Uncluttering the Supreme Court: Institutional Remedies for Supreme Court Congestion

Introduction

“With such pendency, can we truly say the justice delivery system meets the expectations of the common man? This has created a gap between the judiciary and the people.”

The Supreme Court Justice Abhay S. Oka said while he was delivering a lecture at a function organised by the Supreme Court Advocates-on-Record Association (SCAORA) at Bharat Mandapam, New Delhi, marking the 75th anniversary of the Indian Constitution¹.

The first Supreme Court was established in India in the year 1774 by the Regulating Act, 1773. In 1861, the Supreme Court were abolished and High Court were established. The practice of taking appeals from the High Courts to Privy Council in United Kingdom also started in the 19th century. After Independence, the Supreme Court was established in Delhi on 26-1-1950 after the Constitution was adopted on 26-11-1949. As per the Constitution, the Supreme Court is conferred jurisdiction under Articles 32², 131 to 134³, 136⁴ and 143⁵ of the Indian Constitution. The following jurisdiction was conferred under these articles:

(i) Article 32 (writ jurisdiction) — Allows appeals in cases of violation of fundamental rights by the State.

(ii) Article 131 (original jurisdiction) — Disputes between Union and State or State versus State.

(iii) Article 132 (constitutional appellate jurisdiction) — Allows appeals in cases that involve substantial question of law as to the interpretation of the Constitution.

(iv) Article 133 (civil appellate jurisdiction) — Allows appeals only in civil cases involving substantial question of law of general importance.

(v) Article 134 (criminal appellate jurisdiction) — Allows appeals in criminal matters involving reversal of acquittal by the High Court and pronouncement of death sentence.

(vi) Article 136 (special leave to appeal) — Allows special leave to appeal from any judgment, decree, sentence, order of any court or tribunal (except military tribunal).

(vii) Article 143 (advisory jurisdiction) — President can seek advice from the Supreme Court, it is however not binding.

(viii) Article 137⁶ (review jurisdiction) — Allows the Supreme Court to review its own judgments and orders.

(ix) Curative petition (extraordinary jurisdiction) — It is the legal remedy available after the dismissal of a review plea against a final conviction.

(x) Public interest litigation (epistolary jurisdiction) — It allows courts to address issues raised in informal communications, such as letters or newspaper reports, that highlight public interest concerns.

Though the jurisdiction of the Supreme Court is very wide, yet the majority of cases are special leave petitions. Over the last few decades, however, Indian Supreme Court’s special leave jurisdiction has been broadened so much, that there is nothing special about it anymore.

By the way of this article, we are looking for a mechanism by way of which the Supreme Court can provide fair and timely justice. It is seen that maximum number of cases filed in the Supreme Court of India are filed under Article 136, Constitution of India.

The data taken from national judicial data grid is provided hereinbelow:

As of today — A total of 81,724 cases are pending in the Supreme Court, out of which 23,307 are special leave petitions (civil) and 5852 are special leave petitions (criminal).

In practice, it finds there is huge volume of routine appeals, and special leave petitions, many of which do not raise significant legal questions. This burden has not only slowed the wheels of justice but has also compromised the Court’s ability to focus on its core constitutional responsibilities open.

Causes

India is one of the most litigious countries and the data given herein below shows the pendency worldwide. In Brazil, 20,355 cases were pending in the Supreme Federal Court of Brazil as of 20-12-2024. Japan’s Supreme Court has 1962 cases pending according to the 2023 Annual Report. 1318 cases as of 21-6-2025 are pending in the UK Supreme Court. According to the year-end report on federal judiciary 2024, only 1376 cases were filed in the Supreme Court of the US.

While India, highest of all the countries, has 84,312 cases pending before its Supreme Court, according to the National Judicial Data Grid.

Let us now examine the reasons for huge pendency in India:

(a) No checks and balances under Article 136: India having highest litigation in the Supreme Court is because the Article 136 of the Indian Constitution is widest in comparison to UK, US and Australia. In UK, Rule 12(1), Supreme Court Rules, 2024⁷ state than an application or permission to appeal must be made before the court of appeals and an application may be made to the Supreme Court only if the lower court has refused to grant permission to appeal. For permission to appeal to the UK Supreme Court, an application must determine:

(i) Court’s jurisdiction to hear the appeal.

(ii) That the appeal raises arguable/legal points of sufficient merit or public importance.

Courts may seek written or oral submissions. Permission may be limited to specific grounds.

Unlike India, the Registrar may refuse to issue any application on lack of jurisdiction, unreasonable grounds or if he feels that is an abuse of the process. Hence there is a filtering mechanism.

In the United States, a party who wants to appeal to the Supreme Court has to file a petition for a writ of certiorari. The petition is reviewed by the certiorari pool, where law clerks summarise the case for the Justices. At least four of the nine Justices must vote in favour of granting certiorari — a tradition known as the “rule of four”. This process ensures that the Court hears only a small number of cases involving nationally important legal issues.

