unionJUDICIARY INDIAN LAW

unionJUDICIARY
AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

LAW SCHOOL
Appointment of judges position before 99th amendment of
constitution
Position prior to 99th amendment of constitution. 99th Amendment Act of
2014
 The judges of the supreme court were appointed by the president.

 The chief justice of the supreme court was appointed by the president with the
consultation of such of judges of supreme court and high courts as he deems
necessary for the purpose.
 But on appointing other judges the president would always consult the Chief
Justice of India.
 he might consult such other judges of the supreme court and high courts as he
might deem necessary article 124(2).
 Under 124(2) the president in appointing other judges of the supreme court was
bound to consult the Chief Justice of India.
 But on appointing the Chief Justice of India he was not bound to consult anyone.
The word ‘may’ used in article 124 made it clear that it was not mandatory on him
to consult anyone.
LAW SCHOOL
constitution
 Till 1973 the practice was to appoint the senior most judge of the
supreme court as the Chief Justice of India
 But on 25 April 1973 this practice was suddenly broken by the
government and three senior judges of the supreme court were
superseded which was subjected to severe criticism by the bar and
the general public.
 The government however justified its actions on the ground of
absolute discretion of the president and Recommendation of the
law commission and philosophy of judges to be taken into account
by the executive.

LAW SCHOOL
constitution
Supremacy of the executive-
SP Gupta vs Union of India (AIR 1982 SC 149)
(Judges transfer case – I)
 In this case popularly known as judges transfer case the supreme court unanimously
agreed with the meaning of the term consultation as explained by majority in
Sankalchand Sheth’s case. (AIR 1977 SC 2328)
 Court found according to the language used in article 124 the president was not bound to
act in accordance with such consultation.
 The meaning of the word consultation came from the consideration of the supreme court
in Sankalchand Sheth’s case which was related to the scope of article 222 of the
constitution.
 It was held that the word consultation mean full and effective consultation.
 For a full and effective consultation it is necessary that the three constitutional
functionaries must have for its consideration full and identical fact on the basis of which
they would be able to take a decision.
 The president however has a right to differ from them and take a contrary view.
Consultation does not mean concurrence and President is not bound by it.

LAW SCHOOL
constitution
SP Gupta vs Union of India
 The meaning of the word consultation in 124(2) is the same as the meaning
of the word consultation and article 212 and article 222 of the constitution.
 The only ground on which the decision of the government can be
challenged is that it is based on mala-fide and irrelevant consideration. i.e.
When constitutional functionaries Express the opinion against the
appointment.
 This means that the ultimate power to appoint judges is vested in the
executive from whose dominance and subordination it was thought to be
protected.
[The supreme court had abdicated its power by ruling that constitution
functionaries had merely a consultative role and that power of the
appointment of judges solely and exclusively vested in the central
government.]

LAW SCHOOL
constitution
Judicial Supremacy.
Supreme Court advocates on record Association vs Union of India.
[(1993) 4 SCC 441] (Judges transfer case-II.)
 In this Case nine judge bench of the supreme court by a 7:2 majority overruled its
earlier judgement in the judges transfer case-I and held that in the matter of
appointment of the judges of the supreme court and high courts the Chief Justice of
India should have primacy.
 The matter was brought before through a PIL writ petition filed by an advocate of
the supreme court seeking relief of filling up vacancies in the higher judiciary.
 The appointment of Chief Justice of India shall be on the basis of seniority.
 The court laid down detailed guidelines governing appointment and transfer of
judges and held that the greatest significance should be attached to the view of the
Chief Justice of India formed after taking into account the reviews of the two
senior most judges of the supreme court.

LAW SCHOOL
constitution
(cont.)
 Justice Verma who delivered the majority judgement along with justice AN
Ray J, AS Anand J, SP Bharucha J. observed-
 “the executive element in the appointment process has been reduced to
minimum and the political influence is eliminated. It is for this reason that
the word consultation instead of Concurrence was used in the constitution but
that was merely to indicate that absolute discretion was not given to anyone,
not to the Chief Justice of India as an individual, much less to the executive.”
 A M Ahmadi J. and M N Puunchi J delivered the dissenting judgments and
said that if primacy is given to the Chief Justice of India the view of other
constitutional functionaries would become redundant.
 The majority held that no appointment of any judge to the supreme court or
any High Court can be made unless it is in conformity with the opinion of
Chief Justice of India. Only in exceptional cases and for strong reasons the
names recommended by chief justice may not be made.

LAW SCHOOL
constitution
(cont.)
Appointment of Chief Justice of India:
 The majority held that the appointment to the office of Chief Justice of India
should be made on the basis of seniority that it is the senior most judge
considered suitable to hold office be appointed as the Chief Justice of India.
 Guidelines:
- Individual initiation of the high constitutional functionaries in the matter of
judges appointments reduced to minimum.
- It gave primacy to the Chief Justice of India but put a rider that he must
consult his two colleagues.
- Constitutional functionaries must act collectively in judicial appointments.
- Chief Justice of India was given the final say in transfer of chief justice and
judges of high courts.

LAW SCHOOL
constitution
(cont.)
Appointment of Chief Justice of India
- Transfer of chief justice and judges of High Court could not be challenged
in courts.
- Appointment of the Chief Justice of India by seniority.
- No judge could be appointed by the union government without consulting
the Chief Justice of India.
- Fixation of the strength and the High Court was justiciable

LAW SCHOOL
constitution
Sole opinion of Chief Justice of India without following consultation
process not binding on government.-
Re Presidential reference. (AIR 1999 SC 1)
(Appointment and transfer of judges
case-III)
 In this case and nine judge bench of the supreme court unanimously held
that the recommendation made by Chief Justice of India on the appointment
of judges of the supreme court and high courts without following the
consultation process are not binding on the government.
 The court also widened the scope of consultation process.
 The court held that the consultation process to be adopted by the Chief
Justice of India required consultation of plurality of judges.
 The sole individual opinion of the Chief Justice of India does not constitute
consultation within the meaning of the said article.

LAW SCHOOL
constitution
(cont.)
 The majority held that in regard to the appointment of judges to the supreme
court under article 124(2) the Chief Justice of India should consult
collegium of 4 senior most judges of the supreme court and made it clear
that if two judges give adverse opinion the chief justice should not send the
recommendation to the government.
 The collegium must include the successive Chief Justice of India.
 The opinion of the collegium must be in writing and the Chief Justice of
India should send the recommendation to the president along with his own
recommendations.
 The Recommendation of the collegium should be based on a consensus and
unless the opinion is in conformity with that of the Chief Justice of India no
recommendation is to be made.

LAW SCHOOL
constitution
(cont.)
 In regard to the appointment of judges of the high courts the court held
that the collegium should consists of the Chief Justice of India and any two
senior most judges of the supreme court.
 In regard to transfer of High Court judge the court held that in addition to
the collegium of four judges, the Chief Justice of India is required to consult
chief justices of the two High Court (one from which the judge is being
transferred and the other receiving him.)
 The appointment of judges of higher courts can be challenged only on the
ground that the consultation power has not been in conformity with the
guidelines laid down in the 1993 judgement and as per the opinion given
in 1999 decision that is without consulting 4 senior most judges of the
supreme court.

LAW SCHOOL
constitution
(NJAC ) National judicial appointment commission.
 In first judges transfer case SP Gupta versus Union of India Justice
Bhagwati had suggested for the appointment of a judicial Commission on
the line of Australian judicial Commission.
 The Law Commission suggested in 1987 that National Judicial Service
Commission should have the final say in matters of selection promotion
and transfer of judges.
 A bill was introduced in Lok Sabha for setting up new judicial commission
in 1990 empowering the President to constitute a high-level judicial
Commission for making recommendation for the appointment of a judge to
the supreme court other than Chief Justice of India, Chief Justice of High
Court and to the transfer of judges from one high court to another.
 However the same Amendment Bill lapsed after The dissolution of Lok
Sabha.

