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Updated: February 28, 2014 18:38 IST

Restoring the Supreme Court’s exclusivity

T. R. Andhyarujina
Comment (25)   ·   print   ·   T  T  
The Hindu

The country’s highest judicial institution has lost its original character by a vast self-enlargement of its jurisdiction that has virtually turned it into a general court of appeal

The Supreme Court of India is perceived by the lay public as the most potent institution in the Constitution by its appellate authority over all courts and tribunals and by its striking orders correcting and supervising government actions. In the public euphoria over this functioning of the Supreme Court, there is no awareness that the Supreme Court has radically changed its character and stature which was prescribed by the makers of the Constitution.

When the Supreme Court was established in 1950, the Constitution conferred on it limited but important functions of deciding cases involving fundamental rights, cases of Constitutional importance and substantial questions of law of general importance. The Supreme Court was given a residuary power to grant special leave to appeal, in its discretion from any judgment of any Court or Tribunal (Article 136 of the Constitution) sparingly and in exceptional cases. The Supreme Court was not to be the apex court to decide ordinary disputes between litigants. Only exceptionally, such disputes between litigants would be decided by the Court. The lower courts and the High Courts were considered as generally competent and adequate for the dispensation of justice between litigants.

Small and compact

Consistently with this restricted jurisdiction of the Supreme Court, the Constitution provided that the Supreme Court, like Supreme Courts in other jurisdictions, would be a small, compact court of the Chief Justice and not more than seven judges unless Parliament otherwise provided. Further, as substantial questions relating to the interpretation of the Constitution were of the utmost importance, the Constitution provided that such questions should be decided by large benches of judges and the minimum number of judges who were to sit for deciding such questions should be five.

From 1950 to about 1990, the Supreme Court generally retained this character comparable to the character of Supreme Courts in other jurisdictions. Special leave to appeal from a decision of a High Court or tribunal was sparingly given in the discretion of the Court. The composition of the Court was of benches of three judges, and five judges and, exceptionally, benches of seven judges and even 13 judges, as in the famous case of Kesavananda Bharati, decided important cases.

Progressive dilution

Today, all this has changed. The Supreme Court of India has lost its original character by a vast self-enlargement of its jurisdiction making itself a general court of appeal by routinely entertaining special leave petitions between litigants which do not involve important constitutional issues or issues of law of general importance. Up to June 2013, 35,439 special leave petitions which do not involve such issues are pending in the Court. Public Interest Litigation (PIL), which was laudably innovated by the Supreme Court in 1970 to redress the rights of disadvantaged sections of the society, has been converted into litigation for correcting government actions from corruption scams to banning tinted glasses on automobiles. Writ petitions to enforce fundamental rights under Article 32 of the Constitution are less than one per cent of the petitions annually admitted by the Court.

Cases of constitutional and national importance have been sidelined and not heard for years. The last major Constitutional case with a bench of nine judges was decided in 2007 in I.R. Coelho vs. State of Tamil Nadu which considered Parliament’s power to amend the Constitution by including statutes in the Ninth Schedule of the Constitution. Important Constitutional cases referred to nine judges such as the scope of Interstate Trade, Commerce & Intercourse, the right of States to tax minerals have not been heard for several years. At least five cases for consideration by seven judges, and 36 cases for consideration by a bench of five judges are pending for several years. Only 15 cases were decided by five judges between 2011 to 2013.

Bench strength

With the increasing load of appeals from High Court decisions the number of judges have had to be increased periodically from eight judges in 1950 when the Constitution came into force to 31 in 2008. Presently, the Supreme Court is composed of one bench of the Chief Justice’s Court of three judges and 13 or 14 benches of two judges in 13 or 14 courtrooms sitting regularly day after day. In no Supreme Court of other jurisdictions are there benches of 13 to 14 courts of two judges each as the Indian Supreme Court now has. Supreme Courts of other jurisdictions such as the United States, the United Kingdom, Canada, Australia and South Africa sit either en banc, i.e. of its full strength, or in large benches of five or more judges considering the importance of the case, as such a large composition of judges is considered fitting for deciding important cases in the highest court.

