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Indian Express
2 days ago
- Indian Express
SC using special powers to reverse POCSO verdict shows its moral responsibility
Written by Shashank Maheshwari When Jesus of Nazareth stood before Pontius Pilate and declared that he came into the world to bear witness to the truth, the Roman governor responded with a question that still echoes through history: 'What is truth?' Jesus did not reply. His mission, the silence suggests, was not to define abstract truth but to stand for justice — the justice envisioned in the Kingdom of God. He died for that justice. In today's constitutional context, when the Supreme Court invokes Article 142 of the Indian Constitution, the question is not merely, 'What is the law?' but something deeper and more human: 'What is justice?' Article 142 empowers the Court to deliver what the statutes sometimes cannot: 'complete justice.' It is not a routine remedy but a moral trust, invoked when our shared sense of fairness is offended — and this tension was at the centre of the Court's recent ruling in In Re: Right to Privacy of Adolescents (2025). This is a case where the victim was not only abandoned by her family but also neglected by the State and failed by delayed legal action. The case dates back to 2018, when a 14-year-old girl ran away to the house of the accused, who was 25 at the time. The victim's mother filed an FIR and requested the accused to bring her daughter back. The girl returned home a week later, only to go back to the accused's house a year after and begin cohabiting with him. She was completely abandoned by her family thereafter. During this period of cohabitation, a baby girl was born. After a delayed investigation, the accused was arrested under Section 6 of the Protection of Children from Sexual Offences Act, 2012, for committing 'aggravated penetrative sexual assault' and under Sections 376(2)(n) and 376(2)(i) of the Indian Penal Code — for repeatedly raping the same woman and for raping a woman under 16 years of age, respectively. He was also charged with kidnapping under the Indian Penal Code. The Special Court under POCSO sentenced him to 20 years of imprisonment for sexual assault, along with five years for kidnapping. When the case reached the Calcutta High Court, it reversed the conviction, holding that both the victim and the accused were in a 'consensual romantic relationship' and that their actions constituted 'non-exploitative sexual acts.' The High Court also made objectionable remarks, directing female adolescents to control their sexual urges, along with similar directions to boys and girls — prompting the Supreme Court to initiate suo motu proceedings in the matter. The Supreme Court ultimately upheld the Special Court's judgment, reversing the High Court's decision, and emphasised that consent is irrelevant in cases involving a minor. A committee was appointed to assess the victim's socio-economic situation. Its report revealed her emotional trauma, financial exploitation, and the debt she incurred while supporting the accused. Invoking Article 142, the Court exempted the accused from further punishment to avoid inflicting additional harm on the victim. However, the Court clarified that this ruling is not to be treated as a precedent. Article 142(1) of the Constitution empowers the Supreme Court to pass any order necessary to do complete justice in any pending matter. No other constitution in the world grants such broad discretionary powers to its highest court, except for Bangladesh (Article 104) and Nepal (Article 88(2)). The interpretation of 'complete justice' under Article 142 has evolved significantly — from a restrained approach in Prem Chand Garg (1963), where the Court held it could not override statutes, to a more expansive use in the 1990s. In Union Carbide (1991) and Delhi Judicial Service Association (1991), the Court used Article 142 to bridge legal and executive gaps. Later, in Vishakha (1997), it issued binding guidelines in the absence of legislation. While such interventions helped address urgent injustices, they have also drawn criticism for bypassing constitutional limits. In the recent POCSO case, the Court acted out of deep concern for the victim's dignity and future. Yet it also stepped into executive territory — prescribing care plans, financial support, and directing state-level compliance. These are responsibilities typically expected of welfare departments or social services. Even when done with noble intent, such judicial action can disrupt the delicate balance of powers that underpins constitutional governance. The Supreme Court's intervention in this case was emotionally resonant and morally grounded. But the ruling serves as a reminder that Article 142 is not a blank cheque for good intentions. It is a delicate instrument, one that must be used sparingly — precisely because it enables the judiciary to operate outside statutory bounds. Though the Court explicitly stated that this case shall not be used as precedent, that does not mean similar decisions cannot be made in the future, even without relying on this ruling. This case should also serve as a caution: even justice must pause to reflect on its limits. In a democracy governed by the rule of law, justice is not only about what is right — it is about who decides what is right, and how. The writer teaches at Jindal global law school
Indian Express
12-05-2025
- Politics
- Indian Express
Pendency has made justice a game of patience in India
