Administration of Justice

& the structure of the judiciary

The Supreme Court

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 There is no better test than the excellence of
the government than the efficiency of
judicial system –-James Bryce

If the law is dishonestly administered

--- the salt has lost its flavour
If it be weak and fitfully enforced,
--- the guarantees and order fail
for it is more by the certainty than by the severity
of punishment that offenders are repressed.
-James Bryce

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 Functions of judiciary

Administration of justice – investigate and

determine the facts – interpret the law – apply
Judicial Review - Judicial Law making
Extending Advisory opinions
Prevention of Infraction of law and violation of
law
Resolution of federal disputes

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  Etymologically justice means awarding what is
due and quality of being just.
 Effective access to justice and fair
administration thereof is individualistic and
collective human right.
 Any right without remedial justice is a hoax
and a husk without grain.
 Justice must be just. .
 Legal actors, judges, lawyers and clients have
to undertake fair play

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Justice requires Assurance of ……
 Availability

 Accessibility - Physical
- economic
- Informative
 Acceptability
 Quality assurance

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 What is administration of Justice?

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The administration of justice by the state is of
paramount necessity and a primary function of the
state, the purpose for which it exists.

Administration means management and justice

means to right and fair treatment. By the
administration of justice is meant the maintenance
of right with in a political community by means of
the physical force of the state.

Administration of justice refers to the entire

process through which the rights of an individual
are protected or compensation or punishment
meted out for a breach of these rights thereof. this
is not only limited to the courts but also the quasi-
judicial bodies that work under any legal system
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 The administration of civil justice is divided into
the enforcement of primary and sanctioning
rights.
 An action for the enforcement of a primary right
may be called an action for ‘specific
enforcement’.
 In such cases, the law insists on the existence of
a state of things which are a matter of right
such as the performance of a contract.
 An action for the enforcement of a sanctioning
right is almost always an action for damages.
 In such cases, the law substitutes the existence
of a state of things which are a matter of right
with something which is considered to be its
equivalent such as the payment of
compensation for damage to property.
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Administration of justice, with particular reference to the
criminal law, is a compendious term that stands for all
the complexes of activity that operate to bring the
substantive law of crime to bear, or to keep it from
coming to bear, on persons who are suspected of
having committed crimes. It refers to the rules of law
that govern the detection, investigation, apprehension,
interviewing and trial of persons suspected of crime and
those persons whose responsibility it is to work within these
rules.
The administration of justice is not confined to the courts; it
encompasses officers of the law and others whose duties
are necessary to ensure that the courts function effectively.
The concern of the administration of justice is the fair, just
and impartial upholding of rights, and punishment of
wrongs, according to the rule of law.
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 Evolution of Administration
of justice in India

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 • The Rule of East India Co.,
Ist • 1660 – 1858 A.D.
peri
od

• Direct Rule of the Crown

II • 1858 -1947
peri
od

• Making the Indian Constitution

III • The 1946-1949
peri • The Indian Republic – 26th Jan 1950
od

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British Period:
 The Present system of administration of justice owes its
origin to the advent of the British rule in India – It has
the stamp of made in UK
 In 1780 Warren Hastings, the Governor-General,
recognised the adalat system.
 The Regulating Act of 1773 empowered the Crown of
England to create by means of a Royal Charter a
Supreme Court of Judicature at Calcutta. In pursuance
of this provision George III issued a Royal Charter on
the 26th March 1774, establishing the Supreme
Court of Judicature at Fort William in Bengal.
 The Supreme Court was given a wide jurisdiction in all
matters, civil and criminal. It was also invested with
Admiralty and Ecclesiastical jurisdictions.
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  Establishment of Supreme Court : Chief Justice and
three other judges – 5 year standing – Barrister at Law
– appointed by the crown, work at her pleasure – Civil,
criminal, admiralty and ecclesiastical jurisdiction – the
judges and GG and councilors are exempt from arrest
or imprisonment in any action or suit or proceedings in
any court – jury system – the appeal lies to King – in –
Council

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 Two distinct systems of judiciary came into existence under
the rule of the Company. One was the Presidency Towns
system which derived its authority from the Crown. The
other was the Adalat system deriving its authority from the
Company.
 In the King’s Courts the English Law was applied for the
most part, though exceptions were made in favour of
Hindus and Muslims who were governed by their respective
personal laws in regard to inheritance, succession, etc.
 The Mofussil system, on the other hand, was governed by
the Regulations of the Government. In the absence of
regulations and personal laws, the mofussil courts
proceeded according to justice, equity and good
conscience. The existences of this duality in the judicial
organisation were found to be inconvenient. Steps were
taken to effect a fusion when the Crown directly assumed
sovereignty over the Indian territories.
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 The Indian High Courts Act was passed in 1861
authorizing the Crown to establish High Courts at
Calcutta, Madras and Bombay
 Under the Government of India Act 1935 High Courts
were revamped and Federal Court which was a
forerunner to the Supreme Court was Established
 Establishment of Federal Court: Chief Justice and not
more than 6 other judges. – 65 years retirement –
Appointed by the Crown -Had original Jurisdiction,
appellate jurisdiction – and advisory jurisdiction
 Disputes between federation and units or units interse -
Appeals from High Courts on the substantive questions of
law and interpretation of G.I.Act, 1935
 The Privy Council was an Imperial Body representing the
Empire and is no more English than, it is for instance,
Indian, Canadian or South African.
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 Since 1857 when the power was transferred to the
queen Great codes were passed – justice according to
procedure of the law
Code of Civil Procedure,1859 - Indian Penal Code,1860-
Code of Criminal Procedure1861 -Indian Evidence Act,
1872 - Contract Act, 1872 -Transfer of Property Act, 1882
- Formed the bedrock indian legal system –
Hindu law was sought to be codified – but with partial
success - Shariat Act ,1937 was passed assuring that in
the matters succession, marriage, dower, divorce,
acknowledgement and paternity, guardianship etc the
muslims would be governed by their personal law

These important pre constitutional

laws were to be implemented by the
post constitutional courts in India
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 In the Constituent Assembly – Sapru Committee Report
on Judiciary and Ad. Hoc Committee of the Constituent
Assembly on Judiciary strongly advocated for single
hierarchy of courts with the supreme court at the apex.
 Dr. Ambedkar viewed that one single integrated judiciary
having jurisdiction and providing remedies in all cases
arising under the constitutional law, civil and criminal law
is essential to maintain unity of the country.
 Article 103, Draft Constitution, 1948
 The topic was discussed at a time when the country was
passing through the impact of partition.
 The Joint Committee opined that the federal constitution
requires a federal court. It added “…. At once the
interpreter and guardian of the constitution and tribunal
for determination of disputes between the constituent
units of federation.
 The members felt that it would be an instrument to
facilitate social revolution
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04/24/2024 18
India has single hierarchy of courts. Supreme Court is the Apex
Court of India. – Chapter IV Part V deals with the Union
Judiciary

Supreme 1. Appointed by the president of

Court of India on due consultations
India
Art. 124
2. He is citizen of India
3. Five years judge of a high court
4. 10 years as advocate of a high
court
5. Or in the opinion of the
President an eminent jurist
6. Tenure upto 65 years
7. Salary and allowances as fixed
by law
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 124. (1) There shall be a Supreme Court of India
consisting of a Chief Justice of India and, until
Parliament by law prescribes a larger number, of not
more than seven other Judges. (Now “344”vide the
Supreme Court (Number of Judges) Amendment Act,
(2) Every Judge of the Supreme Court shall be
appointed by the President by warrant under his hand
and seal after consultation with such of the Judges of
the Supreme Court and of the High Courts in the States
as the President may deem necessary for the purpose
and shall hold office until he attains the age of sixty-five
years:

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 Provided that in the case of appointment of a Judge
other than the Chief Justice, the Chief Justice of India shall
always be consulted:
Provided further that—
(a) a Judge may, by writing under his hand
addressed to the President, resign his office;
(b) a Judge may be removed from his office in the
manner provided in clause (4).
1[(2A) The age of a Judge of the Supreme Court shall
be determined by such authority and in such manner as
Parliament may by law provide.] Added by 15th
Amendment 1963.

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(3) A person shall not be qualified for appointment as
a Judge of the Supreme Court unless he is a citizen of
India and—
(a) has been for at least five years a Judge of a
High Court or of two or more such Courts in
succession; or
(b) has been for at least ten years an advocate of
a High Court or of two or more such Courts in
succession; or
(c) is, in the opinion of the President, a
distinguished jurist.

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 Explanation I.—In this clause "High Court'' means a
High Court which exercises, or which at any time before
the commencement of this Constitution exercised,
jurisdiction in any part of the territory of India.
Explanation II.—In computing for the purpose of this
clause the period during which a person has been an
advocate, any period during which a person has held
judicial office not inferior to that of a district judge after
he became an advocate shall be included.

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(4) A Judge of the Supreme Court shall not be removed
from his office except by an order of the President
passed after an address by each House of Parliament
supported by a majority of the total membership of
that House and by a majority of not less than two thirds
of the members of that House present and voting has
been presented to the President in the same session for
such removal on the ground of proved misbehavior or
incapacity.

