“The time and attention and the energy of the court should be devoted to matters of large public concern and they should not be consumed by matters of less concern, without special general interest, merely because the litigant wants to have the court of last resort pass upon his right.”
Justice K.K. Mathew[1]
Table of Contents
Introduction
The first day I entered the prestigious courtrooms of the Supreme Court of India was a Miscellaneous Day where matters were being heard expeditiously and the counsels had to put forward their arguments in a nutshell, sometimes in even less than a minute. The Judges were heard saying either ‘Leave Granted’ or ‘Dismissed’. As a budding lawyer, I was awe struck by the way some counsels argued effortlessly in a restricted time and got notice issued to the respondents. However, there were many other counsels whose matters were dismissed, despite them exhibiting an excellent court craft. This led me into thinking about the extent of the discretion exercised by the court in admitting Special Leave Petitions. Therefore, this article is an attempt to dissect and understand the discretionary powers of the Supreme Court under Article 136 of the Constitution of India and its role in contributing to the increasing pendency in the Apex Court.
Jurisdictions of the Supreme Court of India
The Supreme Court of India has three types of jurisdictions including original, appellate and advisory jurisdictions. The Original Jurisdiction of the Supreme Court bestows the power to directly hear disputes involving infringement of fundamental rights or disputes between the Government of India and States or between different states. The Appellate Jurisdiction empowers the Supreme Court to review judgments of the High Court where a substantial question of law is involved. The Supreme Court also has an advisory jurisdiction, which involves matters referred to by the President of India.
However, amongst the appellate jurisdictions of the Supreme Court available under Articles 132(1), 133(1) or 134 of the Constitution of India, Article 136 of the Constitution is a very widely used remedy. Under Article 136, Supreme Court has the discretion to grant special leave to appeal against any order, decree, judgment, or sentence passed by any court or tribunal in India. A common term that is often used by the Judges in the Supreme Court while entertaining an Special Leave Petition (SLP) is ‘Leave Granted’. This term is not a mere procedural formality in admitting SLPs rather it exerts the discretion available with the Supreme Court to permit a petition to be heard before finally adjudicating. The Leave is granted in cases where the Supreme Court has the discretion and thus it cannot be compared to cases where the appeal to the Supreme Court is a statutory right.
Leave Granted: Meaning
According to the Black’s Law Dictionary, Leave means to allow or cause to remain. In simple terms it means the permission given by the court to the litigant to initiate or continue a particular proceeding. When the court order states – ‘Leave Granted’ it means that the court has exercised its discretion and has allowed the petitioner to proceed in the form of an appeal or a review. In the case of SLPs, the court is not compelled to proceed with a case unless a Leave is granted after a preliminary scrutiny.
Article 136 and its wide scope
Article 136(1) of the Constitution provides that the Supreme Court has the discretion to grant a 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. However, the exception to Article 136 (1) is provided in Article 136(2) stating that the conditions provided in clause 1 are not applicable to the laws relating to the Armed Forces.
The term ‘Any’ used in Article 136 is of much importance, since it gives a wide scope to the Supreme Court to entertain appeals or reviews from any court, at whatever stage it may be. The objective behind Granting Leave in SLPs is to curb frivolous litigations coming directly to the Supreme Court owing to the wide ambit under Article 136. However, the wide scope of Article 136 has itself led the litigants into testing their luck until the Supreme Court of the country. Article 136 contributes to a lot of pendency in the Supreme Court today thus stealing a lot of precious judicial time which could have been utilized in deciding issues involving substantial questions of law.
The objective behind enacting Article 136
The present Article 136 of the Constitution finds its place as Article 112 in the Constitutional Assembly Debates of June and October 1949. The issue regarding the wide scope of the present Article 136 of the Constitution was extensively discussed and debated by the Constitutional Assembly. During the deliberation about Article 112 of the Constitution, some members advocated for a provision where the Supreme Court should have the power to entertain any appeal from any court or tribunal and where the appeals are not bound by law but their fate should also depend on principles of natural justice.
On the other hand, some members raised their concerns regarding the volume of cases that might reach the Supreme Court in case Article 112 is not given a strict interpretation. Shri H.V. Pataskar in his speech said that under Article 112, the Supreme Court will not likely grant leave unless there is a serious breach of principles in the administration of justice. While discussing appeal provisions under Article 112 and by way of a certificate from the High Courts, Shri Naziruddin Ahmad observed that it would be apposite for the Supreme Court to grant leave only in those cases where a substantial question of law is involved and the High Courts commit an error by not granting the certificate to appeal. It was further submitted that a substantial question of law is very limited in scope and includes a high standard of irregularity in law. Procedural Irregularities cannot be said to involve a substantial question of law.
