HISTORICAL BACKGROUND

Regulating Act of 1773– Est. Supreme Court of Judicature at Calcutta as a Court of Record,
GoI Act 1935– Federal Court of India-jurisdiction to solve disputes between provinces and
federal states
GoI Act of 1935.-Integrated judicial system adopted
SC of India-26 January 1950 -Replacement of British Privy Council-greater jurisdiction

POSITION OF SC UNDER CONSTITUTION

• Part V - 124 to Art.147

• 130 – Constitution declares Delhi as seat of SC

authorises CJI-determine other place or places- as seat of SC - approval of President.

SC (Number of Judges) Bill of 2019-from 31 to 34 including the CJI.

Federal and highest constitutional court of India

• Final interpreter of constitution

• Protector and defender of FR
• Court of record (Art.129)

CONSTITUTIONAL PROVISIONS FOR INDEPENDENCE OF SUPREME COURT

Mode of appointment – Judges of SC -appointed by President -in consultation with members
of judiciary (SC and HC)
Security of tenure – Removed from office by President -only -for proved misbehaviour and
incapacity
Fixed service conditions – Cannot be changed to disadvantage after appointment except
during financial emergency (Art.360)
Expenses charged on the consolidated fund- Salaries, allowances and pensions of judges +
administrative expenses of SC
Conduct of judges cannot be discussed –in Parliament or in a State Legislature, except
when impeachment motion under consideration.
• Freedom to appoint its staff
Jurisdiction cannot be curtailed – Parliament can extend Jurisdiction of SC but not authorised to
curtail jurisdiction and powers of SC.
• Separation from Executive –Art.50- separation of judiciary from executive
Ban on practice after retirement – Retired judges of SC prohibited from pleading or acting in
any Court
Power to punish for its contempt –

ORIGINAL JURISDICTION

• As a Federal court, SC decides disputes on-

o Any dispute between Centre and one or more states; or
o Centre and any state or states on one side and one or more states on other;
o Between two or more states.

does not extendto–

• Dispute arising out of any pre-constitution treaty, agreement, covenant, engagement,

sanad
• dispute arising out of any treaty, agreement which specifically provides that -said
jurisdiction does not extent to such a dispute-
o Inter-state water disputes.
o Matters referred to Finance Commission.
o Adjustment of certain expenses and pensions between Centre and states.
o Ordinary dispute of Commercial nature between Centre and states.
o Recovery of damages by a state against Centre.

WRIT JURISDICTION
empowered to issue writs- habeas corpus, mandamus, prohibition, quo-warranto and certiorari
for the enforcement of the FR

• SC has original and concurrent jurisdiction in this regard.

APPELLATE JURISDICTION

• Appeals in constitutional matters – If HC certifies that -case involves a substantial

question of law- that requires interpretation of Constitution.
• Appeals in civil matters – Case involves a substantial question of law or needs to be
decided by SC.
• Appeals in criminal matters – If HC has- on appeal reversed an order of acquittal - and
sentenced him to death- or has taken before itself any case -from subordinate court- and
convicted accused -and sentenced him to death -or certifies that -case is a fit one for
appeal to the SC.
• Appeals by special leave (Art.136)– SC authorised to grant special leave
appeal- contains-
o Discretionary -, cannot be claimed as a matter of right.
 o any judgement -whether final or interlocutory.
o any matter – constitutional, civil, criminal, income-tax, labour, revenue,
advocates, etc.
o can be granted against any court or tribunal (except a military court).

COURT OF RECORD (ART.129)

judgements, proceedings and acts of SC -recorded for perpetual memory
admitted to be of evidentiary value
recognised as legal precedents and legal references.

CONSTITUTIONAL INTERPRETATION (ART.147)-final interpreter of Constitution.

Role of SC in Environmental legislation-DO from law notes[pyq 22]

OTHER POWERS OF SUPREME COURT

Adjudicate disputes regarding -election of president and vice–president-original, exclusive and
final authority
enquires into conduct and behaviour of chairman and members-On reference made
by president,-advice-binding on President.
Self-correcting agency – Power to review-previous rulings
authorised to withdraw cases pending before high courts and dispose them by itself [EG-Case
related to legalising same sex marriage]
Laws of SC -binding on all courts
All authorities (civil and judicial) - should act in aid of Supreme Court (Art.144)
Power of judicial superintendence and control over all courts and tribunals

INDIAN SUPREME COURT VIZ-A-VIZ AMERICAN SUPREME COURT

Indian Supreme Court American Supreme Court

• Limited scope of
wide and large.
judicial review

• Plenary powers-Art
• No plenary powers
136-SLP

• Advisory jurisdiction -
Art.143 (By attorney
• No advisory jurisdiction.
general on behalf of
president)
 • “procedure established • “Due process of law” is
by law” is followed followed

• Parliament authorised to
• Constitution
increase jurisdiction and
limits jurisdiction and
powers of SC. (But could
powers of federal court.
not reduce it!)

covers federal cases,

• Original jurisdiction of
naval forces, maritime
SC -confined to federal
activities, ambassadors,
cases.
etc.

• Appellate jurisdiction of
is limited to
SC covers constitutional,
constitutional cases only.
civil and criminal cases.

Judicial apointments

Article 124(2)-Judges of Supreme Court -appointed by the President-consult such a number

of Judges of Supreme Court and of High Courts- as may deem necessary for the purpose.

