Constitution project

On
Special Leave Petition (Article 136) in Constitution of
India

Submitted to:
Mahendra Prabhu sir

Submitted by:
Pranav mundra
II year
Bcom.LLB.(Hons.)

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Tamil Nadu National Law School, Tiruchirappalli.

Acknowledgment
I would like to express my special thanks of gratitude to my
teacher Mahendra Prabhu sir who gave me the golden
opportunity to do this wonderful project on the topic Special
Leave Petition (Article 136) in Constitution of India' which
also helped me in doing a lot of Research and I came to know
about so many new things I am really thankful to them.
Secondly I would also like to thank my parents and friends who
helped me a lot in finishing this project within the limited time.
I am making this project not only for marks but to also increase
my
knowledge
.
THANKS AGAIN TO ALL WHO HELPED ME.
Pranav mundra
II year
Bcom.LLB.(Hons.)

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Contents
CHAPTER-I.4-7
1. Introduction
2. What is Special Leave Petition (SLP)
3. Essentials in SLP
CHAPTER-II...8-9
1. Objects and purpose of SLP
2. Nature of power under SLP
CHAPTER-III..10-17
1. Case laws in relation to SLPs
2. Indiscriminate filing of SLPs
3. The Supreme Courts view in the matter of frivolous SLPs
4. Scope of Special Leave Petition to be considered: Supreme Court
5. Law relating to Special Leave in other countries: An analysis of certain
select constitutions of the world
6. Distinction between Article 136 and Articles 132-135
7. Power to grant special leave to appeal to be exercised in exceptional
cases
8. Private party can file appeal under Art.136 challenging acquittal
CHAPTER-IV..18-19
1. Conclusion
2. Bibliography

CHAPTER-I
1. Introduction:
Our Constitution has been called as the lengthiest one among all the countrys constitution. As
we know it has been divided into different parts which categorizes all the Articles into specific
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titles. There are many provisions which actually are made for the welfare of the citizens of India
in one or the other. Fundamental Rights are one such example which no one can take away from
any individual. This shows broadness and sacredness of the constitution.
Special Leave Petition is one such mentioned in constitution for making work easy for all
citizens who are not in condition to approach the court easily or approach court in short way they
use this technique. The Constitution of India under Article 136 vests the Apex court with a
extraordinary power to award special leave to plea against every order or verdict decree in each
and every issue or the verdict given or passed by any tribunal or court in India 1.Article 136
confers a special jurisdiction on the supreme court. It opens a non-obstante clause. Special leave
petition or SLP hold a prime place in the Indian judicial system. It provides theaggrieved party a
special permission to be heard in Apex court in appeal against any judgment ororder of any
Court/tribunal in the territory of India.2
In the upcoming sections well study more about SLP closely. The main point which will be
focused will that whether it is helpful for people or not or is it just making things more
complicated like other provisions in Constitution.

2. What is Special Leave Petition?

(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 on made by any court or tribunal constituted by or under any law relating to the
Armed Forces.3
1 This, however,is subject to art.363; see, supra, sec.C (iii)(d). Also see, Ch. XXXVII, Sec.E. Infra, for discussion
on Art.363. See generally The Supreme Court Rules, 1956, order XVI.

Special Leave Petitions in Indian Judicial System" (PDF). Lawsenate.com. Retrieved on 04-03-2016 at 14:02

