The power to pardon

Independent India has had 17 Heads of State. Of these, two were Governors General Lord
Louis Mountbatten (1947-1948) and C. Rajagopalachari (1948-1950). They were followed by
15 Presidencies, if we take Babu Rajendra Prasads three spells in that office to be the distinct
Presidencies that they were ( 1950-1952, 1952-1957, 1957-1962).
Each one of the 17 has had to deal with cases involving what, in the language of common
parlance, is called the power of pardon. This power is the authority which Article 72 of
the Constitution of India confers on the Head of State to grant pardon or commute the
sentence ... in all cases where the sentence is a sentence of death. This power is not a
penthouse provision for the President to luxuriate in, arbitrarily or in a moment of operational
surplus.
Sovereigns prerogative
Article 72 is about a very old but creatively renewed principle of a sovereigns prerogative to
adjudge capital crime against the backdrop of its circumstances, not legalistically but
civilisationally. It is an opportunity for the sovereign, now our elected President, the First
Citizen of India, to view a crime committed by one fellow citizen against another, which has
invited the ultimate punishment, the legal taking away of the right to life, to see if that
punishment than which there can be no greater punishment, is merited, deserved, fair, just
and, above all, free from any error of judgment by those tasked to judge it.
In other words, the power to pardon is not about punishment as it is about redemption.
Sentencing people to death has been known to human societies, including ours, ever since the
chance to commit crimes and the power to punish those have been known. But millennia after
the death sentence has been made a part of our penal and punitive consciousnesses, the finer
fibres of the human brain were actuated by the Supreme Courts definitional ruling in 1980
which said the death sentence was to be awarded only in the rarest of rare cases. This
pronouncement was as pragmatic as it was inspired by the world-wide trend against what was
beginning to be seen as judicial murder.
When considering the process of the power of pardon, we should be mindful of four facts
about it facts that are so important and foundational that they acquire the status of what
may be called truths. I will not call them the Four Noble Truths, plagiarising the Buddha,
but they are about an order of human behaviour in which the sovereign is one step ahead of
society on the civilisational incline. The four may be summarised as:
First Clemency is not a door which the President may open to let misplaced mercy
through; but it is one he may cause to be opened to see if fairness has been blocked at its
threshold.
Second Pardon is not a gift the President may lavish on the criminal; but it is a power that
the people of India have conferred on him to use when narrow codes hold a larger justice
hostage.
Third Mercy, when prayed for by one sentenced to death, is not just about an individuals
scream for life against its judicial extinction, but part of humanitys journey towards a higher
condition under law.

Fourth Article 72 is not about the law, it is about the sovereigns overview of the human
situation involved in capital crime, that sees in it that which the law cannot see or evaluate,
only the nations anointed guardian can and then again, not to saturate the laws appetites, but
the thirsts of societys human sensibilities.
The power to pardon as given under Article 72 is a given formulation of so many words
which each copy of the Constitution of India must reproduce in exactly the same language.
The Head of the State, however, is a human being, not a printed text. From predecessors
distinct and from successors distinguishable, each Head of State is a thinking, reflecting
human being, with views, memories, conditionings, predispositions. He or she can therefore
bring a certain philosophy to bear on the matter or, perhaps, none. The President uses his
calibrated power to either reject the prayer and thereby turn the rejection into a noose or
accept it, as a measure of his confidence that the ends of justice are served through the lesser
chastisement of a life-term in prison.
Differing approaches
Lawyers though both were, Governor General Rajagopalachari and President Prasad seem to
have had very differing approaches to the death sentence. The conservative Tamil was mostly
on the same page as the sentencing judges, though there can be no doubt that he read every
line of the case with the thoroughness of a lawyer studying his brief. As the lawyer and
independent researcher, Bikram Jeet Batra, tells us in his 2009 study of constitutional
clemency, Rajagopalachari received 384 mercy petitions, of which he rejected 318,
commuting 66. Prasad was inclined to search for extenuations in the 2,762 mercy petitions he
received, of which he rejected 2013, commuting 749. The commuting rate was higher with
the reflective Bihari but even more important than the numbers was the manner of his
handling the petitions. Batra tells us In the 12 long years in office the interest shown by
President Prasad in mercy petitions certainly played a major role in making the clemency
system fairer and more credible. In addition while his rigorous analysis stretched the limited
powers available and asserted his moral authority over the executive, his propriety avoided
embarrassing confrontations on this front.
President Radhakrishnan, as Batra tells us, was on the side of the abolitionists and started a
discussion with Prime Minister Nehru on doing away with capital punishment. President
Zakir Husains tenure (1967-1969) was attenuated by death but, incredibly, it yet saw the
scholar-President take mercy petitions down the Radhakrishnan road. President Giris early
years, likewise, saw commutation recommendations and their approval.
Two Presidents I was privileged to serve had widely differing views on the subject. By the
time President R. Venkataraman began his tenure (1987-1992), the rarest of rare principle
had brought the number of mercy petitions down. The first year of his tenure (1987-1992),
like President Mukherjees saw backlog mercy petitions 28-29 of them being
disposed of with vim and despatch. He received during his five years in office, a total of
merely 39 mercy petitions of which sentences were commuted only in five cases four
commutations were on grounds of delay.
President K.R. Narayanans tenure (1997-2002) saw an even smaller number of petitions but
even these filtered cases required the power of pardon to have full play during its point in the
script, and President Narayanan, when the recommendation was one of rejecting the appeal
for commutation, explored the farthest limits of the cases rare ness. In the manner that he
probed the recommendation he made it clear to the Home Ministry and, in particular to the
sensitive Home Minister Indrajit Gupta, that this was not only no hanging President but one
who held hanging to have in it that touch of murder that made it twin the crime.

