Polity Notes 30

Judicial Reforms and Functioning of the Judiciary

• Pendency of Cases and Need for Benches: The Indian judiciary grapples with an immense backlog of cases, estimated to be over 5 crore across all levels. This issue, often termed ‘justice delayed is justice denied’, undermines the rule of law. To address this, various Law Commission of India reports, notably the 125th Report (1988), have recommended the establishment of Supreme Court Benches (or Cassation Benches) in different regions of the country (e.g., Mumbai, Chennai, Kolkata). The idea is to bifurcate the Supreme Court into a Constitutional Bench in Delhi to handle matters of constitutional interpretation and Cassation Benches elsewhere to deal with appeals. This would enhance access to justice and reduce the burden on the Delhi bench. However, the Supreme Court has consistently opposed this, citing concerns over dilution of its authority and prestige.

• All India Judicial Services (AIJS): The concept of an AIJS, on the lines of the All India Services (IAS, IPS), was first proposed by the 1st Law Commission in its 14th Report (1958). Article 312 of the Constitution was amended by the 42nd Amendment Act, 1976, to provide for the creation of AIJS.

  • Arguments for AIJS: Proponents argue it would create a professional, merit-based, and uniform subordinate judiciary, attract the best legal talent through a competitive exam conducted by the UPSC, and ensure better representation of weaker sections through reservations. It could also reduce judicial corruption and nepotism at the local level.
  • Arguments against AIJS: Opponents, including several High Courts and state governments, raise concerns over federalism, as it would encroach upon their power to appoint district judges. A significant apprehension, as noted in the summary, is the language barrier. Since lower court proceedings are conducted in local languages, a judge from a different state might face significant challenges in comprehending arguments and evidence, thereby hampering justice delivery.

• Public Interest Litigation (PIL): Evolved in the late 1970s and early 1980s through the judicial activism of justices like V.R. Krishna Iyer and P.N. Bhagwati. It relaxed the traditional rule of locus standi (the right to bring an action), allowing public-spirited citizens to petition the court on behalf of the poor, oppressed, or marginalized.

  • Landmark Cases: The case of Hussainara Khatoon v. State of Bihar (1979), which led to the release of over 40,000 undertrial prisoners, is a pioneering example.
  • Criticism and Misuse: Over time, PILs have been criticized for their misuse. They are sometimes labeled as ‘Private Interest Litigation’ (when used to settle personal scores), ‘Profit Interest Litigation’ (for commercial gain), or ‘Political Interest Litigation’ (to serve political agendas). This has led the Supreme Court to become more cautious, imposing costs on frivolous petitions.

• Contempt of Court: The Contempt of Courts Act, 1971, grants courts the power to punish for contempt. While intended to protect the dignity and authority of the judiciary, critics argue it is often used to stifle legitimate criticism. The liberal use of this power can be seen as a threat to freedom of speech and expression (Article 19(1)(a)). The case of In re Prashant Bhushan (2020) brought this debate to the forefront, where the Supreme Court held the activist-lawyer guilty of contempt for his tweets critical of the judiciary.

• The Collegium System and NJAC: The system of appointing and transferring judges, known as the Collegium system, is not derived from the text of the Constitution but evolved through a series of Supreme Court judgments.

  • First Judges Case (S.P. Gupta v. Union of India, 1981): The Court held that the executive had primacy in judicial appointments.
  • Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993): The Court overturned its earlier verdict and created the Collegium system, establishing the primacy of the Chief Justice of India in appointments.
  • Third Judges Case (In re Special Reference 1 of 1998): The Court expanded the Collegium to a five-member body for Supreme Court appointments (CJI + four senior-most judges) and a three-member body for High Court appointments.
  • Criticism: The system has been widely criticized for its opacity, lack of accountability, and potential for nepotism, often termed an “imperium in imperio” (an empire within an empire). The Supreme Court itself acknowledged these flaws but did not provide an alternative.
  • NJAC Episode: To address these concerns, the Parliament passed the 99th Constitutional Amendment Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014. The NJAC was a proposed body to replace the collegium, comprising the CJI, two senior-most SC judges, the Union Law Minister, and two eminent persons. However, in the Fourth Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 2015), the Supreme Court struck down both acts as unconstitutional, holding that they violated the independence of the judiciary, which is a part of the ‘basic structure’ of the Constitution.