Article 217-Judge of a High Court---appointed by President in consultation with CJI +Chief

Justice of HC + Governor
Procedure for Various Judicial Appointments:

• For CJI:

o President appoints CJI and other SC judges.

o outgoing CJI recommends his successor.

strictly by seniority- since.-[1973-A N Ray appointed-setting aside seniority of 3 judges]

For SC Judges:

▪ proposal initiated by the CJI.

▪ CJI consults Collegium + senior-most judge of court -from High Court
to which recommended person belongs.
 ▪ consultees -record opinions in writing

Collegium sends recommendation to Law Minister- forwards it to Prime

Minister- advise President.

For Chief Justice of High Courts:

▪ as per policy of having Chief Justices from outside respective States.

▪ Collegium takes call on elevation.
▪ recommended by a Collegium comprising CJI and two senior-most
judges.
▪ proposal-initiated by outgoing Chief Justice of High Court- consultation
with two senior-most colleagues.
▪ recommendation -sent to Chief Minister-who advises Governor-
send proposal to Union Law Minister.

Collegium System

Evolution
First Judges Case (1981):S P Gupta Vs Union of India
consultation does not mean concurrence
only implies an exchange of views.

SECOND JUDGES CASE:Supreme Court Advocates-on-Record Association Vs Union of India,

devised ‘Collegium System’
accorded primacy to the CJI in matters of appointment and transfers
“consultation” would not diminish primary role of CJI in judicial appointments.
role of CJI -primal in nature-executive cannot have -equal say in the matter.

THIRD JUDGES CASE:re Presidential Reference case (1998):

consultation process to be adopted by CJI- requires ‘consultation of plurality judges’.
sole opinion of the CJI -not constitute consultation process.
should consult a collegium of four senior-most judges
even if two judges give an adverse opinion- should not send recommendation to government.
recommendation made by cji- without complying with norms of consultation process -not
binding on government.

benefits of the Collegium System?

isolates Judiciary from influence of Executive and Legislature.
ensures independence of Judiciary
Executive as Main Litigant:accounting for ~50% of the cases.-may impact impartiality
Expertise:Executive lack expertise regarding requirements of a Judge.
Judicial Independence -Basic feature of Consti

Issues

Exclusion of Executive:
Opaques transfer mechanism-CJ of MAdras HC transferred to Meghalay HC[viewed as
punishment posting by judicial experts]
opaque and not accountable
Constitutional Status: Collegium not prescribed in the Constitution.
Transparency-official procedure for selection or any written manual for functioning
of Collegium.
Chances of Favouritism and Nepotism:not provide any specific criteria for testing candidate
Against the Principle of Checks and Balances:
Close-Door Mechanism:no official minutes of collegium proceedings. + not involve any official
secretariat.
Overlooks several talented junior judges and advocates.
Unequal Representation:women fairly underrepresented in higher judiciary.

Constitution (99th Amendment) Act, 2014:

introduced 3 primary Articles.

• 124A, created constitutional body – NJAC to replace collegium system.

• Article 124B, -conferred NJAC powers to make appointments.
• Article 124C,- empowering Parliament to regulate NJAC’s functioning.

(NJAC) consisting of
CJI -ex officio Chairperson
one of the eminent persons to be nominated from SC/ST/OBC/minorities or women)

• Two senior-most Supreme Court Judges as ex officio members

• Union Minister of Law and Justice -ex officio member
• Two eminent persons from civil society-nominated by committee consisting of CJI +
PM + LOP

one of eminent persons -be nominated from SC/ST/OBC/minorities or women)

person -not be recommended by NJAC- if any 2 of its members- did not accept such
recommendation,
Fourth Judges Case (2015)–

strikes down NJAC (National Judicial Appointments Commission) Act as unconstitutional

encroached upon judiciary’s independence
undermined the basic structure.

issues with NJAC

two eminent persons-need not have -expertise in Law

ambiguous provisions-Section 5(1) of NJAC Act- required NJAC to recommend senior-most
Judge of Supreme Court as Chief Justice of India- “if he is considered fit to hold the Office”
criteria for fitness -not been defined.
veto power by any two members-resulted in overriding of Judicial opinion.
CJI -no Casting Vote
Both CJI & NJAC could nominate appointment of HC judges-could have resulted in conflict
Parliament -power to nullify NJAC regulations-thereby affecting judicial independence
Executive as Main Litigant:~50% of the cases.-may impact impartiality of Judiciary

Collegium System and NJAC

Collegium NJAC

Chief Justice of India and

Chief Justices of the high
courts-based on seniority
group of the senior-
SC and HC judges-basis of
most judges makes
ability, merit, and “other
appointments
criteria specified in
regulations”.
wf

Empower secretariat to select and recommend candidates:

Revive NJAC:following consultations with All stakeholders like Judiciary, Legislature, Bar
Associations
Law commission recommended judge strength fixation formula.
Centre to act on collegium’s decision -within a specific time frame
Government and Judiciary-to Finalize MoP:regarding judicial appointments.
have clear guidelines like transparency, eligibility criteria, mechanism for complaints against
candidates etc.
Bring Transparency:Collegium must disclose reasons for selection and rejection of a candidate.
All India Judicial Services (AIJS):improve quality of judges in lower Judiciary.
Secretariat:for judicial appointments
comprehensive candidate database-to facilitate quick judicial appointments.
written manual-be released by Supreme Court-during appointments and transfers.

