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TABLE OF CONTENTS

TABLE OF CONTENTS........................................................................................................................... 1
#Structure of Judiciary: Integrated vs Separated,Indian structure:....................................................... 2
#Structure of Indian Judiciary:................................................................................................................. 2
#Organisation of Judiciary:........................................................................................................................ 3
#Judicial appointments— issues, challenges, way forward:....................................................................4
#Challenges of representation in judiciary :.............................................................................................6
Women in Judiciary:...........................................................................................................................7
SC/ST ,OBC and Muslims in Judiciary:............................................................................................. 8
#AIJS — need, issues and way ahead — case laws :...........................................................................10
#Judicial pendency — data, issues and reforms needed:..................................................................... 11
#Judiciary and technology:.................................................................................................................... 14
What is e-Courts Integrated Mission Mode Project?....................................................................... 15
#Judicial Accountability- Issues and way -forward:............................................................................... 17
#Functions of Judiciary:........................................................................................................................... 20
#Powers of Supreme Court:.................................................................................................................. 21
#Issues of judicial review, judicial activism, judicial overreach:............................................................. 25
Judicial Review:............................................................................................................................... 25
Judicial Activism,Judicial Overreach and Judicial Restraint:........................................................... 27
#Article 142, need, challenges, way ahead — with relevant case laws:................................................30
#Independence of judiciary— constitutional provisions, issues and way forward:................................ 31
#Judiciary and women’s rights — relevant case laws:.......................................................................... 33
#Judiciary and environment — relevant case laws:...............................................................................35
#Judiciary and tribals — relevant case laws:.........................................................................................37
#Judiciary and living constitution — relevant case laws:....................................................................... 38
#PIL — origins, need, relevance, challenges, way ahead — relevant case laws:.................................40
#Contempt of court — need, challenges, way ahead:........................................................................... 41

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#Structure of Judiciary: Integrated vs Separated,Indian structure:

The judiciary (also known as the judicial system) is the system of courts that adjudicates legal
disputes/disagreements and interprets, defends, and applies the law in legal cases. The
judiciary is considered the watchdog of democracy, and also the guardian of the Constitution.

There are different types of judicial structures mainly Integrated Judiciary and Separated
Judiciary:
Integrated JUDICIARY Separated/Dual Court JUDICIARY

Integrated judiciary refers to the integrated A “dual court system” is a judicial structure
structure of judiciary with the Courts at the employing two independent court systems,
top and the subordinate courts below it. one operating at the local level and the other
Ex- India,Germany at the national level.
Ex - The United States and Australia have
the world's longest-running dual court
systems

Constitution ensures integrated judiciary by There is SC which have jurisdiction over

placing SC at the top, while High Courts, matters that are specifically designated in
subordinate courts and district courts work the country's constitution or federal laws
below it. then there are State Courts having
jurisdiction over matters that are not
explicitly under federal jurisdiction that
fall within the realm of state or provincial
laws.

It is a unitary feature of the Constitution. Federal feature of Constitution

#Structure of Indian Judiciary:

The Judiciary in India is Independent and single

integrated judicial system. It is a pyramid-like
structure with the Supreme Court of India right at
the top. After which, the High Courts follow and
then, the District and in the end, are the subordinate
courts.
Aside from the aforesaid framework, the legal
system is divided into two branches:
●​ Criminal law is concerned with any citizen
or corporation committing a crime.
●​ Civil law deals with disputes about a
citizen's fundamental rights being violated

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#Organisation of Judiciary:
The judiciary in India is organized in a hierarchical manner, consisting of several levels of courts
that handle various types of cases. The Indian judiciary is independent and separate from the
executive and legislative branches of government. The structure of the Indian judiciary is as
follows:
●​ Supreme Court of India: The Supreme Court is the highest judicial authority in the
country and serves as the final court of appeal. It has original jurisdiction in certain cases
and primarily hears appeals from lower courts. The Supreme Court also plays a crucial
role in interpreting the Constitution and settling disputes Articles 124 to 147 of
constitution addresses SC power and Jurisdiction.
●​ High Courts: Each state in India has its own High Court, which is the highest court within
the state. High Courts have jurisdiction over both civil and criminal matters within their
respective states. They hear appeals from lower courts and have the power to issue writs
for the enforcement of fundamental rights. Articles 214 to 231 of constitution
addresses SC power and Jurisdiction.
●​ Subordinate Courts: Below the High Courts, there are various levels of subordinate
courts. These include District Courts, Sessions Courts, and other specialized courts.
District Courts are the primary trial courts for civil and criminal cases at the district level.
Sessions Courts handle more serious criminal cases. Articles 233 to 237 of constitution
addresses SC power and Jurisdiction.
●​ Tribunals: In addition to the regular court system, India also has specialized tribunals
that handle specific types of cases, such as tax disputes, administrative matters, and
environmental issues. Tribunals were not part of the original constitution, it was
incorporated in the Indian Constitution by 42nd Amendment Act, 1976. Article
323-A deals with Administrative Tribunals. Article 323-B deals with tribunals for
other matters.
●​ Village and Panchayat Courts: At the grassroots level, village and panchayat (local
self-government) courts exist in rural areas. These handle minor disputes and local
matters. Their jurisdiction is limited to specific types of cases and local issues.

The Indian judiciary operates on the principle of separation of powers and is responsible for
upholding the rule of law and protecting citizens' rights. The hierarchy of courts allows for
different levels of appeal and ensures that justice is accessible to all citizens. The system is
designed to provide checks and balances and ensure that the judicial process is fair and
impartial.

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#Judicial appointments— issues, challenges, way forward:

Status:
1.​ Article 124(2) of constitution (and Ar. 217 for HC) mandates that Judges of SC be
appointed by the President after consultation with such Judges of the Supreme Court and
of the High Courts in the States, as the President may deem necessary.
2.​ SC judgements in 80s and 90s led to present Collegium system. (Second, Third judges
case)
3.​ Advice tendered is binding on the government.

Positives of Collegium:
●​ Shields Judicial appointments from Executive -> Independence of judiciary
➢​ All members are present SC judges
●​ Separation of power
➢​ Executive is the largest litigant
●​ Safeguarding the constitutional values
●​ Depoliticised mode of appointment
➢​ Political loyalty is not required (compared with USA)
●​ In comparison to the CJI, the executive branch is not knowledgeable about or not an
expert in the needs of the judge → right person occupies the seat of Supreme Court Judge.

Negatives of Collegium:
●​ Extra constitutional in nature
➢​ Goes beyond constitutional mandate -> President shall appoint in consultation
●​ Critics argue → rise of “uncle judges” phenomenon
➢​ kith and kin of sitting Judges are appointed to the higher judiciary leading to
nepotism.
➢​ created an imperium in imperio (empire within an empire) within the Supreme Court.
●​ Question of transparency and accountability
➢​ No written rules, regulations
●​ Damaged the federal character of judiciary
➢​ Since the appointments to the apex court are now in the hands of its five senior-most
judges, the incentive for dissent in the high courts has been lost.
➢​ The collegium system has created a hierarchy amongst judges, with its members
wielding much greater influence than other judges.
●​ Overburdening of Judiciary → large number of cases outstanding and has a limited
amount of time.

Reforms in Collegium:
The NJAC case (2015) Bench admitted that all was not well with the collegium system of
“judges appointing judges”, and invited the government to work on improving the system of
judicial appointments.
●​ The names of candidates can be made public initially or at least an independent
intelligence gathering unit should be there for collegium.

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➢​ Ex: recent case of a Madras judge appointment, where individual allegedly
engaged in hate speech was recommended (these facts came into light only
later on).
●​ Consider the case of South Africa, where proceedings of the judicial appointments
commission have been subjected to judicial review, and where the courts have directed
the commission to make their deliberations public.
➢​ This can only happen if there is a degree of separation between the judicial
appointments commission and the court.
●​ Increase transparency in appointment
➢​ Eligibility criteria, formal interviews, formal vacancies and invitation
●​ An arrangement for better demographic representation and accountability
●​ Institutionalisation and formalisation of process
➢​ Secretarial assistance — maintain records
➢​ Mechanism for complaints and adverse reports
●​ The Memorandum of Procedure (MoP) — a document jointly framed by the
government and Judiciary for judicial appointments in 1999, and reconsidered in 2015,
needs to finalised.

Some other recommendations:

➢​ The collegium shall have exclusive authority to nominate persons for consideration for
appointment as judges of the High Courts and the Supreme Court.
➢​ A Judicial Appointments Commission shall review the candidates nominated by
the collegium and recommend persons considered suitable for appointment to the
President. The Commission shall be broad-based (like the 15-member body in the
United Kingdom) and shall have judges, jurists, legal scholars and the Law
Minister.
➢​ A person nominated by the collegium and recommended by the Commission, and no
other person, shall be appointed as a judge.

Reforms taken in Collegium:

●​ Online filing of discussions of collegium.

99th Amendment:
●​ (NJAC) Act, 2014, providing for the creation of an independent commission to appoint
judges to the Supreme Court and high courts to replace the collegium system
●​ Constitution (99th Amendment) Act, introduced three key Articles- 124 A, B, and C and
amended clause 2 of Article 124.
➢​ Article 124A created the National Judicial Appointments Commission (NJAC).
➢​ Article 124B vested in this NJAC the power to make appointments to both the
Supreme Court and the various high courts, and
➢​ Article 124C gave Parliament the power to make laws regulating the NJAC’s
functioning
●​ The National Judicial Appointments Commission (NJAC) was a constitutional body
proposed to replace the long-standing Collegium system of appointing judges.

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NJAC Structure → 1+2+1+2
➢​ The Chief Justice of India as the ex officio Chairperson
➢​ Two senior-most Supreme Court Judges as ex officio members
➢​ The Union Minister of Law and Justice as ex officio member
➢​ Two eminent persons from civil society (to be nominated by a committee consisting of the
Chief Justice of India, Prime Minster of India and the Leader of Opposition in the Lok
Sabha; one of the eminent persons to be nominated from SC/ST/OBC/minorities or
women)

Criticism of NJAC:
➢​ The Act empowered any two members of the NJAC to veto a recommendation if they did
not agree with it.
➢​ Two eminent people could have been from no law background
➢​ The Chief Justice of India, had no casting vote. What would happen if there was a tie
and, therefore, a deadlock.
➢​ Section 5(1) required the NJAC to recommend the senior-most judge of the Supreme
Court as the Chief Justice of India “if he is considered fit to hold the office”. Neither the
99th Amendment nor the NJAC Act had any prescribed criteria of what constituted
fitness to hold office.

NJAC Judgement:
➢​ Amendment “severely” damaged the basic structure of the Constitution, of which the
independence of the judiciary was an integral part. (4:1)
➢​ Dissenting judge wrote, “transparency” was a vital factor in “constitutional governance”
and the collegium proceedings were “absolutely opaque” and “inaccessible” to the public
and history’

Conclusion:
➢​ Judiciary and the government should work with a sense of “constitutional statesmanship”.
➢​ CJI Chandrachud : Collegium system is not perfect but best available.
➢​ The Collegium black box needs to open itself to ensure accountability and transparency in
a manner that doesn’t undermine its institutional processes.

