THE NUMERO UNO OF INDIAN JUDICATURE
"Ethics and equity and the principles of justice do not
change with the calendar."
– D.H. Lawrence.
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Chief Justice of India (Bhārat Gaṇarājya ke Mukhya Nyāyādhīśa) is the highest judicial officer in the country; 'The master of the roster', 'the 'Paterfamilias' of the Judiciary', 'The senior-most judge'. Recently, Justice Nuthalapati Venkata Ramana became the 48th CJI.
In the current article, we are going
to discuss the following topics:
●
Overview of CJI Bobde’s tenure
●
The Prashant Bhushan Case
●
Pendency of cases in Indian Judiciary
●
N.V. Ramana’s tenure till now
"With
great power comes great responsibility" - CJI Bobde's tenure.
Under the reign of the 47th
CJI S.A. Bobde, our Supreme Court, came under sharp criticism due to the
accusations of not prioritizing the adjudication of matters of urgency and
cases involving substantial constitutional questions.
●
Validity of The Citizenship Amendment Act, 2019
(CAA) – One of the critical matters which has not been adjudicated to
●
Revocation of Article 370 - In 2019, the Union Government
revoked the special status of Jammu and Kashmir by rescinding Articles 370 and 35A. During the move, several political stakeholders were
detained, the authorities blocked communications, and the internet was shut for
over 17 months before being restored in February 2021.
Multiple petitions were filed, challenging the revocation's validity and
violation of Fundamental rights, i.e., Art. 14, 15, 19, 21. India has been the
central criticism for shutting down internet services to stifle
dissent and oppress dissidents. 70% of global internet shutdowns in
2020 took place in India with more than 100 instances. There have been
a few hearings, but now the matter is on hold and has not been taken up since
then.
The Electoral Bonds case (Adjudicated as of now), Validity of RTI amendment (Notice sent to the Centre), Challenge to the Unlawful Activities
(Prevention) Amendment Act, 2019, etc., are several other cases
involving substantial questions of liberty and equality. Beyond these
professional predicaments, CJI Bobde, was criticized for his
indecorous and unbecoming comments during hearings.
In a Rape case of a minor from
Haryana, in which the girl alleged that she was "cruelly raped", which
led to an unwanted pregnancy, Justice Bobde asked the 23-year-old government servant
who was the accused that "If
he would marry the woman who accused him of rape?” (CJI, in his explanation, expressed
his concerns that his statement was taken out of context. When he was asked
about the court exchange, he clarified and said that
In a case related to marriage on
false pretence, the CJI questioned: “if
sex between a couple living as husband and wife can be termed rape despite the
degree of brutality?”
In a case related to migrants’
crisis, CJI Bobde noted, "If
they are provided meals, why do they need money?"
In Mohammad
Salimullah v. Union of India, the petition of some Rohingya
refugees who were detained in Jammu and Kashmir was rejected, and their
deportation to Myanmar was allowed following the legal procedure. The bench
denied the refugees' basic human rights and disregarded the jus cogens norm of non-refoulment. CJI Bobde, during the hearings,
insensitively remarked that "Possibly
it’s the fear of going back to Myanmar and being slaughtered. But we cannot
control all that
. . . We are not called upon to condemn or condone genocide.”
Despite all the negatives, CJI Bobde
has been a part of many constitutionally vital decisions and judgments like
Justice K.
S. Puttaswamy v. Union of India, Karmanya
Singh Sareen v. Union of India (ongoing), etc. His contribution in
cases concerning the right to privacy, religious freedom cannot be ignored nor
downgraded.
“Disobedience
is the true foundation of liberty. The obedient must be slaves”: The Prashant
Bhushan Case.
Salman Rushdie rightly said, “What is Freedom of expression? Without the
freedom to offend, it ceases to exist.”
Recently, our Hon’ble Supreme Court took Suo
moto cognizance of Shri Prashant
Bhushan’s tweets. They held an Indian public interest lawyer and Advocate on
Record (AOR)
The impugned tweets are:
1. On 27 June 2020, he tweeted that
"When historians in the future look
back at the last six years to see how democracy has been destroyed in India
even without a formal Emergency, they will particularly mark the role of the
Supreme Court in this destruction & more particularly the role of the
last 4 CJIs.”
2. On 29 June 2020, he posted the photo
of the CJI Justice S.A Bobde riding a Harley Davidson motorcycle on his Twitter
handle and tweeted, "CJI rides a
50-lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur, without a
mask or helmet, at a time when he keeps the SC in lockdown mode, denying
citizens their fundamental right to access Justice!”
Law of contempt of court is not
healthy for a thriving and vibrant democracy. This law is seldom used in world
democracies. It is a relic of the British reign, which should be discarded as
it is against the right to freedom of speech and expression enshrined in Article 19(1) of the Constitution of India. A
constitutional amendment to remove the restriction of contempt of court
mentioned in Article 19(2) will be needed to move towards a
more inclusive and transparent judiciary.
