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Mohit Abraham. 

First published in http://www.mylaw.net , September 14, 2011, http://mylaw.net/Article/Final_appellate_court/

In Mathai @ Joby v. George(2010) 4 SCC 358, a Division Bench of the Supreme Court has made a reference to a Constitution Bench to determine which kind of cases should be entertained under Article 136 and for laying down some broad guidelines in this connection.

Today, almost the entire jurisdiction of the Supreme Court is confined to Article 136. Writ petitions under Article 32 are seldom entertained since the Supreme Court has on numerous occassions indicated that petitioners should first approach the high court under Article 226. This is despite the fact that the right to move the Supreme Court under Article 32 is the only fundamental right that uses the word “guaranteed”. The Constitution also elaborates on the original jurisdiction of the Supreme Court under Article 131 (disputes between states or between the centre and the states), its appellate jurisdiction (Articles 132 to 134), and its advisory jurisdiction (Article 143). The Supreme Court has also been conferred jurisdiction, both appellate and reference, by other statutes (for example, the Consumer Protection Act, 1986the Customs Act, 1962; and the Advocates Act, 1961) and also has jurisdiction over certain other kind of disputes, such as those pertaining to the election of the President and the Vice President and transfer petitions.

Nevertheless, in terms of sheer numbers, the extraordinary jurisdiction of the Supreme Court under Article 136 is the one most invoked. While I do not have raw statistics to rely on (while the Supreme Court website provides information about pending cases, it does not clarify which jurisdiction has been invoked), it would not be surprising if over ninety per cent of the cases instituted in the Supreme Court are those under Article 136. It is no wonder then that the Supreme Court Bar would readily acknowledge that Article 136 ensures the livelihood of its members.

In this background, let us look at Article 136(1) of the Constitution. It states that “…the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India”.

Article 136 therefore affords the absolute discretion to the Supreme Court to decide whether or not it will grant leave to appeal in a given case. The Supreme Court has consistently emphasised that Article 136 is not a forum for regular appeal. In Pritam Singh v. The State, AIR 1950 SC 169, the Supreme Court had observed that “On a careful examination of Art. 136 along with the preceding article, it seems clear that that the wide discretionary power with which this Court is invested under is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range or matters which can come up before it under this article”In various other cases, the Supreme Court has time and again highlighted the extraordinary nature of Article 136.

Over a period of time however, this absolute discretion has not been utilised with the selectiveness which ought to have been attached to it, resulting in a plethora of cases being filed and admitted under Article 136 of the Constitution. To be fair, even today, the large majority of cases filed under Article 136 are dismissed by the Supreme Court, but the number of cases admitted under Article 136 does not seem to be indicative of the true purpose of Article 136 – that is, Article 136 is to be used sparingly and in exceptional circumstances.

Unlike the United States Supreme Court where the full court of the judges decide in chambers whether or not to hear a petition and issue “cert”, in India, each and every petition filed under Article 136 is heard in open court. The pendency of over 50,000 cases in the Supreme Court largely consists of this category of cases. On Mondays and Fridays, when the Supreme Court considers whether or not to proceed with a special leave petition, each judge of the Supreme Court has to go through sixty to seventy petitions, most of them voluminous. The judges cannot be faulted if, while operating under such a tremendous workload, some meritorious cases are dismissed and other less deserving cases are entertained. In the absence of any specific guidelines as to what category of special leave petitions ought to be admitted or dismissed, this has also resulted in many inconsistencies in the legal positions between various benches of the Supreme Court. All these factors are the genesis of the common lament heard in the Supreme Court amongst the legal fraternity that whether or not a special leave petition is admitted is largely a matter of chance – a gamble. A litigant’s fortune would dramatically change depending on which bench their case comes up for hearing before.

The decision in Mathai has reiterated what the Supreme Court has consistently been holding – but not following – that the power under Article 136 is to be used sparingly for extraordinary situations or situations occasioning gross failure of justice. Despite various pronouncements, the Supreme Court has by and large permitted itself to become a court of appeal by acting as the final appellate court in exercise of its jurisdiction under Article 136, seeking to correct every error that may creep into a decision of the court below. The consequence of Article 136 has been that any litigant who has the means to pursue a case in New Delhi, prefers as a matter of course, a special leave petition under Article 136.

