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Smash-and-grab crony league
RAMACHANDRA GUHA
The IPL is bad for capitalism, democracy and cricket
The Hindu (May 25, 2012)
I live in Bangalore, down the road from the Karnataka State Cricket Association (KSCA). I am a member
of the KSCA, which means that I can watch all the matches played in its stadium for free, and from a
comfortable seat next to the pavilion. I exercise the privilege always during a Test match, often during a
one-day international, and sometimes during a Ranji Trophy match. However, I have not yet watched an
Indian Premier League (IPL) game played at the KSCA, nor do I intend to in the future.
My original reasons for boycotting the Indian Premier League were aesthetic. 20-20 lacks the subtlety of
the longer form; no one can build an innings, no one bowls a probing spell. I didn't much care either for
the way the game was packaged, while the man who owned the local Bangalore team was as seen by
someone whose day job is studying the legacy of Ambedkar, Gandhiji, Nehru somewhat on the loud
side.
The sting operation involving some (fringe) IPL players and the fight between Shah Rukh Khan and the
Mumbai Cricket Association both seem to confirm these aesthetic reservations. But in fact the problem
with the IPL goes far beyond petty corruption and boorish celebrities. The Indian Premier League is not
just bad for me, but bad for Indian capitalism, bad for Indian democracy, and bad for Indian cricket.
WITH LIBERALISATION
Let me defend these claims. When the Indian economy was liberalised, in 1991, it unleashed the long-
suppressed energies of the entrepreneurial class. Sectors such as software and pharmaceuticals, that
depended chiefly on innovation and knowledge, prospered. This was capitalism at its most creative;
generating incomes and jobs, satisfying consumer tastes, and also spawning a new wave of philanthropy.
More recently, however, some less appealing sides of capitalism have manifested themselves. The state
retains control of three key resources land, minerals, and the airwaves. These resources have become
enormously valuable with the expansion of the economy, prompting sweetheart deals between individual
politicians and individual entrepreneurs, whereby land, minerals, or spectrum are transferred at much less
than market cost, and for a (quite large) consideration. Creative capitalism has increasingly given way to
crony capitalism, with dire consequences for society, for the environment, and for public institutions.
Hence the 2G scandal, the spike in the Maoist insurgency due to the dispossession of tribals by mining
companies, the killings of whistle-blowers by the land mafia, etc.
The Indian Premier League is decidedly on the crony rather than creative side of the ledger. The original
auction for teams was shrouded in secrecy the allocations were not made on the basis of bids
transparently offered and assessed. Player prices do not accurately reflect cricketing worth either. Thus
foreign players are paid a fraction of what Indian players of comparable quality are paid. The most
egregious form of cronyism, however, is the ownership of an IPL team by the current president (and
former secretary) of the Board of Control for Cricket in India. It is as if Alex Ferguson was
simultaneously manager of Manchester United and the president of the English Football Association.
Tragically, the cronyism runs down the line. The current chairman of selectors is the brand ambassador of
the team owned and run by the Board president. The famous former cricketers who cover Indian cricket
on television have been consultants to the IPL. Other commentators have accepted assignments from IPL
teams. To put it bluntly, their silence on this (and some other matters) has been bought.
The IPL has given capitalism and entrepreneurship a bad game. But it has also been bad for Indian
democracy, in that it has vividly and even brazenly underlined the distance between the affluent, urban
middle classes and the rest of India. Consider the fact that no city in India's largest State, Uttar Pradesh,
which has an excellent Ranji Trophy team, was awarded a franchise. Nor any city in Bihar, Orissa, or
Madhya Pradesh either. To leave out four of India's largest States all cricket-mad, and which
collectively account for close to half the country's population must seriously disqualify the League's
claim to be Indian.'
NAMES AND BIAS
Yet it can still be called Premier,' for it speaks for the more prosperous parts of India, and for the more
prosperous sections within them. The very names of the teams are a clue to its elitist character two
Kings,' two Royals,' and one Knight,' this in a democratic Republic whose Constitution and laws
(rightly) did away with aristocratic titles of any kind.
