INDIAN JUDICIARY

1. Introduction

2. History of Indian Judiciary

3. Structure of Indian Judiciary

4. The Supreme Court

i. Establishment and constitution of Supreme Court

ii. Number of Judges

iii. Appointment of Judges

iv. Qualification of the Judges

v. Tenure of the Judges

vi. Removal of Supreme Court Judges

vii. Salary of Supreme Court Judges

viii. When CJI is absent

ix. Post retirement Jobs

x. Ad Hoc Judges

xi. Court of record

xii. Seat of Supreme Court

xiii. Original Jurisdiction

xiv. Appellate Jurisdiction

 xv. Advisory Jurisdiction

xvi. Can Supreme Court overrule its own verdict?

xvii. Special Leave Petition

xviii. Power to punish for Contempt

xix. Provisions for Independence of Supreme Court

xx. Related Articles

4. High Court

i. Appointment of Judges

ii. Qualification to become a High Court Judge

iii. Term and Salary

iv. Removal of the Judge of a High Court

v. Transfer of Judges

vi. Jurisdiction of High Court

vii. Independence of High Court

vii. Related Articles

5. Tribunals

6. Sub-ordinate Courts

i. Structure and Jurisdiction

ii. Constitutional Provisions

7. Judicial Review
8. Judicial Activism

8. Public Interest Litigation (PIL)

9. Rule of Law

10. Judiciary vs Legislature

11. Special Landmark Judgements by Supreme Court

13. Important topics In News

Introduction to Indian Judiciary
The judiciary is that branch of the government that interprets the law, settles disputes and
administers justice to all citizens. The judiciary is considered the watchdog of democracy, and also
the guardian of the Constitution. For democracy to function effectively, it is imperative to have an
impartial and independent judiciary.

History of Indian Judiciary

India has a single unified and integrated judicial system and Supreme Court of India is at the
apex court of the Indian judicial system. Judiciary plays an important role as an organ of the
government. It settles disputes, interprets laws, protects fundamental rights and acts as
guardian of the Constitution.
During ancient times, the concept of justice was inextricably linked with religion and was
embedded in the ascriptive norms of socially stratified caste groups. Most of the Kings’ courts
dispensed justice according to ‘dharma’, a set of eternal laws rested upon the individual duty to
be performed in four stages of life (ashrama) and status of the individual according to his status
(varna). In medieval times, the dictum ‘King can do no wrong’ was applied and the King
arrogated to himself an important role in administering justice. He became the apostle of justice
and so the highest judge in the kingdom. With the advent of the British colonial administration,
India witnessed a judicial system introduced on the basis of Anglo-Saxon jurisprudence.
Mayor’s Courts
The story of India’s modern judiciary begins with the Mayor’s courts. Under the Royal Charter of
1661, the Governor-in-Council of each Presidency {That time they had two presidencies viz.
Madras and Surat} were empowered ‘to judge all persons belonging to the said presidency or
that shall live under them in all causes, whether civil or criminal, according to the laws of this
Kingdom and to execute judgement accordingly’. This power was not exercised for at least two
decades at Madras. In 1678, the Governor-in-Council decided that they should have two sittings
per week to hear and judge all cases concerning Europeans and Indians as per the according to
English Law. Meanwhile in 1687, another charter authorized the company to establish
municipality at Madras to mark the beginning of territorial character of Company’s rule in
Madras.
In exercise of this power, the company established a municipality. The Mayor and Aldermen
were recognized as a “Court of Record” with power to try the civil and criminal cases in their
territories. The Mayor and three of the twelve Aldermen were so called to be the “Justices of the
Peace”. Similar courts were established in successive presidencies at Bombay and Calcutta.
Under the Charter of 1726, a Mayor’s court was established at each presidency town viz.
Madras, Bombay and Calcutta. The difference between the old courts and this new court was
that the earlier Mayor’s courts were of the Company but the newer courts were of the King of
England. The terms in the charter made is implicit that English Law had to be applied in the
Mayor’s Courts in India.
However, meanwhile French occupied Madras and this system remained suspended till 1749
when French surrendered Madras back. The Charter of 1753 was passed later to remove the
difficulties of previous charter including the courts.  Under the new charter, the Mayor’s courts
were put under the Governor-in-council to avoid disputes between the two. However, still
judiciary suffered from lack of legal knowledge, overburdened executive, failure of impartial
judgment, lack of local judges etc.
Supreme Court at Calcutta
Regulating Act of 1773 established for the first time the Supreme Court of Fort Williams in
Calcutta in 1774, consisting of the Chief Justice and three judges (later reduced to two)
appointed by the Crown acting as King’s court. Thus, establishment of this Supreme Court
was ‘an act of reformation rather than of innovation‘, for it was intended ‘in fact to occupy the
position of the Mayor’s Court founded in 1727 (under the Charter of 1726). This court was
adorned  with powers such as power to punish for its contempt, power to try civil & criminal
cases, ecclesiastical and admiralty jurisdiction etc. Appeals against this court could be taken to
King-in-Council.
Sir Elijah Imphey was appointed as chief justice of this court.
Conflict between legislative and executive
The ambiguities of the Regulating Act 1773 led to frequent spats between the Supreme Court
and the Governor General in Council. In 1781, this was remedied by substantially curtailing the
powers of the Supreme Court in favour of the Governor-in-council. However, an attempt was
made to separate the judicial meetings of the council with its executive meetings.
Recorder’s Courts
Due to increased activities of the Company, the need was felt to establish new courts. On
February 1, 1798, the King issued another charter to establish two Recorder’s Courts at Madras
and Bombay. Each Recorder’s court was made of one Recorder, one Mayor and three
Aldermen of the Corporation. The Recorder’s court was same as that of Supreme Court of
Calcutta in terms of powers, functions and limitations except in composition. In 1801 and 1824
Supreme Courts were established in Madras and Bombay respectively. The Constitutional
powers, functions, limitations and jurisdiction of these courts were the same as that of the
Supreme Court at Calcutta. These Supreme Courts functioned until 1862 when they were
replaced by the High Courts at all the three places.
Mofussil Adalats
Mofussil means rural i.e. the places away from Company’s Presidency towns. The Company
had attained the Diwani of Bengal, Bihar and Orissa in 1765. Warren Hastings established
the Mofussil Faujdari Adalat as court of criminal jurisdiction and Mofussil Diwani Adalat as court
of civil jurisdiction and Small Cause Adalat. The appeals from these courts could be taken
to Sadar Nizami Adalat {criminal court of appeals} Sadar Diwani Adalat {civil court of appeals}.
By that time Zamindars were also doing some kind of Judicial functions which Warren Hastings
abolished. Warren Hasings is also known to have brought the judicial proceedings in writing and
appointment of Indian judges in Faujdari adalats.
The system of judiciary had undergone change under Lord Cornwallis in 1787, 1790, and 1793.
He thoroughly reorganized the civil and criminal judicial system in Bengal, Bihar, and Orissa and
introduced the principle of administration according to law. The system under Cornwallis was of
a three tier judiciary as follows:
Civil Judiciary
Lowest Court was the Amin Court or Munsif Court for cases involving value less than Rs. 50.
Higher was Diwani Adalat or District court headed by a Session Judge. Higher than Diwani
Adalat was the Provincial Court of Appeal. Four provincial Courts of appeal were set up
at Dhaka, Calcutta, Murshidabad and Patna. After provincial court, the Highest Court of Appeal
was set up which was called “Sadar Diwani Adalat”. The headquarters of Sadar Diwani Adalat
was at Calcutta and it was the Highest Court of Appeal. Its judge was supported by a Head
Qazi, two Muftis and Two Pandits. The appeals from  “Sadar Diwani Adalat” could be submitted
to the King in England. The King of England only entertained those cases whose value was
more than 5000 rupees.
Criminal Judiciary
At Taluka / Tahsil level, there was a Darogh-i-Adalat. Its judge was Darogha, who was an Indian
judge. Appeals from Darogha could be taken to “District Criminal Courts”. The judge of this court
was a Session Judge. To hear the criminal appeals from District courts, four circuit Courts at
Murshidabad, Dhaka, Calcutta and Patna were established. The Highest court of Criminal
appeal was in “Sadar Diwani Adalat” at Calcutta which used to sit once in a week. It was
supervised by Governor General in council.
Lord Cornwallis also abolished the Court fee and asked the lawyers to prescribe their fee. He
also abolished inhuman punishments of Mughal / sultanate era such as cutting limbs, cutting
nose and ears etc.
Establishment of High Courts
The year 1861 also constituted a conspicuous landmark in the process of development of legal
and judicial institutions in India. It was during this year that the steps were taken to establish
High Courts at Calcutta, Madras and Bombay. These High Courts were not only better
instruments of justice than the preceding courts, but also represented the amalgamation of the
hitherto existing two disparate and distinct judicial systems, the Company’s Courts in the
Provinces of Bengal, Bombay Madras, and the three Supreme Courts(established by the Royal
Charter) in the Presidency town.
Indian High Courts Act 1861
The Indian High Courts Act of 1861 was passed by British Parliament to authorize British
monarch to create high Courts in India. Objective of this act was to effect a fusion of the
Supreme Courts and the Sadar Adalats in the three Presidencies. The High Courts of Calcutta,
Madras and Bombay were established in their place. Each high court was to consist of  a Chief
Justice and not more than 15 regular judges.
The High Courts enjoyed the same power over all persons and estates and had original,
appellate and extraordinary original jurisdiction in civil cases whereas extraordinary and
appellant jurisdiction in criminal cases. Later, more high courts were established at Allahabad
(1875), Patna (1912), Lahore (1865) etc. Appeals from the High Courts would be now taken to
Privy Council.
Federal Court and Supreme Court of India
A Federal Court at Delhi was established under the Government of India Act 1935. This court
served as immediate precursor to current Supreme Court of India. It was composed of a Chief
Justice and not more than six judges. It had original, appellate, and advisory jurisdiction. Its
exclusive original jurisdiction was in all disputes between the federation and the units or
between the units of the proposed federation. Appeal from the federal court could go to Privy
Council without leave in case of original jurisdiction and with leave for any other matter. The
Constituent Assembly passed the Abolition of Privy Council Jurisdiction Act in 1949 to abolish
the jurisdiction of the Privy Council in respect of appeals from India and also to provide for
pending appeals. With this, India’s supreme Court was established at top of the unitary judicial
system in India.

Judiciary debates in Constituent Assembly

The members of the Constituent Assembly envisaged the judiciary as the bastion of rights and
justice. They wanted to insulate the courts from attempted coercion from forces within and
outside the government. Sapru Committee Report on judiciary and the Constituent Assembly’s
ad hoc committee on the Supreme Court report formed the bulk of the guidelines for judiciary.
A.K.Ayyar, K.Santhanam, M.A.Ayyangar, Tej Bahadur Sapru, B.N.Rau, K.M. Munshi, Saadulla
and B.R. Ambedkar played important roles in shaping the judicial system of India.
The unitary judicial system seems to have been accepted with the least questioning. The
Supreme Court was to have a special, countrywide responsibility for the protection of individual
rights. Ambedkar was perhaps the greatest apostle in the Assembly of what he described as
‘one single integrated judiciary having jurisdiction and providing remedies in all cases arising
under the Constitutional law, the Civil, or the criminal law, essential to maintain the unity of the
country’.

Indian Judiciary – Structure

India has a single integrated judicial system. The judiciary in India has a pyramidal structure with the
Supreme Court (SC) at the top. High Courts are below the SC, and below them are the district and
subordinate courts. The lower courts function under the direct superintendence of the higher courts.
The diagram below gives the structure and organisation of the judicial system in the country.
Apart from the above structure, there are also two branches of the legal system, which are:

1. Criminal Law: These deal with the committing of a crime by any citizen/entity. A criminal
case starts when the local police file a crime report. The court finally decides on the matter.
2. Civil Law: These deal with disputes over the violation of the Fundamental Rights of a citizen.

Supreme Court has three types of jurisdictions. They are original, appellate and advisory.
The jurisdiction of the Supreme Court are mentioned in Articles 131, 133, 136 and 143 of the
Constitution.
Functions of Indian Judiciary – What is the role of the Judiciary?
The functions of the judiciary in India are:

1. Administration of justice: The chief function of the judiciary is to apply the law to specific
cases or in settling disputes. When a dispute is brought before the courts it ‘determines the
facts’ involved through evidence presented by the contestants. The law then proceeds to
decide what law is applicable to the case and applies it. If someone is found guilty of
violating the law in the course of the trial, the court will impose a penalty on the guilty person.
2. Creation of judge-case law: In many cases, the judges are not able to, or find it difficult to
select the appropriate law for application. In such cases, the judges decide what the
appropriate law is on the basis of their wisdom and common sense. In doing so, judges have
built up a great body of ‘judge-made law’ or ‘case law.’ As per the doctrine of ‘stare decisis’,
the previous decisions of judges are generally regarded as binding on later judges in similar
cases.
3. Guardian of the Constitution: The highest court in India, the SC, acts as the guardian of
the Constitution. The conflicts of jurisdiction between the central government and the state
governments or between the legislature and the executive are decided by the court. Any law
or executive order which violates any provision of the constitution is declared unconstitutional
or null and void by the judiciary. This is called ‘judicial review.’ Judicial review has the merit
of guaranteeing the fundamental rights of individuals and ensuring a balance between the
union and the units in a federal state.
4. Protector of Fundamental Rights: The judiciary ensures that people’s rights are not
trampled upon by the State or any other agency. The superior courts enforce Fundamental
Rights by issuing writs.
5. Supervisory functions: The higher courts also perform the function of supervising the
subordinate courts in India.
6. Advisory functions: The SC in India performs an advisory function as well. It can give its
advisory opinions on constitutional questions. This is done in the absence of disputes and
when the executive so desires.
7. Administrative functions: Some functions of the courts are non-judicial or administrative in
nature. The courts may grant certain licenses, administer the estates (property) of deceased
persons and appoint receivers. They register marriages, appoint guardians of minor children
and lunatics.
8. Special role in a federation: In a federal system like India’s, the judiciary also performs the
important task of settling disputes between the centre and states. It also acts as an arbiter of
disputes between states.
9. Conducting judicial enquiries: Judges normally are called to head commissions that
enquire into cases of errors or omissions on the part of public servants.

Supreme Court of India

On January 28, 1950, India’s Supreme Court succeeded the Federal Court of India which was
established by Government of India Act 1935 and the Privy Council, which was highest judicial
body in the country during British Era. The organisation, independence, jurisdiction, powers and
functions of the Supreme Court are provided in articles 124 to 147 in Part V of the Constitution
of India.
Number of Judges
Since February 2009, Supreme Court of India has total sanctioned strength 31 judges including
the Chief Justice. The original constitution had fixed sanctioned strength of the court at 8 and
left the matter to parliament to increase the number of judges as needed by making a law. The
number was increased to 11 in 1960, 14 in 1968, 18 in 1978, 26 in 1986 and 31 in 2009.
Appointment of the Judges
Every Judge of the Supreme Court is appointed by the President after consultation with the
Judges of the Supreme Court and High Courts in states, the president may deem necessary for
the purpose.
President if thinks necessary, can consult the Judges of the High Courts of States to appoint a
supreme court Judge, as per article 124(2). However, in appointment of the other judges,
president shall always seek consultation from the Chief Justice of India. Till 1993, the Judges of
the Supreme Court were appointed by the President on recommendation of the CJI, but now a
committee of 5 senior most judges recommends the names to the law ministry which after
scrutinizing send the paper to the president. The president either approves the names or returns
the names for reconsideration of the Supreme Court. If still the Supreme Court sends the same
names president appoints the persons recommended.

