India has a unified Judicial System with the Supreme Court standing at the apex. There are High Courts below the Supreme Court, under each High Court there exist a system of subordinate courts. The Supreme Court thus enjoys the topmost position in the judicial hierarchy of the country. It is the Supreme interpreter of the Constitution and the guardian of the people's Fundamental Rights. It is the ultimate court of appeal in all civil and criminal matters and the final interpreter of the law of the land, and thus helps in maintaining a uniformity of law throughout the country.
Judiciary has also the significant function of protecting and enforcing the Fundamental Rights of the people guaranteed by the Constitution.
Union of India v. Sankalchand Himatlal Sheth, MANU/SC/0065/1977 : AIR 1977 SC 2328: 1978 (7) SCJ 265: 1978 Serv LJ 314: (1978) 1 SCR 423. The Supreme Court observed that the Supreme Court is a watching tower above all the big structure of the other limbs of the State from which it keeps a watch like a sentinel on the functions of the other limbs of the State as to whether they are working in accordance with the law and the constitution, the constitution being Supreme.
(1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.
(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:
Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:
Provided further that-
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office in the manner provided in clause (4).
(2A) The age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide.
(3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and-
(a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
(b) has been for at least ten years an advocate of a High Court or of two or more such courts in succession; or
(c) is, in the opinion of the President, a distinguished jurist.
Explanation I.-In this clause "High Court means a High Court which exercise, or which at any time before the commencement of this Constitution exercised, jurisdiction in any party of the territory of India.
Explanation II.-In computing for the purpose of this clause the period during which a person has been an advocate, any period during which a person has held judicial office not inferior to that of a district Judge after he became an advocate shall be included.
(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of the House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
(5) Parliament may bey law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4).
(6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.
(7) No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.
Clause (1) provides for the establishment of a Supreme Court of India. The court consists of Chief Justice and other judges as prescribed by the Parliament. The Chief Justice of the Court is designated as the Chief Justice of India. Parliament has now increased the number of other Judges to 30.
Subhash Sharma v. Union of India, MANU/SC/0643/1990 : AIR 1991 SC 631: 1991 AIR SCW 128: 1991 (2) Civ LJ 532: JT 1990 (4) SC 245: (1991) Supp 1 SCC 574. The Court has held that the number of judges should be commensurate to the amount of work, otherwise the judiciary cannot perform its constitutional obligation. There is no minimum number of judges prescribed, but clause (3) of article 145 lays down that no case involving a substantial question of law as to the interpretation of the Constitution or a reference under article 143 shall be decided by less than five judges.
Union of India v. S.P. Anand, MANU/SC/0493/1998 : AIR 1998 SC 2615: 1998 AIR SCW 2656: JT 1998 (5) SC 359: MANU/SC/0493/1998 : (1998) 6 SCC 466: (1998) 3 SCR 1046: 1999 (1) SRJ 110: (1998) 4 SCALE 433: 1998 (6) Supreme 309: (1998) 2 UJ (SC) 483: 1999 Writ LR 1. The Supreme Court sits at Delhi under article 130. The Supreme Court stated that it is an enabling provision and does not cast a mandatory obligation on the Chief Justice of India to appoint any place other than Delhi as the seat of the Supreme Court.
Article 124(2) provides that every Judge of the Supreme Court shall be appointed by the President under his hand and seal after consultation with such of the Judges of the Supreme Court and of High Courts in the States as the President may deem necessary.
Union of India, Appellant v. Sankalchand Himatlal Sheth, MANU/SC/0065/1977 : AIR 1977 SC 2328: 1978 (7) SCJ 265: 1978 Serv LJ 314: (1978) 1 SCR 423. It was held that the word 'consultation' means full and effective consultation. For a full and effective consultation it is necessary that the three constitutional functionaries must have their consideration on identical facts on the basis of which they would be able to take a decision. The President, however, has a right to differ from them and take a contrary view. Consultation does not mean concurrence and the President is not bound by it.
S.P. Gupta v. President of India, MANU/SC/0080/1981 : AIR 1982 SC 149: 1982 Rajdhani LR 389: 1981 Supp SCC 87. (Popularly known as Judges, Transfer case). The Supreme Court by majority expressed the view that all the constitutional functionaries involved in appointment are on the same pedestal so far as consultation is concerned. Consultation cannot be equated with concurrence.
The Supreme Court has also held once that the independence of the judiciary is a basic feature of the Constitution and any attempt to curtail it directly or indirectly even by an amendment of the Constiution is invalid.
Supreme Court Advocates-on-Record Association v. Union of India, MANU/SC/0073/1994 : AIR 1994 SC 268: 1993 AIR SCW 4101: JT 1993 (5) SC 479: MANU/SC/0073/1994 : (1993) 4 SCC 441: (1993) 5 Serv LR 337. (Judges Transfer case II). The Court has laid down detailed guidelines governing appointment and transfer of judges and held that great significance should be attached to the view of the Chief Justice of India formed after taking into account the views of two senior-most judges of the Supreme Court. It thus has reduced to the minimum individual discretion conferred upon the Prime Minister and the Chief Justice of India so as to ensure that neither political bias nor personal favouritism nor animosity should play and part in the appointment of Judges of the Supreme Court and High Courts.
The Constitution expressly requires him to consult such of the Judges of the Supreme Court, and of the High Courts as he may deem necessary. It also requires him to always consult the Chief Justice of India in the appointment of a judge other than the Chief Justice of India.
