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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 1.6 crore cases to 1.9 crore cases in subordinate courts.  Despite an increase in disposal of cases in most years, the pendency of cases has increased due to the number of new cases outpacing the number of cases disposed.
The disposal rate has stayed between 55% to 59% in the Supreme Court, at 28% in the High Courts, and at 40% in the subordinate courts.

Legal Services Legal Services Legal Services

More criminal cases are filed in subordinate courts than in High Courts and Supreme Court.  For example, 81% of all cases pending in subordinate courts (2016) were criminal cases, compared to 19% civil cases.  On the other hand, in High Courts, a higher number of civil cases were filed (60%) compared to criminal cases (40%).

A question came across my mind that, if non availability of Oxygen violates Article 21 than people die awaiting disposal also violates Fundamental Rights enshrined in the Constitution? This is a question and did not raised to demean or insult but to debate and rescue the system and society who still has not lost faith but certainly somewhere hope is lost in system due to its sluggishness.

Judgement :

In Re: The Special Courts Bill  vs Unknown on 1 December, 1978 citations: AIR 1979 SC 478, (1979) 1 SCC 380, 1979 2 SCR 476

A reference was made in 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 whether the “Special Courts Bill, 1978” or any of its provisions, if enacted, would be constitutionally invalid.

In para 48 Counsel raised question

  1. A pertinent question was posed by Shri Shiv Shanker or this aspect of the matter. He asked: If Parliament is to be conceded the power to enlarge the jurisdiction of the Supreme Court in the manner impugned herein, what was the object and purpose behind provisions like those contained in Articles 133(3), 134(2), 138(1), 138(2), 139 and Article 140? What these articles empower the Parliament to do could with equal competence and validity have been done by the Parliament in the exercise of its powers under Article 246(1) and (2). The reason why, according to the learned Counsel, the framers of the Constitution thought it necessary to incorporate special provisions in the Constitution empowering or enabling the Parliament to pass laws in respect of the Supreme Court’s jurisdiction was to limit its powers in that behalf to specific matters and circumstances mentioned expressly in those special provisions. In other words, the contention is that specific provisions of the Constitution under which the jurisdiction of the Supreme Court can be enlarged must override the general provisions under which Parliament can pass laws in respect of matters enumerated in Lists I and III of the Seventh Schedule.

The said question was answered in para 49 by the bench:

  1. We consider it impossible to accept the argument that the conferment of power to pass laws on specific matters limits the Parliament’s power to pass laws to those matters only and takes away its power to pass laws on matters which are otherwise within its legislative competence. The language of Article 246(1) and (2) is clear and explicit and admits of no doubt or difficulty. It must, therefore, be given its due effect. In the first place, therefore, no implications can be read into the provisions of Chapter IV, Part V of the Constitution which their language does not warrant; and secondly, the attempt has to be to harmonize the various provisions of the Constitution and not to treat any part of it as otiose or superfluous. Some amount of repetitiveness or overlapping is inevitable in a Constitution like ours which unlike the American Constitution, is drawn elaborately and runs into minute details. There is, therefore, all the greater reason why, while construing our constitution, care must be taken to see that powers conferred by its different provisions are permitted their full play and any one provision is not, by construction, treated as nullifying the existence and effect of another. Indeed, if it be correct that the specific powers conferred by some of the articles in Chapter IV, Part V are exhaustive of matters in which Parliament can confer jurisdiction on the Supreme Court, it was wholly inappropriate and unnecessary to provide by Article 138(1) that 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. This article is relied upon heavily as showing that if, even without it, it was competent to the Parliament by virtue of its power under Article 246(1) and (2) to enlarge the Supreme Court’s jurisdiction, no purpose could be served and nothing gained by enacting that article. The answer to this contention is twofold as indicated above. Besides, the object of Article 138(1) is to further enlarge the Parliament’s power to confer jurisdiction on the Supreme Court even in matters already dealt with specifically in Chapter IV, Part V. For example Article 136(2) provides that nothing in Clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces. But by virtue of Article 138(1) read with entry 2 and entry 93 of List I, it may be competent to the Parliament to remove the fetter on the Supreme Court’s jurisdiction to grant special leave and extend that jurisdiction to the judgment, determination; sentence or order passed or made by any court or tribunal constituted by ar under any law relating to the Armed Forces. Likewise, acting under Article 138(1), the Parliament may enlarge the original jurisdiction conferred upon the Supreme Court by Article 131. Even assuming that Article 138(1) may not have been intended to achieve any purpose as aforesaid, its object could at least be to empower the Parliament to confer any special kind of jurisdiction and powers on the Supreme Court with respect to a matter in the Union List. If the argument regarding the exhaustiveness of the provisions contained in Chapter IV, Part V were correct, by parity of reasoning, it will be in competent to the Parliament to pass a law in respect of matters mentioned in entry 72 of Lisa I (Election…to the offices of President and Vice-President… ), by reason of the fact that Article 71 of the Constitution empowers the Parliament specifically to regulate by law any matter relating to or connected with the election of a President or Vice-President, including the grounds on which such election may be questioned. Article 71, as indeed many other articles, shows that there are overlapping provisions in our Constitution. The Parliament, therefore, has the competence to pass laws in respect of matters enumerated in Lists I and III notwithstanding the fact that by such laws, the jurisdiction of the Supreme Court is enlarged in a manner not contemplated by or beyond what is contemplated by the various articles in Chapter IV, Part V. Preventive detention, for example, is the subject matter of entry 3 in List III. As contended by Shri Ram Jethmalani, it is competent to the Parliament to legislate upon that topic by virtue of its powers under Article 246(2) and also to provide by virtue of its powers under Article 246(1) read with entry 77 of List I that an appeal shall lie to the Supreme Court from an order of detention passed under a law of preventive detention.

Conclusion:

To overcome this situation should Parliament Set up an extended Judiciary specially to hear pending cases and special execution courts? Because new filing of cases are more than disposed off and to have rule of law and Justice we need to set up more efficient qualified Judiciary to clear up back log. While present system may deal with continuous process imparted by them now.

We can also have division of Medico-legal Judges , Charter financial Expert division Judges , Execution of Decree and Recovery Judiciary. This shall not be subject to any Collegium and may be independent to prevailing appointment process. Division of work is need of an hour to reinstitute hope in the minds of citizens.

To add Mediation is a failure by system and is additional expenses on litigation.

#karma has a cycle it always returns and that is ultimate justice. Between this cycle Judiciary has to play urgent and efficient role.

Shruti Desai

15th May,2021