Will Bihar Prosecution Manual, 2003 prevail over High Court's judgments of 1992 and 1996?

In Punit Kumar Srivastava vs. The State of Bihar through the Additional Chief Secretary, Home, Government of Bihar & Ors. (2026), Patna High Court's Justice Dr. Anshuman concluded:"13. In light of the provisions under Rule 27 of the Bihar Prosecution Manual, 2003, the contention of the petitioner is not sustainable in the eyes of law that, being a Prosecution Officer, he shall always be posted as a District Prosecution Officer, as the Rules governing him, namely the Bihar Prosecution Manual, 2003, itself provide specific provisions for appointment/deputation in other departments as well, wherever the Government or the parent department is in need. 14. So far as the judgment on which the petitioner relied shall not applicable upon the petitioner as those judgments are of 1996 and of 1992 when the Bihar Prosecution Manual has not been enacted. This Court is of the firm view that the services of the petitioner shall be guided by the Bihar Prosecution Manual, 2003 and not by any other law till the said prosecution manual any of its provision shall not be declared ultra vires by the Court of competent jurisdiction. Working in any office on deputation cannot be said to be worked under the administrative and disciplinary control of the said department due to the reason that the petitioner is ultimately the employee of Bihar Prosecution Service and the rule framed under Rule 31 of the Manual shall also binding upon upon. 15. In the light of the discussions and reasons mentioned above, this Court is of the firm view that petitioner has no case and, hence, this writ petition is dismissed." The case was filed on January 28, 2025. It was registered on February 1, 2025. 

The petitioner had filed the writ petition for issuance of writ of certiorari to quash the order of transfer vide Notification No. 145 dated January 16, 2025 at Serial No. 2 from the post of Sub Divisional Prosecution Officer, posted in the District Prosecution Office, Rohtas, Sasaram to the office of Vigilance Investigation Bureau, Bihar as law Officer and further prayer for quashing the relieving order No.8/2025 contained in Memo No. 144 dated April 4, 2025. The counsel of the petitioner submitted that the petitioner was appointed as Assistant Prosecution Officer vide Notification No. 1011 dated September 25, 2017 and was subsequently promoted to the post of Sub-Divisional Prosecution Officer vide Notification No. 2513 dated October 31, 2023, both issued by the Directorate of Prosecution, Home Department, Government of Bihar, Patna. It was also submitted that the petitioner, vide Letter No. 20 dated January 17, 2025, made a representation before the Director of Prosecution requesting that he be posted in any District
Prosecution Office by rectifying or omitting his name at Serial No. 2 of the transfer notification. A similar representation was also submitted before respondent no. 2, namely, the Additional Chief Secretary, Home
Department, Government of Bihar, Patna, but no relief was granted. The counsel also submitted that the High Court, vide order dated November 14, 1995 passed in CWJC No. 5573 of 1995, had directed the State authorities to create a separate prosecution cadre independent of the police department in terms of Section 25 of the Code of Criminal Procedure, so as to ensure that no Assistant Public Prosecutor remains subordinate to police officers. The order was challenged by the State of Bihar in LPA No. 294 of 1996, which came to be dismissed by a Division Bench of vide order dated November 4, 1996. The Special Leave Petition preferred before the Supreme Court was also dismissed. 

Notably, the reasoned order of the Supreme Court has not been cited in the order.  

It was also submitted that pursuant thereto, the Prosecution Manual, 2003 was framed and placed before this Court in MJC No. 2110 of 1997, whereby the Directorate of Prosecution and Prosecution Officers were freed from the administrative and disciplinary control of the police department. The counsel submitted that, after the enactment of the Code of Criminal Procedure, 1974, the prosecution service was intended to function independently of police control. The counsel also submitted that in a similar matter, where a Prosecution Officer was posted at Police Training College, Hazaribagh under the administrative control of the Principal-cum-D.I.G. of Police, a Division Bench of the High Court, vide order dated May 21, 1992 passed in CWJC No. 4287 of 1992, had stayed such transfer notification and directed appropriate posting. It was also submitted that despite settled legal position, the respondent authorities were ignoring the law as well as binding precedents of the High Court, inasmuch as Prosecution Officers cannot be placed under the administrative and disciplinary control of the police department or its officers. It was submitted that the petitioner was not even afforded an opportunity to exercise his option for posting.

The counsel for the respondent-State submitted that the petitioner was an officer of the Bihar Prosecution Service and was presently holding the post of Sub-Divisional Prosecution Officer. In the interest of prosecution administration, the Government of Bihar, Home Department, Directorate of Prosecution, issued Notification No. 145 dated January 16, 2025, whereby 13 Prosecution Officers, including the petitioner, were transferred. It was submitted that all such officers, except the petitioner, joined their respective places of posting. It was submitted that the petitioner was transferred to the Vigilance Investigation Bureau, Patna, as a Law Officer against a sanctioned post, where several Prosecution Officers were already posted and drawing their salaries. The counsel submitted that the petitioner was duly relieved by the District Prosecution Officer In-charge, Rohtas (Sasaram), vide Order No. 8/2025, Memo No. 144 dated April 4, 2025, in compliance with the notification. The counsel further submitted that as per Resolution Memo No. 4521 dated April 3, 1989 issued by the Department of Personnel and Administrative Reforms, Government of Bihar, a gazetted officer was required to join the transferred place of posting within seven days of receipt of the transfer order, failing which departmental proceedings, including suspension, may be initiated. It was also mandated that the controlling officer must relieve such officer within the stipulated period. 

It was also contended that Rule 27 of the Bihar Prosecution Manual, 2003 permits posting/deputation of Prosecution Officers in other departments for legal work. The petitioner, being a government servant, is bound by the applicable rules and regulations. Accordingly, it was submitted that the writ petition was devoid of merit and is liable to be dismissed. 

Responding to the State's counsel, counsel for the petitioner submits that Rule 27 of the Bihar Prosecution Manual, 2003 does not authorize posting of Prosecution Officers under the administrative department or its officers, which would be contrary to the settled legal position. It was also submitted that such action is also in violation of Rule 31 of the Prosecution Manual, 2003. 

Justice (Dr.) Anshuman observed: "11. After hearing the parties and perusal of the record, it transpires to this Court that with a view to adjudicate this matter, it is necessary to quote the relevant extract of Bihar Prosecution Manual, 2003, which has been published in the Bihar Gazette (Extraordinary) No.177 dated 21st April, 2003. Article 309 of the Constitution of India empowers the appropriate legislature to regulate the recruitment and conditions of service for public servants serving the Union or a State. Admittedly, the petitioner who is an Officer of Bihar Prosecution Service and working as Bihar Prosecution Officer whose services have been guided by the Bihar Prosecution Manual, 2003. The State relied on Rules 27 and 31 of the said Manual. It transpired to the High Court that every Prosecution Officer was to work under the Department of Home and according to Rule 27 of the Bihar Prosecution Manual, 2003, 5 percent of total sanctioned post shall be available as reserve post and their appointment/deputation may be made in other department for doing the legal work."

