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M J Antony: Out of sight and mind

Important issues referred to larger Benches remain in the record room

M J Antony 

The Supreme Court judges, who were on vacation, will return next week to a pile of some 55,000 cases that have accumulated over the decades. There are no criteria known to the public that give priority to certain cases over the others. There is no chronological order, as corporate entities can be seen occupying the fast lane and even jumping the queue.

The more difficult the legal question involved, the more likely it is to be lost in the paper jungle in the record room. Many issues are referred to larger Benches, or the Constitution Benches, because of their importance — but these hot issues that once made headlines are forgotten by the new generation of judges.

It has been 16 years since certain complex questions involving citizens’ right to property after the 25th Amendment to the Constitution was referred to a larger Bench. Unable to harmonise the amendments and the court’s own judgments, a Supreme Court Bench in 1996 referred the issues to a larger Constitution Bench in the case Property Owners’ Association vs State of Maharashtra. But the required Bench has not been constituted.

The over the establishment of has died down, but at the peak of the protests, several writ petitions were moved against the scheme. These raised several socio-economic and legal issues that were too complex to be answered. Perhaps that is why they were not answered at all by the court.

Though motor vehicles are jamming the roads and accident claims are mounting in tribunals, the Supreme Court has not listed the grave legal questions raised before it. Several Benches had referred them to larger Benches since the law was not clear and earlier judgments showed contradictions in the judicial stand.

One of the serious questions is the applicability of the second schedule to the The schedule provides the method to compute compensation in road accidents. The court had, in the past, described the table as “unworkable” and an example of bad arithmetic. Moreover, it does not take into account the devaluation of the rupee over the decades. The judgment in the case, Reshma Kumari vs Madan Mohan, had found even more discrepancies and observed that “it defies logic as to why in a similar situation, the insured person or his heirs would get a lesser amount than the one specified in the schedule”.

These are only some of the doubts expressed with regard to the Act. These questions were awaiting a hearing for years. Tribunals and high courts have to decide claims without the help of a final answer from the Supreme Court. This could start another round of litigation.

Some five years ago, one Bench of the court drafted six questions regarding the competing powers of the central and state governments in regulating the liquor trade. These were referred to a nine-judge constitution Bench in the case State of UP vs Lalta Prasad Jain. The questions make a heady cocktail of the entries in the Union and state lists of powers in the Constitution, provisions of the Industries (Development and Regulation) Act and past judgments on denatured spirits and foreign liquor. The forensic brew seems to have caused a judicial loss of memory.

Among other economic issues, some waiting for the final word from the last court of appeal are: the definition of “industry” in the and of “shop” in the A new task for the larger Bench is the harmonising of its judgments in cheque bouncing cases, referred to it in Yogendra Pratap vs Savitri Pande. Some crucial questions on the Arbitration and Conciliation Act have been referred to a Constitution Bench.

Then there are political issues pending for years, like the water-sharing dispute between Punjab and Haryana, reservation for Muslims in employment, the Ayodhya issue, appointment of judges to the high court and the Supreme Court and the court’s power to lay down guidelines that amount to judicial legislation. The court must lay down some timeline for disposal of such old cases with loaded issues.

In contrast, two months of this year were spent by five judges in their attempt to set guidelines for media reporting of court proceedings. The issue is neither urgent nor judicially manageable. When the guidelines come from the Chief Justice’s court after the reopening, the central question will be whether they will be merely advisory, or whether they have any mandatory force — and last, but not least, whether the media will bow down to them.

First Published: Wed, June 27 2012. 00:02 IST