Case BriefsHigh Courts

Manipur High Court: A Division Bench of Lanusungkum Jamir and Kh. Nobin Singh, JJ., initiated contempt proceedings, wherein Additional Superintendent of Police is stated to have posted derogatory, defamatory and contemptuous post in her face book account against the Special Judge (ND&PS) in particular and against the Judiciary in general.

Bench had posed three questions to respondent 1 (Th. Brinda, MPS presently serving as Additional Superintendent of Police), Head Quarter, which were as follows:

a) Whether she has threatened the witness in the Court of the learned Special Judge, ND&PS on 21-05-2020.

b) Whether she showed her middle finger to the learned Special Judge, ND&PS on 21-05-2020.

c) Whether she has posted derogatory, defamatory and contemptuous post in her face book account against the Special Judge (ND&PS) in particular and against the Judiciary in general.

Further, the Court considered the the letter written by Superintendent of Police (CID-CB) and addressed to the Registrar General, High Court of Manipur giving the details of 20 (twenty) facebook account holders who have been tentatively identified based on the publicly available information and photos posted in their facebook.

Notice has been issued by the Court.

Respondent 2 was also directed to continue collecting and verifying details of persons who keep on uploading posts scandalizing the Judiciary in connection with the present case.

Matter to be listed on 17th June, 2020. [In Re-Criminal Contempt against Thounaojam Brinda v. Thounaojam Brinda, MPS,  2020 SCC OnLine Mani 113 , decided on 10-06-2020]

Op EdsOP. ED.

Necessity may be the mother of invention, but technology is its midwife. The Supreme Court of India’s use of videoconferencing, to take up urgent matters while regular hearings stand suspended in all courts during the lockdown period, has the potential to accelerate the pace at which technology could be adopted by the judiciary at all levels.

India, with its large population and multiple problems such as judicial delays, pendency and lack of access to the justice system, is uniquely positioned to spearhead the adoption of technology in decongesting its courts, physically as well as in terms of case load.

At a time when social distancing is being emphasised as the only way to slow down the spread of COVID-19, the spectre of crowded court premises continues to haunt litigants, lawyers and Judges alike. This is an apt moment to partially explore, experiment and adopt the viability of electronic courts.

The Supreme Court Bench on 6-4-2020 [1]  comprising of S.A. Bobde, C.J., D.Y. Chandrachud and L. Nageshwara Rao, JJ.  passed directions in a suo motu case pertaining to issuing of guidelines for the functioning of courts via videoconferencing during the COVID-19 lockdown and further stated the need for applying tech-friendly and viable options, lasting the tenure of the lockdown and for the future.

e-Courts to e-Litigation: Taking a cue from ODR

The e-Courts Project [2] was an early step. It laid the groundwork in terms of networking of courts, digitisation of records and provision of information to litigants and lawyers. In fact, the Objectives Accomplishment Report of Phase II of the           e-Courts Project [3] reveals that the goal of setting up videoconferencing facilities for all the courts with jails has already been achieved.  However, while the e-Courts Project makes a good beginning with case information systems, the need is to move towards comprehensive dispute resolution process, with a blend of permanent benches of electronic courts and the physical courts.

World over, the experimentation has already commenced with what is more popularly known as the Online Dispute Resolution (‘ODR’). The ODR system, which includes e-negotiation, e-mediation and e-arbitration techniques, goes a step farther than the ADR system. ODR is mainly used in the resolution of cross-border electronic commerce disputes. However, ODR techniques can also be used in the resolution of traditional cross-border commercial disputes, if the parties agree in their contract to settle any dispute that may arise through one of the ODR techniques, particularly online arbitration. E-arbitration is mainly used for the resolution of Business to Business (‘B2B’) cross-border e-commerce disputes, and partially used for the resolution of traditional cross-border commercial disputes.

National laws regulating arbitration in many civil law countries have broadened the form requirement of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 [4] (‘the New York Convention’). These include Germany, France, Austria, Slovenia, Greece, The Netherlands, Ukraine, and Switzerland. Under the laws of these countries, the form requirement includes electronic communications such as e-mail communications.

Types of Cases

Incremental steps, and not a giant leap will take the system to the desired end i.e. a situation where most types of cases can be litigated online stipulating a pecuniary jurisdiction. This is a situation where documents and written submissions may be filed digitally while oral arguments and witness examination may be carried out remotely via video conferencing, with the need for physical court visits to be maintained on matters of importance.

E-commerce transactions and relationships generate disputes, and this has translated into an unprecedented “growth industry” of disputes. In recent decades, global companies have handled disputes involving domain names which have been resolved through an online arbitration process. India has the potential of a larger growth industry of disputes in the 2020s because the new technologies have made possible huge numbers of transactions and relationships across the board.

