ADVOCATES ENTITLED TO APPEAR IN MAINTENANCE TRIBUNALS; BAR ON LEGAL REPRESENTATION UNCONSTITUTIONAL: KERALA HIGH COURT - The Daily Guardian
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ADVOCATES ENTITLED TO APPEAR IN MAINTENANCE TRIBUNALS; BAR ON LEGAL REPRESENTATION UNCONSTITUTIONAL: KERALA HIGH COURT

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In a groundbreaking judgment which is also a grand victory for advocates, the Kerala High Court has just recently on March 30, 2021 in a latest, learned, laudable and landmark judgment titled Adv KG Suresh vs The Union of India and 3 others in WP(C)No. 21946 of 2011(S) has declared as unconstitutional the bar on lawyers representing parties in matters before the Maintenance Tribunals constituted under the Maintenance Welfare of Parents and Senior Citizens Act, 2007 (Maintenance Act). It also rightly held that, “Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961.” A two Judge Bench of Kerala High Court comprising of Chief Justice S Manikumar and Justice Shaji P Chaly pronounced this pathbreaking judgment thereby allowing a writ petition filed in 2011.

To start with, the two Judge Bench of Chief Justice S Manikumar who has authored this notable judgment for himself and Justice Shaji P Chaly of the Kerala High Court sets the ball rolling by first and foremost observing in para 1 that, “Petitioner, claiming to be an Advocate practicing in the Pathanamthitta courts, has filed the instant writ petition, seeking the following reliefs:-

“(i) Issue a writ, order or direction to declare that Section 17 of the Maintenance & Welfare of parents and Senior Citizens Act, 2007, is ultra vires the Constitution, and void, repugnant to Section 30 of the Advocates Act, 1960.

(ii) Issue a writ of mandamus or any appropriate writ, order or direction, declaring the right of the Advocates / Legal practitioners to represent the either parties before the Tribunal / Appellate tribunals / court, constituted under Act 56 of 2007.””

To put things in perspective, the Bench then enunciates in para 2 that, “Facts leading to the filing of this writ petition are that petitioner has challenged the validity of Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, (Act 56 of 2007). He has contended that the said provision is against the authority or right conferred by Section 30 of the Advocates Act, 1961, which speaks about the right of advocates to practice.”

To be sure, the Bench then points out in para 3 that, “Petitioner has further stated that Government of India have notified Section 30 of the Advocates Act, 1961, with effect from 15.06.2011, which according to him, is a subsequent legislation and overrides Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. According to him, by virtue of Section 30 of the Advocates Act, Section 17 of the Act 56 of 2007 is invalid.”

While elaborating further, the Bench then elucidates in para 4 that, “Petitioner has further stated that as per Section 30 of the Act, every advocate shall be entitled, as of right, to practice before any Court, Tribunal or person, legally authorised to take evidence. The said provision also enables the lawyers to practice in the courts across the country, irrespective of their enrollment in any Bar Council, without the need to transfer licence to their desired States.”

Furthermore, the Bench then states in para 5 that, “Referring to Sections 6(4) and 8(2) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, petitioner has stated that the Tribunal is empowered to take evidence and conduct inquiry, and, therefore, an Advocate and Legal Practitioner, is entitled as of right to appear before the Tribunal.”

Going ahead, the Bench then reveals in para 6 that, “Petitioner has further stated that the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, came into effect from 31.12.2007. By virtue of Section 1(3) of the Act, 2007, it came into force in the State of Kerala with effect from 24.09.2008, as per Notification SRO 999/2008.”

Be it noted, the Bench then observes in para 7 that, “Advocates for the last so many years have been claiming the right to practice in all the courts, as of right, and have been agitating for the enforcement of Section 30 of the Act in that behalf. Almost 50 years have passed since the Act was enacted and the provisions have been brought into force only w.e.f 15.06.2011.”

