Supreme Court of India

Rigorous scrutiny of process of distributing natural resources: “Coalgate” judgment advances Supreme Court jurisprudence

GautamBhatia_SupremeCourtofIndiajpgIn a landmark judgment last week, the Supreme Court held that the central government’s allocation of coal blocks to public and private companies during the seventeen years between 1993 and 2010 was illegal and ultra vires the Constitution. The coal block allocation scam, popularly known as “Coalgate”, came to the forefront of the political and legal landscape when a 2012 report by the Comptroller and Auditor General (“CAG”) accused the government of causing huge losses (Rs. 1.86 lakh crore) to the public exchequer in its coal allocations. The same year, M.L. Sharma and Common Cause separately filed petitions before the Supreme Court, challenging the allocation. The petitions were clubbed together and heard jointly by the Court, which delivered its judgment last Tuesday. The political and economic ramifications of Manohar Lal Sharma v. The Principal Secretary (“Coalgate”) are already being felt. The judgment is also of great interest because of its significant contribution to one of the most important constitutional issues in contemporary India: the judicial review of the government’s distribution of natural resources.

The Spectrum Cases – the Supreme Court’s scrutiny of process and policy

In a previous post here, I had discussed the Supreme Court’s opinions in the “2G Spectrum Cases”. In the First Spectrum Case, the Court invoked the principle of equality under Article 14, the common law doctrine of “public trust” (that is, the government acts as a trustee of the people in its ownership and distribution of natural resources), and the requirement of managing natural resources in order to serve the common good (drawn from the Directive Principles of State Policy) to hold that a public auction was the only acceptable way of distributing natural resources to private parties for exploitation. In other words, the Court not only scrutinised – and invalidated – the process by which distribution took place, but also the policy. The Court’s judgment (I argued) conflated two separate issues: the government’s obligations under the Directive Principles and the public trust doctrine, and the Court’s power (or lack thereof) to enforce those obligations. In deciding not only upon the process, but also the policy of allocation, the Court overstepped its authority in entering a field that was both beyond its competence and its legitimacy.

After the First Spectrum Case, the Court embarked upon a process of self-correction. In the Second Spectrum Case (a Presidential reference), the Court limited the holding of the First Spectrum Case only to spectrum allocation, and held that it did not lay down a requirement for public auctions being the only legitimate methods of distribution in all cases. The Second Spectrum Case left open the question, however, of the extent to which the Supreme Court could substitute its own opinions about legitimate policy for that of the government, and various observations in that case point in different directions. In Coalgate, the Supreme Court has gone a long way towards answering that question.

Before the Court, the petitioners contended that the coal block allocation violated statutory requirements under the Mines and Minerals (Regulation and Development) Act, 1957 and the Coal Mines (Conservation and Development) Act, 1974 as well as the public trust doctrine, and Article 14. In paragraphs 12 through 73, the Court examined the statutory question (see an analysis here), and found that the allocation was illegal. Ordinarily, this would preclude any need to examine the constitutional question. However, perhaps in view of the government’s history of amending laws retrospectively to get around court decisions, the Court then proceeded to consider the constitutional questions as well.

The Supreme Court’s refusal to second-guess government policy

SupremeCourt_CoalgateThe process of allocation was done by a Screening Committee constituted by the Ministry of Coal. In paragraph 82 of its judgment, the Court framed the three constitutional issues that arise for its consideration: first, whether the allocation of coal blocks ought to have been done via public auction; secondly, whether the allocations based on the Screening Committee’s recommendations were unconstitutional; and thirdly, whether the allocations made via government “dispensation” (through the Ministry of Coal) were unconstitutional. The Court settled the third question on the basis of statutory violations (paragraph 153). Therefore, we shall focus here on the first two questions. Notice that while the first question pertains to the policy of allocation (public auction versus all other methods), the second question is about the process of allocation.

