Supreme Court of India
V. VASANTHAKUMARversusH.C. BHATIA AND ORS.
- Citation
- 2016 INSC 521
- Decided
- 13 July 2016
- Disposal
- Matter referred to larger bench
- Bench
- T S THAKUR
Holding
The Court held that the issues raised require consideration by a Constitution Bench and therefore referred the petition to a larger bench for an authoritative pronouncement.
Summary
The writ petition filed by V. Vasanthakumar sought a mandamus directing the Supreme Court to consider proposals for establishing National/Regional Courts of Appeal to alleviate the massive backlog and improve access to justice. The petitioner argued that the Supreme Court has increasingly functioned as a regular appellate court, contrary to its constitutional role under Article 136, and that structural reforms such as a constitutional division or regional appellate benches are necessary. The Court examined extensive jurisprudence, Law Commission reports, and comparative perspectives, reaffirming that the Supreme Court should intervene only in cases involving substantial constitutional questions, gross miscarriage of justice, or matters of national importance. It noted that more than three‑fourths of petitions are dismissed after hearing, contributing to the growing pendency, and that merely increasing the number of judges would not resolve the systemic issue. Concluding that the matter raises fundamental questions of constitutional design and the basic structure doctrine, the Court referred the petition to a larger Constitution Bench for an authoritative pronouncement.
Issues considered
- Whether the right to access justice is denied due to the undue delay in disposal of cases by the Supreme Court.
- Whether increasing the number of Supreme Court judges is a feasible solution to the delay.
- Whether dividing the Supreme Court into a constitutional wing and an appellate wing would address the backlog.
- Whether the Supreme Court’s location in Delhi creates a deterrent to access to justice for litigants from distant states.
- Whether the Supreme Court should sit in benches across different parts of India to improve access.
- Whether the Supreme Court has been exercising jurisdiction as an ordinary court of appeal in routine cases.
- Whether the huge pendency is caused by the Court not restricting its jurisdiction to constitutional and nationally important matters.
- Whether there is a need for Courts of Appeal with exclusive jurisdiction over routine cases and Article 32 petitions.
- Whether establishing four regional Courts of Appeal would satisfy the requirement of access to justice.
- Whether such a structural change would violate the basic structure doctrine of the Constitution.
- Whether the Supreme Court has a duty to recommend divesting itself of about 80% of routine pendency to a new appellate system.
Legislation cited
- Constitution of Indias. Article 130, s. Article 136, s. Article 145(3), s. Article 226, s. Article 32
Subjects
Supreme CourtArticle 136Special Leave PetitionJudicial reformCourt of AppealAccess to justiceConstitutional benchBacklogBasic structure doctrine
Judgment
[2016] 5 S.C.R. 51
V. VASANTHAKUMAR A
v.
H.C. BHATIA AND ORS.
(Writ Petition (C) No. 36 of2016)
JULY 13,2016 B
[T.S. THAKUR, CJI, R. BANUMATHI AND UDAY UMESH
LALIT, JJ.]
Reference to larger bench: Constitution 'of India - Art.136 -
Special leave petition - Need for restrained approach towards grant
of special leave petition - Matter relating to establishment of
c
National/Regional Courts of Appeal to tackle issue of pending cases
and long delay in disposal of cases in Supreme Court - Matter
referred to Co11stitutional Bench for an authoritative pronouncement.
Referring the matter to a larger Bench, the Court
D
HELD: 1. The Supreme Court was never meant to be a
regular court of appeal. It was meant to exercise its powers under
Article 136 of the Constitution only in cases which raised
important questions involving interpretation of the Constitution
or questions of general public importance or questions of
E
constitutionality of State or Central legislations or those raising
important issues touching Centre-State relationship etc. The
jurisdiction may also have been available to the Court where it
found gross miscarriage of justice or an error so outrageous as
no reasonable person would countenance. The power to interfere
was not meant to be exercisable just because prolonged argument F
would eventually reveal some error or irregularity or a possible
alternative view on a subject that did not cause any miscarriage
of justice of a kind that would shock the conscience of the court
on the subject. The fact, however remains that the filing of cases
in the Supreme Court over the past six decades has grown so
sharply that the Judge strength in the Supreme Court is proving G
inadequate to deal with the same. Statistics show that more than
3f4'h of the total number of cases filed are dismissed in limine.