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#Challenges of representation in judiciary :
Appointment of Judges of the Supreme Court and High Courts is made under Articles 124, 217
and 224 of the Constitution of India, which do not provide reservation for any caste or class of
persons so in the present system of appointment of Judges to the constitutional courts through
the Collegium system, the onus to provide social diversity and representation to all sections of
the society including SC/ST/OBC/Women/Minorities primarily falls on the Judiciary.

Women in Judiciary:
In the 71 years of history of the SC, there have been only few women judges — the first was
Justice Fathima Beevi, who was elevated to the bench after a long gap of 39 years from the date
of establishment of the SC.
Data:
➢​ Supreme Court of India’s “State of the Judiciary” report (2023) showed 36.3% of women
in the district judiciary.
➢​ As of January 2024, only 13.4% of judges in the High Court and 9.3% judges in the
Supreme Court are women.
➢​ Out of 1.7 million advocates in the country only 15% are women. Only 2% elected
representatives in the State Bar Councils are women.

Reasons for Low Representation of Women in Judiciary:

1.​ Opaque Recruitment Process (Collegium System): More women in the lower tiers of
Judiciary because of formal qualifications and examinations. Such arrangement is more
rational and transparent. Appointments to Higher Judiciary are undertaken through
opaque Collegium System where the eligibility and selection criteria are not know.
2.​ ‘Leaking Pipeline’ Syndrome: Metaphor for the way women disappear as they move
from lower to higher level→ the Judiciary (~35% Judges in Lower Courts to ~11% in
the SC). Family responsibilities, personal choices, long working hours and work-life
conflict, working conditions, lack of access to employment opportunities, barriers to
advancement, inadequate support from family results in women frequently dropping out
mid-career.
3.​ No Women Reservation: Many states have a reservation policy for women in the lower
judiciary, which is missing in the High Courts and Supreme Court. States such as Assam,
Andhra Pradesh, Telangana, Odisha and Rajasthan have benefited from such
reservation as they now have 40-50% women judicial officers.
4.​ Lack of Supportive Infrastructure: From toilets to maternity leave, also contribute to a
high attrition rate amongst women lawyers.A survey in 2019, by the Vidhi Centre for
Legal Policy highlighted that nearly 100 district courts have no dedicated
washrooms for women.
5.​ Uncomfortable Environment: According to a Research Paper ‘Structural and
Discretionary Bias: Appointment of Women Judges in India’ 13 Judges out of 19
interviewed acknowledged the gender bias that exists in the appointment procedure of
Judges to the Supreme Court and the High Courts.
6.​ Judicial Rules: Because of Judicial rules no one below the age of 55 years can be
appointed as a judge in the Supreme Court. Marriage and Family responsibilities in this
age group reduces the ability of women to compete for roles in the Judiciary.

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Impacts of Low representation of Women in Judiciary:
1.​ Prejudice in Judgements: Critics argue that lack of gender perspective leads to
prejudiced Judgments e.g., In August 2020, the High Court of Madhya Pradesh
granted bail to a molester on the condition that he will get a rakhi tied by the
victim.
2.​ More judicial diversity: If there is not adequate women’s representation, the justice
system will not be able to meet the needs of women and other underserved communities.
3.​ Trust Deficit: The lack of women representatives in courts give rise to questions about
the courts’ legitimacy as representatives of the societies they serve.
4.​ Demotivates More Women to Seek Justice: Higher numbers, and greater visibility, of
women judges can increase the willingness of women to seek justice and enforce their
rights through the courts.

Way forward:
1.​ Gender Sensitisation: The CJI Justice Chandrachud recently remarked that Feminist
approach should be imbibed while dealing with law. All India Bar Examination should
contain questions or sections relating to gender sensitisation.
2.​ Reforms in Collegium System.
3.​ Reservation in higher judiciary up to 50% as suggested by ex-CJI.
4.​ Higher rate of promotion of women judges from Lower courts to higher courts
5.​ Mentorship System: The Geneva Forum on Women in the Judiciary (2013) had
suggested a mentorship system where senior women judges and lawyers can help and
guide their younger peers.
6.​ Reorient education system in such a way that it teaches work-life balance such as
Child-raising and domestic responsibilities must be meaningfully shared by both men and
women.

Infrastructural amenities, gender-sensitive recruitment and transfer policies, and

adequate training and support are crucial to ensure that the judiciary lives up to its promise of
empowering women

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SC/ST ,OBC and Muslims in Judiciary:

Data:
➢​ Only 3% High Court Judges Appointed Since 2018 Belong To SC Category, 1.5% To ST &
5.3% To Minority: Parliamentary Committee Calls It ‘Diversity Deficit’
➢​ A total of 256 Judges have been appointed to the Supreme Court since the inauguration of
the court. Of these, there have been only five judges from the Scheduled Castes, one judge
from the Scheduled Tribes.
➢​ The lack of lower caste representation has been raised as a pressing issue by Parliamentary
Committee reports, the National Commission for Scheduled Castes as well as a former
President.

Reasons for Low Representation of SC/ST in Judiciary:

1.​ Historical Discrimination: Historically, SCs and STs have faced systemic discrimination,
oppression, and exclusion from various aspects of society, including education and
employment opportunities. This historical disadvantage has had a long-lasting impact on
their representation in the judiciary.
2.​ Educational Disparities: Access to quality education has been limited for many SC and
ST communities due to factors such as poverty, lack of infrastructure, and discrimination.
fewer opportunities to pursue legal education and qualify for judicial positions.
3.​ Socio-Economic Barriers: Socio-economic disparities persist, affecting the ability of SCs
and STs to access resources, coaching, and support required for preparing for judicial
examinations and interviews.
4.​ Opaque Recruitment Process (Collegium System)
5.​ No reservation in Judiciary for SC/ST and OBC

Impacts of Low representation of Women in Judiciary:

1.​ Lack of Diverse Perspectives: Different backgrounds and life experiences can contribute
to a more comprehensive understanding of the complexities of legal cases.
2.​ Perception of Bias: The underrepresentation of SCs and STs in the judiciary can
contribute to a perception of bias and unfairness within the justice system. This
perception can erode public trust in the judiciary and the legal process.
3.​ Inadequate Understanding of Socio-Economic Realities: Judges from
underrepresented communities may have a better understanding of the socio-economic
realities and challenges faced by SCs and STs.
4.​ Undermining the Principles of Social Justice: India's Constitution enshrines the
principles of social justice and equality. A lack of representation in the judiciary can
undermine these principles.
5.​ Inequality in Access to Justice: An underrepresented judiciary may result in unequal
access to justice for SCs and STs. These communities may feel marginalized or overlooked
in legal proceedings.
6.​ Limited Role Models: discouragement for aspiring individuals from these communities
to pursue legal careers. Role models are crucial for inspiring the next generation.
Way forward:
1.​ Reforms in collegium system .

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2.​ Reservation of SC/ST and OBC on the lines of education and govt jobs also suggested by
parliamentary panel of law and justice.
3.​ Support for Legal Education: Provide scholarships, financial assistance, and mentorship
programs to facilitate access to quality legal education for SC and ST students.
4.​ Sensitization and Training: Conduct regular sensitization programs for judges, legal
professionals, and members of the judiciary to raise awareness about the challenges faced
by SCs and STs.

#AIJS — need, issues and way ahead — case laws :

AIJS is a proposed cadre of judicial officers to man the judiciary at the lower levels (below High
Courts) recruited through an open competitive national level exam conducted on the lines of
Civil Services Exam. It is mooted to be an All India Service under Article 312.

History:
1.​ AIJS first proposed by the 14th Report of the Law Commission of India in 1958- it
aimed at creating a centralised cadre of District Judges.
2.​ Creation of AIJS was favoured by the Chief Justices conferences in 1961, 1963, and
1965.
3.​ The provision of AIJS was also included in Article 312 of the Constitution through the
42nd amendment in 1976.
4.​ In its report on Strategy for New India @75 which defines objectives for 2022-23,
NitiAayog suggested that an all-India judicial services examination on a ranking
basis can be considered to maintain high standards in the judiciary.

Constitutional Provisions:
42nd Constitutional Amendment, 1976:
1.​ Article 312(1) was amended- it empowered the Parliament to make laws for the creation
of one or more AIS, common to both Union & States
2.​ Article 312(3) places a restriction that such a service shall not include a post inferior to
that of a district judge
3.​ A significant change was also brought about in the Seventh Schedule- Entry 3 of List II
(State list) in its entirety was placed at Entry 11A in List III.

Need of AIJS:
1.​ The Issue of Huge vacancy of judges and delay in recruitment can be solved:
Currently there are about 5400 vacant posts in lower judiciary across the country and a
pendency of 2.78crore cases in lower judiciary.
2.​ Ideal solution for equal representation of marginalised and deprived sections of the
society: Most States already have a reservation policy in place, TN provides a roster-based
policy of 69%, of which 30% are for women, States like UP can immensely benefit from
the AIJS - there is merely 20% reservation for women.
3.​ Best legal talent across the country would be selected on the basis of merit.
4.​ Corruption, nepotism etc. would be strongly dealt with.
5.​ Better qualified judges in the lower judiciary would translate into more experienced
judges in the higher judiciary.

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6.​ Corruption, nepotism etc. would be strongly dealt with.

Issues with AIJS:

1.​ Dilutes separation of power: If the control over state judiciary is transferred to Union
government, through AIJS, by removing control of High Court as provided under Article
235 currently, independence of judiciary would be undermined.
2.​ It affects the basic principle of federalism and is against the basic structure
doctrine.
3.​ Legal Education in India is mismanaged:Except for a few well reputed law schools
across the country, legal education is not prioritised.
4.​ Discriminatory for weaker sections: A “national exam” risks shutting out those from
less privileged backgrounds from being able to enter the judicial services.
5.​ Local language problem: Courts up to District and Sessions Judge transact their
business in State language and AIJS officers would find difficult to acclimatize themselves
with local language.
6.​ Affects only tip of the iceberg: AIJS addresses neither the problem of disproportionately
low pay nor unavailability of adequate judicial infrastructure (including courts or training
of officers) in states nor the lack of career advancement.

Case laws:
1.​ In 1992, SC in All India Judges’ Association v. Union of India directed the Centre to
set up an AIJS.
2.​ In 2017, SC took suo motu cognizance of the issue of appointment of district
judges, and mooted a “Central Selection Mechanism”.

Way forward:
1.​ AIJS proposes to solve the problem of judicial vacancies, it would be crucial to first
conduct a detailed investigation into the reasons for judicial vacancies in poorly
performing states so as to structure AIJS in a manner to solve the inherent issues.
2.​ Sufficient training to handle the job, similar to the training imparted to candidates of IAS,
IPS, IFS and other civil services, in order to resolve state-specific issues.
3.​ A meritocratic judiciary is the need of the hour which is possible with a competitive
recruitment process. Nevertheless, the efficacy of the AIJS would depend on its potential
to efficiently address existing issues and impartiality in its implementation.