The Court correctly noted that the first question required it to consider the two spectrum cases discussed above. Affirming the Constitution Bench’s opinion in the Second Spectrum Case, it noted the Central Government’s contention that the increase in input price (due to a public auction) would have a “cascading effect” upon the economy (paragraph 100), the detailed objections of the state governments (such as, for example, that auctions would lead to the concentration of industries) (paragraph 100), and the supply-demand mismatch in 1993 (paragraph 102). On the basis of these considerations, the Court held:

WorkSafeAntiSexualHarassment“[We] cannot conduct a comparative study of various methods of distribution of natural resources and cannot mandate one method to be followed in all facts and circumstances, then if the grave situation of shortage of power prevailing at that time necessitated private participation and the Government felt that it would have been impractical and unrealistic to allocate coal blocks through auction and later on in 2004 or so there was serious opposition by many State Governments to bidding system, and the Government did not pursue competitive bidding/public auction route, then in our view, the administrative decision of the Government not to pursue competitive bidding cannot be said to be so arbitrary or unreasonable warranting judicial interference. It is not the domain of the Court to evaluate the advantages of competitive bidding vis-à-vis other methods of distribution / disposal of natural resources.”

This is consistent with the opinion in the Presidential Reference Case, namely that an auction is required only when the aim of an allocation is to maximise revenue (because clearly, under Article 14, an auction is the only method that bears a rational nexus with an objective of revenue maximisation), but that it is open to the government to have objective other than revenue maximisation, which are also consistent with the public trust doctrine and Article 39. In this case, the Court examined the material on record, which clearly indicated that the government’s objectives went beyond direct revenue maximisation, and refused to substitute its own opinion of which policy would be most consistent with public trust and the Directive Principles. This is exactly how it should be.

Absence of relevant guidelines: Constitutional infirmity in the procedural lapses

The Court then examined the process of allocation, via the Screening Committee. In Paragraphs 109 through 151, it examined the minutes of the 36 meetings of the Screening Committee between 1993 and 2005. The Court found that in its first seventeen meetings, the Screening Committee, at no point, examined the inter se merits of the various applicant companies (paragraph 128). Even when, in its eighteenth meeting the Steering Committee did raise the question of framing guidelines for making that determination, no guidelines were actually framed (paragraph 132). And even when guidelines were framed, the Court found that they “did not lay down any criterion for evaluating the comparative merits of the applicants.” (paragraph 134) The Court noted that in its subsequent meetings, the Screening Committee made its allocations without a discussion about the inter se merits of the applicant companies (see, for example, paragraph 135, 137, 138, and 139 for specific instances), and even changed its own guidelines repeatedly (paragraph 136). In 2005, for the first time, the Screening Committee advertised for applications, but yet again, its allocations demonstrated no comparative assessment or evaluation of the applicants (see, for example, paragraphs 143, 146.1, and 148 for specific instances).

On the basis of these findings, in paragraph 150, the Supreme Court listed twenty-two procedural flaws with the allocation process, most of which had to do with the absence of any considerations about the inter-se merit between the applicant companies, the lack of any objective criteria for making that determination, and the constant changes in the norms and guidelines.  Thus, in paragraph 154, the Court held:

(From left to right), Chief Justice R.M. Lodha, Justice Madan B. Lokur, and Justice Kurian Joseph of the Supreme Court of India, the bench in the "Coalgate" decision.
(From left to right), Chief Justice R.M. Lodha, Justice Madan B. Lokur, and Justice Kurian Joseph of the Supreme Court of India, the bench in the “Coalgate” decision.

“To sum up, the entire allocation of coal block as per recommendations made by the Screening Committee from 14.07.1993 in 36 meetings and the allocation through the Government dispensation route suffers from the vice of arbitrariness and legal flaws. The Screening Committee has never been consistent, it has not been transparent, there is no proper application of mind, it has acted on no material in many cases, relevant factors have seldom been its guiding factors, there was no transparency and guidelines have seldom guided it. On many occasions, guidelines have been honoured more in their breach. There was no objective criteria, nay, no criteria for evaluation of comparative merits. The approach had been ad-hoc and casual. There was no fair and transparent procedure, all resulting in unfair distribution of the national wealth. Common good and public interest have, thus, suffered heavily. Hence, the allocation of coal blocks based on the recommendations made in all the 36 meetings of the Screening Committee is illegal.”

