In India Supreme Court’s lowest Bench consists of two judges, known as Division Bench, then comes in three-judge Bench, called Full Bench. It consists three or more judges but less than five. Then at last comes in the Constitutional Bench, which is more than five and there is no upper limit for it. Usually these benches are formed in old numbers so that a hung verdict situation can be avoided. Till now the largest Consitutional Bench consisted of 13 judges in Keshavnanda Bharti Vs. State of Kerala.
Constitution benches are exceptions, set-up only if one or more of the following circumstances exist:-
1. The case involves a substantial question of law pertaining to the interpretation of the Constitution, as provided in Article 145 (3) of the Constitution, which mandates that such matters be heard by a Bench of not less than five
2. The President of India has sought the Supreme Court’s opinion on a question of fact or law under Article 143 of the Constitution [again, see Article 145(3)];
3. Two or more three-judge benches of the Supreme Court have delivered conflicting judgments on the same point of law, thus warranting a definitive pronouncement by a larger bench;
4. A later three-judge bench doubts the correctness of a judgment delivered by a previous three-judge bench of the Supreme Court, and decides to refer the case to a larger bench for a reconsideration of that earlier judgment. Presently, Constitution Benches are set-up on an ad hoc basis as and when the need arises. The idea behind a Constitution Bench is clear: it is constituted in rare cases to decide important questions of fact or legal and/or constitutional interpretation.
According to Supreme Court Rules, under Order VI, Rule 1, a Supreme Court bench should have at least two judges. However, aimed at reducing pendency, for the first time since it was set-up, following this amendment, the top court decided to have single- judge benches like those in High Courts. The nominated single-judge bench is now set to hear appeals arising out of grant, dismissal or rejection of bail or anticipatory bail for offences punishable with imprisonment up to seven years. The fresh provisions add that petitions to transfer criminal cases from one court to another court, under Section 406 of the CrPC, shall also be decided by the single judge benches. Similarly, plea for transfer of civil suits under Section 25 of the Civil Procedure Code, shall also be taken up by the single judge benches. Earlier, a single judge bench used to hear cases pertaining to issues of transfer of criminal cases or civil suits from one court to another only during vacations. The celebrated verdict in Indira Gandhi’s election disqualification case was delivered by Justice Krishna Iyer when he was sitting singly during summer vacations in the Supreme Court. Chief Justice Ranjan Gogoi had recently raised concerns over an enormous amount of pending cases in courts across India. “In India, we have a little over one thousand 50-year-old cases and above two lakh 25-year old cases,” Out of the 90 lakh pending civil cases, over 20 lakh are such in which even summons have not been served.
Learned Senior Advocate Mahalakshmi Pavani, practicing in Supreme Court said, “I am totally not in favor of the recent ruling regarding setting-up of single judge benches nominated by the Hon’ble Chief Justice of India. This has been included in the existing Supreme Court Rules, 2013, through a Notification in the official gazette on September 17,2019. The matters that are to be heard by the single-judge bench are cases of bail and anticipatory bail where the punishment of the offences is up to seven years in jail. This category of offences can range from criminal charges to charge under the Prevention of Corruption Act.”
Mahalakshmi Pavani further said, “The fresh ruling also adds that petitions pertaining to transfer of criminal cases from one court to another court, under Section 406 of the CrPC, shall also now be decided by the single judge benches. Similarly, plea for transfer of civil suits under Section 25 of the Civil Procedure Code, shall also be taken up by the single judge benches. Earlier, a single judge bench used to hear cases pertaining to issues of transfer of criminal cases or civil suits from one court to another only during vacations. And during the normal course chamber matters are heard by single benches.
The Supreme Court is a Constitutional court, and a single judge may also be delivering judgments which would lay down precedence. But, it may not be desirable for a single judge bench to lay down new law or a new jurisprudence on issues of bail and transfer. There would be certain instances wherein a single judge bench would be sitting in appeal over decisions by division benches of the High Court. This would actually add to the pendency of cases only. In the Hon’ble Supreme Court a hierarchy of benches within the Court is recognised as a matter of practice and is crystallised as a rule of law. This was settled in the Constitution Bench decision of A.R. Antulay v. R.S. Nayak. Keeping into consideration the mounting arrears, shortage of judges and instances of dissent, feeling the pulse of the time we should not arrive at a conclusion to do away with division bench and full bench rule. In consequence, it is a rule that has been evolved that the statement of law made by a division bench is considered binding on a division bench of the same or lesser number of judges and only larger benches may overrule the judgment of smaller benches. If the hierarchical discipline scheme requires a bench of two judges to follow the judgment of three Judges, ex hypothesi the same discipline would oblige a three-judge bench to follow the judgment of five judges. This being the case and the hierarchy that has been following for so many years, the setting- up of single bench would not be favourable because the decision would be challenged.”
