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Introduction

Supreme Court of India is the highest court established by Part V, Chapter IV of the
Indian Constitution. The Supreme Court of India came into being on 28 January 1950. It
replaced both the Federal Court of India and the Judicial Committee of the Privy Council
which were at the apex of the Indian court system. It is the highest appellate court which
takes up appeals against the verdicts of the High Courts and other courts of the states
and territories.

In the United States of America, there is separate judicial system for the States and the
Union. But in India, the whole country has only one judicial system which is un-federal
character of the Constitution of India. In this regard, Dr. Ambedkar claimed that unlike in
the USA, “The Indian Federation, though a dual polity, has no dual judiciary at all". It is
said that this system was followed “to eliminate all diversity in all remedial procedure”

Article 124(1) establishes the Supreme Court of India. The Chief Justice of the Court is
designated as the Chief Justice of India. The Supreme Court sits in New Delhi, or at any
other place, as the Chief Justice of India may appoint with the approval of the President
pursuant to Article 130.

As originally enacted, the Constitution of India provided for a Supreme Court with a
Chief Justice and seven lower-ranking judges – leaving it to Indian Parliament to
increase this number. Parliament increased the number of judges from the original eight
in 1950 to eleven in 1956, fourteen in 1960, eighteen in 1978, twenty-six in 1986 and
thirty one in 2009.

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Appointment of Judges
Article 124(2) lays down the method of appointment of Judges of the Supreme Court.
Every judge of the Supreme Court is appointed by the President of India by warrant
under his hand and seal. The President’s power of appointment of Judges is not
unfettered.1

Prior to 1993, the President’s power to appoint the Supreme Court Judges was purely of
a formal nature, for, he would act on advice of the Executive. The final power of
appointment rested with the Executive and the views expressed by the Chief Justice
were not considered binding on the Executive. Over the years a convention was
developed that the seniormost judge would become the Chief Justice whenever the
vacancy arose. The Law Commission in its XIV Report criticised this practice on the
ground that a Chief Justice should not only be an able and experienced judge but also a
competent administrator and, therefore, the office should not be regulated by seniority.

On the retirement of the 13th Chief Justice of India, Justice A.N. Ray was appointed as
the Chief Justice superseding Justices Shelat, Grover and Hedge. The three
superseded Judges resigned in protest. Again on the retirement of Justice Ray, the
seniormost judge, Justice Khanna was superseded and Justice Beg was appointed as
the Chief Justice of India. These actions of the raised a controversy, the Supreme Court
Bar Association condemned the action of the Government. The Government’s actions
were considered a blatant and outrageous attempt to undermine the independence and
impartiality of the Judiciary.2 Since 1978, again, the practice has developed of
appointing the seniormost judge as the Chief Justice.

According to Article 124 the President is required to “consult” the Chief Justice in the
matters of appointment of Judges, the meaning of the word consultation came came for
consideration to the Supreme Court with reference to Article 222 of the Constitution in
the case of Union of India vs Sankal Chand Himatlal Sheth 3. It was held that the
President may differ from the Chief Justice and for cogent reasons may take a contrary
view. In other words, the advice is not binding on the Government invariably and as a
matter of compulsion in law.4

In S.P. Gupta vs Union of India,5 the Supreme Court agreed with the meaning of
‘consultation’ as explained in the Sankal Chand Sheth case. Justice Krishna Iyer
pointed out that the, bach of the constitutional functionaries required to be consulted
1 MAHENDRA P. SINGH, N. Shukla’s Constitution of India, (Eastern Book Company, 11th Edition, 2010)
2 J.N. PANDEY, The Constitutional Law of India, (Central Law Agency, 48th Edition, 2011)
3 1977 AIR 2328
4 https://indiankanoon.org/doc/1302865/
5 AIR 1982 SC 149

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under these two articles must have for his consideration full and identical facts bearing
upon appointment or non-appointment of the person concerned as a Judge and the
opinion of each of them taken on identical material must be considered by the Central
Government before it takes a decision whether or not to appoint the person concerned
as a Judge. But, while giving the fullest meaning and effect to consultation, it must be
borne in mind that it is only consultation which is provided by way of fetter upon the
power of appointment vested in the Central Government and consultation cannot be
equated with concurrence.6 The only ground on which such decision can be assailed is
that it is mala fide or based on irrelevant considerations.

Where there is a difference of opinion amongst the constitutional functionaries who are
consulted, it is for the Central Government to decide whose opinion should be accepted
and whether appointment should be made or not. Thus the ultimate power to appoint
the Judges was vested in the Executive, from whose dominance and subordination it
was sought to be protected. This situation prevailed for the next 12 years.

In a landmark judgment in S.C. Advocate on Record Association vs Union of India 7


popularly known as the Second Judge’s Case, a nine judge bench overruled the
decision in S.P. Gupta vs Union of India and held that in the matter of appointment of
Judges of Supreme Court and High Court Chief Justice of India should have primacy. 8 A
specific procedure called ‘Collegium System’ for the appointment and transfer of judges
in the higher judiciary was devised.

The Court highlighted that the greatest significance was attached to the view of the
Chief Justice of India because of the realization that he is best equipped to assess the
true worth of the candidates for adjudging their suitability for appointment as a Judge. 9

The Honorable Supreme Court further clarified that the opinion of the Chief Justice of
India is formed collectively, after taking into consideration the views of the his senior
colleagues who are required to be consulted by him for the formation of his opinion.

