2.1.

7_Pol_Judiciary
LandMark Judgments

Social

Navtej Singh Johar Vs Union of India - decriminalised all consensual sex among
adults in private, including homosexual sex. - Doctrine of Progressive
Realisation of Rights -
once a right is recognised and given to the public, it cannot be taken back
by the state at a later date. Once a step is taken forward, there is no going
back.
“In a progressive and an ever-improving society, there is no place for retreat
or regression. The society has to march ahead,” Chief Justice Misra held.
Indian Young Lawyers’ Association Case - opening up Sabarimala to women of
all ages
Joseph Shine Case, 2018 - abolished the Section 497 of the Indian Penal Code,
which criminalized adultery.
In Samantha vs. State of Andhra Pradesh the Supreme Court has stated while
defining socialism “Establishment of the Egalitarian social Order through the
rule of law is the basic structure of the constitution”
Delhi High Court recently held that slum dwellers are not secondary citizens but
citizens with equal rights

Getting justice after long struggle - that is Judiciary Acted as Lighthouse of Justice and
Rule of Law in a storm of Injustice

Supreme Court ordered the Gujarat government to pay Rs. 50 lakh compensation
to BilkisBano, a 2002 communal riots and gang-rape victim.

Fundamental Rights

Aadhaar
K. S. Puttaswamy Case, 2017 - holds that the right to privacy is protected as a
fundamental constitutional right under Articles 14, 19 and 21 of the Constitution of
India.
Right to clean environment

Political & Constitutional

Central government and the government of Delhi Case - Cooperative Federalism

Governance Reforms

Lokpal - recommends a panel of names + timeframe

CONTESTED JUDGEMENTs/Acts

HINDUTAVA JUDGEMENT - Hindutava as a way of life

The 1975 ADM Jabalpur Case - Committed Judiciary - During Emergency
habeas corpus is not available.
RTI Applicability on judiciary
Last year four senior most Supreme Court judges held press conference against
the role of Chief Justice of India in allocation of cases.
NJAC Judgement
Contempt of Court is misused

Other Judiciary Related Items

* K.M Joseph for elevation to the SC was first rejected by Government and then
accepted after it was reiterated.
Recusal of Judges - process of a judge stepping down from presiding over a
particular case in which the judge may have a conflict of interest.
Eg. * Justice U.U. Lalit recused himself from Ayodhya Case

Issues in Justice system of India

Access to Justice
High Cost of Litigation - Exorbitant fee of Lawyers
Lack of Regional Benches of SC hinder physical access to Justice.
Highest Appeals to SC from HC of P&H and Delhi and Least from Kerala
Over 3 crore cases Pending in total

In legal systems "Independent" means and implies “not dependent on” or “not
controlled by” any outside agency or source.

Non-political appointments, security of tenure and rigorous procedure for removal,

securing the reputation of and remuneration and immunities for the judges, in-house
accountability procedures, and implementation of code of judges’ conduct are some
of measures that secures the independence of judges

The judicial organs essentially act like buffers and pressure valves, standing between
the state agencies and the restive populace, absorbing all the heat and dust thrown up
by the cycle of governance, or a lack thereof. - Ranjan Gogoi

In the journey of a nation, when the legislative and executive wings get swept away from
their duties and goals under the Constitution by waves of populism, it is for the judiciary
to rise and stand up to the populist forces and protect the constitutional ethos from
being desecrated by the populists - Ranjan Gogoi

Introduction and Conclusions

 The judiciary has no power of the purse or the sword. It survives only by public
confidence…Above measures would enhance public confidence and will result in
judicial independence.
The judge whose character is clouded and whose standards of morality and
rectitude are in doubt may not have judicial independence and may not
command the confidence of the public. He must voluntarily withdraw from the
judicial work and administration
On Accountability - Power without responsibility is the anti-thesis of
constitutionalism. The rule of law demands judicial accountability. Legal equality is
the cardinal principle of the rule of law, and everyone including judges, must
respect it.
Good Judicial system should ensure that justice is accessible, affordable and
speedy.