(5) Parliament may by law regulate the procedure for

the presentation of an address and for the investigation
and proof of the misbehavior or incapacity of a Judge
under clause (4).

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(6) Every person appointed to be a Judge of the
Supreme Court shall, before he enters upon his office,
make and subscribe before the President, or some person
appointed in that behalf by him, an oath or affirmation
according to the form set out for the purpose in the Third
Schedule.
(7) No person who has held office as a Judge of the
Supreme Court shall plead or act in any court or before
any authority within the territory of India.

Art. 127 – Appointment of Adhoc. Judges

Art.128 - Attendance of retired Judges at sittings of the
Supreme Court.

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Removal of Judges
Art.124 : (2) (b) a Judge may be removed from his office in
the manner provided in clause (4).
(4) A Judge of the Supreme Court shall not be removed
from his office except by an order of the President
passed after an address by each House of Parliament
supported by a majority of the total membership of
that House and by a majority of not less than twothirds
of the members of that House present and voting has been
presented to the President in the same session for such
removal on the ground of proved misbehaviour or incapacity.

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Art. 129- a Court of Record, the Supreme Court has 2 powers -

1. The judgements, proceedings and acts of the Supreme Court

are recorded for perpetual memory and testimony.

2. These can be used as references and cannot be questioned

when produced in any court.

3. It can punish for contempt of court. The Supreme Court can

punish for contempt not only of itself but also of high courts,
subordinate courts and tribunals functioning in the entire
country. Punishment can be fine or imprisonment or both.

•Civil contempt of court means willful disobedience to any

judgement, order, writ, undertaking etc.
Criminal contempt of court means the publication of any matter
or doing an act which -

(a) lowers authority of a court; (b) interferes with the judicial

proceeding; (c) prejudices judgment of judiciary; and (d)
interferes with administration of justice in any other manner.

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 Following are not considered as contempt of court -

(a) innocent publication and distribution of some matter;

(b) fair and accurate report of judicial proceedings;

(c) fair and reasonable criticism of judicial acts; and

(d) comment on the administrative side of the judiciary etc.

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 Taking into account the vital importance of judiciary in a
democratic setup and keeping the independence of the
judiciary, the removal of the judges is kept outside the
ordinary vagaries of executive and ordinary process of law
 In England the judge holds his office during ‘good
behaviour’ and can be removed on address made by the
parliament. However, special majority is not prescribed.
Grounds for removal need not be mentioned.
 In USA (Article III, Sec. 1 (“ Good behaviour Doctrine)the
process of impeachment is required and only it should be
effected on the grounds of treason, bribery and other high
crimes and misdemeanors. Under normal circumstances, a
Supreme Court justice is awarded a lifetime commission. It
has held that a claim to judicial review of an issue arising in
an impeachment trial in the Senate presents a no justiciable
question, a ''political question.‘ (Nixon v. United States, 506
U.S. 224 (1993)
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A Supreme Court Justice in America may be impeached
by the House of Representatives and removed from office
if convicted in a Senate trial, but only for the same types
of offenses that would trigger impeachment proceedings
for any other government official under Articles I and II
of the Constitution. Impeachment is a two-step process;
the impeachment phase is similar to a Grand Jury
hearing, where charges (called "articles of
impeachment") are presented and the House of
Representatives determines whether the evidence is
sufficient to warrant a trial. If the House vote passes by a
simple majority, the defendant is "impeached," and
proceeds to trial in the Senate.
The House of Representatives indicts the accused on
articles of impeachment, and, if impeached, the
Senate conducts a trial to determine the party's guilt or
innocence.
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  In India the judge may be removed from the office by
the president on address by the parliament for ‘proved
misbehaviour’ ie., it has to be ascertained through the
charges of misbehaviour, investigation, substantiated
and established

 Appointment and transfer of jedges of

judges:
 Undermined the role of the executive in appointments
and transfers by judicial interpretation.
 initially it was thought consultation was mentioned
under Art.124 the President is not bound by the opinion
thus given.

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Union of India v. Sankalchand Himatlal Sheth AIR 1977 S C
2328 –
 It was observed that the power to transfer a High Court Judge is
conferred by the Constitution in public interest and not for the
purpose of providing the executive with a weapon to punish a
Judge who does not toe its line or who, for some reason or the
other, has fallen from its grace.
 Art. 222 (1) is, in substance, worded in similar terms as the 1st
proviso to Art. 124. It casts an absolute obligation on the
President to consult the Chief Justice of India before
transferring a Judge from one High Court to another. That
is in the nature of a condition precedent to the actual transfer of
the Judge. After an effective consultation with the Chief
Justice of India, it is open to the President to arrive at a proper
decision of the question whether a Judge should be transferred to
another High Court because, what the Constitution requires is
consultation with the Chief Justice, not his concurrence
with the proposed transfer.
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 In S.P.Gupta Vs. Union of India AIR 1982 SC 149
the court reiterated the above view but added that the
decision of the President can be challenged on the
ground of Malafide. The court opined that the
appointment of judges was not an executive act
but the result of constitutional process which must
be observed in word and spirit.
 S.C. Advocates-on-Record Association Vs. Union of
India ( Second Judges Case) AIR1994 S.C. 268
read with Presidential ReferenceAIR 1999 SC 1 –
laid certain guidelines totally departing from the above .
 Primacy given to opinion of Chief Justice of India –
the opinion of Chief Justice of India which is
reflective of opinion of judiciary i.e. having an
element of plurality in its formation - Opinion
formed in any other manner - Not binding on
Govt.
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 The expression "consultation with the Chief Justice of
India" in Arts. 217(1) and 222(1) of the Constitution of
India requires consultation with a plurality of Judges in the
formation of the opinion of the Chief Justice of India. The
sole, individual opinion of the Chief Justice of India does
not constitute "consultation" within the meaning of the
said Articles.
 The opinion of the Chief Justice of India which has primacy
in the matter of recommendations for appointment to the
Supreme Court has to be formed in consultation with a
collegium of Judges. It is desirable that the collegium
should consist of the Chief Justice of India and the four
senior-most puisne Judges of the Supreme Court.
 Successor CJI to be included in collegium

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 Opinion of all members of collegium and of senior-
most Supreme Court Judge who hails from same
High Court as of the person to be re-commended -
Must be in writing - To be conveyed by C.J.I. to
Govt. with recommendation.
 When the Chief Justice of India is in a minority and the
majority of the collegium disfavor the appointment of a
particular person that person shall not be appointed.
 Merit is the predominant consideration - inter se seniority of
Judges to be given due weight - Strong cogent reasons
required to be recorded in case of departure from order of
seniority - Means recording of good reasons for appointing
a particular Judge.
 High Court Judge - Appointment - Opinion of C.J.I. - To be
formed in consultation with collegium - Collegium to consist
of Chief Justice of India and two senior-most Judges of S.C.
only.
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 Judicial review in the case of an appointment, or a
recommended appointment, to the Supreme Court or a High
Court is available if the recommendation concerned is not a
decision of the Chief Justice of India and his senior-most
colleagues, which is constitutionally requisite.
 Before recommending the transfer of a puisne Judge of one
High Court to another High Court, also as a puisne Judge,
the Chief Justice of India must consult a plurality of Judges.
He must take into account the views of the Chief Justice of
the High Court from which the Judge is to be transferred,
any Judge of the Supreme Court whose opinion may have
significance in the case and at least one other senior Chief
Justice of a High Court or any other person whose views he
considers relevant.
 High Court Judge - Transfer - Judicial review - Only on
ground of absence of proper consultation.
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 Comment:
 The appointment of those judges with questionable
credentials by ‘collegium’ underscored the point that it
requires revision
 The process of appointing appellate justices or their
transfer is not a small affair – without sufficient
secretariat, intelligence inputs, inputs of professional
background all requires a separate process more than a
closed room meeting of judges.
 The whole process is without transparency
 Law Commission in its 214th report sought to reconsider
the above judgments of the Supreme Court. - it also
suggested to restore the primacy of the CJI and the
executive.
 One of the suggestions made was to establish National
Judicial commission which was previously thought of and
shelved.
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 Jurisdiction of the Supreme Court –
A Court of Record

Writ
Original Appellate Advisory jurisdiction Revisory
Jurisdiction Jurisdiction Jurisdiction under Jurisdiction
Art.32

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32. Remedies for enforcement of rights conferred
by this part.— (1) The right to move the Supreme Court by
appropriate proceedings for the enforcement of the rights
conferred by this part is guaranteed.
(2) The Supreme Court shall have power to issue
directions or orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement
of any of the rights conferred by this part.
(3) Without prejudice to the powers conferred on the
Supreme Court by clauses (1) and (2), Parliament may by law
empower any other court to exercise within the local limits of
its jurisdiction all or any of the powers exercisable by the
Supreme Court under clause (2).
(4) The right guaranteed by this Article shall not be
suspended except as otherwise provided for by this
Constitution.
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Writ Jurisdiction of Supreme Court compared with that
of the High Court.—
 The Writ Jurisdiction of the Supreme Court under Art. 32 is
original jurisdiction exercisable only for the protection of
fundamental rights.
 The High Court’s jurisdiction under Art. 226 is available not
only for the protection of fundamental rights, but also for
other purposes. The other purposes are those in connection
with the judicial control of administrative authorities in the
discharge of their common law and statutory duties. When
the High Court exercises its Writ Jurisdiction under Art. 226,
in appropriate cases the Supreme Court may exercise its
appellate jurisdiction. The Supreme Court thus exercises
control over administrative authorities by means of writs
only in its appellate jurisdiction.
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 The two jurisdictions, under Art.226 and 32, are
concurrent so far as fundamental rights are concerned.
 So a petitioner for a writ can apply to the Supreme Court
directly.
 He need not first apply to the High Court. Romesh
Thappar v. State of Madras, AIR 1950 SC 124. Patanjali
Sastri, J., observed : “The Supreme Court has been
constituted the protector and guarantor of fundamental
rights. It cannot, consistently with the responsibility so
laid upon it, refuse to entertain applications seeking
protection against infringements of such rights.”

