Beyond ‘Jugaad’: The Proposal for a National Court(s) of Appeal (Part II)

Harsh Tiwari

A national appellate court is necessary to ensure that matters of constitutional law and administrative law get the attention they deserve from the Supreme Court, thereby ensuring that India’s judiciary and its constitutional democracy can come of age.

 

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The higher judiciary of India has been in a crisis for years now due to pendency and an ever-increasing workload, to the point where the Supreme Court has turned into an ordinary appellate court whilst exercising a jurisdiction that is actually supposed to be discretionary. The first essay in this series argued how the setting up of a national appeals court, with benches in different zones of the country, would be a true systemic solution to the problem. This essay puts forth an even more significant argument in favour of setting up a national appeal(s) court. In summary, this essay argues that a national appellate court is necessary to ensure that matters of constitutional law and administrative law get the attention they deserve from the Supreme Court, thereby ensuring that India’s judiciary and its constitutional democracy can come of age.


The Supreme Court’s role as the guardian of the Constitution and the final word on public law matters has been emphasised in the words of the Constitution and the Court’s own judgments. Art. 32 of the Constitution gives the Supreme Court original writ jurisdiction over Fundamental Rights cases. As pointed out by Professor Neuborne (2003, p. 478), this kind of writ jurisdiction is denied even to the American Supreme Court in the very case that established that Court’s power of review, i.e. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). This makes both the Indian Constitution and the Supreme Court very unique, for it gives Indians “a fundamental right which can be used to protect other fundamental rights” unlike any other constitution in the world (Rakshit, 1999, p. 2380). As stated by the Full Bench in Romesh Thappar v. The State of Madras, 1950 S.C.R. 594 (Fazl Ali J. dissenting, but not on this point), the Supreme Court “cannot, consistently with the responsibility so laid upon it [under Art. 32], refuse to entertain applications seeking protection against infringements of such rights.” (e.a.)

The importance of the Court’s mandatory power to hear applications seeking protection against a breach of Fundamental Rights cannot be stressed enough. As exemplified by cases like Maneka Gandhi v. Union of India, 1978 (2) S.C.R. 621, it is this mandatory jurisdiction of the Court that lets it guard Indian citizens against the most grievous executive and legislative excesses. It is, therefore, that a seven-judge Constitutional Bench of the Court in L. Chandra Kumar v. Union of India, 1997 (2) S.C.R. 1186 (at para 77-78) has rightfully declared Art. 32 to not be capable of amendment, since it forms part of the “basic structure” of India’s Constitution (see: Khanna J. in Kesavananda Bharati v. Union of India, (1973) 4 S.C.C. 225).


Apart from the specific constitutional jurisdiction conferred by Art. 32, the Court’s oversized role as a totem pole for good governance and constitutionalism is also extremely significant. For example, as noted by Robinson (2009, p. 41), the Court has used its right to life jurisprudence under Art. 21 of the Constitution to bring about better governance by promulgating orders that, inter alia, implement more stringent enforcement of traffic regulations or ban smoking in public places. More recently, in Arjun Gopal & Ors. v. Union of India & Ors., the Supreme Court, in the exercise of its Art. 21 jurisprudence once again, has declared that only ‘Green Crackers’ could be burst during Indian festivals and, that too, during certain hours of the evening only (para 42). That the Court here behaves more like a regulator or executive entity rather than a judicial institution is borne out by the fact that it goes into the nitty-gritty of policy-making, specifically banning the use of barium salts in fireworks and prohibiting e-sales of fireworks (para 42). The Court even goes beyond its constitutional jurisprudence to justify these policy decisions by basing its conclusions on law and economics (para 37), thus leaving no illusions as to its self-designated role under Art. 21 as the arbiter of normative policy decisions rather than as a provider of substantive legal pronouncements.

Whatever one’s view may be about the propriety of the Supreme Court usurping what should ostensibly be executive decisions, there’s no doubt that the Court’s role as a bulwark against both unconstitutional activities and bad policymaking gives it a unique position of both great power and, consequently, great responsibility. So much so, that it would seem natural to presume that the Court’s workload would be dominated by constitutional and administrative law cases. This would seem to be the situation even more so due to the Supreme Court’s perceived love affair with public interest litigations. However, the truth runs contrary to this presumption in the most egregious fashion.


