Special Leave Petition - Article 136 | Concept & Explanation

Special Leave Petition – Article 136 | Overview

• Introduction
• Importance of Special Leave Petition
• Examination of the section
• Exercise of the discretion
• Difference between Article 136 and Articles 133 & 134
• How to file an SLP?
• Difference between ‘judicial review’ and ‘appellate power’
• Analysis of L. Chandra Kumar v. Union of India
• Law Commission Recommendation

This article tries to give an overview of the concept of special leave petition under Article 136 of the Constitution of India. This extraordinary appellate jurisdiction of the Court under article 136 is significant due to wide discretionary power.

Introduction

Article 329 and Article 124 to 147 of the Constitution of India lay down the composition and jurisdiction of Supreme Court.

The Supreme Court enjoys mainly three types of jurisdiction:

1. Original jurisdiction (articles 131 and 32);
2. Appellate jurisdiction (articles132-134,136) and
3. Advisory jurisdiction (article 143)

Supreme Court of India has been given extraordinary appellate jurisdiction under Article 136 of the Constitution. By virtue of this Article, the court can 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.

This extraordinary appellate jurisdiction of the Court to entertain appeals from courts and tribunals is significant due to its wide discretionary power.[1] Special leave appellate jurisdiction to hear appeals directly from orders of tribunals makes it unique among appellate courts.[2]

I. Importance of Special Leave Petition

The use of the term ‘tribunal’ in article 136 makes the Supreme Court a general appellate court in administrative matters. A vast extension of governmental operations occurred in the twentieth century. This resulted in disputes needing adjudication which led to the creation of various adjudicatory bodies outside the regular judicial hierarchy. Side by side with courts these bodies carry on adjudicatory functions and powers conferred by legislation to adjudicate disputes between individuals inter se, or between individuals and administration.

As innumerable adjudicatory bodies function outside the judicial hierarchy it is extremely desirable to constitute a forum to correct misuse of power or procedural irregularities committed by such administrative bodies. In this context the role played by the Court under article 136 is significant[3].

Also, Article 136 plays a significant role in ensuring justice. Notwithstanding the provisions for regular appeals from proceedings before the High Court in articles 132 -134, there may still remain some cases, where justice might require the interference of the Court with decisions not only of the High Court but also of any other court or of tribunal of the land. In such cases, Article 136 helps in delivering justice.

II. Examination of the section

Article 136

The power given to the Supreme Court by Art. 136(1) is in the nature of residuary power. The power is plenary i.e. absolute. It is a sweeping power, exercisable outside the purview of ordinary law to meet the pressing demands of justice. The Supreme Court has characterised its power under Art. 136 as “an untrammelled reservoir of power incapable of being confined to definitional bounds; the discretion conferred on the Supreme Court being subjected to only one limitation, that is, the wisdom and good sense of justice of the Judges”.[4]

Article 136 reads as:

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 or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

Article 136 confers a special jurisdiction on the Supreme Court. Articles 132 to 135 deal with ordinary appeals to the Supreme Court. They all lay down the conditions under which an appeal will ordinarily lie to the Supreme Court. But under Article 136 a discretion is conferred on the Supreme Court to grant Special Leave of appeal to itself irrespective of the fulfilment of such conditions. The article commences with a non-obstante clause viz, “Notwithstanding anything in this chapter”. This means that the power of the Supreme Court under Art. 136 is unaffected by Arts. 132, 133, 134 and 134(A).[5]

In Bharat Bank Ltd. v. The Employees of the Bharat Bank[6], it was opined that the words ‘Notwithstanding anything in this chapter’, clearly indicates that the intention of Constitution is to disregard in extraordinary cases the limitations contained in the previous Articles.

In Bengal Chemical and Pharmaceutical Works v. Workmen[7] , it was observed that,

“Even if the law says that adjudication of a particular tribunal will be final and conclusive, it cannot be presumed that there was an intention to exclude the exercise of the special power by the Supreme Court under Article 136.”

Further Articles 133-134 relate to appeals in Civil and Criminal proceedings respectively. If a proceeding is neither civil nor criminal and does not involve any question of constitutional interpretation, the only way in which a party may appeal from an order made in such a proceeding is by obtaining special leave of the Supreme Court itself, under the present Article.