Senior Advocate K.K. Venugopal in his R.K. Jain Memorial Lecture (which was extensively referred to by the Supreme Court in Mathai) had bemoaned the tendency of the Supreme Court to correct every error and linked the accumulation of vast arrears precisely to this malady. He termed this as a “self inflicted injury” by the Apex Court. He went on to suggest having four regional appellate courts with one Constitutional Court in New Delhi. Essentially, the Apex Court would only decide substantial questions of constitutional law, while the other regional courts would take over the matter of sitting in appeal over decisions of the High Court. This idea, from one of the most pre-eminent senior counsels of our time, primarily stems from the ineffective screening which the Supreme Court has given to the vast majority of cases filed under Article 136.

If the Supreme Court had followed its own prescribed principles in the application of Article 136, that is, utilising Article 136 in rare and exceptional cases, the high courts of various states would in most cases be the last court for the large majority of litigants as the Supreme Court would only focus on the most important cases and steer the legal interpretation process of the country. In such a scenario, there would never have been any debate for, or even a need for four regional appellate courts over the existing high courts. It is in this light that I think that Mr. Venugopal’s suggestion of adding one more layer of courts would not be helpful. It appears to be only an ad hoc measure to cure the malady of pending cases before the Supreme Court. However, in terms of a principle, it needlessly adds one more stage to the hierarchy amongst the judiciary already embedded in the Constitution. The high courts along with the Supreme Court are courts of record (See, Articles 129 and 215 of the Constitution) and are considered as superior courts. The role envisaged by the regional appellate courts proposed by Mr. Venugopal should be fulfilled by the high courts. As I have mentioned above, even within the exisiting Supreme Court, there are various decisions on different points of law which are conflicting and inconsistent. If there were to be four more regional appellate courts across the country, the conflicts would only increase.

However, the learned senior counsel does make a very valid point – that the Supreme Court should circumscribe its jurisdiction under Article 136. He argues that the Supreme Court ought not to interfere in cases where there are ordinary errors of law or fact, but the exercise of its extraordinary jurisdiction should be confined to cases involving constitutional issues, federal issues, validity of laws, and substantial questions of law which affect the nation as a whole. (See, Sir Chunilala V. Mehta and Sons v. The Century Spinning and Manufacturing Company Limited, 1962 SCR Suppl (3) 549, for the interpretation of the phrase “substantial question of law).

The judgment in Mathai has referred the issue as to what category of cases should be heard under Article 136 to a Constitutional Bench of the Supreme Court and while doing so, has recommended some of the objective parameters which the Constitution Bench may consider. These parameters are (a) matters involving substantial questions of law relating to the interpretation of the Constitution; (b) matters of national or public importance; (c) validity of laws, central and state; (d) judicial review of Constitutional Amendments; (e) settling differences of opinions of important issues of law between High Court; (f) where the Court is satisfied that there has been a grave miscarriage of justice; and (g) where a fundamental right of a person has prima facie been violated.

Will this approach of the Supreme Court in Mathai resolve the spate of cases being filed under Article 136 of the Constitution as a matter of course and bring down the pendency list of over 50,000 cases before the Supreme Court?

The answer would lie in the sincerity with which the Supreme Court decides to adopt the measures, that is, assuming that the Constitution Bench at all considers such measures necessary. With regard to categories (a), (c), (d), (e), and (g), there can be no serious dispute that these categories of cases ought to be considered by the Supreme Court, and are indeed presently considered and covered by different Articles of the Constitution.

However, some degree of apprehension can be expressed with regard to categories (b) and (f) which may very well frustrate the entire purpose of limiting Article 136. First, special leave petitions will continue to be filed by litigants and lawyers on the basis of category (f), that is, on a ground that there has been a grave miscarriage of justice. For every litigant, their case is the most important litigation and if they lose in the courts below, would invariably conclude that there has been a grave miscarriage of justice and hence prefer a special leave petition. Second, any case which involves large amounts of money would invariably lead to a special leave petition on the grounds that it is a matter of national or public importance, that is, category (b). This obviously need not be the case. A problem that can be foreseen is that this category provides a door for the rich and the powerful to enter through with their litigation and dispute before the Supreme Court and deny the same to an ordinary Indian. A case in point is a dispute involving one of the leading corporate families in the country, which after two rounds of protracted litigation in the high court, consumed weeks of the Supreme Court’s time and was also heard out of turn when other litigants have to wait for four to six years before their cases come up for final disposal. Of course, there are cases that involve national or public importance which are not at all related to wealth, for instance, communal violence, corruption, or squandering away of national resources, but the Supreme Court would have to take care to confine category (b) to only such rare cases.