Justice Dr. Anshuman sets aside orders by Bihar State Food and Civil Supplies Corporation

In Manish Kumar vs.The State of Bihar through the Chief Secretary, Government of Bihar & Ors. (2026), Justice Dr. Anshuman delivered a 21-page long judgement dated May 14, 2026, wherein, he concluded: "20. In the present case, although the disagreement note refers to alleged violations of Letter Nos. 11067 dated 12.12.2013, 435 dated 13.01.2014, 7714 dated 06.12.2013, and 1162 dated 26.12.2013, it transpires that all those documents had already been duly considered by the Inquiry Officer, as reflected in paragraph 9 of the inquiry report. However, the Disciplinary Authority has failed to assign any specific or cogent reason as to why it disagrees with the findings of the Inquiry Officer. This Court has also examined the deed of agreement and deed of pledge referred to in Letter No. 435 dated 13.01.2014 (Annexure-3 to the writ petition) and finds that the conclusions drawn by the Inquiry Officer are in accordance with law. In the absence of any specific indication of violation in the disagreement note, this Court holds that the disagreement memo dated 11.03.2025 is legally unsustainable and suffers from material defects as well as in gross violation of Rule 18 of the CCA Rules, 2005." 

The other three respondents were: 2. Principal Secretary, General Administration Department, Bihar, 3. The Under Secretary, General Administration Department, Bihar, and  4. Managing Director, Bihar State Food and Civil Supplies Corporation (BSFCSC).  

The judgement reads:"....upon perusal of the order of punishment contained in Memo No. 10383 dated 06.06.2025, it is evident that the reply submitted by the petitioner to the second show-cause notice has not been duly considered. A mere statement that the reply has been “analysed” by a quasi-judicial authority, without any discussion or reasoning, does not satisfy the requirement of law. Accordingly, the said order of punishment is held to be bad in law and liable to be set aside."

Justice Dr. Anshuman observed: "22. Since the disagreement memo itself is vitiated in law, and the order of punishment is based upon such defective disagreement, the consequential order passed by the Reviewing Authority also cannot be sustained, as it is based on proceedings conducted in violation of Rule 18(4) of the CCA Rules, 2005. Accordingly, both the review order contained in Memo No. 12577 dated 09.07.2025 and the original order of punishment contained in Memo No. 10383 dated 06.06.2025 are hereby set aside." 

The writ petition was filed for issuance of an appropriate writ in the nature of certiorari for quashing the Resolution contained in Memo No. 10383 dated 06.06.2025, issued under the signature of the Under Secretary to the Government, General Administration Department, Bihar, Patna, whereby and whereunder the petitioner has been inflicted with the punishment of censure (pertaining to the allegation year 2013–14) along with stoppage of one annual increment of salary with non-cumulative effect. The petitioner further prays for quashing of the Resolution contained in Memo No. 12577 dated 09.07.2025, issued under the signature of the Under Secretary to the Government, General Administration Department, Bihar, Patna, whereby and whereunder the review petition preferred by the petitioner has been rejected. The petitioner sought a direction upon the respondent authorities to grant all consequential benefits to the petitioner with effect from the due date, including promotion, to which the petitioner is legally entitled. The petitioner had prayed for issuance of any other appropriate writ(s), order(s), or direction(s) as the Hig Court may deem fit and proper in the facts and circumstances of the case.

From a plain reading of these provisions, it was evident that the Disciplinary Authority was under an obligation to assign reasons for disagreeing with the findings recorded by the Inquiry Officer.

May Day, Labour Codes, Tribunalisation of Judiciary and Workers Unrest

Buried within the general phenomenon of democratic decline is a set of cases in which charismatic new leaders are elected by democratic publics and then use their electoral mandates to dismantle by law the constitutional systems they inherited. These leaders aim to consolidate power and to remain in office indefinitely, eventually eliminating the ability of democratic publics to exercise their basic democratic rights, to hold leaders accountable, and to change their leaders peacefully. Because these legalistic autocrats" deploy the law to achieve their aims, impending autocracy may not be evident at the start. 

-Kim Lane Scheppelet in "Autocratic Legalism", The University of Chicago Law Review, Vol. 85, No. 2 (March 2018), pp. 545-584

Chairing the symposium on May Day, senior advocate and president of Advocates  Association Yogesh Chandra Verma, member, Bihar State Bar Council reminded all as to "why the day is celebrated in the memory of workers all over USA who took to the streets to demand a better working conditions and 8-hour work day, which paved the way for enactment of laws for the protection of workers rights across the world including India. In Chicago’s Haymarket Square too there were demonstrations of the working-class which lasted for days ended in tragedy." 

Dr Gopal Krishna, an advocate and researcher delivered his talk on the subject of the symposium. He recollected the blood-soaked journey of the struggle for labour laws which reached a penultimate point on May 1, 1886, when police killed a large number of workers and executed four of the movement’s most prominent leaders including August Spies, the trade unionist.  

 

Notably, during his trial August Spies said:If you think that by hanging us you can stamp out the labor movement — the movement from which the downtrodden millions, the millions who toil and live in want and misery, the wage slaves, expect salvation — if this is your opinion, then hang us! Here you will tread upon a spark, but here, and there and behind you, and in front of you, and everywhere the flames will blaze up. It is a subterranean fire. You cannot put it out. The ground is on fire upon which you stand." The subsequent May Days became an occasion for workers across the world come on the streets to contest the anti-labour laws and contracts. Through its struggle the labour movement gained the right to the eight-hour day, which is under attack. 

In India, the first official Labor Day (May Day) demonstration was held in Madras on May 1, 1923. The event was organized by the Labour Kisan Party of Hindustan led by the prominent leader and advocate Malayapuram Singaravelu Chettiar at Marina Beach and the beach opposite the Madras High Court to demand an 8-hour workday and official national holidays for laborers.

Dr. Krishna said: "This year the May Day in the country was celebrated in the backdrop of workers' unprecedented protest in India's National Capital Region wherein, workers from 83 factories protested against the 12-hour, 7-day working week, and unsafe working conditions."

Advocates who graced the occasion of May Day with their presence included: senior advocate Dr. Raja Ram Rai, Yogesh Chandra Verma, Uday Pratap Singh, Bindu, Ram Jiban Prasad Singh,  Manju Sharma, Manish, Dr. Gopal Krishna, Jnan Chandra Bhardwaj, Pooja, Rashmi and Jnan Chandra Bhardwaj, Angad, Manil Lal, Sanjana, Rajan Kumar and Vishal Kumar Arya.       