3 Article 136 of Indian Constitution

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According to Article 136 (1), the Supreme Court is empowered to grant, in its discretion, special
leave to appeal from any judgment, decree, determination, sentence or order in any case or
matter passed or made by any court or tribunal in the territory of India. Article 136 (2), however,
excludes from the purview of the Supreme Court any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to armed
forces4.
The Supreme Court of india which is established under Art. 124 of the constitution, exercises
jurisdiction, which is wider than that of most Apex courts in the world. Our Supreme Court has
the most extensive jurisdiction of any final Court in the world 5. Unlike most Constitution 6, the
constitution of India does not create different Apex Courts in respect of different areas of law.
The Supreme Court under Article 136(1) can hear appeals in cases in which the conditions
mentioned under Arts. 132 to 134-A are not fulfilled, or where the HC refused to grant
certificate of fitness under Article 132,133,134. 7
The Constitution of India, under article 136, gives the Supreme Court the power to grant special
permission or leave to an aggrieved party to appeal against an order passed in any of the lower
courts or tribunals in India8.
By Special leave petition the aggrieved party may file a petition to higher court in opposition to
the verdict being given by a tribunal or a lower court. The Special leave petition is only granted
when there exists a question of law as well as public interest.
The party while going for an SLP has to submit a short summary of the relevant issues and facts
that occurred during the case and should also mention the date in chronological order in which
4 See, The Hindu(Intl Ed.), Sept.4, 1982 p.7
5 Seervai, constitutional law of India, 4th Ed.Vol.3, Universal Book Traders,p.2862
6 The constitution of France, Italy, Russia, Germany etc.
7 Achyut v.state of West Bengal, AIR 1963 SC 1039
8 Delhi judicial service Assn. v. state of Gujarat, AIR 1991 SC 2176
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the events happened. The summary should also include the question of law that a party
(aggrieved party) has, these questions must be related to certain laws and should be related to
general public too.
If the appeal is accepted and registered, depends upon the discretion of court, the aggrieved party
gets the chance to be heard before the court. On depending the qualities and merits of the suit the
court will issue a notice against the respondent to issue a counter-affidavit to this suit. It is the
occasion, when the Apex Court decides whether to grant SLP or not9, if Granted the case will be
converted into a civil suit and hearing will begin from beginning.
The Apex court may change the previous verdict, may give some additions to it or fix with the
earlier judgment. The Supreme Court also has the power to send back the suit or appeal to lower
or subordinate courts if court thinks that some issue are left undiscussed.
The Supreme Courts judgment is declared as law of the land and is binding on all courts in
India.10
Usually petitioner gets the opportunity to file a SLP before Supreme Court within 90 days,
however the court may increase this time period on its discussion.
3. Essentials in SLP:
Special Leave petition can be filed in subsequent situation: SLP can be filed against
any judgment or decree or order of any High Court /tribunal in the territory of India. Or,
SLP can be filed in case the High court refuses to grant the certificate of fitness for appeal

to Supreme Court of India11.

Time period in which SLP can be filed: Special leave petition can be filed within 60
days if HC refuses to grant the fitness certificate to plea to higher authority. Though
normally Special leave petition can be filed before or within 90 after the verdict or order
of High court.

9 Pritam singh v. State, AIR 1950 SC 169: 1950 SCR 453

10 Article 141 of the Indian Constitution
11 Manikchand v. Elias, AIR 1969 SC 751
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Special leave petition can be filed by: Any petitioner or aggrieved(suffered) party
against the verdict of High court or subordinate court or when high court refuses to issue

fitness certificate, but it should be filed within prescribed time.

Contents of Special Leave Petition: The party while going for an SLP has to submit a
short summary of the relevant issues and facts that occurred during the case and should
also mention the date in chronological order in which the events happened. The summary
should also include the question of law that a party (aggrieved party) has, these questions
must be related to certain laws and should be related to general public too.

The scope of Article 136 (1) is very wide and comprehensive and it invests the Supreme Court
with a plenary jurisdiction to hear appeals. Its broad and overriding nature will be evident from
its following features:12

(1) Under it, in suitable cases. Supreme Court can even disregard the limitations
contained in Articles 132 to 134 on its appellate Jurisdiction and hear appeals which it
could not otherwise hear under these Articles.13

(2) Articles 132 to 134 deal with the right of appeal against final decision of the High
Courts. Article 136 (1), on the other hand, uses the words, any court and thus
empowers the Supreme Court to grant special leave to appeal from judgments not only of
High Courts but also from lower courts in India, even without having the recourse to the
usual procedure of filing an appeal in the High Court. 14 In Rajendra Kumar v. State15, the
Supreme Court heard an appeal from the decision of the Chief Judicial Magistrate. The
appellant did not go to the High Court but came straight to the Supreme Court. The
Supreme Court did however observe that it does not ordinarily entertain such petitions.

12 Jagdish Chanana v. State of Haryana, (2008) 15 SCC 704

13 Delhi judicial service Assn. v. state of Gujarat, AIR 1991 SC 2176

14 M.P Jain, Indian Constitutional Law, 7th Ed., Lexis Nexis,p.229-

15 AIR 1980 SC 1510

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(3) The word, order In Article 136 (1) has not been qualified by the adjective final. It
is thus clear that the Supreme Court can hear an appeal even from Interlocutory order.

(4) Article 136 (1) does not define the nature of proceedings from which Supreme Court
may hear appeals. Therefore, such appeals may be heard by the court in any kind of
proceedings, whether civil, criminal, or relating to Income Tax, labour disputes, etc.

(5) Article 136 (1) confers on the Supreme Court power to grant special leave against
orders and determination, etc. of any tribunal, which is very important aspect as a matter
of right of the Supreme Court.

(6) Under Article 136 (1), the Supreme Court may hear appeal even though the ordinary
law pertaining to the disputes, makes no provision for such an appeal.

(7) Being a jurisdiction conferred by the Constitution, it cannot be touched by ordinary

legislative process. It can be affected only by constitutional process.

(8) The scope of this special appellate jurisdiction of the Supreme Court is very flexible.
The matter lies within complete discretion of the Supreme Court16.

