The Supreme Court ought to hear SLPs concerning the very lives, liberties and properties of the citizens of this country and adjudicate real lies, rather than spending all its time on matters falling in the exclusive province of the legislature and executive, such as demonetisation, NJAC, CEC, Article 370, etc. – A critical analysis of the functioning of the Supreme Court of India.
Mathews J. Nedumpara
1. In the Supreme Court of India, on an average 60,000 Special Leave Petitions (SLPs) are filed under Article 136 of the Constitution. Any person aggrieved by any judgment, decree, determination, sentence or order of any court or tribunal, can seek the leave to appeal. For instance, a person aggrieved by an order of a Magistrate seeking to dispossess him of his home, where he has not been heard, can straight away invoke Article 136.
2. Today, almost 90% of cases instituted in the Supreme Court are SLPs. Writ petitions under Article 32, Public Interest Litigation (PIL) etc. constitute the remaining. The strength of the Supreme Court as on 5th July, 2023, is 31 judges and the sanctioned strength is 34. The Supreme Court works almost 200 days a year for 5 hours a day. To hear SPLs and WPs, which is the core business of the Supreme Court, the judges sit in benches generally of two and sometimes three.
3. Article 136 does not confer an absolute right to appeal to the Supreme Court. It only says that the Supreme Court may, in its discretion, grant leave to appeal. If the litigant is able to convince the Court of the merit of his cause, then notice will be issued to the opposite parties. The Special Leave Petition will be re-numbered as a regular civil or criminal appeal, as the case may be, and the parties will be afforded a full-fledged detailed hearing. For a detailed hearing and determination on merits no litigant has an absolute right. That right will inure in him when leave is granted. The life and death issue for the litigant is the grant of leave to appeal. If leave is denied, his cause comes to an absolute end, without any detailed hearing or determination.
4. The judges sit in division benches of 2 & 3 judges to hear SLPs on Mondays and Fridays known as Miscellaneous Days. In the not so recent past, a new trend has been evolved i.e., to issue notice to the opposite parties at the pre-admission stage. Most of such cases are heard on non-miscellaneous days, eating into the time that is otherwise available for hearing of regular matters. These are mostly matters where the senior counsels are engaged, and these cases enjoy a priority over long pending cases. The ordinary public may not know much of the perils of these practices. The SLPs where the litigant is represented by non-celebrity lawyers are by and large dismissed in limine, at the threshold, in “93 second” hearings. The special category of SLPs where pre-admission notice is issued and both sides are represented by “celebrity” lawyers practically consume all the time of the Supreme Court, hardly leaving any time for old pending cases.
5. As aforesaid the Supreme Court roughly works on 200 days in a year, 5 hours a day. Taking the maximum capacity of 17 benches working on 200 days and on an average of 5 hours a day, the total judicial time available in a year is 17,000 hours. Assuming, that on an average for a detailed hearing on the merits of the case requires roughly 30 minutes, the court can maximum hear and decide 34,000 cases in a year. The simple arithmetic indicates that the Court has no time for a detailed hearing and writing reasoned judgments in every case. The Supreme Court in its initial days used to hear every case in fair detail and write detailed judgments, often sitting in larger strength benches. The cases then were very few in comparison. Today, the court faces the crisis of unlimited inflow and its primary concern is how to curtail the inflow. This has resulted in the Supreme Court dismissing 90% of all SLPs in just “93 seconds” or less.
6. In “93 seconds” and most often even less, it is difficult to convince a court even of the most meritorious case. To be fair to the judges, they read the brief burning the midnight oil. A judge has only 24 hours. Think of a Miscellaneous Friday, on an average 60 cases are listed before him. The papers are sent to him the previous day. Even if the judge does not close his eyelids all night and reads the brief, he would only have 10 minutes per brief. A super human judge alone can retain all the facts of the case and the questions of law involved and be ready for open court hearing of “93 seconds” and arrive at a just decision.
7. From what is stated above, it is crystal clear that a Supreme Court judge, today, is absolutely not in position to cope with the ever increasing workload. The Court has no time to hear the petitioners in SLPs, and they are dismissed in 93 seconds on an average. No judgment is written in these matters except the one-line order that the SLP is dismissed. Article 137 providing for a review of SLP is rendered redundant, for no lawyer worth his salt can draft a review petition seeking review of a one-line order. However, hundreds of review petitions are instituted against such one-line orders and they are dismissed in chambers without a hearing in the open court. Unlike other chamber hearings, chamber hearings in review petitions under Art. 137, even the Petitioner is not heard.
8. The Supreme Court, in Hurra vs. Hurra, assuming the role of the legislature, created yet another forum called ‘curative jurisprudence’. The statistics indicate that 99% of all such curative petitions are dismissed in chambers, without even hearing the Petitioner. The curative petition, too, is against a non-speaking order passed in review. The scenario today, to those not familiar with the court, is that there is a people’s court which an ordinary citizen can approach under Article 32, 136 and 137. But the reality is that it has been reduced to a infructuous formality. Only petitions where “senior” advocates appear, which are fast tracked, alone are really heard, the other being the so-called PILs of which I make a reference infra.