It is crucial to note the Court’s assessment of the policy vis-à-vis the process. The Court upheld the non-use of a public auction as a method of distribution because, on a prima facie perusal of the material placed on record by the government, there were evident purposes behind the allocation that went beyond revenue maximisation. The Court did not substitute its own opinion of the legitimacy and validity of the purposes. On the other hand, while holding the process illegal, the Court did so on the basis that the government had placed no material to demonstrate how the allocations were made in a fair and non-arbitrary way. Therefore, much like its holding on the issue of auction, once again, the Court did not go into the question of whether the outcome of the government’s decision on allocation was valid or not, or into the merits of the guidelines; it restricted itself to the question of whether, in the process of allocation, the guidelines included essential considerations of merit and competence for deciding between applicant companies or not. It was the absence of relevant guidelines that constituted the basis of the Court’s decision, holding that the allocation was illegal.

Coalgate, therefore, represents an advance upon the route first marked out by the Court in the Second Spectrum Case. The Court will examine, for legality, the process of distributing natural resources. It will examine whether, during the process, the government has taken into account relevant considerations to ensure transparency and fairness. It will not, however – keeping in mind considerations of institutional competence and legitimacy – question the outcome of the process, or the policy behind the process.

The Court’s judgment is pragmatic and wise, and deserves to be lauded. One question remains open, however: what if the Screening Committee had prescribed guidelines for deciding inter-se merit between applicants, but the petitioners argued that the Committee’s allocation was contrary to its own guidelines? In other words, what degree of scrutiny will the Court apply to the government’s implementation of its own procedures, when disputed factual issues arise? Unlike an auction, where a violation of the results of the auction can be objectively determined, that enquiry is much harder to undertake when standards are at least partly subjective. Will the Court apply a hands-off test, taking the government’s determinations at face value, and insisting only upon the presence of guidelines (as it does, for instance, under Article 356) or a proportionality test, drawn from administrative law? Or, keeping in mind the principles of public trust and Article 39, will it subject them to a more rigorous scrutiny? Perhaps we need another Constitution bench to decide that question.

(Gautam Bhatia blogs at Indian Constitutional Law and Philosophy.)

Supreme Court of India

“The membership of the National Board for Wildlife did not conform to the Wildlife Protection Act”

SanjayUpadhyay_EnvironmentalLawyerTwo days ago, the Supreme Court of India restrained the National Board for Wildlife (“the Board”) from implementing its decisions. The order was particularly significant because the Standing Committee of the Board had very recently cleared more than 140 projects that had been awaiting its approval. The approval of the Board is a requirement under Section 29 of the Act, that has to be fulfilled before any such activity can proceed in national parks and wildlife sanctuaries.

The Court had found prima facie that the constitution of the Board violated the provisions of the Wildlife Protection Act, 1972 (“the Act”). Sanjay Upadhyay, the environmental lawyer who is representing the petitioner in this matter, explained the illegalities highlighted in the petition.

He said that Section 5A of the Act envisages that the Board should have ten independent experts including environmentalists, environmental experts, and ecologists, and five non-governmental organisations. A notification issued on July 22, 2014, however, only talks about two experts – “a retired forester from Gujarat and the other is a retired scientist from the Indian Institute of Science in Bangalore”.

“Without going into the merits of who they are, the fact is that there were supposed to be ten of them but there are only two.” Secondly, there is only one NGO, the GEER Foundation from Gujarat, headed by the Chief Minister of Gujarat. “It is fairly well known that it is a government controlled NGO.” Further, ten states had to be appointed but only five were.

The view taken by the petitioners therefore is that the membership of the National Board for Wildlife that has been notified does not conform to the Wildlife Protection Act, 1972. “Prima facie, the Court has decided that the constitution of the National Board for Wildlife is not in accordance with the Section 5A of the Act. The second part of the order is that the Board may function but they may not give effect to any decision of the Board until the next date of hearing.”


