◈ THE UNION JUDICIARY- THE SUPREME COURT

( ARTICLES 124-147)

◈ The Guardian of the Constitution

◈ Composition of the Court: Article 124(1) :- The Supreme Court of India consists of a Chief
Justice and, Until Parliament may by law prescribes a large number, not more than seven
other judges.

◈ Parliament may increase this number, by law. Originally, the total number of judges was
seven but in 1977 this was increased to 17 excluding the chief Justice. In 1986 this number
has been increased to 25 excluding the chief justice. In 2009 the number has been increased
to 30 excluding the Chief Justice. In 2019 the number has been increased to 34 including
Chief Justice of India.

◈ The constitution does not provide for the minimum number of judges who will constitute a
bench for hearing cases.

◈ At least five judges bench is required to decide a case involving a substantial question of law
as to the interpretation of the Constitution and for hearing a reference by the President
under Art. 143. ( Article 145 (3)).

◈ In other matters, the rules made by the Supreme Court may fix the minimum number of
judges who are to sit for any purpose. ( Article 145 (2)).

◈ No judgment or opinion is delivered by the court except with the concurrence of a majority
of the judges present at the hearing of the case, though a judge not agreeing with the
majority view is entitled to deliver a dissenting judgment or opinion. ( Article 145(5)).

◈ The concurrence of the majority of judges present at the hearing of the case is necessary for
any judgment or order. When a bench consists of two judges, and they differ, the matter is
to be referred to the Chief Justice for constituting a larger bench.

◈ Appointment:

◈ Article 124(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.

◈ Under Article 124(2), the President in appointing other judges of the Supreme Court is
bound to consult the Chief Justice of India. He may consult such other judged of the
Supreme Court and High Courts as he may deem necessary. It should, however be noted
that the power of the President to appoint judges is purely formal as in this matter, he acts
on the advice of the Council of Ministers.

◈ There is always an apprehension that Executive may bring in politics in the appointment of
judges. The Indian Constitution therefore, does not leave the appointment of judges on the
discretion of the Executive.
◈ Further Article 124 (2) provides that in case of appointment of a judge other than the chief
justice , The Chief Justice of Indian Shall be consulted. Which means that in the matter of
appointment of a judge other than the Chief Justice, consultation of the Chief Justice of India
by the President is obligatory.

◈ Difference between May and Shall.

◈ PROCEDURE TO APPOINT JUDGES

◈ Before the year 1993, the President's power to appoint the Supreme Court Judges was
purely of a formal nature, for, he would act in this matter, as in other matters, on the advice
of the concerned Minister, viz., the Law Minister. The final power to appoint Supreme Court
Judges rested with the Executive and the views expressed by the Chief Justice were not
regarded as binding on the Executive.

◈ For long, the practice in India had been to appoint the senior-most Judge of the Supreme
Court as the Chief Justice whenever a vacancy occurred in that office. In 1958, the Law
Commission 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, succession
to the office should not be regulated by mere seniority.

◈ The Government did not act upon this recommendation for long. It continued to appoint the
senior-most Judge as the Chief Justice as it was afraid that it might be accused of tampering
with judicial independence.

◈ In 1973, the Government suddenly departed from this practice and appointed as Chief
Justice a Judge Justice A.N. Ray who was fourth in the order of seniority. Thus, three senior
Judges were by-passed, who then resigned from the Court in protest. This raised a hue and
cry in the country and the Government was accused of tampering with the independence of
the Judiciary. Although the Government invoked the Law Commission's recommendation to
support the step taken by it, no one believed that the seniority rule had been discarded only
because of what the Law Commission had said a few years back.

◈ The appointment of the new Chief Justice was even challenged in the Delhi High Court
through a petition for quo warranto under Art. 226 on the ground that--(i) it was mala fide,
(ii) it was against the rule of seniority inherent in Art. 124(2), and (iii) the mandatory
consultative process envisaged in Art. 124(2) had not been resorted to.

◈ The High Court dismissed the petition holding that the motives of the appointing authority
are irrelevant in quo warranto proceedings. Without expressing any definitive opinion on
points (ii) and (iii), the court ruled that even if these contentions were correct, any writ
issued by the court would be futile as Justice Ray could immediately be reappointed, by
following the requisite consultative procedure as he was now the senior-most Judge on the
Bench.

◈ Again in 1976, the Government appointed Justice Beg as the Chief Justice by-passing Justice
Khanna who was senior to him at the time. Consequently, Justice Khanna resigned in
protest. However, after the retirement of Chief Justice Beg, the senior-most Judge, Justice
Chandrachud was appointed as the Chief Justice. Since then again the rule of seniority has
been followed in the matter of appointment of the Chief Justice of India.
◈ In the context of India, it appears to be best to adhere to the convention of appointing the
senior-most Judge as the Chief Justice. This will avoid any suspicion that the Government
seeks to tamper with the judiciary. Also, when the Government has discretion to appoint the
Chief Justice, there is no guarantee that the best man for the post will always be appointed
and that considerations other than merit will not come into play.

◈ Supremacy of Executive: Judges Transfer Case-I

◈ Though according to the language used in Art. 124 the president is required to “Consult”
legal experts but prior to the decision of the Supreme Court on S.C. Advocates on-Record
Association (1993), it has always been interpreted that the President was not bound to act in
accordance with such consultation. The meaning of the word ‘Consultation’ came for
consideration of the Supreme Court in the Sankalchand Himatlal Sheth v. Union Of India
(1977) which was related to the scope of article 222 of the Constitution i.e. Transfer of a
judge from one high court to another high court.

◈ It was held in this case that the word consultation meant full and effective consultation. For
a full and effective consultation it is necessary that the three constitutional functionaries
“must have for its consideration full and 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 means concurrence and the president is not bound by
it.

◈ In S.P. Gupta v. Union of India, AIR 1982

◈ The Supreme Court unanimously agreed with the meaning of the term ‘Consultation’ as
explained by the majority in Sankalchand Sheth’s Case. The meaning of the word
‘consultation’ in Article 124 (2) is the same as the meaning of the word ‘consultation’ in
Article 222 of the Constitution. The only ground on which the decision of the Government
can be challenged is that it is based on mala fide and irrelevant consideration, that is, when
the constitutional functionaries expressed an opinion against the appointment.