Judicial Review, Judicial Activism and Judicial Overreach

Judicial Review - Under article 13, 32 and 226 - Judiciary can review an executive
and legislative action to be as per provisions of the Constitution of India and if
found inconsistent, it can be declared as unconstitutional.
Aim - MAINTIAN SUPERMACY OF CONSTITUTION
Eg.
Shreya Singhal v. Union of India - struck down section 66 A of the IT
Act.
Compulsory Linking of Adhaar with bank account was held as
unconstitutional

Judicial activism denotes the proactive role played by the judiciary in the
protection of the rights of citizens and in the promotion of justice in the society.
It involves departure from established norm of Separation of power.
Eg. - SC intervened in recent health epidemic in Bihar due to spread of AES.
* Invention of the ‘basic structure doctrine’
* Asked the state government to update the 1951 NRC in a time-bound
manner.
* Vishakha Guildines for Workplace Harassment
* Sabrimala + Adultry + Sec 377 Etc.
* Road Safety Guidelines

Need of JA/Reason for rise in JA

When Legislature and Executive fails to discharge their duties.

Rise of Weak Coalition governments which are unable to take hard
decisions
 Failure to protect the basic rights of citizens like the rights to live a decent
life healthy surrounding etc
Taking populist decisions and putting important Issues on back-burner
Parliament is not functioning efficiently

Fears of Judicial Activism

Ideological - Usurping power of the legislature and Executive

Epistemic Fear - Do they have knowledge of ManMohan Singh in Economics
and Swaminathan in Agriculture etc.
Increase in Work load of already overburdened judiciary
Legitimation of judiciary may be hurt as large number of orders are becoming
unenforceable by executive, people msy lose faith in judiciary
Eg. Firecrackers, Sabrimala Etc.
Courts are undemocratic i.e Non-elective

Judicial Restrains

It is a philosophy that states that role of judges should be scrupulously limited to

say what the law is and leaving the business of law making to legislature and
executives.

WHY JR

Courts are undemocratic - i.e Non-elective and ideally Non-responsive to popular

will.
Separation of Power
Eg.
* Supreme Court dismissed an application to restrain the government from
taking steps for deportation
* Declined PIL regarding Kohinoor Diamond
* Decline PIL Requesting Lawyers and CAs shall not be allowed to become
MPs

Judicial Overreach

It is a negative concept under which an extreme form of judicial activism is

exercised.
Eg. mandatory to play the National Anthem in cinema halls in the case of
Shyam Narayan Chouksey v. Union of India
Banning of alcohol vendor no national Highways
Censorship of movie Jolly LLB by Bombay High Court

Conclusion - Maintain balance of power between three branches of State. Judges must
exercise judicial restraint, else they may become law in themselves.
SC should not venture into Policy making, it result in emergence parallel mechanisms and
lead to confusion among citizens

PIL - Product of Judicial Activism, Introduced by Justice Bhagawati and Justice

Krishnan Iyer in 1980s

PIL Route allow any public spirited person or organisation to move to court for
enforcement of the rights of any person who because of their poverty or ignorance
or socio-economic disadvantage are unable to approach court.
IN PIL Principle of Locus Standi is given a GO BYE.
Pros
Justice to POOR and Disadvantaged
Vindication of rule of law
realisation of Fundamental Rights
Cons
Misused by vested interests working in form of Specialised NGOs
Publicity Interest and Private Interest Litigation
Increasing Pendency of Cases
Conclusion - Judicial Restraints have to be practiced by Judges considering PIL,
Only Larger Interest shall be entertained.

All India Judicial Services

Under AIJS the district judges will be recruited centrally through an all-India
examination. They will then be allocated to each State along the lines of the AIS.
42nd amendment added this but did not implement it
Article 312 confer power on the Rajya Sabha to initiate the process for setting up
an AIJS, by passing a resolution supported by two-thirds majority in the upper
house.
The idea had to be shelved after some states and High Courts opposed it.
Subordinate and district judges are recruited by High Courts on the basis of a
common examination.

Need for AIJS:

Transparent and efficient method of recruitment to attract the best talent in

India’s legal profession.
Judiciary is suffering from massive vacancies across the nation. Hence there is
need of urgent mechanism to appoint new judges.
Pendency is high with the number of cases about 2.8 crores.
Professionalism in lower judiciary
Boast to Meritocracy in judiciary
Increase in diversity as people from different regions will serve in different regions
Help in Adoption of Best practices
Concerns

Taking into account local laws, practices and customs which vary widely
across States
Local language Issue
Dilutes separation of power, independence in appointment is hampered
In IAS Vacancy is 22%

