Supreme Court of India
Bihar Legal Support Society vs The Chief Justice Of India & Anr on 19 November, 1986
Equivalent citations: 1987 AIR 38, 1987 SCR (1) 295, AIR 1987 SUPREME COURT 38, 1986 (4) SCC 767, 1987 (4.1) IJR (SC) 6, 1987 CURCRIJ 24, 1987 IJR 87, 1986 SCC(CRI) 537, 1987 PATLJR 12.2, 1986 JT 884, (1986) 4 SUPREME 264, (1987) 31 DLT 40, (1986) WRITLR 469, (1987) 1 CRILC 420, (1987) MADLW(CRI) 1, (1987) PAT LJR 12(2), (1987) 1 SCJ 164, (1986) ALLCRIC 563, (1987) BLJ 89
Author: P.N. Bhagwati
Bench: P.N. Bhagwati, Misra Rangnath, V. Khalid, G.L. Oza, M.M. Dutt
PETITIONER:
BIHAR LEGAL SUPPORT SOCIETY,
Vs.
RESPONDENT:
THE CHIEF JUSTICE OF INDIA & ANR.
DATE OF JUDGMENT19/11/1986
BENCH:
BHAGWATI, P.N. (CJ)
BENCH:
BHAGWATI, P.N. (CJ)
MISRA RANGNATH
KHALID, V. (J)
OZA, G.L. (J)
DUTT, M.M. (J)
CITATION:
1987 AIR 38 1987 SCR (1) 295
1986 SCC (4) 767 JT 1986 884
1986 SCALE (2)848
ACT:
Constitution of India, Article 136--Special leave peti-
tions against refusal of bail/anticipatory bail--Immediate
listing of-- Within administrative jurisdiction of Chief
Justice--Opportunity of mentioning to be availed of.
Criminal Procedure Code, 1973, s.439--Bail/anticipatory
bail-Refusal of--Special leave petition to Supreme
Court--Urgent listing--Right to.
Judicial Reform--National Court of Appeal--Setting
up--Necessity of.
HEADNOTE:
The writ petition, a sequel to the expeditious consider-
ation of the bail application of two industrialists by this
Court at a late night sitting on 5th September, 1986, solic-
ited the same anxiety to permeate the attitude and inclina-
tion of the Court in all matters where questions relating to
the liberty of citizens arose, and required that the special
leave petitions of small men against orders refusing ball
must receive the same importance and should be taken up for
consideration immediately.
Disposing of the writ petition, the Court,
HELD: The Supreme Court should not ordinarily, save in
exceptional cases, interfere with orders granting or refus-
ing bail or anticipatory bail, because these are matters in
which the High Court should normally be final arbiter. It
should interfere only in the limited class of cases where
there is a substantial question of law involved which needs
to be finally laid at rest by it, or where there is grave,
blatant and atrocious miscarriage of justice. [299 E, A]
It is not correct to say that this Court is not giving
to the small men the same treatment as it is giving to the
big industrialists. Their special leave petitions are as
much entitled to consideration as that of the industrial-
ists. The Court has always regarded the poor and the disad-
vantaged as entitled to preferential consideration than the
rich and the affluent, the businessmen and the like. [298 A,
297 D]
296
The Court has evolved, as a matter of self discipline,
certain norms to guide it in the exercise of its discretion
in cases where special leave petitions are filed against
orders granting or refusing bail or anticipatory bail. The
question whether such petitions should be listed immediately
or not is a question within the administrative jurisdiction
of the Chief Justice and every such petitioner has an oppor-
tunity of mentioning the case before him in that capacity
for urgent listing and where a case deserves urgent listing
he makes an appropriate order. [299 C, 298 BC]
The Supreme Court was never intended to be a regular
court of appeal against orders made by the High Court or the
Sessions Court or the Magistrates. It was created as an apex
court for the purpose of laying down the law for the entire
country and extraordinary jurisdiction for granting special
leave was conferred upon it under Article 136 of the Consti-
tution so that it could interfere whenever it found that the
law was not correctly enunciated by tower courts or tribu-
nals and it was necessary to pronounce the correct law on
the subject. This extraordinary jurisdiction could also be
availed by the apex court for the purpose of correcting
grave miscarriage of justice, but such cases would be excep-
tional by their very nature. It is not every case where the
apex court finds that some injustice has been done that it
would grant special leave and interfere. That would be
converting the apex court into a regular court of appeal and
moreover by so doing it would soon be reduced to a position
where it will find itself unable to remedy any injustice at
all on account of the tremendous backlog of cases which is
bound to accumulate. [298 D-F]
It would be desirable to set up a National Court of
Appeal which would be in a position to entertain appeals by
special leave from the decisions of the High Courts and the
Tribunals in the country in civil, criminal, revenue and
labour cases and so far as the present apex court is con-
cerned, it should concern itself only with entertaining
cases involving questions of constitutional law and public
law. [298 H]
JUDGMENT:
ORIGINAL JURISDICTION; Writ Petition (Crl.) No. 540 of 1986 (Under Article 32 of the Constitution of India) Jaya Narain Petitioner-in-person.