◈ This means that the ultimate power to appoint judges is vested in the executive. The
Supreme Court had limited its power by ruling that Constitution functionaries had merely a
consultative role and that power of appointment of judges is “solely and exclusively” vested
in the Central Government.

◈ Judicial Supremacy

◈ S.C. Advocates on Record Association v. Union of India (1993): Judges Transfer Case II.

◈ In a historic Judgment in S.C. Advocate-on-record Association v. Union of India, popularly

know as Judges Transfer Case II, a nine judges bench of the Supreme Court by a 7:2 majority
overruled its earlier judgment in the Judges Transfer case (S.P. Gupta v. Union of India) and
held that in the matter of appointment of the judges of the Supreme Court and the High
Courts the Chief Justice of India should have primacy. The Court has laid down detailed
guidelines and held that the greatest 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.

◈ Important Guidelines:
 (1) In appointment of judges of the Supreme Court and High Courts Chief Justice of India Should
have Primacy. However, he must consult his two senior colleagues.

(2) Constitutional functionaries must act collectively in Judicial Appointments.

(3) Chief Justice of India was given the final say in transfer of Chief Justice and Judges of High
Courts.

(4) Transfer of Chief Justices and Judges of High Courts could not be challenged in Courts.

(5) Appointment of the Chief Justice of India by seniority.

(6) No judge could be appointed by the Union Government without consulting the Chief Justice
of India.

◈ Appointment and Transfer of Judges Case III.

◈ Sole opinion of Chief Justice of India without following consultation process: Not binding
on Government: In re Presidential Reference case, AIR 1999, a nine judges bench of the
Supreme Court unanimously held that the recommendation made by the Chief Justice of
India on the appointment of judges of the Supreme Court and the High Courts without
following the consultation process are not binding on the Government.

◈ The Court held that the consultation process to be adopted by the Chief Justice of India
requires consultation of Plurality of Judges. The sole individual opinion of the Chief Justice of
India does not constitute “consultation” within the meaning of the said articles. In regard to
the appointment of judges to the Supreme court, The Chief Justice of India should consult “
a Collegium of four senior most Judges of the Supreme Court and made it clear that if “two
judges give adverse opinion the Chief Justice should not send the recommendation to the
Government. The collegium includes the successor Chief Justice of India.

◈ In regard to the appointment of judges of the High Courts, the Court held that the collegium
should consist of the Chief Justice of India and any two senior most Judges of the Supreme
Court. In regard to transfer of High Court Judges the Court held that in addition to the
collegium of four Judges, the Chief Justice of India is required to consult Chief Justice of the
two High Courts (one from which the Judge ids being transferred and the other receiving
him.

◈ Qualifications: Article 124 (3)

◈ To be a judge of the Supreme Court, one must be ·

(1) a citizen of India ·

(2) has been a judge of a High Court at least for five years; or ·

(3) has been an advocate of a High Court for at least ten years or

(4) Is a distinguished jurist in the opinion of the President

Tenure: A judge of the Supreme Court retires at the age of 65 years. He may also resign from his
office.

◈ Removal of Judges
 ◈ Impeachment-- A judge of the Supreme Court can be removed by the President from his
position only on the ground of proved misbehaviour or incapacity if a resolution in this
regard is passed by the Parliament supported by two-thirds of the members present and
voting in each House and the majority of the total membership of each House. (Article 124
(4) (5)).

◈ The procedure of the presentation of an address for investigation and proof of the
misbehaviour or incapacity of a judge will be determined by Parliament by Law. (Art.124(5)).

◈ In accordance with the above provision, Parliament has enacted law for the purpose, under
which the procedure for investigation into misbehavior or incapacity of a Judge shall be
done.

◈ In K. Veeraswami v Union of India, A five Judge bench of the Supreme Court by a majority of
4.1 has held that a Judge of the Supreme court and High Court can be prosecuted and
convicted for criminal misconduct. The expression “misbehavior” in Article 124(5) includes
criminal misconduct defined in the Prevention of Corruption Act. The expression “public
servant” in Section 6(1)(c) and (2) includes judges of the High courts and Supreme Court.

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◈ Court of Record

◈ Article 129 makes the Supreme Court also act as the Court of Record and confers all the
powers of such a court including the power to punish for its contempt. The judgments of the
Supreme Court are recorded and considered as authoritative and serves as cases, laws and
proceedings. These records have great evidentiary value. Once a court is made a Court of
Record, its power to punish for contempt necessarily follows from that position. This
extraordinary power must be sparingly exercised only where the public interest demands.

◈ Contempt of Court: it is defined in section 2 of Contempt of Court act 1971. According to

section 2 Contempt can be of two types: (1) Civil Contempt (2) Criminal Contempt

◈ “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;

◈ “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;

◈ Jurisdiction, Power and Functions

◈ The jurisdiction of the Supreme Court may be categorised as original, appellate and
advisory.

◈ Original Jurisdiction: Article 131

◈ Under this jurisdiction, the Supreme Court can settle disputes:

 (a) between the Centre and one or more States;

(b) between the Centre and any State or States on the one side and one or more other States on
the other; or

(c) between two or more States.

The Supreme Court in its original jurisdiction cannot entertain any suits brought by private
individuals against the Government of India. The dispute relating to the original jurisdiction of the
court must involve a question of law or fact on which the existence of “legal right” depends. This
means that the court has no jurisdiction in matters of political nature.

◈ Exceptions:

◈ The original jurisdiction of the Supreme Court , however, does not extend to the following
matters:

1) To a dispute arising out of any treaty, agreement, covenant, engagement, or other similar
instrument which was executed before the commencement of the Constitution and
continues to be in operation or which provides that the jurisdiction of the Supreme Court
shall not extend to such a dispute.

2) Under Article 262, Parliament may by law exclude the jurisdiction of the Supreme Court in
disputes with respect to the use, distribution or control of the water of any inter-state river
or river valley.

3) Matters referred to the Finance Commission (Article 280)

4) The adjustment of certain expenses between the Union and the State. (Art. 290)

◈ Enforcement of Fundamental Rights: Directions, Orders or Writs:

◈ The Supreme Court is regarded as the protector of the Fundamental Rights of the citizens.
For this purpose, it has been given the power under Article 32 which 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 appropriate proceedings for the
enforcement of Fundamental Rights. The Supreme Court is given power to issue directions
or orders or writs in the nature of habeas corpus, mandamus, prohibition and certiorari
whichever may be appropriate.