• Judicial Activism and Accountability: Judicial activism refers to the proactive role played by the judiciary in protecting citizens’ rights and promoting justice, especially when the executive and legislature fail to act. For instance, the framing of the Vishakha Guidelines in Vishakha v. State of Rajasthan (1997) to combat sexual harassment at the workplace filled a legislative vacuum. However, this has often been criticized as ‘judicial overreach’ or ‘judicial adventurism’, where the judiciary encroaches upon the domains of the other two organs of the state. The criticism that the judiciary makes others accountable without looking at its own performance points towards the lack of an internal accountability mechanism, the opaqueness of the collegium system, and the difficulty in removing judges. The controversial instance where a Chief Justice of India (Ranjan Gogoi) presided over a bench hearing a case of sexual harassment against himself raised serious questions about the principle of nemo judex in causa sua (no one should be a judge in their own cause).

Structure and Jurisdiction of the Supreme Court

• Integrated Judicial System: India has a unified and integrated judicial system, with the Supreme Court at its apex, followed by High Courts at the state level, and a hierarchy of subordinate courts. As per Article 141, the law declared by the Supreme Court is binding on all courts within the territory of India. This contrasts with the federal system of the USA, which has a dual court system: a federal judiciary headed by the US Supreme Court and separate, independent court systems for each state.

• Appointment and Removal of Judges (Article 124):

  • Appointment: Judges are appointed by the President after consultation with such judges of the Supreme Court and High Courts as the President may deem necessary. The Chief Justice of India (CJI) is appointed by the President, and by convention, the senior-most judge is appointed to the office.
  • Qualifications: A person must be a citizen of India and (a) have been a judge of a High Court for at least five years, or (b) an advocate of a High Court for at least ten years, or (c) be a distinguished jurist in the opinion of the President.
  • Removal: The process is governed by Article 124(4) and detailed in the Judges Enquiry Act of 1968. It is a quasi-judicial process often referred to as impeachment. A motion for removal must be supported by 100 members of the Lok Sabha or 50 members of the Rajya Sabha. If admitted, a three-member committee (comprising a SC judge, a HC Chief Justice, and a distinguished jurist) investigates the charges of ‘proved misbehaviour or incapacity’. If the committee finds the judge guilty, the motion must be passed by each House of Parliament by a special majority (a majority of the total membership of that House and a majority of not less than two-thirds of the members of that House present and voting). Only then can the President issue an order for removal. To date, no Supreme Court judge has been removed through this process. The impeachment proceedings against Justice V. Ramaswami (1993) failed to secure the required majority in the Lok Sabha.

• Jurisdiction of the Supreme Court:

  • Original Jurisdiction (Article 131): The SC has exclusive original jurisdiction in disputes between the Government of India and one or more states; or between the Government of India and any state on one side and one or more other states on the other; or between two or more states. This jurisdiction does not extend to disputes arising out of any pre-constitution treaty or agreement.
  • Writ Jurisdiction (Article 32): The SC is empowered to issue writs (Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto) for the enforcement of Fundamental Rights. This is a basic feature of the Constitution. However, its writ jurisdiction is narrower than that of High Courts (under Article 226), as High Courts can issue writs for the enforcement of Fundamental Rights and for any other purpose.
  • Appellate Jurisdiction (Articles 132, 133, 134): The SC is the highest court of appeal. Appeals lie to the Supreme Court from High Courts in constitutional, civil, and criminal matters, provided the High Court certifies that the case involves a substantial question of law.
  • Advisory Jurisdiction (Article 143): The President can seek the opinion of the Supreme Court on any question of law or fact of public importance. The SC may or may not tender its opinion on such matters (e.g., In re the Delhi Laws Act, 1951). However, if the matter pertains to a dispute arising out of any pre-constitutional treaty or agreement, the SC must tender its opinion (e.g., In re Berubari Union, 1960). The opinion is not binding on the President.
  • Special Leave Petition (Article 136): This confers extraordinary discretionary power on the Supreme Court to grant special leave to appeal from any judgment, decree, determination, sentence, or order in any cause or matter passed or made by any court or tribunal in India. It is an exceptional power to be used in cases of gross injustice.
  • Complete Justice (Article 142): This powerful article allows the Supreme Court to pass any decree or make any order necessary for doing ‘complete justice’ in any cause or matter pending before it. This power has been used in landmark cases like the Union Carbide case (Bhopal Gas Tragedy) to provide relief to victims.

