Articles 124 to 147 - The Supreme Court
- Legal Journey
- Oct 29
- 28 min read
The Union
Part V
(Articles 52 to 151)
The Union Judiciary
Chapter IV
(Articles 124 to 147)
Table of Contents 💻
- The Supreme Court is the final interpreter and guardian of the Constitution.
- The Supreme Court is also the guardian of the Fundamental Rights of the People.
- It is the highest Court of appeal in civil and criminal matters.
- The Supreme Court was inaugurated on January 28, 1950, replacing the British Privy Council and succeeded the Federal Court of India which was established under the Government of India Act, of 1935.
Article 124. Establishment and constitution of the Supreme Court.
Clause (1) - There shall be a Supreme Court of India
- It shall consist of a Chief Justice of India, and
- Such other number of Judges as the Parliament may by law prescribe.
- Using the power under this clause, the Parliament has enacted the Supreme Court (Number of Judges) Act, 1956.
- The Parliament has from time to time brought a number of amendments to this Act to increase the total number of Judges in the Supreme Court.
- Presently, the total strength of the Supreme Court is 34 Judges ( 1CJI and 33 other Judges).
- The last amendment to the act was done by the Supreme Court (Number of Judges) Amendment Act, 2019.
Clause (2) - This clause provides for the appointment of the Judges to the Supreme Court.
- The original Article before the 99th Constitutional Amendment Act, 2014 provided that the Judges shall be appointed by the President after consultation with such Judges of the Supreme Court and the High Courts in the States as the President may deem necessary.
- This process of consultation was only required for the appointment of the other judges of the Supreme Court.
- No consultation was required for the appointment of the Chief Justice of India.
- Till 1973, the practice was to appoint the senior most Judge of the Supreme Court as the Chief Justice of India.
- However, in April of 1973 this practice was broken by the Government and three Senior Judges of the Supreme Court were ignored and the 4th most Senior Judge was appointed as the Chief Justice of India.
Union of India V. Sankalchand Sheth (1977 SC)
- This case was related to Article 222.
- It was held that the term “consultation” meant full and effective consultation.
- Consultation does NOT mean concurrence.
- Hence, the President is NOT bound by the consultation.
S. P. Gupta V. Union of India (1982 SC) (decided 1981) [First Judges Case]
- It is popularly known as the Judges Transfer case or the First Judges case.
- In this case, the Supreme Court agreed with the meaning given to the term “consultation” in the Sankalchand Sheth case.
- It further held that the term “consultation” had the same meaning in Article 124(2), 217 and 222 of the Constitution.
- The Court further held that the decision of the Government can ONLY be challenged if it is based on mala fide and irrelevant considerations.
-> Hence, ultimate power to appoint Judges now vested in the Executive.
Supreme Court Advocates on Record Association V. Union of India (1993 SC) [Second Judges Case]
- In this case, the S. P. Gupta's case was overruled by a 9 judges bench.
- The Court held that in the matter of appointment of the Judges of the Supreme Court and the High Courts, the Chief Justice of India should have primacy.
- The Court held that the view of the Chief Justice of India shall be formed after taking into account the views of 2 senior most Judges of the Supreme Court.
- The Collegium system was set up by this judgment.
- However, it was also provided that NO appointment of any Judge can be made unless it is in conformity with the opinion of the Chief Justice of India.
- The appointment of Chief Justice of India shall be on the basis of seniority.
- “Consult” will be interpreted to mean “concurrence” (Purposive Interpretation)
In Re Presidential Reference (1999 SC) [Third Judges Case]
- The Court held that the consultation process to be adopted by the Chief Justice of India requires consultation of Plurality of Judges.
- The sole individual opinion of the Chief Justice of India does NOT constitute “consultation” within the meaning of Article 124.
- In matters of appointment of Judges to the Supreme Court, the CJI must consult 4 senior most judges of the Supreme Court, and
- If 2 Judges give adverse opinions, the CJI must not send the recommendation to the Government.
- It was again reiterated that NO appointment of any Judge can be made unless it is also in conformity with the opinion of the Chief Justice of India.
- In matters of transfer of High Court Judges, in addition to the 4 senior most Judges of the Supreme Court,
- Consultation of the 2 Chief Justices of the relevant High Courts is also required (one Court where transferred from and the one Court which is receiving the Judge).
- In matters of appointment of High Court Judges, The CJI is required to consult 2 senior most judges of the Supreme Court.
