Tuesday 26 January 2016

What Makes Special Leave Petitions ‘Special’?

By Sandeep Suresh

On March 19 2010, a division bench of the Supreme Court of India (SC) in Mathai @ Joby v George ((2010) 4 SCC 358) had referred the matter to a constitution bench to determine the kind of cases in which special leave to appeal could be granted under Article 136 of the Constitution. Thus, the ambit of the ‘discretionary’ appellate jurisdiction of the SC was sought to be determined.

The concern behind this reference order in 2010 was that under Article 136, “all kinds of special leave petitions were being filed against every kind of order”. The order cited two aspects of this issue: 1. arrears in the SC were increasing heavily and Special Leave Petitions (SLPs) formed the main chunk and 2. the SC was being converted into a typical appellate court entertaining matters that do not involve any significant questions of law or the Constitution. Additionally, the reference order listed out a few categories of cases that could be entertained under Article 136 for reference of the constitution bench. Matters involving substantial questions of law and the Constitution, matters of public importance, validity of Central and State laws and cases of grave miscarriage of justice were some of the main types of cases mentioned.

However, on January 11 2016, a five-Judge constitution bench refused to reduce the scope of Article 136 either by issuing guidelines or by limiting the types of cases that could be granted special leave.

While refusing to do so, the SC failed to notice a few significant observations made by it in the past. Apart from repeatedly cautioning that Article 136 must be used ‘sparingly’, the SC has pinpointed the actual duty of the apex court while entertaining SLPs as well. In Kunhayammed v State of Kerala (AIR 2000 SC 2587), the court had observed that SLPs must be admitted only in cases where substantial questions of law or public importance are involved or there is manifest injustice caused. In Rafiq v State UP (1981 AIR 559), Justice Krishna Iyer had clarified that SLP jurisdiction is meant mainly to “correct manifest injustice or errors of law of great moment”. Further, in Bengal Chemicals Ltd v Their Workmen (AIR 1959 SC 633), a noteworthy exposition of the nature of Article 136 and the SC’s duty can be seen. The SC held that even though Article 136 is couched in the broadest terms as possible, the SLP jurisdiction must be invoked only in cases where there is violation of natural justice, substantial and grave injustice done to the parties or those which require elucidation of important principles of law. Hence, the SC in Mathai Reference should have taken a more serious look at reconsidering Article 136.

“Limitations on discretion are as inevitable and abundant as the sources of discretion” [i]

What is as clear as crystal is that discretion in boundless terms, which is the essence of Article 136, is what the SC refused to give away in this case. It is purely human that different persons have dissimilar standards of applying discretion and it is no different for the SC judges. This has resulted in totally inconsistent standards of admitting SLPs by the SC as the court sits in more than 10 division benches! Notably, in Pritam Singh v The State (AIR 1950 SC 169), the SC had warned that as far as possible, a ‘uniform standard’ should be adopted in admitting SLPs. Unfortunately, no such regular patterns have been observed by the SC till date.

The outcome of such an undesirable situation can be best explained by the High Court of Australia’s judgment in Norbis v Norbis ((1986) 161 CLR 513): An unfettered discretion is a versatile means of doing justice in particular cases, but unevenness in its exercise diminishes confidence in the legal process”. To avert such a scenario, it is crucial that broad principles may be expressed to guide the exercise of judges’ discretion under Article 136 as suggested by the reference order. This would help in sinking the significance of personal predilections of each judge/bench and bring in certain levels of uniformity in exercising such a wide discretionary jurisdiction.

Moreover, the SC ought to have remembered that discretion in the ordinary sense and judicial discretion, which is regulated by rules or judicial principles, are different.[ii] Even the Black’s Law Dictionary defines judicial discretion as the discretionary action of a Judge which is bounded by principles of law and not unrestrained.

Even the drafters of Article 136 were of the belief that there ought to be some self-imposed guidelines. While speaking in the Constituent Assembly on June 6 1949, Shri H.V. Pataskar had stated: “The Supreme Court is not likely to grant special leave in any matter whatsoever unless it finds that it involves a serious breach of some principle in the administration of justice, or breach of certain principles which strike at the very root of administration of justice as between man and man”. Unfortunately, the reference order in Mathai shows that after 66 years since its inception, the SC has not lived up to that founding belief.

The ‘Supreme’ duty of the SC

The nature of guidelines prescribed in the reference order, the judgments discussed and seen in the Constituent Assembly Debates essentially aimed at reminding the SC of its predominant duty i.e. to adjudicate issues relating to the Constitution and interpret legal principles. Why this is important is because our SC has not been able to fulfil that duty satisfactorily. According to Mr. Alok Prasanna Kumar, in 2014, 34,500 SLPs relating to civil cases alone were filed in the SC and in almost 44 % of those cases, notice was issued by the SC. This shows that a non-judicious use of Article 136 jurisdiction has caused the SC to transform into an ordinary appellate court regularly dealing with very high number of ordinary civil or criminal appeals.

