The move, he believes, would be a great step forward in clearing the massive, growing pile of pending cases across Indian courts. The Supreme Court itself has a more than 63,800 pending cases and the national backlog is possibly close to three crore cases. Against this backdrop, it seems like a luxury for the higher courts to be closed for an average of two months a year, during summer, Diwali and winter.
Lodha has recommended that instead of all the judges going on vacation all at one time, individual judges should take their leave at different times through the year, so that the courts are constantly open and there are always benches present to hear cases.
On Wednesday, after Lodha sought feedback from all stakeholders on the issue, the national Bar Council of India held an official meeting with the heads of all state-level Bar Councils to assess how the proposal could be implemented. "None of us are opposed to the idea of courts being open for longer, but we need to deliberate on the details of how it could be implemented," said advocate Biri Singh Sinsinwar, the chairman of the Bar Council of India, which represents Indian advocates and lawyers.
The Council is now preparing to constitute an 11-member committee to discuss implementation with the chief justice. "Our main concern is how a new system would affect advocates," said Sinsinwar. "When would they get to go on leave?"
The preoccupation with accommodating lawyers' vacations is a surprising aspect of a rather old debate over court holidays and its role in creating an enormous backlog of cases in India. In 2008, the Parliamentary Standing Committee on Law and Justice tabled a report that described the system of vacations as a “colonial legacy” that is irrelevant today, recommending that they be done away with. In 2009, the Law Commission of India also recommended that the number of working days for judges should be increased to tackle the backlog of cases.
At present, the Supreme Court hears cases for 193 days a year, high courts are open for 210 days and trial courts work for 245 days. In England, which instituted the system in colonial India, high court judges work for just 185 to 190 days a year while district judges are expected to work for at least 215 days.
Singapore, much like India, officially grants Supreme Court vacations for three weeks in summer and one month in winter. Internationally, one of the few exceptions are several state and federal courts is the United States of America, where the concept of long court holidays was cast aside in favour of keeping courts open on all weekdays.
“Every day that a court is closed, the backlog of cases will always increase, so Justice Lodha’s suggestion is perfectly logical,” said retired high court judge RS Sodhi. “If leaves are regulated, the judicial process will not stop, and we will be able to deal with cases continuously.”
While Indian judges are open to the idea of flexible breaks some prominent lawyers have their own vacations in mind while expressing their opposition.
“When a lawyer takes up a case, he needs to be prepared to be called for a hearing at anytime,” said PH Parekh, president of the Supreme Court Bar Association. “If official vacation slots are scrapped, judges will still get their holidays, but lawyers will get no rest, because they could get called to court any time.” According to Parekh, it would be much more fruitful to reduce the number of vacation days for courts and to increase the number of working hours every day.
Delhi-based lawyer Nikhil Mehra, however, dismisses these concerns. "No one is stopping private lawyers from going on a holiday whenever they want to," said Mehra, who believes that chief justice's proposal should be implemented, at least on an experimental basis. "Once it is implemented, people are likely to adapt to the change and will align their holidays with lighter periods in the court schedule."
However, Mehra emphasises the fact that court vacations have their own utility. Vacation benches, for instance, hear a number of urgent cases during holidays, and judges also use the time to research and write judgements. "When the courts reopen, they usually deliver a spate of judgements that judges had been working on," said Mehra.
In addition to that, some lawyers are not convinced that scrapping vacations will be able to address the enormous number of pending cases in Indian courts. In fact, in 2010, Andhra Pradesh HC judge VV Rao had calculated that the Indian judiciary would need 320 years to clear the three-crore case backlog.
“The main problems are that we are short of judges, that judges often go on sudden leave and that litigants waste a lot of the courts’ time by prolonging their petitions,” said Mumbai-based lawyer Vandana Shah. “All of these issues have to be addressed simultaneously if we seriously want to address pending cases and stop people from using the slowness of our judicial system as a punishment in itself.”
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