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Has the Supreme Court become a court of first resort?

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“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way”. That was the mail received from a puisne judge of a High Court, in the wake of the intervention by the Supreme Court, in the encounter deaths of the 4 accused in the horrific rape and dastardly killing of Disha in Hyderabad. It is the famed opening passage from Charles Dickens’ Tale of Two Cities, of 1859 vintage, a historical novel of inimitable beauty, set in London and Paris, during the French revolution.

The message was not hidden but direct. The Supreme Court set up a three-member inquiry commission  by orders dt.12th Dec, 2019, to investigate the recent killings of four Telangana rape and murder suspects in what the police said was an encounter. The commission will be headed by a retired Supreme Court Judge, Justice V.S. Sirpurkar. The two others on the panel are former Bombay High Court judge Rekha Baldota and former CBI Chief Kartikeyan. They have six months to complete their investigation.

The puisne judge’s message was indicative of the assumed jurisdiction by the top court, as if the court of first resort, rather than last resort, as envisaged by the framers of the Constitution. Even Art.32 of the Constitution, to invoke fundamental rights, described by Babasaheb Ambedkar as the “heart and soul has its judicial limits to its remit”, said Justice V.R. Krishna Iyer. Krishna Iyer put it eloquently, “Supreme Court commands a high stature, lofty functional independence, unitive, hierarchical structure and robed mega power. Even so, judges be they ever so high, exercise authority under the Constitution, never over it. True, the Supreme Court is final, not because it is infallible, it is infallible because it is final”. The message from the pusine judge is straight as an arrow. Nowadays, the orders of the Supreme Court appear to be coming not as ‘final’ verdicts but as possibly the ‘first’ verdict. Got the message?

 

Of course, we are in the best of times and worst of times, at any given point of time, in the judicial history of this nation. Undeniably, the Supreme Court of India is the most powerful institution in the world. “Constitutionally, it may not be designed so, but it has usurped to itself the power to do good to the highest numbers from where it is perched”, suggested late Chief Justice P.N. Bhagwati. The recent verdict in Ramajanmabhoomi verdict and ‘dismissal of all review petitions’ on 12th Dec, 2019, is a classic instance of the Supreme Court, entertaining its  hierarchial jurisdiction, when it was meant to be, in first appeal, sitting over the Allahabad High Court Special Bench’s suit verdict. It was not an assumed jurisdiction that belonged to the lower tier.

Who better to quote again than Chief Justice P.N. Bhagwati, “The Supreme Court of India had for long remained an arena of legal quibbling for men with long purses. But now, increasingly it has started being identified by judges as well as by people as the last resort for the oppressed and the bewildered.  The transition from a traditional captive agency with a low social visibility into a liberated agency with high socio-political feasibility is an interesting development of the Indian appellate judiciary”. Mark the expression, “appellate judiciary”.

That is where very serious reservations  have arisen and academicians are worried that the law lords of Supreme Court appear to be lording over the hierarchy, ‘as if they matter and they alone matter’ (Justice Holmes) and unwilling to resist entertaining matters which may belong to even Magistracy, leave alone the constitutional High Courts. The visibility that the Supreme Court has gained of late is phenomenal. The commoner is now bombarded with cacophony and pandemonium in his drawing room with ‘loud mouthed louts as anchors peddling ideological food fights on the idiot box’, as Havard Professor Michael Sandel disdainfully dismisses them.  On the daily orders from the Apex Court.

 

While it is true that in the case of say the Karnataka Assembly imbroglio or the Mess in Maharashtra, the intervention of the Supreme Court lent credibility to the immediacy and scope for quick closure. But that cannot become the rule, for the top court to deal with causes, which did not belong to them, as if the court of first resort. In the Constituent Assembly debates, it was made clear that ‘while the supremacy of the Supreme Court was to be accorded its due primacy, it ought not to be at the cost of forsaking the need for a systemic hierarchical discipline.” Meaning that the judges who adorn the pulpit, ought to yield to the Courts below, their pride of place, and not be seen to be seen jumping in, ahead of time.

In cause after cause, we now find the spectacle of issues being escalated to the Supreme Court not from the High Courts but directly, bypassing the courts below. There is now a willingness to overrun the hierarchical courts. Matters belonging to Magistracy too land up before the Supreme Court, as the Gautam Navalakha and Rafale defence deal controversies. That casts a serious shadow on the efficacy of the courts below.

Chief Justice of India Dipak Misra, before retirement said, “Assumption of jurisdiction must be the rule and not abdication”. True. But that is to be practised vis a vis causes of national security et al. Not in terms of hierarchical courts, where the Supreme Court overwhelms the Courts below, by assuming causes which they ought to abdicate in favour of them, at the first instance. For instance, even in matters such as Aadhaar or Triple Talaq or Art.370, TN local body elections, and now to emerge Citizenship Amendment Act challenges, a few decades ago, the Supreme Court would have let the High Courts, to handle them at the first instance. Even where similar litigation were pending before several High Courts, all that the Supreme Court did was to intervene to ensure transfer and consolidation of all of them to one High Court, to have the benefit of a verdict, before sitting in judgment over it. That enhanced institutional integrity and judicial discipline.

 

Alas, it is no longer true. There are a battery of expert lawyers practising in the art of the approaching the Supreme Court, as the Court of first resort. Honestly, as a practitioner too, one sincerely feels that it was time for Supreme Court to decline to ‘entertain every other cause in irrational exuberance as avoidable proclivity’ as Nani Palkhivala remarked once, in another context. For the Supreme Court to retain its supremacy as the final arbiter of mother of all laws viz. Constitution, time may have come for Parliament to enact a National Court of Appeal, allowing the luxury of time for the top court to deal with constitutional issues alone.

(Narasimhan Vijayaraghavan- Author is practising advocate in the Madras High Court)

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