It is no secret that the Supreme Court currently faces an enormous (and frankly unmanageable) number of Special Leave Petitions (SLPs) under Article 136. This has most recently come to a head following a very emotional speech by the Chief Justice of India who quoted Justice Khehar as saying that every year that a judge spends in service, he/she loses two years of his/her life.

 

It is no secret that the Supreme Court currently faces an enormous (and frankly unmanageable) number of Special Leave Petitions (SLPs) under Article 136. This has most recently come to a head following a very emotional speech by the Chief Justice of India who quoted Justice Khehar as saying that every year that a judge spends in service, he/she loses two years of his/her life.[i] In the speech, the CJI also noted the need for a significant increase in the number of judges in India. Yet there is also an argument to be made that some of the problems faced by the Supreme Court are self-inflicted. SLPs accounted for a staggering 84.6% of the admission docket before the Supreme Court in 2011.[ii]  They have been the vast majority of cases before the Supreme Court for more than twenty years.[iii]

 

The broad reaching powers granted to the Supreme Court under Article136 had sparked a large amount of debate within the Constituent Assembly. It is interesting to note that Article 136 (Article 112 in the draft constitution) was always to be considered a residuary power; an option of last resort when the High Court refused to grant a certificate to appeal under Articles 132-134. A speech by Naziruddin Ahmed is particularly of note:

The question of possible congestion of work in the Supreme Court has included many honourable Members to oppose the provisions of these amendments… The fear of creating a serious congestion in that Court and also the fear that we will have to employ more Judges to deal with those cases is behind this opposition. I submit, however, that this fear is unjustified. So far as the question of law is concerned, it is only a ‘substantial question of law’ which will enable a party successfully to obtain a certificate or special leave.[iv]

 

A definition of a substantial question of law was put forward by H.V. Pataskar as follows:

… 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.[v]

 

Interestingly, the Supreme Court of India itself has echoed this sentiment. In Smt. Baigana v. Deputy Collector of Consolidation, Krishna Iyer J. held that the Supreme Court would only act when there is “manifest injustice or substantial question of public importance”.[vi] However, judging by sheer numbers, the Supreme Court seems to have let this interpretation fall by the wayside. This has had the additional problem of making Articles 132-134 nearly redundant thereby limiting the constitutional power granted to the High Courts to certify that certain cases contain substantial questions of law.

 

The Supreme Court must therefore re-evaluate its strategy for the admission of cases.

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[i] CJI takes a dig at PM Modi: ‘We work during break, not just go to Manali’, The Indian Express,

http://indianexpress.com/article/india/india-news-india/cji-breaks-down-justice-ts-thakur-judges-pm-modi-shift-entire-burden-on-judiciary-shortage/

[ii] Nick Robinson, A Quantitative Analysis Of The Indian Supreme Court’s Workload, p.18 available at http://www.cprindia.org/sites/default/files/articles/SSRN-id2189181.pdf

[iii] Ibid.

[iv] Constituent Assembly Debate dated 14th June 1949

[v] Constituent Assembly Debate dated June 6th 1949

[vi] Smt. Baigana v. Deputy Collector of Consolidation AIR 1978 SC 944, cited with approval in Moumita Poddar v. Indian Oil Corporation (2010) 9 SCC 291. Similar conclusions have been reached in Bengal Chemicals v. Their Workmen AIR 1959 SC 633 and in Narpat Singh v. Jaipur Development Authority (2002) 4 SCC 666.