The recommendation of the Law Commission that a Constitution Bench of the Supreme Court of India be set up in Delhi and four Cassation Branches of the apex court established for four regions at Chennai (or Hyderabad), Mumbai, Kolkata, and Delhi may have to confront many a roadblock. With frontal opposition from Chief Justice K.G. Balakrishnan and the other judges of the Supreme Court and reservations expressed by Attorney General Ghoolam Vahanvaty, the proposal that has been in public discourse for over 25 years now may, in all probability, return to the backburner.
Disagreeing with the Law Commission's recommendation, the Chief Justice asserted that he did not favour the “disintegration” of the Supreme Court. He added: “Personally I feel the Supreme Court cannot be in any other part of India. This is the highest court of the land. It is in the capital city.” The Attorney General, whose opinion was sought by the Union Ministry of Law and Justice, has reportedly said that the recommendation was “not workable.”
Such conservatism is not surprising. The legal and judicial establishments took a similar stand when two Law Commission reports and several reports of the Standing Committee of the Ministry of Law proposed the decentralisation of the court. This was with a view to clearing the backlog of cases, reducing the transport and other expenses of poor litigants, and taking justice closer to the people in remote areas. The Law Commission Report 229, which contained the recommendation, was formally forwarded to the Union Minister of Law and Justice, Mr. M. Veerappa Moily by Justice A.R. Lakshmanan, Chairman of the Commission and a former judge in the Supreme Court, on August 5, 2009. In the accompanying letter, the chairman explained: “We are today also in dire search for solution for the unbearable load of arrears, under which our Supreme Court, is functioning as well as the unbearable cost of litigation, for those living in far-flung areas of the country ... The agonies of a litigant coming to New Delhi from distant places like Chennai, Thiruvananthapuram, Puducherry in the South, Gujarat, Maharashtra, Goa in the West, Assam or other States in the East to attend a case in the Supreme Court can be imagined; huge amount is spent on travel; bringing one's own lawyer who has handled the matter in the High Court adds to the cost; adjournment becomes prohibitive, costs get multiplied.”
Nonagenarian V.R. Krishna Iyer, a former Supreme Court judge and one of India's most distinguished jurists, was critical of the Chief Justice's stand on the issue. Only two days earlier Mr Krishna Iyer had presented a strong case for regional benches of the Supreme Court. (“Questions of judicial access,” The Hindu, February 2). In an “open letter,” he commented: “If only the Chief Justice remembered the days when the weaker sections of India's communities [were] in want and the masses of mankind [were] in misery, struggling even to reach school ... he could not have forgotten how difficult it is for them to seek social and economic justice in the Supreme Court ...” The 18th Law Commission has drawn on earlier studies to strengthen its argument. It was in 1984 that the 10th Law Commission took up the issue of the division of the Supreme Court. Its 95th report titled “Constitutional Division within the Supreme Court – A proposal for” recommended that the Supreme Court of India should consist of two Divisions, a Constitutional Division, and a Legal Division. The first should be entrusted with matters of constitutional law, that is, 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 other case involving a question of law. Other matters coming to the Supreme Court would be assigned to its Legal Division. However, the 10th Law Commission did not pursue the radical idea since it needed several constitutional amendments. The 11th Law Commission, in its 125th Report titled “The Supreme Court – A Fresh Look” submitted in 1988, reiterated the proposal to split the Supreme Court into two. This Commission also took up for study questions relating to inordinate and indefensible delay in delivering justice to the people. As on March 1, 2007, there were 41,078 cases pending in the Supreme Court.
What one can see in respect of studies relating to the much talked about judicial reforms is this. The blueprint is there but there is no follow-up, no judicial or political will to do anything to reform the system. The Indian judiciary's do-little record on these serious matters is truly shocking.
Under such circumstances, one can see why the law's unconscionable delays cannot be reduced, let alone eliminated, and why justice is beyond the reach of the poor.
But it is not just the poor who are the sufferers. A classic example of the tardy judicial process holding up implementation of practical solutions is what has happened to the final award of the Cauvery Water Disputes Tribunal (CWDT), which came three years ago. The Inter-State Waters Dispute Act, 1956 bars any court, including the Supreme Court, from having or exercising jurisdiction “in respect of any water dispute which may be referred to a Tribunal under this Act.”
An amendment to the Act in 2002 provides further that “the decision of the Tribunal, after its publication in the Official Gazette by the Central Government ... shall have the same force as an order or decree of the Supreme Court.” Despite this, the award could not be enforced. This was because the issue has been taken to the Supreme Court by the parties to the dispute, beginning with upper riparian Karnataka. The law's delay stands in the way of bringing the dispute to an end. Apart from this, the indiscriminate issue of stay orders on flimsy grounds often affects common people.
The unfortunate fact is that the news media have not been able to make any real difference to this situation. Even worthwhile projects such as the creation of regional benches of the Supreme Court fail to get media attention. The failure of the regional parties to welcome the Law Commission's recommendation and press the central government to expedite the scheme in the larger interest of the region can be taken up by the media. Most important, serious newspapers and news television must go deep into the question of how much the law's delays costs the nation and how justice continues to elude the non-privileged citizen.