S.S.

JAIN SUBODH LAW COLLEGE

MANSAROVER, JAIPUR

SESSION:- 2020-21
TOPIC:- Election of President of India
and Related Case laws
SUBJECT:- Constitutional Law

Submitted to :- submittedby:-
Mrs.Anjali Bhatia Mujassim Anwar
Assistant Professor Khan
(Constitutional Law) Semester :- 2nd B
 CERTIFICATE

Faculty

S.S. JAIN SUBODH

LAW COLLEGE

MANSAROVER,JAIPUR

This is to certify that Mujassim Anwar Khan, student of II semester,

Section B has carried out project titled Election of the President of
India and Related Case Laws under my supervision. It is an
investigation of a minor research project. The student has completed
research work in stipulated time and according to norms prescribed for
the purpose.

Mrs. Anjali Bhatia

(Assistant Professor)
 ACKNOWLEDGEMENT

I would like to express my gratitude to those who generously took

initiative and helped in the successful completion of this project. I thank
to them for their inspiration & guidance towards preparation of this
report. I own to my esteemed teacher and supervisor, respected Dr.
Alpana Sharma, Director, S.S. Jain Subodh Law College, Mansarover
Jaipur, and I am highly indebted and my profound gratitude to Mrs. Anjali
Bhatia (Faculty), S.S. Jain Subodh Law College, Mansarover Jaipur, who
enabled me to make a project, and provided me their stimulus of writing
this report on Election of the President of India and Related Case
Laws. I am grateful to (faculty), S.S. Jain Subodh Law College, Mansarover
Jaipur , for her valuable advice, continuous support & guidance through
various useful discussions at different times during the tenure of making
this project and her co-operation led to great learning experience to me.

I also thanks to Library members of S.S. Jain Subodh Law College,

Mansarover Jaipur for providing me subject matter in regard to my
research project. My humble thanks to all my colleagues and classmates
of my college, who rendered their whole hearted co-operation and
wonderful response.

(Signature of Student
 Table of Content

Table of content page no.

1. Introduction 6

2. Scope and extent of the jurisdiction 7-10

3. Legislative enactments cannot take away SLP 11-12

4. Conditions required by invoking jurisdiction 12

5. Judicial Interpretation 13-14

6. Bibliography 15
INTRODUCTION

Supreme Court of India has been given extraordinary jurisdiction under Article 136 of the
Constitution. By virtue of this Article, the court can 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. There is no limit, as in other Articles where it is
provided that an appeal can lie only from a judgment, decree or final order. Even from
interim orders, leave to appeal is permissible. Whereas under other Articles, appeals lie to the
Supreme Court from the High Courts, there is no such restriction in Article 136 and appeals
lie from any court or tribunal in the territory of India. The only restriction imposed is
contained in sub-clause (2) of the Article. Article 136 reads as follows:

136. Special leave to appeal by the Supreme Court1-

(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."

Special Leave Petitions in India (SLP) holds a prime place in the Judiciary of India, 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 provides the aggrieved party a special permission to be heard in Apex court in appeal
against any judgment or order of any Court/tribunal in the territory of India (except military
tribunal and court martial) 2

The Constitution of India under Article 136 vests the Supreme Court of India, the apex court
of the country, 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.

1
Constitution of India, Bare Act
2
www.legalservicesindia.com
SCOPE AND EXTENT OF THE JURISDICTION OF THE COURT UNDER
ARTICLE 136

Since its establishment, the Supreme Court has defined the scope of its jurisdiction whenever
opportunity arose. It has laid down the limits within which it would exercise its powers under
this Article. Though the are unlimited, the Court has always tried to exercise the same within
the ambit of certain principles. It has by and large followed the practice of the Privy Council
and the Federal Court in this regard.3

The principles for granting special leave to appeal were very succinctly laid down by the
Federal Court in Kapildeo Singh v. King Emperor. The Federal Court discussed the various
decisions of the Privy Council and stated:

"Though this Court is no longer bound by the principles which have been laid down by it
defining the limits within which interference with the course of criminal justice dispensed in
the subordinate Courts is warranted and to remove all misapprehensions on the subject, it
would be useful to refer to some of the cases in which those principles have been enunciated
and explained"

The Court inter alia laid down the following propositions of law:

1. Leave to appeal in criminal cases could only be given where some clear departure from the
requirements of justice is alleged to have taken place.

