Showing posts with label Judiciary. Show all posts
Showing posts with label Judiciary. Show all posts

Introduction

What started things out - the egg or the chicken! The appropriate response is fairly elusive. It's a greater amount of tension for researchers and not for any regular individual; even its answers are not to be troubled. What truly stresses ought to be somewhat in our "Constitution". What started things out corruption or the populace? Can anyone discover what's the genuine disposition behind it? It's hard to infer on any of them, supposing that its corruption'; without populace corruption can't endure. In the event that the populace started things out, at that point it is evident that corruption will have its root together in our everyday life.
                                             

"Justice Deferred Is Justice Denied Justice Rushed Is Justice Covered" 

Economist Ian Senior defined corruption: As an action to (a) secretly provide (b) a good or service to a third party (c) so that he or she can influence certain actions which (d) benefit the corrupt, a third party, or both (e) in which the corrupt agent has authority.[1] At the point when we see our history; there is a fathomable impression of corruption despite the fact that the populace was bound to constrained numbers.

Do you truly trust in our Justice framework? In the event that someone asks me my answer will be misdirecting. It rather relies upon the circumstance what the issue is, yet it is seen that individuals trust that their turn will get Justice for entire life and what they get toward the finish of everything; pay expenses to the promoters, invest their valuable energy in going to the Courts; accepting that sometime their case will place in some Court and Justice will be conveyed to them. 

However, I don't comprehend why individuals neglect to comprehend, it is difficult to get Justice today. At the point when we consider India to be entire; it's having a populace of in excess of 100 Crore and as indicated by Prof. Malthus if the populace is developing at a quicker rate than the pace of increment in nourishment, at that point it tends to be said there is a major issue going to be looked by the nation. At the present time, the state of India is additionally the equivalent on the grounds that the populace is developing in the Geometric Movement Proportion yet the creation of nourishment is in the Math Movement Apportion just along these lines, the issue is actually quite genuine and India needs to plan something for disposing of this issue. What do you anticipate from the Court - in one day what a number of decisions are passed by any Court. The outcomes are such a great amount of keep to calculates that you rely on your fingers. After globalization, however, we state that economy has fairly been steady, yet shouldn't something be said about our Justice framework which is step by step jumping on its most noticeably terrible stage.[2]

At the point when we state that our Justice framework is gotten from the English and furthermore some part has been embraced from America, at that point for what reason is that have pushed forward, and we are as yet ailing in our removal, when we have acknowledged their way of life somewhat, their workplaces, and every one of those things which are generally not acknowledged in our everyday life, at that point why we overlook the workplaces of their Courts moreover. We should attempt to take help and overhaul ourselves; update our working techniques, with the goal that we can evade delays in any legal procedures. 

The most disturbing element is "Corruption". At each level there is Corruption. Do we truly need to toss ourselves on it, rather than straightforwardly accusing it? The thinking about each individual is that their work to be done quickly; and why not? At the point when individuals pay; they acknowledge that their work ought to be done on their time. Yet at the same time, they reward moreover, not to complete their work much quicker, yet to satisfy the contrary party, presently for what reason is this fundamental; it's hard to see each Indian mindset. It isn't so much that the individual who has been able to accomplish his particular work; won't do it, yet when he will do it; no one knows and this relies on his state of mind to do. Along these lines, just to make his disposition all the time great individuals influence them yet essentially it's against the acceptable ethics i.e., Contra bonos mores. So fundamentally what is happening in the general public is one individual making the entire society awful, much the same as 'one awful fish makes the lake filthy'.

In a recent case of DELHI HIGH COURT named Satya Pal Gupta vs Cbi, amended so as to require the accused in a corruption case, to give in writing, a list of the persons ... Prevention of Corruption Act, for speedier disposal of corruption cases cannot be allowed to be defeated by opening aback.[3] 

At the point when we experience the different strides of working of Legal executive; what is written in the book is by all accounts simpler than to go basically in Courts and to finish work. For what reason is this sort of contrast; for what reason wouldn't we be able to have our work done quick? The explanation behind all the above things is basic, India is in the 21st Century and still we don't have actualized family arranging however there are numerous advertisements. The government's attempting to instruct individuals. however, it won't work out until any solid revision is enacted and forced on individuals to tail it. In that capacity, each law is the order of Sovereign, yet individuals break it, they are obviously rebuffed? This number can't stop nor can be diminished; except if some law ought to be made which has its own uniqueness, and somewhat, it must be 'despot" by its inclination, with the goal that no one has the guts to delight it.

LEGAL AND PRACTICAL MEASURES TO COMBAT CORRUPTION:-

1- LAWS AND PROVISIONS TO TACKLE CORRUPTION
A- The prevention of Corruption Act,1988
B-. Freezing, Seizure, and Confiscation of Properties - The Criminal Law (Amendment) Ordinance,1944 (Article 31 of UNCAC).
C-. Criminal Procedure Code 1973 together with Mutual Legal Assistance Treaties (MLAT) in

Criminal Matters and Extradition Treaties.

D-. The Prevention of Money Laundering Act 2002 (Article 23 of the UNCAC).
E-. The Foreign Exchange Management Act of 1999.
F-. The Right to Information Act of 2005.
G-. India and the United Nations Convention against Corruption 2003 (UNCAC).

2-. INVESTIGATING AGENCY AND ADJUDICATION

A- INVESTIGATING AGENCY 
1- Anti-Corruption Bureau of States
2- Ombudsman, known as ‘Lokayuktas’
3- Central Bureau of Investigation (CBI)
4- The Directorate of Enforcement, India

B-. ADJUDICATION

1-. Trial by Special Judges Only
2-. Special Powers of Special Judges
(i).Power to Grant Pardon to an Approver
(ii) Freezing of Ill-gotten Properties during trial

C-. MECHANISM FOR SECURING

INFORMATION OF CORRUPTION 

1-. Complaints received from the Public
2-. Information developed through Sources
3-. Cases referred by the Central Vigilance Commission (CVC) and the Chief Vigilance Officers (CVOs) of other Government Departments
4-. Use of Telephonic/Electronic Surveillance[4]

REFRENCES:


1- www.legallyindia.com
2-www.legalservices.com
3-September15,[2010] acm
4-unafei.or.jp

INTRODUCTION: -

Right to wholesome environment is a fundamental right under Article 21 of the Constitution but most of the countries are developing and there is need of industrialization for it, but then it cost us the environment. So to solve the problem, the concept of sustainable development is introduced by various countries and hence adopted by the global leaders.[i] 

ORGIN OF THE DOCTRINE: -

The term has originated in the early 1970s, used at the time of Cocoyac Declaration, on Environment and Development. Since then it has become the trademark of international organizations, dedicated to environmental benign or beneficial development.[ii]

For the first time, the doctrine of “Sustainable Development” was discussed in the Stockholm Declaration of 1972. Thereafter, in 1987, the World Commission on Environment and Development submitted its report, which is also known as Bruntland Commission Report wherein an effort was made to link economic development and environment protection. In 1992, Rio Declaration on Environment and Development codified the principle of Sustainable Development.[iii]

MEANING OF THE DOCTRINE: -

The Supreme Court of India has made immense contribution to environmental jurisprudence of our country. It has entertained quite a lot of genuine public interest litigation. In the Bruntland Commission Report, the sustainable development was defined as – “Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.[iv]

VARIOUS PRINCIPLES OF SUSTAINABLE DEVELOPMENT: -

1. Inter – Generational Equity – It says that every generation has the Right to use natural Resources and take the benefit of the same. The present generation should not abuse the non – Renewable Resources as to deprive the future generation.
2. The Precautionary Principle – The government must identify, prevent and find solution of environmental degradation.
3. Polluter pays principle - Object of this principle was to make the polluter liable not only for the compensation to the victims but also for the cost of restoring of environmental degradation.[v]

ROLE OF JUDICAIRY: -

The Supreme Court of India has made immense contribution to environmental jurisprudence of our country. It has entertained quite a lot of genuine public interest litigations, under Article 32[vi] and 226[vii] of the Constitution. The judiciary has widened the scope of Article 21 which also includes Right to Healthy Environment under Right to life, and therefore judiciary has the onus to deal with it in high degree of caution, only then the pollution free environment takes place. Environmental jurisprudence is emerging through the Judiciary.[viii] 

