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 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. 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. 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, subsequent Law Commission Reports, law articles, and recent studies conducted have highlighted and quantified the extent of these problems.
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. 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, 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, -
i. The Supreme Court would be able to focus exclusively on constitutional and allied matters;
ii. The Supreme Court judges would have more time on their hands to render proper, comprehensive decisions on important matters of national significance;
iii. Cost of litigation would fall drastically, especially for those who live far away from Delhi;
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, –
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;
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;
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;
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. This project is currently in its 2nd phase of implementation. 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. 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. 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.
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. Even Chile, Mexico and Venezuela have followed suit. 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. Nigeria upon analyzing the failures in its judicial system also started using ICT in its Supreme Court as a measure to address backlogs. 
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.
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.
Every Monday and Friday, the Supreme Court hears nearly 1000 matters for admission. Considering that nearly 60% of these matters are dismissed in limine, 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.
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.
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.
B. Ensuring Geographical Accessibility
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 out of which installation in 669 locations has been completed (as of 1 March 2016). 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; 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.