9. When 90% of SLPs are dismissed with a hearing that lasts for 93 seconds or less, and when all review and curative petitions are dismissed without even a hearing, the litigants who have knocked at the doors of the Supreme court lose all faith. This will lead to growing distrust and dissatisfaction towards the highest Court of the land, which I shudder to even think of.
10. The common man who is not very familiar with the Supreme Court would put all blame on the judges and that is quite unfortunate, because in my opinion, it is the elite class of lawyers who have hijacked the institution for their narrow ends, that are primarily responsible, though the responsibility of the judges cannot be totally denied.
11. Our founding fathers were great visionaries. However, it is impossible for them to have foreseen the scenario that would emerge 50 years later. They incorporated Article 32, whereunder citizens could approach the Supreme Court directly for the enforcement of their fundamental right without recourse to any other court. The fact that if Supreme Court were to be the first court of original jurisdiction, and if access to it under Article 32 itself is a fundamental right, then we would need a Supreme Court with hundreds of judges, was not foreseen. However, that does not create much of a difficulty today, with the Supreme Court relegating matters to the High Court, and rightly so.
12. Today, Article 32 petitions constitute only 4 percent or so of the total cases instituted in the Supreme Court. Then who is to be blamed for the current sorry state of affairs of the Supreme Court where the Court dismisses writ petitions and SLPs on an average of 93 seconds. The super elite class of lawyers alone are responsible for the sad state of affairs today, where the common man is denied a fair hearing, while causes of the rich whom they represent and the so-called PILs consume all the time of the Court.
13. All the time of the court is usurped by the super elite class of lawyers bringing to the court matters which are in the exclusive domain of the legislature and executive, which are not justiciable at all, in the name of judicial review. Take for example, the ongoing hearing of the abolition of Article 370 of the Constitution, a subject where the public opinion is sharply divided. Those who support the government would stand by the decision and those who oppose the government would certainly disapprove it. Article 370 is not about the infringement of the fundamental right of a particular individual.
14. The concept of judicial review is all about enforcement of justiciable right. I am an ardent supporter of the supremacy of the fundamental rights. For me, it is so primordial, which no legislature can take away and where it is infringed, judicial review will lie. However, if the decision which takes away and abridges the fundamental right is in the province of the executive and legislative policy, and is done in furtherance of the same, the fundamental principle is that rights of the individual will have to yield to that of State, namely, “salus rei publicae suprema lex”. An example would be the Covid pandemic restrictions. It certainly infringes fundamental rights, but it does not vest a justiciable right in the citizens because it was done in the larger public interest. The executive decisions may be right or wrong, but it is not justiciable. The so-called PILs such as NJAC, Puttuswamy, Sabrimala, Chief Election Commissioner’s appointment, and now Article 370, have eaten up substantial precious judicial time of Supreme Court, at the cost of a fair hearing to thousands of ordinary citizens who had knocked at the doors of the Supreme Court seeking justice for the protection of their rights, properties and liberties. It is in this sense that the Supreme Court has failed as a supreme judicature.
15. I am, probably, the only person who has come in the open and questioned the practice of the Supreme Court entertaining matters of larger public interest, falling the exclusive province of legislature and executive, and adjudicating the same behind the back of the people of this country.
16. The Court entertaining PILs on public issues literally began with S.P. Gupta’s case. PIL came to be a useful tool for the Supreme Court to re-write the Constitution and usurp the power of appointment of judges in the Judges-II case. The Attorney Generals, who should have asserted that he is the custodian of public interest and that nobody has the right to step into the shoes, throughout the last few decades has not opposed the usurpation of his domain. On the contrary, AGs have acquiesced, nay, facilitated it.
17. The PIL industry which has received great legitimacy is the greatest threat to the very existence of the Supreme Court. The concept of Judicial Review and PIL as it stands today, are poles apart. Judicial Review is for enforcement of a right by a person aggrieved by the infringement of his right. On the contrary, PIL is nothing but calling upon the Court to be an appellate authority on the legislative and administrative decisions such as in the matters of NJAC, Article 370, demonitization, etc. The PIL business gave the super elite class of lawyers enormous political power and clout because of the publicity and name such litigations offered to them on a platter.
18. The super elite class of celebrity” of lawyers, being fallible humans, pose only one question to themselves, what is in my best interest?’ The Supreme Court, in the name of judicial review, takes up matters falling in the legislative and executive domain, in the name of PIL and constitutes benches of larger strength to adjudicate make-believe constitutional issues. Some of them have even openly demanded the abolition of two judge benches. They are not concerned about the fate of the common man who, having been denied justice, knocks at the doors of the Supreme Court under Article 136.
19. There is a misconception that our legal system has too many tiers of appeal. It is true in some subjects, while in others there is none. For instance, in the Bombay High Court, there is no provision for appeal at all, in respect of orders in petitions under Article 226 and even Section 482 of the CrPC which are heard by division benches. The only remedy is a leave to appeal under Article 136. The people of this country still invoke Article 136, even knowing that it is an exercise in futility, only because they have no other option. This scenario has to change.
Non listing of WP nos.1005 of 2022 and 320 of 2023 which my humble self and others have filed seeking the abolition of the collegium and the senior designation system, two systems which we consider most pernicious and which stand as a bottleneck in the reformation of our justice delivery systemSeptember 29, 2023
- September 29, 2023