2. The criminal proceedings would not be reviewed unless it be shown that by a disregard of
the forms of legal process or by some violation of the principles of natural justice or
otherwise substantial and grave injustice has been done.

3. The exercise of prerogative takes place only where it is shown thatinjustice of a serious
and substantial character has occurred. A mere mistake on the part of the courts below, as for
example, in the admission of improper evidence, will not suffice if it has not led to injustice

3
Dr. J.N. Pandey, Constitution of india
of a grave character. Interference is not advised even if a different view of evidence is
possible.

4. In a criminal appeal brought by special leave, the Court is not concerned with formal rules,
but only with the question whether there has been a miscarriage of justice.

5. To interfere with a criminal sentence there must be something so irregular or so outrageous

as to shock the very basis of justice and misdirection as such, even irregularity as such, will
not that suffice and that there must be something which in the particular case deprives the
accused of the substance of fair trial and the protection of the law.

In Pritam Singh v. States4, the Supreme Court laid down the broad principles within which it
would exercise its jurisdiction in granting special leave under this Article. The Court
observed:

"On a careful examination of Article 136 along with the preceding article, it seems clear that
the wide discretionary power with which this Court is invested under it is to be exercised
sparingly and in exceptional cases only, and as far as possible a more or less uniform
standard should be adopted in granting special leave in the wide range of matters which can
come up before it under this article. By virtue of this article, we can grant special leave in
civil cases, in criminal cases, in income tax cases, in cases which come up before different
kinds of tribunals and in a variety of other cases. The only uniform standard which in our
opinion can be laid down in the circumstances is that the Court should grant special leave to
appeal only in those cases where special circumstances are shown to exist.

The Privy Council have tried to lay down from time to time certain principles for granting
special leave to criminal cases, which were reviewed by the Federal Court in Kapildeo v. The
King, (supra). It is sufficient for our purpose to say that though we are not bound to follow
them too rigidly since the reasons, constitutional and administrative which sometimes
weighed with the Privy Council, need not weigh with us, yet some of those principles are

4
www.indiankanoon.org
useful as furnishing in many cases a sound basis for invoking the discretion of this Court in
granting special leave. Generally speaking, this Court will not grant special leave, unless it is
shown that exceptional and special circumstances exist, that substantial and grave injustice
has been done and that the case in question presents features of sufficient gravity to warrant a
review of the decision appealed against."5

The overriding 'nature of the power exercised by the Supreme Court under Article 136 and
limitations implicit in its exercise were discussed in Dhakeswari Cotton Mills Ltd. v.
Commissioner of income Tax. The Court observed:

"It is not possible to define with any precision the limitations on the exercise of the
discretionary jurisdiction vested in this Court by the constitutional provision made in Article
136. The limitations, whatever they be, are implicit in the nature and character of the power
itself. It being an exceptional and overriding power, naturally it has to be exercised sparingly
and with caution and in special and extraordinary situations.

Beyond that it is not possible to fetter the exercise of this power by any set formula or rule.
All than can be said is that the Constitution having trusted the wisdom and good sense of the
Judges of this Court in this matter, that itself is a sufficient safeguard and guarantee that the
power will only be used to advance the cause of justice and that its exercise will be governed
by well-established principles which govern the exercise of overriding constitutional powers.

It is, however, plain that when the Court reaches the conclusion that a person has been dealt
with arbitrarily or that a Court or tribunal within the territory of India has not given a fair deal
to a litigant, then no technical hurdles of any kind like the finality of finding of facts or
otherwise can stand in the way of the exercise of this power because the whole intent and
purpose of this Article is that it is the duty of this Court to see that injustice is not perpetrated
or perpetuated by decisions of Courts and tribunals because certain laws have made the
decisions of these Courts or tribunals final and conclusive."
5
Blog.ipleaders.in
The purpose and scope of Article 136 was discussed by a Bench of five Judges in Bihar Legal
Support Society v. Chief Justice of India, where the Court observed:

It may, however, be pointed out that this Court was never intended to be a regular court of
appeal against orders made by the High Court or the sessions court or the magistrates. It was
created as an Apex Court for the purpose of laying down the law for the entire country and
extraordinary jurisdiction for granting special leave was conferred upon it under Article 136
of the Constitution so that it could interfere whenever it found that law was not correctly
enunciated by the lower courts or tribunals and it was necessary to pronounce the correct law
on the subject. This extraordinary jurisdiction could also be availed by the rt for the purpose
of correcting grave miscarriage of justice, but such cases would be exceptional by their very
nature.

