National Court of Appeal
A public interest litigation demanding the establishment of National Court of Appeal (NCA) was filed in the Supreme Court. The Supreme Court has referred it to constitution bench of five judges as the issue relates to access to justice, which is at the core of our constitutional values. Although there is little scope for the creation of NCA under our constitutional structure, the idea has once again sparked a nationwide debate on the need for NCA.
What is a National Court of Appeal?
The Supreme Court acts as a final court in dealing with criminal and civil appeal to constitutional questions of law. To overcome the inefficiencies faced by the Supreme Court, an often repeated suggestion is the establishment of a NCA which would act as intermediate forum between the Supreme Court and the high courts’ of the country. The suggestion is that if NCA with regional benches in Chennai, Mumbai and Kolkata could deal with appeals in civil, criminal, labour and revenue matters arising from the decisions of the High Courts and tribunals, then the much relieved Supreme Court could hear only matters of constitutional law and public law.
Why there is a need for NCA?
Mundane matters reduce court’s efficiency
Unlike the American Supreme Court, the Indian Supreme Court is a multifarious institution dealing with a variety of civil and criminal appeals. Out of those appeals, most of them are mundane disputes such as rent control quarrels between landlords and tenants, bail pleas, dishonoured cheques, traffic violations, factual squabbles over tax assessments, internal managerial rows concerning societies and trusts etc., which flood the Supreme Court. As a result of entertaining these everyday appeals, as Chief Justice Thakur has pointed out, 98% of the working time of the Supreme Court judges is wasted on dismissing these cases. It has been criticized that the Supreme Court is not performing its real mandate of a Constitutional Court. Thus, it is being suggested that setting up of a NCA would take up the Supreme Court’s appeals jurisdiction and will give Supreme Court its much wanted time to perform its mandated functions efficiently.
The decline of constitution benches
Article 145(3) of the Constitution mandates that a minimum of five judges sit for the purpose of deciding any case involving a substantial question of constitutional law. But owing to the enormity of cases, division benches of two judges decide the important cases requiring a nuanced interpretation of the Constitution. For example, a bench of two judges has delivered judgments in important cases such as Suresh Kumar Koushal v. Naz Foundation (reversed the Delhi High Court’s landmark judgement of decriminalizing homosexuality), Shreya Singhal v. Union of India (Section 66A of the Information Technology Act was struck down) etc.
According to a study conducted by Nick Robinson titled “A Quantitative Analysis of the Indian Supreme Court’s workload”, the Supreme Court had decided over 100 cases in a year in the 1960s, but in the past decade, owing to the enormity of workload, the average is now lesser than eight constitution benches a year. Between 2005 and 2009, constitutional benches comprising five judges or more have decided only a paltry 0.12 per cent of the court’s total decisions. It is feared that any given pair of two individuals vested with the enormous power of ruling conclusively on significant matters of public importance may inflict dangerous judicial pronouncements. With this data, it is clearly evident that the manner of functioning of the Supreme Court is far from what our Constitution’s framers had envisaged.
Ease of access
Geographical proximity to the court is a determining factor of access to justice. The fact that the Supreme Court is situated only in New Delhi hampers the accessibility to litigants from south India. This has been substantiated by a study conducted by Mr. Robinson. According to the study, of all the cases filed in the Supreme Court, the highest numbers are from high courts of the northern States (12 per cent from Delhi, 8.9 per cent from Punjab and Haryana, 7 per cent from Uttarakhand, 4.3 per cent from Himachal Pradesh, etc.). The lowest number of cases has originated from the high courts of southern states (Kerala 2.5 per cent, Andhra Pradesh 2.8 per cent, Karnataka 2.2 per cent and a paltry 1.1 per cent from Madras High Court). As access to justice is proportionate to distance, there is an urgent need to establish courts like NCA with regional benches to address this inequitable state of affairs.
Backlog of cases
Although the Supreme Court increased its speed of disposing the cases, which is 47,424 in 2015 as compared to 45,042 in 2014 and 40,189 in 2013, there is still an enormous backlog of staggering 59,468 cases as of February 2016. In this scenario, NCA would help in reducing the burden by disposing the mundane cases; and it may also help in clubbing those cases which needs clarification from the Supreme Court.
What are the criticisms of NCA?
It is feared that attempts like this are made by the other organs of the state to curtail the constitutional powers of the Supreme Court. The problem of backlog of cases has been viewed as a tool in the hands of the other organs of the state to curtail the court’s powers. This method has been employed time and again by leaders in stable democracies. For example, Franklin D. Roosevelt used his presidential powers to reorganize the Supreme Court of U.S. when it was delivering many death blow judgments to the legislations brought in under the rubric of the New Deal. This attempt though was thwarted by the Chief Justice highlights how in the name of reorganization, powers of the Supreme Court could be attempted to be curtailed.
Further, it is held that the establishment of NCA would require an amendment in Article 130 of the Constitution which in turn would change the constitution of the Supreme Court completely.