Grounds for granting certiorari as per Rule 10, Supreme Court Rules, 2023⁸:

(a) Circuit split: Appellate courts differ on an important matter of federal law.

(b) Conflict between State Supreme Court and federal appellate decisions.

(c) A federal question of high importance.

The Australia High Court is the highest forum of appeal and the Supreme Court of the land. Grounds for special leave application are given under Section 35-A, Judiciary Act, 1903⁹.

When deciding whether to grant special leave to appeal, the High Court can consider anything it thinks is relevant, but must consider:

(a) Whether the case involves a legal question—

(i) important to the public, either broadly or in a specific context, or

(ii) needs a final ruling from the High Court because lower courts have disagreed on it.

(b) Whether it is important for justice for the High Court to review the judgment.

In Japan, the Supreme Court’s appellate jurisdiction, referred to as “jōkoku” or final appeal, is strictly limited and structured to prevent the Court from functioning as a general appellate forum. The Civil Procedure Code, 1996 (Articles 312-318)¹⁰ and Criminal Procedure Code, 1948 (Articles 405-414)¹¹ provide the specific grounds, procedures, and limits for final appeals.

(1) Direct final appeal

This form of appeal is allowed only when the case involves:

(i) A violation of the Constitution, such as infringement of fundamental rights or due process.

(ii) A serious procedural mistake made by the lower courts (e.g. a court refusing to hear a party or failing to apply the proper law).

These appeals are automatic in the sense that they do not require prior permission, but they are accepted only if they clearly raise constitutional or procedural questions.

(2) Petition for acceptance of appeal

This is a discretionary appeal where the party must convince the Supreme Court that:

(i) the High Court’s decision conflicts with a prior Supreme Court ruling, or

(ii) the case involves a very important question of law that needs the Court’s interpretation, even if no conflict exists

In comparison to all the abovementioned countries, the Supreme Court of India, under Article 136, has the widest jurisdiction. Article 136 is herein quoted below:

136. Special leave to appeal by the Supreme Court.—(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.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.¹²

It does not have narrow and limited scope like the other countries mentioned above. The discretion given is very liberally used, and the end result is innumerable special leave petitions’ (SLPs) huge pendency, backlogs and slower justice.

(b) Wide discretionary power: The Supreme Court’s discretionary power under Article 136, lacking strict parameters, has led to subjective interpretations and unpredictability in legal outcomes. In Union Carbide Corpn. v. Union of India¹³, Venkatachaliah, J., stated:

58. This Court had occasion to point out that Article 136 is worded in the widest terms possible. It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing of appeals by granting special leave against any kind of judgment or order made by a Court or Tribunal in any cause or matter and the powers can be exercised in spite of the limitations under the specific provisions for appeal contained in the Constitution or other laws.

(c) Proliferation of SLPs: SLP filings have surged from 10,000-15,000 annually in the 1980s to over 70,000 in 2023, leading to a significant backlog. This increase reflects a growing dependence on the Supreme Court for justice, which strains the Court’s capacity. The faith in Supreme Court, and there is a growing tendency to bring every case up to the Supreme Court is also using the discretion widely, which results in proliferation.

(d) Absence of uniform guidelines: Despite early recognition of the need for consistent standards in granting SLPs, no uniform guidelines have been established, resulting in unpredictability for litigants. the absence of clear criteria creates unpredictability and inconsistency, complicating the assessment of the merits of an appeal. For instance, the Supreme Court in Dhakeswari Cotton Mills Ltd. v. CIT¹⁴, held that:

8. … It is not possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested in this Court by the constitutional provision made in Article 136. The limitations, whatever they be, are implicit in the nature and character of the power itself. It being an exceptional and overriding power, naturally it has to be exercised sparingly and with caution and only in special and extraordinary situations. Beyond that it is not possible to fetter the exercise of this power by any set formula or rule.

The guidelines for special leave are precisely codified under the Supreme Court Rules in the UK and the US. The same purpose is served by Civil Procedure Code, 1996 and Criminal Procedure Code, 1948 in Japan.

(e) Lenient approach in granting special leave: The Supreme Court’s leniency in admitting SLPs, including cases where new grounds are introduced, has contributed to the backlog of cases. the Supreme Court in Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd.¹⁵, the Court was hesitant to expressly declare on the liberal nature of granting leave to appeals. The relevant para is extracted hereinbelow:

42. We make it clear that as far as heavy pendency in this Court on account of liberal exercise of jurisdiction under Article 136, Constitution of India is concerned, we do not wish to make any comment as this is a matter in the discretion of the Court and it is for the Court to address this issue….

