Special Leave Petition

Submitted To:
Mr. Indra Nath Dey
Faculty of Law
Submitted By:
Aunnesha Dey
Semester IX
Section C
Roll No. 38

Hidayatullah National Law University, Raipur (C.G.)

Acknowledgment
I feel highly elated to work on the topic Special Leave Petition.
The practical realization of this project has obligated the assistance of many persons. I express my deepest regard
and gratitude to my teacher Mr. Indra Nath Dey for his unstinted support. His consistent supervision, constant
inspiration and invaluable guidance have been of immense help in understanding and carrying out the nuances of the
project report. I would like to thank my family and friends without whose support and encouragement, this project
would not have been a reality. I take this opportunity to also thank the University and the Vice Chancellor for
providing extensive database resources in the Library and through Internet.
My gratitude also goes out to the staff and administration of HNLU for the infrastructure in the form of our library
and IT Lab that was a source of great help for the completion of this project Some printing errors might have crept
in, which are deeply regretted. I would be grateful to receive comments and suggestions to further improve this
project report.

Objectives

To study the concept Special Leave Petition.

To analyze various Articles under the Indian Constitution which allows filing of Special Leave Petitions.

Research Methodology
This research project is largely based on secondary & electronic sources of data. Books, case laws, journals & other
reference as guided by the faculty are primarily helpful for the completion of this project.

Nature of Study
This research project is Theoretical in nature since it is largely based on secondary & electronic sources of data and
also since there is no field work involved while producing this research and it largely involves study of various
articles and comparison from different books, journal and other online sources thus not being empirical in nature.

Introduction
The Supreme Court of India exercises jurisdiction, which is wider than that of most apex courts in the world. Our
Supreme Court has the most extensive jurisdiction of any final court in the world. Unlike most constitutions, the
constitution of India (hereinafter "the constitution") does not create different apex courts in respect of different areas
of law.1 The Constitution-' envisages the Supreme Court as the final court of the land "in any cause or matter." it is
not merely a constitutional court but also a final court of civil and criminal appeals.
Extending to the whole of India, the Supreme Court has jurisdiction to hear matters on both original and appellate
sides. While it exercises original jurisdiction under Article 32 (enforcement of fundamental rights) and Article 131
(suits between the union and the constituent states) and advisory jurisdiction under Article 143 (aid and advice to the
1 Seervai, Constitutional Law of India 4th Edition Volume 3, Universal Book Traders Page 2862

president), an appellate jurisdiction of a widest nature is conferred by Articles 132 to 136. Article- 132 provides for
appeals from high courts in cases "certified fit" as involving substantial question of interpretation of the constitution.
'appeals by certificate' also lie in certain civil (Article 133) and criminal (Article 134) matters.
Whereas the constitution contemplates the issuance of a 'certificate of fitness' of appeal by the adjudicating high
court the appellate jurisdiction of the Supreme Court is not necessarily contingent upon the issuance of such
certificate. where the conditions stipulated under Articles 132 to 134a are not fulfilled, or where the high court
refuses to issue the certificate on any other ground), a power is conferred upon the Supreme Court under Article 136
to grant permission to allow appeal to itself.
This power is called the power to grant 'special leave to appeal on refusal of the certificate, the aggrieved party may
apply to the Supreme Court by a petition, called the Special leave petition, to allow it a hearing, and the Supreme
Court may, if it is satisfied that the matter involves a "substantial question of law," which in its opinion ought to be
finally settled by it, grant special leave to appeal.
Special leave petitions in Indian judicial system
The constitution of India under Article 136 vests the Supreme Court of India with a special power to grant special
leave to appeal against any judgment or order or decree in any matter or cause passed or made by any court/tribunal
in the territory of India.
This is special power bestowed upon the Supreme Court of India which is the apex court of the country to grant
leave to appeal against any judgment in case any substantial constitutional question of law is involved or gross
injustice has been done. Special leave petition hold a prime place in the Indian judicial system. It provides the
aggrieved party a special permission to be heard 2 in apex court in appeal against any judgment or order of any
court/tribunal in the territory of India.
Special leave petition or special leave petition can be presented under following circumstance:

Special leave petition can be filed against any judgment or decree or order of any high court /tribunal in the

territory of India.
or, special leave petition 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 special leave petition can be filed:

Special leave petition can be filed against any judgment of high court within 90 days from the date of

judgment.
or Special leave petition 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.

