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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
Cover Story
NATIONAL COURT(S) OF APPEAL

Delineating or Detracting Apex Court’s stature?
Hemant Kumar, Consulting Editor
hemantkumar.mallb@gmail.com
Has the time come for reincarnation of our Supreme Court converting it into a purely Constitutional Court with suitably revisiting its existing purview by duly segregating its judicial appellate powers in respect of ordinary civil and criminal cases and relegating the same to a proposed National Court of Appeal with Benches ? Well, this idea is easier to be professed than to put in practice. Be what may, whatever the Apex Court adjudicates over this vexed issue but the final call over the same would remain in the hands of the ruling dispensation at the Centre which as of now seems highly unlikely if not impossible.

On April 28, a Three- Judge Bench of the Supreme Court of India comprising Chief Justice of India (CJI) TS Thakur and Justices R Banumathi and Uday Umesh Lalit reserved its order, possibly on the aspect of reference to a Constitution Bench, relating to a public interest litigation filed by a Puducherry based advocate seeking directions on the establishment of a National Court of Appeal (NCA) along with its Benches at Chennai, Kolkata and Mumbai which ought to act as the final court of justice with respect to deciding appeals from High Courts and Tribunals within their concerned regions as regards civil, criminal, labour, revenue, et al matters. It has been argued that in the event of such a scenario, the Apex Court, as also originally conceived for, would be able to focus itself and hear only cases relating to constitutional law and those of immense public importance.

This was after the Attorney-General (AG) for India, Mukul Rohatgi, as appearing for the Union of India, who has been ab initio unequivocally and vociferously opposed to even due consideration of any such idea by the Supreme Court, termed it as both non-desirable and non-feasible. In fact, the hearing of the matter has reportedly witnessed the AG being at loggerheads with the Bench (read the CJI) over the issue in question with regard to the opinion as expressed by the latter.

Pertinent that earlier this year, the Apex Court had entertained the ibid petition in which it was also averred by the petitioner that the idea for the creation of the NCA was also mooted by a Constitution Bench of the Supreme Court close to three decades ago in November 1986. ( See Box ).

It also merits due reference here that more than two and a half years back in November 2013 the advocate-petitioner had initially submitted a representation to the Central Government in this regard but when no action was taken over the same, he petitioned the Supreme Court after which a Three- Judge Bench of the Court comprising the then Chief Justice of India (CJI) HL Dattu and Justices SA Bobde and AM Sapre in October 2014 while disposing of his petition, directed the concerned respondents to consider the same in accordance with law.

Thereafter, in the month of December 2014 his representation was eventually rejected by the Department of Justice under the Union Law Ministry on the grounds that firstly the successive CJIs with whom the issue of establishing Benches of the Supreme Court was taken on several occasions in recent past have consistently opposed the move in the backdrop of Full Court of the Supreme Court itself dismissing the idea and secondly the AG also opined against it considering that the same would necessitate amendment in Article 130 of our Constitution which is impermissible since it would change the constitution of the Apex Court completely.

It has now also come to notice that after the rejection of the above said representation, the ibid lawyer had also moved the Madras High Court although he did not mention this fact in his fresh petition before the Supreme Court. The AG has also cited this aspect of non-disclosure as a ground for dismissal of his plea. Noteworthy that a then Bench of the Madras High Court comprising Chief Justice SK Kaul and Justice MM Sundresh had also dismissed his petition in March 2015.

Be that as it may, in February this year the Supreme Court while issuing notice on his petition while requesting AG to assist in the matter also appointed senior advocates KK Venugopal and Salman Khurshid as amicus curiae in the case. It is a sheer coincidence that Mr. Venugopal has been consistently vying for revisiting the present structure of the Apex Court. ( See Box )

As far as the stand of the Central Government before the Supreme Court over this issue is concerned, as also mentioned earlier, it seems to be against the very idea primarily on the ground that the same being a matter of policy, the Apex Court need not even entertain the petition. Further, since the operationalisation of this concept would require a constitutional amendment, hence it argues that the Court cannot issue a mandamus to the Government so as to do the needful and that too in the exercise of its PIL jurisdiction.

All this apart, the Centre is also of the opinion that the NCA, even if it sees light of the day, would rather end up defeating the very purpose as sought to be achieved by it. It has also been contended that creating the same would open another channel for appeal thus helping in adding to "lawyer's pockets". And last but not the least, it has been also recently asserted by the AG that setting up of such a forum might be struck down as "unconstitutional" by the Apex Court itself as and when it would be challenged before it.

Here it is also worth mentioning that the 18 th Law Commission of India (LCI) headed by Dr. Justice AR Lakshmanan also dealt with the issue in discussion in its 229 th report titled " Need for division of the Supreme Court into a Constitution Bench at Delhi and Cassation Benches in four regions at Delhi, Chennai/Hyderabad, Kolkata and Mumbai" ( See Box ) which was submitted to the then Union Law Minister, Dr. Veerappa Moily in August 2009 i.e . just over a couple of months after the then UPA-2 dispensation assumed reins of power. But as is usually the fate with LCI reports, this one too continues to gather dust.

