Central Idea:

Justice Gautam Patel’s landmark decision on the Kunal Kamra’s case underscores the critical importance of upholding the constitutional right to free speech, particularly in the realm of social media. The decision highlights the inherent dangers of arbitrary censorship and the need for clear, reasonable restrictions in line with constitutional principles.

Key Highlights:

• Upholding Free Speech: The decision reaffirms the sacrosanct nature of the constitutional guarantee of free speech, emphasizing its protection against undue state encroachment.
• Rejection of Arbitrary Censorship: Justice Patel condemns the amended Rule 3(1)(b)(v) of the IT Rules 2021 as vague and overbroad, posing a threat to critical discourse and debate.
• Constitutional Principles: The judgment invokes Article 19 and Article 14 of the Constitution, arguing that the amended rule infringes upon fundamental rights and lacks reasonable standards.
• Importance of Judicial Review: The decision underscores the role of judicial review in curbing potential abuses of power by government entities, particularly in safeguarding democratic principles.
• Recognition of Digital Regulation: While acknowledging the need to combat misinformation, the judgment insists on the importance of balanced regulation that respects free speech rights.

Key Challenges:

• Interpretation of Constitutional Rights: Balancing free speech with the need for regulation presents a challenge in defining clear and reasonable restrictions.
• Enforcement and Compliance: Ensuring compliance with constitutional principles and judicial decisions poses challenges in a dynamic digital landscape.
• Government Response: The government’s response to judicial decisions and its commitment to upholding constitutional principles may vary, influencing the effectiveness of legal interventions.

Main Terms or key terms for answer writing:

• Free Speech
• Constitutional Guarantee
• Social Media Regulation
• Arbitrary Censorship
• Judicial Review
• Fundamental Rights
• Digital Platforms
• Misinformation
• Democratic Principles

Important Phrases for good marks in mains:

• “The sacrosanctity of the inviolate constitutional guarantee of free speech”
• “Vague and overbroad”
• “The imperative of combatting fakery and misinformation”
• “A bulwark against the excesses of majoritarian assemblies”
• “Agents of injustice”
• “Inter-institutional comity”

Quotes that you can use in essay for value addition:

• “The cacophony of dissent and disagreement is the symphony of a democracy at work.”
• “Falsehood flies, and truth comes limping after it.”
• “The will of the State is subject to scrutiny by those affected by the exercise of State power.”
• “Democratic power is a trust held upon conditions.”

Useful Statements for value addition:

• “The decision reaffirms the constitutional conscience and rejects the potential for wanton abuse of power.”
• “Fear-instilled stillness ill serves the case of a vibrant democracy.”
• “A law that permits its enforcers to become agents of injustice cannot be countenanced in a constitutional democracy.”

Examples and References:

• Shreya Singhal case (2015)
• Zeran case (1997)
• Harold Laski’s “A Grammar of Politics” (1937)
• Jonathan Swift’s statement on falsehood and truth

Facts and Data for value addition and credibility to your arguments:

• Mention of the amended Rule 3(1)(b)(v) of the IT Rules 2021.
• Reference to Justice Patel’s decision on the Kunal Kamra’s case, dated 31st January.

Critical Analysis:

Justice Patel’s decision serves as a significant safeguard against potential abuses of power and underscores the importance of upholding free speech in the digital age. By rejecting arbitrary censorship and emphasizing the need for clear, reasonable restrictions, the judgment sets a crucial precedent for protecting democratic principles.

Way Forward:

• Ensure compliance with constitutional principles in regulating digital platforms.
• Encourage balanced regulation that combats misinformation while respecting free speech rights.
• Foster inter-institutional comity by heeding judicial decisions and promoting democratic accountability.

By adhering to these principles, policymakers can navigate the complexities of digital regulation while upholding fundamental rights and democratic values.

Improve your answer writing with us and crack the mains 

Try to attempt following question and write the answer in comment box below

1. How does Justice Patel’s decision in the Kunal Kamra’s case uphold the constitutional right to free speech?
2. What are the key challenges in balancing free speech with the need for regulation, as highlighted in the judgment?
3. How does the judgment emphasize the importance of judicial review in safeguarding democratic principles in the digital age?

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Central Idea:

The article discusses the recent recommendations made by the Parliamentary Standing Committee on Personnel, Public Grievances, Law, and Justice to enhance the quality of legal education in India. It highlights the need for a new regulatory body, the National Council for Legal Education and Research (NCLER), to oversee post-graduation level education, prioritize research in law schools, and address the challenges hindering the excellence of legal education in the country.

Key Highlights:

• Recommendations for Regulatory Reform: The committee proposes limiting the Bar Council of India’s (BCI) role in legal education regulation and establishing the NCLER to set qualitative benchmarks for post-graduation level education.
• Emphasis on Research: Recognizing the deficiency in research focus among Indian law schools, the committee stresses the importance of promoting research to improve teaching outcomes and cultivate critical thinking skills among students.
• Global Perspective: Acknowledging the impact of globalization on legal education, the committee suggests incorporating global curriculum, international exchange programs, and more international law courses to prepare students for a globalizing world.
• Call for Strong Leadership and Academic Freedom: The article emphasizes the necessity for passionate and visionary academic leaders in law faculties and universities to foster a supportive environment for faculty and promote academic freedom.

Key Challenges:

• Lack of Leadership: The absence of effective leadership in law faculties and universities impedes efforts to achieve excellence in legal education.
• Insufficient Research Focus: Many law schools in India prioritize teaching over research, resulting in a scarcity of indigenous legal knowledge and reliance on Western legal literature.
• Resistance to Change: Implementing reforms in legal education requires a shift in mindset among stakeholders and a commitment to prioritize higher education.

Main Terms or key quotes:

• National Council for Legal Education and Research (NCLER)
• Bar Council of India (BCI)
• Globalization
• Academic Freedom

Important Phrases for mains answer enrichment:

• “Sea of institutionalized mediocrity”
• “Consumer of legal knowledge generated in the West”
• “Augmenting the research ecosystem”
• “Complete academic freedom and autonomy”

Quotes for quality essay:

• Albert Einstein: “The value of a college education is not the learning of many facts but the training of the mind to think.”
• Jawaharlal Nehru: “A university stands for humanism, for tolerance, for reason, for the adventure of ideas and for the search of truth.”

