Vol. 9 Art. 124-213 PDF

User Name: Dinesh Mishra
Date and Time: 24 April 2020 11:09:00 IST

Job Number: 115336821
Documents (97)
1. [Art 124] Establishment and Constitution of Supreme Court -

Client/Matter: -None-
2. [Art 124-A] National Judicial Appointment Commission-
3. *[Art 124-B] *Function of the Commission-
4. *[Art 124-C] Power of Parliament to make laws-
5. *[Art 125] Salaries, etc. of Judge -
6. [Art 126] Appointment of acting Chief Justice-
7. [Art 127] Appointment of ad hoc Judges-
8. [Art 128] Attendance of retired Judges at sittings of the Supreme Court-
9. [Art 129] Supreme Court to be a Court of record-
10. [Art 130] Seat of Supreme Court-
11. [Art 131] Original Jurisdiction of the Supreme Court.
12. [Art 131A Exclusive jurisdiction of the Supreme Court in regard to questions as to validity of Central laws.
[Inserted by the Constitution (42nd Amendment) Act, 1976 and omitted by the 43rd Amendment Act, 1977.]
[Repealed]
13. [Art 132] Appellate Jurisdiction of Supreme Court in appeals from High Courts in certain cases-
14. [Art 133] Appellate Jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters.—
15. [Art 134] Appellate jurisdiction of Supreme Court in regard to criminal matters -
16. [Art 134A] Certificate of appeal to the Supreme Court –
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17. [Art 135] Jurisdiction and powers of the Federal Court under existing law to be exercisable by the Supreme
Court -
18. [Art 136] Special leave to appeal by the Supreme Court
19. [Art 137] Review of judgments or orders by the Supreme Court -
20. [Art 138] Enlargement of the jurisdiction of the Supreme Court -
21. [Art 139 Conferment on the Supreme Court of powers to issue certain writs -
22. [Art 139A] Transfer of certain cases -
23. [Art 140] Ancillary powers of Supreme court -
24. [Art 141] Law declared by Supreme Court to be binding on all courts -
25. [Art 142] Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc. -
26. [Art 143] Power of President to Consult Supreme Court -
27. [Art 144] Civil and judicial authorities to act in aid of the Supreme Court -
28. [ Art 144A Special provisions as to disposal of questions relating to constitutional validity of laws.[Inserted by
the Constitution (42nd Amendment) Act, 1976, and omitted by the 43rd Amendment Act, 1977]].
29. [Art 145] Rules of Court etc. -
30. [Art 146] Officers and servants and the expenses of the Supreme Court -
31. [Art 147] Interpretation -
32. [Art 148] Comptroller and Auditor-General of India -
33. [Art 149] Duties and powers of the Comptroller and Auditor-General -
34. [Art 150] Power of Comptroller Auditor General to give directions as to accounts;
35. [Art 151] Audit reports -
36. [Art 152] Definition -
37. [Art 153] Governors of States -
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38. [Art 154] Executive power of State
39. [Art 155] Appointment of Governor
40. [Art 156] Term of office of Governor
41. [Art 157] Qualification for appointment as Governor
42. [Art 158] Conditions of Governor’s office
43. [Art 159] Oath or affirmation by the Governor
44. [Art 160] Discharge of the functions of the Governor in certain contingencies
45. [Art 161] Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain
cases
46. [Art 162] Extent of executive power of State
47. [Art 163] Council of Ministers to aid and advise Governor
48. [Art 164] Other provisions as to ministers
49. [Art 165] Advocate-General for the state -
50. [Art 166] Conduct of business of the Government of a State
51. [Art 167] Duties of Chief Minister as respects the furnishing of information to Governor, etc.
52. [Art 168] Constitution of Legislatures in States
53. [Art 169] Abolition or creation of Legislative Councils in States -
54. [Art 170] Composition of the Legislative Assemblies.—
55. [Art 171] Composition of the Legislative Councils
56. [Art 172] Duration of State Legislatures -
57. [Art 173] Qualification for membership of the state Legislature -
58. Art 174] Sessions of the State Legislature, prorogation and dissolution.—
59. [Art 175] Right of Governor to address and send messages to the House or Houses
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60. [Art 176] Social address by the Governor at the commencement of every session
61. [Art 177] Rights of Ministers and Advocate-General as respects the Houses
62. [Art 178] The Speaker and Deputy Speaker of the Legislative Assembly
63. [Art 179] Vacation and resignation of, and removal from, the offices of Speaker and Deputy Speaker -
64. [Art 180] Power of the Deputy Speaker or other person to perform the duties of the office of, or to act as
Speaker
65. [Art 181] The Speaker or the Deputy speaker not to preside while a resolution for his removal from office is
under consideration -
66. [Art 182] The Chairman and Deputy Chairman of the Legislative Council -
67. [Art 183] Vacation and resignation of, and removal from, the offices of Chairman and Deputy Chairman -
68. [Art 184] Power of the Deputy Chairman or other person to perform the duties of the office of, or to act as,
Chairman -
69. [Art 185] The Chairman or the Deputy Chairman not to preside while a resolution for his removal from his
office is under consideration -
70. [Art 186] Salaries and allowances of the Speaker and Deputy Speaker and the Chairman and Deputy
Chairman -
71. [Art 187] Secretariat of State Legislature -
72. [Art 188] Oath or affirmation by members -
73. [Art 189] Voting in House, power of Houses to act notwithstanding vacancies and quorum -
74. [Art 190] Vacation of seats -
75. [Art 191] Disqualifications for Membership -
76. [Art 192] Decision on questions as to disqualifications of members -
77. [Art 193] Penalty for sitting and voting before making oath or affirmation under Article 188 or when not
qualified or when disqualified -
78. [Art 194] Powers, privileges, etc., of the House of Legislatures and of the members and committees thereof -
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79. [Art 195] Salaries and allowances of members -
80. [Art 196] Provisions as to introduction and passing of Bills -
81. [Art 197] Restriction on powers of Legislative Council as to Bills other than Money Bills -
82. [Art 198] Special procedure in respect of Money Bills -
83. [Art 199] Definition of “Money Bills” -
84. [Art 200] Assent to Bills -
85. [Art 201] Bills reserved for consideration -
86. [Art 202] Annual financial statement -
87. [Art 203] Procedure in Legislature with respect to estimates -
88. [Art 204] Appropriation Bills -
89. [Art 205] Supplementary, additional or excess grants -
90. [Art 206] Votes on account, votes of credit and exceptional grants -
91. [Art 207] Special provisions as to financial Bills -
92. [Art 208] Rules of Procedure -
93. [Art 209] Regulation by law of procedure in the Legislature of the State in relation to financial business -
94. [Art 210] Language to be used in the Legislature -
95. [Art 211] Restriction on discussion in the Legislature -
96. [Art 212] Courts not to inquire into proceedings of the Legislature -
97. [Art 213] Power of Governor to promulgate Ordinances during of Legislature –
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[Art 124] Establishment and Constitution of Supreme Court -
DD Basu: Commentary on the Constitution of India, 9th ed, Vol 9, Articles 124 - 214
D D BasuJustice S S Subramani
DD Basu: Commentary on the Constitution of India, 9th ed, Vol 9, Articles 124 - 213 > DD Basu:
Commentary on the Constitution of India, 9th ed, Vol 9, Articles 124 - 213 > Commentary on the
Constitution of India > PART V THE UNION (Contd.) > CHAPTER IV THE UNION JUDICIARY
Commentary on the Constitution of India
PART V THE UNION (Contd.)
CHAPTER IV THE UNION JUDICIARY

GENERAL1 Nature of the judicial function
Before taking up a study of the organisation and powers of the Judiciary in India, it would be useful to
notice the essential features of the judicial function itself.
A scientific definition cannot be expected. The term “judicial power” is not capable of a precise definition
applicable to all cases and all circumstances.1 It is not self-defining and has no fixed meaning. It “sums up
the whole history of administration of justice in English and American courts through centuries.
Therefore, we are applying a static conception, but are dealing with a process, the activities of which must
be left unhampered by particularization, in order to enable to accommodate themselves to the changing
demand of administration of justice”.2 In Huddart, Parker & Co v Moorehead,3 GRIFFITHS CJ observed:
“I am of opinion that the word “judicial power as used in section 71 of the Constitution means the power
which every sovereign authority must of necessity have to decide controversies between its subjects or
between itself and its subjects, whether the right relates to life, liberty or property. The exercise of this
power does not begin until some tribunal which has power to give a binding and authoritative decision
(whether subject to appeal or not) is called upon to take action.”4 One of the characteristics of judicial
power is “it is concerned with the past and present and not with the future”.5 It is a power to examine
questions submitted for determination with a view to the pronouncement of an authoritative decision as to
rights and liabilities of one or more of the parties.6
The primary characteristic of the judicial function is the decision of a dispute actually arising between two
parties and brought before the court, which decision must be binding upon the parties and enforceable
according to the decision. From this standpoint, the American Supreme Court7 observed:
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Judicial power is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who
bring a case before it for decision.7
A lawmaker issues general rules, the executive implements the law and makes Government policy, and a
judge acts as an independent referee by applying the rules to the dispute. The judicial function is
associated with the courts. There is, however, no clear definition of a court other than the circular one of a
body exercising judicial function whatever be its name.8 For example, the Parole Board is a court.9
The executive function is particularly difficult to define, a matter which raises problems in relation to
accountability. It comprises anything that is neither judicial nor legislative. Moreover, its functions
overlap with the judicial, since it resolves disputes and makes copious rules both formally under the
powers delegated by Parliament and informally in order to implement its general powers. Whether a
matter is executive may depend not on any natural quality it has, but on the mechanism chosen to deal
with it. For example, imposing a penalty in connection with a court ruling is part of the judicial function,10
but arguably an administrative penalty imposed mechanically such as parking ticket is not. Nor arguably
is a decision based on Government policy such as refusing planning permission for a new building. A
grant of planning permission creates a new right, but a judicial function, strictly speaking, is meant only to
determine the existing right under the law. However, if the same decision was made by applying a rule,
for example, a right of planning permission for any house within a defined zone, it could be regarded as
judicial function. Moreover, unlike a Minister or a traffic warden, a court exercising judicial functions
cannot initiate action, but must respond to the dispute which others bring before it. Thus, the judiciary is
often claimed to be the “least dangerous branch” having no weapon at its disposal and having no
particular axe to grind.11 The judicial function entrusted to a judge is inalienable and differs from an
administrative or ministerial function which can be delegated or performance whereof may be secured
through authorisation. The judicial function consists in the interpretation of the law and its application by
rules or discretion to the facts of the particular cases. This involves the ascertaining of facts in dispute
according to the Law of Evidence. The organs which the State sets up to exercise the judicial function are
called Courts of Law or Courts of Justice. Administration consists of the operation, whatever their
intrinsic nature may be which are performed by administration and administrators are all State officials
who are either legislators or judges.12 Judicial function is exercised under legal authority to decide on the
disputes after hearing the parties, may be after making an enquiry and the decision affects the rights and
obligations of the parties. There is a duty to act judicially. The judge may construe the law and apply to a
particular state of facts presented for determination of the controversy. A ministerial act, on the other
hand, may be defined to be one which a person performs on a given state of facts presented to the
determination of the controversy in a prescribed manner, in obedience to the mandate of a legal authority
without regard to or the exercise his own judgment upon the propriety of the act.13 In the same book, the
distinction between “judicial” and “ministerial” act is stated as,
If a judge dealing with a particular matter has to exercise his discretion in arriving at a decision, he is acting judicially, if on the other
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hand he is merely required to do a particular act and is precluded from entering into the merits of the matter, he is said to be acting
ministerially. 14
Judicial power is the power to decide cases and controversies.15 “No particular definition of judicial power
is given in the Constitution (of New Hampshire) and considering the general nature of the instrument,
none was to be expected. Critical statements of the meanings in which all important words were employed
would have swollen into volumes; and when those words possessed a customary signification, a definition
of them would have been useless.” But, “powers judicial, judiciary powers and judicatures” are all phrases
used in the Constitution; and though not particularly defined, are still so used to designate with clearness
that department of government which it was intended should interpret and administer the laws. On general
principle, therefore, those inquiries, deliberations, orders and decrees which are peculiar to such a
department, must in the nature be judicial acts. Nor can they be both judicial and legislative, because a
marked difference exists between the employment of judicial and legislative tribunals. The former decide
the legality of the claims and conduct, and the latter make rules upon which in connection with the
Constitution, those decisions should be founded. It is the province of the judges to determine what is the
law upon existing cases. In fine, the law is “applied” by the one, and “made” by the other. To do the first,
therefore—to compare the claims of parties with the law of the land before established—is in the nature of
judicial act. But, to do the first—to pass new rules for the regulation of new controversies—is in the
nature of legislative act; and if these rules interfere with the past, or the present, and do not look wholly to
the future, they violate the definition of a law as a “rule of civil conduct”, because no rule of conduct can
with consistency operate upon what occurred before the rule itself was promulgated.16
The term “Judicial power” is not capable of a precise definition applicable to all cases and all
circumstances.17 It is not self-defining and has no fixed meaning. It sums up the whole history of the
administration of justice in England and American courts through centuries and, therefore, are not
applying a static conception, but are dealing with a process, the activities of which must be left
unhampered by particularisation, in order to be able to accommodate themselves to the changing demands
of administration of justice.18 For example, the judicial system in Ceylon had been established by the
Charter of Justice 1833 which read:
….. We do hereby direct that the entire administration of justice, civil and criminal therein shall be vested exclusively in the courts
erected and constituted by this Our Charter.
But, as employed to designate one of the three great branches or departments into which the powers of
Government are divided, it had been broadly defined as the power to hear and determine those matters
which affect the life, liberty or property and the judiciary or judicial department of the Government as that
branch thereunder which is intended to interpret and apply the law.19 In the context of American
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Constitution,
Judicial power is the power of the court to decide and pronounce a judgment and carry it into defect between persons and parties who
bring a case before it for decision.
(Justice Miller in his work on the American Constitution – cited by Justice Day in Muskrat v United
States),.20 It is the right to determine actual controversies arising between litigants, duly instituted in
courts of proper jurisdiction. By the express terms of the Constitution, the exercise of judicial power is
limited to “cases and controversies”. Beyond this, it does not extend and unless it is asserted in a case or
controversy within the meaning of the Constitution, the power to exercise it is nowhere conferred.21 As
distinguished from the legislative power, which is to declare what the law should be, judicial power may
be defined as the power to declare what the law is or has been.22 In the words of Lord Devlin in Union v
Devanayagam,23 it is one of the characteristics of judicial power that it is concerned with the past and
present and not with the future. Therefore,
judicial power is one of the sovereign powers of the States which in a system of Government based on separation of powers, vests in the
judiciary; it is a power to decide and that includes the power of declaring what the law is and its construction so far as it is written law.
But authorities, other than a court, may be vested with a power to determine disputes between parties. The
quality that differentiates a judicial decision from a non-judicial determination is, as pointed out by our
Supreme Court, in the Bharat Bank case,24 the mode of approach or the process employed, in arriving at
the decision. This aspect of the judicial function was emphasised by the (English) Committee on
Ministers’ Powers,25 which describe the judicial function, by analysing the judicial procedure. The
analysis of the Committee has obtained judicial recognition.26 According to the Committee:
A true judicial decision presupposes an existing dispute between two or more parties and involves four requisites—(1) the presentation
(not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment
of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the
parties on the evidence; (3) if the dispute between them is question of law, the submission of legal argument by the parties; and (4) a
decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law to the facts so found,
including, where required, a ruling upon any disputed question of law.26
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This definition has the merit of emphasising that the judicial function involves an objective, as
distinguished from a subjective determination, that is, coming to a decision upon a consideration of facts
and circumstances,27 presented by the parties before it, and according to law.
The judicial function is associated with courts. There is, however, no clear definition of a court other than
a circular one of a body exercising judicial function whatever be its name.28 Imposing a penalty in
connection with a court ruling is part of the judicial function.29 A grant of planning permission creates a
new right, but a judicial function, strictly speaking is meant only to determine existing rights under the
law. Unlike a minister or traffic warden, a court exercising judicial function cannot initiate action, but
must respond to disputes which others bring before it. Thus, judiciary is often claimed to be “the least
dangerous brand” having no weapons at its disposal and having no particular axe to grind.30 According to
HOOD PHILLIPS: “judicial function consists in the interpretation of the law and its application by rule or
discretion to the facts of particular cases. This involves ascertainment of facts in dispute according to the
law of evidence. The organs which the state sets up to exercise the judicial function are called courts of
law or courts of justice.”31
Judicial function is exercised under legal authority to decide on the disputes after hearing the parties, may
be after making an enquiry and the decision affects the rights and obligations of the parties. There is a
duty to act judicially. The judge may construe the law and apply it to a particular state of facts presented
for determination of the controversy. The judicial functions are to be discharged essentially by Judges as
per Rules of the Government and cannot be delegated.32
A judicial decision is made according to rules. An administrative decision is taken according to

administrative policy. A judge attempts to find what is the correct solution according to legal rules and
principles. An administration attempts to find what is most expedient and desirable solution in public
interest. The judge’s approach is objective, guided by the idea of rule of law. The administration’s
approach is empirical, guided by expediency. Under this analysis, based on the nature of functions, many
so-called administrative tribunals, such as social security and employment tribunals have judicial rather
than administrative functions, since their sole task is to find facts and apply law objectively.33
The test that may be applied for distinguishing judicial functions from other classes of functions turns
upon whether the performance of the functions terminates in an order that has conclusive effect. The
decisions of courts are binding and conclusive, inasmuch as they have the force of law without the need
for confirmation or adoption by any other authority and cannot be impeached (if the court has acted within
jurisdiction) indirectly in collateral proceedings. This characteristic is generally regarded as the essential
feature of judicial power and a body exercising powers which are merely advisory, deliberative,
investigatory, or conciliatory, character or which do not have legal effect confirmed by another body or
involve only the making of a preliminary decision will not be normally held to be acting in a judicial
capacity……. It must be added that where orders made by an administrative body are given finality by
being exempted from judicial review, those orders do not thereby acquire a judicial quality if no other
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characteristic of judicial power is power. Power to make orders that are binding and conclusive is not,
therefore, a “decisive” factor.
The presence or absence of certain formal procedural attributes is also a test to consider whether the
function is a judicial function or not. The court determines matters in cases initiated by parties, and they
normally sit in public, they are empowered to compel the attendance of witnesses who may be examined
on oath; and they are required to follow the rules of evidence; they are entitled to impose sanctions by
way of imprisonment, fine, damages or mandatory or prohibitory orders and enforce obedience to their
own commands. The presence of such trapping tends to support the conclusion that it is a court, though
the said powers by themselves may not be sufficient to establish “conclusively” that they have been
invested with judicial power.
The most obvious characteristic of ordinary courts is that they determine, on the basis of evidence and
arguments submitted to them, disputes between two or more parties about their respective legal rights and
duties, powers and liabilities, privileges and immunities. “It is a truism that the conception of the judicial
function is inseparably bound up with the idea of a suit between parties, whether between the Crown and
subject or between subject and subject and it is the duty of the court to decide the issue between the
parties. If then, the functions of a statutory body include the determination of issues that closely resemble
“lis inter parties”, it is to be expected that for the most if not all purposes those functions will be classified
as judicial.34
A court is established by a law or under authority of law. It performs judicial function. It administers
justice in accordance with the Constitution and the laws. It decides suits in which the right of property or
the right to an office is contested, disputed or claimed. A dispute between the parties may involve a
question of law or fact or both. The contending parties have an issue between them. There is a “lis”, a real
conflict of interests between them and an adversarial proceeding. The plaintiff files a plaint and
complaints against the defendant who presents a written statement and out of these pleadings, issues are
framed. The parties adduce evidence, give their statements, produce witnesses and examine them, cross-
examine them and finally re-examine them. On points of law, they make arguments. Their counsel may
act for them. The law is stated and rulings are cited. After the arguments are closed, the judge passes an
order and gives a judgment and passes a decree based on it, which can be executed. In the judgment, the
judge gives his findings and reasons for making the decree. He decides the disputes one way or the other
affecting rights of the parties often “in rem”. The judicial function then involves four states, presentation
of the case, production of evidence, legal arguments and a decision on the basis of application of pre-
existing law.35 A contest for the right to property or to an office or a question of redress or punishment for
“wrongs already done or committed” is, therefore, the proper matter for a court of law.36 It is the function
of a court of law to interpret the laws and apply them to the facts of a given case.37
Questions of policy are thus foreign to the judicial function.38 Not only are certain questions kept away
from the courts on the ground that they are “political” or non-justiciable, which means that they are
matters of governmental policy which cannot be determined by the judicial method, but in the
determination of the justiciable questions, too, the courts are to be exclusively guided by what is the law,39
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rather than what it should be.40
Political question doctrine is a doctrine that excuses federal courts from considering matters that, even
though they may constitute a case, and controversy, are not sort of things that are proper for a court to
decide. A political question can perhaps be reduced to three general categories: a clear textual
commitment of the issue to another branch of government; a lack of judicially manageable standard by
which courts could resolve the dispute, or a number of factors that make judicial pronouncements of the
matter politically imprudent.41 Political question is an open sesame expression that can become a
password for granting or preventing admission into forbidden fields.42 It is well settled that question of
political wisdom and executive policy only could not be subjected to judicial review.43 Such decisions
require “balancing exercise which judges by their upbringing and experience are ill-qualified to perform.44
There are no justiciable or manageable standards by which such issues could be resolved. Any attempt to
review these decisions would mean, placing the court in a “judicial, no-man’s land”.45 It is also well
settled that a court cannot enter into “political thicket”.46 But the court will interfere where question of
legal and constitutional issues arise, and the court will decide the same in accordance with law.47 It was
held that constitutional Law cannot be “entirely divorced from consideration of political policies. Merely
because of political complexion, the court cannot fold its hands in despair and declare “judicial hands
off”. So long as a question arises whether an authority under the Constitution has acted within the limits
of its power or exceeded it, it can certainly be decided by the court. Indeed it would be its constitutional
obligation to do so.47 Merely because the decision of court will have “political effect”, court cannot refuse
to adjudicate the rights.48 But it is well settled that a question whether a question is political or not will be
decided by court and not by the executive.49
A purely political question not involving the determination of any legal or constitutional right or
obligation would not be entertained by the court, since the court is concerned only with the adjudication of
legal rights and liabilities. However, in spite of the controversy before the court being of a political
character, if it involves the determination of a constitutional question, the court cannot decline to entertain
it.50 The “Constitutional fiction” of political question should not be permitted to stand in the way of the
court to “deny the nation the guidance on basic democratic reforms”.51 It is the duty of the Supreme Court
to interpret the Constitution. It must perform that duty, regardless of the fact that the answer to the
question would have a political effect.52 In AMERICAN CONSTITUTIONAL LAW BY RALPH A.
ROSSUM AND G. ALAN TARR – Sixth Edn – vol II – “Political question” has been defined as “an issue
that the court believes should be decided by a non-judicial unit of Government”.53 Political question is a
doctrine that excuses federal courts from considering matters that even though they may constitute a case
and controversy are not the sorts of things that are proper for a court to decide.54
It is a judicial principle that a court should refuse to decide on issues involving the exercise of
discretionary power by the executive or legislative branch of Government.55 It is true that if a question
brought before the court is purely a political question not involving the determination of any legal or
constitutional right or objection, the court will not entertain it, since the court is concerned with
adjudication of legal rights and liabilities. But, merely because a question has a political complexion, that
by itself is no ground why the court should shrink from performing its duty under the Constitution, if it
raises an issue of constitutional interpretation.56 In that case, Chief Justice Beg held that the question of
political wisdom or executive policy “only” could not be subjected to judicial control. In that case, the
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court also said that the court cannot go into the question of correctness or adequacy of the facts and
circumstances on which the question of satisfaction of the Central Government. is based where the Central
exercises power under Article 356. That would be a dangerous attempt for the court, both because it is not
a fit instrument for determining a question of this kind (invocation of power under Article 356) and also
because the court would thereby usurp the power of Central Government and in doing so, enter the
“political thicket” which it must avoid if it is to retain its legitimacy with the people. In that case, Justice
Goswami said while stating about change in situation exists or is potentially imminent may be correct or
incorrect, but it is a political issue. The court’s jurisdiction is not political, but entirely judicial. But then
the court also suggested that (even when a subjective satisfaction is declared to be final and conclusive by
the Constitution), the court would have jurisdiction to examine the same if it is made mala fide or is based
on wholly extraneous or irrelevant grounds because in that case there would be no satisfaction of the
President at all. The court also said that there is a difference between “satisfaction” being improper or
unjustified and there being “no satisfaction at all”. The former is not, while the latter is challengeable. In
S.R. Bommai v UOI,57 the court said that the satisfaction of President under Article 356(1) is open to
challenge on the ground of mala fides or being based wholly on extraneous and/or irrelevant grounds. It is
incumbent on each occupant of a very high office to be constantly aware of the power in the high office he
holds that it is meant to be exercised in the public interest and only for the public good and it is not meant
to be used for any personal benefit or merely to elevate the personal status of the current holder of the
office. It was held that mala fides were alleged against the Governor of a State in sending his report as to
the invocation of Article 356 of the Constitution by the President.58 In that case, the court also said that it
will not lightly presume abuse or misuse of power and will make allowance for the fact that the decision-
making authority is the best judge of the situation.
In A.K. Roy v UOI,59 Chief Justice Chandrachud commenting on the ordinancemaking power of the
President under Article 123 doubted whether under the Indian Constitution “the political question
doctrine” could be invoked to deny justiciability to any issue. The learned judge quoted the following
observation of Justice Hegde in Madhav Rao Scindia v UOI,60 (known as Privy Purse case) wherein it was
observed:
There is nothing like a political power under our Constitution in the matter of relationship between executive and citizen. It seems to be
ultimately a matter of judicial judgment and choice whether the court will interfere or not with a decision having political overtones.
The court may refuse to review a matter by calling it a “political matter” In any case, the court will not say whether the decision is right
or wrong, the only ground of interference may be abuse of power.
Of course, in applying the law to the facts of the case, the court has to interpret the law, but once that is
done, according to well-established principles a court has no power to refrain from applying a rule of law
on the ground that it does not, in the court’s opinion, appear to be good law, or conducive to the public
good.61 Nor does the court, in interpreting the law, profess to alter it.62
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‘Law”, in this context, of course, is not confined to statute law, but all rules of conduct which have the
force of law including the Constitution which constitutes the paramount law of the land in countries like
the U.S.A. and India.
Broadly speaking, the judicial function is in the nature of a trust63 and cannot be delegated by the court or
tribunal in which it has been vested by law or the Constitution itself. A party has a right to demand that
the judgment of the court be given in his suit, and he cannot be bound by a delegated exercise of judicial
power whether the delegation be by the courts or by legislative act devolving judicial duties on ministerial
officers. Proceedings in any such case would be void.64
One noteworthy characteristic of judicial function exercised in courts of law is the fact that the work of
the Judge is essentially “personal to himself”. The great majority of public officials may, and often indeed
must, delegate atleast part of their work to others, even though the responsibility for it cannot be shifted;
but one of the conditions which attaches to formal judicial proceedings is the rule that the judge shall
himself personally hear and determine the matter to be decided.65
The judicial function properly belongs only to the “courts”; if it is vested in any administrative or other
authority, the function is called “quasi-judicial”. A quasi-judicial function is an administrative function
which the law requires to be exercised in some respects as if it were judicial,66 since the power has to be
exercised in accordance with the principles of natural justice.67 A quasi-judicial function means a function
that is partly judicial and partly administrative. It may alternatively describe the “judicial” element in a
composite function or it may describe the nature of a discretionary act itself where the actor’s discretion is
not unfettered.68 The expression “quasi-judicial” has been termed to be one which stands midway a
judicial and administrative function. If the authority has any express statutory duty to act judicially in
arriving at the decision in question, it would be deemed to be a quasi-judicial order.69 Election
Commission while exercising power to register a political party under section 29-A of Representation of
Peoples Act, act quasi-judicially and the decision rendered by him is a “quasi-judicial order”.70 In order to
understand the judicial function it is, therefore, essential also to know what is a “court”. It is common for
written Constitution to provide that only “courts” established under the Constitution or by a special
legislative procedure can exercise judicial power.71
The “judicial functions” are those which are to be discharged by the judge as per rules of the court and
cannot be delegated.72
The least that is required of a “court” is the capacity to deliver a “definitive judgment” and the mere fact
that the procedure adopted by it is of legal character and it has power to administer oath will not impart to
it the status of a court. A fact finding body is not required to adjudicate upon right of parties and has no
adjudicatory function. The government is not bound to accept its recommendation or act upon its findings.
It is a familiar feature of modern legislature to set up bodies and tribunals and entrust them the work of a
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judicial, quasi-judicial or administrative character, but they are not courts in the accepted sense of the
term, though they may possess some of the trappings of a court.73 The fact that a body is exercising a
judicial function and does so in public interest does not mean that it is part of the judicial system of the
State.74
It was held in Attorney-General v BBC,75 and General Medical Council v BBC,76 that there is no
conceptual distinction between a tribunal and a proper court. The constitutionally important distinction is
whether the body in question exercises “judicial function” in the sense of the independent resolution of a
dispute. However, it might also be important to decide whether a body is a court for the purpose of law of
contempt of court which affects freedom of speech. A tribunal is not necessarily a court in the strict sense
of exercising judicial power merely because – (1) it gives a final decision; (2) it hears witnesses on oath;
(3) two or more contending parties appear before it between whom it has to be decided; (4) it gives
decision which affects the rights of subjects; (5) there is an appeal to a court; and (6) it is the body to
which a matter is referred by another body.77 In a parliamentary system of Government, separation of
powers is in fact separation of the judiciary from the executive and legislative. DENNING in his book
“FAMILY STORY” said:
The keynote of the rule of law in England has been the independence of judges. It is the only respect in which we make any separation
of powers. There is here no rigid separation of powers between the legislative and executive powers, because the ministers, who
exercise executive power, also direct a great deal of legislative power of Parliament. But the judicial power is truly separate.
How jealously the courts in England now regard the judicial power and independence of judiciary can be
judged from the case of “X” Ltd v Morgan-Grapian (Publishers) Ltd,.78 where the Court of Appeal, Lord
Donaldson MR said:
Any widespread refusal to obey the orders of court is a threat to the authority of the court which is not any the less such a threat because
it is coupled with an acceptance that there will be a penalty to be paid. This is important in terms of public interest, but what is more
important is that it is a threat to the authority of Parliament whose servants are the courts.
But, when the case reached the House of Lords, Lord Bridge thought it necessary to dispel the impression
that the words “whose servants are the courts” were likely to create, by observing,
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The maintenance of rule of law is in every way as important in a free society as the democratic franchise. In our society, the rule of law
rests upon twin foundations: the Sovereign and the Queen in Parliament in making the law and the Sovereignty of the Queen’s Court in
interpreting and applying the law.
Thus the courts in the UK have a long way from Bacon’s warning to the judges to:
“remember that Solomon’s throne was supported by lions on both sides. Let there be lions, yet lions under the throne being circumspect
that they do not check or oppose any point of sovereignty” to “the sovereignty of the Queen’s court in interpreting and applying the
law”.
However that may be, our interest here is in the separation of the judicial power from the executive and
legislative powers. “In that contrast,” says Lord Steyn:
the doctrine plays in our constitutional practice and in institutional arrangement which separate executive and judicial functions. And it
is right that it should be so because the principle of separations of powers is an essential constitutional safeguard of judicial
independence and the integrity of the administration of justice.
In the words of Lord Scarman:
The Constitution’s separation of powers or more accurately functions must be observed if judicial independence is not to be put at risk.
In a Federal State, independence of the judiciary as an institution stems from the logic of federalism.79
Then from the beginning of the legal history, the courts have, in the exercise of judicial power, acted as
the interpreters of the law and as the arbiters not only between citizen and citizen, but as between State
and citizen. One of their principal functions is to adjudicate upon the legality of the exercise of powers by
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other functionaries of the State. And most importantly, all the rights guaranteed by the written
Constitution are rights against the State. The judiciary has thus been assigned by the Constitution very
important and delicate role to play, namely, to ensure that none of the organs of the State or the
Government functionaries acts in violation of any of the provisions of the Constitution or of any other law
and because of the above nature of work entrusted to the judiciary, it was envisaged in the Constitution
that the judiciary shall be independent. Judicial independence is, therefore, absolutely necessary to give
the citizen a fighting change in his forensics contest with that great leviathan, the State. John Marshall,
whose rich experience as lawyer, legislator and Chief Justice enabled him to speak as no one could,
tersely said (edited by Justice Van Dexanter in Evans v Gore,):80
Advert, Sir, to the duties of a judge. He has to pass between the Government and the man whom that Government is prosecuting
between the most powerful individual in the community and the poorest and most unpopular. It is of the last importance that in exercise
of those duties, he should observe the utmost fairness. Need I press the necessity of this? Does not everyman feel that his own personal
security and the security of his property on that fairness? The Judicial Department comes home in its effect to everyman’s fair side: it
passes on his property his reputation, his life, his all. Is it not to the last degree important that he should be rendered perfectly and
completely independent, with nothing to influence or control him but God and his conscience. I have always thought from my earliest
youth till now that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people was an ignorant, a
corrupt or a dependent judiciary.
And Woodrow Wilson, later President of USA said:
….So far as the individual is concerned, a constitutional Government is as good as its courts. He said also that “our judiciary is the
balance wheel of our entire system; it is meant to maintain that nice adjustment between individual rights and Governmental powers
which constitutes political liberty”.
(Cited by Justice Van Dexanter in Evans v Gore,).81 It is plain, therefore, that the purpose of these constitutional provisions is to “invest
the judges with independence in keeping with the delicacy and importance of their task and with the imperative need for its impartial
and fearless performance”.
(See Evans v Grove (supra),).
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According to HALSBURY,82 the following characteristic distinguish a “court” from analogous bodies:
(i) The first characteristic of a court is that the State’s inherent power of adjudication is vested in it.
This power of adjudication or administration of justice is the power of every State to maintain and uphold
rights and to punish wrongs.
........... every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects,
whether the rights relate to life, liberty or property.83
In this respect, a court is on the same footing with a quasi-judicial “tribunal’84 but the latter term is of a
wider connotation inasmuch as a tribunal has some but need not have all the trappings of a court. Further,
while a court is the ordinary judicial forum to try causes under the general law, a tribunal is usually
created to try some special matters or disputes arising under some85 special law. All courts are thus
tribunals but all tribunals are not courts.85
(ii) A court must exercise jurisdiction over persons by reason of the sanction of law, and not merely by the
voluntary submission to its jurisdiction, e.g., arbitrators.
This characteristic is also possessed by statutory tribunals,86 as distinguished from domestic tribunals.
(iii) It must be recognised by the law as a court; mere exercise of functions in a judicial manner is not
enough. Thus, statutory bodies such as the Medical or the Bar Council, exercising quasi-judicial powers
are not courts.
(iv) A court must be open to the public, and the publicity of judicial proceeding is regarded as a guarantee
of public security that justice will be properly administered,87 and free from bias or prejudice.
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Judicial independence is status oriented; it focuses on the status of the court or tribunal and is defined in
terms of the relationship of the court or the tribunal to others, particularly the executive branch of
Government. The three core characteristics of judicial independence are security of tenure, financial
security and administrative security. This was embodied in the American Declaration of Independence
which attacked the British King for making Colonial judges “dependent on his will alone, for the tenure of
their office and the amount and payment of their salaries”. And one of the founding fathers of the United
States of America, Alexander Hamilton can contribute more to the independence of the judges than a
fixed provision for their support. In the general course of human nature, “a power over a man’s
subsistence amounts to a power over his will”.
Financial security has both an individual and an institutional or collective dimension. Individual financial
security may be defined to mean that these rights to the salary of a judge is established by the Constitution
or by law and there is no way in which the other two branches of Government, particularly the Executive
could interfere with that right in a manner to affect the independence of the individual judge.
Independence of Judiciary implies not only that a judge should be free from the Executive or Legislative
encroachment and from political pressures and entanglement, but also that he should be removed from
financial or business entanglement likely to affect or rather seem to affect him in the exercise of his
judicial function.
A court is established by law or under the authority of law. It performs judicial functions. It administers
to an office is contested, disputed or claimed. The dispute between the parties may involve a question of
law or fact or both. The contending parties have an issue between them. There is a “lis” a real conflict of
interest between them and an adversarial proceeding. The plaintiff files a plaint and complaints against the
defendant who presents a written statement and out of these pleadings, issues are framed. The parties
adduce evidence, give their statements, produce witnesses, examine them, cross-examine them and finally
re-examine them. On points of law, they make arguments. Their counsels may act for them. The law is
stated and rulings are cited. After the argument is closed, the judge passes an order and gives a judgment
and passes a decree based on it, which can be executed. In the judgment, the judge gives his findings and
reasons for making the decree. He decides the disputes one way or the other affecting the rights of parties
often “in rem”. The judicial function thus involves four stages, presentation of the case, production of
evidence, legal arguments and a decision on the basis of application of pre-existing law.88 A contest for
the right to property or to an office or a question of redress or punishment for “wrong already done or
committed” is, therefore, a proper matter for a court of law.89 It is the function of the court to interpret the
laws and apply them to the facts of a given case.90
Even the unintentional exclusion of the public from the hearing may make the decree void, except in the
following cases, where a court has the power to sit in camera or to exclude the public from a hearing,
because the ends of justice would otherwise be defeated :91
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(a) Under statutory provisions: Thus, in England, the Matrimonial Causes Act, 1950, authorises the
court to exclude the public from the hearing in nullity suits, where evidence of sexual capacity is
given.92 In such cases, the newspapers are allowed to report the judgment but not the evidence.
The Magistrates’ Courts Act, 1980, provides for the exclusion of the general public from divorce
proceedings in a Magistrate’s court and the Press, though present are allowed to publish only the
substance of the dispute and the decision. The Children and Young Persons Act, 1933, similarly
provides for the exclusion of the general public from proceedings in the Juvenile Courts and
prohibits the Press from publishing the name of any person under 17 or reveal his identity except
where expressly ordered by the court.93
(b) Where details of a secret process are in question and publicity of the proceedings would
undermine the efficacy of the process,94 e.g., the process of a manufacture, discovery or
invention.95
(c) In any other case, where the presence of the public would make the administration of justice
impracticable, e.g., where a child or young person is testifying as to indecent offences.95
(d) In suits relating to wards and lunacy proceedings, where the Judges are supposed to act not as
courts but as representing the sovereign as parens patriae.95
(v) A court must be impartial. The impartiality of the judiciary is recognized as an important, if not the
most important element, in the administration of justice. It is recognised in British Law and by Article
6(1) of ECHR which establishes a right to a fair and public hearing by an independent and impartial
tribunal established by law. The ECHR has held that impartiality requires a judge not only to be impartial
but also to appear as impartial.1 The function of the judiciary is distinctly different from other organs of
the State—in the sense its function is divine. The judiciary is the repository of public faith and is the
trustee of the people.2
In that case, the allotment of a plot of land to a High Court judge by the State Government, while the
judge was hearing a challenge to the allotment process, was set aside by the Supreme Court and the plot
was directed to be vested in the State Government and sold “to instill public confidence in the judiciary”.3
To ensure that the highest standards of conduct are maintained, the Code of Conduct was framed at the
Chief Justices Conference. An in-house procedure was evolved to deal with complaints against any sitting
judge which envisaged the taking of administrative steps, for example, not posting cases for disposal
before the judge concerned, after an enquiry by the Committee of Judges constituted for the purpose.
However, in the absence of any legislative sanction to the Code of Conduct, it is not enforceable nor can
the proceeding of the Committee be made public.4
Society is entitled to expect that a judge must be a man of high integrity, honesty and required to have
moral vigour, ethical fairness and impervious to corrupt or venial influences. Any conduct which tends to
undermine public confidence in the integrity and impartiality of the court would be deleterious to the
efficacy of judicial process. It is, therefore, a basic requirement that a judge’s official and personal
conduct be free from impropriety; the same must be in tune with highest standards of propriety and
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probity. The standard of conduct is higher than that expected of a layman and also higher than expected of
an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher
than those deemed acceptable for others.5
The attack on a judge is wrong done to the public and it tends to create an apprehension in the minds of
the people regarding the integrity, ability and fairness of the judge and to deter actual and prospective
litigants from placing complete reliance upon the court’s administration of justice, or if it is likely to cause
embarrassment in the mind of the judge himself in the discharge of his judicial duties, it would amount to
scandalising the court and be dealt with accordingly.6
There are administrative tribunals where the tribunal itself is a party to the dispute to be decided or is
identified with the Government which is a party and decides the dispute on policy considerations. But a
court is impartial and has no interest in either of the parties, whether it is a private party or the
Government, and it decides the cause objectively on its merits irrespective of any administrative
considerations. A court has to act upon the evidence and other materials on the record and not upon any
extraneous materials.
In other words, a court must be free from “bias” in favour of either party to the cause. The rule is
stringently observed according to the dictum enunciated by LORD HEWART: “Justice must not only be
done but must manifestly seen to be done.”
Credibility in the functioning of justice delivery system and the reasonable perception of the affected
parties are relevant considerations to ensure the continuance of public confidence in the credibility and
impartiality of the judiciary. A basic postulate of rule of law is that “justice should not only be done, but it
must also seem to be done”.7
All judicial functionaries have necessarily to have an unflinching character to decide a case with an
unbiased mind. Judicial proceedings are held in open court to ensure transparency. An essential
requirement of judicial adjudication is that the judge is impartial and neutral and is in a position to apply
his mind objectively to the facts of the case put before him. If he is predisposed or suffers from prejudices
or has biased mind, he disqualifies himself from acting as a judge.8 Article 6 of ECHR, the right to a fair
trial—is concerned with judicial independence and separation of powers. Courts of a “classic kind” must
usually sit in public, must be fully independent and impartial and there must be full opportunity to give
evidence and challenge witnesses.9
What does “impartiality” mean? One meaning of “impartiality” in the judicial context and of course its
root meaning is lack of bias for or against either party to the proceedings. Impartiality—in this sense—
guarantees a party that the judge who hears his case will apply the law to him in the same way he applies
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it to any other party. It also means lack of preconception in favour of or against a particular legal view.
According to the definition of our standard lexicographers, a man who is impartial is one who is not
biased in favour of one party more than another; who is indifferent, unprejudiced, disinterested, as an
impartial judge or arbitrator. The primary idea contained in this definition is freedom from personal bias,
indifference between the parties as persons, nor prejudiced against or the other disinterested as between
them. The word “impartiality” is included in the term “faithfully”.
This sort of impartiality would be concerned, not with guaranteeing litigants equal application of law, but
rather with guaranteeing them an equal chance to persuade the court on the legal points in their case. A
third possible meaning of “impartiality” might be described as open mindedness. This quality in a judge
demands, not that he has no preconceptions on legal issues, but that he is willing to consider views that
oppose his preconception, and remain open to persuasion, when an issue arises in a pending case. This
sort of impartiality seeks to guarantee each litigant, not an “equal” chance to win the legal points in the
case but “atleast” some chance of doing so. It may well be that impartiality in this sense, and appearance
of it, are desirable in the judiciary.10 Impartiality implies that the tribunal should be free from bias against
the suitor. The requirement of impartiality is to be examined according to two tests—(1) subjective; and
(2) objective. The subjective test refers to personal bias, that is, where the judge has any personal interest
in the case, or because of his personal convictions he is biased against the accused. The objective test
requires that the judge must not be placed as to exclude any legitimate doubt as to his impartiality. “What
is at stake is the “confidence” which the courts in a democratic society must inspire in the public and
above all, as far criminal proceedings are concerned, in the accused.11 Where impartiality is guaranteed by
the Constitution, the plea of “bias” cannot be “waived”.12
The High Court judges are the repository of the confidence of the people and the protectors of their rights
and liberties. Therefore, having regard to the onerous duties and sacrosanct function which a judge has to
discharge, he has to act and conduct himself in a manner which enhances the confidence of the people in
the judiciary. Having regard to these circumstances, therefore, once a judge decides to accept the post of a
High Court judge, he has to abide by certain fixed principles and norms and also some sort of self-
imposed restrictions in order to maintain the dignity of the high office he holds so as to enhance the image
of the court of which he is a member and to see that the great confidence which the people have in the
court is not lost.13 A judge shall not allow his judicial position to be compromised at any cost. This is
essential for maintaining the integrity of the judiciary and public confidence in it. A judge is expected to
act as an impartial referee and decide the case before him objectively, uninfluenced by any personal bias
or prejudice. The credibility of the judiciary as an institution rests on the fairness and impartiality of
judges. Public confidence in the judiciary rests on the legitimacy of the judicial process. Sources of
legitimacy are in the impersonal application by the judge of recognised objective principles which owe
their existence to a system as distinguished from subjective moods, predilection, emotion and prejudices.
Judges must always ensure that they do not allow the credibility of the Constitution to be eroded. Justice
must not only be done but it must also be seen to be done.14 Faith in the judiciary is of prime importance.
Ours is a free nation. Among such people, respect for law and belief in its constitutional interpretation by
the courts requires an extraordinary degree of tolerance and co-operation for the value of democracy and
the survival of constitutionalism.15
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Judicial impartiality is a quality of mind which depends on more subtle considerations than the
application, however strict, of the principle that a man may not be a judge in his own cause. Judicial
fairness involves psychological elements far beyond the reach of rules which touch more externalities, and
is not secured by prohibitions which only prevent a man from having financial or an emotional interest
arising from kinship in the case he is trying. Integrity of mind is expected from all who perform judicial
function.
What is meant by impartiality of judges, so far as social matters are concerned, is that they shall not
permit their opinion on certain controversial subjects of the day to influence their judgment. The judicial
mind is not to be deflected by the passions of the moment on social, economic, political or religious
question. Nor is it enough for the judge merely to endeavour to discover and follow the deeper and more
permanent loyalties of the community. He must also seek to promote the progressive evolution of
society... The “good decision” is not the one which necessarily satisfies public opinion today, but that
which will also be felt to be right five or fifteen years hence. Just as the good judge of art or literature is
the man who can discuss those qualities in a picture or a book which will stand the test of time, so the
good judge in a court of law or other tribunal is the one who can use his discretion in a way which will
assist the evolving tendencies of the community. Stress is always laid on the duty of a judge to be a trustee
of the post; but in reality, it is far more important that he should be a prophet of the future, in so far as that
is compatible with faithful administration of the existing body of law.16
essential for maintaining the integrity of the judiciary and public confidence in it. A Judge is expected to
act as an impartial referee and decide cases objectively, uninfluenced by any personal bias or prejudice.
The credibility of the judiciary as an institution rests on the fairness and impartiality of Judges. Public
confidence in the judiciary rests on the legitimacy of the judicial process. Sources of legitimacy are in the
impersonal application by the judge of recognised objective principles which owe their existence to a
system as distinguished from subjective moods of predilection, emotion and prejudices. Judges must
always ensure that they do not allow the credibility of the institution to be eroded. Justice must not only be
done, but it must also be seen to be done.18 Faith in the judiciary is of prime importance. Ours is a free
nation. Among such people, respect for law and belief in its constitutional interpretation by courts requires
an extraordinary degree of tolerance and co-operation for the value of democracy and survival of
constitutionalism.19
The Hon’ble Supreme Court in the case of State of Rajasthan v Prakash Chand,20 quoted the observation
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made in the decision of A. M. Mathur v Pramod Kumar Gupta,21 which read thus:—
Judicial restraint and discipline are as necessary to the orderly administration as they are to the effectiveness of the army. The duty of
restraint, this humility of function should be constant theme of our judges. The quality in decision-making is as much necessary for
judges to command respect as to protect the independence of judiciary. Respect to those who come before court as well as to other co-
ordinate branches of the State, the executive and the Legislature. There must be mutual respect. When these qualities fail or when the
litigants and public believe that the judge has failed in these qualities, it will be neither good for the judges nor for the judicial process.
The judge’s bench is a seat of power. Not only do judges have the power to make binding decisions. Their
decisions legitimatise the use of power by other officials also. The judges have the absolute and
unchallengeable control of the court domain. But they cannot misuse their authority by intemperate
comments, undignified banter or scathing criticism of counsel, parties or witnesses. We concede that the
court has inherent powers to act freely upon its own conviction on any matter coming before it for
adjudication, but it is a general principle of the highest importance to the proper administration of justice
that derogatory remarks ought not to be made against persons or authorities whose conduct comes into
consideration unless it is absolutely necessary for the decision of the case.22
To put it more broadly, a proper discharge of the judicial function requires not only that it should be
exercised according to the law, and on the facts and circumstances properly brought before the court (as
distinguished from the discretion of the Judge except where the law vests such a discretion in him), but
also that the proceedings should be conducted according to the immutable principles of justice and
fairness which are comprehensively referred to as the rules of “natural justice”.
(vi) A court must be independent of and immune from outside influence.
This principle known as the principle of Independence of the Judiciary, deserves separate treatment,
particularly in view of the fact that it has been asserted as a “basic feature’23 of the Indian Constitution
(see below).
(vii) A court is bound by “precedents”. As BLACKSTONE24 put it, the “scale of justice” must be kept
“even and steady, and not liable to waver with every new judge’s opinion”. “Precedents become important
and counsel are allowed and expected to call the attention of the court to them, not as concluding
controversies, but as guides to the judicial mind. A solemn decision upon a point of law arising in any
given case becomes an authority in a like case, because it is the highest evidence which we can have of
the law applicable to the subject, and the Judges are bound to follow that decision so long as it stands
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unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If
a decision has been made upon solemn argument and mature deliberation, the presumption is in favour of
its correctness, and the community have a right to regard it as a just declaration or exposition of the law
and to regulate their actions and contracts by it. It would, therefore, be extremely inconvenient to the
public, if precedents were not duly regarded and implicitly followed.”25 The learned author (at p 53)
further says that whenever the case is such that judicial decisions which have been made are to be
accepted as law, and followed by courts, in future cases, it is equally to be expected that they will be
followed by other departments of the government also. Indeed, in great majority of cases, the officers of
other departments have no option; for the courts possess the power to enforce their construction of the law
as well as to declare it; and a failure to accept and follow in case would only create necessity for new
litigation with similar result.26 Upon this principle, courts under the Anglo-American system of justice,
abide by the previous decisions of superior courts as well as of its own, subject, of course, to definite rules
(which be explained under Article 141).
A decision, it is trite, should not be read as a statute. A decision is an authority for the questions of law determined by it. Such a
question is determined having regard to the fact situation obtaining therein. While applying the ratio, the court may not pick out a word
or a sentence from the judgment divorced from the context in which the question arose for consideration. A judgment as is well-known,
must be read in its entirety and observations made therein should receive consideration in the light of the question before it.27
In Paisner v Goodrich,28 and referred in ICICI Bank Ltd v Municipal Corp of Greater Bombay,29 it was
held:
When the judges of this court give a decision on the interpretation of an Act of Parliament, the decision itself is binding on them and
their successors.116 But the words which the judges used in giving the decision are not binding. This is often a very fine distinction
which will best be expressed only in words. Nevertheless, it is a real distinction which will best be appreciated by remembering that
when interpreting a statute to a given situation. Once a decision has been reached on that situation, the doctrine of precedent requires us
to apply the statute in the same way in any similar situation, but not in a different situation. Whenever a new situation emerges, not
covered by previous decision, the courts must be governed by the statute and not by the words of judges.
It is trite that any observations made during the course of reasoning in a judgment should not be divorced
from the context in which they were used.30 It is also well-settled that a decision is not an authority for the
proposition which did not fall for consideration.31 In that case, it was also held that it is also a trite law
that a point not raised before a court would not be an authority on the said question.
In Madhav Rao Scindia v UOI,32 and referred in ICICI Bank Ltd v Municipal Corp of Greater Bombay,33
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the Supreme Court said that it was not proper to regard a word, a clause or a sentence occurring in a
judgment of the Supreme Court divorced from its context as containing a full exposition of the law on a
question when the question did not even fall to be answered in that judgment.
In the matter of CIT v Sun Engg. Works Pvt Ltd,34 it was observed that it is neither desirable nor
permissible to pick out a word or a sentence from the judgment of a court divorced from the context of the
question under consideration and treat it to be the “complete law” declared by the Supreme Court. The
judgment must be read as a whole and observations from the judgment have to be considered in the light
of the questions which were before the Supreme Court. While applying the decision to later cases, the
court must carefully try to ascertain the true principle laid down by the decision and not to pick out words
or sentences from the judgment divorced from the context of the question under consideration by the
court.
In the case of Municipal Corp of Greater Bombay v Bharat Petroleum Ltd,35 the Supreme Court observed
that for the case to be a binding precedent, the fundamental requirement would be that the law pronounced
should result from the issues raised before the court between the parties and argued on both sides.
Normally, the ratio of the case shall be deduced from the facts involved in the case and the particular
provision of law which the court has interpreted and the decision shall be read with reference to and in the
context of the particular statutory provision involved in the matter.
(viii) What distinguishes a court from advisory bodies such as a Commission of Inquiry36 or
Commissioner under the Public Servants (Inquiries) Act,37 1850, is the power to pronounce a definitive or
binding judgment.37
(ix) The power to punish for contempt of itself belongs only to a court.37
2 Function of a court in India to ensure social justice
According to GRANVILLE AUSTIN:38 “The members of the Constituent Assembly brought to the
framing of judicial provisions of Constitution an idealism only by that shown towards the Fundamental
Rights. Indeed, the judiciary was seen as extension of the rights, for it was the courts that would give the
rights force. The judiciary was to be an arm of the social revolution, upholding the equality that Indians
had longed for during colonial days, but had not gained—not simply because the regime was colonial, and
per force repressive, but largely because the British feared that social change would endanger their rule.”39
The courts were also idealised because as Guardian of the Constitution, they would be the expression of
the new law created by Indians for Indians. During the British period, despite the presence of Indians in
Government, the Indians had not been responsible for the laws that governed them. Indians had neither
law nor courts of their own, and both the Courts and the law had been designed to meet the needs of
colonial power. Under the Constitution, all this would be changed. The Courts were therefore widely
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considered one of the most tangible evidence of independence. And to the lawyers with which the
Congress – and the Assembly – abounded, the opportunity to draft the judicial system under which they
would function must have seemed the chance to write their own scriptures. Nor must it be forgotten that
the judicial provisions were framed during a period of the most appalling lawlessness that India has ever
seen. The orderly processes of the courts must have seemed doubly a haven in the days when tens of
thousands dying for the rifle, the kirpan and the club.
The subjects that loomed largest in the minds of the Assembly members when framing the judicial
provision were the independence of the courts and two closely related issues, the powers of the Supreme
Court and judicial review. The court went to great length to ensure that the courts would be independent,
devoting more hours of debate in this subject than to almost any other aspect of the provisions. If the
beacon of the judiciary was to remain bright, the court must be above reproach and free from coercion and
from political influence.
Judicial review, assembly members believed, was an essential power of the court of a free India and an
India with a federal constitution. The Assembly’s aim, when framing the judicial provision was to
establish clearly the foundation of the Judiciary’s review power and its duty to uphold the Constitution.
The members’ interest centred quite reasonably on the Supreme Court, for, it would be the final authority
on the interpretation of the Constitution even if the points of Constitutional law were raised – and the
Assembly provided that they might be – in lower courts. Much less attention was paid in the Assembly to
the High Courts and subordinate Judiciary. The Supreme Court also captured the imagination of
Assembly members because of its special responsibility for safeguarding Fundamental Rights. The
question of review was taken upon not only during the drafting of judicial provisions, but as will be
recalled, during the framing of Fundamental Rights as well. In the Judicial provision, the Assembly was
concerned with establishing the basic power of review; in the Rights, members placed certain restrictions
on the court’s review power – principally in cases concerning property and personal liberty. The role of
the court in the conflict between the individual’s rights and society’s needs has been considered.
Review and independence of the judiciary were the main issues that spawned a variety of subsidiary
questions. Should the jurisdiction of the Supreme Court, for example, be confined to “federal issues” as
had been the case of the Government of India Act, 1935? Or should it have original and appellate
jurisdiction in a wide variety of civil and criminal cases? Should India have a dual system of courts, State
and Federal as in the United States? Or should the Constitution retain the unified structure of High Court
surmounted by a Federal Court embodied in the Government of India Act, 1935? And how centralized
should the Judiciary be? Although national unity was constantly a goal, the independence of High Courts
must not be endangered.
To answer these questions, the Assembly did not have to begin afresh. From the British, India has
inherited a well-constructed and smoothly functioning judicial system, many of whose forms and details
could readily be adopted by the members. Yet the drafting of the Judicial provision was not a matter of
copying, for, under the Government of India Act, 1935, the power of courts was limited, on Constitutional
issues strictly so. Assembly members had to ask themselves which of the provisions should be retained,
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and if retained, how they should be modified and how the jurisdiction and powers of the courts should be
widened to meet the needs of an independent State.
The Assembly embodied its decisions on these issues in two sections of the Constitution: the Union
Judiciary i.e., the Supreme Court and the High Court in the States. The Constitution provides that the
justices of both the Supreme Court and the High Courts be appointed by the President, the former in
consultation with Justices of the Supreme Court and of the High Court and the latter in consultation with
the Chief Justice of the Supreme Court, the High Court and Governor of the State. Judges hold office
during good behaviour until the retirement age laid down in the Constitution, but can be removed by
Parliament. The qualification, salaries and certain allowances of the High Court and Supreme Court
judges are laid down in the Constitution.
The Supreme Court has, according to the Constitution, original jurisdiction in all “federal disputes”
between the units and between the units and the Union Government. It has also broad appellate
jurisdiction. Any civil or criminal case may be appealed to it, if an interpretation of the Constitution is
involved and if other qualifications are not, for instance, the High Court certifies that the case is a fit one
for appeal or the Supreme Court grants special leave to appeal. Parliament can extend the court’s
jurisdiction in several directions including to matters enumerated in the Union List. The President may
submit a matter to the Supreme Court for any advisory opinion. Generally speaking, the court may make
its own rules of procedure and appoint its own officers. The administrative expenses of the Supreme Court
including salaries, allowances and pensions are charged to the revenues of the Union Government and not
dependent upon appropriation by Parliament.
The centralisation of Indian Judicial System is made clear not only by single hierarchy of courts – there
are no autonomous State Courts in the American sense – by uniformity of law provided for by the
Legislative Lists, Criminal law, and procedure, laws dealing with marriage and divorce, succession and
the transfer of property (other than agricultural land) contracts, “actionable wrongs”, civil procedure and
many other such categories are on the Concurrent Legislative List and, therefore, subject to the legislation
by either Parliament or State Legislature. Although the “administration of justice” the constitution of
subordinate courts and within limits, the jurisdiction of the High Court is on the State List, the constitution
and organisation of the High Court in addition to the Supreme Court lie within the province of Parliament
– as do the qualification of persons entitled to practice before the High Courts. The extension of the High
Court’s jurisdiction beyond the State in which it has its seat is also a Union subject. In the intricate
process of framing these provisions, it was the Supreme Court that first occupied the Constituent
Assembly attention.40
1. Our Supreme Court41 has emphasised that in view of the objective of social and economic justice in the
Preamble and Pt IV of the Constitution, which are binding on the judiciary, it is the duty of Indian courts
not only to decide justiciable causes between two parties, as in other countries governed by the rule of
law, but also to ensure social and equal justice “between chronic unequals” in a more positive and
meaningful sense; India, therefore, needs a judiciary “which is in tune with the (this) social philosophy of
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the Constitution” (para. 26).42
The philosophy of socio-economic justice should, therefore, be borne in mind—
(a) While appointing judges.43