Advocate Mahalakshmi Pavai also said, “One prime reason for having division benches or benches of larger composition in the top court is to ensure a proper deliberation between the judges before arriving at a decision because the orders of the Supreme Court are final and not appealable.”
In support of her statement, Pavani cited examples that an 11-judge bench of the Patna High Court which had recently suspended an order passed by a single-judge triggering a huge debate. Justice Rakesh Kumar in his order had expressed concern over alleged corruption and casteism in judiciary which was viewed as an “attack on judicial hierarchy, judicial integrity”.
Pavani pointed out that “Taking a serious note of the matter, Chief Justice A P Sahi constituted a bench comprising 11 judges, which today took a grim view of the single judge order and suspended it observing that it was tantamount to an attack on judicial hierarchy, judicial integrity and majesty of the court.”
“The Supreme Court is the Constitutional court, and a single judge may also be delivering ground breaking judgments. But, it may not be desirable for a single judge bench to lay down a new law or a new jurisprudence on issues of bail and transfer. Also, there could be certain instances wherein a single judge bench would be sitting in appeal over decisions by the two judge benches in high courts. One prime reason for having division benches or benches of larger composition in the top court was to ensure a proper deliberation between the judges before arriving at a decision because the orders of the Supreme Court are final and not appealable. Single judge benches and the parties will not have this advantage”, concluded Advocate Mahalakshmi Pavani.
Major General (Retd.) Nilendra Kumar disagreed to Pavani’s version and said, “All-India Judicial Service is the crying need of the time. Young and brilliant judges can expedite the process and bring about innovations in judicial management.
Recourse to single benches is the need of the hour due to several reasons.
The huge pendency of cases before the Constitutional courts calls for timely disposal . One of the reasons for the huge time taken is paucity of judicial manpower. If cases are heard and decided by a single judge then it would result in creation of more benches to take up other pending work. The disposal rate would be accelerated. Secondly, a single judge hearing a matter would automatically be more alert and efficient because of the realisation that he would be expected to write the judgment. Thirdly, exposure to more work will bring about increased opportunity to hear and decide cases. The judges would gain proficiency and attain specialisation in different branches of law. Fourthly, the creation of more benches
would also help in emergence of more competent lawyers due to the need for taking up matters before the additional benches thus created. Fifthly, court staff will also come to acquire greater exposure and thereby generate increased experience. Sixthly, more jobs and promotion opportunities. Seventhly, speedy disposal of legal disputes would facilitate greater faith in rule of law.”
Advocate Trisha Kadyan said, “In my view, there are pros and cons of having the single judge benches to make more courts.
The pros are:-
1. It is very obvious that the introduction of single judge benches would definitely help in reducing the enormous number of cases pending before the high courts as well as the Supreme Court.
2. If we look that a single judge bench hear cases related to issues of transfer of criminal cases or civil suits from one court to another during vacations without any problem. Similarly, even now the Hon’ble Supreme Court agreed to constitute single judge benches to hear cases pertaining to bail and transfer in order to reduce the pendency. What’s the problem?
3. Single judge bench would leave the judges with an independent thought and without any interference and the judges can decide by being best at his/her own judgment after considering all the evidences produced before him.
4. Having single judge bench, litigants must have firm belief in the judgments passed by the single judge bench because if we look, in trial and sessions courts, it’s the single judge who decides ultra sensitive matters singly, to the extent of session judge sending the accused to gallows with the movement of the pen. So why not have single judge benches to decide the categorized offences or matters.
5. We must have single judge benches, because if we look at the recent trend, various States are coming up and setting up the single judge bench courts in order to reduce pendency because there are end number of cases which are of very petty issues and can be decided in one or two hearings only.
