Holidays, yours and minehttps://indianexpress.com/article/opinion/columns/holidays-yours-and-mine-supreme-court-summer-vacation-norms-pending-matters-4610903/

Holidays, yours and mine

Judges can avail of leave without doing it collectively

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The summer vacation system is invariably ascribed to a British colonial legacy, avoiding the hot Indian summer. (File Photo)

The Supreme Court of India issued a notice on March 23: “The Learned Members of the Bar are hereby informed that during the Summer Vacation, 2017, commencing from 11.05.2017 and ending with 02.07.2017, regular hearing matters will be taken up for hearing before the Vacation Bench from Tuesday to Friday, as per the guidelines and norms approved by Hon’ble Chief Justice of India.” The Supreme Court Registry also issued an advance list of 5,298 cases, to be heard between May 11 and July 2. Subsequently, an unstarred question was asked (no. 5250) about this in Lok Sabha on April 5, enquiring whether government intended to discontinue the system of summer and winter vacations in courts.

Answering, the Minister of State for Law and Justice said this wasn’t for the government to decide. The durations of vacations are fixed by high courts or the Supreme Court through rules and regulations, not by the government. For district or subordinate courts, they are fixed by high courts. Hence, the Supreme Court Rules of 2013. “The period of the summer vacation shall not exceed seven weeks… The length of the summer vacation of the Court and the number of holidays for the Court and the offices of the Court shall be such as may be fixed by the Chief Justice and notified in the Official Gazette so as not to exceed one hundred and three days (excluding Sundays not falling in the vacation and during holidays).”

Note that before 2013, there were the Supreme Court Rules of 1966. “The period of the summer vacation shall not exceed ten weeks. The length of the summer vacation of the Court and the number of holidays for the Court and the offices of the Court shall be such as may be fixed by the Chief Justice and notified in the Official Gazette so as not to exceed one hundred and three days (excluding Sundays) not falling in the vacation and during holidays.” In 2013, the length of the summer vacation was shortened, but not the cap of 103. That cap of 103 is misleading; it doesn’t include Sundays and other holidays (Holi, Diwali, Dussehra). At the time of the 2013 change, the then-Chief Justice told us, the Supreme Court works for 193 days, high courts for 210 days and lower courts for 245 days a year. A couple of years ago, the Jharkhand High Court also agreed to work through the summer vacation.

In August 2009, there was a report by the Law Commission, titled Reforms in the Judiciary (Report No. 230). A lot of people quote from this report. I am not necessarily convinced they have read the report. They approvingly quote the following: “Considering the staggering arrears, vacations in the higher judiciary must be curtailed by at least 10 to 15 days and the court working hours should be extended by at least half an hour.” This sentence certainly figures in the report, but as recommendations from a paper written by Justice Asok Kumar Ganguly in Halsbury’s Law Monthly. Lest I be accused of nit-picking, the 18th Law Commission did approve of Justice Ganguly’s suggestions (there were others too).

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The summer vacation system is invariably ascribed to a British colonial legacy, avoiding the hot Indian summer. Some time ago, there was an RTI application addressed to the Supreme Court, asking about the antecedents of the summer vacation. Since the Supreme Court came into existence in 1950, the Central Public Information Officer (CPIO) responded that they had no information about the antecedents. I suspect one should hunt for antecedents in the rules of the Federal Court of India or the Government of India Act of 1935.

There are 61,344 matters pending before the Supreme Court. Therefore, everyone will approve of the Supreme Court’s order of March 23. But what’s more interesting is the idea of a 365-day court, something that lawyers (Bar Council, Supreme Court Bar Association) don’t seem to like either. In 2014, the then-Chief Justice of India wrote a letter to the chief justices of high courts, mooting the idea. “In other words, the courts should function all year round, giving individual judges the choice of holidays and vacations. For working of this idea, I had suggested that by the end of September, each judge should indicate holidays and vacations he or she wants to avail of in the succeeding year. The registry will then finalise the sittings having regard to the options given by the respective judges.”

That’s exactly the way the US Supreme Court functions. But there is great resistance to the idea of delinking individual vacations from collective ones (where the entire institution closes down), and this is true, in general, outside the court system too. In 2013, Suraj Parkash Manchanda filed a PIL in the Delhi High Court, asking this question. According to newspapers, the petitioner asked, “Why do all judges go on vacation at the same time and why can’t there be a rotation as in the police and for doctors in hospitals?” The petition was dismissed and the bench reportedly remarked, “If there is no summer vacation, judges will go mad. Are they expected to work 365 days a year?”

I haven’t been able to track down what happened to a similar PIL, filed before the Madras High Court. No one wants anyone to go mad. Everyone is entitled to leave. Three weeks of paid annual leave is an ILO entitlement. But does it have to be collective? Does India shut down for 21 days a year, defence, police and so on?