While the Supreme Court should become a Constitutional Court, the setting up of Courts of Appeal, each comprising 15 judges divided into five benches, for the four regions ofthe country will prove to be a real boon to litigants.
Things had come to a pass in the Supreme Court of India, when Justice E.S. Venkataramiah in P.N. Kumar v. Municipal Corporation of Delhi, (1987) 4 SCC 609 relegated the writ petitioner under Article 32 to the High Court, without deciding whether any fundamental rights were violated or not, giving, among others, the following reason: “This Court has no time today even to dispose of cases which have to be decided by it alone and by no other authority. A large number of cases are pending from 10 to 15 years. Even if no new case is filed in this Court hereafter, with the present strength of Judges it may take more than 15 years to dispose of all the pending cases.”
There was a huge hue and cry at the Bar, which alleged that the Judge was violating his oath of office in refusing to entertain petitions under Article 32, which itself was a sacrosanct fundamental right.
I should point out that the idea of having Courts of Appeal in India for relieving the Supreme Court of its huge burden is not new. Justice K.K. Mathew, whom I have cited earlier, had, in an article published in 1982 contemplated Courts of Appeal to relieve the huge backlog of cases in the Supreme Court.
Later, Justice P.N. Bhagwati, in Bihar Legal Support Authority v. Chief Justice of India and Anr., (1986) 4 SCC 767 had this to say: “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 of the magistrates. It was created for the purpose of laying down the law for the entire country and the extraordinary jurisdiction of 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 Constitution Bench had itself felt the need to set up a National Court of Appeal and observed in the very same judgment thus: “We think that it would be desirable to set up a National Court of Appeal which should be in a position to entertain appeals by special leave from the decisions of the high courts and 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.”
It would therefore be seen that the idea of establishing Courts of Appeal to relieve the Supreme Court of its tremendous burden has been propounded quite some time back. As a matter of fact, the Law Commission of India in its 229th Report (2009) recommended the setting up of a Cour de Cassation in each of the four regions to act as a final court with regard to the matters entrusted to it. Recently, the Chief Justice of India, Justice K.G. Balakrishnan, expressed a similar view by suggesting that there could be Courts of Appeal in the different regions.
Statistically, it appears from a paper published by Nick Robinson, a Yale Law School Research Fellow, that 10 per cent of the cases filed in the Supreme Court emanate from Delhi, 6.2 per cent from Punjab and Haryana, and 6.2 per cent from Uttarakhand, with only 1.1 per cent and 2.4 per cent coming from large States like Tamil Nadu and Karnataka. This would imply that the distance of the Supreme Court from the southern States would, in fact, be an impediment to access to the Supreme Court in Delhi.
If Courts of Appeal were to be established in each region in the precincts or the vicinity of the High Courts of Bombay, Calcutta, Delhi and Madras, litigants in these and neighbouring States would be able to access these Courts of Appeal at far less expense than if they were to travel all the way to the Supreme Court. The proximity of the Courts of Appeal would be a real boon to the common man.
I would contemplate the Courts of Appeal as having 15 judges each. Judges would sit in divisions of three. This would mean that five benches would function at all times, with the total number of judges in all four courts together being 60. Therefore, instead of increasing the strength of the Supreme Court, one would, on the other hand, have established convenient and accessible courts in each region.
Were the proposal for four regional Courts of Appeal to be accepted, I would anticipate that the Supreme Court would be left with only 1,000 to 2,000 cases involving core constitutional and other issues of national importance. In such circumstances, I do not think the court would need more than 20 judges sitting in Benches of five dealing with both admissions and the final hearing of cases. Judges would then have the leisure to study briefs long before coming to court. The practice of the United States Supreme Court to obtain written briefs in advance from counsel would result in judges, who are thorough with the briefs, restricting counsel to the main issues in the case. Cases would be disposed of far more expeditiously than they are today. I have no doubt that a newly transformed Supreme Court dealing only with constitutional cases and cases of far-reaching national importance would thereafter be able to dispose of the cases filed during a year, in the year of filing itself.
Today the Supreme Court disposes of about 50,000 cases a year but falls short of the filings that year by about 3,000 to 4,000 cases. The U.S. Supreme Court with nine judges sitting en banc is able to dispose of only 80 to 100 cases a year. The erstwhile Judicial Committee of the House of Lords was able to dispose of only about 180 cases a year. In the case of the Supreme Court of India, I am certain that it will easily be able to deal with 1,000 to 2,000 cases a year without lawyers or clients feeling that they have not been given a full and complete hearing.
I believe that the time for complacency is long past. If one has to beg for a hearing date even after three or four years have elapsed after the filing of a case, and still cannot get a date within a month or two, it means the system has failed. No other viable solution has been found so far and it does not appear that expanding the Bench by five judges to 31 would miraculously make the arrears of 50,000 cases disappear. It is time to take bold decisions, and if we hesitate any more without finding a solution, we would have failed the nation and the litigant public.
I am encouraged by the fact that a significant change may soon be in the offing. Quoting extensively from the recent R.K. Jain Memorial Lecture delivered by me, in which I proposed the creation of regional Courts of Appeal, a Bench of the Supreme Court of India (comprising Justice Markandey Katju and Justice R.M. Lodha) has referred to a five-judge Constitution Bench the question whether guidelines should be issued for exercise by the Supreme Court of its appellate jurisdiction under Article 136 of the Constitution. Although the setting up of regional Courts of Appeal along the lines I have suggested will require a constitutional amendment, the Constitution Bench reference possibly marks a first, important step in transforming one of the most pivotal institutions in our polity today.
(K.K. Venugopal is a distinguished Senior Advocate, Supreme Court of India. This is the second and concluding part of his article. The full text of his R.K. Jain Memorial Lecture, to which reference was made by the Supreme Court, is accessible at beta.thehindu.com)