Tag: #judiciary

Plight of Victim in Criminal Justice System

                                                        (Photo: The Daily Guardian)

You want to report,
but that could get your family in danger… And if you snitch on a real gang
leader…. they can get you bad… [The] police don’t have your back unless
you’re like someone on the news or whatever, and they will kind of give you
witness protection. But that doesn’t happen in the real world. 

–FEMALE,
SACRAMENTO

 The expression
‘victims of crime’ has been defined in section 2 of the code of criminal
procedure, 1973. Initially, the criminal justice system in India was focused on
punishment as part of the crime without much attention on the suffering of
victims of crime. The rights of prisoners were protected even after their
conviction whereas little concern was shown for the rights of victims of crime.
Though there is a wealth of data on victims of reported crime nationally, as
well as various services and programs intending to meet their needs, there
remains a dearth of clear information on how to interrupt cycles of violence
and the persistence vulnerability that keeps such an overwhelming percentage at
high risk of experiencing more crime.

 However, with the
emergence of public interest litigation, the higher courts’ attention was drawn
to this lacunae in the existing criminal justice system by social activists,
and the courts started granting compensatory relief to victims of crime, but
comprehensive legislation on this aspect of criminal justice was still awaited.
In recent times, among the many reforms canvassed for improving the criminal justice
system is the one that advocates a victim orientation to criminal justice
administration. Though there are some provisions under the Indian constitution
and some sections in the code of criminal procedure, 1973 to protect the rights
of the victims and for providing compensation, the criminal courts at the lower
level in India have ignored those provisions for a long time and not utilized
them during their sentencing processes.

 Victim plays an
important role in the criminal justice system but his or her welfare is not
given due regard by the state instrumentality. Thus, the role of high courts or
the supreme court in our country in affirming and establishing their rights
holds much importance. “Tears shed for the accused are traditional
and trendy but has the law none for the victim of crime, the unknown martyrs“?
This remark by the Hon’ble Justice VK Krishna Iyer aptly describes the plight
of victims in the criminal justice system in our country. The victim is almost
a forgotten entity in the criminal system rather the irony is that the victim
sets the wheel of justice moving by giving information to the state
instrumentalities without which the entire system would collapse.

 “Victims
should come first“…

 It is of
course an indisputable fact that victims of crime have long been a forgotten
group, a group that suffered for centuries not only from society’s neglect but
also from the exploration of their rightful dias by the state. It is also true
that they had their conflicts stolen by professionals and by the criminal
justice system. However, the exceptional speed with which they were
rediscovered and their cause adopted by the politicians, let alone the
political climate that prevailed at the time of their rediscovery, is bound to
raise questions about the real interests and motives behind what has been
portrayed as a genuinely humanitarian and disinterest cause.

 A comprehensive
legal code for victim compensation is a dire necessity. The time has come for
the legislature to stop shirking its duty. Hence, a comprehensive legal code
should be enacted providing for fair treatment, assistance, and adequate
compensation to victims of crime. Only on embarking on this step can justice in
its more altruistic forms be obtained. It should be made mandatory for the
state to pay compensation to the victims of the crime of not only the private
criminal wrongs but also for the criminal acts perpetrated by its agencies.
This mandatory duty of the state gains importance from two points of view
namely as a welfare state committed to the constitutional goal of social
justice and secondly, for its failure to protect the life, liberty, and
security of its citizens.

 Therefore, I would
like to conclude with this quote-

 “Too
much money…. often resulted in further crimes which were fatal to innocent
victims who need not have been victims if justice had been put first and mercy
second.” 

–Agatha Christie

 

Judicialization of Executive decisions -A Threat to Democracy

                                                                    (Photo: Science ABC)

It is true to say that, “Judicialization of executive decisions is dangerous for democracy”. Judicialization is the growing involvement of judges in assessing the executive prerogatives and performance and the reliance on courts for addressing core public policy questions and political controversies.

 Judicialization occurs in parliamentary democracies when a high degree of party competition in legislature invites challenges from judiciary because these systems produce weak coalitions. In 1950s and 60s, the political elite passed the decision-making burden to the court because they wanted an umpire. Successive governments expanded the court jurisdiction over administrative tribunals and the court seized more powers of judicial review. In the last decade, the main driver of judicial involvement in executive decisions is pressure from civil society actors. The relationship between courts and political considerations in India’s parliamentary system is less coherent.

