Wednesday, August 11, 2021

ESTABLISHING PERMANENT REGIONAL BENCHES OF SUPREME COURT: WHETHER FEASIBLE?

 


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

 

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