APPELLATE JURISDICTION OF SUPREME COURT: A CRITICAL

ANALYSIS

5.1 – CONSTITUTIONAL LAW- II

SUBMITTED BY:-
Anika Sharma
UID – UG-19-16
Academic Year 2021-22
B.A.LLB (Hons)- III Year
Semester V (July- December)

SUBMITTED TO:-
Dr. V.P. TIWARI
(ASSOCIATE PROFESSOR OF LAW )

OCTOBER, 2021

MAHARASHTRA NATIONAL LAW UNIVERSITY , NAGPUR

 TABLE OF CONTENTS

Introduction................................................................................................................................2

Research Question......................................................................................................................3

Research Objectives...................................................................................................................3

Research Methodology...............................................................................................................3

Doctrine of Merger and SLP......................................................................................................4

Doctrine of Merger.................................................................................................................4

Filing of Review Petition After Dismissal of SLP.................................................................5

Dismissal of SLP and Associated Question of Law...................................................................6

Scope and Limitations of Article 136...................................................................................6

“Question of Law” Under SLP..............................................................................................7

Pattern of Appellate Functioning.............................................................................................10

Case-by-Case Rescue...........................................................................................................10

Case-by-Case Rescue For the Common Person...................................................................12

Better Access to Individuals and Criminal Defendants Over the Government...............13

Prioritizing Access for Constitutional Cases....................................................................14

Conclusion................................................................................................................................14

Bibliography.............................................................................................................................15

1
Introduction
Indian Judiciary is a hierarchal System, where Supreme Court is the highest Court in the
system. This does not mean that the Supreme Court has limitless powers, it also has its scope
of power to decide and hear cases, which is called the Jurisdiction of the Supreme Court.
Supreme Court has three types of jurisdiction: Original, Appellate, and Advisory. Original
jurisdiction involve disputes which can be directly be taken to the Supreme Court, such as
disputes between Government of India and one or more states, disputes between Government
of India and one or more states on one side and one or more states on the other side, and
between two or more states. Advisory jurisdiction involves that the President may seek
opinion of Supreme Court on any question of law or fact of public importance.

In this paper, the focus will be mainly on Appellate jurisdiction of the Supreme Court,
conferred by Article 132,133 and 134 of the Constitution. Article 133 specifics that appeal
shall lie against the judgement or order in a civil matter of the High Court to the Supreme
Court, only when it involves a substantial question of general importance. Article 134
specifies about appeal in criminal matters to the Supreme Court from High Court. However,
in criminal matter, appeal lies when an order of acquittal is reversed and accused sentenced to
death or any case withdrawn for trial before the High Court and accused is convicted.
Further, in order to make an appeal to the Supreme Court, as per Article 134A, High Court
should issue a Certificate for appeal, if it deems fit. But, this does not imply that without a
certificate from the High Court, appeal cannot be made.

The Supreme Court, itself also has the power to grant special leave to appeal any judgement,
decree or order from the High Court (Article 136) and this is the Extraordinary Jurisdiction of
the Supreme Court. This Extraordinary Jurisdiction raises certain question of law such as
merger of High Court Judgement or question of law being kept open, if SLP is dismissed and
others. The few of them will be discussed below along with the pattern of appellate
functioning of the Supreme Court.

2
Research Question:

 Whether the review petition can be filed before the High Court after the dismissal of
Special Leave Petition (SLP) by the Supreme Court ?
 Whether the question of law should be kept open after the Supreme Court dismisses the
Special Leave Petition ?
 Whether the Supreme Court in its appellate jurisdiction should prioritize taking up norm-
evaluation cases or perceive case-by-case rescue ?

Research Objectives:

 To evaluate the consequential issues that may follow after the dismissal of Special Leave
Petition by the Supreme Court.
 To examine the pattern of how the Supreme Court admit the appeals filed before it and
ascertain the type of cases that it prioritizes.

Research Methodology:

The research has been undertaken by doctrinal method. The data is collected through the
original case and other sources. In order to analyze the case, data is collected from various
books, articles and journals. Further, opinions and interpretation of renowned authors was
used to interpret the provisions and the review the literature. The data was organized in order,
which also essential, which is also essential for the proper understanding of the content. Then
the sources that were referred listed below that followed bibliography.

Doctrine of Merger and SLP

In this section, we will determine whether the admission or dismissal of Special Leave
Petition results in a merger of High Court’s Order into that of Supreme Court’s Order. Here

3
we will explain doctrine of merger and try to determine the above question through
precedents.

