1

CONSTITUTIONAL LAW -II

TOPIC: ARTICLE 136 : SPECIAL LEAVE PETITION

FACULTY:MR.A.NAGESHWAR RAO

NAME:RAJESH KUMAR RAMAN

ROLL NO. :2016-126
SEMESTER: 4th
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INTRODUCTION

'Special Leave Petitions in India (SLP)' holds a prime place in the Judiciary of India, and has
been provided as a "residual power" in the hands of Supreme Court of India to be exercised only
in cases when any substantial question of law is involved, or gross injustice has been done.

The Constitution of India under Article 136 vests the Supreme Court of India with a special
power to grant special leave, to appeal against any judgment or order or decree in any matter or
cause, passed or made by any Court/tribunal in the territory of India.

This is special power, bestowed upon the Supreme Court of India which is the Apex Court of the
country, to grant leave to appeal against any judgment in case any substantial constitutional
question of law is involved, or gross injustice has been done.

Special leave petition or SLP hold a prime place in the Indian judicial system. It provides the
aggrieved party a special permission to be heard in Apex court in appeal against any judgment or
order of any Court/tribunal in the territory of India.
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OBJECTIVE

The objective of this project to study to study the aspects of the article 136 of Indian Constitution
which is Special leave Petition.

HYPOTHESIS

The researcher believes that the Special leave petition is prevalent in India.

RESEARCH METHODOLOGY

The method of doctrinal study has been followed in the present project. The study is based on
study of various published and online sources. Since researchers are examining work of eminent
authors, the original publishers of various books therefore are focused only on secondary
sources.

COLLECTION OF DATA

For the purpose of study various books and journals have been referred from library as well as e-
library.

LITERARY RESOURCES:

SCOPE OF THE STUDY

The results of this study will provide an on sight to how the Special Leave Petition function in
Indian and how it is means to provide ends of justice to people who want to file appeal in front of
Supreme Court India.
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PROJECT LAYOUT/CONTENT Page No.

Introduction--------------------------------------------------------------------------------------1.
Synopsis------------------------------------------------------------------------------------------2-1.
1.APPEALL BY SPECIAL LEAVE – ARTICLE 136-----------------------------------
2.DISTINCTION BETWEEN ARTICLE 136 AND OTHER APPELLATE JURISDICTION
3.CONSTITUTIONAL MATTERS:------------------------------------------------------
4. CIVIL MATTERS---------------------------------------------------------------------
5. APPLEAL IN CRIMINAL CASES ARTICLE 134.-----------------------------

6.APPEAL BY SPEC IAL LEAVE-ARTICLE 136----------------------------------

6.2 CONCURRENT FINDINGS OF THE TRIAL COURT AND THE HIGH COURT-------

6.3 CONCURRENT FINDING OF FACT- ------------------------------------------------------

6.4 TRIBUNALS-----------------------------------------------------------------------------------
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1. Appeal by special leave – Article 136

Under Article 136 the Supreme Court is authorized to grant in its discretion special leave to
appeal from (a) any judgment, decree, determination, sentence or order, (b) in any case
matter, (c) passed or made by any court or tribunal in the territory of India. The only
exception to this power of the Supreme Court is with regard to any judgment, etc. of any
court or tribunal constituted by or under any law relating to the Armed Forces.
This article vests very vide powers in the Supreme Court. The power given
under this Article is in the nature of a special residuary powers which are excisable outside
the court in case where the needs of justice demand interference by the highest court of the
plenary jurisdiction in the matter of hearing and entertaining appeals by granting special
leave against any kind of judgment or order made by nay Court or Tribunal ( except a
Military Tribunal) in any proceedings and in the exercise of power is left entirely to the
discretion of the Court unfettered by any restrictions and this power can not be curtailed by
any legislation short of amending the Article itself.1

1
Basu, D.D.-An Introduction to the Constitution of India. P.223
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2.DISTINCTION BETWEEN ARTICLE 136 AND OTHER APPELLATE

JURISDICTION
Supreme Court under Article 136 is not fettered with any of the limitation contained in Article
132 to 135:
In Jyotendra Singhji vs. S.T. Tripathi 2 it has been held that a party can not gain advantage by
approaching Supreme Court directly under Art. 136 instead of approaching the High Court
Under aart. 226. This not a limitation inherent in Art. 136 it is a limitation which the Supreme
Court Can impose itself.
(1) Under Art. 132 to 135 appeal can be entertained by 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 grant Special leave to appeal even from interlocutory order.