Human Rights Supreme Court of India

TRAI’s media ownership recommendations rest on contested understanding of free speech

GautamBhatia_SupremeCourtofIndiajpgOn August 12, the Telecom Regulatory Authority of India (“TRAI”) released a set of recommendations on issues relating to media ownership (Medianama has a great summary, available here). TRAI’s recommendations cover a range of topics, including political and corporate control over the media, issues of horizontal and vertical integration, private treaties, and paid news. The background of the enquiry is revealed in the Introduction. The second paragraph, for instance, notes that: “the right to freedom of speech is essential for sustaining the vitality of democracy. This is why the right is sacrosanct; it is fiercely protected by the media. The question that arises is whether reposing such a right in the media simultaneously casts an obligation on the media to convey information and news that is accurate, truthful and unbiased… the point is: is not the right of readers and viewers to access unbiased and truthful information from the media embedded in the right of the freedom of speech of the media?” (1.2)

Speaker’s freedom of speech and listener’s freedom of speech – Supreme Court decisions split between libertarian and social democratic approaches

Is it, though? Some countries have embedded this viewpoint in their constitutional texts. The German constitution, for instance, guarantees to everyone the right to “freely inform himself from generally accessible sources.” The International Covenant on Civil and Political Rights, whose language is closely mirrored by the South African constitution, protects the right to “seek, receive, and impart information.” These constitutions accord equal weight to the interests of both parties to a system of communication: the speakers (that is, in this case, the media), and listeners (readers and viewers). By comparison, Article 19(1)(a) is sparsely-worded and speaker-oriented: “all citizens shall have the right to freedom of speech and expression.”

InfrastructureLawOver the decades, Article 19(1)(a)’s inconclusive language has divided the Supreme Court of India. Judicial history reveals two distinct – and contrary – understandings of our free speech clause. Let us call these the libertarian understanding and the social-democratic understanding respectively.

According to the libertarian understanding, the free speech clause protects the interests of speakers against coercive governmental control. Freedom of speech exists so that the street-corner orator and the dissident journalist can disseminate their opinions to the public without fear of State persecution or censorship. State regulation that curtails the power of any entity to “speak” is therefore presumptively unconstitutional (it might, of course, be saved by Article 19(2)). The libertarian understanding is best exemplified by the Supreme Court’s newspaper-regulation cases, starting with Sakal Papers v. Union of India, in 1960. In that case, the government imposed a price-per-page regulation upon newspapers, and also restricted the number of advertisements they could carry, as well as the volume of Sunday supplements. The affected newspapers took the case to the Supreme Court. The government argued that the purpose of the regulations was to break the market-monopoly enjoyed by established newspapers. Because of economies of scale, such newspapers were able to keep their prices so low, that they became a veritable entry-barrier for new newspapers to access the market. Or, in other words, the regulations were aimed at facilitating the free speech interests of the public (to have access to a diverse set of sources of news) and non-established media players who wished to enter the market. The Supreme Court rejected this contention, and struck down the regulations on 19(1)(a) grounds.

The government’s argument in Sakal Papers reflects the social-democratic understanding of free speech. Free speech – on this view – is an integral part of democracy, and its value – to quote the American Supreme Court judge Hugo Black – “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” The roots of the argument go back to the great free speech scholar Alexander Meikljohn, who argued that if citizens are to effectively participate in the democratic project, then they must have access to information and iHugoBlack_freepressdeas on the basis of which they can formulate sound opinions about the common good, and exercise refined political judgment. Unlike the libertarian understanding, which puts State and individual at odds, the social-democratic understanding views State and individuals as collaborators in an enterprise aimed at creating thriving and vibrant public sphere. On this understanding, the market – just as much as the State – can become an impediment to this project (as was the case in Sakal Papers).

