ARTICLE 136 OF THE

CONSTITUTION
 132. Appellate jurisdiction of Supreme Court in appeals from High

Courts in certain cases.

(1) An appeal shall lie to the Supreme Court from any judgment, decree or

final order of a High Court in the territory of India, whether in a civil,

criminal or other proceeding, [if the High Court certifies under article 134A]

that the case involves a substantial question of law as to the interpretation of

this Constitution.

(3) Where such a certificate is given, any party in the case may appeal to the

Supreme Court on the ground that any such question as aforesaid has been

wrongly decided.

133. Appellate jurisdiction of Supreme Court in appeals from High

Courts in regard to civil matters.—

(1) An appeal shall lie to the Supreme Court from any judgment, decree or

final order in a civil proceeding of a High Court in the territory of India if the

High Court certifies under article 134A (a) that the case involves a substantial
question of law of general importance; and (b) that in the opinion of the High

Court the said question needs to be decided by the Supreme Court.

(2) Notwithstanding anything in article 132, any party appealing to the

Supreme Court under clause (1) may urge as one of the grounds in such

appeal that a substantial question of law as to the interpretation of this

Constitution has been wrongly decided.

134. Appellate jurisdiction of Supreme Court in regard to criminal

matters.—

(1) An appeal shall lie to the Supreme Court from any judgment, final order

or sentence in a criminal proceeding of a High Court in the territory of India

if the High Court—

(a) has on appeal reversed an order of acquittal of an accused person and

sentenced him to death; or

(b) has withdrawn for trial before itself any case from any court subordinate

to its authority and has in such trial convicted the accused person and

sentenced him to death;

 136. Special leave to appeal by the Supreme Court.—

(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.

SCOPE AND NATURE OF JURISDICTION UNDER ARTICLE 136

Clause (1) of Article 136 provides: “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”

Article 136(1) confers discretion on the Supreme Court to grant, special to

appeal before itself, from any judgment, determination, sentence, order

passed or made by any Court or Tribunal in any cause or matter. Article 136

confers extra-ordinary jurisdiction on the apex Court.1

DISTINCTIONTION BETWEEN ARTICLE 136 and ARTICLES 132

to 134

Like Articles 132 to 134, Article 136 deals with the appellate jurisdiction of

the Supreme Court. However, there are significant distinctions between these

provisions, which are as follows:-

(A). While, under Articles 132 to 134, an appeal to the Supreme Court lies

against a decision of the High Court- under Article 136, it may lie

against the decision of any Court or tribunal. Thus, under Article 136

an appeal lies against the decisions of subordinate courts as well.

(B). While, under Article 132 to 134, an appeal lies to the Supreme Court

against the final order of a High Court – under Article 136 it may lie

1 Khairuddin v. State of W.B, AIR 2013 SC 2354

 against an order whether final or not. Even an interlocutory order may

be appealed against Article 136.2

(C). While, under Articles 132 to 134, an appeal can lie only against

judgments, decrees, final orders or sentences passed or made by the

High Court – under Article 136, the Supreme Court may entertain

appeal against not only judgments, decrees, orders or sentences but also

against any determination.

(D). While, under Articles 132 to 134, the decision appealed against must

have been passed or made in any civil, criminal or other proceeding of

a High Court – under Article 136, decisions made or passed in any

cause or matter may also be appealed against.

(E). While, under Articles 132 to 134, an appeal lies only when the High

Court grants a certificate of fitness under Article 134A – under Article

136, appeal lies only when the Supreme Court, in its discretion, has

granted special leave to appeal before itself.

2 P. V Chetty v. P.R Chetty, (2007) 3 SCC 151.

 SCOPE AND OBJECT OF ARTICLE 136 - DISCRETIONARY

JURISDICTION3

Article 136 confers a wide discretionary power on the Supreme Court. Article

136 is in the nature of special or residuary power, exercisable outside the

purview of ordinary law, where requirements of justice demand interference

by the Supreme Court. It is to be exercised sparingly. It is known as the

extraordinary appellate jurisdiction of the Supreme Court.

The following two conditions must be satisfied for invoking Article 136(1)4-

(A). the proposed appeal must be against a judicial or quasi-judicial and not

a purely executive or administrative order; and

(B). the determination or order must have been or passed, by any Court or

Tribunal, in the territory of India.

The designation of an act as quasi-judicial or as purely executive depends on

the facts and circumstances of each case. Speaking generally, if there is a

contest between two contending parties and a statutory authority is required

3 J.H Wadia v. Board of Trustees (1994) 1 SCALE 340

4 Manju Verma v. State of U.P 2005 (1) SCC 73
to adjudicate upon the competing contentions, then act is a quasi-judicial

one.5

While an order would be judicial if, it is in substance a determination, upon

investigation of a question, by the application of objective standards, to facts

found in the light of pre-existing legal rules; it declares rights or imposes

upon parties’ obligations, affecting their civil rights6, and that the

investigation is subject to certain procedural attributes contemplating an

opportunity of presenting its case to a party.

