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Article 136 of the Indian Constitution

Article 136 of the Indian Constitution

Introduction

Article 136 of the Indian Constitution deals with a special jurisdiction which has been granted to the Supreme Court, the Apex court in India. This can be understood as a residuary power vested in the Supreme Court. Article 136 is a power to appeal in the apex court, which can be filed by any person against any judgment or order of any Court or tribunal in the territory of India.

Understanding Article 136

This is the power to grant special leave. The power of the court is discretionary in nature. This discretionary power may be exercised by the court, where the very essence of granting justice is violated, and the court below has done wrong to the law and the parties. Since there is no said rule when can or cannot the power under Article 136 can be invoked. Thus it becomes the discretionary power of the Apex Court.

The power vested under Article 136 is wider than the power granted under Article 134A. As per 134A, the High Court grants certificate making it fit to appeal to Supreme Court. In the case of Pritam Singh v State[1], the Supreme Court clarified the exercise of this power only in expectational cases and needs to be exercised sparingly.

The very purpose of enacting such a provision in the Indian Constitution is so that the Apex court has the power to interfere if any law has been wrongly interpreted by the court or any injustice has been done.

Who can file an SLP?

Any Aggrieved Party can prefer filing an appeal. The nature of the case may be civil or criminal. The aggrieved party by the decision of any court or tribunal in any matter may prefer an appeal in the apex court.

Prerequisites of filing an SLP

  • This Leave petition can be filed against any judgment, decree, order, a determination which has been passed by any Court or tribunal in any cause or matter.
  • The only judgments against whom SLP cannot be filed is a judgment by a military tribunal and court-martial, i.e. any court or tribunal which is constituted by or under any law in relation to the armed forces.[2]
  • An SLP against the Judgment of the High Court should be filed within 90 days from the date of passing of such judgment.
  • An SLP against any order of High Court refusing to grant a certificate of fitness for appeal can be filed within 60 days.
  • An SLP will be entertained by the Apex court where a substantial question involving the constitution of India is involved, or there is a gross miscarriage of justice.
  • It is important to understand SLP is not a right that can be claimed by the aggrieved parties. But it is a privilege of the SC.
  • It is necessary to state all the facts which are necessary which will enable the court to decide if SLP be granted or not.
  • The petition must be signed by an Advocate-on-record

Exercise of Power by the court

In the case of Ganga Kumar v State of Bihar[3] and Dalbir Kaur v State of Punjab[4], the principle governing the exercise of power under Article 136 for criminal cases was highlighted,

  1. The power vested in the Apex court is wide in nature except in cases of criminal appeals; in this case, the SC shall not interfere in the findings of the facts other than in special circumstances.
  2. In the case where the High Court has acted in an unjust manner, then the Supreme Court is open to interfere with the finding of the facts.
  3. When the decision of a lower court shakes the conscience of the Court or a question of law of public importance arises, the Supreme Court can invoke its power under 136.

Relation of indiscriminate filing of cases and pendency of cases:

The number of cases that are pending in the Supreme Court is a hard and unspoken reality. The filing of SLP faces no discrimination and thus adds up to the stock of pending cases. So, is there a need to revisit the existing provision?

In the case of Bihar Legal Support Society v Chief Justice of India[5], the court has made itself clear that it is not intended to be a regular court of appeal for judgments and orders. In the words of Former Chief Justice of India, JS Khehar the number of nonsensical petitions which are filed has increased tremendously. And something needs to be done. One of the measures to stop it could have imposing heavy costs, but the same has not been done yet.

By accepting almost all cases of appeal, the Supreme Court has now just remained a mere court of appeal and lost its natural essence of being a constitutional court.

What happens after SLP is dismissed?

In the recent case of 2019 of Khoday Distilleries Ltd. vs. Sri Mahadeshwara Sahakara[6], even after the dismissal of the SLP by the Supreme Court, the Appellant preferred a review petition in the High Court to seek review of the judgment. The court opined that since the Apex Court has dismissed the Special Leave Petition, on the ground of which the High Court dismissed the current review petition.

So, the question of the maintainability of a review petition after the dismissal of SLP was decided upon in this case by a three-judge bench. The court in its judgment reasoned that since the SLP was dismissed without any speaking order and in limine, and thus the review petition is maintainable, and the High Court is empowered to entertain the review petition.

Conclusion

Article 136 is not a right of the party but the discretion of the court to interfere in case of miscarriage of justice and irregular interpretation of the law. The special power vested in the Apex court is aimed to ensure that justice is never denied, and it is served rightfully. However, the law is too lenient in allowing appeals from any court, in any case, to increase the pendency of the cases and justice thus delayed.

[1] AIR 1950 SC 169

[2] Article 136(2) of the Indian Constitution

[3] AIR 2005 SC 3123

[4] 2002 (50) BLLJR 2522

[5] 1987 AIR 38

[6] Civil Appeal No. 2433 of 2019

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by supriya dash

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