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Report No. 125

The Supreme Cour.- A Fresh Look

Chapter I

Past Efforts

1.1. Except an inveterate optimist, one would shudder to attempt to examine the crisis-laden situation in the Supreme Court and suggest even a modicum of reform. Numerous attempts in the past by knowledgeable and brilliant law reformers have met with a resounding failure. On the contrary, every such attempt had the dubious distinction of adding to the malaise.

Therefore, one would shudder to enter in this no-win situation. And yet human ingenuity demands that failure may be confessed and yet after keeping in view all the past attempts, one must strive to find, if possible, an invigoratingly new solution in the fond hope that the intractable problem cannot be beyond the human reach. This report is a step in that direction.

1.2. Before the Law Commission can formally make some suggestions which may help in improving the situation, if not wholly solving the problem, it must, with advantage and consideration, look at the past attempts and briefly recall them so that a fallacy of repetition can be avoided and a refreshingly fresh outlook can be developed.

1.3. In the scheme of Indian Constitution, Supreme Court has a vital role to play. The Constitution-makers themselves had very high expectations from the Supreme Court when they conferred upon it the jurisdiction of widest amplitude. Avoiding comparison with the House of Lords in U.K. or the Supreme Court of United States, it can be said without fear of contradiction that the Supreme Court of India enjoys the widest jurisdiction, including the novel jurisdiction hitherto not enjoyed by any court system in any country of having original jurisdiction to grant relief in case of violation of fundamental rights.

And the right to move the court itself is guaranteed as fundamental right. Without enumerating varied jurisdiction under the Constitution, such as under Articles 32, 71, 131, 132, 133, 134 and 136, various statutes have provided for appeal to the Supreme Court. This expansive jurisdiction was further expanded by the Supreme Court itself by conferring upon itself the epistolary jurisdiction and added to it the jurisdiction enjoyed by entertaining social action litigation.

By this varied and variegated jurisdiction the Supreme Court of India has now been designated as Supreme Court for Indians. In this transformation from being Supreme Court of India to Supreme Court for Indians, the institution had to pay heavy price of facing mounting and unmanageable litigation. The problem has not surfaced only recently. Way back in 1955, when the first Law Commission was set up amongst ethers, by its terms, it was requested 'to review the system of judicial administration in all its aspects and suggest ways and means for improving it and making it speedy and less expensive'.1

Dealing with this term of reference, the first Law Commission, after noticing that the jurisdiction enjoyed by the Supreme Court is 'the widest and the most varied jurisdiction among the highest courts in the Commonwealth and Anglo-Saxon countries'2, concentrated its attention on the inflow of work in the Supreme Court disproportionate to the output and the mounting arrears.

It was convinced that, having regard to the average disposal of the court per year, it would appear that despite the increase in the strength, it may not be able to clear the existing volume of arrears. Amongst its recommendations dealing with the Supreme Court, attention was focussed upon improving the conditions of service of the Judges and application of greater strictness in the matter of admission of criminal appeals and petitions under the labour laws and introducing a stage of preliminary hearing in the matter of petitions under Article 32 of the Constitution.

The Commission entertained a pious hope that the situation may be watched for some time to evaluate the outcome of recommendations and the increased strength of the Judges. The diagnosis offered by the 14th Report and the remedial recommendations made for improving the situation were Watched with baited breath.3

To be precise, the situation considerably deteriorated and the periodical upward revision of the Judge strength of the Supreme Court failed to make any dent on the delay in disposal of cases and reducing mounting arrears. Conceding that 'whenever decisions are to be made in accordance with general, public and positive norms by third party mediators or adjudicators, some time must necessarily be consumed in arriving at authoritative and, hopefully, just decisions.

Which time-costs are reasonable and which are unreasonable, is a matter for both value judgment and empirical analysis.4 Yet it cannot be gainsaid that a system devised to do justice between contending parties who resort to the system for resolution of their disputes must be able to resolve the same within a reasonable time and with reasonable costs. Both these aspects were eluding the Supreme Court.

1. The first term of reference of the First Law Commission; LCI, 14th Report on Reform of Judicial Administration.

2. LCI, 14th Report on Reforms of Judicial Administration.

3. U. Baxi The Crisis of Indian Legal System, p. 58.

4. Id., p. 59.

1.4. The Law Commission in quick succession examined the Code of Civil Procedure,1 Criminal Procedure Code,2 and repeated the performance.3 Of course, these three reports did not strictly deal with the Supreme Court itself, yet it is appropriate to mention that the jurisdiction of the Supreme Court in matter of criminal appeals got slightly enlarged by introduction of section 379 in the Code of Criminal Procedure, 1973, which provided that 'where the High Court has, on appeal, reversed an order of an accused person and convicted him and sentenced him to death or imprisonment for life, he may appeal to the Supreme Court'.