In re Presidential Reference, MANU/SC/1146/1998 : AIR 1999 SC 1: 1998 AIR SCW 3400: JT 1998 (7) SC 304: MANU/SC/1146/1998 : (1998) 7 SCC 739: 1998 (4) SCJ 200: (1998) 5 SCALE 629: 1998 (8) Supreme 140. In this case the Supreme Court delivered an advisory opinion on a reference made by the President under article 143. In its opinion, the Court has laid down the following propositions in regard to the appointment of Supreme Court Judges:
(1) In making his recommendation for appointment to the Supreme Court the Chief Justice of India ought to consult four senior-most puisne judges of the Supreme Court. Thus, the collegium to make recommendation for appointment should consist of the Chief Justice and senior-most puisne judge.
(2) The opinion of all members of the collegiums in respect of each recommendation should be in writing.
(3) The views of the senior-most Supreme Court Judge who hails from the High Court from where the person recommended comes must be obtained in writing for the consideration of the collegiums.
(4) If the majority of the collegium is against the appointment of a particular person, that person shall not be appointed.
(5) A High Court Judge of outstanding merit can be appointed as a Supreme Court Judge regardless of his standing in the seniority list.
(6) A High Court Judge may be appointed as a Supreme Court Judge for good reasons from amongst several judges of equal merit, the particular region of the country.
Clause (3) lays down the qualification of a Judge of the Supreme Court. He must have been for at least five years a judge of High Court in India or an advocate of ten years standing or must be, in opinion of the President, a distinguished jurist. This would enable the Supreme Court to get the benefit of the talents of distinguished non-practicing lawyers. While it may be debatable if an academic person in suited to decide ordinary civil or criminal cases, there is little doubt that he is eminently suited to decide cases involving points of Constitutional Law. To ensure independence and complement of the Judiciary great emphasis has been laid on the merit of the person to be appointed as judge.
Removal of Judges: Impeachment under Article 124(4) and (5).-
Clauses (4) and (5) of article 124 deal with the procedure for removal of Supreme Court Judges. The same procedure applies to High Court Judges. Clause (4) of article 124 provides that a Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity. The constitutional provision does not prescribe how this investigation is to be carried on. It leaves it to Parliament to settle and lay down by law the detailed procedure according to which the address may be presented and the charge of misconduct or incapacity against the Judge investigated and proved. In America, the Judges of Supreme Court hold office for life. They can, however, be removed by impeachment in cases of treason, bribery on other high crimes and misdemeanour.
K. Veeraswami v. Union of India, (1991) 3 SCC 855: 1991 SCC (Cri) 734. A five Judges Bench of the Supreme Court held that a Judge of the Supreme Court and High Court can be prosecuted and convicted for criminal misconduct.
The word 'proved' in this provision indicates that the address can be presented by Parliament only after the alleged charge of misbehaviour or incapacity against the Judge has been investigated, substantiated and established by an impartial tribunal. The constitutional provision does not prescribe how this investigation is to be carried on.
In accordance with the above provision, Parliament has enacted the necessary law for the purpose. The Judges (Inquiry) Act, 1968 now regulate the procedure for investigation and proof of misbehaviour or incapacity of a Supreme Court judge for presenting an address by the Houses of Parliament to the President for his removal.
Clause (6) requires every person appointed to be a Judge of the Supreme Court before he enters upon his office, to make and subscribe before the President, or some person appointed in that behalf by him an oath or affairmation according to Third Schedule.
Clause (7) deprives a person who has held the office of a Judge of the Supreme Court of the liberty to plead or act in any court or before any authority within the territory of India.
Salary.-The salary payable to Supreme Court Judge was specified in the Constitution [article 125(1)] and the Second Schedule. But then by the Fifty-fourth Constitutional Amendment, Parliament has been given power to determine the salary payable to a Supreme Court Judge by law.
Parliament is also authorised to determine, from time-to-time by law such questions as the privileges, allowances, rights in respect of leave of absence and pension for these judges. None of these can, however, be varied by Parliament to the disadvantage of a judge after his appointment to the court [article 125(2) and the proviso]. All these matters are now regulated by the Supreme Court Judges (Salaries and Conditions of Service) Act, 1958.
Acting Chief Justice.-
The President can appoint a Supreme Court Judge as the acting Chief Justice in case the office falls vacant, or the Chief Justice is unable to perform his duties due to absence or otherwise (article 126).
Ad hoc-Judge.-
The Chief Justice may call a Judge of a High Court to act as an ad hoc Judge of the Supreme Court, for such period as may be necessary, if the quorum of the Supreme Court Judges is insufficient to hold or continue a session of the court. The judge so appointed should be qualified to act as a Supreme Court Judge.
Before making such an appointment the Chief Justice of India has to consult the Chief Justice of the High Court concerned and also obtain the prior consent of the President [article 127(1)]. It is the duty of the High Court Judge so appointed, in priority to other duties of his office, to attend the sitting of the Supreme Court at such time and for such period for which his attendance is required there. While so attending the Supreme Court, an ad hoc Judge enjoys all the jurisdiction, power and privileges of, and discharge all such duties like, any other Supreme Court Judges [article 127(2)].
This article enables the retired Judge of the Supreme Court, the federal court and the High Court to sit and act as Judges of the Supreme Court when, so requested by the Chief Justice. It will be necessary for the Chief Justice to obtain the previous consent of the President before insisting any such person to act as Judge of the Supreme Court, but there can be no compulsion on the retired judges to accept the invitation.
The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.
