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Report No. 125

1.9. By the year 1974, the arrears in Supreme Court had acquired notoriety and high visibility profile. 'All sensitive judges and lawyers have been feeling an increasing concern about the problem of growing arrears in the administration of justice. Delay made in the decision of cases at all stages inevitably leads to accumulation of arrears and these arrears have now assumed a somewhat alarming dimension.1 Thus speak the Law Commission focussing its attention on structure and jurisdiction of the highest judiciary.

Before formulating its recommendations, the Law Commission issued a comprehensive questionnaire and elicited information from all interest groups. After having closely examined the same, and being ably aided and assisted by the then Chairman of the Law Commission who himself was for long years a Judge of the Supreme Court and retired as Chief Justice of India, it made its recommendations. Only those may be dealt with here which deal with the problem of arrears and the delay in disposal of cases.

The important recommendation was that Article 134(1)(c) of the Constitution should be amended so as to restrict criminal appeals to the Supreme Court by certificate to cases where the certificate by the High Court is to the effect that the case involves a substantial question of law of general importance which needs to be decided by the Supreme Court. The Commission did not recommend any amendment in respect of appeals to the Supreme Court by special leave under Article 136 of the Constitution.

Some change was recommended as regards the procedure in respect of writ petitions before the Supreme Court in respect of trial of disputed questions of fact or the issue of ad interim orders in such petitions. The Commission was opposed to the creation of special service courts for trial of service matters as also creation of zonal courts of appeal. Therefore, the major recommendation was with regard to the eligibility for preferring criminal appeals to the Supreme Court.

1. LCI, 58th Report on Structure and Jurisdiction of the Higher Judiciary.

1.10. Within a period of five years, the deteriorating situation in the superior courts attracted the attention of the Law Commission. It dealt with delay and arrears in High Courts and other appellate courts.1 It is unnecessary to spend any time on this report because it does not deal with the problem of arrears in the Supreme Court.

1. LCI, 79th Report on Delay and Arrears in High Courts and other Appellate Courts.

1.11. During all this exercise it was felt that one of the important causes which contributes to the delay in disposal of cases and thereby enhancing the arrears was the delay in filling in vacancies in the Supreme Court and the High Courts. On a reference by the Government, the Law Commission examined the method of appointment of Judges and made certain recommendations.1 No change was suggested in the procedure as at present prescribed for appointment of Judges of the High Courts and Supreme Court.

The important recommendation was that process for filling in the vacancies must start right in earnest and every attempt should be made to avoid delay in filling in the vacancies. Since the report, no change in the method of appointment is visible and the delay in filling in the vacancies has become disturbingly longer.2

1. LCI, 80th Report on Method of Appointment of Judges.

2. LCI, 121st Report on A New Forum for Judicial Appointments.

1.12. Having examined all peripheral approaches and recommended steps for retrieving the situation in the matter of arrears and delay in disposal of cases occurring in the Supreme Court, the Law Commission, unable to escape its responsibility for suggesting radical remedial measures for expeditious disposal of causes and controversies coming before the Supreme Court, embarked upon a novel idea: whether the Supreme Court deserves to be split into two separate divisions, namely, Constitutional Division and Appellate Division.

The approach was likely to be of a radical nature and, therefore, the Law Commission issued an extensive questionnaire. It must be confessed that the response to the questionnaire, especially from the organised Bar, was very hostile. One can appreciate this hostility if, after conceding that the management of court dockets have reached a stage where impossibility is the word often repeated, yet the organised Bar did not come out with any specific concrete alternative suggestions for improving the situation and avoiding the split in the identity of the Court.

The Law Commission, recalling that in the earlier report, Zonal Court of Appeal was not favoured by the Law Commission, yet, having regard to the developing distressing situation, posed a question whether the Supreme Court be replaced by a Constitutional Court dealing exclusively with constitutional matters and establishment of a Court of Appeal as the final arbiter of disputes of law other than constitutional ones.

The Law Commission also took note of the pungent criticism that the decisions of the Supreme Court create road blocks in the way of improving the conditions of the tillers of the soil by blocking zamindari abolition statutes commentators say that, in the present day Supreme Court as it is functioning, persons of humble origin or low economic status were unlikely to get justice or be appointed as High Court Judges so that the elitist character of Judiciary may undergo a fundamental change.

The most radical and far-reaching recommendation made by the Law Commission was that it was 'desirable to create, within the highest court in the country, a machinery of a specialised character for constitutional adjudication-which is what a Constitutional Division envisages'.1 The recommendation accordingly was that the Supreme Court of India should consist of two divisions, namely:

(1) Constitutional Division, and

(2) Legal Division2 The Commission spelt out the jurisdiction of each Division and the method of allocation of cases to the two Divisions.

