In a significant ruling, the Supreme Court has directed all high courts to establish a special bench and initiate a suo motu case to oversee the prompt resolution of criminal matters involving Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs). The Chief Justice, D Y Chandrachud, led the bench that issued various directives to high courts and trial courts based on a Public Interest Litigation (PIL) filed by Ashwini Upadhyay, advocating for the swift disposal of pending criminal cases against lawmakers.
The Supreme Court acknowledged the challenge of providing uniform guidelines for trial courts to expedite cases against lawmakers. Consequently, it mandated high courts to form special benches, presided over by either the chief justice or a designated bench, to monitor criminal trials involving lawmakers. High courts may request reports from special lower courts regarding the status of such trials. The judgement emphasized that trial courts should not adjourn hearings except for rare and compelling reasons.
Chief Justice Chandrachud also stressed the need for sufficient infrastructure and technological facilities in designated special courts handling cases against lawmakers, placing the responsibility on principal district and sessions judges. The PIL, filed by Ashwani Dubey, not only seeks a life-term ban on convicted politicians but also calls for expedited trials and the establishment of special courts dedicated to handling such cases nationwide.
In a significant development, the Supreme Court refrained from officially legalizing marriage equality in a recent ruling, but emphatically underscored that an individual's right to enter into a union must not be constrained based on their sexual orientation. The five-judge bench issued four separate judgments, primarily diverging on the issue of adoption rights for LGBTQ+ couples.
The judges collectively called upon the government to establish a committee to address the practical challenges faced by same-sex couples, including securing essential documents like ration cards, pension benefits, gratuity, and resolving succession issues. This move reflects a notable step towards acknowledging and addressing the specific concerns of LGBTQ+ individuals.
Earlier, on May 3, the central government had informed the court of its intention to form a committee led by a cabinet secretary. The committee's objective is to explore administrative solutions to the challenges encountered by same-sex couples, while deliberately sidestepping the broader question of marriage equality.
A significant point of contention within the bench was the matter of adoption rights for LGBTQ+ couples. Chief Justice of India, DY Chandrachud, and Justice SK Kaul recognized the right of queer couples to adopt, marking a progressive stance on the issue. In contrast, Justices S Ravindra Bhat, PS Narasimha, and Hima Kohli dissented, differing in their perspective on adoption rights for the LGBTQ+ community. This decision represents a pivotal moment in India's legal landscape, underscoring the ongoing debates and advancements in LGBTQ+ rights within the country.
The Modi government is likely to push the new set of criminal laws in the next session of parliament in Nov/Dec. The country is likely to get new criminal laws, through the three bills that will replace the IPC, CrPC, and the Evidence Act, by the end of this year as the committee tasked with examining it is trying to submit its report before the start of the Winter Session of the Parliament, which usually starts and ends in December, sources said. The Modi government will try to get the bills passed in the parliament after discussion in the Winter Session itself, according to sources.
In the upper house of Parliament, Rajya Sabha Chairman Jagdeep Dhankhar on Friday referred the three proposed laws that will replace the IPC, CrPC and the Evidence Act to the Standing Committee on Home Affairs for examination and asked it to submit its report within three months.
Rajya Sabha BJP MP and former police officer Brij Lal is heading the committee. A meeting of the standing committee has been called on August 24 to discuss the bills. Sources say the meetings will be frequent, in order to expedite the process. Daily meetings might also be considered at a later stage, they said.
The bills namely the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Bill were introduced in the Lok Sabha by Home Minister Amit Shah on August 11. The reforms are touted to be the major achievement for the Modi government to simplify the criminal law procedure in the country.
After the bills are passed, they will replace the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and the Indian Evidence Act respectively. This could be the last major reform in the NDA II Modi government since the country will go into elections early next year.
In picture: Prashant Tewari Editor-in-Chief of Opinion Express with then former Law Minister of India DR Hansraj Bharadwaj
HR Bhardwaj's tenure as the Law Minister holds a significant place in the annals of India's legal and political history while serving as the Law Minister from the early 1990s to 2009, Bhardwaj's vision and determination to reform and update the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC) were noteworthy. However, his pursuit of these reforms was hampered by the lack of political support within the Congress party during that period.