The IPL is explicitly biased against the poorer States of the Union, and implicitly biased towards what, in
marketing argot, is referred to as S(ocio)E(conomic)C(lass)-1.' Maharashtra has two IPL teams, based in
its largest and richest cities, yet it is the upper strata of Pune and Mumbai society that most closely follow
these teams. Some watch the matches at home, over a drink and after a hard day at the office; others go to
the stadium, seeking vicariously to soak in the glamour of those even richer than themselves. That is to
say, they go not so much to see Virat Kohli or Sachin Tendulkar bat, but to be in the same privileged
space as the Nita Ambanis and the Shah Rukh Khans, this fleeting proximity reassurance that they too are
within that part of India which is Shining as well as Winning.
BALANCE OF POWER
The middle classes of the major metros are large and prosperous enough to sustain the IPL. But the rest of
India, that is to say, the majority of India, does not appear to connect with the tournament. When there is a
match on at the KSCA, there are crowds in the ground and in pubs in central Bangalore, but no interest in
the poorer parts of the city or in villages 10 or 20 miles away.
On the other hand, when the national team plays, as India, the peasant and the slum dweller can follow its
fortunes as keenly as the hedge fund manager and software engineer. The IPL is exclusive; the Indian
team inclusive. Notably, they do not live in separate worlds; rather, they are connected, with the former
having a decided impact on the latter. Had the Indian cricket team taken six weeks off after the 2011
World Cup, they may not have lost four-nil to England in that summer's Test series. Two of India's
leading batsmen and its leading bowler were carrying injuries sustained by playing in the IPL, which was
held immediately after the World Cup. The weariness and the exhaustion carried over into the Australian
series, likewise lost four-zero, and into successive one-day tournaments, where the World Cup champions
were humiliated by such sides as Bangladesh. The ordinary cricket lover now knew what our
professional' cricket commentators were too nervous or too polite to say that too much cricket, and
too much of the wrong kind of cricket, was a major reason behind the disgraceful performance of the
Indian team in the latter half of 2011.
English and Australian cricket administrators may have other (and less salutary) reasons to dislike the IPL
namely, that it has shifted the balance of power in world cricket away from the white countries to
India. However, some former colonial countries should be less than pleased with the tournament as well.
Thus, the international game would benefit hugely if the West Indies were to somehow rediscover the art
of winning Test and one-day matches. Recently, the West Indies have fought hard in series against
Australia and England; their pluck might have been rewarded with victory had they the services of their
best bowler, Sunil Narine; their best batsman, Chris Gayle; and their best all-rounder, Dwayne Bravo
all, alas, choosing to play in the IPL instead of for their national side.
There is a larger, cosmopolitan, reason to dislike the IPL; and also a local, patriotic, one. The baleful
effects of the tournament should worry Indian liberals who admire that form of capitalism which rewards
those with the best ideas rather than those with the best contacts; Indian democrats who wish to nurture a
more caring and just society; and Indian cricket fans who want their team to perform honourably at home
and abroad.
(Ramachandra Guha's books include A Corner of a Foreign Field and India after Gandhi: A history of
the worlds largest democracy).

http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(08)61939-X/fulltext
Alcohol use on the rise in India
Raekha Prasad
The Lancet, Volume 373, Issue 9657, Pages 17-18 (3 January 2009)

With more than half of all alcohol drinkers in India falling into the criteria for hazardous drinking,
alcohol abuse is emerging as a major public-health problem in the country. Raekha Prasad reports.
India's reputation as a country with a culture of abstinence especially in matters regarding alcohol is
underserved, say experts. The country, which has seen a rapid proliferation of city bars and nightclubs in
recent years, is fast shedding its inhibitions about alcohol as a lifestyle choice. This situation has led to
fears of an undocumented rise in alcohol abuse not only among poorer classes but also in sections of
society that were previously considered dry. The health minister has recognised the scale of the
problemand has called for a policy that will regulate sales and the pricing of drink.
