Justice N. Kirubakaran of the Madras High Court, in a judgment delivered just before his retirement last month, suggested amendment of the Constitution for establishment of regional benches of Hon'ble Supreme Court. "No impression should be given that the Hon'ble Supreme Court is meant only for the people living in and around New Delhi or the States surrounding New Delhi. India is a very vast continent from Jammu and Kashmir in the North to Tamil Nadu in the South and Gujarat in the West to Manipur in the East." the judge said.
The idea of establishment of regional benches of the Supreme Court is not new. It can be traced to the discussions that took place in the Constituent Assembly about the amendment moved by Dr. Ambedkar.
The Draft Article 108A moved by Ambedkar read as follows: The Supreme Court shall sit in Delhi or at such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint. A member Jaspat Roy Kapoor suggested that, for the words 'shall sit in Delhi or at such other place or places' the words 'shall sit at Delhi and/ or such other place or places' has to be substituted. According to him, Dr. Ambedkar's amendment can be interpreted to mean that so long as the Supreme Court sits in Delhi, it will not have the right or the privilege to hold a circuit court anywhere else in the country. He said that it should be open for the Chief Justice of the Supreme Court to arrange for the holding of the sittings of the court either at Delhi or at some other place or places or both at Delhi and at other place or places.
To this, T. T. Krishnamachari responded that the amendment moved by Ambedkar does not preclude the possibility of the Supreme Court sitting at Delhi and at some other place. Pandit Thakur Das Bhargava supported Kapoor's amendment and said that as long as Delhi is the Capital, the proper place for a Supreme Court is at Delhi. HV Kamath said that the mention of Delhi was unnecessary. Responding to this discussion, Dr. Ambedkar said: A court must have a defined place where it shall sit and the litigants must know where to go and whom to approach. Consequently, it is necessary to state in the statute itself as to where to court should sit and that is why the word Delhi is necessary and is introduced for that purpose. The other words which occur in article 108-A are introduced because it is not yet defined whether the capital of India shall continue to be Delhi. If you do not have the words which follow, "or at such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint" then, what will happen is this. Supposing the capital of India was changed, we would have to amend the Constitution in order to allow the Supreme Court to sit at such other place which Parliament may decide as the capital.
Then Kapoor sought a clarification whether it is open to the Supreme Court so long as it is sitting in Delhi, to have a circuit court anywhere else in this country simultaneously?
Yes, certainly. A circuit court is only a Bench, Dr. Ambedkar said. The discussion concluded when Kapoor withdrew his amendment. Dr. Ambedkar's amendment was adopted.
In 1986, the Supreme Court, in a judgment (Bihar Legal Support Society vs. Chief Justice of India), observed that it was 'desirable to set up a National Court of Appeal which would be in a position to entertain appeals by special leave from the decisions of the High Courts and the Tribunals in the country in civil, criminal, revenue and labour cases and so far as the present apex court is concerned, it should concern itself only with entertaining cases, involving questions of constitutional law and public law. '
In the year 1988, the Law Commission of India in its 125th report had said: "The Supreme Court sits in Delhi alone. The Government of India on a 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 amounts on travel to reach the Supreme Court. And an adjournment becomes prohibitive."
Two years ago, the Vice President Venkaiah Naidu had also spoken in favour of this idea. Last year, speaking at the Constitution Day function organised by the Supreme Court, Attorney General K. K. Venugopal suggested creating four benches Of Court Of Appeal with 15 Judges each sitting across the country. The former Union Law Minister Ravi Shankar Prasad, in response to a query in Parliament, had stated that the idea of a separate Bench of the Supreme Court outside Delhi has not found favour with the Supreme Court of India. Recently, Rajya Sabha Member and senior lawyer P Wilson had moved a Private Member Bill termed as the Constitution (Amendment) Bill, 2020 that seeks to establish 4 Permanent Regional Benches of the Supreme Court.
In fact, a Puducherry-based advocate V. Vasantha Kumar, had filed a Public Interest Litigation for establishing a National Court of Appeal (NCA) with regional benches in major cities- Kolkata, Mumbai and Chennai- to hear appeals against orders of high courts. A three Judge Bench later referred the following 11 Questions to Constitution Bench:
- With access to justice being 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?
- Would the fact that the Supreme Court of India is situate in the far North, in Delhi, rendering travel from the Southern states and some other states in India, unduly long and expensive, be a deterrent to real access to justice?