Useful Statements:

• “Legal education in India needs regulatory reform to address its current shortcomings and enhance its quality.”
• “Promoting research is crucial to improving teaching outcomes and fostering critical thinking skills among students.”
• “Effective leadership and academic freedom are essential for driving meaningful change in legal education.”

Examples and References:

• National Law School of India University and Jindal Global Law School are among the few Indian law schools ranked in the top 250 globally.
• Out of over 800 law journals indexed in Scopus, only a handful are from India, indicating the low level of research output from Indian law schools.

Facts and Data:

• India has over 1,700 law schools, but only a few have achieved excellence in legal education.
• Legal education in India has historically lagged behind fields like medicine and engineering in terms of priority and investment.

Critical Analysis:

The article aptly highlights the systemic challenges plaguing legal education in India and the urgent need for reform. It identifies regulatory deficiencies, research gaps, and leadership issues as key barriers to achieving excellence. However, it fails to delve deeply into the specific strategies or mechanisms required to address these challenges.

Way Forward:

• Implement the recommendations of the Parliamentary Standing Committee to establish the NCLER and redefine the role of the BCI.
• Invest in promoting research culture in law schools through funding, infrastructure, and academic support.
• Encourage academic leadership that fosters a culture of innovation, excellence, and academic freedom.
• Foster collaboration between law schools, industry, and international institutions to enhance curriculum relevance and global exposure for students.

In conclusion, while the recommendations put forth by the committee represent a step in the right direction, concerted efforts from all stakeholders are necessary to bring about meaningful change and elevate the quality of legal education in India.

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Central Idea:

The article discusses the aftermath of the Supreme Court verdict on the Babri Masjid case in November 2019 and its implications on the Places of Worship (Special Provisions) Act, 1991. It highlights the challenges posed by the resurgence of petitions targeting mosques like the Gyanvapi Masjid in Varanasi and the Shahi Idgah in Mathura, and the subsequent debates on the Act’s validity and applicability. It emphasizes the need for the Supreme Court to intervene to protect the integrity of the Act and prevent its politicization.

Key Highlights:

• Supreme Court’s verdict on the Babri Masjid case in November 2019 praised the Places of Worship Act, 1991 for preserving the religious character of places of worship as of August 15, 1947.
• Hindutva forces initiated petitions targeting mosques in Mathura, Varanasi, and other places, challenging their status and calling for their liberation.
• Despite lack of concrete evidence, petitions against mosques were admitted in various district courts, signaling a deliberate challenge to the Places of Worship Act.
• The Supreme Court’s silence on the increasing challenges to the Act raised concerns about its integrity and enforcement.
• The court’s decision to hear petitions against the Act itself and the Union government’s delays in specifying its stance raised doubts about the Act’s future.

Key Challenges:

• Increasing petitions challenging the status of mosques threaten communal harmony and challenge the secular principles enshrined in the Indian Constitution.
• The politicization of the issue, with petitions being used as a tool to further certain political narratives, adds complexity to the debate.
• Delays in the Supreme Court’s intervention and the government’s ambiguity on the Act’s status create uncertainty and erode public trust in the legal system.
• Historical grievances and communal tensions fuel the resurgence of demands for the reclamation of religious sites.

Main Terms or key words:

• Places of Worship (Special Provisions) Act, 1991: Legislation preserving the religious character of places of worship as of August 15, 1947, and prohibiting their conversion.
• Hindutva: Ideology promoting Hindu nationalism.
• Communal Harmony: Peaceful coexistence and cooperation among different religious communities.
• Secularism: Principle of separating religion from state affairs and ensuring equal treatment of all religions.
• Petitions: Formal requests submitted to a court seeking legal action or remedy.

Important Phrases for mains value addition:

• “Non-retrogression as an essential feature of our secular values.”
• “Challenges to the Act amount to a breach of public trust.”
• “The politicization of petitions serves certain political narratives.”
• “The silence of the top court is unsettling.”

Quotes for quality enrichment of mains answers:

• “The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution.”
• “Similarly minded people are as little likely to be deterred by the provisions of the Places of Worship (Special Provisions) Act 1991.”
• “The ascertainment of the religious character of a place as a procedural instrument may not necessarily fall foul of the provisions of sections 3 and 4 of the Act of 1991.”

Anecdotes:

• The order of a district court in Uttar Pradesh in 1986 kick-started events leading to the destruction of the Babri Masjid, illustrating the significance of legal decisions regarding places of worship.

Useful Statements:

• The resurgence of demands for the reclamation of religious sites threatens communal harmony and challenges secular principles.
• The Supreme Court’s intervention is crucial to uphold the integrity of the Places of Worship Act and prevent its politicization.

Examples and References:

• Petitions targeting mosques in Mathura, Varanasi, and other places highlight the growing challenges to the Places of Worship Act.
• The Babri Masjid-Ramjanambhoomi agitation and slogans like “Ayodhya to jhanki hai, Kashi, Mathura baqi hai” demonstrate historical grievances and communal tensions.

Facts and Data:

• The Places of Worship Act, 1991, preserves the religious character of places of worship as of August 15, 1947.
• The Supreme Court admitted petitions challenging the Act’s validity and the government’s delays in specifying its stance.

Critical Analysis:

The article provides a comprehensive overview of the challenges posed by petitions targeting mosques and questioning the Places of Worship Act, 1991. It emphasizes the importance of preserving communal harmony and secular principles while addressing historical grievances. However, it also highlights the politicization of the issue and the need for timely intervention by the Supreme Court to prevent further escalation.

Way Forward:

• The Supreme Court should actively intervene to uphold the integrity of the Places of Worship Act and prevent its politicization.
• Political leaders and stakeholders should prioritize communal harmony and refrain from using religious sentiments for political gain.
• Civil society should promote dialogue and understanding among different religious communities to prevent communal tensions.
• The government should clarify its stance on the Act and ensure its effective implementation to maintain secularism and protect religious freedoms.

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Central Idea:

The article criticizes the Supreme Court of India’s November 2023 judgment allowing a six-month extension to Delhi’s Chief Secretary despite serious corruption allegations. It highlights the Court’s perceived inconsistency in upholding constitutional principles, particularly concerning the Government of National Capital Territory of Delhi (Amendment) Act 2023, and expresses concerns about the erosion of constitutional logic and past judicial wisdom.

