Union Judiciary

“Union Judiciary”
Supreme Court
Appointment of Judges
The judges of the Supreme Court are appointed by the president.
The chief justice is appointed by the president after consultation
with such judges of the Supreme Court and high courts as he
deems necessary. The other judges are appointed by president
after consultation with the chief justice and such other judges of
the Supreme Court and the high courts as he deems necessary.
The consultation with the chief justice is obligatory in the case of
appointment of a judge other than Chief Justice.
Controversy over Consultation - The Supreme Court has given
different interpretation of the word 'consultation’ in the above
provision.
In the “First Judges case” (S.P. Gupta v. Union of India, AIR
1982 SC 149), the Court held that consultation does not mean
concurrence and it only implies exchange of views. But, in the
“Second Judges case” (S.C. Advocates on Record Association
v. Union of India, (1993) 4 SCC 441), the Court reversed its
earlier ruling and changed the meaning of the word
consultation to concurrence. Hence, it ruled that the advice
tendered by the Chief Justice of India is binding on the
President in the matters of appointment of the judges of the
Supreme Court. But, the Chief Justice would tender his advice
on the matter after consulting two of his senior most
colleagues.
Similarly, in the “Third Judges case” (re Presidential
reference, AIR 1999 SC 1), the Court opined that the
consultation process to be adopted by the Chief justice of
India requires 'consultation of plurality judges‘.
The sole opinion of the chief justice of India
does not constitute the consultation process.
He should consult a collegium of four senior
most judges of the Supreme Court and even if
two judges give an adverse opinion, he should
not send the recommendation to the
government. The court held that the
recommendation made by the chief justice of
India without complying with the norms and
requirements of the consultation process are
not binding on the government.
The 99th Constitutional Amendment Act of 2014 and
the National Judicial Appointments Commission Act
of 2014 have replaced the collegium system of
appointing judges to the Supreme Court and High
Courts with a new body called the National Judicial
Appointments Commission (NJAC).
In “Fourth Judges Case” (Supreme Court Advocates-
on-Record Association v. Union of India, (2015) AIR
SCW 5457), Supreme Court declared both the 99th
Constitutional Amendment as well as the NJAC Act,
2014 as unconstitutional and void. Consequently, the
collegium system became operative again.
 Qualifications of Judges
• 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.
 Oath or affirmation
• 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.
 Tenure of Judges
• The Constitution has not fixed the tenure of a judge
of the Supreme Court. However, it makes the
following three provisions in this regard:
1. He holds office until he attains the age of 65 years.
Any question regarding his age is to be determined
by such authority and in such manner as provided
by Parliament.
2. He can resign his office by writing to the president.
3. He can be removed from his office by the President
on the recommendation of the Parliament.
 Salaries and allowances
• Article 125. Salaries, etc., of Judges—(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.
 Acting Chief Justice
• 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 of 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.
 Ad hoc judges
• Article 127 talks about “appointment of ad hoc Judges”.
• When there is a lack of quorum of the permanent judges to hold
or continue any session of the Supreme Court, the Chief Justice
of India can appoint a judge of a High Court as an ad hoc judge of
the Supreme Court for a temporary period. He can do so only
after consultation with the chief justice of the High Court
concerned and with the previous consent of the president. The
judge so appointed should be qualified for appointment as a
judge of the Supreme Court. It is the duty of the judge so
appointed to attend the sittings of the Supreme Court, in priority
to other duties of his office. While so attending, he enjoys all the
jurisdiction, powers and privileges (and discharges the duties) of
a judge of the Supreme Court.
 Retired Judges
• Article 128 talks about “attendance of retired Judges at
sittings of the Supreme Court”.
• At any time, the chief justice of India can request a retired
judge of the Supreme Court or a retired judge of a high court
(who is duly qualified for appointment as a judge of the
Supreme Court) to act as a judge of the Supreme Court for a
temporary period. He can do so only with the previous consent
of the president and also of the person to be so appointed.
Such a judge is entitled to such allowances as the president
may determine. He will also enjoy all the jurisdiction, powers
and privileges of a judge of Supreme Court. But, he will not
otherwise be deemed to be a judge of the Supreme Court.
• Article 129. Supreme Court to be 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.
• 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.
 Original Jurisdiction of Supreme Court
• Article 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.]
 Other than the grounds provided under Article 131, following
are the grounds on which an individual can approach Supreme
Court directly –
1. Enforcement of Fundamental Rights - Regarding the
enforcement of FRs, the SC has Original Jurisdiction. According
to Section 32, a person whose FR is violated is entitled to
approach directly to the SC for the enforcement of FR.