Wharton Law Lexicon.-
The following definition is given:
"Courts are either of record when their acts and judicial proceedings are enrolled for a perpetual memorial and testimony and they have power to fine and imprison, or not of record being courts of inferior dignity, and in a less proper sense the king's courts - and these are not entrusted by law with any power to fine or imprison the subject of the realm, unless by the express provision of some Act of Parliament Their proceedings are not enrolled or recorded.
Naresh Shridhar Mirajkar v. State of Maharashtra, MANU/SC/0044/1966 : AIR 1967 SC 1: (1966) 2 SCA 363: (1966) 3 SCR 744. Supreme Court has asserted that in the absence of any express provision in the Constitution the Apex Court being a court of record has jurisdiction in every matter and if there be any doubts, the court has power to determine its jurisdiction.
Om Prakash Jaiswal v. D.K. Mittal, MANU/SC/0118/2000 : AIR 2000 SC 1136: 2000 Cr LJ 1700: 2000 AIR SCW 722: JT 2000 (2) SC 293: (2000) 3 SCC 171: 2000 (1) SCJ 581: (2000) 2 SCALE 28: 2000 (1) Supreme 574: 2000 (1) UJ (SC) 524. Availability of an independent judiciary and an atmosphere wherein Judges may act independently and fearlessly in the source of existence of civilization in society the writ issued by the court must be obeyed. It is the binding efficacy attaching with the commands of the court and the respect for the orders of the court which deter the aggrieved persons from taking the law in their own hands because they are assured of an efficacious civilized method of settlement of dispute.
Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat, MANU/SC/0478/1991 : AIR 1991 SC 2176: 1991 Cr LJ 3086: 1991 AIR SCW 2419: 1991 (3) Crimes 232: JT 1991 (3) SC 617: (1991) 4 SCC 406: (1991) 3 SCR 936. The Supreme Court has held that its power to contempt in article 129 is not confined to its own contempt. It extend to all courts and tribunals subordinate to it in the country.
D.C. Saxena v. Chief Justice of India. MANU/SC/0627/1996 : (1996) 5 SCC 216: 1996 Cr LJ 3274: 1996 AIR SCW 3082: JT 1996 (6) SC 529: MANU/SC/0627/1996 : (1996) 5 SCC 216. The fundamental right to freedom of speech and expression under article 19(1)(a) may sometimes be raised as a defence against contempt of court. But apart from the fact that every speech is not protected by article 19(1)(a) and fair and objective criticism of courts does not amount to contempt of court, article 19(2) makes an exception in favour of contempt of court.
Supreme Court Bar Association v. Union of India, MANU/SC/0291/1998 : (1998) 4 SCC 409: AIR 1998 SC 1895: 1998 AIR SCW 1706: 1998 (2) SCJ 629: (1998) 2 SCR 795: 1998 (4) Supreme 251. It was held that though contempt of court was a serious misconduct on the part of a lawyer for which he could be deprived of his license to practice before the courts, he could be so deprived only by the Bar Council in view of clear provisions to that effect in the Advocates Act and rules made under it.
The Supreme Court shall sit in Delhi, or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time-to-time, appoint.
Articles 32, 131 to 139A and 143 deal with the jurisdiction of the Supreme Court. Articles 32, 131 to 136 and 143 define various types of jurisdiction which may for the sake of convenience be classified as follows:-
Original Appellate Advisory (Article 143)
Writ Exclusive
Jurisdiction Jurisdiction
Interpretation of Civil Criminal Federal SLP
the Constitution Matters Matters Court's (article 136)
(Article 132) (133) (134) Jurisdiction
not caused by
articles (131-135)
Article 131.-
Subject to the provisions of this constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute-
(a) between the Government of India and one or more States, or
(b) between the Government of India and any State or States on one side and one or more other States on the other, or
(c) between the two or more States.
if and insofar as the dispute involve any question (whether or law or fact) on which the existence or extent of a legal right depends:
Provided that the said jurisdiction shall not extend its a dispute arising out of treaty, agreement, covenant, engagement, sanad on other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.
State of Bihar v. Union of India, MANU/SC/0062/1969 : AIR 1970 SC 1446: (1970) 2 SCR 522: 1970 (2) SCJ 717. The Supreme Court observed that the express words of clauses (a), (b) and (c) of article 131 exclude the idea of a private citizen, a firm or a corporation fighting as a disputant either alone or even along with a State or with Government of India in the category of a party to the dispute.
State of Karnataka v. Union of India, 1978 (2) SCJ 190: MANU/SC/0144/1977 : AIR 1978 SC 68: (1977) 4 SCC 608: (1978) 2 SCR 1. The Supreme Court had the occasion to consider the nature, scope and applicability of article 131 on the question of whether any legal right of the State is involved when the Central Government notified the appointment of a commission of inquiry on charges of corruption etc., against the Chief Minister and other Ministers of the State, and whether the suit brought by the State Government was maintainable.
M/s Tashi Delek Gaming Solutions Ltd. v. State of Karnataka, MANU/SC/2391/2005 : AIR 2006 SC 661: 2005 AIR SCW 6477: JT 2005 (10) SC 458: MANU/SC/2391/2005 : (2006) 1 SCC 442: 2006 (1) SCJ 399: (2005) 10 SCALE 104: 2006 (8) Supreme 770. The enlarged definition of "State" in article 12 does not apply under article 131. Even statutory corporations are not State under article 131.
