Writ Jurisdiction (Article 32)
Article 32 confers writ jurisdiction on the Supreme Court for the enforcement of Fundamental Rights. In the exercise of this jurisdiction, the Court may issue directions, orders or writs, in the nature of Habeas corpus, mandamus, prohibition, quo warranto and certiorari. Article 32 confers original jurisdiction on the Supreme Court.
Article 139 empowers Parliament, by law, to enlarge the writ jurisdiction the Supreme Court and confer on the Court, power to issue directions, orders or writs including writs in the nature of the above mentioned writs, any purpose other than the enforcement of the Fundamental Rights. No law, as yet, has been enacted.
Court of Record (Article 129)
Article 129 of the constitution of India states that the Supreme Court is the court of record.
- The definition of a court of record is such that the acts and certain proceedings of a court are enrolled for testimony and memory. The recorded and retained proceedings are used with the permission of higher authority, and the truth of these proceedings is not even questionable. These records have a higher importance value and are not questionable under any grounds when produced before any other court.
- Also, it provides the supreme court with the power of punishment for contempt of its authority.
Contempt of Court (CoC)
According to “Lord Hardwick”, there is a three-fold classification of Contempt:
- Scandalizing the court itself.
- Abusing parties who are concerned in the cause, in the presence of court.
- Prejudicing the public before the cause is heard.
However, in India, there are two types of Contempt:
Civil Contempt: Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt has been defined as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.
Criminal Contempt: Under Section 2(c) of the Contempt of Courts Act of 1971, criminal contempt has been defined as the publication:
- Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court.
- Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding.
- Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
Amendment done in the Act: It was amended in 2006 to include “truth and good faith” as a defence. It was added that the court may impose punishments only if the act of the other person substantially interferes, or tends to interfere with the due course of justice.
Procedure followed in Coc: In P N Duda v. P Shiv Shanker, the Supreme Court held that matter related to criminal contempt could be taken by the court by three methods namely,
- On its own motion.
- On the motion of the Attorney-General or the Solicitor-General
- On motion by any other person with the consent of the Attorney-General or the Solicitor- General.
- Article 129: Grants Supreme Court the power to punish for contempt of itself.
- Article 142(2): Enables the Supreme Court to investigate and punish any person for its contempt.
- Article 215: Grants every High Court the power to punish for contempt of itself
According to Indian Judiciary Report, the number of civil contempt cases and criminal cases is 96310, and 586 cases respectively.
- It is because the foundation of Judiciary is the Trust and the confidence of the People which is a sine qua non for the rule of law, CoC is necessary.
- It is held that being the epitome of the Indian judiciary, an attack on the Supreme Court can lead to ordinary litigants and judges of High Courts across the country losing the confidence in the Supreme Court.
- To Uphold Majesty of Law. Increasing instances of Contempt and scandalizing: The high number of cases justifies the continuing relevance of the contempt of court law.
- If SC places “People” at the centre in its justification, then it should be assessed whether SC has placed “People” at the centre in others judgement also or not. Ex:- Migrant issue, Electoral Bond.
- Demands have been raised to restrict contempt to only “wilful disobedience” of directions/judgments of the court and remove “scandalizing the court”
- CoC gives power for judicial overreach.
- Power of SC limits the application of Article 19. Former Justice of Supreme Court, V.R. Krishna Iyer, famously termed the law of contempt as “having a vague and wandering jurisdiction, with uncertain boundaries; contempt law, regardless of the public good, may unwittingly trample upon civil liberties”.
- Non Judicious Use:- Ex- Mid-Day newspaper was found guilty of contempt of court for publishing articles against former Chief Justice of India Y K Sabharwal. In this case, Delhi HC has not considered “Defence of Truth” as a parameter in exercising its power.
Case Study of Prasanth Bhushan:
Issue of not abiding the procedure in P. Bhushan Case:- None of these were followed in Prashant Bhushan Case.
First issue:-The petition was put by advocate Mr Maheshwari against Prasant Bhushan asking for exemption from consent of AG and SC. The learned Judge said it was placed before them on the administrative side and now they are taking sue moto action.
Second Issue:- Rule 10 of the Rules to Regulate Proceedings of Contempt of Supreme court, 1975 expressly provides for The Court may direct the Attorney-General or Solicitor-General to appear and assist the court. However, SC failed to hear from AG and took his assistance throughout the hearing.
