establishING PERMANENT REGIONAL benches OF SUPREME
COURT: WHETHER FEASIBLE?
The deliberations were made before, brain storming
sessions were held, however, there was no headway. The matter remained a
backburner. Now, a private members bill is moved by a member of the Rajya Sabha
seeking establishment of permanent benches of Supreme Court. The Constitution (Amendment)
Bill 2020 seeks to achieve establishment of Four (4) Permanent Regional benches
in a bid to de-centralise the Supreme Court. Recently Bar Council officials of
Five (5) Southern states i.e Karnataka, Kerala, Tamil Nadu, Andhra Pradesh and
Telengana has also met the hon’ble Chief Justice in this regard. It is felt by
some members of parliament that access to justice cannot be the preserve of
only rich, but that right should be available to every person of this nation.
The idea has also elicited resonance from various quarter.
The perspective is to be deliberated here.
The standing committee of parliament had recommended
setting up of Regional Benches of supreme court in 2004,2005 and 2006. The Law Commission
in its 229 report sated 05.08.2009 to the Ministry of Law & Justice, Government
of India had also emphasized the need of establishing of “cassation benches” of
supreme court at New Delhi, Mumbai, Chennai and Kolkata. The Law Commission
Recommendation shall be dealt with little later. The feature of the proposed
private members Bill to the aforesaid effect may be perused.
PRIVATE
MEMBER BILL
The feature of proposed Bill are as under:
(i)
It
seeks to amend Article 130 of Constitution of India so as to constitute Five
(5) benches of Supreme Court, one at New Delhi as constitution bench and Four
(4) other permanent regional benches i.e Northern, Southern, Eastern &
Western at New Delhi, Chennai, Kolkata & Mumbai. Respectively.
(ii)
The constitution bench at New Delhi shall hear
only matters of constitutional importance and Chief Justice of India shall have
the exclusive power to determine as regards classification of matters of
constitutional importance.
(iii)
The
permanent regional bench3es shall have the power of Supreme Court, relating to
matters other than constitutional matters.
(iv)
Northern
Bench shall cover the territories- U.P, Uttarakhand, Rajsthan, Punjab, Haryana,
Himachal Pradesh, Union Territories of Jammu & Kashmir, Ladakh, Delhi &
Chandigarh.
(v)
Southern
Bench shall cover the territories- Tamil Nadu, Kerala, Karnataka, Andhra
Pradesh, Telengana & Union Territories of Pudducherry and Lakshdweep.
(vi)
Eastern
Bench shall cover the territories- W.B, Bihar, Jharkhand, Odisha, Assam,
Sikkim, Arunachal Pradesh, Nagaland, Meghalaya, Manipur, Tripura, Mizoram &
Union Territory of Andaman & Nicobar Island.
(vii)
Western
Bench shall cover the territories- Maharashtra, Gujarat, Madhya Pradesh, Chhatisgarh,
Goa, Union Territory of Dadra & Nagar Haveli, Daman & Dieu.
(viii)
The
chief justice of India could transfer the maters from the permanent Regional
benches to the Constitution bench or transfer the matters from the Regional
benches to other regional benches.
(ix)
If
the substantial question of law on the same or similar subject matter is being
heard by various regional benches, the Chief Justice of India could transfer it
to any one regional benches to hear all such the matters.
(x)
The
Chief Justice of India shall nominate the judges to sit in the constitution
benches or regional benches. The number of such judges in each such location
shall not be less than Six(6) in each of the permanent regional benches.
(xi)
The
appointment of judges shall be formulated in such a manner so that judges whose
parent high court, practicing in high
court, or residence prior to their appointment as judge is within the
territorial jurisdiction of such permanent regional bench.
(xii)
The
Chief justice of India may appoint judges as per their seniority or if
otherwise deemed expedient in the interest of administration of justice.
LAW
COMMISSION RECOMMENDATION
The Eleventh (11th) Law
Commission of India in its 125th
Report titled “The Supreme Court – A Fresh Look”, has submitted in 1988,
reiterated the recommendations made by Tenth (10th) 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. The Law Commission opined that this will reduce the
distance travelled and the cost borne by the litigants. The recommendations of
the Law Commission’s 95th
and 125th Report are available on Law Commission of
India. The Eighteenth (18th )
Law Commission in its 229th
Report had also suggested that a
Constitutional Bench be set up at Delhi and four Cassation Benches be set up in
the Northern region at Delhi, Southern region at Chennai/Hyderabad, Eastern
region at Kolkata and Western region at Mumbai. 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.
In Writ Petition WP(C) No. 36/2016 on establishment of
National Court of Appeal, the Supreme Court vide its judgment dated 13.07.2016
deemed it proper to refer the aforementioned issue to Constitutional Bench for
authoritative pronouncement. The matter is sub-judice before the Supreme Court.
