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.
Admission of Cases Before the Supreme Court
When a case is filed at the Supreme Court, the registry of the Court first examines it for filing defects. These defects may include missing annexures or failure to grant power of attorney. If there are no defects, it is registered as a Special Leave Petition, Writ Petition, or any other category it may belong to. In an event where the registry identifies filing defects, it is identified as an ‘unregistered case’. The party is given the opportunity to ‘cure’ the defect, and once cured, the case is registered as a regular admission matter.
Certain cases, such as statutory criminal appeals (for example, those involving the death penalty), automatically proceed to regular hearings. However, most cases require a preliminary hearing to determine whether they can be ‘admitted’ to the Court.
At the admissions stage, the case is heard by a Bench of two judges who decide whether to ‘admit’ the case for ‘regular hearings’. These admission hearings are conducted every Monday and Friday, and are known as miscellaneous days. A Bench may hear 50-67 cases on each miscellaneous day. In deciding whether to admit a case and issue ‘notice’, the Bench usually hears each matter for only a few minutes.
A miniscule proportion of the cases that are instituted at the admissions stage are admitted for regular hearings. Regular hearings are held on Tuesdays, Wednesdays and Thursdays. During regular hearings, the Court is able to hear arguments from both parties and deliver a judgment based on the merits of the case.
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 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.
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 so 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 is 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, the 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 Narasimha 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 are minimal. They are to be paid Rs. 6000/- up to the admission of the matter, and Rs. 10,000/- once the matter has been finally disposed of, or heard on the regular side.
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 AGs 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 the 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 a 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 the 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 the Government of India unless the proposal in this regard is received through the Ministry of Law and Justice.
Relevant rules: Rules made by the President of India vide Notification, 1987
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 every day. 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 to set 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.
What is a causelist?
The list of cases to be heard by the Court on a particular date is known as the causelist. The causelist is the only means through which parties and lawyers are informed about when their case is going to be heard by the Court.
At the Supreme Court, the causelist is typically displayed in the precincts of the Court. Additionally, it is published on the Supreme Court’s official website the evening before a case is heard.
What does the causelist consist of?
The causelist denotes the Bench hearing the case, the courtroom where the case shall be heard, the case name, the case number, the name(s) of the advocates appearing for the parties, and the serial number. The serial number, also known as the ‘item number’ of a case, denotes the order in which it will be heard by the Bench on a given day. The causelist also mentions the cases in which the Court is expected to deliver a Judgment.
What are the types of causelists?
Daily Causelist of Miscellaneous Matters: A matter that has not yet been admitted by the Court is known as a miscellaneous matter. Mondays and Fridays are ‘miscellaneous days’, reserved exclusively for the hearing of miscellaneous matters by the Court. During these proceedings, the Court decides whether to ‘admit’ the matter, allowing it to proceed to the regular hearing stage, or to dismiss it without regular hearing. The Court may hear miscellaneous matters on Tuesdays, Wednesdays, and Thursdays as well.
The Daily Causelist of Miscellaneous Matters shows the miscellaneous matters that the Court will hear on a particular day. For miscellaneous days, this causelist is published on Thursday of the previous week and Monday of the current week. The miscellaneous matters causelist for non-miscellaneous days (Wednesday, Thursdays, and Fridays) is issued on the Saturday of the previous week.
Daily Causelist of Regular Hearing Matters: Regular hearing matters are those that have been admitted by the Court for regular hearings. This causelist for Tuesday’s regular hearing matters is issued on the Saturday of the preceding week. For Wednesdays and Thursdays, this list is issued on the preceding day.
Weekly List: An advance list of regular hearing matters issued on the Friday of the preceding week.
Supplementary List: The matters that are not listed in the Daily Causelist are listed in the Supplementary List.
How is the causelist generated?
The Registrar of the Court draws up the causelist according to the roster created under the directions of the Chief Justice of India. Fresh admissions hearings are included in the Daily Causelist chronologically (in the order of institution) through a computerised system. There can be no changes made to the causelist once it is published.
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.
What is a Constitution Bench?
Article 145(3) of the Constitution of India states that a bench of a minimum of five judges must hear any case concerning “a substantial question of law” regarding the interpretation of the Constitution or cases that fall under Article 143. Article 143 grants the President the power to refer a “question of law” to the Supreme Court.