(b) While interpreting the relevant provisions of the Constitution.43
(c) while appreciating the span of independence of the judiciary which is a “basic feature” of the
Constitution.43
(d) While fixing the strength of the Judges under Article 124(l) or 216 in order that a judge may not
be so overburdened as renders him incapable of dispensing socio-economic justice.43
3 The principle of independence of the judiciary
This principle has been imported into India from England, where it had been asserted by COKE, C.J. in
his struggle against an absolute monarch, and was later confirmed by Parliament by enacting the Act of
Settlement, 1700.
The members of the Constituent Assembly envisaged the judiciary as a bastion of rights and of justice.
The question was how to render the fortress impregnable to sapping by private interests. The assembly
had been careful to keep the judiciary out of politics. How was politics to be kept out of the courts? The
assembly’s answer was to strengthen the walls of the fortress with constitutional provisions. At first
glance, the assembly’s debates on the judicial provision seem to have been disproportionately concerned
with the administrative aspects of the judicial system, with the tenure, salaries, allowances and retirement
age of judges, with the question of law detailed the judicial provisions of the Constitution should be, and
more pertinently with the mechanism for choosing judges. A closer look, however, shows that the
member’s interest in these apparently routine matters—which did at times become tedious— was
prompted by the desire to insulate the courts from attempted coercion by forces within or outside the
government.”44
The judiciary is, in effect, part of the public service of the Crown. But a judge is not “employed” in the
sense that a civil servant is employed. He fills a public office, which is by means the same thing; and part
of his independence consists in the fact that no one can give him orders as to the manner in which he is to
perform his work. Like the more fortunate practitioners in some profession, “he owns no man master”.
The only subordination which he knows in his official capacity is that which he owes to the existing body
of legal doctrine, enunciated by his brethren, past and present, on the bench and the legislative enactments
of the King in Parliament.45
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The learned author further says: “The independence of the judiciary lends prestige to the office of the
Judge and inspires confidence in the general public. It acts as a safeguard not merely against the
manipulation of the law for political purposes at the behest of the government in power, but also against
the corruption of the judicial organs of the State by the bribery and intimidation of powerful outside
interest which threaten the impartial administration of justice from time-to-time.
The psychological fact behind the principle of independence is not the immediate reaction of feeling in a
man whose impulses are obstructed, but the permanent result in his conduct of the obstruction of some
impulses and the encouragement of others. We make a Judge “independent” not in order to spare him
personal humiliation, but in order that certain motives shall not and certain other motives shall direct his
official conduct.
The independence of the Judge is, we may conclude, of essential importance in so far as it enables the
Judge to adopt a particular attitude of mind towards the questions which come before him for decision. He
can, in short, determine the case before him without fear that adverse results or material reward will
accrue to him according to whether the decision does not meet with the approval of other persons.” (at pp
47-48)
The judiciary is not a disembodied abstraction. It is composed of individual men and women who work
primarily on their own. Judicial individualism is perhaps one of the last citadels of jealously preserved
individualism.
An independent judiciary is the sine qua non of a vibrant democratic system. Only an impartial and
independent judiciary can stand as a bulwark for the protection of the rights of the individual and mete out
even handed justice without fear or favour. The Judiciary is the protector of the Constitution and as such,
it may have to strike down executive, administrative and legislative acts of the Centre and the States. For
rule of law to prevail, judicial independence is of prime necessity. Being the highest court in the land, it is
very much necessary that the Supreme Court is allowed to work in an atmosphere of independence of
action and judgment and is insulated from all kinds of pressures, political or otherwise.
The independence of Indian Judiciary is one of the most significant features of the Constitution. Any
policy or decision of the Government which would undermine or destroy the independence of the
judiciary would not only be opposed to public policy but would also impinge upon the basic structure of
the Constitution.46 The members of the Constituent Assembly were very much concerned with the
question of the independence of the judiciary and accordingly made several provisions to ensure this end.
The Supreme Court has itself laid emphasis on the independence of judiciary from time to time. The court
said:
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The Constitutional Scheme aims at securing an independent judiciary which is the bulwark of democracy.47
The concept of separation of powers between the Legislature, the executive and the judiciary and the
independence of the judiciary, a fundamental concept, has now been “elevated” to the level of the basic
structure of the Constitution and are the very heart of Constitutional Scheme.
The court has rendered several decisions with a view to strengthen not only its own independence, but
also that of the entire judicial system including the subordinate judiciary.48 In that case, the court held that
the principle of separation of powers is one of the basic features of the Constitution and that this principle
would get violated only if the essential function of one branch is taken over by another branch leading to
the removal of checks and balances.49 As regards the relationship between Parliament and the judiciary
(Supreme Court), the basic pattern of the court is its composition, powers and jurisdiction, etc. The
Constitution makes detailed provision which cannot be touched by ordinary legislative process. But,
within the constitutional framework, Parliament has some powers vis-à-vis the court. The minimum
number of judges is fixed by the Constitution but Parliament has authority to increase, not to decrease the
number. The Constitution confers a security of tenure on the judges subject to Parliament moving an
address to remove the judge.50 The power thus vested in Parliament cannot be misused owing to several
safeguards, viz., charges of misbehavior and incapacity against the judge concerned have to be enquired
and proved and special majority is required in the two Houses for the motion to be carried out. The
executive plays no role in this procedure.
The salaries of judges are fixed by Parliament by law and it cannot be reduced during the tenure of the
judge. Parliament may prescribe the privileges, allowances, leave and pension of a judge with the
safeguard that these cannot be varied during the course of tenure of a judge to his disadvantage.
As regards the area of the court’s jurisdiction, Parliament may provide that an appeal may lie to the
Supreme Court in civil matters from the judgment, decree or final order of a single judge of the High
Court (Article 133(3)). Parliament may enhance the appellate criminal jurisdiction of the Supreme Court
by enabling it to entertain and hear appeal from any judgment, final order or sentence in a criminal
proceeding in a High Court over and above those cases in which the court can already hear appeals under
Article 134. (Article 134(2)). Parliament can provide that the Supreme Court shall not have jurisdiction
and powers of the Federal Court beyond what it already has under Articles 133 and 134. Parliament can
regulate the Supreme Court’s power to review its own decision and orders. Parliament can confer further
jurisdiction (quantitatively or qualitatively) on the Supreme Court regarding any matter in the Union or
Concurrent List. Parliament can provide that the Supreme Court shall have jurisdiction and powers with
respect to any matter as the Government of India and the Government of a State may by special agreement
seek to confer on it. Parliament can confer on the Supreme Court power to issue directions, orders or writs
for any purpose other than the one mentioned in Article 32. Parliament can confer supplementary power
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on the Supreme Court so as to enable it to exercise its jurisdiction more effectively.
It is clear from this provision that what Parliament can do is to expand the jurisdiction and powers of the
Supreme Court in several respects over and above what the Constitution confers. The effect of all these
provisions, therefore, is that whereas the Constitutional guarantee to the Supreme Court jurisdiction of
various kinds, the matter has not been stereotyped into a rigid pattern for ever but is capable of expansion
in the light of experience and prevailing circumstances.51
JUSTICE DOUGLAS in his dissenting opinion in Stephen S. Chandler v Judicial Council of the Tenth
Circuit of the United States, stated: “No matter how strong an individual judge’s spine, the threat of
punishment—the greatest peril to judicial independence— would project a dark shadow whether cast by
political strangers or by judicial colleagues........ Neither one alone nor any member banded together can
act as censor and place sanction on him. It is vital to reserve the opportunities for judicial individualism.”
He further said: “An independent judiciary is one of the Nation’s outstanding characteristics. Once a
federal judge is confirmed by the Senate and takes his oath, he is independent of every other judge. He
commonly works with other federal judges who are likewise sovereign. But, neither one alone nor any
member banded together can act as a censor and place sanctions on him. Under the Constitution, the only
leverage that can be asserted against him is impeachment, where pursuant to a resolution passed by the
House, he is tried by the Senate, sitting as a Jury. Our tradition even bars political impeachment as
evidenced by highly partisan, but unsuccessful, effort to oust Justice Samuel Chase of this court in
1805”....... There is no power under our Constitution for one group of federal Judges to censor or
discipline any federal judge and no power to declare him inefficient and strip him of his powers to act as a
judge.
It is time that an end to put to these efforts of federal judges to ride herd on the other federal judges. This
is a form of “hazing” having no place under the Constitution. Federal judges are entitled, like other
people, to full freedom of the First Amendment. If they break the law, they can be prosecuted. If they
become corrupt or sit in cases in which they have a personal or family stake, they can be impeached by
the Congress. But I search the Constitution in vain for any power of surveillance which other federal
judges have over those observations. Some of the idiosyncrasies may be displeasing to those who walk in
more measured conservative steps. But those idiosyncrasies can be of no possible constitutional concern
to other federal Judges. It is time we put an end to the monstrous practices that seem about to overtake
us........”
The powers of the court are not the same under all Constitutions. In England, Parliament is supreme and
there is no limitation upon its legislative powers. Therefore, a law duly made by Parliament cannot be
challenged in any court. The English Courts have to interpret and apply the law; they have no authority to
declare such a law illegal or unconstitutional. By the American Constitution, the legislative power of the
Union is vested in the Congress and in a sense the Congress is supreme legislative power. But the written
Constitution of the United States is supreme above all the three limits of Government and, therefore, the
law made by Congress in order to be valid, must be in conformity with the provisions of the Constitution.
If it is not, the Supreme Court will interfere and declare the law to be unconstitutional and void. The
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Supreme Court of United States will intervene and declare that law to be unconstitutional and void. The
Supreme Court of United States assumed the power to declare any law unconstitutional on the ground of
its not being in “due process of law”, an expression to be found in the Fifth Amendment (1791) of the
United States Constitution and the Fourteenth Amendment (1868) which related to States Constitution. It
is thus clear that the Supreme Court established its own supremacy over the executive and the Congress.
In India, the position of the judiciary is somewhere between the courts in England and the United States.
While in the main leaving our Parliament and the State Legislatures supreme in their respective legislative
fields, our Constitution has by some of the Articles put upon the Legislature certain specified limitation.
The point to be noted, however, is that in so far as there is any limitation on the legislative power, the
court must on a complaint being made to it, should scrutinise and ascertain whether such limitation has
been transgressed, and if there has been any transgression, then the court will courageously declare the
law unconstitutional, for, the judges are bound by their oath to uphold the Constitution. But, outside the
limitation imposed on the legislative power, our Parliament and State Legislatures are supreme in their
legislative fields and the court has no authority to question the wisdom or policy of the law duly made by
the appropriate Legislature. Our Constitution, unlike the English Constitution, recognises the court’s
supremacy over the legislative authority, but such supremacy is a very limited one, for, it is confined to
the field where the legislative power is circumscribed by limitation put upon by the Constitution itself.
Within this restricted field, the court may, on a scrutiny of the law made by the Legislature, declare it void
if it is found to have transgressed the constitutional limitation. But, our Constitution, unlike the American
Constitution, does not recognise the absolute supremacy of the court over the legislative authority in all
respects, for, outside the restricted field of constitutional limitation, our Parliament and the State
Legislatures are supreme in their respective legislative fields and in that wider field there is no scope for
the court in India to play the role of the Supreme Court of United States.52
The principle that an Act of the Legislature could be held invalid being in conflict with a law of superior
authority has roots which run far into the past. It is a principle supposed to be essential to all written
Constitutions. A law repugnant to the Constitution is void.
The question whether an Act repugnant to the Constitution can become the law of the land came upon for
decision in Marbury v Madison,53 and Chief Justice Marshall in delivering the opinion of the Supreme
Court made observations which are opposite to our Constitution as well. He said:
“The powers of Legislatures are defined and limited, and those limits may not be mistaken or forgotten, the Constitution is written. To
what purpose are powers limited and to what purpose is that limitation committed to writing, if these limits may at any time be passed
by those intended to be restrained? The distinction between Government with limited and unlimited powers is abolished, if those limits
do not confine to the persons on whom they are imposed and if acts prohibited and acts allowed are of equal obligation. It is a
proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it or that the Legislature may alter
the Constitution by an ordinary Act. Between these alternatives, there is no middle ground. The Constitution is either a superior
paramount law, unchangeable by ordinary means or it is on a level with legislative acts and like other acts, is alterable when the
Legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not
law, if the latter part is true, then the written Constitutions are absurd attempt on the part of the people, to limit a power on its own
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nature illimitable. Certainly all those who have framed the written Constitution contemplate them as forming the fundamental and
paramount law of the nation and consequently the theory of every such Government must be, that an Act of Legislature repugnant to the
Constitution is void. This theory is essentially attached to written Constitution and is consequently to be considered by the Supreme
Court as one of the fundamental principles of our society. It shall not therefore be lost sight of in the further consideration of this
subject. If an Act of Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the court and oblige
them to give it effect? Or, in other words, though it is not law, does it constitute a rule as operative as if it was law? This would be to
overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on it. It is
emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must
of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So, if
a law be in opposition to the Constitution: if both law and the Constitution apply to a particular case, so that the court must either decide
that case conformably to the law disregarding the Constitution or conformably to the Constitution disregarding the law, the court must
determine which of these conflicting rules govern the case. This is of the very essence of judicial duty. If then the courts are to regard
the Constitution and the Constitution is superior to any ordinary Act of the Legislature, the Constitution and not the ordinary Act must
govern the case to which they both apply. Those, then who controvert the principle that the Constitution is to be considered in court as
paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution and see only the law.
This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which according to the
principles and theory of our Government is entirely void, is yet in practice completely obligatory. It would declare that if the Legislature
shall do what is expressly forbidden, such act notwithstanding the express prohibition is in reality effectual. It would be giving to the
Legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is
prescribing limits, and declaring that those limits may be passed at pleasure.” See Madbury v Madison,.54
In India, the need for judicial independence is enhanced by the fact that India has a written Constitution
with a Bill of Rights and Judicial Review and a federal structure as a result of which the Union of India
and the Governments of the States figure as the largest single litigants before the Supreme Court and the
High Courts.55 Appreciating the significance of this change in the constitutional set-up, the makers of our
Constitution provided for greater safeguards to ensure judicial independence than under the Government
of India Act, 1935.56
Some of the Judges of our Supreme Court have gone further to assert that “independence of the judiciary
is a basic structure of the Constitution.”57 It would mean that if the Constitution itself is amended so as to
encroach upon this independence, the Constitution Amendment Act will be adjudged void by the
Judiciary.58
even handed justice without fear or favour. The Judiciary is the protector of the Constitution, and as such,
rule of law to prevail, judicial independence is of prime necessity. Supreme Court being the highest court
in the land, it is very much necessary that the Supreme Court is allowed to work in an atmosphere of
independence of action and judgment and is insulated from all kinds of pressures, political or otherwise.
The independence of the Indian Judiciary is one of the most significant features of the Constitution. Any
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judiciary would not only be opposed to public policy, but would also impinge upon the basic structure of
The members of the Constituent Assembly brought to the framing of the judicial provisions of the
Constitution an idealism equaled only by that shown towards the Fundamental Rights. Indeed, the
Judiciary was seen as an extension of the Rights, for, it was the court that would give the Rights force.
The judiciary was to be an arm of the social revolution upholding the equality that Indians had longed for
during colonial days but had not gained – not simply because the regime was colonial and per force
repressive, but largely because the British had feared that social change would endanger their rule.
The concept of “separation of powers” between the Legislature, the executive and the judiciary and the
independence of judiciary60 which is a basic concept and “independence of judiciary” have now been
“elevated to the level of basic structure of the Constitution and are the very heart of Constitutional
Scheme”.61
The independence of the judiciary from the executive and the legislature as well as independence of each
and every judge within the Judiciary is considered as a necessary condition for a free society and a
Constitutional democracy. It ensures the rule of law and realization of human rights and also the
prosperity and stability of a society. Therefore, the Constitution provides for the independence not only of
the Supreme Court, but also the High Courts and the subordinate courts. Independence of judiciary being
a basic feature of the Constitution, any attempt to curtail it directly or indirectly even by an amendment of
the Constitution would be invalid.62
The right to an independent and impartial tribunal is separately mentioned in the International Covenant
and European Convention and some national Constitution. It has been held to be included in a wider
guarantee of “fair hearing”.63 A person cannot be assured of a fair hearing if: (a) the judge or Tribunal is
removable during the term of his office except for misconduct; (b) the judge can be controlled or
influenced by any authority in the performance of his duties as a judge; (c) even a law which deprives a
court of its judicial discretion or seeks to exercise judicial power would offend “Due Process” or a
constitutional guarantee of separation of powers;64 (d) another requirement is immunity from any legal
liability for acts done within jurisdiction.65 “Independence” thus means “independence from the executive
or the legislature and independence from either party”.66
Judicial independence is an aspect of the rule of law in its own right. It overlaps with but goes beyond the
separation of powers. Separation of powers concerns the independence of the judicial system from other
branches of government. Judicial independence requires the independence of individual judges from any
pressures that threaten not only the actual impartiality, but also the appearance of impartiality. Article 6 of
the European Convention on Human Rights includes both elements by requiring a “fair and public
hearing….... by an independent and impartial tribunal established by law”. In Millar v Dickson,67 the
Privy Council found a violation of Article 6, where the prosecuting authority, the Scottish Lord Advocate,
was also responsible for renewing the appointment of a temporary judge, even though there was no
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complaint about actual impartiality of the judge in question. It was observed: “Central to the rule of law in
a modern democratic society is the principle that judiciary must be and must be seen to be independent of
the executive”.
But what are the limits of judicial independence? During debates in Constituent Assembly, it was stated
by A.K. AYYAR thus: “While there can be no two opinions on the need for the maintenance of judicial
independence, both for the safeguarding of individual liberty and proper working of the Constitution, it is
also necessary to keep in view one important principle. The doctrine of independence is not to be raised to
the level of a dogma so as to enable the judiciary to function as a kind of super legislature or super
executive. The judiciary is there to interpret the Constitution or adjudicate upon the rights between the
parties concerned. As has been pointed out recently in a leading decision of the Supreme Court (of the
United States) the judiciary as much as the Congress and the executive is depending for its proper
functioning upon the co-operation of the other two”.68
4 Relationship between Supreme Court and the High Courts
Under the Constitutional Scheme as framed for the Judiciary, the Supreme Court and the High Courts,
both are Courts of Record. The High Court is not a court “sub-ordinate” to the Supreme Court. In a way
the canvas of judicial powers vesting in the High Court is wider inasmuch as it has jurisdiction to issue all
prerogative writs conferred by Article 226 of the Constitution and “for any other purpose”. while the
original jurisdiction of the Supreme Court to issue prerogative writs remains confined to the enforcement
of fundamental rights and to deal with some other matters such as Presidential election or inter-state
disputes which the Constitution does not envisage being heard and determined by High Courts. The High
Court exercises power of superintendence under Article 227 of the Constitution over all subordinate courts
and tribunals; the Supreme Court has not been conferred with any power of superintendence. If the
Supreme Court and High Courts both were to be thought of as brothers in the administration of justice, the
High Court has larger jurisdiction, but the Supreme Court still remains the elder brother. In a unified
hierarchical judicial system which India has accepted under its Constitution, vertically the Supreme Court
is placed over the High Courts.
The Union Judiciary and State Judiciary are undoubtedly independent of each other except in a few areas
such as the appellate jurisdiction conferred on the Supreme Court in all civil and criminal matters as the
ultimate court of appeal. It is the final interpretation of law. To the extent of the exercise of appellate
jurisdiction, certain Supreme Court exercises a superior jurisdiction and hence a superior court than the
High Court, though both the courts are Courts of Record. Under Article 139-A, the Supreme Court may
transfer any case pending before one High Court to another High Court or may withdraw the case to itself.
Under Article 141, the law declared by the Supreme Court shall be binding on all courts including the
High Courts within the territory of India. Under Article 144, all authorities, civil and judicial, in the
territory of India which include the High Courts as well, shall act in aid of the Supreme Court.69
The Supreme Court has no administrative control over the High Court nor power on the judicial side to
enquire into the misbehaviour of a Chief Justice or a Judge of a High Court. But the Chief Justice of India
being the head of judiciary in India has a big role to play, his opinion having primacy and importance. In
the case of any prosecution under the Prevention of Corruption Act even against a retired Chief Justice of
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a High Court, sanction has to be obtained from the President, who has to act after consultation with the
Chief Justice of India.70 It is the prerogative of the Chief Justices of the High Court to constitute a Bench
of his choice and Supreme Court will not interfere with the prerogative and it is an administrative function
performed by the Chief Justice of the High Court.71
Normally the Supreme Court will not issue any direction to the High Court in regard to judicial
administration. But when the High Court is facing a crisis in judicial administration virtually coming to a
grinding halt, Supreme Court gave direction while emphasizing that it is not having any supervisory
control over the administration of the High Court.72
Hence, it is necessary to examine in detail, the ingredients and limitations of this doctrine as embodied in
the Indian Constitution.
Unlike the US Constitution, the Constitution of India does not expressly vest the judicial power in the
Supreme Court and other courts division of the three main functions of government recognised by the
Constitution. Judicial power in the sense of the judicial power of the State vests in the judiciary.73
It is now well accepted constitutional proposition that even though the Constitution does not provide for a
clear cut separation of powers as is done in US Constitution, the judicial power cannot be passed over to
or shared with the executive and the legislature.74
Due process clause: A law may be declared invalid by the Supreme Court in India, if the Legislature has
no power to enact the law or that the law violates any of the fundamental rights guaranteed in Pt III of the
Constitution or is inconsistent with any constitutional provision, but not on the ground that it is vague. In
Claude C. Connally v General Construction Co,75 it was held by the American Supreme Court of United
States that a
statute which either forbids or requires the doing of an Act in terms so vague that men of common intelligence must necessarily guess at
its meaning and differ as to its application, violates the first essential of due process of law.
But the rule enunciated by the American Court has no application under our constitutional set up. The rule
is regarded as an essential to the “due process clause” in the American Constitution by the fifth and
fourteenth Amendments. The courts in India have no authority to declare a statute invalid on the ground
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that it violates “due process of law”. Under our Constitution, the test of due process of law cannot be
applied to the statute enacted by Parliament or State Legislature. The Supreme Court has definitely ruled
that the doctrine of “due process of law” has no place in our constitutional system.76 In A.K. Gopalan v
State of Madras,77 it was observed:
There is considerable authority for the statement that the courts are not at liberty to declare an act void because in their opinion it is
opposed to spirit supposed to pervade the Constitution, but not expressed in words, it is only in express constitutional provisions
limiting legislative powers and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate
wisdom of the Nation that one can find a safe and solid ground for the authority of Courts of Justice to declare void any legislative
enactment.
In A.S. Krishnan v State of Madras,78 it was held that the due process clause in the American Constitution
did not apply to our Constitution. It was observed:
The law would thus appear to be based on the due process clause and it is extremely doubtful whether it can have application under our
Constitution.
No less curious is the fact when the expression “reasonable restriction” came up before the Supreme Court
for interpretation, it went on applying one facet after another of the doctrine of “due process”, avoiding all
the time any mention of that expression. In some of them, the court has explicitly said that “due process”
has not been adopted in Article 1979 and Jagmohan v State of UP,80 and also that though the test of
“reasonableness” might coincide with that for judging “due process”, it might not be assumed that these
were identical.81 The question which we were discussing, it should be made clear, is not whether each one
of the plethora of American decisions on “due process” can be imported under Article 19(2)(b), but
whether the “concept of due process” has been resorted to by the Supreme Court in interpreting
“reasonableness”. The answer must positively be in the affirmative, if we take the sum total of the
decisions of our Supreme Court on “reasonableness” under Article 19. A fairly comprehensive list of the
corollaries arrived at is to be found in P. Pathumma v State of Kerala,.82 It cannot be overlooked that even
the test of “vagueness” for invalidating a restrictive law as “unreasonable” which has been rejected in
Municipal Committee v State of Punjab83; Jagmohan v State of UP.,84
The very proposition that “reasonableness” includes both “substantive” and “procedural reasonableness” shadows the concept of
substantive and procedural due process. While exclusiveness of restriction violates substantive due process, the denial of opportunity to
be heard violates procedural due process. Both lines of attack have been systematically pursued by our Supreme Court decisions till
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today.
More venturesome has been the importation of the concept of “due process” into Article 21, which has not even the word “reasonable”
in its text. On the other hand, the relationship to this provision, the makers of our Constitution expressly sought to exclude “due
process”.85 It was on this basis that the majority of the Supreme Court in its earliest pronouncement A.K. Gopalan’s case86 flatly denied
the possibility of admitting into Article 21 any ingredients of American “due process” or even of the “reasonableness” concept from
Article 19 of our Constitution itself – to arrive at the proposition that whatever was laid down by the Legislature in a penal law would
satisfy Article 21 and that the court could not intervene even where the procedures laid down are “harsh, unreasonable or archaic or
otiose”.
But the “nucleus” of the thesis that the very word “procedure” in Article 21 means a procedure which is not arbitrary, but gives the
person condemned “the right to be heard” before this condemned – which as Justice Fazal Ali demonstrated was an ingredient of “due
process” – is to be found in the judgment of some of the judges in Gopalan’s case (supra). Most illuminating were the words of Justice
Mahajan who otherwise sided with the majority conclusion, wherein it was said:
Article 21 gives also a further guarantee that in its true concept, there should be some form of proceeding before a person can be
condemned. It negatives the idea of fantastic, arbitrary and oppressive form of proceedings.
In many decisions, this view has prevailed, highlighting the concept of fairness being inherent in Article
21. Before adverting to them, we should point out that – (a) absence of arbitrariness and (b) fairness are
both essentials of the concept of due process as explained in the leading American decision.87 Some
device had been invented if the “due process” concept was to be admitted into prohibited area of Article
21. Thus, the Supreme Court has held in a number of decisions88 following the observation in Maneka
Gandhi v UOI,89 that the very words “procedure” and “established” in Article 21 indicated that the
“procedure” should be fair, just and reasonable and not arbitrary or whimsical. In short, the component of
fairness is implicit in Article 21. If this broad proposition is accepted or acknowledged, there is no need to
appeal to Article 19(1)(d) at all, to strike down a law of criminal procedure which the court thinks is
unfair.
The line of reasoning to appeal to “fairness” even where no principle of natural justice has been violated
has been followed in numerous cases till today.90 The conspicuous amongst these is the reference on the
Special Courts Bill,91 where the court castigated some provisions of Special Courts Bill as originally
drafted on the ground that they were lacking fairness because – (a) there was no provision for “transfer” of
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any case from one Special Court on any ground; (b) The Special Court was to be presided over by a
retired High Court judge, whose appointment could be terminated at the will of the Government; (c) In the
selection of such a judge, the concurrence of the Chief Justice of India was not required so that the
accused was to be tried by a judge whose tenure depended on the pleasure of the Government and would,
therefore, be lacking in independence.
But in Bachan Singh v State of Punjab,92 without questioning the implication of “fairness” and
“reasonableness” in Article 21 (as had been in Maneka’s case (supra)), but came to hold that there was
nothing unfair in hanging a man for a heinous offence like murder and that accordingly section 302 of the
Indian Penal Code, 1860 did not violate the unfairness concept which is implicit in Article 21.
The unfairness implication of Article 21 has thus come to stay. Have we not travelled to the other pole
from Gopalan v State of Madras,93 and would a jurist be wrong to say that this somersault has been
possible only because the concept of “due process’ had been working in the minds of modern judges of
the Supreme Court who bear indelible impress of the American influence not only in ideas, but even in the
language and diction.93
The most outspoken confession regarding the importance of the concept of “due process” without directly
overruling Gopalan93 is to be found in the following words of Justice V.R. Krishna Iyer:
True, our Constitution has no “due process” clause or the VIII Amendment, but in this branch of law, after Cooper v UOI,94 and
Maneka Gandhi v UOI,95 the consequence is the same. For what is punitively outrageous, scandalising unusual or cruel and
rehabilitatingly counter-productive is unarguably unreasonable and arbitrary and is shot down by Articles 14 and 19 and if inflicted with
procedural unfairness, falls foul of Article 21.96 Of course, none of the decisions so far has condemned unfairness in a criminal law upon
an express reliance upon the concept of “due process” but the same result has been achieved by either falling back upon Article 19 or
reading Article 21 together with Article 19.97 This is a position which would never have been countenanced by the majority in
Gopalan’s case93 who would exclude the application of Article 19 to a penal law as to which according to them, Article 21 offered an
exclusive code. The roundabout turn has been possible only because later judges, some of whom had American legal education, have
been inspired by the concept of “due process” which of course they could not openly confess because of the deliberate exclusion of that
expression from Article 21 by the makers of the Constitution.1.
I. Immunity from outside influence
As stated at the outset, the first ingredient of judicial independence is that a Judge should be free to arrive
at his judicial decision objectively, and without any,2 interference, pressure or influence from any outside
agency.
Under the Indian Constitution, it means, in short, that the judge must be allowed to work under a
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condition which enables him to keep his oath of office (Forms IV and VIII of the Third Schedule to the
Constitution)—”to uphold the Constitution and the laws” “without fear or favour”. How many people
realise that this is not a mere homily addressed to a judge but constitutes a corresponding right of every
litigant that his judge must be independent and impartial’3 independence and impartiality, in fact, are
intertwined and it is futile to expect an impartial judgment from a judge who is not immune from
extraneous influences of any kind whatever. “Impartiality”, as one of America’s best Judges once
observed: “is not a technical conception. It is a state of mind.”4
I have always thought from my earliest youth till now”, said the great Chief Justice Marshall “that the greatest scourge an angry Heaven
ever inflicted upon an ungrateful and a sinning people was an ignorant and a corrupt or a dependent judiciary. 5
In a democratic country, all government officials, high or low, are public servants, which they more often
than not forget; but judges are public servants par excellence.6 The reason I shall explain, by quoting from
the Constitution adopted by the State of Massachussetts in the year 1780:
It is essential to the preservation of the rights of every individual, his life, liberty, property and character, that there be an impartial
interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and
independents as the lot of humanity will admit.7
In fact, this principle was borrowed by the Americans from the guarantee in clause 40 of the Magna Carta
(1215) that “to none will we sell, to none will we deny, to none will we delay right or justice”.
Such a condition does not postulate merely an absence of interference from any external agency, but a
subjective feeling by a judge that he is there to administer the law, including the fundamental law, and
“not the will of the Executive”.8 If a judge comes into such frequent contacts with members of the
Executive as gives the least justification to a wrong-headed critic to use the slang “hobnobbing”, it is
likely to produce what LORD ATKIN lamented of, in his memorable dissent in Liversidge’s case,9
namely, Judge who is” “more executive minded than the executive”.
Is it possible for such a judge to say, like Lord Coke, citing Bracton,10 in the face of an absolute monarch,
that “the King is under God and the laws”11; to say like Lord Camden that “the King ........ has no power to
declare when the law ought to be violated for reason of State”12; to say like Viscount Finlay, that the plea
of “act of State’ is not available against a subject;13 or to say, like LORD GREENE:
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I do not...... think that fear of embarrassing the executive is a very attractive ground on which to build a rule of common law.14
An independent Judge would be a person whom “nothing could daunt and nothing could bribe” to use the
words by which Learned Hand described his predecessors in office.15
There is a deep historical significance in the line of Shakespeare’s “Henry the Eighth” where the wretched
Queen Katherine passionately declares: “Heaven is above all yet; there sits a Judge,that no King can
corrupt”. Whether or not the decision of a judge brings satisfaction or anger to the Prime Minister and his
colleagues, or to the Lord Chancellor, he cannot be dismissed at will. His tenure is for life or until
retirement subject only to good behaviour. [There are now statutory retiring ages (except the Lord
Chancellor)]. His salary is fixed and paid out of the Consolidated Fund in order that it may not be
subjected to the running fire of criticism of Parliament to which all the ordinary items of budgetary
expenditure are liable. His conduct cannot even be discussed in Parliament save on a substantive motion
for an address for removal from office; an extreme step to be taken only in the event of impropriety of the
gravest kind……...
The independence of the Judge is of essential importance in so far as it enables the Judge to adopt a
particular attitude of mind towards the questions which came before him for decision. He can, in short,
determines the case before him without fear that adverse results or material reward will accrue to him
according to whether the decision does or does not meet the approval of other persons.16 Impartiality or
independence of the Judge required both an open mind and freedom from the influence, real or apparent
of departments concerned with the subject-matter of their decision.17 But it is stated that the idea that “by
taking the oath of office as a Judge, a man ceases to be human and strips himself of all predilections,
becomes a passionless thinking machine, is doubtless beyond achievement”.18
Article 50 (i.e., separation of judiciary from the executive) constitutes the “conscience of the Constitution”
which embodies the social philosophy of the Constitution. It plainly reveals without any scope of doubt or
debate, the intent of the Constitution makers to protect the judiciary from any executive control or
interference.19. Simply stated, Article 50 provides that there shall be a separate judicial service free from
executive control.20 The judiciary must be free not only from executive pressure, but also from executive
control. The judiciary must be free not only from the executive pressure, but also from other pressures.21
However, the concept of independence of the judiciary has to be confined within the four corners of the
Constitution and cannot go beyond the Constitution.22 The concept of judicial in judicial independence is
a wider concept taking within its sweep independence from any pressure or prejudice.23 High Court of
Judicature of Bombay through its Registrar v Shirish Kumar Rangrao Patil,.24
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Independence of the judiciary is a basic feature of the Constitution. The concept of judicial independence
is deeply ingrained in our Constitutional Scheme.25 There cannot be an independent judiciary when the
power of appointment of superior judges vests in the executive. The independence of the judiciary is
inextricably linked and connected with the constitutional process of appointment of judges of the highest
judiciary.
The judiciary in India has been assigned a significant role to play. It has to dispense justice not only
between one person and another, but also between the State and its citizens. It interprets the Constitution
and acts as its guardian by keeping all authorities – legislative, executive, administrative, judicial and
quasi-judicial – within its bounds. The judiciary is entitled to scrutinise any governmental action in order
to assess whether or not it conforms with the Constitution and valid laws made thereunder. The judiciary
supervises the administrative process in the country and acts as a balance-wheel of federalism by settling
inter-governmental disputes.
Independence of the judiciary cannot be secured by vesting the power of appointment of the superior
judges in the Executive. The independence of the judiciary is inextricably linked and connected with the
constitutional process of appointment of judges of the highest judiciary. Independence of the judiciary is
the basic feature of the Constitution. The framers of the Constitution could have never intended to give
this power to the Executive. Even otherwise the Governments – Central or the States – are parties before
the court in a large number of cases. The Union executive has vital interests in various important matters
which come for adjudication before the Supreme Court. The Executive in one form or the other is the
largest single litigant before the courts. In this view of the matter, the judiciary being the mediator
between the people and the Executive, the framers of the Constitution could not have left the final
authority to appoint the judges of the Supreme Court and of the High Courts in the hands of the Executive.
The role of the judiciary under the Constitution is a pious trust reposed by the people. The Constitution
and the democratic polity thereunder shall not survive; the day judiciary fails to justify the said trust. If the
judiciary fails, the Constitution fails and the people might opt for some other alternatives.
Independence of judiciary is the sine qua non of democracy. So long as the judiciary remains truly distinct
from both legislative and executive, the general power of the people can never be endangered from any
quarters. Montesquieu in his book “Spirit of the Laws” observed:
There is no liberty, if the power of judging be not separated from the legislative and the Executive powers
The framers of the Constitution made it known in an emphatic voice that separation of judiciary from the
Executive which is the lifeline of “independent judiciary” is a basic feature of the Constitution. Dr. B.R.
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Ambedkar in his speech in the Constituent Assembly on 7 June 1949 observed:
I do not think there is any dispute that there should be separation between the executive and the judiciary and in fact all the articles
relating to High Court as well as the Supreme Court have prominently kept that object in mind.
To safeguard the will of the people enshrined in the Constitution, it is necessary to keep the judiciary truly
distinct from both the Legislature and Executive. This is what the framers of our Constitution have done.
It was, however, contended at the bar that the independence of the judiciary has been secured by
providing security of tenure and other conditions of service of individual judges. This may be so, but in
recent times, with the expanded horizon of judicial review, the concept of judicial independence has
achieved new heights. The Supreme Court of Canada in The Queen v Beauregard,26 propounded the
broader concept of judicial independence as under:
Historically, the generally accepted core of the principle of judicial independence has been complete liberty of individual judges to hear
and decide the cases that came before them no outsider – be it Government pressure group, individual or even another judge – should
interfere in fact or attempt to interfere with the way in which a judge conducts his or her case and makes his or her decision. This core
continues to be central to the principle of judicial dependence. Nevertheless, it is not the entire content of the principle.
Of recent years the general understanding of the principle of judicial independence has grown and been
transformed to respond to the modern needs and problems of free democratic societies. The ability of
individual judges to make decisions in cases free from external interference or influence continues, of
course, to be an important and necessary component of the principle. Today, however, the principle is far
broader. In the words of a leading academic authority on judicial independence, Prof. Shimon Shetreet,
The judiciary has developed from a dispute resolution mechanism to a significant social institution with an important constitutional role
which participates along with other institutions in shaping the life of the community.
There is, therefore, both an individual and a collective or institutional aspect to judicial independence. As
stated by Justice Le Dain in Valente v The Queen,27
judicial independence connotes not merely a state of mind or attitude in the actual exercise of judicial function, but a status or
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relationship to others, particularly to the executive branch of Government, that rests on the objective conditions or guarantees.
It is generally agreed that judicial independence involves both individual and institutional relationships;
the individual independence of a judge as reflected in such matters as security of tenure and the
institutional independence of the court or tribunal over which he or she presides as reflected in its
institutional or administrative relationships to the executive and legislative branches of Government.
The rationale for the two-pronged modern understanding of judicial independence is recognition that the
courts are not charged solely with the adjudication of individual cases. That is, of course, one role. It is
also the context for a second different and equally important role, namely, the protector of the
Constitution and the fundamental values embodied in it is the rule of law, fundamental justice, equality,
preservation of the democratic process, to name perhaps the most important. In other words, judicial
independence is essential for fair and just dispute resolution in individual cases. It is also the life-blood of
constitutionalism in democratic societies.
Chief Justice Dickson who spoke for the court further observed as under:-
The role of the court as resolver of disputes, interpreter of the law and defender of the Constitution requires that they be completely
separate in authority and function from all other participants in the Justice system.
An objective determination requires that a Judge must be free from outside influence, and that any attempt
to influence a Judge in his judicial function or to obstruct or interfere with the administration of justice
must be prevented. In the English system, the protection of the courts from such influence, whether from
the Government,28 the Press or from an individual, is secured by penalising an act of such interference
with the smooth course of justice as a “contempt of court”, which will be further dealt with under Article
129, post.
The need for independence of the judiciary under any system of Constitutional Government can best be
explained in the words of JUSTICE FRANKFURTER in Cooper v. Aaron:29
The most prized liberties themselves presuppose an independent judiciary through which these liberties may be, as they often have
been, vindicated. When in a real controversy such as is now here, an appeal is made to law, the issue must be left to the judgment of
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courts and not the personal judgment of one of the parties. This principle is a postulate of our democracy.29
(a) Where the Judges are appointed by the Executive, independence of a Judge from external
influence would primarily mean freedom from pressure of influence from the Executive,30 in the
exercise of his adjudicatory function. (DESAI, J.)
Independence of the Judges not only refers to security of tenure but also the freedom of the
judges to act according to their reason and conscience, apart from the desire or convenience of
the Executive. Judges have to administer the law and not the will of the Executive,31 and the
Executive should have no opportunity of influencing their judgment either directly or
indirectly. There was a time in England when Judges were subservient to the Crown, but the
Act of Settlement, 1707, which guaranteed security of tenure to the Judges closed that chapter
of English constitutional history and there has since been no question as to the fidelity of an
English Judge to the oath he takes on his appointment, that he “will do right to all manner of
people .... without fear or favour, affection or ill-will.” That the same result is intended by the
makers of our Constitution is evident from the fact that the form of oath prescribed for the
Judges of our Supreme Court and the High Courts32 reproduce a similar expression as in
England. In High Court of Judicature of Bombay v Shirish Kumar R. Patil,33 it was held: “In a
democracy governed by rule of law, under a written Constitution, Judiciary is the “sentinel on
the qui vive” to protect fundamental rights and posed to keep even the scales of justice
between the citizens and the State or the States inter se. Rule of law and judicial review are
basic features of the Constitution. As its integral constitutional structure, independence of
judiciary is an essential attribute of rule of law. Judiciary must, therefore, be free from
pressure or influence from any quarter. The Constitution has secured to them the
independence”.
A Judge is not holding an office under Government of India as to hold so will militate against
the concept of independence of judiciary. A Judge holds a Constitutional office. In UOI v
Sankalchand Himatlal Seth,34 it was held: “Judges of the High Court owe their appointment to
Constitution and hold a position of privilege under it… They, the Judges of High Court, are
not government servants in the ordinary signification of that expression… In fact, a High
Court Judge has no employer; he occupies a high constitutional office which is in co-
ordination with the executive and the legislature. The independence of judiciary is a fighting
faith of our Constitution.”35 When sitting Judges are appointed to head Tribunals or
Commissions, to preserve the independence of High Court Judges, the Supreme Court has laid
down guidelines for appointment of these Judges to Tribunals, Commissions, etc.36
(b) It goes without saying that there is no independence of the Judiciary where the executive and the
judicial functions are placed in the hands of the same person, and the prosecutor becomes the
judge. In order to ensure this freedom, the Indian Constitution has provided for the separation of
the Judiciary from the Executive, in Article 50, which has been implemented by the Code of
Criminal Procedure, 1973.37
(c) It has also been emphasised by our Supreme Court that in view of the provisions of the Preamble
and the Directive Principles of the Constitution, which are binding on every limb of the State
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including the Judiciary, it is a duty of the Judiciary to ensure social and economic justice and,
therefore, in India, independence of the Judiciary means not only independence from the
Executive but also independence or freedom from pressure from any non-governmental force or
vested interests which operate as menaces in the discharge of the function of the Judiciary to
ensure social justice (para. 26).38
Courts are not representative bodies. They are not designed to be a good reflex of a democratic society.
Their judgment is best informed and, therefore, most dependable within narrow limits. Their essential
quality is founded on independence. History teaches that the independence of the judiciary is jeopardised
when courts became embroiled in the passion of the day and assume primary responsibility in choosing
between compelling political, economic and social pressures.39 Judicial review often involves a conflict
between judicial and legislative judgment as to what the Constitution means or requires.40 While judges
have an obligation to ensure that the constitutional bonds are not overreached, they may not act as judges
as they might as legislate.
It is interesting to note what Lord Denning said about the dependence of British judges.
We regard the judges as standing between the individual and the State, protecting the individual from any interference with his freedom
which is not justified by the law. But the Soviet Russia regards its tribunals as part of the State machine to carry out State policy. Lenin
said that “the Tribunal is the instrument of the proletariat and the working class” and this maxim was inscribed in letters of gold in his
audience chamber. Soviet Russia rejects altogether the theory of separation between judicial and executive power. The judicial power is
simply a part of the executive function.
And when I speak of judges, I include also all the Magistrates and others who exercise judicial functions. No member of the
Government, no Member of Parliament and no official of any Government department has any right whatever to direct or influence to
interfere with the decision of any of the judges. It is the sure knowledge of this that gives the people their confidence in the judges and I
would add also the Chairman of Tribunals when they are independent of the Executive, for, then they too are judges. It does not depend
on the name of the judge or Chairman, but on the substance. The official test which they must pass if they are to receive the confidence
of the people is that they must be independent of the executive.
Why do the English people feel so strongly about this? I will tell you. It is born in them. We know in our bones that it will not be so
good for us to allow the Executive to have any control over judges and we know it because our forefathers learnt it in their struggle with
the Kings of England – the King who in the old days exercised the supreme executive power in the land. The courts, you must
understand, were the King’s courts and the judges were always King’s judges. The King appointed them and the King at the time could
remove them at his pleasure. He still appoints them, but he cannot remove them.41
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It is the essence of judicial service that there is no master and servant relationship between a judge and the
Government. The judge cannot be asked by the Government to decide a case in a particular way. Even the
High Court generally only corrects the judge of the lower court, it does not command him.42 Some of the
courts’ strongest Justices have stressed the voice of a vigilant and attentive public interest as it works.
Judges and courts are alike open to criticism and if reasonable argument is offered against any judicial act
as contrary to law or to the public good, no court could or would treat it as a contempt of court.43 There is
no doubt that the court like any other institution does not enjoy immunity from fair criticism. While fair
and temperate criticism of the court, even if strong, they might not be actionable, but attributing improper
motive or intending to bring the judges of the Courts into hatred and contempt or obstructing directly or
indirectly with the functioning of the court is a serious contempt of which notice must and will be taken.
Respect is expected not only from those to whom the judgment of the court is acceptable, but also from
those to whom it is repugnant. Those who err in their criticism by indulging in the vilification of the
institution of the court, administration of justice and the instruments through which the administration
acts, should take heed for they will act at their own peril.44 The freedom of expression to any person
cannot extend to scandalise the judiciary as a whole or the members of the judiciary who have not issued
orders favourable to the accused, in parole. No such freedom of expression is expressed and the accused
cannot claim such a right to scandalize and hurl abuses against the judge who do not issue orders in his
favour.
A citizen is entitled to bring to the notice of the public at large the infirmities from which the including
judiciary suffers from. Indeed, the right to offer healthy and constructive criticism which is fair in spirit
must be left impaired in the interest of the institution itself. Critics are instruments of reform, but not those
actuated by malice, but those who are inspired by public will. Bona fide criticism of any system or
institution including judiciary is aimed at inducing the administration of the system or instrumentalities of
the State are subject to the Constitution and the laws and are not above criticism. Healthy and constructive
criticisms are tools to augment its forensic tools for improving its function. A harmonious blend and
balanced existence of free speech and fearless justice counsel that law ought to be astute to criticism.
Constructive public criticism even if it slightly oversteps its limits, does the fruitful play in preserving
health to public institution. Section 5 of the Contempt of Court Act, 1971 accords protection to such fair
criticism and saves from contempt of court. The best way to sustain the dignity and respect for the office
of judge is to deserve respect from the public at large by fearlessness and the objectivity of the approach
to the issues arising for decision, quality of judgment, restraint, dignity and decorum a judge observes in
judicial conduct off and on the Bench and rectitude.45 No person can flout the mandate of law of the
respective courts for the establishment of rule of law under the cloak of freedom of speech and expression
guaranteed by the Constitution. Such a freedom is subject to reasonable restriction imposed by any law.
Where a provision in the law relating to contempt imposes reasonable restrictions, no citizen can take the
liberty of scandalising the authority of the institution of the judiciary. Freedom of speech and expression,
so far as they do not contravene the statutory limits as contained in the Contempt of Courts Act, 1971 is to
prevail without any hindrance. However, it must be remembered that the maintenance of the dignity of the
courts is one of the cardinal principles of rule of law in a democratic set up and any criticism of the
judicial institution couched in a language that apparently appears to be a mere criticism, but ultimately
results in undermining the dignity of the courts cannot be permitted when having been found to have
crossed the limits and has to be punished.46 The notion of a judge being impartial needs more thought than
it is commonly given. Lord Justice Scrutton in discussing the need for impartiality, said:
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This is rather difficult to attain in any system. I am not speaking of conscious impartiality, but the habits you are trained in, the people
with whom you mix, may lead to your having a certain class of ideas of such a nature that, when you have to deal with other ideas, you
do not give as sound and accurate judgment as you would wish.
In D.C. Saxena v Hon’ble Chief Justice of India,47 the Supreme Court observed:
Advocacy touches and asserts the primary value of freedom of expression. It is a practical manifestation of the principle of freedom of
speech. Freedom of expression in arguments encourages the development of judicial dignity, forensic skills of advocacy and enables
protection of fraternity, equality and justice. It plays its part in helping to secure the protection of other fundamental human rights.
Freedom of expression, therefore, is one of the conditions for the progress of advocacy and for development of every man including
legal fraternity practising the profession of law. Freedom of expression, therefore, is vital to the maintenance of free society. It is
essential to the rule of law and liberty of citizens. The advocate or the party appearing in person, therefore, is given liberty of
expression. But they equally owe countervailing duty to maintain dignity, decorum and order in court proceedings or judicial process.
The liberty of free expression is not to be confounded or confused with licence to make unfounded allegations against any institution,
much less the judiciary. In other words, imputing partiality, corruption, bias, improper motives to a judge is scandalisation of the court
and would be contempt of the court. Even the imputation of lack of impartiality or fairness to a judge in the discharge of his official
duties amounts to contempt. The gravamen of the offence is that of lowering his dignity or authority or an affront to the majesty of
justice. When the contemner challenges the authority of the court, he interferes with the performance of duties of a judge’s office or
judicial process or administration of justice or generation or production of tendency bringing the judge or judiciary into contempt.
Abuses, attribution of motives, vituperative terrorism and defiance are no methods to correct the errors of
the courts. In the discharge of their functions, the courts have to be allowed to operate freely and
fearlessly, but for which impartial adjudication would be an impossibility. Ours is a constitutional
Government based on rule of law. The Constitution entrusts the task of interpreting and administering the
law to the judiciary whose views on the subject are made legally final and binding on all till they are
changed by a higher court or by a permissible legislative measure. Those living and functioning under the
Constitution have to accept and submit to this obligation of respecting the constitutional authority of the
courts. Under a Constitutional Government, such final authority has to vest in some institution. Otherwise,
there will be chaos. The court’s verdict has to be respected not necessarily by the authority of its reason,
but always by reason of its authority. Any conduct designed to or suggestive of challenging this crucial
balance of power devised by the Constitution is an attempt to subvert the rule of law and an invitation to
anarchy.48 It is fundamental that if rule of law is to have any meaning and content, the authority of the
court or a statutory authority and the confidence of the public in them should not be allowed to be shaken,
diluted or undermined. The courts of justice and all Tribunals exercising judicial function from the highest
to the lowest are by the Constitution entrusted with functions directly connected with the administration of
justice. It is that expectation and confidence of all those who have or likely to have business in that court
or Tribunal which should be maintained, so that the court/Tribunal perform all their functions at the
highest level of rectitude without fear, affection or ill-will. Casting of defamatory expressions upon the
character, ability or integrity of the judge/Judicial officer/authority undermines the dignity of the
court/authority and it would tend to create distrust in the popular mind and impede confidence of the
people in the courts/Tribunals which is of prime importance to the litigants in the protection of their rights
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and liberties. The protection to the judge/Judicial officer/authority is not personal but accorded to protect
the institution of the Judiciary from undermining the public confidence in the efficiency of judicial
process. The protection, therefore, is for fearless crucial process. Any scurrilous, offensive, intimidating
or malicious attack on the judicial officer/authority beyond condonable limits amounts to scandalising the
court/Tribunal amenable to not only conviction for its contempt but also liable to libel or defamation and
damages personally or group libel. Maintenance of dignity of the court/Judicial Officer or quasi-judicial
authority is, therefore, one of the cardinal principles of law embedded in judicial review. Any uncalled for
statement or allegation against the judicial officer/statutory authorities casting aspersion on court’s
integrity or corruption would justify initiation of appropriate action for scandalising the court or tribunal
or vindication of authority or majesty of the court/Tribunal. The accusation against judicial officer or
authority that their action is arbitrary and corrupt conduct undermines their authority, and it rudely shakes
them and public confidence in proper dispensation of justice. It is of necessity to protect the dignity or
authority of the judicial officer to maintain the stream of justice, pure and unobstructed. The judicial
officer/authority needs protection personally. Therefore, making wild allegation of corruption against
Presiding Officer amounts to scandalising the court/statutory authority. Imputation of motives or
corruption to the judicial officer/authority by any persons or group of persons is a serious inroad into the
efficacy of the judicial process and a threat to judicial independence and needs to be dealt with strong arm
of law.49 While hypersensitivity and peevishness have no place in judicial proceedings - vicious
stultification and vulgar debunking cannot be permitted to pollute the stream of justice. Indeed under our
Constitution, there are positive values like right to life, freedom of speech and expression, but freedom of
speech and expression does not include distorted orders of the court and present incomplete and a one-side
picture deliberately which has a tendency to scandalise the court. Under cover of freedom of speech and
expression, no party can be given a licence to misrepresent the proceedings and orders of the court and
deliberately paint an absolutely wrong and incomplete picture which has the tendency to scandalise the
court and bring it into disrepute or ridicule. The right of criticising in good faith in private or public, a
judgment of the court cannot be exercised with malice or by attempting to impair the administration of
justice. Indeed, freedom of speech and expression is “life-blood of democracy”, but this freedom is
subject to certain qualifications since that offence exists to protect the administration of justice and
reasonably justified and necessary in a democratic society. It is not only an offence under the Contempt of
Courts Act, but also “sui generis”. Courts are not unduly sensitive to fair comment or even outspoken
comments being made regarding their judgment and orders made objectively, fairly and without any
malice but no one can be permitted to distort orders of the court and deliberately give a slant to its
proceedings which have the tendency to scandalise the court or bring it to ridicule, in the larger interest of
protecting administration of justice.50 Fair criticism of the conduct of a judge, the institution of the
judiciary and its functioning may not amount to contempt, if it is made in good faith and in public interest.
To ascertain the good faith and public interest, the courts have to see all the surrounding circumstances
including the persons responsible for the comments, his knowledge in the field regarding which the
comments are made and the intended purpose sought to be achieved. All citizens cannot be permitted to
comment upon the conduct of the courts in the name of fair criticism, which if not checked, would destroy
the institution itself. A litigant losing in the court would be the first to impute motives to the judges and
the institution in the name of fair criticism which cannot be allowed for preserving the public faith in an
important pillar of democratic set up i.e., the judiciary.51
If the authority of the court is undermined or impeded by acts or publication, the fountain of justice would
get sullied creating distrust and disbelief in the minds of litigant public and the right thinking public at
large. Indeed everybody is entitled to express his honest opinion about the correctness or legality of a
judgment or sentence or an order of a court. Objective criticism is permissible provided it is made with
detachment in a dignified language and respectful tone. The liberty of expression cannot be treated as a
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licence to scandalise the court and instead of criticising the judgment entitles the judge who delivered it.52
II. Security of tenure
The need for this independence becomes most important in cases where the State itself is one of the
parties in the controversy. In such cases, in order that the Judges may administer justice freely, that is,
without “fear or favour”, it is essential that their tenure should not depend upon the mere pleasure of the
Government, but upon what is called “good behaviour”.53 “The security of tenure which the Judge enjoys
is at bottom the most essential fact underlying the principle of independence. It results in a recognition by
the general public that the Judge has nothing to lose by doing what is right and nothing to gain by doing
what is wrong. It is found on the belief that a man cannot be relied upon an act rightly regardless of the
personal consequences.”54 So long as the tenure of judicial office dependent on royal pleasure, there was
risk of the subservience of Judges to the Crown. To ensure that English Judges should not hold office at
the pleasure of the Crown, the Act of Settlement, 1700 provided that they should hold office “quamdiu se
bene gesserint” (during good behaviour), but subject to a power of removal upon an address from both
Houses of parliament. The misconduct for which he may be removed, by a solemn parliamentary process
is rare and improbable; and no responsible person has suggested that a Judge should be removed because
he was thorn in the side of government.55 The protection afforded Judges of Tribunals deriving their
jurisdiction from Article III (Constitution of USA) include life tenure with removability only for
misconduct in office and the guarantee that judicial salaries may not be diminished during tenure in
office.56 This is secured by the express provision in our Constitution that Judges of the Supreme Court
[Article 124(4)] or of a High Court [Article 217(l), Proviso (b)] shall not be removable except by an
address by both Houses of Parliament to the President, passed by a special majority, and on the ground of
“proved misbehaviour or incapacity” (see post). Apart from this procedure of “joint address” which is a
difficult one, a Judge of the superior Courts, in India, is guaranteed absolute security of tenure.
III. Conditions of service
Apart from security of tenure and independence of the administrative authorities, it is also essential that so
long as they remain in office, the conduct of the Judges should not be subject to interference even by
Parliament. In the case of the Judges of the superior courts, this is secured in India—
(a) By fixing the salaries of the Judges of the Supreme Court and High Courts 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. In
other words, his right to remuneration will not be affected adversely by any changes made by law
since his appointment.57 [Articles 125(2) and 221]
But it will be competent for the President to override this guarantee, under a Proclamation of
“Financial Emergency”. [(Article 360(4)(b)]
(b) By providing that the administrative expenses of the Supreme Court and the High Courts, the
salaries and allowances etc. of the Judges as well as of the staff of these courts shall be “charged
upon the revenues of India”, i.e., shall not be subject to vote in Parliament. [Articles 146(3) and
202(3)(d)]58
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Hence as in England, the salaries etc. of the Judges are not dependent upon the annual vote of
Parliament, and the judicial administration cannot be debated in Parliament.
(c) By providing that even individually, the conduct of a Judge cannot be criticised in Parliament,
except upon a substantive motion for presenting an address to the President for the removal of
Judge. In order to protect a Judge in the fearless discharge of his judicial duties from criticism in
legislative proceedings, it has been provided that the conduct of a Judge shall be immune from
any discussion in the Legislature, except in proceedings for his removal. [Articles 121 and 211]
IV. Oath of office
As stated earlier, the very oath of office which a Judge of the superior courts has to subscribe, under
Articles 124(6) and 219 and Schedule III (IV, VIII), requires that he must perform his judicial duties
without fear of any pressure from the Executive and without expecting any favour from the Government
which commands a large patronage.59 By judicial oath, they promise “to do right to all manner of people
after the laws and usages of this realm, without fear or favour, affection or ill-will”.
V. Judicial decisions binding on the Executive
Independence of the judiciary not only requires that a Judge must be free from executive influence in
coming to his decision but must also have the assurance that his decision will be carried out by the
Executive.
It was held by the House of Lords that ministers and civil servants were subject to the contempt
jurisdiction of the courts, and the Home Secretary was in contempt when he disobeyed a Judge’s order to
return to London a Zairen teacher who had sought asylum in England.60 It was observed therein that the
dangers of exempting ministers of the Crown from the coercive jurisdiction of the courts, and said of the
argument that there was no power to enforce the law by injunction or contempt proceedings against a
minister in his official capacity that it would, if upheld, establish the proposition that the executive obey
the law as a matter of grace and not as a matter of necessity, a proposition that would reverse the result of
the Civil war. It was held in another case: “The proper constitutional relationship of the executive with the
courts is that the courts will respect all acts of the executive within its lawful province, and the executive
will respect all decisions of the courts as to what its lawful province is”.61
In a government of laws not of men, the executive branch of the government bears a grave responsibility
for upholding and obeying judicial orders.62 If the orders of courts are not obeyed, the person against
whom the order is made can be found guilty without offending the rule of Crown immunity. The court
awarded an exemplary sentence of one month’s imprisonment to the two individuals.63
The Constitution has entrusted the task of interpreting the law to the Judiciary whose view on the subject
is made legally final and binding on all till it is changed by a higher court or by a permissible legislative
measure. Those living and functioning under Constitution have to accept and submit to this obligation of
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respecting the constitutional authority of courts. Under a constitutional government, such final authority
has to vest in some institution. Otherwise, there will be chaos. The court’s verdict has to be respected not
necessarily by the authority of its reason, but always by reason of its authority. Any conduct designed to
or suggestive of challenging this crucial balance of power devised by the Constitution is an attempt to
subvert the rule of law and an invasion to anarchy.64
The leading decisions on the subject.65 A Judge should not, accordingly, depart from the application of
law on the ground that the Executive would be “embarrasse”,66 even where Foreign Affairs are involved
(provided, of course, the question is justiciable),67 nor conversely, should the Government intercept a
petition to the court, in a judicial matter, on any ground.68
VI. Power to punish for its own contempt
The Supreme Court (Article 129) and a High Court (Article 215) have been given the power to punish any
person for contempt of itself and thus to protect itself against interference in the course of administration
of justice, from whatever source it may come.69
5 Conditions which do not fetter judicial independence
It has been pointed out that, provided the foregoing conditions for securing judicial independence are
ensured, there are certain limits to the doctrine of independence, because the Judiciary, being only one of
the limbs of the State, cannot claim to act in isolation.70
Hence, the following provisions of the Constitution have been held not to violate the principle of
independence of the Judiciary:
(a) Articles 124(2) and 217(1) : Appointment by the Executive.
Judges of the Supreme Court and the High Courts are appointed by the President, who has to act on the
advice of his Council of Ministers.71 Of course, there is a check upon this executive power in so far as the
Constitution provides for consultation with other dignitaries, e.g., the Chief Justice of India [Article
124(l), 1st Proviso; 217(l)].71 Appointments are made “in consultation” with the Chief Justice of India and
the opinion of Chief Justice of India in the process of consultation must be given primacy. Consultation
must be to achieve a constitutional purpose and should not be rendered sterile by a literal interpretation.
The process of consultation is to discharge a “constitutional trust” and the consultation envisaged in the
first proviso to Article 124(2) and Article 217(1) (in respect of High Court Judges) in respect of judicial
officers is a reservation or limitation on the power of the President to appoint Judges of the superior court
and is not an empty formality nor a futile exercise or a mere casual one attached with no sanctity. It is
mandatory in character.
Appointment by the Executive, of itself would not impair judicial independence, provided, after such
appointment, the Executive has no scope to interfere with the work of a Judge.72
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In India, even though appointed by the Government, Judges of the Supreme Court or of the High Courts
are not “government servants” in the ordinary signification of that expression because the following
features distinguish these Judges from other government servants:
(i) Government has no power to direct what work or the manner in which a Judge shall discharge his
judicial duties.73
(ii) Their tenure of service, salary and other conditions of service are guaranteed by the Constitution.73
The rule of law is the foundation of the democratic society. The Judiciary is the guardian of the rule of
law. Hence the Judiciary is only the third pillar, but the central pillar of the democratic State. In a
democracy like ours, where there is a written Constitution, which is above all individuals and institutions
and where the power of judicial review is vested in the superior courts, the judiciary has a special and
additional duty to perform viz., to oversee that all individuals and institutions including the executive and
the legislative act within the framework of not only the law, but also the fundamental law of the land. This
duty is apart from the function of adjudicating the disputes between parties which is essential to the
peaceful and orderly development of the society. If the judiciary is to perform its duties and functions
effectively and true to the spirit with which they are sacredly entrusted to it, the dignity and authority of
courts have to be respected at all costs.74 In Abdul Khan v A.D. Savant J.M.F.C. Nagpur,75 section 154
(156), it was observed:
Courts of Justice are called as “temple of justice”. Temple denotes sanctity, purity and reality. So, in the temple of justice, these things
are observed while administering justice. As the temple is a holy place, so is the court where justice is made impartial and aggrieved
parties are put to happiness with dignity and sanctity. The judges are the guardians of law and justice. Judges have remained the moral
guardian of Indian polity preserving high ideals of law and liberty enshrined in the Constitution. In every case a judge’s conduct should
be above approach. He should be conscientious, studious, thorough, courteous, patient, punctual, just and impartial, fearless of public
clamour, regardless of public praise and indifferent to private, political or partisan influences. A judge is expected to administer justice
according to law and deal with his/her appointment as a public trust, he should not allow other affairs of his private interests to interfere
with the prompt and proper performance of judicial duties, nor should he administer the office for the purpose of advancing his personal
aims or increasing popularity.
High Court judges are repository of the confidence of the people and protectors of their rights and
liberties. Therefore, having regard to the onerous duties and sacrosanct function which a judge has to
the judiciary. Having regard to these circumstances, therefore, once a judge decides to accept the high
post of High Court judge, he has to abide by certain fixed principles and norms and also some sort of self-
court is not lost.76
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A judge shall not allow his judicial position to be compromised at any cost. This is essential for
maintaining the integrity of the judiciary and public confidence in it. A judge is expected to act as an
impartial referee and decide cases objectively, uninfluenced by any personal bias or prejudice. The
credibility of the judiciary as an institution rests on the fairness and impartiality of the judges. Public
confidence in the judiciary rests on the legitimacy of judicial process. Sources of legitimacy are in the
system as distinguished from subjective moods, predilection, emotion and prejudices. Judges must always
ensure that they do not allow the credibility of the Constitution to be eroded. Justice must not only be
done, but it must also be seen to be done.77
Faith in the judiciary is of prime importance. Ours is a free nation. Among such people respect for the law
and belief in its constitutional interpretation by courts requires an extraordinary degree of tolerance and
co-operation for the value of democracy and survival of constitutionalism.78 Learned author TRAYNOR
in his book “The Limits of Judicial Creativity” described “judicial activism” as that of “misbegotten catch
phrase”. In older terminology, “judicial activism” meant judicial supremacy or Government by judges.
LORD EDMUND DAVIES was led into using the title “Judicial Activism” for his Bentham Club
Presidential address by the writings of an American authority who declared that the “English common law
has suffered a menopause” adding that “there have been great judges in England but the Great English
judge is a relic of the past”. In the view of LORD EDMUND DAVIES, “the simple and certain fact is that
judges inevitably acts as Legislature. ….”. Let there be no doubt about it, he goes on to say, “by the act of
interpretation, they are themselves making law”. “Judicial activism” is, therefore, “a description of the
law-making activity of the judges”. LORD EDMUND DAVIES then cited to show how enormous is the
debt owed by this country to the judicial activism of Lord Denning that invincible warrior who has been
described as “bravely resisting the icy group of precedent, but not without much questioning handshaking
and sounds of dissent from elsewhere”.
According to RONALD DWORKING79 in his book,
Judicial activism in its strongest form holds that courts work out principles of legality, equality and the rest, revise these principles from
time to time in the light of what seem to the court fresh moral insight and judge the acts of the Congress, the States and the President
accordingly.
“Judicial restraint” on the contrary argues that court should allow the decision of other branches of Government to stand, even when
they offend the judge’s own sense of the principles required by the broad constitutional doctrine, except when those decisions are so
offensive to political morality that they should violate the provisions on any plausible interpretation or perhaps, when a contrary
decision is required by clear precedent.
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This according to Dworkin puts “judicial restraint” in a stark form.
AHARM BARAK says in his book80 that
any discussion on the question of “judicial activism or self-restraint” must assume that the judges act within the bounds of the zone of
reasonableness. When the judge has no judicial discretion and one possibility exists, the distinction between activism and self-restraint
is meaningless. Thus, the activism – self-restraint distinction has meaning only where there is a discretion, when the judge is free to
choose from among a number of lawful possibilities open to him.
He defines “an activist judge” as a judge who chooses from the group of possibilities open to him, the
possibility that changes the existing law more than any other possibility and he defines “a self-restraint
judge” as a judge who chooses from among all the possibilities, the one that, more than any of the others,
preserves the existing situation. The difference between the two, he says, is only relative. Sometimes he
goes on to say,
one may identify an activist judge who seeks to adept the law to the changing needs of life and restrained judge who seeks to maintain
stability and security in the law.
Consequently, he goes on to observe,
it is meaningless to say that an active judge is a “good” judge or a self-restrained judge is a “good judge”. A good judge is a judge who
chooses the best possibility which may either produce change or preserve what exists. It also follows that it is meaningless to say that an
activist judge is by definition a liberal judge and that self-restrained judge is a conservative judge. Whatever meaning one ascribes to the
terms “liberal” and “conservative” an activist judge might be conservative, when the change he makes produces new conservative
position. Similarly, a restrained judge might be liberal, if in preserving what exists, he preserves the liberal values embodied in the
existing rule.
CRAIG R. DUCAT in his work “CONSTITUTIONAL INTERPRETATION” describes “judicial

restraint” on the balancing of interest. Courts are according to the interest balances “political institutions”,
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that is, judges like other Government officials have a wide range of choice in the decision they make and
in making such choices, their values and attitudes have a substantial and often preponderant influence.
This interest-balancing perspective readily translates into judicial self-restraint. When the constitutionality
of a law is called into question, judges in a democratic system are duty bound to respect the balance
among interests embodied in the statute for the logical reason that, having been passed by a majority in
the legislative branch, it presumably satisfies more rather than fewer interests. For this reason, statutes are
presumptively constitutional.
In this context, the observations of the Supreme Court on this point81 recall what the Author had said as
early as 1972 in his Tagore Law Lectures:82
In this context, it should also be pointed out that the mere fact that the Judges of the superior courts even are appointed by the Executive
should not stand in the way of their independence. If they are to be appointed, such appointment must ultimately come from the
Executive who exercise the power to appoint all holders of offices in the body politic, but that need not convert Judges into83
“government servants” in the same way as other civil servants are. Neither in the United Kingdom nor in the United States are Judges of
the superior courts, at least, regarded as civil servants. In this connection, it must be pointed out that the very Preamble of our
Constitution which promises to the people “liberty of thought, expression, belief, faith and worship”, and “equality of status and of
opportunity” would be turned into an idle profession if the provisions in Articles 16, 19 and the like are not enforced against the State
itself by Judges whom “nothing can daunt nor bribe.” This is a task which cannot be performed by civil servants or anybody having like
mentality.83
The Judges of the Supreme Court and the High Court hold a co-ordinate status under the Constitution and
are not subordinate either to the Executive or the Legislature.84
Committed Judges
The principle of appointment of Judges by the Executive does not impair judicial independence, so long
as the Executive makes no attempt to select “committed Judges in order to get judgments favourable to
the party in power,85 and, if need be, “to pack” the court by such new appointees.
A suggestion has been made by some Judges in Gupta’s case86 that a Judge must take an “activist” role to
further the socio-economic goals aimed at by our Constitution and that, accordingly, “while appointing
each individual the constitutional philosophy of each individual ought to be a vital consideration”. The
Author regrets his inability to subscribe to this view, however, alluring it may be. In the Author’s opinion,
the Supreme Court and the High Courts being the highest courts of law, learning in law should be the only
criterion for selection amongst rival candidates for these highest judicial posts. If the candidate has learnt
the law well, and his learning is not jaundiced by affiliation to any particular political ideology, there
cannot be any apprehension that his judgments will be contrary to the tenor of the Directive Principles or
the like. Secondly, how is the Council of Ministers to test the “constitutional philosophy” of each
candidate? The interpretation of the constitutional goals by a Council of Ministers must obviously be the
interpretation of a particular party which is in power for the time being, and a successor party may
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entertain just the contrary view (as has been demonstrated by the Congress and the Janata Governments,
from 1976-78). The views of neither party can claim finality. It is to make a proper adjudication as
between such rival political ideologies that Judges are appointed to a final court of law. It is a travesty of
all principles of justice to assert the contrary, that it is the Judges who should decide according to the
political manifesto of the party in power. If this policy is pursued at the time of each appointment, it
would import the American “spoils system” into the Indian Judiciary, with eyes open as to the patent vices
of the “spoils system” which prevailed in the matter of recruitment to the American Civil Service, prior to
the creation of the Civil Service Commissions.87
It is curious that DESAI, J. in Gupta’s case88 advocated selection according to “constitutional

