The Supreme Court of India is one of the unique apex courts in the world. It acts as an appellate and constitutional court. The Constitution of India, 1950 mandates the Court to hear appeals from the lower judiciary while also granting the Court with the power to resolve substantive constitutional issues. Due to this wide-ranging jurisdiction, the Supreme Court’s dockets are heavy and the pendency of cases has always remained a constant issue since one can remember. While the US Supreme Court hears less than a hundred cases a year, our Supreme court lends its ear to several tens of thousands.

Some have argued that a significant time of the Court is being spent on dealing with one type of cases: Special Leave Petitions. Article 136 of the Constitution of India, 1950 empowers the Court with discretionary power to allow appeals from any subordinate court or tribunal. The ‘generous policy of admitting special leave petitions’, Tarunabh Khaitan argues, has ‘cannibalized the Court’s role as an effective Constitutional court’. He further notes:
“The impact of the expanding appellate docket of the SC on its constitutional watchdog function has been devastating. Constitutional cases are frequently delayed, decided by benches smaller than constitutionally mandated, and sometimes poorly reasoned and in ignorance of established precedents.”

So, did the framers of the Constitution envisage the Court to assume such extensive appellate jurisdiction under Article 136?

During the Constituent Assembly debates on Draft Article 112 (Article 136, Constitution of India, 1950), some members advocated for a Supreme Court with vast jurisdiction.

Das Bhargava observed the Court’s jurisdiction under this Article to be ‘divine’. And hoped that the Court would employ all means to do justice. Shibban Lal Saxena argued that the Draft Article needed to confer wider powers to the Supreme Court: the Court should not only adjudicate cases based on ‘laws of the land’ but also go beyond ‘those laws’ and apply ‘the principles of jurisprudence and considerations of natural justice’. Bhargava and Saxena’s arguments would make the court’s power under the Draft Article very wide and allow a large number of special leave petitions to be admitted.

While some members viewed the Court’s expansive jurisdiction a necessity to do justice, others believed that the power under the Draft Article was a qualified and limited one.

Naziruddin Ahmad was convinced that the Court would not grant special leave to all matters, but restrict to the ones surrounding ‘substantial question of law’. He added: “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”.

HV Pataskar placed his hopes in the Court’s wisdom:
“The Supreme Court is not likely to grant special leave in any matter whatsoever unless it finds that it involves 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.

But as Khaitan and others have demonstrated, the Court appears to be liberally applying Article 136. It has not defined its power under this Article and takes on excessive cases. As per quantitative studies, 84.6 per cent of newly instituted cases in 2011 were special leave petitions. While this certainly makes the courts dockets heavier and lead to increased pendency, it has a far adverse effect: its ability to attend to constitutionally crucial matters could be compromised. Perhaps it is time for the Court to re-evaluate its special leave granting power?

Click here to subscribe to CADIndia's weekly desk briefs and other updates.