[2010) 3 S.C.R. 533

MATHAI @JOBY

GEORGE & ANR. (Special Leave Petition (C) No. 7105 of 2010)

MARCH 19, 2010

[MARKANDEY KAT JU AND R.M. LODHA, JJ.]

CONSTITUTION OF IND/A, 1950:

Article 136 and 145(3) - Discretion of Supreme Court to c entertain petitions under Article 136 - Matter referred to Constitution Bench - Petition filed against the order of High Court dismissing writ petition challenging the order of trial court rejecting the application of the defendant in a suit, seeking to send the will for another expert opinion as he was 0 not satisfied with the first expert report - HELD: Prima facie such special leave petitions should not be entertained by Supreme Court - Article 136, like Article , 226, is a discretionary remedy and the Supreme Court is not bound to interfere even if there is an error of law or fact in the order E impugned before it - Article 136 was never meant to be an ordinary forum of appeal at all like s.96 or even s.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 F questions, questions of law of general importance or where grave injustice had been done - However, the Court has been converted practically into an ordinary appellate court which was never the intention of Article 136 - The time has now come when an authoritative decision by a Constitution Bench G 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

533 H

A 136 should be entertained - Since the matter involves interpretation of Article 136, it should be decided by a Constitution Bench in view of Article 145(3) of the Constitution

- Let the papers of this case be laid before Hon'ble the

1 Chief Justice of India for constitution of an appropriate Bench, to B decide which kinds of cases should be entertained under Article 136, and/or for /ayingdown some broad guidelines in this connection. [Para 4, 5, 14, 23 and 27)

N. Suriyaka/a vs. A. Mohandoss & Ors. 2007 (2) C SCR 419; Bengal Chemical & Pharmaceutical Works Ltd.

Vs Their Employees 1959 AIR 633= 1959 (2) Suppl.

SCR 136; Kunhayammed & Ors. Vs State of Kera/a & Anr. 2000 AIR 2587= 2000 (1) suppl. SCR 538; State of Bombay vs Rusy Mistry 1960 AIR 391; Municipal Board Pratabgarh vs Mmahendra Singh Chawla 1982 (3) SCC D 331; Handra Singh vs State of Rajasthan & Anr. 2003 AIR 2889= 2003 (1) Suppl. SCR 674; Ram Saran Das & Bros. Vs CIT Calcutta 1962 AIR 1326=1962 (1) Suppl.

SCR 276; Pritam Singh vs. State 1950 SCR 453; Tirupati Bafaji Developers Pvt. Ltd. & Ors. Vs. State of Bihar & Ors.

E 2004 AIR 2351= 2004 (1) Suppl. SCR 494; Jamshed Hormusji Wadia vs. Board of Trustees Port of Mumbai & Anr. 2004AIR 1815= 2004 (1) SCR 483; Narpat Singh etc. etc.

Vs Jaipur Development Authority & Anr. 2002 AIR 2036= 2002 (3) SCR 365; Ashok Nagar Welfare F Association & Anr.

Vs R.K. Sharma & Ors. 2002 AIR 335=2001 (5) Suppl. SCR 662; Bihar Legal Support Society New Ode/hi vs. Chief Justice of India

1987 AIR 38= 1987(1) SCR 295, relied on.

G R.K. Jain Memorial Lecture delivered by K.K. Venugopa/ on 30.1.2010; and Article by Justice K.K. Mathew published in 1982(3) sec (Jour) 1, referred to.

Case Law Reference:

2007 (2) SCR 419 relied on para 6

1959 (2) Suppl. SCR 136 relied on para 8 A

2000 (1) suppl. SCR 538 relied on para 8

1960 AIR 391 relied on para 8

1982 < 3) sec 331 relied on para 8 B 2003 (1) Suppl. SCR 674 relied on para 8

1962 (1) Suppl. SCR 276 relied on para 9

1950 SCR 453 relied on para 9 c 2004 (1) Suppl. SCR494 relied on para 10

2004 (1) SCR 483 relied on para 11

2002 (3) SCR 365 relied on para 12

2001 (5) Suppl. SCR 662 reliedon para 13 D

1987(1) SCR 295 relied on . para 17

CIVIL APPELLATE JURISDICTION: SLP (Civil) No. 7105 E of 2010.

