Part V: The Union

The Union Judiciary

Article 136: Special leave to appeal by the Supreme Court

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(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, 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.

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

Explanations

Article 136 of the Constitution of India grants the Supreme Court wide discretionary powers to hear appeals, referred to as "Special Leave Petitions" (SLPs). This extraordinary power allows the Supreme Court to intervene in any case decided by lower courts or tribunals across the country, except for matters related to the Armed Forces. Article 136 is an essential component of India’s judicial framework, reflecting the Supreme Court’s role as the ultimate guardian of justice and protector of fundamental rights.

Clause-by-Clause Explanation

Clause 1: Discretionary Power to Grant Special Leave

The Supreme Court, under Article 136(1), may, at its discretion, grant special leave to appeal from any judgment, decree, determination, sentence, or order passed by any court or tribunal within the Indian territory. This provision ensures that the highest court of the country can rectify any legal errors or gross injustices that may have been left unresolved by lower courts. The discretionary nature of this power is crucial, as it gives the Supreme Court the flexibility to choose cases that have national significance or involve critical questions of law.

Real-life Example:

A prominent instance is the Nirbhaya Case, where the Supreme Court, under Article 136, exercised its special leave jurisdiction to uphold the death sentence of the convicts, overturning various appeals and dismissals by lower courts. The case reflected the Court’s intervention in matters of great public importance and national conscience.

In the Maneka Gandhi v. Union of India case, the Supreme Court admitted an SLP under Article 136 to examine the procedural fairness of the government’s decision to impound her passport. This case expanded the interpretation of Article 21, reinforcing the importance of personal liberty and procedural due process.

Clause 2: Exclusion of Armed Forces

Article 136(2) explicitly states that the Supreme Court cannot grant special leave in matters related to courts or tribunals constituted under laws governing the Armed Forces. This clause ensures that the military judicial system functions independently without interference from civilian courts, safeguarding the specialized and structured judicial framework of the Armed Forces.

Real-life Example:

The Armed Forces Tribunal, constituted under the Armed Forces Tribunal Act, 2007, handles issues specific to military personnel, such as court-martials. Appeals in such cases are barred from being admitted under the discretionary powers of the Supreme Court.

A case involving a soldier convicted by a military court for insubordination was not allowed to be appealed through the Supreme Court’s special leave petition, demonstrating the distinct legal framework that governs the military, separate from the civilian judicial system.

Historical Significance

Article 136 was introduced to provide an additional safeguard to ensure justice prevails in cases where a grave error or miscarriage of justice might occur. Its roots lie in the idea of ensuring that the Supreme Court can intervene in cases of legal uncertainty or perceived injustice. This article has evolved over time, contributing to the judicial activism and jurisprudence of the Court.

Amendments and Judicial Interpretation

Although Article 136 has not been formally amended, its interpretation has evolved through numerous judicial precedents. The Supreme Court has consistently interpreted this article as a measure of last resort, used sparingly to maintain the sanctity of lower court decisions while intervening only in cases of legal or procedural errors that could lead to a miscarriage of justice.

Legislative History

Article 136 of the Indian Constitution, primarily introduced and deliberated as article 112 of the Draft Constitution on June 6 and October 16, 1949, was subsequently incorporated into the Indian Constitution.

Debates and Amendments

On June 6, 1949, the Constituent Assembly debated Article 112, discussing its provisions and proposed amendments. Shri Ram Sahai proposed deleting the clause "except the States for the time being specified in Part III of the First Schedule, in cases where the provisions of article 110 or article 111 of this Constitution do not apply," advocating for a uniform Supreme Court jurisdiction over all provinces and states/unions. He argued this distinction was unnecessary, referencing the Instruments of Accession and the overall constitutional structure.

Kaka Bhagwant Roy and Shri Krishna Chandra Sharma supported Sahai's amendment, emphasizing equality between states and provinces in judicial appeals and the strengthened independence of the judiciary under Article 112 compared to the Government of India Act, 1935. Prof. Shibban Lal Saksena and Pandit Thakur Das Bhargava highlighted the Supreme Court's comprehensive power under Article 112 to ensure justice beyond the strict letter of the law, including civil, criminal, and revenue matters. Shri Alladi Krishnaswami Ayyar and Shri H. V. Pataskar endorsed the amendment, with Pataskar noting historical injustices in revenue cases. The proposed amendment was adopted, granting the Supreme Court broad jurisdiction to grant special leave to appeal in any cause or matter.

On October 16, 1949, Shri T. T. Krishnamachari proposed a new provision for Article 112, granting the Supreme Court discretionary power to appeal from any judgment or order, with a specific exclusion for Armed Forces-related decisions. This was to align with UK practices and address Defence Department concerns about military discipline.

Prof. Shibban Lal Saksena opposed this exclusion, accusing Dr. Ambedkar of reneging on a promise that death penalty cases from courts-martial could be appealed to the Supreme Court. Shri R. K. Sidhwa and Pandit Thakur Das Bhargava raised concerns about civilian cases involving military personnel and the broadness of the exclusion. Dr. Ambedkar clarified that while the Supreme Court theoretically had jurisdiction over court-martial decisions, civil courts traditionally did not exercise it. He assured that the Supreme Court or High Courts could still intervene if a court-martial exceeded its jurisdiction.

Prof. Saksena's amendment to delete clause (2) was rejected, and the amended Article 112 was adopted, incorporating the discussed provisions and maintaining the balance between military discipline and judicial oversight.

References

• Nirbhaya Case: Supreme Court’s use of special leave to uphold death sentence.
• Maneka Gandhi v. Union of India: Expansion of personal liberty under Article 21.
• Armed Forces Tribunal Act, 2007.