Most of these workers work on a monthly wage of Rs.11,000 to Rs.12,000. Uttar Pradesh governments like other State governments was required to notify revised wage rates and dearness allowance (DA) rates from time to time but the State government has not revised rates for last 12 years. For four full days, from April 9 to 13, 2026, the  workers owned the roads. The State police cracked down on union leaders of major central trade unions and several activists and several leaders were placed under house arrest from April 9 onwards. On April 10, 2026, thousands of garment workers at the Phase 2 Hosiery Complex, Noida walked away from their jobs. The workers demanded a minimum basic wage of Rs 20,000 for an 8-hour day. The sought parity with Haryana’s recently notified wage revision, and an end to the contract labour system. The worker's strike reached Motherson Group and Richa Global Exports by the end of the third day. More than 42,000 workers protested across 83 locations in Noida, Greater Noida and Faridabad on by April 14. Hundreds of 300 people were arrested. Dr. Krishna referred to the forced disappearance of workers and deaths in factories. Not a week passes without news about deaths of workers and migrant workers. He underlined that soldiers, police and security force employees are also workers in the uniform.  Commenting on the new four labour codes, he pointed out how role of courts have been undermined. The Industrial Relations Code, 2020 which came into force on November 21, 2025 has effectively abolished Labour Courts. It has created one-window adjudication forum at the Industrial Tribunal level. Notably, a notification released on December 8, 2025 by the Union Ministry of Labour and Employment, called the Industrial Relations (Removal of Difficulties) Order, 2025, revealed the institutional vaccum, by permitting existing Labour Courts to continue till the operationalisation of the new Tribunals. Union Ministry of Labour and Employment made a claim that "The Labour Codes do not abolish Labour Courts, they transform them into Industrial Tribunals to ensure faster and more efficient access to justice for workers." This claim is an admission that tribunalisation of courts is being naturalised. 

 

Union Ministry of Labour and Employment would do well to pay heed to Supreme Court's decision dated November 19, 2025 in Madras Bar Association vs. Union of India (2026), wherein, the Court concluded:" 151. We direct that unless the constitutional concerns repeatedly highlighted by this Court in the series of tribunal-related judgments are fully addressed and cured, and unless Parliament enacts an appropriate legislation that faithfully gives effect to those principles, the principles and directions laid down in MBA (IV) and MBA (V) shall continue to govern all matters relating to the appointment, qualifications, tenure, service conditions, and allied aspects concerning tribunal members and chairpersons. These judgments represent the binding constitutional standards necessary to preserve judicial independence and to ensure that tribunals function as effective and impartial adjudicatory bodies. Accordingly, they shall operate as the controlling framework. 152. As consistently directed in the earlier judgments of this Court, the executive bears a constitutional obligation to establish a National Tribunals Commission in accordance with the principles and framework articulated therein. The creation of such a commission is an essential structural safeguard designed to ensure independence, transparency, and uniformity in the appointment, administration, and functioning of tribunals across the country. The repeated judicial insistence on this body reflects the Court’s recognition that piecemeal reforms cannot remedy the systemic deficiencies that have persisted for decades. 153. We grant the Union of India a period of four months from the date of this judgment to establish a National Tribunals Commission. The commission so constituted must adhere to the principles articulated by this Court, particularly concerning independence from executive control, professional expertise, transparent processes, and oversight mechanisms that reinforce public confidence in the system." MBA refers to Madras Bar Association. 

 

Supreme Court struck down the provisions of the Tribunals Reforms Act, 2021 because it re-enacted provisions previously struck down provisions, overriding binding judicial precedents in the cases of Madras Bar Association vs. Union of India (2021) and Madras Bar Association. vs. Union of India (2022). The provision of Labour Tribunals is likely to meet the same fate. 

In the backdrop of such acts of commissions and commissions and the worker's historic unrest, the joint statement dated April 28, 2026 issued by The Platform of Central Trade Unions (CTUs) and Samyukta Kisan Morcha (SKM) assumes huge significance. It reads: "The joint meeting of CTUs and SKM held on 24th April took note that minimum wages have not been revised in many states for the last 10 years despite the price rise in basic essentials. In most industrial hubs, contract, casual, or fixed-term workers are migrant workers living in precarious conditions devoid of basic amenities. They are not allowed to form unions and are victimised if they attempt unionisation." 

The CTU-SKM statement noted that "the series of spontaneous worker agitations were not isolated incidents. Just two months ago, thousands of contract workers in the Baruni refinery areas in Bihar resorted to agitation. Most of them were kept on contract, lived with the threat of losing their jobs if they raised their voices, yet they took to the streets demanding justice: an eight-hour work day, double overtime wages for extra hours worked, increased minimum wages, workplace safety and dignity, leave equivalent to regular workers, social security, job cards, and pay slips. Thereafter thousands of workers agitated in Panipat, again on the same demands which also included a raise in the city's grade for wage calculations. Then followed similar protests in Surat, where several thousand workers took to the streets for agitation on similar demands; most of these workers were migrants from other states. The workers came out at their respective factory gates in Manesar, Haryana, demanding a raised minimum wage as per the recommendation of the state minimum wage board constituted after a ten-year gap. Other issues included working hours, overtime, workplace safety, no ill-treatment of workers, and basic amenities. Despite the trade  union joint council meeting with labour department officials in Manesar to support the workers’  demands for early resolution, the police lathi-charged the workers and arrested hundreds, imposing serious charges. It is only after massive struggles did the Haryana Government say they will implement what it has notified. The notification is for a lower amount than there commendation of the state Minimum Wage Board. Workers from several factories in Noida followed suit, demanding a raise in minimum wage, 8 hours of work, double overtime wages for extra work, social security, basic amenities,leave, and no harassment. It should be noted that no revision of minimum wage  took place in UP since 2012 despite the immense rise in the cost of basic essential goods and services.The workers’ protest regarding life and death questions for their families was met with a brute police force, several hundreds were arrested, beaten and injured. Families were left wondering where to find them. Serious charges were imposed on them and bail was denied....Soon after, workers in Bhiwadi and Neemrana also protested at factory gates on similar demands, they were attacked by hooligans in addition to the police." 

The statement noted: "This trend is growing and catching up in other cities as well. It reflects the reality that if the labour codes are implemented to contain and cripple the unions, the Government will be responsible for the threat to industrial peace. Meanwhile, an exodus of workers toward their hometowns is being witnessed as they find ithard to live on low wages amid the sudden increase in fuel prices due to West-Asian developments and the Central Government total failure to check and prevent black marketingof cooking gas and inflation of essential commodities. CTUs and SKM deplore and reject the narrative spread by the Minister of labour in UP and the Police Administration....The Noida Police putting activists and trade union leaders under “House Arrest” is illegalsince there is no explicit provision for “House Arrest” in the Bharatiya Nyaya Sanhita (BNS)or the Bhartiya Nagarik Suraksha Sanhita (BSS).  All political parties must oppose and rally against the illegal House Arrests, which amount to the murder of democracy and suppression of the constitutional right to protest. The central trade unions have repeatedly stated that labour law violations are common at workplaces, inspections do not take place, and apart from overwork and non-payment,workplace safety is compromised, resulting in the loss of precious lives and many workers losing their work capacities."

