While the number of Constitutional questions raised before the Supreme Court have gone up, the number of Constitution bench sittings has fallen and become a rare event. If a weighty issue is referred to a larger bench, it is most likely that it will lie buried in the record room in the court basement for years.
Therefore the nation has reason to be apprehensive about the fate of the two issues of great importance, which were heard for nearly two months and referred to Constitution benches. One is about the legality of Aadhaar identity cards and the other is the constitutionality of the National Judicial Appointments Commission Act. The Aadhaar card question hit a dead end because a bench of nine judges has to decide first whether the Constitution provides for right to privacy. This became necessary because the main challenge to Aadhaar is that it violated privacy, hitherto considered a fundamental right. But the government has shown the court that neither the Constitution nor any authoritative judgement has recognised this right, which was taken for granted for decades.
The second question, which has apparently fallen off the judicial radar, is the new procedure for the appointment of judges of the high courts and the Supreme Court, replacing the collegium system devised by the judges themselves. After weeks of hearings, this issue also has been referred to a Constitution bench, which might have to consist of 11 judges. Appointment of judges has stalled for months and vacancies in the high courts are going up every week. The Allahabad High Court needs 82 judges, Bombay 30 and Delhi 20.
This lamentable situation, in which difficult Constitutional questions are swept under the carpet, was developing for years and few have acknowledged it, let alone taken remedial measures. It is the chief justice who chooses the case or when to list it for hearing. He also picks judges for the Constitution benches. Will he follow the chronological order or give priority to more pressing issues such as judges' appointments? What would be the criterion? Will his choice of his brethren on the bench make the result predictable? Since most chief justices have short tenures (the present one has just three months to go), they leave the setting up of Constitution benches to their successors.
When the founding fathers drafted the Constitution, they thought that only important questions of law would come to the Supreme Court and seven judges sitting in three courtrooms would be enough to deal with them. A Constitution bench shall consist of at least five judges. Five-judge benches were the norm. According to one count, in the 1960s, more than a 100 constitution benches sat and decided seminal issues involving right to life and liberty, status of the minorities, reservations and industrial disputes. By the 2000s, the sittings had fallen below 10 a year, though the number of judges has gone up. Now there are 31 judges, but they sit in twos in 14 courtrooms. Each bench is given about 70 cases a day. So there is hardly any time to consider Constitutional issues. Most of the cases are appeals coming via Article 136 ('special leave petitions'), raising commercial or property disputes, taxation, service conditions and individual grievances. The Supreme Court has become a glorified appellate court.
As a result, some questions referred to Constitution benches are two decades old, like the constitutionality of the 25th Amendment to the statute. There are in fact hundreds of such cases waiting for answers from larger benches. The physical condition of those files must be appalling considering that the judges last week summoned the registrar to admonish him for the dishevelled state of recent ones.
Even if a permanent Constitution bench is set up now, it is humanly impossible to clear the backlog in a few decades. Before that, one supposes scientists would have developed artificial intelligence (AI), or computers that think faster and perform better than humans, that would take over many institutions. That is not good news. The present worry of cyber scientists is that AI might be smarter but it lacks a sense of equity or justice, which is the heart of judicial institutions.