CAN PARLIAMENT SET UP SPECIAL COURT TO DISPOSE OFF PENDING MATTERS? A DISCUSSION AND SUGESSIONS
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 […]
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COLLEGIUM CONTROVERSY AND CONSTITUENT ASSEMBLY REPORT : WITHOUT PREJUDICE ANALYSIS
Is NJAC a violation of Article 368 or violates the theory of pith and substance? To understand we must go back to the root of the matter. Brief History This issue is neither constitutional nor legal. The issue is to decide the procedure for appointment of Judges in High Courts namely the High Court and Supreme Court. As such the debate on the procedure to appoint judges to higher courts was debated forcefully by several leading giant members of the Constituent Assembly. But no consensus was drawn. The details we shall see here are below. But before that somewhere in the year 1991 by order and Judgement of the Supreme Court, a system was designed by the name Collegium. In Collegium 6-8 Judges would consider candidates for the office of the higher court judges which includes the Chief Justice of State and Supreme Court Collegium members. Who selects the candidates and forwards the names to the Law Ministry for scanning intelligence background. There is no other role of the Government in the selection process. The President in the course gives his assent and notifies. Is this a correct system that was dreamt by the makers of our Constitution? Or is hit by pith and substance? Link to read Judgement : https://indiankanoon.org/doc/753224/ Current scenario and the allegations: Over a period of time, this system was allegedly affected by nepotism and it is alleged that it has created a monopoly. There were news reports as well as reports of a senior lawyer at the bar that 50% of the Judges are relatives of the ex-Judges. In the meantime, the Government enacted a law called National Judicial Appointments Commission Act, 2014 ( NJAC ) which was abrogated and declared ultra-vires by the Supreme Court. This resulted in the continuity of the Collegium System. In its logical and practical argument that the Judiciary, it’s argued that the participation of politicians in the selection process may vitiate the independence of the judiciary. This danger was also visualized by the late Dr. B.R. Ambedkar. For the said reason though amendments were moved to adopt the American method of appointment of judges to the higher courts same were withdrawn by respective Constituent Assembly members. However, the late Dr. Ambedkar could not have thought of the situation persisting today about the collegium system which has allegedly resulted in the monopoly of a few families. Here is the link: https://timesofindia.indiatimes.com/india/govt-gives-collegium-proof-of-nepotism-in-picks-for-hc-judges/articleshow/65220425.cms https://www.hindustantimes.com/india/50-hc-judges-related-to-senior-judicial-members-report/story-S8RP2Ir9cEuIN4NewFnvML.html With this background let us see the history of this issue and why it did not reach finality during the finalization of the Constitution of India. The Government of India Act, 1919 provided in Section 101 for the Constitution of High Courts; and the appointment of the Chief Justice and the permanent Judges were in the absolute discretion of the Crown, subject only to the prescribed conditions of eligibility. The tenure of their office, according to Section 102, was dependent entirely on the Crown’s pleasure. Under the Government of India, Act, 1935, appointments of Judges of the Federal Court and the High Courts were at the absolute discretion of the Crown or, in other words, […]
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COLLEGIUM AND CONSTITUENT ASSEMBLY -PITH AND SUBSTANCE CONFLICT OR DEVIATION?
Nowadays Collegium is a topic of debate. It’s a system where the Committee of Justices of Higher Courts sanctions and recommends an appointment of an Advocate/Justice of the High Court to a higher bench or apex bench of the Judiciary. Which is under criticism. At present Collegium is a system that makes the appointment and recommends names to the President and Government of India. However, as a matter of academic interest let us see the background of this issue. To draft the Constitution, a Constituent Assembly was constituted. In the said assembly the topic or article on the appointment of Judges to the higher judiciary amendments was discussed at length. Copy each of Part-1 and Part -2 of the Collegium discussion given below in the link. The following are the relevant resolutions. Proceedings before Constituent Assembly Mr. President: The question is: “That for clause (2) of article 103 the following be substituted:- ‘Every Judges of the Supreme Court shall be appointed by the President by warrant under his hand and seal and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge, other than the Chief Justice, the Chief Justice of India shall always be consulted.’” The amendment was negatived. “That in clause (4) of article 103, for the words ‘supported by not less than two-thirds of the members present and voting has been presented to the president by both Houses of Parliament ‘ the words ‘by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President’ be substituted.” The amendment was adopted. Provision of Constitution: An evolution: Provision of Constitution : Establishment and constitution of Supreme Court.—(1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than [seven] other Judges. (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal [on the recommendation of the National Judicial Appointments Commission referred to in article 124A]2 and shall hold office until he attains the age of sixty-five years: 3.[* * * * *] 4 [Provided that]— (a) a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office in the manner provided in clause (4). 5 [(2A) The age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide.] (3) A person shall not be qualified for appointment as a Judge of the Supreme Court, unless he is a citizen of India and— (a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or (b) has been for at least ten years an advocate of a High Court or of two or more such Courts […]
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