I. INTRODUCTION
The concept of special leave to appeal, as enshrined in Article 136 of the Constitution of India, represents one of the most significant and expansive judicial powers vested in the Supreme Court. This discretionary jurisdiction enables the apex court to grant special permission to appeal from any judgment, decree, determination, sentence, or order passed by any court or tribunal within the territory of India. Unlike ordinary appeals, which are governed by specific statutory provisions and subject to rigid procedural requirements, special leave petitions operate on an entirely different plane—one rooted not in right, but in the discretion and wisdom of the Supreme Court itself.
The origins of this extraordinary power trace back through centuries of legal evolution, from the medieval concept of the King as the fountain of justice to the sophisticated appellate structures of the British colonial period. Understanding this historical trajectory is essential to appreciating both the scope and the limitations of Article 136 as it functions today. This article examines the historical foundations, constitutional debates, and judicial interpretation that have shaped special leave jurisdiction in India, demonstrating how ancient prerogative powers were transformed into a constitutional mechanism for ensuring justice in exceptional circumstances.1
II. THE ROYAL PREROGATIVE AND THE KING-IN-COUNCIL
Every legal system has experimented with mechanisms for correcting errors and mistakes in judicial determinations. The Roman legal system developed four distinct methods for addressing errors in fact-finding and legal application: inspection of records for non-conformity with law, rehearing before higher tribunals, reference of crucial legal questions to ultimate appellate authorities, and rehearing in the same court upon petition.2 The history of continental civil procedure similarly narrates the Roman and Canon law procedures of ecclesiastical courts, which included equitable relief against judgments and provision for rehearings. These procedures were subsequently adopted in France and other European jurisdictions.3
In England, the concept of appeal evolved from the foundational principle that the King was regarded as the supreme source of justice—the ‘fountain of justice’—and his council possessed both advisory and judicial functions. From the earliest times, residual justice remained with the King for certain matters that were addressed by the King’s council working in specialized committees. The origins can be traced to the Curia Regis, or royal council, established during the Norman Conquest of 1066. In theory, petitions for redress of wrongs arising from the King’s courts were addressed directly to the monarch. This power was gradually assumed by Parliament within England, but the King-in-Council retained jurisdiction to hear petitions from the King’s non-English possessions, including the Channel Islands and, subsequently, England’s colonial territories.4
The jurisdiction of the Privy Council to entertain appeals was fundamentally based on the royal prerogative of the sovereign as the fountain of justice. As the British Empire expanded during the seventeenth century, it became necessary for the King-in-Council to adjudicate appeals from the colonies. This function was entrusted to the Privy Council, and the right to appeal became a privilege of the King’s subjects. Such appeals came to be designated as ‘appeals by special leave,’ representing appeals that lay outside the conditions and limitations prescribed for ‘appeals as of right.’
III. THE JUDICIAL COMMITTEE ACT 1833: FORMALIZATION OF APPELLATE JURISDICTION
The Judicial Committee Act 1833 marked a watershed moment in the institutionalization of appellate jurisdiction within the British Empire. Enacted on 14 August 1833, at the instigation of Lord Brougham, the Lord Chancellor, the Act established the Judicial Committee of the Privy Council as a distinct statutory committee to hear appeals to the King-in-Council.5 Prior to this Act, appeals from colonial and ecclesiastical courts were heard by general committees of the Privy Council, often consisting of members without legal training or expertise in colonial law.
The 1833 Act created a permanent judicial body with defined membership, including the Lord Chancellor, former Lords Chancellor, members of the Judicial Committee of the House of Lords, and Privy Councillors who had held high judicial office in the United Kingdom or its colonies. This composition ensured that the committee was dominated by experienced jurists rather than lay members.6 The Act also provided for the appointment of judges who had served in high judicial offices in British India, thereby incorporating expertise in Indian laws into the committee’s deliberations.7
Although the Judicial Committee’s decisions took the form of advice to the Crown, incorporated into Orders in Council, they functioned as binding judgments throughout the Empire. The Committee exercised the power of judicial review in several cases from the American colonies and quickly assumed the role of the Empire’s supreme appellate tribunal. At its zenith, the Judicial Committee was described as the court of final appeal for over a quarter of the world’s population.
