Towards a true Constitutional Court

Written by Indu Bhan | Updated: Jun 11 2014, 07:34am hrs
The huge backlog of cases in courts and the delays in the administration of justice have made lawyers revive the demand for setting up of Constitutional and Cassation Courts as the step may ease the work of the Supreme Court. Cries for such parallel set-ups have become louder as lawyers feel that establishing Supreme Court benches in three different regions will facilitate quality legal services at the doorstep.

The Bombay Lawyers Association has written a letter to the Union law minister Ravi Shankar Prasad suggesting that the Constitution Bench of the apex court can remain in Delhi while the other three regional benches can be formed for dealing with appeals from high courts in their respective regionswest, east and south. This can save both time and money as the lawyers would not be forced to travel to Delhi for appeals in the apex court.

Restructuring of the Supreme Court has been long on the Law Commissions agenda. The Law Commission in 2009, under the chairmanship of Justice AR Lakshmanan, had recommended that Supreme Court benches be set up in Chennai/Hyderabad, Kolkata and Mumbai to enhance accessibility to litigants due to increasing number of appeals against lower court orders.

In its 2nd (2004), 6th (2005) and 15th (2006) reports, the Parliamentary Standing Committee on Law and Justice periodically suggested that the benches of the Supreme Court have to be established in the three regions in order to fulfil the vision of speedy justice for all. Even the panel in the 14th Lok Sabha, headed by Pranab Mukherjee, pointed out the necessity of setting up more benches to ameliorate hardship of litigants who travel long distances to reach the apex court.

However, such suggestions were rejected by the Supreme Court every time. Former Chief Justice KG Balakrishnan was against dividing the top institutions unitary character. I am not in favour of the disintegration of the Supreme Court. Personally I feel the Supreme Court cannot be in any other part of India. This is the highest court of the land. It is in the capital city of the land It is a final court and we should maintain the integrity of the Supreme Court, he said.

Recently, the apex court under former Chief Justice P Sathasivam entertained a PIL by Puducherry-based advocate V Vasantha Kumar on the issue. The top court has sought reply from the Centre and the law ministry on converting itself into the countrys Constitutional Court and setting up four regional National Courts of Appeal (NCA).

Such parallel set-ups have become imperative as legal experts feel that the countrys highest judicial institution has lost its original character and stature. All through, the intention of the framers of the Constitution was that the top court should decide intricate Constitutional issues but in practice it has now become a mere court of appeal.

Former Solicitor General and senior Supreme Court lawyer TR Andhyarujina has been quite vocal on the issue. He feels that the Supreme Court was not to decide ordinary disputes but only exceptional cases between litigants. Cases of Constitutional and national importance have been sidelined and not heard for years, he had said earlier.

Even a five-judge Constitution Bench headed by then Chief Justice PN Bhagwati, in its judgment in 1986 in Bihar Legal Support Society vs Chief Justice of India, had said that the Supreme Court was never intended to be a regular court of appeal against orders made by the high court or sessions courts or magistrates.

However, the legal fraternity is divided over the issue. While senior lawyers KK Venugopal and Rajiv Dhawan had opined that instead of adding more judges to the Supreme Court, four regional or zonal courts of appeal should be established, Constitutional expert Fali S Nariman is against the idea of having national courts. He discarded the applicability of the American system to the Indian system.

While all this may take some time, during the interim period, options to clear the backlog of pending cases by increasing the bench strength of the Supreme Court should be considered. Liberal attitude of the Supreme Court to entertain appeals should be looked into. The practice followed by few judges in sitting over the judgments, and in certain cases even till they retire from service needs to be checked.

Now it is for the new government to take a call on whether or not to make the Supreme Court the Constitutional Court of the country and, consequently, set up four NCAs.

indu.bhan@expressindia.com