Polity

The States Reorganisation Commission (SRC) view on Telengana issue


The States Reorganisation Commission, which consisted of Hon. Fazal Ali, K.M. Panikker and H.M. Kunzru, did not reject the demand for a separate Telangana State.

1. Paragraph 382 of the report said: "It seems to us, therefore, that there is much to be said for the formation of the larger State and that nothing should be done to impede the realisation of this goal.At the same time, we have to take note of the important fact that, while opinion in Andhra is overwhelmingly in favour of the larger unit, public opinion in Telangana has still to crystallise itself.Important leaders of public opinion in Andhra themselves seem to appreciate that the unification of Telangana with Andhra, though desirable, should be based on a voluntary and willing association of the people and that it is primarily for the people of Telangana to take a decision about their future."

2. Paragraph 386 said: "After taking all these factors into consideration we have come to the conclusion that it will be in the interests of Andhra as well as Telangana, if for the present, the Telangana area is constituted into a separate State, which may be known as the Hyderabad State, with provision for its unification with Andhra after the general elections likely to be held in or about 1961, if by a two thirds majority of the legislature of the residuary Hyderabad State expresses itself in favour of such unification."


Judicial appointments and norms

The procedure and process of appointment of Judges of the High Courts and the Supreme Court has been the subject matter of three judgments of the Supreme Court.

The first one (Justice P.N. Bhagwati in S.P. Gupta v. UOI) commented adversely on secrecy, confidentiality and non consultative nature of the procedure. This judgment has been overturned only on two points.

Ø  First, primacy is now given to the opinion of the CJI and not the Central government.

Ø  Secondly, in view of the wider consultation required, judicial review is excluded except where the requisite consultation is not done or the appointee is ineligible.

Further certain changes were introduced by two subsequent judgments of the Supreme Court (SCAORA v. UOI and Presidential Special Reference No.1 of 1998). Both these are nine-Judge Bench judgments.

Ø  The first change is that the circle of Judges to be consulted has been enlarged to include some senior judges in different collegiums, and a wider consultation amongst knowledgeable judges is taking place.

Ø  Secondly, the substantial exclusion of judicial review makes the process virtually non-transparent and unaccountable. 

JUDICIAL REFORM

Discussing the proposal for establishing  four regional Courts of Appeal as final appellate courts, while restricting the Supreme Court of India to its true function as a Constitutional Court,

Why it is required …

1  Enhancing role of Supreme Court

1.      Over the last six decades, the Supreme Court's extraordinary power has manifested itself in the form of judgments encompassing every sphere of the nation's activity.

2.      No grievance has been too insignificant to attract the court's palliative and curative jurisdiction.

3.      Inspired by the desire to give true meaning to the Constitution's promise of justice, liberty and equality for all, no litigant has been turned away by the Supreme Court, and there is virtually no area of human endeavour in regard to which it has not exercised its jurisdiction, original or appellate.

2  Arrears of cases

There is, however, a price to be paid for the court's metamorphosis into a powerhouse of judicial activism: the problem of mounting arrears.

1.      As of September 2009, there were no less than 53,221 cases pending before the Supreme Court.

2.      Arrears in the Supreme Court had leaped from 680 cases in 1950 to over 100,000 by 1989.

3.      The pendency of cases came down to 19,000 in 1997 due, in large part, to the manner in which petitions and interlocutory applications came to be numbered together.

4.      There has, however, been a worrying 150 per cent increase in total pendency between 1997 and 2009.

In my view,

1.      This calls for a reassessment of the normative and constitutionally mandated role of the Apex Court.

2.      Merely augmenting the number of judges in the Supreme Court will not solve the problem of arrears.

Ø  Previous attempts to tackle arrears by making additions to the Bench have proven to be unsuccessful.

Ø   The original strength of eight judges in 1950 has progressively been increased by amendments to the Supreme Court (Number of Judges) Act of 1956, to 11 in 1956, 14 in 1960, 18 in 1977, 26 in 1986 and 31, today, but still the problem remains.

3.      On the contrary, there is good reason to believe that expanding the capacity of the court may aggravate rather than alleviate the inefficiencies in the current system.

3  Supreme Court turning into Court of appeal

A cursory glance at the Supreme Court's Practice and Procedure Handbook will reveal how far the court has strayed from its original character as a Constitutional Court and gradually converted itself into a mere court of appeal

1.      This has sought to correct every error it finds in the decisions of the 21 High Courts and numerous Tribunals from which appeals lie to it.

2.      The jurisdiction of the Supreme Court may now be invoked in relation to matters falling within any of 45 categories listed in the Practice and Procedure Handbook.

Ø  These include the entire gamut of routine cases involving labour law, the rent act, direct and indirect taxes, acquisition of land, service law, criminal law, family law, and so on.

Ø  These 45 heads further have 140 sub-categories under which the court may be called upon to exercise its appellate jurisdiction.

Points to be considered….

