Re-examining the scope of Article 136

Re-examining the scope of Article 136

Bar & Bench

Principal Associate Jasleen K. Oberoi along with Associate Bahaar Dhawan of Amarchand & Mangaldas & Suresh A. Shroff & Co. re-examine the scope of Article 136

The Supreme Court last year in Mathai vs. George (2010) & Anr. had sought for constitution of a Constitution Bench to issue guidelines and decide on the scope and qualifications on entertaining Special Leave Petitions under Article 136 of the Constitution. This reference was  long awaited, and much needed in the present judicial scenario where the apex court of the country is being crushed under an overwhelming backlog of cases majority of them being Special Leave Petitions under Article 136. Consequently, the apex court is increasingly being treated as a court of appeal. Article 136 today has become a hit and trial method for obtaining relief with dissatisfied litigants seeking to challenge each and every order all the way up to the Supreme Court.

Though in catena of earlier judicial pronouncements the Supreme Court has opined time and again that due diligence of the case must be exercised to determine if it is fit for warranting the apex court’s interference. However, in the last decade, the exercise of this power by the Supreme Court has been far from moderate.

This State of affairs stem from the fact that whilst the inherent discretionary power under Article 136 is wide and Article 136 does not expressly define the limitations on the exercise of this power or mention the circumstances under which special leave to appeal can be granted.

The predicament is inherent in the power conferred to the Supreme Court under Article 136, which is of a plenary nature as there are no words in Article 136 itself qualifying this power. In the absence of any conclusive pronouncement (statutory or judicial) on how this discretion is to be exercised, there has been no uniform standard followed by the Supreme Court in admitting Special Leave appeals.

In Mathai (Katju and Lodha, JJ.), the Supreme Court has noted that while seeking a reference of this issue to a Constitution Bench, Article 136 does not expressly define the limitations or fetters on the exercise of the discretionary power conferred on Supreme Court under this Article and the increased indulgence of the judiciary has converted the Supreme Court into an ordinary appellate court even though this power was only envisaged to be a residual in nature. This was never the intention of the Constitution. While discussing the scope of Article 136, the Supreme Court had observed that it has been vested with wide powers 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. This power of the Supreme Court, though discretionary and clearly wide in its ambit, was intended by the framers to be used sparingly in exceptional cases. It held further that “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… After all, the Supreme Court has limited time at its disposal and it cannot be expected to hear every kind of dispute”.

In order to bring about a conclusive regime under Article 136 and attempting to resolve the state of affairs, the Supreme Court in the matter of Mathai also quoted lecture delivered by K.K. Venugopal, wherein he had enlisted a category of cases that may be allowed to be heard in a Special Leave Petition : (i) All matters involving substantial questions of law relating to the interpretation of the Constitution of India ;(ii) All matters of national or public importance;  (iii)Validity of laws, Central and State; iv)After Kesavananda Bharati, [(1973) 4 SCC 217], the judicial review of Constitutional Amendments; (v)To settle differences of opinion of important issues of law between High Courts;(vi) where the Court is satisfied that there has been a grave miscarriage of justice and (vii) where a fundamental right of a person has prima facie been violated (the last two grounds have been added by the bench).

Undoubtedly, the decision on Scope of Article 136, as and when passed will be a much needed respite in view of the mounting arrears, however, how far this decision will ultimately aid in providing a practical solution, would be hard to predict. The present is not the first case where the Supreme Court has attempted to harness the ambit of Article 136. As far back as in 1950, an attempt was made by the Constitutional Bench in Pritam Singh vs. State to define and limit the scope of Article 136. The court  held that “The only uniform standard that can be laid down in the circumstances is that Court should grant special leave to appeal only in those cases where special circumstances are shown to exist…”. Evidently, this Constitution Bench decision has done little or nothing to curb the widespread use of Article 136 as it did not really set out clear and defined limits of Article 136. Therefore, the need of the hour is to formulate a holistic, carefully analyzed and precise set of guidelines indicating the scope of cases in which special leave to appeal, may be entertained.

A well crafted Constitutional Bench decision will not only go a long way in bringing about uniformity in standards of admitting Special Leave Petition and checking litigation which need not be contested all the way to the Supreme Court, but will also relieve the Supreme Court from being further choked with cases that do not merit the Supreme Court’s consideration under Article 136. Needless to say, the judges themselves will have to refrain from being seduced by the quixotic temptation to right every fancied wrong which may parade before them.

Although, the reference is a step in the direction, it remains to be seen if the Constitution Bench, successfully manages the tight rope task of setting guidelines for entertaining Special Leave appeals, which while retaining the plenary nature of the power under Article 136, would encapsulate the intent of the Constitution makers that Article 136 is to come into play only in exceptional cases. The moot point still remains whether another Constitution Bench decision will help in bringing about this balance. But till such time as this decision comes, one can only hope that guidelines as when issued will be exhaustive and not be treated as mere pious wishes as has been the case with the earlier Constitutional Bench decisions on the scope of Article 136.

Jasleen K. Oberoi is a Principal Associate and Bahaar Dhawan is an Associate at Amarchand & Mangaldas. Jasleen specializes in Corporate Litigations, Commercial Arbitrations, Mergers and Acquisitions and General Corporate Advisory Practice

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