For this, the low hanging fruits to be plucked are those cases which are document heavy. Civil cases and commercial dispute resolution offer an ideal starting point.

Hearings in court would take place only when necessary and proportionate. It would be useful eventually to have a blend of e-court rooms and the physical courts to make progress and deliver justice to all sections of the society.  No doubt there would be teething problems initially like everything else, but in the long term there lies a great opportunity and solution.

Videoconferencing also offers a secure and convenient way of obtaining evidence from vulnerable or intimidated witnesses. India is not known for witness protection programmes and effective whistleblower protection. There is an immense scope to scale up videoconferencing in cases involving vulnerable witnesses.

So far, so good

A beginning has already been made. Several High Courts in India have issued detailed guidelines on the use of videoconferencing.

The Videoconferencing Guidelines issued by the Himachal Pradesh High Court[5] note that “Videoconferencing facilities can be used in matters including remands, bail applications and in civil and criminal trials, where a witness is located intra-State, inter-State or overseas.

The Videoconferencing Guidelines issued by the High Court of Delhi[6] state that “Videoconferencing facilities provide courts in Delhi with the capacity to receive evidence and submissions from witnesses or persons involved in court proceedings in circumstances where it would be expensive, inconvenient or otherwise not desirable for a person to attend a court in person. An overriding factor is that the use of videoconferencing in any particular case must be consistent with furthering the interests of justice and should cause minimal disadvantage to the parties. However, it is for the court to decide whether evidence should be recorded by videoconferencing.

Videoconferencing has been internationally recognised as a useful tool for obtaining witness testimony and expert evidence in cross-border as well as domestic cases. This could be an opportune time to explore the opportunity of bringing the mainstream litigation and regularise appearances and arguments by lawyers via videoconferencing. No doubt, an expert committee would need to be constituted to examine the feasibility. Needless to say, this will have significant time and cost benefits for all parties involved.

Role of the Private Sector

There is a big opportunity for private enterprises to assist in this process. A Public Private Partnership (PPP) Model suggests itself. This model was effectively used to revamp the Passport Issuance System in India, where TCS established Passport Seva Kendras in multiple cities in India. On similar lines, eLitigation nodal centres may have to be established at the panchayat level and district level to facilitate filing, appearance and related activities.

Increasing Access to Justice

One criticism of the Indian judicial system has been that litigation is only for the rich. The Supreme Court being located in New Delhi, a poor litigant based in a remote corner of India may be disincentivised to avail of the appellate process in even the High Court of a large State, let alone the Supreme Court. In fact, the idea of a National Court of Appeals, with Benches in various parts of India was mooted to address this issue, alongside the equally important issue of relieving the Supreme Court of the burden of dealing with those cases which do not involve an interpretation of the Constitution.

By introducing, in a phased manner, filing and appearance via videoconferencing at all levels of the judicial system, from trial courts to the Supreme Court, as also in various tribunals, the costs associated with physical distance from a court may be greatly reduced. We need to move beyond e-filing and uploading of orders online, to making courts accessible, affordable and visits reduced, for lawyer and litigant alike. This would also provide opportunities for younger members of the Bar. A category of matters would also need to be identified and explored.

The Challenges

The process is not going to be easy. There are several issues to be addressed. Firstly, the requisite network infrastructure has to be put in place across the country. Issues of bandwidth have to be taken care of.

Secondly, the process has to be secured from outside interference of any sort. This has to be balanced with the need for public access to the proceedings, keeping in view the idea of open court. In fact, it is an opportunity to open up court proceedings to a far wider section of the interested public than the limited confines of a courtroom may allow.

Thirdly and most importantly, there will have to be a change in mindsets of litigants, lawyers, Judges and the public. A status quoist mindset will run the risk of overemphasising threats and weaknesses of e-litigation. There was a time in 2013 when lawyers expressed strong reservations against e-causelists[7], citing lack of computer literacy. A change in attitude may be brought about by Bar Associations as well as legal aid clinics, which can spread the message among lawyers and the public respectively. Legal education curriculum may be suitably moulded to ensure that law students graduating in the new decade are equipped for a legal profession that sees increasing use of e-filing and videoconferencing.

Judicial academies too, have a huge role to play in equipping newly appointed Magistrates of the lower judiciary with the requisite skills. The judiciary would need to adapt to the changes which COVID-19 is going to bring into the society with greater speed and flexibility rather a conservative approach.

Conclusion

Even the biggest technological advances will not be effective without addressing the fundamental issues that plague the judicial system. Filling up of vacancies in all the courts as well as increasing the sanctioned strength of Judges is essential. India presently has 20 Judges for every 1 million citizens. The Law Commission of India in its 120th Report[8], suggested that there should be at least 50 Judges per 1 million citizens. The good news is that a technology enabled judiciary will require less brick and mortar infrastructure for expansion.

