Special leave to appeal by the Supreme Court

Article 112, Draft Constitution of India 1948

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.

Article 136, Constitution of India 1950

(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.

Draft Article 112 (Article 136) was debated in the Constituent Assembly on 6th June 1949 and 16th October 1949. It defined the Supreme Court’s powers to grant special leave to appeal.

One member proposed deleting the language which restricted the Supreme Court from hearing any case on appeal from a court or tribunal of the Unions of States. He argued that since the Instruments of Accession gave the Central government the power to govern all matters except taxation, this created a pointless distinction between the princely states and the provinces. He also contended that it was improper to apply such jurisdictional limitations on the Supreme Court. This amendment was positively received by the Assembly, with several members making arguments in favour of an explicit expansion of the court’s powers. One member argued that the court should be able to determine cases using ‘the principles of jurisprudence and considerations of natural justice’. Another believed that the Draft Article should specifically be expanded to extend to ‘civil, criminal, or revenue‘ matters. A member of the Drafting Committee clarified that the Supreme Court was free to develop its own rules when exercising its jurisdictions, and that there was nothing to prevent it from interfering even in criminal cases.

The proposed amendment was accepted by the Assembly, and Draft Article 112 was initially adopted on 6th June 1949.

Subsequently, a member of the Drafting Committee proposed to wholly replace the adopted Draft Article with the following:

‘112. (1) The Supreme court may, in its discretion, grant special leave to appeal from any judgement, 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 judgement, determination, sentence or order passed or made by any court of tribunal constituted by or under any law relating to the Armed Forces.‘

The addition of clause (2) was made at the behest of the Defence Ministry, who cited the examples of countries such as the UK following a similar practice of excluding decisions of court-martials from the jurisdiction of the Supreme Court. This amendment received strong opposition in the Assembly. One member argued that persons convicted to death in military tribunals should have the right of appeal because the procedures followed in such tribunals was ‘against all laws of jurisprudence’. Another contended that the civilians who committed offences under the jurisdiction of these tribunals would be unfairly deprived of their right to appeal. The Chairman of the Drafting Committee, who had earlier taken a different stance on this matter, stated that he had been convinced by the Defence Ministry that this clause was necessary to maintain discipline in the army. He also clarified that the Supreme Court was not fully stripped of its power with regard to the armed forces, as it could still examine whether a specific court martial exceeded its jurisdiction, or whether proceedings were completely arbitrary.

The amendment was accepted by the Assembly, and the amended Draft Article was adopted on 16th October 1949.