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PETITIONER: BIHAR LEGAL SUPPORT SOCIETY,

       Vs.

RESPONDENT: THE CHIEF JUSTICE OF INDIA & ANR.

DATE OF JUDGMENT19/11/1986

BENCH: BHAGWATI, P.N. (CJ) BENCH: BHAGWATI, P.N. (CJ) MISRA RANGNATH KHALID, V. (J) OZA, G.L. (J) DUTT, M.M. (J)

CITATION:  1987 AIR   38            1987 SCR  (1) 295  1986 SCC  (4) 767        JT 1986   884  1986 SCALE  (2)848

ACT:      Constitution of India, Article 136--Special leave peti- tions  against refusal of bail/anticipatory  bail--Immediate listing  of--  Within administrative jurisdiction  of  Chief Justice--Opportunity of mentioning to be availed of.     Criminal Procedure Code, 1973,  s.439--Bail/anticipatory bail-Refusal   of--Special   leave   petition   to   Supreme Court--Urgent listing--Right to. Judicial    Reform--National   Court   of    Appeal--Setting up--Necessity of.

HEADNOTE:     The writ petition, a sequel to the expeditious consider- ation of the bail application of two industrialists by  this Court at a late night sitting on 5th September, 1986, solic- ited the same anxiety to permeate the attitude and  inclina- tion of the Court in all matters where questions relating to the liberty of citizens arose, and required that the special leave  petitions of small men against orders  refusing  ball must receive the same importance and should be taken up  for consideration immediately. Disposing of the writ petition, the Court,     HELD:  The Supreme Court should not ordinarily, save  in exceptional cases, interfere with orders granting or  refus- ing bail or anticipatory bail, because these are matters  in which  the High Court should normally be final  arbiter.  It should  interfere only in the limited class of  cases  where there is a substantial question of law involved which  needs to  be finally laid at rest by it, or where there is  grave, blatant and atrocious miscarriage of justice. [299 E, A]     It  is not correct to say that this Court is not  giving to  the small men the same treatment as it is giving to  the big  industrialists.  Their special leave petitions  are  as much  entitled to consideration as that of  the  industrial- ists. The Court has always regarded the poor and the  disad- vantaged as entitled to preferential consideration than  the rich and the affluent, the businessmen and the like. [298 A, 297 D]

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296     The  Court has evolved, as a matter of self  discipline, certain norms to guide it in the exercise of its  discretion in  cases  where special leave petitions are  filed  against orders  granting or refusing bail or anticipatory bail.  The question whether such petitions should be listed immediately or not is a question within the administrative  jurisdiction of the Chief Justice and every such petitioner has an oppor- tunity  of mentioning the case before him in  that  capacity for urgent listing and where a case deserves urgent  listing he makes an appropriate order. [299 C, 298 BC]     The  Supreme  Court was never intended to be  a  regular court of appeal against orders made by the High Court or the Sessions Court or the Magistrates. It was created as an apex court for the purpose of laying down the law for the  entire country and extraordinary jurisdiction for granting  special leave was conferred upon it under Article 136 of the Consti- tution so that it could interfere whenever it found that the law  was not correctly enunciated by tower courts or  tribu- nals  and it was necessary to pronounce the correct  law  on the  subject. This extraordinary jurisdiction could also  be availed  by  the apex court for the  purpose  of  correcting grave miscarriage of justice, but such cases would be excep- tional by their very nature. It is not every case where  the apex  court finds that some injustice has been done that  it would  grant  special  leave and interfere.  That  would  be converting the apex court into a regular court of appeal and moreover by so doing it would soon be reduced to a  position where it will find itself unable to remedy any injustice  at all  on account of the tremendous backlog of cases which  is bound to accumulate. [298 D-F]     It  would  be desirable to set up a  National  Court  of Appeal which would be in a position to entertain appeals  by special leave from the decisions of the High Courts and  the Tribunals  in  the country in civil, criminal,  revenue  and labour  cases and so far as the present apex court  is  con- cerned,  it should concern  itself only   with  entertaining cases  involving questions of constitutional law and  public law. [298 H]