Way Forward

NITI Aayog in Strategy for New India@75 recommended for AIJS

Law Commission has recommended AIJS

JUDICIAL ACCOUNTABILITY

principle of separation of power >> checks and balances >> Legislature and
the Executive are accountable to the Judiciary >> but to whom is the judiciary
accountable? who is judging the judges?”
Lack of Accountability
Judicial Appointments
Removal of Judges - Long drawn process
Opacity in the operations of Judiciary - Not under RTI and “in-house
mechanism” investigating corruption. (to have independence)
Conduct - Judges have been alleged to have indulged in corruption
(Justice Ramaswami Case, Justice Soumitra Sen)
Misuse of Contempt of Court power
Judicial Overreach
Steps to be taken
Bringing a new Judicial standards and accountability bill

* Draft Memorandum of Procedure (MoP), 2016

Include “merit and integrity” as “prime criteria” for appointment of Judges

Performance Appraisal for promotion as chief justice of a high court -
Judgements and Initiative
Setting up a permanent secretariat in Supreme Court for scheduling
Collegium meetings, maintaining records of HC and so on.

Suggested Amendment in * Contempt of Court Act

Trial by Independent commission and not court.

remove words, ‘scandalizing the court or lowering the authority of the court’ from
the definition
WITNESS PROTECTION SCHEME
Need

Uphold rule of law by removing threat of intimidation

Threats to Witness in high profile cases eg. 45 people killed in Vyapam scam
Global Best Practice in Justice Delivery system - * US, UK, Canada Have separate
Acts
Witnesses have limited rights and protection in current setup

Recommendations

Zahira sheikh vs. State of Gujarat SC observed that witness protection is necessary for
free and fair trial.
14th Report of the Law Commission - Allowance to Witness
4th Report of the National Police Commission
Justice Malimath Committee on Reforms of Criminal Justice System also addressed
the issue and said that a law should be enacted.

Challenges

Lack of resources: Indian police force has acute shortage of manpower (136
personnel per lakh population) and funds even to handle day to day policing.
Right of accused: Law Commission mentioned that concealing the identity of
witness for his/her protection can compromise the rights of the accused to
demand a fair trial in case he/she wants to establish authenticity of witness.
Physical security to witnesses may not be appreciated by witness as it curtails the
privacy and movement.
Time frame of protection - After Trial is over, how many years?

Steps Taken

Witness Protection Bill 2015

Formulation of a Programme - Implementation k liye National and State
level par Witness protection council
Transfer of cases out of original Jurisdiction (Manipur CM’s son’s Case)
witness protection cell - will prepare report to court to decide protection
Witness Protection Scheme - Operated by District Legal Services Authority with
local police
Supreme Court asked the states to adopt Witness Protection Scheme.

Tribunalisation of Justice
Article
323A - Administrative Tribunal Setup by Parliament
323B - Tribunal for other matter by Parliament and state legislature
Need/Benefits for tribunal

Increasing Burden on regular courts - Docket Explosion

Emergence of new field and lack of sufficient time to deal with specialised
matter
Flexibility - They are not restrained by rigid rules and Procedure but Principle of
Natural Justice
Less Expensive: for eg. In Administrative Tribunal an applicant may appear in
person without aid of lawyer.

Issues with Tribunals

Independence -
Works under Line ministry, SC in Madras Bar Association Case held that
all tribunal should be brought under one ministry i.e Law Ministry so that
conflict of interest is avoided.
Conflict of Interest - Government is biggest litigant
Accessibility - not as accessible as high courts, Eg. just four benches of the Green
Tribunal, Securities Appellate Tribunal (SAT) in Mumbai only etc.
Tribunal have turned SC and HC in Court of Appeal from being a Constitutional
Court. Of the 884 judgements delivered in 2014, only 64 judgements were
pertaining to Constitutional question.
In L Chandra Kumar case, SC held that appeals from tribunal shall first lie
to HC.
Increasing Pendency - Avg - 3.8 years and in HC - 4.3 years.
Deny important experience for HC judges - HC as training grounds for future
Supreme Court judges is compromised.

Reforms/Way Forward

Law Commission
Qualification of judges should be akin to those of judges of HC.
Vacancy arising in the Tribunal should be filled up quickly
Chairman should hold office for 3 years or till he attains the age of 70years
Selection should be impartial with minimum government role
Must have benches in different parts of the country so that people may
have easy Access to Justice
Madras Bar Association Case

Way out:

Merge and rationalize tribunals to enhance efficiency.

