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Normalcy, as we knew it prior to the COVID-19 pandemic, is not coming back soon. The Judiciary, forming the triumvirate of branches of government with the Executive and the Legislature is struggling as well.
As it is, pending litigation has been a pandemic too. Nani Palkhivala once said,
“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.”
This pandemic is not helping the cause. What of the judgments that judges of constitutional courts had reserved for orders? Many were reserved, not a day or a week, but even months before we saw the first signs of Coronavirus.
Judgments reserved and not delivered have piled up, to the eternal prejudice of the litigant public. It is quite understandable that at this point of time, with the social distancing norms in play, judges may be in no position to hear the cases and decide them. But what of those cases heard already and orders reserved?
Tapping into the portals of the Madras High Court, one is rudely reminded of a circular of 2014 vintage, issued at the instance of then Chief Justice Sanjay Kishan Kaul (now a puisne judge of the Supreme Court). In that circular, court officers before the Principal Bench at Chennai and the Madurai Bench were directed to mention the dates on which orders were reserved and the dates of their pronouncement, immediately after the cause titles of the cases.
The circular makes interesting reading in these times, as we still await the verdicts in those cases which were reserved, long before the virus came calling from Wuhan. Interestingly, the circular was in the ‘wake’ of a judgment of the Supreme Court dated August 6, 2001. The circular was not contemporaneous, affording enough breathing space to the law lords.
Expressing anguish at some High Court judges being guilty of “inordinate delay in pronouncing judgments, unmindful of their obligation and oath of office they had taken solemnly”, Justices KT Thomas and RP Sethi had said in Anil Rai v. State of Bihar that Chief Justices of all High Courts could direct their Registries to print the two crucial dates on the judgments.
The other remedial measures suggested by the Court included a directive by the Chief Justices to make it mandatory for court officers to furnish every month a list of cases in which judgments were not pronounced within a month from the date on which they were reserved, and take it to the notice of the judges concerned.
It was further held,
“The Chief Justice may also see the desirability of circulating among the judges of the High Court for their information the state of such cases in which judgments have not been pronounced, within six weeks from the date of conclusion of arguments. Such communication should be conveyed as confidential and in a sealed cover...
....If the judgment, for any reason, is not pronounced within a period of six months any of the parties of the said lis shall be entitled to move an application before the Chief Justice of the High Court with a prayer to withdraw the said case and to make it over to any other Bench for fresh arguments. It is open to the Chief Justice to grant the said prayer or to pass any other order as he deems fit in the circumstances.”
We are now in 2020 and in the midst of a pandemic. The Justices are home bound. The most emergent of cases are getting listed and only a skeletal group is hearing them. Yes, there are instances of judges who had reserved orders, "for long, however long, is left to the conscience of the gentlemen", as Justice VR Krishna Iyer was quoted to say, delivering judgments even now, on the digital platform.
Enquiries reveal that it is not a logistics issue. The present Chief Justice of Madras High Court, AP Sahi, appears to have issued a circular making available ‘personal staff’ of the judges at all times, at their beck and call. And papers which may be logically within the heritage building are available for transit, if called for.
As for the Madurai Bench, the Justices are locked down inside the High Court compound. The video conferencing is happening from within the premises with "ready access to papers and personal assistance", as a judicial friend put it. The pendency is a problem. It is not going away like the intransigent deadly virus.
Cut to July 10, 2019. Then Chief Justice Vijaya Tahilramani had sent a similar reminder to the learned judges. She had pointed out that that the E-Courts website and NJDG (National Judicial Data Grid) are most accessed websites and as the proceedings of the cases are being uploaded in the website, the parties concerned are watching the progress of the cases. She indicated that parties were sending petitions/letters over the delay in pronouncement of orders, after reserving the cases.
Hence, she felt that it was expedient to proceed with the cases without any delay. When causes are reserved for judgments/orders, she felt that the same has to be pronounced at the earliest by keeping in mind the directions of the Supreme Court of India in Anil Rai.
There is no doubt that the job of a constitutional court judge is a thankless one. There has been an exponential explosion in the litigation numbers. The judges are inevitably overworked. The per capita number of judges has not kept pace. We also have the spectacle of the learned judges being compelled to man several committees, including canteen, car parking, etc. which dilutes the time available to them. There has been a clarion call, for very long, that it was time for our courts to have specialist Court Managers, including for case management. This time is long overdue.
As the saying goes, “Never waste a good crisis”. If all reserved judgments could come tumbling out, as if in an assembly line, justice may be done to We the People.
It may, however, not be out of place to allude to the ongoing debate among advisers to policy makers that in the face of inordinate delays and the institution’s inability to clear the backlog of reserved judgments, as to why the Centre or state should not come out with Ordinances to bring closure to at least vexed litigation, where national interest may be overwhelming.
Such a course may be the need of the hour in this virally vulnerable moment. But if that happens, it may not surely augur well for the Judiciary as an institution.
The author is a practicing advocate at the Madras High Court.