Such a bench, consisting of five or more judges which is tasked with deciding larger questions of law is called a Constitution Bench. A Constitution Bench can have five, seven and nine-judges. When the court first decides that a case requires the scrutiny of a Constitution Bench, it first refers it to a five-judge bench. Hence, five-judge benches convene more frequently compared to benches with seven or nine-judges. Further, a seven-judge bench assembles to review decisions made by a five-judge bench, and similarly, a nine-judge bench undertakes the same task for the decisions of seven-judge benches.
Since 1950, the largest number of judges on a Constitution Bench consisted of 13 judges in Kesavananda Bharati v State of Kerala (1973).
What is a “substantial question of law”?
“Substantial question of law” is not defined by the legislature or the Supreme Court. The contours of the concept have taken shape through various decisions of the Court. In 1962, Sir Chunilal V. Mehta and Sons Ltd. v Century Spg. & Mfg. Co. Ltd. laid down the test to determine a question of law as “substantial”:
- Whether the question of law is of “general public importance”
- Whether “directly and substantially affects the rights of the parties”
- The question has not been settled by the Supreme Court of India, or by the Privy Council or the Federal Court.
- There are alternative views on a single question of law.
In Boodireddy Chandraiah v Arigela Laxmi (2007), the Supreme Court defined a “substantial question of law” as something which is not settled by an existing statute or a binding precedent. Additionally, the question of law must be such that it has a “material bearing” on the final decision of a case i.e.the case’s outcome must be contingent upon the resolution of the identified “substantial question of law.”
How is a case referred to a Constitution Bench?
A Constitution Bench reference can happen in two ways.
First, under Article 143 of the Constitution of India, the President of India has the power to refer a “question of law” to the Supreme Court. This “question of law” is heard and considered by a Constitution Bench of a minimum of five-judges.
A smaller bench i.e. a division bench of two or three judges can refer a case to a Constitution Bench if they recognise a “substantial question of law” in an appeal. After the Constitution Bench settles the question, the division bench (of two or three judges) will consider the appeal on the basis of that decision.
The Chief Justice has the discretion to form a Constitution Bench and its composition. There is no discernable method using which the CJI is known to select the judges that form the bench.
On 20 September 2023, Chief Justice of India D.Y. Chandrachud expressed his intentions to make Constitution Benches a “permanent feature” of the Supreme Court. Currently, there is a backlog of 56 Constitution Bench cases across five, seven, and nine-judge matters. The decisions of these cases will have an impact on several pending cases in several high courts and lower district courts. There is also talk about splitting the Supreme Court’s function into a Constitutional Court and a Supreme Appellate Court. Many argue that these changes would expedite several cases pending due to a lack of clarity on the substantial question of law.
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.
How is the Chief Justice of India Appointed?
The Chief Justice of India is the highest ranking Judge at the Supreme Court. Article 124(1) of the Constitution of India, 1950 establishes the Supreme Court of India. Crucially, it adds that the SC that it must have a Chief Justice of India (CJI). The CJI is often called the ‘First among equals’ among the Judges of the SC. When a case is admitted by the Supreme Court, the CJI has the duty to assign the case to a particular Bench. The CJI decides how many judges should hear the matter, and which judges will be on the Bench. Further, the CJI leads the SC Collegium which is responsible for recommending Judges for appointments at High Courts and the Supreme Court.
The President is given the power to appoint SC Judges, including the CJI, under Article 124(2). The Memorandum of Procedure (MoP) for the appointment of SC Judges provides the steps to be taken to appoint a new CJI. The MoP states that the CJI should be the ‘senior-most Judge of the Supreme Court considered fit to hold the office’. The Union Minister for Law, Justice and Company Affairs (Law Minister) writes to the outgoing CJI, asking them to recommend a successor. After receiving the recommendation, the Law Minister forwards it to the Prime Minister of India who advises the President. Ultimately, the President decides whether to approve the recommended appointment for the next CJI.
Further, the MoP provides the procedure for the appointment of a CJI when there are doubts regarding the ‘fitness’ of the senior-most Judge at the SC besides the outgoing CJI. The President, after consulting the outgoing CJI, may consult other SC or High Court Judges ‘as they deem necessary’, as per Article 124(2), and make the appointment for CJI.
