The Supreme Court’s authority stems from the Constitution of India, 1950
As the highest court in India, the Supreme Court’s judgments are binding on all other courts in the country. It serves both as the final court of appeals and final interpreter of the Constitution. Owing to these vast powers, many have labelled it among the most powerful courts in the world.
Supreme Court Jurisdiction
The jurisdiction of the Supreme Court can be divided into five categories: (1) Original, (2) Appellate, (3) Extraordinary Appellate, (4) Advisory and (5) Plenary.
(a) Citizens (and under certain conditions, non-citizens) can move the Supreme Court to enforce their fundamental rights. Under Article 32 of the Constitution the Court has the power to issue directions, orders or writs (‘in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari‘) to enforce any right under Part III of the Constitution.
(b) Article 131(1) grants the Supreme Court original jurisdiction over any dispute between
• the Government of India and any State
• the Government of India and State on one side and any State on the other side
• two or more States
(c) Under Article 139A, the Court has the power to transfer cases:
• Cases involving the same or substantially same question of law pending before any High Court or another bench of Supreme Court can be transferred to the Supreme Court.
• In the interest of justice, the Supreme Court can transfer cases from one High Court to another.
(e) Article 71 establishes that election disputes with respect to the President or Vice President will be heard by the Supreme Court.
Parties can appeal High Court judgments to the Supreme Court under Articles 132 (Civil, Criminal or Other), 133 (Civil) and 134 (Criminal) of the Constitution. This requires parties to obtain a certificate of appeal from the High Court.
Extraordinary Appellate Jurisdiction
Article 136 of the Constitution empowers the Supreme Court to grant ‘special leave‘ to an appeal against an order by any lower court (or tribunal). Unlike regular appeals, special leave petitions do not require certification from the lower court.
(a) Under Article 143(1) the President may refer to the Supreme Court a question of ‘law’ or ‘fact’ of public importance. However, the Court can decline this Presidential Reference.
(b) Under Article 143(2), the President may refer to the Supreme Court a dispute arising out of pre-constitutional arrangements, such as treaties, agreements, covenants or other similar instruments.
(c) Under Article 317, the President may refer to the Supreme Court an inquiry for removal of the Chairman or any other member of a Public Service Commission.
(a) Under Article 137 the Supreme Court has the power to review any judgment or order pronounced by it.
(b) Article 142 allows any person to file a petition to cure a ‘gross miscarriage of justice’ or ‘prevent abuse of process of law‘ brought about by a Supreme Court judgment. The grounds for filing curative petitions have been laid down in Rupa Ashok Hurra v Ashok Hurra.
Supreme Court’s Relationship with the High Courts and Lower Courts
The judgments of the Supreme Court are binding on all the High Courts and lower courts. High Courts are the courts of coordinate jurisdiction, and therefore, their decisions are only persuasive for other High Courts. They are binding only on the lower courts which fall under the jurisdiction of the High Court that has pronounced the decision. When there are conflicting opinions by High Courts on a question of law, the interpretation that is given by the Supreme Court becomes final and binding.
Under Article 139A, the Supreme Court has the power to withdraw a case from any High Court and take cognizance of the case itself, if it is satisfied that the case involves an important and substantial question of general importance. After deciding on this question of substantial importance, the court may return the case to the respective High Court along with its judgment for the High Court to dispose of the case in conformity with the Supreme Court’s judgment. Further, it also has the power to transfer cases from one High Court to the other. Under Article 228, High Courts have similar powers only with respect to the courts subordinate to them in their respective jurisdictions.
Appellate Jurisdiction of the Supreme Court
Under Article 132, any final order or judgment of a High Court in a civil, criminal, or any other matter can be appealed against in the Supreme Court. The condition under this Article is that the appellant must obtain a certificate allowing the appeal from the High Court. The High Court may issue this certificate under Article 134A, if it is of the opinion that the case involves a substantial question of law, or that the case needs to be decided by the Supreme Court. After obtaining this certificate, the parties can argue that their case has been wrongly decided by the High Court. Articles 133 and 134 further elaborate the grounds for appeal in civil and criminal matters respectively.
Under Article 134A, High Courts are not bound to issue the certificate of appeal. They have the discretion to refuse to do so.In this case, Article 136 allows the Supreme Court to grant a “Special Leave to Appeal” against any judgment, order, decree, or sentence passed by any court of tribunal of the country. Petitions filed under Article 136 are called Special Leave Petitions.
The Collegium System – Role of Supreme Court in judicial appointments to higher judiciary
There are various Articles in the Constitution which provide for the appointment of judges to the lower and the higher judiciary:
Article 233 addresses the appointment of District Court judges.
Between 1982-1999, the process of appointment of judges was reinterpreted by the Supreme Court. This was done with a view that judicial appointments must be kept independent of the Executive to protect the separation of the Judiciary from the Executive as contained in Article 50 of the Constitution.
In The Supreme Court Advocates-on-Record Association v. Union of India (1993) the Supreme Court devised the “Collegium System” for appointment and transfer of judges of Supreme Court and High Courts. Meant for “protecting the integrity and guarding the independence of judiciary”, this judgment said that the opinion of CJI would have primacy in appointment of High Court and Supreme Court judges. It was said that the recommendations would be made by the CJI in consultation with two senior-most judges. It was also said that the Executive could ask for reconsideration of the recommendation if it had any objection. But, if even on reconsideration the collegium gave the same decision, the Executive was bound to accept.
In 1998, the Supreme Court laid down nine guidelines for the functioning of the coram for appointments and transfers of judges, in response to the Presidential Reference issued by then President of India, K.R. Narayanan. This is the practice that is followed currently. Appointment of judges in the Supreme Court is dependent on the opinion of the CJI along with four senior-most judges of the Supreme court. Most often, judges from the High Courts are appointed judges in the Supreme court. Appointment of judges in the High Courts is also based on the opinion of the collegium, along with the two senior-most judges of the respective High Court.
One of the most important features of Common Law is its adherence to the doctrine of stare decisis. The doctrine makes the decisions of a superior court binding upon itself, and all the inferior courts, in cases which deal with a similar question of law. Before deciding a case, the judges look into previously decided cases of a similar nature. This doctrine brings stability and consistency to Common Law.
