Why is it in the News?

The process of judicial review should be strong, immediate, and unambiguous in the case of statutes that are obviously unconstitutional or divisive.

Context:

• The role of judicial review has become increasingly significant in contemporary times.
• The Supreme Court of India is currently examining a crucial case regarding the constitutionality of the Citizenship (Amendment) Act (CAA) and its associated rules.
• The ambiguity in these rules has raised concerns, especially for applicants whose citizenship requests have been denied, highlighting the urgent need for redress.
• Additionally, the issue of dual citizenship for foreign applicants, without renouncing their original citizenship, has created a conflict with the law.
• This ambiguity goes against the Parent Act's spirit, as some petitioners pointed out.

Legislative Malice, Judicial Review, and the Challenge of Populist Regimes:

• Constitutional courts do not routinely interdict statutes or statutory rules, as laws passed by Parliament are generally presumed valid unless proven to contravene constitutional provisions.
  • Moreover, the legal doctrine maintains that malice cannot typically be attributed to the legislative process, as established in Manish Kumar vs Union of India (2021).
• In Gurudevdatta Vikoos Maryadit vs State Of Maharashtra (2001), the Supreme Court further emphasized that "legislative malice is beyond the pale of jurisdiction of the law courts."
  • However, this conventional wisdom may be insufficient when addressing the unique challenges posed by populist regimes employing motivated legislation.
• As populist governments worldwide increasingly weaponize legislation to further their political agendas, the question arises as to whether constitutional courts should reconsider their stance on legislative malice.
  • Given the potential for populist regimes to undermine democratic principles and erode the rule of law, the need for robust judicial review has never been greater.
• In light of these challenges, a careful reevaluation of the limits of judicial intervention may be necessary to ensure that the rights and freedoms enshrined in constitutional democracies are protected from malicious legislative actions.

Judicial Challenges and Lessons from the Recent Cases:

• Recent cases have highlighted the pressing need for a more proactive judiciary in safeguarding democratic principles and the rule of law.
• In Vivek Narayan Sharma vs Union of India (2023), the irreversible consequences of the absence of judicial intervention regarding Kashmir's special status were brought to the forefront.
• The Anoop Baranwal vs Union of India (2023) case underscored the necessity for an independent body to select the Election Commission of India (ECI).
  • However, the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, reintroduced the "Prime Minister's Committee" system for ECI appointments, raising concerns about the impartiality of the selection process.
• When this Act was challenged in Jaya Thakur vs Union of India (2024), the Court declined to halt its implementation, citing the presumption of validity.
  • This decision exemplifies how an overly deferential approach to legislative actions can potentially jeopardize democratic institutions and processes.

Case Studies and Implications of Targeted Legislation:

• The Citizenship (Amendment) Act (CAA): CAA exemplifies targeted legislation, as it explicitly excludes Muslims from the citizenship application process, demonstrating a clear case of legislative malice through religious categorization.
• Tripple Talaq case: Another instance of targeted legislation is the Muslim Women (Protection of Rights on Marriage) Act (2019), which criminalized instant triple talaq.
  • Despite the Supreme Court declaring instant triple talaq void in Shayara Bano (2017), the Act's criminalization of an already legally invalid practice appears excessive and unnecessary.
• Unintended effects: Unintended consequences have arisen from the triple talaq legislation, as some individuals now resort to alternative divorce methods or desertion to avoid potential legal repercussions.
  • Although the law aimed to protect Muslim women, it has paradoxically worsened their situation.
  • Furthermore, such divisive measures have inspired similar legislation in other states, such as anti-conversion laws, perpetuating social divisions.
• These cases reveal the need for a vigilant judiciary to scrutinize targeted legislation and ensure that laws do not perpetuate discrimination or undermine fundamental rights.
  • Addressing legislative malice is essential for preserving the integrity of democratic institutions and upholding constitutional principles.

