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Report No. 125

4.12. On these introductory remarks, it is recommended that the retired Judges, minimum 12 in number, may be requested to sit in four Benches, each of three, and to take up old civil and criminal appeals. The Chief Justice of India may draw a base-line, the cases beyond which may be treated as those available for disposal by retired Judges sitting in Benches. For implementing this suggestion, constitutional amendment is not necessary because Article 128 will effectively assist in implementing this suggestion. It is the experience of many Judges that the old matters sometimes hang on for not being even touched for want of time.

These four Benches-two dealing with criminal appeals and two dealing with civil appeals-will handle old matters and the disposal is bound to be very fast because a number of matters would get disposed of for want of further interest in prosecuting the same as they are pending over two decades right from the day of institution in the court of first instance. The Chief Justice of India, in consultation with the President, may request such retired Judges residing in Delhi to accept this assignment to begin with for a period of two years.

4.13. To make this offer attractive, the retired Judges should be paid the same salary as the sitting Judges and pension should not be deducted. They have earned their pension. The whole concept of deducting pension on re-employment has become a disincentive. In fact, in the State of Gujarat, any retired Judge at any level, when re-employed, gets the salary admissible to the Judge in position plus his pension. It is worth emulating this wholesome suggestion and it is recommended accordingly.

4.14. This recommendation can be implemented without amending Article 128 of the Constitution which provides that when retired Judges are requested to attend the sittings of the Supreme Court, they would be entitled to such allowances as the President may by order determine. The President may as well determine the same allowance as admissible to a sitting Judge of the Supreme Court.

The practice hitherto followed is, to say the least, wholly unwholesome because one of the retired Judges who had worked as an ad hoc Judge informed the Law Commission that the allowance is almost of a daily-rated workman, a situation unbecoming for a retired Judge of the Supreme Court.

4.15. These Benches would sit from 8.30 A.M. to 12 noon. The Supreme Court may itself assemble from 12 to 5 with half an hour lunch because one hour lunch break is hardly necessary. The administrative supervision of the Courts presided over by the retired Judges will obviously vest in the Chief Justice of India.

4.16. The recommendations made herein are not in supersession of the recommendations made in earlier reports. Where both can co-exist, all the recommendations should be implemented. But where they stand in derogation to each other, those made herein should be implemented because the previous recommendations may not have found favour with the Government.

4.17. The Law Commission wants to reiterate that the recommendation for splitting the Court into two halves deserves to be implemented.1 The present Law Commission has an additional reason for reiterating the recommendation. 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 report, 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. LCI, 95th Report.

4.18. The Law Commission in its earliest quest for solution was faced with unending prolix, long arguments in the Supreme Court covering days and months, yet it did not recommend total abolition of oral arguments.1 Even though it has been said that arrangements have been made to curtail arguments on any one side not exceeding five hours in any given case, this is not effectively implemented. To take the recent example, an appeal after two concurrent findings of the Sessions Court and the High Court is being heard in the Supreme Court by a Bench of three Judges for more than ten weeks.2

Therefore, it is now inevitable that this reverential approach to oral arguments must yield to the necessities of time. There are a number of cases which can be identified by the Chief Justice of India in which oral arguments can be totally dispensed with. Petitions for special leave which can be admitted without oral arguments need not be listed in Court but must be admitted by circulation.

Those in which it is necessary to have arguments, the hearing may be confined to a period not exceeding half an hour. In matters listed for final hearing, the Court must prescribe the time in advance and strictly adhere to it. The Courts must be empowered to dispense with oral arguments and insist upon written briefs.

1. LCI, 99th Report.

2. Appeal arising out of the assassination of Smt. Indira Gandhi, the former Prime Minister of India.

4.19. The Judges of the Supreme Court rightly complain of a very heavy unbearable workload. Quicker the hearing, larger number of judgments come to the share of a Judge. A written opinion requires lot of concentration and very little time is available to the Judges to concentrate on the same. The situation has the inbuilt tendency to delay delivering judgments. It is, therefore, now time to empower Judges to dispose of cases without written opinion.

It would be open to the Bench to pronounce that the appeal is allowed or is dismissed or the order of the High Court is varied without reasons. Supreme Court decision being final, it is not necessary for it to give reasons for the benefit of any other tribunal. The written opinions must be pronounced in matters involving constitutional niceties or moot points of law which often occur before High Courts and Courts subordinate to High Courts to ensure continuity and certainty of law.

In all other cases, the written opinions may be dispensed with and appeals may be disposed of without assigning reasons. There is nothing novel or radical in this suggestion. Those who are the admirers of the working of the Supreme Court of the United States must also accept its way of working. Whereas the Supreme Court of U.S. gives reasoned opinions in only a few matters, a large number of matters are disposed of without assigning reasons.

To illustrate, in 1983-84 term of the Court, of the 5,155 cases on its dockets, it disposed of 4,162 with finality. But of those many cases the Court disposed of, it decided only 285 on the merits, with full written opinion handed down in just 163 cases (an average number), the remainder being disposed of either per curiam or by memorandum orders [e.g., affirmed, reversed or dismissed (i.e., vacated)].1 This practice deserves to be accepted and implemented to relieve the unbearable burden on the Judges of the Court.

1. Source: Henry J. Abraham The Judicial Process, 5th Edn., pp. 187-190.

4.20. The country is fast moving towards 21st century. But its legal processes are as antiquated as antiquity can be. Modern technological advances have passed by justice system. Apart from more sophisticated software facility, primary necessity such as telex, was not available in the Supreme Court till recently. Computerisation of its Registry, though talked about, has still not been accomplished. Computerisation of library is a high priority necessity.

The Court's time is wasted in collecting judgments bearing on the same subject. A push button system should be available to make handy all judgments on the same subjects. Cases covered by earlier judgments of the Court must be grouped together by a computer. Judges should be provided with dicta-phone so that their time may not be wasted in waiting for the availability of a stenographer. These and many other technological advances deserve to be introduced in the Supreme Court forthwith.

4.21. These are all the recommendations.

The Supreme Court - A Fresh Look Back

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