In Common Law, judges have the power of judicial review over legislations and administrative actions. In the absence of any legislation with respect to a certain matter, the judges also have the power to lay down rules until the legislature passes any law. Stare decisis helps to keep these powers balanced, as the judges have to follow previously established principles, and are not completely free to act on their own volition. This gives rise to the concept of precedents.
A precedent is a case which establishes a rule in law, and which has to be followed in future cases with similar facts/questions. This is also called “judge-made” law, as it has all the effects of law.
The Evolution of ‘Precedence’
The concept came to India with the British rule. There were three main reasons for developing the rule of precedents –
The law of the land had to be clear, certain, and consistent. This was important so that the people knew it, and lawyers and judges could apply it without hesitation.
A precedent had to be set to prevent the problem of conflicting decisions on similar cases by the courts.
It was important to safeguard judicial decisions to maintain the faith of the people in the judiciary and in law- there is a smaller margin of error when cases are decided on previously discussed principles.
Article 141 of the Constitution of India makes decisions of the Supreme Court binding on all the courts of India. The judiciary follows a strict hierarchy, and the decisions of the superior courts are binding on the inferior courts. In the absence of a precedent by the Supreme Court, High Courts can refer to their own previous judgments, or by other High Courts of the country. They can also refer to the decisions of English courts, International Law, and decisions of other jurisdictions. All these are merely influential and not binding. However, when there is a decision of the Supreme Court, it is a binding precedent and law of the land, irrespective of whether it comes from a small or a large Bench.
The Constituent Assembly had discussed why it would be unwise to bind the Supreme Court of its own decisions. It was cleared that “all courts” under Article 141 meant all courts other than the Supreme Court. This was done to ensure elasticity and growth, and to enable the Court to rectify errors of law which it might have made. Therefore, no provision was added to bind the Supreme Court of its own decisions. However, judges have time and again expressed the need to follow precedents even within the Supreme Court.
In Union of India v Raghubir Singh, Chief Justice RS Pathak said that the doctrine of binding precedent is a “cardinal feature” of Indian jurisprudence. He further said that the Court could overrule its decisions only in matters of fundamental importance to the changing society, or in case of error of law.
In Central Board of Dawoodi Bohra v State of Maharashtra, the Supreme Court laid down the rule of “judicial propriety and discipline”, saying that precedents were important to create uniformity in law. It was also considered inappropriate for smaller Benches of the Supreme Court to disagree with the pronouncements of the larger Benches as it would be detrimental to the rule of discipline. Hence, smaller Benches are bound by the decisions of larger and co-equal Benches. Judges can not take the interpretation and establishment of the law casually, and frequently overturn the decisions of the highest court of the country. Hence, the Supreme Court does not overturn its precedents unless there is an error of law, or the changing times require for it to do so.
In Anuradha Bhasin v Union of India, Justice N.V. Ramana said that the blanket ban on internet services in Kashmir could not go on indefinitely, because the restrictions on Fundamental Rights had to be in proportion with the necessity of those restrictions. The Court referred to the precedents set in Minerva Mills Ltd. v Union of India and Sanjeev Coke Manufacturing Company v M/s Bharat Coking Coal Ltd. to talk about the test of proportionality.
In Paramvir Singh Saini v Baljit Singh, the Court ordered installation of CCTV cameras in all police stations of States/Union Territories. It did so to keep abuse of human rights under check, citing two important precedents to comment on the need for oversight – Shafhi Mohammad v State of Himachal Pradesh in which the court said that investigating agencies needed to introduce videography in investigation, especially for crime scenes. The second was D. K. Basu v State of West Bengal, in which the court laid down detailed and extensive rules to prevent custodial violence and deaths.
This section introduces how judges hear cases and how they are appointed to the Supreme Court.
How do judges hear cases?
In general, Supreme Court judges sit to hear cases in open court, in what are called benches. Usually benches comprise two to three judges. On occasion, the Court forms five judge benches to examine the correctness of smaller bench decisions. Likewise seven judge benches can be formed to look into a decision of a five judge bench and so on and so forth. The largest bench formed so far comprised thirteen judges in the Kesavananda Bharati case (1973).
The Court also forms benches of five or more judges to hear substantial questions of law ‘as to the interpretation of this Constitution’, as specified under Article 145(3). For example, the Kesavananda Bharati case entailed questions pertaining to the Constitution’s Basic Structure. A more contemporary example would be the Sabarimala Temple Entry dispute. The Court formed a five judge bench to interpret questions about the fundamental right to freedom of religion under Article 25 of the Constitution.
The Chief Justice of India decides which cases will be heard by which judges. In particular, the CJI selects both the composition of benches (which judges will sit together) and the cases that are assigned to each bench. This is referred to as the roster system. Aptly, the Chief Justice is called the Master of the Roster.
The ‘Master of the Roster’ Controversy and Introduction of the Subject-Wise System
In an unprecedented move, on 12 January 2018, four judges of the Supreme Court held a press conference to criticize then Chief Justice Dipak Misra. Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph’s primary complaint was that CJI Misra was assigning cases to benches arbitrarily.
They said that while the Chief Justice is the ‘Mater of the Roster’, this does not confer upon him any kind of superior administrative authority. Rather, they asserted that the Chief Justice is merely ‘the first among equals’. They explained that he is only responsible for determining the roster so as to ensure the ‘disciplined and efficient transaction of business’.
As such, they stressed that the Chief Justice can never ‘arrogate to [himself] the authority to deal with and pronounce upon matters which ought to be heard by appropriate benches’. In other words, they cautioned the Chief Justice against assigning cases to his own bench that were being (or going to be) heard by a different bench.
A month after the press conference, Chief Justice Dipak Misra responded by introducing a subject-wise roster system. His aim was to introduce a transparent, rule-bound system for assigning cases. Each bench was assigned a set of subjects and only heard matters pertaining to these subjects. For example, a Bench could be assigned labour, compensation and land acquisition matters (usually benches are assigned around ten subjects). The system came into effect on 5 February 2018.