The rationale advanced for avoiding high courts is the colossal backlog.
 Critics say that governments are to be blamed for this, for not appointing
judges of the sanctioned strength for each high court.
The way ahead lies in the creation of specialised divisions in high courts
for tax, company law and environmental disputes.
A common nodal agency (possibly under the Law Ministry) to monitor the
working of the tribunals and to ensure uniformity in the appointment, tenure and
service conditions for the Chairman, Vice-Chairman and members. (Possibly
headed by CJI)

Collegium and Appointment

Article - 124 - Judge of the Supreme Court shall be appointed by the President after
consultation with such other Judges as the President may deem necessary.
In a series of judgments, SC has held that such consultation is concurrence of collegium
with CJI and four senior most justice of SC.
Issues With Appointments

Collegium of Supreme Court judges finds no place in the Constitution. it is a self

created tool whereby the word consultation have been read as concurrence.
Opacity in Collegium System
Controversial appointments: Judges like Justice P. D. Dinakaran, Justice
Karnan have been in controversy due to misconduct.
Administrative task of this magnitude must necessarily detract the judges of the
collegium from their principal judicial work
Collegium focuses on senior judges of HCs and overlook talent present in junior
judges.
Recently, collegium revisited its decision and recommended different names
than earlier indicating some arbitrariness
it create a system of IMPERIUM IN IMPERIO (a state within a state)

What Needs to be Done

establish independent broad-based constitutional body guaranteeing judicial

primacy but not judicial exclusivity.
NJAC has been held as unconstitutional as it violate basic structure of
constitution
the collegium must provide a panel of possible names to the President for
appointment in order of preference and other valid criteria.
Finalise Memorandum of Procedure:
Proactive information sharing

Transparency in collegium's decisions:

Recently, the Supreme Court’s collegium promised to make public its various
decisions and the reasons underpinning the collegium’s choices.
JUDICIAL PENDENCY

National Judicial Data Grid (NJDG), in 2018, 2.93 crore cases are pending in the
subordinate courts, 49 lakhs in High Courts and 57,987 cases in Supreme Court
Five states which account for the highest pendency are Uttar Pradesh (61.58 lakh),
Maharashtra (33.22 lakh), West Bengal (17.59 lakh), Bihar (16.58 lakh) and Gujarat
(16.45 lakh).
A Law Commission report in 2009 had quoted that it would require 464 years to
clear the arrears with the present strength of judges.
Reasons
1. * Shortage of judges - * 25% of posts are lying empty in the sub-ordinate
courts, * 20 judges per million population (LCI Recommends 50) - due to
delay in recruitment
2. * Frequent adjournments -
3. * Low budgetary allocation leading to poor infrastructure - * about 0.09%
of its GDP to maintain the judicial infrastructure
4. * Burden of government cases - * 46% of the pending cases - 95% of the
appeals fail
5. * Special leave petition cases in the Supreme Court - * 40% of the court’s
pendency
6. * Judges Vacation - * SC works on average for 188 days a year
7. * Lack of court management systems - Lack of court managers to help
improve court operations
8. * Increase in Awareness about rights >> People approach the courts more
frequently
Impacts of Judicial Pendency
1. Denial of ‘timely justice’ amounts to denial of ‘justice’ itself
2. Speedy trial is a part of right to life and liberty guaranteed under Article
21 of the Constitution.
3. Erodes social infrastructure - * weak judiciary has a negative effect on
social development
4. Overcrowding of the prisons- 66% are under-trial
5. Affects the economy of the country as it was estimated that judicial delays
cost India around 1.5% of its GDP annually.
6. Economic Survey 2017-18 pendency hampers dispute resolution,
contract enforcement, discourage investments, stall projects, hamper tax
collection and escalate legal costs which leads to Increasing cost of doing
business
Steps to reduce pendency
1. Improving infrastructure for quality justice - construction of new courts,
computerisation of existing
2. * Addressing Vacancies - * optimal judge strength to handle the cases
pending(LCI - judge strength fixation formula) + Appointment if Ad-hoc
judge in SC and HC.
3. All India Judicial Service for increasing quality of judges and vacancies
 4. Strict regulation of adjournments
5. Better Court Management System & Reliable Data Collection - *
categorization of cases on the basis of urgency and priority
6. Information technology (IT) solutions - AI, Block Chain etc.
1. e-Courts
7. Alternate dispute resolution (ADR) - compulsory mediation in commercial
dispute
8. Performance index for judges
9. Usage of video- conferencing facilities for speedy access to justice and
to minimize logistical issues

Conclusion - * Subordinate courts perform the most critical judicial functions that affect
the life of the common man: conducting trials, settling civil disputes, and implementing
the bare bones of the law.

