PRACTICE

AND
PROCEDURE
By
Vibha Datta Makhija
Senior Advocate
▪ What Is The Special Leave Jurisdiction of The Supreme Court?

- Article 136 Special leave to appeal by the Supreme Court.

• SLP can be filed against any judgment or decree, sentence or order of any
High Court/Tribunal in the territory of India.

• SLP can not be filed against 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.
▪ Special Leave jurisdiction is a completely discretionary jurisdiction in contrast to
appellate jurisdiction.

▪ It can be filed against any order, but Court exercises restraint from exercising
the jurisdiction expansively.

▪ Its not usually exercised in case of interim orders and is usually exercised in final
orders.
▪ Pritam Singh Vs. State, 1950 SCR 453

▪ The Constitution Bench observed that the Supreme court is vested “wide discretionary power”
under Article 136 and this power is required “to be exercised sparingly and only in exceptional
cases.

▪ Dhakeswari Cotton Mills Ltd. v. CIT, (1955) 1 SCR 941

▪ The Court discussed about the limitations on the discretionary power of the Court. It was
observed that it would be impossible to define the limitations on the exercise of the discretionary
jurisdiction of the Court as given in Article 136.

▪ Kunhayammed & Ors. Vs. State of Kerala, (2000) 6 SCC 359

▪ In this particular case, the subject of discussion was the exercise of the jurisdiction under Article
136 and whether it consisted of the granting of the SLP and subsequently hearing the appeal.
The court has a choice to grant the SLP and if the court decides to not allow this on its findings
then the appellate jurisdiction of the court does not come into existence.

▪ However mere dismissal of the SLP petition does not mean that there is res judicata, it merely
means that the case was not fit for the grant of SLP and it is open to the aggrieved party to
approach the concerned court for review under article 226.
▪ Exclusive Original Jurisdiction

• Suits under Article 131

▪ The Supreme Court possesses Original jurisdiction to decide the disputes arising between
different units of the Indian Federation like
- Centre and one or more states; or
- Centre & any state(s) on one side and one or more states on the other; or
- Two or more states.

▪ In State Of West Bengal vs Union Of India, 1964 SCR (1) 371

This was the first instance when Article 131 was invoked by a State against the Union
Government and Section 4 and 7 of the Act were challenged as being an ultra vires. The State
of West Bengal contended that as the Constitution is federal, the state is sovereignty and the
Parliament does not have the power to pass a law and acquire the state-owned coal fields. The
Supreme Court held that the Indian Constitution is not federal entirely, and limitations are
imposed on the state in many aspects, even though there is a separation of powers.
Article 32
▪ Article 32 is the heart and soul of the Indian Constitution.

▪ The Powers vested in Article 32 are unique in safeguarding the Fundamental Rights not only of citizens but in
certain circumstances rights of non-citizens as well, which are enshrined in Part III of the Constitution. Article
32 confer about enforcement of any of the Rights conferred by this part of the Constitution.

▪ The old maxim “ubi Jus ibi remedium” namely, where there is a right there shall be a remedy has found its
eloquent statement in the provision of Article 32.The guarantee of Fundamental or other Constitutional Rights
have been illusory without effective provisions towards their enforcement.

▪ In Bandhua Mukti Morcha Vs. Union of India, (1984) 3 SCC 361 held that the right to move the Supreme
Court guaranteed in clause (1) can be exercised only through “appropriate proceedings”. The practice of the
court has enunciated the meaning and scope of this expression.
In Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98 the PIL was filed by an advocate on the basis of the news item
published in the Indian Express, highlighting the plight of thousands of undertrial prisoners languishing in various jails in
Bihar. These proceeding led to the release of more than 40,000 under trial prisoners. Right to speedy justice emerged as a basic
fundamental right which had been denied to these prisoners. The same set pattern was adopted in subsequent cases.

A new era of the PIL movement was heralded by Justice P.N. Bhagawati in the case that of S.P. Gupta vs President Of
India , 1981 Supp (1) SCC 87. It was clarified in this case that any member of the public or social action group acting bonafide
shall have the locus to invoke the Writ Jurisdiction of the High Courts or the Supreme Court seeking redressal against violation
of a legal or constitutional rights of persons who due to social or economic or any other disability cannot approach the Court. By
this judgment PIL became a potent weapon for the enforcement of public duties where executed in action or misdeed resulted in
public injury. And as a result any citizen of India or any consumer groups or social action groups can now approach the apex
court of the country seeking legal remedies in all cases where the interests of general public or a section of public are at stake.
▪ Judicial Review forms the basic structure of the Constitution. It cannot be abrogated. Public Law remedy by
way of Judicial review is available both under Article 32 and 226 of the Constitution.
▪ In Kesavananda Bharti Vs. State of Kerala, (1973) 4 SCC 225—Judicial Review part of Basic Structure
▪ In State of W.B. Vs. Committee for Protection of Domestic Rights, (2010) 3 SCC 517 held that Judicial
Review itself part of the basic structure of the Constitution, it cannot be ousted or abridged by even a
Constitutional Amendment.
▪ In National Tax Tribunal (Madras Bar Association) Vs. Union of India, (2014) 10 SCC 1 also held that
The powers of the Supreme Court and High Courts to test the Constitutional validity of legislations can never
be ousted or excluded, nor can their supervisory powers be vested in some other Court.

