UPSC IAS exam preparation - Governance in India - Lecture 5

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The Supreme Court

[हिंदी में पढ़ें ]

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1.0 Introduction

The Indian legal system derives its authority from the Constitution of India. The judiciary is often labeled one of the three pillars of Indian democracy, the executive and the legislature being the other two. The presence of an independent judiciary adds weight to the theory of separation of powers. An independent judiciary safeguards the interest of citizens by keeping a check on, and ensuring that the other organs do not go beyond the constitution. The nature and success of a democracy and development of the nation depend much on how the legal system conducts itself.

2.0 CONSTITUTIONAL PROVISIONS

Article 124 – Establishment and constitution of Supreme Court

• There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges. 
• Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted: Provided further that—

1. a Judge may, by writing under his hand addressed to the President, resign his office;
2. a Judge may be removed from his office in the manner provided in clause (4). 2A.The age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide.

• A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and 

1. has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
2. has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
3. is, in the opinion of the President, a distinguished jurist.

Explanation I In this clause "High Court'' means a High Court which exercises, or which at any time before the commencement of this Constitution exercised, jurisdiction in any part of the territory of India.

Explanation II In computing for the purpose of this clause the period during which a person has been an advocate, any period during which a person has held judicial office not inferior to that of a district judge after he became an advocate shall be included.

• A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
• Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4).
• Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.
• No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.

Article 125 – Salaries, etc., of Judges 

1. There shall be paid to the Judges of the Supreme Court such salaries as may be determined by Parliament by law and, until provision in that behalf is so made, such salaries as are specified in the Second Schedule.
2. Every Judge shall be entitled to such privileges and allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and, until so determined, to such privileges, allowances and rights as are specified in the Second Schedule: Provided that neither the privileges nor the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment.

Article 126 – Appointment of acting Chief Justice 

When the office of Chief Justice of India is vacant or when the Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose.

Article 127 – Appointment of ad hoc Judges 

1. If at any time there should not be a quorum of the Judges of the Supreme Court available to hold or continue any session of the Court, the Chief Justice of India may, with the previous consent of the President and after consultation with the Chief Justice of the High Court concerned, request in writing the attendance at the sittings of the Court, as an ad hoc Judge, for such period as may be necessary, of a Judge of a High Court duly qualified for appointment as a Judge of the Supreme Court to be designated by the Chief Justice of India.
2. It shall be the duty of the Judge who has been so designated, in priority to other duties of his office, to attend the sittings of the Supreme Court at the time and for the period for which his attendance is required, and while so attending he shall have all the jurisdiction, powers and privileges, and shall discharge the duties, of a Judge of the Supreme Court.

Article 128 – Attendance of retired Judges at sittings of the Supreme Court

Notwithstanding anything in this Chapter, the Chief Justice of India may at any time, with the previous consent of the President, request any person who has held the office of a Judge of the Supreme Court or any of the High Courts who has held the office of a Judge of a High Court and is duly qualified for appointment as a Judge of the Supreme Court to sit and act as a Judge of the Supreme Court, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that Court:

Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that Court unless he consents so to do.

Article 129 – Supreme Court to be a court of record 

The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

Article 130 – Seat of Supreme Court 

The Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.

Article 131 – Original Jurisdiction of the Supreme Court 

Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute—

1. between the Government of India and one or more States; or
2. between the Government of India and any State or States on one side and one or more other States on the other; or
3. between two or more States, 

if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends:

Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.

Article 131A – Exclusive jurisdiction of the Supreme Court in regard to questions as to constitutional validity of Central laws

Repealed by the Constitution (Forty-third Amendment) Act, 1977, s. 4 (w.e.f. 13-4-1978).

 Article 132 – Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases

1. An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under article 134A that the case involves a substantial question of law as to the interpretation of this Constitution.
2. Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided.

Explanation For the purposes of this article, the expression "final order" includes an order deciding an issue which, if decided in favour of the appellant, would be sufficient for the final disposal of the case.

Article 133 –  Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters

• An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies under article 134A

1. that the case involves a substantial question of law of general importance; and
2. that in the opinion of the High Court the said question needs to be decided by the Supreme Court.

• Notwithstanding anything in article 132, any party appealing to the Supreme Court under clause (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided. 
• Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court.

