Introduction
In ancient times, when any wrong was done, it was on the king to ensure that the culprit was punished so that the victim gets relief. After the constitution has been adopted This function of the king has been replaced by the Judiciary whereas the other functions such as making the law and executing them are done by the Legislature and the Executive.
In order to ensure transparency and fair work in the system, the constitution-makers kept these three organs independent of each other. The Judiciary is the ultimate interpreter of the rights while it acts as a guardian of the constitution. It can also conduct checks on the legislature and the executive and ensure that no one goes beyond their ambit of power. The Constitution ensures that the judiciary remains even-handed in all circumstances.
We have different levels of Judiciary which is present at the central level, the state level, and district level. In Part V of the constitution, chapter IV concerns the Union Judiciary. It consists of the Supreme Court and in this article, we would only be dealing with the Union Judiciary in depth.
Supreme Court – The Guardian of the Constitution
There can be discords arising in between the different units of the federation, that is when the Supreme Court comes into play. It’s the highest authority and the final interpreter of the law which means that it has the power to give final decisions on all the matters of the law. Its judgments are binding on all the lower courts. It has the power of judicial review through which it can review the action of the executive and the legislature.
Let’s look at Article 124 and what it says.
Article 124 of the constitution,
The first part of this Article provides for the setting up of the Supreme Court which will be composed of one Chief Justice of India and only seven judges until the Parliament by law prescribes any more judges.
- The second part of this Article states that the Chief Justice of India will be appointed by the President after consulting other judges whom he thinks suitable and will hold the office until he attains the age of 65 years. Whereas the president will have to take into account the Chief Justice’s opinion when he appoints the other judges.
- This Article in its part 2(a) says that a judge can by writing to the President, resign from his position, whereas,
- this Article in its part 2(b) says that the judge can be removed under the provision contained in clause 4.
We will be dealing with this Article in detail, under the upcoming topics.
Appointment of the Chief Justice of India
According to Article 124(2), the Chief Justice of India will be appointed by the President and in pursuance of that, the President has to consult the judges of the Supreme Court and the High Courts which he thinks necessary. The president should also have a warrant regarding it.
The provision for the appointment of Chief Justice experienced many changes during the passage of time.
In this article, we will be discussing them in length.
Composition of the Court
With respect to Article 124(2), the number of judges was only limited to seven but the parliament by law prescribed & amended that the number of judges should be increased to thirty-one, i.e thirty judges and the Chief Justice of India.
This was done with a rationale that seven-judges will not be able to suffice the work, the Judiciary undertakes. In order to work efficiently, the number of judges should be increased otherwise the cases will keep on piling up and there will be more scenes of injustice.
Appointment of the Judges-Position before the 99th Amendment of Constitution
After the adoption of the constitution, the tradition regarding the appointment of judges was that the senior-most judge was chosen as the Chief Justice of India whereas the Chief justice of India was consulted by the President, along with some other judges of the High court and Supreme court for the appointment of the judges of these two courts.
After some years, this tradition came to an end and the judges were selected according to their merit and not in accordance with their seniority.
To illustrate, suppose there is a judge and he has three senior judges above him but the President thinks that he is more capable of taking the position of the Chief Justice of India. So, he is appointed, leaving behind the seniority factor.
This led the senior-most judges to resign from their seats as the promotion to the designation of the Chief justice was their aim and experiencing a judge who is junior to them getting promoted to that post was a disrespect to them.
Well, this custom came to an end and the earlier method had a comeback when the old government was replaced by a new one. Again the promotion on the basis of the seniority method was reinstated. But the controversies didn’t end, the questions on the independence of the judiciary started to build up.
After which three cases were decided which brought the system of collegium into existence.
We will now look into these three cases.
Supremacy of Executive
[Judges Transfer Case I]
Judges Transfer Case I is known as SP Gupta v. Union of India.
This case ruled out that, whenever there is an issue between the different constitutional agencies, then the decision of the central government will prevail and the government will choose as to which view of the constitutional agency will be taken into consideration. Whereas, when the appointment of the Supreme Court judges is concerned then the opinion of the Chief Justice of India will not be in concurrence and it will be on the government to take the final decision.
As far as the word ‘may’ in Article 124(2) is concerned, the court stated that it only implies taking decision regarding which judge of the Supreme court and the High court has to be consulted while appointing the judges of the Supreme Court and High court, whereas it does not give an option to the government to take into consideration the opinion of the judges.
In this case, the supremacy of the Executive was maintained.