JUDGMENT: ORIGINAL JURISDICTION; Writ Petition (Crl.) No. 540 of 1986 (Under Article 32 of the Constitution of India) Jaya Narain Petitioner-in-person. The Judgement of the Court was delivered by BHAGWATI,  C  J: This writ petition has been  filed  by  the Bihar Legal 297 Support Society which is a registered Society having as  its main  aim  and objective provision of legal support  to  the poor  and  disadvantaged sections of the community  with.  a view to assisting them to right for their constitutional and legal  rights through the process of law. The  occasion  for filing the writ petition is set out in paragraph 2 where  it has  been  stated that a’ Bench of this Court  sat  late  at night on 5th September 1986 for considering the bail  appli- cation of Shri Lalit Mohan Thapar and Shri Shyam Sunder  Lal and  that the same anxiety which was shown by this Court  in taking  up the bail application of these two gentlemen  must "permeate the attitude and inclination of this Hon’ble Court in  all matters where questions relating to the  liberty  of citizens, high or low, arise" and that the bail applications of "small men" must receive the same importance as the  bail

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applications of "big industrialists." The petitioner, there- fore,  prays  that special leave  petitions  against  orders refusing  bail  or anticipatory bail should be taken  up  by this  Court  immediately  in the same manner  in  which  the special leave petition of these two "big industrialists" was taken up by the Court.     Now,  we  may  point out that so far as  this  Court  is concerned, the special leave petitions of "small men" are as much entitled to consideration as special leave petitions of "big industrialists". In fact, this Court has always regard- ed  the poor and the disadvantaged as entitled to  preferen- tial  consideration  than  the rich and  the  affluent,  the businessmen  and the industrialists. The reason is that  the weaker  sections  of Indian humanity have been  deprived  of justice  for  long, long years: they have had no  access  to justice on account of their poverty, ignorance and illitera- cy. They are not aware of the fights and benefits  conferred upon  them  by the Constitution and the law. On  account  of their socially and economically disadvantaged position  they lack  the  capacity to assert their fights and they  do  not have  the  material resources with which  to  enforce  their social and economic entitlements and combat exploitation and injustice.  The  majority of the people of our  country  are subjected to this denial of access to justice and, overtaken by despair and helplessness, they continue to remain victims of  an exploitative society where economic power is  concen- trated in the hands of a few and it is used for perpetuation of domination over large masses of human beings. This  court has  always, therefore, regarded it as its duty to  come  to the  rescue  of these deprived and  vulnerable  sections  of Indian humanity in order to help them realise their economic and social entitlements and to bring to an end their oppres- sion  and  exploitation.  The strategy  of  public  interest litigation  has  been evolved by this Court with a  view  to bringing  justice within the easy reach of the poor and  the disadvantaged  sections  of the community.  This  Court  has always  shown the greatest concern and anxiety for the  wel- fare  of the large masses of people in the country  who  are living a life of want and destitution, misery and  suffering and  has  become a symbol of the hopes  and  aspirations  of millions of people in the 298 country.  It  is, therefore, not correct to  say  that  this Court is not giving to the "small men" the same treatment as it  is  giving to the ’"big industrialists".  In  fact,  the concern  shown  to the poor and the  disadvantaged  is  much greater  than  that  shown to the rich  and  the  well-to-do because  the latter can on account of their dominant  social and economic position and. large material resources,  resist aggression  on their rights where the poor and the  deprived just  do  not have the capacity or the will  to  resist  and fight.     The  question  whether special leave  petitions  against refusal of bail or anticipatory hail should be listed  imme- diately  or  not  is a question  within  the  administrative jurisdiction  of  the Chief Justice and we cannot  give  any direction  in that behalf. But, we may point out that  every petitioner who files a special leave petition against refus- al  of bail or anticipatory hail has an opportunity of  men- tioning  his  case before the learned Chief Justice  in  his administrative  capacity for urgent listing and  wherever  a case  deserves  urgent listing, the Chief Justice  makes  an appropriate  order for urgent listing. It may,  however,  be pointed  out  that  this Court was never intended  to  be  a regular  court  of appeal against orders made  by  the  High