philosophy”,89 overlooking his own reference to Jackson’s observation90 that “political considerations
have hardly entered the process of judicial selection since 1907”. As another English Author points out,91
though appointments to the superior courts are made by the Crown on the advice of the Prime Minister, in
giving his advice, the Prime Minister has to consult the head of the Judiciary, i.e., the Lord Chancellor,
whose recommendation is departed from by the Prime Minister “only in the most exceptional case”.
In practice, appointments to the superior courts are made only from successful legal practitioners and the
average experience of those appointed is well above the legal minimum. The Lord Chancellor reports that
he is committed to “ensure that the best candidates are appointed to judicial office, regardless of gender
ethnic origin, marital status, sexual orientation, political affiliation, religion or disability” except in the last
case where “the disability prevents the fulfillment of the physical requirements of the office”. It has been
said that the Lord Chancellor “seeks to appoint candidates of the highest integrity and judicial quality,
look in particular for the good judgment once described by Lord Devlin as the first quality of a good
judge.92 (But the authority of Lord Chancellor is being replaced under Constitutional Reforms Act, 2005,
where separate procedure is provided for appointment of Judges of Superior Courts.)
In Subhesh Sharma v UOI,93 court emphasised that an independent, non-political judiciary was crucial to
sustain the democratic political system adopted in India. It was observed that the opinion of Chief Justice
of India has crucial importance in the appointment of Judges, both of Supreme Court and High Courts. It
was observed: “In India, however, the judicial institutions, by tradition have an avowed a political
commitment and the assurance of a non-political complexion of the judiciary cannot be divorced from the
process of appointments. Constitutional phraseology of “consultation” has to be understood and explained
consistent with and to promote this constitutional spirit… The appointment is rather the result of
collective constitutional process. It is a participatory constitutional function. It is, perhaps inappropriate to
refer to any “power” or “right” to appoint Judges. It is essentially a discharge of constitutional trust of
which certain constitutional functionaries are collectively repositories…..…..”
In Supreme Court Advocates-on-Record Association v UOI,94 it was held by the majority that in the
choice of a candidate suitable for appointment, the opinion of Chief Justice of India should have the
greatest weight as he is best suited to know the worth of the appointee; the selection should be made as a
result of a participatory consultative process in which the executive has the power to act as a mere check
on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the
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executive element in the appointment process is reduced to the minimum and any political influence is
eliminated. The court also explained what is meant by “primacy of the opinion of the Chief Justice of
India”. In effect, “the primacy of the opinion of the Chief Justice of India formed collectively, that is to
say, after taking into account the views of his senior colleagues who are required to be consulted by him
for the formation of his opinion”. It was emphasised that this process would achieve constitutional
purpose “of selecting the best available” for the composition of the Supreme Court and the High Court,
which is so essential to ensure the independence of judiciary and to preserve democracy. The greatest
advantage of the above decision is that it “minimised political influence” in the appointment of High
Court Judges since the Executive cannot appoint any person by passing the opinion of the Chief Justice of
India. The above view was further explained in Special Reference No. 1 of 1998.95 In that case, the
Supreme Court held that merit is a predominant consideration for the appointment to the Supreme Court
and where there is outstanding merit, the possessee thereof deserves to be appointed regardless of the fact
he may not stand high in the all India seniority list or in his own High Court. All that then need to be
recorded when recommending him for appointment is that he has outstanding merit.
(a) If the American system be to the contrary, that would not be covetable in India, when we have
adopted the British system of justice which is characterised by certainty, predictability, and
impartial decision. It is also to be noted that the evils of partisan appointments by the President
has led the American Bar Association to set up a Committee on the Federal Judiciary to assess the
legal qualifications of the nominees of the President to make it “difficult for a President to appoint
political hacks who are officially rated incompetent by the lawyers who would be practising law
before them.”96
(b) Apart from the power to appoint permanent Judges, conferred by Article 124(2) [or Article 217],
ancillary appointing power is conferred upon the Executive, by some other provisions of the
Constitution, e.g.;
Article 126: Acting Chief Justice of the Supreme Court.
Article 127: Ad hoc Judges of Supreme Court.
Article 128: Requiring retired Judges to sit in Supreme
Court. Article 223: Acting Chief Justice of High Court.
Article 224: Additional and acting judges of High Court.
Article 224A: Requiring retired Judges to sit in High Court.
(b) Article 222(1): Transfer of a Judge from one High Court to another.97—
This power is to be exercised to subserve the public interest and not by way of punishing a Judge who has
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fallen from the grace of the Executive, or for inconvenient decisions.1
The question of transfer of Judges has been considered in Supreme Court Advocates-on-Record
Association v UOI,2 wherein it was reiterated that there is no requirement of prior consent of the Judge
before his transfer under Article 222, but the opinion of the Chief Justice of India has been given “not
mere primacy” but determinative character in the transfer process and the process of transfer should be
initiated by the Chief Justice of India alone. It was reiterated that the power of transfer could be exercised
only “in public interest” and not to be “punitive” in nature. It was observed that any transfer in accordance
with the recommendation of the Chief Justice of India cannot be treated as punitive or as an erosion in the
independence of Judiciary. The court also elaborately gave how to express the opinion of the Chief
Justice. The procedure to obtain the opinion of the Chief Justice of India was further explained in Special
Reference No. 1 of 1998.3 It is now settled that the Chief Justice of India will recommend a transfer only
“in public interest”, i.e., for promoting better administration of justice throughout the country or at the
request of the concerned Judge.
An order of transfer of a Judge of High Court can be challenged only by the Judge who is affected by the
transfer and by no other person. Judicial review is entertained against the order of transfer only on limited
grounds, i.e., transfer being made without the recommendation of Chief Justice of India.4
It was held that the power under Article 222 is to be exercised only exceptionally and in public interest
and where it becomes expedient and necessary in public interest. Any transfer on the whims and caprices
of the executive or not in public interest can be challenged in court as being ultra vires or without
jurisdiction. Also, no transfer can be made without consulting the Chief Justice of India. Consultation
does not mean concurrence, there must be full deliberation and all the facts and documents must be
considered. But Article 222 does not require consent of a judge to his transfer from one to another High
Court.5 The transfer must only be – (1) in public interest (national) and (2) after effective consultation
with the Chief Justice of India. Consultation or deliberation is not complete until the parties make their
points of view known to the other or others and discuss and examine the relative points of their views.6
The power vested under Article 222 can be exercised only in “public interest”. The concept of “public
interest” when read in Article 222 makes it obligatory, that the views of the Chief Justice of India are
accepted by the executive. Proposal for transfer should be initiated by the Chief Justice of India alone. A
transfer made – (1) in public interest; (2) on the recommendation of the Chief Justice of India cannot be
treated as punitive or as an erosion in the independence of judiciary and is not justiciable.7 Before
recommending the transfer of a puisne judge of one High Court to another High Court also as a puisne
judge, the Chief Justice of India must consult a plurality of judges and he must take into account the views
of the Chief Justice of the High Court from which the judge is to be transferred, any judge of the Supreme
Court whose opinion may have significance in the case and at least one other Chief Justice of the High
Court or any other person whose views he considers relevant. The views of the Chief Justice of the High
Court from which the proposed transfer is to be effected should be expressed in writing and should be
considered by the Chief Justice of India and four senior most puisne judges of the Supreme Court. These
views and those of each of the four senior most puisne judges should be conveyed to the Government of
India along with the proposal of transfer. Unless the decision to transfer has been taken in the manner
aforesaid, it is not decisive and does not bind the Government of India. The opinion of the Chief Justice of
the High Court or the puisne judge proposed to be transferred should be placed before the collegium of
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Chief Justice of India and his first four puisne judges to be taken into account by them before reaching a
final and conclusive decision on the proposal. This principle applies equally to the transfer of a Chief
Justice of one High Court to another except that, only the views of one or more knowledgeable Supreme
Court judge need be taken into account.8
Since this Provision raised a great storm leading to the voluminous judgments in Gupta’s case,9 a
discussion of this topic will be postponed till Article 222, post.
(c) Power of Parliament over the constitution, organisation, jurisdiction and power of the Supreme Court
and High Courts.—
Apart from the general legislative powers conferred by Entries 77-79 of List I of the 7th Schedule, there
are various substantive provisions in our Constitution which empower Parliament to make laws which
may have impact upon the powers and jurisdiction of the Supreme Court and the High Courts; yet they
cannot be regarded as interfering with the independence of the Judiciary to decide the cases so allotted by
the Legislature to their Jurisdiction.9
These are—Articles 32(3), 133(3), 135, 138, 139, 140, 225, 230, 231 and 237.9
[Art 1.6] Who can challenge violation of Independence of the Judiciary
The Supreme Court has held that when the violation of a justiciable provision of the Constitution [e.g.,
Article 222(l)] also affects the independence of the Judiciary, anybody who is vitally interested in the
independence of the Judiciary, such as a practising lawyer, would have the locus standi to challenge the
violation, in a proceeding under Article 226 (or 32, as the case may be).9
POSITION OF THE SUPREME COURT UNDER THE CONSTITUTION
The position of the Supreme Court of India can be discussed with reference to its powers as an Appellate
Court, as a Federal Court and as a guardian of the Constitution.
I. As a Federal Court
It is acknowledged on all hands that:
A Federal Court is an essential element a Federal Constitution. It is at once the interpreter and guardian of the Constitution and a
tribunal for the determination of disputes between the constituent units of the Federation.10
Every Federal Constitution, whatever the degree of cohesion it aims at establishing, involves a distribution
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of powers between the union and the units composing the union, and both union and State governments
derive their authority from and are limited by, the same Constitution. In a unitary Constitution, there is no
such problem to solve, for there the local administrative or legislative bodies are mere subordinate bodies
under the central authority. Hence, there is no problem of judicially determining disputes between the
central and local authorities.
But in a federal Constitution, having a written Constitution, the powers are divided between the national and the State governments, and
it becomes necessary that there must be some authority to determine disputes between the union and the States or the States inter se and
to maintain the distribution of powers as made by the Constitution. Hence, in a Federal Constitution, the Judiciary has an additional
problem, apart from guarding the Constitution against transgression by the organs of the national Government, namely, to maintain the
distribution of powers prescribed by the Constitution as against encroachments by the union and the State governments inter se. It is, in
short, the “umpire in the federal system.11
So, if the Judiciary, in a Federal Constitution, is vested with the power of judicial review, it has the task of
protecting the Constitution not only against the inroads of the different branches of the national
Government but also of the national and the State governments in relation to each other.
U.S.A. (A) U.S.A.—
In the American Constitution, this duty of the Federal Court is accentuated by the fact that the
Constitution is in the nature of a treaty between the component units and that the Constitution sets up a
double government and a double allegiance.12
As to its duties as a federal court, the Supreme Court itself has observed:
This court has no more important function than which devolves upon it, the obligation to preserve inviolate the constitutional limitations
upon the exercise of authority, Federal and State, to the end that each may continue to discharge harmoniously with the other, the duties
entrusted to it by the Constitution.13
Article III, section 2(l) of the United States Constitution, thus, empowers the Supreme Court to determine:
all controversies to which the United States shall be a party; to controversies between two or more States..........
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American Supreme Court exercises power of judicial review over State Acts since it is an important
counterweight to the threat of chaos that never disappears in a political system in which two (or more)
levels of government simultaneously enact policies on many of the same subject. Some institution—in our
system, it is usually the Supreme Court—must act to settle disputes when conflicting policies are
generated by different levels of government. The court’s role in this respect is that of “an umpire of the
federal system”.14
As originally provided in Article III, Section 2 of the Constitution, suits could be brought before Federal
Courts against a State by citizens of other States or by citizens of foreign countries. But, as per demand by
various States, an amendment was made to the Constitution (Eleventh Amendment) which expressly
forbids Federal Courts from taking cognizance of any suit brought against a State by a citizen of another
State or by citizen of a foreign State. Such suits can be brought in the courts of the State concerned as
permitted by law.
The Constitution does not insist that Federal Courts must assume exclusive jurisdiction in all cases. The
Constitution gives the Federal Courts no exclusive jurisdiction whatsoever. Congress is free to distribute
jurisdiction over them as it pleases and may completely divest Federal Courts of jurisdiction in some
instances. At present, the Federal Courts have exclusive jurisdiction over: (a) all cases involving crimes
against laws of the United States; (b) all suits for penalties brought under laws of the United States, all
suits under admiralty and maritime jurisdiction or under patent or copyright laws; (c) all bankruptcy
proceedings; (d) all civil actions in which United States or State is a party except between a State and its
own citizens; and (e) all suits and proceedings brought against ambassadors, others possessing diplomatic
immunity and foreign consuls.
The court is not an advisory body and will not give advisory opinion. Hence the Congress and President
cannot ask the justices of the Supreme Court to express themselves on the constitutionality of a proposed
legislation. It will render its decision only as and when a real dispute is presented to it for decision. There
must be a party of interest to challenge the constitutionality of the law.
The Congress has no power to assign the judiciary any duty other than judicial.15
Australia (B) Australia.—
The Australian High Court acts as a federal court like the American Supreme Court, through its original
jurisdiction under section 75 of the Australian Constitution Act to decide cases as between the
Commonwealth and the States, and as between the State inter se (see under Article 131, post). But it is not
a final court, inasmuch as appeal lies to the Privy Council.
Canada (C) Canada.—
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Having no original jurisdiction, the Canadian Supreme Court lacks any direct power to act as an “arbiter”
in the federal system, and, its position as an appellate court was eclipsed by the Privy Council, until, 1949,
when appeal to the Privy Council was abolished.
After the final withdrawal, in 1982, of all British control over the Canadian constitutional system, it may
be naturally expected that it will gain in importance and will have to act as a federal court through the
indirect means of reviewing the constitutionality of Dominion and Provincial laws, in appeal.16
India (D) India.—
Though our federation is not in the nature of a treaty or compact between the component units, there is
nevertheless, a division of legislative as well as administrative powers between the Union and the States.
Article 131 of our Constitution, therefore, vests the Supreme Court with original and exclusive
jurisdiction to determine justiciable disputes between the Union and the States or between the States inter
se. This provision, however, differs from that of Article III, section 2(l) of the United States Constitution
as well as of section 75 of the Australian Constitution in this that our Supreme Court shall have no
original jurisdiction to decide disputes between residents of different States or between a State and a
resident of another State.17 Such disputes would, under our Constitution, come up to the Supreme Court
only in appeal, if the provisions relating thereto are satisfied.
Of course, in the case of disputes between the union and the States, the province of our Supreme Court
may differ considerably from that of the Supreme Court of the United States, owing to the difference in
the very nature of the federation in the two countries. The absence in our Constitution of the theories of
“State right”, “dual government”, “divided sovereignty” on the one hand, and the vesting in the union of
residuary powers and the power of issuing administrative directions and overriding powers in
emergencies, on the other, would no doubt tend to minimise litigation between the Union and the States in
our country.18 Nevertheless, as the experience under the Government of India Act, 1935, has shown, the
very elaborateness of the legislative lists and the attempt at exhaustiveness, will lead to the growth of
justiciable doubts and disputes as to legislative powers, at least so long as the principles of interpretation
applied by the Supreme Court are not well settled. Though our Constitution has strengthened the union
more than in any other federal country, nevertheless, it is not a unitary system that has been set up by the
Constitution. Hence, it is the interpretation of the Supreme Court in particular cases that will hold the
centripetal and centrifugal forces in the balance and save the original distribution of powers from any
aggressive encroachment on the part of the Union. As SIR ALLADI KRISHNASWAMI AIYAR19
observed:
The future evolution of the Indian Constitution will thus depend to a large extent upon the work of the Supreme Court and the direction
given to it by that court. From time-to-time, in the interpretation of the Constitution, the Supreme Court will be confronted with
apparently contradictory forces at work in the society for the time being. While its function may be one of interpreting the Constitution
as contained in the instrument of Government, it cannot in the discharge of its duties afford to ignore the social, economic and political
tendencies of the times which furnish the necessary background. It has to keep the poise between the seemingly contradictory forces. In
the process of the interpretation of the Constitution, on certain occasions, it may appear to strengthen the union at the expense of the
units and at another time it may appear to champion the cause of provincial autonomy and regionalism.20
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In the first decision21 of the Supreme Court under Article 131, the court was not only inclined in favour of
the union but undermined the development of federalism unless the principle of union pre-eminence,
enunciated therein, is checked by some future pronouncement. The conclusion arrived at by the majority
of the Supreme Court in that case,21 in short, is that though the power to “acquire” property belongs
concurrently to the Union and the States, Entry 42, List III of the 7th Schedule gives to the Union the
power to acquire lands vested in a State though a State cannot draw a similar power from the same Entry
to acquire property belonging to the Union. The reasoning on which this conclusion was arrived at by the
majority was an assumption of pre-eminence of the Union vis-a-vis the States, underlying our
Constitution. Thus, it was observed:
it would be difficult to hold that the Parliament which is competent to destroy a State is on account of some assumption as to absolute
sovereignty of the State incompetent effectively to acquire by legislation designed for that purpose the property owned by the State for
Government purpose.22
In that case, the State of West Bengal challenged the competence of Parliament to enact section 47 of the
Coal Bearing Areas (Acquisition and Development) Act, 1957 which sought to empower the Centre to
acquire the State-owned coal bearing lands and rights over them. The main argument invoked against the
Act was that the States had within their allotted field “full attributes of sovereignty” and, therefore,
exercise of authority by the Union agencies which trenches upon that sovereignty is void.
The court held the Act as valid by a majority. Referring to the historical processes, the court pointed out
that during the period India’s administration was highly centralised and the provinces were never treated
as sovereign. Under the present Constitution, Sovereignty vests in the people of India. Examining the
structure of the Constitution, the court declared that Parliament was not incompetent on account of “some
assumption to absolute sovereignty of the States” to acquire property by legislation for governmental
purposes.
The court also refused to apply the general doctrine of “immunity of instrumentalities.” The Supreme
Court specifically rejected the American doctrine of immunity of instrumentalities. Chief Justice Shah
speaking for the majority ruled that the Privy Council had rejected the doctrine and held it inapplicable to
the Canadian and Australian Constitutions. The doctrine was equally inapplicable to India. Referring to
entries in List I (22, 23, 24, 26, 27, 30, 32, 52, 53, 54, 56 and 57) under which Parliament can directly
legislate in respect of property in the State, the court held that to deny to Parliament while granting the
extensive powers of legislation in respect of property situated within a State and even of the State would
render the constitutional machinery practically unworkable. In the ultimate analysis, the matter is of
legislative competence. The power under Entry 42, List III which may be exercised by Parliament in
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respect of all entries in the Central List is not incapable of being exercised in respect of property of the
State as there is no constitutional interdict against it. Power to legislate for the regulation and development
of mines and minerals under the control of the Union (List I, Entry 54) would by necessary implication
include the power to acquire mines and minerals.
Justice Subba Rao, however, dissented from the majority view and enunciated a broader doctrine of
immunity. He insisted that the Indian Constitution accepts the federal concept and distributes the
sovereign powers between the co-ordinate constitutional entities, namely, the Union and States. This
concept implies that one cannot encroach upon the governmental functions or instrumentalities of the
other, unless the Constitution expressly provides for such interference and in the instant case “there is no
provision which enables one until to take away the property of another except by agreement”. But this
agreement did not prevail with the majority.
According to learned author M.P. JAIN,23
this is a momentous pronouncement by the Supreme Court and strengthens the viability of Indian federalism. The doctrine of State right
stands discredited even in the older federation, where the State has enjoyed a much greater autonomy before the creation of the
federation than the State rights in India. The State rights, if accepted, would have weakened the Central Government as the State in
future could have claimed more and more rights and immunities as against Central Government and thus weakened the Constitutional
fabric.
The extension of doctrine of immunity of instrumentalities beyond what is envisaged by the Constitution was rightly rejected by the
court as the doctrine is running into heavy weather even in the country of its origin and has been rejected by other countries like Canada
and Australia. The Indian Constitution seeks to provide a federal structure with a strong bias towards Centre. This position should not
be corroded by any process – whether of judicial interpretation or otherwise.
The Author, in C6, vol A, p 42, has pleaded for a reconsideration of the majority view in the cited case,
24because if such a general pre-eminence of the Union is established, there would be an end of federalism
in India, even though the same court has observed in various other cases that the political system
introduced by the Constitution of India was a federal system. In the Author’s view, there was no such
general theory of pre-eminence of the Union underlying our Constitution. Wherever the Union’s action
should prevail is provided for specifically by the Constitution but outside those specific provisions, the
autonomy of the States, according to the federal distribution of powers cannot be brushed aside by
interpreting the explicit provisions of the Constitution by any a priori consideration of a pre-eminence of
the Union as against the States in all matters. So far as the power to acquire property is concerned, the
relevant provisions of the Constitution do not admit of such pre-eminence of the Union, as the minority
judgment of SUBBA RAO, J. has clearly explained. It is respectfully submitted by the Author that a
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question relating to the federal distribution of powers, when raised by a State, should be decided by the
courts on the same balance as is used when the question is raised by an individual.25
According to eminent jurist H.M. SEERVAI: “the discussion on federalism and sovereignty in the
majority judgment26 is very unsatisfactory, and instead of considering it in detail, it would lead to a
briefer discussion of Federalism of the so called “unitary” features are considered independently and
shown to be present in admittedly federal Constitution.”27 In Raja Ram Pal v Hon’ble Speaker, Lok
Sabha,28 it was observed that “nature of Indian federation is a loose federal structure, in that; India is an
indestructible Union of destructible units”. It was observed that Parliament can even make laws affecting
the very existence of a State legislature. Another Constitution Bench held that though the federal principle
is dominant in our Constitution and that the principle is a basic feature, it is also equally true that
federalism under our Constitution leans in favour of a strong Centre, a feature that militates against the
concept of strong federalism. It was observed that when it comes to exercising powers, they are weighed
heavily in favour of the Centre, so much so that various descriptions have been used to describe India
such as a pseudo-federation or quasifederation in an amphibian form.29 It was held in that case that the
concept of direct federalism has been rejected under Indian Constitution.30 Wherein it was observed that
for historical reasons, though we have a federal Constitution, it is more biased in favour of Centre. In the
dissenting judgment, learned Judge (SINHA, J.) recognised “a general theory of paramountcy or
superiority of the Union”.
II. As a Court of Appeal U.S.A (A) U.S.A.—
Though the Constitution [Art III. section 1(1)] vests “the judicial power of the United States” in the
Supreme Court, the appellate jurisdiction of the court is made entirely subject to “such regulations as the
Congress shall make” [Article III, section 2(2)], and Congress may bar appeal to the Supreme Court even
where the constitutionality of a statute is involved.
The jurisdiction of the Supreme Court is both original and appellate. The original jurisdiction, however, is
extremely limited and an average of only four or five cases comes before the court each year for original
trial. The Constitution opens the court to such trials when –(1) a foreign Ambassador, minister or Consul
or (2) one of the States is a party. The jurisdiction of the Supreme Court is the grant of the Constitution
itself and the Supreme Court has decided in the famous Marbury v Madison,31 that the Congress can
neither increase nor reduce the jurisdiction of the court in this respect. Legislative action, however, has
granted concurrent trial power to the District Courts in some of these cases. Under the present judicial
code, the following original cases must be brought before the Supreme Court – (1) cases against foreign
ambassadors and ministers, and (2) cases between one of the States and the United States, a foreign State
or another one of the States.
In all other cases, the Supreme Court has appellate jurisdiction both as to law and facts
with such exception and under such regulation as the Congress shall make.
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In accordance with this provision, Congress has defined in detail the appellate jurisdiction of the Supreme
Court. At present, cases come to it from State Courts, Federal Courts. The expectation is that the Supreme
Court should not devote its time
upon mere settlement of law suits in the manner of an ordinary law court, but rather upon constitutional interpretation and policy,
especially in economic and social fields, appeals lacking in this higher interest are likely to encounter no very warm reception.
In all cases, the Supreme Court has appellate jurisdiction both as to law and facts “with such exception
and under such regulation as Congress shall make”. In accordance with this provision, Congress has
defined in detail the appellate jurisdiction of the Supreme Court. At present, cases come to it from State
Courts, Federal Courts of Appeal and in a few cases Federal District Courts. The expectation is that the
Supreme Court should not devote its time
upon mere settlement of law suits in the name of an ordinary law court, but rather upon constitutional interpretation and policy
especially in economic and social fields appeals lacking in this higher interest are likely to encounter no very warm reception.
There are thus two general sources from which cases may reach the Supreme Court on appeal – (a) Cases
of the highest State Courts where a federal question is presented, namely, when the State Court has held
that a federal law, treaty or executive action violates the Constitution of the United States or has held that
the law enacted by the State or has held that the law enacted by the State or the State action is valid under
the Constitution and when that finding of the State Court is challenged. The power of the Supreme Court
to review laws is based upon the constitutional provision that the laws made by Congress and treaties
concluded that the laws made by the Congress and treaties concluded by the Federal Government are
supreme law of the land and consequently supersede the Constitution and the law enacted by the State
Legislature. Some of the court’s greatest decisions have been rendered in such cases, where an appeal has
been taken to it when the State Court has denied a claim based upon an alleged federal right; (a) Cases
from the lower Federal Court chiefly from Court of Appeal. But cases coming to the Supreme Court on
this count are insignificant, only one in thirty cases, since final determination had been vested by law in
these courts in many types of cases between private individuals. But when a litigant claims that a
constitutional right has been denied, it is case for the Supreme Court.
The Supreme Court may require a Court of Appeal to transmit a case to it, either before or after the
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decision, when as a petition of a party to the suit, the court concludes that the case is of such significance
as to make decision by the highest court desirable.
A Court of Appeal may also take the initiative of certifying to the Supreme Court questions or
propositions of law involved in a case that it requires instruction from a superior court to enable it to make
a proper decision. The Supreme Court, on such a reference, may merely answer the question or it may
require that the whole case be submitted to it for final decision.
Next below the Supreme Court are Federal Courts of Appeal known before 1948 as the Circuit Courts of
Appeal. The Federal Courts of Appeal have essentially appellate jurisdiction, that is, they hear and
determine only cases appealed from the lower courts and their decisions are final in most cases except
where the law provides for a direct review by the Supreme Court. This relieves the Supreme Court of all
but the most important cases and enables to dispatch its business more promptly. Federal Courts of
Appeal also review and enforce orders of the Legislative Court and quasi-judicial Boards and
Commissions. The Supreme Court may call upon from a Federal Court any case on a writ of certiorari
involving an important constitutional legal point.
Though the appellate jurisdiction of the Supreme Court is final, because it is the highest tribunal of the
land, its appellate jurisdiction is not as comprehensive as that of the House of Lords in the U.K. The
reason is that legislation by Congress has limited its scope in various directions, e.g.,
(i) Appeal lies as of right from State Courts only if a constitutional question is involved.
(ii) From a federal court of Appeal lies as of right to the Supreme Court only if an Act of Congress
has been declared unconstitutional, or a State statute has been declared to be repugnant to the
federal Constitution.
These limitations will be more fully discussed under Article 132, post.
The American Supreme Court has, thus, no appellate jurisdiction in the realm of private law.
At present, appeal cases come to the Supreme Court from State Courts, Federal Courts and in a few
instances from Federal District Courts. The expectation is that the Supreme Court should not devote its
time “upon mere settlement of law suits in the manner of an ordinary law court, but rather upon
constitutional interpretation and policy, especially in economic and social fields, appeals lacking in this
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higher interest are likely to encounter no very warm reception.32
In few instances an appeal may lie directly to the Supreme Court from a decision of Federal District
Court. If a Federal District Court holds a federal law as unconstitutional in a case where the United States
is a party or in a case between two parties in which United States has been made a “party by intervention”.
The Judiciary Act of 1937 permits such direct appeals to the Supreme Court.
Under section 73 of the Constitution Act, the Australian High Court is a general court of appeal from any
court exercising federal jurisdiction as well as the Supreme Court of any State, “subject to such
regulations as the Parliament prescribes”. In exercise of this power, the Commonwealth Parliament has
prescribed that in cases other than those affecting status of persons appeal shall lie as of right to the High
Court only if it involves the value of at least £300.33
Appeal to the High Court is also barred from the Court of Claims or the Conciliation and Arbitration
Courts.
The Canadian Supreme Court is a general court of appeal for Canada, and, under the Supreme Court Act,
1962. In civil cases, appeals may be brought from any judgment of the highest court of final resort in a
Province only when leave to appeal has been sought and secured either from the highest court of final
resort in that Province or from the Supreme Court of Canada itself. In the latter case, leave may be granted
even when such leave has been refused by any other court, when, with respect to the particular case
sought to be appealed, the Supreme Court is of opinion that any question involved therein is, by
importance of its public importance or the importance of any issue of law involved in such question, one
that ought to be decided by the Supreme Court. The earlier automatic right of appeal to the Supreme Court
in civil cases where the sum claimed was in excess of $10,000 was repealed in January 1975.
In criminal cases, the appellate jurisdiction is conferred by the relevant provision of the Criminal
Procedure Code. Aside from cases in which a person stands sentenced to death or in jeopardy of such a
sentence, persons convicted of indictable offences may appeal to the Supreme Court only on question of
law on which a Judge of the Provincial Court of Appeal dissents or on a question of law with leave of
Supreme Court.34
India (D) India.—
Like the House of Lords in England, the Supreme Court of India is the final appellate tribunal of the land,
and in some respects, the jurisdiction of the Supreme Court is even wider than that of the House of Lords.
For, while civil appeals from the decisions of the Court of Appeal now lie to the House of Lords only by
leave of the Court of Appeal or of the House of Lords itself,35 and the same position has been brought
about in India as regards civil appeals by amending Article 133 in 1972.36
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Before 1972, there was a right of appeal to the Supreme Court from a decision of a High Court, if the
subject matter involved in the disputed valued at Rs.20,000/- or more. This has now been changed. The
change has now been effected because the valuation list is not a true yardstick for the right to appeal to the
Supreme Court. On the one hand, it is not necessary that the important question of law must be involved
in every case valuing Rs.20,000/- or more. On the other hand, an important question of law in any case
whatsoever may be the value of the subject matter involved. Now an appeal may go to the Supreme Court
in any case involving an important question of law even though the value of the subject matter involved
may not be large. Article 133 discards the distinction between appellate and original jurisdiction of the
High Court. Article 133 is deliberately worded which are as wide as language can make them. It includes
all judgments, decree or order passed in exercise of appellate or ordinary original civil jurisdiction.
No appeal in a civil matter lies to the Supreme Court as a matter of right. An appeal can lie only on a
certificate of the High Court which is issued when the two conditions are satisfied. Under Article 133(2),
any party appealing to the Supreme Court under Article 133(1) may urge as a ground that a substantial
question of law as to the interpretation of the Constitution has been wrongly decided. Under Article
133(3) unless Parliament provides otherwise, no appeal lies to the Supreme Court from the judgment,
decree or final order of a single High Court judge. For the purpose of Article 133(1), the proper test to
determine whether a question of law is substantial or not is whether it is of general public importance or
whether it directly and substantially affects the right of parties, and if so, whether it is an open question, in
the sense that it is not finally settled by the highest court or is not free from difficulty or calls for
discussion of alternate views.
A question of law which is fairly arguable or when there is room for difference of opinion on it or when
the court thinks it necessary to deal with that question at some length and discuss alternate views would be
regarded as a substantial question of law. But it would not be so if the question is practically covered by
the decision of the highest court of the general principles to be applied in determining the question as well
settled and the only question is that applying these principles to the particular facts of the case.37 The
Supreme Court emphasized that grant for certificate, the question, however important and substantial
should also be of such pervasive import and deep significance that in the High Court’s judgment, it
imperatively needs to be settled at the national level by the highest court. Otherwise, the Apex Court will
be flooded with cases of lesser magnitude.38 The High Court must specify in the certificate that substantial
question of law requiring determination by the Supreme Court and the reason in support of issuance of the
certificate.
A certificate on a substantial question of law by the High Court is not bad because it does not specify the
substantial question of law to be decided by the Supreme Court. The court can hear the appeal if it is
satisfied that the appeal involves substantial question of law of great importance.39
On the other hand, as regards criminal appeals an appeal lies to the House of Lords only if the High Court
certifies that the decision of the Court of Criminal Appeal involves a point of law of general public
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importance and that it is desirable in the public interest that a further appeal should be brought and the
House of Lords grants leave.40 But in cases specified in clauses (a) and (b) of Article 134(1) of our
Constitution (death sentence), an appeal shall lie to the Supreme Court as of right.
Prior to the Abolition of the Privy Council Jurisdiction Act, 1949 (see under Article 395, post), the Privy
Council was the final Court of Appeal for India and that jurisdiction of the Privy Council has devolved
upon the Supreme Court through the Federal Court, but the appellate jurisdiction of the Supreme Court is
larger than that of the Privy Council or the Federal Court inasmuch as the power of all High Courts to
issue the writs under Article 226 is a new jurisdiction and appeal lies to the Supreme Court from final
decisions of the High Courts under Article 226. Further, the right of the Supreme Court to entertain
appeal, by special leave, in any cause or matter determined by any court or tribunal in India save military
tribunals is unlimited. [Article 136]
Needless to point out, the appellate jurisdiction of our Supreme Court is much larger than that of the
Supreme Court of the United States which is concerned only with cases arising out of federal jurisdiction,
or relating to the validity of laws.
M.C. SETALVAD said in his speech at the inauguration ceremony of the Supreme Court that the writ of
the court “will run over territory extending to over two million square miles inhabited by a population of
about 300 million. .......It can truly be said that the jurisdiction and powers of this court in their nature and
extent are wider than those exercised by the High Court of any country in the Commonwealth, or by the
Supreme Court of the USA........”
Supreme Court has shown willingness to entertain appeals not only from ordinary courts, but also from
Industrial Courts, Election Tribunals and other quasi-judicial bodies.
III. As Guardian of the Constitution
As against unconstitutional acts of the Executive, the jurisdiction of the courts is nearly the same under all
constitutional systems. But not so is the control of the Judiciary over the Legislature.41
The institutions of Government created by the Constitution have to function in accordance with it. Any
exercise of power outside the Constitution is unconstitutional. The Government being the creature of
Constitution, Constitution delimits the power of Government organs and any exercise of power beyond
the constitutional parameters becomes unauthorised. Therefore, any law made by Legislature, any action
taken by the executive, if inconsistent with the Constitution, can be declared unconstitutional by the court.
The Constitution is an organic living document. Its outlook and expression as perceived and expressed by
the interpreters of the Constitution must be dynamic and keep pace with changing times. Though the
basics and fundamentals of the Constitution remain unalterable, the interpretation of the flexible
provisions of the Constitution can be accompanied by dynamism and lean in case of conflict, in favour of
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the weaker or one who is in more need.
The courts are regarded as interpreters as well as the guardian of the Constitution. It is for the court to
scrutinise every act of the Government with a view to ensure that it is in conformity with the Constitution.
If a law passed by the Legislature or an act done by the executive is inconsistent with a constitutional
provision, the court will say so and declare the law or the act unconstitutional and void.
It is obligatory on the part of the judiciary to see that the Constitution is not violated by any governmental
organ and hence the judiciary is called the guardian and protector of the Constitution. Judicial review has
come to be regarded as an integral part of the written Constitution. The courts then play a much more
creative role under a written Constitution than they do under an unwritten Constitution. In a written
Constitution, courts not only interpret ordinary laws and do justice between man and man, they also give
meaning to the cold letter of Constitution and this may, at times, virtually affect the constitutional process
in the country.
India has a unified judicial system with the Supreme Court standing at the apex, though the Supreme
Court does not exercise administrative control over the High Courts. There are High Courts below the
Supreme Court and under each High Court there exists a system of subordinate courts. The Supreme
Court thus enjoys the topmost position in the judicial hierarchy of the country. It is the supreme interpreter
of the Constitution and the guardian of peoples’ Fundamental Rights. It is the ultimate court of appeal in
all civil and criminal matters and the final interpreter of the law of the land and thus helps in maintaining
uniformity of law throughout the country.
A It is sometimes supposed that the power of the courts to pronounce upon the validity of laws enacted by
the Legislature on the ground of contravention of the Constitution depends upon the Constitution being
written. But this is not necessarily true, for there have been written Constitutions which vest in the
Legislature the power to determine its own limits. Thus—
Switzerland
(A) Switzerland.—The Swiss Constitution empowers the federal Supreme Court to declare an Act of the
Cantonal Legislature to be invalid, if repugnant to the provision of the federal Constitution, but the court
is given no such powers as regards laws passed by the Federal Legislature. On the other hand, Article 113
of the Swiss Constitution directs the Federal Tribunal to give effect to the laws passed by the Federal
Assembly, and Article 71 states that “the supreme authority of the Confederation is exercised by the
Federal Assembly”. The result is that the Federal Legislature may encroach on cantonal subjects, without
interference from the courts. This is a departure from the federal principle.
In the Swiss Constitution, the power to determine the validity of federal laws is given to the people
themselves. If 30,000 voters or 8 Cantons demand, a federal law must be submitted to the people who
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have the final power to determine whether it shall go into effect or not [Article 89]. Subject to this, the
guardianship of the Constitution is vested in the Federal Executive by Article 102(2) which says:
The Federal Council ensures observance of the Constitution............
The result is that Swiss Supreme Court has no power of judicial review against acts of the federal
Executive or Legislature, on the ground of unconstitutionality.
France (B) Fifth French Republic.—
In France, there is no provision for determining the constitutionality of laws by the courts. Substantial
changes have been introduced by the Constitution of 1958 to secure the constitutionality of laws, without
introducing judicial review.
(a) Certain laws have been characterized by the Constitution as “organic laws”, and legislation with
respect to these subjects can be made only after a scrutiny of their constitutionality by the
Constitutional Council, Article 46 says:
The laws that the Constitution characterizes as organic shall be passed and amended under the following
conditions:
Such bill, whether initiated by the Government or a Member of Parliament, shall be submitted to the vote of the
notified Chamber of Parliament only at the expiration of a period of fifteen days following its introduction.
Such bill shall be passed in the two Chambers successively, with an identical text. Lacking an agreement between
the two Chambers, the text may be adopted by the National Assembly on final reading only by an absolute
majority of its members.
The organic laws relating to the Senate must be passed by an absolute majority of the members in both the
Chambers.
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The organic laws may be promulgated only after a declaration by the Constitutional Council on their
constitutionality.
(b) Laws other than “organic laws” may be submitted to the Constitutional Council, before their
promulgation by the President of the Republic, or the Premier or the President of either Chamber
of Parliament (Article 61). The Constitutional Council must give its ruling on the constitutionality
of laws within the time limited by the Constitution (Article 61).
The declaration of unconstitutionality by the Constitutional Council is final. Article 62 says:
A provision declared unconstitutional may not be promulgated or implemented.
The decisions of the Constitutional Council are not subject to appeal to any jurisdiction whatsoever. They must be
recognized by all administrative and judicial authorities.
The Constitutional Council will consist of nine members, for a term of nine years, 1/3 of the membership
being renewed every three years. Three of its members shall be appointed by the President of the
Republic, and three each by the Presidents of the two Chambers of Parliament. In addition to these nine
members, the former Presidents of the Republic shall be ex officio members for the life of the
Constitutional Council. The President of the Council shall be appointed by the President of the Republic.
“By and large” French Courts and judges compare favourably in capacity, integrity independence and
impartiality with those of any other country. Article 64 of the 1958 Constitution specifies that judges shall
be irremovable. The Constitution of the 4th Republic shall be irremovable. The Constitution of the 4th
Republic has made a similar provision. The Constitution of 1948 declared irremovability incompatible
with the responsibility of officials in the Republican system of Government and Judiciary in France had
always been considered as a public service. The Third Republic’s Constitutional law did not even mention
judiciary. According to the Constitution of 1958, judges can be removed from office on charges of gross
misconduct only and that too on the recommendation of Higher Council of Judiciary which has been
entrusted with constitutional duty of acting as disciplinary council of the judges. The President consults
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the High Council of Judiciary on question of pardon under conditions determined by an organic law.
The law in France today consists primarily of the Napoleonic Code as amended, revised and extended at
intervals to meet the new conditions and needs of the country especially those flowing from increasing
industrialisation and other economic changes. This brings in four outstanding characteristics of French
Law. France has, in the first place, a uniform system of law throughout the country. There is unity and
symmetry in it and the law embodied in the Codes is clear and easily available. In the second place, it is a
written law and as such essentially differs from the law of English-speaking countries. There is no doubt,
much of the written law in England and America, but in both countries as the common law is unwritten
and uncodified. In France, there is virtually no law that is not codified and cannot be read in the books.
In the third place, French Law is enacted or statutory, although, at many points, it may be rooted in
custom. In England and the United States, the law is being constantly developed, expanded and even
altered by judicial decisions and both these countries have built up great bodies of judge-made law. It is
true that according to the theory, the Anglo-American jurisprudence, the judges cannot make law. They
only interpret and apply it, but they do in fact make changes and often far-reaching changes. The judicial
decision rendered sets a precedent and there is traditional respect with the courts to a doctrine of “stare
decisis”, that is, the court will always be guided by a previous decision unless there is compelling reason
for reversal. The result is that
one judicial decision advances little upon another and soon your after year until there exists a wide gulf between the law as it is and the
law as it was. Simple words and phrases renew new shades of meaning and ultimately acquire new meaning altogether.
In this way, the doctrine of stare decisis gives a definite drift and direction. In France, there is no such
doctrine. The judges decide every case independent on its merits in conformity with the statutory law
aiming at justices in the particular case and not in conformity with the precedent. No court is under an
obligation to be guided by its own previous decisions or by the decisions of a higher court. Precedents are
cited in French Courts, but no great reliance is placed upon them and the judges “are free to disregard
even the weightiest precedent, if they feel so inclined”.
Finally, the distinction is made in France between the ordinary law and administrative law and
consequently there are two separate systems of courts, ordinary tribunals and administrative tribunals. In
case of conflict on the jurisdiction of courts, there is a Tribunal of Conflicts which decides whether the
case falls within the competence of one set of court or the other.
Judicial review is thus, unknown in France but the position of the extrajudicial body to deal with
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constitutionality of laws under the Fifth Constitution, namely, the Constitutional Council, is in some
respects better than that of its predecessor, i.e., the Constitutional Committee under the Fourth Republic.
Of course, private citizens cannot challenge the constitutionality of a law even now, and there is no
provision for declaring a law as unconstitutional after it has been promulgated. The function of the
Constitutional Council, as that of its predecessor, is to exercise a power of veto over laws passed but not
yet promulgated.
No law can be promulgated until they are declared as constitutional by the Constitutional Council. But
while its jurisdiction over “organic” laws is compulsory, its jurisdiction over laws other than organic
depends upon a reference of such law to the Council by the President of the Republic or the Premier or the
President of either Chamber of Parliament. The declaration of the council as to constitutionality is final.
“organic” laws are those which are characterised by the Constitution as such. In this respect, the
Constitution of the Fifth Republic has improved upon that of the Fourth by making a reference to the
Constitutional Council obligatory before promulgation of such laws. (Article 46)
Another respect in which the new Constitution is in advance of the preceding one is that while under the
Fourth Constitution, laws affecting the matters included in the Preamble were excluded from the
jurisdiction of the Constitutional Committee, so that there was no machinery for safeguarding the
individual rights against offending legislation; the new Constitution makes no exception in this behalf.
B. on the other hand, many written Constitutions; which follow the theory of constitutional supremacy,
have expressly declared in the Constitution itself that—
the Constitution shall be the supreme law of the land.42
Some Constitutions even expressly enjoin the courts to declare upon the constitutionality of laws.
In fact, the question whether the court shall act as the guardian of the Constitution and sit upon the
constitutionality of laws, depends not upon the written or unwritten character of the Constitution, but upon
the question whether the Constitution is founded on the theory of legislative or parliamentary supremacy
or of the supremacy of the Constitution as a fundamental law by which the powers of the Legislature are
limited. The Judiciary has the undisputed power to interpret and administer the law. So, if there be an
organic and supreme law over the Legislature, the courts will certainly refuse to apply a statute that is
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repugnant to or contravenes that fundamental law.
Nothing resembling habeas corpus exists in France. It was tried to be remedied in the Constitution of
1946, which was rejected at the polls. It provided that “No one may be detained unless within forty-eight
hours he has appeared before a Judge called upon to rule upon the legality of his arrest and unless the
judge confirms the detention each month by motivated decision”. The Constitution of the Fourth Republic
did not contain any such provision. Article 65 of the 1958 Constitution briefly provided that no person
may be detained arbitrarily. It is further provided that judicial authority, “guardian of liberty shall assure
respect for this principle in conditions to be determined by law”. This may be described as a provision for
a writ of habeas corpus, but there is no express provision thereof.
U.S.A. (A) U.S.A.—
In the United States, the Constitution itself does not specifically vest in the Judiciary any power to declare
laws enacted its power to determine: by the Legislature to be unconstitutional. But this power has been
deduced by the Supreme Court from its power to determine:
all cases arising under the Constitutions” [Article III, section 2(1)], read with Article vI(2) which says: “This Constitution..... shall be
the supreme law of the land.
The argument can be best expressed only in the words of the fathers of the Constitution themselves. Thus
wrote HAMILTON:43
“The interpretation of the laws is the proper and peculiar province of the courts— the Constitution ought to be preferred to the statute,
the intention of the people to the intention of their agents” [i.e., of the Legislature].
Again,
A limited Constitution..…….. one which contains certain specified exceptions to the legislative authority; such, for instance, as that it
shall pass on bills of attainder, no ex post facto laws and the like. Limitations of this kind can be preserved in practice in no other way
than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the
Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.44
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Or, in the words of CHIEF JUSTICE MARSHALL:45
‘The powers of the Legislature are defined and limited; and that these limits may not be mistaken or forgotten, the Constitution is
written. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary
legislative acts, and, like other acts, is alterable when the Legislature shall please to alter it;.……. if the latter part be true, then written
Constitutions are absurd attempts on the part of the people to limit a power, in its own nature illimitable.
It is emphatically the province and duty of the judicial department to say what the law is...…… if, then, courts are to regard the
Constitution and the Constitution is superior to any ordinary act of the Legislature, the Constitution and not such ordinary act must
govern the case to which they both apply.45
But while the power to pronounce upon the unconstitutionality of a statute was originally asserted as
incidental to the judicial power—since the case of Marbury v Madison, 45 it has come to be considered a
duty of every Judge in the United States to treat as void any enactment which violates the Constitution.
The courts cannot properly decline to exercise this power.46
The argument of Chief Justice Marshall in Marbury v Madison,47 was that the Constitution is the supreme
law of the land and justices are bound to give effect to it. When the court is called upon to give effect to a
statute passed by the Congress which is clearly in conflict with Supreme Law of the Constitution, it must
give preference to the latter, otherwise the declaration of the supremacy of the Constitution will have no
meaning. The implication of Chief Justice Marshall’s decision may be summarised as under:- (1) that the
Constitution is a written document that clearly defines and limits the powers of Government; (2) that the
Constitution is a fundamental law and is superior to the ordinary laws passed by Congress; (3) that the Act
of Congress which is contrary to and in violation of the fundamental law is void and cannot bind the
courts; (4) that the judicial power conferred by the Constitution together with the oath to uphold
Constitution which the Justices take on the assumption of office, require that the courts should declare,
when they believe that the Acts of Congress are in violation of the Constitution.
Since Marshall’s time, the Supreme Court has emphasised repeatedly that it is not concerned with the policy, wisdom or expediency of
legislation, but only with constitutionality. In its own words, “it neither approves nor condemns any legislative policy. Its delicate and
difficult office is to ascertain and declare whether the legislation is in accordance with or in contravention of the provisions of the
Constitution and having done that, its duty ends.” In another case, the court also held: “Even we should consider the act unwise and
unprejudicial to both public and private interest if it be fairly within the delegated power, our obligation is to sustain it”.
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The radical application of the above reasoning has, in the United States, led to the establishment of the
doctrine of Judicial Supremacy. The doctrine has been thus expressed by WILLOUGHBY:48
the fundamental principle of American constitutional jurisprudence is that laws and not men shall govern.48
This means that no act of the Government or of any official is valid unless it is supported by some law and
no law is valid in the United States which is not recognised as such by the courts. And no act either of the
Executive or of the Legislature is upheld by the courts unless it is in conformity with or warranted by the
provisions of the Constitution from which the Executive or the Legislature derives its powers.49
Of course, the power to invalidate laws has not been so frequently used50 by the Supreme Court of the
United States as may be supposed. Nevertheless, it is by a radical application of this doctrine combined
with that of “due process” that the American Supreme Court has come to be “the balance wheel” of the
Constitution. Under the American Constitution, “everything which may pass under the form of an
enactment is not to be considered the law of the land”, so long as the Supreme Court does not uphold it as
valid, and thus the key to any social and economic progress has been placed at the hands of the Supreme
Court. For:
The Supreme Court has come to examine the validity of laws not only from the standpoint of legislative powers, but also from the
standpoint of its own opinion about the “ideals” of the Constitution, and the reasonableness of laws.51
As stated by the Supreme Court itself,52 this has come to be its most important function:
“.........this court has no more important function than that which devolves upon it, the obligation to preserve inviolate the constitutional
limitations upon the exercise of authority, Federal and State, to the end that each may continue to discharge harmoniously with the
other, the duties entrusted to it by the Constitution.52
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The pre-eminent position of the Supreme Court in the American Constitution is due to this power of
judicial review in its hands. Its subsequent evolution has given the Supreme Court a position in relation to
the Executive and the Legislature which was not envisaged by the fathers of the Constitution. Thus, while
Hamilton53 thought that, “the judiciary is beyond comparison the weakest of the three departments of
power”, to-day it has gained a position of “supremacy’54 inasmuch as it has the last word as to the
constitutionality of the acts of the other two branches of the Government (the question being, of course,
“justiciable’).
The Supreme Court is the most powerful judicial agency in the world. ALEXIS DE TOCQUEVILLE
writing in 1848 observed:
If I were asked where I placed the American aristocracy, I should reply without hesitation that it occupies the judicial bench and bar.
Scarcely any political question arises in the United States that is not resolved sooner or later into a judicial question.
Exactly a century later, PROF. HAROLD LASKI wrote:
The respect in which the Federal Courts, and above all the Supreme Court are held is hardly surpassed by the influence they exert on the
life of United States. What accounts for this great influence and prestige of the Supreme Court is its power to interpret the Constitution.
Justice Frankfurt put it rather bluntly that the “Supreme Court is the Constitution.” When Justices interpret the Constitution, they make
policy decisions and thereby have the final say over the determination of the social and economic issues that confront the country. They
uphold and declare null and void and consequently of no effect the acts of Congress or State Legislature or Executive orders which are
in conflict with the Constitution. By doing so, the Supreme Court becomes the guardian of the Constitutional system of the United
States.
PROF. HENRY J. ABRAHAM defines the term “judicial review” to mean
the power of any court to hold unconstitutional and hence unenforceable any law, any official action based upon it and any illegal action
by any public official that it deems to be in conflict with the basic law in the United States and its Constitution.
Theoretically, any court in the United States can declare a law or an executive action unconstitutional, but
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the Supreme Court is the final arbiter. Actually, however, the Supreme Court will not review every case in
which the questions of constitutionality are raised. It has established maxims or criteria and case coming
before the court must fulfil the set criteria numbering sixteen. Some of these maxims among others are –
(1) Before the court will glance at particular issue or dispute, a definite “case” or “controversy” at law or
in equity between bona fide adversaries under the Constitution must exist involving protection or
enforcement of valuable legal right or the punishment, prevention or redress of wrongs directly
concerning the party or parties bringing the justiciable suit; (2) The party or parties bringing suit must
have a standing; (3) Not only must the complainant in federal court expressly declare that he is invoking
the Constitution of the United States, but a specific live rather than dead constitutional issue citing the
particular provisions on which he relies in that document must be raised by him, since the court will not
entertain generalities; (4) The federal question at issue must be substantial rather than trivial, it must be
the pivotal point of the case and it must be part of the plaintiff’s case rather than a part of his adversary’s
defence.55
There is no direct authority in the Constitution which empowers the Supreme Court to declare the
constitutionality or otherwise of State or Federal Acts. Some writers, however, hold that the framers of the
Constitution did not intend to confer such power at least over Federal Acts upon the Courts of the United
States and exercise of the authority of holding Federal Acts or orders unconstitutional is the usurpation of
power. President Jefferson has unequivocally declared that the “design of the Fathers” was to establish
three independent departments of Government and to give the Judiciary the right to review the acts of the
Congress and the President was not only the violation of the doctrines of Separation of Powers and the
limited Government, but it was also in violation of the intention of the makers of the Constitution.
There are others who consider that judicial review is inherent in the nature of written Constitution. There
are two important provisions of the Constitution, it is maintained, which are indicative of the intentions of
the framers. One is Article VI, section 2 which reads inter alia
This Constitution and the laws of the United States which shall be made in pursuance thereof and all treaties made or which shall be
made under the authority of United States shall be the Supreme Law of the land and judges in every State shall be bound thereby,
anything in the Constitution or laws of any State to the contrary notwithstanding.
The second proviso in Article III, section 2 which says:
The judicial powers shall extend to all cases, in Law and Equity arising under the Constitution, the laws of United States and treaties
made or which shall be made under the authority…..
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Both these provisions are sufficient to fill in the gap which the Constitution failed to expressly provide
for. The thread of the intention of the framers of the Constitution can be connected with what Hamilton
wrote in the “Federalist”. ….. The interpretation of the laws is the proper and peculiar province of the
courts. The Constitution, in fact, must be regarded by the judges as a fundamental law. It must, therefore,
belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the
legislative body. If there should happen to be irreconcilable variance between the two, that which has the
superior obligation and validity ought, of course, to be preferred, in other words, the Constitution ought to
be preferred to the statute, the intention of the people to the intention of their agents. PROF. BEARD
remarks that
there is good reason for thinking that a majority of the prominent members of the Philadelphia Convention “took a similar view of the
federal judicial powers”. In fact, judicial review was already in existence in American States after the break with Britain in 1766. If it
was not expressly provided in the Constitution, it was because the framers believed the power to be clearly enough implied in the
language used in Article III and VI.
Chief Justice Marshall made the issue clear. Whatever may have been the intention of the framers of the
Constitution, the issue was finally decided by Chief Justice Marshall in the famous Marbury v Madison,56
and since then judicial review has become a part of the Constitutional Law, in fact, the very cornerstone.
Chief Justice Marshall, in brief, said that the Constitution is the supreme law of the land and Justices are
bound to give effect to it. When the court is called upon to give effect to a statute passed by the Congress
which is clearly in conflict with the supreme law of the Constitution, it must give preference to the latter;
otherwise, the declaration of supremacy of the Constitution would have no meaning. The implication in
Chief Justice Marshall’s decision may be summarised thus – (1) that the Constitution is a written
document that clearly defines and limits the powers of the Government; (2) that the Constitution is
fundamental law and is superior to the ordinary law passed by the Congress; (3) that the Act of the
Congress which is contrary to and in violation of the fundamental law is void and cannot bind the courts;
and (4) that the judicial power conferred by the Constitution together with the oath to uphold Constitution
which the Justices take on the assumption of office, require that the courts should declare, when they
believe that the Acts of Congress are in violation of the Constitution.
Since Marshall’s decision in 1803, the power of the Supreme Court to declare Acts of Congress invalid
has been resented, evaded and attacked but never overthrown. The principle of judicial review is now
firmly embedded in the American System of Government and Marbury’s case forms the basis of the
important authority exercised by the Supreme Court.
Since Marshall’s time, the Supreme Court has emphasised repeatedly that it is not concerned with the policy, wisdom or expression of
legislation, but only with constitutionality. In its own words, “neither approves nor condemns any legislative policy. Its delicate and
Constitution and having done that, its duty ends”. In another case, the court ruled, “Even should we consider the act unwise and
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unprejudicial in both public and private interest, if it be fairly within the delegated power our obligation is to sustain it”.
Although the final judgment in cases of this kind made by the Supreme Court of the United States,
judicial review is a prerogative of all courts from the highest to the lowest. Even a Justice of Peace may
exercise this authority in proper cases, although his decision would certainly be appealed. When a court
declares a Legislative Act unconstitutional, it means that it cannot be enforced as its inconsistency with
the Constitution deprives it of the character of law. But the courts have no power at their disposal to carry
out their decree. It is for the executive to enforce them and it may be possible for the executive officer to
ignore them and this has actually happened in a few cases, as for example in a famous case to ignore them
and this has actually happened in a few cases in connection with which President Andrew Jackson
wrathfully remarked that “John Marshall has made his decision, now let him enforce it”. Generally,
however, the prestige of the doctrine is so great that a pronouncement of the court is accepted as final
even when the act unconstitutional is a popular one. As BRYCE expressed it, “the Supreme Court is the
living voice of the Constitution” and as such the country obeys both by inclination and habit.57
West Germany (B) West Germany.—
The power to determine the constitutionality of laws belongs to the Federal Constitutional Court. This
court decides questions relating to the interpretation of the “basic law”, in the event of disputes
concerning the rights and duties of the supreme federal organs and it also decides on the compatibility of a
State law with a federal law,—on the application of the federal government, or of a State Government, or
of one-third of the members of the Bundestag [Article 93]. Any court before which the violation of the
basic law is alleged and the decision of the case involves a decision of the constitutional question, is
bound to refer such question to the Federal Constitutional Court. Besides, every citizen can make a
constitutional complaint to the Federal Constitutional Court whenever his basic rights are violated.
(C) Japan.—
Article 98 of the Japanese Constitution declares that no law, contrary to the provisions of the Constitution
shall have any legal validity, and Article 81 says:
The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act.
Japan
Prior to this, the Continental legal system was followed in Japan and there was no scope for judicial
review of laws. But though the Supreme Court has now been vested with unlimited power to annual any
law which is in contravention of any of the provisions of the Constitution which constitutes “the supreme
laws of the nation” and
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“no law, ordinance, imperial rescript or other Act of Government, or part thereof, contrary to the provisions thereof, shall have legal
force or validity.” (Article 98)
This power has not, in fact, been exercised by the Supreme Court to the extent as might have been
expected in view of the fact that the Constitution had also introduced guaranteed “fundamental human
rights” (Article 11), as did the Constitution of India in 1950, and that the responsibility of the Japanese
Supreme Court was, accordingly, not lesser than that of the Supreme Court of India. In July, 1953,
however, the Supreme Court, by a majority of 10 to 4, declared the Cabinet order 325, which was issued
during the Allied occupation, to have become unconstitutional on coming into force of the Constitution
owing to its being contrary to the provisions of Articles 21 and 39 of the Constitution.58
The power of judicial review which the Constitution vests in the Supreme Court makes it the guardian of
the Constitution. It has admirably protected the rights of citizens and has withstood all inroads made by
any authority on the Constitution and independence of the judiciary. The Judicial Committee of the House
of Councilors passed a Resolution in 1949 that under Article 62 of the Constitution, the Diet be
empowered to investigate court decisions and determine on the nature of decisions rendered by court and
discuss the attitude of Judges. The Supreme Court held that the resolution is unconstitutional and declared
that the Diet has no such authority and it was in contravention of the provisions of the Constitution
guaranteeing the independence of Judiciary. (Article 62 of the Constitution of Japan reads: “Each House
may conduct investigation in relation to government, and may demand the presence and testimony of
witnesses and the production of records”.)59 The Constitution ensures the independence of Judges and
ordains that they would dispense justice according to their conscience and shall be bound only by the
Constitution and the laws.
The Constitution explicitly vests in the Supreme Court, the power of judicial review, though it establishes
a unitary system of Government. Article 81 provides that the Supreme Court is the court of last resort with
power to determine the constitutionality of any law, order, regulation or official Act. Here Japan
introduces an American element of institution. But, whereas in the United States, the Supreme Court does
not derive its power of judicial review from the Constitution, the Japanese Supreme Court has
constitutional power to interpret the Constitution and to maintain its sanctity and supremacy.
The Supreme Court of Japan has not so far held with the exception of certain laws passed to implement
Occupation Derivatives, any law, order, regulation or official Act void and unconstitutional, but has
upheld a few as constitutional. In 1959, the Supreme Court declared that stationing of American forces in
Japan did not violate Article 9 of the Constitution (see Surakawa case). It also set the principle that unless
a treaty is
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obviously unconstitutional and void, it falls outside the purview of the power of judicial review granted to the court.
Eire (D) Eire.—
Similarly, Article 34(1)(2) of the Constitution of Eire declares:
The jurisdiction (original) of the High Court shall extend to the question of the validity of any law having regard to the provisions of
this Constitution........
Article 34(4) 4, again, provides:
No law shall be enacted excepting from the appellate jurisdiction of the Supreme Court cases, which involve questions as to the validity
of any law having regard to the provisions of this Constitution.
Article 15, clause (4)2, on the other hand, provides:
Every law enacted by the oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the
extent only of such repugnancy, be invalid.
From these provisions, the Irish Supreme Court has observed:
Constitutions frequently embody, within their framework important principles of policy expressed in general language. In some
Constitutions it is left to the Legislature to interpret the meaning of these principles, but in other types of Constitutions, of which ours is
one, an authority is chosen which is clothed with the power and burdened with the duty of seeing that the Legislature shall not
transgress the limits set upon its powers...... If it be established in any case that the legislature has exceeded its powers it is the duty of
this court to so declare.60
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Australia (E) Australia.—
In Australia, the duty of the courts to declare invalid statutes inconsistent with the Constitution has been
drawn61 from section 55 of the Constitution Act, which says:
This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, Judges and
people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of the State....
As RICH J.,62 observed:
The legislative powers of the Parliament are not plenary, but are restricted to those conferred upon it by the Constitution and are subject
to any limitations imposed by the Constitution. It cannot free itself from such limitations or conditions: only the process provided by
section 128 of the Constitution can do that; nor can it decide for itself whether a purported exercise of a power is valid; and if an
exercise of a power is valid; and if an exercise of a power involves any legal consequences prescribed by the Constitution it cannot
exempt itself from any of those consequences. The question whether an Act of the Federal Parliament is valid, and if so, whether it
involves any and what legal consequences, can be determined only by an exercise of the judicial power 62
Subject to the limited jurisdiction of the Privy Council (see under Article 132, post), the High Court of
Australia (the highest federal court) is the final court of appeal on constitutional questions. Apart from
that, under section 30 of the Judiciary Act, it has original jurisdiction in “all matters arising under the
Constitution or involving its interpretation and sections 40 and 40A of that Act provide for the removal of
constitutional cases from the State Supreme Courts to the High Court.
U.K. (F) England.—
The English Constitution offers the most radical example of parliamentary supremacy. If a law is once on
the Statute Book, it is binding on the courts until it is amended or repealed, and the courts cannot declare
it as void on the ground of being opposed to the unwritten Constitution or on any ground whatsoever;63
strictly speaking, the term “unconstitutional law” is thus a misnomer in England. No doubt, the Judges
interpret the law in England as in America, but in England there is only one law, and that is the law passed
by Parliament.
As MAY observes:
The Constitutions have assigned no limits to the authority of Parliament over all matters and persons within its jurisdiction. A law may
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be unjust and contrary to the principles of sound government. But Parliament is not controlled in its discretion and when it errs, its
errors can be corrected by itself.64
The doctrine of legislative supremacy distinguishes the United Kingdom from those countries in which a
written Constitution imposes limits on the Legislature and ensures the ordinary courts or a Constitutional
Court to decide whether the acts of Legislature are in accordance with the Constitution. In Marbury v
Madison,65 the U.S. Supreme Court held that judicial function vested in the court necessarily carried with
it the task of deciding whether the Act of Congress was or was not in conformity with the Constitution. In
a legal system which accepts judicial review of legislation, legislation may be held invalid on a variety of
grounds, for example, because it conflicts with the separation of powers which is a feature of the
Constitution.66 By contrast, in the United Kingdom, the legislative supremacy of Parliament appears to be
the fundamental rule of Constitutional law and this supremacy includes the power to legislate on
constitutional matters. In so far as constitutional rules contained in earlier Acts are concerned, there seems
to be no Act which Parliament could not repeal or amend by passing a new Act. The Bill of Rights could
in law be repealed or amended by an ordinary Act of Parliament. This was done in the Defamation Act,
1996 section 13 which amended Article 9 of the Bill of Rights regarding freedom of speech in
Parliament.67
India (G) India.—
Coming now to our own Constitution,—it is true, that there is no express provision in the Constitution,
declaring the Constitution to be the supreme law of the land. Such a declaration was, however, deemed
superfluous by the framers of our Constitution, since all the organs of the State are to derive powers from
the Constitution, and the Constitution cannot be altered save in the manner laid down in the Constitution
itself for its amendment (Article 368). It is equally true that there is no express provision in the
Constitution empowering the courts to invalidate laws; but the Constitution has imposed definite
limitations upon each of the organs, and any transgression of those limitations would make an act or law
void. It is for the courts to decide whether any of the constitutional limitations has been transgressed or
not.68
It is a fundamental principle of our Constitutional Scheme, that every organ of the State, every authority
under the Constitution derives its power from the Constitution and has to act within the limits of such
power. But then the question is as to which authority must decide what are the limits on the power
conferred upon each organ or instrumentality of the State and whether such limits are transgressed or
exceeded. It is a cardinal principle of our Constitution that no one howsoever highly placed and no
authority however lofty can claim to be the sole judge of its power under the Constitution or whether its
action is within the confines of such power laid down by the Constitution.
The Judiciary is the interpreter of the Constitution and to the judiciary is assigned the delicate task to
determine what is the power conferred on each branch of Government, whether it is limited, and if so,
what are the limits and any action of that branch transgressed such limits. It is for the judiciary to uphold
the Constitutional values and enforce the Constitutional limitation. That is the essence of rule of law,
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which inter alia requires the executive or any other authority be conditioned by the Constitution and law.
The power of judicial review is an integral part of our constitutional system and without it there will be no
Government laws and the rule of law would become a teasing illusion and a promise of unreality.69 The
courts in India are not sui generis. They owe their existence, form, powers and jurisdiction to the
Constitution and the laws. The Constitution is the Supreme Law and other laws are made by Parliament. It
is they that give the courts their obligatory duties. One such being, the settlement of disputes in which the
States are ranged against citizens. Again, they decide disputes in which class interests are apparent. The
action of the courts, when exercised against the State, proves “irksome” to the State and equally when it is
between two classes, to the class which loses. It is easily realised that one of the main functions of Courts
under Constitution is to declare actions repugnant to the Constitution or the laws to be invalid. The courts
as well as the other organs and institutions are equally bound by the Constitution and the laws. Although
the courts in such cases imply the widest powers in the other jurisdiction and also give credit where it
belongs, they cannot always decide either in favour of the State or any particular class. There are
innumerable cases in which the decisions have gone against what may be described in the language of
communism as the “exploiting class”.70 The established Courts of Justices, when a question arises whether
the prescribed limits have been exceeded, must of necessity determine that question and the only way in
which they can properly decide to do so is by looking to the term of the instruments by which,
affirmatively, the legislative powers were created and by which negatively, they are restricted. If what has
been done is legislation within the general scope of the affirmative words which give the power and if
violates no express condition or restriction in which that power is limited, it is not for the Courts of
Justices to enquire further or to enlarge constructively those conditions and restrictions.71 It would seem
axiomatic that in any country under the rule of law, it necessarily devolves upon the courts to enquire and
determine in any given case whether an act of Legislature having authority over a limited range of subject
matter is within or without its power is or is not the law. A statute emanating from a Legislature not
having the power to pass it is not law. It cannot confer rights or impose liabilities. It is a “nullitias
nullitatum” and can affect nobody and the same law which has prescribed bounds to the legislative power
has imposed upon the judges the duty of seeing that these bounds are not overstepped. This proposition,
seemingly self-evident was elaborately attacked in argument before the Supreme Court of the United
States in 1803 and as elaborately affirmed in the well-known judgment of Chief Justice Marshall. It was
clearly stated by Lord Hobhouse speaking for the Privy Council in Citizen v Parsons,72 7 Appeal Cases
96,
In these cases, it is the duty of the court, however difficult it may be, to ascertain in what degree and to what extent authority to deal
with matters falling within these classes of subject exists in each Legislature and to define in the particular case before them the limits
of their respective powers.
The Constitution is the supreme lex, the paramount law of the land and there is no department or branch
of Government, be it the executive or the Legislature or judiciary derives its authority and whether it has
done so or not is for the court to decide. The court is the ultimate interpreter of the Constitution and when
there is manifestly unauthorised exercise of power under the Constitution, it is the duty of the court to
intervene. Let it not be forgotten that to the Supreme Court as much as to other branches of Government is
committed the conservation and furtherance of constitutional values. The courts’ task is to identify those
values in the constitutional plan and to work them into life in the cases that reach the courts. “Tact and
wife” restraint ought to temper any power, but courage and the acceptance of responsibility have their
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place too. The court cannot and should not shrink this responsibility because it has sworn the oath of
allegiance to the Constitution and is also accountable to the people of this country.73 Judicial review by
definition often involves a conflict between judicial and legislative judgment into the Constitution which
means or requires that while the judges have an obligation to ensure that the Constitutional bonds are not
overreached, they must not act as judges as they might as Legislators. Courts are not representative
bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed
and therefore most dependable within narrow limits. Their essential quality is its detachment, founded on
independence. History teaches that the independence of the judiciary is jeopardized when courts become
embroiled in the passion of the day and assume primary responsibility in choosing between competing
political, economic and social pressure.74 The courts must do their duty according to their own
understanding of the laws and the obligation of the Constitution. They cannot take their cue from
sentiments of politicians nor even indirectly give support to something which they consider to be wrong or
against the Constitution and the laws. The good faith of the judge is the firm bedrock on which any system
of administration securely rests and an attempt to shake the people’s confidence in the Court is striking at
the very root of our system of democracy. The oft quoted anger of the executive in the United States at the
time of the new deal and the threat to the Supreme Court (which the United States had the good sense not
to pursue) should really point the other way and it should be noted that today the security of the United
States rests upon the dependence on Constitution for nearly two hundred years and that is mainly due to
the Supreme Court.75
In Romesh Thappar v State of Madras,76 it was held: “this court is thus constituted the protector and
guarantor of the Fundamental Rights and it cannot consistently be with the responsibility so laid upon it,
refuse to entertain application seeking protection against infringement of such rights”.
It was held therein that Article 32 of the Constitution does not merely confer power on the Supreme Court,
as Article 226 does on the High Courts, to issue writs for the enforcement of rights conferred by Pt III or
for any other purpose as part of its general jurisdiction. Article 32 provides a “guaranteed” remedy for the
enforcement of those rights and the remedial right is itself made a fundamental right by being included in
Pt III. The Supreme Court is thus constituted the protector and guarantor of fundamental rights, and it
cannot consistently with the responsibility so laid upon it, refuse to entertain application seeking
permission against infringement of such rights. There could not be any kind of restrictions on the freedom
of speech and expression other than those mentioned in Article 19(2). There could not be any interference
with the freedom in the name of public interest. Even when clause (2) of Article 19 was subsequently
substituted under the Constitution (First Amendment) Act, 1951, by a new clause which permitted the
imposition of reasonable restriction on the freedom of speech and expression in the interest of sovereignty
and integrity of India, the security of the State, friendly relation with foreign States, public order, decency
or morality in relation to Contempt of Court, defamation or incitement to an offence, Parliament did not
choose to include a clause enabling the imposition of reasonable restriction in public interest.77
It was held that “this court has to play the role of a sentinel on the qui vive” and it must always regard it as
its solemn duty to protect the said fundamental rights zealously and vigilantly”.78 In Kesavananda Bharati
v State of Kerala,79 it was observed that the Constitution is the supreme lex in this country and all organs
of the State derive their authority, jurisdiction and powers from the Constitution and allegiance to it.
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It was held in that case that fundamental rights and directive principles constitute the “conscience of our
Constitution”. The purpose of the fundamental right is to create an egalitarian society, to free all citizens
from coercion or restriction by society and to make like liberty to all. The purpose of Directive Principle
is to fix certain social and economic goals for immediate attainment by bringing about non-violent social
revolution. Through such a social revolution, the Constitution seeks to fulfil the basic needs of common
man and to change the structure of our society. It aims at making the Indian masses free in the positive
sense. Without faithfully implementing the directive principles, it is not possible to achieve the Welfare
State contemplated by the Constitution. The power of judicial review is implicit in a written Constitution
and unless expressly excluded by a provision of the Constitution, the power of judicial review is available
in respect of exercise of powers under any of the provisions of the Constitution.80 The range of judicial
review recognised in the superior judiciary of India is perhaps the widest and the most expensive known
to the world of law. The power extends to examining the validity of even an amendment to the
Constitution, for now, it has been repeatedly held that no constitutional amendment can be sustained
which violates the basic structure of the Constitution.81 The power of judicial review must be exercised
with insight into social values to supplement the changing social needs. The existing social inequalities or
imbalances are to be removed and social order to be re-adjusted through rule of law, lest the force of
violent gain ugly triumph.82 The powers of Supreme Court under Article 32 and that of the High Court
under Article 226 are plenary powers and are not fettered by any legal constraints. If the court, in exercise
of these powers, has itself committed a mistake, it has the plenary power to correct its own mistake.83
Supreme Court has also included in it which represents judicial organ. In a recent decision, it was
observed that Constitutional system of government abhors absolutism and it being the cardinal principle
of our Constitution that no one, howsoever lofty, can claim to be the sole Judge of the power given under
the Constitution, mere co-ordinate constitutional status, or even the status of exalted constitutional
functionaries does not disentitle the Supreme Court from exercising its jurisdiction of judicial review it of
action which partake the character of judicial or quasi-judicial decision. It was held that the legislatures
have plenary powers but such powers are controlled by the basic concept of the written Constitution and
can be exercised within the legislative fields allotted to their respective jurisdiction under the Seventh
Schedule. They have the plenary legislative authority and discharge their legislative functions by virtue of
the powers conferred on them by the relevant provisions of the Constitution. But the basis of that power is
the Constitution itself. while holding that power of judicial review is a basic structure of the Constitution,
which could not be abrogated, it was held that the judicial organ of the State has been made the final
arbiter of constitutional issues and its authority jurisdiction and jurisdiction in this respect is an important
and integral part of the basic structure. It was held that the Supreme Court has never abandoned its
Constitutional function as the final Judge of the constitutionality of all acts purported to be done under the
authority of the Constitution.84
The Supreme Court can under Article 32(1), while considering a petition for enforcement of fundamental
right, declare an Act to be ultra vires or beyond the competence of the enacting legislature, if it adversely
affects the fundamental rights. Where an enactment, as soon as it came into force, affects the Fundamental
Rights of a person by its very terms, and without any further act being done, the person prejudicially
affected is entitled immediately to invoke Article 32, and get a declaration as to the invalidity of the
impugned Act.85
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Article 13, of course, specifically declares that any law which contravenes any of the provisions of the
Part on Fundamental Rights, shall be void. But, as our Supreme Court has observed,86 even without the
specific provision in Article 13 (which has been inserted only by way of abundant caution) the court
would have the power to declare any enactment which transgresses a fundamental right as invalid.
Similarly, Arts, 251 and 254 say that in case of inconsistency between Union and State laws, in certain
cases, the State law shall be void. of course, there is no corresponding provision nullifying a Union law
with respect to a matter included in the State List (List II); but Article 246(3) expressly provides that in
these matters, the State Legislature has “exclusive” powers, while Article 245 makes the powers of both
“Parliament and the State Legislatures” subject to the provisions of this Constitution. So, any law of
Parliament directly legislating with respect to a matter included in List II will be beyond the powers of
Parliament, and it will be the duty of the court, in interpreting the Constitution (Articles 131-33), to
declare such law of Parliament to be void. The power of the courts to invalidate laws made in excess of
the legislative powers of the Legislature is inherent in any Constitution which provides Government by
defined or limited powers.87
It is a fundamental principle of our Constitutional Scheme that every organ of the State, every authority
under the Constitution derives its power under the Constitution and has to act within the limits of such
power. But then the question arises as to which authority must decide as to what are the limits imposed on
the power conferred upon each organ or instrumentality of the State and whether such limits are
transgressed or exceeded. It is the cardinal principle of our Constitution that no one howsoever highly
placed and no authority howsoever lofty can claim to be the sole judge of its power under the Constitution
or whether its action is within the confines of such power laid down by the Constitution.
what are the limits and whether any action of that branch transgresses such limits. It is for the judiciary to
uphold the Constitutional values and to enforce the Constitutional limitation. That is the essence of rule of
law, which inter alia requires that the exercise of powers by the Government, whether it be the
Legislature or executive or any other authority be conditioned by the Constitution and the law. The power
of judicial review is an integral part of our constitutional system and without it, there will be no
Government of laws and the rule of law would become a teasing illusion and a promise of unreality.88 The
is they that give the courts their obligatory duties, one such being the settlement of disputes in which the
under Constitution is to declare actions repugnant to the Constitution or the laws to be invalid. The courts,
as well as the other organs and institutions, are equally bound by the Constitution and the laws. Although
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communism as the “exploiting class”.89
The limitations imposed by our Constitution upon the powers of Legislatures are: (a) Fundamental rights
conferred by Pt III; (b) Legislative competence; (c) Specific provisions of the Constitution imposing
limitations relating to particular matters; (d) Territorial limitation, in the case of a State Legislature.
(a) So, our courts shall have the power to pronounce upon the validity of laws on the ground of excess of
legislative powers as in any other federal country but by reason of the provisions of Articles 226, 228 and
131-36, the above function will be limited to the High Courts and the Supreme Court. The subordinate
courts have not been vested with any such power.
Transgression of its constitutional powers by a Legislature may be “direct” as well as “indirect”. In the
latter case, it is called “colourable legislation”, which also it is the duty of the courts to invalidate (see
Article 245 post).
(b) As to the power of invalidating laws on the ground of contravention of the fundamental rights
guaranteed by the Constitution, our courts stand midway between the courts of the United States and of
the Dominions. For, the latter have no guarantee of fundamental rights at all; on the other hand, there is
under our Constitution, no guarantee of “due process” and no doctrine of “judicial supremacy” as in the
American Constitution [Article VI(2)].90 Instead of “judicial supremacy” we have the doctrine of
“legislative supremacy”, subject to constitutional limitations.91 Though the Supreme Court will nullify an
Act which is in clear contravention of a constitutional limitation, it will not assume the role of supervising
or correcting the laws passed by the Legislature, under any theory of “natural rights92 or justice” or “ideals
of the Constitution”.93 In short, it would not under the colour of interpretation, seek to amend the law.94 It
will not question the “reasonableness” of any law except where the Constitution itself has expressly
authorised the court to exercise that power [e.g. Articles 19 and 304(b)]. The Supreme Court has itself
defined its powers thus:
“In India, the position of the Judiciary is somewhere between the courts in England and the United States.……. no scope for the Courts
in India to play the role of the Supreme Court in the United States.”95
But though the Supreme Court of India would have no power to review legislative policy or to nullify
Acts of the Legislature with reference to “general principles of jurisprudence”, a proper application of the
fundamental rights would still give the Supreme Court enough power to nullify unconstitutional
legislation, while others leave it to the court to determine the reasonableness of the restrictions imposed
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by the Legislature.
The right to relief from the Supreme Court under Article 32 against the infringement of a fundamental
right is itself guaranteed by the Constitution. This jurisdiction, which is in the nature of an original
jurisdiction, was not possessed by the predecessors of the Supreme Court, i.e., the Privy Council or the
Federal Court.
(c) As regards the violation of specific constitutional provisions, it should be remembered that all the
provisions of the Constitution are not justiciable or mandatory. Where a provision is recommendatory96 or
non-justiciable (being political in nature),1 it is obvious that the courts have no power to nullify a State
action (executive or legislative) for non-compliance with such provision.
It is the justiciability of a constitutional provision which constitutes the foundation of judicial review as
will be evident from the fact that though we have got, in Pt IV of our Constitution, a number of solemn
declarations called “Directive Principles of State Policy”, since Article 37 specifically says that these
Directive Principles “shall not be enforceable by any court”; no court shall be entitled to annul a
legislative act even though it transgresses a solemn declaration contained in this Part of the Constitution.2
On the other hand, even outside Articles 13 and 254, there are provisions in our Constitution which are
justiciable and already statutes have been annulled for violation of some of such provisions, though there
is no specific mandate in the Constitution to the effect that any law made in contravention of such
provisions shall be “void”. Thus, it has been held that any law which seeks to take away or curtail the
powers of the Supreme Court and the High Courts as conferred by Articles 136 and 226 must, to that
extent, be treated as void and inoperative, even though the individual’s right to avail of these powers is not
guaranteed as a fundamental right, as in Article 32(1).3 It is now settled that power of judicial review
being a basic feature of the Constitution, the jurisdiction conferred upon the High Courts under Articles
226 and 227 and upon the Supreme Court under Article 32 cannot be ousted even by a provision in the
Constitution.4
The earlier view expressed by Supreme Court in S.P. Sampath Kumar v UOI,5 that writ jurisdiction under
Article 2267 before the Hon’ble High Court and writ jurisdiction under Article 32 of the Constitution
before the Supreme Court was changed in L. Chandrakumar v UOI.,6 The court ruled that since judicial
review is a fundamental feature of the Constitution, the jurisdiction conferred on the High Court under
Article 226 and upon the Supreme Court under Article 32 cannot be ousted. The Court said, the
jurisdiction conferred upon the High Court under Article 226/227 and upon the Supreme Court under
Article 32 of the Constitution is part of the inviolable basic structure of the Constitution. In view of the
above position, the courts and tribunals may perform a supplemental rule in discharging the power
conferred by Articles 226/227 and 32 of the Constitution.7 The court ruled that all decisions of Tribunals,
whether created pursuant to Article 323A or Article 323B of the Constitution will be subject to the High
Court’s writ jurisdiction under Article 226/227 of the Constitution before a Division Bench of the High
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Court within whose territorial jurisdiction the particular tribunal falls.8 The court has also ruled that no
appeal from the decision of a tribunal will henceforth directly lie to the Supreme Court under Article 136.
Instead, the aggrieved party will now be entitled to move the High Court under Article 226/227 and from
the High Court’s decision the aggrieved party can then move the Supreme Court under Article 136.9 The
court has now firmly asserted that jurisdictions conferred upon the High Court under Article 226/227 and
upon the Supreme Court under Article 32 “is part of the inviolable basic structure of the Constitution”. It
means that these provisions of judicial review cannot be ousted by any constitutional or statutory
provision.
Other courts may perform a supplemental role in discharging the powers conferred by Articles 32, 226
and 227 on the Supreme Court and the High Courts. Accordingly, the Supreme Court has declared clause
(d) of Article 323A and clause 3(3) of Article 323B as unconstitutional to the extent that these clauses bear
the jurisdiction of the High Court under Article 226/227 and that of the Supreme Court under Article 32.
All clauses in the legislation enacted under Articles 323A and 323B excluding the High Court and
Supreme Court writ jurisdiction are unconstitutional. The supervisory jurisdiction of the High Court under
Article 227 has also been declared as part of the basic structure of the Constitution.10 In UOI v Delhi High
Court Bar Assn.,11 the Supreme Court has ruled that Parliaments power to enact law for the establishment
of tribunals is not taken away since Articles 323A and 323B are only enabling provisions and it does not
bar establishment for the tribunals such as Debt Recovery Tribunals for recovery of debts due to Bank.
The power of Parliament to establish a tribunal for any other matter not covered by Articles 323A and
323B has not been taken away. Court declared that Parliament has exclusive jurisdiction to make a law
with respect to any Entry in List I as well as in the residuary area – i.e., areas not covered by List II and
III. In that case, the court also justified the RBI Act as falling under Entry 45 List I – dealing with Banking
Company operation do include acceptance of loans and deposits and recovery of debts due to Banks.
The reason is that these mandatory provisions also impose limitations on the legislative powers of the
relevant Legislature, apart from the Fundamental Rights or the provisions dealing with the distribution of
powers between the Union and the State Legislatures. In State of Bombay v Chamarbaugwala,12 the
Supreme Court, thus observed that when the validity of an enactment is challenged, the court must
examine not only the vires of the Legislature to legislate with respect to the subject-matter of the Act, but
also ascertain.
if there is anything in any other part of the Constitution which places any fetter on the legislative powers of such legislature.12
The court will thus annul a law which contravenes Article 301 or 304.13
As against executive excesses, too, the Supreme Court has been endowed with some powers which were
not so amply possessed by its predecessor, the Federal Court. Apart from the jurisdiction, in appeal, over
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illegal acts, the Supreme Court possesses extraordinary revisional powers through the judicial writs of
certiorari, mandamus, etc. (Article 32), even more effectively than the High Court of England. It is
needless to estimate the value of these writs which have aptly been described as the “bulwark of English
liberty”. In India, the Supreme Court shall have the power to issue an appropriate writ whenever any
fundamental right is infringed by any administrative or quasi-judicial body, regardless of the technical
limitations of the prerogative writs in England.14
With the expansion of the sphere of governmental activity, inevitable, under modern conditions in spite of the strong criticism of the
late Lord Chief Justice of England, the institution of Administrative Tribunals and Agencies invested with judicial or quasijudicial
functions will continue to be a feature of modern Government and has almost become unavoidable. The only safeguard against the
abuse of the powers vested in such tribunals and bodies is in the ultimate or revisory jurisdiction being vested in the higher courts of the
realm and in the Supreme Court.15
IV. As an Advisory Body
The advisory jurisdiction of our Supreme Court is a peculiar feature since the American Supreme Court or
the English House of Lords does not exercise any such jurisdiction.
In the matter of Cauvery Water Disputes Tribunal,16 the court said that it cannot convert its advisory
jurisdiction into an appellate one. Nor it is competent for the President to invest the Supreme Court with
an appellate jurisdiction over the advisory jurisdiction under Article 143. To interpret Article 143(1) as
conferring on the executive power to ask the Supreme Court to revise its own decision would cause a
serious inroad into the independence of judiciary. In Article 143(1), the use of the word “may” indicate
that the Supreme Court is not obligated to express its opinion on the reference made to it. It has a
discretion in the matter and may in a proper case, for good reasons, decline to express any opinion on the
question submitted to it. Such a situation may perhaps arise if purely socio-economic or political questions
having no constitutional significance are referred to the court or a reference raise hypothetical issues,
which it may not be possible to answer without a full setting of facts in which the issues are to operate. It
is to ensure against such a contingency that the Article uses the word “may” and enables the Supreme
Court to refuse to answer a question if it is satisfied that it should not express its opinion having regard to
the question and other relevant facts and circumstances.
This will be fully discussed under Article 143, post.
The Supreme Court of Canada is also required to consider and advise upon questions referred to it by the
Governor General in Council and it may also advise the Senate and House of Commons on Private Bills
referred to the court under any rules or orders of the Senate or the House of Commons.
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Article 129 of the Constitution of Sri Lanka also provides for advisory jurisdiction of Supreme Court of
Sri Lanka.
Article 186 of the Constitution of Pakistan deals with the power of the President to seek the opinion of the
Supreme Court of Pakistan on any question of law which he considers to be of public importance by
making a reference. Similar is Article 106 of the Constitution of Bangladesh.
From all standpoints, thus, it has become clear that the Supreme Court of India “has more powers than any
other Supreme Court in any part of the world”, combining original, appellate, revisional and consultative
powers and functions in the same body, in a unique manner.
(1) 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 twenty five17 other Judges.
(2) Every Judge of the Supreme Court shall be appointed by the President by warrant und er his
hand and seal *[on the recommendation of the National Judicial Appointments Commission
referred to in article 124A] and shall hold office until he attains the age of sixty-five years:
**[***]
†[Provided that]—
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office in the manner provided in Clause (4).
18(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.]
(3) A person shall not be qualified for appointment as a judge of the Supreme Court unless he is a
citizen of India and—
(a) has been for at least five years a Judge of a High Court or of two or more such courts in
succession; or
(b) has been for at least ten years an advocate of a High Court or of two or more such courts in
succession; or
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(c) 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 the 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.
(4) 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.
(5) 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).
(6) 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”.
(7) 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.[KA(110]
[Art 124.1] Amendment and effect thereof
Clause (2A) was inserted by the Constitution (Fifteenth) Amendment Act, 1963.
Though the Constitution fixed the retiring age of a Judge of the Supreme Court [Article 124(2)] or of a
High Court [Article 217(1)], it had prescribed no machinery for determining the age of a judge for this
purpose, in case any dispute arose. The Fifteenth Amendment Act, therefore, inserted clause (2A) in
Article 124 and clause (3) in Article 124 and clause (3) in Article 217, to fill up this lacuna. The
provisions thus introduced, however, differ in the following respects as between Judges of the High
Courts and of the Supreme Court:
(i) In the case of a High Court Judge, the dispute is to be determined by the President after
consultation with the Chief Justice of India; but in the case of a Judge of the Supreme Court, it
is to be determined in the manner as may be laid down by Parliament by law.
(ii) While in the case of a Judge of the High Court, the amendment is retrospective,19 in the case
of Judges of the Supreme Court, the amendment will come into effect as and when Parliament
undertakes any legislation as provided for.
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No such legislation, as regards Supreme Court Judges, has yet been made by Parliament.
(iii) In the case of a Judge of the High Court, the words “if any question arises” in Article 217(3)
have already received interpretation 19 to the effect that it is competent for any person to raise
a question as to the age of a High Court and move the President to determine it. But these
words are absent from Article 124(2A). It is for Parliament to prescribe by law how the age of
a Supreme Court Judge may be challenged.
[Art 124.2] CLAUSE (1) [Art 124.3] OTHER CONSTITUTIONS (A) U.S.A.—
The Judiciary Act of 1789 established the Supreme Court with the Chief Justice and five associate
judges. After several changes up to 1869, the number has been raised to nine including the Chief
Justice.
(B) England.—
The High Court of England consists of not more than 85 Judges.
(C) Australia.—
Curiously, the Supreme Court of Australia is called the “High Court of Australia” (while the highest
court of a State is called Supreme Court of that State) [ff. 71, 73]. The High Court of Australia
consists of seven Judges including the Chief Justice.
(D) Canada.—
The Supreme Court of Canada was established by an Act of the Imperial Parliament in 1875. Since
1949, it consists of 9 Judges, including the Chief Justice.
(E) Japan.—
Article 79 of the Japanese Constitution says:
The Supreme Court shall consist of a Chief Judge and such number of judges as may be determined by law.
Since its establishment in 1947, the Supreme Court consists of 15 Judges.
(F) West Germany.—
Under the West German Constitution, the final judicial authority for constitutional and non-
constitutional matters is divided: (a) In constitutional matters, the final tribunal is the Federal
Constitutional Court (Article 93); (b) For preserving uniformity of judicial administration on matters
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relating to the general law, the final authority is vested in the Supreme Federal Court (Art 95).
(G) Government of India Act, 1935.—
See section 200 of that Act.
[Art 124.4] INDIA [Art 124.4.1] Constitution of Supreme Court
The Supreme Court stands at the head of the judicial system of India. The expression “Union
Judiciary” is to some extent a misnomer, because under our Constitution, the Union shall have no
Judiciary20 separate from that of the State. Of course, the Constitution, organisation, jurisdiction and
powers of the Supreme Court shall, subject of the Constitution, be regulated by Union legislation [see
Entry 77 of List I, Schedule VII]. The present clause says that Parliament may, by law, prescribe a
larger number of Judges than the original number of seven besides the Chief Justice for the Supreme
Court. There is no Article in our Constitution as in the American Constitution which vests the judicial
power of the Union in the Supreme Court.21
[Art 124.4.2] Legislation by Parliament
Parliament has, by enacting the Supreme Court (Number of Judges) Acts, 1956 (55 of 1956), 1960 (17
of 1960), 1977 and 1986, increased the number of Judges, other than the Chief Justice, from seven to
25. Hence, the court has now 25 Judges including the Chief Justice.22
[Art 124.4.3] Whether the fixation of the number of Judges is justiciable
In the case of the High Court, Article 216 leaves it to the President to fix the number of Judges to be
appointed. The Article does not prescribe the minimum number of Judges to be appointed to the
Supreme Court. But it can be inferred from Articles 145(3) and 143 that the strength shall not be less
than five, since the Constitutional questions are to be decided by not less than five Judges. A Seven
Judge Bench of the Supreme Court23 held that the question as to how many Judges should be
appointed in a particular High Court has been left to the discretion of the Executive, to be determined
upon a consideration of various administrative factors, which cannot be subjected to any judicial
standard, so that no court can issue a mandamus upon the Government of India, directing it appoint a
particular number of Judges for a particular High Court. If the executive fails in its duty to provide an
adequate number of Judges, “the appeal must be to the Legislature and not the courts.”
The above decision has been overruled in Supreme Court Advocates-on-Record Association v UOI,.24
It was held therein that the duty cast under Article 216 of the Constitution is a mandatory obligation,
the failure to perform this obligation will certainly result in negation of the rule of law by the law’s
delay and hence it is justiciable. Article 21 of the Constitution guarantees speedy trial and that will be
violated if there are no sufficient number of Judges. Failure to perform the obligation which is
mandatory in character is justiciable to compel performance of that duty. It was held that if a proposal
is made by the Chief Justice of a High Court to increase the strength of the court and has the backing
of the Chief Justice of India; it is binding on the executive.
The question of justiciability of the adequacy of the judges’ strength in a High Court was considered
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in the above case.25 The court emphasised that it is necessary to make a periodical review of the
judges’ strength of every High Court with reference to the felt need for disposal of cases taking into
account the backlog of cases and expected future filing. This is essential to ensure speedy justice.
Article 216 casts a duty on the Central Executive to periodically assess the judges’ strength of each
High Court. Article 216 is to be interpreted not in isolation, but as part of the entire Constitutional
Scheme conforming to the constitutional purpose and its ethos. According to the court, fixation of
judges’ strength in a High Court is a justiciable matter. If it is shown that the existing strength is
inadequate to provide speedy justice to the people, in spite of the optimum efficiency of the existing
strength,
a direction can be issued to assess the felt need and fix the strength of judges commensurate with the need to fulfil the State
obligation of providing speedy justice.
In making the review of the judges’ strength in a High Court, the President must attach great weight to
the opinion of the Chief Justice of the High Court and the Chief Justice of India and
if the Chief Justice of India recommends, the exercise must be performed with due dispatch.
This decision26 should apply with greater strength in the case of the Supreme Court because the
composition of that court, under Article 124(l), depends upon an Act of Parliament, so that the
question of inadequacy, if any, may be occasionally debated in Parliament.
A three—Judge Bench of the Supreme Court27 has opined that the decision of the 7-Judge Bench 26 on
this question should be reconsidered inasmuch as an inadequacy of Judges overburdens the sitting
Judges so as to affect their independence. It is submitted that apart from the impracticability of
constituting a larger than a 7-Judge Bench to reconsider this question, the difficulty of determining
any judicial standard on the question of adequate strength remains. The only thing that may be
suggested is an amendment of Article 216 of the Constitution to bring it in line with Article 124(l), so
that Parliament gets a chance to make a periodical review of the strength of the different High Courts
as that of the Supreme Court.
[Art 124.5] CLAUSE (2) [Art 124.6] OTHER CONSTITUTIONS (A) U.S.A.—
Federal Judges, including those of the Supreme Court, are appointed by the President with the consent
of the Senate. There is no age of retirement and they hold office during good behaviour, but on
reaching 70, a Judge of the Supreme Court who has served for 10 consecutive years may request
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release from active duties. But even then he continues to receive the full salary, in consideration of
being subject to recall to duty in the lower federal courts.
(B) England.—
Judges of the Supreme Court are appointed by the Crown, during good behaviour, on the advice of the
Lord Chancellor. Until 1960, there was no retiring age. But Judicial Pensions Act, 1959, read along
with Supreme Court Act, 1981 Section 11(2) as amended by Judicial Pension and Retirement Act,
1993. According to the above statutory provisions, the age of retirement is 70, although this may be
extended to 75 has provided for the compulsory retirement of all Judges of the Supreme Court and the
Lords of Appeal, at the age of 70. Under Section 9 of the Supreme Court Act, 1981, a Judge may be
asked to sit beyond the age of retirement from time-to-time.
Should the judiciary be “representative” and if so, what does it mean? The idea that judiciary should
be “representative” of the community was repudiated by the Home Affairs Committee and by the Lord
Chancellor’s Department wherein it was asserted, “It is not the function of the judiciary to reflect
particular section of the community, as it is the democratically elected legislature. The judge’s role is
to administer justice in accordance with the Law of England and Wales. This requires above all
professional legal knowledge and competence. Any litigant or defendant will usually appear before a
single Judge and it is of paramount importance that the Judge is fully qualified for the office he or she
holds and is able to discharge his or her functions to the highest standards. Social or other
considerations are not relevant for this purpose; the Lord Chancellor accordingly seeks to appoint or
recommend for appointment, those who are best qualified candidates available and willing to serve at
the time.”28
On the other hand, however, there is recognition of the principle that:
judiciary should “more reflect” the make-up of society as a whole which should tend over time to emerge by ensuring the fullest
possible equality of opportunity for persons in all sections of society who wish to enter the legal profession and who aspire to sit
judicially.
But this will require “equality of opportunity at all levels of educational system and the legal system
as well as in the appointment system itself; a sentiment that it is perhaps easier to identify then
implement”.29 Lord Chancellor has expressed a desire to “promote equality” while still maintaining
that “it is not the purpose of judiciary to be representative of society”.
Like many other constitutional principles, judicial independence has many facets. Judge should be
independent of Government, but also independent of the parties appearing before them. The principle
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also raises questions about judicial salaries. Judges need to be protected from the threat of
Government cuts to their salary (lest they be penalized for unpopular decisions). Salaries are now
governed by statute (Judges Remuneration Act, 1965) and revised by the Senior Salaries Review
Body. Judges also need to have security of tenure (lest they be removed for an unpopular decision) to
be protected from political pressure and intimidation (but not necessarily popular criticism) and to be
immune from liability – whether criminal or civil – for the manner in which they discharge the
responsibilities of office. Before considering these matters, it is to be noted that the principle of
judicial independence has been reinvigorated by the Human Rights Act, 1998 with Article 6 of the
ECHR guaranteeing a right to a fair trial and public hearing “by an independent and impartial
tribunal”. In Starrs v Ruxton,30 the High Court of Judiciary held that temporary
Sheriffs were not independent and impartial because, under the term of appointment, such judges
could be recalled by the minister before the end of their appointment which was renewable period of
only one year. Different question relating to judicial independence may arise as a result of growing
tendency of some judges to court media attention, as in December 2001 when the Lord Chief Justice
“spared a row over civil liberties” when he suggested that the law could be changed to allow
paedophiles not yet convicted of a crime to be locked up to protect the public.31
(C) Australia.—
Judges of the High Court are appointed by the Governor-General in Council. The appointment shall be
for a term expiring upon his attaining the age of seventy years [Article 72(iii)].32 They may be
removed only on an address by Parliament, under section 71(ii).
(D) Canada.—
Judges of the superior courts are appointed by the Governor-General and hold office during good
behaviour, as in England, subject to compulsory retirement at the age of 75 and subject to removal
upon a joint address of both Houses of Parliament.
(E) Switzerland.—
Judges of the Federal Tribunal are elected by the federal legislature for 6 years; but in practice they are
re-elected so long as they live or care to serve.33 But in practice, Judges resign in the year in which
they attain the age of 70.34
(F) Japan.—
Article 6 of the Japanese Constitution provides:
The Emperor shall appoint the Chief Judge of the Supreme Court as designated by the Cabinet.
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Judges, other than the Chief Judge, are “appointed by the Cabinet” (Article 79). The only difference,
thus, is that in the case of Judges of the Supreme Court other than the Chief Justice, the appointment is
made direct by the Cabinet, without concurrence of the President. The appointment of the Judges of
the Supreme Court shall be reviewed by the people at the first general election of members of the
House of Representatives following their appointment, and shall be reviewed again, at the first general
election of members of the House of Representatives after lapse of ten years and in the same manner
thereafter. [Article 79(2)]
As to retirement, Article 79 provides:
The Judges of the Supreme Court shall be retired upon the attainment of the age as fixed by law.
The age fixed by law for Supreme Court Judges is 70. [As to removal, see under clause (4), on p 5587
post.]
(G) Eire.—
Judges of the Supreme Court and the High Courts are appointed by the President [Article 35(l)], on the
advice of the Government [Article 13(9)]. The age of retirement and conditions of service are to be
prescribed by law [Article 36], but a Judge of the Supreme Court or a High Court cannot be removed
except by resolutions passed in either House of the Legislature, calling for his removal on the ground
of “stated misbehaviour or incapacity” [Article 35(4)(a)].35
[Art 124.7] INDIA [Art 124.7.1] Appointment of Judges of the Supreme Court
The system of appointment of Judges of the Supreme Court as prescribed by the Constitution modifies
the system of appointment by the Executive as obtains elsewhere in order to secure absolute
independence of the Judiciary. In England, though the Crown acts on the advice of the Lord
Chancellor in this matter, the Lord Chancellor, besides being the head of the judiciary, is also a
member of the Cabinet and, in making his choice he consults the Prime Minister.36 From 2009, the
House of Lords will be replaced by the Supreme Court and its first members will be the present Law
Lords. Thereafter, its members will be appointed by the Queen on the recommendation of the Prime
Minister who must recommend a person notified to him by the Lord Chancellor, who must notify a
person selected by a Special Selection Commission. This comprises the President and Deputy
President of the Supreme Court, one non-legally qualified member of the Judicial Appointments
Commission and their equivalents in Scotland and Northern Ireland, nominated by the Chancellor on
the recommendation of an appropriate body. The Commission will consult Senior Judges, the Lord
Chancellor and the leaders of the devolved governments. A member of the Supreme Court must be
qualified either by holding judicial office for atleast two years or practice in the Senior Courts for
atleast fifteen years. Selection must be solely on merit and the Judges between them must have
knowledge or experience in practice of the law of each part of the UK, thus acknowledging the
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differences between the English Law and that of the devolved regimes.37
In UK, there are checks and balances to safeguard political independence from the executive. These
have been put in place by Constitutional Reforms Act, 2005 replacing much criticised informal regime
of judicial appointments which was in the hands of Lord Chancellor and in the case of Court of
Appeal and House of Lords, the Prime Minister. However, there will still be a limited political input
by the Lord Chancellor. The centerpiece of the new process is an independent Judicial Appointments
Commission, which in substance, will make most judicial appointments under the 2005 Act.
Appointments are made either by the Queen on the recommendation of Lord Chancellor or in the case
of lay Magistrates by Lord Chancellor directly.38 The Lord Chancellor can recommend or appoint only
a person selected by the Judicial Appointments Commission or in some cases a special commission or
panel under the Act.
There are elaborate arrangements to ensure the independence of the Commission. Its fifteen members
are appointed by the Queen on the recommendation of the Lord Chancellor. It comprises a lay chair,
plus five judges, one of each level, one practising Solicitor and barrister, one tribunal member, one lay
Magistrate and five lay members. (section 12). The lay members must be selected by a panel of four
persons. These consist, a lay chair (who must not be a lawyer), judge, MP or member of the
Commission or its staff selected by the Lord Chancellor with the agreement of Lord Chief Justice, the
Lord Chief Justice, a person nominated by the Chair and the Chair of the Commission. Civil servants
are excluded from the membership of the Commission. The Lord Chancellor, with the agreement of
Lord Chief Justice and subject to the approval of Parliament, can increase the number of members.
Commissioners hold office for a fixed term that is renewable, but cannot be more than ten years in
total. They can be removed on the recommendation of the Lord Chancellor on the ground of criminal
conviction, bankruptcy, failure to perform duties, unfitness or inability.
The Supreme Court which from 2009 will replace the House of Lords as the highest appeal tribunal is
subject to special provisions. Its first members will be the present Law Lords. Thereafter, its members
will be appointed by the Queen on the recommendation of the Prime Minister who must recommend a
person notified to him by the Lord Chancellor who must notify a person selected by a Special
Selection Commission. This comprises the President and Deputy President of the Supreme Court, one
non-legally qualified member of the Judicial Appointment Commission and their equivalent in
Scotland and Northern Ireland, nominated by the Lord Chancellor on the recommendation by the
appropriate body. The Commission should consult the senior judges, the Lord Chancellor and the
leaders of the devolved governments. A member of the Supreme Court must be qualified either by
holding high judicial office for at least two years or practice in the senior courts at least for fifteen
years. Selection must be solely on merit (undefined) and the judges between them must have
knowledge or experience in practice of the law of each part of UK, then acknowledging the difference
between English law and that of the devolved regions.
Appointment of Heads of Division and Lord Justice of Appeal are made by the Queen on the
recommendation of Lord Chancellor following selection by a panel of four comprising the Chair of
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the Commission, a lay member of the Commission and two prescribed judges. Appointments to the
High Court and the lower Courts are made by the Queen or the Lord Chancellor in both cases
following a selection by the Commission.
Appointment must be made solely on the basis of merit, subject to the appointee being of good
character (undefined). Subject to this, “diversity” must be encouraged. The Lord Chancellor may issue
procedural guidance to the Commission which it must take into account. Judges of the main courts and
some tribunals must be appointed from a pool of experienced lawyers or judges. This contrasts with
the position in other European countries where there is a separate judicial profession. The UK system
has the advantage of drawing on talented people from outside Government who are familiar with the
working of the court process. The disadvantage is that this might reinforce the perception of the legal
system as a closed elite.
In relation to all levels of appointments, the powers of Lord Chancellor are similar. The Commission
or panel must submit one name to the Lord Chancellor who cannot put forward any other name. He
can reject the nomination or refer it back for reconsideration, but in either case once only. He can
reject only on the ground of inadequate evidence of suitability or evidence of unsuitability. He must
give reasons. If the Lord Chancellor rejects a nomination, the same name cannot be put forward again
for that vacancy. However, where a selection has been referred for reconsideration, and not chosen
again, he can put forward the original name. In the case of the Supreme Court, a reconsideration can
also be required if the judges between them would not have knowledge or experience in practice of the
law of each part of the UK. These provisions constitute an elaborate set checks and balances designed
to make it difficult for any interest group to dominate the appointment process. However, given the
vagueness of the appointment criteria and the Government system in the UK is pervaded by informal
personal networks, it is doubtful whether it is possible to ensure that the appointment process is fully
independent.
These provisions do not apply to the appointment of lay Magistrates nor to tribunal appointment.
Although Magistrates deal with relatively minor matters, they account for the majority of criminal
cases. Magistrates are appointed by Lord Chancellor, who may seek advice from the Judicial
Appointment Committee and must consult locally. (Constitutional Reforms Act, 2005).
The changes made by the Constitutional Reforms Act can be criticised from three directions. First,
some might regard them merely as cosmetic tinkering ignoring wider question of principle such as
independence and accountability of the judges, whether positive measures should be taken ignoring
wider question of principle such as the independence and accountability of judges, whether positive
measures should be taken to widen the pool from which judges are selected, whether the Supreme
Court should be confined to important Constitutional issues and whether it should be able to overrule
the Acts of Parliament. Secondly, traditionalists might regard the reform as expensive, disruptive and
unnecessary in the light of the (to them) successful accommodation achieved by the existing
arrangements. Third, those with a utilitarian bent might consider the proposals as a wasted opportunity
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for fine-tuning of detailed matter such as the re-organisation of the mechanism for appeals.39
Article 124(2) of our Constitution acknowledges that in the present state of the country, it would be
dangerous to let the executive alone in the matter of appointment of Judges, which would render the
appointments liable to be made on a political basis, undermining considerations of merit in possible
cases. Hence, the Executive should be in consultation with persons who are well-qualified to give
advice on these matters. On the other hand, it does not give sole power to the Chief Justice to make the
appointment of his colleagues, recognising the failings and prejudices of a single person,
notwithstanding his eminence.
The Sapru Committee report recommended that the Justices of the Supreme Court and the High Court
should be appointed by the Head of the State in consultation with the Chief Justice of the Supreme
Court and in the case of High Court Judges, in consultation additionally with the High Court Chief
Justice and head of the unit concerned. The Justices of all courts could be removed on ground of
misbehaviour or infirmity of mind by the Head of the State with the concurrence of the Supreme Court
in the case of the High Court Justices and with the concurrence of a Special Tribunal in the case of
Supreme Court Justices.40 But the Union Constitution Committee, considering the recommendation at
its 11th June meeting, recommended to the assembly that the Justices be appointed by the President in
consultation with the Chief Justice of the Supreme Court and such other Supreme or High Court
Justices as might be necessary. This provision ultimately became part of the Constitution.41 While
introducing the Provincial Constitution Committee report to the Constituent Assembly, Patel
explained that the Committee had paid special attention to the manner of appointing Judges, “for, the
Judiciary should be above suspicion and should be above party influences”.
In short, this clause provides that in the matter of appointment of the Chief Justice of India, the
President shall consult such Judges of the Supreme Court and of the High Courts as he may deem
necessary. And in the case of appointment of other Judges of the Supreme Court, consultation with the
Chief Justice of India, in addition to the above, is obligatory. The word “consultation”, however,
indicates that the President is not bound to follow the recommendations of these persons. The last
word will thus rest with the Prime Minister, but he will have the advantage42 of having the views of
those who are competent to speak in the matter.
The view expressed in S.P. Gupta’s case to the effect that the executive should have primacy, was not
accepted in Supreme Court Advocates-on-Record Association v UOI,.43 It was held therein that in the
event of conflicting opinion by Constitutional functionaries, the opinion of the Chief Justice must have
primacy, since the opinion was found collectively which achieves the constitutional purpose, i.e.,
independence of Judiciary from political influence both before and after appointment. It was held
therein that the question of primacy to the opinion of Chief Justice of India in the matters of
appointment and transfers and their justiciability should be considered in the context of the
independence of the Judiciary as part of the basic structure of the Constitution, to secure “rule of law”
essential for the preservation of the democratic system.
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[Art 124.7.2] ‘Every Judge of the Supreme Court’
1. This generic expression in clause (2), as well as the expression “a Judge of the Supreme Court’ in
the subsequent clauses, without any reservation would include the Chief Justice of India.44 The general
provisions in clauses (2)-(7) will, therefore, apply to all Judges of the Supreme Court, including the
Chief Justice.
In Supreme Court Advocates on Record Assn. v UOI,45 the court suggested the following norms in the
matter of appointment of judges:—
(1) The Chief Justice of India is expected to ascertain the views of the senior most judge of the
Supreme Court whose opinion is likely to be significant in adjudging the suitability of the
candidate by the reason of the fact that he has come from the same High Court or otherwise.
Article 124(2) is an indication that ascertaining of the views of some other judges of the
Supreme Court is requisite. This ensures that the opinion of Chief Justice of India is not
merely his individual opinion, but an opinion collectively by a body of men at the apex level
in the judiciary.
(2) Inter se seniority amongst judges in their High Court and their combined seniority on all India
basis should be kept in view and given due weight while making the appointment from
amongst the High Court judges to the Supreme Court. Unless there is any strong cogent reason
to justify a departure, the order of seniority must be maintained between them while making
their appointments to Supreme Court.
(3) Along with other factors such as proper representation of all sections of the people from all
parts of the country, legitimate expectation of suitable and equally meritorious judges to be
considered in their turn is a relevant factor for due consideration while making the choice of
the most suitable and meritorious among them, the outweighing consideration being merit, to
select the best available for the Apex Court.
(4) The opinion of the Chief Justice of India, for the purpose of Articles 124(2) and 217(1), so
given, his primacy in the matter of all appointments, and no appointment can be made by the
President under these provisions to the Supreme Court and the High Court unless it is in
conformity with the final opinion of the Chief Justice of India, formed in the manner
indicated. But, in the case of non-appointment of the recommendee of the Chief Justice of
India, on the basis of positive material indicating his appointment to be otherwise unsuitable,
the Chief Justice of India does not have the primacy to persist for appointment of the
recommendee except in the situation indicated later.
(5) Non-appointment of any one recommended on the ground of suitability, must be for good
reasons, disclosed to the Chief Justice of India to enable him to reconsider and withdraw his
recommendation on those considerations. If the Chief Justice of India does not find it
necessary to withdraw his recommendation, even thereafter, but the other judges of the
Supreme Court who have been consulted in the matter are of the view that it ought to be
withdrawn, the non-appointment of that person for reason to be recorded may be permissible
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in the public interest. However, if after due consideration of the reasons disclosed to the Chief
Justice of India, that the recommendation is reiterated by the Chief Justice of India with the
unanimous agreement of the judges of the Supreme Court consulted in the matter, with reason
for not withdrawing the recommendation, then that appointment as a healthy convention ought
to be made.
(6) In order to ensure effective consultation between all the constitutional functionaries involved
in the process, the reason for disagreement, if any, must be disclosed to all others to enable
reconsideration on that basis. All consultations with everyone involved including all the
judges consulted must be in writing and the Chief Justice of the High Court, in the case of
appointment to a High Court, and the Chief Justice in all cases, must transmit with his opinion,
the opinion of all judges consulted by him, as a part of record.
(7) To achieve this purpose and to give legitimacy and greater credibility to the process of
appointment, the process must be initiated by the Chief Justice of India in the case of the
Supreme Court and the Chief Justice of High Court in the case of High Courts. This is the
general practice prevailing, by convention followed over the years and continues to be general
rule even now after S.P. Gupta v UOI.,46 The Executive itself has so understood the correct
procedure notwithstanding the decision in S.P. Gupta’s case and there is no reason to depart
from it when it is in consonance with the concept of independent judiciary.
(8) Adherence to a time bound schedule would prevent any undue delay and avoid dilatory
methods in the appointment process. On initiation of the proposal by Chief Justice of India or
the Chief Justice of the High Court, as the case may be, failure of other constitutional
functionaries to express their opinion within the specified period should be construed to mean
the deemed agreement of the functionary with the recommendation and the President is
expected to make the appointment in accordance with final opinion of Chief Justice of India.
In such a situation, after the expiry of specified time within which all the constitutional
functionaries are to give their opinion, the Chief Justice of India is expected to request the
President to make the appointment without any further delay, the process of consultation being
complete.
(9) On the initiation of the proposal by the Chief Justice of India or the Chief Justice of the High
Court, as the case may be, copies thereof should be sent simultaneously to all other
constitutional functionaries involved. Within the period of six weeks from the receipt of the
same, the other functionaries must convey their opinion to the Chief Justice of India. In case
any such functionary disagrees, it should convey it to the Chief Justice of India. The Chief
Justice of India would form his final opinion and convey it to the President within four weeks
for final action to be taken. It is appropriate that a memorandum of procedure be issued by
Government of India to this effect after consulting the Chief Justice of India and with the
modification, if any, suggested by Chief Justice of India to effectuate the purpose.
(10)The process of appointment must be initiated well in time to ensure completion at least one
month prior to the date of anticipated vacancy and the appointment should be duly announced
soon thereafter, to avoid any speculation or uncertainty. The schedule should be followed
strictly and invariably in the appointment of the Chief Justice of the High Court and Chief
Justice of India, to avoid the initiation being rendered headless for any significant period. In
the case of appointment of the Chief Justice of a High Court to the Supreme Court, the
appointment of the successor Chief Justice in the High Court should be made ordinarily within
one month of the vacancy.
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(11)Apart from the well known departures, the appointments to the office of the Chief Justice of
India have by convention been of the senior most judge of the Supreme Court considered fit to
hold the office and the proposal is initiated in advance by the outgoing Chief Justice of India.
The provision of Article 124(2) enabling consultation with any other judge is to provide for
such consultation, if there be any doubt about the fitness of the senior most judge to hold the
office which alone may permit and justify a departure from longstanding convention. For this
reason, no other substantive consultation process is involved. There is no reason to depart
from the existing convention and, therefore, any further norm for the working of Article
124(2) in the appointment of Chief Justice India is unnecessary.
(12)In matters relating to appointment in the High Court, the Chief Justice of India is expected to
take into account the views of his colleagues in the Supreme Court who are likely to be
conversant with the affairs of the concerned High Court. The Chief Justice of India may also
ascertain the views of one or more senior judges of that High Court whose opinion, according
to the Chief Justice of India is likely to be significant in the formation of his opinion. The
opinion of the Chief Justice of High Court would be entitled to the greatest weight and the
opinion of other functionaries involved must be given due weight in the formation of the
opinion of the Chief Justice of India. The opinion of the Chief Justice of the High Court must
be formed after ascertaining the views of at least the two senior most judges of the High Court.
The opinion of Chief Justice of India is “reflective” of the opinion of the judiciary which means that it
must necessarily have the element of plurality in its formation. The opinion of the Chief Justice of
India which has the primacy in the matter of recommendation for appointment to Supreme Court has
to be formed in consultation with a collegium of judges. Presently, and for a long time now, the
collegium consists of two senior most puisne judges of the Supreme Court.
2. It follows that when a Judge of the Supreme Court is appointed Chief Justice of India, he does not
cease to be a Judge of the Supreme Court47 and that if, for any reason, his appointment as Chief
Justice is held to be invalid, he would not necessarily lose his office as a Judge.47
3. The provisions of clause (1) also make it clear that the Chief Justice of India is not identified with
the Supreme Court of India.48
[Art 124.7.3] Nature of the power to appoint
The following principles have been laid down by the Supreme Court regarding the President’s power
to appoint a Judge under Article 124(2) or Article 217(l):
The question of selection and appointment of judges is crucial to the maintenance of independence of
the judiciary. If the final power in this respect is left with the executive, then it is possible for the
executive to subvert the independence of judiciary by appointing pliable judges.
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The Constitution does not lay down a very definite procedure for the purpose as it merely says that the
President has the power to appoint Supreme Court judges in consultation with the Chief Justice and
“such” other judges of the Supreme Court and of the High Court as “the President may deem
necessary”. (See Article 124(2)). It was not clear from this provision as to whose opinion was finally
to prevail in case of difference of opinion among the concerned persons. This important question has
been considered by the Supreme Court in several cases.
In 1991, in Subhash Sharma v UOI,49 a three Bench of the Supreme Court expressed the view that
consistent with the Constitutional purpose and process, as expressed in the Preamble of the
Constitution,
it becomes imperative that the role of the institution of Chief Justice of India be recognised as of crucial importance in the matter
of appointment to the Supreme Court.
As regards “consultation” mentioned in Article 124(2), the court said:
The constitutional phraseology would require to be read and expounded in the context of the constitutional philosophy of
separation of powers to the extent recognized and adumbrated and the cherished values of judicial independence
The Bench suggested that the question be considered by a larger Bench. The Bench emphasised:
An independent non-political judiciary is crucial to the sustenance of our chosen political system. The vitality of democratic
process, the ideals of social and economic “egalitarianism” the imperatives of a socio-economic transformation envisioned by the
Constitution as well as rule of law and great values of liberty and equality are all dependent on the tone of the judiciary. The
quality of judiciary cannot remain unaffected in turn, by the selection of judges.
Subsequent to Subhash Sharma’s case – supra, the question of the process of appointing the Supreme
Court judges came to be considered by the Supreme Court in Supreme Court Advocates on Record
Assn. v UOI.,50 A public interest writ petition was filed in the Supreme Court by the Lawyers
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Association raising several crucial issues concerning judges of the Supreme Court and the High
Courts. A majority of nine judges Bench considered the questions of the primacy of the Chief Justice
of India in regard to appointment of Supreme Court Judges. The Court emphasised that the question
has to be considered in the context of achieving “the Constitutional purpose of selecting the best”
suitable for the composition of the Supreme Court “so essential to ensure the independence of the
judiciary and there-by to preserve democracy”.
Referring to “consultative” process envisaged in Article 124(2) for appointment of Supreme Court
judges, the court emphasised that this procedure indicates that the Government does not enjoy
“primacy” or absolute discretion in the matter of appointment of Supreme Court judges.
The court pointed out that the provision for consultation with the Chief Justice was introduced because
of the realisation that the Chief Justice is best equipped to know and assess the worth of the candidate
and his suitability for appointment as a Supreme Court judge and it was also necessary to eliminate
political influence.
The court has also emphasised that the phraseology used in Article 124(2) indicates that it was not
considered desirable to vest absolute discretion or power of veto in the Chief Justice as an individual
in the matter of appointment, so that there should remain some power with the Executive to be
exercised as a check whenever necessary. Accordingly, the court observed:
The indication is that in the choice of a candidate suitable for appointment, the Chief Justice of India should have great weight; the
selection should be made as a result of participatory consultative process in which the Executive should have power to act as a
mere check on the exercise of power by the Chief Justice of India to achieve the constitutional purpose. Thus the Executive
element in the appointment process is reduced to the minimum and any political influence is eliminated. It was for this reason that
the word “consultation” instead of “concurrence” was used, but that was done merely to indicate that the absolute discretion was
not given to anyone, not even to Chief Justice of India as an individual.
Thus, in the matter of appointment of a Supreme Court judge, the primary aim ought to be to reach an
agreed decision taking into account the views of all the consultees giving the greatest weight to the
opinion of the Chief Justice. When decision is reached by consensus, no question of primacy arises.
Only when conflicting opinions emerge at the end of the process, the question of giving primacy to the
opinion of Chief Justice arises
unless for very good reason known to the Executive and disclosed to Chief Justice of India that the appointment is not considered
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to be suitable.
The court has further clarified that the “primacy” of the opinion of the Chief Justice of India is in
effect formed collectively, that is to say, after taking into account the views of the senior colleagues
who are required to be consulted by him for the formation of his opinion.
Emphasizing upon this aspect further, the court has said that the principle of non-arbitrariness is an
essential attribute of Rule of Law and is all pervasive throughout the Constitution. An adjunct to this
principle is the absence of absolute power in one individual in any sphere of constitutional activity.
Therefore, the meaning of “the opinion of Chief Justice” is reflective of “the opinion of the Judiciary”
which means that:
it must necessarily have the element of plurality in its formation. The final opinion expressed by the Chief Justice is not merely his
individual opinion, but the collective opinion formed after taking into account the views of some other judges who are traditionally
associated with this function.
The court further observed:
Entrustment of the task of appointment of superior judges to high constitutional functionaries, the greatest significance attached to
the view of the Chief Justice of India, who is best equipped to assess the true worth of the candidate for adjudging their suitability;
the opinion of Chief Justice of India being the collective opinion formed after taking into account the views of some of his
colleagues and the Executive being permitted to prevent an appointment considered to be unsuitable for strong reasons disclosed to
the Chief Justice of India, provide the best method in the Constitutional Scheme to achieve the constitutional purpose without
conferring absolute discretion or veto upon either the Judiciary or the Executive much less in any individual, be the Chief Justice of
India or the Prime Minister.
The court also laid down the following propositions in relation to the appointment of a Supreme Court
judges:—
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(1) Initiation of the proposal for appointment of a Supreme Court judge must be by the Chief
Justice.
(2) In exceptional cases alone, for stated cogent reasons, disclosed to the Chief Justice indicating
that the person who was recommended is not suitable for appointment, that appointment
recommended by the Chief Justice of India may not be made. However, if the stated reasons
are not accepted by the Chief Justice and other Supreme Court judges, who have been
consulted in the matter on reiteration of the recommendation of the Chief Justice of India, the
appointment should be made as a healthy convention.
(3) No appointment of any judge to the Supreme Court can be made by the President unless it is in
conformity with the final opinion of the Chief Justice formed in the manner indicated above.
(4) As the President acts on the advice of the Council of Ministers in the matter of appointment of
a Supreme Court judge, the advice of the Council of Ministers is to be given in accordance
with Article 124(2) as interpreted by the Supreme Court.
(5) All consultations with everyone involved including all the judges consulted must be in writing.
Expression of opinion in writing is an in-built check on exercise of the power and ensures due
circumspection.
(6) Appointment to the office of Chief Justice of India ought to be of the senior most judge of the
Supreme Court, considered fit to hold the office. The provision of Article 124(2) enabling
consultation with any other judge is to provide for such consultation, if there be any doubt
about the fitness of the senior most judge to hold the office which alone may permit and
justify a departure from the longstanding convention i.e., to appoint the senior most Supreme
Court judge to be the Chief Justice of India.
(7) Inter se seniority amongst the judges in their High Court and their combined seniority on all
India basis:
should be kept in view and given due weight while making appointments from amongst High Court judges to
the Supreme Court. Unless there be any strong cogent reasons to justify departure that order of seniority must
be maintained between them while making their appointment to the Supreme Court.
The main purpose underlying the law laid down by the Supreme Court in the matter of appointing
Supreme Court judges was to minimise political influence in judicial appointments as well as to
minimise individual discretion of Constitutional functionaries involved in the process of appointment
of high judicial officers is sought to be made more transparent so as to ensure that neither political bias
nor personal favouritism nor animosity play any part in the appointment of a judge.
Clarifying certain points arising out of the above judgment, the Supreme Court has delivered an
advisory opinion on a reference made by the President51 under Article 143. In this opinion, the court
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has laid down the following propositions in regard to the appointment of Supreme Court judge.
(1) In making the recommendation for appointment to the Supreme Court, the Chief Justice of
India ought to consult four senior most judges of the Supreme Court. Thus the collegium to
make recommendation for appointment should consist of the Chief Justice and four senior
most puisne judges.
(2) The opinion of all members of the collegiums in respect of each recommendation should be in
writing.
(3) The views of the Supreme Court judge who hails from the High Court from where the person
recommended comes must be obtained in writing for the consideration of the collegium.
(4) If the majority of the collegium is against the appointment of a particular person, that person
shall not be appointed. The court has gone on to say that:
if the two judges forming the collegiums express strong views, for good reasons, that are adverse to the
appointment of a particular person, the chief Justice of India would not press for such appointment.
(5) The following exceptions have been engrafted on the rule of seniority among the High Court
judges for appointment to the Supreme Court -
(a) A High Court judge of outstanding merit can be appointed as a Supreme Court judge
regardless of his standing in the seniority list. All that needs to be recorded when
recommending him for appointment is that he has outstanding merit.
(b) A High Court judge may be appointed as a Supreme Court judge for “good reasons” from
amongst several judges of equal merit, as for example, the particular region of the country
in which his parent High Court is situated is not represented on the Supreme Court Bench.
Thus, the responsibility to make representations for appointment as Supreme Court judge has been
taken away from the Central Executive and has been placed on a collegiums consisting of Chief
Justice of India and senior most puisne judges. The sphere of consultation has thus been broadened.
Before this opinion was delivered, the collegiums consisted of the Chief Justice and two senior most
judges. The court has now specifically stated that an opinion formed by the Chief Justice of India in
any manner other than that indicated has no primacy in the matter of appointment to the Supreme
Court and the Government is not obliged to act thereon. The process of consultancy among the
members of collegiums has now been formalised as every member judge has to give his opinion in
writing.
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(i) It is an “executive”, not quasi-judicial function.52

