National Court of Appeal
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EDITORIAL
CHENNAI
THE HINDU
SATURDAY, APRIL 9, 2016
Not a court of everyday appeals
saturday, april 9, 2016
Another killing
in Bangladesh
he death of one more secular activist in Bangladesh this week is a chilling reminder of the
unrelenting assault by Islamist groups on freedom of expression. Nazimuddin Samad was
returning from classes in Dhaka’s Jagannath University
when attackers waylaid him. They hacked his head with a
machete, and then shot him. In initial comments the police did not say whether Islamists were responsible, but it
is no accident that Samad’s name figured in a hit list of 84
Bangladeshi bloggers and activists compiled in 2013 and
sent anonymously to media organisations. The manner
of the 26-year-old law student’s murder bore close similarity to the death by machetes of four bloggers in 2015.
To reairm that Bangladesh is a secular republic, young
campaigners have taken the fight to Islamist groups in
multiple ways. They have braved threats from extremists
and carried on writing, in print and on social media platforms. They have also, importantly, mobilised tens of
thousands of Bangladeshis in seeking strict punishment
for Islamists implicated in war crimes in the nine months
leading up to the liberation of Bangladesh. These activists — mostly students and writers/bloggers — are at the
vanguard of the ongoing struggle to define the secular
and democratic nature of the Bangladeshi state, an issue
that has been acrimoniously contested by political parties, Islamists and the military since the 1971 war.
Upon her return to power in 2009, Prime Minister
Sheikh Hasina made the war crimes tribunal central to
the Awami League’s politics, and brought leaders of Islamist groups, notably the Jamaat-e-Islami, to trial for collaborating with the Pakistan army in war atrocities.
When a key Jamaat leader, Abdul Quader Mollah, was
handed life imprisonment, huge protests erupted in Dhaka’s Shahbag Square demanding that he be punished with
the death penalty. The protests, named the Shahbag
movement, called for accountability as well as returning
Bangladesh’s Constitution to its initial secular character.
It is reported, for instance, that Samad had participated in
the Shahbag protests. There is, however, anxiety that
Sheikh Hasina is using the war crimes issue not only to
secure the secular character of Bangladesh, but also to
consolidate her grip on power. There is a grain of truth in
the charge that she has been somewhat slow, inactive
even, in bringing those responsible for the threats and assaults on secular activists to book. She has used a variety
of measures to discredit her long-time rival, Khaleda Zia
of the Bangladesh Nationalist Party, and to target journalists and well-regarded civil society members such as
Grameen Bank founder Muhammad Yunus. Samad’s
death is a cautionary alert that the logical extension of
the purported fight to rescue the progressive vision of
the country’s founders is to assert its democratic ethos.
Bloggers cannot be the only opposition to extremism.
T
Much as Justice Felix
Frankfurter once said of the
U.S. Supreme Court, India’s
Supreme Court too is a “is a
very special kind of court”.
It is special because it acts
SUHRITH
PARTHASARATHY as a final court of appeal. It
is special because its decisions are determinative; its
pronouncements constitute the law of the
land. And it is very special because under our
political structure, the court acts as the ultimate arbiter on disputes concerning any interpretation of the Constitution. However, in
recent times, especially over the last two decades or so, the court’s ability to remain special, to retain its allure, has somewhat been
thwarted by the enormity of its burden.
Unlike its American counterpart, the Indian Supreme Court is a multifarious institution. It often tasks itself with ruling on run-ofthe-mill civil and criminal appeals. The
court’s docket, in fact, tends to burst with
seemingly mundane disputes. These tend to
include, to name but a few typical cases, rent
control quarrels between landlords and tenants, factual squabbles over tax assessments,
internal managerial rows concerning societies and trusts, and what not! As a result of entertaining these everyday appeals, which
have little bearing on the larger public interest, the court’s focus has wavered from what
many believe is its core task: deliberating on,
and settling, questions of pure constitutional
significance.
Easing the court’s burden
An oft-repeated suggestion aimed at correcting this perceived imbalance in the apex
court’s role is the establishment of a National
Court of Appeal (NCA) that would act as an
intermediate forum between the Supreme
Court and the various high courts of India. Although there is little scope under our country’s constitutional structure for the creation
of such a court, the idea has once again come
into vogue.
Recently, on a public interest litigation initiated by a Chennai-based lawyer, V. Vasanthakumar, demanding the establishment of
such an NCA, the Supreme Court not only ordered notice to the Union of India but also
proposed to refer questions of law concerning the establishment of such a court to a constitution bench of five judges. According to
its proponents, the NCA, which would be
headquartered in New Delhi, and which
would have diferent regional benches, would
relieve the Supreme Court of the weight of
hearing regular civil and criminal appeals, al-
A National Court of Appeal is being advocated as
an intermediate forum between the Supreme
Court and the various high courts of India. But a
better solution to ease the higher judiciary’s
burden may lie in strengthening that of the lower
lowing the court to concentrate on determining only fundamental questions of constitutional importance. Additionally, it has been
argued that the NCA’s regional benches
would allow greater access to litigants from
remote parts of the country, for whom the distance to New Delhi acts as a grave barrier to
justice. Although intuitively these arguments
present a cogent structural solution, in reality
they are unable to see the wood for the trees.
