I. Introduction

The Indian Judiciary plays a significant role in fulfilling the aspirations of citizens and in the protection of their rights. But when it fails to discharge its constitutional obligations, the public questions it. One such example is of a Puducherry based advocate, Mr. V Vasanthakumar, who filed a PIL[1] in the Supreme Court of India, praying for the establishment of a National Court of Appeal (“NCA”) at Chennai, Mumbai and Kolkata that would act as an intermediate forum between the Supreme Court and the various High courts in India. It was submitted before the Court that the establishment of an NCA would rectify the inequality in the state of affairs as it would gradually have benches in almost all regions of the country, and the burden on the apex court would also be reduced. It was further contended that the NCA would act as the final court of appeal with regards to the decisions of the High Courts and tribunals within their jurisdiction in civil, criminal, labour and revenue matters whilst the Supreme Court would only hear matters relating to constitutional law and public law.

II. Origin

The Supreme Court of India, as the highest court of the land, has been performing a sacrosanct function to ensure that the country is governed adhering to the principles of the rule of law for over more than six decades. It has evolved remarkably well, steering the country through thick and thin. It also has had a tremendous contribution to the jurisprudential landscape, not just in the country but also internationally. The time has come, however, to revisit the court’s function and align it with the needs of today.

The concept of NCA first came up in the Bihar Legal Support Society case in 1985.[2] Further, a report of the 229th Law Commission of India[3] submitted to the Government of India in 2009 had recommended the setting up four regional benches of the Supreme Court at Delhi, Chennai/Hyderabad, Kolkata and Mumbai to deal with appeals arising out of High Courts[4]. But the Supreme Court rejected this idea in 2010, elucidating that dividing the Supreme Court would affect the country’s unitary character.

There’s a need to draw a fine line of difference between establishing NCA and Supreme Court benches. While the proposal of setting up SC benches is to ease up work and provide easy access to people, NCA is directed at diluting power of the highest court of the land. Even the idea of bifurcation of judicial powers, and that of forming regional benches of the apex court was not acceptable to some of the Chief Justices of India.[5]

The issue was discussed yet again in 2015 in V Vasanthakumar’s case[6] and the Central Government had rejected Mr. Vasanthakumar’s proposal for the establishment of NCA with regional benches. Three grounds were cited for rejecting the idea — The Supreme Court always sits in New Delhi as per the Constitution; the Chief Justices of India in the past have “consistently opposed” the idea of an NCA or regional benches of the Supreme Court; and the Attorney-General said an NCA would “completely change the constitution of the Supreme Court”.[7] The Attorney General had opined that this would require an amendment to Article 130 of the Constitution of India, which he said was impermissible, as it would change the setup of the Supreme Court completely.

As to the current status, the Supreme Court (in March 2016) decided to form a Constitution Bench comprising of Chief Justice TS Thakur, Hon’ble Justice R Banumathi, and Hon’ble Justice Uday U Lalit to debate the idea of an NCA.

III. Aims

Let us first understand why there have been constant supportive claims over the creation of such a court, while also understanding why this is not feasible.

1. Providing relief to the overburdened Supreme Court: The main objective of establishing such a court is to relieve the Supreme Court of the burden of hearing regular civil and criminal appeals, allowing the court to concentrate on determining only fundamental questions related to interpretation of the Constitution and issues of national importance.

This can, however, be achieved not by adding another layer of judicial body but by strengthening the judiciary at the lower level which would perform what the NCA is targeting to achieve. Correspondingly, as was always intended, the High Courts can be viewed as the regular and, in most cases, final appellate court. No doubt, to achieve this, it is necessary that there is greater rigor involved in choosing our judges. If socially conscious and meritorious women and men, who subscribe to the best constitutional values, are elevated as judges to our subordinate judiciary and the High Courts, the idea of viewing the Supreme Court as a routine court of appeal can be renounced altogether. This would allow the Supreme Court to be more astute in its use of discretion, thus substantially reducing its burden of acting as a corrector of simple errors. Thus, the underlying solution to all the problems lies in strengthening the judiciary system right from the bottom.