LAW SCHOOL
Appointment of judges -position after 99th amendment of
constitution
Position after 99th amendment of constitution. 99th Amendment Act of 2014
99th amendment act of 2014 amended article 124, 127, 128 and also it inserted articles
124 A, 124B , 124C.
Supreme Court advocates on record Association vs Union of India
(2015) AIR SCW
5457.
 The supreme court by its order declared Constitution 99th Amendment Act 2014
and national judicial appointment Commission act 2014 unconstitutional and void.
 The system of appointment of judges to the supreme court, chief justices and
judges to the high courts and transfer of chief justices and judges of high court
from one high court to another as a existing prior to the Constitution 99th
Amendment Act called the collegium system to be operative.
 The court also ordered to list the case to consider introduction of appropriate
measures if any for an improved working system of the collegium system.
 All the five judges give their separate judgments, four judges held the amendment
unconstitutional. Justice Chalemeswar upheld the amendment.
LAW SCHOOL
Appointment of judges position after 99th amendment of
constitution
(cont.)
Justice Jagdish Singh khehar-
“Fit to hold the office” –
 Section 5 sub clause 1 of the N J A C act 2014 provided the senior most
judge of the supreme court to be appointed Chief Justice of India subject to
the condition of being considered fit.
 The supreme court held it was not within the realm of parliament to subject
the process of selection of judges to the supreme court as well as the
position of Chief Justice of India in uncertain and ambiguous terms.
 It was imperative to express the clear parameters of the term ‘fit’ with
reference to the senior most judge of the supreme court under Section 5 of
the act.
 The term fit can be tailor made to choose a candidate for below in the
seniority list.

LAW SCHOOL
constitution
(cont.)
Seniority-
 Court struck down Section 5(2) of NJAC act. It held undoubtedly postulating seniority in the
first provision under Section 5(2) of the act it is a laudable object and if seniority is to be
enmeshed with ability and merit the most ideal approach can be seen to have been adopted.
 But what appears on paper may sometimes not be correct in practice. As per experience the
judges to every High Court are appointed in batches, each batch may just have two or three
appointees or sometimes have event 10 or more individuals.
 A group of judges to one high court will be separated from the lot of judges appointed to
another high court by just a few days or by just a few weeks and sometimes bye just a few
months.
 In the all India seniority of judges the complete batch appointed on the same day to one high
court will be placed in a running serial order above the judges appointed in another high
court , just after few days for weeks or months.
 Judges appointed later will have to be placed en mass below the earlier batch in seniority.
 If appointment to the judges of the supreme court is to be made on the basis of seniority as a
primary consideration then the earlier batch would have priority in the same matter of
elevation to the supreme court
LAW SCHOOL
constitution
(cont.)
 And hypothetically if the batch had then judges appointed together to a particular
High Court and if all of them have proved themselves able as High Court Judges
they will have to be appointed to the supreme court till the entire batch is
exhausted.
 Judges from the same High Court in the above situation where the best comprises
of 10 judges will occupy a third of the total judge positions in the supreme
court.
 This would be clearly unacceptable for the reasons indicated by the petitioners that
the mandate contained in the first provision under Section 5(2) of the act clearly
breached the convention of regional representation in the supreme court.
 The regional representation being one of the Federal characters of distribution
of power one of the recognized basic structures could not have been overlooked.
 The convention is vague to maintain regional representation. The consideration of
judges on the basis of their seniority by treating the same as primary consideration
would adversely affect the present convention of ensuring representation from as
AMISH
many ABDULLAH,
state ASST.
high courts as PROF, SYMBIOSIS
is possible.
LAW SCHOOL
constitution
(cont.)
Veto power to any two members of N J A C-
 section 6 (6) of NJAC act giving power of Veto to any two members of the NJAC
would adversely impact primacy of judiciary in the matter of the selection and
appointment of judges to the higher judiciary.
 The two eminent members cannot be left to the free will and choice of the
nominating authorities irrespective of high constitutional positions held by them.
 Specially so because the two eminent persons comprise of one third strength of
NJAC and double of that political executive component and as such will have a
supremely important role in the decision making process of NJAC.
 Article 124 (1) (d) is therefore liable to be set aside and struck down for having
not laid down the qualifications of eligibility for being nominated as eminent
persons and for having left the same vague and unidentified.
 Section 5 (2) and section 6 (6) also breached the basic structure of the
Constitution with reference to independence of Judiciary and separation of
power section 5(2) and 6(6) are there four Ultra wires of the constitution.
LAW SCHOOL
constitution
(cont.)
Justice Kurian Joseph-
 He added that the parliament has no power to gerrymander the constitution.
 The Constitution 99th Amendment impairs the structural distribution of
powers and hence it is impermissible.
 Present collegium system lacks transparency acceptability and objectivity.
 The trust deficit has affected the collegium system.
 The delegation certainly call for a deep introspection as to whether the
institutional Trusteeship has kept up the Expectations of the framers of the
Constitution, But is a curable situation.
“As a result of this decision upheld with justice Madan and Justice Kurian
Joseph and Justice Adarsh Kumar Goel, the position as it stood prior to
Constitution 99th Amendment Act of 2014 shall continue to be the legal
position because the aforesaid decision renders 99th amendment
nugatory”
LAW SCHOOL
constitution
Guidelines for improvement of collegium system.
Supreme Court advocates on record Association vs Union of India
AIR2016 SC 117.
-----------------------------------------------------------------------------------------------------
• The Supreme Court struck down on 16th October 2015 the Constitution 99th
Amendment Act for the appointment of judges by N J A C act.
• The earlier collegium system was criticized for opacity and the collegium system was
revived.
• A committee was formed to compile the suggestions for curing the collegium system,
private individuals were also invited for their suggestions.
-----------------------------------------------------------------------------------------------------
 The court give following directions for the committee-
 The Government of India may finalize the existing Memorandum of procedure by
supplementing it in consultation with the Chief Justice of India.
 The Chief Justice of India will take a decision based on the unanimous view of the
collegium comprising the four senior most judges of the supreme court.
 They shall take the following factors into consideration-
LAW SCHOOL
constitution
(cont.)
 They shall take the following factors into consideration-
Eligibility criteria-
 The Memorandum of procedure may indicate the eligibility criteria such as the
minimum age for the guidance of the collegium both at the level of the high court
and the supreme court for appointment of judges, after inviting and taking into
consideration the views of the state government and the Government of India as
the case may be from time to time.
Transparency in the appointment process-
 The eligibility criteria and the procedure as detailed in the Memorandum of
procedure for the appointment of judges ought to be made available on the website
of the court concerned and on the website of the department of justice of the
Government of India.
 The Memorandum of procedure may provide for an appropriate procedure for
minuting the discussions including recording the dissenting opinion of the judges
in the collegium while making provision for the confidentiality of the minutes
consistent with the requirement of the transparency in the system of appointment
of AMISH
judges.ABDULLAH, ASST. PROF, SYMBIOSIS
LAW SCHOOL
constitution
(cont.)
Secretariat-
 In the interest of better management of the system of appointment of judges, the
Memorandum of procedure may provide for the establishment of a secretariat for each
High Court and the supreme court and prescribe its functions duties and responsibilities.
Complaints-
 The Memorandum of procedure may provide for an appropriate mechanism and
procedure for dealing with Complaints against anyone who is being considered for
appointment as a judge.
Miscellaneous-
 The Memorandum of procedure may provide for any other matter considered
appropriate for ensuring transparency and accountability including interaction with the
recommended by the collegium of the supreme court without sacrificing the
confidentiality of the appointment process.
 The court made it clear that the guidelines mentioned above are only broad suggestions
for consideration and supplementing the Memorandum of procedure for the Faithful
implementation of the principles laid down in the second judges case and the third
judges case.
LAW SCHOOL
Appointment of judges
Qualification -
124(3)- A person shall not be qualified for appointment as a Judge of the Supreme
Court
 unless he is a citizen of India and—
 has been for at least five years a Judge of a High Court or of two or more such
Courts in succession; or
 has been for at least ten years an advocate of a High Court or of two or more such
Courts in succession; or
 is in the opinion of the President, a distinguished jurist.