Judicial activism

signifies proactive role of Judiciary in protecting rights of citizens.

foundation of Judicial Activism in India-Justice R. Krishna Iyer and Justice P.N. Bhagwati

• Facilitated by relaxation of traditional rule of “locus standi”.

known variously as Social Action Litigation (SAL), Social Interest Litigation (SIL) and Class
Action Litigation (CAL).
Constitutional basis – Art.13, 14, 21, 32, 226 etc.

Examples of judicial activism

• Ganga Action plan→National Mission on Ganga Cleaning.

• Sheela Barse v. State of Maharashtra-addressing custodial violence of women prisoners
in Jail

Medical aid to every injured person(Good Samaritan law)

• Hussainara Khatoon (I) v. State of Bihar-right to speedy trial

Vishakha vs state of Rajasthan guideline- on prohibition of harassment of women at

workplace.

• Environmental Pollution Control Authority- to curb air pollution in NCR.

• Striking down sec. 66A of IT act 2000.
• Maneka Gandhi case -> Broader interpretation of Art 21 (“Due process of law”)
• Olga Tellis Case -Right to livelihood

Prakash Singh Badal case 2006 -> police reform guidelines.

Importance
Upholds Constitutional morality:Naz Foundation Case-strike down Section 377
maintaining rule of law
Executive lacks Political gumption:Sabarimala judgment,-allowed women entry in sanctum

• Social justice enshrined in preamble.

• Meaningful realisation of fundamental rights.

Supreme court vs. Union of India Case-power to do complete justice under Article 142 -is in a
way- corrective power-which gives preference to equity over law- but cannot be used to violate
substantial rights.

• Facilitating effective access to justice to socially and EWS of society.

checks and balances

filling legal vacuum– E.g Vishakha guidelines

• Rising demands for securing human rights.

• Failure of legislations -E.g former Triple talaq law

Criticism
Violation of separation of power doctrine
affects checks and balance
decision of courts in PIL cases -not likely to be enforced. [Abortion allowance for 20+ weeks
unmarried women-allowed by SC-by non compliance by healthcre institutions]
could lead to judicial overreach or adventurism.

Democratic Fears- Unelected body: Judiciary-legislature-representative of will of people

Epistemic Fears-judges not experts of economics, science, politics, society etc.

Management Fears-Pendency of cases + Overburdening of judiciary

Legitimation Fears-as decisions can be bypassed by legislature[25th amendment]

Judicial Restraint:
Self-control exercised by judiciary
limiting itself only to interpretation of original intent of constitution makers.

Maintains SOP
uphold law established by government
respect for democratic form of government -leaving policy on policymakers.

S.R. Bommai v Union of India

power of article 356 -a political question-refused judicial review.
stated that if norms of judiciary -applied on matters of politics-would violate SOP
Almitra H. Patel Vs. Union of India
refused to direct Municipal Corporation on issue of assigning responsibility for cleanliness of
Delhi
stated that it can only assign authorities to carry out duty - assigned as per law.

Ram Jawaya v. State of Punjab

“Our Constitution does not contemplate assumption of functions, by one organ of state, that
essentially belong to another.”

Judicial Overreach:
When judiciary oversteps the powers given to it,
may interfere with functioning of legislative or executive
Encroaching and predatory in nature.
E.g Misuse power to punish for contempt of court.
censorship of Film Jolly LLB II.-4 scenes deleted-based on appointment of judicial committe
Bnaned sale of alcohol withn 500 of national or state highways-without evidence presented
before court-caused economic and employment losses

Judicial adventurism:

Subhash Mahajan v. State of Maharashtra (2018):

court amended SC ST (Prevention of Atrocities) Act, 1989, -annulling Section 18 -which said -
no anticipatory bail will be granted to persons accused under Act.

Arun Gopal v. Union of India

Supreme Court fixed timings for bursting Diwali fireworks and prohibited the use of non-green
fireworks
there are no laws to that effect.
M.C. Mehta v. Union of India (2018):

directed that no BS-4 vehicle should be sold after March 30, 2020

wf

• Judicial discipline -IR COelho judgemennt-SC observed- ‘discipline’ and ‘restriction’

are -two basic golden virtues within which - judge functions .
• Bringing a new Judicial standards and accountability bill to enforce standards.

New Court of appeal: Bihar Legal Society vs CJI-Supreme Court was never intended to be a
regular court of appeal against orders in high courts
Purely political questions and policy matters -to be outside domain of judiciary
Balwant Singh Chaufal Judgment-
Ensuring petition involves issues of “larger public interest, gravity and urgency”

• Verifying credentials of petitioner before entertaining the plea

Checking the correctness of the contents

• Verifying credentials of petitioner before entertaining plea

Women in Judiciary[pyq]

State of Women in Judiciary?

high courts,- mere 11.5%, women judges

Supreme Court-four sitting women judges out of 33
Out of 1.7 million advocates registered,-only 15% are women.
Subordinate Courts:30 percent are women judicial officers
varies from 19.5% in Gujarat to 70% in Goa.

Reasons

Judicial Rules: Article 233-condition of 7 years of practice as advocate- to be eligible - as

District Judge.-dictate a minimum age of 35 years
‘Leaking Pipeline’ Syndrome:women disappear as they move from lower to higher levels.
Patriarchy in Society:face hostile atmospheres within courtrooms.
Opaque Collegium System Functioning:More women enter lower judiciary because of direct
recruitment
Recently, Supreme Court Collegiumrecommended -192 candidates for High Courts-ony 37 i.e
19%, were women.
No Women Reservation:as provided for in lower judiciar
Lack of judicial infrastructure-crowded and cramped, absence of restrooms, and childcare
facilities
Not Enough Women in Litigation:

Significance of

High Women Representation?