Many experts say that although this move is welcome it may not be enough to curb the harmful effects of
the rise in alcohol consumption in society. The increasing production, distribution, and promotion of
alcohol has already seen drink-related problems emerging as a major public-health concern in India. Sales
of alcohol have seen a growth rate of 8% in the past 3 years. Officially, Indians are still among the world's
lowest consumers of alcoholgovernment statistics show only 21% of adult men and around 2% of
women drink. But up to a fifth of this groupabout 14 million peopleare dependent drinkers requiring
help.
The concern, say experts, is that there has been a rapid change in patterns and trends of alcohol use in
India. Chief among them is people are beginning to drink at ever-younger ages. The percentage of the
drinking population aged under 21 years has increased from 2% to more than 14% in the past 15 years,
according to studies in the southern state of Kerala by Alcohol and Drugs Information Centre India, a
non-governmental organisation (NGO). Alarmingly, the study found that the average age of initiation
had dropped from 19 years to 13 years in the past two decades. The centre points out that a powerful
international and domestic alcohol lobby is purposely targeting young Indians. The local industry has
introduced flavoured alcohol drinks to attract previously non-drinking women and young men.
Multinational companies have identified India with its vast unexploited markets as one of the world's
most sought after places for investment. Many alcohol adverts now feature spirited groups of young
people having a good time. Although alcohol advertising is banned in the electronic and print media,
surrogate advertising is rife, argues Monika Arora, director of the NGO, Health Related Information
Dissemination Amongst Youth Student Health Action Network. Drinking water and apple juice is
packaged by alcohol companies. It's all about getting young people to start early and be life-long
consumers. Bollywood films now glorify alcohol where the good guys drink.
The shifting composition of Indian drinkers has seen a rise in the number of Indian women drinking
regularly and heavily. One recent study in the southern state of Karnataka found young women consumed
similar amounts of alcohol to young men on any typical drinking occasion. What is of particular
concernand an important indicator of health risksis that the signature pattern of alcohol consumption
in India is frequent and heavy drinking. More than half of all drinkers fall into the criteria for hazardous
drinking, which is characterised by bingeing and solitary consumption to the point of intoxication.
Moreover, spirits account for 95% of the beverages drunk in India.
Another problem for policy makers is the fact that two thirds of the alcohol drunk in India is unrecorded
because it is either illicit local home brew or has been smuggled into the country. Employers in poor,
marginalised communities sometimes pay wages in alcohol rather than cash, according to WHO. The
hazards of spurious liquor can be fatal, with frequent reports of death, disability, and hospitalisation
resulting from its consumption across the country. One barrier to developing a national alcohol policy for
India, experts say, is the woeful lack of data and research on its national health, social, and economic
effect. What is known is that alcohol-related problems account for more than a fifth of hospital
admissions; 18% of psychiatric emergencies; more than 20% of all brain injuries and 60% of all injuries
reporting to India's emergency rooms. The role of alcohol in domestic violence is substantial: a third of
violent husbands drink, according to a WHO study in 2004. Most of the violence took place during
intoxication. There is evidence even to suggest that the poor are beginning to drink more than they earn
a deadly spiral of alcohol and debt. One recent study by the National Institute of Mental Health and Neuro
Sciences (NIMHANS) in households of rural, urban, town, and slum populations of 28 500 people in and
around the city of Bangalore, Karnataka, found that the average monthly expenditure on alcohol of
patients with alcohol addiction is more than the average monthly salary.
Although the Indian constitution includes the prohibition of alcohol among its directive principles,
alcohol policy is devolved to individual statesas is the levying of taxes on it. Since most states derive
around a fifth of their revenue from alcohol taxationthe second largest source after sales taxthey are
generally ambivalent towards stemming its flow. Moreover, there is a long history in India of a powerful
alcohol lobby with industry figures influencing the political process, both in the form of party donations
and as representatives. But experts argue that Indian society is losing considerably more than it gains.