The issues besetting the Supreme Court, and
indeed the Indian judiciary as a collective
whole, are far too deep-rooted for the NCA to
represent the kind of panacea that it has been
made out to be. Quite contrary to what has
been suggested, to restore the Supreme
Court’s grandeur, the focus ought to be not on
altering the core structure of the judiciary,
the court’s total decisions. This has meant
that in spite of the specific precepts of Article
145(3) of the Constitution — which mandates
that a minimum of five judges sit for the purpose of deciding any case involving a substantial question of constitutional law — division benches of two judges have increasingly
decided important disputes requiring a nuanced interpretation of the Constitution.
For example, in December 2013, it was a
bench of two judges, in Suresh Kumar
Koushal v. Naz Foundation, which reversed
the Delhi High Court’s momentous judgment
declaring Section 377 of the Indian Penal
Code, insofar as it criminalised homosexuality, as unconstitutional. Similarly, when last
year in Shreya Singhal v. Union of India the
Supreme Court struck down the pernicious
If we work towards establishing a more robust subordinate
judiciary, it would not require most litigants
to approach the Supreme Court.
but in aiming to make changes that are more
pragmatic, that place an emphasis on the
strengthening of the base of India’s judicial
edifice.
The decline of constitution benches
It is undeniable that the Supreme Court’s
role as the Constitution’s sheet anchor has
been weakened in recent times. This dilution,
at least partly, owes to the court’s inability to
devote itself substantially to the determination of important public questions. As Nick
Robinson’s studies have demonstrated, the
number of cases decided by constitution
benches — benches comprising five or more
judges — has steadily declined right from the
Supreme Court’s inception. Between 1950
and 1954, almost 15 per cent of the total cases
decided by the Supreme Court were decisions of constitution benches. By the time the
1970s came around, this figure had dipped below one per cent. Between 2005 and 2009,
benches comprising five judges or more decided only a worryingly paltry 0.12 per cent of
Section 66A of the Information Technology
Act, in the process paving the way for a refined thinking on the right to free speech, it
was once again a bench of two judges that
rendered the verdict.
What we have, therefore, is a quite unusual
scheme of constitutionalism where any given
pair of two individuals is vested with the
enormous power of ruling conclusively on
significant matters of public importance.
This phenomenon — still relatively recent —
of rulings by two-judge benches in noteworthy cases has coincided with the court’s
mounting docket. What’s clearly evident is
that this manner of functioning is far from
what the Constitution’s framers envisaged of
the Supreme Court.
The apex court’s original mandate
Broadly, the Constitution prescribes to the
Supreme Court two types of jurisdiction: an
original jurisdiction — i.e. the power to entertain cases at the first instance — where fundamental rights have been violated, or where a
CARTOONSCAPE
Welcome waste
as new wealth
fter fighting a losing battle with the growing
tide of municipal waste, the Ministry of Environment and Forests has notified the new Solid Waste Management Rules, 2016 with clear
responsibilities assigned to various classes of consumers.
For these rules to have any significant impact, however,
the local bodies in charge of implementation should appeal to the rational impulses of communities — a small effort at segregating trash at source would be a good thing
for their household budgets. Cities and towns would then
have to provide the logistical chain to evacuate waste,
with a cash compensation system in place for the consumer. In the absence of such a system, the rules issued 16
years ago failed spectacularly. Urban municipal bodies
found it convenient to merely transport waste to the suburbs, sometimes through private agencies that secured lucrative long-term contracts. Policy failure is all too evident when Environment Minister Prakash Javadekar says
that the estimated 62 million tonnes of waste a year is not
fully collected or treated. Worryingly, it will go up to some
165 million tonnes in 2030, and dramatic episodes of air
and water pollution from mountains of garbage as seen in
Mumbai and Bengaluru in recent times could be witnessed in more places.
A productive start to containing the problem could be
made if urban governments show the political will to rein
in bulk generators of municipal solid waste. For instance,
the provisions in the new rules for hotels and restaurants
to support composting, or biomethanation, and for large
housing societies, commercial establishments and other
bulk producers to segregate waste, need to be rigorously
enforced. Cess funds collected for the Swachh Bharat programme could be deployed to scale up infrastructure for
composting, biomethanation and recycling, which Mr. Javadekar admits are grossly inadequate. Evidently, the
Centre and the State governments have not so far taken
the existing rules seriously: less than a third of the collected waste is being processed. Even where environmentally
conscious citizens segregate at source, the chain of management dumps it all in landfills. The central monitoring
committee under the Ministry should ensure that local
bodies do not continue functioning in business-as-usual
mode. They should align their operations, including
waste management contracts, with the new rules under
the annual operating plan. The Ministry should also enlist
the services of ragpickers under formal systems such as
cooperatives. Although there are provisions for fines for
littering and non-segregation, this should be a second-order priority for municipalities, which should focus principally on creating reliable systems to handle diferent
waste streams. If India could start with the separation of
its ‘wet’ waste from the rest and produce good compost,
that could transform cities and towns into clean and
green havens filled with trees, gardens, lakes and rivers. It
would also salvage millions of tonnes of recyclable plastic, precious metals and other materials. Garbology studies confirm that landfills swallow precious wealth every
day. The time has come to recover it.