Even so, the dismissal is only after the court has applied its mind
and heard arguments which consume considerable time of the
Judges. Dismissal of an overwhelming number of cases has not H
51
52 SUPREME COURT REPORTS [2016] 5 S.C.R.
A and does not discourage the litigants or the member of the Bar
from filing cases. That is why the number of cases filed is on the
rise every year. [Para 20) [65-B-F)
2. It was contended that the way forward is setting up of
Regional Courts of Appeal, firstly, because the same would take
B justice closer to the doorsteps of the litigants, especially those
living at distant places and secondly, because an intermediary
court would reduce the burden of the Supreme Court without
denying to the litigants an opportunity to agitate his case before
a court higher than the High Court. The only difference in that
situation will be that in place of the Supreme Court the Court of
c Appeal would look into the matter and correct whatever needs
to be corrected in the judgment impugned before it. It was in
that backdrop that following questions have arisen arise for
consideration: With access to justice being a fundamental right,
would the said right stand denied to litigants, due to the unduly
D long delay in the disposal of cases in the S\lpreme Court; Would
the mere increase in the number of judges be an answer to the
problem of undue delay in disposal of cases and to what extent
would such increase be. feasible; Would the division of the
Supreme Court into a Constitutional wing and an appellate wing
be an answer to the problem; Would the fact that the Supreme
E Court oflndia is situate in the far North, in Delhi, rendering travel
from the Southern states and some other states in India, unduly
long and expensive, be a deterrent to real access to justice;
Would the Supreme Court sitting in benches in different parts of
India be an answer to the last mentioned problem; Has the
F Supreme Court of India been exercising jurisdiction as an
ordinary court of appeal on facts and law, in regard to routine
cases of every description; Is the huge pendency of cases in the
Supreme Court, caused by the Court not restricting its
consideration, as in the case of the Apex Courts of other
countries, to Constitutional issues, questions of national
G importance, differences of opinion between different High Courts,
death sentence cases and matters entrusted to the Supreme
Court by express provisions of the Constitution; Is there a need
for having Courts of Appeal, with exclusive jurisdiction to hear
and finally decide the vast proportion of the routine cases, as
H
V. VASANTHAKUMAR v. H. C. BHATIA AND ORS. 53
well as Article 32 petitions now being decided by the Supreme A
Court of India, especially when a considerable proportion of the
four million cases pending before the High Court may require
review by a higher intermediate court, as these judgments of the
High Courts may fail to satisfy the standards of justice and
competence expected from a superior court; If four regional
B
Courts of Appeal are established, in the Northern, Southern,
Eastern and Western regions of the Country, each manned by,
say, fifteen judges, elevated or appointed to each Court by the
Collegium, would this not satisfy the requirement of 'access to
justice' to all litigants from every part of the country; As any such
proposal would need an amendment to the Constitution, would c
the theory of 'basic structure' of the Constitution be violated, if
in fact, such division of exclusive jurisdiction between the
Supreme Court and the Courts of Appeal, enhances the efficacy
of the justice delivery system without affecting the independence
of the judicial wing of the State; In view of cases pending in the
D
Supreme Court of India on average for about 5 years, in the High
Courts again for about 8 years, and anywhere between 5-10 years
in the Trial Courts on the average, would it not be part of the
responsibility and duty of the Supreme Court of India to examine
through a Constitution Bench, the issue of divesting the Supreme
Court of about 80% of the pendency of cases of a routine nature, E
to recommend to Government, its opinion on the proposal for
establishing four Courts of Appeal, so that the Supreme Court
with about 2500 cases a year instead of about 60000, may regain
.its true status as a Constitutional Court?Keeping in view the
importance of the above questions and the need for reforms which
have been long felt, we deem it proper to refer the same to a F
Constitutional Bench for an authoritative pronouncement. [Paras
22, 23) (66-A-G; 67-A-H; 68-A)
Bihar Legal Support Society v. Chief Justice and Others
1987 (1) SCR 295 : 1986 (4) sec 767; Mathai @
Joby v. George & Anr. (2010) 4 SCC 358 : 2010 (3) G
SCR 533 ; N. Suriyakala v. A. Mohandoss (2007) 9
SCC 196: 2007 (2) SCR 419; Bengal Chemical &
Pharmaceutical Works Ltd. v. Employees AIR 1959 SC
633 : 1959 Suppl. SCR 136; Kunhayammed v. State
H
54 SUPREME COURT REPORTS [2016] 5 S.C.R.
A of Kera/a (2000) 6 SCC 359 : 2000 (1) Suppl. SCR
538; State ()f Bombay v. Rusy Mistry AIR 1960 SC 391;
Municipal Board, Pratabgarh v. Mahendra Sinf{h
Chawla (1982) 3 SCC 331; Ram Saran Das and Bros.
