7/11/22, 4:29 PM Article 136 of the Indian Constitution - iPleaders

Article 136 of the Indian Constitution

By Rachit Garg - July 6, 2022

This article has been written by Mehernaz Contractor of Siddharth Law College, Mumbai.
This article provides a detailed view of article 136 of the Indian Constitution. It deals
with the discretionary powers of the Supreme Court.

It has been published by Rachit Garg.

Table of Contents 
1. Introduction 
2. What is a special leave petition 
2.1. Question of law
2.2. Time limit for filing a special leave petition
2.3. Requirements for filing a special leave petition
3. What tribunals are allowed to grant a special leave petition 
4. Special leave petition in civil cases 
5. Special leave petition in criminal cases 
6. Role of Supreme Court in granting special leave petition 
7. Landmark judgments on special leave petitions
8. Conclusion
9. Frequently Asked Questions (FAQs)
9.1. What is the position of contempt petition in the high court if an SLP has been filed in
the supreme court but no stay has been granted by the supreme court?
9.2. How can one know whether the special leave petition (SLP) has been filed or not
against any High court judgment? If it is not filed within 90 days from the date of judgment,
does SLP still exist against a particular judgment?
9.3. Is it possible to withdraw a special leave petition after it has been admitted by the
Supreme Court?
9.4. Can a private party file an appeal under Article 136?
9.5. Can a special leave petition be filed in the Supreme Court for the infringement of
fundamental rights?
10. References  

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Introduction 
Chapter IV of Part V of the Constitution of India, titled “The Union Judiciary,” contains the
functions, jurisdiction, and powers of the Supreme Court of India. Due to some reasons,
a person might not be satisfied with the judgment given by the High Court of a particular
state. For such cases, Article 136 of the Indian Constitution can prove to be a remedy.
The apex court of India deals with appeals that are covered under Article 136. This
article provides the right to apply for an appeal and not the right to appeal. This Article
does not limit itself to a particular type of case only. After looking at the facts and
circumstances of the case, the Supreme Court will decide whether to grant a special
leave petition (SLP) or not. Article 136 was earlier incorporated as Draft Article 112 of
the Indian Constitution. 

What is a special leave petition 

The expression “special leave to appeal” was taken from the Government of India Act,
1935. A special leave petition provides the aggrieved party special permission to be
heard in the Apex court against any judgment, decree, order, determination, or sentence
of the court or tribunal in the territory of India. A special leave petition does not apply to
cases heard in a military court or court-martial. This exception was taken from the
Constitution of the UK. A special leave petition is not a right that is guaranteed to the
citizens of India, but it is a privilege that is granted to the Supreme Court by the
Constitution of India. Article 136 applies to both final and intermediary orders. SLP can
also be filed if the high court refuses to grant a certificate of fitness for appeal under
Article 134A of the Indian Constitution to the Supreme Court of India. 

Question of law
A question of law means a point in law that is to be answered by the judge by applying
legal principles. If the Supreme Court dismisses the special leave petition by a speaking
or non-speaking order, then it cannot leave the question of law open for future
consideration. The discretionary power of the Supreme Court under Article 136 is ended
when the petition is rejected. New grounds for a case cannot be added under the special
leave petition if it was not introduced earlier in the case. But this got reversed in the
case of Shri Saurav Jain & Anr. v. M/s A.B.P. Design & Anr (2021). The Supreme Court
held that new grounds can be added for the first time if the case involves a question of
law.

Time limit for filing a special leave petition

A special leave petition must be filed within 90 days from the date of judgment, or it
must be filed within 60 days against the order of the High Court refusing to grant the
certificate of fitness for appeal to the Supreme Court. 

Requirements for filing a special leave petition

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A special leave petition must contain all the facts necessary for the Supreme Court to
decide whether it should grant the SLP or not. 

The petition has to be signed by the Advocate on Record (AoR).

There should be a declaration by the petitioner stating that there is no other petition
filed in the high court. 

