We Do Not Need National Court Of Appeal

In the first Lawyer versus Student debate featuring Mr. Salman Khurshid and Mr. Vasujith Ram.

JULY 11th, 2016


Representing the sides

For
Salman Khurshid, Senior Advocate and Former External Affairs and Law Minister
Salman Khurshid is a famous politician who has been active in the Indian political arena for almost three decades. He was the Union Cabinet Minister of External Affairs. He is a celebrated author and a lawyer who has been a key member of Congress since the time Indira Gandhi was in power. He was the Union Deputy Minister of Commerce and the Union Minister of Law and Justice before he finally ascended to his current position. Supreme court has appointed him as the amicus curiae in the case of V Vasanthakumar v. HC Bhatia and Ors which deals with the issue of establishment of National Court of Appeal in India.
Against
Vasujith Ram, 5th Year student, B.A.LLB. (Hons.), WBNUJS
Vasujith Ram is a final year student at the National University of Juridical Sciences (NUJS), Kolkata, pursuing the B.A.LLB. (Hons.) degree. He serves as the student Chief Editor of the Journal of Indian Law and Society, a peer reviewed interdisciplinary journal based at NUJS. He also serves as a permanent contributor to the Law and Other Things Blog. He researches on and is academically interested in ​public law as well as interdisciplinary subjects such as quantitative legal analysis, Behavioural Economics and Law and Economics. He has been a part of the NUJS team to review the Bengal Vagrancy Act and the Draft Labour Code on Industrial Relations.

The National Court of Appeals case has become a highly debated topic in the recent past. While the case is still being decided in the Supreme Court, legal pundits/luminaries across the nation have been weighing and counter-weighing arguments for and against the establishment of the NCA.

Here's a brief overview of the controversy surrounding this case. The proposed NCA framework envisages establishment of three regional branches of the NCA in Chennai, Mumbai and Kolkata which would be the final appellate authority in "civil, criminal, labour and revenue matters". This would give Supreme Court the time to deal with constitutional matters. The idea of the NCA was first raised in 1986 when it did not draw much attention. Subsequently, in 2014, a petition to the same effect was filed in the Supreme Court by a Chennai based lawyer, Mr. V. Vasanthakumar. But it was rejected. Finally, the petition was admitted in 2016 and the case is still in pending.

In this debate, we have two heavyweights on both the sides. Mr. Salman Khurshid needs no introduction. With his cogency, he manages to dismantle his opponent's most compelling argument with impeccable ease, leaving us in awe every time. On the other side, we have Mr. Vasujith Ram, an opponent worthy of replying to Mr. Khurshid's essay (Don't let the "student" tag sway you there! Wait till you read his reply).

Without much ado, we invite you to read this extremely informative and engaging debate, and request you to cast your votes according to the side you found more convincing. You are also encouraged to share your thoughts in the comments.



VOTING

Final votes for the debate:

We Do Not Need National Court Of Appeal

-SALMAN KHURSHID (For the motion)

On 21st November, 2013, a writ of mandamus was filed to reconsider the representation of the petitioner for consideration and implementation of the suggestion of the Constitutional bench of the Supreme Court reported in Bihar Legal Support Society vs. Chief Justice of India[1] case for the establishment of National Court of Appeal with regional benches at Chennai, Mumbai and Kolkata within such reasonable time as may be stipulated by this Hon’ble Court. It was clear that the petitioner was anguished by the following issues that are plaguing the Supreme Court–

  1. 1. Overwhelming backlog of cases in the Supreme Court: Due to liberal exercise of discretionary powers under Art. 136, inability of the court in its present structure to effectively dispose of matters, and other reasons.

  2. 2. Geographical inaccessibility of the Supreme Court for those who do not live in the vicinity of Delhi.

There is no denying that these problems do exist in the Supreme Court. Various Supreme Court decisions[2], subsequent Law Commission Reports[3], law articles[4], and recent studies conducted have highlighted and quantified the extent of these problems.[5]

The current backlog of the Supreme Court is caused due to multiple factors. To say that an overtly liberal exercise of powers under Article 136 is the major cause of this issue would be an over simplification of the issue. Changes in the way the lower judiciary  functions, maintaining adequate strength of the high courts, changes in methods of practice by lawyers, targeted technological  investments in information and communications technology (ICT),  etc., would go a long way in solving these problems.