COVID-19 is presently a grave threat to the human race. It will force the society, governments and countries to change the ways in which work as well as leisure is undertaken. The silver lining is that adopting technology for dispute resolution in an online format, will lead to significant saving in cost and time for parties.


*Kirit Javali, (Barrister) Advocate Supreme Court, Partner at Jafa & Javali, Advocates, New Delhi.

**Vivek Prasad (final year student of law) Campus Law Centre, University of Delhi.

[1]. In re, Guidelines for Court functioning through videoconferencing during Covid-19 pandemic, 2020 SCC OnLine SC 355.

[2]. eCourts Project, https://ecourts.gov.in/ecourts_home/static/about-us.php.

[3]. Ibid.

[4]. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, https://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/New-York-Convention-E.pdf

[5]. Videoconferencing Guidelines issued by the High Court of Himachal Pradesh, https://hphighcourt.nic.in/pdf/VC%20_Guidelines_HP_HC.pdf

[6]. Videoconferencing Guidelines issued by the High Court of Delhi, http://delhihighcourt.nic.in/writereaddata/Upload/PublicNotices/PublicNotice_CQ84SWB5.PDF

[7]. The Hindu, ‘Can we think of e-courts if lawyers aren’t ready for even e-cause list?’ dt. 6-4-2013, https://www.thehindu.com/news/national/karnataka/can-we-think-of-ecourts-if-lawyers-arent-ready-for-even-ecause-list/article4585515.ece

[8]. Law Commission of India, 120th Report on Manpower Planning in Judiciary: A Blueprint (July, 1987).


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Case BriefsSupreme Court

Supreme Court: A 3-judge bench of Arun Mishra, Vineet Saran and S. Ravindra Bhat, JJ has held that members of the judicial service of any State cannot claim to be appointed for vacancies in the cadre of District Judge, in the quota earmarked for appointment from amongst eligible Advocates, under Article 233.

The Court was hearing a reference from a case wherein the petitioners who are in judicial service, had claimed that in case before joining judicial service a candidate has completed 7 years of practice as an advocate, he/she shall be eligible to stake claim as against the direct recruitment quota from the Bar notwithstanding that on the date of application/appointment, he or she is in judicial service of the Union or State.

Rejecting the contention of the petitioners, the Court held,

“Though the appointment is made under Article 233(1), but the source and the channel for judicial officers is the promotion, and for the members of the Bar is by direct recruitment.”

The Court told the petitioners that it was open to them not to join the subordinate services. They could have staked a claim by continuing to be an advocate to the Higher Judicial Service as against the post of District Judge. However, once they chose to be in service, if they had seven years’ experience at Bar before joining the judicial service, they are disentitled to lay a claim to the 25% quota exclusively earmarked for Advocates; having regard to the dichotomy of different streams and separate quota for recruitment.

“The recruitment from the Bar also has a purpose behind it. The practicing advocates are recruited not only in the higher judiciary but in the High Court and Supreme Court as well. There is a stream (of appointment) for in­service candidates of higher judiciary in the High Court and another stream clearly earmarked for the Bar. The members of the Bar also become experts in their field and gain expertise and have the  experience of appearing in various  courts.”

Justice Mishra, writing for himself and Justice Saran, hence, held:

  • The members in the judicial service of the State can be appointed as District Judges by way of promotion or limited competitive examination.
  • The Governor of a State is the  authority for the purpose of appointment, promotion, posting and transfer, the eligibility is governed by the Rules framed under Articles 234 and 235.
  • Under Article 232(2), an Advocate or a pleader with 7 years of practice can be appointed as District Judge by way of direct recruitment in case he is not already in the judicial service of the Union or a State.
  • For the purpose of Article 233(2), an Advocate has to be continuing in practice for not less than 7 years as on the cut­-off date and at the time of appointment as District Judge. Members of judicial service having 7 years’ experience of practice before they have joined the service or having combined experience of 7 years as lawyer and member of judiciary, are not eligible to apply for direct recruitment as a District Judge.
  • The rules framed by the High Court prohibiting judicial service officers from staking claim to the post of District Judge against the posts reserved for Advocates by way of direct recruitment, cannot be said to be ultra vires and are in conformity with Articles 14, 16 and 233 of the Constitution of India.

Writing down a separate but concurrent view, Justice Bhat also held that under Article 233, a judicial officer, regardless of her or his previous experience as an Advocate with seven years’ practice cannot apply, and compete for appointment to any vacancy in the post of 30 District Judge; her or his chance to occupy that post would be through promotion, in accordance with Rules framed under Article 234 and proviso to Article 309 of the Constitution of India.