Article 32 confers original jurisdiction on the Supreme Court to enforce Fundamental Rights. Under article 32 every citizen has a right to move the Supreme Court by appropriation proceedings for the enforcement of the Fundamental Rights. The Supreme Court is given power to issue directions or orders or writs including writes in nature of Habeas Corpus, Mandamus, prohibition and certiorari whichever be appropriate.
(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under article 134A that the case involves a substantial question of law as to the interpretation of this Constitution.
(3) Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided.
Explanation.-For the purposes of this article, the expression "final order" includes an order deciding an issue which, if decided in favour of the appellant, would be sufficient for the final disposal of the case.
This article symbolisis the Supreme Court as the final court of constitutional interpretation. Question of constitutional interpretation are thus placed in a special category irrespective of the nature of the proceeding in which they arise. Such question can always be taken in appeal to the Supreme Court so that this court may have the last say.
State of Jammu and Kashmir v. Thakur Ganga Singh, MANU/SC/0011/1959 : AIR 1960 SC 356: (1960) 2 SCR 346: (1960) 1 Mad LJ (SC) 67: 1960 SCJ 231. The principle underlying the article is that final authority of interpretating the Constitution must rest with the Supreme Court. With that object the article is freed from other limitations imposed under articles 133 and 134 and the right of the wildest amplitude is allowed irrespective of the nature of the proceedings in a case involving only a substantial question of law as to the interpretation of the Constitution.
An appeal lies to the Supreme Court after a High Court grants a certificate. Such certificate can be granted if the following conditions are fulfilled-
(1) An appeal lies only from any judgement, decree or final order of a High Court. No appeal lies from an interim order of a High Court.
State of Orissa v. Madan Gopal Rungta, MANU/SC/0012/1951 : AIR 1952 SC 12: (1951) 2 Mad LJ 645: 1951 SCJ 764: MANU/SC/0012/1951 : 1952 SCR 28. The Supreme Court treated the High Court order as final as it finally disposed of the writ petition and the fact that the order was to operate for a limited duration would not make it other than a final order for the purpose of appeal under article 132 against such order.
(2) Article 132(1) uses the expression 'civil' criminal or other proceeding. The purpose of referring to other proceedings is to emphasize that adjudicating made in proceedings which cannot be included in the description of civil or criminal would still fall under article 132(1) in case they raise a substantial question of law as to the interpretation of the Constitution.
Ramesh v. Gendalal Motilal Patni, MANU/SC/0039/1966 : AIR 1966 SC 1445: 1966 (2) SCJ 152: (1966) 2 SCA 83: 1966 (2) SCJ 762: (1966) 2 SCWR 682: (1966) 3 SCR 198. Article 132 excludes no decision if it involves a substantial question of constitutional interpretation provided that the decision may be characterized as a judgment, decree or final order.
(3) The case ought to involve a question of law as to interpretation of the Constitution. It means that decision on the question of constitutional law should be necessary for the proper decision of the case.
(4) The question involved must be a "substantial question". A question is not substantial when the law on the subject has been finally and authoritatively settled by the Supreme Court, and what remains to be done by the High Court is only to apply that interpretation to the facts before it.
(1) An appeal shall lie to the Supreme Court from any judgment decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies under Article 134A-
(a) that the case involves a substantial question of law of general importance; and
(b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.
(2) Notwithstanding anything in article 132, any party appealing to the Supreme Court under clause (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided.
(3) Notwithstanding anything is this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of the one Judge of a High Court.
Dhananjay Shanker Shetty v. State of Maharashtra, MANU/SC/0620/2002 : AIR 2002 SC 2787: 2002 Cr LJ 3729: 2002 AIR SCW 3155: 2002 (3) Crimes 59: JT 2002 (5) SC 559: (2002) 6 SCC 596: (2002) 5 SCALE 387: 2002 SCC (Cri) 1444: 2002 (5) Supreme 148: 2002 (2) UJ (SC) 1176. Accused was alleged to have been seen by the police constable on patrolling duty. According to prosecution he was running away along with others with weapons shouting that he had killed the deceased. The constable informed the police station immediately, but in station diary his name was not mentioned. Later on, he was arrested. He was found injured and medical examination was done. During investigation two other persons were arrested. The Sessions Judge convicted the accused Dhananjay Shankar under section 302 read with section 34 of the Indian Penal Code but acquitted the two. On appeal, the High Court confirmed his conviction.
The Supreme Court acquitted him for the following discrepancies-
(1) No explanation was given for not mentioning his name in the station diary.
(2) Accused was arrested in injured condition but his injuries were not explained.
(3) As accused was a named accused, the test identification parade was meaningless.
(4) Bloodstained clothes found with the accused were examined but blood group did not tally with that of the deceased.
(5) There was no allegation or evidence of motive to commit the crime.
Mahadeo Sahni v. State of Bihar, MANU/SC/0671/2002 : AIR 2002 SC 3032: 2002 Cr LJ 4065: 2002 AIR SCW 3381: 2002 (3) Crimes 187: JT 2002 (6) SC 87: (2002) 6 SCC 656: (2002) 5 SCALE 577: 2002 SCC (Cri) 1453: 2002 (5) Supreme 413. The Supreme Court held that only in case of miscarriage of justice and perversity the Apex Court can re-appropriate the evidence so that technically should not outweigh the course of justice and in the instant case refused to interfere.
Civil proceedings.-
The expression 'civil proceedings' means proceedings in which a party asserts the existence of a civil right. A civil proceeding is one in which a person seeks to remedy by an appropriate process the alleged infringement of his civil right against another person or the state and which, if the claim is proved, would result in the declaration express or implied, of the right claimed and relief, such as payment of debt, damage, compensation, etc.