Lastly, establishment of NCA would increase the burden on the exchequer and similarly the expenses and hardships of the litigants will also increase.
What is the stand of Supreme Court on creating an NCA?
To avoid hardships to litigants who have to come all the way to Delhi to fight cases and ease its own burden, the Supreme Court, as early as 1986, recommended the establishment of an NCA. But, subsequently, it changed its stand with the subsequent Chief Justices not favoring the bifurcation of the judicial powers.
Presently the outlook has changed completely with the Chief Justice Thakur countering the objections raised by Attorney-General Mukul Rohatgi that a National Court of Appeal is “neither permissible nor desirable”. Chief Justice Thakur strongly objected the attorney’s views by asking, whether the government has failed to see the enormity of cases pending in an overburdened Supreme Court for eight to 10 years. Adding further, the Bench comprising the Chief Justice observed that such a delay amounts to violation of a citizen’s fundamental right of ‘access to justice’ under the Constitution.
What is the stand of government on creating an NCA?
A government order dated December 3, 2014 rejected the proposal of setting up of NCA stating that such a court of appeal is constitutionally impermissible. It has said that idea of NCA is a “fruitless endeavour” as it will not lessen the burden of 2 crore cases pending in trial courts The three grounds on which the government rejected the plea are:
- As per the constitution the Supreme Court always sits in Delhi,
- The idea of NCA was consistently opposed by the Chief Justices of India in the past,
- According to the Attorney-General, an NCA would “completely change the constitution of the Supreme Court” and establishing NCA in between the High Court and the SC would be a dilution of the judiciary.
What is the current status of the proposal?
In March 2016, the Supreme Court had decided to constitute a Constitution Bench to debate on the idea of an NCA. If a verdict is delivered in favor of NCA, then it would prompt the Parliament to amend the Constitution itself to make room for NCA.
What were the recommendations of the previous law commissions?
The 229th report of the Law Commission suggested retaining the New Delhi bench of the Supreme Court as a Constitutional court and establishing Cassation Benches of the Supreme Court at New Delhi, Chennai/Hyderabad, Kolkata and Mumbai. The report viewed that no constitutional amendment is required since the Article 130 of the Constitution provides that the Supreme Court can be located in Delhi or at any other place as the Chief Justice of India with the approval of the President may decide from time to time. It also gives example as how this basic model with necessary changes has performed effectively in countries like Italy, Egypt, Ireland, the U.S. and Denmark. The report reached its conclusion after referring to the 95th report (“Constitutional Division within the Supreme Court — A proposal for”), 125th report (“The Supreme Court — A Fresh Look”) and the 120th report (“Manpower planning in judiciary”) of the Law Commission.
What is the way forward?
The constitution mandates the Supreme Court to have two types of jurisdiction: original and appellate jurisdiction. The court therefore is not only seen as an arbiter of constitutional disputes but also as a plenary body to settle the law of the land. The constituent Assembly believed that the Supreme Court would exercise its discretion in choosing its own scope of work and assumed that the Supreme Court would not be a body to settle ordinary disputes that had no larger public bearing. It instead believed that the lower judiciary and various high courts would be equipped to dispense such mundane matters. Thus, the Supreme Courts interference in mundane disputes today is not to be seen as a product of any structural problem but rather its own deliberate decision to use its power to grant special leave to interfere in mundane disputes. So, with this state of affairs, it is argued that the establishment of NCA would not reduce the burden on the Supreme Court. Thus, the Supreme Court must use its authority to grant special leave only in exceptional cases, where a particular interpretation of a law is required for definite resolution.
It is considered the issues concerning the Indian Judiciary as a whole are deep rooted for the NCA to offer a solution. It is suggested that focus should be made to strengthen the base of judicial edifice instead of trying to alter the core structure of the judiciary. Thus, the solution lies in the adoption of bottom up approach. What the NCA aims to achieve can be easily achieved by strengthening the lower judiciary. Correspondingly, the high courts can be viewed as a regular and in majority of the cases, a final appellate court. To achieve this, socially conscious and meritorious candidates who adhere to the best constitutional values has to be elevated as judges to our subordinate judiciary and the high courts. This would free Supreme Court from acting as a routine court of appeal and will reduce its burden of acting as a corrector of simple errors.
According to the data released by the National Judicial Data Grid (NJDG), civil cases are not likely to get fully disposed of and the criminal cases will take more than 30 years to get disposed off from the files of India’s lower courts. So, the need of the hour is a more robust subordinate judiciary in the place of the feeble infrastructure to support our justice delivery system. This will negate any need on the part of majority of litigants to approach the Supreme Court. Also, the practice of using High Courts as a mere stepping-stone towards the end of judicial hierarchy should be discouraged and its glory should be restored.
Conclusion
An institution which pulls up several other bodies for defects and deficiencies must be above criticism of any nature. A strong political will is needed to effect changes to ensure smooth and effective functioning of the Supreme Court.