If the office of the CJI is vacant for any reason, the MoP states that the President will make an appointment using their power under Article 126 of the Constitution. During the vacancy period, before the President has made an appointment, the MoP states that the senior-most Judge of the Court will perform the duties of the CJI.
Judges issue interim orders during the pendency of a case. Interim orders do not decide the outcome of a case. By issuing interim orders, Judges do not adjudicate on the substantive issues raised in the petition or appeal, but instead grant immediate relief to the parties.
At the Supreme Court, one of the parties may file an ‘interlocutary application’ asking for interim relief. Prayers for interim relief may be made in both appeals and petitions before the Court. Interim relief may be in the form of a restrictive order that preserves status quo between the parties (such as halting the construction of a building on disputed land) or directing the parties to perform a specific action (such as transferring possession of property to the opposite party).
When a party ‘prays’ for interim relief, it must clearly lay out the grounds on the basis of which it is seeking such relief.
Sometimes, interim relief may be granted on an ex-parte basis. This means that the Court hears arguments only by the party praying for interim relief. In an application seeking ex-parte interim relief, the party must institute a ‘notice of motion’, stating the time and place of the application and the nature of the order sought by the party. This notice of motion must be addressed to the opposite party, and is signed by the Advocate-on-Record instituting the motion.
While separate applications for interim relief may be filed in certain cases, grounds for interim relief in Special Leave Petitions and Writ Petitions are laid out in the body of the petition.
Applications may also be made for ‘vacating’ an interim order. In such cases, the interlocutory application shall be processed within three working days from the date of filing and listed before a Bench.
What is an Interlocutory Application?
After the institution of a case, an Interlocutory Application can be filed at the Court claiming relief before the Court delivers its final decision. Interlocutory Applications may be filed for a range of reliefs, some of which include the grant of Interim (or temporary) Relief, the vacation of a stay order, or the grant of anticipatory bail.
At the Supreme Court, no Interlocutory Application can be filed without serving a copy on the Advocate-On-Record of the opposite party. When a party files an Interlocutory Application at the Court, the Application is processed within three days of its filing. It is then listed before an appropriate Bench.
What is an Interlocutory Order?
The relief that the Court grants is delivered in the form of an ‘Interlocutory Order’. The Court issues Interlocutory Orders to prevent irreparable damage to a person or property during the pendency of proceedings. These Orders decide the intermediate or collateral matters in a case. They do not decide its outcome.
An example of an Interlocutory Order is an order by the Court to one of the parties asking them to sell perishable property (such as food items) that is the subject matter of the suit.
What is the difference between an Interlocutory Application and an Application for Interim Relief?
An application for Interim Relief is a type of Interlocutory Application. Interlocutory Applications cover a wide ambit of reliefs, out of which Interim Relief is only one type. Interlocutory Applications may be filed for relief until the suit is decided. However, Interim Relief typically lapses after a specific period of time.
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.
What is a Judgment?
Judgments conclusively decide the outcome of a case. They are judicial opinions that explain what the case is about and how and why the Supreme Court is resolving the case.
After hearing the case, Judges of the Supreme Court pronounce the judgment in open court. Before a Judgment is pronounced, notice is given to the parties in the case and their Advocates-on-Record. A decree or order is subsequently drawn up in accordance with the Judgment.
What are the Components of a Judgment?
Typically, a Judgment contains the facts of the case, the legal questions the Court is resolving, relevant provisions of the law, an analysis of previous cases, arguments of the parties, the reasoning of the Court, and its ratio or conclusive decision. The ratio decidendi of a Judgment is the principle of reasoning that determines the outcome of a case. The observations of the Court are known as the obiter dicta.
Are Judgments of the Supreme Court Binding?
As per Article 141 of the Constitution, a Judgment of the Supreme Court is binding on all courts in India. This includes both principles of law detailed in the Judgment as well as the Court’s interpretation of any other Judgment of the Court. This is known as a system of precedent. The ratio decidendi of a Judgment is binding on all future cases where identical facts and issues are involved. The obiter dicta are not binding.
