Report No. 125

Chapter V

Portent

5.1. Consistent generally with the approach of Law Commissions since their initiation that a very radical departure from the existing system is not recommended, in the opinion of the present Law Commission, situation has by now deteriorated to such an extent that it is time to utter a warning to all the affected interests that the next step would be something beyond the conception of any of those interests.

Without repeating what has been stated that the Supreme Court by the sheer weight of its arrears has reached the crisis level situation, yet its identity and genius has not been tampered with. However, what the Founding Fathers of the Constitution foresaw even at the time of the framing of the Constitution, the same cannot be ignored when a time has come to take the step envisaged in the Constitution.

5.2. Article 124 of the Constitution provides for the setting up of a Supreme Court at the apex of the judicial hierarchy of the country. It was to be the court of last resort, of course subject to Article 32. Jurisdiction of widest amplitude was conferred upon it so that unhampered by any procedural wrangle it can stave off miscarriage of justice or redress a wrong. Therefore, the Supreme Court of India has its own specific individual identity. It has its own genius.

It has its own capability. It can reach any nook and cranny to undo injustice. But it was expected that it would exercise its jurisdiction with restraint and wisdom so that it would not be tied down in its own knots, including one of arrears, which, as pointed out,1 has compelled the Court to shut its own doors to the litigants knocking at its doors.

1. (1987) 4 SCC 609: AIR 1987 SC 1159.

5.3. The Law Commission is fully conscious of the fact that all the difficulties, troubles and tribulations which the Supreme Court is facing, it has still a place in the heart of the common men of the country. They look upon it with reverence. Undoubtedly, the credibility is taking a nose dive on the only ground of its inability to render justice within a reasonably short time.

But this situation, it is hoped, can be repaired and considerably improved if the recommendations made in this report are implemented in letter and spirit. If unfortunately, as the past experience shows, some further indifference is shown to the recommendations, the Law Commission would not be failing in its duty to suggest radical measures of a surgical nature.

5.4. Article 32 confers a fundamental right to move the Supreme Court on the complaint of violation of fundamental rights. The Supreme Court has jurisdiction and powers to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate for the enforcement of any of the rights conferred by Part III of the Constitution.

It was assumed that the Supreme Court at the apex of the judicial hierarchy retaining its corporate character an identity will be able to meet with the challenges of time. But the Founding Fathers were men of vision who foresaw that if the Supreme Court fails and falters, one need not throw up the hands in despair. Therefore, clause (3) of Article 32 was enacted. It reads as under:

"Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).".

5.5. If one Supreme Court with its corporate structure retaining its identity fails to meet the challenges of time, the Founding Fathers envisioned setting up of as many Supreme Courts as the needs of the situation demand. This is inherent in clause (3) of Article 32. Let not narrow wrangling of interpretation permit missing the core of the article. If on any existing court power of Supreme Court can be conferred, ipso facto the Parliament can create a new court and confer power of Supreme Court on it.

And the germ of it lies in the earlier reports of the Law Commission1 which may permit those apex court/tribunals to be conferred with jurisdiction of Supreme Court in their respective fields. The direction in which the Law Commission is forced to move is herein indicated. It is hoped the Law Commission may not have to invoke it.

1. LCI, 115th, 122nd and 123rd Report.

D.A. Desai,
Chairman.

V.S. Rama Devi,
Member-Secretary.

New Delhi,
Dated: 11th May, 1988.