Permanent Constitution Bench & Specialised Divisions In Supreme Court Can Help Growth Of Consistent Jurisprudence : Gautam Bhatia

During the seminar hosted by Campaign for Judicial Accountability and Reforms (CJAR) at the Indian Society of International Law, New Delhi, Advocate and constitutional law scholar Gautam Bhatia proposed that the Supreme Court should have specialized Divisions for dealing with diverse cases (like, criminal, tax, constitutional) so that present limitations and issues may be addressed, as well as for ensuring growth of a more consistent legal jurisprudence.

"I think it makes sense to have various divisions in the Supreme Court...a permanent Constitution Bench could have the five senior-most judges...you could have a criminal division or a tax division in place of the ever-changeable Roster, which is quite a vague concept. This could also allow for the growth and the evolution of a more consistent jurisprudence over time", Bhatia said in a video message.

With regard to the above proposal, Bhatia gave the example of Kenya, where at the High Court level, there are divisions like the Constitutional and Human Rights Division. Adopting the idea to the Indian context, he suggested that the Supreme Court can have a permanent Bench for Constitutional matters, a separate Division for tax matters, another Division for criminal matters, and so forth. 

He added that this may lead to a situation where specific, subject matter expertise becomes the basis for appointment.

A second proposal given by the scholar was that the Supreme Court can put out restatement of law volume. "The value of a restatement is that it systematizes precedents and jurisprudence...[it] provides a guide to both individuals and equally importantly to the court and judges about where the law stands in a particular field."

Taking the chain of thought further, Bhatia said that if the restatement is issued by the Indian Supreme Court itself, it would "carry the imprimatur of the Court and be uniquely authoritative". This is particularly important when "high levels of judicial discretion" mean that in high-stakes matters, much turns on "proclivities of specific Judges which in turn is what makes case assignment so controversial", he remarked.

Before closing the address, Bhatia emphasized that discretion is central to adjudication and we want to preserve it. However, it is important to understand that a fine line separates discretion from arbitrariness.

"We don't want to be judged by algorithms...you want to be judged by human beings...when we are talking structural or institutional solutions, we are asking ourselves how can we preserve discretion but minimize arbitrariness"

During his address, he acknowledged another proposal that has been given thought in the past ie to avoid individual variance in assigning of cases by adopting a lottery method, which takes human element out of the process. Bhatia said that this may introduce randomness, but would not deal with polyvocality etc. Further, "replacing the possibility of bias with certainty of chance is not an ideal solution."

He also highlighted the following as aspects that set the Indian Supreme Court apart from Apex Courts of other countries: 

(i) A Polyvocal court – Bhatia opined that the Indian Supreme Court, with its strength of 34 judges usually sitting in panels of 2, is a Polyvocal Court. These Judges have individual approaches to law and social problems, and the intersection of the two, that inform how cases are adjudicated.

(ii) Apex court, not a Constitutional court - He further said that the Supreme Court hears more than just constitutional cases and has a wide jurisdiction. The jurisdiction is in fact becoming wider. It was highlighted that a lot of consequential work of the court takes place through day to day (interim) orders, and not lengthy judgments.

(iii) Generalist court - Finally, he stated that the Indian Supreme Court is a Generalist court, dealing with the entire gamut of laws. There are no specialized courts for say criminal matters, labor cases, etc.

The event can be watched live here.