A Case For The National Courts Of Appeal

The Supreme Court disposed 34,653 cases in 2019 January-October period. The lion's share of this number is appeals, among them; sizeable chunk is Special Leave Petitions under Article 136 of the Constitution. For example, the State of Kerala has approximately 4000 dockets pending before the Supreme Court and ¾ of them are SLPs as on 30^th March 2020. As per 2015 data, just 7 per cent of the judgments passed by the Supreme Court in the previous year dealt substantially with Constitutional matters. Legal researcher Mr. Nick Robinson, pointed out the growing proportion of routine appeals in the apex court's workload as against core Constitutional matters. Mr. Robinson in his analysis of 50 years of Supreme Court data, had found that the number of matters decided by Constitution Benches was falling steadily. In the second half of the 2000s, Constitution benches heard an average of 6.4 matters per year, the lowest ever level.

It should be compared with the fact that the Supreme Court of the USA (SCOTUS) and the United Kingdom Supreme Court (the UKSC) apex judicial bodies in their respective realms, dispose less than 100 cases per year. The 2019 Year-End Report on the Federal Judiciary, published by the SCOTUS, states that "During the 2018 Term, 73 cases were argued and 69 were disposed of in 66 signed opinions" by the SCOTUS. The Supreme Court Annual Report 2018–2019 of the UKSC says that it heard only 91 appeals between 1 April 2018 and 31 March 2019 and delivered only 64 judgments.

The Supreme Court of India has gained a vast and undefined jurisdiction. As per the Handbook on Practice and Procedure and Office Procedure (2017), published by the Supreme Court, the Court entertains around 45 categories of cases. By framing the Basic Structure Doctrine and the Collegium System, the Supreme Court assumed unprecedented powers in the Constitutional amendment and the judicial appointment. The increased jurisdiction has resulted in delayed justice.

Mr. K.K.Venugopal, the present Attorney General of India, in a lecture delivered in 2010 titled Towards a Holistic Restructuring of the Supreme Court of India had opined that the founding fathers of the Constitution envisaged the Jurisdiction of the Supreme Court as limited to (i) All matters involving substantial questions of law relating to the interpretation of the Constitution of India or of national or public importance; ii) Validity of laws, Central and State; iii) After Kesavananda Bharati, (1973) the judicial review of Constitutional Amendments; iv) Resolving conflicts between States and the Centre as well as the original jurisdiction to dispose of suits in this regard; v) To settle differences of opinion of important issues of law between High Courts; vi) Additionally, Presidential References and Article 131of the Constitution.

He is of the view that the Appellate Jurisdiction and Writ Jurisdiction should be detached from the Supreme Court. Mr. Venugopal opined that the National Courts of Appeal should be set up, by appropriate constitutional amendments, to finally dispose the appeals from the High Courts under Articles 132,133 and 134, the Special Leave Petitions under Article 136 and Statutory Appeals. He suggested that the National Courts of Appeal should be located in the four regional zones of the country and they should be placed in between the Supreme Court and the High Courts in the hierarchy of the courts.

Mr. Venugopal suggested that four Regional or Zonal Courts of Appeal should be set up to 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. 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.

In a 1982 article, Justice K.K. Mathew had contemplated Courts of Appeal to relieve the huge backlog of cases pending in the Supreme Court of India. Later, Justice Bhagwati in the Bihar Legal Support Authority v. Chief Justice of India and Anr. (1986) observed that "The Supreme Court of India was never intended to be a regular court of appeal against orders made by the High Court or the Sessions court or the magistrates." Article 136 envisaged only a corrective jurisdiction that is extra-ordinary and limited in its nature. But this aspect has widely been ignored in practice.

The Law Commission of India in its 229th Report (2009) had recommended the division of the Supreme Court into a Constitution Bench at Delhi and Cassation Benches in four regions at Delhi, Chennai/Hyderabad, Kolkata and Mumbai. Article 130 of the constitution provides that the Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint. Hence, the Supreme Court may also ponder over the proposal of setting up of regional benches of the apex court to ensure accessible and speedy justice.

A study by Mr Nick Robinson had exposed the regional disparity in the Supreme Court case-dockets. The States geographically adjacent to the seat of the Supreme Court, like Punjab, Haryana and Uttarakhand have a share of 6.2% each in the total dockets pending before the Supreme Court. Meanwhile the far away but vast states like Tamil Nadu and Karnataka have only 1.1% and 2.4% of the cases respectively. It demonstrates the difficulty of the people from South India and North East to access the Supreme Court. Justice turns costly and unaffordable for them.

In 2016 a PIL was filed by Mr V. Vasantha Kumar praying for the setting up of the National Courts of Appeals at New Delhi, Kolkata, Mumbai and Chennai. Then the Chief Justice referred the matter for a Constitution Bench. The amici curiae in the case, Mr K.K. Venugopal and Mr. T.R. Andhyarujina vehemently supported the idea of the National Court of Appeal. The Congress, in its manifesto for the 2019 Lok Sabha elections had proposed the setting up of a National Court of Appeals as an intermediary court between the Supreme Court and the High Courts in India to hear routine appeals in civil and criminal matters from the High Courts.

The setting up of the National Courts of Appeal will make justice more accessible, speedy and affordable for the commoner. Furthermore, it would relieve the Supreme Court from the role of a 'Jack of all trades' and restore its pristine glory as a true constitutional and federal court.

Views are personal.

(Faisal C.K is an Under Secretary in the Law Department, Government of Kerala)