Judicial Supremacy
[Judges Transfer Case II]
Judges Transfer Case II is known as Supreme court Advocates on Record Association v. Union of India.
The system which was laid down in the first judge case created many problems. Let’s take one as an example – when the Chief Justice of India was asked to give his opinion, he let a junior judge take the position of the CJI without giving a chance to the senior judges.
So, it was decided that there should be a collegium system which in the case of the Supreme Court will consist of the Chief Justice of India and two senior-most judges. And, while taking the decision as to who would take the post of CJI both of the judges of the collegium will give their opinion and CJI will have to take that into consideration. After that, the decision of the collegium will go to the President for his assent. Whereas, in the case of High Court it will be the Chief Justice of the High Court and the two senior-most judges, and the procedure thereon, is the same as for the SC.
Now what really happened was that the Chief Justice of India, at times did not consider the opinion given by the other judges and would take the decision of his own and pass it on to the President for his assent.
This case basically maintained judicial supremacy. Moreover, It ruled out the judgment of the first judge case and laid down the formation of the collegium system.
Expansion of the Collegium
[Judges Transfer Case III]
Judges Transfer Case III is known as In Re Special Reference Case.
Well, the Judicial Supremacy continued to be in existence. Whenever the opinion of the collegium was not taken into consideration, it was not acceptable to the CJI.
This continued until the Executive approached the court for an advisory opinion of the Supreme Court.
Further, the court ordered to increase the number of judges in the collegium from two to four.
It also ruled out that the most senior-most judge will take the designation of CJI and as far as the judges of the Supreme court are concerned, the Supreme Court collegium will recommend the president to which he will give his assent.
Sole Opinion of Chief Justice of India without following consultation process: Not binding on Government
Judges Transfer Case III made it clear through its judgment that whenever the Chief Justice of India conveys to the President, his opinion without taking into account the opinion of the collegium then the opinion of the CJI alone, will be rejected until he follows the constitutional mandate.
To give an example, in 2018, Senior Advocate Indu Malhotra was recommended by the collegium consisting of Justice Deepak Misra, then Chief Justice of India.
National Judicial Appointments Commission
National Judicial Appointments Commission was introduced by 99th Amendment Act in 2014. As a result of which, two Acts were born, one of them stated the removal of the collegium system and the introduction of the National Judicial Appointments Commission and the second Act gave the process of the appointments mentioned in the first Article. This Amendment Act introduced Article 124A, Article 124B and Article 124C of the Constitution. It was passed by both the Houses of the Parliament in August 2014 while it received the assent of President in December 2014.
Many petitions were filed against this Amendment with the contention that it was against the separation of powers and it questions the independence of the judiciary as the members of the Executive were present in the NJAC.
After this, the case was referred to a five-judge bench that struck down the Amendment Act on the basis of unconstitutionality by a ratio of 4:1.
The Provisions of the National Judicial Appointments Commission
[Article 124A]
The 99th Amendment Act introduced a new Article 124A in the constitution. This Article mentioned the members who would form the composition of the National Judicial Appointment Commission.
According to this Article, the National Judicial Appointment Commission will consist of the following people-
- The Chief Justice of India
- Two senior-most judges of the Supreme court
- The Union Law Minister
- Two eminent people nominated unanimously by the Chief Justice of India, the Prime Minister and leader of the opposition of the Lok Sabha
One member out of the two eminent people will be either be a woman or one belonging to the minority section or to the backward classes such as SC, ST, OBC, etc.
They will be nominated for a period of three years and cannot be renominated again.
Functions of National Judicial Appointments Commission
[Article 124B]
Along with Article 124A, the 99th Amendment Act also stated for the insertion of Article 124B.
This Article provided for the functions of the National Judicial Appointments Commission(NJAC) which are as follows-
- This body will recommend people for the position of the Chief Justice of India, judges of the Supreme Court, Chief Justice of the High Court, and judges of the High Court.
- This body will also recommend the transfer of the Chief justice of the different High courts from one High Court to the other.
- It will thoroughly ensure that only the people who are capable to be promoted to these designations, get promoted.
Procedure for appointment to be regulated by the Parliament
[Article 124C]
Article 124C states the following:
- Parliament may enact any law to amend the provisions of the appointment of the Chief Justice of India, the judges of the Supreme court, or the Chief justice of the respective High Courts and the judges of the High Court.
- This Article enables the NJAC to enact by regulation any law that governs the functions of the NJAC, selection of the people for the post or any other matter that concerns the functioning of the NJAC.