(ii) The President is constitutionally obliged to consult the Chief Justice of India in the case of
appointment of a Judge to the Supreme Court as per mandatory provision of Article 124(2)
and in the case of appointment of a Judge to the High Court, the President is obliged to consult
the Chief Justice of India and the Governor of the State and in addition, the Chief Justice of
the High Court concerned, in case the appointment relates to a Judge other than the Chief
Justice of the High Court. It was held that to place the opinion of the Chief Justice of India on
par with other constitutional functionaries is not in consonance with the spirit of the
Constitution, but against the very nature of the subject-matter concerning the Judiciary and in
opposition to the context in which “consultation” is required. It was further observed that
Articles 124 and 217 do not speak in specific terms requiring the President to consult the
executive as such, but the executive comes into play in the process of appointment of Judges
to the higher echelon of higher judicial service. It was held that in the case of appointment of
Judges, the President is not obliged to consult the executive as there is no specific provision
for such consultation.53 The above decision was explained in Special Reference No. 1 of
1998,54 wherein it was held that the opinion of the Chief Justice means the opinion formed in
consultation with a collegium of Judges which should consist of atleast four senior most
Judges, and the views of individual Judges in the collegium should be in writing and the
recommendation should be based on consensus.
(iii) In the case of non-appointment of a recommendee of the Chief Justice of India, if there are
positive materials indicating his appointment to be otherwise unsuitable, the Chief Justice of
India does not have primacy to persist for appointment of that recommendee. The following
are the circumstances where non-appointment of a recommendee could be permissible: (a)
Non-appointment of any one recommended on the ground of unsuitability must be for good
reasons, disclosed to the Chief Justice to enable him to reconsider and withdraw his
necessary to withdraw his recommendation even thereafter, but the other Judges of the
withdrawn, the non-appointment of that person, for reasons to be recorded may be permissible
in public interest. But, if, on reconsideration, the Chief Justice of India and the Judges who
have been consulted reiterate their opinion and recommend the appointment, then the
appointment of the recommendee ought to be (shall be) made as a matter of healthy
convention. If the tenure of the Judge of the candidate is likely to be unduly short, the
appointment may not be made. Non-appointment for reasons of doubtful antecedents relating
to personal character and conduct would also be permissible. The condition of health or any
such factor relating to the fitness of the candidate for the office may also justify non-
appointment. It was further held that the advice of the Council of Ministers should be in
accordance with the interpretation given by the Supreme Court to Articles 124(2) and 217(1).
According to Granville Austin, in the appointment of Supreme Court and High Court Justices,
the assembly provided that the President should act neither in his discretion nor on the advice
of the council of ministers but in consultation with the Chief Justices and other Justices.55
The decisions in Supreme Court Advocates-on-Record Association and Special Reference

(supra) are severely commented upon by eminent jurist H.M. SEERVAI in his book
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“CONSTITUTIONAL LAW OF INDIA”.56 According to the learned author, the majority

judgment in Supreme Court Advocateson-Record Association is null and void. (Para
25.466 at pp 2936-38).
Learned author and Jurist H.M. SEERVAI said:
Pandian, J. who presided over the 9-Judge Bench failed to instruct his eight brother judges that the majority
judgment was not to be signed till all the judgments are ready, namely, the majority judgment, the concurring
judgments and dissenting judgments and till they had been discussed at one or more meetings and thereafter
delivered in open court and signed. The above said failure of Justice Pandian had three serious consequences.
First, the majority judgment of five judges became null and void for not following the mandatory provision of
Article 145(1) and (5), which are not a matter of form or technicality, but a matter of substance as pointed out
earlier. Secondly, it put the remaining four judges who had heard the matter in an impossible position, for,
they could not comply with the mandatory requirement of Article 145(4) and (5). Since they were under an
obligation to deliver their judgment, they were constrained to write separate judgments without being able to
deliver them in court as required by Article 145(4), which was then reported by the Law Reports. Further, the
fact that the judgment of Justice Verma and his four brother judges was null and void cannot deprive the
judgments of the remaining four judges of their status as judgments laying down the law, notwithstanding that
those judgments could not be delivered with the concurrence of majority of judges who heard the matter.
Pandian, J. and Kuldip Singh, J, in their concurring judgments, answered the questions before the Nine-Judge
Bench in one way and Ahmedi and Punchi JJ answered those questions in the opposite way. The whole object
of referring the two questions to a nine-member judge, namely, to settle the law was frustrated because no law
has been laid down on the two questions referred to that Bench. The third consequence led to a situation
unheard of in the annals of the Supreme Court. The five majority judges could have disregarded the
concurring judgment of Justice Pandian and Kuldip Singh. They did not do so. On the contrary, they
purported to deliver what I can only describe as being “Supplementary Judgments”. It is submitted that it was
not competent for the five judges to deliver supplementary judgments, because, they have signed the majority
judgment on 14 June 1993, and circulated it to four of their judges, they became functus officio except for
correcting accidental slip or obvious omissions. For the five judges to deliver supplementary judgments, they
would have to give notice to the parties that all the nine judges would assemble in open court to hear the
parties on the concurring judgment of Pandian and Kuldip Singh JJ. and on the dissenting judgment of
Ahmedi and Punchi JJ. No such thing was done. Further, at such a hearing, the majority judges would be
constrained to incorporate into their original judgment their answers to the points made to the dissenting
judgments, and this would show that the original judgment of the five judges could no longer be treated as
laying down the law. This result emphasises the illegality of procedure adopted by the five judges who signed
their judgment on 14 June 1993 during vacation and circulated to the four brother judges. …...
Also see the article by A.G. NOORANI “The Judges” case” published in “Statesman”
daily 21-24 November, 1998 and compiled in the book “CONSTITUTIONAL
QUESTIONS AND CITIZENS’ RIGHTS”, Section I, Article No. 11. According to the
learned author, the direction contained in those judgments can be done only through a
proper legislation and through Constitutional amendment and not by adjudication. It is
observed: “Judicial usurpation of power is bad in itself more so when it leads to the
aggrandisement of the power of the Judges concerning themselves. The opinion does not
read as a pronouncement on the law.”
[Art 124.7.4] 1st Proviso: Consultation with Chief Justice of India
1. While the first para of clause (2) relates to consultation in the matter of the Chief Justice of India as
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well as the puisne Judges of the Supreme Court, the 1st Proviso deals exclusively with the
appointment of puisne Judges.
2. The two provisions have to be read together in order to get a complete picture as to the mode of
appointment of all the Judges of the Supreme Court. Read together, the following result are arrived at:
(i) Appointment of the Chief Justice:
In this matter, the President has a discretion to select the persons whom he should consult, within the
prescribed categories of the Judges of the Supreme Court or the High Courts. Hence, there is no bar to
the President’s consulting an outgoing Chief Justice of India as to who should be his successor, but
there is no legal obligation in this behalf as in the matter covered by the 1st Proviso. Nor is there
anything to prevent the President from consulting the puisne Judges of the Supreme Court or of the
High Courts “as the President may deem necessary” even though the appointee would occupy the
highest post in the Indian Judiciary. Usually, the President would consult those Judges who are
themselves aspirants for appointment as Chief Justice.57 The President has a discretion as to the
manner in which such consultation shall take place, if at all.57 But he has no obligation to consult any
specified functionary.58 It is now held that the appointment to the office of the Chief Justice of India
should be the senior most Judge of the Supreme Court considered fit to hold the office. (per majority
in Supreme Court Advocates-on-Record Association v UOI,.59 Justice PANDIAN held that since there
is no separate procedure for appointment of the Chief Justice of Supreme Court and High Court, the
procedure prescribed for appointment of a Judge to the Supreme Court or High Court has to be
followed. According to two other learned Judges, the seniority principle and principle of legitimate
expectation would only push merit to the second place and seniority will have a role to play only when
both candidates are of equal merit. (JUSTICE AHMEDI and PUNCHI). According to JUSTICE
KULDIP SINGH, the selection of Chief Justice of India must be based on objective standards and not
by mere seniority. The learned Judge further held that there is no existing convention of appointing the
senior most puisne Judge as the Chief Justice. The appointment should be based only on merit and
seniority role has no application.60
According to eminent jurist H.M. SEERVAI, the provisions for appointing the Chief Justice of the
Supreme Court and the Chief Justice of the High Court did not call for any discussion as long as the
convention the senior most Judge was appointed Chief Justice. The convention is based on the view
that on the whole the interests of judicial administration are better served by eliminating the exercise
of discretionary power in the appointing authorities, than by the search for the best man.61 Learned
author further says that as long as the convention of appointing the senior most Judge as Chief Justice
of India prevailed, consultation with the Chief Justice would have been an empty formality. (See at p
2921)
(ii) Appointment of the puisne Judges.—
In this case, consultation with the Chief Justice of India is obligatory, though it is permissible for the
President also to consult the other Judges of the Supreme Court or of any High Court or High Courts
as the President “may deem necessary”.
[Art 124.7.5] ‘After consultation with’
1. There is a consensus of opinion that “consultation” does not mean “concurrence”.62 In Supreme
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Court Advocates-on-Record Association case, it was held that the requirement of “prior consultation
with” the superior Judiciary is a logical consequence of having an “independent judiciary” as a basic
feature of the Constitution. If the executive is left to ignore the advice tendered by the Chief Justice of
India in the process of consultation, the very purpose and object of providing “consultation with the
Judiciary” is defeated. It was further observed that the executive is not free to make an appointment
which has not been recommended by the Judiciary. (By Justice Kuldip Singh in the concurring
judgment.) The majority judgment also explained the meaning of the word “consultation”. It was held
that the hue of the word “consultation”, when the “consultation” is with the Chief Justice of India as
the head of Indian Judiciary, for the purpose of the composition of higher judiciary has to be
distinguished from the colour of the same word “consultation” may take in the context of the
executive associated in that process to assist the selection of the best available talent. In the concurring
judgment by Justice Ratnavel Pandian, it was held that the derivative meaning of the word
“consultation” would depend not merely on its ordinary lexical definition, but greatly upon its
contents in which the word or expression is used. The word “consultation” is powerful and eloquent
with meaning, loaded with undefined intonation and it answers all questions and all various tests
including the test of primacy to the opinion of the Chief Justice of India. From the above explanation
given by the learned Judges to the word “consultation”, it means that though it does not amount to
“concurrence”, it is binding on the government except in exceptional cases. The majority decision
further held that in the matter of appointment of Judges to the superior Judiciary, the Constitutional
requirement is that the President is to act in accordance with the advice of Council of Ministers as
provided in Article 74(1), who in turn have to give the advice in accordance with Articles 124(2) and
217(1) as interpreted by court and Article 74(1) is circumscribed by the requirement of Articles 124(2)
and 217(1) and all of them have to be read together.
2. The view held in Gupta’s case that the executive has primacy and the President is not bound to
appoint a person recommended was not approved in later decisions. It was held that no appointment of
any Judge to the Supreme Court or any High Court can be made unless it is in conformity with the
opinion of the Chief Justice and only in exceptional cases and that too for strong cogent reasons
disclosed to the Chief Justice of India, the appointment recommended by the Chief Justice of India
may not be made. If the reasons stated for non-appointment are not accepted by the Chief Justice of
India and the other Judges who are consulted, the President has to appoint the person so recommended
as a healthy convention.63
The meaning and scope of the word “consultation” has come up for consideration before the Supreme
Court in a number of cases, not only in the context of Article 124, but also with respect to Articles
148, 217, 222, 233, 320 and 338. After a discussion of dictionary meaning and earlier decisions of the
Supreme Court, the nine member Bench held by majority that the opinion of Chief Justice of India in
the process of consultation must be given primacy. The relevant principles were summarised as
follows:- (1) The “consultation” with the Chief Justice of India by the President is relatable to the
judiciary and not to any other service; (2) In the process of various Constitutional appointments,
“consultation” is required only to the judicial office in contrast to the other high ranking constitutional
offices. The prior “consultation” envisaged in the first proviso to Article 124(2) and Article 217(1) in
respect of judicial office is a reservation or limitation on the power of the President to appoint the
judges to the superior courts; (3) The “consultation” by the President is “sine qua non” or a condition
precedent to the exercise of the constitutional power by the President to appoint judges and this power
is inextricably mixed up in the entire process of appointment of judges as an integrated process. The
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“consultation” during the process in which an advice is sought by the President cannot be easily
brushed aside as an empty formality or a futile exercise or a mere casual one attached with no sanctity;
(4) The context in which the expression “shall be consulted” is used in first proviso to Article 124(2)
and the expression “shall be appointed” after consultation deployed in Article 217(1) denotes the
mandatory character of “consultation” which has to be and is of binding character; (5) Articles 124
and 217 do not speak in specific terms requiring the President to consult the executive as such, but the
executive comes into play in the process of appointment of judges in the higher echelon of judicial
service by the operation of Articles 143 and 163 of the Constitution. In other words, in the case of
appointment of judges, the President is not obliged to consult the executive as there is no specific
provision for such consultation; (6) The President is constitutionally obliged to consult the Chief
Justice of India alone in the case of appointment of a judge of the Supreme Court as per the mandatory
provision of Article 124(2) and in the case of appointment of a judge of a High Court, the President is
obliged to consult the Chief Justice of the High Court concerned in case the appointment relates to a
judge other than the Chief Justice of the High Court. Therefore, to place the opinion of the Chief
Justice on par with other constitutional functionaries is not in consonance with the spirit of the
Constitution, but against the very nature of the subject matter concerning the judiciary and in
opposition to the context in which “consultation” is required. After having observed that must be full
and effective by Justice Bhagavati in Gupta’s case,64 there is no conceivable reason to hold that such
consultation need not be given primary consideration; (7) the very emphasis of the word “always be
consulted” signifies and indicates that the mandatory consultation should be unfailingly made without
exception on every occasion and at every time by the President with the Constitutional consultees.
Consultation must be to achieve a constitutional purpose and should not be rendered sterile by a literal
interpretation. The process of consultation is to discharge a constitutional trust and not to exercise a
power or right to appoint judges. Thus, consultation is a participatory constitutional function.65 The
words “consultation” and “consult” have also been considered in various cases.66
3. As to the nature of “consultation” required, the Constitution does not lay down any specific mode,
but the view has been taken that since the consultation is a mandatory condition precedent, it should
be “effective” which means that—
(a) The President must disclose all the facts which are necessary for due deliberation by the Chief
Justice of India.67
(b) The Chief Justice must express his opinion on nothing less than a full consideration of the
matter on which he is consulted, upon the relevant facts.67 The opinion of the Chief Justice
must be formed on the basis of opinion expressed by the collegium of Judges which must be in
writing. If the opinion of the Chief Justice of India is not formed as above, it is not binding on
the government. In the case of non-appointment of a recommendee, the President should
disclose with strong cogent reasons why the person is unsuitable, and if the reasons are not
acceptable to the Chief Justice of India and such other Judges who are consulted, the President
must appoint such person. “as a healthy convention”.68
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(c) The quintessence of “consultation” is deliberation. The two parties must exchange their views
and examine the merits of the proposals and counterproposals,69 upon the identical materials.69
The opinion of Chief Justice of India which has primacy in the matter of recommendation for
appointment to the Supreme Court has to be formed in consultation with a collegium of judges. The
Chief Justice and the collegium should take into account views of the senior most judge who came
from the same High Court as the person proposed to be recommended. Views of other Supreme Court
judges, Chief Justice or judges of the High Court or indeed members of the Bar can be taken into
account as the object is to ensure that the best available talent is brought to the Bench.70 It was held in
that case that in the matter of appointment, primacy must be given to the Chief Justice and the earlier
view in Gupta v UOI,71 that the Executive has primacy does not stand scrutiny.72 The opinion which
has primacy is that which has been formed in consultation with the collegium of judges (consisting of
four senior most puisne judges of the Supreme Court).
The Constitution speaks of consultation by the President in three situations in so far as judicial
appointments are concerned. (1) Article 124(2) provides that 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 Court in the State “as the President may deem necessary
for the purpose” (2) The 1st Proviso to Article 124(2) requires that in the case of appointment of a
judge other than Chief Justice, the Chief Justice of India shall be consulted. (3) Article 217(1) provides
that every judge of a High Court shall be appointed by the President by warrant under his hand and
seal after consultation with the Chief Justice of India, the Governor of the State and in case of
appointment of a judge other than Chief Justice, the Chief Justice of the High Court.73 Considering the
importance which the Constitution gives to appointment to the highest echelons of State and Union
Judiciary, it is hard to accept that the obligation which the Constitution imposes upon the President to
consult the authorities named in the particular article, casts no higher duty on the President other than
merely to convey to them what he proposed to do and obtain their answer. It is necessary to notice the
important distinction which the Constitution has made in the matter of consultation under Article
124(2) on the one hand and under the first proviso to that article on the other. While appointing a
judge of the Supreme Court, the President may consult such judges of the Supreme Court and of the
High Court as he may deem necessary for the purpose. As contrasted with the proviso, this provision
shows that there is no obligation on the President, while appointing a Judge of the Supreme Court to
consult any judge or judges of the Supreme Court or the High Court. Since he may or may not consult
them, he has the right to decide upon the nature of consultation, if at all he decides to consult them.
The 1st proviso to Article 124(2) which is in sharp contrast with it, says that in the case of
appointment of a judge of the Supreme Court, other than the Chief Justice, the Chief Justice of India
shall always be consulted. The proviso leaves no option to the President and casts on him a specific
obligation that he shall always consult the Chief Justice of India in making an appointment of a judge
of the Supreme Court. This is founded on the principle that in a matter which concerns the judiciary
vitally, no decision ought to be taken by the Executive without the views of the Chief Justice of India
who, by training and experience, is in the best position to consider the situation fairly, completely and
objectively. But there can be no purposeful consideration of a matter in the absence of facts and
circumstances on the basis of which alone the nature of the problem can be appreciated and the right
decision taken. It must, therefore, follow that while consulting the Chief Justice, the President must
make the relevant data available to the Chief Justice so that he can offer to the President the benefits
of his considered opinion. If the facts necessary to arrive at a proper conclusion are not made available
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to the Chief Justice, he must ask for them because, in casting on the President the obligation to consult
the Chief Justice, the Constitution at the same time must be taken to have imposed a duty on the Chief
Justice to express his opinion on nothing less than a full consideration of the matter on which he is
entitled to be consulted. The fulfilment by the President of his constitutional obligation to place full
facts before the Chief Justice and the performance by the latter, of the duty to elicit facts which are
necessary to arrive at a proper conclusion are part of the same process and are complementary to each
other. The faithful observance of these may well earn a handsome dividend useful to the
administration of justice. Consultation within the meaning of Article 222(1) means full and effective,
not formal or unproductive consultation.74
[Art 124.7.6] Effect of non-consultation
1. Under Article 320(3), where the language is equally mandatory—”shall be consulted”—the