Key Highlights:

• The Supreme Court’s decision to permit the extension of Delhi’s Chief Secretary’s tenure is viewed as an instance of judicial self-abnegation.
• The article questions the Court’s reversal of its own earlier Services judgment, which emphasized the elected government’s control over services in Delhi.
• Serious corruption charges against the Chief Secretary and the Delhi Chief Minister’s recommendation for his removal create a conflict of interest.
• The Court’s reliance on the 2023 amendment and the interpretation of the Chief Secretary’s role is criticized for being inconsistent with past rulings, including Royappa.
• The article points out the Court’s failure to acknowledge that the 2023 amendment did not exclude the application of the Royappa case.

Key Challenges:

• The Supreme Court’s perceived inconsistency in interpreting constitutional principles, especially regarding the Chief Secretary’s extension and the 2023 amendment.
• Addressing the conflict of interest posed by serious allegations against the Chief Secretary and the breakdown of trust between the elected government and bureaucracy.
• The Court’s deviation from its past rulings, particularly the Services judgment and Royappa case, creates a challenge in maintaining a coherent judicial stance.

Key Terms/Phrases:

• Judicial self-abnegation
• Government of National Capital Territory of Delhi (Amendment) Act 2023
• Constitutional logic
• Chief Secretary’s extension
• Services judgment
• Royappa case
• Conflict of interest
• Constitutional interpretation
• Erosion of trust
• Unilateral extension

Key Quotes:

• “The Court’s judgments become ‘writ in water’ when it reverses its own reasoning for the government’s convenience.”
• “The Court has lost sight of constitutional logic and past wisdom that attributed great value to constitutional interpretation.”

Key Statements:

• “The article questions the Court’s deviation from its earlier stance, leading to a perceived erosion of constitutional principles and inconsistency.”
• “The conflict of interest arising from serious charges against the Chief Secretary and the breakdown of trust between the elected government and bureaucracy is a significant concern.”

Key Examples/References:

• The Supreme Court’s November 2023 judgment permitting the Chief Secretary’s extension and its reliance on the 2023 amendment.
• The Services judgment emphasizing the elected government’s control over services and the Royappa case defining the role of the Chief Secretary.

Key Facts/Data:

• The Government of National Capital Territory of Delhi (Amendment) Act 2023 had been challenged by the Delhi government but was not stayed by the courts.
• Serious allegations of corruption against the Chief Secretary and the Chief Minister’s recommendation for immediate removal.

Critical Analysis:

The article critically examines the Supreme Court’s handling of the Chief Secretary’s extension, highlighting perceived inconsistencies, conflicts with past judgments, and a departure from established constitutional principles. It raises concerns about the erosion of trust between the elected government and bureaucracy.

Way Forward:

• The Supreme Court needs to revisit and reconcile its past judgments, especially the Services and Royappa cases, to ensure a coherent judicial stance.
• Addressing conflicts of interest and corruption allegations in bureaucratic appointments is crucial for maintaining public trust.
• The Court should uphold constitutional principles consistently, considering the broader impact on governance and accountability.
• Future decisions related to the Government of National Capital Territory of Delhi (Amendment) Act 2023 should be made with a clear understanding of constitutional logic and democratic principles.

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Central Idea:

The article discusses a recent Supreme Court decision regarding the remission of 11 convicts in the Bilkis Bano case. It highlights the court’s condemnation of illegalities and collusion between the petitioners and the Gujarat government. While celebrating the decision as a triumph for justice, the author also raises concerns about the lack of transparency and unchecked discretion in the remission process.

Key Highlights:

• The Supreme Court cancels remission orders for 11 convicts due to fraud and collusion with the Gujarat government.
• The decision is praised for upholding the rule of law and addressing the exceptional injustice faced by Bilkis Bano.
• The article acknowledges the inspiring resilience of Bilkis Bano and applauds women’s rights lawyers for their commitment.

Key Challenges:

• Lack of transparency in the formation and decision-making process of remission committees.
• Unchecked discretion and potential for arbitrary exercise of power in remission decisions.
• Concerns about non-application of mind and identical orders in the remission process, as seen in the Bilkis Bano case.

Key Terms:

• Remission: Reduction of sentence through earned days based on rehabilitation activities.
• Per incuriam: Declared as illegal due to a mistake or oversight.
• Retributive punishment: Focused on punishment rather than rehabilitation.
• Judicial review: Examination of a decision for legality and fairness.
• Usurpation of power: Unauthorized assumption of authority.

Key Phrases:

• “Injustice of exceptionalism”: Describes the grant of remission in the Bilkis Bano case as a unique and unjust situation.
• “Resilience that prevailed”: Commends Bilkis Bano’s enduring strength in the face of injustice.
• “Soothing balm”: Refers to the comfort provided by the Supreme Court’s firm decision.
• “Unchecked discretion”: Highlights the potential for arbitrary decision-making in remission cases.

Key Quotes:

• “Rule of law and equality before the law would be empty words if their violation is not a matter of judicial scrutiny.”
• “Remission is rooted in the logic that prisons are meant to be rehabilitative spaces.”
• “Justice Nagarathna’s words come as solace in light of the disturbing memory of the celebrations that followed the release of the 11 convicts.”

Key Examples and References:

• Bilkis Bano case: Illustrates the background of the Supreme Court decision and the injustices faced by the victim.
• Union of India vs V. Sriharan (2015): Reference to a Constitution Bench decision on the appropriate government for remission.
• Epuru Sudhakar vs State of Andhra Pradesh (2006): Supreme Court ruling on the judicial review of remission orders.

Key Facts and Data:

• Life convicts must serve a minimum of 14 years before applying for remission.
• Remission policies in some states deny opportunities based on crime categories.
• The Gujarat government’s remission orders for the 11 convicts were identical.

Critical Analysis:

The article raises concerns about the arbitrary exercise of power in remission decisions, citing the lack of transparency and identical orders in the Bilkis Bano case. It prompts a reflection on whether certain offenders should be ineligible for remission or if a focus on fair compliance with conditions is more appropriate.