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Court  or  the  sessions court or the  Magistrates.  It  was created as an apex court for the purpose of laying down  the law  for the entire country and  extraordinary  jurisdiction for  granting  special  leave was conferred  upon  it  under Article  136 of the Constitution so that it could  interfere whenever  it found that law was not correctly enunciated  by the  lower courts or tribunals and it was necessary to  pro- nounce  the correct law on the subject.  This  extraordinary jurisdiction could also be availed by the apex court for the purpose  of.  correcting grave miscarriage of  justice,  but such cases would be exceptional by their very nature. It  is not  every case where the apex court finds that some  injus- tice  has been done that it would grant special   leave  and interfere.  That would be converting the apex court  into  a regular court of appeal and moreover, by so doing, the  apex court would soon be reduced to a position where it will find itself unable to remedy any injustice at all, on account  of the  tremendous backlog of cases which is bound  to  accumu- late. We must realise that in the vast majority of cases the High  Courts must become final even if they are  wrong.  The apex court can also be wrong on occasions but since there is no  further appeal, what the apex court says is final.  That is  why one American Judge said of the Supreme Court of  the United  States: ’"We are right because we are final: we  are not final because we are right". We must, therefore,  recon- cile  ourselves to the idea that like the apex  court  which may be wrong on occasions, the High Courts may also be wrong and  it is not every error of the High Court which the  apex court  can possibly correct. We think it would be  desirable to  set  up a National Court of Appeal which would be  in  a position  to  entertain appeals by special  leave  from  the decisions of the High Courts and the Tribunals in the  coun- try in civil, criminal, revenue and labour cases and so  far as the present apex court is concerned, it 299 should concern itself only with entertaining cases,  involv- ing  questions  of constitutional law and  public  law.  But until  any such policy decision is endorsed by  the  Govern- ment,  the  apex court must interfere only  in  the  limited class of cases where there is a substantial question of  law involved which needs to be finally laid at rest by the  apex court  for the entire country or where there is grave,  bla- tent  and  atrocious miscarriage of justice.  Sometimes,  we Judges  feel  that when a case comes before us and  we  find that  injustice has been done, how can we shut our  eyes  to it.  But  the  answer to this anguished query  is  that  the Judges  of the apex court may not shut their eyes to  injus- tice  but  they must equally not keep their  eyes  too  wide open, otherwise the apex court would not be able to  perform the  high  and noble role which it was intended  to  perform according to the faith of the Constitution makers. It is for this reason that the apex court has evolved, as a matter  of self-discipline,  certain norms to guide it in the  exercise of its discretion in cases where special leave petitions are filed against orders granting or refusing bail or  anticipa- tory bail. These norms have to be articulated in order  that the people may know as to what is the judicial policy of the apex  court  in entertaining such special  leave  petitions. That  would go a long way towards introducing a  measure  of certainty  in judicial response to such special leave  peti- tions  and  would  also tend to reduce the  inflow  of  such special leave petitions. This was the reason why a Bench  of this Court consisting of two of us, viz., the Chief  Justice and Justice Ranganath Misra, clearly enunciated in an  Order made on 30th October 1985 in special leave petition  (crimi-

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nal) No. 2938 of 1985 that this Court should not  "interfere with  the orders granting or refusing bail  or  anticipatory bail"and  that  "these are matters in which the  High  Court should  normally  become the final authority.  We  reiterate this  policy principle laid down by the Bench of this  Court and  hold  that this Court should not  ordinarily,  save  in exceptional cases, interfere with orders granting or  refus- ing bail or anticipatory bail, because these are matters  in which the High Court should normally be the final arbiter.     The writ petition will stand disposed of in these terms. We appreciate the anxiety and concern shown by the petition- er  for  the  poor and the disadvantaged  in  bringing  this public interest litigation. P.S.S.                                              Petition disposed of. 300