Well, this article is considered as a contentious Article on the ground that, it allows the Parliament to appoint the judges of the Supreme court and the High Court which was against the concept of Separation of Powers. Besides, it gives the Nation Judicial Appointment Commission the power to make rules for itself.
[Supreme Court Advocates-on-Record Association v. Union of India, 2015]
In 2015, petitions were filed by the “Supreme Court Advocates on Record Association” and some of the senior advocates which challenged the constitutional validity of the National Judicial Appointment Commission and the 99th Amendment Act.
The contentions were regarding the independence of the Judiciary that it violated the provision of the constitution according to which the judiciary was kept independent to ensure bonafide acts.
Main points of Judgment of Justice Jagdish Singh Khehar – Fit to hold the office
This case was heard by the bench of five judges that involved Justice Jagdish Singh Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Joseph and Justice Adarsh Kumar Goel. it was decided by the ratio of 4:1 with Justice J Chelameswar giving a dissenting opinion.
Justice Jagdish Singh Kehar gave the opinion that the clause (c) of Article 124A(1) is ultra vires with the basic elements of the constitution that is “Separation of Powers” and the “independence of the Judiciary”. He also stated that clause (d) of the same Act which talks about the appointment of two eminent persons is violative of the elements of the constitution and the basic structure for many reasons.
Seniority: Section 5(1) of the NJAC Act
Section 5(1) of the National Judicial Appointment Commission says that if the senior-most judge of the Supreme Court is fit to hold the office then he will be chosen as the Chief Justice of India.
This section makes sure that the possibility of a junior judge superseding the senior-most judge is mitigated.
Whereas, Section 5(2) of the NJAC of the National Judicial Appointment Commission says that the appointment of judges of the Supreme Court will be done on the basis of merit and other criteria specified in clause 3 of Article 124.
Veto power to any two members of NJAC: Section 6(6) of the NJAC Act
In this article, we have learned that two eminent people will be appointed in the NJAC who will be a part of appointing the Chief Justice of India. Now, think about two people who are not accustomed to the judicial procedure and are a layman in the field of law, are appointed as the two eminent people by the reason of which they get to decide the next Chief Justice of India. Also, they have been given the veto power through which they can supersede even the judgment of the present Chief Justice of India, who is also a member of the NJAC.
This was contrary to the provisions given in Section 6(6) of the National Judicial Appointment Commission. This Section stated that if any of the two members of the Commission disagree on the matter concerning the appointment of Chief Justice of the High Court then the commission will not recommend the person to that post.
NJAC Act could not come into effect prior to the coming into operation of the Ninety-ninth Amendment Act of the Constitution
Ninety-ninth Amendment came into existence in 2014, three new Articles were inserted in Section 2 which were Article 124A, Article 124B, and Article 124C.
Herein, the provision for the NJAC was laid down. The National Judicial Appointment Commission Bill was passed by the Lower House on August 13, 2014, and by the Upper House on August 14, 2014. After which it received the assent of the President in December.
But both the 99th Amendment Act and the National Judicial Appointment Commission were struck down on the basis that it was violative of the basic elements of the Constitution.
For the enactment of NJAC Act procedure provided under Article 368 need be followed
In the Kesavananda Bharati v. Union of India, it was stated that any changes made in the constitution, through amendments, should only be to an extent that it does not violate the basic structure of the Constitution.
In order to enact the NJAC Act, it was necessary to take into consideration the basic structure provided under Article 368. On consideration of the same, it was found that it was hindering the basic structure of the constitution which was the concept of ‘separation of powers’. Therefore the NJAC Act was made null.
An ordinary Legislation can be invalidated for violating the constitutional provisions
The Forty-second Amendment which came in the year 1976 introduced various new Articles.
Article 32A disabled the Supreme Court to decide the constitutionality of any state law until it involves the constitutionality of any central law. Furthermore, through Article 131A, the Supreme Court was given the exclusive jurisdiction to check the constitutionality of the central law.
Whereas under Article 228A, the High Court was given a right to decide the constitutional validity of any state law. This law had to be decided by the High Court through a five-judge bench.
Any Act of legislation not found to be consistent with the provisions of the constitution will be stated as unconstitutional.
Article 124-A is the edifice of the Constitution (Ninety-ninth Amendment) Act
Article 124A of the 99th Amendment Act is the edifice of the whole 99th Amendment Act, as it carries the entire structure of the Amendment Act and if it is rendered negatory then the Articles 124, 124B, 124C, Article 127, Article 128, Article 217, Article 222, Article 224, 224A, Article 231 will be restored back.
To give an example, Article 124A(1) provides for the formation and the composition of NJAC, so if it is rendered invalid then the whole NJAC will be rendered unconstitutional and the 99th Amendment Act will be of no value.
