Special Leave Petition

What is a 'Special Leave Petition'

The hierarchy of the legal systems provides for the right to appeal before a higher forum against a judgement or order passed by a lower forum, if a party is dissatisfied or aggrieved by the same. In India, after going through the Trial Courts, the High Courts are generally approached for appeals. Following this, the Supreme Court can be approached as the final appellate court, only upon the fulfillment of certain criteria as laid down under Art. 133 or Art. 134 of the Constitution. Notwithstanding these provisions, the Constitution provides for the remedy of a 'Special Leave Petition,' whereby an aggrieved party may not follow the general hierarchy of appellate courts and may directly approach the Supreme Court to try an appeal against a judgement or order passed by an inferior court or tribunal. The appeal being heard by the Court is subject to the grant of “special leave,” which is determined based on the Court’s discretion. Thus, dealing with Special Leave Petitions constitutes an extraordinary, discretionary jurisdiction of the Supreme Court of India.

Differences from other forms of appeal provided under the Constitution:

Under Art. 134, criminal appeals exist as a matter of right in cases involving sentences of death penalty or imprisonment for life or more than 10 years. Appeals under all other circumstances, rely on a grant of certificate of fitness or “leave to appeal” from the competent High Court passing the impugned order, after ascertaining that the matter deals with a “substantial question of law” or “public importance.”

Unlike such appeals, Special Leave appeals are not dependent on the grant of any certificate by a High Court, and can be allowed directly by the Supreme Court. Even if a High Court explicitly refuses to grant a certificate under Art, 133 or 134, the Supreme Court can permit leave under Art. 136 and take up any case or proceeding on appeal,  from any court or tribunal.

It is to be noted that Art. 136, unlike Art. 133 and Art. 134, does not confer a regular right of appeal upon any party. It is a residuary provision, which confers upon an applicant a right to apply for special leave to appeal, which may be granted or rejected in exercise of the Supreme Court’s discretion. The right to appeal exists so long as the Court does not revoke leave granted.

Hence, the jurisdiction of the Supreme Court under Art. 136 is exercised in 2 steps:

• The grant of special leave to appeal
• The hearing of the appeal itself

First, a prayer is made to avail special leave to file an appeal. At this stage, the Court does not exercise its appellate jurisdiction, rather it exercises its discretionary jurisdiction to determine whether or not leave should be granted in a given case. Second, once the Court determines the appeal as fit to be entertained and grants leave, the appellate jurisdiction of the Court is invoked. Thereafter, the matter would be converted into a regular appeal and be heard by the Supreme Court in the same manner as an appeal would be heard under Art. 133 or Art. 134.

Another significant difference between appeals under Art. 133 and 134 and appeals under Art. 136 is that the former appeals can lie against “final orders.” No equivalent qualification is laid down in Art. 136, which means Special Leave Appeals can be entertained against both final and interlocutory orders.

Moreover, the jurisdiction under Art. 136 is plenary in nature. Even where an order of the Supreme Court passed in exercise of this jurisdiction is irregular in nature, it cannot be declared a nullity or challenged in any collateral proceeding. It may only be set aside by itself on review. No legislation can be used to limit the jurisdiction of the Supreme Court under Art. 136. The provision is constitutional in nature and any legislation attempting to limit the exercise of this jurisdiction would be in contravention of the Constitution.

Official Definition of 'Special Leave Petition'

‘Special Leave Petitions’ are covered by Art. 136 of the Constitution of India, which confers an extraordinary jurisdiction upon the Supreme Court. SLPs are made by parties who seek special permission or “leave” from the Supreme Court to appeal against any judgement, decree or order of any court or tribunal in the territory of India.

The Article begins with a non obstante clause (“notwithstanding anything in this Chapter…”), that implies the power conferred upon the Court to entertain appeals by the Article is not fettered by any limitations.

Art. 136(2) however provides a restriction, i.e. the only courts or tribunals whose orders, decrees or judgements cannot be challenged by way of a 'Special Leave Petition' are those which are established by or under any law relating to the Armed Forces.

'Special Leave Petitions' as discussed in official government reports:

The Law Commission of India has extensively discussed on Special Leave Petitions in its various reports. Considering that Art. 136 does not put down any definite criteria as to the subject matter or types of cases against which special leave to appeal can be sought, the jurisdiction vested in the Supreme Court thereunder has been misused to initiate frequent, frivolous litigation, thus immensely increasing the Supreme Court's workload.

