CJI Khehar is a short-term judge, his short cuts are dangerous for Supreme Court
The Supreme Court and high courts have a huge problem of pending cases and the problem is not new. In 1925, George Rankin found that the high court was flooded without remedy. This was examined by the SR Das committee (1949), the Shah Committee (1972) and Law Commission in its 14th, 44th, 48th, 58th; and more recently the 245th Report (2014) on “Arrears and Backlog: Creating Additional Judicial (wo)manpower”.
Challenge of arrears
The challenge of arrears has proven to be formidable. The reason for this is the “carry forward” from one year to the next. Even if the carry forward is 10 per cent, the cumulative effect can be massive. The Supreme Court has earlier been cagey about disclosing the problem. Today, the Supreme Court published data on its website but it is far from complete or incisive.
The date for April 2017 puts the arrears at 62,161 from previous month, 6,333 registered in the month while disposal for the month was 5,588. We can see how cumulation takes place. But the Court further disguises its arrears by saying the pendency on March 31, 2017, is really 34,499 because the rest are bunch matters. But, if only 17,453 matters are more than a year old, what’s the problem?
Many attempts have been made to reduce pendency in the Supreme Court. In the early 90s all rent cases were sent to a negative judge who decided all in favour of landlords. More recently Chief Justice Dattu took all “bunch” land acquisition cases and disposed them off with expedition. On one afternoon, he ran through a whole list not permitting counsel to argue.
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| Many attempts have been made to reduce pendency in the Supreme Court. |
Bunching of cases is a good idea but often fails miserably. Recently, "reservation" cases went to three different benches taking a few months to sort this out. One sitting judge avowedly says he does not read all the bunched cases; but disposes off the case cursorily on a foundation point.
Some judges are negative and known for "quick" dismissals to leave the bar and clients frustrated. This is the dark side of the Supreme Court’s functioning: Disposal before justice.
Should the full court work during vacation? Some argue that the Supreme Court should have a small two-week window for vacations. Another suggestion is that judges could stagger vacations during the year with the court functioning throughout the year.
The Khehar solution works towards a functioning vacation Supreme Court although, it is limited to the extent of 19 judges working full time in the first instance in the first part of the vacation.
First, the vacation idea is far from new. The Supreme Court has always had one or two benches in the vacation to deal with urgent and other matters. Second, matters could specially be placed before the vacation provided lawyers and their clients “consent”.
Third, Khehar has initially asked for consent but later imposed three constitution benches (five judges) to decide important question of law – one of which is the triple talaq issue.
The vacation solution
Attorney General Mukul Rohatgi and Kapil Sibal protested. I was asked to appear in the "triple talaq" case. I earnestly wanted to but I don’t work during vacations. Fourth, Khehar’s move has inspired a controversy that the vacation itself should be scrapped. He does not say so. But public opinion has latched on the Khehar’s idea so that it be expanded.
The "Khehar Express" may be politically enlarged because politics and bureaucracy want the judiciary to be portrayed as inefficient and lax. The political and other voices for 365-day higher judiciary (except national holidays and weekends) is based on inherent flaws.
First, MPs have long holidays and short sessions. The reason is obvious: meeting constituents (which many do not do), committees (only some) and so on. Holidays for MPs are essential, given the intensity of sessions and their work. Second, the mistake is to compare judges with bureaucrats.
The latter claim to be superior. But the judicial process is not bureaucratic. The higher judiciary is the custodian of the rule of law which along with democracy is fundamental for the Constitution’s work. Judges are not bureaucrats. Third, judges are not decision makers but expected to be wise.
Judges, not babus
Jurists Justice BK Mukherjee’s lectures on religious endowments are a classic. Gajendragadkar and Krishna Iyer’s extra judicial outputs are relevant to law and other things. The late lawyer Krishnamani wrote on Hindu philosophy during the vacations, as did Shankar Ghosh on history and ideas. Nariman’s commitment to constitutionality are beyond his work inside the courtroom.
The vacations are a time for creativity for both lawyers and judges. Fourth, the judicial process of the SC and HC is far more intense than people imagine. Lawyers conferences, the preparation of cases, their adjudication, hearings and judgments is onerous. It is to the credit of India’s judiciary that this intense process is, by and large, preserved even after so many years.
The spring, summer, autumn and winter breaks are essential unless you want a neurotic judiciary supported by fatigued lawyering. Justice Khehar is a short-term Chief Justice who wants his name in history. But his short cuts will destroy the constitutional functions of the Supreme Court and the high court.
(Courtesy of Mail Today.)