A National Court of Appeal is being advocated as an intermediate forum between the Supreme Court and the various high courts of India. But a better solution to ease the higher judiciary’s burden may lie in strengthening that of the lower.

Much as Justice Felix Frankfurter once said of the U.S. Supreme Court, India’s Supreme Court too is a “is a very special kind of court”. It is special because it acts as a final court of appeal. It is special because its decisions are determinative; its pronouncements constitute the law of the land. And it is very special because under our political structure, the court acts as the ultimate arbiter on disputes concerning any interpretation of the Constitution. However, in recent times, especially over the last two decades or so, the court’s ability to remain special, to retain its allure, has somewhat been thwarted by the enormity of its burden.
Unlike its American counterpart, the Indian Supreme Court is a multifarious institution. It often tasks itself with ruling on run-of-the-mill civil and criminal appeals. The court’s docket, in fact, tends to burst with seemingly mundane disputes. These tend to include, to name but a few typical cases, rent control quarrels between landlords and tenants, factual squabbles over tax assessments, internal managerial rows concerning societies and trusts, and what not! As a result of entertaining these everyday appeals, which have little bearing on the larger public interest, the court’s focus has wavered from what many believe is its core task: deliberating on, and settling, questions of pure constitutional significance.
Easing the court’s burden

An oft-repeated suggestion aimed at correcting this perceived imbalance in the apex court’s role is the establishment of a National Court of Appeal (NCA) that would act as an intermediate forum between the Supreme Court and the various high courts of India. Although there is little scope under our country’s constitutional structure for the creation of such a court, the idea has once again come into vogue.
Recently, on a public interest litigation initiated by a Chennai-based lawyer, V. Vasanthakumar, demanding the establishment of such an NCA, the Supreme Court not only ordered notice to the Union of India but also proposed to refer questions of law concerning the establishment of such a court to a constitution bench of five judges. According to its proponents, the NCA, which would be headquartered in New Delhi, and which would have different regional benches, would relieve the Supreme Court of the weight of hearing regular civil and criminal appeals, allowing the court to concentrate on determining only fundamental questions of constitutional importance. Additionally, it has been argued that the NCA’s regional benches would allow greater access to litigants from remote parts of the country, for whom the distance to New Delhi acts as a grave barrier to justice. Although intuitively these arguments present a cogent structural solution, in reality they are unable to see the wood for the trees. The issues besetting the Supreme Court, and indeed the Indian judiciary as a collective whole, are far too deep-rooted for the NCA to represent the kind of panacea that it has been made out to be. Quite contrary to what has been suggested, to restore the Supreme Court’s grandeur, the focus ought to be not on altering the core structure of the judiciary, but in aiming to make changes that are more pragmatic, that place an emphasis on the strengthening of the base of India’s judicial edifice.
The decline of constitution benches

It is undeniable that the Supreme Court’s role as the Constitution’s sheet anchor has been weakened in recent times. This dilution, at least partly, owes to the court’s inability to devote itself substantially to the determination of important public questions. As Nick Robinson’s studies have demonstrated, the number of cases decided by constitution benches — benches comprising five or more judges — has steadily declined right from the Supreme Court’s inception. Between 1950 and 1954, almost 15 per cent of the total cases decided by the Supreme Court were decisions of constitution benches. By the time the 1970s came around, this figure had dipped below one per cent. Between 2005 and 2009, benches comprising five judges or more decided only a worryingly paltry 0.12 per cent of the court’s total decisions. This has meant that in spite of the specific precepts of Article 145(3) of the Constitution — which mandates that a minimum of five judges sit for the purpose of deciding any case involving a substantial question of constitutional law — division benches of two judges have increasingly decided important disputes requiring a nuanced interpretation of the Constitution.
For example, in December 2013, it was a bench of two judges, in Suresh Kumar Koushal v. Naz Foundation, which reversed the Delhi High Court’s momentous judgment declaring Section 377 of the Indian Penal Code, insofar as it criminalised homosexuality, as unconstitutional. Similarly, when last year in Shreya Singhal v. Union of India the Supreme Court struck down the pernicious Section 66A of the Information Technology Act, in the process paving the way for a refined thinking on the right to free speech, it was once again a bench of two judges that rendered the verdict.
What we have, therefore, is a quite unusual scheme of constitutionalism where any given pair of two individuals is vested with the enormous power of ruling conclusively on significant matters of public importance. This phenomenon — still relatively recent — of rulings by two-judge benches in noteworthy cases has coincided with the court’s mounting docket. What’s clearly evident is that this manner of functioning is far from what the Constitution’s framers envisaged of the Supreme Court.
The apex court’s original mandate

