The jurisdictions of the Supreme Court of India The Supreme Court of India being the highest court of appeals from both the regular courts and tribunals have been invested with the widest jurisdictions. The Supreme Court of India is the one of the most powerful court in the world and excersises and enjoys the widest powers and functions. It is neither lesser in powerful then the Parliament nor then the Union Executive. Art. 50 clearly provides the independence of Judiciary and non-interferance from the Executive. Art. 129 declares that 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.The literal meanings of the words Court of Record means that the Judgments of the Supreme Court shall be preserved, protected and published and shall be referred and admitted in evidence or judicial proceedings before a court of law or before all the sub-ordinate courts including the Honble Court itself and shall not be subjected to be questioned while they are produced and referred before the Court. In the case of Arundhati Roy In Re, A. I. R 2002 S.C 1375 the Honble Supreme Court has held that the Supreme Court has ample and wide power to punish a person for contempt of court. It is not because of to give the dignity and honour to the individual Judge who is personally attacked or scandalised, but to uphold the dignity and the honour of the judicial institution and to uphold the majesty of the law and of the administration of justice. As I have stated above the Honble Supreme Court has the wide and various jurisdictions. But for the conveniance of application/execution and discussion of the same the founding fathers of the Constitution grouped it in following heads and inserted in the Constitution which are as follows:- 1. Original Jurisdiction:- In my humble opinion the original jurisdiction of the Supreme Court means that jurisdiction wherein the Honble Court will take or intervane the matter in between the Union of India and the State and the states inter se directly without intervance or interferance by any other judicial or quasi-judicial bodies. In the original jurisdiction of the Supreme Court the Honble Court will directly take the cognizance of the matter or the subject matter of the dispute. In the original jurisdiction of the Supreme Court the matter of great importance and the interest of greater numbers of the people of India is concerned and have been involved. The Art. 131 of the Constitution lays down the provisions relating to the original jurisdiction of the Supreme Court. The Art. 131 reads as subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute- (a) between the Government of India and one or more States; or (b) between the Government of India and any State or States on one side and one or more other States on the other; or (c) 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 their said jurisdiction shall not extend to such a dispute.] Hence within the original jurisdiction of the Supreme Court the Honble court will have jurisdiction to entertain the matter in dispute between the government of India and one or more states or between the government of India and any state or states on one side and one or more other states on the other or between two or more states. The last para of Art. 131 is the exception of Art. 131 itself that it limites or restricts the jurisdiction of the Supreme Court that the Honble Court can not take the cognizance of the matter or its 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 their said jurisdiction shall not extend to such a dispute. Furthermore there are some subject matters wherein the jurisdiction of the Supreme Court has been curtailed itself by the Constitution viz. (a)Adjudication of disputes relating to waters of inter-State rivers or river valleys wherein the Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-state river or river valley (Art. 262). In re, Cauvery Water Disputes Tribunal, 1993 (1) SCC 96(11) the jurisdiction of the Supreme Court was excluded. (b) The matters referred to the Finance Commission (Art. 280). (c) The adjustment in respect of certain expenses and pensions in between the Union and the States (Art. 290). 2. Appellate Jurisdiction:- The Supreme Court is the ultimate and final court of appeal. It has vary wide and immense powers and jurisdictions to intervane the matter disposed off by the High Courts if the matter comes before the Supreme Court in appeal after complying the provision under Art. 134-A. The Supreme Court may either affirm or set aside any judgment, decree or final order of a High Court. There are various appellate jurisdictions of the Supreme Court which can be catagorized under the following headings:- (a) Appeal in Constitutional matters; (b) Appeal in Civil Matters; (c) Appeal in Criminal Matters and (d) Appeal through Special Leave. Now let me discuss these jurisdictions of the Supreme Court in details. (a) Appeal in Constitutional matters:- Art.132 of the Constitution lays down the provision of appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases and furthermore