Article 136 in the Constitution of India 1949

136. Special leave to appeal by the Supreme Court

(1) 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.
(2) 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.

Introduction

Articles 132 to 135 deal with ordinary appeals to the Supreme Court in cases
where the needs of justice demand interference by the highest court of the land.
Article 136 vests very wide powers in the Supreme Court. The power given under
this Article is in the nature of special residuary powers which are exercisable
outside the purview of ordinary law. Article 136 of the Indian Constitution deals
with a special jurisdiction which has been granted to the Supreme Court (the Apex
court in India). This article is worded in the widest possible terms.

This can be understood as a residuary power vested in the Supreme Court. Article
136 is a power to appeal in the apex court, which can be filed by any person
against any judgment or order of any Court or tribunal in the territory of India.

Special Leave Petition or SLP holds a prime place in the Indian judicial system. It
provides the aggrieved party a special permission to be heard in the Apex Court in
appeal against any judgment or order of any Court or Tribunal in the territory of
India.

Understanding Article 136

Under article 136 the Supreme Court is authorized to grant in its discretion special
leave to appeal from
(a) Any judgment, decree, determination, sentence or order,
(b) In any case or matter,
(c) Passed or made by any Court or Tribunal in the territory of India.
The only exception to this power of the Supreme Court is with regard to any
judgment, etc. of any court or tribunal constituted by or under any law relating to
the Armed Forces.

Notwithstanding the provisions for regular appeal in articles 132 to 134, 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, save Military Tribunals.

This is the power to grant special leave. The power of the court is discretionary in
nature. This discretionary power may be exercised by the court, where the very
essence of granting justice is violated, and the court below has done wrong to the
law and the parties. Since there is no said rule when can or cannot the power under
Article 136 can be invoked. Thus it becomes the discretionary power of the Apex
Court.

Jyotendar Singhji v. S.T. Tripathi (AIR 1993 SC 1991)

It has been held that a party cannot gain advantage by approaching the Supreme
Court directly under Article 136 instead of approaching the High Court under
Article 226. This is not a limitation inherent in Article 136, it is a limitation which
the Supreme Court imposes itself.

Special Leave Petition or SLP can be presented under following

circumstances

 SLP can be filed against any judgment or decree or order of any High Court
or tribunal in the territory of India.
 Or, SLP can be filed in case the High Court refuses to grant the certificate of
fitness for appeal to Supreme Court of India.

Time frame within which SLP can be filed

 SLP can be filed against any judgment of High Court within 90 days from
the date of judgment
 Or SLP can be filed within 60 days against the order of the High Court
refusing to grant the certificate of fitness for appeal to Supreme Court.

The Scope of Power Vested in Supreme Court under Article 136

The Supreme Court thus, can grant special leave to appeal from judgment, decree,
etc. of any Court or Tribunal, however, it cannot grant special leave to appeal from
judgment, determination, sentence or order passed by any Court or Tribunal
constituted by or under any law relating to the Armed Forces.

This power of the Supreme Court is its discretionary power. Article 136 does not
confer a right of appeal upon the party; it vests discretion in the Supreme Court to
grant special leave to appeal. This power is required to be exercised with great
care. This Article clothes the Supreme Court with discretion which is to be
exercised in an appropriate case for ends of justice.
Therefore there can be no hard and fast rule in the exercise of this jurisdiction.

Article 136 confers wide discretion upon the Supreme Court in granting special
leave to appeal but it is expected that this discretion would be exercised reasonably
and in exceptional cases only. It is to be exercised sparingly and with caution and
only in special and extraordinary situations.

