INTRODUCTION

The power and functioning of different branches of government is intertwined with their
structure. A bicameral legislature functions differently from unicameral one. The Indian
Judicial system, particularly the upper judiciary plays a central role in Indian political life and
is widely covered in the media; there has been limited academic literature on the impact of
the judiciary’s structure. The functioning of the Indian Supreme Court has only begun to be
explored1, and even less attention has been given to India’s High Courts and subordinate
judiciary.2 The top-heaviness of the Indian judiciary is striking, both in terms of the relative
power of the upper judiciary and the number of cases these courts hear in relation to the
subordinate. The origins of this top-heaviness are partly historical.

The Supreme Court of India is the Apex Court and is the final interpreter of the Constitution
and the laws3. The Court is also known as the guardian and the protector of the people’s
Fundamental Rights. The Court is not only the sentinel of the Fundamental Rights, but also, a
balancing wheel between the Rights and social control4. The Supreme Court is the final Court
of Appeal in all civil, criminal and other matters and thus, helps in maintaining a uniformity
of law throughout the territory of India5. The Court is held to be the ultimate repository of all
judicial powers at National level by virtue of it being the Summit Court at the pyramidal
height of Administration of Justice in the country and as the upholder and the final interpreter
of the Constitution of India and defender of the fundamentals of RULE OF LAW 6. The Court
is duty bound to uphold the constitutional values and enforce constitutional limitations, as the
ultimate interpreter of the Constitution. The People of India look upon the Supreme Courts an
instrument of social justice and a guarantor of the great ideals enshrined in the Constitution7.

The Supreme Court sits in New Delhi8. The Chief Justice may also direct that judges of the
Court sit in other parts of the country with the approval of the President. There are

1
Rajeev Dhavan, The Supreme Court Under Strain: The Challenge of Arrears (NM Tripathi 1978).
2
Rajeev Dhavan, Litigation Explosion in India (NM Tripathi 1986).
3
Article 141 of the Constitution of India.
4
Sahara India Real Estate Corp. Ltd v. S.E.B.I. , AIR 2012 SC 3829
5
Union of India v. Sankalchand Himatlal Sheth. AIR 1977 SC 2328
6
Raja Ram Pal v. Hon’ble Speaker , (2007) 3 SCC 184
7
I.R. Coetho v. State of T.N. , AIR 2007 SC 861
8
Constitution of India 1950, art. 130
1
longstanding demands from elsewhere in India, particularly the south, for judges to sit in
multiple locations as the Court disproportionately hears cases originating from Delhi and
nearby States9. However, the judges of the Supreme Court have traditionally resisted attempts
to have benches outside the capital, fearing that such practice would further weaken the
Court’s sense of institutional integrity.

Since, opening its doors, the Supreme Court has witnessed an ever-ballooning increase in its
workload. Today, panels of two judges typically hear whether the Court should admit a case.
This practice occurs during admission hearings, which currently occur on Monday and
Friday, during which a single bench will commonly hear seventy to eighty matters.

In the Supreme Court’s first year of operation in 1950 over 1,000 admissions matters were
filed. By 1970, over 4,000 were filed, and by 1980 this had jumped to over 20,000. In 2010,
almost 70,000 admission matters were filed with the Court, while it disposed of 7,642 regular
hearing matters10.To accommodate the increasing number of cases, Parliament increased the
maximum size of the Court from its original eight judges to eleven in 1956, seventeen in
200811.

9
Robinson (n1) 587
10
Nick Robinson, ‘Structure Matters: The Impact of Court Structure on the Indian and U.S. Supreme Court’s
(2013)61(1) American Journal of Comparative Law 173,180-81.
11
Robinson (n 35) 182

2
 ARTICLE 124

Establishment and constitution of Supreme Court

(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 seven12 other Judges.
(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under
his hand and seal after consultation with such of the Judges of the Supreme Court and of the
High Courts in the States as the President may deem necessary for the purpose and shall hold
office until he attains the age of sixty-five years:
Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief
Justice of India shall always be consulted:
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.]
(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.
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.
(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 misbehaviour or incapacity.
(5) Parliament may by law regulate the procedure for the presentation of an address proof and
for the investigation of the misbehaviour or incapacity of a Judge under clause (4).

12
Now “thirty”, vide the Supreme Court Amendment Act, 2008.
3
(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.

EXPLANATION

At the commencement of the Constitution, the Supreme Court consisted of a Chief Justice of
India13 and not more than seven other judges. At present, the Supreme Court of India consists
of a Chief Justice of India and 30 other Judges14.

It is the President who appoints the Judges to the Court. However, his discretion, in this
matter, is restricted in the sense that he is required to hold consultation with Judges of the
Supreme Court and of the High Court’s while making appointment of Judges. Proviso to
Clause (2) of Article 124 expressly requires that the President must consult the Chief Justice
of India, in case of appointment of Judges other than the Chief Justice. Though, appointed by
the President, a Judge of the Supreme Court has no employer. He is a constitutional
functionary15. Article 124 (2) does not prescribe the number of Judges of the Supreme Court
and the High Courts, which the President should consult in making appointment of Supreme
Court Judges. The President is not bound to follow the advice of those whom he consults.

In S.P. Gupta v. Union of India16, it was held by the Supreme Court that the word
consultation had the same meaning under Article 124 (2) as it was given under Article 222.
The Court observed that the appointment of Judges was not an executive act but the result of
consultation process which must be observed in word and spirit17.

13
The Chief Justice of India is known as the pater familias of Indian Judiciary.
14
Justice Fateema Beevi; J. Sujata Manohar; J. Ruma Pal; J R Banumathi are woman Judges elevated to the
Apex Court, since commencement of the Constitution.
15
Deoki Nandan v. Union of India, AIR 1999 SC 1951.However, it is meant “full and effective consultation”.
16
AIR 1982 SC 149. This case is known as the First Judges Transfer case.

4
Thus, the consultation must be effective and implies exchange of views after examining the
merits, but does not mean concurrence.

In S.C. Advocates–on-Records Association v. Union of India18, (Second Judges case) ,

the Supreme Court , by majority of 7 to 2 had laid down principles and prescribed procedural
norms in regard to the appointment of Judges to the Supreme Court. The Court, inter alia, had
ruled that the opinion of the Chief Justice of India formed by him collectively, i.e., after
taking into account views of the two senior most Judges of the Supreme Court as also the
views of other Judges of the Supreme Court whose opinion is likely to be significant in
adjudging the suitability of the candidate, would have primacy.

