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Prof.(Dr.) Priya Sepaha
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Supreme Court
According to Article 124 of the Indian constitution, there shall be a Supreme Court of India. The constitutional powers and jurisdictions of the Supreme Court have been defined from Article 124-147. The Supreme Court is meant to be the highest court of appeal which takes up appeals against the verdict of High Courts. Supreme Court at the apex of Indian Judiciary to uphold the constitution of India, to protect the rights and liberties of citizens and to uphold the values of rule of law. Hence it is known as the guardian of our Constitution.
Jurisdiction of Supreme Court[1]
1. Original Jurisdiction (Article 131)
The Supreme Court has original, appellate and advisory jurisdiction. Its exclusive original jurisdiction extends to any dispute 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, if and insofar as the dispute involves any question (whether of law or of fact) on which the existence or extent of a legal right depends.
Under Order XL of the Supreme Court Rules the Supreme Court may review its judgment or order but no application for review is to be entertained in a civil proceeding except on the grounds mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure and in a criminal proceeding except on the ground of an error apparent on the face of the record.
2. Advisory Jurisdiction (Article 143)
Article 143 of the Indian Constitution confers upon the Supreme Court advisory jurisdiction. The President may seek the opinion of the Supreme Court on any question of law or fact of public importance on which he thinks it expedient to obtain such an opinion. On such reference from the President, the Supreme Court, after giving it such hearing as it deems fit, may report to the President its opinion thereon. The opinion is only advisory, which the President is free to follow or not to follow[2]. However, even if the opinion given in the exercise of advisory jurisdiction may not be binding, it is entitled to great weight[3].
3. Law declared by the Supreme Court binding on all Courts in India (Article 141)
Article 141 of the Indian Constitution states that “law declared by the Supreme Court to be binding on all courts within the territory of India.” Article 141 states that only the ratio decidendi of a case is binding not the obiter dicta and the mere facts of the cases. Therefore, while applying the decision of S.C. by other courts, what is required is to understand the true principle lay down by the previous decision.
Some basic concept of Article 141
1. All the courts in India are bound by law to follow the decision of the Supreme Court.
2. Firstly, the judgment has to be read as a whole and at the same time, the observation from the judgment has to be determined in the light of the questions presented before the court.
3. Judgment is used as a precedent only if it is based on deciding or resolving a question of law.
4. Sometimes while deciding a case court is divided, during that situation the decision taken by the majority of judges will be later used as a precedent, not the decision taken by the minority of judges.
5. Ex-parte decisions by S.C are also binding in nature and can be used as precedents.S.C. is not bounded by its own decision.
6. Procedural irregularity and immateriality do not invalidate the binding nature of judgment. A special leave petition is binding in nature.
Types of precedents
i. Original and Declaratory precedents- Original precedents refer to those cases where there is a question of law that has not been decided before, and then in such a case, the decision of the judge forms original. An original precedent is a law for the future, which creates and applies new rules. Declaratory precedent means those cases where the application of an existing rule of law is used. In such cases, it is seen that the rule is applied because a law already existed on it.
ii. Authoritative or Binding precedent- it is also known as a mandatory precedent or as a binding authority. It means those decisions which the judges must follow whether they approve it or not. It basically denotes the higher court decisions which are binding over the lower courts of that region.
iii. Persuasive precedent- These precedents are not as binding as the authoritative precedents. These precedents mean that while making any judgment the judge has to consider these precedents and has to give higher weightage to it. The main concept behind considering it is that it is relevant and can help in making a fair decision. These cases could be put at a similar level in the hierarchy of courts. In India, the decisions of one high court can act as persuasive precedents in other high courts.
4. As a Court of Record and has the power to punish for contempt (Article 129)
The Supreme Court is a court of record as its decisions are of evidentiary value and cannot be questioned in any court. The Supreme Court shall have all the powers of such a court including the power to punish for contempt of itself.
A court of record means a court whereof the acts and judicial proceedings are enrolled for a perpetual memorial and testimony, and which has power to fine and imprison for contempt of its authority.
Under Articles 129 and 142 of the Constitution, the Supreme Court has been vested with the power to punish for contempt of Court including the power to punish for contempt of itself. In case of contempt other than the contempt referred to in Rule 2, Part-I of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, the Court may take action:
(a) Suo Motu, or
(b) on a petition made by Attorney General, or Solicitor General, or
(c) on a petition made by any person, and in the case of a criminal contempt with the consent in writing of the Attorney General or the Solicitor General.
