Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO.36 of 2016
V. VASANTHAKUMAR ...PETITIONER
VERSUS
H.C.BHATIA AND ORS. ...RESPONDENTS
J U D G M E N T
T.S. THAKUR, CJI.
1. This petition, filed in public interest, raises
questions touching possible structural reforms at the
highest echelons of the Indian judicial system. Similar
questions have been addressed in the past not only by the
Law Commission but also by this Court on the judicial
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side. We may briefly refer to the same to place the
issues that fall for determination in proper perspective.
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2. In its 14 Report dated 26 September, 1958, the Law
Commission of India advocated the need for a restrained
approach towards grant of special leaves to appeal
against judgments and orders passed by the High Courts.
The Commission felt that a liberal grant of leave to
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appeal had the tendency to adversely affect the prestige
of the High Courts. It said:
“(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.”
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3. Then came the 95 report dated 1 March, 1984 in
which the Law Commission proposed the setting up of a
Constitutional Division within the Supreme Court, in the
following words:
“6.4 If the proposed constitutional
division is to be created, it will have
to be assigned a part of the business of
the Supreme Court within its
jurisdiction as at present provided.
The second issue that falls to be
considered is, what matters should be
assigned to that division. In this
connection, there are two principal
alternatives to be considered as per (a)
and (b) below:
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(a) This division may be entrusted with the
adjudication of all public law cases
within the Supreme Court’s jurisdiction.
If this alternative is accepted, its
jurisdiction would comprise–
(i) every case involving a
substantial question of law as to
the interpretation of the
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Constitution, or an order or rule
issued under the Constitution;
(ii) every case involving a question
of Constitutional law, not
falling within (1) above;
(iii) every appeal against the decision
of a High Court, rendered under
Article 226 of the Constitution;
(iv) every appeal against the decision
of a tribunal under article 136
of the Constitution (whether such
tribunal is created by law passed
by virtue of article 323-A or
Article 323-B of the Constitution
or otherwise), where a question
of administrative law is
involved.
(b) In the alternative, only matters of
Constitutional law may be assigned to
the proposed Constitutional Division. If
this alternative is accepted, its
jurisdiction would only the items (i)
and (ii) mentioned in (a) above. The
jurisdiction would then cover only the
following:
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(i) every case involving a substantial
question of law as to the
interpretation of the Constitution or
an order or rule issued under the
Constitution, and
(ii) every case involving a question of
constitutional law, not falling within
(i) above.
Our preference is for alternative (b)
above. It is easier to define precisely
and locate such matters, confined to
constitutional law proper. We
appreciate that question of
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constitutional and administrative law
often dovetail into each other,
particularly in proceedings under
article 226 of the Constitution (which
may reach the Supreme Court on appeal).
But, in our opinion, it would be
desirable to make the jurisdiction of
the proposed division narrow and
compact, at least for the present.
Accordingly, we recommend that the
proposed Constitutional Division of the
Supreme Court should be entrusted with
the cases of the nature mentioned in
alternative (b) above. It follows that
other matters coming to the Supreme
Court will be assigned to its Legal
Division.
6.5. Of course, the creation of two
divisions in the abstract does not end
the matter. For practical implementation
of the proposed scheme, it will be
necessary to deal with at least two
concrete matters, namely, (1) when can a
constitutional issue be said to be
“involved” and (ii) what will be the
machinery for allocating cases between
two divisions.
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As to the first matter, which
relates to the criterion to be adopted,
we should make it clear that a case
should be regarded as “involving a”
constitutional issue only when the
decision of that issue is absolutely
necessary for the disposal of the
controversy. The mere fact that a party
has raised a constitutional issue is not
enough. Although, it may not always be
possible to determine at the outset (at
the time of allocation of the case),
whether the case “involves” a
constitutional issue in the above sense,
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it may still be useful to bear this
aspect in mind”
4. Two years later in Bihar Legal Support Society v.
Chief Justice and Others (1986) 4 SCC 767, a Constitution
Bench of this Court while disposing of a Writ Petition in
which the petitioner had prayed for adoption of a uniform
approach and sensitivity in special leave petitions filed
by the less fortunate of the litigants as was shown in
the case of two big industrialists for whom the Court had
held a late night sitting to consider their prayer for
bail, held that special leave petitions filed by “small
men” were entitled to the same consideration as is given
to those filed by “big industrialists”. This Court
declared that it had always regarded the poor and the
disadvantaged to be entitled to preferential
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consideration over the rich and the affluent, the
businessmen and the industrialists. That is because the
weaker section of the Indian humanity had been deprived
of justice for several years on account of their poverty,
ignorance and illiteracy, and on account of their social
and economic backwardness and resultant lack of capacity
to assert their rights. This Court rejected the
suggestion that it was not giving to the “small men” the
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same treatment as it was giving to the “big
industrialists”.
