so good?

  • While delivering any judgement in this regard, courts are often ill-equipped to weigh the economic, environmental and political costs involved.
  • When judicial activism is used, it is like the laws do not apply. The judges can override any law that there is, which technically means there are no laws in the judges’ eyes.
  • Sometimes when judicial activism is exercised it is done for solely selfish or personal reasons. They may be political, or the judge may have received compensation for his decision.
  • Judicial activism becomes a more profound subject for those who serve on the Supreme Court, as their rulings generally stand. With the power to have the final say on matters, their judicial opinions would also become standards for ruling on other cases.
  • It sees the letter of the law and politics as separate issues.

Conclusion:

In an ideal world, the judiciary would stick to interpreting the law and refrain from treading on the domain of the legislature or the executive. But in an environment where justice is constantly being subverted, it is arguable that the courts are left with no choice but to step beyond their traditional domain and prod the executive into discharging its constitutional responsibilities. However, this encroachment is clearly a matter of huge concern. Also, camouflaged phrases like “judicial overreach”, used often, have been incapable of instigating any self-correction by the honourable judges. Hence, it’s time for the courts to proceed ahead cautiously in this regard.

 

Editorials, GS-2, Indian Polity, Uncategorized

Diffusing the judicial burden

Article Link

Summary:

The Supreme Court of India, as the highest court of the land, has a sacrosanct function to ensure that the country is governed adhering to the principles of the rule of law. It has evolved remarkably well, steering the country through thick and thin. It also has had a tremendous contribution to the jurisprudential landscape, not just in the country but also internationally. The time has come, however, to revisit the court’s function and align it with the needs of today.

  • In this regard, the Supreme Court had requested the Central government to consider the possibility of establishing a National Court of Appeal which has elicited mixed reactions from the legal community.

What is a National Court of Appeal?

The National Court Appeal with regional benches in Chennai, Mumbai and Kolkata is meant to act as final court of justice in dealing with appeals from the decisions of the High Courts and tribunals within their region in civil, criminal, labour and revenue matters. In such a scenario, a much-relieved Supreme Court of India situated in Delhi would only hear matters of constitutional law and public law.

However, the Centre has rejected this idea. It cites three grounds for rejecting the idea —

  1. The Supreme Court always sits in Delhi as per the Constitution.
  2. The Chief Justices of India in the past have “consistently opposed” the idea of an NCA or regional benches to the Supreme Court.
  3. An NCA would “completely change the constitution of the Supreme Court”.

Why this is a good idea?

  • A National Court of Appeals makes sense, with the Supreme Court being burdened with cases of all kinds. The Supreme Court was meant to be a Constitutional Court. However, the sheer weight of its case backlog leaves the court with little time for its primal functions.
  • Geographical proximity to the court is definitely an aspect of access to justice. The fact that the Supreme Court sits only in New Delhi limits accessibility to litigants from south India. High Courts meant for facilitating easy access to justice are losing their sheen in many ways.
  • If a court of appeal is established, the majority of appeals from high courts can be addressed in these courts.
  • A court of appeal can work as an excellent mechanism to sieve cases. If there are areas of law that are particularly unsettled and need clarification, the court of appeal can club them together and send these forward to the Supreme Court. Not only can a number of individual cases be disposed of but areas of law can also be settled and a clear precedent set.
  • If the Supreme Court only deals with crucial cases, the process will become streamlined and will save a lot of time and expense, for both litigants and the courts.
  • It would relieve the Supreme Court of the weight of hearing regular civil and criminal appeals, allowing the court to concentrate on determining only fundamental questions of constitutional importance.

Why this is not a good idea?