Pritam Singh v. State (AIR 1950 SC 169)

Ordinarily the Supreme Court will not grant special leave to appeal, unless it is
shown that the exceptional and special circumstances exist, that substantial and
grave injustice has been done and that there is sufficient gravity to warrant a
review of the decision.
The Constitutional Bench observed that the Supreme Court is vested “wide
discretionary power” under this article and this power is required “to be exercised
sparingly and only in exceptional cases.”
The Court also observed that a more or less uniform standard should be adopted in
granting Special Leave in wide range of matters which can come up under this
Article.
The Court further observed that this Court should not grant special leave unless it
is shown that “exceptional and special circumstance exist” that “substantial and
grave injustice” has been done and the case in question presents features of
sufficient gravity to warrant a review of the decision appealed against.

Article 136 does not confer upon a litigant a right to appeal against any order or
judgment but vests the Supreme Court of India with a discretionary power to
interfere with the orders of the lower courts only in case of exceptional character
where gross injustice has been carried out.

The constitution of India vests “discretionary power” in the Supreme Court of

India. The Supreme Court of India may in its discretion be able to grant special
leave to appeal from any judgment or decree or order in any matter or cause made
or passed by any Court or tribunal in the territory of India. The supreme court of
India may also refuse to grant the special leave to appeal by exercising its
discretion.

An aggrieved party from the judgment or decree of High Court cannot claim
special leave to appeal as a right but it is a privilege which the Supreme Court is
vested with and this leave to appeal can be granted by it only.

An aggrieved party can approach the Apex court under article 136 in case of any
constitutional or legal issue exists and which can be clarified by the supreme court
of India. This can be heard as civil or criminal appeal as the case may be.

D.C. Mills v. Commissioner of Income-tax, W.B. (AIR 1955 SC 55)

In this case the Court held that “it being an exceptional and overriding power it has
to be exercised sparingly and with caution and only in special extraordinary
situations. Beyond that it is not possible to fetter the exercise of this power by any
set formula or rule”.

Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar (AIR 2004 SC 2351)
This Court observed that Article 136 is an “extraordinary jurisdiction” vested by
the Constitution in the Supreme Court with implicit trust and faith, and
extraordinary care and caution has to be observed in the exercise of this
jurisdiction. The Court further observed that Article 136 does not confer a right of
appeal on the party but vests a vast discretion in the Supreme Court meant to be
exercised on the consideration of justice, call of duty and eradicating injustice.

False and misleading statements

When special leave is obtained by making false and misleading statement of

material fact the Supreme Court will be justified in revoking the leave to appeal.
Likewise, where special leave petition is obtained by making false representation it
will be dismissed.
Similarly, where the petitioner was found guilty of suppression of material fact it
was held that his special leave petition was to be rejected. The petitioner must
come before the court with clean hands.
Tribunals

Under Article 136 the power of the Supreme Court to grant special leave to appeal
is not confined to orders or determination of a Court of law, but includes tribunals
also. Several tests have been laid down by the Supreme Court to determine
whether a particular body or authority is a tribunal within the ambit of Article 136.
The tests are not exhaustive in all cases. It is not necessary that all the tests laid
down maybe present in a given case while some tests may be present others may
be lacking. It is however, absolutely necessary that the authority in order to come
within the ambit of article 136 as tribunal must be constituted by the State and is
vested with some function of judicial powers of the state. This particular test must
be present while some of the other tests may or may not be present at the same
time.

Columbia Sportswear Company v. Director of Income Tax (AIR 2012 SC

3038)
The Court has held that the test for determining whether a body is a tribunal or not
is to find out whether it is vested with the judicial power of the State by any law to
pronounce upon rights and liabilities arising out of some special law.

A body to be a Tribunal for this purpose is required to be a quasi-judicial body

exercising some judicial functions. To be a Tribunal the body should be constituted
by the State and should be vested with a part of the judicial function of the State.
Thus Election Commission, Income Tax Appellate Tribunal, Labor Appellate
Tribunal, Industrial Tribunals, Railway Rates Tribunals etc. are the examples of
the Tribunals which are not Courts in the strict sense but they have been vested
with the judicial powers and functions and therefore they are included within the
meaning of the term “Tribunal” under Article 136.
Even the Government when it exercises the judicial powers under the statutes, is
treated as a Tribunal for the purpose of Article 136. Thus, before an appeal can be
entertained in the Supreme Court under Article 136, two conditions have to be
satisfied; the order impugned must be an order of a judicial or quasi-judicial
character and should not be purely an administrative or executive order and the
said order should have been passed either by a Court or a Tribunal in the territory
of India. However, a body which does not exercise judicial powers and functions
and exercises purely administrative or executive or legislative power and function
is not included within the meaning of the term “tribunal” under article 136.