5. Appellate Jurisdiction of the Supreme Court
i. An appeal in Constitutional Matters: Under Article 132 (1) of the Constitution of India, an appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court whether in civil, criminal or other proceedings, if the High Court certifies under Article 134-A that the case involves a substantial question of law as to the interpretation of this Constitution.
ii. An appeal in Civil cases: Article 133 provides that an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court only if High Court certifies under Article 134-A:–
(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.
iii. An appeal in Criminal Cases: Article 134 provides that an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court. This appeal can be in two ways:
a. without a certificate of High Court and
b. with a certificate of the High Court.
An appeal lies without the certificate if the High Court:
(i) has on appeal reversed an order of acquittal of an accused person and sentenced him to death
(ii) 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.
6. Writ jurisdiction (Article 32)
The Supreme Court has concurrent jurisdiction with the High Courts to issue directions, orders, and writs for enforcement of fundamental rights. These writs make the Supreme Court a protector and guarantor of fundamental rights. The idea is that in case of violation of a law or right, the Court may issue directions for compliance with the Constitution. There are five types of writs as below:
1. Habeas Corpus
'Habeas Corpus' is a Latin term which literally means 'you may have the body'. The writ is issued to produce a person who has been detained, whether in prison or in private custody, before a court and to release him if such detention is found illegal. The principal aim of the writ is to ensure swift judicial review of alleged unlawful detention on liberty or freedom of the prisoner or detention.
2. Mandamus
'Mandamus' is a Latin word, which means 'We Command'. Mandamus is an order from the Supreme Court or High Court to a lower court or tribunal or public authority to perform a public or statutory duty. This writ of command is issued by the Supreme Court or High court when any government, court, corporation, or any public authority has to do a public duty but fails to do so. The function of mandamus is to keep the public authorities within the limits of their jurisdiction while exercising public functions.
3. Certiorari
'Certiorari' is a Latin word being a passive form of word 'certiorari' which means to inform. A writ of certiorari or a writ in the nature of certiorari can only be issued by the Supreme court under Article 32 and a High court under Article 226. Accurately, Certiorari means to be certified. The writ of certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court, tribunal or quasi-judicial authority.
Following conditions are necessary for the issue of a writ of certiorari:
· There should be court, tribunal, or an officer having the legal authority to determine the question with a duty to act judicially.
· Such a court, tribunal or officer must have passed an order acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal, or officer.
· The order could also be against the principles of natural justice or the order could contain an error of judgment in appreciating the facts of the case.
4. Prohibition
The Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. The writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, or quasi-judicial body prohibiting the latter from continuing the proceedings in a particular case, where it has no jurisdiction to try. After the issue of this writ, proceedings in the lower court, etc. come to a stop.
5. The Writ of Quo-Warranto
The word 'Quo-Warranto' literally means 'what is your authority?' The writ of quo warranto is used to judicially control executive action in the matter of making appointments to public offices under relevant statutory provisions. The writ is also used to protect a citizen from the holder of a public office to which he has no right. If a person has usurped a public office, the Court may direct him not to carry out any activities in the office or may announce the office to be vacant. Thus High Court may issue a writ of quo-warranto if a person holds an office beyond his retirement age.
Conditions for issue of Quo-Warranto:
- The office must be public and it must be created by a statute or by the constitution itself.
-The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another.
-There must have been a contravention of the constitution or a statute or statutory instrument, in appointing such person to that office.
Thus, the citizens of India are secure as far as fundamental rights are concerned. The Supreme Court has the power to declare a law passed by the legislature null and void if it encroaches upon the fundamental rights. It has exercised this power on several occasions. This shows how the Supreme Court has always served as the guardian of fundamental rights.
Further, the Supreme Court has also assumed additional duties under a concept called 'Public Interest Litigation' (PIL), under which any citizen can bring any matter of general importance to the general public for consideration of the Supreme Court. If the Supreme Court finds that the executive has been failing in the due discharge of its duties, it passes the required directions to the concerned authorities in government.
A brief table on writs:
References:
[1] Article 124-147 of the Constitution of India. [2] See Keshav Singh’s Case, AIR 1965 SC 745. [3] See Singh Ragvendre Pratap, Advisory Jurisdiction (143).
