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Fewer constitutional matters in SC

New findings point to growing proportion of routine appeals

Just 7 per cent of the judgments passed by the Supreme Court last year dealt substantially with Constitutional matters, an analysis of the court’s rulings has shown.

The new findings, alongside earlier ones by legal researcher Nick Robinson, point to the growing proportion of routine appeals in the apex court's workload as against core Constitutional matters.

The problem, senior advocate Rajeev Dhawan said, is structural. “I have suggested that the SC’s Benches should be split into three separate divisions — public law, civil law and criminal law,” he said.

Supreme Court advocate K.V. Dhananjay and his team of a dozen lawyers in Delhi and Bangalore analysed 884 of the 888 final judgments by various benches of the SC handed down in 2014. He shared the findings exclusively with The Hindu . In all, 64 judgments fitted the description of dealing with a Constitutional question. Only 14 of these involved a five-judge Bench.

Last year, Mr. Robinson, Research Fellow at Harvard Law School’s Centre on the Legal Profession, in his analysis of 50 years of Supreme Court data, had shown that the number of matters decided by Constitution Benches — comprising five or more judges to hear a substantial question of law — was falling steadily. In the second half of the 2000s, Constitution benches heard an average of 6.4 matters per year, the lowest ever level.

Mr. Robinson also found that despite the SC’s reputation in the public imagination as the arena for public interest litigation, less than 2 per cent of the SC’s admission matters in 2011 were writ petitions. The bulk of the SC’s workload was appeals from the High Courts, known as Special Leave Petitions, which made up 85 per cent of its admission matters. While the proportion of writ petitions has fallen steadily, that of SLPs has risen steadily over time, Mr. Robinson found.

SLPs too might, however, deal with a core Constitutional issue, Mr. Dhananjay’s analysis found. “The Supreme Court is increasingly saying — don’t come to us directly, and go to the High Courts first. The problem is that the standards of High Courts are so bad and uneven,” Mr. Rajeev Dhawan said. “It might take up cases directly as well, and it tends to do so in two major areas — corruption and environment and forests. These are Constitutional matters, but one can argue there are many other Constitutional issues too,” he said.

To isolate “Constitutional matters”, Mr. Dhananjay and his team looked at disputes over the interpretation of a provision of the Constitution, and challenges to a law or executive decision on the grounds that it was inconsistent with a provision of the Constitution. Not all cases that cited a Constitutional provision necessarily involved a Constitutional question, the team determined. As a result, there is an element of subjectivity to the classification, Mr. Dhananjay said.

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