Line-up for the last word

The Supreme Court must set norms for picking cases out of turn

India is said to have the longest Constitution (140,000 words), which is the most amended one (101 times), and a Supreme Court which is far more powerful than in any other democracy. One would add that it has the most powerful chief justice on the administrative side, though he is one among the 30 equals in adjudicatory jurisdiction. This year’s events starting with the news conference by four senior judges in January showed how critical this power is. The dissonance died down with a constitution bench pronouncing that the CJ is the Master of the Roster.

In that position,  the CJ can allot cases to specific benches, pick out cases for early hearing or keep dog-eared case files in wraps in the store room right under his court room, change rules of procedure and preside over the powerful collegium which recommends judges for elevation to writ courts. 

The controversy over the discretionary power to assign cases to the  benches of CJ’s choice was partly defused recently when cases were classified according to their subject. According to this subject-wise roster, cases would automatically be listed before the specified bench that deals with such matters.

However, the unease about the choice of cases taken up for early hearing has become a cause for bitter discord, leading to fisticuffs before a celibate deity and the far right losing patience over delay in settling the dispute over Ayodhya land. How did the Sabarimala case get priority and why was the Ayodhya appeal shunted to the next year, only to fix a date of hearing? How did the relatively new cases dealing with LGBT, filed in 2016, decriminalising adultery (2017), politicians with criminal record (2011) get precedence when an estimated 700 plus constitution bench cases are pending? Why was the legality of the Central Bureau of Investigation as an institution not examined though the Gauhati high court had ruled years ago that it has no legal status? A decision on this appeal hurriedly moved by the then Attorney General could have been a game-changer in the current internecine battle. No one raised these concerns before the former CJ who passed a series of historic decisions in the last four days of his tenure. He had exercised his discretionary powers to accelerate certain cases and decelerate some others.

If the court had followed the chronological order, or declared a policy explaining why some cases are lifted out of the line-up, it could avoid criticism on this count. There are several cases that should be heard by five judges or more, some by at least nine judges. Some of the questions are decades old, like the definition of industry in the Industrial Disputes Act. A five-judge bench referred it to a seven-bench which then referred it to a nine-judge bench observing the decision would have “serious and wide-ranging implications.” A 1996 case pertaining to property rights in the Constitution was referred to a constitution bench, but has fallen off the radar. There is another forgotten appeal dealing with the power to control liquor trade. 

While such important questions have apparently been shelved indefinitely, the temptation is to cherry-pick the more topical ones, and get embroiled in politically combustible issues. The government finds it convenient to throw such hot potatoes into the lap of the judges. Instead of picking them up, the court must stick to a chronological schedule in disposing cases. If that was done, many other cases would have taken precedence over the Ayodhya suit of 2010. As it is, nobody knows when a case two decades old would come up for final hearing. Meanwhile, the ‘undertrials’ spend more time in prison than the maximum sentence prescribed for their alleged offence.

This is a rare time in recent history of the court when 28 judges out of the full quorum of 31 are available. They are sufficient to dispose of old constitutional cases. Sittings by the constitution benches have been declining steadily over the decades. In the first half of 1960s, the court disposed of 134 such cases. In 2005-09, according to a Harvard study, the average plunged to 6.4. This trend is continuing partly because there are no known guidelines in prioritising cases. The judicial reforms promised by the new CJ should set and declare norms, ending the haphazardness and unpredictability.