To strengthen the Supreme Court, divide it

Why in the News

The Supreme Court ended 2025 with 92,318 pending cases, its heaviest backlog ever, and its constitutional work has shrunk sharply. This has revived the proposal to split it into a lean Constitutional Court and regional Courts of Appeal. The debate is whether division restores the court’s constitutional role or dilutes its authority.

What is the proposal to divide the Supreme Court?

1. What it is: A Constitutional Court of about 11 judges in Delhi would hear only constitutional cases and substantial questions of law. Four or five regional Courts of Appeal would take ordinary appeals, like district hospitals freeing specialists for hard cases.
2. Law Commission plan: The 229th Law Commission Report (2009) proposed a Delhi Constitution Bench and four regional Cassation Benches for ordinary appeals.
3. Recent backing: A Parliamentary Standing Committee recommended regional Benches in 2023, and the Union Law Ministry accepted it.
4. The takeaway: Sorting constitutional cases from routine appeals lets questions shaping the Republic skip the queue of private disputes.

Why has the court drifted from its constitutional role?

1. Unheard reference: In 2016 a Bench asked whether the court was drowning in ordinary appeals. Its 11 questions, referred to a larger Bench, remain unheard.
2. Shrinking constitutional work: Constitution Benches decided fewer than 10 cases a year over the last decade, against over a hundred in the early 1960s.
3. Special Leave Petitions: Special Leave Petitions (SLPs) under Article 136 are discretionary appeals meant as a rare safety valve. By one count, they formed most of the admission docket in 2011.
4. Court of fourth appeal: A Constitution Bench in Bihar Legal Support Society (1986) said the court was never meant for ordinary appeals. It has since become a routine court of fourth appeal, above the High Courts.
5. More judges, same backlog: Parliament raised the sanctioned strength to 38 in 2026, but the caseload outpaces any reasonable enlargement.

What do other democracies show about splitting and filtering?

1. United States: The U.S. Supreme Court sits atop 13 federal Courts of Appeals and decides only a sliver of cases.
2. South Africa: A Constitutional Court in Johannesburg hears constitutional cases, and a Supreme Court of Appeal in Bloemfontein hears the rest.
3. Germany: The Federal Constitutional Court in Karlsruhe hears only constitutional matters, and specialised federal courts take other law.
4. Brazil: The 1988 Constitution created a Superior Tribunal of Justice to take appeals off the Supreme Federal Tribunal, but the split alone did not ease the backlog.
5. Filtering power: Brazil’s backlog fell only after a 2004 reform let its apex court refuse constitutional appeals lacking a “general repercussion” beyond the parties.

Does dividing the court weaken its authority?

1. Indivisibility concern: Chief Justices warn that regional courts would look like lesser venues and dilute one final court’s authority.
2. Already divided: The court already sits in about a dozen small Benches that often contradict each other, so its unity exists only on paper.
3. Route without amendment: The 229th Report argued that Article 130 (the court may sit outside Delhi where the Chief Justice of India decides, with the President’s approval) may permit regional Benches without a constitutional amendment.

Challenges

1. No admission filter: Without a filter, a Constitutional Court would inherit the same congestion in miniature.
2. Institutional resistance: Opposition from successive Chief Justices has stalled reform for years.
3. Conflicting regional rulings: Separate Courts of Appeal could rule differently on the same law, with no settled way to reconcile them.

Way Forward

1. Hear the reference: The Chief Justice of India should list the pending 2016 reference before a larger Bench.
2. Regional Benches first: The Chief Justice, with the President’s approval, should set up regional Benches under Article 130.
3. Admission filter: A test similar to Brazil’s “general repercussion” should confine the Constitutional Court to questions of wide importance.

Conclusion

The Supreme Court’s weakness lies less in too few judges than in an unsorted docket that buries its constitutional work. Whether the court hears its pending reference and pairs any split with an admission filter will decide if division restores its authority or merely relocates the queue.

Key numbers

1. Constitution Bench output, early 1960s: An average of 134 cases decided a year.
2. SLP share of the admission docket, 2011: 84.6%.
3. Pendency trend: Near 60,000 when the Bench grew to 34 judges (2019).
4. Cases in 2025: 65,615 disposed of, against 75,410 fresh matters filed.
5. U.S. filter: Review granted to roughly one per cent of about 7,000 petitions a year, a discretion held since 1925.

Matching Previous Year Question

“[2021] We adopted parliamentary democracy based on the British model, but how does our model differ from that model? 1. As regards legislation, the British Parliament is supreme or sovereign but in India, the power of the Parliament to legislate is limited. 2. In India, matters related to the constitutionality of the Amendment of an Act of the Parliament are referred to the Constitution Bench by the Supreme Court. Select the correct answer using the code given below. (a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2 ANSWER: (c)”