Sitting on mercy petitions is abdication. But disposing recommendations for rejection in

the manner of an input-output equaliser is automation. Article 72 is neither meant to be
switched off nor put on a treadmill.
Public opinion
There is such a thing as capital crime; there is such a thing as jurisprudential evolution. And
there is of course such a thing as public opinion. There are those who would say, and
perhaps accurately, that if a referendum were to be held in India today, the hangman will not
only stay but have to be paid overtime. Terror and crimes against women have given the
noose just that dip in grease its immortality needs. But since when has the State become such
a three-legged racer with public opinion? Would our progressive enactments on
untouchability, dowry, domestic violence, have stood a chance against the orchestrations of
opinion by khap panchayats and their kind? A democracy is about what a people want, but a
Democratic Republic is also about what its enlightened New Agers fight to make it what it is
meant to be.
The power of pardon as used by its 17 wielders presents a mixed picture. Some of them used
Article 72 perfunctorily, even reluctantly, yet some others did so with differential effect, not
just for the man under the shadow of the noose but for the future of capital crime and capital
punishment. The death penalty may not be abolished in India tomorrow but that is where it
has to go. With the rarest of rare principle, judges can no longer be exonerating judges
and hanging judges. Likewise, there should be no pardoning President, no hanging
President, only a sagacious and sublimating use of the power of pardon by one placed at the
tallest summit of our evolving Statehood.

President's power to grant clemency

should not be questioned
The Centre today told the Supreme Court that courts should not inquire into a decision of the
President to grant pardon to a convicted person, saying the power of the head of the executive
is beyond the pale of question.
"The power to grant clemency is an attribute of sovereignty. The court ought not to inquire
into the merits of the exercise of the prerogative," the government said in its affidavit filed in
the apex court.
The response was filed in compliance with the apex court's order which had on November 18
issued a notice to it on a PIL challenging former President Pratibha Patil's decision to
commute death sentence of five condemned prisoners in child rape cases.
"The manner of consideration of a mercy petition lies within the discretion and prerogative of
the President of India. The court in the exercise of its judicial powers must give due
deference to the decision of another Constitutional authority. It is submitted that the exercise
of power by the President is beyond the pale of question," it said.
It said in case of a decision being rendered in favour of or against the convict, the courts in
exercise of the powers of judicial review ought not to nullify the decision of another
Constitutional authority. "If the courts are to nullify the effect of President's order after such a
decision is taken by him, it would amount to sitting in appeal over the decision of the

President and substituting it with a judicial decision, which could never be the intention of
Constitutional makers," it said.
The apex court had in November last year agreed to hear the PIL, filed by journalist Pinki
Virani, questioning the then President's decision to commute the death penalty in the cases of
extreme brutality.
She had contended that out of 35 cases in which death sentence was commuted by Patil, five
cases are pertaining to brutal child rape and submitted the relief should not have been granted
by the President in those cases.

Where should the judiciary draw the

line?
Instead of re-ploughing the well-worked terrain which ranges justiciability against nonjusticiability, the real challenge is to formulate a democratically justifiable role for the
courts.
While justifying this statement of hers, Professor Sandra Fredman elucidates the remarkable
way in which the Indian judiciary has succeeded in the above endeavour. It is the same
Indian judiciary which has come under the media scanner over the past few months
interventions/ decisions in the imprisoning of Subrata Roy in the SEBI-Sahara dispute; the
IPL betting case; the challenge to Section 377 of the IPC; and the most recent dicta on the
status of transgenders have evoked a mixed response. What the critics of judicial intervention
have, however, missed is the fact that in each of these cases, judicial intervention would have
been unnecessary but for legislative/ executive inaction and inefficiency PRS Legislative
Researchs data reveals that 51 per cent and 42 per cent of the available time in the Budget
and Monsoon Sessions for the year 2013 was wasted due to disruptions. The object of this
piece is not to go into the merits of each of the above decisions but to put forward an
argument in favour of judicial activism and to analyse where the Court has to draw
its Lakshman rekha keeping in view the main aim of judicial activism.
After playing a largely interpretative role in the 1950s and 1960s, the Supreme Court,
starting from the 1970s has been the major force standing up against legislative and executive
excesses and inactions. Starting from inventing the basic structure doctrine to bring
constitutional amendments under the judicial scanner to widening the scope of the right to life
and liberty, the 1970s and 1980s saw the judiciary play a highly proactive role in ensuring
that India develops into a thriving democracy.
The decision in Maneka Gandhi v. Union of India , where it was held a person could be
deprived of his right to life only by a law which was just, fair and reasonable; and in Bandhua
Mukhti Morcha v. Union of India , where the concept of Public Interest Litigation (PIL) was
introduced and the locus standi requirement was diluted, were key game changers which
ensured that India did not slide down the slippery slope towards dictatorship.
Intervention, not overreach
The most common argument against excessive judicial intervention is Professor Waldrons
who argues that empowering judges to decide on policy issues amounts to disrespecting the
democratically elected representatives.