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#Judicial pendency — data, issues and reforms needed:

Data:
1.​ Approx. 3.5 crore cases pending in the judicial system (approx. 88% of pending
cases in lower judiciary, i.e. district and subordinate courts).
2.​ More than 64% of all cases are pending for more than 1 year.
3.​ Acc to central govt India Has 21 Judges Per Million Population but acc to Justice
Oka There is a requirement of 50 judges for every 1 million population in the
country.

Reasons for Judicial Pendency:

1.​ Unfilled vacancies of both judicial and non judicial officers: 40% vacancies in High
court judges. Similar situation in subordinate judiciary.
2.​ Inadequate physical infrastructure: The National Court Management System (NCMS),
constituted by the Supreme Court, found a direct connection between physical
infrastructure, personnel strength, and digital infrastructure, and pendency.
3.​ Inadequate technological infrastructure: Old technologies used in administration
increases time of litigation. Process to adopt new digital technologies is slow.
4.​ Time taken for case disposal is high: Reasons are:
➢​ Repeated adjournments despite court guidelines provide not more than 3 times
➢​ Frivolous litigation.
➢​ Higher judiciary is getting flooded with bail matters because of the reluctance of the
district courts to grant bail.
➢​ Time wasted due to inefficiencies in investigation, hearings and delivery of judgments. Ex:
Reserving delivery of judgments for months despite completion of hearings.
5.​ Increased litigation from the Government (e.g. tax and revenue cases): Acc to
Ministry of Justice report → As on January 3,20223, LIMBS project (Legal Information
Management Briefing System) shows that there are around 6 lac+ cases involving the
government pending before the court system.
6.​ ADR(Alternative DIspute Resolution) methods are also not effective → There also
less number of judges and infrastructure is weak.
7.​ Shifting role of the Supreme Court from adjudicating cases of constitutional
significance into a regular court of appeals. Article 136(Special leave petition)
which was to be used in case of grave injustice but instead, it became a contributing factor
towards an increase in pendency
8.​ Lower working days in a year - Supreme Court's works on an average of 188 days a
year, while apex court rules specify a minimum of 225 days of work but due to frequent
strikes done by Bar Association, the working of court gets affected
9.​ Early retirement age of Judges - In comparison to other countries, India's retirement
age of Judges is the lowest.

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Consequences of Pendency:
1.​ Denial of timely justice amounts to the denial of justice - Timely disposal of cases is
essential to maintain rule of law and provide access to justice.
2.​ Denies the poor man and under-trial prisoners their due justice.
3.​ Economic reforms - only on paper without speedier justice system.
4.​ Foreign investors hesitate to `invest in India due to the delayed delivery of justice,
which affects the success of programs like ‘Make in India’.
5.​ Judiciary becomes overburdened; loses efficacy and efficiency.
6.​ Erodes social infrastructure.
7.​ Overcrowding of prisons - in some cases beyond 150 % of the capacity, results in
violation of human rights.
8.​ Financial drain of the coffers of the State; judicial delays cost India an estimated 1.5% of
its GDP annually.
9.​ High time, energy and money costs for litigant/common man, resulting in loss of the
common man’s faith in the justice system

Recommendations:
1.​ Decentralise working of the Supreme Court by introducing Regional Benches (this
recommendation was also put forth by the Law Commission.)
2.​ Increase functioning and efficiency of ADR; effective utilisation of mechanisms such as
Lok Adalats and Gram Nyayalayas.
3.​ Establishment of Tribunals, Fast Track Courts and Special Courts to dispense
important cases at the earliest.
4.​ Introduction of the All India Judicial Services (AIJS) for appointment of members to
the lower judiciary
5.​ Malimath Committee Report:
➤​ Increase in number of courts and judges.
➤​ Reduction in period of vacations for the Courts by 21 days.
➤​ ‘Arrears Eradication Scheme’ – pending cases prioritized and settled through Lok
Adalats; no adjournment allowed.
6.​ Parliamentary Standing Committee on Personnel, Public Grievances, Law and
Justice stated in its 133rd report
➤​ Change Vacation System: Instead of all judges being on vacation together, they
suggested judges take time off at different times. This way, courts can stay open more
often.
➤​ Judges’ Retirement Age: The retirement age of judges needed to be increased since
longevity has increased due to advancements in medical sciences.
7.​ Use of Information technology (IT) solutions:
➤​ Digitization of court registry.
➤​ E-filing of suits across courts.
➤​ Video conferencing hearings.
➤​ Digitization of court database, use of ERP tools for database management.
➤​ Real time updates of case status, cause list etc.

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Economic survey 18-19 on pendency of cases:

➢​ “Delays in contract enforcement and disposal resolution are arguably now the single biggest
hurdle to the Ease of Doing Business in India”
➢​ The document suggests that a Case Clearance Rate of 100 per cent (i.e. zero accumulation)
can be achieved with the addition of merely 2,279 judges in the lower courts, 93 in High
Courts and only one in the Supreme Court, which is already within sanctioned strength and
only needs filling of vacancy.
➢​ The Survey points-out that States of Uttar Pradesh, Bihar, Odisha and West Bengal need
special attention, given their lower clearance rates.
➢​ For enhancing productivity in the judiciary, the Survey suggests:
➤​ Increase number of working days
➤​ Establishment of Indian Courts and Tribunal Services to focus on the administrative
aspects of the legal system
➤​ Deployment of Technology to improve efficiency of the courts, e.g. eCourts Mission
Mode Project and the National Judicial Data Grid being rolled-out in phases by the
Ministry of Law and Justice.

Steps taken:
1.​ Centre has introduced a mobile application ‘JustIS’ for efficient court management
by judges. (App developed by the National Informatics Centre.)
2.​ Introduction of “fast-track” courts, jail-adalats (“prison courts”), and plea-bargaining.
Campaign Mode to reduce pendency through Pendency Reduction Campaign in second
half of the year 2011.
3.​ Resolution aimed at prioritization of disposal of cases through Mission Mode was passed
in April 2016.
4.​ The Supreme Court, in the case of Hussain & Anr. v. Union of India (2017), issued
timelines for completion of criminal trials and appeals and directed High Courts to plan
and monitor the speed of trials.
5.​ The Supreme Court has, in recent times, given strict guidelines to not allow pleas for
unnecessary or groundless adjournments, used as dilatory tactics.
6.​ Technology Upgrade → Discussed in next section.

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#Judiciary and technology:
The use of technology in the Indian judiciary can have several benefits, including improving
efficiency, transparency, accessibility, and accountability.
Here are some key reasons why technology is essential in the Indian judiciary:
1.​ Case Management: Technology can help streamline case management processes by
digitizing case records, facilitating online filing of cases, and automating scheduling. This
can lead to faster resolution of cases and reduced backlog.
2.​ Digital Records: Transitioning from paper-based records to digital records can enhance
the accessibility and security of case-related documents. For example, the e-Courts
project aims to computerize the working of courts in the country and make the
judicial system more efficient.
3.​ E-Filing: E-filing systems allow lawyers and litigants to submit documents online,
reducing the need for physical presence in court and saving time and resources. It also
reduces the chances of documents being misplaced. For example, the e-filing portal of
the Supreme Court of India enables lawyers and litigants to file cases and access
case records online.
4.​ Video Conferencing: Technology enables remote hearings and virtual courtrooms, which
can be especially useful in a vast and geographically diverse country like India. This can
improve access to justice for people in remote areas.
5.​ Transparency: Digital platforms can increase transparency by providing the public with
easy access to court decisions, case status, and legal documents. This helps in promoting
trust in the judicial system.

E-Court:
The Government of India has launched the e-Courts Integrated Mission Mode Project in the
country for computerization of District and subordinate courts with the objective of improving
access to justice using technology.
CJI DY Chandrachud: E-courts will bridge citizen-system gap, use tech as enabler.

What is e-Courts Integrated Mission Mode Project?

E-Courts project is being implemented in association with e-Committee Supreme Court
of India and the Department of Justice.
●​ Phases:
➢​ Phase I: It was implemented during 2011-2015.
➢​ Phase II: It was started in 2015 under which various District & Subordinate courts
have been computerised.
What are the Initiatives Taken under the Project:
●​ Improvisation of Network: Under the Wide Area Network (WAN) Project, connectivity has
been provided to 99.4% of total Court Complexes across India with an improved bandwidth
speed.
●​ NJDG Database: National Judicial Data Grid (NJDG) is a database of orders, judgments, and
cases, created as an online platform under the eCourts Project..
●​ Virtual Courts: 21 Virtual Courts in 17 States/UTs have been operationalized to handle traffic
challan cases- 2.40 Cr cases handled.

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●​ Video-Conferencing (VC): Video-conferencing (VC) facilities
➢​ The Supreme Court emerged as a global leader by conducting lakhs of hearings.
●​ E-filing: As of 2022, a total of 19 High Courts have adopted.
●​ SUVAS (Supreme Court Vidhik Anuvaad Software): It is an AI system that can assist in the
translation of judgments into regional languages. This is another landmark effort to increase
access to justice.
●​ SUPACE (Supreme Court Portal for Assistance in Court Efficiency): It was recently launched
by the Supreme Court of India. Designed to first understand judicial processes that require
automation, it then assists the Court in improving efficiency and reducing pendency by
encapsulating judicial processes that have the capability of being automated through AI.
●​ Regarding Summons: National Service and Tracking of Electronic Processes (NSTEP) has
been launched.
●​ User-friendly Portal: A new “Judgement Search” portal has been started.
●​ Creating Awareness: made available in English, Hindi and 11 regional languages for the
use of lawyers.
●​ CJI on 75 years of Supreme court some main points :
a.​ SC will migrate it's digital data to cloud based infra
b.​ Digital SC will make judgement available to people for free
c.​ Opening of war room to equipped with technology to monitor real time judicial data
of country
d.​ Suswagatam app - e passes to attend court proceedings, meeting lawyers etc
What’s New about Phase III?
●​ Phase III Mentions Various New Features:
➢​ Digital and Paperless Courts aimed at bringing court proceedings under a digital
format in a court.
➢​ Use of emerging technologies like Artificial Intelligence (AI) and its subsets like
Optical Character Recognition (OCR) etc for analysis of case pendency,
forecasting future litigation, etc.

What are the Challenges with Application of Emerging Technologies in the Judicial
System?
1.​ Data Security: With the increasing amount of sensitive data being collected by the
judicial system, it is crucial to ensure that this data is kept secure. Any data breaches
could compromise the integrity of the justice system and undermine public trust.
2.​ Bias and Discrimination: Emerging technologies such as Artificial Intelligence (AI)
may inadvertently perpetuate bias and discrimination if the algorithms used are not
designed with care.
3.​ Lack of Understanding: Many legal professionals may not have the technical
expertise required to fully understand the capabilities and limitations of emerging
technologies. This could lead to misunderstandings about how these technologies
should be applied and result in ineffective or inappropriate use.
4.​ Privacy Concerns: The use of emerging technologies could potentially violate
privacy rights. For example, facial recognition technology could be used to identify

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individuals without their consent, and there is a risk that this technology could be
misused by law enforcement or other organizations.
5.​ Cost: The implementation of emerging technologies can be expensive, and the
judicial system may not have the resources to invest in these technologies.
6.​ Ethical Considerations: There are several ethical considerations that need to be
taken into account when implementing emerging technologies in the judicial system.
There is also concern with respect to the lack of the human element or ‘conscience’
required for the act of judging. For example, it is essential to ensure that these
technologies do not compromise the rights of individuals or undermine the
integrity of the justice system.

