Difference Between Special Leave Petition and Appeal

Introduction

The Supreme Court of India has been conferred with various kinds of Jurisdiction. The most widely applied jurisdictions being Original as well as Appellate Jurisdiction. The Supreme Court’s Original jurisdiction lies in disputes between the Government of India and one or more than one State; or between the Government of India and any State/s on one side and one or more than one States on the other; or even amongst two or more States. Such a dispute may be regarding the existence or extent of a legal right which may be depend upon a question of fact or law involving the dispute at hand. Further, the Supreme Court is also conferred with Appellate Jurisdiction. Within its appellate jurisdiction lies the Special leave to Appeal that secures a different position from the rest. The Special Leave Petition is quite unique and is discussed under Article 136 of the Constitution of India.

Meaning of Special Leave Petition

Section 136 of the Indian Constitution elucidates on the Special Leave to Appeal by the Supreme Court. Article 136 (1) states that “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.” Further, Article 136 (2) states “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.”

As per Article 136, Appeal lies only against adjudication by a court or tribunal. Hence, it becomes essential to study what would constitute a tribunal as per Article 136 of the Indian Constitution. In the case of Bharat Bank Ltd. v. Employees of Bharat Bank Ltd., the Court held that for a tribunal to come within the meaning of tribunal under this Article, its main functions and how it proceeds to discharge those functions must be taken into account. The tribunal must perform some kind of judicial function and partake to some extent of the character of a Court in order to ensure that an appeal lies to the Supreme Court under this Article.

The power of the Court under the aforementioned Article is like a residuary power that is conferred to the Supreme Court. It provides a unique power to grant special leave to appeal against any judgment or order or decree given by any Indian tribunal or court. It is not exactly an appeal, but a petition for appeal. If the court deems it fit, it may grant the petition to be heard. Once the permission is given, it can be converted into an appeal. Article 136 (2) is an exception, therefore, courts or tribunals related to the Armed forces are strictly kept out of the purview of Special Leave Petition.

Prerequisites of Article 136

Article 136 is invoked in cases of gross injustice or in case of question of law. This must not be considered as a right, but a privilege.  Just because there are errors of fact, mis-appreciation of evidence, etc it would not become a ground of appeal before the Supreme Court. The Supreme Court concerns itself with the question of law, its application, interpretation of the law as per the settled principles of law. Orders or rulings that are strictly administrative or executive cannot be a matter of the appeal, the decree, judgement or order must be characterized by a judicial administration. Further, while applying for Special Leave Petition, it must be determined that the authority who gave the decree, judgement or order comes within the definition or court or tribunal.

In the case of Pritam Singh v. The State[i], the Court was of the opinion that according to this Article, it could grant special leave in civil, criminal and income tax cases along with cases that come up before various tribunals and other cases of different nature. Special Leave Petition can also be given against interlocutory orders.

What must the Special Leave Petition include?

Firstly, all the facts that are necessary and significant to the appeal must be stated. It must be signed by an Advocate on Record. A statement stating that the petitioner has refrained themselves from filing any other petition in the High Court must also be included. It must be followed by certified copy of judgment appealed against along with verification of the same by providing an affidavit by the petitioner. All other documents that were a part of the previous pleading in the lower court must also be included.

Power of the Supreme Court in Special Leave Petition

The power of the Supreme Court under Article 136 is discretionary. It is necessary to note that it does not provide for a “right to appeal”. It provides for a right to apply for special leave to appeal. Initially, while hearing the Special Leave Petition, the Supreme Court will decide if it must be granted. In the initial stage the court’s appellate jurisdiction cannot be said to be invoked, only if the leave to appeal is granted by the court, it’s appellate jurisdiction would be invoked.

In Pritam Singh’s case, the Supreme Court opined that the power conferred upon the Court under the power under this section must be used sparingly and the special leave must be granted only in exceptional and special circumstances where there is a grave injustice and the case displays significant reasons to grant appeal. Therefore, the discretion of granting Special Leave to Appeal vests with the Court.

The court in Dhakeswari Cotton Mills Ltd v. Commissioner of Income Tax, West Bengal[ii], discussed about the limitations on the discretionary power of the Court. It was observed that it would be impossible to define the limitations on the exercise of the discretionary jurisdiction of the Court as given in Article 136. The court considered these limitations to be of implicit nature. But the court also said that such power must be exercised with caution and in extraordinary situations.