LAW SCHOOL
Tenure and removal –
 Judge of the supreme court shall hold office until he attains the age of 65 years.
 The age of judge of the supreme court shall be determined by such authorities and in
such manner as Parliament may by law provide -article 124 (2A).
RESIGNATION-
 A judge may however resign his office by writing to the president -article 124 (2)
(a).
 Under clause (b) it is not clear -
Whether resignation said to president becomes final immediately or it becomes

effective only after accepted by the president or can it be withdrawn before it is
accepted by the president?
 This question was raised before the supreme court in the case of Union of
India vs Gopal Chandra Mishra.

LAW SCHOOL
Union of India vs Gopal Chandra Mishra. (AIR1978 SC

694.)
 The case is based on Article 217 relating to the resignation of High Court
judge, it applies to article 124 also because article 124 is in similar terms.
 No contractual/statutory obligation: The court has held that an absence of a
legal contractual or constitutional base, a prospective resignation be
withdrawn before it becomes effective when it operates to terminate the
employment of the office tenure of the resignation.
 Resignation takes place when a judge of his own volition chooses to
severe his connections with his office.
(cont.)

LAW SCHOOL
Union of India vs Gopal Chandra Mishra. (AIR1978 SC

694.)
(cont.)
 If in terms of his own writing he resigns in present the resignation
terminates in office tenure forthwith and cannot therefore be withdrawn or
revoked thereafter.
 Future date: But if by such writing he chooses to resign from a future date
the act of resigning is not complete because it does not terminate the tenure
before such date and the judge can at time before the arrival of that
prospective date on which it was intended to be effective withdraw it
because the Constitution does not bar such withdrawal.

LAW SCHOOL
Removal of judges
Removal of Judges (~impeachment) -Article 124(4)(5).
 Judges enquiry act 1968- The Parliament has passed judges enquiry act
1968 under which the procedure for investigation into misbehavior or
incapacity of a judge shall be done by a committee constituted by speaker of
the Lok Sabha or the chairman of the Rajya Sabha as the case may be.
 Can be initiated in either House- If the speaker or chairman admit the
motion after the same has been passed by at least 100 members in Lok
sabha and at least 50 members in case of Rajya Sabha, as the case may be,
after Consulting such persons as he thinks fit and after considering such
materials if any are available to him.
 Constitution of the Committee-The act makes the provision of a committee
consisting of three members-
- Chief justice of Supreme Court or any other judge of Supreme Court
- Chief Justice of any High Court and
- A well renowned distinguished jurist.

LAW SCHOOL
Removal of judges
 IF Introduced on the same day in both the houses- If the notices of motion are
given the same day in both houses the committee shall not be constituted unless
it has been admitted in both the houses and then the committee shall be
constituted jointly by the speaker and the chairman both and shall cause the
report to be laid before both the houses.
 Charges- The committee shall frame definite charges against the judge on the
basis of which investigation is to proceed and the judge shall be given a
reasonable opportunity of presenting his written statement and also hearing and
cross examining witnesses.
 If Guilty-If the report submitted by the committee find the judge guilty, further
proceedings shall be taken in accordance with the provision of clause124(4) or
in accordance with that clause read the article 218.
 Same session- The misbehavior or incapacity shall be Deemed to have been
proved and an address for removal of the judge shall be presented to the
president by House of Parliament in the same session in which the motion has
been adopted.
(The committee has been given the powers of the Civil Court for this purpose.)
LAW SCHOOL
Removal of judges
 Grounds- The Judge may be removed from his office by an order of the
president only on Grounds of proved misbehavior or incapacity.
 Special majority- The address must be supported by a majority of total

membership of that house and also by a majority of not less than two third
of the members of that house present and voting [article 124(4).]

LAW SCHOOL
Removal of judges
K. Veeraswami vs. UOI [(1991)3 SCC 655]

 On the questions:
- (1) whether a Judge of a High Court or of the Supreme Court is a 'public servant' within
the meaning of s. 2 of the Prevention of Corruption Act, 1947;
- (2) whether a Judge of the High Court including the Chief Justice, or a Judge of the
Supreme Court can be prosecuted for an offence under the Prevention of Corruption Act,
1947; and
- (3) who is the competent authority to remove a Judge either of the Supreme Court or of
the High Court from his office in order to enable that authority to grant sanction for
prosecution of the Judge under the provisions of s. 6 of the Prevention of Corruption Act,
1947.
 Dismissing the appeal, this Court, HELD: (Per Majority--Ray, Shetty, Sharma and
Venkatachaliah, JJ).
 A Judge of a High Court or of the Supreme Court is a 'public servant' within the meaning
of s. 2 of the Prevention of Corruption Act, 1947.
 Prosecution of a Judge of a High Court, including the Chief Justice, or a Judge of the
Supreme Court can be launched after obtaining sanction of the competent authority as
envisaged by s. 6 of the
AMISH ABDULLAH, Prevention
ASST. of Corruption Act.
PROF, SYMBIOSIS
LAW SCHOOL
Removal of judges
K. Veeraswami.J.-1993
 K. Veeraswami , a SC judge for the first time was tried in Impeachment for
misbehaviour as to spending extravagantly on renovating official home.
 Motion was initiated in Lok Sabha with 100 notices by the members, and
the committee constituted held the Judge guilty and the matter was now
given to parliament for voting and discussion.
 In Lok sabha the motion was not able to survive as it failed to secure the
majority required.
Soumitra Sen.J.-2011
 Justice Soumitra Sen of Calcutta High Court in 2011 avoided the ignominy
of becoming the first judge to be impeached by Parliament by tendering his
resignation.
 After the Rajya Sabha had passed the motion making him the first judge to
have been impeached by the Upper house of parliament for misconduct.
 Justice Sen was found guilty of misappropriating Rs.33.23 lakh under his
custody as a court appointed receiver in the capacity as a lawyer and
Misrepresenting
AMISH ABDULLAH,facts
ASST.before Calcutta court in a 1983 case.
PROF, SYMBIOSIS
LAW SCHOOL
Removal of judges
P D Dinakaran.J.-2010.
 Justice P D Dinakaran, Chief Justice of Sikkim High Court against whom the
Rajya Sabha chairman had set up judicial panel to look into allegations of
corruption resigned in July 2011 before the impeachment proceedings could
be initiated against him.
 Corruption land grab and abuse of judicial office were among the 16 charges
framed against justice Dinakaran.
J B Pardiwala.J.-2015
 In 2015 a group of 58 Rajya Sabha MPs moved and impeachment notice
against justice JB Pardiwala of the Gujarat High Court for his objectionable
remarks on the issue of reservation.
 MPs in their petition set justice for Pardiwala comments on reservation for
scheduled castes and Scheduled Tribes while giving a ruling in a case against
Patidar leader Hardik Patel were objectionable.
 Mr. Hamid Ansari was the Vice President who took the notice from the MPs,
Pardiwala.J scraped the words used in his judgement with were conatained to
beAMISH
objectionable
ABDULLAH,against the reservations
ASST. PROF, SYMBIOSIS policy.
LAW SCHOOL
Removal of judges
Dipak Misra CJI.-2018

 On 20 April 2018, seven opposition parties submitted a petition seeking
impeachment of Dipak Misra to the Vice-President Venkaiah Naidu, with
signatures from seventy-one parliamentarians in Rajya Sabha.
 Five allegations for which the CJI was tried are-
1. The facts and circumstances relating to the Prasad Educational Trust case show
prima facie evidence suggesting that Chief Justice Dipak Misra may have been
involved in the conspiracy of paying illegal gratification, which at least
warrants a thorough investigation.
2. That Chief Justice Dipak Misra dealt, on the administrative as well as judicial
side, with a writ petition which sought investigation into a matter in which he
too was likely to fall within the scope of investigation since he had presided
over every bench which had dealt with the case and passed orders in the case
of Prasad Educational Trust, and thus violated the first principle of the Code of
Conduct for judges.
3. That Chief Justice Dipak Misra appears to have antedated an administrative
order dated 6 November 2017, which amounts to a serious act of
forgery/fabrication.
LAW SCHOOL
Removal of judges
Dipak Misra CJI.-2018

4. That Chief Justice Dipak Misra acquired land when he was an advocate,
by giving an affidavit that was found to be false and, despite the orders of
the ADM cancelling the allotment in 1985, surrendered the said land only
in 2012 after he was elevated to the Supreme Court.
5. That Chief Justice Dipak Misra has abused his administrative authority as
master of roster to arbitrarily assign individual cases of particular
advocates in politically sensitive cases to select judges in order to
achieve a predetermined outcome.
 On 23 April 2018, the petition was rejected by Vice-President Venkaiah

Naidu, primarily on the basis that the complaints were about the internal
administration and not misbehaviour, and that thus impeachment would
seriously interfere with the constitutionally protected independence of the
judiciary.