Judicial Scrutiny in Contemporary Politics: International Perspectives and Indian Precedents

• The Evolution of Judicial Scrutiny in Modern Politics: Traditionally, the United States has been cautious about judicial nullification of statutes based on malicious intent.
  • John Hart Ely argued that using the Constitution to penalize perceived ill intentions of political leaders is inappropriate.
• Susannah W. Pollvogt's Viewpoint on Discriminatory Law: However, in today's political climate, where legislative actions driven by malice are increasingly common, a growing need for more rigorous judicial scrutiny has emerged.
  • Scholar Susannah W. Pollvogt contends that animus, or hostility, can never justify discriminatory state actions under equal protection analysis.
  • She cites the United States Dept. of Agriculture vs Moreno (1973) to illustrate how legislation targeting specific groups reflects discriminatory intent and a desire to cause harm.
• Indian Legal Precedents for Judicial Intervention: In India, there are instances where the Supreme Court has intervened to halt the implementation of parliamentary legislation.
  • In Ashoka Kumar Thakur vs Union of India (2007), the Court issued a judicial injunction regarding the allocation of a 27% quota for Other Backward Community (OBC) candidates in professional colleges.
• More recently, in Rakesh Vaishnav vs Union of India (2021), the Supreme Court's stay order on three controversial farm laws effectively prevented their enforcement.
  • This intervention eventually led to the government's withdrawal of the laws amidst widespread farmer protests.
• These cases demonstrate the vital role of the judiciary in safeguarding fundamental rights and democratic principles.
• As legislative malice becomes more prevalent, judicial scrutiny must evolve to ensure that laws do not perpetuate discrimination or undermine constitutional values.

Conclusion

To protect constitutional principles and democratic values, judicial review must be prompt, vigorous, and unambiguous when confronted with divisive or unconstitutional statutes. The Supreme Court should learn from its past decisions and recognize the political impact of its actions, particularly during critical moments. Delayed adjudication can render constitutional review ineffective, making time-sensitive intervention essential in addressing malicious and unconstitutional legislation.

Why is it in the News?

Recently, the Supreme Court (SC), in the judgment of Delhi Metro Rail Corporation Ltd (DMRC) vs Delhi Airport Metro Express Pvt Ltd (DAMEPL), set aside the arbitral award by exercising its curative jurisdiction.

Context:

• The Supreme Court of India holds a multifaceted role, serving as the apex court of appeal, a federal court, and an advisory body.
• One of its significant powers is the Curative Jurisdiction, established in 2002, which empowers the Court to rectify its judgments even after they have become final.
• However, the utilization of this jurisdiction has triggered discussions concerning its implications for judicial stability and the Supreme Court's role in shaping legal precedents.

What is the DMRC vs DAMEPL Case?

• The case dates back to 2008 when the DMRC entered into a PPP with the Delhi Airport Metro Express Private Limited (DAMEPL), a consortium led by Reliance Infrastructure Ltd, for the Delhi Airport Metro Express project.
  • However, disputes arose between the two parties, leading to the termination of the agreement by DAMEPL in 2013.
• In 2017, an arbitration tribunal ruled in favor of DAMEPL and ordered DMRC to pay nearly Rs 8,000 crore.
  • DMRC challenged this ruling in the Delhi High Court, which overturned the arbitral award in 2019.
  • DAMEPL then appealed to the Supreme Court, which in September 2021 reversed the High Court's decision and upheld the arbitral award.
• However, in a recent judgment, the Supreme Court has now ruled in favor of DMRC, stating that there was a "fundamental error" in its previous judgment.

Significance of the Supreme Court’s Decision:

• Firstly, it underscores the importance of curative petitions in correcting grave injustices in legal judgments.
  • Curative petitions are sparingly used and are only permitted on narrow, procedural grounds.
  • The Supreme Court's decision to grant relief to DMRC highlights the court's commitment to rendering justice in its true sense.
• Secondly, the decision has implications for PPPs in infrastructure projects.
  • PPPs play a crucial role in infrastructure development, but disputes between public and private entities can arise, leading to legal battles.
  • The Supreme Court's decision provides clarity on the legal framework governing PPPs and sets a precedent for future disputes in similar projects.
• Lastly, the decision has implications for investor confidence.
  • The Supreme Court's exercise of curative jurisdiction in this case, almost two and a half years after its final verdict, demonstrates the court's willingness to correct errors and ensure justice.
  • This is likely to boost investor confidence in India's legal system and encourage investment in infrastructure projects.