Doctrine of Merger:

Article 141 of the Constitution states that “ the law declared by the Supreme Court shall be
binding on all courts within the territory of India”. The Supreme Court’s decision on any
issue will be binding on all Indian courts. When an appeal is resolved by the Hon’ble Apex
Court, the decision against which the appeal was filed is combined with the ruling of the
Hon’ble Supreme Court.

The juridical clarification of the ‘doctrine of merger’ can be found in the principle that it is
not possible to have more than one operative regulating the same matter, at one and the same
time. When an inferior court’s judgement is exposed to a superior court’s examination, it
loses its legal standing and is considered substituted by the higher court’s decision.1

This doctrine not a doctrine of strict and universal application. The doctrine of merger is
applied differently in each case, depending on the nature of the appellate or revisional order
and the extent of the statutory provisions giving appellate or revisional authority. In the case
of State of Madras vs. Madurai Mills Co. Ltd.,2 the Supreme Court held that:

“the doctrine of merger was not a doctrine of rigid and universal application. The
application of the doctrine depends on the nature of the appellate or revisional order in each
case and the scope of the statutory provisions conferring the appellate or the revisional
jurisdiction. Basically, therefore, unless the appellate authority has applied its mind to the
original order or any issue arising in appeal while passing the appellate order, one should
be careful in applying the doctrine of merger to the appellate order.”

In the case of Kunhayammed vs. State of Kerala,3 it was held that ‘Doctrine of Merger’ is
neither a constitutional law doctrine nor statutorily recognized doctrine. It is a common law
doctrine founded on principles of propriety in the hierarchy of justice delivery system. This
Court has dealt with his doctrine on various occasions.

1
Parveen Kumar Bansal and Gaurav Bansal, An Analysis of Appeal and SLP Before the Supreme Court and
Doctrine of Merger, itatonline ( Oct. 9, 2021) https://itatonline.org/articles_new/an-analysis-of-appeal-and-
special-leave-petition-slp-before-the-supreme-court-and-the-doctrine-of-merger/#link.
2
State of Madras vs. Madurai Mills Co. Ltd., AIR (1967) SC 681.
3
Kunhayammed vs. State of Kerala, (2000) 245 ITR 360 (SC).

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Filing of Review Petition After Dismissal of SLP
These are the decisions of the Hon’ble Supreme Court in which it was decided that whether
the review petition can be filed in the High Court, after the refusal of SLP by the Supreme
Court.

In the case of Abbai Maligai Partnership Firm vs. K. Santhakumaran,4 it was held by the
three-judge bench that the High Court has known that this court had earlier rejected SLPs
challenging the orders. As a result, this High Court lacked the authority and jurisdiction to
reconsider the self-made order that had been challenged in the SLPs before this court, after
the challenge had failed. The judicial propriety has been lost by passing the impugned order.
On dispute, the High Court could not accept review petitions against the same decision after
this court dismissed the special leave applications.

In the case of Kunyammed vs. State of Kerala,5 it was laid down that a nonspeaking order or a
speaking order can be used to dismiss a petition for permission to appeal to this Court.
Whatever the phraseology used in the order of dismissal, if it is a nonspeaking order, that is,
if it does not provide reasons for refusing the special leave petition, it would not attract the
doctrine of merger and would not be a declaration of law by the Supreme Court under Article
141 of the Constitution because no law has been declared. However, if the dismissal order is
backed by causes, then also the doctrine of merger would not apply because it has exercised
discretionary jurisdiction to grant leave and not appellate jurisdiction.

Further, in the case of V. Senthur and another vs. M. Vijayakumar IAS and others,6 the Court
reiterated that if the order of dismissal of SLPs is backed up by grounds, the doctrine of
merger is likewise ruled out. Even yet, if this Court declares a law that is obligatory on all
courts and tribunals in India, as well as the parties thereto, the grounds given by the court
would attract the application of Article 141 of the Indian Constitution.