Way Forward:

• Advocate for increased transparency in the formation and functioning of remission committees.
• Emphasize the importance of considering individual circumstances and compliance with remission conditions.
• Encourage a reevaluation of remission policies to avoid blanket denials based on crime categories.
• Address the issue of unchecked discretion to ensure a fair and rehabilitative approach in the remission process.

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Central Idea:

• The article explores challenges to the credibility of the rule of law, emphasizing the delicate balance between traditional norms and modern adaptations.
• Recent legal reforms in India, particularly the Jan Vishwas Act, are discussed, along with concerns about potential abuses of power through shortcuts in law enforcement.

Key Highlights:

• The article underscores the significance of faith in the inherent goodness of legal norms for trust in the rule of law.
• Discussion on the Jan Vishwas Act addressing outdated laws to facilitate business activities and reduce compliance burdens.
• Replacement of colonial-era laws with the Bharatiya Nyaya (Second) Sanhita to modernize legal thinking and rebuild credibility.
• The credibility crisis is attributed to shifts in perceptions of law as a power resource and the adoption of shortcut methods in law enforcement.

Key Challenges:

• Potential misuse of power through encounters and ‘bulldozer’ methods without democratic checks and balances.
• Concerns about the crude nature of an abridged rule of law, leading to arbitrary justice and unpredictability.

Key Terms:

• Jan Vishwas Act
• Bharatiya Nyaya (Second) Sanhita
• Credibility crisis
• Shortcut or abridged rule of law model

Key Phrases:

• “Normative raison d’etre” – referring to the fundamental basis or justification of norms.
• “Smart governance” – addressing infirmities and outdatedness in laws through effective governance.
• “Encounter killings” and “bulldozer action” – methods of law enforcement discussed in the article.

Key Quotes:

• “Fear of imprisonment for minor offences is a major factor hampering the growth of the business ecosystem.”
• “The real credibility crisis of the rule of law is located not so much at the normative level but at the level of the rule of law reality.”

Key Statements:

• Acknowledgment of the government’s faith in the traditional rule of law as a positive aspect.
• Highlighting the dangers of growing reliance on shortcut or abridged rule of law models.

Key Examples and References:

• The Dandi March as an example of civil disobedience against an unjust law.
• Instances of police encounters and ‘bulldozer’ actions leading to potential abuses of power.

Key Facts:

• The Jan Vishwas Act addressed changes in numerous central Acts, including the Indian Post Office Act, and the Cinematograph Act.
• Replacement of colonial-era Indian Penal Code, Code of Criminal Procedure, and Indian Evidence Act in the second phase.

Critical Analysis:

• The article critically examines the evolving landscape of the rule of law, highlighting potential challenges and consequences of shortcut methods in law enforcement. It questions the credibility crisis and emphasizes the importance of maintaining faith in traditional norms.

Way Forward:

• The article suggests staying alert to the dangers of shortcut or abridged rule of law models.
• Encouragement to continue faith in the traditional rule of law while acknowledging the need for necessary reforms.

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Central Idea:

The author highlights the challenges faced by the Indian judiciary, emphasizing the need for unbiased judges and a political system that separates religion from politics. The use of religious sentiments for divisive purposes is criticized, calling for a transparent and merit-based judicial appointment system.

Key Highlights:

• Judicial challenges in handling a growing population and increasing litigations.
• Delayed justice in the Supreme Court, impacting the relevance of decisions.
• Concerns about the quality of judges and perceived ideological alignments in appointments.
• Critique of the current collegium system and its lack of transparency.

Key Challenges:

• Overburdened judiciary with a rising number of cases.
• Delayed justice affecting the effectiveness of legal decisions.
• Perceived ideological biases in judicial appointments.
• Lack of a transparent and merit-oriented system for judge selection.

Key Terms:

• Collegium System: The system of appointing judges through a committee of senior judges.
• Ideological Alignment: Alleged connections between judges and specific political or religious ideologies.
• Judicial Hierarchy: The levels of the judicial system, with the Supreme Court being the highest.

Key Phrases:

• “Bedevilled with challenges”: Describing the complex issues faced by the judiciary.
• “Divide and rule”: Criticizing the use of religious emotions for political manipulation.
• “Seminal issues”: Highlighting the critical issues decided by the Supreme Court.

Key Quotes:

• “India needs judges who deliver justice unconcerned with majoritarian sentiments.”
• “The collegium system has failed us.”
• “For the judiciary to regain its glory, it needs to do more than just decide on cases.”

Key Examples and References:

• Reference to the Chief Justice addressing dormant cases but acknowledging the urgency needed.
• Critique of the appointment of judges based on perceived proximity to political power.

Key Facts and Data:

• Increase in litigants seeking justice due to a burgeoning population.
• Delayed hearings and decisions in the Supreme Court.
• Issues with the current system of appointing judges.

Critical Analysis:

The author criticizes the judiciary’s current state, highlighting issues of delayed justice, ideological biases, and the failure of the collegium system. Emphasis is placed on the need for transparency and merit in the appointment process.

Way Forward:

• Reforming the judicial appointment process to ensure transparency and meritocracy.
• Addressing the backlog of cases to expedite justice delivery.
• Advocating for a political system that separates religion from politics to avoid divisive agendas.

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Central idea 

The article critiques the withdrawal and reintroduction of criminal law bills in India, highlighting concerns over civil liberties, overcriminalisation, and expanded police powers. It emphasizes the alarming increase in police custody duration and the absence of a transformative vision in the proposed legislations.

Key Highlights:

• Legislative Changes: The government withdraws and reintroduces criminal law bills, including Bharatiya Nyaya Sanhita (BNS-II), Bharatiya Nagarik Suraksha Sanhita (BNSS-II), and Bharatiya Sakshya Bill (BSB-II), reflecting potential shifts in the criminal justice system.
• Concerns Over State Control: The bills raise concerns about the expansion of state control, overcriminalisation, and enhanced police powers, potentially compromising civil liberties and increasing the risk of police excesses.
• Police Custody Duration: The BNSS proposes a significant increase in the maximum duration of police custody, from 15 days to 60 or 90 days, raising concerns about potential exposure to abuse and coercion.

