ALL INDIA LEGAL FORUM

DAY:6TH OCTOBER, 2020

DAY:60

CONSTITUTIONAL LAW

SUPREME COURT

Introduction

 The Supreme Court of India is the Supreme Judicial Body of the Government of India
and the Supreme Court of India under the Constitution. It is the highest supreme court
that has the right of judicial review.
 The Chief Justice of India is the Chief and Chief Judge of the Supreme Court and the
Court is comprised of a maximum of 34 judges and has broad powers in the form of
initial, appeal and advisory jurisdictions. It is considered to be the most powerful public
institution in India.
 As the country's supreme court, it appeals mainly against the judgement of the high
courts of the different States of the Union and other courts and tribunals.
 It defends citizens' constitutional rights and addresses conflicts between different
government agencies, as well as between the central government and state governments
and other state governments in the world.
 As an advisory court, it hears matters which may be expressly addressed to it by the President of
India according to the Constitution.
 The law proclaimed by the Supreme Court is binding on all courts throughout India, as well as
on union and state governments. Pursuant to Article 142 of the Constitution, it is the
responsibility of the President of India to enact the decrees of the Supreme Court and the court is
empowered to offer any order considered appropriate in the interests of justice.

Composition of the Supreme Court

 Article 124(1) and the 2008 Amendment Act specify that the Supreme Court of India
shall be composed of the Chief Justice of India (CJI) and 34 judges, including the CJI. Article
 124(2) specifies that, after reviewing the judges of the Supreme Court and the High Courts of the
States, each judge of the Supreme Court shall be named by the President by warrant under his
authority and sealed.
 Here the collegium system (appointment of judges to the courts) was adopted, also known as the
three cases of judges, comprising of the Chief Justice of India and four senior judges of the SC,
one Chief Justice of the High Court and two senior judges of the SC. The framework called for a
majority decision by all senior judges in line with the Chief Justice of India.
 However, owing to lack of accountability and delay in selection, a new Article 124 A was
introduced into the constitution, which replaced the National Judiciary Appointments
Commission (NJAC) with a new mechanism for nominating judges as required in the current
pre-amended constitution.

The NJAC consists of the following persons:

1. Chief Justice of India (chairperson)

2. Two senior-most Supreme Court judges

3. The Union Minister of Law and Justice

4. Two eminent persons nominated by a committee consisting of CJI, Prime minister of India
and leader of the opposition.

Functions of the Commission are as follows:

 Recommending persons for CJI, judges of the Supreme Court, Chief Justice of High court,
Judges of High court,
 Transfer of Chief justices and judges from one court to other
 Ensure persons recommended are of ability and integrity

Jurisdiction (Articles 141, 137)

Articles 137 to 141 of the Constitution of India lay down the composition and jurisdiction of the
Supreme Court of India. Art 141, states that Law declared by Supreme Court is binding on all the
 courts in India and Art 137 empowers SC to review its own judgment. The Jurisdiction of the
Supreme Court of India can broadly be categorised into three parts:

Original Jurisdiction- (Art 131)

This jurisdiction extends to cases originating in SC only and states that Indian SC has original
and exclusive jurisdiction in cases between:

 The government on one hand and one or more states on the other
 Government and one or more states on one side and other states on the other
 Two or more states

Appellate Jurisdiction- (Art 132,133,134)

The appeal lies with SC against the high court in the following 4 categories

1. Constitutional matters-if high court certifies that the case involves a substantial question of
law that needs interpretation of the constitution.

2. Civil matters- if the case involves a substantial question of law of general importance

3. The criminal matters-if high court has on appeal reversed the order of acquittal of an accused
and sentenced him to death or has withdrawn for trial before itself any case from subordinate
court

4. Special leave to appeal is granted by SC if it is satisfied that the case does not involve any
question of law. However, it cannot be passed in case of the judgment passed by a court or
tribunal of armed forces.

However, under this jurisdiction, SC can transfer to itself cases from one or more high courts if it
involves the question of law in the interest of justice.