◈ Appellate jurisdiction

◈ The Supreme Court is the highest court of appeal in the country. The writ and decrees of the
court run through the country. Thus the jurisdiction and powers of the Supreme Court in
their nature and extent are wider than those exercised by the high courts of any country in
the Commonwealth or by the Supreme Court of the U.S.A.

◈ Under this jurisdiction, the Supreme Court can hear appeals on the following cases:

◈ (a)Appeal in Constitutional Matters: Article 132(1) An appeal shall lie to the Supreme Court
from any judgment, decree or final order of a High Court whether in civil, criminal or other
proceedings if the High Court certifies under Article 134 A, that the case involves a
substantial question of law as to the interpretation of the Constitution.
 ◈ Under Article 132(1) three conditions are necessary for the grant of certificate by the High
court:

1) The order appealed must be against a judgment, decree or final order made by the High
Court in civil, criminal or other proceedings.

2) The case must involve a substantial question of law as to the interpretation of this
Constitution.

3) If the High court under Article 134A certifies that the case be heard by the Supreme Court.

4) The object of the new Article 134A is to avoid delay in granting certificate by the High Court
for appeal to the Supreme Court.

5) Meaning of Substantial Question of Law, Final Order and Other Proceedings?

◈ (b)Appeal in Civil matters: Article 133

◈ In a civil cases also, an appeal can be made to the Supreme Court against a decision of a High
court. In these cases, the High Court must certify that

( i.) the case involves a substantial question of law as to the interpretation of the Constitution and;

(ii.) that in the opinion of the High Court the said question needs to be decided by the Supreme
Court.

Prior to the Constitution 30th Amendment Act,1972, under Article 133 an appeal could lie to the
supreme Court in civil cases from any judgment, decree or final order of the High Court if the High
Court certified (a) that the amount or value of the subject matter of the dispute both in the first
instance and also an appeal was not less than Rs.20,000; or (b) that the judgment , order or final
order involves directly or indirectly same claim or question respecting property of the like amount or
value i.e. Rs. 20,000 or (c) that the case was a fit one for appeal to the Supreme Court.

◈ Civil Proceedings- It means proceedings is one in which a person seeks to remedy by an

appropriate process the alleged infringement of his civil rights 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, damages, compensation, etc.

◈ (c) Appeal in Criminal Cases: Article134

◈ An appeal lies in the Supreme Court against any judgment, final order or sentence in a
criminal proceedings of a High Court in the following two ways (1) without a certificate of
High Court, (2) With a certificate of High Court. In criminal matters, ordinarily, the High
Courts are the final courts of appeal. But the Supreme Court has been given the special
power by the Parliament to hear appeal against the decisions of the High Courts in criminal
matters in the following two ways:

(1)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:

(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death;

(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 . 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.

(2)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 grant of certificate by the High Court in 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 guideline for the
high courts to follow in granting certificates in Sidheshwar Ganguly v. State of West Bengal,
1958,. The High Courts should grant certificate only where there has been exceptional
circumstances, e.g., where substantial and grave injustice has been done. Thus a certificate
cannot be granted by the High Court on mere question of fact, where no substantial
question of law is involved.

◈ It is to be noted that under Article 134 (1) (c) the Supreme Court is not constituted as
general court of criminal appeal. It would entertain appeals from high courts only on the
above principles. A limited criminal appellate jurisdiction is confer upon the Supreme Court
by Article 134.

◈ Further, Parliament is empowered under Article 134 (2) to extend the appellate jurisdiction
of the Supreme court in criminal matters. In exercise of the power under clause (2) of Art.
134 parliament has enacted the Supreme Court Enlargement of Criminal Appellate
Jurisdiction Act, 1970. Section 2 of the above Act provides that; an appeal lies in the
Supreme Court against any judgment, final order or sentence in a criminal proceedings of a
High Court if the High Court:-

(i.) has on appeal reversed an order of acquittal of an accused person and sentenced him to
imprisonment for life or to imprisonment for a period of not less than ten years;

(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 imprisonment for life or to
imprisonment for a period of not less than ten years.

◈ Special leave to appeal: Article 136

◈ (d) Special leave to appeal: Article 136: The Supreme court is authorized to grant in its
discretion special leave to appeal from (a) Any judgment, decree, determination, sentence
or order, (b) in any case or matter, (c) 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. This Article vests very wide power in the Supreme Court The power given
under this Article is in the nature of special residuary powers which are excisable outside the
purview of ordinary law.

◈ Article 136 runs as follows: "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 case or matter passed or made by any court or
tribunal in the territory of India."

◈ Article 136 confers a special jurisdiction on the Supreme Court. It opens with a non-obstante
clause, viz. "Notwithstanding anything in this chapter". This means that the power of the
 Supreme Court under Art. 136 is unaffected by Arts. 132, 133, 134 and 134(A). The power
given to the Supreme Court by Art. 136(1) is in the nature of residuary power. The power is
plenary in the sense that there are no words in Art. 136 qualifying that power. It is a
sweeping power, exercisable outside the purview of ordinary law to meet the pressing
demands of justice.

◈ The Supreme Court has characterised its power under Art. 136 as "an untrammelled
reservoir of power incapable of being confined to definitional bounds; the discretion
conferred on the Supreme Court being subjected to only one limitation, that is, the wisdom
and good sense of justice of the Judges"

◈
Distinction between Article 136 and Articles 132-134

(1) Under Article 132 to 134 appeal can be entertained by the Supreme Court only against the
‘final order’, but under Article 136, the word ‘order’ is not qualified by the adjective ‘final’
and hence the court can grant special leave to appeal even from interim order,

(2) Under Article 132 to 134 appeal lies only against the final order of the High Court; while
under Article 136 the Supreme Court can grant special leave for the appeal from ‘any court
or tribunal’, i.e. from any subordinate court below the High Court.

(3) Under Articles 132-134 an appeal can lie in the Supreme Court only against any judgment,
decree, determination, sentence or final order of any court or tribunal in constitutional, civil,
or criminal matters respectively; but under Article 136 and appeal may lie against “any case
or matter”.