LAW SCHOOL
Jurisdiction-
Court of record-
 Article 129 makes the supreme court a court of record.

“The Supreme Court shall be a court of record and shall have all the
powers of such a court including the power to punish for contempt of
itself.”
 A court of record is a court whose records are admitted to be of evidentiary

value and they are not to be questioned when they are produced before the
court.
 Once upon Court is made a court of Record, its power to punish for
contempt necessarily follows from that position.

LAW SCHOOL
Jurisdiction-
According to section.2 of contempt of courts Act 1971-
- contempt of court includes both Civil and criminal contempt.
- Civil contempt means willful disobedience to any judgement, decree,
direction order, writ or other process of a court or
willful breach of an undertaking given to a court.
- Criminal contempt means the publication weather by words spoken or
written by signs or by visible representation or otherwise of any matter for
doing of any act whatsoever which –
(a) Scandalize or tends to scandalize, or lowers or tends to lower the
authority of any Court, or,
(b) Prejudices or interfere or tends to interfere with the due course of any
judicial proceeding, or,
(c) Interfere or tends to interfere with or obstructs or tends to obstruct the
administration of justice in any other manner.

LAW SCHOOL
Jurisdiction-
***[
 The offence of “scandalising the court” continues in India even though it
was abolished as an offence in England and Wales long ago.
 On March 8, 2018, the Department of Justice wrote to the Law

Commission of India, asking it to examine an amendment to the Act to nix
“scandalising the court” as a ground for contempt and restrict contempt to
only “willful disobedience” of directions/judgments of the court.
 The Supreme Court in 2018 published a report that noted that 568 criminal
contempt cases and 96,310 civil contempt cases were found pending in the
High Courts.
 In the Supreme Court, as of April 10, 683 civil contempt cases and 15
criminal contempt cases have been shown as pending.

LAW SCHOOL
Jurisdiction-
 But the Law Commission has submitted a report stating that there is no
point “tinkering” with the 1971 Act.
 The statute, it said, only lays down the procedure in contempt cases.
 “The powers of contempt of the Supreme Court and High Courts are
independent of the Act 1971,” the report of the Commission said.
 The contempt powers of the higher courts are drawn from the
Constitution itself.
 The Commission said that “to delete the provision relating to ‘criminal
contempt’ inter alia ‘scandalising of courts’ will have no impact on the
power of the Superior Courts to punish for contempt (including criminal
contempt) in view of their inherent constitutional powers, as these powers
are independent of statutory provisions”.
 Additionally, Article 142(2) enables the Supreme Court to investigate and
punish any person for its contempt.
]***
LAW SCHOOL
Jurisdiction-
A judge or magistrate or other person acting judicially shall be liable for
contempt of his own Court or of any other court in the same manner as any
other individual is liable. (sec. 16 CCA 1971)
EXCEPTION-
 However this section shall not apply to any observations or remarks made by
him regarding a subordinate court in an appeal or revision pending before him.
 Following acts for publications will not amount to contempt-
- Innocent publications and its distribution.
- Fair and accurate report of judicial proceedings.
- Fair criticism of judicial act.
- Complaint made in good faith against presiding officers of subordinate courts
(below high court).
- Publication of fair and accurate report of a judicial proceeding before a court
sitting in camera.
PENALITY- Contempt of Court may be punished with simple imprisonment for a
term which may extend to 6 months or with fine which may extend to 2000
rupees or with both.
LAW SCHOOL
Jurisdiction-
Innocent publications and its distribution:-
- Publication of any matter in any form which has the tendency to interfere or
obstruct the course of justice in any civil or criminal proceeding if; it is
published while the case is pending but the person doing so does not have
any reasonable ground to believe so, if the publication is made after
completion of the case and if the person distributing such publication didn’t
have any reason to believe that it contain any matter as aforesaid.
Camera Proceedings exceptions:-
Publication of information relating to proceeding in chambers or in camera
is contemptuous if;
- It is contrary to the provisions of any enactment;
- The court expressly prohibits the such publication;
- The court sits in chambers or in camera for reason connected with public
order or the security of the State; and the information relates to a secret
process, discovery or invention which is an issue in the proceedings.

LAW SCHOOL
Jurisdiction-
The Jurisdiction of Supreme court under article 129 is independent of courts act-
 The jurisdiction of Supreme Court is independent of the provisions of The
Contempt of courts Act 1971.
 If there is not proper compliance of the provisions, the Contempt of court act
would not therefore take away the constitutional powers of the supreme court
under article 129.
Supreme Court’s power to punish for the Contempt of itself as well as subordinate
courts -
Delhi Judicial Service Association v. state of Gujarat (1991) 4 SCC406
(to protect itself and subordinates)
 In this case it has been held that under article 129 the Supreme Court has power to
punish a person for the Contempt of itself as well as of its subordinate courts.
 The expression “including” extends and widens the scope of power.
 The plain language of article 129 clearly indicates that the supreme court as a
court of Record has power to punish for contempt of itself and also something
else which would fall within the inherent jurisdiction of the court of record.
 The inherent power is necessarily there to safeguard and protect the subordinate
Judiciary which forms
AMISH ABDULLAH, thePROF,
ASST. verySYMBIOSIS
backbone of administration of Justice.
LAW SCHOOL
Jurisdiction-
Mohammed Aslam v. Union of India (1994) 6 SCC 442
(Minister, official may also be held guilty)
 In this case Supreme Court held that the chief minister of Uttar Pradesh was guilty
of contempt of court for violating the order of the court not to allow any permanent
structure on the disputed land.
 The Chief Minister had given a solemn assurance to the National Integration Council
and also to the supreme court that would not allow any permanent construction on
the land.
 The chief minister took the defence that the construction was done by the
congregation of Sadhus and any attempt to prevent the work would have created a
violent situation endangering the structure itself.
 The court however took the view that the assurances given by the Chief Minister
before the NIC were incorporated as his own undertaking to the supreme court. He
did not prevent the construction work by Sadhus.
 The court said that although the state of UP was guilty of contempt, a Minister or
officer of government is in his official capacity, or if there is personal element in
contributing to contempt in his personal capacity, is liable to contempt.
 The court awarded a token sentence of one day and a fine of rupees 2,000 to be paid
within
AMISH2 months.
ABDULLAH, ASST. PROF, SYMBIOSIS
LAW SCHOOL
Jurisdiction-
Subrata Roy versus Union of India AIR
2014 SC3241
[Courts unlimited power to compel obedience and compliance of its orders]
 In this case the supreme court while confirming the orders passed by the
SEBI had directed the petitioner and other directors of SIRECL the refund
to the investors most of whom were petty peasants, laborers, blacksmiths ,
woodcutters and other such like artisans making investments ranging from
rupees 2,000 to rupees 3000 the total amount of which swelled up to Rupees
36.608 crores.
 Beside close to 40 hearings they did not comply with the judicial orders and
remained Adamant and steadfast and made only one deposit of rupees 5120
crores with SEBI for refund to investors.
 The court directed The petitioners to be arrested and detained till the
satisfaction of the liability.
 The court held non-compliance of the orders of the supreme court would
dislodge the cornerstone maintaining the equilibrium and equanimity in the
governance of the country.
LAW SCHOOL
Jurisdiction-
Subrata Roy versus Union of India AIR
2014 SC3241
[Courts unlimited power to compel obedience and compliance of its orders]
(Cont.)
 The court has unlimited power and in fact the sacred obligation to compel
obedience and observance of its orders.
 The provision of article 129 and 142 of the Constitution west in the supreme
court the power to persuade and if necessary compel obedience and
observations of the judicial order.
 The arrest and detention is only to coerce the compliance. The liability to
pay would stand discharged only by actual payment of the amount due.
Remaining in jail would not discharge the liability to pay

