Showing posts with label Acts. Show all posts
Showing posts with label Acts. Show all posts

 


INTRODUCTION:

A Suo Moto cognizance is a Latin term which is defined as measures taken by a government agency, court, or other authority on their own discernment. When the court gets the information about the violation of the rights of humans or breach of duty through media or by a third party, then Suo Moto Cognizance is taken by the Court. The reason behind Suo Moto cognizance by the court is to broaden the reach of justice to that person who is not able to access the court for some reason.

The term PIL was introduced by Justice P.N. Bhagwati. Article 32 and Article 226 of the Indian constitution impute down the provisions for filing Public Interest Litigation (PIL) in Supreme Court and High Court respectively. In this way, power is given to the courts to initiate legal action on their cognizance of matters when it comes to the violation of rights.

Under Article 131 of the Indian constitution, Suo Moto Cognizance of the Supreme Court is given. Article 131 of the Indian constitution endows the Supreme Court with Original Jurisdiction over any discourse arising between the states or between center and state. This article gives power to the Supreme Court to initiate cases directly in the highest court of the country without going through the lower court or reviewing the judgment of lower courts. Suo Moto cognizance by Indian courts is a reflection of Judicial Activism. To initiate the Suo Moto cognizance, the prior consent of the Attorney General is not required.

WHAT IS JUDICIAL ACTIVISM?

There is an active role of the Judiciary in upholding the constitutional values and ethics under the constitution. Judicial Activism is a term which states that the decree of a court is based on political and personal prudence of the judges based on the issues before the court. It decided on the court ruling based on personal or political factors rather than on current or existing legislation. In the words of Black’s Law Dictionary, Judicial Activism is the conviction of judicial pledges whereby judges give their personal views about public policy based on other factors to escort their resolution.

 The concept of Judicial Activism was yielded through the procedure of Judicial Review which can be followed from the unwritten constitution of Britain during the Period of Stuart (1603-1688). For the first time in the year 1610, the power of Judicial review was recognized through the activism of Justice Coke. Only the Supreme Court and the High Court have the power of Judicial Activism, to declare the regulations unconstitutional and null and void if they breach or any clause is incompetent.

 A new meaning is given by the court to the provisions to action the switching social or economic conditions or broadening the rights of an Individual is an activist court.

~ SP Sathe

There can be pros and cons of Judicial Activism:

·         The decision of judges becomes a standard for deciding other cases. (Cons)

·         Judicial Activism gives power to the judges to use their own prudence in cases where laws failed. (Pros)

·         Any laws can be overridden by the judges that clearly indicate the violation of the constitution. (cons) 

·         Judicial Activism gives the speedy resolution where the legislature stuck in the issue of majority. (Pros)

There are some of the landmark judgments related to Judicial Activism:

1. In Hussainara Khatoon V State of Bihar, a writ petition is filed under article 21 of the Indian Constitution. It was accepted by the apex court and it was held that the Right to a speedy trial is a Fundamental Right.

 2. In Sunil Batra V Delhi Administration, Epistolary Jurisdiction was exercised by the court and it was held that the technicalities cannot stop the court from securing the civil liberties of the individuals.

JUDICIAL ACTIVISM OR JUDICIAL ADVENTURISM:

There is a very small gap between Judicial Activism and Judicial Adventurism. Judicial Activism is considered as a positive sign in highlighting and curing the executive but overreach into the executive domain is contemplated as an intrusion into the proper working of democracy.

The former Chief Justice of India Justice J S Verma said, “the judiciary should only compel performance of duty by the delegated authority in case of its failure, while to take function allocated to another branch by Judiciary is unsuitable. Judicial activism is pertinent when it is in the realm of licit judicial review. It should neither be judicial ‘aphorisms nor judicial tyranny.”

There are many cases of Judicial Adventurism in our country which include the bolting of unaccredited commercial operations in Delhi. [[i]] The Judgment given by the Supreme Court in which the state legislative assembly was deliquesced by the presidential proclamation is subject to the judicial proclamation. [[ii]] Intervention in the educational policies of the government such as the TMA Pai Foundation case. [[iii]]

In this pandemic, an order was given by Supreme Court to the private laboratories not to charge the COVID-19 test that has sparked a parley whether it is a case of Judicial Overreach. [[iv]] Under the Essential Commodity Act, powers are given to the government to regulate the prices of testing done by private labs.

