The shake-up: Will CJI Khanna’s decisions on listing resolve pendency and delay troubles?

“This will be Chief Justice Sanjiv Khanna’s first proper week, if you look at it,” Talha Abdul Rahman, Advocate on Record (AoR), told me hurriedly after a hectic Monday in court. Justice Khanna had taken oath as India’s 51st Chief Justice a week ago. His predecessor, D.Y. Chandrachud had initiated several institutional changes during his term. But when CJI Khanna took over, there were over 82,000 pending cases in the Supreme Court.

During his first week in office, the only communication from CJI Khanna to the public was a one-page vision statement highlighting his intention to make judgements “more comprehensible” and prioritise alternate dispute resolution. His first administrative circular was issued last Saturday, the final working day of his first week in office. It announced that regular matters, Special Leave Petitions in which leave has been granted and substantial hearings are being conducted, will not be heard until further orders.

The circular explained that no regular matters would be listed on Wednesdays and Thursdays—days of the week traditionally reserved for hearing regular matters. Instead, ‘after-notice miscellaneous matters’, will be taken up on those days. Earlier, those matters were taken up only on Tuesdays. 

When a Special Leave Petition is filed in the Court, it is first heard as a ‘fresh matter’, and a decision is taken on whether it has to be admitted. A notice is issued to the respondents if the matter is admitted. Matters in which hearings are taking place after the notice has been issued are called ‘after notice miscellaneous matters.’ When leave is granted to the SLP, the ‘after notice miscellaneous matter’ turns into a regular matter.

In addition, the circular stated that any Special Bench or part-heard matters listed on Tuesday, Wednesday or Thursday, would be heard after lunch.

Typically, Mondays and Fridays are reserved for fresh matters. Tuesdays are reserved for after-notice miscellaneous matters. And Wednesdays and Thursdays are kept for regular matters.

This week, law offices in Delhi have been abuzz with speculation over what CJI Khanna seeks to achieve with this new schedule. While a total doing away with regular matters is completely new to many advocates, others say that it is an institutional culture borrowed from the Delhi High Court where Justice Khanna served for 13 years before his elevation to the top court. But amidst these speculations, a common discontent remains: Why was the Bar not consulted before this decision? After all, the disgruntlement about the drawbacks of the listing system under Chief Justice Chandrachud is still fresh. 

“It has to be a temporary measure, no other way”

The circular does not put a time limit and simply states that advocates should wait “until further orders.” Anuj Kapoor, an AoR, was convinced that the move had to be temporary, intended to tide over the transition period. Kapoor and four other advocates I spoke to predicted the measure will remain in place for six weeks, until the winter vacations. “I suppose a properly conceived system should come into force after the vacations,” he said.

Rahman said that the measure was likely a response to the high pendency. The logic is that a lot of the after-notice matters that will be heard on Wednesdays and Thursdays will not be granted leave, and would count towards disposal. “It’s like: ‘Immediately I need to bring down the number in the future list’, Rahman said, “As soon as the numbers are somewhat under control, we can resume the regular hearings.” He explained that a complete doing away with regular hearings was practically impossible. “A lot of service cases are in regular matters, for instance.”

Some feel that further delaying regular matters is not a good idea because they are important and are long-pending. “Regular matters are already pending from the last 10, 12, 20 years,” said Shwetank Sailakwal, an AoR. “There are some important issues that can only be decided in those regular hearing matters. If this measure continues till the end of December…there will be too much delay in those cases.”

An inspiration from the Delhi High Court, but is it a positive one?

During his tenure at the Delhi High Court, Justice Khanna had actively engaged with the Delhi Judicial Academy, the Delhi International Arbitration Centre and the District Court mediation centres on institutional issues. His initial set of reform-based decisions could have their roots in this work. 

Kapoor, who has practised extensively before the Delhi High Court, explained that there is a fixed date for every non-regular matter before the High Court. “There is no ambiguity or uncertainty about it,” he said, noting that the matter would invariably be listed on that day. Kapoor hopes that the same discipline is followed in listing in the Supreme Court. 

He also stated that, by general practice, barring few exceptions, the last week before the Supreme Court closes for any long vacation is turned into a miscellaneous week, and no regular matters are heard that week. This also happened last year when the Court closed for December vacations. Assuming that the move is indeed temporary, regular matters will likely be listed from January 2025, under the new circular. For now, miscellaneous matters will be heard for the upcoming six weeks leading to the winter vacation.

While there are others who agree that this listing strategy may be inspired by the Delhi High Court, they don’t have a positive view of the development. Sailakwal, for one, told me that regular hearing matters “never see the light of day” in the Delhi High Court. Sailakwal, who has been practising before the Delhi High Court since 2008, said that while some courtrooms of the High Court are able to finish their supplementary and advance lists, there are “overburdened” courtrooms which are unable to finish even their advanced lists—in these courtrooms, regular matters don’t even come up in the post-lunch sitting.

