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Thursday, July 14, 2016

The Commission felt that a liberal grant of leave to appeal had the tendency to adversely affect the prestige of the High Courts. It said: “(13) Although the exercise of the jurisdiction under Article 136 of the Constitution by the Supreme Court in criminal matters sometimes serves to prevent injustice, yet the Court might be more chary of granting special leave in such matters as the practice of granting special leave freely has a tendency to affect the prestige of the High Courts.” - The Registry shall, accordingly, place the record before the Hon’ble Chief Justice for constituting an appropriate bench.

                        IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION

                       WRIT PETITION (C) NO.36 of 2016

V. Vasanthakumar                             ...Petitioner

H.C.Bhatia and Ors.                          ...Respondents

                               J U D G M E N T
1.    This petition, filed in public  interest,  raises  questions  touching
possible structural reforms at the highest echelons of the  Indian  judicial
system. Similar questions have been addressed in the past not  only  by  the
Law Commission but also by this Court on the judicial side. We  may  briefly
refer to the same to place the issues that fall for determination in  proper

2.    In its 14th Report dated 26th September, 1958, the Law  Commission  of
India advocated the need for a restrained approach towards grant of  special
leaves to appeal against judgments and orders passed  by  the  High  Courts.
The Commission felt that  a  liberal  grant  of  leave  to  appeal  had  the
tendency to adversely affect the prestige of the High Courts. It said:
“(13) Although the exercise of the jurisdiction under  Article  136  of  the
Constitution by the Supreme Court in criminal matters  sometimes  serves  to
prevent injustice, yet the Court might be more  chary  of  granting  special
leave in such matters as the practice of granting special leave  freely  has
a tendency to affect the prestige of the High Courts.”

3.    Then came the 95th report dated 1st  March,  1984  in  which  the  Law
Commission proposed the setting up of a Constitutional Division  within  the
Supreme Court, in the following words:

“6.4 If the proposed constitutional division is to be created, it will  have
to be assigned a part of the  business  of  the  Supreme  Court  within  its
jurisdiction as at present provided.  The second  issue  that  falls  to  be
considered is, what matters should be assigned to that  division.   In  this
connection, there are two principal alternatives to  be  considered  as  per
(a) and (b) below:

This division may be entrusted with  the  adjudication  of  all  public  law
cases within the  Supreme  Court’s  jurisdiction.  If  this  alternative  is
accepted, its jurisdiction would comprise–

every case involving a substantial question of law as to the  interpretation
of the Constitution, or an order or rule issued under the Constitution;

every case involving a question of Constitutional law,  not  falling  within
(1) above;

every appeal against the decision of a High Court,  rendered  under  Article
226 of the Constitution;

every appeal against the decision of a tribunal under  article  136  of  the
Constitution (whether such tribunal is created by law passed  by  virtue  of
article 323-A or Article 323-B of the Constitution or  otherwise),  where  a
question of administrative law is involved.

In the alternative, only matters of Constitutional law may  be  assigned  to
the proposed Constitutional Division. If this alternative is  accepted,  its
jurisdiction would only the items (i) and (ii) mentioned in (a) above.   The
jurisdiction would then cover only the following:

every case involving a substantial question of law as to the  interpretation
of the Constitution or an order or rule issued under the Constitution, and

every case involving a question of constitutional law,  not  falling  within
(i) above.

Our preference is for  alternative  (b)  above.   It  is  easier  to  define
precisely and locate such matters, confined to  constitutional  law  proper.
We appreciate that question of constitutional and administrative  law  often
dovetail into each other, particularly in proceedings under article  226  of
the Constitution (which may reach the Supreme Court on appeal). But, in  our
opinion, it would be desirable to make  the  jurisdiction  of  the  proposed
division narrow and compact, at least for the present.

Accordingly, we recommend that the proposed Constitutional Division  of  the
Supreme Court should be entrusted with the cases of the nature mentioned  in
alternative (b) above. It follows that other matters coming to  the  Supreme
Court will be assigned to its Legal Division.

6.5. Of course, the creation of two divisions in the abstract does  not  end
the matter. For practical implementation of the proposed scheme, it will  be
necessary to deal with at least two concrete matters, namely, (1)  when  can
a constitutional issue be said to be “involved” and (ii) what  will  be  the
machinery for allocating cases between two divisions.