Qualifications of the Judges of the Supreme Court

To be appointed a Judge of the Supreme Court, a person must be a citizen of India and must
have been the judge of a high court for a period of 5 years or an advocate of the High Court for
at least 10 years or in view of the President a distinct Jurist of the country. Thus, there is nothing
which can prevent the direct appointment of the Judges of Supreme Court from the Bar, yet, so
far the appointments have been made from the Judges of High Courts only.
Tenure of the Judges
The CJI and other Judges of the Supreme Court of India hold the office until they attain the age
of 65 years { Presently, Supreme Court judges retire at 65 and High Court judges at 62}. A
Judge can relinquish the office by addressing the resignation to President of India. A retired
Judge of the Supreme Court is prohibited from practicing law before any court or authority within
the territory of India; however, there is NO constitutional prohibition that a retired judge gets
appointed for some specialized work of the Government.
Removal of Supreme Court Judges
A Judge of the Supreme Court (and also High Court) can be removed from his position by
President only on the ground of proved misbehaviour or incapacity. The power for investigation
and proof of such misbehaviour or incapacity is vested in the parliament. Each house, in order
to remove the judge, will have to pass a resolution which is supported by 2/3rd of members
present and voting and majority of the total membership of the house {absolute + special
majority}
Salary of the Supreme Court Judges
The Salaries and Allowances of the Judges of the Supreme Court as follows:
Chief Justice : Rs. 1 Lakh
Other Judges: Rs. 90,000

In case of High Courts this is as follows:

Chief Justice : Rs. 90,000
Other Judges : Rs. 80,000
The salary and pension of Supreme Court Judges is a Non-votable expenditure charged from
the Consolidated Fund of India. The Salary of the High Court Judges is charged from the
Consolidated
Fund of States while the pension of the High Court Judges is charged from the consolidated
fund India.
When CJI is absent
Any other Judge of the Supreme Court is appointed by the President as Acting Chief justice as
per provisions of Article 126.
Post Retirement Jobs
Retired judges of Supreme Court are barred from pleading or acting in any court within the
territory of India. However, government generally uses the retired higher judiciary judges as
heads of various
commissions. There has been a demand from certain sections of the society that there should
be a “cool off” period of two years for the retired judges before they are installed in other offices.
Ad Hoc Judges
Ad hoc judges can be appointed in the Supreme Court by “Chief Justice of India” with the prior
consent of the President, if there is no quorum of judges available to hold and continue the
session of the court. Only the persons who are qualified as to be appointed as Judge of the
Supreme Court can be appointed as ad hoc judge of the Supreme Court. (Article 127).
Further, as per provisions of the Article 128, Chief Justice of India, with the previous consent of
the President, request a retired Judge of the Supreme Court High Court, who is duly qualified
for appointment as a Judge of the Supreme Court, to sit and act as a Judge of the Supreme
Court. The
salary & allowance of such judge are decided by the president.
The retired Judge who sits in such a session of the Supreme Court has all the jurisdiction,
powers and privileges of the Judges BUT are NOT deemed to be a Judge.
Supreme Court and High Courts as Court of Record
Both the Supreme Court and High Courts regarded as courts of record. Supreme Court is a
court of record as per provisions of Article 129 and has the powers of such a court including the
power to punish for contempt of itself.
Seat of Supreme Court
As per article 130, Seat of the Supreme Court is Delhi, but it can hold its meeting anywhere in
India. The decision to hold a meeting anywhere in India is taken by the Chief Justice of India in
consultation with President. There are no regional benches though the demand was made in
past. The demand was turned down by the Supreme Court.

Jurisdiction of Supreme Court

Supreme Court of India has original, appellate, writ and advisory jurisdiction as discussed
below:
Original Jurisdiction
As per article 32, Supreme Court is the guardian / protector of fundamental rights and any
person whose fundamental rights are violated can directly approach the Supreme Court for
remedy.
Supreme Court has from time to time interpreted the fundamental rights and has protected the
Citizens of India from any unconstitutional legislation which breech their fundamental rights. Any
matter regarding the enforcement of Fundamental Rights comes under the Original Jurisdiction
of the Supreme Court. Apart from this, Supreme Court is the Highest Interpreter of the
Constitution and tribunal for final settlements of the disputes between Center and States as well
as States and States.
Supreme Court has original Jurisdiction in matters related any dispute between:
Government of India and one or more states
Government of India and State(s) on one side and State(s) in other side
State(s) and State(s)
The dispute should involve a question whether of law or fact on which depends existence of a
legal right which the court is called upon to determine.
Appellate Jurisdiction
Supreme Court is the Highest Court of appeal and the writs and decrees of Supreme Court run
throughout the country. The cases come to the Supreme Court in the form of appeals against
the judgments of the lower courts and this is called appellate jurisdiction. Appellate jurisdiction
involves
the Constitution, Civil and criminal matters. An appeal can be made in the Supreme Court
against any judgment, decree or final order of the High Court in the territory of India, whether in
a civil criminal or other proceedings, if the High Court Certified that the case involves a
substantial question of law as to the interpretation of the Constitution. Even of the High Court
refuses to give such certificate , the Supreme Court can grant
special leave to appeal if the court is satisfied that the case involves a substantial question of
law as to the interpretation of the Constitution.
In every matter that involves the interpretation of the constitution whether, civil, criminal or any
other proceeding, the Supreme Court has been made the final authority to elaborate the
meaning and intent of the Constitution.
As far as criminal cases are concerned there are 3 situations in which criminal appeals in
Supreme Court are permitted: (Article 134)
The High Court has on appeal reverse the order of acquittal of accused person and sentenced
him to death.
The High Court has withdrawn for trial before itself any case from any subordinate court and
such trial convicted the accused person and sentenced him to death.
High Court certifies that the case is worth appeal to the Supreme Court.
Advisory Jurisdiction
Article 143 (Power of President to consult Supreme Court) discusses the advisory jurisdiction of
the Supreme Court.
If the president feels that a question of law or fact has arisen or is likely to arise and the
question is of such a nature and of such public importance that it is expedient to obtain the
opinion of the Supreme Court upon it, he can refer the same to Supreme Court for its advisory
Opinion.
Such an opinion is NOT binding on the president.

Can Supreme Court overrule its own verdicts?

It is said that the Lower court is concerned with the facts and High Court with the error of the
judgment of the lower court. The Supreme Court is concerned with wisdom. But the Supreme
Court may also go wrong and such wrongs can be rectified. Article 137 of the Constitution
provides that
Supreme Court can review and revise its own orders.
Special Leave Petition
Special leave petition is a power of Supreme Court whereby the court may, in its discretion,
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 the territory of India. {Article
136}. Special Leave
Petition has been used frequently to obviate the bar put by article 262 on SC for hearing the
matters related to inter-state riparian disputes.
Court of Record
The judgements, proceedings and acts of the Supreme Court are recognized as legal
precedents and legal references. They are recorded for perpetual memory and testimony.
These records are admitted
to be of evidentiary value and cannot be questioned when produced before any court. In India,
both Supreme Court and High Courts serve as Courts of Record.
Power to punish for contempt of itself
Supreme Court and High Courts have power to punish for contempt of themselves. While
Supreme Court has power to punish for contempt not only of itself but also of high courts,
subordinate courts and tribunals of the entire country.

Provisions for Independence of Supreme Court

To keep Supreme Court free from encroachments, pressures and interferences of the executive
and legislature, following provisions have been made in the constitution.
Judiciary is separate from executive.
Consultation of judiciary has been made must for appointment of Judges, so that it curtails
arbitrary discretion of executive in appointments.
Removal of the judges of Supreme Court is one of the most difficult processes. A judge can be
removed only by president when a resolution support by at least 100 members of parliament is
passed in both the houses by absolute and special majority. This process is such difficult
that no judge of Supreme Court has been removed so far.
The Salaries, allowances and other privileges are charged upon consolidated fund of India.
They cannot be changed except during a financial emergency.
The Constitution has put a bar on any discussion in parliament or state legislature regarding
conduct of the judges in discharge of their duty except when a motion for their removal is under
consideration in parliament.
Retired judges of Supreme Court are barred from pleading or acting in any court within the
territory of India.
Supreme Court has power to punish for contempt of itself.
Officers and servants of the Supreme Court are appointed by Supreme Court itself. Parliament
can extend but cannot curtail the jurisdiction of Supreme Court.

Related Articles
Article 124: Establishment and constitution of Supreme Court
Article 125: Salaries, etc., of Judges.
Article 126: Appointment of acting Chief Justice.
Article 127: Appointment of ad hoc Judges.
Article 128: Attendance of retired Judges at sittings of the Supreme Court.
Article 129: Supreme Court to be a court of record
Article 130: Seat of Supreme Court
Article 131: Original jurisdiction of the Supreme Court
Article 132 Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases.
Article 133: Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil
matters
Article 134: Appellate jurisdiction of Supreme Court in regard to criminal matters.
Article 135: Jurisdiction and powers of the Federal Court under existing law to be exercisable by
the Supreme Court.
Article 136: Special leave to appeal by the Supreme Court.
Article 137: Review of judgments or orders by the Supreme Court.
Article 138: Enlargement of the jurisdiction of the Supreme Court
Article 139: Conferment on the Supreme Court of powers to issue certain writs
Article 140: Ancillary powers of Supreme Court.
Article 141: Law declared by Supreme Court to be binding on all courts
Article 142: Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.
Article 143: Power of President to consult Supreme Court.
Article 144: Civil and judicial authorities to act in aid of the Supreme Court.
Article 145: Rules of Court, etc.
Article 146: Officers and servants and the expenses of the Supreme Court.

High Courts
Every state in India has a High Court which operates within its territorial jurisdiction. Every High
Court is a court of record which has all the powers of such as court including the power to
punish for contempt of itself.

Powers and Functions of the High Court

The High Court is the highest court in a state in India. Articles 214 to 231 in the Indian Constitution
talk about the High Courts, their organisation and powers. The Parliament can also provide for the
establishment of one High Court for two or more states. 
For instance, Haryana, Punjab and the Union Territory of Chandigarh have a common High Court.
The northeastern states also have one common High Court. In addition, Tamil Nadu shares a High
Court with Puducherry.
Currently, there are 25 High Courts in India The High Courts of Calcutta, Madras and Bombay were
established by the Indian High Courts Act 1861.

Appointment of the Judges of High Courts

The procedure of appointing the Judges of the High Courts in India is slightly different from the
appointment of the Judges of the Supreme Court. As per article 217, the chief Justice of the
high court is appointed by the President in consultation with the Chief justice of India as well as
the Governor of the state in question. A collegium system has evolved over the years in which a
Collegium headed by the CJI makes recommendation to the government for appointment of
judges.
The Collegium recommends the names to the law ministry which after scrutinizing send the
paper to the president. The president either approves the names or returns the names for
reconsideration of the Supreme Court. If still the Supreme Court sends the same names
president appoints the persons recommended.
Qualification to Become a High Court Judge
A person to be appointed as a judge of a high court, should be a citizen of India. Further, He
should have held a judicial office in the territory of India for ten years or should have been an
advocate of high court(s) for ten years.
There is no minimum age fixed for high Court judges, and unlike in Supreme Court, there is no
provision for appointment of a distinguished jurist as a judge of a high court.

Term and Salary

A Judge of High Court holds the office until he completes the age of 62 years. (In Supreme
Court it is 65 years). The salaries and allowances of the Chief Justice of High Court and Judges
of the High Court are decided by the parliament by law, time to time.
Current salary of Chief Justice is Rs. 90,000
Current salary of other judges is Rs. 80, 000
The salaries and other expenses of the judges and maintenance of the state high courts are
charged from consolidated fund of the state. Pension of retired high court judges comes from
Consolidated Fund of India.
Removal of the Judge of a High Court
A Judge of the High Court can be removed from office only for proven misbehaviour or
incapacity and only in the same manner in which a Judge of the Supreme Court is removed.The
President of India can remove a Judge of the High Court, from his office only if each house of
the parliament passes a resolution by a two third majority of its members present and voting in
each house requesting him to remove the Judge.
Transfer of Judges
Transfer of High Court Judges is done by the President in consultation with the following Chief
justice of India’ whose opinion is formed by senior most judges of the Supreme Court. Chief
Justice of the High court from where transfer is to take place.
Chief Justice of the High Court to where the transfer is to take place
Post retirement Jobs
The retired permanent judges of a high court are prohibited from pleading or acting in any court
or before any authority in India except the Supreme Court and the other high court However,
government generally uses the retired higher judiciary judges as heads of various commissions.
There has been a demand from certain sections of the society that there should be a “cool off”
period of two years for the retired judges before they are installed in other offices.

Jurisdiction of the High Courts

High Court has original, writ, appellate and supervisory jurisdiction. It also has advisory
functions and can advice on matters of law or constitution if state government or governor so
desires. Further, it has control over the subordinate courts in the state and district
Original Jurisdiction
In several matters high court has power to hear the dispute in first instance, not by way of
appeal. This is called original jurisdiction. Like Supreme Court, high court has original
jurisdiction in matters of enforcement of fundamental rights. Further, it has original jurisdiction in
matters related to admiralty, will, marriage, divorce, company laws and contempt of court. It also
has similar jurisdiction in matters related to election of MPs and MLAs.
Writ Jurisdiction
Article 226 empowers the High Court with writ jurisdiction for the enforcement of fundamental
rights as well as any other matter within the territory of its jurisdiction. The difference between
Supreme Court (article 32) and High Court (article 226) is that while Supreme Court can issue
writs only for enforcement of fundamental rights, high court can issue writs for other matters
also.
Appellate Jurisdiction
The High Court hears the appeals against the subordinate courts in both civil and criminal
matters.
Supervisory Jurisdiction
High court has the power of superintendence over all courts and tribunals within its territorial
jurisdiction except military courts or tribunals. It also has power to transfer the cases from other
subordinate courts in the state to itself. (227)

High Court Powers

Apart from the above, the High Courts have several functions and powers which are described
below.

As a Court of Record
 High Courts are also Courts of Record (like the Supreme Court).
 The records of the judgements of the High Courts can be used by subordinate courts for
deciding cases.
 All High Courts have the power to punish all cases of contempt by any person or institution.

Administrative Powers
1. It superintends and controls all the subordinate courts.
2. It can ask for details of proceedings from subordinate courts.
3. It issues rules regarding the working of the subordinate courts.
4. It can transfer any case from one court to another and can also transfer the case to itself and
decide the same.
5. It can enquire into the records or other connected documents of any subordinate court.
6. It can appoint its administration staff and determine their salaries and allowances, and
conditions of service.

Power of Judicial Review

High Courts have the power of judicial review. They have the power to declare any law or ordinance
unconstitutional if it is found to be against the Indian Constitution.

Power of Certification
A High Court alone can certify the cases fit for appeal before the Supreme Court.
Tribunals
Tribunals were added in the Constitution by Constitution (Forty-second Amendment) Act, 1976
as Part XIV-A, which has only two articles viz. 323-A and 323-B. While articl3e2 3-A deals with
Administrative Tribunals; article 323-B deals with tribunals for other matters . In general sense,
the
‘tribunals’ are not courts of normal jurisdiction, but they have very specific and predefined work
area.
The administrative tribunals are not original invention of the Indian Political System. They are
well established in all democratic countries of Europe as well as United States of America.
Definition of Administrative Tribunal
An administrative Tribunal is a multimember body to hear on cases filed by the staff members
alleging non-observation of their terms of service or any other related matters and to pass
judgments on those cases.

