Indians are a very tolerant community. Citizens are basically law-abiding. But as per data available there are more than 5 crore cases are pending in various courts across India. This includes criminal, civil, DRT, matrimonial, adoption, insolvency, and others. There is always vacancy for Judges and there is also friction between different stakeholders regarding the method of appointment. The pending cases are monetary disputes, land disputes, agricultural land, easement, flat purchasers right, and so on. This also includes international arbitration awards and their execution.
When a suit is filed immediate party moves for ad-interim reliefs by way of a Notice of Motion or Interim Application as the case may be. When the order is passed same Notice of Motion comes up for a final hearing after 5 to 10 years. By that time if Plaintiff did not get the order he loses the edge and his right. Then suit may be on board for framing of Issues may be another 5-10 years. The next stage is the affidavit of evidence, admission denial of documents, and cross-examination of witnesses. When a decree is passed it takes time of 2 to 3 years for sealing. When the decree is ready for execution if not executed then we have to take out 21×22 notice in which takes another 2 years to reach and there may be objections. So, for Plaintiff entire exercise is futile. Citizens need a remedy that is speedy and result oriented.
The matter doesn’t end here after the ad-interim there is an Appeal from the Order then the Supreme Court and so on and so forth. The litigation is unending and is also costly. To overcome this situation government introduced concept of mediation. It is not much successful. As far as Arbitration is concerned the new concept of institutional arbitration is introduced. It may have been successful but not much accepted by common people like new entrepreneurs, startups, and the common citizens. That is due to cost and fees of an arbitrator. Many petitions are filed in Supreme Court challenging fees of the arbitrator. (See ONGC vs Afcons Gunanusa JV)
Does the question arise what is the remedy? The remedy lies in our constitution.
Article 217 says the Appointment and conditions of the office of a Judge of a High Court.—(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal and [shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of [sixty-two years]:]
126. Appointment of acting Chief Justice.—When the office of Chief Justice of India is vacant or when the Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose.
127. Appointment of ad hoc Judges.—(1) If at any time there should not be a quorum of the Judges of the Supreme Court available to hold or continue any session of the Court, and after consultation with the Chief Justice of the High Court concerned, request in writing the attendance at the sittings of the Court, as an ad hoc Judge, for such period as may be necessary, of a Judge of a High Court duly qualified for appointment as a Judge of the Supreme Court to be designated by the Chief Justice of India. (2) It shall be the duty of the Judge who has been so designated, in priority to other duties of his office, to attend the sittings of the Supreme Court at the time and for the period for which his attendance is required, and while so attending he shall have all the jurisdiction, powers and privileges, and shall discharge the duties, of a Judge of the Supreme Court.
Now here there is alleged friction. Though the power of appointment lies with the President the appointment is selected by a group of the collegium. Then it is confirmed by the President of India. However, apart from this, there is also a law namely The Special Courts Act, 1979 ( https://indiankanoon.org/doc/701797/ )
In this, the Central Government is empowered to set up Special Courts.
There was a reference to Supreme Court regarding its validity.
