The petition filed by V Vasanthakumar, advocate from Puducherry, seeking the court’s directions to the Government to consider setting up a National Court of Appeal to relieve the Supreme Court of its case burden, got a new lease of life with the two-judge bench comprising the Chief Justice of India (CJI) TS Thakur and Justice UU Lalit, deciding to refer the matter to a five-judge constitution bench to hear from 4 April.
The Attorney General Mukul Rohatgi set the tone of the hearing today by his opening remarks that the NCA is neither possible, nor desirable.
Following this, KK Venugopal, senior advocate, and the amicus in the case, and a strong votary of the NCA, countered the AG’s view, by pointing to examples from many common law countries, beginning with the 2013 amendment in Ireland, all showing that the need for separating courts of appeal from constitutional courts.
Venugopal then reeled out statistics which suggested that litigants from Delhi and adjoining areas, which are proximate to the Supreme Court, have had greater chances of appealing against high court judgments in the Supreme Court than litigants in faraway Kerala or Tamil Nadu. He then asked whether access to justice should not be the concern for the Supreme Court.
The CJI here intervened to add that if the NCA came into existence, the Supreme Court could confine itself to disagreements between high courts and death sentences, in appeal cases.
The CJI then told Venugopal that in principle, his view would have more supporters, but added that what we require is a road-map to achieve it. Supreme Court can’t establish NCA, so we want you to clarify, and deal with all relevant dimensions, the CJI told Venugopal.
Making it clear that access to justice should not be an illusion for people in Kerala and Tamil Nadu, the CJI said we need to take justice nearer home.
Specifying other concerns, the CJI asked whether the setting up of the NCA would violate the basic structure of the Constitution, and other incidental issues.
He then turned to the AG and said, he was very concerned about the independence of judiciary during the hearing of the NJAC case last year, and therefore, it can be presumed that he would support the Supreme Court in its present form.
The AG then tried to introduce some degree of clarity in the discussion by suggesting that there are different issues. One is whether we need a bench of the Supreme Court outside Delhi, as provided under Article 130. He said the Supreme Court has consistently refused to give effect to this Constitutional provision, because it would dilute the role of the Supreme Court.
The AG then said the NCA would also dilute Article 136, by which everyone has a right to come to the Supreme Court, to seek relief. If you cap NCA with this remedy, then you are striking at the root of Article 136, as he put it.
The AG then cautioned the bench that the NCA will not reduce arrears, and that it will only add more appeals. The correct way is to strengthen the high courts, he explained, and suggested that the SC must exercise restraint while admitting appeals. The SC must encourage only exceptional cases, he said.
The CJI then said 98 per cent of the time of the court is spent on eliminating the routine appeals. The AG then said, the answer is to send out a signal.
The CJI then asked to imagine the situation when the SC has 150 judges in future to cope up with the arrears. With 30, we have so many conflicting decisions, what will be the consequence if we have 150 after 25 years?, he asked.
The AG then said Pakistan also tried to set up NCA (and gave up, he hinted).
Salman Khurshid, another amicus in the case, then emphasised the need to adopt modern technology like video conferencing etc, to ensure access to justice to litigants living in remote areas from the Supreme Court. There are alternatives, and we need to examine which options will suit the Government and the judiciary.
The CJI then asked Venugopal, to coordinate with Khurshid and the AG to finalise questions which could be referred to the larger bench.
