In the context of increasing backlog of cases and inordinate delay in the administration of justice, four Zonal Benches of the Supreme Court have become imperative. The Supreme Court should deal with only constitutional cases such as interpretation of the Constitution, matters of national importance such as references made by Zonal Benches and inter-state disputes on land, electricity and water.
Justice A.R. Lakshmanan (retd) IN THE TRIBUNE CHANDIGARH
IS there a need for creating a constitutional court that shall be dealing exclusively with matters of constitutional law? Yes. The first country to establish a constitutional court was Austria. At present, 55 countries have separate courts dealing with constitutional matters, including the Central African Republic, France, Germany, Italy, Norway and the US. In India, the Tenth Law Commission (95th Report) in 1984 suggested the constitutional division to specifically deal with constitutional matters, instead of having judicial review at present. Under Article 246 (1) by Entry 77, Parliament has the power to make such amendment for creation of court.As creation of separate constitutional courts would involve structural changes of very extensive and complex nature, the Eleventh Law Commission recommended constitutional division instead of constitutional courts (Report No. 125).
The huge backlog of cases in courts and delay in the administration of justice have prompted scholars and experts to argue for the establishment of constitutional and cassation courts as they may ease the work of the present Supreme Court. The Parliamentary Standing Committee of the Rajya Sabha on Law and Justice, in its 28th Report dealing with the Supreme Court (Number of Judges) Amendment Bill, 2008, has endorsed this.
In India, the ratio of judges versus population is 10.5 per cent per one million whereas it is 107 per million in the US and 75 per million in the UK. In India, the figure is 12 to 13 judges per million. It is thus evident that the ratio between judge strength and the population is hopelessly low. The same is apparent in the Supreme Court as well where the ratio works out to 1:112. The situation is critical if one takes into consideration the ratio of both the institution of new cases and the pending arrears which comes to 1:1854 (approximately).
There is an imperative need for increasing the Bench strength of the Supreme Court to clear the backlog of pending cases and to promote future developmental programmes in the judiciary and thereby minimise delays in the justice delivery system and promote speedy justice which is the avowed goal of the Constitution. But it is equally important that mere increase in number of judges might not help improve the system.
In an article, Dr P.C. Alexander, former Governor of Maharashtra and Tamil Nadu, threw considerable light on the malaise that ails the judicial system. He feels that increasing the number of judges, promptness in filling up the vacancies and improving working facilities are all very important for the efficiency of the judicial system, but these alone cannot be an adequate solution to the pendency problem.
There are many measures which the judiciary can take without waiting for additional financial support from the government, but very little effective action has been taken on these by the judiciary and they continue to cause delays in the disposal of cases. They include laxity shown by the courts in matters like production of witnesses on the dates posted for their examination, granting requests for adjournments of cases without good reasons, inordinate delays in giving copies of documents, allowing lengthy arguments by the advocates, and the practice of judges themselves writing unnecessarily long judgements.
The liberal attitude of the courts in entertaining appeals from the lower courts has also contributed to the steady increase in the backlog. Those who have the financial resources go on appeal on the decisions of the lower courts to the next higher court, and finally to the Supreme Court, even when no interpretation of the law may be involved. When the accused are influential politicians or rich businessmen, the cases can go on endlessly, bringing down in this process the reputation of the judicial system itself. If appeals can be limited to a small number, say one or two, depending on the nature of the crime, it can help a great deal in reducing pendency.
The practice of some judges in delaying the delivery of judgements for several months, and in certain cases, even till they retire from service, has been another cause of delayed justice. Though the maximum time-limit of one month has been considered reasonable for the delivery of judgement, there is no mechanism for enforcement of any time-limit, and this malpractice on the part of some judges thus goes on unchecked. Again, no serious attempts are being made by the judiciary to make use of the provisions in the Constitution for engaging the services of retired judges both at the Supreme Court and at the High Courts for temporary periods for help in clearing the backlog of cases.
We have tried some of these measures but the result appears to be far from satisfactory. The entire judicial set-up will have to be overhauled and refurbished to expedite justice. It is quite often argued that the present pattern of working of the Supreme Court needs to be revised. The indiscriminate acceptance of appeals on trivial issues of facts by the Supreme Court quite often overloads itself. In fact, only important issues need be litigated in the Supreme Court.
More important, the present situation makes the Supreme Court inaccessible to a majority of people in the country. In its Second (2004), Sixth (2005) and Fifteenth (2006) Reports, the Parliamentary Standing Committee on Law and Justice has suggested that for speedy justice, Benches of the Supreme Court should be established in the Southern, Western and North-Eastern parts of the country. In its Twentieth (2007), Twenty-Sixth (2008) and Twenty-Eighth (2008) Reports, the Standing Committee suggested that a Supreme Court Bench should be established at least in Chennai on trial basis as this would immensely help the poor who cannot travel from their native places to New Delhi.
