Report No. 14
41. Not acceptable.-
In our view adequate grounds have not been made out for the proposed enlargement of the right of appeal. Even in cases not covered by clauses (a) and (b) of Article 134(1), the High Court has the power to certify a case as fit for appeal to the Supreme Court under clause (c). There is no reason to suppose that cases in which accused persons are sentenced to death other than those falling under clauses (a) and (b) of Article 134, if they are fit ones for appeal, are not being certified as fit cases under clause (c) of Article 134(1). There is also the safeguard provided by the wide powers of the Supreme Court under Article 136 which will not fail to be exercised in cases of death sentences where a miscarriage of justice has occurred.
The proposal of the Madras Government is based on the view that all cases where the extreme penalty of the law has been awarded should be examined by the Supreme Court. We are not inclined to accept this view. For over a century such cases have been dealt with by the High Courts subject to the superintendence of the Privy Council under its special leave jurisdiction and there is no reason why the High Courts should not continue to deal with such cases in the same manner.
42. Dissenting Judgments.-
There has been considerable controversy over the question whether the present constitutional provisions which enable dissenting judgments or opinions to be delivered by Judges of the Supreme Court should be replaced by a provision making it obligatory on the Supreme Court to express a single judgment or opinion as used to be done by the Judicial Committee of the Privy Council. The matter may be dealt with separately in regard to judgments as distinguished from advisory opinions under Article 143 as differing considerations may arise in regard to them. The main ground on which a single judgment is advocated is that:
47. State of the Court's file.-
In view of the very wide jurisdiction of the Supreme Court it would be instructive to observe how it has been able to cope with the work before it and the present state of its file. We append at the end of the chapter tabular statements showing the number of civil appeals, criminal appeals, and Article 32 petitions instituted, disposed of and pending in the Supreme Court during the years 1950 to 1955 and upto the 15th November, 1956. (Tables II to IV). We also append Table showing the various classes of proceedings pending in the Supreme Court on the 1st of January, 1958 according to their year of institution (Table V). A statement showing civil and criminal appeals and petitions under Article 32 which are ready for hearing but could not be put on the lists for disposal till the 1st of January, 1958 is also annexed (Table VI).
The statements show that under Article 32 applications have been pending for more than 3 or 4 years. Ordinary civil appeals and other matters raising constitutional questions more than four years old are also pending. Even some criminal appeals of 1955 have remained undisposed of. The •effect of the recent increase in the strength of Supreme Court does not seem to have yet made itself felt on the pending file.
Of the 2126 civil appeals only 274 were admitted by special leave; but of the 794 criminal appeals as many as 548 were instituted by special leave. It is obvious that in addition to the time taken in hearing the appeals themselves, the disposal of special leave applications must have occupied a great deal of the court's time.
On the 1st January, 1958, nine petitions under Article 32 pending from 1954 or earlier years were ready for hearing but had not been listed. Of the twenty-three ordinary civil appeals pending from 1953 and earlier years two were ready and four were part-heard on that date, eighteen civil appeals raising constitutional issues pending from 1954 were also ready for hearing. Out of the hundred and eighteen appeals of 1955 which were pending on that date thirty-eight appeals were ready but not listed. Eighteen ordinary criminal appeals of 1955 and ninety-four of 1956 were also ready at the commencement of 1958. Out of the forty-five criminal appeals filed from 1953 to 1955 in which constitutional issues arise, twenty-four were also ready for hearing. All these ready cases have not yet been listed, presumably for want of time.
49 Adequacy of strength.-
The state of work in the Supreme Court does suggest the question whether the strength of the Court is adequate. The initial strength of the Court was fixed by the Constitution at eight Judges including the Chief Justice. Having regard to the provisions of the Constitution which require matters involving a substantial question of law as to its interpretation to be heard by a Bench of not less than five Judges the Court used generally to function in two Benches: a Constitution Bench of five Judges and a Division Bench consisting of three Judges which dealt with ordinary civil and criminal matters.