  • Splitting the Supreme Court will be a very regrettable step. The Supreme Court has to be at one place and there can’t be circuit benches like high courts.
  • Dilution of the Supreme Court and its aura as an apex court may not be in line with the concept of the Supreme Court envisioned by the architects of the Constitution.
  • The issue of proximity is relevant only up to high courts and can’t be extended to the Supreme Court. There are enough high court benches to address that issue.
  • This suggestion would require an amendment in Article 130 of the Constitution which is impermissible as this would change the constitution of the Supreme Court completely.
  • Also, NCA will mean more expense and hardship to litigant.

What else can be done?

Efforts should be to strengthen subordinate judiciary (high courts) so that proper justice can be dispensed with.

  • The Supreme Court should discourage the usage of the High Court as a mere stepping-stone towards the end of judicial hierarchy. The glory and resplendence of High Courts should be reclaimed.
  • All High Courts must entertain writs, including in the burgeoning service matters, only before Single Benches in the first instance and then to a Division Bench in the form of a Letter Patents Appeal so as to provide at least a two-tier accessible hierarchy of approach.
  • The challenges to orders of tribunals, irrespective of the former status of their adjudicating Members or Chairpersons, must only be allowed to be entertained by Division Benches of High Courts and not directly to the Supreme Court since the highest Court cannot be rendered the first appellate Court from statutory tribunals and neither can justice be made unaffordable for our citizens.

Conclusion:

A National Court of Appeal is being advocated as an intermediate forum between the Supreme Court and the various high courts of India. But a better solution to ease the higher judiciary’s burden may lie in strengthening that of the lower. Before adverting to a new layer, the conception of which may be difficult to achieve, we need to strategise and reconfigure our existing judicial hierarchy to the rising challenges before us. The only way to do it is to revitalise our High Courts and restore them to their pinnacle

Editorials, GS-2, Indian Polity, Uncategorized

Govt. cautions judiciary on NCA

  • National Court of Appeal (NCA)

Already discussed, refer the following articles in the same sequence:-

  1. Constitution Bench to decide on National Court of Appeal
  2. Not a court of everyday appeal

Additional Points

Why NCA is a good idea:

1. The Supreme Court will maintain its place as the apex court of land and – like England, Wales and the US – only rule on matters that are of constitutional importance or set new legal precedent. This will allow the Court to dedicate more time to develop the law.

2. It will make geographical sense to have different benches to hear appeals. As of now, all appeals have to be heard in New Delhi, inconvenient for cases originating in other parts of the country.

3. A court of appeal can work as an excellent mechanism to sieve cases. If there are areas of law that are particularly unsettled and need clarification, the court of appeal can club them together and send these forward to the Supreme Court. Not only can a number of individual cases be disposed of but areas of law can also be settled and a clear precedent set.

4. If the Supreme Court only deals with crucial cases, the process will become streamlined and will save a lot of time and expense, for both litigants and the courts.

Why is it a bad idea:

  1. It will not reduce the litigation.Apex courts are not clogged but subordinate courts are.
  2. It will merely add another layer of adjudication.
  3. It is constitutionally impossible because hearing of appeals is a basic structure (which will be affected)
  4. It would be a boon only for advocates.

Stand of the Government

  • NCA will add one more level of adjudication and will not help decrease litigation. It will only end up being a boon to advocates. It will mean more hardship to the litigant.

Stand of the Supreme Court

  • It has sent a clear signal to the government that it intended to push hard and pronounce a judgment on the constitutional viability of having an NCA.

 Conclusion:

Establishing  the NCA is a policy decision.The court cannot give direction to the central government from the top court to establish NCA as it would “tantamount to direction from (the top) court to the government to enact a law”.

GS-2, Indian Polity, Public Admin 2, Uncategorized

Court-monitored CBI probes: Is judiciary overstepping its brief?

Observation made by Parliamentary Committee —

  • Parliamentary committee has raised a question on increasing number of court-monitored CBI probes. It states apex courts have started performing the functions of the lowest rung of criminal justice system, taking over the role of a magistrate.
  • At present, many high-profile cases like 2G spectrum case, Vyapam Scam, Coal Block Allocation Scam, Virbhadra Singh corruption probe, Shardha Chit Fund Scam etc. are being monitored by SC and several other HC.
  • Committee also slammed establishment of special CBI courts in states saying it is leading to dual judicial system which is not contemplated under Constitution.

