Constitutional Law

Beyond ‘Jugaad’: A Proposal for a National Court(s) of Appeal (Part I)

Harsh Tiwari

In order to achieve a reduction in the pendency of cases and a return to the Supreme Court’s original role as a final appellate court, a national court(s) of appeal is the need of the hour.


It is now a well-known fact that India’s judicial system is so hopelessly broken that disposing of the current backlog of 33 million cases is bound to take at least 300 years. The magnitude of the problem can obviously be reduced with some simple solutions. For starters, we can ensure that India’s numerous courts are not chronically understaffed and that all courts function at the sanctioned strength of judges, thus fulfilling a ‘dream’ that has been distant for decades (See the Law Commission’s 125th Report dated May 11, 1988, para 1.11).

Another solution could be a comprehensive overhaul of the appeals procedure, which, at present, seriously burdens the higher courts with excessive amounts of work. But that, in itself, can be subject to multiple criticisms. Chiefly, a proposal to streamline the number of appeals may only worsen the already shambolic delivery of justice in lower courts. Because, even if a lax appeals procedure puts some frivolous cases in front of courts that have bigger fish to fry, it prevents wholesale miscarriage of justice with the Supreme Court playing the role ‘big brother’ to the High Courts.

The fact of the matter is that a real systemic solution is needed if India’s third pillar of democracy is to achieve the heights it was meant to achieve. These two essays discuss the creation of national courts of appeal, much like the Court of Appeal in England. And this first essay argues that a solution to both the backlog of cases and the inefficient delivery of justice lies in a court or courts of appeal. The second essay shall discuss the Constitutional justifications for these courts of appeal.

The idea of a national court of appeal(s) had been put forth by a Constitutional Bench of the Supreme Court way back in 1987 in the Bihar Legal Society case (see below). Most recently, the proposal for national courts of appeal gained renewed traction when a high-level meeting of bureaucrats and Supreme Court judges responded favourably to the idea in 2017. This came a year after a three-judge bench of the Supreme Court had itself mulled over the idea, referring the matter to a Constitutional Bench of the Court for consideration. At that time, Mr. Mukul Rohatgi, who was then the Attorney-General, opposed the idea as unfeasible (see para 19 of the order below), while amicus counsel Mr. K.K. Venugopal argued vehemently in favour of the proposal (see paras 15-17 of the order below). However, with the retirement of Mr. Rohatgi as Attorney-General and with the elevation of Mr. Venugopal to that post, executive appetite for this reform, as of now, is certainly present.

As far as judicial attitudes are concerned, the Supreme Court’s 2016 order in V. Vasantha Kumar v. H.C. Bhatia & Ors. referring the matter to a Constitutional Bench says it all. The order, by referring to the Supreme Court’s earlier decisions, Law Commission reports and other literature, very correctly points out that the Court has been severely burdened by both a burgeoning number of cases and by its extensive willingness to function as an ordinary appeals court, instead of being a constitutional one. While, of course, the Court still refers the matter to a Constitutional Bench, it leaves no room for doubt as to its preferences. At para 21 of the order, it bluntly declares: “the pronouncements of this court sounding notes of caution against a liberal grant of special leave to appeal or exercise of restraint in the matter of entertaining cases have led to no meaningful improvement in the situation at all.”(e.a.)

At this point, it must be clarified that the proposal chiefly considered by the Supreme Court in its 2016 order is concerned with setting up appeals courts for different regions of the country. In contrast, the proposal considered by the meeting of judges and officials in 2017 seeks to give jurisdiction over ordinary and criminal matters to appeals courts in every state, with the High Courts retaining constitutional and public law jurisprudence. This essay, due to the paucity of space, primarily discusses only the first kind of appellate courts, although it does put forth comparative arguments against the second proposal where relevant. 

The Supreme Court seems to exhibit a very self-aware critique of how its own ambit has potentially gone haywire. In the catenation of cases quoted by the order mentioned above, the Supreme Court seems extremely cognisant of the fact that it has turned into an appeals court when it ought not to have. For instance in Mathai @ Joby v. George & Anr., (2010) 4 S.C.C. 358, the Court notes at para 4, with poetic frustration (Katju J. was part of the Bench), that “[n]ow-a-days all kinds of special leave petitions are being filed in this Court against every kind of order.” It elucidates how as a consequence of such intense litigation activity, “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.” (e.a.)

