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.
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.
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.
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.)