Shortage of judges, inadequate infrastructure and resource constraints are perennial problems of the judiciary. However, what has led to judicial lamentation in recent times is the question whether too much of the Supreme Court’s valuable time is consumed by mundane cases involving nothing more than the rights and interests of rival parties.
Concerned about the large number of civil and criminal cases, apart from appeals from various tribunals and authorities, pending before it, a two-judge Bench has flagged the issue once again by observing that “routine appeals may result in the obstruction of the constitutional role assigned to the highest court”.
There are two separate reasons why the Supreme Court is bogged down by routine litigation: the first is the tendency among litigants to seek special leave to appeal against any order or decision of the high courts and tribunals; the second is the provision for statutory appeals against orders of various tribunals.
For instance, the Electricity Act, 2003, and the Telecom Regulatory Authority of India (Amendment) Act, 2000, provide for direct appeals to the Supreme Court against orders of appellate tribunals. The court has asked the Law Commission to examine whether allowing such direct statutory appeals is affecting its primary role.
Part of the blame has to be borne by the judges of the Supreme Court themselves. The power to grant special leave is one that is meant to be used sparingly; in practice it is used much too liberally. This has an impact on the time and number of judges devoted to hearing matters of constitutional importance.
In recent times, it is a matter of regret that some major decisions involving interpretation of the Constitution were delivered by two-judge Benches, whereas such significant questions ought to have been decided by at least a five-judge Bench.
The verdict reversing the Delhi High Court decriminalising homosexuality and the judgment upholding criminal defamation are two examples. The court’s concern also extends to laws ousting the jurisdiction of high courts by the establishment of various tribunals. Such provisions result in the Supreme Court being the first appellate court. The Law Commission in its 229th Report suggested having a Constitution Bench in Delhi, with four ‘Cassation Benches’ in different regions.
Whatever the solution that finds eventual acceptability, there is little doubt that the public will continue to rely on the Supreme Court to play a dual role — as a constitutional court that decides questions of national importance, and as the final arbiter of all disputes.