As to the first matter, which relates to the criterion  to  be  adopted,  we
should make it clear that  a  case  should  be  regarded  as  “involving  a”
constitutional issue only when the decision  of  that  issue  is  absolutely
necessary for the disposal of the controversy. The mere fact  that  a  party
has raised a constitutional issue  is  not  enough.  Although,  it  may  not
always be possible to determine at the outset (at the time of allocation  of
the case), whether the case “involves” a constitutional issue in  the  above
sense, it may still be useful to bear this aspect in mind”

4.    Two years later in Bihar Legal Support Society v.  Chief  Justice  and
Others (1986) 4 SCC 767, a Constitution Bench of this Court while  disposing
of a Writ Petition in which the petitioner had  prayed  for  adoption  of  a
uniform approach and sensitivity in special leave  petitions  filed  by  the
less fortunate of the litigants  as  was  shown  in  the  case  of  two  big
industrialists for whom the Court had held a late night sitting to  consider
their prayer for bail, held that special leave  petitions  filed  by  “small
men” were entitled to the same consideration as is given to those  filed  by
“big industrialists”. This Court declared that it had  always  regarded  the
poor and the disadvantaged to  be  entitled  to  preferential  consideration
over the rich and the affluent,  the  businessmen  and  the  industrialists.
That is because the weaker section of the Indian humanity had been  deprived
of justice for several years on account  of  their  poverty,  ignorance  and
illiteracy, and on account of their social  and  economic  backwardness  and
resultant lack of capacity to assert their rights. This Court  rejected  the
suggestion that it was not giving to the “small men” the same  treatment  as
it was giving to the “big industrialists”.

5.    Having said that, this Court declared that it was  never  intended  to
be a regular court of appeal against orders made by the High Courts and  the
Sessions Courts or the Magistrates. It was created as an apex court for  the
purpose of laying down the law for the entire country and for  that  purpose
it was given the  extraordinary  jurisdiction  to  grant  special  leave  to
appeal under Article 136 of the Constitution  so  that  it  could  interfere
whenever it found that the law was not correctly appreciated or  applied  by
the lower courts  or  tribunals.  The  jurisdiction  was  also  held  to  be
available for correction of grave miscarriage of justice. More  importantly,
this Court held that every case, where the  apex  court  finds  some  error,
need not be entertained for otherwise, the  Court  would  become  a  regular
court of appeal and be reduced to a position where it will not  be  able  to
remedy any injustice at all, on account of the tremendous backlog  of  cases
which will get accumulated. This Court said:

“We must realise that in the vast majority of cases  the  High  Courts  must
become final even if they are wrong. The apex court can  also  be  wrong  on
occasions but since there is no further appeal, what the apex court says  is
final.  That is why one American Judge said of  the  Supreme  Court  of  the
United States: “We are right because we are final: we are not final  because
we are right”.  We must, therefore, reconcile ourselves  to  the  idea  that
like the apex court which may be wrong on occasions,  the  High  Courts  may
also be wrong and it is not every error of the High  Court  which  the  apex
court can possibly correct.  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.  But until any such policy decision is endorsed by the government,  the
apex court must interfere only in the limited class of cases where there  is
a substantial question of law involved which needs to  be  finally  laid  at
rest by the apex court for the entire  country  or  where  there  is  grave,
blatant and atrocious miscarriage of justice.”

6.    The Law Commission of India took another two  years  after  the  above
observations to reiterate its recommendation whereunder it had proposed  the
splitting  of  the  Court  into  two  divisions.  While  doing  so  the  Law
Commission gave an additional reason namely the handicap which the  litigant
from more distant parts of the Country like Tamil Nadu in South, Gujarat  in
the West and Assam and other States in  the  East  face  in  the  matter  of
accessing justice before the Supreme Court.  The Commission observed:

“......The result is that those coming from distant places like  Tamil  Nadu
in the South, Gujarat in the West and Assam and other  States  in  the  East
have to spend huge amount on travel to reach the Supreme Court. There  is  a
practice of bringing one’s own lawyer who handled the  matter  in  the  High
Court to the Supreme Court. That adds  to  the  cost.   And  an  adjournment
becomes prohibitive. Adjournment is a recurrent  phenomenon  in  the  Court.
Costs get multiplied.  Now if the Supreme Court  split  into  Constitutional
Court and Court  of  Appeal  or  a  Federal  Court  of  Appeal,  no  serious
exception could be taken  to the Federal Court of Appeal sitting in  Benches
in places North, South, East, West and Central India.  That would  not  only
considerably reduce costs but also the litigant will have the  advantage  of
his case being argued by the same advocate who has helped him  in  the  High
Court and who may  not  required  to  travel  to  long  distances.  Whenever
questions of constitutionality occur, as pointed out  in  that  report,  the
Supreme Court can sit in en banc at Delhi and  deal  with  the  same.   This
cost benefit ratio is an additional but  important  reason  for  reiterating
support to the recommendations made in that report.”

