The Special Leave to Appeal

The Indian constitution provides for regular appeals to the supreme court from decisions of the high court’s in article132 to134 , there may still remain some cases where justice might require the interference of the supreme court with decisions not only of the high court’s outside the purview of article132-134 but also of any other court or tribunal within the territory of India. Such residuary power outside the ordinary law relating to appeal is conferred upon the Supreme Court by article136.

Under Article 136 of the Constitution of India the Supreme Court shall have the power to grant special leave to appeal –

a) from any judgment, decree, determination, sentence or order,

b) in any cause or matter,

c) passed or made by any Court or Tribunal, in the territory of India.

The supreme court a plenary jurisdiction in the matter of entertaining and hearing appeals, by granting special leave, against any kind of judgement or order made by any court or tribunal except a military tribunal.

In any proceeding and the exercise of the power is left entirely to the discretion of the supreme court unfettered by any restriction and this power cannot be curtailed by any legislation short of amending the article itself.

In civil cases the special leave to appeal under this article would not be granted unless there is some substantial question of law or general public interest involved in the case, similarly in criminal cases the supreme court will not interfere under article 136 unless it is show that “substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against.” [1]

Any legislation, subordinate to the Constitution, cannot whittle down, the jurisdiction of the Supreme Court under Article 136 or of the Constitutional courts in this country as observed by the Supreme Court in case of Mahendra Saree Emporium II vs. G.V. Srinivasa Murthy (2005) 1 SCC 481. Conclusiveness or finality given by a statute to any decision of a Court or Tribunal cannot deter the Supreme Court from exercising this jurisdiction. It is not restricted even by the appellate provisions enumerated under Cr. P.C or any other statute.

Generally Apex Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against.

Special leave petition

The Article 136 of the Constitution of India reads as under:

“Art. 136. (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 judgement, determination, sentence or order passed or made by any Court or Tribunal constituted by or under any law relating to the Armed Forces.”

2.2 Notwithstanding the provisions for regular appeals from proceedings before the High Courts in Arts. 132-134, of the Constitution of India there may still remain some cases, where justice might require the interference of the Supreme Court with decisions not only of the High Courts but also of any other Court or Tribunal of the land. Accordingly a person aggrieved by any order or judgement of High Court or of Tribunal, may appeal to the Supreme Court by filing special leave petition notwithstanding the provisions for regular appeals. The power of the Supreme Court to grant special leave to appeal from the decision of any Court or Tribunal save military tribunals, is not subject to any constitutional limitation, and is left entirely to the discretion of the Supreme Court.

should supreme court curtail its jurisdiction?

The Supreme Court, while deciding to examine the scope of Article 136 of the Constitution, said it was like Article 226 (writ jurisdiction of High Courts) was a discretionary remedy and the Supreme Court was not bound to interfere even if there was an error of law or fact in the order under challenge.

A Bench consisting of Justices Markandey Katju and R.M. Lodha, quoting various judgments, pointed out that Article 136 was never meant to be an ordinary forum of appeal at all. “It has become a practice of filing SLPs against all kinds of orders of the High Court or other authorities without realising the scope of Article 136.”

Exceptional circumstances

The Bench said: “The very conferment of the discretionary power defies any attempt at exhaustive definition of such power. The power is permitted to be invoked not in a routine fashion but in very exceptional circumstances as [and] when a question of law of general public importance arises or a decision sought to be impugned before the Supreme Court shocks the conscience. The Supreme Court would not under Article 136 constitute itself into a tribunal or court just settling disputes and reduce itself to a mere court of error.”

Limited time

The judges said: “After all, the Supreme Court has limited time at its disposal and it cannot be expected to hear every kind of dispute. The apex court lays down the law for the whole country and it should have more time to deliberate upon the cases it hears before rendering judgment as Mr. Justice Frankfurter observed. However, sadly the position today is that it is under such pressure because of the immense volume of cases in the court that judges do not get sufficient time to deliberate over the cases, which they deserve, and this is bound to affect the quality of our judgments.” Let notice be issued to the respondents, they said.

Alarming situation

The Bench noted the concern expressed by senior advocate K.K. Venugopal in a lecture pointing out that an alarming state of affairs “has developed in this court because this court has gradually converted itself into a mere Court of Appeal which has sought to correct every error which it finds in the judgments of the High Courts of the country as well as the vast number of tribunals. Mr. Venugopal has further observed that this court has strayed from its original character as a Constitutional Court and the apex court of the country. According to him, this is a self-inflicted injury, which is the cause of the malaise which has gradually eroded the confidence of the litigants in the apex court of the country, mainly because of its failure to hear and dispose of cases within a reasonable period of time.”

Mr. Venugopal, the Bench said, “has pointed out that in the year 1997 there were only 19,000 pending cases in this court, but now, there are over 55,000 pending cases and 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 SLPs under Article 136. At present, all these cases have to be heard orally, whereas the U.S. Supreme Court hears only about 100 to 120 cases every year and the Canadian Supreme Court hears only 60 cases per year.”

The Bench, therefore, wanted the issue to be settled by a Constitution Bench. It issued notice to the Supreme Court Bar Association, the Bar Council of India and the Supreme Court-Advocates-on-Record Association. The Constitution Bench may also consider appointing some senior advocates of this court as amicus curiae to assist in the matter so that it can be settled after considering the views of all the parties concerned.