New Delhi: In September 2021, just a month before his retirement, Justice N Kirubakaran of the Madras High Court suggested—echoing other judges and law commissions—that the Constitution be amended to create more Supreme Court benches.
"No impression should be given that the Honourable Supreme Court is meant only for the people living in and around New Delhi or the States surrounding New Delhi,” said Justice Kirubakaran in the course of a judgement.
Two months before Justice Kirubakaran’s observation, five bar councils in south India submitted a representation to the Chief Justice of India, N V Ramana, and Vice President M Venkaiah Naidu requesting a Supreme Court bench in south India. And in March 2021, a parliamentary panel said the government should consider setting up more Supreme Court benches.
These are not new suggestions. Four law commissions have recommended regional benches of the Supreme Court, but the Supreme Court and Parliament have not shown any inclination to diversify India’s highest court.
Yet, this is clearly an issue that continues to be on the minds of many.
It is relevant to discuss the issue now because a glimpse of how the diversification of the Supreme Court might be implemented was provided by the Covid-19 pandemic.
Like so many other institutions—schools, colleges, businesses, companies—the Indian judiciary too underwent unprecedented transformations during the Covid-19 pandemic.
From the district and sessions courts to the Supreme Court, all attempted, and some succeeded, in adopting video-conferencing to hold court—unthinkable to a lawyer in pre-Covid times.
Though virtual or remote ways of holding court proceedings ran smoothly for barely a handful of advocates—because of India’s digital divide—the video-conferencing option provided by courts helped lawyers in remote areas conduct and participate in proceedings from their homes.
This was particularly true of the Supreme Court, which lawyers who did not live in India’s capital could attend without having to travel to New Delhi for hearings.
This possibility of a virtual court has raised significant opportunities.
Why should the apex court of a nation that is the seventh largest by area and second largest by population be available at a single physical location alone? Why should justice be exclusive for those privileged to live in or in close proximity to the capital? Why must an individual from Agartala or Coimbatore or Gandhinagar have to travel to Delhi to access the Supreme Court?
Many Supreme Courts
In colonial times, three Supreme Courts sat in Bombay, Calcutta, and Madras. The Indian High Courts Act 1861 abolished the Supreme Courts and transformed them into high courts for various provinces. The Federal Court of India was established by the Government of India Act, 1935, as an appeals court against high-court judgments.
After Independence in 1947, India enacted the Constitution in 1949. The Supreme Court as we know it today was established under Article 124 of the Constitution on 28 January 1950, two days after India became a sovereign, democratic republic. It came into its existence in Delhi via Article 130.
The first Supreme Court had eight judges including the Chief Justice of India. As workload increased year after year the number of judges too increased from the original eight to 11 in 1960, from 14 to 17 in 1977, to 26 in 1986 and 31 in 2008, and finally to 34 in 2019.
In the early decades, judges sat together to hear cases. The Supreme Court operated primarily as a constitutional court and issued approximately 70 to 80 judgments a year by Constitution benches of five or more judges.
Today’s Supreme Court delivers around 10-12 judgments a year through Constitution benches of five or more judges. It mainly functions now as a court of appeals. Of 699 judgments delivered in 2020, only 11 were by a Constitution bench.
It handles cases between the Centre and the states, between two or more states; rules on civil and criminal appeals; advises the President on legal and factual issues. Any citizen can reach the Supreme Court directly if they believe their fundamental rights have been violated.
Judges typically convene in two- or three-judge benches to hear the variety of issues including relatively less weighty concerns such as film prohibitions/ lifting of restrictions or allegations that a commissioner of police abused his authority.
Though infrequent, the Supreme Court has even heard frivolous public interest litigations, such as demands that verses be removed from the Quran or that secularism should be removed from the Constitution of India’s Preamble.
A Call For Regional Benches
Numerous cases that originate in lower courts or high courts eventually reach the Supreme Court for final resolution. But located as it is in New Delhi, it is considerably difficult for citizens from northeast India or the southern states to travel to the capital for just a day to attend a hearing that may end in an adjournment, as is often the case.
Not every lawyer, whether from Kerala or Tamil Nadu or Mizoram, has the means to go to Delhi for every hearing to appeal to the Supreme Court or hire costly lawyers in the apex court.
The Supreme Court in 2016 explained the scope of Article 39A as: “The state shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall… ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.” Article 21 of the Constitution too envisages the right to access to justice as a fundamental right.
A quantitative analysis in 2019 showed that three of the high courts closest to the Supreme Court by distance—Delhi, Punjab & Haryana and Allahabad—had the highest rate of appeal; along with Bombay and Madras, these make the top five courts whose decisions are appealed in the Supreme Court.
Appeals from high courts of Punjab & Haryana and Delhi made up a substantial percentage of the total appeals that reached Supreme Court. Though Punjab and Haryana, Delhi’s neighbours, have just 4.3% of the country’s total population (2011 Census), appeals from these courts accounted for 34.1% of all Supreme Court appeals.
There were almost no appeals from high courts of the northeast’s seven states including Assam, home to 3.8% of India’s population, an indication that physical distance from the Supreme Court is a deterrent to appeals made before it.
Idea Of A Court Of Appeal Thirty-Five Years Old
Under Article 32, any resident in India can petition the Supreme Court. Anyone in India has the right to approach it. Article 136 allows SC to hear appeals from high courts and tribunals, giving it the power to grant special leave to appeal against any judgment or order passed by any high court or tribunal, intended to be utilized in instances involving constitutional matters.
Currently, the Supreme Court is solely involved in the determination of appeals under Article 136.
The Tenth Law Commission suggested in March 1984 that, “the Supreme Court of India should be divided into two divisions, namely (a) Constitutional Division and (b) Legal Division,” and that “only cases of Constitutional law may be referred to the proposed Constitutional Division”.
Reaffirming this, the Eleventh Law Commission in 1988 argued that dividing the Supreme Court into sections would make justice more broadly available, thereby remarkably reducing costs litigants face.
The Supreme Court, in Bihar Legal Support Society vs Chief Justice of India (1986 SCC (4) 767), stated that “[it was] desirable to set up a National Court of Appeal which would be in a position to entertain appeals by special leave from the decisions of the high courts and the tribunals in the country in civil, criminal, revenue and labour cases and so far as the present apex court is concerned, it should concern itself only with entertaining cases involving questions of constitutional law and public law”.
In 2010, a full-court, led by then Chief Justice K G Balakrishnan, convened to address the proposal for regional benches. It said that separating the Supreme Court would jeopardize the nation’s and the Supreme Court’s unitary nature and would lose “the faith of the people”.
The Supreme Court in 2016 accepted a petition by a lawyer proposing the establishment of the National Court of Appeal with regional benches to serve as the last court of appeal in criminal and civil matters. The government via the attorney general stated that the formation of a National Court of Appeal was a “self-defeating exercise” and would only add lawyers to the existing system.
In 2019, Vice President Venkaiah Naidu supported the formation of regional benches. Attorney General K K Venugopal proposed establishing four benches across the country for a court of appeal, each with 15 judges.
The Chief Justice of India has the authority to form benches. Virtual courtrooms have helped advocates and litigants in rural areas access courts easily, which was previously not possible.
Technology and the Covid-19 pandemic have forced change in work patterns, which is an opportunity for the Supreme Court to make itself more accessible. Regional benches and a National Court of Appeal could, similarly, be virtually established, extending the reach of the Supreme Court into India’s far corners.
(Kumar Kartikeya and Avinash Kumar Yadav are undergraduate students of law in New Delhi.)