◈ Power to grant special leave to appeal to be exercised in exceptional cases :-

◈ The Supreme Court in Pritam Singh v. State, AIR 1950, has been explained that how this
discretionary power is to be exercised in the following words:

◈ “The wide discretionary power with which this Court is vested under it is to be exercised in
granting special leave to appeal in exceptional cases only, and as far as possible, a more or
less uniform standard should be adopted in granting special leave in the wide range of
matters which can come up before it under this Article. 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 in a variety of cases.“

◈ In conclusion, the Court has said: "Generally speaking, this Court will not grant special leave,
unless it is shown that exceptional and special circumstances exist, that substantial and
grave injustice has been done and that the case in question presents features of sufficient
gravity to warrant a review of the decision appealed against."

◈
Concurrent findings of the Trail Court and the High Court

◈ In an Appeal under Article 136, the Supreme Court does not interfere with the Concurrent
findings of the trial court and the High Court unless there is sufficient grounds to do so.

◈ Concurrent findings of the trial court and High Court means that when the facts have been
fairly tried by the two courts and the same conclusion has been reached by both, it is not
in the public interest that facts should be again examined by the Supreme Court.
◈ But this doesnot mean that injustice must be allowed because it has been done two or three
times. If the appellant proves that a concurrent decision of two or more courts or tribunal is
manifestly unjust, it will be the duty of the Supreme Court to remedy the injustice.

◈ In Bhaginbhai Hirajibhai v. State of Gujarat, AIR 1983, The Supreme Court held that the Court
can interfere with the concurrent findings of fact if it is established that: (1) That the finding
is based on no evidence, or (2) that the finding is perverse (unacceptable or unreasonable), it
is being such as no reasonable person could arrive at even if the evidence was taken at its
face value or (3) the finding is based and built on inadmissible evidence, or (4) Some vital
piece of evidence which would tilt the balance in favour of the convict has been overlooked,
disregarded or wrongly discarded.

◈ In Criminal Cases

◈ The Scope of Article 134 providing for appeals to the Supreme Court in criminal matters is
limited. On the other hand, Article 136 is very broad-based and confers a discretion on the
Court to hear appeals "in any cause or matter." Therefore, criminal appeals may be brought
to the Supreme Court under Article 136 when these are not covered by Article 134, or when
the High Court refuses to grant a fitness certificate, or the certificate has not been granted
properly, or when the matter falls outside the Act of Parliament extending criminal appellate
jurisdiction of the Supreme Court.

◈ 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.

◈ In Haripada Dey v. State of West Bengal, AIR 1957, 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 spoil the whole trial or if the finding of fact were such as shocking
to the judicial conscience of the Court.

◈ Thus, As under Article 134(1)(c), so under Article 136, the Supreme Court does not act as an
ordinary court of criminal appeal to which every High Court judgment in a criminal case can
be brought up for scrutiny of its correctness. The Court does not, generally speaking, allow
facts to be reopened, or act as a court to review evidence. These rules are not, however,
absolute; these rules constitute a self-imposed restriction by the Court, and may be relaxed
whenever there has been a failure of justice.

◈ APPEALS IN CONSTITUTIONAL/CIVIL CASES

◈ Under Article 136, the Supreme Court can hear appeal in a case involving substantial
question of constitutional law if the High Court refuses to grant the necessary certificate
under Art. 132. Similarly, the Supreme Court may entertain appeal in a civil case where
substantial question of law is involved but which is not covered by Article 133, as for
example, when the High Court may have refused to grant a fitness certificate. Ordinarily, the
Supreme Court does not entertain an appeal against an exercise of discretion by the court
below if it has been exercised along sound judicial lines. But if the discretion is exercised
arbitrarily or unreasonably, or is based on a misunderstanding of the principles that govern
its exercise, or the order has been passed without jurisdiction, or if there is a patently
 erroneous interpretation of law by the High Court, the Supreme Court would intervene if
there has been a resultant failure of justice.

◈ Private Party can file appeal under Art. 136

◈ In a land mark judgement in Rmakant Rai v. Madan Rai, (2004) the Supreme Court has held
that where an accused is acquitted by the High Court and no appeal against acquittal is filed
by the State, a private party can file appeal under Article 136 against the acquittal order of
the High Court. The appellate power under Article 136 is not to be confused with ordinary
appellate power exercised by appellate Courts or tribunals under specific statues. It is a
plenary power exercisable outside the purview of ordinary law to meet the pressing
demands of justice where a judgment of acquittal by the High Court has led to a serious
miscarriage of justice.

◈ APPEALS FROM TRIBUNALS UNDER ART. 136

◈ An outstanding feature of Article 136(1) is that it empowers the Supreme Court to hear
appeals not only from courts but also from tribunals in any cause or matter. In the modern
era of 'social welfare' state, there is a vast extension in governmental operations, 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.

◈ Several tests have been laid down by the Supreme Court to determine whether a particular
body or authority is a tribunal, within the ambit of Art. 136. The test are not exhaustive in all
cases. It is not necessary that all tests laid down may be present in a given case while some
tests may be present others may be lacking.

◈ In A.P.H.L Conference, Shilong v. W.A. Sangama, AIR 1977, The Court held that, It is ,
however, absolutely necessary that the authority in order to come within the ambit of Art.
136 (1) as tribunal must be constituted by the State and is vested with some function of
judicial powers of the State. This particular test must be present while some of the other
tests may or may not be present at the same time.

◈ Thus a tribunal is a body of authority although not a court having all attributes of a court,
which is vested with judicial power to adjudicate on question of law or fact affecting the
rights of the citizen in a judicial manner.

◈ ADVISORY JURISDICTION

◈ The Supreme Court has been given an advisory jurisdiction as well.

◈ According to Art. 143(1), when 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 it to the Court
for its consideration. The Court then may, after such hearing as it thinks fit, report to the
President its opinion thereon.

◈ Under Art. 143(2), a matter which is excluded from the Supreme Court's jurisdiction under
Art. 131 may be referred to it for opinion and the Court shall, after such hearing as it thinks
fit, report to the President its opinion thereon.
◈ Difference between “may and shall”.

◈ The scope of Art. 143(1) is quite broad. There is no condition that the President can refer
only such questions as pertain to his powers, functions and duties or those of the Central
Government. The President can seek the opinion of the Supreme Court on any question of
law or fact which appears to him to be of such a nature and of such public importance that it
is expedient to obtain the Court's opinion. Of course, in this matter, the President acts on
the advice of the Cabinet. Thus, questions relating to constitutional validity of the proposed
legislation, or 'powers, privileges and immunities' of State Legislatures have been referred to
the Supreme Court for opinion.