Union-State Relations

• Nature of Indian Federalism: The Indian Constitution is federal in structure but has strong unitary features. Scholar K.C. Wheare described it as “quasi-federal.” Granville Austin called it “cooperative federalism.” Dr. B.R. Ambedkar, in the Constituent Assembly, argued for a strong centre to maintain national unity and integrity, especially in the aftermath of Partition. India is famously described as an “indestructible union of destructible states” because the Union can alter the boundaries of states (Article 3) without their consent, but states cannot secede from the Union.

• Unitary (Centralising) Features:

  • Strong Centre: Division of powers in the Seventh Schedule is tilted in favour of the Union.
  • Single Constitution and Single Citizenship.
  • Flexibility of the Constitution: Articles 3 and 4 allow Parliament to alter state boundaries by a simple majority.
  • Office of the Governor: Appointed by the President, the Governor acts as an agent of the Centre and has discretionary powers.
  • All India Services (Article 312): Recruited by the Centre but serve in both Centre and States, giving the Centre significant control over state administration.
  • Emergency Provisions: Under Article 352 (National Emergency), Article 356 (President’s Rule), and Article 360 (Financial Emergency), the federal structure can be converted into a unitary one.
  • Integrated Judiciary and Election Machinery.

• Federal Features:

  • Written, Rigid Constitution.
  • Supremacy of the Constitution.
  • Division of Powers: A clear demarcation of subjects between the Union and the States in the Seventh Schedule.
  • Independent Judiciary: The Supreme Court acts as the umpire in disputes between the Centre and States.
  • Bicameralism: The Rajya Sabha represents the states in the Union legislature.

• Issues of Contention in Union-State Relations:

  • Legislative Domain: The Union has often been accused of encroaching on subjects in the State List. The now-repealed Farm Laws were a prime example, where the Centre used Entry 33 of the Concurrent List (trade and commerce in foodstuffs) to legislate on agriculture, which is primarily a state subject under Entry 14 of the State List.
  • Role of Governor: The discretionary powers of the Governor, especially in recommending President’s Rule (Article 356) and reserving bills for the President’s consideration (Article 200), have been a constant source of friction. The Sarkaria Commission (1983) and Punchhi Commission (2007) recommended safeguards against their misuse.
  • Fiscal Federalism: States often complain about fiscal dependence on the Centre. The implementation of the Goods and Services Tax (GST) and the functioning of the GST Council, where the Centre has a significant say, have raised concerns about the erosion of states’ fiscal autonomy.
  • All India Services: States have argued that AIS officers are not accountable to the state government, leading to administrative friction.
  • Inter-State Disputes: Both border disputes (e.g., Maharashtra-Karnataka) and water disputes (e.g., Cauvery water dispute between Karnataka and Tamil Nadu) continue to challenge the federal fabric.

• Phases of Indian Federalism:

  • 1947-1967 (One-Party Dominance Federalism): Characterized by the dominance of the Congress party at both the Centre and in most states. Federal relations were smooth, but the system was highly centralized.
  • 1967-1990 (Confrontational Federalism): The rise of regional parties led to a period of confrontation, marked by the frequent and often partisan use of Article 356. The judiciary stepped in to check this misuse in the landmark case of S.R. Bommai v. Union of India (1994).
  • 1990-2014 (Cooperative/Bargaining Federalism): The era of coalition governments at the Centre strengthened cooperative federalism. Regional parties became key players, leading to more consultation and negotiation between the Centre and states.
  • Post-2014 (Competitive/Confrontational Federalism): With the return of a single-party majority government at the Centre, the dynamic shifted. The Centre has promoted ‘competitive federalism’ (states competing for investments and funds, e.g., NITI Aayog’s indices). However, critics label it as ‘coercive federalism’, citing instances like the GST implementation, demonetisation, and central legislation on state subjects, which they argue centralize power and undermine states’ autonomy.