Because of the political expediency surrounding prohibition, what is not being looked at is demand
reduction strategies, says Vivek Benegal, one of the authors of the report and assistant professor of
psychiatry at NIMHANS. Using their findings in the Bangalore study, researchers from NIMHANS have
calculated that the direct and indirect costs attributable to alcohol addiction is more than triple the profits
of alcohol taxation and several times more than the annual health budget of Karnataka. Extrapolating their
findings to the whole of India they estimate the total alcohol revenue for 200304 of 216 billion rupees
falls 28 billion rupees short of the total cost of managing the effects of alcohol addiction. These included
the tangible costs of health care, occupational, financial, social, and legal factors.
The official response to India's problem remains focused on those in acute need rather than on prevention.
This situation means that official policy concentrates on just the 4% of the alcohol-dependent adult male
populationand ignores the 20% of the population who are at risk of serious alcohol abuse. Experts
argue that government thinking on how best to mitigate the risks for alcohol are 20 years behind that of
tobacco. Under its National Drug De-addiction Programme, the Government of India has funded 483
detoxification and 90 counselling centres. Almost half of attendees are being treated for alcohol
dependency.
But the success of the programmes is low and states fail to adequately fund them, health professionals
say. Doctors working with addicts in government hospitals report a complete lack of non-
pharmacological care and training. Once we've treated them there's no social worker or clinical
psychologist to refer them to so we just send them to AA (Alcoholics Anonymous), says Smita
Deshpande, a senior psychiatrist working in a Delhi state hospital. The problem is that the treatment of
alcoholism is a low priority in Indian's health sector, says Rajat Ray, professor and chief of the National
Drug Dependence Treatment Centre at All India Institute of Medical Sciences. (AIIMS). Just 600 doctors
have been trained to treat alcohol abuse in the past decade. It's seen as deviant behaviour among most
doctors: a hopeless situation that is unrewarding to treat and so there's no motivation or financial
incentive on doctors to work in this field, Ray says.
To address this, the Indian Government has set a target to train, via AIIMS, 1000 doctors, as many
paramedics, and 500 nurses to specialise in alcohol-abuse treatment in the next 4 years. Once trained, the
plan is to deploy them across India's 560 district hospitals to increase access to treatment. Ray and his
team are currently piloting three district training projects in Madhya Pradesh, Assam, and Uttar Pradesh.
There is, however, a growing lobby urging the health ministry to act. Indian Alcohol Policy Alliance, an
NGO aiming to prevent alcohol-related harm through evidence-based policy intervention, says that the
key is to break the stranglehold of state revenue departments who see increasing consumption of alcohol
as a boon to treasury coffers. It is pressing the ministry of health, headed by a minister who has advocated
prohibition in certain states, to take a lead in passing a law that privileges public health over tax receipts.
The lack of a national alcohol policy creates a very difficult situation for health professionals working
to tackle alcoholism, Ray says. Discussions are taking place, but an actual policy, he says, is still in a
formative state.
http://www.thehindu.com/opinion/lead/the-importance-of-the-outsider/article5062035.ece
The importance of the outsider
RAJU RAMACHANDRAN
The Hindu (August 26, 2013)

The proposed Judicial Appointments Commission, in which judges will be marginally outnumbered, will
make the selection system more transparent and help to assess professional merit in a better way
Now that the Union Cabinet has decided on the composition of the proposed Judicial Appointments
Commission (The Hindu, August 23, 2013), an informed debate becomes possible. The commission will
be presided over by the Chief Justice of India, and will include two Supreme Court judges. The non-
judges will be the Law Minister, two eminent persons and the Justice Secretary, who will be the
Member-Secretary. The Leader of the Opposition in either House will be part of a committee which
nominates the eminent persons, the other members being the Prime Minister and the Chief Justice. Thus,
all the organs of the State, as also the citizenry, will be represented. And the judges will be marginally
outnumbered. This is as it should be.
