BIHAR LEGAL SUPPORT SOCIETYversusTHE CHIEF JUSTICE OF INDIA & ANR.

                      BIHAR LEGAL SUPPORT SOCIETY,                                         A
                                             V.·
                    THE CHIEF JUSTICE OF INDIA & ANR.

                                 NOVEMBER 19, 1986




_
...
      [P.N. BHAGWATI, C.J., RANGANATH MISRA, V. KHALID, G.L.
                      OZA AND M.M. DUTT, JJ.]

             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
                                                                                           B




                                                                                           c
           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 4ppeal~Setting up-Necessity .
                 •     . .                                                D
      of

             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 perme~te the attitude and
      inclination of the Court in all matters where questions relating to the1iberty of
      citizens arose, and required that the special leave petitions of small men E
      against orders refusing bail 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 F
      cases, interfere with orders granting or refusing hail 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 oflaw involved which needs to be fmally laid at rest hy it,
      or where there is grave, blatant and atrocious miscarriage of justice. [299 E, A] ·
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             It is not correct to say t~t 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
       ~~~~m~                                                                              H
                                             295
    296                       SUPREME COURT REPORTS                 [1987] 1 S.C.R.

A        The Court has evolved, a~ 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 he 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 rum in that capacity for
B urgent listing and where a case deserves urgent listing he makes an appropriate
  order. (299 C, 298 BC]                                                                  '~-
                                                                                            ..
         The Supreme Court was never intended Ill 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
c the law for the entire country and extraordinary jurisdiction for granting
  special leave was conferred. upon it under Article 136 of the Constitution so
  tblit it could interfere whenever it found that the law was not correctly
  enunciated by lower courts or tn1Junals and tt 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
D 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 interlere. That would be converting the apex
  court into a regular court of appeal and moreover hi· so doing it would soon
  be re~ucec! 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
E 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
F concern itself only with entertaining cases involving questions of
  ,constitutional law and public iaw. (298 H]

           ORIGINAL JURISDICTION; Writ Petition (Crl.) No. 540 of 1986

           (Under Article 32 of the Constitution of India)
G
           Jaya Narain Petitioner-in-person;'

           The Judgement of the Court was delivered by

           BHAGWATI, CJ: This writ petition has been filed by U1e Bihar Legal
H
                  BIHAR LEGAL SUPPORT SOCIETY v. C.J.I. [BHAGWATI. CJJ            297

(        Support Society. which is a registered Society having as its main aim and A
         objective provision of legal support to the poor and disadvantaged sections of
         the community with.a view to assisting them to fight 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 B
         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" arid 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    c
         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 s<i far as this Court is concerned, the.special
         leave petitions of "small men" are as muc.h entitled to consideration as special D
         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 qumanity 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 rights and benefits E
         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 rights 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
    'r   of access to justice and, overtaken by despair and helplessness, they continue F
         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 lhem realise their
          economic and social entitlements and to bring to an end their oppression and G
          exploitation. The strategy of public interest litigaiion has been evolved by this
          Court with a view to bringingjustice 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 H
          has become a symbol of the hopes and aspirations of millions of people in the
    298                      SUPREME COURT REPORTS                [1987] I S.C.R.

A country. It is, therefore, not correct to say that this Court is not giving to the   )
  "small men" the same treatment as it is givngtothe"bigindustrialists". In fact,
  the concern shown to the poor and the disadvantaged is much greater than
  that shown to the rich and the well-tCHlo because the latter can on account of
  their dominant social and economic position and. large material resources,
B 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 bail 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 petitionerwho files a
c special leave petition against refusal of bail or anticipatory bail 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
D Magistrates. It was created as an apex court for the purpose of laying down the
  law for the entire country and extraordinary jurisdiction for grauting 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
E 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
F 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
G 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
H decisions of the High Courts and the Tribunals in the country in civii criminal,
  revenue and labour cases and so far as the present apex court is concernOd, it
                  B!HAR LEGAL SUPPORT SOCIETY v. CJ.I. [BHAGWATl, C.J ]                 299

          should concern itself only with entertaining cases, involving questions of           A
          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 oflaw 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 misearriage of justice. Sometimes, we Judges
          feel that when a case comes before us and we find that injustice has been done,
                                                                                               B
          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-<liscipline, certain norms to guide it   c
          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
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          response to such special leave petitions and would also tend to reduce the in-
          flow 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
                                                                                               E
        · matters in which the High Court should normally become the fmal 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 oranticipatory bail, because these are ~atters in
          which the High Court should normally be the final arbiter..
                                                                                               F
 ~- -          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.