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JUDICIARY -,SC/HC/SUBORDINATE COURTS , TRIBUNALS & GRAMNYAYALAYA BY…
JUDICIARY -,SC/HC/SUBORDINATE COURTS , TRIBUNALS & GRAMNYAYALAYA BY ATRISHEKHAR
SUPREME COURT
Supreme Court to be a Court of Record (Article 129)
128-retired judge may be called
Appointment of Ad Hoc Judges (Article 127)
Salaries of Judges of Supreme Court (Article 125)
Removal of Judges
Qualification:
Appointment of Judges
Establishment and constitution of Supreme Court (Article 124)
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The judges of the Supreme Court are appointed by the President.
The appointment is based on the Collegium System.
Collegium system was born through Third Judges case and it is in practice since 1998. It is used for appointments and transfers of judges in High courts and Supreme Courts.
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No mention of the Collegium either in the original Constitution or in successive amendments
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Citizen of India.
Should have experience as a –
Judge of a High Court for 5 years or two or more such courts;
Advocate of High Court or two or more such Courts for 10 yrs in succession;
Distinguished Jurist in the opinion of the President.
By an order of President;
A removal motion needs to be passed in both the Houses of the Parliament by a special majority in the same session;
On grounds of proved misbehavior or incapacity.
Parliament may provide by law to regulate the procedure for the presentation and address and investigation of such charges.
The
Judges Enquiry Act (1968)
regulates the procedure relating to the removal of a judge of the Supreme Court by the process of impeachment:
Can be initiated in either
house of the Parliament.
After that the Presiding officer- Speaker (in case of Lok Sabha) and Chairman (in case of Rajya Sabha) may admit it or reject it. If it is admitted, then the presiding officer appoints a committee to investigate the matter.
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In the case of Lok Sabha, it must be signed by 100 members of Lok Sabha. After that, the Presiding officer has accepted that petition*
If it is initiated in Rajya Sabha, the notice for initiation of the removal must be signed by at least fifty members of the Rajya Sabha.
No judge of the Supreme Court has been impeached so far.
No judge of the Supreme Court has been removed so far. Justice V. Ramaswamy was the only judge who faced the removal process by the Parliament. Eventually, he could not be removed because that motion was defeated in Lok Sabha.
Determined by Act of Parliament
Not to be varied to his disadvantage (salaries; allowances and pension etc)
The President may appoint acting CJI in case of vacancy or absence of Chief Justice of India (Article 126)
In the absence of Quorum; CJI with the previous consent of the President and after consultation of CJ of High Court concerned; appoint any Judge of High Court as Ad Hoc Judges of SC.
Shall enjoy the powers and privileges of Judges of SC.
Court whose proceedings are recorded and available as evidence of the fact.
Note: Article 215 – High Court of States to be Court of records.
Power to punish for contempt of court.
Seat of Supreme Court (Article 130)
Seat of Supreme – Court may sit in Delhi; or another place as decided by CJI with approval of the President.
INDIAN JUDICIARY
Indian constitution has established an integrated judicial system with the Supreme Court at the top and the high court below it.
In USA, however, both federal and state laws are enforced by different courts- one at the federal level and the other at state level. The SC in India was established as the federal court under the provisions of the GoI, 1935.
Article 124 to 147 in Part V of the constitution deal with the organization, independence, jurisdiction, powers and procedures of the SC. The parliament is authorized to regulate them
Below the HC, there is a hierarchy of subordinate courts. This single system of courts, adopted from the government of India Act of 1935, enforces both central laws as well as the state laws.
HIGH COURT
Qualification for Judges of HC
OATH/REMOVAL/TRANSFER
Appointment and conditions of service of a Judge of a High Court (Article 217)
ABOUT
There shall be a High Court for each State. (Article 214).
Every High Court shall be a Court of record and shall have the power to punish for its contempt. (Article 215).
Every High Court consists of Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint.
Every Judge of HC shall be appointed by the President; by warrant under his hand and seal.
Hold office until he attains the age of 62 years.
President to consult
CJI
Governor of the State
Chief Justice of the concerned State where the appointment is to other Judges of the HC.
