03 Judiciary

Judicial Activism

Intro/conclusion

• constitutional intervention to protect constitutional values, but becomes overreach when court crosses from review to deciding policy
• symptom of institutional failure elsewhere

Why important?

• L/E inaction $\to$ consti vaccum $\to$ judicial intervention
  • eg. Vishaka 1997
• rights protection, esp for politically weak interests
• scrutiny of executive action eg. Coal allocation, electoral bonds
• social transformation
  • NALSA $\to$ transgender rights
  • Shayara Bano $\to$ instant triple talaq
• long pending reforms
  • Prakash Singh case: SC noted that police reform recommendations existed since years but was not acted upon

Case	Dimension
Vishaka, 1997	guidelines in legislative vacuum
Vineet Narain 1997	investigative accountability
DK Basu 1997	arrest, custodial safeguards
Prakash Singh 2006	police reforms
MC Mehta	Environmental remedies
PUCL	voter’s right to know candidate info
NALSA	constitutional right of transgender identity
Puttaswamy 2017	privacy as FR
Navtej Johar 2018	Decriminalization of homosexuality

Why increasing?

• executive dominance + weak legislative scrutiny
• legislative vacuum
• FR consciousness
• PIL expansion
• Weak institutional check on executive

When does activism become Judicial Overreach

• court creating detailed policies
• court enters domain requiring technical expertise
• court enforces continuous monitoring
• individual judge’s values begin determining public policy
• SoP dilution
• open ended remedial power in art 142

Why threaten democracy

• courts receive adversarial evidence, not broad stakeholder consultation
• citizens look towards judiciary rather than legislative
• precedent inflation, policy uncertainty
• bypass elected mandate
• institutional overload

Sustainable activism

Judicial

• restraint in policy / economic matters
• principled use of Art 142
• time bound, narrow guidelines
• avoid micromanagement

Legislature

• respond aptly to judicially identified legislative gaps
• comprehensive legislation formulation
• stronger parliamentary scrutiny of legislations

Executive

• implement judgements faithfully
• reduce governance vacuum
• institutionalize reforms promptly, without waiting for judicial intervention

PIL

• relaxing traditional locus standi, secures justice for marginalized
• record 570 new PIL in 2025

Why more PIL?

• tech democratization: e-Filing, SUVAS AI Translation
• executive inertia tackled by courts eg. Oct 2024 SC Judgement striking down caste based segregation in state prison manuals
• NGO aggressively utilize PIL for socioeconomic reform
• expansive article 21

Systematic limits: capacity constraints (3.5k PIL backlog), poor grassroot enforcement, curbing publicity petitions, ending perpetual oversight (MC Mehta 39yr closure), delegating to experts

+ve

• access to justice
• representation of marginalized
• env, public health, human rights enforcement
• pathway for broader reforms

-ve

• publicity interest litigation
• political / competitive PIL
• judicialization of policy
• frivolous litigation
• court’s docket consumed by administrative grievances

Collegium system

Evolution

• through judgements of SC
• CJI + 4 seniormost SC judges recommend appointment & transfer of judges
• HC: CJ + 2 seniormost judges

Cases

• First Judge Case: SP Gupta 1981: SC $\to$ consultation == exchange of views, not concurrence
• Second Judge Case: SC AoR Association 1993: consultation == concurrence $\therefore$ CJI advice is binding & must consult 2 seniormost colleagues
• Third Judge Case 1998: CJI consultation requires plurality of judges
  • $\therefore$ consult 4, and at least 3 should be in favor
• NJAC Act 2014: brought to replace collegium system, but a 5 bench constitutional bench declared it unconstitutional

Criticism

• lack of transparency
• judicial vacancies $⟹$ pendency
• charges of nepotism
  • Law Commission 2009: nepotism & political privilege was rife in working of collegium system
• against system of checks & balances: complete exclusion of executive from judicial appointment
• lack of representation of women
• do not disclose reason for transfer of judge

Steps taken to improve appointment process

• 99th CAA 2014: NJAC; struck down
• Memorandum of Procedure 1999: rules & procedures for appt. of judges to SC & HC, framed by govt+judiciary
• Revised MoP 2015 requested by SC to Govt for transparency, but not adopted

Way forward

• reforming MoP
• expand eligibility criteria, allow open invitation
• inc diversity - women, marginalized
• inc transparency
• Law Commission of India reccos
  • retirement age for HC judge 65, SC 68
  • suitably appoint distinguished jurist and from the bar as prescribed in Art 124(3)

Master of Roster System

What it is

• exclusive authority of CJ to constitute benches & allocate cases
• Prakash Chand 1998: only CJ can decide which judge hears which cases
• HC are independent constitutional bodies, but integrated judiciary structure system allows SC to intervene in rare cases
  • threatens rule of law
  • Art 141: SC’s declared law is binding on all India courts

Way forward

• create formal process
• corrective mentoring rather than punitive removals
• clear guidelines for SC intervention
• strengthen in house mechanisms
• mentorship & training for judges to avoid repeated errors

Conclusion

While SC’s power under 142 allows exceptional corrective steps, such actions must be balanced to avoid undermining HC autonomy.