Need for Administrative Tribunals

We all know that the government employs a large work force to carry out its diverse activities.
Managing such a large number of personnel is a herculean task. Most of the government
employees are better educated and enough aware to be insistent on their rights.
There are times when the disputes between the employer (Government) and employees over
service matters can arise. This may also lead to litigation between the employees and the
government. An employee can though approach the court for redressal of grievances for, the
protection of the law is guaranteed to every citizen including government servants. But the
judiciary is already overburdened with cases. Then, the court procedure is extremely
cumbersome, costly and time-consuming. Due to the huge number of employees, the judicial
remedy stands practically ruled out and there was a need for some alternative forum.
Thus, the basic objective of the administrative tribunals is to take out certain matters of disputes
between the citizen and government agencies of purview of the regular courts of law and make
the dispute redressal process quick and less expensive.
The Administrative Reforms Commission (1966-70) had recommended the setting up of ‘Civil
Service Tribunals’ to function as final appellate authorities in respect of orders inflicting the
major punishments of dismissal, removal from service and reduction in rank. At around same
time, J.C. Shah Committee had also recommended the establishment of an administrative
tribunal to adjudicate on service matters.
In one of the judgments, the Supreme Court of India observed that civil servants need not waste
their time in fighting battles in the regular law courts and suggested the establishment of such
tribunals.
According to Article 323A, administrative tribunals can adjudicate the disputes and complaints
with respect to the recruitment and conditions of service of persons appointed to public services
and posts
At Union Level State Level as well as Any local or other authority within the territory of India.
Establishment of Tribunals
Article 323A provides that a law made by the parliament may provide for establishment of an
Administrative Tribunal for the Union and a separate Administrative Tribunal for each state or
two or more states. These tribunals exclude the jurisdiction of all courts except the special
jurisdiction of theSupreme Court in Article 136. The matters for these tribunals are as follows:
Recruitment and conditions of service of persons appointed to public services in Union as well
as States as well as Local authorities
Recruitment and conditions of service of persons appointed to any corporation owned or
controlled by the Government.
Tribunals by State Legislatures
Article 323 B empowers the parliament or state legislatures to set up tribunals for matters
other than those mentioned above. The matters to be covered by such tribunals are as follows:
-Levy, assessment, collection and enforcement of any tax
-Foreign exchange, import and export across customs frontiers;
-Industrial and labour disputes;
-Matters connected with Land reforms covered by Article 31A
-Ceiling on urban property;
-Elections to either House of Parliament or the House or either House of -the Legislature of a
State, but excluding the matters which include
Delimitation of constituencies
-Matters which can be only questions via election petition. This means that some election
matters where courts have been barred cannot be questions in tribunals also.
-Production, procurement, supply and distribution of food-stuffs (including edible oilseeds and
oils) and such other goods as the President may, by public notification, declare to be essential
goods
Administrative Tribunals Act 1985
Using the powers conferred by the Article 323A of the Constitution, Parliament passed a law to
establish the Administrative tribunals in India. The Administrative Tribunals Act 1985 provides
for adjudication or trial of disputes and complaints with respect to recruitment and conditions of
service of public servants.
-The act has made provisions for the Central Administrative Tribunal for the Centre and a
State Administrative Tribunal for a particular State.
-In addition, the Act also provides for the establishment of Joint Administrative Tribunals to
hear cases from more than one State.
-The Act was amended shortly thereafter to constitute a Common administrative Tribunal
between the Centre and the State.
-The Administrative Tribunals were thus, established in November, 1985 at Delhi, Mumbai,
Calcutta and Allahabad.
-Today, there are 17 Benches of the Tribunal located throughout the country wherever the seat
of a High Court is located, with 33 Division Benches.
-In addition, circuit sittings are held at Nagpur, Goa, Aurangabad, Jammu, Shimla, Indore,
Gwalior, Bilaspur, Ranchi, Pondicherry, Gangtok, Port Blair, Shillong, Agartala, Kohima, Imphal,
Itanagar, Aizwal and Nainital.

Central Administrative Tribunal: Important Notes

Its function is to adjudicate the disputes with respect to recruitment and conditions of service of
persons appointed to public services and posts in connection with the affairs of the Union or
state or
other local authorities within the territory of India or under the control of Government of India. In
addition to Central Government employees, the Government of India has notified 45 other
organizations to bring them within the jurisdiction of the Central Administrative Tribunal. The
provisions of the Administrative Tribunals Act, 1985 do not apply to the following:
-Members of paramilitary forces
-Armed forces of the Union
-Officers or employees of the Supreme Court
-Persons appointed to the Secretariat Staff of either House of Parliament or the Secretariat staff
of State/Union Territory Legislatures.
-The CAT is headed by a chairman who must be either a sitting or a retired Judge of a High
Court.
-Other than Chairman, there are 16 Vice-Chairmen and 49 Members.
-The principle bench is located at New Delhi
Please note that Central Administrative Tribunal enjoys the status and powers of a High Court.
However, Government employees not satisfied with CAT orders on their service matters can
appeal in High Courts, followed by appeal in Supreme Court. We note here that the law
commission had recommended that the appeals should go straight to the Supreme Court;
however, this remains just a proposal as of now. In disposing of its cases, the Tribunal observes
the canons, principles and norms of ‘natural justice’.

Tribunals in various States

Many states in India have established the Tribunals. In some states, the decisions and
judgments are binding upon the state Government. In some states such as Andhra Pradesh, the
judgments of Tribunals are binding on the State Government unless nullified by the latter within
a period of two
months. In some states the Tribunals have taken away the jurisdiction of the respective high
courts in service matters, while in some other states, they do not abridge or ban the jurisdiction
of the High Court concerned.

SUBORDINATE COURTS IN INDIA

 Introduction
 
1. These function below the high court’s at district or lower levels.
 
1. In each district of India there are various types of Subordinate or lower Courts.
 
 The Structure and functions of Subordinate Courts are more or less uniform throughout the
Country.
 
1. Designations of courts Connote their functions. They are civil courts, Criminal Courts and revenue
Courts.
 
Constitutional Provisions
 
The Articles 233 to 237 in the Constitution describe the provisions to regulate the organization of
Subordinate Courts and to ensure their independence from the Executive.
 
Appointment of District Judges
 
1. Appointments of District Judges in any State shall be made by the Governor of the State in
consultation with the High Court exercising jurisdiction in relation to such State.
2. A person not already in the service of the Union or of the State shall only be eligible to be
appointed a District Judge if he has been for not less than seven years an advocate or a pleader and
is recommended by the High Court for appointment.
 
Appointment of Other Judges
 
 Appointment of other Judges (other than district judges) to the judicial service of a state is to be made by
the Governor of the State after consultation with the State Public Service Commission and the High Court.
 
Control over Subordinate Courts
 
1. The control over district courts and courts subordinate including the posting and promotion of,
and the grant of leave to persons belonging to the judicial service of a State and holding any post inferior
to the post of district judge shall be vested in the High Court,
2. But nothing shall be construed as taking away from such persons any right of appeal which he
may have under the law regulating the conditions of his service.
 
Interpretation
 
1. The District Judge is the representative of the High Court in the District. He administers
works distribution in the Subordinate Courts in the District. His is the most important post of the District.
2. The subordinate courts covering the civil cases, in this aspect are considered as Junior Civil
Judge Court, Principal Junior and Senior Civil Judge Court, which are also known as Sub Courts,
Subordinate Courts.All these courts are treated with ascending orders.
 The subordinate courts covering the criminal cases are Second Class Judicial Magistrate
Court, First Class Judicial Magistrate Court, and Chief Judicial Magistrate Court along with family
courts which are founded to deal with the issues related to disputes of matrimonial issues only. The
status of Principal Judge of family court is at par with the District Judge
1. Article 309 of the Constitution which occurs in chapter 1 of Part XIV deals with the recruitment
and conditions of service of persons serving the Union or a State.
2. It empowers the appropriate Legislature to regulate the recruitment and conditions of
service of persons appointed to public services and post in connection with the affairs of the Union or of
any State.
3. The provision however says that until the appropriate Legislature shall make the rules, it
shall be open to the President, in the case of services under the Union, and to the Governor, in
respect of the services under the State, to make rules for the said purpose.  Article 310, which
incorporates pleasure clauses, is not relevant for the present purpose.
 
NATIONAL LEGAL SERVICES AUTHORITY
 
 
Article 39A of the Indian Constitution contains provisions for free legal aid to the weaker and poor
sections of the society in order to ensure justice for all.
Also, Articles 14 and 22(1) of the Constitution make it obligatory for the State to ensure equality before
law and a legal system which promotes justice on the basis of equal opportunity to all.
 Therefore, the National Legal Services Authority (NALSA) was constituted under the Legal Services
Authority Act, 1987 for the provision of free legal services to the weaker sections of the
society (defined under section 12 of the Act) and to organize Lok Adalats for speedy and amicable
resolution of cases, in 1995.
 NALSA is also involved in monitoring & evaluating the implementation of legal aid programmes
and laying down principles & policies for making legal services available under the Act.
 
To give effect to the directions of NALSA, State Legal Services Authority in every state, High Court
Legal Services Authority in every High Court, Taluk Legal Services Authority in most of the Taluks
and District Legal Services Authority in most of the Districts have been constituted.
Supreme Court Legal Services Authority has been constituted to implement and administer the legal
services programme insofar as it relates to the Supreme Court.
NALSA lays down guidelines, principles, policies and is involved in framing effective and economical
schemes for the State Legal Services Authorities to execute the Legal Services
Programmes throughout the country. Primarily, all these authorities have been constituted to discharge
the following functions regularly:
 Provision of free and competent legal services to eligible persons.
 Organization of Lok Adalats for speedy resolution of cases in an amicable manner.
 Organization of legal awareness camps in rural areas.

LOK ADALATS
 The concept of Lok Adalat (People’s Court) is an innovative Indian contribution to the
world jurisprudence. The introduction of Lok Adalats added a new chapter to the justice
dispensation system of this country and succeeded in providing a supplementary forum to
the victims for a satisfactory settlement of their disputes. This system is based on Gandhian
principles.
 It is one of the components of ADR (Alternative Dispute Resolution) systems. In
ancient times, the disputes were referred to “Panchayats”, which were established at the village
level. Panchayats resolved the disputes through arbitration. It has proved to be a very
effective alternative to litigation.
 This concept of the settlement of disputes through mediation, negotiation or
arbitration is conceptualized and institutionalized in the philosophy of Lok Adalat. It
involves people who are directly or indirectly affected by dispute resolution.

Origin of Lok Adalats

 
 The concept of Lok Adalats was pushed back into oblivion in last few centuries before
independence and particularly during the British regime. Now, this concept has, once again,
been rejuvenated. It has become very popular and familiar amongst litigants.
 
 This is the system, which has deep roots in Indian legal history and its close allegiance
to the culture and perception of justice in Indian ethos. Experience has shown that it is one of
the very efficient and important ADR mechanisms and most suited to the Indian
environment, culture and societal interests.
 
 Camps of Lok Adalats were started initially in Gujarat in March 1982 and now it has
been extended throughout the Country.
 
 The evolution of this movement was a part of the strategy to relieve heavy burden on the
Courts with pending cases and to give relief to the litigants. The first Lok Adalat was held on
March 14, 1982 at Junagarh in Gujarat.
 
Maharashtra commenced the Lok Nyayalaya in 1984.
 
 The advent of Legal Services Authorities Act, 1987 gave a statutory status to Lok
Adalats, pursuant to the constitutional mandate in Article 39-A of the Constitution of
India.It contains various provisions for settlement of disputes through Lok Adalat.
 
 This Act mandates constitution of legal services authorities to provide free and
competent legal services to the weaker sections of the society and to ensure that
opportunities for securing justice are not denied to any citizen by reason of economic or other
disabilities.
 
 It also mandates organization of Lok Adalats to secure that the operation of the legal
system promotes justice on the basis of equal opportunity. When statutory recognition had
been given to Lok Adalat, it was specifically provided that the award passed by the Lok Adalat
formulating the terms of compromise will have the force of decree of a court, which can be
executed as a civil court decree.
 The evolution of movement called Lok Adalat was a part of the strategy to relieve
heavy burden on the Courts with pending cases and to give relief to the litigants who
were in a queue to get justice. It contains various provisions for settlement of disputes through
Lok Adalat.
The parties are not allowed to be represented by the lawyers and encouraged to interact with
judge who helps in arriving at amicable settlement. No fee is paid by the parties. Strict rule of
Civil Procedural Court and evidence is not applied. Decision is by informal sitting and
binding on the parties and no appeal lies against the order of the Lok Adalat.
 
 Permanent Lok Adalats
 
In 2002, the Parliament brought about certain amendments to the Legal Services
Authorities Act, 1987 to institutionalize the Lok Adalats by making them a permanent
body to settle the disputes related to public utility services. The Central or State Authorities
may, by notification, establish Permanent Lok Adalats at any Permanent Lok Adalats, for
determining issues in connection to Public Utility Services.
Public Services include:
1. Transport service
2. Postal, telegraph or telephone services
3. Supply of power, light and water to public
4. System of public conservancy or sanitation
5. Insurance services and such other services as notified by the Central or State
Governments
Permanent Lok Adalats have the same powers that are vested in the Lok Adalats.

 
Jurisdiction of Lok Adalats
 
A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or
settlement between the parties to a dispute in respect of:
1. any case pending before; or
2. any matter which is falling within the jurisdiction of, and is not brought before, any court
for which the Lok Adalat is organized.
The Lok Adalat can compromise and settle even criminal cases, which are
compoundable under the relevant laws.
Lok Adalats have the competence to deal with a number of cases like:
1. Compoundable civil, revenue and criminal cases
2. Motor accident compensation claims cases
3. Partition Claims
4. Damages Cases
5. Matrimonial and family disputes
6. Mutation of lands case
7. Land Pattas cases
8. Bonded Labour cases
9. Land acquisition disputes
10. Bank’s unpaid loan cases
11. Arrears of retirement benefits cases
12. Family Court cases
13. Cases, which are not subjudiced
 
Powers of Lok Adalats
 
1. The Lok Adalat shall have the powers of a civil court under the Code of Civil Procedure
2. 1908, while trying a suit, in respect of the following matters:
3. Power to summon and enforce the attendance of any witness and to examine him/her on oath.
4. Power to enforce the discovery and production of any document.
5. Power to receive evidence on affidavits,
6. Power for requisitioning of any public record or document or copy thereof or from any court.
7. Such other matters as may be prescribed
8.
 Every Lok Adalat shall have the power to specify its own procedure for the determination of any
dispute coming before it.
 All proceedings before a Lok Adalat shall be deemed to be judicial proceedings within the
meaning of Sections 193, 219 and 228 of IPC.
 Every Lok Adalat shall be deemed to be a Civil Court for the purpose of Sec 195 and Chapter
XXVI of Cr.P.C.
 
Advantages of Lok Adalats
 
1. Speedy Justice
2. Economical
3. Unburdening of Courts and thus reducing the backlog of cases
4. Maintenance of Cordial Relations (since the main thrust is on compromise and not punishment

FAMILY COURTS
The Family Courts Act, 1984 was enacted to provide for the establishment of Family Courts with
a view to promote conciliation and secure speedy settlement of disputes relating to marriage
and family affairs.
Reasons
The reasons for the establishment of separate Family Courts are as follows:
1. Several associations of women, other organizations and individuals have urged, from time to
time, that Family Courts, be set up for the settlement of family disputes, where emphasis should
be laid on conciliation and achieving socially desirable results and adherence to rigid rules of
procedure and evidence should be eliminated.
2. The Law Commission in its 59th report (1974) had also stressed that in dealing with disputes
concerning the family the Court ought to adopt an approach radically different from the adopted
in ordinary civil proceedings and that it should make reasonable efforts at settlement before the
commencement of the trial. The
Code of Civil Procedure was amended in 1976 to provide for a special procedure to be adopted
in suits or proceedings relating to matters concerning the family.
3. However, not much use has been made by the Courts in adopting this conciliatory procedure
and the Courts continue to deal with family disputes in the same manner as other civil matters
and the same adversary approach prevails. The need was, therefore, felt, in the public interest,
to establish Family Courts for speedy settlement of family disputes.
Therefore, the main objectives and reasons for setting up of Family Courts are:
(i) To create a Specialized Court which will exclusively deal w family matters so that such a
court may have the necess expertise to deal with these cases expeditiously. Thus expert and
expeditious disposal are two main factors for establish such a court;
(ii) To institute a mechanism for conciliation of the disputes relating
family;
(iii) To provide an inexpensive remedy; and
(iv) To have flexibility and an informal atmosphere in the conduct of proceedings.
Features
The salient features of the Family Courts Act, 1984 are as follows:
1. It provides for the establishment of Family Courts by the State Governments in consultation
with the High Courts.
2. It makes it obligatory on the State Governments to set up a Family Court in every city or town
with a population exceeding one million.
3. It enables the State Governments to set up Family Courts in other areas also, if they deem it
necessary.
4. It exclusively provides within the jurisdiction of the Family Courts the matters relating to:
(i) matrimonial relief, including nullity of marriage, judicial separation divorce, restitution of
conjugal rights, or declaration as to validity of marriage or as to the matrimonial status of any
person
(ii) the property of the spouses or of either of them;
(iii) declaration as to the legitimacy of any person;
(iv) guardianship of a person or the custody of any minor; and
(v) maintenance of wife, children and parents.
5. It makes it obligatory on the part of the Family Court to endeavour, in the first instance to
effect a reconciliation or a settlement between the parties to a family dispute. During this stage,
the proceedings will be informal and rigid rules of
procedure shall not apply.
6. It provides for the association of social welfare agencies, counsellors, etc., during conciliation
stage and also to secure the service of medical and welfare experts.
7. It provides that the parties to a dispute before a Family Court shall not be entitled, as of right,
to be represented by legal practitioner. However, the Court may, in the interest of justice, seek
assistance of a legal expert as amicus curiae.
8. It simplifies the rules of evidence and procedure so as to enable a Family Court to deal
effectively with a dispute.
9. It provides for only one right of appeal which shall lie to the High Court.