More recently, in 2019, in the case of Khoday Distilleries Ltd. vs. Mahadeshwara Sahakara
Sakkare Karkhane Ltd.,7 the Supreme Court again evaluated the doctrine of merger in a
detailed manner where an SLP is refused or admitted and held that different factors apply
when a special leave petition under Article 136 of the Constitution is merely dismissed with

4
Abbai Maligai Partnership Firm vs. K. Santhakumaran, (1998) 7 SCC 386.
5
Supra Note No. 3.
6
V. Senthur and another vs. M. Vijayakumar IAS and others, (2021) SCC OnLine SC 846.
7
Khoday Distilleries Ltd. vs. Mahadeshwara Sahakara Sakkare Karkhane Ltd., (2019) 4 SCC 376.

5
the words ‘dismissed’ and when an appeal under Article 133 is dismissed with the words ‘the
appeal is dismissed’. In the first instance, the Supreme Court held that when a special leave
petition is denied, the court makes no judgement on the validity or otherwise of the order
from which permission to appeal is sought, thus, merger does not apply. That could not be the
case if the appeal is dismissed due to a non-speaking order under Article 133. The merger
doctrine applies in this case.

On the basis of above findings, the Supreme Court in the Khoday Case held that an SLP
dismissed without any speaking order, then the High Court empowered to entertain review
petition against the such order, but only on merits, for instance, if material facts are
suppressed or fraud is committed on the Court.

Dismissal of SLP and Associated Question of Law

In this section, it is elaborated that how the power of Supreme Court under Article 136 is
limited and whether it is fair for the Court to leave the question of law open, if the SLP is
dismissed.

Scope and Limitations of Article 136

Article 136 provides discretion to the Supreme Court to give “special leave to appeal” from
any decision or order made by any tribunal or Court within the territory of India. The
limitations on the Court’s power to hear appeals is override by the power emphasized through
the non-obstante clause.8 This article covers both final and interlocutory orders, as well as
Tribunals having a portion of the judicial authority of the State i.e. quasi-judicial bodies.
Article 136, on the other hand, does not give a “right to appeal”, but rather a “right to apply”
for special permission, which, if granted, grants a right to appeal if the leave is not
withdrawn.9 Similar to the Privy Council, Supreme Court has certain self-imposed restrictions
for criminal appeals and will not admit SLPs relating to criminal cases, especially, when there
is concurrent finding of facts such as mistake of law or mistake of record or misinterpretation
of evidence. The Supreme Court jurisdiction of Article 136 is cited in extraordinary
circumstances if and when a matter of law of wide public interest arises.10

8
3 SEERVAI H.M., CONSTITUTIONAL LAW OF INDIA 2647 ( Universal Law Publishing Co., 2015).
9
Bharat Bank Ltd. vs. Employees of Bharat Bank Ltd., Delhi, (1950) AIR 188.
10
Ganga Kumar Srivastava vs. State of Bihar, (2005) 6 SCC 211.

6
The Supreme Court has correctly refused to restraint its discretionary power by formulating
laws and principles. The Constitutional Bench in the case of Dhakeshwari Cotton Mills Ltd.
vs. Commissioner of Income Tax, West Bengal,11 has held that the restrictions on the use of
the discretionary authority conferred in the Supreme Court under Article 136 are impossible
to specify precisely, and the limitations are inherent in the form and character of the power
itself. Because it is an extraordinary and overwhelming authority, it must be used sparingly
and with prudence, and only in rare circumstances. The Court, further stated that the intention
of this article is that Court ensures that no injustice is done by decision of any courts or
tribunals just because some laws made the judgement of these forums final and conclusive.

The above status has been upheld constantly. In the year 2016, the Supreme Court in the
Mathai George case, again declined to fetter the scope of Article 136 and concluded that
under Article 136, no effort shall be made to limit the Supreme Court’s authority. It would be
wiser to utilize the aforementioned authority with caution, rather than to limit the power
permanently.

“Question of Law” Under SLP

When a dispute is heard before the Supreme Court in a petition under Article 136, the Court
must use its discretionary authority ( not appellate jurisdiction) to determine whether to grant
leave in a particular case. If permission to appeal is given, the appellate jurisdiction of the
Supreme Court gets evoked and opens the gate for entry in the appellate arena, if need be the
respondent may be summoned to counter the petitioner. In some instances, the Court may
reject the appeal after granting the leave without notifying the respondent. The cause for
using the court’s appellate jurisdiction is not made out, if the leave to appeal is denied. The
Order can either be a speaking or non-speaking order. 12 In instances, where the Supreme
Court is not willing to exercise its discretionary power, it just passes a single-line order
dismissing the SLP at the start of proceedings without providing any reasons. Although, in
some circumstances, the Court may “leave the question of law open” to be discussed and
decided in an apt case, while declining the SLP.