 When the political actor is strong (single-party majority), prepared to take on courts and has a policy agenda, SC is more constrained. This occurred during Indira Gandhi’s time. If the political actor is strong, but not prepared to strike at the courts autonomy (Nehru’s time), or if there is a weak coalition (post-1988), the judiciary has more room to manoeuvre. Today, within the space given by structural conditions, higher judiciary is trying to balance constraints imposed by institutional realities with demands for judicial action from societal actors. Judiciary’s intervention has had positive as well as negative effect. On the positive side, it has knitted alliances with political parties, citizen groups, activists and the media to keep an eye on the administration. On the negative side, the danger remains of collision between judiciary and other organs of state, which is against the principles of constitution and democracy. A bigger concern is the habit developed by higher judiciary of monitoring implementation of orders.

Judiciary interference should only be when required and should not be made as a permanent thing. It contains the principles of democracy as the three wings are different and has their own jurisdictions. Thus, it can be said that judicialization of executive decision is dangerous for democracy.

 

The frailties of the Indian Criminal Justice system.

  • – Sankalp Dubey

In the United Kingdom, a well-known textbook on the foundations of criminal law methodically develops numerous theoretical basis for explaining what should be a crime – that it should include some harm, must be of a particular degree of gravity, and so on. But then, in a single passage, it deconstructs this structure by reminding us that, at the end of the day, criminal law and crimes are whatever the state says they are. This political linkage is probably more pronounced in India: A majority government creates the laws and controls the investigative apparatus, which means it may not only define what constitutes a criminal but also selectively pursue just those offences that it is concerned about, forgetting the rest.

Across India, chaos reigns.

To what end should those offences be pursued, you could wonder. In the end, the concept of “crime” is meaningless without the associated penalty. We are all trained to fear losing our liberty when we are imprisoned. However, it is sometimes overlooked that this punishment may only be imposed upon a conviction at the conclusion of a trial. As a result, there is a synergy between the crime, the investigation, and the accountability of those found guilty, which is referred to as the criminal justice system. And everywhere you turn in India, it’s in chaos.

The heinous events in the Indian state of Uttar Pradesh are only one illustration of how awful things may become. After a confrontation with police, a prominent mobster fled and was subsequently apprehended in another state. Meanwhile, the news was saturated with tales suggesting the accused’s corrupt ties to public officials. An “encounter” occurred when his party was returning to Uttar Pradesh, and the accused was shot and killed.

There had been a crime, perhaps multiple crimes. It was determined to pursue it by the State Police. However, there was no need to wait for a trial to convict and sentence the guilty; punishment was immediately administered by the police. So much so that one ex-Supreme Court Judge said the State’s version of events made it look as though it didn’t care whether or not the encounter account was believed.

The extremities in Uttar Pradesh

If the death of Vikas Dubey indicated a readiness to punish without a trial, Uttar Pradesh has also shown a readiness to condemn without a trial. It enacted a legislation allowing the publication of enormous hoardings including the names and personal information of anyone accused of destroying property during the anti-Citizenship Act rallies. But here’s the thing: all of this happened before a court found them guilty of their crimes. Rather than a judicial ruling, the authority to condemn was derived from the ability to make claims, which is entirely executive in nature. In this way, the cops took on the roles of judge, jury, and executioner.

Of course, there are cases when the state has chosen to pursue alleged criminal activity. Many times, it turns a blind eye to acts of violence, either indefinitely or for a lengthy period of time. When her relatives discovered her on September 14 in the hamlet of Hathras, Uttar Pradesh, she had been viciously abused and left to die. The same family did what any reasonable person would do: they called the cops and took their daughter to the hospital. Despite the obvious injuries, the police did not file a report for many hours, and even then did not mention the major crime of rape. Naturally, when the police refused to file this one instance of rape, they quickly recorded at least 19 cases involving an alleged conspiracy to utilise the incident for political objectives in order to cast the State in a negative light.

Disconnect between the government and the judiciary.