2. Disputes relating to election of President or Vice-President
(Exclusive jurisdiction)- Art 71 provides that the disputes or
matters related to the Election of President or Vice President
shall be decided by the SC & the decision of the SC shall be
final. Art 71 confers Exclusive original Jurisdiction upon the SC.
The Exclusive Jurisdiction means that No any other Court
except the SC shall be entitled to entertain this matter:"
In any of the above dispute, Supreme Court has exclusive
jurisdiction to decide the matter, which means no court other
than the Supreme Court has power to decide such dispute.
In ‘original jurisdiction’ the term original means the power to
hear such disputes in first instance, not by way of appeal.
With regard to the exclusive original jurisdiction of the
Supreme Court, two points should be noted.
One, the dispute must involve a question (whether of law or
fact) on which the existence or extent of a legal right depends.
Thus, the questions of political nature are excluded from it.
Two, any suit brought before the Supreme Court by a private
citizen against the Centre or a state cannot be entertained
under this.
 In the case of State of Bihar v. Union of India & another the Supreme
Court has held that Supreme Court can’t entertain a suit under Article
131 if private citizen, company, corporation or firm is a party thereto
either alone or along with a state or with the Government of India.
Further, this jurisdiction of the Supreme Court does not extend to the
following:
(a) A dispute arising out of any pre-Constitution treaty, agreement,
covenant, engagement, sanad or other similar instrument.“
(b) A dispute arising out of any treaty, agreement, etc., which specifically
provides that the said jurisdiction does not extent to such a dispute."
(c) Inter-state water disputes.
(d) Matters referred to the Finance Commission.
(e) Adjustment of certain expenses and pensions between the Centre
and the states.
(f) Ordinary dispute of Commercial nature between the Centre and the
states.
(g) Recovery of damages by a state against the Centre.
 Appellate Jurisdiction
Appeal in Constitutional matters
• Article 132. Appellate jurisdiction of Supreme Court in appeals
from High Courts in certain cases—
(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.
(2) * * * *
(3) Where such a certificate is given, 2*** any party in the case
may appeal to the Supreme Court on the ground that any
such question as aforesaid has been wrongly decided.
• Under Art 132 the nature of proceeding is immaterial.
Where such a certificate is given by the HC any party in the
case may appeal to the SC on the ground that any such
question as aforesaid has bean wrongly decided. In State of
J&K v. K V Ganga, it has been held by the SC that the HC will
grant the certificate only where the case has involved the
question of law as to the interpretation of the constitution
and the question must be the substantial question of law. SC
said that if there is difference of opinion on any question of
law among High Courts and there is no direct decision of the
SC on that point, it would be a substantial question of law.
• Art 134A provides that the HC may give such certificate
either on its own motion or on oral application of the
aggrieved party.
• There are three conditions for the grant of the certificate by the High
Count under clause (1)
Firstly, the order appealed against should be a "judgment, decree or
final order made by a High Court in a civil, criminal or other proceeding.
Secondly, the case should involve a question of law as to the
interpretation of the Constitution. The word "involve' is important. It
implies a considerable degree of necessity. The mere circumstance that
a question of law is raised in a case would not justify the inference that
the proposed appeal involves a substantial question of law unless it is
necessary to decide the question of law for a proper decision of the
case.
Thirdly, the question involved must be a substantial question of law. The
word 'substantial’ here means a question regarding which there is a
difference of opinion. A question will not be a substantial question when
the law on the subject has been finally and effectively decided by the
Supreme Court. Thus, no substantial question of law is involved where
the parties agree on the interpretation of an Article but disagree on its
application to the facts, or where no new point has been raised with
respect to the interpretation of an Article.
 Appeal in Civil matters
• Article 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 134A—]
(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.
• Appeals in civil cases.-Article 133 deals with appeals to
the Supreme Court from decisions of High Courts in civil
proceedings. For such appeal the following conditions
must be fulfilled:
(a) The decision appealed against must be a "judgment,
decree or final order" of a High Court in the territory of
India,
(b) such judgment, decree or final order should be given in
a civil proceeding, and
(c) a certificate of the High Court to the effect that (i) the
case involves a substantial question of law, and (ii) in
the opinion of the High Court the said question needs to
be decided by the Supreme Court.
 Appeal in Criminal matters
• Article 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
(c) [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.