Broadly, the Constitution prescribes to the Supreme Court two types of jurisdiction: an original jurisdiction — i.e. the power to entertain cases at the first instance — where fundamental rights have been violated, or where a State is involved in a dispute with another State or with the Centre; and an appellate jurisdiction, where a case involving a substantial question of law requires adjudication, on appeal. The court was therefore always seen not merely as an arbiter of constitutional disputes, but also as a plenary body that would settle the law of the land. However, by all accounts, the Constituent Assembly believed the court would exercise great discretion in choosing its own scope of work. The court was not seen as a forum to argue over ordinary disputes between litigants that had no larger public bearing. It was believed the lower judiciary and the various high courts would be sufficiently equipped to dispense justice in these kinds of cases.
That the Supreme Court has today used the pliability of its power to grant special leave to often interfere in mundane disputes is therefore not a product of any structural problem, but rather of a deliberate decision by the court’s judges. Viewed thus, it is difficult to understand how the creation of an NCA would somehow ease the burden on the Supreme Court, allowing it to eschew its authority to grant special leave; this power was, after all, always meant to be used only in exceptional cases, where a particular interpretation of a law required definite resolution.
A bottom-up approach needed

What the NCA is meant to do, therefore, can quite easily be achieved by strengthening the lower judiciary, which generally constitutes the courts of first instance. Correspondingly, as was always intended, the high courts can be viewed as the regular — and, in most cases, final — appellate court. No doubt, to achieve this, it is necessary that there is greater rigour involved in choosing our judges. If socially conscious and meritorious women and men, who subscribe to the best constitutional values, are elevated as judges to our subordinate judiciary and the high courts, the idea of viewing the Supreme Court as a routine court of appeal can be renounced altogether. This would allow the Supreme Court to be more discerning in its use of discretion, thus substantially reducing its burden of acting as a corrector of simple errors. Moreover, at the same time, at least two constitution benches can be designated to hear cases Monday through Friday, thereby solving problems concerning the inability of the Supreme Court to devote itself to its most important duty.
Were we to tailor our solutions thus, through a bottom-up approach, the purported difficulty of access to the Supreme Court also begins to present itself as a red herring. That the real issues of accessing justice relate not to the Supreme Court but the lower judiciary becomes even more apparent through a study of the latest figures released by the National Judicial Data Grid (NJDG). The data show us that there is only one judge for every 73,000 people in India, a figure that is seven times worse than the United States. And even more staggeringly, at the present rate of functioning, according to the NJDG, civil cases will never get fully disposed of, and it will likely take more than 30 years to clear all the criminal cases presently on the file of India’s lower courts.
To think about making changes even to the basic system of dispensing justice isn’t necessarily a bad thing. But what’s clear from the NJDG data is that our judiciary isn’t broken because of any deficiencies in structure, but rather because of the feeble infrastructure that we have installed to support our justice delivery system. If we work towards establishing a more robust subordinate judiciary, it would not only negate any requirement on the part of most litigants to approach the Supreme Court, but it would also free the court of its shackles, allowing it to possibly regain its constitutionally ordained sense of majesty.
(Suhrith Parthasarathy is an advocate practising at the Madras High Court. He is also currently working on a biography of the Supreme Court.)