If the courts do not deliver decisions within a reasonable time, important reforms could be stalled.
When the Supreme Court judges return from cooler climes this week, they will find that the number of pending cases has risen further from 50,000 despite four vacation benches hearing ‘regular’ matters. The vacation benches have not been able to clear more than 50 such old cases, while the new filings are in hundreds. Several Constitution-bench cases, heard months ago, are yet to be disposed of, and five vacancies are yet to be filled.
In tax matters, appeals that are now being heard are those of assessment years that go back to the early 1990s. The tax bench recently told the assessees that it would not hear their appeals unless they deposited at least half of the disputed amount. The government is losing revenue because of prolonged litigation and it cannot be run by bank guarantees.
Some important cases heard by the Constitution benches months ago are still awaiting judgement, stalling reforms in the law. The most prominent among them is the appeal of the Central government against the Madras High Court judgment, casting doubts on the legislative competence of establishing the proposed National Company Law Tribunal. The tribunal was proposed to take over the functions that are now being performed by the Company Law Board (CLB), Board for Industrial & Financial Reconstruction (BIFR), Appellate Authority for Industrial and Financial Reconstruction (AAIFR) as well as by the high courts in winding-up companies.
Recently there has been intense debate on the trend of ‘tribunalisation’. The question is whether the power of the judiciary can be transferred wholly to the tribunals, often packed with retired bureaucrats. The controversy delayed the establishment of the Competition Commission of India for years. The Company Law Tribunal is facing a similar impediment. The case against it started in the Madras High Court in 2003 and wound its way up to the Supreme Court where the hearing was concluded in January this year.
The Constitution bench felt that the issues involved are seminal as they are likely to have a serious impact on the very structure and independence of the judicial system. Having said so and heard all parties, the judgment is yet to be written. This delay in delivering judgments is something which the Supreme Court itself has criticised in the case of high courts. In one of its judgments, it suggested certain steps to mitigate this problem: If the judgment is not delivered within two months of closing the hearing, the parties may send a reminder to the Chief Justice after two months; if there is no decision after six months, the case may be removed from the bench which heard it; and if the delay is of several years, the judgment itself may be set aside for that very reason and it should be re-heard. These observations were made by the Supreme Court in cases like Bhagwandas Fatechand vs HPA International (2000) and Kunwar Singh vs Sri Thakurji Maharaj (1995).
Sometimes the judges wake up and write judgments only when they have only a few days to retire. The Supreme Court, in Anil Rai vs State of Bihar (2001) said so and commented further: “If delay in pronouncing judgments occurred on the part of the judges of the subordinate judiciary the whip of the high court studded with supervisory and administrative authority could be used and it had been used quite often to chide them and sometimes to take action against the erring judicial officers. But what happens when the high court judges do not pronounce judgments after a lapse of several months, and perhaps even years since completion of arguments? In recent times, there has been slackness on the part of a few judges of the superior courts with the result that once arguments are concluded before them the records remain consigned to hibernation. The 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.” The irony is that the Supreme Court itself has often committed the sin which it commands others not to do.
There is another set of cases, going back to the 1990s, which has been referred to larger benches but not heard since. Some of them are more recent but raise emotive issues like the status of the Aligarh Muslim University. The larger bench was supposed to hear it in January last year, but it is still not even listed. No one but the court can be blamed for these delays. Litigants would wish there was a 100-day target for the courts as well.
