INTRODUCTION
Our founding fathers laid down a definite framework differentiating legislative, executive and judicial powers to materialise the principle of separation of power. The Constitution has founded two levels of courts namely the Supreme Court of India and the High Courts and defined their jurisdiction and power. Supreme Court of India has been conferred the role of the highest appellant court. Its original and appellant jurisdiction has been defined in the constitution itself from Art. 131 to Art. 136. Supreme Court has appellant jurisdiction for criminal appeals subject to qualifications provided in Art. 134.[1] Whereas, Art. 136 confers on the Supreme Court’s extraordinary and discretionary power to entertain any appeal against the judgement delivered by any court in India.[2] In Bachan Singh giving dissenting opinion Justice Bhagwati observed the need and reliance of judges on frameworks, rules and legislations for stability, uniformity and predictability in law to uphold the rule of law.[3] Supreme Court itself from time to time has laid down guidelines through rules, judgements and instances of following precedents to ensure the rule of law prevails when exercising unfettered power under Art. 136.
ANALYSIS OF CRIMINAL APPELLANT JURISDICTION
It has been a well-accepted principle that the right to appeal is not inherent or fundamental but a statutory right. Special leave appeals under Art.136 do not provide any exception to this rule. It merely saves a right to appeal of the aggrieved party which is barred by limitations placed in Arts. 132 to 134 subject to the discretion of the Supreme Court.
SCOPE OF LEGISLATIVE INTERFERENCE: –
Wordings of Art. 136 does not provide any scope for legislative interference upon the jurisdiction of the Supreme Court as in Art. 134.[4] Any qualification or limitation upon jurisdiction cannot be imposed through a statute unless a constitutional amendment to this effect has been enacted.
INGREDIENTS OF ART. 136: –
Art. 136 can be split into three parts.[5] The first is the discretionary power of the court to grant leave to entertain the appeal. The second ingredient is when special leave is granted under Art. 136, the petition is converted into an ordinary appeal and the court can exercise its appellant jurisdiction in the matter. The third ingredient is an exception in laws relating to armed forces barring the court from exercising its jurisdiction under Art. 136.
DIFFERENCE BETWEEN ART.32 AND ART. 136: –
Apex court’s writ power and jurisdiction under Art. 32, have been limited to only Part III of the Constitution.[6] The aggrieved party can approach Apex court only when their fundamental rights are trampled upon and this article acts as an original jurisdiction of the Supreme Court. Whereas, Art. 136 is purely appellant jurisdiction without any qualification or limits on subject matter.[7]
PREREQUISITE CONDITIONS IMPOSED BY SUPREME COURT: –
Special leave petition under Art. 136 (hereinafter SLP) shall be filed within 60 days from the date the High Court has refused to grant the certificate and operation, extension and computation of this time is subject to the Limitation Act, 1963.[8] SLP also has to be confined to pleadings made before the High Court against whose judgment appeal is filed.[9] Before filing SLP if the aggrieved party is the offender, he has to surrender to serve punishment otherwise offender has to make an application for exemption from surrendering.[10]
NOT AN ORDINARY APPELLANT JURISDICTION: –
The Supreme Court from time to time has underlined that the power conferred by the Constitution under Art. 136 is vast but it shall not be used to convert the Supreme Court to an ordinary court of appeal. The court shall only exercise this jurisdiction in criminal matters when the High Court did not pronounce the correct law or made a grave injustice to the aggrieved party.[11] When a criminal appeal is preferred by an SLP Supreme Court is not necessarily bound by provisions of the Code of Criminal Procedure, 1973, but the Court has to ensure the principle of “fair procedure” is not violated.[12]
GROUNDS FOR GRANTING SPECIAL LEAVE: –
Apex court had issued various warnings against turning its extraordinary appellant jurisdiction into a regular appellant jurisdiction. In Ganga Kumar Srivastava v State of Bihar, the Supreme Court laid down some guidelines to limit the scope of entertaining criminal appeals under Art. 136.[13] The guidelines are as follows,
- When there is a concurrent finding by lower courts the Supreme Court shall not interfere.