Doubts had arisen about the interpretation of law and manner in which the norms laid down
in the Second Judge’s case19, on appointments and transfers. The President considered it in
the public interest to seek the advisory opinion of the Supreme Court and referred the Court ,
nine questions for clarification, under Article 143.

RE PRESIDENTIAL REFERENCE, AIR 1999 SC 1

A nine Judges Bench of the Supreme Court has held that recommendations made by the
Chief Justice of India without complying with the “norms and requirements of the
consultation process” were not binding on the Central Government.

The following propositions were laid down:-

a) As to the appointment of the Supreme Court Judges, the Chief Justice of India should
consult a collegium of four senior most Judges of the Apex Court. Even if two judges
give an adverse opinion, the CJI should not send the recommendation to the
Government.
b) Giving primacy to the CJI’s opinion laid down in the 1983 judgement, the judges said,
“The collegiums should make the decision in consensus and unless the opinion of the

18
AIR 1994 SC 268
19
S.C. Advocates-on-Record Association v. Union of India , AIR 1994 SC 268
5
 collegiums is in conformity with that of the Chief Justice of India, no
recommendation is to be made.”
c) Regarding the transfer of the High Court judges, in addition to the collegiums of four
seniormost Judges, the CJI was obliged to consult the Chief Justice of two High
Courts.
d) In regard to the appointment of High Court Judges, the CJI was required to consult
only two seniormost Judges of the Apex Court.
e) The consultation process requires “consultation of plurality of Judges.” The sole
opinion of CJI does not constitute the consultation process.
f) The transfer of pusine Judges of the High Courts was judicially reviewable, only if the
CJI had recommended the transfer without consulting the four seniormost Judges of
the Apex Court and two Chief Justices of the High Court concerned.
g) The requirement of consultation by the CJI with his colleagues does not exclude
consultation with those Judges who are conversant with the affairs of the High Court
concerned either as a parent court or who have occupied the office of a Judge or Chief
Justice of that Court on transfer from his parent High Court or any other court.
h) Strong and cogent reasons must exist regarding a person’s name not being
recommended. Only positive reasons may be given. The view of the other Judges
consulted by the CJI should be in writing and the same should be conveyed to the
Government, along with the recommendation by the CJI.

Qualifications for appointment of Judge [ARTICLE 124 (3)]:

Clause (3) of Article 124 lays down the qualifications for a person to be appointed as
a Judge of the Supreme Court. It follows that a person should possess two
qualifications to be appointed as a Judge. Firstly, he must be a citizen of India and
secondly, he must possess any of the qualifications mentioned in Article 124 (3) (b)
(c) (d).

Tenure of Office [ARTICLE 124 (2)]:

Clause (2) of Article 124 provides that Judge of the Supreme Court shall hold office
until he attains the age of 65 years. A Judge may, however, design his office by

6
 writing under his hand addressed to the President. He may be removed from his office
in the manner provided in clause (4) of Article 124.

Removal of Judges [ARTICLE 124 (4)]:

A Judge of the Supreme Court may be removed by an order of the President on the
ground of proved misbehaviour or incapacity20.
The order of the President can only be passed after he has been addressed to both the
Houses of the Parliament in the same Session21. The address must be supported by
each House, by a majority of total membership of that House and also by majority of
not less than two-thirds of the members present and voting.
The procedure for the presentation of an address and for the investigation and the
proof of the misbehaviour or incapacity of a Judge will be determined by Parliament
by law22 .

In K. Veeraswami v. Union of India23, the Supreme Court, by majority of 4 to 1,

held that a Judge of the Supreme Court and of a High Court could be prosecuted and
convicted for criminal misconduct. The Court said that the expression misbehaviour
in Article 124(5) included criminal misconduct defined in the Prevention of
Corruption Act, 1947. The expression “public servant” in Section 6 (1) (c) and ( 2)
includes a Judge of the Supreme Court or a High Court. Therefore, a judge can be
prosecuted for offences under Section 5 (1) (e) of the Prevention of Corruption Act,
1947.

In C. Ravi Chandran Iyer v. Justice A.M. Bhattacharjee24, the Supreme Court held
that only the CJI, considered to be the first among Judges could be the prime mover
for taking action against an erring Judge or Chief Justice of a High Court, whose bad
conduct fell short of punishment by impeachment.

20
See clause (4) of Article 124.
21
Sarojini Ramaswami v. U.O.I. , AIR 1992 SC 2219
22
Clause (5) of Article 124.
23
(1991) 3 SCC 655
24
(1995) 5 SCC 457
7
 In this case, the petitioner, a practicing advocate, moved the Supreme Court under
Article 32, by a public interest litigation, for issuing an appropriate writ, order or
direction restraining permanently the Bar Council of Maharashtra and Goa, Bombay
Bar Association and the Advocates Association of Western India from coercing Mr.
A.M. Bhattacharjee, the then Chief Justice of Bombay High Court, to resign from his
office. The allegations against the Chief Justice were financial irregularities alleged to
have been reflected in disproportionate amount of royalty received by him from a
foreign publisher which are kept confidential and not properly explained.
The Supreme Court held that the resolutions passed by Bar Council and Bar
Association against the Chief Justice alleging bad conduct and pressurising or
coercing him to resign had no constitutional sanction and it would amount to
contempt and would affect the Independence of Judiciary, which was essential

attribute of rule of law.

ARTICLE 125
SALARIES AND ALLOWANCES
(1) There shall be paid to the Judges of the Supreme Court such salaries as may be
determined by Parliament by law and, until provision in that behalf is so made, such salaries
as are specified in the Second Schedule.

(2) Every Judge shall be entitled to such privileges and allowances and to such rights in
respect of leave of absence and pension as may from time to time be determined by or under
law made by Parliament and, until so determined, to such privileges, allowances and rights as
are specified in the Second Schedule:

Provided that neither the privileges nor the allowances of a Judge nor his rights in respect of
leave of absence or pension shall be varied to his disadvantage after his appointment.

EXPLANATION

8
Clause (1) of Article 125 empowers the Parliament to determine the salaries to be paid to the
Judges of the Supreme Court25.Until provisions in that behalf was made, the Judge was to get
such salaries as are specified in the Second Schedule to the Constitution.

The High Court and Supreme Court Judges (conditions of service) Amendment Act, 2009 has
raised the salary of a Judge of the Supreme Court to Rs. 90,000/- p.m. and that of the Chief
Justice of India to Rs. 1, 00,000/- p.m.