The logical extension of this argument is that judicial activism results in upsetting the balance
of power between the executive, legislature and the judiciary.
However, such an argument firstly assumes that the legislature and executive are performing
their functions efficiently and secondly that the judiciary is incapable of intervening in a
manner which helps further the ideals of democracy.
The assumption that the Parliament and executive make policy decisions based on effective
participation with the citizens a flawed one and the judiciary has a role in ensuring that there
is effective participation from interest groups. Further, Professor Waldrons argument
assumes that judicial intervention means that judges have the final say on the policy issue.
The judges can, however, promote decision making relating to policy issues without being
the ultimate decision maker.
The Indian model of activism has formed the bedrock of South African jurisprudence.
However, there are certain landmark South African decisions which can be used as a guide as
to where Courts must draw the Lakshman rekha .
The best example is the Rand Properties case which involved a challenge to the states
eviction of inmates of dilapidated buildings in central Johannesburg.
Since right to housing was a fundamental right which the state had failed to provide, the
judiciary directed the state and the inmates to engage with each other meaningfully and
in the light of the values of the Constitution, the constitutional and statutory duties of the
municipality and the duties of citizens concerned to resolve the dispute.
The judiciary, by its interventions, ensured that these deliberations were on a level playing
field as the final result of the deliberations was susceptible to scrutiny by the Court.
In this manner, while it ensured that executive inaction was not pardoned, the final decision
itself was left to the executive but subject to judicial superintendence.
Another example of an innovative pro-democratic intervention is the case of Minister of
Health v. Treatment Action Campaign , where the government was given directions to review
its policy regarding distribution of antiretroviral drugs and plan an effective and
comprehensive national programme to prevent Mother To Child Transmission (MTCT) of
HIV.
Restrictive interference
These cases clearly illustrate that it is possible for courts to monitor actions of the other limbs
of democracy without actually stepping into their shoes. These precedents get theoretical
support from the writings of Professor Roach who argues that the judiciary should not create
policies to enforce rights but must require the government to draft its own policy and submit
it along with a timetable for execution. The finalisation of this plan must be only after the
judiciary has heard objections from other interested parties.
Once such a policy is framed by a legislature/ executive, it is to be interfered with by the
judiciary in a very restrictive manner, using the principle of deference. According to this
principle, the judiciary, while evaluating executive/ legislative action (or inaction), should
modify the policy framed only when the reasons provided are not reasonable.

A court should merely see whether the reasons provided by the executive justify its decision,
not whether the court would have reached the same decision. This standard should be applied
not only when a policy is tested before the courts but also by courts to see if inaction is
justified.
While there is the danger of judicial activism being misused by unscrupulous elements and
the Supreme Court has come down heavily on such misuse, the solution is not to throw away
the baby with the bathwater.
The mere risk of judicial over-activism cannot be an argument against judicial activism.
Judicial activism, keeping in view the ideals of democracy, is, in fact, necessary to ensure
that unheard voices are not buried by more influential and vocal voices. Indeed, on most
occasions, timely interventions of the judiciary in India the home of judicial activism
has helped democracy flourish in our country despite repeated failures of the other organs.
( Anirudh Krishnan is an advocate with the Madras High Court and a consultant with the
Law Commission of India )

Towards a true Constitutional Court

The creation of four regional Courts of Appeal as final appellate courts, while restricting
the Supreme Court of India to its true function as a Constitutional Court, has become
imperative.
The importance of decentralisation of the administration of justice as a means of realising
access to judicial institutions has been argued strongly by no less a distinguished jurist than
V.R. Krishna Iyer, a former Judge of the Supreme Court of India (Questions of Judicial
Access, The Hindu, February 3, 2010). Although Justice Krishna Iyer has advocated the
setting up of four regional benches of the Supreme Court, I believe that the establishment,
instead, of four regional Courts of Appeal (along the lines I suggested in the recent R.K. Jain
Memorial Lecture) would be a more effective means to ensure that the poorest litigant from
the farthest corner of India has inexpensive and ready access to justice. My proposal to create
four regional Courts of Appeal as final appellate courts, while restricting the Supreme Court
of India to its true function as a Constitutional Court, appeared to be acceptable to Chief
Justice of India K.G. Balakrishnan, who was the Chief Guest at the Lecture (I Can't Let
Apex Court Split: Chief Justice, DNA, January 31, 2010).
Over the last six decades, the Supreme Court's extraordinary power has manifested itself in
the form of judgments encompassing every sphere of the nation's activity. No grievance has
been too insignificant to attract the court's palliative and curative jurisdiction. Inspired by the
desire to give true meaning to the Constitution's promise of justice, liberty and equality for
all, no litigant has been turned away by the Supreme Court, and there is virtually no area of
human endeavour in regard to which it has not exercised its jurisdiction, original or appellate.
There is, however, a price to be paid for the court's metamorphosis into a powerhouse of
judicial activism: the problem of mounting arrears. As of September 2009, there were no less
than 53,221 cases pending before the Supreme Court. Many would say that the writing was
on the wall as early as in the 1970s. Arrears in the Supreme Court had leaped from 680 cases
in 1950 to over 100,000 by 1989. The pendency of cases came down to 19,000 in 1997 due,