Difference Between a Curative Petition and Curative Jurisdiction:

Curative Petition:

• A curative petition is a specific legal remedy available within the framework of curative jurisdiction.
• It is a petition filed by a party to the case that has exhausted all other legal remedies and seeks the correction of a judgment that may have resulted from a violation of principles of natural justice or a gross miscarriage of justice.
• The grounds for filing a curative petition typically include the discovery of new evidence or legal errors that were not apparent earlier.
• Curative petitions are relatively rare and are considered as a last resort to correct errors in judgment.

Curative Jurisdiction:

• Curative jurisdiction refers to the broader authority of the Supreme Court to review and rectify its judgments to prevent gross miscarriages of justice.
• It is a power vested in the Supreme Court to ensure that fundamental principles of justice and fairness are upheld, even after a judgment has become final.
• Curative jurisdiction allows the Supreme Court to revisit its decisions if it perceives a need to prevent manifest injustice or correct egregious errors that may have escaped earlier notice.
• While curative petitions are one mechanism through which curative jurisdiction is exercised, the Supreme Court may also suo motu invoke curative jurisdiction in exceptional cases without a formal petition being filed.

Impact and Implications of Curative Jurisdiction:

• Impact on Arbitral Awards' Integrity: A central apprehension surrounding curative jurisdiction is its potential to affect the integrity of arbitral awards.
  • Arbitration relies on the conclusiveness and enforceability of awards for its efficacy.
  • When the Court intervenes in arbitral decisions, particularly amid concerns of judicial overreach, it risks undermining arbitration's core principles, such as party autonomy and swift dispute resolution.
• Balancing Judicial Consistency and Flexibility: The dichotomy between judicial consistency and flexibility emerges concerning curative jurisdiction.
  • While consistent legal interpretation fosters stability and predictability, it may stifle innovation. Conversely, excessive flexibility can breed uncertainty, eroding public trust in the judiciary.
• Examining the Scope of Judicial Review: Curative jurisdiction prompts queries about the extent of judicial review and its boundaries.
  • While the Court's role as the ultimate legal interpreter is clear, intervening in its judgments without impinging on legislative or executive domains requires meticulous consideration.
• Implications for Legal Precedents: The significance of Supreme Court judgments in maintaining legal coherence is undeniable.
  • However, curative jurisdiction may disrupt established precedents, casting doubt on the binding nature of judicial decisions.
  • The Court must exercise judiciousness to rectify errors without compromising the legal framework's integrity.
• Public Perception and Judicial Trust: The Court's credibility hinges on its impartiality and integrity in dispensing justice.
  • Excessive or arbitrary curative interventions may undermine public confidence in the judiciary, diminishing its authority as a legal arbiter.
  • The Court must exercise curative powers prudently to maintain public trust in the judiciary.

Critical Analysis of Judicial Instability:

• Challenging Legal Certainty: Legal certainty, a cornerstone of the rule of law, demands consistency and predictability in legal outcomes.
  • The use of curative jurisdiction, particularly in overturning final judgments, jeopardizes this certainty by casting doubt on the conclusiveness and enforceability of judicial decisions.
  • Such uncertainty undermines parties' confidence in the stability of the legal framework, fostering confusion and mistrust in the judicial process.
• Diminishing Judicial Authority: Judicial stability is intrinsic to the authority and credibility of the judiciary.
  • When the Supreme Court reverses its own judgments through curative measures, it risks appearing indecisive and inconsistent, eroding its status as the ultimate arbiter of the law.
  • This erosion of authority undermines public trust in the judiciary, fostering skepticism about the fairness and impartiality of judicial proceedings.
• Disrupting Legal Precedent: The stability of legal precedent is vital for maintaining coherence and consistency in the legal system.
  • However, the exercise of curative jurisdiction introduces the potential for disrupting established precedents and fostering inconsistency in judicial rulings.
  • This undermines the reliability of legal principles, creating confusion among legal practitioners, litigants, and lower courts.
  • Moreover, frequent reversals of judgments hinder the development of clear and consistent legal doctrines, impeding the evolution of the law.
• Risk of Judicial Overreach: Judicial stability acts as a safeguard against judicial overreach, ensuring that the judiciary respects its constitutional limits and upholds the separation of powers.
  • However, the use of curative jurisdiction raises concerns about the Court's propensity to exceed its authority and intrude into the domains of the legislative and executive branches.
  • By revisiting and overturning its own judgments, the Court risks overstepping its role and undermining the principles of checks and balances inherent in a democratic system.

