Read Editorial With D2G – Ep XCI

In Read Editorial With D2G
February 29, 2016

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EPISODE – XCI
TOPIC: Reworking the Supreme Court’s role
BLOG: The Hindu
TOPIC: Politics
GENRE: Opinion

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By admitting a Special Leave Petition that seeks the setting up of a ‘National Court of Appeal’ to hear routine appeals in civil and criminal matters from the High Courts, the Supreme Court has signalled its willingness to grapple (wrestles) with a question that has been raised unsuccessfully in the past. The question is whether the apex court should be burdened with the responsibilty of examining the correctness of every case decided by the High Courts, and whether it should not be allowed to devote its time entirely to settling questions of constitutional importance. The underlying issues may include the accumulating backlog (A backlog is a number of things which have not yet been done but which need to be done) of cases in the Supreme Court, and the need to separate pending cases into those that touch upon constitutional questions and other routine matters. Constitutional questions may refer to the validity of a statute (A statute is a rule or law which has been made by a government or other organization and formally written down) or a rule, or to issues that require interpretation of the Constitution. A third concern relates the oft-cited (Oft- combines with past participles to form adjectives that mean that something happens or is done often) difficulties of litigants (A litigant is a person who is involved in a civil legal case, either because they are making a formal complaint about someone, or because a complaint is being made about them) from different parts of the country for whom New Delhi may be too far. The solutions put forward include dividing the Supreme Court into a ‘Constitutional Division’ and a ‘Legal Division’; having the principal Constitution Bench in Delhi and creating four regional Benches to hear appeals on High Court orders; and, third, creating a National Court of Appeal that will have four ‘Cassation Benches’ (A court of cassation is a high instance court that exists in some judicial system) for the adjudication of non-constitutional matters.

According to the Union Law Ministry, which recently rejected a lawyer’s demand for a National Court of Appeal, successive Chief Justices of India have been against the establishment of Benches outside Delhi. Further, it has obtained legal opinion that a Constitution amendment to revisit the Supreme Court’s role would be impermissible as it would change the court’s character under the Constitution. The opinion appears to disfavour a suggestion by the Law Commission in its 229th Report (2009) that if necessary Article 130 (“The Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint”) may be amended to implement its suggestion that Cassation Benches may be set up in four regions, while the Constitution Bench sits in Delhi. Courts of Cassation are courts of last resort to reverse decisions of lower courts. A key issue to be settled is whether it will be advisable for the highest court to share with a possibly inferior court of appeal its power under Article 136 to grant special leave to appeal on High Court orders. Also, in recent times the Supreme Court has been conscious of its role as the interpreter of the Constitution, and holds a sitting of a Constitution Bench virtually every day. Even within the present structure, regional Benches may help address the problem of access to justice but not that of accumulation of cases. The idea of a National Court of Appeal requires consideration, but in a manner that would not undermine the undoubted authority of the Supreme Court of India.

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