Judges (HC) to take oath administered by Governor.
Judge may resign anytime; Resignation addressed to the President.
Judge may be removed; in the manner provided under Article 124 (Same as SC Judges).
Office may be vacated due to appointment to SC; or transfer to other HC by President.
Article 222 – Transfer of Judges from one HC to another – By the President with consultation of CJI transfer Judges from one HC to another.
He shall be a citizen of India;
Held at least 10 years of judicial office in the territory of India.
Advocate of High Court for at least 10 years (or High Courts in succession).
Note- Any question with regard to age of a Judge of HC; President’s decision is final taken after consultation with CJI.
Any permanent Judge of HC shall not plead or act in front of any authority; Except the SC and other HC.
Article 223 – Acting Chief Justice
President may appoint acting Chief Justice.
If Chief Justice is unable to perform his duties.
Additional/ Acting Judges of H.C
Additional
More work/ pending cases (additional Judges can be appointed).
Not exceeding 2 years; not after attaining 62 years.
Acting Judges
When any Judge is absent; not able to perform his duty (Acting Chief Justice).
Acting Judge under such circumstances.
Tenure: Not exceeding 2 years and not after attaining 62 years.
Appointment of retired Judges of HC
By the Chief Justice of High Court with previous consent of the President; request retired Judges of other HC to act as Judge of that HC.
Salaries, allowances to be determined by the President.
Jurisdiction of High Courts
Constitution does not provide for any general jurisdiction of the Courts (Article 225);
Says as it existed at the commencement of the Constitution
Subject to law made by Parliament and State Legislature.
Original Jurisdiction
No original jurisdiction in the case of criminal matters; original jurisdiction in certain civil cases of higher value.
Appellate Jurisdiction
Both civil and criminal matters
Letter Patent Appeals in case of H.C of Allahabad; Bombay; Calcutta; Madras and Patna High Courts.
Writ jurisdiction (Article 226)
Writ jurisdiction throughout the territory in relation to which it exercise jurisdiction.
Not only for violation of FR’s but for other purposes as well (legal rights).
High Court’s power of superintendence (Article 227)
Every High Court has superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
Issue general rules; regulating practicing and proceeding in the Courts; prescribe forms in which entries and accounts to be kept.
Such rules require previous approval of Governor and not in violation of any law.
Armed Forces Tribunal doesn’t fall within the jurisdiction of High Courts.
OTHER POWERS
Transfer cases to HC (Article 228)
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Extension of jurisdiction of the High Court (Article 230)
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Establishment of common high court for two or more states (Article 231)
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judicial issues
PENDENCY OF CASES
Status of Pending Cases:
• There are nearly 4.52 crore cases pending across all the levels of the three-tier Judiciary.
• At the level of District courts/Subordinate courts, 3.9 crores of cases are pending.
• At the level of High courts, 58.5 Lakh cases are pending.
• 69,000 cases are pending at the Supreme Court.
Apex Court's Docket:
As part of the total number of pending cases in the Supreme Court, cases related to Constitutional bench matters are 0.3%, cases related to Pl Ls are 2%, and cases related to fundamental rights/writ petition are 1.3%.
. These principal matters constitute Iess than 4% cases pending there
Other cases that are pending in the Supreme
Court's docket are
o Criminal matters (21 %)
o Service matters (15%)
o Tax matters (13%)
o Ordinary civil matters (12%)
Factors behind Massive Arrears:
Inadequate number of judges
Vacancies in judiciary
Government is a compulsive and irresponsible litigant
It is responsible for 50% of the total pending cases
Case disposal rate is Slow
Culture of adjournment
Reservation of judgement for years
Poor quality of investigation and prosecution
Too many procedural complexities in our three-tier court system
Higher level of education awareness and human development:
Frivolous cases
Absence of Judicial Impact Assessment:
Adverse Implications of Pendency of Cases:
• Justice Delayed is Justice Denied
• In criminal matters, there is so much delay in the justice process because of the huge pendency of cases which encourages and increases the criminality in society.
• Increases tendency in the society to employ extra-legal and extra-judicial means to resolves disputes.