A representation has been sent to the Union Law Ministry to set up a National Court of Appeals that would function as an appellate court from the various High Courts (presumably exercising jurisdictions under Articles 132-136). The pros and cons of the NCA will be discussed in detail below.

However, the primary focus of my submission will be on ways in which this Court can effectively address the twin problems of backlog and geographical accessibility without any alteration of the court structure, primarily using ICT.

PARLIAMENTARY INTERVENTION: WHAT IF AND WHAT AFTER

Parliamentary intervention, as envisaged would result in the formation of a National Court of Appeal (NCA). If such a Court were to be established, it would require the cooperation of many constitutional bodies. Any amendment to Ch. IV of Part V and Ch. V of Part VI of the Constitution will require the procedure under Art. 368 to be followed, i.e. before any such bill can be presented to the President, it has to be ratified by the legislatures of at least half the states in India.

This will be a considerable constitutional exercise involving a large number of political players. Besides, it would be difficult to know how different states would react to having or not having a regional bench in their State. Nevertheless, assuming the Union and State legislatures manage to pull off such an exercise a hypothetical structure of such a court would be as follows-

A National Court of Appeal with Regional benches: A hypothetical structure

The National Court of Appeal (NCA) will absorb the 140 category of cases with respect to which the Supreme Court currently exercises its appellate jurisdiction.[6] Apart from Delhi, the High Courts at Bombay, Madras, and Calcutta could be the seats of the Regional benches.

The NCA (Delhi Bench) will have under its jurisdiction appeals from the High Courts of Jammu & Kashmir, Delhi, Himachal Pradesh, Punjab and Haryana, Uttarakhand and Allahabad.

The NCA (Bombay Bench) will have under its jurisdiction appeals from the High Courts of Bombay, Gujarat, Madhya Pradesh, Chattisgarh and Rajasthan.

The NCA (Calcutta Bench) will have under its jurisdiction appeals from the High Courts of Calcutta, Gauhati, Patna, Jharkhand, Manipur, Meghalaya, Orissa, Sikkim, and Tripura.

The NCA (Madras Bench) will have under its jurisdiction appeals filed from the High Courts of Hyderabad, Karnataka, Kerala, and Madras.

Articles 132, 133, 134, 134A and 136 would have to be suitably amended to transfer the powers hitherto exercised by the Supreme Court under them to the National Court of Appeal. Jurisdiction under Articles 32, 131 and 143 shall continue to vest with the Supreme Court.

All these amendments would  necessarily require the procedure under Article 368 to be followed.

The strength of the Supreme Court could be reduced to 15 judges, who will then sit in three benches consisting of 5 judges each, to decide only constitutional and allied matters.

As per the suggestion put forth by Mr. K.K. Venugopal,[7] Senior Advocate, the age of the Judges of the NCA could be 65 years while the age of Supreme Court judges could be raised to 68 or 70 years. The number of judges should ideally be equal in all the regional benches. Mr. Venugopal has suggested 15 judges in each bench (totalling 60 judges) sitting in benches of three (5 benches). This would result in 20 benches functioning at the same time around the country, effectively tackling the backlog.

The advantages of such a system are, -

  1. i. The Supreme Court would be able to focus exclusively on constitutional and allied matters;

  2. ii. The Supreme Court judges would have more time on their hands to render proper, comprehensive decisions on important matters of national significance;

  3. iii. Cost of litigation would fall drastically, especially for those who live far away from Delhi;

  4. iv. The National Court of Appeal could have specialist/ expert benches dealing with specific type of cases to ensure speedy disposal of similar types of matters

On the other hand, the disadvantages of such a system would be, –

  1. i. Regionalism – Setting up regional benches in four zones may result in demand for further splitting of NCA by setting up additional benches in more zones;

  2. ii. The NCA might be able to tackle the present backlog but, considering the trend of increasing litigation, it is merely a matter of time before the NCA too is plagued with problems of backlog;

  3. iii. There will be higher chances of conflicting views and judgments. The Supreme Court in its current avatar/structure with 12-13 benches itself is of a poly-vocal nature. If the number of benches increases to 20, it would lead to further conflicts for which the Supreme Court might have to intervene to settle any inconsistencies;

  4. iV. There will be substantial financial burden on the State to set up something of this nature. In light of the disadvantages discussed, the question whether such a significant investment is justified should be considered very carefully.