To deal with this issue, it was suggested in the 229th Law Commission Report that four Regional Courts be created and designated as the highest appellate authorities in the country. This would be modelled after the South African Constitution, which provides for the creation of two distinct apex courts, with one functioning as a final appellate court and the other functioning purely as a Constitutional court. If this framework were to be implemented in India, the Supreme Court would no longer be the final appellate authority and would only focus on dealing with Special Leave Petitions and Constitutional matters. However, the Court would continue to preserve its overarching power under Art. 142 to do complete justice in any matter as it deems fit.

Evolution of 'Special Leave Petitions'

Originally, the Supreme Court’s appellate jurisdiction with respect to civil and criminal cases was very restricted. Criminal appeals could only be heard in cases where convicts were sentenced to death, and civil appeals had a pecuniary limit of 20,000 rupees. Consequentially, the Supreme Court was granted an extraordinary, residuary jurisdiction under Art. 136, to hear appeals in civil and criminal cases which did not satisfy the requirements prescribed under Art. 133 and Art. 134 respectively.

Art. 136 was originally Draft Art. 112 of the Constitution of India. The expression “special leave to appeal” in Art. 136 was borrowed by the framers of the Constitution from the Government of India Act, 1935. S.206 of the Act provided that a judgement, decree or final order of a High Court in certain civil cases may be appealed against before the Federal Court without certification, provided that the types of cases are clarified by enactment and the Federal Court grants “special leave to appeal.

The First Draft Constitution created included a provision, S.94, similar to S.206 of the Government of India Act. Hereunder the Supreme Court could hear appeals from the High Court without a certificate, by granting “special leave to appeal.” Subsequently, the Drafting Committee deviated from this provision and introduced Draft Art. 112, whereunder the Supreme Court, “in its discretion,” could grant “special leave to appeal” from any judgement, decree or final order “in any cause or matter, passed or made by any court or tribunal” in India.

This Article was extensively debated on, in the Constituent Assembly on 6th June and 16th October, 1949. A member of the Assembly, Prof Shibban Lal Saksena proposed the Article should encompass the power to decide appeals on “principles of jurisprudence and considerations of natural justice.” H.V. Pataskar suggested that the Supreme Court should only grant “special leave” where there was a serious breach of the administration of justice, which goes to the root of a matter. Although these principles were not explicitly put down in the final Art. 136, they continue to be guiding principles for the Supreme Court to grant special leave.

The addition of Draft Art. 112(2) (now Art. 136(2)) were made at the behest of the Defence Ministry, based on practices in the UK to exclude decisions of court-martials from the appellate jurisdiction of the Supreme Court. This was strongly opposed in the Constituent Assembly. It was argued that persons granted the death sentence in military tribunals should have the right of appeal before the Supreme Court. Additionally, civilians who committed offences under the jurisdiction of military tribunals would be unfairly deprived of their right to appeal. However, the clause was upheld by the Chairman of the Drafting Committee as necessary to maintain discipline in the army. It was also clarified that the Supreme Court had the power to intervene in a matter where a court martial or military tribunal exceeded its jurisdiction or where proceedings were completely arbitrary.

Legal Framework relating to 'Special Leave Petitions'

Criteria to allow 'Special Leave Petitions':

Art. 136 gives the Supreme Court enormous discretionary powers to grant special leave and hear any kind of appeal in any matter, from any court or tribunal. Usually, Art. 136 has been utilized by the Supreme Court where:

• An appeal is otherwise barred by a specific Constitutional provision. For instance, under Art. 133(3), an appeal cannot lie before the Supreme Court from any judgement, decree or final order of a single judge of a High Court. Under Art. 136, an appeal can lie from a single judge’s order, even if it is final or interlocutory in nature, provided leave is granted by the Supreme Court.
• A certificate designating a matter as fit for appeal under Art. 133 or 134 has been wrongly refused or wrongly granted
• An appeal could have been dealt with under another Article, but special leave has been sought for the same. For example, under Art. 132(2), it is provided that even if the High Court refuses to give a certificate for appeal, the Supreme Court may hear the appeal after grant of special leave if the matter deals with a substantial question of law as to the interpretation of the Constitution.