In any event, category (f) in itself, would ensure that the number of cases filed before the Supreme Court under the umbrella of Article 136 will not change in any significant manner. The only way this can be stemmed is if the judges take a firm view and only allow those special leave petitions where there has indeed been a grave miscarriage of justice or which genuinely involve a point of national and public importance and not merely an incorrect decision. This factor will always remain within the subjective satisfaction of a judge and efforts to qualify circumstances of “grave miscarriage of justice” will be futile.

Therefore, even when clear parameters are prescribed for circumscribing Article 136, one would necessarily have to fall back on the implementation of the same by the judges for it to be a complete success. This leads me to my next point as to whether the implementation of such parameters would at all be successful.

As stated earlier, Article 136 has not been confined to rare and exceptional cases. One speculative reason is that a concomitant of placing curbs on the exercise of discretion is the consequent curbs on the exercise of power. It is basically a reversal of the popular phrase, “with great power comes great responsibility” to “with great responsibility comes great power”. By not shackling itself to fixed parameters under Article 136 and leaving open a large window of discretion, the Supreme Court is able to influence and develop a vast field of laws and governance, which, since Independence, has mostly been exercised to preserve the constitutional scheme and for the welfare of the country.

Having said that, it must be pointed out that even despite being extremely selective over the cases it hears, the United States Supreme Court has historically played a very important role in every major public law aspect from civil rights, to abortion, to electoral practices and continues to influence public life in a significant manner. The difference however, is that the United States Supreme Court has always been selective in the cases it hears and the large majority of cases (even cases involving substantial questions of national importance) are seldom heard by it. In fact, there are many instances where the United States Supreme Court has declined to interfere in matters which involve substantial questions of national importance (for instance, racial issues) for fear of immature rule imposition – where it felt that society may not receive a decision positively if it was imposed and that the moral and legal view point should be allowed to evolve naturally through social development processes.

To the contrary, the Indian Supreme Court has exercised a wide range of discretion in terms of hearing petitions under Article 136 and has consequently heard a variety of matters from constitutional issues to smaller factual issues of rent control and land acquisition. Placing specific parameters would certainly amount to cutting down its area of influence and one has to wonder whether the Supreme Court would want to take such a step. The very influential lobby of Supreme Court lawyers would also strongly resist any change to the present application of Article 136. In practice, the Apex Court is the final appellate court and every petitioner with the means, would want to try a last roll of the dice before accepting a final decision.

Perhaps instead of focusing on elaborating parameters under Article 136, the real focus of the legal community and executive, should be on increasing the quality of judgments of the courts below. The Supreme Court would be vastly helped in excercising restraint in the application of Article 136 if the quality of judgments right from the trial court to the high courts is of a high standard, well analysed, and researched and takes into consideration all material facts and evidence. This can be done by improving the infrastructure of the courts below and providing the lower judiciary with appropriate resources. Extensive training of judicial officers and investigating agencies, would also go a long way in drastically improving the quality of judgments. An efficient and well equipped judiciary would automatically result in better judgments and ensure that the Supreme Court does not have to interfere under Article 136, except in rare cases. The fact remains that when a Supreme Court Judge comes across a glaring error in a matter, it is tempting not to interfere and correct such an error.

Another way in which the Supreme Court would be vastly helped is if the high courts in deserving cases issue “Certificate for Appeals to the Supreme Court” as provided under Articles 132 to 134A. This eliminates the need of preferring a Special Leave Petition and immediately informs the Supreme Court that here is a matter meriting it’s consideration.

The present application of Article 136 was not what the Constitution framers intended Article 136 to be. However, despite the acceptance of the problem in Mathai and the reference to the Constitution Bench to confine its application to a few circumstances, the present application of Article 136 by the Supreme Court, will not change until the wider issue of improving the entire judiciary through resources and training is efficiently implemented.

Until such time, most litigants would feel that the decision of the court below has resulted in a “grave miscarriage of justice” and approach the final appellate court in the hope of relief.


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