Pendency in Indian Judiciary: An update

Reading time: 8-10 minutes.

Indian Judiciary is one of the three major pillars which upholds the democratic values of the state. All the citizens of our country put their faith in the justice of the system and believe in the efficiency of the judiciary. But still, a grim shadow follows a major drawback that leads to often criticism of the Indian Judicial system, which is, the pendency of a significant amount of cases in the courts. As they say, “Justice delayed is justice denied” and this delay often leads to outrage among the general public, which recently became clear with the delay in the judicial process of the Nirbhaya case. Recently, Justice DY Chandrchud shared National Judicial Data Grid (NJDG) statistics, a total of 32.45 Million cases are pending in India as of May 2020, out of which 9.045 million are civil cases and 23.39 million are criminal cases, and approx. 10% of the cases are 10 years old, making the scenario much worse.

Reasons for Pendency

Low strength of judges- It is obvious that a lack in the number of judges compared to the numbers of cases in the courts will gradually create a situation where the cases will keep on stacking. According to a “The Wire” report, There are approx. 19 judges per million of population and even after the continuous increase in the sanctioned strength of judges in high courts and lower courts, the actual work strength mostly remains less than sanctioned strength, sometimes even by half.

Daily listing of cases-“The Week” in a recent article proposed that on average a district court judge has around 60 cases before him per day (Most of which even turn out to be invalid or irrelevant), which is next to impossible to deal daily, adjournments become inevitable and new cases keep piling up.

Misuse of Process of Law- The process of law was established to put an end to any form of injustice and not violate any Human Rights, but sadly, it has become something which can be easily misused just for the sake of stretching the cases as far as they can be, The proper procedure of any case including continuous adjournments, and presenting of pieces of evidence and witnesses itself takes a long time but even after a verdict, The cases generally end up in higher courts, which already have their hands full with other cases, and the whole process and review starts again.

Poor Infrastructure- The dire condition of the court buildings cannot accommodate more judges and they even lack basic facilities like washrooms, libraries, parking, etc. Failure in providing a healthy and efficient working environment for the judges, lawyers, and other staff members makes the situation worse.

Major Roadblocks

There are various barriers, which are generally ignored while talking about the pendency of cases in the courts, but these roadblocks play a major role in this problem.

Extra holidays and vacations have become a factor for the pendency of cases as even the Apex Court on average works for fewer days than specified by the rules.

Vacancies for judges are low from the very bottom level, and the process of appointing judges is much complicated and time-consuming.

The Government barely spends money on the betterment of infrastructures and institutions.

The profession of law is becoming more money based. It leads lawyers to keep delaying the cases, hence making more money. The ideology of serving the people and doing justice seems to fade.

Probable Solutions

Appointment of more judges- The process to appoint judges should be made swift and, competent and sanctioned number of judges should be appointed to disperse the weightage of cases per judge and for the speedy justice.

Investment in Infrastructures- Proper investment in the infrastructure of courts and tribunals should be done, to make the working process more efficient.

Strict Regulations and Targets- Fines should be imposed for seeking adjournments and delays on flimsy grounds and particular annual targets must be set for effective disposal of the piling cases.

Alternate Dispute Resolution (ADR)- Through mediation processes, all the parties involved in a case can negotiate and come to terms on which everyone agrees, It saves the court from the trouble of listening to a case which can be settled out of the court and all the parties can extract something beneficial for them.

Lok Adalats- “People’s court”, present in every district with a sitting or retired judicial officer as a chairman. It aims to provide free legal aid to weaker sections of society and provide justice to everyone equally.

Digitalization- Establishment of E-Court and digitalizing the system of the judiciary will make the process of case filing and court procedures much easier and efficient.

Suggestions of Various Committees

The Parliamentary standing committee has recommended states to provide land for the buildings of courts and defined timelines for the computerization of all courts, as a step towards E-courts.

The 120th Law Commission of India has suggested the appointment of efficient judges as Ad-hoc judges for speedy justice.

The 11th Finance Commission suggested the establishment of fast track courts for the disposal of pending cases in 2005, they were made for 5 years after which it was up to the state whether they want to continue it or not, few states continued them. Till 2011, 32 Lakh cases were disposed of by these fast track courts.

The 13th Finance Commission has suggested the appointment of professional court managers as for the efficient and quick justice, professional staff is required.

The eCommittee of the Supreme Court launched a mobile application called National Service and Tracking of Electronic Processes (NSTEP) for sending notice and summons.

Critical Analysis

Looking at the factors involved, it seems that the judicial system has not yet adapted to modern times and less concern is being shown towards it by the government. Poor Infrastructure, fewer Judges and Misuse of law has become a major factor to drag the Indian judiciary behind, but with the constant judicial reforms, and suggestions of various committees the system seems to do better than it has been doing in past. The suggestions often come with various drawbacks but the removal of the factors like infrastructure and appointment of judges seems plausible in all criteria and can lead to increased efficiency, as with the rise of education and digitalization, more and more cases will be filed and hence the courts must be ready for any challenges.

Conclusion

In recent times, the people have become more educated towards their rights and also highly dependent on the judiciary for justice, they put their utmost trust in it and so it must uphold their trust and hopes. It cannot afford to keep delaying and stacking cases up, cases stretching as long as 10+ years is no less than injustice. Hence, it is time to make necessary reforms and strengthen the courts to dispense justice quickly and properly.

Author: Satrajit Somavanshi from Rajiv Gandhi National University of Law, Patiala, Punjab.

Analysis: Food Security Act

Reading time:8-10 minutes.

On 14th July 2020, the Supreme Court bench consisting of Chief Justice S.A. Bobde, Justice R. Subhash Reddy and Justice A.S. Bopanna, after hearing a petition filed by the Non-Government Organization PUCL (People’s Union for Civil Liberties), issued a notice in a plea seeking enforcement of provisions of maternity benefits including monetary relief to pregnant women and lactating mothers in accordance with the National Food Security Act, 2013 (hereinafter referred to as “The Act”). The Bench has directed the Central Government to file a report on distribution of Rs. 6000 as a part of the maternity benefits under The Act.

Facts of the Issue

Back in September 2015, the Supreme Court had sought a response from the Central Government on a plea seeking proper implementation of schemes related to maternity benefits and proper distribution of food grains at subsidized rates, to the poor, through the Public Distribution System, by all the States and Union Territories. However, it is claimed that even after the lapse of the statutory time-limit, the process of identifying the beneficiaries of the schemes was not completed and the provisions of The Act were not implemented properly.