TECHNOLOGY: ROLE AND EFFECT

I strongly believe that instead of the protracted process described above, it would be more feasible to utilise modern advances in information and communication technology to effectively address the problems of the apex court without compromising its constitutionally mandated structure.

Multiple jurisdictions around the world have addressed similar problems faced by their judiciaries by undertaking targeted investment in ICT to better lubricate the judicial cog wheels, making it more accessible to the common man.

It is pertinent to state that significant advances have been made towards digitising the courts and court procedure in a bid to make it more accessible to the common man on the recommendations of the E-Committee of the Supreme Court. The E-Committee has started the process of phase-wise implementation of its recommendations to computerise lower courts, digitise court records, setting up a National Judicial Data Grid, setting up a National Portal, and changing practice and procedure rules to implement the same.[8] This project is currently in its 2nd phase of implementation.[9] The said  project is an excellent initiative to improve the working of the lower judiciary and will certainly have a trickle-down effect on the future working of the Supreme Court.

As laudable as this initiative is, it will take a long while for these changes to manifest in any significant effect (if any) on the problems under discussion in this report. Besides, the increase in the rate of new filings at the Supreme Court will arguably outpace any eventual increase in the disposal rate merely due to these measures. Instead, what is suggested is a targeted investment in key areas coupled with certain changes in practice methods of the Supreme Court that will help in overcoming geographical  inaccessibility to the Supreme Court as well as increase the disposal rate of the court.

  • 1. Experiences from other jurisdictions

The use of technology in the judicial system has been considered to be a panacea to the problem of inaccessibility to courts and by extension – justice, in various jurisdictions. Among these, judiciaries of the United Kingdom and Europe are foremost in the usage of ICT.[10] This may be gleaned from two sources. First, the 2014 report of the Council of Europe's Commission on Efficiency of Justice ("CEPEJ"),  prepared every two years, suggests that ICT is used for the purpose of access to justice, access to courts and access to legal information through means of case management, e-filing, online trials at various tier levels of the judiciary, including the apex courts.[11] Second, the Consultative Council of European Judges ("CCJE") which is an advisory body of the Council of Europe, in its Opinion stated that the use of technology is required at every level of the judicial system including the apex courts, so as to adhere to the standards of Article 6 of the ECHR, which describe providing reasonable opportunity for a fair hearing as a civil right.[12]

In the Brazilian Judicial System, not only has the Supreme Court employed ICT for basic functions, but it has also made recommendations for its own administration on technological basis for a long-term modernization process.[13] Even Chile, Mexico and Venezuela have followed suit.[14] In the South African judiciary, where the Supreme Court of Appeal and the Constitutional Court are the highest courts, have also employed technology in an attempt to create “cyber-courts” that would provide for access to justice.[15] Nigeria upon analyzing the failures in its judicial system also started using ICT in its Supreme Court as a measure to address backlogs. [16]

There are many more judicial systems in the world that are evolving to meet the demands of the digital age. As more and more people are willing to climb the steps of the court to defend their rights and settle disputes, it is pertinent that the Indian judiciary learns from other judicial systems and implements suitable measures to ensure access to justice and the judiciary for all its citizens.

  • 2. Technological and Procedural changes at the Supreme Court of India

As stated earlier, technological changes in the Supreme Court should be targeted to address the twin problems of backlog and geographical inaccessibility. When such technological investments  are coupled with certain procedural changes to the practice of the court, it could result in a faster and more efficient court.

Consequent to the E-Committee recommendations, there is already significant ICT infrastructure in place at the Supreme Court. The use of these two to achieve the above two objectives will be discussed below.

  1. A. Tackling Backlog

The problem of backlog has arisen essentially due to the wasteful  expenditure of court time. While it is important for the Supreme Court to give a reasoned decision on every matter that it hears, it is equally important that the Court’s time is not wasted unnecessarily.