in large part, to the manner in which petitions and interlocutory applications came to be
numbered together. There has, however, been a worrying 150 per cent increase in total
pendency between 1997 and 2009. In my view, this calls for a reassessment of the normative
and constitutionally mandated role of the Apex Court. I am not convinced that merely
augmenting the number of judges in the Supreme Court will solve the problem of arrears. On
the contrary, there is good reason to believe that expanding the capacity of the court may
aggravate rather than alleviate the inefficiencies in the current system.
A cursory glance at the Supreme Court's Practice and Procedure Handbook will reveal how
far the court has strayed from its original character as a Constitutional Court and gradually
converted itself into a mere court of appeal which has sought to correct every error it finds in
the decisions of the 21 High Courts and numerous Tribunals from which appeals lie to it. The
jurisdiction of the Supreme Court may now be invoked in relation to matters falling within
any of 45 categories listed in the Practice and Procedure Handbook. These include the entire
gamut of routine cases involving labour law, the rent act, direct and indirect taxes, acquisition
of land, service law, criminal law, family law, and so on. These 45 heads further have 140
sub-categories under which the court may be called upon to exercise its appellate jurisdiction.
For example, there are 22 sub-categories under service matters alone and 35 sub-categories
under indirect tax matters. Under family law matters, the court may be called upon to decide
cases involving divorce by mutual consent, restitution of conjugal rights, child custody,
adoption, minority and guardianship, alimony cases, and so on.
Surely, however generous one may be in seeking to render justice to all, it will be obvious to
anyone that if an Apex Court attempts to adjudicate all such cases, it will defeat the great
purpose for which the court was established under our constitutional system. In such a
scenario, it necessarily has to accumulate vast arrears over a period of time, which will be
impossible for it to clear in any foreseeable future. According to me, this is a self-inflicted
injury and the cause of the malaise which has gradually eroded the confidence of litigants in
the Apex Court, mainly because of its failure to hear and dispose of cases within a reasonable
time-frame.
The effort, then, in the words of Justice K.K. Mathew, a former Judge of the Supreme Court,
must be to voluntarily cut the coat of jurisdiction according to the cloth of the importance of
the question, and not to expand the same with a view to satisfying every litigant who has the
means to pursue his cause. I do not mean to imply that the Supreme Court should be the sole
preserve of the wealthy or well-connected. Rather, it is my view that the cause of justice and
the interests of the litigant public would be best served if the court entertains only those cases
which measure up to the significance of national or public importance. It will be my thesis,
for reasons to be stated presently, that cases which do not raise questions of national or public
significance should be finally decided by intermediate courts which are to be created by an
amendment to the Constitution.
Previous attempts to tackle arrears by making additions to the Bench have proven to be
unsuccessful. The original strength of eight judges in 1950 has progressively been increased
by amendments to the Supreme Court (Number of Judges) Act of 1956, to 11 in 1956, 14 in
1960, 18 in 1977, 26 in 1986 and 31, today. It is against this backdrop that I would suggest
the creation of four regional or zonal Courts of Appeal that would absorb the 140 categories
of cases spanning matrimonial, rent control, labour, service, land acquisition and other
matters entertained by the Supreme Court today. These cases would belong to the exclusive
jurisdiction of the Courts of Appeal that would be established in the four regions of the
country. The chartered High Courts of Bombay, Calcutta and Madras, and additionally, the

High Court of Delhi, could themselves well be the seats of these Courts of Appeal which
would be manned by judges of the same calibre as the judges who would otherwise be
elevated from the High Courts to the Supreme Court. The age of retirement of the Judges of
the Courts of Appeal would be 65 as, logically, they would need to have a higher retirement
age than Judges of the High Court. Correspondingly, the age of retirement of Supreme Court
Judges may have to be enhanced to 68 or even 70 years as is common in countries like
Australia and Canada. The Supreme Court would then be left with only those cases which
would fall within the jurisdiction vested in it by the framers of the Constitution and covering
essentially the following matters:
1. All matters involving substantial questions of law relating to the interpretation of the
Constitution of India or matters of national or public importance;
2. Settling differences of opinion on important issues of law between High Courts or between
Courts of Appeal;
3. Validity of laws, Central and State;
4. After the Kesavananda Bharati case, (1973) 4 SCC 217, the judicial review of
Constitutional Amendments;
5. Resolving conflicts between States and the Centre or between two States, as well as the
original jurisdiction to dispose of suits in this regard; and
6. Presidential References under Article 143 of the Constitution.
I would conceive that the Constitution would be amended by adding Article 136A, whereby
the regional Courts of Appeal would exercise the powers which were hitherto being exercised
by the Supreme Court under Article 136 of the Constitution. This means that the Courts of
Appeal would finally decide all cases arising from the High Courts relating to the 140 subcategories mentioned earlier, without any further appeal lying to the Supreme Court. If,
however, any question arises before a Court of Appeal which would fall within the newly
carved-out jurisdiction of the Supreme Court as elaborated above, it would refer the same to
the Supreme Court for decision. Similarly, I would omit Article 32 from the original
jurisdiction of the Supreme Court. This means that actions alleging breaches of fundamental
rights would be brought before any of the Courts of Appeal instead of the Supreme Court
which would only exercise its appellate jurisdiction in such cases if questions are presented
whose resolution will have immediate importance far beyond the particular facts and parties
involved.
(K.K. Venugopal is a Senior Advocate, Supreme Court of India. This is the first part of a twopart article.)

