In the Sabarimala case(Indian Young Lawyers' Association v. State of Kerala), Supreme Court had rendered a path breaking judgment which led to a huge furore in the State of Kerala. A batch of fifty-plus Review Petitions was filed, the matter heard and the judgment reserved on 6th February, 2019. It has been 7 months since, but the judgement is yet to be delivered.
Likewise, in the Rafale Judgment, the review petitions were heard and judgement was reserved on 10th May 2019. The delay in delivery is nearing five months,since 10th May. As the case is followed internationally and touches upon the status of prime personalities of the country, the delay is crucial. The Judgment was expected before the Lok Sabha elections and had it come before, it would have either absolved or indicted the personalities involved; each an issue of national importance involving free choice of candidate and credibility of the returned candidates respectively.
The Supreme Court routinely admonishes the Trial Courts and High Courts for delaying the delivery of judgments. The concurring judgments of Justices K.T. Thomas and R.P.Sethi in Anil Rai v. State of Bihar (decided on 6 August, 2001),reflect glaringly the perspective of the apex court on the issue of undue delay on the part of judges in delivering a judgement after the conclusion of the arguments.
Commenting on the unbelievable delay on the part of High Court Judges, Justice K.T.Thomas queried thus:
"If delay in pronouncing judgments occurred on the part of the Judges of the subordinate judiciary, the whip of the High Court studded with supervisory and administrative authority could be used and it had been used quite often to chide them and sometimes to take action against the erring judicial officers. But what happens when the High Court Judges do not pronounce judgments after lapse of several months, and perhaps even years since completion of arguments?
Since the procedural codes or the Constitution itself doesn't provide any solution to resolve such gross impropriety on the part of High Court Judges, the Supreme Court thought it fit to explain the legal background as follows:
"The Constitution did not provide anything in that area presumably because the architects of the Constitution believed that no High Court Judge would cause such long and distressing delays. Such expectation of the makers of the Constitution remained unsullied during the early period of the post-Constitution years. But unfortunately, the later years have shown slackness on the part of a few Judges of the superior Courts in India with the result that once arguments in a lis concluded before them, the records remain consigned to hibernation. Judges themselves normally forget the details of the facts and niceties of the legal points advanced. Sometimes the interval is so long that the Judges forget even the fact that such a case is pending with them expecting judicial verdict. Though it is an unpleasant fact, it is a stark reality".
As a solution to the aforesaid, the authors of the judgement reposed full faith in the Chief Justices of the High Courts and passed a series of directions, which are:
" (i) The Chief Justices of the High Courts may issue appropriate directions to the Registry that in case where the judgment is reserved and is pronounced later, a column be added in the judgment where, on the first page, after the cause-title, date of reserving the judgment and date of pronouncing it be separately mentioned by the court officer concerned.
(ii) That Chief Justice of the High Courts, on their administrative side, should direct the Court Officers/ Readers of the various Benches in the High Courts to furnish every month the list of cases in the matters where the judgments reserved are not pronounced within the period of that months.
(iii) On noticing that after conclusion of the arguments the judgment is not pronounced within a period of two months, the concerned Chief Justice shall draw the attention of the Bench concerned to the pending matter. The Chief Justice may also see the desirability of circulating the statement of such cases in which the judgments have not been pronounced within a period of six weeks from the date of conclusion of the arguments amongst the Judges of the High Court for their information. Such communication be conveyed as confidential and in a sealed cover.
(iv) Where a judgment is not pronounced within three months, from the date of reserving it, any of the parties in the case is permitted to file an application in the High Court with prayer for early judgment. Such application, as and when filed, shall be listed before the Bench concerned within two days excluding the intervening holidays.
(v) If the judgment, for any reason, is not pronounced within a period of six months, any of the parties of the said lis shall be entitled to move an application before the Chief Justice of the High Court with a prayer to withdraw the said case and to make it over to any other Bench for fresh arguments. It is open to the Chief Justice to grant the said prayer or to pass any other order as deems fit in the circumstances.
21. We hope and trust that the above guidelines shall be strictly followed and implemented, considering them as self-imposed restraints "
Amongst the two judges who delivered judgement, Justice Sethi passed away in 2007. The revered soul of the judge must be in constant pain seeing the current trend of 'rewarding' those who "are unmindful of their obligation and the oath of office". For instance, Justice Sunil Gaur of the Delhi High Court reserved a judgment in a simple anticipatory bail matter on 11th March 2019 and delivered the judgment just two days before his retirement, i.e.,on 20th August 2019, after a delay of more than 5 months.Immediately, he was duly appointed as the Chairperson of PMLA (Prevention of Money Laundering)Appellate Tribunal. As the credentials of the judges, particularly the number and quality of judgments, is not a consideration for judicial appointments in India, the retired judge of the High Court sailed in smoothly. Interestingly, in some cases, the very independence and quality of the judgments acts to the detriment of the judges, if they fall on the other side of the spectrum.
Since the Supreme Court is a court of record, presumably one can contend (though unsubstantiated) that nothing stated here in above is applicable to that court.Else we can be selectively forgetful and can proceed with a consoling chant -"Actus Curiae Neminem Gravabit", that an act of the Court shall prejudice none.
However, the telling fact remains that there exists a greater burden on the Apex Court to render decisions swiftly as they are binding on all courts in India as per Article 141 mandate. Specifically, in matters of constitutional importance, delay of any kind is enough to render the remedy, nugatory. There is a not so subtle hypocrisy in the chastising of lower courts for undue delay when the Hon'ble Supreme Court itself fails to deliver judgements within a reasonable time.
In the case of Asian Resurfacing of Road Agency v. Central Bureau of Investigation (2018), the Supreme Court had restricted the duration of 'stay' in criminal as well as civil trials to six months. However, in August 2019, the Supreme Court excused itself from staying with the No Stay Rule.
The workload of the judges cannot be a reason for delay in delivery of judgements. It can be seen that the same judges who have reserved judgments inordinately, are churning out judgements in many other cases. It gives an impression that rather than reserving the judgements, the judges are preserving the same. If the judgement writing is the real issue, judges could always pronounce the decisions in a few paras and supply the details later, which is normally done in many cases.
(Author is a practicing Lawyer in Supreme Court of India)