Judiciary

Table Of Content
1. Independence Of Judiciary
2. Judiciary And Executive Separation of Power
3. Judicial Review, Activism, And Overreach
4. Appointment In Higher Judiciary In India
5. All India Judicial Services
6. Major Issues In The Indian Judiciary
7. Pendency Of Cases In India
8. Tribunals
9. Alternate Dispute Resolution (ADR) Mechanisms
10. Subordinate Courts, Fast Track Courts, And Other Types Of Courts
11. Criminal Justice System
12. PYQs Of Judiciary And Its Related Aspects
13. Anticipation

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 Judiciary

1. Independence Of Judiciary

Intro 1: "Judicial independence is a precious constitutional value, and any erosion of it, even
by legislation, is a matter of serious concern." : Justice J.S. Verma, former Chief Justice of
India.

Intro 2: The independence of the judiciary plays a pivotal role in preserving the rule of law. It
also safeguards the rights and freedom of individuals. This is essential for preserving the
essence of democracy within a nation.

Intro 3: According to ex-CJI N V Ramana, there is nothing more important than to “preserve,
protect and promote” the independence of the judiciary at all levels”. Judges shall not be
subject to any direct or indirect restrictions, inducements, pressure, threats, or other forms of
coercion from the executive or legislative branches.

Constitutionally Guaranteed Judicial Independence

1. Security of Tenure: Judges hold office until the age of 65 for Supreme Court judges
(Art. 124(2)) and 62 for High Court judges (Art. 217(1)).
2. Salaries and Allowances of Judges: Judges enjoy independence as their salaries,
allowances, and pensions are charged on the Consolidated Fund of India.
3. Powers and Jurisdiction of Supreme Court: Parliament may expand the powers
and jurisdiction of the Supreme Court, but cannot diminish them.
4. Power to Punish for Contempt: Article 129 empowers the Supreme Court to punish
for contempt of itself, while Art. 215 grants every High Court the same power for
contempt of itself.
5. Separation of the Judiciary from the Executive: Article 50 mandates that the state
must take measures to separate the judiciary from the executive in public services of
the state.
6. Removal of Judges: Supreme Court and High Court Judges can only be removed by
a process of impeachment for proven misbehavior or incapacity as given under Article
124(4).

Importance of Judicial Independence:

1. Ensuring Accountability and Good Governance
2. Interpretation of the Constitution
3. Upholding the Rule of Law
4. Safeguarding Individual Rights and Liberties
5. Prevention of Autocracy and Authoritarianism
6. Ensuring Checks and Balances

Judicial Pronouncements Regarding Judicial Independence:

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 1. Keshavananda Bharati v. State of Kerala (1973): Established the "basic structure"
doctrine, including judicial independence as a fundamental part of the Constitution,
protecting it from parliamentary amendments.
2. Indira Gandhi v. Raj Narain (1975): Affirmed that judicial powers cannot be curtailed
by legislation, reinforcing judicial independence in resolving electoral disputes.
3. S.P. Gupta v. Union of India (1981): Emphasized the importance of judicial
independence in the context of judges' transfers and appointments, reinforcing the
judiciary's autonomy.
4. Second Judges' Case (1993): Established the "collegium system" for judicial
appointments, reducing executive interference and ensuring judicial independence.
5. S.R. Bommai v. Union of India (1994): Highlighted the judiciary's role in reviewing
executive actions, reinforcing the system of checks and balances.
6. Third Judges' Case (1998): Clarified the collegium system, further strengthening the
judiciary's role in appointments and transfers.
7. Madras Bar Association v. Union of India (2014): Struck down parts of the National
Tax Tribunal Act, reinforcing the principle that judicial functions should not be
encroached upon by other branches of government.

Threat To Judicial Independence:

1. Appointments Process: Lack of transparency and accountability in the process of
judicial appointments, especially for higher judiciary.
2. External Influences:
a. Political Influence: Politicization of judicial appointments and transfers,
affecting the impartiality of the judiciary.
b. Executive Interference: Withholding of judicial appointments or transfers as a
tool to assert dominance over the judiciary.
c. Financial Control: Delay or denial of allocation of funds for infrastructure and
other necessary resources.
d. Social and Cultural Influences: Prejudices, biases, and societal norms
influencing judicial decision-making, particularly in sensitive cases.
e. Media Trials and Public Opinion: Sensationalized media trials and public
pressure can influence judicial proceedings, undermining judicial
independence.
3. Internal Influences:
a. Nepotism, favoritism, or groupism within the judiciary affects impartiality and
integrity.
b. Roaster System: There is opacity in the internal workings of the Court that
impacts independent decision-making. Some judges have spoken out publicly
on the opaqueness and case allocation procedures of the Supreme Court.
4. Accountability Mechanisms: Lack of effective mechanisms to hold judges
accountable for misconduct or breaches of judicial ethics.
5. Post-Retirement Appointments: Judges accepting government appointments or
political positions post-retirement may compromise their independence.

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 Steps Needed For Ensuring Judicial Independence:
1. Strengthen the Collegium System: Improve transparency and accountability within
the system for judicial appointments to minimize potential interference from other
branches of government.
2. Establish a Judicial Appointments Commission: Create an independent body with
representation from the judiciary, government, and civil society to oversee judicial
appointments, promoting balance and fairness.
3. Ensure Adequate Funding: Guarantee sufficient resources for the judiciary to
operate independently without external pressure or influence.
4. Secure Tenure and Protection for Judges: Ensure that judges have security of
tenure and protection from arbitrary removal, fostering a safe environment for impartial
decision-making.
5. Strengthen Judicial Accountability: Establish clear mechanisms for judicial
accountability that maintain independence while addressing misconduct.
6. Promote Judicial Training and Ethics: Encourage continuous training on ethics and
judicial independence to foster a culture of integrity within the judiciary.
7. Enhance Public Trust and Transparency: Increase transparency in judicial
processes to build public trust and confidence in the judiciary's independence.
8. Establish a Clear Judicial Code of Conduct: Develop and enforce a code of conduct
to maintain the highest standards of judicial integrity and independence.

Global best Practices which can be adopted in India to promote Judicial Independence
1. Selection and Appointment of Judges: Countries like Canada and the United
Kingdom have Judicial Service Commissions with a mix of judges, lawyers, and
laypeople (citizens) who vet and recommend judges for appointment. This promotes
transparency and reduces the perception of bias.
2. Independent Judicial Budget Commission: Like Brazil's National Council of
Justice, an independent commission could be established to allocate judicial budgets,
ensuring financial independence from the executive branch.
3. Judicial Performance Reviews: Singapore's system periodically reviews judicial
performance based on pre-determined criteria, focusing on efficiency and quality of
judgments, without compromising judicial independence.
4. Council of Judicial Conduct: Similar to the one in California, USA, a council could
be formed to investigate allegations of misconduct by judges and recommend
appropriate action. This ensures accountability without undue executive influence.
5. Court Transparency and Open Data Initiatives: Many countries, like New Zealand,
make court judgments and proceedings publicly accessible online. This fosters
transparency and public trust in the judiciary.

Conclusion: The expectation from the judiciary is indeed very high given the nature of its role
in the Constitution. The independence of the judiciary is meant to empower it as the guardian
of the rule of law. It is not merely for its honor, but essentially to serve the public interest and
to preserve the rule of law.

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 Judicial Supremacy and Parliamentary Sovereignty:
To strike a balance between the judiciary and the legislature, the Indian constitution uses the
following principles:
1. The doctrine of Parliamentary Sovereignty has been adapted from the British
Constitution.
2. The doctrine of Judicial Supremacy has been adapted from the American
Constitution.
3. The power of judicial review of the Supreme Court of India is narrower in scope
than the Supreme Court of the USA.
4. The Constitution of India guarantees ‘established procedure by law’ in Article 21
instead of the ‘due process of law’ provided in the American Constitution.
5. The Indian Constitution has opted for an amalgamation of Britain’s principle of
parliamentary sovereignty and the judicial supremacy of the USA.
6. The Supreme Court, on the one hand, can declare the parliamentary enactments as
unconstitutional using the power of judicial review.
7. The Parliament, on the other hand, can amend a large chunk of the Constitution using
its constituent power.

Conclusion 1: In India's democratic and diverse society, a strict separation of powers isn't
feasible. Instead, judicious overlapping of constitutional functions fosters collaborative
governance among the executive, legislative, and judicial branches, ensuring smooth
government operations.

Conclusion 2: "The function of the legislature is to make the law, the executive is to implement
the law, and the judiciary interprets the law within limits set down by the Constitution." : M.M.
Punchhi, Chief Justice of India.