In Re: The Special Courts Bill, … vs Unknown on 1 December 1978 Author: Y Chandrachud
Bench: Y Chandrachud, N Untwalia, P Bhagwati, P Shinghal, R Sarkaria, S M Ali, V K Iyer
On August 1, 1978, the President of India made a reference to this Court under Article 143(1) of the Constitution for consideration of the question of whether the “Special Courts Bill, 1978” or any of its provisions, if enacted, would be constitutionally invalid
It was held that in conclusion, our answer to the reference is as follows:
(1) The Parliament has the legislative competence to create Special Courts and to provide that an appeal shall lie as of right from any judgment or order of a Special Court to make a declaration under Clause 4(1) of the Bill in respect to the Supreme Court. Clauses 2 and 10(1) of the Bill are, therefore, within the Parliament’s legislative competence;
Set up Special Courts for final hearing. Most of the Judges tenure goes in hearing PILs and in Constitution Bench. It means everyday minimum 3- 7 Judges in Hon’ble #SupremeCourtOfIndia are busy in hearing reference court matters or PILs which is refereed to larger bench. In this, topics are from defence deals to raids on some media house for evasion of tax. Hon’ble Court is also kind enough to decide cases like height of #DahiHandi #jalikattu #supply of #oxygen during #corona damages for deaths due to #corona or #vaccine supply of #remdesivir entry of women in #hindutemples some international valuation reports, alleged spying on politicians, Ram Temple, Shiv Temple, reservations, bails, path… There are incidents where doors of justice was knocked twice at midnight. For Kasab hanging and for Karnataka elections. Common citizens do not disturb Lordships at midnight. Sometimes common citizens feel that there is strong administrative monitoring authority who directs to the government machinery. Which is appreciated. There are cases like #bofors where immediately upon lifting injunction money was transferred to #qutorocchi There is a suggestion. As preoccupancy of maximum judges in reference bench, let the government think of #bifurcation of work. Set up special courts with same strength of Judges in the Supreme Court and High Court. This can be done under the provisions of the #indianConstitution itself. Namely #Article124 to #Article127. Under this Article powers are bestowed upon the President of India.
The reason is not to demean the Hon’ble Supreme Court, but they need some more support to dispose off pending cases. Let Commissioners record evidence like USA and submit to the special court and pass decree.
Another reason is parallel economy is stuck in courts because of Court Receiver, ad interim stay, execution of decree stayed for many reasons, all these cases have appeal, second appeal, SLP, revision, review so on. It takes more than one generation to get money or release property. If necessary, be strict in admitting appeals. Now it’s for Government to decide the modalities because common citizen needs faster resolution of their case. Sometimes they sell ornaments to pay for litigation as it is dragged for generations. In Bombay High Court there is first sentence of every Lordship in case of family disputes that do not become #Kamani. Many such cases are discussed on cup of coffee.
INJUNCTIONS KILLING JUSTICE? PROPOSITION:
1. Article 300A of the constitution: No person shall be deprived of his property save by authority of law. Sadly this article when inserted by 44th amendment lawmakers forgot to put an explanation.
2. This is a constitutional right guaranteed. But it’s worst misused. This Article needs explanation a. when the citizen gets protection under this article b. encroachers shall not get protection c. illegal possession shall not be protected under this article;
3. Any encroachment on government land made by any citizen or illegal migrants shall have serious consequences like no privileges or education medical facilities e. no alternative accommodation entitlement f. citizenship need to be proved;
4. any encroachment is violative of the fundamental rights of other citizens as encroachment is not right in personam; Article 300A is misused in big property transactions. Put someone in an illegal occupation and extract a big chunk from the owner/builder;
5. The term “due process of law” must be defined It cannot be indefinite to make it impossible to throw out wrongdoers Those who guard Constitution has more responsibility towards those who live respecting law and order and contribute tax;
6. Guarding of the constitution cannot be lope-sided. The Constitution of India doesn’t save and support illegality and crime. To usurp land or grab it under the guise of “due process of law” is violative of the fundamental rights of law-abiding citizens;
7. Hope #CJI and lawmakers take this issue seriously and understand that in the name of poverty etc huge loss and injustice is done to those who are entitled to the facilities for the general enjoyment of citizens;
8. Due to the absence of an explanation for the term “due process of law” very conveniently misused and manipulated this constitutional right to the exclusion of the fundamental rights of the citizens;
9. If want to stay ask them to deposit the value of the land in question;
10. The middle class kill our desires and live with dignity our children don’t marry early as they have to pay EMI of education loan and housing loan. While an encroacher gets pampered and paid handsomely to vacate. Where is this written in Constitution?
