Polity Class 29

REVISION OF EVOLUTION OF JUDICIARY 

• SC in Minerva Mills case stated that it had powers to review the imposition of national emergency and revoke the imposition of national emergency if it is on malafide intentions
• PHASE V- JUDICIAL ACTIVISM (1980 ONWARDS) 
• Why did judicial activism come into existence?
• Between 1947-1967, the same political party was ruling at the center as well as in states. It had so much credibility, however, it failed to fulfil the aspirations of people. 
• After 1967, they gave the opportunity to the opposition party to rule in states. In 1975, Indira Gandhi imposed a National emergency. After this in 1977, they voted for Janta Party. The Janta party government was a short-lived one. 
• In 1980, Congress was again in power as there is/was no alternative (TINA). By the 1980s, people were completely dissatisfied with the legislature and executive (Politicization of crime and criminalization of politics), which created a Legislative and executive vacuum. 
• There is no scope of vacuum in the political atmosphere and this space was filled by Judiciary through Judicial Activism. 
• What is Judicial activism?
• The judiciary will be proactive in fulfilling the aspirations of the people and in this process, the judiciary will enter into the domains of the legislative and executive. 
• Earlier there was separation of functions, through judicial activism, the judiciary has erased all these boundaries. 
• Difference between Judicial review and Judicial activism?
• Judicial review- It is a Reactive approach, i.e. interpreting the actions.
• Judicial activism- Judiciary is making the law and directs the executive about what they can do and not do. Judicial activism comes from judicial review. 
• Notes
• Judicial review is part of the constitution under Articles 13 and 32 & 226 of the Indian constitution, wherein the Judiciary has the power to review any decisions made by the legislature and implemented by the executive for their constitutional validity. Judicial review is mostly reactive in nature
• Judicial activism is Proactive in nature. It has come into existence due to the failure of the legislature and executive to fulfilling the aspirations of people due to inherent weaknesses in their functioning. It has forced the judiciary to fill in the vacuum created by the non-performance of legislature and executive, leading to Judicial legislation. 
• Judiciary has entered into the domains of both legislature and executive in a proactive manner. 

PERFORMANCE OF JUDICIARY 

• Between 1947-1980- Judiciary also failed 
• During this period, Judiciary worked on the principle of Locus Standi. [* Locus Standi- Whose rights are affected only those can approach the judiciary]
• Also, there is a very long process of justice, and also Justice is very costly. 
• Judiciary wanted to overcome these witnesses through the instrument called PIL. 
• 1982- Justice P N Bhagwati and Justice V R Krishna Iyer popularised the concept of PIL
• Instrument of PIL- It removed the principle of Locus Standi. Justice P N Bhagwati took a postcard and converted this into a Public Interest Litigation. This opened the floodgates of the PIL. 
• Journey of PIL- In the 1980s
• In the 1980s PIL mostly focused on protecting individual and political rights. 
• In 1982, the Asian Games were held in Delhi, to conduct the game, the government decided to construct Asiad Village. The workers/labourers were living in areas where basic amenities were not available. So a PIL was filed and SC instructed the government to provide these facilities. 
• Similarly, SC also gave judgment for the provision of basic facilities for Street vendors. 
• SC also gave judgment on the conditions of Prisoners to provide them with basic facilities otherwise they can approach under Habeas Corpus. 
• SC also gave judgment related to fake encounters. It said that Police and official do not enjoy sovereign immunity for their fake encounters. SC also has ruled that the State must pay compensation to the relatives of the victims. 
• Shriram Foods v/s UoI case- FRs of children. 
• In the 1990s
• The scope of PIL was further expanded, as this time coincides with the LPG reforms era
• PIL focused on the protection of workers from capitalists, and industrialists. 
• In the 1990s, the focus is on Cultural, Economic, and Social freedoms
• Protection of women at the workplace, Giving healthy conditions for workers, Protection of rights of Tribals, Protecting the rights of Children.  
• Globalization resulted in corruption so PIL focussed on containing the corruption also. 
• In the S R Bommai case, SC tried to fix the accountability of the state. 
• Indra Sawhney case, SC upheld the reservations to other backward sections. 
• Jain Hawala case, SC asked the executive to convert CVC into a statutory body. 
• SC struck down the single directive by the government of India.
• In Vishaka v/s state of Rajasthan, SC stated that these guidelines will be considered as Law. 
• By 2000s
• Floodgates of PIL were literally open. Especially from 2004 onwards, there are so many judgments of SC. 
• SC asked the Delhi government to introduce CNG in Delhi to reduce pollution. 
• The right to have safe drinking water became FR under Article 21
• Coal allocation case- SC cancelled all the coal allocations
• SC struck down the appointment of CVC as the government did not follow the Jain Hawala case. 
• SC struck down the Salwa Judum, as maintenance of law and order is the exclusive domain of the state and it can not be delegated. 
• SC also took action against the black money.  
• SC came out with the Jharkhand Assembly case where SC asked the speaker to conduct the floor test
• SC also came out with the Bihar assembly dissolution case and it repealed the emergency and revived the assembly. 
• SC also came out with a judgment and asked the Executive to explore the idea of interlinking rivers. 