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 2. Judicial Review, Activism, and Overreach

Intro 1: “Judicial review is the power of the judiciary to examine and determine the
constitutionality of legislative enactments and executive actions of the government." : A.N.Ray
Chief Justice of India

Intro 2: "The judiciary has the solemn responsibility to ensure that the acts of the other
branches of government remain within the limits prescribed by the Constitution”: Justice H R
Khanna CJI

Constitutional Provisions for Judicial Review:

1. The power of Judicial Review comes from the Constitution of India, through Article 13.
2. The provisions of Article 13 ensure the protection of fundamental rights and consider
any law “inconsistent with or in derogation of the fundamental rights” as void.
3. Under Article 13, the term ‘law’ includes any “Ordinance, order, bye-law, rule,
regulation, notification, custom or usage” having the force of law in India.
4. Examples of Judicial Review: The striking down of Section 66A of the IT Act because
it was against the Fundamental Rights guaranteed by the constitution.

Judicial Activism: Judicial activism refers to the idea that judges should actively interpret and
shape the law rather than simply applying it as it is written. This can involve interpreting the
law in a way that expands or limits certain rights or protections or that resolves legal disputes
in ways that are not explicitly provided for by the law.

Examples of Judicial Activism:

1. Kesavananda Bharati v. State of Kerala (1973): The Supreme Court ruled that the
government's power to amend the constitution was not unlimited and identified certain
"basic features" that couldn't be altered.
2. Maneka Gandhi v. Union of India (1978): The Supreme Court affirmed that the right
to personal liberty includes the right to travel abroad and held that the government
cannot restrict this right without due process of law.
3. Vishaka v. State of Rajasthan (1997): The Supreme Court issued workplace sexual
harassment prevention guidelines in the absence of specific legislation on the matter.
4. National Legal Services Authority v. Union of India (2014): The Supreme Court
recognized that transgender individuals have the right to be treated according to their
self-identified gender rather than their assigned gender at birth.

Judicial overreach: Judicial overreach occurs when a court surpasses its legal authority,
encroaching on decisions reserved for other branches of government. This can provoke
conflicts and weaken the separation of powers, a vital democratic principle.

The line between Judicial activism and Judicial Overreach is very narrow. In simple terms,
when Judicial activism crosses its limits and becomes Judicial adventurism it is known as
Judicial Overreach.

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 Potential merits and demerits of judicial activism:
Merits Demerits

Protecting individual rights: The Vishakha Unelected body: The Judiciary lacks the
case (1997) led to the Sexual Harassment of "General Will" mandate, thus requiring
Women at Workplace Act, 2013. judicial restraint over dictating legislation.
Example: Ban on liquor sale on highways
faced backlash.

Promoting the rule of law: Judicial activism Lack of expertise: The Judiciary lacks time
ensures government operates lawfully by and resources for legislation, leading to
reviewing and invalidating unlawful actions. practical difficulties. Example: Ban on BS-IV
vehicles extended multiple times.

Strengthening democracy: Judicial Against the Constitution’s Mandate:

activism prevents government abuse, Judicial Review is constitutional; legislation
promoting accountability and transparency. enactment isn't. Courts validate laws but
don't make them.

Promoting social change: In National Unaccountable: Politicians are somewhat

Legal Services Authority v. Union of India accountable to the people; judges are not
(2014), recognizing gender self-identification elected.
led to Transgender Persons Act, 2019.

Interpreting the Constitution: Judicial Judicial adventurism: In Subhash

activism interprets the Constitution for Kashinath Mahajan v. State of Maharashtra
modern issues, keeping it relevant. (2018), the court annulled Section 18 of the
Prevention of Atrocities Act, 1989.

Providing a check on other branches: The Judicial restraint is advocated when the
Keshavananda Bharati case limited judiciary unnecessarily ventures into
government power to amend the administrative domains without involving
Constitution, protecting its basic features. fundamental rights.

Examples of Judicial Overreach:

1. Shyam Narayan Chouksey v. Union of India (2016): SC mandated playing the
National Anthem in cinemas, exceeding the scope of the Prevention of Insults to
National Honour Act 1971.
2. Liquor ban (2017): SC banned liquor sales near highways, seen as overstepping state
jurisdiction and separation of powers.
3. Arun Gopal v. Union of India (2017): SC imposed restrictions on Diwali fireworks
without legal basis.
4. M.C. Mehta v. Union of India (2018): SC invalidated Rule 115(21) of Central Motor
Vehicle Rules, 1989, setting the BS-4 vehicle sales deadline.

Judicial Restraint and its importance:

Judicial Restraint is the second face of the coin. It is the polar opposite of activism and
encourages the judiciary to respect the laws or rules set out in the Constitution. With judicial

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 restraint, the judiciary has to abide by the executive who is given the sole power to legislate
for the public.

In the Divisional Manager, Aravali Golf v. Chander Hass & Anr. (2007) case, the Supreme
Court asked the subordinate courts to exercise judicial restraint. It was held that each organ
must respect other organs as per the doctrine of separation of powers. The Court also laid
down two crucial functions of judicial restraint:
● To encourage equality among the three branches by minimizing inter-branch
interference by the judiciary.
● To protect the independence of the judiciary.

The former Chief Justice of India (CJI), Justice A.S. Anand, discussed judicial restraint in a
public lecture.
● Judges must be self-disciplined while discharging their judicial functions.
● The worst result of judicial activism is unpredictability. Judges must exercise judicial
restraint so that judicial activism does not become judicial adventurism, an extreme
form of judicial activism.

To achieve judicial restraint following steps can be taken:

● Ensuring accountability: Judges must be transparent and accountable through
judicial review.
● Following code of conduct: Adherence to judicial codes ensures impartiality and
integrity.
● Increasing diversity in the judiciary: Promote inclusivity and transparency in judicial
selection to reflect community diversity.

Conclusion: To strike a balance between the two, it is important to consider the specific
context and circumstances of each case. “In a democracy, the remedy for a malfunctioning
legislature and executive must come from the people, not the judiciary.” : Justice M Katju

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 3. Appointment in higher judiciary in India

During the constituent assembly debate, B. Pocker Sahib Bahadur, an imminent lawyer,
wanted to have CJI and Chief Justices of high courts a decisive say in the appointments of
Supreme Court and High Court judges respectively. He wanted this to ensure judicial
independence from the executive and legislature. But Dr B R Ambedkar was against this move
when he said, “The dominance of the Chief Justice in the appointment of judges is a dangerous
position.” According to the Constitution, up to 1973, the President appointed the Chief Justice
of India and the remaining judges of the Supreme Court in consultation with the CJI and other
judges as he deemed necessary.

Evolution of the current system of judicial appointments:

Consensus between the Advice tendered by the CJI Govt replaced

Government and the CJI. is binding on the Collegium
Senior-most judge of the President. system with
SC to become CJI. NJAC but SC
In 1973, Justice A.N. Ray The CJI to consult with two Constitutional
superseded three other SC of his most senior Bench
judges senior to him. colleagues before declared it

1950- First Second Third NJAC

1973 Judge Judge Judge Act
Case Case Case
2014
1981 1993 1998

SC held that consultation Consultation process to

in the process of be adopted by the CJI
appointing judges does requires ‘consultation of
not require plurality judges’.
concurrence, and The CJI to consult a
instead only involves the collegium of four senior-
exchange of views. most judges of the SC.

Intro 1: Chief Justice D.Y. Chandrachud highlighted the significance of judicial appointments,
stating the Supreme Court will evaluate the top 50 judges for potential elevation. This brought
up the issue of the appointment of judges in the higher judiciary.

Intro 2: The Supreme Court noted a decline in new talent joining the judiciary due to delays
in processing High Court Collegium recommendations, sparking debate between the judiciary
and executive over the appointment of judges in higher judiciary.

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 Intro 3: Recent debates on higher judiciary appointments intensified with the passage of the
Constitution (99th Amendment) Act, 2014 and NJAC Act, 2014. However, in 2015, the
Supreme Court deemed both unconstitutional and null.

Collegium system: The Collegium system is a system for the appointment and transfer of
judges in the Supreme Court and High Court. It is not rooted in the Constitution. Instead, it has
evolved through judgments of the Supreme Court.
1. Under the system, the Chief Justice of India (CJI), along with four senior-most
Supreme Court judges, recommends appointing and transferring judges.
2. A High Court Collegium, meanwhile, is led by the incumbent Chief Justice and the
two senior-most judges of that court.
3. The government can also raise objections and seek clarifications regarding the
Collegium’s choices, but if the Collegium reiterates the same names, the government
is bound to appoint them to the post.

Merits of Collegium System:

1. Judicial Independence: The system safeguards the Judiciary’s independence by
preventing undue influence from the Executive and Legislature.
2. No scope of conflict of interest: With the Government accounting for approximately
half of all court cases, prioritizing the Executive in appointments could potentially
impact the Judiciary’s impartiality in its rulings.
3. Better Expertise: The Executive may lack the necessary expertise to determine Judge
qualifications. The Judiciary is often best positioned to assess candidates’ suitability.
4. Immunity from external pressure: Excessive Government control over the Judiciary
can expose Judges to external pressures.