6. Moreover, Single judge bench courts can be categorized as per the importance of the matters such as matters pertaining to the offences which includes fine, or punishments under seven years of imprisonment, or cases pertaining to civil suits or petty crimes and instead the matters of high importance such as general public interest, social security, national interest and heinous crime related matters shall be decided by the division bench and other benches.
The cons are:-
1. When we talk about having a single judge bench in court, the first thought which comes to our mind is “There may be a biased judgment.” Its because a single judge bench may not be convincing for the losing litigant.
2. A division bench is better as compared to the single judge bench because there would always be a difference of opinion among two people, and then they both may reach to a logical conclusion.
3. Similarly, a single judge bench may write anything or allege anything against the whole judiciary like recently happened in Patna High Court wherein Justice AP Sahi suspended the single judge bench observing that it was tantamount to an attack on judicial hierarchy, judicial integrity and majesty of the court.”
Trisha Kadyan concluded by saying, “In my view having single Judge benches to make more courts would be helpful in deciding the matters judiciously as well as within time as enormous number of cases which don’t require courts’ intervention are piling up which otherwise could have been settled amicably between the parties themselves.”
Noted Advocate Yawar Qazalbash having to his credit an illuminating legal practice of 62 years said, “The idea to ‘make single judge benches’ in consideration of arrears and shortage of judges, apparently look viable and practical; but at the same time it may create many serious implications, specially to the quality and credibility of judicial system in the eyes of public at large.”
Qazalbash further said, “In high courts the judgments of appeals before division bench are preferred than the judgments delivered by the single judge bench and for the litigants it becomes a costly and time consuming endeavour. Supreme Court being the last court of the country cannot viably afford to constitute single benches, irrespective of shortage of judges because two minds are better than one while deciding a matter of importance. Single judge benches in Apex court, though would help in formation of more courts, but naturally the resultant outcome may perhaps diminish the image of already deteriorating image among litigating public.”
Barkha Trehan Kochhar, Assistant Professor at Vivekanand Institute of Professional Studies feels, “Judges are too human beings. Since no human is beyond error, we cannot rule out the possibility of error in judgements too! Moreover, division benches have less chances of getting carried away by either side! I’d rather suggest we increase the numbers of the courts and recruit more judges. Why only limited seats are advertised when judicial exams are conducted? Over a lakh people sit against 4, 10 or 18 seats. We should increase the numbers here! more court rooms are required. There should be the rule of time bar trials for quick disposal!”
Mr. Vasudeva Rao, IPS (Retd.), former Special Commissioner of Police, Delhi, who was looking after its Legal Cell said, “What is applicable in a criminal case, may not be relevant in hearing issues of larger public import. In order to ensure greater balance in judgment and wider exploration of complicated issues of law and fact, division benches are set up. And when there is a fely inadequacy about the depth of discussions done., the chief justice may go in for a larger bench. Constitutional issues, are, of course, of fundamental significance and as such they are a necessity at apex level. In a democracy, these mechanisms do involve time-consuming processes and procedures but they are inevitable in the larger scheme of things. People’s faith in judicial process as the ultimate arbiter of law needs to be sustained as otherwise, consequences will be even more disastrous. One solution is setting up more courts and expanding the number of judges of high courts and supreme court. In fact, there is a good case for more specialised courts at different levels for better disposal of cases. The need for reduction of adjournments and submission of written arguments in certain cases are also a must. Requirement of presence of all the accused in each hearing may need to be reviewed.
O.P. Saxena, gave a very balanced view saying, “ In High Court of Delhi, there are around 6 division benches, rest of the courts are of single judge bench. It is true that more single judge benches will provide more courts but for this we have to categorise the nature of criminal and civil cases. As such, according to the category of cases, they should be referred to respective benches. In a division bench judgments, benefit of doubt is addressed.”
Saxena pointed out that there are almost 15 vacancies of judges in High Court of Delhi, which need to be filled. If the government takes cognizance of this lapse at its part, things will automatically improve. He also pointed out that in certain Tribunals, especially the Green Tribunal, unnecessarily, in normal course, three to five judges sit, although it is not a Constitutional Bench of the Supreme Court that may need five judges. If they split the number of benches, they may have more courts for speedy justice.