HARI Singh Gour, a distinguished barrister, poet and parliamentarian was the first to moot the idea of a “Court of Ultimate Appeal” for India in 1921. Till the establishment of the Federal Court in India, final appeals from India were heard and decided by the Judicial Committee of the Privy Council, an imperial body sitting in London, some six thousand miles from India.
The road to the establishment of the Supreme Court of India was a long and winding one. The journey took the course of rejection of numerous resolutions, and deliberations before Round Table Conferences from 1921 to 1932. Ultimately, the Government of India Act, 1935 paved way for the establishment of the Federal Court in India on October 10, 1937. The Court was designated as the “Federal Court” till independence, and as the “Federal Court of India” thereafter, until replaced by the “Supreme Court of India” on January 26, 1950[i].
After its inauguration on January 28, 1950, the Supreme Court of India commenced its sittings in a part of the Parliament House, before finally shifting to the present majestic sandstone structure in 1958. The original Constitution of 1950 envisaged a Supreme Court with a Chief Justice and 7 puisne Judges, leaving it to Parliament to increase this number. In the early years, all Judges of the Supreme Court sat together to hear the cases presented before them. As the work of the Court increased, and arrears of cases began to cumulate, Parliament increased the number of Judges from 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978 and 26 in 1986. As the number of the Judges increased, they presided in smaller Benches of twos and threes – forming larger Benches of 5 or more only when required to do so or to settle a difference of opinion or controversy. As on today, the Supreme Court of India is working with a total strength of 32 judges. The gradual increase in the number of judges in view of the increasing number of cases indicates the adaptability of the Supreme Court with changing times.
Sequence of events: Proposition of a separate constitutional court and cassation benches in India
Post-independence, the conceptualization of a separate constitutional branch and a final court of appeal can be traced to 1984 when the Tenth Law Commission published its 95th Report titled “Constitutional Division within Supreme Court”. The Report recommended that the Supreme Court of India may set up a separate Constitutional Division and a Legal Division. It was proposed that the Constitutional Division of the Supreme Court will only deal with matters of constitutional law i.e. cases involving a substantial question of law as to the interpretation of the Constitution of India; whilst the remaining matters would be assigned to the Legal Division. The Law Commission in its Report made an important observation that a separate institution was not needed, and only some modifications in the existing institution were required.
The judiciary for the first time in 1986 observed the need of having a “National Court of Appeal” in India. The Constitution Bench presided over by the then Chief Justice of India, P N Bhagwati while deciding a Public Interest Litigation – Bihar Legal Support Society v. Chief Justice of India & Anr.(1986) 4 SCC 767 for safeguarding legal and constitutional rights of the poor and disadvantaged sections, noticed the clogged dockets of the Court and suggested a possible remedial measure of adopting a National Court of Appeal in India. The Supreme Court observed that:
“…We think it would be desirable to set up a National Court of Appeal which would be in a position to entertain appeals by special leave from the decisions of the High Courts and the Tribunals in the country in civil, criminal, revenue and labour cases and so far as the present Apex Court is concerned, it should concern itself only with entertaining cases, involving questions of constitutional law and public law…”
The Eleventh Law Commission in the year 1988 submitted its 125th Law Commission Report titled “The Supreme Court – A fresh look” wherein it reiterated its earlier view of splitting the Supreme Court into two halves, and supported the view of setting up branches all over India. It was inter alia recommended that a minimum of 12 retired Judges may be requested to sit in four Benches, each comprising of three members, and dispose of old civil and criminal appeals.
The 2nd (2004), 6th (2005) and 15th (2006) Reports of the Parliamentary Standing Committee on Law and Justice repeatedly suggested that in order to promote speedy justice available to the common man, benches of the Supreme Court have to be established in the Southern, Western and North-Eastern parts of the country. In its 20th (2007), 26th (2008) and 28th (2008) Reports, the Standing Committee suggested that a Bench of the Supreme Court should be established at least in Chennai on a trial basis, as this would be of immense help to the poor, who cannot travel from their native places to Delhi. Despite these Reports, the Hon’ble Supreme Court did not agree to the suggestion of setting up its Benches[ii].
In August 2009, the Law Commission of India took suo moto cognizance of this issue and published its 229thReport on the “Need for division of the Supreme Court into a Constitution Bench at Delhi and cassation benches in four regions at Delhi, Chennai/Hyderabad, Kolkata and Mumbai”. It was inter alia recommended that a Constitution Bench be set up in Delhi to deal with constitutional issues. In addition, four cassation benches are set up in the Northern region/zone at Delhi, the Southern region/zone at Chennai/Hyderabad, the Eastern region/zone at Kolkata and the Western region/zone at Mumbai to deal with all appellate work arising out of the orders/judgments of the High Courts of the particular region.