From the Judgment & Order dated 9.11.2009 .of the High Court of Kerala at Ernakulam in WP (C) No. 31726 of 2009.

C.N. Sree Kumar for the Petitioner.

The following Order of the Court was delivered

ORDER

1. Heard learned counsel for the petitioner.

2. This special leave petition has been filed against the judgment and order dated 09.11.2009 of the High Court of

Kerala Ernakulam in W.P.(C) No. 31726/2009. By the impugned order the writ petition filed by the petitioner herein has been disposed off H

3. The petitioner herein is one of the defendants in a suit in which he has disputed the genuineness of a Will dated 13.01.2006. The Will in question was sent for expert opinion to the Forensic Science Laboratory, Thiruvananthapurm. The Forensic Science Laboratory submitted its report to the Trial B Court. Not satisfied with the report the Petitioner herein wanted another opinion from another expert. The said prayer of the petitioner was rejec.ted by the Trial Court and the writ petition filed against the order of the Trial Court has been dismissed by the impugned order. Against the High Court's order the SLP c has been filed. -

4. We are prima facie of the opinion that such special leave petitions should not be entertained by this Court. Now-adays all kinds of special leave petitions are being filed in this Court against every kind of order. For instance, if in a suit the D 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 E 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 F petitions should be entertained under Article 136 of the Constitution.

5. Article 136, no doubt, states that the Supreme Court may in its discretion, grant special leave to appeal from any G judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. However, it is 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 H

otherwise this Court will be flooded (and in fact is being flooded) A 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. It may be mentioned that Article 136, like Article 226, is a discretionary remedy, and this Court is not bound to interfere even if there Js B an error of law or fact in the impugned order.

6. This Court in the case of N. Suriyakala vs. A.

Mohandoss and Others (2007) 9 sec 196 observed as under:

"In this connection we may clarify the scope of Article 136.

C Article 136 of the Constitution is not a regular forum of appeal at all. It is a residual provision which enables the Supreme Court to interfere with the judgment or order of any court or tribunal in India in its discretion." D

7. Article 136(1) of the Constitution states:

"Article 136(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 E by any court or tribunal in the territory of India."

8. The use of the words "in its discretion" in Article 136 !early indicates that Article 136 does not confer a right of appeal upon any party but merely vests a discretion in the Supreme F Court to interfere in exceptional cases vide Mis. Bengal Chemical & Pharmaceutical Works Ltd. vs. Their Employees AIR 1959 SC 633(635), Kunhayammed & Ors. vs. State of Kera/a & Anr. 2000(6) SCC 359 and State of Bombay vs.

Rusy Mistry AIR 1960 SC 391(395). In Municipal Board, G Pratabgarh & Anr. vs. Mahendra Singh Chawla & Ors. 1982(3) SCC 331 and in Chandra Singh vs. State of Rajasthan AIR 2003 SC 2889 (vide para 43 & 45), this Court observed that under Article 136 it was not bound to set aside an order even if it was not in conformity with law, since the power under Article H

A 136 was discretionary.

9. Though the discretionary power vested in the Supreme Court under Article 136 is apparently not subject to any

limitation, the Court has itself imposed certain limitations upon

8 its own powers vide Ram Saran Das and Bros. vs.

Commercial Tax Officer, Calcutta & Ors. Al R 1962 SC 1326(1328) and Kunhayammed vs. State of Kera/a 2000(6) SCC 359 (para 13). The Supreme Court has laid down that this power has to be exercised sparingly and in exceptional cases C only. Thus, in Pritam Singh vs. The State AIR 1950 SC 169, this Court obseNed (vide para 9) as under :-

"On a careful examination of Art.136 along with the preceding article, it seems clear that the wide discretionary powar with which this Court is invested under is to be D exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this article."

10. In Tirupati Balaji Developers Pvt. Ltd. vs. State of Bihar AIR 2004 SC 2351, this Court obseNed about Article 136 as under:-

"It is an extraordinary jurisdiction vested by the Constitution in the Supreme Court with implicit trust and faith, and F extraordinary care arid caution has to be obseNed in the exercise of this jurisdiction. Article 136 does not confer a right of appeal on a party but vests a vast discretion in the Supreme Court meant to be exercised on the considerations of justice, call of duty and eradicating G injust(ce."

