The apex court has been going through a sea of developments on all fronts. Right from administrative aspects to the headcount, there’s a lot happening up there. Are we moving in the right direction? Or is it all nothing but a heavy baton ready to be passed over?
Yes, it is the same tomb of justice that a common man still looks upto with utter confidence, trust and hope for getting served with a full proof judicial process. No doubt, there have been several developments that have raised eyebrows in the recent times, the apex court still moves forth with all possible efforts and intention to prove its standing in the country’s judicial structure. However, the spree of incidents or should one say accidents does not necessarily stop! Here’s a bouquet of certain timestamps that continue to create a hustle at the court corridors.
According to separate Law Ministry notifications, justices Krishna Murari, SR Bhat, V Ramasubramanian and Hrishikesh Roy were appointed as judges of the Supreme Court. The Supreme Court Collegium had recommended their names to the government recently. This appointed has taken up the roll count to highest ever of 34 including the CJI. The sanctioned strength of SC judges was increased days after Chief Justice of India Ranjan Gogoi wrote to Prime Minister Narendra Modi to increase the number of judges in the top court.
According to a written reply by the Law Ministry to a Rajya Sabha question on July 11, 59,331 cases are pending in the top court. Due to paucity of judges, the required number of constitution benches to decide important cases involving questions of law were not being formed, the CJI said.
There have been several decisions by the apex court that have questioned the transparency in the manner the respective decisions have been taken. Whether it is elevation of the judges or transfers, there have been several questions about why those decisions would have been taken in a specific manner. The recent case has reached a level where the CBI has got the nod from Chief Justice of India (CJI) Ranjan Gogoi to take action “in accordance with law against Justice Vijaya K. Tahilramani, who recently resigned as Madras High Court Chief Justice, on the alleged adverse intelligence report about her.
The Collegium, also comprising justices S.A. Bobde, N.V. Ramana, Arun Mishra and R.F. Nariman, had recommended her transfer on August 28, after which she had made a representation requesting it to reconsider the proposal. She had protested against the Collegium’s decision to not consider her request against transferring her to the Meghalaya High Court. Lawyers in Chennai and in some places in her home State of Maharashtra had also raised banner of protest against the Collegium’s decision.
Later, the Supreme Court on September 12 said each of the recommendations for transfer of Chief Justices and judges of various High Courts was based on “cogent reasons”. Without naming Justice Tahilramani, a statement issued by the office of apex court’s Secretary General Sanjeev S. Kalgaonkar had said the reasons of transfer of judges were not disclosed in the interest of the institution but the apex court Collegium would not hesitate to disclose them in the circumstance it becomes necessary.
The Advocates’ Association of Bengaluru on Tuesday wrote a letter to Chief Justice of India (CJI) Ranjan Gogoi seeking transparency in the transfer of Judges. The letter came in the backdrop of the resignation tendered by the Madras High Court Chief Justice VK Tahilramani following a transfer order issued to her by the Supreme Court Collegium.
In a similar instance, the order pertaining to the transfer of Justice Akil Kureshi was recently modified by the Collegium. “When judges of constitutional courts resign under mysterious circumstances, or their transfer or elevation as chief justice is altered, it shakes the confidence of the public in the judicial system and throws up several uncomfortable questions to those in the decision-making body of the higher judiciary,” the letter stated.
The association asked Chief Justice Ranjan Gogoi to disclose the reasons behind the transfer of the two senior-most judges. The advocates raked up their concern over the opaqueness of Collegium’s decision-making process and asserted that the sudden change in the Kureshi’s order appeared to be at the ‘dictate’ of the Central government.
Justice Kureshi was first recommended to be appointed as Madhya Pradesh Chief Justice though later he was recommended as the Chief Justice of Tripura High Court. “The Central government, for political consideration, was indisposed to Justice Qureshi’s appointment at Madhya Pradesh,” the letter further contended. The association said that the Collegium is failing to act independently without “fear and favour”.
It said that the decision to transfer Justice Tahilramani’s “stank of political interference”. “The resignation of the chief justice is not a standalone event…one cannot lose sight of the fact that Justice Jayanth Patel of the Karnataka High Court had also resigned similarly,” it stated in the letter. The advocates also alleged that Justice KM Joseph, DH Waghela and few others were “treated in a similar fashion”.
The world’s first constitutional courts were set up in Europe — in Austria in 1920 and in Germany after World War II. Today, 55 countries have constitutional courts, including most European or civil law jurisdictions. In the early decades of the Republic, the Supreme Court of India, too, functioned largely as a constitutional court, with some 70- 80 judgments being delivered every year by Constitution Benches of five or more judges who ruled, as per Article 145(3) of the Constitution, on matters “involving a substantial question of law as to the interpretation of [the] Constitution”.
