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.
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.
Notes
[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)
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ReplyDeleteSpecial Leave Petitions (SLPs) in the legal context of India are indeed ‘special’ due to their unique and exceptional nature within the country's judicial system. These petitions are filed before the Supreme Court and hold a distinctive status as they grant the Court discretionary power to hear appeals against any judgment or order from any court or tribunal in the country. What makes SLPs particularly notable is their ability to address matters of substantial public interest or cases involving significant legal questions or constitutional interpretations. This discretion allows the Supreme Court to select cases of utmost importance, granting access to justice and ensuring that critical issues receive due consideration at the apex level, thereby shaping legal precedents and impacting the broader legal landscape of the nation.
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Special leave petitions (SLPs) hold a distinctive status in the legal framework, particularly in India. These petitions are filed before the Supreme Court to seek permission for an appeal, bypassing the usual hierarchy of courts. What makes SLPs special is their discretionary nature, allowing the Supreme Court to exercise its jurisdiction based on the merits of the case.
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