• Erodes the credibility and image of the judiciary
• Pendency of Cases which leads to delays in decision making or judgement also leads to an increasing tendency to employ extra-legal means to resolve disputes.
• It also leads to wastage of resources and time of litigants.
• Of the targeted 2500 Gram Nyayalayas, only 320 have been notified till 2017 and in just 11 states.
• As of September 2019, only 204 Gram Nyayalayas were functional.
• There is also confusion as to its jurisdiction because other courts are available with similar jurisdiction.
• Reluctance of state authorities to file cases in Gram Nyayalayas.
Docket explosion Vs. Docket Exclusion-Docket
Explosion is when so many people will go to court and the court will collapse. Whereas Docket
Exclusion is that even when so many people go to the court, they are a small fraction of the total population, majority of which is poor & is unable to get court protection.
In India, on an average 17 Cases per thousand population filed by in a year whereas in USA, 330/1000 in an year.
JUDICIAL INDEPENDENCE
Principle of separation of power and checks and balances:
• In India, the Constitution is based on the separation of powers and the separation of power entails another principle called checks and balances. It means every institution checks the other tools.
• If the judiciary is supposed to exercise an objective of rational check on the working of the executive and the parliament, it has to be independent from both the legislature (i.e., the parliament) and the executive.
Upholding the Constitution and protecting it from unwanted invasions:
To preserve Rule of Law
To preserve the rights of the people:
Counter majoritarian role:
Preserve federal polity:
The independence of the judiciary is required to check executive's Malfeasance, Misfeasance,
and nonfeasance.
Malfeasance
•It is an abuse of power by
government or government agencies or
public servants, with wilful intent that is legally
unjustified and harmful to the public interest.
Misfeasance
It is an act that legally or
lawfully, but it has been done improperly or in an \
unlawful way that brings harm to the public
interest.
There is no wilful intent,
it is on account of negligence, errors,
mistakes, etc.
Nonfeasance
It is the failure on the
part of the public servant to perform duty that is
required by law.
JUDICIAL ACTIVISM
• In a democratic Constitution based on separation of power as indeed our Constitution is, the three institutions i.e., legislature, executive, and judiciary have been given a conventional role.
• Judiciary interprets the laws and applies the laws when there are conflicts and interprets the Constitution, legislatures make the laws and executive implements the laws.
• Another general theory of separation of powers each of these three institutions has been given conventional roles and conventional means which is there to fulfill the roles.
There are few new terms that are there to describe judicial activism are hyper activism, judicial
adventurism.judicial overreach.judicial populism, so and so.
The moment you start interpreting your role or the means available to you to fulfill that role,imaginatively trying to rope into your role, things which are earlier never considered, you stepped into activism
Factors Behind the Rise of Judicial Activism:
• To recover the lost prestige of the apex court.
• Inadequacies in the functioning of legislatures and executives.
• Flexible interpretation of the "rules of locus standi"-Doctrine of Standing. (What is the standing of the petitioner in the case)
Emergence of the concept of "Suo moto Cognizance" and "Epistolary jurisdiction".
A letter highlighting a grievance can also be converted into a PIL.
Inability of government in taking tough decisions.
o CNG in Delhi.
o Phasing out of BS-1 1I Vehicle.
o Revocation of Section 377 of the Indian Penal Code (IPC).
o Shifting polluting industries out of Delhi.
wellington island , vembanad resort issue
Judicial personal management since the 1990s has now been practically liberated from executive
control. This tended to embolden the judges to become more fearless when pronouncing judgments against the government.
Increasing influence of global constitutionalism on Judiciary. Particularly those global constitutional
documents to which India is a party.
Rise of the concept of 'Demos prudence' and judicial democracy. In a democracy.Judiciary also has accountability towards people.
Judicial activism has two avatars.
Legislative:
o The traditional role of the judiciary with respect to the legislature is 'Declaratory' in nature.
o Legislatures at the central and state levels are required to pass laws and if the law is challenged on the grounds of constitutionality, the traditional role of judiciary with respect to the law passed by
two levels of the legislature is basically to declare its vires.
Judiciary can declare it Ultra vi res if it is violating the Constitution and intra-vires if it is not violating
the Constitution.