By contrast, the Supreme Court of India today decides cases of major importance by benches of two judges. Recently, the Supreme Court nullified Section 8(4) of the Representation of the People Act, 1951. This important decision on the interpretation of Parliament’s legislative powers on members of legislatures convicted of offences was delivered by a bench of two judges of the Court despite the Constitutional requirement that substantial questions of interpretation of the Constitution should be decided by not less than five judges. Important policy matters are decided by a bench of two judges of the Court. In the 2G Spectrum Case, a bench of two judges prescribed a national policy for disposing of all public resources by public auctioning. A bench of two judges has laid down the law in the vexing cases of inordinate delay in the disposing of petitions for clemency by the President in death penalty cases. The important question of decriminalising homosexuality under the Indian Penal Code has been heard, and the judgment which is reserved will be given by a bench of two judges.

When Sir B.N. Rau, the Constitutional Advisor at the time of the framing of the Constitution met Justice Frankfurter of the U.S. Supreme Court, he was told by Justice Frankfurter that the jurisdiction exercisable by the Supreme Court should be exercised by the full court and the highest court of appeal in the land should not sit in divisions. The Drafting Committee of the Indian Constitution also drew attention to the practice in the U.S. Supreme Court of not sitting in divisions and how the judges of the Supreme Court of the U.S. attached the greatest importance to this practice.

Separate court

In most of the other Supreme Courts, the cases decided by them are few and are of constitutional and national importance leaving the lower Courts to decide finally the cases which the Supreme Courts do not consider deciding to overload themselves with. The Supreme Court of the U.S. selects from among 7,000 petitions for certiorari (admission) around 100 cases in which certiorari is granted. On an average per year about 80 cases are decided by the Supreme Court of the U.K., the Supreme Court of Canada and the High Court of Australia. The Constitutional Court of South Africa — which has been ably functioning since 1994 deciding major constitutional cases and cases of national importance — decides on an average 38 cases per year. In contrast in 2012, the Supreme Court of India decided 898 cases, with few cases of constitutional or national importance.

The Supreme Court of India understandably is compelled to take up cases from 24 High Courts whose judgments increasingly require correction, and litigants have no forum for their correction except the Supreme Court. In this situation, the only solution to preserve the exclusivity and standing of the Supreme Court is to create a separate national court of appeals distinct from the Supreme Court in which appeals from High Courts and Tribunals can be entertained. Such a provision for a Supreme appellate court at the highest level distinct from a Constitutional Court is provided by the Constitution of South Africa. Simultaneously, the number of judges of the Supreme Court can be reduced from 31 to a smaller strength and the Court can function with benches of three and five judges as it functioned earlier. Above all, it is imperative to create awareness by lawyers, judges and informed public opinion of the necessity for restoring the character and standing of our Supreme Court comparable to the Supreme Courts in other jurisdictions.

(T.R. Andhyarujina is a senior advocate of the Supreme Court and former Solicitor General of India.)

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Functioning of SC has changed either in terms of jurisdiction or in
terms of bench strength. All fundamentals of justice delivery have
changed with time.
In 1950 , when SC was established then it was decided
constitutionally that it will entertain the cases of fundamental
rights, constitutional importance, public issues etc.
PIL'S OF national importance have not been heared for years due to
lack of decision taking capability on part of HC. So , I think an
ammendment in current constitutional provisions is mandatory to compel
HC to take fast decision and shrewd decision without being influenced
by political status or bribery etc.
which in turn will reduce the workload of SC,as there are thousands
of cases of national importance are pending in SC.
Another issue is bench strength i.e,if we compare with 1950 there is
a spiral rise in SC judges and its benches in current scenario which
in turns shows a rosy path to HC to walk slowly and casually.