It also dealt with the composition of the proposed Constitutional Division and made detailed recommendations in that behalf.

1. LCI, 95th Report on Constitutional Division within the Supreme Court-A proposal for para. 6.1.

2. LCI, 95th Report.

1.13. If this recommendation had been implemented in letter and spirit, probably situation could have been very much retrieved. The present report does not derogate from the recommendation made in the 95th Report. Non-implementation of the report leaves one guessing as to whether the split is obnoxious in any manner. In fact, the Supreme Court itself has recently strongly advocated the creation of a National Court of Appeal leaving the Supreme Court to deal with constitutional matters only.

A petition was filed by Bihar Legal Support Society complaining that while the rich and affluent can persuade the court to hear a case against a policy decision taken by the court even if it be at unearthly hour, yet, in the name of policy decision, the poor and the underdog are kept away from the doorsteps of the Supreme Court. Occasion for filing the writ petition, as appears from the judgment, was that 'a Bench of the Court sat late at night on September 5, 1986, for considering the bail application of Shri Lalit Mohan Thapar and Shri Shyam Sunder Lal and that the same anxiety which was shown by this Court in taking up the bail application of these two affluent gentlemen must permeate the attitude and inclination of the Hon.

Court in all matters where question relating to the liberty of citizens, high or low, arises and that the bail application of small men must receive the same importance as the bail application of big industrialists'. Responding to this contention, a Constitution Bench, presided over by the then Chief Justice, noticed the clogged dockets of the Court which lead to such court practices as adumbrated hereinbefore and suggested a remedial measure that 'it would be desirable to set up a National Court of Appeal which would be in a position to entertain appeals by special leave from the decisions of the High Courts and Tribunals in the country in civil, criminal, revenue and labour cases and so far as the present apex court is concerned, it should concern itself only with entertaining cases, involving questions of constitutional law and public law'.1

(Emphasis supplied).

1. Bihar Legal Support Society v, Chief Justice of India, (1986) 4 SCC 767 (770).

1.14. This observation of the Constitution Bench of the Supreme Court presided over by the Chief Justice lent a powerful support to the recommendation of the Law Commission made in the 95th Report. Now if on the earlier occasion there was some visible hostility from the Bar against the suggestion for splitting the Court into two divisions, none is heard since the judgment. The institutional response of the Supreme Court is thus in favour of splitting the court.

The Government must, therefore, develop the necessary will to give effect to it; otherwise, an impression is likely to be formed that where a slight resistance comes, the will to deal with the recommendation of the Law Commission withers away forthwith. The present Law Commission accordingly lends its firm support to the recommendations made in the 95th Report as a step in the right direction, being comprehensive in character to make a dent which hitherto any other recommendation has failed to make in the backlog of cases in the Supreme Court.

1.15. In its continued search for solution, the Law Commission once again tried to suggest one more remedial measure for dealing with the developing situation in the Supreme Court. It appears that the Law Commission was of the opinion that unending oral arguments unaccompanied by written briefs consumed too much time of the court, leaving very little time for effectively dealing with more cases which has a notorious tendency to pile up arrears.

The Law Commission accordingly submitted a report1 dealing with oral and written arguing with more cases which has a notorious tendency to pile up arrears. The Law Commission at that time did not favour total elimination of the oral arguments. Neither the Government nor the Supreme Court appears to have implemented the recommendations made by the Law Commission.

1. LCI, 99th Report on Oral and Written arguments in the High Courts.

1.16. It is at this stage that the present Law Commission, charged with a duty to examine and recommend comprehensive judicial reforms, commenced its search from the grass-root level and moving upward has now reached a stage when it proposes to deal with the Supreme Court. Incidentally, the Law Commission, after having studied in meticulous detail previous reports and recommendations, reached an inescapable conclusion that pandering to the system will not improve the situation. There will have to be radical alteration in the system itself.

It is not necessary to recall the various reports submitted by file present Law Commission save and except saying that detailed recommendations have been made to the Government for decentralisation of administration of justice by creating special tribunals to deal with specialist cases which hopefully would have some impact on the inflow of work in the Supreme Court.1

Having thus a comprehensive view of what has been suggested till now and what has been attempted up till now, the present report briefly deals with the situation and would attempt to tackle the problem of arrears and delay from one more angle hitherto not recommended.

1. LCI, 114th Report on Gram Nyayalaya; 115th Report on Tax Courts; 122nd Report on Forum for National Uniformity in Labour Adjudication; 123rd Report on Decentralisation of Administration of Justice: Disputes involving Centres of Higher Education.

The Supreme Court - A Fresh Look Back

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