Of course, even the successive governments at the Centre have only requested for the viewpoint of incumbent CJIs over the issue of setting up of regional Benches of the Apex Court across the country and the Full Court of the Supreme Court has by a unanimous resolution on not less than five occasions viz. in the years 1999, 2001, 2004, 2006 and 2010 strenuously rejected this idea reiterating every time that the same would affect the country's unitary character. There has been no convincing endeavour ever attempted so far by any ruling elite at the Centre.

As per the latest available official statistics with regard to the pendency in the Supreme Court of India, courtesy the data carried in "Court News", a quarterly newsletter brought out by the Apex Court itself, as on 30 th September, 2015 a total of 59,910 cases are pending of which 33,506 are admission matters and 26,404 are regular ones. It has been further mentioned in ibid publication that of these pending cases, only 16,534 are upto one year old and thus arrears (i.e. cases pending for more than a year) are 43,376. The actual official figures at the time of writing this story would indeed be higher than those quoted herein.

Of late, especially during the recent years, as all sort of litigation, for whatever reasons, has multiplied manifold and tremendously, hence amidst the same, the Apex Court of the country is also reeling under mounting arrears and severe workload which is increasing with each passing day notwithstanding the recent escalation witnessed in the disposal of cases by it. Thus a solid case is made out for at least duly considering if a possible solution can be devised so as to ensure that the Supreme Court's true character can be preserved and it does not merely transform into a 'general court of appeal' for all and sundry cases.

Here the author of this cover story would like to make a point that since Article 130 of our Constitution relating to the Seat of the Supreme Court provides that the Court shall sit in Delhi or at such other place or places, as the CJI may, with the approval of the President, from time to time, appoint, hence an idea can be seriously mulled over regarding the CJI and/or certain Judges of the Apex Court, as wisely decided by the former in formal consultation with his puisne judges, choosing to hold hearings/sittings at periodic intervals in the form of 'Circuit Benches' across various regions of the country notably at those places from where there have been persistent demands for setting up regional Benches of the Supreme Court. If this suggestion can be agreed upon, then for materializing the same, other modalities can be easily worked out. There would be no need for even enacting any Amendment in our Constitution for this initiative.

In this regard, attention of everyone is invited to over a decade old similar kind of provision made in the Consumer Protection Act, 1986 via an Amendment Act of 2002 which , inter alia , incorporated section 22C in the ibid Act relating to the constitution of Circuit Benches. By virtue of the powers conferred by the same, the Central Government in consultation with the National Consumer Disputes Redressal Commission (NCDRC) in August 2004 notified 11 places across the country other than New Delhi at which NCDRC can perform its functions. This number has gradually increased in recent years with Shimla being notified as the seventeenth place by the Government in January 2016.

Moreover, as regards the often raised issue of the Supreme Court of India being located too far from the potential litigants, especially those residing in the southernmost and north-eastern parts of the country, I wonder how and why in the present era of Information and Communication Technology (ICT), where the concept of e-judiciary is also gradually gaining momentum, suitable mechanisms cannot be devised so as to suitably redress this aspect?

Remember, that it was the Supreme Court itself which took a lead close to a decade back in October 2006 when it introduced the concept of e-filing which has since been emulated by various courts across the country. On similar lines, the 'e-Committee' of the Apex Court which has been working on 'e-courts' mission mode project', can, if it wisely desires so, mull over and evolve a system akin to the concept of video-conferencing wherein hearing of cases in the Apex Court can be got conducted with though the presence of engaged advocate-on-record in a case before the relevant Supreme Court Bench but with concerned (senior)advocates/petitioners-in-persons in ibid case being present at certain specially designed state-of-the-art technology equipped rooms/chambers preferably within the High Courts' premises from where they can argue or else put forward their arguments/points via linkage of audio-video linkage.

Finally, with the Supreme Court of India being presently seized of the issue examining the constitutional validity or otherwise of the idea relating to the setting up of the NCA with its cassation/regional Benches, it is highly hoped that the matter would be thoroughly adjudicated from all aspects and thus would get settled once and for all.

However, at this juncture, it seems too difficult to predict whether this concept would be able to clear legal hiccups, because as things stand right now, it is highly unlikely that it would receive a nod from the incumbent ruling elite.

Be that as it may, it needs to be recalled here that the 2014 national election manifesto of now-in power BJP , inter alia , commits to ensure Justice for all - justice which is prompt and accessible with a promise of adopting a multi-prolonged approach to address the high pendency of cases in our judicial system.

Hence, if the incumbent 'Modi Sarkar' is indeed serious about kick-starting the process of judicial reforms in letter and spirit, then it ought to give a serious thought, if not to the proposal of establishing the NCA, then at least to the exigent need of reducing the numerous layers of appeals as currently available to the litigants in our system of dispensation of justice. It cannot abdicate its duty by merely asserting that it is upon the Apex Court to exercise its constitutional appellate powers sparingly.

 
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