The Courts and the Constitution – 2023 in Review,  Panel 4: Taking Stock of the Judiciary


This report summarizes the panel discussion on the topic of “Taking Stock of the Judiciary” conducted during the Courts and the Constitution Conference at NALSAR. The Panel saw the participation of legal academicians and practitioners of the Court who illuminated various facets that plague the Indian Judiciary. The panel included Mr. Sourav Das, Mr. Nicholas Robinson, Ms. Chitrakshi Jain, and Dr. Rahul Bajaj, and it was moderated by Mr. Siddharth Raja. Mr. Sourav Das was the initial speaker and spoke about his recent reporting on the allocation of judges and how opaqueness surrounds the master of roster system, under which politically sensitive cases are making way to particular benches in disregard to the Supreme Court’s rules. Next, Mr. Nicholas Robinson, an independent scholar who studies the Indian Judiciary, brought to light the historical trend in the decline of the number of Constitutional Benches being constituted each year and how it has had adverse impacts on judicial decision-making. He discussed the paper he is currently working on and what reforms can be made by the judiciary to solve the issues that have arisen due to the lack of constitutional benches. Next, Ms. Chitrakshi Jain shed light on the fiscal aspects of the judiciary and how the tussle between the Supreme Court, various State governments and the Union Government shape the problem concerning adequate judicial infrastructure. The last speaker of the panel, Dr. Rahul Bajaj, brought up the experiences of disabled people in accessing justice and how recent reforms in both the Delhi High Court and the Supreme Court have helped nudge the Courts to be more sympathetic to the needs of disabled people. The speeches of the panelists was followed by an invigorating round of Question from the audience. 

Speaker 1: Mr. Saurav Das (Independent Journalist)

Mr. Sourav Das highlighted the recent trend at the Supreme Court, where politically sensitive cases make their way only to particular benches. He believes this contravenes the Supreme Court’s own rules. He discussed his own reportage of this trend, particularly focusing on the case of Umar Khalid’s bail plea in his speech.

Mr. Das started the discussion by describing the ‘Master of the Roster’ system, under which the Chief Justice of India (“CJI”) has the discretion to allocate cases and constitute benches overhearing a matter. He lamented the lack of transparency and opaqueness which surrounds the system and emphasized the role of media in highlighting such issues to the public and the need for continuous scrutiny of how the allocation of cases works as it has a profound impact on the working and perception of the judiciary.

He also reminded the audience that the Master of the Roster system has no legal basis in law and has evolved as practice over time. The system has several critics even within the Court, as he reminded the audience about the 4-judges conference.  He then focused on the specifics of the Umar Khalid bail plea and how the bail appeal was initially placed before the Bench of Justices Boppana and Prashant Mishra. However, when one of the judges recused himself from the bench, the case was dropped from the cause list. It was subsequently transferred to a bench headed by Justice Bela Trivedi without any motion to transfer the case and without the approval of Justice Boppana. The matter was further complicated when his bail plea was clubbed with the constitutional challenge to UAPA provisions which was already pending before the CJI’s Court.

He highlighted how the allocation of judges and the functions of the Court registry are directly under the purview of the CJI. Even though the CJI is only regarded as the first among the equals, he is responsible for the administration of the Court. Such a transfer made in contravention of SC’s rules is a severe indictment of the court under his leadership. The CJI has refused any influence in the allocation of cases and has emphasized that allocation is made as per a laid-out procedure and subject matter expertise.

Mr. Das further called upon the need to focus attention on the lack of transparency and accountability in the functioning of the Court. He highlighted how Arvind Kejriwal is the latest politician whose bail plea has come before a bench comprising Justice Bela Trivedi. Seen in totality, the allocation of certain politically sensitive cases in apparent contravention of SC’s own rules raises serious questions about the lack of transparency and accountability that govern the Master of the Roster system.

Speaker 2: Mr. Nicholas Robinson (Independent Researcher)

Mr. Robinson, who has worked extensively on the Indian Judiciary, brought his expertise to analyse the structure of the Indian judiciary and how the lack of constitutional benches has impacted the Indian jurisprudence. He introduced the paper he has been working on which concerns the phenomenon of Constitution Benches in the Supreme Court, titled, “Deciding how many Judges should Decide: The Indian Supreme Court’s Constitution Benches.”