 Certificate for appeal to the Supreme Court
• Article 134A. 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.
 Special Leave Petition
• Article 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.
• The Supreme Court is authorised to grant in its discretion special leave to
appeal from any judgement in any matter passed by any court or tribunal
in the country (except military tribunal and court martial). This provision
contains the four aspects as under.
(i) It is a discretionary power and hence, cannot be claimed as a matter of
right.
(ii) It can be granted in any judgement whether final or interlocutory.
(iii) It may be related to any matter-constitutional, civil, criminal, income-
tax, labour, revenue, advocates, etc.
(iv) It can be granted against any court or tribunal and not necessarily
against a high court (of course, except a military court).
Thus, the scope of this provision is very wide and vests the Supreme
Court with a plenary jurisdiction to hear appeals. On the exercise of this
power, the Supreme Court itself in case of D.C. Mills v. Commissioner of
Income Tax held that 'being an exceptional and overriding power, it has
to be exercised sparingly and with caution and only in special
extraordinary situations. Beyond that it is not possible to fetter the
exercise of this power by any set formula or rule'.
In the case of Ramakanth Rai v. Madan Rai,
the SC has held that where an accused is
acquitted by the HC and no appeal against the
acquittal is filed by the State, a private party
can file appeal Under Art 136 against the
acquittal order the HC.
In the case of Achut v. State of West Bengal
and Manik Chand v. Alias the SC has held that
the special leave to appeal may be granted
even where the HC has refused to grant the
cartificate under Art 132 or 133 or 134.
 Review Jurisdiction
Power to review
• Article 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.
• Art 137 of the Constitution authorises the Supreme Court to review its own
judgment. According to this article, the SC shall have power to review any
judgment pronounced or order made by it. This power is exercised by the SC
subject to the law made by Parliament or any rule made by the SC under Art 145.
• Review petitions are also heard by the same combination of judges who
delivered the original order or judgment that is sought to be reviewed.
• The Supreme Court has laid down three grounds for seeking a review of a verdict
it has delivered:
1. The discovery of new and important matter or evidence which, after the exercise
of due diligence, was not within the knowledge of the petitioner or could not be
produced by him;
2. Mistake or error apparent on the face of the record; or
3. Any other sufficient reason that is analogous to the other two grounds.
• The Court has the power to review its rulings to
correct a “patent error” and not “minor mistakes of
inconsequential import”. A review is by no means an
appeal in disguise.
• That means the Court is allowed not to take fresh
stock of the case but to correct grave errors that
have resulted in the miscarriage of justice.
• A Review Petition has to be filed within 30 days of
the date of judgment or order. In certain
circumstances, the court can condone the delay in
filing the review petition if the petitioner can
establish strong reasons that justify the delay.
• The objective behind this power is to correct the
fault & to avoid the injustice in the case of S. Nagraj
V. State of Karnataka, the SC said that the objective
basic philosophy inherent in it is the universal
acceptance of human fallability. Then, it is necessary
for rectification because it is fundamental principle,
that the justice is above all.
• In the case of Vinod Kumar v. Prem Lata the SC said
that the review of a judgment or the order can be
allowed if the judgment or order is based on a
decision per incurium. (Per incurium means contrary
to the law or in violation of law. It is not binding)
 Curative Petition
• The concept of the curative petition was first
evolved by the Supreme Court of India in Rupa
Ashok Hurra vs. Ashok Hurra and another case
(2002) on the question whether an aggrieved
person is entitled to any relief against the final
judgement/order of the Supreme Court even after
the dismissal of a review petition.
• It's objectives are two folds-
1. To cure gross miscarriage of justice, and
2. To prevent abuse of process.
 Advisory Jurisdiction
• Article 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 1*** the proviso
to article 131, refer a dispute of the kind mentioned in the 2[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.
• The Constitution (Article 143) authorises the president to seek the opinion of the
Supreme Court in the two categories of matters-
a. On any question of law or fact of public importance which has arisen or which is
likely to arise.
b. On any dispute arising out of any pre-constitution treaty, agreement, covenant,
engagement, sanad or other similar instruments.
In the first case, the Supreme Court may tender or may refuse to tender its
opinion to the president. But, in the second case, the Supreme Court 'must'
tender its opinion to the president. In both the cases, the opinion expressed by
the Supreme Court is only advisory and not a judicial pronouncement. Hence, it
is not binding on the president; he may follow or may not follow the opinion.
However, it facilitates the government to have an authoritative legal opinion on
a matter to be decided by it.