- The decision of collegium in all matters must be based on consensus.
- Unless the opinion of the collegium is in conformity with that of the CJI, NO recommendation is to be made.
99th Constitutional Amendment Act, 2014
- It amended Articles 124(2), 127 and 128.
- It also inserted Articles 124A, 124B, and 124C.
- The National Judicial Appointments Commission Act, 2014 was also passed.
- By this Amendment, the appointment of Judges was to be recommended by the National Judicial Appointments Commission.
- After this Amendment, NO consultation of the CJI or collegium was required.
Supreme Court Advocates-on-Record Association V. Union of India (2015 SC) [Fourth Judges Case]
- The Court held the National Judicial Appointments Commission Act, 2014 to be unconstitutional and void.
- The 99th Constitutional Amendment Act, 2014 was struck down.
- It was held that the amendment infringes the independence of the Judiciary.
- The Collegium System stands revived.
Clause (2) - A Supreme Court shall hold office until he attains the age of 65 years
- Provided:-
May resign to the President,
May be removed in accordance with Clause (4)
Clause (2A) - Age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide.
Clause (3) - Qualifications to be a Supreme Court Judge are:-
Citizen of India, and | ||
5 years as High Court Judge, OR | 10 years as Advocate of High Court, OR | Is in the opinion of the President, a Distinguished Jurist. |
Clause (4) - It provides for the removal process of a Supreme Court Judge.
- Only two grounds are provided for removal of a Supreme Court Judge which are Proved Misbehaviour OR Incapacity.
- A Supreme Court Judge can ONLY be removed by an order of the President.
- But, for the order to be passed the following criteria is to be followed.
- Firstly, an address is to be presented to each House of Parliament.
Clause (5) - It declares that the Parliament is empowered to regulate by law:-
- The procedure for the presentation of an address, and
- The investigation and proof of misbehaviour or incapacity of a Judge.
Clause (4) - The address so presented under Clause (4) must then be passed by a majority of Total Membership of the House (50% +1 of total membership) and
- Majority of at least 2/3rd of members present and voting.
- Both of these together are known as a Special Majority.
- Such Majority is to be achieved by Both the Houses of Parliament.
- After being passed by the Parliament, it is then presented to the President.
- Who can then by an order remove such a Judge.
Clause (6) - Every person appointed as Judge of the Supreme Court, before entering his office must make and subscribe an oath or affirmation to the President of India.
- In the form set out in the 3rd Schedule.
Clause (7) - When a person has held the office as a Judge of the Supreme Court, he shall NOT :-
Plead OR Act,
In any Court or any authority,
Within the territory of India.
Article 125. Salaries, etc. of Judges
Clause (1) - Such salaries as determined by the Parliament by law.
- Until such a provision is made, the 2nd Schedule is to be followed.
Clause (2) - Such privileges, allowances, and rights relating to leave of absence and pension, as determined by the Parliament by law.
- Until such a provision is made, the 2nd Schedule is to be followed.
- Provided, the privileges, allowances, nor his rights relating to leave of absence and pension, shall NOT be varied to his disadvantage after his appointment.
Article 126. Appointment of acting Chief Justice
- When the office of Chief Justice is vacant, OR
- When the Chief Justice is for any reason absent,
- Then, the duties of the office shall be performed by such other Judge of the Court as the President may appoint for this purpose.
Article 127. Appointment of ad hoc Judges
Clause (1) - When the Quorum of the Court is NOT attainable.
- The Chief Justice of India may,
- With the consent of the President of India, and
- Consultation with the Chief Justice of the concerned High Court.
- Request a Judge of the High Court to attend the sitting of the Supreme Court as an ad hoc Judge for such period as may be necessary.
- The Judge must be qualified to be a Supreme Court Judge.
Clause (2) - When a Judge has been appointed as ad hoc Judge under Clause (1).
- It shall be his duty to attend the sittings of the Supreme Court whenever his attendance is required.
- While attending, he shall have all the jurisdiction, powers and privileges and shall discharge the duties of a Supreme Court Judge.
Article 128. Attendance of retired Judges at sittings of the Supreme Court
- The Chief Justice of India may,
- With the consent of the President of India,
- Request any retired Judge :-
Of the Supreme Court, OR
Of the Federal Court, OR
Of a High Court who is duly qualified for appointment as a Judge of the Supreme Court.
- To sit and act as a Judge of the Supreme Court.
