A lot of conversations take place regarding judicial reforms to reduce the pendency (or arrears) in our Courts. From the adoption of artificial intelligence to use of alternate dispute mechanisms, it seems to be all hands-on deck to keep the ship from taking on too much water.
In the times of COVID-19, the judiciary had the opportunity to reexamine the existing traditions and norms and while it seems to have done so to a certain extent by the use of e-filing and virtual hearings, a temporary overhaul could have been experimented with.
For example, the curtailment of oral arguments which is one of the most popular reasons for the pendency.
But, if we are talking about an overhaul, it would require the stakeholders to go back to the drawing board and say that the current measures are not enough and that more needs to be done and it needs to be done on a war footing.
Let us start with the Supreme Court, sitting at the top of the pyramid. The number is currently slightly above 62,000 and does not seem to be slowing down. In the larger scheme of things, 62,000 is not a lot considering there are approximately 3.7 crore cases pending throughout Courts in India. But 62,000 cases for the Apex Court of a country is far too many for it to deal with in an efficient manner.
The focus is on the cases that come up for admission before the Court. It is nothing short of a spectacle. Sixteen division benches sitting simultaneously on Mondays and Fridays just to hear cases for admission.
Each division (or three judge) bench hearing 40-60 matters which means at the very least, the Court is hearing 1,280 matters for admission per week.
The bulk of these matters are the Special Leave Petitions (“SLPs”) under Article 136 of the Constitution of India which provides the Supreme Court superhero-like powers of interference with decisions of any Court or Tribunal in the territory of India. This power extends to any judgment, determination, sentence or order passed by a Court or Tribunal.
The first thing that comes to mind on seeing this provision is that it is a discretionary jurisdiction which means it would be exercised sparingly and carefully, right?
Wrong.
To put it in a nutshell, the Court issues notice or admits, a whopping 40% of the SLPs that are filed.
To put it in contrast, the Privy Council the predecessor of the Supreme Court in terms of exercising discretionary jurisdiction dismissed around 99% of the petitions for Special Leave against decisions of the Federal Court and the various High Courts, according to Bakshi Tek Chand, a member of the Constituent Assembly.
Further, even a present day comparison of admission of cases by Apex Courts of common law countries like the United States and Canada reveals a rate of admission much lesser than 40%.
The Supreme Court of the United States receives approximately 8,000 certiorari petitions seeking a hearing on merits and out of these the Court grants an oral hearing to 80 of those cases based on an elaborate process of scrutiny.
This allows the Court to focus its energies on these selected cases rather than spreading itself too thin.
This is not a recent problem and the docket has constantly been expanding. As early as 1985, a Constitution Bench in the case of Bihar Legal Services Authority v. Chief Justice of India ((1986) 4 SCC 767) stated that,
“..every case where the Apex Court finds that some injustice has been done that it would grant special leave and interfere.
That would be converting the apex court into a regular court of appeal and moreover, by so doing, the apex court would soon be reduced to a position where it will find itself unable to remedy any injustice at all, on account of the tremendous backlog of cases which is bound to accumulate."
There was even a warning put forth by the Court soon after our Constitution came into force, in the case of Pritam Singh v. The State (AIR 1950 SC 169) where the Court, cognizant of the immense discretionary power bestowed upon itself, emphasised the need to exercise its special leave jurisdiction in “exceptional” and “special” circumstances.
It is safe to say this guideline has been neglected and discarded over the last 70 years by the Court as there has been no degree of self-restraint or predictability in the way the Court would admit a matter for hearing.
This problem has been compounded by the Court sitting in multiple benches functioning as a polyvocal court which means that the fate of a petition depends upon the bench before which the same is listed and therefore the admission of an SLP was termed as a “gamble” by M.C. Setalvad in his autobiography.
The problem with the functioning of the SLPs is that they were meant to be the exception, but they wound up being the norm. As per the Constitutional scheme, appeals were to be filed by obtaining the necessary certificate from the concerned High Court as per the mandate of Articles 132-134.
So why is it preferred to approach the Supreme Court via the Article 136 route? The answer would probably lie in the scope of Article 136 as noted above.
First, the provision contemplates appeals from Tribunals and any Court in the territory of India, while Articles 132-134 only provide for appeals from the High Courts.
Second, Articles 132-134 refer to appeals from final orders or judgments but, Article 136 encompasses appeals from any order or judgment which would include even interlocutory orders.