11. In Jamshed Hormusji Wadia vs. Board of Trustees, Port of Mumbai Al R 2004 SC 1815 (para 33), this Court obseNed as under :-

H "The discretionary power of the Supreme Court is plenary

in the sense that there are no words in Article 136 itself A qualifying that power. The very conferment of the discretionary power defies any attempt at exhaustive definition of such power. The power is permitted to be invoked not in a routine fashion but. in very exceptional circumstances as when a question of law of general public B importance arises or a decision sought to be impugned before the Supreme Court shocks the onscience. This overriding and exceptional power has l:.3en vested in the Supreme Court to be exercised sparingly and only in furtherance of the cause of justice in the Supreme Court c in exceptional cases only when special circumstances are shown to exist."

In the same decision this Court also observed as under:-

"It is well settled that Article 136 of the Constitution does D not confer a right to appeal on any party; it confers a discretionary power on the Supreme Court to interfere in suitable cases. Article 136 cannot be read as conferring a right on anyone to prefer an appeal to this Court; it only confers a right on a party to file an application seeking leave to appeal and a discretion on the Court to grant or not to grant such leave in its wisdom. When no law confers a statutory right to appeal on a party, Article 136 cannot be called in aid to spell out such a right. The Supreme Court would not under Article 136 constitute itself into a tribunal or court just settling disputes and reduce itself k> a mere court of error. The power under Article 136 is an extraordinary power to be exercised in rare and exceptional cases and on well-known principles."

12. In Narpat Singh vs. Jaipur Development Authority G

(2002) 4 sec 666, this Court observed as under :-

"The exercise of jurisdiction conferred by 'Art.136 of the Constitution on the Supreme Court is discretionary. It does not confer a right to appeal on a party to litigation; it only H

A confers a discretionary power of widest amplitude on the Sµpreme Court to be exercised for satisfying the demands of }u~e. On one hand, it is an exceptional power to be exercised sparingly, with caution and care and to remedy extraordinary situations or situations occasioning gross B failure of justice; on the other hand, it is an overriding power whe_reunder the Court may generously step in to impart justice and remedy injustice."

13. In Ashok Nagar Welfare Association vs. R.K. Sharma AIR 2002 SC 335, this Court observed that even in cases C where special leave is granted, the discretionary power vested in the Court continues to remain with the Court even at the stage when the appeal comes up for hearing.

14. Now-a-days it has become a practice of filing SLPs D against all kinds of orders of the High Court or other authorities without realizing the scope of Article 136. Hence 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 E 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 F 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 G Court has limited time at its disposal and it cannot be expected to hear every kind _of dispute.

15. Mr. K.K. Venugopal, Senior Advocate and a very respected lawyer of this Court in his R.K. Jain Memorial Lecture delivered on 30.01.2010 has pointed out that an H alarming state of affairs has developed in this Court because

this Court has gradually converted itself into a mere Court of A Appeal which has sought to correct every error which it finds in the judgments of the High Courts of the country as well as the vast number of tribunals. Mr. Venugopal has further observed that this Court has strayed from its original character as a Constitutional Court and the Apex Court of the country.

B He further observed that if the Apex Court seeks to deal with all kinds of cas.es, it necessarily has to accumulate vast arrears over a period oftime wnjch it will be impossible to clear in any foreseeable future. According to him, this is a self-inflicted injury, which is the cause of the malaise which has gradually G eroded the confidence of the litigants in the Apex Court of the country, mainly because of its failure to hear and dispose of cases within a reasonable period of time. He has further observed that it is a great tragedy to find that cases which have been listed for hearing years back are yet to be heard. He has 0 further observed as under :