Fast Track Courts

* to expeditiously dispose of long pending cases in the Sessions Courts and

long pending cases of under trial prisoners in a time bound manner.
* 14th Finance Commission endorsed the proposal for setting up 1800 FTCs. * As
on December 2018, 699 FTCs are functional across the country.
Issues
* Insufficient number of fast track courts
* number of cases allotted to them have increased
* Lack of infrastructure - not set up with different facilities
* Follow same procedures for justice delivery leading to delays
* State government provide funding and they are generally starved of
funds

Death Penalty
Ten years after condemning to death six nomadic tribe members in a rape and mur​der
case, the Supreme Court found them in​nocent and ordered the Maharashtra police to
hunt down the real criminals. SC said Some of them had de​veloped psychiatric pro​‐
blems owing to the long years in solitary confine​ment(as they were condemned man)
with very restricted human contact and under the perpetual fear of death.

Status In India

* Death penalty in 46 provisions under various laws

* CrPC (1973) require ― special reasons to be given if death was preferred
* Supreme Court upheld the constitutionality of the death penalty.
* In Bachan Singh (1980) case SC held that death penalty should be given only in
― rarest of rare cases
* SC ruled that review petitions in cases of death sentence should be heard in
 open court

Against Point

Chances of Judicial Error - SC recalled its own 2009 order sentencing 6 convicts
to death
H L A Hart - if a person is hanged for a crime which he has not
committed, law itself would be a murderer.
Death sentence is arbitrary in nature and depends on the “personal predilection
of judges” - * Justice P Bhagwati
Prolonged delay in executing a death sentence can make the eventual
punishment inhuman and debasing, because of uncertainty and alternating hope
and despair.
B R Ambedkar argued for abolition of the death penalty

EXCESSIVE GOVERNMENT LITIGATIONS

Impact
* Hurts investor’s confidence - * Economic Survey 2017-18
* Adds to the burden of Courts
* increase in almost 60% of the project costs.
* Slows down government administrative processes
* Affects ease of doing business:
Steps taken/Suggestions
* arbitration should be a part of all contractual and tender agreements.
* Legal Information Management and Briefing System (LIMBS), was
created with the objective of tracking cases to which the government is a
party.
* double the monetary threshold for filing appeals in tax disputes
* robust internal dispute resolution mechanisms for service related
disputes
Suggestions by economic survey 2017-18
Coordinated action between government and the judiciary
- horizontal Cooperative Separation of Powers
Judicial capacity should be strengthened in the lower courts to reduce
the burden on higher courts
Tax departments must limit their appeals
Law Commission
* litigation ombudsman’ in each state to manage and handle
government litigation
* creation of a grievance redressal system within departments
Create a repository of all laws and Repeal redundant laws
NITI Aayog
 Reduce the criminalization of violations, and move towards
compounding of minor offences -
Create a law-abiding society - From school level + incentive and
sanction-based models

National Litigation Policy, 2010

* Government must cease to be a compulsive litigant,

* It recommends setting up of the national and regional level monitoring system
to minimize litigation
* "Nodal Officer” in each department to “actively” monitor litigation and track
court cases.
It should be revised
address all three stages of dispute, viz. pre-litigation, litigation and post
litigation stage.
Minimum standards for pursuing litigation must be listed out.
Promotion of alternative dispute resolution mechanisms

Live-Streaming of Supreme Court Proceedings

Arguments in Favour

* Concept of open courts is integral to Indian legal system

* Promote transparency - eg. Like Live streaming of Lok Sabha and Rajya Sabha
* Lack of physical Infrastructure to include wider public
* Public Issues of National Importance require active participation of public

Arguments against

May make judges subject to popular public opinion and accountable to the
general public
Lawyers aspiring publicity may loose objectivity in arguments and indulge in
public appeasement
Individuality of Judge may become topic of debate

Way forward

* specified category of cases (constitutional and national importance) be streamed

during final hearing

Conclusion - Justice should not only be done but seen to be done

POST RETIREMENT POSITIONS

Why the judges should accept

* Legal knowledge and experience
* No bar by Constitution
* Statues lay down conditions which require constitutional or of quasi-
 judicial bodies
Should not accept
* Separation of powers and judicial independence
* Conflict of interest - * first Law Commission recommended against
acceptance of any job
* Politicisation of judiciary -
way Forward
* Cooling off period
* Increase age of retirement
* Appointment to Tribunals by an Independent commission
* Debarring further appointment through amendment

POLICE REFORM
Intro = * Established under authoritarian regime, Thus, the growing
complexity, democratization and changing nature of Indian Society as well as of crime
calls for Structural reforms in police.
Conclusion = Law and order, Terrorism, Left Wing Extremism, cybercrime, are such
threats which call for a strong and efficient police for internal security.