Motivates More Women to Seek Justice:
play a role in setting the litigant’s mind at ease.
Diversity on the bench-bring in alternative and inclusive perspectives to statutory interpretations.
Increase Judicial Reasoning:improve justice sector responses to needs of women
Balanced and empathetic approach:cases related to sexual violence.
presence of women -essential for legitimacy of judiciary.
Gender justice-Justice Sujata Manohar (2nd Women Judge of SC) responsible for writing
up Vishakha guidelines.

impacts of Low representation of Women in Judiciary

Prejudice in Judgements:2020, High Court of Madhya Pradesh granted bail to a molester

on condition that he will get a rakhi tied by victim
Deficiencies in Legal Reasoning:Karnataka High Court observed that “after-rape behaviour of
the victim is not how a rape victim ‘ideally behaves’“.
Trust Deficit:about courts’ legitimacy as representatives of societies -since woen 50% of
population

Way Forward
bring about institutional, social and behavioral change
fixed percentage of members as women judges
Gender Bias Task Forces: Similar to the Gender Bias Task Forces in US,
superior judiciary should have horizontal reservation for women
Mentorship System:where senior women judges guide their younger peers.

Suggestions by previous Chief Justice of India N.V. Ramana:

50% representation:for women in judiciary.
increase gender diversity in legal education.
fixed number of seats, reserved for women candidates, in all colleges
Availing basic facilities:especially for women,
form — National Judicial Infrastructure Corporation — to introduce inclusive designs for court
complexes

Judicial reforms
Challenges

Huge Pendency of Cases:30 million cases backlogged

Judge to Population Ratio:20 judges per million heads.[other countries-50-70 judges per million
people]
Undertrial Prisoners:
Recruitment Delays:35% of posts vacant in lower judiciary.
Favouritism and Nepotism in CJI Appointment:
Inequality of Representation:11.5% women HC judges,4 in SC

Initiatives

Virtual court system:carried out virtually via videoconferencing.

eCourts portal:

• E-filing:

ePayment of court fees and fines-with state-specific vendors like SBI ePay, GRAS, e-GRAS,
JeGRAS,
National Judicial Data Grid (NJDG):statistics of cases pending at national, state, district and
individual court level
National Service and Tracking of Electronic Process (NSTEP):for quick delivery of summons,
notices, processes
e-Sewa Kendra:for accessing all facilities provided under eCourts Project.
Interoperable Criminal Justice System (ICJS):transfer data between different pillars of criminal
justice system, like courts, police, jails, juvenile homes and forensic science laboratories
seamlessly,
Almost 1,000 archaic laws have been repealed.

• Live-Streaming Supreme Court Proceedings

National Mission for Justice Delivery and Legal Reforms

• AI Portal SUPACE-aimed at assisting judges with legal research.

Way Forward?

• Transforming the Appointment System:

All India Judicial Services (AIJS)-for district level judiciary

Innovative Solutions to Justice:solving basic civil cases through Metaverse techniques, using
blockchain technology to store data
Better District Courts:, judicial audits of lower courts
Ensuring Gender Parity:fixed percentage of its members as women judges
Computer algorithms should decide on case listing
E-filing should be implemented at all levels:
Virtual hearings: COVID-19 prompted
Ensuring Barrier-Free Access:braille notices

Online Dispute Redressal

open, efficient,transparent process.
Reduction in pendency of cases:
Focus on complex cases: reduce high volume of disputes
Environmental benefit: travel related carbon footprints
Consumer satisfaction: enhancing redress of consumer grievances,
Ease of Doing Business:

cons

Infrastructural issues-technical impediments like high speed internet, latest audio and video
equipment’s etc
suited to resolve only certain types of disputes- like breach of contract.
Procedural issues,-some cases require discovery, interrogatories, recording testimony of a
witnesses and cross-examination
Privacy and data security due to rise in cyber-threats;

lack of
digital literacy; lack of enough arbitrators

Curative petition-

Objectives– Avoid miscarriage of justice and To prevent abuse of process.

Curative petitions were filed in Nirbhaya case.

DO from Consti notes

Poor criminal justice system

Issues
nearly 30 million criminal cases pending in
another 10 million or more cases being added every year,
2005 to 2015 saw a 28% increase in complaints of cognisable offences
NCRB-More than 80% of reported crimes went unpunished
66% of India’s prisoners undertrials,-global average of 32%.
lowest police-population ratios, of 131.1 officers per 1,00,000 population (against the UN norms
of 222).
Transparency International - 62% of people -paying bribes during interactions with police.
38% of all items sent for forensic examination remain unattended for a year or more.

Outdated laws ex. Section 124A IPC

Ranbir Singh committe-2021

Madhav Menon Committee:2007

Reasons for poor criminal justice system:

Underproductive: criminal laws are out-dated.example, Dramatic Performance Act, 1876.
no cooperation between judiciary, prosecutors and the police.
complexity of crime:Increase in cyber-crimes, fake news, mob-lynching etc
haphazard investigation of crimes
Lack of public confidence:expensive, complicated, inefficient and has long-winded procedures
Access to justice:Too expensive

Way forward:

1. Penal code:be modified to incorporate present day societal, economic, and other changes
Police processes:Apply Prakash Singh vs Union of India, guidelines
Victim centric:enable access + compensatory mechanism until completion of trial
incorporate more efficient practices like restorative justice, plea bargaining, etc

Malimath committee recommendations

more judges to dispose-off a large number of pending cases.