IV. SPECIAL LEAVE TO APPEAL IN INDIA: EVOLUTION THROUGH BRITISH RULE
A. The Charter of 1726 and Early Appellate Structure
In the Indian legal context, the Charter of 1726 granted the first right of appeal from courts in India to the Privy Council. The Charter established three Mayor’s Courts at Calcutta, Madras, and Bombay. Provision was made for a first appeal from decisions of the Mayor’s Court to the Governor-in-Council in the respective provinces, and a second appeal lay to the Privy Council in England. The Charter of 1753, which reestablished the Mayor’s Courts, reaffirmed these provisions.
The Regulating Act of 1773 empowered the Crown to issue a Charter for the establishment of a Supreme Court at Calcutta, which was accomplished through the Charter of 1774. This Charter granted a right of appeal from judgments of the Supreme Court to the Privy Council in civil matters, subject to specified monetary thresholds and procedural requirements.
B. The Indian High Courts Act 1861
Under the Indian High Courts Act 1861, High Courts were established in three provinces, amalgamating the previously separate King’s Courts and Company’s Courts. This Act provided for the right to appeal from High Courts to the Privy Council from all judgments except in criminal matters.8 Critically, the Act also included a provision for special leave to appeal in certain cases to be certified by the High Courts. This represented an early statutory recognition of the special leave mechanism in the Indian context, operating alongside appeals as of right.
C. The Government of India Act 1935
The Government of India Act 1935 represented a comprehensive reorganization of India’s legal and constitutional structure. The Act established a Federal Court in India with exclusive original jurisdiction to decide disputes between the Centre and constituent units. Importantly, the Act made elaborate provisions for special leave to appeal.
The expression ‘special leave to appeal’ in Article 136(1) of the Indian Constitution was directly adopted from the Government of India Act 1935. The phrase appears in five places in the 1935 Act. Section 205(2) allowed parties to appeal to the Federal Court on grounds involving substantial questions of law, without needing special leave from His Majesty-in-Council.9 Section 206(1)(b) empowered the Federal Legislature to permit appeals to the Federal Court in certain civil cases, subject to the Federal Court granting special leave.10 Section 208 dealt with appeals to His Majesty-in-Council, permitting appeals without leave in certain original jurisdiction cases, and with leave of the Federal Court or special leave granted by His Majesty-in-Council in other cases.11
Most significantly, Section 110(b)(iii) of the 1935 Act prohibited the Federal Legislature or Provincial Legislatures from making any law derogating from any prerogative right of His Majesty to grant special leave to appeal from any court, except where the Act expressly provided otherwise.12 This provision explicitly preserved the royal prerogative to grant special leave, demonstrating the continued importance of this mechanism even within the statutory appellate framework.
The constitutional significance of the special leave jurisdiction was underscored in landmark cases such as Nadan v The King (1926), where the Privy Council ruled that provisions in the Canadian Criminal Code purporting to bar appeals to the Privy Council were ultra vires, as they were repugnant to the Colonial Laws Validity Act 1865 and the Privy Council Acts of 1833 and 1844. The case established that the prerogative of the Crown to grant special leave could not be abrogated by colonial legislation absent express Imperial statutory authorization.13
D. Abolition of Appeals to the Privy Council
Following Indian independence, the Federal Court (Enlargement of Jurisdiction) Act 1948 abolished the system of filing direct appeals from High Courts to the Privy Council with or without special leave.14 Subsequently, the Abolition of Privy Council Jurisdiction Act 1949 comprehensively abolished the jurisdiction of the Privy Council to entertain new appeals and petitions and provided for the transfer of all pending cases to the Federal Court in India.15 All powers of the Privy Council regarding appeals from High Courts were thereby conferred upon the Federal Court. With the commencement of the Constitution of India on 26 January 1950, the Supreme Court replaced the Federal Court as the apex judicial authority, inheriting and expanding upon the special leave jurisdiction.
