Due to growing tendency among our judges to remain in limelight, the SC has started functioning more as a court of original jurisdiction rather than the court of last appeal.
On 20 May, the Supreme Court of India began its almost 45-day-long summer vacations. The Chief Justice of India constituted vacation benches of two judges – one bench for each of the six weeks – to hear matters of urgent nature, involving life and liberty. Just because the country’s top constitution court is on vacation, the rights granted to a citizen must not be left hanging.
But a cursory look at the cause-lists and the cases that have actually been heard by the vacation benches makes for interesting reading.
One urgent matter that was heard was whether former Janata Dal (United) president Sharad Yadav could retain his official bungalow and get other perks of office even after losing his Rajya Sabha membership. He had willingly parted ways with Nitish Kumar-led JD (U). But the matter was pending because the courts had to first decide on the legality of the Rajya Sabha chairman’s orders.
The matter was heard even though the lawyers for the respondent kept seeking adjournment on the plea that the arguing senior counsel was away on vacation.
Another case dealt with the contentious issue of reservation in promotions. The vacation bench granted the Centre the concession that it could continue with granting promotions in government offices, in “accordance with law.”
In both these cases as with several others, the important question that begs an answer is: what was the tearing urgency?
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Like in the case of promotions, how many promotions have now been effected since the passage of the order? My guess is: Zero!
The Centre, anyway, told the court that the entire process of promotions is in a limbo due to the continuing legal imbroglio.
Several chief justices in the past – current CJI Dipak Misra is yet to reveal his mind on this issue – have harped on the need to cut down on court vacations to deal with the mounting case-load.
Late Justices S.H. Kapadia and Altamas Kabir (when they were CJIs) had talked about the need to use summer vacations for dealing with pending cases. CJI R.M. Lodha had even issued new rules to bring down the period of summer vacations from 10 weeks to seven weeks. He had also sought the views of the chief justices of the high courts on working for more days. His letter said that the Supreme Court was then functioning for 193 days, high courts for 210 days, and the subordinate judiciary for 245 days a year.
But was that enough?
No. Rather than cutting down on holidays, the Supreme Court needs to reassess its own and the high courts’ role as higher judiciary. Both have original as well as appellate jurisdiction. But the Supreme Court, more than the high courts, needs to take a call on how much original jurisdiction it wants to exercise.
Should the top court, for example, be losing sleep over banning jokes against a community or banning sale and purchase of crackers in NCR-Delhi during Diwali? After all, it isn’t as if the rest of the country is pollution-free.
Due to the growing tendency among our Hon’ble judges to remain in the limelight, the Supreme Court has started functioning more as a court of original jurisdiction rather than the court of last appeal.
This explains, partly, why every lawyer – except some seniors who make it a point to take some time off with their families during the vacations – tries to seek the indulgence of the vacation benches by way of mentionings.
There may even be instances of lawyers, having been rebuffed by one bench during the vacations, trying their luck again before the fresh bench in the subsequent week.
It is time the court decided to put an end to this practice. Only habeas corpus and matters where an issue of grave constitutional crisis is involved must be heard by vacation benches. The rest can wait for the courts to re-open.
SC as Constitution Court
While the number remains hazy, it may be a safe assumption that there must be several dozen constitution bench matters pending in the Supreme Court. It was envisioned as a constitution court, and it needs to take that role more seriously.
CJI J.S. Khehar had tried to reinforce that, deciding that three constitutional benches would sit during summer vacations along with two regular vacation benches to decide cases. He persuaded almost all his brother-judges to forgo part of their vacations to hear and decide matters pending before constitution benches. In fact, the push back came from the lawyers. Many of them refused to play ball, saying they were averse to cutting down on their vacation plans.
But Khehar’s idea had merit, and should have been institutionalised. Unfortunately, this year, we are back to square one.
Do judges need holidays?
Absolutely. For those who understand the functioning of the judiciary would know that most of these holidays are utilised in writing reserved judgments. Judges also need time with their families, one reason why renowned lawyers are averse to the idea of accepting judgeship. But the problem starts when judges start taking on too much of needless case-load by agreeing to hear frivolous cases or cases that are best left for the high courts to hear first.
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