This has now become a weekend ritual for our honourable judges. Any Sunday or Monday, if you take the trouble to open a newspaper—or check the newsfeed on your cellphone—you will find that a judge of our Supreme Court or a high court was the keynote speaker at some function or felicitation or anniversary celebration, and has spoken some lofty words on some matter of grave national importance.
Our honourable judges are obviously using their spare time fruitfully to ponder on what ails the nation. And the nation gives them enough spare time. Currently, the Supreme Court has 193 working days in a year, high courts 210 days and trial courts 245 days. The Supreme Court has five vacations in its annual calendar—a summer break of 45 days, winter break of 15 days and Holi vacation of one week. It closes for five days each for Dussehra and Diwali. There are about 73,000 cases pending before the Supreme Court and about 44 million in all the courts of India, up 19% since last year.
According to a 2018 Niti Aayog strategy paper, at the then-prevailing rate of disposal of cases in our courts, it would take more than 324 years to clear the backlog. And the pendency at that time was 29 million cases. Cases that had been in the courts for more than 30 years numbered 65,695 in December 2018. By January this year, it had risen more than 60% to 1,05,560.
Our judicial system also remains the least digitized area of governance. According to a 2019 investigation by thequint.com, the Supreme Court, whose judges appear deeply concerned about pollution and deforestation, uses at least 48 million sheets of A4-sized paper every year—and the text has to be typed in 13-14 font size, double-spaced and with a 3 cm margin on either side.
Our judges select themselves and their choice is binding—neither the legislature nor the executive can do anything about it. To quote from a 2014 Hindustan Times report: “At least 16 (34%) of the 47 judges in the Punjab and Haryana high courts have kith and kin practising law at the same place. Either these relatives have private practice or the Punjab and Haryana governments have accommodated them in respective advocate general offices.”
In May 2019, the Supreme Court upheld the validity of a Karnataka law that grants reservation in promotions to Scheduled Caste and Scheduled Tribe (SC/ST) government employees. The judgment asserted that it was wrong to equate “merit” with “candidates who perform better than other candidates on seemingly ‘neutral’ criteria, e.g. standardised examinations…. This is a distorted understanding of the function ‘merit’ plays in society.” The honourable judges explained: “A ‘meritorious’ candidate is not merely one who is ‘talented’ or ‘successful’ but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs.”
But there are no reservation for SCs, STs or other backward classes (OBCs) for judges’ posts in the Supreme Court and high courts in India. Currently, among the 33 Supreme Court judges, there is only one SC and one OBC judge.
In November 1998, the then-President of India K.R. Narayanan noted on a file seeking his assent for the appointment of four Supreme Court judges: “It would be consonant with constitutional principles and the nation's social objectives if persons belonging to weaker sections of society like SCs and STs…are given due consideration. Eligible persons from these categories are available and their under-representation or non-representation would not be justifiable."
The then-Chief Justice A.S. Anand responded: “I would like to assert that merit alone has been the criterion for selection of Judges… All eligible candidates, including those belonging to the Scheduled Castes and Tribes, are considered while recommending names for appointment as Supreme Court Judges.” That meaning of that word “merit” seems very malleable.
So one could well ask: Of what value are these weekend pontifications that we are being subjected to currently? Last year, the honourable Justice D.Y. Chandrachud described dissent as democracy's “safety valve”, and said that branding those who dissent as anti-national or anti-democratic “strikes at the heart of our commitment to protect constitutional values”.
Fair enough. But a couple of weekends ago, N.V. Ramana, the Chief Justice of India, called for saving the judiciary from “motivated and targeted attacks on social media”. He said that the onus lies on the Central agencies to deal with the attacks against judges on social media.
So, dissent is the safety valve as long as it is not about the judges? And if someone criticises the judiciary, the CBI or NIA or whatever should be let loose on her?
On Constitution Day, November 26, the Chief Justice said: “Looking back, I can proudly claim that, as an institution, the judiciary has lived up to the faith reposed in it by the Constituent Assembly. The fact that the Indian judiciary continues to be the last hope for those in distress, suggests that it is on the right track.” I am sure that the people whose fates are held at ransom in the 44 million pending cases—and remember, more than one lakh of these cases have been pending for over 30 years—were happy to hear these words.
Our courts also seem to love headlines. They seem to prioritise cases that would get media attention, even if that means intruding into areas clearly reserved in the Constitution for the legislature and the executive. Consider the three farm laws which have now been repealed. Did the Supreme Court have any business getting into these? And then, after it did, why did it sit on the report submitted by the committee it set up to study the farm laws? Meanwhile the agitations escalated and lives were lost. The report was strongly positive about the farm laws.
To end with a personal anecdote: I have been doing the rounds of Delhi courts for 16 years now for what originally began as a libel suit about an article published in a magazine I once worked for. While I cannot go into the details of the case for obvious reasons, I can say that I heard of the article for the first time when a legal notice was served to me, and that too, a year after I had quit the magazine. I had a fancy designation in that magazine, so I was made one of the defendants. Full 16 years later, I am still unsure what the issue is. The litigant does not appear to be denying what the article said about him and seems to be only interested in who the reporter’s sources were. It is a mystery why the case has not been thrown out. Or decided in someone’s favour. Sixteen years.
This Friday (December 3, 2021), I arrived at the court on time, but the judge had taken the day off. So another date was given to us in the next calendar year. One of my co-defendants passed away six years ago and his death certificate was submitted to the judge soon after, but his name continues to appear in the court summons.
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