Article 136 of the Constitution empowers the Supreme Court, in its discretion, to grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed by any court or tribunal in India, except tribunals constituted under laws relating to the Armed Forces. The special leave petition, or SLP, is the vehicle by which that discretion is invoked. It is the most frequently filed proceeding in the Supreme Court, and also the most frequently misunderstood.
An extraordinary and residual power
An SLP is not an appeal, and it is important to begin there. No litigant has a right to be heard on the merits by the Supreme Court under Article 136; the petitioner asks first for leave, and only if leave is granted does the matter become an appeal. The settled description of the jurisdiction is that it is extraordinary and residual, meant to be exercised sparingly. In practice, the Court looks for a substantial question of law of general importance, a grave miscarriage of justice, or perversity in the findings under challenge. The provision reaches every court and tribunal in the country, which is precisely why the Court guards the gate carefully.
What the Court is slow to do
Certain features of a case tell against the grant of leave as a matter of settled practice. The Court is slow to reappreciate concurrent findings of fact recorded by the courts below, and slower still where the challenge is essentially an invitation to re-weigh evidence. It is reluctant to interfere with discretionary orders, such as those on interim relief, unless the discretion has been exercised in a manner no reasonable court could adopt. And it discourages petitions that bypass a remedy available below: where a review, revision or appeal lies before the High Court or the tribunal, the Court frequently relegates the petitioner to that remedy rather than entertain the SLP itself.
Limitation under the Supreme Court Rules, 2013
The Supreme Court Rules, 2013 prescribe two periods. Ordinarily, a special leave petition must be filed within ninety days from the date of the impugned judgment or order. Where the petitioner first sought a certificate of fitness to appeal from the High Court and the certificate was refused, the period is sixty days from the order of refusal. Delay beyond these periods can be condoned on sufficient cause, for which a separate application supported by an affidavit must accompany the petition, explaining each day or at least each distinct span of the delay. The Court is strict with delay that is unexplained or casually explained, and long delays are a frequent ground of dismissal at the threshold.
Filing: the Advocate-on-Record and the anatomy of the petition
Filing in the Supreme Court is channelled through the Advocate-on-Record system. Only an advocate who has qualified the Advocate-on-Record examination and is registered as such with the Court may file a petition, act for a party and take procedural steps on the record. Senior counsel and other advocates argue the matter on the instruction of the Advocate-on-Record, who remains answerable to the Court for the filing.
A well-drafted SLP is built around the question or questions of law said to arise from the impugned judgment. The paper-book then follows a settled order: any applications for condonation of delay in filing or refiling; the synopsis and list of dates, which together narrate the litigation compactly; the grounds on which leave is sought; the certified copy of the impugned judgment; annexures, which must be documents that were part of the record before the courts below; and the affidavit of the petitioner verifying the contents. On filing, the Registry scrutinises the petition and notifies defects, which must be cured within the time allowed before the matter is registered and listed.
Listing, the motion hearing and outcomes
Once registered, the petition is listed for a motion hearing, typically before a Bench of two judges. The hearing is ex parte in form: the Court hears the petitioner on whether leave should be granted at all.
1. Certified copy
Obtaining the certified copy of the impugned judgment, from which limitation is computed.
2. Drafting
Settling the questions of law, synopsis, list of dates and grounds.
3. Filing through an AOR
Presentation of the petition and applications by the Advocate-on-Record.
4. Registry scrutiny
Defects notified by the Registry are cured and the matter is registered.
5. Listing
The petition appears before a Bench, typically of two judges, for the motion hearing.
6. Motion hearing
Dismissal in limine, issuance of notice, or grant of leave converting the SLP into an appeal.
Several outcomes are possible. The petition may be dismissed in limine, with or without a speaking order. Notice may issue to the respondent, after which the matter is heard with both sides present. Leave may be granted, upon which the petition is converted into a civil or criminal appeal. At any of these stages the Court may pass interim orders, such as a stay of the operation of the impugned judgment, a direction to maintain status quo, or conditional protection, for instance on deposit of a part of the decretal amount. Where the questions raised are already pending in other matters, the petition may be tagged with them.
It is the settled position that the dismissal of a special leave petition in limine, particularly without reasons, does not amount to an affirmation by the Supreme Court of the reasoning of the judgment below; it means only that the Court declined to exercise its discretion to grant leave.
The respondent, criminal matters and costs
A respondent who apprehends an SLP may lodge a caveat under Section 148A of the Code of Civil Procedure, ensuring that no ex parte interim order is passed without hearing the caveator. Once notice issues, the respondent places its case on record through a counter-affidavit. Criminal SLPs share the same discretionary character, though where personal liberty is at stake the Court can and does interfere even with concurrent findings in a fit case. Finally, the discretion cuts both ways: a petition found to be frivolous or an abuse of the process invites dismissal with costs, and on occasion exemplary costs.
A closing word
Article 136 is a safety valve, not a third round of litigation. A petition that identifies a genuine question of law or a demonstrable miscarriage of justice, filed in time and in proper form through an Advocate-on-Record, gives the discretion something to act upon. A petition that merely seeks a re-hearing of facts rarely survives the motion stage.
Frequently Asked Questions
Is a special leave petition available against interim orders?
Yes. Article 136 extends to any order in any cause or matter, and interlocutory orders are not excluded. In practice, however, the Court is especially reluctant to interfere at an interim stage, since the matter is still alive before the court below. A petitioner challenging an interim order must ordinarily show that it causes serious and irreversible prejudice which cannot await the final outcome.
How long does the motion stage of an SLP take?
There is no fixed period. A petition free of Registry defects is usually listed for its first motion hearing within a few weeks of filing, and urgent matters can be mentioned for earlier listing. If notice is issued, the interval before the next effective hearing varies with the state of the board, and the notice stage as a whole may run from weeks to several months.
Must a petitioner always approach the Supreme Court within ninety days?
Ordinarily yes. Under the Supreme Court Rules, 2013, the petition must be filed within ninety days of the impugned judgment or order, and within sixty days where the High Court has refused a certificate of fitness to appeal. Delay can be condoned on sufficient cause shown in a supporting application, but the Court is strict with delay that is long or unexplained.
Does the Supreme Court hear new evidence in an SLP?
Ordinarily no. The petition is decided on the record of the courts below, and the annexures must be documents that formed part of that record. The Court is not a forum for a fresh trial of facts. Additional material is received only in exceptional situations and with the leave of the Court, typically through a specific application explaining why it was not produced earlier.