Law Commission Observation:
- The 1971 Act contains adequate safeguards to exclude instances which may not amount to criminal contempt as defined under Section 2(c) of the Act 1971.
- The statute has stood the test of judicial scrutiny for about five decades.
Suggestion: Follow Mulgaonkar Principles
- The first rule in the branch of power is a “wise economy of use by the Court of this branch of its jurisdiction”.
- The Court will act with seriousness and severity where justice is jeopardized by a gross and/or unfounded attack on the judges, where the attack is calculated to obstruct or destroy the judicial process.
SC Cases on contempt of court:
- Brahma Prakash Sharma Case (1953):- Contempt power is invoked to restore the confidence of the Public whose interest would be affected very much when authority of court is lowered.
- Baradanath Mishra v the Registrar of Orissa High Court:- The Court has to ask whether the vilification is of the Judge as a judge, or it is the vilification of the Judge as an individual. If it is the former, the Court will proceed with scrupulous care in cases that are clear and beyond a reasonable doubt.
- Dr D.C. Saxena v. Hon’ble The C.J.I:- The court held that scandalizing the court or judge, undermines people’s confidence in the administration of justice and brings the Court into disrepute. Such disrespect tantamount to criminal contempt.
Some Case Study where CoC has not been used judiciously:
- Ketan Tirodkar had accused judges of ‘selling justice’ by accepting bribes. … Bombay High Court sentences former journalists to three months in jail for contempt.
- Contempt court against Publications:- These publications had carried reports about an alleged sex scandal in Mysore, in which several High Court judges had been implicated.
- Rajpal Yadav was convicted of contempt of court and jailed for ten days, after failing to appear before the Delhi High Court during a suit against them for recovery of debts.
- Arundhati Roy was convicted for criticizing one of the court’s judgments concerning the Narmada Dam.
SC should show a large heart and not use the power like “Caesar’s wife can’t do any wrong”. They can also learn from AG Venugopal who declined to initiate power of contempt against others.
Original Jurisdiction (Article 131)
It confers on the Supreme Court exclusive and original Jurisdiction in a dispute relating to:
- Between the Government of India and one or more States; or between the Government of India and any State or States on one side and one or more States on the other; or
- Between two or more States.
- The dispute must involve any question (whether of law or fact) on which the existence or extent of a legal right depends.
- Article 131 will not be applicable where citizens or Private bodies are parties either jointly or in alternative with the State or Government of India.
- A dispute between riparian States, located in inter-State river basin, relating to non-implementation of binding award of Water Disputes Tribunal is covered under Article 131.
- It has been held that ordinary disputes of commercial nature though the Government of India and the States were not maintainable under Article 131.
Exclusion of Original Jurisdiction
The original jurisdiction of the SC does not extend to following matters:
- In dispute arising out of treaty, agreement, covenant etc.
- Inter-state water dispute.
- Matters referred to Finance Commission under Article 280.
- The adjustment of certain expenses under Article 290.
- The validity of central laws can be challenged through Article 32 and no recourse is normally permitted under Article 131 (State of MP v. UOI 2012).
Citizenship Amendment act: Kerala sought to declare the law as violative of the principles of equality, freedom and secularism enshrined in the Constitution.
SC can test validity of law under Article 131:
In 2011, in State of MP vs UOI, the Supreme Court held that validity of central laws can be challenged under Article 32 of the Constitution and not under Article 131.
In the case, Madhya Pradesh had sought to challenge under Article 131the constitutional validity of certain provisions of the Madhya Pradesh Reorganisation Act, asserting that they violated Article 14 of the Constitution. The two-judge bench however, felt that a petition under Article 32 would’ve been more appropriate for the challenge.
In Constitutional Matter (Article 132)
An appeal shall lie to the Supreme Court from any judgement, decree or final order of a High Court in the territory of India, weather in a civil, criminal or other proceeding, if the High Court certifies that the case involves a substantial question of law as interpretation of this Constitution”.
An appeal” shall lie to the Supreme Court under Article 132 only when the following conditions are satisfied:
- The judgment, decree or final order appealed against, must have been made by a High Court.
- The judgment, decree or final order appealed against, may be made by the High Court in any civil, criminal or other proceeding.
- The High Court must give a certificate under Article 134-A to the following effect- that the case involves a substantial question of law as to the interpretation of the Constitution. It is only the judgments, decrees or final orders of the High Courts that appealed against under Article 132.
