The judgment (20 pages) by the Markandey Katju-R.M.Lodha Bench making a reference to the Constitution Bench to determine the contours of Article 136 can be read at the Supreme Court’s site. [Mathai @ Joby v. George, delivered on March 19, SLP(c)7105/2010]. The Bench relies heavily on the recent Mr.K.K.Venugopal’s R.K.Jain Memorial Lecture. Paragraphs 21 and 22 of the judgment sum up the Bench’s views on the matter. I am reproducing the two paragraphs here:
21.Mr.Venugopal has suggested the following categories of cases which alone should be entertained under Article 136 of the Constitution.
(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.