The discretionary and appellate powers provided by the Article 136 was elaborated by the
Supreme Court in the case Khoday Distilleries Ltd. vs. Shri Mahadeshwara Sahakara

11
Dhakeshwari Cotton Mills Ltd. vs. Commissioner of Income Tax, West Bengal, (1955) 1 SCR 941.
12
Kunhayammed vs. State of Kerala, (2000) 6 SCC 359.

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Sakkare Karkhane Ltd., Kollegal13 ( Khoday Distilleries), referring to a large extent to the
decision in Kunhayammed vs. State of Kerala.14 The Article 136 jurisdiction is divided into
two stages: (I) Stage one, which lasts until the plea for special leave to file an appeal is
denied, and (II) Stage two, which begins only if the leave to appeal is granted and the special
leave petition is turned into an appeal. After the SLP is turned into an appeal, it is
renumbered and regarded as an appeal and heard as such by the Supreme Court as an
“appellate Court”, under Article 136. When the Supreme Court grants permission and acts on
the subordinate court/ tribunal’s or High Court’s order, the subordinate forum’s or High
Court’s order integrates into the Supreme Court’s decision, and the Supreme Court’s order
stays in effect and supersedes the subordinate Court/ tribunal’s or High Court’s order. On the
other hand, if SLP is declined, there is no merger and the order that is challenged is
considered final. In such instances, it does not matter whether there is a speaking or non-
speaking order. The only distinction between non-speaking and speaking order directed under
Article 136 is that the speaking or reasoned order declining the special leave petition may
include a “statement of law” ruled by the Supreme Court, which will be binding on all courts
in India under Article 141 of the Constitution, 15 or directions that will bind the parties to the
lis and the subordinate forum or High Court. However, a non-speaking order does not bind
either the parties to the dispute or declare a law under Article 141.

Thus, it is humbly submitted that it would not be right for the Supreme Court to leave the
matter of law open for future consideration if it rejects the special leave petition either
through a speaking or non-speaking order. The Supreme Court cannot go beyond the
boundaries of its authority under Article 136 and “leave the matter of law open” since a
dismissal results in exclusivity qua the parties to the dispute. The intent of Article 136 will be
defeated. Moreover, there exists no provision in the Constitution that confers Supreme Court
with power to leave any question of law open, involving Article 136. Apart from Article
143,16 the Constitution considers only “Substantial Question of law” and not just “question of
law”. Although it is true that a “substantial question of law” might be included in the
definition of “question of law”, such a matter would need to be certified as such by a High
Court under the Constitution. This power is conferred only to the High Court and not
Supreme Court. Though, the Apex Court can always evaluate a question of law under Article

13
Khoday Distilleries Ltd. vs. Shri Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal, (2019) 4 SCC
376.
14
Kunhayammed vs. State of Kerala, (2000) 6 SCC 359.
15
INDIA CONST. ART. 141.
16
INDIA CONST. art. 143.

8
136, after the grant of special leave, it is humbly submitted that the Court should not decline
the SLP and simultaneously leave the question of law open. When a special leave petition is
denied, the discretionary authority under Article 136 expires, and the power cannot be used to
leave a legal matter open.

Before the ruling of Khoday Distilleries, the Gujarat High Court elaborated the expression
“Question of law kept open” in the case of Hemal Ishwarbhai Patel vs. Veer Narmad South
Gujarat University,17 in which the question before the Court was whether the High Court can
review its judgement, in case the Apex Court leave the “question of law open”. The Gujarat
High Court referring to a prior decision of its own Court in CIT vs. Itegra Engg. India Ltd.,18
ruled that only the Supreme Court had the power to revisit the legal issue in the future.
According to the Gujarat High Court, keeping the expression question of law open will only
protect against any future claim that the Supreme Court has confirmed the ratio of the
challenged judgement, potentially leading to a merger claim or preventing the Supreme Court
from considering such an issue in better facts in future cases. Thus, it can be concluded that
Khoday Distilleries settled the issue that the refusal of the special leave petition will not
result in merger, and it will not result in any expression of opinion on the challenged
judgement; second, even if the phrase “question of law kept open” is absent from the
Supreme Court’s order, it will not prevent the Supreme Court from considering the issue at a
later time. The refusal of SLP does not amount to anything more than denial to exercise
discretionary jurisdiction.

