The Supreme Court recently admitted an SLP (Special Leave Petition) under Article 136 of the Constitution on the setting up of a National Court of Appeal (NCA) with regional benches which will act as final courts of appeal in civil, criminal, revenue and labour matters <Can you tell us, what is SLP in comments>.

In 1987, in the case of Bihar Legal Support Society v. the Chief Justice of India, the proposal to set up the National Court of Appeal was mooted and welcome by the then Chief Justice P N Bhagwati. The current petition by Chennai based lawyer has once, again brought the issue to the fore.

The Supreme Court will set up a Constitution Bench to decide on the proposed NCA as primarily, it raises the following question related to the interpretation of the Constitution Answer in comments>.

As of now, the Supreme Court is the final court of appeal in all cases. With the NCA, the role of the Apex Court would be restricted to hearing only constitutional and public law cases. Would this amount to tinkering with the ‘basic structure’ of the Constitution?

REASONS WHY NCA COULD BE A WELCOME PROPOSITION?

Given the never-ending and ever –increasing case-load on the Apex Court, the NCA could be a welcome change on the following grounds:
(a) Clearing the massive backlog: With the huge pendency of cases in all three levels of Judiciary, the National Court of Appeal with its regional benches may prove to be crucial in clearing the massive backlog of cases. About 98% of the Apex Court’s time is wasted on routine matters like bail pleas, dishonor of cheques, traffic violations, correcting errors in HC judgments.

With the NCA hearing matters pertaining to civil, criminal, labour and revenue laws, Supreme Court would be able to concentrate on the more important public law concerns.

(b) Restoring the Apex position of the Apex Court: With the Supreme Court getting an opportunity to hear exclusively on constitutional and public law matters, its position as the final arbiter on constitutional cases and on developing the law will be further strengthened.

This is in tune with the scenario in England, UK and Wales where the Supreme Court only rules on matters of constitutional importance or sets a new legal precedent.

(c) Greater access to justice: Access to justice is a fundamental right for all under the Indian Constitution. In the Indian scenario, this is proportionate to the distance from Supreme Court. As per a recent survey, majority of cases come from northern states like 14% from Delhi High Court in comparison to southern states like only 2.5% of cases from Kerala High Court and even fewer from North-eastern States. Setting up NCA with regional benches will help in reducing travelling expenses, with a better cost-benefit ratio.

WHY SHOULD THE STATUS QUO BE MAINTAINED?

The Centre has been challenging the move to set up the NCA on the following grounds:

(a) Dilution of the powers of Apex Court: Currently, many citizens resort to Article 136 of the Constitution in any sort of matter. With the subject matter of disputes being divided amongst NCA and the Supreme Court, Supreme Court’s exclusive power to entertain appeals under Article 136 will be significantly diluted.

(b) Compromise the unified structure of the Judiciary: Currently, there is one Apex Court with the High Court in states followed by subordinate courts. This integrated structure will suffer a backseat with NCA somewhere in the middle between High Courts and Supreme Court Answer in comments>.

Moreover, earlier proposals to set up Regional Benches of the Supreme Court with one bench in each region have been rejected by the Supreme Court on the ground that it will affect the unitary character of the Judiciary and that there can be only one Supreme Court.

For providing greater access to citizens from far-flung areas, it has been proposed that there could be dedicated courtrooms with video conferencing facilities for litigants and lawyers from far-flung areas. This will avoid the need of setting up regional benches and even NCA to a great extent.

(c) Large-scale Constitutional amendments required: For bringing the NCA into existence, several provisions of the Constitution related to independence of Judiciary, hierarchy of Courts, powers of Supreme Court etc. will have to be amended. Moreover, Article 136 of the Constitution is a part of the basic structure and in view of the decision in Keshvananda Bharati case, limiting the powers of Supreme Court through NCA will be extremely difficult.

The solution does not lie with creating courts of appeal because it would not bring down litigation. The Supreme Court has to exercise restraint on the manner of interference under its constitutional power. Today people take chances and come to Supreme Court on every issue, including challenging an adjournment order – Attorney General

Law Commission Recommendation 

  • Law Commission in its 229th report submitted to the government in 2009 recommended setting up of four regional benches at Delhi, Chennai/Hyderabad, Kolkata and Mumbai to deal with appeals arising out of high courts. Earlier 125th report had recommended setting up of NCA Answer in comments>.
  • It said, if necessary Article 130 may be amended to implement its suggestion that Cassation Benches may be set up in four regions, while the Constitution Bench sits in Delhi . < Is Law commission a constitutional or statutory or executive body? Answer in comments>

But the Supreme Court rejected it in 2010, saying dividing the Supreme Court would affect the country’s unitary character. A Full Court comprising all SC judges reiterated its earlier resolutions passed in 1999, 2001, 2004 and 2006 in this regard.

CONCLUSION: The burgeoning backlog of cases plaguing all the three levels of judiciary demand more resources and institutional reforms to deal with the problem. However, any proposals to set up institutions like the NCA will require Constitutional amendments and major Legislative will to go through. This at present is not forthcoming. 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. The next hearing for the matter is slated up for April 4.