Let’s see what Justice Madan B. Lokur said on this.
Justice Madan B. Lokur
In his judgment, Justice Madan B. Lokur said that Article 124A was against the basic structure of the Constitution and without it, the other provisions can not stand.
Further, he pointed out that it also affected the President and the Chief Justice of India as the President was only left to take the recommendations whereas the CJI had to take into consideration the opinion of other people of the Commission.
Justice Kurian Joseph
Well, the eminent Judge stated a maxim in his judgment which was “Entia Non Sunt Multiplicanda Sine Necessitate” which literally means that things should not be multiplied without necessity. He emphasized delivering his judgment in simple language, through which he stated that involvement of any non-judicial body which here is the Executive will follow many structured bargains and if not that, it could lead to anything more worse. He further added that anything which dilutes the supremacy of the constitution should be nullified at its beginning.
Justice Adarsh Kumar Goel
The learned judge stated that the role of a non-judiciary post and the judges of the High Court and the Supreme Court is very different and they can be compared, therefore giving the veto power in hand of the non-judicial person who can overrule the power of the CJI is completely arbitrary.
Guidelines for improvement of the collegium system
While Justice Madan B Lokur in his judgment, emphasized on improving the collegium system, after which a memorandum of procedures came into existence which issued guidelines for amending the collegium system.
Eligibility criteria
With the views of the state government and central government considered, the MOP will check the minimum age requirement.
Transparency in the appointment process
Transparency in the appointment of the judges is of utmost importance. The bench said that every proceeding and all the matters related to the appointment of judges should be updated on the website of the Ministry of Law, the Supreme court and the High court, whereas, every part of the discussion regarding it should be recorded.
Secretariat
For the better functioning of the collegium, a secretariat should be established for each High Court and the Supreme court.
It will ensure better procedures for the appointment of judges.
Complaints
Complaint redressal is very necessary to ensure that all the functions are properly performed and all duties are properly disposed of. Therefore, a proper complaint mechanism should be formed.
Qualification of Judges
Article 124 in its clause (4), provides a checklist for the qualification of the judges of Supreme court which is as follows-
The person,
- Should be a citizen of India,
- Should have been a judge of the High Court or of at least two courts in succession, for a span of five years,
- Should have been an advocate of the High Court or at least two courts in succession, for a span of 10 years,
- And should be a distinguished jurist in the eyes of the President.
Tenure and Removal of Judges
According to Article 124(2), the judges of the Supreme court will hold their office until they reach the age of 65 years. That is they will get retired at the age of 65 years.
As far as the removal is concerned, Article 124(4) mentions that the judge can be removed on the ground of proved misdemeanor, the process for which is that the President will pass an order which will then be presented before both of the houses and it should pass with two-third majority of the members of the house present and voting.
We must not forget that the President should be proved incapable or guilty of his act. It can be proved through the procedure for the investigation regarding the same matter and the following procedure has to be laid down by the law of the Parliament. This right is given to the Parliament under Article 124(5).
Judges (Inquiry) Act, 1968
In this Act, the procedure for the investigation into the charges against the judges was laid down.
The Judge can only be removed after proven misbehavior or incapacity.
This Act further specified that it will consist of the following people-
- Any judge of the Supreme court, or the Chief justice of the Supreme court,
- Any Chief Justice of the High Court, and
- Any person who is a distinguished jurist in the opinion of the Speaker.
These members will unanimously frame charges against the judge and will investigate it.
Salaries and Allowances
Article 125 talks about the salaries and allowances to be given to the Judges of the Supreme court.
- In clause (1), it was mentioned that the judges of the Supreme Court will be paid the salaries determined by the Parliament by law. This is present in the second schedule until any other law regarding the salaries is made.
- In clause (2), it was further mentioned that the judges will get privileges, allowances, and rights regarding leave of absence and pension with respect to the law prescribed by the Parliament.
Now, the Parliament by law can alter the rights that may hamper the judge’s position. But this Article makes sure that it should not happen as it states further that, the Parliament should not enact any law which will stand as a disadvantage to the position of the judge after he has been appointed.
Acting Chief Justice: Article 126
Article 126 talks about acting Chief Justice, let’s have a look.
Anytime during the tenure of the Chief Justice of India, if he is absent and is not able to dispose of his duties or his office is vacant for any reason, then the acting Chief justice will discharge the duties of the Chief Justice of India.
