I. WHETHER THE SPECIAL LEAVE
PETITION BROUGHT BEFORE THIS COURT IS MAINTAINABLE

 

It
is humbly submitted that the Special Leave Petition against the judgment of
Hon’ble High Court is maintainable under Article 136 of the Constitution of
India. Article 136 empowers the Supreme Court to grant in discretion 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.1 It
is humbly submitted that powers under Article 136 can be exercised against any
kind of judgement or order which is causing injustice to any party, and to
serve the need, the power under Article 136 is unfettered.2This
SLP is maintainable as, firstly the petitioner has locus standi to approach the
Honourable Supreme Court A, secondly the matter involves question of general
public importance involving a substantial question of lawB,thirdly that the appellant has suffered grave
injustice.

A. THE PETITIONER HAS LOCUS STANDI
TO APPROACH THE HONOURABLE SUPREME COURT

It
is humbly submitted before this Honourable SC that the appellant has locus
standi to approach the Honourable SC in the present case. Article 136 of the
Constitution is couched in the widest phraseology.3This
Court’s jurisdiction is limited only by its discretion.4 It
is pertinent to note that the scope of Article 133 providing appeals to the SC
in civil matters is limited whereas Article 136 is very broad-based &
confers discretion on the court to hear “in any cause or matter”.5
The plenitude of power under Article 136 of the Constitution has been
authoritatively stated by the Constitution Bench in Durga Shankar Mehta v.
Thakur Raghuraj Singh and Ors6 and
the exercise of the said power by the Court cannot be curtailed by the original
constitutional provision or by any statutory provision.7 Therefore,
civil appeals may be brought to the SC under article 136 when these are not
covered by Article 133.8

B. JURISDICTION OF SUPREME COURT
UNDER ARTICLE 136 CAN ALWAYS BE INVOKED WHEN A QUESTION OF LAW OF GENERAL
PUBLIC IMPORTANCE ARISES.

The
jurisdiction conferred under Art. 136 on the SC are corrective one and not a
restrictive one.9
A duty is enjoined upon the SC to exercise its power by setting right the
illegality in the judgments is well-settled that illegality must not be allowed
to be perpetrated and failure by the SC to interfere with the same would amount
to allowing the illegality to be perpetuated2 .It has been held in plethora of
cases that when the question of law of general public importance arises, the
jurisdiction of SC can be invoked by filing special leave petition. In the
present case, the issue involves matter of General Public Importance 1 and
substantial question of law 2.

1. The Matter Involves Question Of
Law Of General Public Importance And Hence, Entitled To Be Maintainable.

It
has been held by this Hon’ble Court that when a question of law of general
public importance arises, or a decision shocks the conscience of the court, its
jurisdiction can always be invoked. Article 136 is the residuary power of SC to
do justice where the court is satisfied that there is injustice.10The
principle is that this court would never do injustice nor allow injustice being
perpetrated for the sake of upholding technicalities.11In
any case, special leave would be granted from a second appellant decision only
where the judgment raises issue of law of general public importance.12

In
the case at hand, rights of individuals are in question. Also, the implementation of Uniform Civil Code will have an impact on
public at large. Hence, the matter concerned is a matter of public interest
and national importance the same was reiterated by the High court. Hence, it is
humbly submitted before this court that the matters involves question of law of
general public importance and therefore, the appeal is maintainable under
article 136 of the Constitution of India.

2. The Matter Involves Substantial
Question Of Law And Hence Entitled To Be Maintainable.

Where
findings are entered without considering relevant materials and without
following proper legal procedure, the interference of the Supreme Court is
called for.13The
expression “substantial question of law” is not defined in any
legislation. Nevertheless, it has acquired a definite connotation through
various judicial pronouncements. A Constitution Bench of the Apex Court, while
explaining the import of the said expression, observed that: “The 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.”14
In the present case, the question of law involved in appeal is regarding the
validity of Section 4A of Dharmasthan Freedom of Religion Act, the rights of
convetered individuals . The questions raised by the Appellants involve
substantial questions of law, as would be shown in the subsequent submissions,
and the same requires to be adjudicated by this Hon’ble Court.

