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.
The Constitutional Rush
Last month , the Supreme Court gave directions on the last two pending 9-judge bench matters in the Court’s docket. The first State of Uttar Pradesh v. Jai Bir Singh, deals with the definition of ‘industry’ in Industrial Disputes Act, 1947 that has been pending since 2005 While with the promulgation of the new codes, its central inquiry may have become more academic, the issues will have repercussions of given the pendency of labour disputes and the fact that the new labour codes are manifestly prospective. If the Supreme Court were to give retrospective effect to the Bangalore Water Supply & Sewerage Board v R. Rajappa (1978) decision (in which Justice Krishna Iyer famously gave an expansive definition of industry), it would have implications on all cases from the 1970s to the end of 2025. Further, while the Court has not ruled on the new codes, when the nine judge bench gives its verdict, it will invariably set the scope for the new codes. However, even if the Court highlights the terms and principles of sovereign function, or charitable institutions it would not be decisive for the new codes. Nonetheless, given the authority of the bench, it is going to be highly persuasive. Perhaps even so that the line between binding and persuasive becomes blurry. It will also adjudicate upon whether Justice Iyer’s verdict was unanimous; it would, in effect, guide the reading and interpreting of judgments. On March 17, the Court heard the petitioners.
In April, nine judges will again be hearing the Kantaru Rajeevaru case, the Sabrimala Review. The seven issues in this case cover a broad ambit, ranging from the scope of Articles 25 and 26, to constitutional morality as a standard, to locus in public interest litigation. As mentioned, the timing of the case, which is early April, makes it very likely that it will coincide with the Kerala elections, making sure that the case will be even more politicised. In either case, this is bound to be a decision that would define the relationship of State & religion for the next few years to come.
Over the next three months, other constitutional litigations which have been taken on board and may be heard in the next three months are the constitutional challenge of the Places of Worship (Special Provisions) Act, 1991, validity of the University Grants Commissions Rules 2026, and constitutionality of the various anti-conversion acts across state governments. Beginning from May 5, challenges to the CAA and its 2024 Rules will also be heard by a five judge Constitution Bench. Hearing these cases, the Court will touch upon key questions of religion, citizenship and equality. While it is desirable to have clarity on these vexing questions, another concern is the status of the everyday case docket and the existing pendency.
Role of the Supreme Court: Constitutional / Appellate? Both? None?
The distinction between an appellate and a constitutional court also becomes important in light of how Courts can adjudicate issues like the Ayodhya case, as scholars highlight. Is the role of the Supreme Court that of an appellate Court where it is bound by normal standards of evidence based on admissible evidence and the probative value of such evidence, or can it use its constitutional powers to adjudicate upon issues? This troubling balancing of two roles, constitutional and appellate, has been described by Tarunabh Khaitan as “Identity Crisis”.
The Law Commission’s 95th Report (1984) suggested that the Supreme Court of India should be split into two distinct divisions: a Constitutional Division and a Legal Division. One reason would be Specialisation, as the Commission argued that constitutional adjudication requires a specialised approach and mental equipment distinct from ordinary legal disputes, involving questions of economics, politics, and social policy. At the time of deciding the roster for Constitution Benches, should judges with more experience in dealing with specific areas of law, or experience with social issues, get preference over other judges? Or should seniority, and a forthcoming opportunity be Chief Justice of India be the leading consideration in such cases? Either way, the role of expertise in adjudicating nuanced issues with massive ramifications for the polity at large should remain a persistent consideration.
The other benefit would be consistency. A dedicated division would facilitate the systematic evolution of constitutional jurisprudence as a coherent body of doctrine, ensuring that past decisions and principles are consistently applied. Similarly, the cases which will be heard by nine judges’ benches over March and April have had a tumultuous litigation history; this, perhaps, could be avoided to some extent.
Similar to this are proposals for a permanent constitutional bench of five judges that were mentioned by previous CJIs like Ranjan Gogoi and D.Y. Chandrachud. Building on this, the Law Commission’s 229th Report (2009) recommended setting up a Constitution Bench at Delhi to handle constitutional matters and four Cassation Benches in different regions (Delhi, Chennai/Hyderabad, Kolkata, and Mumbai) to handle appellate work arising from High Courts. The advantages of such an approach would be that the Court, in times like these, would not be burdened with its arrears. And in such times, it would enhance the accessibility of the Courts.