It is not everyCase where the Apex Court finds that some injustice has been done that it
would grant special leave and interfere. That would be converting the Apex Court into a
regular court of appeal and moreover, by so doing Apex Court would soon be reduced to a
position where it will find itself unable to remedy any injustice at all on account of the
tremendous backlog of cases which is bound to accumulate."6

As already observed, the Court exercises jurisdiction under Article 136 in a variety of cases.
The general principles discussed above apply in all cases, but it may be useful to highlight the
approach of the Supreme Court with reference to particular illustrative subject matters.

6
www.livelaw.in
A Legislative Enactment Cannot Override or Take Away Powers of The
Supreme Court Under Article 136 of The Constitution

In some Acts such as the Industrial Disputes Act, 1947, Representation of the People Act,
1951 etc., provision has been made that the order or decision of the Tribunal would be "final
and conclusive" It was contended that the Supreme Court will have no power to hear an
appeal against such an order under Article 136. The Court has negatived such a contention.
The Court has held that it enjoys the power by virtue of the Constitution and nothing short of
an amendment in the Constitution can curtail that power.

In Durga Shanker Mehta v. Thakur Raghuraj Singh, the Supreme Court observed:

"It is well known that an appeal is a creature of statute and there can be no inherent right of
appeal from any judgment or determination unless an appeal is expressly provided for by the
law itself. The powers given by Article 136 of the Constitution however are in the nature of
special or residuary powers which are exercisable outside the purview of ordinary law, in
cases where the needs of justice demand interference by the Supreme Court of the land. The
Article itself is worded in the widest terms possible. It vests in the Supreme Court a plenary
jurisdiction in the matter of entertaining and hearing appeals, by granting of special leave,
against any kind of judgment or order made by a court or tribunal in any cause or matter and
the powers could be exercised in spite of the specific provisions for appeal contained in the
Constitution or other laws. The Constitution for the best of reasons did not choose to fetter or
circumscribe the power exercisable under this article in any way. Section 105 of the
Representation of the People Act certainly gives finality to the decision of the Election
Tribunal so far as that Act is concerned and does not provide for any further appeal but that
cannot in any way cut down or affect the overriding powers which this Court can exercise in
the matter of granting special leave under Article 136 of the Constitution."7

These cases should be distinguished from the cases where the bar to entertain an appeal from
the order or decision of a particular tribunal has been provided in the Constitution itself, (for

7
Dr. J.N. Pandey, Constitutional Law of India
instance Article 329). This distinction has been brought out in detail in Meghraj Kothari v/s
Delimitation Commissioner, where the Court observed:

In this case we are not faced. with that difficulty because the Constitution itself provides
under Article 329(a) that any law relating tothe delimitation of constituencies etc. made or
purporting to be made an order under s. 8 or 9 and published under Section 10(1) would not
be saved merely because of the use of the expression "shall not be called in question in any
court". But if by the publication of the order in the Gazette of India it is to be treated as law
made under Article 327, Article 329 would prevent any investigation by any court of law."

It has recently been held by the Supreme Court that the provisions of Article 136 form a part
of the basic structure of the Constitution.21 In that view of the matter, it may not be open for
the Legislature to take away the jurisdiction of the Supreme Court under Article 136, even by
a Constitutional amendment.

CONDITIONS REQUIRED FOR INVOKING JURISDICTION UNDER

ARTICLE 136

A reading of Article 136 would indicate that unless the following conditions are satisfied, the
Court will not interfere under Article 136 of the Constitution

(1) The proposed appeal must be from any judgment, decree, determination, sentence or
order, that is to say, it must not against a purely executive or administrative order. If the
determination or order giving rise to the appeal is a judicial or quasi-judicial determination or
order, the first condition is satisfied. It may be in any cause or matter.