Expanding Article 21

Tribunals

Quasi judicial institution dealing with resolution of disputes pertaining to admin, taxation, env, securities.

• alt to traditional court system
• swift, cost effective, decentralized resolution of disputes
• added to consti via 42CAA1976 - Part XIV-A: 323A & 323B based on Swaran Singh Committee

Legal think tank DAKSH

cases worth Rs.24T (~7.48% of nominal GDP) were pending across 10 commercial tribunals, handled by only 350 members

Features

• PNJ
• not bound by CPC
• subject expertise of members
• quasi judicial powers
• decisions can be appealed to a higher court after going through appellate authority
• time bound resolution

Provisions

Added under 42CAA1976, Part XIV-A

• 323A: administrative tribunal - parliament
• 323B: tribunals for other matters - parl + state

Issues

• conflict of interest $\because$ govt is often main litigant
• tribunalization of justice
• lack of independence (salary, conditions, term decided by executive)
• overlapping jurisdiction of tribunals eg. Competition appellate tribunal conflict with NCLT
• bypassing jurisdiction of HC, parly resolved in Chandra Kumar 1997
• Administrative: non uniformity in appt process, qualifications, retirement, infra etc
• high pendency
  • 272 Law Commission Report: 44.3K cases pending before CAT
• persisting vacancies

Tribunals Rules 2020

• applies to 19 tribunals; not Foreign tribunal
• appt by CG on recco of Search cum selection Committee
  • CJI / nominated judge
  • President / chairperson of concerned tribunal
  • 2 Govt secretaries from concerned ministry / dept
• SCSC also has power to recommend removal of member & conduct inquiry into misconduct allegation
• qualification: judicial or legal experience
• fixed 4 year term, no re-appointment

Tribunal Reforms Act 2026

• will replace 2021 law

National Tribunals Commission

• 5 members
  • chairperson: former SC judge / HC CJ
  • 2 judicial members: forger HC judge / CJ
  • 2 technical members: specialized sectors - 25+ YoE
• Judicial dominance: compliance with constitutional principles & SoP
• functions: appt. tribunal members, evaluate perf, investigate complaint against chairpersons, establish National Tribunal Data Grid

Concerns

• exclusion of NCLT
• retained executive powers (search cum selection committee, salaries, service conditions)

Better functioning of tribunals

• National Tribunal Commission recommended by 74th Report of Parliamentary Standing Committee on Law to regulate issues rel. tribunals eg. selection process, eligibility criteria
  • now created under Tribunals Reforms Act 2026bb
• Timely appointments
• independence from political interference
• rationalization of tribunals for streamlining functioning

Constitutional morality

Intro

• refers to principles & values that underline constitution & guide actions of govt & citizens
• encompasses the idea that constitution is beyond just legal document; it is moral document reflecting shared values & aspiration of society
• Geogre Grote

Elements

• DPL
• liberty
• freedom of expression
• rule of law
• social justice
• right to equality

Evolution

• eng historian George Grote
• Dr. BR Ambedkar: CM the soln to existing inequality in society
  • meant respect among parties in a republic for constitutional democracy as preferred form of governance and administration
  • used it to justify inclusion of administrative details in constitution itself
• KBC1973
• SP Gupta / First Judges Case 1982: constitutional violation a serious breach of constitutional morality
• NCT of Delhi vs UoI 2018: CM implies strict & complete adherence to constitutional principles as enshrined in various segments of the documentation

Significance

• protect rights of citizen
• promote democratic ideals
• bring +ve change in soc
• create inclusive society

Issues

• lack of clarity, undefined
• judicial overreach
• subjectivity, allows justification of broad actions
• lack of popular legitimacy and hence imposed
• selective application

Steps to guide towards CM

• provide holistic definition
• create objective standards for evolving into holistic doctrine
• balanced application, in consistency with constitution
• active citizenry
• strong oversight institutions

Alternative Dispute Resolution

Intro / Conclusion

• speedier justice, cost effective, bypasses long litigation process
• conducted privately & confidentially unlike open court trials
• amicable settlements, crucial for maintaining business & personal relationship