Amidst the nationwide lockdown that has been imposed due to the pandemic outbreak, this issue assumes even more importance than usual, on account of the adverse impact of the nutritional and economic needs of lakhs of Indians during the lockdown. Senior Advocate Colin Gonsalves, appearing on behalf of PUCL sought a status report regarding steps that are being taken by the authorities, extending financial help to poor, pregnant and lactating mothers. The incentive received under Janani Suraksha Yojana may be accounted towards the maternity benefits. The provision of meals under the Integrated Child Developments Services scheme (hereinafter referred to as “ICDS”) had a low coverage. Considering the high mortality rates of women and children coupled with the present pandemic situation, the issue on hand is of utmost importance.

Legal Provisions Involved

According to Section 4 of the National Food Security Act, 2013, all lactating mothers and pregnant women are entitled to no less than Rs. 6000, as a part of maternity benefit. They are also entitled to free meals through local anganwadis during pregnancy, and up to six months after child birth. The guarantee of adequate food and nutrition is derived from Article 21 of the Indian Constitution which provides for right to life. The Supreme Court has on various occasions interpreted proper health and nutrition, as part and parcel of the right to live with dignity. The Act bestows an obligation on the States and Union Territories along with local authorities to provide food to the poor people at subsidized rates as specified under the Targeted Public Distribution System in Schedule I from the State Government. It also includes children below the age of fourteen and pregnant women.

Critical Analysis

The main purpose of The Act is providing food and nutritional security and to protect men, women and children from food deprivation and hunger by ensuring that adequate quantity as well as quality food is accessible to the people at an affordable price. However, its objectives also included sanitation, healthcare, pensions and many others which are not directly related to food security.

The Act is an opportunity for the Indian Government to address both short-term and long-term food security issues. Therefore, it has to take a step beyond just piece-meal and half-hearted measures to tackle immediate hunger as well as availability, accessibility and nutritional outcomes. To achieve this, the authorities have to invest and make budgetary allocations to ensure production and effective distributions.

The major issues surrounding implementation of The Act is identification of the beneficiaries of maternity benefits. The two classifications of beneficiaries under The Act are general beneficiaries and priority beneficiaries. But the Act is silent on the criteria for classifying a beneficiary as a “priority beneficiary”. The other major problem is related to allocation of funds. The Act provides for cost-sharing between the Centre and the States, but since the cost of major schemes will be borne by the States, it might place a burden on the States, especially if the States do not have funds or the state assemblies refuse to allocate funds to the same. This will result in adverse effects on the implementation of The Act.

The Act can prove to be a game-changer if issues like corruption, leakage and wastage can be overcome by the Government. This can be done by involving local bodies and increasing local participation. By following the example of states like Tamil Nadu and Chhattisgarh, transparency and efficiency in food distribution can be achieved. One way of increasing local participation is by way of cooperative ration shops, which have proved successful in other States.

Conclusion

It is quite encouraging that The Act provides for free and nutritious meals to children along with pregnant women and lactating mothers. Coupled with proper implementation, the problems regarding food and nutrient security can be reduced by this Act. The many welfare schemes that have been designed for the poor masses in India, can achieve better results if they are integrated with one another. For example, countries like Brazil and Bangladesh have bundles income and food transfers with initiatives dedicated to education and healthcare. The success of all the schemes and initiatives should be measured in terms of the number of poor people who become self-reliant in future.

Author: Samikshya Mishra from National Law University Odisha.

Editor: Astha Garg, Junior Editor, Lexlife India

Analysis: SC on Accident-Related Compensation by NHAI

Reading time: 8-10 minutes.

Motor accidents are an extremely common occurrence in India. They often happen on account of undulations or problems with road work and unsatisfactory construction. The question which comes up over and over, is “who is to be held responsible for these accidents?”. If there was no second party involved, and the cause of the accident was potholes on the road or the road having been washed away in the monsoon; what can the injured or aggrieved party do, except do blame his own stars?

But in fact, there is someone to blame!

The Supreme Court in the case of The Director General (Road Development) National Highways Authority of India Vs. Aam Aadmi Lokmanch addressed the case of an accident caused on account of poor construction of highway roads. The Apex Court, after great deliberation held that the National Highway Authority of India (NHAI), who is responsible for making highways in India, and is also responsible for maintaining them, owes a duty to the people travelling over them. The Court held the NHAI accountable for their failure in their duty, and thus ordered them to pay a certain sum as compensation to the aggrieved.

Facts of the issue

The facts that led up to this decision were that on 6th June, 2013, Vishakha and Sanskruti, were travelling on National Highway-04, when as a result of over-mining, a small hill by the side of the highway was destroyed. The resulting debris and a part of the hill collapsed and slid down to the road, which took the lives of both Mother and Daughter.

After this incident the Pune Bench of the National Green Tribunal, on an application by Aam Aadmi Lokmanch found that the accident was the result of illegal mining and hill destruction near the highway by a certain contractor by the name Rathod. The NGT held the NHAI and Rathod are jointly liable to pay a compensation of 15 lakhs to the next of kin of the deceased. NHAI appealed to the Supreme Court, claiming that it did not have any responsibility for the event, but their plea was rejected by the Apex Court, which upheld the NGT’s order. In doing this the Supreme Court referred to a series of case laws holding that a statutory/public corporation can be held liable for a tortious liability. (Municipal Corporation of Delhi v. Sushila Devi)

Legal Provisions Involved

Sections 4 and 5 of the National Highways Act, 1956 read with Section 16 of The National Highways Authority of India Act, 1988, establish the responsibility of the NHAI to maintain the national highways. The Environment (Protection) Act, 1986 was also involved vis-a-vis the issue pertaining to the mining area being in excess of 5 hectares, which required an environment clearance, which was not duly obtained.

Had the contractor responsible, obtained the requisite Environmental Clearance, he would have realised the shortcomings in the excavation activity and this would also have had the effect of alerting the authorities.

Critical Analysis

This decision of the Supreme Court was long standing and is very welcome in the current scenario where approximately 1.35 million people die in road accidents each year. In accidents with involvement of another party, the next of kin of deceased or the aggrieved themselves, have someone to blame, and claim compensation from. However, even this much solace is often not available in road accidents occurring on account of deficient construction. These incidents are often attributable to parties who are not physically present at the scene of the event, but who could have prevented its occurrence, in one way or another, by acts or omissions. In this case, the Supreme Court has taken the protection to victims of road accidents up a notch, by recognising the culpability of the NHAI and the Contractor.