 However, there is deviant view expressed by the SC in two

cases Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987
SC 1159 ; P.N. Kumar v. Municipal Corporation of Delhi,
(1987) 4 SCC 609
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 Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159
Thakkar, J., compared the Supreme Court to a National
Hospital and the High Court to Regional Hospitals. In view of
the congestion in the National Hospital it is better to direct
the patients (writ Petitioners) to approach the Regional
Hospitals first where they can get “more personalised and
urgent attention”.
 In P.N. Kumar v. Municipal Corporation of Delhi, (1987) 4
SCC 609 E.S. Venkataramaiah, J., has given 10 reasons why
the High Court should be approached first. It is said that the
remedy in the High Court is less expensive and more
convenient. If the relief sought is granted by the High Court,
it may not be necessary to approach the Supreme Court. The
High Court Judges have necessary skill and the High Court
Lawyers have wide experience. Finally, “Even if no new case
is filed in this Court hereafter, with the present strength of
judges, it may take more than 15 years to dispose of all
pending cases”.
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 It may be noted that this view is an act of despair over
pending cases and docket explosion – a constitutional
guarantee cannot be abdicated in this manner
 In Randhir Singh v. Union of India, AIR 1982 SC 879 : it
was observed : “The glory of our Constitution is that it
enables a person to directly approach the highest Court in
the land for redress”.
 Under Art. 32 cl. (3) Parliament may by law empower any
other Court to issue writs for protecting fundamental
rights. No such law has been passed so far.
 Under old Sec. 491 of the Criminal Procedure Code, 1898,
the writ of Habeas Corpus could be issued. But this
section does not find a place in the Criminal Procedure
Code of 1973. Old Secs. 45 and 46 of the Specific Relief
Act, 1877, provided for the writ of mandamus. Those
sections were omitted in Specific Relief Act, 1963.
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 The only Courts which can issue the writs are the High
Courts and the Supreme Court.
 By the Administrative Tribunals Act, 1985, writ
Jurisdiction has been conferred on the Administrative
Tribunals set up under that Act. These tribunals deal
with service matters of Government Servants. In relation
to these matters the writ jurisdiction of the High Courts
has been excluded by the Act.

 Exhaustion of other Remedies:

 If an adequate alternative remedy is available, a writ will
not ordinarily be entertained. The alternative remedies
should be exhausted before applying for the writ.
 There are several exceptions to this rule.

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Rashid Ahmed v. Municipal Board, Kairana, AIR 1950
SC 163, the petitioner was carrying on wholesale business in
Vegetables and Fruits in a municipal area. The Municipality
passed certain by-laws pursuant to which the monopoly of
wholesale purchase and sale of vegetables was given to H,
while others were forbidden to carry on such trade. The
petitioner was prosecuted for infringing the order and so the
petition was filed for directions requiring the respondent not
to prohibit the petitioner from carrying on his trade and to
withdraw the prosecution. He did not pursue the remedy of
an appeal to the Local Government which was the remedy
given by the United provinces Municipalities Act, 1916. It was
held that the existence of the alternative remedy was
immaterial as the order violated the petitioner’s fundamental
right of freedom to carry on trade.

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 In this case the Supreme Court laid down the following
principles :—
(1) The availability of a writ in the Supreme Court as a
remedy under Art. 32, for beach of a fundamental right
is itself a fundamental right. So the jurisdiction under
Art. 32, is not discretionary.
Art. 226, is available for enforcing fundamental rights in
the High Court. These two are not discretionary. But Art.
226, is available also for issuing writs for enforcement of
rights other than fundamental rights. The jurisdiction is
discretionary.
(2)It follows from the foregoing that where fundamental
rights are involved, the existence of an alternative
remedy is immaterial and the writ remedy can be
invoked without first exhausting the other remedies.

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(3)Even in other cases the writ remedy may be granted
notwithstanding the availability of an adequate alternative
remedy.
(a)When the Statute authorising the impugned act is ultra
vires.
(b)When the act complained of is ultra vires the Act under
colour of which it is done.
(c)When the act complained of is one without jurisdiction
and not merely one done irregularly in the exercise of
jurisdiction.
(4)The rule that a writ will not be issued when there is no
alternative remedy is not a rule of law. It is only a rule to
guide the discretion of the Court.

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Applicability of Doctrine of Res Judicata to writ
petitions.
 Res judicata means ‘things decided’. The doctrine of res judicata is to
the effect that once a matter is finally disposed of by a decision, the
same issue cannot be the subject-matter of a fresh proceeding. The
second proceeding would be barred by res judicata as the matter had
already been disposed of by a final decision.
 If an aggrieved person files a petition under Art. 226 before the High
Court for enforcement of a fundamental right and fails. a similar
petition under Art. 32 before the Supreme Court for the same relief
would be barred by applying doctrine of res judicata
 Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457 The earlier
petition should have been dismissed on merits. If it was withdrawn or
if it was dismissed in limine (i.e., on a preliminary point) the doctrine
of res judicata cannot be invoked in the later petition. With these
qualifications the principle of res judicata is applicable to writ
petitions.

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  However, if a Habeas corpus petition under Article 226, is
dismissed by the High Court, the Supreme Court can
entertain another petition for the same purpose under
Art. 32 (Ghulam Sarwar v. Union of India, AIR 1967 SC
1335 )

 The doctrine of constructive res judicata is inapplicable to

writ proceedings. According to this doctrine where the
first petition (or suit) is dismissed on one ground, a
second petition does not lie on another ground though
that other ground was not actually raised in the first
petition (or suit) if it could have been raised. That is, this
new ground is regarded constructively as already decided
in the first matter though it was not raised at all

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 Lallubhai Jagibhai Patel v. Union of India, AIR 1981 SC
728 - though a petition for Habeas Corpus is dismissed
on one ground, a second petition for Habeas Corpus lies
if a different ground is urged therein. It is immaterial
that this ground could have been urged in the first
petition also.
 The writ jurisdiction of the High Court under Art. 226,
and the writ jurisdiction of Supreme Court under Art. 32,
are based upon the provisions of the Constitution. So
this jurisdiction cannot be taken away by any
Statute.
 Clause (3) provides that ‘without prejudice to the
powers’ conferred on the Supreme Court by clauses (1)
and (2), Parliament may by law empower any other
court to exercise within the local limits of its jurisdiction
all or any of the powers exercisable by the Supreme
Court under clause (2).
04/24/2024 50
 In A.K. Gopalan’s case the court held that Art.32 being a
fundamental right it cannot be diluted by any legislation.
Thus Section 14 of the Preventive Detention Act which
did not give any scope for the detune to apporach any
court was struck down.
In Prem Chand Vs. Excise commissioner1961, 996 the
supreme court struck down its rules which required
security to move court under Art.32

04/24/2024 51
 In Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC
425. Sangram Singh sought a writ under Art. 226, for
quashing an order of an Election Tribunal refusing to set
aside certain ex parte proceedings which were being taken
against him. Sec. 105 of the Representation of People Act,
1951, provides : “Every order of the Tribunal made under
the Act shall be final and conclusive”. In spite of this
Section, Bose, J., held, “The jurisdiction of the High
Court under Art. 226, with that of the Supreme
Court above them remains to its fullest extent
despite Sec. 105”. The Supreme Court accordingly
quashed the order of the Tribunal.

04/24/2024 52
Laches: If there is undue delay the applicant is said to be guilty
of Laches. The law of limitation is inapplicable to writ petitions.
But since the remedy of writ is discretionary, courts insist that the
applicant for a writ should approach the court without undue
delay.
Hidayatullah, C.J., observed : “Where there is appearance of
avoidable delay and this delay affects the merits of the claim, this
court will consider the party disentitled to invoke the
extraordinary jurisdiction”. ( Motichand v. Munshi, Commissioner
of Sales Tax, Bombay, 1970 SCJ 859)
In Bheemaraju v. Government, of A.P., AIR 1981 SC 513, the
appointment of a Government Pleader was made on 6-8-78 and
the order was challenged on 6-8-79. The Andhra Pradesh High
Court held that since the matter raised related to a public office
and to the violation of legal procedure in making the
appointment, “we do not think that delay should deter us in
granting the discretionary relied and rendering justice”. The plea
of laches was rejected and the Court considered the case on the
merits.
04/24/2024 53
Challenge to the judgment and ratio decidendi of the
Supreme Court of an earlier decision.— The Supreme
Court held in Sanjay Singh v. U.P. Public Service Commission
(2007) 3 SCC 720 that: “It is true that judgment of this
Supreme Court cannot be challenged in a petition under
Article 32. It can, however, be reviewed under Art. 137 or in
exceptional circumstances reconsidered in exercise of
inherent power on a curative petition.”
However, The ratio decidendi of an earlier judgment can be
challenged then if the issue is the same and excepting where
it is between the same parties.
The court explained the difference between the words
“judgment” “ratio decidendi” and decision or order. The
Court held that every judgment contains three parts: (i) the
facts and the point at issue, (ii) the reason for the decision;
and (iii) the final order containing the decision.

