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Keeping Justice Above the Red Tape

Krishna Koundinya Mothukuru

The Indian Judiciary is a single integrated Judiciary and inherits the common law system as a colonial heritage along with few practices from ancient and medieval times. Since Independence, the Supreme Court of India has been a driving force behind the evolution of Indian Jurisprudence setting a healthy precedence. The Constitution has given it a wide scope of jurisdiction, making it more powerful than the Supreme Court of the United States. The Appellate Jurisdiction granted to it under articles 132 to 134 makes it the final arbiter in civil and criminal cases and this, over a period of time led to massive pending cases and the idea of a National Court of Appeal was mooted.

This National Court of Appeal will have regional benches in Mumbai, Kolkata and Chennai. It will take over the role of final arbiter listening to cases from High Courts & Tribunals in civil, criminal, revenue and labour disputes. The Law Commission of India in its 229th report (2009) has dealt with the problem of pending cases in depth and recommended the establishment of Cassation benches of Supreme Court in Kolkata, Mumbai, Chennai and Hyderabad. Moreover, this process is simpler due to the fact that it does not require any amendment to the Constitution.

The Need for National Court of Appeal

The issue of pending cases is serious and it needs immediate attention of the legislators. The Supreme Court is supposed to be a constitutional court but the sheer volume of appeals has prevented it from fulfilling its original mandate.The Supreme Court was established in 1950 when the population was 36 crore. Today, that figure crossed 120 crore. Moreover, new areas of litigation like Intellectual Property, Environment, Taxation, and Corporate Law, etc., have cropped up which the founding fathers of the constitution did not envisage.

The current strength of Supreme Court is 25 (though 31 are sanctioned). The backlog of cases in the Supreme Court in February 2016 stands at 59,486 out of 3 crore cases in the entire Judiciary as estimated by the Former Chief Justice H. L. Dattu. In addition, the Indian Judiciary is notorious for its cumbersome judicial processes. Justice Stewart of Royal Courts of Justice, UK ruled that a victim of 2008 Mumbai attacks could sue Taj Group of Hotels in London Courts on the grounds that it would take twenty years in his opinion for adjudication.

Government’s objections

Recently, a Public Interest Litigation by a Chennai based lawyer V. Vasanthakumar to set up the National Court of Appeal (NCA) has brought the issue into limelight. A bench led by the Chief Justice of India, T.S. Thakur, issued a notice to the Central Government. The Law Ministry is not in favour of setting up the NCA and cited three premises for the same.

  • The Supreme Court of India ‘always’ sits in Delhi as per the Constitution.
  • Former Chief Justices of India have ‘consistently opposed’ the idea of National Court of Appeal or regional benches of the Supreme Court.
  • National Court of Appeal would ‘completely change the constitution of the Supreme Court’.

Countering each objection

The Constitution itself under the Article 130 says that, “The Supreme Court shall sit in Delhi or in such other places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.” The Constitution explicitly says that the Supreme Court is not just limited to Delhi and may be seated in other places as well. Hence, the geographical limitation on the Supreme Court as stated by the Centre is invalid.

The first objection is simpler to deal with. It is a surprise that the Centre would quote such a weak objection. The Constitution itself under the Article 130 says that, “The Supreme Court shall sit in Delhi or in such other places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.” The Constitution explicitly says that the Supreme Court is not just limited to Delhi and may be seated in other places as well. Hence, the geographical limitation on the Supreme Court as stated by the Centre is invalid.

The second objection, that former Chief Justices have ‘consistently opposed’ the idea of National Court of Appeal or regional benches of Supreme Court is true to a certain extent and a stronger defence. When the Supreme Court admitted the wild card PIL on NCA, it was a ‘U’ turn of sorts. However, the very same Supreme Court in 1986 recommended the establishment of National Court of Appeal. Given the urgency of the situation, establishment does hold its merits.

The third objection, that National Court of Appeal would ‘completely change the Constitution of the Supreme Court’ is partly vague and partly invalid. Does the Centre think that National Court of Appeal would diminish the status of Supreme Court? Or perhaps it goes against the spirit of the Constitution as envisaged by our founding fathers? It is unclear. It is partly invalid due to the reason that National Court of Appeal is not a wing or divisional bench of the Supreme Court but a separate judicial body altogether. Moreover, it can be argued that this ‘change in Constitution’ of Supreme Court would actually help it to perform its original mandate and function at a higher efficiency.

The case for NCA is strong. Even US, England, Wales have such bodies. The Supreme Court of United States has only 9 judges and decides only 81 cases per year while the average disposal of a judge of the Supreme Court of India is 2600 cases per year. The Supreme Court of UK consists of 12 judges and heard only 80 cases in 2013-14 since most appeal cases are directed to Court of Appeal. It is high time the burden on the Supreme Court is lessened, the nation owes that much to the apex court and a National Court of Appeal is the best way to do it.


Krishna Koundinya Mothukuru is an entrepreneur and writes on Foreign Policy, Economics and Law.