These examples from Uttar Pradesh merely help to highlight that there are definite, obvious patterns. The first is the widening chasm between the government and the judiciary in questions of criminal justice; the second is the boosting of executive authority as a result of this chasm; and the third is the judiciary’s predictable copying of executive-mindedness. As a result, I suggest, the criminal justice system will be transformed into a problem-solving system.

The 2019 Crime in India numbers reinforce a trend that has been seen for decades: our police appear to be super-efficient, but our courts appear to be super-slow. Let’s stick with Uttar Pradesh for a while. Its police have a case pending rate of just over 15%, whereas its courts have a case pending rate of just over 90%. (for IPC crimes). Worryingly, they aren’t the worst data available. This implies that, as police departments continue to add cases to their dockets year after year, the courts’ capacity to conduct trials and make judgements is deteriorating.

The inherent time gap between the incident and any potential punishment is exacerbated, and the role of courts in the criminal justice system is diminished. This gap, among other things, undermines the significance of any conviction based on a trial, since individuals move on and life moves on in virtually all circumstances. It’s impossible to say how much this inclination is amplified in an era dominated by the 24-hour news cycle.

How can a system bridge the gap between an incidence and a final decision? By gradually legitimising the concept of penalties without repercussions or accountability. All that counts is that the situation is solved and that we move on.

The president obtains more authority in this system where judges have less authority. The arrest, not the conviction, is the turning point in the criminal justice system. At times, victims do not even consider proving anything in court; all that counts is arrest and indefinite imprisonment, or even an encounter if the charge is serious enough. At the same time, the government wants to legalise pre-trial detention and incarceration while simultaneously granting itself new powers to punish without conviction, including asset forfeiture.

The presumption of innocence.

When judges attempt to reclaim some of their lost ground by imitating the suddenly popular branch, the transition is complete. At the time of bail, courts are more than willing to examine the facts in great detail. Furthermore, by utilising jail as a negotiating weapon to push wrongly accused individuals to pay amends, judges become more ready to assist in reaching settlements during this stage. Because even courts no longer have the time for the procedure, courts deliberately replace facts established during cross-examination of a witness with her unproven charges that the police opted to pursue. So long as the problem is fixed and a victim is pleased, the assumption of innocence can be ignored.

There has been a soothing background tune playing steadily throughout this outbreak and the spiralling devastation it has caused. This is the systematic disintegration of any criminal justice system worth its name across India, and its gradual replacement with a problem-solving system in which initial accusations and their handling by the executive branch become most important, and values like presumption of innocence and establishing truth through trials have long vanished. The fact that certain states are in the forefront of this growth may be viewed cynically as another indicator of their success that makes many others envy.

Misuse of contempt of court

Contempt in its true sense means scandalizing, disrespecting courts or individual judges or jury and
attributing motive to certain judgment. With the intent of implementing the orders of the court of law
and preserving it from scandalizing the “CONTEMPT OF COURT ACT” was modified and adopted in the
parliament in 1971. The punishment for contempt is maximum of six months imprisonment or fine of
rupees 2000 or both. It is a restriction on one of the fundamental rights “The Right to Expression”.
Contempt is of two types-Civil contempt and Criminal contempt.


According to the section 2(b) of The Contempt of Court Act, 1971, civil contempt means willful
disobedience to any judgment, decree and direction, order, writ or other process of a court or willful
breach of an undertaking given to the court.


According to the section 2(c) of The Contempt of Court Act, 1971, criminal contempt means the
publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise)
of any matter or the doing of any other Act whatsoever which scandalize or tend to scandalize, or lower or tends to lower, the authority of any court or prejudice or interfere or tends to interfere with, the due course of any judicial proceeding or ineterface or tends to interfere with or obstructs, the administration of justice in any other manner.
Criminal contempt is considered a conduct directed against dignity of Court. That’s why criminal contempt
often highlights as the only contempt. But that’s not true according to the report submitted on the review of
the Contempt of Court Acts, 1971 by The Law Commission of India chaired by Justice B.S. Chauhan states that
there is more number of civil contempt cases (96,993) than civil contempt cases (583) in various high courts
and The Supreme Court. But despite high ratio of civil contempt the punishment ratio is very low. There is a
very fine line between contempt and criticisms and because of it criticism is understood as contempt. In its
previous judgments Supreme Court states that contempt victims should not be punished until the contempt
is intended or tends to interfere in the due course of administration of the courts. One of the major
drawback of the contempt law is that the judge is victim as well as prosecutor and the same person is
assuring justice which is against the basic theory of justice. In the recent cases we see renowned Prashant
Bhushan criticizing CJIs and found guilty in the court of law and fined for Rs 1. The court has the power to
pick up any publication and scrutinize it as contempt of court in the courts. This makes people hesitate to
present their point of views on certain judgments as they fear to be punished for contempt. This also present
judiciary in a bad light in front of the citizens.


