Around 750 cases involving complicated issues of law or
interpretation of statutory provisions have been pending before
the Supreme Court's constitution bench years, causing concern
among jurists who suggest urgent steps to clear the backlog that
may otherwise take a decade.
Senior lawyers point out that the constitution bench of five or
more judges sits for a few days every year and disposes of a
select number of cases, leaving the remaining matters pending. As
a result, cases referred by apex court benches for adjudication by
larger benches keep piling up.
Going by the present norms, lawyers feel that it might take at
least another decade or so to clear the existing backlog, leave
alone the fresh cases that may land before the constitution bench
in coming years.
Legal experts say that the very object of referring complicated
cases involving points of law to the constitution bench gets
defeated by such an inordinate delay.
"If the constitution bench is not constituted for hearing the
cases requiring clarity on law, then there is no point in making
such references," a senior counsel, who did not wish to be
identified, told IANS.
The problem gets compounded as different benches of the apex court
often do not accept one another's rulings on points of law. Every
year there are a number of cases where on the same question there
are two different judgements which require to be reconciled by a
larger bench, he said.
Between 2000 and 2010, on an average, 10 larger benches were set
up annually to decide issues of interpretation of constitutional
provisions or questions of law. In the 1960s, about 100 or so
sittings of such benches took place annually.
Former Patna High Court chief justice Nagendra Rai, eminent jurist
K.K. Venugopal and former additional solicitor general Amarendra
Saran are unanimous that conflicting verdicts delivered by
different benches of the apex court were a major contributor to
the long list of pending cases that need hearing by a larger or
One reason for this, they believe, was that the different benches
of the apex court were delivering verdicts allowing judges'
subjectivity to outweigh the question of law involved in a case.
Venugopal said that there were instances where different benches
of the apex court had given different verdicts on identical
Counsel said there was an element of subjectivity in the decision
making by courts, thereby making them "different and inconsistent"
with one another.
Saran said: "All these conflicting judgments are referred to
larger benches so that they could be reconciled and harmonised and
a correct law could be laid down."
Apart from conflicting verdicts, the burden of cases in the apex
court too was responsible for the backlog of cases requiring
referral to larger benches, he said.
"When I came to the Supreme Court in 1980 there used to be only
8,000 special leave petitions annually, but today their number is
40,000," Saran told IANS.
He said not all bail matters should come up before the apex court.
"I strongly believe that except in murder cases, there should not
be any denial of per-trial bail," said Saran.
Nagendra Rai, who is also a senior practising lawyer in the apex
court, said there should be consistency in the application of law
and judges must subscribe to "judicial discipline, decorum and
decency by respecting the views of other brother judges".
"There should not be any inconsistency in the application of law
by different judges," Rai said.
In a diametrically opposite view, senior counsel Raju Ramachandran
said that "one judge disagreeing with another judge is something
that can't be avoided".
In fact, that was good for the growth and evolution of law and
could not be termed as a problem, he said.
Ramachandran said that establishing a permanent constitution bench
to hear such matters was necessary to melt the backlog of cases
requiring hearing by the larger bench.
"According to me, there must be a permanent constitution bench and
now with the increased (apex court) strength of 30 judges plus the
chief Justice, there is no reason why there should not be a
permanent constitution bench," he said.
He said that instead of sitting just for two days, Tuesday and
Wednesday, in a week the constitution bench should sit on all five
days from Monday to Friday.
(Parmod Kumar can be contacted at firstname.lastname@example.org)