A. Judicial Activism
• Judiciary plays an assertive role to force the other organs of the state to discharge their constitutional duties towards public
• Judicial activism basically has been forced upon the judiciary by insensitive & unresponsive administration that disregards the interest of the people, to ensure that administration of country does not suffer because of the negligence on the part of executive & the legislature
• Concept of Judicial activism emerged when SC started playing assertive role by giving some landmark judgments & issued some stern directives to legislature & executives concerned
• Phenomenon of judicial activism is welcome step only in short run & if it is carried out for long, it may destroy the very essence of separation of powers , with the judiciary assuming greater powers compared to legislature & executive in the absence of proper checks & balance mechanism.
B. Public interest litigation (PIL) – Appellate Jurisdiction
• Right to entertain PIL cases lies with Supreme Court and High Court only.
• A tool of judiciary to enforce legal & constitutional obligations towards executives & legislatures in interest of public at large.
• Basic aim of PIL is to render justice & help in promotion of well-being of public interest (not of individual’s interest -In individual’s case, writ petition for FR).
• Usually, relief provided by court is in form of directions or order of state including compensation to affected parties.
• A PIL may also be introduced in a court of law by the court itself (suo motu), rather than the aggrieved party or another third party. It is a result of judicial activism, not mentioned in constitution or any law enacted by Parliament.
C. Judicial Review
• Both Supreme Court & High Court enjoys the power of judicial review in India
• It is based on the concept of supremacy of the constitution
• Judicial Review means the power of the Supreme Court to examine the constitutionality of any law; so, if the Court arrives at the conclusion that the aforesaid law is inconsistent with the provisions of the Constitution, such a law is declared as unconstitutional and inapplicable.
• The Supreme Court (and the High Courts) has the power to check the Constitutional validity of any legislation or action of the executive, when it is challenged before them. This power is called judicial review.
• For any law or executive order to be valid, it must confirm to the provisions of the constitution.
• The chief instrument through which judicial activism has come into existence in India is Public Interest Litigation (PIL) or Social Action Litigation (SAL)
• When a case is filed not by aggrieved people, but rather on their behalf, someone else, as it involves a consideration of an issue of public interest, hence, it is known as Public Interest Litigation (PIL) or Social Action Litigation (SAL).
D. Procedure established by law (India) v/s Due process of Law (US)
Procedure established by law:
• The court examines a law only from the point of view of legislature’s competence
• Court sees that the prescribed procedure has been followed by the executive
• Court examines only procedural aspect not the motive behind the law or reason behind it, hence can not pronounce it unconstitutional unless the law is passed without the authorities competence
Due process of Law:
• Court can examine the law, not only from the point of view of legislature’s competence, but also from the aspect of motive behind the law
• Though constitution of India follows procedure established by the law, but in case of Maneka Gandhi case, SC interpreted Article 21 to include the expression of due process of law in it.
Hence, Article 21 protects an individual both against the legislature & executives action. However, it does not mean that due process of law has come in form under judicial review of India.
E. Prominent Doctrines associated with Supreme Court
1. Doctrine of Severability:
• While interpreting an impugned law, court has to see whether the law as a whole or some part of it is unconstitutional.
• Court can declare impugned law as a whole or some part of it unconstitutional as the case may be.
2. Doctrine of Progressive Interpretation:
• Court interpret the provisions of the constitution in the light of social, economic & legal conditions prevailing at that point of time.
3. Doctrine of Prospective Over-ruling:
• Judicial invalidation or new view of interpretation of law will not affect the past transactions or vested rights, but will be effective with regards to future transactions only.
4. Doctrine of Empirical Adjudication:
• While exercising the power of judicial review, courts are not supposed to deal with hypothetical cases; therefore it is essential that the matter bought before the court must be of concrete nature.
• Court seeks to confine its decisions, as far as possible; within the narrow limits of controversy b/w the parties concerned in particular case.
F. Presumption in favor of Constitutionality:
• Whenever the constitutional validity of a law is challenged, court will not hold it ultra vires until the invalidity is clear from all doubts which means there is always presumption by the court, in favour of law’s validity
• However, despite the extensive power of judicial review enjoyed by SC & HC, scope of judicial review in India is limited, as while interpreting a law, SC will not self-legislate
• SC is not supposed to question the reasonableness of any law except where the constitution has expressly authorised the court to exercise its power.
G. Lok Adalat (People’s court)
• Legal services authority act, 1987 gave Statuary status to Lok Adalats
• Alternative dispute resolution system developed in India – Works under NALSA
• To provide speedy & economic justice to weaker sections of the society
• Focus in Lok Adalat is on compromise, When no comprise is reached, matter goes back to the court
• No advocate, No witnesses examined, No court fee is levied.
• Resolves cases which have not yet gone to courts or are pending in courts
• Established at Central, state & district level – have their own funds
Powers of LOK ADALATs:
The summoning and enforcing the attendance of any witness and examining him on oath The discovery and production of any document The reception of evidence on affidavits The requisitioning on any public record of document or copy of such record or document from any court or office and Such other matters as may be prescribe. All the proceedings before LOK ADALATs shall be deemed judicial civil court. It can specify its own procedure for the determination of any dispute coming before it.
• A Lok Adalat has the jurisdiction to settle, by way of effecting compromise between the parties. Any matter which may be pending before any court, as well as matters at pre-litigative stage, that is, disputes which have not yet been formally instituted in any Court of Law.
• Such matters may be civil or criminal in nature, but any matter relating to an offence not compoundable under any law cannot be decided by the Lok Adalat even if the parties involved therein agree to settle the same.
• Lok Adalats can take recognisance of matters involving not only those persons who are entitled to avail free legal services but of all other persons also, be they women, men, or children and even institutions.
• Any civil dispute with a public utility service and where the value of the property in dispute does not exceed l0-lakh: or any criminal dispute which does not involve an offence not compoundable under any law, can be taken up in the Permanent Lok Adalat. For eg. – transport services for the carriage of passengers or goods by air, road or water, postal, telegraph or telephone services; insurance service, as also services in hospital or dispensary, supply of power, light or water to the public, besides systems of public conservancy or sanitation.
• Lok Adalats have been held and therein regularly held in India end millions of cases have been settled, and interestingly majority of these cases are motor accident claim cases.
• An important feature of this amendment is that after an application is made to the Permanent Lok Adalat, no party to that application can invoke jurisdiction of any court in the same dispute.
• Such disputes involving public utility services shall be attempted to be settled by the Permanent Lok Adalat by way of conciliation and failing that, on merit, and in doing so the Permanent Lok Adalat shall be guided by the principles of natural justice, objectivity, fair play, equity and other principles of justice without being bound by the Code of Civil Procedure and the Indian Evidence Act.
H. Nyaya Panchayats
• The Nyaya Panchyats are the judicial bodies in village, which provide speedy and inexpensive justice on all petty civil suits and minor offences within their domain of operations. Usually their domain of jurisdiction is limited to four to five villages only-They can impose only monetary fines at the most as punishments and are barred from the power to award imprisonment sentences (except in Bihar).
I. Family courts
• The Family Courts Act (1984) aims at promoting conciliation in and securing speedy settlement of disputes relating to marriage, family affairs and related matters.
• It envisages that courts shall be set up in a city or town with a population of more than 10 lakh and at such other places as the state government may deem necessary. Family courts have been set up in Andhra Pradesh (7), Assam (1), Bihar (2) Karnataka (8), Kerala (7), Maharashtra (16), Manipur (1), Orissa (2), Puducherry (1), Rajasthan (6), Sikkim (l),Tamil Nadu (6), Uttar Pradesh (16) and West Bengal (1).