The Judgement of the Court was delivered by BHAGWATI, C J: This writ petition has been filed by the Bihar Legal 297 Support Society which is a registered Society having as its main aim and objective provision of legal support to the poor and disadvantaged sections of the community with. a view to assisting them to right for their constitutional and legal rights through the process of law. The occasion for filing the writ petition is set out in paragraph 2 where it has been stated that a' Bench of this Court sat late at night on 5th September 1986 for considering the bail appli- cation of Shri Lalit Mohan Thapar and Shri Shyam Sunder Lal and that the same anxiety which was shown by this Court in taking up the bail application of these two gentlemen must "permeate the attitude and inclination of this Hon'ble Court in all matters where questions relating to the liberty of citizens, high or low, arise" and that the bail applications of "small men" must receive the same importance as the bail applications of "big industrialists." The petitioner, there- fore, prays that special leave petitions against orders refusing bail or anticipatory bail should be taken up by this Court immediately in the same manner in which the special leave petition of these two "big industrialists" was taken up by the Court.
Now, we may point out that so far as this Court is concerned, the special leave petitions of "small men" are as much entitled to consideration as special leave petitions of "big industrialists". In fact, this Court has always regard- ed the poor and the disadvantaged as entitled to preferen- tial consideration than the rich and the affluent, the businessmen and the industrialists. The reason is that the weaker sections of Indian humanity have been deprived of justice for long, long years: they have had no access to justice on account of their poverty, ignorance and illitera- cy. They are not aware of the fights and benefits conferred upon them by the Constitution and the law. On account of their socially and economically disadvantaged position they lack the capacity to assert their fights and they do not have the material resources with which to enforce their social and economic entitlements and combat exploitation and injustice. The majority of the people of our country are subjected to this denial of access to justice and, overtaken by despair and helplessness, they continue to remain victims of an exploitative society where economic power is concen- trated in the hands of a few and it is used for perpetuation of domination over large masses of human beings. This court has always, therefore, regarded it as its duty to come to the rescue of these deprived and vulnerable sections of Indian humanity in order to help them realise their economic and social entitlements and to bring to an end their oppres- sion and exploitation. The strategy of public interest litigation has been evolved by this Court with a view to bringing justice within the easy reach of the poor and the disadvantaged sections of the community. This Court has always shown the greatest concern and anxiety for the wel- fare of the large masses of people in the country who are living a life of want and destitution, misery and suffering and has become a symbol of the hopes and aspirations of millions of people in the 298 country. It is, therefore, not correct to say that this Court is not giving to the "small men" the same treatment as it is giving to the '"big industrialists". In fact, the concern shown to the poor and the disadvantaged is much greater than that shown to the rich and the well-to-do because the latter can on account of their dominant social and economic position and. large material resources, resist aggression on their rights where the poor and the deprived just do not have the capacity or the will to resist and fight.
