21 Feb 2008

Supreme Court strength to be increased: Mixed reactions

While the United States Supreme Court works with a strength of nine judges (including the Chief Justice), the Indian Supreme Court is finding a strength of 25 + 1 (Chief Justice) as insufficient to deal with the increasing appetite for judicial intervention by the Indians. The piling list of pending cases just reaffirms the need to set priorities right in justice delivery system. [click here for the figures of pending cases in Supreme Court] While it is a good point to have a higher number of cases being registered in the Court, for it highlights the growing confidence in the judicial system on the part of the citizens (unlike other countries where heightened corruption woes deter approaching the courts), on the other hand management (or as some would put it 'logistics') of such heightened curiosity of the citizens to seek judicial intervention in almost all legal and extra-legal issues hits the system hard in the back-log it creates.

The demand for increasing the number of judges has been in vogue for long. However it has never been as regards the judges at the apex court and instead reforms have been called for to increase the number of judges at the District courts level and the High Courts, where the pendency is the most. And what we haven't witnessed is the hike in the judges level at the lower rungs of the judicial system, which is the more important priority if the system has to cope up with the increasing number of law suits, which are rising in tandem with the rise in the population status of the country. Instead what we witness is a proposal to increase the number of judges in the Supreme Court evokes mixed reactions from my side for I seek to look beyond just the problem of pendency of cases, as the Cabinet suggests the reason for the recent move.


In my opinion, the proposal to increase the number of judges at the Supreme Court is to add another dimension to the ever-green (I call this ever green as this issue props up every now and then) debate on having a bench of the Supreme Court for south India. Under the Constitution, the Supreme Court shall have a seat at Delhi. But also the Constitution recognizes that the Supreme Court may have its seat where-ever it wants in India. But unfortunately (unfortunately for the government), this decision to have a seat elsewhere is one purely the discretion of the Supreme Court and repeated number of petitions have been brought before the Court for it to consider having a bench in the South such that the litigations on the other corner of India do not have to spend so much resources in traveling and otherwise in their quest for justice. However, on all occasions a unanimous Supreme Court has always come up against any such fissiparous tendencies.

This recent move to increase the number of judges at the Supreme Court, in my view, is done with the motive to provide an additional dimension to reconsider this debate of having a southern bench for the Court. With the number of judges raised to 30, there is now a more scope to argue for a two-bench court for cases could be dealt with more efficiently and litigation costs reduced considerably with a southern bench disposing off the cases of the southern part of the county. However, I must be quick to add here, that I am totally against a case for a two-bench court for I completely agree with the reasoning given by the Court of 'preserving the integrity of a united court'.

With 26 judges and 13 court rooms (not to speak of individual chambers of the judges as well), it is already hard for the judges to keep track of what their brother judges rule in cases before them. Unlike the system in the United States Supreme Court, where all judges sit on all cases, the division of work of the Supreme Court in India is determined by the Chief Justice who issues standing instructions (called the roaster) to the Registry which puts up the cases before identified judges and thus other judges are not aware (unless there is some really important case and sitting judges do care to take the opinion of other judges) of the matters posted before them, till the time they are published and reported in the official reporter of the court and circulated before them. In such a scenario, atleast a common meeting point in the form of regular meetings in the Chief's chamber and for other administrative purposes keeps them united. Sending half the judges to other corner of the country would definitely give a blow to this system.

Further, one must also remember that the Supreme Court is not just the highest court of appeal. It is also a constitutional court, vested with the duty of interpreting the constitution and also ensuing that the government policies operate within the stipulated framework. But even more than this, intendedly or unintended, the Court also pursues a political agenda of its own. As brought out from the decision of Keshvananda Bharati case, 1973 (where the 'basic structure doctrine' was laid down), S.P. Gupta case, 1981 (whereby the court opened a gate for public opinion to participate in the law-making process, through the Public Interest Litigation route), Supreme Court Bar Association case, 1990s (wherein the Court reserved it itself the power to nominated judges in the Supreme Court and the High Court, as opposed to the government nominating the judges), Rameshwar Prasad case, 2005 (wherein the Court declared that it could look into the illegalities committed within the legislative process), the recent case (cannot recall the name of this one) wherein the Court held that Schedule IX of the Constitution was not beyond judicial review (and thus ending a run for governments to make arbitrary laws and beyond judicial challenge) or even the pending case of reservation in educational institutions; the history of the court is flooded with such decisions in which the political agenda of the court is clearly brought out. This could not have been possible in a divided court and required a integrated for making such bold and unprecedented initiatives.

Given the ongoing tussle between establishing the might for power between the legislature and the judiciary (the Delhi-land sealing case is the most potent but not the only example to this end, along with the reservation case as well), and the fact that in this first decade of the twenty-first century the court had indeed come out with certain remarkably bold decisions asserting its independence and role in shaping the legal paradigm, I am sure the legislature and most importantly the executive would no doubt be looking for ways and means to dilute this growing omnipotent positioning of the court. And it would not be a big surprise for me if this turns out to be the hidden agenda behind the move to increase the number of judges in the Supreme Court, for if the Cabinet for really concerned with the backlogs in the cases, they should have started working from the ground realities, namely the district courts.

Further coverage of the news-item;

  1. NDTV
  2. Sify
  3. Rediff

1 comment:

raghav said...

The demand for a bench of SC in South is because of distance factor and convenience; the presence of SC solely in Delhi restricts access for people down far south who cannot anyway afford Senior Advocates charging lakhs of rupees per appearance.....However increase in number of judges is unrelated to the crux of this demand and creation of a two bench court will not make a difference...the SC will still be in North.....lastly, the increase is paltry...i mean how good is an increase by four judges.