The concern of the increased workload of the Supreme Court was highlighted in the Constitution Assembly Debates as well. An interesting exchange in the Constitution Assembly on May 27, 1949, regarding draft article 108-A (Article 130 now), on the seat of the Supreme Court, reads as: “The Supreme Court shall sit in Delhi or in such other place or places.” highlights this.
Member Jaspat Roy Kapoor argued that the original wording: “shall sit in Delhi or at such other place or places” was ambiguous and potentially harmful to Delhi, since the word “or” could be read as making Delhi and other locations mutually exclusive. He proposed replacing “or” with “and/or” so the Court could sit in Delhi and hold circuit courts elsewhere simultaneously. T.T. Krishnamachari and Dr B.R. Ambedkar both defended the original wording, arguing it was clear enough to cover all contingencies and that “and/or” had no proper legal standing in constitutional text.
Ambedkar explained the broader purpose of the article: Article 108 was needed to formally designate the Supreme Court as a “court of record” (giving its records evidentiary authority and empowering it to punish contempt), while Article 108-A specified Delhi as its seat so litigants would know where to go. The flexibility clause allowing the Chief Justice to appoint other locations with presidential approval was included in case India's capital ever changed, avoiding the need for a constitutional amendment.
Importantly, for the current debate, Ambedkar also clarified that circuit benches sitting elsewhere would still be permissible even while the Court's main seat remained in Delhi. Thus, Article 130 does allow for circuit benches.
Sudhir Krishaswamy argues that the two structural reforms mentioned above, namely: a separation of constitutional jurisdiction benches from appellate jurisdiction benches, and the designation of some appellate jurisdiction benches as regional benches, can improve accessibility and help in pendency. He argues that some of these changes could be effectuated without a constitutional amendment and through the changes to the Supreme Court rules themselves.
Similarly, the then CJI P.N. Bhagwati CJI in Bihar Legal Support Society v. The Chief Justice Of India (1986) suggested a third alternative, that is the creation of a ‘National Court of Appeal’, which will free up the Supreme Court’s role as a constitutional court. That being said, all these proposals need to be assessed further, as with the further proposals, with empirical data and consultations.
The essential feature across these proposals is that whatever may be the solution or the broad institutional reform, or the mechanism bringing it in (amendment, interpretation, modification), the essential consideration has to be that constitutional cases are decided efficaciously and are not placed on the back burner. Constitutional cases should not become mere academic inquiry and the institutional architecture must not act as an excuse for judicial abdication. While also having safeguards, the day-to-day role of an appellate court that provides remedies on routine matters is unhampered. All of the above proposals can, in theory, achieve this balance; what is lacking is the desire to reform and iron out the exact nuances to usher in such reform in practice.
Conclusion
However, to conclude in the light of the recent constitutional rush, perhaps Chief Justice Surya Kant can also think about the Supreme Court as an institution and what might be the long-term structure of the Supreme Court that will enable it to play both its roles, constitutional and appellate, better.
Institutional separation proposals offer one answer, but they come in distinct strands. A “constitutional division” model retains a single Supreme Court while creating a constitution-focused wing with protected time and clearer listing practices for constitution-bench matters. A “constitutional court plus cassation benches” model goes further, relocating routine appellate work to regional benches and reserving Delhi for constitutional cases and nationally significant questions of law. Whereas a “national court of appeal” would make litigation even more Delhi-focused and is perhaps an inferior alternative to having a regional cassation bench, as they might increase access.
However, amidst all this discussion, it seems to be clear that the Supreme Court, as it currently stands, has its docket full, and that needs attention; simultaneously the social issues in a diverse polity like India need urgent attention, too. However, the current institutional architecture of the Court prevents it from fully committing to either role. No matter what variant of reform is opted for, the only clarity is that the status quo, where an institution is fulfilling multiple roles, is not desirable. Only time will tell which reform gains currency and is finally implemented.
