Judiciary and related issues | Timeline

Supreme Court of India has delivered judgment on many important matters like Decriminalizing homosexuality, the Right to privacy a fundamental right, etc.

But still, many significant cases are pending for the final judgment. This has serious repercussions on the fundamental rights of citizens and core republic values.

It is to be noted that Right to speedy justice is a part of the Right to life under Article 21 of the Constitution of India.

• Pendency of cases 

“A case for a more federal judiciary” – The Hindu – 17th Feb 2022

The delicate balance between High Courts and the Supreme Court (SC) is tilting in favour of the SC. There is a need to balance the power between High Courts and the Supreme Court.

What are the instances, where the SC overpowered High Courts?

In recent years, the erosion of power of the High Court was witnessed.

First, the collegium system, consists of SC’s judges, has the power to appoint and transfer judges and chief justices to the High Courts and the Supreme Court.

Second, successive governments have passed laws to create parallel judicial systems of courts and tribunals which bypass the High Courts. For example, Competition Commission and company law tribunals. Also, laws have been drafted such that the Supreme Court directly acts as an appellate court.

Third, SC is intervening in matters which are clearly of local importance and have no constitutional ramifications. For instance, in 2018, petition in the Supreme Court to curtail Deepavali celebrations and the court entertained the writ petition and issued directions.

The Supreme Court entertaining PILs, which could have been effectively dealt with by the High Court, sends the message that there is no need to go to HC, cases can be directly filed in the SC.

How the Indian judiciary is envisaged by the Indian constitution?

One, Dr. B.R. Ambedkar stated in the Constituent Assembly that the Indian Federation has a dual polity but has no dual judiciary at all. The High Courts and the Supreme Court form one single integrated judiciary and provide remedies in all cases arising under constitutional law, civil law, or criminal law.

Two, the Indian Constitution envisaged the equality of power of High Court judges and Supreme Court judges. For instance, the Chief Justice of the Madras High Court, Justice P.V. Rajamannar rejected the seat in newly formed Supreme Court and preferred to be Chief Justices of the prestigious High Court.

Three, on many occasions the Supreme Court has reiterated that it is superior to the High Court only in the appellate sense.

Why there is a need to strengthen the federal nature of the judiciary?

First, a robust federal judicial system is a basic requirement for a federal State which interprets the constitution. It adjudicates upon the rights of the federal units and the central unit, and between the citizen and these units.

Second, the need for this balance was underscored during the Emergency, when the High Courts stood out as beacons of freedom.

Third, empirical research in the USA shows that judicial review by a centralized judiciary tends toward unitarism. In Nigeria, research has shown that the Supreme Court has favored interpretations that support the rights of the center over the States.

What is the way forward?

The weakening of the state units sets off a weakening of the entire body of the state. Hence, the Supreme Court should recognize this and restore the federal balance by re-empowering the High Courts.

Laws in India are still drafted in the same pattern as was done in the colonial era. They still involve over usage of Latin words and very long sentences.

Why is there a use of dense language in legal documents?

“Why we ought to replace legalese with plain language” – Livemint – 9th Feb 22

The justification given is that it is the only way to ensure that every possible consequence is adequately addressed.

Lawyers do this to prevent their clients’ suffering if things are left unsaid actually become a problem.

Similarly they are used in judgement to make them effectively counter any doubts that emerge.

Impact of using complex language in legal documents

What are the consequences of using complex language for laws?

“Why we ought to replace legalese with plain language” – Livemint – 9th Feb 22

In a world that has increasingly prioritized the democratization of access, this stops citizens to become a part of policymaking.

“Write laws for Bharat” – Times of India – 7th Jan 22

This makes them understandable only by lawyers and experts, and ordinary citizens are unable to even comprehend them.

– They are inaccessible. One of the reasons which also makes laws inaccessible is the long judgements.

For instance: The judgement of seven judges of the Supreme Court in Champakam Dorairajan’s case (the first judgment on the constitutionality of reservation in medical and engineering colleges) was of mere 4 pages.

In comparison, the judgement of nine judges of the Supreme Court in Indra Sawhney’s case in 1992 on the constitutionality of OBC reservation was of 556 pages.

This is not because the issue was significantly more complex than in Champakam. It is primarily because, over the decades, little to no efforts were made to keep judgements shorter.

What is the situation in other countries?

A number of countries have enacted legislations that impose plain-language obligations on government functionaries, requiring them to communicate in words that can be easily understood.

In the US, the Plain Writing Act of 2010 requires federal government agencies to promote clear Government communication that the public can understand and use.

What is the way forward?

“Why we ought to replace legalese with plain language” – Livemint – 9th Feb 22

Apart from simplifying the language of our laws, government needs to follow some additional measures as well.