Article 134 –  Appellate jurisdiction of Supreme Court in regard to criminal matters

• An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court:

1. has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or
2. has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or 
3. certifies under article 134A that the case is a fit one for appeal to the Supreme Court:  Provided that an appeal under sub-clause (c) shall lie subject to such provisions as may be made in that behalf under clause (1) of article 145 and to such conditions as the High Court may establish or require.

• Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law.

Article 134A – Certificate for appeal to the Supreme Court 

Every High Court, passing or making a judgment, decree, final order, or sentence, referred to in clause (1) of article 132 or clause (1) of article 133, or clause (1) of article 134

1. may, if it deems fit so to do, on its own motion; and
2. shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in clause (1) of article 132, or clause (1) of article 133 or, as the case may be, sub-clause (c) of clause (1) of article 134, may be given in respect of that case.

Article 135 – Jurisdiction and powers of the Federal Court under existing law to be exercisable by the Supreme Court 

Until Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction and powers with respect to any matter to which the provisions of article 133 or article 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the Federal Court immediately before the commencement of this Constitution under any existing law.

Article 136 – Special leave to appeal by the Supreme Court

1. Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
2. Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

Article 137 – Review of judgments or orders by the Supreme Court 

Subject to the provisions of any law made by Parliament or any rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.

Article 138 – Enlargement of the jurisdiction of the Supreme Court 

1. The Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer. 
2. The Supreme Court shall have such further jurisdiction and powers with respect to any matter as the Government of India and the Government of any State may by special agreement confer, if Parliament by law provides for the exercise of such jurisdiction and powers by the Supreme Court.

Article 139 – Conferment on the Supreme Court of powers to issue certain writs 

Parliament may by law confer on the Supreme Court power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for any purposes other than those mentioned in clause (2) of article 32.

Article 139A – Transfer of certain cases 

1. Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and the Supreme Court is satisfied on its own motion or on an application made by the Attorney-General of India or by a party to any such case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself: Provided that the Supreme Court may after determining the said questions of law return any case so withdrawn together with a copy of its judgment on such questions to the High Court from which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the case in conformity with such judgment.
2. The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court.

Article 140 – Ancillary powers of Supreme Court 

Parliament may by law make provision for conferring upon the Supreme Court such supplemental powers not inconsistent with any of the provisions of this Constitution as may appear to be necessary or desirable for the purpose of enabling the Court more effectively to exercise the jurisdiction conferred upon it by or under this Constitution.

Article 141 – Law declared by Supreme Court to be binding on all courts 

The law declared by the Supreme Court shall be binding on all courts within the territory of India.

Article 142 – Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc. 

1. The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe. 
2. Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

Article 143  – Power of President to consult Supreme Court

1. If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.
2. The President may, notwithstanding anything in the proviso to article 131, refer a dispute of the kind mentioned in the 3rd  to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.

Article 144 – Civil and judicial authorities to act in aid of the Supreme Court

All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.

144A [Special provisions as to disposal of questions relating to constitutional validity of laws.] Rep. by the Constitution (Forty-third Amendment) Act, 1977, s. 5 (w.e.f. 13-4-1978).

Article  145  – Rules of Court, etc

• Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including —

1. rules as to the persons practising before the Court;
2. rules as to the procedure for hearing appeals and other matters pertaining to appeals including the time within which appeals to the Court are to be entered;
3. rules as to the proceedings in the Court for the enforcement of any of the rights conferred by 
4. rules as to the entertainment of appeals under sub-clause (c) of clause (1) of article 134;
5. rules as to the conditions subject to which any judgment pronounced or order made by the Court may be reviewed and the procedure for such review including the time within which applications to the Court for such review are to be entered;
6. rules as to the costs of and incidental to any proceedings in the Court and as to the fees to be charged in respect of proceedings therein;
7. rules as to the granting of bail;
8. rules as to stay of proceedings;
9. rules providing for the summary determination of any appeal which appears to the Court to be frivolous or vexatious or brought for the purpose of delay;
10. rules as to the procedure for inquiries referred to in clause (1) of article 317.

