When the Supreme Court (SC) of India came into existence in January 1950, it comprised eight judges – a Chief Justice and seven puisne judges – as envisaged by the original Constitution of India. Parliament was vested with the authority to increase the number of judges. In the initial period, all the judges adjudicated the cases together. With the increase in workload and the accumulation of arrear cases, Parliament increased the number of judges in 1956, 1960, 1978, 1986 and 2009; the higher strength allowed the setting up of smaller benches of 2-3 justices each to hear more cases. In 2019, the SC's strength was increased to 34, the highest ever number.

While the apex court's strength increased gradually over the decades, there was an exponential increase in the backlog of cases pending before it. What became a matter of greater concern was the fact that routine appeals began comprising a higher proportion of the SC's workload compared to core Constitutional matters. Independent analyses in the past have substantiated these concerns. In 2014, for instance, various benches of the SC delivered 888 final judgments. Of these, 64 judgments were those that dealt with a Constitutional matter, and even out of these, only 14 were delivered by a five-judge bench.

Over the decades, various solutions have been proposed to clear the huge backlog of cases across the entire judicial system but more specifically at the level of the SC. That is principally because the character of the apex court seems to have transformed from a Constitutional authority to that of an appellate Court.

The SC has, in the past, taken cognizance of this concern. In Mathai @ Joby vs George & Anr (2010), Justices Markandey Katju and R.M. Lodha were of the prima facie opinion that "special leave petitions should not be entertained by this Court." The judges also lamented that "the arrears in this Court are mounting and mounting and this Court has been converted practically into an ordinary appellate Court which, in our opinion, was never the intention of Article 136 of the Constitution."

However, in a subsequent (2016) judgment regarding the same case, a five-judge Constitution Bench observed that "no effort should be made to restrict the powers of this Court under Article 136." The bench also expressed its view that in the interest of justice, "it would be better to use the said power with circumspection, rather than to limit the power forever." While the SC's appellate jurisdiction continues to be a conflicting matter even among its own benches, one fact is clear – the Court is overwhelmed with a significantly high workload comprising fresh as well as backlog cases.

By the powers conferred on it by the Constitution, the SC can interfere in any judicial proceedings, whether it pertains to a Constitutional matter or an appeal against an order – civil or criminal – passed by a subordinate court. In major countries globally, however, apex courts restrict their hearings to a limited number of cases. They rarely hear cases related to civil or criminal matters. In India, such a wide jurisdiction has resulted in a significant backlog of cases at the apex court's level.

The idea of a National Court of Appeal – an intermediary court between the High Courts and the SC – has been mooted repeatedly over the last few decades. The proposal is not without controversy. While supporters consider that it will relieve the SC of routine or appeal cases, critics contend that such a proposal is unconstitutional and untenable.

In April 2016, during a PIL hearing by a SC bench headed by Chief Justice T.S. Thakur, then Attorney General Mukul Rohatgi rejected the notion of a court of appeal. With two crore cases pending in lower courts compared to fifty thousand cases with the SC, he emphasized the problem lay at the level of the lower courts and not the SC. He also argued that setting up a court of appeal would only add to "lawyers' pockets." Subsequently, the central government rejected the proposal on the ground that Article 130 of the Constitution would need to be amended which was "impermissible as this would change the constitution of the Supreme Court completely."

In November 2020, Attorney General K.K. Venugopal – who succeeded Rohatgi – recommended the establishment of a National Court of Appeal to adjudicate on appeals from lower courts. This would let the SC function as a Constitutional court to deal with matters of national importance, fundamental rights and issues involving a substantial question of law. Venugopal conceded that a Constitutional amendment would be required to bring this into effect. In the past, various Law Commissions as well as specific SC benches have supported the setting up of a National Court of Appeal with regional benches.

Interestingly, the Congress had, in its 2019 manifesto, promised several measures related to judicial reforms. Among them, two were notable:

  • Introduction of a Constitution Amendment Bill to make the SC a "Constitutional Court" that would adjudicate on matters requiring interpretation of the Constitution, or on matters which were legally significant or pertaining to national importance
  • Introduction of a Constitution Amendment Bill to establish a Court of Appeal as an intermediate court between the High Courts and the SC to hear appeals arising out of judgments delivered by High Courts. The court of appeal would comprise six regional benches of three judges each.

Establishing a National Court of Appeal with regional benches is a much-needed judicial reform. During the Covid-19 lockdown, the SC showed that it can adapt quickly in a crisis. The backlog of cases is a crisis of enormous proportions, and the time has come to take decisive action.

There is no denying the fact that the entire judicial system is strained with the burden of over three crore pending cases. One of school of thought is that attention should be paid to subordinate courts so that they are better equipped to dispense speedy and effective justice. Proponents of this view argue that doing this will result in a substantial reduction in the need to approach the SC. This suggestion suffers from a practical flaw: with the current structure of the judicial system, it will take several decades, if not a century, to clear the current backlog of cases. The SC will continue being the final Court of appeal, and its role as a Constitutional Court will be further diluted.

A major concern is that an amendment of Article 130 of the Constitution will amount to a change in the basic constitutional framework of the Supreme Court itself. The Law Commission, in Report No. 229, had noted, "If Article 130 is liberally interpreted, no constitutional amendment may be required for the purpose of setting up of cassation benches in four regions and a Constitution Bench at Delhi. Action by the chief justice of India with the president's approval may be enough." The Law Commission had also clarified that "in case this liberal interpretation of Article 130 is not feasible, suitable legislation/constitutional amendment may be enacted to do the needful."

There is another concern that setting up regional benches of the SC would dilute the apex court's authority. This also need to be allayed. If regional benches are indeed set up, they would only have a functional role in as far as appeals from High Courts are concerned. All Constitutional and national importance matters would continue to be dealt with by the bench in Delhi. Even a bare reading of Article 130 will make it evident that the framers of the Constitution did not restrict the geographical ambit of the SC to Delhi only. Regional benches will go a long way in removing logistical and financial challenges of petitioners from distant locations.

If established, the National Court of Appeal will not be unique to India. On 28 October 2014, Ireland established a new Court of Appeal (CoA) following a referendum held on 4 October 2013. Its main function was to hear appeals – both Civil and Criminal – from the High Court and the Circuit Court. The CoA would hear the vast majority of appeals which were formerly heard by the Supreme Court. In South Africa, the Supreme Court of Appeals (SCA) succeeded the Appellate Division (AD) in 1996; the SCA is second only to the Constitutional Court. In England and Wales, the Court of Appeals is the highest court below the Supreme Court of the United Kingdom.

The Covid-19 pandemic and lockdown has shown that courts can adapt quickly in case of a crisis to ensure that there is no delay in the dispensation of justice. In the same manner, the SC and central government must view the current state of the judiciary as a crisis of enormous proportions and take the much-needed step of establishing a National Court of Appeal with regional benches. As far as regular matters are concerned, the SC should step in only when a case involves a substantial question of law or violates citizens' fundamental rights. Doing so will be the true essence of its 'supreme' role as the upholder of the Constitution of India.

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