Interview: K.K. Venugopal

‘NCA not in conflict with basic structure’

Print edition : May 27, 2016

K.K. Venugopal. Photo: R.V. Moorthy

Interview with K.K. Venugopal, Senior Advocate in the Supreme Court.

KOTTAYAM KATANKOT VENUGOPAL is an eminent advocate practising in the Supreme Court of India. His father, the late M.K. Nambiar, was the counsel for A.K. Gopalan, who challenged the Preventive Detention Act, the first constitutional law case of great significance in independent India. Enrolled as an advocate in January 1954, Venugopal was designated Senior Advocate by the Supreme Court in March 1972. Recipient of the Padma Bhushan (2002) and Padma Vibhushan (2015) awards, 84-year-old Venugopal is respected for his legal acumen and outstanding contribution to the practice of law. Venugopal made significant submissions before the Supreme Court as amicus curiae in the just-concluded hearing on the public interest petition filed by V. Vasanthakumar, an advocate practising in Chennai, seeking establishment of National Courts of Appeal (NCAs) in four metros. In the face of stiff resistance from the Centre through Attorney General, Mukul Rohatgi, a three-judge bench headed by Chief Justice of India T.S. Thakur reserved its decision whether to refer the petition to a Constitution Bench for a detailed hearing of the stakeholders and an authoritative ruling.

In this interview to Frontline, Venugopal outlines his views on the issues facing the Indian judiciary and the difference the proposed NCAs can make to improve its functioning. Excerpts:

Can the Supreme Court entertain this petition because the Centre has claimed that establishing NCAs is a matter of policy and that according to the doctrine of separation of powers the judiciary ought not to interfere in matters of policy.

Access to justice has been held by the Supreme Court of India to be a fundamental right under Article 21 of the Constitution, which guarantees the right to liberty. If, therefore, the Supreme Court is entertaining the petition, it is for the purpose of enforcement of fundamental rights. This is not in the nature of the usual PIL where you are asking the Supreme Court to create law or lay down guidelines and so on.

The necessity for intervention by the Supreme Court is because a case, civil or criminal, takes an average of five to 10 years in the trial court, about seven to eight years in the High Court, and about five years in the Supreme Court. This means that the original litigant sometimes may not even be alive to seek the fruits of the litigation by the time the case is finally disposed of by the Supreme Court. It is only his legal representatives who will be carrying on the litigation. Therefore, I believe, that the Supreme Court will entertain the case and refer it to a larger bench of, say, five judges, that is, Constitution bench, to decide this issue which is of great consequence to the justice delivery system.

It is a matter of policy. If a policy entrenches fundamental rights, the matter also shifts to the arena of the superior courts’ jurisdiction. The court is not going to, by itself, legislate. But it will play an important part in reforming laws by expressing its views after an elaborate debate where the Union of India also is a party and by hearing all other stakeholders. Therefore, in the absence of the executive or Parliament showing any concern whatsoever for the sake of litigants because they, as a class, do not form a vote bank, the only manner of activating the other two branches of government, that is the executive and the legislature, is by the Supreme Court debating on it, but leaving it to the government, in its good sense, to implement it or not.

The NCA, it is clear, will require a constitutional amendment to be brought into existence. Can the Supreme Court issue a mandamus to bring about a constitutional amendment using the PIL jurisdiction?

Just take the period of the Emergency. There were wholesale amendments to provisions relating to the judiciary for the purpose of cutting down judicial intervention in regard to the validity of laws. To craft or structure suitable amendments would be the easiest of exercises on the part of the legislative branch of the government.

The only question which you have to ask is whether this will conflict with the theory of the basic structure of the Constitution. In my opinion, it will not. Once you understand the real structure of the Courts of Appeal, it will be a fallacy to proceed under the basis that it will duplicate the exercise of hearing cases by creating an additional court as a second tier between the High Court and the Supreme Court.

On the other hand, the Supreme Court, which is today dealing with cases which no other Supreme Court or apex court of any other common law country would touch, is really doing a great disservice to its status as a constitutional court. It is entertaining cases relating to matrimonial disputes, custody of children, maintenance, landlord and tenant, rent control, bail applications and land acquisition. In other words, every case decided by the trial court, which goes to the High Court and is then brought to the Supreme Court is seriously dealt with to find out whether there is an error of fact, whether the High Court judgment requires correction. This should not be the area of consideration in the Supreme Court.

The U.S. Supreme Court restricts its consideration of cases to a maximum of 120 a year. It does not hesitate to reject the 121st case. But they also say that we will consider this question when it comes up again in some other case.

Unfortunately, the Supreme Court of India appears as if it has a very large heart, which really, according to me, it should not have. It should be amply professional in its approach and should not be a court which seeks to wipe away every tear from every eye. What it does not realise is that every single case which it takes on file will result in a case which has been pending for years being delayed further. And if it goes on taking all these sorts of cases, which represent 80 per cent of the docket, the result is that the old cases will go on getting delayed further. According to me, this is a self-inflicted injury by the Supreme Court.

If the NCA comes into existence, will litigants be prevented from seeking another remedy in the Supreme Court if they are dissatisfied with the NCA’s verdict?

