The authors are advocates of Karanjawala & Co. practicing before the Hon'ble Supreme Court of India and the Hon'ble High Court of Delhi. Mr. Debmalya Banerjee is a Partner at Karanjawala & Co., Mr. Ujjwal Singh is an Associate and Mr. Wardaan Vanchoo is also an Associate.

Origin of the Supreme Court

The History of the Hon'ble Supreme Court of India can be traced back to the establishment of the Federal Court in India on October 1, 1937 when the Viceroy Linlithgow administered the oath of allegiance to the first three judges of the Hon'ble Federal court namely Chief Justice Sir Maurice Gwyer and puisne Judges Sir Shah Muhammed Sulaiman and Mukund R. Jayakar. The Federal Court had the following jurisdictions-

  1. Original Jurisdiction (Section 204 of the Government of India Act, 1935)- in any dispute between any two or more of the following parties, that is to say, the Federation, any of the Provinces or nay of the Federated States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends. This jurisdiction of the Federal Court was only invoked three times, namely in the cases of The United Provinces v The Governor-General in Council (1939) F.C.R. 124, The Governor-General in Council v The Province of Madras (1943) F.C.R. 1 & lastly Ramgarh State v The Province of Bihar (1948) F.C.R. 79.
  2. Appellate Jurisdiction in appeals from High Court in British India (Section 205 of the Government of India Act, 1935). The bulk of the cases that were dealt with by the Federal Court were under this jurisdiction.
  3. Advisory Jurisdiction under the provision of Section 213 of the Government of India Act, 1935 which could be invoked by the Governor-General to refer a question of law to the Federal Court. This jurisdiction was invoked only 4 times namely in the cases of In re the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938, (1939) F.C.R.18, In re the Hindu Women's Right to Property Act, 1937 and the Hindu Women's Right to Property (Amendment Act) 1938, (1941) F.C.R. 12, In re Allocation of Lands and Buildings Situate in a Chief Commissioner's Province (1943) F.C.R. 20 and lastly in In re the Power of the Federal Legislature to provide for the Levy of an Estate Duty in Respect of Property other than Agricultural Land, Passing upon the Death of Any person (1944) F.C.R.317.
    It is pertinent to mention that Section 208 of the Government of India Act, 1935, stipulated that there was a right of appeal to the Privy Council from the judgments of the Federal Court in exercise of its original jurisdiction. An appeal could be preferred to the Privy Council from a decision of the Federal Court in any other case, provided the Federal Court or the Privy Council granted leave to appeal (Section 208 (b) of the Government of India Act, 1935).

Demands for the establishment of a Supreme Court for India

One of the earliest references recommending the establishment of a Supreme Court for India was the Sapru Committee Report on Constitutional Proposals that was published in 1945. This Committee consisted of 30 members and in fact, a few members of the Sapru Committee went on the become members of the Indian Constituent Assembly, wherein they continued to champion the cause of establishment of the Supreme Court of India, these included Sachchidananda Sinha (who was selected as the Temporary President of the Constituent Assembly), Frank Anthony, N Gopalaswami Ayyangar and others. Within the Constituent Assembly there was a specific Committee created to delve into the aspect of the establishment of a Supreme Court. This Committee was called the Ad Hoc Committee on the Supreme Court and its Chairman was S. Varadachari. A.K. Ayyar, B.L Mitter, Bakshi Tek Chand, K.N Katju, B.R Ambedkar and K.M Munshi were the other members of this Committee. This committee submitted its Report on 21st May 1947 and it was of the opinion that the jurisdiction of the Supreme Court should be wider than those exercised by the Federal Court. On 26th January 1950, the Federal Court was superseded by the new Supreme Court of India.

Pendency of Cases

The 245th Law Commission of India report defines pendency to mean those cases which though filed before the Hon'ble Courts are not disposed of.

According to the data available on the website of the Hon'ble Supreme Court of India, as of 01.07.2020, there are a total of 60,444 matters pending adjudication before the Apex Court. Out of these 40,869 are miscellaneous matters and 19,575 are regular hearing matters. Within the 40,869 miscellaneous matters, 28,852 matters are those where the pleadings are complete and they are ready for hearing and the remaining 12,017 matters are those where the preliminaries like process fee not paid/notice yet not serviced and the pleadings are not complete. Furthermore, the number of matters pending adjudication before a Constitution Bench are 435 (46 main matters + 389 connected matters). Within the 435 matters the number of matters pending adjudication before a five judge bench are 286, followed by 136 matters before a Nine Judges Bench and 13 matters before a Seven Judges Bench.

Recourse to National Court of Appeal

The Law Commission of India in its 14th Report dated 26.09.1958 stated that the Supreme Court of India while exercising the jurisdiction under Article 136 of the Constitution of India in criminal matters must be circumspect in granting special leave in such matters as the practice of granting special leave freely has a tendency to affect the prestige of the High Courts. Further, in the year 1984, the Law Commission in its 95th Report proposed setting up of a Constitutional Division within the Supreme Court which will be assigned a part of the business of the Supreme Court within its jurisdiction. As far as what matters should be assigned to that division, the Law Commission suggested that a) the division must be entrusted with the adjudication of all public law cases within the Supreme Court's jurisdiction and b) only matters of Constitutional law may be assigned to the proposed Constitutional Division which would mean every case involving a substantial question of law as to the interpretation of the Constitution or an order or rule issued under the Constitution or in the alternative every case involving a question of constitutional law.

