The manifesto of the Indian National Congress released on Tuesday has a section on the Judiciary, which promises, among other things, to “make the Supreme Court a Constitutional Court that will hear and decide cases involving the interpretation of the Constitution”, “establish a new Court of Appeal”, and enhance representation in the judiciary at all levels of sections of society that are underrepresented currently.
These ideas are not original, and most have, in fact, been debated for years. While the party has said that “Congress Will Deliver” if it is voted to power, and promised to “present a report to the people of India, every year, on the status of implementation of our manifesto”, election manifestos are not legally enforceable documents. In 2015, a Bench of Chief Justice of India H L Dattu and Justice Amitava Roy declined to entertain a petition filed by advocate Mithilesh Kumar Pandey on this subject, saying there was no provision in law under which political parties could be held liable for not fulfilling promises made in their election manifestos.
The world’s first constitutional courts were set up in Europe — in Austria in 1920 and in Germany after World War II. Today, 55 countries have constitutional courts, including most European or civil law jurisdictions.
In the early decades of the Republic, the Supreme Court of India, too, functioned largely as a constitutional court, with some 70-80 judgments being delivered every year by Constitution Benches of five or more judges who ruled, as per Article 145(3), on matters “involving a substantial question of law as to the interpretation of [the] Constitution”.
This number has now come down to 10-12. Due to their heavy workload, judges mostly sit in two- or three-judge Benches to dispose of all kinds of cases — including a demand for a ban on sardar jokes, bans or lifting of bans on films, PILs asking that Muslims be sent out of the country, and allegations that a commissioner of police is misusing his powers.
This is because India’s Supreme Court is perhaps the world’s most powerful court, with a very wide jurisdiction. It hears matters between the Centre and states and between two or more states, rules on civil and criminal appeals, and advises the President on questions of law and fact. On the question of violation of fundamental rights, anyone can approach the Supreme Court directly.
The result: more than 65,000 cases are pending in the Supreme Court, and disposal of appeals takes many years. Several cases involving the interpretation of the Constitution by five or seven judges have been pending for years.
The Congress manifesto promises that the Supreme Court will hear, apart from constitutional matters, “other cases of legal significance or national importance”. This is a vague expression, and can open the floodgates to a wide variety of cases.
The Congress proposal then, is neither innovative nor new. Back in March 1984, the Tenth Law Commission of India (95th Report) under Justice K K Mathew recommended that “the Supreme Court of India should consist of two Divisions, namely (a) Constitutional Division, and (b) Legal Division”, and that “only matters of Constitutional law may be assigned to the proposed Constitutional Division”.
The Eleventh Law Commission under the chairmanship of Justice D A Desai (125th Report, 1988) “reiterate(d) that the recommendation for splitting the (Supreme) Court into two halves deserves to be implemented”.
The Eighteenth Law Commission under Justice A R Lakshmanan (229th Report, 2009) recommended that “a Constitution Bench be set up at Delhi to deal with constitutional and other allied issues”, and “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 Kolkata and the Western region/zone at Mumbai to deal with all appellate work arising out of the orders/judgments of the High Courts of the particular region”.
Indeed, many countries around the world have Courts of Cassation that decide cases involving non-Constitutional disputes and appeals from the lower level of courts. These are courts of last resort that have the power to reverse decisions of lower courts. (Cassation: annulment, cancellation, reversal)
Prior to the establishment of the Supreme Court, appeals against decisions of Indian High Courts could be filed only with the Privy Council in London. The Federal Court of India established in 1937 under the provisions of the Government of India Act, 1935, had jurisdiction only in constitutional matters. When the jurisdiction of the Privy Council was abolished in 1949, appeals pending with it were transferred to the Federal Court, which was subsequently named Supreme Court.
Court of Appeal
The Congress has said it would amend the Constitution “to establish a Court of Appeal between the High Courts and the Supreme Court” that would “sit in multiple Benches of 3 judges each in 6 locations”, and hear civil and criminal appeals from the High Courts.
Article 39A says 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”.
