In India the apex and supreme radix of law is the Constitution of India. The judicial system acts as a medium to enforce the laws framed in the constitution and is considered as the preserver and protector of fundamental rights and constitution . The judiciary has the potential to pass laws that both the citizens and government need to abide with .There is a well-defined hierarchy of courts, which have different jurisdictions, rules and powers ,these respective elements are enshrined in the Constitution of India . the court chronology in India consist of Supreme Court, Highs Courts, District Courts or subordinate courts, small cause courts tribunals and constitutional courts. The supreme court is the apex court of India and has the highest and apex court in all of the appellate jurisdictions.
The way and functional hierarchy in which one has to address and follow the chronology of courts are mentioned under articles 132-134 of the Indian Constitution. Under Article 136 of the Constitution of India , the Supreme Court of India has the power to grant special leave, against any judgement /decision in any event, passed or in the territory of India, but the latter doesn’t include ‘Final order ‘Till date there is no universally accepted so called definition for the context of article 136 in constitutional law because the scope and extent of this article is very broad as it covers all tribunals , courts and hierarchies of courts that too of all matters be it civil , taxation or criminal matters , below are the provisions mentioned for its applicability and exercise.
1) Notwithstanding the provisions of this Chapter, the Supreme Court may, in its absolute discretion, grant special leave to appeal any decision, order, decision, sentence or order in any dispute or matter passed or brought by any court or tribunal in the territory of India.
(2) Nothing in clause ( 1) shall refer to decisions, decisions, sentences or orders passed or given by any court or tribunal under any law relating to the Armed Forces.
In Article 136 of Constitution of India the Supreme court is vested with residual and discretionary powers to allow a matter to be heard in a way of special or extraordinary appeal. It is imperative to throw light on the fact that at this level , the Supreme court will only analyse and conclude whether the rule of law was interpreted correctly or is the statute itself incorrect in the prevalent matter , but in none circumstances will revise the whole court proceedings as done before in the lower courts . “Clearly, the provision states that this potential is entrusted with the Honourable Supreme Court and is purely a voluntary decision, which means that if the court believes that the matter needs to be examined and heard, it will only be permitted as an appeal and in no circumstances the apex court is obligatory and bound to accept the petition” this is itself the reason why it is known as special leave petition and not as special leave appeal .When the petition demanding the award of special leave is rejected, the Supreme Court expresses its opinion that no case can be brought before the court for invoking the appealing jurisdiction. whatever the phraseology used in the order of dismissal, if it is a non-speaking order, which in simple language means, it does not offer reasons for dismissing the petition for special leave, it does not attract the doctrine .If the order denying special leave to appeal is the speaking order, then the order has two consequences. First, the statement of law contained in the order is the Supreme Court's declaration of law within the scope of Article 141, which will legally and compulsorily be binding on all courts and tribunals in India and certainly on the parties to it.
If leave to appeal is given, and the Supreme Court's appeal jurisdiction is invoked; the door to appeal arena entry is opened. The petitioner is allowed and the respondent may also be called upon to face him, although the court can, in an extraordinary situation, reject the appeal without notifying the respondent, despite having given leave to appeal.
The only major exception of tribunals that is not allowed to be entertained via the provision of article 136 is military of any tribunal functioning under armed forces.
The authority accorded by Art. 136(1) to the Supreme Court is in the form of residuary control. The power is plenary in the sense that there are no terms characterising the force in Art. 136. It is a sweeping power to meet the urgent demands of justice, exercisable beyond the purview of ordinary law. According to Art. 136, the Supreme Court described its power as 'an untrammelled reserve of power incapable of being limited to definitional boundaries’; the Supreme Court's authority was subject to only one restriction, which clearly stated- The judges wisdom and good sense of justice.
THE SCOPE AND JURISDICTION OF ARTICLE 136
Under this article, The supreme court is authorised in its choice to convert a special leave petition into an appeal it desires , by legal means , if it feels some grave injustice is done in the lower courts or if the interpretation of rule of law is done incorrectly in the lowers courts of the judiciary hierarchy except the military tribunals.
In regular proceedings, An appeal is only allowed to be filed when the final order of the respective matter is passed in the lower court. But in the scenario of special leave petition, it can be filed even if the previous suit has been on hold of an interlocutory order , which means even before the case is disposed clearly .
The unique element and power that distinguishes article 136 and gives the supreme court to treat grave injustice is that, it can entertain suit from any type of case, be it of civil, criminal, taxation or anything else in the context of law, as usually every court has limitations up to which amount, context and type of suits it shall entertain. It can even be applied and can reverse the verdict that was made by the magistrates court seeking article 136.
