Shillong Times Controversy

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Controversy:
  • Government amended rules to exclude protocol services and guest house facilities from being applicable to the retired judges and their spouses and children.
  • The matter was taken up by the high court on its own and further the high court had set aside the amendment.
  • The Shillong Times has published an article titled “When judges judge for themselves” in pursuant to above order.
  • Meghalaya High Court’s held The Shillong Times editor Patricia Mukhim and publisher Shobha Chaudhuri guilty of contempt and fined them Rs 2 lakh each.
  • The Supreme Court has put on hold the Meghalaya High Court’s order.
Contempt of Court
  • Contempt of court refers to actions which defy a court’s authority, cast disrespect on a court, or impede the ability of the court to perform its function.
  • The Contempt of Court provisions in India are enshrined under Articles 129 and 215 of the constitution for Supreme Court and High Court respectively and Contempt of Courts Act, 1971.
Civil Contempt is defined as willful disobedience to any judgment, decree, direction, order, writ or other processes of a court or wilful breach of an undertaking given to a court.
Criminal Contempt is defined as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act which:
  • Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court, or
  • Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or
  • Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
Section 20 of the Contempt of Courts Act of 1971 limits the period for initiating contempt proceedings is of one year from the date on which the contempt is alleged to have been committed.

Appointment of Judges

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  • The Constituent Assembly adopted a consultative process of appointing judges to ensure that judges remain insulated from political influence.
  • It avoided legislative interference and also the undemocratic provision of a veto to the Chief Justice.
  • Instead, it vested in the President the power to both make appointments and transfer judges between high courts.
  • The President (to act on the advice of the council of ministers) was however required to consult certain authorities such as the CJI or chief justice of the high court appropriately.
  • ‘Consultation’ – The Supreme Court earlier ruled that the word “consultation” could not be interpreted to mean “concurrence”.
  • Accordingly, the CJI’s opinion was not binding on the executive.
  • Nevertheless, the executive could depart from the opinion only in exceptional circumstances and any such decision could be subject to judicial review.
  • The system was thus fairly balanced and in the First Judges Case, 1981 the court once again endorsed this interpretation.
  • Second Judges Case – In the famous Second Judges Case, 1993 the court, however, overruled its earlier decisions.
  • It now held that “consultation” meant “concurrence”, and that the CJI’s view enjoys primacy.
  • This is with the rationale that CJI could be best equipped to know and assess the “worth” of candidates.
  • But, the CJI was to formulate the opinion only through a body of senior judges that the court described as the ‘collegium’.
  • In the Third Judges Case, 1998 the court clarified that the collegium would comprise CJI and four senior-most colleagues, in appointments to the Supreme Court.
  • And, the CJI and two senior-most colleagues in the case of appointments to the high courts.
  • Additionally, for HCs, the collegium would consult other senior judges in the SC who had previously served in the HC concerned.
  • On whether these views of the consultee-judges are binding on the collegium or not, the judgments are silent.
  • NJAC – The government, through 99th constitutional amendment, sought to replace the collegium with the National Judicial Appointments Commission. The Supreme Court, however, struck NJAC down.
  • The court’s rationale was that the NJAC law gave politicians an equal say in judicial appointments to constitutional courts.
  • In what might now be called the Fourth Judges Case (2015), the court upheld the primacy of the collegium.
  • More importantly, it declared collegium as part of the Constitution’s basic structure.
  • And so its power could not be removed even through a constitutional amendment.
  • But given the criticisms against the system, the judgment promised to consider appropriate measures to improve the collegium system.

Arbitration and Conciliation (Amendment) Bill, 2018

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The Lok Sabha has passed Arbitration and Conciliation (Amendment) Bill, 2018 to help India become hub for domestic and global arbitration for settling commercial disputes. It seeks to amend Arbitration and Conciliation Act, 1996 which contains provisions to deal with domestic and international arbitration and defines law for conducting conciliation proceedings.

 

ias4sure.com - Arbitration and Conciliation (Amendment) Bill, 2018

Salient features of Bill

  • Arbitration Council of India (ACI): 
    • The Bill establishes ACI as an independent body for promotion of arbitration, mediation, conciliation and other alternative dispute redressal mechanisms.
    • It will frame policies for grading arbitral institutions and accrediting arbitrators, make policies for establishment, operation and maintenance of uniform professional standards for all alternate dispute redressal matters and maintain depository of arbitral judgments (awards) made in India and abroad.
  • Composition of ACI: 
    • It will consist of Chairperson who is either Judge of Supreme Court or Judge of High Court or Chief Justice of High Court or eminent person with expert knowledge in conduct of arbitration.
    • Its other members will include eminent arbitration practitioner, academician with experience in arbitration and government appointees.
  • Appointment of arbitrators: 
    • The Bill allows Supreme Court and High Courts to designate arbitral institutions, which parties can approach for appointment of arbitrators.
    • For international commercial arbitration, appointments will be made by institution designated by Supreme Court.
    • The institution designated by concerned High Court will make appointments for domestic arbitration appointments.
    • In case there are no arbitral institutions available, then concerned High Court Chief Justice can maintain panel of arbitrators to perform functions of arbitral institutions.
    • The application for appointment of arbitrator is required to be disposed of within 30 days.
  • Relaxation of time limits: 
    • The Bill proposed to remove time restriction for international commercial arbitrations.
    • Earlier under the parent Act, arbitral tribunals were required to make their award within period of 12 months for all arbitration proceedings.
  • Completion of written submissions: 
    • The Bill requires written claim and defence to claim in arbitration proceeding should be completed within six months of appointment of arbitrators.
    • Currently, there is no time limit to file written submissions before an arbitral tribunal.
  • Confidentiality of proceedings: 
    • The Bill provides that all details of arbitration proceedings will be kept confidential except for the details of the arbitral award in certain circumstances. 
    • Disclosure of the arbitral award will only be made where it is necessary for implementing or enforcing the award.