The court has observed that:10

“Entrustment of the task of appointment of superior Judges to high constitutional


functionaries; the greatest significance attached to the view of the Chief Justice of India,
who is best equipped to assess the true worth of the candidates for adjudging their
suitability; the opinion of the Chief Justice of India being the collective opinion formed
after taking into account the views of some of his colleagues; and the executive being

6 https://indiankanoon.org/doc/1294854/
7 (1993) 4 SCC 441
8 J.N. PANDEY, The Constitutional Law of India, (Central Law Agency, 48th Edition, 2011)
9 https://indiankanoon.org/doc/753224/
10 (1993) 4 SCC 441, para 58

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permitted to prevent and appointment considered to be unsuitable, for strong reasons
disclosed to the Chief Justice of India, provide the best method, in the constitutional
scheme, to achieve the constitutional purpose without conferring absolute discretion or
veto upon either the judiciary or the executive, much less in any individual, be he the
Chief Justice of India or the Prime Minister.”

The Court laid down the following propositions in relation to appointment of Supreme
Court Judges11

In 1998, President K R Narayanan issued a Presidential Reference to the Supreme


Court12 over the meaning of the term “consultation” under Article 143 of the Constitution
(Advisory Jurisdiction). The question was whether “consultation” required consultation
with a number of judges in forming the Chief Justice’s opinion, or whether the sole
opinion of Chief Justice could by itself constitute a “consultation”. In response, the
Supreme Court laid down 9 guidelines for the functioning of the coram for appointments
and transfers — this has come to be the present form of the collegium, and has been
prevalent ever since.13

The following propositions were laid down by the Supreme Court 14:

1. The term “consultation” with the Chief Justice of India in Articles 124 (2), 217(1)
and 222 (1) requires consultation with a plurality of judges in the formation of the
opinion of the Chief Justice of India. The sole, individual opinion of the CJI does not
constitute consultation.

2. The Chief Justice of India can only make a recommendation to appoint a judge of
the Supreme Court and to transfer a Chief Justice or puisne judge of a High Court in
consultation with the four senior-most judges of the Supreme Court.

3. Strong cogent reasons do not have to be recorded as justification for a departure


from the order of seniority in respect of each senior judge who has been passed over.
What has to be recorded is the “positive reason for the recommendation”.

4. The views of the judges consulted should be in writing and should be conveyed to
the Government of India by the Chief Justice of India along with his views to the extent
set out in the body of this opinion.

5. The Chief Justice of India is obliged to comply with the norms and the requirement
of the consultation process in making his recommendations.

11 M.P. Jain, Indian Constitutional Law(Lexis Nexus,5th Edition,2005)


12 In re: Presidential Reference, AIR 1999 SC 1
13 http://indianexpress.com/article/explained/collegium-system-supreme-court-how-judges-are-appointed-and-
transferred-the-debate-around-it-4375719/
14 http://www.iasscore.in/special-details-19.html

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6. Recommendations by the Chief Justice of India without [such compliance] are not
binding upon the government.

8. The Chief Justice of India is not entitled to act solely in his individual capacity,
without consultation with other judges of the Supreme Court, in respect of materials and
information conveyed by the Government for non-appointment of a judge recommended
for appointment.

Thus, we can say the “collegium system” of appointment of Judges to the Higher
Judiciary has its genesis in the series of judgments via interpretation of pertinent
constitutional provisions.

The National Judicial Appointment Commission (NJAC) was purposed for the
appointment of Judges to the Supreme Court and High Court. The NJAC Bill 2014, that
established the NJAC was introduced and passed by both houses of Parliament with
the Constitutional (99th Amendment) Bill 2014. The President gave his assent to the bill
on 31 December 2014 and the Act was notified by the government on 13 April 2015.
However, by then the Act had been challenged in various public interest litigations in the
Supreme Court.15

The NJAC aimed at replacing the ‘collegium system’ of appointment. Along with the
NJAC amendment, Articles 124 A, B and C were added to the Constitution to make the
NJAC valid.

However, the NJAC and 99th Constitutional Amendment were declared as


“unconstitutional and void” by the Supreme Court on October 17, 2015 and it was held
that the ‘collegium system’, as it existed before the NJAC, would again become
“operative.”16

Justice J.S. Khehar, who headed the 5 member bench, stated in his judgment, “It is
difficult to hold that the wisdom of appointment of judges can be shared with the
political-executive. In India, the organic development of civil society has not as yet
sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the
citizens of this country, can only be ensured, by keeping it absolutely insulated and
independent, from the other organs of governance .”

Qualifications
According to Article 124(3) of the Constitution of India, a person to be appointment as a
Judge of the Supreme Court must be a citizen of India and he may have been –

15 http://www.livemint.com/Politics/rcsu24yGQ0frdanyQ9fVVL/All-you-need-to-know-about-NJAC.html
16 http://www.thehindu.com/news/national/supreme-court-verdict-on-njac-and-collegium-
system/article7769266.ece

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(a) Either a Judge of a High Court or of two or more such Courts in succession for at
least five years, or

(b) An advocate of a High Court or of two or more such Courts in succession for at least
ten years, or,

(c) may be, in the opinion of the President, a distinguished jurist.

