REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO.36 of 2016
V. Vasanthakumar ...Petitioner
Versus
H.C.Bhatia and Ors. ...Respondents
J U D G M E N T
T.S. THAKUR, CJI.
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
perspective.
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:
“Solution
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
consideration:
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
justice?
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
description?
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
Constitution?
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.
.................CJI.
(T.S. THAKUR)
...................J.
(R. BANUMATHI)
...................J.
(UDAY UMESH LALIT)
New Delhi;
July 13, 2016.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO.36 of 2016
V. Vasanthakumar ...Petitioner
Versus
H.C.Bhatia and Ors. ...Respondents
J U D G M E N T
T.S. THAKUR, CJI.
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
perspective.
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:
“Solution
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
consideration:
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
justice?
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
description?
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
Constitution?
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.
.................CJI.
(T.S. THAKUR)
...................J.
(R. BANUMATHI)
...................J.
(UDAY UMESH LALIT)
New Delhi;
July 13, 2016.