In addition to introducing the subject-wise roster system, the Court entertained the idea of having a Collegium-like system for determining the roster. It heard a petition filed by Former Union Law Minister Shanti Bhushan requesting the Court to require the Chief Justice to consult with his/her senior most colleagues when determining the roster. Ultimately however, a Bench comprising Justices A.K. Sikri and Ashok Bhushan rejected the plea. However, it did re-affirm that the Chief Justice is only ‘the first among equals’.
Currently, the Court continues to use the subject-wise roster system. The Chief Justice of India selects the composition of benches and which types of cases they will hear. The current roster can be found here.
How are judges appointed to the Supreme Court?
Currently, the Collegium has the ultimate authority to appoint judges to the Supreme Court. The Collegium comprises the Chief Justice of India and their four senior most colleagues. Before retiring, the Chief Justice selects their successor, which by convention is the senior most sitting judge
When a vacancy arises, the Collegium convenes and recommends a name to the Union Government. Usually, this recommended person is a High Court judge. Nevertheless, lawyers with ten years of High Court experience or even distinguished jurists are eligible to be appointed. The Union reviews the recommendation and then either affirms it or asks the Collegium to reconsider. In instances of the latter, the Collegium will reconsider the name, but ultimately has the power to reiterate it. Once the Collegium reiterates a recommendation, the Union must make the appointment. The entire process is outlined in the Memorandum of Procedure.
The Collegium also has authority over High Court appointments. High Court appointments are governed by essentially the same procedure.
These procedures are intended to restrict the Union’s influence over appointments. Nevertheless, the Union can exert control over individual appointments. Consider, for example, the 2019 controversy surrounding Justice Akil Kureshi’s appointment. The controversy arose when the Union simply chose not to respond to a Collegium recommendation – neither accepting it nor asking for a reconsideration. This led the Gujarat High Court Advocates Association to file a petition in the Supreme Court, seeking Justice Kureshi’s immediate appointment. Ultimately, the Court and Union resolved the issue on the administrative side, avoiding disputing the appointment in open court. The Collegium agreed to the Union’s request to recommend Justice Kureshi as Chief Justice of the Tripura High Court, instead of the Madhya Pradesh High Court.
The Introduction of the Collegium
The Union Government originally had the final say over judicial appointments. The drafters of the Constitution had vested the President with the power to make appointments. Under Article 124, the President has control over appointments and must only consult the Chief Justice of India (and any other judges the President may deem necessary). Prior to the introduction of the Collegium, Article 124 was interpreted to mean that the President could act against the advice of the Chief Justice.
In the years leading up to Emergency, the Court became concerned that the Union was eroding the Court’s independence by making arbitrary appointments and transfers. Famously, in 1973, the Union selected Justice A.N. Ray as the Chief Justice of India, superseding three of his more senior colleagues. This was widely seen as Indira Gandhi rewarding him for dissenting in the Kesavananda Bharati case.
Following Emergency, the Court gradually wrested control from the Union over judicial appointments. In what are known as the Three Judges Cases, the Court established that primacy over appointments rested with the Chief Justice of India and their senior most colleagues.
In the First Judges Case (1981), the Court placed an onus on the President to substantially consult the Chief Justice when making appointments. Then in the Second Judges Case (1993), the Court went further and established that the Chief Justice has primacy over appointments. It read that the word ‘consultation’ in Article 124 means ‘concurrence’. Finally, in the Third Judges Case (1998), the Court clarified that the Chief Justice must consult with the four other senior most Supreme Court judges when making Supreme Court appointments.
The Union, through both its executive and legislative arms, has repeatedly challenged the Collegium system. For example, in 2014 Parliament passed the National Judicial Appointments Commission (NJAC) Bill. The NJAC system was intended to replace the Collegium system. It would have comprised not only judges, but also the Union Law Minister and two eminent persons nominated by a selection committee. However, it never came into being. In 2015, the Supreme Court struck down the Act as unconstitutional, observing that it would infringe upon the independence of the judiciary.
For now, the Collegium system remains in place. While the Court itself in its NJAC judgment conceded that the system requires improvements, it appears unlikely that it will undergo major overhauls in the near future.
Benches of the Supreme Court
During the drafting of the Constitution, B.N. Rau, Advisor to the Constituent Assembly, suggested that the Supreme Court of India should always sit as a full court. This, however, was not accepted because the Constituent Assembly was dedicated to letting the judiciary use its time in the most optimum way. Sitting in separate benches could allow them to hear more cases.
A Bench of 2 or 3 judges, either of a High Court or the Supreme Court, nominated by the Chief Justice is called a Division Bench. There is no provision in the Constitution regarding Division Benches, but they are formed as per Order VI of the Supreme Court Rules, 2013. A Division Bench hears regular cases of appeals, causes, and other matters on a daily basis. However, a case in which the High Court has pronounced a death sentence shall only be heard by a Bench of not less than 3 judges.
A Bench of 5 or more judges of the Supreme Court does not sit everyday. As per Article 145(3) of the Constitution, a Bench of 5 or more judges is to be formed when there is a need to answer an important question of law, or the interpretation of the Constitution. This Bench is called a Constitution Bench. It is also formed on occasions when the President asks for the opinion of the Supreme Court under Article 143. A Constitution Bench also examines the verdicts and /or reasoning of smaller Benches.
Are Constitution Benches’ decisions binding on Division Benches?
There is no provision in the Constitution which says that the decision of a larger Bench of the Supreme Court has to be followed by, and is binding on a smaller Bench. But in practice, a smaller Bench is required to follow precedent, and cannot disagree with the decision of a larger Bench. In Central Board of Dawoodi Bohra v State of Maharashtra, the Supreme Court said that the smaller Benches must follow the decisions of the larger Benches, not because they are bound to do so, but because of the rule of “judicial propriety and discipline”. The court further clarified that there is a need of setting precedents to make the law uniform, and therefore, it is considered improper for smaller Benches to disagree with the pronouncements of larger Benches.
In Union of India v Raghubir Singh, the then Chief Justice R. S. Pathak dismissed objections raised on referring cases decided by a three-judge Bench to a larger Bench, by a two-judge Bench. He stated that the judiciary in India not only interpreted the laws, but also examined the correctness and competence of laws. He further said that it is the responsibility of the highest court of the land to give a “certain, clear, and consistent” law, and not be in disagreement among itself. The law laid down had to be correct. Although Justice Pathak listed the cases before a division Bench of three judges for re-examination, he greatly emphasised the importance of judicial discipline and precedents.
