the Ptotdent.

Chief lustice appointed bv the Pre«ident with the consultation of such

et- Coutt 01' Coutt aq he dectn nece«nrv. In appointment of other iudgesth
u sn€ult the Cluct• lust tee of' India.

the tettn it was intevptete€lthat I'rc<ldent not bound to act in

ۥnsultation. In Union of India Sank a/chand Seth, AIR 1977SC 2328,the
held that 'ۥnsultation tull and ivc It not mean concurrence

Prestdent not bound such consultation. In S.lh Gupta v. Union of India, AIR 1982SC 149
case transfer casö the Supretne Court agreccl with the opinion in
took the that in substance the opinions of the Chief Justice of India and the Chief
the Court merelyconsultativeand the power of appointment resides solely and
the Central government. This meant that executive had supremacy_in appointment of
The Of SORtnment could only be challenged on the grounds of mala fides or based on
considerations. In effect decision in S.P. Gupta 's case gave absolute primacy to the government
-o.o.:ntrnent ofiud•es. This also meant that the President's power to appoint judges OfSupreme Court
of formal nature. The President acted in this matter as in any other matters i.e. on the adviceof
Council of Ministers.

In Subhash Sharma v. Union of India,

AIR 1991SC 631,there was shift in approach. SUpreme
Court expressed its view that the role of institution
of the ChiefJustice of India must be recognized in the
of appointment of Judges of Supreme Court. An independent non-political judiciary is a crucial
component of democracy. Subsequent to this case the question of process of appointment of judges
of
Supreme Court came to be consideredin Supreme
Court Advocates on Record Association v. Union
of India, (1993) 4 SCC 441 (alsoknown as 2ndJudgescase).

In this case Supreme Court overruled the decision in S.P. Gupta's case. The court
held that in the
matters of appointment of judges of Supreme Court and High Courts the Chief Justice
of India should
have primacy. The court held that the question of selection of judges has to be
considered in the light of
achieving the constitutional purpose of selecting the best and suitable composition
for the court. The court
held that the Chief Justice of India is best equipped to know and assessthe worth
of the candidate. It is also
necessaryto eliminate political influence

The selection should be made as a result of participative consultative process.

Greatest significance
should be attached to the opinion of the Chief Justice which is formed after
taking into account the views
of two senior-most Judges ofthe Supreme Court. In such process executive
should only act as a check on
exercise of power by Chief Justice of India. Only in exceptional circumstancesand
for strong and cogent
reasons the names recommended by ChiefJustice of India may not be appointed. This process ensured
that absolute discretion is not given to anyone, not even the Chief Justice of India.

158 Samarth Agrawal Ikx»ks

 Constitutton of Indta

held that initiation of the for appointmcnt ofa

disclosed to the
Only in exceptional circumstances and for cogent
Howcvcr, if such
,ointmcnt Of the rccommcndcd candidate may not bc madc.
the then as a
the Chief Justice and the recommendation for appointment is reitcratcd
the should be made. court further held that the appointment
Judges
oflndia should be made on the basis of seniority. Interse seniority among the High Court
combined'All India seniority' should be kept in view and given due weight wnile making the
fromamongst the High Court Judges to the Supreme Court.
Court
Later,in re Presidential reference, AIR 1999 SC I, (alsoknown as 3rdJudgescase)Supreme
certain points arising from 2ndJudgesCaseand lid down the following propositions:-
l. The consultation process to be adopted by the Chief Justice of India requires consultation of
plurality of iudges.The sole individual opinion of Chief Justice does not constitute consultation.

2. With regard to the appointment of SupremeCourt Judge,and transfer of a High Court Judge
the Chief Justice of India should consult a collegium of four seniormostJudges of the Supreme
Court. The collegiums must include successor Chief Justice of India. If two Judges give adverse
opinion then the ChiefJustice should not send the opinion to the government. Opinion of all
members of the collegiums must be in writing.
3. Viewof such Supreme Court judge who hails from the High Court from where the person
recommended comes must be obtained in writing for the consideration of the collegiums.
4. In regard to the appointment of High Court Judge the collegium should consist of Chief Justice
of India and two senior most Judge.The recommendations of the collegiums should be based
on consensus and unless it is in conformity with the opinion of Chief Justice of India,
recommendationshould not be made.
5. Supreme Court made it clear that recommendation for appointment without following the
consultation process is not binding on the government.
National Judicial Appointments Commission [99thConstitution Amendment, 20141:Law Com-
in its 121streport in 1987 advocated the setting up of a Judicial Commission for appointment of
mission
Later,National Commission to Reviewthe Working of the Constitution in its report submitted in
judges•
as to
2002Opinedthat a National Judicial Commission should be constituted for making recommendation
theappointmentof judges of superior court.
Commission vide 99thConstitution
In 2014union government setup National Judicial Appointments
and 128 and inserted Articles 124A 124B and 124C.
Amendment,2014. It amended Articles 124(2). 127
Judge of the Supreme Court is to be appointed by
Accordingto new provision under Article 124(2)every
ointments Commission. Article 124Apro-
thePresidenton the recommendation of National udicialA
 Examinations : Volume//
A G'(tdc to.ludt(ia/ St•tviüd€
Mains

Coronussion, Article 124B laid clown

Afded tot the eon<itution of National Judicial Appoint
Parliament to regulate the procedure
of the and Attide 1200 etnpowcvcclthc f
confcrrccl under Articlc 124C the Parliament
appointn)cnß IV tnaking law. In light of' power
enacted NMional Judicial Appoint tncnß Conunission Act, 2()14.
Association v. Union of India, (2016)
However,In Supreme Court Advocatcson-Rccord 5
Amcndmcnt as wclJ as thc NJAC Act, 2014
SCC 1, Suprcmc Court declared both thc 99th Constitutional
systcrn bccamc opcrativc again. Th c court
as unconstitutional and void. Consequently, the carltct' collegium
Supreme Court hcld that these
opined that the IN.)ACwould affect the indcpcndcnccof the judiciary.
pnm6s10nsNfolatedthe basic structure of the Constitution.
and it is no longer a good lav,
Note: Simi' t)vpovisions relating to NJAC have been declared unconstitutional
dttaiirå åcs•iption Qftlr satnc is notgivcn here.

Qualification of Supreme Court Judges

Article 124(3)provides the following qualiflcations:-

(a) Person should be a citizen of India;

(b) He has been atleast for fiveyears a Judge of a High Court or two or more High Courts in
successron; or

(c) He has been for atleast 10 years an advocate of a High Court or of two or more such courts in
succession; or
(d) He is, in the opinion of the President, a distinguished jurist.
Oath

Article 124(6)provides that every person appointed to be a Judge of Supreme Court shall,
before he
enters upon his office, make and subscribebefore the President or some other ersona
ointed in that
behalf by him, an oath or affirmation according to the form set out in Third
Schedule.
Tenure, Resignation and Removal of Judges
Article 124(2)provides that a Judge of Supreme Court holds the
office until he attains the age Of65
vears. The age of a Judge of the Supreme Court shall be determined
by such authority and in such manner
as the Parliament may by law provide.