V. THE CONSTITUENT ASSEMBLY DEBATES ON ARTICLE 136
Draft Article 112, which ultimately became Article 136 of the Constitution, was debated in the Constituent Assembly on 6 June 1949 and 16 October 1949. These debates reveal the careful consideration given by the framers to the scope and nature of the Supreme Court’s discretionary appellate jurisdiction.16 The debates witnessed active participation from several distinguished members of the Assembly, reflecting diverse perspectives on the appropriate scope of the Supreme Court’s special leave jurisdiction.
A. The Debate of 6 June 1949: Initial Consideration
During the debate on 6 June 1949, Shri Ram Sahai of Madhya Bharat proposed deleting language that restricted the Supreme Court from hearing appeals from courts or tribunals of the princely states (referred to as ‘States for the time being specified in Part III of the First Schedule’). He argued that since the Instruments of Accession gave the Central government power over all matters except taxation, maintaining such distinctions between princely states and provinces was both pointless and improper.17 This amendment was positively received, with several members arguing in favour of an explicit expansion of the court’s powers.
Shrimati G. Durgabai supported the proposal to extend the jurisdiction uniformly across all territories. One member notably argued that the court should be empowered to determine cases using ‘the principles of jurisprudence and considerations of natural justice,’ reflecting a desire to incorporate equitable principles into the special leave jurisdiction.18 Another member believed that Draft Article 112 should be specifically expanded to extend to ‘civil, criminal, or revenue’ matters, ensuring comprehensive coverage.
A member of the Drafting Committee, likely Dr. B.R. Ambedkar as the Chairman, clarified that the Supreme Court would be free to develop its own rules when exercising its jurisdiction under the article, and that there was nothing to prevent it from interfering even in criminal cases. This clarification was important in addressing concerns about the scope of the jurisdiction.
B. Principles of Restraint and Justice
Shri H.V. Pataskar made a particularly significant intervention during the debates. He stated that the Supreme Court should act as ‘some independent body which must be the guardian of administration of justice’ in all matters. He emphasized that the Supreme Court was not likely to grant special leave ‘in any matter whosoever’ unless there was a serious breach of the administration of justice that went to the root of the matter.19 This observation proved remarkably prescient, foreshadowing the subsequent judicial interpretation of Article 136 as a mechanism to be invoked only in exceptional circumstances involving substantial injustice.
Shri Krishna Chandra Sharma supported the provision, arguing that it gave the judiciary a status ‘equivalent and in no way subordinate to the executive and legislature.’ This view reflected the Assembly’s commitment to judicial independence and the separation of powers.
However, not all members were equally enthusiastic. Pandit Thakur Das Bhargava expressed skepticism about the provision, considering it ‘exceptionally wide’ and a ‘remnant of the most accursed political right of the divine right of kings,’ which would make the Supreme Court ‘above law.’ His concerns reflected apprehension about concentrating excessive discretionary power in the judiciary.
Shri Alladi Krishnaswami Ayyar, a prominent member with extensive legal expertise, supported the article and distinguished the Indian provision from the Judicial Committee of the Privy Council. He argued that unlike the Privy Council, which exercised jurisdiction over territories where it had no direct connection to the administration of justice, the Supreme Court of India would be intimately connected with the Indian legal system and better positioned to exercise such discretion appropriately.
