THE ICFAI UNIVERSITY

ASSIGNMENT ON
“CRITICAL ANALYSIS ON
JUDICIAL POWERS OF
SUPREME COURT”

SUBMITTED BY:- SUBMITTED TO:-

ANUSHKA MISHRA Dr. VAGISH UPADHAYAY
17FLICCDDNO2024 (IUD FACULTY OF LAW)
SECTION-A
BA-LLB(HONS)

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Content:

1. Introduction
2. The Supreme Court Of India
i. Jurisdiction and its Powers
a) Court Of Record
b) Jurisdiction
3. Judicial review
i. Landmark Judgement And Basic Structure Theory
ii. Quasi Judicial Function And Judicial Review
iii. Administrative Action and Judicial Review
iv. Article 13
4. Judicial Activism
5. Relevant Cases and Landmark Judgement
i. Basic structure
6. Conclusion

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INTRODUCTION:

During the British rule the Federal Court of India was the highest court of the country. The
Supreme Court was constituted in 1950 by raising the status of the then Federal Court set up
under the Government of India Act, 1935. Article 124 of the Constitution of India provides the
provision for the judiciary in India. In India, there is an integrated judiciary for the whole
country.The Supreme Court, in India controls the entire judicial system in the country and
occupies a very significant place as the guardian of the Constitution and custodian of the
Fundamental Rights of the citizens As a court of record it sets the ideal for all Courts in India.
The great responsibility of interpreting the Constitution rests on the Supreme Court of India. The
question of law decided by the Supreme Court is binding on all other Courts within the territory
of India.

The Supreme Court of India :

Article 124 of the Constitution provides that there shall be a Supreme Court of India consisting
one Chief Justice and not more than seven other Judges until the Parliament increases the
number of Judges by law. Parliament by a special Act in 1956 increased the number to ten and
by another in 1960 to thirteen. The Act 22 of 1986 increased the number and accordingly now
the Supreme Court consists of the Chief Justice of India and not more than twenty five other
Judges.

According to the Article 127, the Chief Justice of India, with the previous consent of the
President, appoints ad-hoc Judges for such period as may, in his opinion be necessary. Every
Judge of the Supreme Court is appointed by the President of India. The President shall in this
matter, consult other persons besides taking advice of the Council of Ministers.

The Chief Justice of the Supreme Court is appointed by the President in consultation with the
Union Council of Ministers. From the time of the appointment of the second Chief Justice of
India, it has become a convention to appoint the senior-most Judge of the Supreme Court as its
Chief Justice. But that convention was twice violated by the appointment of Justice A N. Ray
and Justice M.H. Beg as the Chief Justice of India superseding their seniors on both occasions.
Another convention is that one of the Judges must belong to the Muslim community. These are
conventions only which have no constitutional basis.

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Jurisdiction and Powers :

Generally, in a federal country the Judicial system is divided into two types - the Federal
Judiciary and the Judiciary of the State But the Constitution of India provides an unified Judicial
system keeping the Supreme Court at its apex.

Therefore, the Supreme Court of India exercises enormous powers and functions which
can be discussed as follows :

1. Courts of Record : The Supreme Court is a court of record and has all the powers of such
a court including the power to punish for contempt of itself. A court of record is a court whose
acts and judicial proceedings are recorded for perpetual memory and which are not to be
challenged or questioned when presented before any court for purpose of evidence. Article
142(2) provides that the Supreme Court shall have “all and every power to make any order for
the purpose of securing the attendance of any person, the discovery of production of any
documents or the investigation or punishment of any contempt of itself.

2. Jurisdiction :

i. Original Jurisdiction : Article 131 provides that the Supreme Court shall, to the
exclusion of any other court, have original jurisdiction in any dispute –

(1) between the Government of India and one or more states, or

(2) between the Government of India and any State or States on the one side and one or more
States on the other

(3) between two or more States. Such disputes cannot be taken to any other Court of Law in
India. The disputes relating to the election of the President and Vice-President are also included
in the original jurisdiction of the Supreme Court.

