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Report No. 229

II. Recommendations and Views Expressed

2.1 The tenth Law Commission in its 95th Report titled "Constitutional Division within the Supreme Court - A proposal for", submitted in 1984, recommended that the Supreme Court of India should consist of two Divisions, namely, (a) Constitutional Division, and (b) Legal Division. The proposed Constitutional Division of the Supreme Court should be entrusted with matters of constitutional law,i.e., every case involving a substantial question of law as to the interpretation of the Constitution or an order or rule issued under the Constitution and every other case involving a question of constitutional law.

Other matters coming to the Supreme Court will be assigned to its Legal Division. It was further recommended that judges appointed to the Supreme Court would, from the very beginning, be appointed to a particular division. For effecting these recommendations, it was opined in the said Report, amendment of the Constitution would be necessary; ordinary legislation,vide article 246(1) read with Entry 77 of the Union List or statutory rules,vide article 145 of the Constitution would not be adequate.

2.2 It may be noted that the tenth Law Commission had also considered the question as to whether there should be created a Constitutional Court to decide constitutional questions, instead of a Constitutional Division, but keeping in view that creation of a separate Court for dealing with constitutional issues would involve structural changes of a more extensive and complex character than those that would be necessitated by a proposal for creating, within the Supreme Court as structured at present, separate divisions for dealing with constitutional 12and non-constitutional matters, as well as an overwhelming opinion in favour of a Constitutional Division, the Commission did not pursue the idea of creating a Constitutional Court.

2.3 The eleventh Law Commission in its 125th Report titled "The Supreme Court - A Fresh Look", submitted in 1988, reiterated the above recommendation for splitting the Supreme Court into two and gave an additional reason for the same. The Commission stated the additional reason in paragraph 4.17 of the said Report as under:

"The Supreme Court sits at Delhi alone. Government of India, on couple of occasions, sought the opinion of the Supreme Court of India for setting up a Bench in the South. This proposal did not find favour with the Supreme Court. The result is that those coming from distant places like Tamil Nadu in the South, Gujarat in the West and Assam and other States in the East have to spend huge amount on travel to reach the Supreme Court. There is a practice of bringing one's own lawyer who has handled the matter in the High Court to the Supreme Court.

That adds to the cost. And an adjournment becomes prohibitive. Adjournment is a recurrent phenomenon in the Court. Costs get multiplied. Now if the Supreme Court is split into Constitutional Court and Court of Appeal or a Federal Court of Appeal, no serious exception could be taken to the Federal Court of Appeal sitting in Benches in places North, South, East, West and Central India.

That would not only considerably reduce costs but also the litigant will have the advantage of his case being argued by the same advocate who has helped him in the High Court and who may not be required to travel to long distances. Whenever questions of constitutionality occur, as pointed out in that report1, the Supreme Court can sit en banc at Delhi and deal with the same. This cost benefit ratio is an additional but important reason for reiterating support to the recommendations made in that report.1

1. 95th Report of the Law Commission of India.

2.4 The problem of delay in trial and disposal of cases and consequent pendency of cases in the apex court and the courts subordinate has been a matter of great concern, debate, discussion and criticism. The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in its 28th Report dealing with the Supreme Court (Number of Judges) Amendment Bill 2008 has noted thus:

"The Committee has felt that inordinate delay in delivering justice to the people defeats the very purpose of the judiciary as an institution. The magnitude of the problem of the pendency of cases in various levels in the judiciary must be understood in the context that the people resort to judicial remedy as a last resort for the redressal of their grievances and to get justice. This is so because people have reposed their ultimate faith and trust in the judicial system above the legislature and executive.

In this context pendency of cases hits the common man, seeking justice, the hardest. Perhaps, that is the reason that it is said justice delayed is justice denied. However, in spite of the various measures taken by the Government and the judiciary itself, it is a matter of serious concern that the pendency or arrears of cases has been increasing steadily over the years bringing the judicial system as a whole to near stagnation. Further, the pendency of cases in the Supreme Court is very reflective of the delays in the judicial system, thus, a cause of extreme concern requiring immediate remedial steps."

2.5 The background note of the Department of Justice on the Bill for increasing number of Supreme Court Judges presented before the Standing Committee stated:

"The Chief Justice of India has informed that there were 41,078 cases pending in the Supreme Court as on 01.03.2007 and the Judges feel over-burdened and have been working under acute work pressure. He has further stated that despite satisfactory high rate of disposal, pendency of cases in the Supreme Court has constantly been on the rise due to comparatively higher rate of institution of cases. Pendency of cases in the courts could be 14directly ascribed to complex factors, with inadequate judge strength coming at the top".

2.6 What has been stated before the Standing Committee is amply proved by the fact that in 1950, there were 1,215 cases which were instituted (1,037 admission matters and 178 regular matters). The disposal rate was 525 (491 admission matters and 34 regular matters) and pendency of cases at the end of the year was 690 (546 admission cases and 144 regular cases). Therefore, as against 1,215 institutions, the disposal of cases was 690 and the number of Judges was 7.

In successive years, the number of Judges rose from 7 in 1950 to 10 in 1956, 13 in 1960, 17 in 1977 and 25 in 1986 and now the strength of Judges in 2009 is 30, excluding the Chief Justice of India. The total number of institution of cases from January to April in the year 2008 was 28,007 and the disposal of cases was 28,559,i.e., 552 cases above the institution of cases.

