Divide and Unite: Decentralizing the Judiciary

Way back in 1773 when Jonathan Sturges (a Justice of Peace at Fairfield County, Ohio) sat on the bench, he remarked quite nonchalantly,

"Justice is open to everyone in the same way as the Ritz Hotel."

Why then is ‘Justice’ limited to the rich? More importantly, why is access to ‘Justice’ limited to one place? Why should a lower middle class retired individual, travel all the way from a remote jurisdiction in Tamil Nadu to New Delhi to access the highest court of the land?

This is neither a new debate nor an innovative one. The novel Coronavirus has forced individuals, companies, recruiters, legislators, families and everyone on planet Earth to re-think life as they knew it. The judiciary in India similarly adopted practices that were unheard of to lawyers and the common public – virtual hearings, e-filings (although this was pre-existing much before the pandemic in some jurisdictions). However, then again, access to such practices is also limited to only a few lawyers and individuals. If one were to look at the practices before the pandemic, those were limited to New Delhi and Mumbai.

The centralization of the judicial system in India triggers many issues: Why should any new Tribunal be set up only in New Delhi? Why are Appellate Tribunals still based out of Delhi alone? Why should the apex court still reside only in New Delhi? Do other states not contribute to the growth of the judiciary? Are other states not capable of handling the presence of the apex court? Or, are lawyers in other States not qualified enough to address arguments before the highest court? These are some questions that need answering, not just by the top court, but also by the three legs of the Constitution – the Executive, the Legislature and the Judiciary.

Over the years, India has accustomed itself to an adversarial justice system that hinges on courts or tribunals’ geographical locations. The Constitution of India accords a noble and pivotal role to the judiciary. Therefore, access to justice under the common law regime is a fundamental right available to all citizens. While India does not follow the ‘dual judiciary’ approach (like in the United States of America), this sometimes obstructs a litigant’s right to approach the apex court or Appellate Tribunals due to their geographical locations, primarily, New Delhi.

Many lawyers, including the author, started their law practice in New Delhi. It is an unwritten rule that to excel as a lawyer, one must practice in the courts of New Delhi, irrespective of one’s legal education. This fact is down to the access to courts and areas of practice, which are relatively broader in the capital than in other jurisdictions. This penned down personal-professional commentary is to revisit the aspect of decentralization of the judiciary.

While we look at the history of the judicial model in India, we will also review and compare it with other federal structures worldwide. As a disclaimer, while the author is proud to be associated with India as a concept and as a whole, the article is intended to question the notion of the centralization system. Do we really need a ‘Republic of South India’ or is there still a minuscule opportunity to change the system?

In 1986, the apex court believed that the opening of its branches must be left in the hands of the government. However, the 229^th Law Commission Report canvassed for the division of the apex court into four regional benches. The same was tabled before Parliament, but no debate was ever witnessed.

This article yearns for decentralization of the judicial system in India and setting up of regional benches. We take into account the significant legal contributions made by India's southern states and the quick dispensation of prolonged cases as a base and benchmark to rank the role played by the southern states towards contributions to the judiciary.

Background of India’s Federal Structure

India’s federal system is largely known to follow ‘cooperative federalism’, i.e., various states co-operate amongst each other and the Centre, for the sole purpose of achieving simultaneous growth and development of the States and the nation. Drawing lines, however, can and has been difficult. The Constitution of India lays out three lists with subjects that can be legislated by the Centre, the State or both (commonly known as Union List, State List and Concurrent List). The Constitution also empowers the Centre to legislate on subjects exclusively under the State List, when the matter is of “national importance” or when the Centre declares Emergency in the State and takes over the State’s administration through President’s rule.

In the words of eminent academic Professor Wheare, the Indian system is ‘quasi-federal’, one of the reasons being the degree of autonomy enjoyed by the State governments. This does not meet the ideal federal system concept or one that exists, for instance, in the United States of America. However, eminent jurist Durga Das Basu has remarked that the system is "neither purely unitary nor purely federal but a combination of both"[1]. Some of the federal system features are division of power, a dual system of government, and autonomous units in terms of states or provinces. The Indian federal structure is based on a single Constitution for the country, with most aspects of power-sharing covered under the Constitution.