The Courts should check civil contempt more than criminal contempt. The Courts should develop habit of
criticism on their judgment because they can also give controversial judgments. Even the Supreme Court is
supreme but not infallible. In a healthy democracy everything should be questioned. Courts should accept
their bonafide criticism as they will help them deliver better judgments in the future and criticism makes any
institution better not disrespect them.

Judicial Service Examination

Judicial Service Examination

The Indian government has three branches . Judiciary is one of them. The Judiciary is a judicial system that interpreting and applies Law. Clear Judicial service examination is the first dream of every law aspirants. Many Law aspirants graduate from the different different law school to clear Judicial Service Examination. In Law field many opportunities are there like advocacy, the litigation, the law firm, the legal officer the legal advisor but most of the law student dream to prepare and clear Judicial Service Examination and become a judge. The Judicial Services Examination ensures a safe and comfortable employment environment. Furthermore, it provides selected applicants with an opportunity to serve their country. Every year, between 50,000 and 60,000 people apply for the Judicial Services Examination, but only those are clear exam, who studied with a goal and in accordance with a philosophy, succeed. Judicial Services must be achieved.
India Judiciary exam are not Union exam means it not conducted by union government. It conducted by the State Government. Every state has its own eligibility, process ,qualifications, courses for Judiciary exam.
Mostly every state divide judiciary in 3 phase
• Preliminary Exams
• Mains Exam
• Interview round

1 Preliminary Exam – The preliminary exam is used to screen candidates for the main examination. It includes Inquiries that are objective in nature. The preliminary examination marks are not taken into account in the final selection. States have different percentages of qualifying marks. The preliminary examination requires a minimum score of 60% for general candidates and 55% for restricted candidates.
2 Mains Exam – This is a subjective sort of exam. Three to four papers form the exam. The ultimate selection is based on the candidates’ performance. The number of candidates called for viva-voce is three times the number of slots.
3 Viva-Voce/Personal Interview — This is the final stage of the selection process, during which candidates are evaluated on a variety of variables, including general interest, personality, and IQ.
This examination is conducted in English as well as in Hindi language. State has decided exam marks and pattern according to him.

Benefits to clear Judicial Services Examination:-

• In the Indian system, the position of deicide is the most prestigious.
• Candidates who are selected in the Judicial Services Examination have a safe and comfortable job.
• It also provide Allowances and Facility.

Tiers of Judiciary Exam
There are two tiers to a career in the legal system.
• Lower judicial service:– which is allocated for recent graduates through an entrance examination administered by the various State Public Service Commissions (UP, MP, Rajasthan, and Haryana, Bihar, Punjab so on) or the high courts (Delhi). A career path through this ensures on-time promotions and a solid tenure.
• Higher Judicial Services:- The chosen candidates get announce as extra District Judges, that and their promotion is quicker.
Civil decides (junior division) have Judicial Jurist (Second Class) powers, while Chief Judicial Jurists have Judicial Jurist (Second Class) powers (First Class).


Conclusion:
For those who want to serve the public in a high-status position, judicial service may be a good option. It provides a secure and safe job with a competitive wage package.

SEPARATION OF POWERS

INTRODUCTION

As said by Aristotle, “All constitutions have three elements, concerning which the good lawgiver has to regard what is expedient for each constitution. When they are well-ordered, the constitution is well-ordered, and as they differ from one another, constitutions differ. There is one element which deliberates about public affairs; secondly that concerned with the magistrates- the question being, what they should be, over what they should exercise authority, and what should be the mode of electing to them; and thirdly that which has judicial power.”[1]

Separation of power basically means distribution of the powers and authority as well as responsibilities and duties amongst the three pillars of our nation that is, the executive, the legislature and the judiciary. It deals with the function of each organ of the state and its inference on other organ. India is a quasi-federal country.