If the order of the court is directed against a proceeding which is criminal in character, i.e., if the proceeding is carried to a conclusion which may end in imprisonment for an offence, then the proceeding in the High Court must be taken to be a criminal proceeding.
Management of Hindustan Commercial Bank Ltd., Kanpur v. Bhagwan Dass, MANU/SC/0213/1964 : AIR 1965 SC 1142: (1965) 2 SCR 265: 1965 (I) LLJ 466. No appeal shall lie to the Supreme Court from the judgment, decree or final order of a single Judge of a High Court. This prohibition may, however be, removed by a law made by Parliament under this article. Such a law will not be an amendment of the Constitution.
(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court-
(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or
(b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or
(c) certifies under article 134A that the case is a fit one for appeal to the Supreme Court.
Provided that an appeal under sub-clause (c) shall lie subject to such provisions as may be made in that behalf under clause (1) of article 145 and to such conditions as the High Court may establish or require.
(2) Parliament may by law confer on the Supreme Court any further powers to entartain and hear appeals from any judgment, final order, or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law.
Article 134 confers a limited criminal appellate jurisdiction on the Supreme Court. The Supreme Court hears appeals only in exceptional criminal cases where justice demands interference by the Apex Court. It was necessary to restrict the flow of criminal appeals to the Supreme Court otherwise a large number of such appeals would have made it physically impossible for the court to cope with them.
Tarachand Damu Sutar v. State of Maharashtra, MANU/SC/0132/1961 : AIR 1962 SC 130: (1962) 1 Cr LJ 196: (1962) 2 SCR 775: 1963 (2) SCJ 17. The accused was charged for murder under section 302, IPC. The Trial Court convicted him under section 304, IPC instead of section 302. On appeal, the High Court reversed the order of the Trial Court and convicted under section 302, IPC and sentenced him to death. The Supreme Court held that the accused was entitled to appeal under article 134(1)(a) as the word 'acquittal' therein does not mean complete acquittal.
State of Bihar v. Bhagirath Sharma, MANU/SC/0067/1973 : AIR 1973 SC 2198: 1973 Cr LJ 1184: (1973) 1 SCWR 655: MANU/SC/0067/1973 : (1973) 2 SCC 257: 1973 SCC (Cri) 809. Under article 134(1)(c), prima facie, a High Court appears to enjoy an unqualified power to grant fitness certificates in criminal cases. But to control the flow of criminal appeals to itself, the Supreme Court has laid down certain guiding norms for the High Court to follow for granting such certificates.
Parliament is empowered under clause (2) of this article to enlarge the appellate jurisdiction of the Supreme Court in regard to criminal matters. Parliament may, for instance, provide that in all cases of death sentences, there shall be a right to appeal to the Supreme Court. Several members of the Constituent Assembly were in favour of giving to the person condemned to death the right to prefer an appeal to the Supreme Court.
Every High Court, passing or making a judgment, decree or final order or sentence referred to in clause (1) of article 132 or clause (1) of article 133 or clause (1) of article 134-
(a) may, if it deems fit so to do, on its own motion; and
(b) shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgement, decree, final order or sentence, determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in clause (1) of article 132, or clause (1) of article 133 or, as the case may be, sub-clause (c) of clause (1) of article 134, may be given in respect of that case.
State Bank of India v. S.B.I. Employees' Union, MANU/SC/0146/1987 : AIR 1987 SC 2203: JT 1987 (4) SC 579: (1987) 4 SCC 370: 1987 Rajdhani LR 552. The Supreme Court revoked a certificate issued by a Single Judge of the High Court because clearly the appeal did not fall within article 132 and 134 and though it could fall within article 133(1), it contravened clause (3) of that Article which denies appeal from the judgment, etc., of a single judge of a High Court.
Under article 134 it is obligatory on the High Court to consider the question of granting certificate immediately on the delivery of the judgment, decree, final order or sentence concerned either on oral application by the party aggrieved, or, if it deems fit to do so, on its own motion.
Until Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction and powers with respect to any matter to which the provisions of article 133, or article 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the federal court immediately before the commencement of this constitution under any existing law.
Garikapati Veeraya v. U.N. Subbiah Choudhry, MANU/SC/0008/1957 : AIR 1957 SC 540: 1957 SCA 495: 1957 SCJ 439: 1957 SCR 399: 1957 SCJ 501. An appeal will lie to the Supreme Court from a judgment, decree or final order of the High Court given in a suit or proceeding instituted before the commencement of the Constitution if it satisfy the conditions of valuation under the law existing at the commencement of the Constitution.
(1) Notwithstanding anything in this chapter, 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.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Force.
Pritam Singh v. State, MANU/SC/0015/1950 : AIR 1950 SC 169: 86 CLJ 120: 51 Cr LJ 1270: 1950 SCR 453. By virtue of this article we can grant special leave in civil cases, in criminal cases, in income-tax cases, in cases which come up before different kinds of tribunals and any variety of other cases. The only conditions are: firstly the determination or order sought to be appealed from must have the character of a judicial adjudication purely administrative or executive direction is not contemplated to be made the subject-matter of appeal to the Supreme Court. Secondly the authority whose act is contemplated against must be a court or tribunal Unless both the conditions are satisfied, article 136(1) cannot be invoked.