The provision for a distinguished jurist has been inspired by the American example and
the qualification for The Hague. It was purposed as an amendment, by H.V Kamath, as
recorded in the Constituent Assembly Debates dated May 24, 1949. H.V. Kamth
reasoned that17,

“The object of this little amendment of mine is to open a wider field of choice for the
President in the matter of appointment of judges of the Supreme Court... I am sure that
the House will realize that it is desirable, may [be] it is essential, to have men — or for
the matter of that, women — who are possessed of outstanding legal and juristic
learning. In my humble judgment, such are not necessarily confined to Judges or
Advocates. Incidentally, I may mention that this amendment of mine is based on the
provision relating to the qualifications for Judges of the International Court of Justice at
The Hague.”

American example where President Roosevelt appointed Felix Frankfurter, a Professor


at Harvard Law School for 25 years, as an Associate Judge of the American Supreme
Court in 1939.

Salary
The salary payable to a Supreme Court Judge was specified under Article 125(1) and
the Second Schedule but then by the Fifty-fourth Constitutional Amendment 1986, the
Parliament of India was given the power to determine the salary payable to a Supreme
Court Judge. All these matters are now regulated by the Supreme Court Judges
(Salaries and Conditions of Service) Act, 1998 18.

Ad Hoc Judges
According to Article 127 of the Indian Constitution, if at any time the quorum of the
Judges of the Supreme Court is insufficient to hold or continue any session of the Court,
the Chief Justice of India may, with the previous consent of the President and after
consultation with the Chief Justice of the High Court concerned, request in writing the
attendance at the sittings of the Court, as an ad hoc Judge, for such period as may be

17 http://www.thehindu.com/todays-paper/tp-opinion/wanted-an-indian-frankfurter/article4896382.ece
18 M.P. Jain, Indian Constitutional Law(Lexis Nexus,5th Edition,2005)

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necessary of a Judge of a High Court duly qualified for appointment as a Judge of the
Supreme Court to be designated by the Chief Justice of India.

Pursuant to Article 127(2), the ad hoc judges of the Supreme Court enjoy all the
jurisdiction, powers and privileges like any other judge of the Supreme Court while
discharging his duties.

Tenure
Once appointed, a Judge of the Supreme Court may cease to be so on the happen ing
of any one of the following contingencies

(a) On attaining the age of 65 years;

(b) On resigning his office by writing addressed to the President, according to the Article
124(2A)

Supreme Court in the case of Union of India vs Gopal Chandra Mishra19 decided cab
resignation sent to the President be withdrawn before it is accepted. The case dealt with
Article 217 but it applies to Article 124(6). The Supreme Court observed that the general
principle is that in absence of a legal, contractual or constitutional bar, a prospective
resignation can be withdrawn at any time before it becomes effective, when it becomes
effective when it operates to terminate the employment or the office tenure 20.

Removal of Judge
The question of removal of a Judge before the age of retirement is an important one as
it has a direct bearing on the independence of the Judiciary, the ease with which
Executive can remove the Judge reflects upon the control it maintains over the
Judiciary.

19 AIR 1978 S.C. 694


20 http://india.lawi.asia/union-of-india-v-shri-gopal-chandra-misra-and-ors-4/

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A member of the higher judiciary, which means the Judges and Chief Justices of the
Supreme Court of India and the state High Courts, can be removed from service only
through the process of impeachment under Article 124 (4) of the Constitution 21.
Pursuant to Article 124(4), a Judge of the Supreme Court shall be removed from his
office by an order of the President only on an address by both Houses of Parliament
presented to the President in the same session for proved misbehavior or incapacity.
The address must be supported by a majority of the total membership of each House,
and also by a majority of not less than two thirds of the members of that House present
and voting22.

The use of the phrase ‘proved misbehavior or incapacity’ indicates that an address can
only be presented in the Parliament only when the alleged charges have been
investigated, substantiated and established by an impartial tribunal 23.

Article 124(4) of the Constitution, armed with the Judges (Inquiry) Act, 1968 and the
Judges (Inquiry) Rules, 1969 provides for the entire process of Impeachment 24. As per
the Judges Inquiry Act, 1968, a complaint against a Judge has to be made through a
resolution either by 100 members of the Lok Sabha or 50 Rajya Sabha members. After
the MPs submit a duly signed motion to this effect to their respective presiding officers,
Chairman of the Rajya Sabha or Speaker of the Lok Sabha, the presiding officer
constitutes a three-member committee comprising two Judges — two Supreme Court
Judges if the complaint is against a sitting Judge of the apex court and a jurist to probe
the complaint and determine if it is a case fit for initiating the process of impeachment. 25

At the end of the fact-finding by the committee, a report with the recommendations is
submitted to them. In the event that the committee recommends that the judge be
impeached, the house of the Parliament will vote on the same and if a two third majority
of at least half the strength concurs, then the motion of impeachment shall be placed
before the President for his assent. The process thus, involves the Judge being
arraigned before both houses of Parliament 26.

In the case of C.K. Daphtary vs O.P Gupta 27, the Supreme Court observed that if a
Judge has committed errors, even gross errors; it cannot amount to "misbehavior”
under Article 124(4).

21 http://archive.indianexpress.com/news/the-law-on-impeachment-of-judges/555056/
22 M.P. Jain, Indian Constitutional Law(Lexis Nexus,5th Edition,2005)
23 Ibid
24 https://www.lawteacher.net/free-law-essays/constitutional-law/the-process-of-impeachment-of-judges-
constitutional-law-essay.php
25 http://archive.indianexpress.com/news/the-law-on-impeachment-of-judges/555056/
26 https://www.lawteacher.net/free-law-essays/constitutional-law/the-process-of-impeachment-of-judges-
constitutional-law-essay.php
27 1971 AIR 1132

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The Supreme Court in the case of K. Veeraswami vs Union of India28 held that,

“The law enacted by Article 124(5) for dealing with the misbehaviour of a Judge covers
the field of 'investigation' and 'proof' of the 'misbehaviour' and the only punishment
provided is by Article 124(4) of removal from office. There is no escape from the
conclusion that Article 124(5) is wide enough to include within its ambit every conduct of
a Judge amounting to misbehaviour including criminal misconduct and prescribes the
procedure for investigation and proof thereof. Thus, even for the procedure for
investigation into any misbehaviour of a Judge as well as its proof, a law enacted by the
Parliament under Article 124(5) is envisaged in the constitutional scheme.”