16 M.P Jain, Indian Constitutional Law, 7th Ed., Lexis Nexis,p.229-231

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 CHAPTER-II
1. Objects and purpose of SLP:
The power conferred upon the SC by Art. 136 is most desirable. In terms of its significance, it
stands at no lower a footing than the one under Art.32. There is more than one reason why this
plenary power is expressly conferred by the constitution itself.
First, all the cases may not fulfill the conditions stipulated for the issuance of a certificate under
Art.132 to 134-A, and yet the case may involve an important question of law.
Second, the power under Art.132 to 134-A is limited to cases disposed by a HC, but matters
before Courts/Tribunals, other than a HC may, in the interest of justice, require intervention of,
and expression substantial question of law. Or its cognate expressions in the preceding
provisions, is very subjective and the opinion may differ from Judge to judge and from Court to
Court.
Forth, the SC may take into consideration the difference of opinions among various HCs on any
particular issue and may therefore exercise its power under Art. 136 with a view to finally settle
the question to bring about stability, uniformity and predictability of legal consequences.
Fifth, the constitution makers intended to reserve this power with the SC so that the SC may
interference in appropriate cases without depending exclusively upon the issuance of a certificate
by the HC, for its appellant jurisdiction.
The jurisdiction for Art.136 can best be appreciated by considering the consequences that would
ensue in its absence. In a constitutional and political set up like ours, which contemplates a
hierarchical judiciary, the jurisdiction of a higher Court , far less of the Apex Court, cannot be
made solely dependent on the discretion of lower Court.

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2. Nature of the power under SLP:

A bare perusal of Art. 136 brings forth certain salient features about the nature of the power
which it confers upon the SC. Clause(1) which opens with a non obstante caveat signifies the
over riding nature of the power, i.e. the power may be exercised irrespective of any limitations
contained in the foregoing articles in that chapter w.r.t. entertaining appeals17.
As the word final does not qualify the words judgments, orders the SC has the power, in
appropriate cases, to grant special leave even in respect of interlocutory orders18.
Unlike other provision, contained in Chapter V, the power is available not only in respect of
orders and judgments of the HC but (extends to orders etc. of) any court or tribunal19.
The use of the expression any cause or matter empowers the SC to hear appeals without regard
to the subject-matter of proceedings. 20
The SC may hear appeals under Art. 136 even if the ordinary law pertaining to the dispute makes
no provision for such an appeal21.
The least that may be said about the nature of power is that it confers discreation: absolute and
plenary. It is an exceptional and extraordinary power22, of a residuary and reserve nature 23and
,therefore , the province of its exercise cannot be determined exhaustively. It is classical example
17 Bharat bank Ltd. v. Its Employees, AIR 1950 SC 188, per Mahajan, J. reiterated by
SC in P. Nallammal v. state, AIR 1999 SC 2258
18 Z.P. Bhander v. APM Committee, Amagaon, AIR 1973 SC 848, also in Balwant
Singh v. Moolchand, AIR 1971 SC 129
19 UOI v. Swadeshi cotton mills,AIR 1978 SC 1818
20 Pritam singh v. State, AIR 1950 SC 169: 1950 SCR 453
21 M.P Jain, Indian Constitutional Law, N.M tripathi 2002., Lexis Nexis,p.132
22 Dhakeshwari cotton mills v. C.I.T, AIR 1955 SC 65
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of unfettered, unguided and unlimited discretion based only on the wisdom and good sense of
the Judges of the SC.
Article 136 does not confer upon any person the right to appeal

24

but only a limited right to

appeal but only a limited right to apply for appeal. It accordingly, casts and obligation upon the
SC to interfere and adjudicate a matter, if the ends of justice so demand, irrespective of the
nature of the proceedings, the status of the adjudicating Court.