v. CTO AIR 1962 SC 1326 : 1962 Suppl. SCR 276;
Pritam Singh v. State AIR 1950 SC 169 : 1950 SCR
B
453 ; Tirupati Balaji Developers (P) Ltd. v. State of Bihar
(2004) 5 SCC 1 : 2004 (1) Suppl. SCR 494; Jamslied
Hormusji Wadia v. Port ()f Mumbai (2004) 3 SCC 214 :
2004 (1) SCR 483; N01pa1 Singh v. Jaipur Development
Authority (2002) 4 SCC 666 : 2002 (3) SCR 365; Ashok
c · Nagar Welfare Assn. v. R.K. Sharma (2002) 1 SCC 749
: 2001 (5) Suppl. SCR 662; Pritam Singh E The State
1950 SCR 453; Penu Balakrishnu Iyer & Ors " Ariya
M f?.amaswami Iyer & Ors. (1964) 7 SCR 49; Union
Carbide Corporation & Ors. i: Union of India & Ors.
(1991) 4 sec 584 : 1991 (I) Suppl. SCR 251 -
D
referred to.
Case Law Reference
1987 (1) SCR 295 referred to Para..f
2010 (3) SCR 533 referred to Para8
E
2007 (2) SCR 419 referred to Para8
1959 Suppl. SCR 136 referred to Para8
2000 (1) Suppl. SCR 538 referred to Para8
AIR 1960 SC 391 referred to Pa;·a8
F
(1982) 3 sec 331 referred to Para8
1962 Suppl. SCR 276 referred to Para8
1950 SCR 453 referred to Pa1·a 8
G 2004 (1) Suppl. SCR494 referred to Para8
2004 (1) SCR 483 referred to Para8
2002 (3) SCR 365 referred to Para 8
2001 (5) Suppl. SCR662 referred to Para8
H
V. VASANTHAKUMAR v. H. C. BHATIA AND ORS. 55
1950 SCR 453 referred to Para 11 A
(1964) 7 SCR 49 referred to Para 11
1991 (1) Suppl. SCR 251 referred to Para 11
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
36of2016. B
Mukul Rohatgi, AG, K. K. Venugopal (A.C.), T. R. Andhyarujina,
Salman Khurshid (A.C.), Sr. Advs., lmtiaz Ahmed (A.C.) (For Mis.
Equity Lex Associates), Ms. Pooja Dhar, Ram Sankar, S. Muthu Krishnan,
Ms. G. Ananda Selvam, Mayilsamy K., Y. Lokesh, Devashish Bharuka,
Ms. Diksha Rai, Ajay Sharma, Ms. Madhvi Dewan, Ms. Nidhi Khanna, C
Ms. Anu Tyagi, Samit Khosla, Ms. Ranjeeta Rohatgi, B. Krishna Prasad,
Ms. Arnita Singh Kalka), Dr. Shiva Sharma, Advs. for the appearing
parties.
V. Vasanthakumar, Petitioner-in-Person.
Applicant-in-person. D
The Judgment of the Com1 was delivered by
T.S. THAKUR, CJI. I. This petition, filed in public interest,
raises questions touchi 11g possible structural reforms at the highest
echelons of the Indian judicial system. Similar questions have been
E
addressed in the past not only by the Law Commission but also by this
Court on the judicial side. We may briefly refer to the same to place the
issues that fall for determination in proper perspective.
2. In its 14th Report dated 26th September, 1958, the Law
Commission of India advocated the need for a restrained approach
towards grant of sp~cial leaves to appeal against judgments and orders F
passed by the High Com1s. The Commission felt that a liberal grant of
leave to appeal had the tendency to adversely affect the prestige of the
High Courts. It said:
"(13) Although the exercise of the jurisdiction under
Article 136 of the Constitution by the Supreme Court in G
criminal matters sometimes serves to prevent injustice,
yet the Court might be more chary of granting special
leave in such matters as the practice of granting special
leave fi'eely has a tendency to affect the prestige of the
High Courts. " H
56 SUPREME COURT REPORTS [2016] 5 S.C.R.
A 3.Then came the 95th report dated 1st March, 1984 in which the
Law Commission proposed the setting up of a Constitutional Division
within the Supreme Court, in the following words:
'"6.4 If the proposed constitutional division is lo be
created, it will have lo be assigned a part of the business
B of the Supreme Court within its jurisdiction as at present
provided. The second issue that falls to be considered
is, what matters should be assigned to that division. In
this connection, there are two principal alternatives to
be considered as per (a) and (b) below:
c (a) This division may be entrusted with the adjudication
of all public law cases within the Supreme Courts
iurisdiction. If this alternative is accepted, itsjurisdiction
would comprise-
(i) every case involving a substantial question of law
D as to the interpretation of the Constitution, or an order
or rule issued under the Constitution;
(ii) every case involving a question of Constitutional
lmv, not falling within (1) above:
(iii) every appeal against the decision of a High Court,
E rendered under Article 226 of the Constitution;
(iv) every appeal against the decision of a tribunal
under article 136 of the Constitution (whether such
tribunal is created by law passed by virtue of article
323-A or Article 323-B of the Constitution or otherwise),
F where a question of administrative law is involved.
