MODULE 4

THE SUPREME COURT

4.1 Independence of Judiciary

The Judiciary plays the important role of interpreting and applying the law and adjudicating upon
controversies between one citizen and another and between a cite law and state. It is the function
of the courts to maintain rule of law in the country and to assure that the government runs
according to law. In a country with a written constitution, courts have tha the final function of
safeguarding the supremacy of the Constitution by interpreting and applying its provisions and
keeping all authorities within a constitutional framework.

In India, the judiciary also has the significant function of protecting and enforcing the
Fundamental Rights of the people guaranteed to them by the Constitution

Union Judiciary of India comprises of the Supreme [Link] Court of India came into
existence on 26th January, 1950 and is located on Tilak Marg, New Delhi. It includes the Chief
Justice of India and all other [Link] is the supreme interpreter of the constitution and the
guardian of the people’s fundamental rights.

ARTICLE 124(1) establishes the Supreme Court of [Link] chief justice of this court is
delegated as the Chief Justice of India.

Article 124(1) There shall be a Supreme Court of India constituting of a Chief Justice of India
and, until Parliament by law prescribes a larger number, of not more than seven other Judges

Article 130 provides that the Supreme Court shall sit in Delhi or in such other place or places as
the Chief Justice of India with the approval of President, from time to time appoint.

The Constitution of 1950 envisaged a Supreme Court with one Chief Justice and 7 puisne
[Link] number of SC judges was increased by the Parliament to 25 by the enactment of the
Supreme Court(Number of judges)Act,1956 and again in 1986 and lastly in [Link] currently,
there are 34 judges including the Chief Justice of India (CJI).

An independent judiciary is the sine qua non of a vibrant democratic system. Only an impartial
and independent Judiciary can stand as a bulwark for the protection of the rights of the individual
and mete out even handed justice without fear or favour.

1
The Judiciary is the protector of the Constitution and, as such, it may have to strike down
executive, administrative and legislative acts of the Centre and the States. For Rule of Law to
prevail, judicial independence is of prime necessity.

Being the highest Court in the land, it is very necessary that the Supreme Court is allowed to
work in an atmosphere of independence of action and judgment and is insulated from all kinds of
pressures, political or otherwise.

An independent judiciary implies that the executive and legislature should not interfere in the
work of the judiciary. The judiciary is expected to be free from all the influences and interests of
the government and the ruling party and should not act on its behalf. The judges, in an
independent judiciary, should have the freedom to exercise the judicial powers conferred upon
them without any influence, pressure or fear.

The independence of the Indian Judiciary is one of the most significant features of the
Constitution. Any policy or decision of the Government which would undermine or destroy the
independence of the judiciary would not only be opposed to public policy but would also
impinge upon the basic structure of the Constitution.

The concept of "separation of powers between the legislature, the executive and the judiciary and
"independence of judiciary", a fundamental concept, has now been "elevated to the level of the
basic structure of the Constitution and are the very heart of constitutional scheme.

[Link] Supreme Court's expenses are charged upon the Consolidated Fund of India, which
means that this item is non-votable in Parliament although a discussion on it is not ruled [Link] is
thus not possible for Parliament, howsoever annoyed it may be with the Court, to starve it of
funds And the possibility of Parliament getting annoyed with the Court is not just a figment of
the imagination. That such occasions may arise is evidenced by the reaction to the Supreme
Court's decision in the Golaknath case or the Kesavanand Bharati case and earlier in the property
cases, which led to the First and the Third Amendments of the Constitution.

Some independent features/fuctions of Indian Judiciary includes:

1. Deciding salary of judges- The judges of the SC enjoy good salaries and allowances and
these cannot be decreased except in the case of a financial emergency. The expenses of
the High Court are charged on the Consolidated Fund of the State, which is not subject to
vote in the state legislature.
2. Fixed tenure of judiciary-The judges of the SC are given security of tenure. Once
appointed, they will retain their office until the age of 65 years. They can be removed
only by a presidential order on grounds of proven misbehaviour and/or incapacity. This
requires a Special Majority according to Article 368.

2
 3. Appointment of judges
4. Restictions on discussion of judicial proceedings in the parliament
5. Power to punish for contempt of court

4.2 Appointment of Judges- S. P. Gupta to Presidential Reference

According to Art. 124(2), the Judges of the Supreme Court are appointed by the [Link]
appointing the Chief Justice, the President has consultation with such of the Judges of the
Supreme Court and the High Courts as he may deem necessary.

In case of appointment of other Judges, the President is required to consult the Chief Justice of
India though he may also consult such other Judges of the Supreme Court and the High Courts as
he may deem necessary. [Proviso to Art. 124(2)]

Article 124 (2) Every Judge of the Supreme Court shall be appointed by the President by
warrant under his hand and seal 3[on the recommendation of the National Judicial
Appointments Commission referred to in article 124A] and shall hold office until he attains the
age of sixty-five years.

I. APPOINTMENT OF SUPREME COURT JUDGES POSITION BEFORE 1993

Before the year 1993, the final power to appoint Supreme Court Judges rested with the Executive
and the views expressed by the Chief Justice were not regarded as binding on the Executive.

For long, the practice in India had been to appoint the senior-most judge of the SC as the CJI. In
1958, the Law Commission criticised this practice on the ground that a CJ should not only be an
able and experienced Judge but also a competent administrator at therefore, succession to the
office should not be regulated by mere seniority.

In 1973, the Government suddenly departed from this practice and appointed as Chief Justice a
Judge [Justice A.N. Ray] who was fourth in the order of seniority. Thus, three senior Judges
were by-passed, who then resigned from the Court in protest .The Government was accused of
tampering with the independence of the Judiciary.

Again in 1976, the Government appointed Justice BEG as the Chief Justice by-passing Justice
KHANNA who was senior to him at the time. Consequently, Justice KHANNA resigned in
[Link], after the retirement of Chief Justice BEG, the senior-most Judge, Justice
CHANDRACHUD was appointed as the Chief Justice. Since then again the rule of seniority has
been followed in the matter of appointment of the Chief Justice of India.

In the context of India, it appears to be best to adhere to the convention of appointing the senior-
most Judge as the Chief Justice. This will avoid any suspicion that the Government seeks to
tamper with the judiciary. Also, when the Government has discretion to appoint the Chief

3
Justice, there is no guarantee that the best man for the post will always be appointed and that
considerations other than merit will not come into play. Appointment of a junior Judge
invariably results in the resignation of Judges senior to him and thus the country loses the
services of able and experienced Judges who could make significant contribution to the cause of
law and justice.

II. APPOINTMENT OF SUPREME COURT JUDGES POSITION AFTER 1993

The Constitution merely says that the President is to appoint Supreme Court Judges in
consultation with the Chief Justice and "such" other Judges of the Supreme Court and of the
High Courts as "the President may deem necessary". [Article 124(2)]

Every Judge of the Supreme Court shall be appointed by the President by warrant under his/her
hand and seal after consultation with such of the Judges of the Supreme Court and of the High
Court in the States as President may deem necessary for the purpose and shall hold office until
he attains the age of 65 [Link] Court held that the consultation with Chief Justice is not
binding on the President. But the Court held that consultation should be effective.

In Supreme Court Advocates-on-Record Association vs Union of India 1993, the Court states
that the view of the CJI is binding on the President, the Court also held that while advising the
President CJI is expected to consult two of the senior-most [Link] is the sole authority to
initiate the process of appointment of Judges of the Supreme Court. In case of conflict of opinion
between CJI and President, the view expressed by CJI will have a primary.