The privileges, allowances or other rights of a Judge of the Supreme Court, shall not be
varied to his disadvantage after his appointment26. However, the salary of a Judge of the
Supreme Court is taxable under the Income Tax Act, 196127.

In Mr. Justice Deoki Nandan Agarwala v. Union of India28, the subject of the salary of a
High Court and Supreme Court Judge and the subject of tax on income are altogether
different and the conclusion that is sought to be drawn is quite unacceptable. The salary of a
Judge of a High Court and the Supreme Court is income and is taxable by Act of Parliament
in just the same manner as is the income of any other citizen.

It is contended qua that, in any event, a Judge of a High Court and the Supreme Court has no
employer and, therefore, what he receives is not salary; accordingly, what he receives as
remuneration is not taxable under the head of salary under the Income Tax Act. To our mind,
there is a misconception here. It is true that High Court and Supreme Court Judges have no
employer, but that, ipso facto, does not mean that they do not receive salaries. They are
constitutional functionaries. Articles 125 and 221 of the Constitution deal with the salaries of
Supreme Court and High Court Judges respectively and expressly state that what the Judges
receive are salaries. It is not possible to hold, therefore, that what Judges receive are not
salaries or that such salaries are not taxable as income under the head of salary.

25
Inserted by the Constitution (54th Amendment) Act, 1986.

26
Proviso to Clause (2) of Article 125. See also Article 112(3). Financial Emergency, during which the salary
and allowances of the Judges can be reduced, by the President, by order.
27
See Justice Deoki Nandan Agarwala v. Union of India, AIR 1999 SC 1951
28
AIR 1999 SC 1951
9
 ARTICLE 126
APPOINTMENT OF ACTING CHIEF JUSTICE

When the office of Chief Justice of India is vacant or when the Chief Justice is, by
reason or absence or otherwise, unable to perform the duties of his office, the duties
of the office shall be performed by such one of the other Judges of the Court as the
President may appoint for the purpose.

ARTICLE 127
APPOINTMENT OF AD HOC JUDGES
(1) If at any time there should not be a quorum of the Judges of the Supreme Court available
to hold or continue any session of the Court, the Chief Justice of India may, with the
previous consent of the President and after consultation with the Chief Justice of the
High Court concerned, request in writing the attendance at the sittings of the Court, as an
ad hoc Judge, for such period as may be necessary, of a Judge of a High Court duly
qualified for appointment as a Judge of the Supreme Court to be designated by the Chief
Justice of India.
(2) It shall be the duty of the Judge who has been so designated, in priority to other duties of
his office, to attend the sittings of the Supreme Court at the time and for the period for
which his attendance is required, and while so attending he shall have all the jurisdiction,
powers and privileges, and shall discharge the duties, of a Judge of the Supreme Court.

The Ad Hoc Judge shall attend the sitting of the Court in priority to other duties of his
office at the time and for the period for which his attendance is required.

10
 ARTICLE 128
ATTENDANCE OF RETIRED JUDGES
Notwithstanding anything in this chapter, the Chief Justice of India may at any time, with
the previous consent of the president, request any person who has held the office of a
Judge of the Supreme Court or of the Federal Court or who has held the office of a Judge
of a High Court and is duly qualified for appointment as a Judge of the Supreme Court to
sit and act as a Judge of the Supreme Court, and every such person so requested shall,
while so sitting and acting, be entitled to such allowances as the President may by order
determine and have all the jurisdiction, powers and privileges of, but shall not otherwise
be deemed to be, a Judge of that Court: Provided that nothing in this article shall be
deemed to require any such person as aforesaid to sit and act as a Judge of that Court
unless he consents so to do.

ARTICLE 130
SEAT OF SUPREME COURT
The Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice
of India may, with the approval of the President, from time to time, appoint.

EXPLANATION
Article 130 provides that the Supreme Court shall sit in Delhi. However, the Chief
Justice of India, May with the prior approval of the President, requires the Court to sit in
such other places or places, as he may appoint. It is an enabling provision which
postulates a decision by the CJI and approval of the President to the proposal made by
the CJI. No Court can give direction in this matter29.
It has been ruled in Union of India v. S.P. Anand30, whether the writ petition raises an
arguable issue relating to interpretation of Article 130 is a matter which can be agitated
before the Supreme Court and not before the High Court.

29
Union of India v. S.P. Anand , AIR 1998 SC 2615
30
AIR 1998 SC 2615
11
 Recently, the Apex Court turned down the proposal of the Government, for setting up a
Bench of the Court outside the Delhi. After reconsideration of the matter by the Full
Court, comprising 27 Judges and headed by the Chief Justice, K.G. Balakrishnan in their
meeting held on February 20, 2010, the Court informed that they found no justification
for deviating from their earlier resolution on the subject31.

JURISDICTION OF THE SUPREME COURT

A. As a Court of Record ( Article 129)

B. Writ Jurisdiction (Article 32)
C. Original Jurisdiction ( Article 131)
D. Appellate Jurisdiction-
1) In Constitutional matter (Article 132)
2) In Civil matter (Article 133)
3) In Criminal matter ( Article 134)

E. Appeal by Special Leave (Article 136)

F. Federal Court’s Jurisdiction (Article 135)
G. Review Jurisdiction (Article 137)
H. Advisory Jurisdiction (Article 143)

31
See THE HINDU, 21-02-2010.
12
13
14
 ARTICLE 129

AS A COURT OF RECORD
The Supreme Court shall be a court of record and shall have all the powers of such a court
including the power to punish for contempt of itself.

EXPLANATION

The Supreme Court is declared to be a Court of Record. A Court of Record is that court, the
records of which are admitted to be evidentiary value and cannot be questioned when they are
produced before a Court32. A Court of record has inherent power, being such a Court, to
punish for contempt of itself33.

The Contempt of Courts Act, 1971, which embodies the Common Law of Contempt, defines
the powers of Courts for punishing contempt of Courts and regulates the procedure there for.
Section 2 (a) of the Act provides that “Contempt of Court” includes both civil as well as
criminal contempt.

Civil contempt means wilful disobedience of any judgement, decrees, direction, order, writ or
other process of a Court or wilful breach of the Court.

In Mohd. Aslam v. Union of India, the Supreme Court held Mr. Kalyan Singh, the Chief
Minister of the State of Uttar Pradesh, guilty of contempt of the Supreme Court for violating
the order of the Court, not to allow any permanent structure on the disputed Ram Janam
Bhoomi Babari Masjid site in Ayodhya. The Court said that the Chief Minister had
committed breach of the assurance given by him in this respect.