"We have, however, to sympathize with the judges. They are struggling with an unbearable burden. The judges spend late nights trying to read briefs for a Monday or a Friday. When each of the 13 Divisions or Benches have E to dispose off about 60 cases in a day, the functioning of. the Supreme Court of India is a far cry from what should be desiderata for disposal of cases in a calm and detached atmosphere. The Judges rarely have the leisure to ponder over the arguments addressed to the court and F finally to deliver a path-breaking, outstanding and classic judgment. All this is impossible of attainment to a Court

oppressed by the burden of a huge backlog of cases. The constant pressure by counsel and the clients for an early date of hearing and a need to adjourn final hearings which G are listed, perforce, on a miscellaneous day i.e. Monday or a Friday, where the Court finds that it has no time to deal with those cases, not only puts a strain on the Court, but also a huge financial burden on the litigant. I wonder what a lawyer practising in 1950 would feel if he were today H

to enter the Supreme Court premises on a Monday or a Friday. He would be appalled at the huge crowd of lawyers and clients thronging the corridors, where one finds it extremely difficult to push one's way through the crowd to reach the Court hall. When he enters the Court hall he finds an equally heavy crowd of lawyers blocking his way. I do not think that any of the senior counsel practicing in the Supreme Court, during the first 3-4 decades of the existence of the Court, would be able to relate to the manner in which we as counsel argue cases today. In matters involving very heavy stakes, 4-5 Senior Advocates should be briefed on either side, all of whom would be standing up at the same time and addressing the court, sometimes at the highest pitch possible.

All these are aberrations in the functioning of an Apex Court of any country."

16. Mr. Venugopal has pointed out that in the year 1997 there were only 19,000 pending cases in this Court but now, there are over 55,000 pending cases and in a few years time E the pendency will cross one lakh cases. In 2009 almost 70,000

cases were filed in this Court of which an overwhelming number were Special Leave Petitions under Article 136. At present all these cases have to be heard orally, whereas the U.S. Supreme Court hears only about 100 to 120 cases every year and the F Canadian Supreme Court hears only 60 cases per year.

17. In Bihar Legal Support Society vs. Chief of Justice of India and Anr. (1986) 4 SCC 767 (vide para 3) a Constitution Bench of this Court observed as under:-

G "It may, however, be pointed out that this Court was never intended to be a regular cow't of appeal against orders made by the High Court or the sessions court or the magistrates. It was created for the purpose of laying down the law for the entire country ............... It is not every case H where the apex court finds that some injustice has been

done that it would grant special leave and interfere. That A would be converting the apex court into a regular c:; ourt of appeal and moreover, by so doing, the apex courtwould soon be reduced to a position where it will find itsel!_l{pable to remedy any injustice at all, on account of theji:e!nlendous backlog of cases which is bound to accumufote. We must B " realize that in the vast majority of qase&the High Courts

~ must become final even if they are wrong".

18. In this connection Paul Freund has set out the opinion of Mr. Justice Brandeis', the celebrated.Judge of the U.S.

C Supreme Court in the following words: '

" ... he was a firm believer in limiting te jurisdiction of the Supreme Court on every front as he-would not be seduced by the Quixotic temptation to right every fancied wrong which was paraded before him ....... Husbanding his time D and energies as if the next day were to be his last, he steeled himself, like a scientist in the sJ; irvice of man, against. the enervating distraction of the countless tragedies he was not meant to relieve. His concern for jurisdictional and procedural limits reflected, on the E technical level, an essentially stoic philosophy. For like Epictetus, he recognized 'the impropriety of being emotionally affected by what is not under one'cs control'.

The only way found practicable or acceptable in this country F (U.S.A.) for keeping the volume of cases within the capacity of a court of last resort is to allow the intermediate courts of appeal finally to settle all cases that are of consequence only to parties. This reserves to the court of last resort only questions,,9n1 which lower courts are in conflict or those of generafTri'fportance to the law." G

19. Justice K.K. Mathew, an eminent Judge of this Court, in an article published in (1982) 3 sec (Jour) 1, has referred to the opinion of Mr. Justice Frankfurter, the renowned Judge of the U.S. Supreme Court as follows : H

"The function of the Supreme Court, according to Justice Frankfurter, was to expound and stabilize principles of law, to pass upon constitutional and other important questions of law for the public benefit and to preserve uniformity of decision among the intermediate courts of appeal. The time and attention and the energy of the court should be devoted to matters of large public concern and they should not be consumed by matters of less concern, without special general interest, merely because the litigant wants to have the court of last resort pass upon his right. The function of the Supreme Court was conceived to be, not to remedying of a particular litigant's wrong, but the consideration of cases whose decision involved principles, the application of which were of wide public or governmental interest and which ought to be authoritatively declared by tile final court.

