This article is written by Astha Mishra*. Pendency of cases in Supreme Court

Abstract

The problem of pending cases before the apex court of the country is a well-acknowledged reality of the working process of the Supreme Court of India. With the Independence of the country in 1947 and the establishment of the judiciary in 1950, the latter still awaits its independence in the true sense. The trend of the misuse of the appellate jurisdiction of the Supreme Court has resulted in the backlog of 2 crore cases pending before it for disposal and hence demands urgent attention for a new model of reform to ease the insurmountable roadblock. The author has analyzed the models as recommended by the Law Commission of India in its 229th Report, to reduce the workload of the Supreme Court and has concluded with non-feasibility of these models, as they would lead to the evasion of the very character and spirit of the Supreme Court.

The paper analysis statistical data of the pending cases, appeals filed and dismissed by the Supreme Court and thus makes a core claim regarding the genesis of the problem i.e. the indiscriminate filing and acceptance rate of the Special Leave Petition[1] (SLP). Based upon the presumption that a huge pile of cases, appealed from the High Courts in the form of SLP are a part of the decisions of the tribunals, in addition to the provision of filing of petitions directly from the decision of the tribunal, tribunals are a major contributor to the SLP’s filed before the Supreme Court. The paper thus suggests that in order to curb the menace of indiscriminate filing of SLP’s the composition and functioning of the tribunals needs to be revisited. Thus there is a need to revisit the objective with which the tribunals were established, to reduce the piling up of cases before the Supreme Court.

Introduction

“Trash and nonsensical petitions are increasing. No. This has to stop and only this way (imposing heavy costs) it can stop. For years we have not done it. See if you have a good cause we are with you but not for such petitions which take away judicial …” Former Chief Justice of India. JS Khehar

The Supreme Court of India or rather the apex court comprising of 31 (30 judges+1 CJI) judges is the last resort for any aggrieved person to seek justice in India. It was established with the idea of being a Constitutional court tasked with the protection of fundamental rights, matters seeking either interpretation of the Constitution or involving a substantial question of law, adjudication of Centre-State and Inter-State disputes. The lower Courts and the High Courts were considered competent for a dispensation of justice. However, Supreme Court was given residuary power to grant special leave to appeal from any judgment of any Court or Tribunal in exceptional cases where there was an apparent miscarriage of justice.

But lately, it has lost its original character(of being a Constitutional Court) by a vast self-enlargement of its jurisdiction making itself a general court of appeal by routinely entertaining special leave petitions between litigants which do not involve important Constitutional issues or issues of law of general importance.

Thus the study concerns one of the thorny aspects of the Supreme Court’s appellate jurisdiction conferred under Article 136 of the Indian Constitution.[2]

The Present Crisis

The Constituent Assembly provided that the Supreme Court, like Supreme Courts in other jurisdictions, would be a small, compact court of the Chief Justice and not more than seven judges unless Parliament otherwise provided. From 1950 to about 1990, the Supreme Court generally retained this character comparable to the character of Supreme Courts in other jurisdictions. Special leave to appeal from a decision of a High Court or tribunal was sparingly given in the discretion of the Court. The composition of the Court was of benches of three judges, and five judges and, exceptionally, benches of seven judges and even 13 judges, as in the famous case of Kesavananda Bharati, decided important cases.

The latter part of the twentieth century witnessed a vast extension of government operations. This resulted in the demand of early address of grievances and thus led to the creation of various adjudicatory bodies outside the regular judicial hierarchy. These bodies functioned simultaneously with the court adjudicating disputes between the individuals and administration. As innumerable adjudicatory bodies function outside the judicial hierarchy it was extremely desirable to constitute a forum to correct misuse of power or procedural irregularities committed by such bodies. In this context the role played by the Supreme Court under Article 136 became significant.[3]

“It may, however, be pointed out that this Court was never intended to be a regular court of appeal against orders made by the High Court or the sessions court or the magistrates. It was created as an apex court for the purpose of laying down the law for the entire country and extraordinary jurisdiction for granting special leave was conferred upon it under Article 136 of the Constitution so that it could interfere whenever it found that law was not correctly enunciated by the lower courts or tribunals and it was necessary to pronounce the correct law on the subject. This extraordinary jurisdiction could also be availed by the apex court for the purpose of correcting grave miscarriage of justice, but such cases would be exceptional by their very nature. It is not every case where the apex court finds that some injustice has been done that it would grant special leave and interfere. That would be converting the apex court into a regular court of appeal and moreover, by so doing, the apex court would soon be reduced to a position where it will find itself unable to remedy any injustice at all, on account of the tremendous backlog of cases which is bound to accumulate.”[4]

Possible Models for Reducing the Workload of the Supreme Court of India

The possible models as proposed by the law commission recommends either the division of the existing Supreme Court into various benches or the setting up of cassation benches in four corners of the nation.

