In this blogpost, Aritra Mandal, a recent graduate from Jindal Global Law School, describes how and when to apply for a Special Leave Petition with relevant case laws.

Introduction

Knowledge of the law is essential [G1] for every individual to some extent. Each member of the human society lives his or her life in conformity with certain recognized rules and principles of social conduct. An individual is confronted daily with situations which call for knowledge of legal information to chart out the right way. In this series let us understand what we call special leave petition.

What is an SLP?

In any legal system, there is a hierarchy of courts and tribunals at different levels. After a judgment has been passed by a court lower in a hierarchy[G2] , any party, unsatisfied or aggrieved by the outcome may go in for an appeal in the appellate court; which in India is generally a High Court.  However, if any of the parties is unsatisfied by the appellate court’s decision, a further appeal can be made to the Supreme Court of India. The guidelines for these appeal processes are provided by the Articles 132 to 136.

There is a special class of appeals, which may not follow the general hierarchy of the courts and tribunals. Article 136 of the Indian Constitution, allows the Supreme Court to grant special leave to appeal against any judgment or order in any matter or case, made by any court or tribunal in the country. The Supreme Court is vested with the absolute power of interpretation of the constitution being the ultimate guardian of it.

When can an SLP be made?

The appeal can be made in a case where a substantial question of law is involved or where gross injustice has been observed[1]. The judgment, decree or order against which the appeal is being made must have the character of judicial adjudication. This implies that purely administrative or executive order or ruling cannot be a matter of appeal[2] and further, it is also important that the authority whose [G3] judgment or order is being appealed against must fall under the definition of a court or a tribunal.

The Special Leave Petition shall not apply to any judgment or order handed down by any court or tribunal involving the armed forces. This is the only exclusion as is given in the clause 2 of Article 136.

What is “special” about SLP?

What is so special about article 136 that distinguishes it from the general appeals listed in 132-135 are as follows. First, it is not just restricted to appeals against judgments, decrees and final orders of the High court but it can also be granted against the judgments of lower courts. The second thing to note is that article 136 is fluid and flexible compared to articles 132-135 which deals with appeals. What is basically meant is that the judgments, decrees or orders do not have to be final in nature and appeals are allowed even against interlocutory and interim judgments and they may be from cases or matters of either criminal or civil nature or otherwise. However, in the normal course, it is generally expected that the appellant has exhausted all other recourses the law provides.[G4]  Moreover, there may not be any law which limits the jurisdiction of the [G5] Supreme Court when it comes to article 136.

Rules about Special Leave Petition

In leading case laws the following rules have been established.

By virtue of this article, we can grant special leave in cases of civil, criminal, Income tax related cases, cases from various tribunals and any variety of other cases[G6] .[3]

SLP can also be filed when a High Court does not approve fitness for appeal to Supreme Court.

Ordinarily, a private party other than the complainant should not be permitted to appeal.[G7] [4]

The “How” of an SLP

The petition has to contain all the facts which are important for the SC to decide whether an SLP may be admitted or not. This petition has to be duly signed by the Advocate on record and should also be inclusive of the petitioner’s statement that no other petition has been filed in the HC. The same should also have a copy of the judgment the SLP is sought against, along with a verifying affidavit and all relevant documents.

After the petition is filed, the court hears the case and depending on the merits of the case allows the opponent party to state their views in a counter affidavit. Thereafter, the court decides if special leave can be granted or not. If leave is granted, the SC will exercise its appellate jurisdiction. Subsequent decisions of the SC are binding on both the parties.

In the case of Kunhayammed v State of Kerala, AIR 2000 SC 2587, the discussion was about   the exercise of the jurisdiction under article 136 and if it consisted of granting of the SLP and subsequently hearing the appeal. The court has a choice to grant the SLP and if the court decides to not grant it on its findings then the appellate jurisdiction of the court does not come into existence. However, mere dismissal of the SLP petition does not mean that there is res judicata, it merely means that the case was not fit for the grant of SLP and it is open to the aggrieved party to approach the concerned court for review under article 226.

Time Frame

SLP can be filed against any judgement of High Court within 90 days from the date of the judgement. However, there is flexibility at the discretion of the SC. Or it can be filed within 60 days against the order of the HC refusing to grant the certificate of fitness for appeal to SC.

Scope of Article 136

Article 136 bestows the Supreme Court discretion to entertain appeals in suitable situations, not otherwise provided for in the Constitution. The SC may exercise this discretionary power to grant special leave to appeal any judgment or decree or may refuse to grant the leave since this is not a matter of right. An aggrieved party can approach the Supreme Court, for clarification of any constitutional or legal issue involved in any civil, criminal or other type cases, through article 136.[G8]  Thus, the nature of this power of the SC is of residuary nature and its definition is not limited. A study of the SLPs, however, shows that the SC grants leave only in case of exceptional situations and follows well-established judicial procedures in exercising the discretionary power. [G9]

The residuary jurisdiction has been invoked more frequently in case of criminal appeals. SC had declared repeatedly that special leave will not be granted unless special and exceptional circumstances exist and / or grave injustice has been committed. The case of Pritam Singh v. State, (AIR 1950 SC 169:1950 SCR 453) has had a huge importance in understanding the SLP.

