Is the Supreme Court becoming a Court of first resort for the powerful?

Recently, while hearing Advocate Gautam Khaitan’s writ petition challenging the constitutionality of Section 44(1)(c) of the Prevention of Money Laundering Act, 2002 (PMLA), Chief Justice Surya Kant observed that affluent litigants cannot bypass lower courts and approach the Supreme Court directly. Khaitan was facing prosecution in a money-laundering case linked to the AgustaWestland helicopter deal. Section 44(1)(c) concerns the trials for money laundering offences and how they should be conducted when they are connected to a scheduled or predicate offence.

The context

Khaitan had challenged the statutory architecture governing his prosecution. Senior Advocate Sidharth Luthra, appearing for Khaitan, had argued that Section 44(1)(c) unfairly prejudices accused persons and distorts the ordinary course of criminal procedure. The submission, in substance, was that the provision permits investigative agencies to control forum and sequencing in a manner that could delay trials or dilute procedural safeguards.

The Bench of CJI Surya Kant and Justice Joymalya Bagchi declined to entertain the petition as there were review petitions from its earlier PMLA judgement, where several aspects of the law, including its trial structure, were pending reconsideration. In this backdrop, CJI Surya Kant remarked that wealthy litigants cannot expect to leapfrog judicial tiers and seek immediate recourse to the top court, particularly once prosecution has commenced and trial is imminent.

The remark reflects the Court’s concern with a growing litigation strategy: one where an accused person with resources seeks to relocate a dispute from the Special Court to a constitutional court, converting criminal adjudication into a question of constitutional design.

Understanding Section 44(1)(c)

Section 44 deals with the jurisdiction of Special Courts under the PMLA. Clause (1)(c) provides that where an offence of money laundering is connected with a scheduled offence, the trial for both should, “as far as practicable”, be conducted by the same Special Court. The logic is integrative: money laundering is treated not as an isolated wrong, but as conduct parasitic on an underlying crime. The legislature assumes that a unified trial will avoid inconsistent findings, fragmented evidence and procedural manipulation. 

From the perspective of the prosecution, Section 44 strengthens coherence and efficiency. However, from the perspective of the accused it raises anxieties. Defence lawyers argue that the predicate offence and the laundering allegation may be at different procedural stages with distinct factual foundations and different evidentiary thresholds. A consolidated trial, it is argued, risks prolonging proceedings and blurring doctrinal distinctions between offences. Investigative agencies retain procedural control and get to decide when and how cases are linked.

Procedural manoeuvre

These are not frivolous concerns. They explain why Section 44 continues to attract constitutional scrutiny even after the PMLA has largely been upheld. But what troubled the Court in this instance was not merely the substance of the challenge, but its timing and forum. Entertaining a fresh writ petition at the threshold of trial would have allowed the accused to suspend the ordinary course of adjudication and secure top-court attention at a moment of strategic advantage.

It was this procedural manoeuvre that prompted the Chief Justice’s invocation of judicial “tiers”. India’s court system is deliberately pyramidal. Trial courts are entrusted with fact-finding; high courts exercise supervisory and corrective jurisdiction; the Supreme Court resolves questions of law of general importance and enforces fundamental rights. Article 32, which allows direct access to the Supreme Court, was conceived as a shield against state excess—not as a parallel appellate route or a mechanism for forum substitution.

Yet over time, the Court’s own innovations have softened these boundaries—public interest litigation (PIL), relaxed standing, expansive interim powers. These developments were driven by a democratic impulse, aimed at making constitutional justice accessible to those excluded from ordinary legal processes. The irony today is that this openness is increasingly navigated most effectively by those with resources, networks and elite legal representation.

This phenomenon was long anticipated. Marc Galanter’s distinction between “repeat players” and “one-shotters” explains how institutional familiarity and resource asymmetry shape outcomes even in formally neutral systems. In the Indian context, early critics of PIL warned that judicial informality could be captured by the articulate and the affluent, even as it promised inclusion.

A strategic waypoint?

This dynamic is most visible in criminal and regulatory prosecutions involving powerful individuals. Once investigation gives way to trial, constitutional challenges are mounted not necessarily to vindicate abstract rights, but to reconfigure the process itself. The Supreme Court becomes not merely a forum of last resort, but a strategic waypoint.

The CJI’s remark must be read as an attempt to resist this drift. It is neither a retreat from constitutional adjudication, nor a denunciation of wealth. It is a signal that the Court is uneasy about being transformed into a first-instance forum for those seeking to escape the discipline of trial. 

The Supreme Court’s docket is finite, and its attention is a scarce public resource. When early hearings are secured through influence or urgency constructed by means, other litigants—undertrial prisoners, victims of administrative neglect, pensioners, displaced communities—wait longer. The result is not merely delay, but a creeping perception that justice moves faster for some than for others.

At the same time, the Court must tread carefully. Many of its most consequential interventions—on civil liberties, environmental protection, press freedom, and privacy—have come through direct engagement at moments of urgency. A rigid insistence on exhaustion of remedies could blunt the Court’s counter-majoritarian function. The challenge, therefore, is one of calibration, not closure.

First principles

What the Chief Justice’s remark ultimately gestures towards is a need to recover first principles. Direct access to the Supreme Court must be justified by urgency, irreparable harm, or structural injustice—not by the litigant’s capacity to mobilise constitutional argument at short notice. Section 44(1)(c) of the PMLA may continue to warrant careful judicial scrutiny. But that scrutiny, the Court appears to be saying, should not become a device for procedural evasion.

In reminding affluent litigants that they must traverse the same judicial paths as everyone else, the Supreme Court is not sealing itself off. It is attempting to reaffirm a fragile balance—between openness and restraint, between constitutional guardianship and procedural fairness.