Supreme Court has repeatedly held75 that the word “consult” shows that the object of consultation of
an expert body is to afford proper aid or advise to the Government in exercising its constitutional
power and not to confer any right upon the person as regards whose appointment or punishment the
consultation is prescribed by the Constitution. Hence, even where the Government makes its order
without consulting the Public Service Commission the resultant order of the Government cannot be
held to be null and void.
2. The question is whether the same view may be taken if the President appoints a puisne Judge of the
Supreme Court without consulting the Chief Justice of India at all.
3. If the view taken under Article 320(3) is imported into Article 124(2), lst Proviso, the answer should
be that the appointment shall nevertheless be valid, notwithstanding violation of the Proviso. A
different conclusion has, however, been taken is Seth’s case,76 presumable being prompted by the need
for judicial independence under the parallel provision under Article 222(l) as regards the transfer of a
High Court Judge. There the view has been taken that consultation with the Chief justice is a
mandatory condition precedent to the order of transfer made by the President, so that non-consultation
with the Chief Justice shall render the order “unconstitutional”,76 i.e., void. The provision for
consultation with the Chief Justice of India and in the case of the High Courts, with the Chief Justice
of the High Court was introduced because of the realisation that the Chief Justice is best equipped to
know and assess the work of the candidate and his suitability for appointment as a superior Judge and
it is also necessary to eliminate the political influence even at the initial stage of the appointment of a
Judge since the provisions for securing its independence after appointment were alone not sufficient
for an independent judiciary. Consultation with the Chief Justice of India under the first proviso to
Article 124(2) as well as under Article 217 is a mandatory condition, the violation of which would be
contrary to the Constitutional mandate.
4. This view77 has been followed by some Judges in Gupta’s case,78 relying on the same mandatory
character of the requirement of consultation [in Article 217(l)]. If this view is maintained, the
invalidity of the appointment on the ground of want of effective consultation may be raised not only
by a disgruntled candidate,79 but also by a member of the Bar or a member of the public who would be
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interested in a proper appointment.80 (paras. 17, 25, 141, 430, 609, 973, ibid)
Judicial review in the case of an appointment or a recommended appointment to the Supreme Court or
a High Court is available if the recommendation concerned is not a decision of the Chief Justice of
India and his senior most colleagues, which is constitutionally requisite. They number four in the case
of a recommendation for appointment to the Supreme Court and two in the case of a recommendation
for appointment to a High Court. Judicial review is also available if, in making the decision, the views
of the senior most Supreme Court Judge who comes from the High Court of the proposed appointee to
the Supreme Court have not been taken into account. Similarly, if in connection with an appointment
or a recommended appointment to a High Court, the views of the Chief Justice and senior Judges of
the High Court and of the Supreme Court Judges’ knowledge about the High Court have not been
sought or considered by the Chief Justice of India and his two senior most puisne judges, judicial
review is available. Judicial review is also available when the appointee is found to lack eligibility.81
In that case, the court ruled that in the choice of a candidate suitable for appointment, the opinion of
Chief Justice of India should have the greatest weight as he is best suited to know the worth of the
appointment, the selection should be made as a result of participatory consultative process in which
the Executive should have power to act as a mere check on the exercise of power by the Chief Justice
of India to achieve the constitutional purpose. Thus the Executive element in the appointment process
is reduced to the minimum and any political influence is eliminated.
The court has emphasised that the primary aim must be to reach an agreed decision taking into
account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of
India.
No question of primacy would arise when the decision is reached in this manner, by consensus, without any difference of opinion.
However, if conflicting opinions do emerge at the end of the process, then the primacy must lie in the
final opinion of the Chief Justice of India
unless for very good reasons known to the Executive and disclosed to Chief Justice of India, that the appointment is not considered
to be suitable.
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The court has further emphasised that the primacy of the opinion of the Chief Justice of India in this
context means, in effect, “primacy” of the opinion of the Chief Justice of India formed collectively,
that is to say, after taking into account the views of the senior colleagues who are required to be
consulted by him for the formation of his opinion. The Chief Justice of India is expected to take into
account the views of his colleagues in the Supreme Court who are likely to be conversant with the
affairs of the concerned High Court. The Chief Justice of India may also ascertain the views of one or
more senior judges of that High Court. The majority of the judges has emphasised that this process
would achieve the constitutional purpose of selecting the best available for composition of the
Supreme Court and the High Courts, which is so essential to ensure the independence of judiciary and
to preserve democracy.
5. The, difference in interpretation appears to be explained by the Supreme Court’s concern for
independence of the Judiciary.
[Art 124.7.7] President’s power to override opinion of the Chief justice
1. Absence of consultation must be distinguished from the power of the President to act contrary to the
opinion received from the Chief Justice after due consultation.
2. There is a consensus of opinion that consultation does not mean “concurrence’;82 hence it is
competent for the President to act otherwise than according to the Chief Justice’s opinion or
recommendation.82
It has, however, been observed that in matters concerning the Judiciary, the view of the Chief Justice
of India (because he is the person best informed on the matter) should have a greater weight,83 and
also that if it is established, in a given case, that President has overridden the recommendation of the
Chief Justice on “oblique” or extraneous considerations, the order of the President may be challenged
in court on the ground of mala fides.84 This ground of challenge would include illusory consultation,
non-application of mind by the President to the material facts. Even the Chief Justice’s
recommendation would be open to similar challenge, if he has proceeded on extraneous
considerations.85 The President should not reject the Chief Justice’s recommendations save for strong
and cogent reasons.83
The foregoing view of the minority in Gupta’s case86 has been approved by a subsequent three-Judge
Bench,87 with the recommendation that the following two questions should be referred to a larger
Bench of 9 Judges, so that the opinion of the 4 Judges in Gupta’s case88 could be reviewed. One of
these questions relates to the importance or primacy of the position of the Chief Justice in the process
of “consultation”. Though the case relates to High Court Judges, it would be applicable to the
appointment of Supreme Court Judges.
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In Supreme Court Advocates-on-Record Association v UOI,89 it was held that opinion of the Chief
Justice of India has primacy. It was held that the Constitutional purpose to be served is to select the
best among those available for appointment as Judges of the superior judiciary, after consultation with
those functionaries who are best suited to make the selection. This constitutional purpose would be
best served if the decision is made by consensus without the need of giving primacy to any one of the
consultees on account of any differences remaining between them. The question of primacy of the
opinion of any one of the constitutional functionaries qua the others would arise only if the resultant
of the consultative process is not one reached by consensus……… Legal expertise, ability to handle
cases, proper personal conduct and ethical behaviour, firmness and fearlessness are obvious essential
attributes of a person suitable for appointment as a superior Judge. This object of selecting the best
men to constitute the superior judiciary is achieved by requiring consultation with not only the
judiciary, but also the executive to ensure that every relevant particular about the candidate is known
and duly weighed as a result of effective role assigned to the judiciary and the executive in the process
of appointment of Judges which is the true index for deciding the question of primacy between them,
in case of any differences in their opinion. The answer which best serves this constitutional purpose
would be the correct answer. As the judiciary is best suited and has the best opportunity to assess the
true worth of the candidates, the constitutional purpose of selecting the best available men for
appointment as superior Judge, is best served by ascribing to the Judiciary, as a consultee, a more
significant role in the process of appointment.
The ruling of the Supreme Court in the above case regarding appointment of the High Court judges
has been elaborated and articulated further by another nine Judge Bench in Re. Presidential
Reference.90 The court has now clarified that although the opinion of the Chief Justice of India has
“primacy” in the matter of appointment of a High Court judge, it is not solely the opinion of the Chief
Justice of India alone, but it is “reflective” of the opinion of the judiciary which means that it must
necessarily have the element of plurality in its formation. Therefore, the Chief Justice of India should
form his opinion in regard to a person to be recommended for appointment as a High Court judge in
consultation with his two senior most puisne judges. They would make their decision taking into
account the opinion of Chief Justice of the High Court which “would be entitled to greatest weight”,
the views of the other High Court judges who are conversant with the affairs of the concerned High
Court. All these views should be expressed in writing and conveyed to the Government of India along
with the recommendation.
The court has emphasised that the plurality of judges in the formation of opinion of Chief Justice of
India is an in-built check against the likelihood of arbitrariness or bias. In view of this safeguard,
judicial review of the appointment of a High Court judge is available only on the following
grounds:—
(1) If, in making the decision as regards the appointment of a High Court judge, the views of the Chief
Justice and senior judges of the High Court concerned and of the Supreme Court judges having
knowledge of that High Court have not been sought or considered by the Chief Justice of India and his
two senior most colleagues;
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(2) If the appointee lacks eligibility for appointment as a High Court judge.
But the opinion of the Chief Justice touching the merit of the decision is not justiciable – only the
decision making process is subject to review.91 In Supreme Court Advocates on Record Assn. v UOI,92
the Supreme Court suggested that the following norm in the matter of appointment of judges:—
(a) The Chief Justice of India is expected to ascertain the views of the senior most judge of the
Supreme Court whose opinion is likely to be significant in adjudging the suitability of the
candidate, by reason of the fact that he has come from the same High Court or otherwise.
Article 124(2) is an indication that ascertaining of the views of some other judges of the
Supreme Court is requisite. This ensures that the opinion of Chief Justice of India is not
merely his individual opinion, but an opinion formed collectively by a body of men at the apex
level of the judiciary.
(b) Inter se seniority amongst judges in their High Court and the combined seniority on all India
basis should be kept in view and given due weight while making the appointment from
amongst the High Court judges to the Supreme Court. Unless there is any strong cogent reason
to justify a departure, the order of seniority must be maintained between them while making
their appointments to Supreme Court.
(c) Along with other factors such as proper representation of all sections of the people from all
parts of the country, legitimate expectation of suitable and equally meritorious judges to be
considered in their turn is a relevant factor for due consideration while making the choice of
the most suitable and meritorious amongst them, the outweighing consideration being merit, to
select the best available for the Apex Court.
(d) The opinion of the Chief Justice of India for the purpose of Articles 124(2) and 217(1), so
given, his primacy in the matter of all appointments, and no appointment can be made by the
President under these provisions to the Supreme Court and the High Court, unless it is in
conformity with the final opinion of the Chief Justice of India, formed in the manner
indicated. But, in the case of non-appointment of the recommendee of the Chief Justice of
India, on the basis of positive material indicating his appointment to be otherwise unsuitable,
the Chief Justice of India does not have the primacy to persist for appointment of the
recommendee except in the situation indicated later.
(e) Non-appointment of anyone recommended on the ground of unsuitability must be for good
reasons disclosed to the Chief Justice of India to enable him to reconsider and withdraw his
necessary to withdraw his recommendation, even thereafter, but the other judges of the
withdrawn, the non-appointment of that person, for reason to be recorded, may be permissible
in the public interest. However, if after due consideration of the reasons disclosed to the Chief
Justice of India, the recommendation is reiterated by the Chief Justice of India with the
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unanimous agreement of the judges of the Supreme Court consulted in the matter with reason
for not withdrawing the recommendation, then that appointment as a matter of healthy
convention ought to be made.
(f) In order to ensure effective consultation between all the constitutional functionaries involved
in the process, the reason for disagreement, if any, must be disclosed to all others to enable
reconsideration on that basis. All consultations with everyone involved including all the
judges consulted must be in writing and the Chief Justice of the High Court, in the case of
appointment to the High Court, and the Chief Justice in all cases, must transmit with his
opinion the opinion of all judges consulted by him, as part of the record.
(g) To achieve this purpose and to give legitimacy and greater credibility to the process of
appointment, the process must be initiated by the Chief Justice of India in the case of the
Supreme Court and Chief Justice of the High Court in the case of High Court. This is the
general practice prevailing, by convention followed over the years and continues to be general
rule even now after the decision in S.P. Gupta v UOI.,93 The Executive itself has so
understood the correct procedure notwithstanding the decision in S.P. Gupta’s case (supra)
and there is no reason to depart from it when it is in consonance with the concept of
independence of judiciary.
(h) Adherence to a time-bound schedule would prevent any undue delay and avoid dilatory
methods in the appointment process. On initiation of the proposal by Chief Justice of India or
the Chief Justice of the High Court, as the case may be, failure of any constitutional
functionary to express its opinion within the specified period should be construed to mean the
deemed agreement of the functionary with the recommendation and the President is expected
to make the appointment in accordance with the final opinion of Chief Justice of India. In such
a situation, after the expiry of the specified time within which all the constitutional
functionaries are to give their opinion, the Chief Justice of India is expected to request the
President to make the appointment without any further delay, the process of consultation being
complete.
(i) On the initiation of proposal by the Chief Justice of India or the Chief Justice of the High
Court, as the case may be, copies thereof should be sent simultaneously to all other
constitutional functionaries involved. Within the period of six weeks from the receipt of the
same, the other functionaries must convey their opinion to the Chief Justice of India. In case
any such functionary disagrees, it should convey its disagreement within that period to others.
The others, if they change their earlier opinion, must within a further period of six weeks, so
convey it to the Chief Justice of India. The Chief Justice of India would the form his final
opinion and convey it to the President within four weeks for final action to be taken. It is
appropriate that a memorandum of procedure be issued by Government of India to this effect
after consulting the Chief Justice of India and with the modification, if any, suggested by
Chief Justice of India to effectuate the purpose.
(j) The process of appointment must be initiated well in time to ensure completion at least one
month prior to the date of anticipated vacancy and the appointment should be duly announced
soon thereafter to avoid any speculation or uncertainty. This schedule should be followed
strictly and invariably in the appointment of Chief Justice of the High Court and Chief Justice
of India, to avoid the institution being rendered headless for any significant period. In case of
appointment of Chief Justice of a High Court to the Supreme Court, the appointment of the
successor Chief Justice in that High Court should be made ordinarily within one month of the
vacancy.
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(k) Apart from the well known departures, the appointments to the office of the Chief Justice of
India have by convention been of the senior most judge of the Supreme Court considered fit to
hold the office and the proposal is initiated in advance by the outgoing Chief Justice of India.
The provision of Article 124(2) enabling consultation with any other judge is to provide for
such consultation, if there be any doubt about the fitness of the senior most judge to hold the
office which alone may permit and justify a departure from longstanding convention. For this
reason, no other substantive consultative process is involved. There is no reason to depart from
the existing convention and, therefore, any further norm for the working of Article 124(2) in
the appointment of Chief Justice of India is unnecessary.
(l) In matters relating to appointment in the High Court, the Chief Justice of India is expected to
take into account the views of his colleagues in the Supreme Court who are likely to be
conversant with the affairs of the concerned High Court. The Chief Justice of India may also
ascertain the views of one or more senior judges of that High Court whose opinion, according
to the Chief Justice of India is likely to be significant in the formation of his opinion. The
opinion of the Chief Justice of the High Court would be entitled to the greatest weight and the
opinion of other functionaries involved must be given due weight in the formation of the
opinion of the Chief Justice of India. The opinion of the Chief Justice of the High Court must
be formed after ascertaining the views of at least the two senior most judges of the High Court.
The opinion of Chief Justice of India is “reflective” of the opinion of the judiciary which means that it
must necessarily have the element of plurality in its formation. The opinion of the Chief Justice of
India which has the primacy in the matter of recommendation for appointment to the Supreme Court
has to be formed in consultation with a collegium of judges. Presently and for a long time now, the
collegium consists of two senior most puisne judges of the Supreme Court.
Clarifying certain points arising out of the decision in Supreme Court Advocates on Record Assn. v
UOI,94 the Supreme Court has delivered an advisory opinion on a reference made by the President95
under Article 143. In this opinion, the court has laid down the following propositions in regard to the
appointment of Supreme Court judges.
(1) In making the recommendation for appointment to the Supreme Court, the Chief Justice of India
ought to consult four senior most judges of the Supreme Court. Thus the collegium to make
recommendation for appointment should consist of the Chief Justice and four senior most puisne
judges.
(2) The opinion of all members of the collegiums in respect of each recommendation should be in
writing.
(3) The views of the senior most Supreme Court judge who hails from the High Court from where the
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person recommended comes must be obtained in writing for the consideration of the collegium.
(4) If the majority of the collegium is against the appointment of a particular person, that person shall
not be appointed. The court has gone on to say that:
if even two of the judges forming the collegium express strong views, for good reasons, that are adverse to the appointment of a
particular person, the Chief Justice of India would not press for such appointment.
(5) The following exceptions have now been engrafted on the rule of seniority among the High Court
judges for appointment to the Supreme Court:—
(a) A High Court judge of outstanding merit can be appointed as a Supreme Court judge
regardless of his standing in the seniority list. All that need to be recorded when
recommending him for appointment is that he has outstanding merit.
(b) A High Court judge may be appointed as a Supreme Court judge for good reasons from
amongst several judges of equal merit, as for example, the particular region of the country in
which his parent High Court is situated is not represented on the Supreme Court Bench.
Thus the responsibility to make representations for appointment as Supreme Court judges has been
taken away from the Central Executive and has now been placed on a collegium consisting of the
Chief Justice of India and four senior most puisne judges. The sphere of consultation has thus been
broadened. Before this opinion was delivered, the collegium consisted of the Chief Justice and two
senior most judges. The court has now specifically stated that an opinion formed by the Chief Justice
of India in any manner other than that indicated has no primacy in the matter of appointment to the
Supreme Court and the Government is not obliged to act thereon. The process of consultation among
the members of collegium has now been formalised as every member judge has now to give his
opinion in writing.96
It has to be borne in mind that the principle of non-arbitrariness which is an essential attribute of the
rule of law is all pervasive throughout the Constitution; and adjunct of this principle is the absence of
absolute power in one individual in any sphere of constitutional activity. The possibility of intrusion of
arbitrariness has to be kept in view, and eschewed, in constitutional interpretation, and, therefore, the
meaning of the opinion of the Chief Justice of India, in the context of primacy must be ascertained.
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A homogenous mixture, which accords with the constitutional purpose and its ethos, indicates that it is
the opinion of the Judiciary “symbolised by the view of the Chief Justice of India” which is given
greater significance in the matter of appointments. In other words, the views of the Chief Justice of
India is to be expressed in the consultative process as truly reflective of the opinion of the Judiciary,
which means that it must necessarily have the element of plurality in its formation. In actual practice,
this is how the Chief Justice of India does, and is expected to function so that the final opinion
expressed by him is not merely his individual opinion, but the collective opinion formed after taking
into account the views some other Judges who are traditionally associated with this function… The
opinion of the Judiciary “symbolised by the view of the Chief Justice of India” is to be obtained by
consultation with the Chief Justice of India and it is this opinion which has primacy. It is further held
that no appointment of any Judge to the Supreme Court or to any High Court can be made unless it is
in conformity with the opinion of the Chief Justice of India and only in exceptional cases, for stated
strong cogent reasons, disclosed to the Chief Justice of India indicating that the recommendee is not
suitable for appointment, the appointment recommended by the Chief Justice of India may not be
made, and if in spite of state reasons not being acceptable to the Chief Justice of India and such other
Judges with whom consultation was made, and reiterate their opinion and recommend appointment,
the President shall appoint such person “as a healthy convention”.97
In the matter of appointment, primacy must be given to the opinion of the Chief Justice of India and
the earlier decision in S.P. Gupta’s case98 that the Executive has primacy does not stand scrutiny. The
opinion which has primacy is that which has been formed in consultation with a collegium of judges
consisting of four senior most puisne judges of the Supreme Court.99 The object of “consultation” is to
render its process meaningful, so that it may serve its intended purpose. Consultation requires the
meeting of minds between the parties that are involved in the consultative process on the basic
material facts and points in order to arrive at a correct or at least a satisfactory solution. If a certain
power can be exercised only after consultation, such consultation must be conscious, effective,
meaningful and purposeful. To ensure this, each party must disclose to the other all relevant facts for
due deliberation. The consultee must express his opinion only after complete consultation of the
matter on the basis of all the relevant facts and quintessence. Consultation may have different meaning
in different situation depending upon the nature and purpose of the statute.
Consultation or deliberation can neither be complete nor effective before the parties thereto make their
respective points of view known to the other or others and discuss and examine the relative merits of
their views. If one party makes a proposal to the other, who has a counter-proposal in mind, which is
not communicated to the proposer, a direction to give effect to the counter-proposal without any
further discussion with respect to such counter-proposal with the proposer, cannot be said to have been
issued after consultation.
The meaning of “consultation” varies from case to case depending upon its fact situation and context
of the statute as well as the object it seeks to achieve. Thus, no straight-jacket formula can be laid
down in this regard. Ordinarily, consultation means a fair and free discussion on a particular subject,
revealing all materials that the parties possess in relation to each other and then arriving at a decision.
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However, in a situation where one of the consultees has prima facie opinion under the statute either
specifically contained in a statutory provision or by way of implication consultation may mean
“concurrence”. The court must examine the fact situation in a given case to determine whether the
process of consultation as required under particular situation did in fact stand complete.
Where the consultee has primacy in the consultation process e.g., where the Chief Justice of the High
Court has primacy in the consultative process, as in the case of under 3, the Chief Justice can send
only one name and not a panel of names for consideration, or else, the word “primacy” would have no
significance. If the Chief Justice sends a panel of names and the Governor selects one from them, then
it would obviously become the primacy of the Governor and would not remain as primacy of the Chief
Justice which is the requirement under the law. When the Chief Justice has primacy of opinion, the
opinion of Chief Justice must be accepted, except for cogent reasons and the term “consultation” for
such purpose shall mean “concurrence”.1
In its 121st Report in 1987, the Law Commission suggested for setting up a National Judicial
Commission and tentatively it suggested that its members should be the Chief Justice of India (as
Chairman), three senior most Judges of the Supreme Court, retiring Chief Justice of India, three Chief
Justices of High Courts according to their seniority, Minister of Law and Justice, Government of
India, Attorney General and an outstanding law academic. The Report shows that in appointment to
superior Judiciary, the role of the executive should be very minimum. But, so far it has not been
implemented. But the decision in Supreme Court Advocates-on-Record Association v UOI,2 and the
opinion in Re. Presidential Reference,3 has effectively controlled the influence of executive in the
appointment of Judges in superior Judiciary.
[Art 124.7.8] Evidence as to mala fides, non-consultation and the like
In all cases of allegation of mala fides against the Government, the greatest hurdle in the way of the
Petitioner is that while the onus of proving mala fides, which is heavy, is on the Petitioner, all the
materials on which such charge may be established are in the possession of the Government. The non-
disclosure of the documents relating to what advice was tendered by the Council of Ministers to the
President is, again, barred by Article 74(2), so that judicial scrutiny of these documents is excluded.4
The result is that the court is barred from inquiring into the grounds which weighed with the Council
of Ministers in advising the President in taking the action which is impugned by the petitioner.5
The rigours of the foregoing bar appears to have been relaxed by the Supreme Court in two directions:
(a) If the required documents or materials have been, in fact, published or produced by the
Government, the bar would be lifted.5
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(b) Though the court cannot compel production of the documents which would show what advice
was tendered by the Council of Ministers, “the materials on which the advice was tendered by
the Council of Ministers” or “the materials on which the reasoning of the Council of Ministers
was based”6 are not protected by the exclusionary rule under Article 74(2). Upon this ground,
the Supreme Court, in the High Court Judge’s6 case, compelled the Government to produce
the correspondence which was exchanged between the Law Minister of the Government of
India, the Chief Justice of India and the Chief Justice of the High Courts concerned (paras. 57
and 85) because it is this correspondence which “formed the decision of the Central
Government”. It is to be noted that it is on the basis of these letters, after their production by
the Government of India, that the cases of renewal of some Additional Judges’ term and of the
transfer of some Chief Justices of High Courts were considered to find whether there was
effective consultation as required by Article 222,—though, eventually, the Petitions were
dismissed on the merits, by different combinations of Judges who formed the majority on
either question.
Since only FAZAL ALI, J. had dissented from the order requiring the Government to produce the
aforesaid correspondence (para. 431), it must be taken that the 6 foregoing exception to Article 74(2)
had the concurrence of 6:1 Judges in Gupta’s case.
[Art 124.7.9] Whether Article 16(4) applies to appointment of a Judge under Article 124(2)
1. The provision in Article 16(4) for reservation for members of the backward classes does not apply
to the appointment of a Judge of the Supreme Court or a High Court, because the Judges of these
superior courts hold a “constitutional office”.7 They are not “government servants’;7 nor do they hold
any “appointment or post” under the State.8
Secondly, the provisions in Articles 124 and 217 are special provisions regarding the appointment of
particular offices, to which the general provisions in Articles 15(4) and 16(4) should not be applicable.
Thirdly, Article 16(4) is only an enabling provision and does not create any right.9
2. It follows that if the person appointed possesses any of the qualifications specified in clauses (2)-(3)
of Article 124 and he is deemed fit for appointment by the President in consultation with the Chief
Justice of India, the appointment cannot be challenged on the ground that the claim of members of the
Scheduled Castes and Tribes was not considered.8
See the article “Merit in the appointment of Judges” by PROF. M.P. SINGH, University of Delhi,10
where the learned author concludes by saying that “our Constitution has set certain goals to be
achieved through the process of law and one such goal is not only to protect the weaker sections of the
society, particularly the Scheduled Castes and Scheduled Tribes and women, but also their
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representation and participation in the law making process. Merit in the appointment of Judges,
therefore, takes account of this goal”.
As per Article 124(2), every judge of the Supreme Court shall be appointed by President by warrant
under his hand and seal “after consultation” with such of the judges of the Supreme Court and of the
High Court in the State “as the President may deem necessary for the purpose”. The expression
“judge” in Article 124(2) includes the Chief Justice of India.11 The expression “President” in Article
124(2) when read in conjunction with Article 217(1) and Article 74(1) makes the President to act on
the advice of the Council of Ministers with the Prime Minister as the head. The Prime Minister and the
Council of Ministers are bound to tender the advice in accordance with the interpretation given by the
Supreme Court to Articles 124(2) and 217(1). As per the provision in Article 124(2) in the case of
appointment of judges, other than the Chief Justice, the Chief Justice shall always be consulted. The
adherence to the proviso is mandatory. It would be clear that the Chief Justice of India’s role is of
critical importance in the matter of appointment to the Supreme Court. Consistent with constitutional
purpose and process, it becomes imperative that the role of the institution of the Chief Justice of India
is recognised as of critical importance in the matter of appointment to the Supreme Court and the High
Court of States.12
[Art 124.7.10] Analogous Provision
The Chief Justice of India is to be consulted in the matter of appointment of a High Court Judge
[Article 217, post], and of his transfer from one High Court to another [Article 222, post].13
[Art 124.7.11] Retirement
The age of “superannuation” of a Supreme Court Judge is 65, under this Clause.
[Art 124.7.12] Resignation
A Judge of the Supreme Court may, at any time, before superannuation or removal, resign his office
by addressing the President in writing to that effect. Acceptance of the resignation is not necessary to
make it effective. Article 217(1) proviso (a) which deals with resignation by High Court Judges is
identical with this clause which enables a Supreme Court Judge to resign. In UOI v G.C. Misra,14 it
was held that High Court Judge can withdraw his resignation before its becoming effective. A
prospective resignation can be withdrawn, but not when the resignation is in presenti. It was held that
Constitution does not bar such withdrawal.
[Art 124.7.13] Removal
A Judge may be removed, at any time before superannuation or resignation, by the process of
impeachment, as provided for in clause (4), below.
[Art 124.8] Clause (2A): Determination of age
This Clause is analogous to clause (3) of Article 217 in so far as the object of both the provisions is to
take away the jurisdiction of courts to determine the age of a Judge of a superior court. But while in
the case of a Judge of a High Court, the power to determine the question is vested in the President,
deciding after consultation with the Chief Justice of India, in the case of a Judge of the Supreme
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Court, the Constitution does not provide the procedure but leaves it to Parliament to prescribe the
machinery by making a law.
Since no such law has been made so far, there is an obvious anomaly as there is no machinery for
compulsorily retiring a Judge, on a ground similar to that in J.P. Mitter’s case,15 if he somehow
succeeds in getting a lift to the Supreme Court. The power to determine the age of a Supreme Court
Judge is a judicial power.16
[Art 124.9] CLAUSE (3) (A) U.S.A.—
Article II, section (2) of the Constitution provides that the President:
shall have power by and with the advice and consent of the Senate,……to appoint Judges of the Supreme Court……
Besides this, the Constitution does not contain any provision laying down the qualifications for being
appointed a Judge of the Supreme Court with the result that the President is free to appoint any person
as a Judge of the Supreme Court who is not objected to by the Senate. If the President and the Senate
belong to the same party, it is natural that the appointment will be influenced by party considerations.
Though usually Judges of the Supreme Court are recruited from the legal profession, there is no bar to
a non-lawyer being appointed. Even non-practising lawyers can be appointed as Judges of the
Supreme Court. Felix Frankfurter is a living example. He was a teacher in law at Harward before his
appointment as Judge of the Supreme Court. Anyone who reads his decisions is struck by his ability
and deep knowledge in law.
(B) England.—
Judges of the High Court are appointed by the Crown on the recommendation of the Lord Chancellor,
who usually consults the Prime Minister. The appointment of High Court Judges is, as a rule, confined
to the Bar. Constitutional Reform Act, 2005, provides a procedure for selection of High Court Judges.
(C) Japan.—
Judges of the Japanese Supreme Court are drawn from various sources. The Constitution itself does
not lay down any requisite qualifications. About one-third of the Judges now are “career Judges”.
“The rest are men who have distinguished themselves as attorneys, practitioners of Constitutional or
Administrative Law, professors of law or diplomats.”17
(D) West Germany.—
(a) Judges of the Federal Constitutional Court are appointed half by the Bundestag and half by the
Bundesrat. They must not be members of the Executive or Legislature of the federal or Land
Governments. (b) 50% of the Judges of the Federal Supreme Court are appointed by a joint body
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composed of the federal ministers of justice, ministers of justice of the Lands, and 50% are elected by
the Bundestag.
The tenure and other conditions of service of federal judges are to be regulated by federal legislation.
(Articles 94-96)
[Art 124.10] INDIA [Art 124.10.1] Qualifications for appointment as Judge of Supreme Court
It is to be noted that while in the case of the High Court [Article 217(2)], only two classes of persons
are eligible for appointment as a Judge, namely, members of the Bar or the Bench, in the case of the
Supreme Court, the present Clause lays down an additional criterion, namely, that of being a
“distinguished jurist” [sub-clause (c)]. This sub-clause has been rendered otiose during the first four
decades of the Constitution, for, not a single person appears to have been appointed solely on the
basis of this qualification. The study of law being so long confined to the profession, it will naturally
take some time to give proper recognition to true academicians in the science of law. This much is
certain, however, that the infusion of academic jurists of the right order into the highest tribunal may
lead to its enrichment. It is not usually taken with warmth simply because it is a new experiment in
India. In India, many would be astounded with the observation of FRANKFURTER, J., himself an
eminent Judge of the American Supreme Court,
one is entitled to say without qualification that the correlation between prior judicial experience and fitness for the functions of the
Supreme Court is zero.18
Even though the above observation may not be literally true of India, it can be safely submitted that
for the highest tribunal of the land, a solid foundation of the highest juristic principles is no less
important than mature experience of the procedure in courts. It may be mentioned, in this connection,
that the superior Judiciary in both France and West Germany is recruited exclusively from academic
jurists, having no judicial experience at all.
It is not suggested above that the entire composition of our Supreme Court should be similar, but that
the composition should be balanced by having some academic jurists, as prescribed by the
Constitution itself.19
A person to be appointed as Supreme Court judge should be a citizen of India. In addition, he may
have been – (a) either a judge of the High Court (or High Courts) for five years; (b) an advocate of the
High Court (or High Courts) for ten years; or (c) may be in the opinion of the President, a
distinguished Jurist. (Article 124(3)).
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It is thus possible to appoint an eminent non-practising, academic lawyer to the Supreme Court. This
provision has been inspired by the American example where distinguished law-teachers have been
appointed to the Supreme Court and they have proved to be successful judges. At times, a non-
practising lawyer-judge might be in a better position, because of his breadth of outlook and freedom
from a narrow and technical approach to law, to deal with problems of public law. While there have
been two appointments to the Supreme Court directly from the Bar, till now, however, no jurist as
such has been appointed as a Supreme Court judge.
The court considered the question of primacy of the opinion of the Chief Justice of India in regard to
the appointment of Supreme Court judges. The Court emphasised that the question has to be
considered in the context of achieving “the Constitutional purpose of selecting the best” suitable for
the composition of the Supreme Court “so essential to ensure the independence of judiciary and
thereby to preserve democracy”.20 Referring to the “consultative” process envisaged in Article 124(2)
for appointment of Supreme Court judges, the court said that this procedure indicates that the
Government does not enjoy the “primacy” or “absolute discretion” in the matter of appointment of
Supreme Court judges. The court has pointed out that the provision for consultation with the Chief
Justice was introduced because of the realisation that the Chief Justice is best equipped to know and
assess the worth of the candidate and his suitability for appointment as a Supreme Court judge, and it
was also necessary to eliminate political influence.
The court has also emphasised that the phraseology used in Article 124(2) indicates that it was not
considered desirable to vest absolute discretion or power of veto in the Chief Justice as an individual
in the matter of appointment, so that there should remain some power with the Executive to be
exercised as a check whenever necessary. Accordingly, the court observed:
The indication is that in the choice of a candidate suitable for appointment, the opinion of the Chief Justice of India should have a
greater weight; the selection should be made as a result of participatory consultative process in which the Executive should have
power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the
Executive element in the appointment process is reduced to the minimum and any political influence is eliminated. It is for this
reason that the word “consultation” instead of “concurrence” was used, but that was done merely to indicate that the absolute
discretion was not given to anyone, nor even to the Chief Justice of India as an individual.
Thus, in the matter of appointment of a Supreme Court judge, the primary aim ought to be to reach an
agreed decision taking into account the views of all the consultees giving the greatest weight to the
opinion of the Chief Justice. When decision is reached by consensus, no question of primacy arises.
Only when conflicting opinions emerge, at the end of the process, the question of giving primacy to
the opinion of Chief Justice arises
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unless for very good reasons known to the Executive and disclosed to the Chief Justice of India that the appointment is not
considered to be suitable.
The court has further clarified that the “primacy of the opinion of the Chief Justice of India” is in
effect “primacy of the opinion of the Chief Justice of India” formed collectively, that is to say, after
taking into account the views of his senior colleagues who are required to be consulted by him for the
formation of his opinion.
Explaining upon this aspect further, the court has said that:
the principle of non-arbitrariness is an essential attribute of the Rule of Law and is all pervasive throughout the Constitution. An
adjunct to this principle is “the absence of absolute power” in one individual in any sphere of constitutional activity. Therefore, the
meaning of the “opinion of the Chief Justice” is reflective of the opinion of the judiciary. The final opinion expressed by the Chief
Justice is not merely his individual opinion, but the collective opinion formed after taking into account the views of some other
judges who are traditionally associated with this function.
The court has laid down the following propositions in relation to the appointment of a Supreme Court
judge:—
(1) Initiation of the proposal for appointment of a Supreme Court judge must be by the Chief
Justice of India.
(2) In exceptional cases alone, for stated and cogent reasons disclosed to the Chief Justice
indicating that the person who was recommended is not suitable for appointment, that
appointment recommended by the CJI may not be made. However, if the stated reasons are not
accepted by CJI and other Supreme Court judges who have been consulted in the matter on
reiteration of the recommendation of CJI, the appointment should be made as a healthy
convention.
(3) No appointment of any judge to the Supreme Court can be made by the President unless it is in
conformity with the final opinion of the Chief Justice formed in the manner indicated above.
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(4) As the President acts on the advice of the Council of Ministers in the matter of appointment of
a Supreme Court judge, the advice of the Council of Ministers is to be given in accordance
with Article 124(2) as interpreted by the Supreme Court.
(5) All consultations with everyone involved including all the judges consulted must be in writing.
Expression of opinion in writing is an in-built check on exercise of the power and ensures due
circumspection.
(6) Appointment to the office of Chief Justice of India ought to be of the senior most judge of the
Supreme Court considered fit to hold the office. The provision in Article 124(2) enabling
consultation with any other judge is to provide for such consultation, if there is any doubt
about the fitness of the senior most judge to hold the office which alone may permit and
justify a departure from the longstanding convention, i.e., to appoint the senior most Supreme
Court judge to the office of Chief Justice of India.
(7) Inter se seniority amongst the judges in their High Court and their combined seniority on all
India basis
should be kept in mind and given due weight while making appointments from amongst High Court judges to the Supreme Court.
Unless there be any strong cogent reasons to justify departure, that order of seniority must be maintained between them while
making their appointment to the Supreme Court. 21
[Art 124.10.2] Clause (3) (a): ‘High Court’
This expression includes not only the High Court of a State22 but also that of a Union Territory. This
follows not only from the definition of a “High Court” in Article 377(14), but also from Explanation I
appended below Article 124(3) itself, for, the High Court of a Union Territory exercises the
jurisdiction of a High Court over “a part of the territory of India.”22 In that case, it was held that the
principle of reservation will not apply and merit alone should be the basis for appointment. It was
observed that Judges of superior judiciary are not employees of the Union or State and they are
Constitutional functionaries.
[Art 124.10.3] ‘Has been’
These words which are used in sub-clauses (a) and (b) of clause (3) of Article 12423 are to be
distinguished from the present tense “is”. Hence, there is no bar to a retired24 High Court Judge being
appointed a Judge of the Supreme Court provided he had, before his retirement, held the office of a
High Court Judge for not less than 5 years.
[Art 124.10.4] Clause (3)(b) :
“A High Court” means any High Court and not that very High Court only where the Judge is to be
appointed.25 It should also include the Supreme Court. Otherwise an Advocate who has practised in
the Supreme Court could not be a Judge of the Supreme Court.26
[Art 124.10.5] Clause 3(c):
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Under this clause, it is possible to appoint an eminent non-practising academic lawyer to the Supreme
Court. This provision is inspired by the American example where distinguished law teachers are often
appointed to the Supreme Court and have proved to be successful Judges.27 At times a non-practising
lawyer Judge might be in a better position because of his breadth of outlook and freedom from a
narrow and technical approach to law, to deal with problems of public law.28 These are precedents in
USA of non-practising lawyers being appointed Judges of Supreme Court. Felix Frankfurter is a living
example. He was a teacher of law at Harward before his appointment in the Supreme Court. Though
our Constitution enables an eminent Jurist being appointed as a Judge of the Supreme Court, so far no
such appointment is made.
The Supreme Court has laid stress on the qualities a Judge should possess such as rectitude,
impartiality and independence.29 In Aswini Kumar Ghose v Arbinda Bose,30 Hon’ble Supreme Court
hinted the desirability of the formulation of a code of judicial ethics and etiquette.
[Art 124.10.6] Explanation I :
This definition of “High Court” is a special definition which governs only sub-clauses (a)-(b) of clause
(3) of Article 124. For the meaning of “High Court” in other Articles of the Constitution, e.g., Article
214 et seq., see the general definition in Article 366(14), post.
[Art 124.11] CLAUSES (4)-(5) [Art 124.12] OTHER CONSTITUTIONS (A) U.S.A.—
Judges of the Supreme Court hold office during good behaviour [Article III, section 1] and are
removable like other federal civil officers by the process of impeachment (Article II, section 4). What
is “good behaviour” is not defined in the Constitution and is accordingly left to the Senate which tries
the impeachment.
In the course of proceedings, then Representative Gerald Ford argued that the grounds of
impeachment were “whatever a majority of the House of Representatives considers them to be at a
given moment in history”.31 They may be removed from office on Impeachment for and conviction of
Treason, Bribery or other high crimes and misdemeanour. The practical reality of impeachment is that
it is a device to remove a person from an office of public interest upon the occurrence of any
behaviour, criminal or not, that amounts to a serious abuse or breach of public trust.32
A Judge cannot be impeached merely because a decision has been rendered declaring a legislation as
invalid.33
Till now, there has been only one impeachment of a Supreme Court Judge—that of Samuel Chase in
1804, but that case resulted in acquittal. It is broadly acknowledged that this acquittal has established
that a Judge cannot be impeached merely on political grounds and his acquittal is generally regarded
as having cemented the principle of independent judiciary and it is politically unthinkable that a
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justice could be impeached and convicted for solely political reasons.34
As a practical matter, standard for impeachment may differ as between judges and executive official
such as the President. The President may be removed by election and in any case cannot serve longer
than eight years. While that is certainly long enough to perform considerable mischief, the miscreant
federal judge can wreak havoc for a lifetime. Only two Presidents - Andrew Johnson and Bill Clinton
have been impeached. Both survived the Senate trial, even though there was considerable partisan
desire in both cases to remove the President. However, both President Johnson and Clinton were
weakened by the failed impeachment proceedings. Supreme Court judges, like any other federal
officials, can be impeached and removed from office. The Jeffersonians tried this against Samuel
Chase in 1804-1805 with the idea that, if they were successful, Chief Justice Marshall would be next.
However, it flopped and a similar effort failed to depose President Andrew Johnson in 1868
enthusiastic use of impeachment for political purpose faded completely.
On the other hand, the successful impeachment of several Federal Judges in the 20th century has
established that want of good behaviour, for the purposes of impeachment need not necessarily be an
indictable offence, though it must be some misconduct.35
A Judge who is removed by impeachment shall be disqualified to hold and enjoy any office of honour,
trust or profit under the “United States”. [Article I, section 3(7)]
(B) England.—
Under the Act of Settlement, 1701, Judges of the Supreme Court hold office during “good behaviour”
and they can be removed by the Crown only on a joint address moved by both Houses of Parliament.
This provision was reiterated in the Supreme Court of Judicature (Consolidation) Act, 1925 and the
Appellate Jurisdiction Act, 1876, and now by the Supreme Court Act, 1981.
An address to the Crown for the removal of a Judge must originate in the House of Commons. The
procedure is judicial and the Judge is entitled to be heard. Such a motion is an extreme step, to be
taken only in the event of “impropriety of the gravest kind”.36
Judges of the “superior” court may not be removed except for misbehaviour in their office or probably
conviction of some serious offence. Removal is by the Crown. Removal may be on an address by both
the Houses of Parliament, but it is not certain whether such an Address is necessary.37 According to
BRADLEY, the statutory rules clearly prevent a judge being removed at the pleasure of the Crown,
but their meaning is not wholly certain. The wording of the provision in the Act of Settlement from
which these rules derived, suggests that the intention of Parliament was that, while a Judge should
hold office during good behaviour, Parliament itself should enjoy an unqualified power of removal.
Assuming that there was no intention to alter the effect of the Act of Settlement by the revised
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wording now contained in the Supreme Court Act, 1981, it is theoretically possible for a judge to be
dismissed not only for misconduct, but for any other reason which might induce both Houses to pass
the necessary address to the Crown. It is, however, extremely unlikely that the Parliament would be
willing to pass an address from any motive other than to remove a judge who had been guilty of
misconduct.38 According to learned author John Alder, there is an alternate interpretation to the
relevant provision of Supreme Court Act [Section 11(3)] which means that the Crown can dismiss a
Judge for misbehaviour without an address from Parliament, but on an address, a Judge can be
dismissed irrespective of misbehaviour.39
(C) Canada.—
Judges of the Superior Courts are removable on an Address from both Houses praying for such
removal, to the Governor-General. (Section 99, British North America Act)
(D) Australia.—
Judges of the Superior Courts are removable by the Governor General in Council on an Address from
both Houses praying for such removal on the ground of “proved misbehaviour or incapacity”. [Section
72(ii)]
(E) Eire.—
Art 35(4) of the Constitution of 1937 provides:
4. (1)A Judge of the Supreme Court or the High Court shall not be removed from office except for stated misbehaviour or
incapacity, and then only upon resolutions passed by Dail Eireann and by Seanad Eireann calling for the removal.
(2) The Taoiseach shall duly notify the President of any such resolution passed by Dail Eireann and by Seanad Eireann, and
shall send him a copy of every such resolution certified by the Chairman of the House of the oireachtas by which it shall
have been passed.
(3) Upon receipt of such notification and of copies of such resolutions, the President shall forthwith, by an order under his
hand and seal, remove from office the Judge to whom they relate.
(F) Japan.—
The Constitution of Japan prescribes three methods for the removal of a Judge of the Supreme Court:
(a) Judicial declaration of incapacity. (b) Impeachment. (c) Dismissal by popular vote.
Article 78 provides:
Judges shall not be removed except by public impeachment unless judicially declared mentally or physically incompetent to
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perform official duties. No disciplinary action against judges shall be administered by any executive organ or agency.
The method of impeachment is dealt with by Article 64:
The Diet shall set up an impeachment court from among the members of both Houses for the purpose of trying those judges against
whom removal proceedings have been instituted.
Matters relating to impeachment shall be provided by law.
Impeachment lies for wanton acts, neglect of duty, gross misconduct and degrading the dignity of the
court. Since 1947 three Judges have been impeached, of whom one has been dismissed from service
(1956).
The provision for recall of Judges of the Supreme Court by popular vote is a novel institution. Article
79 runs thus:
The appointment of the judges of the Supreme Court shall be reviewed by the people at the first general election of members of the
House of Representatives following their appointment, and shall be reviewed again at the first general election of members of the
House of Representatives after a lapse of ten (10) years, and in the same manner thereafter.
In cases mentioned in the foregoing paragraph, when the majority of the voters favours the dismissal of a judge, he shall be
dismissed.
Matters pertaining to the review shall be prescribed by law.
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The effect of the above provision is that the appointment of Judges of the Supreme Court, though
made by the President on the advice of the Cabinet, is subject to approval of the people at the next
general election. The people have also got the right of reviewing the appointment every ten years and
to dismiss those Judges who fail to secure the majority vote at the election.40 There is a view that this
provision for popular review has undermined the respect of the people for the Judges41 and the
independence of the Judiciary.42
(G) West Germany.—
Under the West German Constitution, the Legislature is empowered to set an age of retirement for
Judges and they can be removed from office before that age only under the “authority of a judicial
decision and only on grounds and in the form provided for by law.” [Article 97(2)]
[Art 124.13] INDIA [Art 124.13.1] Removal of Supreme Court Judges
The Constitution does not prescribe any fixed tenure for the office of a Supreme Court Judge. Once
appointed the office of a Judge of the Supreme Court may terminate only in one of three ways—(i) on
attaining the age of 65 years. (ii) on resignation in writing addressed to the President. (iii) on removal
by the President upon an Address by each House of Parliament.
The Address may be presented only on the ground of “proved misbehaviour” or “incapacity”.43 The
Address must be presented by both Houses in the same session, and a special majority 43 is required in
each House for the passing of the resolution. It must be passed by not less than a two-thirds of the
members present and voting, which, again, must be a majority of the total membership of the House.
The procedure for presentation of the address, investigation and proof of the misbehaviour and
incapacity are left to legislation by Parliament [clause (5)]. If the address of both Houses be in
conformity with these Clauses the President shall be bound to remove that Judge.44
The foregoing provisions of the Constitution are to be read with those of the Judges (Inquiry) Act,
1968 (see p 5598).
The Constitution does not permit any action by any agency other than the initiation of action under
Article 124(4) by Parliament. Articles 124(4) and 121 would put the nail squarely on the projections,
prosecutions or attempts by any other forum or group of individuals or association or otherwise, either
to investigate or inquire into or discuss the conduct of a Judge or the performance of his duties and
on/off court behaviour except as per the procedure provided under the Articles 124(4) and (5) of the
Constitution, the Judges (Inquiry) Act, 1908 and the Rules framed thereunder. Removal of a Judge by
forced resignation is unconstitutional which affects the independence of Judiciary. Bar Council or Bar
Association is not entitled to pass a resolution demanding a Judge to resign. Allowing adoption of
such demands by collective pressure rudely shakes the confidence and competence of Judges of
integrity, ability, moral vigour and ethical firmness, which in turn, sadly destroys the very foundation
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of democratic polity.
When a Judge cannot be removed by impeachment process, but his conduct generates widespread
feeling of dissatisfaction among general public, the question would be, who would stamp out the rot
and judge the Judge or who would impress upon the Judge either to desist from repetition or to demit
the office in grace?
As per the proviso to Article 124(2), a judge can be removed in the manner prescribed by Article
124(4). The President cannot, on his own, remove a judge of the Supreme Court. Therefore, the
repository of this power is not in the President alone, but is exercised after an address by each House
of Parliament supported by a majority of the total membership of that House and by a majority of the
total membership of that 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 is presented to the
President.45 Article 124(4) and Article 121 would put the nail squarely on the projection or attempt by
any other form or group of individuals or association, statutory or otherwise, to either investigate or
enquire into or discuss the conduct of a judge or the performance of his duties and on/off court
behaviour except as per procedure provided under Article 124(4) and (5) of the Constitution, the
judges (Inquiry) Act, 1968 and the Rules. Article 124(4) of the Constitution sanctions action for
removal of a judge on proved misbehavior or incapacity. The word “misbehavior” was not advisedly
defined. It is a vague and elastic word and embraces within its sweep different facets of conduct as
opposed to good conduct.46 Proving of misbehavior of a judge is a condition precedent before the
speech of the President. In terms of clause (5), Parliament is empowered to regulate the procedure for
the presentation of an address and for investigation and proof of the misbehavior or incapacity of a
judge under clause (4). In addition to these foolproof provisions, it was observed and suggested in Re.
Mulgaokar, S.47 that neither our Constitution nor our law conceivably be infringed, if judges were to
devise means to prevent situation arising in which an accusing finger could be raised against the
conduct of the judge, whether inside or outside the court, let alone involving constitutional provisions
of Article 124 for his removal. Procedure contemplated under Article 124 (5) is to be governed by the
judges Inquiry Act, 1968. Process for impeachment started in accordance with this Act does not lapse
on the dissolution of the House of People. The Scheme of clauses (4) and (5) of Article 124 is that the
entire process of removal is in two parts – the first part is under clause (5) from initiation to
investigation and proof of misbehavior or incapacity is covered by an enacted law. Parliament’s role
being only legislative as in all laws enacted by it, and the second part after proof under clause (4) is in
Parliament, that process commencing only on proof in accordance with the law enacted under clause
(5). Thus, the first is entirely statutory and the second part is the parliamentary process.48
Process for removal of a judge being a parliamentary process cannot be interfered judicially until it
has culminated in the removal of judge. After such culmination, the statutory part of the process by
which a finding of guilt is made by the Inquiry Committee is subject to judicial review on permissible
grounds and that too only at the instance of aggrieved judge.49 Alleged misbehaviour on the part of the
judge and framing of charges on him pertaining to the period of his holding the office of the judge of
the High Court, if proved, would remain germane and would not cease to exist on his elevation to the
Supreme Court.50
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Where the complaint relates to the Judge of the High Court, the Chief Justice of that High Court, after
verification, and if necessary, after confidential enquiry from his independent source, should satisfy
himself about the truth of the imputation made by the Bar Association, through its office-bearers
against the Judge and consult the Chief Justice of India, where deemed necessary by placing all the
information to him. When the Chief Justice of India is seized of the matter, to avoid embarrassment to
him and to allow fairness in procedure to be adopted in furtherance thereof, the Bar should suspend all
further action to enable the Chief Justice of India to appropriately deal with the matter. This is
necessary because any action he may take must not only be just, but also appear to be just to all
concerned, i.e., it must not even appear to have been taken under presume from any quarter. The Chief
Justice of India, on receipt of information from the Chief Justice of the High Court, after being
satisfied about the correctness and truth touching the conduct of the Judge, may tender such advice
either directly or may initiate such action as it deemed necessary or warranted under given facts and
circumstances. If circumstances permit, it may be salutary to take the Judge into confidence before
initiating action. On the decision being taken by the Chief Justice of India, the matter should rest at
that. This procedure would not only facilitate nipping in the bud the conduct of a Judge leading to a
loss of public confidence in the courts and sustain public faith in the efficacy of the rule of law and
respect for the Judiciary, but would also avoid needless embarrassment of contempt proceedings
against the office bearers of the Bar Association and group libel against all concerned. The
independence of the judiciary and the stream of public justice would remain pure and unsullied. The
Bar Association could remain a useful arm of the Judiciary and in the case of sagging reputation of the
particular Judge; the Bar Association could take up the matter with the Chief Justice of the High Court
and await his response for the action taken thereunder for a reasonable period. In case of allegations
against the Chief Justice of a High Court, the Bar Council brings them directly to the notice of the
Chief Justice of India. On receipt of such complaint, the Chief Justice of India would, in the same
way, act as stated above qua complaint against the Judge of the High Court and the Bar would await
for a reasonable period the response of the Chief Justice of India.51
[Art 124.13.2] ‘Misbehaviour’
1. The Constitution does not explain what is meant by “misbehaviour” but the American experience (p
5591, ante) justifies the view that it would not include the mere unpopularity of a Judge’s opinions
with the Legislature.
2. Error in judgment, however gross, cannot amount to “misbehaviour”.52
Every act or conduct or even error of judgment or negligent acts by the higher judiciary per se does
not amount to misbehaviour. Wilful abuse of judicial office, wilful misconduct in the office,
corruption, lack of integrity or any other offence involving moral turpitude would be misbehaviour.
Misconduct implies actuation of some degree of mens rea by the doer. Judicial finding of guilt of
grave crime is misconduct. Persistent failure to perform judicial duties of the judge or wilful abuse of
the office “dolus malus” would be misbehaviour. Misbehaviour would extend to conduct of the judge
in or beyond the execution of judicial office.53 It was held in that case that the holder of office of the
Judge of the Supreme Court or the High Court should be above the conduct of ordinary mortals in the
society. The standards of judicial behaviour both on and off the Bench are normally high and the
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falling moral and ethical standards in the society are no ruse nor refuse to slacken the higher standards
of judicial conduct. The society, therefore, is entitled to expect higher degree of propriety and probity
in the judicial conduct of higher judiciary. Even private life of Judge must adhere to the standards of
probity and propriety, acceptable to others.54
Persons holding office to discharge constitutional duties and obligations are in the position of
constitutional trustees and the morals of the constitutional trustees have to be tested in a much stricter
sense than the morals of a common man in the market place. More sensitive standard of behaviour is
expected from a constitutional trustee who has to be exemplary, his action should be transparent, his
functioning has to be objective and in performance of all his duties he has to be fair, detached and
impartial.55
Persons occupying high public offices should maintain irreproachable behaviour. A certain minimum
standard of code of conduct is expected of them. What may be excusable for an uneducated young
man cannot be tolerated in the case of a person holding Constitutional post. A Constitutional
functionary indulging in physical violence, whatever may be the provocation, amounts to
misbehaviour.56
In every democratic country swearing by the Rule of Law, therefore, special provisions are made
making removal of a judge an extremely difficult exercise. In Britain, for example, judges hold office
during good behaviour and can be removed only on an address before Parliament.57 In USA, a
Supreme Court judge holds office for life and is removable only by process of impeachment in case of
treason, bribery or other crimes and misdemeanors.58 Provision has, however, been made by law for
voluntary retirement on full salary for ten years of service and the attainment of age of seventy.
The word “misbehaviour” used in Article 124(4) is a vague and elastic word and embraces within its
sweep facts of conduct as opposed to good conduct. Literally “mis-conduct” means wrong conduct or
improper conduct. Guarantee of tenure to a Judge, and its protection by the Constitution does not
mean giving sanctuary for corruption or grave misbehaviour. But, at the same time, every action or
omission by a Judge in the performance of his duties which may not be a good conduct necessarily
may not beregarded as “misbehaviour” for the purpose of Article 124(4) indictable by impeachment. 59
The Constitution of India also makes a provision for the removal of a Supreme Court judge (under
Article 124(2) proviso (b) and Article 124(4) and 124(5)). He may be removed from office by the
President on an address by both House of Parliament presented in the same session for proved
misbehavior.60 He may be removed from office by the President on an address by both Houses of
Parliament presented in the same session for proved misbehavior. Even if a judge commits errors,
even gross errors, it does not amount to misbehavior61 or incapacity. The address must be supported
by a majority of the total numbers of each House and also by a majority of not less than two-thirds of
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the members of each House present and voting.
On a plain reading of the provisions of clause (4) of Article 124, a judge of the Supreme Court can
only be removed on the ground of proved misbehavior or incapacity by an order of the President
passed after an address by each House of Parliament supported by a majority of the total membership
of the House and 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
misbehavior or incapacity.
In other words, the President cannot on his own remove a judge of the Supreme Court unless an
address by each House of Parliament supported by a majority of the total membership of that House
and a majority of not less than two-thirds of the members of the House present and voting, is passed
and presented to him for removal of the judge on the ground of proved misbehavior or incapacity.
Therefore, the repository of this power is not in the President alone, but it is exercised after an address
by each House of Parliament supported by a majority of the total members of the House and a
majority of not less than two-thirds of the members of the House is presented to the President. Without
such an address by each of the House of Parliament, the President is not empowered under the
Constitution to order the removal of the judge of the Supreme Court from the office. Article 218 lays
down that a judge of the High Court may be removed from his office by the President in the manner
provided under clause 5 (4) and (5) of Article 124. It is imperative of each House of the Parliament
shall make an address to the President after the same is supported by the majority of total membership
of the House and by a majority of not less than twothirds of the members of that House present and
voting.
Unless that address is presented to the President, in the same session for such removal, the President is
not empowered under the Constitution to make the order for removal of the judge of the Supreme
Court or the judge of the High Court on the ground of proved misbehavior or incapacity.
The power of the President to remove a judge of the Supreme Court or of the High Court is to be
exercised by the President in the manner expressly laid down in clause (4) of Article 124.62 In that
case, the Supreme Court quoted the passage63:
Misbehaviour by a judge whether it takes place on the Bench or off the Bench undermines public confidence in the administration
of justice and also damages public respect for the law of the land, if nothing is seen to be done about it, the damage goes
unrepaired. This must be so when the judge commits a serious criminal offence and remains in office.
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Thus, misbehavior has to be examined having regard to the standard of superior judiciary and hence
normal standard of conduct is expected from a judge of superior judiciary.64 The word “misbehavior”
was not advisedly defined. It is a vague and elastic word elastic word and embraces within its sweep
different facets of conduct as opposed to good conduct.
In RAMANATHAIER’S LAW LEXICON65 collected from several decisions, the meaning of the
word “misconduct” is stated to be vague and relative term. Literally, it means wrong conduct or
improper conduct. It has to be construed with reference to the subject matter and the context wherein
the term occurs having regard to the scope of the Act or statute under consideration. In the case of
disciplinary proceedings against a Solicitor, the word “misconduct” was construed as professional
misconduct extending to conduct “which shows him to unworthy member of the legal profession”.
Articles 124(4) and 121 would put the nail squarely on the projections, prosecution or attempts by any
other form or group of individuals or association, statutory or otherwise, either to investigate or
enquire into or discuss the conduct of a judge or the performance of his duties and on/off court
behaviour except as per procedure provided under Article 124(4) and (5) of the Constitution, the
Judges (Inquiry) Act, 1968 and the Rules.
Threat of impeachment process itself may swerve a judge to fall prey to misconduct, but it serves
disgrace to impeachment proceedings for minor offences or abrasive conduct on the part of the judge.
The bad behaviour of one judge has a rippling effect on the reputation of judiciary as a whole. When
the edifice of judiciary is built heavily on public confidence and respect, the damage by an obstinate
judge would rip apart the entire judicial structure built in the Constitution.66 The proved
“misbehaviour” which is the basis for removal of a judge under clause (4) of Article 124 may also in
certain cases involve an offence of criminal misconduct under section 5(1) of the Act. But there is no
ground for withholding criminal prosecution till the judge is removed by Parliament. One is the power
of Parliament and the other is the jurisdiction of a criminal court. Both are mutually exclusive. In the
matter of Reference under Article 317 of the Constitution of India,67 it was held that in Article 124(4),
“misbehavior” means wrong conduct or improper conduct. It has to be construed with reference to the
subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute
under consideration. Every act or conduct or error of judgment or negligence by a Constitutional
authority per se does not amount to misbehavior. Misconduct implies a creation of some degree of
mens rea by the doer. Wilful abuse of constitutional office, wilful misconduct in the office, corruption,
lack of integrity or other offence involving moral turpitude would be misbehavior. Judicial finding of
guilt of grave crime is misconduct. Persistent failure to perform duties or willful abuse of office would
be misbehavior. Court also said that ordinarily bribery, corruption and the like should be regarded as
“such misbehavior”. It was held in an earlier case that there is no ground for withholding criminal
prosecution till the judge is removed by the Parliament. It was held that one is the power of Parliament
and the other is the jurisdiction of criminal court. Both are mutually exclusive.68
PROF. JACKSON says: “Misbehaviour by a Judge whether it takes place on the Bench or off the
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Bench, undermines public confidence in the administration of justice and also damages public respect
for the law of the land; if nothing is seen to be done about it, the damage goes unrepaired. This must
be so when the Judge commits a serious criminal offence and remains in office.69
3. The Allahabad High Court70 has left open the question whether negotiating with terrorists for
securing the release of an abducted person would amount to “misconduct” on the part of a Judge,
because the court could not entertain that question under Article 226.71
The word “proved” suggests that conviction for a serious offence72 might be treated as a
misbehaviour, whether that amounts to an official misconduct or not. In general, it would include any
form of misconduct which would destroy public confidence in the holder of the office.
4. While impeachment provides the sole remedy for removing a Judge, criminal prosecution for a
criminal misconduct, such as taking bribe would lie even before he is actually removed by Parliament.
[para. 55]73
[Art 124.13.3] Whether prosecution under the Prevention of Corruption Act, 1947 lies against a
Judge of the Supreme Court or High Court
This question has been answered in the affirmative by a majority (4:1) judgment of the Supreme
Court, relating to a High Court Judge.73
It has further been held that no sanction for such prosecution under section 6 of the Act is necessary if
the prosecution takes place after his retirement, when he ceases to be a “public servant”. (para. 106)74
There is no reason to suppose that the case of Supreme Judges would be different, since Article 361(2)
makes no exception in favour of Judges either of the Supreme Court or of a High Court. [paras. 12 and
86]62
[Art 124.13.4] Legislation by Parliament
In exercise of the power conferred by clause (5), Parliament has enacted the Judges (Inquiry) Act,
1968, to “regulate the procedure for the investigation and proof of the misbehaviour or incapacity of a
Judge of the Supreme Court or of a High Court and for the presentation of an address by Parliament to
the President and for matters connected therewith”. Its provisions, in brief, are as follows:
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I. The Act does not define what is “misbehaviour”. Naturally, it will depend upon the opinion of
the investigating Committee and Parliament itself as what would be deemed to be
“misbehaviour” in the light of what has been stated above.
II. As to “incapacity”, section 3(5) suggests that it may be such physical or mental incapacity by
reason of which the Judge “is unable to discharge the duties of his office efficiently”.
III. A proceeding for removal of a Judge is to be initiated by a notice of motion for presenting an
address to the President, praying for such removal, which, if given in the House of the People
must be signed by not less than 100 members of that House; or, if given in the Council of
States, by not less than 50 members thereof.
(a) The Speaker or the Chairman has the discretion to refuse to admit or to admit the motion,
after consulting such persons as he thinks fit, and the materials available to him.
(b) If the motion is admitted, the Speaker or the Chairman shall constitute an investigating
Committee of three members—from the Judges of the Supreme Court, of the High Court,
and a distinguished jurist.
(c) The Committee shall frame definite charges and offer to the Judge concerned a reasonable
opportunity of presenting a written defence.
(d) In the case of physical or mental incapacity, the Committee may appoint a Medical Board
and obtain its report.
(e) on the completion of investigation, the Committee shall submit its report to the Speaker or
the Chairman (as the case may be), whose duty shall be to cause that report to the House or
Houses of Parliament.
(f) The proceedings shall be dropped if the finding of the Committee is that the Judge is not
guilty.
(g) If the report be that the Judge is guilty, the report of the Committee shall, together with the
initial motion, be taken up for consideration by the House where such motion was
initiated. If the motion is adopted in each House of Parliament by the special majority
specified in Article 124(4) (or Article 218, as the case may be), then the charge of
misbehaviour or incapacity against the Judge shall be deemed to have been proved, and it
shall be followed by the address of each House of Parliament to the President for his
removal, to be followed by an order of the President, accordingly.
[Art 124.13.5] Jurisdiction of Supreme Court and High Courts – Nature and Scope
Under the Constitutional Scheme, as framed for the Judiciary, the Supreme Court and High Court,
both are Court of Record. The High Court is not a court subordinate to the Supreme Court. The High
Court exercises power of superintendence under Article 227 of the Constitution over all Subordinate
Courts and Tribunals. The Supreme Court has not been conferred with any power of superintendence.
If the Supreme Court and the High Court both were to be thought of as brothers in the administration
of justice, the High Court has a larger jurisdiction but the Supreme Court still remains the elder
brother. In a unified hierarchical judicial system which India has accepted under the Constitution,
vertically the Supreme Court is placed over the High Court. There are a few provisions which gave an
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edge and assign a superior place in the hierarchy to the Supreme Court over the High Court. In spite of
the Supreme Court and the High Court, both being constitutionally independent of each other and both
being Courts of Record to the extent they exercise appellate jurisdiction, certainly the Supreme Court
exercises a superior jurisdiction and hence a Super Court than the High Court which exercises in that
context an inferior or subordinate jurisdiction.
Under Article 139-A, the Supreme Court may transfer any case pending before one High Court to
another or may withdraw the case to itself. Under Article 141, the law laid down by the Supreme
Court shall be binding on all courts including High Court within the territory of India. Under Article
144, all authorities, civil and judicial in the territory of India – and that would include High Court as
well – shall act in aid of the Supreme Court.
The Union Judiciary and the State Judiciary are undoubtedly independent of each other except for a
few areas relating to jurisdiction as indicated above. However, at the same time, emphasis must be laid
on appellate hierarchy which if examined in the correct perspective is a factor strongly contributing
towards the independence of judiciary and securing finality in adjudication within the system and its
insulation from any side interference or correlation. The delicate balance has been carefully crafted
and sought to be achieved by independence and inter-connection – both existing simultaneously – of
the Supreme Court and the High Court. There are “relationships of tension as well as those of co-
operation”. In the realm of constitutionalism, the values of mutual trust and respect between the
functionaries, nurtured by tradition, alleviate the need to codify the rules of the relationship.
Experience shows that any rigid codification of such delicate relationship is advantageous to those
bent upon vilification. A rigid written law makes it difficult to maintain that dignity which is better
and rightly left to be perceived by right-minded people who zealously uphold the dignity of others as
they do their own.
The framers of the Constitution think it is necessary to specifically confer power on the Supreme
Court to give a command to the High Court, for; they were men of vision and foresight. They knew
that all constitutional functionaries and institutions have to act in the best interest of norms and
traditions consistent with democracy and constitutionalism set down in and discernible from the
Constitution and as handed down by history and generation of judges.
Everyone would, it was expected, within bounds and would not overstep its limits, so that ideals and
values remain a living reality and do not become either an intrusion or an illusion. The constitutional
and democratic institution, complementing and supplementing each other would land to these handed-
down traditions and would also contribute to developing such rich tradition as would be respected and
hailed by posterity. This would result in strengthening the working of the Constitution. An institution
dealing with another institution under the Constitution shall have to observe grace and courtesy. No
judge shall criticise another judge and certainly not strongly. Any departure therefrom needs to be
corrected at the earliest and in the larger interest. It is obligatory on an appellate forum to correct such
deviation from rule brought to its notice as having been committed by a jurisdictional subject and if it
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does not do so, it fails in its duty.
Undoubtedly, the corrective step too is taken carefully with courtesy and respect and not by way of
harsh criticism. The Supreme Court exercising its appellate jurisdiction is called to issue direction,
which is not only its privilege as an appellate forum, but often a necessity, for meeting the demands of
justice and effective exercise of appellate power.
Yet it cautiously obtains from using any “direction” as such and rather uses the alternative and polite
expressions like “We request the High Court”, “the High Court is expected to”, “we trust and hope
that the High Court will/shall” spelled out by courtesy and the respect and regards with the Supreme
Court has – and must have – for High Courts. The practice has developed and gained ground as
tradition. Barring may be an instance or two which too must have been avoidable, there has been
occasion either for any disrespect having been shown by the Supreme Court to the High Court or vice
versa or for the Supreme Court having been called upon to take cognizance of any instance of any
disrespect should not be misunderstood as calling “the Supreme Court, a Superior Court and the High
Court as inferior court” all this is being said is that juridically and in the hierarchical system so far as
the exercise of appellate jurisdiction is concerned, undoubtedly the Supreme Court is a superior forum
and the High Court an inferior forum in the sense that the latter is subjected to jurisdiction called “the
appellate jurisdiction of the former”.75 It has been held that the prerogative to constitute a Bench is
with Chief Justice of the High Court and the impugned direction had only been a request to the Chief
Justice of the High Court to constitute the said Bench and such direction did not in any way express
any lack of confidence in the (Acting) Chief Justice nor take away his prerogative to constitute a
Bench.76
[Art 124.13.6] THE JUDGES (INQUIRY) ACT, 1968
(Act 51 of 1968)
[5th December 1968]
An Act to regulate the procedure for the investigation and proof of the misbehaviour or incapacity of
a Judge of the Supreme Court or of a High Court and for the presentation of an address by
Parliament to the President and for matters connected therewith.
Article 124(5) mandates enactment of a Parliamentary Law to regulate the investigation and proof of
misbehaviour or incapacity of a Judge under Clause (4) and pursuant to it the Judges (Inquiry) Act,
1968, has been enacted by the Parliament. On a construction of Article 124, the policy appears to be
that the entire stage upto the proof of misbehaviour or incapacity, beginning with the initiation of
investigation on the allegation being made, is governed by the law enacted under Article 124(5) and in
view of the restriction provided in Article 121, the machinery has to be outside the Parliament and not
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within it, and Parliament comes into picture only when a finding is reached by that machinery that the
alleged misbehaviour or incapacity has been proved. The Judges (Inquiry) Act, 1968, enacted under
Article 124(5) of the Constitution being made for this purpose, the provisions thereof have to be
construed in that light.77
The Judges (Inquiry) Act reflects the constitutional philosophy of both the judicial and political
elements of the process of removal. The ultimate authority remains with the Parliament in the sense
that even if the Committee for investigation records a finding that the Judge is guilty of the charges, it
is yet open to Parliament to decide not to present an address to the President for removal. But if the
Committee records a finding that the Judge is not guilty, then the political element, in the process of
removal, has no further option. The law is, indeed a civilised piece of legislation reconciling the
concept of accountability of Judges and the value of judicial independence. The provisions of the
Judges (Inquiry) Act do not foul with the Constitutional scheme.78
Be it enacted by Parliament in the Nineteenth Year of the Republic of India as follows:
1. Short title and commencement
(1) This Act may be called the Judges (Inquiry) Act, 1968.
(2) It shall come into force on such date79 as the Central Government may, by notification in
the Official Gazette appoint.
2. Definitions
In this Act, unless the context otherwise requires,—
(a) “Chairman” means the Chairman of the Council of States;

(b) “Committee” means a Committee constituted under section 3;
(c) “Judge” means a Judge of the Supreme Court or of a High Court and includes the Chief
Justice of India and the Chief Justice of a High Court;
(d) “Prescribed” means prescribed by rules made under this Act;
(e) “Speaker” means the Speaker of the House of the People.
3. Investigation into misbehaviour o r incapacity of Judge by Committee
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A Judge is not, as a matter of right, entitled to any notice when the Speaker admits the
motion. The Scheme of the Statute and the rules made thereunder, by necessary
implication, exclude such a right. But that may not prevent the Speaker if the facts and
circumstances placed before him indicate that hearing the Judge himself might not be
inappropriate, he might do so. But a decision to admit a motion and to constitute a
Committee for investigation without affording such an opportunity does not, by itself and
for that reason alone, vitiate the decision.
(1) If notice is given of a motion for presenting an address to the President praying for the
removal of a Judge signed,—
(a) in the case of a notice given in the House of the People, by not less than one hundred
members of that House;
(b) in the case of a notice given in the Council of States, by not less than fifty members of
that Council; then, the Speaker or, as the case may be, the Chairman may, after
consulting such persons, if any, as he thinks fit and after considering such materials, if
any, as may be available to him either admit the motion or refuse to admit the same.
Before initiation of motion against the Supreme Court Judge for his
removal, definite materials or evidence in support of the grounds of motion
must exist.80 It was held therein that the Speaker merely performs though
as a statutory authority, a Constitutional function to admit or refuse to
admit the motion.
(2) If the motion referred to in sub-section (1) is admitted, the Speaker or, as the case may be,
the Chairman shall keep the motion pending and constitute as soon as may be for the
purpose of making an investigation into the grounds on which the removal of a Judge is
prayed for, a Committee consisting of three members of whom—
(a) one shall be chosen from among the Chief Justice and other Judges of the Supreme
Court;
(b) one shall be chosen from among the Chief Justices of the High Courts; and
(c) one shall be a person who is in the opinion of the Speaker or as the case may be the
Chairman, a distinguished jurist:
Provided that where notices of a motion referred to in sub-section (1) are

given on the same day in both Houses of Parliament, no committee shall be
constituted unless the motion has been admitted in both Houses and where
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the committee shall be constituted jointly by the Speaker and the

Chairman:
Provided further that where notices of a motion as aforesaid are given in

the Houses of Parliament on different dates, the notice which is given later
shall stand rejected.
For initiation of motion against the Judge of Supreme Court, the consent of
the President is not required. But the Speaker has to consult the Chief
Justice of India not only in the matter of admission or rejection of motion
under section 3(1), but also in the matter of choice and availability of
sitting Judge of Supreme Court and Chief Justice of the High Court as
member of the committee under section 3(2) of the Act. Even though
consent of the President is not required, before entering upon their duties
by a sitting Judge of the Supreme Court, and the Chief Justice of a High
Court as Presiding officer and member of the committee respectively, a
notification is necessary. The enquiry committee under this section is not a
tribunal or authority and, therefore, no appeal would lie in Supreme Court
against the finding of guilt by the committee.81 It was held therein that the
finding of the committee is only a recommendation which the Parliament
may or may not accept. The finding by the Committee is not final and
conclusive and no appeal lies to the Supreme Court under Article 136 of
the Constitution against the finding.
(3) The committee shall frame definite charges against the Judge on the basis of which the
investigation is proposed to be held.
(4) Such charges together with a statement of the grounds on which each such charge is based
shall be communicated to the Judge and he shall be given a reasonable opportunity of
presenting a written statement of defence within such time as may be specified in this
behalf by the committee.
The procedure prescribed under sub-sections (3) and (4) provides built-in fair
procedure to prove the alleged misbehaviour or incapacity of a Judge. It is akin to
adversarial and trial of a civil suit and the committee acts as an independent
“judicial statutory authority”. The provisions are consistent with Articles 124(4),
14 and 21 of the Constitution and hence are valid.82 It was held therein that the
committee has discretion to device its own procedure and adopt its own function
during the investigation to discover and collect evidence. But, no other person is
entitled to participate in the deliberations of the committee including the Members
of Parliament who moved the motion for his removal and lead evidence in proof or
disproof of the Charges. Only the advocate appointed under Section 3(9) of the Act
and the Judge concerned or his Counsel alone are entitled to participate in the
deliberations. The consideration of evidence is like a criminal case as finding
would be “guilty” or “not guilty” on proof beyond reasonable doubt, though the
procedure of a trial of a civil suit is adopted.
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The Inquiry Report of the committee cannot be compared or equated with the
sanction given under Section 197 of Criminal Procedure Code in respect of a
public servant. The powers, duties and functions of the Inquiry Committee
constituted under the Act and composed of high judicial functionaries which
records its finding after giving an opportunity to the
Judge concerned on the basis of the oral and documentary evidence cannot be
compared or equated with the sanction accorded by an executive authority in
respect of a public servant.
As the Judge gets full opportunity of hearing before the committee for contesting
the charges against him, the principle of natural justice is not violated if the copy
of the Report is not given to him before the same is submitted to the Speaker. But
the Speaker is obliged to supply the copy of the report to the Judge concerned
intended to be it laid before the Parliament. Parliament’s decision to adopt the
motion or refuse the same has to be on merits on the basis of entire material
including the dissenting opinion, if any, as well as the comment of the Judge
concerned affording a pre-decisional opportunity of show cause to the Judge being
implicit at the stage of Parliamentary process. But Judicial Review is not available
at the stage.
(5) Where it is alleged that the Judge is unable to discharge the duties of his office efficiently
due to any physical or mental incapacity and the allegation is denied, the committee may
arrange for the medical examination of the Judge by such Medical Board as may be
appointed for the purpose by the Speaker or, as the case may be, the Chairman or, where
the Committee is constituted jointly by the Speaker and the Chairman, by both of them, for
the purpose and the Judge shall submit himself to such medical examination within the
time specified in this behalf by the committee.
(6) The Medical Board shall undertake such medical examination of the Judge as may be
considered necessary and submit a report to the Committee stating therein whether the
incapacity is such as to render the Judge unfit to continue in office.
(7) If the Judge refuses to undergo medical examination considered necessary by the Medical
Board, the Board shall submit a report to the Committee stating therein the examination
which the Judge has refused to undergo, and the committee may, on receipt of such report,
presume that the Judge suffers from such physical or mental incapacity as is alleged in the
motion referred to in sub-section (1).
(8) The committee may after considering the written statement of the Judge and the medical
report, if any, amend the charges framed under sub-section (3) and in such a case, the
Judge shall be given a reasonable opportunity of presenting a fresh written statement of
defence.
(9) The Central Government may, if required by the Speaker or the Chairman, or both, as the
case may be, appoint an advocate to conduct the case against the Judge.
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4. Report of Committee
(1) Subject to any rules that may be made in this behalf, the committee shall have power to
regulate its own procedure in making the investigation and shall give a reasonable
opportunity to the Judge of cross-examining witnesses, adducing evidence and of being
heard in his defence. Consideration of evidence is like a criminal case as finding would be
“guilty” or “not guilty” on proof beyond reasonable doubt, though the trial procedure is
that of a civil suit under the Code of Civil Procedure.83
(2) At the conclusion of the investigation, the committee shall submit its report to the Speaker
or, as the case may be, to the Chairman, or where the Committee has been constituted
jointly by the Speaker and the Chairman, to both of them, stating therein its findings on
each of the charges separately with such observations on the whole case as it thinks fit.
(3) The Speaker or the Chairman, or, where the committee has been constituted jointly by the
Speaker, and the Chairman, both of them, shall cause the report submitted under sub-
section to be laid, as soon as may be, respectively before the House of the People and the
Council of States.
The Judge concerned is not entitled to a copy of the report before the committee
submits the same to the Speaker. If the committee records a finding that the
concerned is guilty of charges, then the Speaker is obliged to supply a copy thereof
to the Judge concerned while causing it laid before the Parliament.84
5. Powers of Committee
For the purpose of making any investigation under this Act, the committee shall have the
powers of a civil court, while trying a suit, under the Code of Civil Procedure, 1908, in
respect of the following matters, namely:
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on oath;
(d) issuing commissions for the examination of witnesses or documents;
(e) such other matters as may be prescribed.
6. Consideration of report and procedure for presentation of an address for removal of judge
(1) If the report of the committee contains a finding that the Judge is not guilty of any
misbehaviour or does not suffer from any incapacity, then, no further steps shall be taken
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in either House of Parliament in relation to the report and the motion pending in the House
or the Houses of Parliament shall not be proceeded with.
Once the Inquiry Committee Report is that the concerned Judge is not guilty, it
terminates the entire process of removal of the Judge and excludes judicial review
of the committee report containing such finding.85
(2) If the report of the committee contains a finding that the Judge is guilty of any
misbehaviour or suffers from any incapacity, then, the motion referred to in sub-section (1)
of section 3 shall together with the report of the committee, be taken up for consideration
by the House or the Houses of Parliament in which it is pending.
The finding of guilty recorded by the committee is not conclusive and final and the
Parliament can still hold that the charges did not amount to misbehaviour and may
decide not to adopt the motion. The Parliament does not substitute its finding for
that of the Inquiry Committee or supersede it in case it decides not to adopt the
motion by the requisite majority, so that the motion for removal of the Judge fails
and proceedings terminate, but in doing so, it does take the decision to not adopt
the motion because it declines to accept and act on the finding of guilty recorded in
the report of the committee after debating the issue on the basis of materials before
it.86
(3) If the motion is adopted by each House of Parliament in accordance with the provisions of
clause (4) of Article 12 or as the case may be, in accordance with that clause read with
Article 218 of the Constitution, then, the misbehaviour or incapacity of the Judge shall be
deemed to have been proved and an address praying for the removal of the Judge shall be
presented in the prescribed manner to the President by each House of Parliament in the
same session in which the motion has been adopted.
Finding of the committee is only recommendatory and hence inchoate. No judicial

review is maintainable at that stage. Misbehaviour is deemed to be proved only on
adoption of the motion by Parliament. After the adoption of motion, judicial
review of the finding of guilty in the report of the Committee would be permissible
on the available grounds of judicial scrutiny after the making of an order of
removal by the President pursuant to the adoption of the motion for removal by the
Parliament based on the committee Report.85
7. Power to make rules
(1) There shall be constituted a Joint Committee of both Houses of Parliament in accordance
with the provisions hereinafter contained for the purpose of making rules to carry out the
purposes of this Act.
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(2) The Joint Committee shall consist of fifteen members of whom ten shall be nominated by
the Speaker and five shall be nominated by the Chairman.
(3) The Joint Committee shall elect its own Chairman and shall have power to regulate its own
procedure.
(4) Without prejudice to the generality of the provisions of sub-section (1), the Joint
Committee may make rules to provide for the following among other matters, namely:
(a) The manner of transmission of a motion adopted in one House to the other House of
Parliament;
(b) The manner of presentation of an address to the President for the removal of a Judge;
(c) The travelling and other allowances payable to the members of the Committee and the
witnesses who may be required to attend such Committee;
(d) The facilities which may be accorded to the Judge for defending himself;
(e) Any other matter which has to be, or may be provided for by rules or in respect of
which provision is, in the opinion of the Joint Committee, necessary.
The Judges (Inquiry) Act, 1968 and the Rules made thereunder only provide for removal of a
Judge on the ground of proved misbehaviour or inability. It does not provide for prosecution of
a Judge for offences under the Prevention of Corruption Act.87
(5) Any rules made under this section shall not take effect until they are approved and confirmed
both by the Speaker and the Chairman and are published in the official Gazette, and such
publication of the rules shall be conclusive proof that they have duly made.
[Art 124.13.7] Procedure for impeachment
1. The procedure for impeachment of a Judge of the Supreme Court or a High Court, when the
provisions of Article 124(4) are read with those of the Judges (Inquiry) Act, 1968, is as follows:
(a) The process for impeachment may be initiated only if a motion addressed to the President is
signed by at least 100 Members of the Lok Sabha, or 50 Members of the Rajya Sabha, and
delivered to the Speaker. No mala fides can be attributed against the Speaker for admitting the
motion because of his political affiliation. At any rate, the said ground cannot stand since the
Speaker is the only authority to deal with the welter doctrine of necessity applies.88
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(b) This motion is to be investigated by a committee of three (two Judges of the Supreme Court
and a distinguished jurist). The motion of impeachment will be dropped if the finding of the
committee be in the negative.
(c) If the said committee finds that the Judge in question is guilty of misbehaviour or suffers from
any incapacity, the motion of impeachment together with the report of the committee, shall be
taken up for consideration of the House of Parliament in which it is pending.
(d) If the motion is passed in each House by a two-thirds majority of the total membership of that
House and by a majority of not less than 2/3 of the members of that House present and voting,
the address of Parliament for removal of the Judge shall be presented to the President in the
same session.
(e) The Judge will be removed after the President gives his order for removal on the said address.
2. The procedure prescribed by Article 124(4) is the only mode for removing a Judge of the Supreme
Court or High Court [Article 217(l), Proviso (b)]. No court can issue a writ of mandamus for the
purpose, however, gross the conduct of a Judge may be.89
A plain reading of the provision of clause (4) of Article 124 shows that a judge of a Supreme Court
can be removed only on the ground of proved misbehavior or incapacity 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 present and voting and has
been presented to the President in the same session for such removal on the ground of misbehavior or
incapacity.
In other words, the President cannot on his own remove a judge of the Supreme Court unless an
address by each House of Parliament supported by a majority of the total membership of that House
and a majority of not less than two-thirds of the members of that House present and voting, is passed
and presented to him for removal of the judge on the ground of proved misbehavior or incapacity.
Therefore, the repository of the power is not in the President alone, but it is exercised after an address
by each House by a majority of not less than two-thirds of the membership is presented to the
President. Without such an address by each of the Houses of Parliament, the President is not
empowered under the Constitution to order the removal of a judge of the Supreme Court from the
office. Article 218 lays down that a judge of the High Court may be removed from his office by the
President in the manner provided in clauses (4) and (5) of Article 124. It is imperative that each House
of the Parliament shall make an address to the President, after the same is supported by a majority of
the total membership of the House and by a majority of not less than two-thirds of the members of that
House present and voting.
Unless that address is presented to the President in the same session for such removal, the President is
not empowered under the Constitution to make the order of removal of the judge of the Supreme
Court of India or of the judge of the High Court on the ground of proved misbehavior or incapacity.
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Of course, the power of the President to remove a judge of the Supreme Court or the High Court is to
be exercised by the President in the manner expressly provided in clause (4) of Article 124.90 It was
held in that case that the “proved” misbehavior for removal of a judge under clause (4) of Article 124
may also in certain cases involve an offence of criminal misconduct. But there is no ground for
withholding criminal prosecution till the judge is removed by Parliament. One is the power of
Parliament and the other is the jurisdiction of a criminal court. Both are mutually exclusive. Even a
Government servant who is answerable for his misconduct which may also constitute an offence under
the Indian Penal Code or under section 5 of the Prevention of Corruption Act is liable to be prosecuted
in addition to a departmental enquiry. It is not objectionable to initiate criminal proceedings and a
fortiori prosecution of a judge for criminal misconduct before his removal by Parliament for proved
misbehaviour is unobjectionable.
Contrary to the common belief, there is no provision in our Constitution for the impeachment of the
judge. The impeachment is provided for the President and none else. Also, there is a fundamental
difference between removal procedure and impeachment procedure and the impact of the adoption of
a motion for impeachment and the passing of a motion for presenting an address to the President
seeking orders for the removal of the judge. The grounds for impeachment of President have to
concern “violation of Constitution”, while an address for removal of a judge has to be on the ground
of “misbehaviour or incapacity”. In case of impeachment, the moment motion is passed by the two
Houses; the President forthwith ceases to be the President. But, in the case of the motion for removal,
it is for the President to consider issuing necessary orders.
In view of specific provisions contained in Article 124(4) and (5) read with Article 121, even a relief
cannot be granted to restrain a Judge from discharging his judicial function, unless the alleged
“misbehaviour” or “incapacity” is proved. In such cases, the sense of propriety of the learned Judge
himself and the judicial tradition symbolised by the views of the Chief Justice of India should govern
the case and the learned Judge is expected would be guided by the advice of the Chief Justice of India
and himself decide whether to abstain from discharging judicial functions during the period when the
inquiry is going on.91
Though the committee of Inquiry reported that the action of the concerned Judge amounts to
“misbehaviour” and his continuance in office will be prejudicial to the administration of justice and
public interest, the motion was defeated by Parliament in view of some Members of Parliament
absented themselves at the time of voting and the motion got defeated. A writ petition was moved in
the Supreme Court seeking a declaration that the motion of impeachment moved in the Lok Sabha for
removal of the Judge ought to be regarded as “carried out” on the plea that absentee members must be
deemed to have supported the motion. The contention was rejected holding that the expression “not
less than two-thirds of the members present and voting in Article 124(4) implies that motion is to be
deemed to be carried out only when the requisite number of members express their support for the
motion by casting votes in its favour. Abstention from voting cannot be construed as deemed support
for the motion and hence the Judge cannot be removed from office.92
[Art 124.13.8] Is it obligatory for the President to give his approval to the address as passed by
Parliament?
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Under Article 111 of the Constitution, it is not obligatory for the President to give his assent to an
ordinary Bill passed by Parliament.
In order to indicate the contrary intention in the case of a Bill for amending the Constitution, as
amendment of Article 368(2) was made by the Constitution (24th Amendment) Act, 1971, by reason
of which it has been made obligatory for the President to give his assent to a Constitution Amendment
Bill which has been passed by Parliament.
From this it might be argued that it is not obligatory for the President to remove a Judge even after
Parliament has duly passed the address for removal. But such a conclusion will defeat the very object
of Article 124(4). It was to maintain the independence of the Judiciary from the Executive that it was
provided in the Constitution that a Judge of the superior courts shall not be removed by the Executive
except when Parliament votes for his removal under a quasi-judicial procedure on definite charges. If
the President, overrides the vote of Parliament on the advice of the Council of Ministers, there will be
a blatant violation of the Constitution, for which the President himself may be subjected to
impeachment and the Council of Ministers subjected to a vote of no-confidence, which will restore the
superiority of Parliamentary sovereignty as against the Executive,—which is a basic feature of the
Constitution of India.
The effect of Articles 124(5) and 118 and Sixth Schedule of the Constitution and sections 3 and 4 of
the Judges (Enquiry) Act is that the motion shall be kept pending till the Committee constituted for the
purpose of making an investigation into grounds on which the removal of the judge is prayed submits
its report and if the Committee finds the judge guilty, the motion shall be taken up for consideration.
Only one motion is envisaged which will remain pending. No words of limitation that the motion shall
be kept pending subject to the usual effect of dissolution of the House can or should be imported. The
reason is that a law made by Parliament and binding on the House can provide against the doctrine of
lapse. The law envisaged in Article 124(5) is Parliamentary Law which is of higher quality and
efficacy than rules made by the House for itself under Article 118. Such a law can and under the
present statute does provide against the doctrine of lapse. Further, Article 118 expressly states that
each House of Parliament may make rules regulating the procedure “subject to the provisions of the
Constitution”. In the constitutional area of removal of a judge, the law made under Article 124(5) must
be held to go a little further and exclude the operation of the rules under Article 118. No question of
repugnancy could arise to the extent the field is covered by the law under Article 124(5). Such a view
indeed obviates some anomalies which might otherwise arise. Rajya Sabha is not dissolved and a
motion for presentation of address for removal of the judge can never lapse there. Section 3 applies to
both the Houses of Parliament. The words “shall keep the motion pending” in section 3 cannot have
two different meanings in the two different contexts. It can only mean that the consideration of the
motion shall be deferred till the report of the Committee implying that till the happening of that event
the motion will not lapse. Therefore, the plea that such a motion lapses with the dissolution of the
House of Parliament is not tenable. The process for removal of a judge is a parliamentary process
which cannot be subjected to judicial intervention until it has culminated in the removal of a judge.
After such culmination, the statutory part of the process by which a finding of guilt is made by the
Inquiry Committee is subject to judicial review on permissible grounds and that too only at the
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aggrieved judge. The interpretation of the laws is the domain of the courts and on such interpretation
of the constitutional provision as well as judges (Inquiry) Act, 1968, it requires to be held that under
the laws such a motion does not lapse and the court retains jurisdiction to so declare.93 Under the
Constitution of India, security of judicial tenure has been provided to the judges of the Superior courts
and they could be removed only as per the procedure prescribed under Article 124(4) of the
Constitution on account of proved misbehaviour or incapacity. Sometimes the sitting judges appointed
to the post of Chairman, Vice-Chairman of any Tribunal or Commission would be liable to be
removed by the appointing authority. This is also not desirable in view of the Constitutional position
occupied by the judge.
The proved “misbehaviour” for removal of a judge under clause (4) of Article 124 also in certain cases
involves an offence of criminal misconduct. But there is no ground for withholding criminal
prosecution till the judge is removed by Parliament. One is the power of Parliament and the other is
the jurisdiction of a criminal court. Both are mutually exclusive. Even a Government servant who is
answerable for his misconduct which may also constitute an offence under Indian Penal Code, 1860
or under section 5 of the Prevention of Corruption Act is liable to be prosecuted in addition to a
departmental enquiry. It is not objectionable to initiate criminal proceedings and a fortiori prosecution
of a judge for criminal misconduct before his removal by Parliament for proved misbehaviour is
unobjectionable.94
[Art 124.13.9] ‘In the same Session’
1. Article 107(5) deals with the lapse of a “Bill” as a result of dissolution of the House of the People,
in the specified case.
That provision does not apply to an “address for removal” under Article 124(4). From this it might be
supposed that dissolution shall have no effect upon an address for removal of a Judge under Article
124(4) or Article 218. Such an inference is obviated by the expression “in the same Session’:
(a) If the address is presented to the President during the same session when the address is passed
by Parliament, the President’s order cannot be challenged on the ground that dissolution took
place between the date of presentation and the date of the order of the President.
(b) If, however, dissolution takes place between the date of passing and the date of presentation,
the motion for removal of the Judge shall lapse by reason of the dissolution.
2. Towards the end of the 9th Lok Sabha, 108 Members of the Lok Sabha gave notice of a motion
under Article 124(4), read with the Judges (Inquiry) Act, 1968, for removal of a sitting Judge of the
Supreme Court (RAMASWAMI, J.) for his alleged misconduct while he was Chief Justice of the P. &
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H. High Court.95
The Speaker of the Lok Sabha admitted this motion and constituted an Inquiry Committee (consisting
of a Judge of the Supreme Court, the Chief Justice of a High Court and a Jurist) to investigate into the
allegations made in the aforesaid motion.
It appears that the Government of India did not afford proper facilities for the working of the
Committee set up by the Speaker, on the ground that the motion had lapsed owing to the intervening
dissolution of the 9th Lok Sabha. Thereupon, a body of advocates styled “Sub-committee on Judicial
Accountability” brought a public interest Petition under Article 32 for certain directions to be issued
upon the Government of India contending that it was for the Speaker to decide whether the motion had
lapsed or not, and that even apart from the provisions of the Judges (Inquiry) Act, 1968, the House of
the People through the Speaker had ample jurisdiction to make an inquiry into the Judge’s conduct.
The court 95 refused interim relief but directed an early hearing of the writ petition.
In its final order96 the majority of the Supreme Court (4:1) has laid down the following propositions:
I. A motion for removal of a Judge under Article 124(5) of the Constitution does not lapse on the
dissolution of the House of the People [as may be supposed in view of the Rules framed under
Article II, section (8)] [paras. 54, 57].96
The reason is that Article 124(5) and the law made thereunder, namely, the Judges
(Inquiry) Act [sections 3 and 6(2)], override the Rules made by a House of Parliament
under Article 118, and form an exception to the Rule.97
The effect of sections 3 and 6(2) of the Act is that the motion for removal shall be kept
pending till the committee set up under the Act submits its report, and, if the committee
finds the Judge guilty, the motion shall be taken up for consideration in the House. The
court further ruled that the committee of Inquiry appointed by the Speaker was a body
outside Parliament and a statutory body under the Judges (Inquiry) Act and till it furnishes
its findings to the House, the committee maintains its own separate identity.
II. The question whether the motion for removal of a Judge has lapsed owing to dissolution is for
the court to decide and not the House of Parliament, because—
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(a) The exclusive authority of a House or its Speaker is confined to matters pertaining to the
conduct of business or procedure and not matters governed by statute or the written
Constitution [para. 66].96 The principle of parliamentary sovereignty has no application
where there is a written Constitution. The provision of the Constitution acts as a limitation
upon the legislature and other organs of the State “as grantees under the Constitution and
the concept is one of “limited government”. Judicial review is an inevitable part of a
written Constitution which is the fundamental law of the land. The court held, “The
interpretation of the laws is the domain of the courts and on such interpretation of the
constitutional provisions as well as the Judges (Inquiry) Act, 1968, it requires to be held
that under the law such a motion does not lapse and the courts retain jurisdiction to so
declare.”
(b) The Constitution being the higher law, is binding on the Legislature, even in procedural
matters and the Judiciary, being the exclusive and final interpreter of this higher law, is the
authority to determine the limit imposed by the Constitution upon the Legislature [paras,
61-63].86 It was held therein that the principle that even a statutory right if it related to the
sphere where Parliament and not the courts had exclusive jurisdiction would be a matter of
Parliament’s own concern has no application where the matter is not merely one of
procedure, but of substantive law concerning matters beyond the parliamentary procedure.
Even in matters of procedure, the constitutional provisions are binding as the legislations
are enforceable.
III. As to the justiciability of the proceedings under the Judges (Inquiry) Act, the court held—
(i) The process for removal under the Act comprises two stages:
(a) The first stage is of initiation of proceeding, investigation and proof in accordance with
the law enacted under Article 124(5) by a Committee constituted by the Speaker acting
as statutory authority [para. 97]98 under the Act. This stage is subject to judicial review
because Parliament has no role in this function except according to the law made under
Article 124(5), i.e., the Judges (Inquiry) Act [para. 81].98 It was held therein that this
stage is not “strictly speaking”, proceedings of Parliament and hence cannot be said to
remain outside Court’s jurisdiction. Till that stage, the matter cannot be discussed on
the floor of the House because of the bar placed under Article 121. It was further
observed that Speaker while admitting a motion and constituting a committee to
investigate grounds of misbehaviour or incapacity does not act as part of the House and
the House does not come into the picture at that stage.
The Constitution intended this first part to be fully covered by enacted law,
so that the validity of the law and the process thereunder is subject to
judicial review. [para. 82]98
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(b) The second stage commences after allegations of misbehaviour or incapacity of the
Judge are found proved by the aforesaid Committee, in accordance with the law
enacted under Article 124(5). [para. 81]98
This stage involves parliamentary process from which judicial review is