GRAM NYAYALAYAS
The Gram Nyayalayas Act, 2008 has been enacted to provide for the establishment of the Gram
Nyayalayas at the grass roots level for the purposes of providing access to justice to the citizens
at their doorsteps and to ensure that opportunities for securing justice are not denied to any
citizen due to social, economic or other disabilities.
Reasons
The reasons for the establishment of Gram Nyayalayas are as follows:
1. Access to justice by the poor and disadvantaged remains a worldwide problem despite
diverse approaches and strategies that have been formulated and implemented to address it. In
our country, Article 39A of the Constitution directs the State to secure that the operation of the
legal system promotes justice,
on a basis of equal opportunity and shall provide free legal aid to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other disabilities.
2. In the recent past, the Government has taken various measures to strengthen judicial system,
inter alia, by simplifying the procedural laws; incorporating various alternative dispute resolution
mechanisms such as arbitration, conciliation and mediation; conducting of Lok Adalats, etc.
These measures are
required to be strengthened further.
3. The Law Commission of India in its 114th Report on Gram Nyayalaya suggested
establishment of Gram Nyayalayas so that speedy, inexpensive and substantial justice could be
provided to the common man. The Gram Nyayalayas Act, 2008 is broadly based on the
recommendations of the Law Commission.
4. Justice to the poor at their door step is a dream of the poor. Setting up of Gram Nyayalayas in
the rural areas would bring to the people of rural areas speedy, affordable and substantial
justice.
Features
The salient features of the Gram Nyayalayas Act are as follows :
1. The Gram Nyayalaya shall be court of Judicial Magistrate of the first class and its presiding
officer (Nyayadhikari) shall be appointed by the State Government in consultation with the High
Court.
2. The Gram Nyayalaya shall be established for every Panchayat at intermediate level or a
group of contiguous Panchayats at intermediate level in a district or where there is no
Panchayat at intermediate level in any State, for a group of contiguous Panchayats.
3. The Nyayadhikaris who will preside over these Gram Nyayalayas are strictly judicial officers
and will be drawing the same salary, deriving the same powers as First Class Magistrates
working under High Courts.
4. The Gram Nyayalaya shall be a mobile court and shall exercise the powers of both Criminal
and Civil Courts.
5. The seat of the Gram Nyayalaya will be located at the headquarters of the intermediate
Panchayat, they will go to villages, work there and dispose of the cases.
6. The Gram Nyayalaya shall try criminal cases, civil suits, claims or disputes which are
specified in the First Schedule and the Second Schedule to the Act.
7. The Central as well as the State Governments have been given
power to amend the First Schedule and the Second Schedule of the Act, as per their respective
legislative competence.
8. The Gram Nyayalaya shall follow summary procedure in criminal trial.
9. The Gram Nyayalaya shall exercise the powers of a Civil Court with certain modifications and
shall follow the special procedure as provided in the Act.
10. The Gram Nyayalaya shall try to settle the disputes as far as possible by bringing about
conciliation between the parties and for this purpose, it shall make use of the conciliators to be
appointed for this purpose.
11. The judgment and order passed by the Gram Nyayalaya shall be deemed to be a decree
and to avoid delay in its execution, the Gram Nyayalaya shall follow summary procedure for its
execution.
12. The Gram Nyayalaya shall not be bound by the rules of evidence provided in the Indian
Evidence Act, 1872 but shall be guided by the principles of natural justice and subject to any
rule made by the High Court.
13. Appeal in criminal cases shall lie to the Court of Session, which shall be heard and disposed
of within a period of six months from the date of filing of such appeal.
14. Appeal in civil cases shall lie to the District Court, which shall be heard and disposed of
within a period of six months from the date of filing of the appeal.
15. A person accused of an offence may file an application for plea bargaining.

JUDICIAL REVIEW
Judicial Review means the power of the courts to declare a law made by legislature beyond the
powers given to it by the Constitution as ultravires of the Constitution and hence void. Judicial
review
is a powerful weapon to restrain any unconstitutional exercise of power by the Legislature and
the Executive. The only check on the exercise of power by the judiciary, however, is the self-
imposed discipline of judicial restraint. The doctrine of judicial review does not permit the court
to direct or advise the executive in matters of policy or to sermonize vis-à-vis any matter which
under the Constitution lies within the sphere of Legislature or the Executive, provided those
authorities do no transgresses their
constitutional limits or statutory powers.

Judicial Review in India

The phrase "judicial review" is not anywhere used in the Indian Constitution. But, the framers of
Indian Constitution intended this power to be exercised by the courts while interpreting any law
passed by the Parliament or State-legislatures. Till 1967 the Supreme Court had exercised the
power of judicial review with restraint. But in sGolaknath case, 1967, the Supreme Court
overruled previous decisions and declared that the Parliament could not amend the Constitution
to take away or abridge any of the Fundamental Rights. This decision resulted in a public
controversy over the sovereignty of Parliament.
Then, came two other judgments of the Supreme Court - the Bank Nationalization case and the
Privy Purses case. These cases also questioned the supremacy of the parliament. Soon
thereafter in a newly elected Lok Sabha following the 1971 elections, the Parliament passed
24th , 25th and 26th constitution Amendment bills to neutralize the effect of the three above-
mentioned Supreme Court judgments. In the famous Keshavanand Bharati Case, 1973, the
Supreme Court reversed the Golaknath Case ruling and upheld Parliament's right to amend the
Constitution including the Fundamental Rights, but not the 'basic structure or framework' of the
Constitution. The Supreme Court holds the view that the Parliament is not omnipotent to change
the basic structure of the Constitution.

Impact of the 42nd Amendment

The 42nd Amendment enacted during theEmergency made far-reaching changes to curtail the
powers of the courts and to make the Parliament sovereign. Firstly, the 42nd Amendment stated
that no amendment to the Constitution could be questioned in a Court of Law. And "for the
removal of the doubts, it is hereby declared that there shall be no limitation what ever on the
constituent power of Parliament to amend by way of addition, variation or repeal the provisions
of this constitution." In this manner, through this
Amendment the Supreme Court's power to judicial review of constitutional amendments was
taken
away to establish the complete and total sovereignty of Parliament. The Amendment stated that:
(a) A High Court cannot pronounce invalid any
Central law,
(b) The Supreme Court shall not pronounce a
State law as unconstitutional unless a Central
law has also been challenged.
Further, the minimum number of judges of the Supreme Court who shall sit to determine the
constitutional validity of any Central or State law shall be seven and in the case of High Court,
five.
It was also stated that a majority of not less than two- thirds of the judges hearing such a case
must
agree before a law is declared invalid. But after this the 43rd Amendment was passed which
restored the pre-emergency position of the Supreme Court's power of judicial review over laws
passed by state legislatures and Parliament. As far as Parliament's sovereignty with regard to
amending the Constitution is concerned, there is no change. The power of Parliament to amend
the Constitution exists as under the 42nd Amendment, however the judgment of the Supreme
Court in the Minerva Mills case in May 1980 was a setback to the position of unlimited powers
claimed by the Parliament to amend any part of Constitution.
This judgment recognized only limited powers of the Parliament to amend the Constitution
without altering the basic structure.

Constitutional Provisions
Article 32 of the Constitution makes the Supreme Court the ultimate guardian of the
Fundamental Rights of the citizens and clothes it with the power to issue writs for their
enforcement. Article 142 gives the Apex Court wide powers to proonounce orders as are
necessary in the interest of justice for doing complete justice in any cause or matter before it, in
addition to its powers to make decisions under article 131 to 136. Article 142 contains no words
of limitation and has enabled the court to intervene in a wide variety of cases. Starting with
Union Carbide Corpn. v. Union of India, (1991) Supreme Court has made significant strides to
maintain the rule of law, which is the bedrock of our Constitution.

Significance of Judicial Review

It is said that there is a shift from the traditional judicial role to judicial activism, from passivity to
creativity, in that the courts are taking judicial notice of the changing needs of the society and
evolving new tools for redressing public wrongs. Public Interest Litigation based on the enlarged
concept of locus standi, has developed on account of judicial activism. In several matters, the
Courts have provided relief through the 'judicial review', such as, in cases concerning the
deprived or disadvantaged sections of the society, prisoners, environmental degradation,
closure of polluting industries in Delhi, encroachments and
unauthorised constructions, immediate medical aid by government hospitals to seriously injured
persons, reparations to riot-victims, professional college admissions, contempt involving
disobedience or imperviousness to court orders, corruption in high places, or malfeasance of
public servants (including Ministers) involving breach of public trust, etc.

Conclusion
Undoubtedly, the maxim "the King can do no wrong" or absolute immunity of the government
is not recognised in our legal system, rather independence and impartiality which are the two
basic attributes essential for proper discharge of judicial functions are emphasized upon. In fact,
"judicial activism" is nothing but Judiciary's insistence that the rule of law must guide the
Legislature and the Executive in enacting or enforcing the laws of the land. Judicial review is a
constitutionally embraced concept, which has been streesed upon in cases like Minerva Mills
Ltd.v. Unin of India, S.P.Sampath Kumar v. Union of India. Subhesh Sharma v. Union of
India,etc. Judicial review, in India is a power born
from the first principles of democratic constitutionalism & is today an area of great promise. It is
an essential part of the rule of law.
However, it must also be kept in view that the actual governance of the country is certainly the
sphere of the Executive which is accountable to Parliament. Neither the Executive nor the
Judiciary should exceed their legitimate functions. Only then the two organs of the State can
function
harmoniously. Self restraint is the key to the whole issue.

WHAT QUESTIONS ARE RAISED AGAINST JUDICIAL REVIEW?

Following are the main questions raised by the
critics of Judicial Review:
_ Is the judiciary expanding its powers at the expense of the executive?
_ Are the courts reaching the boundaries of the rule of separation of powers?
_ Do the new dimensions, which the judicial review has brought in, are attempts to tread on territory
hitherto reserved for the Executive?
_ Is there a government by the Judiciary, unsupported by any popular mandate?
_ What is the line where the courts will stop? These questions often agitate the minds of thinking
people. The public opinion is divided on these issues and the biggest question that remains unanswered
is - "whether the judiciary has exceeded the limits of its legitimate functions?"

Judicial activism
Judicial activism is a concept that originated in the US in 1947. It has been seen in India since the
Emergency days

Judicial Activism – Know What It Means

The judiciary plays an important role in upholding and promoting the rights of citizens in a country.
The active role of the judiciary in upholding the rights of citizens and preserving the constitutional
and legal system of the country is known as judicial activism. This entails, sometimes overstepping
into the territories of the executive.
Judicial activism is seen as a success in liberalizing access to justice and giving relief to
disadvantaged groups, because of the efforts of justices V R Krishna Ayer and P N Bhagwati.
The Black’s Law Dictionary defines judicial activism as “judicial philosophy which motivates judges to
depart from the traditional precedents in favour of progressive and new social policies.”
The concept of Public Interest Litigation (PIL) is always talked of when judicial activism is discussed.

Judicial Activism Methods

There are various methods of judicial activism which are followed in India. They are:
 1. Judicial review (power of the judiciary to interpret the constitution and to declare any such
law or order of the legislature and executive void, if it finds them in conflict with the
Constitution)
2. PIL (The person filing the petition must not have any personal interest in the litigation, this
petition is accepted by the court only if there is an interest of large public involved; the
aggrieved party does not file the petition). 
3. Constitutional interpretation
4. Access of international statute for ensuring constitutional rights
5. Supervisory power of the higher courts on the lower courts

Significance of Judicial Activism

 It is an effective tool for upholding citizens’ rights and implementing constitutional principles
when the executive and legislature fails to do so.
 Citizens have the judiciary as the last hope for protecting their rights when all other doors are
closed. The Indian judiciary has been considered as the guardian and protector of the Indian
Constitution. 
 There are provisions in the constitution itself for the judiciary to adopt a proactive
role. Article 13 read with Articles 32 and 226 of the Constitution provides the power of
judicial review to the higher judiciary to declare any executive, legislative or administrative
action void if it is in contravention with the Constitution.
 According to experts, the shift from locus standi to public interest litigation made the judicial
process more participatory and democratic.
 Judicial activism counters the opinion that the judiciary is a mere spectator.

Judicial Activism Examples

It all started when the Allahabad High Court rejected the candidature of Indira Gandhi in 1973. 

 In 1979, the Supreme Court of India ruled that undertrials in Bihar had already served time
for more period than they would have, had they been convicted.
 Golaknath case: The questions, in this case, were whether the amendment is a law; and
whether Fundamental Rights can be amended or not. SC contented that Fundamental
Rights are not amenable to the Parliamentary restriction as stated in Article 13 and that to
amend the Fundamental rights a new Constituent Assembly would be required. Also stated
that Article 368 gives the procedure to amend the Constitution but does not confer on
Parliament the power to amend the Constitution.
 Kesavananda Bharati case: This judgement defined the basic structure of the Constitution.
The SC held that although no part of the Constitution, including Fundamental Rights, was
beyond the Parliament’s amending power, the “basic structure of the Constitution could not
be abrogated even by a constitutional amendment.” This is the basis in Indian law in which
the judiciary can strike down any amendment passed by Parliament that is in conflict with the
basic structure of the Constitution.
 In the 2G scam, the SC cancelled 122 telecom licenses and spectrum allocated to 8 telecom
companies on the grounds that the process of allocation was flawed.
 The Supreme Court rolled out a blanket ban on firecrackers in the Delhi – NCR area with
certain exceptions in 2018.
 The SC invoked terror laws against alleged money launderer Hasan Ali Khan.
Pros & Cons Of Judicial Activism
Judicial Activism in simple words means when judges interrupt their own personal feelings into a
conviction or sentence, instead of upholding the existing laws. For some reason, every judicial case
has a base of activism within it, so it is imperative to weigh the pros and cons to determine the
aptness of the course of action being carried out. 
Pros associated with Judicial Activism India

 Judicial Activism sets out a system of balances and controls to the other branches of the
government. It accentuates required innovation by way of a solution.
 In cases where the law fails to establish a balance, Judicial Activism allows judges to use
their personal judgment.
 It places trust in judges and provides insights into the issues. The oath of bringing justice to
the country by the Judges does not change with judicial activism. It only allows judges to do
what they see fit within rationalised limits. Thus showing the instilled trust placed in the
justice system and its judgments.
 Judicial Activism helps the judiciary to keep a check on the misuse of power by the state
government when it interferes and harms the residents. 
 In the issue of majority, It helps address problems hastily where the legislature gets stuck in
taking decisions.
Cons Associated with Judicial Activism 

 Firstly, when it surpasses its power to stop and misuse or abuse of power by the
government. In a way, it limits the functioning of the government. 
 It clearly violates the limit of power set to be exercised by the constitution when it overrides
any existing law. 
 The judicial opinions of the judges once taken for any case becomes the standard for ruling
other cases.
 Judicial activism can harm the public at large as the judgment may be influenced by personal
or selfish motives. 
 Repeated interventions of courts can diminish the faith of the people in the integrity, quality,
and efficiency of the government.

Judicial Activism Criticism

Judicial activism has also faced criticism several times. In the name of judicial activism, the
judiciary often mixes personal bias and opinions with the law. Another criticism is that the
theory of separation of powers between the three arms of the State goes for a toss with judicial
activism. Many times, the judiciary, in the name of activism, interferes in an administrative
domain, and ventures into judicial adventurism/overreach. In many cases, no fundamental rights
of any group are involved. In this context, judicial restraint is talked about. 
Judicial Activism VS Judicial Restraint
As mentioned earlier, Judicial Activism is the role played by the judiciary to uphold the legal and
constitutional rights of the citizens. Judiciary exercises its own power to implement or strike
down the laws and rules that infringes the right of the citizens or is for the good of the society at
large, whatever the case may be. 
While, on the other hand, Judicial Restraint is the second face of the coin. It is the polar opposite
of the activism which puts obligations on it to follow constitutional laws while implementing its
duties. It encourages the judiciary to respect the laws or rules set out in the constitution. 
Judiciary has gained power with judicial activism as the judges can take up issue suo-motu
wherever they think that constitutional laws are being violated, however, with judicial restraint,
the same judiciary has to abide by the executive who is given the sole power to legislate for the
public. 