This was an appeal by special leave from a judgment and order of the High Court of Judicature for the Province of East Punjab at Simla dated the 23rd November, 1949, in Criminal Appeal No. 367 of 1949 upholding the conviction of the appellant on a charge of murder and confirming a sentence of death passed on him by the Sessions Judge of Ferozepore. On appeal, the Punjab High Court dismissed the appeal and upheld the sentence. The counsel for the special leave pleaded that once an appeal had been admitted by special leave, the entire case was at large and the appellant had the freedom to contest all the findings of the High Court or the trial Court.

The SC found this totally unwarranted.  The SC actually explained how the discretionary powers will be exercised in granting special leave to appeal. This has actually gone on to define SLP. The appeal was subsequently dismissed.

In normal circumstances, the SC does not interfere with an order of acquittal by the High Court as has been exemplified in the case of State of AP v the P Anjaneyulu (AIR 1982, SC 1184). In exceptional situation only, the SC allows an appellant to raise fresh pleas under special leave. For example, in the case of CCE v National Tobacco Co of India Ltd. (AIR 1972 SC 2563), where the authority does not have any jurisdiction under the rules to issue the impugned notice the SC allowed a special leave.  However, a new plea requiring investigations of facts is not generally permitted at this level. Once again, in a situation, where an interpretation of a statute is the basis of a new plea, leave petition may be permitted.[G10]  In the case of Laxmi & Co. v Anand R Deshpande, (AIR 1973, SC 171), it was held that “the court takes notice of subsequent events while hearing appeals under Article 136 to shorten litigation, to preserve the rights of both the parties and to subserve the ends of justice”.

The Supreme Court holds that as the court of last resort it has an inherent power to correct its own previous decisions which may be in violation of the law or the constitution or fundamental rights causing gross injustice to any party. Such ruling arrived at the Antulay v RS Naik (AIR 1984, SC 684) case, where the petitioner sought to invalidate decisions from an earlier case involving the same parties and issues in the apex court.[G11]

A few case studies in brief

1.                  Sanwat Singh v. the State of Rajasthan[G12] , AIR 1961, SC 715

There was a riot between two rival factions of resulting in injuries to many and death of two farmers. The Sessions court acquitted the convicts, but on appeal, the High [G13] Court found some accused guilty and sentenced them to various terms of imprisonment.  One of the convicts applied for a special leave against the conviction and sentence by the High Court. The counsel for the appellants argued that the High Court has interfered with the findings of the Sessions court and this was a departure from the principles of the Privy Council, which was referred. The SC ruled that Article 136 vests discretionary power which cannot be exhaustively defined but does not permit interference unless substantial and grave injustice has been done and the conscience of the court is shocked. The appeal was dismissed[G14] .[G15]

2.                  Jaswant Sugar Mills Ltd. v. Laxmichand, AIR 1963 SC 677

The workers of the Jaswant Sugar Mills Ltd. Company resorted to agitation for enforcing their demands for a bonus, leave[G16]  etc. The company wanted the agitating workers to be dismissed. Since a dispute between the company and its workers was already pending before the Industrial Tribunal the workers could not be discharged without the permission of the Conciliation Officer.  The Officer granted permission in respect of only a few workers.  The company made an appeal to the  Labour  Appellate Tribunal but  it  was  dismissed  as incompetent on the ground that the Conciliation Officer  was not an authority as per the Industrial  disputes  (Appellate Tribunal) Act, 1950. The company then obtained special leave to appeal to the Supreme Court against the direction of the Conciliation Officer and also against the order of the Labour Appellate Tribunal.

SC agreed that the Conciliation Officer is not a tribunal or court. The right to appeal under Article 136 is only against awards or decisions, and a Conciliatory officer’s job is not to award or deliver any definitive judgment affecting rights of parties.  The Labour Appellate tribunal also upheld this position. Therefore, both the appeals were dismissed.

3.                  Kunhayammed v State of Kerala, AIR 2000 SC 2587

In this particular case, the [G17] subject of discussion was the exercise of the jurisdiction under article 136 and whether it consisted of the granting of the SLP and subsequently hearing the appeal. The court has a choice to grant the SLP and if the court decides to not allow this on its findings then the appellate jurisdiction of the court does not come into existence. However mere dismissal of the SLP petition does not mean that there is res judicata, it merely means that the case was not fit for the grant of SLP and it is open to the aggrieved party to approach the concerned court for review under article 226.

Finally, if a special leave is not granted, the parties must abide by the decisions given by the courts. Article 141 of the Constitution lays down that the law declared by the SC is binding on all courts.

Conclusion

Special Leave Petition is a huge instrument of the dispensation of justice from the apex court in the country. [G18] However, SLP is a very fluid and flexible provision because of its inherent nature. Consequently, there are many leave petitions, which tend to choke the SC, but there are plenty which is rejected at the admissions stage also, which sort of keeps a balance.[G19] [G20]

Note: If more information is required on the subject of Special Leave Petition, the reader can consult the book “Constitution of India” by VN Shukla, Eastern Book Company, 2013, which is a good source.

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[1] Sanwat Singh v. the State of Rajasthan, AIR 1961, SC 715

[2] Jaswant Sugar Mills Ltd. v. Laxmichand, AIR 1963 SC 677

[3] Pritam Singh v. State, AIR 1950 SC 169:1950 SCR 453.

[4] K Manjushree v. State of AP, AIR 2008, SC 1470