The expression final order means an order that puts an end to the proceeding. The order must not be interlocutory and must not leave Original proceeding alive.
To be substantial question of law, the Supreme Court in Santosh Hazari vs. Purshottam Tiwari,” explained:
- It must be debatable, not previously settled by law of the land
- Must have a material bearing on the decision of the case, it answered either way, in so far as the rights of the parties before it are concerned.
In Civil Matter (Article 133)
“An appeal shall lie to the Supreme court from any judgment, decree or final order in a civil proceeding of a High the territory of India, if the High Court certifies under Article 134-A
- That, the case involves a substantial question of law of general importance; and
- That in the opinion of the High Court the said question needs to be decided by the Supreme Court.”
In criminal Matters (Article 134)
Appeal from the decision of a High Court in criminal proceedings lies before the Supreme Court in the following two ways:
- Without a certificate of the High Court(Article 134 (1) (a) & (b) and
- With a certificate of the High Court. (Article 134(c))
Without a certificate of the High Court (Article 134 (1) (a) & (b)
An appeal shall lie to the Supreme Court from judgement, final order or sentence in a criminal proceeding of a High court in the territory of India if the High Court:
- Has an appeal reversed an order of acquittal of an accused person and sentenced him to death; or
- Has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death.
In the above two cases, no certificate needs to be obtained from the High Court under Article 134-A and the accused person may go in the Supreme Court, in his own right.
With a certificate of the High Court (Article 134(c))
In cases other than those covered under Sub-clauses (a) and (b) of Clause (1) of Article 134 an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High court if the High Court certifies under Article 134-A that- that the case is fit one for appeal to the Supreme Court.
Enlargement of criminal appellate Jurisdiction [Article 134 (2)]
Article 134 (1) conferred a limited criminal jurisdiction on the Supreme Court, for, an appeal in criminal matters, could go to the Supreme Court only in exceptional cases.
Clause (2) of Article 134 empowers the Parliament, by law, to enlarge the criminal appellate jurisdiction of the Supreme Court. In the exercise this power Parliament enacted the Supreme Court (Enlargement d Criminal Appellate Jurisdiction) Act, 1970. Section 2 of this Act provide that an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court, without a certificate of fitness obtained under Article 134-A in the following cases:
- If the High Court has on appeal reversed an order an accused person and sentenced him to imprisonment for life or to imprisonment for a period of not less than 10 years.
- If the High Court has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to imprisonment for life or to imprisonment for a period of not less than ten years.
Appeal by Special Leave (Article 136)
Clause (1) of Article 136 provides: “Supreme Court may, in its discretion, grant special leave to appeal from any judgement, decree, determination, sentence or order in any cause or d or made by any court or tribunal in the territory of India”.
Article 136 (1) confers discretion on the Supreme Court to grant, special appeal before itself, from any judgment, determination, sentence, order passed or made by any court or tribunal in any cause or matter. Article 136 confers extra-ordinary jurisdiction on the Apex Court.
Distinction between Article 136 and Articles 132 to 134:
- While, under Articles 132 to 134, an appeal to the Supreme Court lies against a decision of the High Court, under Article 136, it may lie against the decision of any court or tribunal Thus, under Article 136 an appeal lies against the decisions of subordinate courts as well.
- While, under Articles 132 to 134, an appeal lies to the Supreme Court against the final order of a High Court, under Article 136, it may lie against an order whether final or not.
- While, under Articles 132 to 134, the decision appealed against must have been passed or made in any civil, criminal or other proceeding da High Court, under Article 136, decisions made or passed in any cause or matter may also be appealed against.
- While, under Articles 132 to 134, an appeal lies only when the High Court grants a certificate of fitness under Article 134-A-under Article 136, appeal lies only when the Supreme Court, in its discretion, has granted special leave to appeal before itself.
Scope of Article 136
It is an extraordinary jurisdiction vested by the Constitution in the Court with implicit trust and faith and extraordinary care and caution to be observed in the exercise of this jurisdiction. In view of the language of Article 136, it is held that the Supreme is not expected to act as “regular Court of appeal” settling disputes converting it into a “Court of Error”. While exercising power under 136, the Court acts not only as a Court of law but also a Court of equity a hence the power exercised by the Court must subserve ultimately the cause of justice. The following two conditions must be satisfied for invoking Article 136(1):
- The proposed appeal must be against a judicial or quasi-judicial not a purely executive or administrative order
- The determination or order must have been made or passed, by Court or tribunal, in the territory of India.
