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JUDICIAL ACTIVISM AFFECTING ORIGINAL SCOPE OF DUTIES? An analysis based on Article 138 of the Constitution :

May 15, 2021

My Quote: We must consider a person whose money and land is blocked in litigation dies everyday. Article 138. Enlargement of the jurisdiction of the Supreme Court (1) The Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer (2) The Supreme Court shall have such further jurisdiction, and powers with respect to any matter as the Government of India and the Government of any State may by special agreement confer, if Parliament by law provides for the exercise of such jurisdiction and powers by the Supreme Court Poetic Justice: English drama critic Thomas Rymer coined the phrase in The Tragedies of the Last Age Consider’d (1678) to describe how a work should inspire proper moral behavior in its audience by illustrating the triumph of good over evil. The demand for poetic justice is consistent in Classical authorities and shows up in Horace, Plutarch, and Quintillian, so Rymer’s phrasing is a reflection of a commonplace. Philip Sidney, in The Defence of Poesy (1595) argued that poetic justice was, in fact, the reason that fiction should be allowed in a civilized nation. But Indian Civilization believes in Karma which was much much prior to theory of poetic justice: And here they say that a person consists of desires, and as is his desire, so is his will; and as is his will, so is his deed; and whatever deed he does, that he will reap. : Brihadaranyaka Upanishad, 7th century BCE Judicial Activism: During #pandemic #Covid19India Judiciary played active role. As such over last 15 years there is more judicial activism. When we change or expand horizon we need more efficiency, professionalism, workforce, intellect, reduction in procedure and process, and also with today’s time we need modern technology. We have in last decade seen Judiciary calling #AirChiefMarshal for questioning on #Rafaeldeal We saw courts ordering change in 1000 years custom and usage in case of #shabarimala At the same time #NJAC was struck down. There is Judicial activism seen by way of PILs and suo motu cognizance. However the fundament duty of Judiciary has seen serious backlog. May it be suit, appeal or execution. We cannot value the total amount stuck in financial  recovery cases,  and land cases pending in various courts across India. Common citizens discuss but do not debate because of scare of law. I am referring these sequences of events because recently Bombay High Court said if people die of lack of oxygen it’s violative of Article 21. What does it provide? Article 21 in The Constitution of India 1949 gives  Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law. Backlog of Cases violate of Constitutional Rights? there is report which requires serious considerations even by those who are executing duties under oath. https://prsindia.org/policy/vital-stats/pendency-cases-judiciary which says: In 2016,  compared to 2006, number of cases disposed of increased approximately from 57,000 to 76,000  in Supreme Court;  from 14.4 lakh cases to 16 lakh cases in High Courts and from […]

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What will be fate of West Bengal Chief Minister after Six months? Can a candidate who has lost election be a Chief Minister after period of six months? What does constitution provide?

May 8, 2021

In normal circumstances we have seen Manmohan Singh did not contest a single general election, but he was appointed as Prime Minister and he was elected in Upper House of Parliament  within six months to continue in office. Similarly in Maharashtra Uddhav Thackeray Chief Minister Maharashtra  did not contest election but was nominated in Upper House of Assembly. These are cases where candidate had not contested election. But in case of West Bengal Mamata Banerjee who recently took Oath as Chief Minister, contested election and lost it. This makes case peculiar. Now for that we need to know the provisions of the Indian Constitution. Article 164 in The Constitution of India 1949 Other provisions as to Ministers (1) The chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor: Provided that in the State of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work (2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State (3) Before a Minister enters upon his office, the Governor shall administer so him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule (4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister (5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule The Advocate General for the State Article 173 in The Constitution of India 1949 Qualification for membership of the State Legislature A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he (a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule; (b) is, in the case of a seat in the Legislative Assembly, not less than twenty five years of age and in the case of a seat in the Legislative Council, not less than thirty years of age; and (c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament Article 191 in The Constitution of India 1949 Disqualifications for membership (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First […]

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WHY CENTRAL GOVERNMENT RELUCTANT TO IMPOSE PRESIDENT RULE IN WEST BENGAL?

May 5, 2021

Let us see various provisions of the Indian Constitution. Article 352 in The Constitution of India Proclamation of Emergency (1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, made a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation Explanation A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof  Note: This power was exercised in the year 1977 Article 355 casts duty on the state to provide safety and security. Duty of the Union to protect States against external aggression and internal disturbance It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution. 44th Amendment: The Forty-fourth Constitutional Amendment substituted “armed rebellion” for “internal disturbance” in Article 352. “Internal disturbance” is, therefore, no longer a ground for taking action under that Article. Further, it cannot, by itself, be a ground for imposing President’s rule under Article 356(1), if it is not intertwined with a situation where the government of a State cannot be carried on in accordance with the provisions of the Constitution. What is Internal Disorder: ( Source Sarkaria Commission Report) 6.3.04 It is difficult to define precisely the concept of ‘internal disturbance’. Similar provisions, however, occur in the Constitutions of other countries. Article 16 of the Federal Constitution of Switzerland uses the expression “internal disorder”. The Constitutions of the United States of America and Australia use the expression ‘domestic violence’. The framers of the Indian Constitution have, in place of this term, used the expression ‘internal disturbance’. Obviously, they have done so as they intended to cover not only domestic violence, but something more. The scope of the term ‘internal disturbance’ is wider than ‘domestic violence’. It conveys the sense of ‘domestic chaos’, which takes the colour of a security threat from its associate expression, ‘external aggression’. Such a chaos could be due to various causes. Large-scale public disorder which throws out of gear the even tempo of administration and endangers the security of the State, is ordinarily, one such cause. Such an internal disturbance is normally man-made. But it can be Nature-made, also. Natural calamities of unprecedented magnitude, such as flood, cyclone, earth-quake, epidemic, etc. may paralyse the government of the State and put its security in jeopardy. Instances: Gujarat.—(9-2-1974) The anti-price-rise agitation in Gujarat turned into a mass movement with demands for removal of the Ministry and dissolution of the Assembly. Army had to be called in at some places to deal with violence. […]

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