Till date the impeachment motion has been initiated only against three Judges in India.
The first such case involved the impeachment motion in Lok Sabha of Justice V.
Ramaswami of the Supreme Court in May 1993 on charges relating to gross abuse of
his financial and administrative powers as the Chief Justice of the Punjab and Haryana
High Court and criminal misappropriation of property. However, the impeachment
motion was defeated as it could not garner special majority in the House as required.

In the case of Justice V. Ramaswami, the Ninth Lok Sabha dissolved before the
committee could present its report. After the Tenth Lok Sabha was constituted the
impeachment proceedings were taken up again but were challenged by a writ petition.
In the Sub-Committee of Judicial Accountability vs Union of India 29, the Supreme Court
noted that motion for removal of Judge does not lapse with the dissolution of the House.
The court observed, in accordance with Section3 of The Judges (Inquiry) Act, 1968:30

“The effect of these provisions is that the motion shall be kept pending till the committee
submits its report and if the committee finds the Judge guilty, the motion shall be taken
up for consideration.”

The second case involved Justice Soumitra Sen of the Calcutta High Court whose
removal from office was sought on two grounds by the following motions: (i)
misappropriation of large sums of money in his capacity as the receiver appointed by
the High Court of Calcutta; and (ii) misrepresentation of facts with regard to this
misappropriation of money before the High Court of Calcutta. The Upper House voted in
favour of his impeachment.However, Justice Soumitra Sen sent in his resignation as a
Judge of the Calcutta High Court to the President of India, with a copy to the Speaker,
Lok Sabha, before his impeachment proceedings could begin in the Lok Sabha.
Thereafter, the impeachment motion lapsed.

28 (1991) 3 SCC 655


29 1992 AIR 320
30 Ibid

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The third case involved Justice P. D. Dinakaran, Chief Justice of the Karnataka High
Court, against whom charges of corruption were made. The Chairman, Rajya Sabha,
set up another Inquiry Committee to investigate into the grounds on which his removal
was sought for. However, before the Committee could complete its investigation and
submit its Report, the concerned Judge submitted his resignation by addressing a letter
to the President of India.

In the United States of America, a Supreme Court justice is holds a lifetime


commission.
A Supreme Court Justice may be impeached by the House of Representatives and
removed from office if convicted in a Senate trial. Article III, Section 1 states that judges
of Article III courts shall hold their offices "during good behavior" and can be impeached
in case of treason, bribery or high crimes and misdemeanors. 31

Jurisdiction and Powers of the Supreme


Court
The Constitution of India confers a very wide jurisdiction on the Supreme Court. The
jurisdiction conferred may be classified as –

31 http://www.freerepublic.com/focus/f-chat/2543298/posts

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Court of Record
According to Article 129 of the Constitution, the Supreme Court is a court of record and
has all the powers of such a court including the power to punish for contempt of itself.

A ‘court of record’ is a court whose acts and proceedings are enrolled for perpetual
memory and testimony.32 The judgements, proceedings and acts of the Supreme Court
are recognized as legal precedents and legal references. These records are admitted to
be of evidentiary value and cannot be questioned when produced before any court. 33

Contempt of Court is the offence of being disobedient to or discourteous towards


a court of law and its officers in the form of behavior that opposes or defies the
authority, justice and dignity of the court. According to the provisions of the Contempt
of Court Act, 1971, contempt may be of two kinds – civil contempt and criminal
contempt. As per section 2(b) of the Contempt of Court Act, 1971, “civil contempt means
wilful disobedience to any judgment, decree, direction, order, writ or other process of a
court or wilful breach of an undertaking given to a court” and “criminal contempt means
the publication (whether by words, spoken or written, or by signs, or by visible
representation, or otherwise) of any matter or the doing of any other act whatsoever
which—

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any
court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial
proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the


administration of justice in any other manner;”

In Delhi Judicial Services Association vs State of Gujarat,34 it has been held that
Article 129 confers power on the Supreme Court to punish for contempt of itself and in
addition, it confers some additional power relating to contempt as would appear from
the expression '*including". The expression "including" has been interpreted by courts,
to extend and widen the scope of power.35

The Supreme Court can take cognizance of its contempt ‘Suo Moto’ as in the case of
Delhi Development Authority vs Skipper Construction Co.36, A plot of land was put
to auction by the Delhi Development Authority [D.D.A.] in October 1980. Skipper

32 https://www.gktoday.in/what-is-a-court-of-record/
33 https://academy.gktoday.in/article/jurisdiction-of-supreme-court-of-india/
34 1991 AIR 2176
35 https://indiankanoon.org/doc/1396751/
36 1996 AIR 2005

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Construction Company [Skipper] offered the highest bid in A sum of Rs. 9.82 crores.
According to the conditions of auction, twenty five percent of the amount was payable
immediately and the rest within ninety days. Skipper deposited the twenty five percent
but did not deposit the balance. The Court granted an interim order subject to Skipper
depositing Rs.2.5 crores within one month and another sum of Rs.2.5 crores before
April 8, 1991. Skipper was expressly prohibited from inducting any person in the
building and from creating any rights in favour of third parties. Inspite of the said
prohibitory orders from this Courts Skipper- issued an advertisement on February 4,
1991 in the leading newspapers of Delhi insisting persons to purchase the space in the
proposed building. It published such, advertisements repeatedly. 37

Noticing the conduct of Skipper, this Court initiated suo motu contempt proceedings
against Tejwant Singh and his wife, Surinder Kaur, directors of Skipper.

