justice hr khanna memorial lecture on

JUSTICE H.R. KHANNA MEMORIAL LECTURE ON “SUPREME
COURT – JURISDICTION, PROBLEM OF PENDENCY”1
1.
I am extremely fortunate to have this extraordinary honour of being
called upon to deliver Justice H.R. Khanna Memorial Lecture this evening.
2.
Justice Khanna became a living legend with his dissenting judgment
in ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521. In his own
times, there was many a Judge either of the Supreme Court or of some High
Court who was considered more brilliant, more scholarly and more eloquent
than Justice Khanna.
Now it is a matter of history that brilliance
scholarship and eloquence need not necessarily confer upon a judge the
requisite independence and fearlessness to oppose tyranny.
3.
After the Supreme Court delivered the judgment in Kesavananda
Bharati v. State of Kerala, (1973) 4 SCC 225, the Late Shri Nani Ardeshir
Palkhivala published a book titled “Our Constitution Defaced and Defiled”
wherein he commented that by “a strange quirk of fate” the judgment of Justice
Khanna, with which none of the other twelve Judges totally agreed, has
become the law of the land.
4.
Once again none of the other Judges agreed with Justice Khanna’s
judgment in ADM, Jabalpur. All lovers of freedom wished that Justice
Khanna’s judgment in ADM, Jabalpur should have been the law of the land
by another ‘quirk of fate’.
5.
It was a time when individuals, organizations and institutions, indeed
the whole country, were under severe pressure. The State was brazen
enough to assert that the life and liberty of the subjects are purely
dependent upon the executive’s decision either to allow or deny such rights
by suspending the operation of Article 21. According to the State Article 21
is the sole repository of the rights2.
1
Lecture by Hon’ble Mr. Justice J. Chelameswar, Judge, Supreme Court of India, on
Monday, the 8th September 2014 at 4.15 p.m. at Indian Law Institute, New Delhi
2
ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521, at page 577 :
59. The contentions of the Attorney-General are two-fold. First, the legal enforceable right to personal liberty
for violation thereof by the Executive is a fundamental right conferred by the Constitution and is embodied in
Article 21. Second, apart from Article 21 the right to personal liberty against the Executive is neither a common
law right nor a statutory right nor a natural right. He relies on three decisions. The earliest is Girindra Nath
Banerjee v. Birendra Nath Pal. The others are King Emperor v. Sibnath Banerjee and Makhan Singh case. In
the first two decisions it has been held that the right to habeas corpus is only under Section 491 of the Code of
Criminal Procedure. In Makhan Singh case it has been said that this right under Section 491 became embodied
in Article 21. The statutory right under Section 491 of the Code of Criminal Procedure has been deleted from
the new Code of Criminal Procedure which came into effect on April 1, 1974.
6.
Midnight arrests or housebreaking by the police became a matter of
daily occurrence. Very few people had the courage to tell the State that life
and liberty are too fundamental to be a matter of grace. Justice Khanna
was one of the few who did not hesitate to say that. There were lakhs of the
people in this country who wished to say that but they did not really have
the courage to say that. Justice Khanna was holding a responsible
Constitutional office and his voice mattered. Justice Khanna had a stake.
He had to pay the price for his concern for people of this country. He paid it
willingly and knowingly.
7.
It is easy to speak eloquently, high sounding words and propound
lofty principles when they are likely to secure approbation of the majorities
as well as the authorities. But to stand by a principle and displease the
authorities even at the peril of personal risk requires character. Very few
human beings possess such a quality. Justice Khanna demonstrated by his
judgment that he had that quality in abundance.
8.
On 30.04.1976, the New York Times wrote in its editorial:
“If India ever finds its way back to the freedom and democracy
that were proud hallmarks of its first eighteen years as an
independent nation, someone will surely erect a monument to
Justice HR Khanna of the Supreme Court. It was Justice
Khanna who spoke out fearlessly and eloquently for freedom
this week in dissenting from the Court’s decision upholding
the right of Prime Minister Indira Gandhi’s Government to
imprison political opponents at will and without court
hearings... The submission of an independent judiciary to
absolutist government is virtually the last step in the
destruction of a democratic society; and the Indian Supreme
Court’s decision appears close to utter surrender.”
9.
I was a law student in Andhra University when the whole drama of
emergency was unfolding in this country. A good number of University
students were detained under the Maintenance of Internal Security Act. At
least 5 or 6 of my own classmates were detained. Both my neighbours in
the hostel were detained. I was myself under surveillance for sometime. For
that generation of youngsters like me and more particularly students of law,
Justice Khanna was a Hero, an Icon.
10. The decision of the Supreme Court in ADM Jabalpur’s Case is
certainly not one which adds to the glory of the Supreme Court - an
institution designed and claims to be the protector of the fundamental rights
of the subjects. But that judgment is an aberration and is a matter of
history now. Let us hope that there will never be another aberration of that
kind.