➔ Eligibility Criteria for Supreme Court Judge

The Indian Constitution says in Article 124 [3] that in order to be appointed as a judge in the
Supreme Court of India, the person has to fit in the following criteria:

● He/She is a citizen of India and [Article 124(3)]

● has been for at least five years a Judge of a High Court or of two or more such Courts
in succession; or [Article 124(3)(a)]
● has been for at least ten years an advocate of a High Court or of two or more such
Courts in succession; or [Article 124(3)(b)]
● is, in the opinion of the President, a distinguished jurist. [Article 124(3)(c)]

Subhash Sharma v. U.O.I.

Defined the word 'consultation' is used in a constitutional provision in recognition of the status of
the High constitutional dignitary who formally expresses the result of the institutional process
leading to the appointment of judges. To limit that expression to its literal limitation shorn of its
constitutional background and purpose is to borrow Justice Frankfurter's phrase "to stick in the
bark of words.
4
[Link] v UOI-First judges case, 1982

When asked the Supreme Court of India whether the word “consultation” in the constitutional
article 124 mean “concurrence”; the Supreme court overruled this and denied saying that
Consultation does not mean concurrence. The President was not bound to make a decision
based on the consultation of the Supreme [Link] was held that the consultation in Article 235 is
not binding on the president, it was held that The chief justice was also an ordinary man who
might not be able to give correct judgments sometimes so making his judgments binding on the
higher authorities might be risky. According to the Supreme Court, consultation is only a
suggestion, not concurrence, and is not binding on the [Link] final say would be with the
central executive while appointing judges.

Supreme Court Advocates on Record Association v UOI -Second judges case,1993

In this case, the Supreme court overruled its earlier verdict and changed the meaning of
consultation to concurrence. The court was of the decision that the CJI’s view would not only
take precedence over the President's but also be decisive in the event of a disagreement between
the two on the appointment of judges. The SC not only reclaimed its authority from the
government in the 1993 decision, but it also established itself as the supreme court, ruling above
the other two branches.

Following guidelines were laid down in this case:

(1) In making his recommendation for appointment to the Supreme Court, the Chief Justice of
India ought to consult four senior-most puisne Judges of the Supreme Court.
Thus, the collegium to make recommendation for appointment should consist of the Chief Justice
and four senior-most puisne Judges.
(2) The opinion of all members of the collegium in respect of each recommendation should be in
writing.
(3) The views of the senior-most Supreme Court Judge who hails from the High Court from
where the person recommended comes must be obtained in writing for the consideration of the
collegium.
(4) If the majority of the collegium is against the appointment of a particular person, that person
shall not be appointed. The Court has gone on to say that "if even two of the Judges forming the
collegium express strong views, for good reasons, that are adverse to the appointment of a
particular person, the Chief Justice of India would not press for such appointment."
(5)The following exceptions have now been engrafted on the rule of seniority among the High
Court Judges for appointment to the Supreme Court:
(a) A High Court Judge of outstanding merit can be appointed as a Supreme Court Judge
regardless of his standing in the seniority list. "All that needs to be recorded when
recommending him for appointment is that he has outstanding merit".

5
(b) A High Court Judge may be appointed as a Supreme Court Judge for "good rea-sons" from
amongst several Judges of equal merit, as for example, the particular region of the country in
which his parent High Court is situated is not represented on the Supreme Court Bench.

In Re Presidential Reference AIR 1999, a Presidential reference was issued in the year 1998 by
the then President K.R. Narayanan regarding the word “consultation” used in the Constitution.
The debate was whether the consultation of the CJI was sufficient or was there a need for
consulting other judges as well.

The nine-judge bench held that merely the singular opinion of the Chief Justice of India was not
sufficient. The court in this decision laid down the guidelines for the collegium system. The
court further developed the collegium system to comprise four senior-most judges along with the
Chief Justice of India.

Additionally, it was noted that the Chief Justice of India's recommendations would not be
binding on the Indian government if they were made without adhering to the rules and
specifications of the consultation process

Collegium System

● In this system of appointment of Judges, the collegium will recommend the names of the
candidates to the Central [Link], the central government will send the names
of the proposed candidates for [Link] appointment process takes a long time
since there isn’t a fixed time limit for it. If the Collegium resends the same name again
then the government has to give its assent to the names.
● The Collegium System faced a lot of criticism not only from the government but also
from civil society due to its Lack of Transparency and Accountability.
● This led to the 99th Constitutional Amendment Act, 2014 the National Judicial
Commission Act (NJAC) to replace the collegium system for the appointment of judges.
● The SC collegium is headed by the CJI (Chief Justice of India) and comprises four
other senior most judges of the court.
● A High Court collegium is led by the incumbent Chief Justice and two other senior
most judges of that court.

➔ National Judicial Appointments Commission (NJAC)

6
The government of India felt that the Supreme Court collegium lacked transparency was opaque
and also lacked accountability. Therefore, the government via the Ninety-Ninth Constitutional
Amendment brought the National Judicial Appointments Commission (NJAC) into existence.

The aim of NJAC was to overcome the drawbacks of the collegium. It provided that the
commission would comprise of the chief justice of India, two senior-most supreme court judges
as members, union law minister as ex officio officers, two eminent persons who were to be
nominated by a committee (comprising of the prime minister, the leader of the opposition and the
chief justice of India).

However, the constitutionality of the NJAC was questioned. The Hon’ble Supreme Court in the
case of Supreme Court Advocates on Records Association v. Union of India by a 4:1 majority
declared NJAC to be unconstitutional. The reasons were independence of the judiciary and
separation of the power conferred by the Constitution.

ANOTHER EXPLANTION OF 1,2 AND 3 JUDGES CASE

7
 1. First Judges Case (S.P. Gupta vs Union of India)

• The judgment was rendered, by a seven-Judge Bench, by a majority of 4:3, in the First Judges
Case on December 30, 1981.
• Earlier, the power of appointment of judges to the higher judiciary, was exclusively vested with
the President.
• In its judgment, it was held that “consultation” did not include “concurrence”, and further, that
the power of appointment of Judges under Article 124, was vested with the President, and also,
that the President could override the views of the consultees.
• It declared that the “primacy” of the CJI’s recommendation on judicial appointments and
transfers can be refused for “cogent” reasons.

2. Second Judges Case (Supreme Court Advocates-on-Record Association vs Union of

India)

• The correctness of the First Judges Case was doubted by a three-judge bench in Subhash
Sharma vs Union of India, which opined that the majority view, in the First Judges Case, should
be considered by a larger Bench.
• The Chief Justice of India constituted a nine-Judge Bench, to examine two questions. Firstly,
whether the opinion of the Chief Justice of India in regard to the appointment of judges to the
Supreme Court and to the High Courts, as well as, transfer of Chief Justices and judges of High
Courts, was entitled to primacy? And secondly, whether the fixation of the judge-strength in
High Courts, was justiciable?
• By a majority of 7:2, a nine-judge bench of the Supreme Court overruled the judgment in the
First Judges Case. The judgment was rendered on October 6, 1993.
• The primacy in the matter of appointment of judges to the higher judiciary, came to be
transferred from the executive, to the Chief Justice of India (based on a collective decision, by a
collegium of judges).
• It said the CJI only needed to consult two senior-most judges.

