Amicus curiae and senior advocate K.K. Venugopal advised the court to seize the opportunity to re-claim its status as a constitutional court.
Noting that equal access to justice for all is a fundamental right under the Constitution, the Supreme Court on Tuesday decided to set up a Constitution Bench to debate the establishment of a National Court of Appeal (NCA) with regional benches to act as final courts of justice in criminal and civil cases.
By deciding to form a Constitution Bench in this case, the Supreme Court, facing thinning judicial strength made worse by growing pendency, stepped into uncharted territory on the basis of a petition filed by Chennai-based lawyer V. Vasanthakumar.
Now the apex court would judicially pronounce on whether there is a need to bifurcate the higher judiciary, with the Supreme Court exclusively hearing constitutional and public law cases.
Secondly, the apex court seems to introspect on its own role as the single, final court situated in the national capital dealing with an increasing load of cases — from criminal and civil appeal to constitutional questions of law. In short, a Bench led by Chief Justice of India T.S. Thakur said it was time to debate if the Supreme Court was too burdened to provide equal justice to all.
More importantly, the Supreme Court, under the stewardship of Chief Justice T.S. Thakur, has sent a clear signal to the government and lawmakers that it intends to push hard and pronounce a judgment on the constitutional viability of having an NCA. A verdict in favour of NCA would act as a great influence on Parliament to amend the Constitution itself to make room for NCA.
When met with objections from Attorney-General Mukul Rohatgi that a National Court of Appeal is “neither permissible nor desirable”, Chief Justice Thakur strongly countered whether the government has failed to see how cases lie pending in an overburdened Supreme Court for eight to 10 years. The Bench asked whether such delay was not a violation of a citizen’s fundamental right of ‘access to justice’ under the Constitution.
Amicus curiae and senior advocate K.K. Venugopal advised the court to seize the opportunity to re-claim its status as a constitutional court.
The Bench, also comprising Justice U.U. Lalit, asked amicus curiae Venugopal and Mr. Rohatgi to prepare questions for reference to a Constitution Bench to decide on, including whether a judicial decision on the NCA would affect the basic structure of the Constitution and amount to “tinkering” with it.
Chief Justice Thakur asked both lawyers to exchange notes and prepare the questions by April 4 when the case would come up again before a tri-judge Bench, which would then refer it to the Constitution Bench.
Remarking that “mundane” matters from bail pleas to dishonoured cheques to traffic violations flood the Supreme Court, Chief Justice Thakur said 98 percent of the work time of the Supreme Court judges are spent on dismissing these cases.
“We are unable to deal with all the cases. We are not here just to correct errors in judgments. We are looking at the future... Do you need 150 judges in the Supreme Court just to deal with the inflow of cases, all giving conflicting judgments? Can we not establish a National Court of Appeal? We can pronounce something on the legal aspects,” Chief Justice Thakur asked.
“Leave it to the Parliament, My Lords. National Court of Appeal will lead to amendment of various provisions in the Constitution. I do not think it [NCA] is possible,” Mr. Rohatgi replied.
But Mr. Venugopal remained firm, taking the case of Ireland which enacted the law for NCA in 2013 after six years’ debate. “State after State has amended its Constitution to usher in the NCA. But here the Centre has to have a will,” the senior advocate submitted.
He said access to justice is proportionate to distance. “Of 10 cases in the Supreme Court, 9.5 are from the Delhi High Court because of the proximity. Kerala is only 2.5 out of 10,” the amicus submitted.
“Isn’t access to justice a fundamental right for all? Does this mean access to justice has become an illusion for the people of Kerala and Tamil Nadu?” Chief Justice Thakur asked. Mr. Rohatgi said the NCA “in the middle between the High Courts and the SC is a dilution of the judiciary.”