After the judgment in the famous
English tort case of Attorney-General v. Observer, 1987, British newspaper
‘Daily Mirror’ published an upside-down picture of three judges with the
caption, ‘You Old Fools’.
No contempt proceedings were initiated against the newspaper. Lord Templeton (one of the
judges in the majority judgment) said that "Judges in England took no notice of personal insults, although I do not
regard myself a fool, though others are entitled to their opinion.”
While delivering the judgment in 'Mac Leod vs St. Aubin’, 1899, Lord Morris noted that,
"Committals for contempt by
scandalizing the court itself has become obsolete in this country. Courts are
satisfied to leave to public opinion attacks or comments derogatory or
scandalous to them.”
Former CJI Gajendragadkar, while
cautioning against unheeded usage of the power of contempt, observed that “Wise Judges never forget that the
best way to sustain the dignity and status of their office is to deserve
respect from the public at large by the quality of their judgments, the
fearlessness, fairness, and objectivity of their approach and by the restraint,
dignity, and decorum which they observe in their judicial conduct.”
Bonafide criticism of any institution, be it Judiciary, Executive,
or Legislature, must not be oppressed, and the judges should not browbeat the
'contemnors'. Prosecution on the pretext of 'too much freedom' or 'too much
democracy' goes against the core principles of our Constitution. The only way
for a democracy to thrive in consonance with the rights of natural justice and
equality is to respect its people and their fundamental rights.
James Maddison in Near v Minnesota noted that “It is better to leave a few of its noxious branches to their luxuriant
growth, then pruning them away to injure the vigour of those yielding proper
fruits.”
Justice
delayed is justice denied: A tale of pendency.
Our courts, from their inception,
have been inflicted with excessive caseloads, lengthy hearings, and pendency of
cases. A Bloomberg report states that the pending caseload in
Indian courts span about 3.65 crores as of 1 February 2020. Between 1 February
and 31 August 2020, the Supreme Court witnessed a 3.6% rise in pending cases to
62,054. Between 29 January and 20 September, the pending cases in high courts
rose by 12.4% to 51.5 lakh. District and subordinate courts saw a 6.6% increase
to 3.4 crore cases during the same period. According to the monthly data, the cases substantially increased
to 4.4 crores in March 2021, a 19% increase from the previous year.
Mounting coronavirus cases and
pendency in Judiciary left many important cases concerning several
constitutional questions on standby like Challenge to CAA, Challenge to revocation of article
370,
Sabrimala temple issue, Creamy layer issue, etc.
In reply to the unstarred question
concerning the state of pendency in the country’s court, our Hon’ble Minister
of Law and Justice stated that over 70% of the unresolved high court files were
civil cases, while the remaining one-third were criminal. The trend was the
opposite for district and subordinate courts, where nearly 2.5 crores of the
3.4 crore impending cases were criminal. The data provided by the minister
stated that Allahabad High court has the highest pending cases. The total
pending cases in High courts were 5.15 crore. Total pending cases in district
courts were 34.4 crores.
These pending cases are taking a
heavy toll on the lives of languishing under trials that cannot get even a
single hearing in courts of justice. The population of undertrials is on a
constant rise, further exacerbated by the COVID-19 pandemic as in the initial
days of nation-wide lockdown, SC only heard “Urgent matters”.
According to a report released by
National Crime Record Bureau (NCRB) titled ‘Prison Statistics India 2019’, there are a total of 1350 prisons
in India. In 2019, the capacity of prisons increased by 1.90%, but the number
of prisoners increased by 2.69% compared to 2018. Thus, the occupancy rate
increased from 117.6% to 118.5% between 2018 and 2019.
This rate has been quite consistent
over the years. The Report further stated that under trial
prisoners formed 70% of the total prison population in 2019, 74.08% of
undertrials were confined for up to 1 year, 13.35% for 1-2 years, 6.79% for 2-3
years, 4.25% for 3-5 years and 1.52% of undertrials were confined for more than
five years.
Other than the inherent slowness of
our judicial system, the most significant factor complementing the gradual
increase in cases is posts of judicial officers being vacant. According to the data released by the Department of
Justice,
there are a total of 7 vacant positions out of the sanctioned strength of 34 in
the Supreme Court of India.
The current vacancy status in the 25
high courts show that out of 1079 sanctioned strength, 404 posts are vacant.
Further deliberation on the data provided by various High Courts shows that more than 12 High Courts
are functioning with less than 2/3 of their sanctioned strength. High courts of
Patna, Calcutta, and Rajasthan have more than 50% of posts vacant.
Niti Aayog’s strategy paper released in 2018 titled ‘New
India @75’ records that, at the current rate of disposal of cases in
our courts, it will take more than 324 years to clear the backlog (In 2018, the The backlog was 2.9 crore which is 34% less than the current backlog).
