Union and State Judiciary

Unit - 3
 Union Judiciary
• A-124- Establishment and constitution of Supreme Court- there shall be a
SC of India- consisting of CJI and 7 other judges-(later-no increased to 13 in
1960-further-17 in 1977, again- 25 in 1986).
• Appointment- Appointed by President-after consultation of with such of
the judges of the SC and of HC as President may deem necessary- Age- 65
years-
• (Proviso- in case of appointment of a judge other than CJI, the CJ of India
shall always be consulted according to the court’s interpretation of this-the
process of appointment of a judge is initiated by the CJ of the Court
through a collegium consisting of himself and 4 senior-most judges of the
Court-the recommendation of the collegium is binding upon the president-
S.P. Gupta Cases)
 Union Judiciary
• Appointment of Chief Justice of India- the constitution gives no indication
of the procedure for appointment of the CJ.
• Convention was- the senior most judge would become the CJ-
• this convention was not followed-1973-A.N. Ray was appointed as CJI
superseding- J. Shelat, J. Grover and J. Hedge. (3 seniormost judges
resigned)- Again- after J. Ray’s retirement- J. Khanna was supposed to be
the CJI-justice Khanna was superseded – J. Beg was appointed as CJI-J.
Khanna-resigned-
• however after J. Beg’s retirement- the senior most J. Chandrachud was
appointed as CJI-and since then again the seniority rule was followed-(SC
later held in cases that the seniority rule shall always be followed)
 Union Judiciary
• Removal- Clause 4 of 124- by the order of the President-passed after an
address by each house of Parliament- supported by a majority- of the total
membership of that house and by a majority of 2/3 members present and
voting on the ground of proved misbehaviour or incapacity-
• Article-129- SC to be a court of record- a court of record is one whose acts
and judicial proceedings are enrolled for perpetual memory- and testimony
and which has authority to fine and imprison for contempt of itself as well
as of subordinate courts-
• The Supreme Court is a court of record and has all the powers of such a
court including the power to punish for contempt of itself.
• A court of record is a court whose acts and judicial proceedings are
recorded for perpetual memory and which are not to be challenged or
questioned when presented before any court for purpose of evidence.
 Union Judiciary
• Article 142(2) (complete justice) provides that the Supreme Court shall
have “all and every power to make any order for the purpose of securing
the attendance of any person, the discovery of the production of any
documents or the investigation or punishment of any contempt of itself.
• A-129 was added in the constitution at the instance of Ambedkar-as per
him-a court of record is one which is admitted to be of evidentiary value-
they are not to be questioned when they are produced before any court.
• (Doctrine of Precedent)- Once a court becomes a court of record power to
punish for its contempt flows from it-Originated in common law-
 Appointment and Transfer of Judges
• Historical background with regard to the provision of transfer- Govt.
of India Act, 1935, no provision directly dealing with transfer of
judges-in 1944-section 220- dealing with the establishment of HC was
amended- a’ new clause was introduced which provided that “the
office of a judge shall be vacated by his being appointed by His
Majesty to be the judge of the Federal Court or of another High
Court.”
• This provision clearly is a pointer to the existence of the practice of
appointing a sitting judge of one High’ Court as’ a judge of another
High Court. But, nowhere in the provision was the word “transfer”
used and therefore it is not sure whether this provision was really
intended for the transfer of judges.
 Appointment and Transfer of Judges
• Drafting committee on transfer-the Drafting Committee did not incorporate any
provision for transfer in the Draft Constitution. But, Clause (c) of the proviso to
Article 193(1) of the Draft Constitution had copied Section 220(2)(c) of the
Government of India Act and this provided for the vacation of office of a judge on
his being appointed by the President to be the judge of the Supreme Court or of
any other High Court.
• The Drafting Committee (on transfer) subsequently decided to incorporate an
express provision for the transfer of judges. According to this provision, the
President was given the power to transfer a judge from one High Court to
another High Court, within the territory of India.
• The Constituent Assembly while discussing the revised draft felt that the power
to transfer judges should not be completely vested in the President which would
lead to abuse of power and therefore an amendment which required the
President of India to consult the Chief Justice of India before exercising the power
of transfer was adopted by the Assembly.
Appointment, Removal and Transfer of Judges
• Thus Article 222(1) which was finally approved by the Assembly
provided that the President may transfer a judge of a High Court
within the territory of India after consultation with the Chief Justice of
India.
• The use and misuse of the provision-practice in the transfer of judges-
judges of the High Courts were transferred to other High Courts
either as Chief Justices.
• During an emergency in 1976 sixteen judges were transferred to
different High Courts. One of the judges so transferred challenged the
constitutional validity of his transfer before the High Court of Gujarat
 Cont…
• Supreme Court- case-Union of India v. Sankal Chand Sheth, A.I.R. 1973
• Main issues were as follows-1. The transfer order was passed without the consent
of the judge transferred; such consent must be necessarily implied in Article
222(1) of the Constitution and therefore the transfer of a judge from one High
Court to another High Court without his consent is unconstitutional.
• 2. The order was passed without effective consultation with the Chief Justice of
India, "Consultation" in Article 222(1) means 'effective consultation' and since the
pre-condition of Article 222(1) that no transfer can be made without such
consultation was not fulfilled, the transfer order was bad and of no effect.
• 3. The order of transfer militated against the public interest. The power conferred
by Article 222(1) was conditioned by the existence and requirement of public
interest and since the impugned order was not shown to have been made in
public interest, it was ultra vires.
 Cont…
• Gujarat HC struck down the transfer order-3 judge bench-in appeal-
In the Supreme Court, the appeal was heard by a Constitution Bench
consisting of Chandrachud, Bhagwati, Krishna Iyer, Untwalia and Fazal
Ali. The majority of the Court (Chandrachud, Krishna Iyer and Fazal
Ali, JJ.) held that there was no need or any justification, in order to
protect the independence of the judiciary, for construing Article
222(1) to mean that a judge could not be transferred without his
consent.
• But the minority of the Court (P. N. Bhagwati, Untwalia, JJ.) held that
a judge of a High Court could not be transferred without his consent.
 Cont…
• The majority of the Court held- The power to transfer a High Court
Judge could be exercised in the public interest only and not by way of
punishment.
• There must be full, complete and effective consultation (but
consultation does not mean concurrence) between the President of
India and the Chief Justice of India before an order of transfer under
that article was made.
• The Supreme Court had to consider the validity of another transfer of
a High Court judge in the momentous decision, S. P. Gupta v. Union
of India, 1982.
 1st SP Gupta Case, 1982
• The following were the grounds for the challenge:
• The transfer was, made without the consent of the judge transferred.
(This meant the majority decision of, the Supreme Court on this point
in Sankal Chand's case had to be reconsidered).
• There was no full and effective consultation between the Chief Justice
of India and the President in respect of his transfer.
• The transfer was not in public interest, but by way of punishment and
was vitiated by mala fides.
 Cont…
• The case was heard by a Constitution Bench consisting of Bhagwati,
Gupta, Fazal Ali, Tulzapurkar, Desai, Pathak and Venkataramiah, JJ.-
held to be in the public interest, and not vitiated by mala fides-
• There was unanimity among all judges that the transfer of judges
must be in the public interest and not by way of punishment.
• Prior consent of the judge transferred was held to be not necessary
by the majority of the Court. But Bhagwati, J. dissented.
 Cont…
• With regard to the issue of transfer-in 2nd judge case-Supreme court
advocate on record v UOI, 1993-held, CJI with the deliberation of the
collegium and also the views of CJ of HC from which transfer has to
happen and also to the CJ of HC to which transfer is being made-
recommendation will be sent to the govt.
• 3rd judges case-re Special Reference (1998)- reaffirms the same.
 Appointment of SC and HC judges
• Appointment of SC and HC judges- Intention of the Founding Father-
Intent of the Makers of the Constitution Dr Ambedkar summed down
the three issues which prevailed with regard to the appointment of
judges.
• First, the Judges of the Supreme Court should be appointed with
the concurrence of the Chief Justice.
• Secondly, the appointments made by the President should be
subject to the confirmation of a two-thirds vote by Parliament;
• and thirdly, they should be appointed in consultation with the
Council of States.
 1st judges case

• 1st judges case- the apex court took a pro-executive stand and
affirmed the existing constitutional provisions by the majority.
• • Who has the final voice in the appointment of judges of the
Supreme Court and high court?
• Answering this issue the court said that on a plain reading of clause
(2) of article 124, it is the President, which in effect and substance
means the Central Government, who is empowered by the
Constitution to appoint judges of the apex court.
 1st judges case

• So also, article 217(1) vests for the power of appointment of judges

of the High Court in the Central Government, but such power is
exercisable only after consultation with the Chief Justice of the high
court, CJI and the Governor of the State.
• It is clear on a plain reading of these two articles that the CJI, Chief
Justice of the high court and such other judges of the high court and
of the Supreme Court are merely constitutional functionaries having
a consultative role and the power of appointment resides solely and
exclusively in the Central Government.
 1st judges case

• What constitutes ‘consultation’ within the meaning of clause (2) of

Article 124 and clause (1) of Article 217?
(1) The court said that it stands concluded by the decision of this court in
the Sankalchand Seth case. (Where it is held the consultation does not
mean concurrence).
(2) The apex court held (4-3) that in the appointment of a judge of the
Supreme Court or the High Court, the word “consultation” in Article
124(2) and in Article 217(1) of the Constitution does not mean
“concurrence”.
(3) In the event of a disagreement, the “ultimate power” would rest with the
Union Government and not the CJI, the SC ruled.
(4) The First Judges Case, therefore, was an instance where the apex court
acted against its own interests.
 2nd Judges Case – Birth of Collegium
• 2nd judges case- SC advocate on record association v Union of India,
1993, known as 2nd judges case, A nine Judge Bench was constituted to
examine the question and to review 1st judges case-following are the main
points-
• i. The proposal for appointment is initiated, in the case of the Supreme
Court must be by the CJI and in the case of a high court by the Chief Justice
of that high court.
• ii. If there are conflicting opinions among the constitutional functionaries,
the opinion of the judiciary ‘symbolized by the view of the CJI’, has primacy
• iii. No appointment of any judge to the Supreme Court or any High Court
can be made unless it is in conformity with the opinion of the CJI.
• iv. Appointment to the office of the CJI should be of the senior most judge
of the Supreme Court considered fit to hold the office.
 2nd Judges Case – Birth of Collegium
• In this case the court evolved a new system called ‘collegium’ for the
appointment of judges of higher judiciary.
• In matters relating to appointments in the apex court, the opinion
given by the CJI in the consultative process has to be formed taking
into account the views of the two-senior judges of the Supreme
Court.
• This ensures that the opinion of the CJI is not merely his individual
opinion, but an opinion formed collectively by a body of men at the
apex level in the judiciary.
 2nd Judges Case – Birth of Collegium
• In matters relating to appointments in the high courts, the CJI is
expected to take into account the views of his colleagues in the
Supreme Court who are likely to be conversant with affairs of the
concerned high courts.
• The CJI may also ascertain the views of one or more senior most
judges of the high court whose opinion, according to the CJI is likely
to be significant in the formation of his opinion.
 2nd Judges Case – Birth of Collegium
• The opinion of the Chief Justice of the high court must be formed
after ascertaining the views of at least two senior most judges of the
high court.
• Conclusion- the two most-senior judges after the CJI in the SC when it
comes to appointing SC judges; the two most senior judges of the
respective HC when it comes to appointing judges to that particular
HC.
• Consultation means concurrence and is binding.
 3rd Judges case- Collegium extended
• 3rd judges case- re Special Reference (1998)- presidential reference-
was mere a dictum of the verdict in Second Judge’s Case except that it
has increased the size of the collegium by introducing two other
senior most Supreme Court judges and made it more participatory
consultative process. After this case the collegium consists of CJI and
four senior most judges of the Supreme Court.
 NJAC Judgement – 4th Judges Case
• NJAC and judicial appointments- In 2014 99th constitutional
amendment regarding National Judicial Appointment Commission
(NJAC) was declared unconstitutional.
• Supreme Court Advocates-on-record Association & Anr. vs. Union of
India, 2015
• This landmark judgment has come to be known as the ‘Fourth Judges
Case’. It stemmed from a group of petitions challenging the validity of
the Constitution (Ninety-Ninth Amendment) Act, 2014 (99th
Amendment) along with the National Judicial Appointments
Commission Act, 2014 (NJAC Act).
 Judgement
• These Acts sought to replace the prevailing collegium system used for
making appointments to the higher judiciary with the National
Judicial Appointments Committee (NJAC).
• the Court found the NJAC to be in violation of the principles of
separation of power and independence of judiciary that formed part
of the basic structure of the Constitution, and a five Judge
Constitution Bench struck down the 99th Amendment and
consequently the NJAC Act by a majority of 4:1, declaring the Acts
unconstitutional.
 Original Jurisdiction of SC
• A-131-Original Jurisdiction of the SC- original jurisdiction of any dispute-
• 1. b/w Govt. of India and one or more states
• 2. b/w Govt. of India and any state or states on one side and one or more
other states on the other side
• 3. b/w two or more states-
• (So far as the dispute involves any question of law or fact on which the
existence or extent of a legal right depends)
• Article 131 provides that the Supreme Court shall, to the exclusion of any
other court, have original jurisdiction in any dispute such disputes cannot
be taken to any other Court of Law in India.
 Cont…
• The disputes relating to the election of the President and Vice-
President are also included in the original jurisdiction of the Supreme
Court.
• The Supreme Court is the protector of the Fundamental rights of the
citizens. So, the Supreme Court has the jurisdiction to entertain an
application under Article 32 for the issue of constitutional writs, in
the form of Habeas Corpus, Mandamus, Prohibition, Quo-warranto
and Certiorari for the enforcement of Fundamental rights.
• Any disputes regarding these rights come within the original
jurisdiction of the Supreme Court; in this respect, the State High
Courts, too, have been given the same powers.
 Cont…
• There are certain limitations to the Supreme Court's original
jurisdiction.
• The original jurisdiction does not extend to a dispute arising out of
any treaty, agreement, covenant, engagement, or other similar
instruments executed before the commencement of the Constitution
of India.
• Even in respect of Fundamental Rights, only the legal aspects are
within the Supreme Court's jurisdiction. It has nothing to say about
administrative or political disputes.
 Appellate Jurisdiction
• Appellate Jurisdiction: The Supreme Court as the highest court of
appeal enjoys three kinds of appellate powers –
• Constitutional Appeals, Appeals regarding civil cases, and Appeals
regarding criminal cases.
• Constitutional Appeals: Article 132 provides that an appeal shall lie to
the Supreme Court, from any judgment, decree or final order of a
High Court; whether in a civil, criminal or other proceeding if the High
Court certifies that the case involves a substantial question of law as
to the interpretation of the Constitution.
• The Supreme Court may grant special leave of appeal even if the High
Court refuses to issue such a certificate
 Cont…
• A-132- Appellate Jurisdiction of SC-in appeals from HC in certain cases-
Appeal- from any judgment, decree or final order of an HC-whether in civil
or criminal or other proceedings-
• if the HC certifies u/a 134(A) that the case involves a substantial question
of law as to the interpretation of this Constitution-
• Civil Appeals: An appeal shall lie to the Supreme Court if the High Court
certifies
• (i) that the case involves a substantial question of law,
• (ii) that in the opinion of the High Court, the case needs to be decided by
the Supreme Court.
• Moreover, the party concerned may appeal on the ground that a
substantial question of law has been wrongly decided.
 Cont…
• A-133- Appellate Jurisdiction of SC in appeals from HC in Civil
Matters- Appeal- from any judgment, decree or final order in a civil
proceeding of an HC- if HC certifies u/a 134(A)
• i. that the case involves a substantial question of law of general
importance
• ii. In the opinion of HC, the said question needs to be decided by the
SC
• (Includes the grounds of appeal-objections relating to the wrong
interpretation of the constitution (clause 2)
 Cont…
• Criminal Appeals(A-134): According to Article 134(1) an appeal shall lie in
the Supreme Court from any judgment, final order or sentence in a criminal
proceeding of a High Court if the latter
• (a) has an appeal reversed an order of acquittal of an accused person and
sentenced him to death;
• or (b) has withdrawn for trial before itself any case from a subordinate
court and has in such trial convicted the accused person and sentenced
him to death,
• Or © has certified that the case is fit for appeal to the Supreme Court.
• The Parliament may also confer by law, on the Supreme Court, the power
to entertain and hear appeals on other cases decided by the High Courts.