The Indian Penal Code, enacted in 1860 during the British colonial era, and the Code of Criminal Procedure, formulated in 1973, are two of the cornerstones of India's criminal justice system. Over time, societal dynamics, technological advancements, and legal philosophy had undergone substantial changes. Bhardwaj recognized the imperative need to modernize these codes to reflect the contemporary challenges and values of Indian society.
Bhardwaj's commitment to reform stemmed from his understanding that the IPC and CrPC needed to evolve to address the complexities of modern crime, societal norms, and the principles of justice. His vision was to ensure that these laws remained relevant, effective, and equitable for all citizens. He aimed to strike a balance between protecting individual rights and ensuring the swift and efficient dispensation of justice.
During his tenure, Bhardwaj initiated a series of discussions, consultations, and debates to bring together legal experts, scholars, practitioners, and stakeholders to identify areas of reform within the IPC and CrPC. His approach was inclusive, seeking input from diverse perspectives to ensure that any amendments would withstand legal scrutiny and public expectations.
His visionary efforts to set up the timelines for the courts to decide on cases, and women-centric laws, promote Mediation and Arbitration to reduce burden on the active courts, limit the scope of appeals in the constitutional courts, set up mechanisms to evaluate judge's performance, declaration of assets by the judges mandatory to bring transparency in the courts, enhancement of salary and wages to the judges, selection of judges in the high and supreme courts through a consultation process between state government, state high court, supreme court collegium and finally the law ministry at GOI consent to be forwarded to President of India had established the best process to segregate judiciary from the government influence for maintaining the independence of the institution. Bhardwaj faced challenges within his own party, the Indian National Congress. The lack of political support can be attributed to various factors, including the non-majority government, the complex nature of legal reforms, differing ideological priorities within the party, and the broader political landscape of the time.
In the early 2000s, the Congress party was navigating a delicate balance between various factions and interest groups. The focus on economic reforms, social welfare policies, and other pressing matters often overshadowed the urgency of legal reforms. The party's leadership might have perceived IPC and CrPC reforms as less politically rewarding compared to other issues on their agenda.
Moreover, the Indian legal system is deeply entrenched in tradition, and any attempt to overhaul or amend such foundational laws can be met with resistance, skepticism, and concerns about unintended consequences. Bhardwaj's proposals for IPC and CrPC reforms might have faced opposition from those who were comfortable with the existing legal framework, fearing disruptions or dilution of their perceived rights and privileges.
Furthermore, Bhardwaj's tenure coincided with a period of coalition politics in India. The UPA government, led by the Congress party, relied on the support of various regional and ideological allies to maintain its majority in the Parliament. This intricate political web might have made it challenging to build consensus on comprehensive legal reforms, especially given coalition partners' varying viewpoints and priorities.
Despite these challenges, Bhardwaj remained steadfast in his pursuit of reform. He continued to advocate for the modernization of the IPC and CrPC through various forums, speeches, and engagements with legal experts. His passion for reform was evident, and he was often praised for his dedication to the cause of justice. He formulated several expert committees and the recommendations of the experts have been archived in the Law & Justice system wherein the recently proposed amendments by the Modi government have taken references from the past recommendations of HR Bharajwaj’s era. Everything in the new proposal remains the same as recommended in the past except the chapter and sections numbering have been changed.
In hindsight, the lack of support for IPC and CrPC reforms during Bhardwaj's tenure raises important questions about the dynamics of legal and political change in India. It underscores the complexities of aligning political priorities with the broader needs of the justice system and society at large. The episode also sheds light on the delicate balance that policymakers must strike between tradition and progress, between political exigencies and long-term vision.
While HR Bhardwaj's efforts to reform the IPC and CrPC may not have borne fruit during his tenure, his legacy as a visionary advocate for justice and legal modernization endures. Subsequent administrations and legal experts have continued to grapple with the need for comprehensive legal reforms, recognizing the evolving nature of Indian society and the imperatives of an equitable and efficient justice system. He famously quoted – “Give me a majority government, I will turn around the legal system of India” but unfortunately, he never had the occasion to be a law minister in a full majority Congress party government.