from:  richa gupta
Posted on: Sep 2, 2013 at 00:00 IST

The most inglorious article i have ever read in The Hindu. this article
shows lack of insight of author in terms of number of cases that are
pending in SC due to vastness of area & population of country. Author is
taking example of those countries that doesn't count much in terms of
World's population.

from:  Sonu Bhatt
Posted on: Aug 31, 2013 at 17:31 IST

The author has very clearly presented the motive of the
constitutional framers to create supreme of India and enlarged
and overburden jurisdiction of SC nowadays. To reduce the
overburden, author has suggested to create alternative supreme
appellate court paralleled supreme constitutional court. The
creation of new court at apex to review the high court will
itself endorse that high courts are not performing their duty
efficiently. It may create in-trust in high courts. It may be
dangerous move which may break 67 years of trust in judiciary. It
will be better if selection procure for chief judges and judges
of high court should make more transparent and competitive.
Government should vest more jurisdiction in high court and SC
should stop entertaining beyond its original format.

from:  Murari Sharan
Posted on: Aug 31, 2013 at 16:06 IST

Well written article by a great jurist. Why there are so much appeal
to Supreme Court of India is incompetency of high court judges in
dealing with the cases. There is no straight jacket formula in Indian
courts including the Supreme Court. In higher judiciary one judge
accepts a point and the other judge reject the same. The lower
judiciary is not following the judgments of higher courts in its
letter and spirit which lead to further appeals. Earlier days, High
court's dealt with the case with utmost importance having in their
mind that the High Court is the Last court of appeal in the State and
the High Court has to do substantial justice to the litigants. Now a
days the quality of judges are not up to the mark which lead to further appeals.Therefore the quality of
judiciary has to improved to end further litigants. Further in those
days if an advocate opined that it is not a fit case for appeals
clients accepted.

from:  Sankar Iyer
Posted on: Aug 31, 2013 at 14:07 IST

Though authors concerns are valid with the arguments he had given ,
but still he cannot doubt on the credibility of the highest level of
indian judiciary. we are a sovereign country ,we are controlled by
ethics and values and not be the tail of any one. so no need to
compare ours court with the others.
Regarding no of judges , it should not
matter whether the judges are 2 or five , because the 2 of them have
the nobility and wisdom to clearly interpret the influence of their
decision on the welfare of any every section of the society.

from:  Nimish
Posted on: Aug 31, 2013 at 12:37 IST

Our constitution framers also must not had envisaged the manner in which Parliament is functioning today. They also must not had envisaged the widespread corruption prevailing in the executive system. It is not a surprise to believe that in this case power will shift to the judiciary and getting manifested in various forms be it PILs or other leave petitions. SC can't be blamed if the faith of people in other institutions of our democracy has declined.

from:  Kundan K
Posted on: Aug 31, 2013 at 12:33 IST

the article hints increasing number of high court orders getting corrected by the supreme court -why so ?
does the supreme court feels there is arbitrariness in HC orders?

if the SCI starts filtering like US counterpart the cases involving affluent parties will go through since they can present their case using so called BETTER advocates

why our intellectuals always quoting Americans when they are arguing for something?

from:  manoj
Posted on: Aug 31, 2013 at 11:57 IST

I believe that we need to have strict judicial accountability law in order to get the fair judgements from high courts to litigants. This will in effect reduce the litigants going to supreme court for justice and Supreme court can very well funtion in its jurisdiction.

from:  Praveen Sharma
Posted on: Aug 31, 2013 at 11:47 IST

I would hardly use the US Supreme Court as a model for India to follow as it is a thoroughly politicized body petrified in its thinking and out of touch with public opinion.