Resignation: A Judge of Supreme Court may resign his

office by writing under his hand addressed
to the President. [Article

Removal of Judges
Question of removal of judge is of great importance.
This question is intrinsically linked with the
independence of judiciary. It is because, if the removal
process is made very easy and
the power is given to
160 Samanh Agawal Bcx)ks
 Constitutiono//ndia

to without difficulty judiciary will its and it will come

directcontrol of executive,
providc« that a Judge tnay bc rcmovcd from his office in the manner provided in
124(4).Articlc 124(4)pvovidccthc proccduvc for tctnoval of a Supreme Court Judge. It lays down

theludgcofthc Suprcmc Coutt shall bc rctnovcd by an ordcr of thc President only on the ground of
and incapacity. The word 'provcd' indicatc that thc address can bc presented by the
only aficr thc allcgcd charge of misbchavior or incapacity against a judge has been investigated,
and establishedby an irnpartial tribunal.
proccdurc: The order of the President can only be passed when it has been addressed to both
of Parliament in the same session. The address must be supported by a majority of total member-
shipof that House and also by maiority of not less than two-thirds of the members of that House present
voting.Article 124(5) further provides that Parliament may by law regulate the procedure for the
of an address and for the investigation and proof of the misbehavior or incapacity of a Judge

parliament has passed Judges (Inquiry) Act, 1968,which lays down the procedure for removal of the
supremeCourt and High Court Judge. It regulatesthe procedure for investigation and proof of misbe-
or Incapacity of judge for presenting an address by the Houses of Parliament.

A notice of the motion for presenting an addressfor removal may be given by 100 members of the
or
LokSabhaor 50 members of the Rajya Sabha.The Speakeror Chairman may either admit the motion
refuseto admit the motion. If the motion is admitted, then the Speaker/Chairman constitutes a committee
consistingof a Supreme Court Judge, a ChiefJustice of High Court and a distinguished jurist. The com-
mitte€frames definite charges against the judge. A reasonable opportunity of being heard along with
opportunityto cross-examine witnesses is given to the concerned judge.

After the completion of inquiry the committee presents the report to the concerned House of Parlia-
ment In this scenario, following two possibilities are present:-

1. Committee exonerates the judge of the charges leveled against him/her;

2. Committee finds the concerned judge guilty.
In the first case scenario, no further action is to be taken on the motion of removal. However, in the
second casescenario the motion may be taken up by the House, If the motion is adopted in same session
by both the Houses by a majority of total membership of that House and also by maiority of not less than
two-thirdsof the members of that House present and yoting then it is presented to the President for the
removalof the judge.SupremeCourt in Sub-Commlttee of Judicial Accountability v. Union of
India, (1981)4 SCC 399 held that the motion for removal Ofjudge under Article 124 does not lapse with
thedissolutionof the House.
 : VolumeIl
strvictsMains
14 Guidr 4 SCC 506 held that if
of India, (1992)
v. Union and the Parliament is
Supreme in Snro/ini
the matter goes to the Parliament
guiltythen
finds of judge after considering
to
motion for rcmoval
up thc
In may decide not to take may be made only on a
the finding of 'guilty'
the of also held that the
matter. hcld that majority. Suprcmc
Court
motion by rcquisitc
ground only after the adopts tribunal for the
Act cannot be treated as a
(Inquiry)
Committee appointed
of Article 136.
of Record
Supreme Court to be Court
powers of such
of record and shall have a
Article 129 provides that Supreme Court shall be a court
recordsare
of record is a court whose
court including the power to punish for its contempt.A court
the court.
when they are produced before
admitted to be Of value and they are not questioned
court of record.
Powerto unish for contem t necessaril followsfrom the osition of
MonobborHussain, AIR 2012
Supreme Court in West Bengal Adminisüative Tribunal v. S.K.
of its authority. This is an
SC 2250 held that the court has summary jurisdiction to punish for the contempt
Singh v. Subrata Roy
extraordinary power only to uphold the majestyof judicialsystem.In Rajeshwar
Court under Article 129 is
Sahara, AIR 2014 SC 476, Supreme Court held that jurisdiction of Supreme
independent of the provisions of Contempt of Court Act, 1971.
Supreme Court in 0m PrakashJaiswaI v. D.K. Mittal, AIR 2000SC 1136explained the need for
the concept of contempt of court. The court explained that availabilityof an independent judiciary and an
atmosphere wherein judges may act independently and fearlesslyis the source of existence of civilization in
society. Any act or omission which undermines the dignity of the court must be viewed with concern by the
society and the court must treat it as an obligation to zealously guard against any onslaught on its dignity.

Contempt of court is characterized either as civil or criminal. Civil contempt is any willful disobedi-
ence of an order of court to do or to abstain from doing any act. Criminal contempt includes outrages on
judges in open court, defiant disobedienceof judgesin the court, casting unwarranted, uncalled for and
unjustified aspersions on the judges in discharge of judicial functions.

Contempt of court is not committed if a person publishesany fair comment on the merits of any
case, but in the guise of criticism of a judgment, personal criticism of judge is not permissible. Supreme
Court in Subramanian Swamy v. Arun Shourie, (2014)12SCC 344clarifiedthat no limitation can be
read into Article 129 of the Constitution. Supreme Court has unlimited power to compel obedience and
observance of its orders. [Subrata Roy Sahara v. Union of India, (2014)8 SCC 4701

162 Sama ahAgawal

 Comtitutionof lydia

Courtin Supreme Court Bar Association v. Union of India, AIR 1998SC 18950b
the palliatncnt can tnake law undet lintty 77 I with regard to the contempt of Supreme
d prescribe the procedure to be (V)llowcd,tnaximum punishment and otwr matters. How-
theParliamentcannot abtÅdgcot extinguish the or power con ferrcd on Supreme Cnurt by
to punish for it« contetnpt is inherent in the court by virtue of being a court of

ignd Parliament cannot take away this inherent iuti«diction.

of subordinatccourts:In Delhi Judicial Scrvicc Association State of Gujarat,
4 SCC406,Supreme Court held that under Article 129 the Supreme Court has power to punish
the contempt of itsclfas well as its subordinate courts. Court emphasized that the subordinate
administerjustice at the grass root level and therefore, their protection is necessary to preserve the
of people in the efficacy of the courts.
-,nfidencc
contempt of High Court: In re Vinay Chandra Mishra, (1995)2 SCC 584 Supreme Court clari-
of High
thatunder Article 129 the Supreme Court is empoweredto take cognizance of the contempt
Court
also.In Supreme Court BarAssociation v. Union of India, AIR 1998SC 1895Supreme
an advocate
that under Article 129 Supreme Court has no power to suspend the practice licence of

heldguiltyin contempt of court.

Jurisdiction of the Supreme Court

Jurisdictionof the court can be classifiedinto followingbroad categories:-

Jurisdiction AppellateJurisdiction AdvisoryJurisdiction

Original
[Articles 132-134and 136] [Article 1431
Ikticle 131]

Jurisdiction in Jurisdictionin Special Leave

in
jurisdiction
Civil matters Criminalmatters to Appeal
ConsåtuåonaJ
[Article 1331 [Article 1341 [Article 1361
matters
(Artåcle 132)

OriginalJurisdiction
is essential to
In a federal polity the inter-governmentaldisputes are bound to arise, Therefore, it
Supreme Court
providean adjudicatory mechanism for resolution of such disputes, Article 131 authorizes
tosettleinter€overnmentaldisputes.Supreme(hurt in State of Karnataka v. Union of India, AIR 1978
SC68 held that Article 131 is a necessary concomitant of a federal or a quasi federal form of government.