When an SLP is made under Art. 136, the Supreme Court ordinarily only considers those points dealt with or stated in the order of the court below which has been appealed against. Only those points which are purely legal in nature may be argued before the Supreme Court for the first time by way of the SLP.

Considering that the Supreme Court does not function as an ordinary court of appeal under Art. 136, ordinarily, in an SLP, it does not interfere with questions of fact, more so when the findings on facts have been concurrently agreed upon by both the Trial Court and the High Court in the matter. Conversely, any question of facts which was not raised before the High Court, Trial Court or tribunal below cannot be raised before the Supreme Court for the first time Nevertheless, the wide, discretionary scope of Art. 136 permits the Supreme Court to look into findings on facts, even when concurrently agreed upon by the trial court and High Court, under the following circumstances:

• Where findings are perverse, such that no reasonable person could have made them, even if taken at face value

• Where on proved facts, wrong inferences of law have been drawn
• Where important factual circumstances have not been considered
• Where evidence has been misappreciated or has improperly rejected. Had the evidence been received or correctly appreciated, a different conclusion could have been reached in the case.
• Where the findings are based on inadmissible evidence
• Where the findings are not based on any evidence
• Where on evidence presented, the accused is entitled to the benefit of doubt.

Criteria to allow 'Special Leave Petitions' in criminal cases:

• In cases where an appeal made by a convicted accused is allowed by special leave, the Supreme Court may suo moto take up the case of a convicted co-accused, even if such an accused has not appealed before the Court. Thereafter, the Court can take a joint trial to determine whether the co-accused deserves the same treatment as the accused who has taken a Special Leave Appeal.
• Where a high court acquits the accused of some offences, the Supreme Court on Special Leave Appeal against the acquittal, may set aside the acquittal if the same is not justified by clear evidence. Thus, the rule against interference with findings on facts is not rigidly imposed in every case. It is a self-imposed limitation of the Supreme Court and is modified as per the circumstances of each case.

Under Art. 136, the Supreme Court also has the power to quash criminal proceedings under certain circumstances. This is akin to a high court’s inherent power to quash criminal proceedings under S. 482 of the CrPC. The circumstances under which a proceeding can be quashed are as follows:

Where on admitted facts, there is no sufficient ground for proceeding against the accused.

- Where the allegations in a case are absurd and inherently improbable

- Where proceedings have been initiated on concocted or frivolous grounds.

- Where the police have started investigating a non-cognizable offence without the order of a Magistrate as per S. 155(2) of the CrPC.

- Where proceedings have been pending in the trial court for a long period of time for no fault of the accused, and no useful purpose would be served by concluding the proceedings after such a lapse of time.

Legal provisions relating to 'Special Leave Petitions':

Orders XXI and XXII of the Supreme Court Rules deal with Special Leave Petitions in civil and criminal cases respectively. The provisions under Order XXI lay down the procedure to file an SLP in a civil matter.

• Order XXI, Rule 1 provides that where a certificate of fitness to appeal to the Supreme Court, required to file a civil appeal under Art. 134A of the Constitution is refused to be granted by a High Court, the time limit to file an SLP would be 60 days from the date of the order of refusal of certificate. In other cases where an appeal is sought against any judgement or order before the Supreme Court, the time limit to file the SLP would be 90 days from the passing of the impugned judgement or order.

This time-limit is subject to Sections 4, 5, 12 and 14 of the Limitation Act, under which exceptions are provided to the period of limitation. For instance, under S.4 of the Act, if the time-limit for filing the SLP expires on a day on which the Court is closed, the SLP may be filed when the Court reopens. If an application is made by the petitioner under S.5 of the Limitation Act alongside the SLP, a delay in filing the SLP may be condoned, if the appellant satisfies the Court that there were sufficient reasons for not filing the SLP in time. However, the delay is not to be condoned without notice being provided to the respondent.

• Under Rule 2, it is provided that the SLP shall be accompanied by an affidavit stating the following details:

- The date of the judgement against which the appeal is being sought

- The date on which a certificate of fitness to appeal was sought from the High Court

- The date of the order refusing the grant of certificate and the grounds on which the certificate was refused to be granted.

