Special Leave Petition- Recent Trends By: Jeba Boktiar Mondal

The Author, Jeba Boktiar Mondal is a student of second year BA.LLB (H) at Presidency University , Bangalore.

ABSTRACT

The study entitled “Special Leave Petition- Recent Trends" had undertaken to explore the new and more complex procedure for special leave petitions from tribunals and to see whether it protect the constitutional powers of the court. Extraordinary appellate jurisdiction of the Court below article 136 is important because of wide discretionary power. The words “in its discretion” in Article 136 must be taken to imply that a special leave to appeal is not a right but a privilege granted by the Supreme Court in the exercise of its discretion in certain cases. So, an application for special leave to appeal by the Supreme Court may be filed as a matter of right. While deciding the scope of appeal by special leave petition under article 136 Supreme Court says that article 136 is like as article 226, mean it was a discretionary remedy and SC wasn't certain to interfere although there's a slip of law or reality within the impugned order.

The current situation regarding special leave petition is that Article 136 of the constitution on the Supreme Court is discretionary; it does not confer a right to appeal on a party to litigation. . Supreme Court offers it just for satisfying the demand of justice. At present practice of filing of special leave petition against all kinds of orders of high court or other authorities without even realise of scope of article 136,it seems article 136 never meant to be a standard forum of attractiveness in the slightest degree. Within the year 1997 there have been solely 19,000 unfinished cases within the Supreme Court. Now, there are over 55,000 unfinished cases. During a few years time the pendency can cross 100 thousand cases. In 2009 virtually 70,000 cases were filed within the Supreme Court of that an amazing variety were Special Leave Petitions under Article 136.For the aim of partitioning the matter of burden on Supreme Court and entertaining the special leave petition without realize the scope of article 136, Supreme Court should curtail for entertain special leave petition.

Special leave petition significantly altered the jurisdiction of supreme court in the case of Pritim singh v The state,  supreme court observed that a more or less uniform standard should be adopted for granting special leave, now days its so much burden on the case regarding special leave petition in supreme court, and supreme court are entertaining against all sundry kinds of orders passed by any court or tribunal ,if these things continuously followed by supreme court then after some time supreme court will definitely collapse under its own burden.

Keywords: scope, discretion, litigation, proceedings, special leave petition, tribunal.

1. INTRODUCTION

Special Leave Petitions in India (SLP) holds a main place within the Judiciary of India, and has been provided as a "residual power" within the hands of Supreme Court of India to be exercised solely in cases once any substantial question of law is concerned, or gross injustice has been done. It provides the aggrieved party a special permission to be detected in Apex court in charm or appeal against any judgment or order of any Court/tribunal within the territory of Bharat (except military assembly and court martial.[1] 

The Constitution of India under the supervision of Article 136 vests the Supreme Court of India, the apex court of the country, with a special power to grant special leave, to approach against any judgment or order or decree in any matter or cause, passed or created by any Court/tribunal within the territory of Asian country. It’s to be utilized in case any substantial constitutional question of law is concerned, or gross injustice has been done. It’s discretionary power unconditional within the Supreme Court of Asian country and therefore the court might in its discretion refuse to grant leave to attractiveness. The aggrieved party cannot claim special leave to appeal under Article 136 as a right, however it's privilege unconditional within the Supreme Court of India to grant leave to appeal or not.

In civil cases the special leave to appeal under the supervision of this article wouldn't be granted unless there's some substantial question of law or general public interest concerned within the case, equally in criminal cases the supreme court won't interfere below article 136 unless it's show that “substantial and grave injustice has been done which the case in question presents options of spare gravity to warrant a review of the choice appealed against.”

Restrictions

SLP can be filed against any judgment or decree or order of any High Court /tribunal in the territory of India; or, SLP can be filed in case the High court refuses to grant the certificate of fitness for approach or appeal to Supreme Court of India. SLP may be filed against any judgment of tribunal among ninety days from the date of judgement; or SLP may be filed among sixty days against the order of the tribunal refusing to grant the certificate of fitness for appeal to Supreme Court. Any aggrieved party will file SLP against the judgment or order of refusal of grant of certificate.

This petition is needed to state all the facts that are necessary to modify the court to see whether or not SLP have to be compelled to be granted or not. It’s needed to be signed by Advocate on record. The petition ought to additionally contain statement that the petitioner has not filed the other petition within the tribunal. It ought to be amid a licensed copy of judgement appealed against an legal document by the petitioner verifying an equivalent and will even being amid all the documents that a part of pleading in judicature or lower court.[2]

The scope of power vested with the Supreme Court of India under Article 136

The constitution of India vest "discretionary power" within the Supreme Court of India. The Supreme Court of India might in its discretion be able to grant special leave to charm from any judgment or decree or order in any matter or cause created or lapsed any Court/tribunal within the territory of India. The Supreme Court of India may refuse to grant the leave to charm by sweat its discretion.

