Why does the chief justice want to split the functions of the Supreme Court?

Speaking at Constitution Day events in the last week of November, both Attorney General KK Venugopal and the Chief Justice of India NV Ramana argued for restructuring the way the Supreme Court functions. What they spoke about was a need for Courts of Appeal – four regional courts handling appeals from different parts of the country, so that the Supreme Court can deal with only constitutional cases.

The proposal stems from some serious problems facing the apex court. The Supreme Court currently has a massive backlog of cases. Consequently, it is unable to devote enough time to constitutional cases as well as those involving substantial questions of law – the Supreme Court’s primary responsibility. Being situated in one city, Delhi, it is also geographically inaccessible to a large part of the country.

Reducing the cases the Supreme Court has to deal with might help with these problems.

What is the proposal?

On November 26, speaking at an event attended by the prime minister, the Union law minister and the chief justice, Venugopal said that he envisages “an intermediate court of appeal between the High Courts and apex court of the country and that is a court of appeal which absorbs all these cases of a nature which is other than constitutional case, which the Supreme Court has been doing today but which should be taken over by the Courts of Appeal”. The judgments of these courts will be final.

There will be four Courts of Appeal, one each for north, south, east and west regions. Each would have 15 judges, who will look after appeals currently heard by the Supreme Court. This will reduce the burden on the Supreme Court, which could then have 15 judges (from the 34 currently) who would sit in three benches of five judges each, hearing constitutional matters mainly, Venugopal said, as reported by Live Law.

The next day, speaking at a Constitution Day event, Ramana supported Venugopal’s views. With that, Ramana became one of the very few chief justices to have advocated for a restructuring of the judiciary.

What is the need for Courts of Appeal?

The biggest reasons for the Courts of Appeal proposal is the large number of pending cases before courts and the geographical inaccessibility of the Supreme Court situated in Delhi.

Across all courts in the country, more than 4 crore cases are pending at present, with around 70,000 cases pending just before the Supreme Court. A Delhi High Court judge estimated in 2009 that it would take 464 years to clear just the backlog in Delhi High Court, which has more than 1 lakh cases pending.

Venugopal also pointed out that apex courts in other countries are able to dispose of cases within two years, but the Indian Supreme Court is plagued with extreme pendency.

The Supreme Court, often cited by researchers as “the most powerful court in the world”, works as both a constitutional court – listening to matters which require interpreting the Constitution – as well as a court of appeal. Any judgment and order from any court or tribunal in the country can be challenged before the Supreme Court.

Many practising lawyers and academics have written about the “litigation explosion” in the Supreme Court. At the end of its first year in 1950, the Supreme Court had 8 judges and disposed of 525 matters, while 690 remained pending. Today it has 34 judges and disposes of, on an average, more than 40,000 cases each year. The court has a backlog of more than 70,000 cases currently.

The Indian Supreme Court handles a large number of cases for the apex court of a country. For comparison, the United States Supreme Court admitted only 82 out of 8,800 appeals filed before it in 2009-’10. The judges at the Indian Supreme Court have themselves said that they “feel over-burdened and have been working under acute work pressure”.

To understand why this massive backlog exists, it is important to look at what kind of cases the Supreme Court takes up.

What is primarily responsible for this glut?

There are various ways a case can reach the Supreme Court as per the Constitution: through a writ petition to enforce fundamental rights, through an appeal of a judgment of the High Court if the High Court certifies that the matter pertains to a substantial question of the law, amongst many other conditions. However, there is a provision by which someone can approach the Supreme Court directly to appeal against a judgment of any court (except a military court) or tribunal in India – special leave petitions under Article 136 of the Constitution.

This special leave jurisdiction of the court was meant to be used only as a “residual jurisdiction” to be “invoked only in the most exceptional cases.” However, over the years, a large part of the courts’ burden is a result of these special leave petitions.

Currently, almost two days – Mondays and Fridays – out of the five working days are taken up just to hear which of these special leave petitions the court should take up. This eats up almost 40% of the court’s time. On these days lawyers are given only a few minutes to in front of a judge. Once it has been accepted, the petitions are heard along with regular court matters.

A seminal 2011 study done by a legal researcher, Nick Robinson, shows that out of 68,000 petitions before the Supreme Court for admission, 84.6% were special leave petitions while only 1.8% were for enforcement of fundamental rights. For comparison: in 1985, 41% of petitions for admissions were for enforcement of fundamental rights.

The Supreme Court itself has expanded the kind of cases it takes up under Article 136 and has also refused to set any guidelines on what kind of cases can come under it. Academics Madhav Khosla and Ananth Padmanabhan write that “the Court has continued expanding the scope of Article 136 to the point where it is unclear what is excluded from its purview”.