Article 136 does not confer any right of appeal in favour of any party as such

and an appeal by special leave to Supreme Court, therefore, cannot be

considered as right to appeal vested in a party.7 Broadly speaking, the

Supreme Court would grant special leave if a tribunal fails to exercise

jurisdiction or acts in excess of its jurisdiction, or acts against the principles

of natural justice, or acts illegally.

5 Indian National Congress v. Institute of Social Welfare, 2002 (5) SCC 685

7 Shin-Etsu Chemical Co. Ltd. v Vindhya Telelinks Ltd, AIR 2009 SC 3284
 SPECIAL LEAVE TO APPEAL -SUMMARY

Notwithstanding anything contained in Chapter IV of the Constitution, 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, except in relation to any court or

tribunal constituted by or under any law relating to the armed forces.

Article 136 does not confer a right of appeal on any party but it confers a

discretionary power on the Supreme Court to interfere in suitable cases. The

jurisdiction conferred by Article 136 is divisible into two stages; first stage is

upto the disposal of prayer for special leave to file an appeal and the second

stage commences if and when the leave to appeal is granted and special leave

petition is converted into an appeal.

Under Article 136, the Supreme Court may reverse, modify or affirm the

judgment, decree or order appealed against while exercising its appellate

jurisdiction and not while exercising the discretionary jurisdiction disposing

of petition for special leave to appeal.

 ILLUSTRATIVE INSTANCES OF INTEREFERENCE UNDER

ARTICLE 136

ABSENCE OF SPEAKING ORDER

In woolcombers of India Ltd. v Workers Union, the Court observed

that judicial and quasi-judicial authorities from whose decisions an appeal

lies to it by special leave under Article 136, should always give reasons in

support of their conclusion. The recording of reasons is essential for various

reasons. First, it is calculated to prevent unfairness or arbitrariness in

reaching the conclusions. The very search for reasons will put the authority

on the alert and minimize the chances of unconscious infiltration of personal

bias or unfairness in the conclusion.

In Baboo v. State of Madhya Pradesh, the Court observed that when in a

criminal trial a number of accused are convicted of an offence under Section

302 IPC and there is only one appeal on facts to the High Court, ordinarily it

is expected that the contentions raised by the accused would receive serious

consideration at the hands of the High Court.

 INTEREFERENCE WITH FINDING OF FACT

The Supreme Court normally doesn’t interference with a finding of the fact

arrived at by the High Courts or the district Courts. But, in appropriate cases,

the Supreme Court can go into the facts of a case.

In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat8, the Court

summarized the circumstances when concurrent findings of the Courts below

in a Criminal matter can be reopened by the Supreme Court in an appeal

under Article 136 of the Constitution:

“(1). That the finding is based on no evidence, or (2) that the finding is

perverse, it being such as no reasonable person could have arrived at

even if the evidence was taken at its face value, or (3) the finding is

based and built on inadmissible evidence, which evidence, if excluded

from vision, would negate the prosecution case or substantially

discredit or impair it, or (4) some vital piece of evidence which would

tilt the balance in favour of the convict has been overlooked,

disregarded, or wrongly discarded.”

8 (1983) 3 SCC 217

 INTEREFERENCE WITH EXERCISE OF DISCRETION OF

COURTS BELOW

(a) In the matter of sentence or fine

Though nothing prevents the Supreme Court from interfering with the

sentence or fine imposed by the lower courts, it doesn’t easily do so. As

a matter of practice, the Supreme Court does not grant special leave

where the question is only one of excessive sentence or fine by the

lower Courts, but if the facts and circumstances of a case justify, it may

interfere.

In Surendra v. State of Gujarat9, the Court held that:

“the imposition of sentence is always a matter of discretion and

unless this Court finds that the discretion has been exercised

arbitrarily or capriciously or on unsound principles or that the

Sessions Court or the High Court has not taken into account any

relevant factors in imposing the sentence, this Court would not be

justified in reducing the sentence, merely because it feels that a

lesser sentence might well have been imposed”.

9 1992 Supp (2) SCC 547

 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

People’s 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 condition. 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.10

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 example Article 329).11

10 Durga Shankar Mehta v. Thakur Raghuraj Singh (1955) 1 SCC 267

11 Meghraj Kothari v . Delimitation Commissioner (1967) 1 SCR 400
 PROCEDURE UNDER SUPREME COURT RULES

The procedure for filing a special leave petition is contained in Order XVI of

the Supreme Court Rules. Rule 1 Order XVI of the Supreme Court Rules and

Rule 1 Order XXI prescribe that a petition for special leave to appeal shall,

subject to the provisions of sections 4, 5, 12, and 14 of the Limitation Act,

1963, be lodged in the Supreme Court within sixty days from the date of

refusal of a certificate by the High Court, and in other cases within ninety

days from the date of judgment or order sought to be appealed from.