The NHAI has been long evading its responsibility qua road accident victims. However, the Apex Court has put an end to this saga, by pointing out in express terms, the statutory duty of care, that the NHAI owes, to anyone who travels using the National Highways. In the present case, the NHAI allowed the said mining activity, and was aware of all its facts and figures, but did nothing to prevent it’s ill-effects. As a result of which, it owes a level of responsibility to the next of kin of Vishakha and Sanskruti. Since the Contractor was responsible for conducting the mining activity which resulted in the accident, without getting proper permission, he was in contravention of the law and thus, he also owed a level of responsibility.

The Supreme Court also held the NGT was well within its jurisdiction in passing such a direction, thereby once again highlighting the importance of the NGT and its role in such activities.

Conclusion

The Apex Court has truly given justice to the next of kin of the deceased persons in this case and has once again shown, by this pathbreaking judgement, that corporate bodies are not outside the ambit of tortious claims. This case holds a candle to our justice system, truly reflecting what justice looks like, and that even in these uncertain times the Courts still look after its citizens.

Author: Siddhant Singh from Hidayatullah National Law University, Raipur.

Editor: Astha Garg, Junior Editor, Lexlife India

Analysis: J&K Internet Restriction

Reading time: 8-10 minutes.

The Jammu and Kashmir (hereinafter J&K) administration has yet again announced an extension of internet restrictions in the region. The restrictions will be in force till 29th July, 2020. The instant order was passed by the J&K Home Secretary on 8th July, 2020 citing security reasons and stating that internet could be used for “uploading / downloading /circulation of provocative content on the social media.” Internet restrictions started in the newly formed Union Territory after abrogation of Article 370 in August 2019, and have been continually in force, ever since. The Supreme Court had raised its concerns over the issue and had also ordered, in the month of May 2020, to constitute a Review Committee in the matter. However, the J&K administration proceeded without complying with the orders of the Court and has announced the instant extension without constituting the said Committee.   

Facts of the Issue

In August 2019, the internet services in J&K were completely suspended to prevent the anticipated terrorist activities which, according to the J&K administration and the Centre, could have aggravated due to the abrogation of Article 370. After a complete internet shutdown for about 5 months, the Supreme Court on January 10th 2020, ordered that there should be a review of all the restrictive orders that were in place in the Union Territory for the past 5 months. After the said order by the Court, internet restrictions were partially lifted and access was given to around 1674 white-listed websites. While only select few institutions were given this access, social media continued to remain blocked. The blockade was finally lifted on 4th March 2020, but the internet speed for mobile users was mandated to be 2G. In the judgement of Foundation for Media Professionals v. Union Territory of Jammu & Kashmir the Supreme Court ordered, on 11th May, 2020, the constitution of a ‘Special Committee’ to scrutinize the orders of internet restrictions passed by the J&K administration over the last few months. However, the internet restrictions were extended by the authorities without the constitution of the said ‘Special Committee’ that was ordered by the Court. The latest of such extensions was announced on 8th of July by the J&K Secretary (Home) that stated extension of the internet restrictions till 29th July with only 2G speed of data accessible to mobile users. A Contempt Petition was filed by the Foundation of Media Professionals against the orders passed by the administration in blatant non-compliance of the Supreme Court’s order. However, the petition is still to be listed for hearing.

Legal Provisions Involved

The suspension of internet services raises pertinent questions about the constitutional rights of the people in the valley. While imposing restrictions for a limited period of time for security of the region seems reasonable but continual extensions over a considerable period of time affects the fundamental rights of the people in Jammu and Kashmir. Freedom of Speech and Expression is guaranteed under Article 19(1)(a) to the Citizens of India. Though this right cannot be taken away from the citizens, the right is also not absolute in nature. Article 19(2) provides that reasonable restrictions can be imposed on the rights guaranteed under clause (1), in the interests of security of the State, however to what extent these restrictions may be imposed, is what us being debated in the instant case. The Supreme Court in its decision in January had observed that indefinite restrictions do not conform with the principles of proportionality laid down under Article 19(2) of the Constitution.

All the three organs of the State must work in a way that they protect and promote the rights of the people guaranteed under Part III of the Constitution. The concept of balanced constitutionalism works on the exact principle that all the three organs of the State should be equally responsible for upholding the rights of the people. Therefore, imposing internet restrictions too must be done only to the extent that it does not unreasonably restrict the rights of the people.

Critical Analysis

The ‘Special Committee’ to be formed, as directed by the Supreme Court for reviewing the orders passed by the Government indeed seems to be a viable option to review the current status and necessity of the restrictions imposed in the valley.  The bench headed by Justice N. V. Ramanna had observed that since the issue pertains to the security of the entire nation and affects both, J&K and the rest of the country it would be beneficial to include officers from the State as well as National level. This observation of the Court seems to be significant, since the Review Committee will be able to assess the restrictions in an objective manner and will be able to decide whether the situation in the valley demands extension of such restrictions. While suspension of internet services seems to be unreasonable exercise of power to many, it cannot be denied that internet and the use of social media had a key role in spreading terrorism in the valley. A lot of misinformation and provocative content was spread through the internet in order to disrupt peace in J&K. An overwhelming majority of today’s youth uses social media and it can be used to misguide them or provoke them to indulge in unlawful activities. It is therefore important to keep a vigilant eye on what is being circulated through the internet in an area such as Jammu and Kashmir, where the situation has always been fragile.

Conclusion

Liberty and authority should always be exercised in a balanced manner. While protection and maintaining security of the State and its people is of utmost importance, but all the actions taken to achieve this end should be proportionate, and should be assessed from time to time. The situation in J&K has always been special and complex and therefore it has seen imposition of rules which other parts of the country may not have experienced. It is debatable whether the successive internet restrictions imposed in Jammu and Kashmir are valid or not. However, the orders of the Hon’ble Supreme Court should not be ignored either. All the steps that are taken up by the Legislature, Executive or the Judiciary should always be weighed against the fundamental rights of the people.

Author: Avani Jain from National Law Institute University, Bhopal.

Editor: Astha Garg, Junior Editor, Lexlife India

Analysis: SC on Cancellation of Registered Sale Deed

Reading time: 8-10 minutes.

Recently, a Division Bench of the Hon’ble Supreme Court, in Dahiben v. Arvindbhai Kalyanji Bhanusali, held that non-payment of complete sale consideration cannot be a ground for the cancellation of the Registered Sale Deed. The case came before the Hon’ble Court after the Trial Court and Gujarat High Court allowed the application filed by the Respondents and held that the suit was barred by limitation. The Court, relying on various provisions and circumstances allowed the application under Order VII Rule 11(d) of Code of Civil Procedure, 1908 (hereby Order VII Rule 11) and dismissed the appeal.