Issues with the collegium system:

1. Lack of Transparency: Decisions lack transparency, raising public scrutiny.
2. Judicial Vacancies: Struggles to address stagnant vacancies, leading to case
backlog.
3. Uncle Judge Syndrom: There have been allegations of nepotism and favoritism in
the collegium system.
a. The Law Commission in 2009 also noted that nepotism and political privilege
were rife in the workings of the collegium system.
4. Old Boys Club: Overlooks several talented junior judges and advocates and prefers
practicing lawyers who are largely males and from upper castes rather than judges of
subordinate judiciary who come from diverse backgrounds.
5. Gender Representation: Inadequate representation of women undermines gender
diversity.
a. According to the Department of Justice’s website, only 107 judges, or 13% of
all HC judges, are female.
6. Checks and Balances: Excludes executive from appointment process, compromising
accountability.

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 7. Transfer Secrecy: Non-disclosure of reasons for judge transfers threatens judicial
independence.

National Judicial Appointments Commission (NJAC) Act, 2014

The National Judicial Appointments Commission (NJAC) Act, 2014 was enacted to regulate
the procedure to be followed for recommending names for appointment as Chief Justice of
India and other judges of Supreme Court and Chief Justices and judges of High Courts and
their transfers.

The NJAC’s composition includes six members:

1. The Chief Justice of India
2. The two most senior judges of the Supreme Court
3. The Law Minister,
4. and two ’eminent persons.’
5. These eminent individuals are nominated for a three-year term by a committee
comprising the Chief Justice, Prime Minister, and Leader of the Opposition in the Lok
Sabha.
a. They are not eligible for re-nomination.

Arguments in favor of NJAC:

1. Democracy is a basic structure: Democracy, which is also a basic feature of the
constitution, requires that no organ of the state, including the judiciary, enjoys absolute
freedom.
2. Non-formal and opaque Collegium system: It is a closed-door affair without a formal
and transparent system and has also been accused of nepotism.
3. Retaining Public Confidence: To retain “public confidence”, “judicial appointments”
must have some checks and balances.
4. Upholds Constitution: The Basic structure of Separation of powers and the
Independence of the Judiciary from the executive remains intact under the NJAC as
its chairperson is the CJI.

Arguments against NJAC:

1. Unconstitutional: The introduction of Article 124 A in itself violates the basic structure
of “Primacy of the CJI” as laid down in the second judges' case of 1993.
2. Culture of reciprocity: The involvement of the legislature in the appointment of judges
might lead to the creation of a culture of ‘reciprocity.’
3. Independent-minded Judges: The future judges appointed under NJAC cannot be
expected to be independent-minded. The Union Law Minister is the member of the
commission responsible for their appointment.
4. Inclusion of Eminent personalities: The NJAC Act provides arbitrary power to the
Union executive to appoint two eminent personalities to the NJAC body.
a. The applicability of veto power by the two eminent personalities was speculated
to be biased.

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 Reforms needed in the appointment procedure:
1. Reforming MoP: Involve representatives from both the executive and judiciary in
decision-making for judges' appointments.
2. Expanding eligibility: Include additional criteria for assessing merit and suitability.
a. Open invitation for eligible candidates to apply in a prescribed format.
3. Increasing diversity: Ensure adequate representation of women in judicial
appointments.
4. Increasing transparency: Maintain a list of all candidates considered.
a. Exchange all collegium opinions in writing.
b. Document and record collegium proceedings in minutes.
5. Law Commission (214th Report) recommendations:
a. Advocate for equal roles of judiciary and executive in selecting judges.
b. Suggest appointment of distinguished jurists as per Article 124(3).
c. Call for merit-based appointments from the Bar and other sources.

Comparing International Judicial Appointment Systems:

1. In the UK, there exists a Judicial Appointments Commission (JAC) comprising 15
members.
a. This commission is responsible for shortlisting individuals to fill judicial positions
in various courts and tribunals.
2. In the USA, the President holds the authority to nominate judges for federal positions
a. These nominations are presented to the Senate for approval.
b. The Senate, specifically its Judiciary Committee, conducts confirmation
hearings for each prospective nominee.
c. The American Bar Association plays a crucial role by systematically assessing
the qualifications of judicial nominees and providing its evaluation to the Senate
Judiciary Committee.
3. Russia employs a collegium system for the selection, appointment, and promotion of
judges. This system also handles matters related to judges’ discipline.
a. The Collegium of Judges in Russia is formed through an election process.
Representatives from the judicial community elect judges to be part of this
collegium.
b. Notably, the Russian President has the authority to reject a recommended
candidate for a judgeship, and this rejection can be made without providing any
specific reasons.
4. In France, the executive branch (the government) plays a significant role in the
appointment of judges.
a. ‘The High Council of the Judiciary,’ a body consisting of 20 members primarily
from the judiciary, is appointed by the head of state, who is the President. This
council sends recommendations to the President regarding judicial
appointments.

Conclusion 1: The criticisms over the recommendations of the collegium highlight the need
for collective leadership and transparent decision-making in the Supreme Court.

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 Conclusion 2: There is a need to establish a participatory process with adequate safeguards
to judicial independence while guaranteeing judicial primacy but not judicial exclusivity.

Conclusion 3: NJAC's Act may be amended to include safeguards that would make it
constitutionally valid, as well as reorganized to ensure that majority control remains with the
judiciary.

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 4. All India Judicial Services

Recently, during her inaugural address at the Supreme Court’s Constitution Day celebration
(November 26), the President of India called for an “all-India judicial service” (AIJS) to recruit
judges. According to the President, AIJS will help make the judiciary diverse by increasing the
representation of marginalized social groups.

Article 312 of the Constitution provides for the establishment of All India Judicial Service
(AIJS), which shall not include any post inferior to that of a District Judge. The constitutional
provision enables the creation of the AIJS at the District Judge level.

Discussions around All-India Judicial Service:

1. The idea for the All-India Judicial Service was first proposed by the 14th Report of the
Law Commission of India in 1958.
2. Under an All-India Judicial Service, district judges can be recruited centrally through
an all-India examination and allocated to each State along the lines of the All-India
Services such as IAS and IPS.
3. Currently, district judges are appointed by the state governor on the advice of the chief
justice of the high court of the concerned state.

Arguments for All-India Judicial Service:

1. Judge-to-Population Ratio: The Law Commission recommended 50 judges per
million population, but India had only 10.50 judges (then).
a. Currently, India has 21 judges per million population, while the U.S. and the
U.K. have 107 and 51 judges per million people, respectively.
b. As of July 2023, the working strength of the subordinate judiciary was 19,858
against the sanctioned strength of 25,246.
2. Pendency of Cases: In 2023, total pending cases across all levels exceeded 5
crores, with over 85% pending in district courts.
a. More than one lakh cases are pending for over 30 years.
b. A 2012 report projected 15 crore cases in 30 years, requiring 75,000 judges.
3. Absence of Career Growth: Less than 25% of judicial officers have a chance of being
elevated as High Court judges. The majority retire as district judges.
a. An AIJS can offer a younger talent pool for the High Courts and the Supreme
Court.

Issues with setting up the All-India Judicial Service:

1. District Judges' Independence: The High Court's role ensures independence in
District Judges' appointment, transfer, and removal from State Governments.
2. 116th Report of Law Commission Recommendation: Suggests a National Judicial
Service Commission for AIJS appointments, with retired and sitting judges, bar
members, and legal academics.
3. Centralization of Power Concern: The creation of such a body may centralize power
excessively.

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 4. Representation of Marginalized Communities: Concerns arise over opposition from
communities benefiting from State quotas.
a. Different classification of OBCs by Central and State governments complicates
representation.
5. Existing Reservation: Many States already reserve posts for marginalized
communities and women.
6. Language Barrier: AIJS recruitment may lead to judges unfamiliar with local
languages, which is critical for court proceedings dictated by respective State
governments.

Way Forward:
1. Over decades, several States and High Courts have opposed the idea of establishing
an All-India Judicial Service.
2. Hence, before the Parliament establishes an AIJS, there is a need to build a broad
consensus between the Centre, States, and the Judiciary..
3. In the meantime, attention should be focused on implementing more direct solutions
to address the problems of the Indian judiciary.

In the Government's view, a properly framed All India Judicial Service is important to
strengthen the overall justice delivery system. This will give an opportunity for induction of
suitably qualified fresh legal talent selected through a proper all-India merit selection system
as well as address the issue of social inclusion by enabling suitable representation to
marginalized and deprived sections of society.