The Supreme Court is the protector of the Fundamental rights of the citizens. So, the Supreme
Court has the jurisdiction to entertain an application under Article 32 for the issue of a
constitutional writs ,in the form of Habeas Corpus, Mandamus, Prohibition, Quo-warranto and
Certiorari for the enforcement of Fundamental rights. Any disputes regarding these rights comes
within the original jurisdiction of the Supreme Court; in this respect, the State High Courts, too,

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have been given same powers. There are certain limitations to the Supreme Court's original
jurisdiction, The original jurisdiction does not extend to a dispute arising out of any treaty,
agreement, covenant, engagement, sanad or other similar instruments executed before the
commencement of the 97 Constitution of India. Even in respect of the Fundamental Rights, only
the legal aspects are within the Supreme Court's jurisdiction. It has nothing to say about the
administrative or political disputes.

ii. Appellate Jurisdiction : The Supreme Court as the highest court of appeal enjoys three
kinds of appellate powers - Constitutional Appeals, Appeals regarding civil cases,
Appeals regarding criminal cases
(a) Constitutional Appeals : Article 132 provides that an appeal shall lie to the
Supreme Court, from any judgement, decree or final order of a High Court; whether
in a civil, criminal or other proceeding if the High Court certifies that the case
involves a substantial question of law as to the interpretation of the Constitution. The
Supreme Court may grant special leave of appeal even if the High Court refuses to
issue such a certificate. The Supreme Court, however, cannot grant special leave of
appeal against a verdict given by a Martial Court.

(b) Civil Appeals : An appeal shall lie to the Supreme Court if the High Court
certifies (i) that the case involves substantial question of law, (ii) that in the opinion
of the High Court the case needs to be decided by the Supreme Court. Moreover, the
party concerned may appeal on the ground that a substantial question of law has been
wrongly decided. At the beginning, civil cases involving values of not less than Rs.
20,000/- were deemed to be fit to be decided by the Supreme Court on appeal, but
these provision has now been abolished
(c) Criminal Appeals : According to Article 134(1) an appeal shall lie in the
Supreme Court from any judgement, final order or sentence in a criminal proceeding
of a High Court if the latter
(a) has an appeal reversed an order of acquital of an accused person and sentenced
him to death; or
(b) has withdrawn for trial before itself any case from a subordinate court and has in
such trial convicted the accused person and sentenced him to death, or

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 (c) has certified that the case is fit for appeal to the Supreme Court.

The Parliament may also confer by law, on the Supreme Court, power to entertain and hear
appeals on other cases decided by the High Courts. Again under Article 136, the Supreme Court
may grant leave to appeal against any judgement, decree etc. passed by any court or tribunal
other than by courts or tribunals constituted under any law relating to the Armed Forces. No
appeal, however, shall lie to the Supreme Court from the judgement, decree or final order of a
single - Judge bench of a High Court. According to the Constitution (Article 136), the Supreme
Court can enlarge its appellate jurisdiction. The Supreme Court can grant special leave of appeal
from any other court than the tribunals specially set up for the defence army. Again, under
Article 138 Parliament can enlarge the jurisdiction of the Supreme Court m respect of any
subject included in the Union list and in respect of any other subject with the consent of the
states.

iii. Advisory Jurisdiction :

The Supreme Court’s Advisory Jurisdiction has been discussed in Article 143 of the
Constitution. Under this Article the President may approach the Supreme Court for advice on
questions of law or fact of public importance which may have arisen or are likely to arise. The
Supreme Court may, after due enquiry, report to the President its opinion on such mattors Thom
are instances of the Supreme Court having given its advice to the government on many
occasions.