The breakdown between regular and non-regular pendencies

Soon after U.U. Lalit, the 49th Chief Justice, took office in August 2022, he listed 25 long-pending Constitution Bench matters. After him, CJI Chandrachud continued the initiative and even expressed his willingness to make Constitution Benches a “permanent feature.” Both CJI Lalit and Chandrachud focussed on Constitution Bench pendencies to tackle the Court’s pendency crisis.

CJI Khanna seems to be going with a different strategy. Kapoor suggested that this might be because there is less urgency to dispose of regular matters, where there are often interim reliefs in place. “All matters which are categorised as regular are ones in which the respondent has entered appearance and the respondent has tried to persuade the court to either vacate the stay (passed in an interim order) or dismiss the SLP,” Kapoor explained. “And the Court has taken a view to let the interim order continue till the appeal is finally decided.” 

In miscellaneous matters, on the other hand, hearings can go on for a long time after notice is issued—this is generally because the respondent party keeps seeking and obtaining extra time to file a reply.

Rahman told me that the strategy is likely based upon a study of the breakdown of pendency data which is exclusively available to the Supreme Court. The month-wise data we at the Supreme Court Observer put out is based on figures from the National Judicial Data Grid (NJDG) and the Justice Clock. The NJDG breaks up pendency data into registered and unregistered cases; and civil and criminal cases; it does not provide a breakdown of regular and non-regular matters. 

Rahman said that it was “reasonable to conclude that [the Chief] would not have ignored” any regular-non-regular breakdown of pendency “before taking a drastic step of freezing hearing in regular matters.” Interestingly, in his farewell ceremony earlier this month, former CJI Chandrachud confirmed that he had kept a close eye on the breakdown between regular and non-regular pending cases. Chief Justice Chandrachud said: “28,682 regular cases were pending in November 2022, today 22,000 regular cases are pending because every Wednesday and Thursday every bench of the Supreme Court has put their head down and disposed of old cases.” This suggests a high proportion of pending matters may be non-regular. 

Sailakwal told me that, from the point of view of clearing pendency, the system under CJI Lalit was the most effective. Back then, fresh matters, transfer petitions and regular matters would be heard every day. But he is willing to give CJI Khanna’s new system a chance: “We can’t say right now, but it may decrease the pendency of these [non-regular] matters, which are pending from such a long time and the issues are very small in all those cases.”

“Listen to us when it comes to listing”

In CJI Chandrachud’s final months at the Court, the listing process was a bone of contention. In August 2024, the Supreme Court Advocates on Record Association wrote a comprehensive letter highlighting concerns about uncertainty and delays in the listing process. The possibility of the Registry exercising discretion in the process has also raised alarm bells. Since then, advocates have been pressing for more open communication with the court to resolve the issues.

A couple of weeks into CJI Khanna’s tenure, the anxiety over opaque decision-making has not gone away. “It is hoped that the CJI will not act unilaterally,” Kapoor said, “He is the leader amongst the judges but he alone does not represent the institution. It is high time that all important decisions on the administrative side, including about roster and listing, are taken by a collegium or a group of judges.” Kapoor further suggested that Bar Associations should be included in decision-making.

“The AoR community is seriously aggrieved right now,” Kapoor said. “A normal matter which is not high-profile takes an average of a month these days to be listed. The Registry is under-staffed and over-burdened.”

While Rahman echoed the view that the Court should engage the Bar, he was of the opinion that the consultation should not be done through the Bar Associations, because of the “many considerations that come into play.” Instead, he suggested that seniors with substantial experience practising in courts of various chief justices should be consulted. For instance, an experienced advocate may be able to recall how a particular Chief Justice “in the 1990s did this.”

Move for a time limit for listing miscellaneous matters lauded

On Tuesday, the Court issued another administrative circular directing the listing of miscellaneous matters not more than ten days after the expiry of the period given by the Court for listing (“one/two/three weeks and so on”). This notification is as much a concession to the Bar as it is an instruction to the Registry.

Advocates have long complained that the Registry, by general practice, does not list matters according to the Court’s directions.

In a previous story about listing woes, Shivam Singh, a Delhi-based advocate, had told my colleague Spandana that the matter “just goes into a bit of a blackhole.” Kapoor told me that this was one of the main reasons that CJI Chandrachud used to allow mentioning requests, either through oral mentioning in court or by email.

There is a feeling that Tuesday’s circular was much-needed housekeeping. “There was no clear directive to this effect earlier,” Kapoor told me. “Because it is there in the Supreme Court’s [circular], so it should be self-implemented.”

Yet, among the AoR community, there is a pronounced sense of waiting and watching. There is a general feeling within the Bar that the Registry is severely understaffed and overworked. With a Registry that struggles to keep up, just how far Chief Justice Khanna will be able to carry his listing reforms remains to be seen.