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The new chief justice’s obsession with pendency, his impatience with case mentioning and his strictness with deviant behaviour are sure signs that he will spearhead a change in the top court

~By Venkatasubramanian

Chief justices come and go. A tenure of almost a year in office makes one ambitious to leave a mark before retiring on various aspects of the Supreme Court’s functioning and its history. Chief Justice of India (CJI) Ranjan Gogoi, who took over from Justice Dipak Misra on Octo­ber 3, is no exception. Right from day one, he has been making observations both in and out of court which indicate that he has a mind of his own on pendency of cases and how to tackle it.

His ban on mentioning of cases by lawyers in his court at the start of the day unless they require urgent listing is one such instance. This has not gone down well with lawyers and litigants. According to the CJI, until the “parameters” are worked out, only the most deserving cases can be mentioned and relief granted.

Mentioning a case is a convention which permits lawyers to request the CJI, as master of the roster, to direct the Court registry to let a pending case jump the queue because of one reason or the other. Although most CJIs had been indulgent about doing so, spending about 20 minutes to one hour before hearing the listed cases, some CJIs have begun to question the practice.

Former CJI Misra, for instance, barred senior advocates from mentioning cases and restricted this privilege to junior members of the Bar, and that too, advocates-on-record. His reasons were that junior lawyers needed the opportunity to learn professionally and mentioning cases offered that platform to them. This effectively brought down the time spent on mentioning by the CJI.

CJI Gogoi, on the other hand, seems to question why some cases deserve to jump the queue at all, unless there is some valid reason such as imminent demolition or loss of freedom caused by denial of bail or premature release of a prisoner without sufficient safeguards. Every pending case will have a sufficient reason to be heard and decided expeditiously as justice delayed is tantamount to justice denied and it ultimately shakes the confidence of litigants in the justice delivery system. But the huge pendency of cases imposes its own dynamics on the policy to be followed by successive CJIs.

Recently, CJI Gogoi, in a video conference with all the chief justices of high courts, emphasised the need to expedite criminal and civil cases to bring down the number of pending trials from three crore in courts across the country. He also advised all chief justices to ensure punctuality, not to take unnecessary leave, and be available in courts during working hours. As more than 400 of the 1,079 judges’ posts in high courts are lying vacant, he asked the chief justices—the heads of the high court collegiums responsible for recommending appointment of these judges—to comply with the mandatory deadlines to fill the vacancies in time. In the Sup­reme Court itself, there are as many as seven vacancies of judges; two will arise before the year ends as Justices Kurian Joseph and Madan B Lokur are set to retire in November and December, respectively.

Concerned with the rising pendency, the CJI has decided to list criminal matters every Wednesday and Thursday before at least five benches of the Supreme Court for early disposal. Criminal matters, in contrast to pending civil disputes, need to be given priority because they mostly involve freedom of undertrials or convicts whose appeals have been languishing for years without being heard. When the courts take inordinate time to dispose of their petitions and appeals, the delay constitutes additional punishment, not contemplated by law.

CJI Gogoi’s inability to quickly evolve the parameters of mentioning cases by lawyers led to indiscriminate requests from them, forcing him to express his displeasure in open court. In the ab­sence of parameters, lawyers differed on which cases involved extreme urgency and thereby merited early listing. When a lawyer persisted in pleading that his case be listed prior to the Dussehra vacation, the CJI asked whether he should postpone the vacation itself. Again, when a lawyer sought early listing of a matter concerning the BCCI, the CJI reportedly shot back: “Regardless of our views on cricket, what will happen if it is listed after Dussehra? Heavens will fall? Please go away.”

When more cases were mentioned for quashing FIRs, etc, the CJI was visibly dissatisfied with what he described as non-cooperation by the Bar. But lawyers who were desperate to mention cases may jus­tify their behaviour because till the parameters are worked out, the old order ought to have continued. The CJI’s abrupt break from the practice of mentioning, without an alternative in place, created a void, which left lawyers and litigants helpless.

