Decided on July 13,2016

V. Vasanthakumar Appellant
H.C.Bhatia And Ors. Respondents


- (1.) This petition, filed in public interest, raises questions touching possible structural reforms at the highest echelons of the Indian judicial system. Similar questions have been addressed in the past not only by the Law Commission but also by this Court on the judicial side. We may briefly refer to the same to place the issues that fall for determination in proper perspective.
(2.) In its 14th Report dated 26th September, 1958, the Law Commission of India advocated the need for a restrained approach towards grant of special leaves to appeal against judgments and orders passed by the High Courts. The Commission felt that a liberal grant of leave to appeal had the tendency to adversely affect the prestige of the High Courts. It said: "(13) Although the exercise of the jurisdiction under Article 136 of the Constitution by the Supreme Court in criminal matters sometimes serves to prevent injustice, yet the Court might be more chary of granting special leave in such matters as the practice of granting special leave freely has a tendency to affect the prestige of the High Courts."
(3.) Then came the 95th report dated 1st March, 1984 in which the Law Commission proposed the setting up of a Constitutional Division within the Supreme Court, in the following words: "6.4 If the proposed constitutional division is to be created, it will have to be assigned a part of the business of the Supreme Court within its jurisdiction as at present provided. The second issue that falls to be considered is, what matters should be assigned to that division. In this connection, there are two principal alternatives to be considered as per (a) and (b) below: (a) This division may be entrusted with the adjudication of all public law cases within the Supreme Court's jurisdiction. If this alternative is accepted, its jurisdiction would comprise (i) every case involving a substantial question of law as to the interpretation of the Constitution, or an order or rule issued under the Constitution; (ii) every case involving a question of Constitutional law, not falling within (1) above; (iii) every appeal against the decision of a High Court, rendered under Article 226 of the Constitution; (iv) every appeal against the decision of a tribunal under article 136 of the Constitution (whether such tribunal is created by law passed by virtue of article 323-A or Article 323-B of the Constitution or otherwise), where a question of administrative law is involved. (b) In the alternative, only matters of Constitutional law may be assigned to the proposed Constitutional Division. If this alternative is accepted, its jurisdiction would only the items (i) and (ii) mentioned in (a) above. The jurisdiction would then cover only the following: (i) every case involving a substantial question of law as to the interpretation of the Constitution or an order or rule issued under the Constitution, and (ii) every case involving a question of constitutional law, not falling within (i) above. Our preference is for alternative (b) above. It is easier to define precisely and locate such matters, confined to constitutional law proper. We appreciate that question of constitutional and administrative law often dovetail into each other, particularly in proceedings under article 226 of the Constitution (which may reach the Supreme Court on appeal). But, in our opinion, it would be desirable to make the jurisdiction of the proposed division narrow and compact, at least for the present. Accordingly, we recommend that the proposed Constitutional Division of the Supreme Court should be entrusted with the cases of the nature mentioned in alternative (b) above. It follows that other matters coming to the Supreme Court will be assigned to its Legal Division. 6.5. Of course, the creation of two divisions in the abstract does not end the matter. For practical implementation of the proposed scheme, it will be necessary to deal with at least two concrete matters, namely, (1) when can a constitutional issue be said to be "involved" and (ii) what will be the machinery for allocating cases between two divisions. As to the first matter, which relates to the criterion to be adopted, we should make it clear that a case should be regarded as "involving a" constitutional issue only when the decision of that issue is absolutely necessary for the disposal of the controversy. The mere fact that a party has raised a constitutional issue is not enough. Although, it may not always be possible to determine at the outset (at the time of allocation of the case), whether the case "involves" a constitutional issue in the above sense, it may still be useful to bear this aspect in mind";

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