Structure, Organization and Functioning of Judiciary

Centres for Vulnerable Witnesses

SC has asked to set up centres for vulnerable witness deposition so that they can testify without fear or intimidation in a conducive environment. It has asked to set up at least 2 such centres under the jurisdiction of High Court across the country.

Minor survivors of rape, victims of sex abuse are often vulnerable and need to protected while testifying in court. Hence the order recognizes their deserved right and is in concurrence with international norms.

It advocated adoption of guidelines prescribed by the Delhi HC – ‘Recognizing guidelines for Recording Evidences of Vulnerable Witnesses in Criminal Matters’. The guidelines suggested by the Delhi HC includes the following to ensure a safe and conducive environment for witness to testify:

• The victim’s vision of the perpetrator in the court is blocked using a screen
• Questions are carried out in writing and uses clear language that is not embarrassing or hurtful to the dignity of the victim
• Adequate spacing or breaks between questions in case of minors or rape victims

Tribunal Appointment

Tribunals are often constituted for resolution of environmental, administrative, taxation and armed forces issues. Their independence from the executive is key for expeditious, efficient and transparent resolution of national issues.

The Law Commission of India has hence directed the Centre to transfer the appointment responsibility of tribunals to CJI so that tribunals retain their independence from the executive and their credibility and trust in public domain is enhanced.

Law Commission also suggested that HCs enjoying territorial jurisdiction over the tribunal or its appellate forum can review the decision of tribunals

Impunity of Judges

Laws exempting judges from criminal and civil action

• Monopoly of CJI: No criminal case shall be registered against a sitting judge of HC or SC unless the government first consults the CJI. He is a participative functionary in the appointment of judges.
• Protection in Judicial Duty: Section 3 of the Judges protection act protects all judges current and former of HC and SC from civil or criminal proceedings with regard to anything said or any decision taken in course of their judicial duty

How a government can initiate criminal proceedings?

                The government, if it is in possession of substantial evidence that points towards a sitting or former judge taking his decision after accepting the bribe, can initiate criminal proceedings against him or her.

Issues in India’s Justice System

• Accessibility: The judicial system particularly the higher courts are out of reach for the common man of the country with respect to physical distance as well as affordability.
• High Pendency of Cases: As per the National Judicial Data Grid, there are 3 crore cases that are pending in India’s judiciary
• Lack of Judges: As per the World Justice Report, India has 17 judges per a million people with almost 6000 lower court chairs
• Ineffective Functioning of ADR: ADR mechanisms like Lok Adalat and Gram Nyayalyas have not been effective in reducing the high pendency of cases in the normal judicial system
• Retributive rather than Reformative: Indian justice system has been of retributive in character and offers little scope for reformation. Those convicted face torture and within their prison time become hardened criminals eventually excluded from society
  • Martin Luther King- ‘The arc of moral universe bends more towards a reformative version of justice rather than a retributive one’
• A huge number of Under trial prisoners: Due to inordinate delays, our prisons are filled with under trials whose dignified life is compromised at the expense of a slow and bureaucratic system. It also puts unwanted strain on the state’s resources
• Lack of Transparency in Functioning: Judiciary is inwardly secretive in appointments and promotion of judges facilitated mainly through the collegium system. It must describe the criteria and reasons for appointments or promotions so that it gains the faith of the common public in the justice system.

Death Penalty

                India is one of the few states along with Iran, Saudi Arabia, China and U.S to continue using the death penalty for the rarest of rare cases.

Why it must go?

• Violation of Article 21: Death penalty explicitly takes away the fundamental right to life enshrined under Article 21 of the constitution.
• Retributive Rather than Reformative: Death penalty is a reflection of the retributive justice system of the country which fails on the task of reformation even before attempting to do so.
• Does not facilitate deterrence: Countries that have done away with capital punishment have lesser rates of crime as opposed to India. Thus death penalty has not enhanced deterrence to committing heinous crimes.
• Personal Bias: The application of the ‘rarest of the rare’ doctrine is subject to personal bias of the adjudicating judges and undermines legitimacy of death penalty.

Socio-Economic Justice

PILs

                Public Interest Litigations (PILs) are instrument which enables public spirited individuals to approach court for justice on behalf of other individuals who themselves are unable to approach the judiciary due to poverty, illiteracy, discrimination and ignorance.

Constitutional Backing

• PILs are in consonance with Article 39A which aims to provide legal aid to poor and enhancing access to judiciary bridging socio-economic barriers
• Provides further impetus to right to equality, right to dignified life under Article 21 of the Indian constitution
• Article 14: Realise equality before law and equal protection of law
• Article 32 empowers citizens to approach courts for enforcement of fundamental rights in cases where they are violated by the state. PILs enhance accessibility of aggrieved citizens to enforce their claims against state
• Effective Access to Justice has been identified as a part of the basic structure of the constitution

Historical Aspects

                PILs were defined and elucidated by SC in the State of Uttaranchal vs Balwant Singh Chaufal. PILs are manifestations of judicial activism which aims to widen judicial access to citizens and bridge the existing socio-economic and educational barriers in securing justice.

Why PILs?

• Increased accessibility to Justice: PILs eliminate the need for aggrieved parties themselves to approach courts. Hence it improves accessibility to justice through instruments of CSOs, NGOs and other interested stakeholders
• Weapon in Despotic and Authoritarian state: Improved accessibility to justice strengthen claims of citizens against the state. It acts as a check on authoritarian and despotic actions of state by arming citizens with easy access to justice
  • Hussainara Khatoon v State of Bihar: Court ordered immediate release of under trial prisoners who were detained for more than maximum limit and expeditious settling of case
• Cleaning the Political System: In the Public Foundations PIL and the PIL seeking life ban on convicts, the court responded by asking executive to set up fast track courts and prioritize completion of cases involving crimes of heinous nature
• Socio-Economic Justice: PILs help in realising socio-economic justice (consonance with DPSP Article 39A of legal aid) as they have functioned as effective instruments for changes in society or social welfare
  • Evolution of Visakha guidelines in lieu of PIL filed in Visakha vs State of Rajasthan Visakha guidelines would later lead to legislation Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013
  • Conceptualization of the Mid-day meal scheme on the PIL of People’s Union of Civil Liberties
• Holding Public Interest at Large: PILs enable the realisation of larger public interest that are often marred or in conflict with selfish interest of the influential and powerful minority.
  • Mehta vs Union of India: The court on receipt of a PIL passed several orders against polluting industries shutting down several of them in the Ganga basin. The community residing in the near vicinity escaped air and water pollution as a result of the same
• Greater realisation of fundamental rights guaranteed under Article 14, 21 and 32
  • Kesav Suri vs Union of India: SC struck down Section 377 that criminalized consensual sex between same sex individuals liberating LGBT community and realising equality, dignity and privacy guaranteed by the Articles 14,15,21