The Plaintiff were in ownership of a plot of agricultural land which they decided to sell to the Respondents through a Sale Deed. However, the Plaintiff argued that the full payment of the sale consideration had not been made by the Respondents and it was inter-alia that the Court be pleaded to cancel the Sale Deed. The Plaintiff further, claimed the physical possession of the suit property to be restored to them. The Respondents on the other hand, contended that the plaint did not disclose any cause of action and was barred by the limitation, both of which are grounds for rejection of a Plaint under Order VII Rule 11, CPC.

Rejection of Plaint Barred by Limitation

Order VII Rule 11 of the Code of Civil Procedure, lays down an exhaustive list of technical limitations which can cause a plaint to be rejected. The provision empowers the Court to reject a plaint if it fails inter-alia, to disclose any cause of action, or is barred by limitation, without going into the merits of the case at all. The given case before the court was pertaining to the cancellation of a Registered Sale Deed on similar grounds. Dismissing the Appeal, the Apex Court held that as per Articles 58 and 59 of the Limitation Act, 1963, the limitation period for the cancellation of an instrument or rescission of a contract is three years commencing from the date when the right to sue first accrues;which the Plaintiff failed to observe and therefore, the plaint filed was time-barred.

Intention of the parties is a sine qua non for the completion of sale

The Court analysed the averments made in the plaint and opined that in case where the full amount of consideration of sale has not been paid by the purchaser, the seller cannot revoke the ownership. Referring to the Section 54 of the Transfer of Property Act, 1882, the Court held that transfer of ownership is a condition which is prerequisite to constitute a ‘sale’. The ownership has to be absolute, i.e. the transfers of rights and interests possessed by the transferor should be absolutely transferred to the transferee without any reservation. Moreover, the Section also talks about the “price paid or promised or part paid and part promised” for a successful transfer. Therefore, in terms of the language of the provision, the Court held that if the payment is not complete and the Sale Deed has been executed, the sale is considered to be complete and the transferee gets the ownership of the property.

The Court established that the condition sine qua non for the transfer of ownership and completion of the sale is the intention of the Parties. The terms of the Sale Deed, the conduct of the parties and the records have to be examined to gather the intention behind the Agreement and if they confirm that the intentions of the parties were to execute the transfer, then the Sale Deed stands as valid, even though the entire sale consideration may not have been paid.

Observing the conduct of the Plaintiff and the documents submitted by them, the Court held that since they did not complain of any non-payment issue for more than five years, the plaint appears to be an after-thought. The Bench said that the Plaintiff has other recourses and remedies under the law to receive the full payment, but cancellation of the Registered Sale Deed is not one of them.

The Appeal was dismissed and the Plaint was rejected under Order VII Rule 11(a)&(d) i.e. for being vexatious and time-barred.

Author’s Analysis

In Kaliaperumal vs. Rajagopal the Apex Court held, “If the intention of parties was that title should pass on execution and registration, title would pass to the purchaser even if the sale price or part thereof is not paid. In the event of non-payment of price (or balance price as the case may be) thereafter, the remedy of the vendor is only to sue for the balance price.” A similar approach has been taken by the Court in the case at hand which primarily protects the interests of both the Parties involved. The need to establish the presence of intention for executing a sale deed keeps the vendee away from exploiting the vendor and exercising any undue influence on him. On the other hand, it also keeps a check on the foul play of the vendor who might distort facts and cancel the Registered Sale Deed as per her whims and fancies causing major inconvenience to the vendee.

Further, although the Court made the assurance that there are other remedies provided by the law to extract the balance consideration, measures like a ceiling period should be devised to prevent the unreasonable delay in payment and to curb the emotional and financial trauma it causes to the vendor who is not allowed to cancel the Sale Deed after execution. This might help in striking a balance between the rights of the Parties.

Conclusion

Given that such disputes occur very often in these sales transactions, the judgement of the bench summarized the application of Order VII Rule 11 and of Section 54 of the Transfer of Property Act, 1882 that govern such transfer and it is imperative to note that when intention vis à vis cause of action is disputed; the revenue records, the record maintained by the Collector, the transaction details and the conduct of the parties can be examined at the very threshold and to enable the Court to summarily dismiss the suit without proceeding with a meritless claim.  

Author: Ananya Bajpai from West Bengal National University of Juridical Sciences (NUJS), Kolkata.

Editor: Astha Garg, Junior Editor, Lexlife India

Analysis: Plea Regarding Cancellation of Amarnath Yatra

Reading time: 8-10 minutes.

India is staunchly driven by religious feelings and devotions towards its thousands of Gods. Hinduism being the majority religion on the sacred land, the feeling of celebrating Hindu religious festivals, congregations, and pilgrimages are strong. Lakhs of Hindus in the months of July and August visit the Amarnath shrine. Located at an altitude of 3.8 Km from the sea level, and at the end of the Lidder Valley, situated near Pahalgam & Baltal, Jammu & Kashmir Union Territory, the shrine is considered as one of the holiest places in the Hindu religion. To pay offerings and visit the holy Shiva Lingam, Amarnath Yatra is organized by the Shri Amarnath Ji shrine Board each year.

The Yatra (pilgrimage) is so important to the Hindu religion that the government of J&K has enacted the “Jammu and Kashmir Shri Amarnath Ji Shrine Act, 2000”, which establishes a Board that streamlines and manages the annual yatras. Unlike prior years, the Shri Amarnath Ji Shrine Board (hereinafter referred to as “Board”) on 22nd April 2020, decided to cancel this year’s (2020) Yatra, in the light of the COVID-19 pandemic and nationwide lockdown. The Yatra cancellation order was later withdrawn by the same Board. This decision of the Board was challenged by a Petition filed by Shri Amarnath Barfani Langars Organisation, in the Supreme Court of India on 9th July 2020, after the Board permitted a few Bhandara organizations, to reach the venue on or before June 28, to start preparing for the seva (service) for the pilgrims from July 3.

Petitions in the Supreme Court of India:

The main contention of the petition was that if pilgrims are allowed to attend the yatra it would cause a “serious public health issue in the present pandemic situation.” The petition maintained for a total suspension of this year’s yatra for the common devotees, while also highlighting how the fundamental rights guaranteed under Article 25, Article 21 read with Article 14 of the Constitution can be protected if the Court decides to cancel the yatra. The petition states that “the entire pooja be restricted only to the essential persons/trustees, etc., and not be open to devotees and pilgrims.” The petition wanted to restrict the participation to lessen the spread of the coronavirus. It suggested a live telecast of the ceremonies and yatra for the devotees who cannot attend it.