MISUSE OF PIL 

• In 1999, A V Bajpayee government was defeated by 1 vote, and after that, PIL was filed for the trust vote again
• The right to have safe drinking water became FR but this can not be ensured with the limited resources. 
• SC also asked the executive to explore the idea of interlinking rivers, which is the exclusive domain of the executive. 
• Similarly, SC asked to impose UCC in states, which is the exclusive domain of the legislature. 
• From 1980-till now, the judiciary is trying to fix the accountability of the legislature and executive. 
• Weaknesses in the functioning of the Judiciary 
• a) Pending cases
• b) Judicial corruption 
• c) Appointment of judges 
• d) Colonial practices of our Judiciary 
• e) Absence of accountability mechanism
• f) Promotions, Transfer, and posting of Judges. 
• g) Inefficiency in the functioning of the Judiciary. 

WEAKNESSES OF JUDICIARY 

• 1. Pendency of cases
• Matters pending in SC are over 68000 and in 25 HCs backlog is over 59 lakh cases [* Source- Times of India, 28th June 2023- Editorial- Keep Judging]
• Overall 48 million cases or 4.8 cases are pending in the judiciary 
• It would take around 300 years for the judiciary to come out with a judgment provided that no net cases are filed
• 2. Judicial corruption 
• Judges are removed through the process of Impeachment and no judge has been impeached so far. 
• 3. Appointment of judges
• 
• SC struck doen the NJAC. 
• SC came out with an interim solution- a Memorandum of Procedure. 
• 4. Colonial Practices 
• These were introduced by Britishers
• Constitutional courts remain shut for around 47 days in the summer and around 20 days during winter. Vacations are a lineage of colonial rule, and they’ve been in use in the present-day judiciary also. 
• Judges are called "My Lords" which is also a Colonial practice. 
• 5. Absence of accountability mechanism
• Judges only have the knowledge of Law, but they lack expertise in Human rights, technological expertise, Women's issues, etc 
• In the last 75 years, Judiciary is facing the Uncle's Judge syndrome. Only 300 families have monopolized the judiciary. 
• The judiciary is also not representative in nature, members from SC/ STs are lacking, till now no Women CJI in SC. 
• Credibility of Judiciary- One of the CJIs was accused of sexual harassment, then a bench was constituted and he was a member of the bench, and in-camera proceedings were constituted. It was against the Principle of Natural Justice. 
• Executive Judiciary or Politicization of the judiciary is becoming popular. 
• Post-retirement postings are also questioning the credibility of the judiciary. 
• 6. Promotions, Transfer, and posting of Judges. 
• The CJI is known as the 'Master of the Roster. ' This is why he is regarded as 'first amongst equals in relation to companion judges.
• CJI has the prerogative to constitute the Benches of the Court and allocate cases to the benches so constituted. 

JUDICIAL REFORMS/ SOLUTIONS 

• 1. For the appointment of Judges 
• Judge: people ratio in India is very low. SC is overburdened. There is an urgent need to increase the strength
• India- 21 judges to a million population. 25% of them are vacant. [* Source- The economics times]
• The Law Commission and the Supreme Court recommended that India should have 50 judges per one million people
• Solution-
• Regional Benches of SC in different parts of India- South bench, North-east bench
• SC strength can also be increased to 50 or 100
• The judiciary must meet 180 days a year. 
• Appellate jurisdiction will be handled by the Regional benches. These benches can look into constitutional cases. 
• SC can be restricted to hear only the Constitutional cases and a Parallel court can be established to hear the HCs appeals and Writ jurisdiction. 
• Present CJI argument- SC is not getting even the 33 judges who are qualified to become SC judges. The most efficient lawyers are not becoming judges. A lawyer can continue his practice after 65 years also but the maximum retirement of the SC judge is 65 years. 
• Solution- All India Judicial services
• Judges' performance should be evaluated by the stakeholders- clients, NGOs, lawyers- Social audit committee. 
• To promote diversity, some positive discrimination can be incorporated. 
• Some positions can be reserved for professionals such as environment, Accounts etc
• Problem
• At the lowest level, the mode of recruitment is Vernacular also there is no reservation in Judiciary. [* Solution- Government can start more law colleges in other parts of India. Law profession should be made more attractive]

The Topic for the next class:- Judiciary and Center-state Relations.