Who can file special leave petition:

Any aggrieved party can file special leave petition against the judgment or order of refusal of grant of certificate.
2 M.P. Jain, Indian Constitutuional Law (Mumbai: N.M. Tripathi) Page 132

Contents of special leave petition:

This petition is required to state all the facts that are necessary to enable the court to determine whether special leave
petition ought to be granted or not. it is required to be signed by advocate on record. The petition should also contain
statement that the petitioner has not filed any other petition in the high court.
It should be accompanied by a certified copy of judgment appealed against and an affidavit by the petitioner
verifying the same and should also be accompanied by all the documents that formed part of pleading in lower court.
Special leave petition is filed under Articles 132, 133, 136 of the Constitution of India

Special leave petition is filed under Article 132 of the constitution of India which contemplates for an appeal
to the Supreme Court of India from a judgment, decree or final order of a high court, whether in civil, criminal or
any other proceedings, if the high court certifies that the case involves a substantial question of law as to the
interpretation of the constitution of India. On the basis of such certificate the party can approach the Supreme
Court of India and engage a lawyer for special leave petition in Supreme Court of India and file a special leave
petition in the Supreme Court of India.

Special leave petition is also by way of a appeal under Article 133 of the constitution of India which
contemplates for an appeal to the Supreme Court of India from a judgment, decree or final order of a high court,
from a civil proceedings of a high court, if the high court certifies that the case involves a substantial question of
law of general importance and in its opinion the said question of law need to be decided by the Supreme Court of
India. After the issuance of such a certificate, the party aggrieved by the order of the high court can engage a
lawyer for special leave petition in Supreme Court of India and file a special leave petition in Supreme Court of
India against the orders of the high court.

Special leave petition is also by way of appeals under Article 132 of the constitution of India which
contemplates for an appeal to the Supreme Court of India from a judgment, final order or sentence in a criminal
proceedings of a high court if:
a) it has on appeal reversed an order of acquittal of an accused person and sentenced him to death or
b) has withdrawn from trail before itself, any case from any court subordinate to it and has in such trial
convicted the accused and sentenced him to death or
c) it certifies that the case of a fit one for appeal to the Supreme Court of India. The party aggrieved by the
order of the high court can engage a lawyer for special leave petition in Supreme Court of India and file a
special leave petition against the orders of the high court.

Special leave petition is also under Article 136 of the constitution of India which contemplates that the
Supreme Court in its discretion grant special leave to appeal from any judgment, decree, determination, sentence
or order in any case of matter passed or made by any court or tribunal in the territory of India except the court of

tribunal constituted by or under any law relating to armed forces. The party aggrieved by the order of the high
court can engage a lawyer for special leave petition and file a special leave petition against the orders of the high
court. the special leave petition under Article 136 of the constitution of India is the most prevalent and common
petition filed before the Supreme Court of India against the orders of the high courts
The scope of power vested with the Supreme Court of India under Article 136:
The Constitution of India vest 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/tribunal in the territory of India. The Supreme Court of India may also refuse to
grant the 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 privilege which the Supreme Court of India is vested with and
this leave to appeal can be granted by it only.3
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 can be heard as civil or criminal appeal as the case may
be. This is residual power vested with the Supreme Court of India.
Judgments of various courts of India on Special leave petition
There is catena of judgments mentioning about the scope of power of Supreme Court under Article 136, the
maintainability of special leave petitions. The below mentioned are some of prominent judgments mentioning about
Special leave petition.
1. Pritam Singh vs. State4
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 the power conferred upon the Supreme Court of India is of residual nature
and is a discretionary power.
Article 136 does not confer upon a litigant a right to appeal against any order or judgment but vest 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.
3Osborn: Osborn's Concise Law Dictionary, 8th Edition, Universal Law Publishing Co. Ltd. (2002)

