Article 136: Special Leave to Appeal
Chapter Thirty-Two
Syllabus topic 3, "Jurisdiction"
Pages 97 to 99 of 430
In one line
Article 136 is the Supreme Court's power to hear any case from any court or tribunal in India, for no reason except that it thinks it should.
In the wording a student can write in an exam: Article 136(1) provides that notwithstanding anything in Chapter IV of Part V, the Supreme Court may in its discretion grant 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; clause (2) excepts any judgment, determination, sentence or order passed or made by a court or tribunal constituted by or under any law relating to the Armed Forces.
Why it belongs in a chapter on jurisdiction
Because MU's printed topic is the single word Jurisdiction, and because in practice a very large part of Indian administrative law reaches the Supreme Court through Article 136 rather than Article 32. It is not judicial review in the strict sense; it is an appellate jurisdiction. But it is discretionary in the way review is, and the Court has used it to lay down administrative law doctrine constantly.
The words that matter
"Notwithstanding anything in this Chapter." It overrides the ordinary appellate provisions, so it is available where no appeal is otherwise provided.
"In its discretion." There is no right of appeal under Article 136. The Court grants leave; a party can only ask.
"Special leave." Two stages: leave first, then the appeal. Refusal of leave is not a decision on the merits and does not attract res judicata in the way a judgment does.
"Any judgment, decree, determination, sentence or order." The widest possible words, covering interlocutory as well as final orders.
"By any court or tribunal." A tribunal is included expressly. Whether a body is a tribunal turns on whether it has the trappings of a court and is invested with the judicial power of the State.
Clause (2). Courts martial and Armed Forces tribunals are excluded.
The self-imposed limits
The article gives an unfettered power, and the Court has fettered it by practice. It will ordinarily grant leave only where there is a substantial question of law of general importance, or where there has been a gross miscarriage of justice. It does not interfere with concurrent findings of fact. It does not grant leave merely because another view is possible. And it will not ordinarily entertain a petition where the party has an efficacious alternative remedy.
Article 136 after L. Chandra Kumar
Before 1997 a litigant before an administrative tribunal could go directly to the Supreme Court under Article 136, because section 28 of the Administrative Tribunals Act 1985 and Article 323A(2)(d) had removed the High Courts. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, changed that: no appeal now lies directly to the Supreme Court from a tribunal under Article 136, and the litigant must first move a Division Bench of the High Court within whose jurisdiction the tribunal falls.
Article 136: Special Leave to Appeal
A worked example
A State Administrative Tribunal dismisses a government servant's application against his compulsory retirement. He wants to go to the Supreme Court because he believes the High Court will take years.
He cannot. After L. Chandra Kumar the route is the Division Bench of the High Court under Articles 226 and 227, and only from that decision may he seek special leave. If instead the order had come from a National Company Law Appellate Tribunal, whose parent Act gives an appeal to the Supreme Court, he would use the statutory appeal. And if his complaint were that the tribunal had no jurisdiction at all, the High Court would still be the first stop, because Article 226 is the constitutional remedy and Article 136 is a discretionary appellate power.
Distinctions that carry marks
| Article 32 | Article 136 | Article 226 | |
|---|---|---|---|
| Nature | Fundamental right | Discretionary appellate power | Constitutional power of the High Court |
| Requires a fundamental right | Yes | No | No |
| Original or appellate | Original | Appellate | Original |
| Against a private body | Only if it is the State | Yes, if the order is of a court or tribunal | Yes, on a public duty |
| Refusal | Must be on a recognised ground | Needs no reason | Discretionary on recognised grounds |
What this does NOT mean
It does not mean Article 136 is a regular appeal. Leave is exceptional in principle, whatever the volume of petitions.
It does not mean a refusal of leave decides anything. A dismissal of a special leave petition without reasons is not a declaration of law under Article 141 and does not merge the order below into an order of the Supreme Court.
It does not mean Article 136 reaches every body. It reaches courts and tribunals, so a purely administrative authority is outside it; and clause (2) excludes the Armed Forces.
Quick revision
Article 136(1): discretionary special leave from any judgment, decree, determination, sentence or order of any court or tribunal in India, notwithstanding the ordinary appellate provisions. Clause (2) excludes Armed Forces courts and tribunals. It is a power, not a right; leave first, appeal second; the Court confines it by practice to substantial questions of law and gross miscarriages of justice. After L. Chandra Kumar no direct appeal lies from a tribunal, the High Court coming first.
Test yourself
1. Is there a right of appeal under Article 136? No. The Court grants special leave in its discretion; a party may only petition for it.
Article 136: Special Leave to Appeal
2. Which bodies are excluded by clause (2)? Any court or tribunal constituted by or under a law relating to the Armed Forces.
3. Why can a litigant no longer come to the Supreme Court directly from an administrative tribunal? Because L. Chandra Kumar directed that a tribunal's decision must first be tested before a Division Bench of the High Court under Articles 226 and 227.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.