India Needs a Court of Appeal to Maintain the Supreme Court’s Status

A National Court of Appeal will help clear the backlog of cases and maintain the Supreme Court’s position as the apex court of the land.


The Supreme Court of India, as the highest court of the land, has a sacrosanct function to ensure that the country is governed adhering to the principles of the rule of law. It has evolved remarkably well, steering the country through thick and thin. It also has had a tremendous contribution to the jurisprudential landscape, not just in the country but also internationally. The time has come, however, to revisit the court’s function and align it with the needs of today.

A different time

Since the Supreme Court was established in 1950, the nation’s demands have changed tremendously. The population of India in 1950 was less than 36 crores. At present, it is over 1.2 billion. The questions that came before the courts back then were also of a comparatively rudimentary nature – as can be expected of a newly-conceived nation.  There were, of course, important constitutional matters that the Court had to adjudicate on. However, areas of law like intellectual property, and taxation and corporate law were not as big as they are today. Thus, with a limited population and limited areas of law, the Court could cope with just the chief justice and seven judges. Working hours and days were also limited to four hours a day, 28 days a year.

Over the decades, with the growth in population and an increasing number of cases going for appeal, the current number of judges at the Supreme Court increased and now stands at 25 (with the maximum allowed being 31). The Court also functions for most of the year now. Even with the increase in the number of judges and working hours, there is a massive backlog of cases. In 2015, the previous chief justice of India, Justice H L Dattu, estimated the number of pending cases in the country at three crores. A majority of these cases were in the lower courts but there was also a substantial number of cases pending before the Supreme Court.

Perhaps looking at it from an external viewpoint will be a wake up call. A victim who was injured in the terror attacks in the Taj Hotel wanted the trial for compensation to take place in London rather than in India. In 2013, a London court ruled that the case could be fought in London courts, on the grounds that holding the trial in India could take “some twenty years.”

Why national courts of appeal are a good idea

Getting justice in India takes years, sometimes even decades. The Supreme Court cannot to be blamed for this. Delivering justice does take time – in order to ensure fairness, all parties should be satisfied that they have had reasonable time to prepare their cases, present witnesses and so on.

However, there is a solution that can at least unclog the Supreme Court so that cases that matter the most and have an impact on the country as a whole can be wrapped up with reasonable efficiency.

On February 26 the Supreme Court issued a notice to the central government to establish a national court of appeal with benches in Kolkata, Chennai and Mumbai. This seems to be a step in the right direction for numerous reasons.

First, the Supreme Court will maintain its place as the apex court of land and – like England, Wales and the US – only rule on matters that are of constitutional importance or set new legal precedent. This will allow the Court to dedicate more time to develop the law. The Supreme Court of the UK, for instance, consists of 12 judges and in 2013-2014 only heard about 80 cases. For most cases, the final court of appeal is the aptly named Court of Appeal. Similarly, in India, if a court of appeal is established, the majority of appeals from high courts can be addressed in these courts.

Second, it will make geographical sense to have different benches to hear appeals. As of now, all appeals have to be heard in New Delhi, inconvenient for cases originating in other parts of the country.

Third, a court of appeal can work as an excellent mechanism to sieve cases. If there are areas of law that are particularly unsettled and need clarification, the court of appeal can club them together and send these forward to the Supreme Court. Not only can a number of individual cases be disposed of but areas of law can also be settled and a clear precedent set.

Finally, if the Supreme Court only deals with crucial cases, the process will become streamlined and will save a lot of time and expense, for both litigants and the courts.

There are practical obstacles, of course. For instance, how do we appoint judges to the court of appeal? How do we modify the procedure? Many such issues would have to be worked out. Without doubt, however, it is time to seriously consider a new court of appeal to unclog the Supreme Court and to ensure that its position as the apex court is preserved.

Vishavjeet Chaudhary is a barrister-at-law and Assistant Professor at the Jindal Global Law School, Sonepat.  

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