Supreme Court must be less ambitious in the issues it chooses to take up, says M J Antony…

supreme-court-must-beWay back in the 1940s, work in the Federal Court — the predecessor to the Supreme Court of India — was so spare that the judges did not come to the court except when a particular case was fixed for hearing. When noted counsel B Sen went to file an appeal, he was requested to split it into two to increase the workload. The then Chief Justice Sir Maurice Gwyer thanked the lawyer for getting more work for the court.
In the 1950s, the list of cases before the Supreme Court was so short that the local papers published them in the day’s engagement columns. Things have changed. Now the cause list runs into more than 150 pages every day. There are 30 judges sitting in 14 court rooms struggling with more than 60,000 cases. Corridors are overcrowded; the aisle leading to the well of the court looks crammed.
Surprisingly, the judges do not seem to be disheartened. They find time to take up issues that are beyond judicial management. Very often they move petitions on their own (suo motu) after reading local newspapers, like in the case of power shortage in the capital (started in 1999), or cleaning the Yamuna in Delhi (1994 vintage). Sometimes, apparently the same issue is taken up again, as in a new public interest case last month, which asks for a ban on the sale of smoking products. The court had already delivered a judgment in 2001 and a comprehensive law exists, at least in the books. But the toxic habit continues to kill 100,000 people every year.
The vast judicial energy spent on unmanageable issues is astounding. Eight years ago, the then judges found the challenge to the special economic zones worth examination. Writ petitions on the subject pending in various high courts were drawn to the Supreme Court one by one for a unified verdict. However, recently, the court disposed of all of them without deciding the validity of the laws and sent some transferred petitions back to the high courts.
In 2002, the court envisioned the inter-linking of rivers in the country to solve all water-related woes and politics. After a decade or more of adjournments for filing affidavits, counter affidavits and rejoinders, a new generation of judges felt that it was for the executive to launch such a venture. It disposed of its own petition with a “pious hope of speedy implementation.” Though a law to set up tribunals to end river water disputes keeps courts out of it, the Supreme Court is willing to hear them. One reason is that the tribunals are all in rigor mortis. Last week, a judge hearing a dispute between Punjab and Haryana realised halfway that he was a member of such a tribunal and recused himself hastily. No river water dispute has been solved by the court in its history, but there are many before it.
Two years ago, the court tried to tame media reporting of court proceedings. A constitution bench heard views from all sides for days together and laid down detailed guidelines for reporting. However, they have been forgotten like yesterday’s headlines. Last week, the chief justice revived the issue of trial by the media and leaks by investigating agencies. Another set of norms might be on the way.
A few days ago, a five-judge constitution bench wrote three separate judgments on ministers with tainted backgrounds. After 10 years of deliberations by different judges, the judgments turned out to be essays on “constitutional morality, good governance and constitutional trust”, with no mandatory directions to any authority. There was much to learn from the erudite dissertations, including what Kautilya said about the qualifications of priests and ministers, and new words not in common dictionaries, like “asservation” and “proponement”. All these admirable scholarships concluded with the hope and trust that the prime ministers and chief ministers, in their wisdom, will act as expected by the Constitution. “We say nothing more, nothing less.” Amen.
These are only a few instances where the court lifted up hefty issues and dropped them halfway, realising its constitutional limitations. While the court spends enormous energy tilting at political windmills, and even suggesting radar and underpasses to protect wild elephants crossing railway tracks, decades-old appeals affecting individual fates are waiting in unending queues. Families might have been ruined in the meantime. It is not uncommon to find the litigants’ names followed in bracket by the note: “dead”.
Little better are industrial units that cannot die in law; they are deemed to be alive and must fight on. Public revenue held up in tax and other commercial litigation is staggering. This has led some chief justices to warn of the impending collapse of the system. The fear may be exaggerated, but it is time for the court to be selective in taking up issues.


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