LAW SCHOOL
Jurisdiction-
Re Prashant Bhushan (CRL.) NO.1 OF 2020
In the judgment dated 14.8.2020 the Court found both the tweets of Mr. Prashant Bhushan
factually false, malicious and scandalous and amounting to criminal contempt sentencing
him to pay a fine Rs. 1, failing which he would be sentenced to 3 months in jail and be
debarred from practicing in the apex court for 3 years.
 Regarding first tweet, the Court said that making such wild allegation thereby giving an
impression, that the CJI is enjoying riding an expensive bike, while he keeps the SC in
lockdown mode and thereby denying citizens their fundamental right to access justice, is
undoubtedly false, malicious and scandalous.
 It has the tendency to shake the confidence of the public at large in the institution of judiciary
and the institution of the CJI and undermining the dignity and authority of the administration
of justice.
 The Court did not accept the contention of Mr. Prashant Bhushan, that the said statement was
a bona fide criticism made by him on account of his anguish of non functioning of the courts
physically.
--------------------------------------------------------------------------------------------------------------
Tweet-1- When historians in future look back at the last six years to see how democracy has been
destroyed in India even without a formal Emergency, they will particularly mark the role of the
Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”
Tweet-2- CJI rides a 50 lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur, without
a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their
AMISH ABDULLAH,
fundamental ASST.
right to access PROF, SYMBIOSIS
Justice!”
LAW SCHOOL
Jurisdiction-
Original Jurisdiction- Art.131-
 Supreme Court has original jurisdiction in-
− any dispute Between the Government of India and one or more States
[U vs S1+S2]
− Between the Government of India and any state or States on one side
and one or more States on the other [U + S1 vs S2]
− Between two or more States. [S1 vs S2]
 The supreme court and its original jurisdiction can not entertain any
suits brought by private individuals against the Government of India.
 The dispute relating to original jurisdiction of the court must involve a
question of law or fact on which the existence of legal right depends.

LAW SCHOOL
Jurisdiction-
State of Karnataka vs Union of India (1978) 11 SCJ 190
 In this case plaintiff- state of Karnataka filed suit under article 131 of
the constitution for declaration that the appointment of commission of
enquiry Act 1952 was illegal and Ultra wires on the ground that
commission of enquiry act 1952 did not authorise the central
government to constitute such a Commission in regard to matters falling
exclusively within the sphere of state legislative and executive powers
 That if the provisions of the act did so empower they are (C-1)Ultra
wires of the provision of the Constitution as well as the federal
structure implicit and accepted as an inviolable basic feature of
constitution.
 The defendant- Union of India raised a preliminary objection that the
enquiry was against the chief minister and 13 other ministers as
individuals and not against the state of Karnataka the suit under article
131 was therefore (C-2)not maintainable.
LAW SCHOOL
Jurisdiction-
The supreme court by a majority of 4:3 Held-
 that plaintiff suit was (C-1)maintainable.
 The Union of India acting through the central government could be said to
represent the whole of the people of each individual state and their interest.
 When difference arise between the representatives of the state and those of the
whole people of India on questions of interpretation of the constitution-
; Beg CJ said :
 that it appears to be too technical an argument to be accepted that a suit does
not lie under article 131 of the constitution.
 It is true that there is distinction between the state and the state government.
 But it cannot be accepted that any action or incapacity of the government may
not affect the state and the state would not be interested in it.
 There is close relationship between the state and the state government. Any
action which affects the State government or the ministers in their capacity as
ministers would raise a matter in which the state would be concerned.
AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL
Jurisdiction-
 The act of minister are acts of the state.
 It is not necessary under article 131 that the plaintiff should have some
legal right off his own to enforce.
 It only requires that the dispute must be one which involves a question
on which the existence of legal right depended.
 The plaintiff must of course be a party to the dispute and obviously it
cannot be a party to the dispute unless it is affected by it.
 The state has sufficient interest to maintain a suit under article 131
because the action of the central government against the state affects the
interest of the ministers who exercise its powers.

Jurisdiction-
 As regards the (C-2)contention of ultra wires the supreme court held that the
appointment of commission of enquiry against the chief minister and other
ministers of the state under section 3 of the above Act (C-2)was valid and did not
affect the federal structure as implicit in the basic structure of the constitution.
 In democratic countries the statue can provide for enquiries of the kind which are
meant to be conducted under the commission of enquiry act.
 The object of the act is to enable the machinery of the democratic government to
function more efficiently and effectively.
 It could hardly be construed as an act meant to thwart method of government.
 The kind of Federation established in India has a strong unitary bias with power
given to Central Government of supervision in certain circumstances of state
government.
 Hence it cannot be said that the centre can take no action which results in
interference with governmental functions of the state government.
 The central government has power under article 356 to order and enquiry for the
purpose of the satisfaction required by article 356
Jurisdiction-
Union of India vs State of Rajasthan (1984) 4 SCC 238
 In this case it has been held that a state Suit against the Union of India for recovery
of damages under the railway act is not a dispute falling under article 131(a) and
therefore not maintainable.
 The supreme court jurisdiction under article 131 is not attached to settle ordinary
dispute of commercial nature between the state and the Union of India.
Original jurisdiction of Supreme Court however does not extend to the following
matters-
 The jurisdiction of Supreme Court cannot extend to a dispute arising out of any
Treaty, agreement, Covenant, engagement, Sanad or other similar instrument which
was executed before the commencement of the constitution and continues to be in
operation or which provides that the jurisdiction of the supreme court shall not
extend to such a dispute.
 Under article 264 Parliament may by law exclude the jurisdiction of the supreme
court in disputes with respect to the use distribution or control of water of any
interstate river or river valley.
 Matters referred to finance commission- article 280.
 The Adjustment of certain expenses between the Union and State- article 219
Jurisdiction-
Enforcement of fundamental rights-Art.32-
 Article 32 confers original jurisdiction of the supreme court to enforce
fundamental rights.
 Under article 32 every citizen has a right to move the supreme court by
appropriate proceedings for the enforcement of the fundamental rights.
 The supreme court is given power to issue directions or orders for its
including writs in the nature of habeas corpus, mandamus, prohibition,
certiorari which may be appropriate.
 Only the Fundamental Rights guaranteed by the Constitution can be
enforced under Article 32 and not any other right like non-fundamental
constitutional rights, statutory rights, customary rights and so on.
 Article 32 can only be invoked when legislation or executive order directly
infringe any of the fundamental rights. Article 32 cannot be invoked to
simply to determine the constitutionality of an executive order or
legislation.
 Rights under Article 32 cannot be suspended except under procedure
established by article 359.
Jurisdiction-
 Article 32 can only be invoked to get a remedy for violation of

fundamental rights enshrined under part III of the constitution (Article 12-
35).
In other words, it cannot be invoked for the enforcement of legal rights or
other constitutional rights.
 Supreme Court’s jurisdiction under article 32 is original but not exclusive.

It is concurrent with the jurisdiction of the high court under Article 226.
It means in case of violation of fundamental rights a person has the option
to move High Court or directly to the Supreme Court.
 Supreme Court may not act under article 32 if the party has already
exercised its rights under article 226 i.e. writ application is being heard at
High Court.

LAW SCHOOL
Jurisdiction-
Habeas Corpus
 It is a Latin term which literally means ‘to have the body of’.
 It is an order issued by the court to a person who has detained another
person, to produce the body of the latter before it.
 The court then examines the cause and legality of the detention.
 It would set the detained person free if the detention is found to be illegal.
Thus, this writ is a bulwark of individual liberty against arbitrary detention.
 It can be issued against both public authorities as well as private
individuals.
 Limitations: The writ is not issued where the: (a) detention is lawful, (b)
the proceeding is for contempt of a legislature or a court, (c) detention is by
a competent court, and (d) detention is outside the jurisdiction of the
court. [ie. A particular H.C.]
 Habeas Corpus is rendered ineffective if the detenu is produced before
Judicial Magistrate.