It pointed out: "Union formation is not allowed and those who attempt to unionize lose their jobs, in effect, there is a total denial of labour rights, absence of social dialogue and collective bargaining. Instead of addressing these issues raised on several occasions the central government introduced four draconian labour codes to legalise violations, finishing 15 central labour laws and repealing another 29 central laws to convert them into Four labour codes. These codes are to push the labour force to slavery, increased working hours, literally ending right tostrike, fix term employment as a norm, no job security, with threshold increased throwing out the protected workers also out of the labour law protections, unionisation a difficult process and de-registration and de-recognition very easy, end to inspection and proposals of Facilitators to facilitate the employers/businesses etc. 

The joint statement reads: "The joint meeting observed that what the nation witnessed in these three months is the desperation of workers, which leads to unrest when the industry does not allow unions andno dialogue occurs, disturbing industrial peace. The CTUs reiterate the demand to scrap the four labour codes and urge the Government to urgently call the Indian Labour Conference(ILC), India's top-level tripartite body, which last met in 2015 in New Delhi. The joint meeting asserted that workers will never allow to abolish the Constitutional rights for unionisation and collective bargaining."

Across the world, it is evident that if autocratic lawmaking and law enforcement is deemed natural. Unjust laws are no laws. They are not natural. Notorious laws and judgements do not survive for long because they are unnatural. 

Aesthetics of Jurisprudence, its relation with Satyam, Shivam, Sundaram and Justice

Advocate for Justice organised a discussion on "Aesthetics of Jurisprudence" (न्याय शास्त्र का सौंदर्यबोध) at Patna High Court on May 14, 2026 in the evening hours. The discussion was chaired by senior advocate Yogesh Chandra Verma, member, Bihar State Bar Council and president, Advocates Association. Speaking on the occasion, he said, justice refers to a keen sense of fairness and truthfulness. But courts are unable to reach truth. What is approved by the majority may appear to be justice but unless everyone is taken along, the quest for real truth and justice will remain unfulfilled. The discussion was  moderated by Advocate-poet Ranjit Verma who has authored books like पीछे न छोड़ते निशान (2002), बलात्कार और क़ानून (2007), एक चुप के साथ (2010), लकीर कहीं एक खिंचनी होगी आपको (2015), यह रक्त से भरा समय है (2022), मुझे तुम वहाँ ढूँढो (2025) and has edited प्रतिरोध का पक्ष (2016) and  प्रतिरोध में कविता (2021). In his opening remarks, he observed, "sense of justice is linked with class consciousness. Its meaning is dependent on one's class location." He invited Dr. Gopal Krishna, an advocate and researcher of law, philosophy and mass communication to introduce the subject of the discussion. 

Introducing the subject, Dr. Krishna, recalled the significance of Satyam Shivam Sundaram. The excerpts from his presentation are reproduced: Satyam refers to what "is". Shivam refers to all that is good. Sundaram refers to flowering of pure consciousness. He referred to the judgement dated October 26, 1979 by Justice V.R. Krishna Iyer of the Supreme Court of India in Raj Kapoor & Ors. vs. State, wherein the Court observed:"Surely, the satwa of society must rise progressively if mankind is to move towards its timeless destiny and this can be guaranteed only if the ultimate value-vision is rooted in the unchanging basics, Truth-Goodness-Beauty, Satyam, Shivam, Sundaram." Satyam, Shivam, Sundaram was also one of the movies by Raj Kapoor, the legendry filmmaker. The conception of beauty in Natya Shastra, the fifth Veda by Bharat Muni underlines that beauty is aligned with rasa, essence and bhava, feeling. The observation of the Supreme Court in Jasraj Inder Singh vs. Hemraj Multanchand (1977), wherein, the Court said,"Truth like song, is whole and half-truth can be noise. Justice is truth, is beauty and the strategy of healing injustice is discovery of the whole truth" makes it amply clear that there is a relationship between sense of beauty, goodness and justice.     

The ugly judgements of US and Indian Supreme Courts illustrate poverty of sense of beauty. The infamous decision of the US Supreme Court in Dred Scott vs. John Sandford (1857), wherein, the U.S. Supreme Court stated that enslaved people were not citizens of the USA. Therefore, they could not expect any protection from the federal government or the courts. It also stated that US legislature had no authority to ban slavery from a federal territory. The notorious decisions of U.S. Supreme Court in Buck vs. Bell (1927), in which, it had upheld the constitutionality of forced sterilization laws for individuals deemed "genetically unfit". The 8-1 decision endorsed the eugenics movement in the USA. These decisions have been cited in the Indian Supreme Court's judgement in Justice K.S. Puttaswamy vs Union of India (2017), the Aadhaar Number Online Database related case with strong disapproval.  

Referring to the ugliest decision of the Supreme Court of India in ADM Jabalpur vs. Shivkant Shukla AIR 1976 SC 1207, Dr. Krishna pointed out that the 9-Judge Constitution Bench judgment of the Supreme Court in Justice K.S. Puttaswamy vs Union of India (2017) overruled its 1976 judgment, wherein, the Court observed:"In IR Coelho v State of Tamil Nadu, this Court took the view that ADM Jabalpur has been impliedly overruled by various subsequent decisions. We now expressly do so.” In his concurring opinion as part of the 90Judge Bench, Justice Sanjay Kishan Kaul observed: “I fully agree with the view expressly overruling the ADM Jabalpur case which was an aberration in the constitutional jurisprudence of our country and the desirability of burying the majority opinion ten fathoms deep, with no chance of resurrection.” In the ADM Jabalpur case, the Court had grappled with the question as to whether individuals who had been preventively detained by the State had the right to approach the Courts in a habeas corpus petition. The Court held that when there was Presidential proclamation of a State of Emergency, it suspended the right of all individuals to move the Courts for legal remedy, if case they were detained. The Supreme Court by majority held that the Presidential Proclamation had validly suspended the remedy of habeas corpus under the Constitution. The Presidential Proclamation acted as a complete bar to exercising the fundamental right to life and liberty. A detained person was denied the right to approach the Courts on the ground that his detention was illegal or unconstitutional. The utter lack of sense of beauty and justice among the authors of the judgement, make it a text book lesson on how how not to write judgements. 

Diotima, the lady teacher of Socrates had taught beauty and justice to him. Her lesson was that there cannot be any sense of justice without a sense of beauty. Our first introduction to good and bad and right and wrong is not based on statutes and ethics. It is based on sense of ephemeral and transcendental beauty imparted to us by mothers, fathers, brothers, sisters, relatives of myriad shades and friends of all hues.  

In Om Prakash vs. Union of India 2025 INSC 43, Justice M.M. Sundresh observed:"Truth is the foundation of justice." He added:"Justice is nothing but a manifestation of truth." It has been held that "The Court is a search engine of truth, with procedural and substantive laws as its tools."

When advocates and judges read the silence of the constitution and statutes, they hear what has not been said. They read what is not written. Such hearing and reading is possible only when there is a sense of truth, goodness and justice. 

