Report No. 125

Chapter II

Present Situation

2.1. Constitution-makers, while conferring very wide jurisdiction on the Supreme Court of India, possibly may not have envisaged the torrential inflow of work in the Supreme Court. Undoubtedly, while conferring jurisdiction of widest amplitude, they must have visualised that the Court would exercise jurisdiction with restraint and wisdom never forgetting the fact that it is neither a court of appeal nor a court for redressal of every legal wrong.

The Supreme Court of India was to be an apex court, especially dealing with important constitutional issues and acting as a sentinel on the qui vive. ConferMent of wide jurisdiction was referable to the keen desire of the Constitution-makers that in case of miscarriage of justice, the Court, without being handicapped by any procedural juggernaut would be able to reach the area of injustice and to redress the wrong. However, it was implicit in the conferment of jurisdiction that it would be exercised with restraint and wisdom, more or less influenced by the doctrine of candour.

These limitations on exercise of jurisdiction self-imposed out of,wisdom were treated as sufficient to so control and regulate the inflow of work that it was assumed with confidence that the Court will be able to keep under control the inflow of the work and manage the dockets and render justice by developing a system cheap, expeditious, informal and easily accessible. The mandate of Article 39A would be its load star.

2.2. Was the assumption justified? In the glow of first flush of freedom from colonial rule and repatriating home a distant court (Privy Council) available for final adjudication in the matters in the form of Supreme Court of India, coupled with growing awareness of fundamental rights with conscious commitment to power of judicial review and availability of relief against administrative/ executive injustice, opened the flood-gates of litigation. The Constitution-makers hopefully believed that the Supreme Court of India, manned by seven Judges excluding the Chief Justice of India, would be able to effectively handle the incoming litigation.

What was overlooked was factors such as colonial structure of legal profession, cumbersome and technical rules of court procedures, long unending oral arguments, inordinate delay in making judicial appointments and total non-avail ability of modern court-management techniques, all of which have combined to create a monstrous figure of arrears, simultaneously causing long delay in disposal of causes and controversies coming before the Supreme Court of India. The problem has assumed such serious dimensions that it poses a serious threat to the very existence and credibility of the system.

Even though the mounting arrears attracted the attention of the State and the Law Commission, the situation is deteriorating with the passage of time. This has led to the present situation being described as 'The Courts in Crisis'.1 In the year 1986, the then Chief Justice of India, with considerable pain and anguish, stated that the judicial system in the country was almost on the verge of collapse.2 And statistically speaking, situation since then has further deteriorated.

1. Dr. Upendra Baxi The Crisis of the Indian Legal System, p. 58.

2. Justice P.N. Bhagwati, former CJI, in his Law Day Speech on November 26, 1986.

2.3. Conceding that the problem of arrears and delay is not unique only in India but is also raising its ugly head in all countries where Anglo-Saxon jurisprudence is in vogue, a Study Group appointed by the Chief Justice of U.S. Supreme Court in 1972 to examine the problem of arrears observed that the work load was rising to a level far beyond the capacity of the Justices to satisfactory deal with the cases selected for hearing.

The 1973-74 term of Supreme Court saw a new high of 5,079 cases on its dockets with 3,876 disposed of and the balance of 1,203 were carried over to the next term and it may recalled that the U.S. Supreme Court may dispose of a case without assigning reasons in a written opinion. The 1983-84 term saw the institution of 5,155 cases out of which 4,162 were disposed of, with full written opinions handed down in 163 cases only, the remainder being disposed of either per curiam or by memorandum orders.1

The problem in the House of Lords is not that acute. Even then, it is not possible for it to dispose of all cases which come to it, its jurisdiction being largely appellate. Coming home, the situation is vastly different.

1. Henry J. Abraham The Judicial Process, pp. 187-190.

2.4. The workload has been increasing in the Supreme Court year after year and, barring very few exceptions, the pendency has hardly decreased. The statistical information from the Supreme Court is available under four distinct heads. Matters which are already admitted, i.e., where leave to appeal is granted or which have come by certificate from the High Court and are styled as final hearing matters provide one head of information. Petitions for special leave filed in the Supreme Court directly provide another head of information. Miscellaneous cases provide the third head of information. Petitions under Article 32 of the Constitution provide the fourth head.

2.5. The Supreme Court was set up on January 26, 1950, when the Constitution became operational. The situation at the close of the year 1950 was that 771 matters under the head Final Hearing were pending, which figure has risen to 80,837 by the close of the year 1986. The increase is roughly by 1000%.

2.6. In order to have a realistic picture of rising crescendo of work, it would be advantageous to examine the situation at the end of every decade since the setting up of the Suprethe Court.