This number has now come down to 10-12. Due to their heavy workload, judges mostly sit in two or three-judge Benches to dispose of all kinds of cases; these include several non-Constitutional and relatively petty matters such as bans (or lifting of bans) on films, or allegations that a Commissioner of Police is misusing his powers. On some occasions, even PILs on demands such as Sardar jokes should be banned, or that Muslims should be sent out of the country, come before the Supreme Court. This heavy workload is due to the fact that India’s Supreme Court is perhaps the world’s most powerful court, with a very wide jurisdiction. It hears matters between the Centre and states, and between two or more states; rules on civil and criminal appeals; and advises the President on questions of law and fact. On the question of violation of fundamental rights, anyone can approach the Supreme Court directly.
The result: more than 65,000 cases are pending in the Supreme Court, and disposal of appeals takes many years. Several cases involving the interpretation of the Constitution by five or seven judges have been pending for years.
It has been pointed out that Article 39A says that “the state shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall… ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities”. It is obvious that travelling to New Delhi or engaging expensive Supreme Court counsel to pursue a case is beyond the means of most litigants.
Standing Committees of Parliament recommended in 2004, 2005, and 2006 that Benches of the court be set up elsewhere. In 2008, the Committee suggested that at least one Bench be set up on a trial basis in Chennai. But the Supreme Court has not agreed with the proposal, which in its opinion will dilute the prestige of the court. Article 130 says that “the Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.” Supreme Court Rules give the Chief Justice of India the power to constitute Benches — he can, for instance, have a Constitution Bench of seven judges in New Delhi, and set up smaller Benches in, say, four or six places across the country.
Does the recent deferring of hearing of all cases related to Kashmir matters mean that freedom is of dispensable merit? There have been even more serious situations where security aspects have been involved. However, it is a matter of surprise that the apex court has not only left the security point of view to take over human rights, but has not even pronounced the priority it would like to keep for Kashmir hearings. Whether it is the normalcy of governance or the life of a school going child, it is inevitable for the nation to understand that there would be no heed to the urgency of the attention of the apex court to the serious situation in hand.
On the contrary, there seems to be a very disciplined approach towards the Ayodhya matter where again there is no dearth of security aspect. This could probably be one of the most highly sensitised court proceedings that the country would be going through in terms of religious contradictions and disagreement of beliefs. Surprisingly, the apex court has infused all its efforts with spirit and intent to keep it at a very timelined approach. One wonders if such an approach should be applicable to all such cases.
The Supreme Court has set a tentative deadline for completion of arguments in Ayodhya title dispute by October 18. If this happens, this would give the bench roughly a month’s time to pronounce its judgment. For, if the Supreme Court bench does not decide the case before Chief Justice Ranjan Gogoi retires on November 17, the matter would be back to square one. As per convention, a Supreme Court bench that hears a case also delivers verdict in the same case. If a judge retires before the case is adjudicated, a new bench is constituted and the matter is heard afresh.
The Kashmir related hearings could have been easily and very effectively heard by 2 judge benches as well. The pile of petitions had to be merely distributed across benches for smooth and timely hearings. It is again a puzzling concern to know that the hearings would be taken up by a 5-judge bench including the Chief Justice.
Furthermore, there have been several instances where matters of utmost importance and sensitivities have reached a very progressive level, it is however surprising to see that the judgments are yet not delivered and are stalled ever since.
In the Sabarimala Case the apex court rendered a trend setting judgment which created a furore in the State of Kerala. Over 50 petitions were filed and it’s been over 7 months since, but the judgement is yet to be pronounced! Similarly, in case of Rafale Judgement, its been over 5 months now but inspite of the global sensitivities involved and noticeable personalities being a part of the matter, there’s been no urgency as far the final judgment being delivered is concerned. What at some time remained to be a very crucial election mandate, is now only being looked forward to with utmost eagerness and curiosity all across.
Since these were delayed by High Court Judges, the Supreme Court provides the following explanation when it comes to constitutionality and possible solutions for such delays. “The Constitution did not provide anything in that area presumably because the architects of the Constitution believed that no High Court Judge would cause such long and distressing delays. Such expectation of the makers of the Constitution remained unsullied during the early period of the post-Constitution years. But unfortunately, the later years have shown slackness on the part of a few Judges of the superior Courts in India with the result that once arguments in a list concluded before them, the records remain consigned to hibernation. Judges themselves normally forget the details of the facts and niceties of the legal points advanced. Sometimes the interval is so long that the Judges forget even the fact that such a case is pending with them expecting judicial verdict. Though it is an unpleasant fact, it is a stark reality”.
No doubt, the aforesaid mentions and many more of the sorts will need to be addressed to appropriately and at the right time. The apex court not only serves as a benchmark for the rest of the judicial environ of the country but should also have unison in place in totality. It is definitely a matter of worry when we see splits and difference of opinion amongst various levels of the judicial structure. The whole judicial fabric should pronounce their understanding and belief in a cohesive manner so as to have the nation’s hope and belief in place as always.
You would recall that way back in 1988, about three decades ago, the judge strength of the SC was increased from 18 to 26, and then again after two decades in 2009, it was increased to 31, including the CJI, to expedite disposal of cases to keep pace with the rate of institution. I request you to kindly consider, on top priority, to augment the judge-strength in the SC appropriately so that it can function more efficiently and effectively as it will go a long way to attain the ultimate goal of rendering timely justice to the litigant public, via a letter to the PMO.
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