Mumbai: When Chief Justice of India S.H. Kapadia started his term in May 2010 it was widely reported that he didn’t take the traditional May-June court vacation but worked through it, aiming to look at ways of reducing the time it takes to hear cases and making the Supreme Court administration more efficient.
By May 2011, the number of pending cases at the apex court had indeed decreased by almost 500 to 54,547. This reversed a trend that had begun in 2008, when 46,374 cases were pending and then steadily had grown by around 10% year-on-year.
In the second year of his term, those gains have been more than just erased: the tally of pending cases in the Supreme Court has exceeded 60,000 for the first time in its history. At May end it stood at 61,876, 13.4% more than the May 2011 total.
The number of unresolved cases older than one year has increased to 40,658 from 35,909.
“When you start a process it goes with a momentum that is a much higher one,” said senior advocate Pinky Anand.
Kapadia started off well and the systems he introduced made a difference in the speed of administration and pending cases, she said. “But we manage to dampen systems one way or another (and there is) obviously a lot of opposition to some dramatic changes— somebody is always benefiting from the old system.”
There is also a personnel issue to be considered.
The last 12 months have seen several retirements at the Supreme Court. Ten justices reached their retirement age of 65 or otherwise left—starting with justice B. Sudershan Reddy in July 2011, justice Markandey Katju and justice R.V. Raveendran in September and October respectively, and ending with justice Dalveer Bhandari, who became a judge at the International Court of Justice after April 2012. There have been more retirements in less than one year than there have been in the three years before.
Reddy’s departure in July was also preceded by an 18-month period when not a single judge retired after justice Tarun Chatterjee did so in January 2010.
Managing this unusually large exit of experienced judges and replenishing the ranks falls to the chief justice and a collegium of judges, as so many other things do. While Kapadia’s collegium managed to appoint eight new judges in 2010-11, this still puts the Supreme Court bench strength, including himself, at 27, two short of where it was at the start of 2011, and four below its sanctioned maximum strength of 31 sitting judges.
Although retiring judges often have a habit of wrapping up cases and delivering judgements that may have been on their plate for a while, helping clear the case mountain slightly, the acclimatization of new judges and the handover period can add up to an administrative nightmare. While the debate about further increasing the retirement age of judges continues—“a judge is not a football player”, justice Asok Kumar Ganguly said after he retired in February—the timing of those departures and how much they coincide comes down to luck of the draw.
There seem to be other fundamental issues at play as well. Decreasing the pendency of cases in the apex court is no doubt a difficult task, acknowledged Anand, but she added that “the system itself has certain inbuilt deficiencies”.
“One very strong feature is that every matter seems to come to the Supreme Court,” she said.
Senior counsel K.K. Venugopal noted that the Supreme Court has effectively become a court of appeal, correcting errors of facts or law of lower courts. “This is not the proper function of the apex court of a country. And with the large population and enormous litigation starting with the subordinate courts or the high courts, the Supreme Court gets bogged down with huge arrears.”
Indeed, the statistics show that the number of fresh cases that reach the Supreme Court is huge—8,368 in January alone. There were only two months in the last year in which the court managed to dispose of more cases than flowed in (in July 2011, the month Reddy retired, 9,342 cases were disposed of by the 29 judges: more than 300 per judge, which equates to an average of more than a dozen cases dealt with per day in July’s 25 court working days).
As it stands, the Supreme Court has to keep fighting that wave of incoming cases and perceived injustices meted out by the lower courts just to stand still on the pendency count, while trying to answer questions of constitutional importance too along the way.
Every Monday and Friday at the supreme court are so-called “miscellaneous days”, or days on which all the judges hear fresh cases and decide which to admit into the queue for a “regular hearing” and which ones should be “dismissed” forthright.
Miscellaneous mornings are usually a hectic flurry of advocates, petitioners, hearings and dismissals, while a few courts might hear special cases in the afternoons. On Tuesdays, Wednesdays and Thursdays, judges hear the actual cases, full-time. In regular hearings where the court has to answer a substantial question of constitutional law (the original raison d’etre of India’s Supreme Court and the top courts of most countries), the case will usually be heard by the constitution benches convened by the chief justice and consisting of five or more judges.
The cases without constitutional significance are usually heard by two judges.
Other complex or technical cases such as the Vodafone tax dispute, for example, may also come up before a three-judge bench. Sometimes this happens by design or the reason can be as prosaic as not being able to find one of the 15 court rooms free for hearings. Constitution benches and key cases effectively occupy several judges for months at a time, preventing them from disposing of more routine cases on regular hearing days.
“It’s definitely to do with the constitution benches,” said additional solicitor general and senior advocate Indira Jaising about the reason for the increase in pendency, citing the right to education case that was heard for two months and more by a bench of three, the Vodafone-Hutch tax case that was heard for two months by Kapadia and two others, and the 2G case that kept two judges busy for nearly four months in total.
“In an ideal system there has to be a system of prioritizing of cases and you need to have a rational basis on which you hear certain cases before you hear other cases,” said Jaising. “The prioritization is not always visible and quite often cases which are high profile do get priority.”
Some advocates and sections of the media, meanwhile, expressed puzzlement when a five-judge-bench headed by Kapadia spent several weeks since 28 March examining whether and how the media’s reporting of court cases should be regulated. But the judgements that emerge from such constitution benches are usually the ones that make the big headlines, and often, as in some of the above matters, they can have huge economic or social repercussions.
The difficulty is that the chief justice and the Supreme Court’s balancing act between disposing of the old routine appeals, and keeping up with the new, while continuing to preside over the revolutionary, has become nearly impossible. In theory, a constitution bench can also have an effect on pendency.
The Bhatia International five-judge-bench that held 10 days of hearings in January was formed to settle the law relating to Indian courts’ role in foreign arbitration awards, an area that has long been at the heart of a few other currently pending cases.
One lawyer relates how several thousand pending cases are connected to the jurisprudence of the five-judge constitution bench in the 2006 Jindal Stainless Steel case over whether states can impose an entry tax on goods. Then, in 2008, a two-judge bench (also including tax-expert Kapadia before he became chief justice) in the Jaiprakash Associates case decided that the law relating to entry tax was not settled after all, and that another constitution bench should look at the matter again. This time, in order to have the power to overrule the five judges of the previous bench, it will have to be a nine-judge bench. It is unsurprising that to date it has proved impossible to schedule nine judges to sit together and pay concerted attention to this complex case, without being interrupted by a retirement or stalling other matters.
Indeed, due to modern-day time constraints, constitution benches have actually become a relative rarity. “While the (Supreme Court of India) averaged about 100 five-judge or larger benches a year in the 1960s, by the first decade of the 2000s, this had decreased to about nine a year,” noted February 2011 research published in the Economic and Political Weekly by Nick Robinson and others. “Viewed in this light, despite deciding about 5,000 regular hearing cases a year in the 2000s, the Indian Supreme Court arguably produces less jurisprudence involving substantial questions of constitutional law than a court like the United States Supreme Court, which wrote just 72 judgements in 2009, but whose cases often involved such questions.”
“This is not a simple question which has a straightforward answer,” said senior advocate K.K. Venugopal. “Many committees have sat on this issue for decades and, as we have seen, nothing has worked so far.”
Also See | In Queue (PDF)
Also Read | The Briefing on possible solutions to the pendency problem.
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