The Chief Justice of India’s decision to constitute a “Social Justice Bench” at the Supreme Court of India must be viewed as a tacit admission of the failure of the apex court to devote adequate judicial time to such issues. While the Supreme Court’s interventions in public interest litigations (PIL) and constitutional questions find prominent coverage in the news media because of the general interest in these issues for casual readers, this does not reflect the actual workload borne by SC judges. As governments fail to act according to the statute and the legislature fails to hold governments to account or swiftly address legislative lacunae, the judiciary is increasingly being viewed by civil society as the enforcer, if not arbiter, of social justice in the country. CJI HL Dattu has now constituted a two-judge “social justice” bench which will convene on Friday afternoons for two hours every week. With an estimated 200 PILs already delegated to this bench, two hours a week is far too inadequate to dispense even a semblance of social justice in this vast country. 

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For over a decade now, the question of implementing the Directive Principles of State Policy and the practicability of converting these to rights-based legislations, has engaged the attention of lawmakers and judges. In its press statement on the formation of the new bench, the Supreme Court hinted that the new bench would tackle rights-based issues like right to food, health, shelter, drinking water, and the functioning of the PDS, as well as access to medicine. The bench would also deal with gender-based issues. With a dedicated bench to hear these issues, one can expect a measure of consistency in decision-making. Notwithstanding that, the ideology of the individual judges would continue to be a major factor. More importantly, a dedicated bench would help the Supreme Court to negotiate the legal minefield of various benches passing contradictory judgments on any given issue. Clarifying such precedents could help to provide a clear interpretation of the law as well as expedite the disposal of cases. Unfortunately, precedents set by two-judge benches do not enjoy the authority of three-judge or larger benches. Nevertheless, the institution of the two-judge social justice bench is an opportunity for the Supreme Court to reorient itself towards addressing the greatest good of the greatest number.

In 2013, in a seminal research paper, analysing the Indian Supreme Court’s workload, Nick Robinson pointed out that between 2007 and 2011, PIL’s made up just 1.3 per cent and constitutional matters involving five-judge benches just 0.3 per cent of the total cases settled. In contrast, private litigation involving criminal matters (20.9 per cent), service matters (15.6), ordinary civil matters (11.5), land acquisition (9) and tax cases (13.2 per cent) formed a bulk of the settled cases. Writ petitions, which are concerned with the violation of fundamental rights, plummeted from 41 per cent of the Supreme Court’s workload to just 2 per cent in 2011 while special leave petitions concerning discretionary civil and criminal matters ballooned to 84 per cent of the court’s workload. Notwithstanding these statistics indicating a clear change in the character of the Supreme Court — a shift from the imperative to uphold social justice, hear cases of violation of fundamental rights, and interpret the Constitution — critics of judicial activism have questioned the formation of the social justice bench. Viewing the new bench as a challenge to the policy-making imperative of the Executive, they are apprehensive of the activist role the bench may play in social and environmental issues. Such fears are misplaced. Empirical evidence indicates that the Supreme Court is able to intervene in social issues only in a limited manner at present. The relevance of the social justice bench, in such a context, can hardly be overstated.