Case for appeal courts

The Supreme Court’s decision to hear a PIL petition seeking the establishment of a National Court of Appeal outside Delhi creates ripples in legal circles as the court shows its willingness to entertain an idea to which it was indifferent.

A judge listening to litigants at a mega Lok Adalat held at the District Court Complex in Mangaluru in April 2014.

WHEN the Supreme Court bench comprising the Chief Justice of India (CJI) Justice T.S. Thakur and Justices R. Banumathi and U.U. Lalit decided on February 26 to hear a public interest litigation (PIL) petition seeking the court’s directions to the Centre to establish a National Court of Appeal (NCA) outside Delhi, it took legal circles by surprise. The surprise was mainly because the court had found an opportunity to initiate a debate on the subject by entertaining a petition filed by a well-informed litigant from Chennai, V. Vasanthakumar, although it had remained lukewarm to the idea when it was expressed from time to time by the bench and the Bar.

But soon realisation dawned on the practical difficulties in realising the idea, even if the bench appeared sympathetic to it initially.

Vasanthakumar filed a similar petition in October 2014 requesting the court to direct the Central government to consider his representation on the setting up of the NCA, which he had submitted in 2013. The court had given the Centre six months to consider Vasanthakumar’s representation, as it found that his petition had raised an issue that was of a positive nature.

But in its reply to Vasanthakumar, the Centre confused the plea to set up NCAs in the four regions of the country with the opposition of the successive CJIs to the proposal to set up a bench of the Supreme Court outside Delhi. The Centre failed to understand the distinction between an NCA and a Supreme Court bench.

Article 130 of the Constitution, which refers to the seat of the Supreme Court, says that the Supreme Court shall sit in Delhi or in such other place or places, as the CJI may, with the approval of the President, from time to time deem fit. It is true that successive CJIs have opposed the idea of setting up Supreme Court benches outside Delhi on the grounds that it would affect the prestige and integrity of the apex court. But the proposal to set up NCAs has nothing to do with the setting up of benches of the Supreme Court outside Delhi.

In his fresh petition, Vasanthakumar challenged the government’s reply as erroneous and arbitrary. Vasanthakumar is not the first petitioner to propose the setting up of an NCA as a solution to the mounting docket crisis facing the Supreme Court and to address the problem of access to justice being aggravated by the geographical distance of Delhi for litigants living in other regions, and the time it takes to seek justice at the Supreme Court.

As K.K. Venugopal, amicus curiae appointed by the Supreme Court in this case, points out in his submissions to the Supreme Court, the former judge of the Supreme Court, late Justice K.K. Mathew had, in an article published in 1982, contemplated Courts of Appeal to relieve the huge backlog of cases in the Supreme Court.

Justice P.N. Bhagwati, in Bihar Legal Support Authority vs Chief Justice of India [(1986) 4 SCC 767], said:

“The Supreme Court of India was never intended to be a regular court of appeal against orders made by the High Court or the sessions court of the magistrates. It was created for the purpose of laying down the law for the entire country and the extraordinary jurisdiction of granting special leave was conferred upon it under Article 136 of the Constitution so that it could interfere whenever it found that the law was not correctly enunciated by the lower courts or tribunals and it was necessary to pronounce the correct law on the subject.”

More to the point, the Constitution bench in that case declared: “We think that it would be desirable to set up an NCA which should be in a position to entertain appeals by special leave from the decisions of the High Courts and tribunals in the country in civil, criminal, revenue and labour cases and so far as the present apex court is concerned, it should concern itself only with entertaining cases involving questions of constitutional law and public law.”

The Law Commission of India, in its 229th Report (2009), recommended the setting up of a Cour de Cassation in each of the four regions to have these Courts of Appeal as final courts with regard to the matters entrusted to them.

Venugopal also cites the research paper published by Nick Robinson, a Yale Law School Research Fellow, that 10 per cent of the cases filed in the Supreme Court emanate from Delhi, 6.2 per cent from Punjab and Haryana, and 6.2 per cent from Uttarakhand, with only 1.1 per cent and 2.4 per cent from large States like Tamil Nadu and Karnataka. According to Venugopal, this implies that the distance of the Supreme Court from the southern States would, in fact, be an impediment to access the apex court in Delhi.

According to information provided by the Supreme Court on its website, as on September 30, 2015, the number of pending cases stood at 59, 910. Of these, even if one excludes connected matters as suggested by the court itself, the result would be 36,414.

The number of Constitution bench matters, which have been pending for many years, was 29. Although this number is minuscule, the early disposal of these matters would have resulted in filling the grey areas in law, which could lead to early and expeditious disposal of several pending cases as well. When the present CJI, T.S. Thakur, set up three Constitution benches of five judges each after taking over office in December last year, members of the Bar felt relieved that the court had finally woken up to the need to give priority to Constitution bench matters and that as a result they could expect authoritative court rulings on key issues.

According to Venugopal, merely augmenting the number of judges in the Supreme Court will not solve the problem of pendency of cases. Even if the apex court attempts to adjudicate all the pending cases, it will necessarily accumulate vast arrears over a period of time and the court is bound to fail in hearing and disposing of cases within a reasonable time frame. This is likely to erode the confidence of litigants in the effectiveness of the court in delivering justice.

Venugopal, therefore, suggests the creation of four regional or zonal Courts of Appeal, which would absorb the 140 categories of cases relating to matrimony, rent control, labour, service, and land acquisition, among others, entertained by the Supreme Court. These cases would belong to the exclusive jurisdiction of the Courts of Appeal.

The Supreme Court would then be left with only those cases that would fall within the jurisdiction vested in it by the framers of the Constitution and covering essentially the following matters:

I) All matters involving substantial questions of law relating to the interpretation of the Constitution or of national or public importance;

II) Validity of laws, Central and State;

III) The judicial review of constitutional amendments;

IV) Resolving conflicts between States and the Centre as well as the original jurisdiction to dispose of suits in this regard;

V) To settle differences of opinion on important issues of law between High Courts; and

VI) Presidential references under Article 143 of the Constitution.

Thus, Venugopal has proposed that the Constitution be amended by adding Article 136A, whereby the NCAs would exercise the powers, which were hitherto being exercised by the Supreme Court under Article 136 of the Constitution. Article 136 (1) enables the Supreme Court to use its discretion to grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter made by any court or tribunal in the territory of India.

The Attorney General, Mukul Rohatgi, however, opposed the plea for setting up the NCAs, as in his view, it would further delay the process of justice delivery by adding one more layer of appeal between the High Courts and the Supreme Court.

When pointed out that the decisions of the NCAs would have finality over matters that are exclusively under their domain, the Attorney General modified his concerns by asking what would happen to the constitutional guarantee to every citizen under Article 32 to move the Supreme Court through appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution, dealing with Fundamental Rights. Rohatgi has also opposed the reference of the case to the five-judge Constitution bench, as suggested by the CJI, claiming it would be a waste of the court’s precious time.

Despite the Centre’s opposition to the idea, the Supreme Court’s three-judge bench has reserved its decision on whether to refer the case to a larger bench to debate the issue by hearing all the stakeholders.