Constitution of a National Judicial Commission to deal with appointment of judges
Creation of separate criminal division in higher courts
Article 20 (3)-protecting against self incrimination be modified
Victim Compensation Fund be created under the victim compensation law

pendency in Indian Judiciary:

“justice delayed is justice denied,”

30 million cases backlogged in India’s court system.

4 million -High Court,
60,000 -SC
Supreme Court,-30% of pending cases-more than five years old
Allahabad High Court,-15% of appeals-pending since 1980s.
Law Commission report in 2009-would require 464 years to clear arrears-with present strength
of judges

Reasons
Shortage of judges:35% of posts-vacant in lower judiciary
only 17 judges per million population.- , Law Commission - recommended 50 judges per
million.
Frequent adjournments:in over 50 per cent of matters
poor infrastructure:only 0.09% of GDP to maintain judicial infrastructure.
existing infrastructure-accommodate only 15,540 judicial officers against all-India sanctioned
strength of 20,558.
Burden of government cases:Centre and States-46% of pending cases
Special leave petition:40% of court’s pendency.
Judges Vacation: Supreme Court’s works on average for 188 days a year,-apex court rules
specify minimum of 225 days of work.
Lack of court management systems:no dedicated posts for court managers
Inefficient investigation:
Increasing Literacy:people more aware of rights and obligations

Impacts of Judicial Pendency

Violates Art 21-Speedy trial-right to life and liberty-Article 21 [Hussainara Khatoon V St of
Bihar ]
Erodes social infrastructure:negative effect on social development,
Impacts Ease of doing business-due to poor contract enforceent mechanism
Affects human rights:67% undertrials in prisons
Estimates suggest-judicial delays cost India around 1.5% of its GDP annually
Economic Survey 2017-18-pendency hampers dispute resolution, contract enforcement,
discourage investments, stall projects, hamper tax collection

Measures needed:
Parliamentary Standing Committee suggested:
States-provide suitable land for construction of court buildings
undertake vertical construction in light of shortage of land.
Timeline- for computerisation of all the courts-setting up of e- courts.

Delegating Administrative Function - UK, US and Canada,

creation of National Judicial Infrastructure Corporation (NJIC)
All India Judicial Service,-subordinate judiciary
120th Law Commission of India-judge strength fixation formula.
appoint efficient and experienced judges as Ad-hoc judges
Strict regulation of adjournments-exemplary costs for seeking it on flimsy grounds
Better Court Management System & Reliable Data Collection:categorization of cases on basis
of urgency
Process reengineering:: Involves redesigning of core business processes
Electronic filing of cases:
Revamping of National Judicial Data Grid-by introducing-elastic search
Alternate dispute resolution (ADR):Lok Adalat should be organized regularly
Village Legal Care & Support Centre-to work at grass root level

Law Commission Recommendations

a. Equal role for judiciary, executive in appointment of judges

b. Post of Chief Justice should not be transferable
c. Judges must deliver judgments within a reasonable time

contempt of court act

Contempt of Courts Act 1971,

contempt refers to offence of showing disrespect to the dignity or authority of a court

Civil contempt:willful disobedience to any judgment, decree, direction, order, writ or other
processes of a court or wilful breach of an undertaking given to the court.

Criminal contempt:any publication which may result in:

• Scandalising the court by lowering its authority.

• Interference in the due course of a judicial proceeding.
• An obstruction in the administration of justice.

exceptions-
innocent publication
fair and reasonable criticism of judicial acts
comment on administrative side of the judiciary
Section 13-truth -in the public interest.

Constitutional Background

• Article 129: Grants Supreme Court -power to punish for contempt of itself.
• Article 142(2): Enables Supreme Court to investigate and punish any person for its
contempt.
• Article 215: Grants every High Court the power to punish for contempt of itself.

pros

uphold majesty and dignity of judiciary.

help judges to do their duties-without fear, favour, affection or ill will.
Constitutional Source of Contempt Power: Articles 129 and 215.
Trust in judiciary-sine qua non for existence of Rule of Law.
Protects lower judiciary-ALlows HC to punish for contemmot of subordinate courts
Maintain administration of judiciary:action against wilful disobedient litigants
cons

Against Civil Liberties (Article 19 & 21):

Violating the Doctrine of Overbreadth:criminal contempt definition-too broad-may include
legitiate criticism
Wide Scope of Contempt:
S.Mugolkar v. Unknown (1978)-judiciary cannot be immune from fair criticism,--contempt
action--only when obvious misstatement with malicious intent
Against principles of natural justice-No person can be a judge in his own case
Obsolete in foreign countries-eg-Aerican courts-no actions for comments on judges or legal
matters
NO objectivity-Justice Krishna Iyer-, law of contempt has a vague and wandering jurisdiction
with uncertain boundaries.
Against democratic ethos:suppresses criticism of judiciary by the public.
Misplaced law: An enforced silence,

role of the Attorney General in contempt proceedings?

courts require consent of Attorney General (AG) before taking cognizance of a complaint
AG’s consent mandatory when - private citizen wants to initiate case of contempt of court
saves time of courts-from frivolous petitions
When court itself initiates contempt of court - AG’s consent not required

Safeguards
Duda P.N.V. Shivshankar Case 1998:contempt jurisdiction should not be used by Judges to
uphold their own dignity
Arundhati Roy Case:fair criticism of conduct of a Judge, institution of judiciary, and its
functioning -not amount to contempt if made in good faith and in public interest.