The Supreme Court, in a recent case, sentenced a high court judge, Justice C.S.
Karnan to six months in prison on charges of contempt. It is for first for a serving judicial
officer in what has been an unprecedented face-off in the upper judiciary over alleged
corruption. The move against Justice CS Karnan of Calcutta high court came after a
months-long, and sometimes farcical, standoff with the top court that saw the two sides
issuing a string of orders against each other.38

“We are of the unanimous opinion that Justice CS Karnan has committed contempt of
this court, of the judiciary as also the judicial process...of the gravest nature,” a seven-
judge bench led by Chief Justice JS Khehar said.

Original Jurisdiction
Under Article 131 of the Constitution, the Supreme Court has exclusive original
jurisdiction in any dispute -

(i) Between the Government of India and one or more states;


(ii) Between the Government of India and any state or states or one side and one
or more other states on the other;
(iii) Between two or more states.

A dispute of political nature is not justiciable by the Supreme Court, only a question of
law or fact on which existence of a legal right depends is under the purview of the
Supreme Court. Justice Chandrachud, very aptly in his judgment, in the State of
Rajasthan v. Union of India said “Mere wrangles between governments have no place
37 https://indiankanoon.org/doc/1336921/
38 http://www.hindustantimes.com/india-news/supreme-court-finds-justice-cs-karnan-guilty-of-contempt-hands-
him-six-month-jail-term/story-ZXj0kxvLbx4Pn9g1GxgXLL.html

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under the scheme of that article. It is only when a legal, as distinguished from a mere
political, issue arises touching upon the existence or extent of a legal right that the
article is attracted.”

The Supreme Court held in the case of Karnataka vs Union of India39,

”The object of the article seems to be that since in a federal or quaasi-federal structure,
which the Constitution seeks to set up, disputes may arise between the Government of
India; and one or more States, or between two or more States, a forum should be
provided for the resolution of such disputes and that forum should be the highest Court
in the land, so that final adjudication of such disputes could be achieved speedily and
expeditiously without either party having to embark on a long, tortuous and time
consuming journey through a hierarchy of Courts. The article is a necessary
concomitant of a federal or a quasi-federal form of Government and it is attracted only
when the parties to the dispute are the Government of India or one or more States
arrayed on either side.”

The State of Bihar filed a case in the Supreme Court 40 under Article 131 against
Union of India and Hindustan Steel Limited (a government company) claiming that due
to the negligence or deliberate action of the servants of both defendants there was a
short delivery of iron and steel material ordered to various sites in the State of Bihar in
connection with the construction work of the Gandak Project. The Court held that “in any
dispute any private party, be it a citizen or a firm or a corporation along with a State
either jointly or in the alternatively” cannot be impleaded under Article 131. “A dispute in
which such a private party is involved must be brought before a court, other than this
Court, having jurisdiction over the matter.” It further held that a “body like the Hindustan
Steel Ltd. cannot be considered to be ‘a State’ for the purpose of Article 131 of the
Constitution.

This Jurisdiction does not extend to treaties signed before the commencement of the
constitution and its scope does not extend to-

(i)Complaints as to interference with interstate water supplies referred to statutory


tribunal
mentioned in Article 262(2) with reference to Inter-state Water Disputes Act. 1956; or

(ii)Matters referred to the finance commission (Article 280); or

(iii)Adjustment of finances between the union and states (Article 290).

As per article 32 of the Constitution, Supreme Court is the guardian of fundamental


rights and any person whose fundamental rights are violated can directly approach the
39 1978 AIR 68
40 1970 AIR 1446

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Supreme Court for remedy. Any matter regarding the enforcement of Fundamental
Rights comes under the Original Jurisdiction of the Supreme Court. 41 It is empowered
to issue directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari to enforce them.

According to Article 71 of the Constitution, the Supreme Court exercises original


jurisdiction and matters relating to election of President and vice-President where its
decision is final.42

The election of VV. Giri as President and G.S. Pathak as Vice-President of India in 1996
was challenged in the Supreme Court Justice S.M. Sikri upheld the election of V.V. Giri
and G.S. Pathak.43

Appellate Jurisdiction
As a court of appeal, the Supreme Court is a final appellate tribunal of the land. The
power of reviewing and revising the orders of lower courts and tribunals by the Supreme
Court is called the appellate Jurisdiction.44

The Appellate Jurisdiction of Supreme Court can be divided into four main categories-

(i) Constitutional Matters


(ii) Civil Matters
(iii) Criminal Matters
(iv) Special Leave to Appeal

Appeal in Constitutional Matters


According to Article 132(1) of the Constitution, 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 134-A that
the case involves a substantial question of law as to the interpretation of this
constitution. Where such a certificate is given, any party in the case may appeal to the
SC on the ground that any such question as aforesaid has been wrongly decided.