A short dive into history would help us at this stage. Most of us are aware that several enactments were formulated in India during the freedom struggle and the transition from the Crown to the Republic of India. First, the Government of India Act, 1919 initially laid down the federal set up of governments both at the Centre and the Provinces. These reforms were brought into effect from 1920 onwards. With time, the Government of India Act, 1935 gave a detailed structure for the same. Both these Acts combined played a predominant role in the making of the present-day Constitution.

The 1935 Act framed a structure for making a transitional shift of power from the British government to the Indian government. This Act also laid down the aspects of union of autonomous units and dual government, which is the basic idea behind federalism.[2] The Act took into account British Indian Provinces, Chief Commissioner Provinces and the Indian States as units. Essentially, the pre-independence era involved breaking up a unitary state into several autonomous provinces to derive their authority from the Crown. Thus, centralization as a concept has been in existence for nearly 408 years in India, which was re-iterated rather in detail in the 1935 Act.

The Federation of India could not have been operationalized until a specified number of rulers of the States agreed to join. At the point when the Constitution was being framed, albeit the British administration heavily influenced many parts of the nation, numerous zones were regulated as Princely States in India. Since these Princely States' geographical areas were vast, it was necessary to put an end to their proliferation as it would have led to disintegrating the State. Thus, these Princely States were accessioned through the ‘Instrument of Succession’.

Post-Independence, until 1949, these Princely States lost most of their independence. The purpose behind the same was to have a unified boundary and, along with it, bring democratic reforms and transfer significant powers in the hands of the Central government.

The present-day federal structure was first considered in the Simon Commission Report when it stated that the Indian Constitution cannot be unitary and must be federal.[3] The reason for the same as per the Report was the considerable diversity in the constituents of the provincial units, which can only be managed with a certain degree of internal autonomy within these administration units. Also, a unitary system of a government run from Delhi would have proven impractical, as it would destroy the unity of the States in India, which would not be able to develop a vigorous and independent political life of their own. The federal structure was also adopted so that there can be certainty on policies where unity among the States on certain subjects would be important, such as Direct and Indirect Taxation.

The Indian federal system is poles apart from the one in the United States of America. The Indian Constitution is a unified one for the entire country as against the US model, wherein apart from a Central Constitution, the States also have the liberty of having their own Constitution. The US Constitution is also narrower and far more rigid than the Indian Constitution, given the limited number of grounds it covers and the fact that the US Constitution is more difficult to amend or make changes. Therefore, when it comes to the balance of power, the Indian Constitution provides for a more extensive power the Centre’s hands as against the US, where power is equally balanced.

The Indian Constitution also provides for taking over the administration of the State functionary by the Centre, if the State’s constitutional mechanism has failed or broken down. The US Constitution, on the other hand, does not provide for the same.

Judicial Structure and Federalism

The British rule, which was set up in India through the East India Company, paved the way for the common law regime, a system primarily based on recorded judicial precedents. The Charter granted by King George I in the year 1726 established the “Mayor’s Court” in three presidency towns, i.e., Bombay, Madras and Calcutta. In essence, the Company’s judicial functions (and therefore the Crown) expanded and replaced the then prevailing Mughal system of justice.

The Company’s control over India was passed on to the Crown after the First War of Independence in 1857. An apex court was instituted replacing the Mayor’s Court in the year 1774 in Calcutta. The Regulating Act, 1773, empowered the apex court to formulate procedural rules. In 1861, British Parliament set up High Courts in three presidency towns. This was the most significant shift in the Indian Legal System.[4]

The judiciary at present constitutes one apex court situated in New Delhi and twenty-five High Courts across the nation. Two days after India was declared a sovereign, democratic Republic, the apex court came into being.