The seat of the Supreme Court: Article 130
In Article 130 it is mentioned that the Supreme Court will be seated in Delhi. Well, it is not a hard and fast rule but can be flexible as the Chief Justice of India may specify from time to time, which should be approved by the President.
Jurisdiction of the Supreme Court
(1) A Court of Record
- The jurisdiction of the Supreme Court under Article 129 is independent of the Courts Act
Contempt of court takes place when any person disobeys the orders of the court or through his demeanor disrespects the court.
Court of Record is that the proceedings of the court will be recorded so that they can act as a testimony in the future.
Well, Article 129 makes the Supreme Court the court of record and gives it the power to punish for its contempt.
PN Duda V. V.P. Shiv Shankar & others
In this case, it was ruled out that a person who has been punished for contempt should have caused hindrance to the procedure of the court and administration of justice whereas, no one should be punished for criticizing the judicial system.
Supreme Court’s power to punish for contempt of itself as well as subordinate courts
Article 215 of the Constitution does not empower the High Court to punish for contempt of the Supreme Court but the Supreme Court has the power to punish for contempt of High court and other subordinate courts.
In case, the Supreme court does not punish for its own contempt then the High Court has no say in it.
Contempt jurisdiction for protection of Registry
Supreme court has not only maintained the contempt of court in order to punish people to harm the judge’s reputation but also to protect the name of the Judiciary.
To give you an illustration, an advocate was barred from practising law for one month because he accused the registry of the court wherein he wrote the word ‘bench hunt’.
The Court ruled out that the bench is not constituted by the registry but by the Chief Justice of India and the contempt of registry shall be punished.
A Minister or official may also be guilty of contempt when the Contempt of Court is committed by the State
When there is an issue before the court which is between the states on both sides of the state is one of the parties and the court give an order or decree which the state disobeys then the Supreme Court can make the State guilty of contempt.
The officials and ministers involved in the case will be thereto made liable for the same.
The Court’s unlimited power to compel obedience and compliance of its orders
Under Article 142, the Supreme Court has been given the power to make an order in regard to the contempt of Court.
That is, the Supreme Court can compel any person under this Article to obey the order which it has given.
(2) Original Jurisdiction-Article 131
The Supreme Court has original jurisdiction when it comes to matters related to the following-
- Between the Government of India and one or more than one states; or
- Between government of India and one or more states at the different sides; or
- Between two or more than two states.
It is further provided that its jurisdiction shall not cover the matter arising out of any agreement, engagement or any sort of treaty, which was present before the pre-constitutional time and is still in force. It also extends to the matters which provide that this jurisdiction shall not apply to the respected dispute.
Enforcement of Fundamental Rights
Article 32 of the Indian Constitution states that if any fundamental right is infringed, then the person can approach the Supreme Court.
This Article provides for the issue of writs which include Habeas corpus, mandamus, Certiorari, Quo warranto, Prohibition.
After issuing these writs one can directly approach the Supreme Court for the enforcement of the Fundamental Rights.
(3) Appellate Jurisdiction–Article 132
Article 132 provides that the appeals for the High Court of any state can be brought up in the Supreme Court for civil as well as criminal matters.
It is provided that the case should involve some substantial question of law under Article 134A.
When all of the parameters are met then the certificate is granted under which any person can approach the SC on the basis that his or her case has been wrongly decided.
An appeal in Civil matters
Article 133 talks about the appeal in the case of constitutional matters.
Let’s have a look at it-
- It says that the appeal shall lie to the Supreme court only if the High Court certifies that it fulfils the condition given in the Article 134A which says that the matter should contain a substantial question of law and in the opinion of the High Court the matter should be passed on to the Supreme Court.
- This Article again emphasizes in its clause (2) that a question of law should be wrongly decided by the High court.
- In its clause (3), it states that notwithstanding anything stated in this Article, any appeal will not lie before the Supreme Court until the Parliament specifies.
An appeal in Criminal Cases-Article 134
Article 134 says about the appeal to the Supreme Court when the matter is of criminal nature. Let’s have a quick look at it-
The appeal would lie before the Supreme Court when the High Court-
- On appeal, has reversed the acquittal of the person and he has been sentenced to death; or
- Withdraws any case from a subordinate court and has announced the conviction of the person or death sentence; or
- Has considered the case to be fit to be presented before the Supreme Court on the basis of Article 134A.
Certificate for appeal to the Supreme Court
As mentioned earlier in this article, Article 134A provides for a checklist to certify that the case is fit to be presented before the Court. This article basically provides the certificate for the appeal to the Supreme Court.
These checkpoints are as follows-
- If the High Court deems it fit to do so in the motion of its own.