National Judicial Data Grid:

NJDG stands for National Judicial Data Grid, a digital infrastructure in India's judicial system that serves as a
centralized repository of court case information, including orders, judgments, and detailed case details
from over 18,000 courts.

It's a key component of the eCourts project and aims to improve transparency, accountability, and
data-driven decision-making in the Indian legal system.

Functions:
1.​ NJDG offers an extensive repository containing orders, judgments, and case particulars from District and
Subordinate Courts, HCs and SC.
2.​ This web portal enables open access to statistics for all visitors.
3.​ Furthermore, NJDG functions as a decision support system, assisting courts in monitoring case delays
based on various attributes, such as year wise, coram wise pending cases and pending cases in each
branch of law such as civil, criminal etc.
Challenges:
1.​ Inconsistencies in data entry, missing information, and errors can affect the reliability of the platform.
2.​ India's vast geographical and infrastructural diversity posed challenges in ensuring that all courts,
especially those in remote areas, which do not have the necessary infrastructure and connectivity to
participate effectively in the NJDG.
3.​ Ensuring the privacy and security of court records and case details has been an ongoing challenge.
Benefits:
1.​ Transparency: enhanced transparency and accountability
2.​ Streamlined Mechanism: aided HC judges, District Judges, and the HC Registry in judicial planning,
monitoring, and remote administration.
3.​ Time effectiveness
4.​ Access to justice
5.​ Reduction of Case Pendency

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#Judicial Accountability- Issues and way -forward:
By the term judicial accountability, it means that the judges are responsible for the decisions
they deliver all by themselves. It is the transparency in the decision-making process that helps
in bringing the accountability.
Ex → The alleged discovery of cash at a Delhi High Court judge's residence

Judicial Accountability vs Judicial Independence:

1.​ The Judiciary is not subjected to the same level of accountability as the Executive or
the Legislative wings of the Government.
2.​ The reason is that the principles of Judicial Independence and Accountability are
sometimes regarded as fundamentally opposed to one another.
3.​ One of the reasons for having stronger judicial accountability is to strike a balance
between judicial accountability and judicial independence because independence can to
be equated to absolutism.
4.​ Judicial accountability is necessary to bring in fair and impartial hearings by the judges
similar to judicial independence which promotes fair and transparent hearing and does
not benefit the judges as having been perceived in several cases.
5.​ They can be considered to be complementary with each other. The aim of both these
concepts is to bring about judicial courage and judicial integrity is to be enforced
together to increase the efficiency of the working of the judicial system.
6.​ Rather than competing with each other, judicial accountability and judicial
independence should be regulated together to bring in impartial justice to the
citizens of the nation.
7.​ It is only through balancing these two concepts, can stronger judicial
accountability be brought into the nation.

Current framework of Judicial Accountability in India:

1.​ The Constitution of India provides for the removal of the judges of the Supreme Court of
India and the High Courts for misbehaviour and incapacity by means of impeachment.
The provisions of impeachment have been provided in the Article 124(4) (SC Judge)
and Article 217(1)(b) (HC Judge) of the Constitution.
2.​ Judges (Inquiry) Act, 1968 was passed to regulate the investigation procedure and to
find proof showing incapacity and misbehavior on the part of the judges of the Supreme
Court and the High Courts.
3.​ Article 235 of the Constitution provides for the ‘control’ of the High Court over the
subordinate judiciary. It provides an effective mechanism to enforce accountability of
the lower judiciary.
4.​ The Supreme Court of India adopted a Charter called the Restatement of Values of
Judicial Life in 1997. It is the restatement of the pre-existing and universally accepted
norms, guidelines and conventions observed by Judges. All the High Courts of the country
have also adopted the same.
5.​ A resolution of the Supreme Court in December 1999 declared that an ‘in-house
procedure’ would be adopted to take action against judges who act against accepted
values of judicial life.Chief Justice of that Court to set up an inquiry with a 3-judge
committee → may recommend initiating proceedings for removal.

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What is the need to enhance Judicial Accountability?:

1.​ The process of appointment of judges to higher judiciary lacks transparency. There
is no visibility about what importance is given to credentials of judges
2.​ It will induce the judges to improve efficiency and deliver quality judgements
thereby ensuring justice in the society. Accountability of judges who pronounce decisions
like → e.g., a Bombay High Court Judge ruled that groping a child without
‘skin-to-skin contact with sexual intent’ does not amount to the offence under the
POCSO Act.
3.​ It will help in ensuring an impartial functioning that would augment public trust in
the institution of judiciary. For instance, a major controversy erupted when a sitting
Chief Justice of India was accused of sexual harassment.
4.​ The scope of information which the courts are willing to share under RTI is not too
wide. .
5.​ The judiciary is not under any legal obligation to prepare annual reports or table
them before Parliament or the State Legislature. There are some exceptions like -High
Courts of Madras, Himachal Pradesh and Tripura.
6.​ There exists no provision in the Indian Constitution which directs in reviewing the
Supreme Court’s decision. Except for the Supreme Court itself.
7.​ In the absence of any accountability, the pendency of cases has reached
unprecedented levels (> 4 Crore cases in lower courts).
8.​ Several shortcomings in the in-house procedure. There is no statutory basis for the
procedure.

Challenges in enhancing Judicial Accountability?:

1.​ It is very difficult to balance the Judicial Accountability vis-a-vis Judicial Independence.
2.​ No other way in which a judge can be removed except through impeachment and the
process is long and complex. Due to this, it is difficult to augment judicial accountability.
3.​ The SC and HC have the power of contempt that prevent imposition of anything on the
judiciary without their consent.
4.​ The judiciary is the final interpreter of laws, policies, rules etc they can strike any law.

SC Judgements regarding Accountability:

➢​ S.P. Gupta v. Union of India: The Supreme Court agreed that Judiciary is accountable to the
public to answer queries related to the decisions they take for the interest of the public. This
has been granted to the public by Article 19(1) (a) of the Constitution.
➢​ C. Ravichandran Iyer vs Justice A.M. Bhattacharjee: The Supreme Court held that an
in-house "peer review" procedure could be laid down for correcting deviant behaviour.
Where the allegations do not warrant removal, the in-house mechanism could impose "minor
measures".
➢​ K. Veeraswami v. Union of India: The SC held that no Judge of superior court could be
subjected to a criminal investigation without the written permission of the Chief Justice of
India. Justice Veeraswami had assets vastly disproportionate to his income. Due to this
judgment, it has been very rare that a judge has been subjected to investigation.This, therefore,

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deletes the concept of judicial accountability as well. This judgment had overturned the decision
taken by the court in S.P. Gupta v. Union of India and Others.

Steps which can be taken to enhance Judicial Accountability?

1.​ Parliament can enact a law that mandates Judiciary to publish an annual report.
2.​ The Judicial Standards and Accountability Bill was floated in 2010, but eventually
lapsed. A new Bill on setting judicial standards is necessary. As suggested by a former
Chairperson of the Law Commission, the new Bill must address the concerns with
the old Bill and should avoid giving excessive control to the Legislature or the
Executive.
3.​ A permanent disciplinary committee should be set up at the central level to deal
with complaints against judges.
4.​ The judiciary can also be brought under the scope of Lokpal to enhance
accountability as seen in countries like Sweden where judiciary comes under the
scope of the ombudsman.
5.​ Parliamentary Standing Committee on Personnel, Public Grievances, Law and
Justice stated in its 133rd report → Judges must Declare Assets.
6.​ The Bangalore Principles of Judicial Conduct 2002 presents a framework to regulate
judicial conduct.

Best Practice:
●​ The High Court of Odisha has published a one-of-a-kind annual report of its
performance in 2021. By the standards of the Indian judiciary, this is a rare exhibition of
transparency. The report outlines the performance of the High Court and the lower judiciary in
the State.
●​ The Report provides detailed view of breakup of cases (cases pending at the start of the
year, new cases, disposed cases, cases pending at the end of the year) for each District
Court.
●​ It contains a section explaining the reasons for delays and backlog at the district level.
●​ The Report also lists the initiatives undertaken by the Court, e.g., the initiatives to address
the digital divide in the judiciary. Order Communication Portal (OCP) enables digital sending of
High Court orders to subordinate courts

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#Functions of Judiciary:

#Powers of Supreme Court:

Jurisdiction of the Supreme Court refers to the extent of the power of the SC to make
legal decisions and judgements.
The constitution of India has vested a very extensive jurisdiction and vast powers in the Supreme
Court of India. It is not only a Federal Court like the American Supreme Court but also a
final court of Appeal like the British House of Lords.

Alladi Krishnaswamy Ayyar, a member of drafting Committee of the Constitution, rightly

remarked, “ The Supreme Court of India has more powers than any other Supreme Court in
any part of the World”

JURISDICTION EXPLANATION

As a federal court under Article 131, the Supreme Court decides

the disputes between different units of the Indian Federation.
Original Jurisdiction More elaborately, any dispute:
➢​ Between the Centre and one or more states
➢​ Between the Centre and any state or states on one side and one

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or more other states on the other side
➢​ Between two or more states.
In the above federal disputes, the Supreme Court has exclusive
original jurisdiction i.e the power to hear such disputes in the
first instance, not by way of appeal.
Jurisdiction of the Supreme Court does not extend to the
following:
➢​ A dispute arising out of any pre-Constitution treaty, agreement,
covenant, engagement, sanad or other similar instruments.
➢​ A dispute arising out of any treaty, agreement, etc., which
specifically provides that the said jurisdiction does not extend
to such a dispute.
➢​ Interstate water disputes.
➢​ Matters referred to the Finance Commission.
➢​ Adjustment of certain expenses and pensions between the
Centre and the states.
➢​ Ordinary dispute of Commercial nature between the Centre and
the states.
➢​ Recovery of damages by a state against the Centre

Appellate Jurisdiction Article 132 provides for the Appellate Jurisdiction of the
Supreme Court in appeals from High Courts and lower courts
in certain cases.
➢​ The Supreme Court’s appellate jurisdiction is also crucial in
interpreting and clarifying legal issues that arise in lower
courts.
➢​ The Supreme Court’s decisions in such cases provide guidance
to the lower courts, helping them to apply the law correctly and
consistently.
➢​ The appellate jurisdiction of the Supreme Court is not
limited to civil and criminal matters but also extends to
constitutional matters.
➢​ In cases where the lower courts have given decisions that violate
the Constitution of India, the Supreme Court can review those
decisions and ensure that the Constitution is upheld.