The petition raised the point of reasonable restrictions by claiming that enforcement of Article 25 (right to religion) is “subject to public order, morality and health.” In this case, the exception of public health was raised by the petitioners. For Article 21 read with Article 14, the petitioner argued that the Apex Court “has time and again held that Article 21 includes the right to health.” Claiming that the COVID-19 crisis is “unprecedented,” the petition averred that “the continuation of the Shri Amarnath Yatra, and or participation of lakhs of devotees and pilgrims will only fuel the fire of the pandemic.”

The Supreme Court of India on 18th June 2020, ordered cancellation of a similar yatra to Jagannath Puri temple, which was scheduled to take place on June 23. The Supreme Court gave the pandemic as a reason for the cancellation of yatra, however, this decision was changed by the Court on June 22, saying that they shall leave the decision-making power to the best wisdom of the responsible State Government i.e. Odisha State Government. The Amarnath Yatra petition was due to be heard by the Apex Court on July 13, 2020. The judicial bench headed by Justice DY Chandrachud decided not to entertain the petition and consequently dismissed it with costs.

Critical Analysis:

The petition filed by Advocate Amit Pai on behalf of Shri Amarnath Barfani Langar Organisation in July was similar to the petition filed by advocate Ranjeeta Rohatgi on behalf of the Odisha Vikas Parishad in June 2020. The Court on June 22nd had decided that the decision regarding Jagannath Puri Yatra shall be left with the State Government. The Court must have followed the reasoning of the earlier ruling (Jagannath Puri yatra) and decided to dismiss the plea (Amarnath yatra) with cost. The Court, unlike the earlier ruling, did not guide the Government to intervene in matters pertaining to Amarnath yatra, hence maintaining the status quo. The Board is free to conduct the yatra, subject to restrictions and guidelines issued and imposed by the concerned Governments.

The petition filed by Shri Amarnath Barfani Langar Organisation raised some key points that needed much deliberation. The issue of public health is the most important and at the core of the petition. Even if the country is moving into a phase of unlocking and situation might seem under control. The country cannot afford a sudden spike in COVID-19 cases. Looking at the sheer amount of devotees that participate yatras annually, the probability of the spread of the virus is higher than normal. The petition suggested some reasonable restrictions on the right to religion and other fundamental rights that the Governments and Courts need to ponder upon.

While the suggestion of Live Darshan seemed a logical answer to the question, how did the Government and Board plan to curb the spread of the virus? The Board has decided to take positive steps to treat any possible health issues by establishing medical camps and employing doctors wherever possible. Though the Board has also issued a compulsory health certificate that devotees have to fill, the certificate is not specific to identifying COVID-19 victims, but general health issues. The authorities familiar with the issue have ensured that yatris would be tested for COVID-19 and only negative cases will be allowed to undertake the yatra. But as of 16th July 2020, the Board has only issued general health guidelines and advisories on their official webpage.

Conclusion:

In conclusion, the petition had suggested some points that the Government and Courts should take notice of. Live Darshan and limited participation in yatra seem like a viable alternative. All this is done to save the country from any possible increase in COVID-19 cases, and also, to preserve the sentiments and beliefs of the people. The Board should make a concrete plan, both on paper and in practice, to limit the spread of the virus. However, lack of facilities and amenities at such a high elevation is always a problem that the responsible Government must also devise a plan for, in order to ensure the safety of all individuals participating in this yatra. Basic rules of the lockdown like social distancing and wearing a mask in public spaces should be followed. The authorities have to be aware of the fact that the yatra is taking place during a worldwide pandemic, and one wrong step can be detrimental to the lives of many people.

Author: Tejas Kandalgaonkar from MNLU, Mumbai.

Editor: Astha Garg, Junior Editor, Lexlife India

Analysis: Plea seeking Waiver of Private School Fees

Reading time: 8-10 minutes.

The Covid-19 pandemic has brought the whole world to a standstill. People from all walks of life are facing the brunt of the pandemic. Amidst the pandemic, the education industry was tasked with keeping classes going for its students. With schools shut due to the lockdown, physical teaching became an impossibility. This resulted in online classes being formalised. In the current context, online classes are classes taken by the teachers that students attend from their homes through a computer, laptop, or smartphone. For the smooth conduct of online classes, the student and teacher must have a stable and fast internet connection, a smart device and a basic understanding of how to operate the device and applications. 

While there are apparent advantages of online classes, such as inter-personal interactions between teachers and students while sitting in the comfort of their homes, there are obvious disadvantages too. The virtual schooling systems cannot by any standard of comparison be considered at par with the overall schooling experience. While private schools are trying their best to incorporate curricular, co-curricular and extra-curricular activities within the ambit of this virtual system, several parents are unhappy with the fees that is being charged from them under the pretext of online classes. This was the backdrop that led them to challenge the fee structure before the Hon’ble Supreme Court. In the petition, the Petitioners have expressed disappointment at the Union and State Governments for not putting out proper guidelines for the conduct of the same. However, the Hon’ble Apex Court dismissed the Petition and asked the Petitioners to approach jurisdictional courts in their individual States.

Facts of the Issue

The Petitioners, who are the guardians of the wards studying in different schools of the country, had approached the Hon’ble Supreme Court by invoking its jurisdiction under Article 32, seeking the protection of right to life and right to education guaranteed under Article 21 of the Constitution of the country.

The Petitioners claimed to be aggrieved with essentially two issues: the demand for payment of fees; and the non-payment of which will result in their child’s termination from the school. They alleged harassment by the school authorities to pay fees in advance. They claim that despite the schools not functioning as usual, they are being forced to pay fees for such periods. This Petition was at the time when online classes had not become the usual norm that it is today. No rebate had been offered to the parents, in fact, a fee hike had been opted by some school under the pretext of online classes.

The secondly grievance alleged by the parents was with the variance in orders across the various States in the regulation of online classes. The Petitioners prayed for a uniform set of guidelines for the whole country. Also, they complained that no order or notification has been issued for the students of economically weaker sections (“EWS”), who do not have access to the internet or devices, and are therefore at a naturally disadvantageous position with respect to online classes. Thus, violating their right to education, which is recognised within the ambit of Article 21, and specifically incorporated under Article 21A. They further contended that online classes are taken in an unregulated manner, which causes health problems and also makes kids prone to cyber offences. Lastly, the Petitioners prayed that their wards be not expelled from schools on account of default in payment of fees and to constitute a committee, to regulate the school fee structuring at a pan India level.