TANNERIES AND DISCHARGE OF EFFLUENTS:-

The first case of application of principle of sustainable development was in the case of Vellore Citizen Welfare Forum v. Union of India, (T.N. Tanneries case) [ix]here, dispute arose over some tanneries in the state of Tamil Nadu. These tanneries discharge the effluents in the river Palar, which was the main source of drinking water. The Hon'ble Supreme Court held that- the polluter shall be liable to pay the individual’s sufferers as well as restoring the damage.[x] 

MINING IN RESERVED FORESTS:-

In the landmark case of Tarun Bhagat Singh v. Union of India,[xi] a petition was filed against the Rajasthan government, as they allowed mining work in the forest area and fail to protect the environment. The Apex court directed to stop the mining work.[xii]

SHIFTING IN THE STONE CRUSHERS:-

It is proved in the case M.C. Mehta v. Union of India[xiii], of that the Courts gives equal importance to development and ecology, as in this case, the stone crushing activity in Delhi was not stopped rather a new place in a village of Haryana is allotted for the mechanical stone crushing activity rather stopping.
In case of Narmada Bachao Andolan v. Union of India[xiv] observed that “Sustainable Development means what type or extent of development can take place, which can be sustained by nature or ecology with or without mitigation”.

ABSOLUTE LIABILITY:-

In the case of MC Mehta v Union of India (Oleum gas leak),[xv] a writ was filed under Article 32 on the event of leakage of Oleum gas from one of the units Shri Ram Foods and Fertilizers Industries. The Apex court established the rule of Absolute Liability and held that if any damage is caused due to hazardous or dangerous activity than the sufferer is liable to be compensated. Further, the Court also observed that the claim for compensation under Article 21 is sustainable. In respect to Article 32 the Court observed that the ambit of Article 32 is extremely broad and it allows the Courts to force new remedies and to formulae new strategies to enforce fundamental right.[xvi] 

PROTECTION OF FORESTS AND FELLING OF TREES:-

In the case of T.N Goadavarman Thirumulpad v. Union of India,[xvii], the Apex Court issued the interim directions that all the ongoing activities within any forest in any state throughout the country, without the permission of the central government must be stopped forthwith.

PUBLIC PARKS AND OPEN SPACES FOR RECREATION:-

In the case of C. Uma Devi v. Govt. of Andhra Pradesh,[xviii] the municipal corporation has converted the park into the garbage dumping yard. The court condemn the act of the corporation and directed to restore the glory of the park and directed the State pollution control board to monitor maintenance of park.

CONCLUSION: -

The courts have endeavoured to give a decent perspective on needs while choosing ecological issues. The environment and the development are two of a kind and anybody of these can't be scarified for the other. On opposite, both are similarly basic for our better future. In this circumstance, obligation lies on the Supreme Court and the High Courts to manage these cases with alert of serious extent, at exactly that point we will accomplish our objective of pollution free developed country for our next generation. 

REFERENCES

[i] Pragya Ohri HAS Advocates- Article- India: Need For Sustainable Development.
[ii] Michael Redclift, Sustainable Development – Exploring the Contradictions, 32 (1987).
[iii] 'Our Common Future', United Nations General Assembly,1987.
[iv] Satish C. Shastri, Environmental Law (2018), EBC, Lucknow.
[v] Law relating to Environmental pollution and protection by Dr. N.Maheshwara Swamy
[vi] Art. 32, The Constitution of India, 1950.
[vii] Art. 226, The Constitution of India, 1950.
[viii] Paras Diwan - Environment Administration Law and judicial attitude.
[ix] Vellore Citizens Welfare Forum vs. Union of India AIR 1996 SC 2715.
[x] Environmental Law by H.N.Tiwari.
[xi] Tarun Bhagat Singh vs. Union of India,
[xii] Environmental Law by Dr.Paramjit Jaswal and Dr. Nistha Jaswal.
[xiii] M.C. Mehta v. Union of India, (1992) 3 SCC 256.
[xiv] Narmada Bachao Andolan vs. Union of India AIR 2000 SC 3751.
[xv] MC Mehta v Union of India,
[xvi] www.moef.gov.in/sites/revised
[xvii] T.N Goadavarman Thirumulpad v. Union of India, (1997) 2 SCC 267.
[xviii] C. Uma Devi v. Govt. of Andhra Pradesh, AIR 2001 AP 460. 

 INTRODUCTION

Tribunal is a quasi-judicial institution that is set up to deal with problems such as resolving administrative or tax-related disputes. It performs a number of functions like adjudicating disputes, determining rights between contesting parties, making an administrative decision, reviewing an existing administrative decision and so forth. 

The term ‘Tribunal’ is derived from the word ‘Tribunes’, which means ‘Magistrates of the Classical Roman Republic’.  Tribunal is referred to as the office of the ‘Tribunes’ i.e., a Roman official under the monarchy and the republic with the function of protecting the citizen from arbitrary action by the aristocrat magistrates. A Tribunal, generally, is any person or institution having an authority to judge, adjudicate on, or to determine claims or disputes – whether or not it is called a tribunal in its title

 Need of Tribunal

  • To overcome the situation that arose due to the pendency of cases in various Courts, domestic tribunals and other Tribunals have been established under different Statutes, hereinafter referred to as the Tribunals.
  • The Tribunals were set up to reduce the workload of courts, to expedite decisions and to provide a forum which would be manned by lawyers and experts in the areas falling under the jurisdiction of the Tribunal.
  • The tribunals perform an important and specialised role in justice mechanism. They take a load off the already overburdened courts. They hear disputes related to the environment, armed forces, tax and administrative issues. 

Constitutional Provisions 

Tribunals were not part of the original constitution, it was incorporated in the Indian Constitution by 42nd Amendment Act, 1976.
  • Article 323-A deals with Administrative Tribunals.
  • Article 323-B deals with tribunals for other matters. 
  • Under Article 323 B, the Parliament and the state legislatures are authorised to provide for the establishment of tribunals for the adjudication of disputes relating to the following matters: 
  1. Taxation
  2. Foreign exchange, import and export
  3. Industrial and labour 
  4. Land reforms 
  5. Ceiling on urban property 
  6. Elections to Parliament and state legislatures
  7. Food stuff 
  8. Rent and tenancy rights 

Articles 323 A and 323 B differ in the following three aspects:

  • While Article 323 A contemplates the establishment of tribunals for public service matters only, Article 323 B contemplates the establishment of tribunals for certain other matters (mentioned above).
  • While tribunals under Article 323 A can be established only by Parliament, tribunals under Article 323 B can be established both by Parliament and state legislatures with respect to matters falling within their legislative competence. 
  • Under Article 323 A, only one tribunal for the Centre and one for each state or two or more states may be established. There is no question of the hierarchy of tribunals, whereas under Article 323 B a hierarchy of tribunals may be created. 
Article 262: The Indian Constitution provides a role for the Central government in adjudicating conflicts surrounding inter-state rivers that arise among the state/regional governments. 
n Tribunals in India

Administrative Tribunals

Administrative Tribunals was set-up by an act of Parliament, Administrative Tribunals Act, 1985. It owes its origin to Article 323 A of the Constitution. It adjudicates disputes and complaints with respect to recruitment and conditions of service of persons appointed to the public service and posts in connection with the affairs of the Union and the States. 
The Administrative Tribunals Act, 1985 provides for three types of tribunals: 
  • The Central Government establishes an administrative tribunal called the Central Administrative Tribunal (CAT).
  • The Central Government may, upon receipt of a request in this behalf from any State Government, establish an administrative tribunal for such State employees.
  • Two or more States might ask for a joint tribunal, which is called the Joint Administrative Tribunal (JAT), which exercises powers of the administrative tribunals for such States. 
  • There are tribunals for settling various administrative and tax-related disputes, including Central Administrative Tribunal (CAT), Income Tax Appellate Tribunal (ITAT), Customs, Excise and Service Tax Appellate Tribunal (CESTAT), National Green Tribunal (NGT), Competition Appellate Tribunal (COMPAT) and Securities Appellate Tribunal (SAT), among others. 

