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SC Backlog: The Need to Amend Article 136 & Limit Appeals 

The debate on fettering the power under Article 136 is vital, and must be addressed adequately.

5 min read
SC Backlog: The Need to Amend Article 136 & Limit Appeals 
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The Supreme Court in its judgment in V Vasanthakumar v HC Bhatia, has referred the writ petition which prays for the establishment of a National Court of Appeals (NCA) to a larger Constitutional Bench. The aim is to alleviate the judicial pendency and backlog plaguing the Supreme Court. While differing on the potential solution(s) for this conundrum, all parties, and the Supreme Court itself, have taken cognisance of the abject condition of pendency and backlog of cases in the Apex Court.

A massive influx of Special Leave Petitions (“SLPs”) has been the main contributor to this backlog of cases, and resulted in a docket explosion of critical proportions.

Facts and Statistics

A recent report on the Supreme Court, published by Vidhi Centre for Legal Policy (which has been relied upon by the apex Court in its judgment in Vasanthakumar), discusses this troubling trend of SLPs congesting the Supreme Court’s docket, with empirical data corroborating the gravity of the problem.

Several startling facts have emerged from the data collected, which were reported and analysed in the said report – first, in 2014, approximately 80 percent of the fresh matters instituted before the apex court comprised SLPs; second, contrary to common perception, SLPs have a more than 40 percent acceptance rate, which means that 4 out of every 10 such petitions are accepted and listed for further hearing.

This rate is starkly contradistinctive (and higher) to trends in other law jurisdictions such as US and Canadian Supreme Courts; in fact, the latter had an acceptance rate of 9 percent of appeals filed, which were admitted for hearing before the Canadian Supreme Court, in 2014. The Supreme Court of India duly noted, and emphatically reiterated the extraordinary and exceptional nature of its power to issue special leave, in multiple judgments.

The invocation of Article 136 of the (Indian) Constitution has been far from restrained, demonstrated clearly from the existing data on acceptance rates of SLPs filed. The widely worded provisions under Article 136 of the Constitution are culpable for its rampant misuse.

A recent constitutional bench of the Supreme Court (Mathai v George, Final Order and Judgement dated 11 January, 2016) declined to prescribe any guidelines to govern exercise of this extraordinary power, given the ‘widest possible terms’ wording of Article 136 [See also, Union Carbide Corp & Ors v UOI, 1991 (4) SCC 584]. The flaws of this overreaching provision, aggravated by an indiscriminate invocation of this extraordinary jurisdiction by litigants and lawyers, has triggered an alarming concern regarding judicial backlog and the transforming of the Supreme Court into a regular appellate authority.

(Photo: iStock)

A Comparison With Other Nations

Similar provisions in other constitutions, regarding seeking an apex court’s leave to appeal, have placed inherent restraints to ensure a judicial discipline in the exercise of these powers. To illustrate, the Supreme Court Act in Canada, under Section 40 (1), read with Section 43, prescribes that appellate powers of the Canadian apex court be limited to questions of public importance, or in the interest of justice.

The Australian Judiciary Act, 1903, stipulates similar criteria under Section 35A, for grant of leave to appeal to the Australian High Court. Rule 10 of the US Supreme Court’s Rules also list certain questions wherein the Supreme Court may issue the Writ of Certiorari and hear a matter.

The Indian Constitution however, confers a plenary power on the apex court, to exercise its discretion against any final or interim order, judgment, or award from a tribunal, and to grant special leave to appeal in all such instances. The only limitation read onto this provision is discretionary; that the judges of the Supreme Court may be circumspect.

The degree of backlog in the Supreme Court’s docket warrants a higher degree of control in granting special leave in petitions filed in the Court under Article 136. It is therefore imperative that the provisions of Article 136 be suitably amended, to limit the scope and ambit of exercise of this extraordinary jurisdiction.

  • Special Leave Petition is the power given to the Supreme Court, to grant appeal against any judgement, passed by any Court/tribunal in India.
  • An influx of Special Leave Petitions (“SLPs”) has been the main contributor to this backlog of cases.
  • Canada and Australia have ensured a judicial discipline that have placed restraints on the apex court’s powers but India allows the SC to grant special leave in all instances.
  • Article 136 is not deemed to be a part of the basic structure of the Constitution and amendment is therefore viable.
  • Amendment will allow fixed guidelines to regulate the exercise of SLPs and deter arbitrary use of the same.

The Need for Limitation

The implication of its exceptional usage read into Article 136, must be explicitly and unequivocally stipulated therein by way of a Constitutional amendment. Furthermore, in the event the establishment of the NCA is found to be non-viable within the bounds of the Constitution, it is even more crucial that some limitations are incorporated in Article 136 to stem the excessive influx of SLPs.

Taking into account the submissions made, the Supreme Court, in its judgment in Vasanthakumar, has self-chastised the unrestrained exercise of its extraordinary jurisdiction under Article 136, diminishing its role as the top constitutional court.

Regarding the constitutional vires of such an amendment, it must be stated that Article 136 has not been held to be a part of the basic structure of the Constitution; as such, in terms of the ratio in Kesavananda Bharti, the same maybe amended by the Parliament, in the manner prescribed under Article 368. In this background, it is viable that the Parliament considers a detailed constitutional amendment to the existing provision under Article 136.

Why Amend Article 136

The objective of such an amendment will be two-fold – first, to ensure that the Supreme Court may in time prescribe some guidelines for the exercise of this extraordinary jurisdiction; and secondly, to generate some certainty on parameters for filing SLPs, and deter its frivolous and unbridled abuse. With the Supreme Court poised to assess the viability of setting up the NCA, this debate on fettering the power under Article 136 is vital, and must be addressed adequately.

(Ameen Jauhar is presently working as a Research Fellow for the Judicial Reforms’ Initiative at Vidhi Centre for Legal Policy.)

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Topics:  Supreme Court   Constitution 

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