Substantial Question of Law: An Interpretation
The interpretation of the term ‘Substantial Question of Law’ has been widely observed by the Privy Council in Raghunath Prasad Singh v. Deputy Commissioner of Partabgarh[2] as well as by the Supreme Court in Sir Chunilal V. Mehta and Sons, Ltd. v. The Century Spinning and Manufacturing Co., Ltd.[3] The Supreme Court in Sir Chunilal V. Mehta and Sons, Ltd Case laid down the test for determining a substantial question of law which is said to include a question which is of general public importance or if it directly and substantially affects the rights of the parties involved. Further, if the question of law directly and substantially affects the rights of the parties involved, then it must not be a question which has already been finally settled by the Highest Court of the country.
Then, in SBI v. Shri N. Sundara Money[4] the Supreme Court observed that the Supreme Court while exercising the powers under Article 136 should give due regard to the constitutional restrictions provided for under Article 133(1) of the Constitution. Article 133(1) provides for a twin condition in order to grant a certificate to appeal and provides that there should be a question of law of general importance and the said question needs to be decided by the Supreme Court in the opinion of the High Court. A need for the Supreme Court to decide a question of law can be said to arise only when two views are possible regarding the question of law put forth.
In V. Vasanthakumar vs H.C. Bhatia and Ors.[5], the Supreme Court observed that the objective behind creation of the Supreme Court was to lay down the law for the entire country. This is the reason behind empowering it with an extra-ordinary jurisdiction to grant special leave in cases where it was found that the law was erroneously being applied and a grave miscarriage of justice was committed by the courts or tribunals below.
Thus, the position of law as to what constitutes a substantial question of law has been squarely discussed and decided by the Privy Council as well as by the Supreme Court of India. The law is well settled that the Supreme Court of India was set up to clarify the ambiguity in law which has substantially affected the rights of the parties or where a grave miscarriage of justice was committed.
Dismissed: Leave when not granted
Article 136 being a discretionary power does not obligate the Supreme Court to grant leave in each and every matter. An analysis of the pending cases in the Supreme Court for the period between 2016 to 2020 showcases that around 89% of the cases are dismissed at the admission stage itself.[6] A similar trend was followed by the Supreme Court in 2021, where 91% of the cases were dismissed at the admission stage.[7] This shows the quantum of time spent by the Supreme Court on those cases which were not even suitable to be listed for regular hearings.
However, the question that arises is whether this discretionary power extends to dismissing petitions without even passing a speaking order or letting the petitioner know the reasons for the dismissal of the petition? The Supreme Court of India in Kranti Associates (P) Ltd. v. Masood Ahmed Khan[8] had the occasion to analyse the importance of passing reasoned orders by the courts and quasi-judicial authorities. It was observed that recording of reasons is a restraint to any arbitrary exercise of power. Further, it bolsters the principle that justice must not only be done but it must be seen to be done. Moreover, a reasoned order sustains the faith of the litigant in the justice delivery system.
When a large number of such orders are dismissed without proper reasoning, it somehow puts a question mark in the minds of the litigants. Justice Chinnappa Reddy in National Textile Workers vs P.R. Ramkrishnan And Others[9] while reinforcing the principles of natural justice for the courts, observed as follows:
“Can courts say natural justice need not be observed by them as they know how to render justice without observing natural justice? It will surely be a travesty of justice to deny natural justice on the ground that courts know better.”
Certificate of Appeal: An International Perspective
Presently, the Supreme Court of India has a bench strength of 34 Judges which is way more than that of the SCOTUS and the United Kingdom Supreme Court (UKSC) that has bench strength of 12 and 9 respectively. It is not just the strength of the bench but the Supreme Court of India even works for more days as compared to the SCOTUS and UKSC. In 2023, the Supreme Court of India sat for 190 days. On the other hand, the UKSC sat for 149 days, while the SCOTUS sat for just 68 days.[10]
The litigants in the US also have a provision to request an appeal to the SCOTUS being aggrieved by the decision of the Federal Court by virtue of a writ of certiorari.[11] However, most of the cases that come before the Federal Courts are decided finally, thus, about 10 per cent or fewer cases are appealed to the U.S. Supreme Court. The SCOTUS hears matters under the writ of certiorari only when it is of national significance or there is a need to harmonize the conflicting decisions of the Federal Courts. According to the rules of the SCOTUS, four of the nine judges must vote to accept a case for hearing. Each year SCOTUS receives more than 7000 cases for review, however, only 100-150 are accepted for hearing.[12]
Unlike the direct route to the Supreme Court of India through an SLP, an appeal to the UKSC requires permission from the court below seeking an appeal to the UKSC. The court below or the court of appeal has to certify a point of law of general public importance before granting the permission to appeal. However, certification as to the point of law of general public importance is not required in cases involving habeas corpus, appeal by a Minister of the Crown against a declaration of incompatibility and in contempt of court cases where the decision of the court below was not a decision on appeal.
