M J Antony: Caution in the use of discretion

OUT OF COURT

The Supreme Court wants to stem the flow of indiscriminate appeals.

The Constitution has conferred enormous powers on the Supreme Court. It is often described as the most powerful court in the world. Any citizen can move the court directly, sometimes by merely sending a post card, telegram or now an e-mail. It also hears appeals against decisions of all judicial authorities in the country. The current backlog of cases in the court is often attributed to its extensive jurisdiction.

The main flow of appeals to the Supreme Court is through special leave petitions. The court, in a recent judgement, noted that this route has now been clogged by indiscriminate use and there should be some restraint on the use of special leave petitions. Though the observations came in a matrimonial case (N Suriyakala vs A Mohandoss), it has application in other fields of litigation also.

"Nowadays it has become a practice of filing special leave petitions against all kinds of orders of the high courts or other authorities without realising the scope of Article 136 of the Constitution," said the court. "Hence we feel it incumbent on us to reiterate that Article 136 was never meant to be an ordinary forum of appeal. 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 questions, questions of law of general importance or where grave injustice had been done. If the Supreme Court 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 Court has limited time at its disposal and it cannot be expected to hear every kind of dispute."

According to Article 136, the Supreme Court may, in its discretion, grant special leave to appeal from "any judgement, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the country." The discretion conferred on the Supreme Court thus is very extensive. There have been ample number of judgements on this discretion itself. They have all stressed that the discretion should be used in exceptional cases. The Article does not confer a right of appeal on any party to the case who had fought the case in the subordinate forums. In some cases, the Supreme Court has gone to the extent of stating that it was not bound to set aside a wrong order since the power under the provision is entirely discretionary.

Though the power is vast and not subject to any limitation, the court itself has imposed certain limitation in some of its judgements. In the first case on this provision, Pritam Singh vs The State (1950), the Supreme Court said: "The wide discretionary power with which this court is invested is to be 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."

Recently, in Tirupati Balaji Developers Ltd vs State of Bihar (2004), the Supreme Court again discussed its extraordinary jurisdiction and observed that this discretion was vested in it "with implicit trust and faith." Therefore extraordinary care and caution should be taken in its exercise. In Jamshed Hormusji Wadia vs Board of Trustees, Port of Mumbai (2004), the Supreme Court emphasised that Article 136 should not be understood to have turned the apex court into a tribunal for settling disputes and correcting the errors of other courts.

In Narpat Singh vs Jaipur Development Authority (2002), the Supreme Court explained that "on the one hand it is an exceptional power to be exercised sparingly, with caution and care and to remedy extraordinary situations occasioning gross failure of justice; on the other hand, it is an overriding power conferred whereunder the court may generously step in to impart justice and remedy justice."

The court was acting mainly on these principles. The rulings of the high courts and other forums have frequently been overruled in special leave petitions. Such an exercise has become increasingly necessary because of the falling standards in the courts below.

Ultimately, the Supreme Court has to see that complete justice is done in the cases coming up before it. Therefore, the discretion should be tempered with a practical sense and a touch of generosity.