Bench strength: A decisive move by Justice Lalit

His suggestion on Constitution Bench cases is a useful one

Seventy-four days is not a long time to carry through deep-rooted reform but Chief Justice of India U U Lalit has made a decisive move in that direction by announcing that the Supreme Court will hear 25 five-judge Constitution Bench (CB) cases from August 29, his first day in office, and assess whether they are ready to be argued in court. Not only does this mark a big jump from his predecessor’s record, it also reverses a declining trend over the decades. From an average of 134 CB judgments per year in the 1960s, the number dropped to two in 2021. This early move by Justice Lalit puts heft behind his broader proposal to have at least one CB functioning throughout the year within the existing court structure. This is a sensible suggestion. A quantitative analysis of the court’s workload suggests that 85 per cent of its time is taken up in hearing appeals from all over the country, leaving little time for larger Benches — CBs can be of five (the most common), seven or nine judges.

Most of the issues pending before these CBs are consequential. The 25 cases to be heard — which constitute almost half the 53 pending CB cases — include the ones on the Economically Weaker Section quota, the creation of regional appellate wings of the court, WhatsApp privacy, and the legality of demonetisation of 2016. But many more critical cases for larger Benches are also pending —  such as the validity of Article 370, which concerns Jammu & Kashmir’s special status and was read down in 2019, challenges to the Citizenship Amendment Act, and the constitutionality of the Muslim Marriage laws. Justice Lalit’s move brings back into focus a debate that has been doing the rounds since the 1970s on how to handle the court’s heavy backlog — over 70,000 cases are before it now. This includes the suggestion of a zonal split of the court into four regional Benches of 15 judges each to act as an appellate court between the Supreme Court and the high courts, leaving judges with more time to address constitutional issues. In 1974, however, the 58th Law Commission had rejected the idea of zonal courts, saying it contradicted the intent of the framers of the Constitution.

It is possible that holding virtual hearings, which began during the Covid-19 pandemic and continues now, may go a long way towards reducing the backlog. Equally, it is argued that CB hearings will reduce the overall backlog throughout the Indian judiciary because they will clarify key constitutional questions and reduce the chances of appeal. The counter-argument to Justice Lalit’s proposal, however, is that assigning five judges to a permanent CB will reduce the number of judges available to hear appeals and writ petitions. This can easily be addressed by expanding the sanctioned strength from the current 34. At the same time, if the court became more discriminating about entertaining appeals, it would free up the dockets for more important issues. If Justice Lalit can move the needle on this debate in two and a half months, he will have done the court a yeoman’s service.