• Subject to the provisions of  rules made under this article may fix the minimum number of Judges who are to sit for any purpose, and may provide for the powers of single Judges and Division Courts.
• The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under article 143 shall be five: Provided that,where the Court hearing an appeal under any of the provisions of this Chapter other than article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.
• No judgment shall be delivered by the Supreme Court save in open Court, and no report shall be made under article 143 save in accordance with an opinion also delivered in open Court.
• No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion.

Article 146 – Officers and servants and the expenses of the Supreme Court

1. Appointments of officers and servants of the Supreme Court shall be made by the Chief    Justice of India or such other Judge or officer of the Court as he may direct: Provided that the President may by rule require that in such cases as may be specified in the rule, no person not already attached to the Court shall be appointed to any office connected with the Court, save after consultation with the Union Public Service Commission.
2. Subject to the provisions of any law made by Parliament, the conditions of service of officers and servants of the Supreme Court shall be such as may be prescribed by rules made by the Chief Justice of India or by some other Judge or officer of the Court authorised by the Chief Justice of India to make rules for the purpose: Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the President.
3. The administrative expenses of the Supreme Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of India, and any fees or other moneys taken by the Court shall form part of that Fund.

Article 147 – Interpretation

In this Chapter and in Chapter V of Part VI, references to any substantial question of law as to the interpretation of this Constitution shall be construed as including references to any substantial question of law as to the interpretation of the Government of India Act, 1935 (including any enactment amending or supplementing that Act), or of any Order in Council or order made thereunder, or of the Indian Independence Act, 1947, or of any order made thereunder.

3.0 Organization and Hierarchy of the Judiciary

Though India’s is a quasi-federal system, the Constitution of India has not provided for a dual system of Courts. There is a single integrated judiciary in India which administers both Union and State laws. The organization of the subordinate judiciary varies slightly from State to State. At the lowest stage, the two branches of judicial system, civil and criminal, are bifurcated.

The Union Courts and the Bench Courts, constituted under the Village Self Government Acts, which constituted the lowest civil and criminal courts respectively, have been substituted by Panchayat Courts set up under post Constitution State legislation. The Panchayat Courts also function on two sides, civil and criminal, under various indigenous names, such as the Nyaya Panchayat, Panchayat Adalat, Gram Kachari, and the like in some States, the Panchayat Courts are the criminal courts of the lowest jurisdiction, in respect of petty cases.

The Munsiff's Courts are the next higher Civil Courts, having jurisdiction over claims up to Rs. 1,000 to Rs. 5,000 (in case of some specially empowered cases). Above the Munsiffs are subordinate Judges. The District Judge hears first appeals from the decisions of Subordinate Judges and also from the Munsiffs (unless they are transferred to a Subordinate Judge) and he possesses unlimited original jurisdiction, both civil and criminal. Suits of a small value are tried by the Provincial Small Causes Courts.  (Note: both Munsiff and Munsif are accepted spellings)

The District Judge is the highest judicial authority (civil and criminal) in the district since the enactment of the Criminal Procedure Code, 1973. The trial of criminal cases is done exclusively by Judicial Magistrates, except in Jammu & Kashmir and Nagaland, to which that code does not apply. The Chief Judicial Magistrate is the head of the Criminal Courts within the district. In 'metropolitan areas', there are Metropolitan Magistrates. The High Court is the supreme judicial tribunal of the State, having both Original and Appellate jurisdiction. There is a High Court for each of the States, except Meghalaya, Mizoram, Arunachal Pradesh and Nagaland which have the High Court of Assam at Guwahati as their common High Court; Haryana, which has a common High Court (at Chandigarh) with Punjab; and Goa which is under Bombay High Court. The Supreme Court has appellate jurisdiction over the High Courts and is the highest tribunal of the land.

4.0 The Supreme Court

The Supreme Court of India came into being on 28 January 1950; two days after India became a sovereign democratic republic. It is the highest judicial forum, and the final court of appeal in India. The inauguration took place in the Chamber of Princes in the Parliament building. The Chamber of Princes had earlier been the seat of the Federal Court of India for 12 years, between 1937 and 1950, and was the seat of the Supreme Court until the Supreme Court acquired its present premises in 1958.

The Supreme Court of India replaced both the Federal Court of India and the Judicial Committee of the Privy Council at the apex of the Indian court system.

