An analysis of the growing burden on the Supreme Court of India, examining four structural concerns: the need for a Constitutional Division, better screening of Special Leave Petitions under Articles 134-A and 136, transparent case management, and the institutional consequences of a polyvocal court for precedent and legal certainty.
The national judicial data grid shows that about 35,000 cases have been instituted in the Supreme Court in the first five months of 2026. Not too long ago, that was as many cases as were instituted in a full year. These cases are of all kinds. A large number of filings are for transferring cases from courts in one place to courts in another place. These transfer petitions are usually at the instance of a husband or a wife, in the grips of a matrimonial dispute. It is not uncommon for five or six cases to be filed at different places, a sure example of litigation being weaponised in a marriage gone sour. Another large category of cases relates to those seeking bail. “Bail Not Jail” is the oft quoted adage. But if numbers are to be believed, then there are a large number of cases where bail is refused to persons accused of crime by the High Courts. In the backdrop of these statistics, it is not surprising to see Judges bemoan the fact that the highest Constitutional Court in the country is swamped with litigation of every variety, with little time to devote to important questions of law or constitutional interpretation. Whatever the framers of the Constitution had in mind for the Supreme Court, today it is something vastly different.
As a lawyer practicing in the Supreme Court, I have seen a lot that has changed, and a lot that has not, in the past 20 years. In this article, I identify four problems that need to be urgently addressed to ensure that the Indian Supreme Court is not relegated to just another tier in the hierarchy of courts. Not all problems have an easy solution, solutions which are proposed are not dependent on a legislative intervention. Rather, they are based on the existing constitutional provisions and the power of the Supreme Court to regulate its procedure through the framing of rules, and its own ability to set boundaries and guardrails for the exercise of jurisdiction.
1. A Constitution Division for the Supreme Court: This is not a new idea. Mr K.K. Venugopal had suggested the creation of a National Court of Appeal at par with the Supreme Court to hear appeals from the High Courts, leaving the Supreme Court to hear important questions of constitutional law.1 Others have also echoed similar thoughts. Inherent in his proposal is the recognition that the verdict of the High Courts should not be final, and there is a need for at least one further appeal. In my view, such a proposal can be implemented from within the Supreme Court itself by creating an internal “constitutional division” within the court. This idea was mooted by the 10th Law Commission in its 95th Report2, under the stewardship of Justice K.K. Mathew.3
Such a constitutional division would hear only important questions of law of constitutional or general public importance. Article 145(3) requires that all cases involving a question of interpretation of the Constitution must be heard by at least five Judges. In addition, there are a number of cases where important questions of law have been referred to a Bench of five or more Judges, or where the President has sought the opinion of the court under Article 143. The constitutional division could consist of a panel of up to 10 Judges, appointed by rotation from the larger pool of Supreme Court Judges. The tenure of any panel would be for at least one term4 of the Supreme Court such that each Judge of the Supreme Court would be part of the Constitutional Division at least once in their tenure as Supreme Court Judges.
2. Reading Articles 134-A and 136 together: The vast majority of cases filed in the Supreme Court are special leave petitions (SLPs) under Article 136. Under this article, almost any order of any court or tribunal can be challenged to the Supreme Court. Technically, an SLP is not an appeal, but a permission (special leave) to prefer an appeal. The Supreme Court wields virtually unlimited discretion to admit or hear such cases.
Anecdotally, in my experience of the last 20 years, the Supreme Court has become more liberal in at least considering whether SLPs are to be heard, i.e. in percentage terms, more cases seem to get past the first hearing and are not dismissed outright at the first hearing itself. After the first hearing, it can take many months or years for the Supreme Court to finally decide to admit or reject such a petition, and more time still before it is finally heard. This creates a huge backlog of “after notice” cases, with each case requiring some time to be heard and disposed.5
One solution suggested by Mr Arvind Datar is to revive the practice of giving/granting a certificate of appeal by the High Court itself.6 Articles 132, 133 and 134 enable the High Court to grant a certificate that the final order passed in a case gives rise to an important question of constitutional law, or a question of law of general public importance. Under Article 134-A, a certificate can be granted by the High Court on the application of one of the parties, or by the High Court on its own. In reality, these provisions are now dead letter, and I am yet to come across a single instance of an appeal under certificate to the Supreme Court except in criminal cases where a death sentence has been passed. Mr Datar suggests that the revival of the practice of grant of certificate would ease the burden on the Supreme Court under Article 136. Perhaps it is time to go a step further.
