IS IT THE TIME TO HAVE FOUR ADDITIONAL BRANCHES OF THE SUPREME COURT?
Author: Suraj T.N., III year of B.Com.,LL.B. from Faculty of Law, SRMIST
The Supreme Court of India is the guardian of the Indian Constitution.[i] It protects and upholds the rights and liberties of people. The Supreme Court also ensures that the constitution prevails over every other authority in the country.[ii]The Supreme Court, being the apex legal institution[iii], has a wide range of jurisdiction to secure justice. Apart from having original[iv] and appellate jurisdiction[v], it also has the power to admit leave for appeals under Article 136.[vi] The court also has advisory jurisdiction[vii]and the power to do complete justice by Article 142[viii]. Being the court of record[ix], it can also take Suo moto cognizance and initiate contempt proceedings.
THE PROBLEMS MAIMING THE SUPREME COURT
The Supreme Court is not obliged to hear petty matters or matters that do not involve a substantial question of law or a matter that is not of general/ public importance. However, a consensus among stakeholders that there has been a severe backlog of cases in the Supreme Court because it taking up all sorts of cases has become profound in recent years.[x]Despite that, there has also been the problem of many people not being able to approach the Supreme Court.
The Supreme Court has unfortunately been reduced to a regular court of appeal, which has been hearing disputes about commercial, taxation and service matters. On the other hand, the number of constitutional matters it has heard has steadily declined.[xi] The number of Special Leave Petitions (hereinafter referred to as ‘SLPs’) accepted by the court has also raised eyebrows. It is well-established that SLPs must be admitted only when exceptional and special circumstances exist[xii], but the court has accepted umpteen number of SLPs that are not significant.
This change in the character of the Supreme Court has gone against the purpose for which it was established by the constitution. This has also highlighted a dereliction of duty by the judiciary. So, how can a court that has been told to have a backlog of cases, still be accused of not being easily accessible to people? The answer is two-fold: poor analysis from the Supreme Court as to what cases it must take up, and its lack of proximity.
This issue has gained recognition in recent years. Several luminaries have also suggested what the apex legal institution can do to stop the issue from spiralling out of control. One of the major suggestions that have received a lot of backing is the establishment of four branches of the Supreme Court (hereinafter referred to as ‘regional courts’) that would decide cases involving non-Constitutional disputes and appeals from the lower-level courts.[xiii]This would give the Supreme Court in Delhi some necessary reprieve. It would also make it much easier for the court to deal with matters of significance, and will also make the court more accessible. Such a setup was also advocated by the Hon’ble Vice-President of India, Shri. Venkaiah Naidu.[xiv] Even the AttorneyGeneral of India, Shri. K.K. Venugopal Advocate for the creation of ‘courts of an appeal’ that would act as intermediary courts between the High Courts and the Supreme Court.[xv]
Even the judiciary acknowledged the establishment of a national court of appeal.[xvi] The legendary judge and jurist, Shri. P.N. Bhagwati noted the same in Bihar Legal Support Society v. Chief Justice of India[xvii]. Most of this stemmed from what was suggested by the Tenth Law Commission of India (95th Report), which stated that the Supreme Court should consist of two Divisions, namely a Constitutional Division, and a Legal Division.[xviii] The report suggested that only matters of Constitutional law may be assigned to the proposed Constitutional Division.[xix] Even the Eleventh Law Commission’s Report suggested that the Supreme Court be divided into two halves.[xx]
Thereafter, the Eighteenth Law Commission recommended that a Constitution Bench be set up in Delhi to deal with constitutional issues, with four regional courts in the four regions- North (to be set up in Delhi/ or any other place), South (to be set up in Chennai/Hyderabad), East (to be set up in Kolkata) and West(to be set up in Mumbai), with the present Supreme court remaining in Delhi and taking up only important matters.[xxi]
THE PROPOSED SYSTEM
The author feels that a slightly different system must be established. Apart from being a court of appeal, regional courts must also be given certain additional powers. In such a system, the regional courts can be set up in 4 regions- North (Punjab because of the original court sitting in Delhi), South (Chennai/ Hyderabad), East (Kolkata) and West (Mumbai), with the original court remaining in Delhi. The original court can take up only constitutional matters and matters of vital importance.