But it is not as if the CJI disallowed mentioning completely even if the cases merited early listing. On October 9, he agreed to list a case involving acid attack victims (Chaanv Foundation v the State of Uttar Pradesh) the next day. The bench of Justices R Banumathi and Indira Banerjee heard the matter and requested the Lucknow bench of the Allahabad High Court to take it up at an early date and dispose it of “preferably within nine months”. It also asked the parties to maintain status quo during the period. The CJI did agree to list similar cases meriting urgency early before appropriate benches.

But the cases in which he refused immediate relief were indicative of what one could expect during his tenure. Thus, he refused to hear the plea for restraining the centre from repatriating seven Rohingya refugees to Myanmar. They were at a detention camp for illegal entry into India and on their release, the Myanmar government agreed to take them back as its citizens.

Advocate Prashant Bhushan, the counsel for Rohingya refugees seeking asylum in India, sought the Court’s intervention, in the light of international law on grant of asylum, and the concern of United Nations agencies that these refugees, if repatriated to Myanmar, were likely to face further persecution and torture. But the CJI-led bench, also comprising Justices Sanjay Kishan Kaul and KM Joseph, declined the prayer on the gro­und that Myanmar has accepted them as its citizens, and therefore, the question of treating them as refugees did not arise.

The CJI-led bench also refused to come to the rescue of Abhijit Iyer Mitra, the journalist who tweeted disparagingly about the Konark monument, inviting the wrath of the Odisha Legislative Assembly, which sought his arrest for insulting religious feelings.

When Mitra’s counsel pleaded that he apprehended danger, and therefore sought the Court’s protection, the CJI retorted: “If you apprehend danger, prison will be the safest place.” Considering the gravity of the offence allegedly committed by Mitra, the bench refused to consider his plea for extending his anticipatory bail.

In Shweta Bhatt v State of Gujarat, the bench refused to interfere when the wife of the former police officer, Sanjiv Bhatt, alleged that he was not allowed to execute vakalatnama to move the Supreme Court. Bhatt is in judicial custody in connection with a 22-year-old case for the alleged offence of planting drugs on a lawyer in Banaskantha at the time when he was posted as superintendent of police. Finding the facts in the case “highly contentious”, the bench also found the plea infructuous as Bhatt was no longer in police custody when the authorities allegedly refused to let him meet his advocate.

Meanwhile, the CJI-led bench made rapid progress in disposing of pending criminal cases. It acquitted a rape acc­used on October 4 in Ashok v The State of Maharashtra when it concluded that the lower courts did not reach a clear finding that the victim was a minor at the time of the incident, thus giving credence to the defence argument that it was consensual.

Where both the high court and the trial court found a rape accused guilty, the bench was reluctant to grant relief to the appellant-accused simply because there were discrepancies in the testimonies of the prosecution witnesses or because the medical evidence was ambiguous. In its view, contemporaneous statements of prosecution witnesses carried more weight.

In another case, the rape of a minor girl, which involved close relations between two families, the bench held that a solitary incident of intercourse between a couple, if not repeated, would prove it non-consensual.

While deciding pleas for grant of bail, the CJI-led bench gave liberty to the accused to renew their pleas if their appeals against their conviction and sentence were not heard within six months.

In CBI v Paresh Aggarwal etc., the bench held that the High Court was not justified in interfering with the trial court’s order of framing charges against the accused. “Trial should recommence from the stage where it was interdicted by the High Court,” the bench held in its order.

Not willing to wait endlessly when advocates of either side failed to appear in a civil appeal, the bench disposed it of by passing appropriate orders based on the facts of the case, setting aside two of the few directions passed by the high court in the matter.

CJI Gogoi’s impatience with pendency of cases is likely to sharpen in the days to come. It is another matter whether it will have a lasting impact on the problem.

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