Ganga Kumar vs State of Bihar, the court came with the following principles for invoking Article 136:
- The powers of this Court under Article 136 are very wide but in Criminal appeals this Court does not interfere unless it is shown that special and exceptional circumstances exist.
- It is open to this Court to interfere with the findings of fact by the High Court if the High Court has acted perversely and improperly.
- It is open to this Court to invoke the power under Article 136 when a question of law of general public importance arises or a decision shocks the conscience of the Court.
Apex Court in Mathai Joby vs. George,” said that the following categories of cases alone should be entertained under Articles 136:
- All matter involving substantial question of law as to the interpretation of the Constitution
- All matters of National or public importance
- Validity of laws, Central and States
- Judicial review of Constitutional Amendments
- To settle differences of opinion on important issues of law between High Courts
- Where the Court is satisfied that there has been miscarriage of justice
- Where a Fundamental Right has prima facie been violated.
Review Jurisdiction (Article 137)
Article 137 provides: “Subject to the provisions of any law made by the Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.”
- The power of review is not an inherent power. It must be conferred by law specifically. It is, thus, held that power of review is a creature of Statute and no Court/quasi-judicial/administrative body can review its judgment unless it is legally empowered to do so.
- Article 137 confers on the Supreme Court power to review its judgments. this power is subjected to any law made by Parliament. Also, this power is exercisable in accordance with, and subject to, the rules of the Court under Article 145.
- The review petition has to be before the same Bench which had passed the judgment sought to be reviewed.
- The rules provide that the Court may review its judgement on the grounds mentioned in Rule 1 of the Civil Procedure These grounds are:
- Discovery of new and important matter
- Any mistake or error apparent on the face of the record.
- Any other sufficient reason.
The Apex Court in S. Nagaraj vs. State of Karnataka held: Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility.
Mohd Arif Ashfaq vs Registrar Supreme court:
- A constitutional bench of Supreme court laid down that the review petition should be heard in the open court by giving an opportunity to the review petitioner to make oral submissions.
- Such review petition will be heard by bench consisting of Minimum Three judges.
Kamlesh Verma vs Mayawati: SC enumerated the cases when the review would not be considered:
- A repetition of old and overruled judgement.
- Review is not maintainable unless the material error manifest on the fact of the order, undermines its soundness a in miscarriage of justice,
- The mere possibility of two views on the subject-matter be a ground for review.
- The Supreme Court of India evolved the concept of curative petition in the landmark case of Rupa Ashok Hurra vs. Ashok Hurra where a question was raised that whether an aggrieved person is entitled to any relief against the final order/judgment of the Supreme Court after dismissal of review petition.
- In this case it was held by the Supreme court that so as to prevent abuse of process as well as to cure miscarriage of justice, it may reconsider its judgments. The court has devised a term ‘curative’ for this purpose. The petitioner is required to aver specifically that the grounds mentioned that had been taken in the review petition filed earlier and also it was dismissed by circulation.
- A curative petition is required to be certified by a senior advocate and then it is circulated to the three senior most judges and the judges who delivered the impugned judgment. There is no time limit for filing a curative petition and it is guaranteed under Article 142 of the Constitution of India.
Essentials: The Supreme court has laid down specific conditions in order to entertain curative petition which are as follows:
- It has to be established by the petitioner that there was a genuine violation of principles of natural justice.
- It shall be specifically stated in the petition that the grounds mentioned had been taken in the petition and that it was dismissed by circulation.
- The curative petition shall be certified by a senior advocate.
- The curative petition is then circulated to the three senior most judges and also to the judges who passed the impugned judgment.
- If majority of the judges agree that the matter needs hearing, then it would be sent to the same bench.
- Exemplary costs could be imposed by the court to the petitioner if his plea lacks merit.
Navneet Kaur vs NCT of Delhi: The apex court in this case allowed the curative petition by commuting the death sentence to life imprisonment on the ground of inordinate delay of 8 years in disposal of mercy petition and on the ground of insanity.
In another case, the Supreme Court set aside its own judgment which held that the action of a the woman merely kicking her daughter-in-law or threatening her with divorce would not come within the meaning of “cruelty” under Section 498 A of the Indian Penal Code. The three judge Bench allowed curative petition filed by the National Commission for Women.
