By: Abinand Lagisetti and Rishabh Warrier
In Brown v. Allen, Justice Jackson J. of the United States Supreme Court famously stated that the Supreme Court was not final because it was infallible, but instead, that it was infallible only because it was final. Similar views have been echoed by the former Chief Justice of India, Justice Y.K Sabharwal, who thought that the Supreme Court of India is final but not infallible. This very principle of finality is the fundamental characteristic of an Apex court in any jurisdiction. In furtherance of this finality, the nature of the jurisdiction of the Supreme Court of India is largely appellate. The extraordinary appellate jurisdiction under Article 136 bestows wide discretion upon the Supreme Court to grant special leave to an appeal from any judgment, decree, or an order inter alia, passed by any court or tribunal in India.
Through the course of this piece, the authors shall examine the evolution of special leave petitions (“SLPs”) and their detrimental implications; and, most importantly, shall analyse previously proposed reforms, and attempt to put forth an achievable practical solution of their own.
EVOLUTION OF SLPs AND THEIR DETRIMENTAL IMPLICATIONS
Upon the enactment of the SLP provision, the Supreme Court, in Pritam Singh (1950), initially reiterated the Privy Council’s test for admission of SLPs and held that the discretionary power under Article 136 was to be exercised sparingly and in exceptional circumstances alone. However, more recently, the Supreme Court in Mathai (2016) not only refused to lay down any guidelines for the admission of SLPs but also stated that there should be no restrictions imposed on its power under Article 136. While the Supreme Court is indeed the last bastion of justice, such a no-restriction approach contributes to the docket explosion discussed hereinafter.
Ominously, the number of pending cases also drastically increased over the next few decades despite a continuous increase in the number of judges. A study conducted the same year as Mathai evidenced that SLPs amounted to up to 67% of the cases filed before the Supreme Court. More importantly, Hemrajani states that SLPs on average take up almost 63% of the judges’ time. This poses a fundamental problem to the functioning of the Court.
First, the percentage of SLPs that are admitted by the Supreme Court is between 20-25%.These numbers are in stark contrast to jurisdictions such as the United States and Canada, which have an acceptance rate of 2.8% and 9% respectively, in a similar discretionary capacity. Second, the reversal rate of discretionarily admitted cases in the United States and Israel (as another example) stands at 71% and 68% respectively. Yet, in India, it is a meager 59%. In essence, not only do SLPs take up most of the Court’s time, but for a discretionary power requiring a high threshold of admission, they don’t see a high reversal rate either.
Another reason why the SLP problem is ever unchanging is its profitability and its unwavering support from the Bar. Advocates cherish another profitable jurisdiction that acts as a money-making scheme. Moreover, it doesn’t help the case of SLPs that its admissions seem more of a lottery system, with no definite guidelines as to when such a petition would be admissible. Interestingly, M.C. Setalvad famously likened the admission of an SLP to that of gambling.
ANALYSIS OF PREVIOUSLY PROPOSED REFORMS
Over the years, multiple reforms have been proposed by legal practitioners and scholars to tackle the SLP problem. However, most of these reforms largely seek to substitute the special leave powers of the Supreme Court instead of supplementing the same.
The most famous of these reforms is the creation of a National Court of Appeal that would sit independent of the Supreme Court. This proposal was first voiced by Justice Bhagwati in Bihar Legal Support Authority. Subsequently, in 2016, in Vasanthakumar v. Bhatia, a plea for the establishment of a National Court of Appeal was sought before the Supreme Court. It was then referred to a Constitution Bench but has not been heard to date. This proposal has been previously analysed in a two-part post, here.
Ideally, this proposal would create a distinct dispute resolution mechanism for SLPs and relieve the Supreme Court of a significant burden. However, this independent judicial body would conflict with the principle of finality which is the fundamental characteristic of the Supreme Court. The purpose behind Article 136 is to provide the final court of the country with the power to remedy any gross injustice that has occurred in the lower courts. If the National Court of Appeal is vested with these powers, it will strip the Supreme Court of its powers.
Another popular proposal that has been put forth by the 125th Law Commission Report and 259th Law Commission Report, is the restructuring of the Supreme Court of India by establishing 4 regional benches across the country and 1 Constitution Bench in Delhi. The noble idea driving this proposal is to improve access to the Supreme Court from various corners of the country while a singular court in Delhi would inherently be exclusionary. However, as was admitted in the Report itself, such a reform would necessarily require an amendment to Article 130 which provides for Delhi as the seat of the Supreme Court.
