Question of delays

K.G. Balakrishnan, the Chief Justice of India.-H. VIBHU

A newspaper article on the inordinate delay in hearing the bail pleas of the Godhra case accused angers the Chief Justice of India.

IN a recent article published in the Malayalam magazine Mathrubhoomi, Teesta Setalvad, a crusader for justice for the victims of the 2002 Gujarat riots, pointed out that 84 of the accused in the case involving the burning of the Sabarmati Express at Godhra on February 27, 2002 which triggered the pogrom against Muslims in Gujarat have been languishing in Gujarats jails. Their bail pleas have not been heard yet, even though the Central Review Committee had ruled in May 2005 that the Prevention of Terrorism Act (POTA) with which these accused have been charged with was inadmissible in their case.

She asked: The fact that many of them are ill, one is blind; the fact that their families have been reduced to penury and indignity while the main accused and masterminds of the post-Godhra carnages not only roam free but rule Gujarat by action and word, raises the niggling, troublesome question once again. Discriminatory justice. Can a discriminatory system of justice be viable in principle given what our Constitution espouses?

In October 2003, Hindu victims of the Godhra incident filed a case for transferring the Godhra trial out of Gujarat. In response, the Supreme Court stayed the Godhra trial in November 2003. Matters relating to bail for the accused, especially in view of the decision by the POTA Central Review Committee, were brought before the Supreme Court. The court permitted the accused to apply for bail, while hearing the matters relating to the findings of the Central POTA Review Committee. Seven separate applications have been filed by the Godhra-accused for bail. Setalvad lamented that despite six or seven hearings, the matter was not seen fit to be heard by the Supreme Court.

The article also carried a chronology of the Godhra bail matter before the Supreme Court, which was self-explanatory:

On February 22, 2007, the Supreme Court ruled that the Godhra accused could file bail applications before the Supreme Court. The matter being considered was the Report of the POTA Central Review Committee that had held that the provisions of POTA could not be applied to the Godhra case, after the trial court had framed POTA charges against the accused. On April 10, 2007, bail applications were filed in the Supreme Court.

On December 12, 2007, Justice G.S. Singhvi, one of the Judges before whom the case is listed, refused to hear the matter because he had heard the POTA Review Committee matter earlier. The Chief Justice then directed that the matter be listed before a three-Judge Bench in the third week of January.

On January 16, it was shown as appearing before Chief Justice of India (CJI) K.G. Balakrishnan, and Justices R.V. Raveendran and J.M. Panchal. Since Justice Panchal hails from Gujarat and his brother is a Public Prosecutor for the State of Gujarat, representatives of the bail-seekers raised objections. The court agreed and directed that the petition be posted before a Bench without Justice Panchal at the earliest.

In her article, Setalvad asked: Can no questions be asked about the systems in operation in the Supreme Court of India? Which matters get automatic priority and which do not? Which matters suffer because of the delays and interim orders of the Supreme Court? Is there no prioritisation of cases where issues of personal liberty, denial of basic fundamental rights, mass crimes and impunity to the rich and powerful are concerned? If we can ask no questions, we will receive no answers. The time has come to question the basic accountability procedures of the highest court in the land. Has the Supreme Court of India lost its soul and is it turning a blind eye to cases relating to fundamental rights violations? If so, where then do we turn?

On February 19, when the Godhra bail case came up for hearing, Setalvads article drew sharp criticism from the Chief Justice. The CJI asked all the lawyers appearing for the Godhra-case-accused whether they were involved in anyway with Setalvad, and if so, that the Bench would not like to hear those petitions which had anything to do with her. Sensing the mood of the Bench, counsel immediately distanced themselves from Setalvad. The CJI said the innuendo in the article was unwarranted as the Benches were fixed and the dates were given through computer and not manually. The article is shameful, to say the least, the Bench said.

There are some articles in the newspapers which are educative, and there are some which we ignore. But what is this article indicating? That the matters are not getting posted and that the court is being unfair? This article is not in good taste, the CJI said. However, the Bench resumed hearing the bail petitions after senior counsel for the accused, Harish Salve, said that the court should treat the article with the contempt it deserved.

The CJIs anger over the article and its author, expressed in the open court, without giving her an opportunity to explain her position, dismayed civil society. A group of eminent persons from all walks of life pointed out in a statement that the CJI had unfairly singled Setalvad out for the article, even though many others shared her concern about the consequences of judicial delays.

The furore over Setalvads article would have served its purpose, if it helps to focus attention on the huge pendency of cases in the Supreme Court. The Supreme Court of India enjoys the widest jurisdiction (wider than what the highest judiciary in any other country enjoys), including the original jurisidiction to grant relief in case of violation of fundamental rights. And the right to move the court itself is guaranteed as a fundamental right. The mounting and unmanageable number of pending cases has characterised this transformation of the court over the years. The Annual Report of the Supreme Court for 2006-07 says that the pendency of cases, which was 58,794 as on January 1, 1994, came down to 44,819 cases as on September 30, 2007. But this statistics conceals more than what it reveals.

A table carried in the Annual Report shows that if one takes 1994 as the benchmark when computerisation was introduced in the court along with other innovative methods such as grouping of cases to reduce arrears the real breakthrough was achieved in 1996 and 1997. In 1996, the pendency was 23,246 cases while in 1997, it was 19,032. However, the pendency began to rise sharply from 2004; it rose to 30,151 cases from 26,750 in the previous year. In 2006, the backlog increased to 44,819 cases from 34,481 cases in 2005. Since then, the backlog has only kept rising. The total number of cases instituted in 2006 also went up by more than 11,000 over the previous year. The Annual Report does not shed any light on the reasons for this phenomenal rise in the number of instituted and pending cases in the course of just one year.

Following the Supreme Courts recommendation, the government increased the Judges strength in the Supreme Court from 26 to 31. But it may not be an adequate response to the issue of mounting arrears. The Law Commission, in its 125th Report in 1988, said: The Judge strength of the Supreme Court has been revised on four different occasions and at no point of time the revised strength has made any impact on the arrears.

The Law Commission had then suggested timely filling up of vacancies and mandatory continuance of retiring Judges in office until their successors are appointed. The Supreme Court has two vacancies under the current strength of 26, both having arisen on July 8, 2007 (when Justice B.P. Singh retired), and August 27, 2007 (when Justice P.K. Balasubramanyan retired). Apparently, the appointment process devised by the Supreme Court itself has not been very effective in filling vacancies in time.

The Law Commission also recommended effective use of the retired Judges of the Supreme Court who settled down in the capital after retirement. Retired Judges, minimum 12 in number, may be requested to sit in four Benches, each of three, to take up old civil and criminal appeals, it suggested.

The Commission also recommended that the Supreme Court be split into two: Constitutional Court and a Federal Court of Appeal. The Federal Court of Appeal could sit in Benches in North, South, East, West and Central India to reduce litigants costs.

The hearing of the bail pleas of the Godhra-accused, for instance, got inordinately delayed partly because for nearly three months, a five-Judge Constitution Bench of the Supreme Court was hearing on non-miscellaneous days (Tuesdays, Wednesdays and Thursdays, when arguments are allowed) the challenge to the Central Act reserving seats for the Other Backward Classes (OBCs) in Central educational institutions. Had there been a Constitutional Court, enjoying the Supreme Courts status to deal with such cases, and a separate Federal Court of Appeal, with a Bench in Western India, the Godhra accused would not have nursed a feeling of discrimination in getting their bail pleas heard by the Supreme Court in time.