But if there is a legal vacuum, the court asked how long can the society wait for the parliament or
state legislature to act and fill up the legal vacuum.
Executive:
Environmental norms which ideally should have come from the government, but the government is
not making the right kind of norms or not coming with any norms.
That is why the judiciary is
stepping into this kind of policy area and laying down its own principles and norms.
Civil services reforms, police reforms are standard areas in which the executive should be
responsible for making policies for all kinds of administrative, civil services, and police reforms.
both the centre and state government dragging their feet from these reforms. That is why the
judiciary steps in.
Positive implications of Judicial Activism:
Positive implications of Judicial Activism:
improving and promoting transparency, probity, and accountability
t helped the government to shift some of its responsibilities,
helped in reconciling the permanent values of the Constitution
expansion of rights and enforcement of rights.
JUDICIAL
ACCOUNTABILITY IN INDIA
Accountability of judiciary is understood in terms of judge's corruption, lacks in integrity, engaging in
unscrupulous activity, not very ethically sound, etc.
Accountability also has to be ensured in terms of
performance of judges-a judge is a man of integrity, a person of impeccable honesty, has a very sound credentials, and has never engaged in any unethical activities but he lacks in knowledge of Law, he is
lethargic, and found to be postponing and reserving the judgements, etc.
Corruption/Misbehaviour:
The Second ARC proposed
setting up of the National Judicial Council (NJC) which will be
responsible for the appointment and transfer of the judges of higher judiciary
it will be responsible to lay down the code of ethics.
one judge each in the Supreme Court and High Court to be designated as the judicial value commissioner an
To deal with this lacuna, the UPA then came up with the National Judicial Accountability Bill in 2010 to hold judges accountable
But the provisions of this bill are very disturbing even if it is passed by the parliament, it would be struck down by the court.
lnhouse Procedure:
If there is a complaint against the high court judge then to deal with this complaint, the Chief Justice
of India will appoint a committee of two CJ ls of High Court, but this committee will not include the CJI' of that court in which the accused judges are functioning.
If there is a complaint against the Chief Justice of a high court. The CJI will nominate a committee
consisting of a sitting Supreme Court judge as a chairperson and other two chief justices of HC
If there is a complaint against the Supreme Court judges, then the CJI will nominate a committee of
three Supreme Court judges to investigate the allegation.
Even though this in house procedure covers High Court judges, Chief Justice of high court.judges of the
Supreme Court but this procedure does not cover the allegations againstthe CJI.
Transparency in Judiciary:
As far as the transparency is concerned, the Supreme Court and High Courts are subjected to Rightto Information (RTI)
It has been debated those whatever proceedings taking place inside the courtroom, there should be
audio/video recording for those sessions.
2017, the Supreme Court came up with the ruling that the court can implement the audio/ video
recording of court sessions
These recording will not be available under the RTI without the permission of the related High Court.
In Swapnil Tripathi case 2018, the Supreme Court indicated its readiness to go live on telecast.
Gujarat High Court was the first court (started in 2021) that started living proceedings of some of the
court rooms followed by Karnataka High Court.
Witness Protection Scheme, 2018:
• It was prepared by the central government in consultation with National Legal Services Authority (NLSA) and it was given approval by the Supreme Court.
• The key features of the scheme are:
o On the basis of threat, the threat which is perceived to be directed towards any witness. The threat can be categorized in three categories,
► Category A: When there is clear threat to the life of witness and his family.
► Category 8: There is threat to his (witness) safety, his reputation and property.
► Category C: Where the threat is moderate, threat of harassment, and intimidation.
o The threat perception report will be prepared by the head of the police.
o Provisions for witness relocation and change of identity.
ALL INDIA JUDICIAL
SERVICES
• All India Judicial Service added in Article 312 by the 42nd Amendment Act, 1976.
• Interestingly, the law commission in various reports that came in 1958, 1978, 1986 supported the idea of All-India Judicial Service.
Benefits of All-India Judicial Service:
• It will bring a uniform standard of judicial service.
• It will attract the besttalent.