{b) In the alternative, only matters of Constitutional lmv
may be assigned to the proposed Constitutional Division.
If this alternative is accepted, its jurisdiction would only
the items (i) and (ii) mentioned in (a) above. The
G ;urisdiction would then cover only the following:
(i) every case involving a substantial question of law
as to the interpretation of the Constitution or an order
or rule issued under the Constitution, and
(ii) every case involving a question of constitutional
H
V. VASANTHAKUMAR v. H. C. BHATIA AND ORS. 57
[T.S. THAKUR, CJ!]
law, not falling within (i) above. A
Our preference is for alternative (b) above. It is easier
lo define precisely and locale such mailers, co1?fined to
constitutional law proper. We appreciate that question
of constitutional and administrative law often dovetail
into each other, particularly in proceedings under B
article 226 of the Constitution (which may reach the
Supreme Court on appeal). But. in our opinion, it would
be desirable to make the jurisdiction of the proposed
division narrow and compact, at least for the present.
Accordingly, we recommend that the proposed c
Constitutional Division of the Supreme Court should
be entrusted with the cases of the nature mentioned in
alternative (b) above. It follows that other matters
coming to the Supreme Court will be assigned to its
Legal Division.
D
6.5. Of course, the creation of two divisions in the
abstract does not end the matter. For practical
implementation of the proposed scheme, it will be
necessary to deal with at least two concrete matters.
namely, (I) when can a constitutional issue be said to
be "involved" and (ii) what will be the machinery for E
allocating cases between two divisions.
As to the first mailer, which relates to the criterion to be
adopted, we should make it clear that a case should be
regarded as "involving a" constitutional issue only when
the decision of that issue is absolutely necessary for F
the disposal of the controversy. The mere fact that a
party has raised a constitutional issue is not enough.
Although, it may not always be possible to determine at
the outset (at the time of allocation of the case), whether
the case "involves" a constitutional issue in the above G
sense, it may still be useful to bear this aspect in mind"
4. Two years later in Bihar Legal Support Society v. Chief
Justice and Others ( 1986) 4 SCC 767, a Constitution Bench of this
Court while disposing ofa Writ Petition in which the petitioner had prayed
H
58 SUPREME COURT REPORTS [2016] 5 S.C.R.
A for adoption of a uniform approach and sensitivity in special leave petitions
filed by the less fortunate of the litigants as was shown in the case of
two big industrialists for whom the Court had held a late night sitting to
consider their prayer for bail, held that special leave petitions filed by
"small men" were entitled to the same consideration as is given to those
filed by "big industrialists". This Court declared that it had always reg:irded
8
the poor and the disadvantaged to be entitled to preferential consideration
over the rich and the affluent, the businessmen and the industrialists.
That is because the weaker section of the Indian humanity had been
deprived ofjustice for several years on account oftheir poverty, ignorance
and illiteracy, and on account of their social and economic backwardness
c and resultant lack of capacity to assert their rights. This Court rejected
the suggestion that it was not giving to the "small men" the same treatment
as it was giving to the ·'big industrialists".
5. Having said that, this Court declared that it was never intended
to be a regular cou11 of appeal against orders made by the High Courts
D and the Sessions Courts or the Magistrates. It was created as an apex
court for the purpose of laying down the law for the entire country and
forthat purpose it was given the extraordinary jurisdiction to grant special
leave to appeal under Article 136 of the Constitution so that it could
interfere whenever it found that the law was not correctly appreciated
or applied by the lower courts or tribunals. The jurisdiction was also held
E to be available for correction of grave miscarriage of justice. More
importantly, this Court held that every case, where the apex court finds
some error, need not be entertained for otherwise, the Court would
become a regular court of appeal and be reduced to a position where it
will not be able to remedy any injustice at all, on account of the tremendous
F backlog of cases which will get accumulated. This Court said:
'"We must realise that in the vast majority of cases the
High Courts must become final even if they are wrong.