After Central Board of Dawoodi Bohra v State of Maharashtra, it is established practice that a smaller Bench, if it doubts the correctness of the decision of a larger Bench, can only refer the matter to the Chief Justice for re-examination by an even larger Bench. It cannot express its disagreement. Only a Bench of equal strength can express such a disagreement, whereupon the matter is placed before a Bench which is larger in strength than the Benches that gave differing opinions.
Advocates in the Supreme Court
Who may be an Advocate before the Supreme Court?
The Advocates Act, 1961 recognises two types of advocates: Advocates and Senior Advocates.
The Supreme Court specially recognises a third category of advocates known as Advocates-on-Record (AOR) who are exclusively entitled to ‘appear, plead and address the court’ or to instruct other advocates to appear before the Court.
Who are Senior Advocates and how are they selected?
Section 16 of the Advocates Act, 1961 empowers the High Court or the Supreme Court to designate an advocate as a ‘Senior Advocate’ based on their standing at the Bar, ability, special knowledge and experience in the law.
In 2017, the Supreme Court laid down elaborate guidelines on the designation of Senior Advocates to make the process objective, fair and transparent. These guidelines create a ‘Committee for Designation of Senior Advocates’ (the Committee) with the Chief Justice of India as its Chairperson and the two senior-most judges of the Supreme Court, the Attorney General and a senior member of the Bar. This member is nominated by the other members of the Committee. The Committee invites applications from advocates and retired judges in January and July every year. The names that are cleared by the Committee are presented to all the judges of the Court for a final decision. Similar guidelines have been adopted by different High Courts.
Senior Advocates enjoy the ‘right to pre-audience.’ Hence, a court will hear Senior Advocates before other Advocates. However, according to Part VI of the Bar Council Rules, Senior Advocates cannot draft or file pleadings or applications or to appear before the Supreme Court unless they are instructed by an Advocate-on-Record. The Rules also bar Senior Advocates from entertaining litigants directly.
Who are Advocates-on-Record?
Advocates-on-Record are the only advocates who can represent a party at the Supreme Court. Only they can file a ‘vakalatnama,’ appear or file pleadings or applications. Any other advocate who appears in a case must be instructed by an AOR.
To be appointed an AOR, a person has to be an advocate enrolled at any State Bar Council with an experience of at least 4 years. They should clear the examinations held by the Supreme Court and undergo training for a period of one year under the tutelage of another AOR.
The Attorney General of India is a Constitutional post
The Attorney General (AG), is considered to be the highest legal officer in the country.They are appointed by the President on the advice of the Council of Ministers. They act as the primary legal counsel for the government before the Supreme Court of India. The office of AG is a constitutional post under Article 76 of the Constitution of India and there have been 14 AG’s since the Constitution came into force.
Unlike the United Kingdom, where the appointment of AG is considered ‘political’ in nature, in India the appointment is solely on the basis of professional competence. The AG of India is not a member of Cabinet and is unaffiliated with any political party.
Who can be appointed as the AG?
The qualifications for appointment as the AG are the same as those required for a Supreme Court Judge as per Article 76(1). These qualifications as contained in Article 124(3) of the Constitution include:
they must be a citizen of India, who was a judge of a High Court for five years; or
a practising advocate at High Court for ten years; or
an eminent jurist in the eyes of the President.
The AG Can be Reappointed to the Office
Although the Constitution stipulates that the AG can hold office during the ‘pleasure of the President’, their term has been fixed as 3 years in the Rules. Upon the expiration of the term, they can be reappointed for another term not exceeding 3 years. The appointment of the AG can be terminated by three months notice in writing by either side.
Rights, Duties and Privileges
The AG advises the Government of India in all legal matters which are referred to them by the President. Additionally they are required to represent the Government of India in all cases in the Supreme Court of India. They are also the counsel for Government of India in any reference made under Article 143 by the President. The Government of India may also require them to appear before any High Court regarding matters that concern the government.
The AG has the right to an audience (right to conduct legal proceedings) in all courts in India and the right to take part in proceedings of both Houses of the Parliament. They can take part in joint sittings and any parliamentary committee of which they are a member but they are not entitled to vote. The AG enjoys all the privileges which are available to a member of Parliament.
Rules that Restrict the Scope of Work of the AG
The AG is barred from representing any party except the Government of India and other bodies of the government. They are also prohibited from advising against the Government of India or a Public Sector Undertaking [PSU]. The AG cannot defend an accused person in a criminal prosecution without the permission of the government. They are not allowed to accept any appointment in any company or corporation without the permission of the government. They cannot advise any department or ministry of Government of India unless the proposal in this regard is received through the Ministry of Law and Justice.
Relevant rules : Rules made by President of India vide Notification, 1987
Solicitor General and Additional Solicitor General
The Law Officers other than Attorney General
The Solicitor General [SG] is the second highest Law Officer in India. Whereas Additional Solicitor General [ASG] is termed as the third highest Law Officer. Unlike the post of Attorney General for India [AG], the offices of SG and ASG are only statutory. The appointments of SG and ASG are officiated by the President of India upon the recommendation of the Appointments Committee of the Cabinet (ACC) as per the Government of India (Transaction of Business) Rules (1961).
SG & ASG can be Reappointed
Both SG & ASG have a three year term. However, if the post of ASG is created for less than three years, then he/she shall hold the office only until such period as stipulated. The appointment can be terminated by a three-months notice in writing from either side. Both the SG and the ASG can be reappointed after the expiration of their term, for another period not exceeding three years.
The duties, rights, and restrictions of SG and ASG are similar to that of AG of India as laid down in Law Officers (Conditions of Service) Rules, 1972 . Unlike the AG, the SG and ASG do not have the right to participate in parliamentary proceedings nor do they consequently have the privileges of a member of the Parliament.
Who is an Amicus Curiae?
The Latin phrase ‘amicus curiae’ (plural: amici) means “a friend of the court.” An amicus curiae is a person, usually an advocate who is not representing a party in the matter before the court, appointed to assist the court. Amicus curiae are often appointed where a criminal defendant is unrepresented or in complex public interest litigation cases. .