• Management would be done by an impartial agency i.e., the Union Public Service Commission, which
would reduce politicisation as far as the judicial appointments are concerned.
• Proper manpower planning would be done.
Issues related to All-India Judicial Service:
• Age, and eligibility concerns are there.
• Selected candidates from All-India Judicial Services will be allocated to State cadres. So, the concern is
associated with the knowledge of the local language, laws, and customs.
• Proportional advantage for subordinate judges.
• Pay inadequacy.
Adverse Implications of Judicial Activism
• It's a slippery slide. It has actually led to jurisdictional inflation.
• It has led to undue interference in administration.
• It has also led to delays in the implementation of public projects.
• Abuse of Publiclnterestlitigation (PIL).
The concept of PIL when it evolved in the late '70s and SO's, the principal objective was to provide access to justice to those section deprived sections of the population who in their own cannot approach the court and somebody can litigate on their behalf, maybe social activist, human rights activists, etc.
It has become Publicity Interest Litigation, which means lawyers and people for sake
of publicity, file PIL.
It tended to become Public Issue Litigation as Pl Ls are coming in civil services reforms, electoral
reforms, etc.
Public Interest Litigation has lost its direction and abandoned its original constituency and today
several Pl Ls have become its victim
Courts have often held that Pl Ls should be entertained only when fundamental rights are involved.
Check on Abuse of PIL
• Penalize the frivolous Plls.
In 2017 Rajib Pahiya, the Chairperson of swaraj trust filed 64 Pl Ls and as a result of that, he was
fined 25 Lacs rupee for wasting the time of the court.
Pl Ls can be filled in Supreme Court as well in High Court. I
In the Supreme Court, there exists a PIL Cell, t the cell should be strengthened to make sure that before the appeal, it has been properly screened
Speedy disposal of Pl Ls especially where major government projects are involved.
The SC should categorically provide specific mention of the kind of areas where Pl Ls can be filed
Dealing with PIL related to Environment
• Correct balance between eco-centric and anthropocentric values.
• Entitlement of each citizen. For example, the right to a healthy environment. Under the right to a healthy environment, what is the entitlement of each citizen?
• Positioning of environmental rights in the hierarchy of rights.
The court evolved principles
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SUBORDINATE COURTS
Appointment of District Judges (Article 233)
Criteria – At Least 7 years an advocate (recommended by HC)
Appointment to district judge is made by the Governor; consultation with the High Court of the concerned state
Recruitment of persons other than District Judges to the Judicial Service (Article 234)
Appointment of persons other than District judges; shall be made by the Governor (Sub judicial service)
Accordance to rules made by governor in consultation with State Public Service Commission and High Court concerned.
TRIBUNALS
Tribunals were not part of the original constitution.
It was incorporated in the Indian Constitution by 42nd Amendment Act, 1976 in accordance with the recommendations of the Swaran Singh Committee.
The Amendment introduced Part XIV-A to the Constitution. This Part is called ‘Tribunals’.
Article 323A – Administrative Tribunals
Administrative tribunals are quasi-judicial institutions that resolve disputes related to the recruitment and service conditions of persons engaged in public service.
The Central Administrative Tribunal was created under this Section.
They are of statutory origin, and so must be created by a statute by Parliament/Legislatures.
They function on the principles of natural justice and are not bound by the Civil Procedure Code.
They have the power to summon witnesses, administer oaths and compel the submission of documents, etc. like other courts.
The writs of prohibition and certiorari are available against decisions of such tribunals.
They are independent bodies and are not subject to administrative interference.
In the Chandra Kumar case (1997), the Supreme Court had held that appeals against the orders of a tribunal could be made in the High Court. This defeats the purpose of reducing the burden of the normal courts.
The Administrative Tribunals Act, 1985 provides for three types of tribunals:
The Central Government establishes an administrative tribunal called the Central Administrative Tribunal (CAT).
The Central Government may, upon receipt of a request in this behalf from any State Government, establish an administrative tribunal for such State employees.
Two or more States might ask for a joint tribunal, which is called the Joint Administrative Tribunal (JAT), which exercises powers of the administrative tribunals for such States.
