Pendency of Cases of Constitutional Importance – Explained, pointwise

Introduction

Throughout history, the Judgments of the Constitution Benches have shaped the idea of India in immeasurable ways. They have decided on issues that range from the law on personal liberties (Maneka Gandhi v Union of India) to how territorial boundaries of India’s states should be demarcated (In re: Berubari Union). However, the number of Constitution Benches being constituted by the Supreme Court has drastically decreased over the decades. The Supreme Court constituted an average of about 100 five-judge or larger benches a year in the 1960s. This had decreased to only 9 a year by the first decade of the 2000s. The pendency of cases of Constitutional importance has reached a historically high level along with the overall pendency of cases before the Supreme Court.

What is a Constitution Bench?

Under Article 145(3) of the Constitution, the Supreme Court of India forms Constitution Benches to adjudicate on matters ‘involving a ­substantial question of law as to the interpretation of the Constitution’. 

These Benches may comprise five or more Judges, and are charged with adjudicating the most significant Supreme Court matters.

What is the status of pendency of cases of Constitutional Importance?

The Vidhi Centre for Legal Policy has developed a comprehensive tracker of all the pending cases before the 5-judge, 7-judge, and 9-judge Constitution benches of the Supreme Court. 

According to this tracker, there are 25 main cases pending before the 5-judge constitution bench and 5 cases each pending before the 7-judge and 9-judge benches. These cases relate to significant constitutional and other legal matters that can have serious repercussions on the fundamental rights of ordinary citizens and the core democratic values. There are another 500+ cases related to these main cases that are pending before the Supreme Court.

Some of these cases have been pending for a long time. For example, the 5 main cases pending before the 9-judge Benches of the Supreme Court have been pending for an average of 7,804 days (> 21 years), and these 5 cases affect the fate of 130 other connected matters.

Source: Vidhi Centre for Legal Policy

What are some of the pending cases of Constitutional Importance?

The oldest pending case before a Constitution Bench is the case of Central Board of Dawoodi Bohra Community v. State of Maharashtra. It has been pending since February 28, 1986 (13,135 days or ~36 years). The case also has one tagged matter that has been pending for over 31 years. (Pending before a 5-Judge bench).

Case pertaining to the constitutional validity of the Constitution (One Hundred and Third Amendment) Act, 2019 is also pending. It empowers governments to provide reservations to economically weaker sections for admission to educational institutions and appointments in services to a maximum of 10%.

Other important cases include: (a) Sabarimala Review, which is meant to address the entire body of law regarding how religious freedom cases are decided; (b) Constitutionality of the Citizenship (Amendment) Act, 2019, that provides non-Muslim communities from Bangladesh, Pakistan, and Afghanistan a fast-track route to Indian citizenship; (c) The definition of ‘industry’ under Section 2(j) of the Industrial Disputes Act, 1947; (d) The conflict between legislative privileges and the freedom of the press; (e) The classification of the Finance Act, 2017 as a Money Bill; (f) Validity of Electoral Bonds; (g) Pleas challenging abrogation of Article 370 in J&K; (h) The appointment of Election Commissioners.

What is the need to resolve the pendency of cases?

Pendency Reduction: The Constitutional Bench cases have main matters as well as many connected matters. Disposal of them would help in bringing down the overall pendency of cases in Supreme court. For instance, disposing of the Sabarimala case (Kantaru Rajeevaru v. Indian Young Lawyers Association) will dispose of 64 connected matters. Similarly, disposing of ​​Mineral Area Development Authority etc. v. M/S Steel Authority (Does royalty mean tax?) will dispose of 80 connected matters.

Judicial Credibility: Speedy disposal would help in enhancing the credibility of judiciary in masses and allow it to duly play its role of the Custodian of Constitution.

Maintain Federal Equilibrium: Resolution of cases like revocation of Article 370 would give more clarity on the extent of power exercised by Union over State governments (especially when A 356 is imposed). It will ensure maintenance of federal equilibrium.

Protecting the Democratic Structure: Free and Fair Elections are the lifeblood of democracy which can be ensured only when the mystery over legality of instruments like Electoral bonds is settled by the Supreme Court.

Ensuring Accountability: Issues around the federal structure, elections, and many others, all involve questions of power and accountability. The longer the courts take to resolve such cases, the more we move from a realm of accountability to a realm of impunity.

What are the reasons behind the pendency of cases before Constitution Benches?

Slow Disposal Rate vis-a-vis Institution Rate: Even though the Court is disposing of cases, it is not able to keep up with the inflow of new cases. Further, there has been a rise in the number of connected matters attached with main matters.

Time Crunch: The Supreme Court functions both, a Court of Appeal as well as a Constitutional Court. The decades since 1970 have seen the appeal function steadily cannibalize the judicial time of the Court. Between 1950-54, ~15% of the cases decided by the Supreme Court were decisions of Constitution Benches. This figure had reduced to 0.12% between 2005-09. In 2021, there were only 3 Judgments by Constitution Benches.

Lack of Will: In many cases, Judges lack the will to solve the case in an expeditious way. They prefer adjournments and very few are willing to work for extended hours for quick resolution.

No decision on merits: A Constitution Bench can decide on the question of law but a decision on the merits, for the main and connected cases, might be pending. This enhances pendency before the Constitution Bench.

Identification issues: There is an incoherent understanding of what constitutes a ‘main case’ by the Supreme Court. While the Supreme Court case status might identify a particular one, the response to the RTI application might identify multiple others as distinct cases. Issues of tagging, re-tagging and cross-tagging of cases, also further complicates these numbers.

What steps should be taken to reduce the pendency of cases of Constitutional importance?

First, the immediate need is for the Supreme Court to conduct a thorough and targeted assessment of the number of cases pending before it and comprehensively identify the set of pending issues.

Second, the government should also consider enhancing the overall strength of judges in the Supreme court for reducing the burden on an individual judge. The current sanctioned strength is 34 that can be enhanced for reducing the burden.

Third, a consensus over memorandum of procedure should also be built between the executive and judiciary. This will ensure timely appointment of Supreme Court judges especially when 8 SC judges are going to retire in 2022.

Fourth, there could be a reconsideration of the duration of SC’s vacation. For example, the court worked for 179 days and was on vacation for 61 days, excluding public holidays and weekends in 2016. Any reduction in vacation can help in pendency reduction.

Fifth, the Government and Judiciary can also consider setting up a National Court of Appeal and leave only constitutional matters to the Supreme Court. 

Sixth, in order to reduce the overall pendency of cases, focus should be on establishing more courts and making them virtual where necessary. Further there should be settling of disputes without litigation by strengthening the Alternative Dispute Resolution [ADR] mechanism.

Conclusion

It is high time to take proactive measures for augmenting the capacity of the Supreme Court. This would help in speedy disposal of cases and reduce the growing magnitude of pendency of cases of Constitutional importance. Work must be done keeping in mind that ‘Justice Delayed is Justice Denied’.

Source: The Hindu, The Hindu, Bar and Bench, Vidhi Centre for Legal Policy