Every year the Supreme Court refuses leave in the overwhelming majority of special leave petitions placed before it. A growing number of those refusals now come with something extra: an order of costs against the petitioner, and sometimes pointed observations about how the petition came to be filed at all. This explainer looks at why hopeless SLPs attract judicial displeasure, what a costs order actually means for the litigant, and how to tell a petition worth filing from one that will only make matters worse.
An extraordinary power, routinely invoked
Article 136 of the Constitution allows the Supreme Court, in its discretion, to grant special leave to appeal from any judgment, decree, determination, sentence or order of any court or tribunal in India. The width of the words is deliberate — and so is the word discretion. The Supreme Court has repeatedly described the jurisdiction as extraordinary, to be exercised sparingly, in cases involving a substantial question of law or a grave miscarriage of justice. It has just as repeatedly deprecated the practice of treating an SLP as an automatic third round available to every losing party.
The gap between those two propositions — an exceptional power, and tens of thousands of routine invocations of it — is where costs orders now live.
Categories that attract displeasure
Concurrent findings, no question of law
Two courts have examined the evidence and agreed. A petition that asks for a third appreciation of the same evidence, without identifying any legal question, is the paradigm hopeless SLP.
Luxury litigation
Parties with resources who litigate every point to the last court because they can afford to, using the process itself as leverage against a weaker opponent. Courts increasingly respond with costs calibrated to the conduct.
Mechanical government appeals
Departments filing SLPs as a matter of routine — often to shift responsibility for accepting an adverse order from the officer to the court. The Supreme Court has repeatedly deprecated this practice and has, on occasion, spoken of recovering costs from the officials concerned.
Suppression and re-litigation
Petitions that conceal material facts, orders or parallel proceedings, or that attempt to reopen what earlier rounds have settled. Candour failures are treated as an independent ground for dismissal.
What a costs order means
A dismissal with costs is not a symbolic gesture. The amount is payable by the petitioner, sometimes to the opposite party and sometimes to a legal services authority or similar institution. Exemplary costs are deliberately set at a level intended to sting, because their purpose is deterrence. For an institutional litigant, a costs order can trigger internal accountability; for a private litigant, it converts a speculative filing into a direct financial loss on top of the fees already spent. And unlike the dismissal itself, which is often unreasoned, a costs order usually comes with observations — observations that remain on the record.
That last point matters more than the money. Review within the Supreme Court is narrower than Article 136, and the curative jurisdiction is narrower still. A dismissal accompanied by adverse observations hardens the record against each of these, and can complicate a later review before the High Court, since a reasoned dismissal may attract the doctrine of merger. A hopeless SLP is not a free option; it can consume the remedies that remain.
The certificate route, distinguished
Article 136 is not the only road to the Supreme Court. The Constitution separately permits appeals on a certificate of fitness granted by the High Court itself, where the High Court certifies that the case involves questions deserving the Supreme Court's consideration. The certificate route is the orthodox channel: it asks the court that decided the matter to acknowledge that a genuine question travels upward. Special leave bypasses that filter, which is precisely why the Supreme Court guards it. A litigant who never even sought a certificate, where one was realistically available, starts an SLP with a credibility deficit.
Counsel's duty of candid advice
The decision to file sits, in practice, on counsel's assessment. The professional duty is to advise candidly on prospects — including the advice that a matter should end. That means telling a client that concurrent findings of fact are close to unappealable without perversity; that anger at an outcome is not a ground; that limitation is running and condonation is discretionary; and that a dismissal with costs is a realistic downside, not a theoretical one. An SLP settled and filed merely because the client insists, without a genuine ground, serves neither the client nor the court.
When an SLP is worth filing
Petitions in these categories are what Article 136 exists for, and they are drafted differently: the question of law is framed at the outset, the perversity is demonstrated from the record rather than asserted, and the petition is scrupulously candid about everything that cuts against it. The paradox of Article 136 practice is that restraint is persuasive — the petition that concedes what must be conceded, and stakes itself on one genuine question, is the one that gets leave.
The bottom line
The Supreme Court's message has been consistent: special leave is an exception, costs await those who treat it as a formality, and the filter is applied to governments at least as strictly as to private parties. Before filing, the only honest questions are whether the case presents a real question of law or a genuinely perverse result, and whether the litigant can afford to be wrong about the answer.
This article is for general information only and is not legal advice or a solicitation.
Frequently Asked Questions
Does the Supreme Court really impose costs for filing an SLP?
Yes. The Court has the power to impose costs on frivolous or speculative litigation and has used it with increasing frequency, including exemplary costs designed to deter rather than merely compensate. Costs have been imposed on private litigants and on government departments alike, sometimes with directions that the amount be recovered from the officers responsible for the decision to litigate.
Is an SLP against concurrent findings of fact ever worthwhile?
Rarely, and only where the findings can genuinely be characterised as perverse — meaning no reasonable court could have reached them on the evidence, or they rest on inadmissible material or ignore vital evidence. A petition that simply re-argues the appreciation of evidence after two courts have agreed invites summary dismissal and, increasingly, costs.
How is an SLP different from an appeal on a certificate of fitness?
The Constitution separately provides for appeals on a certificate granted by the High Court itself, where the High Court certifies that the case deserves the Supreme Court's consideration. Article 136 operates outside that channel: it is the Supreme Court's own overriding discretion, invoked directly by the litigant. Where a certificate route is genuinely available, seeking one is the more orthodox course.
Can a dismissed SLP hurt my chances in later remedies?
It can. Review before the High Court after an SLP is dismissed is approached cautiously, and if the Supreme Court dismissed with reasons the doctrine of merger may leave nothing to review. Within the Supreme Court, review and curative jurisdictions are progressively narrower than Article 136 itself. A poorly chosen SLP can therefore harden the record against every remedy that follows.