Tuesday, November 11, 2008

Supreme Court's arrears: A new perspective

GUEST BLOGGER: GOPAL SANKARANARAYANAN

[I am pleased to introduce Gopal Sankaranarayanan who is an advocate of the Supreme Court. His particular areas of interest are Constitutional law and Criminology. He is a firm believer in the power of the judiciary and in PIL, currently involved inter alia in challenges to the implementation of the reservation policy, the insertion of 'Socialist' in the Preamble and the abolition of the Right to Property - VV]


THE concern about arrears in Courts has been a longstanding one, and to which many books, several Reports of the Law Commission and a dozen annual symposia are devoted. However, there is a recent phenomenon, at least as far as the Supreme Court is concerned, which seems to be doing its bit to choke the windpipe even more – the listing of Special Leave Petitions on Non-Miscellaneous Days (NMDs).

The Supreme Court’s practise (for those out of the loop) is to have Miscellaneous Matters (SLP admissions, Interlocutory Applications and virtually every other Petition being heard for the first time) listed on the first and last day of a work week, which are usually Mondays and Fridays. On the 3 days in between (the NMDs), it undertakes Final Hearings, where all matters that have been admitted on a Monday or Friday are taken up for hearing. So far, so good. With at least 3 full days devoted to finally disposing of matters which had been admitted previously, many of them involving important questions of law or being part of an extended batch, there was some hope of the backlog being controlled.

However, over the course of the last few years, there has been a disconcerting tendency at the stage of admission for seasoned lawyers to press the Court to take up their matters on an NMD because they claim the case involves some element of urgency, the resolution of a brief but crucial point of law or that it is of grave public importance. One would imagine that such arguments would hold true for nearly half of all the matters that are brought before the Court, but in any case, the last several months have borne witness to the NMD lists being clogged by recent petitions which have wrested their way onto the board. While this may not seem to mean much at first blush, the consequences are grave.

Consider the fact that for over a year and a half, the Chief Justice’s Bench has not managed to make its way through its NMD list to get to the Items on his Final Hearing List, which include such notables:

103: S.V.Joshi v. State of Karnataka
Voice Consumer Care Council v. State of Tamil Nadu
[both OBC reservation matters from 1994 concerning the 9th Schedule]

104: I.R.Coelho v. State of Tamil Nadu
[concerning the Gudalur Janmam Estates, this was the lead matter in the 9th Schedule batch by virtue of the year of its filing – 1976!]

116: M.Nagaraj v. Union of India
[concerning reservations in services, this is a batch of nearly a 100 petitions!]

There are several other petitions on this list, involving far-reaching questions of Land Revenue, the interpretation of Article 31-C and the Implementation of the Justice Srikrishna Commission Report. But they are all hanging air, as the invading Miscellaneous matters are cleared.

Unfortunately, this is a malady blighting virtually every courtroom, as a result of which barely a handful of the really far-reaching matters are being heard. There are only one of two possible solutions in my view: The Court should either adopt a collectively obdurate attitude towards listing any admission matters on a NMD, or designate one or two specific courtrooms to handle all the matters that are directed to be so heard. Many judges have bemoaned this growing trend born of the judiciary’s own unnecessary munificence, and it is high time that it were nipped in the bud by its very creators.
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