Holiday Blues

By Dr Swati Jindal Garg

Today, our justice delivery system is facing multiple challenges. The biggest one that needs immediate attention is the humongous number of pending cases. The need of the hour is to tackle this problem systematically and aggressively.

Taking a step in the right direction, the Supreme Court recently notified the benches that would hear cases during the summer vacation commencing from May 22 to July 2. Chief Justice DY Chandrachud, in the exercise of his powers under the Supreme Court Rules, 2013, had directed that the top court will close for vacation later this month and reopen again in the first week of July. The annual summer break this year is one week shorter than the seven-week-long break of 2022. During the summer vacation, the top court’s registry will remain open every day—except Saturdays and Sundays—from 10 am to 5 pm for all its officers and staff.

In 2018, the Supreme Court went on a 44-day summer break from May 19 to July 2. In 2017, the break lasted from May 9 to July 3 and in 2014, from May 12 to June 29.

There are usually six vacation benches in the Supreme Court through the summer, with each bench sitting for six days. Each bench has no more than two judges. However, this year the court has a never before number of 14 vacation benches sitting during the summer vacations, wherein one bench will also sit during the weekend.

A vacation bench of the Supreme Court is a special bench constituted by the chief justice of India. The Court takes two long vacations each year—summer and winter breaks—but is technically not fully closed during these periods. Any litigant can still approach the Court for the resolution of an issue and if the Court feels that it is an urgent one, it will be put it before the vacation bench which will then decide it. Even though there is no law that actually defines an “urgent matter”, any act that infringes on the fundamental rights of a citizen or pertains to rent, land acquisition, compensation, academics or elections may be categorised as an urgent matter.

In order to get a matter listed before a vacation bench, according to a circular of the Supreme Court, the counsel or party-in-person must file an affidavit of urgency which should include the nature of the matter, the reason for not filing it before the vacation, the latest date up to which the matter can be heard in view of the urgency and the nature of interim order sought.

The power to appoint a vacation bench is derived from Rule 6 of the Supreme Court rules. It states: “The Chief Justice may appoint one or more Judges to hear during summer vacation or winter holidays all matters of an urgent nature which under these rules may be heard by a Judge sitting singly, and, whenever necessary, he may likewise appoint a Division Court for the hearing of urgent cases during the vacation which require to be heard by a Bench of Judges.”

High Courts and trial courts too have vacation benches to hear urgent matters under their jurisdiction. The origin of vacation benches and holidays for courts dates back to colonial rule in India when British judges unable to bear the heat during the Indian summer would sail back to England, only to return during the monsoon months. Now, the summer recess is seen as a welcome break for judges and necessary for their work.

It is being said that the appointment of these 14 vacation benches is one of the many changes made by the current CJI to put a dent in the long list of pending cases. These vacation benches are not decided according to seniority, but on who is available to hear the cases. Usually, junior members are asked to sit on the vacation bench as they are less burdened than their seniors.

As of September 15, 2021, there were around 4.5 crore pending cases across courts in India, especially in district and subordinate courts. In 2019, there were 3.3 crore pending cases. This shows that in the last two years, India has added 23 cases every minute to its pendency.

The total number of pending cases in the Supreme Court is 71,411 as of August 2, 2022, out of which 56,365 are civil matters and 15,076 criminal ones. This issue raises serious problems. The question is how are we going to cope with the ever-increasing backlog in the judicial system and deliver timely justice to citizens?

Apart from lowering pendency, vacation benches also play an important role in political cases. In 2018, after the Karnataka assembly elections results were declared, the BJP emerged as the single-largest party, but failed to reach the majority mark. Karnataka governor Vajubhai Vala invited state BJP chief and former chief minister BS Yediyurappa to form the government and gave him 15 days for a floor test to prove his majority. At that time, the Congress, which had forged a post-poll alliance with the Janata Dal (Secular), went to the Supreme Court in protest. CJI Dipak Misra then constituted a vacation bench of Justices AK Sikri, SA Bobde and Ashok Bhushan which scrapped the 15-day window given to the BJP and ordered a floor test the very next day. The BJP, however, failed to prove its majority and hence the Congress-JD(S) formed the government.

In 1975 too, after Justice Jagmohanlal Sinha of the Allahabad High Court found Prime Minister Indira Gandhi guilty of electoral malpractice, she was disqualified from Parliament and barred from holding any elected post for six years. She then appealed to the Supreme Court, which was on vacation at the time. Subsequently, a vacation bench comprising Justice VR Krishna Iyer conditionally stayed the Allahabad High Court judgment. He granted Gandhi the right to attend Parliament, but ruled that she could not participate in the Lok Sabha proceedings or vote as an MP. It was this order which subsequently lead to the imposition of Emergency.

A case heard by a vacation bench in 2017, led by CJI JS Khehar held a marathon six-day hearing on triple talaq. The bench also comprised Justices Kurian Joseph, RF Nariman, UU Lalit and S Abdul Nazeer. It heard seven pleas in the case and then went on to declare the practice of triple talaq unconstitutional by a 3:2 majority.

And those who feel that judges take too many holidays, must keep in mind the tremendous workload that every judge faces during his tenure. Senior advocate Sanjay Hegde reportedly said that vacations were very important—more than rest and recuperation, the time was required for reflection and to catch up on work that could not be done during working days. “Vacations are an integral part of court procedure,” he said.

Rebecca John, another senior lawyer, reportedly said that lawyers spent most working days in court, which left them little time to prepare for cases. “Similarly, for judges who hear close to 80-90 matters a day, this time is required to complete the backlog of judgments,” she added.

Despite all this, vacations observed by the Supreme Court have come under fire. The 230th Law Commission of India Report on Judicial Reforms headed by Justice AR Lakshmanan in 2009 said that considering the mounting pendency, vacations in the higher judiciary must be curtailed by at least 10 to 15 days and working hours extended by at least 30 minutes.

Apart from the earth’s rotation on its axis and the beating of the human heart, everything that works hard, needs some respite in order to maintain its efficacy. Lawyers too have often argued that in a profession that demands intellectual rigour and long working hours—both from lawyers and judges—vacations are much needed for rejuvenation.

Judges typically work for over 10 hours on a daily basis. Apart from the day’s work in court from 10.30 am to 4 pm, they also spend a few hours preparing for the next day. And vacations are often spent writing judgments.

In addition, judges do not take leave of absence like other working professionals when the court is in session. In fact, the profession turns most of them into recluses to the extent that, family tragedies and health being rare exceptions, they rarely take the day off for social engagements.

So increasing the number of vacation benches and decreasing the summer vacations may go a long way in decreasing the pendency of cases in the apex court. Of course, it will increase the workload of an already overburdened judiciary.

—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi