– Seema Sapra
On 14 October 2018, the Supreme Court Registry headed by the present Chief Justice of India J. Ranjan Gogoi issued a circular (merely a week after J. Gogoi assumed the Office of the CJI), notifying a complete change in how the Supreme Court will now deal with preliminary administrative scrutiny of fresh cases filed. Though the new filing and re-filing procedure escaped notice and comment from the Bar perhaps because it got labelled as a mere procedural change, in reality however, the new filing procedure for fresh cases in the Supreme Court is a drastic change from the earlier procedure and the new filing procedure itself violates the fundamental guaranteed right under Article 32 of the Constitution of India to approach the Supreme Court for violation of other fundamental rights.
Until 14 October 2018, a case was deemed to be lodged in the Supreme Court upon filing at the Registry filing counter whereupon a filing diary number was issued. Under the new procedure, a case will not be deemed to be lodged in the Supreme Court upon filing but will only be deemed to be lodged after any filing defects notified by the Supreme Court Registry have been removed and the case is re-filed with these defects removed. Until 14 October 2018, a case filed at the Supreme Court Registry filing counter as evidenced by the issuance of a filing diary number could only be disposed off by a judicial order passed by a Supreme Court Judge even if the Registry had pointed out filing defects. Under the new procedure, a case will not be placed before a Judge until the Petitioner rectifies all filing defects notified by the Registry and if the Petitioner fails to do this within the specified time period, the case will be treated as not having been filed and will not proceed further. Thus, under the new filing procedure, cases filed and in which the Registry notifies filing defects will never face scrutiny by a Judge unless the Petitioner removes the defects. Thus, these cases will be treated as not filed whereas earlier even such cases required a judicial order of dismissal for default passed by a Judge sitting in Chambers.
Why is this important? The right to approach the Supreme Court in case of violation of fundamental rights is itself a guaranteed fundamental right under Article 32 of the Constitution of India. The old Supreme Court procedure was that once filed, a case could only be dismissed by a judicial order even if the Registry had notified defects in the filing of the case. The Registry had no authority to dismiss a case. The old procedure contemplated that any matter filed, even if defective according to the Registry, would remain a case pending before the Supreme Court until it was dismissed by a Judge whether sitting in a Bench or alone as a Chamber Judge. Under the new procedure, if the Registry notifies defects upon filing of a case, the entire record including the original set with sworn affidavit and court fee will be returned to the Petitioner. Under the new procedure, if the case is not refiled after "curing" the defects within the stipulated time, the case will be treated as not filed and will no longer be a pending case. This will effectively end the case without a judicial order unlike in the old procedure. There will also be no court record of such cases in the Supreme Court.
Why is this important and how will the new procedure prejudice the right of a person to approach the Supreme Court for justice? Very often, petitioners-in-person are unable to understand the Registry's objections or to comply with them. Under the old procedure, despite such failure on the part of a petitioner, the petitioner's right to access justice was not defeated because the case remained pending until a judicial order disposing off the case. On any day when cases for such defaults were listed before a Chamber Judge in the Supreme Court, it was common to see petitioners-in-person appearing and telling the Court that they could not cure some defects and usually obtaining judicial orders granting time and even legal help to such petitioners. Very often, lawyers would also get additional opportunities and time to remove filing defects in cases filed through lawyers.
This layer of judicial scrutiny was important because it helped serve the cause of justice and to prevent a miscarriage of justice. There have been cases where the Registry has notified unreasonable or invalid filing defects and objections. There can be cases where a Registry Officer might be prevailed upon by lawyers or a powerful opponent to prevent a case from being heard by creating hurdles in the form of unreasonable or invalid filing objections by the Registry. There are cases where a litigant might for valid reasons be unable to comply with a Registry insistence on meeting a certain requirement. There might be cases of targeted persons or persons who are placed in circumstances where it becomes impossible or it is made impossible for them to rectify their petitions to satisfy the Registry. Imagine a whistle-blower fearing for his life who decides to approach the Supreme Court invoking the right to life under Article 21. He manages to file a petition bringing the evidence to the Court but powerful interests keeping a watch on his activities prevail upon a Registry Officer to create hurdles by notifying unnecessary and invalid defects. Imagine that the whistle-blower is then harmed or prevented from refiling his case and is eliminated. Under the new procedure this whistle-blower’s case will never go before a Judge and since the new procedure contemplates the return of all papers including the original signed petition, there will be no record of this whistle-blower’s petition before the Court.
The Supreme Court Registry is not a judicial body. It performs administrative functions which include scrutinizing new cases filed to verify that they comply with court requirements. The Supreme Court Registry can and does make mistakes. It can also be inefficient. Registry Officers can also be corrupted. Under the new filing procedure, the Supreme Court Registry can exclusively determine without any judicial scrutiny as to which cases comply with court requirements. The Supreme Court Registry can thus prevent a case from ever going before a Judge for judicial scrutiny.
In my view, the new filing procedure curtails the Article 32 fundamental right to approach the Supreme Court in cases alleging violations of fundamental rights. The new filing procedure will also result in injustice in other ordinary cases as the potential for misuse, mistakes, and subversion are enhanced. All petitioners who file petitions before the Supreme Court and especially those who claim their fundamental rights are being violated, deserve and are entitled to a judicial hearing. Under the old procedure, a preliminary hearing before a Chamber Judge was guaranteed. Only the “Court” had the right to dismiss a petition once it was filed and issued a diary number. The new procedure on the other hand empowers the Court Registry to prevent a case from even being filed or heard by a Supreme Court Judge. This amounts to a violation of the Constitutional mandate of Article 32 on the Supreme Court of India.
This is a very important issue with grave implications for access to justice. Article 32 is the bedrock of the Constitution of India. The new procedure flies in the face of Article 32 and therefore must be challenged by way of appropriate writ proceedings before the Supreme Court of India.