Speaking on the presentation, advocate Jnana Chandra Bhardwaj said, nature of truth changes with the passage of time. Jaishankar Singh, General secretary, Advocates Association underlined the significance of inner beauty which gets missed by those obsessed with external beauty. Advocate Rahman said, "when truthful person speaks, one can get a glimpse of truth. Institutions like judiciary too can become beautiful. There is no beauty in unilateralism." Snehlata, a student of law dwelt on the connection between beauty, truth and justice. She raised the question about superficiality of judgements. Advocate Mumtaz Uddin emphasized that truth is universal and unchanging. Justice can be beautiful.

 

Responding to these observations, Dr. Krishna expressed his agreement with most of the insights shared by the discussants. He asserted that truth is eternal. Non-reasoned orders and judgements are ugly. Their authors seems to be devoid of sense of truth, justice and beauty. Referring to ugly laws and decisions, he cited a decision by Justice I.A. Ansari, who later became the 39th chief justice of Patna High Court, Dr. Krishna recalled the issue of Supreme Court's unreasoned stay order on the 89-page long reasoned judgement dated November 6, 2013 by Justice Ansari as part of Gauhati High Court's Division Bench comprising of Justice Dr. (Mrs.) Indira  Shah in Navendra Kumar vs. Union of India & Anr. (2013). Justice Ansari has held that the resolution of the Ministry of Home Affairs, which constituted the Central Bureau of Investigation (CBI), is non est in law. The High Court also held that the resolution was not traceable to Section 2 of Delhi Special Police Establishment (DPSE) Act, 1946, which empowers the union government to constitute a special police force for a union territory. In any case the Parliament did not have any legislative competence to constitute a police force, traceable to Entry 8 and Entry 80 of List I of the Constitution of India. The creation of CBI through a notification cannot be constitutionally justified. But the Supreme Court stayed the operation of the judgment. It has not been able hear the case since then.  

 

Dr. Krishna observed that as a consequence such indulgence and deference towards the Union Executive, the Union of India has enacted several laws which empowers it to investigate and prosecute for penal offences although the Constitution of India does not permit the Union to create institutions to carry out investigation outside the territorial limit of union territory. Law and order is a State subject, not a subject of the Union under the Seventh Schedule of the Constitution. It is the primary duty of the State Governments to prevent, detect, register and investigate crime and prosecute the criminals. The sweeping investigative powers under the Code of Criminal Procedure (CrPC) or BNSS can only be granted by a formal legislative statute, making the executive resolution regarding creation of CBI ultra vires. 

 

Because the unconstitutionality of CBI remained uncontested till 2013, National Security Ordinance was promulgated on September 23, 1980 and the National Security Act (NSA) became a permanent part of law from December 27, 1980 and the National Investigation Agency (NIA) Act, 2008 was enacted to set up the NIA as the nation’s first apex agency to investigate and prosecute offences related to terrorism. The constitutionality of the NSA was challenged in A.K. Roy vs. Union of India (1981) on the ground that it is a draconian law that places arbitrary and excessive powers in the hands of the executive. The petitioner thus contended that the Act was violative of Articles 14, 19, and 21 of the Constitution without success. The NIA Act was amended in 2019 amendment to expand the ambit of the law to offences such as human trafficking, manufacture and sale of prohibited arms, cyber-terrorism and others. Besides these the Unlawful Activities Prevention Act, 1967 too was amended in 2019 to bestow power to NIA officers to conduct raids and seize properties of suspected terrorists although several of its provisions contravene many articles of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The primary aim of the NIA was to assist State police in terror cases and maintain law and order. It is clear that NIA has taken charge of the working of State police for certain crimes in breach of the constitutional provision. Section 3(1) of the NIA Act establishes a police force to investigate offences. Section 6 gives it suo moto power to take up cases without any prior consent of the State in any part of India. NIA has been empowered to investigate offences which come under Scheduled offences of the Act. Section 6(6) directs that if any direction is given under the sections mentioned above, then state police shall not proceed with the investigation and transmit the case to NIA. Section 7 and 9 of the Act gives NIA the discretion to decide when to take assistance from state police and when to transfer the case to the State police. These provisions encroach upon the constitutional rights of the State. It is not surprising that the Chhattisgarh government filed a petition in the Supreme Court contending that NIA is constitutionally invalid and its enactment goes beyond the legislative competence of the Parliament. On April 21, 2026, Supreme Court issued notice after admitting a PIL challenging the NIA law as arbitrary, lacking in legislative competence and an encroachment on state power. 

 

Can several wrongs transform wrongs like CBI, NSA and NIA into a right? Will a day come when the Court will have the philosophical and jurisprudential will and courage to pass a reasoned order, either to vacate it's stay order or to uphold the reasoned judgement by Justice Ansari? The fact is that the stay order is as ugly as the Court's judgment in ADM Jabalpur vs. Shivkant Shukla (1976), Dred Scott vs. John Sandford (1857),  and Buck vs. Bell (1927).

Advocates Neeraj Kumar, Dr. Raja Ram Rai, Ugresh Kumar, Bhubneshwar Mahto, Amit Maharaj, Rajeev Ranjan, Tanay Bhaskar, Arvind Singh, Najmal Hoda and Rahamatullah and several other advocates graced the occasion. Advocate-poet Ranjit Verma concluded the discussion after sharing details about Advocate for Justice and the future initiatives of the forum.       

    

   

 

Isn't judgement by 3-Judge Bench on Article 136 per incuriam because it undermines judgement by Supreme Court's 5-Judge Constitution Bench?

In V. Vasanthakumar vs. H.C. Bhatia, [Writ Petition (Civil) No. 36 of 2016], Supreme Court's 3-Judge Bench of Chief Justice T. S Thakur, R. Bhanumathi and Uday Umesh Lalit delivered a 25-page long judgement dated July 13, 2016, wherein, it expressed its pious wish to regain its true status as a Constitutional Court in an apparent breach of judicial discipline disregarding the judgement dated January 11, 2026 in Mathai @ Joby vs. George & Anr., (2016) and referred the matter to a Constitutional Bench "for an authoritative pronouncement. The Registry shall, accordingly, place the record before the Hon’ble Chief Justice for constituting an appropriate bench" upon hearing the writ petition which was filed on January 12, 2016, the very next day of the judgement by the Constitution Bench. Isn't judgement by 3-Judge Bench of Supreme Court per incuriam  for undermining a judgement by 5-Judge Constitution Bench? It is apparent that the Court's registry has aptly decided to comply with the judgement of the Constitution Bench.   