The High Court can grant a certificate for appeal to the Supreme Court under Article
132 either on its own or on an ’oral’ request of the parties immediately after passing the
judgment, decree or final order.45

41 https://academy.gktoday.in/article/jurisdiction-of-supreme-court-of-india/
42 https://indiankanoon.org/doc/1185443/
43 http://byjus.com/free-ias-prep/original-jurisdiction-of-the-supreme-court
44 I bid
45 J.N. PANDEY, The Constitutional Law of India, (Central Law Agency, 48th Edition, 2011)

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Under Article 132(1) three conditions necessary for the grant of certification by the High
Court-

(i) The order appealed must be against a judgment, decree or final order made by
the High court in civil, criminal or other proceedings.
(ii) The case must involve a question of law as to the interpretation of the this
constitution, and
(iii) If the High court under Article -134(A) certifies that the case be heard by the
Supreme Court.

The phrase “other proceedings” include all proceedings other than civil and criminal
they include proceedings under the sales-tax act or the Income Tax Act, Etc. Secondly,
the case must involve a substantial question of law which has been decided by the
Supreme Court in a previous case. But if there is a difference of opinion on any question
of law among High court, and there is no direct decision of the Supreme Court on that
point it would be a substantial question of law. A very broad power is thus conferred on
the Supreme Court to hear appeals in constitutional matters. 46

When the appeal is not competent under Article-132, the Supreme Court will not hear it
even if the High court has granted the necessary certificate.

As held in the case of State of Bombay vs Jagmohan, the appellate that comes
before the Supreme Court under this Article is not entitled to challenge the propriety of
the decision appealed against on a ground other than that on which the High court
granted the certificate or the Supreme Court gave the leave, except with the permission
of the Supreme Court. Hence the appellant should ordinarily confine himself to the
constitutional law point involved.

In the case of Election Commission vs Venkata Rao 47 it was held that an appeal
would lie to the Supreme Court against the decision of a ‘Single Judge’, only in very
exceptional cases , where direct appeal to the Supreme Court is necessary and in view
of the great importance of the case an early decision is required in public interest.

Appeal in Civil Matters


Under article 133 (1) , an appeal lies to the Supreme Court from any judgment ,decree
or final order in a civil proceeding48 of a High court if it certifies-

(i) That the case involves a substantial question of law of general importance; and
(ii) That in the opinion of a High court the said question needs to be decided by the
Supreme Court.

46 http://www.grkarelawlibrary.yolasite.com/resources/FM-Jul14-CL-2-Jyoti.pdf
47 AIR 1953 SC 210
48 Civil Proceeding means proceedings in which a party asserts the existence of a civil right.

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Before 1972, there was a right to appeal to the Supreme Court if the subject matter in
dispute was valued at Rs. 20,000 or more. This has been changed because the
valuation test is not a true yardstick for the right to appeal to the Supreme Court. 49

The Supreme Court has emphasized that for grant of the certificate the question,
howsoever important and substantial should also be of such pervasive import and deep
significance that in the High court judgment it imperatively needs to be settled at the
national level by the High court, otherwise the Court will be flooded with cases of lesser
magnitude.50

Under Article 133 the Supreme Court does not interfere with concurrent findings of fact
by the trial court and the High court unless it is shown that important and relevant
evidence has been overlooked or unless it is fully unsupported by evidence on record.

Appeal in Criminal Case


According to article 134 an appeal lies to the Supreme Court from any judgment, final
order or sentence in a criminal proceeding of a High Court in the following ways-

(i) Without a certificate of High Court.


(ii) With a certificate of the High Court.

Without a Certificate (Article 134 (a) (b))

An appeal lies to the supreme court without the certificate of the High Court if the High
Court –

(i) Has on appeal reversed an order of acquittal of an accused person and


sentenced him to death.
(ii) 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.

But if the High court has reversed the order of conviction and has ordered the acquittal
of an accused, no appeal would lie to the Supreme Court.

With a Certificate (Article 134 (c))

An appeal lies to the Supreme Court if the High Court certifies under Article 134-A that it
is a fit case for appeal to the Supreme Court. The power of the High Court to grant
fitness certificate in the criminal cases is a discretionary power but the discretion is a
judicial one and must be judicially exercised along with the well-established lines which
govern these matters. The Supreme Court has laid down entire guiding principles for
49 M.P. Jain, Indian Constitutional Law(Lexis Nexus,5th Edition,2005)
50 Ibid

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the High Court to follow in granting certificate. The High Court should grant certificate
only where there has been exceptional circumstances.

In the case of State of U.P vs Raj Nath 51, The High Court acquitted the accused in
appeal solely on the ground that it regarded the testimony of eye-witness to be
baseless. It was held that the order of acquittal had resulted in the manifest miscarriage
of justice because the High Court did not make an attempt to evaluate the evidence of
eye-witness properly. Accordingly, the order of the High court was set-aside and it was
directed to dispose of appeal a fresh after evaluating the evidence. 52

Appeal by Special Leave Petition


Under Article 136, the Supreme Court is authorised to grant in its discretion special
leave to appeal from-

(i) Any judgment, decree determination sentence or order,


(ii) In any case or matter,
(iii) Passed or made by any court or tribunal in the territory of India. The only
exception to this power of the Supreme Court is with regard to any judgment etc.
of any court or tribunal constituted by or under any law relating to the Armed
forces.