Key Challenges:

• Risk of Overcriminalisation: The bills introduce broadly worded offenses, especially related to the security of the state, potentially leading to overcriminalisation and ambiguous legal provisions.
• Expanded Police Powers: The BNSS’s expansion of police custody duration, combined with vague offenses, raises concerns about the potential for misuse of power and coercive tactics.
• Lack of Transformative Vision: The bills lack a transformative vision for criminal law and justice, potentially entrenching colonial-era logic and emphasizing state control over citizen liberties.

Key Terms and Phrases:

• Bharatiya Nyaya Sanhita (BNS-II): A proposed legislation to replace the Indian Penal Code (IPC, 1860), reflecting potential changes in criminal law.
• Bharatiya Nagarik Suraksha Sanhita (BNSS-II): A bill aimed at replacing the Criminal Procedure Code (CPC, 1973) with potential implications for civil liberties and police powers.
• Bharatiya Sakshya Bill (BSB-II): Legislation seeking to replace the Indian Evidence Act (IEA, 1872), indicating potential shifts in the criminal justice system.

Key Quotes and Statements:

• “The expansion under the proposed BNSS heightens the risk of exposure to police excesses… a shocking expansion of police powers.”
• “These Bills present a missed opportunity to correct the entrenched injustices of our criminal justice system.”

Key Examples and References:

• Overcriminalisation Concerns: The bills introduce broadly framed offenses, including criminalizing misinformation, raising fears of overcriminalisation and potential misuse.
• Expansion of Police Custody: The BNSS proposes a substantial increase in the duration of police custody, contributing to concerns about potential abuse and coercive practices.

Key Facts and Data:

• Duration of Police Custody: The BNSS proposes expanding the maximum limit of police custody from 15 days to either 60 or 90 days, depending on the nature of the offense.

Critical Analysis:

• Missed Opportunity: The bills are criticized for not addressing deep-seated issues in the criminal justice system and potentially entrenching colonial-era logic without a transformative vision.
• Efficiency vs. Fairness: Emphasizes that goals of speedy justice and effective investigation, while important, cannot be achieved without addressing structural barriers and ensuring fairness.

Way Forward:

• Comprehensive Regulatory Ecosystem: Advocates for a regulatory framework ensuring fairness, transparency, and accountability, especially in the context of expanded police powers and overcriminalisation.
• Structural Reforms: Emphasizes the need for fundamental transformations in the criminal justice system, addressing issues like judicial vacancies, infrastructure, and scientific validity of forensic methods.

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Central idea

The government wants to change some important laws in India, causing questions about making them more modern and fair. The study says that the government should be very careful when making these changes to ensure that the new laws are fair and work well. The main idea is to check and fix the laws to make sure they are right for today.

Definitions and drafting of new bills

• Mental Illness Exception in IPC Replacement Bill: The new Bill, replacing the IPC, introduces a provision exempting individuals suffering from mental illness from being considered offenders. This marks a shift from the previous term “unsound mind.”
• Definition Alignment with Mental Healthcare Act, 2017: The definition of mental illness in the Bill aligns with the Mental Healthcare Act, 2017, aiming to provide medical treatment to those with mental illness. Notably, mental retardation or incomplete development is excluded, while abuse of alcohol or drugs is included.
• Differential Exemption Based on Condition: The new Bill grants full exemption to individuals addicted to alcohol or drugs under the mental illness exception. However, those unable to understand the consequences of their actions due to mental retardation are not granted the same exemption.
• Retention of Obsolete Illustrations: The existing laws, including the IPC, incorporated illustrations from daily life to explain their provisions. Despite some illustrations becoming obsolete, they have been retained in the new Bill.
• Need for Modernization in Illustrations: Recognizing the changing times, there is a suggestion that the illustrations, such as people riding chariots, firing cannons, and being carried on palanquins, should be updated to reflect contemporary events from modern life. This aims to enhance the relevance and clarity of the legal framework.

Seven issues related to modernising jurisprudence

• Exclusion of Civil Law: The Bills are questioned on whether they appropriately exclude civil law issues, despite the CrPC’s provisions for post-divorce maintenance and compounding certain offences. The new Bills retain these provisions.
• Reformative vs. Punitive System: The Bills’ approach towards a reformative system is examined with the introduction of community service as a punishment. However, non-compoundability of minor offences, leading to trial and conviction, raises concerns.
• Integration of Public Order and Prosecution: The CrPC’s structure, encompassing public order and criminal prosecution, is retained in the new Bills, prompting consideration on whether this integration is appropriate.
• Codification of Supreme Court Directions: The Bills are critiqued for not codifying various Supreme Court directions, excluding procedures for mercy petitions, thus creating potential gaps in the legal framework.
• Consistency of Implementation: The Bills’ retention of wide sentencing ranges for certain offences is examined for its impact on ensuring consistency in implementing penalties across cases.
• Age Provisions for Modern Norms: The need for updating age provisions in line with modern norms is questioned, specifically exploring whether age thresholds for criminal responsibility should be raised.
• Update of Gender-Related Offences: The Bills align with Supreme Court judgments by removing Section 377 and addressing gender-related offences. However, the omission of making marital rape an offence, despite recommendations from the Justice Verma Committee in 2013, is noted.

Key Phrases from article to fetch good marks in mains:

• Legislative Overhaul
• Reformative vs. Punitive
• Public Order and Prosecution
• Supreme Court Directions
• Consistency of Implementation
• Gender Offenses

Critical analysis

The bills offer a legislative overhaul, but challenges arise in areas of overlap with special laws, gaps in Supreme Court directions, and concerns about consistency in sentencing. The debate over reformative vs. punitive systems, age thresholds, and gender offenses adds complexity to the proposed changes.