04/24/2024 54
“The reasons for decision or the ratio decidendi is not the
final order containing the decision. Though, the ratio
decidendi may point to a particular result, the decision may
be different and not a natural consequence of ratio decidendi
of the judgment. “This may happen either on account of any
subsequent event or the need to mould the relief to do
complete justice in the matter; it is the ratio decidendi of a
judgment and not the final order in the judgment which
forms a judgment” The word judgment or decision is loosely
used to cover all. It is the final order which cannot be
questioned under Art. 32. The ratio decidendi can be
questioned, particularly, in a case where violation of a
Fundamental right of a citizen is alleged in a petition under
Art. 32.

04/24/2024 55
Writ absolute.— The Supreme Court held :
“If the court allows a writ petition and reasons were to
follow later, the first order allowing the writ petition and
issuing the writ absolute is the operative order. If reasons
thereof are supplied later, as a matter of convenience, the
later order containing reasons cannot go beyond the four
corners of the rule absolute already issued”. Delhi
Administration v. Gurdip Singh Uban, (2000) 7 SCC 296 :

04/24/2024 56
 Rule NISI: In the older practice, an order obtained ex
parte to show cause why it should not be set aside . The
rule will be made absolute i.e. the relief granted will be
affirmed unless ( nisi) sufficient cause is shown to set it
aside. If such cause is shown , the rule will be discharged.
In geneneral such orders are passed in the cases of
hebeas corpus
Who can apply ( Locus Standi)
Against whom it can be issued :
 Generally against state
 Court can make appropriate orders against private
invasion of fundamental rights
Reliefs that can be granted: Writs ,Orders,Directions
Other appropriate remedies – the court has wide discretion
- Compensatory jurisdiction. – PIL

04/24/2024 57
 The Writ Jurisdiction under Art. 32, is also a kind of original
jurisdiction. Under this Article the Supreme Court is
empowered to issue writs only for the enforcement of
fundamental rights. Under Art. 139, Parliament may by law
enlarge the writ jurisdiction to enable the Supreme Court to
issue writs for purposes other than the enforcement of
Fundamental Rights. But this has not been done so far.
 The Constitution (42nd Amendment) Act, 1976, made vital
modifications in regard to the court’s jurisdiction in certain
matters. The Supreme Court was to have exclusive
jurisdiction to pronounce upon the validity of any Central
law. The High Courts were deprived of such jurisdiction.
Correspondingly the High Court was to have exclusive
jurisdiction in regard to State laws unless the validity of a
Central law is also involved at the same time
 This defect has been removed by the 43rd Amendment,
1978,
04/24/2024 58
131. Original jurisdiction of the Supreme Court.— Subject
to the provisions of this Constitution, the Supreme Court shall, to
the exclusion of any other court, have original jurisdiction in any
dispute—
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on
one side and one or more other States on the other; or
(c) between two or more States,
if and in so far as the dispute involves any question (whether of law
or fact) on which the existence or extent of a legal right depends :
Provided that the said jurisdiction shall not extend to a dispute
arising out of any treaty, agreement, covenant, engagement, sanad
or other similar instrument which, having been entered into or
executed before the commencement of this Constitution, continues
in operation after such commencement, or which provides that the
said jurisdiction shall not extend to such a dispute. (Added by
constitution 7th amendment Act )

04/24/2024 59
 Original jurisdiction is the authority to conduct a trial and
decide the case in the first instance. In its original
jurisdiction the Supreme Court is a true Federal Court—a
tribunal for the settlement of disputes between the Union
and the constituent units of the Federation.

In State of Karnataka v. Union of India, AIR 1978 SC 68 : the

Union Government appointed a Commission of Inquiry to
investigate charges of corruption against the Chief Minister of
Karnataka. The State of Karnataka challenged the validity of
this action by a proceeding under Art. 131. The Government
of India contended that the jurisdiction under Art. 131,
cannot be invoked since the dispute was not with the “State”
of Karnataka but only with the Chief Minister. This contention
was rejected. The word “State” in this context includes the
“Government”.
04/24/2024 60
  The jurisdiction under Art. 131 (a) was invoked in two
other cases. State of West Bengal v. Union of India, AIR
1963 SC 1241 when the Union Government acquired
mines belonging to the State of West Bengal and
 in State of Rajasthan v. Union of India, AIR 1977 SC
1361 when the Union Government threatened to dissolve
the State Legislature.
 No case has so far arisen under clause (b) or clause (c)
of Art. 131
 Matters excluded from Original Jurisdiction. [Art.
131 Proviso; Art. 262; Art. 290). Certain matters are
excluded from the original jurisdiction of Supreme Court.

04/24/2024 61
 Disputes specified in the Proviso to Article 131.— The
Supreme Court has no jurisdiction over disputes which arise out of : (i) any
treaty, agreement, sanad or similar instrument which was entered into or
executed before the commencement of the constitution and which
continues in operation after such commencement; or (ii) any treaty,
agreement, sanad or similar instrument which provides that the said
jurisdiction shall not extend to such a dispute.
 Under Art. 363 (1) no court whatever can have jurisdiction in such
disputes.
 Umeg Singh v. State of Bombay, AIR 1955 SC 540 there was an
agreement of merger between the Dominion of India and the rulers of
certain native States which were merged later in the Province of Bombay.
Under Art. 5 of that agreement the Dominion Government agreed not to
interfere with the Jagirs existing at the date of the agreement. But the
Bombay Merged Territories and Areas (Jagirs Abolition) Act was passed in
1954, for the abolition of such Jagirs. The petitioners who were Jagirdars
contended in the Supreme Court that the Act was invalid as it contravened
Art. 5 of the merger agreement. Bhagwat J., held that the jurisdiction of
the Supreme Court was ousted by Art. 363, since the action related to
disputes arising out of the merger agreement.
04/24/2024 62
 Inter-states waters disputes.— Under Article 262 (2)
 Adjustment of certain expenses, pensions, etc., as
between the Union and the States.— Under Art. 290,

Other forms of Original Jurisdiction:

1. Art.32
2. Power to transfer cases (Art. 139-A).— The 42nd
Amendment inserted Art. 139-A, enabling the Supreme
Court while hearing a case to transfer to itself, on the
application of the Attorney-General, cases pending in High
Courts where common questions of law are involved. This
power is now extended. The Supreme Court can now do
this even suo motu or on the application of a party to any
such case. This is the effect of the 44th Amendment 1978.
3. Art. 71 Disputes arising in connection with the elections of
a President or Vice-President are to be enquired into and
decided by the Supreme Court
04/24/2024 63
Appellate jurisdiction of Supreme Court in appeals
from High Courts in certain cases. Art. 132
(1) An appeal shall lie to the Supreme Court
from any judgment, decree or final order of a High Court
in the territory of India, whether in a civil, criminal or other
proceeding, if the High Court certifies under article
134A that the case involves a substantial question of
law as to the interpretation of this Constitution.
(3) Where such a certificate is given, any party in
the case may appeal to the Supreme Court on the ground
that any such question as aforesaid has been wrongly
decided
Explanation.—For the purposes of this article, the
expression “final order” includes an order deciding an
issue which, if decided in favour of the appellant, would
be sufficient for the final disposal of the case.
04/24/2024 64
 Under Art. 132, of the constitution, an appeal lies 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 certificate is now granted under Art. 134-A which was
introduced by the 44th Amendment Act 1978.
 Previously Art. 132 cl. 2, contained a provision empowering the
Supreme Court to grant special leave to appeal on constitutional
questions. This is omitted by the 44th Amendment Act. 1978.
 But this makes no difference for under Art. 136, the Supreme
Court has power to grant special leave.
 Under Art. 132, an appeal lies to the Supreme Court even against
the judgment of a single judge of the High Court : Election
Commission of India v. Saka Venkata Rao, AIR 1953 SC 210 :
1953 SCJ 293.

04/24/2024 65
According to 147. Interpretation.— In this Chapter
and in Chapter V of Part VI, references to any substantial
question of law as to the interpretation of this Constitution
shall be construed as including references to any
substantial question of law as to the interpretation of the
Government of India Act 1935 (including any enactment
amending or supplementing that Act), or of any Order in
Council or order made there under, or of the Indian
Independence Act 1947, or of any order made thereunder.