The Supreme Court in Bennett Coleman affirmed the decision in Sakal Papers (over a strong dissent by Justice K.K. Mathew). In other cases, however, the Court has adopted the opposite viewpoint. In LIC v. Manubhai D. Shah, it imposed a compulsory right-of-reply upon the in-house journal of the Life Insurance Corporation, so that readers could have access to both sides of a debate. And in Cricket Association of West Bengal – which was a case about broadcasting regulations – it famously held that “it is justified by the Government to prevent the concentration of the frequencies in the hands of the rich few who can monopolise the dissemination of views and information to suit their interests and thus in fact to control and manipulate public opinion in effect smothering the right to freedom of speech and expression and freedom of information of others.”

The basic concern of the social-democratic approach – as vividly exemplified by the quoted excerpt – is that the freedom of speech, in today’s world, is mediated by a market-based infrastructure (televisions, newspapers), access to which is often in the hands of non-State parties. If the goal is to create a thriving public sphere, then regulating this market becomes not only desirable, but positively necessary.

TRAI recommendations go beyond competitiveness in the media market

Mukesh Ambani’s Reliance Industries has made a large investment in Network 18, a holding company for several Indian media entities.

With the Supreme Court’s jurisprudence split down the middle, the TRAI Recommendations unambiguously take the side of the social-democratic approach. For instance, in the Introduction itself, TRAI rejects the argument that the existing regulatory regime of competition and anti-trust law, which is aimed at preventing market dominance in a way that stifles effective competition, is sufficient in the sphere of the media. It notes that the media cannot, and should not, be bracketed with general commodities and services… the principles adopted in the competition law may not serve the special purpose of addressing the need for plurality of news and views.” (1.12) This is a particularly interesting observation. On the libertarian model, government intervention should be restricted to cases of market failure, which are specified in an effective competition law regime. The TRAI Recommendations are based on the premise, however, that because of the importance of free speech to the democratic project, it is not sufficient merely to maintain a threshold level of competitiveness, but intervene further in order to ensure the goal of plurality.

These ideas come to the fore in TRAI’s substantive recommendations. In Chapter Two, it is concerned with defining the concept of “control” in the case of media companies. “Control” is defined both in the Companies Act, and by the Competition Commission. TRAI observes, however, that “in view of the sensitivity surrounding the diversity of news and views in a democracy, it is important to frame rules to include all possible mechanisms by which an entity can influence a media outlet… a comprehensive definition of control [is required] exclusively for the media industry.” (2.9) TRAI’s final definition of control is wide-ranging, and includes “covert understandings” that enable entities to control “decision-making in the strategic affairs… and appointment of key managerial personnel” of a media outlet. (2.13)

External and internal pluralism

The definition of control is central to assessing the “diversity” of media markets, and it is the objective of achieving diversity and plurality that constitutes the core of TRAI’s Recommendations. Chapters Three and Four address issues of “external pluralism” – that is, diversifying ownership and control, and preventing vertical integration of media markets. When identifying the relevant “market” in order to address cross-media ownership issues, TRAI restricts itself to the news and current affairs genre, because of its centrality to “influence[ing] the opinion-making of citizens.” (3.13) It restricts the relevant segments to television and print (excluding the Internet) because of the reach they enjoy. And it defines the geographical market in terms of language, and the State in which that language is spoken in majority. For example – to use the example TRAI gives – a relevant “market” (to assess issues of concentration and diversity) would be Bengali newspaper and television market, which is engaged in the dissemination of news and current affairs, in West Bengal. (3.28) As one can see, the dominant idea is that the average Bengali consumer’s main source of news is Bengali television and Bengali newspapers. Plurality within this market, so defined, is therefore of utmost importance. The Recommendations then go on to make technical suggestions about the regulations needed to prevent and dilute concentration.