The new CJI has several challenges
ahead of his one year four months tenure. To minimize the caseload, a neglected
form of adjudication will not suffice, the stakeholders have to devise an an inclusive and deliberate platform for speedy but holistic trial and
adjudication as ‘Justice hurried is
justice buried’ is also true.
A
Suitable successor: Tenure of CJI Ramana till now.
Justice Nuthalapati Venkata Ramana
(NV Ramana) is sworn
in as the 48th Chief Justice of India. He succeeds
He was embroiled in conspiracies
regarding corruption and favouritism, but as we know that actions speak louder than words, he has been a part of some critical judgments related to the very
essence of our Constitution. The Constitution is a living document, and it is
modified according to the prevailing circumstances, Justice NV Ramana has
delivered some vital judgments keeping in mind the current socio-economic
conditions, and we will analyze some of them.
- Anuradha Bhasin v Union of India, 2020 - This case was related to freedom of speech, freedom to
use the internet, and the internet shut down in Jammu & Kashmir during and after the revocation of article 370. The bench was headed by NV Ramana
and was composed of Justices Surya Kant and BR
Garvai. The bench held that the right to trade by internet forms a
fundamental right duly enshrined in Article 19(1)(a) and (g). The bench also held that the internet shutdown could not be for an indefinite period. He noted that "non-recognition
of technology within the sphere of law is only a disservice to the inevitable. In this light, the importance of the internet cannot be underestimated, as from morning to night we are encapsulated within cyberspace, and the use of the internet enables our most basic activities".
- Kirti v Oriental Insurance Company Ltd, 2021 - This case was related to compensation arising out of a motor vehicle accident. The bench was determining the total amount of compensation arising out of the claim by the heirs of the deceased couple.
In a significant move, the bench headed by NV Ramana noted that the value of work by a homemaker is substantial and attains a
special significance. Justice Ramana pointed out that “The conception that house makers do not
"work" or that they do not add economic value to the household is a problematic idea that has persisted for many years and must be overcome”.
- Union of India v K.A. Najeeb, 2021 - This case was related to section 43D (5) of the
Unlawful Activities Prevention Act, 1967, the right to speedy trial and bail. The bench in the case noted that bail is the rule and jail is the exception. The court
Other than this, Justice NV Ramana
was part of other important benches which delivered constitutionally essential
decisions like 'Bringing CJI officer under RTI act', 'ordering an immediate
floor test in the state assembly to prevent horse-trading in Maharashtra in
2019' etc.
Under the chieftainship of CJI
Ramana, our SC, is restoring its sanctity and status as Sentinel on The Qui Vive (watchful guardian). In recent judgments and orders, the Supreme Court focused on
critical issues ranging from detention to personal liberty to legal community.
The SC directed the UP government to
shift journalist Siddique Kappan to Delhi for medical treatment because of
his deteriorating health conditions, which the UP government was reluctant to
do.[1]
SC also agreed to revisit the
constitutionality of the sedition law. SC noted that the law “is muzzling
the media” and “some guidelines must be set”. The court will revisit
the Kedarnath Judgement. In a significant case, SC quashed the sedition charges
against journalist Vinod Dua and upheld that “Every
Journalist is entitled to Protection of Kedar Nath Judgment.”
CJI Ramana, in a live interaction
with Chief justices of High courts, also asked them to ensure that
recommendations for judicial appointments to the High Court reflect the social
diversity of the country. CJI Ramana also stressed upon the need to expediently
fill the vacancies pending and address the digital divide in the country as the
SC is planning to stream live proceedings. In the end, CJI Ramana asked Chief
Justices of the High Court to create a National Judicial Infrastructure
Corporation and take forward a “national plan” for judicial infrastructure on a
priority basis.[2]
Our Judiciary is poised to be the
watchful guardian of the citizens of the country. The urgency which our courts
showed during the COVID-crisis is commendable. Our courts which are determined
to preserve the rights of the country's citizens are working very hard despite
being unable to conduct physical hearings. It's a matter of time to see the
culmination of these thoughts into reality. As Justice Oliver Wendell Holmes
rightly said, "The great thing in
the world is not so much where we stand, as in what direction we are
moving."
[1] Express new service, SC says shift jailed journalist Siddique
Kappan to Delhi hospital, Centre objects, The Indian Express, available at https://indianexpress.com/article/india/supreme-court-siddique-kappan-health-covid-19-uttar-pradesh-govt-7292326/
[2] Express news service, Interaction with high court CJs: CJI takes
stock of court work during Covid time, discusses digital divide, The India
Express, available at https://indianexpress.com/article/india/interaction-with-high-court-cjs-cji-takes-stock-of-court-work-during-covid-time-discusses-digital-divide-7344848/
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