New Delhi: The Supreme Court on Monday declined to limit its power to entertain appeals against any court or tribunal order, disposing of the first of 29 constitution bench matters it is hearing.

“In our opinion, no effort should be made to limit powers under Article 136 (of the Constitution)," said a five-judge bench.

Article 136 allows citizens to file so-called special leave petitions (SLPs) to appeal before the Supreme Court against any “judgement, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India". It is up to the apex court to decide whether it wants to hear an appeal or not.

On 19 March 2010, a two-judge bench comprising justices Markandey Katju and R.M. Lodha—later the chief justice—asked a constitution bench to decide the “kinds of cases in which discretion under Article 136 should be exercised".

The bench had listed five grounds based on which SLPs could be admitted by the court—cases with substantial questions of law; matters of public or national importance; cases based on the validity of central or state laws; those related to the validity of constitutional amendments; and where there was a difference of opinion between two high courts.

The court added two more grounds for the constitution bench to consider—if there had been a miscarriage of justice and if the fundamental rights of a person had been violated. In making its suggestions, the bench pointed out that SLPs were increasing the case load on the apex court.

But on Monday, the constitution bench comprising justices Anil R. Dave, Kurian Joseph, Shiva Kirti Singh, A.K. Goel and Rohinton F. Nariman refused to go into these questions. Instead, the bench cited decisions of two constitution benches to rule that these cases had explained the contours of Article 136.

Lawyers argued that Article 136 was part of the Constitution’s so-called “basic structure" and could not therefore be changed—even by Parliament.

A report published in Mint in September 2015 to say that 34,500 SLPs were filed in 2014, and nearly half of them were admitted for hearing by the court.

The report’s author, think tank Vidhi Centre Legal Policy’s senior resident fellow Alok Prasanna Kumar, called Monday’s verdict a lost opportunity. “An article I had written pointed out that 43% of SLPs are admitted by the Supreme Court. If nearly half the appeals are being admitted, then it’s no more an extraordinary jurisdiction—it’s a regular appeal jurisdiction. Moreover, when each bench has its own way of deciding, it becomes a game of chance and not law," he said.

“The court could have given guidelines to bring some systematic way of admitting SLPs, such as if two courts below concurred then SLPs shouldn’t be admitted, or if the amount involved was below a certain mark."

Kumar said that there was no reason to rely on cases decided back in the 1950s, since the situation today was different. “The Supreme Court of today is completely different from that of the ’60s or ’80s. It is time for the court to update itself. It was a chance for the court to start afresh with a fresh set of guidelines, and I think it’s an opportunity lost."

A 2015 study conducted by a group of lawyers reported by The Financial Express found that only 7.23% of judgements delivered in 2014 were on constitutional questions.

“The court has faced increasing pressure to make more concrete the contours of its work. Many criticize the seeming arbitrariness of how the court uses the SLP jurisdiction - with one bench accepting a matter that another would have surely have rejected. Given the wording of Art. 136, it is likely that any bench would still have had discretion to accept or reject any SLP even if they had laid down guidelines, but such guidelines could act as a checklist for judges to consider when admitting cases or at the very least create a useful spectrum of cases," said Nick Robinson, a fellow at the Centre on the Legal Profession at Harvard University who has published work on the Indian judiciary.

Meanwhile, another five-judge bench of the Supreme Court headed by Chief Justice T.S. Thakur on Monday began hearing a case to determine if Brahmo Samaj is a “religious denomination" or a “religious minority" under the Constitution. The case was referred for constitutional interpretation in 1983.

The bench framed questions that require interpretation of the Constitution. The consequences of such determination would include the rights of minority educational institutions in administration, appointment of teachers and determining their service conditions without government interference.

Brahmo Samaj Education Society had sought reference of the case to a constitution bench challenging a West Bengal law that established a college service commission to appoint teachers to government colleges in the state, claiming that as a minority education institution, it should be exempt from the law.

Five-judge benches of the Supreme Court will hear such constitutional cases every Monday and Friday from 2pm to 4pm, according to a court notification on 26 December. These two cases were the first of the lot.

Apurva Vishwanath contributed to this report.

Close