Towards a true Constitutional Court
K.K. Venugopal In The Hindu April 30 2009
The creation of four regional Courts of Appeal as final appellate courts, while restricting the Supreme Court of India to its true function as a Constitutional Court, has become imperative.
The importance of decentralisation of the administration of justice as a means of realising access to judicial institutions has been argued strongly by no less a distinguished jurist than V.R. Krishna Iyer, a former Judge of the Supreme Court of India (“Questions of Judicial Access,” The Hindu, February 3, 2010). Although Justice Krishna Iyer has advocated the setting up of four regional benches of the Supreme Court, I believe that the establishment, instead, of four regional Courts of Appeal (along the lines I suggested in the recent R.K. Jain Memorial Lecture) would be a more effective means to ensure that the poorest litigant from the farthest corner of India has inexpensive and ready access to justice. My proposal to create four regional Courts of Appeal as final appellate courts, while restricting the Supreme Court of India to its true function as a Constitutional Court, appeared to be acceptable to Chief Justice of India K.G. Balakrishnan, who was the Chief Guest at the Lecture (“I Can’t Let Apex Court Split: Chief Justice,” DN A, January 31, 2010).
Over the last six decades, the Supreme Court’s extraordinary power has manifested itself in the form of judgments encompassing every sphere of the nation’s activity. No grievance has been too insignificant to attract the court’s palliative and curative jurisdiction. Inspired by the desire to give true meaning to the Constitution’s promise of justice, liberty and equality for all, no litigant has been turned away by the Supreme Court, and there is virtually no area of human endeavour in regard to which it has not exercised its jurisdiction, original or appellate.
There is, however, a price to be paid for the court’s metamorphosis into a powerhouse of judicial activism: the problem of mounting arrears. As of September 2009, there were no less than 53,221 cases pending before the Supreme Court. Many would say that the writing was on the wall as early as in the 1970s. Arrears in the Supreme Court had leaped from 680 cases in 1950 to over 100,000 by 1989. The pendency of cases came down to 19,000 in 1997 due, in large part, to the manner in which petitions and interlocutory applications came to be numbered together. There has, however, been a worrying 150 per cent increase in total pendency between 1997 and 2009. In my view, this calls for a reassessment of the normative and constitutionally mandated role of the Apex Court. I am not convinced that merely augmenting the number of judges in the Supreme Court will solve the problem of arrears. On the contrary, there is good reason to believe that expanding the capacity of the court may aggravate rather than alleviate the inefficiencies in the current system.
A cursory glance at the Supreme Court’s Practice and Procedure Handbook will reveal how far the court has strayed from its original character as a Constitutional Court and gradually converted itself into a mere court of appeal which has sought to correct every error it finds in the decisions of the 21 High Courts and numerous Tribunals from which appeals lie to it. The jurisdiction of the Supreme Court may now be invoked in relation to matters falling within any of 45 categories listed in the Practice and Procedure Handbook. These include the entire gamut of routine cases involving labour law, the rent act, direct and indirect taxes, acquisition of land, service law, criminal law, family law, and so on. These 45 heads further have 140 sub-categories under which the court may be called upon to exercise its appellate jurisdiction. For example, there are 22 sub-categories under service matters alone and 35 sub-categories under indirect tax matters. Under family law matters, the court may be called upon to decide cases involving divorce by mutual consent, restitution of conjugal rights, child custody, adoption, minority and guardianship, alimony cases, and so on.
Surely, however generous one may be in seeking to render justice to all, it will be obvious to anyone that if an Apex Court attempts to adjudicate all such cases, it will defeat the great purpose for which the court was established under our constitutional system. In such a scenario, it necessarily has to accumulate vast arrears over a period of time, which will be impossible for it to clear in any foreseeable future. According to me, this is a self-inflicted injury and the cause of the malaise which has gradually eroded the confidence of litigants in the Apex Court, mainly because of its failure to hear and dispose of cases within a reasonable time-frame.
The effort, then, in the words of Justice K.K. Mathew, a former Judge of the Supreme Court, must be to voluntarily cut the coat of jurisdiction according to the cloth of the importance of the question, and not to expand the same with a view to satisfying every litigant who has the means to pursue his cause. I do not mean to imply that the Supreme Court should be the sole preserve of the wealthy or well-connected. Rather, it is my view that the cause of justice and the interests of the litigant public would be best served if the court entertains only those cases which measure up to the significance of national or public importance. It will be my thesis, for reasons to be stated presently, that cases which do not raise questions of national or public significance should be finally decided by intermediate courts which are to be created by an amendment to the Constitution.
Previous attempts to tackle arrears by making additions to the Bench have proven to be unsuccessful. The original strength of eight judges in 1950 has progressively been increased by amendments to the Supreme Court (Number of Judges) Act of 1956, to 11 in 1956, 14 in 1960, 18 in 1977, 26 in 1986 and 31, today. It is against this backdrop that I would suggest the creation of four regional or zonal Courts of Appeal that would absorb the 140 categories of cases spanning matrimonial, rent control, labour, service, land acquisition and other matters entertained by the Supreme Court today. These cases would belong to the exclusive jurisdiction of the Courts of Appeal that would be established in the four regions of the country. The chartered High Courts of Bombay, Calcutta and Madras, and additionally, the High Court of Delhi, could themselves well be the seats of these Courts of Appeal which would be manned by judges of the same calibre as the judges who would otherwise be elevated from the High Courts to the Supreme Court. The age of retirement of the Judges of the Courts of Appeal would be 65 as, logically, they would need to have a higher retirement age than Judges of the High Court. Correspondingly, the age of retirement of Supreme Court Judges may have to be enhanced to 68 or even 70 years as is common in countries like Australia and Canada. The Supreme Court would then be left with only those cases which would fall within the jurisdiction vested in it by the framers of the Constitution and covering essentially the following matters:
1. All matters involving substantial questions of law relating to the interpretation of the Constitution of India or matters of national or public importance;
2. Settling differences of opinion on important issues of law between High Courts or between Courts of Appeal;
3. Validity of laws, Central and State;
4. After the Kesavananda Bharati case, (1973) 4 SCC 217, the judicial review of Constitutional Amendments;
5. Resolving conflicts between States and the Centre or between two States, as well as the original jurisdiction to dispose of suits in this regard; and
6. Presidential References under Article 143 of the Constitution.
I would conceive that the Constitution would be amended by adding Article 136A, whereby the regional Courts of Appeal would exercise the powers which were hitherto being exercised by the Supreme Court under Article 136 of the Constitution. This means that the Courts of Appeal would finally decide all cases arising from the High Courts relating to the 140 sub-categories mentioned earlier, without any further appeal lying to the Supreme Court. If, however, any question arises before a Court of Appeal which would fall within the newly carved-out jurisdiction of the Supreme Court as elaborated above, it would refer the same to the Supreme Court for decision. Similarly, I would omit Article 32 from the original jurisdiction of the Supreme Court. This means that actions alleging breaches of fundamental rights would be brought before any of the Courts of Appeal instead of the Supreme Court which would only exercise its appellate jurisdiction in such cases if questions are presented whose resolution will have immediate importance far beyond the particular facts and parties involved.
( K.K. Venugopal is a Senior Advocate, Supreme Court of India. This is the first part of a two-part article.)