“These and so many other matters are there,” Chief Justice SA Bobde said when asked by the Indian Express on Tuesday about when the Supreme Court will start hearing major matters of Constitutional importance that are pending before it. “I cannot say when they will be heard but we will certainly hear them.”
The Supreme Court, like many other institutions in India, has been severely hampered by the Covid-19 crisis. Since the nationwide lockdown was imposed in March 25, the court has been hearing what it considers to be urgent matters.
But can India afford to allow the country’s highest Constitutional court to suspend its most important function of interpreting the Constitution in major disputes?
There is a long list of Constitutional and other major cases waiting to be heard. There is the challenge to the abrogation of Jammu and Kashmir’s special status and the decision to reorganise it into Union Territories. There are hundreds of petitions relating to the Citizenship Amendment Act, which sparked violent protests across India between December and February. There is the electoral bonds case that questions the opaque instrument of electoral funding that has come to define Indian elections.
Many people have also challenged the decision to reserve seats in educational institutions and government jobs for members of the economically weaker sections among upper castes that was rammed through Parliament in January last year, just ahead of the Lok Sabha elections.
That the court will eventually hear these cases is not a revelation. The crucial question is when.
The Supreme Court has 34 judges, including the chief justice. However, since the lockdown, hardly a bench or two have functioned on a daily basis. It is not as though the court lacks the technology to hear matters. The benches that are functioning have used video conferencing facilities that do not require the physical presence of the parties in court – not even of the judges.
With only one or two benches hearing urgent matters, the assumption has to be that the other judges are not hearing many cases. Since the lockdown began on March 25, the court has said it has delivered 215 verdicts. But most of these 215 are connected matters, involving several petitions in the similar disputes clubbed together. Many of the disposals have been review petitions.
This situation is untenable. In matters like the reservation case and the reorganisation of Jammu and Kashmir, time is important. The longer the delay, the firmer the new system will take root. The government could argue that the decisions have become irreversible: it may attempt to sustain decisions that may be unconstitutional by claiming fait accompli.
In the United States, for example, despite record number of Covid-19 related deaths, the Supreme Court of the country has continued to deliver judgements of constitutional importance.
Pandemic or not, delaying justice could end up denying justice.