How to File a Special Leave Petition in India – Limitation & Scope

Has any order or judgment passed against you by the Tribunal or the court attained finality and there is no provision for Revision or Appeal against it?

Often, many statutes prescribe no further appeal against any judgment, decree, sentence, determination or order and stand on the principle of finality. Then in such a scenario, various questions come across the mind of a layman, which are as follows:

1. If the person is one of the parties in the lower court who believes there are many factors which need to be considered by the court but now nothing will happen and they have no remedy against such impugned judgment or order.

2. If the person was not impleaded in the proceedings before the court below, though aggrieved, they have no remedy due to principle of conclusivity and finality.

3. Lastly, the statute provides the right of appeal exclusively to the state or the victim and no one else. However, the order or the judgment passed is shaking the conscience of the society at large. In such a situation, the injustice will be perpetuated because of the principle of finality.

In this article, an attempt is made to unfold every avenue of special leave petition and answer to the above questions.

Article 136 of the Constitution of India

The solemn purpose of the provision is that injustice would not be perpetuated because of the doctrine of finality. The doctrine of finality is based on the maxim interest reipublicae ut sit finis litium, which means that it is in the interest of the state that there be an end to litigation.

The provision allows a person to move to the Supreme Court when statute does not prescribe any right of appeal or revision against any judgment or decree or order or determination or sentence passed by any court or tribunal in order to seek leave of the court to appeal by presenting a petition for special leave.

The provision, by using the expression “any” before the words judgment, decree, sentence, determination or order widens the scope of the discretionary power of the Supreme Court.

Nature

While exercising its discretion under Article 136 of the Constitution, the Supreme Court is bound by only one self- imposed limitation, that is, the wisdom and good sense of justice of the judges. The provision confers a supervisory jurisdiction on the court.

In the case of Preetam Singh Vs State, 1960 the Supreme Court held that power conferred by Article 136 must be exercised with caution and care to remedy extraordinary situations occasioning gross failure of justice. It allows the court to interfere in such extraordinary situations and to impart justice. Owing to its remedial corrective jurisdiction the provision is said to be special and extraordinary.

Petition under Article 136 is not a regular form of appeal; rather when the court grants leave it converts into appeal, hence enabling the court to interfere in order to impart justice and remedy injustice. It is to be drafted in accordance with Form no. 28 of Supreme Court Rules, 2013.

Though the provision per se has not categorised the Special Leave Petition (hereinafter it is referred as SLP), for the administrative purpose and expedite justice it is classified into two categories:

1. SLP Civil

2. SLP Criminal

When jurisdiction under Article 136 can be invoked

1. Civil SLPs are regulated by Order XXI of Supreme Court Rules, 2013. Where the concerned High Court refuses to provide a certificate of appeal under article 134A of the Constitution in accordance with article 133 clause 1 then in such case jurisdiction under article 136 can be invoked.

In the certificate the concerned High Court stated that the case involves a substantial question of law which is of general importance and needs to be decided by the Supreme Court.

2. Criminal SLP are regulated by Order XXII of Supreme Court Rules, 2013. Where the concerned High Court refuses to provide a certificate of appeal under article 134A of the Constitution in accordance with article 134 clause 1 subclause (c) then in such case SLP can be filed.

3. Generally SLP against the interlocutory order is not maintainable. However, if grave injustice is caused by such an order, SLP can be filed as held in the case of Ganesh Trading Vs. Moji Ram, 1978.

4. Against the interim order also if it is prima facie unreasonable.

5. In the case of Dharam Prithishanam vs. Modak Construction Pvt. Ltd., 2005, the Apex Court held that if the impugned order is left undisturbed it may cause manifest injustice or abuse of process of court or where fundamental principles of justice and procedure stand violated, then the court will intervene.

6. In the case of Union of India vs. Era Education Trust, 2005, the Apex Court held that where interim or interlocutory order does not have the support of any judicial standard and the ends of justice, then SLP against such order is maintainable.

Scope

It is well settled law that article 136 is worded in wide terms and powers exercisable under the provision is not hedged by any technical hurdles. It is to be exercised only in furtherance of justice. Therefore, only when the judgment or order in appeal has resulted in grave miscarriage of justice by some misapprehension or misreading of evidence or by ignoring material evidence then the court not only empowered rather well expected to interfere to promote the cause of justice.

While exercising jurisdiction under article 136 the court does not function as a regular Court of Appeal. Re-appreciation of evidence in criminal SLP can only be done in rare and exceptional cases where Trial Court and High Court arrived at concurrent finding of fact, however if there is some manifest illegality or grave and serious miscarriage of justice on account of misreading or ignoring material evidence as held in the case of Mekala Siviah vs State of Andhra Pradesh, 2022.

The Apex Court while exercising the jurisdiction under article 136 in order to understand the context and in the light of the solemn purpose of the provision, can grant leave to the parties to bring new documents or material or record which were not adduced before the courts below

When the SLP was dismissed by way of non-speaking order or withdrawn by the applicant, then fresh or subsequent SLP not maintainable as the principles of Order XXIII Rule 1 of Code of Civil Procedure applies on SLP.

When the review application is rejected by the concerned High Court, SLP has to be filed against both, the order of rejection review application and the original order otherwise it is not maintainable.

SLP is not maintainable against the deceased person or where the amount involved in the matter is so small.

Who can file SLP

1. SLP can be filed by the parties i.e. who were parties in the court below.

2. Any other person who is aggrieved by any judgment or decree or order or determination or sentence passed by any court or tribunal with leave of the court by filing application for leave to file SLP.

3. The court can suo moto invoke the jurisdiction under article 136.

4. Private party can also file SLP against the judgment of acquittal by the High Court if state has refrained from filing appeal and such party can show that impugned order if left undisturbed would led to serious miscarriage of justice as held in the case of Sugaram @ Chugaram vs. State of Rajasthan, 2006.

Limitation Period

1. Order XXI Rule 1 of Supreme Court Rules, 2013 prescribes that where the certificate of fitness to appeal to the Apex Court was refused by the High Court, then the SLP shall be filed within a period of 60 days from the date of order of refusal. However, in any other case it can be filed within 90 days from the judgment or order to be appealed from.

2. Order XXII Rule 1 of Supreme Court Rules, 2013 states that period of limitation is 60 days for filing SLP in the case where certificate for leave to appeal is refused by the High Court from the date of order of refusal.

3. Against the judgment of sentence to death, SLP shall be filed with a period of 60 days from the date of judgment sought to be appealed from.

4. Against any other judgement or order not involving sentence to death, SLP (criminal) shall be filed with a period of 90 days from the date of judgment sought to be appealed from.

Note- SLP filed after the period of limitation is not as a general rule be maintainable, however delay can be condoned if the petitioner can explain the delay by establishing the existence of sufficient cause for the entirety of the period from when the limitation period commenced till the actual date filing by virtue of section 5 of the Limitation Act, 1963 applies on SLP also.

To conclude, jurisdiction exercised by the Supreme Court under article 136 is an extra-ordinary jurisdiction which is to be exercised very sparingly and not in a routine manner. The provision per se does not impose any limitation upon the court, however the discretion while invoking the provision is exercised on the premises of wisdom and good sense of justice of the judges.