In every final order, the High Court should itself consider whether the question involved is such that it deserves consideration from the Supreme Court, and make an endorsement to this effect. In cases which do deserve such consideration, the High Court should adopt a healthy practice of keeping the operation of its judgment in abeyance for a limited period of time, to enable the aggrieved party to appeal to the Supreme Court under the certificate. Even where such endorsement is lacking, parties should be asked to apply to the High Court for a certificate before seeking special leave to appeal under Article 136. Barring exceptional cases, only upon refusal, should an SLP under Article 136 be permitted to be filed. This will add a layer of scrutiny to every case at the level of the High Court itself. While it cannot and should not limit the width and breadth of the extraordinary jurisdiction under Article 136, it would bring into place a screening mechanism for cases in which the Supreme Court should exercise its discretion.
3. Case management: The Supreme Court is often criticised for the seemingly arbitrary nature of its listing practices. In 2006, when I first started practising in the Supreme Court, Mondays and Fridays — “miscellaneous” days — were dedicated to freshly filed cases and “after notice” cases which were being considered for admission. Tuesdays, Wednesdays and Thursdays were dedicated to “regular” hearings, i.e., appeals admitted for hearing or where special leave to appeal was granted. Almost invariably, on a miscellaneous day an “after notice” SLP would either be dismissed, admitted for regular hearing, or otherwise disposed of. Whether or not interim relief was to be granted was also decided on a miscellaneous day. This was as crucial when I started practising in the Supreme Court 20 years ago as it is today. Once admitted, a regular hearing case could take years to get listed. The system as it existed was certainly not perfect, but there was at least a sense of order and predictability. The wheels of justice turned slowly even then, but they seemed to move along a straight path.
Delays are nothing new to Indian litigation, but somewhere in the early 2010s, things gradually changed as far as listing of cases was concerned (for the worse) in the Supreme Court. The number of “after notice” matters grew steadily, alongside the realisation that many categories of cases demanded a resolution more quickly and could not wait for a final hearing several years down the line. This led to a practice of listing and disposing pre-admission cases on a non-miscellaneous day (NMD) which is in vogue today. Arguments in these days are no different from arguments in “regular”/final hearing cases, and can take up hours of the court’s time. Today, it is virtually impossible for anyone to predict with any degree of certainty when an after notice or regular hearing case will be listed or heard. On the other hand, there is a perception amongst some members of the public that matters of a privileged few are listed out of turn, while the ordinary litigant has to wait for years. Perhaps nothing can be more damaging to the stature of the Supreme Court of India than this perception.
In my view, to address these problems, it is necessary for the Supreme Court to lay down transparent guidelines for case management, including a timetable for a potential final hearing. It is necessary to give some predictability to the litigant as to when a case may finally be heard, once notice is issued and the matter reaches the pre-admission stage. The expectation from counsel should also be that once a date of listing is intimated in advance, they must prepare accordingly. Part of the reason for a culture of adjournment in Indian litigation is that the lawyer himself finds it difficult to predict what may happen to his case on any given day, including whether it will be heard at all. Different cases may require different treatment, but by and large, case disposal should follow the principle that older cases within the same class of cases should be disposed of first.
When a litigant understands the timelines involved, informed choices can be made on whether it is even worthwhile to file an appeal. Information about when an outcome is expected would also be an important consideration for a litigant to arrive at a mediated or negotiated settlement out of court. Case management is the need of the hour, and any practice directions adopted by the Supreme Court would have a trickle-down effect for High Courts and subordinate courts to emulate.
The Supreme Court’s answer to pendency has been to steadily increase the number of Judges. However, academic research shows that simply adding Judges to a court does not necessarily lead to an increase in disposal of cases.7 In fact, increasing Judge strength at the highest level, i.e., the Supreme Court may lead to greater legal uncertainty, as discussed below.
