Dockets the Supreme Court forgot

Judges are compelled to decide cases applying laws whose validity is under challenge

We have all heard about obsolete laws that the government occasionally weeds out. Two gems: According to the Aircraft Act 1934, you need a licence to fly kites. The India Treasure Trove Act, 1878 defines treasure as “anything of any value hidden in the soil” and worth Rs 10. Despite the government’s efforts, many such vintage laws still survive. However, as they remain only on paper, like several new laws, they are comparatively harmless in contrast to the constitutional questions waiting for final answers from the Supreme Court. These cases of yore contain serious issues. Keeping them in suspended animation tends to distort law, lead to wrong orders and singed citizens. 

One glaring revelation was made in a judgment of the Supreme Court delivered a few weeks ago. The validity of Article 31-C of the Constitution was vital to decide a large batch of appeals against a judgment of the Punjab and Haryana high court in land acquisition matters. However, the court has not decided whether the provision survives after it was struck down in 1981 (‘Minerva Mills case’). The question was hanging fire since 1996. One bench referred the issue to a five-judge Constitution bench, which in turn sent it to a seven-judge bench and that bench again passed on the burden to a nine-judge bench. The issue involves the interplay of fundamental right to property and the directive principle of state policy (“material resources of the state”). It comes up in various courts, repeatedly.

In the present case, Union of India vs Tarsem Singh, when the court was confronted with the application of Article 31-C, it did not have any rule to go by as the validity of the provision had not been decided for decades. The judges wrote that “we will assume for the purpose of this case that Article 31-C, as originally enacted, continues to exist and that the ‘material resources of the community’ would include private property as well”. In how many more cases the judges extricated themselves from such predicaments through “assumptions” is anyone’s guess. But the plight of the litigants who lose their cases because of court’s indecision is much worse.

This is only about one provision. The number of such cases consigned to prolonged limbo would induce shock and awe. There are some 250 cases waiting to be decided by constitution benches of five judges. Some of them were ready for final hearing since 1992. There are 11 cases referred to benches of seven judges. More than 130 cases have to be decided by benches consisting of nine judges. Even if a constitution bench sits permanently to dispose of these cases, it would take years to clear the dockets. 

The subjects of these cases cover almost every aspect of national life, especially finance and economics. The government is now readying a labour code, but the definition of ‘industry’ in the Industrial Disputes Act is still to be decided. How many workers lost or won their cases and what the judges ‘assumed’ to be the law is beyond imagination. At present 520 labour cases are before the court. Similarly, there are more than 3,000 direct tax matters and 520 indirect tax appeals. Many of them will have to depend upon the interpretation of respective laws which are before constitution benches that never assemble. Chief justices in the past had given priority to politically sensitive matters and ignored economic cases, contributing to the general belief that judiciary is one of the obstacles to do business in this country. The inertia of the Supreme Court affects decisions of all the courts below.

The Supreme Court is happily at a comparatively calmer period in its history, at least on the surface. The past months saw turmoil of varied hues which have apparently subsided. There was also a shortage of judges. The new Chief Justice, who has a tenure of 17 months, can take up and dust the old constitution bench cases. If he sets the ball rolling, it will set a procedural precedent for many years to come.