Recently, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice informed the Lok Sabha that the Law Ministry has accepted its recommendation to establish regional benches of the Supreme Court across India. However, it pointed out that the apex court has been “consistently” rejecting the idea and that the matter is sub judice. Should India have regional benches of the Supreme Court? Justice Govind Mathur and Sanjoy Ghose discuss this in a conversation moderated by Aaratrika Bhaumik. Edited excerpts:
A seminal 2011 study conducted by the legal scholar Nick Robinson showed that a majority of the cases before the Supreme Court are from High Courts close to Delhi. Will the establishment of regional benches reduce such a geographical bias and make it easier for more Indians to access justice?
Justice Govind Mathur (GM): Initially during my tenure as a judge, I used to be opposed to the idea of regional benches since it could lead to more divergent views and adversely affect our justice delivery system. However, now, after examining the issue from the eyes of the common man, I do feel that such benches are the need of the hour. People are less willing to accept arbitrary or unjust actions of the state and its agencies and are increasingly approaching courts of law. The outcome of such cases demands further adjudication by the Supreme Court. It becomes practically impossible for people living in States far away from Delhi to agitate their cause. It is easy to say that the presence of a litigant is not required in appellate forums but the reality is that every litigant wishes to visit his lawyer and witness court proceedings involving his case.
Sanjoy Ghose (SG): While a majority of the cases filed in the Supreme Court do arise from High Courts close to Delhi, this imbalance will not be rectified by merely constituting regional benches. There is also a possibility of numerous frivolous petitions being filed with easier access to justice. Instead, a mechanism should be put in place to scrutinise the types of petitions that are permitted to be admitted in the top court.
The relative success of virtual hearings by courts during the pandemic indicates that hybrid hearings could well be an alternative to regional benches. Do you think this could be a permanent solution keeping in mind that judges can sometimes be reluctant to entertain hybrid hearings?
Sanjoy Ghose: The steps taken by the judiciary since the onset of the pandemic to switch to virtual hearings are laudable. Further, the Chief Justice has also indicated that all courts should shift to virtual hearings. However, even today, in many forums such as the Central Administrative Tribunal and the National Consumer Disputes Redressal Commission of India, virtual hearing facilities are not used. Many judges also prefer lawyers to be physically present. Therefore, I feel that a mechanism should be put in place that allows preliminary and admission hearings to take place virtually, while final hearings are conducted physically.
Justice Govind Mathur: I don’t think that hybrid hearings can be an effective alternative to regional benches. While the use of technology is good for judicial administration, court management, and handling the case flow, it is not a viable solution for judicial adjudication. The physical hearing of cases helps to maintain objectivity with regard to the propositions advanced before the court. Judges are human beings and suffer from several human limitations. Our open court system plays a vital role in ensuring that a judge maintains the appropriate attitude and demeanour. The presence of lawyers and litigants in a courtroom also helps a judge to work without any fear or favour. Therefore, virtual court facilities should be used only in exceptional circumstances.
A prominent pitch for regional benches is that while such benches discharge appellate functions, the principal bench in Delhi can exclusively focus on constitutional matters. However, in an improved rate of disposal, the Supreme Court last year heard more than 20 Constitution bench cases and delivered judgments in at least 18 of those. Do you think such concerns are still valid?
Justice Govind Mathur: Last year, the Supreme Court witnessed a 31% increase in the disposal of cases compared to 2022. However, such a disposal rate is negligible when compared to the total pendency of cases. A little more than 80,000 cases are currently pending adjudication out of which 60,000 cases are civil. This cannot be alleviated only through usual methods and is highly dependent upon the efforts and efficiency of the Chief Justice. The establishment of regional benches will increase the number of judges as well as lawyers resulting in a much-needed boost to our judicial system.
Sanjoy Ghose: I feel that irrespective of the pendency rate, India should take inspiration from France and implement a system comprising a separate court of appeal and courts of cassation — a proposal recommended by the Law Commission of India in its 95th and 229th reports. A permanent appellate court along with several courts of cassation should be established. The permanent appellate court, like in the U.S., should include nine of the senior-most judges from the cassation courts. It should sit en banc and hear only constitutional cases while the cassation courts adjudicate upon appeals arising out of non-constitutional matters. At present, the Supreme Court is overburdened with matters such as transfer petitions, arbitral appeals, etc. which it has no business hearing. It would be appropriate that instead, a court of cassation hears such matters.
Opponents argue that regional benches are likely to contribute to a growing body of conflicting precedents resulting in increased litigation. Do you agree?
Sanjoy Ghose: If there is a separation of the court of cassation from the permanent appellate court, the chances of conflicting decisions would be reduced, as the court of cassation would only apply the decisions of the permanent appellate court. But there may be situations where there are divergent views of the courts of cassation – in those circumstances, the permanent appellate court may resolve the conflict.
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Justice Govind Mathur: I don’t agree with this view. Several High Courts have more than one bench. Despite such a structure, there are only a few conflicting decisions. Nowadays, technology has played a pivotal role in keeping judges updated, which helps to maintain uniformity in decisions. From my experience, conflicting or divergent views result from the non-availability of effective assistance and sometimes due to a lack of judicial discipline.
Mr. Ghose, do you think lawyers who cannot afford to relocate to Delhi are disproportionately impacted by the location of the Supreme Court and often bear the brunt of missed opportunities?
Sanjoy Ghose: Yes. One of the biggest critics of having regional benches has been the Supreme Court Bar. The setting up of regional benches would lead to the Balkanization of the Supreme Court. However, this would lead to a robust Supreme Court Bar at the regional level. We had a similar opposition in Delhi when the jurisdiction of the Tis Hazari Court was divided into different district courts. However, 10-15 years down the line, we see a vibrant District Bar in Saket, Rohini, and Karkardooma. The setting up of regional benches would also lead to greater opportunities and the democratisation of the Bar. It is a welcome step.
At present, Special Leave Petitions (SLPs) constitute over 90% of the Supreme Court’s docket. Justice Mathur, does the remedy lie in bringing about reforms in the High Courts instead of establishing regional benches? For instance, should the Supreme Court only admit SLPs where the concerned High Courts have granted certificates for leave to appeal?
Justice Govind Mathur: Why only the High Courts, the efficiency of all the courts needs to be improved. In the last three decades, although litigation has rapidly increased, we have not seen a proportionate increase in the number of judges. Further, the availability of adequate judicial infrastructure varies from State to State. Even if regional benches are established, certain exclusive powers of the Supreme Court should be retained – its original jurisdiction under Article 131, its advisory jurisdiction under Article 143, and its writ jurisdiction under Article 32 of the Constitution. While the top court is indeed overburdened with SLPs, it would not be correct to have to seek leave from the concerned High Courts or the Tribunals to even lodge an SLP.
Justice Govind Mathur is former Chief Justice of the Allahabad High Court; Sanjoy Ghose is a senior advocate based in Delhi