In any country, the judiciary plays the important role of interpreting and applying the law and
adjudicating upon controversies between one citizen and another and between a citizen and the
state.

APPELLATE JURISDICTION

The supreme court is primarily a court of appeal and enjoys extensive appellate jurisdiction .It
may be discussed under the following heads :

1. Constitutional matters.

2. Civil matters.

3. Criminal matters

4. Appeal by special leave.

2
AIR 1993 SC 1991
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3.CONSTITUTIONAL MATTERS:

Under Article -132(1), an appeal lies to the supreme Court from any judgment, decree or final
order. Whether in a civil, criminal, or other proceeding of a high Court if it certifies that the case
involves a substantial question of law as to the interpretation of the constitution.

According to Article 132(3), where such a certificate is given , any party in the case may appeal
to the supreme court on the ground that any such question has wrongly decided.
Under Article 134(A) the High court can grant a certificate for appeal to the supreme court under
Article 132 either on its own motion or on oral application of the aggrieved party immediately
after passing the judgment, judgment, decree or final order. Prior to this High court could do
only on the application of the aggrieved party.
Under Article (1) three conditions are necessary for grant of certificate by the High court.
1. The order appealed must be against a judgment, decree or final order made by the High court
in civil, criminal or other proceedings.
2. The case must involve a question of law as to the interpretation of the this constitution and
3. If the High court under Article -134(A) certifies that the case be heard by the supreme court .
The words other proceedings include all proceedings other than civil and criminal they include
“revenue proceedings” which includes proceedings under the sales-tax act or the Income –tax
Act, Etc.
Secondly, the case must involve a substantial question of law which has been decided by the
Supreme Court in a previous case. But if there is a difference of opinion on any question of law
among High court, and there is no direct decision of the Supreme Court on that point it would be
a substantial question of law.

A very broad power is thus conferred on the supreme court to hear appeals in constitutional
matters. When the appeal is not competent under Article-132, the Supreme Court will not hear it
even if the High court has granted the necessary certificate.
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The appellate who comes before the Supreme Court under this Article is not entitled to challenge
the propriety of the decision appealed against on a ground other than that on which the High
court granted the certificate or the Supreme Court gave the leave , except with the permission of
the Supreme Court. This means that the appellant should ordinarily confine himself to the
constitutional law point involved.3
In ELECTION COMMISSION V/S VENKATA RAO4
A question was raised as to whether an appeal would lie to Supreme Court from a decision of
single judge. The Supreme Court answered the question in affirmation. but this can only be done
in very exceptional cases , where direct appeal to the Supreme Court is necessary and in view of
the great importance of the case an early decision is required in public interest.

4. CIVIL MATTERS
Under article 133 (1) , an appeal lies to the Supreme Court from any judgment ,decree or final
order in a civil proceeding of a High court if it certifies-

a. That the case involves a substantial question of law of general importance and

b. That in the opinion of a High court the said question needs to be decided by the Supreme
Court.

An important question of law can arise in any case what ever the value of the subject
matter involved.

Now , an appeal may go to the Supreme Court in any case involving an important
question of law even though the value of the sub- matter involved may not br large.

No appeal in a civil matter to the Supreme Court as a matter of right. An appeal can lie only on a
certificate of the High court which is issued when the above 2 condition are satisfied.

The proper test to determine whether a question of law is substantial is whether it is of general
public importance or whether it directly and substantially affects the rights of the parties.

3
Bombay v/s Jagmohandas , AIR 1966 SC 1418.
4
AIR 1953 SC 210 at P. 212.
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A question of law which is fairly arguable, or when there is room for difference of opinion on it,
or when the court thinks it necessary to deal with that question at some length and discuss
alternative views would be a substantial question of law.