The issue of the National Court of Appeal was dealt with by the Hon'ble Supreme Court for the first time in the year 1986 in the matter titled 'Bihar Legal Support Society Vs. CJI & Anr.' (1986) 4 SCC 767, wherein the then Chief Justice of India Hon'ble Mr. Justice P.N. Bhagwati observed that 'it would be desirable to set up a National Court of Appeal which would be in a position to entertain appeals by special leave from the decisions of the High Courts and the Tribunals in the country in civil, criminal, revenue and labour cases and so far as the present Apex Court is concerned, it should concern itself only with entertaining cases, involving questions of constitutional law and public law. But until any such policy decision is endorsed by the Government, the Apex Court must interfere only in the limited class of cases where there is substantial question of law involved which needs to be finally laid at rest by the Apex Court for the entire country or where there is grave, blatant and atrocious miscarriage of justice.'

Subsequently, the Law Commission in its 125th Report titled "The Supreme Court-A Fresh Look" which was published in the year 1988 reiterated its earlier recommendations for splitting the Supreme Court and gave an additional reason namely the handicap which the litigant from more distant parts of the Country like Tamil Nadu in South, Gujarat in the West and Assam and other States in the East face in the matter of accessing justice before the Hon'ble Supreme Court. The issue of the National Court of Appeal was once again taken up by the Law Commission in its 229th Report dated 05.08.2009, wherein it recommended the restructuring of the Supreme Court by setting up a Constitution Bench at Delhi and Cessation benches in four regions namely i.e. Delhi, Chennai/Hyderabad, Kolkata and Mumbai. The Commission drew its support from the system prevalent in other countries like Italy, Egypt, Portugal, Ireland, Denmark and United States. Interestingly, it was also recommended that Article 130 of the Constitution cannot be stretched to make it possible to implement the said recommendations and the Parliament should enact a suitable legislation/Constitutional amendment for this purpose.

The Supreme Court in the year 2010 once again reiterated in 'Mathai @ Joby Vs. George & Anr., (2010) 4 SCC 358' that Article 136 was never meant to be an ordinary forum of appeal at all like Section 96 or even Section 100 CPC. Further, while referring the matter to the Constitution Bench it observed that if the Supreme Court entertains all and sundry kinds of cases it will soon be flooded with a huge amount of backlog and will not be able to deal with important questions relating to the Constitution or the law or where grave injustice has been done, for which it was really meant under the constitutional scheme. Interestingly, the Constitution Bench in Mathai @ Joby, (2016) 7 SCC 700 through Hon'ble Mr. Justice Anil R. Dave declined to look into the question of interpretation of Article 136 of the Constitution and observed that no effort should be made to restrict the powers of this Court under Article 136 because while exercising its powers under Article 136 of the Constitution of India, this Court can, after considering facts of the case to be decided, very well use its discretion. In the interest of justice, in our view, it would be better to use the said power with circumspection, rather than to limit the power forever.

The demand for establishing a National Court of Appeal was once again raised before the Supreme Court in 'V. Vasanthakumar Vs. H.C. Bhatia & Ors. (2016) 7 SCC 686,' wherein a mandamus was sought to consider his representation and to take steps for implementation of the suggestion of the Constitution Bench of this Court in the Bihar Legal Support Society's case (supra). Surprisingly, the Union of India took the stand that the proposed National Court of Appeal or Regional Courts of Appeal were neither constitutionally permissible nor otherwise feasible. Further, it was contended by them that Article 136 of the Constitution gives to the citizens of this country an inalienable right to invoke the appellate power of this Court, as such, the power being a basic feature of the Constitution, it cannot be taken away or conferred upon another Court of forum. After taking into consideration of the contentions raised in the bar, the Hon'ble Supreme Court has framed 11 questions for its consideration regarding access to justice, undue delay, regional benches, huge pendency of cases etc. and has referred the matter to the Constitution Bench and the same is yet to be taken up for its consideration.


The Hon'ble Supreme Court way back in 1986 in Bihar Legal Support Society (supra) has rightly observed that if the Apex Court in every case finds some injustice has been done and it grants special leave and interference then that would amount to convening the Apex Court into a regular court of appeal and moreover, by so doing, the Apex Court would soon be reduced to a position where it will find itself unable to remedy any injustice at all, on account of the tremendous backlog of cases which is bound to accumulate. It is high time that the Supreme Court realizes that in the vast majority of cases the High Courts must become final even if they are wrong.

Further, the Supreme Court can take out a leaf from Ireland, which established the Court of Appeal in the year 2014 in view of the large back log of cases and its main function is to hear appeal from the High Court, both Civil and Criminal. The Court occupies a jurisdictional tier between the High Court and the Supreme Court and the only appeals that go to the Apex Court are those which raise issues of major public importance or where the interests of justice require such an appeal.

The Supreme Court of India has always responded and adapted itself to meet the challenges it has faced since its inception. The way the Hon'ble Court has switched to virtual hearings in view of the Covid-19 Pandemic is emblematic of the resilience and resolve of the Apex Court to dispense justice at all cost. We believe it will continue to mould itself to the changing needs of the nation and society as a whole. Likewise, the Supreme Court should rise to the occasion and give a serious thought towards establishment of National Court of Appeal which can simply be done by adjudicating upon the issues pending before it in V. Vasanthakumar (supra) and set the wheels in motion.

Till then, the Supreme Court must remember the quote of Justice Robert H. Jackson, a judge of the Hon'ble Supreme Court of the United States:-

"We are right because we are final:
We are final because we are right".

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