The Doctrine of Merger in Indian Law: Scope, Limits and Judicial Interpretation
The Doctrine of Merger is a principle firmly entrenched in the Indian legal system, often invoked in appellate and review proceedings.
At its core, the doctrine governs the fate of a lower court’s order once an appeal or review is decided by a higher court.
But its application is not universal—it depends on the nature of jurisdiction exercised, the stage of proceedings, and the type of order passed by the superior court.
In this post, we explore the evolution, scope, and limits of the doctrine of merger with a special focus on the authoritative pronouncements in:
- Kunhayammed v. State of Kerala [(2000) 6 SCC 359],
- Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. [(2019) 4 SCC 376], and
- State of U.P. v. Virendra Bahadur Katheria [2024 INSC 524].
1. What Is the Doctrine of Merger?
The doctrine is best understood as a common law principle that governs appellate hierarchy and legal finality. It holds that:
“When a decree or order passed by an inferior court is subjected to a remedy before a superior forum, the former ceases to exist and merges with the latter.”
– Kunhayammed, para 12.
It ensures judicial discipline and clarity by confirming that there can be only one operative order governing a legal matter at a given time.
2. Foundational Case: Kunhayammed v. State of Kerala (2000)
This landmark decision laid down a detailed framework on when the doctrine of merger applies, especially in the context of Special Leave Petitions (SLPs) under Article 136 of the Constitution.
🔹 Key Principles from the Judgment:
- Nature of Article 136 jurisdiction: It is discretionary and comprises two stages—
- Stage 1: Whether to grant leave to appeal;
- Stage 2: If leave is granted, hearing the appeal.
- Dismissal of SLP at stage 1 (no leave granted):
- If the SLP is dismissed in limine (i.e., at threshold) without a speaking order, merger does not occur.
- Such a dismissal is not a declaration of law under Article 141, nor does it attract res judicata.
- The High Court judgment continues to hold the field.
- Dismissal of SLP after granting leave:
- Whether by affirming, modifying, or reversing the lower court’s order—even by a non-speaking order—merger applies.
- The Supreme Court’s order substitutes the High Court order.
“The doctrine of merger is not of universal or unlimited application. Its applicability depends on the nature of jurisdiction exercised by the superior forum and the subject matter of challenge.”
– Kunhayammed, para 12.
3. Speaking Orders Without Leave: Law Declared But No Merger
An interesting nuance was added in Kunhayammed:
- A reasoned (speaking) dismissal of an SLP without granting leave may declare the law under Article 141.
- But such a decision still does not attract merger, as appellate jurisdiction was never invoked.
“If the order of dismissal be supported by reasons… it would not attract the doctrine of merger because the jurisdiction exercised was not appellate but discretionary.”
– Kunhayammed, para 27.
4. Khoday Distilleries Case (2019): Reaffirming the Distinction
The Supreme Court in Khoday Distilleries Ltd. v. Mahadeshwara Sahakara SSK Ltd. tackled a core question:
Can a High Court entertain a review petition of its own order after the SLP against that order was dismissed by the Supreme Court?
🧭 Holding:
- If the SLP is dismissed without granting leave, merger does not take place, and review remains maintainable before the High Court.
- The Court criticized the earlier ruling in Abbai Maligai [(1998) 7 SCC 386], noting it departed from Kunhayammed without analysis.
“Dismissal of the special leave petition in limine by a non-speaking order does not amount to merger of the High Court judgment with that of the Supreme Court.”
– Khoday Distilleries, para 8.
The judgment clarified and reiterated that dismissal of SLP simpliciter (even with short reasons) does not wipe out the High Court’s decision.
5. State of U.P. v. Virendra Bahadur Katheria (2024): Application in Service Law
In this recent decision, the Supreme Court revisited the doctrine while adjudicating a service law dispute involving pay parity for education officers in Uttar Pradesh. The High Court had granted relief; the State filed an SLP which was dismissed.
⚖️ Observations:
- The Court highlighted that mere dismissal of SLP does not mean that the High Court judgment merges with the Supreme Court’s order unless leave is granted.
- Therefore, the review filed in the High Court was not barred, and the doctrine of merger did not apply.
The Court distinguished between affirmative appellate decisions (which override the lower order) and dismissals at the leave stage, which do not alter the status quo of the impugned judgment.
6. Why Does This Distinction Matter?
The practical implication is profound:
- A party can seek review or writ relief in the High Court even after SLP dismissal if leave was not granted.
- It also protects against res judicata by affirming that a non-speaking dismissal of SLP does not constitute a decision on the merits of the case.
7. Cases Cited and Approved
The following cases have been consistently cited to support or explain the doctrine:
- CIT v. Amritlal Bhogilal [AIR 1958 SC 868]
- Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat [(1969) 2 SCC 74]
- Sushil Kumar Sen v. State of Bihar [(1975) 1 SCC 774]
- Thungabhadra Industries v. Govt. of A.P. [AIR 1964 SC 1372]
- V.M. Salgaocar & Bros. v. CIT [(2000) 5 SCC 373]
- Rup Diamonds v. Union of India [(1989) 2 SCC 356]
8. Final Takeaways
✅ Doctrine of Merger applies only when appellate jurisdiction is exercised by the Supreme Court.
✅ Dismissal of SLP without granting leave—whether reasoned or unreasoned—does not lead to merger.
✅ Review petition before High Court remains maintainable unless leave is granted and the appeal is decided.
✅ Article 141 (binding declaration of law) applies only when some law is laid down, even if merger does not occur.
✅ The distinction between dismissal of SLP and dismissal of appeal is crucial for determining finality and future remedies.
Conclusion
The Doctrine of Merger serves a vital role in judicial clarity and finality but must be applied with a nuanced understanding of appellate processes.
Through landmark rulings—especially Kunhayammed, Khoday Distilleries, and Katheria—the Supreme Court has established a well-calibrated framework that distinguishes procedural dismissals from substantive affirmations.
This ensures that procedural technicalities do not override substantive rights or bar legitimate avenues of review.
For litigants and practitioners alike, understanding the precise contours of this doctrine is essential—especially when strategizing review petitions, fresh writs, or appeals.