Article 131 provides that the Supreme Court shall have the exclusiveoriginal jurisdiction in the follow-
ing matters if the dispute involves any o n which the existence or extent ofa legal
right depends.
 or

, or on one And one Or

of under Article 143 to Iny (lown the procedure

of and ordere by Supreme Court is provided by
nnt...l Order, 1954 issued by the President under Article 142(1)
In .Stptc of Nadu v. State ofKcrAlA, (2014) 12SCC 696 Supreme L)'ort held
seek to decide the dispute b,
the Pm•lnmcntot State trgisl*turc cannot / Pay
and 262 would become redundant.
9dtvd'Gtoty mcchaniemunder Article 131
Statc of Bihar v. Union of india, AIR 1970SC 1446Supreme Court held that under Article
(•annot bc tat-cn of a cult brought by a private citizen against government. No private party, be
firm. can bc Impjcadcd as a patty in a suit under Article 131, along with the State either jointly
altcrnative Thc court also held that dispute should not be of political character. As to the nature of
dispute SuprcmcGun tn State of Rajasthan v. Union of India, (1977)3 SCC 592 held thatdispute
must tnvo}vcasy.craon or vindication of a legal right. It is not necessarythat it must be a constitutional

Exclusion of original iurisdiction

The iunsdiction of Supreme Court does not extend to the following matters:-
i, Disputes arising out of any treaty, agreement,covenant, engagement, sanador similar instrument
which was executedbefore the commencementof the Constitution and continues to be
operauon or which provides that the jurisdiction of the Supreme Court shall not extend to such
dispute. tproviso to Article 131)
2. Parliament may by law exclude the jurisdiction ofthe Supreme Court in disputes with respect to
the use, distribution or control of the water of any inter-State river or river valley. [Article

Appellate Jurisdiction IArticles 132-134and 1361

Appellate jurisdiction of Supreme Court can be further categorizedinto following:-

J unsdicuon in Constitutional matters [Article 1321

Jurisdiction in Civil matters [Article 1331

Jurisdiction in Criminal matters (Article 1341
Special Leaveto Appeal (Article 1361

Jurisdiction iu Constitutional matters [Article1321

Article 1320) provides that an appeal shall lie to the Supreme Court
from any iudgment. decreeor
final order ofa court in the territory oflndia, whether in
a ciukgimiudecg!hg-pcec.ggdingifthe

164 Saaunh Ava wal ikx»ks

 Volume 11
Examinations :
Judiåa1ScrvicBMainf
A Commtdio,o Guide to
or
more States;
and one or
(a) Disputes between Government of India one side and one or
any statcs or states on
(b) Disputes Governmentof India and
other Stateson the othcr; or
(c) Disputes between two or more States.
Article 145 to lay down the procedure with
Supreme Court has framed rule of procedure under
and orders by Supreme Court is provided by
respect to original jurisdiction. Execution of decrees
Order, 1954 issued by the President under Article 1420)
preme Court (Decrees and Orders) Enforcement
(2014) 12 SCC 696 Supreme Court held
of the Constitution. In State of Tamil Nadu v. State of Kerala,
cannot seek to decide the dispute by way
in cases of federal disputes the Parliament or State Legislature of
131 and 262 would become redundant
legislation. In such a situation adjudicatory mechanism under Article
Court held that under Article 131
In State of Bihar v. Union of India, AIR 1970SC 1446Supreme
government. No private party, be
cogmzance cannot be taken of a suit brought by a private citizen against
with the State either jointly
it a citizen or a firm, can be impleaded as a party in a suit under Article 131, along
As to the nature of
or in alternative. The court also held that dispute should not be of political character.
dispute, SupremeCourt in State of Rajasthan v. Union of India, (1977)3 SCC 592 held that dispute
must involve assertion or vindication of a legalright. It is not necessarythat it must be a constitutional right.

Exclusion of original iurisdiction

The original jurisdiction of Supreme Court does not extend to the following matters:-
1. Disputes arising out of any treaty, agreement,covenant,engagement,gznador similar instrument
which was executedbeforethe commencementof the Constitution and continues to bc in
operation or which provides that the jurisdiction of the Supreme Court shall not extend to such
a dispute. [proviso to Article 131]
2. 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-Stateriver or river valley. [Article

Appellate Jurisdiction [Articles 132-134and 136]

Appellate jurisdiction of Supreme Court can be further categorized into

following:-
Jurisdiction in Constitutional matters [Article 132]

Jurisdiction in Civil matters [Article 133]

Jurisdiction in Criminal matters [Article134]

Special Leave to Appeal [Article 136]

Jurisdiction in Constitutional matters [Article1321

Article 132(1)provides that an appeal shall lie to
the Supreme Court from
any iudgment. decree or
final order of a High Court in the territoryof India,
whetherinacivil criminal or other roceedin ifthe
164 SamarålAgawal
 C,onetitrtiotp
of/"dia
under Article
that the
case
a substantial
of to thc
132(3)further provides that
such a
on the ground that certificatei,
relitc court any any in
is that appellant question
should ordinarily
4. ofBornbay v. confine
AIR 1966SC point
ofJarnrnu and Kashmir v. 14181
Ganga Singh,
this Article is that the AIR 1960SC 356
final authority Supreme heldthatthe
ofintcrprcting the
Constitutionmust with the
in Civil matters [Article 1331
fdiction
133(1) that an appeal
shall lie to the
Supremecourt from
in a proceedings ofa High any iudzment. decreeor
court in the territory
oflndia ifthe High court certifiesunder
•cle134-A that:-
Artl

(a) The case involves a substantial question

of law of general
importance; and
(b) In the opinion of the High Court such
question needs to be decided
by the Supreme Court.
Article133 discards the distinction between
appellate and original jurisdiction of the High Court. It
all judgments, decrees or final orders passed in either
includes
appellate or ordinary original jurisdiction OF
Court.For the purpose of Article 133(1),the proper test
to determinewhether a question of lav is
or not, is whether it is of general public importance or whether
gbstantial it directly or substantially affects
å:rightsof the parties.

shouldbe given by High Court when the question is of such pervasiveimport and deep significance
datinHigh Court's judgment it needs to be settled by the highest court of the country.

in Criminal matters [Article 1341

Juhsdiction
Ardcle134 confers a limited criminal appellate jurisdiction on the Supreme Court. Article 134provides
thatanappealshall lie to the Supreme Court from any iudgment. final order or sentencein a criminal
of a High Court in the territory of India if the High Court-
proceeding

(a) Has on appeal reversed an order of acquittal of an accusedperson and sentenced him to death;
or
subordinate to its authority and has
(b) Has withdrawn for trial before itself any case from any court
him to death; or
in such trial convicted the accused person and sentenced
for appeal to the Supreme Court.
(c) Certifies under Article 134-Athat the case is a fit one
165
Samadh Agawal mx»ks
 VolumeIl
Mains Eraminations :
A Comp•ndiomcGuide toJudicial Setwiccs
SC 415 hcld that certificate under this
Supreme Court in Singh v. State, AIR 1953 rticl
decision is erroneous. It is
should not bc granted as a matter of course on the tocrc ground that thc
Mohanlal v. State of to b
granted only when certain exceptionaland specialcircurnstanccscxist.In Gujarat
grantcd whcn a casc involves a substantial
AIR SC 733 Suprctnc court held that a certificate should bc
question of law and not merc question of fact.