The entire suggestion which has been made in setting up the Courts of Appeal is that the workload of the Supreme Court will now be restricted to matters of constitutional or national importance, differences of opinion between High Courts, death sentence cases, and the special powers conferred on the Supreme Court in regard to suits between the Centre and the States, and so on. This should represent 15 to 30 per cent of the total workload today. That will be the exclusive jurisdiction of the Supreme Court. The Courts of Appeal will not be able to touch or deal with any one of these cases.

The rest of the classes of cases, including bail, land acquisition, matrimonial, etc., will stand transferred bodily to the Courts of Appeal. That will mean the exclusive jurisdiction of Courts of Appeal against which no further appeal will lie.

And the reason is twofold. One, we cannot afford to let all decisions rest finally with the High Court because they, off and on, or sometimes, deliver decisions which are aberrations and perverse judgments, and therefore this will require judges sitting in appeal who are selected in the same manner as judges of the Supreme Court. This would mean that the Courts of Appeal will be manned by judges who are elevated from High Courts by the collegium, applying the same yardstick, the same guidelines, which they use for elevating High Court judges to the Supreme Court.

So, qualitatively, they will be the handpicked judges known for their integrity, judicial acumen, experience and wide knowledge. Four courts of appeal, manned by 15 judges each, in each one of the four regions, namely, southern, northern, western and eastern, would take justice closer to the litigants. Today, we find people from the south not approaching the Supreme Court with the same number of cases with which persons from States close to Delhi come to the Supreme Court. The distance, not being able to access the lawyers quickly, not knowing whether their cases are coming up, not being able to travel long distances, cases are posted suddenly to the next day, all these problems will also get solved.

More importantly, you will have 15 or 20 judges manning the Supreme Court, who will be able to spend sufficient time for each case by patiently listening to the lawyers, not being overwhelmed by the 70 cases which currently get listed for the day. You will find a totally different Supreme Court, where the judges will have leisure to read the textbooks, the jurisprudence available from different parts of the Commonwealth countries, so that knowledge and quality of justice will increase. According to me, there will be only 2,500 cases filed every year instead of 60,000 cases which are filed every year now. The Supreme Court will be able to dispose of 2,500 cases in one year instead of seven to eight years.

Will the constitutional guarantee to every citizen to approach the Supreme Court directly under Article 32 remain if the NCA comes into being?

If you are creating courts of the same quality of judges as the Supreme Court, there is no reason why Article 32 power also should not stand transferred to the Courts of Appeal. But that is a matter of policy. However, if a substantial question of interpretation of law or the Constitution arises, it can be done only by the Supreme Court.

Article 136, with the new restraint which will be applied by the Supreme Court, will continue. But Article 136 A will be there, where the wide discretionary powers which are exercised by the Supreme Court today can be exercised by the Courts of Appeal. If that be so, 80 per cent of the cases now dealt by the Supreme Court will be considered by the Courts of Appeal under Article 136 A. These are easy amendments. The structure can easily be changed. And I do not think that the basic structure will be affected because you are enhancing the efficacy of the judicial system. You are bringing into existence a Supreme Court which can spend more time listening to constitutional issues and at the same time an equally competent Court of Appeal to try other cases.

The Attorney General has alleged that the Madras High Court has dismissed a similar petition earlier and that the petitioner before the Supreme Court (V. Vasanthakumar) has concealed this fact in order to agitate the issue afresh.

That was on the question of maintainability. Whether it was mentioned by Vasanthakumar in his petition, I don’t think that is the real issue in this case. The real issue, which the AG abruptly rejected, is something which would enhance the quality of justice. If a case is disposed of in one year, instead of eight years, if the litigant is able to approach the alternative court of equal competence by travelling less distance, I don’t think anybody can say the basic structure is violated. Basic structure, if at all, will be enhanced.

The Constitution itself provides for the creation of Supreme Court benches in other parts of the country. Can this be an alternative to the NCA?

What difference it will make if 70,000 cases are pending and if you divide the 31 judges of the Supreme Court and send some of them to different benches. Of course, the access to those in the regions where such benches are set up will be easier, but the total disposal of cases will be the same. It won’t make any difference. And you will be diluting the prestige and status of the Supreme Court if you set up benches in different parts of the country. That will not subserve the real purpose of bringing down the huge pendency of cases.

Do you think the proposal for video conferencing can be an answer to the problem of geographical distances between the litigant and the Supreme Court?

If there are 60,000 cases in the Supreme Court, four million cases in High Courts, 40 million cases in subordinate courts, how can this be an answer? We can’t compare ourselves with other countries. Canada’s Supreme Court tried video conferencing with regard to cases where the party is in Vancouver or far away; all that can only be cosmetic as far as India is concerned.

How do you respond to the Chief Justice’s emotional outburst at the recent conference of Chief Justices?

It only shows how serious the issue is. If you recommend 400 judges for elevation to High Courts, and 40 per cent of them are rejected or there is no response from the government, what can the Supreme Court do? Because the litigant public, they do not represent a vote bank. The government is indifferent to the suffering of the litigant public because they cannot revolt or go on strike. And, therefore, there is no pressure on them [the government]. There are 80 vacancies in Allahabad, 94 in Bombay, 60 in Delhi and 34 in Madras. How can anyone close their eyes to this? You are playing with the lives of citizens. Obviously, judges’ strength has to be increased. If you get good judges, it will make a tremendous amount of difference. Our legal education has to be strengthened. There are 17 national law schools. They produce excellent lawyers who can compete in the rest of the world. It is a slow process. I think the government must be more cooperative, not negative in its efforts.