SUO MOTO INTERVENTION:

During this Pandemic, there are increments within the cases of PIL filed by the people within the Supreme Court and various high courts under their jurisdiction. Recently in many instances, Suo Moto Cognizance is taken by the Indian Judiciary. A number of which are as follows:

·         During COVID-19, Suo Moto cognizance was taken by the Supreme Court after hearing a letter-petition written by Member of Parliament Smt. Mahua Moitra about migrant workers and their conditions.[[v]]

·         Suo Moto was taken by the Apex court for the protection of children's homes across the country. [[vi]]

·          The Apex Court has taken Suo Moto Cognizance of overcrowding of the prisons across the country. [[vii]]

The High Courts of the Country has also taken Suo Moto Cognizance in a number of instances for providing justice to the general public at large.

·          Recently, Suo Moto Cognizance is taken by the Gujarat tribunal on the worsening of COVID-19 situations like shortage of beds, oxygen cylinders, medical facilities.

·         The supreme court of Andhra Pradesh has taken Suo Moto Cognizance on the Vizag Gas Leak incident. National Green Tribunal, New Delhi, and National Human Rights Commission, Indian capital have also taken separate Suo Moto cognizance of this painful incident and have formed committees to enquire into the matter and file their report.[[viii]]

CONCLUSION:

There is a limited distinction between activism and overreach. Sometimes, in the operation of Judicial Activism, we see a lot of intervention of Judiciary and give justice on the basis of their personal belief. The primary function of the Judiciary is to interpret the laws but rather than interpreting them, they start doing the work of legislature i.e. making the laws, issuing guidelines and direction. There arises a conflict between the legislature and judiciary because of Judicial Overreach due to which the legislature becomes inactive or less competent. Judicial Overreach kills the separation of powers on which the democracy is based.

The difference between Judicial Activism and Judicial Adventurism is important for the smooth functioning of a constitutional democracy with the separation of powers as its main attribute and supremacy of the constitution. The judiciary in many instances faces censure for under-reacting and this needs to be stabilized so that the people can get justice without any difficulty and also can increase their faith in three pillars.


[[i]] M.C. Mehta Versus Union of India [Writ Petition (Civil) No.4677 of 1985]

[[ii]] Rameshwar Prasad & Ors. Versus Union of India & Ors. [Writ Petition (Civil) No.257 of 2005]

[[iii]] T.M.A. Pai Foundation Versus State of Karnataka [Writ Petition (Civil) No.317 of 1993]

[[iv]]  Shashank Deo Sudhi versus Union of India & Ors. [Writ Petition (Civil) Diary No.10816 of 2020]

[[v]]  Mahua Moitra Versus Union of India [Writ Petition (Civil) No.470 of 2020]

[[vi]] IN   RE   CONTAGION   OF   COVID   19   VIRUS   IN   CHILDREN PROTECTION HOMES [Suo Moto Writ Petition (Civil) No.4 of 2020]

[[vii]] IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS [Suo Moto Writ Petition (Civil) No.1 of 2020]

[[viii]] IN RE. POISONOUS GAS LEAKAGE IN VISAKHAPATNAM [Suo Motu WP (PIL) No.112 of 2020

REFERNCES:

https://www.drishtiias.com/daily-updates/daily-news-analysis/contempt-of-court-3

https://www.drishtiias.com/daily-updates/daily-news-editorials/when-judges-legislate

https://legiteye.com/suo-moto-judicial-activism-or-judicial-adventurism-by-ashutosh-k-sharma-and-neha-malik/

https://www.thehindu.com/news/national/other-states/gujarat-high-court-takes-suo-motu-cognisance-of-covid-19-upsurge-in-state/article34297158.ece

IMAGE SOURCE

AUTHORED BY: PALAK NIGAM

 Introduction 

The legal system of India is based on an extremely important concept “innocent until proven guilty”. This concept simply states that until and unless an accused is proven guilty for committing an offence and is only under an ongoing trial, the accused cannot be termed as a criminal. 

