Will National Court of Appeal increase arrears, “lower status” of High Courts? [Read Central government’s concerns]

Pursuant to the directions of the Supreme Court, the Central government has framed preliminary issues for consideration with respect to establishing a National Court of Appeal (NCOA)..And from a perusal of these issues, the Centre’s position is quite clear. First and foremost, the Centre’s take is that establishing an NCOA is a “matter of policy”. Whether the Supreme Court can therefore entertain the petition at all, is what the Centre seeks to challenge..Furthermore, the establishment of an NCOA would require a Constitutional amendment. Hence, can the Supreme Court issue a mandamus in this regard, more so when in exercise of PIL jurisdiction..Apart from the legal questions though, what is perhaps more interesting is the Centre’s concerns that the NCOA may end up defeating the very object sought to be achieved by it. For instance, some of the issues framed question the effect NCOA is going to have on speedy disposal of cases, multiplicity of appeals, and finality of litigation..The following questions have been raised by the Centre in this regard:.Whether, in view of enormous backlog of cases pending in the higher courts of the country, the creation of an additional tier of a higher appellate court would not only serve to prolong the life cycle of a case thereby defeating the right to speedy, efficient and affordable justice under Article 21 of the Constitution of India?.Whether the creation of an additional tier of the judiciary would only serve to compound multiplicity of appeals and generate more arrears and uncertainty of judicial outcome?.Whether the creation of an additional court of appeal would not be violative of the right to finality of litigation within a reasonable time frame which is inherent in the right to speedy justice under Article 21 of the Constitution of India?.The Centre will also be raising issues regarding the effect NCOA would have on the status, dignity and morale of High Courts..The manner in which Article 136 jurisdiction is currently being exercised by the Supreme Court have also found a place in the Centre’s preliminary draft..The following are the preliminary issues which the Centre has framed in the matter:.Whether the doctrine of separation of powers would constitute a restraint on the this Hon’ble Court’s jurisdiction to entertain matters of policy pertaining to the setting up of a National Court of Appeal with regional benches?Whether the proposal to set up a National Court of Appeal would not require a constitutional amendment?Whether matters of importance requiring a constitutional amendment should not be left to the exclusive domain of the Parliament?Whether this Hon’ble Court, in exercise of its PIL jurisdiction, ought to issue a mandamus directing the creation of an new tier of higher courts?Whether, in view of the Hon’ble High Court of Madras having dismissed a similar plea under Article 226 by the same petitioner, res judicata or principles analogous thereto would be squarely applicable and constitute a restraint on this Hon’ble Court entertaining the present PIL seeking the setting up of a National Court of Appeal?Whether, in view of enormous backlog of cases pending in the higher courts of the country, the creation of an additional tier of a higher appellate court would not only serve to prolong the life cycle of a case thereby defeating the right to speedy, efficient and affordable justice under Article 21 of the Constitution of India?Whether the creation of an additional tier of the judiciary would only serve to compound multiplicity of appeals and generate more arrears and uncertainty of judicial outcome?Whether the creation of an additional court of appeal would not be violative of the right to finality of litigation within a reasonable time frame which is inherent in the right to speedy justice under Article 21 of the Constitution of India?Whether the creation of an additional tier of the judiciary between the High Courts and the Supreme Court will not serve to lower the status, dignity and morale of the High Courts?Whether the introduction of a National Court of Appeal will affectively discourage litigants from approaching this Hon’ble Court under Article 136 or will merely constitute an additional recourse in the judicial process for such litigants who can afford to take their chances before a higher court?Whether, in view of the position that Article 136 of the Constitution of India is inalienable, the introduction of a National Court of Appeal will achieve the desired objective of reducing the burden of this Hon’ble Court and enabling it to decide largely matters of constitutional importance?Whether the flood of litigations in the Apex Court cannot be more effectively restricted by applying the well-settled principles relating to manner of exercise of discretionary powers under Article 136 of the Constitution?Whether, in view of Mathai v Geroge [SLP(C) no. 7105 of 2010, decided on 16.01.2016], it is already well-settled the discretion under Article 136 ought to be applied extremely sparingly and with circumspection?Whether matters relating to arrears, efficiency and speed in the delivery of justice, etc. are matters of complexity requiring a performance audit of the entire justice delivery system with holistic solutions, rather than an ad hoc solution of setting up of a National Court of Appeal, which may in fact exacerbate the problem than solving the same?Whether the difficulties experienced by litigants based in relatively distant locations from the Supreme Court in approaching the highest court could not be resolved by effective use of information and communication technology by e-filing, video conferencing, etc., on the one hand to benefit such distantly located litigants, and on the other, by judicious exercise of discretion in entertaining frivolous appeals by litigants who may be better placed to approach the Supreme Court?.These issues have not yet been finalised, with Attorney General Mukul Rohatgi seeking some more time when the matter came up for hearing yesterday. The case will now be taken up on April 25.