Advisory Jurisdiction (Art 143)

Article 143 authorises the President to seek an advisory opinion from the Supreme Court in the
two categories of matters-(a) matters of public importance (b) of any question arising out of pre-
constitution, treaty, agreement, engagement, Sanad or other similar instruments.
Also Art 144 states that all authorities civil and judicial in the territory of India shall act in aid of
the Supreme Court.

Powers of the Supreme Court

1. Power to punish for contempt (civil or criminal) of court with simple imprisonment for 6
months or fine up to 2000. Civil contempt means wilful disobedience to any judgment. Criminal
contempt means doing any act which lowers the authority of the court or causing interference in
judicial proceedings

2. Judicial review - to examine the constitutionality of legislative enactments and executive

orders. The grounds of review is limited by- Parliamentary legislation or rules made by the
Supreme Court.

3. Deciding authority regarding the election of President and Vice President

4. Enquiring authority in conduct and behaviour of UPSC members

5. Withdraw cases pending before high courts and dispose of them itself

6. Appointment of ad hoc judges-Art 127 states that if at any time there is lack of quorum of
Judges of Supreme Court, the CJI may with the previous consent of the President and Chief
Justice of High Court concerned request in writing the attendance of Judge of High Court duly
qualified to be appointed as Judge of SC.

7. Appointment of retired judges of supreme court or high court - Art 128- The CJI at any
time with the previous consent of the President and the person to be so appointed can appoint
any person who had previously held the office of a Judge of SC.

8. Appointment of acting Chief Justice- Art 126- when the office of CJI is vacant or when the
Chief Justice is by reason of absence or otherwise unable to perform duties of the office, the
President in such case can appoint Judge of the court to discharge the duties of the office.
9. Revisory Jurisdiction: The Supreme Court under Art. 137 is empowered to review any
judgment or order made by it with a view to removing any mistake or error that might have crept
in the judgement or order.

10. Supreme Court as a Court of Record

The Supreme Court is a court of record as its decisions are of evidentiary value and cannot be
questioned in any court.

Removal of Supreme Court Judge

A judge of Supreme Court can be removed only from the office by the President on the basis of a
resolution passed by both the Houses of parliament with a majority of the total membership and a
majority of not less than two-thirds of the members present and voting in each house, on the
grounds of proved misbehaviour or incapacity of the judge in question.

Hence, a democratic country like India needs a judiciary because democratic values tend to lose
their prominence without proper checks and balances
CASE LAWS

Subhash Sharma v. Union of India AIR 1991 SC 631

A three Judge Bench of the Supreme Court expressed the view that consistent with the
constitutional purpose and process, as expressed in the Preamble to the Constitution, “it becomes
imperative that the role of the institution of the Chief Justice of India be recognized as of crucial
importance in the matter of appointments to the Supreme Court....”

As regards the word “consultation” in Article 124(2), the Court said: “The constitutional
phraseology would require be reading and expounding in the context of the constitutional
philosophy of separation of powers to the extent recognized and adumbrated and the cherished
values of judicial independence”.

The Bench emphasized:

“An independent non-political judiciary is crucial to the sustenance of our chosen political
system. The vitality of the democratic process, the ideals of social and economic egalitarianism,
the imperatives of a socio-economic transformation envisioned by the Constitution as well as the
Rule of law and great values of liberty and equality are all dependent on the tone of the judiciary.
The quality of the judiciary cannot remain unaffected, in turn, by the process of selection of
judges”.

S.C. Advocates on Record Association v. Union of India AIR 1994 SC 268

A public interest writ petition was filed in the Supreme Court by the Lawyers’ Association
raising several crucial issues concerning the Judges of the Supreme Court and the High Courts.
The petition was considered by a bench of nine Judges.

Referring to the ‘consultative’ process envisaged in Art. 124(2) for appointment of the Supreme
Court Judges, the Court emphasized that this procedure indicates that the Government does not
enjoy ‘primacy’ or “absolute discretion” in the matter of appointment of the Supreme Court
Judges.

Thus, in the matter of appointment of a Supreme Court Judge, the primary aim ought to be to
reach an agreed decision taking into account the views of all the consultees giving the greatest
weight to the opinion of the Chief Justice. When decision is reached by consensus, no question
of primacy arises.