Some matters on which President has made references to the Supreme Court under
its advisory jurisdiction are – Berrubari Union in 1960, Presidential Elections in
1964, Jammu and Kashmir Resettlement Act in 1982, Cauvery Water Disputes
Tribunal in 1992, Rama JanmBhumi case in 1993, Punjab Termination of
Agreements Act in 2004, 2G Spectrum case verdict and the mandatory
auctioning of natural resources across all sectors in 2012 etc.
 Article 139
• Article 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.
 Article 141
• Article 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.
• The SC declares law through it's judgments. It is noticeable point
that the SC itself can't bound by it's own decision. In the case of
Bengal Immunity Co. v. State of Bihar, the S.C. has held that
there is nothing in the constitution which prevents the Supreme
Court departing from its previous decision, if it is convinced of its
errors & its beneficial effect on the general interest of public.
• Thus the SC isn't bound by judicial precedent and it may correct
the errors committed by it in its preview decision. The other
courts except the Supreme Court are bound by the decision given
by the Supreme Court.
 Article 142
• Article 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 order3 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.
 Other provisions
• Article 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.
• Article 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.
• Article 138 - Enlargement of the jurisdiction of the Supreme Court (from Bare
Act)
• Article 139A - Transfer of certain cases (from Bare Act)
• Article 145 - Rules of Court, etc. (From Bare Act)
• Article 146 - Officers and servants and the expenses of the Supreme Court
(From Bare Act)
 Independence of Judiciary
The Supreme Court has been assigned a very significant role in the
Indian democratic political system. It is the highest court of appeal, the
guarantor of the fundamental rights of the citizens and guardian of the
Constitution. Therefore, its independence becomes very essential for
the effective discharge of the duties assigned to it. It should be free
from the encroachments, pressures and interferences of the executive
(council of ministers) and the Legislature (Parliament). It should be
allowed to do justice without fear or favour.
The Constitution has made the following provisions to safeguard and
ensure the independent and impartial functioning of the Supreme
Court:
1. Mode of Appointment - The judges of the Supreme Court are
appointed by the President (which means the cabinet) in consultation
with the members of the judiciary itself. This provision curtails the
absolute discretion of the executive as well as ensures that the judicial
appointments are not based on any political or practical considerations.
2. Security of Tenure - The judges of the Supreme Court are provided with the
Security of Tenure. They can be removed from office by the President only in
the manner and on the grounds mentioned in the Constitution. This means that
they do not hold their office during the pleasure of the President, though they
are appointed by him.
3. Fixed Service Conditions - The salaries, allowances, privileges, leave and pension
of the judges of the Supreme Court are determined from time to time by the
Parliament. They cannot be changed to their disadvantage after their
appointment except during a financial emergency. Thus, the conditions of
service of the judges of the Supreme Court remain same during their term of
office.
4. Expenses Charged on Consolidated Fund -The salaries, allowances and pensions
of the judges and the staff as well as all the administrative expenses of the
Supreme Court are charged on the Consolidated Fund of India. Thus, they are
non-votable by the Parliament (though they can be discussed by it).
5. Conduct of Judges cannot be Discussed - The Constitution prohibits any
discussion in Parliament or in a State Legislature with respect to the conduct of
the judges of the Supreme Court in the discharge of their duties, except when
an impeachment motion is under consideration of the Parliament.
6. Ban on Practice after Retirement - The retired judges of the Supreme Court are
prohibited from pleading or acting in any Court or before any authority within the
territory of India. This ensures that they do not favour any one in the hope of future
favour.
7. Power to Punish for its Contempt -The Supreme Court can punish any person for its
contempt. Thus, its actions and decisions cannot be criticised and opposed by
anybody. This power is vested in the Supreme Court to maintain its authority, dignity
and honour.
8. Freedom to Appoint its Staff - The Chief Justice of India can appoint officers and
servants of the Supreme Court without any interference from the executive. He can
also prescribe their conditions of service.
9. Its Jurisdiction cannot be Curtailed - The Parliament is not authorised to curtail the
jurisdiction and powers of the Supreme Court. The Constitution has guaranteed to
the Supreme Court, jurisdiction of various kinds. However, the Parliament can extend
the same.
10. Separation from Executive - The Constitution directs the State to take steps to
separate the Judiciary from the Executive in the public services. This means that the
executive authorities should not possess the judicial powers. Consequently, upon its
implementation, the role of executive authorities in judicial administration came to
an end.