Use lean time for innovations

The courts are experiencing an agonisingly lean period due to the coronavirus. Several judges are unable to dispose of long-pending cases due to poor videoconferencing facilities and lack of digital skill. In the Supreme Court, one-third of the judges are not hearing cases at a given time. This idle time could be used for devising in-house solutions afflicting the judiciary, like the notoriously mounting arrears and the impending torrent of new suits once the pandemic subsides. But in the five lockdown months the top legal brains have not devoted time for a brainstorming session. More such barren months are likely to follow, giving ample opportunity to collect data on the pile of dockets, and analyse them to think of solutions within the system like drastic review of procedures and conventions that create logjam.

Though the SC is supposed to be a constitutional court, cases involving the Constitution are fewer in number compared to those involving mundane matters like landlord-tenant disputes, promotions in service or partition of family property. Last year, the then chief justice, Ranjan Gogoi, showed one way to cut the Gordian knot in the Enron-Dabhol corruption case. He just closed it observing that it was 17 years old. No one complained. He knew that time can wipe out any scar from public memory.

According to the Supreme Court website, there are 19,492 cases ready for final hearing, many of them for nearly two decades. While the country is experiencing an economic crisis, the number of such tax disputes is astounding. Among them, direct tax appeals are 2,431 while indirect tax appeals number 2,288. The earliest direct tax appeal dates back to 1992. The disputes in these cases might have started its grinding journey from the tribunal, appellate body, then the high court, at least a decade earlier. 
 

Tax law has changed drastically over the decades, making the legal issues irrelevant. The assessees might have lost interest in the litigation or even become extinct.

According to a CAG report on direct taxes (2017-18), there were 82,643 cases pending in various courts locking up Rs 442,825 crore. The share of the Supreme Court is 6,224 cases involving Rs 11,773 crore. The 39,066 cases pending in high courts have trapped Rs 196 lakh crore. The chances of the revenue department winning their appeals are very narrow. Economic Survey 2017-18 showed that the authorities lost 87 per cent direct tax cases; 73 per cent in Supreme Court alone. Since they involve taxpayers’ time and money, these cases should be selected and terminated at the earliest.

Apart from this cross section of economic cases there are constitutional questions ready for final hearing by larger benches: 90 appeals by nine-judge benches, 12 by seven-judge benches, 113 by five-judge benches and 376 by three-judge benches.

Chief Justices have administrative discretion to choose the cases for disposal, their timing and the combination of judges to hear them. Since virtual courts are here to stay, many old cases can be transferred to them. A major policy decision for the CJ in the coming days would be the division of cases that will go before the physical and virtual courts. Those which involve substantial questions of law must get priority in view of the critical situation. Hundreds of dog-eared dockets could be delivered the Gogoi-like blow by consigning them to the realm of memory. Many litigants might not mind compromising their claims and bowing to their destiny.

Another related step is to lay down guidelines on listing of cases. Much of the recent criticism against the court could have been averted if certain transparent norms were in place. Judges on the verge of retirement should not be given important cases. In the Kesavananda Bharati case, for instance, Indira Gandhi hurriedly wanted to reverse the earlier ruling on fundamental rights. Her shenanigans at the backstage involving pliable judges were graphically recorded later by several authors. In the Ayodhya case, one of the contentious issues argued by lawyers in the CJ’s court was when to hear it — before or after the 2019 general elections. If there were well-defined criteria on listing cases, chronologically for instance, there would be no need for wrangles over the timing of the hearing. Unfortunately, successive CJs have avoided developing a trustworthy system. Perhaps they enjoyed the unfettered discretionary power in their hands. Or they were handicapped by short tenures which discouraged them from venturing into long-term solutions at a time when they look forward to their own future. Therefore, the initiative for changes should now come from the bar which is an equal stakeholder.