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

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
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.

2
According to the State Article 21 is the sole repository of

the rights2.

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.

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.

3
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.

4
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.

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

5
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 31st 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

3
Oldest SLP Civil

S.No.Reg. No.Petitioner NameRespondent Name1.SLP(C) No.4367/1992Shivram Ramayya Yerala & Anr.State of Maharashtra &
Anr.2.SLP(C) No. 5204/1992Pramila Chintamani Mohandas & Ors.State of Maharashtra & Ors.3.SLP(C) No. 5777/1992Vinodray
Harkishandas Sanghavi & OrsState of Maharashtra & Ors.4.SLP(C) No.6191-6192/1992Krishanlal Mohanlal Thakar (Dead) By LRsState of
Maharashtra & Ors.5.SLP(C) No. 7950/1992Dr. Aspi Framroze Golwalla & Ors.State of Maharashtra & Ors.6.SLP(C) No.
8797/1992Dharamdas Hargovinddas & Ors.State of Maharashtra & Ors.7.SLP(C) No. 6744/1993Manju KacholiaState of Maharashtra &
Ors.8.SLP(C) No. 12502/1993Maharaja Mahendra Singh jiMaharaja Arvind Singhyji & Ors.9.SLP(C) No.2303/1995Mr. J.C. Mehta (HUF)
& Ors.State of Maharashtra & Ors.10.SLP(C) No. 13467/1995Rajkumari Narindersain SindhwaniSpecial Land Aqn. Officer & Ors.

4
Oldest SLP (Criminal)

6
to the period 1996 to 2006, 86 Civil Appeals 5 belonging

to the period between 1983 to 1995 and 10 Criminal

Appeals6 belonging to 1991 to 1999 still pending, 10

oldest writ petitions (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

S.No.Reg. No.Petitioner NameRespondent Name1.SLP(C)rl No. 1525/1996UOI & Anr.VJA Flyinn2.SLP(C)rl No. 2718-
2719/1999Saligram Choudhary & Ors.State of Bihar3.SLP(C)rl No.1451/2003Virendra @ LiluState of U.P.3.SLP(C)rl
No.4409/2003Yusufkhan Muradkhan PathanState of Gujarat & Ors.5.SLP(C)rl No.5309/2003Citizens for Justice & Peace & Anr.State of
Gujarat & Ors.6.SLP(C)rl No. 3515-3516/2004Karuna Shankar singh & anr.State of U.P. & Ors.7.SLP(C)rl No. 3865/2004Sat KumarState
of U.P.8.SLP(C)rl No. 4178-4179/2004Mohammad Iqbal Khan Ahmed Khan Bloc`State of Gujarat & Ors.9.Crl. A. No.2222/2005Mahendra
Pratap Singh GillState of Uttaranchal & Ors.10.SLP(C)rl No.1325/2006Central; Bureau pf NarcoticsDhan Singh

Oldest Civil Appeals

S.No.Reg. No.Petitioner NameRespondent Name1.C.A. No. 8607/1983Sri M Temple & Vigneswar Rep by TrusteeVijayammal2.C.A. No.
1523/1990Honnamma Dead Thro Proposed LRs & OrsThe State of Karnataka & Ors.3.C.A. No. 1524/1990Annayappa Dead &
Ors.Kannaiah (D) By Lrs4.C.A. No. 1525/1990Honnama Dead Thro Proposed Lrs & Ors.The State of Karnataka & Ors.5.C.A. No.
37/1992Abhiram SinghC.D. Commachen (D) By Lrs & Ors.6.C.A. No. 5875/1994Krishna Kumar Singh & Anr.State of Bihar & Ors.7.C.A.
No.5876-5890/1994Bimal Kumar Ishwar & Ors.State of Bihar & Ors.8.C.A. No. 8763/1994Arjun Flour MillsState of Orissa & Ors.9.C.A.
No. 8909/1994Sambalpur Merchants Asso.State of Orissa & Ors.10.C.A. No. 3533-3595/1995State of Bihar & Ors.Subhash Chandra & Ors.

6
Oldest Criminal Appeals

S.No.Reg. No.Petitioner NameRespondent Name1.Crl.A. No. 39/1991Raichand Korshi ShahMalshi Meghji Charla & Ors.2.Crl.A. No.
181/1998Vilas V ShanghaiSumermal Mishrimal Bafna & Ors.3.Crl.A. No. 210/1998State of MaharashtraSumermal Mishrimal Bafna &
Ors.4.Crl.A. No. 369/1999Hiten Prasad DalalCBI5.Crl.A. No. 372/1999Mulangi Krishnaswamy Ashok KumarCBI6.Crl.A. No.
405/1999Sudhakar Appu AilCBI7.Crl.A. No.409/1999Abhay Dharamshi NarottamCBI, Bombay8.Crl.A. No. 410/1999Chandrashekhar S
RajeCBI9.Crl.A. No. 411/1999S N RamaswamyCBI, Bombay10.Crl.A. No. 412/1999K.K. KapadiaCBI, Bombay