- Would the Supreme Court sitting in benches in different parts of India be an answer to the last mentioned problem?
- Has the Supreme Court of India been exercising jurisdiction as an ordinary court of appeal on facts and law, in regard to routine cases of every description?
- Is the huge pendency of cases in the Supreme Court, caused by the Court not restricting its consideration, as in the case of the Apex Courts of other countries, to Constitutional issues, questions of national importance, differences of opinion between different High Courts, death sentence cases and matters entrusted to the Supreme Court by express provisions of the Constitution?
- Is there a need for having Courts of Appeal, with exclusive jurisdiction to hear and finally decide the vast proportion of the routine cases, as well as Article 32 petitions now being decided by the Supreme Court of India, especially when a considerable proportion of the four million cases pending before the High Court may require review by a higher intermediate court, as these judgments of the High Courts may fail to satisfy the standards of justice and competence expected from a superior court?
- If four regional Courts of Appeal are established, in the Northern, Southern, Eastern and Western regions of the Country, each manned by, say, fifteen judges, elevated or appointed to each Court by the Collegium, would this not satisfy the requirement of 'access to justice' to all litigants from every part of the country?
- As any such proposal would need an amendment to the Constitution, would the theory of 'basic structure' of the Constitution be violated, if in fact, such division of exclusive jurisdiction between the Supreme Court and the Courts of Appeal, enhances the efficacy of the justice delivery system without affecting the independence of the judicial wing of the State?
- In view of cases pending in the Supreme Court of India on average for about 5 years, in the High Courts again for about 8 years, and anywhere between 5-10 years in the Trial Courts on the average, would it not be part of the responsibility and duty of the Supreme Court of India to examine through a Constitution Bench, the issue of divesting the Supreme Court of about 80% of the pendency of cases of a routine nature, to recommend to Government, its opinion on the proposal for establishing four Courts of Appeal, so that the Supreme Court with about 2500 cases a year instead of about 60000, may regain its true status as a Constitutional Court?
If we look closely, these suggestions about having a national court of appeal, and regional bench of the Supreme Court are mooted to address two basic issues viz. pendency of cases, and access of litigants to justice.
As per the latest 'statistics' released by the Supreme Court, there are 69,956 matters pending before it. Most of these matters are appeals filed against the judgments and orders of various High Courts and Tribunals. Among this 446 are Constitution Bench matters. One nine judge bench matter is pending since 2002.
Original Jurisdiction and Advisory Jurisdiction
Article 32 of the Constitution confers original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. The Supreme Court has power to direct transfer of any civil or criminal case from one State High Court to another State High Court or from a Court subordinate to that of another State High Court. The Supreme Court, if satisfied that cases involving the same or substantially the same questions of law are pending before it and one or more High Courts or before two or more High Courts and that such questions are substantial questions of general importance, can withdraw a case or cases pending before the High Court or High Courts and dispose of all such cases itself. Under the Arbitration and Conciliation Act, 1996, International Commercial Arbitration can also be initiated in the Supreme Court. Its original jurisdiction also extends to any dispute between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between two or more States, if and insofar as the dispute involves any question (whether of law or of fact) on which the existence or extent of a legal right depends. The Supreme Court also has advisory jurisdiction in matters which may specifically be referred to it by the President of India under Article 143 of the Constitution
Appellate Jurisdiction Of Supreme Court
As per Article 132, appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution. Article 132 and 133 defines the appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil and criminal matters. Appeal under Article 132 in civil matters are maintainable only if the case involves a substantial question of law of general importance and in the opinion of the High Court the said question needs to be decided by the Supreme Court. Direct criminal appeal to Supreme Court will lie only in two situations i.e. if the High Court— (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or (b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death. In all other cases, the appeal is only maintainable if the High Court certifies that the case is a fit one for appeal to the Supreme Court. Some statutes relating to Tribunals also allow direct appeals to the Supreme Court.
Court Of Appeal
But, under Article 136, the Supreme Court can, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. This is an extra ordinary power granted to the Supreme Court. In view of this provision, the Supreme Court can grant special leave to appeal, not only against orders and judgments of High Courts/Tribunals, but that of any court or tribunal in the Country. Majority of cases that get filed and remain pending in the Supreme Court belong to this category, and that makes it mostly a 'court of appeals'.