A.P.H.L Conference, Shillong v. W.A. Sangama (AIR 1977 SC 2155)

It has been held that the Election Commission is a tribunal as it has been created
under the Constitution and invested under the law with not only administrative
powers but also with certain judicial power of the State however fractional it may
be. The Commission exclusively resolves disputes inter alia between rival parties
with regard to claim for being recognized political party for the purpose of the
electoral symbol. Thus the Commission fulfils the essential tests of a tribunal and
falls within the ambit of Article 136(1) of the Constitution.

Concurrent findings of the trial Court and High Court

Normally the Supreme Court does not interfere with the concurrent findings of the
trial court and the High Court unless there is sufficient ground to do so. But that
cannot mean that injustice must be perpetuated because it has been done two or
three times in a case. If the appellant proves that a concurrent decision of two or
more courts or tribunal is manifestly unjust, it will be the duty of the Supreme
Court to remedy the injustice.

In an appeal under Article 136, the Supreme Court does not allow the appellant to
raise new plea for the first time.

In criminal cases

The power of the Supreme Court under Article 136 has more frequently been
invoked in criminal appeals. In criminal cases, the Court will not grant special
leave to appeal unless it is shown that special and exceptional circumstances exist,
or it is established that grave injustice has been done and that the case in question
is sufficiently important to warrant a review of the decision by the Supreme Court.

Haripada Dey v. State of West Bengal (AIR 1956 SC 757)

The Supreme Court held that it will grant special leave only if there has been gross
miscarriage of justice or departure from legal procedure, such as, which vitiates the
whole trial or if the finding of fact were such as shocking to the judicial conscience
of the Court.

Article 136 merely confers discretionary power on the court to scrutinize and to go
into the evidence in special circumstances in order to see that substantial and grave
injustice has not been done. It does not confer a right of appeal on the party.
Delhi Judicial Service Assn. v. State of Gujarat ((1991) 4 SCC 406)
The Supreme Court has held that under article 136 the Supreme Court has wide
power to interfere and correct the judgment and orders passed by any court or
tribunal in the country. In addition to the appellate power, the court has special
residuary power to entertain appeal against any order of any court. The plenary
jurisdiction of the court to grant leave and hear appeals against courts or tribunals
confers power of judicial superintendence over all the courts and tribunals
including subordinate courts of Magistrate and District Judge. The Supreme Court
has therefore supervisory jurisdiction over all courts of India. Accordingly, the
Court punished the five police officials for committing contempt of the Chief
Judicial Magistrate Court of town Nadiad and also quashed the false criminal
proceedings against the Magistrate filed by the police.

Concurrent findings of fact

In an appeal under Article 136, the Supreme Court does not interfere with the
concurrent findings of fact unless it is established:
(1) That the finding is based on no evidence, or
(2) That the finding is perverse, it being such as no reasonable person could
arrive at even if the evidence was taken at its face value, or
(3) The finding is based and built on inadmissible evidence which evidence,
excluded from vision would negate the prosecution case or substantially
discredit or impair it, or
(4) Some vital piece of evidence which would tilt the balance in favor of the
convict has been overlooked, disregarded or wrongly discarded.

Matru v. Stateof U.P. (AIR 1971 SC 1950)

The Supreme Court should scrutinize and go into the evidence in special
circumstances in order to satisfy itself that substantial and grave injustice has not
been done.