Special I•avc to Appcal [Articlc 1361

In addition to the above mentioned provisions relating to appcllatc jurisdiction of Supreme Co

urt
Article 136 provides for appeal by special Icavc.Article 136 provides that Supreme Court may in its
tion. grant special leave to appeal from any ud ment decree determination sentence or order in any
or matter passed or made by any court or tribunal in the territory of India. Power of Supreme Court under
Article 136 is not affected by Articles 132, 133, 134 and 134A.

In NarpatSingh v. Jaipur Development Authority, (2002)4SCC 666 Supreme Court explained

the scope and character of power under Article 136.The court held that the exerciseof jurisdiction con.
ferred by Article 136 is discretionary. It does not confer right to appeal on a party to litigation. It is a power
to be exercised sparingly with caution and care and in extraordinarysituations occasioning gross failureof
justice. In Pritam Singh v. The State, AIR 1950SC 169Supreme Court held that generally the COUrt will
not grant special leave unless it is shown that exceptionaland special circumstances exist and graveand
substantial injustice has been done.

Article 136 uses the phrase 'any court' therefore it empowersthe court to hear appeals not only from
the High Court but also from the subordinate courts if a situation demands. In this connection, SUPreme
Court in Rajendra Kumar v. State, AIR 1980SC 1510observedthat the plenary jurisdiction OfSUpreme
Court to grant leave and hear appeals against any order of a court or tribunal confers power of judicial
superintendence over all courts and tribunals including subordinatecourts.

The word Corder' used in Article 136 is not qualified by adjective'final'. Thus, Supreme Court has the
power to har appeal even from an interlocutory or interim order. However,in practice the Supreme Court
ordinarily does not grant leaveto appealfrom an interlocutoryorder [seeGodfrey Phillips India Limited
v. GimarFoæ and Beverages (P) Ltd., (1998)9 SCC 531].
Article 136 does not define the nature of proceedingsfrom which the Supreme Court may hear
appeals. It can hear appeal from any kind of proceedingslike civil, criminal, tax matters, revenue matters,
labour matters etc. Supreme Court in Arunachalam v. PSR Setharathnam, AIR 1979SC 1406held that
the exercise of the power of Supreme Court under Article 136 is not circumscribed by any limitation as to
who may invoke it. Thus, the Special Leave Petition can be filed by a party to the decision and it can also be
filed by a party who though not a party to the impugned decision,but is adverselyaffected by such decision•
 Contti/"tion o/ India

of SLP: It been held in Rapil Me/tr;/ v, t/n/on of fnd/9, 2 qCC 262 that
is with tea«ons. thete a tncrger of the orclrrgof the court below with the order

136(2)pt•ovidcsthat special Icavcto appeal shall not be rnaintainable to ant/ Judgment, decree,
ct.,nination,scntcncc ov passed ov tnadc by any court or tribunal constituted by
Act
;umcd.totccs.
IAvticlc 1431
AdvisoryJurisdiction
Accordingto Avticlc 143 if at any time it appcars to thc Prcsidcnt that:-
(a) A question of law or fact has arisen or is likcly to arise, and
(b) The question is of such nature and of such public importance that it is expedient to obtain the
opinion of the Supreme Court upon it, he may refer the question for the Advisory opinion of
the Court and the Court may after such hearing as it thinks fit, report to the President its opinion.

SupremeCourt in re Kerala Education Bill, AIR 1958SC 956, has held that the court is not bound
the
to answera reference made to it by the President. The use of the word 'ma/ in Article 143(1) shows that
In re
supremeCourt is not bound to give advisory opinion in every case in which reference is made.
refuse to
special Reference No. 1 of 2012, (2012) 10 SCC 1 Supreme Court reiterated that the court may

giveits advisory opinion for strong and compelling reasons.

Court on any
The scope of Article 136 is quite broad. The President can seek the opinion of Supreme
which pertæn to
questionof fact or law. It is not necessary that the Presiden can refer only such questions
Tribunal, AIR 1992
hispowers,functions and duties. However,in re Matter of Cauvery Water Dispute
reconsider its previous
SC522Supreme Court clarified that under Article 143the court cannot be asked to
Kerala EducaEon
decisions.Court cannot convert its advisoryjurisdiction into appellatejurisdiction. In re
questions referred to
Bill, AIR 1958SC 956 Supreme Court has held that court has to confine itself to the
it bythe President and it cannot travel beyond reference.
proviso
Article 143(2)provides that if the President refers such matters which are excluded from the
opinion
ofArticle131 for the advisory opinion of the Supreme Court then the court will be bound to give
on it.

Other important matters

Powerto do complete justice

any order as is
According to Article 142(1),the Supreme Court is entitled to pass any decree or make
of
necessaryfor doing complete justice in any cause or matter pending before it. Explaining the scope
Article142Supreme Court in Zahlra Habibullah Sheikh v. State of Gujarat, (2004)5 SCC 353 held
 : VolumeJ/
servicesMainf
Gride
A short com pass of actual
limitcd to
is it should to such In supreme
with or rclatcd
bc that the Supreme
and SC 1895it was urt
ofJndiA, AIR 1998 arcas. It was in
Court Bar Association v. Union in ncbulous
also a problcm solvcr
is not to dispute scttling. It is to prevent injusticc,
Article 142 has
that thc court has
Singh v. Ram, (2015)3 SCC 177 injustlcc.
is obligcd to prcvcnt
court
potential and when the occaston anscs, in which the can
the causes or circumstances
Article 142(1)contains limitation regarding 1 SCC 333 has held that
Sudhir Batham, (2012)
Dayaram v.
exercised. Supreme Court in will directly conflict with
when such exercise
be exercised
power under Article 142 is not intended to supplement and not supplant
to
Power under Article 142 is meant
express of a statute. held that Article
(2000) 6 SCC 213 Supreme Court
law. In M.c. Mehta v. Kamal Nath, of specific provisions of any
it would amount to contravention
cannot be invoked in a situationwhere
statute.
Statutory provi_
of Article 142 is very wide and it can override any
The bottom line is that the scope
with any express
power in direct contravention
sions, however, in practice the court does not use this
self imposed restriction and the court can bypass it when apt
statutory provisions. Nevertheless, it is a
occasion anse.

Pover of review
made by the Parliament or any rule made
Ardcle 137 provides that subject to the provisions of any law
judgment pronounced or order
under Article 145,the SupremeCourt shall have powerto reviewany
made by it In S. Nagraj v. State of Kamataka, (1993)Supp. 4 SCC 595 Supreme Court held that review
literally and judicially means re-examination or reconsideration. Basic philosophy inherent in it is the univer-
sal acceptance of human fallibility. Rectification of an order stems from the fundamental principle that
justice is above all.