In the USA, grounds for granting writ of certiorari (SLP equivalent in the US) are explicitly mentioned in Rule 10, Supreme Court Rules, 2023—

10. Considerations governing review on certiorari.—Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers:

(a) a United States Court of Appeals has entered a decision in conflict with the decision of another United States Court of Appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a State Court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power;

(b) a State Court of last resort has decided an important federal question in a way that conflicts with the decision of another State Court of last resort or of a United States Court of Appeals;

(c) a State Court or a United States Court of Appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.

The Australian High Court (highest court in the country) only grants special leave application on certain grounds mentioned in Section 35-A, Judiciary Act, 1903:

35-A. Criteria for granting special leave to appeal.—In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act, the High Court may have regard to any matters that it considers relevant but shall have regard to:

(a) whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law:

(i) that is of public importance, whether because of its general application or otherwise; or

(ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and

(b) whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates.

(f) Government factor: The Government of India, including both Union and State entities, is the largest litigant in the Indian legal system. Its active role in litigation has significantly contributed to the increase in the number of SLPs filed before the Supreme Court. It is estimated that over 50-60% of the cases filed in Indian courts involve the Government either as a petitioner or respondent. This volume places considerable strain on the judicial system, particularly at the apex level where SLPs are meant to be a limited remedy. There is a strong bureaucratic tendency to avoid responsibility by forwarding matters to the courts. This results in the filing of repetitive, meritless petitions that unnecessarily burden the Court and delay the adjudication of more deserving cases. In Urban Improvement Trust v. Mohan Lal¹⁶, the Court remarked that government bodies ought to act with restraint and responsibility rather than escalate every dispute to the highest court. Similarly, in Union of India v. Pirthwi Singh¹⁷, the Court, to ensure that the Union of India is far more circumspect, costs of Rs 1,00,000 were imposed and it was observed that the Union of India must shape up its litigation policy.

Suggested reforms

(i) Adoption of the ADR method for dispute resolution

Adoption of alternative dispute resolution (ADR) mechanisms can play a significant role in reducing the backlog in the Supreme Court of India by diverting a portion of disputes away from litigation and toward faster, more efficient modes of resolution. ADR includes arbitration, mediation, conciliation, and negotiation — processes that are often quicker, less formal, and more cost-effective than court proceedings. The Supreme Court is often approached with cases that do not necessarily involve complex questions of constitutional or public law but arise out of contractual disputes, family issues, or other conflicts. Many of these matters can be effectively resolved through ADR, especially mediation and conciliation, which allow the parties to reach a mutually acceptable resolution without litigation. If disputes are resolved at the pre-litigation stage or at lower judicial levels through ADR, it significantly reduces the number of cases that escalate to the Supreme Court. As a part of its judicial reforms, China strengthened its pre-litigation mediation mechanisms, particularly in civil and administrative cases. Courts are now required to guide parties into mediation before accepting a case formally. This has filtered out a large number of minor disputes, freeing the Supreme Court of China to focus on complex legal issues that require its direct intervention.

(ii) Split the Supreme Court into two divisions

Splitting the Supreme Court into 2 divisions — constitutional and legal division — would ensure that important constitutional matters are not delayed due to simultaneous hearings of routine matters. The legal division will hear all the matters which do not involve any substantial question of law and would act as a court of appeal. The constitutional division would allow the Indian Supreme Court to retain its constitutional character.

(iii) Establish the regional benches of Supreme Court

Regional benches would allow for a more equitable allocation of judicial resources. Instead of having all Judges deal with the nationwide cases from one location, the workload could be divided based on geography, subject-matter specialisation, or volume. This would enable quicker hearings, better case management, and more predictable timelines. Another advantage lies in reducing the adjournments and delays that result from logistical constraints, including travel time for lawyers and parties. With regional benches, it would be easier for litigants to pursue their cases and for lawyers to appear without long-distance travel. This would not only reduce pendency but also support inclusivity by ensuring that justice is accessible from every corner of the country. Moreover, setting up regional benches is consistent with the principle of equitable access to justice enshrined in Article 39-A¹⁸, Constitution. One of the most impactful changes by the judicial reforms in China was the expansion of circuit courts of the Supreme People’s Court. These regional benches, located in cities like Shenzhen and Chongqing, are vested with the same authority as the Central Court in Beijing. They allow cases of national importance to be heard locally, easing the Central State Planning Commission’s (SPC’s) burden. This decentralisation has reduced case congestion in Beijing and improved access to justice across China’s vast territory.