Mr. Robinson informed the audience of his previous work on the evolution of constitutional benches where the authors traced how the number of Constitution Benches constituted each year has subsided from over 100 a year in the 1960s, to less than 10 in recent years. He recorded how despite the number of judges of the SC being expanded from 8 to 33, it has not resulted in an increase in Constitutional Benches. One of the major factors behind this phenomenon is how the Constitution imposes a requirement of a minimum of 5 judges under Article 145(3).  The Constitution specifies that a Constitutional Bench shall have to decide matters which involve only “substantial question of law.” He further highlighted how the phrase substantial question of law has not yet been properly explained in the Indian jurisprudence. The drafters of the Constitution understood it to mean questions which have not been authoritatively settled. He highlighted how this problem has gone unexplored by a constitutional bench, where guidelines might be laid down to determine what cases should be adjudged by a 5 or greater than 5 judge bench. This has the effect of creating ambiguity and discretion in the kind of cases which come up before a constitutional bench.

He elucidated the stakes involved when constitutional courts do not undertake the constitutional adjudication. According to him, it creates the problem of consistency, where multiple benches of the court give contradictory and conflicting judgements. Smaller benches of the court also tend to lead to the problem of forum shopping and bench hunting. Moreover, there have been instances where the decisions of the smaller bench have been often overturned by the larger bench of the SC, which raised questions of the quality of judgements presided over by smaller benches. He highlighted how larger benches also ensure that judicial resources are spent more efficiently and result in judicial innovation such as PILs.

He finally focused on the reforms that could be introduced to address the issue of constitutional benches.  His first suggestion focused on laying down substantive criteria that decide what kind of cases come for adjudication. For this, he envisages a constitution bench which admits matters for constitutional adjudication or a certification of a similar kind as provided under Article 132.

Another important role could be reducing the admission of special leave petitions. Professor Aparna Chandra has illustrated in her recent book that SLPs and appeals occupy most of the docket of the Supreme Court which leaves very little room for the Court to take up constitutional questions. Moreover, steps must be taken to reduce the CJI’s control and influence over the composition of the bench, with a focus instead on randomized or subject matter expertise as the basis for the constitution of benches. 

Speaker 3: Ms. Chitrakshi Jain (TrustBridge, Rule of Law Foundation)

The next speaker on the panel highlighted the issue of fiscal restraint which binds the Indian judiciary and how the issue has evolved over time. Under the scheme of the Constitution, the High Courts are responsible for managing the district judiciary and state governments were placed in charge of infrastructure for the judiciary at the state level. Ms. Chitrakshi argued that in recent decades, the Supreme Court has usurped both the State governments’ role and undermined the High Court’s supervision over the lower judiciary. However, while doing so, it has not made itself open to public scrutiny over its finances. Ms. Chitrakshi argues that regardless, the Supreme Court is ill-equipped to handle the responsibility of public finance.

She illustrated this using a string of cases. In the All India Judges Association v. Union of India, both the State and Union Governments contested that the SC was violating the design of the constitution by enforcing pay commission rules to district judicial officers, without taking the financial constraints of States into account. All such arguments were, however, unilaterally set aside by the Court.

In Malik Muzzafr v. UP Public Service Commission, when the legality of UP service rules was challenged, the SC took up this opportunity to monitor the recruitment of district officers in UP State, which it continues to do today. The Supreme Court in the case rejected the argument of encroachment on the jurisdiction of State Public Commissions, and appointed a committee to oversee recruitments and ordered regular updates to be placed before it. Lastly, in Imtiyaz Ahmed v. The State of UP, while adjudicating upon the power to stay legal proceedings, SC took the opportunity to mandate the Law Commission and state governments to calculate the judge strength of each court.

These cases illustrate the willingness of the Supreme Court to not only intervene in matters which also concern lower judiciary, but also usurp and encroach into what clearly has been established as per the constitutional domains of the legislature. While the drafters of the Constitution gave autonomy to the judiciary to appoint its own officers to secure its independence, even Dr. Ambedkar expressed concern in putting the judiciary in charge of public finances. Ms. Chitraksha also called into question the track record of the judiciary while managing public finances. While the lower judiciary is accountable to the High Court and High Courts to the Apex Court, there is no system to exercise supervision over the Supreme Court. She highlighted how in March 2022, the Parliamentary standing committee made remarks on the failure of the Supreme Court registry to account for failures at audits conducted by the Auditor-General. The Supreme Court usually supervises the infrastructure and allocation of funds through ad-hoc committees which are not accessible to the public, and remain hidden from public scrutiny. The Supreme Court registry has also failed to disclose reasons for its repeated delay before the Parliament Standing Committee when enquired through RTIs.