• Rule 3(f) specifically lists down the important documents that must be presented at the time of the filing of the SLP:

i) List of dates

ii) Certified copies of the judgement or order against which leave to appeal is sought

iii) The SLP itself, in the format shown in Form 28 of the Supreme Court Rules

Supreme Court Rules, Form 28: Format for an SLP in a civil matter

iv) Appendixes containing relevant provisions of the Constitution, statutes, ordinances, rules, regulations, orders or bye-laws on which the SLP is based

v) Annexures, if any (must be certified copies)

Additionally, the SLP should only state those pleadings which were made before the Court or Tribunal whose order is being challenged. Additional grounds may only be urged at the time of hearing, with due notice to the respondent and with the leave of the Court.

The petitioner may produce the copies of the petition and documents which were part of the record of the case before the Court or Tribunal below. However, if the petitioner wants to produce a document that is not part of the record of the Court below, he must make a separate application stating the reasons for not producing the same in the Court below and the necessity for producing it before the Supreme Court. The SLP must also be supported by an affidavit stating that all the facts in the petition are true to the petitioner’s knowledge, information and belief.

It must be noted that an SLP won’t be entertained by the Registry of the Supreme Court unless the petitioner lays down information in the petition as to whether he has filed any SLP against the impugned judgement or order earlier and shows the result of the same. If the Court finds that the petitioner has not disclosed the fact that he had filed an SLP against the impugned order or judgement earlier and the same had been dismissed, it shall dismiss the second SLP. If, by then, special leave has already been granted, it shall revoke the same. These provisions are put in place to ensure that there is no multiplicity of proceedings. Where a person is sought to be impleaded as a party to the SLP, as the legal representative of a party to the proceedings in the court below, the SLP must contain a prayer for bringing on record such person as a party. If in the period between the filing of the SLP and the hearing of the same, the status of any party to the matter changes (for instance, a party dies), an application shall be made to the Supreme Court stating who is the proper person to be substituted or entered on record.

When an SLP is filed, notice must be served on the respondent. However, if the SLP is being sought against an interlocutory order or any proceeding that is pending in a court below, notice may be served on the advocate appearing for the opposite party before the court below. Order XXI, Rule 14 summarises the procedure a respondent is supposed to follow when an SLP is filed:

• Once a notice for an SLP is issued to a respondent, the respondent is entitled to oppose the grant of leave with written objections, within 30 days from the date of receipt of notice, or not later than 2 weeks before date of hearing. The respondent’s objections must pertain to the questions of law on which the SLP is based.
• Like the petitioner, the respondent must support his statement of objections with an affidavit, verifying the correctness of the statements made by him.
• If the respondent wants to produce any document before the Supreme Court, which was not part of the record of the Court below, he, like the petitioner, must file an application seeking the Court’s permission to produce such documents, and show reasons for why it was not produced in court below and the necessity for producing it before Supreme Court
• Additionally, the respondent, may, if necessary, file additional list of dates with material facts, in addition to those furnished by petitioner, if he consider petitioner’s list of dates inaccurate or incomplete.

Order XXII of the Rules deal with SLPs filed in criminal cases. The provisions thereunder are largely similar to those under Order XXI, with very few deviations. The additional provisions under Order XXII are as follows:

• Where the petitioner has been sentenced to imprisonment, the petition shall state whether the petitioner surrendered. If he has done so, he shall file the certified copy of the order of the Court in which he surrendered, or a certificate of a competent officer of the jail in which he is undergoing his sentence, as proof of his surrender.
• If petitioner is in jail and is not represented by an Advocate-on-Record, he may present the SLP with a certified copy of judgement appealed against and written arguments -to the officer-in-charge of the jail, who shall subsequently forward the same to Registry of the Supreme Court. The Registrar shall then call, from the Court or Tribunal appealed from, the relevant documents required for dealing with the SLP.
• As soon as necessary documents for the SLP are furnished, the Registrar shall direct an advocate from a panel of Supreme Court Legal Services Committee to be engaged for the petitioner, at the cost of the State. The fees of the advocate may be fixed by the Chief Justice. The SLP and corresponding documents will then be placed before the Court for hearing.