The question whether special leave petitions against refusal of bail or anticipatory hail should be listed imme- diately or not is a question within the administrative jurisdiction of the Chief Justice and we cannot give any direction in that behalf. But, we may point out that every petitioner who files a special leave petition against refus- al of bail or anticipatory hail has an opportunity of men- tioning his case before the learned Chief Justice in his administrative capacity for urgent listing and wherever a case deserves urgent listing, the Chief Justice makes an appropriate order for urgent listing. It may, however, be pointed out that this Court was never intended to be a regular court of appeal against orders made by the High Court or the sessions court or the Magistrates. It was created as an apex court for the purpose of laying down the law for the entire country and extraordinary jurisdiction for granting special leave was conferred upon it under Article 136 of the Constitution so that it could interfere whenever it found that law was not correctly enunciated by the lower courts or tribunals and it was necessary to pro- nounce the correct law on the subject. This extraordinary jurisdiction could also be availed by the apex court for the purpose of. correcting grave miscarriage of justice, but such cases would be exceptional by their very nature. It is not every case where the apex court finds that some injus- tice has been done that it would grant special leave and interfere. That would be converting the apex court into a regular court of appeal and moreover, by so doing, the apex court would soon be reduced to a position where it will find itself unable to remedy any injustice at all, on account of the tremendous backlog of cases which is bound to accumu- late. We must realise that in the vast majority of cases the High Courts must become final even if they are wrong. The apex court can also be wrong on occasions but since there is no further appeal, what the apex court says is final. That is why one American Judge said of the Supreme Court of the United States: '"We are right because we are final: we are not final because we are right". We must, therefore, recon- cile ourselves to the idea that like the apex court which may be wrong on occasions, the High Courts may also be wrong and it is not every error of the High Court which the apex court can possibly correct. We think it would be desirable to set up a National Court of Appeal which would be in a position to entertain appeals by special leave from the decisions of the High Courts and the Tribunals in the coun- try in civil, criminal, revenue and labour cases and so far as the present apex court is concerned, it 299 should concern itself only with entertaining cases, involv- ing questions of constitutional law and public law. But until any such policy decision is endorsed by the Govern- ment, the apex court must interfere only in the limited class of cases where there is a substantial question of law involved which needs to be finally laid at rest by the apex court for the entire country or where there is grave, bla- tent and atrocious miscarriage of justice. Sometimes, we Judges feel that when a case comes before us and we find that injustice has been done, how can we shut our eyes to it. But the answer to this anguished query is that the Judges of the apex court may not shut their eyes to injus- tice but they must equally not keep their eyes too wide open, otherwise the apex court would not be able to perform the high and noble role which it was intended to perform according to the faith of the Constitution makers. It is for this reason that the apex court has evolved, as a matter of self-discipline, certain norms to guide it in the exercise of its discretion in cases where special leave petitions are filed against orders granting or refusing bail or anticipa- tory bail. These norms have to be articulated in order that the people may know as to what is the judicial policy of the apex court in entertaining such special leave petitions. That would go a long way towards introducing a measure of certainty in judicial response to such special leave peti- tions and would also tend to reduce the inflow of such special leave petitions. This was the reason why a Bench of this Court consisting of two of us, viz., the Chief Justice and Justice Ranganath Misra, clearly enunciated in an Order made on 30th October 1985 in special leave petition (crimi- nal) No. 2938 of 1985 that this Court should not "interfere with the orders granting or refusing bail or anticipatory bail"and that "these are matters in which the High Court should normally become the final authority. We reiterate this policy principle laid down by the Bench of this Court and hold that this Court should not ordinarily, save in exceptional cases, interfere with orders granting or refus- ing bail or anticipatory bail, because these are matters in which the High Court should normally be the final arbiter. The writ petition will stand disposed of in these terms. We appreciate the anxiety and concern shown by the petition- er for the poor and the disadvantaged in bringing this public interest litigation.
P.S.S. Petition
disposed of.
300