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29 February 2016 Editorial

 

29 FEBRUARY 2016 

Reworking the Supreme Court’s role 

By admitting a Special Leave Petition that seeks the setting up of a ‘National Court of Appeal’ to hear routine appeals in civil and criminal matters from the High Courts, the Supreme Court has signalled its willingness to grapple with a question that has been raised unsuccessfully in the past. The question is whether the apex court should be burdened with the responsibilty of examining the correctness of every case decided by the High Courts, and whether it should not be allowed to devote its time entirely to settling questions of constitutional importance. The underlying issues may include the accumulating backlog of cases in the Supreme Court, and the need to separate pending cases into those that touch upon constitutional questions and other routine matters. Constitutional questions may refer to the validity of a statute or a rule, or to issues that require interpretation of the Constitution. A third concern relates the oft-cited difficulties of litigants from different parts of the country for whom New Delhi may be too far. The solutions put forward include dividing the Supreme Court into a ‘Constitutional Division’ and a ‘Legal Division’; having the principal Constitution Bench in Delhi and creating four regional Benches to hear appeals on High Court orders; and, third, creating a National Court of Appeal that will have four ‘Cassation Benches’ for the adjudication of non-constitutional matters.

According to the Union Law Ministry, which recently rejected a lawyer’s demand for a National Court of Appeal, successive Chief Justices of India have been against the establishment of Benches outside Delhi. Further, it has obtained legal opinion that a Constitution amendment to revisit the Supreme Court’s role would be impermissible as it would change the court’s character under the Constitution. The opinion appears to disfavour a suggestion by the Law Commission in its 229th Report (2009) that if necessary Article 130 (“The Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint”) may be amended to implement its suggestion that Cassation Benches may be set up in four regions, while the Constitution Bench sits in Delhi. Courts of Cassation are courts of last resort to reverse decisions of lower courts. A key issue to be settled is whether it will be advisable for the highest court to share with a possibly inferior court of appeal its power under Article 136 to grant special leave to appeal on High Court orders. Also, in recent times the Supreme Court has been conscious of its role as the interpreter of the Constitution, and holds a sitting of a Constitution Bench virtually every day. Even within the present structure, regional Benches may help address the problem of access to justice but not that of accumulation of cases. The idea of a National Court of Appeal requires consideration, but in a manner that would not undermine the undoubted authority of the Supreme Court of India.

 

For a green economy that is also just 

India’s solar power programme has come under intense scrutiny by global political and business leaders, especially given its aggressive intent and extensive trade opportunities. The programme, a part of the National Solar Mission, envisages an addition of 100,000 megawatts of solar power capacity by 2022. This initiative is also seen as a critical sub-component of the global effort to limit the extent of climate change. The recent ruling by the World Trade Organisation (WTO) against India must be read against this background. The WTO has ruled that the domestic content requirement (DCR) imposed by New Delhi on the production of solar cells and modules under the National Solar Mission violates global trade rules. According to the dispute settlement panel of the WTO, “These are inconsistent with both Article III:4 of the GATT [General Agreement on Tariffs and Trade] 1994 and Article 2.1 of the TRIMS [Trade-Related Investment Measures].’’ It has gone on to say that the DCR measures “do accord less favourable treatment’’ within the meaning of the provision under Article III:4 of the GATT 1994. The WTO ruling comes three years after the U.S. raised a dispute against India, and following the inability of the two countries to agree on the changes suggested by New Delhi to its solar programme. India is convinced that the DCR is a mechanism to facilitate sustainable development. It has even indicated that it is willing to apply the DCR only for buying solar panels used for government sector consumption, and has assured the U.S. that power generated from such subsidised panels will not be sold for commercial use. Coming as it does in the midst of a presidential election year, the WTO order in this instance is a significant victory for the U.S. Hailing the ruling, President Barack Obama said: “The U.S. can’t have other countries engaged in practices that disadvantage American workers and American businesses.’’ Given the potential for positive social and economic outcomes from the ambitious solar power programme, India will be compelled, as some other countries have done, to contest the WTO ruling before the appellate body. 

The WTO ruling also comes soon after the Paris climate change agreement, and is bound to open up a wider debate across nations over whether initiatives such as the solar mission, with its social relevance and significant implications for a green economy, must be viewed only from the prism of a pure business opportunity. Given India’s size and also the need to provide meaningful job opportunities for millions of people, it is imprudent to conceive of a framework that either disadvantages or discourages domestic endeavour. The fight against climate change is not an exclusive cause; it has to move in tandem with the provision of jobs and the creation of an environment that facilitates a green economy. The onus for this lies not just on the developing countries. It is time the big economies realised their responsibility in building a greener world.

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