 Cont…
• A-134-Appellate Jurisdiction of SC in regard to criminal matters-
Appeal-From any judgment, final order or sentence in criminal
proceedings of HC- if the HC
• i. On appeal reversed an order of acquittal of an accused person
and sentenced him to death;
• ii. or has withdrawn for trial before itself any case from any court
subordinate to its authority and has in such trial convicted the
accused person and sentenced him to death; or
• iii. certifies under Article 134A that the case is a fit one for appeal to
the Supreme Court
 Special Leave to Appeal
• A-136-Special Leave to Appeal by SC (SLP)-/ 142 (complete justice)- Article
136, the Supreme Court may grant leave to appeal against any judgment,
decree etc. passed by any court or tribunal other than by courts or
tribunals constituted under any law relating to the Armed Forces.
• No appeal, however, shall lie to the Supreme Court from the judgment,
decree or final order of a single - Judge Bench of a High Court. According to
the Constitution (Article 136), the Supreme Court can enlarge its appellate
jurisdiction.
• The Supreme Court can grant special leave of appeal from any other court
than the tribunals specially set up for the defense army.
• Again, under Article 138 Parliament can enlarge the jurisdiction of the
Supreme Court m respect of any subject included in the Union list and in
respect of any other subject with the consent of the states.
 Case Laws
• Paritam Singh v. Punjab, 1950, While delivering the majority
judgment Justice Fazl Ali, opined that the Court should grant special
leave to appeal only in those cases where special circumstances
existed.
• While conferring such jurisdiction the framers thought it would
ensure fair administration of justice in the country.
• The Court has observed that the article had been engrafted by the
founding fathers of the Constitution for the purpose of avoiding
mischief of injustice on the wrong assumption of law, but only when
the dispute needs to be settled by the Apex Court, so as to avoid
injustice and infraction of law.
 Case Laws
• How discretion will be exercised- held- discretionary power to be exercised
sparingly and in exceptional cases only, where special circumstances are
shown to exist- in criminal cases, substantial and grave injustice has been
done and the case in question presents features of sufficient gravity to
warrant a review of the decision.
• L. Chandra Kumar v. UOI, 1997- jurisdiction of SC u/a 136 can be invoked
only after exhausting the remedy before the HCs. Last resort
• Suriyakala v. A. Mohandoss, 2007, it was observed that article 136 was not
a regular forum of appeal at all.
• The words “in its discretion” in Article 136 clearly indicates that the article
does not confer a right of appeal upon any party, but merely vests a
discretion in the Court to interfere in exceptional cases
 Case Laws
• Jamshed Hormusji Wadia v. Board of Trustees, 2004 it was observed that
the discretionary power in article136 is permitted to be invoked not in a
routine fashion but in very exceptional circumstances as when a question
of law of general public importance arises or a decision sought to be
impugned shocks the conscience.
• Guidelines- All matters involving substantial queries of law regarding the
interpretation of the Constitution of India.
• Substantial queries of law of general importance.
• All matters of national or public importance.
• To settle differences of opinion on important issues of law between High
Courts.
 Cont…
• Discretionary power-last resort-no reasoned decision-
• granting of special leave to appeal (discretionary)
• hearing the appeal
• Criminal case-Gross miscarriage of Justice
• Civil Case-Error apparent at the face of the record
• Advisory Jurisdiction: The Supreme Court’s Advisory Jurisdiction has been
discussed in Article 143 of the Constitution.
• Under this Article the President may approach the Supreme Court for advice on
questions of law or fact of public importance which may have arisen or are likely
to arise.
• The Supreme Court may, after due enquiry, report to the President its opinion on
such matters Thom are instances of the Supreme Court having given its advice to
the government on many occasions.
 Advisory Jurisdiction
• The first reference under Article 143 was made in the Delhi Laws case, 1951.
There have been only 12 references under Article 143 made by the President
since independence.
• In Re Cauvery Water Dispute Tribunal’s case, 1992, the main question referred to
the Court was whether the Tribunal established under the Inter-State Water
Disputes Act, 1956 has the power to grant interim relief to the parties of the
disputes.