CHAPTER-III
1. Landmark Case laws in relation to SLPs:
Pritam Singh v. the state 25
The Supreme Court observed that the power under Art. 136 is to be exercised sparingly
and in exceptional cases only, and as far as possible, a more or less uniform standard
should be adopted in granting special leave in wide range of matters which can come up
before it under this article. By virtue of this article, we can grant special leave in civil
cases, in criminal cases, in income tax cases, in cases which come up before different
kinds of tribunals and in variety of cases.
The court emphasized on: the only uniform standard which in our opinion can be laid
down in the circumstances is that the court should grant special leave to appeal in those
cases where special circumstances are shown to exist.26
Kunhayammed vs. State of Kerala:27
The court stated in this connection It is not the policy of this court to entertain special
leave petitions and grant leave under Article 136 of Indian Constitution save in those
cases where some substantial question of law of general or public importance is involved
or there is manifest injustice resulting from the impugned order or judgment 28
23 Durga Shankar Mehta v. Thakur Ragunath Singh, AIR 1954 SC 520
24 Mohammad Khalil Chisti v. State of Rajasthan, 2013 CrLJ 637(649)
25 AIR 1950 SC 169: 1950 SCR 453
26 M.P Jain, Indian Constitutional Law, 7th Ed., Lexis Nexis,p.228
27 (2000) 245 ITR 360 (SC)
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However, It would be open to the Supreme Court to interfere with the concurrent
findings of fact, if the infirmity of excluding, ignoring and overlooking the abundant
materials and the evidence, if considered in proper perspective would have led to a
conclusion contrary to the one taken by courts below.29
N. Suriyakala vs. Mohan doss and others 30
The Supreme Court observed that the extent of Article 136 is wider as compare to what is
written in Article 136 of Indian Constitution, however it is available only to certain
appeals. Article 136 is just a Residual power of Supreme Court in order to interfere
with the verdict or Judgment of High court or a tribunal.
Delhi Judicial Service Assn. v. State of Gujarat31:
The court has a special residuary power to entertain appeal against any order of any
court in the country. The plenary jurisdiction of this court to grant leave and hear appeals
against any order of a court or tribunal, confers power of judicial superintendence over all
courts and tribunals in the territory of India including subordinate courts of Magistrate
and District Judge. This Court has, therefore, supervisory jurisdiction overall courts in
India.32
Jamshed Hormusji Wadia vs. Board of Trustees, Port of Mumbai33:
This Court observed that Article 136 does not confer a right of appeal on any party, but it confers
a discretionary power on the Supreme Court to interfere in the suitable cases 34. The court added
28 M.P Jain, Indian Constitutional Law, 7th Ed., Lexis Nexis,p.233
29 Dubaria v. Har Prasad, (2009) 9 SCC 346
30 [(2007) 9SCC 196]
31 AIR 2004 SC 2351
32 M.P Jain, Indian Constitutional Law, 7th Ed., Lexis Nexis,p.229
33 AIR 2004 SC 1815
34 D.D. Basu, Shorter Constitution of India, 14 th Ed., Lexis Nexis, p.825
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that the discretionary power defies any effort at comprehensive meaning of such influence. This
power or influence is allowed to a certain extent i.e. it is not a daily function but a extraordinary
function which is performed in exceptional circumstances only when question of law arises and
where public interest exist. This superseding and extraordinary power has been vested in the
Apex Court to be exercised cautiously and in exceptional cases only when extraordinary
conditions and circumstances are made known to subsist.
Mathai @ Joby vs. George [(2010) 4SCC 358]:
In this case the court observed that Aricle 136 of Indian Constitution is similar to the power of
High Court under Article 226 of Indian Constitution, like Article 226 is a discretionary remedy
similarly Article 136 is also a discretionary remedy of Supreme Court and it is not necessary, that
the is not to bound to interfere in the matter if there is mistake of law or truth in the impugned
order. The use of language in Article 136 clearly indicates that Article 136 does not confer a right
of appeal upon any party but merely vests discretion in the Supreme Court to interfere in
exceptional cases. The court further observed that a constitutional bench should be formed laying
down some broad guidelines as to what kind of cases should be presented under Article 136.
Columbia Sportswear Company vs. Directorate of Income Tax (judgment of
Supreme court of India in SLP no 31543 of 2011):
The issue in the present case before the Supreme Court was whether an SLP can bemaintained in
case of decision or order passed by Authority for Advance Ruling (AAR).AAR was a body
introduced under Section 245 S of the Income Tax Act and Finance Act1993 for giving decisions
on tax liability of certain specified category of tax payers involvedin certain transactions. The
decisions of AAR had binding effect on tax payers. In the present case, the Petitioner
approached the Supreme Court of India against the ruling of AAR under SLP. The Court
observed that AAR is a tribunal. The court observed further that the power of the Supreme Court
of India to grant special leave to appeal is discretionary in nature. The Supreme Court said that
even if good grounds are shown in the SLP for challenging the advance ruling of AAR, the
supreme court can still in its discretion refuse to grant special leave to appeal on the ground
that decision of AAR can be challenged through writ petition under Article 226/227 in the High
Court. The Supreme Court observed that in event any substantial question of general importance
is not involved or similar questions are not pending before the Supreme Court, the Supreme
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Court may not entertain SLP directly against the ruling of AAR thereby laying down the
precedent that Supreme court shall entertain SLP only in case of substantial question of law
involved or similar question is pending in court and the aggrieved party may approach the High
court under Article 226/227.
In Bihar Legal Support Society Vs. Chief of Justice of India and Anr. 35
Constitution Bench of this Court observed as under:"It may, however, be pointed out that this Court was never intended to be a regular court of
appeal against orders made by the High Court or the sessions court or the magistrates. It was
created for the purpose of laying down the law for the entire country ..........It is not every case
where the apex court finds that some injustice has been done that it would grant special leave and
interfere. That would be converting the apex court into a regular court of appeal and moreover,
by so doing, the apex court would soon be reduced to a position where it will find itself unable to
remedy any injustice at all, on account of the tremendous backlog of cases which is bound to
accumulate. We must realize that in the vast majority of cases the High Courts must become final
even if they are wrong".
In this case only the court suggested that the country must a have a national Court of appeal to
entertain appeals from the decision of high court and tribunals in the country.
In Narpat Singh Vs. Jaipur Development Authority 36, this Court observed as under:"The exercise of jurisdiction conferred by Art.136 of the Constitution on the Supreme Court is
discretionary. It does not confer a right to appeal on a party to litigation; it only confers a
discretionary power of widest amplitude on the Supreme Court to be exercised for satisfying the
demands of justice. On one hand, it is an exceptional power to be exercised sparingly, with
caution and care and to remedy extraordinary situations or situations occasioning gross failure of
justice; on the other hand, it is an overriding power where under the Court may generously step
in to impart justice and remedy injustice." 37