2
11. More serious damage to the Supreme Court’s image is caused by the
inability of the Court to dispense justice quickly. The steadily increasing
volume of pending cases and the unacceptably long time which the Supreme
Court takes for the disposal of the matters taken up by it for scrutiny
seriously undermine the efficacy of the institution. From the information
available from the Supreme Court website, as on 31 st July, 2014, there are
35244 matters pending at the admission stage and 30518 matters pending
at the hearing stage, i.e. cases where leave is granted by the Court, making
it a total of 65762 cases. Of those matters, more than 46000 matters are
pending for a period exceeding an year.
12. There are 11 SLPs(Civil)3 which pertain to the period between 1992 to
1995 and 12 SLPs(Criminal)4 pertaining to the period 1996 to 2006, 86 Civil
3
Oldest SLP Civil
S.No.
Reg. No.
Petitioner Name
Respondent Name
1.
SLP(C) No.4367/1992
Shivram Ramayya Yerala & Anr.
State of Maharashtra & Anr.
2.
SLP(C) No. 5204/1992
Pramila Chintamani Mohandas & Ors.
State of Maharashtra & Ors.
3.
SLP(C) No. 5777/1992
Vinodray Harkishandas Sanghavi & Ors
State of Maharashtra & Ors.
4.
SLP(C) No.6191-6192/1992
Krishanlal Mohanlal Thakar (Dead) By LRs
State of Maharashtra & Ors.
5.
SLP(C) No. 7950/1992
Dr. Aspi Framroze Golwalla & Ors.
State of Maharashtra & Ors.
6.
SLP(C) No. 8797/1992
Dharamdas Hargovinddas & Ors.
State of Maharashtra & Ors.
7.
SLP(C) No. 6744/1993
Manju Kacholia
State of Maharashtra & Ors.
8.
SLP(C) No. 12502/1993
Maharaja Mahendra Singh ji
Maharaja Arvind Singhyji & Ors.
9.
SLP(C) No.2303/1995
Mr. J.C. Mehta (HUF) & Ors.
State of Maharashtra & Ors.
10.
SLP(C) No. 13467/1995
Rajkumari Narindersain Sindhwani
Special Land Aqn. Officer & Ors.
4
Oldest SLP (Criminal)
S.No.
Reg. No.
Petitioner Name
Respondent Name
1.
SLP(C)rl No. 1525/1996
UOI & Anr.
VJA Flyinn
2.
SLP(C)rl No. 2718-2719/1999
Saligram Choudhary & Ors.
State of Bihar
3.
SLP(C)rl No.1451/2003
Virendra @ Lilu
State of U.P.
3.
SLP(C)rl No.4409/2003
Yusufkhan Muradkhan Pathan
State of Gujarat & Ors.
5.
SLP(C)rl No.5309/2003
Citizens for Justice & Peace & Anr.
State of Gujarat & Ors.
3
Appeals5 belonging to the period between 1983 to 1995 and 10 Criminal
Appeals6 belonging to 1991 to 1999 still pending, 10 oldest writ petitions
6.
SLP(C)rl No. 3515-3516/2004
Karuna Shankar singh & anr.
State of U.P. & Ors.
7.
SLP(C)rl No. 3865/2004
Sat Kumar
State of U.P.
8.
SLP(C)rl No. 4178-4179/2004
Mohammad Iqbal Khan Ahmed Khan Bloc
`State of Gujarat & Ors.
9.
Crl. A. No.2222/2005
Mahendra Pratap Singh Gill
State of Uttaranchal & Ors.
10.
SLP(C)rl No.1325/2006
Central; Bureau pf Narcotics
Dhan Singh
5
Oldest Civil Appeals
S.No.
Reg. No.
Petitioner Name
Respondent Name
1.
C.A. No. 8607/1983
Sri M Temple & Vigneswar Rep by Trustee
Vijayammal
2.
C.A. No. 1523/1990
Honnamma Dead Thro Proposed LRs & Ors
The State of Karnataka & Ors.
3.
C.A. No. 1524/1990
Annayappa Dead & Ors.
Kannaiah (D) By Lrs
4.
C.A. No. 1525/1990
Honnama Dead Thro Proposed Lrs & Ors.
The State of Karnataka & Ors.
5.
C.A. No. 37/1992
Abhiram Singh
C.D. Commachen (D) By Lrs & Ors.
6.
C.A. No. 5875/1994
Krishna Kumar Singh & Anr.
State of Bihar & Ors.
7.
C.A. No.5876-5890/1994
Bimal Kumar Ishwar & Ors.
State of Bihar & Ors.
8.
C.A. No. 8763/1994
Arjun Flour Mills
State of Orissa & Ors.
9.
C.A. No. 8909/1994
Sambalpur Merchants Asso.
State of Orissa & Ors.
10.
C.A. No. 3533-3595/1995
State of Bihar & Ors.
Subhash Chandra & Ors.
6
Oldest Criminal Appeals
S.No.
Reg. No.
Petitioner Name
Respondent Name
1.
Crl.A. No. 39/1991
Raichand Korshi Shah
Malshi Meghji Charla & Ors.
2.