In case of Rajender Kumar jain vs. State of Rajasthan (1955) SCR (1) 941.
SPL No. 3115 of 1979, from the Judgment dated 21-9-1979 of the Chief Judicial Magistrate, Bhiwani in Case No. 1861 of 1978 was filed in the Supreme court , criminal appeal was filed directly in the supreme court after the decision of lower court .However it should be noted that the power to grant a special leave can’t be exercised in suits where ‘final order’ is passed by the High courts .
A fundamental rule of special leave petition is that the parties to the context can only request the revision of judgement , order , decree or determination already passed and generally can’t request for a fresh plea or argumentation on a new issue. But it was discovered that, A fresh plea may be entertained in cases of exceptional circumstances like for instance a plea that is barred by the constraint of limitation. Quite similar situations were seen in the case of Anil Jain vs. CIT & Another’s (2007) 294 ITR 435 (SC) that interruption by the Supreme Court is permissible in matters of taxation where the issue is primarily one of law because there has been a misunderstanding within different High Courts. The paramount aspect of the power of conferred by the Supreme Court pertaining to Article 136 and the constraints inherent in its exercise have been explored in Dhakeswari Cotton Mills Ltd. v. Income Tax Commissioner(1955) SCR (1) 941. CJ Mahajan, Mehar Chand in this case held that- It is not possible practically to define any specificity on the restrictions on the exercise of discretionary privilege bestowed on this Court by the constitutional provision laid down in Article 136 , The restraints, what they may be, are implicit in the essence and character of the authority itself.
DISTINGUISHING ARTICLE 32 AND ARTICLE 136 OF THE INDIAN CONSTITUTION
Article 32 is the right to protected under Part III of the constitution. This clause makes the Supreme Court a guarantor of the fundamental rights and a safeguards it. Article 32 (1) provides that if any fundamental rights guaranteed within Part III of the Constitution are violated, the individual shall have the right to appeal to the Supreme Court to enforce his fundamental rights.
Article 32(2) grants the Supreme Court the right to issue writs, directives or directives. It states that the Supreme Court can issue five types that consist of habeas corpus, mandamus, prohibition, quo-warranto, and certiorari writs to enforce any fundamental rights granted under Part III of the Constitution. The court's original authority is the Right to grant writs.
Whereas, in Special Leave to Appeal By, Supreme Court's discretion appeal may be allowed directly from any tribunal or court ,No rules are laid down regarding the incident in which Supreme Court may exercise its discretion. The Supreme Court of India utilizes its authority only in exceptional and unusual circumstances where legal issues demand serious response or where there has been an interrogation on public law .In both the articles mentioned, the Supreme court is the court in which matters are heard. The primary distinction between the two is that the article 32 can only be invoked when the fundamental rights of a citizen are violated .
The principle of Justice is constantly being threatened by the vice of inequality. Any kind of inequality would eventually amount to injustice. Though the Indian judiciary is very well designed and has respective courts and tribunals present for enforcement of justice and grievance redressals, still at times injustice is made to the parties due to the functional chronology and heap of cases pending in the country. Different courts have their different jurisdictions and at times a person’s whole life goes into the vicious circle of going through the chronology of courts ,procuring documents, large expenditure of advocacy fees but then too at times he/she is not awarded justice . There are cases wherein a party when wants to appeal in the Supreme court is denied of getting the certificate with consonance of rights mentioned under article 134, in these times special leave petition acts as the ‘lender to the last resort’ or the ultimate course available .
Special Leave Petition is a strong medium of ensuring maximum justice from the apex court in the country. However, SLP is a very fluid and dynamic approach, It is the last option for every party who wants to appeal be it from any jurisdiction or kind . Many of the cases are disposed just when the petitions are filed , which acts as a barrier for flooding of petty cases and strikes an equilibrium in the judiciary. Henceforth, it is suggested that the special leave petition should be encouraged in very exceptional cases of grave injustice.
If the Supreme Court entertains all and sundry kinds of cases, it will soon be overloaded with a big burden and will not be able to deal with important constitutional or law-related issues where significant injustice has been done, for which it was really intended under the Constitutional Scheme. Hence, the special leave petition should be encouraged in specific and exceptional cases where grave injustice is been done to the claimant in order to formulate speedy justice.
Submitted by :-
Symbiosis Law School, Pune
(BBA-LLB Hons.) 2nd Year.