Ways Forward for Balancing Judicial Oversight Stability:

• Fostering Judicial Accountability: Upholding judicial oversight, including the use of curative jurisdiction, is vital for ensuring judges are accountable and adhere to legal standards.
  • It offers a mechanism to rectify errors and address any judicial misconduct.
  • However, excessive oversight risks compromising judicial independence and impartiality, undercutting the judiciary's ability to fairly adjudicate disputes.
• Preserving Legal Stability: Legal stability is crucial for fostering predictability and confidence in the legal system.
  • By upholding established precedents and minimizing disruptions to settled legal principles, the judiciary promotes legal stability.
  • Nevertheless, the exercise of curative jurisdiction introduces uncertainty by allowing the Court to revisit and potentially reverse its judgments, challenging the stability of legal doctrine and the reliability of judicial decisions.
• Respecting the Separation of Powers: Striking a balance between judicial oversight and stability requires respecting the separation of powers and acknowledging the distinct roles of the judiciary, legislature, and executive.
  • While the judiciary plays a critical role in interpreting and applying the law, it must exercise restraint to avoid intruding into the domains of other branches of government.
  • The use of curative jurisdiction should be guided by principles of judicial deference and deference to legislative intent, particularly in matters where judicial intervention could undermine democratic processes or policy decisions.

Conclusion

The Supreme Court's Curative Jurisdiction is a potent mechanism for rectifying judicial mistakes, yet it presents hurdles to judicial stability and coherence. The DMRC vs DAMEPL case highlights the necessity for a balanced approach in reconciling judicial oversight with legal predictability. Ultimately, as the ultimate arbiter of the law, the Court must carefully wield its curative authority to uphold public trust in the legal system's integrity.

Why is it in the News?

President Draupadi Murmu on Sunday called for the creation of an all-India judicial service to recruit judges, saying this will help make the judiciary diverse by increasing representation from marginalised social groups.

News Summary:

• President Draupadi Murmu in her inaugural address, advocates for the establishment of an all-India judicial service during the Supreme Court’s Constitution Day celebrations on 26th Nov.
• November 26th is observed as Constitution Day to commemorate the adoption of the Constitution of India by the Constituent Assembly in 1949.
• The creation of an all-India judicial service is proposed to diversify the judiciary, increasing representation from marginalized social groups.
• She also discusses gender and caste representation, emphasizing the need for accessible justice and suggested a merit-based, competitive, and transparent process for recruiting judges from varied backgrounds.
• The President envisions an all-India judicial service selecting talented individuals from across the country, providing opportunities to less-represented social groups.
• She calls for removing colonial remnants from all domains as part of India's continued democratization.
• She highlights India's democratic strides post-independence, celebrating diverse leadership across genders and socially disadvantaged groups.

About All-India Judicial Service:

• The concept of the All-India Judicial Service was initially introduced in the 14th Report of the Law Commission of India in 1958.
• This service envisions the central recruitment of district judges through an all-India examination, with subsequent allocation to each state, mirroring the organizational structure of other All-India Services such as IAS and IPS.
• The primary objective is to establish a transparent and efficient recruitment method, aiming to attract the finest legal talent in India.
• The idea was again proposed in the Law Commission Report of 1978, which discussed delays and arrears of cases in the lower courts.
• In 2006, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in its 15th Report backed the idea of a pan-Indian judicial service and also prepared a draft Bill.
• Currently, the appointment of district judges is carried out by the state governor based on the recommendations of the chief justice of the respective state's high court.

What is the procedure to set up an All-India Service?

• The 42nd Constitutional Amendment (1976) brought about modifications to Article 312(1), granting the Parliament the authority to legislate for the establishment of one or more All-India Services.
• Following this, as per Article 312(1) of the Constitution, the Rajya Sabha must pass a resolution with the support of at least two-thirds of its members present and voting.
• Subsequently, Parliament can amend Article 233 and Article 234 by a simple majority to institute an All-India Judicial Service (AIJS).
• The recruitment procedures and terms for individuals appointed to All India services are subject to regulation by Parliament through the enactment of the All India Service Act, 1951.
• Importantly, this process does not necessitate a constitutional amendment under Article 368.