Representing the Unrepresented
An amicus curiae may be appointed if the court is of the opinion that a petitioner who has chosen to represent themselves is not fit to do so, or could do with the help of an advocate (Order IV, Rule 1(c) of the Supreme Court Rules, 2013). The Supreme Court website also mentions that an amicus curiae must be appointed for any unrepresented accused person in a criminal matter. In civil matters, this appointment is at the discretion of the court.
Guidelines for Appointment
In a 2019 judgment, Anokhilal v State of Madhya Pradesh, the Supreme Court laid down some guidelines for the appointment of amicus curiae.
- If a matter could result in a sentence of imprisonment for life, or death, the amicus curiae would have to be an advocate with a minimum of 10 years’ experience at the Bar.
- If a High Court was confirming a death sentence, the amicus curiae would have to be a Senior Advocate.
- A minimum of seven days’ time should be provided to the amicus curiae to prepare arguments on the matter.
- The amicus curiae must be allowed to interact with the accused, whom they are representing.
Public Interest Litigation
The second type of role played by the amicus curiae arises in public interest litigation. An amicus curiae is appointed by the court to provide a ‘neutral’ opinion on the questions being considered. They could be asked to help with the case by the Court (as was done in the COVID-19 case) or after volunteering their service to the Court.
There are two kinds of public interest litigation that could warrant the appointment of an amicus curiae.
One of the types of public interest cases where amici are appointed are when the specific advocate’s technical expertise is required. Here, the court could ask the amicus curiae for their interpretation of the law under consideration. For example, in the matter regarding the suo moto powers of the National Green Tribunal, the amicus interpreted the powers of the NGT and submitted that the Tribunal does not have suo moto powers. Another example is when the Court appointed an amicus curiae in the matter of 1528 extrajudicial killings in Manipur. She was asked to collate data on 62 cases for the consideration of the court. Here, the Court did not ask the advocate to interpret the law, rather the Court asked for her assistance because of her expertise in human rights law.
The second type of public interest case in which amici are appointed are cases of great public importance, where the court needs an additional opinion in deciding the matter. Last year, Attorney General was appointed as amicus curiae when Senior Advocate Prashant Bhushan was being tried for contempt of court. This was done at Bhushan’s counsel’s suggestion. He submitted that the AG should be heard regarding whether the matter was one that involved an important legal question: should the conduct of judges be discussed on a public platform?
Amici in public interest cases are usually senior advocates of high standing. In 2019, Senior Advocate PS Narsimha had been appointed amicus curiae in all matters concerning the Board for Cricket Control. He was asked to mediate all BCCI matters before they were heard by the Court. He has now been appointed as a Supreme Court judge.
How is the Amicus Curiae paid?
In the interest of justice and the spirit of legal aid, the fees to be paid to an amicus curiae is minimal. They are to be paid Rs. 6000/- upto the admission of the matter, and Rs. 10,000/- once the matter has been finally disposed of, or heard on the regular side.
Writ Petitions – Features and Function
A writ petition is filed before the Court when the fundamental rights of an individual are violated. The petition is a request to the Court to issue a writ – a formal order – against the violator. This petition can either be filed before the High Court under Article 226, or directly before the Supreme Court of India under Article 32.
Only when a fundamental right is violated can a person move directly to the Supreme Court. In the Constituent Assembly’s view, this was vital because of the importance of fundamental rights – Dr. Ambedkar called Article 32 the very soul and heart of the Constitution. He stated that there were no rights without remedies, and fundamental rights were so crucial that they had to have the most speedy remedy. The Supreme Court is the custodian of Part III of the Constitution which deals with fundamental rights.
What does a Writ Petition Contain?
A writ petition can be divided into three major parts. The first part is the Synopsis and List of Dates – the synopsis gives a brief background of the case in plain language, along with what the petitioners seek from the other party and the court. The synopsis is then followed by a list of dates of all the relevant and important events.
The next part of the petition contains information about the petitioners and the respondents including their name, background, and address for the purpose of notices. It proceeds to mention the facts of the case in detail and the cause of action for the petition – what has enabled the petitioner to seek judicial redress.
The final part of the petition is the Prayer – this is where the exact reliefs sought by the petitioner are listed.
A court fee has to be paid by the court practitioner, but no such fee is to be paid when the petition is filed under Article 32 for illegal detention or arrest of a person, or for any matter which is related to a criminal proceeding.
Once the cause of action is determined based on the facts, the documents supporting these facts need to be put together. The drafted petition is then sent to the court.
This petition is heard by a division court of not less than five judges, if it concerns an important question of constitutional interpretation. If the petition does not concern such important questions of law, it can be heard by a division court of less than five judges, and by the single Vacation Judge during vacations.
Grounds for Rejection of a Writ Petition
Not every writ petition that is filed in the Supreme Court or the High Court gets accepted. The court may reject the petition on any of the following grounds:
1) When the court can prima facie (on the face of the facts) conclude no violation of a fundamental right.
2) Res Judicata – if a suit has already been adjudicated by a court that has jurisdiction, another suit cannot be filed between the same parties for the same cause of action (the decision can only be appealed against in a superior court).
3) Disputed question of fact – when complicated questions of facts arise, and further enquiries are required.
4) Alternate remedy being available under some other statute.
5) Undue delay in filing the petition – based on the facts, the court decides whether the petitioner has intentionally, grossly delayed in filing the writ petition.
On the above grounds, the petition could be dismissed by the court, but if it is accepted, a date of hearing is set when the court hears both the parties represented by their lawyers.
What are the Remedies?
The Court, to enforce the rights of the individual, may issue an order or writs in the nature of:
1) Habeas Corpus – when the court wants a person who has been detained to be brought before it and enquire about the legality of their detention/arrest. If the court is of the opinion that the petition must be granted prima facie, the court calls for the respondent on a set date to show why such order should not be passed. It also orders for producing the person who has been illegally detained before the court, on the same date, to judge the matter then and there.
2) Mandamus – when the court commands an inferior court, a public servant, a government body, to perform their duty that they have failed to perform.
3) Certiorari – when an inferior court acts outside of its jurisdiction, or makes an “error of law”, the superior court asks either for the transfer of the case to itself, or it quashes the order.
