{"id":237184,"date":"2020-10-11T10:00:07","date_gmt":"2020-10-11T04:30:07","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=237184"},"modified":"2020-10-30T15:15:35","modified_gmt":"2020-10-30T09:45:35","slug":"special-leave-under-article-136-of-the-constitution-under-article-136-of-the-constitution-and-keeping-the-question-of-law-open","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2020\/10\/11\/special-leave-under-article-136-of-the-constitution-under-article-136-of-the-constitution-and-keeping-the-question-of-law-open\/","title":{"rendered":"Special Leave under Article 136 of the Constitution and keeping the question of law open\u00a0"},"content":{"rendered":"

I. INTRODUCTION<\/strong><\/span><\/p>\n

In the days of yore when COVID-19 wasn\u2019t a pandemic and lawyers were still employed, the Supreme Court of India, the country\u2019s Apex Court, would be engulfed in a sea of black every Monday and Friday. The sea of black would be made up of lawyers. They came from various places and were of different shapes and sizes. Some of them were called juniors and the other seniors. The juniors would be divided into two sub-branches, one being the AOR (Advocate on Record) and the other being the counsel. The seniors were also of various types. Seniors were called so either because of their seniority at the Bar or either because they would be anointed as \u201cSenior Counsel\u201d by the Lords themselves! The lawyers all wore black gowns of different sizes, shapes and quality based again upon their own sizes, shapes and quality. They came in hoards, unstoppable and unbeatable; and when they descended on these two days into the lair of the Supreme Court, they created quite a stir, with chaos and cacophony as their weapons of mass destruction. A constitutional philosopher would find this scene quite disturbing. He would blame the Lords for reserving Monday and Friday as \u201cmiscellaneous days\u201d. After all, utter madness mostly never existed from Tuesday to Thursday. The Lords sought to justify the retention of \u201cmiscellaneous days\u201d because they had the power and discretion to \u201cgrant special leave\u201d. It\u2019s in the holy book that they had sworn to uphold. \u201cDon\u2019t blame us,\u201d they would say. \u201cIt\u2019s in the Constitution. This is what the framers intended.\u201d\"\"<\/p>\n

While the framers did not intend to create the storms on \u201cmiscellaneous days\u201d, they certainly did intend to draft into the Constitution an article that gave discretionary power to the Supreme Court to \u201cgrant special leave to appeal\u201d from any \u201cjudgment, decree, determination, sentence or order\u201d passed or made by any \u201ccourt or tribunal\u201d in India.[1]<\/a> This article which was originally Draft Article 112 of the Constitution of India, was later adopted as the present-day Article 136 of the Constitution of India, 1950 (hereinafter referred to as \u201cthe Constitution\u201d).[2]<\/a> Except in certain cases[3]<\/a>, litigants wanting to invoke the jurisdiction of the Supreme Court had to generally knock on its doors with a petition under Article 136 requesting the highest court of appeal, through their lawyers or in person, to grant special leave. The matters were placed before the Lords on miscellaneous days, generally Mondays and Fridays. Lawyers in hundreds would throng the court with petition and armour to make their client\u2019s case before the Lords. They would plead, beg, argue and pray. But at the end, the Lords would have the last word. While physical presence of the lawyers in the Supreme Court has momentarily been eclipsed by the virtual world, thanks to \u201cthat virus\u201d, the article can thankfully still be invoked albeit in a different setting. The Lords may, while hearing a petition under Article 136 \u201cissue notice\u201d to the respondents, which is the first step to enter the sanctum sanctorum of the Supreme Court or they may simply refuse to grant leave and send the valiant lawyer away only to return sometime soon. However, there are times, when the Lords may pass a brief order which could generally read as follows: \u201cSpecial leave petition dismissed<\/strong>. Question of law kept open<\/strong>.\u201d<\/p>\n

The theme of this article is to examine Article 136 of the Constitution and the concept of \u201ckeeping the question of law open\u201d. The article has started with this Introduction in Part I, Part II of the article will briefly discuss the appellate jurisdiction of the Supreme Court under the Constitution, Part III will specifically analyse the concept of \u201cspecial leave\u201d under Article 136 of the Constitution, Part IV will critically deal with \u201ckeeping the question of law open\u201d and lastly, the article will conclude in Part V.<\/p>\n

II. THE APPELLATE JURISDICTION OF THE SUPREME COURT UNDER THE CONSTITUTION<\/strong><\/span><\/p>\n

1. Chapter IV of Part V of the Constitution of India, 1950 which is titled \u201cThe Union Judiciary\u201d contains twenty-six Articles (Articles 124 to 147) that deal with the functioning, scope and nature of jurisdiction and powers of the Supreme Court of India. The jurisdiction of the Supreme Court is set out in Articles 131 to 136 of the Constitution. Article 138 confers on Parliament the power to enlarge the jurisdiction of the Supreme Court by law.[4]<\/a> Article 139[5]<\/a> confers upon the Supreme Court the powers to issue writs and Article 143[6]<\/a> deals with the power of the President to refer a question to the Supreme Court for its consideration by a Presidential reference. Article 131 deals with the original jurisdiction of the Supreme Court to hear inter-State disputes or disputes involving any question of law or fact between the Government of India and States.[7]<\/a> Articles 132 and 133 deal with the appellate jurisdiction of the Supreme Court, to hear cases decided by the High Court, in constitutional and civil matters which can be invoked if a High Court grants a certificate of fitness under Article 134-A[8]<\/a> of the Constitution. Article 132(1) empowers the Supreme Court to hear appeals from \u201cany judgment, decree or final order of a High Court\u201d in a \u201ccivil, criminal or other proceeding\u201d that involves \u201ca substantial question of law as to the interpretation\u201d of the Constitution if the High Court certifies the same.[9]<\/a> The expression, \u201cfinal order\u201d includes an order deciding an issue which would be sufficient for final disposal of the case.[10]<\/a> As per Article 132(3), if such a certificate is given, then any party to the appeal may appeal on the ground that the substantial question of law has been wrongly decided.<\/p>\n