5. Having said that, this Court declared that it was
never intended to be a regular court of appeal against
orders made by the High Courts and the Sessions Courts or
the Magistrates. It was created as an apex court for the
purpose of laying down the law for the entire country and
for that purpose it was given the extraordinary
jurisdiction to grant special leave to appeal under
Article 136 of the Constitution so that it could
interfere whenever it found that the law was not
correctly appreciated or applied by the lower courts or
tribunals. The jurisdiction was also held to be available
for correction of grave miscarriage of justice. More
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importantly, this Court held that every case, where the
apex court finds some error, need not be entertained for
otherwise, the Court would become a regular court of
appeal and be reduced to a position where it will not be
able to remedy any injustice at all, on account of the
tremendous backlog of cases which will get accumulated.
This Court said:
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“We must realise that in the vast majority
of cases the High Courts must become final
even if they are wrong. The apex court can
also be wrong on occasions but since there
is no further appeal, what the apex court
says is final. That is why one American
Judge said of the Supreme Court of the
United States: “We are right because we
are final: we are not final because we are
right”. We must, therefore, reconcile
ourselves to the idea that like the apex
court which may be wrong on occasions, the
High Courts may also be wrong and it is
not every error of the High Court which
the apex court can possibly correct. We
think 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 the 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. But until any such policy decision
is endorsed by the government, the apex
court must interfere only in the limited
class of cases where there is a
substantial question of law involved which
needs to be finally laid at rest by the
apex court for the entire country or where
there is grave, blatant and atrocious
miscarriage of justice.”
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6. The Law Commission of India took another two years
after the above observations to reiterate its
recommendation whereunder it had proposed the splitting
of the Court into two divisions. While doing so the Law
Commission gave an additional reason namely the handicap
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which the litigant from more distant parts of the Country
like Tamil Nadu in South, Gujarat in the West and Assam
and other States in the East face in the matter of
accessing justice before the Supreme Court. The
Commission observed:
“......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 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
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 required to travel to long
distances. Whenever questions of
constitutionality occur, as pointed out in
that report, the Supreme Court can sit in
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.”
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7. Then came the 229 report dated 5 August, 2009
submitted by the Law Commission, whereunder, it once
again recommended restructuring of the Supreme Court by
setting up of a Constitution Bench at Delhi and Cessation
benches in four regions namely; Delhi, Chennai/Hyderabad,
Kolkata and Mumbai. Drawing support from the system
prevalent in other countries like Italy, Egypt, Portugal,
Ireland, United States and Denmark the Commission
recommended that:
“(1) A Constitution Bench be set up at
Delhi to deal with constitutional and
other allied issues as aforesaid.
(2) Four Cassation Benches be set up in
the Northern region/zone at Delhi, the
Southern region/zone at
Chennai/Hyderabad, the Eastern
region/zone at Kolkata and the Western
region/zone at Mumbai to deal with all
appellate work arising out of the
orders/judgments of the High Courts of
the particular region.
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(3) If it is found that Article 130 of the
Constitution cannot be stretched to
make it possible to implement the
above recommendations, Parliament
should enact a suitable legislation/
Constitutional amendment for this
purpose.”
8. In Mathai @ Joby v. George & Anr ., (2010) 4 SCC 358,
this Court was once more confronted with the question
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whether Special Leave Petitions should or should not be
entertained against every kind of order. This Court
noticed that Special Leave Petitions were being filed by
the litigants against almost every kind of order
resulting in piling up of huge arrears and converting
this Court into an ordinary appellate court which was
never the intention of the framers of the Constitution
when they enacted Article 136 and empowered the Supreme
Court to intervene by granting special leave to appeal to
an aggrieved litigant. Relying upon the decisions of this
Court in N. Suriyakala v. A. Mohandoss (2007) 9 SCC 196,
Bengal Chemical & Pharmaceutical Works Ltd. v. Employees
AIR 1959 SC 633, Kunhayammed v. State of Kerala (2000) 6
SCC 359, State of Bombay v. Rusy Mistry AIR 1960 SC 391,
Municipal Board, Pratabgarh v. Mahendra Singh Chawla
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(1982) 3 SCC 331, Ram Saran Das and Bros. v. CTO AIR 1962
SC 1326, Pritam Singh v. State AIR 1950 SC 169, Tirupati
Balaji Developers (P) Ltd. v. State of Bihar (2004) 5 SCC
1, Jamshed Hormusji Wadia v. Port of Mumbai (2004) 3 SCC
214, Narpat Singh v. Jaipur Development Authority (2002)
4 SCC 666, Ashok Nagar Welfare Assn. v. R.K. Sharma
(2002) 1 SCC 749, this Court held that the exercise of
jurisdiction under Article 136 of the Constitution by the
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Supreme Court was discretionary and that the provision
did not confer a vested right of appeal to a party in
litigation.