excluded [paras 78-79]. As soon as this stage is reached, the bar under
Article 121 against discussion of the Judge’s conduct is lifted and becomes
subject to parliamentary discussion. [para 79]1
On the other hand, in case the committee reports that the allegation has not
been proved, the condition precedent to invoke the jurisdiction of
Parliament under Article 124(4) does not exist [para 79].1
If the Parliament does not adopt the motion for removal of the Judge, the
process ends there with no challenge available to anyone. It was held that
in case the finding is “guilty” made by the committee, judicial review is
permissible on limited grounds “pertaining only to the legality”, but only
after “the making of the order of removal by the President in case the
Parliament adopts the motion by the requisite majority”. Resort to judicial
review by the concerned Judge between the time of conclusion of the
inquiry by the committee and making of the order of removal by the
President would be premature and is unwarranted in the constitutional
scheme.
According to M.P. Jain, the decision in Sub-Committee’s case has seeds of

confrontation between the Supreme Court and Parliament. Ordinarily, after
Parliament has taken a decision to remove a Judge on the basis of the
report of the committee of Inquiry, the matter should come to an end. As
the court itself has said, if the Inquiry Committee is favourable to the
concerned Judge, the matter ends there and Parliament cannot take any
further action in the matter. If, however, the report of the committee goes
against the Judge, then, only Parliament can take action to remove him
after giving him a hearing on the inquiry report.
Once Parliament has passed a resolution removing the Judge after

following the due procedure and the President assents to the motion, the
Judge stands removed and there appears to be no need for any judicial
review thereafter. Otherwise, there is a chance of controversy arising
between the Judiciary and Parliament. In any case, judicial review can only
be on procedural grounds and not on merits of the grounds of removal.2
It can be seen that the constitutional provision in India for removal of a

judge of a Supreme Court is modeled on the English provision, though the
former is somewhat more rigid than the latter in so far as – (1) it requires
special majority in both Houses whereas in England no specific majority is
prescribed; (2) while in India the grounds have been specified on which an
address for the removal of a judge can be presented, there is no such
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provision in England; (3) In India there is a provision for investigation and

proof of the grounds before presenting an address, no such provision exists
in England. Therefore, it appears that the provision in England for removal
of a judge is more flexible than that in India.
IV. The provisions of the Judges (Inquiry) Act, 1968, are not unconstitutional on the ground of
abridging the powers and privileges of the House. [para 101]1
The reason is that the constitutional process for removal of a Judge up to the recording of
the findings of the Committee are not strictly speaking “proceedings of the House” to
which the Rule-making power and the Privileges apply, but constitute a statutory and
special procedure [para 95]3 and the Speaker also acts as a statutory authority [para 99].3
The House does not come into the picture at this stage. [para. 101] 3
V. Apart from the constitutional process under Articles 124(4)-(5), read with Article 32, the
Supreme Court itself has no jurisdiction to inquire into the alleged misbehaviour or incapacity
of a Judge or to grant a relief of restraining him from judicial functioning,—though as a matter
of propriety, the Judge against whom such allegations have been made, should, if so advised
by the Chief Justice of India, abstain from functioning pending the proceedings for his
removal. [paras 101-12]3
The word “proved” in this provision indicates that the address can be presented by Parliament only after
alleged charges of misbehaviour or incapacity against the judge has been investigated, substantiated and
established by an important tribunal. The constitutional provision does not prescribe how the investigation is
to be carried on. It leaves it to Parliament to settle and lay down by law the detailed procedure according to
which the address may be presented and charge of misconduct or incapacity against the judge investigated and
proved. (See Article 124(5)).
Interpreting Articles 121 and 124, the Supreme Court ruled that the constitutional process for the removal of a
judge upto the point of admission of the motion, constitution of the Committee and recording of findings by
the Committee are not strictly speaking proceedings of the House of Parliament. This part is covered by
enacted law. The Speaker is a statutory authority under Judges (Inquiry) Act up to that point and the matter
cannot be said to remain outside the court’s jurisdiction. Till this stage, the matter cannot be discussed on the
floor of the House because of the bar under Article 121.
Prior proof of misconduct in accordance with the law made under Article 124(5) is a condition precedent for
lifting of the bar under Article 121 against discussing the conduct of the judge in Parliament. Article 124(4)
really becomes meaningful only with a law made under Article 124(5). Without such a law having been made,
the Constitutional Scheme and process for removal of a judge remain inchoate. The Judges (Inquiry) Act,
1968 is, therefore, constitutional and intra vires the Parliament.
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Where the Speaker admits the motion under section 3 of the Judges (Inquiry) Act, the judge concerned is not
as a matter of right, entitled to any notice or hearing. Also, there is no legal provision under which the court
has power to interdict the judge from attending the judicial work in the court pending enquiry against him. It
may, however, be advisable to do so if so advised by the Chief Justice.
The Chief Justice is expected to find a desirable solution in such a situation to avoid embarrassment to the
judge and to the institution in a manner which is conducive to the independence of judiciary. Should the Chief
Justice be of the view that in the interest of the institution of judiciary, it is desirable for the judge to abstain
from judicial work till the final outcome under Article 124(4), he would advise the judge accordingly. The
judge would ordinarily abide by the advice of the Chief Justice. The court also held that the petitioner being a
Committee of Bar has locus standi to move a writ petition in the court to raise these matters concerning the
removal of a Supreme Court judge.4 In Sarojini Ramaswamy v UOI,5 the court said that in case the Enquiry
Committee finds the judge guilty, then the matter goes to the Parliament. The Supreme Court has come to the
conclusion that under Article 124(4)
a full consideration on merits including correctness of the finding of “guilty” made by the Enquiry Committee
on the basis of materials before the Parliament is contemplated during the Parliamentary part of process of
removal of a judge.
This means that despite the finding of “guilty” by the Committee, the Parliament may decide, after
considering the matter, not to adopt the motion for removing the judge. This leads to the conclusion that the
concerned judge should also have an opportunity to comment on the finding of the Inquiry Committee. For
this purpose, therefore, the Speaker/Chairman of the House has to supply a copy of the Inquiry Committee
Report to the concerned judge while causing it to be laid before the Parliament. (See section 4(3) of the Act).
As regards judicial review, the court has ruled that if Parliament does not adopt the motion for removal of the
judge, the process ends there with no challenge available to anyone. The judicial review of the finding of
“guilty” made by Enquiry Committee may be permissible on limited grounds “pertaining only to the legality”,
but only after the making of the order of removal by the President in case, Parliament adopts the motion by
requisite majority. Resort to judicial review by the concerned judge between the time of conclusion of the
enquiry by the Committee and making of the order of removal by the President would be premature and is
unwarranted in the Constitutional Scheme.6 The Supreme Court has also held that the Inquiry Committee
appointed under Judges (Inquiry) Act cannot be treated as a “tribunal” for the purpose of Article 136 because
the report finding guilty of misbehaviour is in the nature of recommendation for his removal which may or
may not be acted upon by Parliament.
Since the Committee holding that the judge is guilty of any misbehaviour is not “final and conclusive”, it is
not legally permissible to hold that the Committee is a “tribunal” under Article 136 of the Constitution. This
means an appeal cannot lie before the Supreme Court from the Inquiry Committee under Article 136.
Once Parliament has passed the resolution removing the judge after following due procedure and the
President assents to the motion, the judge stands removed and there appears to be no need for any judicial
review thereafter. Otherwise, there is a chance of controversy arising between the Judiciary and Parliament. In
any case, judicial review can only be on procedural grounds and not on the merits of the grounds of removal.7
[Art 124.13.10] Analogous Provisions.—
Article 121 prevents discussion of the conduct of a Supreme Court Judge except upon a motion for
Dinesh Mishra
Page 164 of 195
address for removal under clause (4) of the present Article. Article 218 extends the provision of
clauses (4)-(5) of the present Article to High Court Judges.
[Art 124.14] CLAUSE (6) [Art 124.14.1] Ban on Practice
1. This provision is an innovation of the Indian Constitution, but it is compensated by the provision in
Article 128, making it possible to invite a retired Judge to act as a Judge of the Supreme Court for
some particular business or for a period of time.
2. The bar is only against “pleading or acting” in any court or before any authority. Obviously, it does
not prevent a Judge from expressing his personal opinion by speech or writing out of court. The words
“plead or act” have a technical meaning.
Analogous Provision.—The provision relating to High Court Judges in Article 220, post, is similar.
[Art 124.14.2] Independence of Judges of Supreme Court, how secured
See pp 5538 et seq., ante.
[Art 124.14.3] Power to punish for contempt of Supreme Court and its Judges
See under Article 129, post.
1 16 Corpus Juris Secundum, section 169.
2 (1923-24) 37 HARWARD LAW REVIEW, POWERS OF CONGRESS — A STUDY OF SEPARATION OF POWERS, by

PROFESSOR FRANKFURTER, FORMER JUDGE, SUPREME COURT OF AMERICA.
3 Huddart, Parker & Co v Moorehead, (1909) 8 CLR 330 .
4 See also Shell Co v Federal Commissioner of Taxation, 1930 All ER 671 : 1931 AC 275 .
5 United Engineering Union v Devanayagam, (1967) 2 All ER 367 ; See also R.P. Junior College, Mydukar v R. Vaidyanatha Iyer,
Secy. to Govt., Education Department, Hyderabad, AIR 1989 AP 96 [LNIND 1988 AP 237] .
6 S. Mohd. Ali v V.V. Mdhavarao, AIR 1964 AP 132 [LNIND 1962 AP 196] .
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Page 165 of 195
7 Muskrat v U.S., (1911) 219 US 346 (356).
8 Contempt of Courts Act, 1981.
9 Roberts v Parole Board, (2006) 2 All ER 39 .
10 See R (Anderson) v Secretary of State for the Home Dept., (2002) 4 All ER 336 .
11 John Alder, Constitutional and Administrative Law, 6th Edn, p 179.
12 Phillips and Jackson, Constitutional and Administrative Law, 6th Edn, p 13.
13 RAMANATHAIER’S LAW LEXICON – p 1234.
14 See also Jamal Uddin Ahmed v Abu Saleh Najmuddin, (2003) 4 SCC 257 [LNIND 2003 SC 260] : AIR 2003 SC 1917 [LNIND
2003 SC 260] .
15 CRAIG R. DUCAT – CONSTITUTIONAL INTERPRETATION.
16 A TREATISE ON THE CONSTITUTIONAL LIMITATION, by T. M. COOLEY, Indian Reprint 2005 at pp 91-92.
17 16 Corpus Juris – Secundum – section 169.
18 1923-24) 37 HARWARD LAW REVIEW – POWERS OF CONGRESS – A STUDY IN “SEPARATION OF POWERS” BY

PROF. FRANKFURTER (as he then was, later a justice of the Supreme Court of the Unit- ed States) and Prof. Landis.
19 16 Corpus Juris Secundum – section 169.
20 Muskrat v United States, (1911) 219 US 346.
22 Union v Devanayagam, (295) 734 L Ed 1682.
23 United Engineering Union v Devanayagam, (1967) All ER 367 (381).
24 Bharat Bank. v Employees of the Bharat Bank, (1950) SCR 459 : AIR 1950 SC 188 [LNIND 1950 SC 4] : 1950 LLJ 921 .
25 Rep. of the Committee on Ministers’ Powers, 1932 Cmd 73.
Dinesh Mishra
Page 166 of 195
26 Cooper v Wilson, (1937) 2 KB 309 (340).
27 United Breweries v Bath Justices, (1926) AC 586 (602).
28 Roberts v Parol Board, (2006) 2 All ER 39 .
29 R (Anderson) v Secretary of State for Home Department, (2002) 4 All ER 1089 .
30 See CONSTITUTIONAL AND ADMINISTRATIVE LAW by JOHN ALDER, 2007 Edn, at p 179.
31 HOOD PHILLIPS and JACKSON ON CONSTITUTIONAL AND ADMINISTRATIVE LAW, 8th Edn, (2001) chapter I, para
1.015 at p 11.
32 See Jamaluddin Ahmed v Abu Salem Najmuddin, AIR 2003 SC 1917 [LNIND 2003 SC 260] : (2003) 4 SCC 257 [LNIND 2003 SC
260] .
33 See ADMINISTRATIVE LAW by H.W.R. WADE and C.F. FORSYTH, 9th Edn, at p 41.
34 See JUDICIAL REVIEW OF ADMINISTRATIVE ACTION by DE SMITH, WOOLF AND JOWELL, 1995 Edn, pp 1011, 1012,
1013 and 1014; see also Engineering Mazdoor Sabha v Hind Cycles Ltd, AIR 1963 SC 874 [LNIND 1962 SC 337] : (1962) 2 LLJ
760 [LNIND 1962 SC 337] (SC); Associated Cement Cos v P.N. Sharma, AIR 1965 SC 1595 [LNIND 1964 SC 346] : (1965) 2
SCR 366 [LNIND 1964 SC 346] : (1965) I LLJ 433 (SC); All Party Hill Leaders’ Conference v W.A. Sagma, AIR 1977 SC 2155
[LNIND 1977 SC 264] : (1977) 4 SCC 161 [LNIND 1977 SC 264] ; Jaswant Sugar Mills v Laksh- mi Chand, AIR 1963 SC 677
[LNIND 1962 SC 308] : 1963 (Supp-1) SCR 242 : (1963) I LLJ 524 (SC); Kihoto Hollahan v Zachillhu, AIR 1993 SC 412 [LNIND
1992 SC 175] : 1992 (Supp-2) SCC 651; Hari Nagar Sugar Mills v Shyam Sundar, AIR 1961 SC 1699 : (1962) 2 SCR 339
[LNIND 1961 SC 206] .
35 Indira Gandhi v Raj Narain, AIR 1975 SC 2299 [LNIND 1975 SC 432] : 1976 (2) SCR 347 [LNIND 1975 SC 432] ; see also
Bharat Bank Ltd v Employees of Bharat Bank Ltd, AIR 1950 SC 188 [LNIND 1950 SC 4] : 1950 SCR 459 ; Maqbool Hussain v
State of Bombay, AIR 1953 SC 325 [LNIND 1953 SC 51] : 1953 SCR 730 [LNIND 1953 SC 51] ; Venkataraman v State, 1958 AIR
107 : 1958 SCR 1040 [LNIND 1957 SC 134] .
36 See Ram Krishna Dalmia v Justice Tendolkar, AIR 1958 SC 538 [LNIND 1958 SC 31] : 1959 SCR 279 [LNIND 1958 SC 31] .
37 M.C. Jain Kagzi, The Indian Administrative Law, 6th Edn, p 335.
38 Labour Relations Board v John East Iron Works, (1949) AC 134 (149). See also Bennett Coleman v UOI, AIR 1973 SC 106
[LNIND 1972 SC 514] : (1972) 2 SCC 788 [LNIND 1972 SC 514] ; State of Rajasthan v Savanivatra Kar- machari Hitkari Samiti,
(1995) 2 SCC 117 [LNIND 1995 SC 6] ; Premium Granites v State of TN, (1994) 4 SCC 691 ; BALCO Employees Union v UOI,
AIR 2002 SC 350 [LNIND 2001 SC 2808] : (2002) 2 SCC 333 [LNIND 2001 SC 2808] : (2002) I LLJ 550 (SC); Dy. Assistant Iron
& Steel Controller v Katralla Metal Corp, AIR 1972 SC 935 [LNIND 1972 SC 624] : (1972) 3 SCC 324 [LNIND 1972 SC 624] ;
R.K. Garg v UOI, AIR 1981 SC 2138 [LNIND 1981 SC 434] : (1981) 4 SCC 676 .
39 Cf. Cander v Crane Christmas & Co, (1951) 1 All ER 426 (442).
Dinesh Mishra
Page 167 of 195
40 Cf. Barton v Muir, LR 6 PC 134.
41 CONSTITUTIONAL INTERPRETATION by CRAIG R. DUCAT, 8th Edn.
42 State of Rajasthan v UOI, AIR 1977 SC 1361 [LNIND 1977 SC 214] : (1978) 1 SCR 1 [LNIND 1977 SC 214] : (1977) 3 SCC 592
[LNIND 1977 SC 214] .
43 DE SMITH “JUDICIAL REVIEW OF ADMINISTRATIVE ACTION” (1995 Edn) pp 311-14; WADE, ADMINISTRATIVE
LAW (9th Edn) pp 346-49; Bhut Nath Mate v State of WB, AIR 1974 SC 806 [LNIND 1974 SC 31] : (1974) 1 SCC 645 [LNIND
1974 SC 31] ; Cooper R.C. v UOI, AIR 1970 SC 564 [LNIND 1970 SC 40] : (1970) 1 SCC 248 [LNIND 1970 SC 40] : (1970) 3
SCR 530 [LNIND 1970 SC 40] .
44 Council of Civil Services Union v Minister for Civil Services, (1985) AC 374 : (1984) 3 All ER 935 .
45 Buttes Gas & Oil Co v Hammer, (1982) AC 888 : (1981) 3 All ER 616 .
46 S.R. Bommai v UOI, AIR 1994 SC 1918 [LNIND 1994 SC 318] : (1994) 3 SCC 1 [LNIND 1994 SC 318] ; Rameshwar Prasad v
UOI, (2005) 5 SCC 804 [LNIND 2006 SC 1219] ; Rameshwar Prasad (VI) v UOI, AIR 2006 SC 980 [LNIND 2006 SC 1219] :
(2006) 2 SCC 1 [LNIND 2006 SC 1219] .
47 State of Rajasthan v UOI, AIR 1977 SC 1361 [LNIND 1977 SC 214] : (1977) 3 SCC 592 [LNIND 1977 SC 214] ; Rameshwar
Prasad (VI) v UOI, AIR 2006 SC 980 [LNIND 2006 SC 1219] : (2006) 2 SCC 1 [LNIND 2006 SC 1219] .
48 B.R. Kapur v State of TN, AIR 2001 SC 3435 [LNIND 2001 SC 2120] : (2001) 7 SCC 231 [LNIND 2001 SC 2120] .
49 Colegrove v Green, (1946) 330 US 549.
50 See Minerva Mills Ltd v UOI, AIR 1980 SC 1789 [LNIND 1980 SC 257] : (1980) 3 SCC 625 [LNIND 1980 SC 257] : (1981) 1
SCR 206 [LNIND 1986 SC 307] .
51 Indra Sawhney v UOI, AIR 1993 SC 477 : 1992 Supp 2 SCR 454.
52 B.R. Kapur v State of TN, (2001) 7 SCC 231 [LNIND 2001 SC 2120] : AIR 2001 SC 3435 [LNIND 2001 SC 2120] : JT 2001(8) SC
40 [LNIND 2001 SC 2120] .
53 See GLOSSARY OF COMMON LEGAL TERMS.
54 See CRAIG R. DUCAT ON CONSTITUTIONAL INTERPRETATION.
55 See Ramanathaier, Advanced Law Lexicon, Book III, p 3027.
56 State of Rajasthan v UOI, AIR 1977 SC 1360 (1378) : (1977) 2 SCC 592 .
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57 S.R. Bommai v UOI, AIR 1994 SC 1918 [LNIND 1994 SC 318] : (1994) 3 SCC 1 [LNIND 1994 SC 318] .
58 Rameshwar Prasad (VI) v UOI, (2006) 2 SCC 1 [LNIND 2006 SC 1219] .
59 A.K. Roy v UOI, AIR 1982 SC 710 [LNIND 1981 SC 469] : (1982) 1 SCC 271 [LNIND 1981 SC 469] .
60 Madhav Rao Scindia v UOI, AIR 1971 SC 530 [LNIND 1970 SC 481] : (1971) 3 SCC 85 .
61 Egerton v Brownlow, (1853) 4 HLC 1.
62 For the doctrine of Judicial activism in India, see Ratan v Askar, (1991) 3 SCC 67 [LNIND 1991 SC 77] (paras. 17-18); Gupta v
President of India, AIR 1982 SC 149 : (1982) 2 SCR 365 : 1981 Supp SCC 87 (para. 26); cf. K. Veeraswami v UOI, (1991) 3 SCC
655 [LNIND 1991 SC 320] (paras. 121, 123). See also Oriental Insur- ance Co v Hansrajbhai, AIR 2001 SC 1832 [LNIND 2001
SC 637] : (2001) 5 SCC 175 [LNIND 2001 SC 895] ; State of AP v Nallamillli Rami Reddi, AIR 2001 SC 3616 [LNIND 2001 SC
1864] : (2001) 7 SCC 708 [LNIND 2001 SC 1864] ; Sri Ram Saha v State of WB, AIR 2004 SC 5080 [LNIND 2004 SC 1077] :
(2004) 11 SCC 497 [LNIND 2004 SC 1077] ; Vijayalakshamma v B.T. Shankar, AIR 2001 SC 1424 [LNIND 2001 SC 806] :
(2001) 4 SCC 558 [LNIND 2001 SC 806] .
63 See C. Ravichandran Iyer v A.M. Bhattacharjee, (1995) 5 SCC 457 [LNIND 1995 SC 876] ; Tarak Singh v Jyoti Basu, AIR 2005
SC 338 [LNIND 2004 SC 1157] : (2005) 1 SCC 201 [LNIND 2004 SC 1157] .
64 See CONSTITUTION LIMITATION by T.M. COOLEY, Indian Reprint 2005, at p 410.
65 See JUSTICE AND ADMINISTRATIVE LAW by WILLIAM A ROBSON, 3rd Edn at pp 67-68.
66 ADMINISTRATIVE LAW by H.W.R. WADE and C.F. FORSYTH, 9th Edn (2005) p 41.
67 Mersey Docks Trustees v Gibbs, (1866) LR 1 HC 93; See also WADE ON ADMINISTRATIVE LAW, 9th Edn, p 482.
68 dE SMITH, WOOLF and JOWELL ON JUDICIAL REVIEW, ADMINISTRATIVE LAW (1995 Edn) p 1008.
69 State of HP v Raja Mahendra Pal, AIR 1999 SC 1786 [LNIND 1999 SC 328] : (1999) 4 SCC 43 [LNIND 1999 SC 328] .
70 Indian National Congress v Institute of Social Welfare, AIR 2002 SC 2158 [LNIND 2002 SC 400] : (2002) 5 SCC 685 [LNIND
2002 SC 400] .
71 HOOD PHILLIPS and JACKSON ON CONSTITUTIONAL AND ADMINISTRATIVE LAW, 8th Edn (2001), chapter XX,
“Administration of Justice”, para 20.007 at p 420.
72 Jamaluddin Ahmed v Abu Salem Najmuddin, AIR 2003 SC 1917 [LNIND 2003 SC 260] : (2003) 4 SCC 257 [LNIND 2003 SC 260]
.
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73 Baliram Waman Hiray v Justice B. Lentin, AIR 1988 SC 2267 [LNIND 1988 SC 442] : (1988) 4 SCC 419 [LNIND 1988 SC 442] .
74 General Medical Council v BBC, (1998) 1 WLR 1573 .
75 Attorney-General v BBC, 1981 AC 303 : (1980) 3 All ER 161 .
76 General Medical Council v BBC, (1998) 1 WLR 1573 : (1998) 3 All E.R. 426 .
77 Halsbury, Laws of England, 4th Edn vol X, para 702 p 314.
78 ‘X” Ltd v Morgan-Grapian (Publishers) Ltd, (1990) 1 All ER 616 : (1990) 2 All ER 13 (HL).
79 AG of Australia v Reginam, (1957) 2 All ER 45 ; (1997) 3 SCR 3 (A Canadian case).
80 Evans v Gore, 64 L Ed 887(891): 253 U.S. 245.
81 Evans v Gore, 64 L Ed 887 (891): 253 U.S. 245.

82 LAWS OF ENGLAND, 3rd Edn, vol 9.
83 Huddart, Parker & Co, (1909) 8 CLR 330 (357); Shell Co v Federal Commr of Taxation, (1931) AC 275 .
84 A.C. Cos v Sharma, AIR 1965 SC 1595 [LNIND 1964 SC 346] (1599) : (1965) 2 SCR 366 [LNIND 1964 SC 346] : (1965) 1 LLJ
433 [LNIND 1964 SC 346] .
85 Harinagar Sugar Mills v Shyam Sundar, AIR 1961 SC 1669 [LNIND 1961 SC 206] (1680-81) : (1962) 2 SCR 339 [LNIND 1961
SC 206] : (1961) 31 Com Cases 387 .
86 Engineering Mazdoor Sabha v Hind Cycles, AIR 1963 SC 874 [LNIND 1962 SC 337] : 1963 (Supp-1) SCR 625 : (1962) 2 LLJ 760
[LNIND 1962 SC 337] .
87 McPherson v McPherson, (1936) AC 177 (PC).
88 See Indira Gandhi v Raj Narain, AIR 1975 SC 2299 [LNIND 1975 SC 432] : (1975) SCR 459 ; Maqbool Hussain v State of
Bombay, AIR 1953 SC 325 [LNIND 1953 SC 51] : 1953 SCR 730 [LNIND 1953 SC 51] .
89 Ram Krishna Dalmia v Justice Tendolkar, AIR 1958 SC 538 [LNIND 1958 SC 31] : . 1959 SCR 279 [LNIND 1958 SC 31] .
90 UOI v Charles David, AIR 2000 SC 204 : (1999) 9 SCC 172 .
91 Re, Agricultural Industries Ltd, (1952) 1 AR ER 1188 (1189).
Dinesh Mishra
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92 To the extent it goes, this statute overrides the actual decision in Scott v Scott, (1913) AC 417 .
93 As to Indian statutes, see Author’s LAW OF THE PRESS IN INDIA; CRIMINAL PROCEDURE CODE.
94 Cf. Baedische Anilin Fabrik, (1883) 24 Ch D 156 .
95 Scott v Scott, (1913) AC 417 .
1 McGonnell v U.K., (2000) 30 EHRR 241 .
2 Tarak Singh v Jyoti Basu, AIR 2005 SC 338 [LNIND 2004 SC 1157] : (2005) 1 SCC 201 [LNIND 2004 SC 1157] .
4 See Indira Jaisingh v Registrar-General, Supreme Court of India, (2003) 5 SCC 494 [LNIND 2003 SC 523] : 2003 (3) Ker LT 198 .
5 C. Ravichandran Iyer v Justice A.M. Bhattacharjee, (1995) 5 SCC 457 [LNIND 1995 SC 876] .
6 Brahma Prakash Sharma v State of UP, AIR 1954 SC 10 [LNIND 1953 SC 59] : (1953) 4 SCR 1169 [LNIND 1953 SC 59] ; C.
Ravichandran Iyer v Justice A.M. Bhattacharjee, (1995) 5 SCC 457 [LNIND 1995 SC 876] : 1995 (Supp-3) SCR 319 : (1995) 6 JT
359 .
7 P.K. Ghosh v J.G. Rajput, AIR 1996 SC 513 [LNIND 1995 SC 1100] : (1995) 6 SCC 744 [LNIND 1995 SC 1100] .
8 State of WB v Shivananda Pathak, AIR 1998 SC 2050 : (1998) 5 SCC 513 (1998) 2 LLJ 887 [LNIND 1998 SC 184] ; S.K. Warikoo
v State of J.&K., (1998) 9 SCC 677 [LNIND 1997 SC 1274] .
9 R. Hammond v Secretary of State for the Home Department, (2006) 1 All ER 219 .
10 Republican Party of Minnesota v White, (2002) 536 US 765.
11 See Hanschildt case, (1989) ECHR (A) 154.
12 Adio v A.G., (1991) LRC (Const.) 927 —Nigeria, Article 33(1). See DURGA DAS BASU ON HU- MAN RIGHTS IN
CONSTITUTIONAL LAW, 2nd Edn (2003) at pp 436-37.
13 UOI v Gopal Chandra Misra, AIR 1978 SC 694 [LNIND 1978 SC 54] ; (1978) 2 SCC 301 [LNIND 1978 SC 54] : (1978) 3 SCR 12
[LNIND 1978 SC 54] .
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14 Chetak Construction Ltd v Om Prakash, AIR 1998 SC 1855 [LNIND 1998 SC 457] : (1998) 4 SCC 577 [LNIND 1998 SC 457] :
(1998) 3 JT 269 .
15 Indra Sawhney v UOI, AIR 1993 SC 477 (727) : 1992 (Supp-3) SCC 212 : (1992) 6 JT 273 .
16 See JUSTICE AND ADMINISTRATIVE LAW by WILLIAM A. ROBSON, 3rd Edn at pp 67, 415-16.
[LNIND 1978 SC 54] .
18 Chetak Construction Ltd v Om Prakash, AIR 1998 SC 1855 [LNIND 1998 SC 457] : (1998) 4 SCC 577 [LNIND 1998 SC 457] .
19 Indra Sawhney v UOI, AIR 1993 SC 477 (at page 727) : 1992 (Supp-3) SCC 212 : (1992) 6 JT 273 .
20 State of Rajasthan v Prakash Chand, AIR 1998 SC 1344 [LNIND 1997 SC 1529] : (1998) 1 SCC 1 [LNIND 1997 SC 1529] :
(1997) 9 JT 492 .
21 A.M. Mathur v Pramod Kumar Gupta, AIR 1990 SC 1737 [LNIND 1990 SC 177] : (1990) 2 SCC 533 [LNIND 1990 SC 177] :
(1990) 2 SCR 110 [LNIND 1990 SC 177] .
22 See AIR 2001 Journal, section 154 (155); see also Shri Harish Chandra v Justice Ali Ahmed, AIR 1986 Pat 65 [LNIND 1985 PAT
2] : 1986 Cr LJ 320 .
23 Gupta v President of India, AIR 1982 SC 149 : (1982) 2 SCR 365 : 1981 Supp SCC 87 .—7 Judges.
24 1 B1 Com 69.
25 A TREATISE ON THE CONSTITUTIONAL LIMITATION by T.M. COOLEY, 2005 Indian Re- print at p 50.
26 See also Hindustan Lever Ltd v Ashok Vishnu Kate, (1995) 6 SCC 326 [LNIND 1995 SC 924] ; Dishamber Dass Kohli v Satya
Bhalla, (1993) 1 SCC 566 [LNIND 1993 SC 29] ; P. Periasami v P. Periathambi, (1995) 6 SCC 523 [LNIND 1995 SC 978] ; B.
Lakshmipa- thi Naidu v D.E.O., AIR 1992 SC 2003 [LNIND 1992 SC 496] : (1992) 4 SCC 8 [LNIND 1992 SC 496] (1992) 2 LLJ
607 [LNIND 1992 SC 496] (SC); Eapen Thomas v Syed Mohammed Kunju, AIR 1992 SC 1553 [LNIND 1992 SC 252] : (1992) 2
SCC 721 [LNIND 1992 SC 252] ; Gangeshwar Ltd v State of UP, (1995) 6 SCC 84 ; Govt. of W.B. v Tarun K. Roy, (2004) 1 SCC
347 [LNIND 2003 SC 1001] ; Kunhamma v Akkali Purushothaman, (2007) 11 SCC 181 [LNIND 2007 SC 470] : (2007) 3 Ker LT
599 ; S. Bhrahmanand v K.R. Muthugopal, (2005) 12 SCC 764 [LNIND 2005 SC 833] .
27 See Zee Tele Films Ltd (M/s.) v UOI, AIR 2005 SC 2677 [LNIND 2005 SC 101] : (2005) 4 SCC 649 [LNIND 2005 SC 101] : JT
(2005) 2 SC 8 .
28 Paisner v Goodrich, 1955 All ER 530 : (1955) 2 WLR 1071 .
29 ICICI Bank Ltd v Municipal Corp of Greater Bombay, AIR 2005 SC 3315 [LNIND 2005 SC 579] .
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30 See Cull v Inland Revenue Commissioner, (1939) 3 All ER 762 ; Morelle Ltgd. v Wakeling, (1955) 1 All ER 708 : (1955) 1 WLR
672 .
31 Akhil Gujarat Pravasi v S. Mahamandal, AIR 2004 SC 3894 [LNIND 2004 SC 456] : 2004 (5) SCC 155 [LNIND 2004 SC 456] .
See Zee Tele Films Ltd (M/s.) v UOI, AIR 2005 SC 2677 [LNIND 2005 SC 101] : (2005) 4 SCC 649 [LNIND 2005 SC 101] : JT
(2005) 2 SC 8 .
34 CIT v Sun Engg. Works Pvt Ltd, AIR 1993 SC 43 : (1992) 4 SCC 363 .
35 Municipal Corp of Greater Bombay v Bharat Petroleum Ltd, AIR 2002 SC 1638 [LNIND 2002 SC 249] : (2002) 4 SCC 219
[LNIND 2002 SC 249] (227).
36 Ram Krishna v Tendolkar, (1959) SCR 279 [LNIND 1958 SC 31] (295) : AIR 1958 SC 538 [LNIND 1958 SC 31] .
37 Brajnandan v Jyoti Narain, (1955) 2 SCR 955 [LNIND 1955 SC 98] : AIR 1956 SC 66 [LNIND 1955 SC 98] ; Venkataraman v
UOI, (1954) SCR 1150 [LNIND 1954 SC 55] : AIR 1954 SC 375 [LNIND 1954 SC 55] .
38 Granville Austen, The Indian Constitution – Cornerstone of a Nation, Nineth Impression, chapter VII, pp 164-166.
39 See THE INDIAN CONSTITUTION, CORNERSTONE OF A NATION, CHAP. VII, “The Judiciary and the Social Revolution”, at
p 164.
40 Municipal Corp of Greater Bombay v Bharat Petroleum Ltd, AIR 2002 SC 1638 [LNIND 2002 SC 249] .
42 Subhesh v UOI, AIR 1991 SC 631 [LNIND 1990 SC 630] : 1990 (Supp-2) SCR 433 : 1991 (Supp-1) SCC 574 (para. 8)—3 Judges.
43 Ibid; UOI v Sankalchand Himatlal Sheth, AIR 1977 SC 2328 [LNIND 1977 SC 268] : (1978) 1 SCR 423 [LNIND 1977 SC 268] :
(1977) 4 SCC 193 [LNIND 1977 SC 268] .
44 See THE INDIAN CONSTITUTION, CORNERSTONE OF A NATION by GRANVILLE AUS- TIN, 9th Impression (2005), at pp
175-76.
45 See JUSTICE AND ADMINISTRATIVE LAW by WILLIAM A. ROBSON, 3rd Edn at pp 43-44.
46 Brij Mohan Lal v UOI, (2012) 6 SCC 502 [LNIND 2012 SC 1201] : (2012) 4 JT 212 : (2012) 4 Scale 450 [LNIND 2012 SC 1201] .
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47 See A.C. Thalwal v High Court of Himachal Pradesh, AIR 2000 SC 2732 [LNIND 2000 SC 1118] : (2000) 7 SCC 1 [LNIND 2000
SC 1118] (9).
48 See Bhim Singh v UOI, (2010) 5 SCC 538 [LNIND 2010 SC 449] : (2010) 5 JT 166 [LNIND 2010 SC 449] ; see also State of UP v
Sanjay Kumar, (2012) 6 All LJ 746 (SC) : (2012) 8 SCC 537 [LNINDORD 2012 SC 416] .
49 See also State of Bihar v Bal Mukund, AIR 2000 SC 1296 [LNIND 2000 SC 481] (1317) : (2000) 4 SCC 640 [LNIND 2000 SC
481] ; Supreme Court Advocates on Record Assn. v UOI, AIR 1994 SC 268 [LNIND 1993 SC 1231] : (1993) 4 SCC 441 : 1993
(Supp-2) SCR 659.
50 State of Bihar v Bal Mukund Sah, AIR 2000 SC 296 : (2000) 4 SCC 640 [LNIND 2000 SC 481] .
51 See M.P. Jain, Indian Constitutional Law, vol I 6th Edn, pp 405-407.
52 See A.K. Gopalan v State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22] (106) : (1950) SCR 88 [LNIND 1950 SC 22] .
53 Marbury v Madison, 5 US (1 Cranch) 137 : 2 L Ed 60 (1803).
54 See Madbury v Madison, 5 US (1 Cranch) 137 : L Ed 60 (1803).

55 Shamsher Singh v State of Punjab, AIR 1974 SC 2192 [LNIND 1974 SC 246] (2230) : (1974) 2 SCC 831 [LNIND 1974 SC 246] :
(1975) 1 SCR 814 [LNIND 1974 SC 246] ; UOI v Sankalchand Himatlal Sheth, AIR 1977 SC 2328 [LNIND 1977 SC 268] : (1978)
1 SCR 423 [LNIND 1977 SC 268] : (1977) 4 SCC 193 [LNIND 1977 SC 268] (para. 51, BHAGWATI, J.).
56 UOI v Sankalchand Himatlal Sheth, AIR 1977 SC 2328 [LNIND 1977 SC 268] : (1978) 1 SCR 423 : (1977) 4 SCC 193 [LNIND
1977 SC 268] (para. 51, BHAGWATI, J.); Gupta v President of India, AIR 1982 SC 149 : (1982) 2 SCR 365 : 1981 Supp SCC 87
(paras. 867, 877, 880, PATHAK, J.).
57 Gupta v President of India, AIR 1982 SC 149 : (1982) 2 SCR 365 : 1981 Supp SCC 87 (FAZAL ALI, J., para. 318;
BHAGAWATI, J., para 26; TULZAPURKAR, J., paras. 596-609); VENKA TARAMIAH, J, in the same case, did not go so far but
observed that it is “one of the central values on which our Constitution is based” (para. 1051). This, however, is a vague
expression, which would be meaningless unless it means the same thing as a “basic feature”. [Also UOI v Sankalchand Himatlal
Sheth, AIR 1977 SC 2328 [LNIND 1977 SC 268] : (1978) 1 SCR 423 [LNIND 1977 SC 268] : (1977) 4 SCC 193 [LNIND 1977 SC
268] (para 12, CHANDRACHUD, J.)—’cardinal feature’; (paras. 46, 51, 59) BHAGWATI, J., Kumar Padma Prasad v UOI,
(1992) 2 SCC 428 [LNIND 1992 SC 225] : AIR 1992 SC 1213 [LNIND 1992 SC 225] (para. 37). See also Supreme Court
Advocates-on-Record Association v UOI, AIR 1994 SC 268 [LNIND 1993 SC 1231] : (1993) 4 SCC 441 ; Kumar Padma Prasad v
UOI, AIR 1992 SC 1213 [LNIND 1992 SC 225] : (1992) 2 SCC 428 [LNIND 1992 SC 225] ; High Court of Ju- dicature, Bombay v
Shirish Kumar R. Patil, AIR 1997 SC 2631 [LNIND 1997 SC 753] : (1997) 6 SCC 339 [LNIND 1997 SC 753] .
58 Vide C6, vol O, pp 197 ff.
60 See Bhim Singh v UOI, (2010) 5 SCC 538 [LNIND 2010 SC 449] : (2010) 5 JT 166 [LNIND 2010 SC 449] ; State of UP v Sanjay
Kumar, (2012) 8 SCC 537 [LNINDORD 2012 SC 416] : (2012) 6 All LJ 746 (SC).
61 State of Bihar v Bal Mukund, AIR 2000 SC 1296 [LNIND 2000 SC 481] (1317) : (2000) 4 SCC 640 [LNIND 2000 SC 481] .
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62 Supreme Court Advocates-on-Record Association v UOI, AIR 1994 SC 268 [LNIND 1993 SC 1231] : (1993) 4 SCC 441 ; L.
Chandra Kumar v UOI, AIR 1997 SC 1125 [LNIND 1997 SC 488] : (1997) 3 SCC 261 [LNIND 1997 SC 488] ; Indira Nehru
Gandhi v Raj Narain, AIR 1975 SC 2299 [LNIND 1975 SC 432] : 1975 (Supp) SCC 1; Minerva Mills Ltd v UOI, AIR 1980 SC
1789 [LNIND 1980 SC 257] : (1980) 3 SCC 625 [LNIND 1980 SC 257] ; P. Sambamurthy v State of AP, AIR 1987 SC 663
[LNIND 1986 SC 538] : (1987) 1 SCC 362 [LNIND 1986 SC 538] : (1987) 1 LLJ 221 [LNIND 1986 SC 538] ; Kihota Hollohon v
Zachilhu, AIR 1993 SC 412 [LNIND 1992 SC 175] : 1992 (Supp-2) SCC 651; S.P. Gupta v UOI, AIR 1982 SC 149 : 1981 (Supp)
SCC 87.
63 Golden v U.K., (1970) 1 EHRR 524 .
64 Liyanag v R., (1966) 1 All ER 650 ; Stefaneli v San Marino, (2001) 33 EHRR 16 .
65 Re., Mc., (1985) AC 528 (HL).
66 Mungaroo v The Queen, (1991) 1 WLR 1351 ; Lokabail (VK) v Bayfield Properties Ltd, (2002) 2 WLR 870 .
67 Millar v Dickson, (2002) 3 All ER 1041 .
68 CAD vol XI, p 837.
69 See Tirupati Balaji Developers Pvt Ltd v State of Bihar, AIR 2004 SC 2351 [LNIND 2004 SC 538] : (2004) 5 SCC 1 [LNIND 2004
SC 538] .
70 K. Veerasami v UOI, (1991) 3 SCC 655 [LNIND 1991 SC 320] .
71 Rajiv Ranjan Singh (Lalan) v UOI, (2005) 11 SCC 312 [LNIND 2006 SC 629] .
72 Hon’ble Chief Justice of High Court, M.P. v Mohan Kumar, 1994 (Supp-2) SCC 602.
73 L. Chandra Kumar v UOI, AIR 1997 SC 1125 [LNIND 1997 SC 488] : (1997) 3 SCC 261 [LNIND 1997 SC 488] .
75 Claude C. Connally v General Construction Co, (1926) 70 L Ed 322 (328).
76 Amritsar Municipality v State of Punjab, AIR 1969 SC 1100 [LNIND 1969 SC 27] : (1969) 1 SCC 475 [LNIND 1969 SC 27] .
77 A.K. Gopalan v State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22] : (1950) SCR 88 [LNIND 1950 SC 22] .
78 A.S. Krishnan v State of Madras, AIR 1957 SC 297 [LNIND 1956 SC 106] : (1957) SCR 399 [LNIND 1957 SC 10] .
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79 See Municipal Committee v State of Punjab, 1969 AIR 1100 : 1969 SCR (3) 447 .
80 Jagmohan v State of UP, AIR 1973 SC 947 [LNIND 1972 SC 477] (952) : 1973 SCR (2) 541 .
81 Collector of Customs v Sampathu, AIR 1962 SC 316 [LNIND 1961 SC 312] (328) : 1962 SCR (3) 786 .
82 P. Pathumma v State of Kerala, AIR 1977 SC 770 : (1978) 2 SCC 1 [LNIND 1978 SC 11] : (1978) 2 SCR 537 [LNIND 1978 SC
11] .
83 Municipal Committee v State of Punjab, 1969 AIR 1100 : 1969 SCR (3) 447 .
85 VII CAD 853 and 1000.

86 See A.K. Gopalan v State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22] : (1950) SCR 88 [LNIND 1950 SC 22] .
87 See Anti-Fascist Committee v Me Grath, (1951) US 123; Betts v Brady, (1942) 216 US 455; Ro- chin v California, (1952) 342 US
165.
88 See Hoskot v State of Maharashtra, AIR 1978 SC 1548 [LNIND 1978 SC 199] : 1979 SCR (1) 192 ; Hussainara v Home
Secretary, AIR 1979 SC 1360 : 1979 SCR (3) 169 ; Sunil v Delhi Admn., AIR 1978 SC 1675 [LNIND 1978 SC 215] : 1979 SCR
(1) 392 ; State of Maharashtra v Champalal, AIR 1981 SC 1675 [LNIND 1981 SC 340] : 1982 SCR (1) 299 .
89 Maneka Gandhi v UOI, AIR 1978 SC 597 [LNIND 1978 SC 25] : (1978) 1 SCC 248 [LNIND 1978 SC 25] .
90 Hussainara v Home Secretary, AIR 1979 SC 1360 : 1979 SCR (3) 169 ; Hoskot v State of Maha- rashtra, AIR 1978 SC 1548
[LNIND 1978 SC 199] : 1979 SCR (1) 192 ; Sunil v Delhi Admn., AIR 1978 SC 1675 [LNIND 1978 SC 215] : 1979 SCR (1) 392 ;
State of Maharashtra v Champalal, AIR 1981 SC 1675 [LNIND 1981 SC 340] : 1982 SCR (1) 299 ; Re. Special Courts Bill, 1978
AIR 1979 SC 478 [LNIND 1978 SC 661] .
91 Re. Special Courts Bill (supra).
92 Bachan Singh v State of Punjab, AIR 1980 SC 898 [LNIND 1980 SC 260] : (1980) 2 SCC 684 [LNIND 1980 SC 261] .
93 Gopalan v State of Madras, 1950 SCR 88 [LNIND 1950 SC 22] .
94 Cooper v UOI, AIR 1970 SC 564 [LNIND 1970 SC 40] : (1970) 1 SCC 248 [LNIND 1970 SC 40] .
96 See Sunil v Delhi Admn., AIR 1978 SC 1675 [LNIND 1978 SC 215] : : 1979 SCR (1) 392 .
97 See Prem Chand v UOI, 1981 Cr LJ 5 (SC) para 9 : 1981 AIR 613 : 1981 SCR (1) 1262 ; Kishore v State of Rajasthan, (1981) Cr
LJ 17 – para 10 : 1981 AIR 625 : 1981 SCR (1) 995 ; See also Sunil v Delhi Admn., AIR 1980 SC 1579 (para 15) : 1980 SCR (2)
557 ; Nand Lal v State of Punjab, AIR 1981 SC 2041 [LNIND 1981 SC 388] (para 81) : 1982 SCR (1) 718 .
1 See Roy v UOI, AIR 1982 SC 710 [LNIND 1981 SC 469] : 1982 SCR (2) 272 ; Gopalan v State of Madras, (1950) SCR 88
[LNIND 1950 SC 22] : 1950 AIR 27 .
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2 R. v Beauregard, (1987) LRC (Const) 180 (188 ff.) Can (SC).

3 Article 10 of the Universal Declaration of Human Rights emphasises the right of everyone to a fair and public hearing by “an
independent and impartial tribunal”.
4 U.S. v Wood, (1936) 299 US 123 (145), HUGHES, C.J.
5 Cited by JUSTICE VAN DEVANTER in Evans v Gore, 64 L Ed 887.
6 But in India, the word “government servant” is used in the technical sense and it has been held that Judges of the Supreme Court
and a High Court hold “constitutional office” and are not “government servants” in the technical sense. K. Veeraswami v UOI,
(1991) 3 SCC 655 [LNIND 1991 SC 320] (para. 9); Un- ion of India v Sankalchand Himatlal Sheth, AIR 1977 SC 2328 [LNIND
1977 SC 268] : (1978) 1 SCR 423 [LNIND 1977 SC 268] : (1977) 4 SCC 193 [LNIND 1977 SC 268] (paras. 32, 50).
7 In the U.S.A. this is constitutionally ensured by the “Due Process” Clause [Tumey v Ohio, (1927) 273 US 510; Re Murchisan,
(1955) 349 US 133].
8 Cf. DENNING, THE ROAD TO JUSTICE, 1955, p 11.

9 Leversidge v Anderson, (1942) AC 206 , per LORD ATKIN.
10 BRACTON, DE LEGIBUS (Swiss Edn, 1854), 5b.
11 Prohibitions Del Roy, (1607) 12 Co Rep. 63; see the dialogue between COKE. C.J. and KING JAMES I, quoted at para. 1052 of
Gupta v President of India, AIR 1982 SC 149 : (1982) 2 SCR 365 : 1981 Supp SCC 87 .
12 Entick v Carrington, (1765) 19 St Tr 1030.
13 Johnstone v Pedlar, (1921) 2 AC 262 .
14 Kawasaki v Bentham S.S. Co, (1930) 2 KB 544 (552).
15 Learned Hand, Bill of Rights, 1958, p 77.

16 JUSTICE AND ADMINISTRATIVE LAW by WILLIAM A ROBSON, 3rd Edn at pp 43, 48.
17 R v Sussex Justices Exp. McCarthy, (1924) 1 KB 256 .
18 See DE SMITH ON JUDICIAL REVIEW, 2007 Edn, pp 499-500.
19 See UOI v Sankalchand Himatlal Seth, AIR 1977 SC 2328 [LNIND 1977 SC 268] : (1977) 4 SCC 193 [LNIND 1977 SC 268] :
(1978) 1 SCR 423 [LNIND 1977 SC 268] .
20 Chandra Mohan v State of UP, AIR 1966 SC 1987 [LNIND 1966 SC 148] : (1967) 1 SCR 77 [LNIND 1966 SC 148] ; see also
M.M.Gupta v State of J & K, AIR 1982 SC 1579 [LNIND 1982 SC 145] : (1982) 3 SCC 412 [LNIND 1982 SC 145] .
21 C. Ravichandran Iyer v Justice A.M. Bhattacharjee, (1995) 5 SCC 457 [LNIND 1995 SC 876] : 1995 (Supp-3) SCR 319 : (1995) 6
JT 359 ; see also High Court of Judicature of Bombay through its Registrar v Shirish Ku- mar Rangrao Patil, AIR 1997 SC 2631
[LNIND 1997 SC 753] : (1997) 6 SCC 339 [LNIND 1997 SC 753] .
22 See S.P. Gupta v UOI, AIR 1982 SC 149 : 1981 (Supp) SCC 87 referred in Registrar (Administra- tion) High Court of Orissa v
Sisir Kanta Satpathy, AIR 1999 SC 3265 [LNIND 1999 SC 817] : (1999) 7 SCC 725 [LNIND 1999 SC 817] .
23 Supreme Court Advocates on Record Assn. v UOI, AIR 1994 SC 268 [LNIND 1993 SC 1231] : 1993) 4 SCC 441 .
24 High Court of Judicature of Bombay through its Registrar v Shirish Kumar Rangrao Patil, AIR 1997 SC 2631 [LNIND 1997 SC
753] : (1997) 6 SCC 339 [LNIND 1997 SC 753] .
25 Supreme Court Advocates on Record Assn. v UOI, AIR 1994 SC 268 [LNIND 1993 SC 1231] : 1993) 4 SCC 441 ; see also High
Court of Judicature of Bombay through its Registrar v Shirish Kumar Rangrao Patil, AIR 1997 SC 2631 [LNIND 1997 SC 753] :
(1997) 6 SCC 339 [LNIND 1997 SC 753] ; S.P. Gupta v UOI, AIR 1982 SC 149 : 1981 (Supp) SCC 87.
26 The Queen v Beauregard, 1987 LRC 180 .
27 Valente v The Queen, (1985) 2 SCR 673 : 1985 CanLII 25 (SCC).
28 Wilson’s Case, 1943, referred to in ALLEN, LAW AND ORDERS, 4th Edn, 448.
29 Cooper v Aaron, (1958) 357 US 1.
30 Gupta v President of India, AIR 1982 SC 149 : (1982) 2 SCR 365 : 1981 Supp SCC 87 (paras. 26, BHAGWATI, J. 333. FAZAL
ALI, J. 704, DESAI, J. 1051, VENKATARAMIAH, J.).
Dinesh Mishra
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32 Third Sch, Forms IV and VIII, vol p, pp 219, 220.
33 High Court of Judicature of Bombay v Shirish Kumar R. Patil, AIR 1997 SC 2631 [LNIND 1997 SC 753] : (1997) 6 SCC 339
[LNIND 1997 SC 753] .
34 UOI v Sankalchand Himatlal Seth, AIR 1977 SC 2328 [LNIND 1977 SC 268] : (1977) 4 SCC 193 [LNIND 1977 SC 268] .
35 Also see All Kerala Poor Aid Legal Association, Trivandrum v Chief Justice of Kerala, AIR 1990 Ker 241 [LNIND 1989 KER 450]
; Supreme Court Advocates-on-Record Association v UOI, AIR 1994 SC 268 [LNIND 1993 SC 1231] : (1993) 4 SCC 441 ; UOI v
Prathibha Bonnerjea, AIR 1996 SC 693 [LNIND 1995 SC 1158] : (1995) 6 SCC 765 [LNIND 1995 SC 1158] .
36 T. Fenn Walter v UOI, AIR 2002 SC 2679 [LNIND 2002 SC 429] : (2002) 6 SCC 184 [LNIND 2002 SC 429] .
37 Vide Author’s CRIMINAL PROCEDURE CODE.
38 Gupta v President of India, AIR 1982 SC 149 : (1982) 2 SCR 365 : 1981 Supp SCC 87 (paras. 26, BHAGWATI, J.; 333. FAZAL
ALI, J. 704, DESAI, J. 1051, VENKATARAMIAH, J.). See also Supreme Court Advocates-on-Record Association v UOI, AIR
1994 SC 268 [LNIND 1993 SC 1231] : (1993) 4 SCC 441 .
39 Dennis v United States, 95 L Ed 1137 (1161) : 341 U.S. 494.

40 Furman v Georgia, 33 L Ed 2d 346 : (1972) 408 US 238 : 92 S.Ct. 2726.
41 See Denning, Independence of Judiciary – Presidential Address 1949-1950.
42 UOI v Sankalchand Himatlal Seth, AIR 1977 SC 2328 [LNIND 1977 SC 268] : (1977) 4 SCC 193 [LNIND 1977 SC 268] : (1978)
1 SCR 423 [LNIND 1977 SC 268] .
43 Queen v Grey, (1900) 2 QB 234 referred in Chetak Construction Ltd v Om Prakash, AIR 1998 SC 1885 : (1998) 4 SCC 577
[LNIND 1998 SC 457] : (1998) 3 JT 269 .
44 Surya Prakash Khatri v Smt. Madhu Trehan, (2001) Cr LJ 3476 : 2001 (59) DRJ 298 [LNIND 2001 DEL 719] ; see also R.C.
Cooper v UOI, AIR 1970 SC 1318 [LNIND 1970 SC 261] : (1970) 2 SCC 298 [LNIND 1970 SC 40] : (1971) 1 SCR 512 .
45 See D.C. Saxena v Hon’ble Chief Justice of India, AIR 1996 SC 2481 [LNIND 1996 SC 1083] : (1996) 5 SCC 216 [LNIND 1996
SC 2653] ; P.N. Duda v P. Shiv Shankar, AIR 1988 SC 1208 : (1988) 3 SCC 167 : (1988) 3 SCR 547 ; C. Ravi- chandran Iyer v
Justice A.M. Bhattacharjee, (1995) 5 SCC 457 [LNIND 1995 SC 876] : 1995 (Supp-3) SCR 319 : (1995) 6 JT 359 ; Baradakanta
Mishra v The Registrar, Orissa High Court, AIR 1974 SC 710 [LNIND 1973 SC 346] : (1975) 3 SCC 13 [LNIND 1973 SC 408] .
46 See Arundati Roy, Re., AIR 2002 SC 1375 [LNIND 2002 SC 174] : (2002) 2 SCC 343 : (2002) 2 SCR 213 .
47 D.C. Saxena v Hon’ble Chief Justice of India, AIR 1996 SC 2481 [LNIND 1996 SC 1083] : (1996) 5 SCC 216 [LNIND 1996 SC
2653] ; see also Ajay Kumar Pandey, Re., AIR 1998 SC 3299 [LNIND 1998 SC 930] : (1998) 7 SCC 248 [LNIND 1998 SC 930] :
(1988) 6 JT 571 : (1988) 7 Supreme 473 .
48 See Sanjiv Dutta, Re. (1995) 3 SCC 619 : (1995) 2 SCJ 107 – referred in Ajay Kumar Pandey, Re., AIR 1998 SC 3299 [LNIND
1998 SC 930] : (1998) 7 SCC 248 [LNIND 1998 SC 930] .
49 See U.P. Sales Tax Service Assn. v Taxation Bar Assn., Agra, AIR 1996 SC 98 [LNIND 1995 SC 861] (101) : (1995) 5 SCC 716
[LNIND 1995 SC 861] ; see also Brahma Prakash Sharma v State of UP, AIR 1954 SC 10 [LNIND 1953 SC 59] : (1953) SCR
1169 [LNIND 1953 SC 59] .
Dinesh Mishra
Page 178 of 195
50 Narmada Bachao Andolan v UOI, AIR 1999 SC 3345 [LNIND 1999 SC 946] : (1999) 8 SCC 308 [LNIND 1999 SC 946] : (1999)
8 JT 354 .
51 See Arundati Roy, Re., AIR 2002 SC 1375 [LNIND 2002 SC 174] : (2002) 2 SCC 343 : (2002) 2 SCR 213 ; P.N. Duda v P. Shiv
Shankar, AIR 1988 SC 1208 : (1988) 3 SCC 167 : (1988) 3 SCR 547 ; D.C. Saxena v Hon’ble Chief Justice of India, AIR 1996 SC
2481 [LNIND 1996 SC 1083] : (1996) 5 SCC 216 [LNIND 1996 SC 2653] . See Jagdish Swarup, Con- stitutional Law of India, vol
II 2nd Edn, pp 1935-1941.
52 See Ajay Kumar Pandey, Re., AIR 1998 SC 3299 [LNIND 1998 SC 930] : (1998) 7 SCC 248 [LNIND 1998 SC 930] ; Delhi
Judicial Service Assn. v State of Gujarat, AIR 1991 SC 2176 [LNIND 1991 SC 446] : (1991) 4 SCC 400 : (1991) 3 SCR 936
[LNIND 1991 SC 446] ; Jaikunal v State of UP, AIR 1984 SC 1374 [LNIND 1984 SC 157] : (1984) 3 SCC 405 [LNIND 1984 SC
157] ; Lalith Mohan Das v Advocate General, AIR 1957 SC 250 [LNIND 1956 SC 107] : (1957) SCR 77 [LNIND 1956 SC 100] ;
M.R. Sanghi v High Court of Punjab & Haryana, AIR 1991 SC 1834 [LNIND 1991 SC 333] : (1991) 3 SCC 600 [LNIND 1991 SC
333] ; Vinay Chandra Mishra, Re. AIR 1995 SC 2348 : (1995) 2 SCC 584 .
53 Act of Settlement, 1701, see under Article 124(2), post; DENNING, ROAD TO JUSTICE, 1955, pp 14-15.
54 See JUSTICE AND ADMINISTRATIVE LAW by WILLIAM A. ROBSON, 3rd Edn at p 47.
55 See LAW AND ORDERS by CARLETON KEMP ALLEN, 4th Edn, at p 4.
56 See CONSTITUTIONAL INTERPRETATION by CRAIG R. DUCAT, 8th Edn, p 38.
57 A principle established in England by the Act of Settlement, 1701, and guaranteed in the U.S.A. by Article III, section I of the
Constitution.
58 Cf. King v Speyer, (1910) 1 KB 596 ; Eastern Trust Co v McKenzie, (1915) AC 750 .
59 Cf. Kawasaki v Bantham, (1939) 2 KB 544 (552).

60 M v Home Office, (1994) 1 AC 377 .
61 M v Home Office, (1992) QB 270 .
62 Mohd. Aslam v UOI, AIR 1995 SC 548 [LNIND 1994 SC 991] : (1994) 6 SCC 442 [LNIND 1994 SC 991] .
63 Godavarman Thirumulpad v Ashok Khot, (2006) 5 SCC 1 [LNIND 2006 SC 379] .
64 Sanjiv Datta, Dy. Secretary, Ministry of Information and Broadcasting, Re., (1995) 3 SCC 619 : JT (1995) 3 SC 538 .
67 Re, C. (an Infant), (1939) Ch 363 .
68 Wilson’s case, (1943), referred to in ALLEN, LAW AND ORDERS, 2nd Edn, p 423.
69 UOI v Sankalchand Himatlal Sheth, AIR 1977 SC 2328 [LNIND 1977 SC 268] : (1978) 1 SCR 423 [LNIND 1977 SC 268] :
(1977) 4 SCC 193 [LNIND 1977 SC 268] (para. 51); Gupta v President of India, AIR 1982 SC 149 : (1982) 2 SCR 365 : 1981
Supp SCC 87 (para. 26); vide C7. vol C, pp 179 ff.
70 Gupta v President of India, AIR 1982 SC 149 : (1982) 2 SCR 365 : 1981 Supp SCC 87 (para. 703, DESAI, J.).
71 Ibid., (paras. 1016, 1025, VENKATARAMIAH, J.).

73 UOI v Sankalchand Himatlal Sheth, AIR 1977 SC 2328 [LNIND 1977 SC 268] : (1978) 1 SCR 423 [LNIND 1977 SC 268] : (1977)
4 SCC 193 [LNIND 1977 SC 268] (paras. 32, CHANDRACHUD, J.; 50, BHAGWATI, J.).
74 State of UP v Satendra Singh Tomar, (2001) Criminal Law Journal 2509 : (2001) Allahabad Law Journal 2096.
75 Abdul Khan v A.D. Savant J.M.F.C. Nagpur, (1994) Cr LJ 2836 (Bombay) referred in AIR 2001 Journal.
[LNIND 1978 SC 54] .
77 See Chetak Construction Ltd v Om Prakash, AIR 1998 SC 1855 [LNIND 1998 SC 457] : (1998) 4 SCC 577 [LNIND 1998 SC
457] : (1998) 3 JT 269 .
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Page 179 of 195
78 See Indra Sawhney v UOI, AIR 1993 SC 477 (727) : 1992 (Supp-3) SCC 212 : (1992) 6 JT 273 .
79 Ronald Dworking, Taking Rights Seriously, pp 137-149.
80 Aharm Barak, Judicial Discretion, pp 147-151.
(1977) 4 SCC 193 [LNIND 1977 SC 268] (paras. 32, CHANDRACHUD, J.; 50, BHAGWATI, J.).
82 Author’s TAGORE LAW LECTURES ON LIMITED GOVERNMENT AND JUDICIAL RE- VIEW (1972), p 28.
83 Author’s T.L.L. ON LIMITED GOVERNMENT AND JUDICIAL REVIEW (1972), p 28.
84 Gupta v President of India, AIR 1982 SC 149 : (1982) 2 SCR 365 : 1981 Supp SCC 87 (paras. 1016, 1025, VENKATARAMIAH,
J).
85 Vide PALKHIVALA, OUR CONSTITUTION DEFACED AND DEFILED, pp 99-103.
86 Gupta v President of India, AIR 1982 SC 149 : (1982) 2 SCR 365 : 1981 Supp SCC 87 (paras. 704-05).
87 Cf. OGG and ROY, ESSENTIALS OF AMERICAN GOVERNMENT (1965). pp 286-87.
89 CHASE, FEDERAL JUDGES, cited in EDWARDS, AMERICAN POLITICAL EXPERIENCE (1978), p 297; BURNS,
PELTASON and CRONIN, GOVERNMENT BY THE PEOPLE (1981), p 397.
90 JACKSON, MACHINERY OF JUSTICE IN ENGLAND, quoted at para. 706 in Gupta’s case [ AIR 1982 SC 149 : (1982) 2 SCR
365 : 1981 Supp SCC 87].
91 GRIFFITH, POLITICS OF THE JUDICIARY, pp 17-18.
92 See CONSTITUTIONAL AND ADMINISTRATIVE LAW by A.W. BRADLEY & K.D. EWING, 13th Edn (2003) at p 368.
93 Subhash Sharma v UOI, AIR 1991 SC 631 [LNIND 1990 SC 630]: 1991 (Supp-1) SCC 574.
94 Supreme Court Advocates-on-Record Association v UOI, AIR 1994 SC 268 [LNIND 1993 SC 1231]: (1993) 4 SCC 441.
95 Special Reference No. 1 of 1998, (1998) 7 SCC 739 [LNIND 1998 SC 1278] : AIR 1999 SC 1 [LNIND 1998 SC 1278].
4 SCC 193 [LNIND 1977 SC 268] (paras. 15-16, 22, CHANDRACHUD, J.; para. 48, BHAGWATI, J.).
1 Gupta v President of India, AIR 1982 SC 149 : (1982) 2 SCR 365 : 1981 Supp SCC 87 (paras. 25, BHAGWATI, J.; 609.
TULZAPURKAR, J.; 141, GUPTA, J.; 430, FAZAL ALI, J.; 973, VENKA- TARAMIAH. J).
2 Supreme Court Advocates-on-Record Association v UOI, AIR 1994 SC 268 [LNIND 1993 SC 1231] : (1993) 4 SCC 441 .
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Page 180 of 195
3 Special Reference No. 1 of 1998, (1998) 7 SCC 739 [LNIND 1998 SC 1278] : AIR 1999 SC 1 [LNIND 1998 SC 1278] .
4 Supreme Court Advocates-on-Record Association v UOI, AIR 1994 SC 268 [LNIND 1993 SC 1231] : (1993) 4 SCC 441 ;
Dalpathray Bhandari v UOI, 1995 (Supp-1) SCC 682; Special Reference No. 1 of 1998, (1998) 7 SCC 739 [LNIND 1998 SC 1278]
: AIR 1999 SC 1 [LNIND 1998 SC 1278] ; K. Ashok Reddy v Government of India, AIR 1994 SC 1207 [LNIND 1994 SC 160] :
(1994) 2 SCC 303 [LNIND 1994 SC 160] .
5 UOI v Sankalchand Himatlal Seth, AIR 1977 SC 2328 [LNIND 1977 SC 268] : (1977) 4 SCC 193 : (1978) 1 SCR 423 [LNIND
1977 SC 268] .
6 UOI v Sankalchand Himatlal Seth – supra; See also S.P. Gupta v UOI, AIR 1982 SC 149 : 1981 (Supp) SCC 87.
7 Supreme Court Advocates on Record Assn. v UOI, AIR 1994 SC 268 [LNIND 1993 SC 1231] : (1993) 4 SCC 441 : 1993 (Supp-2)
SCR 659.
8 See Presidential Reference, Re., AIR 1999 SC 1 [LNIND 1998 SC 1278] : (1998) Supp-2 SCR 400.
10 Report of the Joint Parliamentary Committee (J.P.C.) on Indian Reforms, vol 1, Pt 1.
11 Burton, Unsung Services of the Supreme Court, (1955) 24 Ford L Rev 169 (170).
12 Cf. Baxter v Commissioner of Taxation, (1907) 4 CLR 1087 (1110).
13 Hammer v Dagenhart, (1918) 247 US 251.
14 See OLIVER WENDELL HOLMES JR., “LAW AND THE COURT” in his collected Legal Papers (1921) pp 295-96.
15 See Hayburn’s case (1792) 2 US 408 : 1 LEd 436.
16 Cf. Wigglesworth v R., (1989) LRC (Const) 591 (609) Can (SC); Jones v R., (1988) LRC (Const) 289 (313) Can (SC).
17 This view of the Author, expressed at p 68 of vol III of the previous Edition, has been affirmed by State of Bihar v UOI, AIR 1970
SC 1446 [LNIND 1969 SC 353] (1449-52) : (1970) 2 SCR 522 [LNIND 1969 SC 353] : (1970) 1 SCC 67 [LNIND 1969 SC 353] .
18 These overwhelming powers, together with the financial resources of the Union, thus, account for the fact that until 1961 (see State
of WB v UOI, AIR 1963 SC 1241 [LNIND 1962 SC 438] : (1964) 1 SCR 371) [LNIND 1962 SC 438] , there was not a single case
between the Union and a State under Article 131, and whatever federal question has come up before the Supreme Court has been on
appeal in cases brought by individuals.
19 Address by Sir A.K. Aiyar, AIR 1949 Jour 35 .
20 Address by Sir A.K. Aiyar, AIR 1949 Jour 35.
21 State of WB v UOI, AIR 1963 SC 1241 [LNIND 1962 SC 438] : (1964) 1 SCR 371 [LNIND 1962 SC 438] .
22 State of WB v UOI, AIR 1963 SC 1241 [LNIND 1962 SC 438]: (1964) 1 SCR 371 [LNIND 1962 SC 438].
23 M.P. Jain, Indian Constitutional Law, Enlarged 6th Edn vol I, p 927.
25 E.g. in a case like Gujarat University v Krishna, AIR 1963 SC 703 [LNIND 1962 SC 510] (716-17) : 1963 (Supp-1) SCR 112;
State of Rajasthan v Chawla, AIR 1959 SC 544 [LNIND 1958 SC 166] ; Tika Ramji v State of UP, (1956) SCR 393 [LNIND 1956
SC 37] (411, 420); For a further critique of State of WB v UOI, AIR 1963 SC 1241 [LNIND 1962 SC 438] : (1964) 1 SCR 371
[LNIND 1962 SC 438] , see Autor’s COMPARATIVE CONSTITUTIONAL LAW (1982), pp 31-32. See also Ganga Ram
Moolchandani v State of Rajasthan, (2001) 6 SCC 89 [LNIND 2001 SC 1353] : AIR 2001 SC 2616 [LNIND 2001 SC 1353] .
26 State of WB v UOI,.
27 CONSTITUTIONAL LAW OF INDIA by H.M. SEERVAI, 4th Edn, vol II at p 283.
28 Raja Ram Pal v Hon’ble Speaker, Lok Sabha, (2007) 3 SCC 184 .
29 Kuldip Nayar v UOI, AIR 2006 SC 3127 [LNIND 2006 SC 635] : (2006) 7 SCC 1 [LNIND 2006 SC 635] .
30 See also State of WB v Kesoram Industries Ltd, AIR 2005 SC 1646 [LNIND 2004 SC 63] : (2004) 10 SCC 201 [LNIND 2004 SC
63] .
Dinesh Mishra
Page 181 of 195
32 OGG and RAY “ESSENTIALS OF AMERICAN GOVERNMENT”, at p 351.

