THE THEN AND THE NOW!

……Article 136 Special leave to appeal by the Supreme Court

It wasn’t like the Indian Parliament thankfully where the ruling and the opposition parties got off their chairs, screamed at each other and made it impossible to continue the proceedings. This took place in a rather peaceful way.

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

Indeed a codified language to understand. But in simple words it means that any case which is pending, under stay order or running in a lower court can be taken to the Supreme Court by applying for a special leave petition. This however cannot be done in cases of Armed forces as they fall under an entirely different category. A simple article yet complicated, just like any other issue in India.

When the makers of the Constitution framed this article wonder how much would they have thought? It was undeniably very thoughtful of them to frame this article but little would they have realised how it grew on the nerves of the Supreme Court now. With the Supreme Court having enough cases to solve already, this article proves to be a burden on it.

Taking the example of the latest case which took place on the 20^th of March, 2010, the Supreme Court finally gave a verdict. Not officially but it did mention about it. A bench consisting of Justices Markandey Katju and R.M. Lodha, pointed out that Article 136 was not meant to be an ordinary forum of appeal at all. They quoted that in the year 2009, 70,000 cases were pending in the Supreme Court of which most were SLP’s which originated from Article 136.

The nature of Article 136 is very similar to Article 226 which is a long article running into four clauses. It talks about the power of High Courts to issue certain writs like habeas corpus, mandamus, prohibition, quo warranto and certiorari. This means that the High courts can take charge of certain writs and give justice on the same.

Both these Articles refer to the same point that cases under certain circumstances can be sent to the Supreme Court because they are either of prime importance, haven’t had fair justice or that they have been moved in to the Supreme Court due to the SLP’s. However, it is time to stop now as the numbers of cases are increasing each day.

Supreme Court is the highest court in India. It demands certain respect and honour. It is the last and final institute where fair justice is provided which is unsatisfactory from all other lower courts. Of course justice is required by everyone but a line of demarcation is now required to prevent the overlapping and pending of cases. Long debates have taken place in the history regarding Article 136 but no amendment what so ever has been made till date.

To prevent the traffic of cases the nature of cases, their appeal, urgency and accuracy should be looked into. The courts should not offer SLP’s blindly as it burdens the highest Court. A more accurate procedure of how the cases should be dealt with should be brought up. Supreme Court must not allow cases which had absolutely no hearing in the lower courts before coming to it, to be fought in the same. It should amend only once, those cases where the High Court has given a revised judgment. All these would save time and hence allow more cases to come under it.

Cases which involve death sentence, life imprisonment, murders or kidnapping should be dealt with more precision. Intruding into Government files or official documents and national security and matters concerning the citizens should also be the priority.

Cases like frauds, theft, felony, jeopardy, defamation and so on should be dealt with on a lighter note, though these cases could have a higher intensity under certain circumstances. Family affairs including divorce, marriages, adoption of the children after divorce, acquiring of land during the split of a family, re-marriage issues etc, should be given lesser importance as in the end it could be solved either by the family or by any lower court.

However, under the category of special cases which should not be taken up by the SLP’s I would like to mention cases dealing with reservations. For a long time now India has been debating about the upliftment of the lower and backward castes or classes. There has been enormous amount of money spent on these people but in vain. There seem to be no signs of improvement as all the money does not reach them. Even if there was any improvement the cultural psychology of the Hindu society (which largely forms a major community of India) does not allow this dream to be shattered. Reservations come in the way of those people who are more efficient but lack opportunity because they are not recruited into the jobs or good openings for the “betterment of a few others!”

Another area where justice can be delayed or be dealt by a lower court is the case(s) concerning communal riots. It is a disagreeable thought that the case should not be taken up the Supreme Court but the fact remains that communal riots have been taking place due to various cultural differences and the diverse mindsets of many different people in one vicinity since times immemorial. Even after several reminders of the death tolls, loss of life and property in these riots, when people cannot stop then there is little that the Supreme Court can do. It is true that ‘justice delayed is justice denied’ but many different communal riots run on the same lines. Hence, passing a judgment on the same lines, heard by a new mouth every time should not be a leisure of the Supreme Court.

All the cases mentioned above fall under one or another article of the Constitution. Being biased against any of these could go against the very rights of the Indian citizens in which case there would be more cases against law itself. Nonetheless, cases must go on and hence a demarcation needs to be prescribed. There can be a particular sequential order explaining which case should be dealt with first to prevent any kind of bias.

There are a vast number of fields where justice can be instantaneous or can be delayed. It is not in my capacity to cover all of them. However, the latest solution of having an Apex Court at the four metropolitans and keeping the present Supreme Court as the Constitutional bench at the country capital taking matters concerning only the amendment of Constitution is an excellent plan. Though cases would pile here as well, it would however, not reduce the quality of justice as the judges appointed would be under the same terms and conditions as that of the present Supreme Court. This plan could help lessen the burden on the Supreme Court and therefore all cases without any bias can be dealt with.

Past was simple, had less cases and hence it was easier to deal with them. With the increase in population, the number of cases increased as well. Hence when a toll was taken upon the Apex Court, it was recently decided that there was an amendment needed. The quality of justice is seeing poor standards in the highest court of law. Senior advocate K.K. Venugopal observed that the Supreme Court is straying away from its original character as a Constitutional Court. Hence, to retain its dignity, amendment to the Article 136 should be made and detailing the category of cases to be accepted under the SLP’s is required.

‘The then’ helped us create laws which were made for a predicted India, which has indeed changed way beyond imagination. And so it has to be amended to make ‘the now’ more habitable by providing proper justice.