In conclusion, HR Bhardwaj's tenure as India's Law Minister stands as a testament to the challenges of enacting legal reforms within a complex political landscape. His vision to update and modernize the Indian Penal Code and the Code of Criminal Procedure was laudable, but the lack of political support within the Congress party during his time hindered the realization of these reforms. Bhardwaj's legacy serves as a reminder of the intricate interplay between legal, political, and societal forces in shaping the course of justice in India.
Of course, Narendra Modi running the two majority governments having strong willpower to change the old bulky criminal justice system must be given the credit to initiate much-needed legal reforms to serve the 1.4 billion people, it is a welcome change but it needs fast adoption by the legal justice system that is operative at the ground. Similarly, the inclusion of technology and AI in the delivery of the justice system is a desperate requirement to tackle the loads that our courts have to carry while dispensing justice.
The new laws are drafted to combat crime against women, .marrying a woman by concealing identity or having intercourse under the false promise of marriage, promotion and employment will attract up to 10-year imprisonment with a bill introduced on Friday proposing a specific provision to deal with these offenses for the first time.
Union Home Minister Amit Shah introduced the Bharatiya Nyaya Sanhita (BNS) Bill, to replace the Indian Penal Code (IPC) of 1860, in Lok Sabha and said a special focus has been given to provisions related to crimes against women.
"Crime against women and many social problems faced by them have been addressed in this bill. For the first time, intercourse with women under the false promise of marriage, employment, promotion and false identity will amount to a crime," he said.
While courts have dealt with cases of women claiming rape on the basis of breach of promise of marriage, there is no specific provision for this in the IPC.
The Modi government has introduced a bill for the complete overhaul of colonial-era Indian criminal laws. The Indian Penal Code, Code of Criminal Procedure and Indian Evidence Act will be replaced by the Bharatiya Nyaya Sanhita.
The Bharatiya Nagarik Suraksha Sanhita will replace the Code of Criminal Procedure and the Bharatiya Sakshya will replace Indian Evidence Act.
A new offence on acts of secession, armed rebellion, subversive activities, separatist activities or endangering the sovereignty or unity and integrity of India has been added in the revised laws.
The new bill prioritises laws for crimes against women and children, murders and "offences against the state". For the first time, community service will be one of the punishments for petty offences.
The fines and punishment for various offences have also been enhanced. It seeks to revamp British-era laws, Union Home Minister Amit Shah told parliament. The Indian Penal Code was enacted in 1860.
In a major judicial shake up, the Gujarat High Court judge who refused to pause Congress MP Rahul Gandhi's conviction in the criminal defamation case over his 'Modi surname' remark is among 23 judges recommended for transfer by the Supreme Court Collegium. Justice Hemant M Prachchhak, in a 123-page verdict in July, had rejected Rahul Gandhi's request, saying no case was made out to stay the conviction.
The Collegium has recommended the transfers "for better administration of justice", according to a document put up on the Supreme Court website last night.
In the past, Justice Prachchhak had been a part of the lawyers' team defending former BJP minister Maya Kodnani, an accused in the 2002 Gujarat riots case
The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Services and Term of Office) Bill, 2023, to come up in Rajya Sabha today, proposes that top Election Commission officers shall be appointed by the President on the recommendation of a panel comprising the Prime Minister, Leader of Opposition in Lok Sabha and a Union Cabinet Minister nominated by the Prime Minister.
This move is likely to trigger a fresh face-off between the government and the judiciary, the Centre is set to push legislation that will exclude the Chief Justice of India from the process to appoint the country's top election officers.
The Bill appears to dilute the Supreme Court's March 2023 judgment in which a Constitution bench said Chief Election Commissioners and Election Commissioners must be appointed on the advice of a panel comprising the Prime Minister, Leader of the Opposition and the Chief Justice of India.
The Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, chaired by BJP MP Sushil Kumar Modi, presented its 133rd report on "Judicial Processes and their Reform" to both Houses Monday.
The representation of backward communities, women and minorities in higher judiciary is below the desired level and does not reflect the country's social diversity, a Parliamentary panel has said in its report.
The committee said the pendency of cases was piling up due to the long vacations of courts is a very serious issue, it flagged vacations of judges and recommended that judges follow a rotational model instead of courts shutting for vacations.
