THE SPECIAL CHARACTER OF THE SUPREME COURT
In India, delay in justice delivery has been a matter of concern that resulted in major problems encountered by almost every section of society. Comparing to the number of judicial posts being placed every year and efficiency claimed by the judiciary, the case-load reduction graph depicts an insignificant dip. The final disposition of every impugned matter at the hands of our Honourable Supreme Court; firstly, take years to reach the ultimate forum and secondly, takes years to dispose it off. The Honourable Supreme Court of India is the highest judicial forum, final court of appeal and the highest Constitutional Court in India. The recent judicial trend, de facto, speaks about the extensive application of appellate jurisdiction of the SC in the matters of less public importance, than the other two kinds of parallel jurisdiction which includes Original and Advisory jurisdiction of the Supreme Court. The SC, which was established with its very special character and functions to perform, does not merely have to judge run-of-the-mill matters. It has to take suo moto or otherwise, the responsibility to interpret the supreme law which is of immense public importance every now and then, and chose its own scope of work.
MANAGEMENT RULE OF “SPECIALISATION”
An Analogy drawn to the Management rule of Specialisation i.e. process of becoming expert in a particular area of work, will relate to the trend being discussed. Notwithstanding the Supreme Court’s special functions, it has been burdened with routine matters prominently relating to tenants eviction, tax assessment disputes, internal management issues between societies and trusts, employment disputes, child custody, dishonoured cheques, etc. which are no doubt important for the parties in dispute but not addressing the public interests at large. In the Nick Robinson study titled “A Quantitative Analysis of the Indian Supreme Court’s workload”, it was observed that in 1960s this court was able to dispose over 100 cases bearing constitutional questions in a year. Whereas the number does not even touch 8 in average in the recent times due to overburdening of general routine matters. Thus, reducing the level of expected quality of judgments which needs to be drafted & crafted to act as a long-lasting precedent law.
ORIGIN OF THE THOUGHT
The origin of the idea can be traced back in early 1986 when the SC itself made a recommendation to address the issues of ‘access to justice’ and capacity to perform primal functions by the Supreme Court. The court recommended the establishment of “National Court of Appeal” along with its Benches at Chennai, Kolkata and Mumbai covering the four geographical sides of India. Nevertheless, bifurcation of judicial powers was not considered having an upper hand on the existing structure by the then Chief justices of India. A similar proposal was presented before the Central Government by V.Vasanthakumar which also failed to persuade the legislature. Finally, in February 2016, V. Vasanthakumar filed a public interest litigation (PIL) seeking the same.
THE CONCEPT OF NCA
The concept is about better management and increasing efficiency through structural changes. The “National Court of Appeal” will act as the final court of appeal from decisions of High Courts and Tribunals exercising their jurisdiction in civil, criminal, labour, revenue matters and et al. It will clear the way for the Supreme Court to act as the ultimate arbiter in matters raising questions of constitutional interpretation. The regional benches will make the journey less arduous for the litigants seeking appeals from South, West and East regions, and thereby, easing the access to justice. The dearth of constitutional benches will be met for the unique matters pertaining to right to privacy, issues of religious freedom, minorities’ rights, governance issues and validity of legislations, etc.
For instances, the latest landmark judgment in December 2013, in Suresh Kumar Koushal v. Naz Foundation, lowering the Delhi High Court’s stand while declaring Section 377 of the Indian Penal Code, to the extent of criminalised homosexuality, as unconstitutional. Further, in 2015, in Shreya Singhal v. Union of India the Supreme Court struck down a vague and arbitrary Section 66A of the Information Technology Act, striking a balance in the freedom of expression and its reasonable restrictions. The noteworthy observation in both the judgments is the delivery of justice by the division bench depicting de facto the paucity of constitutional benches, generally, comprising of 5 judges. The proposed idea of structural organisation will prevent the Supreme Court from wasting its time, wisdom and experience which is compromised while filtering the innumerable sundry appeals in the court’s docket.
CRITICAL ANALYSIS: contentions for and against
The representation made to the Central government was not acted upon and rejected by the Department of justice, Union law ministry on the grounds:
- Firstly, the successive CJIs have opposed to this thought of dividing the judicial powers
- Secondly, this would require an amendment in the Article 130 of the Constitution which seated the Supreme Court in New Delhi only and would mean change in the Apex Court’s structural constitution completely (as argued by the Attorney-General Mr. Mukul Rohatgi, for State)
Further, the critiques submitted to the issue that the accessible regional Courts of appeal will only end up in more litigation and filling up lawyer’s pocket. It is suggested to ameliorate the lower judiciary by elevating men and women of high constitutional values, thereby, eliminating the erroneous decision-makings by them. On the other side of the perspective, the distance should not be a deterrent for curbing litigation. After a thorough reading of the Article 130 provides that, “the Supreme Court shall sit in Delhi or such other place or places as the Chief Justice of India may with the approval of the President, from time to time, appoint”, the 299th Law Commission report in 2009 opined that creation of regional benches of Supreme Court would not require any constitutional amendment. It, further, opined that this structure has efficiently implemented and working in other countries like Italy, Egypt, Ireland, the U. S. and Denmark. Further, the commission made reference to its earlier 95th report titled “Constitutional Division within the Supreme Court — A proposal for”, the 125th Law Commission report titled “The Supreme Court — A Fresh Look” and the 120th report of the Law Commission on “Manpower planning in judiciary” and et al reports of the parliamentary standing committee on personnel, public grievances, law and justice.
THE STORY SO FAR
Finally, in February 2016, the Chennai- based advocate’s petition was admitted by the Apex Court which decided to constitute 5-judge constitution bench. It directed the Attorney-General Mukul Rohtagi and the amicus curie senior advocate Mr. K.K. Venugopal to formulate questions for reference to the bench. Mr. K.K. Venugopal, a constitution expert, had unequivocally favoured the creation of the National Court of Appeal with its regional divisions since the beginning of this thought.
A Pan- India debate is called by the Honourable Chief Justice T.S. Thakur for deliberations and recommendations to decide on the issue, just like Ireland which implemented this structure after rigorous debate for 6 years. The evolution & development of ICT (Information Communication Technology) toppled the traditional concept of governance into e-governance in our country which will aid in constructing some efficient mechanism to address overburdening and specialisation of Supreme Court’s tasks. E-filing, e-committees, e-courts using audio-video conferencing as the mode of dispensation of justice are such examples. Further, the bottoms up approach seriously needs attention by introducing best evaluation benchmarks while recruiting judicial members and condemning backdoor paid entries in the pious service for justice, also empowering the High Courts to become the last court of appeal. Though the government still considers it “fruitless endeavour” but some solution through judicial reforms is much asked for and the rule of efficient management supports the above concept and its implementation.