Checks and balances
Recent reactions of senior leaders of the Bar seem to take the view that the independence of the judiciary
would be compromised by outside participation. The Chairman of the Bar Council of India is reported
to have said that we are totally against this National Judicial Appointment[s] Commission Bill because
of the fact that in the process of appointment of judges, we do not want any interference from any
outsider, including the executive (PTI report, August 2, 2013). A later press release of the Bar Council of
India (August 10, 2013) says . lawyers of the country are not going to tolerate the replacement of the
existing collegiums with the proposed Commission, without the representation of the Bar Councils and
the (Bar) Associations. The president of the Supreme Court Bar Association is reported to have said that
loading the Commission with more members from the Executive and including fewer members from the
judiciary would curtail the independence of the judiciary and that the cure should not be worse than the
disease. The Bar will not agree to transfer the power of appointment to the executive. The collegium
system can be improved by making methods of selection more transparent (The Hindu, August 16,
2013).
So far, the central issue of democratic accountability has either not been addressed, or swept under the
carpet. This is the first reason why the collegium system needs to be scrapped. The Constitution functions
under a system of checks and balances. Judges of the superior courts are given the power to strike down
laws of Parliament and the State Legislatures, which in their view violate the provisions of the
Constitution. The judiciary has, in addition, given itself the power to annul amendments to the
Constitution if they violate the basic structure (Kesavananda Bharati, 1973), and the political class has
acquiesced. It is completely undemocratic if the selection to such a powerful institution is to be left
entirely to a body of men and women concededly learned in the law, but unelected, and in practice
virtually irremovable, thanks to a complicated impeachment procedure.
This self-selecting procedure, created by the judges themselves in 1993 is unique to our country. Other
democracies are not worse off in the matters of judicial independence only because they have more
participatory systems of appointment. Independence is nice, but with accountability, it is better.
Not their sole prerogative
There is a second reason why judicial appointments should not be the sole preserve of judges or even a
body of judges and lawyers. The legal profession will assess professional merit only in terms of
technical skills.
Forty years ago, in less salubrious times, the late Mohan Kumaramangalam created fear by stressing the
importance of the social philosophy of judges to justify the supersession of three senior judges of the
Supreme Court for appointment as Chief Justice of India. It is now time to think dispassionately. While
the supersession of a judge can never be justified on the basis of his social or constitutional philosophy,
surely it is a relevant factor to be taken into account at the time of appointment. Even if they consult
senior lawyers, the collegiums only look at technical competence. While selecting lawyers for the High
Court they look at their levels of practice, their incomes, their major arguments and their courtroom
etiquette. And when judges are selected from the High Courts for the Supreme Court, it is mainly on the
basis of their seniority (subject of course to the rejection of those whom the collegium decides to treat as
unfit). Any interrogation on constitutional philosophy is outside the scope of this exercise. There is
only one philosophy say judges and eminent lawyers and that is the philosophy of the Constitution.
And, pray, what is that philosophy? We all know, after all, that the Constitution is what the judges say it
is.
A recent Constitution Bench judgment has created consternation. In another of those rapid judgments, a
five judge bench of the Supreme Court held that reservation in super specialities in the faculty of the All
India Institute of Medical Sciences was unconstitutional. The correctness of that judgment is not the
subject of todays comment, though there is scope for two views on it. What is disturbing is an
observation in the penultimate paragraph that the very concept of reservation implies mediocrity. There
is no nuance here, no qualification, just a bald statement. The judgment is authored by the outgoing Chief
Justice, who was of course under pressure of time. But four other judges who signed the judgment have
not had a problem with the language. This is the judicial perception of reservation, while applying a 63-
year-old Constitution which has affirmative action written into it. Can we seriously find fault with a
legislator who wants to know what a judges constitutional philosophy is?
Tenure
And there is a third reason why outsiders become relevant. Manpower planning is not a concept which
the judiciary has ever considered important. Over the years both in pre- and post-collegium days, we have
witnessed the spectacle of Chief Justices of India occupying office for periods like 41 days in the case of
Justice G.B. Pattanaik, approximately one month in the case of Justices Rajendra Babu and J.C. Shah and
as few as 18 days in the case of Justice K.N. Singh. There has not been a single occasion when a judge
has renounced the high office to make way for a colleague who would have a longer tenure and would
thus serve the institution better. The proposed commission needs to bring in human resource consultants
as well, to ensure that only those with sufficient tenures will occupy these positions.
