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NEW DELHI: For the first time in its nearly 70-year-long history, the Supreme Court is set to realise the dream of Constitution-framers by creating a permanent five-judge Constitution bench , to be available round the year to adjudicate complex constitutional questions and interpret laws.

Starting with a strength of eight judges in 1950, including the Chief Justice of India, the judges’ strength is now 34, with a recent amendment by Parliament after CJI Ranjan Gogoi wrote to Prime Minister Narendra Modi outlining the urgent need for an increase in SC judges’ strength in proportion to the increase in litigation.

This gave CJI Gogoi freedom to decide that from October 1, the SC will have a permanent five-judge bench. As per earlier practice, a two-judge bench, if it found an important question of law in a case, referred the issue to a three-judge bench, which referred certain select important cases for adjudication by a Constitution bench.

The CJI then used to weigh pendency of cases, engagement of judges in other important cases which were at a stage of being partly heard and then select five judges who could take up Constitution bench matters without disturbing the rate of disposal. Over the last three decades, setting up five-judge benches has been a challenging task for successive CJIs, given the exponential increase in filing of cases, triggered by numerous SC decisions expanding the writ jurisdiction to create the instrument of PIL and widening the span of fundamental rights.

The SC also has 164 matters referred by two-judge benches to three-judge benches. CJI Gogoi has decided to set up five permanent three-judge benches to take up these long-pending 164 cases. Till now, only one or two three-judge benches functioned daily. But with routine workload assigned to these benches, it prevented them from devoting adequate time to hear detailed arguments in these cases.

PILs raising important questions of law, scams and human rights violations have been consuming significant judicial time, making it difficult for successive CJIs to disengage judges from such issues and include them in Constitution benches, a process that would block five judges for a long period.

In the US and certain other countries, all the judges of the Supreme Court sit together and decide those petitions which are certified by the full court to be of constitutional importance. Nearly 90% of the cases filed in the US SC are rejected at the threshold and never heard by the court.

CJI Gogoi, as head of the collegium, would be credited for appointing a record 14 judges to the SC. During his tenure as CJI, the SC twice achieved its full strength — of 31 judges in May this year and again of 34 judges now. With four new judges scheduled to take oath on Monday, the CJI worked out a scheme by which the SC would truly discharge its duties as a constitutional court with a permanent five-judge bench.

There are 37 matters pending for adjudication by the Constitution bench. The Ayodhya issue had been gathering dust since 2010 and CJI Gogoi decided to take it up despite the option of keeping pending a case that is termed as most important in judicial and national history.

Even during the day-to-day hearing of the Ayodhya issue, the CJI had to squeeze out an hour daily to ensure that chambers for the new judges got ready prior to them taking oath to ensure that a full-strength SC functioned smoothly.

With the setting up of a permanent five-judge Constitution bench and five three-judge benches, as many as 20 of the 34 benches would be engaged in adjudicating constitutional questions and important matters. The rest 14 judges would function as seven two-judge benches.

With the SC deciding to amend its rules allowing the CJI to set up single-judge benches for dealing with anticipatory and bail petitions, as was the practice till the 1980s, there could be more than seven benches that could be formed by CJI Gogoi for expeditious reduction in pendency of cases which has risen to nearly 60,000 cases.



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