PROJECT

REPORT ON
UNION
JUDICIARY
Submitted to : Submitted by:

Dr. Shruti bedi GURPREET KAUR

Uils, P.U. 133/15

B.com llb

Section- C

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 Acknowledgement
Success is a blend of multiple efforts. The final import of this project
is also a result of the sheer hard work and constant support of many
people. I would like to take this opportunity to thank all of them.
To begin with, I would like to express my humble gratitude to my
teacher, Mrs. Shruti Bedi, for her able guidance and mentoring. The
meticulous manner in which she teaches has paid significantly in the
completion of this project.
Secondly, I would like to thank my department, University Institute
of Legal Studies, Panjab University, Chandigarh, for providing
such an expansive library which provided me all the relevant material
required for this project.
Last but not the least, I would like to express my profound gratitude
to my parents and my friends who have constantly supported and
motivated me throughout this project

GURPREET KAUR

INDEX
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Sino. particulars Page
no.

1. Establishment and constitution of 10

Supreme Court

2. Salaries, etc., of Judges 17

3. Appointment of acting Chief Justice 18

4. Appointment of ad hoc Judges 18

5. Attendance of retired Judges at the settings of 19

the supreme Court

6. Supreme Court to be a Court of Record 20

7. Seat of the supreme court 21

8. Original jurisdiction of the supreme court 21

9. Exclusive jurisdiction of the supreme court 23

10. Appellate jurisdiction of supreme court in 23

appeals from high court

11. Appellate jurisdiction of supreme court in 24

appeals from high court in civil matters

12. Appellate jurisdiction of the supreme court in 25

criminal matters

13. Certificate of appeal to the supreme court 27

14. Jurisdiction and powers of federal court 28

15. Special leave to appeal by supreme court 28

16. Conferment of the supreme court of powers to 31

issue certain writs

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17. Transfer of certain cases 31

18. Ancillary powers of the supreme court 32

19. Law declared by the supreme court 32

20. Enforcement of decrees and orders of the 33

supreme court

21. Power of president to consult the supreme 34

court

22. Civil and judicial authorities to act in the aid of 35

supreme court

23. Special provisions as to disposal of questions 35

24. Rules of court etc. 36

25. Officers and the servants and the expenses of 37

the supreme court

26. Interpretation 38

TABLE OF CASES
1. L. Chandra Kumar v. UOI. (1997) 3 SCC 261
2. A.N . Roy v. UOI. (1982) SCC 271

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 3. Union of India v. Sankalchand sheth, AIR1991 SC 631
4. S.P. Gupta v. UOI 1981 SCC 87; AIR 1982 SC 149
5. S.C Advocates-on record-association v. UOI AIR 1997 SC 2388
6. K. Veerawami v. UOI. (1991) 3 SCC 655
7. State of Bihar v. UOI. (1970) 1 SCC 67 AIR 1971 SC 1446
8. State of Rajasthan v. UOI (1977) 3 SCC 592 AIR 1977 SC 1361
9. Manju Verma v. State of U.P. 2005(1) SCC 73.
10. Re –Kerala Education Bill ,1958
11. B.M. Lakshami v. Municipal Committee (1970) 2 SCC 267
12. Bharat Earth Movers v. CIT Air 2000 SC 2636
13. Supreme court Employee Welfare Assn. v. UOI (1989) 4 SCC 187 AIR 1990 SC 334.

AN INTRODUCTION TO THE CONSTITUTION OF

INDIA
The Constitution of India was adopted by the Constituent Assembly on 26
November 1949, and came into effect on 26 January 1950. The Constituent
5
Assembly was the main body responsible for drafting the Constitution of
India that would lay the basis of governance. The Indian Constitution was
one of the first steps taken by an Independent India to form the base for a
democratic nation. The Constitution lays down the foundations of the
government under which the people of the country are to be governed. The
Constitution clearly establishes three main structures of the government - the
Judiciary, the Legislature and the Executive, their structure and functioning. The
structure of the Constitution also delineates the accountabilities of each utility.
The Constitution, thus, outlines the functions of all these three structures with
the government for the benefit of the citizens of the country. Made with
democratic ideals and a vision of autonomy, the Indian Constitution is the
first and last word in Indian law and governance and lays down the
national goals of democracy, socialism, secularism and national integration
while spelling out the rights, duties and obligations of the Indian Citizen.

The twenty-sixth January, 1950, was a red letter day in the long and chequered
history of India. For, on that day the present constitution of India was brought
into force which announced to the world the birth of a new republic. All the
laws in the country are enacted under this document and within this document
which is known as the Grundnorm of the country.1

It is the longest constitution ever drafted in the history of mankind. The Indian
constitution has 22 parts, 13 schedules and 444 articles. The articles and the
structures of the Indian constitution, provide the citizens with the rights and
liberties that are entitled to them on being a citizen of the country. 2There are
also long lists of duties that the Indian citizen has to follow as per the
constitution of the country.3 It is a written constitution that promises the citizens
of the country their sovereignty, and describes the fundamental rights, directive
principles and fundamental duties of the inhabitants. It follows a rigid and
flexible system and is centrally governed by the Government of the country,
allowing for amendments and additions to the original draft of the constitution.

Judicial System in India

1
Dr. Narender Kumar, Constitutional law of India 1 (Allahabad Law Agency, Delhi, 9th edn., 2015).
2
See Articles 15,16,19,29 and 30 of the Constitution of India.
3
See Article 51A of the Constitution of India.
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The Government of India has three different independent branches namely the
Executive, the Legislative and the Judiciary. The Indian judicial system was
formed by the British during their colonial rule in the country. This system is
known as the Common Law System in which the judges develop the laws with
their judgments, orders and decisions. The different types of courts form the
different levels of judiciary in the country. The apex court of India is the
Supreme Court, located in New Delhi, followed by the high courts in different
states. The high courts are followed by the district courts and subordinate
courts which are also known as the lower courts.

Supreme Court

High Courts

District Courts and additional

district judges

Subordinate Judge
Class I

Subordinate Judge
Class II

Court of small Causes for Court of Subordinate

Metropolitan Cities Judge Class III

SUPREME COURT
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The Supreme Court of India came into being on 28 January 1950 and
substituted the Judicial Committee of the Privy Council and the Federal Court
of India which were the apex legal system under the colonial rule in India.
There is one Chief Justice and 30 other judges in the Supreme Court who are
appointed by the Indian President. These judges retire after the attainment of
the age of 65 years. The apex court works extensively for the protection of the
fundamental rights of the Indian citizens. It is also a supreme authority as it
settles the disputes within several governments of the country. It also has an
authority to review any judgement or order earlier passed by it and can also
transfer cases from one high court to another and from one district court to
another.