The 3-Judge Bench referred to the judgement of the 5-Judge Constitution Bench in Mathai @ Joby v. George & Anr., which had relied upon the decisions of the Supreme Court in N. Suriyakala vs. A. Mohandoss (2007) 9 SCC 196, Bengal Chemical & Pharmaceutical Works Ltd. v. Employees AIR 1959 SC 633, Kunhayammed v. State of Kerala (2000) 6 SCC 359, State of Bombay v. Rusy Mistry AIR 1960 SC 391, Municipal Board, Pratabgarh v. Mahendra Singh Chawla (1982) 3 SCC 331, Ram Saran Das and Bros. v. CTO AIR 1962 SC 1326, Pritam Singh v. State AIR 1950 SC 169, Tirupati Balaji Developers (P) Ltd. v. State of Bihar (2004) 5 SCC 1, Jamshed Hormusji Wadia v. Port of Mumbai (2004) 3 SCC 214, Narpat Singh v. Jaipur Development Authority (2002) 4 SCC 666, Ashok Nagar Welfare Assn. v. R.K. Sharma (2002) 1 SCC 749, which underlined that the exercise of jurisdiction under Article 136 of the Constitution by the Supreme Court was discretionary and that the provision did not confer a vested right of appeal to a party in litigation. The Constitution Bench, however, declined to look into the question of interpretation of Article 136 of the Constitution or to enumerate the circumstances in which the extraordinary power vested in this Court under the said provision could or ought to be exercised. Relying upon the decisions of the Supreme Court in Pritam Singh vs. The
State 1950 SCR 453 at page 457 Penu Balakrishna Iyer & Ors. vs. Ariya M. Ramaswami Iyer & Ors. (1964) 7 SCR 49 at Page 53 and Union Carbide Corporation & Ors. vs. Union of India & Ors. (1991) 4 SCC 584, the Constitution Bench held that power under Article 136 had to be exercised with circumspection but considered it unnecessary to limit the use thereof forever by a process of interpretation. The Court was of the view that the question referred to the Constitution Bench stood answered by the three decisions mentioned above.

Admittedly, it was in this backdrop that the petitioner, a practicing Advocate filed the petition on the very next day of the judgement by the Constitution Bench in which he has sought a mandamus directing the respondents to consider his representation and to take steps for implementation of the suggestion of the Constitution Bench of the Supreme Court in Bihar Legal Support Society vs. Chief Justice and Others (1986) 4 SCC 767, by establishing a National/Regional Courts of Appeal. The writ petition came up for preliminary hearing before on February 26, 2016, the 3-Judge Bench issued notice and requested Mukul Rohatgi, Attorney General for India to assist it. It also requested K.K. Venugopal and Salman Khurshid, senior counsels to assist the Court as Amicus Curiae.

Prior to this in Mathai Alias Joby vs. George (2016), Supreme Court's Constitution Bench of Justices Anil R. Dave, Kurian Joseph, Shiva Kirti Singh, Adarsh Kumar Goel, and Rohinton Fali Nariman delivered a 7-page long judgement dated January 11, 2016, wherein, it concluded: "Upon perusal of the law laid down by this Court in the aforesaid judgments, in our opinion, no effort should be made to restrict the powers of this Court under Article 136 because while exercising its powers under Article 136 of the Constitution of India, this Court can, after considering facts of the case to be decided, very well use its discretion. In the interest of justice, in our view, it would be better to use the said power with circumspection, rather than to limit the power forever. In the circumstances, we do not see any reason to answer the issue which has already been answered in the aforesaid judgments. We are of the opinion that no further elaboration is required on the issue involved in this case. The Special Leave Petition is dismissed as infructuous." It referred to its decisions at page 457 in Pritam Singh vs. The State (1950) SCR 453, at page 53 in Penu Balakrishna Iyer & Ors. Vs. Ariya M. Ramaswami Iyer & Ors.(1964) 7 SCR 49 and at para 58 in Union Carbide Corporation & Ors. vs. Union of India & Ors. 1991 (4) SCC 584. The judgement was authored by Justice Dave.

Earlier in Mathai Alias Joby vs. George 2010 SCC 4 358, Supreme Court's Division Bench of Justices Markandey Katju and R.M. Lodha had delivered a 20-page long judgement dated March 19, 2010, wherein, it had issued notice to the Supreme Court Bar Association, Bar Council of India and the Supreme Court-Advocates-on-Record Association besides the respondents. The order reads:"Since the matter involved interpretation of Article 136 of the  Constitution, we feel that it should be decided by a Constitution Bench in view of Article 145(3) of the Constitution. Let the papers of this case be laid before Hon’ble the Chief Justice of India for constitution of an appropriate Bench, to decide which kinds of cases should be entertained under Article 136, and/or for laying down some broad guidelines in this connection." The Court was hearing a special leave petition has been filed against the judgment and order dated November 9, 2009 of the High Court of Kerala Ernakulam in W.P.(C) No. 31726/2009.  

The petitioner was one of the defendants in a suit in which he disputed the genuineness of a Will dated January 13, 2006. The Will in question was sent for expert opinion to the Forensic Science Laboratory, Thiruvananthapurm. The Forensic Science Laboratory submitted its report to the Trial Court. Not satisfied with the report the Petitioner wanted another opinion from another expert. The prayer of the petitioner was rejected by the Trial Court and the writ petition filed against the order of the Trial Court was dismissed by the impugned order. Against the High Court’s order, the SLP was filed. 

The Division Bench's order reads:" 4. We are prima facie of the opinion that such special leave petitions should not be entertained by this Court. Now-a-days all kinds of special leave petitions are being filed in this Court against every kind of order. For instance, if in a suit the trial court allows an amendment application, the matter is often contested right up to this Court. Similarly, if the delay in filing an application or appeal is condoned by the Trial Court or the appellate court, the matter is fought upto this Court. Consequently, the arrears in this Court are mounting and mounting and this Court has been converted practically into an ordinary appellate Court which, in our opinion, was never the intention of Article 136 of the Constitution. In our opinion, now the time has come when it should be decided by a Constitution Bench of this Court as to in what kind of cases special leave petitions should be entertained under Article 136 of the Constitution. 5. Article 136, no doubt, states that 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. However, it is not mentioned in Article 136 of the Constitution as to in what kind of cases the said discretion should be exercised. Hence, some broad guidelines need to be laid down now by a Constitution bench of this Court otherwise this Court will be flooded (and in fact is being flooded) with all kind of special leave petitions even frivolous ones and the arrears in this Court will keep mounting and a time will come when the functioning of this Court will become impossible. It may be mentioned that Article 136, like Article 226, is a discretionary remedy, and this Court is not bound to interfere even if there is an error of law or fact in the impugned order." 

In N. Suriyakala vs. A. Mohandoss and Ors, (2007) 9 SCC 196, the Supreme Court observed: "In this connection we may clarify the scope of Article 136. Article 136 of the Constitution is not a regular forum of appeal at all. It is a residual provision which enables the Supreme Court to interfere with the judgment or order of any court or tribunal in India in its discretion."

Article 136(1) of the Constitution states: "Article 136(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." 