- If such person accepts then,
- While sitting and acting as Judge of the Supreme Court,
- He shall be entitled to such allowances as the President may by order determine, and
- Have all the jurisdiction, powers and privileges of a Supreme Court Judge.
- But, he shall NOT exercise any other duties of a Supreme Court Judge.
- Provided, any appointment under this Article is allowed only when the person to be appointed CONSENTS to it.
Article 129. Supreme Court to be a Court of Record
- It 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.
- A Court of Record is such a Court whose records are admitted to be of evidentiary value and they are NOT to be questioned when they are produced before any Court.
- Once a Court is made a Court of Record, its power to punish for contempt necessarily follows from that position.
Contempt of Courts Act, 1971
- This Act defines the powers of courts for punishing contempt of courts and regulates their procedure.
- It also provides for judges to be tried for Contempt of Court.
- A contempt of Court may be punished with simple imprisonment for a term which may extend to 6 months or with fine which may extend to Rs. 2000 or with both.
Rajeshwar Singh V. Subrata Roy Sahara (2014 SC)
- The Jurisdiction of the Supreme Court is independent of the provisions of the Contempt of Courts Act, 1971.
- If there is no proper compliance of the provisions of the Contempt of Court Act, it would NOT deter or take away the constitutional powers of the Supreme Court under Article 129.
Delhi Judicial Service Association V. State of Gujarat (1991 SC)
- Under Article 129, the Supreme Court has the power to punish a person for the contempt of not only itself but as well as of its subordinate courts.
- This power is inherent in the Supreme Court being a Court of Record.
- This inherent power is necessary to safeguard and protect the subordinate judiciary which forms the very back bone of administration of justice.
Article 130. Seat of Supreme Court
- It declares the seat of the Supreme Court to be Delhi.
- But it also empowers the Chief Justice of India, with the previous approval of the President, to appoint any other place for the sitting of the Supreme Court.
Jurisdiction of the Supreme Court
- Jurisdiction is the area in which, or the subject matter over which, power can be exercised.
- The Supreme Court has the following types of Jurisdictions :-
Original | Appellate | Advisory | Writ | Special Leave Petition |
Article 131. Original jurisdiction of the Supreme Court
- It declares that the Supreme Court shall have exclusive original jurisdiction in any 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.
- If the dispute involves any question of law OR of fact, on which the existence or extent of a legal right depends.
- This means that the Court has NO jurisdiction in matters of political nature.
- Provided, the jurisdiction shall NOT extend to any dispute which arises out of any :-
Treaty,
Agreement,
Covenant,
Engagement,
Sanad, OR
Other similar instruments.
- Which was entered into or executed before the commencement of this Constitution and still continues in operation, OR
- Which provides that the said jurisdiction shall NOT extend to such a dispute.
- The Supreme Court in its original jurisdiction CANNOT entertain any suits brought by private individuals against the Government of India.
- However, Article 32 confers original jurisdiction on the Supreme Court to enforce Fundamental Rights.
Appellate Jurisdiction of Supreme Court
- The Appellate Jurisdiction of the Supreme Court can be divided into four categories :-
Constitutional Matters (Article 132)
Civil Matters (Article 133)
Criminal Matters (Article 134)
Special Leave to Appeal (Article 136)
Article 132. Appellate Jurisdiction of Supreme Court in appeals from High Court in certain cases
Clause (1) - An appeal shall lie to the Supreme Court of India from any :-
Judgment, or | Decree, or | Final Order |
Of a High Court, whether | ||
Civil, or | Criminal, or | Other Proceeding |
- If, the High Court certifies under Article 134-A
- That the case involves a substantial question of law,
- As to the interpretation of the Constitution.
Clause (3) - If such a certificate has been granted, any party in the case may appeal to the Supreme Court.
- On the ground that any such question has been wrongly decided.
- The term “other proceeding” includes all proceedings other than civil and criminal.
- For example, revenue proceedings.
What is a substantial question of law?
- A substantial question of law is a legal issue that is significant enough to affect the outcome of a case and requires clarification or interpretation by a higher court.
- It's not just a technical or academic question, but one with real implications for the rights of the parties involved.
- A question is NOT a substantial question of law if it has been decided by the Supreme Court in a previous case.
Is the Court bound to hear the appeal if a Certificate under Article 134-A has been issued?
- NO, Even after the certificate is granted by the High Court, the Supreme Court may refuse to hear the appeal if it is satisfied that the appeal is NOT competent.