Key Data:

• IPC Enacted: 1860
• CrPC Enacted: 1973
• IEA Enacted: 1872
• Legal Metrology Act, 2009
• Medical Termination of Pregnancy Act, 1971
• Mental Healthcare Act, 2017

Overlap of new laws with special laws

• Historical Context of IPC: The IPC, established in 1860, serves as the primary legislation outlining offenses and penalties, shaping the foundation of the Indian legal system.
• Issue of Duplication and Inconsistency:Concerns arise as the IPC, along with the proposed replacement Bill, continues to specify certain offenses and penalties, leading to duplication and inconsistencies across various laws.
• Addressing Specific Overlaps: Positive instances of addressing overlaps are noted, such as the removal of IPC provisions related to weights and measures by the Legal Metrology Act, 2009.
• Persistent Overlaps in New Bill: Despite some adjustments, the new Bill, like the IPC, exhibits overlaps with several other Acts, including those related to food adulteration, sale of adulterated drugs, bonded labor, and rash driving.
• Abortion as an Offense: Noteworthy is the retention of abortion as an offense in the new Bill, even though the Medical Termination of Pregnancy Act, 1971 permits it under specific conditions.
• Maintenance of a Parent Provision: The Bill replacing CrPC maintains the provision for the maintenance of a parent, despite a specific Act passed in 2007 addressing this matter. This raises questions about consistency and necessity.

Way Forward:

• Parliament needs to carefully examine the bills to ensure fairness, justice, and efficiency in the criminal justice system.
• Address concerns related to overlap with special laws, sentencing ranges, and gaps in codifying Supreme Court directions.
• Consider updating outdated illustrations and ensuring clarity in definitions for a modernized legal framework.
• Deliberate on the debate over reformative vs. punitive systems, age thresholds, and gender-related offenses for a comprehensive legislative approach.

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Context

• Once again, the Collegium of the Supreme Court of India is in the news, and once again for the wrong reasons. This time, it is because of the difficulty hat its five judges have in getting together for one meeting. Justice Chandrachud and Justice Nazeer withhold approval.Apparently, they do not object to the names but object to the procedure of circulation.

What is Collegium system?

• The Collegium of judges is the Indian Supreme Court’s invention.
• It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
• In effect, it is a system under which judges are appointed by an institution comprising judges.

• After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to affect a mass transfer of High Court judges across the country.

What was the perception around Independence of judiciary under threat?

• There was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.

1. First Judges Case (1981): SC ruled that the “consultation” with the CJI in the matter of appointments must be full and effective. However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
2. Second Judges Case (1993): Introduced the Collegium system, holding that “consultation” really meant “concurrence”. It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
3. Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

What are the problems associated with collegium system?

• Emphasis on Seniority principle: Collegium system emphasizes excessively on seniority.
• No discussion on merit and objectivity: However, following the seniority convention offers a semblance of certainty and transparency, even though it takes away from selecting judges on other objective criteria such as merit and competence.
• Collegium changes its own decision: At times, the sanctity of Collegium’s own decisions no longer stands. Its own previous decision to appoint other persons to the Supreme Court was reversed, without any explanation or justification.
• Lack of procedure: Besides this, no one knows how judges are selected, and the appointments made reek of biases of self-selection and in-breeding.
• Widely known Nepotism: Sons and nephews of previous judges or senior lawyers tend to be popular choices for judicial roles.
• Lack of checks and balances: With its ad hoc informal consultations with other judges, which do not significantly investigate criteria such as work, standing integrity and so on, the Collegium remains outside the sphere of legitimate checks and balances.
• Opaque system: The lack of a written manual for functioning, the absence of selection criteria, the arbitrary reversal of decisions already taken, the selective publication of records of meetings.

Collegium system is blessing in disguise

• Protect independence of judiciary: The framers of the Constitution were alive to the likely erosion of judicial independence.
• On May 23, 1949, K T Shah stated that the Judiciary, which is the main bulwark of civil liberties, should be completely separate from and independent of the Executive, whether by direct or by indirect influence.
• NJAC Declared unconstitutional: In 2016, the Supreme Court struck down a constitutional amendment for creating the National Judicial Appointments Commission (NJAC).
• Distrust on political executive: The SC strongly disapproved of any role for the political executive in the final selection and appointment of judges. The SC said that “reciprocity and feelings of payback to the political executive” would be disastrous to the independence of the judiciary.

What is National Judicial Appointment Commission (NJAC)?

• What is NJAC?
• guarantee the independence of the system from inappropriate politicisation,
• Strengthen the quality of appointments,
• Enhances the fairness of the selection process,
• Promotes diversity in the composition of the judiciary, and
• Rebuilds public confidence in the system.
• NJAC was missed opportunity of reforms: The SC in its majority decision declared the NJAC unconstitutional and missed an opportunity to introduce important reformatory changes in the functioning of the judiciary.
• Judicial majority could have been discussed: According to the experts, the Supreme Court could have read down the law, and reorganised the NJAC to ensure that the judiciary retained majority control in its decisions. However, it did not amend the NJAC Act to have safeguards that would have made it constitutionally valid.
• No reforms in the collegium system: It also did not reform the Collegium in any way to address the various concerns voiced by one and all, including the Court itself, Instead, to the disappointment of all those who hoped for a strong, independent and transparent judiciary, it reverted to the old Collegium based appointments mechanism.

Conclusion

• Appointments to the top court seem to be the preserve of judges from the High Court with a handful of appointments from the Bar. Surely some nodding acknowledgement should be given to a specific provision made by the founding fathers in the Constitution. Judges appointing the judges is not a sustainable practice for future of judiciary.

Mains Question

Q.What is NJAC? Why Collegium system is blessings in disguise? Explain the Collegium system of appointments.

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Context

• On September 27, the Supreme Court enabled the live streaming of the hearing of cases.
• A full court of all Supreme Court judges under the leadership of Chief Justice U U Lalit took the unanimous decision to live-stream constitutional bench proceedings. Justice Chandrachud, the Chairperson of the Supreme Court’s E-committee and the driving force behind the live streaming initiative, began the hearing in his courtroom by announcing,”We are virtual”.

Background

• The Court’s original decision by the bench of the then Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud on September 27, 2018, allowing the live telecast of important proceedings paved the way for this outcome. They had held that the live-streaming of court proceedings is in the public interest.
• Their vision had the full support of Chief Justices M V Ramana and U U Lalit.

What is live-streaming technology?

• At its core, streaming content is meant to help people attend events, expos, and experiences they cannot attend in person.
• Live streaming technology is how videos are streamed over the internet, live, in real-time, as they are being recorded.
• Live streaming technology is the internet’s response to live television broadcasts, with the most popular being news shows and sports.

What is Live-streaming of the court?

• Live streaming of court is that its proceedings that the people can watch on their mobiles and computers.All courtrooms function under camera glare.

