This piece is a part of TNM's reader-funded Cooperative Federalism Project. Indian residents can support the project here, and NRIs, please click here.
For Karnataka-based activist SR Hiremath, it has not been easy to take on one of the most influential politicians in Karnataka over illegal mining. In 2007, when he filed a case against mining baron G Janardhana Reddy, there were monthly hearings in Delhi, requiring Hiremath to travel to the national capital from Bengaluru frequently. The stress and the cumbersome nature of a prolonged legal battle aside, the to and fro trips added to mounting expenses.
"The trial started in the middle of 2008, and I started travelling to Delhi at least once in two months. Then, the frequency increased as the case trial proceeded. I used to go once in one-and-a-half months till 2010. In 2011, I started going every month and this continued till April 18, 2013. The follow-up of the case is still continuing even today, so I have to go once every three months for rehabilitation and reclamation hearings. I have made many, many trips. It would have been easier if there was a Supreme Court bench in Bengaluru, or Chennai, or anywhere nearby," Hiremath tells TNM.
It was cases like these that led Rajya Sabha MP from the DMK, P Wilson, to move a Private Member Bill in the Parliament asking for regional benches of the Supreme Court in India to be set up, last year. In July 2021, he introduced the Constitution (Amendment) Bill, 2020 as a Private Member Bill, again.
“I have introduced a bill in Parliament, wherein, I have asked for amendments — substitution of Article 130 — wherein I wanted permanent regional benches [of the Supreme Court] to be introduced. One constituent bench at Delhi, the existing Supreme Court will be the constitution bench, one regional bench at Delhi, one at Mumbai, one at Chennai and one other one in Calcutta. The Chief Justice can decide which is of constitutional importance, take those cases and post it before the constitutional bench. The judges who are from the regional areas can serve in that regional Supreme Court. That is the idea behind these regional beaches,” the DMK MP, who has served as an Additional Solicitor General from 2008 to 2011, tells TNM.
This demand is not new, but has come back into focus in the recent past. Two months ago, Bar Associations from the southern high courts reached out to the President and the Chief Justice of India NV Ramana, and submitted an affidavit seeking regional benches. On September 6 this year, DMK MP P Wilson also paid a visit to Union Law Minister Kiren Rijiju, seeking the Union government’s support for his Private Member Bill in the Parliament asking for four separate permanent regional benches of the Supreme Court.
In his letter, the DMK MP has said that there is an urgent need for the setting up permanent regional benches of the Supreme Court and has proposed one each in Delhi, Chennai, Mumbai and Kolkata for the North, South, West and East zones, respectively, and the existing Supreme Court can continue to function from a Constitution Bench at Delhi. He cited Article 130 of the Constitution for the same — which says, “The Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.”
“Access to justice is a fundamental right granted under the Constitution of India. Article 130 permits the Chief Justice of the Supreme Court, in consultation with the President of India, to have the benches of the Supreme Court. But even after 71 years since the Constitution came into force, this Article 130 of the Constitution is not being used,” P Wilson tells TNM.
When the Constitution was drafted, the makers gave Indian citizens the right to move the Supreme Court under Article 32. This means each and every person in India has the right to approach the Supreme Court for justice.
“Access to justice is a fundamental right enshrined under our Constitution. The framers of our Constitution considered this right to be so sacrosanct that they enacted Article 32 — a direct access to the highest court of the land to enforce fundamental rights. More so, the fundamental duty of the state is to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities,” the DMK MP said in his letter to Union Law Minister Rijiju.
But, this Article 32, which was meant to ensure accessible justice to India’s citizens, is only applicable to the highest court, and in most cases, the Supreme Court remains out of reach for many citizens in India.
“When the Constitution makers brought in this Article 32, Dr Ambedkar said that ‘it is the heart and soul of the Constitution.’ But this Article 32 is available only in the Supreme Court. This heart and soul of the Constitution has to be delivered, at least, at the regional areas,” P Wilson says.
It’s very difficult for someone who lives miles away from the Supreme Court to keep presenting themselves before the Supreme Court, explains P Wilson.
SR Hiremath’s case, for example, had to spend around Rs 2,000 for a one-way train ticket every time he had to travel to Delhi for his case hearings in the apex court. This means that over eight years, he has had to shell out at least Rs 6,000 per hearing, including accommodation and transport expenses. “I used to spend each minute of my train journey in research, so I did not end up wasting any time. But many people may not be able to do that,” says Hiremath.