Stating that the Constitution makers envisaged that at every rung of the judicial system, a component of direct appointment from members of the Bar should be resorted to, Justice Bhat said,

“The Constitution makers, in the opinion of this court, consciously wished that members of the Bar, should be considered for appointment at all three levels, i.e. as District judges, High Courts and this court. This was because counsel practising in the law courts have a direct link with the people who need their services; their views about the functioning of the courts, is a constant dynamic.”

The Court also overruled the decision in Vijay Kumar Mishra v. High Court of Judicature at Patna,(2016) 9 SCC 313 providing eligibility, of judicial officer to compete as against the post of District Judge by way of direct recruitment.

[Dheeraj Mor v. High Court of Delhi, 2020 SCC OnLine SC 213, decided on 19.02.2020]

Case BriefsHigh Courts

Calcutta High Court: Sabyasachi Bhattacharya, J. directed a case concerning the arrest of a freelance journalist to be listed for hearing in January, 2020 and also directed the respondents to file their affidavit(s)-in-opposition withe thin a fortnight from date. It also directed the concerned government officials to preserve and secure the entire CCTV footage of the Khardah police station of the concerned date.

In the present case, the appellant a spokesperson for the opposition party is a journalist who runs two vernacular newspapers and YouTube channels. It is alleged by the petitioner that he was forcibly whisked away by the police on 17-10-2019. When asked, the police replied that he had been arrested for a cyber crime case in Purulia District Cyber Crime Police Station. The petitioner contended that due to his exposure to corruption in political quarters, he has earned the wrath of the ruling party and therefore his arrest is on baseless allegations.

The counsel appearing for the petitioner argued that under the sections he was booked the police cannot initiate an investigation on their own, until an order of a competent Magistrate. Placing reliance on the Arnesh Kumar v. State of Bihar(2014) 8 SCC 273 it was contended by the petitioner that in the said judgment it was remarked by the Supreme Court that a notice of appearance in terms of Section 41A of the Code of Criminal Procedure, 1973 has to be served on the accused within two weeks but he was not served the same. The counsel then contended that as an interim measure it should be stayed on.

The counsels for the respondent State argued that the investigation is still at a nascent stage and ought not to be stayed at this premature juncture. It was argued that there were several safeguards available to the petitioner under the CrPC, all of which provide sufficient relief to the petitioner even at the stage of further investigation.

The Court opined that it is not clear at all as to how the criticism of the State Government or a Member of Parliament could be deemed to be the publication of a statement likely to cause fear or alarm to the public at all. The court continued that the people always have a right to criticize the Government or the Executive and even the Judiciary and the Legislature are not exempt from fair criticism. That is what the freedom of speech and expression, as enshrined in the Constitution, is all about, the Court continued. 

In this regard, the Court also observed that “there is a common misconception of identifying the ‘State’ with the ‘Government’. This may be a fallout of the failure of the Indian polity to implement the Constitutional vision as to separation of powers between the three wings of the Government, in particular among the Legislature and the Executive.”

The Court remarked that these allegations were baseless on the face of it and were not even maintainable against the petitioner in the context of the petitioner’s actions, on the basis of which such offences were alleged. But since counsel for both sides advanced detailed arguments even on the prayer for interim protection, the court listed this case for the month of January, and directed that the said complaint and the FIR shall remain stayed till disposal of the writ petition. [Sanmay Banerjee v. State of West Bengal, 2019 SCC OnLine Cal 3941, decided on 03-12-2019]

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: In yet another historic verdict, the 5-judge constitution Bench of Ranjan Gogoi, CJ and NV Ramana, Dr. DY Chandrachud, Deepak Gupta and Sanjiv Khanna, JJ has held that the office of the Chief Justice of India comes under the purview of the Right to Information. In the 250-pages long judgment, Justice Sanjiv Khanna wrote the mjority opinion for the Bench and Justices NV Ramana and DY Chandrachud gave separate but concurring opinion.

Majority Verdict penned by Sanjiv Khanna, J

“Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence.”

Section 8(1)(j) vis-à-vis Section 11 of the RTI Act

Section 8(1)(j) specifically refers to invasion of the right to privacy of an individual and excludes from disclosure information that would cause unwarranted invasion of privacy of such individual, unless the disclosure would satisfy the larger public interest test. This clause also draws a distinction in its treatment of personal information, whereby disclosure of such information is exempted if such information has no relation to public activity or interest.

On the relative scope of both the provisions, the Court said,

“the scope of ‘information’ under Section 11 is much broader than that of clause (j) to Section 8 (1), as it could include information that is personal as well as information that concerns the government and its working, among others, which relates to or is supplied by a third party and treated as confidential. Third-party could include any individual, natural or juristic entity including the public authority.”