iv. Miscellaneous powers and Functions : There are some other powers and functions of
the Supreme Court which may be mentioned as follows
(1) The Supreme Court is the defender of the Constitution The interpretation of the
Constitution given by the Supreme Court
(2) The Supreme Court is the guardian of the Fundamental Rights of the citizens. Any citizen
can approach it in case of infringement of any of his Fundamental Rights by the
government.
(3) The Supreme Court is a court of record as mentioned earlier It means that the decision of
the Supreme Court must be accepted by all other courts in India. The ruling of the
Supreme Court will be upheld and accepted by all High Courts and Lower Courts as
precedents. The decision of the Supreme Court is regarded as law

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 (4) The Supreme Court enjoys partial power of judicial review. It can declare void a law
passed by Parliament or a state legislature if it contravenes any provision of the
Constitution or if the law is passed in exercise of jurisdiction which Parliament or the
state legislature does not, in fact, possess.
(5) Article 137 has empowered the Supreme Court to review its own orders or judgements
given earlier. It can review its decisions if
(i) some new facts or evidences come to light,
(ii) a fact is found according to its records’
(iii) there are sufficient reasons for review The Supreme Court itself observes, “There is
nothing in the Indian Constitution which prevents the Supreme Court departing from its
previous decisions if it is convinced of its error or its baneful effects on the general
interest of the public”.

(6) The Supreme Court has also the power to make rules for regulating its practice and
procedure.

(7) Article 146 authorises the Supreme Court to appoint its officers and servants. Accordingly,
the Chief Justice of India or such other Judges or officers of the court appointed by him, can
appoint the officials and the servants of the Supreme Court.

(8) Article 129 deals with contempt of court. The act of criticising the Judge and the court or any
judgement of the court, passing derogatory remarks against the court and refusing to abide by the
decisions of the court constitute contempt of court.

(9) The Supreme Court enjoys the power to withdraw cases pending before a High Court, or
more than one High Court, for disposal by itself. This can be done if (a) cases involving the same
or substantially the some question of law are pending before the Supreme Court and one or more
than one High Court, and (b) The Supreme Court is satisfied on its own opinion or on the
application made by the Attorney-General of India or by one of the parties that the case involves
substantial question of general importance (10) Appeals also lie to the Supreme Court under the
Peoples Representation Act. Thus the Supreme Court of India controls the entire judicial system
in the country and occupies a very significant place as it stands at the apex of the integrated
judicial system of India.

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In India, some measures have been taken to ensure the independence of the Judges of the
Supreme Court. These can be mentioned as follows.

1. Though the appointing authority is the President which in practice means the Council of
Ministers, the appointment of Judges of the Supreme Court is not purely political. The
Constitution requires that in the appointment of a Judge the Chief Justice shall always be
consulted (Articles 124 and 217).

2. Secondly, a Judge of the Supreme Court cannot be removed from his office except on a joint
address by both Houses of Parliament on 107 ground of proved misbehaviour or incapacity, A
Judge of the Supreme Court can be removed by the President upon a resolution to that effect
passed by majority of the total membership and a majority of not less than two-thirds of the
members present and voting in each House.

3. Article 121 of the Constitution lays down that no discussion shall take place in Parliament
with respect to the conduct of any Judge of the Supreme Court or of a High Court in the
discharge of his duties except upon a motion for presenting an address to the President praying
for the removal of the Judge.

4. Article 146(3) of the Constitution of India provides that the administrative expenses of the
Supreme Court, the salaries and allowances etc. of the Judges as well as of the staff of the
Supreme Court shall be charged upon the Consolidated Fund of India and are not to be submitted
to the vote of Parliament.

5. Article 125(2) provides that the salary, allowances, leave and pension of the Judges may be
determined by law made by Parliament these shall not be varied to the disadvantage of a Judge
during his term of office. In other words, he will not be affected adversely by any changes made
by law since his appointment. But only in time of financial emergencies the President can cut
down the salary of the Judges [Article 360(4)(b)]. 108

6. Article 124(7) of the Constitution ensures the independence of the Judges by laying down that
after retirement a Judge of the Supreme Court shall not plead or act in any Court or before any
authority within the Indian territory.