Adding another layer of judicial bureaucracy will only create more delays in the delivery of justice. The current approach of the Indian Supreme Court is to deliver peremptory justice very much along the lines of the medical care provided by the barefoot doctors of yore. This is what the common man needs; a court of final resort delivering speedy justice, not one smothered in pomp and circumstance, aloof from the public, and rendering rarefied constitutional opinions that the denizens of the Lok Sabha will immediately over ride, a vile practice that does not occur in the countries mentioned by the author.

from:  thampi
Posted on: Aug 31, 2013 at 11:33 IST

While author's concern is valid, all these constitutional extensions
depend on the quality of democracy, governance prevalent in the nation.
People only want high quality timely judgments and the PM and President
too must abide by it, respect them. (without initiating amendments).

from:  Vyas K Susarla
Posted on: Aug 31, 2013 at 11:14 IST

Yes ! We are all appalled by our collective indiscipline and scant respect to first ethics ,and
then, the laws of the land, starting from the unlettered individuals to the highly educated (
foreign universities included) parliamentarians and legislators ,we have sunk to such an
abysmally low level that we have to look to the Supreme Court to "redress the rights of the
disadvantaged sections of the society" through " correcting government actions from scams
to banning tinted glasses ". In 1950 , the framers of the constitution did not have any idea
even in their worst possible dreams that after 67 years , independent India would have to
legislate on food security,or a weak , vote for cash or vice versa, corrupt system of
governance under the clutches of coaltion compulsions, criminals gaining access to
parliament and legislative bodies and ganging up against their very electors. A lean judiciary
and a lean police force in today's Indian context are mere pipe dreams.

from:  Shekar
Posted on: Aug 31, 2013 at 11:13 IST

This trend has been there for more than a decade because executive decisions are simply passed onto the judiciary due to politics &due to"putting in place" a nepotic policy that violates constitutional laws/rights & are getting challenged by few public spirited persons via PILs on a daily basis.The record of Implementation of several final SC orders,(the top court of india)is very poor.Even SC is not
seen concerned about this &no "mission" is there to restore the
prestige/dignity of SC.

from:  ramachandrasekaran
Posted on: Aug 31, 2013 at 10:33 IST

There can be a Supreme court of Appeal which will only decide appeals
from litigants not satisfied with High Court decisions.There again
instead of taking it, as a matter of routine, the court of appeal can
have a stricter guide lines to admit cases with out loosing the object
of fair dispensation of justice.
The existing SC can only deal with "fundamental rights, cases of
Constitutional importance and substantial questions of law of general
importance"
With lakhs of cases pending in higher judiciary, bifurcation of the SC
will be of great help in liquidating pending cases.

from:  KRISHNAN V
Posted on: Aug 31, 2013 at 08:50 IST

The article rightly expressed the sad fact. Supreme court is indeed responsible for policy paralysis. One side corrupt politicians, other side judicial overreach, Indian economy is struggling to come out. Atleast corrupt politicians are exposed but judicial overreach remains unquestioned.

from:  Vignesh K
Posted on: Aug 31, 2013 at 07:43 IST

Today, the SC is the counter balance to lend a semblance of sanity in our attempt at democracy

from:  SujithP
Posted on: Aug 31, 2013 at 07:23 IST

this appears to be correct appraisal of the current work of the
aopreme court.We could only compare to the head of religious mutts who
give
private audience to thousands of devotee flock in the mutt and seek
audience to him.they pour out all the family problems including the
education of their children,marriage of their daughters,problems of
the husbands and also financial investments etc.Here also the Heads of
the mutts are expected to suggest solutions for their spiritual
journey
and the devotees every thing else except that.We do not want supreme
court to be faced with similar problems of the people.

from:  T.S.Gopalakrishnan
Posted on: Aug 31, 2013 at 06:48 IST

I too have been reading a lot of verdicts by our SC since many months.I'm glad THE HINDU has boldly come out to express the discomfort on this. There are thousands of cases pending in various courts including the SC,that need urgent attention and disposal without any political bias.Wish all our courts work as one team of legal experts and carry out the justice - the need of the hour.