Oldest Writs Civil

S.No.Reg. No.Petitioner NameRespondent Name1.W.P.(C) No. 7672/1982Hans Raj SharmaState of Jammu & Kashmir & Ors.2.W.P.(C) No.
7673/1982Abdul Karim BandayUOI & Ors.3.W.P.(C) No. 9683-9684/1983Brahmosmj Education SocietyState of WB & Ors.4.W.P.(C) No.
740/1986Central Board of DB Community & Anr.State of Maharashtra & Anr5.W.P.(C) No. 537/1992Commdr. Sureshwar D Sinha &
Ors.UOI & Ors.6.W.P.(C) No. 934/1992Property Owners’ Asso. & Ors.State of Maharashtra & Ors.7.W.P.(C) No. 559/1994R.D.
UpadhyayState of AP & ORS.8.W.P.(C) No. 725/1994In Re News Item Published-9.W.P.(C) No. 26/1995Common Cause A Regd.
SocietyUOI & Ors.10.W.P.(C) No. 202/1995T.N. Godavarman ThirumulpadUOI & Ors.

8
Oldest Writs Criminal

S.No.Reg. No.Petitioner NameRespondent Name1.W.P.(Crl) No.37-52/2002 Fr. Cedric Prakash & Ors.State of Gujarat & Ors.2.W.P.(Crl)
No. 109/2003National Human Rights CommissionState of Gujarat & Ors.3.W.P.(Crl) No. 118/2003 Bilkis Yakub RasoolState of Gujarat &
Ors.4.W.P.(Crl) No. 206-210/2003N Ravi & Ors.Speaker Legislative Assm. Chennai5.W.P.(Crl) No. 216/2003Yusufkhan Muradkhan
PathanState of Gujarat6.W.P.(Crl) No. 284/2003Imran Mohamad Salim DawoodUnion of India & Anr.7.W.P.(Crl) No. 175/2005Suram
ChandUnion of India & Ors8.W.P.(Crl) No. 310/2005Bhim SinghUnion of India & Ors9.W.P.(Crl) No. 319/2005Citizens Forum Against
CorruptionUnion of India & Ors10.W.P.(Crl) No. 118/2006R. Chandrashekar ReddyUnion of India & Anr

7
2002 to 2006. The details of the ten original suits under

Article 131 of the Constitution of India are as follows:

Oldest Original Suits

S.No. Reg. No. Petitioner Name Respondent Name

1 Orignl Suit State of Assam Union of India & Ors.
No.2/1988
2 Orignl Suit State of Assam Union of India & Ors.
No.1/1989
3 Orignl Suit State of Tamil Nadu State of Karnataka &
No.3/2001 Ors.
4 Orignl Suit No. State of Tamil Nadu State of Karnataka &
3/2002 Ors.
5 Orignl Suit No. State of A.P. State of Karnataka &
5/2003 Ors.
6. Orignl Suit No. State of U.P. State of Uttaranchal &
1/2004 Anr
7 Orignl Suit State of Bihar State of Jharkhand &
No.2/2004 Anr
8 Orignl Suit No. State of Bihar State of Jharkhand &
3/2004 Ors
9 Orignl Suit State of Maharashtra Union of India & Anr.
No.4/2004
10 Orignl Suit No. State of Jharkhand & Union of India & Ors.
1/2005 Anr

8
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.

9
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,

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

10
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.

11
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.

12
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 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

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.

13
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.

14
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

15
writs in the nature of Habeas Corpus, Mandamus,

Prohibition, Certiorari, Quo 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

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

16
substantial question of law as to the interpretation of the

Constitution12.

(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 Court13.

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.

(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.

17
(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

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.

18
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”

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:-

19
(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.

20
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

21
 1995 21409 1097
1996 17721 584
1997 18438 590
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

22
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 appeal15 pending in the

15
Civil Appeal No.8607 of 1983

23
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

16
S.L.P.(C) No. 4367 of 1992

24
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

25
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.

32. Somewhere down the line the Supreme Court

relaxed the rigours of scrutiny. Very rarely, nowadays,

17
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] :

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.

26
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.

27
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

28
Constitution, quite a few of the constitutional values

have been forgotten in the various aspects of the working

of the Constitution. 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

29
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.

30
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. The

profundity of Prof. Tribe lies in his observations:

“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 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

31
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:

32
 “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.

33
46. What are the reasons which prompt the Supreme

Court to undertake such indiscriminate scrutiny of the

large number of matters brought before 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

18
Institution Dismissed in limine

34
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.

2011 = 77,090 12,248

2012 = 76,917 12,163

2013 = 76,742 12,872

35
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 significance for the

36
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.

37
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 2nd 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

38
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.

*****

39