Judiciary in India
The judiciary in India is a hierarchy of courts, which follows the common law system. The Constitution of India mentions a single and unified judiciary, which means that the courts at the lower levels are subordinate to the courts at the higher level. There are three levels, along with subsidiary parts, that compose the judiciary. The court at the topmost level is called the Supreme Court, or the Apex Court, and is the ultimate appellate court of the country. Below the Supreme Court are the High Courts, which are one for each state, except a few. The District Courts come below the High Courts, at the district level. Excluding this hierarchy, there are other categories of courts, such as Executive and Revenue Courts, and Rural Courts which are also known as Panchayats.
The judiciary in India enjoys independence from the Executive and the Legislature. It keeps the system of checks and balances running, and the appointments, roles, functions, and removals of judges of the three levels of courts are mentioned in the Constitution, and are to be carried out accordingly.
The Supreme Court of India
The Supreme Court is the highest court of appeal in India. It is the supreme judicial authority, with all other courts being subordinate to it. All decisions of the Supreme Court are binding on other courts, and the responsibility of interpreting the Constitution also rests with it. It has the power to strike down any law as being unconstitutional, and to uphold the fundamental rights of the citizens. Naturally, with such a vast ocean of powers, the Supreme Court entertains appeals on selective matters, in order to mitigate the multiplicity of cases. Thus, the Constitution of India specifically mentions the conditions as to when an appeal to the Supreme Court can lie.
The jurisdiction of the Supreme Court is divided into three types: original, appellate and advisory jurisdiction.
Original jurisdiction is covered under Article 131 of the Supreme Court, where it can hear matters directly brought to it, at first instance. These include disputes between the Centre and one or more States, or between two States, enforcement of Fundamental Rights etc.
Appellate jurisdiction is mentioned from Article 133 to 136, when appeals from orders of the High Courts are made to the Supreme Court. The SLP, or Special Leave Petition is also under the appellate jurisdiction of the Court.
The Supreme Court exercises advisory jurisdiction as per Article 143 when the President requires the opinion of the Supreme Court on any issue of law or fact.
The Supreme Court also possesses review jurisdiction, wherein it can review its own judgements based on certain but few grounds.
Article 136 of the Constitution of India
Also known as a residual power, the Supreme Court possesses the power to hear an appeal against a judgement from any court or any tribunal in the territory of the country, excluding military tribunals and court martials. This is a special permission given to an aggrieved party to file a petition against any judgement or order of a court or a tribunal. Originally, the whole expression of “special leave to appeal” was adopted from the Government of India Act, 1935, and since then it has been a point of debate, as it accords the widest possible jurisdiction upon the Supreme Court, at any stage of the proceeding.
Article 136 of the Constitution states that the Supreme Court has the discretion to grant a special leave to appeal against any judgement, order, decree, determination or sentence passed by any court or any tribunal within the territory of India.
Filing an SLP is not a right given to the citizens; rather, it is a privilege that exists based on the discretion of the Supreme Court. If the Court wishes, it can refuse to accept the said SLP, therefore making it a right only to apply for the SLP, its acceptance resting with the Court itself. As for its extensive power in the matter, a Constitution Bench of the Supreme Court, in Dhakeshwari Cotton Mills Ltd. v. Commissioner of Income Tax, West Bengal, stated that it is impossible to define the limitations of this power, and as a result, it has to be exercised sparingly and with due caution, only in extraordinary circumstances. However, it is also important that the Apex Court exercises its duty to oversee that no court of the country administers injustice, and if so happens, the Apex Court can be approached, because otherwise the purpose of this Article would be defeated. It is no use to limit the power and scope of the Article, but to use it with circumspection.
Grounds for Special Leave Petition
It is clear that Article 136 has a very wide scope, which leads to the conclusion that in order to file an SLP, there must exist certain reasonable grounds on the basis of which the Apex Court will accept the SLP. In Kapildeo Singh v. The King, the then Federal Court, taking into account the decisions of the Privy Council, observed the following points:
- In criminal cases, the leave to appeal would only be granted if there is a clear departure from justice.
- The criminal proceedings would be reviewed only when it is shown that the legal process has been disregarded in some way, or the principles of natural justice have been violated, or grave and substantial injustice has been done.
- A mere mistake on the part of the courts, such as in admitting improper evidence, would not amount to grave injustice. Even if a different view of evidence is concerned, it will be incorrect to interfere.
- As regards criminal matters brought to the Court through a special leave petition, the Court is not concerned with the formal rules, but if there has been miscarriage of justice.
- In a criminal trial, the Court will interfere only when there has been something so outrageous or shocking to disrupt the delivery of justice, or has not accorded the accused a fair trial and protection of law.
