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From Lodha to Ramana

GS paper 2

Syllabus: Structure, organization and functioning of judiciary, appointment and removal of judges etc

 

Directions: Don’t focus on the contribution of individual Chief justices (unless you have law optional). Just notice the trend and evolution of the Indian Judiciary. Points from another related article in Indian Express by Fali S Nariman have been included in it.

Source: The Hindu

 

Context:

  • Over 75 years, the Indian Supreme Court has already had 49 Chief Justices.
    • Justice Y. Chandrachud, in the 1980s, had an exceptionally long tenure of over seven years, while at the other extreme, Justice K.N. Singh occupied the office for a mere 17 days.

 

Role of Judiciary:

  • Fundamental rights: Its primary responsibility is to ensure that the fundamental rights of citizens guaranteed under the Constitution are not diluted, or eroded by the state.

 

Judiciary manifest its superior nature through:

  • Kesavananda Bharati(1973): The Court assumed the power of judicial review over constitutional amendments.
  • Judicial appointments: It assumed the power of judicial appointments to itself and the High Courts.
  • Article 21: It expanded the fundamental right to life and liberty under Article 21 of the Constitution.
  • PIL: It ensures the right to approach courts through public interest litigation.

 

Powers of CJI besides normal judicial duties:

  • Appointment of judges: Selecting judges for appointment to the higher judiciary
  • Number and composition of benches: Deciding the number and composition of benches adjudicate on different kinds of cases

‘Doctrine of Basic Structure’ was propounded by the Indian Judiciary on 24th April 1973 in the Keshavananda Bharati case to put a limitation on the amending powers of the Parliament so that the ‘basic structure of the basic law of the land’ cannot be amended in the exercise of its ‘constituent power’ under the Constitution.

 

The decision constitutes a high watermark in the assertion of the Court’s judicial power in the teeth of a determined majoritarian regime. Much later, in 2007, a different Bench of nine judges in I.R. Coelho vs. State of Tamil Nadu, in a unanimous decision, authoritatively upheld the narrow majority view (of 7:6) in Kesavananda Bharati and gave it permanent constitutional validity.

Three periods:

From 1950 to 1971:

  • The Chief Justice had complete authority over judicial appointments
  • The recommendation of the Chief Justice would always be followed, even to the extent of powers of a veto.

Between 1971 and 1993:

  • Committed judges: The Executive insisted on appointing ‘committed judges’ to the Supreme Court.
  • Prerogative: The executive exercising prerogative in appointing Chief Justices.
  • The first judge’s case(1981): The opinion of the CJI would not be binding on the government.
  • Second Judges case(1993): Judiciary practically wrested the power of appointments back from the executive.

From 2014 to 2022:

  • Justice Lodha: He revived the dormant trend of direct appointments from the Bar to the Bench in the Supreme Court.
  • Justice H.L. Dattu: The fourth judge’s case, concerning the validity of the National Judicial Appointments Commission (NJAC) Act.
  • Justice T.S. Thakur: He set the National Judicial Data Grid rolling, which today connects all levels of the judicial system and provides a surfeit of information to litigants.
  • Justice J.S. Khehar:
    • Landmark judgments: including the Right to Privacy and Triple Talaq
    • Revived debates on the lack of transparency and fairness in managing the roster in the Supreme Court.
    • Conviction and subsequent imprisonment of a High Court judge.
  • Justice Dipak Misra:
    • Press conference: held by his four fellow judges, condemning the CJI’s internal administrative decisions.
    • Impeachment: motion was proceeded against him.
    • Constitutional benches: Set up the maximum number of constitutional benches as CJI.
  • Justice Ranjan Gogoi:
    • Sat in the hearing of a sexual harassment complaint made by an employee of the Supreme Court against himself.
    • Secrecy issues: Assam’s National Register of Citizens (NRC) matter, the Rafale dispute, the electoral bonds issue
    • Habeas corpus: petitions wake of the abrogation of Article 370.
    • Ayodhya dispute
  • Justice Sharad A. Bobde:
    • Preferential treatment to certain matters: for example, in the bail matters of journalists Siddique Kappan versus Arnab Goswami
    • Stayed the controversial farm laws.
    • Ad-hoc judges: Issuing guidelines on the appointment of ad-hoc judges to tackle judicial pendency
    • Standoff within the collegium(over the appointment of a judge to SC)
  • Justice N.V. Ramana:
    • Certain bail orders and stays (e.g., sedition)
    • Pegasus inquiry
    • The decision on the Prevention of Money Laundering Act.
    • Significantly large number of appointments in the higher judiciary, including appointing many women judges.
    • No constitutional Benches were formed.

The future:

Justice U.U. Lalit:

  • Taken initiatives in the formation of benches and certain initial orders that he has given, e.g., Kappan and Setalvad cases
  • Granting bail to individuals where the original indictment itself was without basis.

Conclusion:

  • A dynamic and thoughtful leadership: Supported by puisne judges, should be able to ensure that the challenges and responsibilities are met appropriately.
  • True custodian: Supreme Court should live up to hope of being the true custodian of the Constitution and protector of fundamental rights

 

Insta Links:

CJI

 

Mains Links:

Q. Critically examine the Supreme Court’s judgment on ‘National Judicial Appointments Commission Act, 2014’ with reference to the appointment of judges of higher judiciary in India. (UPSC 2017)

 

Prelims Links:

  • CJI
  • Appointment of CJI
  • National Judicial Data Grid rolling
  • Kesavananda Bharati(1973)
  • Article 21
  • First Judges case
  • Second Judges case
  • Third Judges case
  • NJAC

Other than the Fundamental Rights, which of the following parts of the Constitution of India reflect/reflect the principles and provisions of the Universal Declaration of Human Rights (1918)? (UPSC 2020)

    1. Preamble
    2. Directive Principles of State Policy
    3. Fundamental Duties

Select the correct answer using the code given below:

a. 1 and 2 only

b. 2 only

c. 1 and 3 only

d. 1, 2 and 3

Ans: (d)

Justification:

  • Article 3 of the Universal Declaration of Human Rights states that: Everyone has the right to life, liberty, and security of person.
    • The Preamble of India also speaks about “EQUALITY of status and of opportunity; assuring the dignity of the individual and the unity and integrity”.
  • Article 22 of UDHR asserts that economic, social and cultural rights are indispensable for human dignity and the development of the human personality.
    • Similar concepts are also present in the DPSP of the Indian Constitution.
  • Article 29 of the Universal Declaration of Human Rights mentions duties.
    • A similar concept was inserted in the Indian Constitution by the 42nd Constitutional Amendment Act, 1976 under Part IV-A of the Constitution (Article 51A).