A
CM
YK
State is involved in a dispute with another
State or with the Centre; and an appellate jurisdiction, where a case involving a substantial question of law requires adjudication, on
appeal. The court was therefore always seen
not merely as an arbiter of constitutional disputes, but also as a plenary body that would
settle the law of the land. However, by all accounts, the Constituent Assembly believed
the court would exercise great discretion in
choosing its own scope of work. The court
was not seen as a forum to argue over ordinary disputes between litigants that had no
larger public bearing. It was believed the lower judiciary and the various high courts
would be suiciently equipped to dispense
justice in these kinds of cases.
That the Supreme Court has today used the
pliability of its power to grant special leave to
often interfere in mundane disputes is therefore not a product of any structural problem,
but rather of a deliberate decision by the
court’s judges. Viewed thus, it is diicult to
understand how the creation of an NCA
would somehow ease the burden on the Supreme Court, allowing it to eschew its authority to grant special leave; this power was,
after all, always meant to be used only in exceptional cases, where a particular interpretation of a law required definite resolution.
A bottom-up approach needed
What the NCA is meant to do, therefore,
can quite easily be achieved by strengthening
the lower judiciary, which generally constitutes the courts of first instance. Correspondingly, as was always intended, the high courts
can be viewed as the regular — and, in most
cases, final — appellate court. No doubt, to
achieve this, it is necessary that there is greater rigour involved in choosing our judges. If
socially conscious and meritorious women
and men, who subscribe to the best constitutional values, are elevated as judges to our
subordinate judiciary and the high courts, the
idea of viewing the Supreme Court as a routine court of appeal can be renounced altogether. This would allow the Supreme Court
to be more discerning in its use of discretion,
thus substantially reducing its burden of acting as a corrector of simple errors. Moreover,
at the same time, at least two constitution
benches can be designated to hear cases
Monday through Friday, thereby solving
problems concerning the inability of the Supreme Court to devote itself to its most important duty.
Were we to tailor our solutions thus,
through a bottom-up approach, the purported diiculty of access to the Supreme Court
also begins to present itself as a red herring.
That the real issues of accessing justice relate
not to the Supreme Court but the lower judiciary becomes even more apparent through a
study of the latest figures released by the National Judicial Data Grid (NJDG). The data
show us that there is only one judge for every
73,000 people in India, a figure that is seven
times worse than the United States. And even
more staggeringly, at the present rate of functioning, according to the NJDG, civil cases
will never get fully disposed of, and it will
likely take more than 30 years to clear all the
criminal cases presently on the file of India’s
lower courts.
To think about making changes even to the
basic system of dispensing justice isn’t necessarily a bad thing. But what’s clear from the
NJDG data is that our judiciary isn’t broken
because of any deficiencies in structure, but
rather because of the feeble infrastructure
that we have installed to support our justice
delivery system. If we work towards establishing a more robust subordinate judiciary, it
would not only negate any requirement on
the part of most litigants to approach the Supreme Court, but it would also free the court
of its shackles, allowing it to possibly regain
its constitutionally ordained sense of majesty.
Suhrith Parthasarathy is an advocate practising at
the Madras High Court. He is also currently working
on a biography of the Supreme Court.
LETTERS TO THE EDITOR
Court order to Mallya
The Supreme Court’s order to
Kingfisher Airlines Chairman
Vijay Mallya to disclose under oath
the assets he holds (April 8) is some
consolation to the taxpaying public
that the wealthy cannot escape the
long arm of the law. Many of us
have been dismayed by the way
poor farmers have been treated
after they have defaulted on loans,
an example being Balan of Tamil
Nadu who was ill-treated by bank
oicials. One waits to see what
happens on April 21, which is
reasonable enough time for the
businessman to submit all details.
Meenakshi Pattabiraman,
Madurai
After thaw, it’s frost again
Pakistan envoy Abdul Basit’s stand
is surprising (“Pak. envoy accuses
India of suspending dialogue”,
April 8). It seems that certain
sections in Pakistan are bent on
sabotaging any sort of engagement
between the two countries. All the
bonhomie created with Narendra
Modi’s surprise visit to Pakistan
and subsequent developments
now stand eroded after this sudden
volte face. While Nawaz Sharif is
weighed down by forces inimical
to India, Mr. Modi is clearly under
pressure from the right wing not to
mend fences with Pakistan.
J. Anantha Padmanabhan,
Tiruchi
The world is aware of how Pakistan
keeps changing its colours despite
India going the extra mile in
extending it cooperation. Earlier,
other countries used to condemn
every terrorist attack but now it is
no longer so — as long as they are
not directly afected. Even at
Letters emailed to [email protected] must carry the full postal address and the full name or the name with initials.
summits, no country appears
willing to commit its resources to
fighting terror on behalf of afected
countries. Pakistan does not
appear to see anything beyond
Kashmir. How long can it remain
blinkered?
