The Congress, in its manifesto for the 2019 general elections, has promised that the independence and integrity of the judiciary will be maintained and protected at all costs. The party has said that it will take nine specific steps to achieve this objective.
First and foremost, it has promised to introduce a bill to amend the constitution to make the Supreme Court a constitutional court, one that will hear and decide on cases involving the interpretation of the constitution, and other ones of legal significance or national importance.
The second promise relates to the introduction of a bill to amend the constitution to establish a Court of Appeal between the high courts and the apex court. This court, the party says, will sit in multiple benches of three judges in six locations across India.
This reform has been proposed by several observers and stakeholders of the judiciary, but has failed to elicit a serious response from policymakers.
Petition to form a court of appeals
In 2015, the Supreme Court bench headed by the then Chief Justice T.S. Thakur came close to considering a public interest petition – filed by the advocate V.Vasanthakumar from Puducherry – seeking the establishment of a National Court of Appeal with benches of the Supreme Court in Chennai, Mumbai and Calcutta.
His grievance was that of late, all kinds of special leave petitions are being filed in the Supreme Court against all kinds of orders. For instance, if in a suit the trial court allows an amendment application, the matter is often contested right up to the Supreme Court. Similarly, if a bail application is dismissed by the magistrate, the aggrieved person approaches the higher courts. If the person is affluent, even bail applications are being filed in the Supreme Court, leading to accumulation of cases and mounting of arrears.
There had been instances where the Supreme Court had allowed such applications. In the words of the former Supreme Court judge J. Chelameswar, B.R. Ambedkar, regarded as the chief architect of the Indian constitution, would not have imagined the Supreme Court hearing bail applications – as it was intended only to decide constitutional issues.
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Vasanthakumar relied on the Supreme Court’s constitution bench’s judgment in Bihar Legal Society vs Chief Justice of India (1986) in which it was held that the court was never intended to be a regular court of appeal against orders made by the high courts. It was created as an apex court for the purpose of laying down the law for the entire country. Extraordinary jurisdiction for granting special leave was conferred upon it under Article 136 of the constitution, allowing it to interfere when it considered that the law was not correctly enunciated by the lower courts or tribunals and it was necessary to pronounce the correct law on the subject.
This extraordinary jurisdiction, the court was clear in that case, could be exercised by the apex court for the purpose of correcting grave miscarriage of justice, but such cases would be exceptional by their very nature. “We must, therefore, reconcile ourselves to the idea that like the apex court, which may be wrong on occasions, the high courts too may be wrong, and it is not every error of the high court which the apex court can possibly correct”, Vasanthakumar’s petition argued with a persuasive plea to follow the apex court’s suggestion in Bihar Legal Society to establish a National Court of Appeal.
Law Commission’s recommendation
The Law Commission, in its 125th report, recommended the establishment of a Federal Court of Appeal with branches in north, south, east, west and central India for the convenience of people. Whenever the question of constitutionality occurs, the Supreme Court can sit en banc at Delhi to deal with the same, the report suggested. The Commission’s 229th report also recommended the setting up of four cassation benches in northern, southern, eastern and western regions to deal with all appellate work arising out of the orders/judgments of the high courts of the particular region.
Vasanthakumar’s petition was stoutly opposed by the then Attorney General, Mukul Rohatgi, while the current AG, K.K. Venugopal, acting as the amicus curiae in the matter then, argued in its favour. Considering the complexity of the issue, the Supreme Court referred it to a constitution bench.
The Centre, through Rohatgi, opposed the petition, as in its view, the amendment of Article 130 of the constitution was impermissible, as this would change the constitution of the Supreme Court completely.
Article 130 of the constitution states 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.
Successive CJIs, however, have been reluctant to use this provision to set up benches of the Supreme court in other places of the country to make the apex court equally accessible to litigants in remote parts of the country. Studies have shown that the Supreme Court has predominantly catered to appeals from the Delhi high court, and other high courts in the north, while the number of appeals from high courts in west, east and south are comparatively less.
Doubts over implementation
Vasanthakumar, while expressing happiness that the Congress has adopted his prayers in its manifesto, is sceptical about the party’s ability to implement its promises. A constitutional amendment for this purpose, he says, would require ratification by the legislatures of not less than one-half of the states by resolutions to that effect passed by those legislatures before the bill making provision for such an amendment is presented to the president for assent, as mentioned in the proviso to Article 368(2) of the constitution.
According to him, a Congress government at the Centre would then plead its inability to implement its promises because it could not secure the required ratification by the state legislatures, in which parties other than the Congress are in a majority. However, if the Congress secures the requisite political consensus, this does not seem to be an insurmountable problem.
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There are 58,029 cases pending in the Supreme Court as of February 1. Of these, 36,786 cases are admission/miscellaneous matters, while 21,243 cases are regular hearing matters.
Of the constitution bench matters, there are a total of 44 five-judge bench matters, four seven-judge bench matters and seven nine-judge bench matters. These main matters are tagged with 518 pending matters, which would also be disposed of when the main matters are decided.
If the Supreme Court is to convert itself into a constitutional court with fewer judges, to begin with, it will have less than 55 cases, as a five-judge constitution bench is currently hearing a bunch of cases which will be decided in due course. If the constitution bench matters are given priority over other matters, it will have a ripple effect on the pendency, as many cases are kept pending or appealed in the Supreme Court due to the lack of clarity involving a question of law or constitution.
Other promises
The other promises made by the Congress are not contentious, although the party has not spelt out how it would implement them. Thus, the party says that it would enhance representation at all levels of the judiciary for women, Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities, and other under-represented sections of society. Allocation of sufficient funds to provide the necessary infrastructure for the judiciary is another promise, which appears bereft of substance in the absence of specifics.
The Congress promises to fix the retirement age of judges of high courts and the Supreme Court at 65 years. The retirement age for judicial members in commissions and tribunals shall also be 65 years, it says. “This will prevent post-retirement assignments for serving judges and allow more opportunities for qualified persons to serve as judges or judicial members,” the party has reasoned.
This would again require amendment of the relevant Acts. The chairperson of the National Human Rights Commission, for example, retires at the age of 70 and is drawn from a restricted pool of former chief justices of India. The chairperson of the National Green Tribunal also retires at the same age.
While the uniform age of retirement of judges of the high courts and the Supreme Court is intended to ensure that there is no mad race for elevation to the Supreme Court (presently, high court judges retire at 62, while the Supreme Court judges retire at 65) before the high court judges reach their superannuation. It is not clear whether this would result in belated elevation of high court judges, leading to even shorter tenures of Supreme Court judges than what we have at present.
If the chairpersons of tribunals and commissions also retire at the age of 65, how would the vacancies of judicial members in these bodies be filled is again unclear, as it would then depend on the resignation of the high court and Supreme Court judges, who may be reluctant to do so for various reasons.
Post-retirement assignments for serving or retired judges raise issues of conflict of interest only because there is no mandatory cooling-off period before the names of such eligible judges are considered following their retirement or resignation, giving rise to allegations of quid pro quo between the executive and the individual Judges.
The party’s promise to establish a National Judicial Commission for selection of judges for appointment to the high courts and the Supreme Court does not make it clear how it is different from the one attempted by the Modi government – one which was struck down by the Supreme Court in 2015 for violating the principle of independence of judiciary, a basic feature of the constitution.
The promise to establish an “independent” Judicial Complaints Commission to investigate complaints of misconduct against judges and recommend suitable action to parliament will depend on how “independent” such a commission would be in its functioning.