The advent of COVID-19 and the various challenges it has brought has created an unprecedented backlog of cases in the Supreme Court. The Indian judicial system has a tiered hierarchy, the appeals from various tribunals and high courts are appealable in the Supreme Court. The end result of which is that the finality which should be granted to the high court judgements loses its sanctity. The need for the sanctity of the high court to be maintained was first advocated in the 14th Law Commission report in 1958.
The recent statement of the Attorney General of India seems to have brought to the fore once again the idea of creating a National Court of Appeal. The idea of a National Court of Appeal is to bifurcate the institution of the Supreme Court into two divisions, creating a separate body to deal with the appeals from the various high courts.
Then again, in 1984 the Law Commission proposed the setting up of a constitutional division within the present Supreme Court. Two years after this recommendation, the constitutional bench of the Supreme Court while disposing of a writ petition that the Supreme Court was never intended to be a regular court of appeal against the orders made by the high courts or of the sessions courts or the magistrates. It was a body created to lay down the law for the entire country and for that purpose only it was given extraordinary jurisdiction to grant a special leave to appeal under Article 136 of the Constitution so that it may interfere wherever it is found that the law was not being correctly applied. The powers given to the Supreme Court under the Constitution of India were to correct any grave miscarriage of justice, and not to adjudicate all manner of disputes.
It is very evident from the judgement of Bihar Legal Support Society vs Chief Justice of India (1986)4 SCC767, that the fear that the Supreme Court would be burdened by a tremendous backlog of cases was very real and even in 1986 a possibility that we were exploring.
A government order in 2014 again rejected the proposal and held that a Court of Appeal has not been envisioned in the constitutional paradigm of India.
Attempt was again made in 2016 in V Vasantha Kumar vs HC Bhatia and Others (2016) 7 SCC 686 to analyse whether the Supreme Court was the appropriate forum to look at all the myriad of appeals under Article 136 of the Constitution of India. This was placed before the constitution bench and decided by a five-judge bench in Mathai alias Joby Vs George and Anr (2016) 7 SCC 700, where the Supreme Court held that no effort should be made to restrict the powers of this court under Article 136 because while exercising its powers under Article 136 of the Constitution of India the Supreme Court can after considering the facts of the case, well use its discretion. It was held that it would be better to use the said power with circumspection, rather than to limit the power forever.
From 1986 to 2021, we are looking at a backlog of 69,000 cases pending only with the Supreme Court. It is not that the judiciary has not been active; to the contrary, Parliament has increased the number of judges in 1956, 1960, 1978, 1986, 2009 and then again in 2019, when the sanctioned strength of the Supreme Court was increased to 34, the highest ever.
At present it is no secret that the Supreme Court of India is besieged with cases from all walks of life. Whether they be inter-se disputes directly brought under the guise of a ‘question of law’ or appeals from the various high courts of our vast country. Every day interpersonal matters and disputes of the populace of India knock the doors of the Supreme Court and are granted entry, in a laudable effort to ‘do no wrong’.
What that does is take away precious time from the court, leaving it little to no time to interpret important matters of the Constitution. The Constitution of India has created the Supreme Court as the ultimate guardian and interpreter of the Constitution with the intent that any question regarding the Constitution would be immediately addressed, as it has a bearing on the entire country and not just the parties to a litigation.
Anyone who has ever been involved with a litigation would attest to the fact that it is a protracted and very often a frustrating process. The backlog of the cases before the court increases exponentially. The vision of the Supreme Court as the country‘s highest judicial institution seems to have changed its character due to self-enlargement of its jurisdiction turning what was envisioned to be in essence a constitutional court into a general court of appeals.
In this scenario, although laudable, the intention of ‘do no wrong’ does more harm than good. When the apex court of the country gets involved in issues of re-appreciating evidence and deciding titles, more important questions are left behind. Questions on personal liberty and how to interpret our Constitution and its various facets take a backseat, because often they are not adjudicated ‘urgent enough’.
Another reason that the National Court of Appeal ‘appeals’ to the populace is the fact that it envisions one National Court of Appeal seated in New Delhi, with regional benches in Chennai, Mumbai and Kolkata, thus covering the length and breadth of the country. This eliminates various roadblocks that the common man faces, like language, or cultural expectations and foremost distance. Today a major problem faced by litigants is access to justice from remote areas. The creation of regional benches would enable the justice to reach the justice seekers rather than it being vice versa.
Pinky Anand is a Senior Supreme Court Advocate and former Additional Solicitor General of India. Saudamini Sharma is a Supreme Court Advocate. Views expressed are personal.