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 5. Major Issues In The Indian Judiciary
1. Shortage of Judges: There is a shortage of judges in subordinate courts in India, with
around 35% of posts remaining unfilled.
a. According to the Supreme Court’s Centre for Research and Planning, only
20,580 judges are working in the Supreme Court, the high courts, and district
courts.
2. Pendency of Cases: The problem of pendency is particularly acute at the lower levels
of the judiciary, where the majority of cases are filed and where the shortage of judges
is most severe.
a. According to the Supreme Court’s Centre for Research and Planning, in
October 2023, there were over five crore pending cases across all higher and
subordinate courts in India.
3. Poor Condition of Resources:
a. Infrastructure resources: Insufficient budget allocation results in poor
infrastructure for the judiciary in India, spending only 0.09% of its GDP on
maintaining the judicial infrastructure.
i. According to a survey conducted by the office of CJI only 27% of
courtrooms in the subordinate judiciary have computers on judges’ dais
while there are still 10% of courts that do not have access to proper
internet facilities.
ii. 22% of trial court complexes do not have toilet facilities for women,
while 16% don’t have such facilities for men.
b. Human Resources: Lack of efficient secretarial and clerical assistance,
shortage of public prosecutors, etc., also add to the problem.
i. The Supreme Court in Malik Mazhar Sultan v. U.P. Public Service
Commission prescribed a schedule for the regular recruitment of judges
in the district judiciary.
1. For the District Judge (Direct Recruitment) exam, only Nagaland
(106 days), Odisha (132 days) and Andhra Pradesh (142 days)
completed the recruitment process within the apex Court’s
timeline
2. Punjab & Haryana and Jammu & Kashmir took 1,270 and 1,173
days respectively to complete their Higher Judicial Services
recruitment processes.
ii. 84.5% of the total 168 seats reserved for the ST category remain
unfilled in the six States examined in the report.
iii. The court staff also face problems such as low salaries, poor training,
and high workload.
4. Lack of gender diversity: For instance, there have been only 11 women judges on
the Supreme Court since its inception, and no women Chief Justices.
a. According to data from the National Judicial Data Grid, women make up
approximately 11% of the total number of judges at the district court level and
around 8% at the high court level.
b. According to the National Judicial Data Grid, only 15% of advocates are
women.
c. Only 2% of the State Bar Council’s elected officials are women.
d. The current Bar Council of India has no female members.

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 5. Undertrials: According to the ‘Prison Statistics India’ report published by the National
Crime Records Bureau (NCRB) in 2023, there were as many as 4,34,302 undertrials.
6. Procedural issues: These includes delay in service of summons/notices to
accused/defendants/respondents by process servers and police.
7. Outdated Procedural laws: The Code of Civil Procedure 1908, Code of Criminal
Procedure 1973, and The Evidence Act 1872 are all outdated about the current needs
of society.
a. They enable motions for adjournments which are routinely sought and given.
As a result, litigation has become a prolonged, costly, uncertain, rigid process.
8. Burden of extrajudicial work: Burdening of Judges with extra-judicial work (like Legal
Services) diverts their focus and time from judicial work.

Impact of these issues on the overall Justice delivery system:

1. Delays in the administration of justice: A large backlog of cases waiting to be heard
can result in delays in the resolution of cases, which can take many years or even
decades.
2. Negative impact on justice quality: Judges may not have the time or resources to
fully consider the merits of each case due to paucity of time. This can lead to decisions
that are not fully informed or that do not adequately address the issues at hand.
3. Financial burden on litigants: Prolonged litigation can be costly for litigants, as they
have to bear the expenses of prolonged court proceedings.
4. Negative impact on the economy: These issues in the justice system can also hurt
the economy, as businesses may be delayed or prevented from moving forward due
to unresolved legal disputes.
5. Loss of faith in the legal system: Long delays, lack of legal aid, etc., can lead to a
loss of faith in the legal system among the general public.

What are some of the significant reforms in the Indian Judicial system?
1. National Mission for Justice Delivery and Legal Reforms (2011): Aims to reduce
delays and arrears, and enhance accountability.
2. Alternative Dispute Resolution (ADR): Includes Lok Adalats, Gram Nyayalayas, and
Online Dispute Resolution.
3. Commercial Courts Act 2015: Mandates pre-institution mediation for commercial
disputes.
4. Gram Nyayalaya Online Portal: Allows states/High Courts to upload Gram Nyayalaya
data.
5. Fast Track Courts: Expedite cases involving heinous crimes, and vulnerable groups.
6. Leveraging Information and Communication Technology (ICT):
a. Virtual courts for remote proceedings, e-Sewa Kendras for e-filing.
b. National Judicial Data Grid (NJDG): Provides case status information to
lawyers and litigants.
c. National Service and Tracking of Electronic Processes (NSTEP):
Facilitates serving and issuing summons electronically.
d. Secure, Scalable & Sugamya Website as a Service (S3WAAS) Website: A
divyang-friendly website for e-committee available in multiple languages.

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 e. Virtual Justice Clock: Displays key statistics of the justice delivery system at
the court level.
7. Legal Services Authorities: Ensure equal access to justice despite social and
economic barriers.

Reforms needed in the Indian judiciary:

1. Reducing pendency: LCI (2009) recommended that:
a. The maximum Strength of the Judges in the Supreme Court should be
increased.
b. The need to divide the Supreme Court into a Constitution Bench at Delhi and
Cassation Benches in four regions at Delhi, Chennai/Hyderabad, Kolkata, and
Mumbai to ensure timely Justice delivery.
c. Constitutional provisions need a change to enhance the retirement age of High
Court and Supreme Court Judges by at least three years.
d. Increasing the number of Judges to maintain a healthy Judge-population ratio
- 50 per million
2. Optimum time utilization: LCI (2009) recommended:
a. Considering the staggering arrears, vacations in the higher judiciary must be
curtailed by at least 10 to 15 days and the court working hours should be
extended by at least half an hour.
3. Judicial Impact Assessment: Make judicial impact assessment compulsory
whenever new laws are made.
4. Increase the use of the ADR mechanism and Plea Bargaining: Building awareness
among litigants and prospective litigants about ADR processes and encouraging out-
of-court settlements.
5. All India Judicial Services (AIJS): It aims to create a unified and centralized system
for the recruitment and career progression of judicial officers in the country.
6. Judicial Management Cadre: A Judicial Management Cadre to manage judiciary
administration at all levels can be established.
7. National Judicial Infrastructure Authority: Acc to Justice N V Ramanna, a National
Judicial Infrastructure Authority should be created for the standardization and
improvement of judicial infrastructure.
8. Simplifying procedural laws: Simplify procedural laws for faster case resolution and
clarify substantive laws by repealing/amending outdated/unworkable ones.
9. Improve the functioning of Fast Track Courts: A dual strategy is required to
enhance court efficiency: appointing skilled judges and staff, and restructuring
procedures.
10. Setting up an independent mechanism for legal services: Legal services can be
entrusted to the Executive Wing of the Government for implementation, in consultation
with the High Court/other stakeholders, by an appropriate amendment to the Legal
Services Authorities Act, 1976.
11. Timely Justice to Undertrials: Undertrials can be provided speedy justice by
providing adequate opportunities for bail.
12. Increase representation of women in the Judicial System: According to ex-CJI N
V Ramana “the presence of women as judges and lawyers, will substantially improve
the justice delivery system.”

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 13. Legal Education: Improving Legal Education and providing for compulsory
apprenticeship to members of the Bar.
14. Research and Training Centre: A Research and Training Centre for improving
legislative drafting, conducting Judicial Impact Assessments, and training Law Officers
of the Government can be established.
15. Prompt Investigation and Prosecution: The functioning of investigating agencies
(Police) and prosecuting agencies (Directorate of Prosecution) should be improved to
ensure proper and timely investigation and prosecution.

Conclusion 1: Judicial challenges need to be tackled at multiple levels, instead of a single-

pronged approach of merely looking at appointments or more courts.

Conclusion 2: Judicial independence and Judicial accountability need to be balanced well. It

requires coordination and cooperation between the government, the Judiciary, the Bar, and
the general public. Each is a stakeholder and is also responsible for ensuring that the system
works.

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 6. Pendency Of Cases In India
Intro 1: Justice delayed is justice denied. This maxim has become an unfortunate reality in
India due to the massive pendency of cases at all levels of the judiciary. Currently, there is a
considerable backlog in the judicial system, with a staggering 80,000 cases awaiting resolution
before the Supreme Court.

Intro 2: According to the National Judicial Data Grid, more than 4.7 crore cases are pending
at various stages and forums of the Indian judiciary. The sheer volume of pending cases not
only highlights the strain on the existing judicial infrastructure but also underscores the need
for a more efficient and streamlined legal process.

Current trend in case pendency:

1. Pendency is critical at lower judiciary levels due to judge shortages.
2. Regional Variations: Bihar has over 5 million pending cases, while Uttar Pradesh has
over 6 million.
3. Steady Growth: Pendency across all courts grew by 2.8% annually from 2010 to
2023.
a. At current disposal rates, it would take 1.3 years for the Supreme Court and 3
years each for High Courts and subordinate courts to clear pending cases if no
new ones were filed.
4. Pendency in Tribunals and Special Courts: 21,259 cases were pending at the
National Company Law Tribunal (NCLT) by the end of 2020.
5. Supreme Court Cases: The Supreme Court disposed of 36,164 out of 37,777 cases
filed in 2023.
a. However, over 4,000 cases pending before the Supreme Court are over a
decade old according to the National Judicial Data Grid.