A number of suggestions have been given by eminent members of the legal fraternity as to how the Supreme Court can function more efficiently.

  • i. Disposal of admission matters by circulation, oral hearing allowed only after notice is issued.

  • [17]

Every Monday and Friday, the Supreme Court hears nearly 1000 matters for admission. Considering that nearly 60% of these matters are dismissed in limine,[18] the Court could consider an alternative mechanism to decide these matters.

Once a matter is filed before the Supreme Court, a decision on its admission shall be taken by circulation. In the event notice is issued, the respondents shall file their replies, and rejoinders, if any, shall also be filed. This entire process should be completed in the Registrar’s court itself. Once the pleadings are completed, there shall be a hearing in open court for the bench to take a decision after considering the contentions of both parties to the dispute. In effect, the Court will hear the matter only after it is listed for final disposal, not before. The entire process until such listing shall be completed without utilising court hours.

  • ii. Oral Arguments limited by time, further time allowed only in exceptional circumstances.

  • [19]

Having time limited oral arguments is a practice that is followed in many apex courts of jurisdictions across the world. It not only encourages concise and crisp advocacy but also saves the valuable time of the court. The judges hearing the matter might allot equal time to both parties themselves or the advocates appearing in the matter should state the time they will take and rigorously stick to it. The bench hearing the matter should severely reprimand advocates taking more time than they had stated at the outset; imposing cost on frequent violators may also be considered as a means of enforcement.

  • iii. Comprehensive written briefs with oral arguments restricted merely to queries of the bench.

  • [20]

Although the practice of submitting written submissions is encouraged by a few judges, it is often left to the discretion of the advocates appearing in the matter or the bench to ask for the same and often these submissions are made after oral submissions are made, as a summary of submissions already made. On the contrary, if comprehensive written submissions, containing the primary submissions, arguments refuting the contentions of the opposing side, relevant extracts of case law relied on, etc., are submitted before a matter is heard then the bench can restrict oral arguments to only those issues on which they wish to obtain further clarity.

  1. B. Ensuring Geographical Accessibility

  • i. E-courts

Phase II of the action plan of the E-Committee’s recommendations includes a proposal to install video conferencing facilities in 830 locations around the country[21] out of which installation in 669 locations has been completed (as of 1 March 2016).[22] The idea being that valuable resources of the state can be saved in transporting the accused to and from prison for their trial, instead the accused and the concerned police officials are before the judge via a video conference link while the lawyers appear in person before the judge. The court proceedings are also streamed live to those interested. The E-committee has proposed that this facility will be gradually availed in all matters and not only criminal trials.

It is suggested that the similar facilities be established at the Supreme Court as well to hear matters on appeal from various High Courts by video conference. Special court rooms may be set up in the Supreme Court with video conference facilities. A similar court room may be set up at each high court (except the Delhi High Court) where advocates can appear before judges sitting in the Supreme Court in Delhi. Thus court sanctity and decorum will also be maintained and the Supreme Court will be locally accessible to litigants and advocates from distant states.

  • ii. Change in AOR rules and e-filing

Subsequent to the E-Committee recommendations, E-filing facility is already available at the Supreme Court for an Advocate-on Record to file matters. According to the Supreme Court Rules AORs are required to have an office within 16 kilometres of the Supreme Court;[23] this essentially bars those who do not practice in Delhi from qualifying as an AOR. If this requirement is removed from the Supreme Court Rules, then advocates from all over the country can appear in these examinations and qualify as AORs allowing them to overcome a significant geographical hurdle.

The combined effect of these suggestions, if implemented, will make the Supreme Court significantly more accessible to people from the outer reaches of the nation. The twin problems of backlog and geographical accessibility can be effectively dealt in this way without any alteration of the court structure.

References


We Do Not Need National Court Of Appeal

Vasujith Ram (Against the Motion)

Mr. Khurshid argues that there is no need for the institution of a ‘National Court of Appeal’. The envisaged structure of the National Court of Appeal (NCA) is as follows. The NCA would have four regional benches, one each at Delhi, Mumbai, Kolkata and Chennai, with each regional bench hearing cases from the allotted jurisdiction. The appellate powers presently vested in the Supreme Court under Articles 132, 133, 134, 134A and 136 would be vested in the NCA. Thus the Supreme Court, above the NCA in the judicial hierarchy, would function as ‘Constitutional Court’, to hear and dispose of only constitutional and allied matters.