The Supreme Court has emphasized that for grant of the certificate the question , howsoever
important and substantial should also be of such pervasive import and deep significance that in
the High court judgment it imperatively needs to be settled at the national level by the High court
, otherwise the court will be flooded with cases of lesser magnitude.

When the High court has given such a certificate the appeal before the Supreme Court is not
limited only to the specific question of law but the entire appeal will be before the court.

In appeal to the Supreme Court Under Article 133 , question of constitutional law may also be
raised. No appeal lies to the Supreme Court under Article 133 from the decision of a single judge
of the High court, but parliament has power to provide otherwise.

Civil proceedings’-

The expression civil proceeding means proceedings in which a party asserts the existence of a
civil right.

A civil proceeding is one in which a person seeks to remedy by an appropriate process the
alleged infringement of his civil right against another person or the state and which , if the claim
is proved , would result in the declaration , express or implied of the right claimed and relief ,
such as payment of debt, damages , compensation, etc.

Under Article 133 the Supreme Court does not interfere with concurrent findings of fact by the
trial court and the High court unless it is shown that important and relevant evidence has been
overlooked or unless it is fully unsupported by evidence on record. It is left to the judicial
discretion of the court as to when it will interfere in the concurrent findings of fact of trial court
and High court. In appeal under Article 133 the appellant cannot be allowed to raise new grounds
not raised before the lower court
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5. APPLEAL IN CRIMINAL CASES ARTICLE 134.

According to article 134 an appeal lies to the supreme court from any judgment, final order or
sentence in a criminal proceeding of a high court in the following 2 ways.

a. Without a certificate of high court.

b. With a certificate of the high court.

A. Without a certificate art-134 (a) (b) :

An appeal lies to the supreme court without the certificate of the High court if the High
court -

a. Has on appeal reversed an order of acquittal of an accused person and sentenced him to
death.

b. Has withdrawn for trial before itself any case from any court subordinate to its authority and
has in such trial convicted the accused person and sentenced him to death.

But if the High court has reversed the order of conviction and has ordered the acquittal of
an accused, no appeal would lie to the supreme court.

B. With a certificate Article 134 (c)

Under clause ( c) an appeal lies to the supreme court if the High court certifies under Article 134-
A that it is a fit case for appeal to the supreme court.

The power of the High court to grant fitness certificate in the criminal cases is a discretionary
power but the discretion is a judicial one and must be judicially exercised along with the
well-established lines which govern these matters.

The Supreme Court has laid down entire guiding principles for the high court to follow in
granting certificate.
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The high court should grant certificate only where there has been exceptional circumstances. Eg.
Where substantial and grave injustice has been done.

Thus a certificate cannot be granted by the high court on mere question of fact.

In State of U. P V/s Raj Nath

The High court acquitted the accused in appeal solely on the ground that it regarded the
testimony of eye-witness to be baseless. It was held that the order of acquittal had resulted in the
manifest miscarriage of justice because the High court did not make an attempt to evaluate the
evidence of eye-witness properly.

Accordingly , the order of the High court was set-aside and it was directed to dispose of appeal a
fresh after evaluating the evidence.

Parliament is empowered under Article 134(2) to extend the appellate jurisdiction of the
supreme court in criminal matters.

Certificate for Appeal to Supreme court - 134(A)

The constitution 44th amendment has amended Art-132.133 and 135 And inserted a new Article-
Article134-A for regulating the grant of the certificate for appeal to the supreme court by the
high court.

The object of this new provision is to avoid delay in cases going to the supreme Court in appeal
from the judgment , decree, final order or sentence of the High court

Art-134-A is as follows-

“Every High court passing or making a judgment , decree, final order of sentence , referred to in
clause (i) of Article 132 or 134.”

a. May , if it deems fit so to do so ,own motion and

b. Shall if an oral application is made , by or on behalf of the party aggrieved, immediately

after the passing or making of such judgment, Decree, final order or sentence,
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Determine as soon as may be after such passing or making, the question whether certificate
of the nature referred to in clause(i) of Article 132, 133 or sub clause ( c) of clause (i) of
Article 134 , may be given in respect of that case. Thus under the new Article 134 –A it is
obligatory on the High court to consider the question of granting certificate immediately
on the delivery of the judgment , decree, final order, or sentence concerned either on oral
application by the party aggrieved, or ,if it deems fit to do so , on its own motion.