Division Bench points out that "The use of the words "in its discretion" in Article 136 clearly indicates that Article 136 does not confer a right of appeal upon any party but merely vests a discretion in the Supreme Court to interfere in exceptional cases vide
M/s. Bengal Chemical & Pharmaceutical Works Ltd. vs. Their Employees AIR 1959 SC 633(635), Kunhayammed & Ors. Vs. State of Kerala & Anr. 2000(6) SCC 359 and State of Bombay Vs. Rusy Mistry AIR 1960 SC 391(395). In Municipal Board, Pratabgarh & Anr. Vs. Mahendra Singh Chawla & Ors. 1982(3) SCC 331 and in Chandra Singh Vs. State of Rajasthan AIR 2003 SC 2889 (vide para 43 & 45), this Court observed that under Article 136 it was not bound to set aside an order even if it
was not in conformity with law, since the power under Article 136 was discretionary. Though the discretionary power vested in the Supreme Court under Article 136 is apparently not subject to any limitation, the Court has itself imposed certain limitations
upon its own powers vide Ram Saran Das and Bros. Vs. Commercial Tax Officer, Calcutta & Ors. AIR 1962 SC 1326(1328) and Kunhayammed Vs. State of Kerala 2000(6) SCC 359 (para 13)." 

The Supreme Court has laid down that this power has to be exercised sparingly and in exceptional cases only. Thus, in Pritam Singh vs. The State AIR 1950 SC 169, this Court observed (vide para 9): "On a careful examination of Art.136 along with the preceding article, it seems clear that the wide discretionary power with which this Court is invested under is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this article."

In Tirupati Balaji Developers Pvt. Ltd. vs. State of Bihar AIR 2004 SC 2351, the Supreme Court observed: "It is an extraordinary jurisdiction vested by the Constitution in the Supreme Court with implicit trust and faith, and extraordinary care and caution has to be observed in the exercise of this jurisdiction. Article 136 does not confer a right of appeal on a party but vests a vast discretion in the Supreme Court meant to be exercised on the considerations of justice, call of duty and eradicating injustice." 

In Jamshed Hormusji Wadia vs. Board of Trustees, Port of Mumbai AIR 2004 SC 1815 (para 33), the Supreme Court observed:"The discretionary power of the Supreme Court is plenary in the sense that there are no words in Article 136 itself qualifying that power. The very conferment of the discretionary power defies any attempt at exhaustive definition of such power. The power is permitted to be invoked not in a routine fashion but in very exceptional circumstances as when a question of law of general public importance arises or a decision sought to be impugned before the Supreme Court shocks the conscience. This overriding and exceptional power has been vested in the Supreme Court to be exercised sparingly and only in furtherance of the cause of justice in the Supreme Court in exceptional cases only when special circumstances are shown to exist." It also observed: "It is well settled that Article 136 of the Constitution does not confer a right to appeal on any party; it confers a discretionary power on the Supreme Court to interfere in suitable cases. Article 136 cannot be read as conferring a right on anyone to prefer an appeal to this Court; it only confers a right on a party to file an application seeking leave to appeal and a discretion on the Court to grant or not to grant such leave in its wisdom. When no law confers a statutory right to appeal on a party, Article 136 cannot be called in aid to spell out such a right. The Supreme Court would not under Article 136 constitute itself into a tribunal or court just settling disputes and reduce itself to a mere court of error. The power under Article 136 is an extraordinary power to be exercised in rare and exceptional cases and on well-known principles." 

In Narpat Singh vs. Jaipur Development Authority (2002) 4 SCC 666, this Court observed: "The exercise of jurisdiction conferred by Art.136 of the Constitution on the Supreme Court is discretionary. It does not confer a right to appeal on a party to litigation; it only confers a discretionary power of widest amplitude on the Supreme Court to be exercised for satisfying the demands of justice. On one hand, it is an exceptional power to be exercised sparingly, with caution and care and to remedy extraordinary situations or situations occasioning gross failure of justice; on the other hand, it is an overriding power whereunder the Court may generously step in to impart justice and remedy injustice."

In Ashok Nagar Welfare Association vs. R.K. Sharma AIR 2002 SC 335, the Supreme Court observed that even in cases where special leave is granted, the discretionary power vested in the Court continues to remain with the Court even at the stage when the appeal comes up for hearing." 

The Division Bench observed: "14. Now-a-days it has become a practice of filing SLPs against all kinds of orders of the High Court or other authorities without realizing the scope of Article 136. Hence we feel it incumbent on us to reiterate that Article 136 was never meant to be an ordinary forum of appeal at all like Section 96 or even Section 100 CPC. Under the constitutional scheme, ordinarily the last court in the country in ordinary cases was meant to be the High Court. The Supreme Court as the Apex Court in the country was meant to deal with important issues like constitutional questions, questions of law of general importance or where grave injustice had been done. If the Supreme Court entertains all and sundry kinds of cases it will soon be flooded with a huge amount of backlog and will not be able to deal with important questions relating to the Constitution or the law or where grave injustice has been done, for which it was really meant under the Constitutional Scheme. After all, the Supreme Court has limited time at its disposal and it cannot be expected to hear every kind of dispute." 

By now it is crystal clear that Supreme Court has gradually converted itself into a mere Court of Appeal which has sought to correct every error which it finds in the judgments of the High Courts of the country as well as the vast number of tribunals. The Court has strayed from its original character as a Constitutional Court and the Apex Court of the country. If the Apex Court seeks to deal with all kinds of cases, it necessarily has to accumulate vast arrears over a period of time which it will be impossible to clear in any foreseeable future. According to him, this is a self-inflicted injury, which is the cause of the malaise which has gradually eroded the confidence of the litigants in the Apex Court of the country, mainly because of its failure to hear and dispose of cases within a reasonable period of time. It is a great tragedy to find that cases which have been listed for hearing years back are yet to be heard. 

Delivering R.K. Jain Memorial Lecture on January 30, 2010, K.K. Venugopal,a noted Senior Advocate observed: "We have, however, to sympathize with the judges. They are struggling with an unbearable burden. The judges spend late nights trying to read briefs for a Monday or a Friday. When each of the 13 Divisions or Benches have to dispose off about 60 cases in a day, the functioning of the Supreme Court of India is a far cry from what should be desiderata for disposal of cases in a calm and detached atmosphere. The Judges rarely have the leisure to ponder over the arguments addressed to the court and finally to deliver a path-breaking, outstanding and classic judgment. All this is impossible of attainment to a Court oppressed by the burden of a huge backlog of cases. The constant pressure by counsel and the clients for an early date of hearing and a need to adjourn final hearings which are listed, perforce, on a miscellaneous day i.e. Monday or a Friday, where the Court finds that it has no time to deal with those cases, not only puts a strain on the Court, but also a huge financial burden on the litigant. I wonder what a lawyer practising in 1950 would feel if he were today to enter the Supreme Court premises on a Monday or a Friday. He would be appalled at the huge crowd of lawyers and clients thronging the corridors, where one finds it extremely difficult to push one’s way through the crowd to reach the Court hall. When he enters the Court hall he finds an equally heavy crowd of lawyers blocking his way. I do not think that any of the senior counsel practicing in the Supreme Court, during the first 3-4 decades of the existence of the Court, would be able to relate to the manner in which we as counsel argue cases today. In matters involving very heavy stakes, 4-5 Senior Advocates should be briefed on either side, all of whom would be standing up at the same time and addressing the court, sometimes at the highest pitch possible. All these are aberrations in the functioning
of an Apex Court of any country."