After the issuance of notice to the respondents and the filing of counter-affidavits by them, the Court proceeds to determine whether special leave is to be granted or not. If leave is granted, the Court will exercise its appellate jurisdiction, following which its decisions will be binding on both the parties and subordinate courts or tribunals.

Once leave to appeal is granted, the judgement, decree or order against which leave to appeal has been sought for is not automatically nullified. As per Order XVII, Rule 1 of the Supreme Court Rules, It continues to be effective between the parties until the Supreme Court passes a specific order staying or suspending its operation or expressly sets it aside.

'Special Leave Petitions' as discussed in case laws

• Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, AIR 2004 SC 1815: Art. 136 was defined as couching wide discretionary, plenary powers. No explicit words are laid down in the Article itself itself to guide when the jurisdiction thereunder must be exercised. As a result, exhaustive criteria cannot be laid down to guide the exercise of this jurisdiction. However, the existence of exceptional circumstances, or a question of law of general public importance, or a decision that shocks the conscience of the Court would warrant the invocation of the Court’s power.
• Pritam Singh v. The State, AIR 1950 SC 169: The Supreme Court held that to invoke its extraordinary jurisdiction under Art. 136, a case in question must show the existence of “exceptional and special circumstances” and the occurrence of “substantial and grave injustice.” The scope of “exceptional circumstances” and cases of “grave injustice” can be explained further in reference to the following types of cases:

- Where the impugned order, decree or judgement was passed with the improper application or non-application of a relevant law

- Where principles of natural justice have been violated

- Where the matter affects public interest

- Where the findings of the matter are shocking to the conscience of the court

Considering that the Court’s jurisdiction itself is discretionary under this Article, the relief that can be granted in a particular case is also discretionary. It can be moulded or restricted in any manner, in accordance with circumstances of a case, to advance the interests of justice.

• Dhakeshwari Cotton Mills Ltd. v. Commissioner of Income Tax, West Bengal, AIR 1955 SC 1815: The Supreme Court reiterated that “it is not possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested” in it under Art. 136 and that the limitations “are implicit in the nature and character of the power itself.” As the power is “exceptional and overriding” in nature, it has to be exercised “sparingly and with caution” in special, extraordinary circumstances. The Court additionally stated that if it found that a person has been dealt with arbitrarily in a matter or the matter affects public interest, leave cannot be refused on grounds of any technical or procedural defects. It highlighted the purpose of Art. 136 to ensure injustice is not perpetuated by decisions of courts or tribunals, even if deemed final and conclusive on the basis of certain laws.

• Mathai v. George, (2010) 4 SCC 358:Senior Advocate K.K. Venugopal suggested that Special Leave Petitions should be entertained only with respect to certain matters, as follows:

- All matters involving substantial questions of law relating to the interpretation of the Constitution

- All matters of national and public importance

- Validity of laws, Central and State

- After the pronouncement of Kesavananda Bharati v. State of Kerala, the judicial review of Constitutional amendments in accordance with the Basic Structure

- To settle differences of opinion between High Courts on important issues of law

- Where the Court is satisfied there has been a grave miscarriage of justice

- Where a Fundamental Right of a person has prima facie been violated.

Notwithstanding these suggestions, in Mathai v. George, (2016) 7 SCC 700, the Supreme Court refused to restrict the scope of its powers under Art. 136, stating, “it would be better to use the said power with circumspection, rather than to limit the power forever.”

• Satpal v. Union of India, (1997) 11 SCC 423: The Supreme Court does not grant special leave to appeal if the judgement or order passed by the Court below is neither perverse, illegal, nor based on incorrect appreciation of evidence, nor improper application of law. Mere technical lapses or errors in the decision of the Court below would not be sufficient to invoke the jurisdiction under Art. 136. If the Court feels as though substantial justice has been rendered to the parties by the order of the Court below, it will not interfere by way of SLP.

• Post Graduate Institute of Medical Research v. A.P. Wasan, AIR 2003 SC 1831: If the impugned order against which SLP has been sought has not been assailed at an earlier stage and may as far have been complied with by the appellant, it cannot be challenged at the stage of filing the SLP. In this case, an order passed by a Single Judge of the High Court was not assailed by the appellant before a Division Bench. The appellant eventually complied with the order, but subsequently filed an SLP and argued that the Single Judge’s order was illegal. The Supreme Court held that the case had attained finality upon the appellant’s compliance with the order and hence, could not be reopened using Art. 136.

