Analysis: The Need For Permanent Constitution Bench

The Supreme Court of India will have a permanent Constitution bench. The announcement about the constitutional benches of various strengths namely - five, seven and nine-judge benches - was made by Chief Justice of India DY Chandrachud recently.

This was a long overdue legal reform and will see the Supreme Court adjudicate complex constitutional questions and interpret laws. The Constitution gives exclusive jurisdiction to the Supreme Court to deal with inter-state and Centre-state disputes and provides for interpretation of legal provisions pronounced by the Supreme Court as the law of the land. Article 145(3) stipulates hearing by a minimum of five judges for any case involving a 'substantial question of law' regarding the interpretation of the Constitution. Article 142 also provides a unique power to the Supreme Court, to do 'complete justice' between the parties, where, at times, the law or statute may not provide a remedy.

The Supreme Court also happens to be the final court of justice against the appeals of the high courts.

Over years, the Supreme Court has delivered judgements with reflective implications for society and polity. These have served as the guiding principles and precedents for delivering justice. The constitutional provisions have been interpreted much beyond their literal meanings to give justice and widen the ambit of fundamental rights.

"The creation of a permanent Constitution bench is overdue, and the idea is most welcome. The Constitution envisages two different but equally important roles for the Supreme Court: that of a constitutional court, and the other of a national court of appeal. Unfortunately, over the years, the court has rarely functioned in its full strength, and so Constitution benches had become a luxury. With 32 judges now, the court now seems to be in a position to perform both its roles efficiently," says Raju Ramachandran, senior advocate, Supreme Court.

Presently, the time of the top court is used up by PILs raising important questions of laws, human rights violations, scams etc making it impossible for the Chief Justice to disengage judges from such work and include them in the constitution bench, which would block at least five judges for a long period.

According to the data presented by the Union law ministry in parliament in July 2023, the number of cases disposed of by Supreme Court constitution benches has decreased over the decades since independence. Constitution benches disposed of 440 cases during 1950-1959 and 956 during 1960-1969. In recent years, the disposal rate has gone down tremendously. Only 71 cases were adjudicated during 2010-2019 and 19 cases during 2020-2023. There are 306 cases pending decisions before five-judge benches. The oldest case before a five-judge constitution bench has been pending for 31 years and before a seven-judge bench for 29 years. Five cases (five main and 130 connected cases) are pending before the nine-judge constitution bench. In all, 29 cases (July 2023 data) are pending before the constitution benches.

With more than 80 thousand pending cases, the Supreme Court has always been seen as people's court. It is seen over years since independence, that it is the Supreme Court that decides what official goals it wants to take up. During the tenure of some CJIs, there have been no constitution bench hearings as they prioritised people's matters over constitutional ones - deeming those to be urgent over other matters. Former Chief Justice Ranjan Gogoi had also proposed to form a permanent constitution bench in 2019. While former Chief Justice NV Ramana didn't initiate any constitution bench activity during his tenure (April 2021 to August 2022).

The pendency of cases in high courts and the Supreme Court are pointed out at every forum but the origin of the problem lies in the lower courts. More than 90 per cent of all pending cases originate from the lower courts (both district and subordinate). In many instances, high court judgements are also not satisfactory and the Supreme Court has to step in by accepting them in appeal. On bail, the Supreme Court has repeatedly observed that "the trial courts are not appreciating the ambit of its orders".

Some of the important constitutional matters before the Supreme Court are - validity of Section 6A of Citizenship Act introduced after the Assam Accord of 1985; validity of constitutional amendments to Section 334 to perpetuate reservation of seats for SCs and STs in Lok Sabha and assemblies; the correctness of the 1998 ruling giving immunity from prosecution to MPs and MLAs in vote-for-bribe scams; entry of women (of all age groups) into Sabarimala temple, mosques and agiyaris (fire temples). High-profile matters such as the constitutionality of the sedition law, and the challenge to the Union's Ordinance over 'services' in the National Capital are also there. The constitution bench of the Supreme Court recently reserved its verdict on a batch of pleas challenging the abrogation of Article 370 of the Constitution which bestowed special status on the erstwhile state of Jammu and Kashmir. Now that the permanent constitution bench has been formed one can expect hearings and pronouncement of historic judgements like in the Kesavananda Bharati case, where the 13-judge bench introduced the concept of basic structure doctrine. More constitutional benches can only ensure a diverse and wide interpretation of existing fundamental rights.

"The Supreme Court has sufficient strength now to do justice to both roles. All that is required is efficient time management, including strict time limits on oral arguments in all cases, constitutional and others," adds Mr Ramachandran.

Merely having a constitution bench would not suffice the Supreme Court's role as a Constitutional court. The way the judges hold and conduct the proceedings and their judgments thereafter, will pronounce whether the Supreme Court has been a true custodian of the Constitution. There are inherent problems, which need to be rooted out. Presently, there is no system of managing time efficiently in courts. There is no bar on the time lawyers take for arguments, no limit on the length of documents submitted - all this leads to wastage of court's time.

(Bharti Mishra Nath is a senior journalist)

Disclaimer: These are the personal opinions of the author.