Legal Provisions Involved

The prime attention of this debate, and consequent Petition has been focused on Article 21, which guarantees the right to life and Article 21A, which guarantees the right to education for all children between the ages of six and fourteen years. In furtherance of which, The Right of Children To Free And Compulsory Education Act, 2009 (“the Act”) was enacted squarely for the purpose of ensuring that the benefit of education reaches all children, irrespective of socio-economic status. The scope of the Act extends to private schools which receive aids from the Government and it requires such schools to reserve 25% of its seats for students from the economically backward sections. This has made education more accessible, universal as well as democratic. These are the primary legal provisions one finds embroiled in the issue.

The scope of Article 21 is enormous and through judicial review, the scope of Article 21 can be enlarged. It encompasses all those aspects of a man’s life which make it meaningful, complete and worth living. It is within this context that financial constraints act as a thorn. The Petitioners rightly pointed out that the fees demanded from them under normal circumstances covers the additional fees of library, electricity, transport etc. All of these are facilities and amenities that the students are unable to access at the moment, on account of the lockdown restrictions. Hence, the parents claimed that they were being unfairly charged for services that their wards have not utilised. Further, a hike in fees during such times was claimed to be not justified, for obvious reasons. The consequence of the parent’s failure to pay fees, would result in the student being expelled from the school, impeding their education.

Then comes the aspect of doctrine of parens patriae, which means that the State acts as a parent to guard its citizens from any calamity, and look out for their best interest. The Petitioners invoked this doctrine, demanding the State to protect the students from expulsion on account of default in payment of fees.

Critical Analysis

It is a constitutionally guaranteed right of every citizen to approach the Hon’ble Supreme Court in cases of violations of its fundamental rights. In the present case, the case of the Petitioners was that their fundamental rights under Article 21 and 21A were being violated. In such a scenario, the people look up at the Hon’ble Supreme Court to remedy their grievances and provide them with justice. However, the Hon’ble Supreme Court ruled against the Petitioners and instead asked them to approach the respective High Courts of their states, some of which have already allowed school fees to be paid without any reductions. In the Author’s view, the Apex Court ought to have paid more heed to the Petition and the contentions raised therein. Afterall, the reliefs being sought were of equitable nature. 

Conclusion

Financial constraints are the main problem people are facing in these trying times. Waiver of school fees, at least for the facilities not availed by the students during the lockdown should be mandated. Also, it is imperative that parents are given a fair amount of time to pay the fees and are not harassed and threatened with expulsion for the same. Insofar as online classes are concerned, it is advisable that States release comprehensive guidelines so as to regulate their structure and make provisions to afford feasibility of this development to all student, alike. A moratorium similar to the loan moratorium proposed by Reserve Bank of India might be considered in the education industry, for fee payment as well. Such decisions will be in the best interests of the students and the society.

Author: Sreyas T. Manoj from The National University of Advanced Legal Studies, Kochi.

Editor: Astha Garg, Junior Editor, Lexlife India

Constitutional Law: Amendability of Constitution

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Reading time: 8-10 minutes.

A brief study into political societies throughout the human civilization will bring forth the existence of an order based on the shared values of the society. Such cherished values have been presented in various forms, the modern avatar being a written piece of text called Constitution. India, after centuries of struggle, gained independence from the tyrannical British Empire in 1947 and started on its journey of being an independent nation.

Early on the journey was fraught with disturbances and uncertainties and doomsday predictions were the norm of the day. Amidst this chaos, the Indian population (albeit indirectly) chose for itself an eminent group of individuals and tasked them with the humongous task of bringing in force a Constitution for a country as diverse and fragmented as India. This group of individuals were collectively called the Constituent Assembly and after a long-drawn process which continued for almost three years they had put in place the lengthiest Constitution of the world.

While the eminence and brilliance of the Constitution makers is undeniable, they couldn’t have been entrusted with the responsibility to make an instrument which can serve through aeons of time. Thus, to realize the goals and aspirations of the republic through transient times, it was necessary to provide for an amendment mechanism, which could be used to effect changes to the supreme text itself.

The amendment mechanism was provided for by the Constitution makers by way of Article 368, which laid down the procedure to be undertaken by the Union Parliament to effect changes in the Constitution’s text. However, right from its genesis, the amending power bestowed upon the Legislature has been subjected to debates and has become an ongoing tussle between the two organs of the government- The Legislature and The Judiciary.

Pre-Kesavananda Bharati

In just a brief period of our Constitutional history of 70 years, the Constitution has been amended over 100 times. While India still didn’t have an elected government, a Constitutional Amendment was passed in 1951 as a response to the challenges emerging from the government’s socialist policies of land ceiling and redistribution so as to secure public welfare. The other major issues with which the first amendment dealt were freedom of speech and reservations. The first Constitutional amendment found its way to the Supreme Court where insertion of Article 31A and 31B were challenged. Both the Articles coupled with the entry of the Ninth Schedule, made certain laws inscrutable with respect to the Fundamental Rights. The Apex Court was called upon to decide the status and Constitutionality of these Constitutional Amendments. The Court, basing its reasoning on the distinction between legislative and constituent power held that Constitutional Amendments are an exercise of constituent power and is thus not covered by the definition of law under Article 13(2). By holding Constitutional Amendments distinct from law, the Court made them uncriticizable to any of the ‘sacred’ fundamental rights. By not subjecting amendments to the most sanctimonious part of the Constitution, the Court opened the floodgates of providing the parliament with unbridled and unrestricted amending powers.

The next major Constitutional amendment challenge in the Supreme Court came up in the case of Sajjan Singh which challenged the 17th Amendment. Though the case didn’t change the legal landscape in relation to amendments, it brought up some important points for consideration in the minority opinions of Hidayatullah J. and Mudholkar J. Interestingly, the first reference to a basic structure of the Indian Constitution came in the opinion of Mudholkar J., much ahead of the landmark case of Kesavananda Bharti. The reservation and discomforts posed as interesting questions by the minority judges, were answered by an 11-judge bench decision of the Supreme Court in Golak Nath, where a narrow majority removed the distinction between constituent and legislative power and subjected all the Constitutional amendments to the test prescribed under Article 13(2). However, the solution in Golak Nath was simple, but unconvincing. The obvious result of the judgement was a counter-amendment by the Indian Parliament which effectively overruled the courts’ opinion. The 24th and 25th Amendments were challenged in the case of Kesavananda Bharti, which ushered in a new era of Indian Constitutional Jurisprudence.