Henceforth, due to this concept, the general citizens and the arrested individuals have been granted certain rights that cannot be seized under any circumstances. In India, the Indian Constitution and the Criminal Procedure Code provide certain rights to the arrested individuals. 

Rights of an Arrested Person guaranteed under The Constitution of India, 1949 and The Code of Criminal Procedure, 1973

  1. Right to know the grounds of arrest

Section 50(1) of the Code of Criminal Procedure, 1973 (Crpc) deals with the right to know the grounds of arrest. 

If a subordinate officer makes an arrest under Section 55 of the Code of Criminal Procedure, 1973 (Crpc) then before arresting that officer must show the accused a written Order. The Order must have in writing that the senior officer of the subordinate officer has designated him to do so. If the subordinate officer does not show such written Order to the accused then the arrest is termed “illegal”. 

Under Section 75 of the Code of Criminal Procedure, 1973 (Crpc), if an arrest is made after the issue of a warrant then also it is a mandate for the officer arresting to inform the accused of his grounds of arrest. 

  1. Right to silence and right against self-incrimination. 

It is the duty of the police officers to ask questions to the arrested accused. However, it is at the discretion of the accused whether to answer or not answer such questions. The arrested accused has a right to remain silent and not answer the questions asked by the police authorities. The silence of the accused cannot be used against him either by the prosecution or by the police official. As per the right against self-incrimination mentioned under Article 20(3) of the Constitution of India, 1949, it cannot be stated that the accused is silent because he is guilty. 

  1. Right to be released on bail 

If an individual is arrested for a bailable offence then it is the duty of the police to inform him about his right to be released on bail. Here, Section 50(2) of the Code of Criminal Procedure, 1973 (Crpc) deals with the information regarding the right to be released on bail. 

  1. Right to be taken before a Magistrate without delay

Under Section 56 and Section 76 of the Code of Criminal Procedure, 1973 (Crpc), if an arrest is made either with a warrant or without a warrant, it is the duty of the police officer to produce the arrested person in front of the judicial officer without any unnecessary delay. 

  1. Right not to be detained for more than 24 hours

According to Section 57 and Section 70 of the Code of Criminal Procedure, 1973 (Crpc), no police officer has the authority to detain an arrested individual for more than 24hours without judicial scrutiny. It is the right of an arrested accused to be produced before the Magistrate within 24 hours of arrest. 

  1. Right to free legal aid

Under Section 41D and Section 303 of the Code of Criminal Procedure, 1973, free legal aid is provided to an accused individual who is incapable of paying legal fees. Such free legal aid is provided by the Legal Services Authority. But a condition imposed is that this legal aid can only be given before the initiation of a trial. 

  1. Right to hire a legal practitioner 

Article 22(1) of the Constitution of India, 1949 provides the arrested accused a right to hire a legal practitioner of choice.

  1. Right to a fair and speedy trial 

Article 21 of the Constitution of India, 1949 guarantees the right to a fair and speedy trial. This provision was created to prevent the secret release of a Conviction Order of any accused. Here, a speedy trial refers to an offence whose maximum punishment is 2 years. In such offences, police have a duty to complete the investigation within 6 months of the offence.

  1. Right to be examined medically 

If an arrested individual makes a request to be examined medically then under Section 54 of the Code of Criminal Procedure, 1973 he has the right to be examined medically. 

Conclusion

Hence, the phrase “Innocent until proven guilty”, makes it very evident that in India the burden of proof to prove any allegation lies upon the prosecution. Until and unless, an accused is proved guilty, he or she cannot be considered a criminal. An accused person is an entity who has been alleged to have committed an offense. Our Indian Constitution and CrPC provide certain rights to an arrested person that cannot be taken away. 

This article discusses the most important rights provided to the arrested persons and the duties of a police officer that has to be kept in mind while making an arrest.

References 






The article is written by Sneha Mahawar, a  law student at Ramaiah Institute of Legal Studies. This article discusses the rights of an individual when he is arrested, the procedure of making an arrest, and the duties of a police officer in an arrest. 

 

Introduction to Right to Information Act, 2005

Right to Information Act, 2005 (RTI) is considered highly important legislation of independent India as it introduced the concept of ‘Good Governance’. Good governance is when a country’s public institution works and brings in improvements as per the needs of the society.  Not only India but various other countries of the world consider the concept of ‘Good Governance’ as an important aspect. 