For proximate and speedy justice

While the Supreme Court should become a Constitutional Court, the setting up of Courts
of Appeal, each comprising 15 judges divided into five benches, for the four regions ofthe
country will prove to be a real boon to litigants.

Things had come to a pass in the Supreme Court of India, when Justice E.S. Venkataramiah
in P.N. Kumar v. Municipal Corporation of Delhi, (1987) 4 SCC 609 relegated the writ
petitioner under Article 32 to the High Court, without deciding whether any fundamental
rights were violated or not, giving, among others, the following reason: This Court has no
time today even to dispose of cases which have to be decided by it alone and by no other
authority. A large number of cases are pending from 10 to 15 years. Even if no new case is
filed in this Court hereafter, with the present strength of Judges it may take more than 15
years to dispose of all the pending cases.
There was a huge hue and cry at the Bar, which alleged that the Judge was violating his oath
of office in refusing to entertain petitions under Article 32, which itself was a sacrosanct
fundamental right.
I should point out that the idea of having Courts of Appeal in India for relieving the Supreme
Court of its huge burden is not new. Justice K.K. Mathew, whom I have cited earlier, had, in
an article published in 1982 contemplated Courts of Appeal to relieve the huge backlog of
cases in the Supreme Court.
Later, Justice P.N. Bhagwati, in Bihar Legal Support Authority v. Chief Justice of India and
Anr., (1986) 4 SCC 767 had this to say: The Supreme Court of India was never intended to
be a regular court of appeal against orders made by the High Court or the sessions court of
the magistrates. It was created for the purpose of laying down the law for the entire country
and the extraordinary jurisdiction of granting special leave was conferred upon it under
Article 136 of the Constitution so that it could interfere whenever it found that the law was
not correctly enunciated by the lower courts or tribunals and it was necessary to pronounce
the correct law on the subject.
The Constitution Bench had itself felt the need to set up a National Court of Appeal and
observed in the very same judgment thus: We think that it would be desirable to set up a
National Court of Appeal which should be in a position to entertain appeals by special leave
from the decisions of the high courts and tribunals in the country in civil, criminal, revenue
and labour cases and so far as the present apex court is concerned, it should concern itself
only with entertaining cases involving questions of constitutional law and public law.
It would therefore be seen that the idea of establishing Courts of Appeal to relieve the
Supreme Court of its tremendous burden has been propounded quite some time back. As a
matter of fact, the Law Commission of India in its 229th Report (2009) recommended the
setting up of a Cour de Cassation in each of the four regions to act as a final court with
regard to the matters entrusted to it. Recently, the Chief Justice of India, Justice K.G.
Balakrishnan, expressed a similar view by suggesting that there could be Courts of Appeal in
the different regions.
Statistically, it appears from a paper published by Nick Robinson, a Yale Law School
Research Fellow, that 10 per cent of the cases filed in the Supreme Court emanate from
Delhi, 6.2 per cent from Punjab and Haryana, and 6.2 per cent from Uttarakhand, with only
1.1 per cent and 2.4 per cent coming from large States like Tamil Nadu and Karnataka. This
would imply that the distance of the Supreme Court from the southern States would, in fact,
be an impediment to access to the Supreme Court in Delhi.
If Courts of Appeal were to be established in each region in the precincts or the vicinity of the
High Courts of Bombay, Calcutta, Delhi and Madras, litigants in these and neighbouring