Supreme Court in Northern India Caterers v. Lt. Govemor of Delhi, AIR 1980SC 674 madeit
clear that a _partyis not entitled to see reviewof a judgment merely for the purpose of re-hearing and a
fresh decision of the case,The normal principle is that the judgment delivered is final and the departure is
justified only when the circumstances of a substantial and compelling character make it necessary to do so.
In Surendra Koli v. State of U.P., (2014)16 SCC 716 Supreme Court held that review petitions can only
be allowed by Supreme Court on the ground of error apparent on the face of record and when such error
may lead to miscarriage of justice. On same lines in Lily 'Ihomas v. Union of India, AIR 2000 SC 1650
Supreme Court held that power of reviewcan be exercisedfor correction of mistake and not to substitute
a view. It cannot be treated like an appeal in disguise.

168 Samardl Agawal

 Comstitutionof India

UnderArticle 145(e)Supreme Court is authorized

to frame rules as to thc conditions subjcct to which
thecourtmay rcvicw any judgment or order. According to the rules, rcvicwwill lic on thc following
civil procccdings:-
unds in
Discoveryof new and important matter of evidence;
1.

2.
Mistakeor error apparent on the face of record;

3. For any other sufficient reason.

similarly,in a criminal proceedingsreviewcan lie

on the ground of 'error apparent on the face of
record'.
curative petitions: The concept of curativepetition was
introducedby SupremeCourt in Rupa
Hurra v. Ashok Ilurra, (2002) 4 SCC 388. Even if the reviewpetition is rejected the court may still
entertaincurative petition under its inherent power. The court laid down the following grounds on which

curativepetition can bc filed:-

1. Variation of the principle of natural justice;

2. When the question of bias is involved;

3. Abuseof the processof the court

Restrictions: The court also imposed the following restrictions in filing curative petition:-

1. The grounds stated in the curative petition must have been taken earlier in the review petition;

2. A senior advocate must satisfy that the above requirements have been fulfilled;

3. If the court comes to a conclusion that the petition is without any merit and is vexatious, exemplary
cost may be imposed on the petitioner;

4. The petition has first to be circulated to a bench of three senior-most judges and the judges who
passed the judgment complained of. If a majority of these judges conclude that the matter needs
to be heard, it should be listed before the same bench.

Lawdeclaredby Supreme Court to be binding on all courts and Doctrine of Stare Decisis

Article141 provides that the law declared by the Supreme Court shall be binding on all courts within
the territoryof India. Therefore, all courts are bound to follow the decisions of the Supreme Court.
Judgmentsof Supreme Court constitute the source of law [All India Reporter Karamchari Sangh v. All
India Reporter Limited, AIR 1988SC 13251.Supreme Court in CCE v. Dunlop India Limited, AIR
1985SC 330 observed that in a hierarchical system of courts, it is necessary for each lower tier, including
HighCourt to accept loyally the decisions of the higher tiers. The better wisdom of the court below must
yieldto higher wisdom of the court above.
 A Compendious Ggide toJudicial SOT'ictsMains Examinations : VolumeIl

In State of Andhra Pradesh

v. A. P. AIR 2001 SC 499 Supremc Court observed that
tency is the cornerstone of the
administrationOfjustice. It crcatcs confidence in the legal system.With
view to achieve consistency
in judicial pronounccmcnts, the courts havc cvolvcd the rule Of Precedents
principle of-stare deåsis etc.

Article 141 gives the constitutional

status to the thcory ofprcccdcnts in rcspcct Ofthc law declared b
the Supreme Court. In General
Manager, Northern Railway v. Sarvesh Chopra, (2002)4 SCC45
Supreme Court observedthat a
decision of SupremeCourt is an authority for the proposition Whichit
decidesand not for what it has
not decided.SupremeCourt in Kalyan Chandra Sarkar v. Rajesh Ranjan
(2005) 2 SCC 42 clarified that
a decision which is not expressand is not founded on reasons nor which
proceeds on consideration of the
issuescannot be deemedto be a law declared to have a binding effect
under Article 141.

In Bengal Immunity v. State

of Bihar, AIR 1955SC 661,SupremeCourt held that SUpremeCourt
can depart from its previous
decisions.The expression'all courts within the territory of India' meansall
courts except Supreme Court.
Therefore, Supreme Court is not bound by its decision and in proper caseit
may reverse it.

Doctrine of Stare Decisis. Doctrine of

staredecisisenvisagesthat judicial decisions have a binding
force for the future. This doctrine is
a characteristicfeature of English Common Law. It envisagesthat the
lower courts are bound by the decisions of
higher courts. It must be noted that the whole judgment is not
binding only the ratio decidendiis considered to be
binding. According to Keeton, the ratio decidendiof a
decision is the principle of law formulated by the judge for the purpose of deciding the problem before
him. On the other hand obiterdicta are an observationmade by the judge which is
not essential for the
decision reached.
According to the principle of consistency of law, a division bench ought to follow
thee earlier decision
of a larger bench. The decision of constitution bench is binding on all smaller
benches. In Sub-Committee
of Judicial Accountability v. Union of India, (1992)4 SCC47 Supreme
Court held that co-ordinate
bench of Supreme Court cannot comment on a judgment renderedby another
co-ordinate bench.
If two decisions of Supreme Court on a question of law cannot be
reconciled and one of them is of
'i
larger bench, while the other is of a smaller bench then the decision of
the larger bench, whether it is earlier
or later in point of time must be followed.SupremeCourt in Ajay
Kumar Bhuyan v. State of Orissa,
(2003) 1 SCC 707 has insisted that tribunals should also follow the
doctrine of stare decisis.A tribunal is
bound to follow the law laid down by the concerned High Court or Supreme
Court.
Previous Years' Questions of Mains Examinations
Whether a jurist can be appointed as a judge of the Supreme Court directly?
[RJS 19841
 : volume//

(
cfc,
time fot holding election by the cxpiration
fill President. Jn
AH to thnt of
outgoing continues
to
Ihrqidcnt by nny rcnqon, noted that in
conducting the of new is to

of' five J'rcsidcnt,

to act
not get an opportunity then clcction to fill
or othcrwisc,
by ttqgnation, a vacan . The
If the
of occurrcncc of such
months thc chargc of h.
should bc held within six hc
from thc
fov a of five
in
Prcsidcnt
Situations whcrc Vicc-Prcsidcnt acts as a
the President duc to
occurs in the office of
Articlc 650) that when a vacancy until a new President is elected
acts as the President
removal, death or othenGse, the Vice-President
absence illness or an
his functions due to
the sitting President is unable to discharge
resumes his office.ln case the office
the VlcePresident discharges his functions until the President Ire.

the senior-most
if his office is also vacant, judge
President is vacant, the ChiefJustice of India (or
the President.
discharges the functions of
Supreme Court available) acts as the President or

of the President
President are not limited to 'executive
President exercisesvery broad functions. The powers of
ers' but it also extends to judicial as well as legislativepowers..

