Supreme Court at Cross Roads

By Atul Sharma

It is indisputable that the justice dispensation system in India is going through a crisis of credibility. It is the higher judiciary comprising of Supreme Court and High Courts which have to bear the brunt of criticism. To quote a sitting judge of the Supreme Court at a public function “Indian judiciary is like a clogged artery of the heart that needs a bypass.” What prompted a fine Judge who has no axe to grind, to make such a statement? The Indian citizen needs an answer.

Until 80’s governance of courts was premised on conventions which were borrowed from the English Court system. These are no longer available. The vacuum has to be filled by a structured system of Governance.

Notwithstanding the criticism hurled at them by all and sundry, the justice delivery system has rendered yeoman service to Indian citizens, particularly in the area of fundamental rights. Barring a few, it comprises of committed, competent and conscientious judges. Then what has befallen on it that it has to justify a large number of its actions, howsoever well-meaning and well-intended they might be?

The entire debate centers around personalities and individuals and not the system. While quite a few steps have been taken to improve the justice delivery system but most of these are outward-facing like computerization of records, electronic methods of dissemination of information to litigants. What is needed is a set of internal governance reforms. Governance is akin to management. Thus any parallel from successfully managed organizations including business houses can be a good guide. The neo successful business organizations have taught us great lessons in management. A number of methods of institutionalization can be learnt from these experiences.

Broadly, there are five kinds of disputes which come before the Supreme Court or High Courts under various provisions of the Constitution or other statutes. These are –

(i) Public law matters which are essentially for the enforcement or protection of constitutional rights and judicial review of administrative action(s);

(ii) Disputes between two private parties, substantially originating in Courts subordinate to Supreme Court;

(iii) The new breed of cases directly appealable to the Supreme Court or High Courts under economic and non-economic regulatory statutes like Telecom, Electricity, Airport Economic Regulatory laws, Competition laws, Prevention of Money Laundering Act, Intellectual Property etc.

(iv) Criminal cases originating from subordinate criminal courts.

(v) Cases under fiscal laws like Income Tax, GST Laws etc.

So far as the last four categories are concerned, there is no scope for limiting the right to approach the Supreme Court or High Courts, as these are specific remedies vesting in a citizen under the relevant laws or are in the nature of private disputes. It is only in the first category that the indulgence of the Supreme Court and High Court can be limited in certain circumstances.

Such has been the enlarged scope of exercise of jurisdiction by the Supreme Court and the High Courts that matters like sale of acid with a potential of its misuse, fixing of films on car windows, management of private public bodies administering sports and similar large number of enforcement of law actions have been made the subject matter of cases before the higher judiciary. While it can be clearly understood that matters like environment, for example, Mussoorie Mining, grave cases of human right violations like Bhagalpur Blinding case did warrant interference by higher judiciary, large number of other matters could have been left to the executive or at best the lower judiciary. It is time that the Supreme Court, lays down guidelines for recourse to the extraordinary Constitutional jurisdictions under Article 32 and 226 of the Constitution

The justice dispensation system needs to be viewed through the eyes of young India. They desire a modern, efficient and transparent justice system as consumers of justice delivery service. Each citizen of India as a stake holder of the justice delivery system is looking at the management of the Supreme Court and the High Courts like any other shareholder of a company is looking to its management. If this fact is recognized and the Supreme Court lays down the ground rules for its own governance and of its subordinate courts, a large part of the perception issue can be addressed. Does this curtail the freedom of judges? On the contrary, if a transparent governance system is adopted such freedom will be seen in the light of it’s true intent.

Every bench of the Supreme Court is Supreme Court for every citizen of India. It makes no difference to him whether it is passed by a Bench of two, three, five, seven or nine Judges. These are nuances of law. Lack of consistency between two different Benches of the Supreme Court while answering the same question has been one of the major factors that affects its credibility. One can cite numerous examples.

A key part of an institutionalized governance system is unification of decision making process at different levels. Today’s Supreme Court and High Courts are a conglomeration of learned judges. They need to be unified under a common management system. Devolution of powers on judges who are younger or have longer tenures and a multi-layered decision making process is the need of the day. Nothing prevents the Supreme Court from taking the advice of the best in the management business.

(The author is managing partner, Link Legal. Views expressed are his own and not that of Financial Express.)