CJI moots extra constitution bench sittings to clear backlog

Thakur, hearing oral mentioning of cases, said pending cases could come up sequentially for regular hearing of constitution benches


New Delhi: The constitution bench of the Supreme Court could sit for two hours on Mondays and Fridays to complete hearing on pending cases, chief justice of India T.S. Thakur said on Thursday.

“On Mondays and Fridays, judges get free by 1pm-1.30pm. We can request judges to stay back to hear constitution bench cases,” chief justice Thakur said.

Constitution benches consist of at least five judges of the apex court and decide on any case that warrants a substantial question of law and needs interpretation of the Constitution of India.

Thakur, hearing oral mentioning of cases, said pending cases could come up sequentially for regular hearing of constitution benches.

The Aadhaar unique identity case is one such case pending before the court. Being the most recent, and if the court takes up cases in order of their filing, it could be one of the last to be taken up.

The apex court had restricted the use of Aadhaar numbers to certain schemes through two orders issued on 11 August and 15 October. These include the public distribution system, distribution of cooking gas and kerosene, the rural jobs guarantee scheme, the Pradhan Mantri Jan Dhan Yojana, central and state government pensions, and the Employees’ Provident Fund Scheme.

There is also a question on the bench strength—will the court set up a 9- or 11-judge bench, or will it first go to a five-judge bench? The court needs to rule on the issue of whether the right to privacy is a fundamental right.

From 1950, the number of constitution benches being set up have declined. According to a study on the disposal rates of constitution bench cases in the Supreme Court since independence, published in the Economic and Political Weekly in February 2011, the court heard around 100 cases decided by a bench of five or more judges in the 1960s, but this figure fell to nine in the early 2000s.

The study looked at cases which were referred to a constitution bench from 1950 to 2009.

In addition, only 27% of constitution bench cases were decided within two years of filing in the 2000s; and 37% took more than eight years.

Nick Robinson, who authored the study, said that the trend hadn’t changed in the last few years.

“I do think that there has not been a noticeable uptick in the number of constitution benches that have been heard in recent years. There are some CJIs that hear more and some that hear less under their tenure, but in general, the court is hearing very few such cases,” Robinson said.

For 2010-15, Mint’s research turned up similar numbers. In the last six years, there have been 51 five-judge bench cases. However, no case was heard by a bench larger than five. One referral to a seven-judge bench in 2010 remains pending.

In fact, according to the Supreme Court website, as on 1 March, there are 29 constitution bench matters pending.

This is not to say that some cases are not expedited by the apex court. The much talked about National Judicial Appointments Commission case, which was referred to a five-judge bench on 7 April was decided on 16 October after day-to-day hearings (including that during the court’s holiday).

As far as Aadhaar is concerned, given that several key government projects hang in the balance, the government is likely to push for early setting up of the bench. In fact, several state governments, government departments and regulatory agencies had put up a joint defence seeking a modification of the 11 August interim order.

But there seems to be little hope. “We don’t know when the bench will be constituted and we are not expecting that it will happen anytime soon,” said an Unique Identification Authority of India (UIDAI) official requesting anonymity.

Given the track record of the judiciary, it seems that the Aadhaar privacy issue may not be solved anytime soon. So what option does the government have to salvage the programme quickly?

“The National Identification Authority of India Bill, 2010, is already there. Why not get it passed in the Rajya Sabha? The whole fight around Aadhaar is because it does not have legislative backing,” said the UIDAI official, who declined to be named.

UIDAI has been functioning under an executive order issued by the government in January 2009. Though the Bill was brought by the United Progressive Alliance government in 2010, a Yashwant Sinha-headed standing committee on finance did not accept it.

“There is no bar on the government from bringing in legislation for Aadhaar. But whenever the law comes in, it will still have to stand the test of constitutionality (once challenged before a court). If the issue is of privacy, which in this case it seems to be, then a right of privacy granted by statute will obviously stand at a lower footing than that emanating from the Constitution,” said Rahul Singh, a research scholar at Balliol College, University of Oxford. He added that the petitioners would likely ask for protection of privacy under the Constitution. According to him, the Constitution bench has its task cut out.

Although the government has dropped hints that Aadhaar may soon have a legal basis, the bill has not been brought forward for discussion in the current winter session of Parliament.

Speaking at the Delhi Economics Conclave on 6 November, finance minister Arun Jaitley said, “We can’t have a situation where Aadhaar is acceptable for certain measures to be adopted by the government, but not acceptable for other kinds of measures.”

The UIDAI official said that given that data has been collected for so many people, it needs a law for the data to be protected. “If the Aadhaar proposition is to be a winner, the government should immediately bring in a law. It will end all uncertainty,” he added.

Nevertheless, even if the government does not bring in the law, whenever the court hears the issue, there is hope for Aadhaar—according to the study cited earlier, in 60% of the cases referred to constitution benches between 1960s and 2000s, the respondent won. In the Aadhaar case, the government is the respondent.