C. Complementary Provisions on Criminal Appeals
During the debate on 14 June 1949, Shri Naziruddin Ahmad of West Bengal made important observations linking Article 112 (later Article 136) with other provisions on criminal appeals. He submitted that Article 112 had committed the Assembly to accepting the principle that appeals in criminal cases should also lie on a certificate given by the High Court concerned. He noted that special leave was ‘a residuary provision to guard against the High Court improperly refusing to grant the requisite certificate.’20
Shri Naziruddin Ahmad further observed that it would be apposite for the Supreme Court to grant leave only in those cases where a substantial question of law was involved and the High Courts had committed an error by not granting the certificate to appeal. He submitted that a substantial question of law had a limited scope and included only a high standard of irregularity in law, not mere procedural irregularities.
D. The Debate of 16 October 1949: Final Formulation
The proposed amendment was initially accepted by the Assembly, and Draft Article 112 was adopted on 6 June 1949. However, on 16 October 1949, a member of the Drafting Committee proposed to wholly replace the adopted Draft Article with a new formulation that clarified the scope of the jurisdiction. The revised version stated: ‘(1) 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) of this article 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.’21
The addition of clause (2), excluding military tribunals, was made at the behest of the Defence Ministry, citing the practice in countries such as the United Kingdom of excluding decisions of courts-martial from the jurisdiction of the highest appellate court. This amendment received strong opposition in the Assembly, with members arguing that persons convicted to death by military tribunals should have the right of appeal, particularly given concerns about procedural fairness in such tribunals. One member pointedly argued that the procedures followed in military tribunals were ‘against all laws of jurisprudence’ and that civilians who committed offences under military law should not be denied access to the Supreme Court.
Despite these objections, the amended Draft Article was ultimately adopted on 16 October 1949, with the military tribunal exception remaining in place. The debates thus concluded with a broad grant of discretionary jurisdiction to the Supreme Court, tempered only by the exclusion of military matters and the implicit understanding that the power would be exercised with appropriate restraint.
VI. ARTICLE 136 OF THE CONSTITUTION: PROVISIONS AND SCOPE
Article 136 as finally enacted provides: ‘(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.’22 This extraordinarily broad language confers upon the Supreme Court a plenary jurisdiction, limited only by clause (2), which states: ‘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.’23
The constitutional provision empowers the Supreme Court to grant, in its discretion, special leave to appeal from any judgment, decree, determination, sentence, or order passed by any court or tribunal in India. This jurisdiction extends to civil, criminal, and constitutional matters, and applies to both final and interlocutory orders. The power is explicitly discretionary—the Court is under no obligation to grant leave, and may refuse special leave petitions without assigning reasons.
The order granting special leave must, however, be an adjudicatory order passed by an authority constituted by the State by law for the purpose. The order must be passed by an authority constituted by or under the authority of an Act of Parliament or the legislature of a dependent territory. The powers conferred by Article 136 are in the nature of special or residuary powers, exercisable outside the purview of the ordinary law relating to appeals. The provision operates on the premise that needs of justice may demand interference by the Supreme Court to correct or remedy an injustice as perceived by the Court.
