Long leave the SC

Where is Justice?

Justice to be meaningful must be delivered within a time frame that makes sense during the lifetime of a litigant. Denial of ‘timely justice’ amounts to denial of ‘justice’ itself. Timely disposal of cases is therefore essential for maintaining the rule of law and providing access to justice, which is a guaranteed fundamental right.

The official figures of pending cases, further classified into arrears, clearly shows that the 21st century challenge to the Indian State is that of timely justice. This is so because if timely justice is not made available by the State to its citizens, human and economic development is retarded as disputed contracts, properties and securities lie frozen in the courts for years, mocking the constitutional right to property and the human right to dignity.

The rule of law, another judicially declared component of the basic structure, too, stands dishonoured. The credibility of constitutional governance and a constitutional State gets steadily eroded. Every Chief Justice of India swore by the idea of timely justice and tried to solve the problem, but expectations were more from the current chief justice, who was one among the four judges who staged the unprecedented press conference of January 2018, cautioning that “democracy is in danger” and who avowed that “I will unfold a plan to resolve the crisis of arrears.”

Soon after joining the highest judicial office, Chief Justice Ranjan Gogoi passed an order that judges of the High Courts and the subordinate courts should not take leave on working days, except in an emergency. Surprisingly, this direction was not intended for the SC itself.

As a convention, the Supreme Court usually sits for 176-190 working days in a year (High Court 210 days and trial courts 245 days a year) and the remaining half of the year is vacation/holidays. This includes roughly 104 Saturdays and Sundays, nearly one-and-a-half months of summer vacation, a fortnight of winter vacation, besides several other offs, ranging from a day to a week. And all this in the backdrop of a huge backlog of cases.

Chief Justice Gogoi’s assuming office was followed by one week Dussehra vacation (October 15-20), one week Diwali break (November 5-10) and beginning from December 17, 2018, the Supreme Court had the unusual fortnight-long winter break till January 1, 2019. In the middle of the sexual harassment controversy began the long customary summer vacation (May 13 to June 30). These vacations distract the entire impetus of judicial work.

In addition to these long holidays and vacations, the Supreme Court Judges (Salaries and Conditions of Service) Act, 1958, provides individual judges their own quota of earned/casual/medical leave. And it would be difficult to deny a judge these entitled leaves if she/he wants to avail it.

The limited number of working hours in the Supreme Court and High Courts in these limited number of days compounds the problem. While eight hours a day and 48 hours a week constitute the normal work hours, our judges generally work from 10.30 am to 4 pm, with an hour of lunch break.

These working hours get further marred on Mondays and Fridays of every week on account of ‘miscellaneous day’. As is well known, most judges call it a day before lunch break on both these days. Effectively, it results in 4-4.5 hours a day and 20-22.5 hours a week for most judges. Insufficient judicial manpower working four hours a day on 190 days a year cannot guarantee timely disposal of cases.

While reproducing excerpts of American judgements in their decisions, our judges may find it impressive that despite having relatively lower workload, the Supreme Court of the United States does not have a yearly vacation and gets only 10 holidays in a year. Although the hearing sittings are limited to a few months during the rest of the year, the judges are ‘at work’, reading, researching and holding conferences on the cases before them.

And during the remaining few months that are available to pronounce judgements, they effectively dispose of entire dockets of cases. If the Chief Justice wanted to unfold a plan to resolve this crisis of arrears and delays, he should have first appropriately shortened the long vacations and holidays routinely enjoyed by the judges of the Supreme Court. Such extensive vacationing and holidaying are outdated.

Choice of holidays

The Law Commission of India had suggested that the vacations be shortened by at least 10 to 15 days and the working hours of the court be extended by at least half an hour. It does not, however, appear to be a viable solution. But, if the courts cannot function all year round, giving individual judges the choice of holidays and vacations, as proposed by the then chief justice in 2014, then shortening of holidays/vacation and increasing working hours seem to be a more plausible initiative.

Besides, the entire question of ensuring timely justice has to begin from evidence-based pendency which turns into arrears. The question is, why should pendency be allowed to fester so long that it becomes an arrear. As usual, prevention is better than cure. If analysis is started at the pendency stage itself, then the causes can be pin-pointed and timely action taken by the High Court concerned before matters get out of hand.

The possible solution for pendency and arrears could be case management, court management, witness management, hearings management, and document management, along with deployment of sufficient judicial manpower. How the chief justice addresses this bottleneck in his remaining four months will be the test of the distinction from his predecessors that he tacitly claimed.

(The writer is Registrar, National Law University Odisha, Cuttack)