7. Lastly, the Judge must be free from all criticism in the Press and the Parliament (Article 129).

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Judicial Review :

Landmark Judgements - Basic Structure Theory :

The doctrine of Judicial Review takes its origin fromthe theory of separation of powers. The
power of judicial review is implicit in 110 the judiciary. This was developed in America by
Chief Justice Marshall and thereafter by other Judges of the U.S. Supreme Court. The principle
of judicial review is followed in Canada, Australia, India and other countries having written
Constitutions. Judicial review is regarded as the defensive armour to protect the rights and
liberties of the people against the legislative and executive aberrations. In India, the power of
judicial review has been conferred on the High Courts and the Supreme Court under Articles 226
and 32 respectively.

India: Though nowhere in the Constitution of India is mentioned the phrase 'Judicial Review',
yet the Supreme Court of India has the power of judicial review. The Supreme Court under
Article 32 and the High Courts under Article 226 are conferred with the power of judicial review
of

(1) Legislation

(2) Quasi-judicial Proceeding and

(3) Administrative Action Separation of powers has not been recognised under the Constitution
of India in its absolute rigidity. But in India, legislative, executive and judiciary have to function
within their own spheres demarcated under the Constitution. The functioning of democracy
depends upon the strength and independence of each of its organs. The court is the interpreter of
limit of authority of different organs of the state The interpretation of the Constitution as a legal
instrument and its obligation is the function of the courts.

Judicial review is a powerful weapon to restrain the unconstitutional exercise of power by the
legislature and the executive The expanding horizon of judicial review has taken in its fold the
concept of social and economic justice. While exercising the power of judicial review, the only
check of the judiciary is the self-imposed discipline of judicial restraint. The right given to the
citizen to move.the Supreme Court by a petition under Article 32 of the Constitution and claim
an appropriate writ against the unconstitutional infringement of his Fundamental Rights itself is a

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Fundamental Right14. The judicial review of the Supreme Court envisages the judicial review of
the act of Parliament of State legislatures in passing the legislation.

Moreover, it encircles the review of act of the Aseef Hameed Vs. State of J. 1&. Daryao Vs.
State of U.P.2 governmental authorities performing both quasi-judicial and administrative
powers. Article 13 provides for the judicial review of all legislations in India. The most
significant achievement in post-Constitution India is the exercise of the power of judicial review
by the superior courts The judicial review of the Supreme Court is a basic structure of the
Constitution. Therefore, even though Constitution can be amended by the amending power under
Article 368 of the Constitution, this power of judicial review being part of basic structure of the
Constitution cannot be curtailed by amendment. The Constitution of India contains express
provision for judicial review of the legislation so as to conform it with the Constitution unlike in
U.S.A. where the Supreme Court has assumed extensive powers of reviewing legislative acts
under cover of widely interpreted due process" clause in Fifth and Fourteenth Amendment to the
American Constitution. The Supreme Court (through Patanjali Sastri) agrees that "The
Constitution of India contains express provision of judicial review' and that specially with
reference to Fundamental Rights “the Supreme Court has been assigned the role of a sentinel on
the quivive" (vide The State of Madras Vs. V. Row).3

The powers of judicial review provided in the Constitution of India is limited in nature. Judiciary
in India is not as powerful as it is in the U.S. for the reason that the scope of judicial review in
India is confined to the examination of the Constitutional validity of an impungned law or
executive action on two Courts whether it falls within the competence of the authority that has
framed it (2) whether it is considered with Part III of the Constitution of India dealing with
Fundamental Rights. 15. Keshavananda Bharati Vs. State of Kerela 4, Indira Nehru Gandhi Vs
Ra| Narain5

Quasi-Judicial Function and Judicial Review :

1
AIR 1989, SC 1899 14
2
AIR 1961 SC 1457 (1962)1 SCR 574 113
3
AIR 1952 S.C. 196
4
AIR 1973 SC 1461
5
AIR 1975 SC 2299

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A quasi-judicial function stands between a judicial and an administrative function. A purely
administrative act does not decide rights of private parties, but a quasi-judicial act determines the
private rights with a binding force. An administrative act may be either statutory or nonstatutory.
But a quasi-judicial act must have statutory authority to discharge the function in question. In a
quasi-judicial proceeding a right to reasons is an indispensable part of the system of judicial
review. A statutory tribunal or authority created by the statute with power to decide a matter or to
make an enquiry is subject to judicial review.