Interestingly, in the original provision in the draft Constitution which gave the Supreme Court the power to grant special leave to appeal only applied against a ‘judgment, decree or final order’, i.e. not against interlocutory proceedings.
However, in October 1949, T.T. Krishnamachari introduced an amendment which completely replaced that provision and allowed special leave petitions to be filed against any ‘judgment, decree, determination, sentence or order’.
Judicial Cognizance
It cannot be said that the Supreme Court, in recent times, is not aware of the harmful effects of frivolous SLPs. In Mathai @ Joby v. George ((2010) 4 SCC 358), a Division Bench of the Court expressed its displeasure at the filing of SLPs against every kind of order.
The Court pointed out that the under the constitutional scheme, the last court in the country in ordinary circumstances was meant to be the High Court. This view has been endorsed by two respected former judges of the Supreme Court, Justices Chelameswar and Sikri and the opinion held by them was that the High Courts must be the final arbiters of disputes relating to land laws, tenancy and laws enacted by the State Legislatures.
The Division Bench in Mathai referred the question of discretion under Article 136 and how it should be exercised to a Constitution Bench and the same was dismissed summarily by a Constitution Bench headed by Justice Anil Dave and the opinion of the Court was summarised in the following words,
“Upon perusal of the law laid down by this Court in the aforesaid judgments, in our opinion, no effort should be made to restrict the powers of this Court under Article 136 because while exercising its powers under Article 136 of the Constitution of India, this Court can, after considering facts of the case to be decided, very well use its discretion.
In the interest of justice, in our view, it would be better to use the said power with circumspection, rather than to limit the power forever.”
After a disappointing dismissal, hope vanished but was restored soon after. Merely 3 months after the dismissal, another bench of the Supreme Court headed by then Chief Justice Thakur in V. Vasanthakumar v. H.C. Bhatia ( 2016 SCCOnline SC 698) conceded that there were certain facts beyond dispute, that is to say the filing of cases in the Supreme Court over the past six decades has grown so sharply that the judge strength in the Supreme Court is proving inadequate to deal with the same.
Further, the pronouncements of the Court sounding notes of caution against liberal grant of special leave to appeal or exercise of restraint in the matter of entertaining cases have led to no meaningful improvement in the situation.
In light of this, the bench referred 11 questions to a Constitution Bench for an authoritative pronouncement on the need for a system of Court of Appeals to absorb the appellate functions currently being exercised by the Supreme Court amongst other associated issues.
Conclusion
Legal luminaries like Mr. K.K. Venugopal and the late Mr. T.R. Andhyarujina are in favour of a system of Court of Appeals between the High Courts and the Supreme Court to allow the Supreme Court to function as a purely Constitutional Court.
This would be a similar system as that which is prevailing in South Africa which has a Constitutional Court and a Supreme Court of Appeal. But recently, the Union Minister of Law and Justice stated clearly that the idea of opening a separate bench of the Apex Court outside Delhi has not found favour with the Supreme Court of India.
This in effect means that the recommendation of the 229th Law Commission Report to set up a Constitution Bench at Delhi and four cassation benches (Court of Appeals) in the northern region at Delhi, the southern region at Chennai/Hyderabad, the eastern region at Kolkata and the western region at Mumbai has been rejected by Supreme Court.
Another problem that might be faced while establishing Court of Appeals is the ever-looming spectre of the basic structure doctrine and this was one of the issues raised by the bench in Vasanthakumar’s case.
It is also to be noted that the reversal rate of High Court judgments is alarmingly high, i.e. around 60% which raises a lot of doubts about the quality of judgments being delivered.
But the caveat that comes attached to this statistic is that this does not mean that the Supreme Court was correct in reversing the High Court judgment in all instances.
At all levels in the judiciary, there are issues that need addressing and they are being dealt with. The Supreme Court as the captain of the team must lead by example and exercise institutional restraint in admitting cases before itself.
If the world’s most ‘powerful’ Court is to continue being regarded as powerful, it may serve well to remember Isabella’s plea to Angelo for her brother’s life in Shakespeare’s Measure for Measure ,”O, it is excellent to have a giant’s strength, but it is tyrannous to use it like a giant”.
(The author is a Law Researcher at the Delhi High Court and graduate of the National Law University Jodhpur)