4 AIR 1950 SC 169

2. Smt. Tej Kumari vs. CIT5

The full bench of the Patna High Court held that in case a special leave petition is summarily rejected or
dismissed under art 136 of the constitution then such a dismissal does not lay down any law. The decision of
the High Court against which the Special leave petition is dismissed in limine would not operate as resjudicata. However, when Supreme Court dismisses a special leave petition with reason, it might be taken as
the affirmation of the high court views on merits of the case, thus there is no reason to dilute the binding
nature of precedents in such cases.
3. N. Suriyakala vs. a. Mohan Dass and Others6
The Supreme Court observed with regard to scope of Article 136 that Article 136 of the constitution is not a
regular forum of appeal at all. 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.
4. Tirupati Balaji Developers Pvt. Ltd. vs. State of Bihar7
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 a
party but vests a vast discretion in the Supreme Court meant to be exercised on the considerations of justice,
call of duty and eradicating injustice.
5. Jamshed Hormusji Wadia vs. Board of Trustees, Port of Mumbai8
This court observed that the discretionary power of the Supreme Court is plenary in nature in the sense that
there are no words in Article 136 itself qualifying that power. the court further said the very conferment of the
discretionary power defies any attempt at exhaustive definition of such power. the power is permitted to be
invoked not in a routine fashion but in very exceptional circumstances as when a question of law of general
public importance arises or a decision sought to be impugned before the Supreme Court shocks the
conscience. This overriding and exceptional power has been vested in the Supreme Court to be exercised
sparingly and only in furtherance of the cause of justice in the Supreme Court in exceptional cases only when
special circumstances are shown to exist.

5(2001) 247 ITR 210

6(2007) 9 SCC 196

7 AIR 2004 SC 2351

8 AIR 2004 SC 1815

6. Mathai @ Joby v. George 9

The court observed that Article 136 like Article 226 is a discretionary remedy and the court is not bound to
interfere even if there is error of law or fact in the impugned order. The use of the words in Article 136 clearly
indicates that it does not confer a right of appeal upon any party but merely vests discretion in the Supreme
Court to interfere in exceptional cases. The court further observed that a constitutional bench should be
formed laying down some broad guidelines as to what kind of cases should be presented under Article 136.

Conclusion
The power conferred by Article 136 on the Supreme Court is most noble and desirable in a country of large scale
regional disparities, diverse customs, personal law, administrative challenges etc. However at the same time, the
same should be cautiously exercised.
Article does not confer upon any person the substantive right to appeal. Alike all other manifestation of adjective
law, Article 136 must yield to justice. It can, at best, be a handmaid to best subserve its mistress; justice, which
9 (2010) 4 SCC 358

cannot be denied on a mere technical or strict view of law. Similarly, the power under Article 136 cannot be
exercised to obstruct the path of justice.
In a democratic set up like ours, where the legislature and the executive have, with the passage of time, virtually held
and attitude of indifference towards the constitutional objective of strong people oriented order of governance, the
judiciary remains the only accessible organ of State. In our extremely detailed Constitution, which took care to deal,
as exhaustively and with as many issues as possible, it was certainly not by chance that the constitution did not
provide for any criterion for the grant of a special leave.
The omission, in fact, is a manifestation of the farsightedness of the Constitution makers in relying on the wisdom of
the Judges, dealing with each particular case and taking note of each factor necessitating the further development of
law.
The only stipulation then, which is implicit, is that of justice, real and complete.
Thus, the ultimate touchstone for the exercise of the power under Article 136, just as the exercise of any other power
by the judiciary, is meeting the ends of justice.
Nevertheless, at the same time, 'casual' exercise of this power has the potential to do more harm than good by putting
the entire justice delivery system in jeopardy.
A system that takes a hyper technical view of Article 136, and reads it without the general duty case under Article
142 belies the hopes of " We, the people," for and by whom the Constitution has been enacted , and gifted to.

What would rather be more anomalous is the fact that the Constitution would otherwise be defeated by the very
organ entrusted with the power and duty to interpret, uhold and protects it.
The endeavor must be not to suppress cases fit to be entertained under Article 136, but to render justice in all cases
by further enlarging the number of judges as to be a functional proportion of the population.
Thus, the need today is to strike a functional balance through the instrumentality of Article 136 between the
administration of justice on the one hand and the strict letter of the law on the other. It must be remembered that no
single criterion can be fit for all cases at any time, or for any case at all times and therefore, the Supreme Court must
act on the basis of its experience, wisdom and sense of justice, in the light of the constitutional mandate directed at it,
while considering the grant of a Special Leave petition.
Special leave petition or special leave petition 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. 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. M.P. Jain, Indian Constitutional Law (Mumbai: N.M. Tripathi) Page 132
2. Seervai, Constitutional Law of India 4th Edition Volume 3, Universal Book Traders Page 2862
3. Osborn: Osborn's Concise Law Dictionary, 8th Edition, Universal Law Publishing Co. Ltd. (2002)