7.    Then came the 229th report dated 5th August,  2009  submitted  by  the
Law Commission, whereunder, it once again recommended restructuring  of  the
Supreme Court by setting up of a Constitution Bench at Delhi  and  Cessation
benches in  four  regions  namely;  Delhi,  Chennai/Hyderabad,  Kolkata  and
Mumbai. Drawing support from the system prevalent in  other  countries  like
Italy, Egypt, Portugal, Ireland, United States and  Denmark  the  Commission
recommended that:

“(1)  A Constitution Bench be set up at Delhi to  deal  with  constitutional
and other allied issues as aforesaid.

Four Cassation Benches be 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.

If it is found that Article 130 of the Constitution cannot be  stretched  to
make it possible to implement the above recommendations,  Parliament  should
enact a suitable legislation/ Constitutional amendment  for  this  purpose.”

8.    In Mathai @ Joby v. George & Anr., (2010) 4 SCC 358,  this  Court  was
once more confronted with  the  question  whether  Special  Leave  Petitions
should or should not be entertained against every kind of order. This  Court
noticed that Special Leave Petitions  were  being  filed  by  the  litigants
against almost every kind of order resulting in piling up  of  huge  arrears
and converting this Court into an ordinary appellate court which  was  never
the intention of the framers of the Constitution when they  enacted  Article
136 and empowered the Supreme Court to intervene by granting  special  leave
to appeal to an aggrieved litigant.  Relying  upon  the  decisions  of  this
Court in N. Suriyakala v. A. Mohandoss (2007) 9 SCC 196, Bengal  Chemical  &
Pharmaceutical Works Ltd. v. Employees  AIR  1959  SC  633,  Kunhayammed  v.
State of Kerala (2000) 6 SCC 359, State of Bombay v. Rusy  Mistry  AIR  1960
SC 391, Municipal Board, Pratabgarh v. Mahendra Singh Chawla  (1982)  3  SCC
331, Ram Saran Das and Bros. v. CTO AIR 1962 SC 1326, Pritam Singh v.  State
AIR 1950 SC 169, Tirupati Balaji Developers  (P)  Ltd.  v.  State  of  Bihar
(2004) 5 SCC 1, Jamshed Hormusji Wadia v. Port of Mumbai (2004) 3  SCC  214,
Narpat Singh v. Jaipur Development Authority (2002) 4 SCC 666,  Ashok  Nagar
Welfare Assn. v. R.K. Sharma (2002) 1 SCC 749,  this  Court  held  that  the
exercise of jurisdiction under  Article  136  of  the  Constitution  by  the
Supreme Court was discretionary and that the  provision  did  not  confer  a
vested right of appeal to a party in litigation.

9.    This Court further held that the extraordinary jurisdiction vested  by
the Constitution implied that the  Court  ought  to  exercise  extraordinary
care and caution while making use of  that  power.  Having  said  that  this
Court lamented the filing of special leave petitions  against  all  kind  of
orders of the High Court or other authorities  without  realising  the  true
scope of Article 136 of the Constitution thereby giving rise to an  alarming
situation whereby this Court had converted  itself  into  a  mere  court  of
appeal as though it was obliged to correct every error  which  it  found  in
any judgment delivered by any  Court  or  Tribunal  exercising  jurisdiction
under any statute.

10.   On a conspectus of the dimensions of  the  question  this  Court  held
that exercise of jurisdiction under Article 136 of the  Constitution  should
be limited to certain specific category of cases and referred  the  question
of interpretation of Article 136 to a Constitution Bench  in  the  light  of
Article 145(3) of the Constitution.