2. On the other hand Article 133(1) also confers upon the Supreme Court the power to hear appeals from \u201cany judgment, decree or final order\u201d only in a civil proceeding (subject to the High Court granting a certificate), if the case involves (a<\/em>) \u201ca substantial question of law of general importance\u201d and (b<\/em>) \u201c that in the opinion of the High Court the said question needs to be decided by the Supreme Court.\u201d[11]<\/a> Article 132 (2) clarifies that any party appealing may \u201curge as one of the grounds\u201d in the appeal that \u201ca substantial question of law as to the interpretation of this Constitution has been wrongly decided.\u201d[12]<\/a> The three Judge-Bench of Supreme Court had an occasion to interpret Article 133(1) in State Bank of India v. Sundara Money<\/em><\/strong>,<\/strong>[13]<\/a> (hereinafter referred to as Sundara Money<\/em><\/strong>) in which the Court stated,<\/p>\n

\n

\u201cA substantial question of law of general importance is a sine qua non<\/em> to certify fitness for hearing by the Supreme Court. Nay, more; the question, however important and substantial, must be of such pervasive import and deep significance that in the High Court\u2019s judgment it imperatively needs<\/em> to be settled at the national level by the highest Bench.\u201d[14]<\/a><\/p>\n<\/blockquote>\n

While interpreting the term \u201cneeds to be decided by the Supreme Court\u201d, the Court in Sundara Money<\/em><\/strong> thereafter approvingly quoted the decision of the Delhi High Court in Union of India v. Hafiz Mohd. Said<\/em><\/strong>[15]<\/a>, the relevant portion of which reads as under,<\/p>\n

\n

\u201c\u2026 Further the word \u2018needs\u2019 suggests that there has to be a necessity for a decision by the Supreme Court on the question, and such a necessity can be said to exist when, for instance, two views are possible regarding the question and High Court takes one of the said views<\/em><\/strong>.<\/em> Such a necessity can also be said to exist when a different view has been expressed by another High Court.\u201d<\/p>\n<\/blockquote>\n

(emphasis supplied)<\/p>\n

3. In Sir Chunilal V. Mehta and sons Ltd. v. Century Spinning and Manufacturing Co.[16]<\/a><\/em><\/strong>, the Constitutional Bench of the Supreme Court held,<\/p>\n

\n

\u201cThe proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and, substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally, settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised in palpably absurd the question would not be a substantial question of law.\u201d<\/p>\n<\/blockquote>\n

4. So far as criminal matters, the Constitution made a departure from the Government of India Act, 1935 which did not have any provision \u201cfor the exercise of any criminal appellate jurisdiction by the Federal Court\u201d and it \u201cwas assumed that the High Courts would continue to be the final arbiters in criminal cases\u201d unless the Privy Council was willing to grant special leave to appeal.[17]<\/a> This step-motherly treatment to criminal cases was also pointed out by the certain members of the Constituent Assembly.[18]<\/a> Pandit Thakur Das Bhargava had stated, \u201cso far as the criminal jurisdiction is concerned, my humble complaint is that it so appears that this Assembly is full of civil lawyers and they do not care about the criminal aspect of the jurisdiction of the Supreme Court.\u201d[19]<\/a> No provision similar to Article 134 was drafted in the First Draft Constitution by the Constitutional Adviser nor in the Draft Constitution of the Drafting Committee.[20]<\/a> It was only during the debates of the Constituent Assembly on 13th<\/sup> and 14th<\/sup> June 1949 that Draft Article 111-A dealing with the appellate jurisdiction of Supreme Court with regard to criminal matters was introduced. The said Draft article was eventually adopted as the present day Article 134 of the Constitution.[21]<\/a>\u00a0 As per Article 134, an appeal shall lie to the Supreme Court from the judgment, final order or sentence in criminal proceedings of a High Court[22]<\/a> if the High Court has (a<\/em>) reversed an order of acquittal on appeal and sentences the accused to death or (b<\/em>) has withdrawn for trial before itself any case from a subordinate court and in a trial convicted the accused and sentenced him to death or (c<\/em>) grants a certificate under Article 134-A.<\/p>\n

5. Article 135 also confers on the Supreme Court jurisdiction and powers in relation to matters (where Articles 133 or 134 do not apply) in which the erstwhile Federal Court exercised powers immediately prior to the Constitution under \u201cany existing law\u201d, subject to a law passed by Parliament.[23]<\/a> \u201cExisting law\u201d is defined in Article 366(10) of the Constitution to mean \u201cany law, Ordinance, order, bye-law, rule or regulation passed or made\u201d by any legislature, authority or person having power to make such laws before the commencement of the Constitution.[24]<\/a><\/p>\n