provides in clause (1) as 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 Art. 134-A that the case involves a substantial question of law as to the interpretation of this Constitution. Furthermore the clause (3) provides as 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. Hence as per the provision of Art. 132 of the Constitution a matter decided by the High Court in any nature or form either judgment, decree or final order of the same may be open at the door of the Honble Supreme Court if the particular judgment, decree or final order be certified by the concern High Court under Art. 134-A of the Constitution stating that particular judgment, decree or final order of the High Court is required to be intervaned by the Supreme Court because of its involving a substantial question of law as to the interpretation of this Constitution. Under this provision a matter shall be referred/appealled to the Supreme Court only if there is apprehension of miscarriage of justice and there is chances of rectification otherwise not. In the case of Manoji Rao vs. T. Krishna, A.I.R 2001 S.C 623 at p.624 it was held by the Honble Supreme Court that the material on record shall not be interferred by the Supreme Court if the same is well considered by the Courts below or by the High Courts. (b) Appeal in Civil Matters:- Another important and remarkable appeallate jurisdiction of the Supreme Court is the appeal in the civil matters from the High Courts. Any suit of civil nature disposed off by the High Courts either instituted under its original jurisdiction or came before it in its first or second appeal from the subordinate trial courts may be admitted or appealed before the Supreme Court if the same is certified by the High Court under Art. 134-A of the Constitution. Art. 133 of the Constitution deals with the provision of appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters and in its clause (1) it specifically provides as 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 Art. 134-A- (a) that the case involves a substantial question of law of general importance; and (b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court. Hence perusing the above provision under Art. 133 (1) of the Constitution it appears that the Supreme Court will have its appellate civil jurisdiction or it will take the matter in civil appeal from any judgment, decree or final order of the High Courts on the two conditions i.e if the High Court certifies stating the fact that the case involves a substantial question of law of general/common importance and that the question needs to be decided by the Supreme Court. In the case of Abdul KhanderRowther vs. P. K Sara Bai, A. I.R 1990 S.C. 682 at p. 684 it was held by the Honble Supreme Court that the appellant/ plaintiff not challaging the fact/issue of mortgage by conditional sale which was considered and found by the trial court against him and the same was not raised by him as respondant in the defendants appeal before the High Court the appellant/plaintiff was not allowed to agitate the same before the Supreme Court under Art. 133 of the Constitution. Again the person deprived from the judgment, decree or final order of the High Court may urge before the Supreme Court under this jurisdiction on the ground that a substantial question of law as to the interpretation of this Constitution has been wrongly decided. Art. 133(2) lays down as notwithstanding anything in Art. 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 interretation of this Constitution has been wrongly decided. The clause 3 of Art. 133 of the Constitution is the exception of clause (1) and (2) and regulatory in nature which provides as 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. Hence this provision gives the power in the hand of the Parliament to make laws with regards to the regulation of the civil appeal from the judgment, decree or final order of the single bench of the High Court. (c) Appeal in Criminal Matters:- Art. 134 of the Constitution provides the appellate jurisdiction of Supreme Court in regard to criminal matters and in clause (1) it provides as 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- (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or (b) 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 (c) certifies under Art. 134-A 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 Cl. (1) of Art. 145 and to such conditions as the High Court may establish or require. Perusing the above provision under Art. 134 (1)(a) and (b) of the Constitution it appears that an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceedings wherein the High Court has sentenced the accused person with the capital punishment reversing the order of acquittal or has sentenced the accused person with capital punishment after taking into the case of accused in its own file from any subordinate court. Art. 134(1) (c) provides that criminal appeal shall lie before the Supreme Court if the High Court certifies the matter under Art. 134-A stating the fitness or