The judgment that binds the parties is known as the ‘Majority Judgment’, delivered by a majority of the Judges on the Bench. One or more Judges may deliver a ‘Dissent’ or ‘Dissenting Judgment’, where they detail their points of disagreement with the majority Judgment. It is only the Majority Decision of the Court that forms binding precedent.
Once a Judgment is delivered, it cannot be altered or added to, except in the case of clerical or arithmetic errors, or those involving accidental omissions.
What is Jurisprudence?
Jurisprudence is best defined as the philosophy of law. It deliberates on the many facets of the law, as well as the reasoning behind legal principles. Studying jurisprudence helps both judges and lawyers understand the essential principles girding a law. This allows them to discern how the application of the law affects different aspects of society—as well as when legal reform may be required.
When Did It Evolve?
Although jurisprudence—in the West—has its origins in ancient Rome and Greece, modern Western jurisprudence as we know it today largely evolved during the Enlightenment (17th century onwards).
What Are the Major Schools of Jurisprudence?
Jurisprudence is studied through the approaches laid out by various schools. Using these frameworks helps better grasp who benefits or loses from a specific law, as well as how to situate it within a specific cultural context.
Positivist School or Analytical School
The positivist school does not focus on what the law ought to be in an ideal society, but on how to best frame it given the shortcomings of society as it is. Under this school, the law is instituted by the sovereign State. The State is viewed as a necessary evil whose power is needed to facilitate the delivery of justice in an imperfect society.
Some of the major proponents of this school are Jeremy Bentham (1748-1832), Thomas Erskine Holland (1835-1926), John Austin (1790-1859), John Salmond (1862-1924), H.L.A. Hart (1907-1992), and Joseph Raz (b. 1939).
This school examines the purpose for which a law has been enacted. Under this school, the law is not viewed as part of the larger historical evolution of society or as an arbitrary regal diktat. Instead, it is understood as the product of pure human reason—and its aim is to uplift society.
Some of the major proponents of this school are Hugo Grotius (1583-1645), Immanuel Kant (1784-1804), G.W.F. Hegel (1770-1831), and Ronald Dworkin (1931-2013).
The historical school views law as the outcome of social development, steeped in changing cultural and political mores. As a result, it is primarily concerned with observing the historical evolution of laws themselves.
Some of the major proponents of this school are Montesquieu (1689-1755), Friedrich Carl von Savigny (1779-1861), and Henry Maine (1822-1888).
This school of thought is less concerned with the principles underlying law, and more with how the law impacts society. This school of thought seeks to balance State and individual welfare.
Some of the major proponents of this school are Auguste Comte (1798-1857), Montesquieu (1689-1755), and Herbert Spencer (1820-1903).
The school is concerned with understanding the law as it is practised, as opposed to how it is written. the school asserts that the cultural motivations and biases of the Judge or lawyer are inseparable from their readings of the law. In short: legal realism examines human influences on the drafting and application of the law.
Some of the major proponents of this school are Karl Llewellyn (1893-1962) and Oliver Wendell Holmes (1841-1935).
This school is rooted in the feminist gaze—which advocates for social, political, and economic equality between the sexes. By routing its analysis through specific social categories, feminist jurisprudence genders laws otherwise thought to be neutral—even as they were largely designed by White men. A product of second-wave feminism from the 1960s, this has led to progressive legal readings of women’s rights and violence against women.
Some of the early proponents of this school are Ann C. Scales (1952-2012), Martha Fineman (b. 1943), and Nicola Lacey (b. 1958).
Critical Legal Theory
This expanding school seeks to interrogate the assumed ‘neutrality’ and ‘objectivity’ of the law. Developed in the 1970s, this school rests on the assumption that the law is political.
By studying how it is shaped by internal cultural and political biases, critical legal theory aims to expose why the law often leads to unjust outcomes for specific social groups. Critical legal theory primarily draws from socialist as well as postmodernist critical theories. The latter developed post World War 2, and was popularised by the likes of Antonio Gramsci (1891-1937), Michel Foucault (1926-1984), and Jacques Derrida (1930-2004).
Some of the early proponents of this school of jurisprudence are Robert W. Gordon (b. 1941), Duncan Kennedy (b. 1942), and Roberto Mangabeira Unger (b. 1947).
What Is An Order?