- This was held in the case of Syedana Taher V. State of Bombay (1958 SC)
44th Constitutional Amendment Act, 1978
- This amendment inserted Article 134-A, which is a requirement of certificate by the High Court for the purposes of appeal to the Supreme Court.
- Articles 132, 133 and 134 were also amended accordingly to reflect this requirement.
Article 134-A. Certificate for appeal to the Supreme Court
-- Every High Court, passing or making a judgment, decree, final order, or sentence,
- Referred in Clause (1) of Articles 132, 133 or 134.
May, on its own motion, if it deems fit to do so, and
Shall, if an oral application is made, by or on behalf of the aggrieved party, immediately after the passing or making of such judgment, decree, final order, or sentence.
- Determine, as soon as may be, the question whether a certificate of the Nature referred to in Clause (1) of Articles 132, 133 or 134, as the case may be, may be given in respect of that case.
- Hence, under Article 134-A, it is an obligation on the High Court to consider the question regarding grant of certificate immediately on the delivery of Judgment.
- Either on own motion, OR on oral application of an aggrieved party.
Article 133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters
Clause (1) - It provides that an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court.
- If High Court certifies under Article 134-A that :-
The case involves a substantial question of law of general importance, and
In the opinion of the High Court, the said question needs to be decided by the Supreme Court.
- The word “needs” suggests that there has to be a necessity for a decision by the Supreme Court.
- For example, Two views are possible regarding the question and the High Court takes one of the said views, OR
- When there is a conflict of views between different High Courts.
Clause (2) - Notwithstanding Article 132, any party appealing to the Supreme Court under Clause (1), may urge
- One of the grounds in such appeal that
- A substantial question of law as to the interpretation of the Constitution has been wrongly decided.
Clause (3) - NO appeal to the Supreme Court from any judgment, decree, or final order of ONE Judge of a High Court.
- But this is unless Parliament by law otherwise provides.
Note - For the purpose of appeal under Article 133, the pecuniary value of the subject-matter of the suit is NO consideration at all.
Article 134. Appellate jurisdiction of the Supreme Court in regard to criminal matters
Clause (1) - It provides that an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court.
- If the High Court :-
(a) Has on appeal - reversed an order of acquittal - and sentence the accused to death; OR
(b) Has withdrawn for trial before itself - any case from any subordinate court - and in such trial convicted the accused and sentenced him to death; OR
(c) Has certified under Article 134-A that the case is a fit one for appeal to the Supreme Court.
Provided an appeal as to sub-clause (c) is subject to any rule made under Article 145 and also to any such conditions as High Court may establish or require.
Clause (2) - It empowers the Parliament to extend the appellate jurisdiction of the Supreme Court in criminal matters.
- In exercise of this power, the Parliament has enacted the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970.
- Section 2 of the said act, in addition to Clause (1) of Article 134, extends the appellate jurisdiction to matters where the High Court has:-
(a) On Appeal - reversed an order of acquittal - and sentenced him to Life Imprisonment OR any imprisonment of over 10 years; OR
(b) Withdrawn for trial before itself - any case from any subordinate court - and in such trial convicted the accused and sentenced him to Life Imprisonment OR any imprisonment of over 10 years.
Article 135. Jurisdiction and powers of the Federal Court under existing law to be exercisable by the Supreme Court
- As previously discussed, the Supreme Court when it was established, replaced the Federal Court.
- Hence it took over its jurisdiction as well, which is provided under this Article.
- This Articles provides that in cases where Articles 133 and 134 does NOT apply, AND
- The matter is such that the Federal Court would have had appellate jurisdiction over this matter immediately before the commencement of this Constitution.
- Then the Supreme Court shall exercise appellate jurisdiction over such matters.
Article 136. Special leave to appeal by the Supreme Court
Clause (1) - It begins with a non-obstante clause and hence overrides the whole chapter IV of Part V ,i.e. The Union Judiciary.
- It provides that the Supreme Court may in its discretion,
- Grant special leave to appeal from any :-
Judgment, or | Decree, or | Determination, or | Sentence, or | Order |
In any cause or matter, | ||||
Passed by Any Court or Tribunal |
Kunhayammed V. State of Kerala (SC 2000)
- The Court held that Article 136 opens with a non-obstante clause and conveys a message that even in the field covered by the preceding articles, jurisdiction conferred by Article 136 is available to be exercised in an appropriate case.