Arguments Setting of the All-India Judicial Service (AIJS):

• Enhanced Judicial Efficiency: Implementation of the All-India Judicial Service (AIJS) ensures an efficient subordinate judiciary by addressing issues such as different pay scales, faster vacancy fulfillment, and standardized training across states.
• Vacancies and Pendency of Cases: As of July 2023, the subordinate judiciary's working strength was 19,858, with 5,000 posts remaining vacant against the sanctioned strength of 25,246.
• Over 85% of the 5 crore pending cases, especially in district courts, contribute to a significant backlog, with more than one lakh cases pending for over 30 years.
• Balancing Judges To Population Ratio: The AIJS aligns with a Law Commission report (1987) suggesting a judge-to-population ratio of 50 judges per million people, a considerable increase from the then-existing 10.50 judges.
• Despite progress, the current figure of 20 judges in terms of sanctioned strength remains comparatively lower than the U.S. (107) and the U.K. (51) ratios.
• Enhanced Representation for Marginalized Sections: The AIJS is advocated by the government as an optimal solution for achieving equitable representation of marginalized and deprived sections of society within the judiciary.
• Addressing Corruption and Nepotism: A bottoms-up approach to recruitment through the AIJS is seen as a strategy to tackle issues like corruption and nepotism prevalent in the lower judiciary.
• Absence of career growth: Currently, less than 25% of judicial officers have the chance to ascend to High Court judgeship, primarily reaching the rank of district judges towards the end of their careers.
• The remaining 75% quota is allocated for High Court judge recruitment from the Bar Association of India.
• The establishment of an All-India Judicial Service (AIJS) would ensure a richer talent pool with a younger age profile for selection by High Courts and the Supreme Court, offering a remedy to the issue of limited career growth.

Criticism Against Setting up an All-India Judicial Service:

• Centralization and State Power Concerns: The adoption of a centralized recruitment process is criticized as infringing on federalism, and encroaching on the constitutional powers granted to states.
• Language Barrier Challenge: An argument against AIJS is that judges recruited through this process may lack proficiency in the local languages of the States where they are posted.
• Given that civil and criminal court proceedings are conducted in languages prescribed by respective State governments, this language barrier is a significant concern.
• Impact on Local Reservations: Centralized testing may potentially dilute reservations based on caste, rural backgrounds, or linguistic minorities, undermining localized efforts to ensure representation.
• Conflict with Separation of Powers: Opposition stems from constitutional principles of the separation of powers.
• Centralized testing raises concerns about the executive gaining influence in the appointment of district judges, potentially diminishing the role of High Courts.
• Limited Impact on Structural Issues: Critics argue that the creation of the All-India Judicial Service (AIJS) fails to address inherent structural challenges in the lower judiciary.
• Uniformity in pay scales, as addressed by the Supreme Court in the 1993 All India Judges Association case, is seen as a more effective approach.
• Alternative Solutions Over Central Exam: Experts contend that addressing structural issues involves increasing pay universally and ensuring that a portion of High Court judges are selected from the lower judiciary.
• This approach is seen as more effective than relying solely on a central exam to attract quality talent.

Supreme Court’s Stand:

• In 1992, the Supreme Court (SC) issued a directive in the case of All India Judges’ Association v. The Union of India, instructing the Centre to establish an All India Judicial Service (AIJS).
• However, during a review of this judgment in 1993, the court granted the Centre the freedom to take the lead on the AIJS matter.
• In 2017, the SC independently addressed concerns about the appointment of district judges, suggesting the exploration of a Central Selection Mechanism.
• Senior advocate Arvind Datar, acting as amicus curiae (friend of the court), circulated a concept note to all states proposing a common examination instead of separate state exams.
• The merit list from this common examination would guide High Courts in conducting interviews and appointing judges.
• Datar emphasized that this approach would not alter the constitutional framework or diminish the authority of states or High Courts.

Way Forward

Despite the prolonged debate spanning decades, numerous States and High Courts have expressed reservations regarding the creation of an All-India Judicial Service (AIJS). Therefore, it is imperative to foster a comprehensive consensus among the Centre, States, and the Judiciary before the Parliament proceeds with establishing the AIJS. In the meantime, efforts should be concentrated on implementing more targeted and immediate solutions to effectively address the challenges faced by the Indian judiciary.