L Chandra Kumar, cardinal but oft ignored

A Bench of seven judges of the Supreme Court, in L Chandra Kumar Vs Union of India, way back in 1997, had termed direct appeals from tribunals to the Supreme Court as “too costly and inaccessible”, and had ruled that decisions of tribunals could only be challenged before Division Benches of jurisdictional High Courts.

Despite the categorical declaration of law by the Constitution Bench in L Chandra Kumar and multiple other decisions warning that the highest Court of the land must not open its gates to sundry litigation, direct appeals from tribunals and routine matters disguised as “special” under Article 136, mostly by affluent litigants and instrumentalities of the State who use the High Courts merely as stepping stones for litigation of luxury, have converted one of the most powerful and important courts on the face of the earth into a court of appeals rather than a constitutional court meant for deciding exceptional constitutional issues of general public importance and laying down the law for the world’s largest democracy, as it was meant to.

The High Courts, which stand shoulder to shoulder with the Supreme Court being equally empowered constitutional courts, and which were practically meant to be the last and final courts for most matters, are now being bypassed with the system of direct appeals or not being accorded the finality their judgments deserve, due to the routine invocation of Article 136 by litigating parties.

While the government has taken due care in not providing direct appeals to the Supreme Court in tribunals incepted in recent times, there has been no statutory or practice change initiated in the dispensation of many of the existing tribunals. The routine appeals through the “Special” Leave Petition route have also not abated.

While many English-speaking democracies have in operation a system of what is called a “leapfrog” appeal directly from a lower court or tribunal to the highest Court bypassing the intermediary forums, it is brought into motion with the leave of the Court only in very exceptional cases of national importance which might affect the general public at large.

Litigating in the Supreme Court – just the thought is distressing for the common citizen

Distant from theoretical homilies, for an ordinary litigant, the thought itself of litigation at the Supreme Court or a direct appeal to the Supreme Court from the Court (tribunal) of first instance, can be devastating, and so can be the prospect of defending the case at the highest court of the land as a respondent if the other party approaches it!

To take an example, prior to L Chandra Kumar, government employees and pensioners were forced to approach the Supreme Court directly from the Central Administrative Tribunal (CAT) even for minor and routine matters like fixation of pay and pension. Ditto when the government appealed against CAT decisions favourable to employees. It was, therefore, a great relief for such affected parties, when, after the seven-judge Bench decision in L Chandra Kumar, it was the accessible and affordable jurisdictional High Court located in each state that could be approached.

Sporadic problems still remained. For example, the employees and pensioners from the defence services who were approaching the High Courts from orders of the Armed Forces Tribunal (AFT) based upon the dicta in L Chandra Kumar were almost prohibited from the said accessible remedy when in 2015 it was held by a two-judge bench that the proper way was to approach the Supreme Court directly from the orders of the AFT in terms of the direct appeal provided to the apex court as per the AFT Act.

What was not taken note of was the fact that the AFT Act provided a limited direct appeal only in miniscule exceptional cases involving “a point of law of general public importance”. Now imagine a poor widow in Kerala fighting for family pension or a disabled soldier in Bengal expected to approach the highest Court of the land directly from a tribunal for a few hundred rupees of pension, which remedy is also barred since there would be no “general public importance” involved.

Thankfully, this situation was remedied in 2019 by the Constitution Bench of the Supreme Court in Rojer Mathew Vs South Indian Bank Ltd followed by Balkrishana Ram Vs Union of India and then explained brilliantly by the Delhi High Court recently in Wing Commander Shyam Naithani vs Union Of India.

However, this again solves only half the problem since while the litigants are now able to approach the jurisdictional High Courts, the official establishment, in most cases, continues to file appeals directly to the Supreme Court by routinely citing an imaginary “point of law of general public importance” in all appeals to make them amenable to the direct exceptional appellate leapfrog jurisdiction of the Supreme Court.

Two recent judgments of May 2022 that aid access to justice

But two recent judgments do bring some relief to the situation by partially exorcising this ghost.

