In May 2005, a five-judge bench of the Supreme Court referred to a seven-judge constitution bench the question relating to the interpretation of the word industry in the Industrial Disputes Act, 947. Almost eight years later, the matter is still pending in the apex court.

Similarly, on March 30, 2011, a three-judge bench headed by then Chief Justice of India S H Kapadia referred the Mineral Area Development Authority versus Steel Authority of India Ltd case, which dealt with the important issue of royalty on minerals, to a nine-judge bench. This case has also not been heard till date.

Another important matter that is awaiting the constitution of a larger bench is the presidential reference in the Sutlej Yamuna Link (SYL) canal case, pending since 2004.

With data compiled by the Supreme Court itself stating that there are over 66,800 cases pending in the apex court  66,809 as on March 1, 2013  there seems to be little time for judges to decide on 750 constitution bench matters which have to be heard by a bench of five or more judges  754 as in November 2010, according to figures collected by academic Nick Robinson of the Centre for Policy Research.

This, however, includes cases that may not involve an important law point, but have been referred to larger benches because judges on smaller benches were unable to reconcile their contrasting judgments.

"The problem has arisen because the old premise that only matters of substantial questions of law should be brought to the Supreme Court has become blurred. Due to a growing number of legislations, which resulted in setting-up of tribunals whose orders can be directly challenged in the apex court, the Supreme Court has been turned into a court of appeal while the high courts are becoming redundant. Now, the tendency is to bypass the high courts and come straight to the Supreme Court," said senior lawyer Vivek Tankha.

But most jurists and legal experts feel that constitution bench cases should receive priority.

"There was a time when the Supreme Court used to give due priority to questions where interpretation of the Constitution was required. This became the settled law. While, due to Article 32, which allows any individual to invoke the Supreme Court to protect his human rights, we can't compare our apex court with the United States Supreme Court, questions certainly arise when important cases are kept pending. If judges stop entertaining frivolous matters or such matters that are best left to the lower courts, the pendency would automatically come down. Also, since we now have 31 judges in the apex court, why can't we have a full-time five-judge constitution bench?" said former CJI J S Verma.

As per available data, of the 66,809 pending cases, 37,339 are "admission (miscellaneous) matters" while 29,470 are "regular hearing matters". What, however, is surprising is the huge number of "incomplete miscellaneous matters"  26,075  that are cases where preliminary requirements like court fee payment, service of notice, pleadings have not been completed.

"Over the years, in addition to being the Constitution court, the Supreme Court has also become a national court of appeal. It is one thing to say that Supreme Court should be selective and discerning in the kinds of cases that it hears and another to say that it must hear only constitutional matters. But there is no reason why there shouldn't be a permanent constitution bench, with its composition changing every six months, which hears constitutional matters five days a week and not just three days," said senior lawyer Raju Ramachandran.

Stating that the "fundamental problem" that results in mounting pendency is time management, he added: "The days of endless oral advocacy must end and lawyers must also put their propositions down in writing. Judges, on their part, must fix a time frame for each lawyer to make his/ her submission and guarantee them that time to have their say without too many interruptions."

In its 95th report submitted in 1984, the Law Commission of India recommended that the SC should have two separate divisions  constitutional division and legal division. Reports of many parliamentary standing committees have also favoured separate constitutional benches in the SC.

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