The Indian Constitution's Article 32 provides a remedy for the

protection of fundamental rights by allowing the Supreme
Writ Jurisdiction Court to issue writs when a citizen's basic rights are violated
The Supreme Court can issue writs such as habeas corpus,
mandamus, prohibition, quo warranto, and certiorari.
➢​ Habeas Corpus is a writ that can be used to release a person
who is unlawfully detained.
➢​ Mandamus is a writ that can be issued to compel a public
authority to perform a duty that it is legally obligated to

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perform.
➢​ Prohibition is a writ that can be used to stop a lower court or
tribunal from exceeding its jurisdiction or acting contrary to the
principles of natural justice.
➢​ Certiorari is a writ that can be used to quash the decision of a
lower court or tribunal that has acted without jurisdiction or in
violation of the principles of natural justice.
➢​ Quo Warranto is a writ that can be used to challenge the right
of a person to hold a public office.
The writ jurisdiction of the Supreme Court is essential in ensuring
that the fundamental rights of citizens are protected and that public
authorities act within the limits of the law.
The Supreme Court can issue writs only for the enforcement of
Fundamental Rights and not for other purposes under Article 32.
The High Court, on the other hand, can issue writs not only for
the enforcement of Fundamental Rights but also for other
purposes under Article 226.
It means that the writ jurisdiction of the High Court is wider
than that of the Supreme Court, the power to issue writs for other
purposes too.

Article 143 of the Constitution of India grants the Supreme Court

the power of advisory jurisdiction.
Clause 1 → If at any time it appears to the President that a
question of law or fact has arisen, or is likely to arise, which is
of such a nature and of such public importance that it is
expedient to obtain the opinion of the Supreme Court upon it.
Clause 2 → The President may, notwithstanding anything in the
proviso to Article 131, refer a dispute of the kind mentioned in
Advisory Jurisdiction the said proviso to the Supreme Court for opinion and the
Supreme Court shall, after such hearing as it thinks fit, report to
the President its opinion thereon
➢​ The marginal note of Article 143 reads “Power of President to
Consult Supreme Court”. The word “consult” shows beyond
doubt that the President is not bound to give effect to the
opinion. Further, an opinion cannot be enforced or
executed.
➢​ The only discretion the Supreme Court has is either to
answer the reference or respectfully decline to send a report to
the President.

Special Leave Petition According to Article 136, an appeal can be made to the Supreme
Court directly from any order, decision, decree, judgement, etc
given by any court or tribunal in India.
➢​ Power of the Supreme Court under Article 136 is

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discretionary and Hon’ble Court may or may not allow special
leave to appeal to any person.
➢​ SLP is not an appeal but a petition filed for an appeal.

Review Petition A judgement of the Supreme Court becomes the law of the land,
according to the Constitution It is final because it provides certainty
for deciding future cases.
Article 137, the Supreme Court the power to review any of its
judgments or orders. This departure from the Supreme Court’s final
authority is entertained under specific, narrow grounds.
It is not necessary that only parties to a case can seek a review of
the judgement on it.
➢​ As per the Civil Procedure Code and the Supreme Court Rules,
any person aggrieved by a ruling can seek a review.
➢​ As per 1996 rules framed by the Supreme Court, a review
petition must be filed within 30 days of the date of judgement or
order
➢​ Rules state that review petitions would ordinarily be entertained
without oral arguments by lawyers. It is heard “through
circulation” by the judges in their chambers.
➢​ In exceptional cases, the court allows an oral hearing

Curative Petition Curative Petition is also supported by Article 137 of the Indian
Constitution.
➢​ A curative petition may be filed after a review plea against the
final conviction is dismissed. It is meant to ensure there is no
miscarriage of justice, and to prevent abuse of process.
➢​ Every curative petition is decided on the basis of principles laid
down by the Supreme Court in Rupa Ashok Hurra Vs Ashok
Hurra & another, 2002
➢​ The court ruled that a curative petition can be entertained if the
petitioner establishes there was a violation of the
principles of natural justice, and that he was not heard by
the court before passing an order.
➢​ It will also be admitted where a judge failed to disclose facts
that raise the apprehension of bias.

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#Issues of judicial review, judicial activism, judicial overreach:
Judicial Review:
As per Black’s Law dictionary, Judicial Review is courts’ power to review the actions of other
branches of government, especially the court’s power to invalidate legislative and executive
actions as being unconstitutional as called as Judicial Review.

●​ Subjects of Judicial Review India:

1.​ Violation of fundamental rights.
2.​ Violation of various legal rights/constitutional restrictions.
3.​ Enactment of statutes and other legislative/executive actions in violation of
Constitutional mandate regarding distribution/separation of powers.
4.​ Delegation of essential legislative power by the legislature to the executive or any other
body.
5.​ Violation of implied limitations and restrictions.

●​ Features of Judicial Review in India:

1.​ It ensures that the government functions within the limits set by the Constitution and
that the rights of the citizens are protected.
2.​ Judicial review also promotes the rule of law and helps to maintain the balance of power
between the three branches of the government.
3.​ It is an essential mechanism to protect the Constitution and its principles, and to ensure
that they are upheld.
4.​ Both Supreme Court and High courts exercise the power of judicial review but ultimate
and final power to determine the constitutional validity lies with the Supreme Court.
5.​ Judicial Review can be conducted in respect of all central and state laws.
6.​ Judicial Review applies only to the questions of law, not questions of fact.
7.​ Limitations - Judicial Review cannot be conducted on laws dealing with subjects in the
ninth schedule of Constitution of India.
8.​ Judicial Review cannot be undertaken suo moto by the courts.

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●​ Constitutional provisions of Judicial Review:

●​ Judgements on Judicial Review:

1.​ S.P. Sampath Kumar v. Union of India - Justice P.N. Bhagwati, C.J. established that
judicial review was a basic feature of Constitution.
2.​ L. Chandra Kumar v. Union of India - Bench stated: “that the power of judicial review
over legislative action vested in the High Courts under Article 226 and in the Supreme
Court under Article 32 of the Constitution is an integral and essential feature of the
Constitution, constituting part of its basic structure”.
3.​ The Constitutional Bench in Kesavananda Bharati case ruled by a 7-6 verdict that
Parliament could amend any part of the Constitution so long as it did not alter or
amend the basic structure or essential features of the Constitution.
4.​ In the case Shreya Singhal v. Union of India, the Supreme Court struck down Section
66A of the Information Technology Act, 2000 in its entirety, and ruled that it was
violative of Article 19(1)(a).
5.​ Vishaka v. State of Rajasthan (1997): In this case, the Supreme Court recognized
sexual harassment at the workplace as a violation of the fundamental rights of women.
The court laid down guidelines for employers to prevent and redress such harassment at
the workplace.

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●​ Some of the common criticisms of judicial review in India are:
1.​ Unelected Judges: Critics argue that this undermines the democratic process and leads to
a situation where a small group of judges can veto the decisions of the elected
representatives.
2.​ Judicial Overreach: judiciary starts encroaching upon the domain of the legislative and
executive branches of the government. Critics argue that this can lead to an imbalance in
the separation of powers.
3.​ Delay and Expense: time-consuming and expensive, which can result in delayed justice
for the citizens.
4.​ Lack of Accountability: Since the judges are appointed through a collegium system, they
are not accountable to the citizens, and their decisions cannot be easily challenged.
5.​ Limited Expertise: Judges may not have the necessary expertise to make decisions in
certain complex policy areas, such as economics or science. This can result in suboptimal
policy outcomes and can limit the government’s ability to implement effective policies.

In conclusion, judicial review is an essential feature of the Indian Constitution that

ensures that the laws passed by the legislature and the actions of the executive are in line
with the Constitution.Judicial review has played a significant role in shaping the Indian
legal system and protecting the rights of its citizens
Judicial Activism,Judicial Overreach and Judicial Restraint:
Judicial Activism denotes the proactive role played by the judiciary in the protection of
the rights of citizens and in the promotion of justice in society.
The concept of judicial activism is inherent in judicial review, which empowers the court to
uphold the constitution and declare the laws and actions inconsistent with the constitution as
void.
Evolution of Judicial Activism:
1.​ Overall the relations were cordial between judiciary and Parliament but some dents
were evident since as early as 1950. SC’s activist decisions in Romesh Thapar v. State of
Madras, Champakam Dorairajan v. State of Madras invalidating the laws passed by the
Parliament forced the Parliament to pass 1st Amendment Act, 1951 which added
Ninth Schedule to the Constitution.
2.​ Kharak Singh Case 1962: It was the first case of judicial activism on the right to liberty.
SC held that ‘personal liberty’ was not only limited to bodily restraint or confinement to
person only but something more than mere animal existence.
3.​ Golak Nath case 1967: An example of judicial activism as SC for the first time, SC
dissented from Shankari Prasad judgement SC declared that the fundamental rights as
enshrined in Part III of the Constitution are immutable and not amendable.
4.​ Kesavananda Bharati Case 1973: SC upheld the sovereign right of Parliament to amend
the Constitution but laid the concept of ‘basic structure’
5.​ Menaka Case 1978: SC overruled its judgement in the Gopalan case by taking a wider
interpretation of the Article 21.it has introduced the American expression ‘due
process of law’.
6.​ In Vishakha v. State of Rajasthan (1997), the Supreme Court issued guidelines for
the prevention of sexual harassment cases under Article 32 read with Articles 141
and 142.

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Parliament has frequently charged the judiciary with judicial interference. The judiciary is acting
outside of its constitutional authority, according to the parliament.

Judicial Overreach- When judiciary assumes the roles and functions of the legislature and
executive, thus diluting the concept of separation of powers, it becomes judicial
overreach.

Judicial overreach is manifested often when the judiciary empowers itself with
extra-constitutional powers. And it is used often with the lamentation on poor working of other
organs of government.

Examples of Judicial Overreach:

1.​ The Supreme Court on December 2016, passed its judgment in the case of Shyam
Narayan Chouksey v. Union of India, which makes it mandatory, that: All the cinema halls
in India shall play the National Anthem before the feature film starts.
2.​ Proactive Censorship in case of Jolly LLB 2 (Movie) The court-appointed a commission that
looked into it, and finally, the commission ordered four cuts in the film and also asked the
CBFC to recertify the film.
3.​ In the Supreme Court, ruling on a PIL which was about road safety, has banned the sale of
liquor at retail outlets, as also in hotels, restaurants, and bars, that are within 500m of
any national or state highway.
4.​ The Lodha Panel was set up by the Supreme Court, following the allegations of corruption,
match-fixing and betting scandals in Indian cricket. The committee was set up in an attempt to
bring back law and order into the BCCI and the game of cricket.

Judicial activism and Overreach has arisen mainly due to:

1.​ The failure of the executive and legislatures to act.
2.​ Since there is a doubt that the legislature and executive have failed to deliver the desired
results.
3.​ It occurs because the entire system has been plagued by ineffectiveness.
4.​ The citizens of the country look up to the judiciary for the protection of their rights
and freedoms. This leads to tremendous pressure on the judiciary to step in aid of the
suffering masses.
5.​ Due to the misuse and abuse of some of the provisions of the Constitution, judicial
activism has gained importance.
6.​ PIL, which is a manifestation of judicial activism, has introduced a new dimension to the
judiciary's involvement in public administration.
7.​ Rise of civil society activism by using law to promote social change through legal
information, legal education, legal assistance, and law reform.