Article 323B – Tribunals for other subjects s:
Taxation, Industrial and labour, Foreign exchange, import and export, Land reforms, Food , Ceiling on urban property, Elections to Parliament and state legislatures, Rent and tenancy rights
Tribunals under 323A can be established only by the Parliament. However, tribunals under 323B can be established by both the Parliament and the State Legislature.
Under 323A, there can be only one tribunal at the Centre and one for each state (or two or more states), but under 323B, there can be a hierarchy of tribunals.
National Green Tribunal
The National Green Tribunal was established in 2010 under the National Green Tribunal Act 2010 as a statutory body for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources.
The Tribunal is mandated to make and endeavor for disposal of applications or appeals finally within 6 months of filing of the same.
Initially, the NGT is proposed to be set up at five places of sittings and will follow circuit procedure for making itself more accessible.
New Delhi is the Principal Place of Sitting of the Tribunal and Bhopal, Pune, Kolkata and Chennai shall be the other four place of sitting of the Tribunal.
GRAM NYAYALAYAS
Gram Nyayalayas or village courts are established under the Gram Nyayalayas Act, 2008 for speedy and easy access to justice system in the rural areas of India.
The Gram Nyayalayas are presided over by a Nyayadhikari, who will have the same power, enjoy same salary and benefits of a Judicial Magistrate of First Class.
Such Nyayadhikari are to be appointed by the State Government in consultation with the respective High Court.
Jurisdiction:
A Gram Nyayalaya have jurisdiction over an area specified by a notification by the State Government in consultation with the respective High Court.
Can function as a mobile court at any place within the jurisdiction of such Gram Nyayalaya, after giving wide publicity to that regards.
They have both civil and criminal jurisdiction over the offences.
The pecuniary jurisdiction of the Nyayalayas is fixed by the respective High Courts.
Gram Nyayalayas has been given power to accept certain evidences which would otherwise not be acceptable under Indian Evidence Act.
Appeals:
Appeal in criminal cases shall lie to the Court of Session, which shall be heard and disposed of within a period of six months from the date of filing of such appeal.
Appeal in civil cases shall lie to the District Court, which shall be heard and disposed of within a period of six months from the date of filing of the appeal.
Procedure to be followed:
Follow special procedures in civil matters, in a manner it deem just and reasonable in the interest of justice.
Allow for conciliation of the dispute and settlement of the same in the first instance.
Alternative Dispute Redressal Mechanism
Types of Alternative Dispute Redressal Mechanism
Judicial Settlements inclusive of Lok Adalats
Lok Adalat
Lok Adalat was basically an informal process up to at least 1987 when the National Legal Services Authority Act (NALSA) was enacted, and Lok Adalat is given a statutory status (i.e., Lok Adalat has been given statutory statusunder the Legal Service Authorities Act, 1987).
The Lok Ada lat is presided by a judicial officer, but he is not sitting as a judge over there
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The Award (decision) made by the Lok Ada lat is deemed to be a decree of a civil court and is final and binding on all parties and no appeal against such an award lies before any court oflaw.
If the parties are not satisfied with the award of the Lok Adalat though there is no provision for an
appeal against such an award, but they are free to initiate litigation by approaching the court
In 2002, an amendment was made to the NALSA Act 1987 to provide permanent Lok Adalat at various courts level
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Parivarik Mahila LokAdalat (PMLA):
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Assessment of the working of Lok Adalat:
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• The idea of Lok Adalat is based on the philosophy of 'compromise'.
• The first Lok Ada lat was organised in 1982 in Gujarat.
• The concept of Lok Adalat was started in 1980 and the person behind the idea of Lok Adalat was pushed by the former Chief Justice of India, Justice P. N. Bhagwati.
The Legal Services Authorities Act of 1987 paved the way for the development of the Lok Adalat system of dispute resolution in order to speed up the process. Disputes in the pre-litigation stage could be resolved amicably at Lok Adalats.
It is a component of the Alternative Dispute Resolution (ADR) system that provides informal, minimal, and expeditious justice to the general public.
Mediation
A neutral person known as a "mediator" assists the parties in attempting to obtain a mutually acceptable resolution of the disagreement through mediation.