Power of the supreme court to withdraw and transfer cases article 139- A

Article 139 –A (i) provides that if an on application made by the Attorney general of India or
by a party or on its own motion the supreme court is satisfied that cases involving the
same or substantially the same question of law are pending before the supreme court and
one or more High court or before two or more High court and that such question are
substantially question of general importance it may withdrawn them and dispose them itself.

IN A R. Antulay V/s R.s Nayak5

It has been held that the supreme court has no power under Article -139 A to withdraw a case
from a special judge and transfer it to High Court.

In Swaranjitkaur V/s Swaransinghsohi6

The wife of the petitioner sought the transfer of a divorce petition from Delhi District judge to
District judge Indore. The petitioner is dependent on her parents. She has two children .it is
difficult to defend the case by travelling to Delhi. The court allowed her transfer petitioner from
District judge, Delhi to District judge at Indore.

In L.T Venkat v/s Union of India7

The two writ petitions were filed before the supreme Court for transfer of three writ petition filed

in the High Court of Madras by the convicts found guilty in Rajiv Gandhi assassination case after

rejection of their merly petition by the president of India. It was averred that the long delay in the
decision of mercy petition by the president would entitled the convict to seek commutation of
5
1988 2 scc 602
6
AIR 2009 SC 12
7
AIR 2012 SC 2503
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death sentence. An identical question was pending before the Madras High Court to itself as the
matter involved was a substantial question of general importance and the decision was likely to
affect a large number of persons convicted by the competent courts.

6.APPEAL BY SPEC IAL LEAVE-ARTICLE 136

Under 136 the Supreme Court is authorised to grant in its discretion special leave to appeal from

The two writ petitions were filed before the supreme Court for transfer of three writ petition filed
in the High Court of Madras by the convicts found guilty in Rajiv Gandhi assassination case after
rejection of their merly petition by the president of India. It was averred that the long delay in the
decision of mercy petition by the president would entitled the convict to seek commutation of
death sentence. An identical question was pending before the Madras High Court to itself as the
matter involved was a substantial question of general importance and the decision was likely to
affect a large number of persons convicted by the competent courts.

a. Any judgement , decree determination sentence or order

b. In any case or matter

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c. Passed or made by any court or tribunal in the territory of India.

The only exception to this power of the Supreme Court is with regard to any judgment etc. of
any court or tribunal constituted by or under any law relating to the Armed forces. This Article
vests wide power in the Supreme Court, the power given under this Article is in the nature of a
special residuary power which are exercisable outside the purview of ordinary law. Article 132
to 135 deal with ordinary appeals to the Supreme Court in cases in cases where the needs of
justice demand interference by the highest Court off the land

POWER TO GRANT SPECIAL LEAVE TO APPEAL TO BE EXERCISED IN

EXCEPTIONAL CASES-

From the above , it is clear that Supreme Court is vested with very wide discretionary power.

IN D. C.Mills v/sCommissioner ofIincome Tax, W. B 8

The court held that it being an exceptional and overriding power it has to be exercised sparingly
and with caution and only in special extra ordinary situations. Beyond that it is not possible to
fetter the exercise of this power by any set formula or rule.

6.2 CONCURRENT FINDINGS OF THE TRIAL COURT AND THE HIGH COURT.

The court held that it being an exceptional and overriding power it has to be exercised sparingly
and with caution and only in special extra ordinary situations. Beyond that it is not possible to
fetter the exercise of this power by any set formula or rule.

Normally the Supreme Court does not interfere with concurrent findings of the trial court and the
high court unless there is sufficient ground to do so.

But that cannot mean that injustice must be perpetuated because it has been done two or three in
a case.

IN CRIMINAL CASES

The power of the Supreme Court under Article 136 has more frequently been invoked in
criminal appeals. In criminal cases the court will not grant special leave to appeal unless it is

8
AIR 1955 SC SS
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shown that special and exceptional circumstances exist, or it is established that grave injustice
Has been done and that the case in question is sufficiently important to warrant a review of the
decision by the Supreme Court.

