THE DIRE NEED FOR A NATIONAL COURT OF APPEAL

[Ameya Dadhich]

It is undeniable that the Indian Parliament, in the past several sessions, has shown to be increasingly productive. From commercial and financial laws to laws relating to national security, from laws that affect religious beliefs to laws pertaining to the country’s demography, the present establishment has taken every step to challenge the status quo. Consequently, the opposition in the parliament and the opposition in the masses have vigorously challenged the constitutionality of the new enactments before the Hon’ble Supreme Court of India. Resultantly, the Apex Court has had a strenuous few years now. Suffice to say that the fact that the Apex Court’s hands are perennially full does not help curb the high pendency in India’s judiciary.

For perspective, in a case like AMRIT AGRO INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., GHAZIABAD 2007 (3) TMI 14 - SUPREME COURT, the Supreme Court had dealt with the question whether roasted peanut is a namkeen and is comparable to bhujia? Without undermining this question, which could be integral to players of the peanut/bhujia industry, the very Court has also dealt with the questions of national importance, such as the right to privacy judgment in JUSTICE K.S. PUTTASWAMY (RETD) & ANR. VERSUS UNION OF INDIA & ORS. 2018 (4) TMI 98 - SUPREME COURT, judgment on homosexuality in NAVTEJ SINGH JOHAR & ORS. VERSUS UNION OF INDIA THR. SECRETARY MINISTRY OF LAW AND JUSTICE 2018 (9) TMI 1794 - SUPREME COURT, and others. It is integral to point that both these questions, whether it be classification of masala peanut or whether someone could be imprisoned for being a homosexual in India, are being judged in the very corridors of the Honourable Supreme Court on Tilak Marg in New Delhi. To the extent that the distribution of cases by the Chief Justice of India caused the infamous tension amongst India’s senior most judges themselves.

The answer to this issue could lie in a new constitutional body, that may be called the ‘National Court of Appeal’ (“NCA”). An apex body to deal with appeals, even special petitions, arising out of decisions by the High Courts and other lower judiciary and quasi-judiciary bodies. Reason being that the highest court of the land, as it stands now, may be left to only deal with issues in relation of constitutional and public law. In other words, to deal with issues of national importance that affects every citizen of the country.

In BIHAR LEGAL SUPPORT SOCIETY NEW DELHI VERSUS CHIEF JUSTICE OF INDIA 1986 (11) TMI 392 - SUPREME COURT, a five-judge constitutional bench of the Supreme Court 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 coun- try in civil, criminal, revenue and labour cases and so far as the present apex court is concerned, it should concern itself only with entertaining cases, involv- ing questions of constitutional law and public law. But until any such policy decision is endorsed by the Govern- ment, the apex court must interfere only in the limited class of cases where there is a substantial question of law involved which needs to be finally laid at rest by the apex court for the entire country or where there is grave, bla- tent and atrocious miscarriage of justice. Sometimes, we Judges feel that when a case comes before us and we find that injustice has been done, how can we shut our eyes to it. But the answer to this anguished query is that the Judges of the apex court may not shut their eyes to injus- tice but they must equally not keep their eyes too wide open, otherwise the apex court would not be able to perform the high and noble role which it was intended to perform according to the faith of the Constitution makers.” Thus, the esteemed judges categorically held that if the eyes of the Apex Court are constantly open to everything, then that might cause hinderance to its actual role as intended by the constituent assembly. The judgment in said case was authored by the very popular and respected CJI PN Bhagwati, however, did not find favour with other erstwhile benches of the Court and was dumped after all.

In 2014, the then CJI H.L. Dattu has once again raised the issue of NCA and had recommended the centre to decide the positive and significant results of an NCA, in tune with the law commission’s report. However, obviously the matter once again never saw the light of day. The fundamental idea behind an NCA is to reduce pendency in India and therefore, a bench in every region (north-south-east-west) shall be the most sensible way forward. However, with four additional “apex courts” in the country, it is obvious why the executive, or even the current Apex Court, will not favour such a move. As evident from the case of ‘National Tax Tribunal Act, 2005’, where a constitutional-bench of the Supreme Court, headed by the then CJI RM Lodha, declared that a national tribunal to finally decide tax-related cases will take away the jurisdiction of High Courts in such matters. Therefore, evidently, the higher courts will not want their powers to be reduced in any sense.

Ideally, the NCA would deal with majority of appeals from high courts, however, if there are areas of law that are particularly unsettled and need clarification, the NCA, in consultation with the Supreme Court, can club them together and send them forward to the Supreme Court. Not only can a number of individual cases be disposed of, but areas of law can also be settled and a clear precedent set, while the Supreme Court keeps it concentration set on more pressing matter and matters of national importance.

There may be apprehensions regarding appointment of judges of the NCA. While obviously such judges must have credentials better than high court judges and less than supreme court judges, their experience in judiciary shall have a major role to play in such appointment. In any case, the current capacity of judges in the Supreme Court, i.e. 35, is proving to be not enough. While my short article will surely fail in resolving every intricate complication, it is time to seriously consider a new court of appeal to unclog the Supreme Court and to ensure that its position as the apex court is preserved.

Even though constitutional experts as Senior Advocate Arvind Datar, Senior Advocate Ashok Bhan and others are not in favour of an NCA for the reason that a country has space for only one Apex Court, no one can deny that the services of the Supreme Court are not freely available to everyone. The mere fact that the highest number of cases filed in the Supreme Court are from Delhi (i.e. 14% of total cases) and minimum are from the Madras High Court (i.e. 1% of total cases) in itself indicates the logistical issues in seeking justice. As the Attorney General of India Senior Advocate KK Venugopal had himself earlier pointed hat the Apex Court had strayed from its original character as a constitutional court. He had opined that the Supreme Court had sought to correct every error which it finds in the judgments of the high courts of the country, while mooting for the idea of creation of intermediate courts by an amendment to the Constitution. Therefore, it is time that the idea for four regional courts of appeal as final appellate courts should be heavily considered, while restricting the Supreme Court to its true function as a constitutional court.