Note on Appeal by Special Leave

A Note on Appeal by Special Leave

The Supreme Court of India is the Apex Court of India and is the final interpreter of the Constitution and the law.

The Court is also known as the guardian and protector of the people’s Fundamental Rights. The Supreme Court is the final Court of Appeal in all Civil, Criminal and other matters and thus helps in maintaining a uniformity of law throughout the territory of India. The Court is held to be the ultimate repository of all judicial powers at National level by virtue of it being the summit Court at the pyramidal height of Administration of Justice in the country and as the upholder and final interpreter of the constitution of India and defender of the fundamental of Rule of Law. The court is duty bound to uphold the constitutional values and enforce constitutional limitations, as the ultimate interpreter of the Constitution (I.R. Coelho VS State of T.N., AIR 2007 SC 861).

Articles-132 to 134 and 136 of the Constitution of India deals with Appellate jurisdiction of Supreme Court and Appeal by Special Leave respectively.

Meaning of Appellate Jurisdiction:- Appellate Jurisdiction means the power of a superior Court to review the decision of lower/Inferior court. The purpose is to test and correct the proceedings in a cause already instituted and acted upon by the lower court.

Appeal by Special Leave:- Article 136 of the Constitution of India deals with the concept of Appeal by Special Leave. Article 136 of the Constitution of India run as follows:-

       “Article-136. Special Leave to Appeal by the Supreme Court

(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”.

Art.136(1) of the Constitution of India empower the Supreme Court to grant, in its discretion, 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.

Art.136 (2) of the Constitution of India excludes from the scope of Art.136 (1) any judgment or order passed by a tribunal functioning under a law relating to the Armed forces.

Article-136 confers a special jurisdiction on the Supreme Court. It opens with a non-obstante clause, viz. “Notwithstanding anything in this Chapter”. This means that the power of the Supreme Court under Article-136 is unaffected by Articles-132,133,134 and 134A.

Distinction between Article -136 and Articles-132 to 134

Like Articles 132 to 134 of the Constitution of India, Article-136 deals with the Appellate Jurisdiction of Supreme Court. However, there are significant distinctions between these provisions. These are described as follows-

a.   While, Under Articles -132 to 134, appeal to the Supreme Court lies against a decision of the High Court on the other hand Article-136, it may lie against the decision of any court or tribunal. Thus, under Article-136 an appeal lies against the decisions of subordinate courts as well.

b.  While, under Articles 132 to 134, an appeal lies to the Supreme Court against the final order of a High Court on the other hand Article-136, it may lie against an order whether final or not. Even an interlocutory order may be appealed against under Article 136.

c.   While, under Articles 132 to 134, an appeal lie only against judgments, decrees, final orders or sentences passed or made by the High Courts on the other hand Article-136, the Supreme Court may entertain appeal against not only judgment, decrees, orders, or sentences but also against determination.

d.  While, under Articles 132 to 134, the decision appealed against must have been passed or made in any civil, criminal or other proceeding of a High Court on the other hand Article-136, decisions made or passed in any cause or matter may also be appealed against.

e.   While, under Articles 132 to 134, an appeal lies only when the High Court grants a certificate of fitness under Article-134A on the other hand Article-136, appeal lies only when the Supreme Court, in its discretion, has granted special leave to appeal before itself.

Article 136 of the Constitution of India can be invoked upon two condition:-

1.  The proposed appeal must be against a Judicial or quasi-judicial and not a purely executive or administrative order;

2.  The determination or order must have made or passed by any Court or tribunal, in the territory of India.

     

Relevant Case Laws:-

1.  In Bengal Chemical & Pharmaceuticals works Vs. Workmen, AIR 1958 SC 635, the Supreme Court held that Art.136 is in the nature of special or residuary power, exercisable outside the purview of ordinary law, where requirements of justice demand interference by the Supreme Court. It is to be exercised sparingly. The Constitution, for the best of reasons, does not choose to fetter or circumscribe the powers, exercisable under this Article, in any way.

2.  In N.Natarajan Vs. B.K. Subba Rao. AIR 2003 SC 541, the Supreme Court held that Article 136 confers a wide discretionary power on the Supreme Court. It is in the nature of a residuary or reserve power and therefore, it cannot be defined exhaustively.

3.  In Mahendra Saree Emporium Vs. G.V. Srinivasa Murthy, 2005 (1) SCC 481, the Supreme Court held that the jurisdiction under Article 136 cannot be limited or taken away by any legislation subordinate to the Constitution.

4.  The Supreme Court has observed in Pritam Singh Vs. The State, that the power under Article136- 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. By virtue of this Article, we can grant special leave in civil cases, in criminal cases, in income-tax case, in cases which come up before different kinds of tribunals and in a variety of cases.

       The Court has emphasized on the only uniform standard which in our opinion can be laid down in the circumstances is that Court should grant special leave to appeal in those cases where special circumstances are shown to exist.

       In conclusion, the court has said that “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.

In D.S. Mehta Vs. I.R. Singh, AIR-1954 SC the Supreme Court held that no Special Leave to Appeal before the Supreme Court can be granted against the determination of the Military tribunal.