from:  V.Sivasubramaniam
Posted on: Aug 31, 2013 at 06:44 IST

It is disheartening to note that the legislative assembly - be it
Parliament or of any state- is repeatedly insulting the court, which is
the last resort for common man. In case of black-money and that of
criminal politicians, the elected representative had done and continues
to do enormous damages to this institution. The lack of "gentlemen" in
politics is very much felt. The tragedy of Indian politics is that the
elected representatives are not patriotic at all.Sad indeed!!

from:  Viswanath
Posted on: Aug 31, 2013 at 05:42 IST

How does it help in having two courts, a National Appeals Court and a Supreme Court, instead of just the Supreme Court that we have now? Pray, why has the Supreme Court not heard more cases of national importance or constitutional significance? Have they declined any because they have a tranche of cases of lesser significance? It makes no sense to change for the sake of exclusivity

from:  Eshwar
Posted on: Aug 31, 2013 at 05:16 IST

Root cause of this bulky and exhaustive jurisdiction is the populous condition of our country leading to much more litigation appeals which cant be matched with South African constitution or any other for the constitutional amendments.
Acc to me,this situation can be overcome by setting up scruitiny dept. for allowing only potent appeals to be passed to supreme court and rest can be appealed in HC or apex court..

from:  Rajat
Posted on: Aug 31, 2013 at 03:40 IST

A well written article. All the points he has raised backed by evidence
shows the authors training and his ability to make powerful arguments
supporting his case. I hope the SC takes notes of this, if not in due
course it will become a clearing house for lower court decisions. I also
feel the author could have written about the incompetency and corruption
in the lower courts and because of which appellate courts have to
intervene more that it wants to. My congratulations to the writer.

from:  Ananthan
Posted on: Aug 31, 2013 at 03:06 IST

I have difficulty understanding why Supreme court is compelled to take
cases decided by high court. Either Court management is very poor or
high courts judges are not following constitution provisions, dos not
respect previous judgments or they are influenced by political pressure
or bribery. Either way supreme court it not doing its job. Supreme court
should only takes cases that involved only constitution questions and
should fix high courts to make sure that it functions and deliver
judgments bases on constitution of India

from:  Kirit Shah
Posted on: Aug 31, 2013 at 02:04 IST

The real issue is rampant incompetence of lower courts,and of high courts in these days.

from:  Rahul
Posted on: Aug 31, 2013 at 01:45 IST

The increasing incidence of litigants approaching the Supreme
Court is because of the high standing & esteem that court enjoys,
and conversely the reduced standing and esteem of the subordinate
courts, at least in the eyes of the people. This is a sad
situation for sure, but is indicative of a decline in the general
standards of administration in the country. At the time of
independence from our colonial masters, a judge of the high court
was paid Rs 4000 a month, a princely sum in those days. Today,
judges are paid a mere fraction of what a good private solicitor
can hope to earn.

I am increasingly impatient with the practice of alluding to or
quoting judges of the USA or UK when buttressing legal arguments
in India. An independent nation does not need to do this.
Specifically in the US, judges are chosen according to their
political and ideological leanings. It is no wonder that they
feel the need to have a full court in attendance so that the
judgments are ideologically balanced!

from:  CS Venkat
Posted on: Aug 31, 2013 at 01:29 IST

The article is laudable for the in depth study of the subject though it is silent on few imp aspect. The author is conveniently silent on:

1) the debate over SC's role cannot be divorced from the pending number of cases and the corruption in the lower judiciary. And considering mammoth size of the both, SC cannot shy away from being highest court of appeal and guaranteeing justice to the subjects.

2) judicial activism has been the outcome of such constitutionally unimportant individual cases such as Visakha judgement, Shah Bano case

3) Creating separate national court presumes that we can divide cases into watertight compartments of nationally-constitutionally imp cases and 'other' cases. In practice, this isn't the case. Plus, won't it lead to creation of additional layer of judiciary - thus more bureaucracy and more delays in the justice delivery?

We are the largest democracy with 1.2bn people. Perhaps more urgent need is to diversify SC benches to different corners of India.

from:  Mahesh J
Posted on: Aug 31, 2013 at 01:27 IST
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