VII. PRINCIPLES GOVERNING THE GRANT OF SPECIAL LEAVE
A. Principles Inherited from the Privy Council
The Supreme Court adopted principles that were being followed by the Judicial Committee of the Privy Council in granting special leave to appeal. In granting special leave, the Privy Council adhered to the principle that leave would be granted where some important question of law or matter of public interest was involved.24 The Privy Council did not act as a normal Court of criminal appeal, but would intervene only to vindicate the law where there had been a miscarriage of justice by neglect of essential legal principles.25
In civil cases, special leave to appeal was granted when the case involved a substantial question of law or when the case was of some gravity involving some matter of public interest or was of substantial character.26 In criminal proceedings, leave to appeal was granted only if there was disregard of forms of legal process or some violation of the principle of natural justice, or grave and substantial injustice had been done.27 The Privy Council reiterated that the exercise of the prerogative takes place only where it is shown that injustice of a serious and substantial character has occurred. A mere mistake on the part of the lower court, as in the admission of improper evidence, would not suffice if it had not led to injustice of a grave character.28
B. Interpretation by the Supreme Court of India
The first occasion on which the Supreme Court interpreted Article 136 was in Pritam Singh v State (1950), where a Constitutional Bench dismissed a criminal appeal primarily on the ground that the Supreme Court is not an ordinary court of appeal. The Court observed that facts cannot be allowed to be reopened and that the discretionary power under Article 136 must be exercised sparingly and only in exceptional circumstances when it is shown that a substantial and grave injustice has been done.29
In State of Madras v K.M. Rajagopalan (1955), the Court held that special leave would be granted only sparingly, as stated above, where the Court perceives a need to remedy an injustice and not because the cause under appeal is claimed to be not right. An appeal for special leave under Article 136 would be inappropriate merely to obtain a declaration that a casual statement in a judgment of the Supreme Court which ex facie had no kinship with the question under the referred decision was not the ratio in the case.30
In Dhakeswari Cotton Mills Ltd v CIT (1954), the Supreme Court reiterated that the discretionary powers under Article 136 should be exercised only in exceptional circumstances. The Court emphasized that Article 136 vests the Supreme Court with a plenary jurisdiction to grant, in its discretion, special leave to appeal from any judgment or order, and this discretion is to be exercised to meet the ends of justice.31
The Supreme Court has consistently held that the special leave practice shows that the principles evoked by it are in consonance with and meet the emergent demands of justice, and will therefore be granted only sparingly where the Court perceives that need to remedy an injustice and not because the cause under appeal is claimed to be not right.32 The jurisdiction under Article 136 is thus residuary and discretionary, designed to serve as a constitutional safety valve to prevent miscarriage of justice when all other remedies have been exhausted or are unavailable.33
VIII. CONCLUSION
The history and origin of special leave to appeal under Article 136 of the Constitution of India demonstrate a remarkable continuity of legal principles across centuries and across political transformations. From the medieval concept of the King as the fountain of justice, through the formalization of appellate procedures in the Judicial Committee Act 1833, to the comprehensive provisions of the Government of India Act 1935, and finally to its constitutional enshrinement in independent India, the special leave mechanism has evolved while retaining its essential character as an extraordinary remedy for exceptional circumstances.
The debates in the Constituent Assembly reveal that the framers of the Constitution were acutely aware of the historical pedigree of this jurisdiction and deliberately chose to vest the Supreme Court with a broad discretionary power to ensure that justice would not be defeated by rigid procedural limitations. The participation of distinguished members such as Shri H.V. Pataskar, Shri Alladi Krishnaswami Ayyar, Pandit Thakur Das Bhargava, Shri Naziruddin Ahmad, and others ensured that diverse perspectives were considered, resulting in a provision that balanced the need for judicial flexibility with appropriate restraint. The Supreme Court has, in turn, exercised this power with appropriate restraint, adhering to principles inherited from the Privy Council while adapting them to the constitutional framework of independent India.
Article 136 stands as a testament to the wisdom of preserving flexibility in the pursuit of justice. By conferring discretionary jurisdiction on the apex court to intervene when substantial injustice has occurred or when important questions of law and public interest require authoritative determination, the Constitution ensures that the Supreme Court can serve as the ultimate guardian of justice in the Indian Republic. This extraordinary power, rooted in centuries of legal tradition and carefully transplanted into India’s constitutional soil, continues to play a vital role in the administration of justice and the protection of fundamental rights.
The evolution from royal prerogative to constitutional discretion reflects not merely a transfer of power from the Crown to an indigenous institution, but a fundamental transformation in the nature and purpose of judicial authority. While the Privy Council exercised special leave jurisdiction as an emanation of royal mercy and imperial oversight, the Supreme Court exercises this power as the highest constitutional authority of a sovereign democratic republic, accountable to the Constitution and the people. This transformation imbues Article 136 with a unique character—it is simultaneously a link to a rich historical tradition and a distinctly modern instrument of constitutional governance.