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Why, When and Where to approach Hon’ble Supreme Court

under Article 136 of Constitution of India?

In the common minds, question arises as to when, where and why to


approach Hon’ble Supreme Court under Article 136 of Constitution of
India? When any dispute arises b/w parties or when a FIR is about to
register or when already registered, or any dispute of civil,
commercial, service or any issue which either create/destroy rights or
liabilities of any person, has a right to initially approach First Court
called as Trial Court, depending upon the circumstances it may be
Civil Judge or District Judge or even High Court in case of civil disputes
or/and to approach Magistrate Court or District Court or High Court
in cases of criminal disputes and when issues/matter are governed by
special law, then sometimes, it is possible that special tribunal like
CAT, NCLT, Service Tribunal, DRT etc has been constituted by Central
Government, which decide & settle rights of parties pertaining to
those special disputes.

When the dispute is decided or settled by these aforementioned


courts by passing a judgment or order, then aggrieved party i.e. party
against whom order or judgment is passed has right to file first appeal
before either First Appellate Court i.e. District Court or High Court in
their territory in case of civil or criminal nature of disputes, or if,
special court is constituted then first appeal goes to appellate courts
like DRAT, NCLAT, NCDRC etc.

Finally, when rights or dispute is decided by aforementioned first


appellate court except when there is no possibility to challenge the
order or judgment passed by First Appellate Court before Second
Appellate Court by filing second appeal, then aggrieved party has
right to challenge the order or judgment passed by those first
appellate court or in case Second Appellate Court to approach and
challenge the said order before Hon’ble Supreme Court under Article
136 of Constitution of India by way of filing Special Leave Petition.

Who can file Special Leave Petition? Any aggrieved party can
challenge the order i.e. it can be order ad-interim or interim order
passed by First Appellate Court (i.e. when there is no possibility to file
second appeal before Second Appellate Court), if affecting the rights
of parties or if final order is passed by First Appellate Court can be
challenged before Hon’ble Supreme Court of India under Article 136
of Constitution of India by way of filing Special Leave Petition.

Now, what is special leave petition and what is so special in it? It is


"residual power" in the hands of Supreme Court of India to be
exercised only in cases when any substantial question of law is
involved or gross injustice has been done. It provides the aggrieved
party a special permission which is discretionary in nature to be heard
in Apex court in appeal against any judgment or order of any
Court/tribunal in the territory of India.

By virtue of this Article, the Court can 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. Though there is no limit in this Article, but it is permissible
and practical to first exhaust the legal remedy before below Courts
including High Court and then if being aggrieved, challenge the said
order or judgment before Apex Court.

Next question arises as to what are grounds on which order or


judgment can be challenged before Hon’ble Supreme Court. Though
there is difficult to mention all the circumstances under which
challenge can be laid before Apex Court under Article 136 of
Constitution of India but nevertheless, it may include (1) Absence of
speaking order (2) Error apparent on face of record (3) Violation of
Principles of Natural Justice (4) Disregard to forms of legal process
(5) Admission of improper evidence (6) Miscarriage of Justice (7)
Deprivation of fair trial in criminal cases (8) Finding is based on no
evidence (9) Finding is perverse or based on inadmissible evidence
(10) Violation of Judicial Precedents.

Another question is what is the permissible time within which it is


permissible to approach Apex Court? That Limitation act governs and
prescribe the time period within which it is appropriate for any person
to approach and challenged the orders before Below Courts as well
as Apex Court to file Special Leave Petition under Article 136 of
Constitution of India. As per limitation act, SLP can be filed against
any order or judgment of High Court within 90 days from the date of
judgement or order. However, time spent in getting the certificate
copy of impugned order can be excluded in counting the time.

What to say in Special Leave Petition? The petition called SLP is


required to state all necessary and relevant facts with brief synopsis
and sequence of events and most importantly with question of law
and grounds which is required to be decided by Apex Court in that
case. The SLP must be clear and concise and it is equivocally
important to reply and mention the relevant judgments of Supreme
Court on the same issue or if similar issue was decided by Supreme
Court in another case, to have better understanding of question of
law.

The Special Leave Petition can be filed through Advocate on Record


(in short AOR), practising in Supreme Court and it must be certified
by AOR with affidavit of petitioner and in bail matter, it petitioner is in
jail, then affidavit could be of near relative or pairokar. The Special
Leave Petition must accompany all the relevant documents
necessary for Supreme Court to form an opinion to decide the issue
raised before Supreme Court, if those annexures are not available in
English, then those documents in vernacular language must be
translated in English, which filing along with Special Leave Petition.

Though it is difficult to enumerate when Special Leave Petition is


possible, but a brief list is mentioned here where SLP is permissible
against order or judgment passed when (1) Bail refused or Bail
cancelled if earlier granted by High Court (2) Criminal Appeal filed
before High Court is either dismissed or allowed, then depending
upon circumstances it can be challenged by victim as well as accused
(3) In Civil Matters, First Appeal or Regular Second Appeal when
decided by High Court (4) In MACT matter when decided by High
Court (5) Service Matter when decided by Division Bench of High
Court in LPA or Writ Appeal and when it is not possible to file LPA or
Writ Appeal, then service matter if decided by Single Judge of High
Court in Writ Petition (6) Any order passed in Writ Petition by High
Court in any type of case (7) Appeal decided by NCLAT, NCDRC or
DRAT (8) Revision order passed by NCDRC (9) Order passed by
NGT (10) In Arbitration Matter, appointment of arbitrator by High
Court etc.

After the SLP is filed, the Supreme court hears the case and
depending on the merits of the case allows the respondent to state
their views in a counter affidavit. Thereafter, the court decides if
special leave can be granted or not. If Supreme court is of opinion
that substantial question of law to be decided by Supreme Court, then
Supreme Court will grant leave and the SLP will be treated as Appeal
and Supreme Court will exercise its appellate jurisdiction and hear the
matter.