Similarly, High Court Chief Justices have occupied their positions for as little as three to six months en
route to the Supreme Court. Little concern has been shown for the effect that these short-term
appointments have on administration in the High Courts. Nor has there been too much worry about the
quality of recommendations for judicial appointments by collegiums presided over by such short-term
Chief Justices, who would really have had no occasion to assess the competence of such persons. There
have also been instances where senior judges have been appointed as High Court Chief Justices for just a
few days before their retirement, so that they do not lose out on the benefits of retiring from that higher
position. While the judiciary has found it perfectly reasonable and legitimate to mandate a two-year term
for Directors General and Inspectors General of Police (Prakash Singh, 2006), that unfortunately is not
sauce for the gander.
(Raju Ramachandran is a senior advocate, Supreme Court of India.)

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Restoring the Supreme Courts exclusivity
T. R. ANDHYARUJINA
The Hindu (August 31, 2013)
The countrys highest judicial institution has lost its original character by a vast self-enlargement of its
jurisdiction that has virtually turned it into a general court of appeal
The Supreme Court of India is perceived by the lay public as the most potent institution in the
Constitution by its appellate authority over all courts and tribunals and by its striking orders correcting
and supervising government actions. In the public euphoria over this functioning of the Supreme Court,
there is no awareness that the Supreme Court has radically changed its character and stature which was
prescribed by the makers of the Constitution.
When the Supreme Court was established in 1950, the Constitution conferred on it limited but important
functions of deciding cases involving fundamental rights, cases of Constitutional importance and
substantial questions of law of general importance. The Supreme Court was given a residuary power to
grant special leave to appeal, in its discretion from any judgment of any Court or Tribunal (Article 136 of
the Constitution) sparingly and in exceptional cases. The Supreme Court was not to be the apex court to
decide ordinary disputes between litigants. Only exceptionally, such disputes between litigants would be
decided by the Court. The lower courts and the High Courts were considered as generally competent and
adequate for the dispensation of justice between litigants.
Small and compact
Consistently with this restricted jurisdiction of the Supreme Court, the Constitution provided that the
Supreme Court, like Supreme Courts in other jurisdictions, would be a small, compact court of the Chief
Justice and not more than seven judges unless Parliament otherwise provided. Further, as substantial
questions relating to the interpretation of the Constitution were of the utmost importance, the Constitution
provided that such questions should be decided by large benches of judges and the minimum number of
judges who were to sit for deciding such questions should be five.
From 1950 to about 1990, the Supreme Court generally retained this character comparable to the
character of Supreme Courts in other jurisdictions. Special leave to appeal from a decision of a High
Court or tribunal was sparingly given in the discretion of the Court. The composition of the Court was of
benches of three judges, and five judges and, exceptionally, benches of seven judges and even 13 judges,
as in the famous case of Kesavananda Bharati, decided important cases.
Progressive dilution
Today, all this has changed. The Supreme Court of India has lost its original character by a vast self-
enlargement of its jurisdiction making itself a general court of appeal by routinely entertaining special
leave petitions between litigants which do not involve important constitutional issues or issues of law of
general importance. Up to June 2013, 35,439 special leave petitions which do not involve such issues are
pending in the Court. Public Interest Litigation (PIL), which was laudably innovated by the Supreme
Court in 1970 to redress the rights of disadvantaged sections of the society, has been converted into
litigation for correcting government actions from corruption scams to banning tinted glasses on
automobiles. Writ petitions to enforce fundamental rights under Article 32 of the Constitution are less
than one per cent of the petitions annually admitted by the Court.
Cases of constitutional and national importance have been sidelined and not heard for years. The last
major Constitutional case with a bench of nine judges was decided in 2007 in I.R. Coelho vs. State of
Tamil Nadu which considered Parliaments power to amend the Constitution by including statutes in the
Ninth Schedule of the Constitution. Important Constitutional cases referred to nine judges such as the
scope of Interstate Trade, Commerce & Intercourse, the right of States to tax minerals have not been
heard for several years. At least five cases for consideration by seven judges, and 36 cases for
consideration by a bench of five judges are pending for several years. Only 15 cases were decided by five
judges between 2011 and 2013.