9. This Court further held that the extraordinary
jurisdiction vested by the Constitution implied that the
Court ought to exercise extraordinary care and caution
while making use of that power. Having said that this
Court lamented the filing of special leave petitions
against all kind of orders of the High Court or other
authorities without realising the true scope of Article
136 of the Constitution thereby giving rise to an
alarming situation whereby this Court had converted
itself into a mere court of appeal as though it was
obliged to correct every error which it found in any
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judgment delivered by any Court or Tribunal exercising
jurisdiction under any statute.
10. On a conspectus of the dimensions of the question
this Court held that exercise of jurisdiction under
Article 136 of the Constitution should be limited to
certain specific category of cases and referred the
question of interpretation of Article 136 to a
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Constitution Bench in the light of Article 145(3) of the
Constitution.
11. The Constitution Bench, however, declined to look
into the question of interpretation of Article 136 of the
Constitution or to enumerate the circumstances in which
the extraordinary power vested in this Court under the
said provision could or ought to be exercised. Relying
upon the decisions of this Court in Pritam Singh v. The
State 1950 SCR 453 at page 457 Penu Balakrishna Iyer &
Ors v. Ariya M. Ramaswami Iyer & Ors. (1964) 7 SCR 49 at
Page 53 and Union Carbide Corporation & Ors. v. Union of
India & Ors. (1991) 4 SCC 584, the Constitution Bench
held that power under Article 136 had to be exercised
with circumspection but considered it unnecessary to
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limit the use thereof forever by a process of
interpretation. The Court was of the view that the
question referred to the Constitution Bench stood
answered by the three decisions mentioned above.
12. It is in the above backdrop that the petitioner who
is a practicing Advocate has filed the present petition
in which he has sought a mandamus directing the
respondents to consider his representation and to take
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steps for implementation of the suggestion of the
Constitution Bench of this Court in Bihar Legal Support
Society’s case (supra) by establishing a
National/Regional Courts of Appeal.
13. When the writ petition came up for preliminary
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hearing before us on 26 February, 2016, while issuing
notice, we requested Shri Mukul Rohatgi, learned Attorney
General for India to assist us in the matter. In
addition, we requested Shri K.K. Venugopal and Shri
Salman Khurshid, learned Senior Counsel to appear and
assist the Court as Amicus Curiae .
14. We have, accordingly, heard at some length the
petitioner, the learned Attorney General and the learned
Amicus Curiae . We have also heard at some length Shri
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Andhyarujina who intervened to make his submissions in
support of the prayer made in the writ petition. Relying
upon a report prepared by Vidhi Centre for Legal Policy
on “the need for efficient and effective Supreme Court”
by reference in particular to the issues of backlog and
regional disparities in access to justice, Mr. Venugopal
argued that the statistics quoted by Vidhi and the
analysis thereof based on round table discussions with
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several eminent lawyers and jurists, clearly established
that the Supreme Court had strayed from its original
character as a Constitutional Court and gradually
converted itself into a mere court of appeal to correct
every error it found in the decisions of the 24 High
Courts and numerous Tribunals subordinate to it.
15. The jurisdiction of the Supreme Court, argued Mr.
Venugopal, was now being invoked in relation to matters
falling within 45 categories listed in the Practice and
Procedure Handbook. It was submitted that there was an
urgent need for a comprehensive re-appraisal of the role
of the Supreme Court and the need for restoring its
exclusivity as suggested by Shri Andhyarujina in his
article “Studying US Supreme Court Working” 1994 (4) SCC
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Journal 1. It was urged that filing of cases in the
Supreme Court since 1950 had increased exponentially for
as against 1215 cases filed in total in the Supreme Court
in the year 1950 the total number of cases filed in the
year 2014 (Upto November) were no less than 81,853. This
argued Mr. Venugopal showed a cumulative annual growth
rate of 6.8 per cent per year. It also suggested that
the number of cases filed in the Supreme Court doubled
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every year or so and the trend continued. The Supreme
Court was by that standard likely to be facing a burden
of nearly 1.5 lakh cases by the year 2025.