Scope of Article 136

The scope of Article 136 can be understood with the help of Bihar Legal Support Society v. Chief Justice of India[iii]. In this case, the Court emphasized on the fact that the Supreme Court was created as an Apex Court for laying down the law for the nation, it was also conferred with extraordinary jurisdiction in order to grant special leave under Article 136 of the Indian Constitution. This is to enable it to interfere in cases where it found the law to be incorrectly enunciated by the lower courts or tribunals, hence making it necessary to pronounce the correct law. It was further said that such an extra ordinary jurisdiction could be availed for correcting exceptional cases of miscarriage of justice. Hence, it must be ensured that power or jurisdiction is not be applied in every single case.

In case a substantial question of law has arisen and may determine the dispute between the parties and may act as a precedent for similar cases, then the Court may consider entertaining an appeal against a decree passed in second appeal. This was stated in the case of Om Prakash v. Lauti Ram.[iv] Such question of law must be of public importance.

Difference between Special Leave Petition and Appeal

As discussed before, the jurisdiction conferred upon the Supreme Court and the power vested in it by Article 136 is of extraordinary nature. In various cases it has been established that such power must be used sparingly. It must only be exercised in extraordinary and exceptional circumstances where a question of law of general public importance has been raised.

A very significant point of difference between Special Leave Petition and Appeal is that Article 136 is applicable to final as well as interlocutory orders. Another important point of difference between Special Leave Petition and Appeal is that Article 132, Article 133 and Article 134 specifically deal with the appeal from criminal proceeding, judgement, order, etc. (subject to certain conditions as laid down in the clauses of the respective Articles) from a High Court. On the other hand, Special leave to Appeal can be sought for an order, judgement, decree against order of a tribunal or any other lower court and not specifically the Higher Court.

A Special Leave to Appeal is not an appeal in the initial stage. Unless and until the Supreme Court grants the leave to Appeal, the Appellate jurisdiction of the Apex Court would not be invoked. It is also pertinent to note that a Special Leave Petition can be filed when a High Court refuses to grant the certificate of fitness for appeal to the Supreme Court.

In the case of N. Suriyakala v. A. Mohandoss & Ors[v], the Apex court had made an observation regarding the scope of Article 136 and stated that it does not possess a regular kind of appeal. It is essential to lay stress upon the power conferred in the Supreme Court to understand the real difference between Special Leave Petition and appeal under Article 136.

The power vested within the courts may not be exercised in any ordinary circumstance. Instead, due care must be taken to ensure that such a power is used only in special or extraordinary circumstances where a question of law of general public importance has arose. If such a power was to be applied in every single case there would barely lie any difference between an special leave petition and appeal that is sought under Article 136. Such an opinion has been established by the courts in several judgements.

In Pritam Singh’s case, the court was of the opinion that such discretionary power of the Apex Court must not be exercised sparingly and the court must grant leave to appeal only when exceptional circumstances exist. In the case of Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai[vi], the court laid stressed upon this overriding and exceptional power of the Supreme Court under this Article and stated that it must be used sparingly where there exists an exceptional case with special circumstances.

Conclusion

So far, it has been clearly established that an appeal under this Article is not right and the power of the Supreme Court is discretionary. By providing the Supreme Court of India with residuary power of such nature, it can be ensured that the Apex Court may use this power to administer justice in the right way. Although, this power cannot be used mindlessly, that is to say that the court has the power to refuse to grant leave to appeal, the power vested with the Apex Court in the case of a Special Leave petition possesses a distinguishable factor from other forms of appeal. Moreover, its discretionary power is what makes it unique or as the name suggests ‘special’.

[i] Pritam Singh v. The State, 1950 AIR 169

[ii] Dhakeswari Cotton Mills Ltd v. Commissioner of Income Tax, West Bengal, (1955) 1 SCR 941

[iii] Bihar Legal Support Society v. Chief Justice of India, 1978 AIR 38

[iv] Om Prakash v. Lauti Ram, (1971) 3 SCC 868

[v] N. Suriyakala v. A. Mohandoss & Ors, (2007) 9 SCC 196

[vi] Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, AIR 2004 SC 1815

Also Read – Advisory Jurisdiction of Supreme Court

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Aayushi Mittra

Aayushi Mittra is a Fourth Year Law Student pursuing 5 Years BLS LLB at SVKM's Pravin Gandhi College of Law. Securing AIR 18 in CS Foundation exams, she wishes to not restrict herself to the ambit of company law but also explore various other fields of law like IPR, Cyber Law, Real Estate, Tech Law and Sports Law. Apart from academics, she immensely enjoys participating in moots, MUNs and article writing competitions.

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