Constitutional law


To understand the applicability of the Constitutional Provision for grant of special leave to appeal by the Supreme Court, it is necessary to understand the constitutional provisions for appeal to the Supreme Court. It further becomes important to realize what cases A 136 is meant for and to study how it has been abused to try and formulate check gate measures against the over-flooding of the Supreme Court with special leave petitions.

Ambit Of A 136 In Relation To A 132-134

Article 136 (1) deals with special leave to appeal by the Supreme Court. A prima facie reading of the provision of the Constitution suggests thus. The Supreme Court may grant a special leave to a party to appeal to it. The appeal may be from any judgment, decree, determination, sentence or order. It may pertain to any cause or matter. Such judgment, decree, determination, sentence or order must have been made by any court or tribunal in the territory of India. Therefore, special leave can even be granted against the decisions of the lower courts such as the magistrates. A third party may also appeal if it is aggrieved by a decision but such an appeal will only be entertained if the court is convinced that public interest justifies the appeal and that the state has refrained from petitioning for special leave for reasons which do not bear on the public interest but are prompted by private influence, want of bona fides and other extraneous considerations. Such leave to appeal shall be granted by the Supreme Court in the exercise of its discretion. However, in Jaswant Sugar Mills Ltd. v. Lakshmi Chand the SC has held that administrative or executive direction is not the subject matter of appeal under A 136. Moreover, under this Article, the court is not occupied with formal rules but rather only with questions of miscarriage of justice.

A 136 (2) is a non-obstante clause that excludes the operation of A 136 from applicability to any judgment, determination, sentence or order. This is when such any judgment, determination, sentence or order has been passed or made by any court or tribunal that has been constituted by or under any law relating to the Armed Forces. Therefore we may come to understand that there cannot be appeal to special leave from military courts and tribunals.

Moreover, the Privy Council and later the Apex Court have laid down guidelines over the course of cases defining the limits within which it would interfere with justice dispensed in the subordinate courts. Proceedings would not be reviewed unless a disregard of the forms of legal process or grave and substantial injustice or an apparent departure from the requirements of justice are shown to have taken place. Despite this, an application for special leave under A 136 cannot be equated with the ordinary remedy of appeal as such an appeal does not stem from right but rather from the discretion of the SC.

A 132 allows an appeal to the SC from a judgment of the High Court from any judgment, decree or final order if the High Court provides a certification for the same if the case involves questions of law of Constitutional importance. A 133 allows appeals from any judgment, decree or final order in civil proceedings subject to the provisions of the article. Similarly A 134 allows appeals from any judgment, decree or final order in criminal proceedings subject to the provisions of the article.

These articles subject to A 134 A seem to allow litigants an appeal to the Supreme Court as a matter of right in certain cases. Therefore, the words “in its discretion” in A 136 must be taken to imply that a special leave to appeal is NOT a right but a privilege granted by the Supreme Court in the exercise of it's discretion in certain cases. However, an application for special leave to appeal by the Supreme Court may be filed as a matter of right.

Analysis Of A 132-134 Read In Light Of A 134 A

Even though A 132-134 allow an appeal to the Supreme Court from the High Courts as a matter of right, there are inherent limitations in the articles themselves apart from the common conditionality of conforming with the provisions of A 134 A, which restrict appeals in all cases dealt with or decided by the High Courts to maintain the dignity of the Supreme Court and shield it from becoming merely the highest appellate court of the country.

A 132 deals with appeals from the High Court in certain cases. It allows an appeal from any proceeding in any High Court provided that the High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution.

A 132 deals with appeals from the High Court in civil cases. It allows an appeal from civil proceeding in any High Court provided that the High Court certifies:

  1. that the case involves a substantial question of law of general importance; and

  2. that in the opinion of the High Court the said question needs to be decided by the Supreme Court.

So it is not enough that the case be concerned with a question of law of general importance but also that the High Court be of the opinion that the question in consideration be decided by the Supreme Court.

A 133 (2) allows a party appealing under the article to also argue a substantial question of law as to the interpretation of this Constitution having been wrongly decided notwithstanding the provisions of A 132. The final limitation is that no appeal shall lie to the Supreme Court in the absence of a certificate unless Parliament passes a law in that regard.