• State of Uttar Pradesh v. Harish Chandra, AIR 1996 SC 2173: The Supreme Court may refuse to grant special leave, or may revoke leave already granted under Art. 136 if the appellant has not availed himself of alternative, available legal remedies, i.e., the right of revision or appeal before the court superior to the court passing the impugned decision. For instance, if a party, after receiving an order from a Single Judge of the High Court, does not appeal before a larger bench, the Supreme Court may not adjudicate on the matter by way of an SLP. This is not a bar on the Supreme Court’s jurisdiction, rather is a self-imposed limitation traditionally followed by the Court, which can be only deviated from under exceptional circumstances. For instance, if the appellant demonstrates violation of principles of natural justice, or that the appeal to the Supreme Court was based on a point of law that could not have been decided by an inferior court in an ordinary appeal, even an order of a Single Judge of a High Court can directly be admitted as a Special Leave Appeal.

• Madhukar D. Shende v. Tarabai Shedage, AIR 2002 SC 637: This case dealt with the issue of raising the plea of res judicata at the stage of an SLP. Res judicata is a principle which bars a cause of action that has already been judged on merits from being re-agitated. To determine whether a cause of action is barred by res judicata, a court would have to examine the facts of the matter and previous decisions relating to the same. Considering that the Supreme Court does not entertain questions relating to facts in SLPs, it was held in this case that the plea of res judicata cannot be raised in a Special Leave Appeal.

• Chief Commissioner, Ajmer v. Radhey Shyam Dani, AIR 1957 SC 304: Special leave petitions, as a rule, would not be allowed in matters where the relief sought has become nugatory owing to subsequent events, unless it is shown that notwithstanding the relief becoming nugatory, the judgement or order appealed against would still substantially prejudice the appellant.

• Nathu alias Paras Ram v. State of Rajasthan, 2007 Cr LJ 29 (SC): Where a convict seeks to apply for an SLP from jail, he must present it along with a copy of the impugned judgement under which he was convicted, which is to be supplied to him free of charge. The SLP is to be forwarded by the Superintendent of the Jail to the Registry of the Supreme Court, which must put the matter immediately before the Supreme Court. Accordingly, considering the facts and circumstances of the case, the Court may suspend the sentence or release the convict on bail.

• Pershadi v. State of Uttar Pradesh, AIR 1957 SC 211: In this case, the appellant was sentenced to imprisonment for life by the Sessions Judge of Aligarh for murdering a 6-year old. On appeal to the Allahabad High Court, the conviction was upheld, and the case was certified as a fit one for appeal before the Supreme Court. Before the Supreme Court, the State made a preliminary objection that the appeal was not maintainable as the High Court’s certificate of leave was defective. The Supreme Court held that notwithstanding the grant of a defective certificate by the High Court, or even in the case of a certificate of leave not being granted by the High Court, it still had the power to take up the matter on appeal under Art. 136.

• Madamanchi Ramappa v. Muthaluru Bojappa, AIR 1963 SC 1633: Appeal by special leave was directed against the decision of a Single Judge of the Andhra Pradesh High Court. Under Art. 133(3) of the Constitution, no civil appeal can lie to the Supreme Court from a judgement, decree or final order passed by a Single Judge of a High Court. However, in a case where the petitioners satisfy the Supreme Court that in dealing with a second appeal, the High Court has interfered with questions of fact and has contravened S. 100 of the Civil Procedure Code, which only permits dealing with substantial questions of law in a second appeal, the Supreme Court can take the matter on special leave appeal under Art. 136.

• Rajamanicka v. Dharmraj, AIR 1980 SC 493: It was held that the Supreme Court can entertain an SLP even after a second appellate decision has been passed, if the concerned High Court remanded the matter without pointing out which relevant considerations had been ignored or which irrelevant considerations were taken into account by the first appellate court.

• Sourindra Mohan Hazra v. State of West Bengal, AIR 1982 SC 1193: It was held that if the High Court passed a decree on the second appeal ex-parte (in the absence of the respondent) and the Supreme Court finds sufficient cause for the absence of the respondent, it can entertain the matter by way of SLP.