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Implications of Judicial Overreach:
1.​ It destroys the spirit of the constitution as the democracy stands on the separation of
powers between the organs.
2.​ It creates a conflict between the legislative and the judicial system. As the message
which is conveyed with these decisions among the people is of legislative inactivity.
3.​ When Judicial activism helps in strengthening the people’s faith in the judiciary,
the very act of overreach destroys it. As it appears an act of ‘tyranny of unelected’ in a
democracy where elected representatives rule.
4.​ It reduces the trust of the people in public institutions which can be dangerous for
democracy.
5.​ It is a waste of Judicial time, which can otherwise be utilized for hearing various
important matters relating to public importance pending before the court.

Judicial Restraint:
Judicial Restraint is a theory of judicial interpretation that encourages judges to limit the
exercise of their own power. In short, the courts should interpret the law and not intervene in
policy-making.

To preserve the delicate balance of power among the various branches of democracy, the
Supreme Court has repeatedly emphasised the significance of judicial restraint.
➢​ In the case of Minor Priyadarshini v. the Director of Elementary (2016), Justice
Markandey Katju stated, “Under the Constitution, the legislature, the executive, and the
judiciary each have their own broad spheres of operation. If any of these three state bodies
ventures outside of their respective jurisdictions, the Constitution’s delicate balance will be
upset. Therefore, the judiciary must use restraint and repress the desire to act as a
super-legislature”.
➢​ In the well-known case of S.R. Bommai v. Union of India (1994), the Court determined that
there can be no judicial review when there is a high level of political interest involved and that
the judiciary should not get involved.
➢​ Similarly, in Almitra H. Patel Vs. Union of India (1998) the Supreme court refused to direct
the Municipal Corporation on the issue of assigning responsibility for cleanliness of Delhi and
stated that it can only assign authorities to carry out duty that is assigned as per law.

The scope of judicial activism is so broad that no precise definition exists. The powers for judicial
activism or review are derived from the Indian constitution, which empowers them to perform an
effective function by asserting themselves. In the Judiciary, protection of the Constitution, rule
of law, and constitutionalism are strengthened by judicial activism, which serves as a safety net
in the event of a crisis brought on by a different interest group in society.However, courts should
exercise Judicial restraint when implementing the concept. The judges should exercise
self-control and limit their interference with other organs. When judges become overly
enthusiastic, they tend to cross certain lines and it results into judicial overreach.there
must be a distinction between judicial activism and judicial overreach because judicial
overreach will destabilise the judiciary.

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#Article 142, need, challenges, way ahead — with relevant case laws:
Article 142 titled ‘Enforcement of decrees and orders of the Supreme Court and orders as
to discovery, etc.’ has two clauses.
1.​ Article 142(1) reads: 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.
2.​ Article 142(2) reads: “Subject to the provisions of any law made in this behalf by
Parliament, the Supreme Court shall, as respects the whole of the territory of India, have
all and every power to make any order for the purpose of securing the attendance of any
person, the discovery or production of any documents, or the investigation or
punishment of any contempt of itself.”

●​ Significance:
1.​ It has been invoked to protect the rights of different sections of the population.
2.​ According to Shri Thakur Das Bhargava, natural justice is above law, and the
Supreme Court will also be above law, in the sense that, it shall have full right to pass
any order that it considers just.
3.​ Serves as a check on the government, acting as a system of checks and balances with
the legislature. ​
4.​ It provides complete justice to various deprived sections of society or protects the
environment.

Judgements and Scope of Power:

SC has defined its scope and extent through its judgments over time.
1.​ Prem Chand Garg case: SC held that an order to do complete justice between the parties
“must be consistent with both, the fundamental rights and the the substantive provisions
of the relevant statutory laws.
2.​ The seven-judge bench in ‘Antulay Case’ upheld the 1962 ruling in ‘Prem Chand Garg
3.​ Union Carbide Corporation vs Union of India: The SC in 1991 ordered UCC to pay
$470 million in compensation for the victims of the tragedy
4.​ Invoked Art. 142, In granting five acres of land in Ayodhya Case, but outside the
disputed area, to Muslim parties
5.​ State of Karnataka vs Umadevi: complete justice” under Article 142 means justice
according to law and not sympathy.
6.​ Recently Constitution Bench of the Supreme Court held that a court can directly grant
divorce under Article 142 of the Constitution in cases where the marriage has
irretrievably broken down.

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●​ Criticism of Article 142:
➢​ Arbitrary and ambiguous: misuse due to the absence of a standard definition for the
term “complete justice”
➤​ Supreme Court Bar Association vs Union of India: powers under Article 142 are
supplementary in nature and could not be used to supplant or override a substantive
law
➤​ Jideranath vs Jubilee Hills Co-op House Building Society: in exercise of powers
under Art.142, no injustice should be caused to a person not party to the case
➢​ The power has been criticised on grounds of the separation of powers doctrine.
➢​ Promotes Judicial Overreach.
➤​ Eg: Ban on the sale of alcohol along national and state highways where the court
extended the ban to State highways as well
➢​ Fundamental rights ignored: In the coal block case without hearing allottees, the apex
court imposed a huge penalty on the owner/allottees of coal blocks. It shows that while
giving “complete justice”, the Apex court ignored the fundamental rights of an individual.

Way Ahead:
1.​ The Apex Court could make a strict guideline that justifies the use of Article 142 and
promotes judicial restraint.
2.​ The SC can, in every such case, ensure that it would be a “complete justice” for the society
without affecting the rights of citizens.
3.​ Limiting judicial discretion: All cases invoking Article 142 should be referred to a
Constitution Bench of at least five judges so that this exercise of discretion may be the
outcome of five independent judicial minds.

Conclusion: Drafting Committee of the Indian Constitution was mindful of the wide-reaching
nature of the powers and reserved it only for exceptional situations, which the existing law
would have failed to anticipate.

#Independence of judiciary— constitutional provisions, issues and way forward:

Independence of the judiciary means a fair and neutral judicial system of a country, which can
take its decision without any interference of the executive or legislative branch of
government.
Judicial Independence is guaranteed in the constitution and cemented as part of ‘Basic
Structure of Constitution’ by the Kesavananda Bharati (1973) Judgement. The Judiciary
keeps in check the executive and Legislature in accordance with the ‘principle of separation of
powers’ derived from Article 13.
How the Constitution of India ensures the independence of the Judiciary?
●​ Security of Tenure: Once appointed, the judges cannot be removed from the office except by
an order of the President and that too on the ground of proven misbehavior and incapacity
(Articles 124 and 217).
●​ The salaries and allowances of the judges are fixed and are not subject to a vote of the
legislature.

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●​ Powers and Jurisdiction of Supreme Court: Parliament can only add to the powers and
jurisdiction of the Supreme Court but cannot curtail them.
●​ No discussion in the legislature of the state with respect to the conduct of any judge of
Supreme Court or of a High Court in the discharge of his duties.
●​ Both the Supreme Court and the High Court have the power to punish any person for their
contempt(Article 129 for SC and Art 215 for HC).
●​ Separation of the Judiciary from the Executive: Article 50 states that the state shall take
steps to separate the judiciary from the executive in the public services of the state.

Importance of Independence of Judiciary:

1.​ Accountability to the people: It helps to keep the executive and legislature accountable
to the people through judicial review and judicial activism.
2.​ Constitution interpretation: A written constitution can hardly be effective in practice
without an independent and impartial arbiter of constitutional issues.
3.​ Rule of law: For the maintenance of the rule of law and fair judicial administration, an
independent judiciary is of utmost importance.
4.​ Protection of individual rights: Only an impartial and independent judiciary can
protect the rights of the individual and can provide equal justice without fear and favour.
5.​ Prevent arbitrary acts: Independent judiciary plays an important role in controlling the
arbitrary acts of the administration.
6.​ Prevent autocracy: Judicial independence is important for that a democracy does not
transform itself into an autocracy. Without an independent judiciary, we will have
dictatorship, as the executive will be able to do whatever it likes.
7.​ Free and fair elections: The judiciary’s role in deciding the validity of presidential,
vice-presidential, parliamentary and state legislative elections also necessitates
independence of the judiciary.

Issues that impact judicial independence:

1.​ Lack of transparency in judge’s appointment: India’s judges have been appointed by a
“Collegium” of judges.
2.​ Case-allocation procedures: There is opacity in internal workings of the Court that
impact independent decision-making.Criticisms point to many issues with the procedure,
which included the allocation of politically sensitive cases to favourable judges.
3.​ Political favouritism: Often, judges who have favours or relationships with senior judges
of the Supreme Court or the Executive get promoted to or appointed to more favourable
positions.
4.​ Judicial overreach: Since there is no system of checks on the Supreme Court, it can
interfere with the purview of the legislature and judiciary.

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Independence of the judiciary is one of the basic structures of the Indian Constitution. In S.P.
Gupta v. Union of India, the Supreme Court held that the concept of independence of the
judiciary is a notable concept which inspires the constitutional scheme and constitutes
the foundation on which the edifice of our democratic polity rests. It is the judiciary
which is entrusted with the task of keeping every organ of the state within the limits of the law
thereby making the rule of law meaningful and effective

Way Forward:
1.​ Judicial independence ensures public confidence as an institute of the last resort where
justice will be served despite any opposition and Influence.
2.​ People place high credibility and trust in the judiciary to get justice in case of any kind of
misconduct by the executive.
3.​ The latter clause and confidence will be meaningless if executive interference is allowed
into the process of judicial proceedings as well as judicial bias over the executive.

#Judiciary and women’s rights — relevant case laws:

As our former Prime Minister J.L Nehru said: "You can tell the condition of a nation by
looking at the status of its women".
Women who constitute half a human population have been discriminated harassed and exploited
irrespective of the country to which they belong, un-mind of the religion which they profess and
oblivious of the timeframe in which they live.
Since ages the status and the position of women in India is a
controversial subject, as it reflects the contradictory and the paradoxical nature of the Indian
society. In one way people offers prayers to women as goddess, more over Indian tradition and
the culture says that "yatra nari pujyante tatra ramante devta". But at the same time and in
other side women are considered to be in the secondary position and they are put to atrocities
even before birth till death.
The Indian judiciary comprising the High Courts of the states and the Apex Court i.e. the
Supreme Court have, time and again, delivered judgments and orders that uphold the rights and
dignity of women in the country. The progressive judgments delivered by these courts, since
Independence, have helped and, sometimes, persuaded the Indian executive and the legislature
to frame laws to uphold women`s rights.