The apex court can also be wrong 011 occasions but
since there is no further appeal. what the apex court
G says is final. That is why one American Judge said of
the Supreme Court of the United States: .. We are right
because we are final: we are not final because we are
right". We must, therefore, reconcile ourselves to the
idea that like the apex court which may be wrong on
occasions, the High Courts may also be wrong and it is
H
V. VASANTHAKUMAR v. H. C. BHATIA AND ORS. 59
[T.S. THAKUR, CJI]
not every error of the High Court which the apex court A
can possibly correct. We think it would be 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
B
so far as the present apex court is concerned, it should
concern itself only with entertaining cases, involving
questions of constitutional l(J)V and public law. But until
any such policy decision is endorsed by the government,
the apex court must interfere only in the limited class of
cases where there is a substantial question of law c
involved which needs to be finally laid at rest by the
apex court for the entire country or where there is grave,
blatant and atrocious miscarriage of justice. "
6. The Law Commission of India took another two years after
the above observations to reiterate its recommendation whereunder it D
had proposed the splitting of the Court into two divisions. While doing so
the Law Commission gave an additional reason namely the handicap
which the litigant from more distant parts of the Country like Tamil Nadu
in South, Gujarat in the West and Assam and other States in the East
face in the matter of accessing justice before the Supreme Court. The
Commission observed: E
"...... The result is that those coming from distant places
like Tamil Nadu in the South, Gujarat in the West and
Assam and other States in the East have to spend huge
a111ount on travel to reach the Supreme Court. There is
a practice of bringing ones own lawyer who handled F
the 111atter in the High Court to the Supre111e Court. That
adds to the cost. And an adjournment becomes
prohibitive. Adjournment is a recurrent phenomenon in
the Court. Costs get multiplied. Now if the Supreme
Court split into Constitutional Court and Court of G
Appeal or a Federal Court of Appeal, no serious
exception could be taken to the Federal Court ofAppeal
sitting in Benches in places North, South, East, West
and Central India. That would not only considerably
H
60 SUPREME COURT REPORTS [2016] 5 S.C.R.
A reduce costs but also the litigant will have the advantage
of his case being argued by the same advocate who has
helped him in the High Court and who may not required
to travel to long distances. Whenever questions of
constitutionality occw~ as pointed out in that report.
the Supreme Court can sit in en bane at Delhi and deal
B
with the same. This cost benefit ratio is an additional
but important reason for reiterating support to the
recommendations made in that report. "
7. Then came the 229th report dated 5th August, 2009 submitted
by the Law Commission, whereunder, it once again recommended
c restructuring of the Supreme Court by setting up of a Constitution Bench
at Delhi and Cessation benches in four regions namely; Delhi, Chennai/
Hyderabad, Kolkata and Mumbai. Drawing support from the system
prevalent in other countries like Italy, Egypt, Portugal, Ireland, United
States and Denmark the Commission recommended that:
D "(l) A Constitution Bench be set up at Delhi to deal
with constitutional and other allied issues as aforesaid.
(2) Four Cassation Benches be set up in the Northern
region/zone at Delhi, the Southern region/zone at
Chennai/Hyderabad, the Eastern region/zone at
E K1Jlkata and the Wes/em region/zone al Mumbai to deal
with all appellate work arising out <~f the orders/
iudgments of the High Courts of the part icula;· region.
(3) If it is found that Article 130 <~f the Co11stitutio11
cannot he stretched to make ii possible to implement the
F above reco111111e11dations, Parliament should enact a
suitable legislation/ Constitutional amendment for this
purpose."
8. In Mathai@ Joby v. George & Anr., (20 I0) 4 SCC 358, this
Court was once more confronted with the question whether Special
G Leave Petitions should or shOLild not be ente11ained against every kind
of order. This Court noticed that Special Leave Petitions were being
tiled by the litigants against almost every kind of order resulting in piling
up of huge arrears and converting this Court into an ordinary appel'. •te
court which was never the intention of the framers of the Constitution
H
V. VASANTHAKUMAR v. H. C. BHATIA AND ORS. 61
[T.S. THAKUR, CJI]
when they enacted Article 136 and empowered the Supreme Court to A
intervene by granting special leave to appeal to an aggrieved Iitigant.
Relying upon the decisions of this Court in N. Suriyakala v. A.
Mohandoss (2007) 9 SCC 196, Bengal Chemical & Pharmaceutical
Works Ltd. v. Employees AIR 1959 SC 633, Kunhayammed v. State of
Kera/a (2000) 6 SCC 359, State of Bombay v. Rusy Misfly AIR 1960
B
SC 391, Municipal Board, Pratabgarh v. Mahendra Singh Chawla
(1982) 3 SCC 331, Ram Saran Das and Bros. v. CTO AIR 1962 SC
1326, Pritam Singh v. State AIR 1950 SC 169, Tirupati Balaji
Developers (P) Ltd. v. State of Bihar (2004) 5 SCC I, Jamshed
Hormusji Wadia v. Port of Mumbai (2004) 3 SCC 214, Na1pat Singh
v. Jaipur Development Authority (2002) 4 SCC 666, Ashok Nagar c
Welfare Assn. v. R.K. Sharma (2002) I SCC 749, this Court held that
the exercise of jurisdiction under Atiicle 136 of the Constitution by the
Supreme Court was discretionary and that the provision did not confer a
vested right of appeal to a party in litigation.