In the case of Dhakeswar Cotton Mills Ltd vs Commissioner Of Income Tax, West
Bengal53, the court observed that Article 136 “being an exceptional and overriding
power, naturally it has to be exercised sparingly and with caution and only in special
and extraordinary situations. Beyond that it is not possible to fetter the exercise of this
power by any set formula or rule. “
The power of the Supreme Court under Article 136 has more frequently been invoked in
criminal appeals. In criminal cases the court will not grant special leave to appeal unless
it is shown that special and exceptional circumstances exist, or it is established that
grave injustice has been done and that the case in question is sufficiently important to
warrant a review of the decision by the Supreme Court 54
In Haripada Dey vs State Of West Bengal 55, the Supreme Court held that it will grant
special leave only if there has been gross miscarriage of justice or departure from legal
procedure such as which vitiates the whole trial or if the finding of fact were such as
shocking to the judicial conscience of the court.
In a landmark judgment in Ramakant Ravi vs Madan Rai, the Court held that where an
accused is acquitted by the high court and no appeal against the acquittal is filed by the
51 AIR 1983 SC 187
52 J.N. PANDEY, The Constitutional Law of India, (Central Law Agency, 48th Edition, 2011)
53 1955 AIR 65
54 J.N. PANDEY, The Constitutional Law of India, (Central Law Agency, 48th Edition, 2011)
55 AIR 1956 SC 757

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state a private party can file appeal under Article 136 against the acquittal order of the
High Court.

Advisory Jurisdiction
Article 143 of the Indian Constitution confers upon the Supreme Court advisory
jurisdiction. The President may seek the opinion of the Supreme Court on any question
of law or fact of public importance on which he thinks it expedient to obtain such an
opinion. On such reference from the President, the Supreme Court, after giving it such
hearing as it deems fit, may report to the President its opinion thereon. The opinion is
only advisory, which the President is free to follow or not to follow 56. However, even if
the opinion given in the exercise of advisory jurisdiction may not be binding, it is entitled
to great weight.
The first reference under Article 143 was made in the Delhi Laws case57. In almost sixty
years, twelve references have been made under Article 143 of the Constitution by the
President for the opinion of the Supreme Court:
1. In re the Delhi Law Act, AIR 1951 SC 332
2. In re the Kerala Education Bill, AIR 1958 SC 956
3. In re New India Motors Ltd. v. Morris, AIR 1960 SC 875
4. In re Berubari (Indo-Pakistan Agreements), AIR 1960 SC 845
5. In re the Sea Customs Act, AIR 1963 SC 1760
6. In re Keshav Sing’s Case, AIR 1965 SC 745
7. In re Presidential Poll, AIR 1974 SC 1682
8. In re Special Courts Bill, AIR 1979 SC 478
9. Re in the matter of Cauvery Water Dispute Tribunal, AIR 1992 SC 522
10. Re in the matter of Ram Janamabhoomi, (1993) 1 SCC 642
11. Re on Principles and Procedure regarding appointment of Supreme Court and
High Court Judges, AIR 1999 SC 1
12. Gujarat Assembly Election Matter, AIR 2003 SC 87
The Supreme Court may decline to give its opinion under Article 143 in cases it does
not consider proper or not amenable to such exercise. It was, however, held by the
Supreme Court in M. Ismail Faruqui v. Union of India 58that in that case, reasons must
be indicated.

56 Keshav Singh’s Case, AIR 1965 SC 745


57 (1951) SCR 747
58 AIR 1995 SC 605

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The Supreme Court has held in In re the Kerala Education Bill, 1957 that the use of the
word “may” in Article 143(1), in contradiction to the use of the word “shall” in Article
143(2) shows that whereas in a reference under Article 143(2) the Supreme Court is
under an obligation to answer the questions put to it, under Article 143(1) it is
discretionary for the Supreme Court to answer or not to answer the questions put to it.
Article 143 does not deal with ‘jurisdiction’ of Supreme Court but with the ‘power’ of the
President. It does not refer to any adjudication at all, but with consultation. There is to
be no judgment, decree or order; there is to be Opinion to be forwarded to the President
in a report to him. The Supreme Court itself would however remain free to re-examine
and if necessary to overrule the view taken in an opinion under Article 143(1). It was
held in Cauvery Water Disputes Tribunal 1992, that the jurisdiction under Article 143(1)
cannot be used to reconsider any of its earlier decisions. This can be done only under
Article 137 of the Constitution
In the matter of Cauvery Dispute Tribunal59, a tribunal was appointed by the central
government to decide the question of waters of river Cauvery which flows through the
states of Karnataka and Tamil Nadu. The Tribunal gave an interim order in June 1991
directing the State of Karnataka to release a particular quantity of water for the state of
Tamil Nadu. The Karnataka government resented the decision of the Tribunal and
promulgated an Ordinance empowering the government not to honor the interim Order
of the Tribunal. The Tamil Nadu government protested against the action of the
Karnataka government. Hence the President made a reference to the Supreme Court
under Article 143 of the Constitution. The Court held that the Karnataka Ordinance was
unconstitutional as it nullifies the decision of the Tribunal appointed under the Central
Act (Inter Sate Water Dispute Act, 1956) which has been enacted under Article 262 of
the Constitution. The Ordinance is also against the principles of the rule of law as it has
assumed the role of a Judge in its own cause.
In a landmark judgement in Ismail Faruqui v. Union of India60, the five judge bench of
the Supreme Court held that the Presidential reference seeking the Supreme Court’s
opinion on whether a temple originally existed at the site where the Babari Masjid
subsequently stood was superfluous and unnecessary and opposed to secularism and
favoured one religious community and therefore, does not required to be answered.
The references made under this Article are not the “law declared by the Supreme Court”
under Article 141 of the Constitution. So they are not binding on lower courts, even
though have high persuasive value. 61

Power to Review its Judgments


The powers of the Supreme Court to review its own judgments are elaborated in the
Article 137 of the Constitution of India. This has to be read with the provisions of any
law made by Parliament or any rule made under article 145 of the Constitution.

