The primary role of the Supreme Court is to determine substantial questions of law relating to the Constitution or otherwise of general importance. Apart from disputes between the States, and some Public Interest Litigations, other cases come in appeal from the High Courts and Tribunals. The Chief Justice has initiated introspection on the need for a National Court of Appeal. At the heart of this appeal lies a fundamental question of substantial importance: Is the Supreme Court doing what it is meant to do? And if not, where lies the fault and where the remedy?
How the Supreme Court worksEvery week, the court spends three days in final hearings of cases, a sedate process where arguments are presented at length. Two other days are meant for admission of fresh cases called Special Leave Petitions (SLPs); in an inverse picture, total bedlam takes over the court. Each Bench of two judges has before it 60 to 70 cases, each with its mass accumulation of bulky case papers gathered over years of litigation in the courts below. The hearing of each case lasts for a couple of minutes or less before the judges decide whether to admit or dismiss it, the latter being the fate of the overwhelming majority. Owing to time and volume constraints, the judges read these papers before the hearing date. A substantial portion of four days of the country’s senior-most judges thus goes in just deciding which cases should join the appeals docket of the Supreme Court. The judges have to pick the cases from an eclectic bunch which prominently includes bail applications, eviction of tenants, dishonoured cheques, employment disputes, child custody, criminal offences — important to the parties no doubt, but not raising the important questions of law meant for the Supreme Court. Being tasked with the filtering process is a waste of the time, experience and wisdom of a Supreme Court judge. It prevents full consideration of the substantive cases before these judges; it reduces the quality of judgments which need to be drafted, crafted, refined and embellished to mark the definitive and lasting pronouncements of law expected from a Supreme Court. And it provides no space for wider reading, for pause and reflection.
Even while rejecting the mass, the admission of some appeals mean that they need to be disposed of. So the court usually sits in Benches of two or three judges on other days to hear and decide these appeals, “to clear the docket’ as the phrase goes. Many of these do involve questions of law, and in several matters the Supreme Court does find that the High Courts or Tribunals have erred. But it is one thing to be a superior appellate court tasked with checking if the lower court has erred, and doing this by revisiting the facts and application of law to the case on hand. It is altogether a different matter to focus on examining a question of law of general public importance and to restate, clarify, change existing precedent, or create a new one. The latter is the seminal interpretative lawmaking that the topmost court needs to do, and which it seems not to be doing.
Paucity of Constitution BenchesThis is illustrated by the current relative paucity of Constitution Benches. These are formed by grouping five or more judges to decide major questions of law. In the 1960s, the court did much of its lawmaking through such Benches; over the years, as the mass of SLPs and ordinary appeals mounted, that number has dwindled to a fractional percentage. These numbers tell a tale which is worrisome; the cases unique to the court are not getting heard, including issues of religious freedom, rights of minorities, the right to privacy, governance, and validity of statutes. Another concern arises when cases of importance are dealt with by just a couple of judges, sfor lack of Constitution Benches. Examples include the decision on consensual sex between adults of the same gender, and the scope of the Information Technology Act. Larger Benches bring more judicial thinking to an issue, a balancing of different points of view and greater authority to the ruling of the court. Another key concern is that of access to justice. A vastly disproportionate percentage of appeals to the Supreme Court come from Delhi and its neighbouring States; for those beyond, the court seems out of reach. While litigiousness should be curbed, distance ought not to be the deterrent.
The problem, looked at from different perspectives, is that the run-of-the-mill appeals clog the Supreme Court. We cannot deny an appellate remedy for the general mass of civil and criminal cases. High Courts can and do make serious mistakes, sometimes egregious ones, and these require rectification. It is this hard fact that forces the Supreme Court to take on such appeals. The answer is to create intermediate courts of appeal where senior judges can deal with these cases, giving them the time and consideration they deserve. These need to be located at different parts of the country, to handle appeals coming from courts in the four compass areas. They can be manned by senior judges retiring from the High Courts at 62 years; this is a large pool with years of good service yet. These courts of appeal will signal the full stop to civil and criminal litigation at large.
We can thus restore the Supreme Court to what the Constitution envisaged, and what an apex court should be — to decide the weighty issues under the Constitution and other laws, with appropriate judge strength, and give the judges the time and opportunity to do their best in the cases which matter most to all of us. It is somewhat surprising that the Centre’s first response to the plea seeking setting up of a National Court of Appeal was that this is a “fruitless endeavour”. Perhaps the Law Ministry and its legal team may like to consult the Bar Associations of all the States; it may find that the predominant voices do not share this barrenness of view.
Sriram Panchu is a senior advocate at the Madras High Court. Email: srirampanchu@gmail.com