However, in most cases leave is not granted by the court of appeal. In such cases, the application for permission can be directly made to the UKSC. The application for permission is then considered by a panel of three justices who then decide upon granting or refusing the permission based on the documents but without a hearing.
The Supreme Court of India in P.S.R. Sadhanantam v. Arunachalam[13] observed the views expressed by Benjamin Cardozo, a former justice of the Supreme Court of the United States (SCOTUS) who says that: “the wider the discretionary power the more sparing its exercise. Times out of number this Court has stressed that though parties promiscuously ‘provoke’ this jurisdiction, the Court parsimoniously invokes the power. Moreover, the Court may not, save in special situations, grant leave to one who is not eo nomine a party on the record. Thus, procedural limitations exist and are governed by well-worn rules of guidance.”[14]
Today, large portions of litigation in the Supreme Court arise out of the Special Leave Petitions under article 136 of the Constitution. It has already been succinctly observed in P.S.R. Sadhanantam (Supra) that the discretionary powers must be sparingly exercised. Further, both the SCOTUS and the UKSC adjudicate limited cases where a substantial question of law is involved. I believe that the best practices from the SCOTUS and UKSC must be adopted in the Supreme Court of India to curb the increasing pendency owing to the wide discretionary powers under Article 136 of the Constitution.
Thus, it is suggested that a strong mechanism must be adopted where the aggrieved litigant needs to first approach the High Court or the Tribunal by whose order or judgment the litigant is aggrieved, seeking for a certificate of appeal in case a substantial question of law is involved. In this scenario, certificate to appeal will be granted only in those cases where there is ambiguity in law or the law is general public importance and needs to be settled by the highest court of the land. However, if the certificate to appeal is not granted by the court passing the impugned order despite involving a substantial question of law or where grave miscarriage of justice has been committed by the sub-ordinate Court, then in such circumstances, the litigant may then prefer the Special Leave to Appeal before the Supreme Court.
Should the scope of Article 136 be limited?
Even though Article 136 exerts wide discretion on the Supreme Court to grant leave to any petition, yet this power is not completely unfettered. The Apex Court has time and again refused to entertain the SLPs where the courts found necessary to do so. However, no strict formula has been prescribed for admitting the SLPs till now.
The first occasion when the Supreme Court got the opportunity to interpret Article 136 of the Constitution was in Pritam Singh v. State (1950)[15] where the constitutional bench of the Supreme Court dismissed a criminal appeal primarily on the ground that the Supreme Court is not an ordinary court of appeal. It was observed that the facts cannot be allowed to be reopened. The Court further said that the discretionary power under Article 136 has to be exercised sparingly and only in exceptional circumstances[16] when it is shown that a substantial and grave injustice has been done. However, the Supreme Court in Pritam Singh did not lay down the grounds of appeal under Article 136 and left it open for the court to decide based on the facts and circumstances of each case.
Then in 1954, in the case of Dhakeswari Cotton Mills Ltd. v. CIT[17] the Supreme Court reiterated its earlier stance in Pritam Singh but went on to observe that the discretionary powers of the Supreme Court under Article 136 cannot be limited and no set formula can be laid down for the same. Thus, the Supreme Court of India has been limiting its scope to grant leave under Article 136 based upon the facts and circumstances of each case or based on the statutory laws involved.
In the case of Mathai @ Joby v. George[18] the Supreme Courts’ bench comprising Hon’ble Mr. Justice Markandey Katju and Hon’ble Mr. Justice R.M. Lodha expressed their anguish over the number of cases mounting in the Supreme Court under Article 136. The Court went on to observe that the Supreme Court is not bound to set aside an order even if it was not in conformity with the law. In its order dated 19th March 2010, the court also referred the matter to the Constitutional Bench which observed as follows:
“No effort should be made to restrict the powers of this Court under Article 136 because while exercising its powers under Article 136 of the Constitution of India, this Court can, after considering facts of the case to be decided, very well use its discretion. In the interest of justice, in our view, it would be better to use the said power with circumspection, rather than to limit the power forever.”[19]
The Supreme Court has time and again limited the scope of Article 136 based on the facts and circumstances of each case. In Ram Saran Das and Bros. v. Commercial Tax Officer,Calcutta & Ors.[20] the Supreme Court refused to grant leave on the ground that the petitioner had directly approached the Apex Court under Article 136 against the order of Assessment without exhausting the available remedies under the Central Sales Tax Act.