Central Administrative Tribunal

It has jurisdiction to deal with service matters pertaining to the Central Government employees or of any Union Territory, or local or other government under the control of the Government of India, or of a corporation owned or controlled by the Central Government. The CAT was set-up on 1 November 1985. It has 17 regular benches, 15 of which operate at the principal seats of High Courts and the remaining two at Jaipur and Lucknow. These Benches also hold circuit sittings at other seats of High Courts. The tribunal consists of a Chairman, Vice-Chairman and Members.The Members are drawn, both from judicial as well as administrative streams so as to give the Tribunal the benefit of expertise both in legal and administrative spheres. The appeals against the orders of an Administrative Tribunal shall lie before the Division Bench of the concerned High Court.

State Administrative Tribunal

  • Article 323 B empowers the state legislatures to set up tribunals for various matters like levy, assessment, collection and enforcement of any of the tax matters connected with land reforms covered by Article 31A.

 Water Disputes Tribunal 

The Parliament has enacted Inter-State River Water Disputes (ISRWD) Act, 1956 have formed various Water Disputes Tribunal for adjudication of disputes relating to waters of inter-State rivers and river valleys thereof.
Standalone Tribunal: The Inter-State River Water Disputes (Amendment) Bill, 2019 is passed by Parliament for amending the existing ISRWD Act, 1956 to constitute a standalone Tribunal to remove with the need to set up a separate Tribunal for each water dispute which is invariably a time-consuming process.

Armed Forces Tribunal (AFT)

It is a military tribunal in India. It was established under the Armed Forces Tribunal Act, 2007. It has provided the power for the adjudication or trial by AFT of disputes and complaints with respect to commission, appointments, enrolments and conditions of service in respect of persons subject to the Army Act, 1950, The Navy Act, 1957 and the Air Force Act, 1950. Besides the Principal Bench in New Delhi, AFT has Regional Benches at Chandigarh, Lucknow, Kolkata, Guwahati, Chennai, Kochi, Mumbai and Jaipur. Each Bench comprises of a Judicial Member and an Administrative Member.
The Judicial Members are retired High Court Judges and Administrative Members are retired Members of the Armed Forces who have held the rank of Major General/ equivalent or above for a period of three years or more, Judge Advocate General (JAG), who have held the appointment for at least one year are also entitled to be appointed as the Administrative Member.

National Green Tribunal (NGT)

The National Environment Tribunal Act, 1995 and National Environment Appellate Authority Act, 1997 were found to be inadequate giving rise to demand for an institution to deal with environmental cases more efficiently and effectively.
The Law Commission in its 186th Report suggested multi-faceted Courts with judicial and technical inputs referring to the practice of environmental Courts in Australia and New Zealand. As a result NGT was formed as a special fast-track, quasi-judicial body comprising of judges and environment experts to ensure expeditious disposal of cases.
The National Green Tribunal was established in 2010 under the National Green Tribunal Act 2010 as a statutory body. It was setup for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources. It also ensures enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property. 

The Tribunal is mandated to make and endeavour for disposal of applications or appeals finally within 6 months of filing of the same. Initially, the NGT is proposed to be set up at five places of sittings and will follow circuit procedure for making itself more accessible. New Delhi is the Principal Place of Sitting of the Tribunal and Bhopal, Pune, Kolkata and Chennai shall be the other four place of sitting of the Tribunal. 

Income Tax Appellate Tribunal

Section 252 of the Income Tax Act, 1961 provides that the Central Government shall constitute an Appellate Tribunal consisting of many Judicial Members and Accountant members as it thinks fit to exercise the powers and functions conferred on the Tribunal by the Act.

Characteristics of Administrative Tribunals

  • Administrative Tribunal is a creation of a statute.
  • An Administrative Tribunal is vested in the judicial power of the State and thereby performs quasi-judicial functions as distinguished from pure administrative functions. 
  • Administrative Tribunal is bound to act judicially and follow the principles of natural justice. 
  • It is required to act openly, fairly and impartially. 
  • An Administrative Tribunal is not bound by the strict rules of procedure and evidence prescribed by the civil procedure court. 

Merging of Tribunals 

The Finance Act of 2017 merged eight tribunals according to functional similarity. The list of the tribunals that have been merged are given below:
  1. The Employees Provident Fund Appellate Tribunal with The Industrial Tribunal.
  2. The Copyright Board with The Intellectual Property Appellate Board . 
  3. The Railways Rates Tribunal with The Railways Claims Tribunal. 
  4. The Appellate Tribunal for Foreign Exchange with The Appellate Tribunal (Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976. 
  5. The National Highways Tribunal with The Airport Appellate Tribunal.
  6. The Cyber Appellate Tribunal and The Airports Economic Regulatory Authority Appellate Tribunal with The Settlement and Appellate Tribunal (TDSAT) . 

The Competition Appellate Tribunal with the National Company Law Appellate Tribunal. Difference Between Tribunal and Court 

Administrative Tribunals and Ordinary Courts both deal with the disputes between the parties which affects the rights of the subjects.Administrative Tribunal is not a court. 
Some notable differences between a court and Administrative Tribunal are as follows - 
  • A court of law is a part of the traditional judicial system whereby judicial powers are derived from the state. 
  • An Administrative Tribunal is an agency created by the statute and invested with judicial power. 
  • The Civil Courts have judicial power to try all suits of a civil nature unless the cognizance is expressly or impliedly barred. 
  • Tribunal is also known as the Quasi-judicial body. Tribunals have the power to try cases of special matter which are conferred on them by statutes 
  • Judges of the ordinary courts of law are independent of the executive in respect of their tenure, terms and conditions of service etc. Judiciary is independent of Executive. 
  • Tenure, terms and conditions of the services of the members of Administrative Tribunal are entirely in the hands of Executive (government). 
  • The presiding officer of the court of law is trained in law. 
  • The president or a member of the Tribunal may not be trained as well in law. He may be an expert in the field of Administrative matters. 
  • A judge of a court of law must be impartial who is not interested in the matter directly or indirectly. 
  • An Administrative Tribunal may be a party to the dispute to be decided by it.
  • A court of law is bound by all the rules of evidence and procedure. 
  • An Administrative Tribunal is not bound by rules but bound by the principles of nature of Justice. 
  • Court must decide all questions objectively on the basis of evidence and materials on record. 
  • Administrative Tribunal may decide questions by taking into account departmental policy, the decision of Administrative Tribunal may be subjective rather than objective.
  • A court of law can decide vires of a legislation 
  • Administrative Tribunal cannot do so. 

Introduction

The follies that Indian Political System had imbibed since long was put on hold in the year 1985 when an infamous Haryana-MLA switched between two parties thrice a day in the year 1967. This incident was a highlight for the Parliament to finally, reach a saturation point and then enacted a proper law for such kind of defection. Currently, Indian Political system has a protecting gear to hinder such malpractices done by the legislators, yet the system fails to prevent such defection time and again. This evil practise still brings instability and continues to churn the political system of India.

                                        
Anti-Defection Law was brought to deal with such members of the legislature who are easy prey for the other political parties to entice them to be able to prove majority in the House by offering them hefty amounts or on other promises. Such Defection has a perpetual existence amongst the legislators, what was being perceived only as a north Indian politics earlier has now spread all across the nation. Recently, the disregard of the electoral mandate has been seen in many states such as Rajasthan, Madhya Pradesh, Karnataka and Manipur.

Enactment of Anti-Defection Law

Anti-Defection Law was enacted through a constitutional amendment in the year 1985. The 52nd Constitutional Amendment Act was brought to curb the politics of defection in the political system of India and 10th Schedule was added to the Constitution of India which talks about the Anti-Defection Law.

The defection of Legislators long existed in the political system but an infamous case of 1967 led it to the introduction of a bill to enact an Anti-Defection Law by the Rajiv Gandhi government. There was a time in the 1960s when an infamous slogan “Aaya Ram, Gaya Ram” was originated due to the continues practice of defection by the legislators. One specific case of such malpractice was when a Haryana-MLA switched between the two parties i.e., Indian National Congress (INC) and United Front, three times within a day. This was the worst turmoil of the defection practice in Indian political history.

