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National Court of Appeal – Not A Good Idea: Some Suggestions

This is the sixth post of the series 'LegalTrek'. The last post was about 'Benches and the Law Commission' and this post is about whether we should have National Court of Appeal (NCA) or not what steps may be undertaken to reduce the pendency in courts.
Photogrph courtesey offcial website of the Supreme Court 


The Supreme Court has reserved judgement in the petition for creation of a National Court of Appeal (NCA), whose avowed object is to screen the High Court judgements and reduce the filing before the Supreme Court. The court is neither competent to issue such a direction, nor will it achieve desired object. On the contrary, it will further prolong the litigation and will make access to justice more expensive.

The higher courts often overrule the lower courts; judges of the same court differ in their views: this is because of the bonafide difference of opinion or as Justice Holmes put it because of 'inarticulate major premise', which is determined by the values  that the judges imbibe while growing up and the experiences that they have. 

It is said that about one third of the judgements are overruled by the higher courts. In case, there was a court higher than the Supreme Court, then its judgements in equal number would be overruled.  This has happened to the judgements of House of Lords, when UK entered the European Union and its judgements could be challenged before the European Court of Justice.    

The collegium system has its plus and minus points. It has given too much power in the hands of the Supreme Court Judges and has made High Court judges subservient.  Fali Nariman wrote about it in his autobiography 'Before the Memory Fades'. Justice Ruma Pal, retired judge of the Supreme Court, pointed it out in the fifth VM Tarkunde memorial lecture  titled 'An Independent Judiciary'.

The two outstanding Chief Justices—Justice UL Bhat and Justice SS Sodhi  in their autobiographies 'Story of a Chief Justice' and 'The Other side of Justice'—have written about it. There are many other judges with similar fate. However,  they chose not to write about it; accepted it as their destiny; and went on with other constructive activity: the most notable among them was Justice GP Singh.   Undoubtedly, he was the greatest judge in the post independence era. No trip to Jabalpur was ever complete without paying respect to him. Yet, he was not elevated: it is said that he did not believe in making trips to Delhi.

The court of Appeal will have the same problems and will further deteriorate the status of the High Courts. It will not reduce the pendency but rather worsen it. This will also further delay the disposal of a case by adding one more tier.  The correct thing is to improve the present system. 

Broadly, the judgements of the High Courts are as bad or as good as the judgements of the Supreme Court. After all, it is from there that the judges are elevated to the Supreme Court; except that sometime their judgement are shorter: the reason is that almost all High Courts are under greater pressure to perform than the Supreme Court. They normally work under half of their strength and often not with the best minds available: a self inflicted wound, because of the Collegium system. 

The first step is to fill up the vacancies in the High Courts by the competent persons. Apart from other suggestions of improving the process of appointments of judges, the most important factor is to make the retirement age of High Court and the Supreme Court judges equal. A three year extension of service at the national level taints the recommendation by the High Court collegium. In case, the retirement age is made equal, this will be obviated.

The post retirement appointments also act as a stumbling stock. Sixty-two or Sixty-five is no age for retirement for the judges. Their retirement age should be increased to 68 or 70 years and post retirements appointments be stopped. 

Many statutes provide direct appeal to the Supreme Court from the decisions of the tribunals created under them. This does not exclude the jurisdiction of the High Court under Article 226/ 227 but normally the petitions are not filed before the High Court but are directly filed in the Supreme Court. This adds to the pendency before the Supreme Court. These provisions should be abolished. 

The High Court may be bifurcated into two divisions: the appellate and non-appellate division. Senior Judges may sit in the appellate division. They may hear appeals from the decisions of the tribunals or against the order of a single judge, where the appeal lies. The appeal may lie only on the question of jurisdiction or substantial question of law.  

Oral hearing of the SLPs before the Supreme Court should be abolished and a pattern similar to the US Supreme Courts may be adopted. The SLPs involving constitutional or other questions may be considered by five or three judges in the chamber. The notice may be issued if three or two of them agree to admit it. There are  long holidays; there is no justification for them: they may be utilised for considering the SLPs. This will give two more days in a week for hearings.

There is no necessity of National Court of Appeal, it will add to delay and further erode the prestige of the High courts. It  should be dropped liked a hot potato: it would be nothing except be another happy hunting ground for the lawyers.

In my fourth post 'Introduction to Setalvad', I had mentioned that we will talk about autobiographies as well as biographies of person connected with law. In the next few posts, we will do the same.

#YatindraSingh #CourtOfAppeal

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