Consequently, the number of constitutional cases decided every year has declined. In that context, Chief Justice T.S. Thakur’s recent move to ensure constitution bench hearings on every Mondays and Fridays is a welcome step to dispose of all the 25-30 constitutional cases pending in the SC today. If only the SC in Mathai Reference had contributed to this cause, it would have been an even better start in 2016 for the judiciary.

[i] C.Schneider, Discretion and Rules: A Lawyer’s View in K.Hawkins (ed.), The Uses of Discretion (Oxford University Press 1992)
[ii] N.Isaacs, The Limits of Judicial Discretion, Yale Law Journal, Vol. 32, No. 4 (1923)

Tuesday 19 January 2016

What are the Courts Working On?

It is a well-known fact that there are an enormous number of cases that have been filed before the Indian courts. It is an equally well-known fact that many of these cases have been pending before the said courts for several years.  Talks of pendency always seem to centre on these huge, and more often than not, unfathomable numbers. There is however, a third, and lesser discussed aspect to this pressing issue of pendency – the subject matter of these multiple and much delayed cases.

That is the very question we are asking in this blog post– what are the kinds of cases that the courts are working on? To answer this question, we’ve chosen to look at a single High Court from our database - the High Court of Karnataka.

Among the information we collect for each case record we have in our database, we have case types. The table below illustrates the distribution of case types for 2,34,795 case records that we have for the High Court of Karnataka. In addition, the table compares the duration of pendency across these various case types. So without further ado, let’s look at what the High Court of Karnataka is working on.

Writ Petition
Miscellaneous First Appeal
Criminal Petition
Regular Second Appeal
Regular First Appeal
Criminal Appeal
Criminal Revision Petition
Writ Appeal
Company Petition
Income Tax Appeal
Miscellaneous Second Appeal
Civil Revision Petition
Company Application
Review Petition
Civil Miscellaneous Petition
Civil Petition
Civil Contempt Petition
Miscellaneous First Appeal Cross Objection
Review Petition Family Court


There are multiple inferences that can be read from this table, but right off the bat, a couple jump out.

The first natural question of course, is, what kind of cases are most prevalent? At the top of the list, with a 30 per cent majority are Writ Petitions (WP). To quickly explain, writ petitions are cases filed by persons whose fundamental right have been violated by the state. So, in number speak, one third of the cases are those filed against the government or government agencies.

For an even larger, but not quite so obvious statistic, consider this: in the second column, just look for the word ‘appeal’ and then add up the percentages next to each of those case types. Together, seven case types – various kinds of appeals – account for 48 per cent of the total. An appeal is in essence a request to a higher court to review and revise the decision of a lower court. That means for about half these cases pending before the High Court, judicial time has already been spent, and this is the second time before a court.

The table also throws up possible correlations (or lack of) between the number of cases and average pendency. According to the data, Company Petitions (COP) have the longest average pendency of 2,179 days, about six years. However, they make up only 1 per cent of the sample. Whereas, Writ Petitions (WP), which make up one third of the total, are pending on average for the relatively shorter time period of 866 days or 2 years and 4 months.

The paragraphs above contain just a few of my thoughts as I created and looked at this table. They are but a tiny speck in the pool of questions that can be asked and the analyses that can be carried out using this data. Ultimately, what this table clearly illustrates is that understanding the composition of judicial workload is a much needed step towards building sustainable solutions to pendency.

Do you have any thoughts, ideas or questions about this data? If you do, let us know by leaving a comment below. We are eager to hear from you. 

Monday 4 January 2016

Favourites of 2015 from the DAKSH blog archives

Here is a recap of our most viewed blog posts of 2015:

1. Salman and Speed by Harish Narasappa discusses the issue of chronic pendency in the Bombay High Court which is in contrast to Bollywood actor Salman Khan's speedy HC appeals process which concluded on 10 December 2015.

2. The State of Judicial Statistics in India by guest blogger Dr. Aparna Chandra of National Law University, Delhi discusses the state of the Indian Judiciary and attempts being made to reform it.
3. Making Bricks Without Clay: The Difficulties with Obtaining Data in Studying Indian courts by guest blogger Alok Prasanna Kumar of Vidhi, highlights the importance and lack of reliable data in the judicial reform process.
4. Data and the Indian Courts by Kavya Murthy discusses DAKSH’s pendency database and issues with the data provided by the High Court websites.
5. Judicial Independence and the Appointment of Judges - A transcript of DAKSH's Fourth Annual Constitution Day Lecture provides a transcript of our Fourth Constitution Day Lecture by Mr. Raju Ramachandran, a Senior Advocate at the Supreme Court of India and a former Additional Solicitor General of India.
Look forward to more such relevant and insightful pieces in 2016.