Bihar Legal Support Society Vs. The
Chief Justice of India & ANR [1986] INSC 244 (19 November 1986)
BHAGWATI, P.N. (CJ) 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 petitions 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 consideration of the bail application of two industrialists by this
Court at a late night sitting on 5th September, 1986, solicited the same
anxiety to permeate the attitude and inclination 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 refusing
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 industrialists. The Court has always regarded the
poor and the disadvantaged 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 opportunity 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 Constitution so
that it could interfere whenever it found that the law was not correctly
enunciated by tower courts or tribunals 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 exceptional 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 concerned,
it should concern itself only with entertaining cases involving questions of
constitutional law and public law. [298 H]
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
application 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, therefore, 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 regarded the poor and the
disadvantaged as entitled to preferential 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
illiteracy. 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 concentrated 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 oppression 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
welfare 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 immediately 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 refusal of bail or
anticipatory hail has an opportunity of mentioning 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 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 exceptional 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, 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 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, reconcile
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 country 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, involving questions of constitutional law and public
law. But until any such policy decision is endorsed by the Government, 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, blatent 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 injustice 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 anticipatory 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 petitions 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 (criminal) 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
refusing 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 petitioner for the poor and the disadvantaged in bringing this public
interest litigation.
P.S.S. Petition disposed of.
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