Some of Judgement’s related to women’s rights:

VISHAKA VS STATE OF RAJASTHAN SC commissioned the Vishaka guidelines that defined

(1997) sexual harassment and put out guidelines that, the
person-in-charge of the particular institution, organisation
or office whether be it private or public, will be responsible
in taking effective steps to prevent sexual harassment.
VINEETA SHARMA VS RAKESH This judgment changed the course of history when it was
SHARMA (2020) decided by the Court that coparcenary rights under
Section 6 of Hindu Succession (Amendment) Act, 2005
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daughters born before the amendment have now been
given full coparcenary rights.
LATA SINGH VS STATE OF UTTAR Everyone has the right to marry and a definite right to
PRADESH (2006) choose their life partner under the ambit of Article 21 of
the Constitution. This fundamental right of any citizen
cannot be violated at the instance of another person.
TAMIL NADU VS SUHAS KATTI (2004) SC-to convict a person on the grounds of sending obscene
messages by harming the reputation and character of the
woman and also by outraging her modesty-Cyber Bullying.​

CENTRE FOR ENQUIRY INTO HEALTH Supreme court-banned all advertisements relating to
AND ALLIED THEMES (CEHAT) VS pre-natal sex determination techniques.
UNION OF INDIA (2015)​

MEDICAL TERMINATION OF Judgement:

PREGNANCY ACT JUDGEMENT (2022) ➢​ Right of every woman to make reproductive choices
without undue interference from the State.
➢​ Unmarried and Single women in a consensual
relationship are also entitled to safe and legal abortion.
➢​ Not allowing unmarried women the right to abortion
between 20 to 24 weeks is a violation of the right to
equality before law under Article 14 of the
Constitution.
➢​ Also ruled that under the Medical Termination of
Pregnancy Act or MTP Act, rape would include marital
rape as well.
➢​ This means, if a woman has non consensual sex with
her husband, she has the right to undergo abortion.

THE SECRETARY, MINISTRY OF All women army officers are eligible for permanent
DEFENCE V BABITA PUNIYA & ORS. commissions, allowing them to be in commanding
(2020) roles.
INDIAN YOUNG LAWYERS Devotion cannot be subjected to gender
ASSOCIATION VS THE STATE OF discrimination-Sabrimala.
KERALA (2019)
MOHD. AHMAD KHAN V. SHAH BANO The court ruled that a divorced Muslim woman is entitled
BEGUM (1985) to maintenance under Section 125 of the Code of Criminal
Procedure, 1973, despite any conflicting provisions of
Muslim personal law.
JOSEPH SHINE VERSUS UNION OF Constitution Bench struck down the offence of “adultery”
INDIA(2018) under Section 497 of the Indian Penal Code. Observing that
the law on adultery was but a codified rule of patriarchy
STATE OF JHARKHAND VERSUS Court reiterated its categorical ban on the “two finger
SHAILENDRA KUMAR RAI(2022) test” and said it was irrelevant to determination of rape
and that it violated the dignity of rape survivors or victims

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STATE OF PUNJAB VERSUS GURMIT Held that a testimony of a rape survivor or victim is
SINGH(1996) “inherently credible.” The delay in lodging an FIR can be
due to a variety of reasons

There are some issues also in judiciary:

1.​ Indian Judiciary is not Gender-Sensitive.
2.​ Examples: The Madhya Pradesh (MP) High Court (HC) asked a man (accused in a case of
attempting to outrage the modesty of a woman) to visit the home of the alleged victim
and request her to tie a rakhi.
3.​ Bombay High Court ruling that held that “skin-to-skin contact” between an accused
person and a minor was necessary to establish a case under the Protection of Children
from Sexual Offences Act, commonly known as the POCSO Act.
4.​ So there is need of gender-sensitisation of Judiciary.
5.​ Judges, who might belong to the “old school” and are maybe “patriarchal” in outlook,
should be sensitised to deal with cases of sexual violence so that they do not pass orders
objectifying women in such cases.
6.​ The goal must be to achieve at least 50% representation of women in all leadership
positions
7.​ Recently Judiciary launched Handbook on gender stereotypes.
Gender Sensitisation:
The Handbook on Gender Stereotypes is released by the Supreme Court of India with the intention
of assisting judges and legal practitioners in recognizing, understanding, and combating gender
stereotypes present in legal language and judgments. It also provides specific examples of language
that should be replaced with more neutral and accurate terms. For instance, it suggests using
"woman" instead of "career woman," "street sexual harassment" instead of "eve teasing," and
"rape" instead of "forcible rape."

#Judiciary and environment — relevant case laws:

India, with its diverse ecosystems and population, faces numerous environmental challenges.
From air pollution and deforestation to water scarcity and biodiversity loss, the country’s natural
resources are under significant pressure.
In this context, the role of the judiciary becomes paramount in ensuring environmental
protection. The Indian judiciary has played a crucial role in interpreting and enforcing
environmental laws, adjudicating disputes, safeguarding environmental rights and shaping
environmental governance.

M.K. Ranjitsinh & Ors. v. Union of Supreme Court of India acknowledged the Right to
India & Ors protection from climate change impacts as part of the
fundamental rights to life (Article 21) and equality (Article
14) enshrined in the Indian Constitution.
M.C. MEHTA V. UNION OF INDIA Laid down the principle of ABSOLUTE LIABILITY in this
(1986) oleum gas leak case.

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VELLORE CITIZENS' WELFARE The court laid down the "polluter pays" principle and held
FORUM V. UOI (1996) that those responsible for causing environmental damage
would be liable for the costs of restoration.

M.C. MEHTA V. KAMAL NATH The court ordered the closure of industries operating in and
(1997) around the Taj Mahal to protect the monument from
pollution

RURAL LITIGATION AND The natural resources should be used with requisite attention
ENTITLEMENT KENDRA, and care so that ecology and environment may not be
DEHRADUN VS. STATE OF UTTAR affected in any serious way.Introduced concept of
PRADESH (1985) Sustainable Development

INDIAN COUNCIL FOR Judgment established the requirement of Environmental

ENVIRO-LEGAL ACTION V. UOI Impact Assessment (EIA) before starting any development
(1996) project to ensure its potential environmental impacts are
considered.

➢​ Diversion of forest land for non-forest purposes must be

done strictly in accordance with the law and after due
T.N. GODAVARMAN THIRUMULPAD
diligence.
V. UOI (1997)
➢​ The principle of “sustainable development” must be
followed in forest conservation and that the rights of forest
dwellers and tribal communities must be protected while
conserving forests.

SUBHASH KUMAR V. STATE OF The Supreme Court declared the right to a pollution-free
BIHAR (1991) environment as a fundamental right under Article 21 of the
Indian Constitution.

MUNICIPAL CORPORATION OF NGT has power to take suo motu cognizance of

GREATER MUMBAI V ANKITA environmental issues, even though the, NGT Act,2010 does
SINHA & OTHERS (2021) not expressly provide the NGT with power to take suo motu
cognizance.

Narmada Bachao Andolan v. Union The Supreme Court upheld that water is a basic need for
of India and Ors. case human survival and an implicit part of the right to life,
human rights, the right to a healthy environment and
sustainable development as enshrined in Article 21 of the
Constitution.

In conclusion, the judiciary plays a crucial role in environmental protection in India. Through its
proactive approach and innovative use of legal principles, the judiciary has emerged as a
powerful force in ensuring sustainable development and safeguarding the environment for
present and future generations. One of the key contributions of the judiciary is the recognition
of the right to a healthy environment as a fundamental right.
Through landmark judgments, the courts have established the link between environmental

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quality and the right to life, emphasising the importance of clean air, water and soil for the
overall well-being of individuals.

#Judiciary and tribals — relevant case laws:

The judiciary has made a series of judicial pronouncements manifesting various dynamics of
tribal rights and entitlements, especially within the broader protection and policy framework.
Some of the Judgements are:

Samata vs. State of Andhra In the landmark case of Samata vs. State of Andhra
Pradesh judgment Pradesh judgment of 1997, (popularly known as the
Samata judgment) the Supreme Court of India
delivered an authoritative verdict in favour of the right
to livelihood of the tribals inhabiting the scheduled
areas of the country.Supreme Court held that tribals can
extract minerals either individually or through cooperating
companies with state help financially in scheduled areas
without affecting their ecosystem or forest land.

Niyamgiri Judgement The apex court recognized the cultural, religious, and
spiritual rights of the tribe on the hills. It gave the Gram
Sabha the authority to examine possible infringements on
their rights due to the proposed project.

Forest Rights Act Judgement The Forest Rights Act, which grants possession rights over
forest lands, applies not only to Adivasi and forest dwelling
communities but also to individuals based on proof of
residence and original possession, the Supreme Court
ruled. The court said all parties have the right to be heard
before eviction.

Nandini Sundar vs. State of This case dealt with the issue of state-sponsored vigilante
Chhattisgarh (2011) groups called Salwa Judum and their impact on tribal
communities in Chhattisgarh. The Supreme Court ordered
the disbandment of Salwa Judum and emphasized the
protection of tribal rights.

PRATHVI RAJ CHAUHAN VS UOI Preliminary inquiry is not essential before lodging an FIR
(2018) under SC/ST act and the approval of senior police officials
is not needed.

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#Judiciary and living constitution — relevant case laws:
“Constitution is not a mere lawyer's document. It is a vehicle of life, and its spirit is
always the spirit of age.” — Dr B.R. Ambedkar.

The Constitution of any nation is the supreme law of the land. It guarantees various rights and
liberties to the individual. The question always arises whether these rights and liberties are
frozen at the time when the Constitution was framed and enforced, or they are dynamic, and
evolve with the changing times.
➢​ Originalism i.e. to interpret and enforce the Constitution as it was understood at the
time it was originally written. The two crucial components of originalism are the claims
that constitutional meaning was fixed at the time of the textual adoption and that
the discoverable historical meaning of the constitutional text has legal significance
and is authoritative in most circumstances.
➢​ Living constitutionalism, The Constitution cannot be static for all time to come. It
has to match with the needs and beliefs of the future generation. A living
Constitution is one that evolves, changes over time, and adapts to new
circumstances, without being formally amended.

The Constitution of India, as it is now understood and interpreted, is a living document.

However, that has not been the case always. The cases which were decided immediately after the
Constitution was enforced, gives an indication that the Constitution was interpreted as per the
intent of the framers.

In A.K. Gopalan v. State of One of the earliest cases decided by the Supreme Court, Article
Madras 21 of the Constitution was held to not require Indian courts to
apply a due process of law standard. The Court relied on the
rejection, by the framers of the Constitution, of the “due
process” clause (which appeared in the original draft).

It was only 28 years later that the Supreme Court overruled A.K.
Gopalan in this case and accepted the argument that the
Maneka Gandhi v. Union of expression “procedure established by law” meant a
India procedure “which is just, fair, and reasonable”. Krishna Iyer,
J., in concurrence with Bhagwati, J., summed up that
“procedure” in Article 21 meant fair, not formal procedure;
“law” is reasonable law, not any enacted piece.

Example of Right to Privacy: In Kharak Singh though the Supreme Court invalidated nightly
In Kharak Singh v. State of U.P. domiciliary visits by policemen to persons classified as habitual
and M.P. Sharma v. Satish criminals, it held that the right of privacy is not a
Chandra guaranteed right under our Constitution and therefore the
attempt to ascertain the movements of an individual which is
merely a manner in which privacy is invaded is not an
infringement of a fundamental right guaranteed by Part III.