Indeed, travelling to New Delhi or engaging expensive Supreme Court counsel to pursue a case is beyond the means of most litigants. Standing Committees of Parliament recommended in 2004, 2005, and 2006 that benches of the court be set up elsewhere. In 2008, the Committee suggested that at least one Bench be set up on a trial basis in Chennai. But the Supreme Court has not agreed with the proposal, which in its opinion would dilute the prestige of the court.
Article 130 says that “the Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.” Supreme Court Rules give the Chief Justice of India the power to constitute Benches and he can, for instance, have a Constitution Bench of seven judges in New Delhi and set up smaller Benches in four or six places across the country.
The Congress manifesto has promised to “establish a National Judicial Commission (NJC) that will be responsible for selection of judges for appointment to the High Courts and the Supreme Court”, and “an independent Judicial Complaints Commission to investigate complaints of misconduct against judges”.
A National Judicial Appointments Commission (NJAC) was set up by the Narendra Modi government in 2014. In 2016, the Supreme Court struck down the 121st Amendment and the NJAC Act as being violative of the basic structure of the Constitution with regard to the independence of the judiciary and primacy of the opinion of the CJI in judicial appointments.
The Congress seeks to make another attempt, with an NJC “comprised of judges, jurists and parliamentarians”, but has given no details on whether the lawmakers would be from the ruling party or the opposition, or on how they would be selected.
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Currently, there is no mechanism to ensure accountability of Supreme Court and High Court judges short of impeaching them under Articles 124(4) and 217(1)(b) for “proved misbehaviour or incapacity”. The procedure is so cumbersome that no judge has been impeached and removed from office so far. A controversial move last year to impeach CJI Dipak Misra was thwarted by the Chairman of Rajya Sabha.
Impeachment proceedings are currently conducted under The Judges (Inquiry) Act,1968. The Judges (Inquiry) Bill, 2006, which was introduced in Lok Sabha in December 2006, was based on the 195th Report of the Law Commission. In December 2010, the UPA-2 government introduced The Judicial Standards and Accountability Bill, 2010, in Lok Sabha. The Bill, which Lok Sabha passed in 2012, sought to set up a Judicial Oversight Committee, a Complaints Scrutiny Committee, and an Investigation Committee to examine complaints of misbehaviour against judges, and required judges to declare the details of their and their family members’ assets and liabilities.
The Bill was criticised on the grounds that the Constitution does not permit Parliament to assign the task of examining proved misbehaviour of judges to an outside agency or committee. The definition of ‘misconduct’ was considered problematic, as even the delayed filing of assets statements could be considered ‘misconduct’. Due to opposition by judges and the lack of political consensus, the Bill was not passed by Rajya Sabha, and lapsed on the dissolution of Lok Sabha in 2014.
Diversity in judiciary
The Congress’s promise “to enhance representation at all levels of the judiciary for women, SC, ST, OBC, minorities and other under-represented sections of society” is not a proposal to introduce reservation in the higher judiciary, but a mechanism to improve its diversity quotient.
It is true that the diversity of India is not reflected in its judiciary, especially in the High Courts and the Supreme Court. The nation is yet to have its first woman CJI. The first woman judge of the Supreme Court, Justice M Fathima Beevi, was appointed only in 1989. After the retirement of Justice Ruma Pal in June 2006, the Supreme Court had no woman judge until 2010 when Justice Gyan Sudha Mishra was elevated. Thereafter, Justice Ranjana Prakash Desai was appointed in 2011. Justices R Banumathi, Indu Malhotra, and Indira Banerjee were appointed in 2014, April 2018, and August 2018 respectively.
President K R Narayanan had raised the issue of poor representation of Dalits in the higher judiciary. Justice K G Balakrishnan has been India’s only Dalit CJI so far. Justice S Abdul Nazeer is the only Muslim judge in the Supreme Court at present, even though there were four Muslims on the Bench in 2013.
(The author is an expert of constitutional law and Vice-Chancellor of NALSAR University of Law, Hyderabad. Views are personal.)