• Pawan Kumar v. State of Haryana, AIR 2003 SC 2987: In a matter whether a flagrant violation of statutory provisions or disregard of Constitutional safeguards is found, the Supreme Court’s use of its powers under Art. 136 is not discretionary, but becomes a duty or obligation.

• Jaswant Sugar Mills Ltd. v. Laxmichand, AIR 1963 SC 677: A dispute arose between the workers of Jaswant Sugar Mills and the company controlling the mills. While the dispute was pending before the Industrial Tribunal, the company wanted the agitating workers to be dismissed. Owing to the pendency of the dispute before the Tribunal, the permission of the Conciliation Officer was required to discharge any workers. The Officer granted the Company permission to discharge some workers. Special leave to appeal was sought against the direction of the Conciliation Officer. The Supreme Court held that the Conciliation Officer did not constitute a tribunal or court within the meaning of Art. 136, as it was not the function of the Conciliation Officer to deliver definite judgements or awards affecting the rights of parties. Accordingly, the appeal was dismissed.
• Delhi Administration v. Madan Lal Nangia, AIR 2003 SC 4672: Where the Supreme Court summarily dismisses an SLP in limine (at the very threshold, without looking into its merits) by refusing to grant leave, the bar of res judicata would not be operative if the issues in the dismissed SLP are subsequently brought up again on appeal. This is because the dismissal in limine neither affirms nor disapproves of the legal findings of the order challenged.
• Arunachalam v. P.S.R. Sadhanantham, AIR 1979 SC 1284: The Supreme Court laid down some exceptional circumstances under which questions of fact could be entertained in an SLP. For instance, if the acquittal of an accused is found to have been based on irrelevant grounds, or where the High Court passing the order challenged in the SLP has ignored crucial or vital evidence, issues of fact relating to the same can be looked into by the Supreme Court.

Databases relating to 'Special Leave Petitions'

The total number of civil and criminal Special Leave Petitions pending before the Supreme Court as of March 15th, 2024, are currently recorded on the National Judicial Data Grid, the statistics for which are shown below.

Number of SLPs pending in the Supreme Court:

The total number of civil cases pending in the Supreme Court as of 15th March 2024, including SLPs in civil matters

The total number of criminal cases pending in the Supreme Court as of 15th March, 2024, including SLPs in criminal matters

Rates of Institution and Disposal of SLPs in Civil Matters (2018 onwards):

The green line graph shows the number of civil SLPs instituted and the red line graph shows the number of civil SLPs disposed of

Rates of Institution and Disposal of SLPs in Criminal Matters (2018 onwards):

The green line graph shows the number of criminal SLPs instituted annually and the red line graph shows the number of criminal SLPs being disposed annually.

Research that engages with 'Special Leave Petitions'

• Special Leave under Article 136 of the Constitution and keeping the question of law open: This article discusses, among various other things, the evolution of Art. 13 and the scope and limitations on the exercise of the jurisdiction under Art. 136. The author largely focuses on the appropriateness of the Supreme Court's practice of keeping a question of law open to be dealt with at a future stage, even when dismissing the SLP dealing with that particular question of law, considering that the Supreme Court is the final appellate authority in the Indian judicial system.

• Dismissal of SLP under Article 136 at Preliminary Stage - Whether Immune from Passing of Speaking Orders?: This article discusses the Doctrine of Merger and its applications to orders passed in SLPs. There is particular focus on whether the dismissal of an SLP by a "non-speaking order" (wherein no reasons are provided for the refusal of grant for leave to appeal) creates law that is binding on subordinate courts under Art. 141 and affirms the order challenged by way of the SLP.

• Opening the SLP Floodgates Impacts Access to Justice: This article discusses the problems that the Supreme Court has faced in exercising its extraordinary jurisdiction under Art. 136. It has been observed that the requirement that a matter must show "exceptional and special circumstances" or the suffering of "substantial and grave injustice" on the petitioner's part to warrant the grant of special leave is a highly subjective and vague standard. This is coupled with the fact that there is no definite criteria laid down in Art. 136 regarding what type of cases can be entertained, which in turn has led to the SLP route being misused to initiate frivolous litigation and unnecessarily increase Supreme Court's workload. In light of the same, the authors have suggested the following measures to reduce the Court's workload:

- Appointment of more judges to the Supreme Court

- The creation of separate appellate courts to deal with SLPs, thus allowing the Supreme Court to focus on its primary role as a Constitutional Court. This is based on the opinions of Justice P.N Bhagwati, laid down in the case of Bihar Legal Support Society v. The Chief Justice of India, suggesting that a National Court of Appeal be created to specifically deal with constitutional and public matters on special leave.

