Lost in the High Court? When the Supreme Court Will Hear a Special Leave Petition Under Article 136
A Special Leave Petition is the usual route to the Supreme Court against a High Court judgment, but it is not an appeal as of right. The Court decides first whether to grant leave at all, and it does so only in exceptional cases. This article explains the constitutional basis of the remedy, the test the Court applies, the time limits and filing requirements under the Supreme Court Rules, 2013, what a dismissal of the petition means, and the limited remedies that remain afterwards.
When a case is lost in the High Court, the next question is usually whether the Supreme Court can be approached. In most civil and criminal matters, the route is a Special Leave Petition (SLP) under Article 136 of the Constitution of India. Many litigants assume that an SLP is a second appeal that the Supreme Court must hear. It is not. The Court first decides whether to grant leave at all, and a petition may be dismissed at that preliminary stage without the appeal ever being heard.
This article explains the constitutional basis of the remedy, the test the Supreme Court applies, the time limits and filing requirements under the Supreme Court Rules, 2013, the consequences of dismissal, and the limited remedies that remain afterwards. It reflects the law as verified on 13 October 2026.
THE CONSTITUTIONAL PROVISION
Article 136(1) provides that 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. The power is not confined to High Court judgments; it extends to orders of tribunals and other courts. Article 136(2) excludes judgments, determinations, sentences or orders passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.
Two words in Article 136 define its character: 'may' and 'discretion'. The Constitution does not confer a right of appeal. It confers on the Supreme Court a power to permit an appeal in cases it considers fit.
THE TEST: EXCEPTIONAL CASES ONLY
The approach was laid down soon after the Constitution came into force. In Pritam Singh v. The State, decided by a five-Judge Bench on 5 May 1950, the Supreme Court held that the power under Article 136 is to be exercised sparingly and in exceptional cases only, and that in criminal matters the Court will not grant special leave unless special and exceptional circumstances are shown to exist and substantial and grave injustice has been done. The Court also indicated that it will not ordinarily reappraise findings of fact on which the courts below agree.
This position has been repeated consistently. In Mathai alias Joby v. George, (2010) 4 SCC 358, the Court, relying on N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196, stated that Article 136 is not a regular forum of appeal (paragraph 6), and that it is a discretionary remedy under which the Court is not bound to interfere even if there is an error of law or fact in the impugned order (paragraph 5).
The 2010 order in Mathai referred to a larger Bench the question whether the scope of Article 136 should be restricted to reduce pendency. On 11 January 2016, a Constitution Bench declined to restrict the power, observing that it should instead be exercised with circumspection: Mathai alias Joby v. George, (2016) 7 SCC 700. The law therefore remains that the power is wide, but its exercise is discretionary and reserved for cases that warrant it.
In practical terms, an SLP that seeks only a fresh evaluation of evidence, or that repeats arguments rejected below without identifying a substantial question of law or a serious miscarriage of justice, faces significant difficulty at the admission stage. The petition should identify the specific legal error and explain why it calls for the Supreme Court's intervention.
TIME LIMITS
Order XXI Rule 1 of the Supreme Court Rules, 2013 governs civil SLPs. The petition must be filed within ninety days from the date of the judgment or order sought to be appealed, or within sixty days from the date of an order of the High Court refusing a certificate of fitness to appeal to the Supreme Court. Order XXII Rule 1 prescribes the same periods for criminal SLPs, with a period of sixty days where a sentence of death has been imposed.
These periods are subject to Sections 4, 5, 12 and 14 of the Limitation Act, 1963. Section 12 excludes time requisite for obtaining a copy of the judgment, and Section 5 permits the Court to condone delay where sufficient cause is shown. Condonation is not automatic, and an application for condonation of delay must explain the delay. In civil SLPs, the Rules require notice to the respondent before delay is condoned.
WHAT THE PETITION MUST CONTAIN
An SLP is filed through an Advocate-on-Record. Under Order XXI Rule 3, a civil SLP is filed in the prescribed form, with a list of dates setting out the material facts in chronological order. Any prayer for interim relief is made within the petition itself, and a separate application is not required.
The petition is confined to the pleadings and documents that were before the court or tribunal below. Additional grounds, facts or documents may be relied upon only with the leave of the Court. The petition must state whether any earlier SLP has been filed against the same order and, if so, its result; failure to disclose an earlier petition may lead to dismissal, or to revocation of leave already granted. The petition must also state whether a Letters Patent appeal or writ appeal lay against the impugned order and whether it was availed. Under Order XXI Rule 4, the petition is accompanied by a certified copy of the impugned judgment and an affidavit in support of the facts.
