Is justice centralised, justice denied? Chennai resident H. Ganapathy certainly feels so, having spent all his post-retirement years sorting out pension-related issues between bank and bank employees through the Pensioners Association. Often, this results in a court case. And very often, it goes to the higher courts as well. Unfortunately, by the time appeals reach the Supreme Court, it’s mostly heartbreak time for the litigant, and for Ganapathy. Indeed, it’s almost as if the odds are stacked up too high for people like him.
Take the case of M. Ishwaran who worked for 22 years as a ‘matty’, a kind of office assistant, but was not eligible for pension as he was 39 when he joined (the cut off age was 38 then). After petitioning in the Madras HC where he lost and again before a division bench of the same where he won (the clause had been revised), the case went up to the Supreme Court. He lost again in 2008 and died subsequently, just another statistic among the thousands of litigants who buckle under the pressures of fighting for their rights.
In the din surrounding the Judicial Accountability Bill and the National Judicial Appointments Commission Bill, the plight of the endless list of litigants battling it out in court rooms far removed from their homes goes unnoticed and unheard. To lessen some of their burden, litigants, especially those living far away from the Supreme Court’s seat in New Delhi, have voiced the need to have benches of the highest court in other parts of the country. However, in the absence of a forum, and some ignorance about constitutional rights, the issue remains untouched by all stakeholders—harrowed litigants, lawyers, courts and government.
Ganapathy says he himself has “conveyed to the SC the practical difficulties of poor employees and pensioners going to Delhi for their cases. The situation becomes even worse when their lawyers, who sometimes have put their heart and soul into the cases in the lower courts and HC, beg off citing the logistics of going all the way to the capital. For litigants, this means new lawyers which involves more costs, and at a time when they are at the end of their tether”.
Until recently, not much was understood about the extent of the problem. That was till Nick Robinson, a visiting fellow at the Centre for Policy and Research, published his working research on cases at the Supreme Court in December 2012. A clear anomaly showed up in his findings—the maximum percentage of cases at the apex court came from nearby areas/states, not at all proportionate to cases heard at the respective lower courts. “Appeals to the Supreme Court do not come to it evenly from high courts throughout the country. Those high courts situated in areas close to Delhi or that are wealthier are on average more likely to generate more appeals. For example, in 2011, 18.6 per cent of the court’s admission docket was appealed to it from Punjab and Haryana while 10.6 per cent was appealed from Delhi itself,” says Robinson’s report, ‘Quantitative Analysis of Indian Supreme Court’.
Thus, even if compared in absolute numbers, appeals from these two high courts represented a larger portion of the SC’s docket than high courts such as Bombay, Allahabad or Madras that hear far more cases. When averaging 2006, 2007, 2008, and 2011, the Delhi HC had the highest frequency of cases disposed by it appealed to the Supreme Court with an appeal rate of 9.3 per cent. The Uttaranchal and Punjab and Haryana high courts, all near Delhi and located in relatively wealthier states, also had appeal rates to the Supreme Court of over 5 per cent. All other high courts besides Himachal Pradesh (3.2 per cent) and Bombay (3.0 per cent) had an appeal rate of less than 3 per cent. Indeed, “Madras had an appeal rate of just 1.1 per cent and Orissa less than 1 per cent”.
Robinson’s report supports this idea. “Five-judge bench matters, which this article has already indicated have been in decline in recent decades, made up 1 per cent or less of its disposals in each year between 2005-2011.” Activist Teesta Setalvad of the Citizens for Justice and Peace has been involved in over two dozen cases—from trial court to the Supreme Court—related to the 2002 Godhra riots. “If benches of the Supreme Court could sit at Calcutta, Mumbai and Chennai/Bangalore or Hyderabad, this would surely increase access to people in so many ways,” she says.
Robinson’s findings also offer proof on this. “The Supreme Court currently wastes too much time hearing rather ordinary appeals because it doesn’t trust the lower courts. This isn’t what the SC should be doing. There are many pressing cases of constitutional and national importance that get backlogged because Supreme Court judges are spending their time on mundane matters that should never be heard by the court in the first place. It might be in the SC lawyers’ self-interest to keep the cases coming to Delhi, but it’s not in the nation’s,” says Robinson, who is currently a post-doctoral fellow at the Harvard Law School.
And it’s not as if the highest court in the land is not abreast of the crisis. Former Supreme Court Judge P.B. Sawant had made the suggestion long ago. The Law Commission of India had recommended it in 2009. “Earlier, the suggestion was rejected citing coordination issues but with technology that problem no longer exists. The inconvenience and the expenses caused to a litigant in approaching the SC is disproportionate to the cause which he has to fight. If the courts are meant for litigants and litigants not meant for court, then there can’t be any valid objection. This inequality is unpardonable. Of course, there is strong opposition from the SC bar, because work is concentrated there, so they get all the work. If there are multiple HC benches in states, then what is the reason to deny the SC?” asks Justice Sawant. He mentions that as many as 70 per cent of litigants decide against going to court for three reasons—poverty, illiteracy and distance. “We never think of this section of society, their circumstances, conditions,” he says.
Another issue is the inconsistency of the Supreme Court in hearing, proportionately, matters related to violation of fundamental rights, questions of constitutional interpretation etc, and that too in a time-bound manner. Rights of women, adivasis, Dalits and minorities need a special and concentrated focus. For, as Setalvad says, “After all, it is the Supreme Court and our judiciary that has time and again ensured that the writ of majoritarianism (that has stained the polity) is kept under check.”
Meanwhile, there are many who are trying to redress the balance. Former additional solicitor general S.B. Jaisinghani has written to the cji repeatedly on the need for more SC benches. “The common man is suffering like anything. I have written several times but I have not received any positive response. I want to make this issue a mission,” he says. Jaisinghani did get a letter from the SC registrar earlier this year, which succinctly said that the matter had been decided in 2010 itself. That was it.
Of course, several other issues also need to be addressed to improve the judicial system. Robinson says, “Strengthening the quality of the lower judiciary is the best way to tackle the backlog of cases in the high courts and Supreme Court. Adding more judges to the Supreme Court would make it even more difficult for the court to speak with a united voice. What is needed is quality lower courts that are accessible to litigants and which higher court judges can trust to mostly get it right. This is where resources should be going.”
Legal experts like Colin Gonsalves differ here, for they believe the quality of lower courts is good, especially given the workload. While there are differences of opinion on qualitative matters, everyone here is agreed on the need for more judges and more benches. Nevertheless, it is only the Chief Justice of India who can initiate this process as per Article 130 of the Constitution. “It is unfortunate that it is left to one person to take a call on a matter of such wide implications and significance. Ideally, a body representing all stakeholders should have been entrusted with the responsibility,” says Jaisinghani. Meanwhile, even as academic discussions go on the feasibility issue, Ganapathy is again in Delhi for a case. Unfortunately, the case has been postponed, yet again.
By Prachi Pinglay-Plumber in Mumbai
Part of the mystique and aura of the apex court would be lost if there was a bench in Agartala or Ranchi.
The failure of the judicial system is at the very core of the rotten Indian democracy.
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