Reasons for the high pendency of cases in the Indian Judiciary:

1. Shortage of judges: This leads to delays in the resolution of cases, as there is a
backlog of cases waiting to be heard.
a. According to the Law Ministry, India has approximately 21 judges per million
population, far below the global average of 50 judges per million people.
2. Executive Delay in Appointment: The recommendations made by the collegium for
the appointment of judges are often delayed by the government.
3. Absence of Judges: The Supreme Court judges often have to attend various official
and non-official functions, which take up their valuable time and affect their availability
for hearing cases.
a. According to a report by the Law Commission of India, the Supreme Court has
193 working days a year for its judicial functioning.
4. Lack of infrastructure: Many courts in India lack the necessary infrastructure and
resources to deal with the many cases that are filed. This can contribute to delays in
the resolution of cases.
a. For instance, the Supreme Court has only 17 courtrooms, which is not enough
to accommodate all the benches and cases

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 5. The government is the biggest litigant: The Law Commission of India, in its 230th
report, noted that the government is the biggest litigant in the system.
a. According to the Legal Information Management Briefing System (LIMBS),
there are 6,20,000 cases involving the government pending before the court
system.
6. Complexity of cases: Some cases are complex and require a lot of time and
resources to be resolved. This can contribute to delays in the resolution of cases.
7. Procedural delays: There are often delays in the legal process due to procedural
issues, such as the inability to locate witnesses or delays in obtaining evidence.
8. Appeals from High Courts: It was reported that appeals in the top court mostly
comprised matters from High Courts that are closer to the Supreme Court.
a. That is, appeals from the Punjab and Haryana High Court, Allahabad High
Court, and Delhi High Court formed the major chunk of matters.
9. Frivolous Cases: The Supreme Court is the highest court of appeals in India.
However, this power is often misused by litigants who file frivolous or vexatious
appeals in the Supreme Court.
a. According to a report by the PRS Legislative Research, the Supreme Court
admitted 86% of the Special Leave Petitions (SLPs) filed in 2022.
i. This is significantly higher than the 25% admission rate recommended
by the Law Commission of India in its 2009 report on access to justice.
10. Increased legal awareness: Increased legal awareness has increased the number of
cases filed.

Impact of pending cases:

1. Case backlog: A backlog of cases leads to long delays in resolution, spanning years
or decades.
2. Quality of justice: Judges lack time and resources to fully consider cases, impacting
decision quality.
3. Court system burden: High case volume burdens courts, hindering prompt case
resolution.
4. Loss of trust: Prolonged delays erode public trust in the legal system.
5. Financial strain: Litigants face financial burdens from prolonged litigation.
6. Injustice to victims: Witnesses forget facts, and victims lose faith due to delays.
7. Economic impact: Delayed justice hampers business operations, affecting the
economy.

Steps Taken To Reduce These Pendency:

1. Virtual court system: Court proceedings are conducted via videoconferencing,
ensuring easy access to justice and reducing case backlogs.
2. Action plan for Government Litigation: The Department of Justice released a plan
to address Government Litigation, responding to the fact that 46% of pending cases
involve the government.
3. Legal Information Management Briefing System (LIMBS): Connects 55 ministries
for litigation management.
4. e-Courts portal: Enhances access to justice for all stakeholders through a
comprehensive online platform.

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 5. E-filing: Allows electronic submission of court cases, saving time and money,
eliminating physical presence, and reducing paper usage.
6. e-Payment of court fees and fines: Enables online payments, reducing reliance on
cash, stamps, and cheques, integrating with state-specific vendors for convenience.
7. Interoperable Criminal Justice System (ICJS): Facilitates seamless data transfer
among criminal justice pillars like courts, police, jails, and forensic labs.
8. Fast-track courts: Government-initiated courts expedite justice delivery and reduce
case pendency.
9. Alternative Dispute Resolution (ADR): Mechanisms like Lok Adalats, Gram
Nyayalayas, and Online Dispute Resolution ensure timely justice.

Way Forward:
1. Split the Supreme Court into Two Divisions: Proposed by the Tenth Law
Commission to create Constitutional and Legal Divisions.
a. Only constitutional law issues would go to the Constitutional Division.
2. Establish National Court of Appeal for SLPs: Recommended in Bihar Legal Support
Society v. Chief Justice of India, 1986.
a. Supreme Court would handle only constitutional and public law-related matters.
3. Establish Regional Benches of Supreme Court: Recommended by 229th Law
Commission Report, 2009. Four regional benches were suggested for non-
constitutional issues.
4. Increase the number of judges: Recommended by the Law Commission of India
(1987) and the Standing Committee on Home Affairs (2020). Aim for 50 judges per
million people.
5. Expand alternative dispute resolution methods: Promote mediation and arbitration
for faster dispute resolution.
6. Streamline legal process: Utilize technology, like e-court projects, to manage cases
efficiently.
7. Strengthen enforcement of court orders: Ensure compliance to reduce case
backlog.
8. Increase number of Work Days: The Malimath Committee suggests 206 workdays
and reduced vacation periods.
9. Establish Final Court of Appeal and Permanent Constitution Bench: Separate
cases under constitutional authority from appellate and review cases.
10. Establish Dedicated Authority for Infrastructure: Proposed by former CJI NV
Ramanna to improve judicial infrastructure. National Judicial Infrastructure Authority of
India (NJIAI) suggested.

Conclusion 1: Speedy Justice is not only a fundamental right but also a prerequisite for
maintaining the rule of law and delivering good governance. In its absence, the Judicial system
ends up serving the interests of the corrupt and the law-breakers.

Conclusion 2: The Supreme Court's overwhelming case backlog highlights the need for
urgent reforms. Measures such as increasing workdays, establishing regional benches, and
exploring specialized courts can enhance efficiency and accessibility. Embracing these
reforms can create a more responsive and effective judiciary in India.

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 Conclusion 3: There should be wide introspection through extensive discussions, debates,
and consultations to identify the root causes of delays in our justice delivery system and
provide meaningful solutions to improve the justice delivery system in India.

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 7. Tribunals
A tribunal is a quasi-judicial institution that deals with the resolution of disputes about
administration, taxation, environment, securities, etc.

Salient features of Tribunals in India:

1. Tribunals were established to provide swift, cost-effective, and decentralized resolution
of disputes across various issues.
2. It performs several functions like adjudicating disputes, determining rights between
contesting parties, making an administrative decision, reviewing an existing
administrative decision, and so forth.
3. Principles of natural justice: Tribunals in India follow the principle of natural justice,
which requires that all parties to a legal proceeding be given a fair and impartial hearing
and that no person should be a judge in their own cause.
4. Not bound by Civil Procedure Code (CPC): Unlike traditional courts, they are not
bound by the strict rules of procedure and evidence set out in the CPC.
5. Subject expertise: A significant part of tribunals is comprised of members who have
specialized expertise in the subject matter over which they have jurisdiction.
6. Quasi-judicial powers: Tribunals can hear evidence, examine witnesses, make
findings of fact, apply the law to the facts, and make binding decisions.
7. Appellate authority: The decisions of tribunals can be appealed to a higher court. The
decision of tribunals in the first instance can be appealed to the appellate authority
and, later, to the High Courts and Supreme Court.
8. Time-bound resolution: The adjudicatory process in tribunals is usually faster than
the traditional court system, which helps resolve disputes more quickly and efficiently.

The tribunals in India are broadly classified as follows:

1. Administrative Tribunals
a. Central Administrative Tribunal (CAT)
b. State Administrative Tribunals (SATs)
c. Joint Administrative Tribunal (JAT)

2. Other Tribunals
a. National Green Tribunal(NGT)
b. Foreigner Tribunals
c. National Company Law Tribunal(NCLT)
d. Telecom Disputes Settlement and Appellate Tribunal(TDSAT)

Positive role played Tribunals in India

1. Faster Resolutions: Tribunals resolve cases much faster than regular courts, with an
average disposal time of about 2.5 years, compared to 6.5 years in regular courts,
according to the Ministry of Law and Justice.
2. Reduced Backlog: By handling specialized cases, tribunals help reduce the workload
on regular courts. As of December 2021, India had over 50 central and specialized
tribunals, easing the burden on traditional judiciary.

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 3. Cost-Effective and Accessible: Tribunals offer simplified procedures and lower
costs, making justice more accessible and affordable for the public.
4. Specialized Expertise: Tribunals like the National Green Tribunal (NGT) are staffed
by experts, enabling informed decisions on complex issues such as environmental
protection. The NGT banned waste disposal within 500 meters of the Ganga River and
mandated waste treatment facilities, significantly contributing to the Clean Ganga
initiative.
5. Better Clarity on Complex Issues: The Income Tax Appellate Tribunal (ITAT)
resolved complex tax disputes, such as the Vodafone transfer pricing case, providing
clarity in tax law interpretation.
6. Ease of Doing Business: The National Company Law Tribunal (NCLT) played a key
role in implementing the Insolvency and Bankruptcy Code, facilitating successful
resolutions in major corporate insolvency cases like Essar Steel and Jet Airways.