Clause (2) - Clause (1) shall NOT apply to any:-
Judgment, or | Determination, or | Sentence, or | Order |
Passed or made by | any Court/tribunal | ||
if it is constituted by or any | law relating to the Armed Forces |
- Article 136 vests wide powers in the Supreme Court.
- These powers are in the form of special residuary powers.
What is the difference between Article 136 and Articles 132 to 135?
- The powers of the Supreme Court under Article 136 are NOT subject to any of the limitations contained under Articles 132 to 135.
- The main points of distinction between these articles are :-
The term used under Articles 132 to 135 is “final order”, while under Article 136 the term used is “order”.
- Hence, there is no qualification attached to the term “order” in Article 136.
- As a result, the Supreme Court can grant special leave to appeal even against interlocutory orders.
- An interlocutory order is a court order issued during the pendency of a case that does not finally determine the rights or liabilities of the parties, but rather addresses a specific procedural or intermediate issue.
Under Articles 132 to 135 appeal only lies against the final order of the High Court.
- But, under Article 136, the Supreme Court can grant special leave to appeal against Any Court or tribunal.
- Hence, an appeal from any subordinate Court can also be entertained before the Supreme Court.
D. C. Mills V. Commissioner of Income-tax, W. B. (1955 SC)
- The Court held that the power under Article 136 being an exceptional and overriding power has to be exercised sparingly and with caution and only in special extraordinary situations.
- Beyond that, it is NOT possible to fetter the exercise of this power by any set formula or rule.
Haripada Dey V. State of West Bengal (1956 SC)
- The Supreme Court held that it will grant special leave ONLY if there has been gross miscarriage of justice or departure from legal procedure.
- Such as, which vitiates the whole trial or if the finding of fact were such as shocking to the judicial conscience of the Court.
Delhi Judicial Service Association V. State of Gujarat (1991 SC)
- The Court held that under Article 136 the Supreme Court has wide power to interfere and correct the judgment and orders passed by any court or tribunal in the country.
- This basically confers the power of judicial superintendence over all the courts and tribunals including subordinate courts of Magistrate and District Judge.
- The Supreme court has therefore supervisory jurisdiction over all courts of India.
Management of D.T.C. V. Majalay (1978 SC)
- In petty matters, the Court may refuse to decide even on a question of law.
- It is NOT as if once special leave is granted, the Court is bound to decide every question of law, be it big, small or petty.
Article 137. Review of judgments or orders by the Supreme Court
- The Supreme Court shall have power to review any judgment pronounced or order made by it.
- But, this is subject to any law made by Parliament, OR
- Any rule made under Article 145.
The power to review its judgment can be exercised when :-
Discovery of new and important matters of evidence; or
Prima facie mistake or error; or
Any other sufficient reason.
- In a review petition, an error of substantial nature ONLY can be reviewed.
R. D. Sugar V. V. Nagary (1976 SC)
- A review of any judgment of the Supreme Court is an exceptional phenomenon, and is to be permitted only where a grave and glaring error OR other well established ground is made out.
Rupa Ashok Hurra V. Ashok Hurra (2002 SC)
- The Court held that in order to rectify gross misscarriage of justice in its final judgment which cannot be challenged again, the court will allow curative petition by the victim of miscarriage of justice to seek a second review of the final order of the Court.
- However, the court has laid down certain specific conditions for the court to entertain such a curative petition under its inherent power to prevent floodgates of unnecessary petitions seeking their second review.
- These requirements are the following:-
Court reaffirms that litigants are barred on challenging final decisions.
But in cases of miscarriage of justice it would be its legal and m-obligation to rectify the error.
The petitioner will have to establish that there was a genuine violation of principles of natural justice and fear of the bias of the judge and judgment adversely affected him.
The curative petition must accompany certification by a senior lawyer relating to the fulfilment of the requirements.
The petition is to be sent to the three judges of the Bench who passed the judgment affecting the petition.
If the majority of the judges on this bench conclude that the matter needs hearing before the same bench (as far as possible) which may pass appropriate order it should be listed.
They could also impose "exemplary costs" of the petitioner if his pleas lacked merit.
Article 138. Enlargement of the jurisdiction of the Supreme Court
Clause (1) - It empowers the Parliament to confer on the Supreme Court with such additional jurisdiction and powers with respect to any of the matters mentioned in the Union List as it thinks fit.
