Something About The Law

Somnath Chatterjee, Former Speaker of the Lok Sabha, propogated yesterday, in the Economic Times, the establishment of circuit benches with apex appellate jurisdiction, leaving the Supreme Court at the Centre to decide on “questions of constitutional importance”. From his article:

I was asked whether it was necessary to curtail the SC’s jurisdiction to only very important issues and not burden it with ordinary litigation, including appeals. I feel 2-3 SC judges could constitute the circuit benches and dispose of the appeals at different centres in their capacity as SC judges, making their judgements final.

The Chief Justice of India will remain in Delhi with other learned judges who would decide on issues of constitutional importance or of great national importance — those cases that may be so designated by the bench in Delhi or other circuit benches.

A similar argument had been made by former Justice Krishna Iyer (“Questions of Judicial Access,” The Hindu, February 3, 2010) and subsequently elaborated upon by Mr. K.K. Venugopal:

The Supreme Court would then be left with only those cases which would fall within the jurisdiction vested in it by the framers of the Constitution and covering essentially the following matters:

1. All matters involving substantial questions of law relating to the interpretation of the Constitution of India or matters of national or public importance;

2. Settling differences of opinion on important issues of law between High Courts or between Courts of Appeal;

3. Validity of laws, Central and State;

4. After the Kesavananda Bharati case, (1973) 4 SCC 217, the judicial review of Constitutional Amendments;

5. Resolving conflicts between States and the Centre or between two States, as well as the original jurisdiction to dispose of suits in this regard; and

6. Presidential References under Article 143 of the Constitution.

The suggestion is ingenious, and if implemented could indeed reduce a lot of backlog from the courts. While we hail it as a welcome step for expedient litigation, we feel called upon to make a few comments regarding the effectiveness and possible consequences of such a policy.

To start with, this move would effectively terminate the ever-present debate on judicial activism, begun by well-intentioned judges such as Justice Bhagwati in the eighties and carried forward into the new millennium with all the sanctity of black-letter law. Hitherto, the Court had allowed Public Interest Litigation as an effective means of seeking speedy redressal in the face of legislative and executive “inaction”. With the new scheme in place, the circuit courts would be limited to hearing appeals from judgements of High Courts, effectively cutting out scope for innovation (sic). The Supreme Court at the centre would be limited to the six categories outlined by Venugopal, none of which include any direct path towards PIL. I am sure several litigants as well as judges would try to read into “matters of national or public importance” the issuing of directives, but technically everything is a “matter of public importance”, and moreover this would frustrate the purpose of dividing the Supreme Court’s work, as it would lead to a flurry of new litigation masquerading as PIL as a short cut to the Centre. It would be interesting to see/read the response of a pro-activism judge such as Ruma Paul, Bhagwati or the former CJI regarding the accommodation of activism within a bifurcated court.

Secondly, the distinction between matters 1 and 6 remain unclear. Article 143 (in matter 6) grant the President the power to seek reference from the court on the grounds that are enumerate in matter 1 . This would mean the new constitutional court would have the ability to look at questions of constitutional interpretation or public importance independent of the President’s reference. I have already said how “public importance” would become a tool for the introduction of PIL and frustrating the new scheme. As for questions of “constitutional interpretation”, the line demarcating ordinary appeals from questions of constitutional interpretation is very thin. Most appeals involve (a) a statutory provision that has been claimed to be violated; and (b) objections regarding jurisdiction filed by the opposite party, challenging the locus of the court to decide the case. Most objections regarding jurisdiction argue Articles 226 or 136 of the Constitution; this would mean that any ingenious lawyer could lift a matter out of a circuit bench by simply challenging the jurisdiction of the bench, calling into question the interpretation of either jurisdictional Article, which would put the matter up before the Supreme Court.

Matter 2, ‘Settling differences of opinion on important issues of law between High Courts or between Courts of Appeal’ sounds ambitious and is ambiguous. Who is to decide whether the issue of law is important enough to be warranted the Supreme Court? In case of a difference of opinion between High Courts, shouldnt the Court of Appeal be the next likely forum?

The Validity of laws, Central and State, is Venugopal’s third suggestion. However he confuses us by continuing:

Similarly, I would omit Article 32 from the original jurisdiction of the Supreme Court. This means that actions alleging breaches of fundamental rights would be brought before any of the Courts of Appeal instead of the Supreme Court which would only exercise its appellate jurisdiction in such cases if questions are presented whose resolution will have immediate importance far beyond the particular facts and parties involved.

So while the Courts of Appeal decide whether fundamental rights have been breached, the Supreme Court decides the validity of the laws that breach those rights. Unfortunately the two are linked in so far as Article 13 declares unconstitutional (and void) any law that breaches fundamental rights. This means that the minute a Court of Appeal declares a law to breach any FR that part of the law would become invalid – but the validity of laws is the domain of the Supreme Court.  Admittedly Venugopal qualifies his claim by mentioning that the Supreme Court would continue to decide questions of ‘ immediate importance far beyond the particular facts and parties involved’. In the discourse of fundamental rights and Part III of the Constitution, these words however mean nothing. Breaches of fundamental rights under Article 13 are by definition not limited to the facts and parties involved.

While the step is welcome, I would insist that the technicalities of implementation be subject to more rigorous academic debate. All of the objections above can be redressed by further streamlining the jurisdiction of the Courts and introducing caveats into the generalisations. We look forward to comments and criticisms about the same.

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