The focus on taking up these special leave petitions has led to the “[Supreme] Court to spread itself thin across more cases” and has reduced the time it gets to look at constitutional cases. In the 1950s, around 13% of the Supreme Court’s judgments were on constitutional matters, having a bench of more than 5 judges. However, in the 2000s, the average number of constitutional benches was around 0.17%. Now the court sits in 2-judges benches in a majority of cases.

This goes against the primary purpose of the Supreme Court. In 1986, a five judge bench of the Supreme Court said, “...this Court was never intended to be a regular court of appeal against orders made by the High Court or the sessions court or the Magistrates.”

Apart from not taking up constitutional matters, this workload also affects the quality of judgments as well. Tarunabh Khaitan, a professor of law at Oxford University, says that this massive workload also leads to poorly reasoned judgments which create difficulty in interpreting what the law is.

What has prevented any change in this system?

Any changes to this system of special leave petition admissions – such as doing away with oral hearings for these petitions – are not easy to make. Researchers suggest that this may be attributable, in part, to the extremely powerful supreme court advocates.

A suggestion by a Supreme Court judge in 1980 to replace oral arguments with written submissions was met with a strike by the lawyers till the government clarified that this would not be introduced.

In their book chapter, Khosla and Padmanabhan write: “...there is a political economy built around the admissions system. The incentive structure, particularly for the senior advocates at the bar, is such that they earn much more, for likely less effort, from a short SLP admission matter on a Monday or Friday rather than by way of a regular hearing on other days.”

In a paper titled Grand Advocates, scholars Marc Galanter and Nick Robinson write that “one leading Supreme Court lawyer [they interviewed] speculated that 70% of his work came from admission day” and during these short hearings “top lawyers face-value is at a premium”. Even preliminary research by Vidhi Centre for Legal Policy shows that the appearance of a senior advocate nearly doubles the chances of a special leave petition getting heard.

Khaitan, examining the nature of cases before the Supreme Court, writes: “At any rate, while we cannot rule out these other relationships, we can say with some confidence that the presence of a senior advocate is related to decisions on admissions of SLPs. Senior advocates, therefore, are likely to be playing a key role in the high levels of admitted SLPs in the SC, which in turn is responsible for the cannibalization of the Court’s constitutional jurisdiction.”

Will regional courts help in delivering justice?

Another important point supporting the Courts of Appeal is the physical inaccessibility of the Supreme Court, with significant amounts needed to be spent to travel to Delhi to attend hearings. The 2011 study by Robinson shows that a majority of cases before the Supreme Court are from High Courts close to Delhi or belonging to wealthier states. He writes, “four high courts with the highest appeal rate [Delhi, Punjab & Haryana, Uttarakhand and Himachal Pradesh] are also the four closest to the Supreme Court”, while there were no appeals from the Sikkim High Court at all. This meant that more than 30% of appeals to the Supreme Court come from high courts representing just around 7% of the total population.

Having a court of appeal in every region would work to lessen geographical bias and make it easier for more Indians to access justice.

Have such demands been made before?

The demand for the bifurcation or restructuring of the Supreme Court is not a new one. Starting in 1984, it has been raised by several Law Commission Reports in different forms. In 2009, the 229th Law Commission report suggested that four regional benches of the Supreme Court be set up, rather than a separate Court of Appeal, which can deal with appeals from their regions, while the constitution bench would sit in Delhi.

In 2014, the government had rejected the proposal for a National Court of Appeal with regional branches, citing constant opposition by previous chief justices and the attorney general then.

However, the Supreme Court admitted a petition in 2016 by a Chennai lawyer V Vasanthakumar. The matter is still pending today.

One point which is noteworthy is the stance of the present chief justice and the attorney general has been different from that of their predecessors. Unlike Ramana, most previous chief justices have been against this idea. In 1986, however, PN Bhagwati had also expressed his assent to this idea when he was the chief justice.

When the case for establishing a National Court of Appeal came up before the Supreme Court in 2016, Mukul Rohatgi, the attorney general then, had said that this would only help lawyers make more money but not lessen the backlog of cases, since most of it is in the lower courts. However, the current Attorney General, KK Venugopal has been advocating for Courts of Appeal for more than a decade.

The structure envisaged through the split also exists in various countries. The 229th Law Commission report says that 55 countries in the world, such as South Africa, Myanmar, France, Germany have a court only for constitutional matters. In 2014, Ireland established a Court of Appeal after a referendum. This new court will take over a lot of cases that were previously heard by the Irish Supreme Court.