Way Ahead
Law Commission-Definition of contempt should be restricted to Civil contempt
impose only such restrictions- as are needed to sustain legitimacy of judicial institutions.
Establishing a review mechanism, as a safeguard against judicial tyranny
balance two conflicting principles, i.e. freedom of expression, and fair and fearless justice.
must be sparingly exercised considering the subjectivity
objectively define the confines of contempt law and its applicability.
n independent panel to verify the actions which extract contempt law.

Judicial review

Dr. B.R. Ambedkar-provisions related to judicial review -‘heart of the Constitution’.

utilised by courts- in cases like -Bank Nationalisation case (1970), Keshavananda Bharti case
(1973) and recently in the NJAC case.

constitution-
Article 13-any law which contravenes - provisions of part III-shall be void.
Articles 32 and 226-Writ jurisdiction to SC & HC respectively
131:original jurisdiction of Supreme Court in centre–state and inter-state disputes.
Article 132-134: appellate jurisdiction of Supreme Court in constitutional cases, civil cases and
criminal cases.
Article 143:President- can seek -opinion of Supreme Court -on any question of law or fact and
on any pre-constitution legal matters.
Article 245:territorial extent of laws made by Parliament and by Legislatures of States.
Article 246:Dealing with -subject matter of laws made by Parliament and by Legislatures of
States.
Articles 251 & 254:in case of a conflict between central law and state law-central law prevails
over state law -state law shall be void.

• Article 372 (1)- judicial review of pre-constitution legislation.

Types of Judicial Review:

• Reviews of Legislative Actions:

Review of Administrative Actions:enforcing constitutional discipline over administrative

agencies
Review of Judicial Decisions:137-power to review own decisions

• India – Scope of JR is narrower than USA due to ”procedure est. by law“ in India.
• USA – broader than India due to ”due process of law“ in India.
• ”Procedure est. by law“- Only substantive grounds examined i.e whether law is
within power of the authority concerned or not. India adopted from Japan.
• ”Due process of law“- Examined on both grounds of substantive grounds
(lawful/unlawful) and Procedural grounds (Reasonable/unreasonable).

State of Madras versus V.G. Row (1952)

Justice Shastri’s words-judicial review -undertaken by courts -“not out of any desire to tilt at
legislative authority- in a crusader’s spirit,- but in discharge of a duty -laid down upon them
by Constitution”.

Kesavananda Bharati-
judicial review is not a means to usurp parliamentary sovereignty.
is a “system of checks and balances” to ensure constitutional functionaries do not exceed their
limits.

Significance

maintaining supremacy of the Constitution– K.Gopalan v/s State of Madra- it is the constitution
that is supreme -statute law to be valid-must in all cases be in conformity with constitutional
requirements.
checking possible misuse of power by legislature and executive-
Protecting the rights of the people–example, Navtej singh Johar case, - upheld that section 377
of IPC is unconstitutional.
Maintaining federal balance-
securing independence of judiciary–
Prevent tyranny of executive–
Reviewing own decisions:Kesavananda Bharati case-upheld changes in 24th amendment in
Article 368 and Article 13-overruling Golaknath Judgment of 1967.

Limitations [same as judicial activism]

limits functioning of government.

VIolative of Art 50-SOP betn executive and judiciary
No such system in world-amounts to judicial overreach
diminish faith of people in integrity, quality, and efficiency of government.

Alternative Dispute Resolution (ADR)

law commission of India in its report [ADR through Justice dispesation-need of the hour]

Food corporation of India Vs. JOGINDER PAL (1989)

arbitration, mediation and conciliation -brought revolutionary changes in the administration of

justice. -can provide- better solution to dispute -more expeditiously and at a lesser cost than in
regular litigation.

Importance

reduce pendency of cases in courts

provides scientifically developed techniques to Indian judiciary
motive is to provide social-economic and political justice a
achieve equal justice and free legal aid provided under article 39-A
founded on , article 14 and 21-equality before law and right to life and personal liberty
respectively
Lok Adalats alone -disposed more than 50 lakh cases every year on average

important provisions related to ADR

S.89 CPC
provides for the settlement of disputes outside the court-based on the recommendations made
by Law Commission of India and Malimath Committee
Acts which deals with Alternative Dispute Resolution are

Arbitration and Conciliation Act, 1996 and,

Legal Services Authority Act, 1987
Family Court Act, 1984-establishment of family court with a view to promote conciliation
HINDU MARRIAAGE ACT 1955.-under section 23 of Act mandatory duty on part of court
in first instance to bring about settlement outside court between parties.
statutory law regime -extending legal aid comprise -code of Criminal Procedure, Civil Procedure
Code. Mental Health Act, 2017 etc

Advantages

Less time consuming

• Cost effective method:

• free from technicalities of courts
• People are free to express themselves without any fear of court of law
• is non adversarial
• provides opportunity to "expand the pie" through creative, collaborative bargaining

Videoconference hearings:

• specialized expertise is available

Increased compliance with agreed solutions.

Enforceability of Awards-New York Convention, generally provides for recognition of arbitral

awards on par with domestic court judgments

Problems

Section 29A of Arbitration act-allows further extension by courts-after expiry of 18 months

can be used as a stalling tactic.-Guru Nanak Foundation v. Rattan Singh-expressed
disappointment against procedural delays and tardiness in resolution of disputes through
arbitration.
 • generally held in camera,-doubts about impartiality and fairness.

Parties not compelled to continue negotiations or mediation.

Does not produce legal precedents

• Exclusion of pertinent parties weakens final agreement.

