An Institutional Separation?: Rethinking the Supreme Court’s Constitutional and Appellate identity

LAST MONTH, the Chief Justice of India shook up the Supreme Court’s docket, bringing to the fore long-standing contested issues – three pending Constitution Bench cases: the ‘Industry’ definition case (which was heard by nine judges on Tuesday and Wednesday), Sabarimala review, and constitutionality of the Citizenship Amendment Act (‘CAA’). For the issues to have been done ‘justice’, it is only appropriate that considerable time, cost and energy are deployed on them. However, there is another concern.

There are two distinct reactions we can imagine emerging from the news of these latest Constitution Bench listings:, first, approval as some of these cases date back over twenty years, and the second, rooted in more ‘conspiratorial’ reasoning that extraneous political circumstances (the Kerala Elections will most likely coincide with the Sabriamala review) may have dictated the timing of some of the hearings; a large chunk of judges from the Supreme Court’s roster will will be required to suspend substantial time on the cases, which some argue, could be better directed to resolve the long standing and now famous pendency of the Supreme Court. To resolve this issue, a longstanding proposition has been to consider, perhaps, an institutional separation giving rise to  a constitutional court and a separate Higher Court of Appeals in India. 

In this piece, I first contextualise this recent ‘constitutional rush’ of the Supreme Court by giving an overview of the issue and matters that the Court has recently decided to hear. Then, I assess the arguments for having two higher adjudicatory bodies and different reform proposals in more detail. 

The Constitutional Rush 

Last month , the Supreme Court gave directions on the last two pending 9-judge bench matters in the Court’s docket. The first State of Uttar Pradesh v. Jai Bir Singh, deals with the definition of ‘industry’ in Industrial Disputes Act, 1947  that has been pending since 2005 While with the promulgation of the new codes, its central inquiry may have become more academic, the issues will have repercussions of given the pendency of labour disputes and the fact that the new labour codes are manifestly prospective. If the Supreme Court were to give retrospective effect to the Bangalore Water Supply & Sewerage Board v R. Rajappa (1978) decision (in which Justice Krishna Iyer famously gave an expansive definition of industry), it would have implications on all cases from the 1970s to the end of 2025. Further, while the Court has not ruled on the new codes, when the nine judge bench gives its verdict, it will invariably set the scope for the new codes. However, even if the Court highlights the terms and principles of sovereign function, or charitable institutions it would not be decisive for the new codes. Nonetheless, given the authority of the bench, it is going to be highly persuasive. Perhaps even so that the line between binding and persuasive becomes blurry. It will also adjudicate upon whether Justice Iyer’s verdict was unanimous; it would, in effect, guide the reading and interpreting of judgments. On March 17, the Court heard the petitioners.