Clause (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, but
- ONLY 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 :-
Direc | tions | Orders | Writs | ||
Including nature | writs in the of | ||||
Habeas Corpus | Mandamus | Prohibition | Quo Warranto | Certiorari | Or any of them |
For any other than mentioned (2) of | purpose those in clause Article 32 |
Article 139-A. Transfer of certain cases
- It was inserted by the 42nd Constitutional Amendment Act, 1976.
- But it was substituted by the 44th Constitutional Amendment Act, 1978.
Clause (1) - On an application either by:-
(a) the Attorney-General of India; OR
(b) By a party to the case; OR
(c) On its own motion.
- If the Supreme Court is satisfied that the case -
Involves same or substantially the same question of law; AND
Is pending before the Supreme Court and one or more High Court; OR
Before 2 or more High Courts,
- And, that such question is of general importance, then
- It may withdraw and dispose of the case themself.
- Provided, The Supreme Court may after disposing of the said question of law return any case to the High Court with a copy of its judgment, and
- Then the High Court will dispose of the case in accordance with such judgment.
Clause (2) - It empowers the Supreme Court to transfer any case, appeal or other proceeding which is pending before any High Court, to another High Court.
- This power is to be exercised by the Supreme Court when it thinks that such transfer will be expedient to do so for the end of justice.
Article 140. Ancillary powers of Supreme Court
- Parliament is empowered to confer upon the Supreme Court supplemental powers (additional powers) as may be necessary to enable the Court to exercise its jurisdiction more effectively.
- But, such supplementary powers shall NOT be inconsistent with any of the provisions of the Constitution.
Article 141. Law declared by Supreme Court to be binding on all Courts
- The Judgment declared by the Supreme Court shall be binding on all Courts within the territory of India.
Does this mean that even the Supreme Court is bound by its previous decisions?
- NO, The Supreme Court is NOT bound by its own decision.
- “All Courts” means all courts excluding the Supreme Court of India.
Stare Decisis
- It is a latin maxim which means “to stand by things decided”
- This principle is embodied under Article 141.
- It is also known as the Doctrine of Precedent.
Ratio Decidendi
- It is another latin maxim which means “the reason for deciding”
- It is the Ratio decidendi of a case which is binding on the Courts.
- This is because Ratio decidendi can ONLY be laid down after discussion of relevant provisions and case-law on the subject.
- Ratio decidendi of a judgment is NOT to be discerned from a stray word or phrase read in isolation.
- It has to be found out only by reading the entire judgment.
- A stray sentence in a judgment without a focused argument CANNOT be considered as a ratio of such judgment.
Doctrine of Prospective Overruling
- We already established that the Supreme Court is NOT bound by any of its previous decisions and can overrule it if deemed necessary to do so.
- This doctrine means that any decision made in any case will ONLY have effect from a future date without affecting any of the past decisions.
- The Doctrine of Prospective Overruling allows the court to overrule its previous decision without harming any of the actions taken because of the previous judgment.
Obiter Dicta
- It is a latin maxim which means “That which is said in passing”
- They are NOT strictly binding as precedent on the courts as compared to the ratio decidendi.
- However, they still hold persuasive value over courts.
- Hence, they need to be considered as the case may be.
Is the decision of the Supreme Court ONLY applicable on future proceedings?
- NO, the decision of the Supreme Court is binding on all pending proceedings also and NOT ONLY on future proceedings.
What happens when there is a conflict between judgments of the Supreme Court?
- The judgment of the larger bench is to be followed.
How can the Supreme Court overrule its own decision?
- ONLY a larger bench of the Supreme Court can overrule its previous decision.
- EVEN a co-equal bench cannot do so.
Article 142. Enforcement of decrees and orders of Supreme Court and orders as to discovery etc.
Clause (1) - In exercise of its jurisdiction, the Supreme Court may pass any decree or order as may be necessary to do complete justice in the matter pending before it.
- Such order or decree will be enforceable throughout the territory of India.
- In such a manner as prescribed by law made by Parliament.
- Until such provisions are made, they are to be enforced as prescribed by the President.
Clause (2) - The Supreme Court shall have all and every power to make any order for the purpose of:-
- Securing attendance of any person, or
- The discovery or production of a document, or
- The Investigation or punishment of any contempt of itself.
- But, this power is subject to any law made by Parliament on this behalf.
Article 144. Civil and judicial authorities to act in aid of the Supreme Court
- It provides that all civil and judicial authorities,
- In the territory of india,
- Shall act in aid of the Supreme Court.