In his framing of the issue, Mr. Khurshid notes two primary arguments for the institution of an NCA. These are: (a) overwhelming backlog of cases in the Supreme Court and (b) geographical inaccessibility of the Supreme Court for those who do not live in the vicinity of Delhi. Mr. Khurshid in all fairness does not deny these problems. Rather, he argues that instead of a radical overhaul in the form of an NCA, changes in procedural rules and the introduction of ICT in court functions would solve the problem.

In this essay, I will argue that we do need an NCA, since the suggested tweaks will not solve the problems that we are confronted with today.


  1. 1. INSUFFICIENT RESOURCES DEVOTED TO CONSTITUTIONAL ISSUES

Nick Robinson et. al.’s extensive empirical study of Supreme Court confirms what is commonly known amongst most lawyers and judges: the number of Constitution Bench matters have considerably declined over the years.[1] The number of Constitution Benches expressed as a percentage of regular disposals was 15.5% in the period from 1950-54, declining to 2% in the period 1970-74, and 0.12% in the period 2005-2009. What is also evident from the data is that as the Supreme Court workload rises, the number of Constitution Benches declines.[2] Another study conducted showed that out of 884 judgments (by a bench of any strength) delivered by the Supreme Court in 2014, only 64 involved constitutional issues.[3] Recently, when the question of right of privacy in the Aadhar matter was to be referred to the nine judge bench, the then Chief Justice Dattu reportedly said, “The question is, do I have nine judges to spare? How do I spare nine judges? What happens to the other pending matters then?”[4]. Certainly, Justice Dattu cannot be blamed for this institutional problem. But his statement raises serious doubts about the present structure of the Supreme Court being able to address constitutional issues of great importance effectively.

The 95th Law Commission Report (1984), entitled “Constitutional Division Within the Supreme Court – A Proposal For”, makes observations of critical importance.[5] The Commission observed that “the Constitution makers did manifest an anxiety that a constitutional controversy should, in some form or other, come up before the Supreme Court, and should, in that forum, receive consideration at the hands of a minimum number of judges[6]. It is also noted that “the forum and machinery for adjudicating on such controversies merits special attention”. The Commission further acknowledged that constitutional adjudication carries special features not found or found to a much lesser degree in ordinary adjudication –  such as specialization, consistency, availability of time, evolution of a coherent doctrine, etc. In sum, the argument of the Commission was that constitutional issues necessarily need adjudication by a dedicated and specialized forum, as envisaged by the framers, and that it cannot be handled in the same manner as litigation in ordinary law cases. With this in mind, the Commission suggested that a constitutional division be separately carved out with the Supreme Court.

From the empirical studies above, it is clear that the present structure does not permit the Supreme Court to pay special attention to constitutional issues. It takes an inordinate amount of time for cases referred to Constitution Benches to be placed before such a bench. To provide an example, in State of UP v. Jaibir Singh[7], a five judge bench opined that the decision in the BWSSB Case[8](pertaining to meaning of ‘industry’ under the Industrial Disputes Act, 1947) ought to be reconsidered by a larger bench. The matter has not yet come up for hearing before such a bench. Similarly, a smaller bench in Mathai v. George[9]referred the case to a constitution bench to look into the possibility of whether guidelines can be laid down for exercise of Article 136. Ironically, it took 6 years before the case was heard by a Constitution Bench of the Supreme Court (the Supreme Court opined that no guidelines need to be laid down).

In recent years, the constitutionality of criminal defamation[10], sodomy law[11], obscenity law[12], electoral disqualification laws[13], Section 66A of the IT Act[14] have been adjudicated by two judge benches. It is indubitably true that all these cases involved constitutional questions of profound importance, meriting special attention by the courts, preferably by five judge benches, as envisaged by the framers. Yet there were heard by two judge benches.