Crl.A. No. 181/1998
Vilas V Shanghai
Sumermal Mishrimal Bafna & Ors.
3.
Crl.A. No. 210/1998
State of Maharashtra
Sumermal Mishrimal Bafna & Ors.
4.
Crl.A. No. 369/1999
Hiten Prasad Dalal
CBI
5.
Crl.A. No. 372/1999
Mulangi Krishnaswamy Ashok Kumar
CBI
6.
Crl.A. No. 405/1999
Sudhakar Appu Ail
CBI
7.
Crl.A. No.409/1999
Abhay Dharamshi Narottam
CBI, Bombay
8.
Crl.A. No. 410/1999
Chandrashekhar S Raje
CBI
9.
Crl.A. No. 411/1999
S N Ramaswamy
CBI, Bombay
4
(civil)7 pending in the Court belong to the period 1980 to 1985 whereas 10
oldest pending criminal writ petitions8 belong to the period between 2002 to
2006. The details of the ten original suits under Article 131 of the
Constitution of India are as follows:
10.
7
Crl.A. No. 412/1999
K.K. Kapadia
CBI, Bombay
Oldest Writs Civil
S.No.
Reg. No.
Petitioner Name
Respondent Name
1.
W.P.(C) No. 7672/1982
Hans Raj Sharma
State of Jammu & Kashmir & Ors.
2.
W.P.(C) No. 7673/1982
Abdul Karim Banday
UOI & Ors.
3.
W.P.(C) No. 9683-9684/1983
Brahmosmj Education Society
State of WB & Ors.
4.
W.P.(C) No. 740/1986
Central Board of DB Community & Anr.
State of Maharashtra & Anr
5.
W.P.(C) No. 537/1992
Commdr. Sureshwar D Sinha & Ors.
UOI & Ors.
6.
W.P.(C) No. 934/1992
Property Owners’ Asso. & Ors.
State of Maharashtra & Ors.
7.
W.P.(C) No. 559/1994
R.D. Upadhyay
State of AP & ORS.
8.
W.P.(C) No. 725/1994
In Re News Item Published
-
9.
W.P.(C) No. 26/1995
Common Cause A Regd. Society
UOI & Ors.
10.
W.P.(C) No. 202/1995
T.N. Godavarman Thirumulpad
UOI & Ors.
8
Oldest Writs Criminal
S.No.
Reg. No.
Petitioner Name
Respondent Name
1.
W.P.(Crl) No.37-52/2002
Fr. Cedric Prakash & Ors.
State of Gujarat & Ors.
2.
W.P.(Crl) No. 109/2003
National Human Rights Commission
State of Gujarat & Ors.
3.
W.P.(Crl) No. 118/2003
Bilkis Yakub Rasool
State of Gujarat & Ors.
4.
W.P.(Crl) No. 206-210/2003
N Ravi & Ors.
Speaker Legislative Assm. Chennai
5.
W.P.(Crl) No. 216/2003
Yusufkhan Muradkhan Pathan
State of Gujarat
6.
W.P.(Crl) No. 284/2003
Imran Mohamad Salim Dawood
Union of India & Anr.
7.
W.P.(Crl) No. 175/2005
Suram Chand
Union of India & Ors
8.
W.P.(Crl) No. 310/2005
Bhim Singh
Union of India & Ors
9.
W.P.(Crl) No. 319/2005
Citizens Forum Against Corruption
Union of India & Ors
10.
W.P.(Crl) No. 118/2006
R. Chandrashekar Reddy
Union of India & Anr
5
Oldest Original Suits
S.No.
Reg. No.
Petitioner Name
Respondent Name
1
Orignl Suit No.2/1988
State of Assam
Union of India & Ors.
2
Orignl Suit No.1/1989
State of Assam
Union of India & Ors.
3
Orignl Suit No.3/2001
State of Tamil Nadu
State of Karnataka & Ors.
4
Orignl Suit No. 3/2002
State of Tamil Nadu
State of Karnataka & Ors.
5
Orignl Suit No. 5/2003
State of A.P.
State of Karnataka & Ors.
6.
Orignl Suit No. 1/2004
State of U.P.
State of Uttaranchal & Anr
7
Orignl Suit No.2/2004
State of Bihar
State of Jharkhand & Anr
8
Orignl Suit No. 3/2004
State of Bihar
State of Jharkhand & Ors
9
Orignl Suit No.4/2004
State of Maharashtra
Union of India & Anr.
10
Orignl Suit No. 1/2005
State of Jharkhand & Anr Union of India & Ors.
13. One of the frequently heard accusations against the Indian judiciary is
that litigation takes an abnormally long time to attain finality.
The
accusation contains a factually correct statement.
Unfortunately, the
accusers do not have either the time or patience to make an indepth
examination of the reasons for such painfully long timeframe of the litigation
in this country. The most important factors which contribute to the
problem are;
1.
Huge population of this country.
2.
Disproportionately small number of Courts;
3.
Perennially increasing rights and obligations created by (a) more
and more new laws made either by the Parliament or the
Legislatures of the States; (b) contracts between the parties;
4.