35 (1986) 4 SCC 767

36 (2002) 4 SCC 666
37 M.P Jain, Indian Constitutional Law, 7th Ed., Lexis Nexis,p.227
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2. Indiscriminate filing of SLPs:

Each day a vast number of SLPs are filed and rejected on several procedural, technical and
substantive reasons. The delay caused to the court is actually detrimental and substantive
reasons. The delay caused to the court is actually detrimental and substantive reasons. The delay
caused to the court is actually detrimental to the health of the institution of judiciary. As pointed
out by K.K. Venugopal in 1997 there were only 19,000 pending cases in this court but now, there
are over 55,000 pending cases. In a few years time the pendency will cross one lakh cases. In
2009, almost 70,000 cases were filed in this court, of which an overwhelming number were
Special Leave Petition under Article 136. In contrast, the U.S. Supreme court hears only about
100 to 120 cases every year and the Canadian Supreme Court only 60 cases. Thus, it is observed
that the magnitude of the problem in India is rather enormous. Right to a speedy trail is construed
as a right under Article 21 and 14 , within the chapter of Fundamental Rights in the Indian
constitution. Here, it is important to distinguish the writ jurisdiction from that of special leave.
The special leave allows the Supreme Court to admit for deciding not just a final judgment but
any order of the Court. To that extent Article 32 is an original jurisdiction granting certain writ
remediesto be filed before the court. Article 32 is a matter of right of the party before the court,
whereas Article 136 is a matter of discretion of the court. Supreme Court on several occasions
has reiterated the function and established the sanctity of Article 136.

3. The Supreme Courts view in the matter of frivolous SLPs:

Even prior to the Indian constitution a similar discretion was conferred to the Privy Council as is
conferred to the Supreme Court by virtue of Article 136. Sir George Rankin pointed out in the
case, that for them to interfere with a criminal sentence there must be something so irregular or
so outrageous as to shock the very basis of justice and that there must be something which in the
particular case deprives the accused of the substance of fair trail and the protection of the law.
But today even small matters are brought to the Supreme Court. Justice Katju, illustrates the
point by citing examples of the Supreme Court. The probable misuse of Article 136 was
immediately pointed out and taken care in one of the first SLPs in the case of Pritam Singh vs.
State. The judgment uniform guidelines for the use of SLPs. The subsequent line of cases, did
focus on the sparing use of the provisions of Article 136, and suggested uniform guidelines for
the use of SLPs. The subsequent line of cases, did focus on the sparing use of the provisions of
Article 136 but did not subscribe to the requirement of particular guidelines to be set for allowing
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SLPs. The result was enunciated by Justice Dalvi in a private interview. He said that using
Article 136 for common matters, was like asking a super-specialist doctor for general medicines.
Such is the degree of misuse of SLPs.
The Bengal Chemical Ltd, vs. Their Workmen, the court restricted the scope of SLPs to cases
where there was a violation of the principles of natural justice, causing substantial and grave
injustice to parties. Though, this principle was not directly referred to by the subsequent cases.
The point to note here is that these principles have not been over ruled though it may be said that
the jurisprudence regarding SLPs took a turn from hereon.
In P.S.R. Sadhanantham vs. Arunchalam, Justice Krishna Iyer substantiated the reasoning from
limiting the scope of SLPs. He said, The wider the discretionary power, the more sparing its
exercise. A number of times this court as stressed that though parties promiscuously provoke
this jurisdiction, the court parsimoniously invokes the power. It is true that the strictest vigilance
over abuse of the process of the court, especially at the expensively exalted level of the Supreme
Court , should be maintained and ordinarily meddlesome bystanders should not be granted a
visa.
Under the constitutional framework it was the High Courts which were meant to carry out the
functions as the highest appellate body, and the Supreme Court was there ideally as a supervisor.
The intervention of the Supreme Court was deemed to be only that as to correct the High Courts
in exceptional matters. The current position of the court merely suggests that SLP provision
should be used sparingly and in exceptional cases, when a substantial question of law remains
ambiguous and unresolved or where it appears to the court that interference by this Court is
necessary to remedy serious injustice.

