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Report No. 125

Chapter III

Causes for Delay and Past Attempts at Remedial Measures

3.1. Diagnostic effort unquestionably reveals that the system is sick almost beyond repair. There is no one who cannot say that the disease in the form of backlog of cases and delay in disposal of them has eaten into the vitals of the system and each limb is sick, the sickness becoming visible in the form of huge backlog appearing like malignant glands. Numerous persons and bodies have offered their own analysis of the causes that induce sickness. A brief reference to the same would not be out of place.

3.2. Everyone directly or indirectly connected with the justice system has been depressed by the delay and the chocking congestion in the Supreme Court with pending cases crying aloud for disposal. This, by itself, is likely to lead to disarray in the functioning of the constitutional Government: to wit, numerous decisions of the Government are being questioned in the Court and during the pendency of the matter, interim relief is granted by the Court, bringing the governmental machinery to a standstill and throwing the whole constitutional mechanism out of gear.

The Courts have stayed, by their interim orders, collection of taxes to the tune of Rs. 4,000 crore. This aspect may be viewed in the background of deficient financing and leaving budgetary deficit unfilled. The functioning of the court has affected the quantity and quality of justice available to citizens. The court has become vulnerable and the credibility and reputation of judicial process is at stake. Delay in delivering justice invites in brief the wisecrack, Editorially expounded:

"Okay, blind, but why so slow?"1

1. Colliers Issue, dated June 14, 1952, p. 129.

3.3. Laws' proverbial delay in many lands and throughout history has furnished a theme for either a tragedy. or a comedy. 'Bleak House' by Charles Dickens is a parody on justice system and the satire on the laws' delay has been universally acknowledged. It was a comedy. Hamlet summaries the seven burdens of men and puts the laws' delay fifth in the list. It is part of a tragedy.

Similarly, Chekov, the Russian, and Moliers, the Frenchman, have composed tragedies on the theme of laws' delays. Gilbert and Sullivan have satirized it in a song. This may indicate that the problem is an age-old one and people live with it. The question is of the dimension now it has acquired. Regardless of the antiquity of the problem and the difficulty it presents, the interest groups have time and again suggested some remedial measures, if not to solve the problem, to make it manageable.

3.4. The Law Commission composed of eminent lawyers and outstanding Judges, while dealing with the arrears in the Supreme Court, felt that the unattractive conditions of service were largely responsible for not attracting the outstanding talent from the Bar and, therefore, 'an effort should be made to recruit distinguished members of the Bar directly to the Supreme Court Bench by inviting them to accept the appointment at a time when they can look forward to a fairly long tenure on the Bench'1.

While not recommending any increase in the emoluments of a Judge of the Supreme Court, the Commission recommended that the 'pensions payable to Judges of the Supreme Court should be increased. ' 2 It also incidentally observed that a continuous supervision should be maintained over piling up of the arrears so that, if necessary, 'a decision can be reached on the need for further increasing the strength of the Court'.3

It hopefully believed that these suggestions would in the long run bring down the arrears. The causes thus identified are a possible inadequacy in the Judge strength of the Court and presence of not requisite talent being appointed to Supreme Court because talented people find compensation for Judgeship unattractive and inadequate.

1. LCI, 14th Report.

2. Ibid.

3. Ibid.

3.5. As the time passed, another ugly feature came to surface which was one of the primary causes for mounting arrears. The one cause held largely responsible for the malaise is the inordinate delay in filling in the vacancies in time in the Supreme Court. To give a graphic picture, an attempt has been made to convincingly establish that there is inordinate delay in filling in vacancies. Information has been collected for years 1981-86 in this behalf which has been tabulated (See Table VIII in Appendix I).

An arithmetical approach would show that the delay in filling the vacancies caused a loss of 8,419 mandays during this period. If the vacancies had been filled in without unexplained delay and avoiding loss of mandays, the Court would have been able to dispose of 25,678 cases which would have lowered the mounting graph of arrears.

3.6. This aspect has been examined in depth and vividly described by the Law Commission.1 The picture becomes curiouser when it is recalled that since the advent of the Constitution, there has been an upward revision in the Judge strength of the Supreme Court commencing from 7+1 in 1956 to 25+1 in 1986, yet this has remained a paper exercise because while strength is augmented, the newly created posts are not filled in for years.

To illustrate that point, let it be made clear that the last upward revision in the Judge strength of the Supreme Court was effective from 9th May, 1986,2 yet for a period of nearly two years, not a single post from the additional strength has been filled. In fact, as of today, there is one vacancy in the earlier strength still remaining unfilled. Upward revision of Judge strength is founded on a certain assumption that the present Judge strength would not be able to cope with the inflow of work and to effectively deal with the arrears. Therefore, one way of solving the problem is to in crease the strength of Judges.

If the increase is worked out scientifically in the manner of disposal of cases by a Judge per year and thus a certain figure is arrived at, not filling in those vacancies would unquestionably mean that the inadequate strength continues to be inadequate notwithstanding the fact that there is an upward revision of strength. Merely passing legislation for upward revision of strength by itself is hardly of any consequence. The moment upward revision of strength is sanctioned, steps must be taken to fill in those newly created posts immediately so that the assumption behind upward revision of strength is scientifically worked out.

1. LCI, 121st Report on A New Forum for Judicial Appointments, 1987, Annexure IV.

2. The Supreme Court (Number of Judges) Amendment Act, 1986.

3.7. It must at once be conceded that Judges of the Supreme Court are over worked and not filling in the vacancies imposed an unbearable burden on those who are in position. Monday is reserved as admission day and, on an average, 50 special leave petitions/writ petitions are listed for admission before each Bench generally comprising of two Judges. This may entail reading of over a thousand pages.

For the next three days, on an average, 10 to 15 matters are listed for admission as also a continuous running Board is assigned to each Beach listing final hearing matters. When these matters are heard, the judgments have to be pronounced. And ordinarily, in the Supreme Court, the judgments are prepared at home. This method entails heavy workload on Saturday-Sunday.

Again on Friday, good number of matters are listed for admission and the Judges have to work hard on Saturday-Sunday for preparing their opinions plus approving the judgments of the colleagues circulated for opinion. There is little time left for the Judges to read and investigate on their own behalf. This intolerable burden of work provoked a former Chief Justice to say that failure on the part of Government to fill in the vacancies has operated as an act of cruelty to the existing Judges to carry on intolerable burden.1

1. P.N. Bhagwati, former Chief Justice of India, in his Law Day Speech, dated Nov. 26, 1986.

3.8. There is a divergence of opinion on the question of upward revision of Judge strength. There is a body of opinion that it the Judge strength is revised very high and the Judges in the Supreme Court sit in Benches of two, inevitably there will be conflict of opinion and the quality of justice would suffer. There is an element of truth in this approach. There are others who believe that the situation has become so disconcerting that even if there is a risk in increasing the Judge strength very high, the risk will have to be run. Undoubtedly, proponents of both the views emphatically assert that the vacancies should be filled in as early as possible.

3.9. It may be pointed out here that this failure on the front of making appointments to fill in vacancies has been the subject-matter of numerous discussions. On the earlier occasions, a pious hope was expressed that the vacancies should be filled in as early as possible.

That hope remained unfulfilled. Consequently, the Law Commission was obliged to look at the problem afresh and, avoiding platitudinous observations, an effective remedy was suggested to deal with the problem of expeditious filling in of vacancies1 It would be legitimate to hope that the concerned Government will take adequate effective and expeditious steps to fill in the vacancies.

1. LCI, 121st Report.

The Supreme Court - A Fresh Look Back

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