The original Constitution envisaged an apex court with a Chief Justice and seven puisne judges and left it to Parliament to increase this number. In the early years, all the apex court judges sat together to hear the cases presented before them. As the work of the Court increased and arrears of cases began to accumulate, Parliament increased the number of judges from eight in 1950 to eleven in 1956, fourteen in 1960, eighteen in 1978 and twenty six in 1986. As the number of judges increased, smaller benches of two or three were created for hearing matters, with larger benches or five or more coming together only to settle a difference of opinion or controversy.

As the highest court of the land, the Supreme Court is conferred with powers of Original, Appellate and Advisory functions. Article 145 of the Constitution regulates the Supreme Court's practice and procedure along with the Supreme Court Rules, 1966 (as amended from time to time).

Several critics have harped on the maxim ‘justice delayed is justice denied’. Some others have referred to the legal maxim Lex dilationes semper exhorret which means ‘the law always abhors delays’.[5] It is this delay that begs the question – why not have separate benches or multiple benches across jurisdictions? Does this ease the working of the apex court and help with pendency? Is decentralization from Delhi across different jurisdictions, the answer to all problems?

What is Decentralization?

Although this term is widespread and has been extensively analyzed by many writers, ‘decentralization’ can be understood and applied in various ways. It primarily refers to the transfer of powers and responsibilities from the Centre to the States, with the latter having some degree of autonomy. One can also claim that decentralization is more about reconfiguring relationships between the Centre and the State for formulating a more co-operative, strategic and systemic role for both. This concept is also multi-dimensional, as it covers three interconnected facets namely, political, administrative and fiscal. The structures and degree of decentralization fluctuate significantly from one nation to another.[6]

In 1958, the Law Commission in its 14^th Report titled ‘Reform of Judicial Administration’, recommended the establishment of an appellate tribunal or tribunals at the Centre and the States. This, in some form, amounted to ‘Decentralization and effective functioning of the Judiciary’. Subsequently, in 1974, the Law Commission, through its 58^th Report titled ‘Structure and Jurisdiction of the Higher Judiciary’, urged that a separate high powered tribunal or commission should be set up to deal with service matters and that approaching the Courts should be the last resort. Albeit these recommendations were made not with the intention to decentralize the judiciary, but to reduce burdens on courts. This was nevertheless regarded as the first step towards setting up some benches across jurisdictions within India.

Two other Committee recommendations i.e., the High Court Arrears Committee (1969) and the Swaran Singh Committee (1976) are also vital. Both recommended setting up of independent tribunals, once again to handle service matters pending before various High Courts and the apex court. The Swaran Singh Committee recommended that administrative tribunals may be setup under a Central law, both at the State level and the Centre to decide cases relating to service matters. Accordingly, the Constitution (Forty Second Amendment) Act, 1976, was added, which provided for establishment of administrative tribunals under Article 323-A and tribunals for other matters under Article 323-B. Most tribunals (till date) are exempt from following procedures under the Civil Procedure Code, 1908 or the Indian Evidence Act, 1872. Tribunals clothe the role of a quasi-judicial body.

Pursuant to this, a number of different tribunals were set up as sector specific regulators to handle specific areas of law. These include the MRTP Commission (now CCI), the Company Law Board (now NCLT/NCLAT), TDSAT, CESTAT, ITAT etc. Among all tribunals, only the ITAT, CESTAT and NCLAT have functional regional benches. Proposals have been made by both the legislature and the judiciary to set up benches for NCLAT and some other tribunals.

Arguments have been made both for and against the tribunal system and its efficiency. However, as things stand, this is the only form of decentralization that exists in India to overcome the pendency of cases before various courts. Recently, in a small step towards decentralization, a regional bench of the NCLAT and a proposed regional bench of the CCI have been set up in Chennai, Tamil Nadu.

Why decentralization?