Recently (in January, 1957) by an Act of Parliament1 the strength of the Court was raised to eleven Judges including the Chief Justice. This increase in the strength now enables the Court to function simultaneously in three Divisions, a Constitution Bench of five Judges and two Benches of three Judges dealing with ordinary civil and criminal appeals. The revised rules of the Court now permit a Division Bench to be constituted with two Judges.
1. Supreme Court (Number of Judges) Act, 1956 (55 of 1956).
50. Strength may not be adequate.-
Considering the average disposal of the Court per year it would appear that despite the increase in its strength it may not be able to clear the existing volume of arrears. The figures indicate that the pending cases include as many as 481 appeals under Article 132 which have to be disposed of by a Bench of five Judges. It may be that several of these raise identical questions of law and are capable of being disposed of together. But even so it would seem that taking its present rate of institutions and disposals the Court will be adding to its arrears of work. It may also be mentioned that the figures in the Tables do not include civil appeals in which certificates have been granted and which have been admitted by the High Courts under Order XLV, rule 8 of the Civil Procedure Code, as such appeals are not numbered in the Supreme Court until the record has been received in the registry of that Court.
51. Future trends.-
At the same time the number of future institutions in the Court may be less as a result of the recent amendment in the election law which has provided for appeals to the High Court and if appropriate legislation recommended by us for appeals in the labour matters is enacted. It may also be that by appropriate changes in the rules, the Court may be able to save its Judge-power by instituting a system of preliminary hearing by a single Judge, or a Bench of three Judges for Article 32 applications and by leaving contested interlocutory and miscellaneous matters also to be disposed of by such Benches.
In the circumstances it would, we think, be advisable to watch the progress of work in the Court for some time before forming a judgment on the impact of the recent increase in its strength on its file of pending matters. Only then can a decision be reached on the need for further increasing the strength of the Court.
52. Summary of recommendations.-
Our recommendations on the Supreme Court can be summarised as follows:-
(1) Communal and regional considerations should play no part in the making of appointments to the Supreme Court.
(2) An effort should be made to recruit distinguished members of the Bar directly to the Supreme Court Bench by inviting them to accept the appointment at a time when they can look forward to a fairly long tenure on the Bench.
(3) In the interests of stability of judicial administration a Judge of the Supreme Court should have a tenure of at least ten years.
(4) It is not desirable to raise the retiring age of Supreme Court Judges.
(5) A person appointed as Chief Justice of India should have a tenure of at least five to seven years.
(6) The practice of appointing the senior-most puisne Judge of the Supreme Court as Chief Justice of India is not desirable. Instead, the most suitable person whether from the Court, the Bar or from the High Courts should be chosen.
(7) The pensions payable to judges of the Supreme Court should be increased so that a puisne Judge who retires after serving for 15 years (including service as a High Court Judge) has a pension of at least Rs. 2,500 and a Chief Justice Rs. 3,000.
(8) The pension may be proportionately less for a shorter period of service.
(9) The leave privileges of the Judges of the Supreme Court should be at least as liberal as those of the Judges of the High Court.
(10) It is not consistent with the dignity of the Judges of the Supreme Court to start chamber practice after retirement.
(11) The Judges of the Supreme Court should be barred from accepting any employment under the Union or a State after retirement, other than employment as an ad hoc Judge of the Supreme under Article 128 of the Constitution.
(12) It is not necessary to enlarge the jurisdiction of the Supreme Court in criminal matters.
(13) Although the exercise of the jurisdiction under Article 136 of the Constitution by the Supreme Court in criminal matters sometimes serves to prevent injustice, yet the Court might be more chary of granting special leave in such matters as the practice of granting special leave freely has a tendency to affect the prestige of the High Courts.
(14) The file of the Supreme Court is being clogged with appeals on labour matters and relief should be given to that Court by enabling parties to file appeals in these matters either to the High Court or to a special tribunal constituted for the purpose.
(15) No constitutional amendment is necessary in the matter of separate and dissenting judgments or opinions being delivered by the Supreme Court.
(16) The Court may consider the desirability of instituting a system of preliminary hearing in Article 32 petitions and of enlarging the powers of a single Judge or of a Division Bench, to deal with contested interlocutory and miscellaneous matters.