Revamp of Supreme Court to trim backlog and costs

By Vivek Vashi and Krishnendu Sayta, Bharucha & Partners

India’s Law Commission in its 229th Report noted the dire need to reduce the alarming backlog of cases in the Supreme Court as well as the spiralling costs of litigation for those living far from the court. Previous Law Commission reports highlighted the same concerns, but did not recommend splitting the court into separate benches that would hear only constitutional matters or regular appeals.

Vivek Vashi
Vivek Vashi

The Law Commission compared the number of cases filed in the Supreme Court in 1950 and 2008. In 1950, when the court had only seven judges, 1,215 cases were instituted, 525 of which were disposed of in the same year. From January to April 2008, when the court had 30 judges, 28,007 cases were instituted and 28,559 cases were disposed of. Although more cases were disposed of than instituted in the 2008 period, 46,374 cases remained pending, due to accumulation of cases over the years.

After considering the practice of 55 countries, the Law Commission suggested the constitution of cassation benches and constitution benches of the Supreme Court. The commission recommended that four cassation benches be set up, to deal with appeals from high courts in the north, south, east and west zones of India. The backlog of cases would be transferred to the respective cassation benches, and the Supreme Court would only hear constitutional matters and other cases of national importance on a daily basis.

The commission suggested that a liberal interpretation of article 130 of India’s constitution would permit the setting up of the cassation benches and the only requirement would be presidential assent.

Recently, a Chennai-based lawyer filed a writ petition in the Supreme Court, seeking the constitution of a National Court of Appeals (NCA) to hear appeals against decisions by high courts of the respective zones. The chief justice of India noted the importance of the matter and referred it to the constitutional bench of the Supreme Court.

On 16 March, the constitutional bench started hearing the matter to decide whether the Supreme Court can itself set up the NCA or whether it should prescribe a roadmap for the NCA and leave the modalities of setting it up to the legislature.

The constitutional bench indicated that if the NCA was constituted, the Supreme Court could restrict itself to deciding matters where high courts had passed conflicting judgments, constitutional matters and death penalty matters. The chief justice stated that as “access to justice” is a fundamental right, it is important that justice not be merely an illusion for people in far-flung areas, who do not have easy access to courts. To achieve this he suggested that justice ought to be nearer to home for such litigants.

On the other hand, Mukul Rohtagi, the attorney general of India, expressed concerns that the NCA may dilute the efficacy of article 136 of the constitution, which is the basis on which litigants approach the Supreme Court. He said the NCA may increase the number of cases filed before the Supreme Court and add to the burden on the court. He also cited examples of countries where such a move was tried but was not perceived as being effective.

The attorney general told the Supreme Court that setting up an NCA was neither “plausible nor desirable”, and would be contrary to the government’s previous plan to reform the system to ensure the speedy disposal of pending cases.

Krishnendu Sayta
Krishnendu Sayta

If the suggestions made by either the constitutional bench or the Law Commission are accepted, it may ensure a speedier disposal of the backlog of cases pending before the highest court. Another impact would be a substantial reduction of costs. If benches are set up in the four zones, it is likely that more people will approach the Supreme Court through these benches, due to their proximity. This could substantially ease the burden on the Supreme Court and result in a higher rate of disposal. As several matters would be transferred, the court would be able to devote more time to hearing constitutional matters or matters of national importance.

This proposed change, along with the setting up of commercial benches in high courts and other specialized tribunals such as the Real Estate Regulatory Authority, National Company Law Tribunal and National Green Tribunal, indicates that the landscape of litigation in India is edging towards a speedier disposal of cases. Importantly, a lot of litigation is being moved to specialized tribunals or specialized benches in the high court.

Recent changes in the law including amendments to the Negotiable Instruments Act and the Arbitration and Conciliation Act and the setting up of the Real Estate Regulatory Authority are positive moves and will reduce the potential delays in the overall time taken to conclude litigation. The key will be to ensure that along with a quicker disposal of potential cases the backlog is also swiftly dealt with, going forward.

Vivek Vashi is the mainstay of the litigation team at Bharucha & Partners, where Krishnendu Sayta is an associate.


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