Though the 1990 reforms improved the growth rate of the Indian economy, the overall impact was not seen across all states in the country. It is believed that the southern states grew faster than the northern states. However, the latter were at the forefront of growth in the 1980s and started to lag after that.[7]

The performance of India depends on the performance of all its states. Generally, all major performance indicators are collected, compiled and analysed separately for the country and for the states. However, it is a given that unless individual states perform well, India as a country will not survive.[8]

We have therefore taken into account the following factors to assess the performance of the southern states and their contributions towards the economy/judiciary:

• IT & E-Governance ­- Information Technology (IT) has revolutionized the economy and life in recent times, especially during the pandemic. It has become the new source of comparative advantage in this age of dissemination of knowledge and information. All southern State governments are actively engaged in promoting the IT industries in their respective States and in the use of IT within and outside the government. The Andhra Pradesh, Karnataka and Tamil Nadu governments took the early lead and laid down their IT policies giving an array of incentives and concessions to investment in the IT sector in their respective States as early as 1997 whereas the Kerala government started the emphasis on IT by announcing its first IT policy in 1998. Karnataka for long has been the leader in the country for the software industry. The State software industry is concentrated in Bangalore, referred to as the Silicon Valley of India and contributes now to about 30 per cent of India’s total software exports.[9]

• Pendency in High Courts – According to the National Judicial Data Grid, the pendency of cases in the High Court of Karnataka is around 2,86,372. Similarly, the Andhra Pradesh High Court has around 2,10,404 pending cases, while Telangana has around 2,36,852. Tamil Nadu clocks at around 5,82,009 and Kerala at around 2,17,797.

  In comparison, the High Court of Allahabad has around 7,76,921 cases pending, the Bombay High Court has around 5,48,257. The Delhi High Court reported the least number of pending cases, with its numbers at 91,195, while the apex court reported a pendency of 66,072.

There are two legs to look at pendency: The fact that pendency is low, for instance, at the Delhi High Court could possibly be because of the centralization of power in Delhi viz., more judges being appointed, infrastructure boost, the plethora of tribunals etc. One can argue that if this dissection takes place in the southern states, the High Courts will function at a much faster rate than any of the other High Courts. The fact that tribunals have not been decentralized in the South is another reason for parties to approach the High Courts directly, causing increase pendency.

On the other hand, the tribunals functioning in the South have vacancies resulting in cases not being heard at all. For instance, the CESTAT Bench in Bangalore has had a vacancy since early 2016. Cases since 2008–2009, have been pending before the CESTAT Bench, resulting in increased pendency of cases. Another instance is from the year 2019, wherein a notification issued by the Central Board of Excise and Customs (‘CBEC’), formulating a separate Bench (a second division Bench) in CESTAT Bangalore was announced. Two years on, the notification is yet to see the light of day.

Current trends in decentralization

Decentralised reforms are mostly implemented for varied political, historical, and economic reasons depending upon the country.

Recently, the Companies (Amendment) Act, 2020 instituted Section 418A, which permits for setting up for more benches of the Appellate Tribunal across India, given the judgement of the Apex Court in the case of Swiss Ribbons Pvt. Ltd. v. Union of India, wherein the Court had given Parliament a time frame of six months to set up NCLAT benches at the regional level. This move is mainly influenced to secure greater efficiency in public service delivery and more accountability, leading to further development at the regional level.

Furthermore, with enhanced technology and the digital revolution, a boost in urbanisation and economic activities contributes to the regional level. The department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice (Committee), has presented an interim report on the ‘Functioning of the virtual courts/court proceedings through video conferencing’. The report discusses how the pandemic affected the justice delivery system, and creative ways were to be adopted to execute their duties. Online mode is the most receptive option. Thus, virtual courts turned out to be the only means of the dispensation of justice. With the changing times and adopting to digitalised courts till the pandemic is eradicated completely.

In 2004, the then Chief Justice of India made a proposal to the Central government for constituting an E-Committee to assist him in formulating a National Policy on computerization of Indian Judiciary and seek advice about technological, communication and management related changes in the judiciary. The Union Cabinet approved the proposal, and the Ministry of Law and Justice (Department of Justice) constituted the E-Committee under the Chairmanship of Dr. Justice GC Bharuka, a retired Judge of the High Court of Karnataka, with three other specialist members. The E-committee’s primary objectives were to achieve speedy, qualitative and cost-effective justice, and enhance transparency and accountability with the introduction of Information and Communication Technology. Hence, the National Policy and Action Plan for implementation of Information and Communication Technology in the Indian Judiciary, was devised 17 years ago. The spark therefore, for digitalising courts in India is not a new concept.