3. Third Judges Case

• Consequent upon doubts having arisen with the Union of India, about the interpretation of the
Second Judges Case, the President of India, in exercise of his power under Article 143, referred
nine questions to the Supreme Court, for its opinion.
• The collegium of judges, headed by the Chief Justice of India, has been vested with the final
determinative authority for making appointments to the higher judiciary. And the President is
liable to “concur”, with the recommendations made.
• The SC bench noted that the expression “consultation with the Chief Justice of India” in Article
217(1) of the Constitution of India requires consultation with a plurality of judges in the

8
formation of the opinion of the Chief Justice of India. The sole, individual opinion of the Chief
Justice of India does not constitute “consultation” within the meaning of the said Article.
• The Chief Justice of India must make a recommendation to appoint a judge of the Supreme
Court and to transfer a Chief Justice or puisne judge of a High Court in consultation with the four
senior-most puisne judges of the Supreme Court.
• The Chief Justice of India is not entitled to act solely in his individual capacity, without
consultation with other judges of the Supreme Court, in respect of materials and information
conveyed by the government of India for non-appointment of a judge recommended for
appointment.
• It is important to note that the Third Judges Case modified one important norm or conclusion of
the Second Judges Case.
• The modification was that the ‘collegium’ for appointment of judges in the Supreme Court was
expanded to consist of the Chief Justice of India and four senior-most judges rather than the two
senior-most judges as concluded in the Second Judges Case.

➔ SALARY OF SC JUDGE
The salary payable to a Supreme Court Judge was specified in the Constitution [Article 125(1)]
But then by the Fifty-fourth Constitutional Amendment, Parliament has been given power to
determine the salary payable to a Supreme Court Judge by law.

Parliament is also authorised to determine, from time to time, by law such questions as the
privileges, allowances, rights in respect of leave of absence and pension for these Judges. None
of these can, however, be varied by Parliament to the disadvantage of a Judge after his
appointment to the Court [Article 125(2) ].
All these matters are now regulated by the Supreme Court Judges (Salaries and Conditions of
Service) Act, 1958.

Article 125.
(1) There shall be paid to the Judges of the Supreme Court such salaries as may be determined
by Parliament by law and, until provision in that behalf is so made, such salaries as are
specified in the Second Schedule.]
(2) Every Judge shall be entitled to such privileges and allowances and to such rights in respect
of leave of absence and pension as may from time to time be determined by or under law made
by Parliament and, until so determined, to such privileges, allowances and rights as are
specified in the Second Schedule:
Provided that neither the privileges nor the allowances of a Judge nor his rights in respect of
leave of absence or pension shall be varied to his disadvantage after his appointment.

➔ RETIRED SUPREME COURT JUDGE

9
A person who has held office as a Supreme Court Judge cannot plead or act in any court or
before any authority in India [Article 124(7)]. This disqualification has been placed on the ex-
Judge with a view to preserving the dignity of the Supreme Court and also to avoid
embarrassment to the tribunal or the court before whom he may appear.

However, the Chief Justice of India, with the previous consent of the President, may request any
retired Supreme Court Judge to sit and act as a Judge of the Court. If he agrees to do so, then
while so sitting and acting, he is entitled to such allowances as may be determined by an order of
the President. He will also enjoy all the jurisdiction, powers and privileges of a Supreme Court
Judge, but shall not otherwise be deemed to be a Judge of the Court.

The Chief Justice may similarly request a retired High Court Judge, who is duly qualified to be
appointed as a Supreme Court Judge, to sit and act as a Judge of the Supreme Court [Article
128].

➔ TENURE
A Judge of the Supreme Court may resign his office by writing to the [Link] holds office
until he attains the age of 65 years.

4.3 Removal of Judges

The question of removal of a Judge before the age of retirement is an important one as it has a
significant bearing on the independence of the judiciary. If a Judge of the Supreme Court could
be removed by the Executive without much formality, then it can be imagined that the Court
would lose its independence and become subject to the control of the Executive.

ARTICLE 124(2)(b) - The Constitution of India also makes a provision for the removal of a
Supreme Court Judge as mentioned in clause (4).

Article 124(4) - He may be removed from office by the President on an address by both Houses
of Parliament sented in the same session for proved misbehaviour or incapacity. The address
must be supported by a majority of the total membership in each House, and also by a majority
of not less than two thirds of the members of each House present and [Link] word 'proved' in
this provision indicates that the address can be presented by Parliament only after the alleged
charge of misbehaviour or incapacity against the Judge has been investigated, substantiated and
established by an impartial tribunal.

In case K. Veeraswami v. UOI it was mentioned that the President cannot remove a Supreme
Court Judge except in accordance with the procedure laid down in Art. 124(4). Thus, the
President cannot remove a Judge unless each House of Parliament passes an address for the

10
removal of the Judge supported by a majority of the total membership of the House and by a
majority of not less than two-thirds of the members present and voting on the ground of proved
misbehaviour and incapacity. Unless such an address is presented to the President in the same
session by the two Houses, the President is not empowered to remove a Judge.

Justice [Link] in M Krishna Swami v Union of India reiterated multiple times that even
in the absence of a fixed set of principles, there exists an unwritten code of conduct which bears
various guidelines for judicial behaviour. Grounds like misbehaviour and incapacity act as
preventive measures for arbitrary removal of judges. Adjudicating upon these measures requires
a careful examination Misbehaviour is an expression with a wide connotation and could not be
used in a restricted manner, It is a vague term. Every act or conduct or even abstract error of
judgement or negligent acts by higher judiciary per se would not amount to misbehaviour. Wilful
abuse of judicial office, willful misconduct in the office, corruption, lack of integrity, or any
other offence involving moral turpitude would amount to misbehaviour.

Article 124(5) - The Parliament has to settle and lay down by law the detailed procedure
according to which the address may be presented and the charge of misconduct or incapacity
against the Judge investigated and proved.

In accordance with the above provision, Parliament has enacted the necessary law for the
purpose. The Judges (Inquiry) Act, 1968, now regulates the procedure for investigation and
proof of misbehaviour or incapacity of a Supreme Court Judge for presenting an address by the
Houses of Parliament to the President for his [Link] procedure for the purpose is as
follows:

1. A notice of a motion for presenting such an address may be given by 100 members of the
Lok Sabha, or 50 members of the Rajya Sabha. The Speaker or the Chairman may either
admit or refuse to admit the motion. If it is admitted, then the Speak- er/Chairman is to
constitute a committee consisting of a Supreme Court Judge, a Chief Justice of a High
Court and a distinguished jurist.
2. If notices for the motion are given on the same day in both the Houses, the Committee of
Inquiry is to be constituted jointly by the Speaker and the Chairman.
3. The Committee of inquiry is to frame definite charges against the Judge on the basis of
which the investigation is proposed to be held and give him a reasonable opportunity of
being heard including cross-examination of witnesses.

It can be seen that the constitutional Judge is modelled on the English provision, though the
former is somewhat more rigid than latter insofar as-

1. it requires a special majority in both Houses whereas in England no po majority is

prescribed.

11
 2. while in India the grounds have been specified on which an address the removal of a
Judge can be presented, there is no such provision in England.
3. in India, there is provision for investigation and proof of the grounds before presenting an
address, no such pro sion exists in England. Therefore, it appears that the provision in
England for the removal of Judg is more flexible than that in India.

In Sub-Committee of Judicial Accountability v. Union of India," the Supreme Court was called
upon to consider the question whether di Judge. The Court's Sabha put an end to the motion for
removal of the concerned Supreme Court Judge. The Court's response to this question was that th
motion for removal of a Judge under Art. 124 of the Constitution does not lapse with the dissol
tion of the House. The motion having been submitted to the Speaker, its validity would in no
way be impaired by the dissolution of the House. The Court reached this conclusion as a result of
inte pretation of Ss. 3(1) and 6 of the Judges (Inquiry) Act.