K.V. Seetharamaiah,
Hassan, Karnataka
When it comes to seeking
cooperation from Pakistan in
investigating acts of terror on our
soil that are attributed to it, one can
almost predict this — that it will
end up in Pakistan sabotaging such
cooperation. Mr. Basit’s accusation
is to be seen in the larger context of
Islamabad’s policy of preventing
any
meaningful
anti-terror
investigation that might eventually
establish
and
expose
the
complicity
of
its
own
establishment in encouraging and
supporting such attacks. China is
also getting closer to Pakistan for a
variety of reasons while the U.S.’s
stand on Pakistan-sponsored acts
of terror is increasingly becoming
quite ambivalent.
Mr. Modi ought to take note of
this hard reality and recast his
policies towards Pakistan with
greater maturity and shorn of any
showmanship and grandstanding.
He must also learn to evolve
national consensus on various
options open to us by taking the
Opposition and strategic thinkers
into confidence.
S.K. Choudhury,
Bengaluru
One can take a horse to water but
you can’t make him drink;
similarly, the Prime Minister is
taking all steps to have cordial
relations with the Pakistan but the
latter does not seem to reciprocate.
Any right-thinking person is bound
to be upset with the negative
attitude of people at the helm of
afairs in Pakistan in not working
sincerely to usher in peace. Even
the common man with hardly any
knowledge of foreign afairs knows
that Pakistan is a hard nut to crack.
H.P. Murali,
Bengaluru
The
abrupt
backtracking
underscores the limitations of the
Prime Minister’s personalitycentric approach to foreign policy
issues vis-à-vis Pakistan where
multiple power centres operate.
The Prime Minister should avoid
the tendency for instinctive
responses and instead draw upon
considerable
professional
expertise available in the country
to formulate a nuanced approach
to India-Pakistan relations. An
overwhelming desire for personal
glory that a dramatic breakthrough
can bring appears to have clouded
Mr. Modi’s judgment.
Manohar Alembath,
Kannur
At UN, China’s veto
China’s “technical hold” is bound
to give a major fillip to Masood
Azhar to plan and execute further
attacks on India. The provision of
unanimity has been misused by
China overriding the irrefutable
evidence that India has on Masood
Azhar’s involvement. Also, China’s
stance is an indication of its
doublespeak on terror vis-à-vis the
East Turkestan Independence
Movement and the LeT-JeM-UJC
trinity. With India-China relations
on the security front being
cautiously fragile at best, India’s
takeaways from the Chinese veto
(Editorial, April 8) should be that
China will continually use the
“technical hold” to ensure that the
victims of Pakistan-sponsored
terror will never get justice. But we
must persevere — the government
must not only engage with Beijing
and Islamabad but also strengthen
its security and intelligence
apparatus to ensure that we are
covered.
Akshay Viswanathan,
Thiruvananthapuram
A major drawback in India’s
foreign policy is that it has many
friends but none which can be
called “close”. India has depended
too much on logic and its record of
peaceful conduct to impress the
world, but this has little use in
realpolitik. India’s global strategy
is complicated by the fact that both
Pakistan and China have vested
interests in keeping India’s borders
in a constant state of tension
(Editorial, April 8).
Y.G. Chouksey,
Pune
China’s bid will only dampen the
spirit to crush terror. Its ainity to
Pakistan on development issues is
not bad but on an issue like fighting
terror, ill-thought-out moves will
only prove counterproductive.
Amarnath Upadhyay,
Varanasi
IIT fee hike
The report on the IITs raising
tuition fees (April 8) must be read
in conjunction with the Editorial
(April 8) which shows that the
education system is fast mirroring
show business, where earnings
supersede the values bestowed
through education. In this issue,
what has not been addressed at all
is how in premium education, the
creamy layer reaches optimal
levels, migrates to greener pastures
and is then least willing to serve the
motherland. The waiver of fees for
the underprivileged is nothing but
a political gimmick. What purpose
does the enhancement serve? The
upper layer would not mind paying
even more. Why is it not made
mandatory for these young
brilliant minds to serve the first
decade of their professional lives in
India?
Balasubramaniam Pavani,
Secunderabad
IPL and water use
The controversy over the use of
scarce water during the IPL
matches is linked to a valid claim
that millions of litres could be of
critical use to support people’s
needs (“No stay on IPL inaugural
match”, April 8). The way out of
this is for the cash-rich BCCI, in
association
with
the
State
government, to take the initiative
in providing easier and regular
ways for the public to access water.
This it must do under CSR. If
adequately publicised, it will cut
the opposition to IPL matches that
is being voiced by some sections.
S. Kamat,
Alto Santa Cruz, Goa
The plight of those who are waterstarved in Latur has hardly
received media attention. On the
one hand we speak about water
conservation but on the other we
hardly plan water use. When the
BCCI has so much money, why
can’t it treat and use sewage and
eluent water? We do need
sporting events, but life comes
first.