The Supreme Court, while dismissing an SLP leaving the “question of law open”, can give an
excuse brazen lawyer, by persuading them to approach High Court for grant of Certificate
under Article 134-A on the basis that “question of law” is “substantial” and of public
importance and as the Supreme Court has left the matter open, and it is up to the Supreme
Court to determine.

17
Hemal Ishwarbhai Patel v. Veer Narmad South Gujarat University, 2016 SCC OnLine Guj 10037.
18
CIT vs. Itegra Engg. India Ltd., (2013) SCC OnLine Guj 7389.

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Pattern of Appellate Functioning
The Supreme Court is the apex appellate court of the Indian judiciary, thus, there is a need
recognize the pattern how it exercises the appellate function because it majorly concern the
backlog of cases at the Apex Court of the Country. To recognize the pattern here, we will
evaluate whether the Court focuses more on norm evaluation or case-by-case rescue i.e.,
individualized justice.

Case-by-Case Rescue
It is a well-known fact that the modern Supreme Court of India, does not restrict its
functioning to norm evaluation, especially, concerning the Special Leave Petition cases. The
Court generally interferes with a lower court judgement or overturn the decision, if it does not
agree with the outcome, irrespective of the fact that whether conflicting norm is resolved, a
new norm established or an old norm overturned.19

In a recent article by Andrew Green and Albert Yoon, the empirical analysis also suggests
that the modern Courts spend a substantial amount of time in deciding error-correction cases.
While examining the Supreme Court decisions published in Westlaw India from 1950 to
2010, it was found out that in the mid-1990s , the number of cases cited in the Supreme
Court’s opinion have declined sharply and it is only about one-fourth of the average number
of cases cited by US Supreme Court.20

The Courts which are concerned about case-by-case rescue are said to have more liberal
access policy as compared to those that has norm elaboration as their center of attention.
Truly, out of 3,42, 417 decisions of admission by the Court from 2010-2014, 47,806 cases
were admitted for regular hearing. As, it is tough to determine whether the rate of admission
is high or low, without having any benchmark, so it is advisable to record that by a
comparison with the United States Supreme Court- a professedly norm evaluating Court-
admits only about 1% of all cases pursuing admission, however Indian Supreme Court admits
14% of the cases seeking admission.21 A Courts which aims to rectify all kinds of mistakes of
the lower courts rather than just the mistakes concerning norm-elaboration, is said to be more
in consonance with liberal access.

19
Mathai @ Joby vs. George, (2010) 4 SCC 358.
20
Andrew Green and Albert H. Yoon, Triaging the Law: Developing the Common Law on the Supreme Court of
India, 14 J. Empirical Legal Stud. 683, 693-695 (2017).
21
S Kalantry, The Supreme Court of India: A People’s Court ?, OSF, ( Oct. 10, 2021, 7:03 pm)
https://files.osf.io/v1/resources/pbwsm/providers/osfstorage/5d2de9275d2cdc001801905f?
action=download&direct&version=1.

10
Further, the mere volume of cases adjudicated by a Court every year indicates that its aim is
to correct mistakes case-wise. The Court creates almost 10,000 written opinions on merits
every year, each being 10 pages in length. From this, it is clear that the Courts are not
formulating new rules or laws in each of these cases.

In addition to this, it was found out that during the period between 2010-2014, almost 93% of
appeals were heard by two-judge benches. According to the procedure, a two-judge bench
decision can be overturned only by three judges and so on. The evidence that they sit in small
benches indicates that they are either not reversing the law/ rules or they are doing it without
complying with procedural norms. A Court targeting norm elaboration tends to admit cases
which involve re-evaluation of earlier established norms. As a result, in a large majority of
the cases it hears, such a court would overrule (or at the very least alter) precedent. The Court
overruled precedent in less than 4% of the cases. 22 Sure, overruling precedent is not the only
way of evaluation of norm. Although, overruling at such a low rate implied that Court is not
majorly concerned with norm evaluation/ elaboration.

