An NCA for backlog-hit judiciary

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An NCA for backlog-hit judiciary

Thursday, 27 December 2018 | Raghav pandey & Neelabh Bist

An NCA for backlog-hit judiciary

Now that CJI Gogoi has undertaken the task of appointing judges to various courts, the next step should be the establishment of a Court of Appeal that can help reduce the judiciary’s problems

The recent expeditious filling up of judicial vacancies, right from the position of the judicial magistrate to that of a Supreme Court judge, speaks volumes about the monumental task undertaken by the Chief Justice of India (CJI), Justice Ranjan Gogoi, to reduce  pendency of cases at various Indian courts.

Justice Gogoi seems to be resolute in doing the same as he has already held myriad collegium meetings for the filling up of vacancies.  Thereafter, he made appointments of judges to different High Courts and the Supreme Court. As far as the lower judiciary is concerned, Gogoi passed many orders, wherein he asked the High Courts to fill all vacancies in a time-bound manner.

However, the filling up of vacancies in the judiciary may just be one way of managing the bewildering problem of pendency of cases. The chorus for the establishment of the National Court of Appeal (NCA) has once again gained momentum with several academicians making demands for its establishment. They believe a Court of Appeal can stem the burgeoning pendency of cases. Their argument is that the NCA would not just help annihilate the problem of pendency but would also help resolve multiple issues that plague the country’s legal system.

Initially, the Supreme Court of India was entrusted upon the primary responsibility of interpreting ambiguities in various laws and the Constitution that may arise from time to time. However, with the passage of time, the top court skewed away from that responsibility and shifted its focus on dealing with appeals arising from the decision of the High Courts.

The Law Commission of India, in its 125th report, highlighted that the disposal and establishment of Constitutional Benches has declined from 15.5 per cent in 1950-54 to 0.12 per cent in 2005-2009. Thus, the growing need of finding an alternative to disposing the appeals was felt by the apex court so that the sanctity of the court as a Constitutional entity could be restored.

The proposed NCA was supposed to be an adjudicating body that would deal with all types of matters, except those relating to the Constitution or public importance, which would ordinarily fall under the domain of the Supreme Court. The NCA will, thus, act as an intermediary between the High Courts and the Supreme Court with regional Benches in Delhi, Chennai, Mumbai and Kolkata. The NCA would also act as the last appellate court from where no appeal would lie with the Supreme Court.

The idea of the establishment of the NCA in different parts of the country can be dated back to the time of the formulation of the Constitution when Jaspat Roy Kapoor suggested the same. Despite being seconded by BR Ambedkar, the NCA could never find its way into the Constitution. Later, the 95th, 125th and the 229th report of the Law Commission also dealt with the issue of NCA but to no avail. Interestingly, the Supreme Court, too, has had its fair share of comments about the NCA.

In the case of Bihar Legal Support Society vs The Chief Justice of India, the court proposed the formation of the NCA with four different regional branches. In 2016, the apex court ordered for the formulation of a

Constitutional Bench to decide on the viability of the NCA in view of the pendency of cases in the country.

People, who supported the establishment of the NCA, attributed multiple reasons for the same. Apart from the argument of pendency and the recreation of the Supreme Court as the Constitutional court, a major block in the litigant’s path of seeking justice is the cost of litigation. From the commencement of the suit in the district court to its final disposal in the Supreme Court, the path that a litigant walks on, is filled with various applications, adjournments, inter-court appeals, et al.

Added to this is the burden of travelling from one part of the country to the other. Nick Robinson in his report, ‘Interpreting the Constitution: Supreme Court Constitution Benches since Independence’ showed that appeals to the Supreme Court are made by litigants belonging to nearby areas. This issue can be readily resolved by the setting up of four regional NCAs in four corners of the nation.

Although the idea of NCA might appear to be very appealing, however, to guarantee its effectiveness, several steps need to be taken. First, the very practice of filing frivolous appeals will have to be discouraged. This can be accomplished if heavy penalties are imposed on the litigants, who waste the court’s time. But history is a proof that this solution has not been successful.

Despite the apex court laying down guidelines for the filing of Public Interest Litigation (PIL) in State of Uttaranchal vs Balwant Singh Chaufal, the practice of filing frivolous PILs is far from over yet. For the working of the NCA in the most efficient form, strict adherence to various guidelines will have to be ensured, otherwise the body would act just as another additional step before the Supreme Court of India.

Another important aspect to be looked at before the formulation of the NCA will be the rules surrounding the appointment of judges. The hierarchy of judges, their transfer and subsequent elevation are all questions that have to be firmly resolved before the NCA can be set up. Attorney General KK Venugopal had earlier suggested that for the smooth functioning of the NCA, the age of the judges should be increased from 65 years to 70 years. This suggestion must be taken seriously because usually, the years of experience of judges come to a stop at the age of 62 or 65, without proper exhaustion of their mental faculties. For this reason (in addition to that of transparency), in the US, there is no retirement age for the judges. They hold their offices till their voluntary retirement or death.

It has been reported that in India, one judge handles over 1,800 cases. This not only results in the improper and untimely dispensation of justice, but also staggers the speed of development of the Constitutional jurisprudence in the country. The setting up of the NCA would allow ample time for the adjudication of the rights of disputing parties as well as for the development of law in the Supreme Court.

It is worthy to note that if the idea of NCA does conceptualise, India would not be the first country in the world to have introduced it. Colombia, Australia, the United States, France, Germany, Iran, Italy, Russia, South Africa and many other countries already have in place such an adjudicatory body. Thus, it can be optimistically presumed that the conception of NCA will help reduce the problems which have plagued our judicial system for centuries.

(Raghav Pandey is an Assistant Professor of Law at Maharashtra National Law University, Mumbai and Neelabh Bist is a Fourth Year student of Law at Maharashtra National Law University, Mumbai)

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