4. Discordant notes in a polyvocal court: Through a recent ordinance, the strength of Supreme Court Judges has been increased from 34 to 37 (excluding the Chief Justice of India). The last such change was made in 2019. The Judges of the Supreme Court usually sit in Benches of two—three Judges. On a given day, there can be 16—17 Benches of the Supreme Court. This can lead to a wide variety of responses to a case, given the vast diversity of the Judges’ experiences and backgrounds. Many Supreme Court lawyers describe the fate of a case as something of a “lottery” — the same petition may meet a different fate before another Bench. This, in turn, becomes an incentive for a litigant to file an SLP, with not much to lose by “taking a chance”.
The polyvocality of the court has also got more serious implications for the rule of law. Under Article 141 of the Constitution of India, the law declared by the Supreme Court is binding on all courts in India. Supreme Court Benches are generally bound by cases previously decided by earlier Benches on the same points of law and interpretation of statutory provisions. This is known as the doctrine of stare decisis. However, the Supreme Court does have the power to overrule its precedents, subject to certain conditions such as the constitution of a Bench of greater Judge strength. This is important because it enables the legal system to adapt to change and allow for self-correction. However, too frequent a change can be damaging, leaving a person in doubt as to whether the law declared through a judgment today will remain valid a month or a year from now. Predictability and certainty are the cornerstones of a sound legal system. It is also the basis on which commercial decisions can be made with conviction, including investment decisions by foreign investors in the Indian economy.
The sheer number of Judges and the polyvocality of the Supreme Court have led to a much more flexible approach to binding precedent. This was recently highlighted in a recent decision of the Supreme Court in Syed Iftikhar Andrabi v. NIA8. A two-Judge Bench criticised the practice of Benches of the Supreme Court deviating from or watering down a binding precedent, without a formal reference to a larger Bench. The High Courts are put in the unenviable position of either harmonising discordant precedent, or deciding which precedent represents the correct declaration of law.9
It would also appear that a polyvocal Supreme Court is more prone to reversal and overruling of its own precedent. Apart from the concern due to the frequency of such changes, it is worrying that the methods adopted for undoing the Supreme Court’s own precedent have become more varied. In 2024, DMRC Ltd. v. Delhi Airport Metro Express (P) Ltd.10, the Supreme Court used its extraordinary curative power to set aside a 2017 arbitral award that it had itself upheld twice before. Last year, an unpopular order issuing directions for control of stray dogs caused a huge outcry.11 Seemingly reactive to this backlash, the matter was re-assigned to another Bench, which proceeded to modify the directions.12 Then, there was the case of the Supreme Court unwinding the decision of a two-Judge Bench in State of T.N. v. Governor of T.N.13, through the indirect means of an opinion on a presidential reference under Article 143 of the Constitution.14
All of these instances lend credence to the theory that a persistent and dogged litigant can ultimately achieve a reversal in fortune before the Supreme Court through a change in Bench composition brought about by the shifting sands of time, a concern voiced by the Supreme Court itself as far back as 1955 in Bengal Immunity Co. Ltd. v. State of Bihar15.
There is no easy or singular solution to this problem. I believe having a Constitutional Division within the Supreme Court, in which every Judge of the court has a tenure, should build a realisation that Judges of the court are stakeholders in institutional continuity and discipline. It is often said that Judges only speak through their judgments and these pronouncements are their lasting legacy. The easy erosion of earlier judicial rulings only because some Judges feel that their opinion is the better one, should not be the basis of decision-making in the Supreme Court. As one of the Judges in the Bengal Immunity Co. case stated—
220. …I can imagine nothing more damaging to the prestige of this Court or to the value of its pronouncements. … Article 141 invests decisions of this Court with special authority, but the weight of that authority can only be what we ourselves give to it.16
*BA LLB (Hons) (NLS), BCL (Oxon), Advocate-on-Record, Supreme Court of India. Author can be reached at: email@arjunkrishnan.net.