Way forward in Judicial Activism

Judicial activism is a product fabricated solely by the judiciaries and not backed by the
Constitution. When the judiciary surpasses the line of the powers set for it in the name of judicial
activism, it could be rightly said that the judiciary then begins to invalidate the concept of
separation of powers set out in the Constitution.
If judges can freely decide and make laws of their choices, it would not only go against the
principle of separation of powers but will result in chaos and uncertainty in the law as every
judge will start writing his own laws according to his fads and quirks.
Judicial exercise has to be respected to maintain a clear balance.
Making laws is the function and duty of the legislature, to fill the gap of laws and to implement
them in a proper manner. So that the only work remaining for the judiciary is interpretations.
Only a fine equilibrium between these government bodies can sustain the constitutional values.

Public Interest Litigation (PIL) in India

A Public Interest Litigation (PIL) is introduced in a court of law not by the aggrieved party but
by a private party or by the court itself.

 PILs have become a potent tool for enforcing the legal obligation of the executive and the
legislature.
 The chief objective behind PILs are ensuring justice to all and promoting the welfare of
the people.
 It is generally used to safeguard group interests and not individual interests, for which
Fundamental Rights have been provided.
 The Supreme Court of India and the High Courts have the right to issue PILs.
 The concept of PILs stem from the power of judicial review.
  The concept of PILs have diluted the principle of locus standi, which implies that only
the person/party whose rights have been infringed upon can file petitions.
 It has most ideally and commonly been used to challenge the decisions of public
authorities by judicial review, to review the lawfulness of a decision or action, or a failure
to act, by a public body.
 PILs have played an important role in India’s polity. They have been responsible for
some landmark judgements in India such as the banning of the instant triple talaq, opened
up the doors of the Sabarimala and the Haji Ali shrines to women, legalised consensual
homosexual relations, legalised passive euthanasia, and so on.

Procedure to File PIL in India

Any Indian citizen or organisation can move the court for a public interest/cause by filing a petition:

1. In the SC under Article 32

2. In the High Courts under Article 226

The court can treat a letter as a writ petition and take action on it. The court has to be satisfied that
the writ petition complies with the following: the letter is addressed by the aggrieved person or a
public-spirited individual or a social action group for the enforcement of legal or constitutional rights
to any person who, upon poverty or disability, are not able to approach the court for redress. The
court can also take action on the basis of newspaper reports if it is satisfied with the case.

History of Public Interest Litigation (PIL) in India

In 1979, Kapila Hingorani filed a petition and secured the release of almost 40000 undertrials from
Patna’s jails in the famous ‘Hussainara Khatoon’ case. Hingorani was a lawyer. This case was
filed in the SC before a Bench led by Justice P N Bhagwati. Hingorani is called the ‘Mother of PILs’
as a result of this successful case. The court permitted Hingorani to pursue a case in which she had
no personal locus standi making PILs a permanent fixture in Indian jurisprudence.
Justice Bhagwati did a lot to ensure that the concept of PILs was clearly enunciated. He did not
insist on the observance of procedural technicalities and even treated ordinary letters from public-
minded individuals as writ petitions. Justice Bhagwati and Justice V R Krishna Iyer were among
the first judges in the country to admit PILs.

Significance of Public Interest Litigation (PIL) in India

The original purpose of PILs have been to make justice accessible to the poor and the marginalised.

 It is an important tool to make human rights reach those who have been denied rights.
 It democratises the access of justice to all. Any citizen/agency who is capable can file
petitions on behalf of those who cannot or do not have the means to do so.
 It helps in judicially monitoring state institutions like prisons, asylums, protective homes, etc.
 It is an important tool in judicial review.
Criticism of Public Interest Litigation (PIL) in India
Off late, PILs have become a tool for publicity. People file frivolous petitions which result in the
wastage of time of the courts. People have used them with a political agenda as well. They
unnecessarily burden the judiciary. Even if the petition is eventually dismissed, the courts spend
time and effort on them before dismissing them.
At present, only judges have the power to dismiss a petition. The Registry of the SC or HC only
ensures that the technical requirements of filing a petition are fulfilled. As a result of which
petitions are admitted to the court irrespective of the merits of the case.

Current Affairs related to PIL in India

Various news keep on revolving PIL in India as it is one of the most accessible public
instruments that can used to seek  judicial action. Check the latest news related to PIL below:

 PIL was moved to quash the PM CARES fund

 Public Interest Litigation has been filed in the Supreme Court of India seeking directions
to the Government of India to make arrangements in order to rescue and bring the Indian
Migrants stranded in Gulf Countries
 A petition has been filed before the Supreme Court of India, seeking directions to States,
their Municipal authorities and local self government authorities to ensure protection of
rights of the sanitation workers who are also essential service providers amidst the
nationwide lockdown in wake of COVID-19 outbreak

RULE OF LAW
The Rule of Law- is a basic requirement for a democratic government. And for the maintenance of rule of
law, there must be an independent and impartial judiciary. It is embodied in the concept of rule of law that
equality before the law or equal protection of the laws is ensured to all citizens, and every citizen is
protected from arbitrary exercise of power by the State. Thus in a state professing the rule of law, the aim
should be to provide for a system which secures to its citizens adequate procedure for the redress of their
grievances against the state before forums which are able to administer justice in an impartial manner
without any fear or favour.
Rule of Law in India
Each country has devised its own system to ensure the maintenance of the rule of law. The
Indian Constitution embodies the modern concept of the rule of law with the establishment of a
judicial system which should be able to work impartially and free from all influences. The rule
of law pervades over the entire field of administration and every organ of the State is regulated by the rule
of law. The concept of the rule of law would lose its vitality if the instrumentalities of the state are not
charged with the duty of discharging their function in a fair and just manner. It has been held that the rule
of law pervades the Constitution as its basic feature and cannot be taken away even by an amendment of
the Constitution.
Constitutional Provisions for Rule of Law
Fundamental Rights: Indian Constitution enshrines the fundamental rights to individuals which operate as
limitations on the exercise of powers by the government. If there is an infringement of the Fundamental
Rights of a citizen, the rule of law requires that there should be a proper forum for the address of his
grievances. For this purpose, it is provided that an aggrieved person may even move the Supreme Court
directly by appropriate proceedings for the enforcement of his fundamental rights. The rule of law under
the Constitution thus serves the needs of the people. It recognises the social reality and tries to adjust
itself to it from time to time avoiding the authoritarian path. It is specifically provided that the state shall
not deny to any person, equality before the law or the equal protection of law. The absence of
arbitrary power is the first essential of the rule of law upon which the Indian constitutional system
is based. In a system governed by the rule of law, discretion, when conferred upon executive
authorities, must be confined within clearly defined limits. This means that decision should be made
by the application of known principles and rules and, in general, such decisions should be predictable
and the citizen should know where he stands. Directive Principles: The Indian Constitution
lays down in Part IV the Directive Principles of State Policy. It enjoins to bring about a social order
in which justice, social, economic and political, shall prevail all the institutions of national life. It
directs it to work for an egalitarian society where there is no concentration of wealth, where there
is plenty, where there is equal opportunity for all, to education, to work, to livelihood, and where
there is social justice.
It is true that the representatives of the people are charged with the responsibility of realising the
aims and objectives of the Constitution, but left to themselves there is a possibility that uncontrolled
and unrestricted power might lead to an authoritarian State. It is here that the DPSPs. come
into picture & serve as the beacon lights for both the politicians as well as the judiciiary who is
responsible for ensuring that the govt. of the day respects the rights of the people & acts as per rule of
law.

JUDICIARY VS. LEGISLATURE

Conflict between legislature and the judiciary has often given rise to anxiety and grave concern to the
governments at the Centre and the States. The executive heaves a sigh of relief when the conflict gets
resolved or the matter is put in the cold storage after initial heat over the powers each of these wings of
the States enjoy under the Constitution subsidies. There are a number of cases where friction between the
two has arisen. There has been a perennial conflict not only in India but also in England about the
respective rights and privileges of Members of Parliament and the judiciary

The Indian Scene

In India, under the written Constitution, the three organs of the Government, viz. the Legislature,
judiciary and the executive, have to function within their respective powers and none of them can exceed
its powers. Whether, any one of these organs has exceeded its powers or not, is a matter of judicial
interpretation. In several decisions of the Supreme Court, it has been held that the Supreme Court is the
ultimate interpreter of the Constitution and its interpretation is binding on all courts, tribunals and
authorities in this country. Under article 141 of the Constitution, the law declared by the Supreme Court is
binding on all parties. So, if there is any doubt that any particular organ of Government has exceeded its
powers, the interpretation ultimately rests with the Supreme Court. Even the powers granted by the
Constitution to the Members of Parliament and the Assembly are subject to other provisions of the
Constitution. They cannot act arbitrarily; nor can they deprive the citizens of their fundamental rights
arbitrarily. There is a provision in the Constitution for codifying the laws relating to the privileges of
legislatures and if Parliament makes such a law that infringes with Article 13 of the Constitution; validity
of the same can be tested before the Supreme Court in the same manner as any other legislation. So, the
scheme of the Constitution does not contemplate that Parliament or a State Legislature is not at all
liable to be questioned for any violation of law since rule of law is the corner-stone of the Constitution of
India. Though Legislatures in India have plenary powers they function within limits prescribed by the
material and relevant provisions of the Constitution.
Main areas of conflict
Following are the Main areas of conflict between the Legislature and the Judiciary:
(a) Existence, extent and scope of Parliamentary privileges and power of Legislatures to punish for
contempt,
(b) Interference in the proceedings of Parliament/Legislatures,
(c) Decisions given by the Presiding Officers of Legislatures under the Anti-defection law;
and
(d) Decision given by the Presiding Officers of Legislatures in administration of their Secretariats.
Conclusion
With an aim to reduce the conflict between the Legislature and Judiciary, it is recommended that
the Presiding Officers should not be made party personally in a suit pertaining to the administrative
matters of their Secretariats. The suit, in turn, could be filed against the concerned Legislature through the
Secretary of the Legislature who could represent the legislature in the Court and if necessary, appear
personally in the case. But, it is NOT recommended to enlarge the scope of article 361 to provide the
same protection to the Presiding Officers as enjoyed by the President of India and the Governors of
States. Some critics opine that there was no need to codify the privileges of the Legislature. This
argument is understandable as it is based on the apprehension that it will give rise to more judicial
interference. On the other hand, from the point of view of citizens, the codification of privileges of
Legislatures may be highly desirable, a view-point which is strongly supported by the press and the
media. It is a matter of satisfaction that there have not been too many cases where the Legislature was
called upon to exercise its powers for punishing for the breach of privilege and contempt of the House.
But, the relations between legislature and judiciary in the context of privileges and immunities would
continue to cause some uneasiness till the time grammar and spirit of democratic form of government
became the grain of Indian society.
Anyways, it is needless to say that the strength of the democracy lies in the existence of harmonious
relations among different organs of the State, in particular, Legislature and Judiciary. These relations
can be harmonized through informal mechanisms and mutual understanding. After all, every detail
relating to the functioning of democracy cannot be put in black and white

Landmark Judgments Passed By the

Supreme Court in Recent Times
Aadhaar Verdict
In a significant move, the Supreme Court constitution bench struck down several provisions
in the Aadhaar Act in September 26 2018.
The Supreme Court upheld the Aadhaar scheme as constitutionally valid. However, the apex
court's five-judge constitution bench also struck down
several provisions in the Aadhaar Act.
Court’s Verdict:
-The Supreme Court upheld the validity of Aadhaar saying sufficient security measures are
taken to protect data and it is difficult to launch surveillance on citizens on the basis of Aadhaar.
-A five-judge bench led by former CJI Dipak Misra asked the government to provide more
security measures as well as reduce the period of storage of data.
-The SC asked the Centre to bring a robust law for data protection as soon as possible.
 -The SC said Aadhaar cannot be made mandatory for openings of a bank account and for getting
mobile connections.
-The SC said that Aadhaar must not be made compulsory for school admission and the
administration cannot make it mandatory.
-The SC has made linking of Aadhaar and PAN mandatory. The apex court also made Aadhaar
mandatory for fi ling of Income Tax Return(ITR)
-The SC directed the government to ensure that illegal migrants are not issued Aadhaar to get
benefi ts of social welfare schemes.
-The apex court struck down the provision in Aadhaar law allowing sharing of data on the
ground of national security.
-The SC said there is a fundamental difference between Aadhaar and other identity proof
as Aadhaar cannot be duplicated and it is a unique identification.
-It added that Aadhaar is to empower the marginalised sections of the society, and it gives them
an identity.
Impact of the Judgement
-Striking down of Regulation 27(1) and reducing storage period of authentication data from five
years to six months will ensure personal data is not misused. Amending Regulation 26 and
making metabase relating to a transaction impermissible will prevent fake profi ling of an
Aadhaar holder.
-Now citizens can fi le a complaint in case of data theft, which earlier could be done by the
government (i.e. UIDAI) alone due to Striking down of Section 47.
-Now Aadhaar may only be used by the government, and not by private parties as portion of
Section 57 of the Aadhaar Act which enables body corporate and individual to seek
authentication is held to be unconstitutional.
-Aadhaar could unleash its potential for good governance and effective distribution of social
welfare services. Aadhaar was launched for the “inclusion” of the marginalised section of society
and it cannot be crucifi ed on the possibility of failure in authentication. Aadhaar gives dignity to
the marginalised. Dignity to the marginalised outweighs privacy.
-The constitution bench strikes down the National security exception (Section 33(2)) under the
Aadhaar Act while giving citizens the opportunity of being heard before disclosure of
information under section 33(1) of the Aadhaar Act. This will indirectly ensure greater privacy
of individual’s Aadhaar data while restricting the government accessibility to it.
-The Supreme Court has made exception for children saying that no child can be denied benefi
ts of any scheme if he or she doesn’t have Aadhaar card. Students of CBSE, NEET, UGC also do
not require Aadhaar number to appear in exams. Even schools cannot seek Aadhaar card for
admissions.

Adultery Verdict
The act of adultery is a voluntary sexual intercourse between a married
person and someone other than that person’s current spouse or partner.
Section 497 of the IPC
Section 497 gives a husband the exclusive right to prosecute his wife’s lover. A
similar right is not conferred on a wife to prosecute the woman with whom her
husband has committed adultery.
Secondly, the provision does not confer any right on the wife to prosecute her
husband for adultery. Further, the law does not take into account cases where
the husband has sexual relations with an unmarried woman.

In a landmark judgement in 2018, the Supreme Court scrapped the 150-year old adultery law.
The Verdict
Supreme Court in unanimous verdict said Adultery law deprives women of dignity, has to go.
The five-judge bench (headed by former CJI Deepak Misra) held that Section 497 was an
archaic law that violates of the right to equality and destroys and deprives women of dignity
The court held that the 158-year-old law was unconstitutional and fell foul of Article 21 (Right
to life and personal liberty) and Article 14 (Right to equality). It destroys and deprives women of
dignity and offends sexual freedom of women.
The judgment said that making a special provision for women to escape culpability was
constitutionally valid under Article 15(3) that allows such a law.
Adultery cannot be a crime unless it attracts the scope of Section 306 (abetment to suicide) of
the IPC. It can be ground for civil issues including dissolution of marriage but it cannot be a
criminal offence.
Unequal treatment of women invites the wrath of the Constitution.

What were the ambiguities in the adultery law?

