The Supreme Court’s request to the Central government to consider the possibility of establishing a >National Court of Appeal has elicited mixed reactions from the legal community. Bodies such as the Law Commission of India have given their considered opinion, and from these a solution must emerge.
The issue relates to access to justice, that is at the core of our constitutional values, and thus problems related to the issue have to be understood in their entirety and possible solutions must be deliberated upon and discussed by all stakeholders. The problem is essentially threefold.
The Supreme Court was meant to be a Constitutional Court. However, the sheer weight of its case backlog leaves the court with little time for its primal functions. In spite of recently accelerated rates of case disposal in the Supreme Court (in 2015 it disposed of 47,424 cases compared to 45,042 in 2014 and 40,189 in 2013), the backlog was still a staggering 59,468 cases as of February 2016.
A ‘substantial question’ of >constitutional law has to be heard by five or more judges. According to a study by Nick Robinson titled “A Quantitative Analysis of the Indian Supreme Court’s workload”, in the 1960s it was common for the court to decide over 100 such cases a year. He points out that in the past decade, because of the unreasonable workload borne by the court, the average is now fewer than eight constitution benches a year. In effect, therefore, the functions of the Supreme Court as a Constitutional Court have been seriously impaired.
Ease of access Geographical proximity to the court is definitely an aspect of access to justice. The fact that the Supreme Court sits only in New Delhi limits accessibility to litigants from south India. Mr. Robinson’s study reveals that of all the cases filed in the Supreme Court, the highest numbers are from high courts in the northern States: 12 per cent from Delhi, 8.9 per cent from Punjab and Haryana, 7 per cent from Uttarakhand, 4.3 per cent from Himachal Pradesh, etc. The lowest figures are from the southern high courts: Kerala 2.5 per cent, Andhra Pradesh 2.8 per cent, Karnataka 2.2 per cent and a mere 1.1 per cent from Madras High Court. There is therefore an urgent need to find a solution to such an inequitable state of affairs.
The >Supreme Court , it must be acknowledged, has played its role as sentinel qui vive of the Constitution with aplomb. This does not, naturally, go down well with the other organs of the state and while their present proclivity to abide by the orders of the Supreme Court is creditable, it is but natural that attempts may be made to curtail the constitutional powers of the court. The problem of backlog may be a convenient handle for the other organs of the state to seek drastic curtailment of the court’s powers. Well-regarded leaders in stable democracies have attempted this in the past.
Franklin D. Roosevelt saw nothing amiss in using his presidential powers to attempt to ‘reorganise’ the American Supreme Court when it consistently dealt death blows to many of the legislations brought in under the rubric of the New Deal. The pendency of cases before the Supreme Court was at that time cited as the ostensible reason for the ‘reorganisation’ plans. In pursuance of the same, Senators William H. King and Warren Austin called upon Chief Justice Charles Evans Hughes to appear as a witness in the Senate hearing and to outline the court’s ability to deal with its docket. Chief Justice Hughes refused, and instead sent a note which ultimately played an important role in thwarting the President’s plan to reorganise the court.
An institution which on a daily basis hauls up several other bodies for defects and deficiencies must place itself well above criticism of any nature. It is only such an unassailable stature that can add to its effective functioning.
A reasoned solution In considering the issues posed by the Supreme Court to it, the Central government has a rich repository of information which it must refer to in order to reach a well-reasoned decision. The 229th report of the Law Commission of India delved into this problem in depth and came up with the suggestion of retaining the New Delhi bench of the Supreme Court as a Constitutional Court and the establishment of Cassation Benches of the Supreme Court in the four regions at New Delhi, Chennai/Hyderabad, Kolkata and Mumbai. The 2009 report pointed out that since Article 130 of the Constitution provides that “the Supreme Court shall sit in Delhi or such other place or places as the Chief Justice of India may with the approval of the President, from time to time, appoint”, the creation of Cassation Benches of the Supreme Court would require no constitutional amendment. It also pointed out how this basic model with appropriate variations has worked very successfully in countries such as Italy, Egypt, Ireland, the U.S. and Denmark.
In coming to its conclusions and recommendations the report had also made extensive reference to the 95th report of the Law Commission titled “Constitutional Division within the Supreme Court — A proposal for”; the 125th Law Commission report titled “The Supreme Court — A Fresh Look”; reports of the parliamentary standing committee on personnel, public grievances, law and justice as also the 120th report of the Law Commission on “Manpower planning in judiciary”.
In addition to the above, Mr. Robinson’s report referred to earlier is also available to guide the deliberations of the government.
The Supreme Court has earlier rejected suggestions to have benches of the Supreme Court in other parts of the country. Given this fact, it is imperative we look at other options to the problem and seriously debate the possibilities. The solution may not even be the National Court of Appeal but a completely different idea which emerges during the course of deliberations and is found acceptable to the government, the Supreme Court and the stakeholders. It is, however, important that whatever may be the consensus, it must find a solution to the problems mentioned earlier.
As the saying goes, if we do not do something because it has never been done before, we will go nowhere. The law will stagnate while society advances, which is not good for both.
N.L. Rajah is a senior advocate of the Madras High Court.