Criminal contempt means publication,(whether by words, spoken or written, or by signs or

visible representation or otherwise) of any matter or doing of any act, whatsoever, which (i)
scandalises or tends to scandalise the authority of the Court, or (ii) prejudices or tends to

32
Government of A.P. v. Official Liquidator, AIR 2002 A.P. 220 .
33
Dr. B.R. Ambedkar, CAD, VII, 382.
15
prejudice or interferes with the due course of any judicial proceedings, or (iii) interferes or
tends to interfere or obstruct, the administration of justice, in any manner34.

Contempt is an offence sui generis35. It is a matter between the Court and the contemnor36.
The object of the power of the Court to punish a person for contempt is, to enable the Court,
to ensure proper administration of justice and maintenance of the rule of law. It is meant to
ensure that the Courts discharge their functions properly, unhampered and unsullied by
wanton attacks on the system of administration of justice from being maligned37.

The non- appearance of a lawyer, either in the name of a strike or otherwise, has been held as
a criminal offence.

In re: S.K. Sharma38, a telegram sent by an advocate to the Chief Justice of India, to step
down on grounds of giving wrong age and using other intimidatory epithet, was held to be a
criminal contempt.

A contempt of Court may be punished with simple imprisonment for a term which may
extend to six months, or with fine which may extend to Rs. 2000, or with both39.

A three Judge Bench of the Supreme Court in Sudhir Vasudeva, Chairman and MD,
ONGC v. M. George Ravishekaran40, explaining the scope of contempt jurisdiction vested
in the High Court under Article 215 and the Supreme Court under Article 129, said:

....adjudication of a contempt plea involves a process of self determination .Of the sweep,
meaning and effect of the order, in respect of which disobedience is alleged. Courts must not,
therefore, travel beyond the four corners of the order which is alleged to have been flouted or
enter into questions that have not been dealt with or decided in the judgement or the order
violation of which is alleged .Thus, only such direction which are explicit in a judgement or
order which are plainly self evident ought to be taken into account for the purpose of
consideration as to whether there has be any disobedience or wilful violation of the same.

34
Section 2 (c) of the Contempt of Courts Act, 1971.
35
Sahara India v. SEBI, AIR 2012 SC 3829.
36
Mahalakshmi Sugar Mills Co. Ltd. V. Union of India, AIR 2009 SC 992.
37
Rajendra Sail v. M.P. High Court Bar Association, decided on 21-04-2005.
38
JT 2001 (1)SC 81
39
Section 12 of the Contempt of Courts Act, 1971.
40
AIR 2014 SC 950.
16
The Court thus, said that, decided issues could not be reopened; nor the plea of equities,
could be considered. The Court should not issue any order or direction, supplemental to what
had been already expressed, while exercising jurisdiction in the domain of the contempt of
law.

In Delhi Judicial Service Association v. State of Gujarat41, a three judge Bench of the
Supreme Court punished five police officers for harassing and handcuffing the Chief Judicial
Magistrate of the city of Nadiad in the State of Gujarat, which act amounted to the contempt
of the Court of the Chief Judicial Magistrate. The Court said that the expression “including”
in Article 129 had extended and widened the scope of the power. It plainly indicated that the
Supreme Court, being the Court of Record, had power to punish for contempt of court and
also something else which fall within the inherent jurisdiction of a Court of Record.

In Leila David v. State of Maharashtra42, it was held that the Supreme Court as a guardian
of right to personal liberty, cannot do anything by which that right is taken away or abridged,
especially when the Supreme Court is acting suo motu as in proceedings for its own
contempt.

In overruling Re : Vinay Chandra Mishra43, the Supreme Court held that punishment for
established contempt of court committed by an advocate could not include punishment to
debar him from practice by suspending his license, which power the under the Advocates
Act, 1961, was conferred on the concerned State Bar Council and the Bar Council of India.

It has, however, been held that a fair and reasonable criticism of a judgement, which is a
public document or which is a public act of a Judge, concerned with administration of Justice,
would not constitute contempt of Court.

41
AIR 1991 SC 2176.
42
AIR 2010 SC 862.
43
AIR 1995 SC 2348.
17
 ARTICLE 32

WRIT JURISDICTION
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 clause ( 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.

EXPLANATION

Article 32 confers writ jurisdiction on the Supreme Court for the enforcement Fundamental
Rights.44In the exercise of this jurisdiction, the Court may issue directions, orders or writs,
including writs in nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari. Article 32 confers original jurisdiction on the Supreme Court.

In distinction to the Supreme Court’s jurisdiction under Article 32, the High Court under
Article 226, are vested with much wider writ jurisdiction. Since, it is not generally assumed
that a judicial decision pronounced by a court may violate the Fundamental Right of a party,
judicial orders passed by the court in or in relation to proceedings pending before it or not
amenable to be corrected by issuing a writ under Article 3245.

44
See also supra 470-95.
45
Poonam v. Sumit Tanwar, AIR 2010 SC 1384.
18
Article 139 empowers Parliament, by law, to enlarge writ jurisdiction of the Supreme Court
and confers on the Court, power to issue the directions, order of writs in the nature of above
mentioned writ, for any purpose other than the enforcement of the Fundamental Rights.

In Assam Sanmilita Mahasangha v. Union of India46, it was held that Article 32 is

described as the “ heart and soul” of the Constitution of India which guarantees the right to
move the Supreme Court for the enforcement of all or any of the fundamental rights
conferred by Part III of the Constitution. This article itself is a fundamental right.

ARTICLE 131

ORIGINAL JURISDICTION
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,
engagements, and 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.

EXPLANATION

In State of Bihar v. Union of India47, the Supreme Court of India explained that the most
important feature of Article 131 was that it made no mention of any party other than the
Government of India or any one or more of the States who could be arrayed as a disputant

46
AIR 2015 SC 783.
47
AIR 1970 SC 1446.
19
and that there was no scope for suggesting that a private citizen, a firm or a corporation could
be arrayed as a party on one side and one or more states including G.O.I. or the other nor was
there anything in the Article which suggested claim being made by a private party jointly or
in the alternative with a State or the Government of India.

It maybe stated that Article 131 will not be applicable where citizens or private bodies are
parties either jointly or in alternative with the State or the Government of India.