Kunhayammed v. State of Kerala, MANU/SC/0432/2000 : AIR 2000 SC 2587: 2000 AIR SCW 2608: JT 2000 (9) SC 110: MANU/SC/0432/2000 : (2000) 6 SCC 359: (2000) 5 SCALE 167: 2000 (5) Supreme 181: 2000 (2) UJ (SC) 1158. The power given to the Supreme Court by article 136(1) is in the nature of residuary power. The power is plenary in the sense that there are no words in article 136 qualifying that power, it is a sweeping power, exercisable outside the purview of ordinary law to meet the pressing demand of justice. The Supreme Court has characterized its power under
article 136 as a untrammelled reservoir of power incapable of being confined to definitional bounds, the discussion and good sense of justice of the judges.
Narpat Singh v. Jaipur Development Authority, MANU/SC/0357/2002 : AIR 2002 SC 2036: 2002 AIR SCW 2085: JT 2002 (1) SC (Supp) 481: MANU/SC/0357/2002 : (2002) 4 SCC 666: (2002) 4 SCALE 31: 2002 (3) Supreme 449: 2002 (2) UJ (SC) 820. The exercise of jurisdiction conferred by article 136 of the Constitution on this court is discretionary. It does not confer a right to appeal on a party to litigation, it only confers a discretionary power of widest amplitude on this court to be exercised for satisfying the demands of justice. On the one hand, it is an exceptional power to be exercised sparingly, with caution and care and to remedy extraordinary situations or situations occasioning gross failure of justice. On the other hand, it is an overriding power where under the court may generously step in to impart justice and remedy injustice.
Jagdish Chanana v. State of Haryana, MANU/SC/7455/2008 : AIR 2008 SC 1968: 2008 Cr LJ 2237: 2008 AIR SCW 2279: (2008) 4 SCALE 411. The scope of article 136(1) is very comprehensive and it invests the Supreme Court with a plenary jurisdiction to hear appeals. Article 136(1) is covered in the widest possible terms. The broad and overriding nature of article 136 will be evidenced from its following features:-
(1) Under article 136 in suitable cases, the Supreme Court can even disregard the limitations contained in articles 132-134 on its appellate jurisdiction and hear appeal which it could not otherwise hear under these provisions.
(2) Articles 132 to 134 permit appeals only against decision of the High Court. Article 136 on the other hand, does not impose any such restriction.
(3) The word 'order' in article 136(1) has not been qualified by the adjective final as is the case in articles 132, 133 and 134. The Supreme Court thus has power to hear an appeal even from on interlocutory or an interim order.
(4) Article 136(1) does not define the nature of proceedings from which the Supreme Court may hear appeals and, therefore, it could hear appeals in any kind of proceedings whether civil, criminal or relating to income-tax, revenue or labour disputes etc.
(5) Article 136(1) confers on the Supreme Court power to hear appeals from orders and determination of any tribunal, other than a military tribunal.
(6) Under article 136(1), the Supreme Court may hear appeal even though the ordinary law pertaining to the dispute makes no provision for such an appeal.
(7) Being a jurisdiction conferred by the Constitution, it cannot be diluted or circumscribed by ordinary legislative process, it can be curtailed or modified only by constitutional process.
(8) The Supreme Court may hear an appeal even where the Legislature declares the decision of a court or tribunal as final.
(9) Under article 136(1), the Supreme Court has plenary jurisdiction to grant leave, and hear appeals against any order of a Court or Tribunal.
(10) The scope of this special appellate jurisdiction of the Supreme Court is very flexible. There are no words in article 136 itself qualifying the power of the Supreme Court. The matter lies within the complete discretion of the Supreme Court.
(11) Article 136 confers no right of appeal upon any party, it only vests a discretion in the Apex Court to intervene by granting leave to a petitioner to enter in its appellate jurisdiction not open otherwise and as of right.
(12) A special leave petition can be filed under article 136 by a person who is a party to the decision against which the appeal is sought to be filed.
Kunhayammed v. State of Kerala, MANU/SC/0432/2000 : AIR 2000 SC 2587: 2000 AIR SCW 2608: JT 2000 (9) SC 110: MANU/SC/0432/2000 : (2000) 6 SCC 359: (2000) 5 SCALE 167: 2000 (5) Supreme 181: 2000 (2) UJ (SC) 1158. The Supreme Court has observed that it is not the policy of this court to entertain special leave petitions and grant leave under article 136 of the Constitution save in these cases where some substantial question of law of general or public importance is involved or there is manifest injustice resulting from the impugned order or judgment.
Dubaria v. Har Prasad, MANU/SC/1638/2009 : (2009) 9 SCC 346. It would be open to the Supreme Court to interfere with concurrent findings of fact if the infirmity of excluding ignoring and overlooking the abundant materials and the evidence, if considered in proper perspective would have led to a conclusion contrary to the one taken by courts below.
What is Tribunal-In the modern era of 'social welfare' State, there is a vast extension in government operation, activities and responsibilities so much so that it is known as the administrative age. Many functions undertaken by a modern Government give rise to opportunities for adjudication and, thus, India along with other democratic countries has come to have a host of varied adjudicatory bodies outside the regular judicial hierarchy.
A tribunal is a body or authority, though not a court in the strict sense, which is invested with the judicial power to adjudicate on question of law or fact affecting the rights of citizens in a judicial manner.
Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank, Ltd., Delhi, MANU/SC/0030/1950 : AIR 1950 SC 188: 86 CLJ 230: 1950 SCR 459. Tribunal is a body of authority although not a court having all the attributes of a court, which is vested with judicial power to adjudicate on question of law or fact affecting the rights to citizen in a judicial manner.
