Article 136 – “The Armour of Justice”

The three organs of the government, i.e., the legislature, executive & the judiciary are interrelated to each other in both an intrinsic and extrinsic manner. If we look at the role of the judiciary in the present years, it has increased and the scope of judicial review has also been widened. The backbone of the judiciary in India is undoubtedly the Supreme Court which acts as the protector and guarantor of fundamental rights. The Supreme Court has been given supreme power to control the infringement of fundamental rights. Therefore, we need to know what makes this Court powerful enough to make changes by going against the wishes of the government sometimes.  

Chapter IV[1] of the Constitution of India provides for the establishment of the Supreme Court, the appointment of judges of this court and various powers and allowances of the judges. Most importantly, however, this chapter provides for the jurisdiction of the Supreme Court which is the most important aspect for any court while adjudicating disputes. Jurisdiction gives the authority to a Court to try cases in a particular geographic area, or, authority over a group of persons. The Supreme Court has a wide jurisdiction which comprises Original Jurisdiction[2], Appellate Jurisdiction in both Civil[3] & Criminal[4] matters, Advisory Jurisdiction[5] in which the Hon’ble President of India may consult the Supreme Court. However, the Constitutional provision which makes this Court the apex is Article 136, i.e., Special Leave Petition.

This article will be dealing with this Article 136 and what is there in this article which makes it “The Armour of Justice”.

Article 136 postulates:

“Article 136 – Special Leave to Appeal by the Supreme Court – (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgement, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgement, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to Armed Forces.”

Article 136 does not confer the right of appeal to any party, but confers a discretionary power on the Supreme Court to interfere in suitable cases. This can be exercised in spite of other provisions for appeal contained in the Constitution or other laws.[6] It simply means if the Certificate of Appeal is immaterial to come to this Court against any judgement by any of the High Court, this power to grant special leave is a discretionary power of the Supreme Court.

Clause (1) of Art. 136 confers very wide and extensive powers on the Supreme Court. This article commences with a non-obstinate clause, “Notwithstanding anything in this Chapter”. These words are of overriding effect and clearly indicate the intention of the framers of the Constitution, that it is a special jurisdiction and residuary power unfettered by any statute or other provisions of Chapter IV of Part V of the Constitution. The power of this Article is, hence, not subject to any constitutional limitations.[7] Special Leave is granted not as a matter of course but only for good and sufficient reasons, on well-established practice of the Supreme Court.

Whether the Special Leave has to be granted under this Article or not is the discretion of the Supreme Court which has to be exercised with caution. Special Leave is to be granted in cases where grave injustice has been done to the petitioner, the question on general public importance arises and where there is a substantial question of law involved, though these are not in the legislation, it is the general precedent held in the plethora of cases by the Supreme Court. This will save the Court’s time, as, otherwise, for every case there will be a special leave petition.

Additionally, by a plain reading of clause (1) of this Art, it is clear that the petitioner can approach this Court against the judgement or order of any tribunal. However, in clause (2) it is clearly stated that this Article cannot entertain an appeal in law relating to the Armed Forces.

Thus, by reading all the above interpretations of this Article it is clear that this Article has a very wide scope as is not restricted by any other Article under this chapter, irrespective of whether a certificate of appeal is given by a court in a particular case or not. The petitioner can always come to this Court against anyone if the matter involves a question of general public importance or involves a substantial question of law. Many of the Supreme Court’s most important decisions have come under this Article. Due to all these exclusive powers, this Article is “The Armour of Justice”. This is why we often see the misuse of this Article too.  

A recent constitutional bench of the Supreme Court (Mathai v. George, Final Order & Judgement dated 11 Jan 2016) declined to prescribe any guidelines to govern the exercise of this extraordinary power, given the ‘widest possible terms’ wording of Article 136. The flaws of this overreaching provision, aggravated by an indiscriminate invocation of this extraordinary jurisdiction by litigants and lawyers, has triggered an alarming concern regarding judicial backlog and the transforming of the Supreme Court into a regular appellate authority.

While streamlining the filing and admission of SLPs will have a tremendous impact on the overall functionality of the Supreme Court, there are objections to this measure. The manner in which the Supreme Court has frequented the invocation of its jurisdiction under Article 136, has inspired people to approach the apex court more readily.

In times of dire need, where there is a monumental backlog of cases piling and no doubt this Article is adding more to this pile at a huge rate, it is in the interest of justice that certain measures be taken to reduce the burden cases without either trampling upon the jurisdiction and power of the Courts and the rights of a person to natural justice.

[1] Chapter IV – The Union Judiciary.

[2] Article – 131.

[3] Article – 133.

[4] Article – 134.

[5] Article – 143.

[6] N. Natarajan v. B.K. Subba Rao, (2003) 2 SCC 76.

[7] Subedar v. State of U.P., AIR 1971 SC 125.

Vaibhav K. Shah from School of law, Sharda University

Editor: Sanskriti Sood

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