The inaugural proceedings were simple but impressive. They began at 9.45 a.m.
when the Judges of the Federal Court - Chief Justice Harilal J.Kania and Justices
Saiyid Fazl Ali, M. Patanjali Sastri, Mehr Chand Mahajan, Bijan Kumar
Mukherjea and S.R.Das - took their seats. In attendance were the Chief Justices
of the High Courts of Allahabad, Bombay, Madras, Orissa, Assam, Nagpur,
Punjab, Saurashtra, Patiala and the East Punjab States Union, Mysore,
Hyderabad, Madhya Bharat and Travancore-Cochin. Along with the Attorney
General for India, M.C. Setalvad were present the Advocate Generals of
Bombay, Madras, Uttar Pradesh, Bihar, East Punjab, Orissa, Mysore, Hyderabad
and Madhya Bharat. Present too, were Prime Minister, other Ministers,
Ambassadors and diplomatic representatives of foreign States, a large number
of Senior and other Advocates of the Court and other distinguished visitors.

Taking care to ensure that the Rules of the Supreme Court were published and
the names of all the Advocates and agents of the Federal Court were brought
on the rolls of the Supreme Court, the inaugural proceedings were over and
put under part of the record of the Supreme Court.

After its inauguration on January 28, 1950, the Supreme Court commenced its
sittings in a part of the Parliament House. The Court moved into the present
building in 1958. The building is shaped to project the image of scales of
justice. The Central Wing of the building is the Centre Beam of the Scales. In
1979, two New Wings - the East Wing and the West Wing - were added to the
complex. In all there are 15 Court Rooms in the various wings of the building.
The Chief Justice's Court is the largest of the Courts located in the Centre of the
Central Wing.
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The original Constitution of 1950 envisaged a Supreme Court with a Chief
Justice and 7 puisne Judges - leaving it to Parliament to increase this number. In
the early years, all the Judges of the Supreme Court sat together to hear the
cases presented before them. As the work of the Court increased and arrears
of cases began to cumulate, Parliament increased the number of Judges from 8
in 1950 to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986 and 31 in 2008
(current strength). As the number of the Judges has increased, they sit in
smaller Benches of two and three - coming together in larger Benches of 5 and
more only when required to do so or to settle a difference of opinion or
controversy.

The Supreme Court of India comprises the Chief Justice and not more than 30
other Judges appointed by the President of India. Supreme Court Judges retire
upon attaining the age of 65 years. In order to be appointed as a Judge of the
Supreme Court, a person must be a citizen of India and must have been, for at
least five years, a Judge of a High Court or of two or more such Courts in
succession, or an Advocate of a High Court or of two or more such Courts in
succession for at least 10 years or he must be, in the opinion of the President, a
distinguished jurist. Provisions exist for the appointment of a Judge of a High
Court as an Ad-hoc Judge of the Supreme Court and for retired Judges of the
Supreme Court or High Courts to sit and act as Judges of that Court.

The Constitution seeks to ensure the independence of Supreme Court Judges in

various ways. A Judge of the Supreme Court cannot be removed from office
except by an order of the President passed after an address in 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 members present and voting, and
presented to the President in the same Session for such removal on the ground
of proved misbehaviour or incapacity. A person who has been a Judge of the
Supreme Court is debarred from practising in any court of law or before any
other authority in India.

ARTICLES UNDER UNION

JUDICIARY
(ARTICLE 124-147)
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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 seven 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 provide in
clause(4).
(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

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 incapacity.
(5) Parliament may by law regulate the procedure for the presentation of
an address and for the investigation and proof of the misbehaviour or
incapacity of a Judge under clause (4).
(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 of before any authority within the territory of
India.

Clause 1

According to Article 124 Clause 1 of Constitution, there shall be Supreme Court

of India, in which there will be a Supreme Judge called as Chief Justice of India
and there can be more of them if Parliament by law prescribes and provides it.
Judicial power in the sense of the judicial power of the State vests in the courts
or the judiciary4. The independence of the judiciary from the executive and the
legislature as well as independence of each and every judge within the judiciary
is considered as a necessary condition for a free society and a constitutional
democracy5. It ensures the realisation of human rights and also the prosperity
and stability of a society. Therefore, the Constitution provides for the
independence not only of the Supreme Court but also of the High Courts and the
subordinate courts. The Supreme Court has also held more than once that the
independence of the judiciary is a basic feature of the Constitution and any
attempt to curtail it directly or indirectly even by an amendment of the
Constitution is invalid.

The Supreme Court of India: - Clause (1) The Court consists of a Chief
Justice and, until Parliament by law prescribes a larger number, not more than
seven other judges. Parliament has now increased the number of other judges to
306. The Court has held that the number of judges should be commensurate to
the amount of work. Otherwise the judiciary cannot perform its constitutional
obligation. Clause (3) of Article 145 lies down that no case involving a
substantial question of law as to the interpretation of the Constitution or a
reference under Article 143 shall be decided by less than five judges.
4
L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.
5
A.K Roy v. Union of India, (1982) 1 SCC 271,295: AIR 1982 SC 710.
6
The Supreme Court (Number of Judges) Amendment Act,2008 (11 of 2009)
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Clause 2

According to Clause 2 of Article 124 of Constitution, every judge of the

Supreme Court shall be appointed by the president by warrant under his hand
and seal after consultation of the judges of the Supreme Court and of the high
court.

It also states that the judge so appointed shall hold office provided to him, until
he attains the age of 65 years.

And before this tenure of his age of 65 years he cannot be removed as

mentioned in clause 4 of the article 124 of constitution of India.

Provided condition in which judge is removed before this tenure:-

a) A judge may address to the president of India, by writing under his hand
can resign and leave the office provided to him.
b) Other manner in which Judge can be removed is mentioned in clause 4 of
Article 124 of constitution of India and states that the Judges of the
Supreme Court can be removed by an order of the President passed after
an address by each house of the parliament supported by majority of total
membership of the house and that majority must not be less than 2/3 rd of
the members of that house provided that the voting has been presented t
the President in the same session on the Ground of proved misbehaviour
or incapacity of the Judge in doing his prescribed duty.