11. If you say the due process is a suit it will take 25 years or more. What option is open for the party defendant in such an injunction application? Pay as demanded?
a. Increase court fees of such injunction applications from Rs.1000/- to the market value of the property claimed by the encroacher;
b. Along with the increase in court fees such Plaintiff must deposit 50% of the market value of the property claimed in the Plaint;
c. Most of the suits filed in City Civil Court for not to dispossess without due process of law are just to reduce cost and to fleece the owner. This has created a burden on the system;
#WeRequestModiGovt 1.Code of Civil Procedure read with
High Court Rules & Civil Manual is very exhaustive.
Filing an ad-interim interim injunction
#WeRequestModiGovt 2.& decree than Appeal FA & 2 SC. Means a person filed a suit 4 recovery of property or money in 1985 it will get final
#WeRequestModiGovt 3. After 30 yrs & petson who filed may b not alive on day of decree.suppose after getting decree in say 5 yrs than after
#WeRequestModiGovt 4. Getting decree it has 2 go 4 execution. If not applied within 2 yrs it requires revalidation. If applied property
#WeRequestModiGovt 5.attached than comes objections from various parties or family members claiming their rights in the property. Againevidence
#WeRequestModiGovt 6. 2 be led whether the claim raised R genuine or not. If attachment is lifted than decree holder is high & dry.
#WeRequestModiGovt 7. Review CPC. This is barrier in trust in entire judiciary capabilities. Common man can’t think of going 2 courts
#WeRequestModiGovt 8. This has led 2 situation jiski laathi uski bhens. Charges of court fees highest is 3 lakh counsel charges Department
#WeRequestModiGovt 9. Expenses has made legal redressal a luxury. Imagine ad- interim injunction granted continues 4 minimum 5 yrs.
#WeRequestModiGovt 10. Inyerim injunction 4 another 10 yrs. Decreeis passed after 20 yrs can b set aside in Appeal. By that time litigants
#WeRequestModiGovt 12. What do litigants get? If ty go 2 local goon it is settled within no time. This makes rise of Dons.
#WeRequestModiGovt 13. Suggest Senior Counsel must argue cases of poor without pay of minimum no of cases & seniority 2 continue only then
#WeRequestModiGovt 14. Review execution proceedings decree at present is just a paoer decree. CPC is major hurdle in effective legal remedy
#WeRequestModiGovt 15. After ad interim suit 2 b placed 4 evidence immediately 4 new cases. 4 old appoint commissioners allot them 2 lead
#WeRequestModiGovt 16. Evidence with all powers & status of Justice by way of notification & give them target of time within which it has
#WeRequestModiGovt 17. 2 b completed. Execution of decree like drawn up decree itself takes 5 yrs Change law & do away with sealing of decree
#WeRequestModiGovt 18. No revival of decree necessary every 2 yrs. Anyone challenges decree must deposit / bank guarantee of equal amount
#WeRequestModiGovt 19. In Mumbai alone there are Court Receiver appointed since 1960 -1976. It is still in custody of court. Expedite it
#WeRequestModiGovt 20. Enforcement of court order is biggest challenge today. Instead of shedding tears debate & suggest to overcome this
#WeRequestModiGovt 21. Even NI 138 cases proclamation is issued than it becomes dormant file.
#WeRequestModiGovt 22. Economic office is more killer than murder.
Family who has 2 recover dies every minute. Debtor enjoys minimum 25 yrs
#WeRequestModiGovt 23. Invite application 4 higher court judges by way of public advertisement
#WeRequestModiGovt 24. Declare names of Judges who are in Collegium.
#WeRequestModiGovt 25. Setout process & make it public procedure & process 4 appointment of high court judges.
#WeRequestModiGovt 26. Present system of appo is under veil.
Competent candidates do not get opportunity as ppl come 2 know only appointment
#WeRequestModiGovt 27. No public invitation 4 seat of higher judiciary made is just rejecting rights of eligible candidate 2 offer service
#WeRequestModiGovt 28 let us make judiciary competent & not just institution giving opportunity 2 few known.
Link to the above tweets:
19th February 2023