Spencer and Co. V. Vishwadarshan Distributors (1995 SC)
- The Supreme Court has held that under Articles 141, 142 and 144 an order of the Supreme Court, even if it is in the form of a request, is binding on High Court and
- If it is flouted by the High Court it is open to the Supreme Court to initiate contempt proceedings against the erring judges of the High Court under the Constitution.
- The Supreme Court has a singular Constitutional role and correspondingly all authorities, civil or judicial in the territory of India have an assisting role towards it.
E. S. P. Rajaram V. Union of India (2001 SC)
- The Supreme Court examined the scope and extent of the power vested on the Supreme Court under Article 142.
- The Court held that the provision contains NO limitation regarding the causes or circumstances in which the power can be exercised nor does it lay down any condition to be satisfied before such power is to be exercised.
- The exercise of the power is left completely to the discretion of the Highest Court of the country and its order or decree is made binding on all courts and tribunals throughout the territory of India.
- However, this power is NOT to be exercised to override any express provision.
Note - The power to do ‘complete justice’ in any “cause” or “matter” is plenary in nature which is entirely of different level and of a different quality.
- Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional power of the Supreme Court.
Some examples of powers used under Article 142 are :-
Transferring a case from one Special Judge to another Special Judge and NOT to the High Court.
Awarded enhanced compensation to the claimant when he had suffered 60% disability due to loss of right hand in an accident due to fault of the truck driver.
Dissolved a Hindu Marriage by mutual consent by waiving the statutory period of waiting.
Can issue guidelines and directions including commands if need be.
Note - The provisions of Article 142 CANNOT be resorted to impose the sentence less than the minimum sentence.
- Hence, where the minimum sentence is provided by the Act, the court cannot impose less than minimum sentence.
Article 143. Power of President to consult Supreme Court
Clause (1) - It provides that if at any time it appears to the President that:-
(a) A question of law OR fact has arisen or is likely to arise, AND
(b) The question 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 such a question for the consideration of the Supreme Court, and
- The Court may after such hearing as it thinks fit,
- Report to the President its opinion thereon.
Clause (2) - This clause empowers the Supreme Court to have jurisdiction even on those matters which are excluded by the Proviso to Article 131,
- But ONLY if the President refers such a question to the Supreme Court.
- For such questions, the Supreme Court is bound to give its opinion.
- But, for questions under Clause (1) the Supreme Court is NOT bound to give its opinion.
In Re Kerala Education Bill (1958 SC)
- The Court expressed the view that the advisory opinion of the Supreme Court under Article 143 though entitled to great respect is NOT binding on Courts because it is NOT law within the meaning of Article 141.
In Re Special Courts Bill (1979 SC)
- The Supreme Court held that the views expressed by it in exercise of its advisory jurisdiction is binding on all Courts in the territory of India.
- The Court also suggested that the reference should NOT be vague and general but must be made on specific questions, otherwise the Court is NOT bound to answer.
Cauvery Water Disputes (1992)
- The Court stated that advisory opinions are 'entitled to great weight and respect' and 'will normally be followed,' but deliberately avoided resolving whether they are binding.
Article 145. Rules of Court etc.
Clause (1) - The Supreme Court is empowered here to make rules regulating generally the practice and procedure of the Court.
- But such rules can ONLY be made with the approval of the President.
- And all such rules will be subject to any law made by Parliament.
Clause (2) - Rules made under this Article may fix the number of Judges who are to sit for any purpose, and
- May provide for the powers of single judges and division courts.
- But this is subject to Clause (3).
Clause (3) - It declares the minimum number of judges to be five (5) for the purpose of:-
Deciding any case involving a substantial question of law as to the interpretation of the Constitution, OR
Hearing any reference made under Article 143.
- Provided, where the Supreme Court is hearing an appeal under any of the provisions of this Constitution,
- Except for Article 132,
- And in such appeal, the bench consists of less than five judges
- But, in the course of appeal, the court is satisfied that the appeal involves a substantial question of law as to the interpretation of the Constitution and
- Such determination is necessary for the disposal of the case.
- Then, such Court shall refer the question for the opinion to the Court constituted as required under Clause (3).
- On receipt of such opinion as is referred, the Court shall dispose of the appeal in conformity with such opinion.
Clause (4) - All Judgments of the Supreme Court are to be delivered in open Court.