Public Interest Test

The Court said that the public interest test in the context of the RTI Act would mean reflecting upon the object and purpose behind the right to information, the right to privacy and consequences of invasion, and breach of confidentiality and possible harm and injury that would be caused to the third party, with reference to a particular information and the person.

Some of the important aspects highlighted by the Court are as follows:

    • Public interest has no relationship and is not connected with the number of individuals adversely affected by the disclosure which may be small and insignificant in comparison to the substantial number of individuals wanting disclosure.
    • Public interest is not immutable and even time-gap may make a significant difference
    • The type and likelihood of harm to the public interest behind the exemption and public interest in disclosure would matter. The delicate balance requires identification of public interest behind each exemption and then cumulatively weighing the public interest in accepting or maintaining the exemption(s) to deny information in a particular case against the public interest in disclosure in that particular case.
    • ‘Motive’ and ‘purpose’ for making the request for information is irrelevant and being extraneous cannot be a ground for refusing the information. However, this is not to state that ‘motive’ and ‘purpose’ may not be relevant factor while applying the public interest test in case of qualified exemptions governed by the public interest test.

Judicial Independence

The independence of judiciary is not limited to judicial appointments to the Supreme Court and the High Courts, as it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It consists of many dimensions including fearlessness from other power centres, social, economic and political, freedom from prejudices acquired and nurtured by the class to which the judges belong and the like.

The Court said that it cannot be doubted and debated that the independence of the judiciary is a matter of ennobled public concern and directly relates to public welfare and would be one of the factors to be taken into account in weighing and applying the public interest test. Thus, when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion. It, however, said,

“we should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information. Independence in a given case may well demand openness and transparency by furnishing the information.”

The Court concluded by saying that in each case, the public interest test would be applied to weigh the scales and on balance determine whether information should be furnished or would be exempt. Therefore, a universal affirmative or negative answer is not possible. However, independence of judiciary is a matter of public interest.

Delhi High Court’s Judgment

The Court upheld the 2010 Delhi High Court verdict where it had directed the CPIO, Supreme Court of India to furnish information on the judges of the Supreme Court who had declared their assets. The Court said that such disclosure would not, in any way, impinge upon the personal information and right to privacy of the judges.

NV Ramana, J’s separate but concurring opinion

“Right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of judiciary.”

Stating that transparency cannot be allowed to run to its absolute, considering the fact that efficiency is equally important principle to be taken into fold, Justice Ramana talked about a 2-step process to ascertain whether the information should be disclosed. He laid down non-exhaustive lists of considerations that need to be considered while assessing both the steps

First Step: Whether information is private or not

  • The nature of information.
  • Impact on private life.
  • Improper conduct.
  • Criminality
  • Place where the activity occurred or the information was found.
  • Attributes of claimants such as being a public figure, a minor etc and their reputation.
  • Absence of consent.
  • Circumstances and purposes for which the information came into the hands of the publishers.
  • Effect on the claimant.
  • Intrusion’s nature and purpose

Second step: Whether the public interest justifies discloser of such information under Section 8(1)(j) of the RTI Act

  • Nature and content of the information
  • Consequences of non-disclosure; dangers and benefits to public
  • Type of confidential obligation.
  • Beliefs of the confidant; reasonable suspicion
  • Party to whom information is disclosed
  • Manner in which information acquired
  • Public and private interests
  • Freedom of expression and proportionality.

Chandrachud, J’s separate but concurring opinion

“To use judicial independence as a plea to refuse accountability is fallacious. Independence is secured by accountability. Transparency and scrutiny are instruments to secure accountability.”

Though Chandrachud, J noticed that to be independent a judge must have the ability to decide ‘without fear or favour, affection or ill will’ and that the Constitution creates conditions to secure the independence of judges by setting out provisions to govern appointments, tenure and conditions of service, he, however, said

“But constitutional design must be realised through the actual working of its functionaries. Mechanisms which facilitate independence are hence a crucial link in ensuring that constitutional design translates into the realisation of judicial independence. Facilitative mechanisms include those which promote transparency. For true judicial independence is not a shield to protect wrong doing but an instrument to secure the fulfilment of those constitutional values which an independent judiciary is tasked to achieve.”

He further said that the judiciary, like other institutions envisaged by the Constitution, is essentially a human institution. The independence of the judiciary was not envisaged to mean its insulation from the checks and balances that are inherent in the exercise of constitution power.

