Friday, 1 July 2022

SPECIAL LEAVE PETITION

 SPECIAL LEAVE PETITION

Article 136 of the Indian Constitution, allows the Supreme Court to grant special leave to appeal against any judgment or order in any matter or case, made by any court or tribunal in the country. The Supreme Court is vested with the absolute power of interpretation of the constitution being the ultimate guardian of it.

The judgment, decree or order against which the appeal is being made must have the character of judicial adjudication. This implies that purely administrative or executive order or ruling cannot be a matter of appeal and further, it is also important that the authority, whose judgment or order is being appealed against, must fall under the definition of a court or a tribunal. The Special Leave Petition shall not apply to any judgment or order handed down by any court or tribunal involving the armed forces. This is the only exclusion as is given in the clause 2 of Article 136.

The petition has to contain all the facts which are important for the SC to decide whether an SLP may be admitted or not. This petition has to be duly signed by the Advocate on record and should also be inclusive of the petitioner’s statement that no other petition has been filed in the HC. The same should also have a copy of the judgment the SLP is sought against, along with a verifying affidavit and all relevant documents.

After the petition is filed, the court hears the case and depending on the merits of the case allows the opponent party to state their views in a counter affidavit. Thereafter, the court decides if special leave can be granted or not. If leave is granted, the SC will exercise its appellate jurisdiction. Subsequent decisions of the SC are binding on both the parties.

In the case of Kunhayammed v State of Kerala, AIR 2000 SC 2587, the discussion was about   the exercise of the jurisdiction under article 136 and if it consisted of granting of the SLP and subsequently hearing the appeal. The court has a choice to grant the SLP and if the court decides to not grant it on its findings then the appellate jurisdiction of the court does not come into existence. However, mere dismissal of the SLP petition does not mean that there is res judicata, it merely means that the case was not fit for the grant of SLP and it is open to the aggrieved party to approach the concerned court for review under article 226. 

SLP can be filed against any judgment of High Court within 90 days from the date of the judgment. However, there is flexibility at the discretion of the SC. Or it can be filed within 60 days against the order of the HC refusing to grant the certificate of fitness for appeal to SC.

In Kunhayammed v State of Kerala, AIR 2000 SC 2587, the subject of discussion was the exercise of the jurisdiction under article 136 and whether it consisted of the granting of the SLP and subsequently hearing the appeal. The court has a choice to grant the SLP and if the court decides to not allow this on its findings then the appellate jurisdiction of the court does not come into existence. However mere dismissal of the SLP petition does not mean that there is res judicata, it merely means that the case was not fit for the grant of SLP and it is open to the aggrieved party to approach the concerned court for review under article 226.

Finally, if a special leave is not granted, the parties must abide by the decisions given by the courts. Article 141 of the Constitution lays down that the law declared by the SC is binding on all courts.

 


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