Special Leave petition : The Hail Mary Of Indian Judiciary

Special Leave petition : The Hail Mary Of Indian Judiciary

Article 136(1) of the Indian Constitution reads:

Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, , determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.”

The fore mentioned article reaffirms what has always coursed through the veins of our democratic polity, i.e. pursuit of the highest ideals of Justice. Article 136 in the form of an enabling provision provides the power to the Supreme Court to grant special leave/permission to appeal,  even in cases where the lower courts has refused to grant the certificate of fitness for appeal . The said leave can be granted against wide array of pronouncement in any subject matter passed by any judicial or quasi-judicial body barring matters of the armed forces.

In layman’s terms  an SLP is just a petition filed for an appeal to be heard, if the Court in its discretion grants the ‘leave’ then the petition is converted in an appeal which will be heard by the SC and get decided on. However the grant of leave does not mean that the resultant appeal holds merit or is allowed.

The SC in kunhayammed & ors. vs state of kerala & anr  Held that the jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal. It was observed that once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of the Supreme Court are let open. The order impugned before the Supreme Court becomes an order appealed against. Whenever the Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with the Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.

Special Leave petition : The Hail Mary Of Indian Judiciary

Grant of a leave cannot be claimed as a matter of right, for that would simply derogate from the power of the lower courts to judge a case’s fitness to be appealed.  It is rather a matter of privilege which only the Supreme Court will grant to any individual if there exists an important constitutional or legal issue involved. Otherwise unscrupulous individuals would keep dragging decided matter to the highest courts delaying administration of Justice. Therefore, the Constitution itself provides for the special leave to be a matter of sole discretion of the Apex court.

Limitation on Exercise:  An SLP against any judgment of the High Court has to be filed within 90 days from the date of judgment. In case the order of the Court refuses to grant the certificate of fitness for appeal to Supreme Court it has to be filed within 60 Days. An aggrieved party can approach the Apex Court under Article 136 in case any constitutional or legal issue exists and which can be clarified by the Supreme Court of India.  This is in exercise of “residual power” of the SC.

The court has clarified in Pritam Singh v. The State that this wide discretionary residual power has to be exercised sparingly and only in exceptional and special cases where substantial and grave injustice has been committed.

Furthermore, the court in Mathai @ Joby v. George observed that Article 226 provides for a discretionary remedy and the Court is not bound to interfere via article 136 even if there is error of law or fact in the impugned order.

Conclusively, it can be said without doubt that SLP is a true incarnation of the outlook of our judicial system, it ensures that no aggrieved  suffers due to mal-administration of justice, like article 32 , article 136 throws open the doors of the highest court of the country to every aggrieved so as to make sure they can avail the benefits from the greatest judicial minds of the country, however simultaneously the ensuing decisions emanating from it make sure to make provision to ensure that only honest issues of importance reach inside the doors of the  Apex Court assigning  special leave as a judicial guardian of those doors. There by making sure that unnecessary and malafide don’t plague the Supreme Court. The SC via its decisions would certainly keeping defining the ever expanding scope of Special leave petitions making it one of the most intriguing area of legal study.


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