Case Law on Contempt of Court

Maruti Udyog Ltd. v. Mahinder C. Mehta

The Managing Director and Director of a Company held liable for contempt, were sentenced to
undergo six months’ and three months’ imprisonment respectively. The Court said that “Any
publication which was calculated to interfere with the due course of justice or proper
administration of law would amount to contempt of court. A scurrilous attack on a judge, in
respect of a judgment or past conduct has in our country the inevitable effect of undermining the
confidence of the public in the judiciary; and if confidence in judiciary goes administration of
justice definitely suffers”.
Case Law on SLP

Commr., Central Excise & Customs v. M/s. Venus Castings (P) Ltd (2000) 4 SCC 206

The Supreme Court granted leave to appeal because of the uncertainty of law. The matter arose
under the Central Excise Act, 1944, and the rules made thereunder. In the instant case, on the
specific question of law, different High Courts had taken different views. Accordingly the
Supreme Court observed : “when there is uncertainty as to the state of law, it is eminently proper
for this court to grant leave in such a matter and settle the legal position.” Again an application
which could have been dismissed on the ground that the appellant has no locus standi was
entertained because the court felt that as a constitutional court “we felt it to be our duty to lay
down the law correctly so that similar mistakes are not committed
in future.” A point of law has been decided in an infructuous appeal because of the divergence of
views expressed by different High Courts on the issue. Again, an application which could have
been dismissed on the ground that the appellant has no locus standi was entertained because the
Court felt that as a Constitutional Court “we felt it to be our duty to lay down the law correctly so
that similar mistakes are not commited in future”.

Case Law on Advisory Jurisdiction

Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584

The Court has taken a very broad view of Art. 142. The Court has observed in relation to the
scope of its powers under Art. 142:
“The proposition that a provision in any ordinary law irrespective of the importance of the public
policy on which it is founded, operates to limit the powers of the Apex Court under Art. 142(1) is
unsound and erroneous..... The [Court’s] power under Article 142 is at an entirely different level
and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws
cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Art.
142.... Perhaps, the proper way of expressing the idea is that in exercising powers under Art. 142
and in assessing the needs of ‘complete justice’ of a cause or matter, the Apex Court will take
note of the express prohibitions in any substantive statutory provision based on some
fundamental principles of public policy and regulate the exercise of its power and discretion
accordingly. This proposition does not relate to the powers of the Court under Art. 142, but only
to what is or is not ‘complete justice’ of a cause or matter and in the ultimate analysis of the
propriety of the exercise of the power.”

Vishakha v. State of Rajasthan, (1997) 6 SCC 241

The Supreme Court has emphasized that it is the duty of the judiciary to fill the vacuum by
executive orders because its field is coterminous with that of the legislature and where there is
inaction even by the executive, for whatever reason, the judiciary must step in, in exercise of its
constitutional obligations under the aforesaid provisions to provide a solution till such time as the
legislature acts to perform its role by enacting proper legislation to cover the field.
R.K. Anand v. Registrar, Delhi High Court (2009) 8 SCC 106

A 3-judge Bench appears to have expressed acontrary view holding that the High Court could, in
appropriate cases, direct an Advocate who is found to be guilty of committing contempt to
prohibit him from appearing in the High Court or lower courts subordinate to it. Thus, where an
influential prisoner flouted all laws while in a particular jail, and it was imperative to transfer the
prisoner out of the state, even though there was no provision in either the Jail Manual or The
Transfer of Prisoners Act,1950, the “legislative vacuum” was filled and directions were given for
his transfer to a jail outside the State. Similarly, a decree for divorce on the ground of an
irretrievable breakdown of marriage was granted although the Hindu Marriage Act, 1955, under
which the matter arose, does not recognize it as one of the grounds on which a court can direct
dissolution of marriage. The limited power of review in the Designated Authority under Rule 23
of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping duty on
Dumped Articles and for Determination of Injury) Rules, 1995 was extended under this Article.

Anirudh Tyagi, Kritika Verma, Content Board, All India Legal Forum.