Exclusion of Judicial Review

▪ The Privileges and immunities of members of Parliament are out of the purview of the ordinary courts. There
shall be freedom of speech in Parliament subject to the provisions of the Constitution.
▪ The Power to grant pardon, suspension, remission and commutation of sentences vested in President is
paramount and cannot be curtailed by any court.
▪ The Court cannot direct the legislature to enact or amend a particular law or the executive to make or amend a
subordinate legislation which the legislation has empowered it to make.
• Article 132
Appeals involving interpretation of the Constitution, arising out of any proceedings in a High Court, Civil,
Criminal or otherwise.

• Article 133- Civil Appeal

Its confined to Civil Appeals only, involving substantial questions of law of general importance other than
the interpretation of the Constitution.

• Article 134- Right Of Appeal

Article 134 (1)(a) and 134 (1)(b) confers upon the accused an absolute right of appeal, whereas Article
134(1)(c)
Confers upon the High Court a discretion to grant a certificate to the accused to appeal in cases not falling
under sub clauses (a) or (b) of Article 1
Section 379 Cr.P.C.- It provides for an appeal to the Supreme Court from any judgment, final order or
sentence in a criminal proceedings of a High Court.

Section 130E of the Customs Act, 1962 It provides for an appeal to the Supreme Court from any
judgment of the High Court on a reference made under Section 130, or any order passed by the
Appellate Tribunal relating, amongst other things, to the determination of any question having relation
to the rate of custom duty or the value of goods for the purpose of assessment.

Section 23 of the Consumer Protection Act, 1986 provides for an appeal to the Supreme Court
from an order made by the National Commission, entertaining complaints where the value of the goods
or services and compensation, if any, claimed exceeds Rupees One Crore.

Section 19(1)(b) of the Contempt of Courts Act, 1971 provides for an appeal to the Supreme Court,
as of right, from any order or decision of Division Bench of a High Court in exercise of its jurisdiction to
punish for contempt.

Section 15(z) of the Securities and Exchange Board of India Act, 1992 provides that any person
aggrieved by any decision or order of the Securities Appellate Tribunal may file an appeal to the
Supreme Court on any question of law arising out of such order.

Section 18 of the Telecom Regulatory Authority of India Act, 1997 provides for an appeal to the
Supreme Court against any order not being an interlocutory order, of the Appellate Tribunal, on one or
more of the grounds specified in Section 100 of Code of Civil Procedure.
▪ Article 137 Review is very limited and cannot be equated with that of an appeal. Review petition can only be
allowed by Supreme Court on ground of error apparent on face of record on being pointed by parties to the
satisfaction of Supreme Court that such an error is manifest in the particular order and it may result in
miscarriage of justice requiring reconsideration and interference.

▪ A curative petition is the last constitutional resort available for redressal of grievances in court after a review
plea is dismissed or has been exhausted.

▪ The concept of curative petition originated from a landmark judgment in Rupa Ashok Hurra V. Ashok
Hurra and Anr., (2002) 4 SCC 388. The concept was evolved by the apex court to prevent the miscarriage
of justice and to prevent abuse of process.

▪ In this case, a five-judge constitution bench of the Supreme Court unanimously held that in order to rectify
gross miscarriage of justice, the court will allow the curative petition filed by the victim.
▪ Article 129 Jurisdiction of the Supreme Court is independent of the Contempt of Court Act, 1972 and the power
under Article 129 cannot be denuded, restricted or limited by the Contempt of courts Act, 1971.
• Suo-moto Contempt Proceedings- Criminal contempt proceedings are maintainable without obtaining
written consent of the Attorney General or Solicitor General, as required under rule 3 of 1975 Rules.
Supreme court can be deemed to have taken suo moto action on bais of materials disclosed in an
application.

▪ Types of Contempt
• Classification of contempt into two categories viz, Civil Contempt and Criminal Contempt.

▪ Civil Contempt of court is committed by breaching orders of the Court or undertakings made to Court, for
example, by deliberately ignoring the terms of an order of injunction which has been obtained from civil court.
Civil Contempt is defined in section 2(b) of the Contempt of Courts Act, 1971.