The third-party does not make any decisions for the parties; instead, it serves as a facilitator who helps them improve their interaction.
The parties retain control of the outcome in mediation.
Negotiations
It is the most frequently utilized alternative dispute resolution method.
A non-binding procedure in which the parties commence negotiations without the involvement of a third party with the objective of obtaining a negotiated settlement of the issue.
Negotiation occurs in a variety of settings, including business, non-profit organizations, government branches, legal proceedings, international relations, and personal circumstances such as marriage, divorce, parenting, and everyday life.
Arbitration
.both parties involved in the dispute, choose the person who will hear and resolve their dispute through a consensus.
renders a judgment on the case that is mostly binding on the parties.
It is less formal than a trial, and testimony requirements are frequently eased.
In most cases, there is no right of appeal against an arbitrator's judgement.
limited scope for judicial intervention in the arbitration procedure,
The Arbitration and Conciliation (Amendment) Bill 2021 - to make the arbitration procedure more investor-friendly, cost-effective, and appropriate for quick case resolution.
Permanent Court of Arbitration (PCA)- The First International Peace Conference, held in The Hague, the Netherlands, in 1899, established the Permanent Court of Arbitration. The objective is “to facilitate the arbitration of international disputes”.
Conciliation
A non-binding procedure in which the parties to a disagreement are assisted by an impartial third party, the Conciliator, in finding a mutually satisfactory agreed settlement of the dispute.
The Conciliator is an active participant in the conciliation process, participating in discussions, negotiations, and reaching an acceptable settlement.
The parties have the option of accepting or rejecting the conciliator's recommendations.
However, if both parties accept the conciliator's settlement agreement, it will be final and binding on both parties.
Alternative Dispute Resolution (ADR) is a method of resolving disputes and disagreements between parties by negotiating and discussing a mutually acceptable settlement.
The Alternative Dispute Resolution mechanism aims to assist in the resolution of business disputes and other disputes in which no discussion process or mutually acceptable solution has been initiated.
Fundamental Rights: In India Alternative Dispute Resolution is enshrined in Article 14 (Equality before the law) and Article 21 (Right to life and personal liberty) of the Indian Constitution.
Directive Principles of State Policy: The ADR can also achieve the Directive Principles of State Policy (DPSP) of equal justice and free legal aid guaranteed by Article 39-A of the Indian Constitution.
It can help courts reduce the burden of litigation even while providing a well-rounded and gratifying experience for the parties involved.
Advantages
Dispute settlement is frequently done in private, which helps to retain confidentiality.
It is more feasible, cost-effective, and efficient.
Procedural flexibility saves time and money while removing the stress of a traditional trial.
The mechanism usually leads to innovative ideas, long-term results, increased satisfaction, and enhanced relationships.
The potential of having specialist competence in the form of an arbitrator, mediator, conciliator, or neutral adviser available on the tribunal.
It also gives more direct control over the outcome. Personal relationships may be spared as well.
Limitations
No Appeals: The scope of appeal in awards is limited or non-existent. If there is a fault with the reward, there is no way to challenge or amend it.
Different Rules: It is tough to pick between numerous guidelines and multiple institutions offering arbitration services.
Different Statutes: Because domestic and international arbitration have different statutes, it is difficult to determine the application of international arbitration laws.
The Language Barrier Across Cultures: Due to differences in language and culture between the two areas, it is difficult to bridge the gap and reach a common answer.
Unfamiliarity and lack of awareness: The majority of individuals still prefer the traditional technique of coming to court and are also unaware of these possibilities and the process.
ADR Mechanism - Recent News
Arbitration and Conciliation (Amendment) Bill, 2021
The Lok Sabha enacted the Arbitration and Conciliation (Amendment) Bill, 2021 in 2021 to prevent abuse by "fly-by-night operators" who manipulate the system to get advantageous decisions through deception.
The Bill is intended to replace the Arbitration and Conciliation (Amendment) Ordinance, which was passed in November of 2020.
The Parliamentary Standing Committee on Law and Justice recently proposed significant revisions to the Mediation Bill, 2021, in July 2022.