LAW SCHOOL
Jurisdiction-
Mandamus:
 It literally means ‘we command’.
 It is a command issued by the court to a public official asking him to perform his
official duties that he has failed or refused to perform or has wrongfully performed.
 Examples- For every action having a legal authorization
 Asking the State to consult Gram Sabha before felling of Trees in certain areas
 Timely payment of Widow pensions
 It can also be issued against any public body, a corporation, an inferior court, a
tribunal or government itself [i.e. not only against officers] for the same purpose.
 Before the issue of the writ of Mandamus, the petitioner has to prove that he has a
right to enforce public duty in his favor. i.e. petitioner’s legal rights must be
involved
 The writ of mandamus cannot be issued:
 against a private individual or body;
 to enforce departmental instruction that does not possess statutory force;
 when the duty is discretionary and not mandatory;
 to enforce a contractual obligation;
 against the president of India or the state governors; and
 against the chief justice of a high court acting in a judicial capacity.
LAW SCHOOL
Jurisdiction-
Prohibition:
 Literally, it means ‘to forbid’.
 It is issued by a higher court to a lower court or tribunal to prevent the
latter from exceeding its jurisdiction or usurping a jurisdiction that it does
not possess.
 Thus, unlike mandamus that directs activity, the prohibition directs
inactivity.
 The writ of prohibition can be issued only against judicial and quasi-
judicial authorities.
 In can be issued before the judicial authority has passed its order. Thus, the
nature of this writ is preventive.
 It can be issued when there is absence or excess of jurisdiction or the
Violation of the principles of natural justice.
 In all cases, where the party aggrieved may have ample remedy by an appeal
from the order or judgment of the Inferior Court, the prohibition will not lie.
 Limitation: It is not available against administrative authorities, legislative
bodies, and private individuals or bodies.
LAW SCHOOL
Jurisdiction-
Certiorari
 In the literal sense, it means ‘to be certified’ or ‘to be informed’.
 It is issued by a higher court to a lower court or tribunal either to transfer a
case pending with the latter to itself or to squash the order of the latter in a
case.
 It is issued on the grounds of the excess of jurisdiction or lack of
jurisdiction or error of law.
 Till recently, the writ of certiorari could be issued only against judicial and
quasi-judicial authorities and not against administrative authorities.
 However, in 1991, the Supreme Court ruled that the certiorari can be
issued even against administrative authorities affecting the rights of
individuals.
 Like prohibition, certiorari is also not available against legislative
bodies and private individuals or bodies.
 Certiorari is always available against inferior courts and not against the
equal or higher court.
LAW SCHOOL
Jurisdiction-
Difference between Prohibition and Certiorari
 The main difference lies in the stage, where the writs can be issued.
 Writ of prohibition can be issued by the Superior Court when a tribunal
takes up a matter for hearing over which it has no jurisdiction.
 The order of the superior court will forbid the tribunal from continuing the
proceedings.
 The writ is of preventive in nature.
---------------------------------------------------------------------------------------
 Writ of 'certiorari" can be issued by the Superior Court also after the
Court/tribunal has issued a decision.
 The order will quash the decision of the court.
 This writ is both preventive and curative in nature.

LAW SCHOOL
Jurisdiction-
Appellate Jurisdiction-
 The appellate jurisdiction of the supreme court can be divided into four
main categories-
− Constitutional matters
− Civil matters
− Criminal matters
− Special leave to appeal

LAW SCHOOL
Jurisdiction-
Appeal in constitutional matters.
 Under article 132(1) an appeal shall lie in the supreme court from any judgement
decree or Final order of a High Court whether in civil criminal or other
proceedings,
IF, the high court certifies under article 134A that the case involves a substantial
question of law as to the interpretation of this constitution.
 Where such a certificate is given any party in the case may appeal to the Supreme
Court on the ground that any such question as aforesaid has been wrongly
decided.
Object of article 134 A-
 The object is to avoid delay in granting certificate by the high court for appeal to
the supreme court.
 Under article 134 A the High Court can grant a certificate for appeal to the
supreme court under article 132 either on its own on motion or on Oral
application of the aggrieved party immediately after passing the judgement decree
or final order.
 Prior to this institution the High Court could do so only on the application of the
aggrieved party. ASST. PROF, SYMBIOSIS LAW SCHOOL
AMISH ABDULLAH,
Jurisdiction-
Under article 132(1) three conditions are necessary for the grant of certificate by the
High Court-
1) The order filed must be against a judgement decree or final order made by the high
court in civil criminal or other proceedings.
2) The case must involve a question of law as to the interpretation of this constitution.
3) If the high court under article 134 -A certifies that the case be heard by the supreme
court.
 OTHER PROCEEDINGS- The words “other proceedings” include the proceedings
other than Civil and criminal, For e.g. they include revenue proceedings which
includes proceedings under sales tax act or the Income Tax Act.
 SUBSTANTIAL QUESTION OF LAW

- The case must involve a substantial question of law as to the interpretation of
constitution.
- A question is not a substantial question of law which has been decided by the
supreme court in a previous case.
- But if there is a difference of opinion on any question of law among the high courts
and there is no direct decision of the Supreme Court on that point it would be a
substantial question of law.
Jurisdiction-
 In an appeal before the supreme court the appellant is not entitled to

challenge the propriety of the decision of the High Court appealed against
on the ground other than and those on which the certificate was granted by
the High Court, except with the leave of the supreme court.
 Such leave would normally be granted by Supreme Court where the trial
before the High Court has resulted in the grave miscarriage of Justice.
 Even after the certificate is granted by the high court the Supreme Court
may refuse to hear the appeal if it is satisfied that the bill is not competent

Jurisdiction-
Appeal in civil cases- Article 133
 Article 133 provides an appeal shall lie to the supreme court from any
judgement decree or final order in a civil proceeding of a High Court only if
the high court certified under article 134A that-
I. the case involves a substantial question of law of general importance and
II. an opinion of the high court says question needs to be decided by the
supreme court.

Jurisdiction-
Prior to the 38th Amendment Act of 1972

 Under article 133 an appeal could go to the supreme court in civil cases
from any judgement decree or final order of the high court and the high
court has certified that the amount or value of the subject matter of the
dispute both in the first instance and also on an appeal was not less than
20000 rupees
 that the judgement decree of final order involved directly or indirectly same
claim or question in property of the like amount or value that is 20000
rupees or
 that the case was a fit one for appeal to the supreme court.

Jurisdiction-
Post 38th Amendment Act of 1972

 The 30th Amendment Act 1972 has removed the condition of monetary
value that an appeal could go to Supreme Court only when the amount of
value in dispute was not less than 20000 rupees.
 Under the amended article 133 now an appeal could go to Supreme Court
only if the high court certifies under article 134 A that the case involves that
substantial question of law of general importance.

Jurisdiction-
Union of India versus Hafiz Mohd AIR 1975 Delhi 77
 The requirement of giving certificate under article 133 has now become
very stringent in view of the amendment of clause (1) by the constitution 30
Amendment Act 1972.
 It is not sufficient that the case involves a substantial question of law of
general importance but in addition to it the high court should be of the
opinion that such question needs to be decided by the supreme court.
 Further the word ‘needs’ and such necessity can be said to exist when for
instance two views are possible regarding the question and the high court
takes one of the said views.
 Such an instant can also be said to exist when a different view has been
expressed by another high court.
 It is thus Apparent that there must be some imperative necessity arising
from the fact and circumstances of the case before the court can certify it to
be fit one to prefer an appeal to the supreme court.
Jurisdiction-
Civil proceedings-
Narain Row v. Ishwar Lal AIR1965 SC
1818
 The expression civil proceedings means proceedings in which a party
asserts the existence of a Civil right.
 A civil proceeding is one in which a person seeks to remedy by an
appropriate process the alleged infringement of a Civil rights against
another person or the state and which if the claim is proved, would result in
the declaration, express or implied of the right claimed and relief such as
payment of damages, compensation etc.
 There is no ground for restricting the expression civil proceeding only to
those proceedings which arise out of civil suits in the proceedings which are
tried as civil suits.
 Accordingly a proceeding before high court under article 226 for a grant of
writ constitutes a civil proceeding.
Jurisdiction-
Civil proceedings-
 Under article 133 the supreme court does not interfere with the concurrent
findings of fact by trial court and the high court unless it is shown that
important and relevant evidence has been overlooked or unless it is fully
unsupported by evidence on record.
 It is left to the judicial discretion of the (apex) court as to when it will interfere
in the concurrent findings of fact of trial court and high court.
 No rigid rule can be laid down which will cover all cases.
SINGLE JUDGE OF HC- H.C. Bank, Kapur v. Bhagwan Dass AIR1955

