Report No. 229
Need for Division of the Supreme Court into a Constitution Bench at Delhi and Cassation Benches in four Regions at Delhi, Chennai/Hyderabad, Kolkata and Mumbai
1.1 Ever since the High Courts were founded in 1860, they were the highest courts of appeal in each province (in the Chief Commissioners' Provinces the Judicial Commissioner's Courts were the highest courts of appellate jurisdiction) and an appeal lay from them to the Privy Council in England. The Government of India Act 1935 created the Federal Court of India with an original jurisdiction in disputes between the provinces inter se and between the provinces and the federation.
The Federal Court had jurisdiction only in constitutional matters, but the federal legislature could confer on the court the power to hear appeals in civil matters decided by the High Courts. The jurisdiction of the Privy Council was abolished by the Abolition of the Privy Council Jurisdiction Act 1949, the appeals pending before the Privy Council before October 10, 1949, standing transferred to the Federal Court. Under our Constitution, the Supreme Court of India became the highest court of appeal for the whole of India.
Its jurisdiction is wider than that of any Federal Supreme Court. It has original jurisdiction in disputes between the Union and the States, and between the States inter se. It has original jurisdiction under article 32 of the Constitution for the protection of fundamental rights. It is the highest court of civil and criminal appeal; and it has overriding powers to grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India except a court or tribunal constituted by or under any law relating to the Armed Forces1 It also has advisory jurisdiction under article 143 of the Constitution.
1. H.M, Seervai, Constitutional Law of India - A Critical Commentary, 3rd Edn., (1984), Vol. 2, pages 2181-2182.
1.2 Constitutional adjudication or determination of constitutional controversies by the Supreme Court has its own importance. This includes the authority to rule on whether or not laws that are challenged are in fact unconstitutional. All sorts of facts and their consequences, and the values we attach to them, questions of economics, politics, social policies etc. going beyond purely legal disputes, are for determination by the Court.
1.3 As constitutional adjudication occupies a place of its own, it always merits consideration as to whether there should be a separate constitutional court, as is the position in about 55 countries1 of the world (Austria established the world's first separate constitutional court in 1920), or at least the Supreme Court should have a Constitutional Division.
Many continental countries have constitutional courts as well as final courts of appeal called courts of cassation (Cour de Cassation in French) for adjudication of non-constitutional matters. A court of cassation is the judicial court of last resort and has power to quash (casser in French) or reverse decisions of the inferior courts.
1. For example, Central African Republic, Colombia, Egypt, France, Germany, Iran, Italy, Myanmar, Russia, South Africa.
1.4 We are today in dire search for solution for the unbearable load of arrears under which our Supreme Court is functioning as well as the 1 H. M. Seervai, Constitutional Law of India - A Critical Commentary, 3rd ed. (1984), Vol. 2, pages 2181-2182 2 For example, Central African Republic, Colombia, Egypt, France, Germany, Iran, Italy, Myanmar, Russia, South Africa 10unbearable cost of litigation for those living in far-flung areas of the country.
The agonies of a litigant coming to New Delhi from distant places like Chennai, Thiruvananthapuram, Puducherry in the South, Gujarat, Maharashtra, Goa in the West, Assam or other States in the East to attend a case in the Supreme Court can be imagined; huge amount is spent on travel; bringing one's own lawyer who has handled the matter in the High Court adds to the cost; adjournment becomes prohibitive; costs get multiplied.
1.5 Whether the Supreme Court should be split into Constitutional Division and Legal Division for appeals, the latter with Benches in four regions - North, South, East and West, is a subject of fundamental importance for the judicial system of the country. This Report considers the question as to whether there is need for creating a Constitutional Court or Division in our Supreme Court that shall exclusively deal with matters of constitutional law and four Cassation Benches one each in the four regions.