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Supreme Court and the power to grant special leave to appeal with condonation of delay

September 28, 2021
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This article is written by Rakchit Mishra from Birla Global University. This article completely deals with the power of the supreme court in cases of appeal by special leave.

Introduction 

The Supreme Court is the Apex Court in India which was established after independence by the Constitution in the year 1950, where H.J. Kania was declared as the first Chief Justice of India. It consists of a maximum of thirty judges along with the Chief Justice of India, and it is also known as the highest court of appeal because if any person is not satisfied with the judgments given by any lower court or a high court, then in such cases they can appeal to the Supreme Court of India. In case of any conflict of authority between a judgment of the Full Bench of a High Court and a Judgement of Division Bench of the Supreme Court, judgments given by the Supreme Court will only prevail as it is the highest court in India and all those laws which are exercised by the Supreme Court under its jurisdiction will have the binding effect on all the courts in India. The Supreme Court of India is a court of record which means that the judgments given by the Supreme Court of India have a strong evidentiary value as those judgments can be presented in any court of law as evidence. The Supreme Court of India has the power to punish for the contempt of the court which also extends to the high courts and lower courts as well. As stated that anybody can go for an appeal in the Supreme Court of India but that person is bound to take special permission from the Supreme Court for such appeal to the supreme court of India has the power to grant the appeal by special leave to a person in any case which was passed by any court in India grant of special leave appeal by the supreme court which is stated under Article 136 of the Indian Constitution is a discretionary power of the supreme court which means that it’s upon the supreme court whether they allow for such special leave appeal or not but in other cases of appeal it acts as a matter of right of parties in civil, criminal and constitutional matters.

The role of SC in granting special leave appeal 

Article 136 of the Indian constitution states that the supreme court of India can grant the appeal by special leave in any case where the order was passed by any of the courts or tribunals in India for example if session judge has given a judgment and there is disregard to the legal principle due to which the appellant wants to go for special appeal in the Supreme Court of India then in such cases he can go for appeal in the Supreme Court of India without first going to the high court. As it is stated that the supreme court’s power to grant special leave is also applied to tribunals which means that if any judgment or an order is passed by any tribunal, a special type of body which is created by law and gets the power from the law itself then in such cases also Supreme Court has the power to grant special leave appeal but granting such special leave appeal works as a discretion of the supreme court which means that here parties cannot claim that they will get permission from the Supreme Court for such appeal rather its upon the Supreme Court of India whether to give permission or not but if Supreme Court is exercising its power under discretion then in such cases there should not be any failure of justice.

The Supreme Court of India can grant special leave appeal only in exceptional cases where there has been substantial injustice or disregard to the legal procedure by any courts except tribunals made for armed forces or if there is a violation of the principle of natural justice so in such cases, the Supreme Court of India can allow anybody to approach for appeal under Article 136 of the Indian Constitution. Further, whatever has been mentioned in Articles 132, 133134, and  134A will stand as a priority but if any person is not able to approach the Supreme Court concerning such provisions then in such cases the supreme court may permit him to approach for any appeal. This jurisdiction of the Supreme Court is not limited by any law. Since the Supreme Court is termed as the highest authority in decision making and in protecting the Constitution so this power is given to the Supreme Court. Article 136 of the Indian constitution is open to all types of cases but if there is purely executive direction and there is no such involvement of judiciary decision then in such cases the supreme court will not grant permission for an appeal by a special leave because the Supreme Court has the power to grant for appeals only if the subject matter is related to judicial decisions. If there’s a delay in filing the appeal by special leave then in such cases one has to justify the reasons properly to the court and if the court is satisfied then in such cases it may allow for such appeal by special leave. In cases of criminal matters, there has been a case named Mohd. Namaz v Emperor (1941) where it is mentioned about the events or the points where the Supreme Court can interfere if the decision is given by the lower courts and the high courts such as:

What kinds of tribunals are allowed under Article 136 of the Indian Constitution

First of all, it should be a body created by law and it should be given the power to determine disputes affecting citizens by the law itself. Secondly, proceedings that will be heard by such tribunals should start after the submission of application and it should have all those powers that a civil court has under the Code of Civil Procedure(CPC) i.e: the power to call the parties, question the parties, call the witnesses and examine such witnesses as it is done in a normal court of law, etc. Lastly, each member of such a tribunal should possess the qualifications of a judge but it should be noted that it will not include all those tribunals which are made for armed forces.

Who can grant, to whom can it be granted and the consequences

Appeal by special leave can be granted by the Supreme Court of India in any case where the order or the judgment is passed by any court or tribunal within the territory of India but it will not include the military tribunals. If there is a violation of the principle of natural justice or if there is any failure of justice by any courts within the territory of India then in such cases the Supreme Court of India may grant for appeal by special leave to any person provided that the person should take the permission from the Supreme Court before going for such appeal. This appeal by special leave is granted to the aggrieved party or the appellant i.e; the party who has suffered grave injustice by any of the courts of India or if there is any matter related to question of law and further if he wants to appeal in the Supreme Court then in such cases the Supreme Court of India may grant him appeal by special leave under Article 136 of the Indian constitution. As a consequence of such appeal by special leave, the Supreme Court can either accept such application made or it can reject such application which was made by the appellant because here the Supreme Court has the discretionary power to decide whether they should accept or reject such application of the appellant but if the Supreme Court accepts the application then after that it can reverse the order of the lower court or the high court. For example, if the accused was not given the chance to call witnesses in a court of law then in such cases further he can appeal by special leave to the Supreme Court of India as he suffered grave injustice by the lower court and if the court is satisfied then in such cases it may grant permission for such appeal and also reverse the order of any such lower court.

Landmark judgments 

Conclusion 

According to my point of view, the power of the Supreme Court to grant special leave appeal and to interfere in those judgments passed by any lower courts where there is a huge miscarriage of justice serves the justice in our country under Article 136 of the Indian constitution because if there was no such power given to the Supreme Court then in such cases it will be impossible to meet the ends of justice as there may be some failure on the part of the court while declaring the judgments of a particular case so to keep a check on those mistakes the Supreme Court has been given the power to grant special leave by appeal to any person against any orders passed by the courts within the territory of India.

References 


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