CONTENTION I

The 95th report of the Law Commission, 1984 proposed the setting up of a Constitutional Division and a legal division (public law, civil, criminal division) within the Supreme Court. The proposed model would lead to the bifurcation of the existing functions of the Supreme Court with different divisions catering to different functions; such a division would lead to the setting up of constitutional, public law, civil and criminal division within the Supreme Court. Thus the Constitutional Bench would deal with cases involving a substantial question of law of importance for the whole nation, cases involving interpretation of the constitutional and appeals under Article 32 and 226 of the Indian Constitution.

Argument I

1. Sir B.N. Rau, the Constitutional Advisor at the time of the framing of the Constitution met Justice Felix Frankfurter of the U.S. Supreme Court, he was advised by Justice Frankfurter that the Supreme Court should sit en banc so as to lend finality and authoritativeness to its judgment, also that the jurisdiction exercisable by the Supreme Court should be exercised by the full court and thus the highest court of appeal should avoid sitting in divisions. This would further ensure that there is uniformity while deciding the substantial question of law and thus avoid conflicting opinions on the same point of law by different benches.

The Drafting Committee of the Indian Constitution adopted the practice in the U.S. Supreme Court of not sitting in divisions (while the same is not completely adopted as generally Supreme Court benches are of 2-3 judges) and how the judges of the Supreme Court of the U.S. attached the greatest importance to this practice.

CONTENTION II

Article 130[5] of the Indian Constitution administers the seat of the apex court i.e. Supreme Court of India. The said provision empowers the Chief Justice, with the approval of the president to appoint any place other than Delhi where Supreme Court shall sit. This signifies that the founding fathers contemplated the creation of multiple benches of the Supreme Court. Thus there has been a demand to set up four cassation benches in Delhi, Kolkata, Mumbai and Chennai/Hyderabad along with a Constitutional bench at Supreme Court at Delhi. Further, a court of cassation is the judicial court of last resort and has the power to quash or reverse decisions of the inferior courts and thus would reduce the backlog of cases.

Argument I

That it would facilitate justice to the poor section and to those who are physically disabled, who are unable to be bear the cost or cannot approach the Supreme Court that sits in Delhi.

Counter Argument I

1. The Law Commission of India in its 125th report had said: “The Supreme Court sits in Delhi alone. As quoted by Chief Justice of India K.G. Balakrishnan “Most people and those associated with the Supreme Court feel that once the Supreme Court sits elsewhere the identity of the institution is lost.” The mere reason why the provision was incorporated in the Constitution was for the ease of the movement of the Supreme Court if there was a change in the place of the capital of India.[6]
2. If the Supreme Court had followed its own prescribed principles in the application of Article 136, that is, utilizing Article 136 in rare and exceptional cases, the High Courts of various states would in most cases be the last court for the large majority of litigants as the Supreme Court would only focus on the most important cases and steer the legal interpretation process of the country. In such a scenario, there would never have been any debate for or even a need for four regional appellate courts over the existing High Courts. It appears to be only an ad hoc measure to cure the malady of pending cases before the Supreme Court.

• In terms of a principle, it needlessly adds one more stage to the hierarchy amongst the judiciary already embedded in the Constitution thus delaying the process of justice. The High Court along with the Supreme Court are courts of record (See, Articles 129 and 215 of the Constitution) and are considered as superior courts. The role envisaged by the regional Supreme Courts should be fulfilled by the High Courts.

Thus both the models to reduce the workload of the Supreme Court appear to be not feasible. The concept of dividing the Supreme Court suffers from the serious malady. A system of this nature may lead to the creation of an informal hierarchy amongst the judges of the Supreme Court, a situation which is highly undesirable and which may pose a threat to the unity and solidarity of the judges of the highest court of the land.