Why Live-streaming of court is so important?

• Instilling Faith in the Judiciary: Enabling the ordinary people of the country to view, without any barrier, the workings of the highest court of the land will go a long way in instilling faith in the judiciary.
• Empowering the masses: It will enable the legal system to deliver on its promise of empowering the masses.Important step toward developing an informed citizenry.
• Respect to Rule of Law: The decision will enable people to understand the importance of the rule of law.It will help people appreciate that the judiciary is firm in protecting the rights of the impoverished, historically marginalised and disempowered sections of society. Potential to build a culture of respect for the rule of law.
• Living up the expectation of Constitution: Live-Streaming of Court proceedings is manifested in public interest. Public interest has always been preserved through the Constitution article 19 and 21.
• More transparency: It will encourage the principle of open court and reduce dependence on second-hand views. It will effectuate the public’s right to know. This would inspire confidence in the functioning of the judiciary as an institution and help maintain the respect that it deserved as a co-equal organ of the state.
• Raise the quality and standards of the legal profession: Lawyers will be better prepared to appear before the court and they will be mindful of not making irresponsible remarks. An inclusive approach to public scrutiny could nudge and enable lawyers to take the justice delivery mechanisms more seriously than they may have in the past.
• Level playing field: It also creates a level playing ground for the younger members of the legal profession as their preparedness and intellectual prowess will be apparent to all.
• Academic help: Watching courtroom proceedings,actual arguments by lawyers and searching questions by judges  could inspire law students to take up this relatively neglected field.Law faculty members and legal researchers will be motivated to work on new areas of scholarship and research relating to the functioning of the judiciary and legal profession.
• Easy accessibility reducing the obstacle of distance: With live-streaming, the litigants will no longer have to come to Delhi to witness proceedings of their case which would be just a click away.
• Strengthening Democracy: Transparency and accessibility of the process of justice delivery will strengthen the country’s democracy

What are the Concerns around live-streaming of court?

• Contempt of court: Video clips of proceedings from Indian courts are already on YouTube and other social media platforms with sensational titles and little context, such as “HIGH COURT super angry on army officer”.
• Disinformation and sensationalism: There are fears that irresponsible or motivated use of content could spread disinformation among the public.
• Unnecessary activism: With the advent of social media, every citizen became a potential journalist. Study shows that justices behave like politicians when given free television time, they act to maximize their individual exposure
• Internet connectivity: Internet connectivity issues and the need for a well-equipped space where lawyers can conduct their cases are some of the major problems requiring attention.
• Awareness and training: Judges, court staff and lawyers are not well-versed with digital technology and its benefits. The need of the hour is for them to be made aware of these and receive adequate training.

Which countries live-stream their court hearing?

• Internationally,constitutional court proceedings are recorded in some form or the other.
• United States: The Supreme Court of the United States streams its hearings in audio format at the end of each week.The US top court publishes hearings on its website and Oyez of all cases. Oyez is a multimedia judicial archive of the Supreme Court of the United States’ proceedings.
• Brazil: The Supreme Federal Court of Brazil live streams hearings of all cases in video format on television.
• UK: The UK Supreme Court live streams hearings of all cases in video format on its website.
• Canada: The Canadian Supreme Court also live streams hearings of all its cases in video format on its website.
• Australia: The Australian Supreme Court streams hearings of its full-court cases on its website with a delay of about a day. Meanwhile, the High Court of Australia (HCA) does not live-stream its proceedings.
• China: In China,court proceedings are live-streamed from trial courts up to the Supreme People’s Court of China.

Conclusion

• The chief justices (past and present) and the judges of the Supreme Court deserve to be congratulated for enabling a path-breaking and democratic decision that allows the people of India to be able to watch the live proceedings of the Constitutional Bench.The distinguished jurist, Oliver Holmes,famously observed,“The great thing in the world is not so much where we stand, as in what direction we are moving.” The judges of the Supreme Court of India have ensured that we are indeed moving in the right direction.

Mains Question

Q.Adoption of technology will radically change the field of law and transform the judiciary. What will be the role of courts, judges, politicians,media and citizens of the country regarding live streaming of court proceedings. Discuss

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Context

The Indian judiciary has increasingly started using technology and the change is reflected in the legal profession in general as well.

Increasing use of digital technology in the judiciary

• With the digitisation of judicial records and the establishment of e-courts, significant developments had taken place in 2020.
• Use of technology to better utilise potential: It is imperative that the use of digital technology be discussed to better utilise its potential, particularly in terms of digitisation of court records, e-filing of cases and their virtual hearing, live streaming of court proceedings.

Background

• In India, e-governance in the field of administration of justice began in the late 1990s, but it accelerated after the enactment of the Information and Technology Act, 2000.
• In the year of 2006, e-courts were launched as a part of the National e-Governance Plan (NEGP).

Digitisation of case files

• When he was the Chief Justice of Allahabad HC, Justice D Y Chandrachud had conceptualised and initiated the project to digitise approximately one crore case files in one year.
• Saving of space and preservation of old documents: This was necessary as not only was a large space required to store so many files, it was also becoming difficult to manually preserve the decades-old documents.
• Traceability: Another purpose was to ensure that these files are traceable electronically as and when required.
• It has also been observed that cases are adjourned simply because affidavits filed several years ago were not restored with the record or were not traceable.
• Once the documents are digitised and e-filed by counsels, at least the cases would not get adjourned by the courts on this account.
• Reducing the risk of missing court records: In State of Uttar Pradesh v. Abhay Raj Singh, it was held by the Supreme Court that if court records go missing and re-construction is not possible, the courts are bound to set aside the conviction.
• Saving of time: With digitisation, it will take much less time for the lower courts to transmit the records as and when called for.
• The lawyers benefit because they or their staff are no longer required to visit the reporting sections or other sections of the court to know about the status of their cases.
• This has been sought to be implemented by the e-Committee of the Supreme Court by issuing directions to ensure that e-filing of cases/petitions by state governments in all matters be made mandatory from January 1, 2022.