59 AIR 1992 SC 522


60 (1994) 6 SCC 360
61 https://www.lawctopus.com/academike/advisory-jurisdiction-article-143/

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Review is not rehearing of the appeal all over again. Reviewing of a judgment is done
by the Supreme Court only when some serious injustice could be seen in the judgment
after it has been passed. The power of review can be exercised for correction of a
mistake and not to substitute a view.62
According to the rules of the Court, in civil cases, Order XL of the Supreme Court Rules,
1966 expressly provides that the Supreme Court would be governed by the provisions
of Order 47, Rule 1 of the Code of Civil Procedure. Under following grounds an
application for review petition could be filed against a judgment or an order-

(i) Discovery of new evidences which wasn’t within the applicant’s knowledge and
under normal circumstances couldn’t have been known the trial. These
evidences are supposed to be so important such as it could have turned the
judgment the other way.

(ii) Mistake or error apparent on the face of the record. It could be an error of fact or
an error of law.

(iii) Any other sufficient reason.

The Supreme Court in M/s. Northern Indian Caterers (India) Ltd. vs Lt. Governor of
Delhi63, said that, “it is well settled that a party is not entitled to seek a review of a
judgment delivered by this Court merely for the purpose of a rehearsing and a fresh
decision of the case".

In criminal cases, under Order XL, Rule 1 of the Supreme Court Rules, 1966, no review
lies except on ground of error apparent on the face of the record.

In the case of G.L. Gupta v. D. H. Mehta, the Supreme Court reviewed its judgment in
a criminal appeal involving the violation of the Foreign Exchange Regulation Act, 1947
wherein it was brought to its attention that Section 23-C (2) of the Act was not brought
to the notice of the Court, and modified the sentence of imprisonment to fine.

A review may also be allowed if out of 3 judges 2 award death sentence and the third
one awards life imprisonment.64

Comparison of the powers of the Supreme Court of India with that of the
American Supreme Court
Firstly, the American Supreme Court’s appellate jurisdiction is confined to cases arising
out of the federal relationship or those relating to the constitutional validity of laws and

62 https://www.lawteacher.net/free-law-essays/administrative-law/supreme-court-reviewing-its-own-judgments-
administrative-law-essay.php
63 AIR 1981 SC 1681
64 https://www.lawteacher.net/free-law-essays/administrative-law/supreme-court-reviewing-its-own-judgments-
administrative-law-essay.php#ftn25

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treaties. But Indian Supreme Court is not only a federal court and a guardian of the
Constitution, but also the highest court of appeal in the land, relating to the
interpretation of the Constitution. 65

Secondly, the Indian Supreme Court has an extra-ordinary power to entertain appeal,
without any limitation upon its discretion from the decision not only of any court but also
of any tribunal within the territory of India (Article 136). No such power belongs to the
American Supreme Court.

Thirdly, while the American Supreme Court has denied to itself any power to advice the
government and confined itself only to the determination of actual controversies
between parties to a litigation while the Supreme Court of India is vested by the
Constitution itself with the power to deliver advisory opinion on any question of fact or
law that may be referred to it by the President (Article 143).

Conclusion
The powers and jurisdiction of the Supreme Court of India, as discussed in the project,
brings out the strong position enjoyed by it in the Indian Political Set-Up. Prof. K.V.
Rao, rightly describes the Supreme Court as, “the most powerful court in the world
having the largest jurisdiction.” Supreme Court of India has played and continues to
play a vital role in the evolution of the Constitution. In order to ensure that the Supreme
Court continues to function in an efficient manner, it is imperative to ensure the
‘Independence of Judiciary’. This concept of ‘Independent Judiciary’ has its root in the
doctrine of Separation of Power as proposed by Montesquieu. This doctrine tries to
bring exclusiveness in the functioning of the three organs and hence a strict
demarcation of power is the aim sought to be achieved by this principle.

Certain provisions which ensure the “Independence of the Judiciary’ are –

 Consultation of Judiciary has been made must for appointment of Judges, in


order to curtail arbitrary discretion of executive in appointments.

65 http://shodhganga.inflibnet.ac.in/bitstream/10603/67805/9/09_chapter%205.pdf

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 Removal of the judges of Supreme Court is a difficult process. A judge can be
removed only by the President when a resolution is passed in both the houses by
absolute and special majority.

 The Salaries, allowances and other privileges are charged upon Consolidated
Fund of India. They cannot be changed except during a financial emergency or to
their disadvantage.

 The Constitution has put a bar on any discussion in Parliament or State


Legislature regarding conduct of the judges in discharge of their duty except
when a motion for their removal is under consideration in Parliament.

 Retired judges of Supreme Court are barred from pleading or acting in any court
within the territory of India.

 Supreme Court has power to punish for contempt of itself.

 Officers and servants of the Supreme Court are appointed by Supreme Court
itself.

The pyramidal structure of the Indian Judiciary aids in ensuring an integrated judicial
set-up in the country, with the Supreme Court being the Apex Court. Ever since its
inception on January 28, 1950, the Supreme Court has played a critical role as the
guardian of the Constitution of India.

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