• In this case, the Court held that Tribunal has the power to grant interim relief,
however, the Court refused to express any definitive opinion on the point as to
whether the opinion given by the Supreme Court on a reference under Article
143 is binding on all courts or not for two reasons:
• (i) the specific question did not form part of Presidential Reference in the instant
case, and (ii) any opinion expressed by the Court in the instant case would again
be only advisory in nature.
 Advisory Jurisdiction
• The jurisdiction under Article 143 does not provide for reconsideration of
the court’s earlier decisions, this jurisdiction is provided only under Article
137.
• The Supreme Court has also supported this view in the Cauvery Dispute
Case 10where the court observed that, the advisory jurisdiction is distinct
from the adjudicatory jurisdiction, and that it cannot be converted to
appellate jurisdiction or review jurisdiction of the Supreme Court.
• In re Kerala Education Bill, 1957, where the court observed that such an
opinion is not technically binding on the courts, and the court giving the
opinion may itself, in contested legislation be asked to reconsider it.
• Therefore, although any opinion expressed by the judges of the Supreme
Court in an advisory opinion would have high persuasive authority, it is not
the law declared by the Supreme Court within the meaning of Article 141.
 Advisory Jurisdiction
• Re The Special Courts Bill 1978, whether the “law laid down by the
Supreme Court in opinions” is “the law laid down by the Supreme Court”
under Article 141?
• J. Chandrachud- “It would be strange that a decision given by this court on
a question of law in a dispute between two parties should be binding on all
courts in the country, but the advisory opinion should bind no one at all.”
• IS THE SUPREME COURT BOUND TO GIVE AN OPINION? Ismail Faruqui vs.
Union of India, 1995, which was in relation to the Ayodhya dispute and the
advisory opinion, in which the president seeks the Supreme Court’s opinion
whether a temple which originally existed at the site where Babri Masjid
subsequently stood was superfluous and opposed to secularism.
 Advisory Jurisdiction
• In this case, it was held by the Supreme Court that the Supreme Court
can decline to give its opinion under Article 143 in cases it does not
consider proper or not amenable to such exercise by giving and
showcasing a proper reason for such denial.
• IS THE PRESIDENT BOUND BY THE ADVICE? The advisory opinion of
the Supreme Court under this article is not binding on the president,
though the president honours it and appreciates it.
• As per the opinion of the Supreme Court in presidential reference, the
court can sometimes take the undertaking of the Attorney General
that the president will honour it.
 Cont…
• Kerala Education Bill, 1957, mentioned that it is obligatory for the Supreme
Court to respond and give its opinion on any matter which is raised under
Article 143(2) of the Constitution, but under Article 143(1) it is the
discretion of the court and for good and valid reason may deny giving its
opinion.
• But a differing opinion was given by Justice Chandrachud in the Special
Courts bill, 1979, he believed the mere phraseology of Article 143(1) and
Article 143(2), the use of the word ‘may’ in clause 1 and the use of the
word ‘shall’ in clause 2 doesn’t make the supreme court bound to give an
opinion on the reference. Even under clause 2, the court can refuse the
reference under justified grounds.
• In the same case, Chief Justice Gajendragadkar rejected the opinion of
Chandrachud and held that the Supreme Court can refuse the matter
under Article 143(1) but not deny giving an opinion under Article 143(2).
 Review Jurisdiction
• Review A-137: Power to review its own judgments- the power to
review any judgment or order made by it.
• Article 137 of the Constitution of India, 1950, provides that subject to
provisions of any law and rules made under Article 145, the Supreme
Court has the power to review any judgment pronounced or order
made by it.
• Under Supreme Court Rules, 1966 such a petition is to be filed within
thirty days from the date of judgment or order and as far as
practicable; it is to be circulated, without oral arguments, to the same
Bench of Judges who delivered the judgment or order sought to be
reviewed.
 Review Jurisdiction
• The word “Review” in legal parlance connotes a judicial re-
examination of the case.
• Therefore, in order to rectify an error and prevent the gross
miscarriage of justice, Review Petition is a discretionary right of the
court.
• The grounds for review are limited. A review is filed in the same court.
Taking into consideration the principle of Stare Decisis i.e." to stand
by that which is decided", courts generally do not unsettle a decision,
without a strong case.
• This provision regarding review is an exemption to the legal principle
of stare decisis.
