Plea for Establishment of National Court of Appeal; SC issues Notice to Centre [Read Petition] [Updated]

A Supreme Court Bench headed by Chief Justice of India TS Thakur today issued notice to Centre seeking response on a plea for setting up of National Court of Appeal with regional Benches. The Court has appointed Senior Advocates K.K.Venugopal and Salman Khurshid as Amicus Curiae in this Case.

Interestingly in 2010, K.K.Venugopal in his landmark Jain Memorial Lecture on the subject “TOWARDS A HOLISTIC RESTRUCTURING OF THE SUPREME COURT OF INDIA” advocated the proposal of establishing National Court of Appeal.

He stated as follows;

“I suggest that instead of adding more judges to the Supreme Court of India, one should create four Regional or Zonal Courts of Appeal which would absorb the 140 categories of cases which are today pending in the Supreme Court of India being matrimonial, rent control, labour, service, land acquisition and other such like cases. These cases would belong to the exclusive jurisdiction of the Courts of Appeal which would be established in the four regions of the country. The Chartered High Courts themselves could well be the seats of these Courts of Appeals which would be manned by judges of the same calibre as the judges who would otherwise be elevated from the High Courts to the Supreme Court. The age of retirement of the Judges of the Court of Appeal would be 65, as logically, they would have to have a higher age of retirement. Correspondingly, the age of retirement of the Supreme Court Judges may have to be enhanced to 68 or even 70. The Supreme Court would then be left with only those cases which, as pointed out earlier, would fall within the true jurisdiction of the Apex Court of the country. The Court of Appeal would finally decide all cases arising from the High Courts relating to the 140 sub-categories mentioned earlier, without any further appeal. The Constitution would be amended by adding Article 136A, whereby the Zonal Court of Appeal would exercise the powers which were hitherto being exercised by the Supreme Court under Article 136 of the Constitution. On the other hand, the Supreme Court would thereafter entertain appeals from the High Courts by restricting the scope of Article 136 to cases involving constitutional issues, validity of Central and State laws, difference of opinion between High Courts or between Courts of Appeal and Presidential References and suits between States or States and the Centre. If, however, any question arises before a Court of Appeal, which would fall within the curtailed jurisdiction of the Supreme Court, it would refer the same to the Supreme Court of India for decision.”

In an op-ed in ‘The Hindu’, on 29th April, 2010, KKV had re-iterating his earlier views on the issue, emphasized that the creation of four regional Courts of Appeal as final appellate courts, while restricting the Supreme Court of India to its true function as a Constitutional Court, has become imperative.

He wrote

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

1. 
   

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

   
   
2. 
   

   Settling differences of opinion on important issues of law between High Courts or between Courts of Appeal;

   
   
3. 
   

   Validity of laws, Central and State;

   
   
4. 
   

   After theKesavananda Bharati case, (1973) 4 SCC 217, the judicial review of Constitutional Amendments;

   
   
5. 
   

   Resolving conflicts between States and the Centre or between two States, as well as the original jurisdiction to dispose of suits in this regard; and

   
   
6. 
   

   Presidential References under Article 143 of the Constitution”.

   
   

On 19th March 2010 a two Judge Bench of Supreme Court (Justices M.Katju and RM Lodha) took cognizance of KKV's lecture and stated as follows;

“We are of the opinion that two additional categories of cases can be added to the above list, namely

(i) where the Court is satisfied that there has been a grave miscarriage of justice and

(ii) where a fundamental right of a person has prima facie been violated. However, it is for the Constitution Bench to which we are referring this matter to decide what are the kinds of cases in which discretion under Article 136 should be exercised.

In our opinion, the time has now come when an authoritative decision by a Constitution Bench should lay down some broad guidelines as to when the discretion under Article 136 of the Constitution should be exercised, i.e., in what kind of cases a petition under Article 136 should be entertained. If special leave petitions are entertained against all and sundry kinds of orders passed by any court or tribunal, then this Court after some time will collapse under its own burden”.

But a Five Judge Constitution Bench of the Supreme Court refused to revisit the scope of Article 136 of the Constitution of India or lay down guidelines regulating the power. The bench, comprising Justice Anil Dave, Justice Kurian Joseph, Justice A.K. Goel, Justice Rohinton Nariman and Justice S.K. Singh observed that the issue had already been settled in various decisions of the Apex Court and that “no effort should be made to restrict the power of the Supreme Court under Article 136”.

According to the Petition, “In the case of Bihar legal Society, the Constitution bench had observed that the Supreme Court was never intended to be a regular court of appeal against orders made by the High Court or the session’s court or the magistrates. It was created as an apex court for the purpose of laying down the law for the entire country and extraordinary jurisdiction for 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. The Law Commission of India headed by Shri. M.C. Setalvad, the then Attorney General of India, in its 14th report suggested that “although the exercise of the jurisdiction under Article 136 of the Constitution by the Supreme Court in criminal matters, sometimes serves to prevent injustice, yet the Court might be more chary of granting special leave in such matters as the practice of granting special leave freely has a tendency to affect the prestige of the High Courts.” The Law Commission of India under the Chairmanship of Justice K.K. Mathew, in its 95th report recommended that the Supreme Court of India should consist of two Divisions, namely; (a) Constitutional Division, and (b) Legal Division. Again in the 125th report, apart from vouching the recommendations made in the earlier report viz., 95th report, the Law Commission after taking in to consideration that the Supreme Court sits in Delhi alone, made a recommendation that a Federal Court of Appeal be established with Benches in places of North, South, East, West and Central part of India for the convenience of the people 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 Supreme Court. The petitioner is an advocate practising in the High Court of Madras. Being a student of Constitutional Law, he was undertaking a practise of comparison of the Constitutions of various countries with India, during which he came across the judgments and reports concerning the needs for establishment of a National Court of Appeal with regional Benches. Highlighting the practicalities and hardships, the petitioner submitted that establishment of a “National Court of Appeal” as suggested in the case of Bihar Legal Support Society would rectify the inequality state of affairs inasmuch as the said National Court of Appeal would have benches in all possible regions of the country. This would considerably reduce the cost of litigation and would enable the litigants to have the services of the Lawyer who appeared for them before the High Court’.

Read the petition and Order here.

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