6. Lastly, Article 136, deals with the discretionary power of the Supreme Court to grant \u201cspecial leave to appeal\u201d from \u201cany judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.\u201d[25]<\/a> Though the said article does not apply to any decision or order made by any court or tribunal under any law relating to the Armed Forces [see Article 136(2)], the said article confers upon the Supreme Court the widest possible jurisdiction to entertain any order passed in any matter by any Court or Tribunal, at any stage of its proceeding. Being the focal point of this piece, the next part of this article will examine Article 136 and the concept of special leave.<\/p>\n

III. SPECIAL LEAVE UNDER ARTICLE 136 <\/strong><\/span><\/p>\n

1. The Origin of Special Leave<\/em><\/strong><\/p>\n

\u00a0<\/em><\/strong>The expression \u201cspecial leave to appeal\u201d in Article 136(1) of the Constitution was adopted by the framers from the Government of India Act, 1935 (hereinafter referred to as \u201cthe 1935 Act or the said Act\u201d as the case may be). The specific expression \u201cspecial leave\u201d is found in five places in the 1935 Act. It first appears in the savings clause, namely, Section 110 in Chapter II of the said Act. Section 110(b)(iii) prohibited the Federal Legislature or Provincial Legislatures \u201cto make any law derogating from any prerogative right of His Majesty to grant special leave to appeal <\/em><\/strong>from any court\u201d except if the Act expressly provided.[26]<\/a> Section 205 which deals with the appellate jurisdiction of the Federal Court also uses the expression twice in sub-section (2). As per Section 205(2), where a High Court certifies under Section 205(1) that a case involves \u201ca substantial question of law\u201d as to the interpretation of the 1935 Act or Order in Council, any party may appeal to the Federal Court on the ground that such question of law has been wrongly decided and \u201con any ground on which that party could have appealed without special leave<\/em><\/strong> to His Majesty-in-Council if no such certificate had been given.\u201d[27]<\/a> The said sub-section goes on to state that \u201cno direct appeal shall lie to His Majesty-in-Council\u201d meaning thereby the Judicial Committee of the Privy Council,[28]<\/a> \u201ceither with or without special leave<\/em><\/strong>.<\/em>\u201d[29]<\/a> Further, Section 206 of the said Act that deals with the power of the Federal Legislature to enlarge the appellate jurisdiction, states in Section 206(1)(b) that the Federal Legislature may provide by an enactment that an appeal may lie in certain civil cases to the Federal Court from a judgment, decree or final order of a High Court, without any certification but no appeal shall lie under any Act unless the Federal Court gives \u201cspecial leave\u201d to appeal.[30]<\/a> Sub-section (2) of Section 206 goes on to state that if the Federal Legislature makes \u201csuch provision\u201d stated in sub-section (1), then a consequential provision may also be made by the Act for abolishing, in whole or part, direct appeals in civil cases from the High Courts to His Majesty- in- Council, either with or without special leave<\/em><\/strong>.[31]<\/a> In addition to this, Section 208 specifically deals with appeals to His Majesty-in-Council. Sub-section (a) is from a decision of the Federal Court from any judgment given in exercise of its original jurisdiction in certain disputes, without leave and sub-section (b) deals with any other case not included in sub-section (a), \u201cby leave of the Federal Court or His Majesty-in-Council,\u201d[32]<\/a> meaning thereby, the Judicial Committee of the Privy Council. The leave granted by the Judicial Committee would be \u201cspecial leave\u201d.[33]<\/a><\/p>\n

2. The Constituent Assembly Debates<\/em><\/strong><\/p>\n

a. <\/strong>Prior to the enactment of the Constitution, \u201cthe Privy Council had the power to grant special leave from any civil or criminal matter decided by any court in India.\u201d[34]<\/a> Though in criminal cases special leave to appeal was granted very rarely by the Judicial Committee.[35]<\/a> As seen above, the 1935 Act also provided for provisions to grant special leave to appeal to the Privy Council. The framers of the Constitution were quite obviously aware of this position in law. The First Draft Constitution by the Constitutional Advisor included a section similar to Section 206 of the 1935 Act. Section 94, which was included in the First Draft, dealt with the appellate jurisdiction of the Supreme Court to hear appeals from High Court without a certificate. Sub-section (a) set out the types of matters which could be appealed based on valuation or based on whether the appeal involved a substantial question of law and sub-section (b) stated that an appeal could be heard without certificate if the Supreme Court gives special leave to appeal.[36]<\/a><\/p>\n