52nd Constitutional Amendment

10th Schedule was inserted for the good of the Indian politics to curb the evil practice of detouring of legislator without any obligation to their own parties. Under the Anti- Defection Law a legislator can be disqualified from its original party on two grounds:
1) If a legislator voluntarily gives up the membership of the party he was associated with;
2) If a legislator acts against the direction of the party leader on a vote; meaning a legislator cannot disobey the party if he chooses to do so he shall be disqualified from the membership.
This law applies to both the Houses i.e. Parliament and State Assemblies.

There is an exception under Schedule 10 of the Constitution of India to protect the members from the disqualification of the membership of the party. Initially, if a party decides to merge with another party with one-third of its members then neither the members to decide to merge with another party get disqualified nor the legislator who decides to stay with the original party, both shall be immune from the disqualification. This exception led to another problem that parties started to use this split of one-third member formula unfairly.

91st Constitution Amendment Act (2003)

The lawmakers saw the unfair use of the exception provision of the Anti-Defection Law surging uncontrollably. In 2003, the 91st Amendment Act made changes to the initial Anti-Defection Law. The split numbers of the members were increased to two-third from the one-third, to merge with another party. Now if the two-third members of a party decide to split up and merge with another party or form a new party they shall be immune from the disqualification under the Anti-Defection Law.

91st Amendment also barred the member who is disqualified and his/her ministerial appointment until the period of disqualification or re-elected whichever is earlier.
The decision of the disqualification of the member shall be taken by the presiding officer of the House (in case of MPs) or the State Assemblies (in case of MLAs) and the decision of that presiding officer shall be final.

Landmark Case Laws

Kihoto Hollohan v. Zachillhu and Others (1992)[1]

In this case, the Supreme Court held that the 10th Schedule gives the sweeping power to the presiding officer to decide upon the disqualification of the members and his decision shall be final, Supreme Court restricts the decision power of the presiding officer as final and puts his decision open to judicial review through appeal in High Court or Supreme Court.

Supreme Court also held that judiciary will only intervene once the order is passed from the presiding officer on the disqualification issue, not before that.
Supreme Court also clarifies that Paragraph 2 of Schedule 10 does not violate the freedom of speech and expression of the elected members under Article 105 and 194.

Shrimanth Balasaheb Patil v. The Hon’ble Speaker, Karnataka Legislative Assembly and Ors., (2019)[2]

In this recent case when the 17 MLAs rebelled against their party, the presiding officer i.e. Speaker of the Legislative Assembly disqualifies those 17 MLAs, bans on them on contesting in an election until 2023. Supreme Court upheld the decision of the Speaker for disqualification of the 17 MLAs. Further Supreme Court denies the ban on contesting in election till 2023.
In this case the Supreme Court held the decision of the Presiding Officer as ultra vires.

Keisham Meghachandra Singh v. The Hon’ble Speaker, Manipur Legislative Assembly and Ors., (2020)[3]

In this case the Speaker of the Manipur Legislative Assembly slept on a disqualification petition filed for the defected members for three years. The Supreme Court held in this recent case that the Speaker must decide within 3 months from the disqualification petition is filed except in extraordinary circumstances. Supreme Court suggested the Parliament redefine the power of the Speaker. The Apex Court also suggested the formation of an independent tribunal for disqualification petitions for defected members.

Anti-Defection Law: Defected?

Position of the Members

At present, the misuse of the Anti-Defected law is much as if it is an avenue to be defected and not get disqualified rather the opposite. This evil practice is being justified by naming it political strategies. The continuous practice of the defection has stooped down the level of Indian Politics. Earlier this practice was sluggish but today it has paced up a lot, it has almost become a dominos, one state following the footstep of other of this evil practice of defection. MLAs have completely disregarded the democratic mandate and sell it like their own property.

The lacunae in the Anti-Defection Law are wide that gives straight and an easy avenue to the members who intend to make the mockery out of the law. Not only the members but the presiding officers also take advantage of the loopholes of the law.

Position of the Speaker

The Speaker or the Presiding Officer plays an important role as a sole decider of the defected members. The position of a Speaker is sine qua non in the Anti-Defection Law. The structural position of a Speaker is not unbiased, since the Speaker belongs to either of the parties present in the House. The Presiding Officer’s stance in a disqualification petition gets influenced by the party he belongs to.

The power of the presiding officer has been addressed before by the Supreme Court in Jagjit Singh v. State of Haryana & Ors (2006)[4] where the Apex Court highlighted the issue regarding the stance of the presiding Officer not being neutral. Again in the recent case of Manipur[5] Apex Court also suggested a few solutions to the concerning absolute power of the Presiding Officer and its unfair use.

Conclusion

India is a large democracy and the members of the Houses and Legislative Assemblies represent the people of their constituency through the electoral mandate. For the personal and political gain, the political parties pan out the evil practice of defection. Despite the bar on the defection it has now deeply inculcated in the political system to acquire the prime seat of the States or the Country.

The Anti-Defection Law must be reviewed by the Parliament and the lacunae are needed to be fixed. Indian Constitution reads the Separation of Power in its Preamble but the absolute Separation of Power is not exercised in the Nation unlike the United States of America. Today the Anti-Defection Law is in dire need of the Parliament and Judiciary to come together to make amendments as required and enforce the same to curtail the common practice of defection. 

Reference

[1] Kihoto Hollohan v. Zachillhu and Ors., AIR 1993 SC 412.
[2] Shrimanth Balasaheb Patil v. The Hon’ble Speaker, Karnataka Legislative Assembly and Ors., (2019) SCCOnLine SC 1454.
[3] Keisham Meghachandra Singh v. The Hon’ble Speaker, Manipur Legislative Assembly and Ors., (2020) SCCOnLine SC 55.
[4] Jagjit Singh v. State Of Haryana & Ors 2006 (11) SCC 1
[5] Keisham Meghachandra Singh supra Note 3.

What is a collegium system? 

The Supreme Court has invented the Collegium of judges. It is a system under which judges are appointed by an institution which is comprising judges i.e. Chief Justice of India and 4 senior most judges of the Supreme Court. There is no mention of the Collegium either in the original Indian Constitution or in any consecutive amendments.
The Collegiums System was born through the “Three Judges Case” which interpreted the constitutional articles. 

What the Constitution says?

According to our Indian Constitution, the judges of the Supreme Court and High Courts are appointed by the President and by a process of consultation. The procedure of appointment of judges for the Supreme Court and High Courts is provided under the Article 124 and Article 217 respectively.
These Articles state that every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India (CJI) and other judges of the Supreme Court and the High Courts as the President of India may deem necessary for the purpose.
Every judge of the High Courts are appointed by the President by warrant under his hand and seal after consultation with the CJI, the Governor of the concerned state, and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.
But does the term “consultation” actually apply? Do the CJI has to agree with the recommendation given by the President? What happen if the Chief Justice of India and the President differed?

Why the collegium system came into existence?