1.      Surely, however generous one may be in seeking to render justice to all, it will be obvious to anyone that if an Apex Court attempts to adjudicate all such cases, it will defeat the great purpose for which the court was established under our constitutional system.

2.      In such a scenario, it necessarily has to accumulate vast arrears over a period of time, which will be impossible for it to clear in any foreseeable future.

3.       This is a self-inflicted injury and the cause of the malaise which has gradually eroded the confidence of litigants in the Apex Court, mainly because of its failure to hear and dispose of cases within a reasonable time-frame.

Solutions that can be considered ….

1.      The cause of justice and the interests of the litigant public would be best served if the court entertains only those cases which measure up to the significance of national or public importance.

Ø  The cases which do not raise questions of national or public significance should be finally decided by intermediate courts which are to be created by an amendment to the Constitution.

2.       Four regional or zonal Courts of Appeal must be created, that would absorb the 140 categories of cases spanning matrimonial, rent control, labour, service, land acquisition and other matters entertained by the Supreme Court today.

Ø  These cases would belong to the exclusive jurisdiction of the Courts of Appeal that would be established in the four regions of the country.

Ø   The chartered High Courts of Bombay, Calcutta and Madras, and additionally, the High Court of Delhi, could themselves well be the seats of these Courts of Appeal

1.      This would be manned by judges of the same calibre as the judges who would otherwise be elevated from the High Courts to the Supreme Court.

3.      The age of retirement of the Judges of the Courts of Appeal would be 65 as, logically, they would need to have a higher retirement age than Judges of the High Court.

Ø  Correspondingly, the age of retirement of Supreme Court Judges may have to be enhanced to 68 or even 70 years as is common in countries like Australia and Canada.

4.       The Constitution would be amended by adding Article 136A, whereby the regional Courts of Appeal would exercise the powers which were hitherto being exercised by the Supreme Court under Article 136 of the Constitution.

Ø  This means that the Courts of Appeal would finally decide all cases arising from the High Courts relating to the 140 sub-categories mentioned earlier, without any further appeal lying to the Supreme Court.

Ø   If, however, any question arises before a Court of Appeal which would fall within the newly carved-out jurisdiction of the Supreme Court as elaborated above, it would refer the same to the Supreme Court for decision.

5.       Article 32 must be omitted from the original jurisdiction of the Supreme Court.

Ø  This means that actions alleging breaches of fundamental rights would be brought before any of the Courts of Appeal instead of the Supreme Court

Ø   Supreme Court 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.

6.      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.

Structure of Court of Appeal

1.      If Courts of Appeal were to be established in each region in the precincts or the vicinity of the High Courts of Bombay, Calcutta, Delhi and Madras, litigants in these and neighbouring States would be able to access these Courts of Appeal at far less expense than if they were to travel all the way to the Supreme Court. The proximity of the Courts of Appeal would be a real boon to the common man.

2.      I would contemplate the Courts of Appeal as having 15 judges each. Judges would sit in divisions of three.

Ø  This would mean that five benches would function at all times, with the total number of judges in all four courts together being 60.

Ø  Therefore, instead of increasing the strength of the Supreme Court, one would, on the other hand, have established convenient and accessible courts in each region.

If implemented its overall effect(can be stated as opinion)

1.      Were the proposal for four regional Courts of Appeal to be accepted, I would anticipate that the Supreme Court would be left with only 1,000 to 2,000 cases involving core constitutional and other issues of national importance.

Ø  In such circumstances, I do not think the court would need more than 20 judges sitting in Benches of five dealing with both admissions and the final hearing of cases.

Ø   Judges would then have the leisure to study briefs long before coming to court.

1.      The practice of the United States Supreme Court to obtain written briefs in advance from counsel would result in judges, who are thorough with the briefs, restricting counsel to the main issues in the case.

Ø  Cases would be disposed of far more expeditiously than they are today.

Ø  I have no doubt that a newly transformed Supreme Court dealing only with constitutional cases and cases of far-reaching national importance would thereafter be able to dispose of the cases filed during a year, in the year of filing itself.

2.      Today the Supreme Court disposes of about 50,000 cases a year but falls short of the filings that year by about 3,000 to 4,000 cases.

Ø  The U.S. Supreme Court with nine judges sitting en banch is able to dispose of only 80 to 100 cases a year.

Ø  The erstwhile Judicial Committee of the House of Lords was able to dispose of only about 180 cases a year.

Ø   In the case of the Supreme Court of India,if changes are made , I am certain that it will easily be able to deal with 1,000 to 2,000 cases a year without lawyers or clients feeling that they have not been given a full and complete hearing.

3.      I believe that the time for complacency is long past. If one has to beg for a hearing date even after three or four years have elapsed after the filing of a case, and still cannot get a date within a month or two, it means the system has failed.

Ø  No other viable solution has been found so far and it does not appear that expanding the Bench by five judges to 31 would miraculously make the arrears of 50,000 cases disappear.

Ø  It is time to take bold decisions, and if we hesitate any more without finding a solution, we would have failed the nation and the litigant public.