Clause 2 lays down the method of appointment of the Judges of the Supreme
Court. Every judge of the Supreme Court is appointed by the President by
warrant under his hand and seal. The Constitution requires him to consult
such of the judges of the Supreme Court and High Courts. It also requires
him to always consult the chief justice of India in the appointment of a judge
other than Chief Justice of India. According to these provisions, the process
of appointment of the judges is initiated by the Chief Justice through a
collegium consisting of him and four of the senior most judges of the court.
The recommendation of the collegium is binding on the President. He may,
however, not appoint a person whom he does not consider suitable for
appointment. In such case the collegium must reconsider its
recommendation. On reconsideration it may either drop the name of the
person or reiterate its recommendation. In reiterating, the President is bound

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 to accept the recommendation. The court has overruled the given primacy to
the President in matter of appointment of judges.

The Constitution gives no indication of the procedure for the appointment of

the Chief Justice. Over the years a convention was developed that the senior
most judges would become the Chief Justice whenever the vacancy arose.
However this convention was not followed on the retirement of the 13 th
Chief Justice, Sikri. Justice A.N. Ray was appointed the Chief Justice
superseding justices Shelat, Grover and Hegde. The three superseded judges
resigned in the protest. Again on the retirement of Chief Justice Ray, the
senior most judges, Justice Khanna was superseded and Justice Beg was
appointed as the Chief Justice. Justice Khanna resigned in this protest.
However, after the retirement of Justice Beg, the senior most judge Justice
Chandrachud was appointed as the Chief Justice. Since then, the seniority
rule is being followed. The Supreme Court has held that as a matter of rule
the senior most judge of the Supreme Court shall always be appointed by the
Chief Justice of India.

In the view of the fact that the independence of the Judiciary is a basic
feature of the Constitution and that the executive in the past has time to time
used the power of appointment to undermine the independence of Judiciary
against which measures like Court interpretation have been suggested. The
interpretation also takes care of any arbitrariness on the part of the Chief
Justice by providing a collegium.

As we know the age of the retirement of a judge of the Supreme Court is

65years, therefore it has been held that the power to appoint a judge is an
executing power but the power to determine his age is a judicial power.

Following are the three cases:

Union of India v. sankalchand sheth: a case decides under art 222 relating to
the transfer of high court judges; the Supreme Court held that the word
consultation meant full and effective consultation. But the president had a right
to differ from those he consulted . However he must have a good reason for not
accepting the advise of those.

Supreme In S.P. Gupta v. Union of India 7(also known as the Judges' Transfer
case 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
7
AIR 1982 SC 268. This case is popularly known as the First Judges Transfer Case.
13
observed that the appointment of the judges was not an executive act but the
result of consultation.

In sc Court Advocates-on Record Association vs Union of India – 1993: the

Supreme Court by a 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 other judges
of the Supreme Court.

Doubts had arisen about the interpretation of the laws, on the extension of the
law, on the extent and manner in which the norms laid down in the second
judge case, on appointments and transfers to be followed. The president
considered it in the public interest to seek the advisory opinion of the Supreme
Court and referred to the court, nine questions for clarification, under article 143

Answering to presidential references, a nine judge constitution bench of the

Supreme Court reported to the president a significant unanimous opinion.

Over the course of the three cases, the court evolved the principle of judicial
independence to mean that no other branch of the state - including the
legislature and the executive - would have any say in the appointment of judges.
The court then created the collegium system, which has been in use since the
judgment in the Second Judges Case was issued in 1993. There is no mention of
the collegium either in the original Constitution of India or in successive
amendments.
The Third Judges Case of 1998 is not a case but an opinion delivered by the
Supreme Court of India responding to a question of law regarding the collegium
system, raised by then President of India K. R. Narayanan, in July 1998 under
his constitutional powers.

Further, in January 2013, the court dismissed as without locus standi, public
interest litigation filed by NGO Suraz India Trust that sought to challenge the
collegium system of appointment

In July 2013, Chief Justice of India P. Sathasivam spoke against

any attempts to change the collegium system.
On the 5th of September, 2013, the Rajya Sabah passed The Constitution(120th
Amendment) bill, 2013, that amends articles 124(2) and 217(1) of the
Constitution of India, 1950 and establishes the Judicial Appointment
Commission, on whose recommendation the President would appoint judges to
the higher judiciary. The critical aspect about the new setup that the
Government through the amendment seeks to achieve is the composition of the
judicial appointment commission, the responsibility of which the amendment
14
bill lays on the hands of the Parliament to regulate by way of Acts, rules,
regulations etc. passed through the regular legislative process.

Clause 3

The Clause 3 of the Article 124of the constitution of India provides the
qualification of the Judge of the Supreme Court.

According to this clause a person can be appointed as be Appointed as the Judge

of the Supreme Court if:

1) He is a India and
2) He has been a Judge in one or more high courts located in the territory of
India for the period of minimum 5 years or
3) He has been practicing as a lawyer in one or more high courts for a period of
minimum 10 years or
4) He is a distinguished jurist, in the opinion of the President of India.

There was no provision in Draft constitution for appointment of non-practicing

lawyers as judges of the Supreme Court. It was during the consideration of the
Draft that the provision of distinguished jurist was included. This would enable
the Supreme Court to get the benefits of the talent of the non-practicing lawyers.
However it was a debateable issue that if an academic lawyer can decide the
civil and criminal cases or not.

Clause 4

According to the Clause 4 of The article 124 of the Constitution of India The
judge cannot be removed except in one situation where The Judge of the
Supreme Court is Being removed by the order of the President passed after an
address by each house of the parliament supported by majority of total
membership of the house and that majority must not be less than 2/3 rd of the
members of that house provided that the voting has been presented t the
President in the same session on the Ground of proved misbehaviour or
incapacity of the Judge in doing his prescribed duty.

Clause 5

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Clause 5 of the Constitution of India prescribes that the Parliament, by law may
regulate the procedure for presentation and investigation that is to be done to
prove the incapacity or misbehaviour of the judge as mentioned in clause 4 of
this article, is reason for his removal by law as given by the Parliament.

Such Procedure has been laid down in the Judges (Inquiry) Act, 1968.
Although the address for the removal of the judge has to be presented in the
same session8, the proceedings for the investigation and the proof can be started
earlier i.e. in the previous session or even in previous Parliament.

The process for the removal of the judge is parliamentary process which cannot
be subjected to judicial intervention.