Low level efficiency of the Judicial System;
5.
Multi tier appellate system;
6.
Uncertainty of law.
14. The judiciary does not and cannot have any control over the first three
factors mentioned above. It is only the judiciary which must own complete
responsibility for low level efficiency and uncertainty of law. Consequently,
6
they lead to accumulation of arrears resulting in a delayed dispensation of
justice. Though, they are distinct factors, they form a vicious circle-one
leading to the other.
15. In any system of dispute resolution, one of the parties to the dispute
is bound to be unhappy with the decision of the adjudicatory body. Because
there are two parties to every dispute and only one party can succeed and
other party is bound to lose the litigation. If the law provides an opportunity
to the losing party to challenge the correctness of the decision before a
higher appellate forum, the losing party would normally attempt to carry the
matter by way of an appeal. Such attempts are made mainly for two
reasons. Firstly, an honest belief that the adjudication insofar is not
consistent with the correct principles of law; secondly, the possibility of
securing some interim protection during the pendency of the appeal against
the implementation of such adverse decision thereby postponing the day of
unpleasant consequences of the decision.
16. Where there is a constitutional or statutory right of appeal, there is
hardly anything that judiciary can do except to examine the appeal on
merits. But where the appellate jurisdiction (which includes revisionary
jurisdiction) is discretionary, such as, appeal under Section 100 CPC or
revision under Section 115 CPC or under Section 397 CrPC etc., judiciary
has a great responsibility to exercise that jurisdiction with great care and
circumspection. Willingness to exercise discretion for the mere asking is
the culpability of the legal system.
17. The topic chosen by me for this occasion is not a general analysis of
the Laws Delays in this country but “the Supreme Court of India, its
Jurisdiction and Problem of Arrears”. My attempt is to identify the reasons
for such pendency and suggest some possible solutions for the reduction of
the pendency as well as the reduction of the time taken for the disposal of
cases brought to the Supreme Court.
18. It is essential to understand the role of the Supreme Court of India to
understand the problem of arrears and suggest possible solutions.
Recognising the fact that there is always scope for error in any adjudicatory
process, provisions are made for creating appellate jurisdiction in superior
courts.
Superior courts are also invested with certain powers of
administrative control and supervision over the courts from whose decisions
appeals lay to such superior courts.
19. The Indian Constitution creates two tier of constitutional courts – one
at the national level, the Supreme Court and one at the State level, the High
Court. The Supreme Court as well as the High Courts both have original
jurisdiction as well as the appellate jurisdiction conferred on them either by
7
the Constitution or by laws. High Courts under Article 227 9 are invested
with the power of superintendence over all courts and tribunals throughout
the territories in relation to which it exercises jurisdiction. The High Courts
also have administrative control over district courts and courts subordinate
thereto under Article 23510. The Supreme Court of India is the highest court
of the country; highest in the sense that there is no further appeal against
the judgments of the Supreme Court. The jurisdiction of the Supreme Court
is both original as well as the appellate. While the Supreme Court lacks
any such power of superintendence and administrative control over any of
the courts in the country, including the High Courts, the decisions of the
High Courts are made amenable to judicial scrutiny by the Supreme Court.
The Constitution itself prescribes certain parameters on the basis of which
the Supreme Court is to undertake such scrutiny. Article 141 proclaims
that the law declared by the Supreme Court shall be binding on all the
courts within the territory of India.
20. The legal authority provided by Article 141 obliges the Supreme Court
not only to decide the cases brought before it in accordance with the
Constitution and the laws but also to decide in accordance with some well
settled jurisprudential principles. Consistency in the adumbration of such
principles is the factor which provides the moral authority of the Supreme
Court.
21. To understand why such a huge number of matters are pending in the
Supreme Court, it is necessary to analyse and understand two factors. They
are the nature of the jurisdiction of the Supreme Court and various classes
of cases (broadly) which are being brought before the Supreme Court.
22. The Constitution of India, invested the Supreme Court with an
ambitiously large jurisdiction both original and appellate. The jurisdiction
of the Supreme Court is traceable to Articles 32, 131, 132, 133, 134 and
136.
(i)
Article 32 guarantees the right to move the Supreme Court by
appropriate proceedings for the enforcement of the rights conferred by Part
III of the Constitution. Article 32(2) declares that the Supreme Court shall
have power to issue directions or orders or writs including writs in the
nature of Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo
9
227. [(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories
in relation to which it exercises jurisdiction.
10
235. The control over district courts and courts subordinate thereto including the posting and promotion of,
and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to
the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as
taking away from any such person any right of appeal which he may have under the law regulating the
conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with
the conditions of his service prescribed under such law.
8
Warranto, whichever may be appropriate for the enforcement of the rights
conferred under Part III.
(ii) Article 131 of the Constitution provides an exclusive jurisdiction in the
Supreme Court in any dispute between the Government of India and one or
more States or between the Government of India and any State or States on
one side and one or more other states on the other; or between two or more
states11.