◈ It is not necessary that only a question which has actually arisen may be referred to the
Court for its opinion. The President may make a reference even at an anterior stage, namely,
when the question is likely to arise in future.

◈ The phraseology of the constitutional provision is quite broad to cover all types of
references. The Court has stated recently that it is "well within its jurisdiction to
answer/advise the President in a reference made under Art. 143(1) of the Constitution of
India if the questions referred are likely to arise in future or such questions are of public
importance or there is no decision of this Court which has already decided the question
referred:

◈ The Court has now clarified that it cannot be asked, under Art. 143(1) to reconsider any of its
earlier decisions. The President can refer only such legal question as has not been decided
by the Court earlier.

◈ Whether Supreme Court refuse to give opinion

◈ In Art. 143(1), the use of the word 'may' indicates that the Supreme Court is not obligated to
express its opinion on the reference made to it. It has a discretion in the matter and may, in
a proper case, for good reasons, decline to express any opinion on the question submitted to
it. Such a situation may perhaps arise if purely socio-economic or political questions having
no constitutional significance are referred to the Court, or a reference raises hypothetical
issues which it may not be possible to answer without a full setting of facts in which the
issues are to operate. It is to ensure against such a contingency that the Article uses the
word 'may' and enables the Supreme Court to refuse to answer questions if it is satisfied
that it should not express its opinion having regard to the questions and other relevant facts
and circumstances.

◈ However, in Art. 143(2), the use of the word 'shall' indicates that the Supreme Court has to
give its opinion on a reference made there under. There is a reason for this dichotomy
between Arts. 143(1) and 143(2). The matters referred to in Art. 143(2) are banned from
judicial scrutiny of the Supreme Court, High Court or any other court because of the
operation of Arts. 131 and 363 and there is no other way to get a judicial verdict on these
matters, if it ever becomes necessary, except through the machinery of Art. 143(2). Hence
the Supreme Court is constitutionally obligated to give its opinion if ever it is sought on the
type of questions referred to in Art. 143(2).

◈ Ayodhya Dispute and Advisory Opinion

◈ In a landmark judgment in Ismail Faruqui v. Union of India, (1994), The five judges 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 unnecessary and opposed to secularism and favoured one religious community
and therefore, does not require to be answered.

◈ Advisory Opinion Whether Binding on the Government

◈ In re Kerala Education Bill case (1958), the Supreme Court had expressed the view that the
advisory opinion of the Supreme Court under Article 143, though entitled to great respect, is
not binding on Courts because it is not a law within the meaning of Article 141. the Supreme
Court laid down the following principles to be followed in such cases ;

◈ (1) The Supreme Court has under clause (1) a discretion in the matter and in a proper case
and for good reason refuse to express any opinion on the question submitted to it.

◈ (2) It is for the President to decide what question should be referred to the Court, and if he
does not entertain any serious doubt on the other provisions it is not for any party to say
that doubts arise also out of them.

◈ But, In re Special Courts Bill case (1979), the Supreme Court has held that the views
expressed by it in exercise of its advisory jurisdiction are binding on all courts in the territory
of India. In that case the question referred to the court for its opinion was whether
Parliament was empowered to establish Special Courts for the trial of emergency offences.
Supreme Court opined that Parliament has power to establish special Courts for trial of
emergency offences subject to certain procedural safeguards that are;

(1) That only sitting and not retired High Court Judges should be appointed to the Special Court;

(2) appointment must be made with “the concurrence of’ and not simply “in consultation with’
the Chief Justice ;

(3) the accused must be given right to apply to Supreme Court for transfer of his case from one
Special Court to another if he alleges bias.

◈ The Supreme Court also made it clear that the view of the court expressed in the exercise of
its advisory jurisdiction is binding on all courts. This implies that the legislation (establishing
Special Court) can only be challenged in the Supreme Court. The judges said “It would be
strange that a decision given by this Court on a question of law in a dispute between two
private parties should be binding on all courts in this country but the advisory opinion should
bind no one at all even if, as in the instant case, it is given after issuing notice to all
interested parties, after hearing every one concerned who desired to be heard, after the full
consideration of the questions raised in the reference.

◈ Whether law declared by the Supreme Court to be binding on all Courts?

◈ Article 141 says that the law declared by the Supreme Court shall be binding on all the
courts within the territory of India.

◈ Is Supreme Court bound by its own decision?

◈ The expression “all courts, ‘within the territory of India’ clearly means Courts other than
Supreme Court. Thus the Supreme Court is not bound by its own decision and may in proper
case reverse its previous decisions.
◈ This question was considered in detail by the Supreme Court in the case of Bengal Immunity
Co. v. State of Bihar, (1955). In this case the 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”.

◈ The Court also laid down the guidelines for overruling its earlier decisions. The Court said,
“The Supreme Court should not lightly dissent from its previous decisions. Its power of
review must be exercised with due care and caution and only advancing the public well
being in the light of surrounding circumstances of each case brought to its notice but it is not
right to confine its power within rigidly fixed limits. If on a re-examination it comes to the
conclusion that the previous majority decision was plainly erroneous then it will be its duty
to say so and not to perpetuate its mistake.

◈ Power to do Complete Justice: ART 142, 144, 141

◈ Article 142 provides that the Supreme Court in exercise of its jurisdiction may pass such
decrees or orders as is necessary for doing complete justice in the matter pending before it.
The power under Art. 142 is inherent power and can be used for doing complete justice. The
decree or order made by the court shall be enforceable throughout the territory of India in
such manner as may be prescribed by or under any law made by Parliament. Until provision
is made by Parliament the orders of the Court will be enforced in the manner prescribed by
the President.

◈ Article 144 provides “all authorities, civil and judicial, in the territory of India shall act in aid
of the Supreme Court.” The power under this Article is very wide and the court can
formulate legal doctrines to meet the ends of justice. The object is to enable the court to
declare law to give directions or pass such orders as are necessary to do complete justice.
Under Article 141, law declared by the Supreme Court to be binding on all the courts. 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 decisions and may in
proper case reverse its previous decisions.

◈ Article 142(1) contains no limitations regarding the causes or the circumstance in which the
power can be exercised nor does it lay down any condition to be satisfied before such power
is exercised. The exercise of the power is left completely to the discretion of the highest
court.