Scope for virtual hearing in certain cases

• Cases related to matrimonial issues and domestic violence bounced cheques, motor accident compensation referred to mediation centres and lok adalats could be included in the list of cases fit for disposal through the virtual hearing.
• The hearing of matrimonial cases through video-conferencing was approved by the Supreme Court in the matter of Krishna Veni Nagam v Harish Nagam (2017).
• The direction was short-lived and a coordinate bench of the Supreme Court in the case of Santhini v Vijaya Venkatesh (2018) referred the matter for reconsideration before a larger bench.
• Virtual hearings cannot be a substitute for physical court hearings in all cases.
• However, in appropriate cases and certain categories of cases as identified by the court administration in consultation with the members of the Bar, virtual hearing should be made mandatory.

Live streaming of cases

• In 2018, the Supreme Court allowed the live-streaming of cases of constitutional and national importance on the basis of the judgment in Swapnil Tripathi.
• Step towards transparency: The livestreaming of court proceedings is a step towards ensuring transparency and openness.
• While several reservations were expressed against it, the Gujarat HC in July 2021 became the first court in the country to livestream its proceedings.
• Its example was followed by other HCs like Karnataka, Odisha, Madhya Pradesh and Patna.

Challenges

• Internet connectivity issues and the need for a well-equipped space where lawyers can conduct their cases are some of the major problems requiring attention.
• Political will and the support of judges and lawyers are also necessary.
• Awareness and training: Judges, court staff and lawyers are not well-versed with digital technology and its benefits.
• The need of the hour is for them to be made aware of these and receive adequate training.

Conclusion

Adoption of technology will bring drastic changes in the field of law and will transform the Court system.

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Context

Departures from substantive and procedural justice need deep scrutiny as the fallout could severely imperil governance.

Judicial corruption in India in lower judiciary

• According to Transparency International (TI 2011), 45% of people who had come in contact with the judiciary between July 2009 and July 2010 had paid a bribe to the judiciary.
• The most common reason for paying the bribes was to “speed things up”.
• The Asian Human Rights Commission (AHRC) (April 2013) estimates that for every ₹2 in official court fees, at least ₹ 1,000 is spent in bribes in bringing a petition to the court.
• Freedom House’s ‘Freedom in the World 2016 report for India’ states that “the lower levels of the judiciary in particular have been rife with corruption” (Freedom House 2016).
• Allegations of corruption against High Court judges abound.
• Worse, there are glaring examples of anti-Muslim bias, often followed by extra-judicial killings by the police.
• Anti-Muslim bias alone may not result in erosion of trust but if combined with unprovoked and brutal violence against them (e.g., lynching of innocent cattle traders) is bound to.

Forms of judicial corruption

• Pressure and bribery: Judicial corruption takes two forms: political interference in the judicial process by the legislative or executive branch, and bribery.
• Despite the accumulation of evidence on corrupt practices, the pressure to rule in favour of political interests remains intense.
• Court officials coax bribes for free services, and lawyers charge additional “fees” to expedite or delay cases.

Case pendency

• According to the National Judicial Data Grid, as of April 12, 2017, there are 24,186,566 pending cases in India’s district courts, of which 2,317,448 (9.58%) have been pending for over 10 years, and 3,975,717 (16.44%) have been pending for between five and 10 years.
• Vacancies: As of December 31, 2015, there were 4,432 vacancies in the posts of [subordinate court] judicial officers, representing about 22% of the sanctioned strength.
• In the case of the High Courts, 458 of the 1,079 posts, representing 42% of the sanctioned strength, were vacant as of June 2016.
• Thus, severe backlogging and understaffing persisted, as also archaic and complex procedures of delivery of justice.

Understanding the substantive and procedural justice

• Substantive justice is associated with whether the statutes, case law and unwritten legal principles are morally justified e.g., freedom to pursue any religion,
• Procedural justice is associated with fair and impartial decision procedures.
• Outdated laws: Many outdated/dysfunctional laws or statutes have not been repealed because of the tardiness of legal reform both at the Union and State government levels.
• Worse, there have been blatant violations of constitutional provisions.
• The Citizenship (Amendment) Act (December 2019) provides citizenship to — except Muslims — Hindus, Buddhists, Sikhs, Jains, Parsis and Christians who came to India from Pakistan, Bangladesh and Afghanistan on or before December 31, 2014.
• But this goes against secularism and is thus a violation of substantive justice.
• Alongside procedural delays, endemic corruption and mounting shares of under-trial inmates with durations of three to five years point to stark failures of procedural justice and to some extent of substantive justice.

Conclusion

Exercise of extra-constitutional authority by the central and State governments, weakening of accountability mechanisms, widespread corruption in the lower judiciary and the police, with likely collusion between them, the perverted beliefs of the latter towards Muslims, other minorities and lower caste Hindus, a proclivity to deliver instant justice, extra-judicial killings, filing FIRs against innocent victims of mob lynching have left deep scars on the national psyche.

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Context

Recently, the Chief Justice of India, in his own mild way, protested against the attack on judges. One can understand his pain and agony, but he too knows that judges do not, and should not live in ivory towers.

Questioning and analysing actions of the judiciary

• As the judiciary is one of the pillars of democracy, and the Constitution entrusts judges with the task of protecting the constitutional rights of the people, especially the right to life and liberty, the consumer of justice has every right, and would be fully justified in critically examining, and commenting upon each and every word of the judges spoken or written, howsoever unpalatable it may be.
• It appears that it is in the above spirit that MP Shashi Tharoor, speaking in Parliament on the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill said that the judiciary had failed to stem the tide of militant majoritarianism.
• He alleged that the “judiciary’s inaction almost always favours those in power”. 
• He has raised pertinent questions, and has brought out the glaring failings of the judiciary in matters concerning the protection of the constitutional rights of citizens. 
• Pendency of important cases such as the abrogation of Article 370 of the Constitution, the Citizenship Amendment Act, electoral bonds, and many petitions under the preventive detention laws highlights this issue.

Issues in functioning of collegium system

• As regards the functioning of the collegium system, judges are transferred without any seeming justification, and in some cases re-transferred, justifying neither their initial transfer nor the re-transfer.
• Some elevations of judges raise eyebrows, while some are ignored.
• Should the collegium not be more transparent than it has been in the past in the matter of the elevation and transfers of judges?

Conclusion

Judges cannot be shielded from citizens’ questions. After all, as a consumer of justice, the citizen has a right to know.

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