The regional courts can act as Cassation Courts (courts of appeal) and can also possess jurisdiction as the original Supreme Court, barring the jurisdiction it has under Articles 131 and 143. A certificate of fitness would be required to file an appeal in these cassation courts, too. The rules followed by the Supreme Court can be followed by the regional courts. A judgment by a regional court must be seen as a judgment delivered by the apex legal institution and must have the same effect as stated under Article 141 of the constitution.[xxii]
If a case is brought before a regional court, it can examine the case and determine whether it is fit to be transferred to the original court in Delhi. If the regional court feels that it does not involve a substantial question of law, or is not of general/ public importance, then it can dispose of the matter on its own. A judgment passed by the regional court can be reviewed by the regional court itself under Article 137. The reason why the author feels that the regional courts must be given review jurisdiction is that litigants might file a review petition in the Supreme Court soon after the matter has been disposed of by the regional court. That would obliterate the purpose of the regional courts. SLPs can be filed in the regional courts themselves. If a regional court feels that a matter must be referred to the Supreme Court in Delhi, it can do so. However, it would be favourable if the regional courts hear SLPs relating to other matters.
THE POSSIBILITY OF REGIONAL BRANCHES OF THE SUPREME COURT
This piece would now like to focus on whether there is any limitation on the power of the parliament to establish such a setup. It also focuses on why such a setup is essential, and how it will be advantageous to the Indian judiciary in general. Article 130 of the constitution lays down the proposition regarding the seating of the Supreme Court:-
“130. The seat of Supreme Court- The Supreme Court shall sit in Delhi or such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint”
The words ‘or places’ are crucial here. This means that the makers of the constitution did envisage a situation where there might be the need to make the Supreme Court sit in more than one place. Hence, four regional courts can be set up by the Hon’ble Chief Justice with the approval of the President, and with the existing Supreme Court remaining in Delhi to hear only constitutional and other important matters. However, for such a move, the Chief Justice of India must take the initiative.[xxiii]
Hence, such a setup is possible, but it firmly remains in the hands of the Hon’ble Chief Justice of India. The 229th Law Commission Report has noted that the Chief Justice is persona Designata under Article 130, and as a result, need not seek the approval of his fellow judges to set up new branches.[xxiv]If the Chief Justice gives his approval, then the parliament can enact incidental and supplementary laws. The Supreme Court Rules can be subsequently amended to give effect to such a system.
Regarding the number of judges, the Supreme Court (Number of Judges) Act, 1956 will apply. An amendment to the act can be done by the parliament itself. There has also been an occasion where a Chief Justice of India (Shri. Ranjan Gogoi in 2019), sought permission from the cabinet to increase the number of judges in the apex court from 31 to 34.[xxv] The cabinet accepted the request and the number of judges was increased as a result.[xxvi] Therefore, increasing the number of judges will not be an issue.