[Central Public Information Officer v. Subhash Chandra Agarwal, 2019 SCC OnLine SC 1459, decided on 13.11.2019]

Hot Off The PressNews

Supreme Court: Amid the ongoing controversy over the transfer of Madras High Court Chief Justice Vijaya K Tahilramani, the Supreme Court on Thursday virtually justified the decison and said that the transfers were made for cogent reasons and that the Collegium will not hesitate in disclosing the reasons behind such transfers. “Transfer was made for cogent reasons” and the Collegium will have “no hesitation in disclosing the reason for the transfer of judges if necessary“, the Secretary-General of the Supreme Court said in a statement.

The Court said that certain reports relating to recommendations recently made by the Collegium regarding the transfer of Chief Justices and Judges of the High Courts have appeared in the media.

“Each of the recommendations for transfer was made for cogent reasons after complying with the required procedure in the interest of better administration of justice. Though it would not be in the interest of the institution to disclose the reasons for transfer, if found necessary, the Collegium will have no hesitation in disclosing the same,”

The court also added that the recommendations were made after full and complete deliberations and the same was unanimously agreed upon by the Collegium.

Madras High Court Chief Justice Vijay K Tahilaramani had recently tendered her resignation after the SC Collegium rejected her request to withdraw its decision to transfer her to Meghalaya High Court sparking a controversy. The Supreme Court Collegium had on August 28 recommended the transfer of Justice Tahilramani to Meghalaya High Court.

The Collegium meeting held on September 3, consisting of Chief Justice Ranjan Gogoi, Justices SA Bobde, NV Ramana, Arun Mishra and Rohinton Nariman, rejected the representation made by Justice Tahilramani requesting to reconsider the transfer proposal, which was made on August 28. It had also transferred Chief Justice of Meghalaya High Court, Justice AK Mittal, to the Madras High Court. Justice Vivek Agarwal from the Madhya Pradesh High Court was transferred to the Allahabad High Court. It also transferred Justice Amit Rawal, Punjab & Haryana High Court to Kerala High Court.

(Source: ANI)

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and L. Nageswara Rao and Sanjiv Khanna, JJ has directed the short-term measures as suggested by the amicus curiae regarding funding for infrastructure of subordinate judiciary by the Central Government and the State Governments be implemented, while the Central Government responds to the suggestion on long-term measures till next date of hearing.

The Court, hence, directed:

  • the Central Government to release funds within two months to the extent Utilization Certificates have been sent by the respective State Governments and submit compliance report to this Court;
  • the State Government(s) to submit pending utilisation certificate(s) to the Central Government within four weeks and furnish information in the format annexed with the present order within a period of six weeks to this Court;
  • the Central Government may disburse the amounts and/or give response within two months of furnishing pending utilization certificates by the State Government and submit compliance report to this Court;
  • Copies of all reports submitted by the Central Government and the States/UTs to this Court would be simultaneously sent/furnished to Shri Vijay Hansaria, learned Amicus Curiaso so that in case of necessity, appropriate directions may be sought from this Court.

Senior Advocates Shyam Divan, K.V. Vishwanathan and Vijay Hansaria along with Advocate Gaurav Agrawal, were appointed as the amicus curiae.

The Court will next take up the matter on April 29, 2019.

[Malik Mazhar Sultan v. UP Public Service Commission, 2019 SCC OnLine SC 297, order dated 28.02.2019]

Case BriefsSupreme Court

Supreme Court: Terming the inadequacy of judges to be the root cause for the delay in disposal of cases resulting in huge backlog, the 3-Judge Bench of T.S. Thakur, CJ and Dr. D.Y. Chandrachud and L. Nageswara Rao, JJ said that until National Court Management Systems Committee (NCMSC) formulates a scientific method for determining the basis for computing the required judge strength of the district judiciary, the judge strength shall be computed for each state, in accordance with the prevailing ‘Unit system’ of the High Courts.

Under the ‘Unit system’, weightage is given to cases based on their nature and complexity. The High Courts have established disposal norms for the district judiciary based on units allocated for disposal of different cases. On the basis of the units prescribed, performance is rated from “excellent” and ‘very good’ to ‘unsatisfactory’. Earlier, the ‘rate of disposal method’ was being applied to resolve this issue. Under the Rate of Disposal Method, the Commission first looked at the current rate at which judges dispose of cases and how many additional judges working at a similar level of efficiency would be required so that the number of disposals equals the number of institutions in any one year time frame. However, the method was criticized on the ground that a lower rate of disposal may not necessarily reflect upon the efficiency with which a judge has conducted the court. Trials are held up because of a paucity of public prosecutors, absence of witnesses on dates fixed for trial, laxity of police in service of summons, etc.