- Only when the apex court finds that the High Court has acted perversely or improperly it can interfere in the finding of facts given by the High Court.
- Extraordinary power conferred on the Supreme Court shall be invoked only when an exceptional circumstance arises where a question of law concerning the general public or a decision of lower courts shocks the conscious appears.
- When evidence relied on by the prosecution is unreliable and unacceptable in such a nature that the court feels highly unsafe to act upon such evidence it can interfere.
- In such a case where findings of lower courts are vitiated due to an error of law of procedure or they are contradictory to natural justice or the evidence is misleading and the finding of the court is perverse and unsupportable based upon evidence on record court shall invoke its jurisdiction.
EFFECTS OF DISMISSAL OR GRANT OF SPECIAL LEAVE: –
As the Supreme Court has followed a consistent rule that special leave shall be granted in special or extraordinary circumstances only, special leave appeal may be dismissed without going into the merit of the appeal. In such cases where the appeal is dismissed at the grant stage only, such a decision does not attract the doctrine of merger.[14] If refusal for granting the special leave is made through a speaking order, then it has two implications.[15] First is whatever is spoken through judgment as per Art. 141 it will be the law of the land and binding upon the lower court.[16] The second implication is whatever finding, or observation is made by the court during the dismissal of the appeal is binding upon the parties and the principle of res judicata will be attracted to such a decision.[17] When special leave is granted and by going through merits court makes any order by invoking its jurisdiction, the doctrine of merger will be attracted to such order.[18]
CONCLUSION
Art. 136 confers an absolute, discretionary and unqualified power upon the Supreme Court of India. Under this article, the Supreme Court can entertain an appeal against any adjudicating body. Unlike Art. 32, the Supreme Court cannot entertain any petition or application under Art. 136 in its original jurisdiction. Power under Art. 136 is different from other appellant powers as the parliament cannot interfere with the jurisdiction or power of the Court through normal legislation. When unfettered discretionary power is exercised there is a chance that arbitrariness and inequality will arise in the exercise of such power and the same will dent the very foundation of the rule of law. Entertaining every special leave appeal received by the apex court, will also unnecessarily strain and hamper the effectiveness of the judiciary resulting in slow justice. To avoid such incidents, the Supreme Court has rightly placed some prerequisite conditions when entertaining the appeal under Art. 136 by forming various rules on this subject. By placing limitations on the scope of appeal under Art. 136 by various judgements, the Supreme Court has ensured that this special provision of appeal is not used as an ordinary mode of appeal. When exercising this Constitutional provision, it has to be kept in mind that, the Constitution drafter gave an extraordinary and unfettered power to the apex court to uphold the rule of law and to remove any injustice incurred upon aggrieved person by High Courts or any adjudicating body. To ensure equality and remove arbitrariness the qualifications placed through rules or precedents need to be applied but in pursuit of those limitations, injustice inflicted upon any person and larger public interest shall not be ignored.
Author(s) Name: Viraj Sudhir Thakur (Law Center-1, Faculty of Law, University of Delhi)
References:
[1] The Constitution of India 1950, art 134
[2] The Constitution of India 1950, art 136
[3] Bachan Singh v State of Punjab AIR [1982] 3 SCC 24 (Bhagwati J)
[4] The Constitution of India 1950, arts 136, 134
[5] The Constitution of India 1950, art 136
[6] The Constitution of India 1950, art 32
[7] The Constitution of India 1950, art 136
[8] Supreme Court Rules 2013, order XXII, r 1
[9] Supreme Court Rules 2013, order XXII, r 2 (3)
[10] Supreme Court Rules 2013, order XXII, r 5
[11] Bihar Legal Support Society New Delhi v Chief Justice Of India And Another [1986] 4 SCC 767
[12] State of U.P. v Dharmendra Singh and Ors [1999] 8 SCC 325
[13] Ganga Kumar Srivastava v State of Bihar [2005] 6 SCC 211
[14] Kunhayammed and Ors v State of Kerala and Ors [2000] 6 SCC 359
[15] ibid
[16] The Constitution of India 1950, art 141
[17] Kunhayammed (n 14)
[18] ibid