The Indian Constitution does not have the concept of National Court of Appeals. In 2017, there were reports that the Centre and the Supreme Court are reportedly deliberating on establishment of Courts of Appeal, which will be placed higher than District Courts, but below High Courts, to hear appeals from District Courts in all civil and criminal cases will be heard by these Courts of Appeal.
However, to establish them, a Constitutional amendment will be required. The idea of National Court of Appeals, is to de-link the appellate jurisdiction from the original jurisdiction of the Supreme Court. This will help in reducing case pendency before the Supreme Court.
We have Kenyan Constitution of 2010 as an example. The Court of Appeal of Kenya is established under Article 164 of the constitution of Kenya to handle appeals arising from High Court as well as any other court or Tribunal as provided for in Law. The court comprises a maximum of 30 Judges. The Judges of the Court of Appeal elect a President from among themselves. The Court of Appeal holds sitting in six places: Nairobi, Mombasa, Nyeri, Kisumu, Nakuru and Eldoret.
The Supreme Court of Kenya, which holds sittings in its building at Nairobi, has exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President. It can also hear appeals from the Court of Appeal if it involves interpretation or application of the Constitution. A matter certified by the Supreme Court or the Court of Appeal as one that involves a matter of general public importance is also appealable before it. It can also render advisory opinion at the request of the National Government, any State organ, or any County Government, determine the validity of a declaration of a state of emergency, and hear appeals from a tribunal constituted for removal of Judges from office.
South Africa also has a similar judicial structure. It also has a 'Supreme Court of Appeal' to deal only with cases sent to it from the High Courts. The Constitutional Court is South Africa's highest court on constitutional matters. In Uganda, its Supreme Court hears appeal from its Court of Appeals and Constitutional Court.
Access To Justice
The Constitution Bench of the Supreme Court, in a judgment delivered in 2016, held that access to Justice is a Fundamental Right guaranteed to citizens by Article 14 and Article 21 of the Constitution of India. Four main facets, the Court said, constitute the essence of access to justice:
i) The State must provide an effective adjudicatory mechanism;
ii) The mechanism so provided must be reasonably accessible in terms of distance;
iii) The process of adjudication must be speedy; and
iv) The litigant's access to the adjudicatory process must be affordable.
Elaborating point (ii), the Court said that the forum/mechanism so provided must be reasonably accessible in terms of distance for access to justice since so much depends upon the ability of the litigant to place his/her grievance effectively before the court/tribunal/court/competent authority to grant such a relief. "Access to justice will again be no more than an illusion if the adjudicatory mechanism provided is so expensive as to deter a disputant from taking resort to the same. Article 39-A of the Constitution promotes a laudable objective of providing legal aid to needy litigants and obliges the State to make access to justice affordable for the less fortunate sections of the society.", the Court had observed.
When we read Article 32, it says that a Citizen has the fundamental right to move the Supreme Court by appropriate proceedings for the enforcement of his/her fundamental right. Supreme Court is the 'forum' provided by the Constitution for a citizen to challenge any act of the State, which includes Governments at all levels, which violates his/her fundamental right.
Is the Supreme Court reasonably accessible in terms of distance and affordability ?
The Supreme Court, located at Delhi, is not accessible for citizens from many parts of the Country and for many, it is not affordable as well. Due to these obstacles, many good and important matters do not reach the Highest Court.
Though in the context of 'Tribunals', Justice Hemant Gupta, a judge of the Supreme Court, in his dissenting opinion in Madras Bar Association case, highlighted the concern of lawyers and litigants about concentration of Tribunals in Delhi. The judge observed that shifting the principal benches of the certain Tribunals outside Delhi will help the Bar to grow at different places and would also resolve the challenge of scarcity of housing in the Capital. He added that it is expensive for the litigants to engage professional services in Delhi, which is out of capacity for a large section of the society.
What the judge said about Tribunals is also, in my humble opinion, applicable to the Supreme Court also. If we have regional benches of the Supreme Court outside Delhi, it will help the Bar to grow in different parts of the Country. The issue of distance and affordability will also be addressed by establishing regional benches. This would not need any amendment since the Constitution itself empowers the Supreme Court to sit in 'such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint'.
We can only hope that the Constitution Bench of the Supreme Court, which is considering these issues, will uphold Citizen's fundamental right to access 'Supreme Court' and that the Centre, without hesitation, will amend the Constitution to establish 'National Court Of Appeal'.
(Author is a lawyer practicing in High court of Kerala ; Views are personal)