Issues with Tribunals:

1. Conflict of Interest: The government, a major litigant, controls tribunal appointments
and removals.
2. Tribunalization of Justice: Tribunals weaken regular courts, violating the separation
of powers.
3. Lack of Independence: The Executive decides tribunal members' salary, and tenure,
impacting independence.
4. Overlapping Jurisdiction: Some tribunals have overlapping jurisdiction, like
COMPAT and NCLT.
5. Jurisdiction of High Courts: Tribunals bypassing High Courts' jurisdiction criticized,
partly resolved in the Chandra Kumar Case (1997).
6. Administrative Concerns: Non-uniformity in appointment processes, qualifications,
and resources hinders efficiency.
7. Pendency: High pendency in tribunals, e.g., CAT has 44,333 cases pending according
to the 272nd Law Commission Report.
8. Persisting Vacancies: In 2021, the Supreme Court noted 20 presiding officer
vacancies, 110 judicial member vacancies, and 111 technical member vacancies
across various tribunals.

Provisions of the new rules for tribunals passed in 2020:

The 'Tribunal, Appellate Tribunal, and Other Authorities (Qualifications, Experience and other
Conditions of Service of Members) Rules, 2020' were framed by the Ministry of Finance. These
rules replace the 2017 Rules, which were struck down by the Supreme Court, which directed
the government to re-formulate the rules in conformity with the principles delineated by the
court.

Provisions of the New Rules:

1. These apply to 19 Tribunals, including Central Administrative Tribunals, Income Tax
Appellate Tribunals, Customs, Excise, Service Tax Appellate Tribunals, etc.
2. Foreigner Tribunals are not covered.
3. Appointment: Appointments to the above Tribunals will be made by the Central
Government on the recommendations of the "Search cum Selection Committee"
composed of

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 a. The Chief Justice of India (CJI) or a judge nominated by the CJI
b. President/chairperson of the concerned tribunal
c. Two government secretaries from the concerned ministry/department.
4. Removal: The search Cum Selection Committee has the power to recommend the
removal of a member and also to conduct inquiries into allegations of misconduct by a
member.
5. Qualifications for tribunal members: Only persons having judicial or legal
experience are eligible for appointment.
6. Term: Rules also provide a fixed term of four years to the Tribunal members.
7. Independence: The condition in the 2017 Rules (which were set aside by the Court)
that the members will be eligible for re-appointment has also been dropped in the 2020
Rules.

Reforms needed for Tribunals:

1. National Tribunal Commission: The 74th report of the Parliamentary Standing
Committee on Law recommended the creation of a National Tribunal Commission
(NTC) to regulate issues linked with tribunals such as overseeing the selection
process, setting eligibility criteria for appointment, etc.
2. Timely appointments: It is important to ensure that appointments to tribunals are
made promptly to avoid delays in justice delivery.
3. Independence and autonomy: Appointment, removal, and terms of service of tribunal
members must be free from political interference.
4. Rationalization of tribunals: There are currently many tribunals in India, leading to
duplication of functions and overlapping jurisdictions. A rationalization of tribunals
could help to streamline their functioning and make them more effective.

Tribunals hold immense significance in the Indian judicial system by providing specialized and
efficient dispute resolution. The process of tribunalisation has lightened the load on traditional
courts, improved expertise, and sped up the justice delivery process. However, it is crucial to
address the challenges and implement reforms to ensure the continued effectiveness of
tribunals in India's evolving legal landscape.

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 8. Alternate Dispute Resolution (ADR) Mechanisms

Intro 1: "Alternative Dispute Resolution (ADR) is not an alternative but the mainstream for
resolving disputes in India." : ex- CJI N. V. Ramana. Recently Chhattisgarh established Lok
Adalats in jails all around the State, a first for India.

Intro 2: ADR resolves disputes through negotiation and discussion, leading to amicable
settlements between parties. This is an attempt to establish an alternative mechanism other
than the traditional methods of dispute resolution.

Types of ADR:
1. Arbitration: Binding decision by an arbitral tribunal.
2. Conciliation: Non-binding assistance in reaching a mutual settlement.
3. Mediation: Facilitation of mutual resolution by an impartial mediator.
4. Negotiation: Direct discussion for a negotiated settlement.

Need for ADR:

1. Delays in Judiciary: The increasing number of court filings has exacerbated delays,
highlighting the necessity for ADR methods.
2. Confidentiality and Privacy: Dispute resolution typically occurs in private settings,
ensuring confidentiality.
3. Viability and Efficiency: ADR proves to be more economically viable and efficient
compared to conventional trials.
4. Procedural Flexibility: Flexible procedures save time and money, and alleviate the
stress associated with traditional trials.
5. Access to Specialized Expertise: ADR allows for the inclusion of specialized
expertise through arbitrators, mediators, conciliators, or neutral advisers.
6. Direct Control over Outcomes: ADR offers greater control over the resolution
process and its outcomes compared to conventional litigation.

Status of ADR in India:

1. Legal Framework:
a. Statutory Support: The Legal Services Authorities Act of 1987 encourages
out-of-court settlements.
b. Plea Bargaining: Introduced in the Code of Criminal Procedure in 2005,
allowing pre-trial negotiations.
c. Lok Adalats: Informal negotiation settings, issuing final and binding orders.
2. Other Legislative Measures:
a. Arbitration and Conciliation Bill: The 2021 bill aims to prevent misuse and
replace a previous ordinance.
b. Mediation Bill Amendments: Under review since July 2022, seeking
substantial changes.

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 3. Online Dispute Resolution (ODR): The NITI Aayog in its recently released report -
The Future of Dispute Resolution discusses the concept of Online Dispute
Resolution (ODR).
a. ODR refers to the usage of ICT tools to enable parties to resolve their
disputes.
b. In its first phase, ODR shares its fundamentals with ADR Mechanisms of
negotiation, mediation, and arbitration.
4. New Delhi International Arbitration Centre Act of 2019: The NDIAC, a nationally
significant institution by the statute, will be established under the Act to handle
arbitration, mediation, and conciliation cases.
5. Additional arbitral tribunals:
a. The Mumbai Centre for International Arbitration, the Indian Council of
Arbitration (ICA), and the Nani Palkhivala Arbitration Center are domestic
arbitration organizations.
b. International organizations like the International Arbitration Center and the
International Chamber of Commerce.
6. Niranjan Bhat Committee: The Supreme Court has appointed it to draft legislation
granting legal validity to mediated resolutions.
a. The committee will propose a code of conduct for mediators, with
recommendations forwarded to the government via the high court.

Challenges in Alternate Dispute Resolution (ADR) in India:

1. Awareness Gap: Limited awareness among the populace about the existence and
benefits of ADR mechanisms.
2. Enforcement Issues: Difficulty in enforcing ADR agreements and decisions, leading
to disputes over compliance.
3. Lack of Standardization: Absence of standardized procedures and practices across
ADR methods and institutions.
4. Resource Constraints: Insufficient infrastructure and trained professionals to support
widespread ADR adoption.
5. Cultural Resistance: Cultural preference for adversarial litigation over collaborative
ADR processes.
6. Judicial Interference: Potential for excessive judicial intervention, undermining the
autonomy and effectiveness of ADR proceedings.

Way Forward:
1. Government Support and Promotion: Governmental involvement is crucial in
promoting mediation by:
a. Actively advocating for its benefits.
b. Recruiting qualified mediators.
c. Establishing procedural guidelines and legal protections.
2. Governmental Engagement as Litigants: Encourage union and state governments
to embrace mediation, alleviating pressure on the court system and nurturing a
mediation culture.

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 3. Judicial Role in Facilitation: Courts should support mediation centers by providing
infrastructure, resources, and oversight, leveraging their authority in each jurisdiction.
4. Educational Campaigns: Raise awareness about the benefits of mediation,
emphasizing its ability to foster amicable settlements.
5. Dual Strategy for Engagement: Employ a two-pronged approach to engage litigants
and encourage them to consider mediation as an option.
6. Court Notification Systems: Ensure court notice boards prominently showcase
successful mediation cases, informing litigants about alternative dispute resolution
pathways.
7. Legal Profession Involvement: Attorneys should integrate mediation into their
practices, actively promoting its use as a dispute resolution tool.
8. Utilizing Digital Platforms: Embrace digitization to facilitate online mediation as an
alternative to traditional in-person processes.

Conclusion 1: The future of dispute resolution revolves around ICT innovations and new
ideas to make dispute resolution efficient and accessible for every section of society. In a
country like India, where the court system is overloaded, Alternative Dispute Resolution
mechanisms offer a ray of hope for timely justice.

Conclusion 2: ADR in India embodies the spirit of cooperation over confrontation, fostering a
culture of resolution rather than litigation. The success of Alternative Dispute Resolution lies
in its ability to empower individuals to take ownership of their conflicts and find solutions
outside the courtroom.

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 9. Fast Track Courts in India

Intro 1: Recently, the Union Cabinet has approved the continuation of Fast Track Special
Court (FTSCs) for three more years till 2026. Initially commenced in October 2019 for one
year, the scheme was extended for an additional two years until March 2023.

Intro 2: A Fast-track court is a special type of court that is established to expedite the judicial
process and deliver justice on time. Fast-track courts are usually set up for cases that involve
serious crimes, such as rape, murder, terrorism, etc., or cases that have a large public interest,
such as corruption, fraud, etc.