(2) That the said determination or order must have been made or passed by any Court or
Tribunal in the territory of India.
JUDICIAL INTERPRETATION

A Bench of the Supreme Court in R.N. Gosain v. Yashpal Dhir, took a view that if a tenant
before the High Court had given an undertaking to vacate the premises, he was foreclosed
from exercising his option to prefer a petition under Article 136 of the Constitution. The said
view was doubted by a co-ordinate Bench of the Supreme Court in Prashant Ramachandra
Deshpande v. Maruti Balaram Haibath, and the matter was referred to a three-Judge Bench.
The three-Judge Bench held that an appeal filed under Article 136 cannot be dismissed as not
maintainable on the mere ground that the appellant has given an undertaking to the High
Court on being so directed in order to keen the High Court's order in abeyance for some
time.8

Jurisdiction under Article 136 is of extraordinary nature and granting of leave is a purely
discretionary power. While granting special leave, the Court generally relies upon the
statement made by the petitioner in the special leave petition. It is, therefore, of utmost
importance that the statement made in the special leave petition should be true and correct
and no attempt should be made to mislead the Court. No material fact should be suppressed.
Whenever it has been brought to the notice of the Court that some material facts have been
suppressed or that the Court has been misled by the petitioner, the Court has not hesitated to
revoke the special leave granted even at the time of the hearing of such an appeal. In Hari
Narain v/s Badri Das, the Court observed:

"It is of utmost importance that in making material statements and setting forth grounds in an
application for special leave, care must be taken not to make any statements which are
inaccurate, untrue or misleading. In dealing with applications for special leave, the Court
naturally takes statements of fact and grounds of fact contained in the petitions at their face
value and it would be unfair to betray the confidence of the Court by making statements
which are untrue and misleading."

In R.A. Rehman Munshi v. V.D. Modi9, the Court observed:

"A party who approaches this Court invoking the exercise of this overriding discretion of the
Court must come with clean hands. If there appears to be any attempt to overreach or mislead
the Court by false or untrue statement or by withholding true information, which would have
8
www.legalservicesindia.com
9
www.indiankanoon.org
a bearing on the exercise of the discretion, the Court would be justified in refusing to exercise
the discretion or if a discretion has been exercised, in revoking the leave to appeal granted
even at the hearing of the appeal"

The question that arose for consideration in some cases before the Court was whether orders
made by a High Court on the administrative side would amenable to jurisdiction under
Article 136. In Dev Singh v. Registrar Punjab and Haryana High Court, the Court observed:

There is clear distinction between the courts of law exercising judicial powers and other
bodies. The decisions by courts are clearly judicial. That is not the case with bodies
exercising administrative or executive powers. In certain matters even the Judges have to act
administratively and in doing so, they have to act quasi-judicially in dealing with the matters
entrusted to them. It is only where the authorities are required to act judicially either by
express provisions of the statute or by necessary implication that the decisions of such an
authority would amount to a quasi-judicial proceeding. When Judge in exercise of their
administrative functions decide cases, it cannot be said that their decisions ate either judicial
or quasi-judicial decisions.

In S.M.Newade v. C.J. Bhadke, the Court held that if there was an untrue averment regarding
material statements or a false statement on a matter of importance or a deliberate untrue
statement regarding valuation has been made to mislead the Court, then the special leave
grant can be revoked. In the particular facts of this case, however, the Court held that the
mistake was not deliberate as the special leave petition was drafted on the basis of the
valuation given in the judgment of the High Court itself, which was corrected long
afterwards.

The Court has held that were the petitioner's senior counsel before the High Court, made
certain concessions and further did not press the grounds in the application, the filing of the
special leave petition without disclosure of the fact would amount to suppression of facts and
would disentitle the Petitioner from receiving relief under Article 136 of the Constitution.
BIBLIOGRAPHY

Websites

1. www.legalservicesindia.com

2. blog.ipleaders.in

3. www.livelaw.in

4. www.indiankanoon.org

Books

1. Constitution of India, Bare Act

2. Dr. J.N. Pandey, Constitutional law of India