States would be able to access these Courts of Appeal at far less expense than if they were to
travel all the way to the Supreme Court. The proximity of the Courts of Appeal would be a
real boon to the common man.
I would contemplate the Courts of Appeal as having 15 judges each. Judges would sit in
divisions of three. This would mean that five benches would function at all times, with the
total number of judges in all four courts together being 60. Therefore, instead of increasing
the strength of the Supreme Court, one would, on the other hand, have established convenient
and accessible courts in each region.
Were the proposal for four regional Courts of Appeal to be accepted, I would anticipate that
the Supreme Court would be left with only 1,000 to 2,000 cases involving core constitutional
and other issues of national importance. In such circumstances, I do not think the court would
need more than 20 judges sitting in Benches of five dealing with both admissions and the
final hearing of cases. Judges would then have the leisure to study briefs long before coming
to court. The practice of the United States Supreme Court to obtain written briefs in advance
from counsel would result in judges, who are thorough with the briefs, restricting counsel to
the main issues in the case. Cases would be disposed of far more expeditiously than they are
today. I have no doubt that a newly transformed Supreme Court dealing only with
constitutional cases and cases of far-reaching national importance would thereafter be able to
dispose of the cases filed during a year, in the year of filing itself.
Today the Supreme Court disposes of about 50,000 cases a year but falls short of the filings
that year by about 3,000 to 4,000 cases. The U.S. Supreme Court with nine judges sitting en
banc is able to dispose of only 80 to 100 cases a year. The erstwhile Judicial Committee of
the House of Lords was able to dispose of only about 180 cases a year. In the case of the
Supreme Court of India, I am certain that it will easily be able to deal with 1,000 to 2,000
cases a year without lawyers or clients feeling that they have not been given a full and
complete hearing.
I believe that the time for complacency is long past. If one has to beg for a hearing date even
after three or four years have elapsed after the filing of a case, and still cannot get a date
within a month or two, it means the system has failed. No other viable solution has been
found so far and it does not appear that expanding the Bench by five judges to 31 would
miraculously make the arrears of 50,000 cases disappear. It is time to take bold decisions, and
if we hesitate any more without finding a solution, we would have failed the nation and the
litigant public.
I am encouraged by the fact that a significant change may soon be in the offing. Quoting
extensively from the recent R.K. Jain Memorial Lecture delivered by me, in which I proposed
the creation of regional Courts of Appeal, a Bench of the Supreme Court of India (comprising
Justice Markandey Katju and Justice R.M. Lodha) has referred to a five-judge Constitution
Bench the question whether guidelines should be issued for exercise by the Supreme Court of
its appellate jurisdiction under Article 136 of the Constitution. Although the setting up of
regional Courts of Appeal along the lines I have suggested will require a constitutional
amendment, the Constitution Bench reference possibly marks a first, important step in
transforming one of the most pivotal institutions in our polity today.
(K.K. Venugopal is a distinguished Senior Advocate, Supreme Court of India. This is the
second and concluding part of his article. The full text of his R.K. Jain Memorial Lecture, to
which reference was made by the Supreme Court, is accessible at beta.thehindu.com)

Law Commission Recommendation

Article
(Three Regional Benches Need of Time)
The Law Commission of India headed by its Chairperson Justice A.R. Lakshmanan has
recommended on May 07, 2009 that a Constitution Bench of the Supreme Court be set up at
Delhi and three regional Benches at Chennai/Hyderabad, Kolkata and Mumbai to deal with
appeals from High Courts from the respective regions to exercise cessative jurisdiction of the
apex court in each of the region
The Commission, in its report to be submitted to the government said: The apex court would
thus be relieved of the backlog of accumulated cases which are causing a burden and
continuous strain on the resources of the apex court. It said: Since the accumulated cases
pertaining to a particular region would be dealt with by the particular zonal Bench, the apex
court would be free to deal with only constitutional cases such as interpretation of the
Constitution, matters of national importance such as references made by the zonal Benches to
larger Benches due to conflict of authority or any other reason, cases where the interests of
more than one State are involved such as inter-State disputes on land, electricity, water, etc.
Reference made under Articles 143 and 217 of the Constitution, Presidential and VicePresidential elections, suits between two or more States, etc.
The Commission suggested that all PILs from any part of India should be decided by the apex
Constitution court to ensure no contradictory orders were issued and also to halt the
mushroom growth of cases. It referred to various reports submitted by the parliamentary
committees recommending such regional Benches and said, there were tried all the measures
to reduce the backlog of cases and the result appeared to be far from satisfactory. The time
has come when the entire judicial set-up will have to be rehauled and refurbished in order to
make the goal of speedy justice a pulsating reality.
Why Should be New Benches Set-up?
The advantage of setting up Benches is that this can be made effective without any delay
since the constitution of Benches is a matter within the purview and jurisdiction of the
Supreme Court itself. If the judge strength of the zonal benches is confined to two judges,
each zone will require only six judges which means that only 24 judges will be required for
the four zones and other judges will be available in the apex court which have a Constitution
Bench working on a regular basis.
Apex Court's View:A parliamentary panel's repeated recommendations to establish more benches of the Supreme
Court - aimed at enhancing its accessibility - have fallen on deaf ears in January 2009. While
the apex court continued to stonewall the idea of establishing just a single bench 'even on
experimental basis', the government is wary of accepting the panel's recommendation to
amend the constitution to set up more benches. The Supreme Court's view on this issue is
well known.