The Court ruled that the Committee of Inquiry appointed by the Speaker was a body outside
Parliament and a statutory body under the Judges (Inquiry) Act,The Court ruled further that
whether a motion has lapsed or not because of the dissolution of the House is not solely for the
House to decide. In the Court's opinion, because of the written Constit tion, "the usual incidents
of parliamentary sovereignty do not obtain and the concept is one of 'limited Government".
Judicial review is an inevitable part of a written Constitution which is the fundamental law of the
land.

In Justice P.D. Dinakaran vs Hon’ble Judges Inquiry Committee, in 2011, it was alleged that
P.D. Dinakaran, former Chief Justice of Sikkim High Court, had accumulated disproportionate
assets and was involved in land acquisitions in Arakkonam (his hometown), exceeding the limit
that was fixed by the Tamil Nadu Land Reforms. A motion was admitted in the Rajya Sabha by
its Chairman in December 2009 and met with success to the extent of the constitution of an
Inquiry Committee, seeking his removal on the charges of corruption and abuse of his office.
However, before the proceedings could be completed in one House, he tendered his resignation
on grounds of lack of confidence and faith in the three-member Inquiry Committee probing the
charges against him and thus, the removal was halted. He managed to get post-retirement
benefits even before the proceedings could be completed and the allegations against him could
be proved.

Justice v. Ramaswami case-1st Case related to impeachment. He was charged for

misappropriation of money .The specker of L.C passed the motion .The committe
made the report but during that time the L.S [Link] was decided that Just
because LS disolved ,the report by the committe will not loose its identity. The
committe was a statutory body under the act 1950

4.4 Judicial Accountability

12
Judicial accountability refers to the idea that judges are accountable for the judgements they
render. It also entails that judges must answer for their behaviour. Stronger judicial
accountability is required in light of the rise in these disputes to ensure that the delivery of justice
is not jeopardised. The method of judicial accountability needs to be well-imparted in society.
Justice is said to be blind, thus, it is up to the judges to decide how to administer it while keeping
in mind that each and every citizen of the country should receive justice. Because the judges'
decisions determine the fate of the parties engaged in a case being heard by the court, it is
necessary to hold them responsible for their decisions. Any democratic country is said to require
accountability in order to uphold the rights granted to its citizens and administer justice that is
intended to be equal for all. The judiciary must establish a balance in order to control its function
and encourage impartiality among the judges. Any nation's judicial system is an independent and
impartial structure designed to address injustice

Provisions that guarantee Judicial Accountability:

1. Articles 124 and 217 of our Indian Constitution allow for the impeachment of judges of
the Supreme Court of India and the High Courts on the grounds of misconduct and
incompetence, respectively.
2. Article 235 of the Constitution, the High Court has "control" over the subordinate
judiciary. It offers a strong enforcement mechanism to hold the lower judiciary
accountable.

Requirement of enhancing Judicial Accountability:

Following are some of the reasons which make it imperative to enhance judicial accountability in
India:

1. Constitution’s Guardian- Judicial accountability is especially crucial since the court is

responsible for protecting our constitution, making it considerably more harmful for
ideals to be violated there than in any other branch of government.
2. Public Confidence- The judiciary must work to keep the public's trust in the established
courts if it is to maintain its independence as an institution.
3. Speedy Justice- Fast justice is not only a fundamental human right but also a requirement
for upholding the rule of law and providing effective government.
4. No Legal Obligation- The judiciary is not required by law to create yearly reports or
present them to Parliament or the State Legislature, in contrast to the government.
5. Impartial Functioning- It will contribute to ensuring an unbiased operation that will
increase public confidence in the courts as an institution.
6. Narrow Scope of Right to Information- The range of data that courts are willing to
divulge under RTI is not very broad.

13
In the case of Sarojini Ramaswami v. Union of India & Ors, also known as the Ramaswamy
case, the impeachment issued by the apex court failed badly due to the lack of majority vote from
the Houses of the Parliament. Justice Ramaswamy was charged with misusing the court’s fund
but was not impeached for the refusal of one of the parties to cast a vote. This case brought to
light the drawbacks of the judiciary and the need for strong judicial accountability to keep in
check such issues happening in the future. The judgments that have been listed above makes us
realize that stronger judicial accountability is welcoming because it ensures the correct and fair
delivery of justice to the people. Great scholars have said that justice must not only be delivered
but also must see to have been delivered. Therefore for the judiciary to be certain in its decision-
making activity, the judiciary must be accountable for its activities.

In several judgments delivered by the courts, the one thing that has come under notice is that
there are no remedies to regulate the misbehaviour or mistakes committed by the judges except
just removing them through impeachment which is again a long process. The court in the case of
Sub-Committee on Judicial Accountability v. Union of India took into the observation that
there exists no provision in any statutes to charge a judge of the Supreme Court or the High
Courts for their misbehaviour during a court proceeding. This absence calls for stronger judicial
accountability to keep intact the uprightness of the judiciary.

4.5 Jurisdiction and Powers

The Supreme Court is a multi-jurisdictional Court and may be regarded as the most powerful
Apex Court in the [Link] Constitution confers very broad jurisdiction on the Court. The
jurisdiction of the Court may be put under the following heads:
1. The Court has power to commit a person for its contempt [Art. 129]
2. The Court has original jurisdiction to decide inter-governmental disputes [Art. 131]
3. The Court has appellate jurisdiction. It is the highest court of appeal in the country in
all matters, civil or criminal [Arts. 132 to 134].
4. The Court has a very extensive appellate jurisdiction under [Art. 136] from any court or
tribunal in the country.
5. The Apex Court has power under Art. 32 to enforce Fundamental Rights. [Art. 32]
6. The Court has advisory jurisdiction. [Art. 143]
7. The Court has power to review its own decisions. [Art. 137]
8. The Court has power to make any order necessary for doing complete justice in any
case. [Art. 142]

CONTEMPT OF SUPREME COURT

14
The Supreme Court is a court of record and has all the powers of such a court including the
power to punish for its contempt. A court of record has—
1. power to determine its own jurisdiction, and
2. it has power to punish for its contempt.
On the question of contempt of court, the Supreme Court has a summary jurisdiction to punish
contempt of its authority. This is an extraordinary power and is exercised only to uphold the
majesty of judicial [Link] a power is very necessary to prevent interference with the course
ofjustice, to maintain the authority of law as administered in the court, and thus to protect public
interest in the purity of the administration of justice.

The Supreme Court exercises this power to punish an act which tends to interfere with the course
of administration of justice. The following inter alia have been held to constituent contempt of
court :
(a) insinuations derogatory to the dignity of the Court which are calculated to undermine the
confidence of the people in the integrity of the Judges;
(b) an attempt by one party to prejudice the Court against the other party to the action;
(c) to stir up public feelings on the question pending for decision before the Court and to try to
influence the Judge in favour of himself;
(d) an attempt to affect the minds of the Judges and to deflect them from performing their duty
by flattery or veiled threat;
(e) an act or publication which scandalises the Court attributing dishonesty to a Judge in the
discharge of his functions;
(f) wilful disobedience or non-compliance of the Court' order.

Contempt of court is committed when a court is scandalised by casting unwarranted, uncalled for
and unjustified aspersions on the integrity, ability, impartiality or fairness of a judge in the
discharge of his judicial functions as it amounts to an interference with the due course of
administration of justice.

In CK Daphtary v OP Gupta,a pamphlet published and circulated by the respondent was alleged
to contain statements amounting to contempt of the Court. The President of the Supreme Court
Bar chose to bring the matter to the Court's notice. The Court ruled that it could issue a notice
suo motu and the President of the Supreme Court Bar was perfectly entitled to bring to the notice
of the Court any contempt of the Court.
The Court refused to accept the contention that after the case is decided, even if it is criticised
severely and unfairly, it should not be treated as contempt of court. The Court observed:
We are unable to agree..that a scurrilous attack on a Judge in respect of a judgment or past
conduct has no adverse effect on the due administration of justice. This sort of attack in a country
like ours has the inevitable effect of undermining the confidence of the public in the judiciary. If
confidence in the judiciary goes, the due administration of justice definitely suffers.