Then in Kunhayammed v. State[21] the Supreme Court while deciding on the impact of a non-speaking order of dismissal of an SLP observed some reasons that may be attributed to the rejection of an SLP. These reasons included (i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner having no locus standi to file the petition, (iv) the conduct of the petitioner disentitling him to any indulgence by the Court, (iv) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the apex court of the country, etc.
Recently, in M/S Universal Sompo General Insurance co. Ltd. v. Suresh Chand Jain & Anr[22]a division bench of the Supreme Court limited the scope of appeals under article 136 arising from the appellate jurisdiction of the National Consumer Disputes Redressal Commission. After analyzing the Consumer Protection Act of 1986 and 2019, the Court came to the conclusion that an aggrieved party has a right to appeal to the Supreme Court only against the order of the NCDRC decided in its original jurisdiction. Thus, a case decided by the NCDRC in its appellate jurisdiction ought not be challenged under Article 136 but should be contested before the jurisdictional High Court under its writ jurisdiction under Article 226 of the Constitution.
Conclusion
A detailed analysis of Article 136 by way of its interpretation by the Hon’ble Supreme Court of India shows the extent till which the Apex Court exercises its discretion in granting leave to appeal. There is no strict formula of deciphering the matters which might be granted the leave to appeal as it is based on principles of natural justice, cases involving substantial questions of law or where grave miscarriage of justice has occured. Thus, each case has a good chance of getting a hearing at the Supreme Court if the litigants show that the case involves substantial questions of law or grave miscarriage of justice has happened. However, with time SLPs have contributed to a lot of pendency in the Hon’ble Supreme Court.
It has thus become imperative to adopt some good practices from foreign jurisdictions to curb the pendency of frivolous SLPs which are filed owing to the wide scope of Article 136 in the Supreme Court. In order to restrict frivolous SLPs being filed in the Supreme Court, the practice of first applying for a certificate to appeal before the High Court or Tribunal should be mandated. The High Court or the Tribunal should certify in case a substantial question of law is involved. Any party being aggrieved by the rejection to grant the certificate of appeal always has the opportunity to seek redressal before the Hon’ble Supreme Court of India under Article 136.
Thus, a well defined approach towards limiting the exercise of Article 136 is required in cases involving substantial questions law and public importance. Such approach will help in preserving the role of the Supreme Court as a guardian of the constitutional principles. As observed in a catena of judgments judicial restraint coupled with effective procedural mechanism is the key to ensure that Article 136 serves its intended purpose without overburdening the judicial system.
[1] (1982) 3 SCC (Jour) 1.
[2] 1927 SCC OnLine PC 11
[3] 1962 SCC OnLine SC 57. Also see Baigana v Dy Collector of Consolidation, (1978) 2 SCC 461.
[4] (1976) 1 SCC 822
[5] (2016) 7 SCC 686
[6] ‘SC Admits Less Than 15% of Filed Cases’ (Supreme Court Observer) https://www.scobserver.in/journal/sc-admits-less-than-15-of-filed-cases/ accessed [01.03.2025]
[7] ‘91% of Cases Disposed in 2021 by the Supreme Court Were at Admission Stage’ (Supreme Court Observer) https://www.scobserver.in/journal/91-of-cases-disposed-in-2021-by-the-supreme-court-were-at-admission-stage/ accessed [01.03.2025].
[8] (2010) 9 SCC 496.
[9] (1983) 1 SCC 288.
[10] ‘Does the Supreme Court of India Work More Days Than Other Top Courts Across the World?’ (Supreme Court Observer) https://www.scobserver.in/journal/does-the-supreme-court-of-india-work-more-days-than-other-top-courts-across-the-world/ accessed [01.03.2025].
[11] ‘Supreme Court Procedures’ (United States Courts) https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-court-procedures accessed [01.03.2025].
[12] ‘About US Courts of Appeals’ (United States Courts) https://www.uscourts.gov/about-federal-courts/court-role-and-structure/about-us-courts-appeals accessed [01.03.2025].
[13] (1980) 3 SCC 141
[14] Benjamin N Cardozo, The Nature of the Judicial Process (Yale University Press 1921).
[15] 1950 SCC 189
[16] Jamshed Hormusji Wadia v Board of Trustees, Port of Mumbai (2004) 3 SCC 214. See also Bihar Legal Support Society v Chief Justice of India (1986) 4 SCC 767.
[17] (1954) 2 SCC 611
[18] (2010) 4 SCC 358
[19] Mathai v. George, (2016) 7 SCC 700
[20] (1962) 13 STC 6
[21] (2000) 6 SCC 359
[22] (2024) 9 SCC 148.
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