 Review Jurisdiction
• In Aribam Tuleshwar Sharma v. Aribam Pishak, 1979, the Supreme Court
held that, the power of review which inheres in every Court of plenary
jurisdiction to prevent miscarriage of justice or to correct grave and
palpable errors committed by it.
• But, there are definitive limits to be an exercise of the power of review.
• The power of review may be exercised on the discovery of new and
important matter of evidence which, after the exercise of due diligence
was not within the knowledge of the person seeking the review or could
not be produced by him at the time when the order was made; it may be
exercised where some mistake or error apparent on the face of the record
is found, it may also be exercised on any analogous ground.
• But, it may not be exercised on the ground that the decision was erroneous
on merit.
 Review Jurisdiction
• Since the Power given under the Article is subject to any law made by
the Parliament or any other rules made there under by the Apex
Court, the Power is to be exercised under the rules made by the court
in pursuance of Art.145 of the Constitution on the grounds
mentioned under Or. XLVII, Rule 1 of the Civil Procedure Code, 1908.
• Therefore, the review will lie in the Supreme Court on:
• 1. Discovery of new and important matter or evidence,
• 2. Error apparent on the record,
• 3. Other Sufficient reason
 Review Jurisdiction
• G. L. Gupta vs D.N. Mehta, 1971, the supreme court reviewed its earlier
decision in a criminal appeal because a statutory provision of the foreign
exchange act which had a vital bearing on the case, was not brought to its
notice. The court modified its sentence to imprisonment.
• Sarala Mudgal vs Union of India, 1995, (case on bigamy) the court refused
to review its earlier judgement as there was no error apparent on the face
of the record, and no new material had come into light after the
judgement. The earlier judgement was not violative of any of the
fundamental rights guaranteed to the citizens. A review petition cannot be
exercised merely because there is a possibility of taking a different view.
• Tungabhadra Industries (Pvt.) Ltd V. Government of Andhra Pradesh,
1964, A review is by no means an appeal in disguise whereby an erroneous
decision is reheard and corrected but lies only for patent error.
 Review Jurisdiction
• Tungabhadra Industries (Pvt.) Ltd V. Government of Andhra Pradesh,
1964, A review is by no means an appeal in disguise whereby an
erroneous decision is reheard and corrected but lies only for patent
error.
• Smti Meera Bhanja vs. smti Nirmala kumara, 1995, it was held by the
learned single judge that “The Supreme Court further pointed out
that ‘error apparent on the face of the record’ means an error which
strikes one on mere looking at the record and would not require any
long drawn process of reasoning on points where there may
conceivably be two opinions.
 Review Jurisdiction
• Lily Thomas v. Union of India, 2000, (case on bigamy) wherein it has
been observed that if the court finds that the error pointed out in the
review petition was a mistake and the earlier judgment would not
have been passed but for erroneous assumption which in fact did not
exist and its perpetration shall result in a miscarriage of justice,
nothing would preclude the court from rectifying the error.
• The court has described its review power as follows in “The power to
review can be exercised for correction of a mistake and to substitute a
view. Such Powers can be exercised within the limits of the statute
dealing with the exercise of power. The mere possibility of two views
on the subject is not a ground for review.”
 State Judiciary
• A-214- High Courts for States
• A-215- High Courts to be courts of record
• A-216- Constitution of High Courts
• A-217- Appointment and conditions of the office of a Judge of a High Court
• A-218- Application of certain provisions relating to the Supreme Court to High Courts
• A- 222- Transfer of a Judge from one High Court to another
• A- 225- Jurisdiction of existing High Courts
• A- 226- Power of High Courts to issue certain writs
• A- 227- Power of superintendence over all courts by the High Court
• A- 228- Transfer of certain cases to the High Court
• A- 230- Extension of jurisdiction of High Courts to Union territories
• A- 231- Establishment of a common High Court for two or more States
 Original Jurisdiction of HC
• The Constitution of India has not made any clear and detailed
description of the powers and functions of the High Court as it has
done in the case of the Supreme Court.
• The Constitution says that the Jurisdiction of the High Court shall be
the same as immediately before the commencement of the
Constitution, subject to the provisions of the Constitution and the
laws made by the appropriate legislature.
