Making a case for regional benches of the Supreme Court

As virtual hearings being conducted by the Supreme Court due to the pandemic make it possible for lawyers across the country to present before the apex court without the need to travel to Delhi, it is time to pay heed to the recommendations made by multiple reports by the Law Commission of India and set up regional benches of the Supreme Court across the country to make the institution more accessible to citizens, writes SHAIVIKA AGRAWAL.

THE COVID-19 pandemic resulted in unprecedented changes in the working of courts in India. What could only be thought of as a far-fetched fantasy, the pandemic-induced lockdown brought to reality, as courts adopted technology and functioned virtually through video-conferencing.

As per this new way of functioning, conference links were provided to advocates whose matters was listed for a particular day. Every court generated its own different link. Advocates, located in any part of the world, would join the court proceedings through the link, and attended to their matters. This enabled an advocate sitting in southern India to attend a matter before Supreme Court, which is located in Delhi, without any need to arrange for travel or accommodation.

Also read: Supreme Court emerged as global leader in virtual hearings: Centre tells Parliament

History of the Supreme Court

During the rule of the East India Company, Supreme Courts were situated in Madras, Calcutta and Bombay in our country. These courts turned into High Courts through the enactment of the Indian High Courts Act, 1861. The Government of India Act, 1935 introduced the Federal Court of India, which became the highest court in India, and appeals against High Court judgments were mentioned here. This Federal Court of India became the Supreme Court of India on 28 January, 1950. By virtue of Article 130 of the Indian Constitution, the Supreme Court came to be located in New Delhi.

At present, the Indian judicial system has one Supreme Court and 25 High Courts. The Supreme Court began with a Chief Justice and 7 puisne judges. Earlier, all of the 8 judges used to sit together and heard the cases presented before them. This concept of all the judges sitting together to hear a matter is prominent in the Supreme Court of the United States of America. But in India, as the work of the Supreme Court increased and arrears of cases began to accumulate every year, it was deemed fit to increase the number of judges and constitute benches of judges in the Supreme Court.

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Through amendments in the Supreme Court (Number of Judges) Act, 1956, the Parliament increased the number of judges from 8 to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986, 31 in 2008, and finally, to 34 in 2019. It became the norm for two-judge or three-judge benches of the Supreme Court to hear as many matters as possible and dispose of them (matters of constitutional importance would be heard by benches of at least five judges).

However, in 2019, owning to the huge backlog of the cases, the Supreme Court, amending its Supreme Court Rules, 2013, allowed single-judge benches to hear the matter. In the present day, too, the Supreme Court continues to struggle with its enormous backlog of the cases; as of the beginning of August, almost 70,000 matters are pending before the apex court.

Also read: What does data on pendency of cases in Indian courts tell us?

Supreme Court’s location in Delhi excludes a vast majority

It is an old adage that justice must not only be done but must also be seen to be done. The Supreme Court is the last spoke in the wheel of the justice system. Several matters that begin in lower courts or the High Courts reach the apex court for deciding the finality of the matter. Since the Supreme Court is situated in New Delhi, access to justice becomes illusory for many litigants and lawyers alike.

Not everyone has the means or the resources to travel all the way to Delhi for every single hearing. Article 21 of the Constitution envisages the right to justice and access to justice as fundamental rights of all persons. Yet, it becomes a chimera in the face of the practical reality of the physical distance of the Supreme Court for the vast majority of our fellow citizens.

Also read: Open the virtual doors of the Court

The Supreme Court, apart from it functioning as a Constitutional Court, deals majorly with appeals from High Courts and tribunals, under Article 136 of the Constitution. Article 136 provides a special leave jurisdiction for the Supreme Court which was supposed to be used in cases dealing with questions of law. But in today’s time, the Supreme Court is entangled with adjudication of appeals only.

As per a report by civil society organization DAKSH, the probability of appeals to the Supreme Court made by appellants situated closer to Delhi was considerably higher than those situated farther away. In 2011, the four High Courts that were the closest to the Supreme Court were the ones with the highest appeal rates. Although these states comprised merely 7.2% of the total population of the country, the appeals from these courts constituted 34.1% of the aggregate appeals to the Supreme Court.

Also read: Virtual Courts and the Technologically Handicapped

Numerous recommendations made by political leaders, Law Commission of India, Parliamentary Standing Committees  

In 2019, the Vice-President of India Venkaiah Naidu suggested that the Supreme Court should institute regional benches to tackle its enormous backlog and to ensure their speedy disposal. The Rajya Sabha member and Senior Advocate P. Wilson wrote to then Union Law Minister Ravi Shankar Prasad in December last year urging the Government to introduce a Bill to amend Article 130 of the Constitution to provide for regional benches of the Supreme Court in Mumbai, Chennai and Kolkata.

Prasad responded to the letter by stating that the idea of separate Supreme Court benches outside Delhi has not found favour either within the Supreme Court or with Attorney Generals of India when consulted in this regard. He also made reference to a writ petition filed before the Supreme Court in 2016 requesting for similar structural reforms, which was subsequently referred to a larger Constitutional bench and has been pending ever since.

Wilson even moved a Private Member’s Bill regarding the same last month in the recently concluded Parliamentary session.

Also read: Challenges in Setting up Virtual and Online Courts in India

Back in 1984, the 95th Report of the Law Commission of India recommended that the Supreme Court may be divided into two divisions, namely: Constitutional and Legal. Thereafter, in 1988, in its 125th Report, the Commission reiterated its recommendations made in its 95th report, and argued that splitting the Supreme Court into divisions would make justice more widely accessible thereby significantly reducing the expenses the litigants face.

Further down the line, in 2009, in its 229th Report, the Commission recommended setting up of four cassation benches, divided into North, South, East and West zones, located in Delhi, Chennai, Kolkata and Mumbai respectively. The report argued that matters dealing with constitutional and other allied issues can be taken up by the Delhi bench, and appellate work can be taken in the regional benches from which it arises.

In light of this report, the Parliament Standing Committee on Personnel, Public Grievances, Law and Justice presented its 107th report on ‘Demands for Grant (2021-22) of the Ministry of Law and Justice’ on March 16, 2021, and batted for the establishment of the regional benches of the Supreme Court as suggested in the 229th report of the Law Commission. The Committee in its report emphasized on access to justice and stated that “… it is not possible for the people living in far-flung and remote areas to come to the National Capital for seeking justice for various reasons“. Earlier as well, Standing Committees of the Parliament recommended in 2004, 2005 and 2006 that Benches of the Court may be set up elsewhere.

So far, none of the suggestions have borne any fruit.

Also read: Lawyers Day: Attorney General calls for the continuous live streaming and video conferencing of court proceedings 

Article 39A of the Constitution provides that “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”.

The Supreme Court, being the highest judicial authority has an obligation and duty to impart justice to its people. Justice not only pertains to the fortunes of the litigants in the cases being actually heard, but the process around it as well.

The Chief Justice of India should be situated in Delhi, but there could be regional benches, covering all the directions of the country for not just easy access to the Courts but also to reduce the huge pendency that the Courts are saddled with. An opinion in Bar and Bench advocates for decentralization of judiciary, that is, devolution of judicial powers from Centre to states by establishing regional benches of the Supreme Court. This will also generate employment, and ensure an effective and efficient way of justice delivery.

(Shaivika Agrawal is a final year LL.B. student from Lloyd Law College, Greater Noida. The views expressed are personal.)

The article was originally published in The Leaflet.