-Adultery law under Section 497 views women as a property of men. The law was
discriminatory.The right under the act was not available to an aggrieved wife if her husband was
found to be in an adulterous relationship.
-A woman committing adultery is not deemed to be an “abettor” to the offence. Also it legalises
the act of Adultery if committed by with the consent or connivance of the husband of the woman
who is party to the act.
-The dominant argument in the court hearing was that Section 497, governing adultery law,
discriminated against men by not making women equally culpable in an adulterous relationship.
It was also argued that adultery law gave a license to women to commit the crime.
-Adultery law violated the fundamental right of equality guaranteed under Articles 14 and 15 of
the Constitution.

What can be concluded?

-Adultery is a relic of the past.

-Adultery might not be cause of unhappy marriage, it could be result of an unhappy marriage.
-Adultery can be a ground for divorce. It can be part of civil law involving penalties but not
criminal offence.
-The Supreme Court also rejected the argument that unmarried women should be brought under
the purview of the adultery law.
-The argument was that if an unmarried men establishes adulterous relationship with a married
woman, he is liable for punishment, but if an unmarried woman engages in a sexual intercourse
with a married man, she would not be held culpable for the offence of adultery, even though both
disturb the sanctity of marriage.
-The Supreme Court held that bringing such an unmarried woman in the ambit of adultery law
under Section 497 would mean a crusade by a woman against another woman. The ambiguity
related to adultery law remained unresolved.

Sabarimala Verdict
Judgement:
In a 4-1 majority decision, the Supreme Court on September 28, 2018 lifted the ban, which it
termed as a violation of women’s right to practice religion. Former Chief Justice Dipak Misra,
Justice AM Khanwilkar, Justices Rohinton F Nariman and Dhananjaya Y. Chandrachud
concurred with each other while Indu Malhotra dissented saying that courts shouldn’t determine
which religious practices should be struck down or not. Observation made by the Court
at various bench
Top quotes: “In the theatre of life, it seems, man has put the autograph and there is no space for
a woman even to put her signature”, “Patriarchy in religion cannot be allowed to trump right to
pray and practise religion” and “To treat women as children of lesser god is to blink at the
Constitution
-Restrictions on women in religious places are not limited to Sabarimala alone and are prevalent
in other religions too. The issue of entry of women into mosques and Agiyari could also be taken
by the larger bench.
-Both sections of the same religious group have a right to freely profess, practise and propagate
their religious beliefs as being integral part of their religion by virtue of Article 25 of the
Constitution of India.
-Devotion cannot be subjected to gender discrimination.
Present Situation
In 2019 five-judge bench of the Supreme Court referred review pleas in the Sabarimala temple
issue to a larger seven-member bench.
-In 3:2 majority verdict, two judges stuck to their earlier stand of (2018 Judgement) quashing the
custom which barred entry of women between the ages of 10 and 50 years.
-The split decision came on 65 petitions – 56 review petitions, four fresh writ petitions and five
transfer pleas – which were filed after the apex court verdict of September 28, 2018 sparked
violent protests in Kerala.
Recently A nine-judge Constitution Bench of the Supreme Court upheld the decision of the
Sabarimala Review Bench to refer to a larger Bench questions on the ambit and scope of
religious freedom practised by multiple faiths across the country.

Understanding the arguments against the temple entry

-According to two women’s groups, People for Dharma and Chetana, Ayyappa in Sabarimala is
a celibate and his individual rights should be protected under Article 25 of the Constitution. It
was argued the rule is not discriminatory for it is neither based on misogyny nor menstrual
impurity; rather Ayyappa’s celibacy is a fundamental character of the temple.
-Religious communities/denominations should decide what constitutes an essential religious
practice: It should not be decided by judges on the basis of their personal viewpoints.
 -Such points should certainly be considered, as they lead to a conclusion that in a secular,
democratic state, religious orthodoxy should be protected just like other freedoms, as long as
such orthodoxy is not oppressive toward other fundamental values.
-By determining which particular practice or custom is essential or integral to a religion, the
court enters into the realm of theology, thus leading to judicial overreach and leaving its world of
laws and constitutional rights.
-According to Travancore Devaswom Board, Prohibition is not because of male chauvinism. It
is linked to the penance and character of the deity. Women accept the prohibition. It is not
imposed on them.
-According to Justice Indu Malhotra (from the 5-Judge bench), Court should not interfere unless
if there is any aggrieved person from that section of religion” or if a tradition is a “pernicious,
oppressive, or a social evil.
Key Points to decode
-The ruling of the Supreme Court has attracted praise as well as criticism. Two ideas that lay at
the foundation of the Indian Constitution – equality and secularism – have been brought to bear
during this debate.
-Secularism, however, is understood differently in India than it is in Europe or the United States.
It does not focus on separation of Church and state.
-In Hinduism, there is no church to separate the state from, and the same more or less applies to
Indian Islam as well.
-While there is more than one interpretation of the idea of secularism in India, it is often
understood that the state should treat all religious communities in the same way. It should, in
other words, keep equidistance.
-But what is a more secular approach: non-interference in the customs of religious communities
or the interference in them? The paradox of non-interference is that the secular state cannot not
reform the orthodox traditions that function within it. The paradox of interference is that the
secular state, by involving itself in reforming religious traditions, becomes a kind of religious
authority itself.
-Beyond secularism, another important idea in the Republic of India’s Constitution is the
equality of all of its citizens. Treating every community, the same way may perhaps be
understood as following both equality and secularism. But can equality of all citizens be
achieved while maintaining the equality of all communities?
-Let us take the case of women’s entry into temples. Equality of religious communities could be
understood as letting them practice their customs, including barring women from entering
religious places. But such equality of communities means the inequality of genders (and this
applies not only to the issue of women entry).
-Equidistance of the state toward religious communities should mean that either the state
interferes in all of their customs in the same way or lets them equally keep them. Whether one
supports the court judgment or not, it should be pointed out that it is a piecemeal legislation.
-Decades ago, the Indian Republic forced conservative Hindu temples to open their doors to
Dalits (untouchables) but the same was not done with regard to shrines that do not admit women
(the ruling of the Bombay court in 1950s retained the access rules of Sabarimala).
-Sabarimala may now join the list of temples open to women, but there are other Hindu temples
that keep their gates shut to them. Moreover, there are possibly even more shrines of Muslim
saints (tombs called dargahs) that traditionally disallow women from entering the inner sanctum.
In 2016, the Supreme Court similarly forced the famous Haji Ali Dargah to open itself to
women, but the same did not apply to other Islamic places of worship. The principle of
equidistance has been continuously broken.
-Justice Malhotra’s point was that the court should not interfere unless there is “any aggrieved
person.” Her approach is legally sound but on the other hand this is exactly what leads to
piecemeal legislation: Only those religious communities that face legal proceedings (because of
people that demand changes) can be reformed with state interference. It is, in a way, a
moderately conservative approach.
There is no change unless somebody demands it. This approach may be legally correct, but it is
against the spirit of treating every community and every citizen in the same way.
-Secondly, while Justice Malhotra has full right to a dissenting voice, the entire judgment was
declared precisely because there were “aggrieved persons.” The ruling about Sabarimala was a
response to a writ petition of women lawyers.
-Similarly, the opening of Haji Ali Dargah was a reaction to actions of a movement of Muslim
women. Some votaries of tradition claim that the activists that strive for women entry act as
provocateurs who attack customs from anti-religious positions and not because there are
believers. Past incidents such as
those in Sabarimala suggest, however, that there are indeed devout women that do want to gain
access to their places of worship.
-Article 26 of India’s constitution claims that “every religious denomination or any section
thereof shall have the right (a) to establish and maintain institutions for religious and charitable
purposes; (b) to manage its own affairs in matters of religion.” Article 25, however, declares that
“all persons are equally entitled to freedom of conscience and the right freely to profess, practise
and propagate religion.” But “(2) Nothing in this article shall affect the operation of any existing
law or prevent the State from making (b) providing for social welfare and reform or the throwing
open of Hindu religious institutions of a public character to all classes and sections of Hindus.”
-The last sentence, therefore, is a yet another example of violating the idea of equal treatment of
religions as it obliges the state to open only Hindu religious institutions.
-But it also makes it transparently clear, that all Hindus should be given access to all temples. If
one should go by this article alone, the state should force all Hindu temples to be open to women,
but only Hindu women. Once again, all unequal approaches create further dichotomies and space
for further precedents.
It may seem that in cases where equality and secularism come into conflict, a democratic state
should put equality first. And if the rights of citizens would come into conflict with the rights of
communities, the former should be given primacy. Using a “community” as a legal denomination
will always remain problematic if the state wants to secure equal rights of all citizens, while the
communities retain different customs. At same time, however, an absolute realization of such
attempts certainly does mean large-scale interference of the state in the existence of conservative
communities.

Section 377 Partly Struck Down

(Decriminalization)
The Supreme Court in a landmark judgment legalised gay sex by holding that sex
between two consenting adults is not a crime. A five-judge bench of the Supreme
Court headed by CJI Dipak Misra gave the final verdict in 2018.
The Verdict
 -SC made it clear that Article 14 of the Constitution guarantees equality before law and this
applies to all classes of citizens thereby restoring ‘inclusiveness’ of LGBTQ Community.
-SC upheld the pre-eminence of Constitutional morality in India by observing that equality
before law cannot be denied by giving precedence to public or religious morality.
-SC noted that modern psychiatric studies and legislations recognise that gay persons and
transgender do not suffer from a mental disorder and therefore cannot be penalized.
-SC observed that homosexuality is not unique to humans, which dispels the prejudice that it
is against the order of nature.
-Supreme Court stated that the ‘Yogyakarta Principles on the Application of International Law
in Relation to Issues of Sexual Orientation and Gender Identity’ should be applied as a part of
Indian law.
-Any kind of sexual activity with animals and children remains a penal offence.

Analysis of the judgement

-Court held that LGBTQ possess full range of constitutional rights, including sexual orientation
and partner choice, LGBTQ has equal citizenship and equal protection of laws. It will help in
enforcing principles of social justice, based upon the importance of diversity and human rights.
-Courts must protect dignity of an individual as right to live with dignity is recognised as
fundamental right.
-There is an addition of new test of constitutional morality to examine the constitutionality of
laws enacted by Parliament. The verdict enlarges the scope of personal freedom by giving
preference to constitutional
morality over social morality.
-The verdict is a vital measure for HIV prevention in the country.The decision entail access to
health services and treatment facilities. It asks for sensitive counsellors and health workers “to
help individuals, families, workplaces and educational and other institutions” to understand
sexuality and foster equality, non-discrimination and a respect of human rights
-Legally, the decision will make persecution of same-sex couples more difficult, and
organisations working on issues of sexual rights with LGBT communities now have more
freedom to operate without police harassment.
-The SC also emphasised that attitudes and mentality have to change to accept the distinct
identity of individuals and respect them for who they are rather than compelling them to become
who they are not.

Euthanasia Verdict
The Supreme Court said passive euthanasia is permissible. The Supreme Court gave
legal sanction to passive euthanasia in a landmark verdict, permitting ‘living will’
by patients on withdrawing medical support if they slip into irreversible coma. Supreme
Court recognised the right to die with dignity as a fundamental right.

What is Passive euthanasia/Active Euthanasia?

 Passive euthanasia is a condition where there is withdrawal of medical treatment with the
deliberate intention to hasten the death of a terminally-ill patient.
Active euthanasia, on the other hand, is when doctors intentionally intervene to end a patient’s
life. This practice is still illegal in India.

What is a Living will?

Living will is a written document that allows a patient to give explicit instructions in advance
about treatment to be administered when he
or she is terminally ill or no longer able to express consent.

Aruna Shanbaug Case

Aruna Ramchandra Shanbaug, a nurse working at the King Edward Memorial Hospital in
Mumbai’s Parel, was brutally raped and gagged with a dog chain by award boy - Sohnlal
Bhartha Walmiki. The incident that jolted the nation happened
on November 27, 1973. Shanbaug suffered serious brain and cervical cord injuries and cortical
blindness due to asphyxiation. The medical condition left her in a vegetative
state for the next 42 years until she died on May 18, 2015.

Ayodhya Verdict
The centre was directed (November 2019) by five-member bench headed by former CJI
Ranjan Gogoi to form within given time (three months) a trust, which will build a temple
at the disputed site in Ayodhya. SC directed the Centre to allot a 5-acre plot to the Sunni
Waqf Board for building a mosque.

The issue in brief

-A section of Hindus claims that the disputed land in the present-day Ayodhya, Uttar Pradesh is
the site of Rama’s birthplace where the Babri Masjid once stood. The mosque was constructed
during 1528-29 by demolishing the Hindu shrine by Mir Baqi, a commander of the Mughal
Emperor Babur.
-The political, historical and socio-religious debate over the history and location of the Babri
Mosque, and whether a previous temple was demolished or modified to create it, is known as the
Ayodhya dispute.
-In 1992, the demolition of Babri Masjid by Hindu nationalists triggered widespread Hindu-
Muslim violence. Since then, the archaeological excavations have indicated the presence of a
temple beneath the mosque rubble, but whether the structure was a Rama shrine (or a temple at
all) remains disputed.

The verdict in detail

-The Ram Janmabhoomi-Babri Masjid land title case was awarded in favour of “the deity of
Lord Ram” who was held to be a “juristic person”.
-The court directed that the disputed 2.7-acre land is to be handed over to a trust formed by the
Central Government. This trust will build a temple on the disputed property.
-The Muslim party is to be given a five-acre piece of land “either by the Central Government out
of the acquired land or by the Government of Uttar Pradesh within the city of Ayodhya.
-The court directed that the Centre will, within three months, form the scheme of setting up a
board for a trust, which will formulate rules and powers for the construction of the temple.
 -The possession of the inner and outer courtyard is to be handed over to the trust for the
management and development of the temple. A “statutory receiver” will be in possession of the
land till completion of the scheme.
-The court directed the State and Centre to act in consultation with each other to adhere to the
orders of the court and for formulation and maintenance of the trust.

Article 142, invoked by SC to give land for a mosque

The Supreme Court, implicitly referring to the demolition of the Babri Masjid at the
disputed site, said that it was invoking Article 142 “to ensure that a wrong
committed must be remedied”. Article 142(1) states that “The Supreme Court in the exercise of
its jurisdiction may pass such decree or make such order as is necessary for doing complete
justice in any cause or matter pending before it, and any decree so passed or order so
made shall be enforceable throughout the territory of India in such manner as may be prescribed
by or under any law made by Parliament and, until provision in that behalf is so made, in such
manner as the President may by order prescribe”.

Chief Justice of India under Right to Information

Justice Sanjiv Khanna said the independence and accountability go hand in hand and that
independence of the judiciary can’t be ensured only by denying information.
In Central public information officer, Supreme Court of India vs Subhash Chandra Agarwal
case a five-judge Constitution Bench of Supreme Court declared that the Office of the Chief
Justice of India (CJI) is a ‘public authority’ under the Right to Information (RTI) Act.