Types

• Arbitration
  • Arbitration & Conciliation Act 1996 (amended: 2015, 19, 21)
  • arbitrator award enforceable akin to court decree
  • limited scope for appeal
  • disad: high cost for professional arbitrator, limited right of appeal, risk of stronger party imposing arbitration clauses on weaker parties
• Mediation
  • non binding unless settlement agreement
  • no legal authority to enforce outcome
  • useful when parties wish to preserve business / personal relationships
  • quick, cost effective, flexible, maintains goodwill, creative soln beyond legal remedy
  • mediator can only facilitate, not impose
• Conciliation
  • Part III of Arbitration and Conciliation Act 1996
  • settlement binding only if parties accept it
  • flexible, less formal, confidential, cost effective, quicker, amicable
  • non binding, depends on parties’ willingness to cooperate

Feature	Arbitration	Conciliation	Mediation
Neutral 3rd Party	Arbitrator	Conciliator	Mediator
Prior agreement?	Yes	No	No
Nature of process	Adversarial	Non-adversarial	Non-adversarial
Decision	Binding award	Non-binding	Non-binding
Appeal	Limited	None	Limited

ADR Advantage

• clear backlog, reduce judicial burden
• quick resolution
• cost effective, with amicable settlement
• flexibility to parties to decide procedures, rules, experts
• processes like arbitration & mediation have intl acceptance, recognized under treaties

ADR Disadvantage

• limited scope for complex issues requiring judicial interpretation
• mediation, conciliation are non binding
• stronger parties dominate weaker ones
• enforcement challenge in cross border disputes
• hiring senior arbitrators can get expensive

ADR limitations

• lack of awareness / education, esp rural
• trust deficit, perception issues: seen as less authoritative, impartial
• inconsistent quality & standards
• limited institutional support
• enforceability & compliance issues
• power imbalance, coercion risks
• cultural & social barriers - hindering open communication
• judicial interference & delays

NOTE

Vital part of justice system for timely, cost effective resolution outside the courtroom. ADR can become answer to judicial challenges.

Diversity/Inclusiveness

Status

• 2018-24: 78% judges appointed to HC were UC; 5% ST/SC each
• Aug 2024: Women only 14% of HC judge
  • only 1 sitting woman judge in SC
• <5% of judges in higher judiciary are religious minority

Why diversity needed

• enhanced public trust
  • reflect india’s social reality
  • eg. positive response to BR Gavai’s elevation
• inclusivity in interpretation through various social contexts
  • eg. women judges bring out greater sensitivity in gender related cases
• correcting historical under representation
  • india hasn’t had a female CJI
• democratization of the Bar
• advancing social justice

Challenges

• opaque collegium system
  • delays / rejections of female candidates since 2020 w/o clear reasons
• old boys club mentality: established male circles
• lack of formal reservation
• geographical barriers: centralization of legal practices around Delhi
• structural barriers for women: workplace infra, support systems

Way ahead

• revive NJAC for transparency and mandate for inclusivitiy
• establish regional branches of SC to geographically decentralize justice
• institutionalize diversity metrics
• time bound appointments
• mentorship programmes for first generation / marginalized lawyers

Infra

Status

• 27% courtrooms in subordinate judiciary have computer on judges dias
• 22% trial court complex do not have toilet facilities for women
• 620 court complexes operating from rented premises
• 54% have basic medical facilities
• 25K judicial officers but only 22k court halls
• 67% don’t have waiting area for litigants

Why infra lag

• lack of funds
  • states often contribute less funds for centrally sponsored schemes for development of judicial infra
• underutilization of funds meant for specific projects
• poor budgetary allocations, much under 1% of GDP, low prioritization
• population / case load growth
• rural / tribal / remote areas commercially less attractive for infra development
• weak project management capacity

Solution

• National Judicial Infra Corporation, proposed by CJI
• states govt to contribute their fair share under the schemes
• focus on both digital and physical infra
• gender sensitive infra
• National minimum standards for judicial infra planning
• district level infra mapping based on case load & judge strength
• green courts

Intro/conclusion

• poor infra disproportionately affects rural litigants, women, elderly, PwD, EWS etc

Pendency

• acute at lower judiciary, where most cases filed & shortage severe
• 2010 $\to$ 2020: steady growth of pendency: 2.8% annually
• tribunals, special courts also witness high pendency

