Special Leave to Appeal (Article 136)

At a Glance

• What it is The Supreme Court’s discretionary power to hear appeals from any court or tribunal
• Article Article 136
• Exclusion Military courts and court martial
• Character Exceptional and to be exercised sparingly
• Exam link UPSC Prelims, Polity: Higher Judiciary

Where Does It Fit?

This is the fifth topic of the category on the Higher Judiciary. Article 136 gives the Supreme Court a plenary discretion to grant special leave to appeal from almost any judgment in the country.

What Article 136 Provides

The Supreme Court is authorised to grant in its discretion special leave to appeal from any judgment in any matter passed by any court or tribunal in the country, except military tribunals and courts martial. This provision has four aspects:

1. It is a discretionary power and cannot be claimed as a matter of right.
2. It can be granted against any judgment, whether final or interlocutory.
3. It may relate to any matter: constitutional, civil, criminal, income-tax, labour, revenue, advocates and so on.
4. It can be granted against any court or tribunal and not necessarily a high court.

A Plenary Power Exercised Sparingly

The scope of this provision is very wide and vests the Supreme Court with a plenary jurisdiction to hear appeals. On the exercise of this power, the Supreme Court has itself held that being an exceptional and overriding power, it has to be exercised sparingly and with caution and only in special extraordinary situations. Beyond that it is not possible to fetter the exercise of this power by any set formula or rule. This is why a Special Leave Petition is first filed and the Court decides whether to grant leave; only if leave is granted does the appeal proceed.

Special Leave Compared with Other Appeals

The American Supreme Court has no such plenary power. This is one of the differences between the two courts, as the Indian Court has a very wide discretion to grant special leave to appeal in any matter against the judgment of any court or tribunal (except military), while the American Court does not.

Position in the Appellate Structure

Special leave sits at the top of the appellate structure. First appeals and second appeals go to the high court from the district courts, and appeals from tribunals lie to the high court, since a 1997 ruling made tribunals subject to the writ jurisdiction of the high courts. A person aggrieved by a tribunal cannot go directly to the Supreme Court without first approaching the high court. From the high court, appeals lie to the Supreme Court on a certificate or as of right in the cases described, and for everything else the remedy is a Special Leave Petition under Article 136. In effect, special leave is the safety net which ensures that no important judgment in the country is entirely beyond the Supreme Court’s reach, except for military tribunals. The grant of leave is itself a decision on whether the matter deserves hearing, which the Court makes after considering the questions of law and public interest it raises.

Related Powers

Besides Article 136, the Supreme Court has the power of review of its own judgments under Article 137, filed within thirty days before the same bench on grounds of discovery of new evidence, an error apparent on the face of the record or other sufficient reason. Even after dismissal of the review, it can reconsider the judgment through a curative petition on limited grounds: violation of natural justice, to cure a gross miscarriage of justice, to prevent abuse of process, and bias of the judge. The Court also has the power under Article 139A to withdraw cases pending before high courts and dispose of them itself, and to transfer cases between high courts, and under Article 142 its decrees and orders are enforceable.

Why Is This Topic Important?

• Broad power Asked as a statement-based question
• Contrast with USA Table item
• Review and curative Frequently linked

What Came Next?

The next topic covers the advisory jurisdiction of the Supreme Court under Article 143.

Key People and Terms

• Special leave petition Application seeking permission to appeal
• Interlocutory Not final; during proceedings
• Plenary Full and unrestricted
• Curative petition Last remedy after review
• Tribunal Quasi-judicial body

Exam Corner

Mains Angle

Questions on this topic usually ask about the plenary nature. Use these points to add depth.

• Plenary jurisdiction Broadest appellate power
• Self-restraint Court calls it exceptional
• Access to justice Last resort
• Review and curative Further safeguards