How Do We Ease the SC’s Backlog Burden? A National Court of Appeal

Setting up a National Court of Appeal can go a long way in reducing the number of pending cases in Supreme Court.

KK Venugopal recently succeeded Mr Rohatgi as the Attorney General of India (AG). One of his first acts as the AG was reviving the debate on establishing the National Court of Appeal in India (NCA).

As reported by various news dailies, the AG has sparked a debate on the government’s intentions of establishing the NCAs, which was a possibility a few years ago. Such a request raises a particular question regarding what NCAs are, and whether the nation needs such an institution.

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What Is National Court of Appeal?

A National Court of Appeal is an adjudicating body, akin to the Administrative Court of Austria, Court of Cassation in Italy, the Texas and Oklahoma Court in the United States.

The body is supposed to deal with civil and criminal matters leaving the cases related to the Constitution and public importance to the Supreme Court.

The former shall act as the final adjudicating and appellate body in these matters thereby relieving the Supreme Court of its duty to entertain and adjudicate such appeals.

It will thereby exercise the current powers of the Supreme Court under Article 132, 133, 134, 134A and 136 of the Constitution, ie: appellate jurisdiction in both civil and criminal matters, special appeal in cases of conviction from High Courts and special leave.

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Demand for Separate NCAs in the Past

The request by the AG is not the first instance of this demand being raised. The history of establishing the NCAs goes back to the Constituent Assembly debates, when establishing a body akin to the present NCA was suggested by Shri Jaspat Roy who suggested setting up circuit courts in different parts of the country. The objective was to reduce inconvenience faced by litigants while travelling to Delhi and also reducing cost to a large extent.

The idea dealt with such an important issue that even the Father of the Indian Constitution, BR Ambedkar, gave it a nod, requesting the other drafters to consider it. However, it never culminated in anything concrete.

The second instance came from the 95th Law Commission Report, that proposed the setting up of a constitutional law division within the Supreme Court with a minimum of 7 judges dedicated solely for this division. Such suggestions were the outcome of intensive research with inputs from retired Supreme Court and High Court judges, lawyers, members of parliament, economists, academicians, etc.

The Law Commission once again in its 125th Report took up the matter, suggesting the constitution of a separate division for constitutional matters and also allowing retired judges of the court to deal with old civil and criminal appeals with an aim to dispose of cases faster.

The issue of a national court of appeal was also addressed by the 229th Law Commission Report. All of these instances even culminated in a Public Interest Litigation being filed, with a similar observation being made by the AG.

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Clearing the Backlog of Pending Cases

The next and natural question that arises is evaluating the necessity of such an institution in our country.

It is known that the Apex Court of the country, responsible for the final adjudication of cases, is heavily burdened along with a shortfall in the number of judges. Such a backlog is not a problem of today but has existed since the court’s inception.

The period of the 1980s was defined as one of crisis in court, by the then Chief Justice of India who also stated that the judicial system of the country was on the verge of collapsing due to a 400 percent increase in cases since previous year.

Today after 35 years, instead of getting better, the situation has worsened as the current backlog of cases runs over 64,000 with over 100 new special leaves being filed every week.

These 64,000 and increasing number of cases are a mixture of all kinds of law, which is why setting up of the NCA would lead to faster disposal as there would be a separate forum dealing with civil and criminal matters rather than pending in the Supreme Court.

Strengthening of Jurisprudence

The Constitution is considered to be the guiding light of every statute in a country. Constitutional interpretations affect the daily life of individuals more than any statute, thereby requiring special attention. The times when landmark judgments like Kesavananda, Minerva Mills, were propounded are gone.

Constitutional interpretation faces a major threat today, ie: ignorance of its jurisprudence.

An analysis of the data reveals a bleak picture, with Constitutional matters in around 70 percent of three-judge bench, 41 percent of five-judge bench and 100 percent of seven-judge bench, having been pending in the Apex Court for more than five years.

The judges of the Supreme Court as per the proposal will be dealing only with Constitutional Law matters, thus improving consistency and coherence. The move might lead to better judgements following adjudication by specialised judges.

Reducing Cost of Litigation

Shri Jaspat Roy, while advocating for a set-up similar to the NCA in the Constituent Assembly, cited the fact that the Apex Court being in Delhi compels litigants to travel from the farthest corners to achieve justice leading to humongous costs being spent on travel, food, accommodation etc. Distance not only takes a toll on the pocket, but also severely affects administration of justice to the litigants.

A report by the Supreme Court on appeal highlighted that the maximum number of appeals to the Supreme Court were filed from regions like Delhi, Punjab and Haryana i.e. 28.6 percent, whereas regions like Jammu and Kashmir, Sikkim, Kolkata had a meagre 3.8 percent.

This data shows that distance is a roadblock in the litigant’s path to justice. Such issues can be dealt with by setting up the NCA across four regions of India, with the New Delhi bench handling matters of the northern part of India, Chennai taking up matters in the South, Mumbai looking after cases in the West and Kolkata adjudicating in matters in the East. This will reduce expenditure and save litigants’ time as they can approach the nearest bench of the NCA.

Despite numerous demands for establishing the NCA, the legislature has not approved it. Various authors have attributed multiple reasons behind the delay such as:

- NCAs also facing backlogs
- Financial burden on the state and
- The existence of other avenues, that includes appointing more judges.

However, we must remember that an institution of such prominence cannot be established without due checks and balances.

An efficient system should ensure stricter implementation as far as filing of frivolous cases is concerned and appoints requisite number of judges.

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(The author is a law student at the National Law University, Jodhpur. He can be reached S_Tripathi07. This is a personal blog and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

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