Statistical Data Analysis of the Workload

“Sometimes, we judges feel that when a case comes before us and we find that injustice has been done, how can we shut our eyes to it. But the answer to this anguished query is that the judges of the apex court may not shut their eyes to injustice but they must equally not keep their eyes too wide open, otherwise the apex court would not be able to perform the high and noble role which it was intended to perform according to the faith of the Constitution makers.” Former Chief Justice of India –P.N. Bhagwati

From the data available on the Supreme Court website, for 46,740 cases in 2014, broken down by case type as follows: Table 1. Number of case details collected by case type in the Supreme Court-

Type	Total
SLP (civil)	22,018
SLP (criminal)	9,223
Civil appeals	7,290
Review petitions (civil)	2,136
Criminal appeals	2,044
Transfer petitions (civil)	1,683
Writs (civil)	1,045
Review petitions (criminal)	684
Transfer petitions (criminal)	398
Writs (criminal)	219
TOTAL	46,740

These figures do not represent the total number cases filed in each category since civil appeals of 2014 include Special Leave Petitions(SLP) where “leave” has been granted, and which are therefore not fresh matters and thus it implies that the number of SLP is far more than anticipated.

Table 2: Number of fresh cases filed in the Supreme Court in 2014 by case type:

Type	Total
SLP (civil)	22,018
SLP (criminal)	9,222
Civil appeals	1,470
Review petitions (civil)	2,135
Criminal appeals	78
Transfer petitions (civil)	1,682
Writs (civil)	1,044
Review petitions (criminal)	683
Transfer petitions (criminal)	397
Writs (criminal)	219
TOTAL	38,948

*Since the data in each of these categories were collected between September and November, 2015, the pendency figures may have changed subsequently.

Table 3: Pendency of cases for which data was collected (as of November, 2015)

Category	Pending	Disposed	Total
SLP (civil)	7,129	14,888	22,018
SLP (criminal)	1,739	7,483	9,223
Civil appeals	2,182	5,107	7,290
Review petitions (civil)	96	2,039	2,136
Criminal appeals	813	1,230	2,044
Transfer petitions (civil)	436	1,246	1,683
Writs (civil)	262	782	1,045
Review petitions (criminal)	34	649	684
Transfer petitions (criminal)	74	323	398
Writs (criminal)	36	183	219
TOTAL	12,801	33,930	46,740

Circumspect Usage of the Jurisdiction Under Article 136

One of the persistent myths that Supreme Court advocates and practitioners hold on to is that the Supreme Court dismisses a vast majority of SLPs (usually in the range of 80-90%). The number of SLPs, both criminal and civil, vastly outstrips the numbers of civil and criminal writ petitions. Whereas 33,357 SLPs were filed over the course of 2014, only 1,287 Writ Petitions were filed in the same time period. Thus, while SLPs accounted for 67.44% or more than two-thirds of the cases filed in the Supreme Court, Writ Petitions accounted for only 2.6% of the cases filed in the Supreme Court.[7]

Interestingly, the Supreme Court is as likely to hear an SLP in detail as it is a Writ Petition and thus consumes a lot of time of the Supreme Court even if they are eventually dismissed. From the above available data, it is quite evident that the major contributor to the SC’s docket is SLP.[8]

Reference of Tribunals in Article 136 of the Indian Constitution

As the case has been, there is a huge pile of SLP’s pending before the apex court and is a major contributor to the backlog of cases. Article 136 reads thus:

“ Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.”

Based upon the judgment delivered by the Supreme Court in L. Chandra Kumar v.UOI,[9] it is presumed that a huge pile of cases, appealed from the High Courts in the form of SLP are a part of the decisions of the tribunals, in addition to the provision of filing of petitions directly from the decision of the tribunal, tribunals are a major contributor to the SLP’s filed before the Supreme Court.

Establishment of Tribunals in India

A vast extension of governmental operations occurred in the twentieth century. This resulted in disputes needing adjudication which led to the creation of various adjudicatory bodies outside the regular judicial hierarchy. Side by side with courts these bodies carried on adjudicatory functions and powers conferred by legislation to adjudicate disputes between individuals inter se, or between individuals and administration thus resulting in the government of India to be one of the parties in almost all cases.

In India, innumerable Tribunals have been set up from time to time both at the centre and the states, covering various areas of activities like trade, industry, banking, taxation etc. The question of the establishment of Tribunals was to provide speedy and inexpensive relief to the government employees relating to grievances on recruitment and other conditions of service. Due to their heavy preoccupation, long pending and the backlog of cases, costs involved and time factors, Judicial Courts could not offer the much-needed remedy to the government servants, in their disputes with the government. The dissatisfaction among the employees, irrespective of the class, category or group to which they belong, resulted in the establishment of the tribunals.