The Supreme Court is the apex Court of the country. Provisions dealing with the Supreme court are contained in Article 124-147 of Chapter IV of Part V of the Constitution. Parliament can make laws regulating the constitution, organization, jurisdiction and powers of the Supreme Court. 

4.1 The structure of the Supreme Court (Article 124)

Article 124 specifies that there shall be a Supreme Court of India consisting of a Chief Justice of India, appointed by the President, and judges. Originally the Supreme Court consisted of a Chief Justice and seven other judges. The number of judges was increased by various amendment acts from 7 to 10 (1956), 13 (1960), 17 (1977) , 25 (1985) and 30 (2008).  In case of appointment of judges, it is mandatory for the President to consult the Chief Justice of India.

The provisions regarding salaries etc. of judges are mentioned in Article 125 of the Constitution. The salaries and allowances are fixed by the Parliament and are fixed high in order to secure their independence, efficiency and impartiality. They form a part of the non votable expenditure in the Annual Financial Statement of the Government (the Budget) and  cannot be changed to their disadvantage, except in times of a financial emergency.

When the office of Chief Justice of India is vacant by reason of absence or otherwise, the duties of the office are performed by some other judge as the President may appoint for the purpose.

There can be ad hoc judges for a temporary period due to lack of quorum of the permanent judges. This could be possible with previous consent of the President (a judge of the High Court duly qualified for appointment as a judge of the Supreme Court to be designated by the Chief justice of India). Various provisions have been inserted with regards to Attendance of Retired judges at sittings of the Supreme Court. The Supreme Court is to be a court of record and sits in Delhi.

No minimum age is prescribed for appointment as a Judge of the Supreme Court, nor any fixed period of office. Once appointed, a Judge may cease to be so, other than by death,

1. on attaining the age of 65 years
2. on resigning his office by writing a letter addressed to the President
3. on being removed by the President upon an address to that effect being passed by a special majority of each House of Parliament (viz. a majority of the total membership of that House and by majority of not less than two-thirds of the members of that House present and voting). The only grounds upon which such removal may take place are 'proved misbehavior' and 'incapacity'.

4.1.1 Qualifications required

The qualifications to be appointed as judge of the Supreme Court are

1. The person must be a citizen of India
2. He must have been the judge of a High Court or of two or more such Courts in succession for at least five years, or
3. An Advocate of a High Court or of two or more such Courts in succession for at least ten years, or
4. The person must be, in the opinion of the President, a distinguished jurist.

A Judge of a High Court or retired Judge of the Supreme Court or High Courts may be appointed as an ad-hoc Judge of the Supreme Court.

A person appointed as a judge of the Supreme Court, before entering upon his Office, has to make and subscribe an oath or affirmation before the president, or some person appointed by him for this purpose. In his oath, a judge of the Supreme Court swears:

1. to bear true faith and allegiance to the Constitution of India;
2. to uphold the sovereignty and integrity of India;
3. to duly and faithfully and to the best of his ability, knowledge and judgment perform the duties of the Office without fear or favors, affection or ill-will; and
4. to uphold the Constitution and the laws.

Article 125 of the Indian Constitution empowers  the Indian Parliament to determine the salary, other allowances, leave of absence, pension, etc. of the Supreme Court judges. However, the Parliament cannot alter any of these privileges and rights to the judge's disadvantage after his appointment. At present,  judges get a salary of Rs.90,000/- and the Chief Justice Rs. 1,00,000 /- per month.

4.1.2 Representation to women, minorities, backward classes

The Supreme Court has always maintained a wide regional representation. It also has had a good share of Judges belonging to religious and ethnic minorities. The first woman judge of the Supreme Court was Justice Fatima Beevi in 1987. She was later followed by Justices Sujata Manohar, Ruma Pal and Gyan Sudha Mishra. Justice Ranjana Desai, who was elevated from the Bombay High Court is the most recent woman judge in the Supreme Court, so that for the first time there were two women (Justices Mishra and Desai) simultaneously in the Supreme Court.