By oath the Judges of the Supreme Court and high court are bound to perform
the duties without fear or favour or ill- will.

How difficult is the process of the removal the Judge under Article 124 (4) is
sufficiently proved by the fact that the only case in which it has been invoked
since commencement of the constitution ended up in the favour of the judges in
spite of removal of the judges from the bar, media and the parliamentarians.

Clause 6

According to the clause 6 of the article 124 of the constitution of India, any
individual who is appointed as the judge of the Supreme Court shall address to
president and subscribe before him an Oath or Affirmation as mentioned in
Third Schedule and in the form set form set for this. This addressing before the
president by the judge of the Supreme Court shall be done before he enters the
office provide to him in the Supreme Court.

Clause 7

8
K. Veerswami v. Union Of India, (1991) 3 SCC 655,676.
16
Clause 7 of the Article 124 of the Constitution of India states us that the person
who is appointed as the Judge of The Supreme Court shall not plea or Act in any
court within the territory the country.

Clause 7 deprives a person who has held the office of a judge of the Supreme
Court of the Liberty to plead or Act in any court or before any authority within
the territory of India, such as Income tax Tribunal, Labour Tribunal,
Administrative Tribunals, etc. But he may be required to attend settings of the
court, and while so setting, he will be entitled to such allowances as may be
fixed by the president9.

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 not 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.

According to the 44th amendment of Article 125 of the constitution of India, the
judges of the Supreme Court shall be paid their salaries as determined by the
law made by the parliament as per prescribed in second schedule.

The High court and Supreme Court judges are given ₹90000 and ₹100000
respectively per month10.

Every judge of the supreme court is entitled to privileges and allowances and to
rights in respect of leave of absence and pension from time to time, be
determined by the law made by Parliament specified in second schedule.
However the salary of the judges of the Supreme Court in taxable under income
tax act, 1961 under head Salaries.

Article 126: Appointment of acting Chief Justice

9
Given in Article 128.
10
According to 6th Central Pay Commission.
17
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.

According to Article 126 when the office of the Chief Justice of India is Vacant
or when Chief Justice is, by reason of absence, is unable to perform the duties
of his office, the duties of the office shall be performed by one of the other
judges of The Supreme 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.

Clause 1

According to clause 1 of the Article 127 of Constitution, if at any time there is

no quorum of the judges available to hold or continue any session of the court,
the National Judicial Appointment Commission by reference made to chief
justice of India with prior consent of the president and after consulting with
chief Justice of the High Court which is being contacted and whose one of the
judge will be requested in writing to act as an ad hoc Judge in the Supreme
Court for a period as may be necessary.

The Judge of that High Court which is being appointed, should be qualified to
be a Judge of The Supreme Court.
18
Clause 2

The duty of the Judge so appointed should attend the settings of the Supreme
Court for a period for which his attendance is required. And all this time he shall
have the Jurisdiction powers and privileges and duties of a Judge of the
Supreme Court.

Article 128: Attendance of retired Judges at sittings of the

Supreme Court

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 as 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.

According to the Article 128, the chief Justice of India, the previous consent of
the President, may request the retired Judges of The Supreme Court or the
Federal Court11 or the High court to sit and act as a Judge of the Supreme Court.

The person to be requested shall be entitled to such allowances as the President

may by order determine.

Such a person while acting as such a Judge shall have all the Jurisdiction,
powers and privileges of a Judge of that Court. There shall be no compulsion on
the retired judge to accept the invitation.

JURISDICTION OF THE SUPREME COURT

Article 129: Supreme Court to be a court of record

11
The Constitution (Fifteenth Amendment) Act, 1963.
19
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.

The Supreme Court is declared to be a court to be a court of record. A court of

record is that Court, the records of which are admitted to be of evidentiary value
and cannot be questioned when they are produced before a court. Secondly, a
Court of Record has inherent power, being such a Court, to punish for contempt
of itself12.

The Contempt of Courts Act, 1971 defines the powers of Courts for punishing
contempt of courts and regulates the procedure therefore. Section 2(a) of the act
provides that contempt of court includes both civil and criminal contempt.

Civil contempt means wilful disobedience of any judgement, decree, direction,

order, writ or other process of a court or wilful breach of an undertaking given
to a court. Deliberately making an inaccurate report to mislead the Court.

Criminal contempt means the publication, (whether by words spoken or

written) of any Matter or doing of any act, whatsoever, which –
i) scandalises or tends to scandalise or lower or tends to lower the authority of
any court, or
ii) prejudices or tends to prejudice or interferes or tends to interfere with the
due course of any judicial proceeding, or
iii)Interferes or tends to interfere with or obstructs or tends to obstruct, the
administration of justice, in any manner13.

Contempt is matter between the court and the contemnor. 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 mantainence of the rule of Law.

The purpose is to uphold the majesty and dignity of an individual judge but to
protect the administration of justice from being maligned.

A contempt of Court may be punished with simple imprisonment for a term

which may extent to six months, or with fine which may extent to Rs. 2000, or
with both. However, a contempt is not punishable unless it is of such a nature
that it substantially interferes or tends substantially to interfere with the due
course of Justice. Truth may be a justification if it was found to be in public
interest14.

12
Dr. BR Ambedkar, CAD, VII, 382.
13
Section 2 (c ) of the Contempt Of Courts Act, 1971.
14
The Contempt of Courts (Amendment) Act, 2006.
20
Delhi Judicial Service Association v. State of Gujarat, the supreme court
punished five police offers for harassing and handcuffing the Chief Judicial
Magistrate of the city of Nadiad in the State of Gujarat, which act amounted to
contempt of the court of the Chief Judicial Magistrate. The court said that the
expression “including” Article 129 had extended and widened the scope of the
power. It plainly indicated that the Supreme Court, being a Court of record, had
power to punish for contempt of itself and also something else which would fall
within the inherent Jurisdiction of a Court of Record. This inherent power, the
court ruled, was necessary to safeguard and protect the subordinate judiciary
which formed the very backbone of administration of justice.

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.

At present and from 1950, the Supreme Court sits in New Delhi. The Court may
sit in such other places as the Chief Justice of India may, with the approval of
the President, from time to time appoint.

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 of 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 of 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.

Article 131 (1) confers on the Supreme Court exclusive original jurisdiction It
provides that the Supreme Court shall have original jurisdiction, to the
21
exclusion of any other Court, in a dispute provided the following conditions are
compiled with. These are –
a) The dispute must be –
i) Between the Government of India and one or more States ; or
ii) Between the government of India and any State on one side and one
State on the other ; or
iii) Between two or more states.
b) The dispute must involve any question (whether of law or fact) on which
the existence or extent of a legal right depends.