Understanding Judicial Independence and Judicial Accountability

-It took nine years for the Supreme Court to acknowledge that judicial independence is
inseparable from judicial accountability, and that its resistance to disclose information in public
interest will erode its credibility as an institution.
-The Constitution bench comprising the Chief Justice of India, Ranjan Gogoi, and Justices NV
Ramana, DY Chandrachud, Deepak Gupta and Sanjiv Khanna examined a batch of three civil
appeals raising questions of constitutional importance bearing on the right to know, the right to
privacy and the transparency, accountability and independence of the judiciary.
-In the first appeal, the respondent sought information relating to complete correspondence
between the then CJI and Justice R Reghupati of the Madras High Court in 2009, following a
story in The Times of India that a Union minister had approached the latter through a lawyer, to
influence his judicial decisions.
-In the second appeal, the respondent sought details of Collegium file notings relating to
appointment of Justice HL Dattu, Justice AK Ganguly and Justice RM Lodha to the Supreme
Court.
-In the third appeal, the respondent sought information concerning declaration of assets made by
the puisne judges of the Supreme Court to the CJI, and the judges of the High Courts to the
chief justices of the respective High Courts. The administrative wing of the Supreme Court was
the appellant in all the three.
-The court held that the independence of the judiciary is not limited to judicial appointments
to the Supreme Court and High Courts, as it is a much wider concept which takes within its
sweep independence from many other pressures and prejudices. It consists of many dimensions,
including fearlessness from other power centres, social, economic and political, freedom from
prejudices acquired and nurtured by the class to which the judges belong and the like. Judicial
independence and accountability go hand in hand as accountability ensures, and is a facet of
judicial independence.
-While applying the proportionality test (that is, how much to disclose), the type and nature of
information are relevant factors. The bench reasoned that distinction must be drawn between the
final opinion or resolutions passed by the Collegium with regard to appointment/elevation and
transfer of judges with observations and indicative reasons and the inputs/data or details which
the Collegium had examined.
-The rigour of public interest in divulging the input details, data and particulars of the candidate
would be different from that of divulging and furnishing details of the output, that is, the
decision, the bench held.
-In the former, public interest test would have to be applied keeping in mind the fiduciary
relationship (if it arises), and also the invasion of the right to privacy and breach of the duty of
confidentiality owed to the candidate or the information provider, resulting from such disclosure,
the bench explained.
-The bench justified the recent decision of the Collegium not to disclose reasons for non-
selection of certain candidates for the posts of judges of High Courts and the Supreme Court
because disclosure would compromise their right to privacy. Regarding information relating to
judicial appointments, it observed :
-Here, SC drew distinction between ‘input’ and ‘output’. Output is the final outcome of
collegium resolution, while input is the observations, indicative reasons, inputs and data
collegium examined.
-Here, only names of judges recommended by the Collegium (output) can be disclosed, not the
reasons (input). SC said “Right to information should not be allowed to be used as a tool of
surveillance.”
-Thus, while the government discloses its reasons for not accepting the collegium’s
recommendations, the judiciary’s defence remains absent from public debate.
-Also, SC said the information relating to collegium deliberations is treated as confidential third-
party information.
-In such cases, the PIO should follow the procedure mandated in Section 11 of the RTI Act.
That is, a notice should be first issued to the third party — the judge concerned — about the RTI
request for information. The view of the third party should be considered before the PIO takes a
call.
The court held that right to information and right to privacy are two faces of the same coin.
Having ascertained whether the information is private or not, a judge is required to adopt a
balancing test to note whether public interest justifies disclosure of such information under
Section 8(1)(j) of the RTI Act, he suggested. The exemption of public interest occurring under
Section 8(1)(j) requires a balancing test to be adopted. The two separate concepts “interest of the
public” and “something in the public interest” need to be distinguished. Those matters which
affect political, moral and material welfare of the public need to be distinguished from those for
public entertainment, curiosity or amusement. Section 8(1) (j) requires to hold that only the
former is an exception to the exemption. However, the bench in favour of
pro-active disclosure of information has to be tested in practice, especially when the centre is
unwilling to notify the revised Memorandum of Procedure (MoP) in the light of the Supreme
Court’s judgment in 2015, to regulate appointments and transfers of judges of the higher
judiciary.

Supreme Court declared Private Property is a Human

Right
Key points from the judgement
The state cannot deprive citizens of their property without the sanction of law in a democratic
polity governed by the rule of law.
The court ruled that to forcibly dispossess citizens of their private property, without following
the due process of law, would be to violate a human right, as also the constitutional right under
Article 300A of the Constitution.
Doctrine of Adverse Possession: The state cannot trespass into the private property of a citizen
and then claim ownership of the land in the name of ‘adverse possession.
Grabbing private land and then claiming it as its own makes the state an encroacher.
In 1967, when the government forcibly took over the land, ‘right to private property was still a
fundamental right’ under Article 31 of the Constitution.
-Right to Property ceased to be a fundamental right with the 44th Constitution Amendment in
1978.
-It was made a Constitutional right under Article 300A. Article 300A requires the state to follow
due procedure and authority of law to deprive a person of his or her private property.

The Case
The case was of an 80-year-old woman whose 3.34-hectare land was forcibly taken by the
Himachal Pradesh Government in 1967, for constructing a road.
The Court used its jurisdiction under Article 136 and Article 142 of the Constitution to direct the
government to pay the woman compensation of 1 crore rupees.

Supreme Court modifies its order on Dowry

Harassment Law
The Supreme Court restored an immediate arrest provision in the dreaded Section 498A,
IPC, with the rider that those arrested for cruelty to a married woman over dowry can
approach the courts for bail to prevent the alleged misuse of the law.
The Verdict:
-Supreme Court did away with the requirement of a family welfare committee to examine
veracity of complaints under Section 498A of IPC. It advocated for balancing interests of both
the sides in dowry harassment cases.
-The court refrained from issuing any directive for automatic or mandatory arrest of husband
and his family members under these cases, noting that false cases also lead to “social unrest”.
-The court restored the power of the police to decide whether or not to make arrest under
Section 498A after it modified an earlier order of the apex court.
 -The court held that there is no need for a family welfare committee to examine complaints and
that police officers, based on facts of the case and governed by the legal provisions, should
decide on their own.
-It also said that anticipatory bail provision shall remain intact for the husband and his family
members. Those arrested for cruelty to a married woman over dowry can approach the courts for
bail to prevent the alleged misuse of the law.
-The offence is both non-cognisable and non-bailable, which implies that bail can only be
granted at the discretion of a magistrate. The bail petitions will be heard the same day as far as
possible
Arguments Against Section 498A IPC
-The law has become a source of blackmail and harassment of husbands and others. As once a
complaint (FIR) is lodged it becomes an easy tool in the hands of the Police to arrest or threaten
to arrest the husband and other relatives without even considering the intrinsic worth of the
allegations and making a preliminary investigation.
-Police visit the office premises of men and his reputation is harmed. Police can also pick up the
relatives if the complaint is harmed. Also, it does not require any proof before arrest. Even no
investigation is required. So, if there is a small dispute woman can use the section to seek
revenge.
-Gifts are sometimes misunderstood as dowry. So, this can again pose a problem.
-When the members of a family are arrested and sent to jail, with no immediate prospect of bail,
the chances of amicable re-conciliation or salvaging the marriage, will be lost once and for all.
-Pragmatic realities have to be taken into consideration while dealing with matrimonial matters
with due regard to the fact that it is a sensitive family problem which shall not be allowed to be
aggravated
Need for Section 498A
-Women have always been subject to cruelty by male society. Laws like these help women to
fight back. Women feel they are being heard. There is a lot of need for laws like these in a
country like India.
-Women are continuously forced, tortured, threatened or abused for demand for something or the
other. The Section 498A of the IPC helps women to approach the court of law and punish the
wrongdoer.
-In many cases, women are also subject to mental cruelty. There is no law which can help the
woman to ease the mental pain caused to her. Acts like these help women in every possible
ways.
-Section 498A and legislations like Protection of Women from Domestic Violence Act have
been specifically enacted to protect a vulnerable section of the society who have been the victims
of cruelty and harassment. The social purpose behind it will be lost if the rigour of the provision
is diluted.
-The abuse or misuse of law is not peculiar to this provision. The misuse can however be
curtailed within the existing framework of law. For instance, the Ministry of Home Affairs can
issue ‘advisories’ to State Governments to avoid unnecessary arrests and to strictly observe the
procedures laid down in the law governing arrests.
The power to arrest should only be exercised after a reasonable satisfaction is reached as to the
bonafides of a complaint and the complicity of those against whom accusations are made. The
“Crime Against Women Cells” should be headed by well trained and senior lady police officers.
These steps would go a long way in preventing the so-called misuse. Counselling of parties
should be done by professionally qualified counsellors and not by the Police.

SC Bench strikes down NJAC Act as ‘unconstitutional

and void’
Declaring that the judiciary cannot risk being caught in a “web of indebtedness” towards the
government, the Supreme Court rejected the National Judicial Appointments Commission
(NJAC) Act and the 99th Constitutional Amendment which sought to give politicians and civil
society a final say in the appointment of judges to the highest courts

 The Bench in a majority of 4:1 rejected the NJAC Act and the Constitutional Amendment
as “unconstitutional and void.” It held that the collegium system, as it existed before the
NJAC, would again become “operative.”
 But interestingly, the Bench admitted that all is not well even with the collegium system
of “judges appointing judges”, and that the time is ripe to improve the 21-year-old system
of judicial appointments.

Important topics In News

Prashant Bhushan Case
The Supreme Court found that the two tweets by lawyer Prashant Bhushan amounts to
serious contempt of court.

How did the court respond to the first tweet?

 The court held the tweet tends to give an impression that the SC has in the last
six years played a role in the destruction of Indian democracy.
 It said that the tweet tends to shake the public confidence in the institution of
judiciary.
 It said that the tweet undermines the dignity and authority of the institution of
the SC and the CJI and directly affronts the majesty of law.

How did the court respond to the second tweet?

 The Bench held that this tweet was not against the CJI in his individual
capacity but as the head of the judiciary.
 It took exception to the “lockdown” remark and said that from March 23 to
August 4, its various Benches had 879 sittings.
  It noted that Bhushan himself not only appeared as a lawyer during this period
but also challenged the FIR against him.
 The court refused to accept his tweet as written out of anguish.
 It said magnanimity cannot be stretched to such an extent that may amount to
weakness in dealing with an attack on the very foundation of the institution of
judiciary.

What is Criminal contempt?

 Criminal contempt under Section 2(c) of the Contempt of Courts Act, 1971
means any publication which
1. Scandalises or tends to scandalise, or lowers or tends to lower the
authority of any court; or
2. Prejudices, or interferes or tends to interfere with, the due course of any
judicial proceedings, or
3. Interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner

Why is the contempt law seen as problematic?

 The judge himself acts as prosecutor and victim, and starts with the
presumption of guilt rather than innocence.
 Contempt proceedings are quasi-criminal and summary in nature.

Italian Marines’ Case

Why in news?

The Supreme Court (SC) of India would keep the Italian marines’ case alive.

What is the SC decision?

 The SC would keep the case alive until Italy pays adequate compensation for
the killing of two fishermen by its marines in 2012.
 It has indicated that it would not allow the closure of the trial until such
compensation is paid.
 It has ordered that the families of the victims be heard on this matter.
 It may seem pragmatic to keep any pending litigation alive until all dues
relating to it are paid and all legal issues are settled.
 However, the SC’s stand in the marines’ case is somewhat puzzling.

What did the PCA rule?

  The Permanent Court of Arbitration (PCA) at The Hague is an arbitral tribunal.
 It adjudicates disputes under the United Nations Convention on the Law of the
Sea (UNCLOS).
 In the Mariners’ case, the PCA has granted immunity to the marines.
 It also favoured Italy as the appropriate jurisdiction where they could be tried
for the crime.
 The PCA wants India to compensate for loss of life, physical harm, damage to
property and moral harm suffered by the crew members of St. Antony, the
fishing vessel involved.
 It mandated negotiations on the quantum.

Why pending the case doesn’t seem like a good idea?

 The Indian government has already declared that it would abide by the PCA’s
ruling.
 So, it does not seem proper to delay the process of bringing closure to the
matter.
 The Court’s resolve to obtain adequate compensation for the families of the
victims is welcome.

 But, it would be difficult to have a judicial determination of what quantum

would satisfy these requirements.
 The Centre may have approached the top court for formal permission to close
the pending trial proceedings as a matter of abundant caution.
 But, it could have approached the trial court itself through the public
prosecutor for withdrawal from prosecution under Section 321 of the CrPC.
 Too many legal tangles have already caused enough diplomatic rupture in the
progression of the Enrica Lexie-St. Antony case since 2012.

What could be done?

 The pendency of the matter in court should not become a bargaining point that
delays the reaching of a fair settlement.
 Continuing hearings may be seen as India being reluctant to cease all criminal
proceedings against the marines as per the ruling.
 India’s focus should now be on negotiating for compensation and ensuring a
purposive criminal trial in Italy.

SC Judgement on PM CARES Funds

Highlights
The PM Cares Funds was set up by the central government as a public charity trust
with the aim of dealing with emergency posed by COVID-19. A Public Interest
Litigation (PIL) was filed at the Supreme Court by an NGO to seek to transfer the
PM CARES Funds to National Disaster Response Funds (NDRF).

The NDRF was created under Section 46 of Disaster Management Act, 2005.

Judgement

The SC held that the organizations are free to contribute to NDRF and there are no
prohibition to such contributions. The court pronounced that as PM-CARES funds
was established as a public charitable fund, no direction can be issued by the court
to transfer the funds to NDRF.

Hindu Women’s Inheritance Rights

Why in News?

The Supreme Court has expanded a Hindu woman’s right to be a joint legal heir
and inherit ancestral property on terms equal to male heirs.

What is the ruling?

 The SC Bench ruled that a Hindu woman’s right to be a joint heir to the
ancestral property is by birth and does not depend on whether her father was
alive or not when the law was enacted in 2005.
 The Hindu Succession (Amendment) Act, 2005 gave Hindu women the right
to be coparceners or joint legal heirs in the same way a male heir does.
 Since the coparcenary (heirship) is by birth, it is not necessary that the father
coparcener should be living as on 9.9.2005, the ruling said.

What is the 2005 law?

 The Mitakshara school of Hindu law codified as the Hindu Succession Act,
1956 governed succession and inheritance of property but only recognised
males as legal heirs.
  The law applied to everyone who is not a Muslim, Christian, Parsi or Jew by
religion.
 Buddhists, Sikhs, Jains and followers of Arya Samaj, Brahmo Samaj are also
considered Hindus for the purposes of this law.
 In a Hindu Undivided Family, several legal heirs through generations can
exist jointly.

How did the case come about?

 While the 2005 law granted equal rights to women, questions were raised
whether the law applied retrospectively and if the rights of women depended
on the living status of their father.
 Different benches of the Supreme Court had taken conflicting views on the
issue. Different High Courts had also followed different views of the top
court as binding precedents.
 The Prakash v Phulwati (2015) case held that the benefit of the 2005
amendment could be granted only to “living daughters of living
coparceners” as on September 9, 2005 (the date when the amendment came
to force).
 In February 2018 a bench headed by Justice A K Sikri held that the share of
a father who died in 2001 will also pass to his daughters as coparceners
during the partition of the property as per the 2005 law.

EWS Quota Law

Why in news?

The Supreme Court has referred to a five-judge Constitution Bench a batch of

petitions challenging the Economically Backward Section (EWS) quota law.

What is the law?

 The 103rd Constitution Amendment of 2019 provides for 10% reservation in

government jobs and educational institutions for EWS.
 This reservation is provided by amending Articles 15 and 16 of the Constitution
that deal with the fundamental right to equality.
 [Article 15 prohibits discrimination on grounds of religion, race, caste, sex or
place of birth.
 Article 16 guarantees equal opportunity in matters of public employment.]
 The amendment adds an additional clause to both the provisions.
  This clause gives Parliament the power to make special laws for EWS like it
does for Scheduled Castes, Scheduled Tribes and OBCs.
 The states are to notify who constitute EWS to be eligible for reservation.

Padmanabhaswamy Temple Case

Why in news?

The Supreme Court upheld the right of the Travancore royal family to manage the
property of deity at Padmanabha Swamy Temple.

What is the case about?

 The central legal question was whether Marthanda Varma could claim to be the
“Ruler of Travancore”.
 [Marthanda Varma is the younger brother of Balarama Varma, the last Ruler of
Travancore who died in 1991.]
 The court examined this claim within the meaning of that term as per the
Travancore-Cochin Hindu Religious Institutions Act, 1950.
 This claim also includes the ownership, control and management of the temple,
Thiruvananthapuram.
 The court said that the shebait rights survive with the family members even
after the death of the last ruler.
 [Shebait rights - Right to manage the financial affairs of the deity.]
 This SC decision has reversed the 2011 Kerala High Court decision.

Supreme Court on Criminalisation in Politics

Why in News?

A Supreme Court judgment on criminalisation in politics will be implemented in the

Bihar elections in October 2020.

What is the Court decision?

 The Court has asked the political party and its leadership to publicly own up to
criminalisation of politics.
 It has asked the political parties to state the reasons for such selection.
 It has also asked why other individuals without criminal antecedents could not
be selected as candidates.
  If a political party fails to comply, it would be in contempt of the Supreme
Court’s orders/directions.
 It is also not clear what penalty would be imposed if the recent orders are not
followed.

What do some earlier orders state?

 Each candidate shall submit a sworn affidavit giving financial details and
criminal cases.
 Each candidate shall inform the political party in writing of criminal cases
against him or her.
 The party shall put up on its website and on social media as well as publish in
newspapers the names and details of such candidates.

