By Swarupama Chaturvedi
One can’t expect a sovereign democratic nation to function with its full potential until there are sufficient protectors for its principles and this is where the recent appointment in the apex court is extremely positive moment for all of us. The judiciary is the protector of the principles enshrined in the Constitution of India and it has been performing its role very effectively in all times of crisis. Considering this, every appointment in the apex court has a direct impact on the justice delivery system. The recent appointments could help in reducing pendency of cases and contributing in access to justice effectively.
The nine judges took their oath on August 31, 2021, which is among the biggest number of appointments in the Supreme Court of India at one time. The appointments are a reflection of representation of gender, various castes and many regions of the country. From the perspective of gender representation, it is the best in the history of all appointments in the Supreme Court because it is for the first time that the Supreme Court will have four sitting women judges. The Supreme Court has delivered multiple judgements advocating gender justice and equity, but for the first time that gets really reflected in its own appointments. Another fascinating reflection is the representation of the Scheduled Caste and the Other Backward Caste, which makes this appointment noteworthy and unique in terms of taking care of representation in one appointment.
It can be considered as the beginning of an era where diversity in the profession has also got a place in addition to other criteria which has been in practice so far. Homogeneity of any kind is not an ideal situation and therefore the concept of the infusion from the Bar has been in practice at every level of judiciary, starting from lower court till the apex court. It is also a fact that the infusion from the Bar has also taken place, and therefore, the well recognised legal luminary PS Narasimha became one of those nine names.
Another important point is that all the nine names represent nine different states of India, and therefore, there is good regional representation as well. The newly appointed judges belong to different states like Kerala, Tamil Nadu, Karnataka, Andhra Pradesh, Maharashtra, Madhya Pradesh, Uttar Pradesh, Delhi and Gujarat, which almost ensures representation from major parts of India.
The Supreme Court of India will increase its strength to 33 while the Supreme Court of the United States has a total strength of nine judges. The reason behind this difference lies in the nature of the federal structure provided in the Constitution of India and the United States, respectively, but is also due to the nature of cases to be heard by both Courts. The jurisdiction of the Indian Supreme Court is wider than the Supreme Court of the United States and this is where the real problem stems—pendency of cases before courts. The strength of judges is not in good proportion to take care of that wide jurisdiction for such huge population, and if there is vacancy, then it is indeed a more problematic situation to give rise to the pendency. Insufficiency of strength and pendency of cases are major problems of the Indian judicial system, which has got identified long ago but the system is yet to overcome this problem.
In 1987, the Law Commission of India in its “One Hundred Twentieth Report on Manpower Planning in Judiciary: A Blueprint” has dealt with the problem of judicial manpower planning with the observation that it is one of the areas which has been generally ignored in India’s planned development and even after decades India has not achieved the ideal ratio expected to provide timely justice. In 2014, the Law Commission of India observed in its “Two Hundred Forty Fifth Report, Arrears and Backlog: Creating Additional Judicial (wo)manpower” that the denial of timely justice amounts to denial of justice itself. It further observed that timely disposal of cases is essential for maintaining the rule of law and providing access to justice, which is a guaranteed fundamental right. However, the report indicates that the judicial system is unable to deliver timely justice because of the huge backlog of cases for which the current judge strength is completely inadequate. Further, in addition to the already backlogged cases, the system is not being able to keep pace with the new cases being instituted, and is not being able to dispose of a comparable number of cases. The already severe problem of backlogs is, therefore, getting exacerbated by the day, leading to a dilution of the Constitutional guarantee of access to timely justice and erosion of the rule of law.
Access to justice cannot be given the narrow meaning as to have the option to reach the courts, it is more about accessibility to the court and that is why we believe in the famous saying, “justice delayed is justice denied”. In the case of Imtiyaz Ahmad vs State of Uttar Pradesh and Ors., AIR SC 2012 642, it was observed by the Supreme Court that the timely justice is an important facet of access to justice, the immediate measures that need to be taken by way of creation of additional courts and other allied matters (including a rational and scientific definition of “arrears” and delay, of which continued notice needs to be taken), to help in elimination of delays, speedy clearance of arrears and reduction in costs.
The legislature considered it appropriate to establish tribunals for many special laws and provided direct appeal to the Supreme Court while bypassing the jurisdiction of High Court and other courts. Often appeals against orders of these tribunals involve some question of law on which the decision of the apex court alone can settle the matter for hundreds of cases pending and this is where each appointment in the Supreme Court has the potential to reduce huge pendency not only in the Supreme Court but in Courts below as well. Pendency of cases related to the armed forces, various corporate matters and finance-related cases can be reduced in this way.
The impact of the appointment of nine judges in the Supreme Court on the pendency of cases would be obvious because as per an answer given in Parliament on September 22, 2020, the total number of cases pending in the Supreme Court, as on August 31, 2020, is 62,054; in High Courts, as on September 20, 2020, the number is 51,57,378; and in district and subordinate Courts, as on September 20, 2020, it is 3,45,71,854. Looking at these numbers, getting justice seems to be an illusion. As on August 2, 2021, the total pending cases in the Supreme Court are 69,476 out of which 13,491 matters are such matters which cannot be listed for hearing as they are incomplete matters. Most of these are criminal matters where one may be waiting for justice while under imprisonment for years. Pendency of criminal matters not only affects the accused but it also impacts the victim’s family in terms of finance as well as mental peace. The sense of getting justice or not getting justice can never be compensated by anything else and therefore the appointment to make the Supreme Court functional with almost full strength has created hope in everyone. The condition where the accused gets incarcerated while pending appeal can result in injustice to the accused or suspension of sentence of the accused or granting him bail only because there is delay in disposal of criminal appeal can be reduced and the victim can be saved from the sense of injustice even if it is temporary.
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In criminal cases, the question of getting justice has a different meaning as well as consequence as the accused gets benefit of delay in disposal of appeals while the victim’s side slowly accepts the wrong and often loses hope due to inconvenience and trouble in dealing with litigation. Therefore, in criminal cases, it is important to see when justice is done and whether it is really done timely because if the accused is decided as not guilty then no monetary compensation can be a good enough substitute and the physical and mental trauma that an innocent person could have suffered for years in jail and the hardships faced by their family.
The Supreme Court, all High Courts and subordinate courts in the country are tasked with making justice accessible to all citizens of the country and have stood whenever the judicial intervention was required but poor judicial infrastructure has been one of the biggest hurdles in speedy disposal of justice for decades. Unless judicial infrastructure is improved, we cannot expect an increased pace of justice delivery from the courts. Undoubtedly, the recent appointments have widened the gates of justice and it will indeed contribute in curtailing the pendency before every court because the Indian Supreme Court is not only the last court of appeal but also has writ jurisdiction for protecting fundamental rights enshrined in the Constitution. With the addition of nine judges, the hope lies in reduction in the number of pending cases and that access to justice in the real sense becomes more of a reality.
—The writer is Advocate-on-Record, Supreme Court of India