As pointed out in the previous article in this series, the Court functions more as an ordinary appellate court than anything else. For instance, as reported by The Hindu, upon analysing 884 of the 888 judgments handed down by the Supreme Court in 2014, only 7% were on constitutional matters. P.I.L.s which receive the most media attention and help correct the most grievous kinds of injustice in the ‘good governance’ context formed only 1-2% of the Court’s regular hearing matters from 2005-2011 (Robinson, 2013, p. 605). According to research by Hemrajani & Agarwal (2019, pp. 134-136), between Jan. 26-Dec. 5, 2016, the mean hearing time for a writ petition (civil), which would likely bring up constitutional and governance-related matters (see Arjun Gopal above), was 12.6 minutes; whereas, the same figure for civil and criminal appeals was 18.5 and 17.7, respectively.

Furthermore, during the aforementioned period, the average number of hearings (in judge minutes) required to dispose of civil and criminal writ petitions was 56 and 55, respectively. In stark contrast, the same figure for criminal and civil appeals, was 84 and 125 respectively; while the figure for admitted special leave petitions under the Supreme Court’s discretionary jurisdiction was a striking 67 for both civil and criminal S.L.P.s. That the Court’s workload being bereft of writs is not a recent trend is confirmed by Robinson (2013, p. 587-589), who notes that admission matters relating to writ petitions has dropped from 4-7% in the 1990’s to 1-2% from 2006-2011, with the percentage of writ petitions as a share of the Court’s whole workload declining from 41% in 1985 to 15% by 1990 and then falling to 1-2% in the 2000’s.


The impact of this kind of skewered workload is tangible and grave. Among other things, it means that the Court does not constitute large benches as the default way of dealing with cases to the point where a bench of more than three or five is extremely rare these days. The two-judge bench being the standard way of dealing with all kinds of matters means that there is little room for a multifaceted analysis of issues. This also means that the power of a judge to dissent―which could prove valuable in guiding future decisions―is severely curtailed, the result is compromise solutions that prevent a truly meaningful exposition of the law. All of this hardly bodes well for the Court’s role as a guardian of the Constitution and Fundamental Rights or its role as a promoter of good governance.

The Court’s decisions in these areas is extremely significant, as pointed out above, and the fact that these matters are not given the attention commensurate with their importance, due to the Court’s workload in matters of ordinary law, is deeply problematic. A potent example of this is the recent repeal of Art. 370 via a Presidential Order, which has been referred to a five-judge Constitution Bench, as reported by Bar & Bench. The magnitude of the problem here warrants a far larger bench which will be able to patiently and comprehensively examine the issue to reach a truly authoritative conclusion. This point gains further traction when we look at one of the most sophisticated common law courts in the world: the U.K. Supreme Court, and its treatment of an issue of comparable magnitude, i.e. whether Parliamentary approval was needed to trigger Art. 50 of the T.E.U. The U.K. Supreme sat en banc (11 judges) in R (Miller) v Secretary of State for Exiting the European Union [2015] UKSC 5 to decide whether the U.K. could leave the E.U. by mere executive action or not. But the Indian Supreme Court is going to decide whether a provision of India’s Constitution could be disapplied by mere executive action (or not) by a bench of merely five.


The other major impact of this preponderance of non-public law caseload is the time allocated by the Court to decide constitutional and administrative law cases. As discussed above, a much greater amount of time is spent dealing with admitted S.L.P.s over writ petitions. This means that the Supreme Court allocates a lot more time to dispose of what should form part of its discretionary jurisdiction rather than allocating more time for what forms part of its mandatory and good governance jurisdiction, making it far less of a constitutional court than it ought to be. To quote Robinson (2013, p. 603), this is also means that “Larger benches – i.e. three, five, and seven judge bench matters – are all backlogged by the most years. Given the flood of cases it faces, the Court does not seem to have the time or spare judges to prioritize these pressing matters, which make up a core part of its constitutional mandate.(sic)”

Thus, due to its heavy workload the Court ends up in a catch-22 situation vis-a-vis its role as a protector of the Constitution and good governance: It is unable to constitute larger benches where it would be apposite to do so, and when it does constitute a larger bench because it cannot avoid doing so, it ends up seriously delaying justice therein because of its workload. The end result is a Court that is crushed by its own weight, with a decline in the quality and efficiency of justice delivery and a greater emphasis of the Court’s energies on ordinary matters instead of constitutional and governance-related matters.


The appropriate solution to this problem is the institution of a national court(s) of appeal that will have appellate jurisdiction over ordinary matters and leave constitutional matters to be primarily dealt with by the Supreme Court. Indeed, there are other solutions, the first among them is the most obvious: a curtailment of the number of S.L.P.s admitted by the Supreme Court and/or a rollback of the Court’s activist role in the country’s governance. But as was argued in the last essay in this series, reducing the admission of S.L.P.s is not possible since Indians depend on the Supreme Court as the last recourse against a wholesale and regular miscarriage of justice being carried out by the lower courts. As far as rolling back the Court’s good governance role is concerned, a Pandora’s box has been opened. People have now come to rely on the Supreme Court as deliverer of good policy and as a pillar of competence in a country where other institutions are perhaps rightly seen as incompetent, inefficient and corrupt. To try and rollback the Court’s valuable work in such a situation would be extremely counterproductive to the public interest, and, not to mention, would take years to perform.

The only other solution which merits some discussion is proposed by the Law Commission in its 95th (dated March 1, 1984), 125th (dated May 11,1988) and 229th Reports (dated August 5, 2009). The Law Commission suggests, at paras 6.3, 4.17 and 4.2 of the 95th, 125th and 229th Reports, respectively, that the Supreme Court should be split into a Constitution Bench or Division located in Delhi and Cassation Benches or Legal Divisions located in four zones of the country. The rationale for this suggestion is two-fold. Firstly, while the Cassation Benches can deal with all other questions, the Constitution Bench can sit en banc to deal with constitutional questions, thereby leading to a division of labour to bring about greater overall focus and efficiency (para 4.17, 125th Report; para 2.3, 229th Report). Secondly, due to the special requirements of constitutional adjudication, such as specialisation, consistency, self-containment and coherence, and the need for more time, it is better to have a dedicated constitutional court or bench that is free from any responsibility of deciding ordinary cases (para 3.4, 95th Report).

While this suggestion is a powerful one, it does not preclude the arguments in favour of a separate appellate court below the Supreme Court. For one, a mere splitting of the Court would not go to the root of the problem. It will only split the Court’s burden between two divisions instead of actually unencumbering the Court of the overwhelming load of ordinary appeals, thereby preventing a true implementation of the requirements of constitutional adjudication. After all, the Constitution Bench, even if distanced from ordinary appeals will still have the same Chief Justice as the Cassation Benches, given the Law Commission rejects a French-style Conseil Constitutionnel (para 2.6, 95th Report). Two, in a common law system, where legal ideas are based less on categories and more on treating like cases alike, the division of the Supreme Court would prevent cross-fertilisation of ideas. Three, the existence of the four divisions would mean that the Supreme Court would still remain an ordinary appeals court instead of being a final appeals court, as it should be under Art. 136 (see Part I).

Therefore, it would appear that instituting a national appeals court across four zones of the country would be the most appropriate solution to the problem. This would drastically reduce the number of ordinary appeals the Supreme Court would have to deal with, so that it can concentrate on developing its constitutional jurisprudence and on policing egregious lapses in policy-making. At the same time, it would ensure the Court is able to have larger benches more routinely for comprehensively and swiftly analysing issues forming part of this core jurisdiction of the Court. Finally, the institution of appellate courts across the country would keep the Court’s role as a final court of appeal intact, ensuring it can resolve issues that truly turn on the finest points of the law.


 

References:

Hemrajani, R. & Agarwal, H., (2019) “A Temporal Analysis of the Supreme Court of India’s Workload”, 3(2) Ind. L. Rev. 125. (link: https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=3417761)

Neuborne, B., (2003) “The Supreme Court of India”, 3(1) Int’l J. Con. Law 476. (link: https://academic.oup.com/icon/article/1/3/476/732988)

Rakshit, N. B., (1999) “Right to Constitutional Remedy: Significance of Article 32”, 34(34/35) Econ. & Pol. Weekly 2379. (link: https://www.jstor.org/stable/4408327?read-now=1&seq=1#page_scan_tab_contents)

Robinson, N., (2013) “A Quantitative Analysis of the Indian Supreme Court’s Workload”, 10(3) Jo. of Emp. Leg. Stud. 570. (link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2189181)

Robinson, N., (2009) “Expanding Judiciaries: India and the Rise of the Good Governance Court”, 8(1) Wash. U. Global Stud. L. Rev. 1 (link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1126364)


Harsh is a graduate of the University of Bristol. He is also the Chief Editor of The Pangean, a policy-based media outlet. He is also interested in commercial laws, and regularly writes on related areas like Foreign Policy and Economics.


Image Credits – Bar and Bench