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N.K.Assumi (Advocate)     27 July 2010

SC Judgment of Constitutional Bech in 136 of the Constitutio

In a very thought provoking matters before the Supreme Court in Special Leave Petition (C) NO.7105 of 2010 decided on March 19th 2010 in the case of Mathai @ Joby.... Petitioner vs  George & Anr....Respondents: the two learned Judges of the Apex court namely Markandey Katju.J, and R.M.Lodha.J, while dealing with the interpretation of article 136 of the Constitution,  left the matter before the Constitutional Bench for its interpretation of Article 136 of the Constitution. I would like to know whether that matter has been taken up by the Constitutional Bench of the Supreme Court, if yes, I request that the said Observation of the Supreme Court be kindly post it to me. Thanking you all in advance with a very sincere request.


 24 Replies


Sh. Assumi ji,

It is already online I could have copy pasted it but the fiormatting would have spoiled reading it at length by your kindself. Suggest two options; send me your email ID I will post a PDF version OR click following link

Now click Date of Judgment from the left panel.

Just put 19 - 03 - 2010 in both places and then click Submit

It is the third Judgment.



So Respected Sh. Assumi ji

Afterwards any guidelines set out of this Judgment ?

I asked this because my SLP (Crl) matter comes under Art. 136 (5) COI :-?


Arup (UNEMPLOYED)     27 July 2010

what is the question before the court?

is it claimed as unconstitutional (the provisions of art 136) by petitioner?


I have challenged under Art. 136 (5) COI the DIVERGENT VIEWS OF DELHI, ANDHRA PRADESH, MADRAS, PUNJAB & HARYANA, RAJASTHAN AND MADHYA PRADESH HON’BLE HIGH COURTS to examine if  Domestic Violence Act, 2005 (PWDVA, 2005) can be applied Retrospectively OR Prospectively!

Based on divergent views of several Hon'ble High Courts;

The impugned Order dated 07 – 07 – 2010 has been passed by the Hon’ble Delhi High Court relying upon a coordinate bench decision of the High Court in ‘Smt. Savita Bhanot Vs. Lt. Col. V.D. Bhanot’,Crl. M.C. No. 3959 of 2009 (22-03-2010) whereby the Delhi High Court has held the Act to be retrospective in operation.

However, the High Court of Andhra Pradesh in the matter titled ‘U.U. Thimmanna & Ors. Vs. Smt. U.U. Sandhya & Ors.’ Crl. Petition No. 3714 of 2007 (02-08-2007) has held the Act to be prospective in operation.

The High Court of Madras in the matter titled ‘Dennison Paulraj & Ors. Vs. Maya Winola’ Crl. O.P. No. 7156 of 2007 (02-04-2008) held the Act to be retrospective in operation.

The High Court of Punjab & Haryana  in the matter titled ‘Smt. Gita Vs. Smt. Raj Bala’ M. Crl. Misc.  No. 47145 of 2007 (26-11-2008) has held the Act to be prospective in operation.

The High Court of Judicature of Rajasthan at Jaipur Bench, Jaipur in the matter titled ‘Smt. Hema @ Hemlata & Anr. Vs. Sh. Jitender & Anr.’ M. Cr. C.  No. 3874 of 2008 (07-01-2009) has held the Act to be prospective in operation.

The High Court of Madhya Pradesh in the matter titled ‘Shyamlal & Ors. Vs. Kantabai’ M. Cr. C.  No. 3874 of 2008  (29-04-2009) has held the act to be prospective in operation.


1 Like

Arup (UNEMPLOYED)     27 July 2010

simply great.

thanks to arun ji.


Thanks not accepted !

Help now a common man with collective wisdom of ld. members of LCI so to speak :-|||||



As Hon'ble Late SC Bose once said
"Give me blood, I will give you freedom"

So I copy the great soul and say "Give me wisdom and I will try my best to give you a common law" 

1 Like

Anil Agrawal (Retired)     27 July 2010

Retrospective also means backward looking. We are talking of 21st Century, 3rd largest economy, GDP 9%, blah, blah, blah, but continue to look backward.



Attached File : 9 9 art 136 judgment.pdf downloaded: 208 times
1 Like

Arup (UNEMPLOYED)     28 July 2010








Mathai @ Joby .... Petitioner


George & Anr. .... Respondents




1. Heard learned counsel for the petitioner.


2. This special leave petition has been filed against the

judgment and order dated 09.11.2009 of the High Court of Kerala Ernakulam in W.P.(C) No. 31726/2009. By the impugned order the writ petition filed by the petitioner herein has been disposed off.


3. The petitioner herein is one of the defendants in a suit in which he has disputed the genuineness of a Will dated 13.01.2006.

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 herein wanted another opinion from another expert. The said prayer of the petitioner was rejected by the Trial Court and the writ petition filed against the order of

the Trial Court has been dismissed by the impugned order. Against the High Court’s order the SLP has been filed.


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.


6. This Court in the case of N. Suriyakala Vs. A. Mohandoss and

Others (2007) 9 SCC 196 observed as under:

“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.”


7. 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."


8. 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.


9. 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) as under :-

"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."


10. In Tirupati Balaji Developers Pvt. Ltd. Vs. State of Bihar

AIR 2004 SC 2351, this Court observed about Article 136 as under:-

"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."


11 In Jamshed Hormusji Wadia Vs. Board of Trustees, Port of

Mumbai AIR 2004 SC 1815 (para 33), this Court observed as under :-

“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." In the same decision this Court also observed as under :-

"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."

