When on Tuesday a five-judge Bench of the Supreme Court ruled that the police must register an FIR in cognisable offences, something relatively rare was taking place — a Constitution Bench was sitting.
The Chief Justice of India has the power to constitute a Constitution Bench — comprising five or more judges — to hear substantial matters of constitutional law. Nick Robinson, a legal researcher at the Program on the Legal Profession at Harvard Law School, who compiled and analysed 50 years of Supreme Court data, found that the number of matters decided by Constitution benches has been steadily falling. From a high point of a yearly average of 134 cases decided by Constitution benches in the first half of the 1960s, the number of such cases decided in the last half of the 2000s fell to its lowest-ever level — an average of 6.4 cases per year.
Simultaneously, the number of regular matters disposed of by the Supreme Court has been rising over the decades, Mr. Robinson’s data shows. The number of regular matters is lower in the 2000s than the 1980s, but is still over double what it was in the late 60s or early 70s.
The data points to a change in the very nature of the Supreme Court, Mr. Robinson told The Hindu . “The falling number of Constitution Bench decisions indicates that the Court is getting distracted by its backlog of thousands of rather mundane cases. It risks falling behind on its core duty as the primary interpreter of the Indian Constitution. There are many pressing constitutional bench matters of national significance waiting to be heard.”
At the same time, the research found that tax, commercial and arbitration cases were being disproportionately accepted by the apex court.
Senior advocate Rajeev Dhawan concurs. “There was a time in the early 1960s when the rate of filings and disposals was nearly the same. Since then the number of litigants has gone up, the number of judges has gone up and the number of disagreements between judges has gone up,” Mr. Dhawan told The Hindu . “Judges have become bent on the question of arrears. But this focus on backlog dissolves quality and decision-making, and what is taken up is heard clumsily.” The administration of the Supreme Court, he said, was not being carried out by professionals.
The matter decided on Tuesday is one of five matters taken up by a five-judge Bench constituted by Chief Justice P. Sathasivam in September this year. The oldest matter (Swasthya Raksha Samiti Rati Chowk v. Chaudhary Ram Harakh Chand, C.A.No.1391/1999) arises out of a 2002 judgment of a three-judge Bench, according to Manish, a researcher at the National Law University, Delhi.