THE ADVANTAGES OF REGIONAL BRANCHES
It must be noted that many litigants have faced difficulties in approaching the Supreme Court because of its proximity and the expenditure involved. A study has pointed out that litigants residing in states near Delhi have found it easier to approach the Supreme Court.[xxvii]For example, in 2011, 29.2 percent of appeals which were filed in the Supreme Court originated from Punjab, Haryana and Delhi.[xxviii] It has also been noted that on average, 9.3 percent of decisions by the Delhi High Court are appealed to the Supreme Court.[xxix] The numbers for Uttarakhand, Punjab and Haryana are 5.8 percent and 7.4 percent respectively.[xxx] For the four southern states of Karnataka, Kerala, Andhra Pradesh and Tamil Nadu (there was no state of Telangana in the period covered in the study), the proportion of appeals from their decisions is below 3 percent.[xxxi] Not a single state from East India had a percentage of about 2.2.[xxxii] By having regional courts, the proximity and expenditure will become more favourable for litigants. This will also ensure that the right to access justice, which is an integral part of Article 14 and Article 21 as pointed out by the Supreme Court itself, is protected.[xxxiii]Such a setup will also be in furtherance to Article 39A of the constitution, which mentions that there shall be a legal system that promotes justice.[xxxiv]
Such a system will also ensure that the original Supreme Court only has important matters to deal with. The Supreme Court can solely focus on constitutional matters and matters of vital importance (matters that are sent to it by the regional courts). This will make sure that pressing matters are dealt with at a quicker pace by the Supreme Court. Such a system will also increase public trust and confidence as it will reduce the amount of time a docket has to wait to be disposed of.
Such a system will also make sure that the Supreme Court can remain in close contact with the public. By establishing such branches, the Supreme Court will be able to have a closer and better look at what happens in every part of the country. Claims that the Supreme Court will lose its stature do not pass muster as the Supreme Court will be taking such a step to only reduce the backlog of cases. Hence, this will only be for a noble cause.
Though such a system seems prudent, it will result in a lot of challenges. Confusions regarding jurisdiction are bound to arise. Judges and legal practitioners will also find it difficult to adapt to such a system. Moreover, problems regarding what kind of matters must be heard by the original court will also arise. However, confusion and difficulties are always bound to arise if radical changes are made.
It has been seventy-one years since the Supreme Court was established, and it is prudent that the apex legal institution can keep up with the needs of the people and can address such issues at the same time. Even though the establishment of 4 regional branches will not be an easy feat, and even though it will be difficult for legal practitioners and judges to adapt, this is one of the avenues that the Supreme Court must explore if it wants to achieve the purpose for which it was established- to protect the constitution and the rights and liberties of people.
[iv] See Article 32 and Article 131 of the Constitution of India.
[v] See Articles 132 to 134 of the Constitution of India.
[vi] Article 136. Special leave to appeal by the Supreme Court- (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces
[vii] Article 143- Power of President to consult Supreme Court ( 1 ) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon
(2) The President may, notwithstanding anything in the proviso to Article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.
[viii]Article 142- Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe
(2) Subject to the provisions of any law made on this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order to secure the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.
[ix]Article 129- Supreme Court to be a court of record- The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.
[xii]Pritam Singh vs. State, AIR 1950 SC 169.
[xvii](1986) 4 SCC 767.
[xviii]Supra note xiii.
[xx]Supra note xiii.
[xxii]Article 141- Law declared by Supreme Court to be binding on all courts The law declared by the Supreme Court shall be binding on all courts within the territory of India.
[xxiii]Supra note xiv.
[xxiv]See the 229th Law Commission Report- https://lawcommissionofindia.nic.in/reports/report229.pdf.
Study- Robinson, Nick, A Quantitative Analysis of the Indian Supreme Court's Workload (December 13, 2012). Journal of Empirical Legal Studies, Available at:-SSRN: https://ssrn.com/abstract=2189181.
[xxxiii]Anita Khushwa vs. Pushpa Sadan, AIR 2016 SC 3056.
[xxxiv] Article 39A- Equal justice and free legal aid.—The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen because of economic or other disabilities.
The name of the author is Suraj T.N., a law student pursuing his B. Com Llb at Faculty of Law, SRMIST, Kattankulathur, Tamil Nadu. The author is from Chennai, Tamil Nadu. The author is currently in third year and has a strong passion for writing and legal research. The author has published manuscripts in several reputed journals, namely Lex Humanitariae; Lex Forti; and Corpus Juris, The Law Journal. The author has also taken parts in moot courts and debate competitions during his time as a law student. He is passionate about constitutional law, public international law and criminal law. Outside of academics, the author is an avid reader of books. He is also an ardent football and cricket fan.