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2.1.7 - Pol - Judiciary: Doctrine of Progressive Realisation of Rights
2.1.7 - Pol - Judiciary: Doctrine of Progressive Realisation of Rights
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
Governance Reforms
* 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
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.
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
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
Judicial Restrains
WHY JR
Judicial Overreach
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 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.
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.
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
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
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
Tribunalisation of Justice
Article
323A - Administrative Tribunal Setup by Parliament
323B - Tribunal for other matter by Parliament and state legislature
Need/Benefits for tribunal
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:
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.
Death Penalty
Ten years after condemning to death six nomadic tribe members in a rape and murder
case, the Supreme Court found them innocent and ordered the Maharashtra police to
hunt down the real criminals. SC said Some of them had developed psychiatric pro‐
blems owing to the long years in solitary confinement(as they were condemned man)
with very restricted human contact and under the perpetual fear of death.
Status In India
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
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
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
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
Steps Taken
Suggestions
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
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.