◈ In Delhi Judicial Service Assn. v. State of Gujarat, 1991, proceeding for contempt of court was
started against some police officials of Gujarat for assaulting, handcuffing and maliciously
prosecuting a Chief Judicial Magistrate. It was contended by the respondents that the
Supreme Court had no power to quash the criminal proceedings against the CJM. But the
Court held that its inherent power under article 142 coupled with the plenary and residuary
power under Articles 32 and 136 give its power to quash criminal proceedings pending
before any Court to do complete justice in the matter before Supreme Court. The Court not
only sentenced the police officers but also quashed the criminal proceedings against CJM.

◈ In Spencer & Co. v. Vishwadarshan Distributors, (1995), Supreme Court has held that under
Article 141, 142 and 144 an order of the Supreme Court even if it is in the form of request, is
binding on High Court and if it is flouted by the High Court it is open to the Supreme Court to
initiate contempt proceeding against the erring judges of the High Court. The Supreme Court
has a singular Constitutional role and Correspondingly all authorities, civil, or judicial in the
 territory of India have assisting role towards it. In this case the Supreme Court had
requested the Madras High Court to dispose the case of the appellant within three months.
This order was passed on 14.1.1994. The Supreme Court kept the matter adjourned from
time to time awaiting the order of the High Court. But the High Court on 18.8.1994 passed
the order that the appellant must come in his turn as large number of appeals were pending
in the Court.

◈ Power to Review: Under Art. 137

◈ Under Art. 137, the Supreme Court has power to review any judgment pronounced or order
made by it. But this special power is, however, exercisable in accordance with, and subject
to any parliamentary legislation and rules made by the Court itself under its rule making
power.

◈ Under Art. 145(e), the Supreme Court is authorised to make rules as to the conditions
subject to which the Court may review any judgment or order on the grounds mentioned in
Order 47, Rule 1 of Civil Procedure Code

According to the rules of the Court, in a civil proceeding, review of a Court decision will lie on the
following grounds:

(1) discovery of new and important matter of evidence;

(2) mistake or error apparent on the face of the record;

(3) any other sufficient reason, e.g., that there are in the judgment certain unmerited observations
against the petitioner

◈ The Apex Court has clarified that a review is by no means an appeal in disguise. The Court
has justified review of its own judgment with the following remarks:

◈ "Review literally and even judicially means re-examination or reconsideration. Basic

philosophy inherent in it is the universal acceptance of human error... 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."

◈ In Hindustan Sugar Mills v. State of Rajasthan, the Court accepted the review petition
because the assumption on which it made certain observations in the earlier decision was
shown to be baseless. These observations were, therefore, deleted from the judgment.

◈ TRANSFER OF CASES

◈ To facilitate quick disposal of cases, Art. 139A(1) provides that if cases involving substantially
the same questions of law are pending before the Supreme Court and a High Court, or
before two or more High Courts, the Supreme Court can withdraw the cases from the High
Courts and decide them itself. Once the common issue of law is decided, the cases may be
returned to the High Courts under the proviso to Art. 139A (1) to decide individual cases in
the light of the law so laid down.

◈ Clause (2) of Article 139-A empowers the Supreme Court to transfer cases, appeals or other
proceedings from any High Court to another High Court if it thinks it expedient to do so for
the end of justice.
 ◈ In Union of India v. Shiromani Gurdwara Prabandhak Committee, 1986, a suit for damage
filed in Punjab against Union of India for the loss of Gurudwara properties by respondents as
a result of operation blue star. Union of India filed a transfer petition before the Supreme
Court on the ground that fair trial in Punjab would not be possible in view of extraordinary
situation prevailing in there. In view of the unusual and sensitive nature of the suit the Court
transfer the case to Delhi H. Court.

◈ Independence of the judiciary

◈ Independence of the judiciary means that the judiciary as an organ of the government
should be free from influence and control of the other two organs i.e. the executive and the
legislature, of the government. Freedom from the influence and control of the executive is
of crucial importance. Every democratic country adopts various means to ensure freedom of
the judiciary and thereby to ensure individual freedom. The Constitution of India has
provided for an independent and impartial judiciary in India as it can only protect the rights
of the individual and provide equal justice to all without fear or favour.

◈ Need for the independence of the judiciary

1. To check the functioning of the organs: Judiciary acts as a watchdog by ensuring that all the
organs of the state function within their respective areas and according to the provisions of
the constitution. Judiciary acts as a guardian of the constitution and also aids in securing the
doctrine of separation of powers.

2. Interpreting the provisions of the constitution: It was well known to the framers of the
constitution that in future the ambiguity will arise with the provisions of the constitution so
they ensured that the judiciary must be independent and self-competent to interpret the
provision of the constitution in such a way to clear the ambiguity but such an interpretation
must be unbiased i.e. free from any pressure from any organs like executive.

3. Disputes referred to the judiciary: It is expected of the Judiciary to deliver judicial justice and not
partial or committed justice. By committed justice mean to say that when a judge emphasizes on a
particular aspect while giving justice and not considering all the aspects involved in a particular
situation. Similarly judiciary must act in an unbiased manner.

The framers of the Indian Constitution at the time of framing of our constitution were concerned
about the kind of judiciary our country should have. This concern of the members of the constituent
assembly was responded by Dr. B.R. Ambedkar in the following words: “There can be no difference
of opinion in the House that our judiciary must be both independent of the executive and must
also be competent in itself. And the question is how these two objects can be secured”.

◈ Judicial Independence: How Maintained

◈ Constitutional provisions –

1. Security of Tenure: The judges of the Supreme Court and High Courts have been given the
security of the tenure. Once appointed, they continue to remain in office till they reach the age of
retirement which is 65 years in the case of judges of Supreme Court and 62 years in the case of
judges of the High Courts. They cannot be removed from the office except by an order of the
President and that too on the ground of proven misbehavior or incapacity. A resolution has also to
be accepted to that effect by a majority of total membership of each House of Parliament and also
by a majority of no less than two third of the members of the house present and voting. Procedure is
so complicated that there has been no case of the removal of a Judge of Supreme Court or High
Court under this provision.

2. Salaries and Allowances: The salaries and allowances of the judges is also a factor which makes
the judges independent as their salaries and allowances are fixed and are not subject to a vote of the
legislature. They are charged on the Consolidated Fund of India in case of Supreme Court judges and
the Consolidated Fund of state in the case of High Court judges. Their emoluments cannot be altered
to their disadvantage except in the event of grave financial emergency.