Parties to the Dispute

Although, Article 131does not define the scope of the disputes which the
Supreme Court may be called upon to determine, so far as the parties to the
dispute are concerned, the farmers of the constitution did intend that they
could only be the constituent units of the Union of India and the Government
of India itself with another unit or the Government of India15.

State of Bihar v. Union of India 16, the supreme court 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 disputant 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 on the other side.

In the instant case, a constitution Bench of the Supreme Court, while

deciding a case wherein the State of Bihar had not only sued the Union of
India but also Hindustan Steel Ltd., in regard to negligence or deliberate
action of servants of both the defendants, therein the matter of short delivery
of iron and steel material ordered by the state in connection with the
construction work of Gandhak Project, held that such a suit would not be
maintainable.
It may, thus be stated that Article 131 will not be applicable where citizens or
private bodies are parties either jointly or alternative with the State or the
Government of India.

Nature of the Dispute

The second requirement to invoke the exclusive original jurisdiction of the

Supreme Court under Article 131 is that :

The dispute must involve any question on which the existence or extent of a
legal right depends.

15
State of Bihar v. Union of India, AIR 1970 1446.
16
AIR 1970 1446.
22
 State of Rajasthan v. Union of India 17, the question before the Court was
whether the term state in Article 131 9a) also include within its purview
“State Government”. The dispute arose out of directive issued by the
Government of India requiring the chief ministers of congress ruled states to
advice their Government to dissolve their Legislative assemblies.

The Supreme Court held that the dispute was well with n the Article 131.
The court held that Article 131 should not be given restrictive meaning and
that a dispute between the Central Government and State Governments,
involving a legal right would be included under article 131.
Provision to Article 131 declares the Original Jurisdiction of the Supreme
Court does not extend to the following disputes :-

(1) A dispute arising out of any treaty, agreement , covenant engagement

sanad or other instruments which entered into before the commencement
of the Constitution and continues after the commencement of the
Constitution,
(2) A dispute arising out of any treaty will not be covered under original
jurisdiction of the Supreme court.

Parliament may by law exclude the jurisdiction of the Supreme Court in

Disputes between the States with respect to the use of interstate rivers or
river valleys. Article 280 excludes the jurisdiction of the Supreme Court with
respect to the matters referred to the Finance Commission.

Article 131A: Executive jurisdiction of the Supreme Court in

regard to questions as to constitutional validity of Central laws
{…} —Repealed.

Article 132: Appellate jurisdiction of Supreme Court in appeals

from High Court in certain cases

(1) An appeal shall lie to the Supreme Court from any judgement, decree of
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, any party in the case may appeal to the

17
AIR 1977 SC 1361.
23
Supreme Court on the ground that any such question as aforesaid has been
wrongly decided.
Explanation: For the purpose of this article, the expression “final order”
includes an order deciding an issue which, if decided in favour of the appellant,
would be sufficient for the final disposal of the case.

An appeal18 shall lie to the Supreme Court under Article 132 only when the
Following Conditions are Satisfied :

i) The judgement, decree or Final order appealed against, must involve a

substantial question of law.
ii) The judgement, decree, or Final order appealed aganst, may be made
by the High court in any Civil, criminal or other Proceedings,
iii) The High Court must give a certificate uder Article 134 A to the
following effect :

“That the case involves a substantial question of law as to the

interpretation of the Constitution”.

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 room any judgement, 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 judgement, decree
or final order of one Judge of a High Court.

Clause 1
The appeal under Article 133 lies to the Supreme Court against the decision of
18
An “appeal” is said to be an application by a party, to an appellate Court, asking it to set aside or revise a
decision of a subordinate court. It includes “the removal of cause or a suit from an inferior to a superior Judge
or Court for re-examination or review”.
24
the High Courts under the Following conditions:

i) The judgement, decree or final order appealed against must have been passed
or made by the High Court in any civil proceeding,
ii) The High Court must give a certificate, under Article 134-A to the following
effect :-

a) That the case involves a substantial question of law of general

importance,
b) That in the opinion of the High Court, the said question needs to be
decided by the Supreme Court.

Clause 2
Clause 2 of the Article 133 provides that any appeal made by any party to the
Supreme Court under clause 1 must be on the ground that there is substantial
question on a law of this Constitution and it is been wrongly decided.

No appeal lies Against the Decision of a Single Judge

Clause 3 of the Article 133 provides that no appeal shall lie to the Supreme
Court from the Judgement, Decree or Final Order of a Single Judge of the High
Court, However, Parliament, by law, may remove this prohibition.

Article 134: Appellate jurisdiction of Supreme Court in regard to

criminal matters

(1) An appeal shall lie to the Supreme Court from any judgement, 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) certified 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

25
criminal proceeding of a High Court in the territory of India subject to such
conditions and limitations as may be specified in such law.

Clause 1
Article 134 (1) provides that An appeal shall lie to the Supreme Court from any
judgement, 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 and order of acquittal of an accused person and

sentenced him to Death, or
b) Has withdrawn the 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.

In the above 2 cases, no certificate needs to be obtained from the High Court
and the accused person may go in appeal to the Supreme Court in hs own
right.

The term acquittal in article 134 (1) (a) does not mean that the trial must
have been ended in a complete acquittal but would include the case where
the accused have been acquitted of the charge of murder and has been
convicted of a lesser offence.
Appeal with a Certificate [Article 134 (1) (c )]

An appeal shall lie to the Supreme Court from anu judgement, fina order or
sentence in a criminal proceeding of a high court if the High Court certifies
under Article 134 A that :-

That the case is fit one for appeal to the Supreme Court.
Provision to clause ( c ) of Article 134 explains that an appeal there under
shall lie subject to such provisions as may be made in its behalf under clause
(1) of Article 145.
Clause 2
Clause 2 of Article 134 of Constitution of India provides us that the
Parliament may by law confer to Supreme Court, any powers to hear the
appeal from any Judgement of Order of High Court to some Conditions that
are specified in law.

Article 134A19: 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

19
Constitution ( 44th Amendment) Act, 1978, S. 20 (w.e.f. 1-8-1979).
26
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) or 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.

