Being a constitutional court

The last few weeks have given the Supreme Court of India the aura of a constitutional court. A five-judge bench headed by the Chief Justice is hearing the Ayodhya case in Court No 1 and a decision is expected soon. Next month, another bench is scheduled to start hearing challenges to the abrogation of Article 370 of the Constitution related to Jammu and Kashmir. If this trend of disposing of constitutionally high profile cases one after the other is kept up, many dog-eared files will disappear from the scores of almirahs that block the corridors of the court building. 

The political climate might have something to do with this expeditious hearing of sensitive cases; some would point to the retirement of the Chief Justice in November. Whatever be the reason, short hearings of constitutional cases should be the norm for the future. The Ayodhya case has shown that it is possible to decide complex issues within a time frame. There are nearly 20,000 pages of documents in eight different languages, painstakingly translated into English. Still the case will conclude in two months. In contrast, the celebrated Kesavananda Bharati took seven months and the three Judges Appointments cases took four months each. The US Supreme Court allows only half an hour each to opposite sides. Then a red light blinks.

The present judges have the advantages of computers — AI in waiting — and assistance of interns to deliver judgments faster. There is a research wing, in theory. Therefore, constitutional cases should not rumble along like in the olden times.

When the court was shifted to the present building in 1958, there were only eight judges sitting together in one hall. They decided constitutional cases without undue delay. Now the sanctioned strength of judges has risen to 34 and 30 of them are sitting in 14 halls. This is an unprecedented opportunity to clear some of the old constitution bench matters.

The task is of course formidable. There are more than 250 Constitution matters that have been referred to benches of five judges. Some of them were ready for a final hearing since 1992. The questions involved are very complex, like the right to property after constitutional amendments going back to the days of the 1975 Emergency and definition of industry in the Industrial Disputes Act. Then there are 11 cases referred to benches of seven judges dealing with, among other things, legislative privileges versus freedom of the media. Benches consisting of nine judges have to decide 132 issues. Therefore it is imperative to have a Constitution bench functioning all the time. With the present strength of judges it is not impossible.

There are several jurists who argue that the Supreme Court should hear only substantial questions of law involving interpretation of the statute. In the last few weeks the judgments delivered were mostly in old cases dealing with partition, promotions, tenancy or common offences like false weights and measures or food adulteration in hotels. These could be disposed of by an appellate court without burdening the Supreme Court. That would require some constitutional amendments. However, it is not difficult in the present circumstances. After all, our Constitution has been changed about 125 times and is the most amended one in the democratic world.

One of the advantages of setting up appellate courts, separate from the Supreme Court, is that such courts could be set up in other parts of the country. It is the persistent grievance of litigants from the south or north-east that carrying appeals to the Supreme Court is expensive and tedious. Many of them abandon their legitimate rights just because of geographical distances. Judges have consistently rebuffed the idea though several Law Commission reports had recommended it. Their argument is that the Supreme Court will lose its unitary character. But taking away the appellate jurisdiction in ordinary matters and keeping only constitutional questions to themselves would improve the performance of the court. It will also add to the dignity of the court. Instead of stalling these reforms, the judges themselves should initiate them. Meanwhile, they should set up a permanent Constitution bench in the Supreme Court; not when political pressure becomes unbearable.