NATIONAL COURT OF APPEAL (NCA) Q & A

http://www.thehindu.com/news/national/national-court-of-appeal-the-hindu-explains/article8532094.ece

http://www.thehindu.com/news/national/constitution-bench-to-decide-on-national-court-of-appeal/article8357997.ece

1. What is a National Court of Appeal?

The National Court Appeal with regional benches in Chennai, Mumbai and Kolkata is meant to act as final court of justice in dealing with appeals from the decisions of the High Courts and tribunals within their region in civil, criminal, labour and revenue matters. In such a scenario, a much-relieved Supreme Court of India situated in Delhi would only hear matters of constitutional law and public law.

2. How will the NCA help ease the apex court’s burden?

The Supreme Court is saddled with civil and criminal appeals that arise out of everyday and even mundane disputes. As a result of entertaining these appeals, the Supreme Court’s real mandate — that of a Constitutional Court, the ultimate arbiter on disputes concerning any interpretation of the Constitution — is not fulfilled. By taking up the Supreme Court’s appeals jurisdiction, the NCA will give the former more time for its primal functions.

3. What is the case backlog in the Supreme Court?

The Supreme Court disposed of 47,424 cases in 2015 compared to 45,042 in 2014 and 40,189 in 2013. In spite of recently accelerated rates of case disposal, the backlog was still a staggering 59,468 cases as of February 2016.

4. What is the Supreme Court’s position on creating an NCA?

The Supreme Court itself, as early as in 1986, had recommended establishment of an NCA with regional Benches at Chennai, Mumbai and Kolkata to ease the burden of the Supreme Court and avoid hardship to litigants who have to come all the way to Delhi to fight their cases.

But subsequent Chief Justices of India were not inclined to the idea of bifurcation of judicial powers, and that of forming regional benches of the apex court. A government order in 2014 too rejected the proposal that such a court of appeal is constitutionally impermissible. The outlook changed in February 2016 when the Supreme Court admitted Chennai lawyer V. Vasanthakumar’s petition for setting up an NCA.

5. What is the government’s position on the NCA?

 

In an order dated December 3, 2014 the Centre rejected Mr. Vasanthakumar’s proposal for a National Court of Appeal with regional Benches. The Ministry cited three grounds for rejecting the idea — The Supreme Court always sits in Delhi as per the Constitution; the Chief Justices of India in the past have “consistently opposed” the idea of an NCA or regional benches to the Supreme Court; and the Attorney-General said an NCA would “completely change the constitution of the Supreme Court”.

6. What is the current status of the proposal?

The Supreme Court in March 2016 decided to form a Constitution Bench to debate the idea of an NCA. A Bench led by Chief Justice of India T.S. Thakur had said it was time to debate if the Supreme Court was too burdened to provide equal justice to all. A verdict in favour of NCA would act as a great influence on Parliament to amend the Constitution itself to make room for NCA.

The government, however, holds that the idea is a “fruitless endeavour” and will not lessen the burden of 2 crore cases pending in trial courts. On April 26, 2016, Attorney-General told the bench, “We will only be adding to lawyers’ pockets. The Supreme Court should not consider this when its own dockets are full.”

229th report of the Law Commission of India

It suggested retaining the New Delhi bench of the Supreme Court as a Constitutional Court and the establishment of Cassation Benchesof 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.

The decline of constitution benches

It is undeniable that the Supreme Court’s role as the Constitution’s sheet anchor has been weakened in recent times. This dilution, at least partly, owes to the court’s inability to devote itself substantially to the determination of important public questions.

The number of cases decided by constitution benches — benches comprising five or more judges — has steadily declined right from the Supreme Court’s inception.

1. Between 1950 and 1954, almost 15 per cent of the total cases decided by the Supreme Court were decisions of constitution benches.
2. By the time the 1970s came around, this figure had dipped below one per cent.
3. Between 2005 and 2009, benches comprising five judges or more decided only a worryingly paltry 0.12 per cent of the court’s total decisions.

These numbers tell a tale which is worrisome; the cases unique to the court are not getting heard, including issues of religious freedom, rights of minorities, the right to privacy, governance, and validity of statutes.

This has meant that in spite of the specific precepts of Article 145(3) of the Constitution — which mandates that a minimum of five judges sit for the purpose of deciding any case involving a substantial question of constitutional law — division benches of two judges have increasingly decided important disputes requiring a nuanced interpretation of the Constitution.