By Shashank Maheshwari In Franz Kafka's haunting parable Before the Law, a man waits all his life to gain access to the law, stopped by a doorkeeper who never denies him entry in clear terms, leading to an indefinite delay. As he dies, the man is told the entrance was meant for him alone. The gate shuts. He never entered. This is the experience of millions of Indians today. The law isn't denied to them — it's simply never delivered. India's judicial system now groans under the weight of over 5 crore pending cases across courts. In subordinate courts, more than 50 per cent of these cases have been pending for over three years. According to government data presented in the Rajya Sabha in 2023, 1,514 cases in High Courts and 1,390 in subordinate and district courts have been pending for over 50 years. The pendency problem isn't just about bureaucratic inefficiency — it seems to be a constitutional breakdown. The judiciary's burden is worsened by gaps in its capacity. According to the India Justice Report (IJR) 2025, the average judicial vacancy in High Courts is 33 per cent, with Allahabad HC at 51 per cent and Punjab & Haryana HC at 40 per cent. Subordinate courts fare no better, with an average vacancy of 21 per cent, and states like Meghalaya (43 per cent), Mizoram (39 per cent), and Ladakh (35 per cent) reaching alarming levels. Meanwhile, there are only 15 judges for every 10 lakh Indians — a fraction of what the 1987 report of the Law Commission recommended: Fifty judges per 10 lakh people. The result? Cases pile up. Hearings are delayed. And justice remains out of reach. The Supreme Court, overwhelmed with its own backlog, has seen over 2,500 new pending cases added in early 2025 alone, as per SCC Observer. During the hearing of Amit Sahni v. Union of India, the Delhi High Court admitted that it was operating at just 60 per cent of its capacity, warning that delay at this scale 'virtually amounts to denial of justice'. In February, the SC demanded a status report on all HC judgments reserved before January 31, highlighting the silent tragedy of cases concluded but undecided. Nowhere is the pendency crisis more visible than in India's prisons. As of December 2022, 76 per cent of India's prison population are undertrials — people not yet convicted of any crime. Shockingly, 22 per cent of them have been detained for one to three years, and 2.6 per cent for over five years. In Uttar Pradesh, which alone accounts for 22 per cent of all undertrials, many have waited over half a decade in jail, often for petty charges. Bihar reports the highest share of undertrials at 89 per cent, while Mizoram recorded a steep increase from 57 per cent to 66 per cent in just one year. Recognising this, the SC has recently recommended the digitisation of all criminal appeals, the appointment of registrars for case management, and prioritisation of cases involving imprisoned accused. These are necessary first steps, but the underlying system must be repaired if they are to have any impact. Despite an increase in budget, there is considerable lag in infrastructural development. In 2022–23, India's sanctioned prison budget rose to Rs 8,725 crore — a 14.5 per cent increase. Seventeen states increased judicial spending more than their overall state expenditure. But systemic bottlenecks — vacancies, outdated infrastructure, and lack of digital capacity — continue to cripple outcomes. Staff vacancies in courts average 25 per cent in the HCs and 27 per cent in subordinate courts. In courts across India, e-Courts initiatives struggle due to poor connectivity, untrained personnel, and inadequate infrastructure. Even technology, heralded as a panacea, remains a half-built scaffold. E-sewa Kendras, e-filing systems, and live-streaming of proceedings show promise, but their reach is uneven and often symbolic. As the IJR cautions, 'technology cannot substitute structural reform.' Moreover, India's justice system remains fragmented. Police forces remain understaffed, with only 155 officers per 1 lakh population, well below the sanctioned 197. Forensic science labs face over 50 per cent vacancy rates, delaying investigations. Legal aid is crumbling. Paralegal volunteer deployment has dropped since 2019, and access at the grassroots is weakening. The proposed All India Judicial Services (AIJS) — a potentially game-changing reform to centralise and standardise judicial appointments — remains mired in political limbo. There is no national recruitment calendar, and many states fail to meet caste and gender representation quotas. As Justice Sanjay Kishan Kaul, former SC judge, writes in the IJR foreword: 'Justice reform is too important to be left solely to institutions — it must become a societal demand.' Pendency is no longer just a delay — it is a denial of democracy. It weakens economic enforcement, deepens inequality, and erodes faith in the Constitution. While reforms like digital tools, fast-track appointments, and increased funding are steps in the right direction, they must be tied to outcomes, not optics. The IJR makes it clear: Only a whole-of-system reform, touching courts, police, prisons, legal aid, and forensics, can break the pendency deadlock. This requires political will, administrative coordination, and civil society pressure. Above all, it requires a shift from courtroom firefighting to long-term institution-building. Justice in India must not remain a game of patience. It must become a guarantee — timely, fair, and real. The writer teaches at Jindal global law school