An aggrieved party from the judgment or decree of judicature cannot claim special leave to charm as a right however its privilege that the Supreme Court of India is unconditional with and this leave to charm is granted by it solely. The aggrieved party will approach the Apex Court below Article 136 just in case any constitutional or legal issue exists and which might be processed by the Supreme Court of this country. This may be detected as civil or criminal charm because of the case.

1.1 RESEARCH METHODOLOGY

Descriptive and analytical methodology has been followed by the researcher throughout the paper. Secondary sources like books, articles websites have been referred by the researchers for the accomplishment of this paper.

2. INDISCRIMINATE FILING OF SLPs

Each day a vast number of SLPs are filed and rejected on several procedural, technical and substantive reasons. The delay caused to the court is actually detrimental to the health of the institution of judiciary. As discerned by K.K. Venugopal in 1997 there have been solely 19,000 unfinished cases during this Court however currently, there are nearly over 55,000 unfinished cases. In an exceedingly few years’ time pendency can cross one lakh near about cases. In 2009, almost 70,000 cases were filed during this Court, of that an awesome range were Special Leave Petitions beneath Article 136. Thus, it's discovered that the magnitude of the matter in Asian country is quite huge. Right to a speedy trial is construed as a right under Article 21 and Article 14, within the chapter of fundamental rights in the Indian Constitution In P.N. Kumar v. Municipal Corporation of Delhi[3] disposing of a writ petition under Article 32 he observed that:

“This Court has no time today even to dispose of cases which have to be decided by it alone and by no other authority. A large number of cases are pending from 10 to 15 years. Even if no new case is filed in this Court hereafter, with the present strength of Judges it may 6 take more than 15 years to dispose of all the pending cases.”

 It is vital to differentiate the judicial writ jurisdiction from that of special leave. The special leave permits the Supreme Court to admit for deciding not simply a judicial decision however any order of the court. To it extent Article 136 grants the Supreme Court the ability to review any call of any court or unit whereas jurisdiction of the court beneath Article 32is a creative jurisdiction granting bound judicial writ remedies to be filed before the court. Article 32 is a matter of right of the party before the court, whereas

Article 136 may be a matter of discretion of the court. Supreme Court on many occasions has reiterated the perform and established the holiness of Article 136.[4]

3. CURRENT SITUATION REGARDING SPECIAL LEAVE PETITION

Article 136 of the constitution on the Supreme Court is discretionary, it does not confer a right to appeal on a party to litigation, and Supreme Court provides it only for satisfying the demand of justice. 

Supreme court observe In the case of Ashok Nagar Welfare Association Vs. R.K. Sharma[5] that if cases where special leave is granted, the discretionary power vested in the Court continues to remain with the Court even at the stage when the appeal comes up for hearing. At present practice of filling slp against all kinds of orders of high court or other authorities without even realise the scope of article 136, its seems that article 136 never meant to be a ordinary forum of appeal at all. the role of supreme court is to deal with the important cases which related to the issue like constitutional questions or where grave injustice had been done, but this is not happening currently and also the apex court entertains all types of cases that create burden thereon, due to that supreme court cant able to traumatize necessary question with reference to the constitution.

In the recent case of Mathai @ Joby v. George[6], the court discussed and relied on Senior Advocate Mr. K. K. Venugopal’s R.K. Jain Memorial Lecture delivered on 30/01/2010 and quoted a few statistics reproduced herein. In the year 1997 there were only 19,000 pending cases in the Supreme Court. Now, there are over 55,000 pending cases. During few years time the pendency can cross 100 thousand cases. In 2009 virtually70, 000 cases were filed within the Supreme Court of that an awesome variety were Special Leave Petitions underneath Article 136. Every of the thirteen Divisions Benches need to dispose of regarding sixty cases during a day. In matters involving terribly serious stakes, 4-5 Senior Advocates on either facet would be standing up at constant time and addressing the court, typically at the very best pitch potential. In line with Frankfurter J. adequate study, reflection and discussion on the a part of judges is critical for that fruitful interchange of minds that is indispensable to thoughtful, unhurried higher cognitive process and its formulation in learned and spectacular opinions.

This case has primarily dealt with the issue of the abuse of the Constitutional provision of filing SLPs. In the present days every kind of special leave petitions are being filed within the Supreme Court against all types of order. For instance, if in a suit the trial court allows an amendment application, the matter is often contested right up to the SC. Similarly, if the delay in filing an application or appeal is condoned by the Trial Court or the appellate court, the matter is fought up to the SC. Consequently, the arrears within the SC are mounting and this Court has much been regenerate into a normal judicature. This was never the mens rea of Article 136 of the Constitution.

In Mathai Joby v. George, the SLP has been filed because the trial court denied a second opinion on the forensic tests on a will. The case cited an embarrassment of cases to forward the read that such SLPs shouldn't be amused by the court or that not all SLPs for any reason and cause ought to be allowed. It forwarded the subsequent views N. Suriyakala vs. A. Mohandoss and others[7], clarify the scope of article 136 of the constitution according to which article 136 is not a regular forum of appeal at all. It's a kind of a residual provision which permit the Supreme Court to interfere with the judgment or order of any court or judicature in India in its discretion.