b.<\/strong> Subsequently, the Drafting Committee of the Constitution substantially deviated from the aforesaid draft and introduced Draft Article 112. The marginal note of the draft Article read as follows: \u201cSpecial leave to appeal by the Supreme Court in certain other cases.\u201d As per this draft article, \u201cin cases where the provisions of Article 110 or Article 111\u201d do not apply, the Supreme Court could \u201cin its discretion\u201d grant \u201cspecial leave to appeal\u201d from any judgment, decree or final order \u201cin any cause or matter, passed or made by any court or tribunal\u201d in India except States specified in Part II of the First Schedule.[37]<\/a> Such a provision was not found in the 1935 Act.[38]<\/a> The said draft article was extensively debated on 6th<\/sup> June 1949.[39]<\/a> Professor Shibban Lal Saksena desired that the article should have within it a power to decide appeals on \u201cprinciples of jurisprudence and considerations of natural justice.\u201d[40]<\/a> He stated that \u201cthe Supreme Court should be enabled to give judgments which may not be within the letter of the law.\u201d[41]<\/a> This wish has been fulfilled to a large extent with the Supreme Court interfering in cases where the principles of natural justice have been violated. Shri Krishna Chandra Sharma supported this provision and according to him, \u201cthis provision has given a status to the judiciary, equivalent and in no way subordinate to the executive and legislature.\u201d[42]<\/a> Pandit Thakur Das Bhargava was sceptical of the provision and thought that the article was \u201cexceptionally wide\u201d and was \u201cremnant of the most accursed political right of the divine right of kings\u201d which would make the Supreme Court \u201cabove law\u201d.[43]<\/a> This assertion was rebutted by Shri H.V. Pataskar who supported the article and said that there should be \u201csome independent body which must be the guardian of administration of justice\u201d in all matters.[44]<\/a> According to him, the Supreme Court was not likely to \u201cgrant special leave in any matter whosoever\u201d unless there was a serious breach of the administration of justice which went to the root of the matter.[45]<\/a> The article was also supported by Shri Alladi Krishnaswami Ayyar who stated that unlike the Judicial Committee of the Privy Council there should be no fetter on the exercise of jurisdiction of the Supreme Court under Article 112.[46]<\/a> The draft article was amended by the Assembly by deleting the words \u201cexcept 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\u201d which gave rise to the present day Article 136.[47]<\/a><\/p>\n

III. Scope of Article 136 and limitations on exercising discretionary power <\/em><\/strong><\/span><\/p>\n

\u00a0a. <\/em><\/strong>Article 136 has been couched in the widest possible terms. It gives discretion to the Supreme Court to grant \u201cspecial leave to appeal\u201d from any judgment, decree, determination, sentence or order \u201cin any cause or matter\u201d \u201cpassed or made\u201d by \u201cany court or tribunal\u201d in the territory of India. The non obstante clause emphasises that the power overrides the limitations on the court\u2019s power to entertain appeals.\u201d[48]<\/a> The article applies to both final and interlocutory orders and also applies to Tribunals invested with \u201ca part of the judicial power of the State\u201d meaning thereby quasi-judicial authorities.[49]<\/a> However, it must be remembered that Article 136 does not confer a \u201cright to appeal\u201d but only a \u201cright to apply\u201d for special leave which, if granted, confers a right to appeal so long as the leave is not revoked.[50]<\/a> Just like the Privy Council, the Supreme Court has put in place self-imposed restrictions when it comes to criminal appeals and will not entertain special leave petitions in criminal cases particularly when there are concurrent findings of fact, save in exceptional cases, such as cases of perversity or impropriety, violation of principles of natural justice, error of law or errors of record or misreading of evidence.[51]<\/a> The Supreme Court invokes the power under Article 136 in \u201cexceptional circumstances as and when a question of law of general public importance arises.\u201d[52]<\/a><\/p>\n

b.<\/strong> The Supreme Court \u201chas rightly declined to fetter its discretionary power by laying down \u201cprinciples\u201d or \u201crules\u201d.\u201d[53]<\/a> The Constitutional Bench in Dhakeshwari Cotton Mills Ltd. v. Commissioner of Income Tax, West Bengal<\/em><\/strong>[54]<\/a> has observed that it is \u201cnot possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested\u201d in the Supreme Court under Article 136 and the limitations \u201care implicit in the nature and character of the power itself\u201d.[55]<\/a> Being an \u201cexceptional and overriding power, naturally it has to be exercised sparingly and with caution and only in special and extraordinary situations\u201d.[56]<\/a> The Court went on to state as under:<\/p>\n

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\u201c \u2026. It is, however, plain that when the court reaches the conclusion that a person has been dealt with arbitrarily or that a court or tribunal within the territory of India has or given a fair deal to a litigant, then no technical hurdles of any kind like the finality of finding of facts or otherwise can stand in the way of exercise of this power because the whole intent and purpose of this article is that it is the duty of this court to see that injustice is not perpetuated or perpetrated by decisions of courts and tribunals because certain laws have made the decisions of these courts or tribunals final and conclusive\u2026\u201d<\/span>[57]<\/a><\/p>\n<\/blockquote>\n

c.<\/strong> The aforesaid position has consistently been upheld. As recently as 2016, the Constitution Bench of the Supreme Court in Mathai George <\/em><\/strong>[58]<\/a> refused to restrict the scope of Article 136 and stated that \u201cno effort should be made to restrict the powers\u201d of the Supreme Court under Article 136. The Court said that \u201cit would be better to use the said power with circumspection, rather than to limit the power forever\u201d.[59]<\/a><\/p>\n

