Doctrine of Merger

Author: Nandinee Singh, Amity Law School, Noida


The common law doctrine of merger is based on the decorum and appropriateness of the judicial system. The doctrine is neither statutorily recognized nor it is mentioned in the constitution. The main objective behind this law is maintaining the respectability and decorum of the hierarchy of courts. The doctrine means that more than one operative order cannot govern a particular subject matter at the same time.

This doctrine is applicable whenever a decision is first made by the subordinate court on a matter and then the right to appeal is exercised in front of the superior court because of which there is a modification, reversal, or affirmation in the decision that was made by the subordinate court. This becomes capable of being enforced because the decision of the subordinate court which was made earlier than the appeal or revision merges with the decision of the superior court.

A special Leave petition is a petition filed for an appeal. Here the aggrieved party asks for permission to appeal against a judgment that has been given by a subordinate court or tribunal in India from the supreme court[1]. The supreme court has a right to either accept or dismiss the petition.

The right of review is inter-linked with the Doctrine of merger. Whenever the special leave is granted then the decisions merge of both the High court and the Supreme court.  When the appeal is dismissed by the supreme court and there is no merger of the judgment then there is no impoverishment of the right to review of the party. If any such provision is available, then he/ she can use it. The laws and principles applicable to interference in the review decide when and how the reviewing court can interfere in any subject matter.


Special leaves and the doctrine of merger have a very extraordinary nature due to which an ample amount of time has been spent on these topics so that they can be made judicially applicable. Article 136 of the Indian constitution plays an important role in understanding these topics.

Article 136 of Indian Constitution[2]:

It states that the supreme court has the power in which it can grant any special leave to appeal for a judgment that has been passed by the subordinate courts or tribunals. The scope for invocation of the appellate jurisdiction of the supreme court is broadened by this article. Exercising these powers which are so extraordinary are up to the decision and will of the supreme court.

In this process firstly the satisfaction of the supreme court is required. The person who has filled the petition has the responsibility to prove to the SC that it can exercise its appellate powers as the case is perfect for it. After this point, the supreme court might grant the leave and hear the appeal, or it might dismiss it as well.

A lot of times the special leaves have been dismissed even before looking into the facts and merits.  Regarding the applicability, of the doctrine there a huge amount of uncertainty.

 It has been held by the supreme court that even if the special leave is dismissed with a non-speaking order it does not mean that there has been approval given by the apex court regarding the judgment against which the petition was made.

V.M. Salgaocar & Bros. (P) Ltd. v. CIT[3]:

In this case the supreme court there is no opinion expressed by the court while dismissing the special appeal regarding the judgment on which the appeal was made.

  1. Kunhayammed and Ors. vs. State of Kerala and Anr. [4]

The conclusions from this judgment are mentioned below:

  1.  The decision made by the subordinate court merges with the modifications or affirmations made by the superior court in that decision because of the appeal provided for that judgment. There is then a substitution of later which is then applicable in the eye of law.
  2. There are two stages of the jurisdiction which are mentioned under Article 136 of the constitution. Applying for special leave and the satisfaction of SC is the first stage. Whether the leave is granted is part of the second stage.
  3. There is no ultimate application of the doctrine. The application of the doctrine depends upon the nature of the powers used by the superior court and the facts and objects regarding the subject which led to the appeal.
  4. Whenever the special leave is refused or dismissed by the superior court then the order can be a speaking one or a non-speaking one. Dismissing a special leave only means that the court is not satisfied in hearing the appeal and has no relation with the judgment for which the appeals were made.
  5. When a special leave is rejected then there is no merger between the superior and the subordinate court. If the court gives and explains the reason for the rejection of the appeal that is the order is a speaking one, then there are two consequences. The order contains the statements by the supreme court which comes under Article 141 of the Indian Constitution.

Article 141 of The Indian Constitution: [5]

This article states that whatever order has been given by the Supreme Court it binds all the courts that come under the Indian territory.

Both parties including the courts will be bound to the order that the Supreme court gave which has the facts and information that are recorded by the supreme court.

  • The doctrine of merger is attracted by the order after the appeal is granted and the supreme court has used its powers under the appellate jurisdiction.
  • The high court loses its power to look after a review petition when leave for appeal is converted into an appeal before the supreme court.

Reasons behind the inapplicability are mentioned below:

  • There are a lot of circumstances when the doctrine cannot be applied due to various reasons.
  • When there is a narrow scope of revision as compared to the original proceedings.
  • Whenever the powers are limited of the court which is proceeding with the matter for appeal.
  • Whenever fraudulent means are used to secure the order then the doctrine cannot be applied.

Cases related to these principles:

State of Madras v. Madurai Mills Co. Ltd[6] :

In this case, the supreme court held that the doctrine is not at all rigid. It is not said by the court that there is always a merger between the decisions of the subordinate court and the superior court. The nature of the order and the scope of the laws determine the applicability of the doctrine.

A.V. Papayya Sastry v. Govt. of A.P. [7]:

In this case, the court brought down an exception for this doctrine. It was held that whenever there are fraudulent methods used then the order becomes illegal and could not be stated valid. This type of order is not at all allowed to stand before the court.


This common law doctrine helps in managing and maintaining respect in the hierarchy of courts. Universal application of this doctrine is not possible. The nature of statutory laws and jurisdictions is very important. The order of the revisional court is final and this has been specified and highlighted by this doctrine. The chaos of deciding which of the court’s orders are to be considered final has been solved and removed by the doctrine and the void has been filled.


[2] The Indian Constitution, 1975, A 136.

[3] V.M. Salgaocar And Bros. Pvt. Ltd. … vs Commissioner Of Income Tax Etc on 10 April, 2000

[4] Kunhayammed & Ors vs State Of Kerala & Anr on 19 July, 2000

[5] The Indian Constitution, 1975, A 141.

[6] 1967 AIR 681, 1967 SCR (1) 732

[7] A.V. Papayya Sastry & Ors vs Government Of A.P. & Ors on 7 March, 2007