LAST MONTH, the Chief Justice of India shook up the Supreme Court’s docket, bringing to the fore long-standing contested issues – three pending Constitution Bench cases: the ‘Industry’ definition case (which was heard by nine judges on Tuesday and Wednesday), Sabarimala review, and constitutionality of the Citizenship Amendment Act (‘CAA’). For the issues to have been done ‘justice’, it is only appropriate that considerable time, cost and energy are deployed on them. However, there is another concern.
There are two distinct reactions we can imagine emerging from the news of these latest Constitution Bench listings:, first, approval as some of these cases date back over twenty years, and the second, rooted in more ‘conspiratorial’ reasoning that extraneous political circumstances (the Kerala Elections will most likely coincide with the Sabriamala review) may have dictated the timing of some of the hearings; a large chunk of judges from the Supreme Court’s roster will will be required to suspend substantial time on the cases, which some argue, could be better directed to resolve the long standing and now famous pendency of the Supreme Court. To resolve this issue, a longstanding proposition has been to consider, perhaps, an institutional separation giving rise to a constitutional court and a separate Higher Court of Appeals in India.
In this piece, I first contextualise this recent ‘constitutional rush’ of the Supreme Court by giving an overview of the issue and matters that the Court has recently decided to hear. Then, I assess the arguments for having two higher adjudicatory bodies and different reform proposals in more detail.