In criminal cases, under A 134, an appeal lies to the Supreme Court if the High Court:

  1. has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or

  2. 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; or

  3. certified that the case is a fit one for appeal to the Supreme Court.

An appeal may also lie if Parliament has by law conferred on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law.

A 134 A deals with the certificate of appeal. The High Court may give a certificate of appeal on it's own motion or determine if such a certificate need be granted on an oral application being made to it by or on behalf of the aggrieved party immediately after the passing or making of such judgment, decree, final order or sentence. Even the certificate of appeal is at the discretionary judgment of the High Courts. Therefore it seems that under the constitutional scheme, the last court in the country in ordinary cases was meant to be the High Court. In the vast majority of cases the High Courts must become final even if they are wrong.

The Situation Regarding Special Leave Petitions

In Mathai @ Joby v. George, the court discussed and relied on Senior Advocate Mr. K. K. Venugopal's R.K. Jain Memorial Lecture delivered on 30/01/2010 and quoted a few statistics reproduced herein.

In the year 1997 there were only 19,000 pending cases in the Supreme Court. Now, there are over 55,000 pending cases. In a few years time the pendency will cross one hundred thousand cases. In 2009 almost 70,000 cases were filed in the Supreme Court of which an overwhelming number were Special Leave Petitions under Article 136. Each of the 13 Divisions Benches have to dispose off about 60 cases in a day. In matters involving very heavy stakes, 4-5 Senior Advocates on either side would be standing up at the same time and addressing the court, sometimes at the highest pitch possible. The U.S. Supreme Court hears only about 100 to 120 cases every year and the Canadian Supreme Court hears only 60 cases per year.

Paul Freund setting out the opinion of Mr. Justice Brandeis', Judge, U.S. Supreme Court and Justice K.K. Mathew, Judge, Indian Supreme Court referring to the opinion of Mr. Justice Frankfurter, Judge, U.S. Supreme Court, have both emphasized that the function of the Supreme Court is to expound and stabilize principles of law, to pass upon constitutional and other important questions of law for the public benefit, the consideration of cases whose decision involved principles, the application of which were of wide public or governmental interest and which ought to be authoritatively declared by the final court and to preserve uniformity of decision among the intermediate courts of appeal. It should only consider questions on which lower courts are in conflict or those of general importance to the law. They should not be consumed by matters of less concern merely because the litigant wants to have the court of last resort pass upon his right.

According to Frankfurter J. adequate study, reflection and discussion on the part of judges is necessary for that fruitful interchange of minds which is indispensable to thoughtful, unhurried decision making and its formulation in learned and impressive opinions. This has become a nearly impossibility in the SC in the current state of things.

The case has primarily dealt with the issue of the abuse of the Constitutional provision of filing SLPs. Now-a-days all kinds of special leave petitions are being filed in the Supreme Court against every kind of order. For instance, if in a suit the trial court allows an amendment application, the matter is often contested right up to the SC. Similarly, if the delay in filing an application or appeal is condoned by the Trial Court or the appellate court, the matter is fought up to the SC. Consequently, the arrears in the SC are mounting and this Court has practically been converted into an ordinary appellate Court. This was never the intention of Article 136 of the Constitution.

In Mathai @ Joby v. George the SLP has been filed because the trial court denied a second opinion on the forensic tests on a will. The case referred to a plethora of cases to forward the view that such SLPs should not be entertained by the court or that not all SLPs for any reason and cause should be allowed. It forwarded the following views: in N. Suriyakala Vs. A. Mohandoss and Others, it was held that Article 136 of the Constitution is not a regular forum of appeal. It is a residual provision which enables the Supreme Court to interfere with the judgment or order of any court or tribunal in India in its discretion. Prof. M. P. Singh also states that it is in the nature of a residuary or reserve power. Therefore it is to be used sparingly, with caution and discretion.

The court also held citing M/s. Bengal Chemical & Pharmaceutical Works Ltd. vs. Their Employees, Kunhayammed & Ors. Vs. State of Kerala & Anr. and State of Bombay Vs. Rusy Mistry that the words “in its discretion” clearly indicate that A 136 does not confer a right of appeal but merely empowers the SC to exercise it's discretion to interfere in exceptional cases. In fact, to emphasize on the discretionary nature of the provision, the bench cited Municipal Board, Pratabgarh & Anr. Vs. Mahendra Singh Chawla & Ors. and Chandra Singh Vs. State of Rajasthan where the SC has held that it was not bound to set aside an order even if it was not in conformity with law, since the power under Article 136 was discretionary.