In State of Rajasthan v. Union of India48, the question before the Supreme Court was
whether the term “State” in Article 131(a) also included within its purview “State
Government”. The dispute arose out of a directive issued by the Government of India
requiring the Chief Ministers of the congress ruled States to advice their Governors to
dissolve their Legislatures Assemblies, in the wake of the defeat of Congress candidates in
the 1977 Lok Sabha elections. The Supreme Court held that the dispute was well within the
Article 131. The Court held that Article 131 should not be given restrictive meaning and that
a dispute between the Central and State Governments, involving a legal right would be
included under Article 131.

Ordinary disputes of commercial nature between the Government of India and the States
were not maintainable under Article 131.

In Union of India v. State of Rajasthan49, the Supreme Court held that a State’s suit against
the Union of India for the recovery of damages under Section 80 of the Railway Act, 1890,
being a dispute of commercial nature, was not a dispute falling under Article 131 (a).

It has recently been ruled that a suit filed in original jurisdiction of the Apex Court is not
governed by the procedure prescribed in Civil Procedure Code, 1908, save and except the
procedure which has been expressly made applicable by the Supreme Court rules.

Parliament may, by law, exclude the jurisdiction of the Supreme Court in disputes between
States with respect to the use, distribution or control of waters of inter-State rivers or river
valleys50. Article 280 excludes the jurisdiction of the Supreme Court with respect to matters
referred to the Finance Commission. Article 290 says of adjustment of certain expenses

48
AIR 2010 MP 40.
49
AIR 1984 SC 1675.
50
Article 262 (2).
20
between the Union and the States. The Supreme Court does not have jurisdiction, under
Article 131, in such matters.

ARTICLE 132

APPELLATE JURISDICTION IN CONSTITUTIONAL

MATTERS
(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
the interpretation of this Constitution.

(2) Omitted

(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 that
declaring an issue which, if decided in favour of the appellant, would be sufficient for the
final disposal of the case.

EXPLANATION

It is only the judgements, decrees or final orders of the High Courts that are appealed against
under Article 132.

The expression final order means an order that puts an end to the suit or proceeding. The
order must not be interlocutory and must not leave the original proceeding alive.

The expression other proceedings includes all the proceedings other than civil and criminal
proceedings.

21
The words a substantial question of law denotes the question regarding which there is
difference in opinion. The question would be a substantial question when there is difference
in opinion of among the High Court’s on that question and there is no direct decision of the
Supreme Court on that question. A question which is already settled by the Supreme Court in
earlier case is not the substantial question51.

To be a substantial question of law, the Supreme Court in Santosh Hazari v. Purshottam

Tiwari52, explained:

It must be debatable, not previously settled by law of the land or a binding precedent
president, and must have a material bearing on the decision of the case, if answered either
way, in so far as the rights of the parties before it are concerned.

To be a question of law, the Court said, there must be first a foundation for it laid in the
pleading and the question should emerge from the sustainable findings of fact arrived at by
the Court of facts and it must be necessary to decide that question of law for a just and proper
decision between the parties. So said, the Court ruled:

A point of law which admits of no two opinions may be a preposition of law but cannot be a
substantial question of law.

Further, that, the substantial question of law, must relate to the interpretation of the
Constitution. It means that the question must involve the interpretation of some or other
provision of the Constitution.

ARTICLE 133

APPELLATE JURISDICTION IN 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 134A

(a)that the case involves a substantial question of law of general importance; and

51
State of J&K v. Ganga, AIR 1960 SC 356.
52
AIR 2001 SC 965.
22
(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.

EXPLANATION

The expressions “final order”, “a substantial question of law” and civil proceeding” carry the
same meaning as under Article 132. Article 133 requires that the High Court while giving a
certificate of fitness for appeal to the Supreme Court under Article 134-A, must not only say
that the case must involve the substantial question of law of general importance, but should
also express that in the opinion of the High Court, the said question needs to be decided by
the High Court.

Ordinarily, the Supreme Court does not allow fresh pleas to be raised in appeal under Article
13353.

In State Bank of India v. S.N. Goel54, the respondent in the suit against removal from
service challenged the enquiry as being opposed to principles of natural justice and that the
findings recorded by the Enquiry Officer as being erroneous. In appeal before the High Court,
by the appellant, the respondent gave up those contentions and restricted the challenge to the
quantum of punishment. In appeal before the Apex Court, he was held not entitled to revive
those contentions.

The Constitution 30th Amendment has removed the condition of monetary value and now
appeal lies to the Supreme Court only if the High Court certifies the case involves a

53
Maharashtra S.R.T. Corp. V. S.T.A., AIR 1972 SC 2110.
54
AIR 2008 SC 2594.
23
substantial question of law of general importance and it needs to be decided by the Supreme
Court.

ARTICLE 134

APPALLATE JURISDICTION IN 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 (c) 1
[certifies under article 134A] 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.

EXPLANATION

Appeal from the decision of the High Court in criminal proceedings lies before the Supreme
Court in the following two ways:-

(a) Without a certificate of the High Court

(b) With a certificate of the High Court.

24
 ARTICLE 134 (1) (a) & (b)

APPEAL WITHOUT CERTIFICATE

In the above two cases, no certificate needs to be obtained from the High Court under
Article 134-A and the accused person may go in appeal in the Supreme Court, in his own
right. The term acquittal in Article 134 (1) (a) does not mean that the trial must have
ended in a complete acquittal but would also include the case where the accused has been
acquitted of the charge of murder and has been convicted of a lesser offence.

In Tarachand Danu Sutar v. State of Maharashtra55, the accused who was charged
under Section 301 of IPC for murder was convicted by the Session’s Court under Section
304 of IPC. The High Court reversed the order and convicted the accused for murder
under Section 302, IPC, and sentenced him to death. The Supreme Court held that the
accused was entitled to come to appeal before it without a certificate of fitness under
Article 134-A.

Clause (2) of Article 134 empowers the Parliament, by law, to enlarge the criminal appellate
jurisdiction of the Supreme Court. In exercise of this power Parliament enacted the Supreme
Court Act, 1970. Section 2 of this Act provides that an appeal shall lie to the Supreme Court
from any judgement, final order or sentence in criminal proceedings of the High Court.

ARTICLE 134 (1) (c)

APPEAL WITH CERTIFICATE

It is a settled practice of the Apex Court that if on the face of it the Court is satisfied that the
High Court has not properly exercised the discretion under Article 134 (1) (c), the matter may
either be remitted or the Apex Court may exercise that discretion itself or treat the appeal as
one under Article 13656.