▪ Criminal Contempt of court interferes with administration of justice. Criminal Contempt is committed
when a publication is made of previous convictions of the defendant during trial; abusive comments about the
judge in court, threatening a witness. Criminal Contempt is punishable because the conduct involved poses a
serious threat to the administration of Justice.
▪ Article 141 of the Constitution of India stipulates that the law declared by the Supreme Court shall be
binding on all Courts within the territory of India. Thus, the general principles laid down, by the Supreme
Court are binding on all persosn including those who are not a party to an order.

▪ Judicial discipline to abide by declaration of law by the Supreme Court, cannot be forsaken, under any
pretext by any authority or Court, be it even the highest Court in a State, obvious to Article 141 of the
Constitution.

▪ Article 143 Powers of President to consult Supreme Court

This Article authorizes the President of India to refer a questions of law or fact of public importance to the
Supreme court and obtain its opinion. Sub-clause (2) of this Article also empowers the President to refer a
dispute of the kind mentioned in Article 131 of the Constitution.

Article 143 does not deal with ‘jurisdiction’ of the Supreme Court, but with the ‘Power’ of the President. It
does not refer to any adjudication at all, but with the consultation.
The references made under Article 143 are not the “law declared by the Supreme Court” under Article 141 of the
Constitution. So, it is not binding on inferior Courts, even though it has high persuasive value. Even if the Opinion
given in the exercise of advisory jurisdiction under may not be binding, it is entitled to great weight.

▪ The First reference made under Article 143 by the President was Special Reference No.1 of 1951, in which the

scope of Article 143 was not discussed. The questions referred by the President were answered by the courts in Re
Delhi Laws Act, 1912, 1951 SCR 747.

▪ In Natural Resources Allocation, In Re, Special Reference No.1 of 2012, (2012) 10 SCC 1, President was a

point as to whether Article 143(1) contemplates even the Reference of a question of law that is “likely to arise.”

▪ In re, Cauvery Water Disputes Tribunal ,(1993) Supp (1) SCC 96, Certain principles with regard Article

143 have been laid down, while answering a presidential Reference with regard to the constitutional validity of
the Cauvery Basin Irrigation Protection Ordinance, 1991.
▪ Transfer of Cases from one Court to another is an incidental and necessary aspect of administration of Justice.

▪ Jurisdiction of the Supreme Court for Transfer of Cases under Section 25 of C.P.C.
Section 24 and 25 of Code of Civil Procedure Code deals with transfers, the former conferring powers of the High
courts, the later conferring power on the Supreme Court. Section 25 of the Code after its amendment in 1976,
confers a new power on the Supreme Court in the widest terms.

Section 25 (1) on the application of a party, and after notice to the parties, and after hearing such of them as
desired to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is
expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court
or other Civil Court in one State to a High court or other civil Court in any other State.

▪ Transfer of case under Section 406 of Cr.P.C.

- The Jurisdiction of Supreme Court to transfer cases under section 406 Cr.P.C. for facilitating or enabling, doing
complete justice, balancing convenience of parties having regard to the fairness of trial, and even balancing of
interests of parties all duly form the provision of transfer.
- Whenever it is made to appear to the Supreme court that an order under this section is expedient for the ends of
justice, it may direct that any particular case or appeal be transferred from one High court to another Criminal
Court of equal or superior jurisdiction subordinate to another High court.
▪ A new Article 139 A was introduced in the Constitution by the 42nd amendment act, 1976 for transfer of
cases i.e. cases involving the same or substantial question of law pending before the Supreme Court and
one or more High Courts or before two or more High Courts and those questions are substantial
questions of general importance.

▪ The object is to avoid multiplicity of adjudications and conflicting opinions.

▪ The Object of transfer of cases is to facilitate quick disposal of cases.

▪ In exercise of the powers conferred by Article 145 of the Constitution, the Supreme Court enacted the Supreme
Court Rules, 1966, which have been subsequently replaced by the Supreme Court Rules, 2013.
▪ The Rules Regulate, inter alia
▪ Part I
▪ Order IV—Advocates
▪ Order V—Business in Chambers
▪ Order VI—Constitution of division courts and powers of a single judge
▪ Order XI—Notices of motion
▪ Part II (Appellate Jurisdiction)
▪ Order XIX—Civil Appeals
▪ Order XX—Criminal Appeals
▪ Orders XXI-XXII—Special Leave Petitions
▪ Orders XXIII-XXIV—Appeals under the special acts
▪ Part III (Original Jurisdiction)
▪ Orders XXV-XXXVII—Original Suits
▪ Orders XXXVIII—Applications for enforcement of fundamental rights (Article 32)
▪ Orders XXXIX-XLI—Applications for Transfer of Cases
▪ Orders XLII-XLV—References
▪ Order XLVI—Election Petitions