IV. QUESTION OF LAW KEPT OPEN UNDER ARTICLE 136<\/strong><\/span><\/p>\n

1. Once the matter reaches the Supreme Court in a petition\/application under Article 136, the Court has to exercise its discretionary jurisdiction (and not appellate jurisdiction) to examine whether or not leave should be granted in a given case.[60]<\/a> If leave to appeal is granted, \u201cthe appellate jurisdiction of the Court stands invoked, the gate for entry in the appellate arena is opened,\u201d and if so required, the respondent may be called to oppose the petitioner.[61]<\/a> The Court may in certain cases dismiss the appeal after granting leave without issuing notice to the respondent.[62]<\/a> However, if the leave to appeal is dismissed, \u201cthe case for invoking the appellate jurisdiction of the court\u201d is not made out.[63]<\/a> The order can be a speaking or a non-speaking one. In most cases, when the Supreme Court does not wish to exercise its discretion, the Court simply passes a one line order dismissing the special leave petition in limine <\/em>without assigning any reasons. However, on some occasions, while dismissing the special leave petition, the Court may \u201cleave the question of law open\u201d to be decided in an appropriate case.<\/p>\n

2. The question that might be asked is whether it would be proper for the Supreme Court to \u201cleave the question of law open\u201d, whilst exercising its discretionary jurisdiction under Article 136? As has been seen in the previous part of this column,[64]<\/a> the Supreme Court can only exercise its appellate jurisdiction in constitutional and civil matters under Articles 132 and 133 against \u201cany judgment, decree or final order\u201d when the case involves a \u201csubstantial question of law\u201d as to the interpretation of the Constitution or of general importance that in the High Court\u2019s opinion \u201cneeds to be decided\u201d by the Supreme Court. The jurisdiction under Articles 132 and 133 can only be invoked if a High Court certifies the same under Article 134-A.[65]<\/a> In civil proceedings, Article 133 has to be read with Section 109[66]<\/a> and Order XLV of the Code of Civil Procedure, 1908 (hereinafter referred to as \u201cCPC\u201d ) which deals with appeals to the Supreme Court. The non obstante clause in Section 109 and savings clause in Section 112 CPC clarifies that nothing contained in CPC will \u201caffect the powers of the Supreme Court under Article 136 or any other provision of the Constitution.\u201d[67]<\/a> This certificate also has to be granted in criminal matters, if the High Court feels that the case is a fit one for appeal to the Supreme Court, except in cases falling within Article 134(1)(a) or (b).[68]<\/a><\/p>\n

3. The discretionary and appellate powers under Article 136 has been explained by the three Judge-Bench of the Supreme Court itself in Khoday Distilleries Ltd. \u00a0\u00a0v. Shri Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal <\/em>(hereinafter referred to as \u201cKhoday Distilleries\u201d<\/em>) that has extensively relied upon its previous judgment in Kunhayammed v. State of Kerala<\/em> .[69]<\/a> The jurisdiction conferred by Article 136 is divided into two stages: (1) Stage one is \u201cup to the disposal of prayer for special leave to file an appeal\u201d and (2) Stage two which commences only if \u201cthe leave to appeal is granted and the special leave petition is converted into an appeal.\u201d Once the special leave petition is converted into an appeal, it is renumbered and treated as a civil or criminal appeal and heard as one under Article 136 by the Supreme Court as an \u201cappellate court\u201d.[70]<\/a> In such cases, the Supreme Court may, while exercising its \u201cappellate jurisdiction\u201d under Article 136, \u201creverse, modify or affirm the judgment, decree or order appealed against. Once the Supreme Court grants leave and acts upon such order of the subordinate forum or High Court, the order passed by the subordinate forum or the High Court merges in the decision of the Supreme Court and the Supreme Court\u2019s order remains operative and replaces the order passed by the subordinate forum or the High Court.[71]<\/a> However, if the special leave petition is dismissed and leave is not granted, there is \u201cno merger\u201d and the order in challenge attains finality.[72]<\/a> In such cases, it makes no difference whether a special leave petition is dismissed by either a speaking or a non-speaking order. The only difference between a speaking and non-speaking order passed under Article 136 is that the speaking or reasoned order rejecting the special leave petition may contain a \u201cstatement of law\u201d declared by the Supreme Court which will be binding under Article 141[73]<\/a> of the Constitution on all courts in India or the order may contain findings or directions that would bind the parties to the lis <\/em>and the subordinate forum or High Court.[74]<\/a> A non-speaking order binds neither the parties to the lis<\/em> nor does it lay down a declaration of law under Article 141 of the Constitution.<\/p>\n

4. Therefore, it is respectfully submitted that if the Supreme Court dismisses the special leave petition by either a speaking or non-speaking order, it would not be proper on the Court\u2019s part to leave the question of law open for future consideration. A dismissal results in finality exclusively qua the parties to the dispute and therefore, the Supreme Court cannot go beyond the scope of its jurisdiction under Article 136 and \u201cleave the question of law open.\u201d This would defeat the very purpose of Article 136 of the Constitution. Further, there is no provision in the Constitution that gives the Supreme Court power to \u201cleave a question of law open\u201d including in Article 136 (howsoever widely it may be interpreted). Except for Article 143,[75]<\/a> the Constitution only speaks of a \u201csubstantial question of law\u201d and nor merely a \u201cquestion of law\u201d. While it is true that the \u201cquestion of law\u201d could include within its fold a \u201csubstantial question of law\u201d, such a question would have to be certified as one by a High Court under the Constitution. This power vests only with the High Court and not the Supreme Court. While the Supreme Court can always examine a \u201cquestion of law\u201d under Article 136, after special leave is granted, it is respectfully submitted that it cannot reject special leave and at the same time leave the question of law open. The discretionary power under Article 136 ends when the special leave petition is rejected, and the said power cannot be exercised to \u201cleave the question of law open.\u201d<\/p>\n