In 2000, Justice K. G. Balakrishnan became the first judge from the dalit community. In 2007 he also became the first Dalit Chief Justice of India. In 2010, Justice SH Kapadia coming from a Parsi minority community became the Chief Justice of India. The current Chief Justice, P Sathasivam, was sworn in on 1 July 2013 and will hold the office till 2014. Thereafter, Justice Shri Rajendramal Lodha held the CJ’s is Justice Shri H.L. Dattu (28 Sept. 2014 onwards).

The constitution under Art-124(4) provides that a judge of the supreme court can be removed by the President after an address by each house of the parliament supported by a majority of the total membership of that house and by a majority of not less then two-thirds of the members of that house present and voting on the ground of proved misbehavior or incapacity.

4.1.3 Independence of opinion

The independence of the Judges of the Supreme Court is sought to be secured by the Constitution in a number of ways. 

1. Though the appointing authority is the President, acting with the advice of his Council of Ministers, the appointment of a Supreme Court Judge has been removed from area of pure politics by requiring the President to consult the Chief Justice of India in the matter.
2. By laying down that a Judge of the Supreme Court shall not be removed by the President, except by a difficult process on ground of proved misbehavior or incapacity of the Judge in question.
3. By fixing the salaries of the Judges by the Constitution and providing that though the allowances, leave and pension may be determined by law made by Parliament, these shall not be varied to the disadvantage of a Judge during his term of office. But it will be competent for the President to override this guarantee, under a proclamation of 'Financial Emergency'.
4. By providing that the administrative expenses of the Supreme Court, the salaries and allowances, etc., of the Judges as well as of the staff of the Supreme Court shall be 'charged upon the revenues of India' i.e., shall not be subject to vote in Parliament.
5. By forbidding the discussion of the conduct of a Judge of the Supreme Court (or of a High Court) in Parliament except upon a motion for an address to the President for the removal of the Judge.
6. By laying down that after retirement, a Judge of the Supreme Court shall not plead or act in any Court or before any authority within the territory of India.

4.1.4 Contempt of Court

The Supreme Court can punish any person for its contempt. Thus, its actions and decisions cannot be criticized and opposed by any body. This power is vested in the Supreme Court to maintain its authority, dignity and honour.

The Parliament is not authorized to curtail the jurisdiction and powers of the Supreme Court. The Constitution has guaranteed to the Supreme Court, jurisdiction of various kinds. However, the Parliament can extend the same. 

The Supreme Court is at once a Federal Court, a Court of appeal and a guardian of the Constitution, and the law declared by it, in the exercise of any of its jurisdictions under the Constitution, is binding on all other Courts within the territory of India.

4.2 Jurisdiction of the Supreme Court

4.2.1 Original jurisdiction

The Original jurisdiction of the supreme court is purely federal in character, and it has the exclusive authority to decide any dispute involving a question of law or fact between the Government of India and one or more states. Article  131 of our Constitution vests the Supreme Court with original and exclusive jurisdiction to determine justifiable disputes between the 

1. Union of India and one or more states,
2. Between the Union of India and any state or states on one side and one or more other states on the other, or
3. Between two or more states.

The Supreme Court in its original jurisdiction is not entitled to entertain any suit where both the Parties are not units of the federation. If any suit is brought either against the State or the Government of India by a private citizen, that will not lie within the original jurisdiction of the Supreme Court. It will have to be brought in the ordinary courts under the ordinary law.

The Supreme Court has no jurisdiction over a dispute arising out of any treaty, agreement, covenant, engagement, 'sanad' or other similar instrument which, having been entered into or executed before the commencement of this Constitution continues in operation or which provides that the said jurisdiction shall not extend to such a dispute. But these disputes may be referred by the President to the Supreme Court for its Advisory opinion.

Certain provisions in the Constitution exclude from the original jurisdiction of the Supreme Court, certain disputes. The determination of these disputes is vested in other tribunals; for example

1. Disputes specified in the provision to Art-360(1)
2. Complaints as to interference with inter-state water supplies, referred to the statutory tribunal mentioned in Art-262 (Since parliament has enacted the Inter-State water Disputes Act,1956)
3. Matters referred to the Finance Commission (Art-280)
4. Adjustment of certain expenses between the Union and the States.

4.2.2 Appellate jurisdiction 

Article 132 provides for an appeal to the Supreme Court from any judgment of the High Court if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution (if the supreme court grants special leave to appeal).