Advantages of the tribunals are as follows-

• Appropriate and effective justice.
• Flexibility
• Speedy – It is interesting to note that a case is disposed by administrative tribunal only within two years. The High Court may take three years to dispose of the appeal. The Supreme Court may take another three years for disposal of the appeal. The minimum period for disposal of a case thus becomes eight to ten years. By that time either the employee might have retired from service or the case becomes infructuous. Moreover, the Court may also remand the matter for fresh disposal to the tribunal.
• Less expensive

Limitations of the Tribunals are as follows-

• A Tribunal has the same jurisdiction, powers, and authority, as those exercised by the High Court, in respect of “Contempt of itself” that is, punish for contempt, and for the purpose, the provisions of the contempt of Courts Act 1971 have been made applicable. This helps the Tribunals in ensuring that they are taken seriously and their orders are not ignored.

Technical Flaws in the Functioning of Tribunals

Section 14(1) of the Administrative Tribunal Act vests the Central Administrative Tribunal to exercise all the jurisdiction, powers and authority exercisable by all the courts except the Supreme Court of India under Article 136 of the Constitution. Thus implying that they are equally capable of rendering a fair judgment.

What is being proposed is setting up a hierarchy of tribunals so that neither they are abolished by the state governments as a mere unnecessary tier, eventually increasing the workload of the High Court nor do they lead to the frivolous filing of appeals in the Supreme Court.

A decision rendered by the tribunal was appealable –either in the Supreme Court or in the High Court. After the Supreme Court rendered its judgment in L. Chandra Kumar’s case[10] the position was cleared and it was held by a bench compromising of seven judges that the decision of a tribunal was appealable before a division bench of the High court before an appellant approached the Supreme Court. But this alternative remedy available to the appellant may be waived by him and under exceptional cases of gross injustice Supreme Court may on its discretion entertain the appeal as a Special leave petition. This led to two repercussions-

1. After the said judgment was delivered the decision of the tribunals were challenged in the respective High Courts. This led to the abolition of many tribunals by the respective state governments as it was reasoned that the very objective behind the establishment of administrative tribunals is defeated if all cases adjudicated by them have to go before concerned High Courts and thus it merely added one more tier in the judicial hierarchy and led to the delay of justice.

Another repercussion of the L. Chandra Kumar’s case was that it added to the backlog of cases in the High Courts, which already were working under pressure. Though a tribunal has similar power as to those guaranteed under the Constitution to the High Court’s yet subjecting them to the High Courts and thus undermining their authority frustrated the functioning and the purpose of their establishment.

1. Secondly, an appeal would lie in the Supreme Court of India under Article 136 challenging the decision of the tribunals. This has made the apex court an ordinary court of regular appeal thus adding to their workload and the number of pending cases. Though Supreme Court under Article 136, has jurisdiction over the decisions of the Tribunals, as a matter of right, no person can appeal to the Supreme Court. It is discretionary with the Supreme Court to grant or not to grant special leave to appeal but this discretion is being exercised in far too many cases.

Reforms That Need to be Introduced to Curb the Menace

1. The tribunal consists of members and heads that may not possess any background of law. Hence it was recommended that it shall be manned by a retired Chief Justice of a High Court or a retired Judge of the Supreme Court of India.[11]
2. One of the main features of the Indian Constitution is judicial review. There is a hierarchy of courts for the enforcement of legal and constitutional rights. One can appeal against the decision of one court to another, like from District Court to the High Court and then finally to the Supreme Court, but there is no such hierarchy of Administrative Tribunals and regarding adjudication of service matters, one would have a remedy only before one of the Tribunals. This is in contrast to the French system of administrative courts, where there is a hierarchy of administrative courts and one can appeal from one administrative court to another. But in India, with regard to decisions of the Tribunals, one cannot appeal to an Appellate Tribunal.

• An appeal on substantial questions of law and fact may lie to the proposed Appellate forum, against the decision of the Central Administrative Tribunal. An appeal may lie against the decision of the proposed appellate forum to the Supreme Court. When a right to appeal is contemplated to the Supreme Court against the decision of the proposed Appellate Administrative Tribunal, one cannot have recourse to the writ jurisdiction of the High Court under Article 226/227 of the Constitution.[12]

1. Tribunals do not rely on uniform precedence and hence may lead to the arbitrary and inconsistent decision.

Therefore for the proper functioning of the tribunals, these loopholes need to be amended so that in turn it can lead to the lessening of the burden, via Article 136, on the Supreme Court. These disparities have led to the situation where a large no. of SLP’s is being filed before the SC.

