“Be you ever so high, the law is above you”
A reasoned order is a desirable condition of judicial disposal.2 The Supreme Court in exercise of its power under Article 136 of the Constitution dismisses the special leave petition arising out of the judgment/order of the High Court’s passed under the Income Tax Act, 1961 filed at the instance of Department/Revenue and/or the assessee by a non-speaking order in majority of the cases at the threshold. Is this course adopted by the Supreme Court not contrary to one of the facets of principles of natural justice, namely, recording of reasons in an order entailing adverse civil consequences? The present article is, therefore, a manifestation for two main reasons. The first being to try and understand the nature and power of the Supreme Court under Article 136 of the Constitution of India to pass orders by a non-speaking order and its effect on the justice delivery system at the hands of the High Courts in the absence of a speaking order by the Supreme Court. The second reason being to demonstrate that in view of the recognition of the principles of natural justice one of them being giving of reasons in support of an order by a administrative, quasi-judicial and judicial body, which by an interpretative process has come to be considered to be a part and parcel of Article 14 of the Constitution of India, would such a requirement be necessary by subjecting the power of the Supreme Court at the threshold while dismissing the special leave petition under Article 136 of the Constitution of the aggrieved party, whether it be the Department/Revenue or the assessee.
SCOPE AND POWER OF THE SUPREME COURT UNDER ARTICLE 136
Article 136 of the Constitution empowers the Supreme Court to grant special leave in its discretion against any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal except by any court or tribunal constituted by or under any law relating to the armed forces. It reads as under:
- 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 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.
Article 136 does not define the nature of proceedings from which the Supreme Court may hear appeals, and therefore, it could hear appeals in any kind of proceedings whether civil, criminal, or relating to income tax, revenue or labour disputes, etc.3 Article 136 is worded in the widest terms possible and is discretionary in nature. It does not confer a right to appeal on a party to litigation; it only confers a discretionary power of widest amplitude on the Supreme Court to be exercised for satisfying the demands of justice. On one hand, it is an exceptional power to be exercised sparingly, with caution and care and to remedy extraordinary situations or situations occasioning gross failure of justice; on the other hand, it is an overriding power where under the Court may generously step in to impart justice and remedy injustice.4 Noticeably, the provisions of Article 136 of the Constitution opens with a non-obstante clause viz. “Notwithstanding anything in this chapter”. The power conferred on the Supreme Court by Article 136 is plenary in the sense that there are no words in Article 136 qualifying that power. It is a sweeping power, exercisable outside the purview of ordinary law to meet the purpose of satisfying the demands of justice.5 The scope of this special appellate jurisdiction of the Supreme Court is very flexible. There are no words in Article 136 itself qualifying the power of the Supreme Court. The matter lies within the complete discretion of the Supreme Court and the only limit upon it is the “wisdom and good sense of the Judges” of the Supreme Court.6 As rightly pointed out by Krishna Iyer, J.7, when extraordinary power under Article 136 chases injustice, sky is the limit. Thus, the Supreme Court while exercising power under Article 136, not only acts as a “court of law” but also as a “court of equity”8; and such a power is exercised for doing full and complete justice.
The jurisdiction conferred by Article 136 is divisible into two stages: first stage is up to the disposal of prayer for special leave to file an appeal and the second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal. The legal position as summarised by the Supreme Court in Kunhayammed v. State of Kerala9 regarding the scope of two stages reads as under:
(a) While hearing the petition for special leave to appeal, the Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Court is not exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal. The petitioner is still outside the gate of entry though aspiring to enter the appellate arena of the Supreme Court. Whether he enters or not would depend on the fate of his petition for special leave.
(b) If the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction of the court was not made out.
(c) If leave to appeal is granted, the appellate jurisdiction of the court stands invoked; the gate for entry in appellate arena is opened. The petitioner is in and the respondent may also be called upon to face him, though in an appropriate case, in spite of having granted leave to appeal, the Court may dismiss the appeal without noticing the respondent.
(d) In spite of a petition of special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge.10
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† Senior Advocate, High Court of Punjab & Haryana, Chandigarh
*The article has been published with kind permission of Eastern Book Company. Cite as (2021) 2 SCC J-25
1Quoted by Lord Denning in Gouriet v. Union of Post Workers,  Q.B. 729, 762 (CA); P.N. Duda v. P. Shiv Shanker, (1988) 3 SCC 167.
2M.P. Industries Ltd. v. Union of India, AIR 1966 SC 671.
3Pritam Singh v. State, 1950 SCR 453 : AIR 1950 SC 169.
4 See: Narpat Singh v. Jaipur Development Authority, (2002) 4 SCC 666; Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520.
