AG asks SC to dismiss National Courts of Appeal PIL but CJI proposes debate

Repeatedly asking the Supreme Court to dismiss the PIL for setting up National Courts of Appeal, the Modi government today said it will only “add to lawyers pockets” and will not in any way help reduce pendency nor serve any other purpose which will benefit the judiciary.

But a three judge bench headed by Chief Justice T S Thakur insisted that a debate be held on it and asked Attorney General Mukul Rohatgi who appeared for the Centre and parties to first sit together and “discuss among themselves, identify broad parameters on which debate can happen.

“We are not going to amend the constitution we can do something within its parameters. Look into the propositions submitted by amicus curiae K K Venugopal and you may also add to it whatever you want”, CJI Thakur told Rohatgi. The court fixed the matter for detailed hearing on Thursday at 10:30 AM

Earlier Rohatgi told the court : “The PIL ought to be dismissed solely on the ground that the petitioner did not disclose the fact that he had already filed a petition before the Madras High Court which stood dismissed on March 5, 2015 while in this PIL he has made a categorical statement that he has not filed any other PIL on the issue”

“Another reason is that it is not going to serve any purpose other than adding to the pocket of lawyers. The focus should be on 2.2 crore pending in the lower courts. Supreme Court only has 50,000 odd cases”, AG said.

CJI Thakur then asked the AG: “Don’t you want a debate also?’ to which Rohatgi said he had no problem in it.

CENTRE's AFFIDAVIT

Meanwhile an affidavit filed by the Centre said “National Court of Appeal cannot be seen from an isolated perspective of reducing the backlog of cases. Adding one more level of adjudication will not help in decreasing litigation but would rather add to it and would be a boon only for the advocates”

It added: "the matter ought not to be treated as a PIL since no public interest is involved in the matter. Similarly, the matter ought not to be referred to a constitution bench as it would amount to wastage of judicial time"

“In fact article 136 itself is an extraordinary power which is to be exercised by this honourable court in exceptional circumstances and not in a routine manner. Earlier judgments of the Supreme Court has also observed that the power conferred on Article 136 of the constitution of India is discretionary in nature and should not be invoked in a routine fashion, but in a very exceptional circumstances as and when a question of law of general public importance arises or a decision sought to be impugned before this honourable court shocks the conscience”, it said.

On April 13 the process initiated by the Supreme Court to deliberate on setting up National Courts of Appeal in cities like Kolkata, Mumbai and Chennai to hear appeals from high courts took one step forward with the Chief justice-led bench asking Attorney General Mukul Rohatgi to respond to eleven propositions submitted by amicus curiae K K Venugopal on the directions of the court

“With access to justice having been declared to be a fundamental right, would the said right stand denied to litigants, due to the unduly long delay in the disposal of cases in the Supreme Court?

Would the mere increase in the number of judges be an answer to the problem of undue delay in disposal of cases and to what extent would such increase be feasible?

Would the division of the Supreme Court into a Constitutional wing and an appellate wing be an answer to the problem? These are the three main questions framed by Venugopal

On March 16 also the Modi government had vehemently opposed any move to establish a National Courts of Appeal

“It will require amendment to the Constitution. I don’t think it is possible or desirable. The proposition that Supreme Court should have benches in different places has already been rejected. Now they are asking for something between High Courts and the Supreme Court. Instead of it what is required is strengthening of the High Courts and the Supreme Court observing restraint in admitting cases” Rohtagi had said.

It is to be noted that the Law Ministry had recently echoed the same view. “The apex court has already rejected similar proposals four times —in 2001, 2004, 2006 and 2010. "A full court (a meeting of all 31 judges) of the Supreme Court had rejected the demand saying it would affect the country's unitary character. Our view is also the same”, a law ministry source had said.

According to sources, law ministry team headed by the AG studied the matter last week and is of the opinion that the National Court of Appeal (NCA) will dilute Article 136 of the Constitution, weaken the power of the SC and delay finality of judgments as it would not stop litigants approaching the SC.

Besides creating confusion, this will have disastrous consequences and will delay delivery of justice, the attorney general is believed to have said. Instead, the government will pitch for strengthening the high courts so that very few cases reach the apex court. It can be filtered at the high court level which can in certain cases be the final point of judicature.

CJI FAVOURS NCA

CJI Thakur said SC will decide if to take the highest level of justice closer to the doorsteps of the litigants.

Puducherry-based advocate V. Vasantha Kumar, the petitioner in the PIL demanding the NCA had submitted that "distance of the apex court in National Capital from other parts of the country, coupled with high travel expense and cost of litigation were coming in way of citizens from far flung areas to approach the top court of the land, which is otherwise also burdened with large scale pendency of cases."

Kumar moved the apex court after the Centre did not consider his representation for setting up NCA which was suggested by the apex court in a 1986 judgment.