(iii) Article 132 provides a right of appeal to the Supreme Court for any
judgment, decree or final order of a High Court in both civil and criminal
proceedings, if the High Court certifies that such a case involves a
substantial question of law as to the interpretation of the Constitution 12.
(iv) Article 133 provides a right of appeal to the Supreme Court from any
judgment, decree or final order in a civil proceeding of a High Court, if the
High Court certifies that such a case involves a substantial question of law
of general importance and also in the opinion of the High Court that such a
question of law needs to the decided by the Supreme Court 13.
11
131. Original jurisdiction of the Supreme Court Subject to the provisions of this Constitution, the Supreme
Court shall, to the exclusion of any other court, have original jurisdiction in any dispute
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one side and one or more other States on the
other; or
(c) between two or more States, if and in so far as the dispute involves any question (whether of law or fact)
on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to
a dispute arising out of any treaty, agreement, covenant, engagements, and or other similar instrument which,
having been entered into or executed before the commencement of this Constitution, continues in operation
after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute
12
132. Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases ( 1 ) An appeal
shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India,
whether in a civil, criminal or other proceeding, if the High Court certifies under Article 134A that the case
involves a substantial question of law as t the interpretation of this Constitution.
(3) Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground
that any such question as aforesaid has been wrongly decided Explanation For the purposes of this article, the
expression final order includes an order declaring an issue which, if decided in favour of the appellant, would
be sufficient for the final disposal of the case
13
133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters
(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a
High Court in the territory of India if the High Court certifies under Article 134A
(a) that the case involves a substantial question of law of general importance; and
(b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.
9
(v) Article 134 provides for a right of appeal against any judgment, final
order or sentence in a criminal proceeding of a High Court, if the High Court
has on appeal, reversed an order of acquittal of an accused person and
sentenced him to death; or the High Court acting as a Court of first instance
by withdrawing for trial before itself any case from any court subordinate to
it and convicts the accused person and sentences him to death14.
23. Notwithstanding the creation of such vast jurisdiction in the Supreme
Court, the makers of the Constitution also thought it fit to make a special
provision under Article 136 vesting an extraordinary discretion in the
Supreme Court to 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 reads as follows:“136. Special leave to appeal by the Supreme Court:
(1) Notwithstanding anything in this Chapter, 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
(2) Nothing in clause (1) shall apply to any judgment,
determination, sentence or order passed or made by any court
or tribunal constituted by or under any law relating to the
Armed Forces”
(2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court under clause ( 1 ) may
urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this
Constitution has been wrongly decided.
(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to
the Supreme Court from the judgment, decree or final order of one Judge of a High Court.
14
134. Appellate jurisdiction of Supreme Court in regard to criminal matters
(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding
of a High Court in the territory of India if the High Court has on appeal reversed an order of acquittal of an
accused person and sentenced him to death; or has withdrawn for trial before itself any case from any court
subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or
(c) certifies under Article 134A that the case is a fit one for appeal to the Supreme Court: Provided that an
appeal under sub clause (c) shall lie subject to such provisions as may be made in that behalf under clause ( 1 )
of Article 145 and to such conditions as the High Court may establish or require
(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from
any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to
such conditions and limitations as may be specified in such law.
10
24. To have an accurate understanding of the major categories of cases
which are brought before the Supreme Court, a detailed research is
required. But a broad classification can be made as follows:(i)
matters arising out of a final decision of the High Court, either in
exercise of its civil appellate jurisdiction or criminal appellate jurisdiction
(including revisional jurisdiction);
(ii)
matters arising out of the final decision of the High Court rendered
under its jurisdiction under Articles 226 & 227 of the Constitution of India
which includes decisions rendered in exercise of an intra court appellate
jurisdiction either letters patent appeals or the appeals created by statutes
providing intra court appeals;
(iii)
matters which are brought before the Supreme Court by way of a
statutory appeal under various enactments like Consumer Protection Act,
the erstwhile TADA Act, Representation of Peoples Act etc.;
(iv)
matters brought before the Supreme Court against the orders passed
in interlocutory proceedings, either civil or criminal, by the High Court or
other fora.
25. In the first five years of the existence of the Supreme Court, less than
a thousand special leave petitions, under Article 136 came to be filed and
most of them were disposed of in the same year. In the next five years, the
average filing though exceeding a thousand, was less than two thousand.
Even then this Court disposed of almost all the matters within a period of
one year from the date of the institution.
The next one decade, the
institution steadily increased and by the end of decade reached the order of
3500 cases. The inflow kept on increasing year by year.
26. By 2010, the figure reached to 34,139 while the pendency at the end
of 2010 rose to 54,562 matters. Though, I could not obtain the complete
data regarding the number of Special Leave Petitions filed and the number
of appeals which came with a certificate from the High Courts. The data for
the years 1994 to 2013 is as follows:Year
Number
of
SLPs Number
of
Appeals
Filed/registered
with
certificate
i.e.