15
CONTEMPT OF SUBORDINATE COURTS
In Delhi Judicial Service Association v. State of Gujarat, the Supreme Court has given a broad
and expansive interpretation to Art. 129 and has thus made a significant contribution towards
maintaining the integrity and independence of subordinate courts by taking them under its
protective um-brella. The Court has ruled that under Art. 129, it has power to punish for
contempt not only of itself but also of High Courts and of the lower courts. The Court claimed
that under Art. 136, it has a very wide and effective power to correct judicial orders of the
subordinate courts. Thus, the Supreme Court has a wide power of judicial superintendence
overall courts in India.

Article 129. 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.

CONTEMPT OF HIGH COURTS

A question was raised in re Vinay Chandra Mishra “whether under Article 129, the Supreme
Court can take cognisance of the contempt of a High Court. It was argued that the Supreme
Court cannot do so for two reasons: (1) Article 129 vests the Supreme Court with the power to
punish only for the contempt of itself and not of the High Courts; (2) the High Court is itself a
court of record having power to punish for its own contempt under Article 215.
The Supreme Court however rejected the contention and ruled that it was empowered to take
cognisance of the contempt of a High Court under Article 129.

Delegated legislation is generally a type of law made by the executive authority as per the
powers conferred to them by the primary authority in order to execute, implement and administer
the requirements of the primary authority. It can be said that it is the law made by any person or
authority under the power of parliament. It is also known as subordinate legislation in
administrative law. It allows the bodies beneath the primary authority or legislature to make laws
according to the requirement. Through an act of Parliament, Parliament has full authority to
permit any person or authority to make legislation. An act of parliament creates a framework of a
particular law which tends to be an outline of the purpose for which it is created. The important
object of this is that any legislation by such delegation should be according to the purposes as
laid down in the act.

ORIGINAL JURISDICTION

Article 131. 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

16
(b) between the Government of India and any State or States on one side and one or more other
States on the other; or
(c) between two or more States,
if and in so far as the dispute involves any question (whether of law or fact) on which the
existence or extent of a legal right depends:

A dispute to be justiciable by the Supreme Court under article 131 should involve a question
whether of law or fact on which the existence or extent of legal right depends questions of
political nature, not involving any legal aspect or executed from the court’s purview.
The Supreme Court’s jurisdiction under article 131 is subjected to limitations that are
(i) as to the parties (ii) as to the subject matter.

Under article 131, the Supreme Court cannot take cognizance of a suit bought by a private
individual against a government. No private party be a citizen or a firm or cooperation can be
impleaded as a party in a suit under article 131 along with the state, either jointly or in
[Link] means that only intergovernmental disputes can be bought into the Supreme
Court under article 131 and a state cannot sue under article 131, a government company
belonging to the central government even though it will be deemed to be a state under article 12.

State of Bihar v Union of India

The state of Bihar filed a suit against the Union of India, claiming compensation from the
Railways for non-delivery of certain goods consigned by the state. The court ruled that this was
matter which did not fall under article 131 as it was not a dispute arising in the context of the
“Constitution and the federalism it sets up”.The matter arose out of the legal rights of a private
consignor and consignee of goods and thus fell outside article 131 and was cognizable by a
subordinate court court.

State of Karnataka v State of Andhra Pradesh

A suit filed by the State of Karnataka against the State of Andhra Pradesh in the article 131,
raising a dispute relating to non-implementation of the binding decision rendered by the Krishna
water disputes tribunal constituted under section 4 of the interstate water dispute act, 1956 has
been held to be maintainable by the Supreme Court According to article 131.

Appellate Jurisdiction under Article 136

Appellate jurisdiction is the power of a higher court to hear appeals from a lower court. The
higher court can review decisions and change outcomes of the decisions of lower courts.
Appellate jurisdiction, under the Indian Constitution, is defined as the rights of the higher courts
to change or cancel the decision of the lower court. Appellate jurisdiction under Indian

17
Constitution is defined under Article 132 to Article 136. A certificate provided by the
competent high court can be used to seek the Supreme Court’s appellate jurisdiction.

The Supreme Court of India can exercise appellate jurisdiction under the following heads:

1. Authority regarding constitutional matter-Article 132

2. Authority regarding civil matters-Article 133

3. Authority regarding criminal matters-Article 134

4. Authority regarding special leave petition-Article 136

1. CONSTITUTIONAL MATTERS-132
● Under Art. 132(1), an appeal lies to the Supreme Court from any judgment, decree or
final or-der, whether in a civil, criminal or other proceeding, of a High Court if it certifies
that the case involves a substantial question of law as to the interpretation of the
Constitution.
● According to Art. 132(3), where such a certificate is given, any party in the case may
appeal to the Supreme Court on the ground that any such question has been wrongly
decided.
● When the appeal is not competent under Art. 132, the Supreme Court will not hear it
even if the High Court has granted the necessary certificate.
● The implication of Art. 132(3) is that the appellant who comes before the Supreme Court
under this Article is not entitled to challenge the propriety of the decision appealed
against on a ground other than that on which the High Court granted the certificate. If,
however, on appeal, a question is sought to be raised before the Supreme Court, other
than the one on which the High Court has granted the certificate, it is necessary to seek
the permission of the Supreme [Link] means that the appellant should ordinarily
confine himself to the constitutional law point [Link] a restriction is necessary so
that the facility with which appeals in constitutional matters can reach the Supreme Court
may not be misused by the appellant raising all sorts of extraneous pleas once his appeal
has come before the Court on the ground that it involves a substantial question of
constitutional law.

An appeal lies to the Supreme Court after a High Court grants a [Link] a certificate can
be granted if the following conditions are fulfilled:
1. An appeal lies only from "any judgment decree or final or en e explan Court. No ap. peal
lies from an interim order of a High Court. According to the explanation appended to

18
 Art. 132, 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".
2. Article 132(1) uses the expression "civil, criminal or other proceeding". The purpose of
referring to "other proceeding" is to emphasize that adjudications made in proceedings
which cannot be included in the description of civil' or "criminal' would still fall under
Art. 132(1) in case they raise a substantial question of law as to the interpretation of the
[Link] 132 excludes no decision if it involves a substantial question of
constitutional interpretations provided that the decision may be characterized as a
"judgment,decree or final order.
3. The case ought to involve a question of law as to interpretation of the Constitution. It
means that decision on the question of constitutional law should be necessary for the
proper decision of the case.
4. The question involved must be a "substantial question". A question is not substantial'
when the law on the subject has been finally and authoritatively settled by the Supreme
Court, and what remains to be done by the High Court is only to apply that interpretation
to the facts before it.

If the High Court refuses to grant the necssary certificate,underArt132,the Supreme Court can
still hear the appeal under Art.136.

2. CIVIL MATTERS -133

Civil proceeding is one in which a person seeks to enforce by appropriate relief the alleged
infringement of his civil rights against another person or the state, and which, if the claim is
proved, would result in the declara-tion-express or implied of the right claimed, and the relief,
such as, payment of debt, damages, compensation, delivery of specific property, enforcement of
personal rights, determination of status etc.