• All government departments should be required to publish on their websites a complete list of all laws, rules and regulations that apply to those over whom they have authority, and only enforce those laws. This will prevent any misapplication of any fine on citizens.
• Efforts should be made to consolidate all these regulations into a single, easy-to-understand code that presents a comprehensive snapshot of all applicable regulations. Reserve bank of India do this for its circulars.
• Along with every law that is enforced, the government should publish an official note that describes, in plain language, what that law covers, who it applies to, and the obligations they are required to meet.
• Government Should only collect new information from regulated entities to reduce the burden of compliance.

“Write laws for Bharat” – Times of India – 7th Jan 22

• Laws should be SARAL– simple, actionable, reasoned and accessible.
• Law should be in very simple language, capable of easy, automated translation and summary into any language spoken in India.
• Making laws actionable means that they should have necessary teeth to make them meaningful.
• Reasoned laws mean that they are based on evidence and data rather than guesswork
• Laws should be accessible. For example: They should be machine-readable and visually impaired friendly.
• Judgements over the years have become long due to unedited quoting of case law, quoting foreign law unnecessarily, copy-pasted reproduction of arguments made by lawyers. This should be discouraged.
• Laws should be drafted in plain English. Long judgement with wide use of Latin words is an approach derived from the United Kingdom, which has itself switched to drafting laws in plain English so that its citizens understand them.

[Sealed Cover Jurisprudence is appalling – The Hindu – 8th Mar 2022]

License of MediaOne a television channel in Kerala was cancelled by the Ministry of Information and Broadcasting on the grounds of national security. Subsequently, the State High court also dismissed its appeal plea. However, the reasons for invoking national security were not disclosed.

How this particular incident infringes upon several Fundamental Rights?

It compromises right to freedom of speech and expression of the television channel.

The rights to association, occupation and business are also impacted.

Moreover, the viewers also have a right to receive ideas and information that gets compromised.

The most disturbing part of the incident is that state need not even show that its security is threatened.

What earlier supreme court judgements have said on the issue?

It is paramount to ensure that the test of reasonable restrictions is satisfied as it is the bedrock of judicial review.

The Supreme court adopted the proportionality test in the Modern Dental College vs State of Madhya Pradesh (2016) case and reiterated it in the K.S. Puttaswamy vs Union of India (2017) case.

When an action is alleged to have curtailed fundamental rights, the court is bound to examine the legality of the action through the lens of proportionality.

This act of executive to not disclose the reasons of using the national security clause even to the other party concerned(here the broadcaster) is opposed to the principles of natural justice.

How the current High court judgement stands in contradiction to prev SC judgements?

First, there was no examination of the national security plea based on the well established proportionality analysis.

Second, as per a three-judge Bench in the Pegasus case (Manohar Lal Sharma vs Union of India, 2021) the state does not get a “free pass every time the spectre of ‘national security’ is raised”.

“Appeal for change: SC’s suggestion on reducing jail time for those appealing convictions is worth serious thought” – Times of India – 11th Feb 22

Long waiting periods to hear appeals: Many trial court convictions are pending before High Courts. For instance, waiting periods for hearing an appeal could be as long as 35 years.

What can be done?

• The Supreme Court has suggested plea-bargaining, which is used regularly in the USA, to speed up the judicial process.
  Speedy judicial appointments: 411 of 1,098 sanctioned judicial posts at HCs lie vacant. For instance, Allahabad HC, flooded by appeals, has 67 vacancies. This needs to be filled quickly.
• Increase the retirement age of HC judges: HC judges retire at 62 while SC judges continue till 65. There is no rationale behind this difference. When the retirement date of every judge is known in advance, the replacement lists should be ready beforehand. Article 224A provides for retired judges to be reappointed to HCs.

“What three recent cases say about our labyrinthine legal system” – Indian Express – 10th Feb 22

Archaic Laws: Recently, the Supreme Court has ruled that daughters will have equal rights to their father’s property even prior to the enactment of the Hindu Succession Act (HSA) of 1956. Although, the judgement is welcome but the case should have been settled much earlier. Indian constitution is certainly lacking a proper framework for personal laws for the 21st century.

Long-running cases: Court recently acquitted an actress from obscenity and indecency charges from the case which was registered under the Indecent Representation of Women (Prohibition) Act and Sections 292, 293, and 294 of IPC (Indian Penal Code) in 2007.

The case took 15 years to decide. The courts should be more cautious about the case which need to be admitted in courts if admitted has to be resolved quickly.

Incomprehensible language: Recently, two judges of the SC couldn’t understand a judgement authored by another judge in 2017.

Contempt of Court: Contempt of court act 1971 deals with civil contempt when a court judgement does not comply. It also deals with criminal content which scandalizes or lowers the authority of the court. Scandalising” is neither contempt by interference, nor contempt by disobedience. This was inherited from Britain. In 2013, after the Law Commission report (2012), the UK crime and courts act was abolished scandalizing the court as a form of contempt of court.