Moreover, there has been various example of cases in which the Court simply re-evaluated
the dispute resolved by the lower Court. It even accept cases involving ascertainment of
specific amount of bail in a criminal case or a grant of divorce. For instance, in the case of
Y.S. Jagan Mohan Reddy vs. CBI,23 where the plaintiff, a Member of Parliament was charged
with offences concerning corruption. He was arrested, while the investigation and trial is
pending. He applied for bail in both the trial court and the high court, but both refused his
request. The only point before the Supreme Court in the appeal was whether or not bail
should be granted. The Court granted the appeal, describing the charges against Reddy as
well as the concerns voiced by the investigating authorities that if Reddy was released on
bail, he would obstruct the inquiry. The Court decided to issue bail based on all of these
factors and the tremendous scale of the case, as well as the request of the investigating
authority for more time to complete the investigation. This entire deliberation revolves
around the facts of the case. The decision in the Reddy’s Case follows a similar pattern in
bail matters, where the Court does not examine or explore law or cite precedents.24

Another example, is a case of divorce, where Darshan Gupta filed divorce against Radhika
Gupta, his wife, accusing her of treating him with cruelty and of being of unsound mind,
22
Ibid., 10.
23
Y.S. Jagan Mohan Reddy vs. Central Bureau of Investigation, (2013) 7 SCC 439.
24
Jignesh vs. State of Gujarat, (2011) 10 SCC 591, and Maruti Nivrutti Navale vs. State of Maharashtra, (2012)
9 SCC 235.

11
these are legitimate grounds for divorce under applicable law. This divorce petition was
rejected by the Family Court and when appealed to High Court, it upheld the decision of the
lower Court. When the appeal was made before the Supreme Court, the Court admitted the
case and tried to reach an amicable settlement. Although it failed, then the case was decided
on merits. In the entire decision, the Court just talked about the procedural history and
evidences recorded by the lower Courts. It then proceeded to make its own determination as
to whether the circumstances supported a claim of cruelty and if Darshan Gupta had
established that his wife was mentally ill. In this entire discussion, the Court did not make
any reference to standards for determining whether an individual is of unsound mind or what
accounts for cruelty. The only point of law was discussed when one of the party contended
that though the law does not support the divorce, but the Court should exercise its power to
do complete justice among the parties to dissolve the marriage. This argument was dismissed
because the facts of the case did not lend itself to the Court exercising such authority. In the
end, the Court upheld the lower courts’ ruling based on its analysis. This is not an uncommon
situation.25 It has been acknowledged by the Justices of the Court that Court generally act as
an “Ordinary Forum of Appeal”, jumping into particular controversies as soon as it is brought
to its attention that the case has failed to deliver substantive justice.

Thus, on the basis of the above data and facts, we can assume that the Supreme Court
Justices, while making admission decisions, aims at identifying the matter where the lower
has committed any mistake with regards to facts or application of facts to law.

Case-by-Case Rescue For the Common Person

In the above section, it has been found out that the Court engages in individualized error
correction in its admission process, so, while doing this whether the Court prioritizes
common person or not, needs to be taken into consideration.

Balakrishnan Rajagopal claims that the Supreme Court is increasingly biased against the
poor.26 Manoj Mate believes that the Court’s judgements support companies and corporate
interests when they claim fundamental rights violations, but against labor interests and other
stakeholders whose claims would undermine globalization and economic liberalization, citing

25
Darshan Gupta vs. Radhika Gupta, (2013) 9 SCC 1.
26
Balakrishnan Rajagopal, Pro-Human Rights but Anti-Poor ? A Critical Evaluation of the Indian Supreme
Court from a Social Movement Perspective, 18 Human Rights Review, 157, 167-169 (2007).

12
cases from after the 1990s.27 Varun Gauri argues that the Supreme Court is progressively
disfavoring disadvantaged populations, based on empirical evidence.28

However, Sudhir Krishnaswamy and Madhav Khosla has doubted the general view that Court
work in a conservative direction. In examining the empirical data by Shylashri Shankar,
Krishnaswamy and Khosla indicated that the one of the causes behind lower win rates for
some types of cases over a period of time may point out something about the process of
admission. It has been specifically noted that “ the higher rejection rate may well be the result
of admission of higher number of poorly drafted or pleaded cases”. This suggests that the
Court is favoring weaker cases from specific groups, which explains why such groups have a
lower victory rate.29

Now, we seek to ascertain that whether the Court in current years has behaved as Court for
Common People, as it ought to be. We believe that a court that acts as if it were a court for
the common person will favor individuals over the government in civil cases, defendants over
prosecutors in criminal cases, and cases involving constitutional problems over cases
involving other issues. in criminal proceedings, as well as situations involving constitutional
problems, over cases involving other matters.

Better Access to Individuals and Criminal Defendants Over the Government:

We hypothesize that a group which is favoured for access will have lower success rates on
merits when appealed to Supreme Court as compared to the group not favoured for access.