Hence,
the case involves the matter of general public importance and it directly and
substantially affects the rights of the parties as the order is erroneous and
prejudicial to the interest of the petitioners. It is humbly submitted that
substantial and grave injustice has been done to the rights of the petitioner
and that the case in question presents features of sufficient gravity to
warrant a review of the decision appealed against.

That the appellant has suffered
grave injustice.

It
is the humble submission of the appellant that the judgment rendered by the
Hon’ble High Court inflicts grave injustice upon the appellant. The Hon’ble
Supreme Court has repeatedly held that leave will be granted where there is
grave, blatant and atrocious miscarriage of justice.15

This
Apex institution of justice has categorically held that to preclude a person
from the grievance redressal system and to disallow any effort to approach the
court for enforcement of rights and dispute resolution will be the gravest
travesty of justice and will take away all credibility from the justice system.

The
appellant humbly submits that such grave injustice warrants the exercise of
power by the Hon’ble Supreme Court under Article 136. Couched in the words of
the eminent constitutional law jurist, D.D. Basu, “Its Article 136
limit, when it chases injustice, is the sky.”16
In Esher Singh v. State of A.P. said that when the judgment of the high court
has led to serious miscarriage of justice, the Supreme Court may not refrain
from doing its duty and abstain from interfering.17

The
classic case of Ashby v. White18had
laid down what is now a well-known principle of law, that ‘where there is a
right there is a remedy’. This doctrine is deeply ingrained in the Indian
Constitutional scheme also.’ Highlighting the importance of the doctrine, the
Apex Court in Bhagwati Developers v. The Peerless’ observed, “If a man has
a right he must have the means to vindicate and maintain it.

 

1 Art. 136, Constitution of India,
1950.

2 Durga Shankar Mehta v. Thakur Raghuraj
Singh and Ors. AIR 1954 SC 520; Associated Cement Companies Ltd v. P.N. Sharma
(1965) 2 SCR 366; Jose Da Costa and Anr. v. Bascora Sadasiva Sinai Narcornim
and Ors. (1976) 2 SCC 917; Arunachalam v. P.S.R. Sadhanantham and Anr. (1979)
(2) SCC 297; P.S.R. Sadhanantham v. Arunachalam and Anr. (1980) 3 SCC 141;
Union Carbide Corporation and Ors. v. Union of India and Ors. (1991) 4 SCC 584.

3 Nihal Singh & Ors v. State
Of Punjab, AIR 1965 SC 26

4 Ibid

5 Pritam Singh v. State, AIR 1950
SC 169.

6 AIR 1954 SC 520

7 State of Karnataka v. State of
Tamil Nadu and Ors., Civil Appeal No. 2453 of 2007 decided on December 9, 2016.

8 Barsay v. Bombay AIR 1961 SC
1762; Banwari Lal v. Trilok Chand, AIR 1980 SC 419; Digvijay Singh v. Pratap
Kumari, AIR 1970 SC 137; Chettiar v. Chettiar, AIR 1968 SC 915.

9 Haryana State Industrial
Corporation. v. Cork Mfg. Co. (2007) 8 SCC 359

10 C.C.E v. Standard Motor
Products, AIR1989 SC 1298; N Suriyakala v. A Mohan Doss & ors. (2007) 9 SCC
196; Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036.

11 Janshed Hormusji Wadia v. Board
of Trustees, Port of Mumbai (2004) 3 SCC 214

12 Balakrishna v. Rmaswami, AIR
1965 SC 195.

13 Dale & Carrington Investment
Ltd. v. P.K. Prathapan (2005) 1 SCC 212.

14 Sir Chunilal Mehta and Sons.
Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314.

15
Bihar Legal Support Society v. ChicfJusticc of India, AIR 1987 SC 38, ace also
State of Assam v. Barge Dcwani

(1970) 3 SCC 236.

16 Basu.D.D.,
page 5754 Volume 5; LexisNexis Butterworths Wadhwa, Edition 8, 2009.

17 Esher
Singh v. State of A.P., AIR 2004 SC 3030; see also Durga Shenker v. Raghuraj,
AIR 1954 SC 520; Arunachalam v. Sethuratnam, AIR 1979 SC 1284

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