The Supreme Court – Why Judges Are So Private?

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By moderator August 14, 2019 11:09

The Supreme Court of India, the top most court of the country, started functioning on January 28, 1950, from the Chamber of Princes in the Parliament House. The system was inaugurated just two days after India’s Constitution was adopted and the nation became a sovereign, democratic republic.

INTRODUCTION TO THE COURT:

  • The Supreme Court of India came into existence on 26th January 1950. SC is the highest judicial forum and final court of appeal under the Indian Constitution, the highest constitutional court, with the power of constitutional review.
  • The court comprises the Chief Justice and 30 other Judges appointed by the President of India. Supreme Court Judges retire upon attaining the age of 65 years.

Judges:

  • The Chief Justice of India (CJI) and the other judges of the highest judiciary are appointed by the President of India under Article 124 (2) of the Constitution.
  • In order to be appointed as a Judge of the SC, a person must be:
    • Must be a citizen of India
    • In terms of age, a person should not exceed 65 years of age.
    • a person should serve as a judge of one high court or more (continuously), for at least five years or the person should be an advocate in the High court or the Supreme court for at least 10 years or a distinguished jurist.
    • he must be, in the opinion of the President, a distinguished jurist.
  • The senior-most judge of the Supreme court is generally considered for holding the office of the Chief Justice of India. The CJI is the head of Indian judiciary and the Supreme Court.

Independence of the court:

  • The Constitution seeks to ensure the independence of Supreme Court Judges in various ways.
  • A Judge of the Supreme Court cannot be removed from office except by an order of the President passed after an address in each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of members present and voting, and presented to the President in the same Session for such removal on the ground of proved misbehaviour or incapacity.
  • A person who has been a Judge of the Supreme Court is debarred from practicing in any court of law or before any other authority in India.

Rules:

  • The proceedings of the Supreme Court are conducted in English only.
  • Supreme Court Rules, 1966 are framed under Article 145 of the Constitution to regulate the practice and procedure of the Supreme Court.

THE WORRISOME SITUATION IN THE COURT:

India’s Supreme Court has won accolades for its progressive judgments, for striking down a colonial-era law that criminalized homosexuality, declaring privacy a fundamental right. Yet, there are worries that the court is verging on the point of no return.

Delay:

  • Due to the shortage of judges, there is a delay in decision making and a huge backlog gets created.
  • It takes on average about four years for the court to reach a final verdict on a case—and sometimes much longer.

Uncertainty:

  • Delay in cases causes uncertainty and it puts a question ma over the issues being litigated in court.
  • A delayed resolution may not be a resolution, after all.

Divided court

  • Supreme Court’s judgments have been a mix of the liberal and the conservative.
  • It controversially outlawed gay sex, but it also recognized transgender people as a third gender.
  • It whimsically ruled that national anthem should be played in cinema theatres, but, in a landmark judgment, also ruled that citizens have a fundamental right to privacy.

These differences point to a divided court and tension about the judiciary’s role in a democracy where other institutions have become corroded.

Now, let’s analyze what types of cases are heard by SC?

While examining the type of cases the court hears, it is found that those with more resources unequally capture the institution’s attention.

Focusing on the wealthier case:

  • Tax, company law, land acquisition and service matters all have considerably higher acceptance rates for regular hearing than criminal, ordinary citizens, or personal law matters.
  • Meanwhile, important Constitution Bench cases are simply not being heard.
  • On a typical day, the court is far more likely to be found spending its time discussing the intricacies of tax law than intervening on behalf of the poor or the marginalized.

Admitting a large number of appeals:

  • Supreme Court judges frequently justify hearing so many appeals by arguing that they should correct injustices being done by the lower courts.
  • By taking on so many cases, the Supreme Court instead of clarifying precedent has confused it.

Avoiding writs:

  • An increase in the number of appeals has distracted the court not only from deciding Constitution Benches but also from hearing writ petitions.
  • The Constitution allows any Indian who believes their fundamental rights have been violated to approach the Supreme Court directly for a remedy through a writ petition, entirely bypassing the lower courts.

LENS ON COLLEGIUM:

  • The pendency of cases and lack of judges is also a big challenge to the Indian judicial system.
  • Currently, the Supreme Court has 31 judges in total, including the CJI. But the President’s assent to the Supreme Court (Number of Judges) Amendment Bill, 2019 has now taken the number of posts at the Apex Court to 34.
  • Since the appointments of three Justices (BR Gavai, Surya Kant, Aniruddha Bose and AS Bopanna) in May this year, the apex Court has been functioning at full capacity.
  • The Supreme Court was expected to continue sitting at its full strength until the retirement of Justice AM Sapreon August 27. Chief Justice of India Ranjan Gogoi is due to retire on November 17 this year.
The Supreme Court (Number of Judges Amendment Bill, 2019)

·         Recently, the President of India has signed off on ‘the Supreme Court (Number of Judges) Amendment Bill, 2019’ to increase the strength of the Supreme Court to thirty-three (33), excluding the Chief Justice of India.

·         The Bill had also informed that the creation of three additional posts of judges in the Supreme Court would result in the total expenditure of Rs 6,81,54,528 drawn from the Consolidated Fund of India.

·         The Union Cabinet had decided to introduce a Bill to increase the strength of the Supreme Court by 10% on July 31.