Further, setting up regional benches of the Supreme Court is a double-edged sword. While it would undoubtedly make the Court more accessible, it would also make it easier for losing litigants to file inexpensive frivolous SLPs as compared to the relatively expensive process of approaching the Court in Delhi. This proposal would have the backing of the Bar as SLPs have now formed a large part of their practice and are extremely profitable. Hence, though unintended, the creation of regional benches would result in further docket explosion due to frivolous SLPs filed by losing litigants and profit-seeking lawyers.
In contrast to the aforementioned large-scale reforms seeking to substitute the Supreme Court’s power, the authors seek to put forth short-term achievable reforms that could have immediate results. The reform suggested by the authors is the creation of a three-tiered system within the Supreme Court to improve the efficacy and effectiveness of the Court. The three tiers would be the creation of a quasi-judicial body to review appeals as the first tier, puisne judges establishing strict guidelines along with sufficient support from judicial clerks as the second tier, and a constitution bench consisting of the senior-most judges as the final tier.
The first tier would involve a quasi-judicial body consisting of retired High Court and Supreme Court judges who would analyse and review the SLPs before they are taken up by the Supreme Court. While the recommendations of these authorities would not be binding upon the judge, it would serve as the initial threshold to discard entirely frivolous SLPs. Given the prior experience of these retired judges, they would be in the best position to critically evaluate the legitimacy of an SLP, and iron out procedural and technical errors. A similar suggestion was also made by the Supreme Court in Sampath Kumar v. Union of India.
The second tier would constitute the puisne or the junior judges of the Court whose role would be to ensure the regular functioning of the Court. Apart from SLPs, these judges would also act in pursuance of the Court’s ordinary appellate jurisdiction and its original jurisdiction under Articles 32 and 131. Importantly, it is at this tier that the judges require additional support to truly ensure effective justice. In furtherance of this, the authors believe that a robust institutional framework promoting the role of judicial clerks would be extremely helpful. While clerkships in India are not as celebrated as their American counterpart, practicing lawyers and district judges should be encouraged to apply for the position. These clerks would then undertake a second review of the SLPs after considering the recommendations of the quasi-judicial body and brief their respective judge regarding the same.
Additionally, the authors strongly believe that the Supreme Court needs to establish strict guidelines regulating the procedure governing the admission and hearing of SLPs. Some examples of such guidelines could be doing away with mandatory oral hearings for admission of SLPs and imposition of costs for frivolous SLPs dismissed in limine. Another effective measure would be compliance with the self-admittedly high threshold set by the Court for admission of SLPs.
The third and final tier would involve a Constitution Bench involving the 5 to 7 senior-most judges of the Court. The workload of these judges would be determined by the puisne judges in the second tier. All matters involving substantial questions of law or those of national or public importance would be referred to the Constitution Bench by the puisne judges. The significant advantage of a designated Constitution Bench sitting throughout the year is the efficient and effective resolution of questions of national importance. This would be in contrast to the current functioning of the Court wherein high-profile cases such as the constitutional challenges to the Citizenship Amendment Act of 2019 and the abrogation of Article 370 have not yet been heard.
In conclusion, the authors propose this three-tiered mechanism as a practical and achievable reform to the long-standing problem of SLPs before the Supreme Court. Contrary to other reforms proposed, this reform does not require any large-scale constitutional amendments but instead merely involves administrative reforms.
 Abhinav Chandrachud, Supreme Whispers: Conversations with Judges of the Supreme Court of India (Penguin Viking 2018).
 Motilal C. Setalvad, My Life: Law and Other Things (Universal Law Publishing 2012).
(Abinand and Rishabh are law undergraduates at National Academy of Legal Studies and Research, Hyderabad. The author(s) may be contacted via mail at firstname.lastname@example.org and/or email@example.com)
Cite as: Abinand Lagisetti and Rishabh Warrier, ‘The ‘Special’ Problem Plaguing the Supreme Court of India: The Need for Urgent Reforms’ (The RMLNLU Law Review Blog, 15 February 2022) <https://rmlnlulawreview.com/2022/02/15/slp-reform/> date of access