- Formulate strict criteria to help filter out frivolous or arbitrary petitions.

• Special Leave Petitions, An Impediment to Justice: Need for Structural Changes to Ensure Efficient Time Allocation of the Court: The authors of this article have suggested various measures to help tackle the issue of frequent filing of SLPs and its role in increasing the Supreme Court's workload. They have suggested the creation of a body or board constituted by legal experts, former Supreme Court judges and senior advocates of the Supreme Court, with the objective of analysing SLPs prior to their being filed before the Supreme Court. The Board would receive applications for proposed SLPs and review the same on procedural grounds for technical errors. If such errors are not rectified, the SLP cannot proceed to be heard by the Supreme Court. If the Board finds the SLP to be frivolous in nature, it may deny the filing of the same before the Court and fine the petitioner. The creation of such a Board can be legally validated by amending the Supreme Court Rules.

Comparatives in international jurisdictions

Australia:

In Australia, the High Court is at the apex of the judicial system. S. 35 and 35A of the Judiciary Act, 1903 prescribe the grant of special leave to appeal to the High Court.

Formerly, at the establishment of the Commonwealth in Australia, an appeal would lie from the Supreme Court of a state (i.e., the highest court in a state) to the Privy Council, provided the Privy Council exercised its prerogative by advising the monarch to grant or refuse special leave to appeal. To avail leave of appeal, an applicant needed to show an arguable case of public or general importance.

The Judiciary Act enacted in 1903, provided under S. 35(1) that the appellate jurisdiction of the High Court should extend to the judgements of the Supreme Court of a State or any other court of a State, from which, at the establishment of the Commonwealth, an appeal lay to the Privy Council. S. 35 was amended in 1976, whereby a right to appeal to the High Court from a final judgement of the Supreme Court of a State was prescribed for any claim valued at $20,000 or more.

For all other types of cases, no appeal was to be brought from the Supreme Court of a State to the High Court unless special leave to appeal was granted for the same. However, an appeal would lie before the High Court as a right from a final judgement of a Supreme Court if the appeal dealt with the interpretation of the Constitution.

In 1984, S. 35 was replaced with a new S. 35 and 35A, which continue to be in force. It is provided thereunder that an appeal shall not be brought from the Supreme Court of a State before the High Court unless the High Court grants special leave to appeal.

S. 35A provides that in considering grant of special leave to appeal, the High Court shall consider whether the proceedings involve a question of law that is:

• Of public importance, or
• Entails differences of opinion between different courts or within one court, which the High Court, as the final appellate court, is required to resolve

This is largely similar to the considerations the Supreme Court of India takes into account to grant special leave to appeal under Art. 136. Akin to the Supreme Court’s iteration of the fact that special leave is to be granted in extraordinary circumstances, the Australian High Court emphasised that the purpose of the requirement of special leave is to filter out those cases unworthy of its attention, because it has insufficient prospects of success or lacks general importance. Through such a mechanism, the Court makes better use of its resources.

Similar to SLPs in India, while there is no explicit bar against the grant of special leave to appeal in interlocutory proceedings, the Australian High Court only grants special leave in interlocutory proceedings under rare circumstances, notwithstanding the fact that the matter itself may be of general importance.

South Africa:

In the South African judicial system, S. 17(3) of the Superior Courts Act provides for an application for special leave to appeal to the Supreme Court of Appeal (SCA). Hereunder, if an appeal deals with a substantial point of law, or the matter is of great importance to the parties or the public, or where the prospects of success on appeal are very strong, such that refusal to grant leave to appeal would result in a denial of justice, leave is granted to appeal before the SCA. In the case, National Union of Metalworkers of South Africa & Ors. v. Fry’s Metals (Pty.) Ltd., 2005 (5) SA 433 (SCA), the SCA held that the existence of a reasonable prospect that the decision of a court below will be reserved is not by itself sufficient to avail special leave; the applicant must establish any other additional factor or criterion, as listed above.