5. Prior to the judgment of Khoday Distilleries<\/em>,[76]<\/a> the Gujarat High Court had an opportunity to deal with the expression \u201cquestion of law kept open\u201d in Collector <\/em>v. Liquidator, Petrofills Cooperative. Ltd.,<\/em><\/strong>[77]<\/a> where one of the issues before the High Court was whether the High Court could reconsider a decision if the Supreme Court kept the \u201cquestion of law open.\u201d The Gujarat High Court relying on a previous decision its own Court in CIT v. Itegra Engg. India Ltd.<\/em><\/strong>[78]<\/a> held that it was only the Supreme Court that could reconsider the question of law in the future.[79]<\/a> According to the Gujarat High Court, the expression \u201cquestion of law is kept open\u201d would \u201conly guard against any future contention that the Supreme Court has confirmed the ratio of the judgment under challenge whereby either giving rise to a possible contention of merger or that even in future cases, the Supreme Court would be precluded from considering such an issue in better facts\u201d.[80]<\/a> It is respectfully submitted, firstly that Khoday Distilleries<\/em><\/strong> has settled the issue that dismissal of the special leave petition would not result in merger and the dismissal of the petition will not result in any expression of opinion on the judgment under challenge and secondly even if the expression \u201cquestion of law kept open\u201d is absent in the order of the Supreme Court, it would still not preclude the Supreme Court from considering such an issue at a later stage. The dismissal of the special leave petition is nothing more than a refusal to exercise discretionary jurisdiction.<\/p>\n

6. By using the expression \u201cquestion of law kept open\/or is kept open\u201d while dismissing a special leave petition, the Supreme Court could give an excuse to cheeky lawyers, like yours truly, to persuade the High Court to grant a certificate under Article 134-A on the ground that the \u201cquestion of law\u201d is \u201csubstantial\u201d and of \u201cgeneral importance\u201d and since the Supreme Court has kept the question open, the said question \u201cneeds to be decided by the Supreme Court.\u201d<\/p>\n

V. CONCLUDING COMMENTS<\/strong><\/span><\/p>\n

According to the author, Article 136 of the Constitution serves two purposes. One purpose is to ensure that justice is administered in the right manner and the other purpose is to ensure finality even while dealing with interim orders. The article is flexible enough to ensure that both purposes are served. Leaving the question of law open and at the same time refusing special leave to appeal, is like blowing hot and cold at the same time. Such orders lack a certain degree of certainty and above all run counter to the article itself. As has been mentioned in the previous part, nothing prevents the Court from examining a question of law in appeal under Article 136 once leave is granted. Therefore, \u201cleaving the question of law open\u201d for a future date is wholly unnecessary. In future, it would be advisable for the Court to not leave the question of law open while dismissing a special leave petition. This would certainly ensure both certainty and finality.<\/p>\n

\n

<\/a>* The author is a practicing advocate at\u00a0 Bombay High Court and the National Company Law Tribunal, Mumbai<\/span><\/strong><\/p>\n

[1]<\/a> Article 136<\/a>.<\/p>\n

[2]<\/a> Constituent Assembly Debates, Official Report, Sixth Reprint, Vol. VIII, pp. 593, 634-642. See also<\/em> Vijay Hansaria, The Chronicles of Indian Constitution<\/em>, Mohan Law House Publishing Pvt. Ltd, New Delhi, Edn. 2019, pp. 227,228<\/p>\n

[3]<\/a>Except in cases where the writ jurisdiction of the Court under Article 32 is invoked, suits filed under Article 131 of the Constitution, appeals under Articles 132-134 and Presidential references under Article 143.<\/p>\n

[4]<\/a> 138. Enlargement of the jurisdiction of the Supreme Court<\/strong>.<\/strong><\/a><\/p>\n

[5]<\/a> 139. Conferment on the Supreme Court of powers to issue certain writs.<\/strong><\/a><\/p>\n

[6]<\/a>\u00a0 143<\/a>. Power of President to consult Supreme Court.<\/strong><\/p>\n

[7]<\/a> 131. Original jurisdiction of the Supreme Court<\/strong><\/a><\/p>\n

[8]<\/a> 134-A. Certificate for appeal to the Supreme Court<\/strong><\/a><\/p>\n

[9]<\/a> 132. <\/a>Appellate jurisdiction of the Supreme Court in appeals from High Courts in certain cases.<\/strong><\/p>\n

See also Order XVIII-A of the Code of Civil Procedure, 1908.<\/a><\/p>\n

[10]<\/a> Ibid <\/em><\/p>\n

[11]<\/a> 133 <\/a>Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters<\/strong><\/p>\n

[12]<\/a> Ibid<\/em>. Also see Section 109 read with Order XLV of the Code of Civil Procedure, 1908\u00a0<\/a><\/p>\n

