Constitutional questions referred to larger benches of the Supreme Court long ago have literally gathered dust, says M J Antony
Someone recently sat down and counted the number of words in the Constitution of India. The tally was 140,000. That makes it the longest constitution in the world. It is also the most amended, over 100 times in 65 years. Fortunately, the core is intact unlike the legendary Ship of Theseus that became a new one after suffering too many patch-ups.
Another distinguishing mark of the Constitution is that it has made the Supreme Court the most powerful one in any democracy. But that is not a matter of rejoicing; its shoulders are creaking with the load of 66,000 cases in arrears and some 5,500 new ones added every month.
The founding fathers thought the court would deal only with cases of constitutional importance, like the US Supreme Court. But over the decades, sittings of constitution benches have become a rarity. Special leave petitions against orders of high courts and sundry authorities have choked the court. Last week, for instance, a strident "Save Campa Cola" campaign in Mumbai with T-shirts and human chains appeared to have paid dividends to the residents who had repeatedly knocked at the doors of courts to resist the demolition of their illegal apartments. The judges said they were "deeply disturbed" throughout the night over the plight of the agitators purveyed on television. Ultimately all the gimmicks didn't work. After all slums are razed without that much fuss.
While 30 judges of the court are busy dealing with issues such as regularisation of posh colonies that behave like little republics, landlord-tenant disputes, controversies over the retirement age of clerks and generals, the constitutional questions referred to larger benches long ago have literally gathered dust, collected over decades and before computerisation of records. The court states that there are 39 constitution bench cases (requiring more than five judges) which are ready for hearing. They were so for a long time but the dog-eared files have not trundled from the registry racks to the courtroom due to shortage of judges, other urgent matters or long vacations.
Some questions waiting for answers have the potential to change the economic landscape. For instance, the court acknowledged over a decade ago the need to reinterpret the definition of "industry" in the Industrial Disputes Act. The interpretation given in 1978 in the "Bangalore Water Supply" case was found unsatisfactory by a later set of judges as not being "comprehensive, clear or conclusive". But such an important issue has been under the carpet far too long.
The revision of the extent of the right to property, once a fundamental right and now only a legal right, is waiting for the final word for nearly 17 years. The roots of the controversy go back to the 25th amendment to the Constitution. Several constitution bench decisions later added more forensic haze to an already problematic issue. Unable to harmonise all of them, a bench in 1996 referred the issues to a larger constitution bench in the case, Property Owners' Association vs State of Maharashtra. But it has been in limbo all these years.
Another heady question with a long hangover deals with the competing powers of the state and the central governments over liquor trade. The court had framed six questions in State of UP vs Lalta Prasad. But seven years later, the case has fallen under the stool, as it were, and not visible. The issues involved are a heavy cocktail of constitutional questions. The referral judgment hinted at why the answers are not forthcoming: "not only because of the money, political clout and muscle power linked to this field of commerce, but also due to the complexity of laws."
Apart from the above samples of high-profile cases, there are some constitutional questions raised by parties who might as well have forgotten them after two decades. Rajeev Dhawan vs Vishnu Hari Dalmia (1994), Subramanian Swamy vs Arun Shourie (1990), Sambalpur Merchants Association vs State of Orissa (1994) are some of them.
A recent study by a Harvard researcher has reportedly found that matters decided by constitution benches have been declining steadily over the decades. In the first half of 1960s the court disposed of 134 such cases. In 2005-09, the average plunged to 6.4.
The court has been mired in minutiae far too long. The current chief justice has tried to revive the momentum of hearing constitutional cases but he can only scratch the surface of the problem in his short tenure, looking at the Herculean task.
Constitution bench cases, going by the revered practice of long-winded arguments interspersed with anodyne anecdotes by ageing counsel, take months, not counting the time to deliver judgments. Life is too short to track their progress.