4) Prohibition – to forbid an inferior court or a quasi-judicial body from proceeding with a case outside its jurisdiction.
5) Quo-Warranto – to protect the individual from a public officer who has no right to hold that position.
Special Leave Petition
What are SLPs?
A Special Leave Petition (SLP) is filed in the Supreme Court to appeal against a judgement or an order of a court or tribunal in India. An SLP can also be filed when a High Court refuses to grant a certificate of fitness for appeal. (An example of a Certificate of Fitness for Appeal can be found here.)
An SLP can be filed against any order or judgement of a High Court within 90 days from the date of the order or judgement. When a High Court refuses to grant a certificate of fitness for appeal, an SLP can be filed within 60 days from the date of the High Court refusing to grant a Certificate of Fitness.
Power of the Supreme Court under Article 136
Article 136 states that the Supreme Court can exercise its discretion to grant special leave to appeal against a judgement or order. The Court exercises its discretionary powers to decide whether to grant such special leave or not.
The Supreme Court grants special leave only when there is a special or exceptional circumstance where a ‘substantial and grave injustice’ has occurred.
When the Court hears the petition for special leave, it does not invoke the appellate jurisdiction of the Supreme Court. It is merely an exercise of its residual, discretionary powers. However, upon granting the special leave, the Court’s appellate jurisdiction is invoked. This distinction was made in Kunhayammed & Ors v State of Kerala.
In Tirupati Balaji Developers v State of Bihar the Supreme Court clarified that Article 136 does not give an individual the right to appeal. It is merely a privilege, which the Supreme Court in its discretion grants to the aggrieved party.
What does an SLP contain?
The SLP must contain any material facts that help the Supreme Court ascertain whether the special leave to appeal can be granted. It also needs to state that no other petition has been filed in the High Court.
A certified copy of the impugned judgement along with all the documents that were submitted to the relevant court have to be attached.
Form 28 provides the format for a Special Leave Petition.
Why file a Transfer Petition?
When a party wants to transfer their case from one court to another, a transfer petition is filed before the Supreme Court (SC). Two types of transfer petitions may be filed. First, a transfer between courts at the same level within a State or across States. These transfers may be between High Courts (HC) or subordinate courts. Second, a transfer from High Courts to the Supreme Court.
The party who wants to transfer their case must file a petition to the SC disclosing relevant grounds including, prejudice in the original jurisdiction, threat to the party’s life, family issues, lack of income and medical issues.
What Should a Transfer Petition Include?
A transfer petition begins with a short synopsis of the reasons for a transfer. The main body contains the facts of the case and the grounds for transfer explained in greater detail. It must also mention the court to which the party seeks a transfer.
The petition can also include a request for interim relief. For example, the party can request a stay on the current proceedings until the Court decides whether to transfer the case. Finally, the party that is filing the transfer petition must inform the other parties in the case.
What are the Provisions for Transferring Cases?
The Supreme Court’s power to transfer cases comes from three sources. They are Article 139A of the Constitution of India, 1950, the Code of Civil Procedure,1908 (CPC) and the Code of Criminal Procedure, 1973 (CrPC). The Supreme Court’s power to transfer cases was introduced into the Constitution and relevant statutes between 1976 and 1977.
There are two kinds of transfer under Article 139A of the Constitution.
The first kind of transfer is when there are multiple cases involving the same question of law before the SC and one or more HCs. The Supreme Court can transfer the cases to itself in order to interpret the law. The cases then go back to the HC, where based on the SC’s interpretation, they are decided. This is also applicable in cases where similar questions are posed in front of two or more High Courts.
The second kind of transfer is when the Supreme Court transfers any proceedings from one High Court to another, ‘in the interests of justice’. In Maneka Sanjay Gandhi v Rani Jethmalani (1978), the Court clarified what this meant. Rani Jethmalani, a lawyer, had accused Maneka Gandhi, editor of ‘Surya’, of defamation. The case was being heard in the Bombay High Court, where the magazine was published. A transfer was sought to Delhi, since both parties were there. The Court held that a transfer between High Courts could not be for ‘relative convenience’. They rejected the transfer petition as it wasn’t compelling from the perspective of ‘public justice’.
The Civil Procedure Code, 1908
The Supreme Court has the power to transfer any proceedings from the High Court or any other civil court of one state to another under s 25 of the CPC. A majority of cases that seek a transfer under this provision are matrimonial disputes. For example, in Krishna Veni Nigam v Harish Nigam (2017), the wife had separated from her husband because of ill-treatment and moved to Hyderabad. The husband filed for divorce in Jabalpur. Since the wife was living alone with her minor daughter, she sought a transfer. Because of the wife’s financial and physical difficulties in travelling to Jabalpur, the Court transferred the case to Jabalpur.
Additionally, a petition may be filed by a party who has a reasonable apprehension that they may not get justice in the court where their case is being heard. A transfer petition may also be filed to avoid unnecessary expenses for either of the parties. Finally, a transfer may be filed if the case involves important questions of the law or public interest.
The Criminal Procedure Code, 1978
The Supreme Court can transfer criminal cases between High Courts or other criminal courts under s 406 of the CrPC where a transfer is ‘expedient for the ends of justice’.
In Abdul Nazar Madani v State of Tamil Nadu (2000), the SC held that there are ‘no hard and fast rules’ when deciding what cases should be transferred. The Court can apply its discretion to decide what is ‘expedient for the ends of justice’. When the Chief Minister of Tamil Nadu, Jayalalitha was being prosecuted, this provision was invoked to transfer the case from Tamil Nadu to Karnataka. The Supreme Court found that the prosecution was not being conducted in a fair manner because the prosecution in Tamil Nadu was influenced by political factors.
Suo Moto Petition
Suo moto is a latin term that translates to ‘on it’s own motion’. American Courts use the equivalent ‘sua sponte’. A suo moto petition is a petition entertained by a constitutional court, taking cognizance of a matter of its own volition without being petitioned by a claimant. This is closely entwined with the epistolary jurisdiction (to treat a letter written by an aggrieved person as a petition to be examined by the court of law) of the Supreme Court and High Courts. This dilutes the concept of locus standi so as to make the judicial process accessible to socio-economically disadvantaged sections of society.