33 Further appeal to the Privy Council has become obsolete [LANE, AUSTRALIAN CONSTITUTIONAL LAW (1987), pp 73-74].
34 See SELECT CONSTITUTION by ANUP CHAND KAPUR and K.K. MISRA, 16th Edn (2006) : “The Government of Canada”,
chapter XIV, “The Federal Judiciary” at p 453.
35 Administration of Justice (Appeals) Act, 1969.
36 See under Article 133, post.
37 Natoo Lal v Durga Prasad, AIR 1954 SC 355 [LNIND 1954 SC 63] : (1955) 1 SCR 51 [LNIND 1954 SC 63] ; Chunnilal Mehta v
Century Spg. & Mfg. Co Ltd, AIR 1962 SC 1314 [LNIND 1962 SC 101] : 1962 (Supp-3) SCR 549; Khas Busara Coal Concern v
Ram Nagina Singh, AIR 1968 Calcutta 391 ; M. Gopinath v SMSLC Co-op. Society, AIR 1981 AP 182 ; Durga Associates, Raipur
v State of UP, AIR 1982 Allahabad 490 .
38 State Bank of India v N. Sundara Money, AIR 1976 SC 1111 [LNIND 1976 SC 13] : (1976) 1 SCC 822 [LNIND 1976 SC 13] .
39 State of Kerala v Attessee (Agro Industries Trading Corp), AIR 1989 SC 223 : 1989 (Supp-1) SCC 733.
40 Criminal Appeal Act, 1968.
41 See C6 vol A, pp 349-521.
42 See Article VI(2) of the U.S.A.; Article 98 of the Japanese Constitutions (see post); covering clause V of the Australian
Constitution Act.
43 HAMILTON, FEDERALIST, p 39.

45 Marbury v Madison, (1803) 1 Cr 137.

46 COOLEY, CONSTITUTIONAL LIMITATIONS, 7th Edn, p 228; Carter v Carter Coal Co, (1936) 298 US 238.
47 supra.
48 WILLOUGHBY, CONSTITUTIONAL LAW OF THE U.S., vol I, p 1.
49 WILLIS, CONSTITUTIONAL LAW, pp 72-73.
50 During a period of 167 years (1790-1970), the Supreme Court has invalidated some 92 Acts of Congress [a list of these Acts is
given in Corwin Constitution of the United States, 1972, pp 1597-1619]. The power of judicial review has, however, been more
frequently used in annulling State laws.
51 CARDOZO, NATURE OF JUDICIAL PROCESS, quoted in BROGAN, GOVT. OF THE PEOPLE, p XXVII.

53 Federalist No. 78, p 504.
54 Cf. JACKSON, JUDICIAL SUPREMACY, 1941.
55 See ABRAHAM HENRY, J. ON JUDICIAL PROCESS at p 251.
56 Marbury v Madison, 5 US (1 Cranch) 137 : 2 L Ed 60 (1803)
57 See Anup Chand Kapur and K.K. Misra, Select Constitution, Sixteenth revised Edn, pp 318-321.c
58 “A” Case No. 2868 of 1952 [For other cases dealing with the constitutionality of laws, see Case no. (A) 292/1950; (A) 2105/1949
(A); 1126/53], and IPOH and BEER, CONSTITUTIONAL CASE LAW OF JAPAN (1961-70); MURPHY OF TANENHAUS,
COMPARATIVE CONSTITUTION- AL LAW (1977), p 44.
59 See SELECT CONSTITUTION by ANUP CHAND KAPUR and K.K. MISRA, 16th Edn, (2006) : “The Government of Japan” at
p 579.
60 National Union v Sullivan, (1974) IR 77 (99-100).
Dinesh Mishra
Page 182 of 195
61 Baxter v Commissioner of Taxation, (1907) 4 CLR 1087 .

62 Australian Apple Board v Tonking, (1942) 66 CLR 104 .
63 DIECY, LAW OF THE CONSTITUTION, 9th Edn, p 39; KEITH, CONSTITUTIONAL LAW, 7th Edn, p 16.
64 MAY, PARLIAMENTARY PRACTICE, 19th Edn, p 54.

66 See Liyanage v R, (1967) AC 259 ; Hind v R, (1977) AC 195 .
67 Harris v Minister of Interior, (1952) SA 428.
68 Gopalan v State of Madras, (1950) SCR 88 [LNIND 1950 SC 22] (100) : AIR 1950 SC 27 [LNIND 1950 SC 22] ; Ref. No. 1 of
1964, AIR 1965 SC 745 (paras. 59 et seq.).
69 E.M.S. Nambudiripad v T.N. Nambiar, AIR 1970 SC 2015 [LNIND 1970 SC 286] : (1970) 2 SCC 325 [LNIND 1970 SC 286] :
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
70 Minerva Mills Ltd v UOI, AIR 1980 SC 1789 [LNIND 1980 SC 257] : (1980) 3 SCC 625 [LNIND 1980 SC 257] : (1981) 1 SCR
206 [LNIND 1986 SC 307] .
71 See Clements on Canadian Constitution, p 353; see also Queen v Bursh, 3 AC 889.
72 Citizen v Parsons, 51 LJ PC 11.
206 [LNIND 1986 SC 307] .
74 Dennis v US, 95 L Ed 1137.
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
76 Romesh Thappar v State of Madras, AIR 1950 SC 124 [LNIND 1950 SC 27] : (1950) SCR 594 [LNIND 1950 SC 27] .
77 See also Brij Bushan v State of Delhi, AIR 1950 SC 129 [LNIND 1950 SC 26] : (1950) 1 SCR 605 [LNIND 1950 SC 5] ; Indian
Express v UOI, AIR 1986 SC 515 [LNIND 1984 SC 337] : (1985) 1 SCC 641 [LNIND 1984 SC 337] .
78 See Prem Chand Garg v Excise Commissioner, U.P., AIR 1963 SC 996 [LNIND 1962 SC 356] : 1963 (Supp-1) SCR 885;
Rameshwar Prasad v UOI, AIR 2006 SC 980 [LNIND 2006 SC 1219] : (2006) 2 SCC 1 [LNIND 2006 SC 1219] .
79 Kesavananda Bharati v State of Kerala, AIR 1973 SC 1461 [LNIND 1973 SC 154] : (1973) 4 SCC 225 [LNIND 1973 SC 154] .
80 A.K. Kaul v UOI, AIR 1995 SC 1403 [LNIND 1995 SC 533] : (1995) 4 SCC 73 [LNIND 1995 SC 533] .
81 See UOI v Raghubhir Singh (dead) by LRs., AIR 1989 SC 1933 [LNIND 1989 SC 328] : (1989) 2 SCC 754 [LNIND 1989 SC 328]
; Kesavananda Bharati v State of Kerala, AIR 1973 SC 1461 [LNIND 1973 SC 154] : (1973) 4 SCC 225 [LNIND 1973 SC 154] :
1973 (Supp) SCR 1; Indira Nehru Gandhi v Raj Narain, AIR 1975 SC 2299 [LNIND 1975 SC 432] : 1975 (Supp) SCC 1 : (1976) 2
SCR 347 [LNIND 1975 SC 432] .
82 State of Karnataka v Appa Balu Ingale, AIR 1993 SC 1126 : 1993 (1) Andh LT (Cr) 390 .
83 See Common Cause, a Registered Society v UOI, AIR 1999 SC 2979 [LNIND 1999 SC 637] : (1999) 6 SCC 667 [LNIND 1999 SC
637] ; S. Nagaraj v State of Karnataka, 1993 (Supp-4) SCC 595 : JT 1993 (4) SC 27 [LNIND 1993 SC 1065] .
84 See Raja Ram Pal v Hon’ble Speaker, Lok Sabha, (2007) 3 SCC 184 . Read the article “The Suprme Court of India” by VANKET
AYER, published in Judicial Activism in Common Law Supreme Court, edited by BRICE DICKSON, 2007, at pp 121-168.
85 See K.K. Kochunni v State of Madras, AIR 1959 SC 725 [LNIND 1959 SC 27] : 1959 (Supp-2) SCR 316. See also State of
Madras v V.G. Row, AIR 1952 SC 196 [LNIND 1952 SC 23] : 1952 SCR 597 [LNIND 1952 SC 23] ; Bidi Supply Co v UOI, AIR
1956 SC 479 [LNIND 1956 SC 29] : 1956 SCR 267 [LNIND 1956 SC 29] ; Special Reference No. 1 of 1964 (Keshav Singh, Re),
AIR 1965 SC 745 : (1965) 1 SCR 413 ; Minerva Mills Ltd v UOI, AIR 1980 SC 1789 [LNIND 1980 SC 257] : (1980) 3 SCC 625
[LNIND 1980 SC 257] .
87 Cf. Gajapati v State of Orissa, AIR 1953 SC 375 [LNIND 1953 SC 70] (379) : 1954 SCR 1 [LNIND 1953 SC 70] : 1953 SCJ 592
[LNIND 1953 SC 70] .
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
Dinesh Mishra
Page 183 of 195
206 [LNIND 1986 SC 307] .
90 Author’s SELECT CONSTITUTIONS OF THE WORLD, 3rd Edn, p 72.
91 Cf. State of UP v Srivastava, AIR 1957 SC 912 [LNIND 1957 SC 93] (918) : 1958 SCR 533 [LNIND 1957 SC 93] : (1958) 2 LLJ
273 [LNIND 1957 SC 93] .
92 Kesavananda v State of Kerala, AIR 1973 SC 1461 [LNIND 1973 SC 154] : 1973 Supp SCR 1 : (1973) 4 SCC 225 [LNIND 1973
SC 154] (paras. 950, 1287, 1381, 1586, 1592).
94 Vide C.C.L., pp 257 ff; 185 ff; 190 ff.
95 Gopalan v State of Madras, (1950) SCR 88 [LNIND 1950 SC 22] (100) : AIR 1950 SC 27 [LNIND 1950 SC 22]; Ref. No. 1 of
273 [LNIND 1957 SC 93] .
2 See Deep Chand v State of UP, AIR 1959 SC 648 [LNIND 1959 SC 3] .
3 Kochunni v State of Madras, AIR 1959 SC 725 [LNIND 1959 SC 27] : 1959 (Supp-2) SCR 316.
5 S.P. Sampath Kumar v UOI, AIR 1987 SC 386 [LNIND 1986 SC 500] : (1987) 1 SCC 124 [LNIND 1986 SC 500] .
6 L. Chandrakumar v UOI, AIR 1997 SC 1125 [LNIND 1997 SC 488] : (1997) 3 SCC 261 [LNIND 1997 SC 488] .
7 See also State of WB v Ashish Kumar Ray, AIR 2005 SC 254 [LNIND 2004 SC 1207] : (2005) 10 SCC 110 [LNIND 2004 SC
1207] .
8 See L. Chandra Kumar v UOI – supra; see also State of WB v Ashish Kumar Ray, AIR 2005 SC 254 [LNIND 2004 SC 1207] :
(2005) 10 SCC 110 [LNIND 2004 SC 1207] .
9 See State of HP v Pawan Kumar Rajput, (2006) 9 SCC 161 : 2005 (4) SCC 350 [LNIND 2005 SC 355] .
10 See Ashok Kumar v UOI, AIR 1999 Calcutta 242 ; Commissioner of Entertainment Tax v Mitra Cinema, AIR 2008 Calcutta 247 .
11 UOI v Delhi High Court Bar Assn., AIR 2002 SC 1479 [LNIND 2002 SC 206] : (2002) 4 SCC 274 .
12 State of Bombay v Chamarbaugwala, AIR 1957 SC 699 [LNIND 1957 SC 38] (705) : 1957 SCR 874 [LNIND 1957 SC 37] .
13 Mehtab v State of Madras, AIR 1963 SC 928 [LNIND 1962 SC 162] : 1963 (Supp-2) SCR 435; Automobile Transport v State of
Rajasthan, AIR 1962 SC 1406 [LNIND 1962 SC 152] : (1963) 1 SCR 491 [LNIND 1962 SC 152] ; Ramkrishna v State of Bihar,
AIR 1963 SC 1667 [LNIND 1963 SC 33] : (1964) 1 SCR 897 [LNIND 1963 SC 33] .
14 Basappa v Nagappa, (1955) 1 SCR 250 [LNIND 1954 SC 84] : AIR 1954 SC 440 [LNIND 1954 SC 84] .
15 Addressed by Alladi Krishnaswami Aiyar, AIR 1949 Jour 35. See also L. Chandra Kumar v UOI, AIR 1997 SC 1125 [LNIND
1997 SC 488]: (1997) 3 SCC 261 [LNIND 1997 SC 488].
16 In the matter of Cauvery Water Disputes Tribunal, AIR 1992 SC 522 [LNIND 1991 SC 1022] (553 and 554) : 1993 (Supp-1) SCC
96 : (1991) 4 JT 361 .
17 The number was increased from 7 to 13 by the Supreme Court (Number of Judges) Acts, 1956, 1960, to “seventeen” by the
Supreme Court (Number of Judges) Amendment Act, 1977, and to 25 by the Supreme Court (Number of Judges), Amendment Act,
1986.
* Subs. by the Constitution (Ninety-ninth Amendment) Act, 2014, section 2(a), for “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” (w.e.f. 13 April 2015,
vide S.O. 999(E), dated 13 April 2015).
Dinesh Mishra
Page 184 of 195
** First proviso omitted by the Constitution (Ninety-ninth Amendment) Act, 2014, section 2(b) (w.e.f. 13- 4-2015, vide S.O. 999(E),
dated 13 April 2015). First proviso, before omission, stood as under:
“Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be
consulted:”.
† Subs. by the Constitution (Ninety-ninth Amendment) Act, 2014, section 2(c), for “Provided further that” (w.e.f. 13 April 2015,
vide S.O. 999(E), dated 13 April 2015).
18 Clause (2A) was inserted by the Constitution (Fifteenth Amendment) Act, 1963.
19 And thus affected Mr. J.P. Mitter as well, even though he had been appointed and retired before the date of coming into effect of
the Amendment Act: vide J.P. Mitter v Chief Justice, AIR 1965 SC 961 [LNIND 1964 SC 307] : (1965) 2 SCR 53 [LNIND 1964
SC 307] .
20 See Article 247, in this connection.
21 Gopalan, A.K. v State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22]: 1950 SCR 88 [LNIND 1950 SC 22]; Roy, A.K. v UOI,
AIR 1982 SC 710 [LNIND 1981 SC 469]: (1982) 1 SCC 271 [LNIND 1981 SC 469].
22 The number was increased from 7 to 13 by the Supreme Court (Number of Judges) Acts, 1956, 1960, to “seventeen” by the
Supreme Court (Number of Judges) Amendment Act, 1977, and to 25 by the Supreme Court (Number of Judges), Amendment Act,
1986.
23 Gupta v UOI, AIR 1982 SC 192 (para. 27) VENKATARAMIAH J., dissenting (paras. 969, 1251), AIR 1982 SC 149 : (1982) 2
SCR 365
25 Supreme Court Advocates-on-Record Assn. v UOI – supra,.
26 Gupta v UOI, AIR 1982 SC 149 (para. 27) VENKATARAMIAH J., dissenting (paras. 969, 1251).
27 Subhash v UOI, AIR 1991 SC 631 [LNIND 1990 SC 630]: 1990 (Supp-2) SCR 433 : 1991 (Supp-1) SCC 574 (para. 19).
28 HC 52- II (1995-96) p 130; see also CONSTITUTIONAL AND ADMINISTRATIVE LAW by A.W. BRADLEY and K.D.
EWING, 13th Edn, 2003, chapter XVIII, “The Courts and the machinery of justice”, pp 369-70.
29 See Arthur v Attorney General, (1999) IRC 631.
30 Starrs v Ruxton, (2000) 63 MLR 429 : 1999 SCCR 1052.
31 See A.W. Bradley and K.D. Ewing, Constitutional and Administrative Law, 13th Edn, pp 370-371.
Dinesh Mishra
Page 185 of 195
32 Waterside Fed. v Alexander, (1918) 25 CLR 434.
33 RAPPARD, GOVERNMENT OF SWITZERLAND, p 91.
34 See SELECT CONSTITUTION by ANUP CHAND KAPUR and K.K. MISRA, 16th Edn, 2006 : “The Government of
Switzerland”, p 507.
35 See Author’s SELECT CONSTITUTIONS OF THE WORLD.
36 HOOD PHILLIPS, CONSTITUTIONAL LAW (1978), pp (158, 381).
37 See Constitutional Reform Act, 2005. Also see CONSTITUTIONAL AND ADMINISTRATIVE LAW by JOHN ALDER, 2007
Edn, pp 188-89.
38 See Constitutional reforms Act, 2005 section 14; Courts Act, 2003 section 10.
39 See John Alder, Constitutional and Administrative Law, 6th Edn, pp 188-190.
40 See THE INDIAN CONSTITUTION, CORNERSTONE OF A NATION by GRANVILLE AUS- TIN, 9th Impression (2005), p
176.
41 Ibid., at p 177.
42 This view of the Author now finds support from the Supreme Court [UOI v Sankalchand Himatlal Sheth, AIR 1977 SC 2328
[LNIND 1977 SC 268]: (1978) 1 SCR 423 [LNIND 1977 SC 268] : (1977) 4 SCC 193 [LNIND 1977 SC 268] (paras. 41, 58,
BHAGWATI J.); Gupta v President of India, AIR 1982 SC 149 : (1982) 2 SCR 365 : 1981 Supp SCC 87 (paras. 58, BHAGWATI
J., 1003, 1015, VENKATARAMIAH, J.; 321-22, FAZAL ALI, J.; 703, 706, DESAI. J.; 876, PATHAK, J.).
44 Cf. Gupta v President of India, AIR 1982 SC 149 : (1982) 2 SCR 365 : 1981 Supp SCC 87 (paras. 665; 1128-29). See also
Supreme Court Advocates-on-Record Association v UOI, AIR 1994 SC 268 [LNIND 1993 SC 1231]: (1993) 4 SCC 441.
45 Supreme Court Advocates on Record Assn. v UOI, AIR 1994 SC 268 [LNIND 1993 SC 1231]: (1993) 4 SCC 441 : 1993 (Supp-2)
SCR 659.
46 S.P. Gupta v UOI, AIR 1982 SC 149 : 1981 (Supp) SCC 87.
47 Lakhanpal v A.N. Roy, AIR 1975 Del 66 [LNIND 1974 DEL 37](72) (FB). [Case of quo warranto against the Chief Justice of
India.]
48 Cf. State v D.V.C., AIR 1974 Pat 354 (para. 10).
Dinesh Mishra
Page 186 of 195
49 Subhash Sharma v UOI, AIR 1991 SC 631 [LNIND 1990 SC 630]: 1991 (Supp-1) SCC 574 : JT (1990) 4 SC 245 [LNIND 1990
SC 630].
SCR 659.
51 Re. Special Reference, AIR 1999 SC 1 [LNIND 1998 SC 1278]: (1998) 7 SCC 739 [LNIND 1998 SC 1278].
52 Gupta v President of India, AIR 1982 SC 149 : (1982) 2 SCR 365 : 1981 Supp SCC 87 (paras. 709, 713, DESAI. J.; 1003,
VENKATARAMIAH, J.).
53 See Supreme Court Advocates-on-Record Association v UOI, AIR 1994 SC 268 [LNIND 1993 SC 1231] : (1993) 4 SCC 441 .
55 THE INDIAN CONSTITUTION, CORNERSTONE OF A NATION, chapter VII, “The Judiciary and the Social Revolution”, p
129.
56 4th Edn, vol III, pp 2927-70.
VENKATARAMIAH, J.)
VENKATARAMIAH, J.). Usually the office of the Chief Justice of India is filled up by promotion of a puisne Judge of the
Supreme Court and the rule of seniority is observed. But there are instances where the rule of seniority has been departed from [see
the case of A.K. Ray, C.J. at fn. 3, above.].
60 Also see the article “Merit in the appointment of Judges” by PROF. M.P. SINGH, University of Delhi, (1999) 8 SCC (J) 1.
61 “CONSTITUTIONAL LAW OF INDIA by H.M. SEERVAI, 4th Edn, vol III, p 2619.
62 Gupta v President of India, AIR 1982 SC 149 : (1982) 2 SCR 365 : 1981 Supp SCC 87 (paras. 881, PATHAK, J.; 997, 1001,
1013-15, 1026, VENKATARAMIAH, J.). Also see Supreme Court Advo- cateson-Record Association v UOI, AIR 1994 SC 268
[LNIND 1993 SC 1231]: (1993) 4 SCC 441; Gauhati High Court v Khuladhar Phukhan, AIR 2002 SC 1589 [LNIND 2002 SC
246]: (2002) 4 SCC 524 [LNIND 2002 SC 246]; High Court of Judicature of Rajasthan v P.P. Singh, AIR 2003 SC 1459 [LNIND
2003 SC 86]: (2003) 4 SCC 239 [LNIND 2003 SC 100]; L and T McNeil Ltd v Govt. of Tamil Nadu, AIR 2001 SC 844 [LNIND
2001 SC 256]: (2001) 3 SCC 170 [LNIND 2001 SC 256].
63 See Supreme Court Advocates-on-Record Association v UOI, AIR 1994 SC 268 [LNIND 1993 SC 1231]: (1993) 4 SCC 441.
65 See Subhash Sharma v UOI, AIR 1991 SC 631 [LNIND 1990 SC 630]: 1991 (Supp-1) SCC 574 : JT (1990) 4 SC 245 [LNIND
1990 SC 630].
Dinesh Mishra
Page 187 of 195
66 See Fletcher v Minister of Town Planning, (1947) 2 All ER 496; Pushpam, R v State of Madras, AIR 1953 Madras 392 [LNIND
1952 MAD 243]; Chandramouleshar Prasad v Patna High Court, AIR 1970 SC 370 [LNIND 1969 SC 377]: 1970 SCR (2) 666;
Shamsher Singh v State of Punjab, AIR 1974 SC 2192 [LNIND 1974 SC 246]: (1974) 2 SCC 831 [LNIND 1974 SC 246]; UOI v
Sankalchand Himatlal Seth, AIR 1977 SC 2328 [LNIND 1977 SC 268]: (1977) 4 SCC 193 [LNIND 1977 SC 268] : (1978) 1 SCR
423 [LNIND 1977 SC 268]; S.P. Gupta v UOI, AIR 1982 SC 149 : 1981 (Supp) SCC 87; Subhash Sharma v UOI, AIR 1991 SC
631 [LNIND 1990 SC 630]: 1991 (Supp-1) SCC 574 : JT (1990) 4 SC 245 [LNIND 1990 SC 630]; Chandra Mohan v State of UP,
AIR 1966 SC 1990.
(1977) 4 SCC 193 [LNIND 1977 SC 268] (paras. 37-40, 626).
68 See Supreme Court Advocates-on-Record Association v UOI, AIR 1994 SC 268 [LNIND 1993 SC 1231] : (1993) 4 SCC 441 .
1977 SC 268] (paras. 37-40, 626).
70 Re. Presidential Reference, AIR 1999 SC 1 [LNIND 1998 SC 1278]: (1998) Supp-2 SCR 400.
71 Gupta v UOI, AIR 1982 SC 149 : 1981 Supp (1) SCC 87 : 1982 2 SCR 365.
72 Re. Presidential Reference AIR 1999 SC 1 [LNIND 1998 SC 1278].
73 See UOI v Sankalchand Himatlal Seth, AIR 1977 SC 2328 [LNIND 1977 SC 268]: (1977) 4 SCC 193 : (1978) 1 SCR 423 [LNIND
1977 SC 268].
74 UOI v Sankalchand Himatlal Seth, AIR 1977 SC 2328 [LNIND 1977 SC 268]: (1977) 4 SCC 193 : (1978) 1 SCR 423 [LNIND
1977 SC 268].
75 State of UP v Srivastava, AIR 1957 SC 912 [LNIND 1957 SC 93]: 1958 SCR 533 [LNIND 1957 SC 93] : (1958) 2 LLJ 273
[LNIND 1957 SC 93]; State of Bombay v Korgaonkar, (1960) SC [CA 389/581]; Ram Gopal v State of MP, AIR 1970 SC 158
[LNIND 1969 SC 194](160) : (1970) 1 SCR 472 [LNIND 1969 SC 194] : (1969) 2 SCC 240 [LNIND 1969 SC 194]; D’Silva v UOI,
AIR 1962 SC 1130 [LNIND 1961 SC 380](1133-34) : 1962 (Supp-1) SCR 968.
76 UOI v Sankalchand Himatlal Sheth, AIR 1977 SC 2328 [LNIND 1977 SC 268]: (1978) 1 SCR 423 [LNIND 1977 SC 268] : (1977)
4 SCC 193 [LNIND 1977 SC 268] (paras. 35-36, CHANDRACHUD, J.; 63, BHAGWATI, J; 73, IYER and FAZAL ALI, JJ.; 124,
UNTWALIA, J.).
77 Gupta v President of India, AIR 1982 SC 149 : (1982) 2 SCR 365 : 1981 Supp SCC 87 (paras. 881, PATHAK, J.; 997, 1001,
1013-15, 1026, VENKATARAMIAH, J.).
78 Ibid., [para. 563(3), FAZAL ALI J.; 1000, VENKATARAMIAH, J.).
79 Ibid., (paras. 881, PATHAK, J.; 997, 1001, 1013-15, 1026, VENKATARAMIAH, J.).
80 Advocates allowed to initiate public interest litigation, in Subhash v UOI, AIR 1991 SC 631 [LNIND 1990 SC 630]: 1990 (Supp-
2) SCR 433 : 1991 (Supp-1) SCC 574 (para. 50).
81 Supreme Court Advocates-on-Record Association v UOI, AIR 1994 SC 268 [LNIND 1993 SC 1231]: (1993) 4 SCC 441 : 1993
(Supp-2) SCR 659; Special Reference No. 1 of 1998, AIR 1999 SC 1 [LNIND 1998 SC 1278]: (1998) 7 SCC 739 [LNIND 1998 SC
1278].
Dinesh Mishra
Page 188 of 195
4 SCC 193 [LNIND 1977 SC 268] [paras. 15, 41, CHANDRACHUD, J.; 58, BHAGWATI, J.; 1015, VENKATARAMIAH, J.].
83 Ibid., (paras. 626, TULZAPURKAR, J.; 880, PATHAK, J.).
4 SCC 193 [LNIND 1977 SC 268] (paras. 41, 58, 73, Iyer & FAZAL ALI JJ.; 626, Tulzaputrkar, J.); Shamsher Singh v State of
Punjab, AIR 1974 SC 2192 [LNIND 1974 SC 246](2228) : (1974) 2 SCC 831 [LNIND 1974 SC 246] : (1975) 1 SCR 814 [LNIND
1974 SC 246].
85 Shamsher Singh v State of Punjab, AIR 1974 SC 2192 [LNIND 1974 SC 246](2228) : (1974) 2 SCC 831 : (1975) 1 SCR 814
[LNIND 1974 SC 246].
86 Ibid., (paras. 626, TULZAPURKAR, J.; 880, PATHAK, J.); UOI v Sankalchand Himat- lal Sheth, AIR 1977 SC 2328 [LNIND
1977 SC 268]: (1978) 1 SCR 423 : (1977) 4 SCC 193 [LNIND 1977 SC 268] (paras. 41, 58, 73, IYER and FAZAL ALI JJ.; 626,
TULZAPURKAR, J.); Shamsher Singh v State of Punjab, AIR 1974 SC 2192 [LNIND 1974 SC 246](2228) : (1974) 2 SCC 831 :
(1975) 1 SCR 814 [LNIND 1974 SC 246].
87 Subhash v UOI, AIR 1991 SC 631 [LNIND 1990 SC 630]: 1990 (Supp-2) SCR 433 : 1991 (Supp-1) SCC 574 (paras. 30, 49)—
three Judges.
88 Gupta v President of India, AIR 1982 SC 149 : (1982) 2 SCR 365 : 1981 Supp SCC 87 [para. 563(3), FAZAL ALI J.; 1000,
VENKATARAMIAH, J.).
89 Supreme Court Advocates-on-Record Association v UOI, AIR 1994 SC 268 [LNIND 1993 SC 1231]: (1993) 4 SCC 441 : 1993
(Supp-2) SCR 659.
90 Re. Presidential Reference, AIR 1999 SC 1 [LNIND 1998 SC 1278]: RLW 1999 (1) SC 168 : 1998 (5) Scale 629 [LNIND 1998 SC
1278].
91 N.Kannadasan v Ajay Khose, (2009) 7 SCC 1 [LNIND 2009 SC 1178] (51) : (2009) 8 Scale 351 [LNIND 2009 SC 1178].
SCR 659.
SCR 659.
95 Re. Special Reference, AIR 1999 SC 1 [LNIND 1998 SC 1278]: (1998) 7 SCC 739 [LNIND 1998 SC 1278].
96 See M.P. Jain, Indian Constitutional Law, updated 6th Edn.
Dinesh Mishra
Page 189 of 195
97 See also Special Reference No. 1 of 1998, AIR 1999 SC 1 [LNIND 1998 SC 1278]: (1998) 7 SCC 739 [LNIND 1998 SC 1278].
99 See Special Reference No.1 of 1998, AIR 1999 SC 1 [LNIND 1998 SC 1278]: (1998) 7 SCC 739 [LNIND 1998 SC 1278].
1 See State of Gujarat v R.A. Mehta, AIR 2013 SC 693 [LNIND 2013 SC 1]: (2013) 3 SCC 1 [LNIND 2013 SC 1], followed in
Chandrasek- hariah v Janakere C Krishna, (2013) 5 SCC 117; see also N. Kannadasan v Ajay Khosh, (2009) 7 SCC 1 [LNIND
2009 SC 1178]; Indian Administrative Service (SCS) Assn. v UOI, 1993 Supp (1) SCC 730; State of Gujarat v Gujarat Revenue
Tribunal Bar Assn., (2012) 10 SCC 353 [LNIND 2012 SC 654] : AIR 2013 SC 107 [LNIND 2012 SC 654]; Centre for PIL v UOI,
(2012) 3 SCC 1 [LNIND 2012 SC 95] : (2012) 2 Scale 180 [LNIND 2012 SC 1367]; UOI v Sankalchand Himatlal Seth, AIR 1977
SC 2328 [LNIND 1977 SC 268]: (1977) 4 SCC 193 [LNIND 1977 SC 268] : (1978) 1 SCR 423 [LNIND 1977 SC 268]; State of
Kerala v A. Lakshmi Kutty, (1986) 4 SCC 632 [LNIND 1986 SC 428] : 1987 AIR 331 : 1987 SCR (1) 136; High Court of
Judicature of Rajasthan v P.P. Singh, (2003) 4 SCC 239 [LNIND 2003 SC 100]; UOI v Kali Das Batish, (2006) 1 SCC 779 [LNIND
2006 SC 17]; Andhra Bank v Andhra Bank Officers Assn., (2008) 7 SCC 203 [LNIND 2008 SC 1101]; UOI v Madras Bar Assn.,
(2010) 11 SCC 1 [LNIND 2010 SC 495]; Chandramoulishwar Prasad v Patna High Court, (1969) 3 SCC 145 : 1970 AIR 370 :
1970 SCR (2) 666; Ashok Tanwar v State of HP, (2003) 2 SCC 104 : 2004 (6) Suppl. SCR 1065; K.P. Mohapatra v Sri Ram
Chandra Nayak, (2002) 8 SCC 1 [LNIND 2002 SC 644] : 2002 (3) Suppl. SCR 166.
3 Re. Presidential Reference, AIR 1999 SC 1 [LNIND 1998 SC 1278].
4 Gupta v President of India, AIR 1982 SC 149 : (1982) 2 SCR 365 : 1981 Supp SCC 87 (para. 60, BHAGWATI, J.; 929, PATHAK,
J.). See also Jain R.K. v UOI, AIR 1993 SC 1769 [LNIND 1993 SC 466]: JT (1993) 3 SC 297 [LNIND 1993 SC 466]; Doypack
Systems Ltd v UOI, AIR 1988 SC 782 [LNIND 1988 SC 589]: (1988) 2 SCC 299 [LNIND 1988 SC 589].
5 State of Rajasthan v UOI, AIR 1977 SC 1361 [LNIND 1977 SC 214]: (1978) 1 SCR 1 [LNIND 1977 SC 214] : (1977) 3 SCC 592
[LNIND 1977 SC 214].
6 Gupta v President of India, AIR 1982 SC 149 : (1982) 2 SCR 365 : 1981 Supp SCC 87 (para. 60, BHAGWATI, J.; 929,
PATHAK, J.). See also Jain R.K. v UOI, AIR 1993 SC 1769 [LNIND 1993 SC 466] : JT (1993) 3 SC 297 [LNIND 1993 SC 466] ;
Doypack Systems Ltd v UOI, AIR 1988 SC 782 [LNIND 1988 SC 589] : (1988) 2 SCC 299 [LNIND 1988 SC 589] .
4 SCC 193 [LNIND 1977 SC 268].
8 Cf. A.P.L.A. v Chief Justice, AIR 1990 Ker 241 [LNIND 1989 KER 450](para. 8); Deen Dayal v UOI, AIR 1991 AP 307 [LNIND
1991 AP 147](para. 12).
9 Rajendran v UOI, AIR 1968 SC 507 [LNIND 1967 SC 289](513) : (1968) 1 SCR 721 [LNIND 1967 SC 289] : (1968) 2 LLJ 407
[LNIND 1967 SC 290]; Bala- ji v State of Mysore, AIR 1963 SC 649 [LNIND 1962 SC 320](664) : 1963 (Supp-1) SCR 439.
10 (1999) 8 SCC (J) 1.
SCR 659.
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12 See Subhash Sharma v UOI, AIR 1991 SC 631 [LNIND 1990 SC 630]: 1991 (Supp-1) SCC 574 : JT (1990) 4 SC 245 [LNIND
1990 SC 630].
4 SCC 193 [LNIND 1977 SC 268].
14 UOI v G.C. Misra, AIR 1978 SC 694 [LNIND 1978 SC 54]: (1978) 2 SCC 301 [LNIND 1978 SC 54].
15 Jyoti Prakash v Chief Justice, AIR 1965 SC 961 [LNIND 1964 SC 307] : (1965) 2 SCR 53 [LNIND 1964 SC 307] .
16 UOI v J.P. Mitter, AIR 1971 SC 1093 [LNIND 1971 SC 54] : (1971) 1 SCC 396 [LNIND 1971 SC 54] ; Gupta S.P. v UOI, AIR
1982 SC 149 : 1981 Supp. SCC 87 .
17 KOTARO TANAKA, DEMOCRATIZATION OF JAPANESE ADMINISTRATION OF JUS- TICE, March, 1954.
18 JUSTICE FRANKFURTER, (1957) 22 Vital Speeches, 236.
19 Without meaning disrespect to anybody, it may be stated, broadly, that a busy practitioner is more concerned with cases, while an
academician has to build on basic principles and has more freedom to arrive at conclusions where there are no precedents or to
differ from precedents of the highest authority where they are out of tune with fundamental principles. For the highest tribunal of
the land, it will be agreed, such freedom of approach is essential.
Paradoxically, however, Judges who never did any constitutional case are sometimes assigned constitutional cases while sitting in
the Supreme Court. As a reaction to this, the Law Commission, presided over by a retired Supreme Court Judge, recommended that
a separate constitutional Court should be set up.
SCR 659.
21 See M.P. Jain, Indian Constitutional Law, updated 6th Edn vol I, pp 272-273.
22 Deen Dayal v UOI, AIR 1991 AP 307 [LNIND 1991 AP 147](paras. 7-8).
23 Corresponding words are used also in Article 217(2)(a)(b).
24 Cf. Mubarak v Banerji, AIR 1958 All 323 [LNIND 1957 ALL 245](324); A.K.P.A.L.A. v Chief Justice, AIR 1990 Ker 241
[LNIND 1989 KER 450](para. 14).
25 Chandra v Chaturbhuj, AIR 1970 SC 1061 [LNIND 1969 SC 496]: (1970) 3 SCR 354 [LNIND 1969 SC 496] : (1970) 1 SCC 182
[LNIND 1969 SC 496].
26 This is an obvious lacuna in Article 124(3)(b), the words “of the Supreme Court; or should be added at the end of the sub-clause.
27 CAD VIII 254.
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28 See MCWHINNEY ON JUDICIAL REVIEW (1969), M.P. JAIN ON INDIAN CONSTITUTION- AL LAW, 5th Edn (2003), vol I
at p 232.
30 Aswini Kumar Ghose v Arbinda Bose, AIR 1953 SC 75 : (1953) SCR 215.
31 116 Cong. Rec. 3113-14 (daily ed. 15 April 1970, See CONSTITUTIONAL LAW by STONE, SEIDMAN, SUNSTEIN,
TUSHNET AND KARLAN, 5th Edn (2005) at p 82.
32 MASSEY ON AMERICAN CONSTITUTIONAL LAW, 2nd Edn (2005) at p 56.
33 See A TREATISE ON THE CONSTITUTIONAL LIMITATION, by T.M. COOLEY, Indian Re- print 2005 at p 160.
34 See AMERICAN CONSTITUTIONAL LAW by MASSEY, 2nd Edn, 2005, p 57.
35 SCHWARTZ, CONSTITUTION OF THE UNITED STATES, 1963, vol I, pp 114, 339.
36 MAY, PARLIAMENTARY PRACTICE; HALSBURY (4th Edn) vol 8, para. 1108; Since 1701, there has been only one case of
such removal, that of one Irish Judge named SIR JONAH BAR- RINGTON [DERMING, ROAD TO JUSITICE, 1955, p 13].
37 CONSTITUTIONAL AND ADMINISTRATIVE LAW by HOOD PHILLIPS and JACKSON, 8th Edn (2001) chapter II, “General
Characteristics of British Constitution”, para 2.018, p 25 and at chapter XX, “The Administration of Justice”, para 20.029, p 433.
38 See CONSTITUTIONAL AND ADMINISTRATIVE LAW by A.W. BRADLEY and K.D. EWING, 13th Edn, 2003, chapter
XVII, “The Courts and Machinery of Justice” at p 372.
39 See CONSTITUTIONAL AND ADMINISTRATIVE LAW by JOHN ALDER, 2007 Edn, p 191.
40 KOTARO TANAKA, DEMOCRATIZATION OF JAPANESE ADMINISTRATION OF JUS- TICE, March, 1954.
41 The provision seems to have been engrafted in the light of the system of popular recall which exists in seven of the State
Constitutions in the U.S.A. The use of the recall in those States has been largely confined to executive officials and very seldom in
the case of Judges (cf. ZINK, GOVERNMENT AND POLITICS IN THE UNITED STATES, pp 196, 817).
42 HERTZOG, SOME POLITICAL ASPECTS OF THE JAPANESE CONSTITUTION.
43 These expressions are taken from section 72 of the Australian Constitution.
44 No special majority is required by the “Other Constitutions” noted above.
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45 K. Veeraswami v UOI, (1991) 3 SCC 655 [LNIND 1991 SC 320] : (1991) 3 SCR 189 [LNIND 1991 SC 320] : (1991) 3 JT 198.
46 Ravichandran Iyer, C v Justice A.M. Bhattacharjee, (1995) 5 SCC 457 [LNIND 1995 SC 876] : JT 1995 (6) 339.
47 Re. Mulgaokar, S., AIR 1978 SC 727 [LNIND 1978 SC 402]: (1978) 3 SCC 339 [LNIND 1978 SC 402].
48 Sub-Committee for Judicial Accountability v UOI, AIR 1992 SC 320 [LNIND 1991 SC 968]: (1992) 4 SCC 399.
49 Sarojini Ramaswamy v UOI, AIR 1992 SC 2219 [LNIND 1992 SC 1000]: (1992) 4 SCC 506 [LNIND 1992 SC 1000].
51 See C. Ravichandran Iyer v Justice A.M. Bhattacharjee, (1995) 5 SCC 457 [LNIND 1995 SC 876]. See also Sub Commit- tee on
Judicial Accountability v UOI, (1991) 4 SCC 699 [LNIND 1991 SC 968] : 1991 (Supp-2) SCR 1 (para 112).
52 Daphtary v Gupta, AIR 1971 SC 1132 [LNIND 1971 SC 187]: 1971 Supp SCR 76 : (1971) 1 SCC 626 [LNIND 1971 SC 187]
(para. 68).
53 Krishna Swami v UOI, AIR 1993 SC 1407 [LNIND 1992 SC 1005]: (1992) 4 SCC 605 [LNIND 1992 SC 1005].
54 C. Ravichandran Iyer v Justice A.M. Bhattacharjee, (1995) 5 SCC 457 [LNIND 1995 SC 876].
55 See Re. Dr. Ram Ashray Yadav, Chairman, Bihar Public Service Commission, (2000) 4 SCC 309 [LNIND 2000 SC 539] : AIR
2000 SC 1448 [LNIND 2000 SC 539].
56 Re. Reference under Article 317 of the Constitution of India, (1990) 4 SCC 262 [LNIND 1990 SC 811].
57 See S.A. de Smith, Constitutional and Administrative Law, 1997 Edn, pp 353, 362.
58 See Schwartz, American Constitutional Law, p 135; Article II (4) of the U.S. Constitution.
59 C. Ravichandran Iyer v Justice A.M. Bhattacharjee, (1995) 5 SCC 457 [LNIND 1995 SC 876].
60 C.K. Daphthary v O.P.Gupta, AIR 1971 SC 1132 [LNIND 1971 SC 187]: (1971) 1 SCC 626 [LNIND 1971 SC 187] : (1971) Supp
SCR 76.
SCR 76.
62 See K. Veeraswami v UOI, (1991) 3 SCC 655 [LNIND 1991 SC 320] : (1991) 3 SCR 189 [LNIND 1991 SC 320] : (1991) 3 JT 198.
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63 J.R. Spencer, Jackson’s Machinery of Justice, 8th Edn, pp 369-370.
64 Krishnaswami v UOI, AIR 1993 SC 1407 [LNIND 1992 SC 1005]: (1992) 4 SCC 605 [LNIND 1992 SC 1005].
65 Ramanathaier, Law Lexicon, 1987 Edn, p 821.
66 See C. Ravichandran Iyer v Justice A.M. Bhattacharjee, (1995) 5 SCC 457 [LNIND 1995 SC 876] : 1995 (Supp-3) SCR 319 :
(1995) 6 JT 359 : (1995) 5 Scale 142.
K. Veeraswami v UOI, (1991) 3 SCC 655 [LNIND 1991 SC 320] : (1991) 3 SCR 189 [LNIND 1991 SC 320].
67 In the matter of Reference under Article 317 of the Constitution of India, (2009) 1 SCC 337 [LNIND 2008 SC 2211].
68 See K. Veeraswami v UOI, (1991) 3 SCC 655 [LNIND 1991 SC 320] : (1991) 3 SCR 189 [LNIND 1991 SC 320] : (1991) 3 JT 198.
69 JACKSON’S MACHINERY OF JUSTICE by J.R. SPENCER, 8th Edn, pp 369-70.
70 Avadhesh v State, AIR 1991 All 52 [LNIND 1990 ALL 21](para. 6).
71 Avadhesh v State, AIR 1991 All 52 [LNIND 1990 ALL 21](para. 6). The fault was that of the Union Government who engaged a
sitting High Court Judge on such an errand because the abducted person happened to be the daughter of the Union Home Minister.
72 Cf. Earl of Shrewsbury’s case, (1611) 9 Co 42a (50).
73 K. Veeraswami v UOI, (1991) 3 SCC 655 [LNIND 1991 SC 320] (paras. 4, 12, 55, 86, 87) PER SHETTY,
VENKATACHALLIAH, RAY and SHARMA JJ. (VERMA, J., dissenting).
74 K. Veeraswami v UOI, (1991) 3 SCC 655 [LNIND 1991 SC 320] (paras. 4, 12, 55, 86, 87) PER SHETTY,
VENKATACHALLIAH, RAY and SHARMA JJ. (VERMA, J., dissenting).
75 See Tirupati Balaji Developers Pvt Ltd v State of Bihar, AIR 2004 SC 2351 [LNIND 2004 SC 538]: (2004) 5 SCC 1 [LNIND 2004
SC 538].
76 Rajiv Ranjan Singh (Lalan) v UOI, (2005) 11 SCC 312 [LNIND 2006 SC 629] : (2005) 5 Scale 297.
77 Sarojini Ramaswami v UOI, AIR 1992 SC 2219 [LNIND 1992 SC 1000]: (1992) 4 SCC 506 [LNIND 1992 SC 1000]; Sub
Committee on Judicial Accountability v UOI, AIR 1992 SC 320 [LNIND 1991 SC 968]: (1991) 4 SCC 699 [LNIND 1991 SC 968] :
(1991) 2 SCR 741.
78 Sub Committee on Judicial Accountability v UOI, (1991) 4 SCC 699 [LNIND 1991 SC 968] : 1991 (Supp-2) SCR 1 (para 112).
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79 The date appointed is 1 January 1969: see Gaz. of India 1 January 1969, II, section 3(i), Ext. p 5.
80 Krishna Swami v UOI, AIR 1993 SC 1407 [LNIND 1992 SC 1005] : (1992) 4 SCC 605 [LNIND 1992 SC 1005] .
81 See Sarojini Ramaswami v UOI, AIR 1992 SC 2219 [LNIND 1992 SC 1000] : (1992) 4 SCC 506 [LNIND 1992 SC 1000] .
84 Sarojini Ramaswami v UOI, AIR 1992 SC 2219 [LNIND 1992 SC 1000] : (1992) 4 SCC 506 [LNIND 1992 SC 1000] .
85 Sarojini Ramaswami v UOI, AIR 1992 SC 2219 [LNIND 1992 SC 1000] : (1992) 4 SCC 506 [LNIND 1992 SC 1000] ; Krishna
Swami v UOI, AIR 1993 SC 1407 [LNIND 1992 SC 1005] : (1992) 4 SCC 605 [LNIND 1992 SC 1005] ; Sub Committee on
Judicial Accountability v UOI, (1991) 4 SCC 699 [LNIND 1991 SC 968] : 1991 (Supp-2) SCR 1.
86 Sarojini Ramaswami v UOI, AIR 1992 SC 2219 [LNIND 1992 SC 1000] : (1992) 4 SCC 506 [LNIND 1992 SC 1000] .
87 K. Veeraswami v UOI, (1991) 3 SCC 655 [LNIND 1991 SC 320] .

88 Sub Committee on Judicial Accountability v UOI, AIR 1992 SC 320 [LNIND 1991 SC 968] : (1991) 4 SCC 699 [LNIND 1991 SC
968] .
89 Avadhesh v State, AIR 1991 All 52 [LNIND 1990 ALL 21](para. 6). See also Sub Committee on Judicial Accountability v UOI,
AIR 1992 SC 320 [LNIND 1991 SC 968]: (1991) 4 SCC 699 [LNIND 1991 SC 968], wherein the court rejected the contention that
court itself has jurisdiction to remove a Judge and held that jurisdiction is only with the Consti- tutional machinery as provided in
the Article.
90 K. Veeraswami v UOI, (1991) 3 SCC 655 [LNIND 1991 SC 320] : (1991) 3 SCR 189 [LNIND 1991 SC 320] : (1991) 3 JT 198 :
(1991) SCC (Crl.) 734.
91 Sub Committee on Judicial Accountability v UOI, AIR 1992 SC 320 [LNIND 1991 SC 968]: (1991) 4 SCC 699 [LNIND 1991 SC
968].
92 Lily Thomas v Speaker, Lok Sabha, (1993) 4 SCC 234.
93 Sub-Committee for Judicial Accountability v UOI, AIR 1992 SC 320 [LNIND 1991 SC 968]: (1992) 4 SCC 699; see also Sarojini
Ramaswamy v UOI, AIR 1992 SC 2219 [LNIND 1992 SC 1000]: (1992) 4 SCC 506 [LNIND 1992 SC 1000].
94 K. Veeraswami v UOI, (1991) 3 SCC 655 [LNIND 1991 SC 320] : (1991) 3 SCR 189 [LNIND 1991 SC 320] : (1991) 3 JT 198.
95 Sub-Committee v UOI (I), AIR 1991 SC 1598 [LNIND 1991 SC 274]: (1991) 2 SCR 741 : (1991) 3 SCC 65 [LNIND 1991 SC 274]
(dated 8 May 1991).
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96 Sub-Committee v UOI (II), (1991) 4 SCC 699 [LNIND 1991 SC 968] : AIR 1992 SC 320 [LNIND 1991 SC 968](dated 29 October
1991).
97 Cf. State of Punjab v Satya Pal, AIR 1969 SC 903 [LNIND 1968 SC 182] : (1969) 1 SCR 478 [LNIND 1968 SC 182] .
98 Sub-Committee v UOI (II), (1991) 4 SCC 699 [LNIND 1991 SC 968] : AIR 1992 SC 320 [LNIND 1991 SC 968] (dated 29 October
1991).
1991).
2 See M.P. JAIN ON INDIAN CONSTITUTIONAL LAW, 5th Edn (2003), vol I, pp 237-38.
1991).
4 Sub-Committee for Judicial Accountability v UOI, AIR 1992 SC 320 [LNIND 1991 SC 968]: (1992) 4 SCC 399.
7 See M.P. Jain, Indian Constitutional Law, vol I updated 6th Edn, pp 280, 281, 282.
End of Document
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[Art 124-A] National Judicial Appointment Commission-
DD Basu: Commentary on the Constitution of India, 9th ed, Vol 9, Articles 124 - 213 > DD Basu: Commentary
on the Constitution of India, 9th ed, Vol 9, Articles 124 - 213 > Commentary on the Constitution of India >
PART V THE UNION (Contd.) > CHAPTER IV THE UNION JUDICIARY

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ministerially. 14
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Constitution,
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as judicial.34
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observed:
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State.74
Donaldson MR said:
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law”.
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are not courts.
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judicial function.
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invention.95
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function.
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(see below).
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held:
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court.
binding judgment.37
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Constitution.43
Settlement, 1700.
government.”44
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official conduct.
47-48)
individualism.
said:
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judge.
us........”
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Judiciary.58
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Scheme”.61
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the executive”.
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States that a
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enactment.
Constitution.
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today.
otiose”.
unfair.
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agency.
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judiciary.
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129, post.
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independence”.
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favour.
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202(3)(d)]58
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IV. Oath of office
Executive.
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judicial duties.73
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accordingly.
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goes on to say,
existing rule.

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mentality.83
Committed Judges
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before them.”96
Constitution, e.g.;
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and High Courts.—
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U.S.A. (A) U.S.A.—
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permitted by law.
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India (D) India.—
observed:
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purposes.
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fabric.
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Courts.
Supreme Court.34
India (D) India.—
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certificate.
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in the country.
Switzerland
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conditions:
Chambers.
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constitutionality.
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yet promulgated.
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U.S.A. (A) U.S.A.—
wrote HAMILTON:43
Again,
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Court. For:
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“justiciable’).
States.
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defence.55
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remarks that
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(C) Japan.—
Japan
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a treaty is
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Eire (D) Eire.—
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by Parliament.
As MAY observes:
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Parliament.67
India (G) India.—
not.68
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96,
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impugned Act.85
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Article 245 post).
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by the Legislature.
Federal Court.
Constitution.4
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provision.
also ascertain.
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Sri Lanka.
*[Art 124-A] National Judicial Appointment Commission-
(1) There shall be a commission to be known as National Judicial Appointment Commission

consisting of the following, namely:—
(a) The Chief Justice of India – Chairperson ex officio.

(b) Two other senior Judges of the Supreme Court next to the Chief Justice of India –
Members ex officio.
(c) Union Minister in charge of Law and Justice – Member ex officio.
(d) Two eminent persons shall be nominated by the Committee consisting of the Prime
Minister, Chief Justice of India and the Leader of Opposition in the House of the People or
where there is no such Leader of Opposition, then the Leader of the largest Opposition
Party in the House of the People – Members.
Provided that one of the eminent persons should be nominated amongst the persons belonging
to Scheduled Castes, Scheduled Tribes, other Backward Classes, Minorities or Women.
Provided that an eminent person shall be nominated for a period of three years and he shall not
be eligible for renomination.
(2) No act of proceedings of National Judicial Commission shall be questioned or invalidated

merely on the ground of existence of any vacancy or defect in the constitution of the
Commission.]
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7 Muskrat v U.S., (1911) 219 US 346 (356).
2003 SC 260] .

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1.015 at p 11.
260] .
[LNIND 1961 SC 206] .
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107 : 1958 SCR 1040 [LNIND 1957 SC 134] .
[LNIND 1977 SC 214] .
SCR 530 [LNIND 1970 SC 40] .
(2006) 2 SCC 1 [LNIND 2006 SC 1219] .
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SCR 206 [LNIND 1986 SC 307] .
40 [LNIND 2001 SC 2120] .
(2001) 4 SCC 558 [LNIND 2001 SC 806] .
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2002 SC 400] .
.

433 [LNIND 1964 SC 346] .
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SC 206] : (1961) 31 Com Cases 387 .
[LNIND 1962 SC 337] .
95 Scott v Scott, (1913) AC 417 .
359 .
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[LNIND 1978 SC 54] .
(1998) 3 JT 269 .
[LNIND 1978 SC 54] .
(1997) 9 JT 492 .
(1990) 2 SCR 110 [LNIND 1990 SC 177] .
2] : 1986 Cr LJ 320 .
24 1 B1 Com 69.
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(2005) 2 SC 8 .
672 .
(2005) 2 SC 8 .
[LNIND 2002 SC 249] (227).
p 164.
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(1977) 4 SCC 193 [LNIND 1977 SC 268] .
175-76.
SC 1118] (9).
(Supp-2) SCR 659.

(paras. 867, 877, 880, PATHAK, J.).
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SCC 87.
63 Golden v U.K., (1970) 1 EHRR 524 .
65 Re., Mc., (1985) AC 528 (HL).
SC 538] .
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11] .
85 VII CAD 853 and 1000.

165.
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AIR 1979 SC 478 [LNIND 1978 SC 661] .
[LNIND 1950 SC 22] : 1950 AIR 27 .
(1955) 349 US 133].


(1978) 1 SCR 423 [LNIND 1977 SC 268] .
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753] : (1997) 6 SCC 339 [LNIND 1997 SC 753] .
[LNIND 1997 SC 753] .
1994 SC 268 [LNIND 1993 SC 1231] : (1993) 4 SCC 441 .

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1 SCR 423 [LNIND 1977 SC 268] .
[LNIND 1998 SC 457] : (1998) 3 JT 269 .
(1988) 6 JT 571 : (1988) 7 Supreme 473 .
1998 SC 930] : (1998) 7 SCC 248 [LNIND 1998 SC 930] .
1169 [LNIND 1953 SC 59] .
8 JT 354 .
II 2nd Edn, pp 1935-1941.
Constitution.

60 M v Home Office, (1994) 1 AC 377 .
67 Re, C. (an Infant), (1939) Ch 363 .
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[LNIND 1978 SC 54] .
457] : (1998) 3 JT 269 .
J).
365 : 1981 Supp SCC 87].
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(1994) 2 SCC 303 [LNIND 1994 SC 160] .
1977 SC 268] .
SCR 659.
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63] .
41 See C6 vol A, pp 349-521.
Constitution Act.


47 supra.
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p 579.


(1971) 1 SCR 697 [LNIND 1970 SC 286] .
206 [LNIND 1986 SC 307] .
206 [LNIND 1986 SC 307] .
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
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SCR 347 [LNIND 1975 SC 432] .
[LNIND 1980 SC 257] .
[LNIND 1953 SC 70] .
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
206 [LNIND 1986 SC 307] .
273 [LNIND 1957 SC 93] .
SC 154] (paras. 950, 1287, 1381, 1586, 1592).
273 [LNIND 1957 SC 93] .
1207] .
(2005) 10 SCC 110 [LNIND 2004 SC 1207] .
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1997 SC 488]: (1997) 3 SCC 261 [LNIND 1997 SC 488].
96 : (1991) 4 JT 361 .
* Ins. by the Constitution (Ninety-ninth Amendment) Act, 2014, sec. 3 (w.e.f. 13 April 2015, vide S.O. 999(E), dated 13 April
2015.†
† The Supreme Court in Advocates-on-Record Association v UOI, (decided on 16 October 2015) held the Constitution (Ninety-
ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 (40 of 2014) as void and restored the
collegium system for appointment of judges to the higher judiciary.
End of Document
Dinesh Mishra
*[Art 124-B] *Function of the Commission-

Dinesh Mishra
Page 2 of 111
Dinesh Mishra
Page 3 of 111
ministerially. 14
Dinesh Mishra
Page 4 of 111
Constitution,
Dinesh Mishra
Page 5 of 111

Dinesh Mishra
Page 6 of 111
as judicial.34
Dinesh Mishra
Page 7 of 111
Dinesh Mishra
Page 8 of 111
observed:
Dinesh Mishra
Page 9 of 111
Dinesh Mishra
Page 10 of 111
State.74
Donaldson MR said:
Dinesh Mishra
Page 11 of 111
law”.
Dinesh Mishra
Page 12 of 111
Dinesh Mishra
Page 13 of 111
are not courts.
Dinesh Mishra
Page 14 of 111
judicial function.
Dinesh Mishra
Page 15 of 111
invention.95
Dinesh Mishra
Page 16 of 111
Dinesh Mishra
Page 17 of 111
Dinesh Mishra
Page 18 of 111
function.
Dinesh Mishra
Page 19 of 111
(see below).
Dinesh Mishra
Page 20 of 111
held:
Dinesh Mishra
Page 21 of 111
court.
binding judgment.37
Dinesh Mishra
Page 22 of 111
Dinesh Mishra
Page 23 of 111
Dinesh Mishra
Page 24 of 111

Constitution.43
Settlement, 1700.
government.”44
Dinesh Mishra
Page 25 of 111
official conduct.
47-48)
individualism.
said:
Dinesh Mishra
Page 26 of 111
Dinesh Mishra
Page 27 of 111
judge.
us........”
Dinesh Mishra
Page 28 of 111
Dinesh Mishra
Page 29 of 111
Judiciary.58
Dinesh Mishra
Page 30 of 111
Scheme”.61
Dinesh Mishra
Page 31 of 111
the executive”.
Dinesh Mishra
Page 32 of 111
States that a
Dinesh Mishra
Page 33 of 111
enactment.
Constitution.
Dinesh Mishra
Page 34 of 111
today.
otiose”.
unfair.
Dinesh Mishra
Page 35 of 111
agency.
Dinesh Mishra
Page 36 of 111
Dinesh Mishra
Page 37 of 111
Dinesh Mishra
Page 38 of 111
judiciary.
Dinesh Mishra
Page 39 of 111
Dinesh Mishra
Page 40 of 111
129, post.
Dinesh Mishra
Page 41 of 111
independence”.
Dinesh Mishra
Page 42 of 111
Dinesh Mishra
Page 43 of 111
favour.
Dinesh Mishra
Page 44 of 111
Dinesh Mishra
Page 45 of 111
Dinesh Mishra
Page 46 of 111
202(3)(d)]58
Dinesh Mishra
Page 47 of 111
IV. Oath of office
Executive.
Dinesh Mishra
Page 48 of 111
Dinesh Mishra
Page 49 of 111
judicial duties.73
Dinesh Mishra
Page 50 of 111
accordingly.
Dinesh Mishra
Page 51 of 111
goes on to say,
existing rule.

Dinesh Mishra
Page 52 of 111
mentality.83
Committed Judges
Dinesh Mishra
Page 53 of 111

Dinesh Mishra
Page 54 of 111
before them.”96
Constitution, e.g.;
Dinesh Mishra
Page 55 of 111
Dinesh Mishra
Page 56 of 111
and High Courts.—
Dinesh Mishra
Page 57 of 111
U.S.A. (A) U.S.A.—
Dinesh Mishra
Page 58 of 111
permitted by law.
Dinesh Mishra
Page 59 of 111
India (D) India.—
observed:
Dinesh Mishra
Page 60 of 111
purposes.
Dinesh Mishra
Page 61 of 111
fabric.
Dinesh Mishra
Page 62 of 111
Dinesh Mishra
Page 63 of 111
Dinesh Mishra
Page 64 of 111
Dinesh Mishra
Page 65 of 111
Courts.
Supreme Court.34
India (D) India.—
Dinesh Mishra
Page 66 of 111
certificate.
Dinesh Mishra
Page 67 of 111
Dinesh Mishra
Page 68 of 111
in the country.
Switzerland
Dinesh Mishra
Page 69 of 111
conditions:
Chambers.
Dinesh Mishra
Page 70 of 111
constitutionality.
Dinesh Mishra
Page 71 of 111
Dinesh Mishra
Page 72 of 111
yet promulgated.
Dinesh Mishra
Page 73 of 111
U.S.A. (A) U.S.A.—
wrote HAMILTON:43
Again,
Dinesh Mishra
Page 74 of 111
Dinesh Mishra
Page 75 of 111
Court. For:
Dinesh Mishra
Page 76 of 111
“justiciable’).
States.
Dinesh Mishra
Page 77 of 111
defence.55
Dinesh Mishra
Page 78 of 111
remarks that
Dinesh Mishra
Page 79 of 111
(C) Japan.—
Japan
Dinesh Mishra
Page 80 of 111
a treaty is
Dinesh Mishra
Page 81 of 111
Eire (D) Eire.—
Dinesh Mishra
Page 82 of 111
by Parliament.
As MAY observes:
Dinesh Mishra
Page 83 of 111
Parliament.67
India (G) India.—
not.68
Dinesh Mishra
Page 84 of 111
96,
Dinesh Mishra
Page 85 of 111
Dinesh Mishra
Page 86 of 111
impugned Act.85
Dinesh Mishra
Page 87 of 111
Dinesh Mishra
Page 88 of 111
Article 245 post).
Dinesh Mishra
Page 89 of 111
by the Legislature.
Federal Court.
Constitution.4
Dinesh Mishra
Page 90 of 111
provision.
also ascertain.
Dinesh Mishra
Page 91 of 111
Dinesh Mishra
Page 92 of 111
Sri Lanka.
It shall be the duty of the National Judicial Appointment Commission to—
(a) recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court,
Chief Justices of High Courts and other Judges of the High Courts.
(b) recommend transfer of Chief Justice and other Judges of High Court from one High Court to
any other High Court.
(c) ensure that the person recommended is of ability and integrity.]

Dinesh Mishra
Page 93 of 111
7 Muskrat v U.S., (1911) 219 US 346 (356).
2003 SC 260] .

Dinesh Mishra
Page 94 of 111
1.015 at p 11.
260] .
[LNIND 1961 SC 206] .
107 : 1958 SCR 1040 [LNIND 1957 SC 134] .
Dinesh Mishra
Page 95 of 111
[LNIND 1977 SC 214] .
SCR 530 [LNIND 1970 SC 40] .
(2006) 2 SCC 1 [LNIND 2006 SC 1219] .
SCR 206 [LNIND 1986 SC 307] .
40 [LNIND 2001 SC 2120] .
Dinesh Mishra
Page 96 of 111
(2001) 4 SCC 558 [LNIND 2001 SC 806] .
2002 SC 400] .
Dinesh Mishra
Page 97 of 111
.

433 [LNIND 1964 SC 346] .
SC 206] : (1961) 31 Com Cases 387 .
[LNIND 1962 SC 337] .
Dinesh Mishra
Page 98 of 111
95 Scott v Scott, (1913) AC 417 .
359 .
Dinesh Mishra
Page 99 of 111
[LNIND 1978 SC 54] .
(1998) 3 JT 269 .
[LNIND 1978 SC 54] .
(1997) 9 JT 492 .
(1990) 2 SCR 110 [LNIND 1990 SC 177] .
2] : 1986 Cr LJ 320 .
24 1 B1 Com 69.
(2005) 2 SC 8 .
Dinesh Mishra
Page 100 of 111
672 .
(2005) 2 SC 8 .
[LNIND 2002 SC 249] (227).
p 164.
(1977) 4 SCC 193 [LNIND 1977 SC 268] .
175-76.
Dinesh Mishra
Page 101 of 111
SC 1118] (9).
(Supp-2) SCR 659.

(paras. 867, 877, 880, PATHAK, J.).
Dinesh Mishra
Page 102 of 111
SCC 87.
63 Golden v U.K., (1970) 1 EHRR 524 .
65 Re., Mc., (1985) AC 528 (HL).
SC 538] .
Dinesh Mishra
Page 103 of 111
11] .
85 VII CAD 853 and 1000.

165.
AIR 1979 SC 478 [LNIND 1978 SC 661] .
Dinesh Mishra
Page 104 of 111
[LNIND 1950 SC 22] : 1950 AIR 27 .
(1955) 349 US 133].


(1978) 1 SCR 423 [LNIND 1977 SC 268] .
753] : (1997) 6 SCC 339 [LNIND 1997 SC 753] .
Dinesh Mishra
Page 105 of 111
[LNIND 1997 SC 753] .
1994 SC 268 [LNIND 1993 SC 1231] : (1993) 4 SCC 441 .

1 SCR 423 [LNIND 1977 SC 268] .
[LNIND 1998 SC 457] : (1998) 3 JT 269 .
(1988) 6 JT 571 : (1988) 7 Supreme 473 .
1998 SC 930] : (1998) 7 SCC 248 [LNIND 1998 SC 930] .
Dinesh Mishra
Page 106 of 111
1169 [LNIND 1953 SC 59] .
8 JT 354 .
II 2nd Edn, pp 1935-1941.
Constitution.

60 M v Home Office, (1994) 1 AC 377 .
67 Re, C. (an Infant), (1939) Ch 363 .

Dinesh Mishra
Page 107 of 111
[LNIND 1978 SC 54] .
457] : (1998) 3 JT 269 .
J).
365 : 1981 Supp SCC 87].
Dinesh Mishra
Page 108 of 111
(1994) 2 SCC 303 [LNIND 1994 SC 160] .
1977 SC 268] .
SCR 659.
Dinesh Mishra
Page 109 of 111
63] .
41 See C6 vol A, pp 349-521.
Constitution Act.


47 supra.

Dinesh Mishra
Page 110 of 111
p 579.


(1971) 1 SCR 697 [LNIND 1970 SC 286] .
206 [LNIND 1986 SC 307] .
206 [LNIND 1986 SC 307] .
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
SCR 347 [LNIND 1975 SC 432] .
[LNIND 1980 SC 257] .
Dinesh Mishra
Page 111 of 111
[LNIND 1953 SC 70] .
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
206 [LNIND 1986 SC 307] .
273 [LNIND 1957 SC 93] .
SC 154] (paras. 950, 1287, 1381, 1586, 1592).
273 [LNIND 1957 SC 93] .
1207] .
(2005) 10 SCC 110 [LNIND 2004 SC 1207] .
1997 SC 488]: (1997) 3 SCC 261 [LNIND 1997 SC 488].
96 : (1991) 4 JT 361 .
End of Document
Dinesh Mishra
*[Art 124-C] Power of Parliament to make laws-

Dinesh Mishra
Page 2 of 112
Dinesh Mishra
Page 3 of 112
ministerially. 14
Dinesh Mishra
Page 4 of 112
Constitution,
Dinesh Mishra
Page 5 of 112

Dinesh Mishra
Page 6 of 112
as judicial.34
Dinesh Mishra
Page 7 of 112
Dinesh Mishra
Page 8 of 112
observed:
Dinesh Mishra
Page 9 of 112
Dinesh Mishra
Page 10 of 112
State.74
Donaldson MR said:
Dinesh Mishra
Page 11 of 112
law”.
Dinesh Mishra
Page 12 of 112
Dinesh Mishra
Page 13 of 112
are not courts.
Dinesh Mishra
Page 14 of 112
judicial function.
Dinesh Mishra
Page 15 of 112
invention.95
Dinesh Mishra
Page 16 of 112
Dinesh Mishra
Page 17 of 112
Dinesh Mishra
Page 18 of 112
function.
Dinesh Mishra
Page 19 of 112
(see below).
Dinesh Mishra
Page 20 of 112
held:
Dinesh Mishra
Page 21 of 112
court.
binding judgment.37
Dinesh Mishra
Page 22 of 112
Dinesh Mishra
Page 23 of 112
Dinesh Mishra
Page 24 of 112

Constitution.43
Settlement, 1700.
government.”44
Dinesh Mishra
Page 25 of 112
official conduct.
47-48)
individualism.
said:
Dinesh Mishra
Page 26 of 112
Dinesh Mishra
Page 27 of 112
judge.
us........”
Dinesh Mishra
Page 28 of 112
Dinesh Mishra
Page 29 of 112
Judiciary.58
Dinesh Mishra
Page 30 of 112
Scheme”.61
Dinesh Mishra
Page 31 of 112
the executive”.
Dinesh Mishra
Page 32 of 112
States that a
Dinesh Mishra
Page 33 of 112
enactment.
Constitution.
Dinesh Mishra
Page 34 of 112
today.
otiose”.
unfair.
Dinesh Mishra
Page 35 of 112
agency.
Dinesh Mishra
Page 36 of 112
Dinesh Mishra
Page 37 of 112
Dinesh Mishra
Page 38 of 112
judiciary.
Dinesh Mishra
Page 39 of 112
Dinesh Mishra
Page 40 of 112
129, post.
Dinesh Mishra
Page 41 of 112
independence”.
Dinesh Mishra
Page 42 of 112
Dinesh Mishra
Page 43 of 112
favour.
Dinesh Mishra
Page 44 of 112
Dinesh Mishra
Page 45 of 112
Dinesh Mishra
Page 46 of 112
202(3)(d)]58
Dinesh Mishra
Page 47 of 112
IV. Oath of office
Executive.
Dinesh Mishra
Page 48 of 112
Dinesh Mishra
Page 49 of 112
judicial duties.73
Dinesh Mishra
Page 50 of 112
accordingly.
Dinesh Mishra
Page 51 of 112
goes on to say,
existing rule.

Dinesh Mishra
Page 52 of 112
mentality.83
Committed Judges
Dinesh Mishra
Page 53 of 112

Dinesh Mishra
Page 54 of 112
before them.”96
Constitution, e.g.;
Dinesh Mishra
Page 55 of 112
Dinesh Mishra
Page 56 of 112
and High Courts.—
Dinesh Mishra
Page 57 of 112
U.S.A. (A) U.S.A.—
Dinesh Mishra
Page 58 of 112
permitted by law.
Dinesh Mishra
Page 59 of 112
India (D) India.—
observed:
Dinesh Mishra
Page 60 of 112
purposes.
Dinesh Mishra
Page 61 of 112
fabric.
Dinesh Mishra
Page 62 of 112
Dinesh Mishra
Page 63 of 112
Dinesh Mishra
Page 64 of 112
Dinesh Mishra
Page 65 of 112
Courts.
Supreme Court.34
India (D) India.—
Dinesh Mishra
Page 66 of 112
certificate.
Dinesh Mishra
Page 67 of 112
Dinesh Mishra
Page 68 of 112
in the country.
Switzerland
Dinesh Mishra
Page 69 of 112
conditions:
Chambers.
Dinesh Mishra
Page 70 of 112
constitutionality.
Dinesh Mishra
Page 71 of 112
Dinesh Mishra
Page 72 of 112
yet promulgated.
Dinesh Mishra
Page 73 of 112
U.S.A. (A) U.S.A.—
wrote HAMILTON:43
Again,
Dinesh Mishra
Page 74 of 112
Dinesh Mishra
Page 75 of 112
Court. For:
Dinesh Mishra
Page 76 of 112
“justiciable’).
States.
Dinesh Mishra
Page 77 of 112
defence.55
Dinesh Mishra
Page 78 of 112
remarks that
Dinesh Mishra
Page 79 of 112
(C) Japan.—
Japan
Dinesh Mishra
Page 80 of 112
a treaty is
Dinesh Mishra
Page 81 of 112
Eire (D) Eire.—
Dinesh Mishra
Page 82 of 112
by Parliament.
As MAY observes:
Dinesh Mishra
Page 83 of 112
Parliament.67
India (G) India.—
not.68
Dinesh Mishra
Page 84 of 112
96,
Dinesh Mishra
Page 85 of 112
Dinesh Mishra
Page 86 of 112
impugned Act.85
Dinesh Mishra
Page 87 of 112
Dinesh Mishra
Page 88 of 112
Article 245 post).
Dinesh Mishra
Page 89 of 112
by the Legislature.
Federal Court.
Constitution.4
Dinesh Mishra
Page 90 of 112
provision.
also ascertain.
Dinesh Mishra
Page 91 of 112
Dinesh Mishra
Page 92 of 112
Sri Lanka.
Parliament may, by law, regulate the procedure for the appointment of Chief Justice of India and other
Judges of the Supreme Court and Chief Justice and other Judges of High Courts and empower the
Commission to lay down by regulation the procedure for the discharge of its function, the manner of
selection of persons for appointment and such other members as may be considered necessary by it.]
Articles 124A, 124B and 124C were inserted in the Constitution, through the Constitution (99th
Amendment) Act by following the procedure contemplated Under Article 368(2) of the Constitution.
The amendment received the assent of the President on 31 December 2014 and was given effect to
with effect from 13 April 2015 (consequent upon its notification in the Gazette of India
(Extraordinary) Pt II, section 1). Pursuant to the Constitution (99th Amendment), the Parliament
enacted the National Judicial Appointments Commission Act, 2014. The National Judicial
Appointments Commission Act received the assent of the President on 31 December 2014. The NJAC
Act was also brought into force with effect from 13 April 2015 (by its notification in the Gazette of
India (Extraordinary) Pt II, section 1).
Article 124A (1) provided for the constitution and the composition of the National Judicial
Appointments Commission (NJAC). The National Judicial Appointments Commission Act, 2014
emanated from Article 124C. The NJAC Act had no independent existence in the absence of the
NJAC, constituted under Article 124A (1). In Supreme Court Advocates-on-Record-Association v
UOI,8 a Constitution Bench by a majority of 4:1 declared the Constitution (99th Amendment) Act as
well as the National Judicial Appointments Commission Act, 2014 as unconstitutional and void. The
system of appointment of Judges to the Supreme Court, and Chief Justices and Judges to the High
Courts; and transfer of Chief Justices and Judges of High Courts from one High Court, to another, as
existing prior to the Constitution (Ninety-ninth Amendment) Act, 2014 (called the “collegium
system”), was declared to be operative.
Dinesh Mishra
Page 93 of 112

7 Muskrat v U.S., (1911) 219 US 346 (356).
2003 SC 260] .

Dinesh Mishra
Page 94 of 112
1.015 at p 11.
260] .
[LNIND 1961 SC 206] .
Dinesh Mishra
Page 95 of 112
107 : 1958 SCR 1040 [LNIND 1957 SC 134] .
[LNIND 1977 SC 214] .
SCR 530 [LNIND 1970 SC 40] .
(2006) 2 SCC 1 [LNIND 2006 SC 1219] .
Dinesh Mishra
Page 96 of 112
SCR 206 [LNIND 1986 SC 307] .
40 [LNIND 2001 SC 2120] .
(2001) 4 SCC 558 [LNIND 2001 SC 806] .
Dinesh Mishra
Page 97 of 112
2002 SC 400] .
.