There should be a declaration by the petitioner stating that the annexures produced
along with the SLP are true copies of the pleadings which were presented in the lower
courts.

The special leave petition must be attached with the judgment against which the
appeal is to be filed.

What tribunals are allowed to grant a special leave

petition 
Generally, the Supreme Court is the only body that is allowed to grant a special leave
petition, but sometimes tribunals recognized by the law can also grant SLP. These
tribunals must possess the power to resolve legal issues that can arise among the
citizens of India. These tribunals must have the same powers that a court possesses, like
calling a witness, examining the witness on oath, reviewing the evidence, and much
more.

Special leave petition in civil cases 

The scope of Article 136 is much wider in civil cases. The procedure for filing special
leave petitions in civil cases is contained in Order XXI of the Supreme Court Rules, 2013.
Form No. 28 is required to be filed before the Supreme Court for filing SLP. The list of
dates in chronological order with events related to the date must be attached. If the
petitioner wants to present some documents which were not a part of the records of the
lower courts, he must state the reasons as to why the documents were not produced
before and why he wants to present them in this petition. The English version of the
relevant provisions of the Constitution, statutes, ordinances, rules, regulations, bye-
laws, orders, etc., referred to in the impugned judgment or order shall be filed as an
appendix to the special leave petition. If notice is served on the SLP, the petitioner must
serve the notice to the respondent. The petition must contain a certified copy of the

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judgment against which the appeal is to be made and an affidavit stating that the facts
presented are true to the knowledge of the petitioner.

Special leave petition in criminal cases 

It was stated in Ganga Kumar Srivastava v. The State Of Bihar (2005) that the Supreme
Court must not interfere in findings of fact except in special circumstances. The
principles governing the inference by the Supreme Court in criminal appeals by special
leave were stated in Dalbir Kaur & Ors v. State Of Punjab (1976) as below:

The Supreme Court must not interfere with the findings of fact, even if the Supreme
Court has different views on the evidence.

The Supreme Court will not review the evidence unless the high court has made an
error in the process of law.

The Supreme Court will interfere in cases where the high court has violated the
principles of natural justice or has acted in violation of the provisions of the law.

The Supreme Court must also interfere in cases where the high court has inferred
wrong conclusions from the evidence.

The procedure for filing special leave petitions in civil cases is contained in Order XXII of
the Supreme Court Rules, 2013. Where the petitioner has been sentenced to a term of
imprisonment, the petition of appeal shall state whether the petitioner has surrendered
and if he has surrendered, then the petitioner shall, by way of proof of such surrender,
file the certified copy of the order of the court in which he has surrendered or a
certificate of the competent officer of the jail in which he is undergoing the sentence. If
the petitioner is in jail and is not represented by an advocate, he can present his special
leave petition to the officer in charge of the jail.

Role of Supreme Court in granting special leave

petition 
Article 136 of the Indian Constitution grants discretionary powers to the Supreme Court
of India to allow special leave petitions. The Supreme Court can use this power in
exceptional circumstances and when a question of law arises. Article 136 only applies to
judicial decisions. It does not apply to purely executive or administrative decisions. The
Supreme Court, while granting a special leave petition, relies upon the facts that are
presented to it by the petitioner. So, the petitioner must not mislead the court by giving
improper facts. If the court becomes aware that the presented facts were misleading, it
can revoke the appeal granted to the petitioner. A similar situation happened in the case
of Rajabhai Abdul Rehman Munshi v. Vasudev Dhanjlbhai Mody (1963). The Supreme
Court can also exercise its discretionary power to refuse to grant special leave of
petition. It must exercise its power when there is a gross miscarriage of justice. 

Article 136 is divided into two stages:

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1. The court, while hearing the petition for special appeal to leave, will see whether the
petitioner should be granted such leave or not. The court is exercising its discretionary
power to grant or not grant the appeal to leave.

2. If the petition is granted, the special leave petition will be converted into an appeal,
so the court will exercise its appellate jurisdiction to decide the case.