The concept was begins in 1973 when, by a very narrow margin of 7-6 the Supreme Court has delivered its historic verdict in Kesavananda Bharati v. the State of Kerala. This case has established the doctrine of “basic structure”.
The verdict of Kesavananda Bharati was disliked by the central government which is led by Indira Gandhi, which viewed it as a curtailing of its powers. How the government has reacted on it? On 26 April 1973, Justice Ajit Nath Ray, was promoted for the position of CJI. But he was not the senior-most judge. He was one of the 6 judges who were ruled against the doctrine of basic structure in the case of Kesavananda Bharati. His promotion for the position of CJI was done by superseding three more senior judges, those three judges has ruled in the favor of doctrine of basic structure which was disliked by the government. This was a kind of attack on judicial independence by the executive. Supreme Court was facing with a crisis surrounding both i.e. its independence and to secure its independence in the long-term. The main question was that who has the final say in the appointment of judges, it is the government or the Supreme Court? The answers were given by the “Three Judges cases”.
S. P. Gupta v. Union of India, 1981 (it also known as the Judges' Transfer case) Supreme Court Advocates-on-Record Association vs. Union of India, 1993 In re Special Reference 1 of 1998

1. In the First Judges Case (1981), the Supreme Court has held (4-3) that in the appointment of a judge of the Supreme Court or the High Court, the word “consultation” in Article 124 (2) and in Article 217(1) of the Constitution does not mean “concurrence”. If there is disagreement, the “ultimate power” will be rest with the Union Government and not the CJI. Therefore, First Judges Case was an instance in which the apex court has acted against its own interests.
2. The Second Judges Case (1993), SC was hearing the petitions regarding court vacancies. The First Judges Case was referred again to a Bench of nine-judges. First Judges Case was overruled by the court with the majority of (7-2) in the Second Judges Case. It was held that if there is conflict between the President and the CJI with regard to appointments of Judges, it was the Chief Justice of India whose opinion would not only have primacy also it would be determinative in the matter. The Second Judges Case has introduced the Collegium system. The court also expanded that appointments would be decided by:
The CJI and the two most-senior judges, for the appointment of SC judges;
The two most senior judges of the respective HC for appointing judges to that particular HC.
3. The Third Judges Case (1998), the Supreme Court has delivered its opinion responding to a question of law regarding the collegium system, raised by the President of India under his constitutional powers provided under article 143. The SC has reconfirmed its 1993 judgement and expanded the Collegium to a body of five member which includes the CJI and the four most-senior judges of the court. 

NJAC replacing Collegium:National Judicial Appointment Commission Act, 2014 ensures to bring a change in the appointment of judges. This act was introduced to replace the collegium system. The two bills the constitution (99th amendment) Act, 2014 and National Judicial Appointment Commission Act, 2014 (121st amendment) was passed in both the houses and on 31st December, 2014 it was published in gazette of India. 
NJAC Governing Body:
NJAC bench consist of six people:

The Chief Justice of India (CJI), Chairperson.
The two senior most judges of Supreme Court, Members.
The Union Minister in charge of law and justice, Member.
Two Eminent Persons, these eminent persons are to be nominated by committee consisting of CJI, the Prime Minister, and the leader of the opposition in the House of People or where there is no such leader of opposition, then, the leader of single largest opposition party in the House of People, (for the term of three years and they are not eligible for re-nomination), Members.

Constitutionality of NJAC

NJAC amends:-
· Article 124A - Defines NJAC.
· Article 124B - Functions of Commission (NJAC).
· Article 124C - Power of parliament to make law.

What is good about the collegium system?

 A simple understanding can make the collegium system opaque, especially because the power to select future judges is only in the hand of judiciary. However, it is also a way to make judiciary independent of politics. By keeping out the role of the legislature and executive, the system is believed that it will keep the selection of future judges free from outside interference. It upholds the seniority of candidates and follow the principles of separation of powers in the Constitution. With the involvement of government, many fear that the judiciary may have to compromise on its independence.

Collegium System’s Transparency

Collegium system has been criticized for closed door shutters and having no transparency. When the NJAC bill was passed in both the houses it was looking like the long pending demand for transparency and accountability have been forgotten in these new bills. The government wants to interfere in the working of independence judiciary and make it transparent. Article 124C Indian Constitution

What is good about NJAC? 

In NJAC, there are three members are outside from the judiciary and three members which are inside from judiciary. Also, the government and the opposition have power to nominate members to the council which made the council diverse.
In NJAC, the members who are part of it they have veto power. If two members uses their veto power in a nomination or decision, the matter is dropped there.

NJAC is Unconstitutional or Void?

On 16th October, 2015 the Supreme Court held that NJAC is unconstitutional and void. The existing system for the appointment and transfer of judges will be followed. By the majority of 4:1, the NJAC Act was rejected.
The five bench judges also said that the collegium system for the appointment judges is not perfect, but the collegium system is very useful and can be improved. Thus, some measures should be taken to improve this system and not to decline it.
Neutrality of Constitutionality of NJAC is very much complicated and transparency is also not clear up to some extent. But everyone has their own opinion about constitution of NJAC as well as Collegium System.

Reference:

Indian Constitutional Law, Jain M.P
https://indiankanoon.org/doc/1164880/
https://www.latestlaws.com/

Introduction

The Legal System is the part of a country’s government which administers justice in accordance with the law. It apply the law, settle disputes, punish law-breakers, protects rights of individuals and fills loop holes in the law. The Legal system that we see today is the result of 1000 years legal evolution from divine law of the nature to the positive law that we see today. Since the beginning of human civilization judiciary, in some form, kept protecting the both person and property of the individuals; but then who will protect the Judiciary itself. 


There the concept of ‘Contempt of Court’ has evolved, which seeks to protect the judicial institution and its members from motivated attacks and unwarranted criticism by punishing those who intends to lowers its authority. In the case of Attorney-General v. Times Newspapers Ltd., Lord Diplock[1] defined the term ‘Contempt of Court’ as a generic term descriptive of conduct in relation to particular proceeding in a court of law which tends or intents to tend to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. Thus in simple terms the Contempt of Court can be defined as an offence of being disobedient to or disrespectful toward a court of law and its officers in the form of behaviour which oppose or defies the authority, justice and dignity of the court. In India Contempt of Court is defined under Section 2(a) of Contempt of Court Act, 1971 as, “Contempt of Court means civil contempt or criminal contempt”.

Origin of the concept

The concept of Contempt of court is as old as the Legal system. The origin of the concept can be seen in the medieval times when the monarchs transfer their royal power to court and at this time monarchs were believed to be the appointee of God and everyone is accountable to him. Thus at that time if someone disregards the authority of court, it meant to be the disregard of king which ultimately means the disregard of god itself and thus the person committing such disregard is punished for his act. In England it is principle of common law which seeks to protect the dignity of the king as a Judge and later to protect the dignity of the panel of judges who acted in the name of King. In India similar to other laws the law of contempt of court have also been borrowed from the Britain but it has not been absolutely taken from English laws rather it has other origins too. Reference to this concept can be seen in Arthashastra of Kautilya, he says that any person who insults or lowers the dignity of the King and his council or attempts to do so then the tongue of that person should be cut off.
With the adoption of Constitution of India, Supreme Court in India possessed the same power by the virtue of Article 129 and Article 142(2) of the Indian Constitution. However until the year 1952, there was no specific law for the Contempt of court in India, but then with the enactment of Contempt of Court Act, 1952 India has the established law for the purposes. To bring certain changes and to make the law of contempt more strong Shri B B Das Gupta introduced a bill in the Lok Sabha, after which the then government discerned the need for reforms in the existing law. So a special committee under the Chairmanship of H.N. Sanyal was established. The Sanyal Committee report brought the reforms in the act and provided what we today see as Contempt of Court Act, 1971.

Contempt of Court Act, 1971: Introduction

The law relating to Contempt of Court in India is now governed by the Contempt of Court Act, 1971. Earlier this act extends to whole of India except the State of Jammu and Kashmir, but after the removal of Article 370 of Indian Constitution this act becomes applicable to Jammu and Kashmir also. Section 2(a) of the act define Contempt of Court as, “Contempt of Court means civil contempt or criminal contempt”. Thus it is evident from this section that in India there are two types of Contempt of court:

1. Civil Contempt: Civil Contempt can be defined as the wilful disobedience to any judgment, order, decree, direction, writ or any other process of a court or wilful breach of an undertaking given to a court.[2] In simple terms where action of contemner is wilful, deliberate and in clear disregard of Court's order, it amounts to civil contempt.[3]

2. Criminal Contempt: Criminal Contempt can be defined as made publication of any matter either by words, spoken or written, or by signs, or by visible representation, or otherwise or the doing of any other act whatsoever which,
(i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.”

Essentials of Contempt of court

An act to be treated as Contempt of court must fulfill certain essentials, which are as follow:
1. The court should make a valid order.
2. The order passed should be in the knowledge of the respondent and that he was able to perform the order.
3. In case of civil contempt there should be the willful disobedience of the order.
4. In case of criminal content there should be the publication of the matter which scandalizes, creates a prejudice or interferes with the administration of justice.