Under Art. 133(1), an appeal lies to the Supreme Court from any judgment, decree or final order
in a civil proceeding of a High Court if it certifies-
(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.
Article 133 discards the distinction between appellate and original jurisdictions of the High
Court. It includes all judgments, decrees and orders passed in the exercised of appellate or
ordinary original civil [Link] appeal in a civil matter lies to the Supreme Court as a
matter of right. An appeal can lie only on a certificate of the High Court which is issued when
the above two conditions are satisfied.
Under Art. 133(2), any party appealing to the Supreme Court under Art. 133(1), may urge as a
ground that a substantial question of law as to the interpretation of the Constitution has been
wrongly decided.
19
Under Art. 133(3) unless Parliament provides otherwise, no appeal lies to the Supreme Court
from the judgment, decree or final order of a single High Court Judge.
No appeal lies to the Supreme Court, under Art. 133, from the decision of a single Judge of the
Hich Court, but Parliament has power to provide otherwise [Art. 133(3)].

In exercising its jurisdiction under Article 133, the Supreme Court does not ordinarily interfere
with findings of fact and it is all the more reluctant to do so when there are concurrent findings
of the two courts [Link], however, is not an absolute rule. The Court may interfere if
findings of fact are unsupported by evidence on record, or are based on a misreading of evidence,
or on non-advertence to material evidence bearing on the question and to the probabilities of the
case, or where the appreciation of evidence by the court below has resulted in miscarriage of
justice.

3. CRIMINAL MATTERS
● The provisions in the Constitution (Art. 134) regulating criminal appeals to the Supreme
Cour are so designed as to permit only important criminal cases to come before it.
● Article 134 confers a limited criminal appellate jurisdiction on the Supreme Court. The
Supreme Court hears appeals only in exceptional criminal cases where justice demands
interference by the Apex Court.
● In the first place, under Art. 134(1)(a), an appeal lies to the Supreme Court from any
judgment, final order or sentence of a High Court in a criminal proceeding it the High
Court has, on appeal, reversed an order of acquittal of an accused person and sentenced
him to death.
1. Under Art. 134(1)(a) an appeal lies as of right to the Supreme Court.
2. Under Art. 134 (1)(b), an appeal lies to the Supreme Court if the High Court has
withdrawn for trial a case from a lower court and sentenced the accused to death.
3. Under Art. 134(1)(c), the Supreme Court can hear an appeal in a criminal case if the
High Court certifies that the case is a fit one for appeal to the Supreme [Link] Art.
134 (1)(c), prima facie, a High Court appears to enjoy an unqualified power to grant
fitness certificates in criminal cases. But to control the flow of criminal appeals to itself,
the Supreme Court has laid down certain guiding norms for the High Court to follow in
granting such certificates.
● It is to be granted only when some exceptional or special circumstances exist, such as,
infringement of essential principles of justice, or some difficult questions of law of great
public or private importance, or when there has been in substance no fair trial.
● The Supreme Court has frequently impressed on the High Courts that they should
exercise their discretion to grant the certificate not mechanically but judicially.

20
 ➔ The certificate itself should give an indication of what substantial question of law or
principle is involved in the appeal to bring it within the scope of Art. 134(1)(c).Where
the Apex Court has found that the certificate is not in compliance with the requirements
of Art. 134(1)(c), it has declined to accept the [Link] Art. 134(1)(c), the
jurisdiction of the Apex Court is attracted by reason of the certificate granted by the High
Court. Where the Supreme Court declines to accept the certificate under Art.134(1)(c), it
may permit the appellant to apply under Art. 136 in proper [Link] 134(1)(c) is
there to meet only extraordinary cases; normal right to appeal has been given by the other
two clauses of Art. 134 (1). Under Art. 134(1)(c), the Supreme Court does not act as a
general court of criminal appeal.

➔ Under Art. 134(2), Parliament is authorised to enlarge the criminal appellate jurisdiction
of the Supreme Court. Accordingly, Parliament has enacted the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Act, 1970, further authorising the
Supreme Court to hear appeals from a High Court in the following two situations:
1. If the High Court has on appeal reversed an order of acquittal of an accused and
sentenced him to imprisonment for life or for a period of not less than 10 years. In such a
situation, appeal to the Supreme Court lies even on facts and as a matter of right.?
2. The High Court has withdrawn for trial before itself any case from a subordinate court
and has convicted the accused and sentenced him to imprisonment for life or for a period
of not less than 10 years.

Zahira Habibullah Sheikh vs. State of Gujarat (2004): This case involved the Best Bakery
massacre, where several people were burnt alive during the communal riots in Gujarat in 2002.
The case had been marked by witness intimidation and a botched investigation. The Supreme
Court took suo moto cognizance of the matter under Article 134 and transferred the case out of
Gujarat.

➔ ISSUE OF CERTIFICATE BY A HIGH COURT

Appeals to the Supreme Court in constitutional (Art. 132), civil (Art. 133), and criminal matters
(Art. 134) lie on a certificate being granted by the concerned High Court. To facilitate the grant
of such a certificate, and to reduce any delay in completing this formality, certain provisions
have been made by Art. 134A.

A High Court may grant a certificate, if it deems fit to do so, on its own motion. In the
alternative, an oral application can be made on behalf of the aggrieved party immediately after
the judgment, decree, final order or sentence. The High Court can thereafter decide, as soon as

21
may be, whether a certificate may be given in that case to take an appeal from its decision to the
Supreme Court.

There must be exceptional or special circumstances like some difficult question of law of great
public [Link] High Court can issue a certificate only when it is satisfied that the
conditions in Arts. 132, 133 or 134, as the case may be, are satisfied.

4. APPEAL BY SPECIAL LEAVE -ARTICLE 136

Article 136 of the Indian Constitution grants discretionary powers to the Supreme Court of India
to allow special leave petitions. The Supreme Court can use this power in exceptional
circumstances and when a question of law arises. Article 136 only applies to judicial decisions. It
does not apply to purely executive or administrative decisions. The Supreme Court, while
granting a special leave petition, relies upon the facts that are presented to it by the petitioner. So,
the petitioner must not mislead the court by giving improper facts. If the court becomes aware
that the presented facts were misleading, it can revoke the appeal granted to the petitioner.

● Art. 136(1) empowers the Supreme Court to grant, in its discretion, 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.
● Article 136 runs as follows:"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 case or matter passed or made by any court or
tribunal in the territory of India."
● Article 136(2) excludes from the scope of Art. 136(1) any judgement or order passed by
a tribunal functioning under a law relating to the Armed forces.
● Article 136 confers a special jurisdiction on the Supreme Court. It opens with a non-
obstante clause, viz. "Notwithstanding anything in this chapter". This means that the
power of the Supreme Court under Art. 136 is unaffected by Arts. 132, 133, 134 and
134A.

The scope of Art. 136(1) is very comprehensive and it invests the Supreme Court with a plenary
jurisdiction to hear appeals. Article 136(1) is couched in the widest possible terms. The broad
and overriding nature of Art. 136 will be evident from its following features:
1. Under Art. 136, in suitable cases, the Supreme Court can even disregard the limitations
contained in Articles 132 to 134 on its appellate jurisdiction and hear appeals which it
could not otherwise hear under these provisions.
2. Articles 132 to 134 permit appeals only against decisions of the High Courts. Article
136, on the other hand, does not impose any such restriction,

22
 3. The word order' in Art. 136(1) has not been qualified by the adjective "final' as is the
case n Arts. 132, 133 and 134. The Supreme Court thus has power to hear an appeal
even from an inter-ocutory or an interim order.
4. The term determination' in Art. 136 signifies an effective expression of opinion which
ends La controversy or a dispute by some authority to whom it is submitted under a valid
law for disposal.
5. Article 136(1) does not define the nature of proceedings from which the Supreme Court
may hear appeals, and, therefore, it could hear appeals in any kind of proceedings
whether civil, crimi-nal, or relating to income-tax, revenue or labour disputes, etc.
6. Article 136(1) confers on the Supreme Court power to hear appeals from orders and
determination of any tribunal other than a military tribunal. This aspect of Art. 136(1) is
very significant and is discussed in detail below.
7. Under Art. 136(1), the Supreme Court may hear appeal even though the ordinary law
pertaining to the dispute makes no provision for such an appeal.
8. Being a jurisdiction conferred by the Constitution, it cannot be diluted or circumscribed
by ordinary legislative process: it can be curtailed or modified only by constitutional
process.
9. The Supreme Court may hear an appeal even where the Legislature declares the decision
of a court or tribunal as final.

