Scope of Article 136:

 

Scope of Article 136:

The article occurs in Chapter IV of Part V of the Constitution "The Union Judiciary." The language employed in this article is very wide and is of a comprehensive character. Power given are of an overriding nature.[1]

It is fully recognized that the scope of Art. 136 of the Constitution is very wide, but the significance of the language used in the section can be appreciated only by comparing it with the articles which precede it. Art. 132 deals with the Appellate Jurisdiction of the Supreme Court in cases involving a substantial question of law as to the interpretation in the Constitution, and the words used in that article are : "appeal........ from any judgment, decree or final order." Art. 133 deals with appeal in civil matters and the same words are used here also. Art. 134 deals with appeals in criminal matters, and the words used in it are; "appeal........ from any judgment, final order or sentence." In Art. 136, the words "judgment" and "decree," which are used in Arts. 132 and 133 are retained. Similarly, the words "judgment" and.........."sentence" occurring in Art. 134 are also retained. But the expression "final order" becomes "order," and, instead of the High Court, reference is made to "any Court." Certain other words are also used in the article which seem to me to have a special significance, these being "determination," "cause or matter" and "tribunal." It is obvious that these words greatly widen the scope of Art. 136. They show that an appeal will lie also from a determination or order of "any tribunal" in any cause or matter. [1]

It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals by granting of special leave against any kind of judgment, decree or order made by any Court or tribunal in any cause or matter and the powers could be exercised in spite of and overriding the specific provisions for appeal contained in the previous Articles.[1]

The article commences with the words "Notwithstanding anything in this Chapter." These words indicate that the intention of the Constitution was to disregard in extraordinary cases the limitations contained in the previous article on this Court's power to entertain appeals. These articles dealt with the right of appeal against final decisions of High Courts within the territory of India Art. 136, however, overrides that qualification and empowers this Court to grant special leave even in case where the judgment has not been given by a High Court but has been given by any Court in the territory of India : in other words, it contemplates grant of special leave in cases where a Court subordinate to a High Court has passed or made any order and the situation demands that the order should be quashed or reversed even without having recourse to the usual procedure provided by law in the nature of an appeal, etc.[1]

The word "order" in Art. 136 has not been qualified by the word "final." It is clear, therefore, that the power to grant special leave under this article against an order of a Court could be exercised with respect to interlocutory orders also. Another new feature introduced in Art. 136 is the power given to grant special leave against orders and determinations, etc., of any tribunal in the territory of India.[1]

On the one hand, it was contended that the words "determination" and "tribunal" were introduced in the article in order to bring within the scope of the appellate jurisdiction of this Court all orders of tribunals of different varieties and descriptions. On the other hand, it was said that the words "determination" and "tribunal" were added in the article by way of abundant caution and the intention was that if a tribunal exercised the judicial powers of the State and the decisions passed in the exercise of that power, this Court as the highest judicial Court in the Republic would have power if it considered necessary in the ends of justice to grant special leave. Clause (2) of Art. 136 excludes the jurisdiction of this Court in respect of military Courts or tribunal.[1]

By Art. 136 it has been given overriding power to grant special leave to appeal against orders of Court and tribunals which go against the principles of natural justice and lead to grave miscarriage of justice. The exercise of these powers could only have been contemplated in cases which affect the rights of people living within the territory of India in respect of their person, property or status. [1]

Tribunals which do not derive authority from the sovereign power cannot fall within the ambit of Art. 136. The condition precedent for bringing a tribunal within the ambit of Art. 136 is that it should be constituted by the State. Again a tribunal would be outside the ambit of Art. 136 if it is not invested with any part of the judicial functions of the State but discharges purely administrative or executive duties. Tribunals, however, which are found invested with certain functions of a Court of justice and have some of its trappings also would fall within the ambit of Art. 136 and would be subject to the Appellate control of this Court whenever it is found necessary to exercise that control in the interests of justice.[1]

The article empowers Supreme Court to grant special leave against sentences or orders made by this Court. In all other articles of the Constitution right of appeal is conferred against final decisions of the highest Court of Appeal in the country but under this article prayer is given to this Court to circumvent that procedure if it is considered necessary to do.[1]

 

References:

[1] The Bharat Bank Ltd., Delhi vs The Employees Of The Bharat Bank Ltd., [(1950)SUPPSC1R317]

Note: This blog comprises of case commentaries based on the judgments listed under the heading "Reference". The opinions and comments of the sitting judges in those cases are copies word to word in this blog for sake of knowledge only.

Thanks for reading. Please share this piece of information with all to know the applicability of laws which are affecting their lives. Comment the subject you want to know.