National Court of Appeals: Let’s Fix the Judicial System First

Resorting to National Court of Appeals to reduce Supreme Court’s burden is not advisable, writes Maj Navdeep Singh.

The idea of a National Court of Appeals, sandwiched between our High Courts and the Supreme Court, though not constitutionally supported, has again gained prominence. The Supreme Court recently issued a notice on a petition seeking the establishment of the same with four benches in the country.

The idea emerges from the actuality that the Supreme Court is burdened with matters of all hues, leaving it with little time for deciding constitutional issues.

The question, however, arises as to why systems can’t be tweaked within the existing constitutional set-up of judicial hierarchy, so as to provide the highest Court of the land some breathing space. This will help the Supreme Court to concentrate on absolutely important constitutional questions rather than deal with routine matters which do not configure with the majesty of being the apex adjudicatory body of the country.

Redefining Judicial Hierarchy

• A National Court of Appeals makes sense, with the Supreme Court being burdened with cases of all kinds.
  
• High Courts meant for facilitating easy access to justice are losing their sheen in many ways.
  
• The exercise of power by the Supreme Court in routine decisions has sent the wrong message to the litigating public, especially the government.
  
• Challenges to the decisions of the High Court should be exceptional, but it has emerged as a mere stepping stone to the Supreme Court.
  
• We need to strategise and reconfigure our existing judicial hierarchy before resorting to another tier of appeals.
  

Bypassing Jurisdiction of the High Courts

One of the reasons being propagated for the concept of a National Court of Appeals is geographical outreach. Most respectfully, I would state that the problem is of our own making. I say so since the High Courts, meant to be the highest constitutional Courts in our States, provisioning for easy access to justice for our citizens, are being denuded of their inherent aura and sheen in many ways. Some major reasons for this corrosion of status are:

• The Supreme Court entertaining matters directly under Article 32 which could easily be adjudicated by the High Courts under their vast writ jurisdiction under Article 226. A case in point would be PILs. Though the number of such petitions is not unwieldy, the time spent on adjudication is massive.
  

• The Supreme Court entertaining Petitions by Special Leave in routine matters rather than restricting itself to exceptional cases involving points of law of general public importance or gross miscarriage of justice, thereby also putting into repeated jeopardy the finality of the word of the High Courts in such regular matters.
  

• Direct appeals being provided to the Supreme Court from Statutory tribunals thereby bypassing the High Courts.

The writ jurisdiction of our High Courts under Article 226 is even wider than Article 32 with the Supreme Court. While the latter is restricted only to the enforcement of Fundamental Rights, the former has no such fetters. With time however, the grandeur of the High Courts is on the dwindle since the exercise of power by the Supreme Court in routine decisions has sent tje wrong message to the litigating public, especially to the largest litigant in our country – the government – that files petitions in the Apex Court at the proverbial drop of a hat.

Challenges to High Court decisions were supposed to be entertained in exceptional matters, but the High Court has merely become a stepping-stone towards the Supreme Court for many. Further, instead of strengthening the regular independent judiciary or creating specialised courts within the regular judiciary, tribunals functioning under executive administrative control have mushroomed. Here, direct appeals are being provided to the Supreme Court thereby mounting its already overstretched dockets and bypassing the High Courts and also the dicta of the Seven Judge Constitution Bench in L Chandra Kumar’s case.

How to Salvage the Situation

To conclude, the concept of National Court of Appeals would not have been on our radar had we made attempts to redeem the constitutional vision. Some steps that can be taken to salvage the situation within the current dispensation can be as follows:

(a) The Supreme Court should discourage the usage of the High Court as a mere stepping-stone towards the end of judicial hierarchy. The glory and resplendence of High Courts should be reclaimed and though no straitjacket formula can be visualised, it must be instilled and forcefully ingrained in the legal ecosystem that High Courts are practically the highest constitutional Courts, with the Supreme Court interfering only in Constitutional issues, and in matters involving points of law of general public importance, or conflict of law between various High Courts, or rarest of rare cases of gross miscarriage of justice.

(b) All High Courts must entertain writs, including in the burgeoning service matters, only before Single Benches in the first instance and then to a Division Bench in the form of a Letter Patents Appeal so as to provide at least a two-tier accessible hierarchy of approach. There is no standardisation of procedure qua various High Courts since in some Courts, routine matters are directly placed before Division Benches thereby denying litigants a two-layered process within their own States.

(c) The challenges to orders of tribunals, irrespective of the former status of their adjudicating Members or Chairpersons, must only be allowed to be entertained by Division Benches of High Courts as per law laid down in L Chandra Kumar and not directly to the Supreme Court since the highest Court cannot be rendered the first appellate Court from statutory tribunals and neither can justice be made unaffordable for our citizens.

Before adverting to a new layer, the conception of which may be difficult to achieve, we need to strategise and reconfigure our existing judicial hierarchy to the rising challenges before us. The only way to do it is to revitalise our High Courts and restore them to their pinnacle.

(Major Navdeep Singh is a practicing Advocate in the Punjab & Haryana High Court. He was the founding President of the Armed Forces Tribunal Bar Association. He is a Member of the International Society for Military Law and the Law of War at Brussels)