The panel also recommended bringing a law making it mandatory for Supreme Court and high court judges to disclose their assets annually to an appropriate authority. It said there is a need to institutionalise the mechanism of regular filing of assets by the judges and put it in the public domain. "...the Committee recommends the government to bring about appropriate legislation to make it mandatory for judges of the higher judiciary (Supreme Court and High Courts) to furnish their property returns on an annual basis to the appropriate authority," it said.
A five-judge constitution bench headed by Chief Justice DY Chandrachud today commenced hearing a batch of pleas challenging the Centre's August 5, 2019 decision to abrogate Article 370, a move that had come in for vicious attack by some major opposition parties but earned fulsome praise from those supporting the BJP. But who can recommend the revocation of Article 370 in Jammu and Kashmir when no constituent assembly exists there? The Supreme Court Wednesday put this question to the petitioners who have challenged the abrogation of the constitutional provision that bestowed special status on the erstwhile state.
The constitutional bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant asked senior advocate Kapil Sibal, the lead counsel for the petitioners, as to how can a provision (Article 370), which was specifically mentioned as a temporary provision in the Constitution, become permanent after the tenure of the Jammu and Kashmir constituent assembly came to an end in 1957.
The top court referred to proviso 3 of Article 370 which says, "Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification."
The CJI asked Sibal, "What happens when the tenure of constituent assembly comes to an end? No constituent assembly can have an indefinite life. The proviso to clause (3) of Article 370 refers to the recommendation of the constituent assembly of the state, and it says before President issues a notification the recommendation of the constituent assembly is required. But the question is what would happen when the constituent assembly ceases to exist?"
Kapil Sibal responded, saying it was precisely their point and their whole case is about how the president cannot issue any notification revoking Article 370 without the recommendation of the constituent assembly. Justice Gavai interjected and asked the senior lawyer whether the argument being made is that nothing could have been done about Article 370 after 1957 when the tenure of the Jammu and Kashmir constituent assembly came to an end.
Sr Adv Kapil Sibal said the court is currently interpreting a constitutional provision and it is not here to legitimise the process which is unknown to the Constitution. The hearing will resume shortly as the court has foxed the case on daily hearing mode.
Law is a matter of the heart, as well as the head. You have to have compassion; it is one of the greatest qualities. Lord Denning and Justice Krishna Iyer have both said that compassion is extraordinarily important in the law, amongst lawyers and particularly amongst Judges. One must be able to assess whether a person has something genuine to say in a case.
-Fali Sam Nariman, Senior Advocate
Artificial Intelligence (AI) has revolutionized various industries, and the legal field is no exception. AI technologies, such as natural language processing, machine learning, and predictive analytics, offer promising opportunities to streamline legal processes and improve efficiency. However, the growing reliance on AI in the legal sector also raises significant concerns and perils. This article explores the potential risks associated with using AI in the legal field and emphasizes the need for a balanced approach that considers both innovation and ethical considerations.
Lack of Accountability and Transparency
One of the primary perils of AI in the legal field is the lack of accountability and transparency. AI systems often make decisions based on complex algorithms that are not easily interpretable by human users. This opacity can create significant challenges, particularly in legal proceedings where the right to an explanation is fundamental. If an AI system recommends a particular legal strategy or predicts the outcome of a case, it becomes crucial to understand the underlying reasoning behind these recommendations. Without transparency, legal professionals may struggle to defend or question the outputs of AI systems, leading to a loss of trust in their reliability.
Bias and Discrimination
AI algorithms are trained on historical data, and if this data contains biases, it can perpetuate and amplify them. In the legal field, biased AI systems can have severe consequences, as they may disproportionately impact marginalized communities. For example, if an AI-powered tool is used to predict recidivism rates, it may inadvertently perpetuate racial or socioeconomic biases present in historical data. Similarly, in the legal decision-making process, AI systems can inadvertently discriminate based on protected characteristics, such as race or gender, leading to unjust outcomes. Ensuring that AI algorithms are fair and unbiased requires careful attention to data selection, training methodologies, and ongoing monitoring to mitigate these risks.
Data Privacy and Security Concerns
The use of AI in the legal field involves processing vast amounts of sensitive data, including personal information, financial records, and confidential legal documents. This reliance on AI raises concerns about data privacy and security. Legal professionals must grapple with how AI systems handle and store data, the potential for data breaches, and the risk of unauthorized access. The consequences of a data breach can be severe, undermining client trust, compromising legal strategies, and violating privacy regulations. Striking a balance between leveraging AI capabilities and safeguarding sensitive information is crucial to prevent legal professionals from inadvertently breaching their ethical and legal obligations.