Right to Information Act, 2005 (RTI) is legislation that applies only to public authorities. According to the Right to Information Act, 2005 (RTI) pubic authorities are those bodies that are enacted by the Parliament or the State Legislature under the powers given by the Constitution of India. Example- Non-Governmental Organisations. Every citizen has the right to approach these public authorities and demand information under the Right to Information Act, 2005 (RTI). 

Right to Information Act, 2005 (RTI) also talks about Public Information Officer (PIO). These officers have the authority and power to provide individuals with information on requisition. 

RTI has two bodies namely, Central Information Commission and State Level Commission. 

Recent news relating to RTI Act

  • Last year, the most important news of the Right to Information Act, 2005 (RTI) was that whether the PM Cares fund is a public authority or not. 

  • If yes, then can people learn about all the transactions relating to it. 

  • As per the recordings, the PM Cares fund almost collected a sum of Rs. 3,000 crore but this information was not properly disclosed on its official website. 

  • Then it was clearly stated that the PM Cares fund is not a public authority under Section 2(h) of the Right to Information Act, 2005 (RTI). 

  • Later, a Public Interest Litigation (PIL) was also filed in this matter. 

  • It was held that this fund is not financed by the government but by private individuals such as trustees. 

A common problem in filing RTI

  • The major problem in filing RTI is that the institution is a public authority or not. 

  • So, here it is, that in certain circumstances and conditions RTI can be filed against a private body. 

  • For instance, if an RTI has to be filed for obtaining information from a private school, then the RTI application can be given to the authority under which that school is registered and information can be obtained. 

Amendment 2019

  • Right to Information Act, 2005 (RTI) was amended in 2019 and the centre was given more powers that the centre can set the salaries and service conditions of information commissioners of state and central level. 

  • Moreover, Section 13 and Section 16 was also amended. These amendments were highly opposed by the opposition parties. 

  • Then Right to Information Act, 2005 (RTI), removed the term of service of all the information officers and left it at the discretion of the central government. 

  • RTI can be filed on its web portal where the request can be submitted to ministries or departments of the government of India along with all the details and fees. 

  • The fee to file RTI is not charged from the people belonging to Below Poverty Line (BPL).

  •  As soon as the RTI application is filed a registration number will be received by the person who files for it. 

Shocking fact: After the Right to Information Act, 2005 (RTI) came into existence nearly 65 RTI activists were killed, and 400 other activists were harassed. 

Case Law: CPIO vs. Subhash Chandra Agarwal

  • In this case, Subhash Chandra Agarwal filed an RTI application to CPIO demanding all the details relating to the Chief Justice of India(CJI)

  • He filed another RTI application requesting information regarding the appointment of the three Supreme Court judges. The judges on whose appointment the information was requested was for Justice A.K. Ganguly, Justice H.L. Dutta, and Justice R.M. Lodha. 

  • Moreover, a third RTI application was also filed requesting information relating to the assets of the Chief Justice of India and the States. 

  • The issue was that whether or not the office of the Chief Justice of India (CJI) falls within the ambit or domain of public authority?

  • Held, CPIO has the authority to disclose the information regarding the personal assets and other detail of judges as the office of CJI falls within the ambit of the public authority. 

The procedure of filing an RTI

  • The first step is to open the RTI online web portal. 

  • There a request has to be submitted to Ministries or Department of Government of India. 

  • Thereafter, all the required details appearing on the page has to be given. 

  • Along with filling in the details, a fee of filing an RTI also has to be paid. 

  • An appeal can also be filed on the web portal of RTI.

  • The fee to file RTI is not charged from the people belonging to Below Poverty Line (BPL). 

  • After the RTI application is duly filed, the person filing such RTI shall receive a registration number. 

Conclusion 

Hence, the Right to Information Act 2005 mandates timely response to citizen requests for government information. The basic object of the Right to Information Act is to empower the citizens, promote transparency and accountability in the working of the Government.  RTI Act applies to public authorities which goes without saying but it indirectly also covers the private institutions. 

References




The article is written by Sneha Mahawar, a  law student at Ramaiah Institute of Legal Studies. The article discusses the 2019 amendment of the Right to Information Act, 2005 along with other important highlights.