In Haripada Dey V/S State Of West Bengal9

The Supreme Court held that it will grant special leave only if there has been gross miscarriage
of justice or departure from legal procedure such as which vitiates the whole trial or if the
finding of fact were such as shocking to the judicial conscience of the court.

Delhi Judicial Service Assn V/S State Of Gujarat 10

The Supreme Court has held that under article 136 the Supreme Court has wide power to
interfere and correct the judgement and orders passed by any court or tribunal in the country. The
Supreme Court has supervisory jurisdiction over all court of India.

6.3 CONCURRENT FINDING OF FACT-

An appeal under article, the supreme court does not interfere with the concurrent findings of
fact unless it is established -

1. That the finding is bas

2. That the finding is perverse , it being such as no reasonable person could arrive at even if the
evidence was taken at its face value.

3. The findings is based and built on inadmissible evidence which evidence , executed from
vision would negate the prosecution case or substantially discredit or impair it or

4. Some vital piece of evidence which would filt the balance in favour of the convict has been
overlooked , disregarded or wrongly discarded.

9
AIR 1956 SC 757
10
1991 4SCC 406
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In Radhakrishna Dash V/S Administrative Tribunal11

The appellant were found guilty of negligence in verifying the stock wheat with agent under the
state government order. A departmental inquiry was entrusted to the administrative tribunal. On
the basis of evidence the tribunal came to the conclusion that the appellant had acted negligently
and recommended their discharge from service. Their writ petition were dismissed by the high
court .the Supreme Court held that it would not be proper for it to interfere with the concurrent
findings of fact about the guilt of the appellants as it was not a case of total want of evidence.

PROVIDE PARTY CAN FILE APPEAL UNDER ARTICLE -136 CHALLENGING

ACQUITTAL:

In A Landmark Judgment of Ramakant Ravi V/S Madan Rai 12

The Supreme Court held that where an accused is acquitted by the high court and no appeal
against the acquittal is filed by the state a private party can file appeal under article 136 against
the acquittal order of the high court.

6.4 TRIBUNALS

Under Article 136 the power of the Supreme Court to grant special leave to appeal is not

confined to orders or determination of a court of law , but includes tribunals also. Thus a tribunal

is a body of authority although not a court having all the attribute of a court which is vested with

judicial power to adjudicate on question of law or fact affecting the rights to citizens in a judicial

manner. However it does not include a tribunal which have purely administrative or executive

functions or a tribunal having only legislative functions without any quasi judicial functions.

Judicial tribunal, income tax tribunals., labour appellate tribunals, election commission railway

rate tribunals, etc. are few example of such tribunals, though not a court of law in the strict sense

11
q 1988 2 scc 229
12
air 2004 sc 77
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are invested with certain functions of justice. The Supreme Court held that where an accused is

acquitted by the high court and no appeal against the acquittal is filed by the state a private party
can file appeal under article 136 against the acquittal order of the high court.

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In Clerks Of Calcutta Tramways V/S Calcutta Tramways Co. Ltd I t was held that the
Supreme Court can normally interfere with the decisions arrived at by these tribunals on the
following grounds where-

1. The tribunal acts in excess of the jurisdiction conferred upon it under the statue or regulating it
or where it ostensibly fails to exercise a patent jurisdiction.

2. There is an apparent error on the face of the decision .

3. The awards are made in violation of principles of natural justice to parties.

4. The tribunal has erroneously applied well accepted principle of jurisprudence.

CONCLUSION

Appellate jurisdiction is different from the concept of original jurisdiction.Appellate jurisdiction is

the power of a court to review decision and change. It review the case for error.Appellate trail is
based on simple argument of lawyers. No testimony or witnesses.

BIBLIOGRAPHY

2. DURGA DAS BASU

“INTRODUCTION TO THE CONSTITUTION

OF INDIA”
13
AIR 1957 SC 78
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18th EDITION

3. M.P. JAIN

INDIAN CONSTITUTION LAW.

4th EDITIONREPRINT 2002