Ethical and Professional Responsibility
Lawyers have a fiduciary duty to act in the best interests of their clients, upholding ethical standards and maintaining professional responsibility. The introduction of AI in the legal field complicates these obligations. When utilizing AI systems, lawyers must ensure they exercise reasonable care and supervision over the technology. They must also take precautions to prevent biases, inaccuracies, or system failures that may harm their clients' interests. However, the fast-paced nature of technological advancements can make it challenging for legal professionals to keep up with the ethical implications of AI use. There is a need for ongoing education and training to enable lawyers to understand the risks associated with AI and make informed decisions that align with their ethical obligations.
Few examples where AI has caused issues in the legal field:
Incorrect Legal Advice: AI systems that provide legal advice or generate legal documents may sometimes provide inaccurate or misleading information. These systems heavily rely on algorithms and machine learning, which are trained on historical data. If the training data contains errors or outdated information, the AI system may provide flawed advice, potentially leading to unfavorable outcomes for clients.
Bias in Sentencing and Parole Decisions: AI algorithms used in predicting sentencing or parole decisions have been found to exhibit bias. These algorithms are trained on historical data, which may reflect systemic biases present in the criminal justice system. As a result, the predictions made by AI systems may disproportionately impact certain demographics, leading to biased outcomes and perpetuating societal inequalities.
Privacy Breaches: The legal field deals with sensitive and confidential information. When AI systems are used to process and store this data, there is an increased risk of privacy breaches. If the AI system is not adequately secured, it can be vulnerable to hacking or unauthorized access, potentially exposing sensitive client information and undermining trust in the legal profession.
E-Discovery Challenges: AI is often employed in e-discovery, which involves sifting through large volumes of electronic data for legal proceedings. While AI can assist in automating the process and identifying relevant documents, there have been instances where AI systems have failed to accurately classify documents or have missed crucial evidence, leading to incomplete or flawed discovery processes.
Lack of Explainability: AI algorithms often work as "black boxes," making decisions without clear explanations. This lack of transparency and interpretability can be problematic in the legal field, where the right to an explanation is fundamental. Lawyers and judges may struggle to understand and challenge the reasoning behind an AI-generated recommendation or decision, hindering the ability to ensure a fair and just legal process.
Ethical Concerns in Autonomous Vehicles and Legal Liability: With the rise of autonomous vehicles, legal questions arise regarding liability in accidents involving self-driving cars. AI algorithms play a crucial role in the decision-making process of these vehicles. Determining who is responsible when an accident occurs, whether it is the vehicle manufacturer, software developer, or the vehicle owner, becomes complex and raises ethical and legal challenges.
These examples illustrate the potential issues and challenges that arise when AI is used in the legal field. It emphasizes the need for careful consideration, oversight, and ongoing evaluation of AI systems to ensure their reliability, fairness, and adherence to legal and ethical standards.
While AI presents immense potential for enhancing efficiency and effectiveness in the legal field, it is crucial to acknowledge and address the associated perils. Legal professionals must navigate the challenges of accountability, transparency, bias, privacy, and ethical considerations when integrating AI systems into their practice. Striking a delicate balance between innovation and ethical concerns will be essential in leveraging AI to its fullest potential without compromising the fairness, integrity, and values that underpin the legal system. By embracing transparency, proactively addressing biases, strengthening data privacy, and ensuring ethical and professional responsibility, the legal field can harness AI's capabilities while safeguarding the principles that are central to the pursuit of justice.
Currently, India has no codified laws, statutory rules or regulations, or even government-issued guidelines, that regulate AI per se. The obligations on this subject are set out in the Information Technology Act 2000, and the rules and regulations framed thereunder.
With huge volumes of data and events, AI systems can render correct results and/or positives. But getting inaccurate data from unreliable sources can even backfire.
Aashish is a senior technologist and currently pursuing his doctorate in Artificial intelligence from SSBM, Switzerland
Satya is an author, columnist and advocate practicing before the Hon’ble Supreme Court of India.