- If the aggrieved party just after the judgment is passed makes an oral application.
- The decisions are to be made with respect to Articles 132(1), Article 133(1) and Article 134(1)
Power of the Supreme Court to withdraw and transfer cases Article 139-A
Article 139A gives power to the Supreme Court to withdraw the cases from the High Court if they are pending and it is believed by the Supreme Court that it involves important question on law.
Another instance in which the Supreme Court can do so is when the Attorney General of India or the aggrieved party writes to the SC mentioning that the case carries a question of law of general importance.
Federal Court’s jurisdiction to be exercised by the Supreme Court- Article 135
The federal courts were established before the commencement of the constitution wherein some laws were passed. Now if the provisions which are given under Article 133 and Article 134 do not apply to those laws, then the Supreme Court will have the jurisdiction over it under Article 135.
Appeal by Special Leave- Article 136
Article 136 enables the Supreme Court to grant special leave of appeal for any order, judgment or sentence which is passed by any court or tribunal in the country.
It is regardless of anything contained in the chapter concerning the Union Judiciary and do not apply to any matter concerning Armed forces.
The Court not competent to judge economic policy of the Government
The economic policies laid down by the government are subject to legal restraint that it cannot be reviewed by the judiciary.
The rationale behind it is that the judiciary is an expert in the field of law whereas interpreting economics policies would require an expert who has the knowledge of economics.
The work of the judiciary is to decide the matter between the two parties whereas the policy adjudication will have many views.
In TN Govarnam Thirumulkpad v. Union of India, the judiciary took the matter related to the Forest Conservation Act,1980. This case required technical as well as expertise on some matter but the Supreme Court arranged by appointing the experts related to the matter. So here the Supreme Court was able to fill up the need required to take up policy matters.
But after all, the resources like appointing technical experts were to be arranged which are already present in the legislature and the executive per se. But the judiciary can pick up the policy matters which it considers carries injustice.
Power to grant special leave to appeal to be exercised in exceptional cases
We will discuss some cases relating to it.
Pritam Singh v. the State
In this case, it was ruled out that the special leave to appeal will only be granted under special circumstances where grave injustice is done and the court checks it and bestows justice.
The court emphasized on setting up of a standard for granting special leave of appeal.
N Suriyakala V. A Mohan Doss
In this case, the court ruled out that the granting of Special Leave of Appeal is not a usual action taken by the Supreme Court but only when the SC has to interfere in the case under its own discretion.
Concurrent findings of the Trial Court and the High Court
Let’s consider a case regarding it,
M.Vadivel vs Arulmughu Iravatheeswarar Koil
It was contended in this case that the Supreme Court under Article 133 can undertake any matter as it has been not stated anywhere in the chapter of Union Judiciary that the concurrent findings of the Trial Court and the High Court can not be reviewed.
It was held that the concurrent findings of the trial court and the High Court have been brought up by deep knowledge of the court by considering matters of both of the parties. Hence the Supreme Court interferes only in exceptional cases when there is a grave injustice.
New Plea on Facts
The Supreme Court does not allow the facts to be raised in the court when they were not raised in the first place during the proceedings of the subordinate court. Therefore new facts are inadmissible.
Let’s look at a case.
Jagannath Behera V. Raja Harirar Singh
In this case, the new fact was whether any special laws or traditions prevailed in a merged territory. This fact was not presented before in any court and for the first time in the Supreme Court, therefore it was inadmissible.
Gopinath Ghosh V. State of West Bengal
In this case, it was brought for the first time to the knowledge of the Supreme court that the accused was below 18 years of age when the crime took place. Hence, it too was inadmissible.
Plea of Law
In cases where a question of law was not presented before in any court, the Supreme Court will allow it to be raised for the first time.
Badari Prasad V. Nagarmal
In this case, a question was raised stating that section 4(2) of the Rewa State Act as unconstitutional. This question was raised for the first time in the Supreme Court and it was allowed by the court.
Masalti V. State of UP
In this case, it was ruled out that any question of law that is material to the facts will be admissible even if it is presented for the first time in the Supreme Court.
A private party can file an appeal under Art.136 challenging acquittal
Supreme court under Article 136 considers special leave to appeal. But the question of whether the private party has a locus standi to file the appeal has to be understood.
Let’s have a look at the cases to know the answer.
A petition was filed by Prisoners Right Forum which was related to a death sentence of the prisoner which was dismissed by N. Anand Venkatesh, who stated that any third person can not file an appeal regarding it.