[SLP(C) + SLP(Crl.)]
appeals registered but
were not converted
1994
18396
560
1995
21409
1097
1996
17721
584
1997
18438
590
11
1998
17607
599
1999
16786
348
2000
18032
335
2001
18287
281
2002
20563
274
2003
22353
316
2004
23378
375
2005
22860
321
2006
27934
330
2007
29950
257
2008
31226
244
2009
34730
189
2010
34139
257
2011
32667
238
2012
34011
193
2013
32476
213
27. It can be seen from the above, while the frequency of invocation of
Article 136 jurisdiction has progressively increased over the last six decades,
the number of appeals which come to the Supreme Court with the certificate
from the High Court has steadily declined.
28. From the information I could secure - from 1994 to 2014, a total of
5,08,665 SLPs are registered in the Supreme Court out of which in lakh and
thirty thousand matters leave was granted while for the same period of 20
years, a total number of appeals which reached the Supreme Court with a
certificate from the High Court is only 7696. As on today the total number
of matters pending in the Supreme Court is around 65,000. On the other
hand, the strength of the Supreme Court in 1950 was only 6 and it was
increased to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986 and 31 in 2008.
Notwithstanding, the periodic enhancement of the strength of the Supreme
Court, the pendency level steadily increased. The oldest appeal 15 pending in
15
Civil Appeal No.8607 of 1983
12
the Supreme Court is of 1983 and the oldest SLP16 as on today is of the year
1992. Though, it is difficult without conducting some amount of research to
determine what is the average period of pendency of a matter once it reaches
the Supreme Court. It can safely be conjectured that it should be around
five years.
29. All of us know our legal system. Litigation, both civil and criminal
undergoes minimum of two levels of scrutiny before the matter is brought to
the Supreme Court. In some of the matters, even 3 to 4 levels of scrutiny
are available before the matter is brought to the Supreme Court. In spite of
such scrutiny at various levels if a matter is brought to the Supreme Court
and the Supreme Court is willing to exercise its discretionary jurisdiction.
In the recent years, there is a steady increase in the inflow of matters before
the Supreme Court against interlocutory proceedings. If we take an example
of bail applications, matters where bail is either granted or declined during
the pendency of trial or during the pendency of appeals before the High
Court is steadily increasing. In the month of August 2014, the Supreme
Court registered 122 bail applications. Similarly, special leave petitions filed
against the orders of the High Court either granting an interim order or
declining to grant an interim order. It is difficult to find out the exact
number of matters in this class unless a thorough research is conducted.
30. Matters arising under Section 138 of the Negotiable Instruments Act
also make their way to the Supreme Court. In these matters, the Supreme
Court becomes the fourth appellate Court. In a good number of matters,
they are settled out of the Court while the matter is pending in the Supreme
Court.
31. In the 1st two decades of the existence of the Supreme Court, the
Court took up for scrutiny mostly those matters which were brought before
it by a certificate of the High Court either under Article 132 or 133, apart
from those appeals in which a right of appeal such as the one created under
Article 134 exists. The Court emphatically discouraged the indiscriminate
invocation of Article 13617.
The Supreme Court has cautioned the High
Courts against granting the certificates in a casual manner.
16
17
S.L.P.(C) No. 4367 of 1992
Aswini Kumar Ghose and Anr. Vs. Arabinda Bose and Anr. [AIR 1952 SC 369]
Para 70. … The petition, however, has been presented before us as an application under Article 136 of the
Constitution for special leave to appeal from the judgment of the Special Bench of the Calcutta High Court. We
have been pressed to proceed with the matter on the footing as if special leave to appeal has been given and the
delay in the presentation thereof has been condoned by this Court. I deprecate this suggestion, for I do not desire
to encourage the belief that an intending appellant who has not applied for or obtained the leave of the High
Court and who does not say a word by way of explanation in the petition as to why be did not apply to the High
Court and as to why there has been such delay in applying to this Court should nevertheless get special leave
from this Court for the mere asking. As, however, the matter has been proceeded with as an appeal, I express my
views on the questions that have been canvassed before us.
Management of Hindustan Commercial Bank Ltd., Kanpur Vs. Bhagwan Dass [ AIR 1965 SC 1142] :
13
32. Somewhere down the line the Supreme Court relaxed the rigours of
scrutiny. Very rarely, nowadays, we come across appeals coming to the
Supreme Court with a certificate from the High Court. A losing party in the
High Court does not even make an attempt to secure the leave. Effectively
Articles 132 and 133 are reduced “to something on paper”.
33. The law declared by the Supreme Court in Management of
Hindustan Commercial Bank Ltd., Kanpur v. Bhagwan Dass, AIR 1965
SC 1142 was that normally a party should approach the Supreme Court
with a certificate of the High Court. Only in exceptional circumstances
would the Supreme Court relax that requirement is simply ignored.
34. The exception has become the rule now. The result is more and more
unsuccessful People get encouraged to have another go at it by approaching
the Supreme Court. In most of the cases, what is sought is a simple second
or third “guess on facts” or take another plausible view of the matter.