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The Supreme Court went further in MP Sharma and held
that when the Constitution makers have thought fit not to
recognise “fundamental right to privacy, analogous to the
American Fourth Amendment, we have no justification to
import it.

This question was reconsidered by a nine-Judge Bench of

the Supreme Court in K.S. Puttaswamy v. Union of India.
The Attorney General relying on the above two decisions
K.S. Puttaswamy v. Union of contended that the framers of the Constitution expressly
India. rejected the right to privacy being made part of the fundamental
rights chapter of the Constitution. However, the court spurned
the argument and emphasised that the Constitution “must
be interpreted to respond to the changing needs of society
at different points in time”. Thus, finally in the year 2017,
the Supreme Court overruled Kharak Singh and M.P.
Sharma28, cementing the “right to privacy” as a
fundamental right.

The Supreme Court rejected the originalism theory of

In Supreme Court interpretation in telling words as follows: The proposition
Advocates-on-Record Assn. v. that the provisions of the Constitution must be confined only to
Union of India the interpretation which the framers, with the conditions and
outlook of their time would have placed upon them is not
acceptable and is liable to be rejected for more than one reason
— firstly, some of the current issues could not have been
foreseen; secondly, others would not have been discussed
and thirdly, still others may be left over as controversial
issues i.e. termed as deferred issues with conflicting
intentions.

The Supreme Court in its celebrated decision of

Kesavananda Bharati v. State of Kerala recognised that:
Constitution is expected to endure for a long time. Therefore, it
Kesavananda Bharati v. State of must necessarily be elastic. It is not possible to place the
Kerala society in a straitjacket. The society grows, its requirements
change. The Constitution and the laws may have to be changed
to suit those needs. No single generation can bind the course of
the generation to come.
Constitution is a living organism. It is not that with changing times the meaning changes but
changing times illustrate and illuminate the meaning of the expressions used. The connotation
of the expressions used takes its shape and colour in evolving dynamic situations. The
Constitution would become a stale and dead testament without dynamic, vibrant, and pragmatic
interpretation.

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#PIL — origins, need, relevance, challenges, way ahead — relevant case laws:
Public interest Litigation (PIL) means litigation filed in a court of law, for the protection
of “Public Interest”, such as Pollution, Terrorism, Road safety, Constructional hazards etc. Any
matter where the interest of public at large is affected can be redressed by filing a Public Interest
Litigation in a court of law.
PIL is based upon Article 39 A which makes sure that state secures and provides justice
without any discrimination based on caste, religion, creed etc.
Background of PIL:
➢​ PIL concept introduced by Justice
Krishna iyer in Mumbai Kamagar
Sabha v. Abdul Thai case, where
unregistered workers association was
granted to institute writ petition under
Article 32.
➢​ First-ever reported PIL was
Hussainara Khatoon v. the State of
Bihar that focused on inhumane
conditions of prisons and undertrials.
➢​ New period of PIL Movement was
started by Justice P.N. Bhagwati in SP
Gupta v. Union of India case.Justice
Bhagwati has been called os the father of
PIL in India.

Significance of PIL:
1.​ Accessible legal redressal for all, especially poor and marginalised, balance of law and
justice.
2.​ Allows access to justice for economically challenged sections, and provides a platform for
them to advocate for their rights.
3.​ Implements judicial review concept.
4.​ Ensures judicial monitoring of state institutions (transparency, inter se checks and
balances between wings of the government).
5.​ Democratizes justice; protects human rights.
6.​ Raises awareness on important issues. Allows judicial monitoring of state institutions.

Issues with PIL:

1.​ Abuse of the process of law: Over the years, PIL has degenerated into Private Interest
Litigation, Political Interest Litigation, and Publicity Interest Litigation.
2.​ Encroach judicial time: Rise in number of frivolous PILs filed has led to encroachment
upon valuable judicial time.
3.​ Stalling of developmental activities: PIL has been used as a tool to delay developmental
activities. For instance, PIL filled to stall development works undertaken by the Odisha
Government at the premises of Puri Jagannath Temple for the benefit of devotees
4.​ Violate Separation of Power: Credibility of PIL process is now adversely affected by the

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criticism that the judiciary is overstepping the boundaries of its jurisdiction. For instance,
Ban on Liquor sale on highways.
5.​ Delays: PIL matters concerning the exploited and disadvantaged groups are pending for
many years.

SC Landmarks Judgements on PIL:

➢​ SP Gupta v. Union of India, 1981: Any member of public or NGO acting bonafide, can invoke
writ jurisdiction of HC or SC under Article 226 or 32 respectively, seeking redressal against
violation of legal or constitutional rights of persons who due to social or economic or any other
disability cannot approach the Court.
➢​ M.C Mehta v. Union of India, 1987: PIL brought against Ganga water pollution, SC held that
petitioner although not a riparian owner entitled to move the Court for the enforcement of
statutory provisions, as he is the personal interest in protecting the lives of the people using
Ganga water.
➢​ Vishaka v. the State of Rajasthan, 1997: SC recognized sexual harassment as a violation of
fundamental rights of Article 14, 15 and 21.
➢​ Indian Banks’ Association, Bombay & Ors. v. M/s Devkala Consultancy Service and Ors,
2004: In an appropriate case, where petitioner might have moved a court in her private
interest and for redressal of the personal grievance.
●​ Court in furtherance of Public Interest may treat it a necessity to enquire into state of affairs
of the subject of litigation in the interest of justice.
●​ Thus, a private interest case can also be treated as public interest case

Way forward:
1.​ Supreme Court guidelines: To preserve the purity and sanctity of the PIL, in State
of Uttaranchal v. Balwant Singh Chaufal judgement, SC issued several directions to
help constitutional courts separate genuine PIL petitions from the frivolous ones. (Refer
Infographics).
2.​ Adhere to Doctrine: Doctrine of Separation of Power should be adhered to, and courts
should not step into the jurisdiction of other organs.
3.​ Timely Disposal: PIL related to exploited and disadvantaged groups should be taken up
in a timely manner to further social development.
4.​ Penalty: PILs filed by lawyers, citizens filled without research and on frivolous grounds
should be penalized in order to address misuse.

#Contempt of court — need, challenges, way ahead:

This term Contempt of Court can be easily understood as when someone is disrespectful or
disobedient towards the court of law which means that we wilfully fail to obey the court
order or disrespect the legal authorities.

The Indian Constitution and legislature does not provide with a concrete definition of
contempt, however Section 2(a) of The Contempt of Courts,1971 says ‘contempt of court
means civil contempt or criminal contempt’. Section 2(b) & section 2(c) of The Contempt of

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Courts Act, 1971 defines civil and criminal contempt. Although the legislature has not defined
what amounts to contempt it is decided by the court itself and it’s for the court to deal with each
case of contempt under the facts and circumstances of that case.

Constitutional and Legal Provisions for Contempt of

court:
1.​ Article 129: “The Supreme Court shall be a court
of record and shall have all the powers of such a
court including the power to punish for contempt
not only of itself but also of High courts,
subordinate courts and tribunals functioning in
the entire country”.
2.​ Article 142(2): Enables the Supreme Court to
investigate and punish any person for its
contempt.
3.​ Article 215: “Every High Court shall be a court of
record and shall have all the powers of such a
court including the power to punish for contempt
of itself.”
4.​ High Courts have been given special powers to
punish people for the contempt of subordinate
courts, as per Section 10 of The Contempt of Courts Act of 1971.

Arguments in Favour:
1.​ Reduction in respect to the Judiciary: Amendment to the definition of contempt may
reduce the overall impact of the law and lessen the respect that people have for courts and
their authority and functioning.
2.​ Constitutional Source of Contempt Power: Supreme Court and High Courts derive their
contempt powers from the Constitution. The Contempt of Court Act, 1971, Act only
outlines the procedure in relation to investigation and punishment for contempt.
Therefore, deletion of the offence from the Act will not impact the inherent constitutional
powers of the superior courts to punish anyone for its contempt.
3.​ Impact on Subordinate Courts: The Contempt of Court Act allows High Courts to
punish for contempt of subordinate courts. Thus, if the definition of contempt is removed,
subordinate courts will suffer as there will be no remedy to address cases of their
contempt. The Court reject that Law or any of its parts which is found to be
unconstitutional or against the constitution.
4.​ Ambiguity: Amending the definition of contempt will lead to ambiguity; superior courts
will exercise power of contempt under the constitution and may give multiple definitions
and interpretations to what constitutes contempt. Retaining the definition fulfils the
purpose of clarity according to the commission.
5.​ Adequate Safeguards: The Law Commission of India noted that there are several
safeguards built into the Act to protect against its misuse. For instance, the Act
contains provisions which lay down cases that do not amount to contempt and
cases where contempt is not punishable.

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GS2/Polity

Arguments Against Contempt of Court :

➢​ Against Civil Liberties: Contempt law in conflict with freedom of speech and expression
as a fundamental right. Use of contempt law by judiciary causes chilling effect on exercise
of freedom of speech.
●​ Former Justice of Supreme Court, V.R. Krishna Iyer, famously termed the law of
contempt as “having a vague and wandering jurisdiction, with uncertain
boundaries; contempt law, regardless of the public good, may unwittingly trample
upon civil liberties”.
➢​ Wide Scope of Contempt: The definition of criminal contempt in India is extremely
wide, and can be easily invoked. Courts may also initiate proceedings suo motu. Truth and
Good Faith as Defences are seldom entertained, although included as defences under the
Contempt of Courts Act.
➢​ International Disuse: Contempt of court has practically become obsolete in foreign
democracies, with various jurisdictions recognising it is an archaic law.

What is not contempt of court?

1.​ Fair and accurate reporting of judicial proceedings.
2.​ Fair criticism on the merits of a judicial order after a case is heard and disposed of.

Status in other countries:

➢​ England abolished the offence of “scandalizing the court” in 2013.
➢​ Canada ties its test for contempt to real, substantial and immediate dangers to the
administration.
➢​ American courts also no longer use the law of contempt in response to comments on
judges or legal matters.

Way forward:
1.​ Under the Indian Contempt of Courts laws power is discretionary in nature. To check its
abusive use it should be made more determinate and principled.
2.​ Judiciary should balance two conflicting principles, i.e. freedom of expression, and
fair and fearless justice.
3.​ Power to punish for contempt of court must always be exercised cautiously, wisely and with
circumspection.
4.​ There should be an independent panel to check the misuse of Contempt of Court
power.
5.​ Element of ‘mens rea’ may be incorporated in the act → ‘Mens rea’ is a legal concept
denoting criminal intent or evil mind. Establishing the ‘mens rea’ of an offender is usually
necessary to prove guilt in a criminal trial.
6.​ Proceedings may be according to the Indian evidence act and Criminal procedure code.
7.​ The Law Commission of India looked into the issue of Contempt and recommended
that the provision for contempt of courts be retained. However, it also recommended the
definition of contempt in the Contempt of Court Act should be restricted to civil contempt,
i.e., wilful disobedience of judgments of the court.

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