Executive Legislative

Powers
of
President

Financial Judicial

(1) Executive powers

Executive power of the Union vests in the President. Few important executive powersand
functions of the President are:
(i) All executive actions of the Government of India are formally taken in his name. [Article771

(ii) He appoints the prime Minister and the other ministers. They hold office during his pleasure
[Article
 ( ,'onctit'tti0'?
o/ India
appoints of
India,
and Auditor
and
of
the (
Un,on
and
can appoint a comn)ission of etc.
to investigate
classes. [Articles into the
338, 338A conditions of SQ, STSand other
and
can appoint an
council to
administers the and interstate
Union
through by him.
can declare any as scheduled
area and has
powerswith to the administration
of scheduled areas and tribal areas.

powers
Isislativc
Followingare few important legislative powers
of the President:-
He can summon or prorogue the
Parliament and dissolve the
Lok Sabha. [Article
He can summon a oint sittin of both
the Houses of Parliament [Article1081
@ He can appoint any member of the Lok
Sabha to preside over its proceedingswhen the
offices of both the Speaker and the Deputy
Speaker fall vacant. Similarly, he can also
appornt any member of the Rajya Sabha to preside over
its proceedings when the offices
of both the Chairman and the Deputy Chairman fall vacant.
He nominates 12 members of the Rajya Sabha from amongst persons having special
knowledge or practical experience in literature, science, art and social service. [Article

He can nominate two members to the Lok Sabha from the Anglo-Indian community.
[Article 33 Il

(%h) He decides on questions as to disqualifications of members ofthe Parliament, in consultation

with the Election Commission. [Article 1031
can:-
@ii) When a Bill is sent to the President after it has been passed by the Parliaments he

(a) Give his assent to the bill, or

(b) Withhold his assent to the bill, or

reconsideration of the Parliament.
(c) Return the bill (if it is not a money bill) for
Parliament, with or without amendments, the President
If the bill is passed again by the
[Article 11Il
has to give his assent to the Bill,
[discussed
when the Parliament is not in session.[Article 1231
(ix) He can promulgate ordinances
in detail]
 : Il

been vexted in to deal

of two I

a law can bc
se«on. is in session
only both the
An made when are
An parallel power of .11
and not ordinance is not a
to by
Thus of the
only when he is satisfied that the
ordinance
can make an
Grounds of promulgation: He action. In R.C. cooper v. Union
him to take immediate
that rendct it necessa ' fot in the name of the
ordinance is promulgated
that the
AIR SC the supreme court held promulgated on the advice of the council
but in truth it is
in constitutional senseon his satisfaction, the ground ofmalafide. In
questioned in a court on
be
and on their The satisfactioncan ordinance would be subject
710,Supreme court held that
A.K. Roy v. Union oflndia, AIR1982 SC
Court in T. Venkata Reddy
reasonableness and ublicinterest.Supreme
the test arbitrariness make ordinance is
since the power to legislative
1985 SC 724 held that
v. State of Andhra Pradesh, AIR
such as improper motives
exercisecannot be questioned on grounds or
power and not executive power, its

non-application of mind.

ower of the President is co-extensivewith

Scope of ordinance making power:Ordinancemakin
ordinance can be issued only on those
that of the legisla€vepowersof the Parliament.It meansthat an
subject to the same constitutional limitation
subjects on which thVfÅk1iåG€an¯make laws.An ordinance is
any of the fundamental rights.
as an act of Parliament. Hence, an ordinance cannot abridgeor take away

Duration of Ordinance: Everyordinanceissuedby the President during the recess of Parliament

must be laid before both the Housesof Parliamentwhen it reassembles.If the ordinance is approvedby
both the Houses, it becomes an Act. If Parliament takes no action at all, the ordinance ceases to operate on
the expiry of six weeks from the reassemblyof Parliament.The ordinance may also cease to operate even
earlier than the prescribed six weeks, if both the Houses of Parliament pass resolutions disapproving it. The
ordinance can also be withdrawn any time by the President.

If the Houses of Parliament are summonedto reassembleon different dates, the period of six weeks
is calculated from the later of thosedates.This meansthat the maximum life of an ordinance can be six
months and six weeks, in case of non-approvalby the Parliament (six months being the maximum gap
between the two sessions of Parliament).

128 Samarth Agrawal Bcx)ks

 of/ndia

Othcr important a«pccts: If' an is Allowedto Inpqewithout being placed before Parlia-
then the act« done and cotnplctcd under it, before it ccaqcsto operate, rcrn;un fully valid and effective.

prcsidcnt•s power of ordinanceMnaking is not a disc rctionary power, and he ( an promulgate or with-

an ordinance only on thc adN«c of the Council of Miniqtcrs hcadcd by thc J'rjrnc Ministcr, Ordinance
bc Bsucd to arncnd thc Con«itution.
In p.c. W'adhwa v. State of Bihar, (1987) I SCC 378,SuprcmcCourt ruled that successwere-
promulgation of-ordinances without any attcmpt to gct thc Bills passcd by the Assembly would amount to
on Constitution and the ordinance so re-promulgatcd is liable to bc struck down. It held that the
ccpaonal power Of law making through ordinancc cannot bc used as a substitute for the legislative
cx
-,wcrof the State Legislature.

(3) Financial powers

Few important financial powers of the President are as follows:-

(i) Money bills can be introduced in the Parliament only with his prior recommendation.
[Article 109 and 110]

He causes to be laid before the Parliament the annual financial statement (i.e., the Union
Budget). [Article 112]

No demand for a grant can be made except on his recommendation.

(IV)He can make advancesout of the contingencyfund of India to meet any unforeseen
expenditure.

v He constitutes a Finance Commission after everyfive years to recommend the distribution

of revenues between the Centre and the States. [Article 280]

(4) Judicial powers

Following are few important judicial powers of the President:-

(i) He can seek advice from the Supreme Court on any question of law or fact. However, the
advice tendered by the Supreme Court is not binding on the President, [Article 1431

(ii) He can grant pardon. reprieve. respite and remission of punishment, or suspend, remit or
commute the sentence of any person convicted of any offence:
In all cases where the punishment or sentence is by a court martial;

(b) In all cases where the punishment or sentence is for an offence against a Union law;
and

In all cases where the sentence is a sentence of death. [discussed in detail]

 : Volume

,q
Pardoning of the l'rcsidcnt rc res ite
to grant pardon
convicted of any
; of any person
thc
suspend,

against Un ion law;

offtncc
•cntcncc for an and
(Illilitary
by a court

Sentcncc is a scntcncc ofdcath. Judiciary. But, the President

independent of the
pardoning of the l'rcsidcnt is
this docs not sit as a court of appeal.
conviction and completely absolves
and the
1. Pardon: It removes both the sentence
ualifi ations.
from all sentences unishments and dis
of one form of punishment for a lighter form.
Commutation: It denotes the substitution
commuted to rigorous Imprisonment.
example, a death sentence may be
ofsentence without changing its character. For example,
3. Remission: It implies reducing the period
to rigorous imprisonment
imprisonment for two years may be remitted
a sentence of rigorous
for one year.