An order, as per Section 2(14) of the Code of Civil Procedure, 1908 (CPC), refers to a formal decision by a Civil Court that is not a decree.
A decree, as per S. 2(2) of the CPC refers to a formal expression of adjudication by the Court that decides the rights of those parties involved in the suit. A decree can either be preliminary; or issued when further proceedings are required to determine the suit’s outcome; or final, after which the Court disposes of the suit.
Unlike a decree, an order does not conclusively establish the rights of the parties. That is, it does not imply that the suit has been closed. It is simply a directive issued towards either of the parties. It can arise in a suit upon presentation of a complaint by one of the contesting parties.
Classes of Orders
Interim or Interlocutory Orders
Judges issue interim orders while the case is still pending before the Court. These grant immediate relief to the contesting parties regarding issues that may have arisen while the case is being tried. They settle lesser issues as they emerge from the proceedings.
Interim orders do not affect the outcomes of the case itself, as the Judge does not adjudicate on the issues raised in the appeal. For example, assume a construction company wants to build a mall on land nearby a residential area. The residents approach the Court to stop the construction process, in the fear that it will affect the surrounding environment and their quality of life. In this case, before the Court hears the case and comes to a verdict on it, the residents can request it to grant interim relief to prevent the construction from beginning. If the relief is granted the construction will stop for the duration of the proceedings—whether it will continue or not after the proceedings depends on the Court’s final verdict in this case.
Visit SCO’s Procedure page for more information on Interim Orders.
The final order is that which adjudicates the verdict of the suit, after which the suit is disposed of. This is the same as a judgment.
Types of Orders
There are two broad types of orders: appealable and other orders.
Appealable orders are those against which a party can file an appeal. As per S. 104 of the CPC, orders that determine costs payable by parties; decide matters of public nuisance; on petitions for arrest or injunction based on insufficient grounds; or orders that impose a fine or arrest, can be appealed by the parties. Further, a party may also appeal orders where the Court has decided that the party approached the wrong forum to resolve their dispute. Such appeals cannot be further appealed.
As per S. 105 of the CPC, other orders are those orders made by a Court exercising its jurisdiction that cannot be appealed, unless explicitly allowed in the CPC.
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.
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.
Review petition – Features and Function
A review petition is filed before the Supreme Court when a party asks the Court to decide the validity of an earlier Order or Judgment by the Supreme Court itself. When a review petition is accepted, a binding decision of the SC can be reversed or modified.
Usually, the SC is asked to decide cases on ‘appeal’, when a party challenges a decision of a lower court, such as a District Court or a High Court. However, the grounds for accepting a review petition are more limited than the grounds of an appeal. In civil matters, the SC may review a case when there is an ‘error apparent on the face of the record’, such as a mistake regarding the law or the facts or ‘for any other sufficient reason’. In criminal cases, the grounds for review are only allowed in cases where there is an apparent error.
When a Judgment or Order is delivered by the SC the party will receive a copy. From the date that they receive the copy of the Judgment or Order, they may file a review petition within 30 days.
What does a Review Petition Contain?
A review petition must begin by providing the Court with information about the petitioners, the respondents. Next, it must give details of the Order or Judgment which it is asking the Court to ‘review’. The petition must be accompanied by a certificate from the Advocate-on-Record (AoR) (a lawyer who is permitted to argue in the SC) filing the review. The AoR will certify that it is the first application for review and that it is based on grounds permissible under the Supreme Court Rules.
The grounds for the petition need to be clearly laid out in its contents. The petition must also contain brief facts of the case explaining how the Order or Judgment is affecting one’s rights.
Usually, the petition is sent to the same Bench which pronounced the Judgment that is being challenged. For example, the SC delivered the Judgement in the Sabarimala Temple Entry case in September 2018, and ruled that the temple’s exclusion of women from entry was unconstitutional. Over 50 review petitions were filed against the Judgment in the following month. In November 2018 the same 5-Judge Bench that decided the Sabarimala Temple Entry case heard the review petitions as well. In November 2019, the Majority (in a 3:2 split) delivered a Judgment referring the case to a larger 9-Judge Bench, arguing that there were large constitutional questions to be answered. Justices Chandrachud and Nariman, who dissented, stated that the Court was meant to consider review petitions only on the grounds of factual or legal error.