Limitations of the act

The Contempt of Court Act which seeks to protect the dignity of court and to prevent any restriction in the administration of justice, is also subject to certain limitations provided by the act which are as follows:
1. A person cannot held guilty for the contempt of court for publishing any matter which interferes or tends to interfere with, or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceeding pending at that time of publication, if at that time there existed no reasonable grounds for him to believe that the proceeding was pending. Also he cannot be held liable on the ground of distribution of any matter if he had no reasonable grounds for believing that it contained or was likely to contain any such matter as aforesaid.
2. A person cannot be held guilty of contempt of court for publishing a fair and accurate report of a judicial proceeding or any stage thereof.
3. A person cannot be held guilty for publishing any fair comment on the merits of any case which has been heard and finally decided.
4. A person cannot be held guilty of contempt of court for any statement made by him in good faith concerning the presiding officer of any subordinate court to,
a. any other subordinate court, or
b. High Court to which that court is subordinate.
5. A person cannot be held guilty of contempt of court for publishing a fair and accurate report of a judicial proceeding before any court sitting in chambers or in camera except in the following cases where:
a. the publication is contrary to any law, or
b. the court prohibits any such publication on the ground of public policy or in the exercise of any power vested, or
c. publication is of information relating to the proceeding of a case relating to public order or security of the state.
6. The act also restricts the courts from enlargement of the scope of the word ‘contempt’.
7. A person cannot be held guilty of contempt of court for an act if it does not interferes or tend to interfere with the due course of justice.
8. No proceedings of contempt of court can be initiated against any person after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.
9. This act is not applicable in relation to contempt of Nyaya Panchayats or any other village courts, by whatever name known, for the administration of justice, established under any law.

Introduction

Justice comes much later in any society what comes first is concept of crime. In other words, there is no need of justice if the society is crimeless or there is no crime prevalent in any form in the society. There is something unique type of crime or offense which we are concerned with i.e. lynching, particularly in Indian laws; there has not been single act which defines lynching directly though there have been various cases in the recent past. 
If we try to understand the basic definition of mob lynching, then first we need to break the terms into two i.e. “Mob” and “Lynching” , where mob means ‘group of people united for common purpose’ and ‘lynching’ means ‘extrajudicial killing of victim by taking rule of law in own hands in order to punish the victim for his/her bad conduct towards the society(mere suspension is also enough), so mob lynching means extrajudicial killing of a person by group of people by unlawful means in order to administer justice even before the trail and court of law. 

We will now try to understand the term “mob justice” as we have discussed mob lynching more as an offense , so if we see one perspective or one side of the same coin i.e. from the perspective of democracy , rule of law and justice then in that case act done by group of people will be considered as illegal in eyes of law or reasonable prudent man, at the same if we focus on other perspective of group of people responsible for lynching then in that case the act done by those group of peoples we be deemed just as they are punishing the culprit ,here in this case it become more important to define culprit , here culprit term is variable for those people , for them even mere the accused or suspect can be held guilty.

CONFLICT: MOBOCRACY VS. DEMOCRACY

In democracy we the people elect our representatives to protect human rights , basic fundamental right and to establish stability in the region where the things can be changed by the process of debate rather than revolution basically the spirit of the people lies in the constitution of the country ,here also comes into effect social contract theory where people surrender few rights in the forms of duties towards state and in result of that state will give protection to the people from any external territory and integral aggression for that matter . As we discussed constitution is the spirit of democracy as it mentions right to life is our fundamental right and state has the duty to protect life of individual.

On the other hand, Mobocracy means power is within an intolerant group of people, they acquire all the power to rule over matter of public affairs. These groups are known to serve the purpose of justice even before trial but do you think there is no importance of judiciary in the country? the answer is no, judiciary plays very important role in any democracy and what mob do in the same of justice, they just do killing upon mere fake news spread on social media, though all news are not fake but still not believing in justice system of the country is not justice and it is against the fundamental principle of democracy as justice is law’s business not mobs[i] . Now consider the second factor into picture – what if the accused person who was killed in mob lynching is innocent and the claim was false, then who will insure justice to victim, so mob justice is no justice. We have no law in the country on lynching does not implies that mob will be given free hand to do killing on the name of justice

LEADING CASES IN INDIA

There has been various cases of mob lynching , statistical data shows that more than 100 deaths has been caused since 2015 which includes death of pocket pickers, death of suspected child lifters, death of sex workers, it even also includes death of dalits and minorities . Supreme Court has recommended the Centre to come up with an act against mob lynching and court has also provided 11 pointers[ii] to stop mob lynching.

The 2015 Dadri mob lynching refers to case of mob lynching in which a mob of villagers attacked the home of 52 year old Mohammed Akhlaq, killing him, for suspicion of slaughtering a cow. The attack took place at night, on 28 September 2015 in Bisara village, near Dadri, Uttar Pradesh, India[iii] .

The lynching of Pehlu Khan in Rajasthan serves as a classic example. In this case, the state police filed a chargesheet for cow smuggling against the deceased who was lynched by a mob of self-styled gau rakshaks – who were eventually acquitted – in Alwar for transporting cattle in 2017[iv].

On 16th April 2020, two Sadhus associated with the Juna Akhara, 70-year-old Kalpavrishka Giri Maharaj, and 35-year-old Sushil Giri Maharaj along with their driver 30-year-old Nilesh Telgadewere were on their way from Mumbai to Gujarat to give Samadhi to another Sadhu. At Gadakchinchale village, a wild and frenzied crowd of over more than 100 people attacked them. The villagers allegedly deemed them as thieves and started attacking them. The police claim that their team which had rushed to the spot to rescue the 70-year-old man also came under the attack of the violent mob[v].

CONCLUSION – A WAY FORWARD

Lynching should be sanctioned by law as in democratic country every individual or group need to follow rules and regulation and those rules and regulations drive their authority from constitution itself. Mob lynching can be spontaneous as well as premeditated, many time it has been seen that many innocent people got lynched, for example- in Palghar there was spontaneous reaction of mob against those sadhus as they treated them as sadhus. there has been various instances where Muslims has been killed for no reason or because they are Muslim and has been caught in activities of cow slaughtering which is against the sentiments of Hindus .

There should be proper establishment of special task force to monitor the issue of mob lynching. fake news spread need to be addressed by putting surveillance and we have to make IT laws more stringent in terms of monitoring fake news spread via social media, It is time that we concentrate on redefining our ideals and standards of humanity. We need to start calling the perpetrators of this offence just what they are: murderers, not preachers of self-righteousness. Morality or perceived piety of murderers, in any progressive society, can never be a defense to their crime[vi].

INTRODUCTION:

There is a well known maxim known as ‘Audi Alteram Partem’. The meaning of this maxim is, ‘Hear the other party’. Unfortunately, this principle has nearly been forgotten in India. There are a lot of incidences of encounter killings by the police in the country recently. The families fear that if their beloved is taken into custody for investigation by the police, he might not be brought back alive. These officials are taking up the administration of justice in their own hands causing injustice to the accused persons. Article 11 of the Universal Declaration of Human Rights provides that, Each person being charged with any kind of penal offence is presumed innocent in the Court of law until proven guilty and the accused also has the right to use all the defences available to him. Killing a suspect without giving any of the defences available to defend him/her who might actually be an innocent having to do nothing with the charged offence is inhumane and arbitrary. 

LEGALITY OF EXTRAJUDICIAL KILLINGS

Extra-judicial killing being illegal, no one has the power to take the life of any one irrespective of the grievous or the most heinous crimes committed by him/her. However, there are certain exceptions given to this principle where a person will not be held liable for causing the death of the other person. The following are some enabling provisions which protect the people who deal with certain criminals which may also result in his/her death.

Right of private defence:

Sec. 100 of the Indian Penal Code(IPC) provides that a person can exercise his right of private defence to the extent of causing death to the other person if there is a reasonable apprehension in the mind of the person that there is a threat to his life. In this case, apprehension is enough and it is not necessary to actually get hurt to exercise his/her right of private defence. In the case of Extrajudicial execution victim families association v. Union of India (2016), it was held that the right of private defence is available only to defend oneself when there is an immediate danger to him/her. It cannot be used to retaliate nor can it be used when he/she feels that there might be a threat to life in the future.

