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.
Source: Barandbench