What is the Source of the Supreme Court’s Power to Review Judgments?
Article 137 of the Constitution of India, 1950 permits the Supreme Court to review Judgments or Orders that the Court has itself delivered. Article 145 states that the Supreme Court may make rules specifying the grounds for reviewing a Judgment or Order. However, the Article further provides that any laws enacted by Parliament can override these rules. For example, on June 28th 2021 the SC rejected a review petition that sought reconsideration of the Court’s decision in the Maratha Reservations case, where it was held that States did not have the power to identify backward classes for the purposes of providing reservations. In August 2021, Parliament enacted The Constitution (One-Hundred and Fifth) Amendment Act, 2021 to restore States’ powers to identify backward classes.
A review petition can be filed under Order XLVII of the Supreme Court Rules, 2013. The rules were created by the SC using the powers granted by Article 145. The rules specify that the grounds for accepting a review petition in civil cases are limited to those mentioned in Order XLVII, Rule 1(1) of the Code of Civil Procedure, 1908. Under the Code the SC may review a case when there is an ‘error apparent on the face of the record’ such as a mistake regarding the law or the facts, or ‘for any other sufficient reason’.
The rules limit the grounds for review even further for criminal cases, restricting it to instances where there is an ‘error apparent on the face of the record’.
Prominent cases that involved Review Petitions:
In 2013 a 3-Judge Bench of the Supreme Court held that the National Eligibility Cum Entrance Test (NEET) for admission to undergraduate and postgraduate medical/dental courses was unconstitutional. The Union Government filed a review petition after the Judgment was delivered. In 2016, the SC accepted the review petition and overturned their 2013 decision, allowing the Union to administer NEET for admission to undergraduate and postgraduate medical and dentistry programmes.
In 2011 the SC upheld the conviction and death sentence given to Lashkar-e-Taiba terrorist Mohammad Arif for his role in the Red Fort attack in 2000 where three people were killed including two army jawans. He was convicted and sentenced to death by a Sessions Court, which was upheld by the Delhi High Court,. However, in September 2014 a Constitution Bench of the SC in Mohd. Arif @ Ashfaq v The Reg. Supreme Court of India held that death row prisoners had a right to have their review petitions heard orally in open court by a 3-Judge Bench. Mohd. Arif’s review petition challenging his death sentence was allowed in 2016.
The Supreme Court and lower courts may ask for and accept sensitive and confidential information from government agencies or other persons in ‘sealed covers’. These envelopes can be accessed only by Judges. The contents of sealed covers in court proceedings are inaccessible to the other parties to the case. The practice of Judges asking for evidence in sealed covers and making decisions based on such evidence is known as ‘sealed cover jurisprudence’.
When are sealed covers used?
Sealed covers are typically used when the information submitted to the Court by government agencies or by other persons is sensitive and confidential. In these situations, the Court requests information in sealed covers to ensure ‘complete justice’. This ensures that the investigation is unaffected and that there is no adverse impact on the party submitting the information.
Where Does the Court Derive the Power to Ask for ‘Sealed Covers’?
Order XIII Rule 7 of the Supreme Court Rules, 2013, states that no person has the right to access the information contained in a sealed cover prepared under the directions of the Chief Justice or the Court. Only with the permission of the Chief Justice and the Court can persons access the sealed cover.
Solicitor General and Additional Solicitor General
The Law Officers other than the Attorney General
The Solicitor General [SG] is the second-highest Law Officer in India. Whereas the 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-month’s 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 those of the 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.
Special Investigation Team (SIT)
What is a Special Investigation Team (SIT)?
SITs are bodies specifically constituted to investigate a specific crime. Unlike other investigative agencies or teams, SITs usually investigate severe crimes or crimes that carry serious allegations. SITs mostly include officers from Indian law enforcement agencies selected on the basis of their merits and experience at the discretion of the authority composing the SIT.
Who can appoint an SIT?
Authorities that appoint an SIT are namely the Supreme Court of India, Union Government and State Government. The Supreme Court can appoint one after overseeing the merits and submissions of a case. If the Court believes that the investigation was biassed or unfair, it has the discretion to appoint an SIT. Similarly, the Union and State governments can also set up such teams to probe cases that need to be reinvestigated or important matters that need to be investigated thoroughly. High Courts can form SIT as well.