Kendre Narsing Manikrao,
Latur, Maharashtra
CH-CH
EDITORIAL
CHENNAI
THE HINDU
SATURDAY, APRIL 9, 2016
Not a court of everyday appeals
saturday, april 9, 2016
Another killing
in Bangladesh
he death of one more secular activist in Bangladesh this week is a chilling reminder of the
unrelenting assault by Islamist groups on freedom of expression. Nazimuddin Samad was
returning from classes in Dhaka’s Jagannath University
when attackers waylaid him. They hacked his head with a
machete, and then shot him. In initial comments the police did not say whether Islamists were responsible, but it
is no accident that Samad’s name figured in a hit list of 84
Bangladeshi bloggers and activists compiled in 2013 and
sent anonymously to media organisations. The manner
of the 26-year-old law student’s murder bore close similarity to the death by machetes of four bloggers in 2015.
To reairm that Bangladesh is a secular republic, young
campaigners have taken the fight to Islamist groups in
multiple ways. They have braved threats from extremists
and carried on writing, in print and on social media platforms. They have also, importantly, mobilised tens of
thousands of Bangladeshis in seeking strict punishment
for Islamists implicated in war crimes in the nine months
leading up to the liberation of Bangladesh. These activists — mostly students and writers/bloggers — are at the
vanguard of the ongoing struggle to define the secular
and democratic nature of the Bangladeshi state, an issue
that has been acrimoniously contested by political parties, Islamists and the military since the 1971 war.
Upon her return to power in 2009, Prime Minister
Sheikh Hasina made the war crimes tribunal central to
the Awami League’s politics, and brought leaders of Islamist groups, notably the Jamaat-e-Islami, to trial for collaborating with the Pakistan army in war atrocities.
When a key Jamaat leader, Abdul Quader Mollah, was
handed life imprisonment, huge protests erupted in Dhaka’s Shahbag Square demanding that he be punished with
the death penalty. The protests, named the Shahbag
movement, called for accountability as well as returning
Bangladesh’s Constitution to its initial secular character.
It is reported, for instance, that Samad had participated in
the Shahbag protests. There is, however, anxiety that
Sheikh Hasina is using the war crimes issue not only to
secure the secular character of Bangladesh, but also to
consolidate her grip on power. There is a grain of truth in
the charge that she has been somewhat slow, inactive
even, in bringing those responsible for the threats and assaults on secular activists to book. She has used a variety
of measures to discredit her long-time rival, Khaleda Zia
of the Bangladesh Nationalist Party, and to target journalists and well-regarded civil society members such as
Grameen Bank founder Muhammad Yunus. Samad’s
death is a cautionary alert that the logical extension of
the purported fight to rescue the progressive vision of
the country’s founders is to assert its democratic ethos.
Bloggers cannot be the only opposition to extremism.
T
Much as Justice Felix
Frankfurter once said of the
U.S. Supreme Court, India’s
Supreme Court too is a “is a
very special kind of court”.
It is special because it acts
SUHRITH
PARTHASARATHY as a final court of appeal. It
is special because its decisions are determinative; its
pronouncements constitute the law of the
land. And it is very special because under our
political structure, the court acts as the ultimate arbiter on disputes concerning any interpretation of the Constitution. However, in
recent times, especially over the last two decades or so, the court’s ability to remain special, to retain its allure, has somewhat been
thwarted by the enormity of its burden.
Unlike its American counterpart, the Indian Supreme Court is a multifarious institution. It often tasks itself with ruling on run-ofthe-mill civil and criminal appeals. The
court’s docket, in fact, tends to burst with
seemingly mundane disputes. These tend to
include, to name but a few typical cases, rent
control quarrels between landlords and tenants, factual squabbles over tax assessments,
internal managerial rows concerning societies and trusts, and what not! As a result of entertaining these everyday appeals, which
have little bearing on the larger public interest, the court’s focus has wavered from what
many believe is its core task: deliberating on,
and settling, questions of pure constitutional
significance.
Easing the court’s burden
An oft-repeated suggestion aimed at correcting this perceived imbalance in the apex
court’s role is the establishment of a National
Court of Appeal (NCA) that would act as an
intermediate forum between the Supreme
Court and the various high courts of India. Although there is little scope under our country’s constitutional structure for the creation
of such a court, the idea has once again come
into vogue.
Recently, on a public interest litigation initiated by a Chennai-based lawyer, V. Vasanthakumar, demanding the establishment of
such an NCA, the Supreme Court not only ordered notice to the Union of India but also
proposed to refer questions of law concerning the establishment of such a court to a constitution bench of five judges. According to
its proponents, the NCA, which would be
headquartered in New Delhi, and which
would have diferent regional benches, would
relieve the Supreme Court of the weight of
hearing regular civil and criminal appeals, al-
A National Court of Appeal is being advocated as
an intermediate forum between the Supreme
Court and the various high courts of India. But a
better solution to ease the higher judiciary’s
burden may lie in strengthening that of the lower
lowing the court to concentrate on determining only fundamental questions of constitutional importance. Additionally, it has been
argued that the NCA’s regional benches
would allow greater access to litigants from
remote parts of the country, for whom the distance to New Delhi acts as a grave barrier to
justice. Although intuitively these arguments
present a cogent structural solution, in reality
they are unable to see the wood for the trees.