Seen in this light, the Bench then points out in para 8 that, “In this context, petitioner has relied on the decision in Aeltemesh Rein v. Union of India and Others [AIR 1988 SC 1768], wherein a writ of mandamus was issued to the Central Government, to consider, within six months, whether Section 30 of the Advocates Act, 1961 should be brought into force or not. The Hon’ble Supreme Court, however, held that it was the discretion of the Central Government to bring this Section into force by issuing a notification in that behalf.”

As a corollary, the Bench then puts forth in para 9 that, “Petitioner has further stated that pursuant to the abovesaid direction of the Hon’ble Apex Court, rendered in the year 1988, Government of India have brought Section 30 of the Advocates Act, 1961, in force only on 15.06.2011, and therefore, advocates can practice as a matter of right in all Courts and Tribunals.”

Significantly, the Bench then quite lucidly mentions in para 44 that, “Section 30 of the Act speaks about rights of advocates to practice and the same reads thus:

“30. Right of advocates to practise.― Subject to the provisions of this Act, every advocate whose name is entered in the 3 [State roll] shall be entitled as of right to practise throughout the territories to which this Act extends, ―

(i) in all courts including the Supreme Court;

(ii) before any tribunal or person legally authorised to take evidence; and

(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.””

No less significant is what is then observed in para 45 that, “In exercise of the powers conferred by sub-section (3) of Section 1 of the Advocates Act, 1961, the Central Government have appointed 15th day of June, 2011 as the date on which Section 30 of the said Act shall come into force.”

What is also worth noting is that it is then most rightly and remarkably observed in para 50 that, “Contention of the learned counsel for the petitioner and the Bar Council of India, that the Tribunals are clothed with the powers of Civil Courts, for the purpose of taking evidence, enforcing attendance, production of evidence, and that denial of legal assistance to the parties before the Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, requires consideration, for the reason that parties to the lis are not expected to know the nuances of law, evidence, both oral and documentary , to be produced.”

Needless to say, it is then underscored in para 51 that, “Legal aid is a constitutional right guaranteed under Article 21 of the Constitution of India and legal assistance cannot be confined only to legal advice, which, in our view, would not be sufficient, in the interest of the parties.”

More significantly, the Bench then minces no words to observe in para 52 that, “Contention of the Union of India, that since the main intention of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is to provide speedy and cost effective mechanism to the parents/senior citizens, to claim maintenance from their children/grandchildren/relatives, as the case may be, and participation of advocates in the proceedings will jeopardize this objective, cannot be accepted, for the reason that mere engagement of a lawyer would not delay the process of adjudication of a dispute before the Maintenance Tribunal.”

Adding more to it, the Bench then observes in para 53 that, “Cost effective mechanism, cited as one of the reasons for denying legal assistance, also cannot be accepted, for the reason that if any litigant is enable to engage a lawyer of his choice, Legal Services Authority, constituted under the Legal Services Authorities Act, 1987, comes into the aid of such litigant, by engaging a lawyer to assist him.”

Simply put, the Bench then also makes it plainly clear in para 54 that, “Union of India, cannot undermine the role of the Legal Services Authority, and the lawyers engaged by them, to assist the litigants, in comparison to the lawyers to be engaged by the children/ grandchildren/ relatives, solely on the ground that they are financially in a better position to avail the services of the best advocates.”

Of course, the Bench then concedes in para 55 that, “True that the legislation, Maintenance and Welfare of Parents and Senior Citizens Act, 2007, has envisaged that the disputes and differences should be resolved amicably and in that context, laid emphasis on the role of a Conciliation Officer, nominated by the Tribunal, but he will not be a substitute for a lawyer.”

What’s more, the Bench then also makes it amply clear in para 56 that, “Contention of the Union of India, that the makers of the Act foresaw that engagement of legal practitioners to represent cases will prolong the matter and will be more of a harassment for the parents in their last phase of life as judgment will be delayed, is wholly unacceptable.”