So, in India, only those people who can afford frequent trips to Delhi end up pursuing a case to justice.
“One who will have to travel all the way from Kanyakumari to Delhi may not go to the Supreme Court to vindicate their grievance either by way of an appeal or under Article 32, because for them, money matters. So, they lose their right of appeal in cases where their opponent is affluent and can make it to the Supreme Court. Whereas this person will have to stop at the high court,” Hiremath adds.
This piece is a part of TNM's reader-funded Cooperative Federalism Project. Indian residents can support the project here, and NRIs, please click here.
Even the lawyers of the parties, who are well-versed with the facts of the case, who have been with the case right from the lower court until high court, are not able to go to the Supreme Court, perhaps because the client is not in a position to afford their travel and accommodation expenses.
This means a significant portion of the Indian population – who often tend to be from the socio-economically backward communities – have to accept a high court’s orders as they do not have the means to travel to Delhi to appeal against an unfavourable verdict. There is also an unfair geographical disadvantage that those living away from Delhi face, which, P Wilson points out, is reflected in data from the Supreme Court as well. There are more pending cases from states which are located closer to the Supreme Court such as Punjab, Haryana and Uttar Pradesh. “However, if you look at Tamil Nadu cases in the Supreme Court, it is 1%. The cost factor affects access to justice in this way too,” the MP said.
In 2020, when the DMK MP had written to the then Union Law Minister Ravi Shankar Prasad asking him that four regional benches of the Supreme Court be set up, the Law Minister had cited the 2010 judgment of the Supreme Court, which had turned down a similar request. A full court of the Supreme Court on the administrative side, headed by Chief Justice of India KG Balakrishnan, had turned down a plea seeking regional benches, and had said that dividing the Supreme Court would ‘break its unitary character.’
But this argument has been contested many times, given that even high courts have multiple benches.
“Courts are meant for litigants. You cannot use this unitary character argument for everything; how far will you take it? Many high courts have multiple benches, like Karnataka, UP, and Maharashtra. Has the unitary character of these high courts been affected?” P Wilson retorts.
It’s not just the DMK MP who has recommended regional benches of the Supreme Court in India. The Standing Committees of the Indian Parliament had recommended the setting up of regional benches at least four times — in 2004, 2005, 2006 and 2008. Even the 107th report of the Parliamentary Standing Committee, tabled in March 2021, had recommended the same.
In 2009, the Law Commission had released a detailed reported, recommending four regional benches of the Supreme Court – Cassation Benches for the northern region/zone at Delhi, the southern region/zone at Chennai/Hyderabad, the eastern region/zone at Kolkata and the western region/zone at Mumbai – to deal with all appellate work arising out of the orders and judgments of the high courts of the particular region. A court of cassation is the judicial court of last resort and has power to quash (‘casser’ in French) or reverse decisions of lower courts.
“If Article 130 is liberally interpreted, no constitutional amendment may be required for the purpose of setting up of Cassation Benches in four regions and a Constitution Bench at Delhi. If it is found that article 130 of the Constitution cannot be stretched to make it possible to implement the above recommendations, Parliament should enact a suitable legislation or constitutional amendment for this purpose,” the report said.
In July 2021, Bar Councils in the south submitted a representation to the Chief Justice of India as well as the Vice President, seeking that a Supreme Court bench be set up in south India. But the Union government has not responded to it yet, and if at all it has, it has always stuck to the ‘unitary character’ judgment of the Supreme Court.
In most cases filed in India, the last stage of appeal usually is the Supreme Court. Besides this, new cases are also sometimes directly filed in the Supreme Court. And naturally, the pending cases in the apex court are rising, even though steps are being taken to fill up vacancies. As of September 4, there are at least 69,956 cases still pending in the Supreme Court.
To help with this, Attorney General KK Venugopal mooted the idea of a National Courts of Appeal — a court only to hear appeals in cases — to reduce the burden on the Supreme Court. But P Wilson has called this idea “disastrous.”
“This is proposed to be a court between the high court and Supreme Court. This will only increase the longevity [of the case] – even as many cases have been known to go on for 30-40 years before they are resolved. Who is going to be benefitted from this? Even as a lawyer, I would be interested in seeing that the case comes to an end, and not go to additional constitutional authorities. Instead of this, set up regional benches,” he reinstates.
This piece is a part of TNM's reader-funded Cooperative Federalism Project. Indian residents can support the project here, and NRIs, please click here.