The issues besetting the Supreme Court, and
indeed the Indian judiciary as a collective
whole, are far too deep-rooted for the NCA to
represent the kind of panacea that it has been
made out to be. Quite contrary to what has
been suggested, to restore the Supreme
Court’s grandeur, the focus ought to be not on
altering the core structure of the judiciary,
the court’s total decisions. This has meant
that in spite of the specific precepts of Article
145(3) of the Constitution — which mandates
that a minimum of five judges sit for the purpose of deciding any case involving a substantial question of constitutional law — division benches of two judges have increasingly
decided important disputes requiring a nuanced interpretation of the Constitution.
For example, in December 2013, it was a
bench of two judges, in Suresh Kumar
Koushal v. Naz Foundation, which reversed
the Delhi High Court’s momentous judgment
declaring Section 377 of the Indian Penal
Code, insofar as it criminalised homosexuality, as unconstitutional. Similarly, when last
year in Shreya Singhal v. Union of India the
Supreme Court struck down the pernicious
If we work towards establishing a more robust subordinate
judiciary, it would not require most litigants
to approach the Supreme Court.
but in aiming to make changes that are more
pragmatic, that place an emphasis on the
strengthening of the base of India’s judicial
edifice.
The decline of constitution benches
It is undeniable that the Supreme Court’s
role as the Constitution’s sheet anchor has
been weakened in recent times. This dilution,
at least partly, owes to the court’s inability to
devote itself substantially to the determination of important public questions. As Nick
Robinson’s studies have demonstrated, the
number of cases decided by constitution
benches — benches comprising five or more
judges — has steadily declined right from the
Supreme Court’s inception. Between 1950
and 1954, almost 15 per cent of the total cases
decided by the Supreme Court were decisions of constitution benches. By the time the
1970s came around, this figure had dipped below one per cent. Between 2005 and 2009,
benches comprising five judges or more decided only a worryingly paltry 0.12 per cent of
Section 66A of the Information Technology
Act, in the process paving the way for a refined thinking on the right to free speech, it
was once again a bench of two judges that
rendered the verdict.
What we have, therefore, is a quite unusual
scheme of constitutionalism where any given
pair of two individuals is vested with the
enormous power of ruling conclusively on
significant matters of public importance.
This phenomenon — still relatively recent —
of rulings by two-judge benches in noteworthy cases has coincided with the court’s
mounting docket. What’s clearly evident is
that this manner of functioning is far from
what the Constitution’s framers envisaged of
the Supreme Court.
The apex court’s original mandate
Broadly, the Constitution prescribes to the
Supreme Court two types of jurisdiction: an
original jurisdiction — i.e. the power to entertain cases at the first instance — where fundamental rights have been violated, or where a
CARTOONSCAPE
Welcome waste
as new wealth
fter fighting a losing battle with the growing
tide of municipal waste, the Ministry of Environment and Forests has notified the new Solid Waste Management Rules, 2016 with clear
responsibilities assigned to various classes of consumers.
For these rules to have any significant impact, however,
the local bodies in charge of implementation should appeal to the rational impulses of communities — a small effort at segregating trash at source would be a good thing
for their household budgets. Cities and towns would then
have to provide the logistical chain to evacuate waste,
with a cash compensation system in place for the consumer. In the absence of such a system, the rules issued 16
years ago failed spectacularly. Urban municipal bodies
found it convenient to merely transport waste to the suburbs, sometimes through private agencies that secured lucrative long-term contracts. Policy failure is all too evident when Environment Minister Prakash Javadekar says
that the estimated 62 million tonnes of waste a year is not
fully collected or treated. Worryingly, it will go up to some
165 million tonnes in 2030, and dramatic episodes of air
and water pollution from mountains of garbage as seen in
Mumbai and Bengaluru in recent times could be witnessed in more places.
A productive start to containing the problem could be
made if urban governments show the political will to rein
in bulk generators of municipal solid waste. For instance,
the provisions in the new rules for hotels and restaurants
to support composting, or biomethanation, and for large
housing societies, commercial establishments and other
bulk producers to segregate waste, need to be rigorously
enforced. Cess funds collected for the Swachh Bharat programme could be deployed to scale up infrastructure for
composting, biomethanation and recycling, which Mr. Javadekar admits are grossly inadequate. Evidently, the
Centre and the State governments have not so far taken
the existing rules seriously: less than a third of the collected waste is being processed. Even where environmentally
conscious citizens segregate at source, the chain of management dumps it all in landfills. The central monitoring
committee under the Ministry should ensure that local
bodies do not continue functioning in business-as-usual
mode. They should align their operations, including
waste management contracts, with the new rules under
the annual operating plan. The Ministry should also enlist
the services of ragpickers under formal systems such as
cooperatives. Although there are provisions for fines for
littering and non-segregation, this should be a second-order priority for municipalities, which should focus principally on creating reliable systems to handle diferent
waste streams. If India could start with the separation of
its ‘wet’ waste from the rest and produce good compost,
that could transform cities and towns into clean and
green havens filled with trees, gardens, lakes and rivers. It
would also salvage millions of tonnes of recyclable plastic, precious metals and other materials. Garbology studies confirm that landfills swallow precious wealth every
day. The time has come to recover it.