E.g.

1. In December 2013, it was a bench of two judges, in Suresh Kumar Koushal v. Naz Foundation, which reversed the Delhi High Court’s momentous judgment declaring Section 377 of the Indian Penal Code, insofar as it criminalised homosexuality, as unconstitutional.
2. Similarly, when last year in Shreya Singhal v. Union of India the Supreme Court struck down the pernicious Section 66A of the Information Technology Act, in the process paving the way for a refined thinking on the right to free speech, it was once again a bench of two judges that rendered the verdict.

What we have, therefore, is a quite unusual scheme of constitutionalism where any given pair of two individuals is vested with the enormous power of ruling conclusively on significant matters of public importance which should ideally be decided by Constitutional benches. This phenomenon — still relatively recent — of rulings by two-judge benches in noteworthy cases has coincided with the court’s rising backlogs. What’s clearly evident is that this manner of functioning is far from what the Constitution’s framers envisaged of the Supreme Court.

The apex court’s original mandate

Broadly, the Constitution prescribes to the Supreme Court two types of jurisdiction:

1. An Original jurisdiction — i.e. the power to entertain cases at the first instance — where fundamental rights have been violated, or where a State is involved in a dispute with another State or with the Centre
2. An Appellate jurisdiction – where a case involving a substantial question of law requires adjudication, on appeal.

The court was therefore always seen not merely as an arbiter of constitutional disputes, but also as a plenary body that would settle the law of the land.

However, by all accounts, the Constituent Assembly believed the court would exercise great discretion in choosing its own scope of work. The court was not seen as a forum to argue over ordinary disputes between litigants that had no larger public bearing. It was believed the lower judiciary and the various high courts would be sufficiently equipped to dispense justice in these kinds of cases.

That the Supreme Court has today used the pliability of its power to grant special leave to often interfere in mundane disputes is therefore not a product of any structural problem, but rather of a deliberate decision by the court’s judges. Viewed thus, it is difficult to understand how the creation of an NCA would somehow ease the burden on the Supreme Court, allowing it to eschew its authority to grant special leave; this power was, after all, always meant to be used only in exceptional cases, where a particular interpretation of a law required definite resolution.

Alternate Solution

The focus ought to be not on altering the core structure of the judiciary, but in aiming to make changes that are more pragmatic, that place an emphasis on the strengthening of the base of India’s judicial edifice.

A bottom-up approach needed

• What the NCA is meant to do, therefore, can quite easily be achieved by strengthening the lower judiciary, which generally constitutes the courts of first instance.
• Correspondingly, as was always intended, the high courts can be viewed as the regular — and, in most cases, final — appellate court. No doubt, to achieve this, it is necessary that there is greater rigour involved in choosing our judges. If socially conscious and meritorious women and men, who subscribe to the best constitutional values, are elevated as judges to our subordinate judiciary and the high courts, the idea of viewing the Supreme Court as a routine court of appeal can be renounced altogether. This would allow the Supreme Court to be more discerning in its use of discretion, thus substantially reducing its burden of acting as a corrector of simple errors.
• Moreover, at the same time, at least two constitution benches can be designated to hear cases Monday through Friday, thereby solving problems concerning the inability of the Supreme Court to devote itself to its most important duty.

Were we to tailor our solutions thus, through a bottom-up approach, the purported difficulty of access to the Supreme Court also begins to present itself as a red herring(distraction from main issue).

• That the real issues of accessing justice relate not to the Supreme Court but the lower judiciary becomes even more apparent through a study of the latest figures released by the National Judicial Data Grid (NJDG). The data show us that there is only one judge for every 73,000 people in India, a figure that is seven times worse than the United States. And even more staggeringly, at the present rate of functioning, according to the NJDG, civil cases will never get fully disposed of, and it will likely take more than 30 years to clear all the criminal cases presently on the file of India’s lower courts.

Conclusion

To think about making changes even to the basic system of dispensing justice isn’t necessarily a bad thing. But what’s clear from the NJDG data is that our judiciary isn’t broken because of any deficiencies in structure, but rather because of the feeble infrastructure that we have installed to support our justice delivery system. If we work towards establishing a more robust subordinate judiciary, it would not only negate any requirement on the part of most litigants to approach the Supreme Court, but it would also free the court of its shackles, allowing it to possibly regain its constitutionally ordained sense of majesty.