Order XXII Rule 2 applies corresponding requirements to criminal SLPs, including the bar on raising new facts or grounds without permission and the obligation to disclose any earlier petition.
In civil SLPs, unless the respondent has lodged a caveat, the petition is ordinarily heard in the first instance without notice to the other side. The Court may dismiss it at that stage, issue notice, or grant leave. A party expecting an SLP may lodge a caveat to ensure that it is heard before any order is passed.
THE SURRENDER REQUIREMENT IN CRIMINAL SLPS
Order XXII Rule 5 provides that where the petitioner has been sentenced to imprisonment, the petition must state whether the petitioner has surrendered. Proof of surrender, such as a certified copy of the order recording it or a certificate from the competent jail officer, must be filed. If the petitioner has not surrendered, the Registry will not accept the petition unless it is accompanied by an application seeking exemption from surrendering, which is listed for orders first.
Because a petitioner sentenced to imprisonment who has not surrendered depends on the grant of that exemption, the exemption application must disclose the circumstances fully, including the sentence, the period already undergone, and the grounds on which exemption is sought.
WHAT HAPPENS IF THE SLP IS DISMISSED
The effect of a dismissal depends on the stage at which it occurs. The governing principles were set out by a three-Judge Bench in Kunhayammed v. State of Kerala, (2000) 6 SCC 359, decided on 19 July 2000, and summarised in paragraph 44 of that judgment. They were reaffirmed by another three-Judge Bench in Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., (2019) 4 SCC 376, decided on 1 March 2019 (paragraph 26).
Where special leave is refused, whether by a non-speaking order or a reasoned order, the High Court's judgment does not merge into the Supreme Court's order. The refusal means only that the Court was not inclined to exercise its discretion to entertain the appeal. Where the order refusing leave gives reasons, any law declared in it binds all courts under Article 141, and its findings bind the parties, but the doctrine of merger still does not apply.
Where leave is granted and the appeal is decided, the position changes. The Supreme Court's decision, whether it reverses, modifies or affirms the High Court's judgment, attracts the doctrine of merger. Once leave is granted, the High Court can no longer entertain a review of its own judgment under Order 47 Rule 1 of the Code of Civil Procedure, 1908.
This distinction has a practical consequence. In Khoday Distilleries, the Court held that a review petition can be pursued before the High Court even after an SLP against the same judgment is dismissed without grant of leave (paragraph 26). The Supreme Court applied this in Sangita v. State of Maharashtra, decided on 1 April 2024, setting aside a High Court order that had dismissed a review application on the ground of merger where the SLP had been dismissed at the leave stage (paragraph 6).
REVIEW AND CURATIVE PETITIONS IN THE SUPREME COURT
A party may seek review of a Supreme Court judgment or order under Article 137 and Order XLVII of the Supreme Court Rules, 2013. The review petition must be filed within thirty days. In civil matters it is confined to the grounds in Order 47 Rule 1 of the Code of Civil Procedure, and in criminal matters to an error apparent on the face of the record. A review petition is ordinarily decided by circulation, without oral arguments, unless the Court directs otherwise.
Beyond review, a curative petition may be entertained only in the narrow circumstances recognised by a Constitution Bench in Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388, decided on 10 April 2002, such as a violation of the principles of natural justice or an apprehension of bias. The petition must state that the grounds were raised in the review petition, which was dismissed by circulation, and must carry a certificate from a Senior Advocate. A curative petition is not a further round of arguments on merits.
DOCUMENTS TO GATHER
The following are usually required to assess and prepare an SLP: the impugned judgment and, where available, its certified copy with the dates of application and delivery; the complete pleadings, evidence and documents that were before the High Court and the court below; earlier orders in the case, including interim orders; any order refusing a certificate of fitness; details of any earlier SLP or review against the same order; in criminal matters, the judgment of conviction and sentence, custody certificate or proof of surrender, and details of the period undergone; and an account of any delay in filing.
PRACTICAL SUMMARY
A Special Leave Petition is a discretionary remedy, not a second appeal. The Supreme Court grants leave only where a substantial question of law, a serious miscarriage of justice, or other exceptional circumstance is shown. The petition should ordinarily be filed within ninety days of the judgment, or sixty days from refusal of a certificate of fitness, and any delay must be explained. It must be confined to the record of the court below and must disclose any earlier petition. A petitioner sentenced to imprisonment must surrender or seek exemption from surrender. Dismissal at the leave stage does not merge the High Court's judgment into the Supreme Court's order, which keeps a review before the High Court available; once leave is granted, the position changes. Review and curative petitions before the Supreme Court are narrow remedies with strict requirements. A careful assessment of the record and the precise legal error should precede any decision to file.