In Jyotendra Singhji v. S.T. Tripathi it has been held that a party cannot gain advantage by
approaching the Supreme Court directly under Article 136 instead of approaching the High
Court under Article 226. This is not a limitation inherent in Article 136 but it is a self imposed
limitation by the Supreme Court.

In Kunhayammed v. State of Orissa, the Supreme Court has characterised its power under
Article 136 as "an untrammelled reservoir of power incapable of being confined to definitional
bounds; the discretion conferred on the Supreme Court being subjected to only one limitation,
that is, the wisdom and good sense of justice of the Judges".

In Durga Shankar v Raghu Raj,the Court has observed:

The powers given by Article 136 of the Constitution however are in the nature of special or
residuary powers which are exercisable outside the purview of ordinary law, in cases where the
needs of justice demand interference by the Supreme Court of the land. The article itself is
worded in the widest terms possible. It vests in the Supreme Court a plenary jurisdiction in the
matter of entertaining and hearing appeals, by granting of special leave, against any kind of
judgment or order made by a court or tribunal in any cause or matter and the powers could be
exercised in spite of the specific provisions for appeal contained in the Constitution or other
laws. The Constitution for the best of reasons did not choose to fetter or circumscribe the powers
exercisable under this article in any way.

23
The Supreme Court has observed in Pritam Singh v The State, that the power under Article
ies to be exercised sparingly and in excepional cases only, and as far as pesane of matters s
unifor standard should and in exceptional special leave in the wide argean grant speciahich can
come up sheid be adoped in granting speciate or insAticle, we cane ang speciahich can come up
shore be adopted in grantin speciate of his Article, we can meant before leave in civil cases, ire it
undr cases, in cleome-tax cases, in cases which come before different kinds of tribunals and in a
variety of cases.

Advisory Jurisdiction of the Supreme Court under Article 143

Article 143 of the Constitution of India confers upon the Supreme Court advisory jurisdiction.

Article 143 Power of President to consult Supreme Court.–(1) If at any time it appears to the
President that a question of law or fact has arisen, or is likely to arise, which is of such a nature
and of such public importance that it is expedient to obtain the opinion of the Supreme Court
upon it, he may refer the question to that Court for consideration and the Court may, after such
hearing as it thinks fit, report to the President its opinion thereon.

(2) The President may, notwithstanding anything in 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 such hearing as it thinks fit, report to the President its opinion thereon.

* * * *

According to Article 143(1), when 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 it to the Court for its
consideration. The Court then may, after such hearing as it thinks fit, report to the President its
opinion thereon. The use of the word 'may' in Article 143(1) of the Constitution shows that the
Supreme Court is not bowed to give advisory opinion in every reference made to it. The
Supreme Court may refuse to give its advisory opinion for strong, compelling and good reasons.

Under Article 143(2), a matter which is excluded from the Supreme Court's jurisdiction under
Article 131 may be referred to it for opinion and the Court shall, after such hearing as it thinks
fit, report to the President its opinion thereon.

24
A report under the above provisions is to be made by the Court in accordance with an opinion
delivered in open court [Article 145(4)] with the concurrence of the majority of Judges [Article
145(5)]. A Judge who does not concur has liberty to deliver a dissenting opinion [Article
145(4)].The reference is to be heard by a Bench of not less than five Judges [Article 145(3)].
Thus, the procedure in respect of the exercise of the advisory jurisdiction has, as far as possible,
been approximated to a judicial hearing.

There is no condition that the President can refer only such questions as pertain to his powers,
functions and duties or those of the Central [Link] President can seek the opinion of
the Supreme Court on any question of law or fact which appears to him to be of such a nature
and of such public importance that it is expedient to obtain the Court's opinion. Of course, in this
matter, the President acts on the advice of the Cabinet.

The court has now clarified that it cannot be asked, under Article 143(1) to reconsided any of its
earlier decision. The President can refer only such legal question as has not been decided by the
court [Link] court has reasoned that when in its adjudicatory jurisdiction, it has pronounced
an authoritative opinion on question of law,there neither remains any doubt about the question of
law nor does it remain res intega so as to require the President to know what the true position of
law on question [Link] court can review its earler decision only under Article 137.

1. Kerala Education Bill

Re The Kerala Education Bill sought the Supreme Court's opinion on the constitutional validity
of certain provisions of the Kerala Education Bill which had been reserved by the Governor for
the President's [Link] of the matter to the Court saved the Central Government
from political embarrassment as well as mollified public opinion and helped in the removal of
the lacunae in the Bill which the Supreme Court pointed out in its [Link] its advisory opinion
in this case, the Court settled the following two significant points concerning the scope of
Article 143(1).

1. The Court rejected the contention that what was referred to the Court for its opinion was
not a statute already put into force, but a Bill which was yet to be enacted. The Court
argued that Article 143(1) does contemplate the reference of a question of law that is
"likely to arise".
2. It was argued that questions about the validity of some other provisions of the Bill also
arose but these were not referred to the Court. Hence, the reference was an incomplete
one and the Court should not entertain such a reference. The Court rejected the argument
saying that "it is for the

25
2. Cauvery Waters

In the matter of Cauvery water disputes tribunal, the main question referred to the court for its
advisory opinion was whether the tribunal established under the interstate water disputes act,
1956 has power to grant and interim relief to the parties to the dispute . In this case again, the
question whether the opinion given the Supreme Court on the presidential for reference under
article 143 is binding on all courts was debated. However, the court refused to express any
definite opinion opinion on the point for two reasons;

1. The specific question did not form part of presidential reference. In the instant case.

2. Any opinion expressed by the court in the instance, case would be advisory.

3. Delhi Laws Act

The Supreme Court’s pronouncement in the Delhi laws act case gave timely guidance to the
central executive regarding the scope and extent of its legislative powers under Delhi laws act. It
thus avoided embarrassment to the central government and difficulties to the people which might
have arising had any act extended to Delhi or any other part state were to be declared ultra vires.

4.6 Article 141- Doctrine of Precedent

Stare decisis is a legal doctrine that obligates courts to follow historical cases when making a
ruling on a similar case. Stare decisis ensures that cases with similar scenarios and facts are
approached in the same way. Simply put, it binds courts to follow legal precedents set by
previous [Link] doctrine of Stare Decisis thus means that courts refer to the previous,
similar legal issues to guide their decisions. Such previous decisions that courts refers to are
known as "precedents".

According to this doctrine, the lower courts are bound to follow such a judgment. This has been
explicitly mandated under Article 141 of the Constitution to give law finality and maintain
consistency and permanence. Article 141 of the Constitution reads thus:

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."

26
 The underlying logic of this doctrine is to maintain consistency and avoid uncertainty . It would
be trite to refer to Waman Rao v. Union of India. In the case at hand, the Court addressed the
question of whether the doctrine of stare decisis could be applied to the Articles of the
Constitution or if it was applicable only to the laws protected by the Articles. The Court ruled in
favour of the latter .Regarding the invocation of the doctrine of stare decisis to uphold Article
31A, the Court in Waman Rao case set aside the question as Article 31A had already been
upheld on its own merits in a previous case.

