The Hindu : Bifurcation of the Supreme Court

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Thursday, May 29, 2003

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Bifurcation of the Supreme Court

By K. T. Thomas

In the same manner as Parliament, the Supreme Court has acquired majesty while retaining its homogeneity and reflecting the uniqueness of India's unity.

THERE ARE reports that the Parliamentary Standing Committee on Home Affairs has criticised the Supreme Court for rejecting the demand to set up regional Benches. The Standing Committee has reportedly decided to request the Chief Justice of India (CJI) to reconsider.

It is heartening to note that the Standing Committee was apprised of the fact that a full court of all judges of the Supreme Court unanimously reiterated its earlier stand that such Benches would impair the unity and integrity of the country and found no justification for deviating from it.

I was one of the judges of the Supreme Court when it on two different occasions considered the matter. On both occasions, the judges after detailed discussion unanimously decided against bifurcating the Supreme Court.

eI could not support the plea that a Bench of the Supreme Court should be set up in South India despite my own home being in the southernmost State. None of the judges from the southern States favoured setting up of Benches at other places.

The Parliamentary Committee is reported to have disapproved the reasoning of the judges that setting up of the regional benches would impair the unity and integrity of the court.

The only reason advanced in favour of such Benches is that they would provide "people of the far-flung areas to get access to the apex court". No statesman shall decide on such a vital issue as bifurcation of the nation's apex judicial institution merely on the ground of a solitary advantage.

Statesmanship requires that all the pros and cons, all the merits and demerits, particularly of a vital issue should be weighed in the balance before a decision is taken. Article 130 of the Constitution declares that "The Supreme Court shall sit in Delhi or in such other place or places, as the CJI may, with the approval of the President, from time to time appoint". Thus it is not necessary that the seat of the Supreme Court shall be at Delhi. It could be in Hyderabad or Kolkata or Mumbai or Chennai or Bangalore or even Kochi.

In the absence of such a provision, the Supreme Court could have become dysfunctional in an emergency situation when it could not operate at Delhi due to any foreseen or unforeseen eventualities.

During our discussion, I said that I did not mind the Supreme Court being set up at any place in the south or any centrally placed location, but I am unable to conceive a Supreme Court of India scattered in different parts of the country.

The Constitution provides singular office for a number of vital functions of the nation. Article 52 stipulates that there shall be one President of India, Article 63 allows only one Vice-President of India, and Article 74 envisages only one Prime Minister for the whole nation. Article 124 declares that there shall be only one CJI.

Article 148 contemplates only one Comptroller and Auditor-General of India. Article 76 enjoins that there shall be only one Attorney-General for India.

There was a proposal to appoint Additional Attorneys-General, but the Central Government accepted the legal opinion tendered by M.C. Setalwad, India's first Attorney-General and a great jurist, that the said constitutional post cannot be and shall not be multiplied.

Article 141 mandates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. Article 142 conferred special power on the Supreme Court to make such order as is necessary for doing complete justice in any cause pending before it. Article 141 directs that all civil and judicial authorities shall act in aid of the Supreme Court.

The above survey portrays how the Constitution-makers conceived of a singular edifice for the Supreme Court. The Bar of the Supreme Court grew and developed and has now been crystallised into one homogenous unit. There is only one Supreme Court Advocates Association and only one Supreme Court Advocates-on-Record Association.

Thus, in the same manner as Parliament, the Supreme Court has acquired majesty while retaining its homogeneity and reflecting the uniqueness of India's unity. All the judges of the Supreme Court meet together every morning, they exchange their views together (except matters pending judicial decisions) and thus they endeavour to maintain the special uniqueness of the institution.

What might happen if the Supreme Court has other Benches, at least in all the four zones of India, should be a matter of serious concern for the people. The Supreme Court of Pakistan having several Benches resulted in utter confusion and chaos, particularly on an issue concerning a former Prime Minister, Nawaz Sharif; one Bench overruled the orders of another and this resulted in a competition to prove which was mightier.

The Supreme Court was established soon after the integration of different States into the Union of India followed by the great event of adopting the Constitution. That was a time when different States could have claimed that Benches of the Supreme Court be established at least at zonal levels. That was a time when reaching Delhi was an uphill task for citizens from far-flung zones.

Fifty years have elapsed, during which time the Supreme Court has functioned very efficiently while retaining its seat in the national capital itself. Now Delhi is also much more accessible. Communication with Supreme Court lawyers has become much easier and cheaper with modern technology. Large numbers of lawyers from different States now practise in the Supreme Court. So why apply pressure to fracture India's majestic acme judicial institution.

The Constitution has conferred the widest powers on the High Courts, even greater powers than the Supreme Court itself, in the matter of entertaining the grievances of the litigants. Article 226 was incorporated with that objective. The Supreme Court was shaped mainly for making uniform the law laid down by different High Courts at different times. The Constitution did not intend to make the Supreme Court a court of appeal.

It was with all the above reasoning that the Supreme Court time and again disfavoured bifurcation. The decision was taken by the Supreme Court equipped with the advantage of the views of judges drawn from all the zones of India. They had the added advantage of not being influenced by the thought of appeasing the voters.

(The writer is a former Judge of the Supreme Court.)

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