• Original Jurisdiction: Original jurisdiction in relation to the high court
refers to the authority of the high court to hear and decide cases for
the first time. The original criminal jurisdiction of the High Court has,
however, been abolished by the Criminal Procedure Code, of 1973.
 Appellate Jurisdiction of HC
• Appellate Jurisdiction: Appellate jurisdiction in relation to High Court refers to
the power of the High Court to review the decisions of Lower courts. The High
Court is the highest court of appeal in the state. It has appellate jurisdiction in
civil and criminal cases- a.
• In civil cases, an appeal can be made to the High Court against the decisions of
the District Judges and the Subordinate Judges.
• Again, when any court subordinate to the High Court decides an appeal from the
decision of an inferior court, a second appeal can be made to the High Court only
on the question of law and procedure. (Given under CPC)
• Besides, appeal from the decision of a single Judge of the High Court itself also
lies to the High Court. In criminal cases appeals against the decisions of A
Sessions Judge or an Additional Sessions Judge, where the sentence is of
imprisonment exceeding 7 years; or Assistant Sessions Judge, Metropolitan
Magistrate or other Judicial Magistrates in certain specified cases other than
petty cases can be made to the High Court (CrPc).
 Cont…
• Powers of issuing Directions, Orders or Writs: The High Court has been
empowered to issue writs of habeas corpus, mandamus, and prohibition
certiorari and quo warranto for the enforcement of fundamental rights and „for
other purposes‟.
• The Supreme Court can issue the writs only for the enforcement of fundamental
rights and not for other purposes. The power of the High Court to issue writs in
the nature of habeas corpus cannot be curtailed even during an emergency.
• Powers of superintendence: Every High Court has a general power of
superintendence over all the lower courts and tribunals within its jurisdiction
except military courts and tribunals.
• By virtue of this power the High Court can call for returns from such courts; 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 shall be kept by the officers of any such court.
 Cont…
• Powers of taking up cases: If a case is pending before a subordinate court
and the High Court is satisfied that it involves a substantial question of the
constitutional law, it can take up the case and decide it itself.
• Other powers: Besides the above powers, the High Court performs some
other functions: 1) Like the Supreme Court, the High Court also acts as a
Court of Record. 2) It has the power to punish for contempt of itself. 3) The
High Court can frame the required rules to carry out its judicial functions.
• Article 225, the jurisdiction of the High Courts, the law administered by
them, and the respective powers of their Judges In relation to the
administration of justice by the Court and their rule-making power, all are
to be the same as were enjoyed by them immediately before the
commencement of the Constitution.
 Writ Jurisdiction
• Writ jurisdiction: Articles 226 and 227 are the parts of the
constitution which define the powers of the High Court. Article 226,
empowers the high courts to issue, to any person or authority,
including the government (in appropriate cases), directions, orders or
writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto, certiorari or any of them.
• Kinds of writs: 1)Habeas Corpus - A simple dictionary meaning of the
writ of Habeas Corpus is "a writ requiring a person under arrest of
illegal detention to be brought before a judge or into court, especially
to secure the person's release unless lawful grounds are shown for
their detention".
 Cont…
• 2) Mandamus - A writ issued as a command to an inferior court or
ordering a person to perform a public or statutory duty.
• 3) Prohibition - A writ of prohibition is issued primarily to prevent an
inferior court or tribunal from exceeding its jurisdiction in cases
pending before it or acting contrary to the rules of natural justice.
• 4) Quo warranto - This simply means "by what warrant?” This writ is
issued to enquire into the legality of the claim of a person or public
office. It restrains the person or authority to act in an office to which
he/she is not entitled; and thus, stops usurpation of public office by
anyone. This writ is applicable to public offices only and not to private
offices.
 Cont…
• 5) Certiorari- Literally, Certiorari means "to be certified". The writ of
certiorari can be issued by the Supreme Court or any High Court for
quashing the order already passed by an inferior court, tribunal or
quasi-judicial authority. The High Court is conferred with this power
under Article 226 of the Constitution of India for enforcement of any
of the fundamental rights conferred by part III of the Constitution or
for any other purpose.
• Article 227 determines that every High Court shall have
superintendence over all courts and tribunals throughout the
territories in relation to which it exercises jurisdiction (except a court
formed under a law related to armed forces).