According to article 134 A of constitution of India, every High Court passing or

making Judgement :-
a) May, if it seems to do so, on its own motion; and
b) Shall, if an oral application is made, y or on behalf of the party aggrieved,
immediately after the passing or making of such judgement, decree, final
order or sentence, shall determine after such passing or making, the
question whether a certificate of the nature referred to the clause 1 of the
Article 132, or clause (1) of Article 133 or sub clause ( c) of clause (1) of
Article 134, may be given in respect of that clause.

Article 135: Jurisdiction and powers of the Federal Court under

existing law to be exercisable by the Supreme Court

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.

This article was included in the constitution to enable the Supreme Court to
exercise jurisdiction on the cases which were not covered by the Article 133 and
134, in respect of matters where Federal court had jurisdiction to entertain the
appeals from the High Court.

For this Article to apply it is necessary that following 2 conditions are satisfied :

i) Articles 133 and 134 should not apply to the case;

ii) It should be a case in regard to which the Federal Court would have the
Jurisdiction to entertain the appeal under the law in force immediately before
the commencement of the Constitution.

27
When these two conditions are fulfilled the Supreme Court can give its order,
judgement or decree on such case.

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.

Article 136 (1) confers discretion on the Supreme Court to grant, special leave
to appeal before itself, any judgment, determination, sentence, order passed or
made by any court or tribunal in any cause or matter.

Distinction Between Article 136 & Article 132 to 13420

(a) While, under Articles 132 to134, an appeal to the Supreme Court lies
against a decision of the High Court-under Article 136, it may lie against the
decision of any court or tribunal.
(b) While under Article 132 a to 134, an appeal lies to the Supreme Court
against the final order of the High Court – under Article 136, it may lie
against an order whether final or not .
(c) While under Articles 132 to 134, an appeal can lie only against judgements
decrees final orders or sentences passes or made by the High Courts and
under Article 136, the Supreme Court may entertain appeal against not only
judgements, decrees, orders or sentences but also against any determination,
(d) While under Articles 132 to 134, appealed against must have been passed or
made in any civil, criminal or other proceedings of a High Court and under
Article 136 decisions made or passed in any cause or matter may also be
appealed against
(e) While, under Articles 132 to 134, an appeal lies only when the high Court
grants a certificate of fitness under 134 A and under article 136, an appeal
lies only when the Supreme Court, in its discretion, has granted special
leave to appeal before itself.

Article 137: Review of judgements or orders by the Supreme

Court

20
Manju Verma v. State of U.P., 2005(1) SCC 73.
28
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.

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 excercisable in accordance with, and subject to, the rules of 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 court may review its judgements on the grpunds mentioned in Order 47,
Rule 1 of the Civil Procedure Code.

These grounds are:

i) Discovery of new and important matter or evidence;
ii) Any mistake or error apparent to the face of the record;
iii) Any other sufficient reason.

Article 138: Enlargement of the jurisdiction of the Supreme

Court

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

Clause 1 of the article 138 empowers the Parliament to confer by law on the
supreme court additional jurisdiction and powers with the respect to any if the
matters enumerated on the Union List.

It implies that more and greater jurisdiction and powers can be conferred on the
Supreme Court than what the provisions authorise.

Even in matters already dealt with Parliament, by law, may enlarge the
jurisdiction of the Supreme Court. For example- Parliament may confer on the
Court original jurisdiction in matters excluded under privisio to Article 131.

Clause 2 of Article 138 provide the Government of India and the Government
of any State, may by Special agreement confer on the Supreme Court, additional
jurisdiction and powers with respect to any matter. However, the court would
exercise such additional jurisdiction so conferred only when the Parliament, by
law, allows it.
29
Parliament is authorised under this article to invest the supreme Court with
additional jurisdiction with respect to the enforcement of any of the matters
enumerated in the Union List.

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.

Under Article 32, the Supreme Court has the power to issue directions orders or
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari for the enforcement of the rights conferred by Part 3 of The
Constitution. This Article empowers Parliament to confer power upon the
Supreme Court to issue the above writs or orders for the purpose other than the
enforcement of the fundamental rights. The importance of the writs lies in the
fact that they can be sought by an aggrieved party without bringing a regular
suit or proceeding.

Article 139A: Transfer of certain cases

(1) Where cases involving the same or substantially the same questions of law
are pending before the Supreme Court and one or more High Courts or before
two or more High Courts and the Supreme Court is satisfied on its own motion
or on an application made by the Attorney-General of India or by a party to any
such case that such questions are substantial questions of general importance,
the Supreme Court may withdraw the case or cases pending before the High
Court of the High Courts and dispose of all the cases itself:
Provided that the Supreme Court may after determining the said questions of
law return any case so withdrawn together with a copy of its judgment on such
questions to the High Court from which the case has been withdrawn, and the
High Court shall on receipt thereof, proceed to dispose of the case in conformity
with such judgment.
(2) The Supreme Court may, if it deems it expedient so to do for the ends of
justice, transfer any case, appeal or other proceedings pending before any High
Court to any other High Court.

According to the Article 139 (A) of the constitution of India, which as added by
30
42nd amendment in 1976, Empowers the Supreme Court to dispose of the cases
which raise the same questions or substantially same questions and which are
pending in Supreme Court or High Court or in opinion of Attorney general of
India are question of general importance, the supreme Court may withdraw
these case or cases held pending before High Court and Supreme Court and may
dispose of all the cases itself.

Article 139 A enables the litigants to approach the Supreme Court for transfer of
proceeding, when the same or substantially similar questions of law of general
importance are involved in the cases pending before the Apex Court and a High
Court or several High Courts. The object is to avoid difference in the opinion,
on the same question. It provides for the disposal of the same questions in all
such pending cases by 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.

According of Article 140 of the Constitution of India provides the Supreme

Court with Some power with the object that the Supreme Court exercises its
jurisdiction more effectively so Parliament may by law; confer on the court,
supplemental or anciliary powers. It is to expand the jurisdiction and the powers
of the Supreme Court over and above what the Constitution confers.

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.

This article enacts that the law declared by the Supreme Court shall be binding
on all the Courts in the territory of India. The expression law declared is wider
than law found or made and implies the law creating role of the Court. The
expression All Courts means courts other than Supreme Court. The decision of
the Supreme Court is binding on the High Court and it cannot ignore it on the
ground that relevant provisions were bought in the notice of the Supreme Court
31
and hence its decision is not binding21.