In 2016, public interest litigation was filed before the Supreme Court of India concerning structural reforms at the highest body of the Indian judicial system. The PIL sought a mandamus directing the respondent – Union of India to take steps for implementation of the suggestion of the Constitution Bench in Bihar Legal Support Society’scase (supra) by establishing a National/Regional Courts of Appeal (“NCA”). It was observed that the Supreme Court was never meant to be a regular court of appeal. It was meant to exercise its powers under Article 136 of the Constitution only in cases which raised important questions involving the interpretation of the Constitution, or questions of general public importance, or questions of constitutionality of State or Central legislations, or those raising important issues touching Centre-State relationship, or in cases of a grave miscarriage of justice. The Court was also conscious of the fact that huge pendency of cases in the Supreme Court not only attracts criticism from the general public but also from independent observers of the judicial system. While suggesting a way forward, Mr K K Venugopal, who was appointed as an Amicus Curiae by the Court, advised to set up Regional Courts of Appeal, which would enable persons living at distant places to come closer to doors of justice, and in turn, reduce the burden of the Supreme Court. Considering the gravity of the situation, the bench comprising of the then Chief Justice, T. S. Thakur, CJI, on 13.07.2016, framed eleven issues and referred it to a Constitution Bench.
Recently, in September 2019 during a public event, the Vice President of India, Shri M. Venkaiah Naidu endorsed the recommendation of the Law Commission towards splitting the Supreme Court into Constitutional Division and Courts of Appeal for steady disposal of cases. He underlined the need to set up four Regional Benches of the apex court and clarified that this arrangement does not require any amendment to the Constitution. He recalled Article 130 of the Constitution which states: “The Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time appoint.”
The Need to effectuate the recommendations
Amongst other reasons such as the incapacity of the poorest to access the Supreme Court due to additional expenses of travel and accommodation, professional fees of advocates-on-record / counsel based in Delhi, etc., the pendency of cases leading to overburdening of the Supreme Court act as a crucial factor for implementing the recommendation of establishing NCAs. So far as the pendency of cases is concerned, statistics indicate that numbers have been on the incline. In 1950, there were 1,215 cases which were instituted (1,037 admission matters and 178 regular matters). The disposal rate was 525 (491 admission matters and 34 regular matters) and pendency of cases at the end of the year was 690 (546 admission cases and 144 regular cases). Therefore, as against 1,215 institutions, the disposal of cases was 690 and the number of Judges was 7. The total number of the institution of cases from January to April in the year 2008 was 28,007 and the disposal of cases was 28,559, i.e., 552 cases above the institution of cases. Yet the pendency of cases remained at 46,374. This clearly shows that pendency of cases has accumulated over the years, and has also been carried forward. In three years notably, i.e., 1989, 1990 and 1991 the pendency-figure crossed over one lakh[iii]. As on March 1, 2020, a total of 60,469 matters were pending before the Supreme Court of India. These include 551 constitution bench matters (A bench comprising of not less than 5 judges) out of which 402 were five-judge bench matters, 13 were seven judges bench matters and 136 were nine judges bench matters. Interestingly, out of the total pending matters, 12,071 were incomplete matters, which is to say that those matters could not be listed for hearing before the Court. At present, the cases pending before the Supreme Court to Supreme Court Judges ratio is approx. 1800:1 while the Citizen to Judge Ratio is approx. 4,00,00,000:1.
Position in different countries
The world-wide democratization that took place in the 20th century led to the emergence of innovative ideas for adjudication of disputes, which included setting up separate constitutional courts, and courts with the authority of cassation. For instance, Italy has a separate constitutional court (Corte costituzionale della Repubblica Italiana) with powers to decide issues of constitutionality of laws, the jurisdictional conflict between organs of state, crimes committed by the president of the republic, etc. In addition to the constitutional court, Italy has a separate Supreme Court of Cassation (Corte Suprema di Cassazione) with the authority to review the decisions of the lower courts for consistency with the law of the land. Egypt has a Court of Cassation, which is the Supreme Court of Egypt’s common court system, and the Supreme Constitutional Court comprising of a President (or Chief Justice) and ten Vice-Presidents (or Deputy Chief Justices), with the primary role of deciding the constitutionality of laws.
The establishment of National Courts of Appeal is a step into the future to prevent snowballing of pendency of cases. Being a socialist democratic republic, right to legal remedy of the public at large, irrespective of their social or financial standing, is a basic right. The litigant-oriented approach will reinforce faith in the judiciary. The geographical challenge to access the apex court cannot be a hurdle to deprive and deter the unfortunate class of the society from accessing the justice system. A pragmatic approach to adopt a flexible mode of adjudication of disputes is the need of the hour. With the multifold rise in litigation, it is for the Supreme Court to stand tall and wise, and extend its branches to provide shelter to those in need.
(Author is an Advocate at Supreme Court of India)
[i] Supreme Court of India: The Beginnings, George H. Gadbois, Jr., Oxford University Press, 2017, Chapter 1 & 2.
[ii] Clause 2.13 of the 229th Law Commission Report on the Need for division of the Supreme Court into a Constitution Bench at Delhi and cassation benches in four regions at Delhi, Chennai/Hyderabad, Kolkata and Mumbai dated August 2009.
[iii] Clause 2.6 of the 229th Law Commission Report on the Need for division of the Supreme Court into a Constitution Bench at Delhi and cassation benches in four regions at Delhi, Chennai/Hyderabad, Kolkata and Mumbai dated August 2009.
Note: This is an opinion piece, and the views expressed are the author’s own.