Intro 3: The Central Government enacted the Criminal Law (Amendment) Act in 2018, which
introduced stricter punishments, including the death penalty for rape offenders.
Subsequently, the Fast Track Special Courts (FTSCs) were set up to ensure the swift
dispensation of justice for such cases.

Various Types of Fast Track Courts in India:

1. Special Courts for Speedy Trials: Expediting trials for particular categories of cases,
such as those related to crimes against women, children, or senior citizens.
2. Designated Fast Track Sessions Courts: Designated within existing district court
structures to exclusively handle fast track cases.
3. Exclusive Fast Track Courts (EFTCs): Standalone courts with dedicated
infrastructure and personnel to solely handle fast track cases.
4. Mahila Courts (Women's Courts): Addressing cases related to crimes against
women and ensure swift justice delivery.
5. Special Courts for Economic Offences: Expeditiously resolving cases related to
economic offenses, financial frauds, and corruption.
6. Juvenile Justice Boards: Deal with cases involving juveniles accused of committing
offenses and strive to expedite proceedings to ensure timely justice for minors.
7. Family Courts: Resolving disputes related to marriage, divorce, child custody, and
matrimonial matters on a fast track basis to minimize prolonged litigation.

Importance of Fast Track Courts:

1. Swift Justice Delivery: Fast track courts prioritize speedy resolution, ensuring timely
justice.
2. Specialized Handling: They specialize in specific case categories, allowing for
focused adjudication.
3. Reduced Backlogs: By expediting trials, they help reduce pending cases in the
judicial system.
4. Enhanced Access: They improve access to justice, especially for marginalized
groups.
5. Crime Deterrence: Swift resolutions act as a deterrent against criminal activities.
6. Accountability and Transparency: They promote accountability and transparency in
the judicial process by ensuring swift and fair resolution of cases.

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 7. Special Emphasis on Victims' Rights: Fast track courts prioritize the rights and
interests of victims, providing them with prompt relief and protection against injustice.
8. Effective Utilization of Resources: By efficiently handling cases within a shorter
timeframe, fast track courts optimize the utilization of judicial resources, including
manpower and infrastructure.

Various Success of Fast Track Courts in India:

1. Nirbhaya Case: Fast track courts swiftly convicted perpetrators of the Nirbhaya gang
rape and murder in 2012, demonstrating their effectiveness in high-profile crimes
against women.
2. Domestic Violence Cases: Fast track courts expedited legal proceedings in domestic
violence cases, granting immediate relief to victims.
a. Example: Mumbai Metropolitan Magistrate Court's fast track division resolved
a 2020 case promptly.
3. Corruption Convictions: Specialized fast track courts secured convictions in
corruption cases, holding high-profile individuals accountable.
a. Example: Politicians convicted in Bihar's "Fodder Scam" case.
4. Child Sexual Abuse Cases: Fast track courts specializing in child sexual abuse cases
expedited trials and secured convictions, ensuring justice for victims.
a. Example: Conviction of a Kerala school principal for sexually abusing a minor
student.
5. Motor Vehicle Accident Compensation Cases: Fast track courts handling accident
compensation cases ensured timely relief for victims.
a. Example: Hyderabad Motor Accidents Claims Tribunal resolved a
compensation case within six months.

Challenges with Fast Track Courts:

1. Inadequate Infrastructure and Low Disposal Rate: Special courts face
infrastructure challenges akin to regular courts, leading to overburdened judges and
slow case disposal rates.
a. Delhi's FTSCs had a mere 19% disposal rate as of May 2023.
2. Limited Jurisdiction: Special courts are bound by specific jurisdictions, potentially
causing delays and inconsistency in applying laws.
a. Despite a target of disposing of cases within a year, Delhi's special courts only
resolved 1,049 out of 4,369 pending cases by May 2023.
3. Unclear Mandate: There's ambiguity regarding the types of cases fast-track courts
should handle, leading to confusion.
a. For instance, courts established under the Nirbhaya Fund lacked clarity on
which gender-based violence cases fell under their jurisdiction.
4. Vacancies: Vacancies in lower courts (23% as of 2023) hinder effective case
management.
5. Lack of Training: Regular judges, lacking specialized training, are often reassigned
to FTSCs, impacting their efficiency.

Way Forward:
1. Capacity Building:
a. Assigning dedicated judges to ensure regular hearings.

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 b. Employing competent staff, like stenographers and clerks, for efficient evidence
processing and managing administrative tasks.
2. Process Engineering:
a. There should be a clear mandate for fast-track courts as is the practice in
countries such as Spain and Liberia.
b. Implementing realistic time assessments for hearings and establishing proper
timetables to allocate sufficient time for each case.
3. Clear Mandate:
a. Adopting a clear mandate similar to practices in countries like Spain and
Liberia.
b. Mandating fast-track courts to handle cases within stipulated timeframes,
particularly those related to gender-based violence.

Conclusion 1: Fast-track courts should not be seen as a substitute for the regular courts but
as a supplement to them. The ultimate goal should be to improve the overall functioning and
performance of the judicial system, by ensuring adequate infrastructure, manpower,
resources, and reforms.

Conclusion 2: "Fast-track courts are a necessary step towards ensuring speedy justice,
especially for the marginalized sections of society." :Justice R.M. Lodha

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 10. Criminal Justice System in India

Intro 1: Recently the Union Home Minister introduced three new Bills in the Lok Sabha that
propose a complete overhaul of the country’s criminal justice system. It has brought the issues
of the criminal justice system to the forefront.

Various Stakeholders in India’s Criminal Justice System:

Law Judiciary which Legal Corrections

Enforcement interpret and Professionals System
Agencies at apply the law, representing responsible for
various levels adjudicate parties in the punishment,
(local, state, criminal cases criminal rehabilitation,
and national) and ensures fair proceedings and supervision
trial and ensure of offenders.
legal rights are

Victims and Citizens and Civil

Witnesses directly Society
affected by crime, Organizations
who play a crucial involved in crime
role in the prevention, victim
investigation and support, and
prosecution of criminal justice
criminal cases reform efforts.

Issues and Challenges in the Indian Criminal Justice System:

1. Law Enforcement Agencies:
a. Resource Constraints: Inadequate funding and manpower hinder effective
crime prevention and investigation.
i. Against a UN norm of 222 police personnel per lakh of population,
India’s officially sanctioned strength is a paltry 181, and the actual
strength is an abysmal 137
b. Corruption and Interference: Political influence and corruption undermine the
impartiality and professionalism of law enforcement.
c. Apathy in Forensic System: Nearly a million items sent for forensic
examination in India, representing a shocking 38% of all such cases, remain
unattended for a year or more.
2. Judiciary:
a. Case Backlogs: High caseloads lead to delays in trials, violating the right to
speedy justice.
b. Legal Complexity: Outdated laws and procedural complexities impede
efficient adjudication of cases. For example, Dramatic Performance Act, 1876.

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 3. Legal Professionals:
a. Adjournment Culture: The 239th Law Commission Report (2012) listed
causes for delay in criminal cases at the trial court stage and adjournment was
the most pressing issue. Adjournments lead to heavier workloads, which lead
to even more adjournments.
b. Heavy Workloads: Overburdened lawyers and public defenders struggle to
provide quality representation due to excessive caseloads.
c. Access to Justice: The limited availability of legal aid services restricts access
to justice for marginalized communities.
4. Correction Systems (Prison Departments):
a. Overcrowding: Prisons are overcrowded, leading to poor living conditions and
increased risk of violence and disease.
i. According to the NCRB data, about 67.2% of the total prison
population consists of under-trial prisoners.
b. Rehabilitation Deficits: Inadequate rehabilitation programs fail to address
offender reintegration and reduce recidivism rates.
5. Victims and Witnesses:
a. Intimidation and Fear: Victims and witnesses face intimidation and threats,
deterring them from cooperating with law enforcement.
b. Lack of Support: Insufficient victim support services leave victims without
adequate assistance during legal proceedings.
6. Citizens and Civil Society Members:
a. Distrust in Police: The Second ARC has noted that police-public relations are
unsatisfactory in India because people view the police as corrupt, inefficient,
and unresponsive, and often hesitate to contact them.
b. Limited Advocacy Resources: Civil society organizations lack resources and
support to advocate effectively for criminal justice reform.

Reforms in IPC and CrPC:

The three new Bills that propose a complete overhaul of the country’s criminal justice system
are
1. The Bharatiya Nyay Sanhita Bill, 2023, which will replace the IPC, 1860
2. The Bhartiya Nagrik Suraksha Sanhita Bill, 2023, which will replace the CrPC, 1898
3. The Bharatiya Sakshya Bill, 2023, which will replace the Evidence Act, 1872

Proposed Changes in the Bharatiya Nyay Sanhita Bill, 2023:

1. Definition Consolidation: Defines terrorism and related offenses under one law.
2. Sedition Repeal: Removes sedition offense to safeguard free speech.
3. Mob Lynching Penalty: Imposes capital punishment for mob lynching.
4. Sexual Deception Penalty: Imposes 10 years imprisonment for deceptive sexual
intercourse.
5. Community Service Introduction: Introduces community service as punishment for
certain crimes.
6. Charge Sheet Timelines: Sets a maximum of 180 days to file a charge sheet,
expediting trials.