This echoes a pedigree of previous judgments of the Court (see paras 8 & 9 in Mathai), which begins in 1950 in the case of Pritam Singh v. The State, A.I.R. 1950 S.C. 169 (quoted with approval at para 9 in Mathai). In this case, a Constitution Bench of the Court states very tritely at para 9 that it seems clear that “the wide discretionary power with which this Court is invested under [Art. 136] is to be exercised sparingly and in exceptional cases only.” The reasoning for doing so being that “Article 136 does not confer a right of appeal on a party but vests a vast discretion in the Supreme Court meant to be exercised on the considerations of justice, call of duty and eradicating injustice.”(Tirupati Balaji Developers Pvt. Ltd. & Anr. v. State of Bihar, A.I.R. 2004 S.C. 2351 at para 15)

But all this hardly curtails the Court from truly exercising it’s jurisprudence ever so sparingly, and the judgment of a five-judge Constitution Bench of the Supreme Court in Mathai @ Joby v. George & Anr., 2016 S.C.C. OnLine S.C. 410, only confirms this reality. In this judgement, the Court concludes at para 6 that: “no effort should be made to restrict the powers of this Court under Article 136 because while exercising its powers under Article 136 of the Constitution of India, this Court can, after considering facts of the case to be decided, very well use its discretion. In the interest of justice…it would be better to use the said power with circumspection, rather than to limit the power forever.(sic)”(e.a.)

While this judgment draws authority from, inter alia, the cases discussed above, the use of more subtle phrases like ‘circumspection’ indicates a definite change. And this change lies in favour of not restricting or not limiting the power of the Court under Art. 136 rather than positively mandating its use in exceptional cases and in the interests of justice only.

This point is most vigorously fleshed out when the words of this Bench are compared with the words of the four-judge Constitution Bench in Bihar Legal Society v The Chief Justice of India & Anr.,1987 S.C.R. (1) 295. In this case, the Bench, after noting that the Supreme Court was no ordinary appellate court, clearly enunciated the doctrinal justification for the Supreme Court’s extraordinary jurisdiction under Art. 136. The Bench stated: “We must..reconcile ourselves to the idea that like the apex court which may be wrong on occasions, the High Courts may also be wrong and it is not every error of the High Court which the apex court can possibly correct.” This is in clear contrast with the Constitution Bench judgment in Mathai (see above), which very evidently implies that the Supreme Court may well seek to correct every erroneous judgment of the High Courts, so long as it is ‘circumspect’. While Bihar Legal Society and the other cases so discussed envision the Court’s Art. 136 powers as exceptional, the Constitutional Bench in Mathai suggests they are widely available and subject only to some care in their exercise.

Whatever the merits or demerits of the Supreme Court’s own jurisprudence on its appellate jurisdiction may be, it certainly stands wide and broadly deployed, despite internal criticism. The effect, as noted in so many of the judgments discussed above, is that the Court gets clogged up with very many cases―which naturally hampers the delivery of justice.

Data analysis by Robinson (2013) shows a Supreme Court that is plagued by a tremendous workload. For instance, between 2000 and 2010, the number of new admissions matters and regular hearing matters filed with the Supreme Court increased at a rate of 96% and 97% respectively (Robinson, 2013, p. 571). Quite unsurprisingly, the percentage of petitions filed with the Court for applications under Art. 136 has been above 80% since the early 1990s (Robison, 2013, pp. 583-84). And this goes to confirm, beyond any reasonable doubt, that the Supreme Court has undeniably become an ordinary appellate court. A report by The Hindu in 2015 showed that upon analysing 884 of the 888 judgments handed down by the Supreme Court in 2014, only 7% were on Constitutional matters, with only 14 judgments, involving important questions of law, being given by a five-judge bench. This simply cannot continue. The Supreme Court’s workload is heavily skewed towards ordinary appeals and special leave petitions verily due to its own jurisprudence. This naturally impacts its ability to both work on special and constitutional appeals and to deliver timely justice in ordinary appeals.