[13]<\/a> (1976) 1 SCC 822\u00a0 <\/a><\/p>\n

[14]<\/a> Ibid, <\/em>p. 824 para 2<\/p>\n

[15]<\/a> Ibid <\/em>1973 SCC OnLine Delhi 182 : \u00a0<\/em>ILR (1973) 2 Del 673, 676<\/a><\/p>\n

[16]<\/a> 1962 Supp (3) SCR 549<\/a>\u00a0 para 6<\/p>\n

[17]<\/a> Gadbois, George H., Supreme Court of India :<\/em> The Beginnings<\/em>, Edited by Vikram Raghavan and Vasujith Ram, Oxford University Press, Second impression 2018, p. 35.<\/p>\n

[18]<\/a> Supra <\/em>Note 2 pp. 596 to 633. See <\/em>the speeches of Shri Rohini Kumar Chaudhari, Pandit Thakur Das Bhargava, Prof. Shibban Lal Saksena, Frank Anthony, Dr. P.K. Sen, Dr. P.S. Deshmukh, Pandit Lakshmi Kanta Maitra, Shri K.M. Munshi, Shri Jaspat Roy Kapoor, Dr. Bakshi Tek Chand and Dr. B.R. Ambedkar<\/p>\n

[19]<\/a> Ibid <\/em>p. 598<\/p>\n

[20]<\/a> Hansaria, Vijay, The Chronicles of Indian Constitution<\/em>, Mohan Law House Publishing Pvt. Ltd, New Delhi, Edition 2019, pp. 224, 225<\/p>\n

[21]<\/a> Ibid <\/em><\/p>\n

[22]<\/a> 134. Appellate jurisdiction of Supreme Court in regard to criminal matters<\/strong><\/a>. <\/strong><\/p>\n

[23]<\/a> 135. <\/a>Jurisdiction and powers of the Federal Court under existing law to be exercisable by the Supreme Court.<\/strong><\/p>\n

[24]<\/a> Article 366 (10) \u00a0\u201cexisting law\u201d\u00a0<\/a><\/p>\n

[25]<\/a> 136. <\/a>Special leave to appeal by the Supreme Court.<\/strong><\/p>\n

[26]<\/a> Section 110. Savings<\/strong><\/a><\/p>\n

[27]<\/a> 205. Appellate jurisdiction of Federal Court in appeals from High Courts in British India<\/strong><\/p>\n

Click to access data.pdf<\/a><\/p>\n

[28]<\/a> See <\/em>Section 1 of the Judicial Committee Act, 1844 and Section 3 of the Judicial Committee Act, 1833<\/p>\n

[29]<\/a> Supra <\/em>Note 28<\/p>\n

[30]<\/a> Section 206. Power of Federal Legislature to enlarge appellate jurisdiction https:\/\/www.legislation.gov.uk\/ukpga\/Geo5and1Edw8\/26\/2\/enacted\/data.pdf<\/a><\/p>\n

[31]<\/a> Ibid <\/em><\/p>\n

[32]<\/a> 208. Appeals to His Majesty<\/strong>-in<\/strong>-Council<\/strong> https:\/\/www.legislation.gov.uk\/ukpga\/Geo5and1Edw8\/26\/2\/enacted\/data.pdf<\/a><\/p>\n

[33]<\/a> Gadbois, supra N<\/em>ote 17 p. 53<\/p>\n

[34]<\/a> Seervai H.M., Constitutional Law of India<\/em>, Fourth Edn., Vol. 3, Universal Law Publishing Co, p. 2647 para 25.57. See also<\/em> Renton, A. Wood. \u201cIndian and Colonial Appeals to the Privy Council.\u201d\u00a0Journal of the Society of Comparative Legislation<\/em>, Vol. 1, No. 3, 1899, 345\u2013380, \u00a0JSTOR<\/em>, www.jstor.org\/stable\/751912<\/a>. Accessed 26 June, 2020<\/p>\n

[35]<\/a> Gadbois, George H. \u201cEvolution Of The Federal Court Of India: An Historical Footnote.\u201d\u00a0Journal of the Indian Law Institute<\/em>, Vol. 5, No. 1, 1963, p.19\u00a0JSTOR<\/em>, www.jstor.org\/stable\/43950330<\/a>. Accessed 26 June, 2020.<\/p>\n

[36]<\/a> Section 94. Appellate jurisdiction of Supreme Court in appeals from High Courts in Provinces in other cases.-<\/strong>–<\/strong> Subject to such rules as the Supreme Court may make in this behalf, an appeal shall lie to the Supreme Court from a judgment, decree or final order of a High Court in a Province without any such certificate as aforesaid if \u2013<\/p>\n

(a) The amount or value of the subject matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees, or the judgement, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and where judgment, decree or final order appealed from affirms the decision of the court immediately below, appeal involves substantial question of law; or<\/p>\n

(b) The Supreme Court gives special leave to appeal.<\/p>\n

The section can be found in Hansaria, supra <\/em>N<\/em>ote 20 pp. 227 and 228.<\/p>\n

[37]<\/a> Article 112. Special leave to appeal by the Supreme Court in certain other cases.-<\/strong>-The Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree or final order in any cause or matter, passed or made by any court or tribunal in the territory of India 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. Draft Articles 110 and 111 correspond to the present-day Articles 132 and 133.<\/p>\n