Administrative Action and Judicial Review :

In State of AP Vs. Me Dowell & Co6. the Supreme Court has observed - even in the case of
administrative action, the scope of judicial review is limited to three ground, namely –

(1) unreasonableness, which can more appropriately be called irrationality;

(2) illegality and

3) procedural impropriety"

Judicial review is directed not against the decision but is confined to examination of decision
making process. When the issues raised in the judicial review is whether a decision is vitiated by
taking into account irrelevant or neglecting to take into account of relevant factors or is so
manifestly unreasonable that no reasonable authority, entrusted with State of A.P. Vs. Me
Dowell 8 Co.7,he power in question could reasonably have made the decision, the judicial review
of the decision making process includes examination, as a matter of law, of the relevance of the
factors.

Judicial Review and the Pre-Constitutional Law and the PostConstitutional

law :

Under the provision of judicial review the Supreme Court can test all pre-constitutional and post
constitutional or future laws and declare them unconstitutional in case they contravene any of the
provisions of part III of the Constitution. According to Article 13(1) all pre-constitutional laws
which were in force immediately before the commencement of the Constitution shall be void to

6
AIR 1996 SC 1627
7
AIR 1996, SC 1627, (1996)3 SCC 709

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the extent to which they are inconsistent with Fundamental Rights from the date of the
commencement of the Constitution. Article 13(1) is perspective in nature.

All pre-constitutional laws inconsistent with Fundamental Rights will become void only after the
commencement of the Constitution. Such inconsistent law is not wiped out so far as the past acts
are concerned. A declaration of invalidity by the court is necessary to make a law void. If only a
part of a statue is unconstitutional, then whole of the statute is not declared unconstitutional. This
is clear from the Supreme Court's doctrine of severability or separability. This doctrine states that
if an offending provision can be separated from that which is constitutional then only that part
which is offending is to be declared as void and not the entire statute. Article 13 of the
Constitution uses the words "to the extent of such inconsistency be void" which means that when
some provisions of the law is held to be unconstitutional then only the repugnant provisions of 1
State of UP. Vs. Maharaja Dharmendra Prasad Singh 8, the law in question shall be treated by
courts as void and not the whole statute^. Clause (2) of Article 13 prohibits the state to make any
law which takes away or abridges rights conferred by part III of the Constitution. Post-
constitutional laws inconsistent with Fundamental Rights are void from their very inception.

Thus the voidness of the preconstitutional law is not from its inception but from the date of the
commencement of the Constitution. But, the voidness of a postconstitutional law is from its very
inception and such a law can not exist from any purpose in relation to the citizens of India.

Judicial Activism:

In India, the judiciary has been given the power to protect the Constitution and to preserve the
Fundamental Rights of the people. It has been empowered by the authority of judicial review and
in that capacity it has been exercising its power in recent years which is dubbed as judicial
activism. Under judicial activism, the court has begun to intervene in and question the activities
of the executive and the legislature, reminding them, from time to time, of their duties and
responsibilitiestothesociety. 

The beginning of judicial activism in India could be traced back to 1985 when the then Chief
Justice of India, Justice P.N. Bhagavati converted a letter written to him on a aost card by an
aggrieved person into a Public Interest Litigation. By the middle of the 1990s, judicial activism
8
AIR 1989, SC 997

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became more and more pronounced. The activism of the Supreme Court became visible in terms
of sensitizing the Central Intelligence Agency to discharge their constitutional obligations in the
hawala cases in which top level political personalities were involved. It has passed landmark
judgements over environmental degradation, pollution control, preservation of historical
monuments, eviction of unauthorized occupation of government buildings, etc. In this way, the
judiciary has become overwhelmingly busy with cases brought before it from various quarters of
the society and the activism of the Indian Judiciary has benefitted the common people in terms of
addressing their grievances to a large extent.

