Does Parliament want to dilute Article 136?

Mr.K.V.Dhananjay has written to me raising this interesting issue:

Another Constitution Bench will now sit down to weigh what kind of cases should be heard by the Supreme Court in its appellate jurisdiction (that is, under Article 136 of the Constitution).

Parliament does not seem to quite agree with the above assessment. Lok Sabha has already passed 'The Commercial Division of High Courts Bill, 2009'. What this Bill aims to do is to create a special division within existing High Courts to fast track commercial disputes that are assessed beyond a 'specified value'.

How does the above Bill affect the work load of the Supreme Court?

Well, unfortunately, this new Bill provides a right of appeal to the Supreme Court.

Look this way - In the absence of the above Bill, an Order of a High Court is not appealable to the Supreme Court as a matter of right. The Constitution of India has vested in the Supreme Court, a power to entertain an appeal without vesting a corresponding right in the party to insist that his appeal be heard - this is what Article 136 does.

After this Bill becomes the law (after it is passed by the Rajya Sabha), the Supreme Court will be compulsorily burdened with appeals from Orders passed by High Courts under the new law. The Supreme Court cannot summarily reject appeals because a right of appeal has been furnished to the litigant.

Section 13 of this Bill says:

13. (1) In respect of suits of the category referred to in sub- section (1) of section 4,
section 5, section 11 and clause (i) of section 12, an appeal shall lie to the Supreme Court
against any decree passed by the Commercial Division.
(2) An appeal shall lie to the Supreme Court against the orders of the Commercial
Division referred to in clauses (a) to (w) of Rule 1 of Order XLIII of the Code of Civil
Procedure, 1908.
Explanation.— In this section, the word “decree” shall include all decrees which are
to be treated as decrees for purposes of Rule 4 of Order XXI, Rule 58 and Rule 103 of Order
XXI of the Code of Civil Procedure, 1908.

Article 136 of the Constitution

The judgment (20 pages) by the Markandey Katju-R.M.Lodha Bench making a reference to the Constitution Bench to determine the contours of Article 136 can be read at the Supreme Court's site. [Mathai @ Joby v. George, delivered on March 19, SLP(c)7105/2010]. The Bench relies heavily on the recent Mr.K.K.Venugopal's R.K.Jain Memorial Lecture. Paragraphs 21 and 22 of the judgment sum up the Bench's views on the matter. I am reproducing the two paragraphs here:

21.Mr.Venugopal has suggested the following 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.


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.