The Supreme Court is not bound by its own decisions and may overrule its
previous decisions. It may overrule them either by expressly saying so or
impliedly by not following them in a subsequent case. As compared to other
decisions, it would more readily reverse decisions on constitutional questions if
it is convinced that the previous decision is clearly erroneous (wrong).

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 order prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the
Supreme Court shall, as respects the whole of the territory of India, have all and
every power to make any order for the purpose of securing the attendance of
any person, the discovery or production of any documents, or the investigation
or punishment of any contempt of itself.

The Supreme Court, in the exercise of its jurisdiction, may pass such orders as
is necessary for doing complete justice in matter pending before it. Its exercise
is subject only to the conditions that (1) it can be exercised only when the Court
otherwise exercises its jurisdiction and (2) the order passed by the court must be
necessary for doing complete justice in the cause or matter pending before it.
The order made by the court shall be enforceable in such a manner as may be
prescribed by or under any law made by Parliament, but only throughout the
territory of India. Until provision is made by the parliament, the orders of the
court will be enforced in the manner provided by the President22.

An order under Article 142 in order to do complete justice between the parties
must not only be consistent with the fundamental rights guaranteed by the
constitution but also with the substantive provisions of relevant statutory laws.

Thus in the exercise of its power to punish a lawyer of its contempt the court
cannot cancel or suspend his licence under Article 142 because the power to do
so is specifically assigned to the Bar Council of India under The Advocates
21
B.M. Lakshami v. Municipal Committee, 1970 2 SCC 267.
22
Supreme Court (Decrees and orders ) Enforcement Order,1950, made by the president and published under
notification no. S.R.O. 49, dated 12th May 1950, in the Gazette of India, Extraordinary, 1950, Part ii, S. 3, p. 13.
32
Act,1961.

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 the proviso to article 131,
refer a dispute of the kind mentioned in the said proviso to the Supreme Court
for opinion and the Supreme Court shall, after hearing as it things fit, report to
the President its opinion thereon.

Normally the functions of a court of law to answer questions of law or fact

when properly raised before it in a dispute between the parties. This Article,
however, confers a particular jurisdiction, commonly called the consultative or
advisory jurisdiction, on the Supreme Court to give its opinion on questions
unconnected with a pending case.

Article 143 authorises the President to refer to the Supreme Court a Question of
law or fact which in his opinion is of such a nature and of such public
importance that it ids expedient to obtain its opinion upon it. There is no
condition that it is only in respect of matters falling within the powers, functions
and duties of the president that it would be competent to him to frame questions
for the advisory opinion of the Supreme Court. The only conditions are ; i) that
he should be satisfied that such a question of law or fact has arisen or likely to
arise; ii) that he should also be satisfied that such a question is of such a nature
and of such public importance that it is expedient to obtain the opinion of the
court on it.
Re : kerela education bill , 1958
A question of law which has already been decided by the Supreme Court in the
exercise of its judicial powers cannot be referred to the Court under Article 143.
The Court cannot sit in appeal against its earlier decisions in the exercise of its
advisory jurisdiction under Article 143.

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.

33
Article 144 requires the authorities, civil and criminal to go by the orders passed
by the Supreme Court. Any attempt to question the correctness of such orders is
not permissible and such an attempt would be an abuse of the process of the
court. Thus, where the Supreme Court ordered that regardless of the technical
limitations of the review petition, the High Court should consider certain
questions, it would be imperative for the High Court to have decided those
questions.

Article 144 obliges all the authorities, civil and judicial, in the territory of India,
to act in aid of the Apex Court. Failure to comply with the directions of
Supreme Court by nay court or tribunal has to be deplored.

Article 144A: Special provisions as to disposal of questions

relating to constitutional validity of laws
{…} — Repealed

Article 145: Rules of Court, etc.

(1) Subject to the provisions of any law made by Parliament, the Supreme Court
may from time to time, with the approval of the President, make rules for
regulating generally the practice and procedure of the Court including –
(a) rules as to the persons practising before the Court;
(b) rules as to the procedure for hearing appeals and other matters pertaining to
appeals including the time within which appeals to the Court are to be entered;
(c) rules as to the proceedings in the Court for the enforcement of any of the
rights conferred by Part III;
(cc) rules as to the proceedings in the Court under article 139A;
(d) rules as to the entertainment of appeals under sub-clause (c) of clause (1) of
article 134;
(e) rules as to the conditions subject to which any judgement pronounced or
order made by the Court may be reviewed and the procedure for such review
including the time within which applications to the Court or such review are to
be entered;
(f) rules as to the costs of and incidental to any proceedings in the Court and as
to the fees to be charged in respect of proceedings therein;
(g) rules as to the granting of bail;
(h) rules as to stay of proceedings;
(i) rules providing for the summary determination of any appeal which appears
to the Court to be frivolous or vexations or brought for the purpose of delay;
(j) rules as to the procedure for inquiries referred to in clause (1) of article 317.
34
(2) Subject to the provisions of clause (3), rules made under this article may fix
the minimum number of Judges who are to sit for any purpose, and may provide
for the powers of single Judges and Division Courts.
(3) The minimum number of Judges who are to sit for the purpose of deciding
any case involving a substantial question of law as to the interpretation of this
Constitution or for the purpose of hearing any reference under article 143 shall
be five:
Provided that, where the Court hearing an appeal under any of the provisions of
this Chapter other than article 132 consists of less than five Judges and in the
course of the hearing of the appeal of the Court is satisfied that the appeal
involves a substantial question of law as to the interpretation of this Constitution
the determination of which is necessary for the disposal of the appeal, such
Court shall refer the question for opinion to a Court constituted as required by
this clause for the purpose of deciding any case involving such a question and
shall on receipt of the opinion dispose of the appeal in conformity with such
opinion.
(4) No judgement shall be delivered by the Supreme Court save in open Court,
and no report shall be made under article 143 save in accordance with an
opinion also delivered in open Court.
(5) No judgement and so such opinion shall be delivered by the Supreme Court
save with the concurrence of a majority of the Judges present at the hearing of
the case, but nothing in this clause shall be deemed to prevent a Judge who does
not concur from delivering a dissenting judgement or opinion.

Clause 1 confers on the Supreme Court, rulemaking power for regulating

generally its practice and procedure including such matters as to persons
practicing before, procedure for hearing appeals, conditions for reviewing its
own decisions, fees, grant of bail, stay of proceedings etc.

This rule making power is, however subjected to the provisions of any law
made by Parliament and the rules so made need the approval of the president.
Again the rule so made must be consistent with the provisions of the
constitution.