Relevant cases and Landmark Judgements :

If the state makes law which takes away or abridges rights conferred by part III of the
Constitution that law will become ultra vires and void to the extent of contravention. This law
cannot be revived by removal of the constitutional prohibition by subsequent amendment of the
Constitution

"According to our Constitution Parliament is supreme in enacting laws and amending the
Constitution, but the Supreme Court is supreme in deciding whether the laws enacted and the
amendments made by Parliament are within the ambit of the Constitution".Thus the Moto
General Traders Vs. A.P..9

Basu - Introduction to the Constitution of India, p. 406 20. S.L. Sikrl - Indian government and
Politics, p. 206 Constitution distinctly shows the limitations of the Parliament Judiciary. Yet, the
conflict between the Supreme Court and the began soon after the commencement of the
Constitution in 1950.

T h e reason behind this conflict is the claim to supremacy of judicial reviews Parliamentary
sovereignty in interpreting and defining the Constitution Before 1967, the Supreme Court was
holding that no Constitution was unamendable under Article 368 and Fundamental Rights are
also amendable. But in 1967, the Supreme Court gave its judgement in the Goloknath case that,
Fundamental Rights cannot be amended by Parliament following the method prescribed under
Article 368.

9
(1984)1 SCC 222 19. D.D

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The Government responded through the 24,h Amendment in 1 9 7 1 to the Constitution by
adding clause 4 to Article 13 and providedthat Fundamental Rights could be amended by the
procedure laid d o w n i n Article 368. So, the Parliament got the power to amend any part of the
Constitution. The 24th Constitution Amendment Act was passed to null if the decision of the
Supreme Court in the Goloknath case which declared the Fundamental Rights unamendable.

The 24th and 25th Amendment were challenged in the Keshvananda Bharati's case. In this case,
which is also called "Fundamental Rights' case", the Supreme Court held that (1) Fundamental
Rights can be amended. (2) A part of the 25th Amendment Act was struck down. It means t h a t
constitutional amendments were subject to judicial review. (3) The Constitution has certain basic
features which cannot be amended The Parliament was not satisfied with the judgement in
Keshvananda Bharati's case. So, when the 42nd Amendment act was passed in 1976, unlimited
power was given to the Parliament to amend t h e Constitution. The Supreme Court was denied
the power to d e c l a r e Constitutional Amendment Act null and void. But, the 42nd
Amendment Act was challenged in the Supreme Court in Minerva Mills case in 1980. Through
this Act the Supreme Court has got the power of judicial review over Amendment Acts also.

Relevant cases and Landmark Judgements of the Amendments and the Basic
Structure Theory :

The question of basic structure of the Constitution has not been raised suddenly. It is the result
of a gradual process of adjudication and interpretation of the Constitution and the laws over the
decades The more important relevant cases of the amendment of the Constitution are as follows.

(1) Shankari Prasad Vs. Union of India 10 While the Patna High Court in Kameswar Singh
Vs State of Bihar2i declared the Zamindari Abolition Act invalid, some other High
Courts delivered judgements which were quite the opposite. Pandit Nehru was shocked to
find that not a few of them had struck down land reform laws because they did not
provide for adequate compensation The Supreme Court held the view that it was
unconstitutional to differentiate between the rich and the poor in determining the
compensation for property acquired by the state. This led to the First Amendment Act

10
(AIR, 1951 SC 458)