35. The only justification for such willingness of the Supreme Court to
liberally examine such large number of matters brought before it can be that
the efficiency level of the Indian legal system is very low or at least the
Supreme Court believes it to be so. In the alternative the parameters on
which discretion of the highest Court is to be exercised to undertake the
scrutiny of correctness of the matter brought before it are very imprecise.
36. The High Courts in this country are as much constitutional courts as
the Supreme Court of India. The Supreme Court as well as the High Courts
owe their existence to the Constitution.
The Constitution expressly
conferred the power of superintendence on the High Courts over the courts
and Tribunals functioning within the territory over which the High Courts
exercise jurisdiction. Such authority of superintendence is not conferred on
the Supreme Court. It is a different matter that over a period of 60 years of
the working of the Constitution, quite a few of the constitutional values have
been forgotten in the various aspects of the working of the Constitution.
Para 3. Now, no appeal lay to this Court under Article 133 of the Constitution from the judgment of the
learned Single Judge of the Punjab High Court. But as the appeal involves a substantial question of law as to the
interpretation of Article 227 of the Constitution, it would have lain on a certificate issued by the High Court
under Article 132 of the Constitution. The appellant did not move the High Court for the issue of the certificate,
though it had earlier presented a petition praying for the grant of the certificate on this footing. In view of Order
13 Rule 2, no application to this Court for special leave to appeal in this case could be entertained, unless the
High Court had been first moved and had refused to grant the certificate. Under Order 45 Rule 1 of the Supreme
Court Rules, this Court could, for sufficient reasons shown, excuse the appellant from compliance with the
requirements of Order 13 Rule 2. Uptil now, the appellant has not applied to this Court for exemption from
compliance with Order 13 Rule 2. In the absence of any order of exemption, Order 13 Rule 2 applies with full
force, and peremptorily enjoins that no application to this Court for special leave to appeal shall be entertained.
The rule is mandatory. The special leave to appeal being obtained in contravention of the rule is liable to be
revoked.
.
14
Power has a natural tendency to expand and judicial power is not an
exception to it.
37. If a particular conclusion reached by a High Court in a given case is
not wholly inconsistent with the Constitution or some law made by the
Parliament, in my opinion, no great harm befalls this country by not
interfering with such a conclusion only on the ground that another possible
view of the matter can be taken.
But that is the way authority is asserted
to demonstrate to the High Courts that they are constitutional courts of
slightly inferior variety.
38. Even in matters where the High Court either declined to condone the
delay in preferring either an appeal or application or matters where the High
Court dismissed a matter for default and declined to restore the same,
special leave petitions are filed and sometimes interfered with by the
Supreme Court. The question is not that in how many of such matters the
Supreme Court really interferes. May be the percentage is low. But the very
hope that the Supreme Court might interfere makes the unsuccessful
parties before the High Court take a chance and approach the Supreme
Court adding to the burden of the Supreme Court. This is because the
Supreme Court sits in benches of two and three judges, and different Courts
obviously have different approaches to the same problem.
39. Coming to matters where the rights and obligations of the parties are
purely founded upon a local law, i.e. a law made by the legislature of a State
etc, I do not see any harm befalling the nation, if the judgment of the High
Court is to become final. At least in these areas of litigation, the time worn
cliché “we are not final because we are infallible, but we are infallible only
because we are final” might as well be extended to the decisions of High
Courts which are equally constitutional courts.
40. After all there is no guarantee that every one of the judgments of the
highest court of any country are absolutely correct. Laurence H. Tribe, a
noted authority on Constitutional Law of America remarked that:
“I do not regard the rulings of the Supreme Court as synonymous with
constitutional truth” ; “the court that held slaves to be non-persons, separate to
be equal, and pregnancy to be non-sex related can hardly be deemed as final
or infallible”.
No doubt that criticism is scathing though justified.
Tribe lies in his observations:
The profundity of Prof.
“such passing finality as judicial pronouncements possess, is an essential
compromise between constitutional order and class”
41. I do not believe that the efficiency level of the Indian legal system in
arriving at the correct conclusion in a given case is really low. Simple proof
15
of my statement can be obtained by an examination of the success rate of
the matters in which the Supreme Court grants either leave or disposes of a
matter after hearing the respondents even without granting leave in an
application under Article 136. I do not have the exact statistics but from my
general observation, I can safely state that the success rate is not very high.
Even in those limited number of cases where the Supreme Court eventually
reverses the judgment of the High Court, the reversal is not (in most of the
cases) on the basis of any substantial difference of opinion as to the
interpretation of either the constitution or the law. It is only on the basis
that a different view can be taken either on the facts of the case or “the
peculiar facts of the case”!
42. If that is the only legal basis for interference with the view taken by a
constitutional court (the High Court), arrears are bound to accumulate in
the Supreme Court.
43.
I am only tempted to quote Justice Frankfurter in Rogers v. Missouri
Pacific Railroad Co., 352 US 500. In his dissenting judgment where the
majority granted certiorari, Justice Frankfurter observed as follows:
“In any event, the Court in these four cases has merely
reviewed evidence that has already been reviewed by two lower
courts, and in so doing it ignores its own strictures to the bar
that “We do not grant a certiorari to review evidence and
discuss specific facts.” United States v. Johnston 268 US 220,
227, 45 S.Ct. 496, 497. * * * If the Court does not abide by its
Rules, how can it expect the bar to do so? Standards must be
enforced to be respected. If they are merely left as something
on paper, they might as well be written on water.”