APCCLP_CompanyLaw-BannerThe TRAI Recommendation are not, however, limited to ensuring external pluralism by enabling a diversity of voices to access the marketplace. Chapter Five addresses concerns of internal pluralism – that is, not just who is speaking, but what is being said. Here, the Recommendations address the problems of paid news, private treaties (through which a media entity acquires shares in a corporation in return for favourable reporting), advertorials (advertisements which, in form, content and placement, provide a misleading impression that they are news reports), and the blurring of ownership and editorial functions. TRAI recommends statutorily rules that expressly proscribe these practices. As we can see, these recommendations are grounded in the idea that the freedom of the media to communicate is subordinate to its responsibility to ensure that the content of what it communicates is free of vested interests. This takes us back to the social-democratic understanding of free speech, where the ultimate objective is to ensure that no entity – whether the State, using its coercive power, or private players, using their market power – can distort the free and holistic circulation of ideas and information in the public sphere.

Taken as a whole, the Recommendations are rich and detailed, and provide much food for agreement as well as disagreement. For instance, restricting the product market to “news and current affairs” ignores the pervasive influence of culture in the public sphere. Indeed, it rests upon a particularly constricted idea of free speech and “democracy” (that, as being restricted to the explicitly political) that was first propounded by Meiklejohn, but which he himself subsequently repudiated, in favour of a broader understanding. Nonetheless, the aim of this essay has been to demonstrate that the best way of understanding and assessing these Recommendations is to ground them within a particular (and contested) understanding of Article 19(1)(a), that has – at least partially – been endorsed by the Supreme Court.

(Gautam Bhatia blogs at Indian Constitutional Law and Philosophy.)

Human Rights Supreme Court of India

Where process is punishment: Supreme Court shows how additional police powers in terror laws encourage injustice

ShadanFarasat_SupremeCourtofIndiaOn July 18, the Supreme Court delivered a judgment releasing from custody, twelve men who had been accused of orchestrating the blasts in Surat in 1993. Justices T.S. Thakur and C. Nagappan delivered the decision titled Hussain Ghadialy and Others v. State of Gujarat in Criminal Appeal No. 92 of 2009. The judgment itself does not point out the period for which the accused had been incarcerated. Given that the blasts happened over twenty-one years ago, it would be reasonable to presume that the accused had spent over fifteen years in custody for an offence that the Supreme Court has now determined they did not commit.

Justices Thakur and Nagappan of the Supreme Court of India.

Speaking for the Court, Justice T.S. Thakur held that the under Section 20A of the now-lapsed Terrorist and Disruptive Activities Act, 1987 (“TADA”), the approval of the District Superintendent of Police was necessary before any information about the commission of an offence under the provisions of TADA can be recorded. In this case, no such permission was obtained. All proceedings under TADA therefore, stood vitiated. The only evidence against the accused was their confessions before the police, which could be admitted as evidence under Section 15 of TADA. Since the provisions of TADA were not applicable however, the convictions could not be sustained without independent evidence.

In another recent judgment, that of A.S. Ajmeri v. State of Gujarat, Criminal Appeal No. 2295-96 of 2010, delivered on May 16, another bench of the Supreme Court released on very similar grounds, the accused under the Prevention of Terrorism Act, 2002 (“POTA”). In this case too, the police force involved was the  Gujarat Police and the Court passed severe strictures against them.

LawSchoolInductionThese two cases really highlight the severe damage caused by the provisions of these draconian laws. Far from making the apprehension and conviction of actual terrorists more credible, these provisions gave the police another tool to frame innocent individuals only to show that the case has been solved, even as the actual perpetrators of such violence remain un-apprehended.

The more recent case before the Supreme Court was one of the many where the sole basis for conviction in a TADA case was the confession before the police. Under the normal criminal law, such confessions are inadmissible as evidence. In most of these cases, the designated TADA courts have given too much leeway to the prosecution and convicted the accused only on the basis of a confession before the police, even though there were serious irregularities in the initiation of proceedings under TADA or in the recording of the confessions, which are very often fabricated. Under TADA, the first and only appeal lies to the Supreme Court. By the time the Supreme Court finally corrects these errors and acquits the accused, more than a decade has passed. The process itself becomes the punishment.