Without adequate study, reflection and discussion on the part of judges, there could not be that fruitful interchange of minds which was indispensable to thoughtful, unhurried decision and its formulation in learned and impressive opinions and therefore Justice Frankfurter considered it imperative that the docket of the court be kept down so that its volume did not preclude wise adjudication. He was of the view that any case which did not rise to the significance of inescapability in meeting the responsibilities vested in the Supreme Court had to be rigorously excluded from consideration".

20. According to Justice Mathew, the Supreme Court, to remain effective, must continue to decide only those cases which present questions whose resolution will have immediate importance far beyond the particular facts and parties involved.

G It is Justice Mathew's opinion that -

"To say that no litigant should be turned out of the Supreme Court so long as he has a grievance may be good populistic propaganda but the consequence of accepting such a demand would surely defeat the great purpose for

which the Court was established under our constitutional A system. It is high time we recognize the need for the

Supreme Court to entertain under Article 136 only those cases which measure up to the significance of the national or public importance. The effort, then, must therefore be to voluntarily cut the coat of jurisdiction a according to the cloth of importance of the question and not to expand the same with a view to satisfy every litigant who has the means to pursue his cause."

21. Mr. Venugopal has suggested the following categories C of cases which alone should be entertained under Article 136 of the Constitution.

(i) All matters involving substantial questions of law

relating to the interpretation of the Constitution of India; D

(ii) All matters of national or public importance;

(iii) Validity of laws, Central and State;

(iv) After Kesavananda Bharati, (1973) 4 SCC 217, the E judicial review of Constitutional Amendments; and

(v) To settle differences of opinion of important issues of law between High Courts.

22. We are of the opinion that two additional categories F of cases can be added to the above list, namely (i) where the Court is satisfied that there has been a grave miscarriage of justice and (ii) where a fundamental right of a persor. has prima facie been violated. However, it is for the Constitution Bench to which we are referring this matter to decide what are the G kinds of cases in which discretion under Article 136 should be exercised.

23. In our opinion, the time has now come when an authoritative decision by a Constitution Bench should lay down H

A 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 B after some time will collapse under its own burden .

. 24. It may be mentioned that in Pritam Singh vs. The State AIR 1950 S.C. 169 a Constitution Bench of this Court observed (vide para 9) that "a more or less uniform standard should be C adopted in granting Special Leave". Unfortunately, despite this observation no such uniform standard has been laid down by this Court, with the result that grant of Special Leave has become, as Mr. Setalvad pointed out in his book My Life', a gamble. This is not a desirable state of affairs as there should be some uniformity in the approach of the different benches of D this Court. Though Article 136 no doubt confers a discretion on the Court, judicial discretion, as Lord Mansfield stated in classic terms in the case of John Wilkes, (1770) 4 Burr 2528 "means sound discretion guided by law. It must be governed by rule,

E not humour: it must not be arbitrary, vague and fanciful"

25. The Apex Court lays down the law for the whole country and it should have more time to deliberate upon the cases it hears before rendering judgment as Mr. Justice Frankfurter observed. However, sadly the position today is that it is under F such pressure because of the immense volume of cases in the Court that Judges do not get sufficient time to deliberate over the cases, which they deserve, and this is bound to affect the quality of our judgments.

26. Let notice issue to the respondents. Issue notice also G to the Supreme Court Bar Association, Bar Council of India and the Supreme Court-Advocates-on-Record Association.

27. Since the matter involves interpretation of Article 136 of the Constitution, we feel that it should be decided by a H Constitution Bench in view of Article 145(3) of the Constitution.

Let the papers of this case be laid before Hon'ble the Chief A Justice of India for constitution of an appropriate Bench, to decide which kinds of cases should be entertained under Article 136, and/or for laying down some broad guidelines in this connection.

28. The Constitution Bench may also consider appointing some senior Advocates of this Court as Amicus Curiae to assist in the matter so that it can be settled after considering the views of all the concerned parties.

R.P.

Matter referred to Constitution Bench.