This article is intended for general information and does not constitute legal advice. The applicable law and the facts of each case should be examined before any action is taken.
Key Authorities Cited
- Pritam Singh v. The State — Supreme Court of India, May 5, 1950, AIR 1950 SC 169; [1950] SCR 453
- Mathai alias Joby v. George — Supreme Court of India, March 19, 2010, (2010) 4 SCC 358 (paras 5, 6)
- Mathai alias Joby v. George (Constitution Bench) — Supreme Court of India, January 11, 2016, (2016) 7 SCC 700
- Kunhayammed v. State of Kerala — Supreme Court of India, July 19, 2000, (2000) 6 SCC 359 (paras 44)
- Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. — Supreme Court of India, March 1, 2019, (2019) 4 SCC 376 (paras 26)
- Sangita v. State of Maharashtra — Supreme Court of India, April 1, 2024, Civil Appeal Nos. 4609-4610 of 2024 (paras 6)
- Rupa Ashok Hurra v. Ashok Hurra — Supreme Court of India, April 10, 2002, (2002) 4 SCC 388
Statutory Provisions
- Constitution of India — Article 136 (special leave to appeal; clause (2) excludes courts and tribunals constituted under any law relating to the Armed Forces)
- Constitution of India — Article 137 (review of judgments or orders by the Supreme Court)
- Constitution of India — Article 141 (law declared by the Supreme Court binding on all courts)
- Supreme Court Rules, 2013 — Order XXI, Rules 1, 3 and 4 (civil SLPs: limitation, contents, accompanying documents)
- Supreme Court Rules, 2013 — Order XXII, Rules 1, 2 and 5 (criminal SLPs: limitation, contents, surrender and exemption from surrender)
- Supreme Court Rules, 2013 — Order XLVII (review: grounds, thirty-day limitation, disposal by circulation)
- Limitation Act, 1963 — Sections 4, 5, 12 and 14 (as applied by Order XXI Rule 1 and Order XXII Rule 1 of the Supreme Court Rules, 2013)
- Code of Civil Procedure, 1908 — Order XLVII Rule 1 (review)
Frequently Asked Questions
Is a Special Leave Petition an appeal as of right?
No. Article 136 gives the Supreme Court a discretion to grant special leave to appeal. The Court has consistently held that the power is to be exercised sparingly and in exceptional cases, and that it is not bound to interfere even where the impugned order contains an error of law or fact.
What is the limitation period for filing an SLP?
Under Order XXI Rule 1 and Order XXII Rule 1 of the Supreme Court Rules, 2013, an SLP is ordinarily to be filed within ninety days from the date of the judgment or order, or within sixty days from an order of the High Court refusing a certificate of fitness. In criminal cases involving a sentence of death, the period is sixty days. These periods are subject to Sections 4, 5, 12 and 14 of the Limitation Act, 1963, so time for obtaining a copy is excluded and delay may be condoned for sufficient cause.
Do I have to surrender before filing a criminal SLP against my conviction?
Where the petitioner has been sentenced to imprisonment, Order XXII Rule 5 requires the petition to state whether the petitioner has surrendered, with proof. If the petitioner has not surrendered, the Registry will not accept the petition unless it is accompanied by an application seeking exemption from surrendering.
Can I raise new grounds or documents in the SLP that were not before the High Court?
Ordinarily, no. The Supreme Court Rules confine the SLP to the pleadings and documents that were before the court or tribunal below. Additional facts, documents or grounds may be relied upon only with the permission of the Court.
If my SLP is dismissed, can I still file a review petition in the High Court?
Where the SLP is dismissed without grant of leave, the High Court's judgment does not merge into the Supreme Court's order, and a review petition before the High Court remains maintainable: Khoday Distilleries (2019), applying Kunhayammed (2000). Where leave has been granted and the appeal decided, the doctrine of merger applies and the High Court cannot review its judgment.
Does dismissal of an SLP mean the Supreme Court has approved the High Court's judgment?
No. A refusal of special leave means only that the Supreme Court declined to exercise its discretion. If the refusal order gives reasons, any law declared in it binds courts under Article 141, but the High Court's judgment does not merge into the Supreme Court's order.
What remedies remain after the Supreme Court decides a matter?
A review petition may be filed under Article 137 and Order XLVII of the Supreme Court Rules, 2013 within thirty days, on limited grounds, and it is ordinarily decided by circulation. A curative petition is available only in the narrow circumstances recognised in Rupa Ashok Hurra v. Ashok Hurra (2002), such as a violation of natural justice or an apprehension of bias, and requires a Senior Advocate's certificate.