The Supreme Court’s decision to create a permanent Constitution Bench and single benches is appealing as it could cut delays, but much depends on how these are conceived and the CJI’s discretion

By Venkatasubramanian

On September 17, the Supreme Court, through a gazette notification, amended the Supreme Court Rules, 2013, to enable a judge sitting singly, nominated by the chief justice, to hear and dispose of certain categories of matters. These include special leave petitions (SLPs) arising out of grant, dismissal or rejection of a bail or anticipatory bail application involving offences punishable with a sentence up to seven years’ imprisonment. Another category is applications for transfer of cases and appeals from one High Court to another or from a criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court. The third category includes applications of an urgent nature for transfer of cases under Section 25 of the Code of Civil Procedure, which enables the Court to transfer any suit, appeal or other proceeding from a High Court or another civil court in one state to a High Court or another civil court in any other state. The fourth category includes cases notified by the chief justice of India (CJI) from time to time.

But the crucial reform which the CJI, Ranjan Gogoi, sought to achieve without amending the rules is to create a permanent Constitution Bench of five judges to hear and decide key cases, raising substantial questions of law and the Constitution. This became possible with the Supreme Court’s strength rising from 31 to 34 and the Court functioning with its full sanctioned strength, thanks to the timely filling up of vacancies.

The Supreme Court, in its initial years, comprised only eight judges and all of them used to sit en banc to hear most cases, lending it a greater degree of coherence, which may be missing when the Court sits in division benches of two or three judges. The sanctioned strength of judges, however, kept rising from eight to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986 and 31 in 2008.

During the framing of India’s Constitution, a proposal to enable the Court to sit en banc to decide all cases was mooted by the eminent United States Supreme Court judge, Felix Frankfurter, when India’s constitutional adviser, BN Rau, met him seeking his suggestions. But Justice Frankfurter’s advice was ignored as India saw merit in increasing the judges’ strength to answer the growing pendency of cases in the Supreme Court.

The result has been that the Supreme Court departed further from the framers’ ideal of a Court exclusively dealing with substantial questions of law and the Constitution rather than functioning merely as an appellate court. The indiscriminate admission of SLPs in the Supreme Court by the division benches, even in cases not raising substantial questions of law and the Constitution, made the Court lose its direction and significance amidst its unmanageable docket explosion.

Therefore, by increasing the strength of Supreme Court judges, the CJI might think that with more Justices, it would be possible to have the luxury of a permanent Constitution Bench. The Court has often been deterred from setting up such a bench because of the huge rise in pendency of cases to be dealt with by benches of smaller strength of two or three judges.

Indeed, the Supreme Court’s Constitution Bench had held in Bihar Legal Society v Chief Justice of India (1986) that the Court was never intended to be a regular court of appeal against orders made by High Courts. It was created as an apex court for the purpose of laying down the law for the entire country. Extraordinary jurisdiction for granting special leave was conferred upon it under Article 136 of the Constitution, only to enable it to interfere in exceptional cases when the law was not correctly enunciated by lower courts or tribunals and it was necessary to pronounce the correct law on the subject. In other words, this jurisdiction is to be exercised by the apex court only to correct grave miscarriage of justice.

Not every error of High Courts was supposed to be corrected by the Supreme Court. The Supreme Court is infallible because it is final. It is not final because it is infallible. Review and curative jurisdictions are meant to enable the Supreme Court to correct its own errors. High Courts as Constitutional Courts are not inferior in our justice delivery system. Therefore, the tendency to consider the Supreme Court as the sole appellate authority for all cases must be resisted to enable it to perform its role as the interpreter of the Constitution far more effectively than it can at present. The plea to create  National Courts of Appeal in the four regions of the country, which the Supreme Court has referred to a Constitution Bench, aims to address this dilemma. This will allow the Supreme Court, with a smaller strength, to confine itself to cases of constitutional importance.

The Supreme Court currently has 553 Constitution Bench matters to be heard and decided. If similar cases are grouped together, this figure could come down to 56. Of these, 46 are five-judge bench matters, while five each are seven and nine-judge bench matters.

It is important that Constitution Bench matters are heard and decided expeditiously. Early decisions in such matters help reduce pendency of cases as well as contribute to the smooth functioning of democracy without friction between various constitutional functionaries and units.

When Constitution Benches are not constituted for want of sufficient judges, cases in due course become infructuous or enable one party in the dispute to gain undue advantage due to the delay. In recent history, petitions challenging the constitutionality of demonetisation are likely to become infructuous because the Supreme Court could not constitute a Constitution Bench in time to hear and decide them. Petitions challenging the constitutionality of Aadhaar too suffered because initially the Court kept them pending for long for want of a sufficient number of judges to constitute a nine-judge bench to decide whether the right to privacy is a fundamental right. When the Court did constitute a nine-judge bench to hear the matter, it was too late, as in the meantime, the centre made Aadhaar a fait accompli, ignoring the Court’s interim directions to limit its scope. A five-judge bench, which heard the matter much later, found no inconsistency between the right to privacy and the mandatory requirement of Aadhaar by the state for distributing benefits and services.

The idea of a permanent Constitution Bench is, therefore, appealing because it could do away with unintentional delay in hearing important matters before they become infructuous. But the composition of the bench could become controversial as the experience during the term of former CJI Dipak Misra shows.

The CJI-led five-judge bench heard and disposed of several cases during his tenure. However, the exclusion of senior judges who disagreed with the style of leadership of the CJI from that bench made many question whether it was the right approach. As the administrative head of the Supreme Court, the CJI enjoys certain discretion in allocating cases to judges and in choosing judges to sit on Constitution Benches. Studies have shown that in recent history, the chief justices sitting on Constitution Benches were mostly on the side of the majority in case of a split. Thus, the question whether the CJIs choose judges to sit on the benches keeping a “desirable result” in mind arises.

Much, therefore, depends on how a permanent Constitution Bench is conceived of, what its size would be and whether its composition does not unduly depend on the discretion of the CJI, etc. Short of a rational criterion in these aspects, the idea of a permanent Constitution Bench, even if appealing to many, may not yield satisfactory results. It is also not clear whether benches of smaller strength could refer cases to be heard by a permanent Constitution Bench or whether the latter could independently decide which cases to hear after hearing the litigants directly at the threshold. Coming to the move to create single-judge benches in the Supreme Court, it has provoked sharp criticism from the Supreme Court Bar Association (SCBA). In a letter to the CJI, the SCBA expressed shock that amendment to Order VI Rule 1 of the Supreme Court Rules 2013 to provide for single-judge benches was brought without consultations with it. The SCBA, declaring itself as the major stakeholder in the process of dispensation of justice in the Supreme Court, requested the CJI not to put this amended rule into force but take urgent steps to recall it.

Sources close to the SCBA claim that the rule creating single-judge benches has been opposed because it is believed that judges sitting singly would not be able to decide complex issues that could arise in cases meant for them. Another uncertainty is whether instances of conflicting decisions of different benches of the Court could multiply if judges sit singly, leaving the Court to speak in different voices and rendering it more incoherent than what it is today. If single judges interpret precedents differently and render inconsistent judgments, their rulings are likely to be listed for resolution before division benches of two or more judges, adding to wastage of the Court’s time and leading to a backlog.

It remains to be seen how these two decisions pan out.