The justice delivery system in India is a pyramidal structure with the Supreme Court at the top under the Constitution of India. The Constitution contains elaborate provisions for establishment, its jurisdictions, appointments of judges, powers and privileges of judges, limitations and other aspects of Supreme Court¹, High Courts² and Subordinate Judiciary³. Besides this, the Supreme Court of India has declared writ jurisdiction under Article 32, 226 & 227 of the Constitution as Basic Feature of Indian Constitution which could not be abrogated or tinkered with. Further, the original jurisdiction under Article 131 of the Constitution of India, by implication and for obvious reasons nevertheless, it has not been declared so.
For last few decades, it has been suggested by various quarters that there is a need to create an appellate court (either Regional court of Appeals or National Court of Appeals) so as the justice delivery system is more accessible and backlog of cases could be reduced. However, the creation of an Appellate Court would require amendment of Chapter IV and Chapter V of the Constitution. According to Article 368 of the Constitution, an amendment of these chapters can only be achieved when the Bill is passed in each House by a majority of the total membership of the House present and voting and also ratified by not less than one half of the states. Further, such amendment bills, once passed, has to pass the test of the ‘Basic Feature of the Constitution’ and must ensure that the same is not disturbed.
There is no doubt that the creation of Regional Court of Appeals or National Court of Appeals would make the access to justice delivery system more pragmatic but, there is no certainty that it would reduce the backlog at lower judiciary level (subordinate courts as well as High Courts) and at the Supreme Court. The Supreme Court of India would continue to remain as apex court of appeal under Constitution of India even after creation of such courts of appeals. The creation of such appellate forums would add another layer to the existing system and may fall short of achieving the desired goal.
As the major backlog or pendency is at the level of High Court, it is therefore suggested that the High Court judges be allowed to continue (under Article 224-A) in service till the age of 65. When they turn62, the presiding judges can be given an option to extend their tenure. If so, they may be allocated pending cases and be given the sole responsibility of adjudicating these disputes without any administrative role. A prescribed target of disposal may be given to each such judge, subject to examination and revision every year. This would not require a creation of a separate institution and the existing infrastructure and resources can be utilized to tackle the challenge of pendency in courts.
It is suggested that before setting up a new appellate body, existing infrastructure be explored to reduce pendency of cases. One important step in this direction is formulating a national litigation policy that reduces government’s involvement in prolonged litigation. Attempts are being been made by the government to formulate a comprehensive national litigation policy that aims at reducing government litigation in the courts. Since government is the biggest litigant in this country, measures to reduce government involvement in judicial disputes would allow the courts to focus on disputes between private parties.
Another important fact needs to be noted is of ‘existing judicial vacancy’ at High Court level and subordinate judiciary. More than 4,000 vacancies are existing in subordinate judiciary and above 400 vacancies in High Courts. The need of hour is to have the existing judicial system (at all levels) to work in its full strength to address the backlog and pendency of cases. The courts must work in all adverse circumstances and inculcate an innate culture with the help of respective bar that there is no absenteeism or boycott, minimum request for adjournment and speedy disposal of the cases.
It was opined by the Supreme court in Arunachalam v. P.S.R. Sadanatham, that the discretionary power under Article 136 must be invoked by the Court in exceptional circumstances as when a question of law of general public importance arises or a decision sought to be impugned before this court shocks its conscience. Restrain must be exercised while admitting cases under Article 136. The Supreme Court can frame rules regarding instances when cases can be admitted under this article. Admitting appeal only through High Court certificate maybe made the rule and Article 136 may be invoked for exceptional circumstances.
Changing the present appellate structure would require a detailed research and a comprehensive analysis of the Constitutional limitations. Any amendment must confirm to the basic structure of the Constitution. Before revamping an institution, it is important that the pros and cons of suggested changes are fully analyzed.
1. See Article 124 to 146 of the Constitution of India
2. See Article 214 to 232 of the Constitution of India
3. See Article 233 to 235 of the Constitution of India
(Prof. (Dr.) S. Sivakumar, is a member, Law Commission of India. The views expressed herein are strictly personal)