55
AIR 1962 SC 130.
56
State of Gujarat v. S.A. Shaikh, AIR 2003 SC 3224.
25
It has been held that the Supreme Court is not a regular Court of Appeal to which every
judgement of the High Court in a criminal case may be brought up for scrutinising its
correctness.

The Apex Court in State of U.P. V. Banne alias Baijinath57, illustrated the following
circumstances whereunder the Court would be justified in interfering with the judgement
of the High Court:

(i) The High Court’s decision is based on totally erroneous view of law by ignoring
the settled legal position;
(ii) The High Court’s conclusions are contrary to evidence and documents on record;
(iii) The entire approach of the High Court in dealing with the evidence was patently
illegal leading to grave miscarriage of justice;
(iv) The High Court’s judgement is manifestly unjust and unreasonable based on
erroneous law and facts on the record of the case;
(v) This Court must always give proper weight and consideration to the findings of
the High Court;
(vi) This Court would be extremely reluctant in interfering with a case when both the
Sessions Court and the High Court have recorded an order of acquittal.

The Apex Court ruled that they would be justified in interfering with the judgement of
reason to discard the High Court decision58.

ARTICLE 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

57
AIR 2009 SC1873..
58
State of U.P. v. Ram Sajivan, AIR 2010 SC 1738.
26
 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 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.]

EXPLANATION

Article 134-A makes it obligatory on the High Court to determine the question of granting
certificate immediately on the passing or making of the judgement, decree, final order, or
sentence made by the party aggrieved or if it deems fit to do so, on its own motion.

The Supreme Court has repeatedly laid down that as the First Appellate Court, the High
Court is entitled and obliged to scan through and if need be, reappreciate the entire
evidence. The High Court while determining the leave to appeal to the Supreme Court
should be granted, it is held, must not act mechanically but must apply its mind and must
give reasons for coming to its conclusion.

ARTICLE 136

APPEAL BY SPECIAL LEAVE

(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, and sentence or
order passed or made by any court or tribunal constituted by or under any law relating to
the Armed Forces.

EXPLANATION

Article 136(1) confers discretion on the Supreme Court to grant, special leave to appeal
before itself, from any judgement, determination, sentence, order passed or made by any

27
 court or tribunal in any cause or matter. Article 136 confers extra-ordinary jurisdiction on
the Apex Court.

It confers a wide discretionary power on the Supreme Court. Article 136 in the nature of
special or residuary power, exercisable outside the purview of ordinary law, where
requirements of justice demand interference by the Supreme Court. It is to be exercised
sparingly59. The jurisdiction under this article cannot be limited or taken away by any
legislation subordinate to the Constitution. It is an extraordinary jurisdiction vested by the
Constitution in the Court with implicit faith and trust and extraordinary care and caution
has to be observed in the exercise of this jurisdiction. It is held that the Supreme Court is
not expected to act as a “regular Court of appeal” settling disputes by converting it into a
“Court of Error”. While exercising power under Article 136, the Court acts not only as a
Court of Law but also as a Court of Equity and hence, the power exercised by the Court
must subserve ultimately the cause of justice.

In P.S.R. Sadhanantham v. Arunachalam60, a Constitution Bench of the Supreme

Court upholding the right of a private person to file petition under Article 136, observed:

It is a residuary power and is extraordinary in its amplitude. But, the Constitution makers
intended in the very term of Article 136 that it shall be exercised by the highest judges of
the land with scrupulous adherence to judicial principles well established by precedents in
our jurisprudence.

Where a prayer for injunction was concurrently refused by two Courts, the Supreme
Court will be very slow and cautious before it can take different view. The Supreme
Court can do so only if it finds that judgement of lower Court is perverse.

The Supreme Court would grant the special leave if a tribunal fails to exercise jurisdiction
or acts in excess of jurisdiction, or acts against the principles of natural justice, or acts
illegally.

In Abdul Nasar Adambrail v. State of Maharashtra61, the Apex Court has, however,
allowed raising a new plea n a petition for habeas corpus and ruled that a habeas corpus

59
Mahendra Saree Emporium v. G.V.S. Murthy, 2005 (1) SCC 481.
60
AIR 1980 SC 856.
61
AIR 2013 SC 1376.
28
 petition could not be dismissed for imperfect pleadings. In this case, the appellant was
detained under Section 3 (1) of the COFEPOSA Act, 1974 for smuggling gold chains. He
made representation to the Jail authorities, who passed it on the State Government. The
said representation was rejected by the State Government. As the point there was no
independent consideration of his representation by the detaining authority was raised by
the detenue for the first time before the Apex Court. The petition being habeas corpus
petition, the Apex Court allowed the counsel to convass the point.

In Karam Kapahi v. M/s. Lal Chand Public Charitable Trust62, it was observed by the
Apex Court that the jurisdiction of this Court under Article 136 is basically one of
conscience. The jurisdiction is plenary and residuary in nature. It is unfettered and not
confined within definite bounds. Discretion to be exercised here is subject to only one
limitation and that is the wisdom and sense of justice of the judges.

The exception to Article 136 is that no special leave to appeal before the Supreme Court
can be granted against the determinations of the Military Tribunals.

ARTICLE 135

FEDERAL COURT’S JURISDICTION

Until Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction
and powers with respect to any matter to which the provisions of Article 133 or Article 134
do not apply if jurisdiction and powers in relation to that matter were exercisable by the
Federal Court immediately before the commencement of this Constitution under any existing
law.

EXPLANATION

The Federal Court was set up in British India under the Government of India Act, 1935 63. The
Federal Court continued to be the final court of Appeal in India and appeals against it
decisions could lie to Judicial Committee of the Privy Council in England. The Court has
been abolished by the Constitution and is replaced by the Supreme Court.

62
AIR 2010 SC 2077.
63
The Court was set up at Delhi on 1st October, 1937 and continued to function till 26th January, 1950.
29
The Federal Court was vested with jurisdiction and powers under the Government of India
Act, 1935. Such jurisdiction and power shall be enjoyed by the Supreme Court under Article
135 provided Articles 133 and 134 do not apply to the case. The jurisdiction conferred by
Article 135, however, can be altered or abolished by Parliament by law.

ARTICLE 137

REVIEW JURISDICTION
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.

EXPLANATION

The power of review is not an inherent power. It must be conferred by law either specifically
or by necessary implication64. It is, thus, held that the power to review is a creature of Statute
and no Court or quasi-judicial body or administrative body can review its judgement unless it
is legally empowered to do so.