The rule making power includes the power to fix the minimum number of
judges who will sit for any purpose. However the minimum number of judges to
hear and decide a case involving a substantial question of law as to the
interpretation of this constitution or for hearing a reference under article 143,
shall be five.
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Clause 4 requires the Supreme Court to give its judgement in the open court.
Clause 5 further provides that all the judgements must be delivered with the
concurrence of a majority of judges present at the hearing, however, a judge not
agreeing with majority, is free to give his dissenting judgement.

Article 146: Officers and servants and the expenses of the

Supreme Court

(1) Appointments of officers and servants of the Supreme Court shall be made
by the Chief Justice of India or such other Judge or officer of the Court as he
may direct:
Provided that the President may by rule require that in such cases as may be
specified in the rule, no person not already attached to the Court shall be
appointed to any office connected with the Court, save after consultation with
the Union Public Service Commission.
(2) Subject to the provisions of any law made by Parliament, the conditions of
service of officers and servants of the Supreme Court shall be such as may be
prescribed by rules made by the Chief Justice of India or by some other Judge
or officer of the Court authorised by the Chief Justice of India to make rules for
the purpose:
Provided that the rules made under this clause shall, so far as they relate to
salaries, allowances, leave or pensions, require the approval of the President.
(3) The administrative expenses of the Supreme Court, including all salaries,
allowances and pensions payable to or in respect of the officers and servants of
the Court, shall be charged upon the Consolidated Fund of India, and any fees
or other moneys taken by the Court shall form part of that Fund.

Appointments of officers and servants of the Supreme Court shall be made by

the chief Justice of India or such other judge or officer of the court as he may
direct. The president may require that the appointments are to be made after
consultation with the union public service commission. Subject to the law made
by the Parliament, the condition for the service of the officers and servants of
Supreme Court may be prescribed by the rules made by the Chief Justice of the
Court. Any such rules, so far as they relate to salaries, allowances, leave or
pensions, require the Approval of the President.

Supreme Court Employees Welfare Association v. Union of India23

In this case it emphasised on the importance of Article 146 for the independence

23
(1989) 4 SCC 187 AIR 1990 SC 334.
36
of the Court in discharge of its functions the supreme court has held that the
rules in respect of the salaries etc. of its employees have to be framed by the
Chief Justice of India. If the Chief Justice of India refers the matters related to
pay scales of the Supreme Court employees to the pay commission and pay
Commission’s recommendation is approved by Government of India without
having any rules made by the Chief Justice it will be a violation of the Article
146 (2). The President is free to approve or not to approve the rules framed by
the Chief Justice but if no rules have been made by the Chief Justice in this
regard Article 146(2) is violated. Thus the pay scales for the Supreme Curt
Employees as recommended by the fourth pay Commission and approved by
the Government of India were found incapable to the employees unless and
until appropriate rules have been framed in accordance with provisions of
Article 146(2).

Clause 3 declares that the administrative expenses of the Supreme Court are
charged upon the Consolidated Fund of India.

Article 147: Interpretation

In this Chapter and in Chapter V of Part VI, references to any substantial

question of law as to the interpretation of this Constitution shall be construed as
including references to any substantial question of law as to the interpretation of
the Government of India Act, 1935 (including any enactment amending or
supplementing that Act), or of any Order in Council or order made thereunder,
or of the Indian Independence Act, 1947, or of any order made thereunder.

Article 147 is to be read with the Article 132 of the constitution. Article 132
allows an appeal from a judgement, decree or final order of a High Court, if the
High Court certifies that the case involves a substantial question of law as to the
interpretation of this Constitution used in article 132 or Article 133(2), any
question of law as to interpretation of the Government of India Act, 1935 or any
Order in Council, or Order made thereunder, or of the India Independence Act,
1947, or of any Order made thereunder

INDEPENDENCE OF JUDICIARY:

One of the essential characteristics of a Federal Constitution is the

independence of its judicial organ. Independence of Judiciary is not limited only
to the independence from the executive pressure or influence; it is a wider
concept which takes within its sweep independence from any other pressure and
prejudices. It has many dimensions, viz., fearlessness of other power centres,
economic or political and freedom from prejudices required and nourished by
37
the class to which the Judges belong. Constitution contains provisions for
securing an independent judiciary. These provisions are discussed below:-

1. Appointment of Judges- The judges of the Supreme Court as well as

of 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.
2. Tenure of Office- In this respect, the Constitution of India protects the
Judges of the Supreme Court as well as the High Courts from all political
or personal influences. The Judges cannot be removed from their office,
except by impeachment on specified grounds.
3. Salaries and Allowances of the Judges- The salaries and
allowances of the Judges are determined by Parliament by law. However,
once a Judge is appointed and his salary and allowances determined by
Parliament, these cannot be varied to his disadvantage during the tenure
of his office.
4. Appointment of Staff- The Constitution empowers the Chief Justice
of Supreme Court and the Chief Justice of every High Court, to recruit
their staff and regulate the conditions of service of the officers and
servants appointed in their courts.
5. Expenditure of the Court- The administrative expenses of the
Supreme Court as well as of the High Courts have been declared to be
charged upon the Consolidated Fund of India and States, respectively and
therefore, not subject to vote of the Legislature.
6. 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 retired Judge of the High Court is also prohibited from practising
before a Court where he had been a Judge. A High Court Judge, however,
can after retirement, practise in the Supreme Court or in a High Court in
which he had not been a Judge.
7. Restriction on Discussion in Legislature- No discussion can take
place in the Legislature of a State or in Parliament, with respect to the
conduct of a judge of the Supreme Court or of a High Court, in
discharging of his duties as a Judge. Thus, the Constitution makers have
attached much importance to the independence of the judiciary and they,
therefore, placed them beyond any controversy.
8. Power to Punish for Contempt- The Supreme Court and the High
Courts have been declared as Courts of Record and conferred with power
to punish any person for their contempt. The power to punish for
contempt of itself, is very essential for maintaining impartially and
independence of the Judges.
38
Bibliography
Books referred

1. Prof. Narender Kumar, Constitutional Law of India (Allahabad

Law Agency, Faridabad, Haryana, 8th edn, 2014)
2. JN Pandey, Constitutional Law of India (Central Law Agency,
Allahabad, 21st edn, 1990)
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3. VN Shukla’s Constitution of India by Mahendra P. Singh
(Eastern Book Company, Lucknow, 10th edn 2004)

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