In Ibrat Faizan Vs Omaxe Buildhome Private Limited, the power of the High Court to hear a challenge under Article 227 against orders passed in appellate jurisdiction by the National Consumer Disputes Redressal Commission (NCDRC) was questioned and it was argued that such challenges could only be made directly to the apex court. However, the Supreme Court ruled on May 13, 2022, that orders passed in appeal by the NCDRC can be challenged in the High Court since the NCDRC is a ‘tribunal’ within the meaning of law.

In any case, under the new Consumer Protection Act, 2019, an appeal to the Supreme Court is only available from the original orders passed by the NCDRC and not the appellate orders passed by it. On access to justice, the Court observed thus in this case:

“Now so far as the remedy which may be available under Article 136 of the Constitution of India is concerned, it cannot be disputed that the remedy by way of an appeal by special leave under Article 136 of the Constitution of India may be too expensive and as observed and held by this Court in the case of L Chandra Kumar (supra), the said remedy can be said to be inaccessible for it to be real and effective. Therefore, when the remedy under Article 227 of the Constitution of India before the concerned High Court is provided, in that case, it would be in furtherance of the right of access to justice of the aggrieved party, may be a complainant, to approach the concerned High Court at a lower cost, rather than a Special Leave to Appeal under Article 136 of the Constitution.”

Again on May 18, 2022, in Madhya Pradesh High Court Advocates Bar Association Vs Union of India, wherein certain provisions of the National Green Tribunal Act, 2010, including direct appeal to the Supreme Court under Section 22 were challenged, the Court reiterated that the direct appeal provided in the Act would not oust the remedy before the High Courts under writ jurisdiction.

Reiterating the law laid down in L Chandra Kumar, the Court expanded access to justice and pertinently observed as follows while allowing approach to the jurisdictional High Courts under Article 226/227 against orders of the NGT:

“The options available to a litigant to either move to the Supreme Court in a case where a substantial question of law arises or proceed under Article 226 or 227 must not also be overlooked. If necessary, a party can also approach this Court by way of an Article 136 petition. With such choices being available for a party no rational justification is found for striking down Section 22 of the Act which provides for a direct appeal to the Supreme Court.”

In the above judgment, observations have also been made that if one particular party approaches the Supreme Court, the other cannot be seen complaining about the distance to Delhi. But then such observation may not be in tune with what various benches of higher strength have observed on this very aspect, including recently by the ibid five judge Constitution Bench in Rojer Mathew. Proponents of access to justice would rightly suggest that any challenge reaching the Supreme Court, especially from a tribunal, must be an absolute rarity. On this, the following was observed in Rojer Mathew:

“The decrease in propensity of a person with humble means or situated farther away from the Delhi to approach the Supreme Court is evidence of the fact that the remedy to approach this Court has been, in effect, limited to only those with access to ample financial resources. Numerous studies have shown how every tenth case decided by the High Court of Delhi or every sixteenth case decided by the High Court of Punjab & Haryana is appealed before this Court, as compared to a minuscule rate of appeal of a little over 1% against the decisions of High Court of Madras. Being an authority entrusted to resolve Constitutional conflicts or to safeguard the fundamental rights of citizens, this Court cannot afford to provide access only to the affluent.”

The anxiety shown by the Constitution Bench on the issue in Bihar Legal Support Society Vs The Chief Justice Of India in 1986 remains as valid today as it was then.

It is also the duty of the Bar and the government to ensure that the court meant to decide Constitutional issues of national importance is not flooded by us with inconsequential matters making it a forum for small corrections or the first appellate Court.

Major Navdeep Singh is a practicing lawyer at the Punjab & Haryana High Court, Member of the International Society of Military Law and the Law of War at Brussels and International Fellow at the National Institute of Military Justice, Washington DC. He is a proponent of tribunal reform and the founder President of the Armed Forces Tribunal Bar Association at Chandigarh.

He is also the author of “March to Justice: Global Military Law Landmarks” and was part of the Yale Draft (2018) at the Yale Law School- an improvement of the UN Principles on administration of justice through military tribunals.