2. Increasing geographical proximity: Another issue of concern brought up in the PIL was that 9.5 percent of all the appeals were from Delhi because of the proximity, whereas only 2 percent were from Kerala[8]. From the above figures, it seems that access to justice is an illusion for people living in southern states who fail to approach the Supreme Court due to the lack of means and facilities. They face problems – both physical and financial because they have to travel to New Delhi to file appeals in the SC, stay in the national capital indefinitely, consult senior lawyers, and pay for hotel bills. Therefore, the concept of NCA was also put forward in order to avoid hardships to such litigants.

However, Advocate Arvind Dattar, an expert in constitutional law, says, “Splitting the Supreme Court will be a very regrettable step. The Supreme Court has to be at one place and there can’t be circuit benches like High Courts.”[9] The US Supreme Court exercises jurisdiction like the Indian Supreme Court, where a single court consists of a few judges. For providing greater access to citizens from far-flung areas, it has been proposed that there could be dedicated courtrooms with video conferencing facilities for litigants and lawyers from such areas. This will avoid the need of setting up regional benches and even an NCA to a great extent. But this issue needs to be deliberated upon before any step is taken further. For a long-term solution, we need to focus on the courts of first instance, i.e. trial courts as has been mentioned earlier. If we do that, the need of approaching the Supreme Court will substantially reduce.

IV. Criticism

Some of the arguments against the constitution of NCA can be summarized as under:

1. Large-scale amendments in Constitution required: For bringing the NCA into existence, several provisions of the Constitution related to independence of judiciary, hierarchy of courts, powers of Supreme Court, appointment of judges, etc. will have to be amended. There is already a tussle between the supremacy of Government and Judiciary over transparency in the appointment process, eligibility criteria, a permanent secretariat for the collegium and a process to evaluate and deal with complaints against candidates as highlighted in the draft Memorandum of Procedure. Although the Government and the Judiciary are on the same page over the issue of creating a permanent secretariat, the remaining issues are in conflict. Thus, the NCA would increase this tussle as it would stand shoulder to shoulder with the highest court of land in at least civil, criminal, labour, and revenue matters.

1. Dilution of powers: Currently, many citizens resort to Article 136 of the Constitution as a matter of right. With the subject matter of disputes being divided between NCA and the Supreme Court, Supreme Court’s exclusive power to entertain special leaves to appeals under Article 136 will be significantly diluted which would severely affect its unitary and integrated structure. In recent years, the Supreme Court has been very successful and its jurisprudence has been acknowledged worldwide. At this point, if NCA comes into picture, it will deprive the apex court of its appellate jurisdiction.

1. Increased costs/ financial burden: It costs about Rs.80, 000 per month[10] for the Government exchequer to pay a high court judge. If NCA comes up, it will further burden the Government treasury. The problem lies not in paying the judges but in paying them for work which can be easily done by the existing system if organized efficiently. Thus, the constitution of NCA does not seem to be a financially viable option.

V. Reforms

Some simple judicial reforms can be introduced and implemented in a manner so as to reduce the burden on the courts as well as increase their efficacy, such as:

1. The total number of judges needs to be increased in the already existing hierarchy to speed up work and reduce the pendency of cases. Apart from that, the existing vacancies of judges must also be filled up. Although this might be a slow process, it is necessary in order to overcome the shortcomings faced due to the poor judge-population ratio in the country. Also, while promoting judges from lower courts to high courts, their meritocracy and experience needs to be scrutinized properly. Political pampering has to be reduced if the judiciary has to keep its stature.

