One of the most enjoyable episodes of Netflix TV series “The Crown” is “Marionettes” which recounts the real life criticism Queen Elizabeth II faced from Lord Altrincham (as he was known then) who, in his newspaper, blasted the Queen for being out of touch and unimpressive. While there is initial furore over his comments, public sentiment turns in his favour when he points out that he is in fact a defender of the constitutional monarchy and wants the institution to be better. He eventually gets to meet the Queen and hand over a list of three “starts” and three “stops” for reforming the monarchy.
It’s only sheer coincidence that the latest season of ‘The Crown’ starts on the day CJI Ranjan Gogoi’s tenure ends and a new CJI, Justice SA Bobde takes over. He will have a tenure of only 17 months but has the opportunity to put in place changes that might transform the Supreme Court for a generation. I want to use this coincidence to offer three “starts” and two “stops” as an agenda to Justice Bobde to implement as the new CJI. These are solutions to problems the Supreme Court currently faces and are well known.
Courts around the world are opening up their doors to the public and the Supreme Court should take the lead in India on this matter.
Start Live-streaming Supreme Court Proceedings
This is not a terribly original idea but it’s high time the Supreme Court ended the talk and showed action. At present, it is only live-tweeting of hearings by reporters that gives us a blow by blow account of what’s actually happening, and while the likes of Live Law and Bar and Bench do a commendable job on this front, this is not the best way to bring court proceedings to the public in this day and age.
Courts around the world are opening up their doors to the public and the Supreme Court should take the lead in India on this matter. If people understood what was actually argued in court and how the back and forth of legal arguments takes place, it would instill in them greater confidence that the outcome has been arrived at fairly. Live-streaming will also spread much greater legal awareness among citizens as legal concepts and issues become more widespread and not limited to a few experts.
Stop Miscellaneous Days
The source of the Supreme Court’s pendency problem is the Supreme Court itself. It entertains all sorts of cases only for the asking. While judges and lawyers claim that the Supreme Court is “selective” in the cases it chooses to hear, the truth is that nearly half of all cases filed before the Supreme Court is taken up for further hearing, even if, eventually the lower court’s orders are largely maintained.
Two days of the week are set aside for hundreds of five minute hearings on fresh cases. This is where Senior Advocates rule the roost, being able to get the court to hear more cases than it should. If decisions on whether to hear a fresh case were to be made only on the merits and not the standing of the lawyer, far fewer cases will be taken up, leaving the court to decide cases in time, and effectively .
Start Publishing Collegium Resolutions for Appointments and Transfer of Judges in Full
This too is not a new suggestion though it was started in 2017 and was the practice till recently until it was abruptly stopped. While certain sections may have not taken kindly to the rejection of names for elevation, that by itself is not a reason to stop publishing these resolutions. The information provided gives a glimpse into what is otherwise an opaque system and has a wealth of information for researchers who wish to make sense of the appointment process.
Justice Bobde has made it quite clear he thinks there’s no problem with the status quo in the Supreme Court and would probably prefer to leave things as they are.
Naturally, this has to be accompanied by making the criteria for appointment public. This is something that Justice DY Chandrachud has also acknowledged in his concurring opinion bringing the CJI’s office under the RTI and Justice Bobde can add immense credibility to the process by simply choosing to set out the criteria on which judges are appointed.
Stop Discretionary Allocations of Cases
The source of much criticism of the Supreme Court’s functioning in the last couple of years has been the manner in which cases have been selectively allocated to judges. This has given rise to the impression that a certain outcome is being sought in such cases. While most cases are allocated randomly to judges through a computer algorithm, the CJI still retains the discretion to allocate cases to benches on her choosing.
Justice Bobde has the opportunity to end this practice once and for all and go down in history as a CJI who gave up his power in the interests of the institution. By making all allocations purely algorithmic, he will ensure that the public retains confidence in the neutrality of the court.
Start Permanent Subject Matter Benches in the Supreme Court
Although the Supreme Court hears a wide variety of cases, there are some category of cases that are more frequent than others and require more specialization than others. Tax cases, employment cases, and higher education cases are three high volume case types which require a level of specialist knowledge.
To ensure they are dealt with in a coherent manner, Justice Bobde could ensure that a bench of 2-3 judges hear only these categories of cases for the better part of a year. Likewise, a Constitution Bench sitting through the year would dramatically reduce the number of pending important matters. This has been tried in the past to great success and needs to be repeated and expanded given the growing demands on the court.
In making this agenda for change, I am fully aware that Justice Bobde has made it quite clear he thinks there’s no problem with the status quo in the Supreme Court and would probably prefer to leave things as they are. I argue they are not and one hopes that soon into his tenure, he will see the need for change.
(Alok Prasanna Kumar is an advocate based in Bengaluru. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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