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 1951 The First "Amendment Act 1951 came to be challenged in Shankari Prasad's case. It
was in this case that the first attack on Parliament’s power to amend the Constitution was
made. The S P Singhdeo Vs. Union of lndia22, the Supreme Court unanimously held that
an amendment of the Constitution was not 'law' within Article 13 of the ConstitutionThe
First Amendment Act inserted Articles 31A and 31 B in the Constitution. Article 31A
provided that no law, affecting the rights of any proprietor or intermediate holder in any
‘estate’ shall be deemed to be void on the ground that it is inconsistent with or takes away
or abridges the rights enshrined in Article 14, 19 and 31. The object of this Article was to
facilitate agrarian reforms. Article 31B stated that any enactment, which is placed in the
Ninth Schedule, will not be liable to be challenged on the ground that it abridges or takes
away any of the Fundamental Rights.

Keshvananda Bharati's case (1973) : This is known as the "Fundamental Rights" case. The
case was heard by 13 Judges

The judgement of the Supreme Court in this leading case laid down the important points which
the apex Court held by majority of 7 to 6 i) Parliaments' amending power is limited while
Parliament is entitled to abridge any Fundamental Rights or amend any. provisions of the
Constitution, the amending power does not extend to damaging or destroying any of the essential
features of the Constitution Fundamental Rights are among the essential features of the
Constitution. Therefore, while they may be abridged, the abridgement cannot extend to the point
of damage or destruction of their core. (ii) Article 31C is void since it takes away invaluable
Fundamental Rights, even in those unconnected with property.

The 42nd Constitution Amendment Act was challenged in the Supreme Court in Minerva Mill's
case. In 1980, the Supreme Court struck down amended Article 31(C) and the newly inserted
clauses 3,4 and 5 in Article 368 of the Constitution by the 42nd Amendment. So, the Supreme
Court now has the power of judicial review over amendment acts also The 1 3 1 apex court
maintained its basic structure theory in more emphatic terms as follows ; A) Article 368 confers
a limited power on the Parliament. B) The limited amending power itself is a basic feature of the
Constitution. C) Ouster of the court's jurisdiction to pronounce on the constitutionality of
amendments destroys the basic structure of the Constitution It disturbs the delicate balancing of

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powers between the legislature, executive, and the judiciary built into the Constitution. The basic
structure theory is thus reaffirmed.

Conclusion:

A critical evaluation of the case law directly from orders of tribunals under special leave
jurisdiction testifies that the policies and guidelines laid down by the Court are often not
followed. Exercise of wide discretionary power varies from one judge to another or from one
case to another without any uniform pattern. A strict observance could only save the Court from
alarming backlog of cases and serve the purpose for which the tribunals are constituted. The
justifications for the constitution of administrative tribunals like in expertise, delay, cumbersome
and costly procedure of ordinary courts are broken down by permitting to entertain special leave
appeals in exercise of wide discretionary powers. Articles 323A and 323B empower the
Parliament to constitute tribunals for speedy and expert disposal of disputes relating to matters
of public importance, such as public service, taxation, foreign exchange and customs, labour,
land reforms, urban land ceiling, election and supply of essential commodities.

Appeals from tribunals should lie to appellate tribunals and from there to a national tribunal
constituted with experts. Apex Court should not entertain appeals on the notion that its wisdom
cannot be wrong. The apex court also commits error, but since there is no further appeal, what
the apex court says is final. Thus finality of a decision is not a attribute of wisdom or correctness.
Hence it is better to constitute a national tribunal for appeals which would be in a position to
entertain appeals from of various appellate tribunals in the country, and the apex court should
concern itself with cases involving manifest injustice only. When the law regarding a matter is
laid down by the apex court, any further interference in the matter is not warranted. The Supreme
Court was not meant for correcting injustice in individual cases. Experience shows that any self-
imposed restrictions placed as fetters on discretionary power have not hindered the Court from
leaping into resolution of individual controversies. The conscience of the Court may prick it or
its heart bleed for imparting justice or undoing injustice. But such ventures will only result in
docket explosion, and the delay causing problems of denial of justice.

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