A
CM
YK
State is involved in a dispute with another
State or with the Centre; and an appellate jurisdiction, where a case involving a substantial question of law requires adjudication, on
appeal. The court was therefore always seen
not merely as an arbiter of constitutional disputes, but also as a plenary body that would
settle the law of the land. However, by all accounts, the Constituent Assembly believed
the court would exercise great discretion in
choosing its own scope of work. The court
was not seen as a forum to argue over ordinary disputes between litigants that had no
larger public bearing. It was believed the lower judiciary and the various high courts
would be suiciently equipped to dispense
justice in these kinds of cases.
That the Supreme Court has today used the
pliability of its power to grant special leave to
often interfere in mundane disputes is therefore not a product of any structural problem,
but rather of a deliberate decision by the
court’s judges. Viewed thus, it is diicult to
understand how the creation of an NCA
would somehow ease the burden on the Supreme Court, allowing it to eschew its authority to grant special leave; this power was,
after all, always meant to be used only in exceptional cases, where a particular interpretation of a law required definite resolution.
A bottom-up approach needed
What the NCA is meant to do, therefore,
can quite easily be achieved by strengthening
the lower judiciary, which generally constitutes the courts of first instance. Correspondingly, as was always intended, the high courts
can be viewed as the regular — and, in most
cases, final — appellate court. No doubt, to
achieve this, it is necessary that there is greater rigour involved in choosing our judges. If
socially conscious and meritorious women
and men, who subscribe to the best constitutional values, are elevated as judges to our
subordinate judiciary and the high courts, the
idea of viewing the Supreme Court as a routine court of appeal can be renounced altogether. This would allow the Supreme Court
to be more discerning in its use of discretion,
thus substantially reducing its burden of acting as a corrector of simple errors. Moreover,
at the same time, at least two constitution
benches can be designated to hear cases
Monday through Friday, thereby solving
problems concerning the inability of the Supreme Court to devote itself to its most important duty.
Were we to tailor our solutions thus,
through a bottom-up approach, the purported diiculty of access to the Supreme Court
also begins to present itself as a red herring.
That the real issues of accessing justice relate
not to the Supreme Court but the lower judiciary becomes even more apparent through a
study of the latest figures released by the National Judicial Data Grid (NJDG). The data
show us that there is only one judge for every
73,000 people in India, a figure that is seven
times worse than the United States. And even
more staggeringly, at the present rate of functioning, according to the NJDG, civil cases
will never get fully disposed of, and it will
likely take more than 30 years to clear all the
criminal cases presently on the file of India’s
lower courts.
To think about making changes even to the
basic system of dispensing justice isn’t necessarily a bad thing. But what’s clear from the
NJDG data is that our judiciary isn’t broken
because of any deficiencies in structure, but
rather because of the feeble infrastructure
that we have installed to support our justice
delivery system. If we work towards establishing a more robust subordinate judiciary, it
would not only negate any requirement on
the part of most litigants to approach the Supreme Court, but it would also free the court
of its shackles, allowing it to possibly regain
its constitutionally ordained sense of majesty.
Suhrith Parthasarathy is an advocate practising at
the Madras High Court. He is also currently working
on a biography of the Supreme Court.
LETTERS TO THE EDITOR
Court order to Mallya
The Supreme Court’s order to
Kingfisher Airlines Chairman
Vijay Mallya to disclose under oath
the assets he holds (April 8) is some
consolation to the taxpaying public
that the wealthy cannot escape the
long arm of the law. Many of us
have been dismayed by the way
poor farmers have been treated
after they have defaulted on loans,
an example being Balan of Tamil
Nadu who was ill-treated by bank
oicials. One waits to see what
happens on April 21, which is
reasonable enough time for the
businessman to submit all details.
Meenakshi Pattabiraman,
Madurai
After thaw, it’s frost again
Pakistan envoy Abdul Basit’s stand
is surprising (“Pak. envoy accuses
India of suspending dialogue”,
April 8). It seems that certain
sections in Pakistan are bent on
sabotaging any sort of engagement
between the two countries. All the
bonhomie created with Narendra
Modi’s surprise visit to Pakistan
and subsequent developments
now stand eroded after this sudden
volte face. While Nawaz Sharif is
weighed down by forces inimical
to India, Mr. Modi is clearly under
pressure from the right wing not to
mend fences with Pakistan.
J. Anantha Padmanabhan,
Tiruchi
The world is aware of how Pakistan
keeps changing its colours despite
India going the extra mile in
extending it cooperation. Earlier,
other countries used to condemn
every terrorist attack but now it is
no longer so — as long as they are
not directly afected. Even at
Letters emailed to [email protected] must carry the full postal address and the full name or the name with initials.
summits, no country appears
willing to commit its resources to
fighting terror on behalf of afected
countries. Pakistan does not
appear to see anything beyond
Kashmir. How long can it remain
blinkered?