Conclusion

The thorny aspect of the functioning of the Supreme Court in granting and entertaining Special leave has to lead to a huge pile of pending cases before it. This has further delayed the process of justice and made it more extensive. The idea with which administrative tribunals were established is gradually fading away. The non-obstante clause of the Article 136[13] makes it special by making it illimitable by other provisions in the chapter.[14]

Though the Court agrees that appellate jurisdiction under Article 136 cannot be whittled down by any statutory provisions, the Supreme Court itself has limited it’s the jurisdiction in L. Chandrakumar v. The Union of India.[15] The reason for such negation is that an appeal by special leave is too costly and inaccessible and the docket of the Supreme Court is crowded with decisions of tribunals that are challenged on relatively trivial grounds and it is forced to perform the role of a first appellate court[16]. Thus the Court has overburdened the High Courts with appeals from various tribunals and defeated the very purpose for which the tribunals constituted. The power under Article 136 is a basic feature of the Constitution. Such an extensive appellate power in respect of tribunals exists in no other comparable jurisdiction.[17] In this context, it has become necessary to analyze the exercise of the jurisdiction while admitting and hearing the appeals directly from tribunals and the need for making the tribunals more effective.

References

*III Year, National University of Study and Research in Law, Ranchi. The author can be reached at [email protected]

[1] Herein referred as SLP.

[2] Article 136 reads thus:

(1) Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, and sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

[3] See M.P Jain. Supra n. 5 at 239.

[4] See, e.g., Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214, 244. See also Bihar Legal Support Society v. Chief Justice of India, (1986) 4 SCC 767.

[5]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.

[6] V.N. Shukla,Constitution of India p 268.

[7] See Nick Robinson, Supreme Court Quantitative Analysis, A Quantitative Analysis of the Indian Supreme Court’s Workload, December 13, 2012, Journal of Empirical legal Studies, available at <SSRN:hhtp://ssm.com/abstact=2189181 or http://dx.doi.org/10.2139/ssm.2189181>(“ Nick Robinson Quantitative Analysis”); p.15 of the consultation paper.

[8] http://www.vidhilegalpolicy.in,2016, ADDRESSING ISSUES OF BACKLOG AND REGIONAL DISPARITIES IN ACCESS, TOWARDS AN EFFICIENT AND EFFECTIVE SUPREME COURT, by Vidhi –centre for legal study.

[9] L. Chandra Kumar Vs UOI (AIR 1997 SC 1125). The judgment laid down that before approaching the Supreme Court an appeal from the decision of the tribunal shall lay to the division bench of the respective High Court. No appeal would lie directly to the Supreme Court under Article 136 of the Indian Constitution.

[10] L. Chandra Kumar Vs UOI (AIR 1997 SC 1125).

[11] 162nd Law Commission Report (1998) on a review of functions of Central Administrative Tribunal and Income Tax Appellate Tribunal.

[12] Ibid.

[13] Article 136 begins with the non-obstante clause, viz. “Notwithstanding anything in this chapter” which means all the provisions in Chapter IV, part V of the Constitution.

[14] Ibid.

[15] AIR 1997 SC 1125, In L.. Chandrakumar, the Court declared cl. 2(d) of Article 323A and 3(d) of 323B of the Constitution unconstitutional compelling the aggrieved party to approach the division bench of High Court under Articles 226/227 and from there to the Supreme Court under Article 136 thus restricting the scope of Article 136 to approach the Court directly from the orders of tribunals which was vested in it by the Constitution.

[16] 32 Ibid. at 1154, Tribunals are special courts and presiding officers are experts in certain jurisdictions.The primary reason for the creation of tribunals is the lack of expertise of judges of ordinary courts. On this very reason, L. Chandra Kumar is suspect and ought to be rejected.

[17] The Supreme Court of Canada has wide powers, including the power to grant special leave to appeal. But it seems that the jurisdiction as regards tribunals is available only in respect of certain specified categories. See J. Noel Lyon and Ronald G. Atkey (eds.), Canadian Constitutional Law in A Modern Perspective (2nd ed., 1970), p. 287.The Privy Council has the power to grant special leave to appeal from ‘any judgments, sentences, decrees or orders’ or ‘any court of justice within any British colony or possession’ under Section I of Judicial Committee Act, 1844. But its jurisdiction could be taken away by express words or necessary intendment in a statute. See Theberge v. Laudry (1878) 2 App. Case. 102. Moreover, Privy Council seldom exercises the power. See Senanayake v. Navaratna, (1954) 2 All E. R.805 (election appeal). For the view that special leave to appeal will not be granted from the decision of a statutory tribunal if it was never the intention to create a tribunal with the ordinary incident of appeal to the Crown, See Halsbury’s laws of England (1V edn.) vol. 10, p. 3s65.