place of one originally awarded due to

4. Respite: It denotes awarding a lesser sentence in
convict or the pregnancy of a woman offender.
special fact, such as the physical disability of a
(especially that of death) for a
5. Reprieve It implies a stay of the aecution of a sentence
to seek pardon or commutation from
period. Its purpose is to enable the convict to have time
s-c-f;as-ident
the President is to correct
Object and nature of power: The object of the power of pardon by
judicial errors for no system of judicial administration can be free from imperfections. This power is similar
to that in United States of America and Britain. In Britain the power of pardon is regarded as royal
prerogative exercised by Sovereign,while in United States of America the power of pardon by the Presi-
dent is a part of the constitutional scheme and not a royal prerogative. In KeharSiagh v. Union of India,
AIR 1989 SC 653 Supreme Court preferred the approach of America as regards the nature of pardoning
power. The court said that the power of pardon is a part of constitutional scheme just like in USA

Judicial trend in interpreting powerunder Article72

In KeharSingh v. Union of India, AIR 1989SC 653, Supreme Court held that while exercisingthe
pardoning power President can scrutinize the evidenceon record and can come to a different conclusion•In
no
doing so, the President does not modify or supersedethe judicial records. The etitioner for mer has
court
right to an oral hearing by the President. The proceedings before President is executive in nature The
 ( o/ /ntha

that thc President can go into the of the 'ho h zl

dctcrmincd bv the cou rt.
in Mant Ram v. I Inion or India, AIR 198() 2147held that It
to take an Independent decision with vcspcctto the power conferred under 72.
cxct•eiscÄ
this powcv as per Anielc 74(1) i.c. with thc aid and advice of the of
suprcmc Court in Mar-u Ram v. Union or India,
AIR 198()QC2147 held that though tnc o,
is quitc it cannot vun riot. court cmphasi;cd that thc constitutional power should
arbitrarily. Ifthc power undcr Articlc 72 (and also Articlc 161) cxcrciscd on irrational,
discriminatoryand malafidc considerations thc courts could intcrvcnc. Later, in KcharSingb v. Union of
Indi,q,AIR 1989SC 653 Supreme Court accepted
the view in Maru Ram's casc and held that order of
presidentcan be subject to judicial review only on the
strict limitations defined in Maru Ram's casc The
of President cannot be subject to ,udicial reviewon merits.
In Eupuru Sudhakar v. Government ofAndhra Pradesh, AIR 2006 SC 3385,SuprerneCourt
heldthat pardoning powers of President under Article 72 and of Governor under Article 161 are sub;ect
to iudicial review on limited grounds like non-application ofmind, malafides, arbitrariness, irrelevant consid-
erationsetc. Pardoning cannot be exercised on the basis of caste and political reasons.

Supreme Court in Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1 held that the there is

presumption that the constitutional authority acts with due application of mind. Clemency power has to

exercisedin aid of justice and not in defiance of it. The court held that inordinate delay in deciding mer.
petitionsof death row convicts amounts to torture and is a sufficient basis to commute sentence of death
to lifeimprisonment. Court overruledits earlierjudgmentin Devander Singh Bhullar v. State of NCT
of Delhi, AIR 2013 SC 1975 in which the Supreme Court had held that delay in disposing mercy petition
cannotbe a ground for commuting death sentence.In Mohd. Arif v. The Registrar, Supreme Court,
(2014)9 SCC 737 Supreme Court held that judicial review of death penalty cases must mandatorily be
heard in an open court by a bench of at least three judges.

Pardoning power of Governor: Article 161 provides that the Governor of a State also possessesthe
pardoning power. The Governor can also grant pardons, reprieves. respites and remissions of punishment
or suspend, remit and commute the sentence of any person convicted of any offence against a State law.

Difference between pardoning power of President and Governor: The pardoning power of the
governor differs from that of the President in following two respects:

I. The President can pardon sentences inflicted by coun martial (military courts) while the Governor
cannot.

2. The President can pardon death sentence while Governor cannot.

 tal Main€ l'.vamivation€: Volt/'"c Il
t.)

lhowcvto grant pardon lies with

lhcqdcnt concurvcnt power in respect of
t to pardon.
qenten€ebut not

thc I)vcqidcnt(Articlc however this

officcvssubordinatc to him in accordance

Article 77(1) which provides that all executive
by mandatc of
of the President. Constitution
to bc taken in thc namc
o' Government of India
be
fot dcctston making may passed from president
a

either directly or through officer;

can exercisethe functions
to exercrse executive powers vested in him
to pto+,sion allows the President
Minister and Council of Ministers
and other officials.For this purpose the Prime
77(3) lays down that the President shall
subordinate to the President. Moreover,Article
These rules of business
for the more convenient transaction of the business of the Government.
power on the Ministers to carry on the administration. Supreme Court in Bijoya Cotton Mills v.
Statc of Vest Bengal, AIR 1967 SC 1143 held that although the executive power of the Union is
actually in practice it is carried on by the Ministers. In UNR Rao v. Indira Gandhi, AIR

SC 1002 Supreme Court held that there is an overarching condition that executive power is to
accordance with this Constitution' IreferArticle This phrase opens the way to judicial
of executive action. Therefore, any exercrseof the executivepower not In accordance with the
(Constitution is liable to bc set aside.

Position of President vis-å-vis Council of Ministers: Article 74 deals with the Council of Minis-
leys to Lid and advise the President. According to it there shall be a Council of Ministers with the Prime
its head to aid and advise the President. The President shall in exerciseof his function act in
accordance such advise. When the President acts directly, he acts on the advice of the Council Of
Mxnxsteys.

In Ram Ja waya v. Stare of Punjab, AIR 1955 SC 549 Supreme Court held that our Constitution has
adopted tile British system of a parliamentary executive and the President is only a '€ormal or constitutional
power vests in the Ministers or the Cabinet. Further in RC
head of tioe executive'. "l*he'real executive'
Supreme Court observed that the President
Cooper v. Union of India, AIR 1970 SC 564 acts in all
of Ministers. in Sham.sher Singh v. State of Punjab, AIR 1974SC
rnatters on the advice of tile Council
requires the 'satisfaction of the President' it
held that whenever the Constitution is not
2192 Suprerne Court 'satisfaction of the Council
constitutional sense the
but in
his personal
Samanh Agrawal Fkx»ks
132
 o/ India

Counیl
I that the 1976
to the
ornorl(hrjent the Article
the I
is quitc clmr

It the
to
that the he
shall in 10 given
with
The Vicc
President
63 provides that there shall
be a
Vice-President of
in the country. India. The office
Article 64 of Viccorcsident is the
provides that the
council of the States (Rajya sabha). Vice-Presidentshall bc ex Chairman
He shall not
hold any other
any period when the office of profit.
Vice-President acts
as President or
Article 65, he shall not perform dischargesthe functions of the Presi-
the duties of the
not be entitled to any salary or office of Chairman of the Council
ofStates
allowance payable to
the Chairman of the Council
ofStates.
of the Vice-President
Election
66 provides that the Vice-President
shall be elected by the
members ofelectoral college consist-
ofboth Houses of Parliament.
The election shall be held
in accordance with the system of
nooruonal re resentation b means of the sin le
transferable vote and by secret ballot.
It isto be noted that the electoral college for
the election of Vice-President shall
consist of both elected
zd nominatedmembers of the Parliament. It does not
include the members of the State Lecislative
assemblies.