16. Shri Venugopal, further argued that on account of the
distance at which the Supreme Court is located from other
parts of the country, access to justice before the
Supreme Court had been adversely effected in as much as
litigants from far off places were unable to reach the
Supreme Court as against those from High Courts that are
closer in proximity. This according to the learned
Counsel denied equal justice to citizens from these far
off places in breach of the Constitutional mandate of
equal access of justice to all. According to the learned
counsel the lack of access had led to a demand for
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Regional Benches of the Supreme Court in different parts
of the country or for setting up of National/Regional
Courts of Appeal. Shri Venugopal drew our attention to
the position in other countries, where too, because of
the huge backlog of cases, the systems had been reformed
to provide Courts of Appeal as an intermediary Court
between the High Courts and the Supreme Court. He
referred to a speech delivered by Hon’ble Mr. Justice
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Susan Delham, Chief Justice of Ireland to argue that
despite several initiatives like case management, use of
information technology, mediation for amicable settlement
encouraged by the Courts, the burden that came to fall
upon the Irish Supreme Court was making it difficult for
that Court to cope up with the situation. The solution
which a working Group suggested was referred to by the
Chief Justice of Ireland in the following passage of his
speech:
“Solution
The solution advocated by the Working
Group on a Court of Appeal in the report
published in 2009 was the establishment of
a Court of Appeal. This would be a
permanent court which would have several
divisions, to hear appeals in civil cases
and to hear appeals in criminal cases.
Thus, there would be a permanent Court of
Appeal, with permanent judges on that
Court, which would sit in several
divisions – civil and criminal.
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All the other common law countries
have a Court of Appeal in their legal
system, placed between the Courts
equivalent to our High Court, and the
Supreme Court.”
17. The Indian story was no different contended
Mr.Venugopal. The working of the Supreme Court and the
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ever increasing burden which has grown to almost
unmanageable limits has made it extremely difficult for
the Judges of this Court to contain the piling arrears to
a reasonable limit making it necessary for this Court to
examine the possibility of structural reforms and to make
suitable recommendations to the Government for taking
corrective measures including a possible amendment of the
Constitution.
18. Shri Andhyarujina while adopting the submissions made
by Shri Venugopal submitted that because of increased
awareness, legal literacy, development and resultant
prosperity in the country, the number of cases is bound
to increase. Experience shows that these cases leave
little time for the Court to take up important
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constitutional matters which ought to engage the
attention of this Court as its primary duty. He urged
that it is time to give a thought to the formidable
challenge that judiciary is facing at the highest level
and to push reforms that would not only restore this
Court to the glory it was meant to enjoy but also make
access to justice a reality by setting up Courts of
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Appeal which can be approached by every litigant without
having to travel long distances to Delhi.
19. Mr. Rohatgi, learned Attorney General, on the other
hand argued that the Writ Petition was not maintainable
as the petitioner has suppressed certain important facts
which disentitle him to relief. It was also contended
that the proposed National Court of Appeal or Regional
Courts of Appeal were neither constitutionally
permissible nor otherwise feasible. He contended that
Article 136 of the Constitution gives to the citizens of
this country an inalienable right to invoke the appellate
power of this Court. That power being a basic feature of
the Constitution, it could not be taken away or conferred
upon another Court or forum. Mr. Rohatgi submitted that
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what was perhaps required was self restraint by this
Court in the matter of entertaining special leave
petitions as it was not necessary for this Court to
correct every error committed by the High Court or the
statutory Tribunals set up to decide cases involving
different subjects and dimensions.
20. We have given our anxious consideration to the
submissions made at the Bar. Certain facts are beyond
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dispute. It is not in dispute that the Supreme Court was
never meant to be a regular court of appeal. It was meant
to exercise its powers under Article 136 of the
Constitution only in cases which raised important
questions involving interpretation of the Constitution or
questions of general public importance or questions of
constitutionality of State or Central legislations or
those raising important issues touching Centre-State
relationship etc. The jurisdiction may also have been
available to the Court where it found gross miscarriage
of justice or an error so outrageous as no reasonable
person would countenance. The power to interfere was not
meant to be exercisable just because prolonged argument
would eventually reveal some error or irregularity or a
possible alternative view on a subject that did not cause
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any miscarriage of justice of a kind that would shock the
conscience of the court on the subject. The long line of
decisions of the Court to which we have made reference
earlier supports that view. The fact, however remains
that the filing of cases in the Supreme Court over the
past six decades has grown so sharply that the Judge
strength in the Supreme Court is proving inadequate to
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deal with the same. Statistics show that more than 3/4
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of the total number of cases filed are dismissed in
limine. Even so, the dismissal is only after the court
has applied its mind and heard arguments which consume
considerable time of the Judges. Dismissal of an
overwhelming number of cases has not and does not
discourage the litigants or the member of the Bar from
filing cases. That is why the number of cases filed is on
the rise every year.