THE NUMBER GAME:

  • There are nearly 60,000 cases pending in the Supreme Court (As on the 1st day of June 2019, there were 58669 cases pending in the Supreme Court) and nearly 44 lakh cases in the High Court.
  • The United States Supreme Court hears only about 80 cases in a year while the 25 judges of India’s top court hear around 9,000 cases and deliver 1,000 verdicts a year.
  • The average pendency of any case in the 21 high courts for which we have data is about three years and one month (1,128 days).

WHY NOT HAVE REGIONAL BENCHES?

Responding to the above concerns, several proposals have been put forward to reform the court in recent years. To tackle geographic inequity in those who approach the apex court, in 2009 the India Law Commission recommended creating regional Benches of the Supreme Court in

  • Mumbai
  • Chennai
  • Kolkata
  • New Delhi

In favor:

  • Clearing judicial backlog: It will reduce the number of pending cases with the apex court, which is 57,987 as of June 2018.
  • Easy access: Regional benches will also provide litigants from the southern, eastern and western parts of the country easy access to the highest court.
  • De-congestion: Moreover, it will help in decongesting the national capital of India by distributing some of the finest minds into four different metros.

Many law commission reports have suggested opening SC branches in metro cities to facilitate people from the far-flung areas. The commission’s 229th report states:

“We are today in dire search for a solution for the unbearable load of arrears under which our Supreme Court is functioning as well as the unbearable cost of litigation for those living in far-flung areas of the country. The agonies of a litigant coming to New Delhi from distant places like Chennai, Thiruvananthapuram, Puducherry in the South, Gujarat, Maharashtra, Goa in the West, Assam or other States in the East to attend a case in the Supreme Court can be imagined; huge amount is spent on travel; bringing one’s own lawyer who has handled the matter in the High Court adds to the cost; adjournment becomes prohibitive; costs get multiplied.”

Against:

  • The SC judges feel that the apex court cannot be set up in any other part of the country. It is the highest court of the land, thus, it is in the capital city of the land.
  • The apex court claims that such a reform would only exacerbate coordination challenges amongst the court’s different Benches as it is difficult enough creating a cohesive jurisprudence amongst Benches in Delhi.

QUESTIONING THE COURT:

  • In India, Judiciary can be said to be the backbone of the right to information (RTI). Time and again it has vehemently supported the principles of transparency and irritability in all spheres of governance.
  • However, in recent times even the judiciary has been embroiled in a controversy pertaining to the issues of disclosure.
  • The Indian judicial system has attained maturity over a period of more than one and a half-century and has now earned an international reputation as one of the most efficient adjudicatory systems of the world.

WHY JUDGES ARE SO PRIVATE?

  • A risk to credibility & reputation: Credibility and reputation are hugely important for Judges, and it is felt that the slightest potential slight on their life could be debilitating and prevent judges from performing fairly.
  • Opening a Pandora ’s Box: The discussions in the top court can be sometimes freewheeling and can also include the discussion of judges’ private lives, the examination of government intelligence reports and the expression of judges’ personal opinions.
  • On Target: Judges can become an easy target for all, especially those who may have been rejected by the collegium, but continue to sit in high courts. Sometimes, it can lead to advocates get their hands on dirt against judges that they can take it out of context and use it for leverage in the court, by asking for their recusal or otherwise, questioning their independence in hearing the specific case.

THE OTHER SIDE OF THE COIN:

  • The judiciary is not solely responsible for the entire justice system.
  • State and central governments can also be held responsible for insufficient budgetary provisioning for the same.
  • The Government is also to be blamed for judicial mal-administration, including the pendency pile-up.

SUGGESTIVE MEASURES:

  • Deciding cases in lower courts: For the judicial system to work most effectively and fairly, the vast majority of cases should be decided in the lower courts without the prospect of endless appeal hanging over the heads of litigants.
  • Handling a few cases: To really tackle the challenges created by the current system, the apex court simply needs to hear fewer cases.
  • Fair resolving: Dealing with cases quickly is, of course, not the only measure of a good legal system. Cases have to be dealt with fairly and judiciously.
  • Regular reporting: The court needs to produce an annual report and regularly releases data about its inner working beyond basic structure concerning its backlog or the number of instituted or disposed of matters.
  • Creating Regional Benches: To tackle geographic inequity, regional Benches of the Supreme Court should be created.

Moreover, there is a need to reduce government litigation, compulsory use of mediation and another alternative dispute resolution mechanisms. Simplifying procedures, recommending precise capacity reinforcements and use of technology can also clear all backlogs in the courts.

THE ROAD AHEAD:

Whatever the final remedy, it should come through a process involving active debate over the court’s activities by all stakeholders, including judges, the government, the Bar, academics, and the Indian public. How accessible should the court be (and to what kind of litigant)? How cohesive should its jurisprudence be? How involved should it be in public interest litigation? How closely should it follow the founders’ vision of the Supreme Court, or should it refashion a new one? There are very real trade-offs involved in answering these questions.

Now, the real challenge is to ensure that India’s judiciary remains accountable to the principles of democracy. Judiciary cannot be above democracy.

Also read: Supreme Court Stays Maharashtra’s EWS Quota

moderator
By moderator August 14, 2019 11:09