4. Scope of Special Leave Petition to be considered: Supreme Court

Holding that the concept behind providing for extra-ordinary jurisdiction vested in the Supreme
Court to entertain an appeal against any decision of a lower authority (under Article 136 of the
Constitution and known as 'Special Leave Petition' in legal circles) has been significantly diluted,
a division Bench of the Court headed by Justice MARKANDEY KATJU has referred the matter
to be decided by a constitutional bench "to decide which kinds of cases should be entertained
under Article 136, and/or for laying down some broad guidelines in this connection."
The division bench, giving the reason for such a move, was apparently appalled by the fact of
numerous petitions being presented before it on every Monday and Friday (known as
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Miscellaneous days in Supreme Court) were each of the Courts hear about 60-100 petitions on
their admissibility. While the success rate of the admission of such matters is not known in strict
terms, these do take away two full working days of the entire Court's docket in as much as no
other work is generally entertained on these days except unless directed by the presiding judge to
take up non-miscellaneous matters for final disposal.
The division bench noted the plight of the Supreme Court under the extended scope of Article
136 in the following terms;- "4. We are prima facie of the opinion that such special leave
petitions should not be entertained by this Court. Now-a-days all kinds of special leave petitions
are being filed in this Court against every kind of order. For instance, if in a suit the trial court
allows an amendment application, the matter is often contested right up to this Court. Similarly,
if the delay in filing an application or appeal is condoned by the Trial Court or the appellate
court, the matter is fought upto this Court. Consequently, the arrears in this Court are mounting
and mounting and this Court has been converted practically into an ordinary appellate Court
which, in our opinion, was never the intention of Article 136 of the Constitution. In our opinion,
now the time has come when it should be decided by a Constitution Bench of this Court as to in
what kind of cases special leave petitions should be entertained under Article 136 of the
Constitution."
The Bench also reflected that while Article 136 indeed specified that the admissibility of such
petitions was a discretion of the Court, it was "not mentioned in Article 136 of the Constitution
as to in what kind of cases the said discretion should be exercised. Hence, some broad guidelines
need to be laid down now by a Constitution bench of this Court otherwise this Court will be
flooded (and in fact is being flooded) with all kind of special leave petitions even frivolous ones
and the arrears in this Court will keep mounting and a time will come when the functioning of
this Court will become impossible."
The bench also heavily extracted from the earlier decisions of the Supreme Court where it was
declared that the remedy under Article 136 was a special one and purely upon the discretion of
the Court to hold that "we feel it incumbent on us to reiterate that Article 136 was never meant to
be an ordinary forum of appeal at all like Section 96 or even Section 100 CPC. Under the
constitutional scheme, ordinarily the last court in the country in ordinary cases was meant to be
the High Court. The Supreme Court as the Apex Court in the country was meant to deal with
important issues like constitutional questions, questions of law of general importance or where
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grave injustice had been done. If the Supreme Court entertains all and sundry kinds of cases it
will soon be flooded with a huge amount of backlog and will not be able to deal with important
questions relating to the Constitution or the law or where grave injustice has been done, for
which it was really meant under the Constitutional Scheme. After all, the Supreme Court has
limited time at its disposal and it cannot be expected to hear every kind of dispute."
In this background, on a concluding note, the Bench stated as under;
23. In our opinion, the time has now come when an authoritative decision by a Constitution
Bench should lay down some broad guidelines as to when the discretion under Article 136 of
the Constitution should be exercised, i.e., in what kind of cases a petition under Article 136
should be entertained. If special leave petitions are entertained against all and sundry kinds of
orders passed by any court or tribunal, then this Court after some time will collapse under its
own burden.
The sentiments raised by the Bench are indeed applaudable given the fact of a large number of
undecided cases haunting the dockets. However what is to be appreciated is the fact that the
limitation on appeal should not come in the way of the quest for justice of the citizens. Depriving
the right to appeal to the highest court should not become translated into allowing the lower
courts a free run in passing arbitrary orders, which are currently checked by the Supreme Court
in appellate jurisdiction. The sentiment of limiting the scope of appeal is, however, not new.
Even the Law Commission of India in its229th Report considered the question "as to whether
there is need for creating a Constitutional Court or Division in our Supreme Court that shall
exclusively deal with matters of constitutional law and four Cassation Benches one each in the
four regions" and made interesting proposals therein. Even the 230rd Report entitled 'Reforms in
Judiciary' also merits consideration in this debate. One can only hope that the plight of the
citizens would be given due weight-age in deciding these issues of immense implications and
ramifications on the legal order in the country.
5. Law relating to Special Leave in other countries: An analysis of certain

select constitutions of the world:

The following inferences may be drawn from a study of fifteen constitutions that were analysed:
1. Modern Trend: Except for the Australian Constitution, the constitutions expressly vesting
the power to grant special leave in their respective Apex Courts are modern constitutions.
All the three constitutions, which provide for this power, the enactments subsequent to
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the enactment of the Indian constitution. It may be said that an express constitutional
provision to that effect is a modern phenomenon and that the older constitutions are silent
on this aspect. However, the existence of some such power under a statute or as a
convention is not disputed.
2. The power under the Indian Constitution is wider: The grant of SLP by the Apex Courts
of other states, unlike the Indian Constitution, is confined to judgments, order etc. of the
second highest Court of the land. It is a condition precedent in those legal systems that
the judicial hierarchy is exhausted up to the second higher Court, only against whose
decisions a special leave may be granted.

6. Distinction between Article 136 and Article 132-135:

The power of the Supreme Court under Art.136 is not fettered with any of the limitations
continued in Artcle 132 to 135.
In JyotendraSighji vs. S.T. Tripathi it has been held that a party cannot gain advantage by
approaching the Supreme Court directly under Art. 136 instead of approaching the High Court
under Art.226. This is not a limitation inherent in Art. 136, it is a limitation which the Supreme
Court imposes itself.
1. Under Articles 132-135 appeal can be entertained by the Supreme Court only against the
final order, but under Art. 136 , the word order is not qualified by the adjective final
and hence the court can garnt special leave to appeal even from interlocutory order.
2. Under Articles 132 to 134 appeal lies only against the final order of the High Court while
under Art. 136 the SC can grant special leave for appeal from any court or tribunal,
from any subordinate Court below the HC, even without following the usual procedure of
filing appeal in the High Court or even where the law applicable to the dispute does not
make provision for such an appeal.
3. Under Art 132 to 134 an appeal can lie in the Supreme Court only against any judgment,
decree, determination, sentence or order of any court or tribunal, but under Art 136 an
appeal may lie against any case or matter.

7. Power to garnt special leave to appeal to be exercised in exceptional cases:

From the above, it is clear that the SC is vested with very wide discretionary power. It is in the
fitness of things that it should have such a wide power as the highest court of the country. But
how this discretionary power is to be exercised has been explained by the SC itself in Pritam
Singh VS. The state:

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The wide discretionary power with which this court id vested under it is to be exercised in
granting special leave to appeal in exceptional cases only, and as far as possible in granting
special leave to appeal in exceptional cases only, and as far as possible a more or less, uniform
standard should be adopted in granting special leave in the wide range of matters which can
come up before it under Art. By virtue of this Art, we can grant special leave in civil cases, in
criminal cases, in income-tax cases, in cases which can come up before different kinds of
tribunals and in variety of other cases. In DC Mills vs. Commissioner of Income Tx WB the
court held that it being an exceptional and over ridding poers it has to be excersiedaparinglyand
with causion and only in special extraordinary situations. Beyond that it is not possible to fetter
the exercise of this power by any set formula or rule.

8. Private party can file appeal under Art.136 challenging acquittal:

In a land mark judgment in RamakantRai vs. MadanRai the SC has held that where an accused is
acquittal is filed by the state, a private party can file appeal against Art 136 against acquittal
order of HC. The appellate power under Art 136 is not to be confused with ordinary appellate
power exercised by appellate courts or tribunals under specific statutes. It is a plenary power
excercisable outside the perview of ordinary law to meet the pressing demands of justice where a
judgment of acquittal by the HC has led to a serious miscarriage of justice. This court cannot
refrain from doing its duty and abstain from interfering on the ground that a private party and not
the state has invoked the courts jurisdiction. The circumstances that the CrPC 1973 does not
provide for an appeal to HC against an order of acquittal by a subordinate court, at the instance
of a private party, has no relevance to the question of power under Art. 136.
TRIBUNALS:
Under Art 136 the power of SC to grant special leave petition is not confirmed to orders or
determination of a court of law, but includes tribunals also. Several tests have been laid down by
the SC to determine whether a particular body or authority is a tribunal within the ambit of Art.
136. The tests are not exhaustive in all cases. It is not necessary that all the tests laid down may
be present in a given case while some tests may be present others may be lacking. It is however,
absolutely necessary that the authority in order to come within the ambit of Art. 136(1) as
tribunal must be constituted by the state.