This case encapsulated the apprehensions caused when Courts intervene in cases concerning the use of public finances. Moreover, the Supreme Court frames solutions and attempts to apply them universally across courts of the country, without having the mechanism to supervise their correct implementation. For example, while there exists a scientific criterion for calculating the judge strength of each Court, according to Ms. Chitraksha’s analysis, various Courts are relying on old parameters of the population to fix judge strength.

Lastly, Ms. Chitraksha alerted the panel about how the Union government for a long time has been running a Centrally Sponsored Scheme for judicial infrastructure, however, its funds have remained unutilized calling into question accountability. The speaker in conclusion said that the judiciary has never been great in making itself accountable, which is something both the judges and the registry need to address if they seek to utilize public finances.

Speaker 4: Dr. Rahul Bajaj, (Founder, IraLaw)

Dr. Rahul Bajaj, who is currently working as an attorney at IraLaw, was the fourth panelist. He spoke about two broad issues; firstly, regarding the issue of accessibility of courts for marginalized people with a special focus on disabled people, and secondly, the recent phenomenon of judicial evasion by the Apex Court especially when it comes to matters of social justice.

On the first issue, he initiated the discussion by asking the plenary question of accessibility of the Courts to disabled people, who are one of the stakeholders in the justice system. Section 12 of the  Right of Persons with Disability Act, 2016 promises to every citizen access to justice irrespective of their disability. Sub-sections 1, 2, 3 and 4, create obligations on the State to make sure that disabled people have the right to access all judicial bodies or any other institution without discrimination. Sub-section 3 makes the State responsible for making reasonable accommodations for disabled people under government schemes and programs. Similarly, sub-section 4 gives impetus to the state to ensure public documents are accessible to everyone, including their storage in an accessible format. It also provides for making available communication in the preferred language, which under judicial proceedings must also extend to sign language interpretations for court proceedings, wherever required. 

Dr. Bajaj highlighted the case of All India Judges Association, where CJI Dipak Mishra, emphasized that we have to move forward from disabled friendly to differently-abled friendly infrastructure. Dr. Bajaj then went on to address the broad issues that are faced by disabled people, especially with respect to disabled practitioners of law. They have to struggle with access to information in a readable and disabled friendly way. This is especially true with regard to the practice of courts to upload scans of documents which are not OCR enabled.

Dr. Bajaj went on to highlight how he has closely worked with both the Delhi High Court and the Supreme Court to provide alternatives to the image-based captcha which acts as a major hindrance for visually impaired people in accessing court orders. In line with these changes, the Supreme Court has also come up with an SOP to ensure court filings are made in an accessible way.

Dr. Bajaj has closely worked with the Supreme Court Committee on Accessibility, which was constituted by CJI Chandrachud and headed by Justice Ravindra Bhat, to make the Court greatly accessible for persons with disabilities, women as well as senior citizens. The Committee which submitted its report in October, 2023 laid down 8 principles which the Court must follow to ensure accessibility.

While the report has been submitted, he highlighted the need to ensure that the report is implemented under a strict timeline. The report recommends various infrastructural reforms which the Court must undertake including setting up a disability helpdesk, proper signage in braille, having lifts and ramps installed, and having QR code-based navigation and fire and safety routes which are disabled friendly.

Towards the end of his speech, Dr. Bajaj highlighted the need for the Court to concurrently take up matters of social and economic importance for constitutional adjudication. This ensures and creates a belief among the practitioners and the population that the judiciary is committed to the ideals of the Constitution and also sends a message to the judiciary below to take up related matters for adjudication. Lastly, he emphasized that as stakeholders of the justice system, we must also remember that in all such cases what’s at stake in matters of disability is the rights of such citizens. He believes that relief must be provided to them on an expedient basis. At the heart of the matter of accessibility rights lies a citizen’s right to live a life with dignity and equality. 

 Written by: Ravi Pahwa

Edited by: Kartheek Vegesana 









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