Do we need another court of appeal ?

Noting that equal access to justice for all is a fundamental right, the Supreme Court last week referred to a five-judge Constitution Bench the question whether a National Court of Appeal (NCA) with regional Benches—in North, South, East and West—can be established?
The NCA, advocated as an intermediate forum between the apex court and various high courts, is meant to act as the final court of justice in dealing with appeals from high courts and tribunals within their region. In such a scenario, the Supreme Court would divest itself of about 80% of the pendency of cases of routine nature to take up issues related to the interpretation of the Constitution and matters of national importance. The argument is the NCA would allow greater accessibility to justice and reduce huge pendency of court cases.
“It is common knowledge that the huge backlog of cases in the Supreme Court not only attracts criticism from the litigant public, but also from independent observers of the judicial system,” a Bench headed by Chief Justice of India TS Thakur observed, while framing 11 questions to be addressed by the Constitution Bench, including the amendment to the Constitution involving its basic structure, which has been held sacrosanct and unalterable.
However, the central government, through Attorney General Mukul Rohtagi, opposed any such move, saying, “All that will happen is another tier in the hierarchy. It is a self-defeating exercise.” It is “neither permissible nor desirable … the idea is a fruitless endeavour and will not lessen the burden of 2 crore cases pending in trial courts … we will only be adding to lawyers’ pockets. The Supreme Court should not consider this when its own dockets are full,” the top law officer argued.
But the Supreme Court found support in amicus curiae and senior advocate KK Venugopal’s stand that it should seize the opportunity to reclaim its status as a Constitutional Court. “Mere increase in the number of judges in the Supreme Court will not be an answer to the problem of undue delay in disposal of cases,” he said.
The possibility of establishing the NCA has elicited mixed reactions from the legal fraternity. Some feel that the Supreme Court is saddled mostly with mundane disputes and needs more time for its real mandate—that of a Constitutional Court, the ultimate arbiter on disputes concerning any interpretation of the Constitution.
“Easing the Supreme Court burden is of prime importance. It often hears run-of-the-mill appeals that have little or no bearing on larger public interest. Of late, its woes have worsened with the surge in new legislations,” according to lawyer Adit Khorana.
Lawyers from South India think that the establishment of the NCA will avoid hardship to litigants, and the unduly long and expensive travel to Delhi is a deterrent to real access to justice.
However, senior colleagues at the bar don’t see a real need of the NCA.
Senior counsel Harish Salve expressed “reservations,” saying a better solution to ease higher judiciary’s burden may lie in strengthening lower courts. “What the NCA is meant to do can quite easily be achieved by strengthening the lower judiciary and filling vacancies in high courts,” added senior lawyer Arvind P Datar.
“What is required is strengthening high courts, filling up vacancies, use of technology and imposing heavy cost on those who file frivolous petitions and waste the court’s time. The Supreme Court shall intervene in only those cases involving substantial questions of law,” said another lawyer.
Datar is wary of the proposal of the Prime Minister’s Office (PMO) to look at the role of appellate tribunals that hear pleas against orders by the Securities & Exchange Board of India (Sebi) and Competition Commission of India (CCI). At present, appeals against Sebi’s orders go to the Securities Appellate Tribunal (SAT) and those by CCI to the Competition Appellate Tribunal (Compat).
To make the capital markets regulator and the competition watchdog more effective, the PMO has sought the opinion of members of the Federation of Indian Chambers of Commerce & Industry and others on whether these tribunals are really required, as appeals to high courts are admitted in such cases.
Salve said that appellate tribunals are required for the development of financial markets. “We need appellate tribunals not because regulators are incompetent, but because a ‘second look’ in appeals is a vital check and safeguard,” the senior lawyer said.
However, Datar said tribunalisation is “a systematic attempt to take away all judicial functions of high courts. Their primary function is to provide employment to retired bureaucrats. I totally condemn tribunalisation. Already a lot of tribunals are in a pathetic state. Debt Recovery Tribunals have been a total failure. Parliament had to introduce Securitisation Act which enabled banks to attach assets of defaulters without recourse to any kind of judicial process.”
According to the senior counsel, the solution lies in strengthening existing courts and filling vacancies.
“There are around 40,000 vacancies of judges. A huge backlog can never be a justification for creating tribunals. And then how many appeals come from SAT or Compat? Maybe 15-20 in a year,” he added.

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