Article 137 confers on the Supreme Court power to review its judgements. However, this
power is subjected to any law made by the Parliament. Also, this power is exercisable in
accordance with, and subject to, the rules of the Court, made under Article 145.As per the
rules , the review petition has to be moved before the same Bench which had passed the
judgement sought to be reviewed . The grounds mentioned in Order 47, Rule 1 of the Civil
Procedure code, 1908. These grounds are:

 discovery of new and important evidence or matter

 any mistake or error apparent on the face of the record
 Any other sufficient reason.

Relying on the fundamental principles of jurisprudence that “justice is above all”, the Apex
Court in S. Nagraj v. State of Karnataka65, stated:

64
It is because of the opening subjective clause in Article 137.
65
1993 Supp. (4) SCC 184.
30
Review literally and even judicially means re-examination or re-consideration. Basic
philosophy inherent in it is the universal acceptance of human fallibility.

A three Judge Bench of the Supreme Court in Commissioner of Sales Tax v. Pine
Chemicals Ltd.66 held that if a reasoning in the judgement is at variance with the clear and
simple language in a Statute, the judgement is said to suffer from a manifest error of law, an
error apparent on the face of the record and is liable to be rectified.

It is held that the grounds in one case cannot be the reasons for review for other judgements 67.

ARTICLE 143

ADVISORY JURISDICTION
(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 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.

EXPLANATION

It is for the President to decide what question should be referred to the Supreme Court. Thus,
if the President does not entertain any serious doubt on the other provision, it is not for any
party to say that doubts arise also out of them. The President may formulate, for the advisory
opinion of the Court, questions relating to the validity of the provisions of existing laws or in

66
(1995) 1 SCC 58
67
State of Gujarat v. R.A. Mehta, AIR 2013 SC 1963.
31
regard to the validity of provisions proposed to be included in the Bills which would come
before the Legislature or in respect of any other opinion.

Article 143 (1) provides that the President may refer to the Supreme Court a question of law
or fact. It is not necessary that the question on which the opinion is sought must have arisen
actually. However, the reference should not be vague and general, but must be made on
specific questions.

In Re Kerala Education Bill68, the Supreme Court laid down that under clause (1) of Article
143, the Court had a discretion in the matter and in proper case and for good reason, if the
Court considers it, not proper or possible, to answer the question, it would be entitled to
return the reference by pointing out the impediments.

Clause (2) of Article 143 refers to matters mentioned in proviso to Article 131 in respect of
which the original jurisdiction of the Supreme Court is excluded. For example, disputes
arising out of any treaty, agreement or other similar instrument which having been entered
into or executed before the commencement of the Constitution, continued in operation after
such commencement.

This Clause uses the term “shall” which denotes that it is constitutional obligation of the
Supreme Court, to make a report on the Reference containing its advisory opinion.

Earlier it was held that the advisory opinion of the Supreme Court though, entitled to great
respect was not binding on courts, because it was not a judgement and not a law within the
meaning of Article 141.

However, later in Re the Special Courts Bill, 197869 , the Court made it clear that the views
expressed by the Court in the exercise of its advisory jurisdiction, are binding on all courts.

68
AIR 1958 SC 956.
69
SC 478
32
The opinion reported by the Supreme Court is not a judicial pronouncement. It is not binding
on the President. The President may not act according to the opinion of the Supreme Court70.

ARTICLE 141

DOCTRINE OF STARE DECISIS

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

EXPLANATION

The Doctrine of Stare Decisis envisages that the lower courts are bound by the decision of the
higher courts. Article 141 gives a constitutional status to the theory of precedents according
to which the judicial decisions are considered to have a binding force for the future. The
judicial pronouncements of the Supreme Court are said to constitute the law of the land.71

The expression “all the Courts” means all the courts except the Supreme Court.

In Bengal Immunity Co. V. State of Bihar72, the Supreme Court laid down, that, there is
nothing in the Indian Constitution which prevents the Supreme Court from departing from its
previous decisions, if it is convinced of its error and its baneful effect on the general interest
of the public.

Article 141 uses the expression “law declared by the Supreme Court” which is wider than
‘law found”. It means that the Supreme Court does not merely interpret the law, it may also
make law or create law. The role of Judiciary merely to interpret and declare the law has been
said to be the concept of by-gone age. It is now fairly settled that the Courts can so mould and
lay down the law, formulating principles and guidelines, as to adapt and adjust to the
changing conditions of the society, the ultimate object being to dispense justice.

In Nand Kishore v. State of Punjab73, it was held by the Apex Court that their Lordships
decisions declare the existing law but do not enact any fresh law, is not in keeping with the

70
In the matters of Reference under section 213 of Government of India Act, 1935.
71
P. Purshottam Reddy v. M/s. Pratap Steels ltd., AIR 2002 SC 771.
72
AIR 1955 SC 661.
73
(1995) 6 SCC 614.
33
plenary function of the Supreme Court. The Court is not merely the interpreter of the law as
existing, but much beyond that. The Court, as a wing of the State, is by itself a source of law.
The law is what the Court says it is. It has, however, been held that it is only the Legislature
and not the Courts, which can create a law74.

In Sahara India Real State Corpn. Ltd. v. S.E.B.I.75, a Constitution Bench of the Apex
Court held that law made while interpreting the statutes or the Constitution. Such judicial
law-making is part of the judicial process. Further, under Article 141 law making through
interpretation and expansion of the meanings of open textured expressions is a legitimate
judicial function.

The concept of Stare Decisis is the sine qua non of judicial discipline.

74
Pravasi Bhalai Sangathan v. Union of India, AIR 2014 SC 1591.
75
AIR 2012 SC 3829.
34
 CONCLUSION TO THE UNION JUDICIARY

The Indian Judiciary is a polycephalic creature whose largest heads can snarl and sometimes
bite but which for much of its history has had an emaciated body. By centralising power in
the upper judiciary, and particularly, the Supreme Court, the judiciary has helped protect and
consolidate its independence, as well as corrected some of the worst errors of the rest of the
Judiciary.

The interpretation of the Constitution, and law in general, frequently becomes polyvocal and
in flux.

Today, India is investing more resources in its courts, including the subordinate judiciary.
Nothing should be taken away from the critical role the High Courts and Supreme Court have
played in checking some of the worst omissions of the State, but if the Indian judiciary is to
truly be democratised it will be in the subordinate courts.