3. Powers and Jurisdiction of Supreme Court: Parliament can only add to the powers and
jurisdiction of the Supreme Court but cannot curtail them. In the civil cases, Parliament may change
the pecuniary limit for the appeals to the Supreme Court. Parliament may enhance the appellate
jurisdiction of the Supreme Court. It may confer the supplementary powers on the Supreme Court to
enable it work more effectively. It may confer power to issue directions, orders or writs for any
purpose other than those mentioned in Art. 32. Powers of the Supreme Court cannot be taken away.
Making judiciary independent.

4. No discussion on conduct of Judge in State Legislature / Parliament: Art. 211 provides that there
shall be no discussion in the legislature of the state with respect to the conduct of any judge of
Supreme Court or of a High Court in the discharge of his duties. A similar provision is made in Art.
121 which lays down that no discussion shall take place in Parliament with respect to the conduct of
the judge of Supreme Court or High Court in the discharge of his duties except upon a motion for
presenting an address to the President praying for the removal of the judge.

5. Power to punish for contempt: Both the Supreme Court and the High Court have the power to
punish any person for their contempt. Art. 129 provides that the Supreme Court shall have the
power to punish for contempt of itself. Likewise, Art. 215 lays down that every High Court shall have
the power to punish for contempt of itself.

6. Separation of the Judiciary from the Executive: Art. 50 contains one of the Directive Principles of
State Policy and lays down that the state shall take steps to separate the judiciary from the executive
in the public services of the state. The object behind the Directive Principle is to secure the
independence of the judiciary from the executive. Art. 50 says that there shall be a separate judicial
service free from executive control.

◈ State Judiciary
High Courts
(ARTICLES- 214-237)

◈ The Judiciary in states consists of a High Court and a system of Courts subordinate to the
High Court.

◈ THE HIGH COURT : Article 214 provides for a High Court in every State which works under
the Supreme Court of India. However, under Article 231(1), Parliament can establish by law a
common high Court for two or more states or for two or more states and a Union Territory.

◈ Composition of the High Court- Article 216 - The High Court consists of the Chief Justice and
such other judges as the President may appoint from time to time. In this way, the number
of judges in a High Court is flexible and it can be settled by the Central Executive from time
to time keeping in view the amount of work before a High Court.

◈ Appointment:Art.-217
◈ The judges of the High Court are appointed by the President of India. The President appoints
the Chief Justice of a High Court after consultation with the Chief Justice of India and the
Governor of the State concerned. In case of appointment of a judge other than the Chief
Justice he would consult even the Chief Justice of the High Court concerned.

◈ In S.P. Gupta & Others v. Union of India, 1982, popularly known as judges transfer case the
question was whether in appointing the additional judges of the High Court the President
was bound by the advice of the Chief Justice of India. Under Article 217 the President is
obliged to consult the three functionaries, the Chief Justice of India, the Chief Justice of High
Court and the Governor of the State.

◈ In the present case, the matter is extending the term of additional judge Mr. Kumar of Delhi
High Court. After Consultation Chief Justice of the Delhi High Court recommended not to
extend the term of Mr. Kumar as additional judge of Delhi High Court on the basis of the
charge of bribery leveled against him. On the other hand Chief Justice of India
recommended extension of Mr. Kumar on the basis that no material had been shown to
support the charge of bribery. However, the President had relied on the advice of the Chief
Justice of Delhi High Court in non extending the term of the additional judge Mr. Kumar of
Delhi High Court.

◈ The Court by 4:3 majority held that non-extension of the term of Sri Kumar as additional
judge of Delhi High Court was valid. The Central Government had taken the decision not to
give extension to Mr. Kumar on the basis of the charge of bribery leveled against him by
Chief Justice of the Delhi High Court. The Chief Justice of India, However, recommended the
extension of Mr. Kumar on the basis that no material had been shown to support the charge
of bribery.

◈ In this context the majority held that the opinion of the C.J. of India had no primacy over the
opinion of the Chief Justice of the High Court under Article 217. All the three functionaries,
Chief Justice of the High Court, Chief Justice of India, and the Governor of a State are given
equal importance in the consultation process and there is no superiority over the opinion of
one over that of another.

◈ The court held that the meaning of the term “consultation” does not mean concurrence and
the President is not bound by it. If he differs from the opinion expressed by the judges whom
he consult and take a contrary view this meant that the ultimate power to appoint judges
was vested in Executive.

◈ S.C. Advocates-on-record v. Union of India

◈ In re Presidential Reference

◈ Transfer of judges from one High Court to another- Article 222 (1) empowers the President
after consultation with the chief Justice of India to transfer a Judge from one High Court to
any other High Court. Clause (2) makes provisions for the grant of compensatory allowance
to a judge who goes on transfer to another High Court.

◈ Qualifications - A person to be qualified for appointment as Judge of a High Court—(a) must

be a citizen of India, (b) must have held a judicial office for at least ten years, in the territory
of India, (c) must have been an advocate of High Court for at least ten years.
 ◈ Term and removal of Judges.—A Judge of the High Court shall hold office until he attains the
age of 62 years. If a question arises as to the age of a Judge of a High Court, then it shall be
decided by the President after consultation with the Chief Justice of India and the decision of
the President shall be final. A Judge may, however, be removed from the office by the
President in the same manner and on the same grounds as a Judge of the Supreme Court.
The office of a Judge falls vacant by his being appointed by President to be Judge of the
Supreme Court or being transferred to any other High Court. A Judge may also resign his
office by writing to the President.

◈ Jurisdiction of the High Court

(a) A Court of Record.—Article 215 declares that every High Court shall be a Court of record and shall
have all powers of such a court including power to punish for its contempt. The scope and nature of
the power of High Court under this Article is similar to the powers of the Supreme Court under
Article 129.

(b) General Jurisdiction.—Article 225 says that subject to the provisions of the Constitution and to
the provisions of any law of the appropriate Legislature (a) the jurisdiction of the High Court, (b) the
law administered in the existing High Court, c) the powers of the Judges in relation to the
administration of justice in the courts, (d) the power to make rules of the High Court shall be the
same as immediately before the commencement of this Constitution. Thus the pre-Constitutional
jurisdiction of the High Court is preserved by the Constitution. Art. 225 thus gave jurisdiction over
revenue matters. In pre-Constitution period the decisions of the Privy Council were binding on all the
High Courts under section 212 of the Government of India Act. The effect of the present Article is the
same and they are still binding on the High Courts .