Exception to Clause (1) of Article 136

Clause (2) of Article 136 contains an exception to clause (1). It expressly exempts from appeal under this clause the decisions of courts or tribunals that may be constituted under any law relating to the Armed Forces. This clause thus imposes a limitation on the power of the Supreme Court to grant special leave to appeal.

No special leave to appeal before the Supreme Court can be granted against the determinations of the Military tribunals. The view was based on the ground that the Army Act intended the finding of the Court Martial, as and when confirmed by a proper Confirming Officer, to be final subject only to the power of revision for which that Act provided.

Nature of power – discretionary:

The Supreme Court has described the nature of its power under Art. 136 as follows:

“The exercise of the jurisdiction conferred by Art. 136 of the Constitution on this Court is discretionary. It does not confer a right to appeal on a party to the litigation; it only confers a discretionary power of widest amplitude on this Court to be exercised for satisfying the demands of justice.“[8]

The power to hear an appeal is fully based on facts, law and discretion. The power may even be exercised with respect to interlocutory orders. Article 136 (1) of the Constitution confers on the Supreme Court overriding and extensive powers of granting special leave to appeal.

Article 136 does not confer a right to appeal, it confers a right to apply for special leave to appeal which is in the discretion of the court.

The discretionary power under Article 136 cannot be constructed as to confer a right of appeal where none exists. Thus the exercise of the jurisdiction conferred on the apex court by Article 136 of the Constitution implies two steps,

• granting special leave to appeal; and
• hearing the appeal.

At the first stage, while hearing the petition for special leave to appeal, the Supreme Court considers the question whether the petitioner should be granted such leave or not. At this stage, the Court does not exercise its appellate jurisdiction; it merely exercises its discretionary jurisdiction to grant or not to grant leave to appeal. If the petition seeking leave to appeal is dismissed, it only means that the Court feels that a case for invoking its appellate jurisdiction has not been made out. If leave to appeal is granted, then the appellate jurisdiction of the Court gets invoked. The appeal is then heard on merits.

III. Exercise of the discretion

In M. C. Mehta v. Union of India[9], the court has established that judicial discretion has to be exercised in accordance with the law and set legal principles.

The Supreme Court has further detailed in Pritam Singh v. The State[10], 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 the wide range of matters which can come up before it under this Article.”

“Generally speaking, this 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.”

The Constitution does not impose any limitation as to the circumstances, which would justify or warrant the grant of Special Leave.[11] Thus the matter lies within the complete discretion of the Supreme Court and the only limit upon it is the “Wisdom and good sense of the judges” of the Court.[12]

Any court or tribunal in the territory of India.

Art. 136 uses the phrase ‘any court’ and thus empowers the Supreme Court to hear appeals from judgments given not only by the High Courts but even by a subordinate court if the situation demands that its order should be quashed or reversed even without going through the usual procedure of filing an appeal in the High Court. Thus, in Rajendra Kumar v. State, 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.

As the Supreme Court has stated in this connection:

“… the Court has 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 the 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 over all courts in India”.

An outstanding feature of Article 136(1) is that it empowers the Supreme Court to hear appeals not only from courts but also from tribunals in any cause or matter.

The word ‘tribunal’ has been used in Art. 136 in contradistinction to ‘courts’. While all courts are tribunals, all tribunals are not courts. As innumerable adjudicatory bodies function outside the judicial hierarchy, it is extremely desirable that there be some forum to correct any misuse of power or procedural irregularities committed by such bodies. This function is now discharged by the Supreme Court under Article 136. To leave these innumerable adjudicatory bodies outside the pale of any judicial control would be to create innumerable little despots which could misuse their powers, or exercise them improperly, and thus negate the concept of Rule of Law. [13]

The great merit of Article 136 is that irrespective of any statutory provision to the contrary, the Supreme Court can control these adjudicatory bodies by hearing appeals from their decisions and pronouncements. Without some kind of judicial control, there is a danger that tribunals might degenerate into arbitrary bodies, which would be foreign to a democratic constitution. This is the heart of the matter and the reason why the Supreme Court should exercise jurisdiction over tribunals.

IV. Difference between Article 136 and Articles 133 & 134

Whereas the appellate jurisdiction of the Supreme Court under Article 133(1) and 134(1) can be invoked only against final order, no such limitation is imposed by Article 136(1) i.e. appeal under Article 136(1) can be invoked even against an interlocutory order.

