Dismissal Of SLP Does Not Attract Doctrine Of Merger, Only Law Declared By SC Is Binding Under Article 141: J&K&L High Court

Clarifying the limits of the doctrine of merger, the Jammu and Kashmir and Ladakh High Court has held that even if an order dismissing a Special Leave Petition (SLP) is supported by reasons, the doctrine of merger would not be attracted.

However, a bench of Justice Sanjeev Kumar also made it clear that the reasons stated by the Supreme Court while dismissing an SLP may attract Article 141 of the Constitution if they amount to a declaration of law binding on all courts and tribunals across India.

For context, the doctrine of merger is a judicial principle which means that when a superior court decides an appeal or revision against an order passed by a lower court, the lower court's order “merges” into the order of the superior court and ceases to exist independently. The doctrine rests on the logic that once a higher court has adjudicated upon a matter, its decision alone remains operative and binding.

However, the doctrine does not automatically apply to every kind of order passed by a superior court,  especially when the higher court merely declines to entertain a matter, such as when the Supreme Court dismisses an SLP without granting leave to appeal. In such cases, there is no merger because the higher court has not exercised its appellate jurisdiction over the lower court's decision.

Background:

The case before the High Court arose from a petition wherein the petitioner contended that since the Supreme Court had dismissed an SLP arising from the same matter and that too by a reasoned order the original order under challenge had merged with the Supreme Court's dismissal order. The petitioner argued that this dismissal operated as a final declaration of law, binding on all courts.

On the other hand, the respondents maintained that the dismissal of an SLP, whether reasoned or not, does not constitute an exercise of appellate jurisdiction. Therefore, the doctrine of merger would not apply, and the underlying judgment of the lower court would continue to operate independently.

Observations Of The Court:

Adjudicating the matter, Justice Kumar embarked on a detailed discussion of the scope and applicability of the doctrine of merger in light of constitutional provisions and established precedents. The Court held that the Supreme Court's jurisdiction under Article 136 is discretionary in nature, and when it merely refuses to grant leave to appeal, it does not act in its appellate capacity. Therefore, no merger can occur between the order under challenge and the Supreme Court's order of dismissal, he explained.

“Even if the order of dismissal of an SLP is supported by reasons, the doctrine of merger would not be attracted,” the Court observed. It added, “However, the reasons stated by the Court would attract the applicability of Article 141 of the Constitution of India, if it is tantamount to a law declared by the Supreme Court. Such law laid down would be binding on all Courts and tribunals in India.”

The Court explained that the phraseology of the dismissal order, whether it uses expressions like “dismissed”, “dismissed on merits”, or “dismissed for lack of merit” is immaterial to the applicability of the merger. What matters is the nature of the jurisdiction exercised. Since the Supreme Court, while dismissing an SLP, does not substitute or affirm the order of the lower court through a detailed appellate process, the doctrine of merger cannot apply.

The court further clarified, “Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order … it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141.”

It added, “If the order of dismissal be supported by reasons, then also the doctrine of merger would not be attracted because the jurisdiction exercised was not appellate but merely discretionary.”

At the same time, Justice Kumar drew an important distinction between merger and binding legal effect under Article 141. While an SLP dismissal does not cause a merger, the reasons recorded in a speaking order may still bind all courts if they amount to a declaration of law by the Supreme Court.

“Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court, which obviously would be binding on all courts and tribunals in India,” the Court underscored.

The High Court also cautioned that statements made by the Supreme Court in such orders,  even if not declaratory of law,  must be respected by subordinate courts and parties on the principle of judicial discipline. The Court noted,

“No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by the Supreme Court.”

After analysing the facts and legal position, the High Court concluded that the dismissal of the SLP relied upon by the petitioner did not lead to merger. The order of the Supreme Court, though reasoned, did not contain any declaration of law under Article 141. Therefore, the petitioner's contention that the lower court's order stood substituted by the Supreme Court's dismissal order was without merit.

Case Title: Union Of India Vs MS D. Khosla & Ors

Citation: 2025 LiveLaw (JKL)

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