Bench strength
With the increasing load of appeals from High Court decisions the number of judges have had to be
increased periodically from eight judges in 1950 when the Constitution came into force to 31 in 2008.
Presently, the Supreme Court is composed of one bench of the Chief Justices Court of three judges and
13 or 14 benches of two judges in 13 or 14 courtrooms sitting regularly day after day. In no Supreme
Court of other jurisdictions are there benches of 13 to 14 courts of two judges each as the Indian Supreme
Court now has. Supreme Courts of other jurisdictions such as the United States, the United Kingdom,
Canada, Australia and South Africa sit either en banc, i.e. of its full strength, or in large benches of five or
more judges considering the importance of the case, as such a large composition of judges is considered
fitting for deciding important cases in the highest court.
By contrast, the Supreme Court of India today decides cases of major importance by benches of two
judges. Recently, the Supreme Court nullified Section 8(4) of the Representation of the People Act, 1951.
This important decision on the interpretation of Parliaments legislative powers on members of
legislatures convicted of offences was delivered by a bench of two judges of the Court despite the
Constitutional requirement that substantial questions of interpretation of the Constitution should be
decided by not less than five judges. Important policy matters are decided by a bench of two judges of the
Court. In the 2G Spectrum Case, a bench of two judges prescribed a national policy for disposing of all
public resources by public auctioning. A bench of two judges has laid down the law in the vexing cases of
inordinate delay in the disposing of petitions for clemency by the President in death penalty cases. The
important question of decriminalising homosexuality under the Indian Penal Code has been heard, and the
judgment which is reserved will be given by a bench of two judges.
When Sir B.N. Rau, the Constitutional Advisor at the time of the framing of the Constitution met Justice
Frankfurter of the U.S. Supreme Court, he was told by Justice Frankfurter that the jurisdiction exercisable
by the Supreme Court should be exercised by the full court and the highest court of appeal in the land
should not sit in divisions. The Drafting Committee of the Indian Constitution also drew attention to the
practice in the U.S. Supreme Court of not sitting in divisions and how the judges of the Supreme Court of
the U.S. attached the greatest importance to this practice.
Separate court
In most of the other Supreme Courts, the cases decided by them are few and are of constitutional and
national importance leaving the lower Courts to decide finally the cases which the Supreme Courts do not
consider deciding to overload themselves with. The Supreme Court of the U.S. selects from among 7,000
petitions for certiorari (admission) around 100 cases in which certiorari is granted. On an average per
year about 80 cases are decided by the Supreme Court of the U.K., the Supreme Court of Canada and the
High Court of Australia. The Constitutional Court of South Africa which has been ably functioning
since 1994 deciding major constitutional cases and cases of national importance decides on an average
38 cases per year. In contrast in 2012, the Supreme Court of India decided 898 cases, with few cases of
constitutional or national importance.
The Supreme Court of India understandably is compelled to take up cases from 24 High Courts whose
judgments increasingly require correction, and litigants have no forum for their correction except the
Supreme Court. In this situation, the only solution to preserve the exclusivity and standing of the Supreme
Court is to create a separate national court of appeals distinct from the Supreme Court in which appeals
from High Courts and Tribunals can be entertained. Such a provision for a Supreme appellate court at the
highest level distinct from a Constitutional Court is provided by the Constitution of South Africa.
Simultaneously, the number of judges of the Supreme Court can be reduced from 31 to a smaller strength
and the Court can function with benches of three and five judges as it functioned earlier. Above all, it is
imperative to create awareness by lawyers, judges and informed public opinion of the necessity for
restoring the character and standing of our Supreme Court comparable to the Supreme Courts in other
jurisdictions.
(T.R. Andhyarujina is a senior advocate of the Supreme Court and former Solicitor General of India.)