According to it, no proposal at present to set up any bench of the Supreme Court anywhere in
the country. The particular parliamentary panel has been stressing with unfailing regularity
the need to set up at least three Supreme Court benches, one each at Mumbai, Kolkata and
Chennai for over the last two decades. But the Supreme Court had been consistently rejecting
the proposal which would enhance its accessibility by its decentralisation. During the 14th
Lok Sabha term, the parliamentary panel on the law and justice ministry, then headed by
Congress stalwart and present External Affairs
Minister Pranab Mukherjee, had recommended at least thrice between 1999 and 2000 to have
more Supreme Court benches. And the Supreme Court rejected it every time. The
recommendation was repeated in mid-2005 by the present parliamentary panel, headed by
Natchiappan, who said at least one Supreme Court bench should be set up in Chennai 'at least
on experimental basis'. Expressing its exasperation over the apex court's aversion to have any
bench in other parts of the country, the committee had observed that it was not satisfied with
the persistent opposition of the Supreme Court in establishing more benches in other parts of
the country, more so when the court does not have any convincing reason or the justification
thereof'.
The committee therefore endorsed its earlier view that the establishment of benches of the
Supreme Court in other parts of the country would be of immense help to the poor, who
cannot afford to travel from their native places to Delhi .Factoring in the apex court's
consistent opposition to the establishment of its bench, the parliamentary panel went to the
extent of asking the government to amend the constitution to set up more Supreme Court
benches. Article 130 of the constitution provides that '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, decide from time to time. But Union Law Ministry said the apex court has rejected
the idea of setting up its bench in Chennai 'even on an experimental basis'.
Cases Pending in Courts:Over three million cases are pending in India's 21 high courts, and an astounding 26.3million
cases are pending in subordinate courts across the country. At the same time, there are almost
a quarter million under-trials languishing in jails across the country. Of these, some 2,069
have been in jail for more than five years, even as their guilt or innocence is yet to be
ascertained. This has been revealed by official figures emerging from the home ministry's
department of justice, under a Right to Information Act application placed by a citizen. It has
also been found that over a quarter of all pending high court cases are at Allahabad.
The Allahabad High Court had some 1.09 million pending cases, with over eight out of
every 10 cases being civil cases at the end of 2006. Meanwhile, the Supreme Court of India
had a total of 39,780 civil and criminal pending cases at the end of last year. Madras High
Court (406,958 pending cases) and Bombay High Court (362,949) were the others with a
large number of pending cases. Sikkim is the lowest with just 51 pending cases. Of the
pending cases in high courts, 704,214 were criminal and 3.2 million were civil cases.
In subordinate courts, Uttar Pradesh again topped the number of pending cases (4.6
million), followed by Maharashtra (4.1 million), Gujarat (3.9 million), West Bengal (1.9
million), Bihar (1.2 million), Karnataka (1.06 million), Rajasthan (1.05 million), Orissa (1
million), Andhra Pradesh (900,000).

 In another query, the National Crime Records Bureau that functions under the home
ministry told Hari Kumar P. of Kasargod in a Right to Information Act reply that the number
of under-trials in India was highest in Maharashtra (15,784) and Madhya Pradesh (15,777)
Bihar (with 628 prisoners) topped the number of states with the maximum number of undertrials kept for over five years. Punjab also had 334 under-trials for over five years and Uttar
Pradesh had 212. Delhi itself had 344 under-trials languishing in jails for over five years.
On the positive side, some states had no under-trials in jail for this long a period without
their trials being completed. These states included Andhra Pradesh, Goa, Himachal Pradesh,
Kerala, Manipur, Mizoram, Sikkim, Tamil Nadu, and Tripura, apart from some smaller states
and union territories.
What is Law Commission?
Law Reform has been a continuing process particularly during the last 300 years or more in
Indian history. In the ancient period, when religious and customary law occupied the field,
reform process had been ad hoc and not institutionalised through duly constituted law reform
agencies. However, since the third decade of the nineteenth century, Law Commissions were
constituted by the Government from time to time and were empowered to recommend
legislative reforms with a view to clarify, consolidate and codify particular branches of law
where the Government felt the necessity for it.
The first such Commission was established in 1834 under the Charter Act of 1833 under the
Chairmanship of Lord Macaulay which recommended codification of the Penal Code, the
Criminal Procedure Code and a few other matters. Thereafter, the second, third and fourth
Law Commissions were constituted in 1853, 1861 and 1879 respectively which, during a
span of fifty years contributed a great deal to enrich the Indian Statute Book with a large
variety of legislations on the pattern of the then prevailing English Laws adapted to Indian
conditions. The Indian Code of Civil Procedure, the Indian Contract Act, the Indian Evidence
Act, the Transfer of Property Act. etc. are products of the labour of the first four Law
Commissions.
After independence, the Constitution of India with its Fundamental Rights and Directive
Principles of State Policy gave a new direction to law reform geared to the needs of a
democratic legal order in a plural society. Though the Constitution stipulated the continuation
of pre-Constitution Laws (Article 372) till they are amended or repealed, there had been
demands in Parliament and outside for establishing a Central Law Commission to
recommend revision and updating of the inherited laws to serve the changing needs of the
country.
The Government of India reacted favourably and established the First Law Commission of
Independent India in 1955 with the then Attorney-General of India, Mr. M. C. Setalvad, as its
Chairman. Since then eighteen more Law Commissions have been appointed, each with a
three-year term and with different terms of reference. The Eighteenth Law Commission was
constituted under Dr. Justice A R Lakshmanan, Former Judge Supreme Court of India
through a Government order with effect from September 1, 2006. It will have a three year
term ending August 31, 2009.