1. “Set Up Four Courts of Appeal, Make SC Constitutional Court: KK Venugopal”, Hindustan Times, 27-11-2020, available at <https://www.hindustantimes.com/india-news/set-up-four-courts-of-appeal-make-sc-constitutional-court-kk-venugopal/story-bhm3CNoAyIGMIO1bT123AM.html>.
2. Law Commission of India, Constitutional Division within the Supreme Court — A Proposal for, Report No. 95.
3. See also, Rajeev Dhavan, The Supreme Court Under Strain: The Challenge of Arrears (1978).
4. Supreme Court Rules, 1966, Or. 2 R. 4 states that the Supreme Court shall sit in two terms, one from the summer break till the Christmas or New Year holidays, and the second term from the end of such holidays till the summer break.
5. Advay Vora, “More than 65 Percent Pending Supreme Court Cases Stuck at Admission Stage”, Supreme Court Observer, 28-2-2025, available at <https://www.scobserver.in/journal/more-than-65-percent-pending-supreme-court-cases-stuck-at-admission-stage/>.
6. Arvind Datar, “Legal Notes by Arvind Datar: The Need to Resurrect Articles 132-134A”, Bar and Bench, 3-8-2024, available at <https://www.barandbench.com/columns/the-need-to-resurrect-articles-132-134a>.
7. Surya Prakash B.S and Siddharth Mandrekar Rao, Increasing Judge Strength: Impact on Reducing Pendency of Cases, available at <https://dakshindia.org/Justice-Frustrated/impact-of-increasing-judge-strength-on-case-pendency-in-india>.
9. Illustratively, the observations of the Allahabad High Court in Neeraj v. State of U.P., 2026 SCC OnLine All 23574.
10. (2024) 6 SCC 357 : (2024) 3 SCC (Civ) 112.
11. City Hounded by Strays, Kids Pay Price, In re, (2025) 9 SCC 1.
12. City Hounded by Strays, Kids Pay Price, In re, (2025) 9 SCC 1.
14. Governor and President: Assent, Withholding or Reservation of Bills, In re, (2026) 1 SCC 1.
15. (1955) 1 SCC 763 : (1955) 6 STC 446 (per Venkatarama Ayyar J., dissenting).
16. (1955) 1 SCC 763 : (1955) 6 STC 446, 944—945 (per Venkatarama Ayyar J., dissenting).
Thank you AoR Arjun Krishnan for sharing interesting ideas on expeditious disposal of cases in the Supreme Court of India. Predictability and certainty are very important dimensions of human life, not just in listing and hearing of matters before courts of law and/or justice. Various proposals have been submitted by different practitioners and scholars from time to time. Since India has a population of at least 1.5 billion (and expected to rise further), the alarmingly lower population to judge ratio at all levels of court hierarchy remains a valid and abiding cause of concern. Supreme Court does not operate in a vacuum. So, concerns at lower levels in the court hierarchy are bound to be reflected in the top court too. Setting up of circuit benches of the Supreme Court in various parts of India is certainly a much awaited and desperately needed solution. Right to justice is a constitutional right and foundation of the republic of independent India. Litigation is bound to rise as awareness of rights keeps growing among citizens and there is a widespread ignorance/violation of duties, responsibilities and obligations. Mismatch between ever rising aspirations of population on the one hand and lackluster performance of the state and its instrumentalities in fulfilling those aspirations on the other hand is one of the reasons for a phenomenal expansion in litigation. Moroever, absence of strict time limits on length of oral arguments made by laweyers, passovers, adjournments/accommodation, no accountability of lawyers, lack of imposition of costs on vexatious litigation, vindictive nature of certain parties, substantially low court fees, conflict of interest of lawyers in success/failure of ADR mechanisms, popular misperception about efficacy of ADR modes are among a wide variety of reasons for the state of affairs. Raising the number of judges and filling up all vacancies is required at all levels to hear and decide the cases.
Time has arisen to constitute one more bench of the “Supreme Court”, more particularly in the southernmost part of our country so as to effetuate speedy disposal of cases as also the same will save the money, energy and time of all the litigants travelling all along from one end of our country to the other end.