appropriateness of the case for appeal before the apex court. The Constitution has given utmost powers and discretions on the part of the Parliament to regulate the appellate jurisdiction of the Sureme Court. In Clause 2 of Art. 134 it has been contended as 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. In fact clause (2) is the contributory of clause (1) in the instant Art.134. (d) Appeal through Special Leave:- Art. 136 of the Constitution deals with the provision relating to Special leave to appeal by the Supreme Court. It is the discretionary powers of the Supreme Court that by allowing the matter in special leave can take the matter into consideration or disposed off the matter by adjudicating the same if it deems that there is breach or violation of legal or constitutional provisions. Art. 136 reads as special leave to appeal by the Supreme Court and in clause (1) it reads as notwithstanding anything in thsi 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. But this descretion contained in clause (1) is not the absolute one and there is exception in clause (2) which reads as 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. In the case of Mahesh Chander Vs. Delhi Administration, 1991 S.C.C (Cr.) 551 at pp. 556, 557 it was held that the power of the Supreme Court under Art. 136 can be invoked in very rare and exceptional circumstances and in the circumstances when the High Court has acted either perversely or otherwise improperly encroaching and violating the law of general public importance. 3. Advisory Jurisdiction:- Art. 143 of the Constitution empowers the President to consult the Supreme Court in regards to a question of law or fact of public importance. Art. 143 reads as power of President to consult Supreme Court in clause (1) it furthermore states that 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. But here both the President and the Supreme Court is not under the constitutional obligation to seek the consult and provide the opinion. If the President as he deems fit and proper he may seek the legal consultation and the Supreme Court may provide the opinion as because there is mentioning of the word “may” instead of “shall” so it is not obligatory on the both side. But again the clause (2) is the exception to Clause (1) of Art. 143 wherein the dispute relating to the original jurisdiction of the Supreme Court under Art. 131 of the Constitution the Supreme Court is bound to give advise or report to the President about its opinion after hearing the matter. The clause (2) reads as the President may, notwithstanding anything in the provisio to Art. 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion. 4. Writ Jurisdictions:- “If I was asked to name any particular Article in thsi Constitution as the most important-an Article without which this Constitution would be a nullity-I could not refer to any other Article except this one.................. It is the very soul of the Constitution and the very hear of it,”- Dr. Ambedkar in C.A.D. Vol. VII at 953. Now I hereby want to discuss about the writ jurisdiction of the Supreme Court or how the fundamental rights of the people are executed, protected and implemented by the Supreme Court of India. As there are mainly six fundamental rights available to the people in India and out of these six, one is very important right i.e the Right to Constitutional Remedies contained in Art. 32 of the Constitution. The Chairman of the Constituent Assembly Dr. B .R Ambedkar expressed in the Constituent Assembly Debate that the right contained in the Art. 32 is the fundamental of all fundamentals and without the existence of this right the other rights in the Part III will have no meaning and significance. Hence when there is violation/encroachment/breach of the others provisions of fundamental rights then the aggrieved person can go for the shelter of the Honble Supreme Court of India under Art. 32 and to the Honble High Courts of the state under Art. 226 of the Constitution by filing a writ petition against the violator/encroacher state and in some rare cases against the individuals for seeking relief. As soon as a petition is filed as a writ petition then Honble Supreme Court and Honble High Court disposes of the petition perusing the petition and seeing the prima facie case of the petition. Sometimes the writ petition will also be disposed of after contest. If the Honble Courts (Both the Supreme Court and the High Courts) are satisfied that there is in fact violation/encroachment/breach of the any of the fundamental rights then Honble Courts shall issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by the Part III against any person, constitutional, statutory and non-statutory bodies. I hereby feel necessary to give brief description about the nature and the kinds of writs to my dear readers. There are five writs which are as follows:- (i) Habeas corpus (ii) Mandamus (iii) Prohibition (iv) Certiorary and (v) Quo Warranto (i) Habeas Corpus:- “Habeas Corpus” is a Latin term and the meaning of these words