For instance, the Supreme Court of India took cognisance of the risk of COVID-19 spreading within the overcrowded prisons. The Apex court in its Order asked all States and Union Territories to respond on the preventive measures adopted to avert the danger of infection in prisons.
The Criteria for When Suo Moto Jurisdiction can be Invoked is not Exhaustive
The Courts take up matters suo moto to address a situation which the judges deem as requiring expedient intervention. The conditions and instances of when a Court can invoke its suo moto jurisdiction are not provided in any legislation. Rather the bounds of such jurisdiction are understood through judicial precedents where the Courts have usually invoked it in matters of public concern and violation of human rights.
Constitutional Provisions Which Grant the Courts Suo Moto Power
Articles 32 and 226 of the Constitution grant suo moto power to the Supreme Court and High Courts respectively. Further, Article 227 confers power on the High Courts to invoke the supervisory jurisdiction suo moto.
The power of the apex court to initiate contempt proceedings suo moto is endowed in Article 129.
Cases that Comment on the Court’s Ability to Take Suo Moto Cognisance
The Supreme Court of India took suo moto cognisance in the West Bengal Rape case noting the State’s failure in preventing the grave and shocking aggression against a woman. Even after the occurrence of the crime, it was found that there has been a lack of efficiency on the part of police officials for effectively implementing the criminal law provisions. The court intervened and appointed officials to submit Reports to the court. The court adjudicated on issues concerning the investigation; prevention of recurring of such crimes; and victim compensation.
Very recently, the Supreme Court took cognisance of the situation where litigants all over the country were facing difficulty to file applications in courts within the period of limitation in the midst of a pandemic. To obviate this barrier and to ensure that the litigants are not constrained to go to courts for filing applications, the Court extended the period of limitation in all matters until further orders.
In Suo Motu Writ Petition No 7492 of 2020, the Madras High Court intervened to uphold the right to have a decent burial under Article 21. In this case, the residents near a Cemetery prevented the burial of a doctor who succumbed to COVID-19. The public servants who accompanied the body were also manhandled by the residents, creating a law and order situation. The Court iterated the guidelines issued by the Ministry of Health and Family Welfare, regarding stigma attached with COVID-19 and the urgent need to counter such prejudices.
Public Interest Litigation
The phrase ‘Public Interest Litigation’ (PIL) stems from American jurisprudence. It was first used by the academic Abram Chayes to signify the practice of lawyers or public spirited individuals who sought court-ordered decrees, to precipitate social change, and not for private dispute settlement. He explained that unlike traditional litigation that concerns parties and their two sides of disagreement, PIL is largely concerned with the element of ‘public interest’.
Indian Judiciary: Liberalising the Doctrine of Locus Standi
Indian judiciary, ever since independence, has been adopting innovative methods to provide access to justice for the weaker sections of the society. Until the 1960s, the concept of litigation was in the elementary stages.
Justice V R Krishna Iyer and Justice P N Bhagwati are responsible for the PIL movement in India. They expanded the doctrine of locus standi (the condition that a claimant seeking a legal remedy should have suffered a legal wrong or an injury which entitles him to maintain an action for redress).
One of the earliest reported PILs is the Hussainara Khatoon v State of Bihar, that dealt with the conditions of under-trials in prisons. In this case, the court declared the right to free legal service and right to speedy justice as fundamental rights and ordered the release of 40,000 under-trials.
In S.P. Gupta v President of India & Ors, Justice P N Bhagwati articulated the concept of PIL and gave it a firm footing. He described PIL as the litigation undertaken by public spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal injury, but who by reason of their socially or economically disadvantaged position are unable to approach the Court for relief.
PILs Should Involve a Real Public Interest
There must be a genuine and real public interest involved in the PIL. This cannot be invoked by persons to pursue their vested interests, enmity, personal causes or political motives. In Holicow Pictures Pvt. Ltd. v Respondent: Prem Chandra Mishra, it was laid down that a person acting bona fide and having sufficient interest in PIL will alone have locus standi.
The Apex court in Gurpal Singh v State of Punjab also noted that while entertaining PILs the Court has to check
(a) the credentials of the applicant;
(b) the prima facie correctness or nature of information given by them;
(c) the information being not vague and indefinite.
Further it was noted that while redressing a public grievance through a PIL, the Court should not encroach into the spheres designated to the Executive and Legislature by the Constitution. Imposters and busy bodies impersonating as public-spirited persons are dismissed at threshold by the Court.
The Relevant Constitutional Provisions Backing PIL
As explained in S.P Gupta, a PIL application can be filed in High Court under Article 226 or in the Supreme Court of India under Article 32. Moreover, the ideological backing of PIL can be sourced to the Preamble of the Constitution which seeks to secure to all its citizens, justice, liberty, equality and fraternity.
PILs are Devised to Protect the Basic Human Rights of the Vulnerable Sections
In People’s Union for Democratic Rights v. Union of India, the court noted that PIL is essentially a cooperative or collaborative effort on the part of the petitioner, the State and the court. This is aimed to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable sections, who constitute the low visibility area of humanity.
In Bandhua Mukti Morcha v Union Of India, it was iterated that when the Court entertains public interest litigation, it does not do so in an adversarial spirit to taunt the executive authority or seek to usurp it. Its attempt is only to ensure observance of social and economic rescue programmes, both legislative as well as executive, framed for the benefit of the have-nots and the handicapped. It is intended to protect them against violation of their basic human rights, which is also the constitutional obligation of the executive.
In Fertilizer Corporation Kamgar v Union Of India, the court emphasised that PIL is a part of the process of participatory justice.
Seminal Changes Brought in by Some Notable PILs
One of the most well known PILs to have brought about seminal social change, is Vishaka v State of Rajasthan. It was filed on behalf of a grassroot level worker who was gang-raped brutally when she tried to prevent a child marriage. This brought to the attention of the court the absence of any domestic law to check sexual harassment at workplace. The court relied on international conventions and norms to frame guidelines to tackle the problem of sexual harassment at workpalce. This came to be known as ‘Vishaka Guidelines’ which was ordered to be implemented until a legislation took shape. It was only in 2013 that a specific law for sexual harassment at workplace was formulated.