[38]<\/a> Supra<\/em> Note 2 p. 637. See the speech of Shri Krishna Chandra Sharma.<\/p>\n

[39]<\/a> Ibid, <\/em>pp. 634 -642<\/p>\n

[40]<\/a> Ibid, <\/em>p. 636<\/p>\n

[41]<\/a> Ibid. <\/em><\/p>\n

[42]<\/a> Ibid, <\/em>p. 637<\/p>\n

[43]<\/a> Ibid, <\/em>p. 638<\/p>\n

[44]<\/a> Ibid, <\/em>p. 639<\/p>\n

[45]<\/a> Ibid <\/em><\/p>\n

[46]<\/a> Ibid <\/em><\/p>\n

[47]<\/a> Ibid, <\/em>p. 640<\/p>\n

[48]<\/a> Seervai, supra<\/em> Note 34 p. 2647 para 25.57. See also Bharat Bank Ltd. v. The Employees of Bharat Bank Ltd., Delhi,\u00a0 <\/em>(1950) SCR 459<\/a><\/p>\n

[49]<\/a> Ibid <\/em><\/p>\n

[50]<\/a> Ibid, <\/em>p. 2650 para 25.61<\/p>\n

[51]<\/a> Ganga Kumar Srivastava v.\u00a0 State Of Bihar<\/em>,<\/em> (2005) 6 SCC 211, 217 para 10<\/p>\n

[52]<\/a> Ibid <\/em><\/p>\n

[53]<\/a> Seervai, supra <\/em>N<\/em>ote 34 p. 2649 para 25.60<\/p>\n

[54]<\/a> \u00a0\u00a0(1955) 1 SCR 941 http:\/\/www.scconline.com\/DocumentLink\/49Iq0DOZ<\/p>\n

[55]<\/a> Ibid, <\/em>p. 69 para 7<\/p>\n

[56]<\/a> Ibid <\/em><\/p>\n

[57]<\/a> Ibid <\/em><\/p>\n

[58]<\/a> (2016) 7 SCC 700\u00a0\u00a0 http:\/\/www.scconline.com\/DocumentLink\/w660v299<\/p>\n

[59]<\/a> Ibid, <\/em>p. 702 para 6<\/p>\n

[60]<\/a> Kunhayammed v. State of Kerala<\/em>, (2000) 6 SCC 359<\/a>, 371-372, para 14.<\/p>\n

Extracts of the judgment have been reproduced in Khoday Distilleries Limited\u00a0 v. Shri Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal,<\/em> (2019) 4 SCC 376<\/a>, 388-397 para 19-23. See also the doctrine of merger.<\/p>\n

[61]<\/a> Ibid <\/em>p. 389 para 19<\/p>\n

[62]<\/a> Ibid <\/em><\/p>\n

[63]<\/a> Ibid <\/em><\/p>\n

[64]<\/a> Part II<\/p>\n

[65]<\/a> Supra <\/em>Notes 9 and 11.<\/p>\n

[66]<\/a> Section 109. When appeals lie to the Supreme Court <\/strong><\/a><\/p>\n

[67]<\/a> Section 112. Savings<\/strong>\u00a0<\/a><\/p>\n

[68]<\/a> Supra N<\/em>ote 22<\/p>\n

[69]<\/a> Supra<\/em> Note 60.<\/p>\n

[70]<\/a> Ibid, <\/em>p. 389 para 19<\/p>\n

[71]<\/a> Ibid, <\/em>p. 393 para 44 (iii)<\/p>\n

[72]<\/a> Ibid, <\/em>p. 390 para 20<\/p>\n

[73]<\/a> Article 141. Law declared by Supreme Court to be binding on all courts<\/strong><\/a>– The law declared by the Supreme Court shall be binding on all courts within the territory of India.<\/p>\n

[74]<\/a> Supra N<\/em>ote 60 p. 394 para 23(v)<\/p>\n

[75]<\/a> Supra <\/em>Note 6<\/p>\n

[76]<\/a> Supra <\/em>Note 60<\/p>\n

[77]<\/a>Misc. Civil Application (For Review) No. 1412 of 2015 in SCA No. 4353 of 2008, decided on 23-10-2015 (Guj).<\/p>\n

The decision has been further followed by a Single Bench of the Gujarat High Court in Hemal Ishwarbhai Patel <\/em>v. Veer Narmad South Gujarat University,<\/em> 2016 SCC OnLine Guj 10037<\/a><\/p>\n

[78]<\/a> 2013 SCC OnLine Guj 7389<\/a>, para 10.<\/p>\n

It is pertinent to note that the Lucknow Bench of the Allahabad High Court in Faujdar Singh <\/em>v. State of U.P., <\/strong><\/em>2016 SCC OnLine All 3877<\/a>, has taken a contrary view.<\/p>\n

[79]<\/a> Collector<\/em> v. Liquidator, Petrofils Coop. Ltd.,<\/em> Misc. Civil Application (For Review) No. 1412 of 2015 in SCA No. 4353 of 2008, decided on 23-10-2015, para 27 (Guj).<\/p>\n

[80]<\/a> Ibid, <\/em>para 26<\/p>\n","protected":false},"excerpt":{"rendered":"

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