Court	Pendency
SC	92K
HC	6.39M
Subordinate	47M

Why high pendency

• shortage of judge
• lack of infra
• complexity of cases, domain expertise needed
• procedural delays eg. inability to locate witness
• weak enforcement of court orders
• inc legal awareness $⟹$ more cases, PIL

Impact on justice

• delays in administration of justice
• -ve impact on justice quality due to paucity of time
• loss of faith in legal system
• financial burden on litigants
• injustice to victims, witness
• -ve impact on economy eg. business delays

Steps taken

• virtual court
• e-Courts Portal to speed up data sharing, interaction b/w stakeholders
• e-Filing
• e-Payment of court fees, fines
• ICJS
• Fast track courts
• ADR

Future possible steps

• inc judges count
  • Law Commission Report 1987: 50 judges per Million people
    • reiterated by SC 2001 & Standing Committee on Home Affairs 2002
• Expand ADR
• streamline legal process
• strengthen court order enforcement

Tech in judiciary

Intro/conclusions

• Tech has significantly improved access, transparency, procedural efficiency and documentation
• Tech innovations have improved transparency, but not yet translated into faster justice
• Bottleneck is the institutional capacity, not merely digitization

Current limitations

• digitization hasn’t eliminated structural delays
  • 5.46Cr cases pending across SC, HC, Sub-courts (Feb 2026)
• digital divide: rural litigants, elderly, PwD; Connectivity, device, literacy barriers
• fragmented platforms & data silos
  • e-courts, police, prisons, prosecution, forensics all reside on separate platforms that don’t interoperate
• quality of digitization
  • scanned legacy records aren’t directly searchable
  • OCR errors in indic languages
• connectivity, audio, video quality limitations, esp in district courts
• cybersecurity / data sovereignty

Tech innovations

Name	Detail
e-Courts Mission Mode Project	end to end digitization
National Judicial Data Grid (NJDG)	real time judicial data access, tracks cases
e-Filing	reduces physical filing, allows geographically distant litigants
Virtual courts	traffic/minor offences, reduces physical court burden
Video Conferencing	in 3200 courts, 1200 jails
2000 e-Sewa Kendra	Digital inclusion bridge for citizens lacking digital access
Interoperable Criminal Justice System (ICJS)	police - courts - prison - forensics - prosecution data interoperability
LegRAA	AI assisted legal research / document analysis
Live streaming of proceedings	tranparency
Su-Sahayak / VANI	AI enabled interface on SC digital ecosystem
JustIS app	management tool for judges to organize & monitor judicial business
PIB reference: link

How effective has it been?

• **transparency**: NJDG - public visibility of pendency & disposal
• access: e filing reduced geographical barriers
• continuity: COVID 19, courts functioned online
• Admin efficiency: digital case mgmt, dashboards
• evidence management: digitized record facilitate retrieval
• cost/time: fewer physical appearances

Limitations

Tech is efficiency multiplier, but not substitute for judge, court staff, investigation or procedural reforms.

• doesn’t resolve vacancies, adjournment culture, defective investigation, weak prosecution, excessive litigation, infra deficit
• better info flow $\ne$ faster adjudication

What can still be improved

• digitized courts $\to$ integrated intelligent judicial platform
• complete ICJS integration for interoperability at all stages of a case
• AI governance w/ human in loop
• judicial data protection architecture, access controls
• NLP/OCR/translation for vernacular
• Digital inclusion: strengthen eSewa kendra, esp in rural / poor areas
• accessibility by design: applications should be built ground up for use with screen readers, captions, accessible formats
• use NJDG for ageing cases, bottleneck stages etc
• cyber resilience - regular pentesting, disaster recovery drills
• capacity building for judges (digital training)
• improved outcome metrics
  • don’t count number of computer or portals
  • track disposal time, cost to litigant as performance metrics

AI in adjudication - concerns

AI should augment judicial intelligence, not replace judicial reasoning.

• SC has stressed absolute control over AI app in adjudication & zero tollerance for hallucinated precedent
• AI appropriate for:
  • research
  • translation, transcription
  • document classification
  • scheduling
  • admin analytics
• AI inappropriate for
  • autonomous determination of guilt
  • credibility
  • sentencing
  • constitutional interpretation

Tech & Judiciary

Gains

• transparent listing data: reduced info asymmetry
• digital trail: administrative accountability
• open access to judgement: democratization of legal knowledge

Risks

• algorithmic opacity - black box justice
• centralized database - surveillance / privacy concerns
• vendor dependence - tech sovereignty issue
• AI bias, threatens equality before law
• automated systems reproduce existing institutional biases at scale

Other issues

• under trials
  • 2020 NCRB: 488511 inmates, 76% under trials