Post-Kesavananda Bharati

The largest bench of the Supreme Court to have ever existed, decided the fate of Constitutional Amendment in a 7:6 majority. HR Khanna J’s opinion made the ultimate difference and changed the Constitutional landscape forever. The longest Indian judicial decision to have ever been authored put in place substantial limitations to Parliament’s amending powers. It re-recognised the difference between Constitutional law and ordinary legislation and rejected the reasoning of Supreme Court in Golak Nath. The court placed reliance on Article 368 itself and found inherent limitation to amending powers. The court distinguished between ‘to what extent an Act can be called an amended Act’ and ‘at what stage it traversed into the realm of enacting a new Constitution in itself’. The judges realizing the limitations in previously decided cases opted for an open-ended solution and birthed a giant in the form of “The Basic Structure Doctrine”. The Basic Structure was merely an illustrative list which listed certain ‘sacred’ areas, ideas or themes of the Indian Constitution which were meant to be unamendable throughout the life of the Constitution. Thus, the court provided the parliament with the power to amend each and every part of the Constitution including the Fundamental Rights, it made broad restrictions to the exercise of its power.

The Journey Forward

The Constitutional journey of Independent India has been an interesting one and is still unfolding every day in the halls of parliament and chambers of justice. From an initial over-emphasis on textual interpretations and positivist pronouncements the Apex Court has made a long journey by deciding cases on overtly naturalist principles. A recent example of such a liberal approach could be seen in the 9-judge bench decision holding right to privacy as a fundamental right under the text of Article 21. The Puttaswamy judgement would have been unthinkable to the eminent judges of the yester-years, which is a tale of how far the Indian jurisprudence has evolved. Many a times, Constitutional Amendments have come up to challenge in the Supreme Court after the momentous ruling in Kesavananda Bharati. But the Basic Structure Doctrine has stood the test of time and has ensured safeguarding of the Constitution and the people which “gave to themselves” the Constitution in hope of undoing the pains and injustices of centuries of tyrannical oppression.

An emerging and ever-developing challenge in the realm of Constitutional law has been to protect the Constitution from the very institutions it has legitimised. The practice of seeing an elected government as an oppressor has been a long-standing practice and it has invited severe criticism and scrutiny over the year, and rightly so. However, the attitude of seeing the judiciary form rose-tinted glasses should also undergo necessary adjustments and its powers should also be constrained and checked, for an overambitious judiciary can be as detrimental to the people’s Constitution as an elected body of representatives. In the end, the Constitution, which was given by the people to themselves, should remain so, and any attempts of co-opting it by governmental institutions should be resisted.

Author: Anshum Agarwal from West Bengal National University of Juridical Sciences (NUJS), Kolkata.

Editor: Astha Garg, Junior Editor, Lexlife India

Constitutional Law: Judicial Creativity in India

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Reading time: 8-10 minutes.

Judicial creativity in India has been a very integral part of the justice system and has been a cornerstone is providing a modern outlook to the judiciary. Judges have been not only applying the law to the letter but also moulding it to suit the present time and situation. Judicial creativity is very important to provide true justice to the citizens of the country, as many times the legislation is not clear on certain aspects of the law or is silent on them. It is in these scenarios that the creativity of the judge comes into the picture, the judge can apply the law in a way which is truly just and provides a better resolution to the victims. This becomes even more important in the case of The Constitution as it is not only the law of the land but a 70-year-old document at this point.

Explanation of the concept

Judicial creativity can be described as the fluid part of the law, as a layman we understand law to be the rules and regulations made by the government. The problem comes when enough time has passed that those rules seem archaic and now do not seem relevant, it is here that the judicial creativity comes into the picture. Judges using their wisdom and innate sense of justice give meaning to the letter of the law that is relevant to the time and more importantly is relevant to the facts of the case.

Examples of Judicial Creativity in Constitutional Law and the Provisions Involved

In India two major landmarks in judicial creativity were when the basic structure doctrine was introduced in Kesavananda Bharati v. State of Kerala and when the concept of judicial review was upheld in I.R. Coelho v. State of Tamil Nadu. In Kesavananda Bharati the judges recognized that there are certain basic parts of The Constitution that cannot be changed or amended as they form the core of The Constitution. This was named the “basic structure” of The Constitution.

In I.R. Coelho the judges at the time saw the tyranny caused as a result of Schedule 9 of The Constitution being kept out of the purview of judicial review and thus over turned the previous judgement and held that all laws placed under Schedule 9 are within the purview of judicial review.

Critical Analysis

The above stated case laws are a great examples for understanding the concept of judicial creativity. In Kesavananda Bharati the courts used their creativity to make sure the fundamentals of the constitution remain unchanged and hold the true essence of a democracy by making a basic structure doctrine. This doctrine encapsulated the essential elements of our constitution like the fundamental rights, judicial review etc. and the Courts held that the basic structure of the constitution cannot be changed and any law passed by the legislature will have to abide by and be in consonance with this basic structure. This ensured that the rights of the people cannot be violated by any legislation not only in the present but in the times to come as well.

In I.R. Coelho, the law on paper stated that laws under Schedule 9 were outside the purview of judicial review. The judges however used their understanding of the law and their innate sense of justice to recognize that this was in violation of the basic structure of The Constitution and thus could not be held valid.

Conclusion

Judicial creativity in constitutional law has been widely applied in India which helps in providing better justice to the citizens of the country however, there remains scope for improvement. Time and again we see cases where the law is applied but justice isn’t provided as just reading the law to the letter is not the solution. There remain a large number of cases where our courts, especially at the lower levels could provide better solutions by applying the law to the particular facts and moulding it to provide a better solution.

Author: Siddhant Singh from Symbiosis Law School, Pune.

Editor: Astha Garg, Junior Editor, Lexlife India

Explained: What is a Contempt Notice?

Reading time: 8-10 minutes.

This is the remedy granted to Courts as they can sou motu take cognizance of offences of contempt that takes place. The Court can issue a contempt notice by mentioning the grounds of contempt on the basis of which the accused is being held liable. Anything that curtails the freedom of judicial proceedings which leads to hampering the administration of law and interference in the course of justice is known as Contempt of Court. There are various definitions provided by various jurists. Oswald defines contempt as any conduct that brings disrespect or disregard to authority and administration of law or interfere or prejudice parties during litigation. Halsbury defines contempt as words spoken or written which obstructs the administration of justice.