The Court said that while prescribing units for disposal, a robust attempt must be made by the High Courts to ensure that due importance is given to the disposal of old cases. The units prescribed for disposal must provide adequate incentives to attend to complex and time consuming cases. It was also said that the District judges with long years of experience in the service are in a position to appreciate practical realities and to indicate the manner in which the unit system can be revised in each state to encourage judges at both the trial and the appellate level to take up those cases which consume judicial time and which should not be placed on the back-burner for fear that the judge will not be able to fulfill the units expected. The Chief Justices should initiate the process of revising unit based norms in relation to their states.

The Court further said that in prescribing the judge strength it is necessary to ensure that a backlog does not result in the future as a result of an increase in annual filings. One method of estimating the extent of the increase in future filings is to have regard to the increase reflected over a comparable period in the past for which data is available. Those figures can be extrapolated to determine the increase in annual filings. The enhancement in the strength of the district judiciary should be such that a ‘five plus zero’ pendency is achieved i.e. wiping out the backlog within a target period of five years.

The Court has requested the NCMSC to submit it’s final report by 31 December 2017. [Imtiyaz Ahmad v. State of U.P., 2017 SCC OnLine SC 7, decided on 02.01.2017]

 

Case BriefsSupreme Court

Supreme Court: Stating that the High Courts cannot encroach upon the fields that are under the exclusive domain of legislature, the Court said that there cannot be general comments on the investigation or for that matter, issuance of host of directions for constituting separate specialized cadre managed by officials or to require an affidavit to be filed whether sanctioned strength of police is adequate or not to maintain law and order or involvement of judicial officers or directions in the like manner.

In the present case, a writ of mandamous commanding the competent authorities to take necessary action against the respondent was filed before the Allahabad High Court in relation to alleged fraud in opening bank account by forging signature for obtaining retail licence for liquor shop for which eligibility conditions is that licensee and his family members must possess good moral character and have no criminal background, the High Court had adverted to the methods of investigation and expressed the view that no attempt was made by the investigating officer to find out the genuineness of signature from the hand-writing expert and had further observed that it depicts a very sorry state of affairs of maintenance of law and order in the State and paints a grim picture in which State is functioning, ignoring one of the most important aspects of administration, i.e., public safety, security and maintenance of law and order.

The bench of Dipak Misra and Amitava Roy, JJ noted that the High Court has crossed the boundaries of the controversy that was before it. The courts are required to exercise the power of judicial review regard being had to the controversy before it. There may be a laudable object in the mind but it must flow from the facts before it or there has to be a specific litigation before it.  It was further explained that a Judge should not perceive a situation in a generalised manner. He ought not to wear a pair of spectacles so that he can see what he intends to see. There has to be a set of facts to express an opinion and that too, within the parameters of law. A court cannot take steps for framing a policy.

Hence, it was held that the directions issued by the High Court and the queries made by it related to various spheres which, we are constrained to think, the High Court should not have gone into. It had a very limited lis before it. The directions may definitely show some anxiety on the part of the learned Judges, but it is to be remembered that directions are not issued solely out of concern. They have to be founded on certain legally justifiable principles that have roots in the laws of the country. [State of Uttar Pradesh v. Subhash Chandra Jaiswal, 2016 SCC OnLine SC 1434, decided on 29.11.2016]

Case BriefsSupreme Court

Supreme Court: In the PIL relating to lack of basic amenities in the Bandipora District Court affecting the proper functioning of Courts where the issue of regularization of employement by the High Court was in question the Court laid down the following principles:

  • Article 235 enables the High Court to exercise complete administrative control over the district judiciary which extends to all functionaries attached to those courts, including ministerial staff and employees on the establishment.
  • Employment in the High Courts or in the courts subordinate to them constitutes public employment.
  • The date on which the vacancies are likely to occur are foreseeable with a reasonable amount of clarity and precision.
  • While the High Court is an autonomous constitutional authority whose status cannot be undermined, it is equally necessary for it to strictly comply with the rules framed in making recruitments.

Explaining the concept of regularization, the Court said that it is not a source of recruitment nor is it intended to confer permanency upon appointments which have been made without following the due process envisaged by Articles 14 and 16 of the Constitution. Essentially a scheme for regularisation, in order to be held to be legally valid, must be one which is aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate administrative exigencies. In all such cases it may be left open to Courts to lift the veil to enquire whether the Scheme is aimed at achieving the above objective and is a genuine attempt at validating irregular appointments. The State and its instrumentalities cannot be permitted to use this window to validate illegal appointments. The second rider which must necessarily be placed is that the principle as formulated above is not meant to create or invest in a temporary or ad hoc Employee the right to seek a writ commanding the State to frame a scheme for regularisation.

The High Court of Jammu & Kashmir had, by order dated 01.12.2015, had observed that over a considerable period of time the state government had not created the required number of posts for the state judiciary as a result of which work has been hampered. According to the High Court, appointment of daily rated workers was necessitated to ensure that judicial work does not suffer. The High Court opined that these workers have been rendering work which should have been assigned to persons appointed on a regular basis against sanctioned posts.