The Supreme Court today is an institution struggling to manage the width of its own
jurisdiction. Responses to the rapid increase in the Supreme Court’s burden have focused on
institutional restricting. The Law Commission of India, for instance, has recommended,
variously, the creation of a constitutional bench to hear important matters or that the Supreme
Court establish four divisions in different parts of the country to hear the appellate matters
and increasing the number of judges further.

The Supreme Court’s jurisdiction may well be wider than any superior court in any part of
the world. The Supreme Court is a creature of the Constitution; it draws its power from
constitutional sources and not as an abstract inherent jurisdiction.

Judges do not make judicial decisions in isolation. Instead, they sit within courts and
professional hierarchies that shape and constrain their role in the adjudicatory process.
Maping the structure of this larger architecture helps us understand how both judges and
litigants navigate this system and the context in which the law and the Constitution are
ultimately interpreted.

35
 INDEPENDENCE OF JUDICIARY
The meaning of the independence of the judiciary is still not clear after years of its existence.
Our constitution by the way of the provisions just talks of the independence of the judiciary
but it is no where defined what actually is the independence of the judiciary.

The primary talk on the independence of the judiciary is based on the doctrine of separation
of powers which holds its existence from several years. The doctrine of separation of powers
talks of the independence of the judiciary as an institution from the executive and the
legislature.

Shetreet in his work tries to explain the words “Independence” and “Judiciary” separately,
and says that the judiciary is “the organ of the government not forming a part of the executive
or the legislative, which is not subject to personal, substantive and collective control, and
which performs the primary function of adjudication”.

The components of the independence of the judiciary as talked of here refers to some of the
requisite terms and conditions which are so necessary that if they are absent, the
independence of the judiciary also cannot exist.

It is very difficult to lay down certain set conditions as law is dynamic in itself and of the
changing economic, political and social scenario.

CONSTITUTIONAL PROVISIONS –

THE INDEPENDENCE OF THE JUDICIARY

Many provisions are provided in our constitution to ensure the independence of the judiciary.
The constitutional provisions are discussed below:

1. Security of Tenure: The judges of the Supreme Court and High Courts have been
given the security of the tenure. Once appointed, they continue to remain in office till
they reach the age of retirement which is 65 years in the case of judges of Supreme
Court (Art. 124(2)) and 62 years in the case of judges of the High Courts (Art.
217(1)). They cannot be removed from the office except by an order of the President
and that too on the ground of proven misbehaviour and incapacity. A resolution has
also to be accepted to that effect by a majority of total membership of each House of
Parliament and also by a majority of no less than two third of the members of the

36
 house present and voting. Procedure is so complicated that there has been no case of
the removal of a Judge of Supreme Court or High Court under this provision.

2. Salaries and Allowances: The salaries and allowances of the judges is also a factor
which makes the judges independent as their salaries and allowances are fixed and are
not subject to a vote of the legislature. They are charged on the Consolidated Fund of
India in case of Supreme Court judges and the Consolidated Fund of state in the case
of High Court judges. Their emoluments cannot be altered to their disadvantage (Art.
125(2)) except in the event of grave financial emergency.

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

4. No discussion on conduct of Judge in State Legislature / Parliament: Art. 211

provide that there shall be no discussion in the legislature of the state with respect to
the conduct of any judge of Supreme Court or of a High Court in the discharge of his
duties. A similar provision is made in Art. 121 which lay down that no discussion
shall take place in Parliament with respect to the conduct of the judge of Supreme
Court or High Court in the discharge of his duties except upon a motion for presenting
an address to the President praying for the removal of the judge.

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

37
 6. Separation of the Judiciary from the Executive: Art. 50 contains one of the
Directive Principles of State Policy and lays down that the state shall take steps to
separate the judiciary from the executive in the public services of the state. The object
behind the Directive Principle is to secure the independence of the judiciary from the
executive. Art. 50 say that there shall be a separate judicial service free from
executive control.

7. Appointment of judges: The judges of the Supreme Court as well as the High Courts
are appointed by the President. However, the President in this matter is required to
hold consultation with the Judges of the Supreme Court and the High Courts. The
Constitution in this matter does not give a free hand to the Executive.

8. Appointment of staff: The Constitution empowers the Chief Justice of Supreme

Court and the Chief Justice of High Court to recruit their staff and regulate conditions.

9. Prohibition on practice after retirement: The Constitution debars the Judges of the
Supreme Court from pleading or appearing before any court or tribunal or judicial
authority in India after retirement. A High Court Judge, however, can after retirement,
practise in the Supreme Court or in High Court in which he had not been a Judge.

10. Expenditure of the Court: The administrative expenses of the Supreme Court as
well as the High Courts have been declared to be charged upon the Consolidated Fund
of India and States and not subject to the vote of Legislature.

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CONCLUSION TO INDEPENDENCE OF JUDICIARY

The relationship of judicial independence and judicial accountability depends on the

historical experience of how institutions operate. In the Indian context, it was undermining of
judicial independence during the Indira Gandhi era which led to the judiciary increasing its
role in the appointments process, and it was through series of cases on judicial appointments
that judicial independence acquired a crucial place in the Constitutions Basic Structure. The
Supreme Court’s most recent decision in Supreme Court Advocates on Record Association,
which struck down the Ninety- ninth amendment to the Constitution, confirms this place.

Judicial independence is an inviolable aspect of Indian constitutionalism, concerns about

accountability remain, and doubtless the judiciary has a number of internal reforms to
undertake. What remains clear is that whatever changes may occur in future years, whether
they involve new procedures for appointing new judges or new means for disciplining their
behaviour, they are likely to be the subject of major constitutional debate and adjudication.

In the final analysis, the best guarantee of judicial independence is the character of the person
holding the office. Neither constitutional guarantees nor statutory provisions can ever be an
effective substitute. Judges ultimately are products of society and we shall always get the
judges that we deserve. Judicial independence ultimately would be directly proportional to
the value attached by the citizens of the country and the judges to the single virtue.

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 BIBLIOGRAPHY

1. Kumar, Narendra “Constitutional Law of India”, edition

2016, Allahabad Law Agency, Faridabad, Haryana.

2. Choudhary, Sudhir “Oxford Handbook of Indian

Constitution”, edition 2016, Oxford University Press.

3. Bakshi, P.M., “The Constitution of India”, 12th edition

2015, Universal Law Publishing, New Delhi.

4. “The Constitution of India, Bare Act with short notes”,

edition 2017, Universal Law Publishing, New Delhi.

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