Clerks and Depot Cashiers of the Calcutta Tramways Co. Ltd. v. Calcutta Tramways Co. Ltd., MANU/SC/0061/1956 : AIR 1957 SC 78: 1957 SCJ 23: 1956 SCR 772: 1956 SCC 518. It was held that the Supreme Court can normally interfere, with the decisions arrived at by these tribunals on the following grounds, where:-
(1) the Tribunal acts in excess of the jurisdiction conferred upon it under the statute or regulation creating it or where it ostensibly fails to exercise a patent jurisdiction;
(2) there is an apparent error on the face of the decision;
(3) the awards are made in violation of principles of natural justice causing substantial and grave injustice to parties;
(4) the Tribunal has erroneously applied well-accepted principle of jurisdiction.
(1) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.
(2) The President may, notwithstanding anything in the proviso to article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.
Article 143 authorises the President to refer to the Supreme Court a question of law or fact which in his opinion is of such a nature and of such public importance that it is expedient to obtain its opinion upon it. The words of article 143 are quite wide and therein no condition that it is only in respect of matters falling within the power, functions and duties of the President that it would be competent to hear to frame questions for the advisory opinion of the Supreme Court.
The following reference have been made by the President under this article.
(1) In re Delhi Laws Act, 1912.The Supreme Court's pronouncement in the Delhi Laws Act case gave timely guidance to the Central Executive regarding the scope and extent of its legislative power under the Delhi Laws Act. It thus avoided embarrassment to the Central Government and difficulties to the people which might have arisen had the Act extended to Delhi or any other Part C State were to be declared ultra vires.
(2) In re Kerala Education Bill, 1957, MANU/SC/0029/1958 : AIR 1958 SC 956: 1959 SCJ 321: 1959 SCR 995. This case sought the Supreme Court's opinion on the constitutional validity of certain provisions of the Kerala Education Bill which had been reserv by the Governor for the President's Consideration.
(3) In re Berubari Union, MANU/SC/0049/1960 : AIR 1960 SC 845: 1960 SCJ 933: (1961) 1 SCA 22: (1960) 3 SCR 250. In this case under the Indo-Pak agreement, Berubari Union No. 12 was to be given to East Bengal and some other territories were to be exchanged. The Supreme Court advised that in case Government of India wants to give any territory to a foreign country, that can be done only through an amendment under article 368.
(4) In re Keshav Singh, MANU/SC/0048/1964 : AIR 1965 SC 745: 1965 (1) SCJ 847: (1965) 1 SCA 441: (1965) 1 SCR 413. The Supreme Court observed that it is the Constitutional obligation of this court to make a report on that reference embodying its advisory opinion, in a reference made under article 143(1) there is no such obligation. In dealing with this latter class of reference it is open to this court to consider whether it should make a report to the President giving its advisory opinion on the questions under reference.
(5) In re Presidential Election, 1974, AIR 1974 SC 1682: (1974) 2 SCC 33: (1975) 1 SCR 504. In this case the question was whether it is mandatory to hold elections for the post of the President before it falls vacant because of expiration of term of office. It is for the Supreme Court to decide upon the validity of the election of the President. It was therefore, advisable that the opinion of the Court be sought beforehand to that any future embarrassment could be avoided in case the court later declared the President's election invalid on the ground of non-existence of a State Legislature.
(6) In re Special Court Bill, MANU/SC/0039/1978 : AIR 1979 SC 478: (1979) 1 SCC 380: 1979 (2) SCJ 35: (1979) 2 SCR 476. In Special Court Bill provisions were made for special court to try offences committed by persons holding high public or political offences during the period when proclamation of emergency remained in operation. The Bill was upheld on the ground that the classification was based on intelligible differentia and differentia had rationed relation with object sought to be achieved i.e., speedy trial which could not be possible in ordinary courts due to congestion of work.
(7) Special Reference No. 1 of 1982.-This reference was regarding validity of Jammu and Kashmir Resettlement Act. No opinion was expressed for 19 years and in November 2001 it was returned without any opinion. Then the State Government decided to implement the Act, but on a writ petition by Bhim Singh the Supreme Court stayed the implementation on 1-2-2002.
(8) In re Cauvery Water Dispute Tribunal, MANU/SC/0097/1992 : AIR 1992 SC 522: 1992 AIR SCW 119: JT 1991 (4) SC 361: (1993) Supp 1 SCC 96. The main question referred to the court for its advisory opinion was whether the Tribunal established under the Inter-State water Dispute Act, 1956 has power to grant an interim relief to the parties to the dispute.
The court observed that advisory opinion is entitled to due weight and respect and normally it will be followed. We feel that the said view which holds the fields today may usefully continue to do so till a more opportune time.
(9) Special Reference No. 1 of 1993. In this case court was asked to give opinion as to whether there was any Hindu temple or other Hindu religious structure was there in the place of Babri Maszid. For the first time the court in this case categorically refused to give opinion.
(10) Presidential Reference No. 1 of 1998, MANU/SC/1146/1998 : AIR 1999 SC 1: 1998 AIR SCW 3400: JT 1998 (7) SC 304: MANU/SC/1146/1998 : (1998) 7 SCC 739: 1998 (4) SCJ 200: (1998) 5 SCALE 629: 1998 (8) Supreme 140. The reference was made by the President in July, 1998. In Advocates-on-record Association v. Union of India, MANU/SC/0073/1994 : AIR 1994 SC 268: MANU/SC/0073/1994 : (1993) 4 SCC 441, the Supreme Court had laid down the procedural norms for the appointment of the judges of the Supreme Court and the High Court. The decision was rendered by a Bench of 9 Judges.
