The apex court’s decision to hear a plea for the establishment of NCA with benches in Kolkata, Chennai and Mumbai is promising and could bring down the pendency of its cases
Only rarely does the Supreme Court get an opportunity to hear cases involving reforms within itself. One such opportunity unfolded on February 26, when an ordinary litigant from Puducherry, V Vasanthakumar, approached it with a plea to establish a National Court of Appeal (NCA) with benches in other cities, to bring down the pendency in the Supreme Court. A three-judge bench comprising the Chief Justice of India, TS Thakur, and justices R Banumathi and UU Lalit decided to hear the petition by issuing notices to the central government.
Vasanthakumar’s plea is meant to let the Supreme Court focus its energies and time on cases involving interpretation of the constitution. This is of far more significance to the governance of the country than appeals from lower courts which currently take up the bulk of its time.
There has been a phenomenal increase in the sanctioned strength of the Supreme Court — from just eight judges in 1950 to its current size of 31 judges and 15 court rooms. Of these 15 courts, three have been mostly shut for the past two months. This is due to six vacancies caused by retiring judges and the inability of the apex court’s collegium to fill them in time after last year’s confrontation between the government and the judiciary over the National Judicial Appointments Commission.
The size of the Supreme Court has kept on expanding to keep pace with the mounting docket of arrears. According to the latest Court News, an official quarterly newsletter published by the Court, at the end of September 30, 2015, there were 33,506 admission matters, and 26,404 regular matters which were pending. Thus, of the total 59,910 pending cases, 48,717 were civil and 11,193, criminal. The data further reveals that if connected matters are excluded, the pendency was 36,414 matters as on September 30, 2015.
As the above data makes it clear, admission matters comprise the bulk of the backlog. On Mondays and Fridays, the Court mostly hears fresh admission matters under the category of miscellaneous cases. Two Supreme Court judges hear each of these admission matters to determine whether the case deserves to be heard again at a longer, regular hearing where it is decided on merits.
According to one estimate, about 19 percent of admission matters go on for a regular hearing. And it takes, on an average, about four to five years for the Court to deliver a final verdict in a case. Most are appeals against the verdicts of lower courts or tribunals under Article 136 of the constitution. This Article, incidentally, grants the Supreme Court special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. Although one-fifth of the admission matters are ultimately heard and decided, the court spends an enormous amount of time in eliminating 80 percent of them after giving them a preliminary hearing.
If the Court has not used its extraordinary powers under Article 136 as frequently as it does, it would not have led to a huge backlog of cases. This necessitated successive chief justices of India to recommend an increase in the number of judges in the apex court from time to time. But as long as the Court continued to use Article 136 liberally, increasing the number of judges made no substantial difference to the pendency of cases.
ACCESS TO JUSTICE
More importantly, another study found that appeals come disproportionately from Delhi and the wealthier states, raising questions of fairness in access to justice. Thus, in 2011, 12 percent of Delhi High Court decisions as compared to just 1.1 percent of Madras High Court verdicts were appealed in the Supreme Court.
On February 26, the court came close to seizing an opportunity to address this issue in all seriousness. In the normal course, the petition filed by V Vasanthakumar, a practicing advocate from Puducherry, would not have merited the Court’s attention. This is not the first time Vasanthakumar has sought the Court’s intervention through a PIL, as in 2014 also his plea was the same: establish a National Court of Appeal (NCA) with benches all over India. This, he claims, would considerably reduce the cost of litigation and enable litigants to have the services of the lawyer who appeared for them before the high court. Vasanthakumar submitted that the NCA would be in a position to entertain appeals by Special Leave from the decisions of high courts and tribunals.
In 2014, he sought the Court’s indulgence in directing the central government to consider his representation dated November 21, 2013, seeking the establishment of NCA. On October 10, 2014, the Court obliged him and gave the central government six months to consider it. “In this petition, issue of positive nature has been raised. We are issuing notices to respondents (center, legislative department and justice department) seeking early consideration on representation made on November 21, 2013,” a bench of then chief justice P Sathasivam and Justice Ranjan Gogoi had then said.
On December 3, 2014, the government wrote to Vasanthakumar that it was not possible to establish NCA because successive CJIs had been consistently opposed to the setting up a bench of the Supreme Court outside Delhi. The attorney-general (A-G) of India, who was consulted by the government in the matter, was of the view that the establishment of the NCA, by amending Article 130, was impermissible, as this would change the constitution of the Supreme Court completely. According to Article 130, the Supreme Court shall sit in Delhi or in such place or places as the chief justice of India may, with the approval of the President, from time to time appoint.
In his latest petition on February 26, Vasanthakumar challenged the central government’s reasons for rejecting his representation as ex facie illegal, arbitrary, unreasonable, and violative of Article 14 of the constitution. He further submitted that the government’s failure to take into account relevant considerations constituted an error.
The merit of Vasanthakumar’s fresh petition lies in the fact that it cites the Supreme Court judgment in the case of Bihar Legal Support Society vs the Chief Justice of India, which was delivered in 1986 in support of its pleas. The constitution bench of the Supreme Court, in this case, had held as follows: “We think it would be desirable to set up a National Court of Appeal which would be in a position to entertain appeals by Special Leave from the decisions of the high courts and the tribunals in the country in civil, criminal, revenue and labour cases and so far as the present (Supreme Court) is concerned, it should concern itself only with entertaining cases, involving questions of Constitutional law and public law”.
Vasanthakumar submitted that the central government had misunderstood his plea for establishing NCA, in terms of the above judgment, and confused it with the setting up of benches of the Supreme Court in other parts of the country. He also challenged the A-G’s opinion to the government as erroneous, as it failed to take into account the Supreme Court’s judgment in the Bihar Legal Support Society case.
Vasanthakumar also gave a glimpse of the prevailing approach of constitutional courts in other jurisdictions. He quoted Justice Robert H Jackson of the US Supreme Court, who said: “The only way found practicable and acceptable in USA, for keeping the volume of cases within the capacity of a court of last resort, is to allow the intermediate courts of appeal finally to settle all cases that are of consequence only to parties. This would pave way to the court of last resort, to concentrate only questions on which lower courts are in conflict or those of general importance to the law.”
According to Vasanthakumar, the Supreme Court of the US and of the UK, besides the High Court of Australia, had been keeping their dockets clear by rigorous control on admission of cases by judges. He also suggested that the Supreme Court of Canada was statutorily empowered to choose and decide only those cases which it regards as constitutional matters of national importance or involving important issues of law. He has also cited similar experiments in Germany and South Africa.
Vasanthakumar also cited Justice MC Chagla, former chief justice of Bombay High Court, as having said: “Courts exist for the convenience of the litigants and not in order to maintain any particular system of law or any particular system of administration.”
He said that while taking up matters on appeal by way of SLP (special leave petition) or approaching the Supreme Court straightaway under Article 32, people from different parts of the country have to travel for nearly four days, stay in Delhi for a long time for briefing the advocate on record and senior counsels and also attend the hearings, in their own interest by spending huge amounts.
“There are cases where, due to fear of high cost, many of the cases are left unchallenged. Further, the fees chargeable by the senior advocates on daily basis are beyond the reach of the normal litigants,” he observed in his writ petition.
The Supreme Court’s three-judge bench’s decision to hear his petition is interesting because it was on January 11 that a five-judge constitution bench had, in another case, decided that it is better to use the powers of Article 136 with circumspection, rather to limit it forever.
(This article features in India Legal March 31 issue)