Authority given to the police officers:

Sec.46 of Criminal Procedure Code (CrPC) provides the procedure on how the criminals should be arrested. Sec.46(2) of CrPC provides that if a person getting arrested for any crime resists or attempts to evade the arrest, the person who is authorized to arrest the person can employ such means necessary(which may also extend to causing death) to effect the arrest. Whether the means employed was necessary will depend on a reasonable man having no intention to cause any injury would have employed the same means. Sec.46(3) of CrPC provides that there is no right to cause death to any person other than a person accused for an offence punishable with death or imprisonment of life.

Culpable homicide not amounting to murder:

Exception 3 to Section 300 of the Indian Penal Code provides that a culpable homicide is not murder if a public servant while discharging his duties towards advancement of public justice exceeds the power given to him and causes the death of a person which he believes to be lawful and necessary in the present circumstance without any ill-will or bad intention towards the person whose death is so caused.

CONSTITUTIONALITY OF EXTRAJUDICIAL KILLINGS

Extrajudicial killings except the exceptions provided by law are violative of the constitutional provisions. The Constitution of India guarantees some basic rights and safeguards to all its citizens and expects the State to uphold it. Of all the rights provided, Right to life is a basic and notable right provided by the Constitution. This is because if there is no life, then there can be no enjoyment of any other rights provided by law. Art. 21 reads as follows:
No person shall be deprived of his life or personal liberty except according to the procedure established by law.
In Maneka Gandhi v. Union of India, the Supreme Court laid some guidelines with respect to the procedure established by law. They are as follows:
1. There must be a valid Law
2. The Law must provide a procedure
3. The Procedure must be Just, Fair and Reasonable
4. The Law must satisfy the Requirements of Art. 14 and Art.19
Also in the case of Anita khushwaha v. Pushap sudan, it was held that access to justice is a fundamental right considered under Art. 14 and Art. 21 of the Constitution. If any person is denied of this right, he can get relief by approaching the Court through Art.32 of the Constitution.
In the case of Kartar Singh v. State of Punjab, it was held that one of the most important principle of Natural justice is Audi Alteram Partem i.e. to hear the other party. There are two facets to this principle. The first is issuing notice which is followed by hearing.
When the police authorities take up the administration of justice in their own hands, they neither follow any procedure to deprive the accused of his life nor the procedure adopted is fair and reasonable and therefore it clearly cannot be called as a procedure established by law. Thus, extrajudicial killings are unconstitutional since it violates Art.21 of the Constitution.

GUIDELINES GIVEN BY THE NHRC

National Human Rights Commission have issued guidelines relating to encounter killings to all the States and Union territories and they are required to strictly abide by it.

Registration of FIR:

First Information Report (FIR) should be recorded at the earliest when information regarding any encounter deaths was informed to the police in-charge.

Investigation:

Receiving information regarding the encounter killing is sufficient for the police to start the investigation. The police should first analyze the facts and circumstances to identify if the informed offence was committed and if so by whom it was committed. If the accused in a police officer in the same station then the case should be transferred to an independent investigation agency.

Compensation to the aggrieved:

The compensation shall be provided to the family of the victim only after the case ends in conviction and all the police officers accused of illegal encounter killing have been found guilty and prosecuted in the Court of law. In 2010, further extension was given to the guidelines which are as follows:

Magisterial enquiry:

An enquiry by the magistrate should be held within 3 months if a death occurs in the course of police action. The first report of the enquiry should be submitted to the NHRC in all cases of similar deaths within 48 hours. The second report regarding it should be submitted within 3 months. The report should contain the detailed information regarding the enquiry by the magistrate. The report should also be annexed with the post mortem report of the victim.

CONCLUSION

These arbitrary encounters by the Police should never be encouraged by the public no matter how horrifying the criminal was. The media should also be very careful in taking films starring police characters. It is not very wise of the media to take films showing an act of the police character taking the administration of justice in his own hands and exiling the villains as an act of heroism. After all, he has just done the same act which the criminal did! Even if the police authorities have overwhelming evidences against the accused, it is not the duty of the police to kill him just because he is a dreaded criminal. The work of the police ends with arresting the accused, providing the evidences and producing them for trial. The policemen should be charged with murder for any arbitrary killings in the name of encounters and they should also realize that gallows await them for such merciless murders.

REFERENCES:

[1]https://www.jatinverma.org/legal-aspects-of-extra-judicial-killings
[2]https://criminallawstudiesnluj.wordpress.com/2019/12/07/undermining-the-rule-of-law-can-the-extra-judicial-killings-be-justified-caution-graphic-content/
[3]https://thelawblog.in/2020/07/12/private-defence-and-section-463-crpc-way-to-extra-judicial-killings/comment-page-1/
[4]https://legalreadings.com/extra-judicial-execution-an-analysis/

Introduction

This is fact that our existing judicial system cannot deliver speedy justice due to inherent delays, technicalities of procedure, by labyrinth of appeals and unaffordable cost and in every country the government incline their interest in private issues like social security, income tax assessment, the role of administrative in decision making for public.
In response to the speedy justice and private interest, the government setup a institution to work for public interest; and those authorized institution are known as Tribunals.
The literal meaning of Tribunal is ‘Magistrate of classical Roman Republic.’ Tribunals are mainly quasi – judicial body which solve the disputes between the government and the citizen. It is reputated as fairness of justice, solve the disputes with very flexibility and speedly. Its function are like adjucating disputes, making administrative decision determing the rights between contesting parties and so on.
In India, Tribunals are generally use in four different sense:-
All the quasi – administrative body termed as tribunals and these bodies have to follow the rule of natural justice while rendering decision.
All the administrative bodies which are outside the control of department involved in disputes and decide disputes, which are free from any biases.
The term tribunal used in article 136 of Constitution of India and has special meaning. With reference to its special leave jurisdiction, the Supreme Court held that the authority must exercise ‘ inherent judicial power of the state’. The court would not hear an appeal merely from an administrative body, which in its decision making process is required to follow the principles of natural justice, if it is not discharging the inherent judicial powers of the state. Thus, the test to identify a tribunal is not control, composition or procedure but its functions. Consequently, every departmental bodies may be classified as ‘tribunals’.
Under article 323A and 323B, tribunals has been established by the 42nd amendment act, 1976.

But the main question arises that how to organize Tribunal in such manner so that it does not violate the integrity on constitutional judicial system. Tribunal thus may be organized as part of the civil and criminal court system under the canopy of Supreme Court of India as have been organized in U.K under tribunals, courts and enforcement 2007.

In Constitution of India, 1950 Tribunals were not Part of it, it was incorporated by 42 amendment act, 1976. Article 323A and Article 323B.
Article 323-A :- It deals with administrative tribunal. It mainly talks about establishment of Tribunals in public matter. Administrative tribunals shall establish by parliament and only one tribunal shall establish for centre and one in each state or two or more than two in state.
Article 323-B :- It deals with Tribunals in other matter. Under this article, parliament and state both are authorized to provide for establishment of tribunal in following matter:-

1. Taxation
2. Foreign exchange
3. Industrial and labour
4. Land reforms
5. Ceiling on urban property
6. Election to parliament and state legislature
7. Food stuff
8. Rent and tenancy rights

How Tribunals perform

Tribunals perform like Civil Court relating matter like to examination, discovery, inspection, production of document , compelling attendance of witness and issuing commission. In absence of administrative requirement, tribunal shall follow the principle of natural justice.
Tribunals are also have give the reasons for their decision for the interest of public.
The principle of res judicata does not apply to the tribunal and tribunals are also not bound to follow any order of Supreme Court, tribunal which are working under the territorial jurisdiction of High Court by the law and laid by that High Court.

Administrative Tribunal
Administrative tribunal was set up by Administrative Act, 1985 under article 323 A. It mainly provide three types of tribunal :-
1. Central Administrative Tribunal (CAT)
2. The central may consultation to state establish state tribunal for state employees.
3. When two or more state for joint tribunal than centre establish Joint Administrative Tribunal (JAT).
Characteristics of administrative tribunal:-
● It’s a creation of statues and has statutory origin.
● It perform judicial and quasi judicial function as it is entrusted with judicial power of state.
● It is not bound by strict rules and evidences.
● The decision of most of the tribunals are in fact judicial rather than administrative in as much as they apply law to them have to record findings of facts objectively and then apply to them without regards to executive policy. Though the discretion is conferred on them, it is to be exercised objectively and judicially.