This article has to be read with Article 134A inserted by the Constitution (Forty fourth Amendment) Act, 1978. This article states that if a substantial question of interpretation of the Constitution is involved, the High court must grant a certificate.

Article 133 deals with appellate jurisdiction of the Supreme Court from High courts in civil cases. As amended by the Constitution (Thirtieth Amendment) Act, 1972, the article allows such appeal if

1. The case involves a substantial question of law of general importance, and
2. In the opinion of the High court, the said question needs to be decided by the Supreme Court.

The certificate is issued under Article 134A.  

Article 134(1) allows criminal appeals to the Supreme Courts from High Courts in specified cases. Clauses (a) and (b) involve a death sentence. As per Article 134 (1) (c), if the high court certifies under Article 134A that the case is a fit one for appeal to the Supreme Court, then the appeal is competent.

As a court of appeal, the Supreme Court is the final appellate tribunal of the land. There can be two types of cases: Criminal, in which some criminal activities are involved, and Civil in which there may be disputes regarding property, etc. The appellate jurisdiction of the Supreme Court may be further divided under three heads:

1. Constitutional: In constitutional matters, an appeal lies to the Supreme Court if a high court certifies that the case involves a substantial question of law as to the interpretation of the constitution. If the high court refuses to give the certificate, the Supreme Court may grant Special Leave for appeal if it is satisfied that the case does involve such a question.
2. Civil: In civil cases, an appeal lies to the Supreme Court if a high court certifies that the values of the subject matter of the dispute is not less then Rs.20,000 or that the case is fit for appeal to the Supreme Court. The appellate jurisdiction of the court in civil cases can be enlarged if parliament passes a law to that effect.
3. Criminal: In criminal cases, an appeal lies to the Supreme Court if the high court has on appeal, reversed the order of acquittal of an accused and sentenced him to death or has withdrawn for trial before itself any case from any subordinate court and has in such trial convicted the accused and sentenced him to death.

The Supreme Court under Art-136 enjoys the power of granting Special Leave to appeal from any judgment, decree, order or sentence in any case or matter passed by any court or tribunal excepting court martials.

4.2.3 Writ Jurisdiction

Article 32 imposes duty on the Supreme Court to enforce the fundamental rights. Under this Article, every individual has a right to move the Supreme Court directly if there is infringement on his fundamental rights. The writ jurisdiction sometimes is referred to as original jurisdiction of the Supreme Court, but in the strict sense original jurisdiction relates to the federal chapter of the constitution. Supreme Court is guardian of fundamental rights and has non-exclusive original jurisdiction as the protector of fundamental rights. It has the power to issue writs, such as Habeas Corpus, Quo Warranto, Prohibition, Certiorari and Mandamus. In addition to issuing these writs, the Supreme Court is empowered to issue appropriate direction and orders to the executive.

4.2.4 Advisory Jurisdiction

The Supreme Court has an advisory jurisdiction, to give its opinion, on any question of law or fact of public importance as may be referred to its consideration by the President. The opinion of the Supreme Court can also be invited in cases involving disputes arising out of pre-Constitution treaties and agreements. However, in these cases the Supreme Court can act only in an advisory and not in a judicial capacity. Moreover, the opinion given by the Supreme Court in such cases is not binding upon the government and cannot be treated as a judgment of the Supreme Court.

4.2.5 Revisory Jurisdiction

The Supreme Court under Art-137 is empowered to review any judgement or order made by it with a view to remove any mistake or error that might have crept in the judgement or order. This means that even though all the judgement and orders passed by the supreme court are binding on the courts of India, they are not binding on the Supreme Court.

4.2.6 As a Guardian of the Constitution

While there is no express provision in our Constitution empowering the Courts to invalidate laws, the Constitution has imposed definite limitations upon each of the organs, and any transgression of those limitations would make the law void. It is for the Courts to decide whether any of the constitutional limitations has been transgressed or not, because the Constitution is the organic law subject to which ordinary laws are made by the Legislature which itself is set up by the Constitution. The Court has the powers to declare any enactment which transgresses a fundamental right as invalid. Similarly, in case of inconsistency between Union and State laws in certain cases, the State law shall be void.