MEANING

The French thinker Montesquieu stated, early in eighteenth century, that moving power in the hands of only one organ or group of the government is tyrannical. In order to address this problem, he felt that the solution would be to place power in three separate three arms of government, namely the legislature, the executive and the judiciary. This would make it possible for each body to be autonomous of the other in such a way that there can be no encroachment or overlapping of powers and that there could be harmony that would help the smooth functioning of the government.

These words state the Doctrine of Separation of Powers as given by Montesquieu, “There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing laws, that of executing public resolutions, and of trying the causes of individuals.”

Understanding that the function of a government is to safeguard individual rights but recognizing that governments have traditionally been the principal violators of such rights, a number of measures to reduce that likelihood have been developed. One such measure is of the separation of powers.

The premise behind Separation of Powers is that if a single person or community has a considerable amount of control, they can become harmful to the general public. Separation of powers is a way to minimize the momentum of power in the hands of any group, making abuse and arbitrariness more difficult to be brought into practice. It is generally accepted that there is a tripartite structure of government authority and power:

(i) Legislature (ii) executive (iii) judiciary.

As per the theory of the separation of powers these three powers and functions of the government must always be kept separate in a free democracy, exercised by separate Government organs.

DOCTRINE OF SEPARATION OF POWERS

As explained by Wade and Philips, The Doctrine of Separation of Powers indicates 3 features to showcase the Powers of Government:

I. The same person should not form part of more than one of the three organs (i.e. Executive, Legislature and Judiciary) of the Government. For example, ministers should not sit in Parliament.

II. One organ of the Government should not control or interfere with any other organ of the Government in carrying out its functions. For example, judiciary should not be independent of executive.

III. One organ of the Government should not exercise the functions dispensed to any other organ. For example, ministers cannot be the part of law making body.

Separation of powers means delegation of powers for certain specified functions of the government. All the powers of the government have been conceived as falling within one or another of given three modules-

(1) The enactment of creation of laws

(2) The interpretation of the laws made

(3) The enforcement of those laws

Namely, legislative, judicial and executive. Government has been reckoned to be made up of tripartite structure having for their functions and such classification is known as classical division.

IMPORTANCE

As it is a very generally accepted fact that whenever a huge amount of power is given in the hand of any administering authority there are higher probabilities of corruption, maladministration and misuse of power. This doctrine aids in preventing the abuse of power.  This doctrine shields the individual from the arbitrary rule. The government is the violator and also safeguards individual liberty.

Basically, the importance can be summarized in the following points:

  • Terminating the authoritarianism, it safeguards the liberty of an individual.
  • It not only protects the liberty of the individual but also preserves the efficiency of the administration.
  • Focus on the requirement of independence of the judiciary
  • Prevent the legislature from enacting an arbitrary rule.

THE TRIPARTITE STRUCTURE

Model is divided into three branches of state. All have separate powers and responsibilities but are inter dependent on each other. Let’s know about these branches in brief.

Legislature:

It is the law making body of the country.

It is the basis for the functioning of the other two organs, the executive and the judiciary.

It is also sometimes accorded the first place among the three organs because until and unless laws are enacted, there can be no implementation and application of laws.

Executive:

The executive is the organ that implements the laws enacted by the legislature and enforces the will of the state.

It is the administrative head of the government.

Ministers including the Prime/Chief Ministers and President/Governors form part of the executive.

Judiciary:

The judiciary is that branch of the government that interprets law, settles disputes and administers justice to all citizens.

The judiciary is considered the watchdog of democracy, and also the guardian of the Constitution.

It comprises of the Supreme Court, the High Courts, District and other subordinate courts.

INDIAN CONSTITUTION AND SEPARATION OF POWERS

The doctrine of separation of powers is not accorded a constitutional status. Apart from the Directive principles laid down in Article 50 which enjoins separation of judiciary from the executive, the constitutional scheme does not embody any formalistic and dogmatic division of powers. In India we have parliamentary form of government where executive is very important part of legislature. We don’t follow this doctrine with rigidity but then the essential functions have been sufficiently differentiated and it is an assumption that one organ of the state will not perform the functions of another organ of the state. Every organ of the state has to perform the essential functions, i.e. the legislature must legislate, the executive must execute and the judiciary must adjudicate.