04/24/2024 66
133.Appellate jurisdiction of Supreme Court in appeals from
High Courts in regard to civil matters.— (1) An appeal shall lie to
the Supreme Court from any judgment, decree or final order in a
civil proceeding of a High Court in the territory of India if the High
Court certifies under Article 134-A
(a) that the case involves a substantial question of law of general
importance; and
(b) that in the opinion of the High Court the said question needs to
be decided by the Supreme Court.
(2) Notwithstanding anything in Article 132, any party appealing to
the Supreme Court under clause (1) may urge as one of the
grounds in such appeal that a substantial question of law as to the
interpretation of this Constitution has been wrongly decided.
(3) Notwithstanding anything in this Article, no appeal shall, unless
Parliament by law otherwise provides, lie to the Supreme Court
from the judgment, decree or final order of one Judge of a High
Court.

04/24/2024 67
 Under Art. 133, as amended in 1972, by the Constitution
(Thirtieth Amendment) Act, 1972, an appeal lies to the
Supreme Court from any judgment, decree or final order
of a High Court in a civil proceeding, if the High Court
certifies :
 (a) that the case involves some substantial question of
law of general importance; and
 (b) the question needs to be decided by the Supreme
Court.
 Merely question of fact will not be entertained
In M/s Rang v. General Manager, Delhi Telephones, AIR
1997 SC 2653, the Supreme Court dealing with a dispute
between the above parties regarding payment or non-
payment of telephone bill held in the appeal under Art. 133,
that the disputed question is a question of fact and the
court will not decide the dispute as it is a question of fact.
04/24/2024 68
Before the 30th Amendment, 1972 an appeal
lay to the Supreme Court when the High Court
certified that the subject-matter in dispute was not
less than Rs. 20,000/- and that the decision
involved claims respecting property of that value.
This is no longer a ground for appeal. Monetary
value of the property involved is now immaterial.
It was also necessary that the High Court should
certify where it has affirmed the lower court’s
decision, that there was a substantial question of
law. Now it is immaterial whether the High Court
reversed or confirmed the decision of the lower
Court

04/24/2024 69
 Can it be supposed that the removal of the limit as to valuation
would increase the number of appeals to the Supreme Court?
 However, there is no automatic right of appeal to the Supreme
Court as was previously the case. The High Court should certify
that there is a substantial question of law and such question
deserves to be settled by the Supreme Court. This provision
will thus actually reduce the number of appeals to the Supreme
Court.
 Rival pleas put forward by parties raised for the first time in
appeal cannot be permitted - National Textile Corporation
(S.M.) Ltd. v. Associated Building Co. Limited, AIR 1996 SC 403
- In K.V. Jaisingh v. C.R. Govinda Swamy, Chettiar, AIR 1996 SC
2655 did not permit under Art. 133 a new plea which was not
taken before any court below
 The Supreme Court will not interfere under Art. 133 in a policy
matter of the Government (U.P. Katta factories Association v.
State of U.P., AIR 1996 SC 1997
04/24/2024 70
134. Appellate jurisdiction of Supreme Court in
regard to criminal matters.— (1) An appeal shall lie to
the Supreme Court from any judgment, final order or
sentence in a criminal proceeding of a High Court in the
territory of India if the High Court—
(a) has on appeal reversed an order of acquittal of an
accused person and sentenced him to death; or
(b) has withdrawn for trial before itself any case from any
court subordinate to its authority and has in such trial
convicted the accused person and sentenced him to death;
or

04/24/2024 71
 (c) certifies under Article 134-A that the case is a fit one
for appeal to the Supreme Court :
Provided that an appeal under sub-clause (c) shall lie
subject to such provisions as may be made in that
behalf under clause (1) of Article 145 and to such
conditions as the High Court may establish or require.
(2) Parliament may by law confer on the Supreme Court
any further powers to entertain and hear appeals from
any judgment, final order or sentence in a criminal
proceeding of a High Court in the territory of India
subject to such conditions and limitations as may be
specified in such law.

04/24/2024 72
 Before the constitution there was no court of criminal appeal
over the High Courts.
 The Privy Council could entertain criminal appeals by special
leave but it interfered only in very exceptional cases and was
not to be regarded as a regular Court of Appeal.
 Article 134, is an attempt to place the Supreme Court into a
court of criminal appeal over the High Courts, though with
only a limited jurisdiction confined to the three cases
mentioned in Article 134.
 The Criminal Appellate Jurisdiction of the Supreme Court has
been enlarged by the Supreme Court (Enlargement of
Criminal Appellate Jurisdiction) Act, 1970. The power to
entertain appeals under Article 134, is unaffected by this
Act. In addition to those powers appeals are provided in the
same set of circumstances when the punishment awarded is
imprisonment for life or imprisonment for a period of not
less than 10 years.
04/24/2024 73
 The Supreme Court is still not a regular Court of Appeal.
For instance, there is no right of appeal in the following
cases :—
(1) when the High Court reverses an order of conviction
and acquits the accused;
(2) when the High Court confirms an order of conviction
made by the sessions court. This is so even when death
sentence is awarded.
 the Supreme Court is a court of criminal appeals only to a
limited extent.
 however in its discretionary jurisdiction under Art. 136, the
Supreme Court can grant special leave to appeal even in
cases where there is no right of appeal under Art. 134, (or
under Art. 132 or Art. 133). But the jurisdiction under Art.
136, is purely discretionary and so on the basis of that
jurisdiction the Supreme Court cannot be described as a
regular court of criminal appeal.
04/24/2024 74
In Tarachand v. State of Maharashtra, AIR 1962 SC 130 the
accused was charged with the offence of murder under
Section 302, of the I.P.C. The sessions court convicted him
only under Section 304, i.e., for culpable homicide not
amounting to murder. The State appealed to the High Court.
The High Court sentenced the accused to death under
Section 302. The accused appealed to the Supreme Court.
The question arose whether the appeal was competent. It
was held that even though the trial had not ended in a
complete acquittal, still since he was acquitted of the charge
of murder by the sessions court and this was reversed by the
High Court, he could appeal under Art. 134 (1) (a) The fact
that in the trial court he was convicted of the lesser offence
of culpable homicide not amounting to murder does not
preclude the application of Art. 134 (1) (a).

04/24/2024 75
 The Supreme Court held that it would not interfere
with an interim order of the High Court passed in
pending second appeal under Art. 136. Ramakrishnan
v. Hindusthan Petroleum Corporation Ltd., AIR 2005
SC 2652.
 Though the plea relating to lack of jurisdiction was not
raised before the lower courts, in view of the
undisputed position on facts and in as much as a pure
question of law without any factual controversy is
involved, we feel interference on the facts of the case
is called for” (Moly v. State of Kerala, AIR 2004 SC
1890)

04/24/2024 76
 There is no embargo on the appellate court
reviewing the evidence upon which an order of
acquittal is based. Generally, the order of acquittal shall
not be interfered with because of the presumption of
innocence of the accused is further strengthened by
acquittal.” Between the two opposing views the view
favourable to the accused of innocence should be preferred
rather than that of a guilt. Ramanand Yadav v. Prabhu Nath
Yadav, AIR 2004 (Suppl.) SC 1053
 It is well settled if on the same evidence two views are
reasonably possible, the court below takes a view in
favour of the accused, the appellate court will not
set aside the order of acquittal unless it finds the findings
perverse, highly unreasonable, base on no evidence on
record or made in ignorance of relevant evidence on record
or for other such reasons. Ayodhya Singh v. State of Bihar,
AIR 2005 SC 1022.
04/24/2024 77
134-A. Certificate for appeal to the Supreme Court.—
Every High Court, passing or making a judgment, decree,
final order, or sentence, referred to in clause (1) of Article
132 or clause (1) of Article 133, or clause (1) of Article 134
—
(a) may, if it deems fit so to do, on its own motion; and
(b) shall, if an oral application is made, by or on behalf of
the party aggrieved, immediately after the passing or
making of such judgment, decree, final order or sentence,
determine, as soon as may be after such passing or making,
the question whether a certificate of the nature referred to
in clause (1) of Article 132, or clause (1) of Article 133 or, as
the case may be, sub-clause (c) of clause (1) of Article 134,
may be given in respect of that case

This provision of Art. 134-A, is intended to save time and

avoid delay.
04/24/2024 78
136. Special leave to appeal by the Supreme Court.—
(1) Notwithstanding anything in this Chapter, the
Supreme Court may, in its discretion, grant special leave
to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment,
determination, sentence or order passed or made by any
court or tribunal constituted by or under any law relating to
the Armed Forces.

04/24/2024 79
 Even if there is no regular right of appeal and even if
the High Court has not granted a certificate under
Art. 134-A, still by Special Leave of the Supreme
under Art. 136, may be granted
 in Pritam Singh v. State, AIR 1950 SC 169 the appeal
was against conviction on the charge of murder based
on concurrent findings of facts in the lower courts.
The Supreme Court held that it would not reconsider
the finding of facts as a Court of Appeal and since no
violation of the principle of natural justice had
occurred, the appeal was dismissed. Justice Fazl Ali
held that “Generally speaking this court will not grant
special leave unless it is shown that exceptional and
special circumstances exist, that substantial and
grave injustice has been done and that the case in
question presents features of sufficient gravity to
warrant a review of the decision appealed against”.80
04/24/2024
Mohinder Singh v. State AIR 1953 SUPREME COURT 415
following Pritam Singh case,. Mohinder Singh was charged
with the offence of murder. It was alleged that he had shot
the deceased with a gun on the chest. He was convicted by
the Sessions Judge and the conviction was upheld by the High
Court of Punjab. In appeal to the Supreme Court by special
leave, it was pointed out that the High Court was doubtful
whether the injuries to the deceased were caused by a gun or
by a rifle. This doubt could be removed only by the evidence of
a duly qualified expert. The prosecution in those
circumstances cannot be said to have proved the guilt of the
accused. But yet the High Court had confirmed the conviction.
The court held that the present case the decision on the
plea of alibi has been arrived at in disregard of the
principle that the standard of proof. The court held in
substance no fair and proper trial in this case, the court
allowed the appeal, set aside the conviction of the
appellant under Ss. 302 and 307 read with S. 34, Penal
Code, and directed that the accused be set at liberty 81
04/24/2024
the Supreme Court held that it will not entertain a
Criminal appeal except in special and exceptional
cases where it is manifest that by a disregard of the
forms of legal process or by a violation of the
principles of natural justice or otherwise substantial
and grave injustice has been done. Where the
appellant has been convicted notwithstanding the
fact that the evidence is wanting on a most material
part of the prosecution case, the Supreme Court will
entertain the appeal The court also stated that
under ordinary circumstances the court could have
remanded the case for a fresh trial but in the
circumstances of the case as the appellant has been
in a state of suspense over his sentence of death for
more than a year the court has arrived at the above
decision.
04/24/2024
(RELIED in AIR 2008 SC 533) 82
In State of Bihar v. Baswan Singh, AIR 1958 SC, a Police
Officer was convicted on a charge of bribery under Section
161, of the I.P.C. by the trial court. On appeal the High
Court of Patna set aside the conviction under the impression
that according to the decisions of the Supreme Court the
evidence of witnesses of police traps should not be accepted
unless corroborated by independent witnesses. The bribe-
givers and officer of the Anti-Corruption Department who in
disguise assisted the bribe-givers to trap the culprit, were
the witnesses. The High Court would have accepted their
evidence but for the erroneous assumption that Supreme
Court decisions required such evidence to be rejected in the
absence of independent corroboration. The Supreme Court
allowed the appeal by the State of Bihar and observed as
follows :“In this case the learned Judge accepted as correct
all the essential facts constituting the offence with which
the respondent was charged, but he passed an order of
acquittal on a misconception as to the effect of a decision of
this court. We have no doubt whatsoever that this is a fit
04/24/2024 83
case for the exercise of our jurisdiction under Art. 136, of
  The Supreme Court under Art. 136 does not interfere
with the concurrent findings of facts arrived at by the
courts below unless there is a grave injustice (Indra
Kaur v. Sheo Lal Kapoor, (1988)
 Under Art. 136 the Supreme Court can grant special
leave from any court. The Supreme Court has wide
powers to interfere and correct the judgment and
orders passed by any court or tribunal in the country.
Delhi Judicial Service Ass. v. State of Gujarat, (1991) 4
SCC 406.
 the court can grant special leave to appeal from
interlocutory order
 Under Art. 136 the Supreme Court has inherent
powers to withdraw or transfer pending cases
Union Carbide Corpn. v. Union of India, (1991)

04/24/2024 84
  In E.K. Chandrasenan v. State of Kerala, 1995 (1) JT
SC 496. The court observed, “that the power available
to this court under Article 136 is not circumscribed
by any limitation, in any case, power under Article
142 is available to pass such order as may be deemed
appropriate to do complete Justice”.
 The Supreme Court held in Suga Ram v. State of
Rajasthan, AIR 2006 SC 3258 that the power to
entertain an appeal from the High Court is vested in
the Supreme Court. But it does not confer any
right to invoke the jurisdiction of the Court under
this Article in any one.
 Court can use its power even suo motu under
Art. 136 in rarest of rare cases.— In Pawan Kumar
v. State of Haryana, AIR 2003 SC 2987
 Power under Art. 136 cannot be taken away by a
statute
04/24/2024 85
 In H.S.E.B. v. Rajbir Singh, 2003 (2) SLR 571, the
Supreme Court held that when a Special Leave Petition
under Art. 136 is dismissed by a non-speaking order it
does not attract the doctrine of merger. It does not
amount to declaration of law under Art. 141
 The Supreme Court in V.M. Salgaocar v. C.I.T., AIR 2000
SC 1623 made a distinction between the words
‘dismissed’ and ‘appeal is dismissed’ under Art. 136.
When the court says simply, ‘dismissed what the court
means is that it is not a fit case for exercise of
jurisdiction under Art. 136. But, when ‘appeal is
dismissed, though not a speaking order, the order of the
High Court is merged with that of Supreme Court.

04/24/2024 86
  The Supreme Court in Ramakant Rai v. Madan Rai, AIR
2004 SC 77, held that the court would entertain an
appeal by a private party under Art. 136 against
the judgment of the High Court acquitting the accused
even if the State would not file an appeal. The
jurisdiction of the Supreme Court under Art. 136 is not
that of a mere appellate authority, and the power is not
circumscribed by any limitation, though no individual
can claim for appeal as of right.

04/24/2024 87
137.Review of judgments or orders by the Supreme
Court.— Subject to the provisions of any law made by
Parliament or any rules made under Article 145, the
Supreme Court shall have power to review any judgment
pronounced or order made by it.
 When an appeal/special leave petition is dismissed, except
in rare cases where error of law or fact is apparent on the
record, no review can be filed; Tamil Nadu Electricity Board
v. N. Raju Reddiar, AIR 1997 SC 1005
 ‘review’ means re-examination or reconsideration. It is an
acceptance of the dictum ‘to err is human’. Review is not
an exercise in appellate jurisdiction. It is an
inherent power of the court. The power is exercised
in exceptional circumstance, (In Cauvery Water
Disputes Tribunal, AIR 1992 SC 522).

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 The Supreme Court in Zahira Habibula Sheik v.
State of Gujarat, AIR 2004 SC 3467, rejected
the application by Gujarat State for directions
and modifications of the judgment and order
directing retrial outside State in Best Bakery
case. The court held that it is in essence and
substance a review under the guise of
application for modification and direction,
knowing fully well such application for review
are not to be filed unless the court directs and
then listed. This is abuse of the process of the
court. It is misconceived. (vague)

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138. Enlargement of the jurisdiction of the
Supreme Court.— (1) The Supreme Court shall have
such further jurisdiction and powers with respect to any of
the matters in the Union List as Parliament may by law
confer.
(2) The Supreme Court shall have such further
jurisdiction and powers with respect to any matter as the
Government of India and the Government of any State
may by special agreement confer, if Parliament by law
provides for the exercise of such jurisdiction and powers
by the Supreme Court.

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139. Conferment on the Supreme Court of powers
to issue certain Writs.— Parliament may by law confer
on the Supreme Court power to issue directions, orders or
writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, or any
of them, for any purposes other than those mentioned in
clause (2) of Article 32.

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139-A. Transfer of certain cases.—1) Where cases involving the
same or substantially the same questions of law are pending
before the Supreme Court and one or more High Courts or before two
or more High Courts and the Supreme Court is satisfied on its
own motion or an application made by the Attorney-General
of India or by a party to any such case that such questions are
substantial questions of general importance, the Supreme Court may
withdraw the case or cases pending before the High Court or the High
Courts and dispose of all the cases itself :
Provided that the Supreme Court may after determining the said
questions of law return any case so withdrawn together with a copy
of its judgment on such questions to the High Court from which the
case has been withdrawn, and the High Court shall on receipt thereof,
proceed to dispose of the case in conformity with such judgment.
(2) The Supreme Court may, if it deems it expedient so to do for
the ends of justice, transfer any case, appeal or other proceedings
pending before any High Court to any other High Court
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 A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602. It
held that SC has no power under Art. 139-A to
withdraw a case from a special judge and transfer
it to High Court or to itself. It is the appropriate
High Court which has got powers to transfer a case
from a Subordinate court under one High Court to
another High Court.
Cholamandalam Investments & Finance Co. Pvt. Ltd. v.
Radhika Synthetics, AIR 1996 SC 1098 : (1996) 2 SCC
109. The Supreme Court held that the Bombay High Court
cannot exclude jurisdiction of Madras High Court when
both the courts have jurisdiction and the parties under
agreement made their choice to submit as the High Court
of Madras. The Supreme Court transferred the case to
Madras High Court to deal with the suit for recovery of
amount due under hire purchase agreement.
04/24/2024 93
140.Ancillary powers of Supreme Court.—
Parliament may by law make provision for conferring
upon the Supreme Court such supplemental powers
not inconsistent with any of the provisions of this
Constitution as may appear to be necessary or
desirable for the purpose of enabling the court
more effectively to exercise the jurisdiction
conferred upon it by or under this Constitution.

141. Law declared by Supreme Court to be

binding on all courts.— The law declared by the
Supreme Court shall be binding on all courts within the
territory of India.

