It is entirely unquestionable that Supreme Court is the highest court of the land in India as is in the case of any other country. No doubt, the Supreme Court also called Apex Court is termed by many as “final but yet not infallible”. It is also true that the Apex Court has usually always been widely applauded for its learned, laudable, landmark and creditworthy judgments but since last couple of years we do keep hearing repeatedly that deserving cases in Supreme Court also don’t get listed in time and keep pending for a long time and not so deserving cases get listed most promptly when backed by eminent law firms and senior lawyers which is definitely a matter of grave concern as it directly dents the image of the judiciary in the eyes of the people!
Needless to say, one felt totally gobsmacked on going through the extremely commendable, learned and enlightening editorial titled “Justice delayed is justice denied : All is not well in the Supreme Court” written by none other than one of the most distinguished, eminent and senior lawyer and former President of Supreme Court Bar Association – Dushyant Dave who has been practicing since last many decades with utmost brilliance in the top court in the well known web portal “Bar and Bench” dated January 6, 2022 in which he lays bare how the functioning of the Registry of the Supreme Court needs closer supervision and control and needs to be seriously reformed fundamentally. Even the worst critics of Dushyant Dave will agree that whatever he has written in this enlightening editorial carries a lot of weightage and has to be taken most seriously as it directly concerns the manner in which the Apex Court and its Registry functions! If the concerns that he has voiced are not addressed even now then we have to blame ourselves for the delay in justice delivery that we see so very often also even in the top court itself!
At the very outset, Dushyant Dave points out in his enlightening editorial that, “At the function organized by the Supreme Court Bar Association (SCBA) to bid farewell to Justice Subhash Reddy on his demitting office, the Judge made some poignant and sobering remarks about pendency of cases. He said, “Deterioration of human values had its impact in rising cases and crimes. All courts have a huge backlog of pending cases, every year this backlog swells in size due to an increase in cases.” He further also very rightly added, “…Time consuming procedures, civil or criminal, prescribed in the 19th century for the trial of cases in the pre-industrialised society, need to be modernised to suit the needs of modern society….Unless we come up with comprehensive planning and give timelines for disposal of cases, the present system may not work for the present and future needs. This is high time for all stakeholders in the system to think seriously to bring drastic reforms keeping in mind the present day needs of the society.” “…Unless we come up with comprehensive planning giving timelines for disposal of cases, the present system may not work for present and future needs. It’s high time for all stakeholders to think seriously to bring drastic reforms keeping in mind the present day needs of the society.” His warning applies to all courts, including the Supreme Court. All is not well in the Supreme Court. The Court is clearly showing that justice delayed is justice denied. This despite the fact that the Court itself has held in a number of cases that speedy justice is part of the Right to Life guaranteed under Article 21 of the Constitution of India.”
It must be underscored that the Apex Court too must seriously ponder over what Justice Subhash Reddy who is himself a Supreme Court Judge and so also a senior and eminent lawyer of the Supreme Court Dushyant Dave says on this! It cannot be glossed over under any circumstances! It merits no reiteration that if Supreme Court even now acts in time, it can still make a world of difference in its own functioning as also the functioning of the Apex Court Registry which is incumbent also to fast track the manner in which justice is imparted in the top court itself!
Preferential listing of cases
Abhinand Lagisetti who is a second year law student at the NALSAR University of Law and is an editor and contributor to the Nyaya blog which is a forum for courtroom lawyering most meticulously and most elegantly mentions in his enlightening editorial titled “The Supreme Court Registry: A Puppet Of The Powerful” dated July 9, 2020 that, “Unlike the selective allocation of cases, the responsibility for the alleged preferential listing of cases lies solely with Registry. As mentioned earlier, as per Order 3 Rule 7 of the 2013 Supreme Court Rules, the Registry is mandated to publish a ‘terminal list’ of all cases ready to be heard in that particular term and it is from this list that the schedule for each week is published. However, it has been contended that the Registry tends to favour certain high profile cases involving powerful people and expedites their date of hearing at the cost of other cases that are pending. In a recent interview, Retd J Deepak Gupta stated from his personal experience that cases involving ‘big money’ and ‘fancy law firms’ seemed to get priority in the listing. He further stated that such high-profile cases are listed exactly in four weeks whilst cases involving low profile parties were not listed for six months despite the court’s orders to list their cases in four weeks.”
To say the least, if this is not a complete mockery of justice, impartiality and equality then what else is? How can all this happen right under the very nose of the Apex Court itself? Why has the Apex Court allowed all this nonsense to happen with impunity? This is just not done!
It cannot be dismissed lightly that none other than Justice (Retd) Deepak Gupta of the Supreme Court with an impeccable track record is himself on record as mentioned in The Hindu newspaper dated May 6, 2020 to state that the laws and legal system are geared in favour of the rich and powerful. He minced just no words to say that, “It was the poorest of the poor who suffered the most during a crisis like the COVID-19 pandemic. It was the underprivileged who needed the attention of the Supreme Court now more than ever. A humane and compassionate judiciary was the need of the hour, he said. Judges could no longer afford to live in ivory towers.”
In his farewell speech, Justice Deepak Gupta had candidly said that the system usually went into a tizzy if a rich person was put behind bars. Applications for his bail and expediting his trial were filed repeatedly in the superior courts. His case was heard at the cost of delaying the case of the poor litigant. The poor too had a right to life and dignity. The judiciary needed to hear and help them.” Who can deny or dispute this? Just no one!