is “you may have the body”. This writ is issued by the Honble courts in case of the illegal detention of the victim. By issuing this writ the Honble Court will give directions to the police or the prison authorities to ensure the presence of the victim before the nearest court of Magistrate. Either the victim or his relative or friend can apply for this writ. In the famous case of A.K Gopalan vs. State of Madrass, AIR 1950 SC 27 the Honourable Supreme Court has held that the writ of habeas corpus will be issued against the authorities exercising their functions in mala fide manner and for the ulterior purpose. (ii) Mandamus:- The literal meaning of the word “mandamus” is “the order”. The writ of mandamus is thus an order by the Honourable courts commanding any person, constitutional, statutory and non-statutory bodies to do or forbear to do something in the nature of public duty and in some cases a statutory duty. (iii) Prohibition :- The writ of Prohibition is a such kind of writ by issuing this writ the Honourable Courts prevents an inferior court or tribunal for its act of extra jurisdictional act and also directs the inferior courts to do particular act where there is absence of jurisdiction ( S. Govinda Menon vs. Union of India, AIR 1967 SC 1274.) (iv) Certiorary :- This writ is a writ which is issued by the Honourable Courts quashing the order of the judicial or quasi-judicial body where there is want or excess of jurisdiction; where there is violation of procedure and violation of principle of natural justice and where there is error of jurisdiction. (v) Quo Warranto:- The meaning of words quo warranto is what is your authority. This writ is issued to prevent the person who is illegally appointed to a public office from holding that post. Hence above all are the brief discussions of the law of writs and the laws relating to the fundamental rights. The fundamental rights is of vital importance. At any cost these rights must be protected. The Honourable Supreme Court in the case of Keshvanand Bharati vs. State of Kerala AIR 1973 SC 1461 has also held that the fundamental rights is the basic structure of the constitution and can not be annuled/repealed by the Parliament with effect to frustrate it. Hence above all are the jurisdictions of the Honble Supreme Court of India which is very wide and extensive in nature. Right from the existence of it, it has played a vital and remarkable role to protect the largest democracy of the world. The contribution given by the Supreme Court in the filed of human right, especially in the rights of the women and child, guidance given by it to make fair and clean environment, abolition of child and bonded labour system including women trafficking or immoral trafficking, reformations in the election laws, elemination of the corruptions and free and compulsory education, smooth functioning of public distribution system is appreciable. By liberal interpretation of Art. 21 i.e Right to life and personal liberty and in the case of Maneka Gandhi Vs. Union of India A.I.R 1978 S.C 597 the Honble Supreme Court interpreated the meaning of personal liberty more extensively and inclusively and directing and advising the Parliament to make fair and reasonable laws is of course unforgettable. Further more by establishing the theory of “Absolute liability” in M.C Metha Vs. Union of India (1987) 4SCC 463 it abolished the age old principle of “Strict Liability” laid down by the foreign court in the case of Rayland Vs. Flature thereby establishing the absolute liability of hazardious industries and thereby restraining their tortous liabilityis to escape from responsibilities is also remarkable. Another remarkable contribution given by the ours Honble Supreme Court is the revolution of Judicial Activism played by it. By sawing the seed of Public Interest Litigation in the case of Mumbay Kamagar Sabha Vs. Abdul Bhai till the case of S.P Gupta Vs. Union Of India AIR 1982 SC 149 the seed and the concept of Public Interest Litigation was taken its young tree and so many fruits also have been ripend. Later so many social changes have been taken by this initiation this fact also we can not deny. Last but not the least is that, though there are appropriate actions taken by the Supreme Court to provide social justice but despite of that we are very far from our destination, the lacunea in it is that which is non -execution or improper execution of the order or the guidance/directions of the Honble Court. Lastly I hereby conclude todays my writing stating that all the “We the people of India” should be concerned and bothered at least to keep minimum expectation or standard so that we can claim ourselves to be the citizen of the largest democracy of the world without any hesitation or true Indian. Jai Hind.....................! Soliciting Yours kind suggestions......................! Sourav Subba, B.A (Law) LL.M, WBJS Date: 01.12.2014 Place: Diamond Harbour, Calcutta.
Posted on: Mon, 01 Dec 2014 03:50:14 +0000
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