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Do judgements contribute to pendency pandemic?

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Pendency has been a Pandemic which has infected and impacted the efficacy of Judiciary for ages. Tomes have been written on it. The Seminar Circuit has been overworking with workshops. Law Commission after Law Commission have sat to deliberate, delineate and disseminate on the whys and hows to tackle it. Multiple reasons have been alluded to, by multiple jurists, experts and academicians, as to the causes. Now add one more to our litany of woes.

Lawyers and Judges form the epicentre of Judiciary. “It is of an old boy’s club genre”, said Justice V R Krishna Iyer, in his impish style. The judgment from the Full Bench of the Madras High Court on 28th May,2020, in Rajalingam vs Suganthalakshmi, has brought home the truth, that lack of consistency, uniformity and uneven/imbalanced reliance on the Law of Precedents, could be in the feeder category for mounting pendency. The Full Bench may have helped rid the uncertainty. But for how long? Let us explore.

It all goes back a long way when Justice J C Shah (he of the Shah Commission fame vis a vis Emergency excesses of the then Indira Gandhi dispensation) suggesting ways and means to peg the pendency and seek early closure. Judiciary has not been loathe to admit its hand and self-introspected too. We have had the spectacle of Chief Justices of High Court issuing Circulars to brother/sister judges to keep a timeline while reserving orders for pronouncing verdicts. (Chief Justices Sanjay Kishan Kaul and Chief Justice Vijaya Tahilaramani, then Madras High Court, had issued such circulars reminding their brothers and sisters to pronounce judgments as expeditiously as possible) This, on the basis of a verdict of Supreme Court in Anil Rai case of 2001 vintage.

Multiple reasons have been cited, as the cause for this burgeoning docket explosion. The citizens are now better aware of their rights and knock the doors of courts for vindication of the same. The per capita number of judges for our population is abysmally low. The procedure and practice of filling up vacancies in Courts is long drawn and time consuming. Lawyers avail adjournments and obtain it for the asking. The summer vacations are always cited as a bogey.

The devotion of time by Judges in Committees related to administration and management of Judiciary viz. such as even Canteen Committees, Car Park Committees, Libraries, not to talk of Promotions and Disciplinary control over personnel and countless numbers thereof, inevitably eats into their judicial time. Of course, the case management in choice of portfolios, grouping of matters and sequencing them have also to be concentrated on. A tough call for the conscientious judges. Why should the quality time of Judges, already under tremendous time pressure, be dissipated in court management affairs? Why cannot there be a dedicated management cadre of the kind that UK and US boast of, relieving the judges to deal with causes which they are meant to resolve? Why not? NALSAR University even offers a course in Court/Case Management, but few takers, as Judges have not vacated the posts in Committees.

Solutions have been suggested for long. Soli Sorabjee was anguish itself when he said in a Nani Palkhivala Memorial lecture , “It is a very sad commentary that at the present rate of pendency, filing and disposal, even if we were to freeze all further filings, it may be a good 350 years for present pendency Pan India to be brought down to zilch.” Nani Palkhivala himself talked of it in these sarcastic tones, “Law may or may not be an ass: but in India it is a snail- it moves at a pace which would be regarded as unduly slow in a community of snails”.

 

Of course, Chief Justice M C Chagla was himself, when he talked of Parkinson’s Law. He said as only he could with the authority from the pulpit, “We need quality not quantity. Numbers matter only when the Judges belong to the office. It is an aspirational post for the competent, willing to sacrifice, as it is a thankless job of immense responsibilities. We therefore must pick the best we can. Pendency would then get taken care of by itself”.

Be that as it may, one more genre that has always raised its head, every not so infrequent now and then, is the continuing flux in the binding nature of the verdicts. Under Art.141 of the Constitution of India, what the top court lays down is law of the land. Our Supreme Court sits in benches of twos and threes and at times we have Constitution Benches of 5 or more. (In Keshavanand Bharati, in an all time record, 13 judges sat to hold that amending power of Parliament was circumscribed by the fundamental rights. Basic Structure of the Constitution was sacrosanct and even Parliament cannot amend it). By reason of this practice, there are occasions when two benches of equivalent strength may go their own tangential ways, introducing avoidable uncertainty in the legal position. It happens all the time. Instances are far too many over the years and there appears to be no vaccine in sight to deal with this virus. Truth to tell, the legal profession thrives in this environment to exploit it commercially, to the eternal regret of the litigant public.

On this occasion, it was the decision of the Supreme Court in Sathyapal which became grist for the uncertain mill. The Madurai Bench, Full Bench in Ganapathy followed Sathyapal (SC) as it had to, in holding that all appeals against acquittal of accused in private complaints vis a vis ‘cheque bouncing cases’ under Negotiable Instruments Act,1881, had to be instituted before Sessions Courts and not before High Court. Ganapathy (FB) was oblivious of a binding verdict of Supreme Court itself, as the counsel in attendance, had not done their homework.

 

Hundreds of appeals pending before the High Court went packing to Sessions Courts in various Districts in Tamil Nadu. Further appeals also got filed after April,2016. In the wake of subsequent decisions of Supreme Court in Mallikarjun Kodagali ( SC) and Naval Kishore Mishra(SC), it became necessary for the present Full Bench to test the correctness of the earlier Full Bench in Ganapathy, thanks to the orders of a single judge in Justice P N Prakash, who noted the discord and disharmony at play.

The result is that Ganapathy (FB) has been declared now to be per incuriam or not binding, as not based on good law, as a binding verdict of apex court was not brought to its notice. And now all the appeals sent packing to the various Sessions Courts are now coming back to haunt the High Court – lock, stock and barrel. Hundreds and hundreds of them.

The collateral consequences of appeals now pending before Sessions Courts, those disposed of already, and those challenged and disposed of by High Court, or those acquiesced in inter se by contesting parties, are humongous, adding to the pendency, even if the missing element of consistency and uniformity have now been introduced by the judgment dt.28th May,2020. In effect, it is not so peculiar a case of Supreme Court verdicts, of inconsistent nature, being the root cause for uncertainty at times, and adding to the pendency, as on this occasion.

The Full Bench in Rajalingam may have untied the Gordian knot. But, only for now. How long? No one can hazard a guess, going by the mysterious ways of the mistress that law is. Who is to say that a member of the legal fraternity sitting in the claustrophobic chambers in these Pandemic times, is not plotting and devising ways to muddy the now clear waters? No one is to blame, as law by its very construct is not immanent. It morphs and morphs. May be it is the duty of the Supreme Court, sitting as the last resort, to envisage the collateral damages arising from even the inter se verdicts and try to factor them in, for a focused missile challenge on the causes. Just as the Covid-19 virus is not going anywhere until a Vaccine is discovered, this pendency Pandemic too is not going anywhere until a vaccine is found by superior Judiciary, to administer to itself, quite heavy doses of the same.

(Narasimhan Vijayaraghavan – Author is practising advocate in the Madras High Court)

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