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In APHL Conference Shillong vs. WA Sangama, it has been held that the Election Commission is
a tribunal as it has been created under the Constitution and power of the state however fractional
it may be. The Commission exclusively resolves disputes, inter alia, between rival parties with
regard to claim for being recognized political party for the purpose of the electoral symbol. Thus,
the Commission fulfills the essential tests of a tribunal and falls within the ambit of Art. 136 (1)
of the constitution.
In Dev Singh vs. Registrar P. and High Court, the SC held that in deciding the appeal under Rile
X(2) od chapter 18-A of the Rules (under Section 35(3) of exercises only a supervisory
administrative control and does not act as a Tribunal disposing of an appeal between two rival
parties and arriving at a judicial decisions. Under Rile X the District Judge the power with the
previous sanction of the HC can delegate to any subordinate judge the power to impose penalties
given in clause (a). Section 35 (4) provides that any order passed by the District judge under this
section shall be subject to the HC. It thus makes it clear that the proceedings and decisions under
this section are not judicial in nature, and therefore, the appeal against the order of the HC was
not maintainable.
In Jaswant Sugar Milla vs. Lakshmi Chand, the Supreme Court held that the Conciliation Officer
exercising power under the UP Industrial Disputes Act is not a tribunal because it does not
possess attributes of a court of justice. The Conciliation Officer is not required to sit in public,
and formal pleading is required before him, he cannot examine witness, compel production of
documents, etc. He is not capable of giving final judgment affecting the rights and obligations of
the parties. In civil cases the special leave to appeal under Art. 134 would not be granted unless
som substantial question of law or general public interest is involved.

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 CHAPTER-IV:
1. Conclusion:
The power conferred by Art.136 on the SC is most noble and desirable in a country of large scale
regional disparities, diverse customs, personal law, administrative challenges etc. However, at the
same time, the same should be cautiously exercised. Article 136 does not confer upon any person
the substantive right to appeal, but merely a procedural right to apply for the grant of a special
leave to appeal. Alike all other manifestation of adjective law, Art.136 must yield to justice. It
can, at best, be a handmaid to best subserve its mistress: justice \, which cannot be denied on a
mere technical or strict view of law. Similarly, the power under Art.136 cannot be exercised to
obstruct the path of justice.
In a democratic set up like ours, where the legislature and the executive have, with the passage of
time, virtually held an attitude of indifference towards the constitutional objective of a strong
people oriented order of governance, the judiciary remains the onlyaccessable organ of the state.
IN our extremely detailed Constitution, which took care to deal, as exhaustively and with as
many issues as possible, it was certainly not by chance that the constitution did not provide for
any criterion for the grant of a special leave. The omission, in fact, is a manifestation of the
farsightedness of the Constitution makers in relying on the wisdom of the judges, dealing with
each particular case and taking note of each factor necessitating the further development of law.
The only stipulated then, which is implicit, is that of justice, real and complete.
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Thus, the ultimate touchstone for the exercise of the power under Art.136, just as the exercise of
any other power by the judiciary, is meeting the ends of justice. Nevertheless, at the same time,
casual exercise of this power has the potential to do more harm than good by putting the entire
justice delivery system in jeopardy.
A system that makes a hyper technical view of Art. 136 and reads it without the general duty cast
under Art.142 belies the hopes pf We, the people. For and by whom the Constitution has been
enacted , and gifted to. What would rather be more anomalous is the fact that the Constitution
would otherwise the power and duty to interpret, uphold and protect it. The endeavor must be not
to suppress cases fit to be entertained under Art.136, but to render justice in all cases by further
enlarging the number of Judges as to be a functional proportion of the population. Thus, the need
today is to strike a functional balance through theinstrumentality of Art.136 between the
administration of justice on the one hand and the strict letter of the law on the other. It must be
remembered that no single criterion can be fit for all cases at any time, or for any case at all
times. And therefore, the SC must act on the bases of its experience, wisdom and sense of justice,
in the light of the constitutional mandate directed at it, while considering the grant of an SLP.

2. Bibliography:

Wikipedia.com
Indian kannoon.com
All India Repoter 2006 How substantial is the Substantial Questional of law for

entertaining an SLP under Article 136 of the Constitution?

Article by Law Senate Law firm Special Leave Petitonas in Indian Judical System.
Article by ArthadKurlekar&JaiminiVyas Special leave petitionas, an impediment to

juctice: Need for structural changes to ensure efficient time allocation of the court
published on Manupatra.

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