The Committee is not satisfied with the persistent opposition for establishing Benches of the Supreme Court in other parts of the country without giving any convincing reasons or justification thereof. It endorses its earlier view that the Supreme Court Benches in other parts of the country would be of immense help to the poor. It wanted the Union Ministry of Law and Justice to come forward with a necessary constitutional amendment to address this deadlock.
A feasible, workable and efficient system of judicial administration could be established if it were to be divided into four zones/regions, namely, Northern Zone Bench to be established in Delhi dealing with the litigation of Uttar Pradesh, Uttarakhand, Rajasthan, Punjab, Haryana, Madhya Pradesh, Chhattisgarh and Himachal Pradesh; Southern Bench in Chennai or Hyderabad to tackle litigation in Kerala, Tamil Nadu, Andhra Pradesh, Karnataka and the Union Territories of Puducherry and Lakshadweep; Eastern Zone Bench in Kolkata dealing with the litigation of West Bengal, Bihar, Orissa, Jharkhand, Assam and the Northeastern States including Sikkim and the Union Territory of Andaman and Nicobar and Dadra etc; and Western Zone Bench to be established in Mumbai dealing with the litigation in Maharashtra, Gujarat, Goa and the Union Territories of Dadra and Nagar Haveli, etc.
The said Benches shall act as Cassation Benches to deal with appeals from a High Court in the particular region. The apex court could, then, deal with constitutional issues and other cases of national importance on a day-to-day basis since the accumulated backlog of cases would go to the respective zones to which they pertain.
If a Constitution Bench is set up in New Delhi, the apex court would be relieved of the backlog of accumulated cases which are causing a burden and continuous strain on its resources. Since the accumulated cases pertaining to a particular region would be dealt with by the respective Zonal Bench, the apex court would be free to deal with only constitutional cases such as interpretation of the Constitution, matters of national importance such as references made by the Zonal Benches to larger Benches due to conflict of authority, cases where the interests of more than one State are involved such as inter-state disputes on land, electricity, water, etc., references for advisory opinion made under Article 143 of the Constitution, references made under Article 217, Presidential and Vice-Presidential elections, suits between two or more states, etc. This list is merely illustrative and not exhaustive.
All public interest litigations (PILs) from any part of India should be decided by the apex constitution court so that there are no contradictory orders issued and also to arrest the mushrooming of cases.
The advantage of setting up of Benches is that this can be made effective since it is a matter within the purview and jurisdiction of the Supreme Court under the Supreme Court Rules. If Article 130 of the Constitution is liberally interpreted, no constitutional amendment may be required for the purpose — action by the Chief Justice of India with the President’s approval may be enough.
Moreover, under Article 130, the Chief Justice as Personna Designate is not required to consult any other authority. Only the President’s approval is necessary. However, in case this liberal interpretation of Article 130 is not feasible, Parliament may enact legislation.
If the judge-strength of each Zonal Cassation Bench is confined to two judges, each zone will require only six judges implying that only 24 judges will be required for all the four zones to constitute Cassation Benches all over India. The other judges will be available in the apex court, which will have a Constitution Bench in New Delhi working on a regular basis.
The concept of having a Constitution Bench along with a Cassation Bench is nothing new. The democratic transition that occurred in many parts of the world in the late 20th century resulted in the proliferation of courts with constitutional adjudication and powers of cassation being exercised simultaneously. There is a blend of functions of judicial review usually by the constitutional court or constitutional tribunal and also the exercise of powers of cassation.
Italy, for instance, has a constitutional court with the sole power of constitutional review and a Supreme Court of Cassation with the power to review the ordinary courts’ decisions for consistency with the law. Egypt also maintains a Court of Cassation that monitors the uniformity of lower court fidelity to the law but only its Supreme Constitutional Court has the authority to declare laws unconstitutional and to determine and rule upon legislative intent. Portugal’s Constitutional Tribunal has the greatest jurisdiction exercising both concrete review of lower court decisions and abstract review of all laws and legal norms. Other countries which blend the functions of judicial review and cassation or the review of lower court decisions are Ireland, the US and Denmark.
A Constitution Bench should be set up in New Delhi to deal with constitutional and other allied issues. This would help reduce the backlog of cases in the Supreme Court.
Four Cassation Benches should be set up in the Northern Zone in New Delhi, Southern Zone in Chennai, Eastern Zone in Kolkata and Western Zone in Mumbai to deal with all appellate work arising out of the orders and judgements of the High Courts of the particular region.
Since the respective Zonal Benches will handle the accumulated cases pertaining to a particular region, the Supreme Court would be free to deal with only constitutional cases such as interpretation of the Constitution, references made by the Zonal Benches to larger Benches due to conflict of authority or cases such as inter-state disputes on land, electricity, water, etc., references for advisory opinion under Article 143 and so on.
If Article 130 of the Constitution cannot be stretched to make it possible to implement the recommendations, Parliament should enact a suitable law for this purpose.
The writer is a former Supreme Court Judge and Chairman, Law Commission of India
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