21. It is common knowledge that the huge backlog of cases
in the Supreme Court not only attracts criticism from the
litigant public but also from independent observers of
the judicial systems. To add to the woes of the Court
there are a number of new legislations which provide for
a first appeal to the Supreme Court, a role which the
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Supreme Court was never intended to play in the
Constitutional scheme. Suffice it to say that the
pronouncement of this Court sounding notes of caution
against liberal grant of special leave to appeal or
exercise of restraint in the matter of entertaining cases
have lead to no meaningful improvement in the situation.
22. What then is the way forward? M/s. Venugopal and
Andhyarujina argue that the way forward is setting up of
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Regional Courts of Appeal, firstly, because the same
would take justice closer to the doorsteps of the
litigants, especially those living at distant places and
secondly, because an intermediary court would reduce the
burden of the Supreme Court without denying to the
litigants an opportunity to agitate his case before a
court higher than the High Court. The only difference in
that situation will be that in place of the Supreme Court
the Court of Appeal would look into the matter and
correct whatever needs to be corrected in the judgment
impugned before it. It is in that backdrop that following
questions arise for our consideration:
1.With access to justice being a fundamental right,
would the said right stand denied to litigants, due
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to the unduly long delay in the disposal of cases
in the Supreme Court?
2.Would the mere increase in the number of judges be
an answer to the problem of undue delay in disposal
of cases and to what extent would such increase be
feasible?
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3.Would the division of the Supreme Court into a
Constitutional wing and an appellate wing be an
answer to the problem?
4.Would the fact that the Supreme Court of India is
situate in the far North, in Delhi, rendering
travel from the Southern states and some other
states in India, unduly long and expensive, be a
deterrent to real access to justice?
5.Would the Supreme Court sitting in benches in
different parts of India be an answer to the last
mentioned problem?
6.Has the Supreme Court of India been exercising
jurisdiction as an ordinary court of appeal on
facts and law, in regard to routine cases of every
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description?
7.Is the huge pendency of cases in the Supreme Court,
caused by the Court not restricting its
consideration, as in the case of the Apex Courts of
other countries, to Constitutional issues,
questions of national importance, differences of
opinion between different High Courts, death
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sentence cases and matters entrusted to the Supreme
Court by express provisions of the Constitution?
8.Is there a need for having Courts of Appeal, with
exclusive jurisdiction to hear and finally decide
the vast proportion of the routine cases, as well
as Article 32 petitions now being decided by the
Supreme Court of India, especially when a
considerable proportion of the four million cases
pending before the High Court may require review by
a higher intermediate court, as these judgments of
the High Courts may fail to satisfy the standards
of justice and competence expected from a superior
court?
9.If four regional Courts of Appeal are established,
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in the Northern, Southern, Eastern and Western
regions of the Country, each manned by, say,
fifteen judges, elevated or appointed to each Court
by the Collegium, would this not satisfy the
requirement of ‘access to justice’ to all litigants
from every part of the country?
10. As any such proposal would need an amendment to
the Constitution, would the theory of ‘basic
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structure’ of the Constitution be violated, if in
fact, such division of exclusive jurisdiction
between the Supreme Court and the Courts of Appeal,
enhances the efficacy of the justice delivery
system without affecting the independence of the
judicial wing of the State?
11. In view of cases pending in the Supreme Court of
India on average for about 5 years, in the High
Courts again for about 8 years, and anywhere
between 5-10 years in the Trial Courts on the
average, would it not be part of the responsibility
and duty of the Supreme Court of India to examine
through a Constitution Bench, the issue of
divesting the Supreme Court of about 80% of the
pendency of cases of a routine nature, to recommend
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to Government, its opinion on the proposal for
establishing four Courts of Appeal, so that the
Supreme Court with about 2500 cases a year instead
of about 60000, may regain its true status as a
Constitutional Court?
23. Keeping in view the importance of the above questions
and the need for reforms which have been long felt, we
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deem it proper to refer the same to a Constitutional
Bench for an authoritative pronouncement. The Registry
shall, accordingly, place the record before the Hon’ble
Chief Justice for constituting an appropriate bench.
.................CJI.
(T.S. THAKUR)
...................J.
(R. BANUMATHI)
...................J.
(UDAY UMESH LALIT)
NEW DELHI;
JULY 13, 2016.
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