The rule of precedent has been adopted from English jurisprudence into the Indian Constitution.
Article 141 of the Constitution stipulates that “the law declared by the Supreme Court shall be
binding on all Courts within the territory of [Link] serve to supplement and bridge the
gaps in the legal system where they’re required. Hence, precedents can lay down a rule or law
but cannot alter already established laws. Since these judicial precedents are given by judges,
who are experts in law, they are generally presumed to be right, and it is on this basis that
precedents have an element of authority attached to them.

Hence, one main function of the doctrine is to establish certainty and coherence. In the case of
Minerva Mills v. Union of India (1980), the Supreme Court said that “certainty and continuity
are the essential ingredients of the rule of law”. It remarked that, in case a longstanding
precedent established by the Apex Court suddenly gets overruled, the application of law would
be afflicted by uncertainty and confusion. However, certain judgements clarified what can be
done in case a Bench does not agree with the decision of another Bench. In the case of
Sheshamma v. Venkata Rao (1940), the Madras High Court held that if one Division Bench
does not accept the decision of another pertaining to a question of law, then the matter should be
referred to a Full Bench. This was reiterated again in the case of Yedlapat Venkateswarlu v.
State of Andhra Pradesh (1978), where the High Court said that one Bench should not proceed
to express contrary views to those of another Division Bench without referring the matter to a
Full Bench first.

➔ Ratio decidendi

According to Salmond, a precedent is a judicial decision that contains a principle. This principle
has authority, or the force of law, which will bind the Courts in their subsequent judgements. So,
this authoritative principle in a judicial decision is called the ratio decidendi.

Ratio decidendi literally translates to “reason for deciding”. It is the rationale given by the judges
for deciding a case or reaching a conclusion in a certain manner. A ratio is derived from the
application of the law to the material facts of the case. Thus, it is a statement of applied law on
the facts of the case, and this ‘reason or rationale’ is binding on the subordinate courts while they
decide on cases with similar facts.

27
In the case of Shailyamanyu Singh v. the State Of Maharashtra (2023), the Court clarified that
neither the finding of the facts by the court nor the reasons given for deciding on granting
specific relief can be considered precedent. Only the statement of law applied to the legal issue
raised on the facts based on which the case is decided forms the ratio decidendi, which
constitutes a binding precedent.

In the case of J. J. Sharma Rao Vs Union territory of Pondicherry it was mentioned that a
decision is binding not because of its conclusion but in regard to its rationale and the principle
laid down therein.

➔ Orbiter dictator

Obiter dicta are statements that are not central to any kind of legal reasoning or application of
law but rather are used as an instrument of persuasion by the judges. They provide insights into
the thought process of the judges and gain their views and opinions on a certain legal point. At
times, one can even find suggestions or judges calling out the defects in a certain law through
these obiter dicta. However, even these views, suggestions, and explanations into broader
concepts of law can be given by the judges only if they are strictly relevant to the case in hand
and when they feel a need to speak out for the sake of the public.

However, it is important to note that in the Indian legal system, certain cases have reiterated the
binding capacity of obiter dicta of the Supreme Court over the High Courts and other subordinate
courts. In Hiralal Gnaeshmal Jain v. State of Maharashtra (1992), the judges observed that
even the obiter dicta of the Supreme Court will be binding on them; however, if the point of
issue on which the decision is being made already has a direct decision of the Supreme Court but
there also exists an obiter dicta of the Supreme Court on the same issue but contrary to the direct
decision, then the authority of the direct decision will prevail over the obiter dicta. To put it more
simply, even though the obiter dicta of the Supreme Court may have a binding effect, they
cannot override the direct findings of the Supreme Court itself.

According to the well-settled principles of the law, there are three postulates that every basic
decision can comprise. They are:

1. Finding the proper material facts, whether direct or inferential. An inferential finding of a
particular fact which a judge draws from perceptible or direct facts.
2. The statements of the relevant principles of law which are stated applicable to legal
principles disclosed by the facts.
3. The judgment stated is generally a combined effect of the above-stated postulates.

28
Moreover, in the case of ICICI Bank v. Municipal Corporation of Greater Bombay stated that
the decision given by the apex court must be read in accordance with the context of the statutory
provisions which have been interpreted by the competent court. It has been stated that no
judgment can be read if it’s a statue. Moreover, the law cannot afford to be always static in
nature. Therefore, based on the relevant principles the Judges must apply intelligent techniques
in order to use the precedents.

The doctrine of stare decisis is based on expediency and public policy. It is generally followed
by all the courts, but it is not applicable in all cases, since sometimes if a wrong decision has
been pronounced and the court is satisfied that it should not continue to be followed, it has to
depart from its application. In Maktul v. Manbhari (1958), the Court held that if the validity or
correctness of a decision is being challenged over and over again or has been reversed by the
Privy Council itself, then the doctrine of stare decisis will no longer be applicable. The Supreme
Court, in alignment with the views of Justice Cardozo, has emphasised that it should not engage
in the rigid application of the doctrine of stare decisis and that there should be reformulation and
sometimes even revocation of a certain rule if it does not suit or serve the social consciousness of
the hour. Additionally, it is the duty of the judges to understand the need of the hour and interpret
the rules accordingly.

WRIT JURISDICTION

Writs are a written order from the Supreme Court or High Court that commands constitutional
remedies for Indian Citizens against the violation of their fundamental rights. Article 32 in the
Indian Constitution deals with constitutional remedies that an Indian citizen can seek from the
Supreme Court of India and High Court against the violation of his/her fundamental rights.
Types of Writs in India
The Supreme Court of India is the defender of the fundamental rights of the citizens. For that, it
has original and wide powers. It issues five kinds of writs for enforcing the fundamental rights of
the citizens. The five types of writs are:

1. Habeas Corpus
2. Mandamus
3. Prohibition
4. Certiorari
5. Quo-Warranto

29
 1. Habeas Corpus
The Latin meaning of the word ‘Habeas Corpus’ is ‘To have the body of.’ This writ is used to
enforce the fundamental right of individual liberty against unlawful detention. Through Habeas
Corpus, Supreme Court/High Court orders one person who has arrested another person to bring
the body of the latter before the court.

2. Mandamus
The literal meaning of this writ is ‘We command.’ This writ is used by the court to order the
public official who has failed to perform his duty or refused to do his duty, to resume his work.
Besides public officials, Mandamus can be issued against any public body, a corporation, an
inferior court, a tribunal, or government for the same purpose.

3. Prohibition
The literal meaning of ‘Prohibition’ is ‘To forbid.’ A court that is higher in position issues a
Prohibition writ against a court that is lower in position to prevent the latter from exceeding its
jurisdiction or usurping a jurisdiction that it does not possess. It directs inactivity.

4. Certiorari
The literal meaning of the writ of ‘Certiorari’ is ‘To be certified’ or ‘To be informed.’ This writ
is issued by a court higher in authority to a lower court or tribunal ordering them either to
transfer a case pending with them to itself or quash their order in a case. It is issued on the
grounds of an excess of jurisdiction or lack of jurisdiction or error of law. It not only prevents
but also cures for the mistakes in the judiciary.

5. Quo-Warranto
The literal meaning of the writ of ‘Quo-Warranto’ is ‘By what authority or warrant.’ Supreme
Court or High Court issue this writ to prevent illegal usurpation of a public office by a person.
Through this writ, the court enquires into the legality of a claim of a person to a public office

30