11.   The Constitution Bench, however, declined to look  into  the  question
of interpretation of Article 136 of the Constitution  or  to  enumerate  the
circumstances in which the extraordinary power vested in  this  Court  under
the said provision  could  or  ought  to  be  exercised.  Relying  upon  the
decisions of this Court in Pritam Singh v. The State 1950 SCR  453  at  page
457 Penu Balakrishna Iyer & Ors v. Ariya M. Ramaswami Iyer & Ors.  (1964)  7
SCR 49 at Page 53 and Union Carbide Corporation & Ors. v. Union of  India  &
Ors. (1991) 4 SCC 584, the Constitution Bench held that power under  Article
136 had to be exercised with circumspection but  considered  it  unnecessary
to limit the use thereof forever by a process of interpretation.  The  Court
was of the view that the question referred to the Constitution  Bench  stood
answered by the three decisions mentioned above.

12.   It is in the above backdrop that the petitioner who  is  a  practicing
Advocate has filed the present petition in which he has  sought  a  mandamus
directing the respondents to consider his representation and to  take  steps
for implementation of the suggestion  of  the  Constitution  Bench  of  this
Court in Bihar Legal  Support  Society’s  case  (supra)  by  establishing  a
National/Regional Courts of Appeal.

13.   When the writ petition came up for preliminary hearing  before  us  on
26th February, 2016, while issuing notice, we requested Shri Mukul  Rohatgi,
learned Attorney General for India to assist us in the matter. In  addition,
we requested Shri K.K. Venugopal and Shri Salman  Khurshid,  learned  Senior
Counsel to appear and assist the Court as Amicus Curiae.

14.   We have,  accordingly,  heard  at  some  length  the  petitioner,  the
learned Attorney General and the learned Amicus Curiae. We have  also  heard
at some length Shri Andhyarujina who intervened to make his  submissions  in
support of the prayer made in the  writ  petition.  Relying  upon  a  report
prepared by Vidhi Centre for Legal Policy on “the  need  for  efficient  and
effective Supreme Court”  by  reference  in  particular  to  the  issues  of
backlog and regional disparities in access to justice, Mr. Venugopal  argued
that the statistics quoted by Vidhi and the analysis thereof based on  round
table  discussions  with  several  eminent  lawyers  and  jurists,   clearly
established that the Supreme Court had strayed from its  original  character
as a Constitutional Court and gradually converted itself into a  mere  court
of appeal to correct every error it found in the decisions of  the  24  High
Courts and numerous Tribunals subordinate to it.

15.   The jurisdiction of the Supreme Court, argued Mr. Venugopal,  was  now
being invoked in relation to matters falling within 45 categories listed  in
the Practice and Procedure Handbook. It was  submitted  that  there  was  an
urgent need for a comprehensive re-appraisal of  the  role  of  the  Supreme
Court and the need for  restoring  its  exclusivity  as  suggested  by  Shri
Andhyarujina in his article “Studying US Supreme  Court  Working”  1994  (4)
SCC Journal 1.  It was urged that filing  of  cases  in  the  Supreme  Court
since 1950 had increased exponentially for as against 1215  cases  filed  in
total in the Supreme Court in the year 1950 the total number of cases  filed
in the year 2014 (Upto November) were no less than 81,853.  This argued  Mr.
Venugopal showed a cumulative annual growth rate of 6.8 per cent  per  year.
It also suggested that the number  of  cases  filed  in  the  Supreme  Court
doubled every year or so and the trend continued. The Supreme Court  was  by
that standard likely to be facing a burden of nearly 1.5 lakh cases  by  the
year 2025.

16.   Shri Venugopal, further argued that on  account  of  the  distance  at
which the Supreme Court is located from other parts of the  country,  access
to justice before the Supreme Court had been adversely effected in  as  much
as litigants from far off places were unable to reach the Supreme  Court  as
against  those  from  High  Courts  that  are  closer  in  proximity.   This
according to the learned Counsel  denied  equal  justice  to  citizens  from
these far off places in  breach  of  the  Constitutional  mandate  of  equal
access of justice to all. According to  the  learned  counsel  the  lack  of
access had led to a demand for Regional Benches  of  the  Supreme  Court  in
different parts of the  country  or  for  setting  up  of  National/Regional
Courts of Appeal. Shri Venugopal drew  our  attention  to  the  position  in
other countries, where too, because  of  the  huge  backlog  of  cases,  the
systems had been reformed to provide Courts of  Appeal  as  an  intermediary
Court between the High Courts and  the  Supreme  Court.  He  referred  to  a
speech delivered by Hon’ble Mr.  Justice  Susan  Delham,  Chief  Justice  of
Ireland to argue that despite several initiatives like case management,  use
of information technology, mediation for amicable settlement  encouraged  by
the Courts, the burden that came to fall upon the Irish  Supreme  Court  was
making it difficult for that Court  to  cope  up  with  the  situation.  The
solution which a working Group  suggested  was  referred  to  by  the  Chief
Justice of Ireland in the following passage of his speech:

The solution advocated by the Working Group on a  Court  of  Appeal  in  the
report published in 2009 was the establishment of a Court of  Appeal.   This
would be a permanent court which  would  have  several  divisions,  to  hear
appeals in civil cases and to hear appeals in criminal cases.   Thus,  there
would be a permanent Court of Appeal, with permanent judges on  that  Court,
which would sit in several divisions – civil and criminal.

All the other common law countries have a Court of  Appeal  in  their  legal
system, placed between the Courts equivalent to  our  High  Court,  and  the
Supreme Court.”

17.   The Indian story was no different contended Mr.Venugopal. The  working
of the Supreme Court and the ever  increasing  burden  which  has  grown  to
almost unmanageable limits has made it extremely difficult  for  the  Judges
of this Court to contain the piling arrears to a reasonable limit making  it
necessary for this Court to examine the possibility  of  structural  reforms
and  to  make  suitable  recommendations  to  the  Government   for   taking
corrective measures including a possible amendment of the Constitution.

18.    Shri  Andhyarujina  while  adopting  the  submissions  made  by  Shri
Venugopal submitted that because of  increased  awareness,  legal  literacy,
development and resultant prosperity in the country, the number of cases  is
bound to increase. Experience shows that these cases leave little  time  for
the Court to take up important constitutional matters which ought to  engage
the attention of this Court as its primary duty. He urged that  it  is  time
to give a thought to the formidable challenge that judiciary  is  facing  at
the highest level and to push reforms  that  would  not  only  restore  this
Court to the glory it was meant to enjoy but also make access to  justice  a
reality by setting up Courts of Appeal which  can  be  approached  by  every
litigant without having to travel long distances to Delhi.

19.   Mr. Rohatgi, learned Attorney General, on the other hand  argued  that
the Writ Petition was not maintainable  as  the  petitioner  has  suppressed
certain important  facts  which  disentitle  him  to  relief.  It  was  also
contended that the proposed National Court of Appeal or Regional  Courts  of
Appeal were neither constitutionally  permissible  nor  otherwise  feasible.
He contended that Article 136 of the Constitution gives to the  citizens  of
this country an inalienable right to invoke  the  appellate  power  of  this
Court.  That power being a basic feature of the Constitution, it  could  not
be taken away or  conferred  upon  another  Court  or  forum.   Mr.  Rohatgi
submitted that what was perhaps required was self restraint  by  this  Court
in the matter  of  entertaining  special  leave  petitions  as  it  was  not
necessary for this Court to correct every error committed by the High  Court
or the statutory Tribunals  set  up  to  decide  cases  involving  different
subjects and dimensions.

20.   We have given our anxious consideration to  the  submissions  made  at
the Bar. Certain facts are beyond dispute.  It is not in  dispute  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   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 etc.   The  jurisdiction
may also have been available to the Court where it found  gross  miscarriage
of justice  or  an  error  so  outrageous  as  no  reasonable  person  would
countenance. The power to interfere was not meant  to  be  exercisable  just
because  prolonged  argument  would  eventually   reveal   some   error   or
irregularity or a possible alternative view on a subject that did not  cause
any miscarriage of justice of a kind that would shock the conscience of  the
court on the subject.  The long line of decisions of the Court to  which  we
have made reference earlier supports that view. The  fact,  however  remains
that the filing of cases in the Supreme Court over the past six decades  has
grown so sharply that the Judge strength in the  Supreme  Court  is  proving
inadequate to deal with the same.  Statistics show that more than  3/4th  of
the total number of cases filed are  dismissed  in  limine.   Even  so,  the
dismissal is only after the court has applied its mind and  heard  arguments
which consume considerable time of the Judges. Dismissal of an  overwhelming
number of cases has not and does not discourage the litigants or the  member
of the Bar from filing cases. That is why the number of cases  filed  is  on
the rise every year.

