It has for long been a lament of the academic community that India’s Supreme Court has gradually dissolved into an ordinary appellate forum, a far cry from the high constitutional authority that it was envisaged to be. Lawyers have also added their voices to this concern, albeit in a muted manner, because it is after all the bread-and-butter of appellate practice that keeps them at work, rather than the involved perambulations of fundamental rights jurisprudence.
However, in a country which will shortly overtake China to sit at the top of the population tables, and one where the fomenting of litigation is now a diurnal pastime, it seems difficult to confine the apex court to mere issues of the Constitution. Bear in mind that Article 136 of the Constitution allows anybody to file a challenge to the Supreme Court against any order or judgment of any court. This explains why we have over 71,411 cases pending at the moment, of which a paltry batch of 53 are Constitution Bench cases (where at least five judges sit together to answer important questions on the Constitution). Many of these have been pending for several years, some for three decades like the one concerning the rent control laws of Bombay.
Since the turn of the century, it was customary that the convening of the five-judge benches (or larger combinations) would happen from time to time so that a balance was struck between marmalade and bread-and-butter. Nearly every two months, judgments would be pronounced which would have far-reaching implications, as every Constitution Bench ruling allows several pending petitions both before the Supreme Court and the various high courts to be disposed of following the final declaration of law.
Just over the last five years, such benches have delivered verdicts on Aadhaar, privacy, reservations, judicial appointments, temple entry, gubernatorial powers and land acquisition. Of course, they are all important and most of them have been warmly welcomed, but equally, they have been prioritised for hearing over cases that have been languishing for decades to be considered.
The Court has been roundly criticised for its selective manner of listing, and this is rightly seen an institutional failure. Thus, the developments over the past few days have come as a pleasant surprise. By a notice of August 24, the Supreme Court has announced a list of 25 out of the 53 Constitution Bench cases that will be taken up for hearing from August 29, which would be the first day of Justice U U Lalit presiding as Chief Justice of India. One of the rare direct appointees to the Supreme Court, Justice Lalit has previously been both a solicitor and a Senior Advocate of the Court, which has given him a clearer insight into the Court’s functioning than many who have come from the high courts and tried to come to grips with the unique (and often, strange) workings of the top court. Although his tenure is a brief one of just over two months, the notice comes as a strong encouraging sign that the Court is serious about clearing up its massive legal backlog. Significantly, the notice solicits short submissions and time schedules from the lawyers, so that the serious matter of hearing can now start.
While there are other and more topical issues that emerge from this list of cases, what may have far-reaching implications is the case concerning the appointment of the Election Commissioners. Unlike most other entities like the Director CBI, the CVC and the judges who are appointed by broad-based committees or recommended by Collegia, the choice of Election Commissioners is left entirely to the government. Would the Court consider stepping in to balance the scales?
After the Indira Sawhney ruling of 1993, which allowed OBC reservations in jobs and education but rejected the use of economic stratification for such quotas, the Constitution was amended in 2019 to bring in a maximum of 10 per cent for the economically weaker sections. The validity of this is part of the list and awakens interest, particularly as it leads to a different political direction for the age-old quota debate.
Among policy decisions, demonetisation has been by far one of the most controversial ones in India’s recent history – its validity comes up for consideration as well, although, as with the Andhra Pradesh bifurcation, very little survives in the real world. The Supreme Court had directed that no petitions would be entertained by any high court, which led to all orders being solicited at Tilak Marg. Only those who have old notes which were not accepted for swapping may have something to expect here.
A swathe of cases dealing with minorities are also to occupy the Court in coming months — the freedom of religion, which has been at the heart of the Sabarimala case will find itself central to two others, the process of ex-communication among the Dawoodi Bohras and the practice of Nikah Halala. The Andhra Pradesh quota for Muslims as well as the right of Sikhs to minority status in Punjab are also in the fray and could well lead to a complete reset of political strategy in these states.
One can only hope that this is the new normal. It has been customary for practices to vary with each new Chief Justice, but the introduction of strict timelines and a categorical assertion of intent ought to abide well beyond Justice Lalit’s tenure. This would be a worthy legacy for a nation well served.
The writer is senior advocate at the Supreme Court of India