9. This Court further held that the extraordinary jurisdiction vested D
by the Constitution implied that the Court ought to exercise extraordinary
care and caution while making use of that power. Having said that this
Court lamented the filing of special leave petitions against all kind of
orders of the High Court or other authorities without realising the true
scope of Article 136 of the Constitution thereby giving rise to an alarming
situation whereby this Court had converted itself into a mere court of E
appeal as though it was obliged to correct every error which it found in
any judgment delivered by any Court or Tribunal exercisingjurisdiction
under any statute.
I 0. On a conspectus of the dimensions of the question this Cot11i
held that exercise of jurisdiction under A1iicle 136 of the Constitution F
should be limited to certain specific category of cases and referred the
question of interpretation of A11icle 136 to a Constitution Bench in the
light of Article 145(3) of the Constitution.
11. The Constitution Bench, however, declined to look into the
question of interpretation ofArticle 136 of the Constitution or to enumerate G
the circumstances in which the extraordinary power vested in this Court
under the said provision could or ought to be exercised. Relying upon the
decisions of this Court in Pritam Singh v. The State 1950 SCR 453 at
page 457 Penu Balakrishna Iyer & Ors v. Ariya M Ramaswami Iyer
H
62 SUPREME COURT REPORTS [2016) 5 S.C.R.
A & Ors. ( 1964) 7 SCR 49 at Page 53 and Union Carbide Co1poration
& Ors. " Union of India & Ors. ( 1991) 4 SCC 584, the Constitution
Bench held that power under Article 136 had to be exercised with
circumspection but considered it unnecessary to Iimit the use thereof
forever by a process of interpretation. The Court was of the view that
the question referred to the Constitution Bench stood answered by the
B
three decisions mentioned above.
12. lt is in the above backdrop that the petitioner who is a practicing
Advocate has filed the present petition in which he has sought a
mandamus directing the respondents to consider his representation and
to take steps for implementation of the suggestion of the Constitution
c Bench of this Court in Bihar Legal Suppor( Society :S case (supra) by
establishing a National/Regional Courts of Appeal.
13. When the writ petition came up for preliminary hearing before
us on 26th February, 2016, while issuing notice, we requested Shri Mukul
Rohatgi, learned Attorney General for India to assist us in the matter. In
D addition, we requested Shri K.K. Venugopal and Shri Salman Khurshid,
learned Senior Counsel to appear and assist the Court as Amicus Curiae.
14. We have, accordingly, heard at some length the petitioner, the
learned Attorney General and the learned Amicus Curiae. We have
also heard at some length Shri Andhyarujina who intervened to make his
E submissions in support of the prayer made in the writ petition. Relying
upon a report prepared by Vidhi Centre for Legal Policy on "the need
for efficient and effective Supreme Court" by reference in particular to
the issues of backlog and regional disparities in access to justice, Mr.
Yenugopal argued that the statistics quoted by Vidhi and the analysis
F thereof based on round table discussions with several eminent lawyers
and jurists, clearly established that the Supreme Court had strayed from
its original character as a Constitutional Comi and gradually converted
itself illto a mere court of appeal to correct every error it found in the
decisions of the 24 High Courts and numerous Tribunals subordinate to
it.
G
15. The jurisdiction of the Supreme Collli, argued Mr. Venugopal,
was now being invoked in relation to matters falling within45 categories
listed in the Practice and Procedure Handbook. It was submitted that
there was an urgent need for a comprehensive re-appraisal of the role
of the Supreme Court and the need for restoring its exclusivity as
H
V. VASANTHAKUMAR v. H. C. BHATIA AND ORS. 63
[T.S. THAKUR, CJI]
suggested by Shri Andhyarujina in his article "Studying US Supreme A
Court Working" 1994 (4} SCC Journal 1. It was urged that filing of
cases in the Supreme Court since 1950 had increased exponentially for
as against 1215 cases filed in total in the Supreme Court in the year 1950
the total number of cases filed in the year 2014 (Upto November) were
no less than 81,853. This argued Mr. Venugopal showed a cumulative
B
annual growth rate of 6.8 per cent per year. It also suggested that the
number of cases filed in the Supreme Court doubled every year or so
and the trend continued. The Supreme Court was by that standard likely
to be facing a burden of nearly 1.5 lakh cases by the year 2025.