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 The Supreme Court is empowered to declare the law
under Article 141. it is wider than law found or made
 ‘All Courts’ means the courts other than Supreme Court.
The supreme Court is not bound by its own judgments
and it can over rule its earlier judgments.
 Bengal Immunity company v State of Bihar
1956,631
In a proper case it is permissible for the Supreme
Court to go back upon its previous decision.
There is nothing in our Constitution which prevents
the Supreme Court from departing from a previous
decision if it is convinced of its error and its baneful
effect on the general interests of the public. Article
141 which lays down that the law declared by the
supreme Court shall be binding on all Courts within
the territory of India quite obviously refers to
Courts
04/24/2024
other than the Supreme Court. 95
 The Supreme Court should not lightly dissent from
a previous pronouncement of the Court. Its power
of review, which undoubtedly exists, must be
exercised with due care and caution and only for
advancing the public well-being in the light of the
surrounding circumstances of each case brought to
its notice but it is not right to confine its power
within rigidly fixed limits.
 If on a re-examination of the question it comes to
the conclusion, that the previous majority decision
was plainly erroneous then it will be its duty to say
so and not to perpetuate its mistake even when one
learned Judge who was party to the previous
decision considers it incorrect on further reflection.
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 The doctrine of stare decisis has hardly any
application to an isolated and stray decision of
the Court very recently made and not followed,
by a series of decisions based thereon. In any
case. the doctrine of stare decisis is not an
inflexible rule of law and cannot be permitted to
perpetuate errors of the Supreme Court to the
detriment to the general welfare of the public or
a considerable section thereof:

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 In Sajjan Singh v state of Rajasthan 1965,855 (Per
Gajendragadkar, C. J., Wanchoo and Raghubar Dayal,
JJ.-)The Constitution does not place any restriction on
the powers of supreme Court to review its earlier
decisions or even to depart from them and in matters
relating to the decision of constitutional points which
have a significant impact on the fundamental rights of
citizens, it would be prepared to review its earlier
decisions in the interest of public good. The doctrine
of state decisis may not strictly apply in this context
and the said doctrine should not be permitted to
perpetuate erroneous decisions pronounced by the
supreme Court to the detriment of general welfare.
Even so, the normal principle that judgments
pronounced by the supreme Court would be final,
cannot be ignored and unless considerations of a
substantial and compelling character make it
necessary
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 In such a case the test should be; is it absolutely
necessary and essential that the question already
decided should be re-opened? The answer to this
question would depend on the nature of the infirmity
alleged in the earlier decision, its impact on public
good and the validity and, compelling character of
the considerations urged in support of the contrary
new. If the said decision has been followed in a
large number of cases, that again is a factor which
must be taken into account
 Applying the above test the Supreme Court refused
to reconsider the correctness of its earlier decision in
Shankari Prasad's case, AIR 1951 SC 458.

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 The statements of the court on matters other than law have
no binding force.
 It is only the ratio of the decisions which is binding and not
finding of facts. “It is the principle founded upon a reading
of a judgment as a whole in the light of question before the
court that forms the ratio, and not any particular word or
sentence”.
 an ‘obiter dictum’ as distinguished from a ratio decedendi is
an observation by court on a legal question suggested in a
case before it but not arising in such a manner as to require
for a decision. Such an obiter may not be binding precedent
as observation was unnecessary for the decision
pronounced.
 But, obiter carries a considerable weight especially in
constitutional matters. (Directors of Settlements, A.P. v. M.R.
Apparao, AIR 2002 SC 1598)

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 An Advisory opinion of the Supreme Court is in all
reasonableness should have the same weight as that of
considered decisions.
 Any judgment of the High Court which refuses to follow the
decision or direction of Supreme Court set aside by the Supreme
Court is a nullity. A High Court cannot revive its own decision
contrary to the decision of the Supreme Court in that matter.
 High Courts cannot overrule the decisions of Supreme Court.
 The law declared by the Supreme court is also binding on the
administrative authorities even if they are not parties to a
particular case.
 Binding nature of previous decision had become an exploded
doctrine both in England and America.

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 “there is always peril in treating words of a judgment as
though they are words in a legislative enactment and it
is to be remembered that judicial utterances are made
in the setting of facts of a particular case. Circumstantial
flexibility, one additional or different fact may make a
difference between conclusions in two cases. Disposal of
cases by merely placing reliance on a decision is not
proper. Precedent should be followed only so far as it
marks the path of justice. Punjab National Bank v. R.L.
Vaid, AIR 2004 SC 4269,

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In Government of Karnataka v. Gowramma, AIR 2008 SC
863, the Supreme Court expounded the scope of Art. 141
and binding nature of a judgment. It held “Reliance on the
decision without looking into the factual background of the
case before it is clearly impermissible. A decision is a
precedent on its own facts. Each case presents its own
features. It is not everything said by a judge while giving a
judgment that constitutes a precedent. The only thing in a
Judges decision binding a party is the principle upon which
the case is decided and for this reason it is important to
analyze a decision and isolate from it the ratio decidendi.
According to the well-settled theory of precedents, every
decision contains three basic postulates (i) findings of
material facts, direct and inferential. An inferential finding
of facts is the inference which the Judge draws from the
direct, or perceptible facts; (ii) statements of the principles
of law applicable to the legal problems disclosed by the
facts; and (iii) judgment based on the combined effect of
the above.
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 Central Board of Dawoodi Bohra Community v. State
of Maharashtra, AIR 2005 SC 752.
 The legal position as to binding nature of decision delivered by
Bench of larger strength of the Supreme Court can be summed up
in the following terms :- (1) The law laid down by Supreme Court
in a decision delivered by a Bench of larger strength is binding on
any subsequent Bench of lesser or co-equal strength. (2) A Bench
of lesser quorum cannot doubt the correctness of the view of the
law taken by a Bench of larger quorum. In case of doubt all that
the Bench of lesser quorum can do is to invite the attention of the
Chief Justice and request for the matter being placed for hearing
before a Bench of larger quorum than the Bench whose decision
has come up for consideration. It will be open only for a Bench of
co-equal strength to express an opinion doubting the correctness
of the view taken by the earlier Bench of co-equal strength,
whereupon the matter may be placed for hearing before a Bench
consisting of a quorum larger than the one which pronounced the
decision laying down the law the correctness of which is doubted.
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(3) The above rules are subject to two exceptions : (i) the
abovesaid rules do not bind the discretion of the Chief
Justice in whom vests the power of framing the roster and
who can direct any particular matter to be placed for
hearing before any particular Bench of any strength; and
(ii) In spite of the rules laid down herein above, if the
matter has already come up for hearing before a Bench of
larger quorum and that Bench itself feels that the view of
the law taken by a Bench of lesser quorum, which view is in
doubt, needs correction or reconsideration then by way of
exception (and not as a rule) and for reasons it may
proceed to hear the case and examine the correctness of
the previous decision in question dispensing with the need
of a specific reference or the order of Chief Justice
constituting the Bench and such listing.

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 Thus, where a two-Judges Bench of the Supreme Court
was not inclined to follow the earlier three-Judge Bench
decision but there was no reference made by any Bench
of any strength at any time for hearing by a larger Bench
doubting the correctness of the Constitution Bench
decision and at no point of time the Chief Justice of India
had directed the matter to be placed for hearing before a
Constitution Bench or a Bench of seven-Judges, the order
of two Judges Bench directing the matter to be listed
before a seven-Judges Bench cannot be construed as an
order of reference. The matter should be placed for
hearing before Constitution Bench of five Judges and not
before a larger Bench of seven-Judges. Thereafter Chief
Justice of India may constitute larger Bench of seven-
Judges if Constitution Bench doubts correctness of
decision.
04/24/2024 106
142. Enforcement of decrees and orders of Supreme
Court and orders as to discovery, etc.— (1) The Supreme
Court in the exercise of its jurisdiction may pass such decree or
make such order as is necessary for doing complete justice in
any cause or matter pending before it, and any decree so
passed or order so made shall be enforceable
throughout the territory of India in such manner as may
be prescribed by or under any law made by Parliament
and, until provision in that behalf is so made, in such
manner as the President may by order prescribe.
(2) Subject to the provisions of any law made in this behalf
by Parliament, the Supreme Court shall, as respects the
whole of the territory of India, have all and every power to
make any order for the purpose of securing the
attendance of any person, the discovery or production of
any documents, or the investigation or punishment of
any contempt of itself.
04/24/2024 107
 Federal Court under Government of India Act did not have
such power
 ‘Complete Justice’ facilitates application of prospective
overruling.
 extraordinary jurisdiction under Art. 142.
Bonkya alias Bharat Shivaji Mane v. State of
Maharashtra, AIR 1996 SC 257 : (1995) 6 SCC 447, the
accused was not found guilty under S. 3 which is concerned
with intention to strike terror the court referring to a plea for
transfer of the case held that the transfer is not permissible.
The court observed that “the amplitude of powers available
to this court under Art. 142 of the Constitution of India is
normally speaking not conditioned by any statutory provision
but it cannot be lost sight that this court exercises jurisdiction
under Art. 142 of the constitution with a view to do justice
between parties but not in disregard of statutory provision”.
04/24/2024 108
 In Prakash Singh v. Union of India, (2006) 3 SCC (Cr)
417 : the Supreme Court held that it has the power to
make such order or decree to do complete justice in any
cause or matter till the Parliament makes a valid law on
that matter. It had directed all the Central and State
Governments and Union territories to constitute State
Security Commissions to ensure that they do not exercise
unwarranted influence or pressurize the State Police. It is
to facilitate the police to act in accordance with the law.
The constitution of a commission and the commission’s
recommendation are binding on the State and minimum
tenure of D.G. of Police in an assignment. The
Investigating Police shall be separated. A police
Establishment Board has to be constituted to make
transfers, postings and promotions and other service
related matters. There shall be a Police Complaints
Authority at the District level to look into complaints
against police officers. A National Security Commission
has to be constituted with respect to Central Police
04/24/2024 109
143. Power of President to consult Supreme Court.—
(1) If at any time it appears to the President that a
question of law or fact has arisen, or is likely to arise,
which is of such a nature and of such public importance
that it is expedient to obtain the opinion of the Supreme
Court upon it, he may refer the question to that court for
consideration and the court may, after such hearing as it
thinks fit, report to the President its opinion thereon.
(2) The President may, notwithstanding anything in the
proviso to Article 131, refer a dispute of the kind mentioned
in the said proviso to the Supreme Court for opinion and the
Supreme Court shall, after such hearing as it thinks fit,
report to the President its opinion thereon.

