What's eating the Supreme Court of India?

Ever so often, the Supreme Court (SC) gets desperate about the mounting arrears of cases, creating a backlog and resulting in unjust delays in disposing cases. But, much has changed as the Supreme Court strives to resolve the problems with or without reference to complete justice.

The big bugbear for the Supreme Court is the special leave petition (SLP) which the Constituent Assembly hoped would be used sparingly, but which now dwarfs the work of the court. There are also problems as to the quality of justice.

Indian courts have been plagued with arrears for more than a century. The Rankin Committee examined the issue in 1925, the SR Das Committee in 1949 and the Shah Committee in 1972, and described the problem as overwhelming but felt good judges would resolve it. The law commission examined the issue in its 14th report (1958) and 58th report (1974).

Working

The latter discussed zonal courts in between the high courts (HCs) and the SC but did not take the suggestion further. There are several other law commission reports which need not trouble us. Except for an elementary time and motion study in 1985, there has been no systemic study of the internal working of the court. This has led to variations transiting from one chief justice of India (CJI) to the other.

Recently, the solutions of the Lodha Court, Dattu Court and Thakur Court have been markedly different. The Lodha Court strengthened the court. Dattu was very keen on systematically dismissing cases, himself. Thakur, once pensive, presides over a dismissing court. State the issue, feel the axe. Thakur is also right in constituting pending three and five judge benches for cases pending for years. Although right in principle, the court has been put on a super-fast track mode, barely leaving time for good preparation and contemplation.

What are the solutions for the SC? The hatchet is one approach. Even in the 1990s, justice Mohan was entrusted with the task of disposing off cases speedily which he did invariably in favour of the landlord!

The second method has been off-loading: to deal with the case by diversion or remand to the HCs. This results in increasing the load of high courts and a random pick and choose.

The third is to deal with jurisdiction: abolish the SLP which has made the court a third court of appeal. Even at SLP admission stage (when the SC decides whether to hear the case) 40 per cent of the Court's time is consumed and lawyers make crores.

This is a whimsical jurisdiction different from bench to bench. It is also the Supreme Court's roulette wheel. Take this jurisdiction away? "Never" say the lawyers! A variant of this argument is that: let these cases not be heard in open court but by circulation amongst the judges. "No" say the lawyers.

Justice

The judges cannot be trusted without our advice. Of course, lawyers often draft SLP's badly relying on oral arguments - for an unequal mixture of money and justice.

The plea for better assistance for judges through law clerks is a mixed failure. In a patent case in the Delhi High Court, justice Nandrajog's law clerk (LCs) had simply copied passages from an English journal.

Did the judge review his decision? No. He simply excised most of the paragraphs leaving crucial ones in. In the Supreme Court, I accidently saw an LC's prepared draft of an important case.

Divisions

The CJI scored out three paragraphs. The clerk's draft prevailed. At least two CJI's could not dictate orders in court and whose judgments must have been written elsewhere. One solution is that the SC be organised in divisions (constitutional and public law, civil, criminal) as is done elsewhere (my solution).

This did not find approval. The new proposal (a KK Venugopal suggestion) has been put on the agenda judicially by the CJ bench in Vasantha Kumar's case in mid-March (2016) for either an intermediate court of appeal or the Supreme Court sitting in appeal outside Delhi. Why?

It is said that HC decisions are often terrible and justice demands that one more court examine them as a filter, so that the SC's workload is reduced. As far as sitting outside Delhi is concerned, the Constitution allows this with the consent of the president (Article 130). But will the SC judges be divided temporarily or permanently into Delhi and circuit judges?

This will create the problem of funding the judiciary. Any new solution will require funds sanctioned by the government. It is easier for legislators in Patna to get microwaves and suitcases. The judiciary is not a good financial negotiator.

Along with this is the issue of quality of judges. One aspect is that judicial salaries are unattractive low! The Ravi Dhavan committee reported to the CJs conference years ago that the retiring ages of HC and SC judges should be the same. This is a sound solution which will better the Supreme Court. Quick disposal is a good goal. But speedy disposal is compromising justice. This is as corrupting as corruption itself.

(Courtesy of Mail Today.)