A very recent incident took place on 9th June when Gujarat High Court bench comprised by Justice Sonia Gokani and Justice NV Anjaria issued a criminal contempt notice to GHCAA President Yatiz Oza as spoke some “Scurrilous” remarks against High Court and its Registry in a live press conference on facebook. Various journalists became part of this press conference where Oza called Hight Court as “Gambling Den” as in his opinion High Court only caters the litigants who have either means or powers. He also mentioned that those advocates who do not have such means or resources will be kicked by the High Court.

During the conference he also said that Registry of High Court adopts corrupt practices as it shows un-due favours to high profile cases, this makes High Court functioning for high profile, influential people. He also said that Billionaires get their cases listed within 2 days whereas poor and non-VIP have to suffer a lot. He highlighted also referred that matters of influential people were heard and orders were granted in 2-3 days while other advocates had to wait for months to get their matters listed. He also mentioned that he had same grievances from over 100 of advocates in this regard. The 2 Judge bench of Gujarat High Court said that he has put false and contemptuous allegations of corruption and malpractices on Registry of High Court and its administration.

Judges further said that without caring of true facts and in the wave of populism he has condemned the institution. He also crossed his limits by giving open challenge to the authority of Court. He being President of GHCAA said such scurrilous remarks without any substantive basis. Due to this these 2 judges suo motu issued a Criminal Contempt Notice under Art 215 of Constitution and Sec-15 of the act.

Legal provisions regarding Contempt Notice-    

Under The Contempt of Court Act,1971-

  • Sec 2(a) defines Contempt of Court are of 2 types- Civil and Criminal.
  • Sec 2(b) defines Civil Contempt of Court as “wilful disobedience or breach to any judgement, decree, order or other process of Court,
  • Sec 2(c) refers to Criminal Contempt means Publication (words or written) of any matter which- i)Scandalizes or lower the authority of any Court, ii)Prejudice or interfere with judicial proceedings, iii)interferes or obstructs the administration of judiciary.
  •  Sec.3-9 deals with defences against Criminal Contempt which are listed as-

(i) Innocent Publication and Distribution of Matter; (ii) Fair and Accurate Report of Judicial Proceedings; (iii) Fair Criticism of Judicial Act; (iv) Bonafide complaint against Presiding Officer of a Subordinate Court;

  • Sec 12 deals with Punishment for Contempt of Court. It gives powers to Supreme Court and High Court under 12(1) to Punish Contempt of Court with Simple Imprisonment of 6 months or fine upto Rs. 2000 or both;
  • Sec 14 deals with Procedure where Contempt is in Face of the Court and also lays down that who should be appointed as judges and when matter is to be heard by Chief Justice.
  • Sec 15 deals with Cognizance of Criminal Contempt in other cases and lays down that the Court can take action on its own or under motion made by the person so appointed.
  • Section 17 lays down the Procedure After Cognizance- Here it gives the guidelines of proper serving of Notice with all the necessary details and with that notice the Court should also attach necessary Affidavits and documents. Also it gives the provisions for attachment of Accused Property.
  • Section 20 lists down the Limitation for Actions for Contempt to One Year.

Under Constitution of India-

  • Art 129 and 142(2) gives Supreme Court power To Punish for Contempt itself. Also it makes SC as Courts of Record.
  • Art 215gives High Court power To Punish for Contempt itself. Also it makes HC as Courts of Record.

These are various legal provisions on the basis of which a Contempt Notice can be issued. There are various landmark judgements that support this power of Courts.

In the case of Utpal Kumar Das V. Court of Munsifs, Kanpur it was held that whenever Court asks for assistance in an order and so not provided leads to Civil Contempt of Court.

In the case of U.P. Resi. Emp. Co-op., House B. Society v. New Okhla Industrial Development Authority the SC directed Noida Authority to verify details and file the affidavits for allotment of plot. The accused submitted false affidavit to mislead the Court. It was held as a contempt of Court.

In Jaswant Singh v. Virender Singh advocate gives derogative and scandalous remarks on HC judge. It created tendency to scandalize the Court and it was held that it caused interference in Court proceedings and it was held as criminal contempt.

In case of M/S. Gatraj Jain & Sons v. Janakiraman it was stated that if a third party to the contempt petition wilfully disobey the Court order, then he cannot prevent the Court from restoring the contempt petition against him.

In Supreme Court Bar Association v. Union Of India & Anr it was held that the Procedural Aspect of Contempt is prescribed by Parliament to be applicable in SC and HC. It also held that there should be no interference in judicial proceedings and its administration.

In O.P. Sharma v. Punjab and Haryana High Court it was held that advocate is expected to act in sincere manner and should have diligent conduct. Any violation of Principles of Professional Ethics is unacceptable and brings in Contempt Petition.

In case of Dr. Subramanian Swamy vs. Union of India (UOI) constitutional validity of contempt was given. In this case, Constitution was referred and it was held that defamation is also kind of Contempt. This upheld the validity of Contempt.

In P.N. Duda vs V. P. Shiv Shankar & Others it was held that judges cannot use contempt jurisdiction to upheld their dignity. Criticism regarding “Administration” is valid.

In Justice Karnan’s Case, Contempt of court proceeding for accusing 20 judges with corruption charges leads this judge to imprisonment of 6 months. In Hari Kishan vs. Narutham Das Shashtri SC held that private person cannot file Contempt Petition u/s 15 to prevent Courts to be flooded with false accusations and also to avoid personal grudge or interest.

Conclusion

Contempt is said to be an act or omission which tends to interfere the administration of justice. Also anything published (either orally or in writing) that Scandalizes or lower the image of judiciary is also known as Contempt. There tend to be an overlap between Contempt Powers under Indian Penal Code, Contempt of Court Act and Powers of High Court and Supreme Court given under Constitution of India.

There are various laws on point but, The Contempt of Courts Act,1971 lays down provisions that help in attaining protection to the Judicial Administration. According to Article 19(1)(a) it provides for freedom of speech but this is often misused by people at large, these laws act as a limitation to such freedoms. These laws provide redressal from frivolous accusations that are made to lower the image of Judiciary.

These are very well written laws covering each and every aspect that leads to contempt of court. It also provide for discharge from punishment by remitting the award on apology on the satisfaction of court. “Administration of Justice” is to be used in very wide sense by not confining it to the judicial function of judge rather it should include Adjudicatory functions, Administration Functions and other necessary administrative functions. In my opinion Lower Courts should also be provided with the contempt powers.

Author: Madhuresh Chaudhary from Vivekananda Institute of Professional Studies , Guru Gobind Singh Indraprastha University.

Editor: Silky Mittal, Junior Editor, Lexlife India