And if it is allowed, any bystander will be able to file an appeal revoking the judgment of the subordinate court.
When no challenge to the main judgment
No appeal can be filed against the judgment of the Court which is passed with the consent of the parties. An appeal can only be placed regarding a question of law.
False and misleading statements – Justification to revoke the appeal
When any party presents before the court during the hearing of an appeal, any false statements or the facts which are misleading, then the Supreme court can revoke the appeal.
In SN Aggarwal V. Union of India, false facts were presented which affected the decision and discretion of the court. In this case, it was ruled out that the Supreme court has the power to set aside the appeal and it will be justified.
Tribunals
As the tribunals were set up to reduce the workload on the Courts, any appeal from the tribunals can be presented before the Supreme court until there is no provision of Appellate tribunals. If there is then Appellate tribunals will hear the appeals for the Tribunals.
Power to review its judgments Art 137
Under Article 137, the Supreme Court has the power to review its judgment.
It is subjected to the provisions of law and provisions under Article 147.
It is basically a mechanism provided to the Supreme Court to amend its mistakes.
Curative Petition
The remedy of the curative petition was introduced by the Supreme Court in the case of Rupa Asok Hurra V. Asok Hurra.
A curative petition is the last remedy provided for any grievances. Its counterpart is the mercy petition which is filed before the President.
It was also filed in the famous Delhi rape case.
Ancillary Powers of Supreme Court.
Article 140 enables the president to make law regarding any supplementary right which can be given to the Supreme Court. This right should not be against the provisions of the law.
It will enable the Supreme court to work more effectively towards the goal of bringing justice to the people.
Advisory jurisdiction-Article 143
If at any point the President feels like a matter carries substantial question related to law and is of public utility then he can approach the Supreme Court for Advisory jurisdiction.
Supreme Court after hearing it may give his opinion to the President.
This is the procedure of Advisory jurisdiction which is present in Article 143 of the Constitution.
Law declared by the Supreme Court to be binding on all Courts- Article 141
Supreme Court is the highest organ of law and the decision it takes is of utmost importance. The rule to follow its decision will lay down a structure of procedures which will act as a guideline for the lower courts to follow in cases where similar facts are contained.
Article 141 states that the judgment of the Supreme Court is binding on all the lower or subordinate courts.
Supreme Court not bound by its own decisions
Article 141 obligates other subordinate courts to follow the judgments of the Supreme Court and stand by its decision which is the principle of Stare Decisis. But the Supreme Court is not bound by its own judgment.
It believes to follow its earlier judgments until there is a case of diminishing circumstances.
Ratio-decidendi
The part of the judgment that lays down the rationale of the decision is called ratio- decidendi. It is important to consider the ratio decidendi of the judgment as it lays down the rule of law.
Prospective overruling
The motive of following a judicial precedent is to maintain the old laws and follow them and not to invent new laws every day. The overruling of a precedent is done when it is followed by injustice to people at times, so in order to prevent it, the Doctrine of Prospective overruling is followed.
The Doctrine of Prospective overruling lays down the mechanism according to which, the law which has arisen out of the case which has overruled a previous judgment, will be followed.
This Doctrine was first reinforced in the case of I.C. Golakhnath V. State of Punjab, where Justice Subba Rao invoked it. He had taken it from the American law where various eminent jurists spoke about it.
Obiter dicta
As in this article, we have already discussed the Ratio Decidendi which was an important part of the judgment. Well, here Obiter Dicta is the other half of the judgment which is not the important part and can be ignored while considering the facts of the judgment. In case one has to go through the thought process and the opinions of the judge who wrote that judgment, he or she may give it a read.
Overruling not by co-equal Bench
In Siddharam Satlingappa Mhetre v. the State of Maharashtra, the court ruled out that a judgment by a larger bench will be binding on the smaller bench and co- bench.
But what happens if there is a conflict between two co-bench regarding the judgment?
This is answered by the case of the State of MP v. Mala Banerjee, which stated that in cases of such conflicts, the matter should be presented before a larger bench.
Enforcement of Decree and Orders of Supreme Court: Article 142
Article 142 says-
- The Supreme Court in order to make sure that justice is done can pass any order or decree.
- It was further stated in clause (1), that when such order or decree is passed then it will be enforceable in the entire country under the provision made by the law of the Parliament and if there is no provision regarding it then the provision made by the President will be considered.
- The Supreme Court has the power to issue an order or decree in order to secure the attendance of the concerned person, the discovery or production of any of the related documents, or the investigation or punishment of any contempt of itself which will be subjected to the provision laid down by the Parliament.