Prelims Pointers

• Integrated Judiciary: India has a single, hierarchical judicial system, unlike the USA’s dual system.
• Law declared by the Supreme Court is binding on all courts in India under Article 141.
• Article 124: Establishment and constitution of the Supreme Court.
• Article 124A: Pertained to the National Judicial Appointments Commission (NJAC), which was struck down by the SC.
• Article 131: Original Jurisdiction of the Supreme Court (deals with Centre-State and inter-state disputes).
• Article 136: Special Leave Petition (SLP), a discretionary power of the SC.
• Article 142: Power of the SC to pass any order for doing ‘complete justice’.
• Article 143: Advisory Jurisdiction (President’s power to consult the SC).
• Qualifications for SC Judge:
  • Citizen of India.
  • Judge of a High Court for 5 years OR
  • Advocate of a High Court for 10 years OR
  • A distinguished jurist in the President’s opinion.
• Removal of SC Judge:
  • Grounds: Proved misbehaviour or incapacity.
  • Motion requires signatures of 100 MPs (Lok Sabha) or 50 MPs (Rajya Sabha).
  • Investigated by a 3-member committee as per the Judges Enquiry Act, 1968.
  • Passed by a Special Majority in both Houses.
• First Judges Case (1981): Executive primacy in appointments.
• Second Judges Case (1993): Established the Collegium system and judicial primacy.
• 99th Constitutional Amendment Act, 2014: Introduced NJAC.
• Fourth Judges Case (2015): Struck down the NJAC.
• All India Judicial Services (AIJS): Provision for its creation is in Article 312 (added by 42nd Amendment).
• Quasi-federal: Term used by K.C. Wheare to describe the Indian constitution.
• Cooperative Federalism: Term used by Granville Austin.
• Commissions on Centre-State Relations:
  1. Sarkaria Commission (1983)
  2. Punchhi Commission (2007)
• S.R. Bommai v. Union of India (1994): Landmark judgment curbing the misuse of Article 356.

Mains Insights

Judicial Reforms and Accountability

• Collegium vs. NJAC Debate: This is a classic conflict between Judicial Independence and Judicial Accountability.

  • Argument for Collegium: Proponents argue that it safeguards the judiciary from political interference, which is crucial for its independent functioning. The SC in the Fourth Judges Case (2015) held that the primacy of the judiciary in its own appointments is a part of the ‘basic structure’.
  • Argument for NJAC: Supporters contend that the collegium is opaque, unaccountable, and breeds nepotism (‘uncle-judge syndrome’). An independent commission like the NJAC, with representation from the executive and civil society (‘eminent persons’), would bring transparency and accountability to the appointment process, which is essential in a democracy.
  • The Way Forward: A potential solution could be a reformed appointment body that balances independence with accountability, possibly by restructuring the NJAC to give the judiciary a majority say while still including external members, and by creating clear, objective criteria for appointments.

• Judicial Activism vs. Judicial Overreach:

  • Cause-Effect: Judicial activism often arises from a ‘governance vacuum’ created by legislative inaction or executive apathy. It has led to positive outcomes like the protection of the environment (e.g., M.C. Mehta cases) and human rights.
  • The Thin Line: However, when the judiciary starts entering the domain of policy-making (e.g., fixing air pollution norms, mandating administrative reforms), it can be termed ‘judicial overreach’. This violates the principle of Separation of Powers and can lead to a conflict between the organs of government. The judiciary lacks the expertise and resources for policy implementation, making its directives sometimes impractical.
  • Solution: The judiciary should practice judicial restraint, intervening only in cases of gross constitutional violation and leaving policy matters to the elected branches, while holding them accountable for their constitutional duties.

Nature and Challenges of Indian Federalism

• Evolving Dynamics of Federalism: Indian federalism is not static; it has evolved based on the prevailing political context.

  • Shift from Cooperative to Coercive: The shift from the coalition era’s ‘cooperative federalism’ to the current majoritarian government’s ‘competitive’ or ‘coercive’ federalism highlights how the balance of power between the Centre and States is contingent on political realities.
  • Impact of Economic Policies: Policies like GST have fundamentally altered fiscal federalism. While aimed at creating ‘One Nation, One Tax’, they have been criticized for centralizing fiscal power and reducing the autonomy of states to raise their own revenue.
  • Conclusion: The Indian federal structure is a unique blend of centralisation and decentralisation, constantly being renegotiated. The key challenge is to maintain a collaborative spirit while respecting the constitutional autonomy of states.

• Institutions as Points of Friction:

  • Governor: The office of the Governor remains a major point of friction. Recommendations from the Sarkaria and Punchhi Commissions—such as fixed tenure, appointment from a panel prepared by the state legislature, and rare use of discretionary powers—need to be implemented to restore the office’s dignity and impartiality.
  • All India Services: The rules governing AIS often create a dual-accountability dilemma for officers, caught between the State government’s directives and the Centre’s control. Reforming AIS rules to give states more say in the discipline and posting of officers could ease tensions.