2. Courts should be backed by IT infrastructure to reduce paperwork and files. They can be provided with facilities like video conferencing and the staff can be trained to be tech savvy. In the US, not only has videoconferencing proven to be effective within the courtroom, but it likewise benefits attorneys and judges by saving time and cutting costs of the entire judicial process. While the preliminary costs can be substantial, the cost-benefit analysis shows that these costs are quickly offset by the enhancements that it brings to the courtroom.[11] Even the Amicus Curiae in the said case, Mr. Salman Khurshid, opined that the court could consider making use of technology during the admission stage by using video conferencing.[12]

3. The right to appeal must not be treated as a right but as a privilege to be granted on the merits of individual cases. Article 136, which grants an extraordinary jurisdiction to the Supreme Court to entertain special leaves, has been highly suppressed due to indiscriminate filing of appeals. Broad guidelines must exist as to what kind of petitions should be entertained and must be strictly implemented so as to relieve the court’s burden.

4. Adjournments must be granted on strict merits and not as a matter of course. Recently, Delhi High Court has issued a circular to all the six district courts which stated that any adjournment sought by any party, whether a litigant or the investigating agency, in cases will attract a monetary fine[13]. The step will not only ensure free and speedy trial, especially in cases where proceedings are stuck between deposition of witnesses and their cross-examination but will also reduce the burden of Supreme Court subsequently.

5. Different departments can be created within the Supreme Court that would cater to a particular arena say constitutional matters or criminal cases. The idea of a constitutional division within the SC came up in the 95th report of Law Commission[14]. For those who proclaim that the SC is meant to deal only with constitutional matters of high importance, this can be a plausible solution.

VI. Conclusion

The Indian Judiciary has time and again proved itself capable of handling delicate issues and has carved a niche for itself in people’s minds. However, certain factors have led to deterioration in its performance, and NCA could be one of them.

The true legal landscape of the country doesn’t lie in the number of courts and judges but in the quality of judgments catered to the people. Thus, what the country needs is not a series of new courts but a well monitored and integrated judicial system that can help people attain justice in the right manner and at the right time. The focus should be on elevating its functioning by introducing certain judicial reforms that might prove to be fruitful if implemented in an appropriate manner. If we are to live in a country where justice is no longer elusive for a common man, it is high time to consider the situation of judiciary and work for its betterment, step by step. The time to act is now.

Aayushi Bindal and Nishi Bharatiya (V-II)

[1] V. Vasanthakumar vs. Sri H.C.Bhatia, Writ Petition (C) 36/2016

[2] Bihar Legal Support Society vs. Chief Justice of India, (1986) 4 SCC 767

[3] Report (Law Commission of India); available at http://lawcommissionofindia.nic.in/reports/report229.pdf

[4] Id at 24

[5] All you need to know about National Court of Appeal ,The Hindu, April 28, 2016 , available athttp://
www.thehindu.com/news/national/national-court-of-appeal-the-hindu-explains/article8532094.ece

6 supra note 1

[7] supra note 5

[8] Murali Krishnan, Centre opposes National Court of Appeal, matter to be referred to Constitution Bench, Bar & Bench, March 15, 2016, Available at- http://barandbench.com/centre-opposes-national-court-of-appeal-matter-to-bereferred-to-constitution-bench/

[9] Indu Bhan, Do we really need a National Court of Appeal?, The Financial Express, November 5, 2014 , available at- http://www.financialexpress.com/article/industry/do-we-really-need-a-national-court-of-appeal/5254/

[10] The High Court Judges (Salaries And Conditions Of Services) Act, 1954, Page 12, Available at
http://bombayhighcourt.nic.in/libweb/actc/1954.28.pdf

[11] Video Technologies Resource Guide, National Center for State Courts, Available at
http://www.ncsc.org/Topics/Technology/Video-Technologies/Resource-Guide.aspx

[12] supra note 8

[13] Kanu Sarda, Now, Unnecessary Court Adjournments to Attract Fine, The New Indian Express Group, 06th Mar 2016, Available at- http://www.newindianexpress.com/thesundaystandard/Now-Unnecessary-Court-Adjournmentsto-Attract-Fine/2016/03/06/article3312094.ece

[14] Ninety Fifth Report on Constitutional Division within the Supreme Court-A Proposal For, Available at
http://lawcommissionofindia.nic.in/51-100/report95.pdf

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