5 See: Narendra Nath Khaware v. Parasnath Khaware, (2003) 5 SCC 488.
6Penu Balakrishna Iyer v. Ariya M. Ramaswami Iyer, AIR 1965 SC 195.
7P.S.R. Sadhanantham v. Arunachalam, (1980) 3 SCC 141.
8 See: Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323; Rashpal Malhotra v. Satya Rajput, (1987) 4 SCC 391; Bharat Bank Ltd. v. Employees, 1950 SCC 459 : AIR 1950 SC 188; Chandra Bansi Singh v. State of Bihar, (1984) 4 SCC 316.
9(2000) 6 SCC 359; affirmed by the co-equal Bench of the Supreme Court in Khoday Distilleries Ltd. v. Mahadeshwara Sahakara Sakkare Karkhane Ltd., (2019) 4 SCC 376.
10 Id, 372, para 14.
12Mathai v. George, (2016) 7 SCC 700.
13Pritam Singh v. State, 1950 SCR 453 : AIR 1950 SC 169; Penu Balakrishna Iyer v. Ariya M. Ramaswami Iyer, AIR 1965 SC 195; Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584.
14Mathai v. George, (2016) 7 SCC 700, 702, paras 6-7.
15Kunhayammed v. State of Kerala, (2000) 6 SCC 359.
16Kunhayammed v. State of Kerala, (2000) 6 SCC 359, 383-84, para 44.
18(1987) 100 HLR 731.
19(1995) 19 EHRR 553.
202001 EWCA Civ 405.
21Kranti Associates (P) Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496, 510-12, para 47.
22Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664; Woolcomber of India Ltd. v. Workers’ Union, (1974) 3 SCC 318; Sahara India (Firm) (1) v. CIT, (2008) 14 SCC 151; C.B. Gautam v. Union of India, (1993) 1 SCC 78; Union of India v. Mohan Lal Capoor, (1973) 2 SCC 836.
23 In R. v. Civil Service Appeal Board, ex p Cunningham, (1991) 4 All ER 310 (CA), Lord Donaldson, Master of Rolls, opined very strongly in favour of disclosing of reasons in a case where the Court is acting in its discretion. See also: North Range Shipping Ltd. v. Seatrans Shipping Corpn.,  1 WLR 2397 (CA); Cullen v. Chief Constable of the Royal Ulster Constabulary,  1 WLR 1763 (HL).
24(1985) 3 SCC 398; See also: Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664; Dev Dutt v. Union of India, (2008) 8 SCC 725.
25Union of India v. Tulsiram Patel, (1985) 3 SCC 398, 476, para 95.
26 See: Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405; Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625.
27 See: H.M. Seervai, Constitutional Law of India (3rd Edn., Vol. 1) pp. 225 to 236.
28State of Orissa v. Binapani Dei, AIR 1967 SC 1269; A.K. Kraipak v. Union of India, (1969) 2 SCC 262; Rajesh Kumar v. CIT, (2007) 2 SCC 181.
29Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584.
31 Id, 260 para 16.
322012 SCC OnLine Del 6386 : (2013) 354 ITR 536.
33CIT v. Orient Craft Ltd., 2014 SCC OnLine SC 1807.
342017 SCC OnLine Guj 2495 : (2018) 400 ITR 260.
35Krishna Developers & Co. v. CIT, 2018 SCC OnLine SC 3647.
36 Special leave petition preferred by the Union of India against the judgment of the High Court of Punjab & Haryana reported as Adfert Technologies (P) Ltd. v. Union of India, 2019 SCC OnLine P&H 5701, was dismissed by the Hon’ble Supreme Court of India by a non-speaking order, reported as Union of India v. Adfert Technologies (P) Ltd., 2020 SCC OnLine SC 1064, however, on the same very issue special leave petition stands granted by the Supreme Court in Union of India v. Brand Equity Treaties Ltd., 2020 SCC OnLine SC 1065 against the judgment rendered by the High Court of Delhi in Brand Equity Treaties Ltd. v. Union of India, 2020 SCC OnLine Del 1698.
37 See: CIT v. A.A. Estate (P) Ltd., (2019) 14 SCC 99; Ryatar Sahakari Sakkare Karkhane Niyamit v. CIT, (2019) 5 SCC 706; M. Janardhana Rao v. CIT, (2005) 2 SCC 324.
39Breen v. Amalgamated Engg. Union,  2 Q.B. 175 :  2 WLR 742 (CA).
40Ram & Shyam Company v. State of Haryana, (1985) 3 SCC 267.
41 Id, 271, para 2.
42Lord Chief Justice Hewart in R. v. Sussex Justices,  1 K.B. 256