TheVice-Presidentshall not be a member of either House of

Parliamentor of a House of the
Legislature
of any State. If a member of either House of Parliament or of a House of
the Legislatureof
anyStatebe elected Vice-President, he shall be deemed to have vacated
his seat in that House on the date on
whichhe enters upon his office as Vice-President.

Qualifications
for the election as Vice-President
Article66(3) provides the following qualifications for the election as Vice-President—

I. He should be a citizen of India.

2. He should have completed 35 years of age.
3• He should be qualified for election as a member of the Rajya Sabha.

4' He should not hold any office of profit under the Union government or any State government
or any local authority or any other public authority.
 : Volume//
toJudioal Scrvmcs
A

Parliamentary Privilcgcs
a vicw to cnablc thc Parliamcnt to cfficicntly
arc gvantcd to thc Parliamcnt with
Ccrtmn and
the House without fcar or favour. The privilcgcs arc special right;
of
cft-ceuvclydischargc thc functions thcir committccs and thClrrncrn_
exemptions cnioycd by the two Houses of Parliament,
immunitics and
to maintain the authority, dignity and honour of thc 105
bcrs. %csc privilcgcsarc essential
194 deals with thc privilcgc; of the
privileges of the two Houses of Parliament while Article
deals Ishth the
the State Legislature as well. Article 105
105 applies mutatis mutandis to
State Legislative Assemblies. Article
provides following privileges:
Parliamentary Privileges

Article 194
Article 105

House of Parliament State Legislative Assemblies

Freedom of speech:Article 105(1)providesthat 'subject to the provisions of this Constitution and

the rules and standing orders regulatingthe procedureof Parliament', there shall be freedom of speechin
Parliament. The corresponding provision with respect to State Legislature is Article 194(1). Supreme Court
in MSM Sharma v. Sinha (1), AIR 1959SC 395held that the expression 'subject to the provisions of this
Constitution' referred in Article 105(1)means subject to the provisions of the Constitution which regulates
the procedure of the Parliament. i.e.Articles118and 121.
It is the essenceof democracythat the people'srepresentativesmust be free to expressthemselves
without fear of legal consequences.

Immunity from proceedings in courts: Article 105(2)providesthat no member of Parliament shall

be liable to any proceedings in any court in respectof anything said or any vote given by him in Parliament
or any committee thereof.
Supreme Court in Tej Kiran Jain v. Sanjiva Reddy, AIR 1970 SC 1573 observed that once it is
proved that Parliament was sitting and its business was being transacted, anything said during the proceed-
ings was immune from the proceedings of the court.

Supreme Court in PV Narsimha Rao v. State, AIR 1998SC 2120was confronted with following
two important questions with respectto parliamentaryprivileges:-
1. Whether by virtue of Articles 105(1)and 105(2),a member of Parliament can claim immunity
from prosecution before a criminal court on the charge of bribery in relation to the proceedings
of the Parliament?
 Constitutionof India

a Mcmbcr of Parliamcnt is a 'public scrvant' under thc Prcvcntion of Corruption Act,

2.
1988?

factsof the casc which gavc risc to thc above mcntioncd qucstions wcrc that in 1993govcrnmcnt
bysarsimha Rao lost majority in the House and a no-confidcncc motion was moved, To avoid dcfcat
no-
in thcHouse some Mcmbcr of Parliament were bribed to vote against thc motion. Conscqucntly
was dcfcatcd.
confidcnccmotion
Asregardsthe first question the Supreme Court held that ordinary law does not apply to acceptance
Court held that by virtue of Article 105(2)members of the House who gave bribe did not enjoy
immunity,but those members who accepted the bribe and voted in accordance with it enjoy the immunity
underArticle105(2)and no criminal prosecution can be launched.Court further held that member who
hadacceptedthe bribe but had not casted the vote also did not enjoy the immunity. Therefore, what the
courtheld in a nut shell was that if a member has accepted the bribe and has casted vote in the Parliament
inaccordancewith such gratification, a criminal prosecution cannot be launched against him.
As regardsthe second question the court held that a Member of Parliament or Member of State
Assemblyis a 'public servant' under Prevention of Corruption Act.
Lecislative
publication under Parliamentary authority: Article 105(2)further provides that and no person
of
shallbe so liable in respect of the publication by or under the authority of either House of Parliament
anyreport,paper, votes or proceedings.Therefore, all persons connected with the publication of proceed-
ingsof the House are protected if the same is made under the authority of the House.
, in
Article361-Afurther provides that no person shall be liable to any proceedings, civil or criminal
proceedings of
anycourtin respect of the publication in a newspaperof substantially true report of any
to have been made
eitherHouse of Parliament or LegislativeAssembly,unless the publication is proved
v3ithmalice.
the
Internal autonomy: It is important to confer such privilegesto the Parliament which facilitates
the validity of any
workingof it without outside interference. In this regard Article 122(1)provides that
Proceedings in Parliament shall not be called in question on the ground of any allegedirregularity of
Procedure.Article 1221(2)further provides that no office or member of Parliament in whom the powers
arevestedby or under this Constitution for regulating procedure or the conduct of business,or for main-
tainingorder, in the Parliament shall be subject to the jurisdiction of any court in respect of the exercise of
powerby him.

Theseprivilegesare specifically mentioned in the Constitution. However,the Constitution does not

specificallymention each and every privilege exhaustively. Article 105(3)provides that powers, privileges
andimmunitiesof each House of Parliament and of the members of the committees of each House, shall
befromtime to tame defined by the Parliament by law. In addition to above mentioned privileges members
alsoenjoy the following privileges:-

Samarth Agrawal Bcnk,s 155

 : Volunte I/
ScrviccsMai'/€ Evantivation q
A CompendiousGuide toJudicial
procccdings within a period of 40
from avvcst:A tncmbcr cannot bc arrcstcd in civil
1. Vrccdom
that this privilcgc extend
of thc House. It must bc notcd
daysbcforc and 40 days aftcv thc scssion
charge.
only to civil proceedings and not to a criminal
power to enforce discipline. It can
2. Disciplinary powcr ovcr mcmbcrs: Parliament has thc
Ram Pal v. Ilon 'b/c Speaker
expelor suspend a member for unbecoming behavior. In Raja
Lok Sabha, (2007)3 SCC 184Supreme Court explained the difference between disqualification
and expulsion. court held that disqualification strikes at very root of the candidate's qualification
and renders him or her unable to occupy the seat. Expulsion, on the other hand deals with the
person who is otherwisequalified to occupy the seat but in the opinion of House is Unworthy of
membership.Court held that provisions of Article 101 or 102 do not restrict the scope of
Article 105(3).
3. Power to punish for contempt: The House has power to punish a person,
whether a member
or outsider, for its contempt or breach of privilege.House
can impose the punishment of
admonition, reprimand,suspensionfrom the service of
the House for the session, fine and
Impnsonment.

PreviousYears' Questions of Mains

Examinations
Vnat are the disqualifications of
members of Parliament.
Vvmatis money bill? Discuss [BJS 19751
the mode of passing of
money bill.
[U.P. CJ 20181