Watch Rajya Sabha TV Debate here

Why do we need monitoring of Judiciary?

  • Investigating agencies like CID, CBI and others are under constant pressure from political masters and this affects the investigation. If SC-led monitoring didn’t happened, cases like 2G, Coal Block Allocation Scam etc. would never have come to the surface. Credibility of investigation agencies is therefore always under doubt w/o monitoring of courts.
  • Moreover, when a leader of opposition comes under scan of investigation, his party demands for independent monitoring of investigation under apex courts.

Why there must be no monitoring by Judiciary?

  • Under Article 22 of Indian Constitution, right to free & impartial trial has been given to the accused and he is considered to be innocent until proved guilty, i.e., a presumption of innocence is given to him to constitutionally. For this judiciary must be totally neutral and must give fair chance to the accused to prove his innocence.
  • But if investigation of a case is started under apex courts, this infringes the right of accused as under same judiciary whole investigation has happened and same judiciary will try him in the end.
  • Parliamentary Committee observed if monitoring, ordering of investigation kept on happening under apex courts there is clear danger of inversion of pyramidical structure of governance provided under the constitution.
  • Therefore, monitoring under apex courts cannot be the institutional answer to independent monitoring of investigation.

 

Way forward —

  • Power given to courts for interfering, ordering and monitoring the investigation by CBI or other is institutional power and has been given by parliament. But daily-basis of monitoring must be checked as it not only infringes the right of accused but also over-burdens the judiciary. Judiciary can’t monitor every investigation.
  • Therefore, we need a constitutional answer and Lokpal can be the answer for monitoring the investigation, free from political intervention.
  • In US, a different kind of approach is being followed. After Watergate Scam, US broughtIndependent Counsel Act in which Federal Court establishes an Independent Counsel which will be responsible for investigation and prosecution. Funds for the independent Counsel are provided by Federal Court.
  • For independent and impartial investigation we need independence of police from political masters. Police Reforms has been ordered by SC in 2006 but unfortunately nothing has been brought yet. Therefore, we need to correct our executive machinery.

Question

‘Now-a-days judicial activism has become a common phenomenon. Increasing number of Court-monitored investigation has raised few questions’. Do you think judicial activism of this kind is acceptable? Suggest measures for free and fair investigation.

GS-2, Indian Polity, Public Admin 2, Uncategorized

Story of Delayed Justice

India faces 23% deficit of judges across all courts:

India is short of almost 5,000 judges, leading to delayed judgments and pending cases in courts, an IndiaSpend analysis of data has found.

The average ratio of cases per judge in India, based on the sanctioned strength of judges in the Supreme Court (SC), the high courts (HC) and the subordinate courts and pending cases at the end of 2013 (an average of three years) was 1,625

India has 17 judges per million people as against a recommended 50 judges per million people.

The Supreme Court had 28 judges while there were 633 high court judges as on August 1, 2015. download

The high courts are missing 384 (38%) of 1,017 judges, as on August 1, 2015. The subordinate courts are 4,580 (23%) short out of a total of 20,214, as on December 31, 2014.

In terms of absolute numbers, the Allahabad High Court has the most vacancies–84 of the total approved strength of 160–among the 24 high courts.

The Chhattisgarh HC faces the maximum deficit of judges to approved strength—59%, followed by the Allahabad HC (53%), the Karnataka HC (48%), the Himachal Pradesh HC (46%) and the Uttarakhand HC (45%). The Kerala HC, the Meghalaya HC, the Sikkim HC and the Tripura HC are at full strength.

The judges’ strength in lower courts increased from 17,715 at the end of 2012 to 20,214 in December, 2014.

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