Furthermore, Justice Deepak Gupta then also hastened to add that, “This Court has a duty to ensure that every citizen of this country lives a life of dignity and is not deprived of the right to life… In times of a crisis such as the one we are living in, the courts must protect the poor and the underprivileged, because it is they who are hit the hardest in trying times. When the court does its duty and acts in favour of the citizens, sometimes there will be friction, but a little friction is a healthy sign that courts are functioning properly.” He reminded his fellow judges that there was “no alternative to a totally independent judiciary” in a country which followed the rule of law. He also very rightly underscored that, “The integrity of the judicial institution could not be put at stake under any circumstances. The Constitution is our Bible, Quran, Gita, Guru Granth Sahib…”
It cannot be glossed over that Dushyant Dave then also underscores in the same editorial mentioned hereinabove that, “Judges across the country, from the subordinate courts to the highest court, work extremely hard and in most trying circumstances. The pressure of work on them is immense. They deserve the nation’s unbounded gratitude and affection. Yet, a debate must take place on this sensitive and critical subject. On April 1, 2020, the total number of cases pending in the Supreme Court was 61,142. Out of these, 41,286 were admission matters while 19,856 were regular hearing matters This figure jumped to 67,279 as on April 4, 2021, 48,415 admission matters and 18,864 regular hearing matters pending. The trend continued to become grim, because by December 6, 2021, the total number of pending cases rose to 69,855 of which 51,503 were admission matters and 18,352 were regular hearing matters. Clearly, the Supreme Court has not been able to handle its case load efficiently during the COVID-19 pandemic. This is further aggravated by the fact that between April 4, 2021 and December 6, 2021, the number of complete admission matters (miscellaneous) virtually remained stagnant, increasing from 35,615 to 37,077, while the ready regular hearing matters figures reduced slightly from 18,793 to 18,285. In addition, 50 main matters and 372 connected matters are yet to be heard by Constitution Benches of 5, 7 and 9 judges. Some of the most crucial matters having far-reaching implications not just to the nation, but also to its citizens and certain sections of citizens, like the challenge to the abrogation of Article 370, the challenge to the Citizenship Amendment Act, the challenge to demonetization, validity of anti-conversion laws, challenges to the Electoral Bond scheme, the National Register of Citizens (NRC) case, amongst others, remain virtually ignored. There can be no reason whatsoever why such important matters pending for hearing, including those before Constitution Benches, are not being heard. I have personally known a number of matters where despite specific directions by different benches for listing matters on specific dates, the same have not been listed by the Registry for reasons quite unfathomable to those who are familiar with the Court and its functioning. Many lawyers during discussions in the corridors of the Court have been bitterly complaining about their important matters not being listed for no reason. The functioning of the Registry of the Court needs closer supervision and control and needs to be seriously reformed fundamentally. Almost all the judges of the Supreme Court today are from various High Courts. The others who are directly elevated are fully familiar with the functioning of the High Courts. In almost every High Court, as my experience goes, fresh matters upon being filed and cleared with the Registry, are listed for hearing in a day or two and matters with short dates post-notice, and would be heard and disposed off in a few months, unless admitted. The experience in the Supreme Court is quite the contrary, because even the most urgent matters are not being listed for weeks and months despite being “complete,” for no reason whatsoever. Repeated mentioning before the Chief Justice of India have failed to elicit any relief to litigants who need speedy justice. So, why is it that the Registry officials who also have had exposure to High Courts are unable to streamline the procedure in the Supreme Court? The pandemic prompted the Court to think and act out of box. Sadly, it failed to live up to expectations, especially during the tenure of former Chief Justice of India SA Bobde. The virtual platform used by the Supreme Court during most of the pandemic was fairly limited, if not outdated. It is only a few months ago that a different virtual system was installed. Even the present system poses serious problems. In particular, arguing lawyers are at the mercy of the court master who can switch their arguments on and off at their own sweet will. This has left arguing Lawyers bewildered, particularly at the end of the hearing, when they are not even able to make simple pleas. The system utilized by the High Courts appears to be much better and seems to have worked satisfactorily for over two years.”
It is beyond the cavil of any debate that prompt and effective changes must be made in which the Supreme Court Registry functions. Its unfettered discretionary powers must be curtailed on listing of cases before the top court. It merits no reiteration that Registry too must be made more accountable and if it lists cases out of turn then those who do so without any strong and compelling reason must be held liable and punished most severely!
Also, Supreme Court must have regional Benches with Constitution Bench at Delhi and four Cassation Bench in four regions at Delhi, Chennai/Hyderabad, Kolkata and Mumbai as was recommended by the 229th report of the Law Commission of India that was submitted on August 5, 2009. Thirteen years later we still see no action! So now is the time to act and not just ponder!
It is no ordinary matter that none other than the Attorney General of India – KK Venugopal himself proposed four benches of Court of Appeal – north, south, west and east – having 15 Judges each having same calibre as Judges of the Supreme Court! It has to be acknowledged that all is not well in the Supreme Court and in the functioning of its Registry and same holds for our penal laws also which are of colonial era and it is good to learn that Centre is contemplating on making serious changes in our penal laws to meet the present era! The same must be done urgently with the functioning of the Supreme Court Registry also as the functioning of the Supreme Court itself hinges on it and how it lists cases so that the poor, needy and the deprived gain the most from our legal system and not suffer most from it as we see much to our consternation most unfortunately!
Sanjeev Sirohi