◈ Powers of superintendence over all courts

(C) Powers of superintendence over all courts by High Courts.— Under Article 227 every High Court
has the power of superintendence over all courts and tribunals throughout the territory in relation
to which it exercises jurisdiction. For this purpose, the High Court may call returns from them, make
and issue general rules and prescribe forms for regulating the practice and proceedings of such
courts and prescribe forms in which books, entries and accounts are to be kept by the officers of
such courts, and settle table of fees to be given to the clerks, officers, attorneys, advocates and
pleaders. However, this power of superintendence of High Court does not extend over any Court or
Tribunal constituted by any law relating to the armed forces.

◈ The power of superintendence conferred on the High Court by this Article is a very wide
power. This power is wider than the power conferred on the High Court to control inferior
courts through writs under Art. 226. It is not confined to administrative superintendence but
also judicial superintendence over all subordinate Courts within its jurisdiction. This power
of superintendence conferred on the High Court by Article 227 being extraordinary to be
exercised most sparingly and only in appropriate cases in order to keep the subordinate
Courts within the bounds of their authority and not for correcting mere error of fact,
however, erroneous those may be. The main grounds on which the High Court usually
interferes are when the inferior courts act arbitrarily or act in excess of jurisdiction vested in
them, or fail to exercise jurisdiction vested in them, or act in violation of principles of natural
justice or if there is error of law apparent on the face of record.

◈ Writ Jurisdiction of the High Court Article 226

◈ Article 226 provides that notwithstanding anything in Article 32 every High Court shall have
power, throughout the territorial limits in relation to which it exercises jurisdiction to issue
to any person or authority including the appropriate cases, any Government, within those
territories, direction, orders of writs, including writs in the nature of Habeas Corpus,
mandamus, prohibition , qua warranto and certiorari or any of them- (a) for the
enforcement of fundamental rights conferred by part III, and (b) for any other purpose.

◈ Thus the jurisdiction of a High Court is not limited to the protection of the fundamental
rights but also other legal rights as is clear from the words “any Other Purpose”. It means
High courts jurisdiction under Article 226 to issue writs is wider than the Supreme court
jurisdiction under Article 32.

◈ In L. Chandra Kumar v. Union of India, 1997, the Supreme Court has held that the power of
judiciary over legislative action vested in the High Court under Article 226 of the Constitution
is basic feature of the constitution and therefore it cannot be ousted or excluded even by
way of a constitutional amendment. Accordingly, the Supreme Court declared clause (2) (d)
of Art. 323-A and Clause (3) (d) of Art. 323-B as unconstitutional to the extent that they
excluded the jurisdiction of the High Courts under Arts. 226 and 227 of the Constitution.
These clauses had excluded the jurisdiction of the High Courts over the Service Tribunals
established under the Administrative Tribunal Act, 1988.

◈ The writs mentioned in Article 226 are known as prerogative writs because they had their
origin in the prerogative power of superintendence over its officers and subordinate courts.

◈ Who can apply.- Locus Standi. – The traditional rule is that the right to move the Supreme
court is only available to those whose fundamental rights or legal rights are infringed. But
the Supreme Court has now considerably liberalized the above rule of locus standi. The
Court now permits the public spirited persons to file a writ petiton for the enforcement of
constitutional and statutory rights of any other person or a class is unable to invoke the
jurisdiction of the High court due to poverty or any social economic disability.

◈ In S.P. Gupta v. Union of India, 1982, Supreme court held that any member of the public
having “sufficient interest” can approach the Court for the enforcing constitutional and legal
rights of those who cannot go to court because of their poverty or other disabilities. A
person need not to come to the Court personally or through a lawyer. He can simply write a
letter directly to the Court complaining his suffering.

◈ Scope of Article 226 – Speaking on the scope of this power of the High Court in T.C. Basappa
v. Nagappa, 1954, the Supreme Court held that Art. 226 confer wide powers on the High
Courts to remedy injustice wherever it is found. The Constitution has purposely used wide
language in describing the nature of the power, the purpose for which and the person or
authority against whom it can be exercised. The scope of writs is widened by the use of the
expression nature of habeas corpus, mandamus, prohibition, certiorari and quo warranto, or
any of them, for the enforcement of the rights conferred by part III and for any other
purpose. Apart from that, High Courts can also issue directions, order or writs other than the
prerogative writs.

◈ The power of High Court is not confined only to issuing of the writs, it can issue a suitable
“direction” or “order” to any person or authority within its jurisdiction. Thus Art. 226
enables the High court to examine the action of administrative and executive officials and to
give relief to an aggrieved person.
◈ Court- Martial and Article 226- In Union of India v. R.K. Sharma, it has been held that when
an army officer is found to be guilty of the charges made against him it is not open for the
court to interfere with the sentence awarded by the Court Martial while exercising powers
under Article 226 and 227 or under Art. 32 of the constitution. It is only in extreme cases
which on their face show perversity or irregularity that there can be judicial review. The
Court should not interfere merely on compassionate ground.

◈ Dispute between private parties- No jurisdiction.- In Mohan Pandey v. Usha Rani, 1992, it
has been held that the extraordinary jurisdiction of the High Court under Art. 226 cannot be
exercised for deciding dispute between private parties relating to property rights, unless
there is violation of some statutory duty on the statutory authority alleged. A regular suit is
the appropriate remedy for settlement of dispute between private persons. The High Court
cannot allow the constitutional jurisdiction to be used for deciding dispute, for which
remedies under the general law, civil or criminal, are available.

◈ Discretionary Remedy : Not to be exercised if alternative remedy available.- The remedy

provided for in Article 226 is a discretionary remedy and the High Court has always the
discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an
adequate or suitable relief elsewhere. This remedy cannot be claimed as a matter of right.
The High Court must exercise its discretion on judicial consideration and on well-established
principles.

◈ The existence of an alternative adequate remedy is, however, no bar to the exercise of writ
jurisdiction where the relief is invoked in case of infringement of fundamental right, or
where there is complete lack of jurisdiction, or where the order has been passed in violation
of natural justice by the subordinate Court.

◈ Five Writs