May not protect parties’ legal rights.

Parties may have limited bargaining power

• Little or no check on power imbalances between parties.

no guaranteed resolution
resolve only issues of money or civil dispute
resolution proceedings will not result in injunctive orders.
without the protections offered parties in litigation, such as those rules governing discovery.

Types of ADR

Arbitration

• dispute -submitted to an arbitral tribunal -which makes a decision ( "award")

• binding on parties.
• less formal than a trial,
• rules of evidence often relaxed.
• Generally- no right to appeal an arbitrator's decision.
• Except for some interim measures- little scope for judicial intervention
Arbitration and Conciliation Act, 2019

• introduces Part IA (section 43A to section 43M) -creation of Arbitration Council of

India- powers such as grading arbitral institutions, recognising professional institutes
• S.29A-fixd time limit of 12 months in matters other than intl commercial agreements
• Section 11 -appointment of Arbitral Tribunal through Courts -when parties fail to
constitute Arbitral Tribunal under Arbitration Agreement.
• exempts "foreign commercial arbitration" from time limit for completing arbitration
proceedings.
• adds explicit provisions on arbitration processes confidentiality and arbitrator immunity.
• has reduced judicial intervention-appointment of arbitrators -now be done by Arbitral
Institutions.
• new Eighth Schedule-provides various norms, qualifications, and experiences for
endorsement of arbitrators.

New Delhi International Arbitration Centre (NDIAC) Act

to replace International Centre for Alternative Dispute Resolution-(ICADR) as an Institution of

National Importance
conducting of international and domestic arbitration, mediation and conciliation proceedings
Procedure for plea-bargaining-Crpc

Conciliation

• non-binding procedure in which -impartial third party,-assists parties -

reaching mutually satisfactory settlement

parties -free to accept or reject recommendations

• However- if both parties accept settlement-shall be final and binding on both.

Mediation

• impartial person called a "Mediator" -helps parties try to reach a mutually acceptable
resolution of the dispute.
• The mediator does not decide the dispute but helps the parties communicate so they can
try to settle the dispute themselves.
• Mediation leaves control of the outcome with the parties.

Negotiation

• nnon-binding procedure -discussions between parties -initiated without intervention

of third party- object of arriving at a negotiated settlement
Judicial Process Arbitration Mediation

not an adjudicatory
quasi-judicial
process.
adjudicatory process adjudicatory
mediator facilitates the
where a third party decides process -arbitrator(s)
process.
the outcome appointed by
Parties participate
Court or by parties
directly in resolution

Procedure and decision - not controlled,

Arbitration &
governed, by relevant governed by statutory
Conciliation, 1996.
statutes. provisions

binding settlement -only

decision - binding on award -binding on the if parties arrive
parties. parties. at a mutually acceptable
agreement

Personal appearance not not

required
always required. always required.

non-judicial and
formal proceeding held in informal proceeding held
held in private
public in private
following strict
follows strict
procedural stages
procedural stages flexible procedural
stages.

subject to challenge
Decision is appealable final and is not appealable
on specified grounds

Mediation Conciliation Lok Adalat

Voluntary process Voluntary process Voluntary process

Conciliator is a neutral Conciliator is a neutral

third third
Mediator is a neutral third
party. Presiding officer is party. Presiding officer is
party.
a a
neutral third party neutral third party

Service of lawyer is Service of lawyer is Service of lawyer is

available available available
 The function of the
The function of the conciliator is The function of the
Mediator is more active than the Presiding
mainly facilitative facilitative Officer is persuasive
function of the mediator

The consent of the parties The consent of the parties The consent of the parties
is not is is not
mandatory for referring a mandatory for referring a mandatory for referring a
case case to case to
to mediation. conciliation Lok Adalat

Regulated by Code of Regulated by Arbitration Regulated by Legal

Civil and Services
Procedure, 1908 Conciliation Act, 1996 Authorities Act, 1987

Decree/order not
Not appealable. Award not appealable
appealable

parties are actively and parties are actively and parties are actively and
directly directly directly
involved. involved. involved.

Confidentiality is the Confidentiality is the Confidentiality is the

essence essence essence
wf

• Careful drafting of arbitration clauses.

• Stringent procedural safeguards to curb delays

129th Law Commission report and Malimath Committee-mandatory for courts to refer disputes
- ADR rather than litigation.
Extensive training-to act as a facilitator, mediator, and conciliator in ADR process.
, judicial officers -be trained to identify cases - suitable for recourse to ADR.
Setting up of Mediation Centres in all districts of each state
award of ADR -be made binding-appeal only if arrive fraudulently or is against public policy
ADR literacy program
Lok Adalat
Legal Services Authorities Act, 1987 gave a statutory status to Lok Adalats, pursuant to the
constitutional mandate in Article 39-A

OBJECTIVES:[PYQ]

Provide speedy justice.

National Judicial Data Grid-16.9% of all cases in district and taluka courts -three to five years
old.
generate awareness among the public regarding conciliatory mode of dispute settlement
gear up the process oforganizing Lok Adalat
encourage the public to settle
their outside the formal set-up
empower public to participate injustice delivery
system

Advantages
of Lok Adalat:

empower public to participate injustice delivery

system
No Strict Application of Procedural Laws,
Award Binding on the Parties-Section 21
Disputes can be Directly Referred to Lok Adalat
Expeditious Remedy:
Reduces the Burden ofthe Court:
no court fee and no rigid procedural requirement
Disadvantages
of Lok Adalat

90 % cases placed before the Lok Adalat are not between living persons, but against non living
persons.
Presiding Officers Not Act as Facilitator But act as Judges:

Permanent Lok Adalat

organized under Section 22-B of The Legal Services Authorities Act, 1987.
set up as permanent bodies
providing compulsory pre-litigative mechanism for conciliation and settlement of cases relating
to Public Utility Services like transport, postal, telegraph etc.
even if the parties fail to reach to a settlement, the Permanent Lok Adalat gets jurisdiction to
decide the dispute
award of the Permanent Lok Adalat is final and binding upon the parties.