In RamSaranDas and Bros.v.Commercial Tax Officer, Calcutta &Ors[8]. And Kunhayammed v. State of Kerala,the SC held that the power under A 136 has to be exercised sparingly and only in exceptional cases. The bench stated that in Pritam Singh v. The State [9]after laying down the above discussed opinion, the SC also observed that as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters that come up before it. The Supreme Court is the Constitutional Court of the country. in Various cases filing slp makes apex court into a dispute resolution forum, this was not the intention of the constitutional provision, so it becomes very important and it also stated in the judgment of case Mathai Joby v. George, that a Constitution Bench of the SC lay down guidelines and rules under A 145 (3) of the Constitution as to what kind of cases should be entertained in special leave petitions.

Guidelines for the entertaining of Special Leave Petition[10]

For the purpose of resolving the problem of burden on Supreme Court and entertaining the slp without realize the scope of article 136, Supreme Court should curtail for entertain slp.

In the case of Mathai Joby v. George certain guidelines can be put forth for the uniformity and restriction of entertaining SLPs. Here are some guidelines that can be considered for proposal, most of which have been suggested by Senior Advocate Mr. K.K. Venugopal and approved by the bench:-

1. “All matters involving substantial queries of law regarding the interpretation of the Constitution of India.”

2. Substantial queries of law of general importance.

3. All matters of national or public importance.

4. Validity of laws, Central and State.

5. After Kesavananda Bharati, the judicial review of Constitutional Amendments.

6. To settle differences of opinion of important issues of law between High Courts.

4. THE SUPREME COURT’S VIEW IN THE MATTER ON SLPs

Even before the Indian constitution an identical discretion was bestowed to the council as is bestowed to the Supreme Court by virtue of Article 136. Sir martyr Jeannette Rankin discerned within the case, that for them to interfere with a criminal sentence there should be one thing thus irregular just about outrageous on shock the terribly basis of justice which misdirection intrinsically, even irregularity intrinsically won't live up to which there should be one thing that within the specific case deprives the suspect of the substance of honest trial and therefore the protection of the law. However these days even little matters square measure delivered to the Supreme Court. Justice Katju illustrates the purpose by citing samples of cases, wherever even permitting change petitions to claims square measure fought up to the Supreme Court. The probable misuse of Article 136 was like a shot discerned and brought care in one in all the primary SLPs within the case of Pritam Singh v State. The judgment advised thrifty and exceptional use of Article 136, and advised uniform pointers for the utilization of SLPs. The subsequent line of cases, did target the thrifty use of the provisions of Article 136 however didn't buy the need of specific pointers to be set for permitting SLPs. The result was enunciated by Justice Dalvi in an exceedingly non-public interview. He same that exploitation Article 136 for common matters, was like asking a super-specialist doctor for general medicines. Such is that the degree thirteen of misuse of SLPs. The Bengal Chemicals Ltd v. Their Workmen[11], the court restricted the scope of SLPs to cases wherever there was a violation of the principles of natural justice, inflicting substantial and grave injustice to parties. Though, this principle wasn't directly said by the following cases. The purpose to notice here is that these principles haven't been overruled though' it should be same that the jurisprudence relating to SLPs took a flip. In P.S.R. Sadhanantam v. Arunachalam[12], Justice Krishna Iyer verified the reasoning for limiting the scope of SLPs. He said, “The wider the discretionary power, the additional thrifty its exercise. Variety of times this Court as stressed that though' parties promiscuously ‘provoke’ this jurisdiction, the Court invokes the ability. It’s true that the strictest vigilance over abuse of the method of the court, particularly at the expensively exalted level of the Supreme Court, ought to be maintained and normally a ‘visa’.”

Under the constitutional framework it was the High Courts which were meant to carry out the functions as the highest appellate body, and the Supreme Court was there ideally as a supervisor. The intervention of the Supreme Court was deemed to be solely that on correct the High Courts in exceptional matters.

5. CONCLUSION

In times of dire need, where there is a monumental backlog of cases piling upon the court, it is in the interest of justice that certain measures be taken to reduce the burden of cases without either trampling upon the jurisdiction and power of the courts and the rights of the person to natural justice. The constitution of India allow to appeal in the supreme court from the high courts in article 132- 134, there are some cases where appeal can be filed direct to the supreme court , that residuary power are outside the purview of ordinary law ,and its conferred under the sec 136 of constitution of India .in this sec supreme court have the power to grant special leave petition from any judgement ,decree or order , in any cause or matter or passed by any court or tribunal in the territory of India.

Special leave petition significantly altered the jurisdiction of supreme court ,in the case of Pritim singh v the state supreme court observed that a more or less uniform standard should be adopted for granting special leave, now days its so much burden on the case regarding slp in supreme court, and supreme court are entertaining against all sundry kinds of orders passed by any court or tribunal ,if these things continuously followed by supreme court then after some time supreme court will definitely collapse under its own burden.

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