Lure of last chance adds to Supreme Court backlog

Gradually but surely, an attempt is being made by some judges of the Supreme Court (SC) to keep its dockets clear of unwanted litigation.

Articles 32 and 136 of the constitution entitle aggrieved litigants to approach SC, but it has been felt that the provisions have become a burden on the court and heartbroken litigants, who can’t resist the temptation of taking a last chance.

The temptation is due to the 50-50 possibility of getting relief from the high constitutional court.

An eminent lawyer, who advised his counsel not to move SC in a “hopeless case”, faced sarcasm when the litigant got relief. This experience could be interpreted as inconsistency in judicial perceptions.

After all, judges aren’t computers. They are fallible like any other manual institution. But judicial inconsistency surely adds to the flow of cases and the dreadful backlog.

Amidst talk of dividing SC into regional benches to make dispensation by the constitutional court available at your doorstep, a bench of justices Markandey Katju and RM Lodha recently expressed the apprehension that if all and sundry cases continued to flood the top court, it could collapse.

This begs the question — what matters should the court decide and what it shouldn’t. It must be given finality by a larger bench and its decision must be binding, resulting in major changes in the rules.

It is, therefore, strongly felt that a more-or-less uniform standard should be adopted in accepting appeals at the first motion. Unfortunately, no such standard exists, making grant of special leave a “gamble”, as noted constitutional authority and jurist Motilal Setalvad pointed out in his book My Life - Law & Other Things in India.

Judicial discretion “means sound discretion guided by law. It must be governed by rule, not humour: It must not be arbitrary, vague and fanciful,” Lord Mansfield said in the John Wilkes case of 1770.

What was said then is good even today in the Indian context where a successful litigant is the one who gets stay or bail at the first go.