The Supreme Court does not function as a regular court of appeal in every criminal
case. Normally, the High Court is a final Court of appeal and the Supreme Court is
only a Court of special jurisdiction. The Supreme Court would therefore not
reappraise the evidence to determine the correctness of findings unless there are
exceptional circumstances where there is manifest illegality or grave and serious
miscarriage of justice, for example, the forms of legal process are disregarded or
principles of natural justice are violated or substantial and grave injustice has
otherwise resulted.
Radhakrishna Dash v. Administrative Tribunal ((1988) 2 SCC 229)
The appellants were found guilty of negligence in verifying the stock of wheat with
agents under the State Governments Order. A departmental inquiry was entrusted
to the Administrative Tribunal. On the basis of evidence the Tribunal came to the
conclusion that the appellants had acted negligently and recommended their
discharge from service. Their writ petitions were dismissed by the High Court. The
Supreme Court held that it would not be proper for it to interfere with the
concurrent findings of fact about the guilt of the appellants, as it was not a case of
total want of evidence.

Alamelu v. State (AIR 2011 SC 715)

The Supreme Court has held that even though the power of the Supreme Court
under Article 136 is very wide, in criminal matters, it would not interfere with the
concurrent findings of facts, save in exceptional cases.

Distinction between Article 136 and Articles 132-135

Article 132 allows appeal from judgment etc. Of the High Court in civil, criminal
or other proceeding if the High Court certifies that the case involves a substantial
question of law as to the interpretation of the Constitution.
Article 133 allows appeal from judgment etc. of the High Court in civil matters and
Article 134 allows appeal from judgment etc. of the House in criminal matters.
Appeal under Article 136 is not limited to a particular type of case. Under Article
136, the Supreme Court may grant special leave to appeal from any judgment,
order etc. of any Court or Tribunal in India passed in any proceeding, whether
civil, criminal or other. The Supreme Court may grant appeal from judgment, order
etc. passed in civil proceedings, criminal proceedings, revenue proceedings, etc.
The power of the Supreme Court to grant special leave to appeal is wide and not
affected by Articles 132 to 134.

(1) Under Articles 132, 133 and 134 the appeal can be filed in the Supreme
Court only against such order of the High Court which is final, but the
appeal under Article 136 is possible against any order, whether it is final or
not. The Supreme Court may grant special leave to appeal from interlocutory
order also.
(2) Under Articles 132-134 appeal lies only against the final order of the High
Court; while under Article 136 the Supreme Court can grant special leave
for appeal from “any court or tribunal”, viz. from any subordinate Court
 below the High Court, even without following the usual procedure of filing
appeal in the High Court or even where the law applicable to the dispute
does not make provision for such an appeal.
(3) Under Articles 132-134 an appeal can lie in the Supreme Court only against
any judgment, decree, determination, sentence or order of any court or
tribunal; but under Article 136 an appeal may lie against “any case or
matter”.
Conclusion

Special leave petition or SLP holds a prime place in the Indian judicial system and
has been provided as a “residual power” in the hands of Supreme Court of India to
be exercised only in cases when any substantial question of law is involved or
gross injustice has been done.
The very purpose of enacting such a provision in the Indian Constitution is so that
the Apex Court has the power to interfere if any law has been wrongly interpreted
by the Court or any injustice has been done.
Article 136 merely confers discretionary power on the court to scrutinize and to go
into the evidence in special circumstances in order to see that substantial and grave
injustice has not been done. It does not confer a right of appeal on the party.
It is discretionary power vested in the Supreme Court of India and the court may in
its discretion refuse to grant leave to appeal. The aggrieved party cannot claim
special leave to appeal under Article 136 as a right but it is privilege vested in the
Supreme Court of India to grant leave to appeal or not.

Bibliography

1) The Constitutional Law of India (11th edition 2017)

By Dr. Kailash Rai

2) Constitutional Law of India (52nd edition 2015)

By Dr. J.N.Pandey

3) https://legodesk.com/legopedia/article-136/

4) https://www.lawsenate.com/publications/articles/special-leave-petition-
slp.pdf