He had pointed out that in the year 1997 there were only 19,000 pending cases in the Supreme Court but now, there were over 55,000 pending cases in 2010. He had predicted that in a few years time the pendency will cross one lakh cases. In 2009 almost 70,000 cases were filed in the Court of which an overwhelming number were Special Leave Petitions under Article 136. At present all these cases have to be heard orally, whereas the U.S. Supreme Court hears only about 100 to 120 cases every year and the Canadian Supreme Court hears only 60 cases per year.

In Bihar Legal Support Society vs. Chief of Justice of India and Anr. (1986) 4 SCC 767 (vide para 3), a Constitution Bench of the Supreme Court observed: "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 for the purpose of laying down the law for the entire country ...............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, 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 accumulate. We must realize that in the vast majority of cases the High Courts must become final even if they are wrong".

Prof. Paul Freund, the constitutional law professor Harvard Law School referred to the opinion of Louis Dembitz Brandei, the celebrated Judge of the U.S. Supreme Court during 1916-1939 in the following words: "... he was a firm believer in limiting the jurisdiction of the Supreme Court on every front as he would not be seduced by the Quixotic temptation to right every fancied wrong which was paraded before him. ...... Husbanding his time and energies as if the next day were to be his last, he steeled himself, like a scientist in the service of man, against the enervating distraction of the countless tragedies he was not meant to relieve. His concern for jurisdictional and procedural limits reflected, on the technical level, an essentially stoic philosophy. For like Epictetus, he recognized ’the impropriety of being emotionally affected by what is not under one’s control’. The only way found practicable or acceptable in this country (U.S.A.) for keeping the volume of cases within the capacity of a court of last resort is to allow the intermediate courts of appeal finally to settle all cases that are of consequence only to parties. This reserves to the court of last resort only questions on which lower courts are in conflict or those of general importance to the law."

Justice K.K. Mathew, an eminent Judge of the Supreme Court, in an article published in (1982) 3 SCC (Jour) 1, referred to the opinion of Justice Felix Frankfurter, the judge  of the Supreme Court of the United States (1939-1962), as follows: "The function of the Supreme Court, according to Justice Frankfurter, was to expound and stabilize principles of law, to pass upon constitutional and other important questions of law for the public benefit and to preserve uniformity of decision among the intermediate courts of appeal. The time and attention and the energy of the court should be devoted to matters of large public concern and they should not be consumed by matters of less concern, without special general interest, merely because the litigant wants to have the court of last resort pass upon his right. The function of the Supreme Court was conceived to be, not to remedying of a particular litigant’s wrong, but the consideration of cases whose decision involved principles, the
application of which were of wide public or governmental interest and which ought to be authoritatively declared by the final court. Without adequate study, reflection and discussion on the part of judges, there could not be that fruitful interchange of minds which was indispensable to thoughtful, unhurried decision and its formulation in learned and impressive opinions and therefore Justice Frankfurter considered it imperative that the docket of the court be kept down so that its volume did not preclude wise adjudication. He was of the view that any case which did not rise to the significance of inescapability in meeting the responsibilities vested in the Supreme Court had to be rigorously excluded from consideration". 

Justice Mathew advised that the Supreme Court, to remain effective, must continue to decide only those cases which present questions whose resolution will have immediate importance far beyond the particular facts and parties involved. He wrote: "To say that no litigant should be turned out of the Supreme Court so long as he has a grievance may be good populistic propaganda but the consequence of accepting such a demand would surely defeat the great purpose for which the Court was established under our constitutional system. It is high time we recognize the need for the Supreme Court to entertain under Article 136 only those cases which measure up to the significance of the national or public importance. The effort, then, must therefore be to voluntarily cut the coat of jurisdiction according to the cloth of importance of the question and not to expand the same with a view to satisfy every litigant who has the means to pursue his cause."

The Division Bench took note of Venugopal's suggestion about the categories of cases which alone should be entertained under Article 136 of the Constitution, (i) All matters involving substantial questions of law relating to the interpretation of the Constitution of India; (ii) All matters of national or public importance; (iii) Validity of laws, Central and State; (iv) After Kesavananda Bharati, (1973) 4 SCC 217, the judicial review of Constitutional Amendments; and (v) To settle differences of opinion of important issues of law between High Courts. It observed: "22. We are of the opinion that two additional categories of cases can be added to the above list, namely (i) where the Court is satisfied that there has been a grave miscarriage of justice and (ii) where a fundamental right of a person has prima facie been violated. However, it is for the Constitution Bench to which we are referring this matter to decide what are the kinds of cases in which discretion under Article 136 should be exercised. 23. In our opinion, the time has now come when an authoritative decision by a Constitution Bench should lay down some broad guidelines as to when the discretion under Article
136 of the Constitution should be exercised, i.e., in what kind of cases a petition under Article 136 should be entertained. If special leave petitions are entertained against all and sundry kinds of orders passed by any court or tribunal, then this Court after some time will collapse under its own burden. 24. It may be mentioned that in Pritam Singh Vs. The State AIR 1950 S.C. 169 a Constitution Bench of this Court observed (vide para 9) that "a more or less uniform standard should be adopted in granting Special Leave". Unfortunately, despite this observation no such uniform standard has been laid down by this Court, with the result that grant of Special Leave has become, as Mr. Setalvad pointed out in his book ‘ My Life’, a gamble. This is not a desirable state of affairs as there should be some uniformity in the approach of the different benches of this Court. Though Article 136 no doubt confers a discretion on the Court, judicial discretion, as Lord Mansfield stated in classic terms in the case of John Wilkes, (1770) 4 Burr 2528 "means sound discretion guided by law. It must be governed by rule, not humour: it must not be arbitrary, vague and fanciful"

Notably, 3- Judge Bench recollected that in Bihar Legal Support Society vs. Chief Justice and Others (1986) 4 SCC 767, a Constitution Bench of the Supreme Court while disposing of a Writ Petition in which the petitioner had prayed for adoption of a uniform approach and sensitivity in special leave petitions filed by the less fortunate of the litigants as was shown in the case of two big industrialists for whom the Court had held a late night sitting to consider their prayer for bail, held that special leave petitions filed by “small men” were entitled to the same consideration as is given to those filed by “big industrialists”. The Supreme Court declared that it had always regarded the poor and the disadvantaged to be entitled to preferential consideration over the rich and the affluent, the businessmen and the industrialists. That is because the weaker section of the Indian humanity had been deprived of justice for several years on account of their poverty, ignorance and illiteracy, and on account of their social and economic backwardness and resultant lack of capacity to assert their rights. The Court had rejected the suggestion that it was not giving to the “small men” the same treatment as it was giving to the “big industrialists”.