Split the Supreme Court

Split the Supreme Court
- Rajeev Dhavan

Designed as a Supreme Court (SC), it has now become like a High Court (HC). Its jurisdiction is too wide, its jurisprudence too unwieldy. Drowned by with arrears of cases, its pivotal constitutional work suffers. Its 50,000 cumulative pendency may be nothing compared to 38 lakh arrears in the HCs and 3.6 crores in the Lower Courts.

Our justice system has become something of a lottery. The SC contributes to the lottery. Judges working at breathless speed cannot deliver an even handed and consistent justice. It does not matter how hard the SC judges work. They are drowned by it. Desperate measures have not made a dent. Today, some benches (notably Justice Katju’s bench) dispense quick justice when the judges think they have understood the file without fully reading it. Quick intuitive justice is no justice.

Despite this, the SC surpasses itself. Constantly in the news, it decides issues of national significance. Its work is often likened to T20 cricket. If test cricket is played, it is always in a hurry. Under the circumstances, the judges have done well. But for how long, with what loss of quality?

The present strategy of increasing judges and hacking down pending cases is not the answer. The Court needs to split into two: a separate court of appeal and a constitutional court. Between the HCs and the SC, there should be a Court of appeal for all civil, criminal, tax, reference and other cases. This Court could have twelve benches of 3 judges – each of whose decision would be final. The SC should become a constitutional court with 9 judges sitting together en banc and a new procedure whereby it would select what it wants to hear. At present this selection takes 50% of the SCs time. Its jurisdiction would be limited to (a) fundamental rights (FR) cases (b) federal disputes between states (c) any matters relating to the interpretation of law, and governance, under the Constitution – broadly covering the Writ jurisdiction of most of the High Courts (HCs). If it works for the HCs, it should for the SC. In this regard, the federal jurisdiction would be exclusive. FR cases could come directly or by appeal as would other constitutional and administrative law issues. The ‘Advisory Jurisdiction’ would remain. The judges sitting together would make the Court’s work more cohesive.

The SC’s pronouncements on governance are spectacular¬. But, it has become an overburdened goods train with a broken down shatabdi express engine. The new solution would require a better selection of judges through wider collegiates not the present inward looking ‘SC’ cabal. The ages of all High Court, Appeal Court and Supreme Court judges should be 65 years. This will take the edge off competitive rivalries and selection. A better registry and management will save time. Judges will have time to consider and think issues through. If politicians are custodians of the political texts of the Constitution, judges are custodians of the justice texts; and, indeed the Constitution itself. Improving unit cost efficiency in disposing cases will not achieve justice or good governance. Structural changes are needed. Things can go wrong. They have.