Jurisdiction under Article 136:

The Constituent Assembly left the matter to the good sense of the Court to define and delineate the province of the jurisdiction.[14] The appellate jurisdiction under article 136 is immense and cannot be whittled down by any statutory provision.[15] Though the Court agrees that appellate jurisdiction under article 136 cannot be whittled down by any statutory provisions, the Court itself has limited the jurisdiction in L. Chandrakumar v. Union of India[16].

All Courts and all Tribunals in the territory of India except in Clause (2) are subject to the appellate jurisdiction of the Supreme Court. The sweep of the provision is very wide and the court imposed limitation itself in its own discretion.

The apex Court observed that for invoking Article 136(1) two conditions must be satisfied:

1. the act complained against must have the character of a judicial or a quasi-judicial act as distinguished from a mere executive or administrative act; and
2. the authority whose act is complained against must be a court or a Tribunal.

Self-imposed restrictions by the Supreme Court do not divest it of its wide powers to entertain any appeal against any order or judgment passed by any court or tribunal in the country without exhausting alternative remedy before the appellate authority or the High Court.

The power under article 136 is a basic feature of the Constitution. Such an extensive appellate power in respect of tribunals exists in no other comparable jurisdiction.

V. How to file an SLP?

The petition has to contain all the facts which are important for the SC to decide whether an SLP may be admitted or not. This petition has to be duly signed by the Advocate on record and should also be inclusive of the petitioner’s statement that no other petition has been filed in the HC. The same should also have a copy of the judgment the SLP is sought against, along with a verifying affidavit and all relevant documents.

After the petition is filed, the court hears the case and depending on the merits of the case allows the opponent party to state their views in a counter-affidavit. Thereafter, the court decides if special leave can be granted or not. If leave is granted, the SC will exercise its appellate jurisdiction. The court can do either of the following,

1. The case may be argued afresh in Supreme Court and the Supreme Court can rescind, revoke, modify or accept the earlier judgement. Or
2. It can also send back the case to relevant lower court for a fresh adjudication as principles laid down or on account of any issues missing

Time frame within which SLP can be filed:

• SLP can be filed against any judgement of the High Court within 90 days from the date of the judgement. However, there is flexibility at the discretion of the SC.
• Within 60 days against the order of the HC refusing to grant the certificate of fitness for appeal to SC.

Grounds for its Dismissal

A petition for grant of special leave to appeal may be rejected for several reasons, such as:

• the petition is time-barred;
• defective presentation;
• petitioner lacks locus standi to file the petition;
• conduct of the petitioner disentitles him to any indulgence by the court;
• the question raised in the petition is not considered fit for consideration by the Court, or does not deserve to be dealt with by the Apex Court.

VI. Difference between ‘judicial review’ and ‘appellate power’

Judicial review is supervisory rather than corrective in nature. Appellate power, on the other hand, denotes a much broader concept. Judicial review is radically different from the system of appeals. While hearing an appeal the court is concerned with the merits of a decision. But in judicial review, the court is concerned with the legality of the order, i.e. whether it is within the limits of the powers granted.

In an appeal, the question is whether the order is ‘right or wrong and in judicial review whether it is ‘lawful or unlawful’. The rights of appeal are always statutory. Judicial review, on the other hand, is the exercise of the courts’ inherent power to determine whether an action is lawful or not. Instead of substituting its own decisions for that of some other body, as on appeal, the court on review is concerned only with the question of whether the order should be allowed to stand or not.

VII. Analysis of L. Chandra Kumar v. Union of India[17]

Facts:

An appeal by special leave was filed to challenge the judgment of the Madras High Court which had held that the establishment of the Tamil Nadu Land Reforms Special Appellate Tribunal will not affect the powers of the Madras High Court to issue writs. That decision of the High Court was based on the reasoning that the Legislature of the State had no power ‘to infringe upon the High Courts’ power to issue writs under Art. 226 of the Constitution and the exercise its power of superintendence under Art.227 of the Constitution.

Holding:

The seven judges Constitution bench while deciding the fate of the appeal opined that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the constitution is an integral and essential feature of the Constitution, constituting part of its basic structure.

It was further opined that under the existing system, direct appeals have been provided from the decisions of all Tribunals to the Supreme Court under Article 136 of the Constitution. The court modified this stand and held that,

“no appeal from the decision of a tribunal will directly lie before the Supreme Court under Article 136 of the Constitution; but instead, the aggrieved party will be entitled to move the High Court under Articles 226/227 of the constitution and from the decision of the Division Bench of the High Court, the aggrieved party could move this court under Article 136 of the Constitution.”