What is their responsibility?
SITs are formed to ensure a fair investigation. A wide variety of crimes, such as those that may affect the country at large, serious crimes or financial crimes, are usually placed in the hands of an SIT. For example, SITs were formed for the investigation of the anti-sikh riots of 1984, the 2002 Gujarat riots, fake vaccines during Covid-19, and as an oversight body to monitor tax evasion. These crimes are usually handed over to the SIT after there are reasons to believe that the police were incapable of unbiased and competent investigation.
SITs’ responsibilities and powers are determined by the authority forming them. In some cases, the SIT may be asked to initiate proceedings and prosecute certain cases as well. The powers that are exercised by the SITs during the course of their investigation are usually clarified by the authority appointing them. There is no definitive list of powers and responsibilities that an SIT holds. SITs are expected to provide regular updates on the investigation to the authorities that composed them. This way the authority gets to supervise all instances of the investigation. It is a form of investigation with oversight that guarantees fairness.
By the end of the investigation, the SIT has to submit a report. The report is a detailed account of their investigation. It includes everything that is required to be known including investigation procedure, interviews, discovered evidence, investigative methodology, findings etc. The report concludes the role of the SIT. The report can be used by the authorities at their discretion. The report can be accepted or rejected by the authority.
In Ram Jethmalani v Union of India, the petitioners stated that the Government of India failed in tackling corruption, prosecuting entities who indulged in tax evasion and offshore storage of funds. The Court favoured the petitioners and acknowledged the need of an SIT to investigate the allegations. The results of this SIT report were kept in seal covers and not revealed to the petitioners.
In National Human Rights Commission v State of Gujarat the Supreme Court had directed the Gujarat Government to form an SIT to investigate the 2002 Gujarat Riots. The SIT was also instructed to investigate claims made by Mrs. Zakia Jafri in the case. The SIT filed a report and closed the investigation granting a ‘clean chit’ to the 63 accused, including then Chief Minister Narendra Modi. This report was also challenged by Mrs. Jafri in the Supreme Court. On June 24th, 2022 the Supreme Court upheld the report made by the SIT. The SIT is still actively investigating the Gujarat Riots case.
The Uttar Pradesh Government had set up an SIT to probe into the Kanpur violence involving gangster Vikas Dubey. 8 police personnel were killed in the Kanpur violence allegedly at the hands of Vikas Dubey. Vikas Dubey was also killed two days later by the police when he allegedly attempted to escape. The SIT was tasked to find information and links between the gangster and the police, illegal wealth, weaponry, call detail records, property, etc. The SIT submitted a report where a link was found between Vikas Dubey and the police. The report also found details on police officials who helped Vikas Dubey and his gang in all his criminal activities. It further recommended that there should be a probe in the property owned by Dubey.
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.
What is a Stay Order?
A Stay Order is formally known as a temporary injunction.
An injunction is issued by a Court in the form of an Order. It directs a party to the suit to either perform a certain action or to refrain from performing an action. Injunctions are meant to offer relief to an injured party. They are to be mandatorily followed. They can be applied for by both the plaintiff and defendant. They cannot be targeted against third parties, the Court, or any judicial officer.
There are two types of injunctions: permanent and temporary.
A permanent injunction permanently prohibits the action, even after the Judgment is passed. It is ordered after hearing the arguments put forth by the parties to a suit. A permanent injunction is a type of decree.
A temporary injunction, or Stay Order, temporarily prevents a party from performing a certain kind of act. It can be in force either until the Court issues a fresh order, or until the suit is disposed of. The Court is to always notify the opposing party of the injured party’s Stay Order application.
What Does A Stay Order Look Like?
Suppose a city’s corporation starts dumping garbage in a residential area without notice. The residents, concerned about the effects this has on the environment and their quality of life, file a case at the Court seeking damages.
The proceedings are now ongoing. However, the residents realise the Court will take time to deliver a verdict—the case could carry on for months or even years. If the garbage dumping continues unabated for as long as the case is tried, the environment and the living standards of the residents would further deteriorate.