CONCLUSION

There is no clear difference between executive and legislative forms of government: the legislation that is enacted must always be enforced and executed, and a great deal of executive intervention involves new legislation. Although, judiciary is an independent body.

As such, division can be said to be an artificial division. This is borne out by the fact that there is presently no constitutional system with a comprehensive separation of powers where there is a distribution of the three functions between three independent bodies without overlapping or cross-coordination.

[1]Aristotle- Politics- BOOK 4- Part XIV

The Judicial System of the East India Company: A Summary

India was ruled by Muslims from 1206 to 1857. Their rule, however, was almost on the verge of end since Aurangzeb died in 1707. The British Empire in India was laid down by a company, the East India Company. The ultimate purpose of the company was to grow the British interests in the overseas countries. The representatives of the Company arrived first in the country in 1604.

By 1661, the Company had developed factories in Surat, Madras and Bombay in India. The Company started delivering justice arbitrarily which could be called as “traders’ justice” under the Charters. The Company’s officials, however, were all traders and had no legal background. Before 1726, judiciary developed in the three presidencies without any uniformity of laws. Then came in the Charter of 1726 which focused on this specific issue in all the three places. Importantly, this Charter derived authority of adjudication from just the Kings and not the Company officials.

Municipal institutions were established in the presidency towns which strictly followed the laws of England. Especially since the charter allowed disputes between natives to be heard by these institutions only on request by the Indians. This act of the Company gained the trust as it showed respect the sovereignty of local rulers. The main role of the company until 1757 was the facilitation of trade and commerce.

By 1717, the Company had secured the right to control and collect revenue of villages near Calcutta. After the battle of Plassey, the Company had installed Mir Jafar as the Nawab of Calcutta. He surrendered the Zamindari of the twenty-four Parganas to the Company which is around eight hundred square miles. It was called the “moffussil”. The Company then provided the adalat system for the administration in the moffussil.

In 1765, Shah Alam granted the Diwani also called revenue administration the three cities Bengal, Bihar and Orissa to the Company for an amount of twenty-six lacs of rupees per annum. Then came in the 1772 plan which provided for a Moffussil Diwani Adalat in each district. It comprised of a Collector as judge to decide civil cases. The court was to apply the Quran for the Muslims and for Hindus it applied the Shastras. The Regulations of 1793 later modified the same and referred them as “Hindu Law” and “Mohammedan Laws” instead of the Quran and the Shastra respectively. Similarly, the Collector took the advice of a Qazi for Muslim cases and in the case of Hindus, the advice of a Pundit.

The criminal justice system in 1790 was taken from the Muslim Qazis, Muftis and Maulvis and handed over to the Company’s English officials. The Muslim Law officers advise the courts. Subsequently, the Regulation of 1773 authorized the Calcutta Supreme Court to enroll English, Irish and Scottish advocates in law.

In 1793 Cornwallis created a regular profession by authorizing the Sadar Diwani Adalat to enroll pleaders or lawyers for all Company’s courts. It could be both Muslims and Hinds. The War of Mutiny also called the war of independence, 1857 changed the fate of India as the Bill of 1858 handed the entire possession of government of the Company of all the territories to the Crown. In 1833, the Privy Council was established. High Courts were established in 1861 in the presidency towns Calcutta, Madras and Bombay. Early Law reporting as a private enterprise was introduced for the evolution of the doctrine of precedent. Authentic law reporting began alongside the Indian Law Reports Act, 1875. Thus, Early Law reporting and Authentic Law reporting served as the two indispensable necessities for implementation of the doctrine of precedent. It also proved successful in drawing the hierarchy of courts and the emergence of authentic law reporting was positively executed in 1875.

In 1937, a Federal Court for India was established.

The Supreme Court of India was established on the same set of principles. An appeal from the federal court laid to the privy council which served as the ultimate court of request. But the system could not prevail for much time with the independence of India. The independence of India also made inescapable changes to the structure of the judiciary. The replacement of the Privy Council with the Supreme Court to serve as the ultimate court in India being the hugest of all changes. The Indian Legal System now, consists of various level of courts and one Supreme Court. The Supreme Court serving as the ultimate court of request.