Yet, the Supreme Court’s refusal to place any limits on its own power is both symbolic of and the reason behind these alarming statistics. It is due to its wide powers that the Court gets clogged up. And it is in order to ease this heavy burden that national courts of appeal need to be set up, potentially across different zones in India—as suggested by the Attorney-General Mr. K.K. Venugopal. Of course, one may argue that the real solution here is a turn away from the Bench in Mathai and a turn towards the Bench in Bihar Legal Society (see above). But that may not prove helpful. As already pointed out in the introduction, the Supreme Court ends up being the last recourse against errors in courts below. Even if it is not an ordinary appellate court, it ends up having to be so, for there is no other place that can correct the blatant errors in law a lower court might end up committing.

The clearest example is the Tirupati Balaji case (see above) itself, where despite the Court’s narrow construction of its Art. 136 powers, the Court used them to impugn a Division Bench order of the Patna High Court that criticised a notice sent to the said High Court by the Supreme Court. The Supreme Court had been ostensibly misled by one of the parties in a case before it. And it wished to conduct some fact-finding, thereby seeking the High Court’s response on whether proceedings that were touted to not be happening in that Court were actually happening or not. The Division Bench of the Patna High Court, instead of treating this regular matter as part of the Administrative Side, thundered at the notice. It pointedly asked if it had been made a litigant to the cause in front of the Supreme Court, or if it was now supposed to have it’s Registrar General file a report with the Supreme Court (para 5 in Tirupati Balaji). In Tirupati Balaji, the Supreme Court, acting very explicitly as an appellate court (paras 7-31), even if exceptionally, corrected this grave error made by the Patna High Court, and struck down the absolutely misconceived Division Bench order.

This serves to indicate that there is true importance to the Supreme Court’s role as an appellate court, which almost inevitably makes it an ordinary appellate court as a matter of necessity. Indeed, fundamentally erroneous decisions like the Patna High Court order that was challenged in Tirupati Balaji may not be churned out by High Courts on a wholesale basis. But the fact is that, India has a population of more than 1.3 billion, where millions are still prey to the misfortunes of poverty, illiteracy and corruption, the very magnitude of the task of delivering justice in such circumstances means error is inevitable. The Supreme Court is the only thing that prevents errors, big and small, from cumulatively dismantling India’s judicial system. This means that it is forced to keep its gates open, as much as possible, to ensure ordinary appeals matters are given their due—in the absence of an ordinary appellate court(s). And one has to appreciate that this fact must have seriously weighed the minds of Their Lordships in the Constitution Bench in Mathai before they turned against the grain of earlier authority. In fact, these considerations were appreciated by the Constitution Bench in Bihar Legal Society as well, which is verily the reason why it recommended that a national court of appeal be instituted to deal with appeals on ordinary matters.

The setting up of a court or courts of appeal that would seek to correct errors made by lower courts in regards ordinary law, both civil and criminal, will ensure the Supreme Court is not forced to take on the burden. It would strike the right balance by ensuring the Supreme Court’s Art. 136 power is practically limited so that the Court is not overburdened whilst being technically available so that the hardest cases are never left out. While a separate set of appeals courts in each state hearing appeals on ordinary matters would lessen the burden as a whole, it would not resolve the catch-22 that engulfs the Supreme Court’s Art. 136 jurisdiction and, therefore, not solve the problem. The Supreme Court would still hear appeals from those courts of appeal along with those of the High Courts, potentially being no less encumbered than it is now. In contrast, with the interposition of a court of appeal between the Supreme Court and the High Courts, the work of the Supreme Court would materially decrease whilst still ensuring it has the legal power to step in if the situation requires.

Thus, it would appear that, in order to achieve both a reduction in the pendency of cases and a return to the Supreme Court’s original role as a final appellate court, a national court(s) of appeal is extremely necessary. Such a court of appeal with circuit benches in different zones across the country, as suggested by Mr. Venugopal, would act as an ordinary appellate court, bringing about efficiency in the delivery of justice by correcting errors that may routinely be made by the High Courts and lessening the burden on the Supreme Court. Such appellate courts would let the Supreme Court keep it’s doors wide open under Art. 136, thereby ensuring that if and when the law is truly on a knife-edge, the doors of the Supreme Court remain open to bring about clarity and justice in ordinary matters.


Robinson, N., (2013) “A Quantitative Analysis of the Indian Supreme Court’s Workload”, 10(3) Journal of Empirical Legal Studies 570. (link:

Harsh is a graduate of the University of Bristol. He is also the Chief Editor of The Pangean, a policy-based media outlet. He is interested in commercial laws, and regularly writes on related areas like Foreign Policy and Economics.

Image Credits – The Wire


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