VIII. Law Commission Recommendation

1. 162^nd Law Commission Report[18]

The law commission recommended that an appeal should be provided to the High Court, to be necessarily heard by a division bench keeping in view the criticism against L. Chandrakumar that there cannot be a judicial review of an order passed by an authority in the exercise of its power of judicial review. The very objective behind the establishment of administrative tribunals is defeated if all cases adjudicated by them have to go before concerned High Courts.

It further made an alternative recommendation for constitution of National Appellate Administrative Tribunal in the following words:

“The Supreme Court has laid down in L. Chandra Kumar’s case (supra) that an aggrieved party can have recourse to the jurisdiction of the respective High Court under Article 226/227 of the Constitution of India, against the decision of the Central Administrative Tribunal. The repercussions of this development of law have already been felt. The Karnataka Government has sought to abolish the Karnataka State Administrative Tribunal. In the news items in the recent past, it has appeared that even the Central Government is proposing to abolish CAT.

The remedy of judicial review by the High Court provided against the decision of the Administrative Tribunal and a possible further appeal to the Supreme Court under Article 136 is not only time-consuming but also expensive. Besides this, the various High Courts may interpret differently any statutory provision concerning the Supra paragraph 1.16 service conditions governing the employees. Thus the lack of uniformity in the High Court decisions and consequently in CAT benches will create confusion in the mind of the litigant.”

2. 215^th Law Commission Report[19]

The Law Commission is of the view that L. Chandra Kumar’s case needs to be revisited by a Larger Bench of the Supreme Court or necessary and appropriate amendments may be effected in the Act in accordance with the law and we have recommended accordingly.

Orders of the Administrative Tribunals are being routinely appealed against in High Courts, whereas this was not the position prior to the L. Chandra Kumar’s case.

The Law Commission was of the view that if at least one appeal is to be provided against the orders of tribunals before they reach the Supreme Court an intra-tribunal appeal could be provided under the Act of 1985. In this context, the Law Commission recommends the Government to make necessary and appropriate amendments in the administrative tribunal Act, 1985 and to request the Honourable Supreme Court to reconsider L. Chandrakumar’s case by a larger Bench of the Supreme Court in the interest of the government servants and to achieve the speedy and less expensive justice.

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References:

1. Law Commission of India Reports, Available Here
2. Prof. M.P. Jain, Indian Constitutional Law (5th ed. 2005) p.239.

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[1] Narpat Singh v. Jaipur Development Authority, (2002) 4 SCC 666, 674.

[2] Pritam Singh v. Punjab, AIR 1950 SC 169.

[3] Prof. M.P. Jain, Indian Constitutional Law (5th ed. 2005) p.239.

[4] Kunhayammed v. Kerala, AIR 2000 SC 2587, 2593.

[5] Article 132: Appellate jurisdiction of Court in appeals from High Courts where case involves substantial question as to the interpretation of the Constitution.

Article 133: Appellate jurisdiction of Court in appeals from High Courts in regard to civil matters.

Article 134: Appellate jurisdiction of Court in regard to criminal matters.

[6] AIR 1950 SC 188

[7] AIR 1959 SC 633

[8] N. Suriyakala vs A. Mohandoss, (2007) 9 SCC 196

[9] 1987 SCR (1) 819

[10] AIR 1950 SC 169.

[11] Subedar v. State of U.P., AIR 1971 SC 125

[12] Penu Balakrishna Iyer v. Ariya M. Ramaswami Iyer, AIR 1965 SC 195

[13] Prof. M.P. Jain, Indian Constitutional Law (5th ed. 2005) p.259

[14] Kunhayammed v. Kerala, AIR 2000 SC 2587, 2593.

[15] Mahendra Saree Emporium II v. Srinivasa Murthy, (2005) 1 SCC 481

[16] AIR 1997 SC 1125

[17] AIR 1997 SC 1125

[18] 162^nd Law Commission Report (1998) on review of functions of Central Administrative Tribunal and Income Tax Appellate Tribunal.

[19] Law Commission Of India Report No. 215. December 2008: L. Chandrakumar be revisited by a larger bench of Supreme Court

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1. Constitutional Law; Notes, Case Laws And Study Material
2. Jurisdiction of Supreme Court of India: Overview