16. Shri Venugopal, further argued that on account of the distance
at which the Supreme Court is located from other parts of the country,
c
access to justice before the Supreme Court had been adversely effected
in as much as litigants from far off places were unable to reach the
Supreme Court as against those from High Courts that are closer in
proximity. This according to the learned Counsel denied equal justice to
citizens from these far off places in breach of the Constitutional mandate D
of equal access of justice to all. According to the learned counsel the
lack of access had led to a demand for Regional Benches of the Supreme
Court in different parts of the country or for setting up of National/
Regional Courts of Appeal. Shri Venugopal drew our attention to the
position in other countries, where too, because of the huge backlog of
cases, the systems had been reformed to provide Courts of Appeal as · E
.an intermediary Court between the High Courts and the Supreme Court.
He referred to a speech delivered by Hon 'hie Mr. Justice Susan Delham,
Chief Justice oflreland to argue that despite several initiatives like case
· management, use of information technology, mediation for amicable
settlement encouraged by the Courts, the burden that came to fall upon F
the Irish Supreme Court was making it difficult for that Court to cope up
with the situation. The solution which a working Group suggested was
referred to by the Chief Justice oflreland in the following passage of his
speech:
"Solution G
The solution advocated by the Working Group on a
Court of Appeal in the report published in 2009 was
the establishment of a Court of Appeal. This would be
a permanent court which would have several divisions,
H
64 SUPREME COURT REPORTS [2016) 5 S.C.R.
A to hear appeals in civil cases and to hear appeals in
criminal cases. Thus, there would be a permanent Court
of Appeal, with permanent judges on that Court, which
would sit in several divisions - civil and criminal.
All the other common law countries have a Court of
B Appeal in their legal system, placed between the Courts
equivalent to our High Court, and the Supreme Court."
17. The Indian story was no different contended Mr.Venugopal.
The working of the Supreme Court and the ever increasing burden which
has grown to almost unmanageable limits has made it extremely difficult
c for the Judges of this Court to contain the piling arrears to a reasonable
limit making it necessary for this Court to examine the possibility of
structural reforms and· to make suitable recommendations to the
Government for taking corrective measures including a possible
amendment of the Constitution.
D 18. Shri Andhyarujina while adopting the submissions made by
Shri Venugopal submitted that because of increased awareness, legal
literacy, development and resultant prosperity in the country, the number
of cases is bound to increase. Experie.~c_e shows that these cases leave
little time for the Court to take up important constitutional matters which
ought to engage the attention of this Court as its primary duty. He urged
E that it is time to give a thought to the formidable challenge that judiciary
is facing at the highest level and to push reforms that would not only
restore this Court to the glory it was meant to enjoy but also make access
to justice a reality by setting up Courts of Appeal which can be
approached by every litigant without having to travel long distances to
F Delhi.
I 9. Mr. Rohatgi, learned Attorney General, on the other hand
argued that the Writ Petition was not maintainable as the petitioner has
suppressed certain important facts which disentitle him to relief. It was
also contended that the proposed National Court of Appeal or Regional
G Courts ofAppeal were neither constitutionally permissible nor otherwise
feasible. He contended that Article 136 of the Constitution gives to the
citizens of this country an inalienable rightto invoke the appellate power
of this Court. That power being a basic feature of the Constitution, it
could not be taken away or conferred upon another Court or forum. Mr.
Rohatgi submitted that what was perhaps required was self restraint by
H
V. VASANTHAKUMAR v. H. C. BHATIA AND ORS. 65
[T.S. THAKUR, CJI]
this Court in the matter of entertaining special leave petitions as it was A
not necessary for this Court to correct every error committed by the
High Court or the statutory Tribunals set up to decide cases involving
different subjects and dimensions.
20. We have given our anxious consideration to the submissions
made at the Bar. Certain facts are beyond dispute. It is not in dispute B
that the Supreme Court was never meant to be a regular court of appeal.
It was meant to exercise its powers under Article 136 of the Constitution
only in cases which raised important questions involving interpretation
of the Constitution or questions of general public importance or questio-ns
of constitutionality of State or Central legislations or those raising
important issues touching Centre-State relationship etc. The jurisdiction
c
may also have been available to the Court where it found gross miscarriage -
of justice or an error so outrageous as no reasonable person would
countenance. The power to interfere was not meant to be exercisable
just because prolonged argument would eventually reveal some error or
irregularity or a possible alternative view on a subject that did not cause D
any miscarriage of justice of a kind that would shock the conscience of
the court on the subject. The-long line of decisions of the Court to which
we have made reference earlier supports that view. The fact, however
remains that the filing of cases in the Supreme Court over the past six
decades has grown so sharply that the Judge strength in the Supreme
Court is proving inadequate to deal with the same. Statistics show that E
more than 3f4th of the total number of cases filed are dismissed in limine.
Even so, the dismissal is only after the court has applied its mind and
heard arguments which consume considerable time of the Judges.