The world’s first Constitutional Court
was constituted in Austria in 1920 and in Germany after World War –II. The
times have since changed and now about 55 countries have constitutional courts.
After independence, what is of utmost significance is that the Supreme Court of
India had mostly dealt with core constitutional issues and Five (5) or more
judges had to deal with such issues as per Article 145 (3) of Constitution of India.
However, the Supreme Court nowadays sits as a bench of Two (2) or Three (3)
judges and given the backlog and workload of cases of general character, the
constitution bench does not sit as frequently as it is desirable. The Supreme
Court of India has heavy workload in as much as wide jurisdiction as it hears
matters between (i) Centre &
states (ii) Between two or more
states (iii) matters of civil or
criminal appeals (iv) Advise to
President on question of law and fact (v)
Question of fundamental rights etc and thus, the backlogs are huge.
In 1984, the 10th Law Commission of India in its 95th
report headed by justice KK Mathew had recommended that Supreme Court of India
should consist of two divisions, namely (a)
Constitutional Division & (b)
Legal Division and that only matter of constitutional law may be assigned to
proposed constitutional division. The 11th Law Commission in its 125th
Report under the chairmanship of Justice D.A Desai in 1988 reiterated the
earlier report Again the 18th law Commission under Justice AR
Lakshmanan in its 229th Report has suggested creation of Four
cassation benches and bench in Delhi for constitutional matters.
SUPREME COURT
HAS EARLIER REJECTED LAW COMMISSION RECOMMENDATION
The full bench of hon’ble Supreme
Court headed by shri K.G Balakrishnan, the then Chief Justice of India of hon’ble
Supreme Court in the year 2010 has already rejected the suggestion of setting
up of Constitution bench in Delhi and Four (4) cassation benches in four regions
on the premise that it may be contrary to country’s unitary character.
It is of paramount importance
that to establish such benches as per Article 130 of Constitution of India the
approval of supreme court is mandatory.
It is felt that if Article 130 of
Constitution is liberally interpreted, there shall not be need of constitution
amendment for setting up of Cassation benches. In any case suitable legislation
may be passed or even constitution amendment bill could be passed.
Article 130 of the Constitution
of India stipulates that the seat of Supreme Court shall be in Delhi or in such
other place or places as the Hon’ble Chief Justice of India may, with the
approval of the Hon’ble President, from time to time, appoint. Therefore, the
mandate from hon’ble Supreme Court is a must if the idea is to be furthered.
What is to be understood is that
after independence of various issues of constitutional importance were to be
heard as India was in the stage of nation building and therefore various constitutional
issues were inevitably raised and the adjudication on that was necessary.
Subsequently, when trade, commerce and intercourse as per the new dispensation
and arrangement took root, the litigation being the after effect, the courts
including hon’ble Supreme Court were flooded with such cases. The bulk of time
of hon’ble Supreme Court is therefore now consumed in such routine cases and therefore,
there has been widespread demand of appellate court as appellate ladder seeking
to challenge the orders passed by high courts and in that scheme it is proposed
that Supreme Court of India may only deal with issues related to constitution.
The exponent of multiple benches
of Supreme Court puts their emphasis on Article
39 A that states: “ The state shall secure that the operation of the legal
system promote justice, on a basis of equal opportunity and shall ensure that
opportunity for securing justice are not denied to any citizen by reason of
economic or other disabilities”. Travelling to New Delhi and expenses in
seeking legal recourse is huge and beyond the means of many litigants. It is
also a matter of record that the Standing Committee of Parliament in the year
2004, 2005 and 2006 had recommended setting up of permanent regional benches.
In 2008 the committee suggested that at least one bench may be constituted at
Chennai. The Supreme Court however did not agree to the proposal, as narrated above.
REMARK
The clamour of the demand of establishing
Permanent Regional Benches is gaining impetus
and pursuance thereto, even a Private Member bill is moved in Council of States
(Rajya Sabha). The underlying emphasis is that when justice to the doorstep of
citizen is an avowed objective, then, what purpose could be achieved by not
establishing Permanent Regional Benches in respective regions of India,
thereby, mitigating the hardships of litigants from the nook and corner of
India and who may not be able to pursue their cases in Supreme Court for
monetary and logistic issues. The hon’ble Supreme Court has huge backlog of
cases in the face of variety of cases from every corner of India is filed in
the registry of the Supreme Court. The consensus is required to be built on the
issue and as per the constitutional scheme of things the mandate of hon’ble
Supreme Court shall be the sine qua non.
Whether the demand of establishing Permanent Regional Benches are actualized, the
future timeline shall only unravel.
Anil
K Khaware
Societylawandjustice.com
Founder & Sr Associate
No comments:
Post a Comment