The Supreme Court judges returning to work in a few days after a long break have enough challenges to drain their energy gained from cooler climes. It is not just the insurmountable 65,000-odd cases before them, which has become the new normal. This time they have to take a stand on the brewing strife with the government, on a scale not matched since the aftermath of the Kesavananda Bharati judgment in 1973.
The process of appointment of judges in the Supreme Court and high courts is the new point of conflict, which involves independence of the judiciary and comity between it and the executive. The court had struck down last year the National Judicial Appointments Commission Act, asserting that judges will select judges through a collegium of senior judges.
But in an unwise move the court left it to the government to prepare a “memorandum of procedure” for selection. This gave the government a handle to assert its role by insisting that if it did not approve of a judge for elevation, that person should not be appointed. It also wanted the attorney general and the advocates general of the states, usually government nominees, on the selection panel. The government has since rejected the collegium nominees in several cases. The court has pushed the files back at the government, stalling appointments to fill 458 high court vacancies.
Since the Chief Justice has declared that the country needs 4,500 judges to clear the 30 million cases now pending, and the law minister questioning the basis of the calculation, the difference of opinion is holding up selections in the rest of the courts. The law minister has also declared that the number of tribunals will be slashed from 36 to 17. The experiment of creating tribunals to ease the burden on regular courts seems to have failed, with the governments failing to provide funds for infrastructure and appointing judicial members and staff in them.
Meanwhile, there are several issues waiting for answers, some of them pending before Constitution benches for years. One of the oldest is the challenge to the 25th amendment to the Constitution and the status of the right to property. The definition of “industry” in the Industrial Disputes Act has also been awaiting a decision for about a decade. The property suit over the place of worship in Ayodhya seems to have been archived.
In the absence of official data, it is guesstimated that some 50 Constitution bench matters, which require a minimum of five judges, are in the queue. The court has adamantly refused to disclose the number of cases referred to other larger benches. In February, the court dismissed a plea to maintain data on its pending judgments and make the information public under the Right to Information Act. When the law ministry asked the 24 high courts to publish annual reports on case data, only eight reportedly responded.
The present Chief Justice has set up Constitution benches on two days a week, and they are expected to deliver a series of judgments in the next few weeks. Some of them are of great public interest, like the ruling on the Arunachal Pradesh imbroglio dealing with the powers of the governor and the Assembly Speaker when the government loses the numbers game. There was a marathon hearing in the corruption case against Tamil Nadu Chief Minister J Jayalalithaa and the judgment is awaited. The court is expected to clean the Augean stables in the Board of Control for Cricket in India. The court’s response in the presidential reference relating to the bitter dispute between Haryana and Punjab over sharing of water is also being watched keenly.
Apart from the judgments, the court is expected to resume hearing on hotly contested issues such as the fate of diesel vehicles, the Reserve Bank of India’s resistance to disclosure of names on the non-performing assets list given to the court, the revenue authorities’ appeal in the Vodafone transfer pricing case, further perils of Sahara boss Subrata Roy, the two-decade-old Uphaar fire case and whether citizens have the right to privacy — an offshoot of the Aadhaar litigation.
As the top judiciary stirs itself to start another busy season, it has to face challenges from two flanks: the unpleasant stare of the government on selection of judges and the ever-mounting dockets.
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