Dismissal of an overwhelming number of cases has not and does not
discourage the litigants or the member of the Bar from filing cases. That F
is why the number of cases filed is on the rise every year.
21. It is common knowledge thatthe huge backlog of cases in the
Supreme Court not only attracts criticism from the litigant public but also
from independent observers of the judicial systems. To add to the woes
of the Court there are a number of new legislations which provide for a G
first appeal to the Supreme Court, a role which the Supreme Court was
never intend§d to play in the Constitutional scheme. Suffice it to say
that the pronouncement of this Court sounding notes of caution against
liberal grant of special leave to appeal or exercise of restraint in the
matter of entertaining cases have lead to no meaningful improvement in
H
66 SUPREME COURT REPORTS [2016) 5 S.C.R.
A the situation.
22. What then is the way forward? Mis. VC'nugopal and
Andhyarujina argue that the way forward is setting ~~fR:~gional Courts
of Appeal, firstly, because the same would take justice closer to the
doorsteps of the litigants, especially those living at distant places and
B secondly, because an intermediary court would reduce the burden of the
Supreme Court without denying to the litigants an opportunity to agitate
his case before a court higher than the High Court. The only difference
in that situation will be that in place of the Supreme Court the Court of
Appeal would look into the matter and correct whatever needs to be
corrected in the judgment impugned before it. It is in that backdrop that
c following questions arise for our consideration:
. l . '
I. With access to justic~ being a fundamental right, would
the said right stand denied to litigants, due to the unduly
long delay in the disposal of cases in the Supreme Court?
D 2. Would the mere increase in the number of judges be an
answer to the problem of undue delay in disposal of cases
and to what extent would such increase be feasible?
3. Would the division of the Supreme Court into a
Constitutional wing and an appellate wing be an answer to
E the problem?
4. Would the fact that the Supreme Court oflndia is situate
in the. far North, in Delhi, rendering travel from the Southern
states and some other states in India, unduly long and
.expensive, be a deterrent to real access to justice?
F 5. Would the Supreme Court sitting in benches in different
parts oflndia be an answer to the last mentioned problem?
6. Has the Supreme Court of India been exercising
jurisdiction as an ordinary court of appeal on facts and law,
in regard to routine cases of every description?
G 7. Is the huge pendency of cases in the Supreme Court,
caused by the Court not restricting its consideration, as in
the case of the Apex Courts of other countries, to
Constitutional issues, questions of national importance,
differences of opinion between different High Courts, death
H
V. VASANTHAKUMAR v. H. C. BHATIA AND ORS. 67
[T.S. THAKUR, CJI]
sentence cases and matters entrusted to the Supreme Court A
by express provisions of the Constitution?
8. ls there a need for having Courts of Appeal, with
exclusive jurisdiction to hear and finally decide the vast
proportion of the routine cases, as well as Article 32 petitions
now being decided by the Supreme Court of India, especially B
· when a considerable proportion of the four million cases
pending before the High Court may requirereview by a
higher intermediate court, as these judgments of the High
Courts may fail to S!\tisfy the standards of justice and
competence expected from a superior court?·
c
9. lffour regional Courts of Appeal are established, in the
Northern, Southern, Eastern and Western regions of the
Country, each manned by, say, fifteen judges, elevated or
al?pointed to each Court by the (ollegium, would this not
·satisfy the requirement of' access to justice' to all litigants .
from every part of the country? D
I 0. As any such proposal would need an amendment to the ·
Constitution, would the theory of 'basic structure' of the·
Constitution be violated, ifin fact, such division of exclusive
jurisdiction between the Supreme Court and the Courts of
Appeal, enhances the efficacy of the justice delivery system E
without affecting the independence of the judicial wing of
the State?
11. In view of cases pending in the Supreme Court oflndia
on average for about 5 years, in the High Courts again for
.about 8 years, and anywhere between 5-10 years in the F
Trial Courts on the average, would it not be part of the
responsibility 'IIld duty of the Supreme Court of India. to
examine throu6h a Constitution Bench, the issue of divesting
the Supreme Court of about 80% of the pendency of cases
of a routine nature, to recommend to Government, its opinion G
, on the proposal for establishing four Courts of Appeal, so
that the Supreme Court with about 2500 cases a year instead
of about 60000, may regain its true status as.a Constitutional
Court?
H
68 SUPREME COURT REPORTS [2016] 5 S.C.R.
A 23. Keeping in view the importance of the above questions and
the need for reforms which have been long felt, we deem it proper to
refer the same to a Constitutional Bench for an authoritative
pronouncement. The Registry shall, accordingly, place the record before
the Hon'ble Chief Justice for constituting an appropriate bench.
B
Devika Gujral Matter referred to larger bench.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Supreme Court"Sign in to search