So, the residents approach the Court requesting a temporary injunction of a specific kind. To protect their health and community, they request the Court to order the corporation to halt the dumping until it reaches a verdict.
After considering the application, the Court grants the Stay Order. Bound by the Court, the corporation stops the dumping until the case is closed.
When Is A Stay Order Granted?
In 2019, the Supreme Court outlined three aspects it considers before granting a Stay Order. The first is that the Order should not benefit the party violating the law. The second is that the Order should not harm or injure any of the parties. The third is that there should be a prima facie case to grant the Stay Order.
More specifically, Order 39 of the Code of Civil Procedure, 1908 specifies the nature of temporary injunctions in India, as well as the consequences of breaching them. A Stay Order may be granted if any property relevant to the suit is in danger of being damaged or sold by one of the parties, if the defendant plans to destroy or dispose of their property in order to defraud their creditors, or if the defendant seeks to cause injury to either the plaintiff or the disputed property.
The Court may also grant Stay Orders of a specific duration to restrain the defendant from continuing to breach a contract or commit injuries against a plaintiff. These Orders can be requested by the plaintiff at any point of the suit, whether before or after a Judgment is arrived at. A Stay Order can be directed towards a corporation body to restrain its actions—in such a case, the order is binding on all members and employees of the organisation.
If requested by a party to the suit, the Court has the power to order the interim sale of a property. On application by any party to a suit, the Court may also order the detention or inspection of property related to the suit.
What Happens If A Stay Order is Breached?
Breaching specific Stay Orders allows the Court to attach the property of the offender. Disobeying a stay order may also result in a person being detained in civil prison. Any attachment of property cannot be enforced for longer than a year. If the Order is still being breached at the end of the period, the Court may sell the attached property.
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.
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 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 the 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 and 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.
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.
What Are Vacation Benches?
The Supreme Court of India takes multiple breaks in a year—during summer, winter, and on other religious holidays. Summer breaks are approximately held for seven weeks and usually last from mid-May up to the first week of July. The Court also takes week-long breaks for Dussehra and Diwali, as well as for Christmas during the last two weeks of December.
During these vacation periods, the Chief Justice of India may appoint single Judges or constitute special Benches called Vacation Benches to hear ‘matters of urgent nature’ or to clear the Court’s backlog.
A Vacation Judge may sit on their own, or a Division Bench may be constituted. Vacation Benches are usually decided based on the availability of Judges and not according to seniority.
The Origins of Vacation Benches
Vacation Benches can be traced back to the colonial era. British Judges sailed back home for respite from the Indian summer heat and returned only in the monsoon months. During this break, it was an accepted practice to mail Judgments to India instead of physically sitting in Court. Today, vacations are viewed as a necessary break for not just lawyers and Judges, but for the dispensation of justice as well.
When Do Vacation Benches Sit?
Six Vacation Benches are usually constituted during the summer vacation, each comprising of no more than two Judges and sitting for six days at a time. Division Benches sit regularly during the summer vacation to hear urgent admission matters as well as old regular hearing matters identified as urgent by the Supreme Court Registry.
The Vacation Judge sitting by themselves exercises all the powers of a Judge in Chambers, as well as all the powers of the Court with respect to matters specified in Order VI Rule 6 of the Supreme Court Rules.
Nature of Matters
The cases heard by Vacation Benches usually pertain to the award of the death penalty, habeas corpus or an appeal against wrongful imprisonment, human rights violations, elections, bail, and evictions. However, Vacation Benches do not hear matters involving a substantial interpretation of the Constitution. The Chief Justice may also constitute a Bench of any composition as well as direct a particular case or class of cases to be listed before a particular Bench.
Litigants may approach the Court with their pleas, and if the Court ascertains that these pleas are indeed urgent, the Vacation Bench will hear the case on merits.
The Registrar prepares, publishes, and ports the Advance List of such cases to the Supreme Court website. No case is listed for regular hearing during vacation unless it has been certified by the Registrar. The listing of all urgent matters during vacation is regulated by the Registrar.
The Court also appoints a Vacation Officer for each month of the year. Their contact details are ported to the Court website for the purpose of hearing urgent matters on Saturdays, holidays or after Court hours on working days.
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 the 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 an order should not be passed. It also orders 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, or a government body, to perform the 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 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.