Finally and far most significantly, the Bench then holds in para 57 that, “As Section 30 of the Advocates Act, 1961 has been brought into force from 15.06.2011, Advocates enrolled under the said Act have been conferred with an absolute right thereof, to practice before all the Courts and Tribunals. By virtue of Section 30 of the Advocates Act, 1961, coming into force from 15.06.2011, the restriction imposed is taken away and in such circumstances, Article 19 of the Constitution of India, which guarantees the freedom to practice any profession, enables the Advocates to appear before all the Courts and the Tribunals, subject to Section 34 of the Advocates Act, 1961. In the light of the above discussion and decisions, Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961 and thus, the petitioner is entitled for a declaration that he has a right to represent the parties before the Tribunal/Appellate Tribunal/Court, constituted under Act 56 of 2007. Accordingly, this writ petition is allowed.”

No doubt, this historic judgment is a victory not just of one or two advocates but of advocates as a whole because this will certainly benefit the entire class and not just one or two advocates only. It must be also mentioned here that the petitioner who is an advocate KG Suresh of Pathanamthitta instituted Public Interest Litigation in the year 2011 seeking a declaration that Section 17 was unconstitutional in light of the newly introduced Section 30 of the Advocates Act. Upon consideration of submissions, the Kerala High Court held that Section 30, being introduced and notified in 2011 had an overriding effect on Section 17 of the Maintenance Act. Of course, Kerala High Court thus clearly, cogently and convincingly holds that advocates are entitled to appear in Maintenance Tribunals and bar on legal representation is unconstitutional. Very rightly so!

Sanjeev Sirohi, Advocate

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SEBI v/s RIL : Review Petition Admitted

The present issue relates back to certain share transactions of RIL in 1994, whereby around 12 crore equity shares of RIL were “fraudulently” allotted to its promoters and group companies.

Tarun Nangia

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SEBI v/s RIL : Review Petition Admitted

The Supreme Court in the case Securities and Exchange Board Of India vs. Reliance Industries Limited & Ors observed and has allowed for listing of the instant petition in open court.

The bench comprising of the Chief Justice Of India U.U. Lalit, Justice J.K. Maheshwari and the Justice HimaKohli observed while considering the facts and circumstances of the case and on the submissions made by the counsel in the review petition. The bench deemed it appropriate to allowe the application filled for the listing of the instant petition in open court.

Background of the Case:

The present issue relates back to certain share transactions of RIL in 1994, whereby around 12 crore equity shares of RIL were “fraudulently” allotted to its promoters and group companies. In 2020, a complaint was filled by S Gurmurthy, the regulatory initiated probe into the alleged irregularities. An opinion was sought by SEBI of former Supreme Court judge Justice BN Srikrishna twice and also the opinion of a Chartered Accountant named YH Malegam.

It was requested by the RBI for disclosure of these opinions and related internal documents. The RIL filed a writ petition before the Bombay High Court, when SEBI turned the request and the same was dismissed in February 2019.

A Criminal complaint was lodged by SEBI in 2020 before Special Judge, Mumbai against RIL alleging offences punishable under SEBI Act and Regulations. The same was rejected by the Court as time-barred. A revision petition was filled by the regulatory before the Bombay High Court challenging the dismissal of the complaint. However, in SEBI’s revision petition, RIL filed an interlocutory application seeking the disclosure of the documents. The High Court adjourned RIL’s application on March 28, 2022 by stating that it can be considered only along with the main revision petition. Therefore, this led to filling of the special leave petition before the Supreme Court.

On September 29, 2022., the matter was circulated in the Supreme Court. Accordingly, the court listed the review petition for next hearing on 12.10.2022.

Case Title: Securities and Exchange Board Of India vs. Reliance Industries Limited & Ors
Case No: W.P.(C) No. 250 of 2022 & W.P.(C) of 1167 of 2022.
Coram: Chief Justice Of India U.U. Lalit, Justice J.K. Maheshwari, Justice Hima Kohli
Date Of Order: 29th Day of September, 2022.

