3 Apr 2010

Scope of 'Special Leave Petition' to be reconsidered: Supreme Court

Holding that the concept behind providing for extra-ordinary jurisdiction vested in the Supreme Court to entertain an appeal against any decision of a lower authority (under Article 136 of the Constitution and known as 'Special Leave Petition' in legal circles) has been significantly diluted, a division Bench of the Court headed by Justice MARKANDEY KATJU has referred the matter to be decided by a constitutional bench "to decide which kinds of cases should be entertained under Article 136, and/or for laying down some broad guidelines in this connection."

The division bench, giving the reason for such a move, was apparently appalled by the fact of numerous petitions being presented before it on every Monday and Friday (known as Miscellaneous days in Supreme Court) were each of the Courts hear about 60-100 petitions on their admissibility. While the success rate of the admission of such matters is not known in strict terms, these do take away two full working days of the entire Court's docket in as much as no other work is generally entertained on these days except unless directed by the presiding judge to take up non-miscellaneous matters for final disposal. 

The division bench noted the plight of the Supreme Court under the extended scope of Article 136 in the following terms;- "4. We are prima facie of the opinion that such special leave petitions should not be entertained by this Court. Now-a-days all kinds of special leave petitions are being filed in this Court against every kind of order. For instance, if in a suit the trial court allows an amendment application, the matter is often contested right up to this Court. Similarly, if the delay in filing an application or appeal is condoned by the Trial Court or the appellate court, the matter is fought upto this Court. Consequently, the arrears in this Court are mounting and mounting and this Court has been converted practically into an ordinary appellate Court which, in our opinion, was never the intention of Article 136 of the Constitution. In our opinion, now the time has come when it should be decided by a Constitution Bench of this Court as to in what kind of cases special leave petitions should be entertained under Article 136 of the Constitution."

The Bench also reflected that while Article 136 indeed specified that the admissibility of such petitions was a discretion of the Court, it was "not mentioned in Article 136 of the Constitution as to in what kind of cases the said discretion should be exercised. Hence, some broad guidelines need to be laid down now by a Constitution bench of this Court otherwise this Court will be flooded (and in fact is being flooded) with all kind of special leave petitions even frivolous ones and the arrears in this Court will keep mounting and a time will come when the functioning of this Court will become impossible."

The bench also heavily extracted from the earlier decisions of the Supreme Court where it was declared that the remedy under Article 136 was a special one and purely upon the discretion of the Court to hold that "we feel it incumbent on us to reiterate that Article 136 was never meant to be an ordinary forum of appeal at all like Section 96 or even Section 100 CPC. Under the constitutional scheme, ordinarily the last court in the country in ordinary cases was meant to be the High Court. The Supreme Court as the Apex Court in the country was meant to deal with important issues like constitutional questions, questions of law of general importance or where grave injustice had been done. If the Supreme Court entertains all and sundry kinds of cases it will soon be flooded with a huge amount of backlog and will not be able to deal with important questions relating to the Constitution or the law or where grave injustice has been done, for which it was really meant under the Constitutional Scheme. After all, the Supreme Court has limited time at its disposal and it cannot be expected to hear every kind of dispute."

In this background, on a concluding note, the Bench stated as under;
23. In our opinion, the time has now come when an authoritative decision by a Constitution Bench should lay down some broad guidelines as to when the discretion under Article 136 of the Constitution should be exercised, i.e., in what kind of cases a petition under Article 136 should be entertained. If special leave petitions are entertained against all and sundry kinds of orders passed by any court or tribunal, then this Court after some time will collapse under its own burden.
The sentiments raised by the Bench are indeed applaudable given the fact of a large number of undecided cases haunting the dockets. However what is to be appreciated is the fact that the limitation on appeal should not come in the way of the quest for justice of the citizens. Depriving the right to appeal to the highest court should not become translated into allowing the lower courts a free run in passing arbitrary orders, which are currently checked by the Supreme Court in appellate jurisdiction. The sentiment of limiting the scope of appeal is, however, not new. Even the Law Commission of India in its 229th Report considered the question "as to whether there is need for creating a Constitutional Court or Division in our Supreme Court that shall exclusively deal with matters of constitutional law and four Cassation Benches one each in the four regions" and made interesting proposals therein. Even the 230rd Report entitled 'Reforms in Judiciary' also merits consideration in this debate. One can only hope that the plight of the citizens would be given due weight-age in deciding these issues of immense implications and ramifications on the legal order in the country.

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