The Supreme Court (SC) seems to have lost its original character, as a recent analysis points to the growing number of routine appeals being entertained by it as against deciding core Constitutional matters.
A study of the top court’s judgments by SC advocate KV Dhananjay and his team found that just 7.23% of its rulings last year dealt substantially with Constitutional matters. Of the 884 judgments delivered in 2014, just 64 judgments fitted the description of dealing with a Constitutional question. “So, it is fair to say that only 7% of the judgments delivered by the Supreme Court in 2014 involve a dispute over the interpretation of any provision of our Constitution or involve a challenge to any statute, regulation, law or executive action on the ground of it being inconsistent with our Constitution …,” the study stated.
While 32 judgments were delivered by division benches, 18 and 14 judgments were pronounced by three-judge and five-judges benches, respectively. Another researcher, Nick Robinson, from Harvard Law School’s Centre on the Legal Profession, has shown that the number of matters decided by Constitution Benches has fallen to the lowest level ever after studying 50 years of data.
While the court averaged about a 100 five-judge or larger benches a year in the 1960s, by the first decade of the 2000s, this had decreased to about nine a year. In the second half of the 2000s, Constitution benches heard an average of 6.4 matters per year, the lowest ever!
While PILs/writ petitions annually admitted by the apex court make for a meagre 1%, around 85% of its workload are appeals from high courts and tribunals.
If the trend continues, the SC will turn into a general court of appeal. This is in contrast to what was prescribed in the Constitution which had, in 1950, conferred on the SC the limited but important function of deciding cases involving fundamental rights, cases of Constitutional importance and substantial questions of law of general importance. The Constitution also requires the SC sit in larger benches, at least, five judges to decide a case “involving a substantial question of law as to the interpretation” of the Constitution.
All this has changed. Nowadays, smaller benches (division benches) take up most of the court’s work. The Constitution benches have become less frequent. The last major Constitutional case, with a bench of nine judges, was decided in 2007—the IR Coelho vs. the State of Tamil Nadu, which considered Parliament’s power to amend the Constitution by including statutes in the Ninth Schedule of the Constitution.
Experts feel that restoring the character and standing of the apex court is necessary. According to former Solicitor General of India and senior lawyer TR Andhyarujina, “The only solution to preserve the exclusivity and standing of the Supreme Court is to create a separate national court of appeals distinct from the Supreme Court. Simultaneously, the number of judges of the SC can be reduced from 31 to a smaller strength and the court can function with benches of three and five judges as it functioned earlier.”
Lawyer Arti Singh says there should be a mechanism for setting up of special Constitutional Courts which should deal exclusively with constitutional matters only. “The only Constitutional Court should hear constitutional disputes between different levels of government. In South Africa, constitutional matters usually start with lower courts and move up through the system. Similarly, these issues should be heard by the HC and then travel to the Supreme Court before the constitutional aspect may be settled by the Constitutional Court,” she says.
Legal experts also warn against disagreements between the benches on a particular issue. Says Dhananjay, it becomes necessary for the different benches to speak in ‘one voice’ and that means, before a judgment is delivered by any bench of the Supreme Court, it would be preferable that it is circulated amongst other benches so that the final judgment will reflect a broader consensus of the Supreme Court. “Doing so would not mean that there would be no disagreement between the different benches; it would only mean that any disagreement will be a conscious act and not a result of not being aware of a different view,” he adds.
The chief justice plays a dominant role in constituting such benches. Former Chief Justice RM Lodha, who passed on the baton to present Chief Justice HL Dattu, had set up a Constitution bench that sat regularly. Lodha presided over the five-judge bench which struck down the UPA-proposed National Tax Tribunal.
It is now for Chief Justice Dattu to play a prominent role in setting up such dedicated benches at the earliest and decide various pending issues like the entry tax issue. At least, there are 755 five-judge or larger matters pending for several years now, according to legal experts.