This provision has to be read in the light of Article 134 prescribing appellate jurisdiction of Supreme Court in regard to criminal matters.

1. LCI, 27th Report on Code of Civil Procedure, 1908.

2. LCI, 37th Report on Code of Criminal Procedure, 1898 (Sections 1 to 176).

3. LCI, 41st Report on Code of Criminal Procedure, 1898.

1.5. Article 133 of the Constitution as it was originally enacted granted a right of appeal to the Supreme Court depending upon the valuation of the subject-matter of the dispute. An appeal would he to the Supreme Court if the value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than Rs. 20,000. An appeal also would lie to the Supreme Court if the High Court certifies that the case is a fit one for appeal to the Supreme Court. This provision, in its operational stage, led to anomalous results.

If a petition is filed in the High Court invoking its jurisdiction under Article 226 of the Constitution with an averment that the value of the subject-matter is dispute is Rs. 20,000 or more, the High Court would none-the-less have jurisdiction to dismiss this petition in limine, yet will have to grant a certificate in view of the language of Article 133(1) as it then stood. Numerous appeals, which according to the view of the High Court can be styled as frivolous, were being filed in the Supreme Court because of the value of the subject-matter of the dispute.

In a republican Constitution, it was incongruous to grant a right of appeal merely depending upon the value of the subject-matter of the dispute. Functionally translated, it would mean that a rich man can have his dispute brought right to the Supreme Court and a poor man whose subject-matter of the dispute is valued below Rs. 20.000, will be denied that right. Of course, those were the halcyon days of reverential attachment to fundamental right to property.

However, the Law Commission, disturbed by the mounting crescendo of arrears undertook the examination of the appellate jurisdiction of the Supreme Court in civil matters.1 It. was of the opinion that the minimum limit of Rs. 20,000 fixed in 1950 at the time of the enactment of the Constitution was too low in view of the fall in the value of the rupee and that, therefore, small property disputes only on the valuation of the subject-matter landed in the Supreme Court and that the Supreme Court should not be troubled unless a much larger amount was involved.

Though the Law Commission started an inquiry with a view to raising the minimum value of the subject-matter of dispute for purposes of appeal to the Supreme Court, it ultimately recommended that this value approach is anachronistic and must be dropped and that Article 133 should be so recast as to permit an appeal to the Supreme Court from any judgment, decree or order in a civil proceeding of a High Court if the High Court certifies that the case is a fit one for appeal to the Supreme Court'2 This report was submitted in October 1971. Soon thereafter, the Law Commission was reconstituted.

1. LCI, 44th Report on Appellate Jurisdiction of the Supreme Court in Civil matters.

2. LCI, 44th Report.

1.6. On the reconstitution of the Law Commission, Government of India requested the reconstituted Law Commission 'to examine the same matter further regarding suitable amendment to Article 133 of the Constitution so as to abolish the basis of valuation as conferring a right of appeal on a litigant'.1 The Law Commission agreed with its predecessor that the test of pecuniary value has become irrelevant and, therefore, sub-clauses (a) and (b) of Article 133(1) deserve to be deleted. The Commission accordingly recommended that Article 133(1) of the Constitution should be amended so as to read as follows:-

1. LCI, 45th Report on Civil Appeals to the Supreme Court in Civil Matters.

"(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the Union territory of India if the High Court certifies

(i) that the case involves a substantial question of law of general public importance; and

(ii) that in the opinion of High Court the said question needs to be decided by the Supreme Court.".

The recommendation of the Law Commission was accepted by the Government of India and Article 133(1) was amended as recommended, by the Constitution (Thirtieth Amendment) Act, 1972, with effect from February 27, 1973. The amendment was of a restrictive nature in the sense that the attempt was to narrow the inlet through which appeals on certificate from the High Court flow to the Supreme Court. As hereinabove indicated, when the pecuniary value basis was operational, the High Court, while dismissing a petition in limine had no option but to grant the certificate.

Since the amendment, the High Court, if it dismissed the petition in limine, it would not ordinarily grant the certificate because if the case involved a substantial question of law of general importance, the High Court would not, dismiss the petition in limine, and if after full-dress hearing the petition is dismissed, the High Court ordinarily would not come to the conclusion that the second condition is satisfied that in the opinion of the High Court the said question needs to be decided by the Supreme Court. Therefore, this was the first attempt to narrow the noose through which cases flow to the Supreme Court.

1.7. However, the amendment of Article 133(1) did not have the desired effect in as much as the wide jurisdiction enjoyed by the Supreme Court under Article 136 remained untouched.

1.8. Again the Law Commission, while comprehensively dealing with Civil Procedure Code,1 did not touch upon the jurisdiction of the Supreme Court.

1. LCI, 54th Report on Code of Civil Procedure, 1908.

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