Next CJI's Plan To Carve Out Five-Judge Constitutional Bench Is A Half-Measure

The next Chief Justice of the Supreme Court, Justice U U Lalit, who will have a short tenure of 74 days when he assumes office from 27 August, has correctly decided to focus on administrative issues to improve the efficiency of the court. His aim, according to an NDTV report, is to get “maximum output through the limited resources".

In a Times of India report today (16 August), Justice Lalit listed two possible areas for improving efficiency. One is to earmark a special constitutional bench that will hear only constitutional cases all year round, and another is to penalise 'frivolous' litigation which tends to waste the court’s time.

“If the Supreme Court, when it had seven or eight judges, could spare five to set up a constitutional court, today, with a strength of 34 judges, we can surely set up a permanent five-judge bench for that purpose,” he is quoted as saying.

On frivolous litigation, he said: “We must devise a mechanism by which courts should mandatorily impose cost on bringing frivolous cases to courts. The losing side in a frivolous case must be saddled with the cost of using precious judicial time and resources.”

Both these statements are directionally correct, for they acknowledge that a key reason for judicial delays lies within the cumbersome and arbitrary system the court has created for itself.

However, the unstated assumption, that the judicial system can be fixed from within, ie, without supportive legislation, is flawed. The truth is we need consensus legislation in several areas, including a system for appointing judges that is not controlled by the collegium, for fixing judicial accountability, and for speeding up court processes.

Let’s deal with each of Justice Lalit’s ideas separately and examine them on merit. The idea of the permanent constitutional bench carved out of the current sitting pool of judges is better than any arbitrary drawing of judges for constitutional benches based on need.

At the very least, it will bring focus and a better way of dealing with constitutional cases.

Too many genuine constitutional cases — from the Citizenship Amendment Act to the nullification of article 370 to the review of the Sabarimala judgement to the plea to free temples from state control — are nowhere near being heard, despite being on the Supreme Court’s to-do agenda for years on end. A constitutional bench carved out of the 34-bench court will help bring focus and specialisation to the matter.

But, if the idea is to give this carve-out bench longevity, it will need judges with at least four to five years of tenure left. Which means senior and more experienced judges will be drafted here, while junior ones will decide the everyday appeals. And if the Chief Justice of India (CJI) must be part of this constitutional bench, longer tenures will become difficult, since CJIs tend to have short residual tenures by the time they take over.

The idea of splitting the Supreme Court into two parts is not new, and if it is to become really transformative, it should be backed by law and not become some kind of internal arrangement worked out from within the Supreme Court which can be overturned by another CJI or impeded by short tenures.

The system of the collegium deciding who should become a judge, which was created within the judiciary internally, has not worked as well as it was intended. The judiciary should not be the one to both create the law and administer it. It must have the executive and legislature on board for any such transformative changes to deliver lasting benefits.

The idea of splitting the Supreme Court into a constitutional bench and a court of appeals was suggested by the 11^th Law Commission in 1988, in its 125^th report. In 2009, the 18th Law Commission, again made the same suggestion, but more forcefully.

The Commission, headed by Justice (Retd) A R Lakshmanan, recommended:

“(1) A Constitution Bench be set up at Delhi to deal with constitutional and other allied issues….

“(2) Four Cassation Benches (ie, courts of final appeals) 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.

“(3) If it is found that article 130 of the Constitution cannot be stretched to make it possible to implement the above recommendations, Parliament should enact a suitable legislation/Constitutional amendment for this purpose.”

Article 130 merely 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.”

Conclusion: The judiciary must enter into a transparent dialogue with the executive to work out the best way forward. Trying to carve out a five-judge internal constitutional bench is a halfway house. It will not be optimum for two other reasons.

One, a five-judge bench may not be good enough if previous judgements delivered by seven-, nine- and even 13-judge benches (Kesavananda Bharati case) are litigated again. Even in the Sabarimala review case, CJI S A Bobde set up a nine-member bench, though it came to naught due to delays.

The best way forward is thus to create a nine-judge constitutional bench that is separate from the appellate courts that can also be regionally based. We can thus have a permanent nine-judge Supreme Court of India and a much larger Court of Final Appeals under it, based regionally.

Two, a five-judge bench is still small (if 13-judge bench is too big) to decide constitutional cases since diversity would be minimal. A five-judge bench threw out the National Judicial Appointments Commission, a law that was unanimously passed by Parliament and legislatures. Too few is as problematic as too many judges on a bench in matters of such importance.

Let’s then focus on the other issue Justice Lalit raised: 'frivolous' cases.

Three points can be made here.

First, how did we get here in the first place? The answer lies in the courts becoming activist after 1976, when the Supreme Court looked into a public interest litigation (PIL) in ADM Jabalpur Vs Shivakant Shukla during the emergency. Since then, PILs have grown into an avalanche, encouraged largely by the court’s willingness to hear them.

If 'frivolous' cases are piling up, its because the courts themselves prefer to hear such cases instead of humdrum everyday appeals. If frivolous cases are to be reduced, PILs ought to incur a cost even at the introduction stage, and not just after they are lost by one of the litigants.

Second, we must take a relook at Article 142, which gives courts the power to make the law — almost like the legislature. Article 142(1) reads:

“The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.”

It is this article, and the Supreme Court’s expanded brief of ensuring “complete justice”, that opens the door to so many 'frivolous' cases, since almost anybody can claim that complete justice has not been given in this case or that. If the courts were restricted only to interpreting the law, or directing the executive to bring in a law where legal gaps exist, then there would be very few frivolous litigation.

Once again, there is a need for the Supreme Court leadership to talk to the executive to amend Article 142.

Third, judges are not bringing up the matter for the first time. In 2011, Justices R V Raveendran and S K Patnaik, wanted the cost of frivolous litigation to be raised to Rs 1 lakh instead of nominal sums like a few thousands.

In 2017, a bench headed by Chief Justice J S Khehar, D Y Chandrachud and S K Kaul also said that exemplary costs must be imposed to prevent frivolous litigation. The bench wanted various courts to impose such costs consistently. The matter came up again this year with a vacation bench of Justice B R Gavai and Hima Kohli this June, but after first proposing a penalty of Rs 18 lakh for frivolous litigation, the court reduced it to Rs 2 lakh. The courts are willing to wound, but afraid to strike, for some reason.

Again, how will various courts act uniformly when the law is not there to enforce such uniformity?

Conclusion: Frivolous litigation is largely the result of the court’s own loose and arbitrary processes in deciding which cases it will take up. There are no benchmarks for deciding which cases cross the line, and on the minimum costs that all courts must impose on frivolous litigants.

In the past, the Supreme Court has itself helped lower courts delay justice when it reduced the Atal Bihari Vajpayee era rules for speeding up civil cases as mere guidelines that could need not always follow (read here).

Lastly, in the interest of higher judicial productivity, maybe Justice Lalit, when he becomes CJI, should start taking a pair of scissors to the judicial vacation calendar.

A study by SC Observer, even while noting that Indian courts sit for hearings on many more days during the year, underlined that it had the longest holiday/vacation list in the countries studied (the US, Australia, the UK, Bangladesh and Singapore).