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Supreme Court: All Women Are Entitled To Safe And Legal Abortion, Distinction Between Married And Unmarried Women Unconstitutional

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Supreme Court: All Women Are Entitled To Safe And Legal Abortion, Distinction Between Married And Unmarried Women Unconstitutional

On Thursday, the Supreme Court in the case X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi observed and has declared that unmarried women are also being entitled for seeking abortion of pregnancy in the term of 20-24 weeks arising out of a consensual relationship.
It was ruled by the Court that exclusion of unmarried women who conceive out of live-in relationship from the Medical Termination of Pregnancy Rules is unconstitutional.
The court stated while noting that the 2021 amendment to the Medical Termination of Pregnancy Act does not make a distinction between married and unmarried women, all women are entitled to safe and legal abortion.
In the present case, the issue relates to whether the exclusion of unmarried woman, whose pregnancy arises out of consensual relationship, from Rule 3B of the Medical Termination of Pregnancy Rules is valid. It was mentioned in Rule 3B the categories of woman whose pregnancy in the duration of 20-24 weeks can be terminated.
However, the distinction between married and unmarried women is unsustainable.
The bench comprising of Justice Chandrachud read out the excerpts of the judgment that if Rule 3B(c) is understood as only for married women, it would perpetuate the stereotype that only married women indulge in sexual activities. Thus, this is not constitutionally sustainable. It cannot sustain the artificial distinction between married and unmarried women. However, the women must have autonomy to have free exercise of these rights.
The Court added that the rights of reproductive autonomy give an unmarried women similar rights as a married women and the object of section 3(2)(b) of the MTP Act is in allowing woman to undergo abortion after 20 to 24 weeks. Including only married and excluding unmarried woman will be violative of Article 14 of the Constitution of India.
The Reproductive right part of individual autonomy
However, the foetus relies on the woman’s body to sustain and the decision to terminate is firmly rooted in their right of bodily autonomy. It will amount to an affront to her dignity, if the State forces a woman to carry an unwanted pregnancy to the full term.
The bench comprising of Justice D.Y. Chandrachud, Justice A.S. Bopanna and Justice J.B. Pardiwala in the case on August 23 had reserved judgment.
It stated that the law must be interpreted keeping in mind changing social mores
It was largely concerning the married woman, when the MTP Act was enacted in 1971 but as societal norms and mores change the law must also adopt. While changing the social mores must be borne in mind while interpreting provisions. It is indicated in social realities that the need to recognise legally non-traditional family structures.
The Judgment delivered on International Safe Abortion day.
A lawyer informed the bench that today happens to be the international safe abortion day, after the judgement was pronounced.
It was remarked by Justice Chandrachud, “We had no idea that this would coincide with safe abortion day. Thank you for informing us”.
Which are the categories of women to be included in Rule 3B?
(a) the survivors of sexual assault or incest or rape;
(b) the minors;
(c) the change of marital status during the ongoing pregnancy (divorce and widowhood);
(d) The women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];
(e) The mentally ill women including mental retardation;
(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such mental or physical abnormalities to be seriously handicapped; and
(g) The women with pregnancy in humanitarian settings or emergency or disaster situations as may be declared by the Government.
Accordingly, these categories were added in the MTP Rules by the Central Government following the 2021 amendment to the MTP Act, which raised the ceiling limit for termination of pregnancy.

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Bombay High Court: Limitation Period Starts After Affixing Signatures On GST Registration Cancellation Order