In Pritam Singh v. The State, the Supreme Court observed that the wide discretionary powers conferred upon it through Article 136 were to be exercised in exceptional cases only, and as far as possible a uniform standard should be laid down through which the Court can determine which cases to take up through special leave petitions. It further mentioned that as per Article 136, special leave could be granted in criminal matters, civil matters, matters of income tax, and those that came up before tribunals of various kinds, among others.
It is safe to say that an SLP will be maintained by the Supreme Court against a judgement or decree where gross injustice has been done. Also, where a judgement or order involves a substantial question of law, the Court will take it into account. The judgement or order against which the appeal is being made must not be of administrative or executive nature; it must have some character of judicial adjudication. Lastly, the judgment, decree, or order against which the appeal is being made must be from a body which comes under the definition of a court or tribunal within the territory of the country.
Procedure for Special Leave Petition (SLP)
A Special Leave Petition must contain all the facts upon which the Supreme Court is to decide, which revolve around the grounds on which an SLP can be filed. The said petition needs to be duly signed by an Advocate-on-Record, and the petitioner must include a statement within the SLP stating that no other petition has been filed in a High Court. The petition should also have a copy of the judgement against which the appeal is sought, along with affidavits and other relevant documents. Once the petition is filed, the Supreme Court will hear the aggrieved party and depending upon the merits of the case, will allow the opposite party to state their part in a counter affidavit. After the hearing, if the Court deems fit the case for further hearing, it will allow the same, otherwise it will reject the appeal. However, rejecting the appeal does not mean res judicata; the aggrieved party can still approach review jurisdiction.
In Kunhayammed v. State of Kerala, the issue was whether the jurisdiction under Article 136 also amounted to admitting the SLP and subsequently hearing it. It was held that the Court had a choice to admit the SLP based on its findings, and when it chooses to reject the SLP, the appellate jurisdiction of the Court is not exercised.
An SLP can be filed within 90 days of the judgement of the High Court, although this time frame is flexible as per the discretion of the SC. When a High Court refuses to grant a fitness certificate for appeal to the Supreme Court, the time frame is of 60 days from the order.
Overview of Special Leave Petition (SLP)
What is so special about Article 136, i.e. a Special Leave Petition is that it is very distinct from all the other kinds of appeals as mentioned under Article 131 to 135. Foremost, it is not confined only to orders of the High Courts, but is open to appeals from the lower or subordinate courts, as well as quasi-judicial bodies or tribunals. The fluidity of Article 136 allows an aggrieved party to file an SLP in between the proceedings, meaning that the order or decree against which an SLP is to be made need not be final in nature. The intention of Article 136 is to ensure that justice is administered absolutely and effectively.
A substantial question of law of general importance is one where the Constitution has been interpreted incorrectly. It is such a point of deep significance which needs to be settled by the highest Bench at the national level. When the Supreme Court has been considered the guardian of the Constitution, then disputes involving a substantial question of law general import must be well in the hands of the Apex Court.
As an instrument for dispensing justice, the provision of SLP is of much significance. It’s very flexible nature allows parties to approach the Supreme Court without any hinderance. However, a balance needs to be maintained between cases admitted and cases rejected, because the Indian judiciary is brimming with loads of pending cases, and bringing every other case to the Supreme Court will only add to the burden. It befalls upon the Supreme Court itself, to sort out relevant cases through special leave petitions and deliver landmark judgements that go on to become established precedents.
FAQs on Special Leave Petition
Article 136 of the Indian Constitution speaks about a special leave to appeal in the Supreme Court directly from any judgement, order, decree or sentence passed by any court or tribunal in India. It is special because it grants the Supreme Court a wide jurisdiction over matters of other courts, when brought before it through a Special Leave Petition (SLP).
Broadly speaking, there are two major grounds over which an SLP can be filed, and other minute formalities stem from these two grounds:
1) A substantial question of law must be involved in the appeal, which is brought before the Supreme Court, and the same is to be adjudicated by the Supreme Court
2) It is shown that gross injustice has been done in the judgement or order, which has violated the principles of natural justice and fair trial.
As an instrument for dispensing justice, the provision of SLP is of much significance. It’s very flexible nature allows parties to approach the Supreme Court without any hinderance. It is not confined only to orders of the High Courts, but is open to appeals from the lower or subordinate courts, as well as quasi-judicial bodies or tribunals. The fluidity of Article 136 allows an aggrieved party to file an SLP in between the proceedings, meaning that the order or decree against which an SLP is to be made need not be final in nature. The intention of Article 136 is to ensure that justice is administered absolutely and effectively.
 (1955) 1 SCR 941.
 Mathai v. George, (2016) 7 SCC 700.
 (1950) 52 BOMLR 512.
 AIR 1950 SC 169.
 Sanwat Singh v. State of Rajasthan, AIR 1961 SC 715; Ganga Kumar Srivastava v. State of Bihar, (2005) 6 SCC 217.
 AIR 2000 SC 2587.
 State Bank of India v. Sundara Money, (1976) 1 SCC 822.
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