District Courts : Revamp needed

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Supreme Court wants district courts across the country to make some improvements like
  • Separate washrooms for transgenders, ‘court managers’ with an MBA degree,
  • Braille and colour-coded signage
  • Crowd management arrangements
  • Crèche facility and even
  • A front desk for litigants to find their way
The order came on a petition filed way back in 1989 by the All India Judges Association for better facilities to help do their job. The court observed that “without a robust infrastructure, the judiciary would not be able to function at its optimum level.”
ias4sure.com - District Courts Revamp needed
 
New committee:
  • The court ordered the State Chief Secretaries to constitute a committee of which the Secretary of the Department of Law should be a member to formulate the development plan for courts.

Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Bill, 2018

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The Act enables creation of commercial divisions in High Courts and commercial courts at district level to adjudicate commercial disputes such as disputes related to contracts for provision of goods and services and construction contracts. The amendment is aimed at improving ease of doing business in India.
ias4sure.com - Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Bill, 2018
 
Key Features of Bill
  • Reduction in pecuniary limits: Under the parent Act, commercial courts and commercial divisions in High courts can decide commercial disputes with value of at least Rs. 1 crore. The Bill reduces this limit to Rs. 3 lakh.
  • Establishment of certain commercial courts: The parent Act, empowers state governments to constitute commercial courts at district judge level, after consulting concerned High Court. It had barred such commercial courts to be constituted in cases where High Court has original jurisdiction to hear commercial cases. The Bill removes this bar and allows states to constitute commercial courts where High Courts have original jurisdiction.
  • Commercial Appellate Courts: The Bills allows state governments to notify commercial appellate courts at the district judge level in areas where High Courts do not have ordinary original civil jurisdiction. These Appellate Courts will hear appeals against order of commercial court below level of district judge.
  • Mediation: It introduces pre-institution mediation process in cases where no urgent, interim relief is contemplated. This aims to provide for opportunity to parties to resolve commercial disputes outside ambit of courts through authorities. This will also help in reinforcing investor’s confidence in the resolution of commercial disputes.
  • Counterclaims not to be transferred: The Bill removes provision of counterclaim in relation to transfer of suits in a commercial dispute of at least Rs. 1 crore in civil court.
 
 
What is the issue related to mediation?
  • Mandatory pre-litigation mediation in commercial disputes has been introduced by the recent Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Ordinance, 2018, which amends the Commercial Courts Act of 2015.
  • This amendment is expected to alter parties’ sense of responsibility in resolving disputes. Mandatory pre-litigation mediation puts the ball in the court of the parties involved, rather than looking at external agencies like courts, and urges them to engage with and resolve disputes.
 
The meaning of mediation
  • Mediation is a process of resolution of disputes by the parties to them. It involves discussion of the conflicts, moving out of the loop of allegations and counter-allegations, and assessing where interests lie in resolving the disputes.
  • Options for settlement are explored and a settlement is worked out through joint evaluation. The process is managed by a neutral person called the mediator, who may evaluate the disputes and weigh in on options for settlement (a variant called conciliation) but has no authority to impose a settlement.
  • The participation of the disputants is voluntary. The terms of settlement, if the parties do settle, are decided by the parties. The discussions are confidential.
 
Background
  • Mediation, and mandatory mediation specifically, is not new in India.
  • The Arbitration and Conciliation Act, 1996, makes a settlement arrived at through conciliation enforceable like a court decree.
  • Under the Code of Civil Procedure, judges can refer cases to mediation.
  • The Micro, Small and Medium Enterprises (MSME) Development Act, 2006, mandates conciliation when disputes arise on payments to MSMEs.
 
The Italian case
  • Italy, which faces a high rate of pendency of cases, has adopted what is referred to as ‘opt out’ mandatory mediation.
  • In 2010 and 2013, it introduced a law for pre-litigation mediation. Attempts to mediate were made mandatory for certain disputes (like partition and joint ownership of property) before a case was filed in court.
 
What lies ahead?
  • Pre-litigation mediation is an important step to improve the ease of doing business
  • The ordinance is an important step in mainstreaming mediation, but it is not enough.
  • Most disputes seek urgent orders for preservation of status quo or restraint orders on filing. With such an application, pre-litigation mediation could effectively be given a go-by.
  • There is a need for a comprehensive policy on mediation, rather than the abbreviated and disconnected steps so far.
  • This policy would encapsulate the process, the role and professional responsibilities of mediators, the rights and obligations of parties in the process, and the outcome of the mediation agreement.
  • When seen in the context of a deliberate and well-considered law, mediation as a process would be more credible to disputants, as has happened in the case of arbitration.