Justice delayed is justice denied: All is not well in the Supreme Court

At the function organised 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 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.

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.

The SCBA during my Presidency in 2020-2021 constituted a group of lawyers who were familiar with technology to undertake the task of finding out the best software/platform to be used in the Supreme Court. The idea behind this as envisaged by the Executive Committee of the SCBA was to help litigants and lawyers who were clamouring for speedy justice and hearings. The group had extensively discussed with some of the world’s best players in the field of software and an appropriate presentation was made to the judges. Sadly, no communication was received in respect thereof, much less, any action taken whatsoever. The matter was simply sidelined by informing the Bar that a tender process was being undertaken by the Registry of the Court. I truly wish the Bench had been more kind to the Bar and discussed the issues threadbare to find the best possible solution. I felt extremely sorry for the software companies who devoted much time and cost in preparing the same, and I was left with no alternative except to apologize to them for my failure to persuade the judges to hold a joint meeting. It’s extremely gratifying that these companies did not charge even a penny from the SCBA.

The problem is severe and litigants are the sufferers. Justice is the victim. It is, therefore, absolutely necessary that the Bench and the Bar should sit together to resolve these technical and non-technical issues, including reforming the Registry. The Registry cannot be left with untrammelled discretion to list or not list matters, many a time even after specific directions from the benches. The Bar cannot be left at the mercy of mentioning the matters before the Chief Justice of India, as mentioning slips may or may not even be allowed by the Registry for being placed for orders.

Even otherwise, it is not a healthy practice to have mentioning before the Chief Justice alone for getting urgent matters listed. As the Master of the Roster, the Chief Justice of India has divided matters under various subject matters and constituted appropriate benches. It would therefore be appropriate and just to allow mentioning before these appropriate benches depending on the subject matter. True, the same subject matter is divided amongst several benches, but then it would be easy to distribute fresh mentioning matters based on the number of matters and the date of filing. Mentioning does take place before respective benches to get after notice matters listed, which are not being listed despite judicial orders. I have personally seen that benches are extremely kind in allowing such listings upon being informed of the urgency of the matters. But it is sad to see lawyers time and again standing up and requesting the benches for an unusual prayer,

“My matter which is coming up on so and so date as per advanced list be not deleted there from.”

This clearly reflects poorly on the institution and shows a deep sense of frustration amongst lawyers. To my mind, mentioning can be easily avoided and abolished if automatic computer listing is streamlined, with a clear provision to list complete admission matters within three days and to ensure that after notice matters are duly listed by the computer automatically on the dates ordered. To my mind, judicial time ought not to be wasted in mentioning before either the Chief Justice of India or other benches.

The Supreme Court of India is a great institution created by the Constitution framers to play a crucial role in our democracy. It is expected to uphold the Fundamental Rights of the citizens as also to keep the legislature and the executive under check. Any violations of Fundamental Rights or any transgression of Constitutional and legal limits by the legislature and the executive must meet with quick response from the Court. If this does not take place (and it has not been taking place), the very purpose of creating this great institution stands defeated. As a result, with violations of Fundamental Rights galore across the country, Parliament and state legislatures continue to pass laws which may prima facie be unconstitutional. Most of all, the executive actions and inactions in direct violation of Constitutional safeguards and contrary to Constitutional Morality go unchecked for long periods. This emboldens the executive particularly to pay scant respect to the Fundamental Rights of the citizens and particularly vulnerable sections of the society, and to negate the Rule of Law. This is not a very happy or healthy situation for a young democracy.

Chief Justice of India NV Ramana has repeatedly stressed on justice and its delivery, stating,

“People who are suffering do not look for well-dressed, erudite lawyers or colossal court buildings. All they want is to be relieved of their pain quickly , without exhausting all their resources. We all have to work together to promote a sense of belonging with the justice delivery system, among the public.”

“The understanding of judicial infrastructure has to transcend beyond the issues of pendency, vacancy or the number of courtrooms. It should involve modernisation, upgradation and creating a “barrier free-citizen friendly environment”. We can assert true accessibility when the person with the maximum disadvantage can still knock on the doors of the court of justice.”

The pandemic has created an extraordinarily novel challenge to the judiciary, but it is not insurmountable. Better technology with close supervision of the Registry can go a long way in making the administration of justice more efficient, acceptable and loved. The Bar and its members must co-operate actively and constructively to ensure quick, short and to-the-point arguments without seeking avoidable adjournments. All stakeholders must put their heads together to produce a more efficient system in the administration of justice.

There is no denying the fact that there is lot of injustice in the society and in the nation. Judges have not only a Constitutional duty, but also a pious duty to redress this. It is very difficult to get statistics of the functioning of the High Courts and subordinate courts across the country during the pandemic, but general conversations across the board with stakeholders give an impression to me that all is not well. The time has come for the Chief Justice of India to constitute a High-Powered Committee comprising all stakeholders and aided by the best management and technological experts to address this perennial problem of delays plaguing the judicial system.

I do believe that judicial reform should come more from within than from outside. True, the executive will always dither in providing the best infrastructure to the judiciary. But nothing can be done about that, because the judiciary is unwilling to confront them with harsh orders. Be that as it may, introspection by the judiciary will go a long way in ameliorating the situation and wipe the tears of millions of litigants.

Dushyant Dave is a Senior Advocate at Supreme Court of India and former President of the Supreme Court Bar Association.

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect those of Bar & Bench.