How tribunals are different from Court:

1. Tribunals are an institution created by statutes and invested with judicial power where as Courts are traditional judicial system and powers are came from state.
2. Tribunals are also known as quasi –judicial body and they have power to deal with some specific disputes whereas Courts have judicial power to try all kind of suits which are civil in nature.
3. The executive have power to decide tenure, terms and conditions of the services of members of administrative tribunals where as judges of court are independent of executive.
4. The authorized person of the tribunals are expert in the field of administrative matters but they are not very well trained but in courts the presiding officers are very well trained.
5. Tribunals are not bound by the evidences and procedures but they are bound by the principle of natural justice where as Court by all the rules of evidence and procedure.
6. The decision of tribunal may be subjective rather than objective where as the court must have to decide their questions on objective basis.
7. Tribunal cannot decide vires of legislation where as court can do so.

Conclusion

It is a well known fact that the tribunal plays important role in adjudication of disputes. It is very much different from the court in form of procedure they followed. Any uniform procedure laid down under Civil Procedure Code and The Evidence Act are being followed by tribunal, it only follow the principle of natural justice. But still try to deliver justice as same as Court deliver.

-Reema


INTRODUCTION

He killed a person brutally. He was brought to the Court. The Court sentenced him to death and consequently he was hanged to his death. Is justice sought? We are basically killing the killer to show that killing is wrong. This is nothing different from creating a war to achieve peace! Of course, a dead person can not commit any future crimes. However, the purpose of criminal punishment is not only the prevention of new crimes by convicts and other persons. Criminal liability is aimed at correcting the offender and contributing towards the restoration of social justice. Criminal liability, as well as justice in general, should not be an act of avenging the victim. It is impossible for a killed man to understand his actions and repent.

INDIAN JUDICIARY ON DEATH PENALTY:

The Supreme Court of India as the highest Appellate authority of India has given its authoritative decisions on various points of law. Likewise, the apex court has also examined the constitutional validity, procedure and many other issues related to the imposition of capital punishment.

In Attorney General of India v. Lachma Devi(1985), it has been held that the execution of death sentence by public hanging is barbaric and violative of Art. 21 of the Constitution. It is true that the crime of which the accused have been found to be guilty is barbaric, but a barbaric crime need not necessarily have to be visited with a barbaric penalty such as public hanging.

In the case of Rajendra Prasad v. State of U.P.,(1979), Krishna Iyer, J., held that capital punishment would not be justified unless it was shown that the criminal was dangerous to the society. He held that giving discretion to the Judge to make choice between death sentence and life imprisonment on ''special reason" under Section 354 (3) of Cr.P.C., would therefore be violative of Art.14 which condemns arbitrariness.

In contrary to the judgement of the above cases, the courts in majority of the cases held the view that imposition of death penalty is not opposed to the supreme law of the land.

In Jagmohan Singh v. Uttar Pradesh(1973) , the validity of death sentence was challenged for the first time on the ground that it was violative of Art.19 and 21 because it did not provide any procedure for depriving a person of his life. It was contended that the procedure prescribed under Criminal Procedure Code was confined only to the findings of guilt. However, the Supreme Court held that the choice of awarding death sentence is done in accordance with the procedure established by law. The Judge makes the choice between capital sentence or imprisonment of life on the basis of circumstances and facts and nature of crime brought on record during trial. Accordingly, the Court held that the capital punishment was not violative of Arts. 14, 19 and 21 and was therefore constitutionally valid.

In Bachan Singh v. State of Punjab(1980), the Supreme Court by 4:1 majority overruled Rajendra Prasad’s decision and held that the provision of death penalty under Section 302 of I.P.C. as an alternative punishment for murder is not violative of Art. 21. Art. 21 of the Constitution recognizes the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law. The Court further held that the ‘public order’ contemplated by clauses (2) and (4) of Art. 19 is different from ‘law and order’ and also enunciated the principle of awarding death sentence only in the ‘rarest of rare’ cases.

In Deena v. Union of India(1983), the constitutional validity of Section 354 (5), Cr.P.C., was challenged on the ground that hanging by rope as prescribed by this section was barbarous, inhuman and degrading and, therefore, violative of Art. 21. The Court held that Section 354 (5) of the Cr.P.C., which prescribes hanging as mode of execution lays down fair, just and reasonable procedure within the meaning of Art. 21 and hence is constitutional.

 In Smt. Shashi Nayar v. Union of India and others(1991), the Supreme Court bench once again upheld the constitutionality of the death penalty. The Court did not go into the merits of the argument against constitutionality, arguing that the law and order situation in the country has worsened and now is therefore not an opportune time to abolish the death penalty.

 

 

However, death sentence cannot be imposed if the following two reasons are satisfied.

1.     When the judges hearing the case had not reached unanimity in the question of sentence or of guilt

2.     When the accused had previously been acquitted by a lower court.

IS THE DEATH PENALTY CONSTITUTIONALLY VALID?

Every legislative, executive as well as judicial decision should be constitutionally valid. That is, it should not be outside the scope of the constitution. However, the imposition of death penalty is violating the basic structure of the constitution by way of violating Art.14 and Art.21 of the Indian Constitution.

1. Violation of Article 14 of the Constitution

Article 14 of the constitution reads as follows:

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

According to the judgement given in Bachan Singh case, death penalty can be imposed only in rarest of rare cases. The aforementioned doctrine is clearly violative of Article 14, since it does not function under any established guidelines or framework. That is, there is no law enacted by the legislature which provides the conditions or essentials to be satisfied for the imposition of death penalty. Under this doctrine, a judge has the discretionary authority to apply the law of capital punishment at his/her own will. Thus the doctrine is in itself enabling the judicial authority to discriminate. Though it may be argued that the judges are trained to be unbiased, he/she is still prone to the whims of subjectivity, socialization, and human nature. Without a framework, a judge will impose death penalty according to his/her own belief system. And the decision based on one’s belief system may seem right to one person but may be wrong to the other person. Thus the arbitrariness in the imposition of death penalty clearly violates Art. 14 of the Constitution.

 

2. Violation of Article 21 of the Constitution

Article 21 of the constitution reads as follows:

“No person shall be deprived of his life or personal liberty except according to the procedure established by law”.

According to the principles propounded in the Maneka Gandhi case, the procedure for depriving someone of their life or liberty or both must be reasonable, fair and just. However it is clear that the Supreme Court has not prescribed any procedure to begin with. The decision to take someone’s life or liberty is based on personal discretion subject to biases and flaws in human nature. Since there are no established guidelines for judges to follow, the procedure cannot be deemed reasonable, fair or just. Since the procedure is neither fair nor reasonable the practice of depriving a person of his/her life cannot be justified. Thus Article 21 is clearly violated in the present case.

The common argument which most people will have for justifying the imposition of death penalty is that it serves as an effective deterrent against future crimes. That is, the criminals will hesitate to commit grievous crimes if the imposition of death penalty is in force. But, this is an argument which is based entirely in theory, and has no statistical or empirical data evidence backing it. There is no denying that there can always be a margin of error in a conviction, and an innocent could wrongly be sentenced to death, taking away his/her rights under Articles 14, 19 and 21 for no reason. With a Constitution which is so committed to protecting the rights and the dignity of the individuals, even the possibility of an error should be enough to disallow the passing of the death sentence. Capital punishment therefore doesn’t seem to serve any constitutional end.

CONCLUSION:

Thus the death penalty is in no way contributing towards the achievement of justice. The death penalty is treating criminals as non humans who should be eradicated from the society. The principle behind death penalty is ‘an eye for an eye and a tooth for a tooth’. This is the principle which was followed for the administration of justice nearly a century ago! Death penalty is neither going to reform the criminal nor is going to bring the victim back to life. Therefore, it is only wise for a civilized society like India to abolish death penalty altogether and go for a reformative method of punishment.

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