Yet the pendency of cases remained as 46,374. This clearly shows that pendency of cases as accumulated over the years has also been carried forward. In three years notably,i.e., 1989, 1990 and 1991 the pendency-figure crossed over one lakh. The complete chart of institution, disposal and pendency of cases in the Supreme Court from the year 1950 to April, 2008 is at Appendix.

2.7 The said chart demonstrates that increase in number of Judges in the apex court does not result in reduction of pending cases. It is, therefore, clear that there are reasons other than the inadequacy of judge strength which are responsible for accumulation of undecided cases in the Supreme Court.

2.8 An important factor which needs to be kept in view is that in India, according to the Law Commission's 120th Report titled "Manpower Planning in Judiciary: A Blueprint", submitted in 1987, the ratio between judges and population is 10.5 judges per million (Shri Justice S. P. Bharucha, a former Chief Justice of India, in his Law Day address in 2001 stated this figure to be 12 or 13), whereas it is 107 per million in USA, 75.2 per million in Canada, 50.9 per million in U.K. and 41.6 per million in Australia.

2.9 It is, therefore, evident that the ratio between judges and population is hopelessly low in our country. The same is apparent in the apex court as well since the Judges were 25 and the institution of cases was 28,007 cases in January-April 2008. The ratio works out to 1: 112.

The figure given above is of institution of new cases only. If the pending arrears of 46,374 are taken into account, the ratio will be 1: 1855.

2.10 Therefore, it is argued that the bench-strength of the Supreme Court should be increased drastically to cover the backlog of pending cases and to promote future developmental programmes in the judiciary and thereby minimize delays in the justice-delivery system and promote speedy justice which is the avowed goal of the Constitution. But it is equally effectively argued that mere increase in number of Judges might not help improve the system.

2.11 Dr. P. C. Alexander, former Governor of Tamil Nadu and Maharashtra and Member of Parliament, has thrown considerable light on 16the malaise that ails the judicial system. In his article "Justice is pending" published in The Asian Age5 Dr. Alexander has stated:

"No doubt, increasing the number of judges, promptness in filling up the vacancies and improving working facilities are all very important for the efficiency of the judicial system, but these alone cannot be an adequate solution to the pendency problem. There are many measures which the judiciary can take without waiting for additional financial support from the government, but very little effective action has been taken on these by the judiciary and they continue to cause delays in the disposal of cases.

They include laxity shown by the courts in matters like production of witnesses on the dates posted for their examination, granting requests for adjournments of cases without good reasons, inordinate delays in giving copies of documents, allowing lengthy arguments by the advocates, and the practice of judges themselves writing unnecessarily long judgments.

The liberal attitude of the courts in entertaining appeals from the lower courts has also contributed to the steady increase in the backlog. Those who have the financial resources go on appeal on the decisions of the lower courts to the next higher court, and finally to the Supreme Court, even when no interpretation of the law may be involved.

When the accused are influential politicians or rich businessmen, the cases can go on endlessly, bringing down in this process the reputation of the judicial system itself. If appeals can be limited to a small number, say one or two, depending on the nature of the crime, it can help a great deal in reducing pendency.

The practice of some judges in delaying the delivery of judgments for several months, and in certain cases, even till they retire from service, has been another cause of delayed justice. Though a maximum time limit of one month has been considered reasonable for the delivery of judgment, there is no mechanism for enforcement of any time limit, and this malpractice on the part of some judges thus goes on unchecked.

Again, no serious attempts are being made by the judiciary to make use of the provisions in the Constitution for engaging the services of retired judges both at the Supreme Court and at the High Courts for temporary periods 5 http://www.asianage.com, visited 22.07.2009 17for help in clearing the backlog of cases. It appears that retired judges are reluctant to serve in this capacity as they consider such service not befitting their status. There is no reason why this issue cannot be sorted out to the satisfaction of the retired judges, but the judiciary does not appear to be very keen about resorting to these Constitutional provisions."

2.12 We have tried some of the above-mentioned measures for the last 59 years of the functioning of the judicial system in our country. The result appears to be far from satisfactory. Time has come when the entire judicial set-up will have to be overhauled and refurbished in order to make the goal of speedy justice a pulsating reality.

It is quite often argued that the present pattern of working of the Supreme Court needs to be revised if any success in this direction is to be achieved. The indiscriminate acceptance of appeals on trivial issues of facts by the Supreme Court quite often overloads itself. In fact, only important issues need be litigated in the Supreme Court. Also, the present situation makes the Supreme Court inaccessible to a majority of people in the country.

2.13 In this context, it may be noted that in its 2nd (2004), 6th (2005) and 15th (2006) Reports the Parliamentary Standing Committee on Law and Justice has repeatedly suggested that in order to promote speedy justice available to the common man, benches of the Supreme Court have to be established in the Southern, Western and North-Eastern parts of the country.

In its 20th (2007), 26th (2008) and 28th (2008) Reports, the Standing Committee suggested that a bench of the Supreme Court should be established at least in Chennai on trial basis as this would be of immense help to the poor who cannot travel from their native places to 18Delhi. Despite these Reports, the Hon'ble Supreme Court has so far not agreed with the suggestion regarding setting up of its benches.



Need for Division of the Supreme Court into a Constitution Bench at Delhi and Cassation Benches in four Regions at Delhi, Chennai or Hyderabad, Kolkata and Mumbai Back




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