K.V. Seetharamaiah,
Hassan, Karnataka
When it comes to seeking
cooperation from Pakistan in
investigating acts of terror on our
soil that are attributed to it, one can
almost predict this — that it will
end up in Pakistan sabotaging such
cooperation. Mr. Basit’s accusation
is to be seen in the larger context of
Islamabad’s policy of preventing
any
meaningful
anti-terror
investigation that might eventually
establish
and
expose
the
complicity
of
its
own
establishment in encouraging and
supporting such attacks. China is
also getting closer to Pakistan for a
variety of reasons while the U.S.’s
stand on Pakistan-sponsored acts
of terror is increasingly becoming
quite ambivalent.
Mr. Modi ought to take note of
this hard reality and recast his
policies towards Pakistan with
greater maturity and shorn of any
showmanship and grandstanding.
He must also learn to evolve
national consensus on various
options open to us by taking the
Opposition and strategic thinkers
into confidence.
S.K. Choudhury,
Bengaluru
One can take a horse to water but
you can’t make him drink;
similarly, the Prime Minister is
taking all steps to have cordial
relations with the Pakistan but the
latter does not seem to reciprocate.
Any right-thinking person is bound
to be upset with the negative
attitude of people at the helm of
afairs in Pakistan in not working
sincerely to usher in peace. Even
the common man with hardly any
knowledge of foreign afairs knows
that Pakistan is a hard nut to crack.
H.P. Murali,
Bengaluru
The
abrupt
backtracking
underscores the limitations of the
Prime Minister’s personalitycentric approach to foreign policy
issues vis-à-vis Pakistan where
multiple power centres operate.
The Prime Minister should avoid
the tendency for instinctive
responses and instead draw upon
considerable
professional
expertise available in the country
to formulate a nuanced approach
to India-Pakistan relations. An
overwhelming desire for personal
glory that a dramatic breakthrough
can bring appears to have clouded
Mr. Modi’s judgment.
Manohar Alembath,
Kannur
At UN, China’s veto
China’s “technical hold” is bound
to give a major fillip to Masood
Azhar to plan and execute further
attacks on India. The provision of
unanimity has been misused by
China overriding the irrefutable
evidence that India has on Masood
Azhar’s involvement. Also, China’s
stance is an indication of its
doublespeak on terror vis-à-vis the
East Turkestan Independence
Movement and the LeT-JeM-UJC
trinity. With India-China relations
on the security front being
cautiously fragile at best, India’s
takeaways from the Chinese veto
(Editorial, April 8) should be that
China will continually use the
“technical hold” to ensure that the
victims of Pakistan-sponsored
terror will never get justice. But we
must persevere — the government
must not only engage with Beijing
and Islamabad but also strengthen
its security and intelligence
apparatus to ensure that we are
covered.
Akshay Viswanathan,
Thiruvananthapuram
A major drawback in India’s
foreign policy is that it has many
friends but none which can be
called “close”. India has depended
too much on logic and its record of
peaceful conduct to impress the
world, but this has little use in
realpolitik. India’s global strategy
is complicated by the fact that both
Pakistan and China have vested
interests in keeping India’s borders
in a constant state of tension
(Editorial, April 8).
Y.G. Chouksey,
Pune
China’s bid will only dampen the
spirit to crush terror. Its ainity to
Pakistan on development issues is
not bad but on an issue like fighting
terror, ill-thought-out moves will
only prove counterproductive.
Amarnath Upadhyay,
Varanasi
IIT fee hike
The report on the IITs raising
tuition fees (April 8) must be read
in conjunction with the Editorial
(April 8) which shows that the
education system is fast mirroring
show business, where earnings
supersede the values bestowed
through education. In this issue,
what has not been addressed at all
is how in premium education, the
creamy layer reaches optimal
levels, migrates to greener pastures
and is then least willing to serve the
motherland. The waiver of fees for
the underprivileged is nothing but
a political gimmick. What purpose
does the enhancement serve? The
upper layer would not mind paying
even more. Why is it not made
mandatory for these young
brilliant minds to serve the first
decade of their professional lives in
India?
Balasubramaniam Pavani,
Secunderabad
IPL and water use
The controversy over the use of
scarce water during the IPL
matches is linked to a valid claim
that millions of litres could be of
critical use to support people’s
needs (“No stay on IPL inaugural
match”, April 8). The way out of
this is for the cash-rich BCCI, in
association
with
the
State
government, to take the initiative
in providing easier and regular
ways for the public to access water.
This it must do under CSR. If
adequately publicised, it will cut
the opposition to IPL matches that
is being voiced by some sections.
S. Kamat,
Alto Santa Cruz, Goa
The plight of those who are waterstarved in Latur has hardly
received media attention. On the
one hand we speak about water
conservation but on the other we
hardly plan water use. When the
BCCI has so much money, why
can’t it treat and use sewage and
eluent water? We do need
sporting events, but life comes
first.
Kendre Narsing Manikrao,
Latur, Maharashtra
CH-CH