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Bombay High Court

The Bombay High Court in the case Ramani Suchit Malushte Versus Union of India and Ors observed and has held that the limitation period would start only after the affixing of signatures on the GST registration order of cancellation.
The Division bench comprising of Justice K.R. Shriram and the Justice A.S. Doctor observed and has stated that only on the date on which the signature of Respondent issuing authority was put on the order dated November 14, 2019, for the purpose of attestation and would time to file an appeal commence.
It was observed by the court that unless a digital signature is put by the issuing authority, the order will have no effect in the eyes of the law.
In the present case the petitioner/assessee assailed an order passed on August 2, 2021, but issued on August 4, 2021, by which the petitioner’s appeal was dismissed on the ground that it was not filed within the period of three months as it is provided under Section 107(1) of the CGST Act.
It was contended by the petitioner that the order in the original dated 14.12.2019, which was in the appeal filed before the respondent, had not been digitally signed. However, the said order was not issued in accordance with Rule 26 of the CGST Rules. Thus, the time limit for filing the appeal would begin only upon digitally signed orders being made available.
Further, it was specifically stated in the affidavit in reply that the show cause notice was digitally signed by the issuing authority, but when it refers to the order in the original dated 14.12.2019, there was total silence about any digital signature being put in by the issuing authority.
It was contended by the department that the petitioner could not take the stand of not receiving the signed copy because the unsigned order was admittedly received by the petitioner electronically.
However, the Court observed that if the stand of the department has to be accepted, then the rules which prescribe specifically that a digital signature has to be put in place will be rendered redundant.
Accordingly, the court while overturning the order, returned the appeal to the respondent’s file and instructing him to consider the appeal on its merits and issue whatever order he deemed appropriate in accordance with the law.

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Supreme Court: Speaker Can’t Deny Pension & Other Benefits To MLAs While Disqualifying Them Under 10th Schedule

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Supreme Court: Speaker Can’t Deny Pension & Other Benefits To MLAs While Disqualifying Them Under 10th Schedule

The Supreme Court in the case Gyanendra Kumar Singh and Ors. Versus Bihar Legislative Assembly Patna and Ors observed and has held that under the Xth Schedule of the Constitution, the Speaker of a Legislative Assembly does not have power to deny pension and other benefits available to a former MLA while deciding a disqualification petition against him.
The bench comprising of Chief Justice of India UU Lalit, Justice Ravindra Bhat and Justice JB Pardiwala observed while considering a set of appeals by then four JD(U) MLAs – Neeraj Kumar Singh, Gyanendra Kumar Singh, Rabindra Raiand Rahul Kumar, who were not only disqualified but was also denied for pensionary benefits on November 11, 2014 by the 15th Bihar Legislative Assembly Speaker.
The bench observed that in our our considered view, the Speaker was not within his jurisdiction to issue such directions (other than the direction of disqualification). Therefore, the court set aside the directions issued by the Speaker in Paragraph 28 of the order. The court have not gone into the question of disqualification and all questions are left open.
It was observed that since the 15th Legislative Assembly is no longer functioning, and the 17th Legislative Assembly is currently going on, the Court observed that it need not go into the basic issue that whether the order of disqualification issued by the speaker of the Assembly was correct or not.
According to the bench, before the court, the only question was to consider the effect of the directions issued by the Speaker in his disqualification order (apart from the disqualification) i.e., denying pension and other benefits.
During the hearing, the counsel, Senior Advocate Devdutt Kamat appearing for the appellants submitted that the directions issued by the Speaker on November 1, 2014 went beyond the scope of his powers.
The Counsel, relied on the Supreme Court decision in the case Shrimanth Balasaheb Patil vs Hon’ble Speaker Karnataka Legislative Assembly, the operative part of which reads that in exercise of his powers under the X schedule, the Speaker does not have the power either to indicate the period for which the person would stand disqualified or to bar any person from contesting in election.
Adding to it, the court asked the opposing counsel that, where does the Speaker get the power that pension can be withheld?
It replied, “They have been disqualified and that the same consequences flow in”.
The Court orally observed that we need not go into the issue of disqualification on the ground that whatever is there, whatever happened in Rome, happened there and once you come out and it’s not there…It’s not a permanent disqualification or a debarment or something. All it has been said by him is that the pension need not be stopped.
The Counsel, Kamant added, “Pension and other emoluments”.
It was stated by the speaker that the above 4 Hon. Members will not get any facility and that is not sanctioned.