The bench of T.S. Thakur, CJ and Dr. D.Y. Chandrachud and L. Nageswara Rao, JJ, noticing that the direction for regularization was issued by the High Court without considering the relevant constitutional and legal principles, said that it is unfortunate that the state government has allowed the requirements of the state judiciary to be neglected over such a long period of time. The need to facilitate the proper functioning of the High Court and the district judiciary is a constitutional necessity which imposes a non-negotiable obligation on the state government to create an adequate number of posts and to provide sufficient infrastructure. The state government is to blame for the unfortunate situation which has resulted in a large number of persons being recruited on a daily wage basis. [State of Jammu & Kashmir v. District Bar Association, Bandipora, 2016 SCC OnLine SC 1435, decided on 08.12.2016]

Case BriefsHigh Courts

Kerala High Court: Taking suo moto cognizance of the recent events, the Division Bench of Thottathil B. Radhakrishnan, Ag. C J. and Anu Sivaram J. directed State Government and State Police that no assembly or demonstration would be allowed in the court premises or on the roads surrounding them.

The Court held that access to justice is an indefeasible component of any society and it can in no manner be belittled by any individual or collective act, impairing or tending to impair the proper functioning of the Courts. Therefore, it is imperative that every seat of judiciary be insulated from any intrusion, as the intrusion would adversely affect the constitutional and societal goals to be achieved in an orderly society by the existence of judicial system. It was held that it is one of the primary duties of the Police wing of the State to maintain law and order and extend support by way of governance, in case where the access to justice is being challenged. The Police had public duty in terms of the Constitution and the statutes, to ensure that there is no impairment whatsoever in the conduct of court proceedings and the facilities for access to justice.

In the light of these observations, the Court directed the Government of Kerala, the State Police Chief and the Police officers under his command to ensure that no assembly or demonstration or collective expression of opinion is carried out within the premises of the High Court and also in the roads and streets surrounding them. It is directed that the restrictions imposed would extend to the use of public announcement system as well. All the restrictions imposed shall operate in regard of all road which surround the buildings of the High Court of Kerala and all leading roads to a distance of 200 meters from the roads that encircle the High Court buildings. The Court also directed that the gist of the order be published in at least two English newspapers and six vernacular dailies, having circulation throughout the State of Kerala. [Court on its own Motion v. State of Kerala, 2016 SCC OnLine Ker 10398, decided on 25 July, 2016.]

Case BriefsHigh Courts

Kerala High Court: Upbraiding the Judicial Magistrate who had remanded the petitioner to judicial custody contrary to its orders, in spite of having been granted pre-arrest bail under Section 438 of the Criminal Procedure Code, the Bench of Sudheendra Kumar, J.  held that once a pre-arrest bail was granted, the same would be in force until either the court or a higher court cancelled the order, on the instance of the Public Prosecutor, on the discovery of new material or circumstances, or of abuse of the indulgence by the accused.

The facts disclosed that the petitioner was arrested on 19.01.2016, and upon being produced the next day before the Judicial Magistrate, he produced the order under Section 438 passed by this Bench of the High Court. This was however disregarded by the Magistrate remanding the petitioner to judicial custody. The Court, upon being appraised of the remand of the petitioner and dismissal of his bail application, sought reasons from the Magistrate which were furnished albeit inadequate in the eyes of the Court. Further remonstrance from this Court led to an apology from the Magistrate.

The Court observed that judicial discipline is necessary for the existence of the judicial system. If judicial officers commit mistakes, the same will undermine the esteem of the judiciary. The judicial officers must be conscious about the importance of personal liberty vis-à-vis social interests and must be careful and diligent while discharging their duties.

The Court cited Jose George v. State of Kerala, 2006 (2) KLT 188, whereby it was held that grant of pre-arrest bail made it clear that the subject was not to be remanded to  judicial custody; Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, which held that the ordinary rule would be to not limit the operation of order under Section 438 CrPC, and allow its continuance to trial, and also that it was for the High Court or Court of Session to apply its mind in petitions for anticipatory bail under Section 438, not for the Judicial Magistrate under Section 43; and Siddharam Satlingappa Mhetre v. State of Maharashtra,  (2011) 1 SCC 694  whereby it was held the interim protection of anticipatory bail must be available till the end of trial unless it is cancelled by the court finding new material, circumstances, or on ‘ground of abuse of indulgence by the accused’. In deficit of any such circumstance, the bail application was allowed. [Nahif Ali v. Station House Officer, 2016 SCC OnLine Ker 5339, decided on March 1, 2016]