SC1142
 No appeal shall, unless Parliament by law or otherwise provide , lie to the
supreme court from the judgement decree or final order of a single judge of a
High Court.
 This prohibition can be removed by Parliament by law. Such a law will not be
anAMISH
amendment of the constitution.
ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL
Jurisdiction-
Appeal in criminal cases -Article 134
 According to article 134 an appeal lies to the supreme court from any
judgement final order or sentence in a criminal proceeding of High Court in
the following two ways:
I. Without a certificate of High Court.
 Without a certificate. Article 134 (a) (b)-
 An appeal lies to the supreme court without the certificate of the high court
if the High Court-
• Has on appeal reversed in order of acquittal of an accused person and
sentenced him to death.
• 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.
 But if the High Court has reversed the order of conviction and has ordered
the acquittal of an accused no appeal would lie to the supreme court.

Jurisdiction-
 According to article 134 an appeal lies to the supreme court from any
judgement final order or sentence in a criminal proceeding of High Court in
the following two ways:
II. With a certificate. Article 134 (c).
 Under clause (c) an appeal lies to the supreme court if the high court
certifies under article 134 A that it is a fit case for appeal to the supreme
court.
 The power of the high court to grant fitness certificate in the criminal cases
is a discretionary power but the discretion is a judicial one and must be
Judicialy exercised.
 The Supreme Court has laid down entire guiding principles for the High
court to follow in granting certificate.
 The high court should grant certificate only when there has been exceptional
circumstances where substantial and Grave injustice has been done.
 The certificate cannot be granted by the High Court on mere question of fact
where no substantial question of law is involved.
Jurisdiction-
 State of UP versus Raj Nath AIR1983 SC 187.
 In this case the high court acquitted the accused in appeal solely on the
ground that it regarded the testimony of eyewitness to be baseless.
 It was held that the order of acquittal had resulted in the manifest
miscarriage of justice because the high court did not make an attempt to
evaluate the evidence of eye witness properly.
 Accordingly the order of the High Court was set aside and it was directed to
dispose of appeal a fresh after evaluating the evidence.

Jurisdiction-
Parliament is empowered under article 134 to to extend the
appellate jurisdiction of the supreme court in criminal matters.
 In exercise of the powers under article 134 Parliament has enacted the supreme
court Enlargement of criminal appellate jurisdiction Act 1970.
 Section-2 of this act provides-
“Without prejudice to the powers conferred on the supreme court by clause (1) of
article 134 of the constitution an appeal shall lie to the supreme court from any
judgement final order or sentence in a criminal proceeding of High Court in the
territory of India if the High Court-
A. Has on appeal reverse an order of acquittal of an accused person and sentenced
him to imprisonment for life or to imprisonment for a period of not less than 10
years.
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 imprisonment for life or to imprisonment for a period of not less than 10
years.”
Jurisdiction-
Muthu Naikar vs State of Tamil Nadu 1978 SC 647.
 In this case where the session judge regards the entire prosecution evidence
as unworthy of belief but the high court implicitly relies on almost the entire
evidence.
 The supreme court would be bound to examine the evidence for the purpose
of ascertaining whether there has been any such error of law or fact as to the
findings of the impugned judgement.

Jurisdiction-
Certificate for appeal to Supreme Court -Article 134A
 The constitution 44th Amendment as amended article 132,133, 135 and inserted a
new article 134 A for regulating the grant of the certificate for appeal to the
supreme court by the high courts.
 The object of this new provision is to avoid delay in cases going to the supreme
court in appeal from the judgement, decree, final order or sentence of the High
Court.
Article 134 A –
 Every High Court passing or making a judgement, decree, final order of sentence
referred to in clause (1) of article 132 or 134-
a. may, if it deems fit to do so, give its own motion and, ( - suo moto )
b. Shall if an oral application is made by or on behalf of the party aggrieved,
immediately after the passing or making of such judgement, decree, final order
of sentence.
-determine as soon as may be, after such passing on making the question whether a
certificate of the nature referred to in clause (1) of article 132, 133 or sub clause (c)
of AMISH
clauseABDULLAH,
(1) of article 134 may be given in respect of that case.
ASST. PROF, SYMBIOSIS LAW SCHOOL
Jurisdiction-
Power of Supreme Court to withdraw and transfer cases- Article 139-
 Article 139 A (1) provides that if an application made by the Attorney General of
India or by a party or on its own motion-
-if the supreme court is satisfied that the case involving the same or substantially
the same question of law pending before the supreme court and one or more high
courts or before two or more high courts and,
-that such question are substantially question of general importance it may
withdraw them and dispose them it self.
 It may after disposing of the said question of law may return any such case to the
high court with the copy of its judgement and then the high court will dispose of
the case in accordance with such judgement.
 Clause (2) of article 139 A empowers the supreme court to transfer cases appeals
or other proceedings from any High Court to another high court if it thinks it
expedient to do so for the end of Justice.
 This article enables the supreme court to decide cases involving same question of
law without delay and thus avoid conflicting interpretations of the provisions of
theAMISH
Constitution by different High Court.
ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL
Jurisdiction-
Union of India v. Shiromani Gurudwara Prabandhak Committee.
AIR1986 SCC 600.
 In this case a petition for transfer of a suit for damages filed in Punjab
against Union of India for loss of Gurudwara properties by respondents as
a result of operation Blue Star was filed in the supreme court by the Union
of India
 On the ground that fair trial in Punjab would not be possible in view of
Extraordinary situation prevailing there.
 In view of the unusual and sensitive nature of the suit and the extraordinary
situation in Punjab the court allowed the petition and transferred the case
to the Delhi High Court for trial.
 The court said that the power to transfer case from one state to another
must be used with circumspection and caution.
 In the instant case the circumstances justified the transfer of the case from
Punjab to Delhi court.

Jurisdiction-
A R Antulay v. R S Nayak (1988) 2 SC 602.
 In this case it has been held that the Supreme Court has no power under article
139A to withdraw case from special judge and transfer it to High Court.
 Article 139A envisages either interstate transfer of cases i.e. from court in one
state to court in another state OR of the withdrawal of a case by the supreme
court itself.
 Interstate transfer among court subordinate to high court inter se or from a
court subordinate to high court to the high court is within the jurisdiction of the
appropriate high court.
Swaranjit Kaur v. Swaran Singh Sohi AIR2009
SC12.
 In this case the wife, the petitioner thought the transfer of a divorce petition
from Delhi district Judge to District Judge Indore .
 The petitioner was dependent on her parents and she had two children and it
was difficult to defend the case by traveling to Delhi.
 The court allowed here the transfer petition from district judge Delhi to district
judge Indore.
Jurisdiction-
Appeal by special leave- Article 136.
 Under article 136 the supreme court is authorised to grant in its discretion special leave
to appeal from-
a) Any judgement, decree ,determination, sentence or order.
b) In any case or matter.
c) Passed or made by any Court or Tribunal in the territory of India.
The only exception to this power of the supreme court is with regard to any judgement
of any Court or Tribunal constituted by or under any law relating to the armed forces.
 The article vests very wide powers in the supreme court. The power given under this
article as in the nature of a special Residuary power which are exercisable outside the
purview of ordinary law.
 Articles 132 to 135 deal with ordinary appeals to the supreme court in cases where the
needs of justice demand interference by the highest court of the land.
 It rests in the supreme court a plenary jurisdiction in the matter of entertaining and
hearing appeals by granting special leave against any kind of judgement or order made
by any Court or Tribunal except a military Tribunal in any proceeding.
 The exercise of this power is left entirely to the discretion of the court unfettered by any
restrictions and thus power cannot be curtailed by any legislation short of amending the
article itself.
Jurisdiction-
Exercise in special cases
 The wide discretionary power with which This Court is vested under it is to
be exercised in granting special leave to appeal in exceptional cases only
and as far as possible a more or less uniform standard should be adopted in
granting special leave.
Concurrent findings of trial court and the High Court.
 Normally the supreme court does not interfere with concurrent findings of
the trial court and the high court unless there is sufficient ground to do so .
 But that can not mean that injustice must be perpetuated because it has been
done two or three times in a case.
 If the appellant prove that concurrent decision of two or more Courts or
Tribunal is manifestly unjust it will be the duty of the supreme court to
remedy injustice.

