Tuesday, January 31, 2023


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By Inderjit Badhwar

Our courts are going to have a handful. Already overburdened by a mindboggling backlog of cases of every conceivable nature—civil, criminal, jurisdictional, international—the higher judiciary must now get ready to face an array of cases that concern the way the country is run and governed. And the decisions it makes in these cases may well become the harbingers of constitutional shifts and game-changing precedents affecting our very nationhood.

India is going through a massive political transition not only because it is now governed by a party with a majority whose right-of-centre ideology will perforce trickle into every nook and corner of governance but also because the courts are being increasingly called upon to rule on matters which often defy precedent and may not find parallels in existing case laws and the precepts of natural justice within the body of Indian or international legal opinions and judgments.

Take for example the case of the poor farmer who was killed by hanging from a tree adjacent to a pro-farmers rally by Delhi’s ruling Aam Aadmi Party. There’s a police and magisterial investigation under way to determine who is culpable: the security forces? The rally organizers? Mediaper-sons who stood around recording the event rather than jumping to help the hapless victim? Or the Delhi government?

In yesterday’s India, the man would have been cut down from the rope. The event declared a suicide. A cremation. And then…on with the next show. But in today’s India, accountability is becoming a key watchword in the everyday business of being and functioning as a citizen. The Indian wants answers. The Indian wants someone to pay for something that has gone wrong and needs sorting out. The system of governance—heavily weighted towards an elected but largely unaccountable, rigid, hidebound, self-protectionist executive branch guarded by a colonial-style bureaucracy— has not learned to respond adequately or in time unless prodded by the courts or the press.

So, naturally, the people turn more and more to the courts which, although also the object of public criticism for being slow or compromised—have often proven to be the only real last and lasting resort. But despite the intentions of the best of our judges, what are they to do in the face of the backlog mountain? Let me cite—from media sources—the Supreme Court’s own statistics:

According to data available with the apex court, the number of pending cases with the Supreme Court is 64,919 as on December 1, 2014. The data available for the 24 high courts and lower courts up to the year ending 2013 showed pendency of 44.5 lakhs and whopping 2.6 crores, respectively. Of the over 44 lakh cases pending in the 24 high courts of the country, 34,32,493 were civil and 10,23,739 criminal.

The maximum pendency of civil and criminal cases together was in Allahabad High Court with 10,43,398 cases while the minimum was in Sikkim with 120 cases pending at the end of 2013. The Delhi High Court had a total of 64,652 cases pending before it. As per the data, the Allahabad High Court had the maximum number of pending criminal cases—3,47,967

CHENNAI, JUNE 05 (UNI):-Tamil Nadu Chief Minister and AIADMK General Secretary J jayalalithaa shows victory signs after filling her nomination papers to returning officer for the R K Nagar Assembly Constituency By-Elections, in Chennai on Friday. UNI PHOTO-81UThe judiciary is saddled with a plethora of cases like Nirbhaya rape,   Jayalalithaa’s conviction followed by acquital.

Delhi district courts recorded a total of 5,22,167 pending cases, including 3,81,615 criminal cases.

If you said, whew! you would be expressing the same exclamatory sentiment probably being experienced by conscientious judges struggling with how to prioritize their schedules. Do they deal first with the innocent undertrial, unable to afford bail, who has been sitting in jail for 10 years waiting to clear his name or do they tackle cases of grave constitutional import and significance that may impact the very functioning of the Indian Republic and the Rule of Law?

The courts are being increasingly called upon to rule on matters which often defy precedent and may not find parallels in existing case laws.

That everybody seems to be turning to the courts to solve problems is no exaggeration. If you study the papers and watch TV news of the last couple of years, you cannot escape the fact that almost every Page One story—current affairs, politics, economic—has a massive legal angle to it crying out for juridical comprehension and judicial resolution.

Start anywhere: The former Tehelka editor Tarun Tejpal case and the definitions of rape and Vishakha guidelines as well as sexual harassment charges against sitting judges. Net neutrality. Cyber censorship and the implementation of laws such as Section 66A.

The Armed Forces Special Powers Act. The Modi government’s rule by ordinance. The issue of bills involving criminal prosecutions being passed off as “money bills” in the Lok Sabha and thereby bypassing the scrutiny of the Upper House. Draconian provisions of the anti-black money legislation that would give police powers to ordinary tax assessors and shift the burden of proof to the taxpayer.

The ugly battle between an elected government in Delhi and a Lieutenant Governor accused of sabotaging governance under orders from the central government. A state law minister being arrested and detained for allegedly faking a law degree. Prosecutors challenging the verdict of a court that exonerated Tamil Nadu Chief Minister Jayalalithaa. The tussle between the ministries of Information and Broadcasting and Home over stopping the Sun TV and media empire from functioning. The bitter struggle between the executive and the judiciary of the Judicial Appointments

Commission and the old collegium system for appointing judges. The politics of post-mortems in which murder is suspected as in the Sunanda Pushkar case. Retro-active taxation as in the Vodafone case.

India Legal has reported on most of these stories keeping in mind the legal perspectives, of which readers must become aware if they are to understand and discharge their duties and protect their civil rights and liberties as citizens. In the current issue of our magazine, we focus on similar vexing issues which ultimately will tax the brains and acumen for our lawyers and judges because in many ways their outcomes—as in the stories listed in the previous paragraph—will change the way we live and our nation functions.

The cover story—inspired by Nestle’s Maggi noodles controversy—will mark a watershed, as Bhavdeep Kang argues, in India’s history as a consumer nation, its laws, health regulation, consumer protection, and human awareness as a whole. It is going to create a tidal wave of reactions and counter reactions and judicial outcomes.
This issue also reports on Madhya Pradesh’s Professional Examination Board (PEB) scam which has left some 32 suspects dead under mysterious circumstances.

Do judges deal first with the innocent undertrial, unable to afford bail, or tackle constitutional cases that may impact the functioning of India and Rule of Law?

We also carry a story on the posts of chief vigilance commissioner and chief information officer finally being filled after a long gap. Now this is good news. But for constitutional analysts and good governance proponents, the news provokes the need to seek judicial intervention to declare that the non-filling of these key government posts should be made culpable. One analyst has pointed out a lacuna in the law itself: The first problem is that the CVC post is directly under the control of the government as the committee that selects the CVC consists of three parliamentarians, the prime minister, minister of home affairs and leader of opposition.

Moreover, there is no transparency in the process of nomination and selection of candidates for the post and the law reserves this post only for active or retired bureaucrats. The second problem is that the CVC Act, 2003 does not set any time limit within which to appoint the CVC , after the incumbent retires or is removed. This is a big loophole which is misused by the political parties in keeping the post vacant for as long as possible. Surely this is a fit case for a PIL or judicial intervention.

But where do we begin? How will the learned judges know what to prioritize in a nation in the throes of change, corruption, criminality and controversy? They will have to learn to make quick, tough and hard decisions and pave the way for sweeping reforms holding on tenaciously to the precepts of liberty, equality, freedom, and justice for all as India transforms itself.

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