Supreme Court: “States can make sub categories in

reserved categories”
Why in News?

a five-judge constitutional bench of Supreme Court ruled that the states can sub
classify list of Scheduled Caste, Socially and Educationally Backward Classes and
Scheduled Tribes to provide preferential treatment to those that are deprived
within.

Previous Judgements

The similar previous judgement that were pronounced in the Indian Judiciary
System are as follows

 The Supreme Court in Mandal case pronounced that there were no

constitutional bars in classifying SEBCs as backward or most backward,
SEBC is Socially and Educationally Backward classes
 In 2006, the Punjab High court had stuck down the circular issued by the
Punjab State government. The circular provided out of the seats reserved for
the SCs (Scheduled Castes), 50% are to be offered to Balmikis and Mazhabi
Sikhs.
What is Open Court System?
Why in News?

The Supreme Court has invoked its extraordinary Constitutional powers under
Article 142 to step away from the convention of open court hearings. It deemed all
restrictions imposed on people from entering, attending or taking part in court
hearings as lawful in the wake of the COVID-19 pandemic.

What are Open Courts?

 The Open court principle requires that court proceedings presumptively be

open and accessible to the public and to the media.
 Open courts are normal court where proceedings of the court are conducted
where every person is allowed to watch the proceedings of the court.
 There are instances where it is not practical to accommodate persons other
than parties to the proceedings. Therefore, such proceedings are held in
camera.
 This means that the proceedings are held in a closed room where the public
will not have access to watch the proceedings.
 In criminal cases like rape, it is necessary to protect the identity and modesty
of the victim.

What is “Collective Conscience” invoked by Indian

Courts in Death Penalty cases?
What is collective conscience?

Collective consciousness (sometimes collective conscience or conscious) is a

fundamental sociological concept that refers to the set of shared beliefs, ideas,
attitudes, and knowledge that are common to a social group or society.

Evolution of collective conscience:

‘Collective conscience of society’ as a ground to justify death penalty was first

used by the Supreme Court in the 1983 judgment of Machhi Singh v. State of
Punjab. In that case, the court held that when “collective conscience of society is
shocked, it will expect the holders of the judicial power centre to inflict death
penalty”.
It was, however, most famously used by the top court in its 2005 judgment in the
Parliament attack case in which it awarded capital punishment to convict,
Afzal Guru.

Collective conscience found its most recent endorsement in the 2017 judgment of
the Supreme Court in the December 2012 Delhi gang rape case of Mukesh v.
State of NCT of Delhi.

How should the Courts decide on capital punishment impositions?

In the case of Bachan Singh, the Supreme Court formulated a sentencing

framework to be followed for imposing death penalty.

 It required the weighing of aggravating and mitigating circumstances

relating to both the circumstances of the offence and the offender, to decide
whether a person should be sentenced to death or given life imprisonment.
 According to the Bachan Singh judgment, for a case to be eligible for the
death sentence, the aggravating circumstances must outweigh the mitigating
circumstances.

Supreme Court: Access to Internet-a fundamental

right
Why in News?

the Supreme Court of India said that Right of access to internet is a fundamental
right. The Court had asked the administration of Jammu and Kashmir to review the
curbs on internet in a week.

Highlights

A three-member bench of the apex court heard on a batch of pleas against

complete blockage of internet in Kashmir. Kashmir was shut out of internet for
five months now, since abrogation of Article 370.

The bench pronounced that freedom of speech and expression and freedom to
practice any business or trade over internet is constitutionally protected under
Article 19 (1).
The judgement also read that Section 144 CrPC shall not be used to suppress
freedom of speech and expression.

Supreme Court removed a state minister over

Disqualification petition
Why in News?

for the first time in its history, the Supreme Court removed the Manipur Minister
Thounaojam Shyamkumar Singh from the state cabinet. The apex court has also
been restrained him from entering the Legislative assembly.

What is the issue?

Mr Shyamkumar won the 2017 assembly elections on Congress Ticket and

switched over to BJP to become the minister of Town Planning, forest and
Environment. Disqualification petitions were filed against him to the speaker by
the other MLAs. The Disqualification petitions against the minister was pending
before the speaker of the Manipur Assembly since 2017. However, no action has
still been taken. When the issue was appealed to SC, the apex court has invoked
Article 142 and has removed the minister from the cabinet.

The SC also said that the speaker is to act as a tribunal in cases of disqualification
petition under the tenth schedule.

Supreme Court directs states to set up Gram

Nyayalayas
Why in News?

the Supreme Court of India directed the states to establish “Gram Nyayalayas”
within four weeks’ time span. The apex court has directed the corresponding state
high courts to expedite the process of consultation with the state governments.

Highlights

The Gram Nyayalayas act, 2008 was passed to provide establishment of Gram
Nyayalayas at the grass root level. The main objective of the judicial body is to
provide inexpensive justice in rural areas.
The current scenario of the states with respect to the Gram Nyayalayas were
submitted by the SC Advocate Prashant Bhushan.

Doctrine of Essentiality
What is the Supreme Court’s Doctrine of Essentiality?

 The doctrine of “essentiality” was invented by a seven-judge Bench of the

Supreme Court in the ‘Shirur Mutt’ case in 1954.
 It is a contentious doctrine evolved by the court to protect only such
religious practices which were essential and integral to the religion.
 The court held that the term “religion” will cover all rituals and practices
“integral” to a religion, and took upon itself the responsibility of determining
the essential and non-essential practices of a religion.
 Referring to the Ayodhya case, the Constitution Bench had ruled in 1994
that A mosque is not an essential part of the practice of the religion of Islam
and namaz (prayer) by Muslims can be offered anywhere, even in open.

How has the doctrine been used in subsequent years?

 The ‘essentiality doctrine’ of the Supreme Court has been criticised by

several constitutional experts.
 Scholars of constitutional law have argued that the essentiality/integrality
doctrine has tended to lead the court into an area that is beyond its
competence, and given judges the power to decide purely religious
questions.
 As a result, over the years, courts have been inconsistent on this question —
in some cases they have relied on religious texts to determine essentiality.
 In others it relied on the empirical behaviour of followers, and in yet others,
based on whether the practice existed at the time the religion originated.

Issues over the doctrine

 In the beginning, the court engaged with the question of whether

untouchability, manifested in restrictions on entry into temples, was an
“essential part of the Hindu religion”.
 After examining selected Hindu texts, it came to the conclusion that
untouchability was not an essential Hindu practice.
  The idea of providing constitutional protection only to those elements of
religion which the court considers “essential” is problematic as it assumes
that one element or practice of religion is independent of other elements or
practices.
 So, while the essentiality test privileges certain practices over others, it is, in
fact, all practices taken together that constitute a religion.

How does essentiality square up against religious freedom?

 Freedom of religion was meant to guarantee freedom to practice one’s

beliefs based on the concept of “inward association” of man with God.
 The apex court in ‘Ratilal Panachand Gandhi vs The State of Bombay and
Ors’ (March 18, 1954) acknowledged that “every person has a fundamental
right to entertain such religious beliefs as may be approved by his judgment
or conscience”.
 The framers of the Constitution wanted to give this autonomy to each
individual. Scholars have argued that the essentiality test impinges on this
autonomy.
 The apex court has itself emphasised autonomy and choice in its Privacy
(2017), 377 (2018), and Adultery (2018) judgments.

Cabinet approves increasing strength of Supreme

Court judges from 31 to 34
Why in News?

 Against the backdrop of rising cases in the Supreme Court, the Union
Cabinet has approved increasing the number of judges in the top court from
the present 31 to 34, including the Chief Justice of India.

Judges in Supreme Court

 At present, the Supreme Court is working with its full sanctioned strength of
31.
 The Supreme Court (Number of Judges) Act, 1956 was last amended in
2009 to increase the judges’ strength from 25 to 30 (excluding the CJI).
 The decision of the Cabinet came days after Chief Justice of India Ranjan
Gogoi wrote to PM Modi to increase the number of judges in the top court.
Why need more Judges?

 Due to paucity of judges, the required number of Constitution Benches to

decide important cases involving questions of law was not being formed.
 This rise also aims to expedite disposal of cases to keep pace with the rate of
institution.

Human Rights Courts in India

Why in News?

 The Supreme Court has sought a response from the Central government, the
States and the UTs on the prolonged delay for over a quarter of a century to
establish exclusive human rights courts in each district and appointing
special public prosecutors in them.

HR Courts

 The Human Rights Act had called for the establishment of special courts in
each district to conduct speedy trial of offences arising out of violation and
abuse of human rights.
 Section 30 of the Protection of Human Rights Act, 1993 envisages that a
State government, with the concurrence of the CJ of High Court should
specify for each district a court of session as a court of human rights for the
speedy trial of violation of rights.
 Section 31 of the Act provides the State government to specify and appoint a
special public prosecutor in that court.
 Sessions Court of the district concerned is considered as the Human Rights
Court.
 Under the Criminal Procedure Code, 1973 a Sessions Judge cannot take
cognizance of the offence. He can only try the cases committed to him by
the magistrate under Section 193 of the Cr.P.C.

Why need HR courts?

 To uphold and protect the basic and fundamental rights of an individual it is

an indispensable obligation upon the State to provide affordable, effective
and speedy trial of offences related to violation of human rights which can
only be achieved by setting up special courts in each district as provided
under the Act.
Right to travel abroad is a basic human right: SC
Why in News?

 The right to travel abroad is a genuine and basic human right like marriage
and family, the Supreme Court has observed in a recent order.

Right to travel abroad

 The court was hearing an appeal filed by an IPS officer who was refused
permission to take a private trip abroad to visit relatives as he had a
departmental enquiry pending against him.
 The court ruled that the right to travel abroad is an important basic human
right for it nourishes independent and self-determining creative character of
the individual.
 The right also extends to private life; marriage, family and friendship are
humanities which can be rarely affected through refusal of freedom to go
abroad and clearly show that this freedom is a genuine human right.

Referring the 1958 Kent vs Dulles Judgment

 Setting aside the order, the Supreme Court referred to its Maneka Gandhi
judgment upholding the right to travel and the landmark U.S. Supreme Court
case of 1958 Kent vs Dulles.
 The Bench quoted the majority opinion of Justice William O. Douglas in the
latter case which said freedom to go abroad has much social value and
represents the basic human right of great significance.
 The court said that this basic human right also extends to private life;
marriage, family and friendship.
 These are part of human nature which can be rarely affected through a
refusal of freedom to go abroad.

United Nations not a State under Article 12: Delhi HC

 The Delhi High Court has ruled that the United Nations is not a State under
Article 12 of the Constitution of India and is not amenable to its jurisdiction
under Article 226 of the Constitution.
Why such move?

 An Indian diplomat convicted by a US Federal Court and sentenced to

imprisonment and two years of mandatory probation, was released and
deported to India in May 2014.
 In his petition, he claimed that due process was not followed in his case.
 He had in November 2018, written a letter to the MEA seeking a grant of
permission to initiate legal action against the UN under section 86 of Civil
Procedure Code, 1908.
 The provision provides that a foreign State may be sued in any Court with
the consent of the Central government.
 The Ministry replied that the consent of the Government of India is not
required to initiate a legal suit against UN as it is not a foreign state and is
only an Internal Organization.

Reintroduction of African Cheetahs in Indian forests

Why in News?

The Supreme Court lifted its seven-year stay on a proposal to introduce African
cheetahs from Namibia into the Indian habitat on an experimental basis. The plan
was to revive the Indian cheetah population.

What did court say?

 The Supreme Court made it clear that a proper survey should be done to
identify the best possible habitat for the cheetahs.
 Every effort should be taken to ensure that they adapt to the Indian
conditions.
 The committee would help, advice and monitor the NTCA on these issues.
The action of the introduction of the animal would be left to the NTCA’s
discretion.

Right to carry on business

Why in News?
The Supreme Court has increased the time limit for the corporate resolution to
extend beyond the mandated 330 days. The judgment is significant for India’s
fledgling corporate resolution process under the Insolvency and Bankruptcy Code.

How is Article 19 involved?

 Justice Nariman said it would be arbitrary to let litigants suffer liquidation

unnecessarily.
 The court held the mandatory nature of the 330-day mark as a violation of
Article 14 (right to equal treatment) of the Constitution and an excessive and
unreasonable restriction on the litigant’s right to carry on business under
Article 19(1)(g) of the Constitution.

Time limits

 As of now, the time limit for resolution process is mandatorily 330 days in
all cases.
 If debts are not resolved and the bankrupt firm cannot be brought back to its
feet within this time-frame, the only option left is liquidation of its assets to
pay creditors.
 The court said that the provision saying the 330-day mark should be
followed in the ‘ordinary course’.
 Extension of time should be granted by the NCLT if parties are able to prove
there is very little time left in the resolution process and the delay has been
caused by ‘tardy’ legal proceedings.

Government-funded NGOs come under RTI ambit:

SC
Why in News?

 Non-governmental organisations (NGOs) “substantially” financed by the

government fall within the ambit of the Right to Information Act, the
Supreme Court held in a judgment.

About the judgment

  NGOs which receive considerable finances from the government or are
essentially dependent on the government fall under the category of “public
authority” defined in Section 2(h) of the RTI Act of 2005.
 This means that they have to disclose vital information, ranging from
finances to hierarchy to decisions to functioning, to citizens who apply under
RTI.
 An NGO, the court said, may also include societies which are neither owned
or controlled by the government, but if they are significantly funded by the
government, directly or indirectly, they come under the RTI Act.

Right to Self-Defence
Why in News?

 The right to self-defence extends not only to one’s own body but to protect
the person and property of another; the Supreme Court has interpreted the
provisions of the Indian Penal Code (IPC).
 The court acquitted a forest ranger, who was jailed for shooting an alleged
sandalwood smuggler in 1988.

Key points of SC ruling

 The court observed that the right of private defence extends not only to “the
defence of one’s own body against any offence affecting the human body
but also to defend the body of any other person.
 The right also embraces the protection of property, whether one’s own or
another person’s, against certain specified offences, namely, theft, robbery,
mischief and criminal trespass.
 When death is caused, the person exercising the right of self-defence must
be under reasonable apprehension of death, or grievous hurt, to himself or to
those whom he is protecting, the court explained.

SC directs Centre to declare area around national

parks as Eco-sensitive
Why in News?
 1. The Supreme Court has directed the Union Environment Ministry to declare 10 km area
around 21 national parks and wildlife sanctuaries across the country as ‘eco-sensitive
zones’.
2. A Bench led by Justice Madan B. Lokur took the initiative after its amicus curiae
informed the court that the State governments have taken no effort to protect the area
around these sanctuaries and parks.
3. The court recorded that the issue has been pending for the past 12 years.

“Read further abut Eco-sensitive Zones”

India gets first witness protection scheme

Background

 The issue came up when the Supreme Court was hearing a PIL plea seeking protection
for witnesses in rape cases, involving a self-proclaimed godman as key accused in
Madhya Pradesh.

Supreme Court asks for implementation

1. The Supreme Court has brought in place a witness protection regime in the country
noting that one of the main reasons for witnesses turning hostile is that they are not given
security by the State.
2. A Bench of Justices A.K. Sikri and S. Abdul Nazeer said Witness Protection Scheme,
2018 will come into effect immediately across all States.
3. The court said the scheme, which aimed to enable a witness to depose fearlessly and
truthfully, would be the law of the land till Parliament enacted suitable legislation.

SC declares instant triple talaq unconstitutional

Why in News?

In a majority 3:2 judgment, a five-judge Bench of the Supreme Court on Tuesday set aside
talaq-e-biddat or instant and irrevocable talaq as a "manifestly arbitrary" practice, which is not
protected by Article 25 (freedom of religion) of the Constitution.

Court said triple talaq in all its three forms — talaq-e-biddat, talaq ahsan and talaq hasan —
was "recognised and enforced" under Section 2 of the Shariat Act of 1937.

It explained that since the Shariat Act had recognised triple talaq, it was no longer a personal law
to remain free of the fetters of the fundamental rights rigour but a statutory law which comes
under the ambit of Article 13(1) of the Constitution.
Article 13 defines 'law' and says that all laws, framed before or after the Constitution, shall not
be violative of the fundamental rights.