In Ram Saran Das and Bros. v. Commercial Tax Officer, Calcutta & Ors. and Kunhayammed v. State of Kerala the SC held that the power under A 136 has to be exercised sparingly and only in exceptional cases. In Tirupati Balaji Developers Pvt. Ltd. Vs. State of Bihar, also Narpat Singh Vs. Jaipur Development Authority, the court went further and observed that A 136 is an extraordinary jurisdiction vested by the Constitution in the SC. It should be exercised with extraordinary care and caution. No right of appeal is conferred on any party and a vast discretion vests in the SC which is plenary, and this overriding power is to be exercised only when special circumstances are shown to exist or when a question of law of general public importance arises or a decision sought to be impugned before the Supreme Court shocks the conscience. In the same case the SC observed that when no law confers a statutory right to appeal on a party, Article 136 cannot be read to spell out such a right. This discretionary power vested in the Court continues to remain with the Court even at the stage when the appeal comes up for hearing till the appeal is disposed off.

The bench stated that in Pritam Singh v. The State after laying down the above discussed opinion, the SC also observed that as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters that come up before it.

The Supreme Court is the Constitutional Court of the country. The plethora of SLPs filed are making a mockery of the Apex court of the country and turning it into a mere appellate court or a court of error or worse still, into a tribunal or dispute resolution forum. This was never the intention of the Constitutional provision. It therefore becomes necessary, as has been stated in the judgment, that a Constitution Bench of the SC lay down guidelines and rules under A 145 (3) of the Constitution as to what kind of cases should be entertained in special leave petitions.

Suggested Standards And Guidelines For The Entertaining Of SLPs

In Dakeshwari Cotton Mills v. C.I.T., W.B. the SC had declined to hamstring its unfettered discretionary power by laying down principles or rules for the admissibility of SLPs. The SC had described its power under A 136 thus: “[It is] an untrammeled 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”.

The SC does not interfere with the findings of fact of the High Courts unless the forms of legal process have been disregarded or the principles of natural justice have been violated or grave and substantial injustice has taken place; conferring with the practice of the Judicial Committee. There will be no review of evidence unless there is a basic error on the part of the High Court or the assessment is vitiated by an error of law or procedure or record, misreading of evidence, inconsistency with the evidence, or in such instances as where the ocular evidence is totally inconsistent with the medical evidence. The court shall also not enter upon a question of the credibility of evidence.

On a review of the purpose of the Constitutional provisions, the judgment, authorities on the Constitution and the current state of SLP filing, certain guidelines can be put forth for the uniformity and restriction of entertaining SLPs. Here are some guidelines that can be considered for proposal; most of which have been suggested by Senior Advocate Mr. K.K. Venugopal and approved by the bench:-

  1. All matters involving substantial questions of law relating to the interpretation of the Constitution of India.

  2. Substantial questions of law of general importance.

  3. All matters of national or public importance.

  4. Validity of laws, Central and State.

  5. After Kesavananda Bharati, the judicial review of Constitutional Amendments.

  6. To settle differences of opinion of important issues of law between High Courts.

  7. In cases where the Court deems it fit to take active interest and action to correct a grave injustice or to correct a judgment that shocks the public conscience to the core.


H.M. Seervai Constitutional Law of India Ed. 4th Vol. III (New Delhi, Universal Law Publishing Co. Pvt. Ltd, 2008)

Mathai @ Joby v. George delivered on March 19, SLP(c)7105/2010

M.P. Jain Indian Constitutional Law Ed. 5th pg. 227 (New Delhi, Wadhwa Nagpur, 2007)

M.P. Singh V. N. Shukla's Constitution of India Ed. 11th (Lucknow, Eastern Book Company, 2008)

Raju Ramchandran and Gaurav Agarwal B.R. Agarwala's Supreme Court Practice and Procedure Ed. 6th (Lucknow, Eastern Book Company, 2002)

The Constitution of India (As modified up to the 1st December, 2007)