Jurisdiction-
Bega Begam v. Abdul Ahmed Khan AIR1979 SC 272

 In this case the high court and also the trial court have made a legally wrong
approach and committed a substantial and patent error of law in interpreting
the scope and Ambit of the words ‘reasonable requirement’ and ‘own
possession’ used in section 11 of the Jammu and Kashmir houses and shops
rent and Control Act and thus misapplied the law and overlooked some of
the essential features of the eviction act.
 The supreme court had to enter into the merit of the case in order to prevent
Grave and substantial injustice to the appellant who was affected as a result
of the above interpretation of law.

Jurisdiction-
Criminal cases
 The power of the supreme court under article 136 has more frequently been
involved in criminal appeals.
 In criminal cases the court will not grant special leave to appeal unless it is shown
that the special and exceptional circumstances exist it is established that the grave
injustice has been done and that the case in question is sufficiently important to
warrant a review of the decision by the supreme court.
Haripada Dey v, state of West Bengal AIR1956 SC 757
 In this case the supreme court held that it will grant special leave only if there has
been gross miscarriage of justice or departure from Legal procedure such as which
vitiates the whole trial or if the finding of the fact was such as shocking to the
judicial conscience of the court.
Subedar vs State of UP AIR1971 SC125
 In this case where the judgement under appeal has resulted in Grave miscarriage of
Justice by some misapprehension or mistake in reading of evidence or by ignoring
material evidence that it is not only empowered but is expected to interfere to
promote the cause of Justice.
Jurisdiction-
Concurrent findings of fact
Bhagin Bhai Hira Ji Bhai versus state of Gujarat AIR1983 SC 753

In an appeal under article 136 the Supreme court does not interfere with the
concurrent finding of fact unless it is established –
• That the finding is based on no evidence.

• That the finding is perverse, it being such as no reasonable person could
arrive at even if the evidence was taken at its face value.
• The finding is based and built on inadmissible evidence, which if excluded
from the vision, would negative the prosecution case or substantially
discredit or impair it.
• Some vital piece of evidence which would tilt the balance in favor of the
Convict has been overlooked disregarded or wrongly discarded
Jurisdiction-
Private party can file appeal under article 136 challenging acquittal-
Ramakant Rai v. Madan Rai AIR 2004 SC 77

 In this case the Supreme Court has held that where an accused is acquitted
by the high court and no appeal against acquittal is filed by the state a
private party can file appeal under article 136 against the acquittal order of
the High Court .

Jurisdiction-
Tribunals-
 Under article 136 the power of the supreme court to grant special leave to appeal is
not confined to order for determination of a court of law but includes tribunals also.
 Several tests have been laid down by the Supreme court to determine whether a
particular body is a Tribunal within the Ambit of article 136 but those tests are not
exhaustive.
 Within the ambit of article 136, Tribunal must be constituted by the state and is
vested with some functions of judicial power of the state.
 Tribunal is a body or authority although not a court having all the attributes of Court
which is vested with judicial power to advocate on questions of law and factors
affecting the rights to citizens in a judicial manner.
 For example Industrial Tribunal, Income Tax Tribunal, Labor Appellate Tribunal ,
Election Commission, Railway Tribunal are few examples of such tribunals that do
not form a court of law in the strict sense but are invested with certain functions of
Justice.
 But it does not include the Tribunals which have purely administrative or executive
or Tribunal having only legislative functions without any quasi judicial functions.
Jurisdiction-
Tribunals-
A.P.H.L. Conference, Shillong v. W.A. Sangamam AIR1977
SC 2155
 It has been held that the election commission is a Tribunal as it has been
created under the constitution and invested under the law with not only
administrative power but also with certain judicial power of the state
however fractional it may be.
 The commission exclusively resolve disputes between Rival parties with
regard to claim for being recognised political party for the purpose of the
electoral symbol.
 The commission fulfills the essential test of a Tribunal and Falls within the
Ambit of article 136 of the constitution.

Jurisdiction-
Tribunals-
Clerks of Calcutta Tramways v. Calcutta Tramways Co. Ltd.
AIR 1957
SC 78
 In this case it was held that the Supreme court can normally interfere with
the decision arrived at by this tribunals on the following grounds, where-
I. The Tribunal act in excess of the jurisdiction conferred upon it under the
statute or regulation creating it or where it ostensibly fails to exercise a
patent jurisdiction.
II. There is an Apparent error on the face of decision.
III. The awards are made in violation of principles of natural justice causing
substantial and Grave injustice to the parties.
IV. The Tribunal has erroneously applied well accepted principles of
jurisprudence.
Jurisdiction-
Tribunals-
Jaswant Sugar Mills v. Lakshmi Chand AIR1957 SC 78
 It was held that the conciliation officer exercising power under the UP
Industrial Dispute Act is not a Tribunal because it does not possess
attributes of a Court of Justice.
 The Conciliation officer is-
• not required to sit in public and formal proceeding is required before him.
• he cannot examine witnesses, compel production of document etc.
• he is not capable of giving final judgement affecting the rights and
obligation of parties.
 In civil cases the special leave to appeal under article 134 would not be
granted unless some substantial question of law of general public interest is
involved
Jurisdiction-
Power to review its judgement- Article 137
 Under article 137 Supreme Court has expressly been given the power to
review its judgement. However this is subject to any law passed by
parliament.
 This power is exercisable under the rules made by the court under article
145 on Grounds mentioned in order 57, Rule 1 of CPC.
 Review will lie in the Supreme Court on-

• Discovery of new important matters of evidence.
• Mistake or error on the face of the record.
• Any other sufficient reason.

Jurisdiction-
Power to review its judgement- Article 137
RD sugar v. V Nagary. AIR1976
SC2183
 In this case Supreme Court has held that a judgement of the final court of
the land is final.
 A review of the judgement is an exceptional phenomena permitted only
where a grave and glaring error or other well-established ground is made
out.
 In the present case the petitioner sought the review of an earlier judgement
on the ground that certain observations in the judgement amounted almost
branding him as an indicated criminal who is guilty of abetting, forgery and
perjury which were unmetted and therefore be obliterated.
 Guilty The court declined to cancel the above observation, however it
modified its rigour by making reviewing observations.

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AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

 The judges of the supreme court were appointed by the president.

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

[(1993) 4 SCC 441] (Judges transfer case-II.)

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

Whether resignation said to president becomes final immediately or it becomes

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

Union of India vs Gopal Chandra Mishra. (AIR1978 SC

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

Union of India vs Gopal Chandra Mishra. (AIR1978 SC

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

 Special majority- The address must be supported by a majority of total

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

K. Veeraswami vs. UOI [(1991)3 SCC 655]

Dipak Misra CJI.-2018

Dipak Misra CJI.-2018

 On 23 April 2018, the petition was rejected by Vice-President Venkaiah

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

 Article 129 makes the supreme court a court of record.

 A court of record is a court whose records are admitted to be of evidentiary

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

 On March 8, 2018, the Department of Justice wrote to the Law

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL

 Article 32 can only be invoked to get a remedy for violation of

 Supreme Court’s jurisdiction under article 32 is original but not exclusive.

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS

 SUBSTANTIAL QUESTION OF LAW

 In an appeal before the supreme court the appellant is not entitled to

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL

Prior to the 38th Amendment Act of 1972

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL

Post 38th Amendment Act of 1972

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL

SINGLE JUDGE OF HC- H.C. Bank, Kapur v. Bhagwan Dass AIR1955

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL

AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL