Vidhi Centre for Legal Policy and Daksha Legal both do excellent research work on law and related policy. The legal system has to provide credible incentives and deterrents. Dispute resolution must be efficient. There are layers to dispute resolution: Lower Courts, High Courts and the Supreme Court. Out of 37 million cases pending in India, the Supreme Court’s contribution (as of 1 March 2021) is only 66,727. In June 2012, that figure was 61,716. If one goes back a decade, that number will drop to around 40,000. In other words, because the Supreme Court’s disposal of cases is smaller than new cases instituted, the backlog increases. In 2015, Vidhi brought out a consultation paper on the Supreme Court’s backlog and regional disparities in access to the Supreme Court. Let me quote bits from this.
“However, a prima facie analysis of the Supreme Court’s recent history would show that it has definitely strayed from its original character and has transformed into a court of regular appeals. Recent studies point out that disputes pertaining to taxation, corporate law, land acquisition, service matters and criminal law matters constitute the bulk of the Supreme Court’s docket…While the number of constitutional cases disposed have declined steadily, the data from the Supreme Court suggests that both the number of ordinary appeals disposed and pending cases have grown exponentially… Constitutionally, the Supreme Court must be accessible and open to all litigants who wish to invoke any of its jurisdiction(s) under the pertinent provisions of the Constitution of India. In practice however, a major contention has repeatedly surfaced against the ‘centralised’ structure of justice dispensation, by geographically locating, and limiting the Supreme Court to the national capital.” In 2016, an analysis of 49,000 cases followed, demonstrating the overwhelming presence of special leave petitions (SLPs). Therefore, reducing backlog in the Supreme Court is not a simple matter of increasing the number of judges and filling vacancies swiftly.
Recently (10th March 2021), the Minister of Law and Justice answered a starred question in Lok Sabha about restructuring of the Supreme Court. “The Eleventh Law Commission in its 125th Report titled ‘The Supreme Court – A Fresh Look’, submitted in 1988, reiterated the recommendations made by Tenth Law Commission in its 95th Report for splitting the Supreme Court into two, namely (i) Constitutional Court at Delhi and (ii) Court of appeal or Federal Court sitting in North, South, East, West and Central India.” That 95th Report recommended there should be two divisions in the Supreme Court, a Constitutional Division and a Legal Division. I hope more people read that 95th report. It was beautifully argued and written, not just the content, but also the language. As the minister mentioned, in 1988, there was the 125th Report.
I prefer the language of the 95th Report, but that of the 125th Report was pretty good too. “If this recommendation had been implemented in letter and spirit, probably the situation could have been very much retrieved … 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. … 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 1988 Supreme Court 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.”
Subsequently, as again mentioned by the minister in his reply, there was the 229th Report of the Law Commission in 2009. To quote, “The agonies of a litigant coming to New Delhi from distant places like Chennai, Thiruvananthapuram, Puducherry in the South, Gujarat, Maharashtra, Goa in the West, Assam or other States in the East to attend a case in the Supreme Court can be imagined; huge amount is spent on travel; bringing one’s own lawyer who has handled the matter in the High Court adds to the cost; adjournment becomes prohibitive; costs get multiplied. … It is, therefore, clear that there are reasons other than the inadequacy of judge strength that are responsible for accumulation of undecided cases in the Supreme Court… In this context, it may be noted that in its 2nd (2004), 6th (2005) and 15th (2006) Reports, the Parliamentary Standing Committee on Law and Justice has repeatedly suggested that in order to promote speedy justice available to the common man, Benches of the Supreme Court have to be established in the Southern, Western and Northeastern parts of the country…. Despite these Reports, the Hon’ble Supreme Court has so far not agreed with the suggestion regarding setting up of its Benches…. The concept of having a Constitution Bench along with a Cassation Bench (these do not re-examine facts, but interpret relevant law) is nothing new.”
I think anyone who reads these various reports will be convinced. But Lok Sabha was told, “The matter was referred to the Chief Justice of India, who has informed that after consideration of the matter, the Full Court in its meeting held on 18th February, 2010, found no justification for setting up of Benches of the Supreme Court outside Delhi.”
Bibek Debroy
Chairman, Economic Advisory Council to the PM. Views are personal
(Tweets @bibekdebroy)