Ex-gratia grant
[Santosh Devi v. Union of India, 2016]
Looking at the case of Santosh Devi v. Union of India, we will understand the concept of the ex-gratia grant.
In this case, it was ruled out that the procedure for the compassionate appointment of a member of a family in place of a deceased member of the same family should only be done after taking into consideration that the sudden demise of the member affects the conditions of the family economically or the member was the only earning member of the family and after his demise, someone needs to take his place.
Dissolution of marriage by mutual consent waiving the statutory period of waiting
To illustrate and understand the topic,
In July, a couple got married after which due to instances of domestic violence both of them started living separately. After which they approached the family court for this matter and applied for a divorce by mutual consent.
The family court in that matter ordered them to live separately for a period of 6 months. Later on, the woman wanted to marry a man who was a non-resident of Australia.
The High Court set aside the 18 month separation period after the women filed a petition for it.
The Supreme Court in this matter ruled out that in the case when the divorce has taken place with the mutual consent of both parties to the marriage, the rule of six month period of separation can be skipped.
Dissolution of marriage if it is totally unworkable
Since a broken marriage can not be reversed so the Hindu Marriage Act and the Special Marriage Act take care that the marriage which still has some hopes should not be broken.
Supreme Court ruled out that only the marriage which has become dead in emotional terms and is totally unworkable should be dissolved through the process of divorce.
The couple who is living separately for years is not getting divorced due to the long mechanism involved in it. It makes it impossible for them to explore their lives while still stuck in the past marriage which is dead to them already.
Many have recommended to invoke Article 142 and introduce irretrievable breakdown as a cause for the dissolution of marriage.
Enforcement of guidelines and directions to provide immediate help to the victims of accidents and to protect good Samaritans
A good Samaritan is a person who, with bonafide intention and without wanting anything in return for the act he will do, steps forward to help or provide assistance to a person who has got injured in an accident or a crash and is in an emergency and needs medical help immediately.
Well for his amazing acts, the good samaritan is provided safety under many guidelines which are as follows-
- No investigation on criminal and civil matter will be initiated against the good Samaritans if any injury or death of the injured takes place
- The good samaritan will not be forced to reveal his personal details if he informs about such an accident or the injured person involved.
- Any person who forces him in revealing his personal information will be punished.
- The good samaritan will not be liable to bear any initial cost of the treatment of the injured person.
[Savelife Foundation v. Union of India, 2016]
Savelife Foundation v. Union of India mainly was concerned with the provisions related to the ambulance codes, emergency procedures, the process to be followed by the hospitals that are situated in the highways and the procedures related to the management of the trauma struck, injured person during the accident.
Power of the Supreme Court to make rules
The Supreme Court is the highest judicial functionary of the Constitution.
The Constitution of India under Article 145 gives the Supreme Court of India, the power to make its own rules. It should be consistent with the law of the parliament and should be made with the permission of the President. These rules are generally made for the procedure of the Court.
These rules may include-
- Rules regarding the person who is practising before the court
- Rules related to the hearing of appeals by the Supreme Court and all the matter regarding it.
- Rules regarding the proceedings of the court.
- Rules for the enforcement of fundamental rights.
- Rules in relation to the granting of bail
- Rules related to the stay on the procedures
- Rules considering the procedure of inquiries
This Article further provides that in regards to it, the Supreme Court will also provide for the number of judges who will sit to decide in this matter. It also provides for the powers to be conferred with division Courts and single judges.
It confers power on the Supreme Court to decide the number of judges to decide the matters that involve a substantial question of law.
Conclusion
[How is the independence of Judiciary maintained under the Constitution]
“We should interpret the constitution as it is and not according to what we think it should be. We will always come across some ways by which the spirit of the Constitution of India can be amended but then we will be rewriting the Constitution in the guise of interpreting it”. This was said during the judgment of a case, by the eminent jurist, PN Bhagwati.
The Constitution of India provided for the concept of separation of powers and the basic feature of the Constitution was the independence of the judiciary.
While India witnessed cases like the First Judges Case, Second Judges Case and the Third Judges Case, where it saw the revocation of separation of powers and the independence of the judiciary. But after every instance, the Judiciary still stood independent
As the National Judicial Appointment Commission(NJAC) and the ninety-ninth Amendment saw their demise, the basic feature of the constitution was restored back.
It should not be forgotten that the basic structure is the essence of the Constitution and under no circumstances, it should be altered or eliminated as it is essential for the fair mechanism for the administration of justice. Our Judiciary should stand independent as the framers of our constitution intended and we should respect and ensure that.