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Chhattisgarh High Court Clarifies: Writ Petition Can Be Dismissed Even After Admission; Alternate Remedy

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Chhattisgarh High Court Clarifies: Writ Petition Can Be Dismissed Even After Admission; Alternate Remedy

The Chhattisgarh High Court in the case Mangali Mahinag v Sushila Sahu observed and has made it clear that there is no such rule that a writ petition, once admitted and it cannot be dismissed on the ground of availability of an alternative remedy.
The bench comprising of Justice Arup Kumar Goswami and Justice Deepak Kumar Tiwari observed that as proposition of law it cannot be countenanced that once a writ petition is entertained and admitted and the same cannot be dismissed on the ground of availability of the alternative remedy at the time of hearing.
Against the order of a single judge, the instant writ appeal was preferred wherein dismissing the writ petition filed by the Appellant on ground that there was an alternative remedy available.
It was observed that both the Appellant and Respondent had applied for the post of ‘Angwanwadi Karyakarta’. However, the petitioner was declared successful in the selection process, the Collector had set aside his appointment on an appeal made by the Respondent. Aggrieved with the same, the Petitioner had approached the writ court.
After admitting the petition, the Writ court relegated the Petitioner to avail alternative remedy. Thus, this appeal.
The petitioner relied on the case Durga Enterprises (P) Ltd. & Anr v. Principal Secretary, Govt. of UP & Ors., wherein the Supreme Court had held that the High Court having entertained the writ petition, in which pleadings were also complete, ought to have decided the matter on the merits instead of relegating the parties to a civil suit.
On the other side, it was argued by the State that there is no proposition in law that once a writ petition is admitted, the petitioner cannot be asked to avail alternative remedy. Further, it was submitted by the respondent that the facts and circumstances of each individual case will determine whether the Court would decide the writ petition or the petitioner would be asked to avail alternative remedy.
It was concurred by the High Court with the State’s submissions. The Court observed that the findings in Durga Enterprises (supra) were based on the fact that the writ petition was pending for a long period of 13 years.
Similarly, the court observed in the case State of UP v. UP Rajya Khanij Vikas Nigam Sangharsh Samiti that the issuance of rule nisi or passing of interim orders is a relevant consideration for not relegating the petitioner for availing an alternative remedy if it appears to the High Court that the matter could be decided by a writ Court.
In both the case, it was observed by the High Court that the Supreme Court did not lay down as a proposition that invariably whenever a writ petition is admitted, the matter has to be heard on merit and the writ Court cannot exercise discretion to relegate the petitioner to avail an alternative remedy.
Accordingly, the Court dismissed the writ appeal.

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SC to begin hearing 300 oldest cases from Oct

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NO RIFT, ALL JUDGES ARE ON THE SAME PAGE: CJI U.U. LALIT

In an effort to resolve pendency of cases in the Supreme Court, Chief Justice of India Uday Umesh Lalit issued orders on Wednesday asking that 300 of the oldest cases from October be listed for hearing.

The oldest such pending case dates back to 1979, and over 20 cases are from the period of 1990 to 2000.

The notification released by the Registry of the Supreme Court on Wednesday said, “Take notice that 300 oldest after notice matters of which list is appended below are likely to be listed before the courts on non miscellaneous days beginning Tuesday, October 11, 2022.”

The cases that will be listed also include a PIL that was filed in 1985 by lawyer and environmental activist MC Mehta and kept languishing in the Supreme Court’s records for almost 37 years. Most of the cases have either lost their significance as a result of the passage of time or because the immediate issue they attempted to address in their petitions was resolved long ago. However, these petitions persisted in the SC docket, increasing the Supreme Court’s statistics on cases still pending.

As of September 1, the Supreme Court has 70,310 cases outstanding, according to information posted on the court’s website.

The Chief Justice of India’s most recent ruling is a continuation of his efforts to clear out old cases and Constitution bench cases from the court system. Every Tuesday, Wednesday, and Thursday since becoming CJI on August 27, Justice Lalit has scheduled normal issues, which are older cases that have been lingering for more than ten years, in the morning session while the second half of the day is reserved for hearing of new matters.

To handle the majority of the 493 Constitution Bench cases (including connected cases) in the top court, CJI Lalit also formed five separate Constitution Benches, each with five judges. Of these, 343 are five-judge bench matters, 15 are seven-judge bench matters, and 135 are nine-judge bench matters.

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