The Supreme Court, while exercising its appellate jurisdiction, may reverse, modify or
affirm the judgment of the lower court. The Supreme Court’s decision will be merged
into the decision of the High Court. The Supreme Court can reject the petition with a
speaking or non-speaking order. The speaking order will contain reasons as to why the
Supreme Court rejected the petition.  

Landmark judgments on special leave petitions

In the case of Pritam Singh v. The State (1950), it was held that the Supreme Court
should not interfere with the decisions of the High Court unless exceptional
circumstances exist. Once the appeal is admitted, the appellant can question every
point of law considered wrong by the High court. A uniform standard should be
adopted by the court while granting special leave to appeal.

In the case of Smt. Tej Kumari v. CIT (2000), it was held that when a special leave
petition is dismissed, the court does not comment on the correctness or otherwise of
the order from which leave to appeal is sought. The doctrine of merger does not apply
in the case of the dismissal of a special leave petition under Article 136. 

In the case of N. Suriyakala v A. Mohandoss & Ors (2007), it was held that Article 136
of the Constitution is not a regular forum of appeal at all. The court can interfere to
exercise its discretionary power under the Article. It does not confer a right to appeal
on a party to the litigation; it only confers a discretionary power of widest amplitude
on the Supreme Court to be exercised for satisfying the demands of justice. 

In the case of Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai (2005),
it was held that the Supreme Court must exercise its powers under Article 136 only in
exceptional circumstances, when a question of law of public importance arises. 

Conclusion
Special leave petitions provide residuary power in the hands of the Supreme Court. It is
upon the discretion of the court to grant such a petition or not. An SLP must be filed
within the limitation period mentioned in the Supreme Court Rules. Special leave
petitions are granted so that justice is granted if the lower court has failed to consider
some evidence or the court did not use fair means in concluding the case. Special leave
petitions can be granted in both civil and criminal cases, but the Supreme Court must
exercise extra care and skill in deciding criminal cases. The Supreme Court must not
interfere unless the due process of law has been violated by the courts.

Frequently Asked Questions (FAQs)

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What is the position of contempt petition in the high

court if an SLP has been filed in the supreme court but
no stay has been granted by the supreme court?
Answer. The High court can initiate the contempt proceedings in the absence of a stay
order in SLP by the Supreme Court depending upon the facts and circumstances of the
case. 

How can one know whether the special leave petition

(SLP) has been filed or not against any High court
judgment? If it is not filed within 90 days from the date
of judgment, does SLP still exist against a particular
judgment?
Answer. One must check the official website of the Supreme Court to see whether the
SLP was filed or not. SLP can be filed even after 90 days from the date of judgment if the
reasons for the delay were presented to the court and the court is satisfied with the
reasons mentioned along with the SLP.

Is it possible to withdraw a special leave petition after it

has been admitted by the Supreme Court?
Answer. The special leave petition can be withdrawn after it has been admitted by the
Supreme Court if valid reasons were presented to the court. It will be assumed by the
court that the petitioner has exhausted all its remedies concerning the cause of action
mentioned in the SLP.

Can a private party file an appeal under Article 136?

Answer. It was held in the case of Ramakant Rai v. Madan Rai and Ors that a private
party can file an appeal under Article 136 if there has been some error in the decision of
the High court and the state has made no appeal against such errors of the High court.

Can a special leave petition be filed in the Supreme

Court for the infringement of fundamental rights?
Answer. No, a special leave petition cannot be filed in the Supreme Court for the
infringement of fundamental rights. A writ petition must be filed under Article 32 of the
Indian Constitution for infringement of fundamental rights. 

References  

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7/11/22, 4:29 PM Article 136 of the Indian Constitution - iPleaders

​https://ssrana.in/litigation/special-leave-petition-india/slp-special-leave-petition-
filing-supreme-court/

https://www.legalserviceindia.com/legal/article-1494-how-to-file-special-leave-
petition-slp-in-the-supreme-court-of-india.html

https://www.lawinsider.in/columns/special-leave-petition-a-unique-mechanism

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