Your Lordship, (is that how I should address you ? I’m not sure being a layman).
But, leaving out the legalistic formalities, let me congratulate you first on your observations made on November 6, pulling up the obdurate Governors (most of whom former BJP politicians) for their delay in giving approval to crucial bills passed by legislatures in states ruled by non-BJP parties). You are right in stressing that it is time that everybody including Governors and Chief Ministers did “a little bit of soul-searching.”
Let me highlight the word delay – a term which you have used quite rightly when accusing the Governors of dereliction of their duties. But don’t you think that the seeds of delay are embedded in the very procedural system of our institutions, whether the executive or your own judiciary ? May I remind you that only the other day, on November 3, from your seat in the Supreme Court, you raised the important issue of delay in delivering judgments. Explaining the reasons for such delay, you blamed lawyers for such delay. You asked them not to make the Supreme Court a `tareekh pe tareekh court’ (implying adjournment of a case from one date to another). You requested them not to “seek adjournments unless really necessary.” Citing statistics, you said that from September to October this year there was a total of 3,688 such adjournments sought by lawyers. You may be right in considering most of these pleas for adjournment as not “really necessary.”
But may I request you to turn your attention to the performance of your own colleagues in the apex court ? Don’t they also need to do a “little bit of soul-searching” ? They have also contributed no less to the delay in the delivery of justice. If the lawyers seek adjournments, the judges resort to an equally prevaricating mode by exerting their right to reserve their verdicts – postponing hearing from one date to another, following the principle of tareekh pe tareekh. According to official figures, as on July 20, 2023 there were 29 main cases pending for adjudication before the Supreme Court in the form of Constitution Bench cases. One among of them dates back to the early 1990s (e.g. CA No. 37/1992 – Abhiram Singh vs. C.S. Commachen (Dead) by LRs and others). The term `Dead’ suggests that the disputant died during the long legal proceedings. (Re: Statement by the Ministry of Law and Justice in the Lok Sabha on July 28, 2023 in reply to starred question No. 121).
How do the common people – to whom you want to reach out and assure justice, as you repeated reiterate in your public speeches – view your judiciary ? A survey of litigants in 2016 carried out by Daksha, a civil society organization that undertakes research and activities to promote accountability and better governance in India, revealed that more than 60% of the respondents believed that the delay in the deliverance of justice in their cases was due to the judges not passing orders quickly enough. (Re: Delayed Justice: When judgment day arrives too late. Published in mint, June 7, 2016).
The tendency of your colleagues to sit on cases for months – or even years – and reserve verdicts till an indefinite time, has led to as much delay in the delivery of judgments as the delay that you attribute to the adjournment pleas by lawyers.
Let me draw your attention to a few instances of how the Supreme Court judges had been dilly-dallying with cases which demand immediate settlement, by postponing their verdict through the device of their right to reserve it for some future date. A batch of petitions challenging the abrogation of Article 370 in Jammu and Kashmir in 2019 is still awaiting a verdict from the bench to which they were submitted – even after four years. What are the consequences of the delay ? People in the Valley and Ladakh are seething in anger at being deprived of the rights that they had traditionally enjoyed before the abrogation.
Let me take up another instance of inordinate delay. It has now been six years since the scheme of electoral bonds was introduced in the 2017 budget, that was soon followed by petitions challenging it which were submitted before the Supreme Court. It took the honourable judges of the apex court all these years to finish hearing arguments in the case. Even after that, they hesitated to pass a verdict. On November 2, a five-member bench (incidentally, headed by yourself) reserved the judgment – yet another instance of the use of your right to delay the passing of verdicts. What is the consequence ? The postponement has paved the way for the BJP-run government to notify the next round of sale of electoral bonds from November 6 to 20. It suits the BJP to garner money on the eve of the assembly elections in five states. How could you, being an astute observer of the current political scene, fail to anticipate this result of your decision to reserve the judgment ?
To take up a recent case – a petition challenging the Unlawful Activities (Prevention) Act was taken up by the Supreme Court for hearing on October 18, 2022. Nothing was heard about the case till a year later, when Umar Khalid, a former JNU (Jawaharlal Nehru University) student and activist filed a writ petition challenging the Act, under which he was arrested. Responding to his petition, the Supreme Court on October 20, 2023 tagged his petition with several other petitions against the Act that had accumulated during the last one year. Although more than a year has passed, the honourable judges of the Supreme Court are still mulling over the validity of the draconian law, while hundreds continue to suffer incarceration under the law. Incidentally, it is the same Supreme Court, which earlier on October 12, 2023, denied bail to Umar Khalid (who was arrested in connection with the anti-CAA demonstration in east Delhi), and adjourned the hearing of his plea. May I request you to expedite the process of the hearings on the petitions challenging the Act, so that your colleagues can arrive at a verdict that will put an end to the plight that the victims of the Act are suffering today ?
There is another factor that operates behind the delay in judgments. This begins at the primary stage of listing of cases in the Supreme Court. There are repeated deferrals in listing cases. To cite a recent instance, a batch of petitions concerning the Adani-Hindenburg issue (relating to the exposure of Adani’s financial fraud and malpractices) is yet to be listed. It has been over two months now, since the matter was submitted for hearing in August.
I am not imputing any motive, but I wonder why the apex court had been postponing verdicts (in the name of reserving judgments) on petitions which challenge particular laws and decisions of the government that threaten human rights of citizens – as I specified earlier. Why is it so hesitant in passing judgment on these cases ? Does it want to avoid any confrontation with the government ? Yet, when it comes to your professional interest on the issue of appointment of judges in your court, you are vociferous in protesting against the government’s `delay’ in giving approval to the nominees that your collegium had recommended. Can you please explain to me – a layman ignorant of the niceties and intricacies that cloud the corridors of the legal system – why you and your colleagues are selective in your choice of issues ? Why do you prioritize some issues that concern your interest only and demand immediate solution, and choose to delay taking decisions on other cases that are of concern to the common citizens ?
Given this pitiable record of the Supreme Court in delaying justice during the last several years, as described above, don’t you think that as its present head you should also engage in some personal “soul searching” and take measure to expedite the process of delivering justice ? I’d like to draw your attention to an article by Justice Anand Venkatesh entitled `Dire Need of “A Tall Figure” to guide the Judiciary.’ (Re: Live Law, November 5). Will you be able to rise up to fit into the role of that `tall figure,’ during the remaining period of your tenure as the Chief Justice of India ?.
Sincerely yours
Sumanta Banerjee.
Hyderabad
Sumanta Banerjee is a political commentator and writer, is the author of In The Wake of Naxalbari’ (1980 and 2008); The Parlour and the Streets: Elite and Popular Culture in Nineteenth Century Calcutta (1989) and ‘Memoirs of Roads: Calcutta from Colonial Urbanization to Global Modernization.’ (2016).