Online dispute resolution (ODR)
Online dispute resolution (ODR) is finding takers in India as an easier, cost-effective way to settle cases.
These are the early signs of the adoption of an alternative dispute resolution mechanism being widely used in China and the US, particularly in cases related to online transactions.
Online dispute resolution (ODR) has the potential to decentralise and democratise the justice delivery system for citizens.
Online dispute resolution (ODR) would make dispute resolution more affordable, amicable, and accessible.
FASTER
It is a digital tool developed by the Supreme Court for the rapid and safe distribution of urgent court orders to stakeholders in encrypted electronic format, as well as live broadcasting of court sessions.
The district judge is the highest judicial authority in the district. When he/she deals with the civil
matters he is known as district judge and when he entertains the criminal cases, he is known as sessions judge.
He has both judicial and administration powers.
Below Districtjudge and sessions courts there are court of subordinate judge's court and chief judicial
magistrate's court
The subordinate judge's deals with civil matters and has untimed power over civil suits.
Chief judicial Magistrate entertains criminal cases which are punished with imprisonment for a term
of seven years.
Then, there are munsiff court and the judicial magistrate's court.
Munsiff decides civil cases of small primary state.
The Supreme Court recently emphasized the lawyers to undergo compulsory training at the National Judicial Academy like the judges. The court advocated for mandatory training for all advocates.
Original Jurisdiction of the Supreme Court (Article 131)
Between GoI vs State or States
Between GoI and State vs State/States
State vs State (two or more States)
Special leave Jurisdiction (Article 136)
Appellate Jurisdiction of the Supreme Court (Article 132; Article 133; Article 134; Article 134A)
Appellate Jurisdiction of S.C in civil matters [Article 133]; case involves substantial question of general importance; If in the opinion of the High Court, the Supreme Court should decide the matter; certificate issued by H.C [Article 134A].
Appeal in cases of criminal matters; sentence is death (matter of right); or certified by H.C under Article 134A.
Appeal on civil, criminal (or) other proceedings to Supreme Court; provided H.C grants a certificate; [Article 134A]; it involves a substantial question of law relating to the interpretation of the Constitution.
The Supreme Court has the power to review its own orders and judgments.
Subject:
Law made by Parliament.
Rules made by SC (Article 145)
ARTICLE -139,141,142,143,
Article 139 – Power to issue writs: Any writ apart from Fundamental Rights; by a law of Parliament.
Article 141 – Law declared by S.C to be binding on all courts.
Article 142 – Extraordinary powers of the S.C
SC can pass any order/decree to do complete justice on any matter pending before it.
The Supreme Court, in its recent judgment on the Chandigarh mayor election, utilized its authority under Article 142 of the Constitution to ensure ‘complete justice’ and uphold the sanctity of electoral democracy.
Article 143 – Power of the President to consult the Supreme Court
Advisory jurisdiction of the Supreme Court.
Article 145 – Rulemaking power of the Supreme Court
Subject to Law of Parliament; Supreme Court to make rules; with approval of President; regulating general practice and procedure in the House.
Five Judges to decide any substantial question of law under Article 143.
Article 146 – Officers and Servants and the expenses of the Supreme Court
CJI may appoint officers and servants of the Supreme Court; or such other Judge or officer as the Court may decide.
Conditions of service shall be made by CJI; subject to the law made by Parliament
Note- Salaries; allowances and pensions or leave require the approval of the President.
Administrative expenses of Court; salaries; allowances and pensions etc. to be charged on the Consolidated Fund of India.
Evolution of the powers of Supreme Court
Phase-I (1950-1967):
•Apolitical Phase
•The Supreme Court was
only interested in rational interpretation of the
Constitution.
Phase-II (1967 -1977):
Phase of Politization
The apex court became
involving in the interpretation of the
Constitution.
•It started putting
restrictions on Parliamentary
amendments.
Phase-Ill (1977 Onwards):
The apex court started reacquiring its legitimacy
The 1977 onwards starts
the era of judicial activism.
It started to look at the
overall philosophy of the Constitution, intent of the
provisions, extent of implementation of the
provisions.
SC has discretion to grant special leave to appeal from any judgment; decree or order.