(11) In Special Reference No. 1 of 2002, MANU/SC/0891/2002 : AIR 2003 SC 87: 2002 AIR SCW 4492: JT 2002 (8) SC 389: MANU/SC/0891/2002 : (2002) 8 SCC 237: (2002) 7 SCALE 614: 2002 (7) Supreme 437. The court held that the Supreme Court was well within its jurisdiction to answer or advice the President in a reference made under article 143(1) if the questions referred are likely to arise in future or such question are of public importance or there is no decision of the Supreme Court which has decided the question referred to the court for its advisory opinion. In thin reference the question was whether the Election Commission was bound to hold election of the Gujarat Assembly which was dissolved before the expiry of its five years time, within 6 months as mandated by article 174 of the Constitution.
The law declared by the Supreme Court shall be binding on all courts within the territory of India.
The expression "all courts within the territory of India" clearly means courts other than the Supreme Court. Thus, the Supreme Court is not bound by its own decision and may in proper cases reverse its previous decisions.
Bengal Immunity Co. Ltd. v. State of Bihar, MANU/SC/0083/1955 : AIR 1955 SC 661: 1955 SCA 1140: 1955 SCJ 672: (1955) 2 SCR 603. The Supreme Court held that there is nothing in the Indian Constitution which prevents the Supreme Court departing from its previous decision if it is convinced of its error and its beneficial effect on the general interest of public.
Subject to the provisions of any law made by Parliament or any rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.
According to the rules of the court, in a civil proceeding review of a court decision will be on the following grounds-
(a) discovery of new and important matter of evidence,
(b) mistake or error apparent on the face of the records,
(c) any other sufficient reason e.g., that there are in the judgment certain ummerited observations against the petitioner.
S. Nagraj v. State of Karnataka, (1993) Supp (4) SCC 595. Review hitherdey means examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality.
Lily Thomas v. Union of India, AIR 2000 SC 1650: 2000 Cr LJ 2433: 2000 AIR SCW 1760: JT 2000 (5) SC 617: (2000) 6 SCC 224: (2000) 4 SCALE 176: 2000 SCC (Cri) 1056: 2000 (3) Supreme 601: 2000 (2) UJ (SC) 1113. The power of review can be exercised for correction of a mistake and to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review.
(1) The Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer.
(2) The Supreme Court shall have such further jurisdiction and powers with respect to any matter as the Government of India and the Government of any State may by special agreement confer, if Parliament by law provides for the exercise of such jurisdiction and powers by the Supreme Court.
Parliament may by law confer on the Supreme Court power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for any purposes other than those mentioned in clause (2) of article 32.
(1) Where cases involving the same or substantially the same question of law are pending before the Supreme Court and one or more High Court or before two or more High Courts and the Supreme Court is satisfied on its own motion or on an application made by the Attorney-General for India or by a party to any such case that such questions are substantial question of general importance, the Supreme Court may withdrawn the case or cases pending before the the High Courts or High Court and dispose of all the cases itself:
Provided that the Supreme Court may after determining the said questions of law return any case so withdrawn together with a copy of its judgment on such questions to the High Court from which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the case in conformity with such judgment.
(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal other proceedings pending before any High Court to any other High Court.
Parliament may by law make provision for conferring upon the Supreme Court such supplemental powers not inconsistent with any of the provisions of this Constitution as may appear to be necessary or desirable for the purpose of enabling the court more effectively to exercise the jurisdiction conferred upon it by or under this Constitution.
The object of this article is to enable Parliament to confer such supplementary power on the Supreme Court as may appear necessary to enable it to perform effectively the functions placed upon it under the Constitution.
(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.
All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.
(1) Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including-
(a) rules as to the persons practicing before the court;
(b) rules as to the procedure for hearing appeals and other matters pertaining to appeals including the time within which appeals to the court are to be entered;
(c) rules as to the proceedings in the court for the enforcement of any of the rights conferred by Part III;
(cc) rules as to the proceedings in the court under article 139A;
(d) rules as to the entertainment of appeals under sub-clause (c) of clause (1) of article 134;
(e) rules as to the conditions subject to which any judgment pronounced or order made by the court may be reviewed and the procedure for such review including the time within which applications to the court for such review are to be entered;
(f) rules as to the costs of and incidental to any proceedings in the court and as to the fees to be charged in respect of proceedings therein;
(g) rules as to the granting of bail;
(h) rules as to stay of proceedings;
(i) rules providing for the summary determination of any appeal which appears to the court to be frivolous or vexatious or brought for the purpose of delay;
(j) rules as to the procedure for inquiries referred to in clause (1) of article 317.
(2) Subject to the provisions of clause (3), rules made under this article may fix the minimum number of Judges who are to sit for any purpose, and may provide for the powers of single Judges and Division Courts.
(3) The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under article 143 shall be five:
Provided that, where the court hearing an appeal under any of the provisions of this Chapter other than article 132 consists of less than five Judges and in the course of the hearing of the appeal the court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such court shall refer the question for opinion to a court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.
(4) No judgment shall be delivered by the Supreme Court save in open court, and no report shall be made under article 143 save in accordance with an opinion also delivered in open court.
(5) No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion.
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