Introduction:
In 2016, a PIL was filed before the Supreme Court, highlighting the need for a structural overhaul at the topmost level of the Indian judicial system. The petitioner sought a writ of mandamus directing the Government of India to take steps towards the establishment of a National Court of Appeal with regional benches in certain parts of the country. The Supreme Court acknowledged that the volume of cases that it has been dealing with has increased substantially over a period of time and that the current Judge strength in the Court is not sufficient to handle this influx of cases. Taking into account that the conversations around the need for reform in the judicial system of the country have been going on for a long time, the Court while referring the matter to a Constitutional Bench for a comprehensive decision, framed eleven substantial questions of law mainly focusing on the issues pertaining to – access to justice; undue delay and pendency of cases; division of Supreme Court into a Constitutional wing and an appellate wing; and the feasibility of establishing regional benches of the Supreme Court.
Conversations around the idea:
This conundrum regarding the need for change in the configuration of the Supreme Court is not something that has appeared out of nowhere. Article 130 of the Constitution of India says that “The Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint”. So, by virtue of this provision, the Constitution does provide a mechanism whereby the Supreme Court can maximize its reach and not just remain confined within the contours of the National Capital.
Further, in the year 1986, in the case of Bihar Legal Support Society Vs. CJI & Anr, Justice Bhagwati had expressed the desire of bifurcating the functions of the Supreme Court, wherein there would be a National Court of Appeal primarily looking at appeals by special leave from the decisions of the High Courts and the Tribunals and the apex court in its present form would be restricted to entertain cases involving questions of Constitutional and Public law.
The Law Commission of India in various reports has also recommended the separation of the Constitutional and legal functions of the Supreme Court ( 95th Report, 1984) as well as emphasized the need to set up regional benches of the Court to increase its accessibility (125th Report, 1988). Thereafter, in 2009, in its 229th Report, the Commission recommended setting up four cassation benches, divided into North (New Delhi), South (Chennai), East (Kolkata), and West (Mumbai).
Even the Executive at various points in the past has exhibited an inclination towards such a modification. In 2019, Vice President Venkaiah Naidu advocated for the need for regional benches of the Supreme Court in at least four major cities. Thereafter, in March 2021, the Parliament Standing Committee on Personnel, Public Grievances, Law and Justice in its 107th report, while reiterating the recommendations of the Law Commission, emphasized the need for easy access to justice which would only remain a distant dream as long as the Supreme Court was out of reach for people from far-flung and remote areas of the country.
If one tries to understand the cumulative effect of these proposals, the dominant idea that seems to emerge is that there should be a functional division of the Supreme Court whereby the apex court will function in two distinct capacities: Constitutional and legal, with regional benches at certain major cities to make the Supreme Court readily accessible to people residing across the length and breadth of the country.
Time for a decisive step:
There are essentially two primary arguments that can be put forward in support of the need for this reform. First, is the principle of access to justice, and second, the dilution of the Constitutional functions of the Supreme Court.
In its most basic sense access to justice can be understood as the ease with which any person can approach the judiciary to get his grievances addressed. In July 2016, the Constitution Bench of the Supreme Court in Anita Khushwa v. Pushpa Sadan, while reiterating that access to justice is a fundamental right under Article 21, further elaborated that it may as well be a facet of equality under Article 14. It stated that “The citizen’s inability to access courts or any other adjudicatory mechanism provided for determination of rights and obligations is bound to result in denial of the guarantee contained in Article 14 both in relation to equality before law as well as equal protection of laws”. Further, the court delineated four essential facets of this principle – an effective adjudicatory mechanism; accessibility of this mechanism in terms of distance; speedy adjudication; and affordable access to the adjudicatory process.
It is in this context that one needs to understand the growing clamour for reform in the structural working of the Supreme Court. As the various Law Commission reports point out, the fact that the seat of the Supreme Court is circumscribed within Delhi adversely affects potential litigants coming from areas far off areas of the country. For a substantial number of such litigants, it is not financially viable to bear the expenses involved in going to the National Capital and fighting the case there. The fees of lawyers handling cases at the Supreme Court is nevertheless high. Adding to this the cost of travelling in and out of Delhi, especially considering adjournments and other delays becomes both logistically and financially unfeasible for a large part of the Indian population. In light of the fact that the Supreme Court has recognized access to justice as a Fundamental Right, the exclusive seat of the Supreme Court in Delhi creates an anomaly as the very institution that the people are supposed to approach for seeking justice is not within their reach.
Other than being a Constitutional court, the Supreme Court under Article 136 has a special leave jurisdiction to take up appeals against any judgment, determination, sentence, or order of any Court or Tribunal within India. In the year 1950, in the case of Pritam Singh v. The State acknowledging the immense discretionary power granted to it, the Supreme Court emphasized the need to exercise its special leave jurisdiction in “exceptional” and “special” circumstances. A similar stand was taken by the Court in the case of Mathai @ Joby vs George, wherein while referring the matter to the Constitution Bench the court observed that “if the Supreme Court entertains all and sundry kinds of cases it will soon be flooded with a huge amount of backlog and will not be able to deal with important questions relating to the Constitution or the law or where grave injustice has been done, for which it was really meant under the constitutional scheme”. However, the Constitution Bench while declining to look into the question of interpretation of Article 136 observed that while it is true that there is a need to use the powers given to the Court by virtue of this Article with circumspection, there is no question of limiting such power as it would go against the interest of justice.
In the current scenario the Supreme Court is dealing with a huge volume of cases under Article 136 and has consequently to a large extent converted itself into a regular court of appeal, leading to undue delay and backlog of cases and consequently affecting the efficiency of the apex court’s justice delivery mechanism both in the Constitutional and the appellate sphere. Hence, a systematic bifurcation of the Constitutional and appellate functions of the court along with the setting up of regional benches could be a potential solution whereby the court could continue using its discretion under Article 136 as and when it deems fit as envisioned by the Constitutional Bench in Mathai but at the same time these appeals would not in any way impact or overshadow the vital Constitutional functions of the Court. A somewhat similar reform was seen in Ireland in 2014 with the establishment of the Court of Appeal as an additional jurisdictional tier between the High Court and the Supreme Court. Now the only appeals that go to the Supreme Court in Ireland are those which raise issues of major public importance or where such an appeal is necessary for the interests of justice.
Conclusion:
While the initiation of virtual hearings by the courts during the pandemic is being seen by some as a reasonable solution to increase the accessibility of the Supreme Court, it does not provide an answer to the need for bifurcating the Constitutional and appellate functions of the Supreme Court. Further, considering the surprising stand taken by the Union of India contending that the proposed National Court of Appeal or Regional Courts of Appeal are neither “constitutionally permissible nor otherwise feasible”, it would be interesting to see how the Constitution Bench answers the issues raised in the case, especially in view of the fact that the court itself has recognized access to justice as a fundamental right as well as conceded that the clutter of cases over the past few decades has impeded the efficient functioning of the apex court.