Issues associated

Overburdened police force - Low numbers (Actual =137 per lakh

against sanctioned = 181 and 222 United Nation requirement) + 2nd ARC + Extra
duties (VIP security, house hold work of senior officers)
Poor quality of investigation = low conviction rate + implication of innocent
accused
Eg. Pehlu Khan Case - Acquittal because of poor investigation
Lack of infrastructure = delays in procurement eg. vehicles + lack of Forensic
labs
Police accountability = executive control over police lead to abuse of police
personnel
Police Public Relation = Perception of trouble creator + lack of training in soft
skills +
 Police need community for being the witness and informers
Personnel capacity
low and inadequate training to constabulary rank personnel
High stress levels due to erratic working hours, family issues and
thankless nature of the job
Utilised only 14% of total funds for modernisation

Steps Taken

Umbrella scheme of Modernisation of Police Force Scheme

Crime and Criminal Tracking Network Systems (CCTNS) scheme facilitate
Investigation by connecting the police stations
Prakash Singh case Guidelines
1. State Security Commission(SSC)
2. Police Establishment Board - decide transfers, postings, promotions
3. Police Complaints Authority - inquire into public complaints against police
4. Selection of DGP from UPSC empanelled senior-most officers
5. Two-year tenure for key personnel
6. seperate investigating police from law and order police
7. Justice Thomas committee - to monitor the implementation
SSC set up in all states - But composition and powers not as per
Guidelines
Duration of IGs and DIGs were not fixed

Suggestions

Boosting capacity and infrastructure = Invest more in law and order

Administrative reforms = Prakash Singh case
States should adopt Model police Act
Evidence based Policing = * identifying ‘hot spots >> * spot problematic
individuals >> design strategy
SMART Policing i.e. Strict & Sensitive, Modern & Mobile, Alert & Accountable,
Reliable & responsive, Techsavvy & Trained.
Community policing model - Eg. Janamaithri Suraksha Project’ of Kerala
NITI
Identify non-core functions that can be outsourced to save on staff.
Greater representation of women in the police force (Target 30%)
separate cadre for cyber-crimes, cyber threats

RTI AND JUDICIARY

Public Authority under 2(h) - but SC says RTI is not necessary as "In House
Mechanism” is Enough
Problem in In House Mechanism
 No time frame for disclosure
No provision for Appeal
No penalties for Delays and wrong Information
Discretion in form fo Good Cause Shown Clause
Analysis of Judiciary in RTI
+Ve
Decline in Nepotism and enhance transparency in appointments
Increase Accountability
Increase in public confidence
Practice what it preach
-Ve
Compromise secrecy and security in certain cases
Politicisation of judiciary
Extra burden on overburdened judiciary
Way Forward
Extend RTI but keeping Subjudice case out and maintaining Integrity
of Institution
Sec 23 of RTI keep other courts out from interfering in order made by authorities
under RTI Act
But SC/HC use Power under article 32 and 226/136 to interfere

GAG Orders(Link to FR)

As the great British judge, Lord Diplock, noted, “if the way that courts behave cannot be
hidden from the public ear and eye, this provides a safeguard against judicial arbitrariness
or idiosyncrasy and maintains the public confidence in the administration of justice.”

Recent Incidence - CBI Court hearing fake encounter case, Allahbad Highcourt(Yogi Hate
Speech case), Supreme court in Jolly LLB and In 2012, the Supreme Court held that in
certain circumstances, courts could pass “postponement orders” barring coverage of
specific judicial proceedings. The court framed the issue as requiring a balancing of two
competing rights: the right to free speech, and the right to a fair trial. Observing that
sometimes excessive publicity could jeopardise a fair trial, the court held that to the
extent it was reasonable and proportionate, “prior restraints” on court reporting could be
imposed.
Ultimately, the trial courts and the High Courts take their cue from the Supreme Court,
which is the ultimate driver of jurisprudence. And unfortunately, earlier this year, the
Supreme Court passed a sweeping gag order of its own.

Criticism of Above judgment - India does not have Jury system therefore the argument
that judges can be affected by publicity is bad one, second no adequate limits on the use
of power. better is to publish Audio video and written script of proceeding.

However these are important in case of communal cases and national security cases.