While TADA itself has been repealed, many of the questionable convictions made under this law are still pending appeal before the Supreme Court. Even if the accused are released in these appeals, given the absence of jurisprudence in India over compensation for wrongful or malicious prosecution, they are usually not granted any compensation for the crucial years of their life that they spent in custody. After the years of incarceration, most of the accused are just happy to be out of jail and reunite with their families.

policeindiaThis experience with TADA and POTA shows that draconian provisions giving additional powers to the police, especially in relation to the admissibility of evidence is, in the absence of genuine police reform, likely to encourage an already compromised police force to misuse them to frame innocent civilians while the real perpetrators roam free. The solution lies in having a more professional and uncompromised police force that is able to honestly investigate and solve both regular crimes and terrorism cases alike.

Shadan Farasat is an Advocate-on-Record at the Supreme Court of India.


Supreme Court of India

Speedy justice versus court vacations: A false dilemma

NoticeAndStayAdityaVerma_SupremeCourtcolumnThere is a theory that legislation in support of compulsory military service for those who turn eighteen is very easy to get popular support for. Those who vote on it will never be directly affected by it, and those who will be directly affected do not have a vote. Lawyers as a class do not tend to get much public sympathy either (one wonders why!). It should come as no surprise then that the debate about scrapping court vacations has been publicly characterised as “lawyers (who oppose the proposal) versus everybody else (litigants and judges)”.

Such a characterisation does not do justice to the gravity of the issue at hand. The suggestion of the Chief Justice of India is a serious one and deserves thoughtful consideration. Instead of it being a concrete debate with number and figures, what we have today are platitudes about docket backlog, interspersed with remarks about how lawyers love their vacations (they do, nothing wrong in that!) and whether they deserve them (which is the wrong question).

The correct question is about defining clear targets for the legal system to improve the pace and quality of delivery of justice. Despite its abstract moral grandeur, administration of justice is ultimately a service provided by the State. Different courts deal with different kinds of cases and have varying levels of docket backlog. Consequently, strategies to reduce case pendency have to be court-specific. From this perspective, the process of consultation initiated by the Chief Justice is a welcome step. However, if responses to the consultation process are limited to the question of doing away with court vacations, it will be difficult to assess the success of such a measure in reducing case pendency due to the absence of specific targets.

Our collective aim must be to reduce case pendency without compromising on the quality of administration of justice. The length of vacations (or their absence altogether) is only an instrument to that end. The proposal of 365-day courts is only a skeletal one at the moment, which raises legitimate concerns for advocates in particular. When can an advocate travel out of station? What would the court’s policy be on granting adjournments if an advocate is away on holiday? Will there be different standards for Advocates-on-Record? Will this make it more difficult for clients to rely on individual practitioners (as opposed to larger law firms where one advocate may be able to step in for another more readily)?

Chief Justice of India, Justice Rajendra Mal Lodha. Image is from the Press Information Bureau.
Chief Justice of India, Justice Rajendra Mal Lodha. Original image is from the Press Information Bureau.

If a court-specific approach is adopted, naturally, the best place for the Chief Justice (together with the Ministry of Law and Justice) to start tackling case pendency will be the Supreme Court. Numbers and figures of case pendency for the Supreme Court are relatively easily accessible. The next step in the debate should be to identify the kinds of cases which merit priority (for instance, criminal and matrimonial cases), and publicly communicate statistically achievable overall targets of case disposal in the short and medium-term.

If meeting these targets requires reducing vacation periods, appointment of more judges and increasing their retirement age, ad hoc appointment of retired judges for specific cases, tweaking the daily working hours of the Court, altering the weekly split between ‘miscellaneous’ hearings and regular hearings, detailed ‘case management’ hearings in complex cases (illustration here), strict and consistent policies on adjournments, or even increasing the capacity of the Supreme Court registry, then those measures should be adopted. Without having particular outcomes in mind we can be sure that we will never fall short. Nor will we know how much we should have achieved!

(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is on the roll of solicitors in England and Wales.)