44. He was of the opinion that by undertaking that kind of indiscriminate
scrutiny of undeserving cases, the Court would be “doing injustice” to the
significant and important cases on the calendar. Justice Frankfurter
declared further that “unless the Court vigorously enforces its own criteria for granting review of
cases, it will inevitably face an accumulation of arrears or will dispose of its
essential business in too hurried and too shallow a way”.
45. Justice Frankfurter’s prophecy has unfortunately come true at least in
the context of the Indian Supreme Court.
46. What are the reasons which prompt the Supreme Court to undertake
such indiscriminate scrutiny of the large number of matters brought before
16
it? We have already noticed that in the year 2013, 32476 SLPs were filed
and in the year 2012, it was 34011. It is not only in this country that such
a huge number of cases are brought before the highest Court. The United
States Supreme Court received approximately 8000 cases in the year 2007.
It is a huge number in the context of the population of the US which is
319.9 million in 2012. While the figure was 5144 for the year 1980 and
1321 in 1950, of which only 1.1% cases are taken up for a thorough
scrutiny, the rest of them are rejected at the threshold on a preliminary
scrutiny. In contradistinction, the Supreme Court of India rejected only 15%
of cases (approximately) brought before it (based on the last 3 years
statistics)18. Let us examine the reasons which prompt the Supreme Court
to take up such a high percentage of cases for examination. To my mind,
the reasons appear to be these:
47. A lingering doubt in the minds of the Judges of the Supreme Court
that the Judges of the High Court might have committed an error. A doubt
based on an suspicion of the competence levels of the Judges of the High
Court. If, really, the Supreme Court believes that the competence level of
the High Court Judges is not up to the expected standard, then the remedy
is surely not examining the correctness of each and every judgment of the
High Court brought before the Supreme Court, but to improve the
recruitment process of the Judges of the High Court and choose more
competent people.
48. The second reason is non-adherence to the Constitutional mandate of
taking up only those cases which are certified by the High Courts to be
cases fit for consideration by the Supreme Court. The sooner both the
Bench and Bar realise that the Supreme Court is not another court of
appeal to correct every error of fact or law committed by the High Courts but
the highest Court of the country meant only to settle questions of law which
are of far reaching consequences for the whole nation, it is better for the
Supreme Court. In the anxiety to do “complete justice” in every case which
comes to its notice, the Supreme Court is unwittingly becoming a victim of
its own collective compassion. While a large number of matters which are
referred to Constitution Benches are pending for number of years, most of
the time of the apex Court is spent on determining the correctness of the
judgments rendered by the High Courts which may not have any
18
Institution
Dismissed in limine
2011 = 77,090
12,248
2012 = 76,917
12,163
2013 = 76,742
12,872
17
significance for the country except for the individuals involved in those
cases.
49. One more reason to my mind is that in the last 64 years, slowly, some
of the best legal minds at the Bar migrated to Delhi. The result is the High
Courts receive, in most of the cases, assistance less than the best. As a
consequence, when a matter is brought to the Supreme Court, accomplished
lawyers are always able to sow a seed of doubt that the judgment under
appeal requires a further scrutiny. However, on a thorough examination of
the matter at the final hearing stage, in most of the cases such doubt
entertained at the stage of admission is discovered to be unsustainable or
the lacuna is inconsequential and, therefore, does not warrant interference
by the Supreme Court.
50. Uncertainty in the legal position is another factor which enormously
contributes to the pendency of litigation at every stage.
51. The very fact that the Supreme Court sits in division benches has a
potential of creating any amount of uncertainty in law. The Supreme Court
in its recent judgment in Mohd. Arif @ Ashfaq v. The Registrar, Supreme
Court of India & Others, Writ Petition (Crl.) No.77 of 2014 decided on 2 nd
September 2014, recognized the possibility of two trained legal minds
reaching different conclusions, coupled with the fact that the ever increasing
pressure of work in the Supreme Court makes it virtually impossible for the
Judges to be absolutely precise in their expression while deciding cases
creates any amount of uncertainty in law. Such uncertainty is always
utilized by clever lawyers to invite the Supreme Court to examine the
correctness of the conclusion recorded by the High Court in more and more
cases.
52. One more significant factor which contributes to the heavy inflow of
cases to the Supreme Court is that a losing party is very rarely made to bear
the costs of the litigation of his opponent. All of us know the enormous
expenditure a party is required to incur to fight a case in the Supreme
Court. But the successful party most of the time is not enabled by law to
recover the actual costs incurred by him. It is always profitable for a party
with a weak case after losing in the High Court to make an attempt to come
to the Supreme Court to fight one more round of litigation. There is always
a chance of success. Even if he fails, he fails with no further addition of
loss.
*****
18

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