• The Governments of Gujarat (1) and Punjab (2) have also decided to establish Family Courts. Besides, necessary notifications extending the jurisdiction of the Family Courts, Act have also been issued by the Government of India in respect of Haryana, Madhya Pradesh and the Union Territory of Andaman and Nicobar Islands.
• Land Revenue – Important source of income for government
• Since India is an agrarian country, therefore disputes relating to land revenue are quite common.
• Each district has separate courts for its land revenue system
• Every dispute relating to land revenue 1st comes before Tehsildar
• An appeal against decision of Tehsildar court lies in court of Deputy commissioner /Collector (DM)
• An appeal against the decision of DM can be made in court of commissioner / Magistrate
• Further appeal can be made in Board of revenue, which forms highest court of land in revenue matters
Full faith & Credit:
Final judgment or orders delivered by civil courts in any part of the territory of India shall be capable of execution anywhere in India. Clause only applicable to civil courts not on criminal courts.
J. Consumer Forum:
The Parliament has enacted the Consumer Protection Act, 1987 which provides a consumer protection against deficiency in a service or goods. The Act has provided for the following three types of consumer courts with defined jurisdictions:
• District Consumer Forum: It is presided by the District Judge. It can hear cases upto worth Rs. 20 lakh.
• State Consumer Commission: It is presided by a High Court Judge. It can hear cases between Rs. 20 lakh and Rs. 1 crore. It can also appeals against the judgement of the District Consumer Forum.
• National Consumer Commission: It is presided by a Supreme Court judge. It can hear cases worth Rs. 1 crore and above. It can also hear appeals against the judgment of the State Consumer Commission.
K. Fast Track Courts:
• Set up under the recommendations of the 11th Finance Commission, Fast Track Courts have been set up to expedite long pending cases in various courts on priority basis. It is a completely centrally funded scheme.
• These courts take up matters pending for three years or more and expeditiously dispose them within a given time frame. The state are supposed to given priority to cases relating to offences against senior citizens, women and physically handicapped.
• So far 1711 fast track courts have been established. Initially they had tenure of five years, but in 2006, their tenure was extended for another five years.
L. Concept of plea Bargaining:
• The concept of plea bargaining has been newly introduced in the Indian Judicial system. It has been in practice in USA for a long time. A plea bargain is an agreement in a criminal case in which a prosecutor and a defendant arrange to settle the case against the defendant.
• The defendant agrees to plead guilty in exchange for some agreement from the prosecutor as to the punishment.
• In plea bargaining, the prosecutor agrees to reduce the charges against the defendant and may dismiss some of the charges against him. The effects of plea bargaining are manifold.
– It saves the litigation costs of both the parties.
– It saves the time of the court.
– The under-trial gets lesser punishment.
• In India, plea bargaining has been introduced by inserting a new chapter-Chapter XXIA in the Criminal Procedure Code (1973).
• Plea bargaining was introduced through the Criminal Law (Amendment) Act, 2005. The provision is likely to bring relief to a large number of under-trials lodged in various jails of the country and help reduce the long pendency in the courts.
• It is applicable only in respect of those offence for which punishment of imprisonment is up to a period of 7 years, it does not apply where such offence affects the socio-economic condition of the country or has been committed against a woman or a child below the age of 14 years.
• The application for plea bargaining should be filed by the accused voluntarily, a person accused of an offence may file an application for plea bargaining in the court in which such offence is pending for trial and the complainant and the accused are given time to work out a mutually satisfactory disposition of the case, which may include giving to the victim by the accused, compensation and other expenses incurred during the case.
• In the event of a satisfactory disposition of the case being worked out, the Court shall dispose of the case by sentencing the accused to one- fourth of the punishment provided or extendable, as the case may be for such offence.
• The statement or facts stated by an accused in an application for plea bargaining shall not be used for any other purpose other than for plea bargaining; the judgment delivered by the Court in the case of plea-bargaining shall be final and no appeal shall lie in any court against such judgment.
