AG wants Law Commission to decide on NCA; Amicus Venugopal, Andhyarrujina root for SC Constitution Bench

A three judge bench headed by Chief Justice T S Thakur today reserved its verdict on referring to a constitution bench the issue of setting up National Courts of Appeal in cities like Kolkata, Mumbai and Chennai to hear appeals from high courts, after amicus curiaes K K Venugopal and T R Andhyarujina strongly supported the idea while Attorney General Mukul Rohatgi continued to oppose it even terming it a “self-defeating exercise”.

Rohatgi however agreed for a debate and lengthy hearing but argued that the appropriate forum “will not” be a constitution bench of the Supreme Court “but the Law Commission”.

Rohatgi even argued that instead of setting up NCAs, what was required was strengthening of High Courts to ensure that minimum appeals land in SC, the apex court itself adopting restrain in admitting appeals, use of latest technology by the apex court and imposing heavy costs on those filing frivolous petitions and wasting the court’s time

WHAT THEY ARGUED TODAY:

AMICUS CURIAE K K VENUGOPAL

• So much time is wasted by Supreme Court in hearing bail matter, matrimonial matters and petty cases while it can focus on constitutional matters. Reforms are required. Government has to apply its mind. Access to justice is a fundamental right. The said right stand denied to litigants, due to the unduly long delay in the disposal of cases in the Supreme Court.
• Mere increase in the number of judges in the Supreme Court will not be an answer to the problem of undue delay in disposal of cases and to what extent would such increase be feasible. The division of the Supreme Court into a Constitutional wing and an appellate wing may be an answer to the problem
• SC situated far north renders travel from southern states and some other states in India, unduly long and expensive and it is a deterrent to access of justice

• In support of his contention, read out the 125hLaw Commission of India which said, "the Supreme Court sits in Delhi alone. Government of India on couple of occasions sought the opinion of the Supreme Court of India for setting up a bench in the South. This proposal did not find favour with the Supreme Court. The result is that those coming from distant places like Tamil Nadu in the South, Gujarat in the West and Assam and other states in the East have to spend huge amount on travel to reach the Supreme Court. And an adjournment becomes prohibitive."

• He said “the 229th report said that a bench be set up each in the northern region, the southern region, the eastern region and the western region to deal with all appellate work arising out of orders/ judgments of the state high courts”.

AMICUS CURIAE T R ANDHYARRUJINA

• It is undoubtedly a great idea. There should be a debate taken up by a constitution bench.People in far flung East South and West will feel comfortable.
• Supreme Court has not turned into one hearing only appeals from High Courts. All kinds of cases landing up..anticipatory bail matters, bail, matrimonial matters which can be avoided and looked into by the respective regional National Courts of Appeal.
• Look at the US 81 cases are heard by the supreme court in a whole year. So there should be be an NCAs which will have a power of finality in decision making.
• Supreme court should hear only constitutional matters.

ATTORNEY GENERAL MUKUL ROHATGI

• Our view is that it is neither feasible nor desirable to curtail litigant’s right to move supreme court in 80 % cases. It is against the constitution . Then article 136 of the constitution will have to be amended.
• Of course reforms are required. This court has become a regular court of appeal. This court need to take steps to control the inflow of cases. US Supreme Court hears cases involving only involving federal constitution. If you form the National Court of Appeal everyone will say some question of constitutional importance is there and almost all matters will end up and the other 20 percentage cases will anyways end up in Supreme Court.
• All that will happen is another tier in the hierarchy. It will be self defeating exercise. What is required is ensure reduction in filing of appeals by strengthening the high courts, use of technology, several self corrective steps, imposing heavy cost on those who file frivolous petitions and waste the court’s time, selective in admitting appeals. SC shall intervene in only cases involving substantial questions of law.

CENTRE’S AFFIDAVIT

• “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”
• "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”.

THE BACKGROUND

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.