- No report is to be made under Article 143 unless an opinion is also delivered in open Court.
Clause (5) - All judgment and opinions delivered by the Supreme Court can ONLY be delivered with the concurrence of a majority of the Judges present at the hearing.
- Dissenting judges can also pronounce their judgment or opinion even though it won’t be an operational judgment or opinion.
Union of India V. Kamini Jaiswal (2017 SC)
- The Chief Justice of India has the prerogative to constitute a Bench notwithstanding any judicial order to the contrary.
- The Chief Justice is the first amongst equals, as far as the roster is concerned.
- He has the power to constitute the Benches of the Court and allocate cases to the Benches so constituted.
Shanti Bhushan V. Supreme Court of India through its Registrar (2018 SC)
- The Constitution is silent on the role of the Chief Justice of India.
- There is NO specific provision relating thereto either in the Constitution or even in other law.
- The phrase “among equals” is generally relatable to the judicial function designed to emphasize the fact that voices of the members of a particular bench which may include ‘Chief Justice’ are given equal weight and that in deciding cases, the opinion of the ‘Chief Justice’ also carries same weight and is no different from other Members of the Bench.
- In a given case, there is a possibility that the view of ‘Chief Justice’ may be a minority view and in the eventuality the outcome of the case would be what majority decides.
- The word “first” signified ONLY the fact that the Chief Justice is the senior most Judge of the Court.
- In this role, he is NOT empowered to exercise ‘leadership’ on the Court, rather he is expected to be the spokesperson and representative of the Judiciary in its dealings with the Executive, Government and the community.
- The Court also held that the task of constitution of Benches and allocation of specific cases to those Benches can more smoothly be performed by the Chief Justice and discharge of such a function by the Collegium would be unworkable and lead to many practical difficulties.
Article 146. Officers and servants and the expenses of the Supreme Court
Clause (1) - Appointments of officers and servants of the Supreme Court shall be made by the Chief Justice of India.
- Provided, The President may by rule require that in particular cases (to be specified in the rule), NO person not already attached to the Court shall be appointed to any office connected with the Court.
- But, such appointments can be done after consultation with the Union Public Service Commission.
Clause (2) - Conditions of services of officers and servants of the Supreme Court shall be such as may be prescribed by the rules made by the Chief Justice of India.
- But these conditions of service will be subject to any law made by the Parliament.
- Provided, Any rule made under this clause which relates to salaries, allowances, leave or pensions, shall require the approval of the President.
Clause (3) - The administrative expenses of the Supreme Court, including ALL salaries, allowances and pensions payable to officers and servants of the Court shall be charged upon the Consolidated Fund of India.
- Any fees or other money taken by the Court shall form part of the Fund.
Article 147. Interpretation
- In Chapter IV of Part V [The Union Judiciary]; and
- In Chapter V of Part VI [The State Judiciary].
- Any reference to any substantial question of law as to the interpretation of the Constitution of India shall construed to include references any substantial question of law as to the interpretation of the Government of India Act, 1935; OR
- The Indian Independence Act, 1947; OR
- Any order made under any of the 2 laws.
Frequently Asked Questions
Q) What is the Doctrine of Prospective Overruling?
A) This doctrine allows the Supreme Court to overrule a previous decision prospectively, meaning the new interpretation applies to future cases only.
Q) Is the Supreme Court bound by its previous decisions?
A) No, the Supreme Court can overrule its own decisions through a larger bench if it deems it necessary.
Q) What is a Curative Petition?
A) A Curative Petition (as introduced in Rupa Ashok Hurra v. Ashok Hurra, 2002) allows a litigant to seek a second review of a Supreme Court judgment in cases of gross injustice or violation of natural justice.
Q) Can the Supreme Court’s advisory opinions under Article 143 be binding?
A) The legal position is complex and unresolved:
Not binding on the President: The President may follow or ignore the advisory opinion, as the word 'consult' indicates the opinion is merely advisory.
Binding on lower courts? Contradictory precedents: The Supreme Court has not authoritatively resolved this contradiction. In practice, lower courts generally follow advisory opinions due to their high persuasive authority, treating them as quasi-binding precedent, even though the theoretical question remains open. Refer to the cases discussed under Article 143.
Q) Why is the Supreme Court called the guardian of the Constitution?
A) Because it ensures that laws and executive actions comply with the Constitution, safeguards fundamental rights, and acts as the final interpreter of constitutional provisions.
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