M. National Litigation Policy:
• The Centre has formulated a National Litigation Policy to reduce the cases pending in various courts in India under the National Legal Mission to reduce average pendency time from 15 years to 3 years.
• The National Litigation Policy is based on the recognition that Government and its various agencies are the pre-dominant litigants in courts and Tribunals in the country.
• Its aim is to transform Government into an Efficient and Responsible litigant. This policy is also based on the recognition that it is the responsibility of the Government to protect the rights of citizens, to respect fundamental rights and those in charge of the conduct of Government litigation should never forget this basic principle.
• Litigators on behalf of Government have to keep in mind the principles incorporated in the National mission for judicial reforms which includes identifying bottlenecks which the Government and its agencies may be concerned with and also removing unnecessary Government cases.
• Prioritisation in litigation has to be achieved with particular emphasis on welfare legislation, social reform, weaker sections and senior citizens and other categories requiring assistance must be given utmost priority.
• Its aims to transform Government into an Efficient and Responsible litigant.
• It instructs to place correct facts, all relevant documents before the court/tribunal and not to mislead them.
• Pending cases with government as party to be reviewed on priority basis to enable quick disposal.
• Propose a monitoring and review mechanism to sensitize government in important cases and avoid delay and neglect of the same.
• It gives recognization to the principle that government is responsible for the protection of the rights of the citizens.
N. Rural Courts for Speedy Justice
• Perhaps the most important practical reform would be constitution of rural courts for speedy justice. As already stated, the number of judges in our society is slightly over 10 per million population.
• This density is roughly 10% of the density of judges (per unit population) in more advanced and law abiding societies. Even this low number is highly skewed with pitiful shortages in subordinate judiciary and ridiculously large numbers in higher courts.
• Obviously what is needed is a substantial increase in the number of judges at the local level giving access to the ordinary people.
• In addition to the number and access, the procedures of these local courts should be simple and uncomplicated giving room for sufficient flexibility to render justice.
• These courts should use only the local language and they should be empowered to visit the villages and hear the cases and record evidence locally.
• Above all they should be duty bound to deliver the verdict within the specified time frame. There could be several models like the ‘gram nyayalaya’ advocated by the Law Commission in its 114th report.
• Essentially, there should be such rural courts with special magistrates with jurisdiction over a town, or a part of a city or a group of villages.
• These special magistrates should be appointed by District Judge for a term of 3 years. They should have exclusive civil and criminal jurisdiction of all civil disputes up to Rs one lakh in civil cases and up to an imprisonment of one year in criminal cases. In addition, certain civil disputes arising out of implementation of agrarian reforms and allied statutes, property disputes, family disputes and other disputes as recommended by the Law Commission could be entrusted to these rural courts.
• In civil cases there should be only a provision for revision by the District Judge on grounds of improper application of law and on no other ground. In criminal cases where imprisonment is awarded, there could be a provision for appeal to the Sessions Judge.
• The procedures must be simplified and these courts should be duty bound to deliver a verdict within 90 days from the date of complaint.
O. E-Courts Mission Mode Project:
• The E-courts project was established in the year 2005. According to the project, all the courts including taluk courts will get computerised. As per the project in 2008, all the District courts were initialised under the project.
• In 2010, all the District court were computerised. The entry of back log case has started. The IT department had one system officer and two system assistants in each court. They initiated the services in the Supreme Court in June 2011.
• The case lists and the judgements of most district courts is used to connect all High Courts and Supreme Court judgements and cause list. The special websites are updated daily by a technical team. Now the establishment work is going on taluk courts.
• The project also includes producing witnesses through video conferencing. Filing cases, proceedings, and all other details will be in computers. Each district court contains 1 system officer and 2 system assistants. This technical manpower is involved in training the staff, updating web sites.
P. Judicial Service Centre
This is a part of e-court project. The judicial service centres are available in all court campus. The Public as well as the advocates can walk in directly and ask for the case status, stage and next hearing dates. This service is provided for free.