Oleum gas leak case is one of the notable judgments in the environmental activism streak of the judiciary. The oleum gas leakage from Shriram Food and Fertilizer unit resulted in the death of a lawyer practising at the Tiz Hazari court and caused damage in the neighbourhood of where the unit is located. The court considered ‘strict liability’ to be insufficient and used ‘absolute liability principle’ to hold them liable for the extent of damage. It reiterated the fundamental right to a safe environment protected under Article 21 and ordered the unit to take all necessary safety measures before reopening.
In Parmanand Katara v Union of India, a petition was filed by a public spirited citizen in response to the news that an injured scooterist succumbed to death after being denied treatment by a doctor. The court emphatically held that it is the obligation of the doctor, be it in the private or public sector, to provide emergency medical aid to a victim of a road accident. The court noted that right to life is of paramount importance and it overrides any technical formalities in cases of emergency aid. Subsequently, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002 was formulated including clauses that complied with the judgment.
What are criminal appeals?
A criminal appeal may be filed in the Supreme Court to appeal against a judgement, order or final decree issued by a High Court in criminal proceedings. A criminal appeal to the Supreme Court may originate in three modes:
- A criminal appeal may be filed within a period of 60 days if the High Court grants a certificate of fitness for appeal. Order XIX of the Supreme Court Rules sets out a model certificate of fitness.
- In cases where the conditions under Article 134 are met there is an automatic right of appeal irrespective of whether the High Court has granted a certificate of appeal.
- The Supreme Court under Article 136 may hear any case on appeal under its Special Leave to Appeal jurisdiction.
When can a HC issue a Certificate to Appeal?
A High Court may issue a Certificate to appeal in two circumstances. First, under Article 134A of the Constitution of India, 1950 when the matter involves a substantial question related to the interpretation of the Constitution (Article 132) or where a substantial question of criminal law may be raised (Article 134). Article 134 uses the phrase ‘fit for appeal’ which extends to substantial questions of law and not to questions of fact (Nar Singh v State of Uttar Pradesh, 1954).
When is there an Automatic Right to Appeal?
There is a second route available only to criminal cases under Article 134. This is an automatic right to appeal. Such an automatic right is available when the High Court has sentenced an accused to death. However, not all death sentences have an automatic appeal. It is only when the High Court has reversed a trial court’s acquittal, or withdrawn a case from a trial court and heard the case itself that an automatic right to appeal exists. There is no need for a certificate in such cases.
The Supreme Court has clarified that for an automatic right to appeal, it is not necessary that the High Court reversed a ‘complete acquittal’ in the trial court. For example, in Tarachand Damu Sutar v State of Maharashtra (1961), the accused was convicted of a lesser offence, but was acquitted of murder at the trial court. The High Court reversed this decision and held him guilty of murder and sentenced him to death. Here, the Supreme Court held that the convicted person was entitled to file an appeal under Article 134.
Besides this, Article 134 also gives Parliament the power to extend the scope of the Supreme Court’s criminal appellate jurisdiction. One such change took place by way of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. This Act allows automatic appeals when the High Court either reverses an acquittal in, or withdraws a case from, a trial Court and then sentences the accused to ten years or more in prison.
What Should a Criminal Appeal include?
The application for a criminal appeal must include the details of the original judgment against which the appeal is being filed, including the name of the judge and the designation of the Court. It should also include details of the conviction such as the relevant provisions of law and the sentence imposed, including any fines.
The application must explain the facts of the case chronologically, the questions of law which are being raised and a list of grounds for the appeal. It may also disclose the grounds for interim relief sought while the appeal is being decided.
A criminal appeal must be filed along with a certified copy of the concerned judgement and a completed Form No. 28. Form No. 28 is used for all kinds of appeals including Special Leave Petitions. So, it must be modified as appropriate for criminal appeals.
A ‘proof of surrender’ also needs to be filed. This is a declaration that the convicted person is in custody or has surrendered after the conviction. The declaration should contain the details of the prison in which they are serving their sentence, and a certificate from a competent officer of the prison.
What are Civil Appeals?
A civil appeal is filed in the Supreme Court to appeal against a judgment, order or final decree of a High Court in India.
A civil appeal can be filed if the High Court (HC) which issued the judgment grants a certificate of fitness for appeal. This must be filed within a period of 60 days from the date the certificate is granted, as per Order XIX of the Supreme Court Rules (an example can be found here).
Apart from ordinary Civil Appeals the Supreme Court has the power under Article 136 to hear any case, from any subordinate court, on appeal under its Special Leave to Appeal jurisdiction.
When can a HC issue a Certificate to Appeal?
There are two grounds on which a civil case can be taken on appeal to the Supreme Court.
The first is under Article 132 of the Constitution of India, 1950. This Article allows appeals in cases that involve a substantial question related to the interpretation of the Constitution. The Article applies to any kind of case that has been heard and decided by a High Court first.
The second ground is under Article 133. This applies specifically to civil proceedings. Such an appeal may be allowed when the HC believes that the case involves a ‘substantial question of law of general importance’ which should be decided by the Supreme Court. An appeal under this ground may also involve an interpretation of the Constitution.
In deciding whether a matter raises a ‘substantial question of law’, the Supreme Court generally considers whether the case raises questions of public importance. It may also consider the impact of the rights of the parties. In Chunilal V. Mehta and Sons Ltd. v Century Spg. & Mfg.Co.Ltd, the Supreme Court held that if the principles of law were already decided and had to be merely applied, it would not qualify as a ‘substantial question of law’.
Appeals under either of these Articles are subject to the High Court’s certification. The HC must certify that the case meets one of the two criteria. It must involves a substantial question of law or interpretation of the Constitution. Additionally, the HC must also believe that this question needs to be answered by the Supreme Court.
What Should a Civil Appeal Include?
An application for a civil appeal must include a chronological list of events leading up to the appeal. It must also specify the grounds for an appeal. It must avoid repeating facts that have already been presented before, and considered by the High Court. Instead, it should highlight the provisions of the judgment which are being challenged, and the reasons for calling these into question.
A certified copy of the concerned judgement, along with a completed Form No. 28 must be attached with the application. Form No. 28 is used for all kinds of appeals including Special Leave Petitions. So, it must be modified as appropriate for civil appeals.
The form should contain any applications for interim relief.