When the prosecution appeals to the Court in criminal matters, the Court decides in its favour
58.7% of the time. The Court decides in favour of the defendant 50.8 percent of the time
when he is the petitioner. This shows that when a criminal defendant appeals, the Court has a
lower bar for admissions than when the prosecution does.

When the petitioner is the government (69.3%), the Court decides favouring the petitioner at
a significantly higher rate than when the petitioner is an individual (53.0 percent ). Again,
“underdogs” (those who are up against the government) have a lower rate of winning before

27
Manoj Mate, Globalization, Rights and Judicial Review in the Supreme Court of India, 25 Wash. L. Rev. 643
(2016).
28
Varun Gauri, Public Interest Litigation in India: Overreaching or Underachieving ?, World Bank Policy
Research Working Paper No. 5109, (2009) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1503803.
29
MAYUR SURESH AND SIDDHARTH NARAIN, THE SHIFTING SCALES OF JUSTICE, 151, (Orient Black Swan,
2019).

13
the Supreme Court on the merits. If this analysis is correct, individuals’ lower win rates in
cases against the government indicate that the Court favours them for access because the
Court is less choosy in accepting petitions from this category, on average, their petitions
show weaker cases for reversal than those filed by the government.30

Prioritizing Access for Constitutional Cases:

Here, we will determine whether the Court provides a favourable access to constitutional
cases because in a system without a distinct Constitution Court like India, requires the Apex
Court to be more receptive for such category of cases.

It has been found that only a small chunk of cases constitute constitutional questions i.e., 4%
of the caseload of the Court. However, in previous times between 1950 to 1967, this
percentage was much more (15.6%) as compared to the current one. Most of these were
cases relating to fundamental rights which is part of constitutional cases.31

Nonetheless, considering the Court’s massive backlog, this little slice of the docket represents
a significant number of cases—274 rulings deciding constitutional issues over a period of
five-year. Therefore, it is not necessary that raw numbers represents true picture of whether
the Court is willing to accept more constitutional cases as compared to others. Further, The
Court reverses roughly 13 percentage points less frequently in constitutional issues than in
other cases, indicating that the Court may establish a lower bar for accepting constitutional
cases for merits hearings.32

Conclusion
The power granted to Supreme Court under Article 136 of the Constitution to grant special
leave in case certificate for appeal is not provided by the High Court, leads to certain
contentions which arise when the SLP is dismissed. If the SLP is dismissed by Supreme
Court either by speaking or non-speaking order, then the Doctrine of merger will not apply

30
Supra, Note No. 21.
31
George H. Gadbois, The Supreme Court of India: A Preliminary Report of an Empirical Study, 4 Journal of
Const. and Par. Stud. 44 (1970).
32
Supra Note No. 30.

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and the decision of High Court will persists. Further, the High Court is also empowered to
review petition against the dismissal but only on merits.

In addition to this, the Supreme Court cannot answer the question of law in the SLP because
while granting leave the Supreme exercise discretionary power and not appellate power. If
Supreme Court tries to resolve the dispute while deciding SLP, then it will go beyond its
discretionary power, however, it does not preclude Supreme Court from discussing the
“question of law kept open” at some point of time in the future.

As per the data mentioned above, the Supreme Court seem to take more of individualized
cases, as compared to norm evaluation, this may be one of the reasons for the piling of cases
in the Supreme Court. The examples referred above, show that Supreme Court admits cases
involving general issues such as divorce or bail matter, which are actually prerogative of
family Court and District Court respectively. So, Supreme Court should be very cautious
while admitting cases from lower courts because most of the times they are exclusive to the
parties and does not discuss the law or establish any precedent, which one of the major
functions of the Apex Court of a Court.

Bibliography
 V.N. Shukla, CONSTITUTION OF INDIA, (2019), Eastern Book Company
 Durga Das Basu, INTRODUCTION TO THE CONSTITUTION OF INDIA, (2018),
Lexis-Nexis
 Seervai H.M., CONSTITUTIONAL LAW OF INDIA (2015), Universal Law Publishing
Co
 Mahabir Prasad Jain, INDIAN CONSTITUTIONAL LAW, (2018), Lexis- Nexis
 Mayur Suresh and Siddharth Narain, THE SHIFTING SCALES OF JUSTICE, (2019)
Orient Black Swan

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