It is in this context that the observations of the Supreme Court in Bihar Legal Support Society v. Chief Justice of India[15]must be appreciated:

    “It may, however, be pointed out that this Court was never intended to be a regular court of appeal against orders made by the High Court or the sessions court or the Magistrates. […] We must realise that in the vast majority of cases the High Courts must become final even if they are wrong. The apex court can also be wrong on occasions but since there is no further appeal, what the apex court says is final. […] 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 apex court is concerned, it should concern itself only with entertaining cases, involving questions of constitutional law and public law. […] 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 injustice 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.”

The Supreme Court, through Chief Justice Bhagwati, acknowledges that the institution has strayed and deviated from its true role as the interpreter and guardian of the Constitution. One of the identified reasons behind the institutional failure is the sheer number of cases being heard or admitted under Article 136, leaving little time for constitutional matters. The conundrum being addressed is this: there are numerous lower court judgments which are likely to be erroneous in law; thus meriting the admittance of the appeal at the Supreme Court level. Yet this creates a situation which disallows the institution from performing its originally intended functions. The proposed solution is an intermediate court, in the form of the NCA, to handle regular appeals.

Some suggestions proposed by Mr. Khurshid– such as limiting time for oral arguments – are certainly laudable. But they are directed towards reducing the caseload, and not towards instituting a system where special attention can be paid to constitutional cases. In other words, changes in procedural rules may, to some extent, free up court time, but they are unlikely to facilitate a space where special benches can regularly adjudicate constitutional issues. In the words of Senior Advocate KK Venugopal, who also advocates the creation of an NCA, “I believe that we can no more afford to be complacent. If one has to beg for a hearing date even after 3-4 years have elapsed after filing of a case, and still cannot get a date within a month or two, it means that the system has failed. […] It is time to take bold decisions, and if we hesitate any more, without finding a solution, one would have failed the nation and the litigant public”[16].


  1. 2. GEOGRAPHICAL ACCESIBILITY

While the proposed NCA will be available in four regions across India, the Supreme Court of India presently sits in Delhi with no benches elsewhere. According to a study by Nick Robison, the appeal rate before the Supreme Court reduces with the increase in the geographic distance from Delhi.[17] For instance, while the appeal rate from the Delhi and Punjab & Haryana High Courts is 9.4% and 7.4%respectively, it is only 1.7% from the Calcutta High Court and 1.1% from the Madras High Court. These empirical figures confirm that accessibility is effectively denied for litigants and cases arising from distant High Courts. This is a matter of grave concern since the mere tyranny of distance is likely to have led to the denial of access to justice for countless litigants.

In the US Supreme Court case of Cranvell v. State of Nevada[18], the issue in question was the constitutionality of taxes levied on passengers leaving the state of Nevada. One of the reasons the Supreme Court held that the tax was unconstitutional was because it violated the right to travel and access institutions of government. The US Supreme Court held: “He has the right to come to the seat of government to assert any claim he may have upon that government or to transact any business he may have with it. To seek its protection, to share its offices, to engage in administering its functions. He has a right to free access to […] the courts of justice in the several states, and this right is in its nature independent of the will of any state over whose soil he must pass in the exercise of it.”

I cite this case to establish the importance of the ease of accessibility of state institutions to the common man. This principle has been recognized by the Indian courts as well. The Supreme Court in cases like the National Tax Tribunal case[19] has directed that the Tribunal must operate in multiple states to alleviate the hardship of litigants.

Justice Krishna Iyer aptly summed up the predicament: “The litigant sells all he has to reach Delhi and pay fabulous fees to hire lawyers, only to find that by afternoon the case stands postponed. The expense already incurred goes down the drain. Air travel is expensive, hotel costs are horrendous, lawyers charge high fees, and arguments with leisurely judges take too many days. On the whole, going to the law is like going to Banaras or Mecca: a will and testament has to be written out because litigation often lasts beyond your life-time.”[20]

Instituting an NCA would undoubtedly help litigants. The Law Commission in its 125th report observed that "the litigant will have the advantage of his case being argued by the same advocate who has helped him in the High Court and who may not be required to travel to long distances”[21].

Mr. Khushid, while acknowledging the problem, suggests that video conferencing facilities can be made available for litigants and advocates from distant states. This may help litigants from distant states. However, there are a few downsides. There are inherent reliability problems even this associated with technology. Such a proposal will also need fresh infrastructure and may require financial allocations. Instead, as per the proposed reforms instituting an NCA, the NCA can be located in the premises of the four High Courts in Delhi, Mumbai, Kolkata and Chennai. This will not lead to any significant hike in expenses.


