#dnaEdit: Appeal to reason

There is some merit to the demand for setting up of a National Court of Appeal with regional benches in major cities, in the context of the huge pendency of appeal cases before the Supreme Court (SC). But with the central government rejecting this idea, which has cropped up in the form of a PIL, it is incumbent upon the Centre and the SC to work together in a focussed manner so that the apex court’s troubles are resolved. In 1986, a constitutional bench helmed by then Chief Justice of India (CJI) PN Bhagwati had proposed a National Court of Appeal (NCA) to entertain appeals on special leave against the decisions of high courts and tribunals, so that it would allow the SC to focus on cases involving interpretation of constitutional and public law. At Independence, there were eight judges in the SC, but even after the apex court’s strength has risen to 31, the workload of judges has only continued to grow. 

The latest development is not without its share of irony. In the past, it was the central government that proposed the setting up of a separate NCA and regional benches of the SC to improve access for poor litigants and expedite cases. However, successive chief justices opposed the idea on grounds that it would bifurcate judicial authority and powers. It is also possible that after the Centre’s attempts in the 1970s to ensure a “committed judiciary”, chief justices were worried about the growth of alternate centres of power. In a change of heart, the present CJI TS Thakur appears to be in favour of the NCA. However, the Centre has now pointed out that an NCA is unfeasible in the constitutional scheme as it would alter the SC’s structure and composition. Attorney General Mukul Rohatgi has argued that the Constitution envisages the SC as the final court of appeal and that the litigant’s right to approach the SC was a basic right.

Ultimately, the onus is on the government and Parliament to amend the Constitution and create an NCA. It is also important to analyse why the Supreme Court has been reduced to a regular court of appeal before scouting for alternatives. The Constitution provided adequate safeguards against this eventuality by requiring high courts to certify appeals on stringent grounds to ensure that primarily, only matters involving substantial questions of law regarding interpretation of the Constitution, reached the SC. So Rohatgi’s contention that SC is the final court of appeal does not apply to all cases. However, Article 136 of the Constitution also allows the SC discretion in special cases to all appeals against any judgment, decree, or order. Over time, this discretion has been relaxed to the point that well-heeled litigants, of whom there is no paucity, frivolously approach the SC for interim relief before the final orders of lower courts.

The Supreme Court has a pendency of 55,000 cases with an additional 80,000 cases reaching the SC every year. Important constitutional and human rights matters like privacy law, LGBT rights, euthanasia, and river-water sharing have been pending for long. Increasing the number of high court and SC judges has reached a point where there is significant divergence from established jurisprudence and precedents and sowed confusion and corruption. A-G Rohatgi has suggested that the SC judges should exercise self-restraint and resist the temptation to correct even small errors committed in lower court orders. This is also an implicit admission of the quality of judges at the lower levels and the flaws in the judicial appointments process. The Centre’s contention that the NCA would violate the basic structure of the Constitution is unfounded. The Supreme Court exists for the citizens and consensus among the political class and the top judiciary is all that is needed to amend the Constitution and create the NCA.