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 Proposed Changes in the Bhartiya Nagrik Suraksha Sanhita Bill, 2023:
1. Technology Promotion: Promotes technology usage in trials and depositions.
2. Video-Recording Mandate: Mandates video-recording of statements in sexual
violence cases.
3. Complaint Status Requirement: Requires police to update complaint status within
90 days.
4. Arrest Safeguards Enhancement: Enhances arrest safeguards, requiring approval
for certain offenses.
5. Victim Consultation Requirement: Ensures victim consultation before case
withdrawal.
6. In-Absentia Trial Provision: Allows trials in-absentia for absconding criminals.
7. Electronic Records Consideration: Empowers magistrates to consider electronic
records as evidence.
8. Mercy Petition Timeline Setting: Sets strict timelines for mercy petitions in death
sentence cases.

Proposed Changes in Bharatiya Sakshya Bill, 2023:

1. Electronic Evidence Definition: Defines electronic evidence and sets criteria for
admissibility.
2. DNA Evidence Special Provisions: Establishes special provisions for DNA evidence.
3. Expert Opinion Recognition: Recognizes expert opinions as evidence.
4. Presumption of Innocence Principle: Presumes innocence until proven guilty
beyond a reasonable doubt.

Significance of the Proposed Reform:

1. Modernization and Simplification: Aims to modernize and simplify outdated and
complex criminal laws, aligning them with evolving societal and technological
dynamics.
2. Repealing Draconian Laws: Seeks to repeal the widely criticized sedition law
(Section 124A of IPC) known for misuse against dissenters and government critics.
3. Introduction of New Offences: Intends to introduce new offenses like terrorism,
corruption, mob lynching, and organized crime, addressing contemporary challenges
not adequately covered by existing colonial-era laws.
4. Gender Neutral Sexual Offences: Plans to make some sexual offenses gender-
neutral, including men and transgender individuals as potential victims and offenders
alongside women.
5. Enhanced Use of Electronic Evidence: Aims to increase the use of electronic
evidence and forensics throughout investigation, prosecution, and adjudication
processes.
6. Empowering Citizens: Enables citizens to register complaints in any police station,
and ensures effective protection of constitutional rights.

Issues in Proposed Reforms to the Criminal Justice System:

1. Creation of a reformative system rather than a punitive system: Several minor
offenses that carry a maximum penalty of six months imprisonment are not
compoundable, which means they will go through the process of trial and conviction.

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 2. Maintenance of public order and the process of criminal prosecution in the same
law: The CrPC has provisions charting out the process of arrest and trial as well as
items such as Section 144 that empower the district magistrate to impose various
restrictions. The new Bill retains this structure.
3. Codification of SC’s directions: Experts are questioning whether various directions
of the Supreme Court of India have been codified in these proposed laws.
4. Overlap with special laws: IPC was enacted in 1860 and since then, several laws
have been enacted to deal with specific offenses. However, the IPC and the Bill to
replace it continue to specify some of these offenses and the applicable penalties.
a. This leads to duplication as well as inconsistency across these laws. In some
cases, the penalties are different; also, a person may face prosecution under
different laws for the same action.

Various Committees’ Recommendations for Criminal Justice System Reform in India:

1. Vohra Committee, 1993:
a. Proposed institutions to combat the criminalization of politics and the nexus
between politicians, bureaucrats, and criminals.
b. Recommended intelligence gathering and appropriate action against such
elements.
2. Malimath Committee, 2003:
a. Advocated introducing 'social welfare offenses' for minor violations.
b. Suggested replacing the adversarial system with a 'mixed system' and reducing
the standard of proof for conviction.
3. Supreme Court Directives on Police Reforms, 2006:
a. Directed the establishment of the State Security Commission for police policy
formulation.
b. Advocated fixed tenure for the Director General of Police and separation of
investigation and law enforcement functions.
c. Called for the creation of a Police Complaints Authority for inquiry into police
misconduct
4. Madhav Menon Committee, 2007:
a. Emphasized respect for human rights and dignity throughout the criminal
justice process.
b. Promoted restorative justice and improved coordination among agencies.

Reforms Needed in the Indian Criminal Justice System:

1. Law Enforcement Agencies:
a. Modernization and Training: Implement modern technology and provide
specialized training to enhance investigative skills.
b. Accountability Mechanisms: Establish robust oversight mechanisms to
ensure transparency and accountability in police actions.
2. Judiciary:
a. Case Management Systems: Introduce efficient case management systems
to reduce backlog and expedite trial processes.
b. Judicial Reforms: Streamline court procedures, enhance judicial capacity,
and fill vacancies to improve efficiency.

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 3. Legal Professionals:
a. Continuing Education: Provide ongoing training and professional
development opportunities to enhance legal skills and knowledge.
b. Legal Aid Expansion: Expand legal aid services to ensure access to justice
for all, especially marginalized communities.
4. Correction Systems (Prison Departments):
a. Rehabilitation Programs: Implement effective rehabilitation programs to
facilitate the reintegration of offenders into society upon release.
b. Prison Conditions: Improve living conditions and address issues of
overcrowding and healthcare within prisons.
5. Victims and Witnesses:
a. Support Services: Provide comprehensive support services, including
counseling and protection, to victims and witnesses throughout legal
proceedings.
b. Legal Assistance: Ensure victims and witnesses have access to legal
assistance and are informed of their rights throughout the process.
6. Citizens and Civil Society Members:
a. Awareness Campaigns: Conduct public awareness campaigns to educate
citizens about their rights and responsibilities within the criminal justice system.
b. Community Engagement: Encourage community involvement in crime
prevention efforts and foster partnerships between citizens and law
enforcement agencies.

Conclusion 1: The Indian criminal justice system faces challenges, but with reforms and
collective efforts, it can uphold the rule of law and promote justice for all.

Conclusion 2: A robust criminal justice system is the bedrock of a democratic society,

safeguarding the rights and freedoms of its citizens. Justice delayed is justice denied. The
Indian criminal justice system must expedite trials and ensure timely justice delivery.

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 PYQs of Judiciary and its related aspects:
1. Judgments and cases
a. SC firecracker ban verdict and right to clean environment & Art 21 (15)
b. I.R. Coelho case (Ninth schedule verdict) and judicial review (16)
c. SC NJAC verdict wrt appointments of judges in the higher judiciary (17)
d. SC verdict on the right to privacy and scope of FRs (17)
e. SC Delhi statehood verdict and govt vs LG tussle (18)
f. The emergence of the ‘Principle of Federal Supremacy’ and ‘Harmonious
Construction’ through court judgments regarding the distribution of legislative
powers (19)
g. Constitutional morality and recent verdicts (21)
h. Constitutionalization of environmental problems by the SC and related cases
(22)
i. Representation: Constitutional perspectives of Gender Justice and relevant
cases (23)
2. Separation of Powers
a. Tussle B/w L&J: SC vs arbitrary power of the Parliament in amending the
Constitution (13)
b. Ordinance-making power, separation of power, and the role of SC decisions
over its increased usage (15)
c. Separation of power vs checks & balances in the Constitution (19)
d. Judicial legislation is antithetical to the SoP and large numbers of PILs (20)
e. Constitutionally guaranteed judicial independence (23)
3. ADR: Tribunals, quasi-judicial bodies, sub-ordinate courts, and other wings
a. Role of NHRC as an effective complement to the judiciary (14)
b. Changes in the Arbitration and Conciliation Act, 1996, and improvement in
India’s dispute resolution mechanism (15)
c. Quasi-judicial bodies and their examples (16)
d. Tribunals vs jurisdiction of ordinary courts and constitutional validity and
competency of the tribunals (18)
e. Central Administration Tribunal as an independent judicial authority (19)
f. Eligibility for free legal aid and role of the National Legal Services
Authority(NALSA) in it (23)
4. Miscellaneous
a. Concepts: Judicial activism in achieving the ideals of democracy (14)
b. Comparative Analysis: Convergence and divergence between judicial
systems and practices of India and the UK (20)
c. Representation in Judiciary: Greater representation of women in the higher
judiciary to ensure diversity (21)\

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 Anticipation
1. Important judicial verdicts: Take special emphasis on important judgments of last
year like Article 370 Judgement, the equal right to marry for sexual minorities verdict,
the verdict on the election commission’s appointment (it will also have an angle of
SoP), Electoral bonds verdict, its various verdicts on the role of Governors and so on.
2. Important keywords: In important cases like electoral bonds or Article 370 judgments,
you will find keywords around which UPSC will frame questions.
3. Separation of power. Almost every year there has been a question on this theme.
4. Statutory, regulatory, and various quasi-judicial bodies.
5. Basic structure doctrine.
6. Judicial reforms. It will also include appointment reforms.
7. Role of technology in judiciary and overall infrastructure
8. Criminal Justice Reforms

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