Demands for Structural Changes in the Supreme Court of India: A Historical Overview (Part 2)

[ Ed Note: This is part 2 of a two-part series on the history behind the demand for structural changes in the Supreme Court of India. Part 1 can be accessed here ]

While the institutional division model has been adopted by a few countries like Egypt, France, Italy, the regional benches model seems to be rarely adopted. Perhaps Pakistan is one such country which has multiple regional benches of its Supreme Court [“SC”]. The second part of the article deals with the historical claim relating to the demand for regional benches and the empirical findings in support of the same. However, this piece is India-specific and does not look at experiences of other countries which have adopted these structural changes in their higher judiciary.

Phase II – Ambedkar’s Clarification on Article 130

In the second phase of history, debate in the Constituent Assembly revolved around the question of having regional benches of the SC. This question arose while debating and discussing Article 130 (draft Article 108A) of the Constitution. Article 130 states, “The Supreme Court shall sit in Delhi or in such other place or places, as Chief Justice of India may, with the approval of the President, from time to time, appoint”. The members of the Assembly raised two important questions on the draft Article: first, why did the word Delhi occur in draft Article 108A?; and  second, can the SC have a Circuit Court in this country so long as it sits in Delhi? Answering the first question, Ambedkar said that a Court must have a defined place so that the litigants will know where to take their dispute. Further, he added that the seat of the Court must be specified in the Article itself. In this way, the presence of the word ‘Delhi’ in the draft Article 108A was justified by Ambedkar. He answered the second question affirmatively by saying that a Circuit Court is only a bench and hence, the SC can have circuit benches in this country so long as it sits in Delhi.

Findings in support of the demand for regional benches:

The study by Nick Robinson indicates that there is a correlation between geographical proximity to the SC and the appeal rate from that region. His study shows that appeals from the High Courts of Punjab & Haryana and Delhi represent a large portion of the SC’s docket. This proximity factor has then resulted in disproportionate access for those close to Delhi. One of the reasons explained is that very few litigants who stay far from Delhi can afford the costs of appellate litigation. This explanation receives more support from the study done by Theodore Eisenberg, Nick Robinson and Sital Kalantry, which shows that states with low levels of income generate fewer appeals. In addition to Nick Robbinson’s findings, we can look into the submissions made by Attorney General, K.K. Venugopal, who was the Amicus Curiae in the case of V. Vasanthakumar v. H.C.Bhatia (wherein the issue relating to establishment of regional benches was referred to a Constitutional bench). Venugopal’s arguments establish a direct link between the proximity factor and access to justice. He argues that on account of the distance between the SC and other parts of the country, access to justice to litigants from far off places has been adversely affected.

In this context, the obvious question that comes to our mind is whether the establishment of regional benches of the SC can solve the problem of disproportionate access. The same can be answered by looking at the concerns shown by members of the Constituent Assembly during the debate on Article 130 of the Indian Constitution. Jaspat Roy Kapoor, one of the members in the Assembly, said that it was necessary to hold circuit courts in order to give necessary facilities to the litigants to avoid the inconvenience of coming all the way to Delhi. Further, Ambedkar’s clarification on Article 130 helps us in understanding that it is open for the SC to have Circuit Courts anywhere in the country so long as it sits in Delhi. Therefore, by relying on Nick Robinson’s empirical findings and the clarifications on Article 130, it can be inferred that having a single bench of the SC has resulted in disproportionate access to justice, and the most feasible way to provide better access to people from different regions is by establishing regional benches of the SC.  From Ambedkar’s clarification, it is also clear that the Chief Justice of India has the power to constitute benches of the SC in other parts of the country by exercising his power under Article 130.

Oppositions

Lastly, I would like to highlight that the demands so discussed are not free from opposition. On multiple occasions i.e., in the years 2001 and 2010, the SC has opposed the demands stating that giving effect to these demands will destabilize and undermine the importance of the SC. However, the institutional division of the SC will not undermine its importance rather it will maintain a certain level of quality and quantity of constitutional adjudication. This view was also adopted by the LCI in its 95th report. There is also opposition from few Senior Advocates at the Bar who argue that instead of splitting the SC, efforts should be taken to strengthen the lower judiciary and filling vacancies in High Courts in order to dispense proper justice. There is also an argument that the issue of proximity is relevant only up to the level of High Courts and cannot be extended to the SC. This argument is problematic as the issue of High Courts is only restricted to the states whereas the issue of the SC would extend to the whole country. Moreover, the history of the demand for structural changes also throws light upon the proximity issue. Apart from this, there can also be possible opposition on different grounds including infrastructural cost, with virtual courts being an alternative to regional benches. However, a detailed cost-benefit analysis is required to address the arguments relating to infrastructural cost. Insofar as the introduction of virtual courts is concerned, as Justice Chandrachud has stated, physical hearings are the spine of the judicial system and hence, virtual courts cannot be a substitute but can be inclusive for the open court hearings.

Conclusion

In this piece, I have addressed two demands for structural changes in the SC: (i) demand based on the function of the SC and how the division of the SC into Appellate and Constitutional Court could allow the Court to decide constitutional cases efficiently; (ii) demand based on the location of the SC and how establishing regional benches could be a way to provide better access to people. After understanding the history of these demands and further building on it with the help of current empirical findings, it will not be an exaggeration to say that the need for these two structural changes in the SC is felt to be more necessary today than ever. In order to attain the goals of providing better access to all and ensuring efficiency and expediency in the process of adjudication, there is a need to put these demands – which have been left hanging without any proper direction since the pre-constitutional period – to rest!

Raghuveer R. Sattigeri is a Lawyer and his areas of interest are Constitutional Law, Welfare Rights, and Legal System Reforms.

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