(iv) Filtering mechanism

The cert pool in the US Supreme Court has played a key role in managing the high volume of petitions for writ of certiorari (US equivalent of special leave petitions) thereby indirectly helping to manage pendency. The cert pool is a system in which participating Justices share their clerks to collectively review and summarise the thousands of cert petitions filed each term — typically around 9000 to 10,000. Instead of each Justice’s chambers separately reviewing every petition, a single law clerk from the pool prepares a memorandum (cert memo) for each petition. This memo includes a summary of the case, key issues, relevant law, and a recommendation on whether the Court should grant or deny review. The cert pool helps reduce duplicative effort, allowing the Court to process a massive number of filings more efficiently. An institution of similar sort should be devised in India where a court appointed panel of advocates will review the merit of the SLPs, in order to save the time of the court and so that the Supreme Court of India can be relieved of excessive burden of deciding merit of SLPs based on oral hearing. However, this should be an optional procedure in order to prevent excessive gatekeeping. Requiring a certificate of merit from a senior advocate in SLPs is an idea worth serious deliberation. such a measure could, in principle, help reduce the backlog in the Supreme Court of India. At a conceptual level, mandating a certificate of merit for SLPs could act as a pre-screening mechanism. Senior Advocates would be ethically bound to certify only those petitions that raise substantial legal questions or manifest injustice. This would discourage frivolous or speculative filings, much like how the certificate functions in curative petitions (as per Rupa Ashok Hurra v. Ashok Hurra¹⁹). Like a panel of amicus curiae, a panel of Senior Advocates, of those Senior Advocates who are desirous of participating in it, a cert pool, can also be created in the Supreme Court of India.

(v) Narrowing the scope of Article 136

The Law Commission of India in its 14th Report dated 26-9-1958²⁰, advocated the need for a restrained approach towards grant of special leaves to appeal against judgments and orders passed by the High Courts. The Commission felt that a liberal grant of leave to appeal had the tendency to adversely affect the prestige of the High Courts and made suggestion that,

(vi) Imposing costs for frivolous SLPs

The imposition of costs against frivolous SLPs is an important measure to address the misuse of Article 136. When litigants file petitions without substantial grounds or merely to delay proceedings, it burdens the judiciary and the Court’s ability to focus on significant matters. Recently the Supreme Court in Food Corporation of India v. Namita Paul²¹, the Bench comprising of Bela M. Trivedi and Satish Chandra Sharma, JJ., has dismissed the frivolous SLP filed by the Divisional Manager of Food Corporation of India (FCI) for wasting Court’s time and imposed a cost of Rs 50,000. This decision serves as a warning against the filing of frivolous petitions.

(vii) Time-bound disposal of cases

Procedural reforms that mandate time-bound disposal of SLPs would help address the issue of delays in justice delivery. By imposing stricter timelines for deciding SLPs, the Supreme Court can ensure quicker resolution of cases and reduce the backlog. Enhanced case management systems and technology-driven reforms could also streamline the process, making the Court more efficient in handling its docket, matters away from the Supreme Court. Internal management reforms like stricter deadlines for resolving cases, limited use of delaying tactics like repeated requests for review, and optimised staff specialisation have also contributed in the decline of backlog for the Supreme Federal Court of Brazil.

(viii) Huge pending appointments of Judicial, non-judicial and judicial officers in the judiciary

There is a tendency of appointments in these posts also due to which many courts are not able to work properly hence a factor responsible for the increase in pendency of cases. Appointments on these posts should be done before the vacancy is about to be created. Suppose that, it is known that at the end of the year 30 Judges all over the High Court of India are about to get retired, then the procedure to fill those 30 Judges vacancy should get started and the day they get retired the newly appointed can join the next day so that the working is not affected.

(ix) Creation of a national court of appeal

In Bihar Legal Support Society v. Chief Justice of India²², P.N. Bhagwati, J., proposed the creation of a National Court of Appeal, specifically dealing with constitutional and public laws having the power to entertain matters of special leave. The Court held that:

3. … 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 Supreme Court is concerned, it should concern itself only with entertaining cases, involving questions of constitutional law and public law.

(x) Technological reforms

The judicial reforms in Brazil have helped bring down its case backlog from over 1,00,000 in the early 2000s to approximately 20,300 in 2024. India can take inspiration from such reforms. In Brazil, another reform involves the use of virtual plenary sessions. These sessions allow justices to vote electronically on certain matters, including general repercussion assessments and precautionary measures, without the need for in-person hearings. Virtual sessions have increased the speed of decisions. Technology has also played a critical role in reducing the backlog. The STF has deployed artificial intelligence tools such as “victor”, to assist in identifying and sorting cases, particularly those with similar legal questions or those that do not require full judicial review. Also, the judicial reforms in China have significantly reduced case backlog in the China’s Supreme People’s Court. The smart court initiative, a major part of China’s judicial modernisation, saw wide deployment of artificial intelligence, digital filing systems, online mediation, and virtual courtrooms. AI tools assist in tasks like sorting cases, recommending similar precedents, and guiding parties through pre-trial stages. These tools have drastically reduced the time needed for preliminary case processing and increased the speed of judicial decision-making.