M J Antony: Limits of discretion

There are several reasons attributed to the 12 per cent growth of arrears in the Supreme Court, currently put at 80,000 cases. Shortage of judges, recurring adjournments, long arguments and even longer vacations are well known. What is not so apparent to the public eye is its frequent exercise of the power to grant special leave to appeal against any order of the courts or tribunals below.

This extraordinary power is used in the ordinary course every day. On a typical day, some 400 out of 700 cases coming to the court ssare via the “special leave” route. Article 136 confers discretion to the judges to hear appeals, even if the high courts or other courts have not granted leave to do so to the party which lost the case there. Article 136 bestows on the Supreme Court, “the widest conceivable range of judicial power, making it perhaps among the most powerful courts in the world,” according to one of its own judgments in the PSR Sadhanantham vs Arunachalam (1979) case. This power is “extraordinary in its amplitude; its limit, when it chases injustice, is the sky itself”.

However, in a recent judgment, the Supreme Court questioned the way this discretionary power was being exercised by the judges. A two-judge bench has requested the chief justice to constitute a Constitution bench to set guidelines for granting special leave to appeal (in the Mathai vs George case).

The bench was dealing with the case of a disputed will, in which the genuineness of the testament was subjected to forensic tests. One party was not satisfied with the result and wanted another expert opinion. This demand was rejected by the district court and the Kerala High Court. Then the party approached the Supreme Court with a special leave petition (SLP).

The judges lamented that “nowadays all kinds of SLPs are being filed in this court against every kind of order. For instance, if the trial court allows amendment of an application, the matter is often contested right up to this court. Consequently, the arrears in this court are mounting and this court has been converted practically into an ordinary appellate court. In our opinion, now the time has come when it should be decided by a Constitution bench as to in what kind of cases SLPs should be entertained.”

Though the good intentions of the judges cannot be doubted, the question arises whether discretionary powers can be defined as is done in case of a statute. Such attempts have failed before. For instance, one bench drew up guidelines for awarding capital punishment in the 1980s. The court hastily passed another judgment clarifying that those guidelines were not comprehensive and there were other criteria to be applied. The debate has continued all these years and the matter was referred to a Constitution bench last year. It will take many years (and convicts’ lives) before the issue is settled.

In the present case also, the preliminary framework for guidelines is equally vague and debatable. Some of the guidelines are as nebulous as they can be. By suggesting that only “matters of national or public importance” or “where there has been grave miscarriage of justice” nowhere near a solution. These are exactly the phrases used by clever lawyers to get their SLPs admitted. This is the same tribe that used the fuzzy term, “basic structure of the Constitution” following the Kesavanand Bharati case, for shoving their SLPs on every sundry matters. A former chief justice remarked that he had to hear the basic structure theory in a rent control matter.

If Article 136 is cribbed and confined within strict guidelines, there could be miscarriage of justice. There are several warning signals. The Supreme Court frequently criticises the high courts for not giving any reasons for their judgments. This practice casts a dark shadow on judicial decisions. It is also widely suspected that the quality of judges in the high courts and below has declined over the years. Moreover, the right to life and liberty granted to the citizens under Article 21 is often telescoped into Article 136. Therefore, the court of last resort should not sacrifice justice in its attempt to reduce the pendency of cases. Every hypothetical situation cannot be envisaged while setting guidelines.

The judges especially should not blame the rush of SLPs for not getting enough time to write judgments, as the Mathai judgment proclaims. There are cases that were heard and forgotten more than two summer vacations ago in which judgments have not been delivered.

The ultimate solution is a judicious use of discretion by the judges themselves. In the words of the Supreme Court (Sadhanandam case), “Our constitutional order vests in the summit court a jurisdiction to do justice, at once omnipresent and omnipotent but controlled and guided by that refined yet flexible censor called judicial discretion.”