Advisory Jurisdiction (Article 143)
Article 143 confers power on the President to consult the Supreme Court on matters of public importance. Clause (1) of Article 143 provides: “If at any time it appears to the President that:
- A question of law or fact has arisen, or is likely to arise.
- The question is of such a nature and of such public importance it is expedient to obtain the opinion of the Supreme Court
He/ She 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”.
Clause (2) Article 143: President may refer the matter on any dispute arising out of any pre-constitution treaty, agreement, covenant, engagement, sanad or other similar instruments.
Essential aspects of Advisory Jurisdiction of the Supreme Court:
- Article 143 does not speak of administration of justice or any adjudication. It is not adjudication but consultation, an advisory function designed to assist the President (the Executive).
Accordingly, there is to be no judgement, decree or order but opinion to be forwarded to the President in a report.
- Its scope is, however, wider, as it provides that any question of law or fact of public importance may be referred by the President for the consideration of the Supreme Court.
- The opinion of the Supreme Court is only advisory and not binding. The President is free to follow or not to follow.
- Ismail Faruqui v. Union of India: The five judge bench of the Supreme Court held that the Presidential reference seeking the Supreme Court’s opinion on whether a temple originally existed at the site where the Babari Masjid subsequently stood was superfluous and unnecessary and opposed to secularism and favoured one religious community and therefore, does not required to be answered.
- In Delhi Laws Act case, the Court considered the validity of the Act with regard to delegated legislation.
- In Re Kerala Education Bill, the Bill was reserved for consideration of the President who referred to the Supreme Court to give its opinion on its validity.
- In re Berubari Union Case, opinion of the court was sought to find out the manner in which the territory of India could be transferred to the Pakistan.
Power to withdraw and transfer of cases: Article 139A enables the litigants to approach the Supreme Court for transfer of proceedings, when the same or substantially similar questions of law of general importance are involved in cases pending before the Apex Court and a High Court or several High Courts. The object is to avoid difference of opinion, on the same question. It provides for a disposal of the same question in all such pending cases by the Supreme Court.
Article 139-A confers power on the Supreme Court to withdraw the case or cases pending before the High Court or the High Courts to themselves provided:
- The cases are pending before the Supreme Court and one or more High Courts
- The cases involve the same or substantially the same questions of law.
- The Supreme Court is satisfied
- On an application made by Attorney General of India
Enlargement of jurisdiction of the Supreme Court (Article 138):
- Clause (1) The Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer. Clause (2) The Supreme Court shall have such further jurisdiction and powers with respect to any matter as the Government of India and the Government of any State may by special agreement confer, if Parliament by law provides for the exercise of such jurisdiction and powers by the Supreme Court.
Ancillary powers of Supreme Court (Article 140)
Under Article 140, Parliament may, by law, confer such supplementary powers on the Supreme Court as may appear to be necessary to enable it to perform effectively the functions placed upon it under the Constitution but such supplementary powers should not be inconsistent with any of the provisions of the Constitution.
Law declared by the Supreme court- Do judges make a law (Article 141)
The law declared by the Supreme Court shall be binding on all courts within the territory of India.
Article 141 uses the expression “law declared by the Supreme Court which is wider than “law found.” It means that the Supreme Court does merely interpret the law, it may also make law or create law. It has, however, been held that the Courts are meant to enforcement of rule of law and not to pass the orders or directions.
Vineet Narain vs. Union of India, a three Judge bench of the Supreme Court, unanimously ruled that “there are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141.” It has been recognised that “till legislature steps in to cover the gap or the executive discharges its role; judiciary must step in, in exercise of its constitutional obligations, and exercise the rule making power. So, the Apex Court laid down methodology for appointment of Chief Vigilance Commissioner.
Enforcement of the decrees or orders of the Supreme Court (Article 142)
The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
Union Carbide case: Supreme Court invoked Article 142 during the infamous case of Union Carbide and provided relief to the thousands of people who were affected during the black night of Bhopal Gas Tragedy. In the said judgment, the Hon’ble Supreme Court while awarding the compensation of $470 million to victims observed that to do “complete justice” it could even override the laws made by Parliament.
Banning sale of Alcohol : Supreme Court invoked Article 142 for banning the sale of alcohol and ensure that liquor vends are not visible or directly accessible from the highway within a stipulated distance of 500 metres form the outer edge of the highway, or from a service lane along the highway. As per the hon’ble Court, such a decision was taken to avoid accidents due to drink and drive.