A win-win for judges, people

The long-standing demand of establishing a Court of Appeal in India has found the support of the Attorney General for India K K Venugopal. He mooted the idea when he was speaking at the Independence Day function at the Supreme Court.

This comes after Vice President of India Venkaiah Naidu favoured the idea of setting up regional benches of the Supreme Court in four different cities across the country. The idea of Venugopal, however, is different from that of the Vice President.

The AG’s idea essentially means a division of the Supreme Court, as Law Commission of India, has recommended in several reports, into two divisions, namely Legal Division and Constitutional Division.

Venugopal’s idea is premised on restoring the Supreme Court to its original functions – adjudicate constitutional disputes.

Founding father of the Constitution B R Ambedkar has envisioned the Supreme Court as a court to lay down the substantial question of law and not to function as an ordinary court of appeal, with the appellate jurisdiction to be exercised only in extraordinary circumstances. This is evident from the scheme and provisions of the constitution which provide the Supreme Court with original jurisdiction, that is, the power to hear matters at the first instance, only with fundamental rights and disputes between states or state and the Centre.

Appeals are maintainable only after certificate by the high courts or if granted leave of the court by the Supreme Court itself. But over the years, things seemed to have changed. In 2007, the three categories of cases that were most prominent among all, were criminal matters (974 decisions), benefit matters (737 decisions) and indirect tax matters (651 decisions).

Despite the fact that the court acknowledged 12% of matters set before it for normal hearing, the most elevated acknowledgement rates were for direct tax matters (20%) and arbitration (19%).

On the other hand, just around 1% of the court’s standard hearing choices involve public interest litigation (PIL).

When we analyse the observational information in the previous couple of years, the percentage of admission matters that are SLPs (Special Leave Petition) has expanded from 78 to 82% in the 1990s to 83-86% in the period 2005-2011.

However, the bigger change in the court’s admission has come in connection with the writ petitions which showed a drop from 4-7% to 1-2% of the docket amid similar periods.

Attributable to the extensive number of SLPs, the court is confronting a genuine excess circumstance.

As indicated by the information accessible, the Supreme Court disposed off 47,424 cases in 2015, in contrast with 45,042 in 2014 and 40,189 in 2013.

But, even after such exertion of quick case disposal, the backlog in the Supreme Court still stands at a staggering figure of 59,468 cases as of February 2016.

This adversely affects the ability of the Supreme Court to decide constitutional cases for which it is meant. In the words of former Chief Justice of India T S Thakur, 98% of the estimated working time of the Supreme Court judges is supposedly wasted in dismissing such cases of appeal.

This is also emphasised by the present CJI Ranjan Gogoi who wrote to the government to increase the number of the judges in the Supreme Court as there were not enough judges to constitute constitutional benches as most judges were busy with appeals.

It was recommended that the Supreme Court shall be divided into two divisions, namely Legal Division (Court of Appeal) and Constitutional Division. Constitutional Division should have seat in New Delhi and should deal with only important cases.

In the opinion of Venugopal, these should be cases of national or public importance, involving a substantial question of law, settling differences of opinion between the high courts or Court of Appeal, the constitutionality of laws, resolving inter-state or State-Centre conflicts, and Presidential reference under Article 143.

The Court of Appeal should have seat at four different cities across the country – Delhi, Kolkata, Mumbai, and Chennai/Hyderabad.

These courts would hear an ordinary appeal. Judges to these courts should be appointed in the manner as it exists today for the appointment of judges to the Supreme Court by a collegium comprising CJI and four senior-most judges of the Supreme Court.

Proximity matters

This would also solve the problem of litigants and the demand for regional benches of the Supreme Court. This, in fact, can be seen from the fact that most of the cases in the Supreme Court are from areas in proximity to Delhi.

The Delhi High Court had the most elevated recurrence of cases disposed off by it and matters appealed to the Supreme Court were to the extent of 9.3% only. The high courts of Uttarakhand as well as Punjab are close to Delhi and have had an appeal rate to the Supreme Court of more than 5%.

All other high courts, other than Himachal Pradesh (3.2%) and Bombay (3.0%), had an appeal rate of under 3%. Madras had an appeal rate of only 1.1% and Orissa less than 1%.

The four high courts with the highest appeal rates are likewise the four nearest to the Supreme Court in 2011.These high courts generated 34.1% of the appeals to the Supreme Court, yet catered to just 7.2% of the aggregate populace.

Such a scenario causes problems not only for the litigants but also for the Supreme Court which is handicapped from discharging its role of constitutional adjudication so much so that judges are increased to allow the Court to constitute constitutional benches.

In such a light, the judiciary and legislature must come together to give serious thought to the Court of Appeal and create a win-win situation for both, the judges and the people of this country.

This way litigants would have cheaper access to justice whereas the Supreme Court can expediently decide constitutional cases and not delay them which have profound impact upon the public in general.

(The writer is a student with the National Law School of India University, Bengaluru)