P.S. This article is published with inputs from a CD user  Joyousjojo (name changed on request).

P.P.S. If you want to write explainers for CD, mail us your explainer at hello@civilsadily.com

Any doubts?


  1. A long pending timely need facilitating the hapless in all corners of this Country and for quick justice. Mr.Vasanthakumar has paved the way with the active support of present CJI Thakur and his companion judges. It is really wonderful to see that Supreme Court really felt rationally by appointing the Amicus curies. My best wishes to Mr.Vasantha Kumar.

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    law commision is a executive body constituted by government from time to time

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    constitution bench meaning
    Constitution bench is the name given to the benches of the Supreme Court of India which consist of at least five judges of the court which sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution of India.

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      this provision has been mandated by Article 145 (3) of the Constitution of India. The Chief Justice of India has the power to constitute a Constitution Bench and refer cases to it.

      Constitution benches have decided many of India’s best-known and most important Supreme Court cases, such as A.K. Gopalan v. State of Madras, Kesavananda Bharati v. State of Kerala (basic structure doctrine) and Ashoka Kumar Thakur v. Union of India (OBC reservations) etc

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    SLP Meaning
    Special leave petition means that you take special permission to be heard in appeal against any High Court/tribunal verdict.

    Usually any issue decided by the State High Court is considered as final, but if there exist any constitutional issue or legal issue which can only be clarified by the Supreme Court of India then, this leave is granted by the Supreme Court & this is heard as a Civil or Criminal appeal as the case may be.

    Going to the Supreme Court in appeal should not be considered a matter of right by any one but it is matter of privilege which only the Supreme Court will grant to any individual if there exist an important constitutional or legal issue involved in any case that was not properly interpreted by the concerned High Court against whose judgment you approach the Highest court of the country not otherwise..

SC thwarted in its constitutional objective- II

  1. The SC verdict refers to a speech by sitting Supreme Court judge, Justice J. Chelameswar, in 2014 about the decline in the stature of a Supreme Court inundated by routine appeals
  2. HC certificate: Parties ignore the fact that a certificate of the High Court is required to appeal to the Supreme Court
  3. Exception is the rule: Only in exceptional circumstances would the Supreme Court admit a case without the High Court’s certificate but the exception has become the rule now
  4. Result: More and more unsuccessful people are encouraged to have another go at it by approaching the Supreme Court

SC thwarted in its constitutional objective- I

  1. SC: The rush of humdrum commercial and private appeals had thwarted the Supreme Court’s constitutional objective to hear matters of only national and public interest
  2. Strength: Even an increase in the sanctioned strength of Supreme Court judges to 31 has not helped because they are busy hearing routine cases at the cost of pending constitutional matters
  3. Post 1990s phenomena: The judgment endorsed former Solicitor-General T.R. Andhyarujina’s view that the Supreme Court started losing its character after 1990, when it began entertaining cases of all kinds
  4. Context: SC is hearing a petition for setting up National Courts of Appeal with regional benches to hear civil and criminal appeals

Govt. cautions judiciary on NCA

  1. Context: Issue on setting up of National Court of Appeal
  2. Attorney General: NCA will add one more level of adjudication
  3. It will not help to decrease litigation
  4. It will mean more expense and hardship to the litigant
  5. Article 136: Power provided under this should be invoked only in exceptional cases
  6. Bifurcation of juriciary through NCA is a constitutional

Legal system too expensive for most Indians: Survey

  1. Context: The nationwide Access to Justice survey by DAKSH, a civil society organisation
  2. Cost: 90% of the litigants in the country earn less than Rs. 3 lakh a year and the median expected cost of litigation for them is around Rs. 16,000
  3. Legal aid:  Though it aims to provide free legal services to the poor, just 1% of the respondents were making use of this service
  4. Accountability of legal aid lawyers towards their clients and lack of communication between the two are serious concerns plaguing the system
  5. Finance: The main reason individuals could not meet the conditions of bail was found to be lack of funds

Supreme Court located too far North for litigants from South

  1. Context: Constitutional Bench hearing on the issue of establishing National Courts of Appeal
  2. Amicus curie argument: The Supreme Court is situated in the far North in Delhi
    Litigants from the southern States find it unduly long and expensive to come here in search of justice
  3. CJI Thakur: Isn’t access to justice a fundamental right for all? Does this mean access to justice has become an illusion for people of Kerala and Tamil Nadu?
  4. The Centre had no suggestions to offer yet, on the issue

Learn about National Court of Appeal

  1. Basics: A National Court of Appeal is meant to act as final courts of justice in dealing with appeals from decisions of the HCs and tribunals within their region in civil, criminal, labour and revenue matters
  2. The National Court of Appeal will have benches in Chennai, Mumbai and Kolkata
  3. The SC would only hear matters of Constitutional law and Public law

SC to set up Constitution Bench to debate formation of National Court of Appeal

  1. Context: A Chennai lawyer had filed a petition for setting up a National Court of Appeal
  2. News: The Supreme Court decided to set up a 5-judge Constitution Bench to debate the establishment of a National Court of Appeal
  3. Attorney General expressed that it was not possible or desirable to have a National Court of Appeal


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