However, persistence is the need of the hour, with rising technological advancements. Technology is being used for several purposes, and the same can be utilised with the setting up of benches of the apex court for the first few years without worrying about physical infrastructure. As a matter of fact, the apex court initiated a suo motu civil writ petition and issued guidelines for court procedures through video conferencing during the COVID-19 pandemic. This was a guiding element for all the High Courts across the nation to formulate a mechanism in order to render dispensation of justice even during the pandemic. In our opinion, this same mechanism can be utilized at the nascent stage of setting up the decentralized benches of not just the Supreme Court, but also various regulators/appellate tribunals.

Recently, the CCI announced that a Regional Office had been setup in Chennai to cover matters arising from the South Indian states. At present, only the investigative wing of the CCI will move branches. Eventually, however, a Bench will be formulated. This is a much anticipated and significant step towards decentralization.

Conclusion

On the occasion of the 71^st anniversary of the adoption of our Constitution, the Attorney General made remarks anticipating a large pendency of cases when courts restart after the pandemic ends. He said that the need of the hour would be to set up National Courts of Appeal, with fifteen judges each who would be on par with Supreme Court judges and can decide all appeals arising from High Courts, leaving only issues of national and constitutional importance to be decided by the apex court.

He said,

“At present, the Supreme Court is hearing close to 400 categories of cases related to matrimonial disputes, bail petitions, land acquisition matters and so on, when the Supreme Court is supposed to be the Constitutional Court dealing with issues of national importance. The Supreme Court must regain its stature. This does not mean cases should end at the level of High Court. A Court of Appeal is to be constituted between Apex Court and High Courts that can give finality to all appeals.”

He cited a Yale University research paper stating that most cases filed in the Supreme Court are from North India. He went on to state,

“This will require a Constitutional amendment. This will leave Supreme Court with a pendency of only 2,000-3,000 cases a year as compared to present figure of 60-70,000. It will allow top court judges more time to patiently read and write judgments, as currently they sit till midnight reading case files listed for next day."

Given the above, it is imperative that the Union and States propose a model wherein the judiciary is split across jurisdictions in India with the setting of various tribunals, appellate tribunals, regulators and benches of the Supreme Court, across all states to not only ensure equal distribution of work, but also reduce pendency, improve employment and most importantly, ensure an effective and efficient justice delivery mechanism.

Prashanth S Shivadass is the Founder and Managing Partner of Shivadass & Shivadass (Law Chambers) and Twinkle J Chadwa is a final year law student at School of Law, CHRIST, Bangalore

[1] Durga Das Basu, Commentary on the Constitution of India, 7th Edition, Vol A: Calcutta: S.C. Sarkar and Sons, 1965, p.55.

[2] H.M. Seervai’s Constitution of India Volume I, Page 286.

[3] MP Jain, Indian Constitutional Law, 8^th Edition, 2018.

[4] Sharma, Rudransh. “History of Legal Profession in India” Journal on European History of Law, vol. 7, no. 1, 2016, p. 60-72. HeinOnline.

[5] K. I. Vibhute, “Administrative Tribunals and the High Courts: A Plea for Judicial Review” 29 JILI 524 (1987).

[6] OECD Multi Level Governance Studies, Making Decentralisation Work (A Hand-book for Policy Makers), 2019.

[7] Foreword by Arvind Virmani, Director & Chief Executive, Northern States vs. Southern States: A Comparative Analysis, Indian Council for Research on International Economic Relations (ICRIER) 2004.

[8] Working Paper by Mathew Joseph, Northern States vs. Southern States: A Comparative Analysis, Indian Council for Research on International Economic Relations (ICRIER) 2004.

[9] Id.