12. In Narpat Singh Vs. Jaipur Development Authority (2002) 4 SCC 666, this Court observed as under :-

"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."


13. In Ashok Nagar Welfare Association Vs. R.K. Sharma AIR 2002 SC 335, this 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.


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.


15. Mr. K.K. Venugopal, Senior Advocate and a very respected

lawyer of this Court in his R.K. Jain Memorial Lecture delivered

on 30.01.2010 has pointed out that an alarming state of affairs

has developed in this Court because this 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.

Mr. Venugopal has further observed that this Court has strayed

from its original character as a Constitutional Court and the Apex

Court of the country. He further observed that 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. He has

further observed that it is a great tragedy to find that cases

which have been listed for hearing years back are yet to be heard.

He has further observed as under :

“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.”


16. Mr. Venugopal has pointed out that in the year 1997 there

were only 19,000 pending cases in this Court but now, there are

over 55,000 pending cases and in a few years time the pendency

will cross one lakh cases. In 2009 almost 70,000 cases were filed

in this 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.


17. In Bihar Legal Support Society Vs. Chief of Justice of India

and Anr. (1986) 4 SCC 767 (vide para 3) a Constitution Bench of

this Court observed as under :-

“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”.


18. In this connection Paul Freund has set out the opinion of Mr.

Justice Brandeis', the celebrated Judge of the U.S. Supreme Court

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.”


19. Justice K.K. Mathew, an eminent Judge of this Court, in an

article published in (1982) 3 SCC (Jour) 1, has referred to the

opinion of Mr. Justice Frankfurter, the renowned Judge of the U.S.

Supreme Court 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



20. According to Justice Mathew, 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. It is Justice

Mathew's opinion that -

“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.”


21. Mr. Venugopal has suggested the following categories of cases which alone should be entertained under Article 136 of the


(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.


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”

25. The Apex Court lays down the law for the whole country and it should have more time to deliberate upon the cases it hears before rendering judgment as Mr. Justice Frankfurter observed. However, sadly the position today is that it is under such pressure because of the immense volume of cases in the Court that Judges do not get sufficient time to deliberate over the cases, which they deserve, and this is bound to affect the quality of our judgments.


26. Let notice issue to the respondents. Issue notice also to

the Supreme Court Bar Association, Bar Council of India and the

Supreme Court-Advocates-on-Record Association.


27. Since the matter involves 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



28. The Constitution Bench may also consider appointing some

senior Advocates of this Court as Amicus Curiae to assist in the

matter so that it can be settled after considering the views of

all the concerned parties.







MARCH 19, 2010

N.K.Assumi (Advocate)     28 July 2010

Dear Dr.Arun Sir, posting those various High Courts observations as retrospective or prospective is simply great and a stupendous task, GREAT. And Dear Reddy Sir and Arup Sir, I am refering to that very paragraphs 27 and 28 of the said Judgment as to whether the Supreme Court Constitutional Bench has undertaken the task for laying down some broad  guidelines in 136. As pointed out by Sir Arun, it is high time for the Supreme Court to clinch the issue as to whether DVA should be interpreted with retrospective effect or Prospctive, thank you all for the responds.

1 Like

Pvt_RajKing (Private)     28 July 2010

I wish people would not copy paste the judgments in this forum as it makes the forum unusable. You can always post the link or upload the file instead.

Anyways, I read thru the judgment in full and agree that Art 136 is being abused but if the SC doesn't do a good job of defining the criteria then people with genuine issues will turndown which is more serious than the overload they currently face.... There are several High Court forums that doesn't even know the basics of law and are corrupt (i have personal experience). If a High COurt abuses its authority and issues an order that is neither legal and nor right on facts then what do you do? There are so many cases in which the SC has to set aside the HC orders. First they have to measure this bring it down to minimal percentage by impriving the quality of the HC decisions..... 

Most of the HC orders doesn't capture the details of parties' arguments and negate or support them before making their decision; which puts the appellant in a disadvantage and the only recourse the Appellant has is to approach the SC. There must be a better way to assess the genuineness of a case than just defining some categories of cases..which the registry will blindly apply and deny justice.... like they always say, the severity and seriousness of each case is unique to its own facts and circumstances .... I think they need to improve the quality of decisions by the HIgh Court first before they treat themselves like the supreme courts of USA and Cananda.

If the quality of the HC judgments are as good as Supreme Court's then why would people go to Supreme Court when they know for sure the decision is likely to be the same?


@ Sh. Assumi Sir

The Judgment is only 3 months old we have to wait for its listing and ld. members who know about Hon'ble SC listing process may advise by how much time it may get listed so that we can look forward to the outcome.

@ Sh. Mr. Pvt. professional

Thanks for your advise and views. I agree to what you are trying to say here especially "I think they need to improve the quality of decisions by the HIgh Court first before they treat themselves like the supreme courts of USA and Cananda."  which is a good find.


N.K.Assumi (Advocate)     29 July 2010

Dear mr.Pvt-professional, Quality of decision will emerged in High Court only from quality Judges. I have of some writ petition which was thrown out just because the name of the parties were written on the left side and not on the right side vice versa etc.

N.K.Assumi (Advocate)     29 July 2010

Please read as i have heard of- and Dear Dr.Arun Sir, what do you say regarding Article 20 (1) of the Constitution in the context of DVA?

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