Usually, the special leave petitions are to be filed within ninety days from the

date of the order of the High Court. In case the petition has been filed after

the expiry of that period, an application for condonation of delay must be

filed, stating inter alia that petitioner had sufficient cause for not preferring

the petition within in time. The Court has power to condone delay if the

reasons are justified. The petitioner has to explain delay of each and every

day. If the Court was prima facie satisfied that petitioner was prevented by

sufficient cause in filing the petition in time, it would issue notice to the

respondent to show cause why the delay should not be condoned.

In Bihar v. Kameshwar Prasad Singh the Court held that generally it

adopted a liberal approach in condonation of delay if sufficient cause for the

delay had been shown, and where the interests of justice so required. The

special leave petition proper should be filed in Form 28 annexed to the Rules.

The relevant documents are annexed to the special leave petition.

Rule 5 and Rule 21 of Order XVI of Supreme Court Rules prescribe that the

petition shall be accompanied by: (a) a certified copy of the judgment or the

order appealed from, and (b) An affidavit in support of the statement of facts

contained in the petition. According to Rule 6 no annexure to the petition

shall be accepted unless such annexure is certified copies of documents

which have formed part of the record of the case in the Court sought to be

appealed from; provided that uncertified copies of document may be accepted

as annexure if such copies are affirmed to be true copies upon affidavit.

The petitioner shall file at least seven spare sets of the petition and of the

accompanying papers. In Rule 8 where any person is sought to be impleaded

in the petition as legal representative of any party to the proceedings in the

Court below, the petition shall contain a prayer for bringing on record such

person as legal representative of any party to the proceedings in the court

below. The petition shall contain a prayer for bringing on record such person

as the legal representative and shall be supported by an affidavit setting out

the facts showing him to be the proper person to be entered on the record as

such legal representative.

In Rule 9 where at any time between the filing of the petition for special

leave to appeal and the hearing thereof the record becomes defective by

reason of the death or change of status of a party to the appeal or for any

other reason, an application shall be made to the Court stating who is the

proper person to be substituted or entered on the record in place of or in

addition to the party on record. Provisions contained in Rule 33 of Order XV

shall apply to the hearing of such applications.

In case the certified copy has not been made available, the petitioner can file

the special leave petition accompanied by an office copy of the order along

with an application for exemption from filing certified copy. The Registry of

Court has directed that the affidavit must also affirm the contents of the list of

dates and the contents of the special leave petition, by clearly mentioning the

pages. All applications filed along with the petition must also be affirmed by
affidavit. Parties may, file such documents considered by them to be relevant,

provided that such documents were on record of the case in the court below.

Accompaniments to the petition should all be certified copies of such

documents, but where it is not possible to supply certified copies of such

documents; uncertified copies may be filed provided such copies are affirmed

upon affidavit to be true copies. It is not permissible for a party to file, any

document which does not form part of the record of the case in the courts

below. Where, however, it is desirable to refer to such documents, the special

leave petition should be accompanied by a separate application praying for

leave of the court to take the said documents of record. The Court has

deprecated the practice of filing new documents or pleading new and directed

the Registry not to entertain without the express direction of the Court.

The documents should be legible. The Court has directed that in case the

documents are not legible, typed copies of the same may be annexed to the

special leave petition. The documents must be in English. In case, a

document is in other language, a translated copy of the same may be annexed

along with an application for exemption from filing an official translation.

The Registry has issued a circular whereby it has now become necessary that

every special leave petition be accompanied by a certificate, in the prescribed

form, by the advocate-on-record to the effect that the special leave petition is

confined to the pleadings and the documents which formed a part of the

records of the courts below, and that documents were necessary to answer the

questions of law raised in the petition and make out the grounds urged.

Special leave petitions are generally listed for hearing ex-parte. Any person

who claims a right to be heard in such matters must file a caveat as prescribed

by Rule 10 of Order XVIII. It is not necessary that notice to the respondent

should be issued at this stage. The Court issue notice only where the

petitioner has made out a prima facie case for admission. Once notice is

issued, the respondents may, if so advised, enter appearance either in person

or through an advocate-on-record. Unless otherwise ordered by the court, the

notice is sent by registered post with acknowledgment due.

If after the expiry of thirty days, neither acknowledgment card nor unserved

envelope is returned, the notice is deemed to be complete. The Court insists

that in such cases, the petitioner serves the respondents either by dasti or

substituted service. The respondents may be permitted to oppose the special

leave petition by filing a counter affidavit along with such documents that the

respondents may feel essential for purposes of the decision on the special

leave petition. The petitioner, if facts so require may file a rejoinder to the

counter affidavit with the permission of the court. On hearing the parties, the

Court may decide the petition at the admission stage itself.

The court may grant leave as Rule 11 of Order XVI provides and the petition

shall be treated as a petition of appeal and registered as an appeal. In case the

appeal is not disposed of at that stage, further steps are required to be taken in

accordance with the Rules applicable to appeals by certificate. Thus the

Supreme Court admits the special leave petition by applying the rules and

principles as discussed above and exercise a wide discretionary power which

varies from one judge to another or from one case to another without any

uniform pattern.