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 Under Sec. 213 of the Government of India Act, 1935,
the federal court has such power.
 Art. 143 is couched in wide terms – but it is not sitting as
an appellate court.
 As such on questions of law which the supreme court
already decided finally, the advisory jurisdiction would
not lie.
 This power is also akin to the power of the Privy council
in England with reference to Judicial Committee Act of
1833 with the difference that the dissenting opinions are
not permitted and it is obligatory to give opinion
 the Supreme Court of US does not have such provision.
– Canada has.

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 On receiving the reference the Registrar of the court
gives notice to the AG to appear before the court and
take its directions as to the parties who should be served
with the notice of such reference. The court may invite
such persons or group of persons as it deems fit
 The President may refer any matter, question of law
or fact which is of public importance even though it
would not fall under his powers and functions as
President
 The Advisory opinion is not binding on the President –
some times AG gives an undertaking to abide by the
opinion
 S.C. may decline to give opinion. However it can not
refuse to give opinion on the ground that it is purely a
political question – it should not also decline on the
grounds of expediency and propriety or on the ground of
futility
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 It is the ‘satisfaction’ of the President and he may refer
the questions of law or fact which may ‘likely’ to arise
 The expression ‘likely’ is wide. However, purely
speculative or hypothetical questions should not be asked
 While giving its AO the SC is not abrogating Art. 32 nor is
it affecting privileges of the parliament.
 In thirteen cases the S.C. has given AO

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 Inre Delhi Laws Act, 1951, 332
Authoritative opinion with reference to administrative Law.
Refers to legislative power – delegated legislation etc.
Delhi Laws Act, 1912, s. 7--Ajmer-Merwara (Extension of
Laws) Act, 1947, s. 2--Part C States (Laws) Act, 1950--Laws
giving power to Government to extend to Delhi and Ajmer-
Merwara with such restrictions and modifications as it thinks
fit any law in force in any other part of India--Law
empowering Government to extend to Part C States any law
in force in a Part A State and to repeal existing laws --Valid-
ity--Rule against delegation of legislative powers--Scope and
basis of the rule--Applicability to India--Difference between
delegation of legislative power and conditional legislation--
Powers of Indian Legislature under the Indian Councils Act,
1861, the Government of India Act, 1935, and the Indian
Constitution, 1950
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Inre Kerala Education Bill, 1958 996
Ambit and scope of Art. 143 was discussed –
Legislation by State to implement directive principles -
Legislation cannot override fundamental rights - Principle
of harmonious construction to be followed.
Presumption as to constitutionality.
Right of minorities to establish and maintain educational
instaitutions
Definition of minority etc.
While under clause (2) of Art. 143 it is obligatory on the
Supreme Court to entrain a reference and to report to the
President its opinion thereon, that Court has, under
clause (1) a discretion in the matter and may in a proper
case and for good reasons decline to express any opinion
on the questions submitted to it.

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 It is for the President to determine what questions should
be referred and if he does not entertain any serious
doubt on the other provisions, it is not for any party to
say that doubts arise also out of them and the Supreme
Court cannot go beyond the reference and discuss those
problems. The circumstance that the President has not
thought fit to refer other questions as to the
constitutional validity of some of the clauses of the said
Bill on the ground that they infringe other provisions of
the Constitution cannot be a good or cogent reason for
declining to entertain the reference and answer the
questions touching matters over or in respect of which
the President does entertain some doubt.

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Inre berubari Union 1960 845
Preamble – Art. 2 &3
Inre Sea Customs Act, 1963, 1760
Immunity of property and income of States from Union
taxation - Scope and extent of - Levy of customs duties
(export or import) and excise duties by Union on property of
State - Levy not covered by exemption and can be validly
imposed.
Keshav singhs case 1965, 745
Regarding privileges
Inre Presidential Poll 1974, 1682
Dissolution of Legislative Assembly of a State before expiration
of President's term - Election of President to fill vacancy in the
office caused by expiration of term - Whether can be held
before expiration of term - Or can be held up until fresh
elections are held in the State - Word "otherwise" in Art.
62(2), meaning- Electoral College for election of President -
Whether
04/24/2024 affected by dissolution of Legislative Assembly of a117
Inre Special Courts Bill, 1978

In the matters of Cauvery Water Disputes Tribunal,

1992 (Court refused to answer – as the opinion is
only advisory – no specific question)
Article 143--Advisory Jurisdiction--Whether Court can review its
opinion--Whether President can refer a question of law already
decided by the Court--Advisory opinion on Presidential Reference--
Con- stitutional validity of--Legislative competence of State
Legislature--Whether denuded by Parliamentary legisla- tion--
Whether State Legislature can change the law declared by Court--
Whether can set aside decision of inter-parties and affect their
rights and liabilities alone---Whether Inter-State Disputes Act
enacted under Article 262 or Entry 56--Distinction inter se
between Article 262. Entry 56 of List I and Entry 17 of List II---
Executive Order or legisla- tive enactment of State Legislature
interfering with adjudi- catory process of Water Tribunal--Whether
interference with judicial power of State.
04/24/2024 118
Ref. Ramjanmabhumi1993
Refused to answer
Refernce was in favour of one community over the other –
opposed to secularism
It proposes to use the opinion for negotiations, and not
settling the dispute
The opinion of the experts is required
The principal protoganists would not appear.

Reference on the principles and procedure

regarding appointment of judges in 1998

Gujarat Assembly matter: premature dissolution of

Assembly

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 Inre Gujarat Gas Act 2001 : refernce to competnce of
the parliament to pass law for regulation and development
of oil fields, mineral oil resources , petroleum, under r
Entry 53 of List I. Entry 25 of List II has limited pupose of
gas manufacured and used in gas works. To that extent
the Gujarat Act was held void.

Inre 2G spectrum Case.

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144.Civil and judicial authorities to act in aid of
the Supreme Court.— All authorities, civil and
judicial, in the territory of India shall act in aid of the
Supreme Court.
145. Rules of court, etc.— (1) Subject to the
provisions of any law made by Parliament, the Supreme
Court may from time to time, with the approval of the
President, make rules for regulating generally the
practice and procedure of the court including—
(a) rules as to the persons practising before the
court;
(b) rules as to the procedure for hearing appeals and
other matters pertaining to appeals including the time
within which appeals to the court are to be entered;
(c) rules as to the proceedings in the court for the
enforcement of any of the rights conferred by Part
III;
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(cc) rules as to the proceedings in the court under
Article 139-A;
(d) rules as to the entertainment of appeals under
sub-clause (c) of clause (1) of Article 134;
(e) rules as to the conditions subject to which any
judgment pronounced or order made by the court may be
reviewed and the procedure for such review
including the time within which applications to the court
for such review are to be entered;
(f) rules as to the costs of and incidental to any
proceedings in the court and as to the fees to be charged
in respect of proceedings therein;
(g) rules as to the granting of bail;

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(h) rules as to stay of proceedings;
(i) rules providing for the summary determination of any
appeal which appears to the court to be frivolous or
vexatious or brought for the purpose of delay;
(j) rules as to the procedure for inquiries referred to in
clause (1) of Article 317.
(2)Subject to the provisions of clause (3), rules made under
this article may fix the minimum number of Judges who
are to sit for any purpose, and may provide for the
powers of single Judges and division courts.
(3) The minimum number of Judges who are to sit for
the purpose of deciding any case involving a
substantial question of law as to the interpretation of
this Constitution or for the purpose of hearing any
reference under Article 143 shall be five :

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 Provided that, where the court hearing an appeal
under any of the provisions of this Chapter other than
Article 132 consists of less than five Judges and in the
course of the hearing of the appeal the court is
satisfied that the appeal involves a substantial
question of law as to the interpretation of this
Constitution the determination of which is necessary
for the disposal of the appeal, such court shall refer
the question for opinion to a court constituted as
required by this clause for the purpose of deciding any
case involving such a question and shall on receipt of
the opinion dispose of the appeal in conformity with
such opinion

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 (5) No judgment and no such opinion shall be
delivered by the Supreme Court save with the
concurrence of a majority of the Judges present at the
hearing of the case, but nothing in this clause shall be
deemed to prevent a Judge who does not concur from
delivering a dissenting judgment or opinion.

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