A question of priority

The CJI-designate’s call for a permanent Constitution bench has merit, but that could only be a partial solution

A question of priority
Supreme Court (File Image)

UU Lalit, who takes over as the next Chief Justice of India on August 27, surely had the best interest of Constitutional jurisprudence in mind when he called for the creation of a permanent Constitution bench, in recent media interviews. At present, 492 Constitution bench matters are pending before the Supreme Court (SC).

Fifty-three of them are about seminal Constitutional questions, including the abrogation of Article 370, remit of the court in matters relating to faith, and the Citizenship Amendment Act. Some have been pending for long, underscoring the inadequacy of the current ad hoc approach. How Constitutional jurisprudence has suffered because of this is evident from the fact that the average number of Constitutional benches formed in a year has fallen from over a 100 in the 1960s to around 10 in the 2000s. Certainly, there would have been a greater need for clarity on constitutionality in the early years of the republic, but the precipitous fall has also to do with judicial strength vis-a-vis workload.

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Bear in mind that the bulk of the over 71,000 matters pending with the SC are non-Constitutional ones—largely, special leave petitions (SLPs) and regular matters, quite a few of whom do not warrant the apex court’s attention. As Justice Lalit has pointed out, the fallout of the lack of clarity on constitutionality in many matters has played a role in choking the judiciary across levels. Thus, the need for a permanent Constitution bench has been articulated for long. The 229th report of the Law Commission (in 2009) had called for one, and four cassation benches in regional courts to deal with appellate matters from the high courts.

That said, a permanent Constitution bench remains only a partial solution. The primary need is for the SC to introspect if its case-load and the consequent erosion of the constitutional jurisprudence it produces have more to do with the growing predilection for judicial overreach. The apex court hears multiples of the case-load at a peer court in a developed nation, but constitutional cases and critical ones form a much smaller proportion. The SC certainly can’t dispense with its function as the highest court of appeal, but it does need to relook at the kind of cases it takes up. It routinely entertains, and even prioritises, petitions that may not have egregious injustice at the heart of the matter. There is surely a need to balance urgency against constraints of resource. There has been a rising trend in the filing of public interest litigation (PILs) at the Supreme Court. To that end, Justice Lalit’s endorsement of stricter penalties for those filing frivolous PILs and a mechanism to pre-filter PILs for worthiness of the apex court’s attention could be important steps forward.

Even a dedicated Constitution bench would prove a weak solution as long as the problem of inadequate judicial strength is not addressed. There are currently 32 sitting judges in the apex court, against a sanctioned strength of 34. With NV Ramana’s retirement at the end of this month, the apex court will be short of three judges. It is true that the government must move on collegium recommendations in a timely manner to remedy this, but it is also a fact that the Supreme Court needs to be more judicious about what matters it should concern itself with.

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