21.   It is common knowledge that the huge backlog of cases in  the  Supreme
Court not only attracts criticism from the litigant  public  but  also  from
independent observers of the judicial systems. To add to  the  woes  of  the
Court there are a number of new  legislations  which  provide  for  a  first
appeal to the Supreme Court, a  role  which  the  Supreme  Court  was  never
intended to play in the Constitutional scheme.  Suffice it to say  that  the
pronouncement of this Court sounding notes of caution against liberal  grant
of special leave to appeal  or  exercise  of  restraint  in  the  matter  of
entertaining cases have lead to no meaningful improvement in the  situation.

22.   What then is the way forward? M/s. Venugopal  and  Andhyarujina  argue
that the way forward is setting up of Regional Courts  of  Appeal,  firstly,
because the  same  would  take  justice  closer  to  the  doorsteps  of  the
litigants, especially those living at distant places and  secondly,  because
an intermediary court would reduce the burden of the Supreme  Court  without
denying to the litigants an opportunity to agitate his case before  a  court
higher than the High Court.  The only difference in that situation  will  be
that in place of the Supreme Court the Court of Appeal would look  into  the
matter and correct whatever needs to be corrected in the  judgment  impugned
before it. It is in that backdrop that following  questions  arise  for  our

With access to justice being a  fundamental  right,  would  the  said  right
stand denied to litigants, due to the unduly long delay in the  disposal  of
cases in the Supreme Court?

Would the mere increase in the number of judges be an answer to the  problem
of undue delay in disposal of cases and to what extent would  such  increase
be feasible?
Would the division of the Supreme Court into a Constitutional  wing  and  an
appellate wing be an answer to the problem?

Would the fact that the Supreme Court of India is situate in the far  North,
in Delhi, rendering travel from the Southern states and  some  other  states
in India, unduly long and expensive,  be  a  deterrent  to  real  access  to

Would the Supreme Court sitting in benches in different parts  of  India  be
an answer to the last mentioned problem?

Has the Supreme Court of India been exercising jurisdiction as  an  ordinary
court of appeal on facts and law,  in  regard  to  routine  cases  of  every

Is the huge pendency of cases in the Supreme Court, caused by the Court  not
restricting its consideration, as in the case of the Apex  Courts  of  other
countries, to  Constitutional  issues,  questions  of  national  importance,
differences of opinion between different High Courts, death  sentence  cases
and matters entrusted to the Supreme Court  by  express  provisions  of  the

Is there a need for having Courts of Appeal, with exclusive jurisdiction  to
hear and finally decide the vast proportion of the routine  cases,  as  well
as Article 32 petitions now being decided by the  Supreme  Court  of  India,
especially when a considerable proportion of the four million cases  pending
before the High Court may require review by a higher intermediate court,  as
these judgments of the High Courts may fail  to  satisfy  the  standards  of
justice and competence expected from a superior court?

If four  regional  Courts  of  Appeal  are  established,  in  the  Northern,
Southern, Eastern and Western regions of the Country, each manned  by,  say,
fifteen judges, elevated or appointed to each Court by the Collegium,  would
this not satisfy the requirement of ‘access to  justice’  to  all  litigants
from every part of the country?

As any such proposal would need an amendment to the Constitution, would  the
theory of ‘basic structure’ of the Constitution be  violated,  if  in  fact,
such division of exclusive jurisdiction between the Supreme  Court  and  the
Courts of Appeal, enhances the  efficacy  of  the  justice  delivery  system
without affecting the independence of the judicial wing of the State?

In view of cases pending in the Supreme Court of India on average for  about
5 years, in the High Courts again for about 8 years, and anywhere between 5-
10 years in the Trial Courts on the average, would it not  be  part  of  the
responsibility and duty of the Supreme Court of India to examine  through  a
Constitution Bench, the issue of divesting the Supreme Court  of  about  80%
of the pendency of cases of a routine nature, to  recommend  to  Government,
its opinion on the proposal for establishing four Courts of Appeal, so  that
the Supreme Court with about 2500 cases a year instead of about  60000,  may
regain its true status as a Constitutional Court?

23.   Keeping in view the importance of the above  questions  and  the  need
for reforms which have been long felt, we deem it proper to refer  the  same
to a Constitutional Bench for an authoritative pronouncement.  The  Registry
shall, accordingly, place the record before the Hon’ble  Chief  Justice  for
constituting an appropriate bench.

                                                               (T.S. THAKUR)

                                                              (R. BANUMATHI)

                                                          (UDAY UMESH LALIT)
New Delhi;
July 13, 2016.

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