5.0 The 42nd Amendment and the Supreme Court

The jurisdiction of the Supreme Court was curtailed by the 42nd Amendment of the Constitution (1976), in several ways. But some of these changes have been repealed by the 43rd Amendment Act, 1977. However, several other provisions which were introduced by the 42nd Amendment Act, 1976 are not repealed so far.

5.1 Administrative Tribunal

Under Articles 323 A-B, the intent was to take away the jurisdiction of the Supreme Court under Art 32 over orders and decisions of Administrative Tribunals. These Articles could, however, be implemented only by legislation. Article 323A has been implemented by the Administration Tribunal Act, 1985. As a result, all Courts of law including the High Court shall cease to have any jurisdiction to entertain any litigation relating to the recruitment and other service matters relating to persons appointed to the public services of the Union, whether in its original or appellate jurisdiction. The Supreme Court has, however, been spared its special leave jurisdiction of appeals from these Tribunals, under Art 136 of the Constitution, as well as its writ jurisdiction under Article 32.

5.2 Judicial Review of amendments

Clauses 4 and 5 were inserted in Art 368 with a view to preventing the Supreme Court from invalidating any Constitution Amendment Act on the theory of 'basic features' of the Constitution. These clauses have been emasculated by the Supreme Court itself in the Minerva Mills case which struck them down on the ground that they are violative of two 'basic features' of the Constitution namely the limited nature of the amending power under Art 368, and judicial review.

five landmark judgments of  supreme court of india – 2018

Lifting ban on entry of women (aged 10-50) inside Sabarimala Temple 

Saying that "Devotion cannot be subjected to gender discrimination", the Supreme Court termed as unconstitutional a ban that prevented women between 10 and 50 years of age (menstrual age) from entering Kerala's Sabarimala temple. Chief Justice Dipak Misra, Justice AM Khanwilkar, Justices RF Nariman and Dhananjaya Y Chandrachud concurred with each other, while J Indu Malhotra dissented saying that courts shouldn't determine which religious practices should be struck down or not.

Aadhaar Act is constitutional but some restrictions apply

A five-judge bench of Supreme Court on September 26, 2018 ruled that the concept of Aadhaar was constitutional. Making it mandatory for availing all government services was, however, unconstitutional. While Aadhaar-PAN linking is mandatory, banks and telecom companies cannot ask people to link their bank accounts and mobile numbers with Aadhaar. This is unconstitutional.

The bench termed the Prevention of Money Laundering Act (PMLA) Rules as well as the notification issued by Department of Telecommunications (DoT) in this regard as unconstitutional. The government tried to bring an ordinance later to bypass this new restriction.

Decriminalistion of Gay Sex - Section 377 partly struck down

The Supreme Court, in a landmark judgment in Sept. 2018, decriminalised gay sex stating that consensual sex between two adults was covered under the right to privacy. A five-judge bench of the Supreme Court headed by CJI Dipak Misra partly struck down Section 377 of Indian Penal Code (IPC) holding it violative of the fundamental right to privacy. However, the Supreme Court said that Section 377 would continue to be in force in cases of unnatural sex with animals and children. Any kind of sexual activity with animals and children remains a penal offence. The Supreme Court held that Section 377 of IPC was a weapon to harass members of LGBTQ-plus community resulting in discrimination against them.

Adultery not a crime anymore

The Supreme Court unanimously struck down a 150-year-old law that considered adultery to be an offence committed against a married man by another man. Defined under Section 497 of the IPC, adultery law came under sharp criticism for treating women as possessions rather than human beings.

The Supreme Court declared Section 497 as unconstitutional. Adultery is no longer a crime but if it leads to someone committing suicide, the act will be treated as a crime - abetment to suicide.

Live-streaming of Supreme Court proceedings

"Sunlight is the best disinfectant," said the Supreme Court bench headed by Chief Justice Dipak Misra that ordered live-streaming and video recording of the court proceedings on September 26, 2018.

Chief Justice Dipak Misra and Justice AM Khanwilkar delivered a common judgment. Justice DY Chandrachud gave a separate but concurring judgment. The Supreme Court said that live streaming would bring in more transparency in judicial proceedings and effectuate the "public’s right to know".

 

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