Measures
provide power to enforce the execution of these awards.
widening the jurisdiction of the Lok Adalats in criminal offences
bringing within its purview petty criminal offences
ensure to bring about the required changes every six months to meet the requirements of the
emerging branches of law.
increase the number of Lok Adalats being held
Notice must also be given in the administrative functioning of lok adalats.
organise more mobile Lok Adalats

KHATRI AND OTHERS Vs ST. OF BIHAR (1981)THE Supreme Court held that the right to
free legal services is an essential ingredient of reasonable and justice system fair

In SHEELA BARSE Vs. ST. OF MAHARASTRA (1983) held that the legal assistance to a poor
or indigent accused, who is arrested y is a constitutional and imperative mandate not only by
Article 39A, but also by Articles 14 and 21 of the constitution

Online Dispute Resolution (ODR)

refers to the usage of ICT tools to enable parties to resolve their disputes.

Advantages

Legal Health Promotion:making people aware about the law, their rights and duties,
European Union,-mandatory for merchants to inform consumers of option to avail ODR
Dispute Avoidance:provide citizens information to make informed choices
help parties identify the likely outcome of the case
Dispute Containment:before it enters court systems.
add a digital layer to ADR
Cost Effective:
address the delays in justice delivery
Limits Implicit Bias caused by Human Judgement:

Present Status

Legislative Preparedness for ODR:

NIXI Domain Dispute Settlement Mechanism:, complaints can be filed online and
disputes decided by an arbitrator
Integrated Consumer Grievance Redressal Mechanism (INGRAM)-grievance redressal platform
for consumers-addressed directly by companies
National Consumer Helpline (NCH)-promote consumer welfare.
SAMADHAAN Portal: e-filing and online settlement of (MSE) dues
RBI’s ODR Policy:Nandan Nilekani committee-recommended setting up - two-tiered ODR
system- to handle complaints arising out of digital payments.

Challenges

Digital Infrastructure:(Census 2011 -around 27,721 villages not covered by mobile services.
Digital Literacy: rural penetration rate is only 32.24%, less than 1/3rd
Digital Divide:Internet India Report 2019-women only 1/3rd of internet users in India
Only 27% of total rural population -access to the internet
Behavioural Challenges:lack of Awareness regarding ODR:
Legal Culture:people rely more on courts
Privacy and Confidentiality Concerns:

• Online impersonation
• Breach of confidentiality by circulation of documents

Tampering of digital evidence or digitally delivered awards

Recommendations
Increase Access to Digital Infrastructure:Pradhan Mantri Gramin Digital Saksharta Abhiyan
(PMGDISHA).
Para-Legal Volunteers (PLVs)-generating awareness,
Build Trust in ODR:Comprehensive campaigns utilising multimedia platforms,
Smart contracts-to automate enforceability through transfer of rights and obligations.
introduce mandatory pre-litigation online mediation for certain classes of cases.

GRAM NYAYALAYAS
39A-ensure equal justice on a basis of equal opportunity
114th Report of the Law Commission (1986)-recommended setting up of Gram Nyayalayas
Statutory and Quasi-judicial body-Gram Nyayalayas Act 2008

STRUCTURE
established for every Panchayat at intermediate level
State Government, in consultation with High Court, notifies boundaries of area
under jurisdiction of a Gram Nyayalaya
can hold mobile courts in villages falling under its jurisdiction

JURISDICTION
Gram Nyayalaya shall be a mobile court
powers of both Criminal and Civil Courts
shall follow summary procedure in criminal trial.
shall try criminal cases, civil suits,-specified in First and Second Schedule
powers of a Civil Court
shall try to settle disputes- as far as possible by bringing about conciliation between parties
not bound by the Indian Evidence Act, 1872

pros
makes judicial process participatory and decentralised
statutory alternative to the informal/traditional systems-eg Khap Panchayats
allows appointment of local social activists and lawyers -as mediators
improved accessibility-proceedings in official State languages
Mobile courts-enable regionally equitable justice delivery

ISSUES
Only 208 Gram Nyayalayas in only 11 states
not a single Gram Nyayalayas-in North- Eastern States.

• Issues of vacancies and inordinate delays in awarding judgement.

Absence of a separate cadre of Gram Nyay Adhikari

presided over by First Class Judicial Magistrates or Civil Judges-who are already overburdened
overlapping jurisdiction-due to existence of alternative forums such as labour courts, family
courts, etc
Department-Related Parliamentary Standing Committee Report-held back -because of fund
sharing problem between Central and the State Governments.
Lack of awareness: including the litigants, lawyers, police officers

SUGGESTIONS

Act should be amended-remove ambiguities regarding jurisdiction of Gram Nyayalayas.

Training of Gram Nyay Adhikari-
Creation of a regular cadre of Gram Nyay Adhikari
Infrastructure and Security- Separate building
Establishment of permanent Gram Nyayalayas-every Panchayats at intermediate level
Suitable steps including conferences, seminars etc.