Judicial overreach should be avoided

The word Representative Bench got a new meaning when Justice P. Sathasivam, who hails
from an agricultural family, took over as the Chief Justice of India on July 19, 2013. He is a
stickler for discipline and punctuality. Senior advocate Fali Nariman has given a 90 per cent
rating for his performance. After a successful tenure of nine and half months, he is demitting
office on April 26. Here are excerpts from an hour-long interview with J. Venkatesan.
Mr. Justice Sathasivam, you rose to the highest position as Chief Justice of India from a
humble background. Are you satisfied with your overall performance?
Totally, I spent eighteen and half years in the High Courts, including about seven years in this
Court. [I was the] first graduate in the family as well as in my village, Kadappanallur, in
Erode district of Tamil Nadu. I did not take a single days leave during my tenure as a High
Court judge and only one days leave as a Supreme Court judge. I am satisfied with my
performance, particularly, during the short tenure of nine months as CJI.
In my period as CJI, appointment of four judges in the Supreme Court, six Chief Justices and
89 judges in the High Courts took place. As on April 1, the percentage of vacancies at High
Court level in the country came down to 28 per cent. It was 30 per cent when I began my
tenure as CJI. The first National Lok Adalat was held in the history of the Supreme Court in
November wherein we successfully disposed of 71.78 lakh cases.
Did you get any feedback on the performance of judges?
As far as discipline and punctuality are concerned, there is no dispute that judiciary at all
levels is maintaining the same. One or two exceptions may be there. In my view, not only the
Supreme Court but all courts in India must utilise time judiciously.
As far as non-delivery of judgments, generally all the judges are delivering judgments/orders
as soon as possible.
Have your efforts in clearing mounting arrears of cases and filling up of vacancies
yielded the desired results?
When I took over the office of Chief Justice, the pending matters were 67,964 and now it is
63,625. Special emphasis was given for disposal of Constitution Bench matters. In the
intervening period of nine and half months, ten Constitution Bench matters were disposed of.
These could have been much higher but for the fact that there is phenomenal increase in filing
of cases as compared to the rate of disposal.
During your tenure, the Supreme Court had the full strength of 31 judges for a brief
period. Were you able to fulfil your promise of adequate representation to all
communities? For the last four years there is no representation from the SC
community, who feel let down. There is no representation for Madhya Pradesh and
Haryana as well.
Immediately on assuming office of the Chief Justice of India, in July, I addressed a
communication to Chief Justices of all the High Courts to take steps for filling up the posts of

High Court judges against existing as well as anticipated vacancies. While emphasising the
desirability of giving appropriate representation to members of SCs/STs/OBCs and other
unrepresented communities, minorities and women, the Chief Justices of High Courts were
requested to consider relaxing age, income and other criteria to the otherwise deserving
candidates belonging to these sections of the society but at the same time without
compromising on the prescribed qualifications and expected standard.
During my tenure, with the cooperation of my colleagues, I tried my level best to give
representation to Madhya Pradesh and Haryana but it could not materialise before my
retirement.
There is criticism about the procedure followed for appointment of judges; that there is
no transparency in the collegium system. Will the setting up of a National Judicial
Commission (NJC) solve the problem?
According to me, the present collegium system compared to the alternative suggested is
preferable. Even in the existing system, the States and Centre get the opportunity to express
their views.
Further, my personal view is that meaningful consultation should take place with more
judges, meaning thereby, the consultation is not only within the collegium judges but also
with others who are well conversant with the persons to be selected. As the judges in the
collegium are familiar with the performance, capacity and area of specialisation of the
persons to be selected, this is a better system than the NJC.
Do you feel the need to create a National Court of Appeal and Supreme Court Benches
in four regions will help in reducing arrears?
A National Court of Appeal is not required at this juncture because the Supreme Court is
connected all over the country owing to technological advancements. People send case
papers, filing petitions/appeals to the Supreme Court by e-mail and all orders/proceedings of
the Court available on the same day on the website of the Court.
During your tenure how did you tackle corruption, if any, in the judiciary? Is there an
instance of initiating disciplinary action against errant judges?
Insofar as subordinate judiciary, mechanism is provided to deal with complaints under the
control of the Chief Justice of the High Court. As for complaints against judges of the High
Courts, an in-house mechanism is in operation which considers the complaints against judges
and wherever required, the same are being sent to the Chief Justice of the High Court for
inquiry and to the judge concerned for his response before being considered by the competent
authority. Specific complaints received against certain High Court judges were forwarded to
the Chief Justice of the High Court concerned and enquiries were conducted but most of the
complaints could not be proved as they were vague allegations.
There is criticism of judicial overreach in certain decisions. How do you react to this?
It depends upon the facts of each case. Certain events have to be considered by the High
Courts and if it relates to national interest, the Supreme Court can entertain. However, all the
three constitutional functionaries, the Legislature, Executive and Judiciary must be aware of

their boundaries and limitations. I agree to some extent there was judicial overreach in certain
instances, which should be avoided.
Even judges have expressed dissatisfaction over the manner in which the sexual
harassment complaint against former judge A.K. Ganguly was handled when the
Supreme Court had no jurisdiction to deal with such cases. What is your justification?
Since the matter is sub-judice, I am not commenting on it. I can only say that when Justice
Ganguly came here to depose before the fact-finding committee, he was treated with dignity
and all courtesies were extended to him.
The Judges Inquiry Bill is pending in Parliament. Is there any reservation about the
CJI being covered under this Bill?
It is the prerogative of the legislature to enact legislation. We can test it whether it is subject
to judicial scrutiny. I can only say that the Constitution has provided independence of
judiciary and there should not be any interference.
What are your views on making regional languages as the court language?
In my view, there is no difficulty in implementing the regional language as court language at
the subordinate courts level. Even for this, the respective State Governments have to provide
necessary infrastructure. But as far as its implementation in the High Court is concerned, the
bar, judiciary and government must sit together and find a way out.