  1. 3. BURGEONING CASELOAD

Much has been written about the burgeoning caseload at the Supreme Court level, and the issue need not be reiterated in great detail. There is no sign that the trend would stop at this stage. The problem is compounded by the high rate of acceptance of Special Leave Petitions under Article 136. In a recent study, it was discovered that in 44% of the cases, the Supreme Court issued notice. Thus the author questions: “is there anything special about special leave petitions anymore?”[22] Since the Supreme Court has refused to lay down any guidelines for the exercise of power under Article 136, it does not look likely that the problem will recede anytime soon.

There is no doubt that the backlogs and the caseload affects judicial functioning. Senior Advocate KK Venguopal remarked: “We have, however, to sympathize with the judges. They are struggling with an unbearable burden […] the functioning of the Supreme Court of India is a far cry from what should be the desiderata for disposal of cases in a calm and detached atmosphere.”[23]

An alternate system which provides for more judges is very likely to ease the bottleneck. Supreme Court cases like P. Ramachandra Rao v. State of Karnataka[24] have acknowledged that increasing the number of judges is one solution to the pendency problem. The 245th Report of the Law Commission of India also stated that judicial backlog can be attributed to inadequate judge strength.[25]Prima facie, a sure-shot benefit of instituting an NCA would be the increased number of judges.

As I have noted above, some of Mr. Khurshid’s suggestions such as limiting the time for oral arguments are certainly worthy of implementation. But some of his other suggestions, such as allowing oral arguments only for the purposes of clarifications or queries, need reconsideration. In P. N. EswaraIyer v. Registrar, Supreme Court of India[26], the Supreme Court considered the vires of a rule that stipulated that an application for review shall be disposed of by circulation without any oral arguments. Although the Supreme Court upheld the rule, the majority judgment authored by Justice Krishna Iyer in no uncertain terms stresses on the importance of oral hearings. The Court held, “We also agree that oral advocacy has a non-fungible importance in the forensic process which the most brilliant brief cannot match and the most alert judge cannot go without. The intellectual jallywork of intricate legal reasoning and impassioned sculpture of delicate factual emphasis may often be beyond the craftsmanship of pen and paper […] the normal rule of the judicial process is oral hearing and its elimination an unusual exception.”[27] Indeed, in some circumstances, oral hearing may be a fundamental rights, as has been recently held in the case of Md. Arif @ Ashfaq v. Registrar, Supreme Court of India[28].

What we need again is a drastic overhaul. We also to try and reform the system in a manner that it is able to accommodate oral hearings as much as possible, as per the dicta in the above cited cases.

Mr. Khurshid argues that the NCA would initial be able to handle the backlogs, but would soon start facing problems that the Supreme Court now faces. There is no reason why Mr. Khurshid’s suggestions regarding changes in procedural rules cannot be implemented at the NCA level in order to counter the caseload burden.


  1. 4. HASSLES IN INSTITUTING AN NCA

In this essay, I have largely focused on the need for an NCA, arguing that insufficient attention to constitutional issues, lack of accessibility and burgeoning caseload are key reasons behind the proposal. However, like many reform measures, instituting an NCA may lead to financial costs. This does not merit dismissing the proposal outright, since we are also likely to reap critical benefits out of the reforms. Thus a cost-benefit analysis ought to be done before dismissing the NCA on the touchstone of costs. One can also consider cost minimization measures, such as having the NCA in the premises of existing buildings, such as the High Courts.

The factor that can weigh in is the need for constitutional restructuring videa Constitutional Amendment. So far I have argued for the normative need for an NCA. Of course, political processes will have to be followed to carry the suggestion forward. In the meanwhile, an interim solution might be for the Parliament to pass a law increasing the number of Supreme Court judges under Article 124(1). The Chief Justice can then designate a three permanent constitution benches and for regular appeals, can set up regional benches of the Supreme Court under Article 130. It has been confirmed expressly in the Constituent Assembly Debates that circuit benches can be set up under Article 130.[29]

References


COMMENTS