433 [LNIND 1964 SC 346] .
Dinesh Mishra
Page 98 of 112
SC 206] : (1961) 31 Com Cases 387 .
[LNIND 1962 SC 337] .
95 Scott v Scott, (1913) AC 417 .
359 .
Dinesh Mishra
Page 99 of 112
[LNIND 1978 SC 54] .
(1998) 3 JT 269 .
[LNIND 1978 SC 54] .
(1997) 9 JT 492 .
(1990) 2 SCR 110 [LNIND 1990 SC 177] .
2] : 1986 Cr LJ 320 .
24 1 B1 Com 69.
Dinesh Mishra
Page 100 of 112
(2005) 2 SC 8 .
672 .
(2005) 2 SC 8 .
[LNIND 2002 SC 249] (227).
p 164.
Dinesh Mishra
Page 101 of 112
(1977) 4 SCC 193 [LNIND 1977 SC 268] .
175-76.
SC 1118] (9).
(Supp-2) SCR 659.

(paras. 867, 877, 880, PATHAK, J.).
Dinesh Mishra
Page 102 of 112
SCC 87.
63 Golden v U.K., (1970) 1 EHRR 524 .
65 Re., Mc., (1985) AC 528 (HL).
SC 538] .
Dinesh Mishra
Page 103 of 112
11] .
85 VII CAD 853 and 1000.

165.
Dinesh Mishra
Page 104 of 112
AIR 1979 SC 478 [LNIND 1978 SC 661] .
[LNIND 1950 SC 22] : 1950 AIR 27 .
(1955) 349 US 133].


(1978) 1 SCR 423 [LNIND 1977 SC 268] .
Dinesh Mishra
Page 105 of 112
753] : (1997) 6 SCC 339 [LNIND 1997 SC 753] .
[LNIND 1997 SC 753] .
1994 SC 268 [LNIND 1993 SC 1231] : (1993) 4 SCC 441 .

Dinesh Mishra
Page 106 of 112
1 SCR 423 [LNIND 1977 SC 268] .
[LNIND 1998 SC 457] : (1998) 3 JT 269 .
(1988) 6 JT 571 : (1988) 7 Supreme 473 .
1998 SC 930] : (1998) 7 SCC 248 [LNIND 1998 SC 930] .
1169 [LNIND 1953 SC 59] .
8 JT 354 .
II 2nd Edn, pp 1935-1941.
Constitution.

60 M v Home Office, (1994) 1 AC 377 .
67 Re, C. (an Infant), (1939) Ch 363 .
Dinesh Mishra
Page 107 of 112

[LNIND 1978 SC 54] .
457] : (1998) 3 JT 269 .
J).
365 : 1981 Supp SCC 87].
Dinesh Mishra
Page 108 of 112
(1994) 2 SCC 303 [LNIND 1994 SC 160] .
1977 SC 268] .
SCR 659.
Dinesh Mishra
Page 109 of 112
63] .
41 See C6 vol A, pp 349-521.
Constitution Act.


47 supra.
Dinesh Mishra
Page 110 of 112

p 579.


(1971) 1 SCR 697 [LNIND 1970 SC 286] .
206 [LNIND 1986 SC 307] .
206 [LNIND 1986 SC 307] .
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
Dinesh Mishra
Page 111 of 112
SCR 347 [LNIND 1975 SC 432] .
[LNIND 1980 SC 257] .
[LNIND 1953 SC 70] .
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
206 [LNIND 1986 SC 307] .
273 [LNIND 1957 SC 93] .
SC 154] (paras. 950, 1287, 1381, 1586, 1592).
273 [LNIND 1957 SC 93] .
1207] .
(2005) 10 SCC 110 [LNIND 2004 SC 1207] .
Dinesh Mishra
Page 112 of 112
1997 SC 488]: (1997) 3 SCC 261 [LNIND 1997 SC 488].
96 : (1991) 4 JT 361 .
8 Supreme Court Advocates-on-Record-Association v UOI, 2015 (11) Scale 1 [LNIND 2015 SC 611] : (2016) 5 SCC 1 [LNIND 2015
SC 611] .
End of Document
Dinesh Mishra
*[Art 125] Salaries, etc. of Judge -

Dinesh Mishra
Page 2 of 117
Dinesh Mishra
Page 3 of 117
ministerially. 14
Dinesh Mishra
Page 4 of 117
Constitution,
Dinesh Mishra
Page 5 of 117

Dinesh Mishra
Page 6 of 117
as judicial.34
Dinesh Mishra
Page 7 of 117
Dinesh Mishra
Page 8 of 117
observed:
Dinesh Mishra
Page 9 of 117
Dinesh Mishra
Page 10 of 117
State.74
Donaldson MR said:
Dinesh Mishra
Page 11 of 117
law”.
Dinesh Mishra
Page 12 of 117
Dinesh Mishra
Page 13 of 117
are not courts.
Dinesh Mishra
Page 14 of 117
judicial function.
Dinesh Mishra
Page 15 of 117
invention.95
Dinesh Mishra
Page 16 of 117
Dinesh Mishra
Page 17 of 117
Dinesh Mishra
Page 18 of 117
function.
Dinesh Mishra
Page 19 of 117
(see below).
Dinesh Mishra
Page 20 of 117
held:
Dinesh Mishra
Page 21 of 117
court.
binding judgment.37
Dinesh Mishra
Page 22 of 117
Dinesh Mishra
Page 23 of 117
Dinesh Mishra
Page 24 of 117

Constitution.43
Settlement, 1700.
government.”44
Dinesh Mishra
Page 25 of 117
official conduct.
47-48)
individualism.
said:
Dinesh Mishra
Page 26 of 117
Dinesh Mishra
Page 27 of 117
judge.
us........”
Dinesh Mishra
Page 28 of 117
Dinesh Mishra
Page 29 of 117
Judiciary.58
Dinesh Mishra
Page 30 of 117
Scheme”.61
Dinesh Mishra
Page 31 of 117
the executive”.
Dinesh Mishra
Page 32 of 117
States that a
Dinesh Mishra
Page 33 of 117
enactment.
Constitution.
Dinesh Mishra
Page 34 of 117
today.
otiose”.
unfair.
Dinesh Mishra
Page 35 of 117
agency.
Dinesh Mishra
Page 36 of 117
Dinesh Mishra
Page 37 of 117
Dinesh Mishra
Page 38 of 117
judiciary.
Dinesh Mishra
Page 39 of 117
Dinesh Mishra
Page 40 of 117
129, post.
Dinesh Mishra
Page 41 of 117
independence”.
Dinesh Mishra
Page 42 of 117
Dinesh Mishra
Page 43 of 117
favour.
Dinesh Mishra
Page 44 of 117
Dinesh Mishra
Page 45 of 117
Dinesh Mishra
Page 46 of 117
202(3)(d)]58
Dinesh Mishra
Page 47 of 117
IV. Oath of office
Executive.
Dinesh Mishra
Page 48 of 117
Dinesh Mishra
Page 49 of 117
judicial duties.73
Dinesh Mishra
Page 50 of 117
accordingly.
Dinesh Mishra
Page 51 of 117
goes on to say,
existing rule.

Dinesh Mishra
Page 52 of 117
mentality.83
Committed Judges
Dinesh Mishra
Page 53 of 117

Dinesh Mishra
Page 54 of 117
before them.”96
Constitution, e.g.;
Dinesh Mishra
Page 55 of 117
Dinesh Mishra
Page 56 of 117
and High Courts.—
Dinesh Mishra
Page 57 of 117
U.S.A. (A) U.S.A.—
Dinesh Mishra
Page 58 of 117
permitted by law.
Dinesh Mishra
Page 59 of 117
India (D) India.—
observed:
Dinesh Mishra
Page 60 of 117
purposes.
Dinesh Mishra
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fabric.
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Courts.
Supreme Court.34
India (D) India.—
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certificate.
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in the country.
Switzerland
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conditions:
Chambers.
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constitutionality.
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yet promulgated.
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U.S.A. (A) U.S.A.—
wrote HAMILTON:43
Again,
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Court. For:
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“justiciable’).
States.
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defence.55
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remarks that
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(C) Japan.—
Japan
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a treaty is
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Eire (D) Eire.—
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by Parliament.
As MAY observes:
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Parliament.67
India (G) India.—
not.68
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96,
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impugned Act.85
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Article 245 post).
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by the Legislature.
Federal Court.
Constitution.4
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provision.
also ascertain.
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Sri Lanka.
9(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 deter-mined, 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.
[Art 125.1] OTHER CONSTITUTIONS (A) U.S.A.—
Article III, section 1 of the United States Constitution says:
The Judges both of the Supreme and inferior courts shall receive for their services, a compensation, which shall not be diminished
during their continuance in office.
The 16th Amendment to the Constitution declared:
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The Congress shall have power to lay and collect taxes on incomes, from whatever sources derived
It was held by the Supreme Court that notwithstanding the 16th Amendment, a tax on the income of a
Judge is a diminution of his salary and hence ultra vires.10 The immunity from income tax has,
however, been denied to Judges appointed since the Revenue Act of 1932.11
(B) England.—
Under the Supreme Court Act, 1981, Judges of the Supreme Court of England get a salary of £68,500
a year while the Lord Chief Justice gets £78,500.
Salaries of the Judges are “charged” on the Consolidated Fund and are not, thus, dependable on the
annual vote in Parliament. The Judge’s salary is fixed and paid out of the Consolidated Fund in order
that it may not be subjected to that running fire of criticism in Parliament to which all ordinary items
of budgetary expenditure are liable.12 It is also settled, in practice, that Parliament cannot by law
reduce the salary of sitting Judges. It may be increased, but not reduced by Order in Council.13 Judges
should be independent of Government, but also independent of parties appearing before them. The
principle also raises question about judicial salaries. Judges need be protected from the threat of
government cuts to their salary (lest they should be penalised for unpopular decision). Salaries are
now governed by Statute, i.e., Judges’ Remuneration Act, 1965. The Act of Settlement provided that
judicial salaries should be “ascertained and established” suggesting that judicial salaries should be
fixed by statute and not let to the executive’s discretion. The salary is reviewed by the Senior Salaries
Review Body.14 In 1931, Government sought to cut the salaries of Judges in exercise of powers under
the National Economy Act, 1931, but eventually the cut had to be restored in deference to protests
from the Judges and the public, on the ground that Judges were not “persons in His Majesty’s service”
within the purview of the Act.15
Like many other constitutional principles, judicial independence has many facets. judges should be
independent of the Government, but also independent of the parties appearing before them. The
principle also raises question about judicial salaries. Judges need be protected from the threat of
Government cutting to their salary (lest they be penalised for unpopular decisions). Salaries are now
governed by statute.16 The Act of Settlement provided that judicial salaries should be ascertained and
established suggesting that judicial salaries should be fixed by statute not left to executive discretion
and reviewed by Senior Salaries Review Body. Judges also need to have security of tenure (lest they
be removed for an unpopular decision) to be protected from political pressure and intimidation (but
not necessarily popular criticism) and immune from liability – whether civil or criminal – for the
manner in which they discharge the responsibilities of office.17
(C) Australia.—
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Section 72(iii) of the Constitution Act says:
The Justices of the High Court and of the other courts created by the Parliament—
(iii) shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their
continuance in office.
Judicial emoluments are not, however, immune from taxation.18
(D) Canada.—
Section 100 of the British North America Act provides:
The salaries, allowances and pensions of the Judges shall be fixed and be provided by the Parliament of Canada.
It has been held that a Province has the right to tax Judges appointed by the Dominion, under section
96, though section 100 says that their salary shall be “fixed”.19
[Art 125.2] INDIA [Art 125.2.1] Clause (1): Salaries of Supreme Court Judges
The salaries of the Supreme Court Judges are fixed by the Constitution itself [Second schedule post],20
but by the Constitution (54th Amendment) Act, 1986, Parliament has been given power to enact
legislation in this matter from time-to-time, and so long as this is not done, the 2nd schedule will
continue in operation.
The 54th Constitution Amendment has itself amended the 2nd schedule to raise the salary of a
Supreme Court Judge from 4,000 to 9,000 p.m. and of the Chief Justice of India from 5,000 to
10,000.20 Parliament is also authorised to determine from time-to-time, by law, such question such as
the privileges, allowances, rights in respect of leave of absence and pension for Judges. All these
matters are now regulated by the Supreme Court Judges (Salaries and Conditions of Service) Act,
1958, as amended by the High Court and Supreme Court Judges (Salaries and Conditions of Service)
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Act, 1998.
At present the Chief Justice of India gets a basic salary of Rs. 33,000/- per mensem and all other
judges of the Supreme Court get a basic salary of Rupees Thirty thousand (Rs. 30,000/-) per mensem
under the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Act
of 1998, 1999 and 2005. In addition, they are allowed sumptuary allowance, rent free furnished
residence (or a fixed allowance), telephone, electricity, medical and other facilities exclusive of
allowances, privileges like travelling expenses within the country.
The salaries of the judges of the Supreme Court and the High Court are income and liable to tax under
the head “Salary income” by Act of Parliament in just the same manner as the income of any other
person.21 It was held therein that the fact that the judges of Supreme Court and High Courts are
constitutional functionaries and have no employer does by itself lead to the conclusion that “salaries”
of such judges are not taxable under the Income Tax Act.
By Article 112(3)(d)(i) of the Constitution, the salaries, allowances and pensions payable to Supreme
Court Judges are charged on the Consolidated Fund of India and cannot, therefore, be reduced by vote
of Parliament.
But the President is empowered to reduce the salaries of the Judges during the period of a
Proclamation of “financial emergency”, under Article 360(4)(b), post.
[Art 125.2.2] Clause (2): Privileges and Allowances
By virtue of the power conferred by clause (2), Parliament has enacted the Supreme Court Judges
(Conditions of Service) Act (41) of 1958, laying down the conditions relating to leave, pension and
other privileges and allowances of Supreme Court Judges.
[Art 125.2.3] Proviso: Safeguard against variation
Parliament is empowered to make laws from time-to-time to change the privileges, allowances, leave
and pension of Judges, but this would not affect Judges, who have been appointed before such changes
are made. Once a Judge is appointed, his rights, in accordance with the terms of his appointment,
cannot be changed by Parliament.
The object of this guarantee, in the words of the American Supreme Court22 is:
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like the clause in respect to tenure, to attract good and competent men to the bench and to promote that independence of action and
judgment which is essential to the maintenance of the guarantees, limitations and pervading principles of the Constitution and to
the administration of justice without respect to persons and with equal concern for the poor and the rich.23
But there is nothing to bar the levy of a tax on the income of a Judge.24
[Art 125.2.4] Analogous Provisions.—
Under Article 112(3)(d)(i), the salaries, allowances and pensions payable to or in respect of Judges of
the Supreme Court, and under Article 146(3), the administrative expenses of the Supreme Court,
including salaries, etc., of its staff, are charged upon the Consolidated Fund of India.
To remedy this anomalous position, it was suggested as follows:
It may be submitted, without offence, that if the Government considered that the ex-isting emoluments of public servants were
insufficient to attract proper men, the proper solution was to increase the salary of Supreme Court Judges, correspondingly, by an
amendment of the Constitution so as to maintain the level of judicial independence and aloofness where it had been raised by the
framers of the Constitution, in their anxiety to maintain the efficiency and prestige of the highest Judiciary who are to uphold the
Constitution itself against the Government and its officials.
It is gratifying to note that subsequent to the above suggestion, the salary of the Judges of the Supreme
Court and the High Courts has been raised by passing the 54th Constitution Amendment Act, 1986.
(See p 59, ante)
Also see Article 221 relating to salaries, etc., of High Court Judges, which is exactly similar to Article
125.
The Judge’s salary is assessable to income-tax. Even though as between Judges of superior judiciary
and the Union or State, there is no employer-employee relationship, that does not mean that they do
not receive any salary. They are constitutional functionaries and their salary is also to be assessed in
the same manner as income of any other citizen. Articles 125 and 221 of the Constitution expressly
state that what the Judges receive are “salaries”.25
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7 Muskrat v U.S., (1911) 219 US 346 (356).
2003 SC 260] .

Dinesh Mishra
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1.015 at p 11.
260] .
[LNIND 1961 SC 206] .
Dinesh Mishra
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107 : 1958 SCR 1040 [LNIND 1957 SC 134] .
[LNIND 1977 SC 214] .
SCR 530 [LNIND 1970 SC 40] .
(2006) 2 SCC 1 [LNIND 2006 SC 1219] .
Dinesh Mishra
Page 100 of 117
SCR 206 [LNIND 1986 SC 307] .
40 [LNIND 2001 SC 2120] .
(2001) 4 SCC 558 [LNIND 2001 SC 806] .
Dinesh Mishra
Page 101 of 117
2002 SC 400] .
.

433 [LNIND 1964 SC 346] .
Dinesh Mishra
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SC 206] : (1961) 31 Com Cases 387 .
[LNIND 1962 SC 337] .
95 Scott v Scott, (1913) AC 417 .
359 .
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Page 103 of 117
[LNIND 1978 SC 54] .
(1998) 3 JT 269 .
[LNIND 1978 SC 54] .
(1997) 9 JT 492 .
(1990) 2 SCR 110 [LNIND 1990 SC 177] .
2] : 1986 Cr LJ 320 .
24 1 B1 Com 69.
Dinesh Mishra
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(2005) 2 SC 8 .
672 .
(2005) 2 SC 8 .
[LNIND 2002 SC 249] (227).
p 164.
Dinesh Mishra
Page 105 of 117
(1977) 4 SCC 193 [LNIND 1977 SC 268] .
175-76.
SC 1118] (9).
(Supp-2) SCR 659.

(paras. 867, 877, 880, PATHAK, J.).
Dinesh Mishra
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SCC 87.
63 Golden v U.K., (1970) 1 EHRR 524 .
65 Re., Mc., (1985) AC 528 (HL).
SC 538] .
Dinesh Mishra
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11] .
85 VII CAD 853 and 1000.

165.
Dinesh Mishra
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AIR 1979 SC 478 [LNIND 1978 SC 661] .
[LNIND 1950 SC 22] : 1950 AIR 27 .
(1955) 349 US 133].


(1978) 1 SCR 423 [LNIND 1977 SC 268] .
Dinesh Mishra
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753] : (1997) 6 SCC 339 [LNIND 1997 SC 753] .
[LNIND 1997 SC 753] .
1994 SC 268 [LNIND 1993 SC 1231] : (1993) 4 SCC 441 .

Dinesh Mishra
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1 SCR 423 [LNIND 1977 SC 268] .
[LNIND 1998 SC 457] : (1998) 3 JT 269 .
(1988) 6 JT 571 : (1988) 7 Supreme 473 .
1998 SC 930] : (1998) 7 SCC 248 [LNIND 1998 SC 930] .
1169 [LNIND 1953 SC 59] .
8 JT 354 .
II 2nd Edn, pp 1935-1941.
Constitution.

60 M v Home Office, (1994) 1 AC 377 .
67 Re, C. (an Infant), (1939) Ch 363 .
Dinesh Mishra
Page 111 of 117

[LNIND 1978 SC 54] .
457] : (1998) 3 JT 269 .
J).
365 : 1981 Supp SCC 87].
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(1994) 2 SCC 303 [LNIND 1994 SC 160] .
1977 SC 268] .
SCR 659.
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63] .
41 See C6 vol A, pp 349-521.
Constitution Act.


47 supra.
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p 579.


(1971) 1 SCR 697 [LNIND 1970 SC 286] .
206 [LNIND 1986 SC 307] .
206 [LNIND 1986 SC 307] .
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
Dinesh Mishra
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SCR 347 [LNIND 1975 SC 432] .
[LNIND 1980 SC 257] .
[LNIND 1953 SC 70] .
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
206 [LNIND 1986 SC 307] .
273 [LNIND 1957 SC 93] .
SC 154] (paras. 950, 1287, 1381, 1586, 1592).
273 [LNIND 1957 SC 93] .
1207] .
(2005) 10 SCC 110 [LNIND 2004 SC 1207] .
Dinesh Mishra
Page 116 of 117
1997 SC 488]: (1997) 3 SCC 261 [LNIND 1997 SC 488].
96 : (1991) 4 JT 361 .
9 Subs. by the Constitution (Fifty-fourth Amendment) Act, 1986, section 2, for clause (1) (w.e.f. 1 April 1986).
10 Evans v Gore, (1920) 253 US 245; Miles v Graham, (1925) 268 US 501.
11 O’Malley v Woodrough, (1939) 307 US 277.
12 See THE PRINCIPLE OF OFFICIAL INDEPENDENCE by ROBERT MACGREGOR DAWSON, 1922 at p 12. See also HOOD
PHILLIPS and JACKSON ON CONSTITUTIONAL AND ADMINISTRATIVE LAW, 8th Edn, 2001, chapter II, p 25, para 2.019.
13 See Administration of Justice Act 1973; Supreme Court Act, 1981 (Section 12).
14 See CONSTITUTIONAL AND ADMINISTRATIVE LAW by A.W. BRADLEY and K.D. EWING, 13th Edn, 2003, at p 371.
15 HOOD PHILLIPS (1987), pp 390-91.
16 See JUDGES’ RECOMMENDATION ACT, 1965.
17 See A.W. Bradley and K.D. Ewing, Constitutional and Administrative Law, 13th Edn, pp 370-371.
18 Cooper v CIT, (1907) 4 CLR 1.
19 Cf. Judges v A.G. for Saskaichewan, (1937) 53 TLR 464 (PC).
20 Vide C6, vol P, p 213.
21 See Justice Deoki Nandan Agarwale v UOI, AIR 1999 SC 1951 [LNIND 1999 SC 490]: (1999) 4 SCC 346 [LNIND 1999 SC 490]
: 1999 SCW 1635.
Dinesh Mishra
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22 Evans v Gore, (1920) 253 US 245 (253).
23 It may be mentioned, in this context, that instead of reducing the salary of Judges of the Supreme Court and the High Courts, the
Government of India had raised the scale of senior administrative of-ficers up to and above the salary fixed by the Constitution
itself for Supreme Court Judges. Even though, by raising the salary of other government servants, there is no direct contravention of
the Proviso to Article 125(2), the very object of guaranteeing the salary of the superior Judges by Articles 125 and 221 appears to
have been defeated by such increase by administrative action. [This anomaly has now been removed by the Constitution (54th)
Amendment Act, 1986.]
24 Vide C6, vol P, p 213.
25 Justice Deoki Nandan Agarwala v UOI, (1999) 4 SCC 346 [LNIND 1999 SC 490] : AIR 1999 SC 1951 [LNIND 1999 SC 490].
End of Document
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[Art 126] Appointment of acting Chief Justice-

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ministerially. 14
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Constitution,
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as judicial.34
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observed:
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State.74
Donaldson MR said:
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law”.
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are not courts.
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judicial function.
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invention.95
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function.
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(see below).
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held:
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court.
binding judgment.37
Dinesh Mishra
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Constitution.43
Settlement, 1700.
government.”44
Dinesh Mishra
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official conduct.
47-48)
individualism.
said:
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judge.
us........”
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Judiciary.58
Dinesh Mishra
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Scheme”.61
Dinesh Mishra
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the executive”.
Dinesh Mishra
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States that a
Dinesh Mishra
Page 33 of 112
enactment.
Constitution.
Dinesh Mishra
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today.
otiose”.
unfair.
Dinesh Mishra
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agency.
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judiciary.
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129, post.
Dinesh Mishra
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independence”.
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favour.
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202(3)(d)]58
Dinesh Mishra
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IV. Oath of office
Executive.
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judicial duties.73
Dinesh Mishra
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accordingly.
Dinesh Mishra
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goes on to say,
existing rule.

Dinesh Mishra
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mentality.83
Committed Judges
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before them.”96
Constitution, e.g.;
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and High Courts.—
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U.S.A. (A) U.S.A.—
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permitted by law.
Dinesh Mishra
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India (D) India.—
observed:
Dinesh Mishra
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purposes.
Dinesh Mishra
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fabric.
Dinesh Mishra
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Dinesh Mishra
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Dinesh Mishra
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Dinesh Mishra
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Courts.
Supreme Court.34
India (D) India.—
Dinesh Mishra
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certificate.
Dinesh Mishra
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Dinesh Mishra
Page 68 of 112
in the country.
Switzerland
Dinesh Mishra
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conditions:
Chambers.
Dinesh Mishra
Page 70 of 112
constitutionality.
Dinesh Mishra
Page 71 of 112
Dinesh Mishra
Page 72 of 112
yet promulgated.
Dinesh Mishra
Page 73 of 112
U.S.A. (A) U.S.A.—
wrote HAMILTON:43
Again,
Dinesh Mishra
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Dinesh Mishra
Page 75 of 112
Court. For:
Dinesh Mishra
Page 76 of 112
“justiciable’).
States.
Dinesh Mishra
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defence.55
Dinesh Mishra
Page 78 of 112
remarks that
Dinesh Mishra
Page 79 of 112
(C) Japan.—
Japan
Dinesh Mishra
Page 80 of 112
a treaty is
Dinesh Mishra
Page 81 of 112
Eire (D) Eire.—
Dinesh Mishra
Page 82 of 112
by Parliament.
As MAY observes:
Dinesh Mishra
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Parliament.67
India (G) India.—
not.68
Dinesh Mishra
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96,
Dinesh Mishra
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Dinesh Mishra
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impugned Act.85
Dinesh Mishra
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Dinesh Mishra
Page 88 of 112
Article 245 post).
Dinesh Mishra
Page 89 of 112
by the Legislature.
Federal Court.
Constitution.4
Dinesh Mishra
Page 90 of 112
provision.
also ascertain.
Dinesh Mishra
Page 91 of 112
Dinesh Mishra
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Sri Lanka.
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.
COMMENTARY Appointment of Acting Chief Justice
By reason of this provision, in case of any vacancy in the office of Chief Justice of the Supreme Court,
the next senior Judge does not become the Chief Justice, as a matter of course. It is for the President to
appoint and he is free to appoint any Judge of the court as the Acting Chief Justice.
But since the rule of seniority has come to be settled in the case of a permanent vacancy [since the
episode of A.N. RAY C.J.], it would be difficult to violate the rule in the case of a temporary vacancy.
Apart from two instances, appointment to the office of the Chief Justice of India have, by convention,
been of the senior most judge of the Supreme Court considered fit to hold the office and the proposal
is initiated in advance by the outgoing Chief Justice.26
Article 126 is meant to talk of a situation when the office of the Chief Justice of India falls vacant and
a successor to be appointed or when the Chief Justice is unable to perform the duties of his office due
to illness, etc. As an interim or temporary arrangement, the President may appoint one of the other
judges of the Supreme Court to perform the duties of the Chief Justice. The marginal heading to the
article refers to the “Appointment of Acting Chief Justice”; the text of the article speaks only of one of
the judges appointed by the President performing the duties of the office of the Chief Justice.
Dinesh Mishra
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7 Muskrat v U.S., (1911) 219 US 346 (356).
2003 SC 260] .

Dinesh Mishra
Page 94 of 112
1.015 at p 11.
260] .
[LNIND 1961 SC 206] .
Dinesh Mishra
Page 95 of 112
107 : 1958 SCR 1040 [LNIND 1957 SC 134] .
[LNIND 1977 SC 214] .
SCR 530 [LNIND 1970 SC 40] .
(2006) 2 SCC 1 [LNIND 2006 SC 1219] .
Dinesh Mishra
Page 96 of 112
SCR 206 [LNIND 1986 SC 307] .
40 [LNIND 2001 SC 2120] .
(2001) 4 SCC 558 [LNIND 2001 SC 806] .
Dinesh Mishra
Page 97 of 112
2002 SC 400] .
.

433 [LNIND 1964 SC 346] .
Dinesh Mishra
Page 98 of 112
SC 206] : (1961) 31 Com Cases 387 .
[LNIND 1962 SC 337] .
95 Scott v Scott, (1913) AC 417 .
359 .
Dinesh Mishra
Page 99 of 112
[LNIND 1978 SC 54] .
(1998) 3 JT 269 .
[LNIND 1978 SC 54] .
(1997) 9 JT 492 .
(1990) 2 SCR 110 [LNIND 1990 SC 177] .
2] : 1986 Cr LJ 320 .
24 1 B1 Com 69.
Dinesh Mishra
Page 100 of 112
(2005) 2 SC 8 .
672 .
(2005) 2 SC 8 .
[LNIND 2002 SC 249] (227).
p 164.
Dinesh Mishra
Page 101 of 112
(1977) 4 SCC 193 [LNIND 1977 SC 268] .
175-76.
SC 1118] (9).
(Supp-2) SCR 659.

(paras. 867, 877, 880, PATHAK, J.).
Dinesh Mishra
Page 102 of 112
SCC 87.
63 Golden v U.K., (1970) 1 EHRR 524 .
65 Re., Mc., (1985) AC 528 (HL).
SC 538] .
Dinesh Mishra
Page 103 of 112
11] .
85 VII CAD 853 and 1000.

165.
Dinesh Mishra
Page 104 of 112
AIR 1979 SC 478 [LNIND 1978 SC 661] .
[LNIND 1950 SC 22] : 1950 AIR 27 .
(1955) 349 US 133].


(1978) 1 SCR 423 [LNIND 1977 SC 268] .
Dinesh Mishra
Page 105 of 112
753] : (1997) 6 SCC 339 [LNIND 1997 SC 753] .
[LNIND 1997 SC 753] .
1994 SC 268 [LNIND 1993 SC 1231] : (1993) 4 SCC 441 .

Dinesh Mishra
Page 106 of 112
1 SCR 423 [LNIND 1977 SC 268] .
[LNIND 1998 SC 457] : (1998) 3 JT 269 .
(1988) 6 JT 571 : (1988) 7 Supreme 473 .
1998 SC 930] : (1998) 7 SCC 248 [LNIND 1998 SC 930] .
1169 [LNIND 1953 SC 59] .
8 JT 354 .
II 2nd Edn, pp 1935-1941.
Constitution.

60 M v Home Office, (1994) 1 AC 377 .
67 Re, C. (an Infant), (1939) Ch 363 .
Dinesh Mishra
Page 107 of 112

[LNIND 1978 SC 54] .
457] : (1998) 3 JT 269 .
J).
365 : 1981 Supp SCC 87].
Dinesh Mishra
Page 108 of 112
(1994) 2 SCC 303 [LNIND 1994 SC 160] .
1977 SC 268] .
SCR 659.
Dinesh Mishra
Page 109 of 112
63] .
41 See C6 vol A, pp 349-521.
Constitution Act.


47 supra.
Dinesh Mishra
Page 110 of 112

p 579.


(1971) 1 SCR 697 [LNIND 1970 SC 286] .
206 [LNIND 1986 SC 307] .
206 [LNIND 1986 SC 307] .
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
Dinesh Mishra
Page 111 of 112
SCR 347 [LNIND 1975 SC 432] .
[LNIND 1980 SC 257] .
[LNIND 1953 SC 70] .
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
206 [LNIND 1986 SC 307] .
273 [LNIND 1957 SC 93] .
SC 154] (paras. 950, 1287, 1381, 1586, 1592).
273 [LNIND 1957 SC 93] .
1207] .
(2005) 10 SCC 110 [LNIND 2004 SC 1207] .
Dinesh Mishra
Page 112 of 112
1997 SC 488]: (1997) 3 SCC 261 [LNIND 1997 SC 488].
96 : (1991) 4 JT 361 .
End of Document
Dinesh Mishra
[Art 127] Appointment of ad hoc Judges-

Dinesh Mishra
Page 2 of 112
Dinesh Mishra
Page 3 of 112
ministerially. 14
Dinesh Mishra
Page 4 of 112
Constitution,
Dinesh Mishra
Page 5 of 112

Dinesh Mishra
Page 6 of 112
as judicial.34
Dinesh Mishra
Page 7 of 112
Dinesh Mishra
Page 8 of 112
observed:
Dinesh Mishra
Page 9 of 112
Dinesh Mishra
Page 10 of 112
State.74
Donaldson MR said:
Dinesh Mishra
Page 11 of 112
law”.
Dinesh Mishra
Page 12 of 112
Dinesh Mishra
Page 13 of 112
are not courts.
Dinesh Mishra
Page 14 of 112
judicial function.
Dinesh Mishra
Page 15 of 112
invention.95
Dinesh Mishra
Page 16 of 112
Dinesh Mishra
Page 17 of 112
Dinesh Mishra
Page 18 of 112
function.
Dinesh Mishra
Page 19 of 112
(see below).
Dinesh Mishra
Page 20 of 112
held:
Dinesh Mishra
Page 21 of 112
court.
binding judgment.37
Dinesh Mishra
Page 22 of 112
Dinesh Mishra
Page 23 of 112
Dinesh Mishra
Page 24 of 112

Constitution.43
Settlement, 1700.
government.”44
Dinesh Mishra
Page 25 of 112
official conduct.
47-48)
individualism.
said:
Dinesh Mishra
Page 26 of 112
Dinesh Mishra
Page 27 of 112
judge.
us........”
Dinesh Mishra
Page 28 of 112
Dinesh Mishra
Page 29 of 112
Judiciary.58
Dinesh Mishra
Page 30 of 112
Scheme”.61
Dinesh Mishra
Page 31 of 112
the executive”.
Dinesh Mishra
Page 32 of 112
States that a
Dinesh Mishra
Page 33 of 112
enactment.
Constitution.
Dinesh Mishra
Page 34 of 112
today.
otiose”.
unfair.
Dinesh Mishra
Page 35 of 112
agency.
Dinesh Mishra
Page 36 of 112
Dinesh Mishra
Page 37 of 112
Dinesh Mishra
Page 38 of 112
judiciary.
Dinesh Mishra
Page 39 of 112
Dinesh Mishra
Page 40 of 112
129, post.
Dinesh Mishra
Page 41 of 112
independence”.
Dinesh Mishra
Page 42 of 112
Dinesh Mishra
Page 43 of 112
favour.
Dinesh Mishra
Page 44 of 112
Dinesh Mishra
Page 45 of 112
Dinesh Mishra
Page 46 of 112
202(3)(d)]58
Dinesh Mishra
Page 47 of 112
IV. Oath of office
Executive.
Dinesh Mishra
Page 48 of 112
Dinesh Mishra
Page 49 of 112
judicial duties.73
Dinesh Mishra
Page 50 of 112
accordingly.
Dinesh Mishra
Page 51 of 112
goes on to say,
existing rule.

Dinesh Mishra
Page 52 of 112
mentality.83
Committed Judges
Dinesh Mishra
Page 53 of 112

Dinesh Mishra
Page 54 of 112
before them.”96
Constitution, e.g.;
Dinesh Mishra
Page 55 of 112
Dinesh Mishra
Page 56 of 112
and High Courts.—
Dinesh Mishra
Page 57 of 112
U.S.A. (A) U.S.A.—
Dinesh Mishra
Page 58 of 112
permitted by law.
Dinesh Mishra
Page 59 of 112
India (D) India.—
observed:
Dinesh Mishra
Page 60 of 112
purposes.
Dinesh Mishra
Page 61 of 112
fabric.
Dinesh Mishra
Page 62 of 112
Dinesh Mishra
Page 63 of 112
Dinesh Mishra
Page 64 of 112
Dinesh Mishra
Page 65 of 112
Courts.
Supreme Court.34
India (D) India.—
Dinesh Mishra
Page 66 of 112
certificate.
Dinesh Mishra
Page 67 of 112
Dinesh Mishra
Page 68 of 112
in the country.
Switzerland
Dinesh Mishra
Page 69 of 112
conditions:
Chambers.
Dinesh Mishra
Page 70 of 112
constitutionality.
Dinesh Mishra
Page 71 of 112
Dinesh Mishra
Page 72 of 112
yet promulgated.
Dinesh Mishra
Page 73 of 112
U.S.A. (A) U.S.A.—
wrote HAMILTON:43
Again,
Dinesh Mishra
Page 74 of 112
Dinesh Mishra
Page 75 of 112
Court. For:
Dinesh Mishra
Page 76 of 112
“justiciable’).
States.
Dinesh Mishra
Page 77 of 112
defence.55
Dinesh Mishra
Page 78 of 112
remarks that
Dinesh Mishra
Page 79 of 112
(C) Japan.—
Japan
Dinesh Mishra
Page 80 of 112
a treaty is
Dinesh Mishra
Page 81 of 112
Eire (D) Eire.—
Dinesh Mishra
Page 82 of 112
by Parliament.
As MAY observes:
Dinesh Mishra
Page 83 of 112
Parliament.67
India (G) India.—
not.68
Dinesh Mishra
Page 84 of 112
96,
Dinesh Mishra
Page 85 of 112
Dinesh Mishra
Page 86 of 112
impugned Act.85
Dinesh Mishra
Page 87 of 112
Dinesh Mishra
Page 88 of 112
Article 245 post).
Dinesh Mishra
Page 89 of 112
by the Legislature.
Federal Court.
Constitution.4
Dinesh Mishra
Page 90 of 112
provision.
also ascertain.
Dinesh Mishra
Page 91 of 112
Dinesh Mishra
Page 92 of 112
Sri Lanka.
(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.
Clause (1): Ad hoc Judge
No such appointment has so far been made.
The Chief Justice may call a judge of a High Court to act as an ad hoc judge of the Supreme Court for
such period as may be necessary, if the quorum of the Supreme Court judge is insufficient to hold or
continue a session of the Court. The judge so appointed should be qualified to act as a judge of
Supreme Court. Before making such appointment, the Chief Justice of India has to consult the Chief
Justice of the High Court concerned and also obtain prior consent of the President (Article 127(1)). It
is the duty of the High Court judge so appointed in priority to other duties of his office, to attend the
sittings of the Supreme Court at such time and for such period for which his attendance is required
there. While so attending the Supreme Court, an ad hoc judge enjoys all the jurisdiction, power and
privileges of and discharges all such duties like any other Supreme Court judge. (Article 127(2)).
Dinesh Mishra
Page 93 of 112
In UOI v Sankalchand Himatlal Seth,27 Justice Krishna Iyer and Fazal Ali, J. have observed that the
word “request” as used in Article 127 does not show that the judge must give his consent before he
should be asked to work as an ad hoc judge. The word “request” has been used only as a matter of
courtesy as is shown in the language of the article that:
it shall be the duty of the judge who has been so designated to attend the sitting of the Supreme Court.

7 Muskrat v U.S., (1911) 219 US 346 (356).
Dinesh Mishra
Page 94 of 112
2003 SC 260] .

1.015 at p 11.
Dinesh Mishra
Page 95 of 112
260] .
[LNIND 1961 SC 206] .
107 : 1958 SCR 1040 [LNIND 1957 SC 134] .
[LNIND 1977 SC 214] .
SCR 530 [LNIND 1970 SC 40] .
Dinesh Mishra
Page 96 of 112
(2006) 2 SCC 1 [LNIND 2006 SC 1219] .
SCR 206 [LNIND 1986 SC 307] .
40 [LNIND 2001 SC 2120] .
Dinesh Mishra
Page 97 of 112
(2001) 4 SCC 558 [LNIND 2001 SC 806] .
2002 SC 400] .
.
Dinesh Mishra
Page 98 of 112

433 [LNIND 1964 SC 346] .
SC 206] : (1961) 31 Com Cases 387 .
[LNIND 1962 SC 337] .
95 Scott v Scott, (1913) AC 417 .
Dinesh Mishra
Page 99 of 112
359 .
[LNIND 1978 SC 54] .
(1998) 3 JT 269 .
[LNIND 1978 SC 54] .
(1997) 9 JT 492 .
Dinesh Mishra
Page 100 of 112
(1990) 2 SCR 110 [LNIND 1990 SC 177] .
2] : 1986 Cr LJ 320 .
24 1 B1 Com 69.
(2005) 2 SC 8 .
672 .
(2005) 2 SC 8 .
[LNIND 2002 SC 249] (227).
Dinesh Mishra
Page 101 of 112
p 164.
(1977) 4 SCC 193 [LNIND 1977 SC 268] .
175-76.
SC 1118] (9).
(Supp-2) SCR 659.
Dinesh Mishra
Page 102 of 112

(paras. 867, 877, 880, PATHAK, J.).
SCC 87.
63 Golden v U.K., (1970) 1 EHRR 524 .
65 Re., Mc., (1985) AC 528 (HL).
Dinesh Mishra
Page 103 of 112
SC 538] .
11] .
85 VII CAD 853 and 1000.

165.
Dinesh Mishra
Page 104 of 112
AIR 1979 SC 478 [LNIND 1978 SC 661] .
[LNIND 1950 SC 22] : 1950 AIR 27 .
(1955) 349 US 133].

Dinesh Mishra
Page 105 of 112

(1978) 1 SCR 423 [LNIND 1977 SC 268] .
753] : (1997) 6 SCC 339 [LNIND 1997 SC 753] .
[LNIND 1997 SC 753] .
Dinesh Mishra
Page 106 of 112
1994 SC 268 [LNIND 1993 SC 1231] : (1993) 4 SCC 441 .

1 SCR 423 [LNIND 1977 SC 268] .
[LNIND 1998 SC 457] : (1998) 3 JT 269 .
(1988) 6 JT 571 : (1988) 7 Supreme 473 .
1998 SC 930] : (1998) 7 SCC 248 [LNIND 1998 SC 930] .
1169 [LNIND 1953 SC 59] .
8 JT 354 .
II 2nd Edn, pp 1935-1941.
Constitution.

60 M v Home Office, (1994) 1 AC 377 .
Dinesh Mishra
Page 107 of 112

67 Re, C. (an Infant), (1939) Ch 363 .

[LNIND 1978 SC 54] .
457] : (1998) 3 JT 269 .
J).
Dinesh Mishra
Page 108 of 112
365 : 1981 Supp SCC 87].
(1994) 2 SCC 303 [LNIND 1994 SC 160] .
1977 SC 268] .
SCR 659.
Dinesh Mishra
Page 109 of 112
63] .
41 See C6 vol A, pp 349-521.
Constitution Act.

Dinesh Mishra
Page 110 of 112

47 supra.

p 579.


(1971) 1 SCR 697 [LNIND 1970 SC 286] .
206 [LNIND 1986 SC 307] .
206 [LNIND 1986 SC 307] .
Dinesh Mishra
Page 111 of 112

(1971) 1 SCR 697 [LNIND 1970 SC 286] .
SCR 347 [LNIND 1975 SC 432] .
[LNIND 1980 SC 257] .
[LNIND 1953 SC 70] .
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
206 [LNIND 1986 SC 307] .
273 [LNIND 1957 SC 93] .
SC 154] (paras. 950, 1287, 1381, 1586, 1592).
273 [LNIND 1957 SC 93] .
Dinesh Mishra
Page 112 of 112
1207] .
(2005) 10 SCC 110 [LNIND 2004 SC 1207] .
1997 SC 488]: (1997) 3 SCC 261 [LNIND 1997 SC 488].
96 : (1991) 4 JT 361 .
1 SCR 423 [LNIND 1977 SC 268] .
End of Document
Dinesh Mishra
[Art 128] Attendance of retired Judges at sittings of the Supreme Court-

Dinesh Mishra
Page 2 of 113
Dinesh Mishra
Page 3 of 113
ministerially. 14
Dinesh Mishra
Page 4 of 113
Constitution,
Dinesh Mishra
Page 5 of 113

Dinesh Mishra
Page 6 of 113
as judicial.34
Dinesh Mishra
Page 7 of 113
Dinesh Mishra
Page 8 of 113
observed:
Dinesh Mishra
Page 9 of 113
Dinesh Mishra
Page 10 of 113
State.74
Donaldson MR said:
Dinesh Mishra
Page 11 of 113
law”.
Dinesh Mishra
Page 12 of 113
Dinesh Mishra
Page 13 of 113
are not courts.
Dinesh Mishra
Page 14 of 113
judicial function.
Dinesh Mishra
Page 15 of 113
invention.95
Dinesh Mishra
Page 16 of 113
Dinesh Mishra
Page 17 of 113
Dinesh Mishra
Page 18 of 113
function.
Dinesh Mishra
Page 19 of 113
(see below).
Dinesh Mishra
Page 20 of 113
held:
Dinesh Mishra
Page 21 of 113
court.
binding judgment.37
Dinesh Mishra
Page 22 of 113
Dinesh Mishra
Page 23 of 113
Dinesh Mishra
Page 24 of 113

Constitution.43
Settlement, 1700.
government.”44
Dinesh Mishra
Page 25 of 113
official conduct.
47-48)
individualism.
said:
Dinesh Mishra
Page 26 of 113
Dinesh Mishra
Page 27 of 113
judge.
us........”
Dinesh Mishra
Page 28 of 113
Dinesh Mishra
Page 29 of 113
Judiciary.58
Dinesh Mishra
Page 30 of 113
Scheme”.61
Dinesh Mishra
Page 31 of 113
the executive”.
Dinesh Mishra
Page 32 of 113
States that a
Dinesh Mishra
Page 33 of 113
enactment.
Constitution.
Dinesh Mishra
Page 34 of 113
today.
otiose”.
unfair.
Dinesh Mishra
Page 35 of 113
agency.
Dinesh Mishra
Page 36 of 113
Dinesh Mishra
Page 37 of 113
Dinesh Mishra
Page 38 of 113
judiciary.
Dinesh Mishra
Page 39 of 113
Dinesh Mishra
Page 40 of 113
129, post.
Dinesh Mishra
Page 41 of 113
independence”.
Dinesh Mishra
Page 42 of 113
Dinesh Mishra
Page 43 of 113
favour.
Dinesh Mishra
Page 44 of 113
Dinesh Mishra
Page 45 of 113
Dinesh Mishra
Page 46 of 113
202(3)(d)]58
Dinesh Mishra
Page 47 of 113
IV. Oath of office
Executive.
Dinesh Mishra
Page 48 of 113
Dinesh Mishra
Page 49 of 113
judicial duties.73
Dinesh Mishra
Page 50 of 113
accordingly.
Dinesh Mishra
Page 51 of 113
goes on to say,
existing rule.

Dinesh Mishra
Page 52 of 113
mentality.83
Committed Judges
Dinesh Mishra
Page 53 of 113

Dinesh Mishra
Page 54 of 113
before them.”96
Constitution, e.g.;
Dinesh Mishra
Page 55 of 113
Dinesh Mishra
Page 56 of 113
and High Courts.—
Dinesh Mishra
Page 57 of 113
U.S.A. (A) U.S.A.—
Dinesh Mishra
Page 58 of 113
permitted by law.
Dinesh Mishra
Page 59 of 113
India (D) India.—
observed:
Dinesh Mishra
Page 60 of 113
purposes.
Dinesh Mishra
Page 61 of 113
fabric.
Dinesh Mishra
Page 62 of 113
Dinesh Mishra
Page 63 of 113
Dinesh Mishra
Page 64 of 113
Dinesh Mishra
Page 65 of 113
Courts.
Supreme Court.34
India (D) India.—
Dinesh Mishra
Page 66 of 113
certificate.
Dinesh Mishra
Page 67 of 113
Dinesh Mishra
Page 68 of 113
in the country.
Switzerland
Dinesh Mishra
Page 69 of 113
conditions:
Chambers.
Dinesh Mishra
Page 70 of 113
constitutionality.
Dinesh Mishra
Page 71 of 113
Dinesh Mishra
Page 72 of 113
yet promulgated.
Dinesh Mishra
Page 73 of 113
U.S.A. (A) U.S.A.—
wrote HAMILTON:43
Again,
Dinesh Mishra
Page 74 of 113
Dinesh Mishra
Page 75 of 113
Court. For:
Dinesh Mishra
Page 76 of 113
“justiciable’).
States.
Dinesh Mishra
Page 77 of 113
defence.55
Dinesh Mishra
Page 78 of 113
remarks that
Dinesh Mishra
Page 79 of 113
(C) Japan.—
Japan
Dinesh Mishra
Page 80 of 113
a treaty is
Dinesh Mishra
Page 81 of 113
Eire (D) Eire.—
Dinesh Mishra
Page 82 of 113
by Parliament.
As MAY observes:
Dinesh Mishra
Page 83 of 113
Parliament.67
India (G) India.—
not.68
Dinesh Mishra
Page 84 of 113
96,
Dinesh Mishra
Page 85 of 113
Dinesh Mishra
Page 86 of 113
impugned Act.85
Dinesh Mishra
Page 87 of 113
Dinesh Mishra
Page 88 of 113
Article 245 post).
Dinesh Mishra
Page 89 of 113
by the Legislature.
Federal Court.
Constitution.4
Dinesh Mishra
Page 90 of 113
provision.
also ascertain.
Dinesh Mishra
Page 91 of 113
Dinesh Mishra
Page 92 of 113
Sri Lanka.
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 of the Federal Court28 [or 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.
[Art 128.1] Articles 127-28: Ad hoc Judges and employment of retired Judges
Article 127 appears to be based on section 30 of the Canadian Supreme Court Act and Article 128
follows sec. 10 of the (English) Administration of Justice Act, 1970.
Under both the Articles, the Chief Justice of India has the Power to invite a person [other than a
person appointed a Judge under Article 124(2)] to act as a Judge of the Supreme Court, for a
temporary period. Under both Articles, however, the previous consent of the President must be
obtained by the Chief Justice. Article 127 enables the Chief Justice to invite a sitting Judge of a High
Court to act as an ad hoc Judge of the Supreme Court (to decide any particular case or cases). He shall
remain a High Court Judge and his duties at the Supreme Court may be additional, but during his
attendance at the Supreme Court, he shall have all the jurisdiction, powers and privileges of a Supreme
Court Judge.
Dinesh Mishra
Page 93 of 113
Article 128 makes similar provisions in respect of a retired Judge of the Supreme Court29 or of a High
Court. But while absence of a quorum of the permanent Judges of the Supreme Court is a condition
precedent for the exercise by the Chief Justice of the power under Article 127, there is no such
condition precedent under Article 128.
[Art 128.2] ‘Quorum’
See Article 145, clauses (2)-(3), post.
[Art 128.3] ‘Shall not otherwise be deemed to be a Judge of the Supreme Court’
Though in Article 127(1), a different expression is used, namely, that the ad hoc Judge “shall
discharge the duties of a Judge of the Supreme Court”, the status of an ad hoc Judge under Articles
127(1) and 128 appears to be the same. The meaning of the words “discharge the duties” may be
gathered from Article 65, where both the expressions “act as” and “discharge the functions of” are
used.
The result is that an ad hoc Judge, whether appointed under Article 127(1) or under Article 128, shall
discharge the functions of a Judge of the Supreme Court, but shall not be regarded as a Judge of the
Supreme Court, within the meaning of Article 124. An ad hoc Judge may, therefore, be appointed in
addition to the maximum number of Judges prescribed by Article 124(1). A Judge so appointed cannot
also claim any seniority amongst the Judges, by reason of his age or otherwise.
But there is some difference as regards conditions of service. As regards emoluments, Article 127 is
silent, It seems, therefore, that a High Court Judge, when appointed an ad hoc Judge of the Supreme
Court, shall continue to have the emoluments of a High Court Judge. Article 128, on the other hand,
says that a retired Supreme Court Judge, when appointed “to act as Judge of the Supreme Court”, shall
be entitled to “such allowances as the President may by order determine.” This means that such ad hoc
Judge is not entitled to the salary of a Supreme Court Judge by reason of the appointment. In practice,
the amount of pension enjoyed by the retired Judges is taken into account in fixing his “allowances”
for acting as an ad hoc Judge.
Though he may have all the jurisdiction, powers and privileges of a Supreme Court Judge, a retired
Judge appointed under Article 128 shall not be reckoned as a “Judge of the Supreme Court” for other
purposes under the Constitution, e.g., Article 124(1).
It is questionable whether an appointee under Article 128 shall have the same dignity and
independence as that of regular appointees of the Supreme Court.
Dinesh Mishra
Page 94 of 113

7 Muskrat v U.S., (1911) 219 US 346 (356).
2003 SC 260] .

Dinesh Mishra
Page 95 of 113
1.015 at p 11.
260] .
[LNIND 1961 SC 206] .
Dinesh Mishra
Page 96 of 113
107 : 1958 SCR 1040 [LNIND 1957 SC 134] .
[LNIND 1977 SC 214] .
SCR 530 [LNIND 1970 SC 40] .
(2006) 2 SCC 1 [LNIND 2006 SC 1219] .
Dinesh Mishra
Page 97 of 113
SCR 206 [LNIND 1986 SC 307] .
40 [LNIND 2001 SC 2120] .
(2001) 4 SCC 558 [LNIND 2001 SC 806] .
Dinesh Mishra
Page 98 of 113
2002 SC 400] .
.

433 [LNIND 1964 SC 346] .
Dinesh Mishra
Page 99 of 113
SC 206] : (1961) 31 Com Cases 387 .
[LNIND 1962 SC 337] .
95 Scott v Scott, (1913) AC 417 .
359 .
Dinesh Mishra
Page 100 of 113
[LNIND 1978 SC 54] .
(1998) 3 JT 269 .
[LNIND 1978 SC 54] .
(1997) 9 JT 492 .
(1990) 2 SCR 110 [LNIND 1990 SC 177] .
2] : 1986 Cr LJ 320 .
24 1 B1 Com 69.
Dinesh Mishra
Page 101 of 113
(2005) 2 SC 8 .
672 .
(2005) 2 SC 8 .
[LNIND 2002 SC 249] (227).
p 164.
Dinesh Mishra
Page 102 of 113
(1977) 4 SCC 193 [LNIND 1977 SC 268] .
175-76.
SC 1118] (9).
(Supp-2) SCR 659.

(paras. 867, 877, 880, PATHAK, J.).
Dinesh Mishra
Page 103 of 113
SCC 87.
63 Golden v U.K., (1970) 1 EHRR 524 .
65 Re., Mc., (1985) AC 528 (HL).
SC 538] .
Dinesh Mishra
Page 104 of 113
11] .
85 VII CAD 853 and 1000.

165.
Dinesh Mishra
Page 105 of 113
AIR 1979 SC 478 [LNIND 1978 SC 661] .
[LNIND 1950 SC 22] : 1950 AIR 27 .
(1955) 349 US 133].


(1978) 1 SCR 423 [LNIND 1977 SC 268] .
Dinesh Mishra
Page 106 of 113
753] : (1997) 6 SCC 339 [LNIND 1997 SC 753] .
[LNIND 1997 SC 753] .
1994 SC 268 [LNIND 1993 SC 1231] : (1993) 4 SCC 441 .

Dinesh Mishra
Page 107 of 113
1 SCR 423 [LNIND 1977 SC 268] .
[LNIND 1998 SC 457] : (1998) 3 JT 269 .
(1988) 6 JT 571 : (1988) 7 Supreme 473 .
1998 SC 930] : (1998) 7 SCC 248 [LNIND 1998 SC 930] .
1169 [LNIND 1953 SC 59] .
8 JT 354 .
II 2nd Edn, pp 1935-1941.
Constitution.

60 M v Home Office, (1994) 1 AC 377 .
67 Re, C. (an Infant), (1939) Ch 363 .
Dinesh Mishra
Page 108 of 113

[LNIND 1978 SC 54] .
457] : (1998) 3 JT 269 .
J).
365 : 1981 Supp SCC 87].
Dinesh Mishra
Page 109 of 113
(1994) 2 SCC 303 [LNIND 1994 SC 160] .
1977 SC 268] .
SCR 659.
Dinesh Mishra
Page 110 of 113
63] .
41 See C6 vol A, pp 349-521.
Constitution Act.


47 supra.
Dinesh Mishra
Page 111 of 113

p 579.


(1971) 1 SCR 697 [LNIND 1970 SC 286] .
206 [LNIND 1986 SC 307] .
206 [LNIND 1986 SC 307] .
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
Dinesh Mishra
Page 112 of 113
SCR 347 [LNIND 1975 SC 432] .
[LNIND 1980 SC 257] .
[LNIND 1953 SC 70] .
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
206 [LNIND 1986 SC 307] .
273 [LNIND 1957 SC 93] .
SC 154] (paras. 950, 1287, 1381, 1586, 1592).
273 [LNIND 1957 SC 93] .
1207] .
(2005) 10 SCC 110 [LNIND 2004 SC 1207] .
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1997 SC 488]: (1997) 3 SCC 261 [LNIND 1997 SC 488].
96 : (1991) 4 JT 361 .
28 Inserted by the Constitution (Fifteenth Amendment) Act, 1963, section 3.

29 Instances of such appointment are that of SRI CHANDRASEKHARA IYER, J., (twice) in 1955 and that of SRI
VENKATARAMA AYYAR, J., (twice) in 1961-62; G.K. MITTER, J.
End of Document
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[Art 129] Supreme Court to be a Court of record-

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ministerially. 14
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Constitution,
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as judicial.34
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observed:
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State.74
Donaldson MR said:
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law”.
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are not courts.
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judicial function.
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invention.95
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function.
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(see below).
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held:
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court.
binding judgment.37
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Constitution.43
Settlement, 1700.
government.”44
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official conduct.
47-48)
individualism.
said:
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judge.
us........”
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Judiciary.58
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Scheme”.61
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the executive”.
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States that a
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enactment.
Constitution.
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today.
otiose”.
unfair.
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agency.
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judiciary.
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129, post.
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independence”.
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favour.
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202(3)(d)]58
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IV. Oath of office
Executive.
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judicial duties.73
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accordingly.
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goes on to say,
existing rule.

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mentality.83
Committed Judges
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before them.”96
Constitution, e.g.;
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and High Courts.—
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U.S.A. (A) U.S.A.—
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permitted by law.
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India (D) India.—
observed:
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purposes.
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fabric.
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Courts.
Supreme Court.34
India (D) India.—
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certificate.
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in the country.
Switzerland
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conditions:
Chambers.
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constitutionality.
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yet promulgated.
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U.S.A. (A) U.S.A.—
wrote HAMILTON:43
Again,
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Court. For:
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“justiciable’).
States.
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defence.55
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remarks that
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(C) Japan.—
Japan
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a treaty is
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Eire (D) Eire.—
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by Parliament.
As MAY observes:
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Parliament.67
India (G) India.—
not.68
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96,
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impugned Act.85
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Article 245 post).
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by the Legislature.
Federal Court.
Constitution.4
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provision.
also ascertain.
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Sri Lanka.
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.
[Art 129.1] OTHER CONSTITUTIONS (A) England.—
A court of Record is a court whose acts and proceedings are enrolled for a perpetual memorial and
testimony. These records are of such high authority that their truth cannot be questioned in any court,
though the court of record itself may amend clerical slips and errors. A Court of Record has the power
to fine and imprison for contempt of its authority, so that any court possessing this power may be
called a court of record.30
(B) Government of India Act, 1935.—
Section 203 of the Act was—
The Federal Court shall be a court of record31
[Art 129.2] INDIA [Art 129.2.1] Article 129: Supreme Court—A Court of Record
Both the Supreme Court as well as the High Courts are Courts of Record. The Constitution does not
define “Court of Record”, but this expression is well recognised in judicial world. A Court of Record
is a “court whereof the acts and judicial proceedings are enrolled for a perpetual memorial and
testimony”32 and has power of summarily punishing contempt of itself as well as of subordinate
courts. Unlike a court of limited jurisdiction, a superior Court of Record is entitled to determine the
question about its own jurisdiction.33 A Court of Record has been defined as “a court whereof the acts
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and judicial proceedings are enrolled for a perpetual memory and testimony and which has power to
fine and imprison for contempt of its authority.34 In Words and Phrases35 Court of Record is defined as
“Court of Record is a court where acts and judicial proceedings are enrolled in parchment for a
perpetual memorial and testimony which rolls are called the “record” of the court and are of such high
and super eminent authority that their truth is not to be questioned”. In HALSBURY’S LAWS OF
ENGLAND,36 it is stated thus: “Another manner of division is into Courts of Record and courts not of
record. Certain courts are expressly declared by statute to be Courts of Record. In the case of courts
not expressly declared to be Courts of Record, the answer to the question whether a court is a Court of
Record seems to depend in general upon whether it has power to fine or imprison, by statute or
otherwise, for contempt of itself or other substantive offences; if it has such power, it seems that it is a
Court of Record. The proceedings of a Court of Record preserved in its archives are called records and
are conclusive evidence of that which is recorded therein”. In WHARTON’S LAW LEXICON, it is
stated thus: “Courts are either of record where their acts and judicial proceedings are enrolled for a
perpetual memorial and testimony and they have power to fine and imprison; or not of record being
courts of inferior dignity, and in a less proper sense the King’s Court—and these are not entrusted by
law with any power to fine or imprison the subject of the realm, unless by the express provision of
some act of Parliament. These proceedings are not enrolled or recorded.”
In Corpus Juris37 a “Court of Record” is defined as follows: “A Court of Record has been defined as a
court where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and
testimony and which has power to fine and imprison for contempt of its own authority: a court is
bound to keep a record of its proceedings and may fine or imprison; a court whose proceedings are
enrolled for a perpetual memorial and testimony which Rolls are called the Records of the Court and
are of such high and super-eminent authority that their truth is not to be called in question; a judicial
organised tribunal having attributes and exercising functions independently of the person of the
Magistrate-designated generally to hold it and proceeding according to the course of the Common
Law; and a court having a seal; courts may be designated by statute as Courts of Record. Courts not of
record are those of inferior dignity which have no power to fine or imprison and in which proceedings
are not enrolled or recorded and all courts which do not come within the definition of a Court of
Record are courts not of record.”
When Article 129 was moved in the Constituent Assembly for its acceptance, Dr. Ambedkar said: “A
Court of Record is a court the records of which are admitted to be of evidentiary value and they are
not to be questioned when they are produced before any court. That is the meaning of “Court of
Record”. Then, the second part of Article 108 (now Article 129) says that the court shall have the
power to punish contempt of itself. As a matter of fact, once you make a Court of Record by statute,
the power to punish for contempt necessarily follows from the position. But it was felt that in view of
the fact that in England this power is largely derived from the Common Law, and we have no such
thing as Common Law in this country, we feel it better to state the whole position in the statute
itself.38
The cornerstone of the Contempt law is the accommodation of two constitutional values – the right to
free speech and the right to independent justice. The ignition of contempt action should be substantial
and mala fide interference with fearless judicial action, not fair comment or trivial reflection on the
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judicial process and personnel.39 The power of the Supreme Court and the High Courts being the
Courts of Record as embodied under Articles 129 and 215 respectively, cannot be restricted and
trammelled by any ordinary legislation including the provisions of the Contempt of Court Act. Their
inherent power is elastic, unfettered and not subject to any limit. The power conferred upon the
Supreme Court and the High Court being the Courts of Record under Articles 129 and 215
respectively of the Constitution, is an inherent power and the jurisdiction vested is a special one not
derived from any other statute, but derived only from Articles 129 and 215 of the Constitution of India
and, therefore, the constitutionally vested right cannot be either abridged or abrogated or cut down.
Nor can they be controlled or limited by any statute or by any provision of Code of Criminal
Procedure or any Rules. The caution that has to be observed in exercising this inherent power by
summary procedure is that the power should be used sparingly, that the procedure to be followed
should be fair and that the contemner should be made aware of the charges against him and given a
reasonable opportunity to defend himself.40 The contempt of court is a special jurisdiction to be
exercised sparingly and with caution, whenever an act adversely affects the administration of justice
or tends to impede its course or tends to shake public confidence in the judicial institution. This
jurisdiction may also be exercised when the act complained of adversely affects the majesty of law or
dignity of court. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the court
of law. It is an unusual type of jurisdiction combining the jury, the judge and the hangman and it is so
because the court is not adjudicating upon any claim between litigating parties. This jurisdiction is not
exercised to protect the dignity of an individual judge, but to protect the administration of justice
being maligned. In the general interest of the community, it is imperative that the authority of court
should not be imperiled and there should be no unjustifiable interference in the administration of
justice. It is a matter between the court and contemner and third parties cannot intervene. It is
exercised in a summary manner in the aid of the administration of justice, the majesty of law and the
dignity of court. No such act can be permitted which may have the tendency to shake the public
confidence in the fairness and impartiality in the administration of justice.41WHARTON’S LAW
LEXICON explains a Court of Record as:
Record, Court of judicial acts and proceedings are enrolled on parchment for a perpetual memorial and testimony, which rolls are
called the Records of Court and are of such high and superintending authority that their authority and their truth is not to be called
in question. Courts of Record are of two classes – superior and inferior. Superior Courts of Record include House of Lords, the
Judicial Committee, the Court of Appeal, the High Court and few others. The Mayor’s Court of London, the Country Court,
Coroner’s Court and other inferior Court of Record of which the Country Courts are most important. Every superior Court of
Record has authority to impose fine and imprisonment for contempt of its authority, an inferior Court of Record can only commit
for contempt committed in open Court “in facie curiae”.
A Court of Record “is a Court whereof the acts and judicial proceedings are enrolled for a perpetual
memorial and testimony” and has power of summarily punishing contempt of itself as well as
subordinate courts.42 A Court of Record is a court, the records of which are admitted to be of
evidentiary value, and are not to be questioned when produced before any court. The power that Court
of Record enjoys to punish for contempt is a part of their inherent jurisdiction and is essential to
enable the court to administer justice according to law in regular, orderly and effective manner and to
uphold the majesty of law and prevent interference in the due administration of justice.43 The Supreme
Court has consistently held that the Supreme Court has power under Article 129 to punish for
contempt not merely of itself, but also the contempt of all Courts and Tribunals and subordinates to it.
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Therefore, the Supreme Court has jurisdiction to punish for contempt of ITAT.44 The contempt
jurisdiction is to uphold the majesty and dignity of law courts and the image of such majesty in the
minds of the public cannot be allowed to be distorted. Any action taken on contempt or punishment
enforced is aimed at protection of freedom of individual and orderly and equal administration of
justice and not for the purpose of providing immunity from criticism of judge.45 Contempt matter is
essentially between the contemner and the court. On the basis of record and attendant circumstances,
the court has to decide whether there is any contempt or not. Since the contempt was on the face of the
court, the fact that the respondent-State has not filed affidavit in reply do not dilute the contempt
committed by the appellant, the contemner cannot escape the liability.46 In that case, the order of the
High Court reflected while addressing judges of the High Court was most objectionable and
contumacious. The appellant shouted at the judges. He questioned the authority of judges to ask
question and made wrong statement before the court. He also tried to overawe the court by producing
a Cabinet Minister’s letter addressed to the Chief Minister recommending his name. He did not show
any remorse. He did not tender any apology but continued to be rude behaviour of shouting at the
court and baiting the court. He challenged the majesty of the High Court by showing utter disrespect
to it. Therefore, appellant was held guilty of having committed contempt on the face of the High
Court. The court also held that when the contempt was committed on the face of the High Court or the
Supreme Court to scandalise or humiliate the judges and has also filed false affidavit in the court, it
was held that the appellant has committed offence of criminal contempt.
The jurisdiction of the Supreme Court under Article 129 of the Constitution is independent of the
Contempt of Court Act and the power conferred under Article 129 cannot be denuded, restricted or
limited by the Contempt of Courts Act. Therefore, lack of proper compliance of the provisions of the
Contempt of Courts Act such as absence of consent of Advocate General would not deter or take away
the constitutional power conferred on court under Article 129 of the Constitution to examine whether
there has been any attempt by anybody to interfere with the investigation which is being monitored by
the court.47
As a Court of Record, the Supreme Court has power to punish not merely for contempt itself, but also
for contempt of all courts and tribunals subordinate to it, like the contempt of Income Tax Appellate
Tribunal.48
In a case where a single Judge issued a show cause notice to the Chief Justice for transferring a part-
heard case, it was held that section 16(1) of the Contempt of Courts Act will not apply to Judges of
Courts of Record. Apart from the same, the order of Chief Justice was an order legally made in
exercise of his powers.49
This Article explains that the Supreme Court shall have the power, inter alia to punish for contempt of
itself.
[Art 129.2.2] The scope of Contempt of Court and its nature
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Courts, if they are to serve their purpose of administering justice, must have the power to secure
obedience to their judgments, to prevent interference with their proceedings and to ensure a fair trial to
parties who resort to them to vindicate their rights. It is in public interest in seeking these ends
achieved that is served by the law relating to contempt of court.50 The phrase “Contempt of Court” has
been described as “inaccurate and misleading”, particularly because it suggests that the purpose of the
law is to protect the dignity of the court.51 It is justice itself that is flouted by contempt of court, not
the individual or judge who is attempting to administer it.52 It was observed that “It is high time… that
we re-arranged our law so that the ancient but misleading terms of “Contempt of Court” disappeared
from the law’s vocabulary.”53 According to Hood Phillips, an acceptable alternative has not yet been
suggested.54
Contempt of Court, broadly speaking, takes two forms. Civil contempt is the failure to obey the order
of a superior court of record which prescribes certain conduct upon a party to a civil action. A civil
judge may commit to prison anyone who disregards an order addressed to him or her. In this way,
decrees for specific performance and injunction as well as writ of habeas corpus and other judicial
orders may be enforced by the High Court. The power of the Court to enforce their orders against
litigants is not available against the Crown, but ministers of the Crown and civil servants are liable to
be proceeded against contempt of court in respect of acts or omission by them personally and it is no
defence that what would otherwise constitute contempt of court was committed in the discharge or
purported discharge of official duties.55 Although civil contempt is not a criminal offence or a
misdemeanor,56 the court may nevertheless commit a wrongdoer to prison for fixed period,57 may fine
him or her or may order his or her property to be sequestrated. The Official Solicitor to the Supreme
Court is required to review all cases of persons committed to prison for contempt of Court and may
intervene to secure their release.58 The Crown may not grant a pardon in cases of civil contempt since
this would amount to intervening in litigation between parties.
Conduct which is calculated to interfere with the due administration of justice or to bring the court to
disrepute gives rise to proceedings which are in the nature of criminal proceedings, both civil and
criminal court may exercise jurisdiction. Although criminal contempt takes various forms and
although it is necessary to protect the working of the court, nevertheless judges should seek to ensure
in the words of Lord President Normand
that the greatest restraint and discrimination should be used by the court in dealing with Contempt of Court, lest a process, the
purpose of which is to prevent interference with the administration of justice should degenerate into an oppressive or vindictive
abuse of the court’s powers.59
The need for restraint is all the greater since one of the consequences of contempt of court is to
restrain freedom of expression. But not all judges are sanguine with concern being expressed in one
case that the Contempt of Courts Act, 1981 may have tilted the balance too much in favour of freedom
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of expression
Parliament may have redrawn the boundary at a point which would not have been chosen by those people looking at the matter
primarily from the standpoint of administration of justice.60
In order for any legal system to be maintained and to flourish, rules must be enforced to protect the status, authority, integrity and
fairness of the courts. A citizen’s right to fair trial depends upon the existence of mechanisms which operate in various ways; to
protect the courts, judges and juries from verbal or physical attack; to prevent the disclosure or publication of material, truthful or
otherwise; which might prejudice a court case or otherwise harm the parties; to allow criminal and civil cases to proceed through
court in the manner prescribed by law, to protect the reputation of the legal system, its components and its personnel from being
brought into disrepute. It is in public interest that these mechanisms should exist. Therefore, there exists criminal and civil offences
of contempt of court which attempt to support such legitimate interests as the administration of justice, the right to privacy and the
right to a fair trial and the sanctions of imprisonment or fines serve as a deterrent.61
The functions of the law of contempt include protecting the dignity of the court and generally
safeguarding the administration of justice.62
Judiciary is guardian of the rule of law. If the judiciary is to perform its duties and functions
effectively, the dignity and authority of courts have to be respected and protected at all costs. It is for
this purpose that the courts are entrusted with the extraordinary power of punishing those who indulge
in acts, whether inside or outside the courts, which tend to undermine their authority and bring them in
disrepute and disrespect by scandalising them and obstructing them from discharging their duties
without fear or favour.63
There can be no doubt that the purpose of contempt jurisdiction is to uphold the majesty and dignity of
law courts and their image in the minds of the public and that this is in no way whittled down. If by
contumacious words or writings the common man is led to lose his respect for the Judge acting in the
discharge of his judicial duties, then the confidence reposed in Courts of Justice is rudely shaken and
the offender need be punished. In essence, the law of contempt is the protector of seat of justice more
than the person of the Judge sitting in that seat. The law of contempt has been enacted to secure public
respect and confidence in the judicial process. If such confidence is shaken or broken, the confidence
of the common man in the institution of judiciary and democratic set up is likely to be eroded which, if
not checked, is sure to be disastrous for the society itself.64
A person who has moved to initiate contempt, has no right to withdraw the petition, since that is a
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matter between the court and the contemner. While considering the request of withdrawal, the court
would generally be guided by the broad facts of the case and more particularly whether respect the
judicial process would be enhanced or dwindled either by granting or refusing to grant the request.65
The Supreme Court has ruled that under Article 129, it has jurisdiction to take cognizance of contempt
of the Income Tax Appellate Tribunal which performs judicial function and is subordinate to the High
Court. The Tribunal has Benches in different parts of the country and is thus a national tribunal and its
functioning affects the entire country. Appeals from the Tribunal lie ultimately to Supreme Court. The
court can take suo moto cognizance of the contempt of Tribunal. In the instant case, Secretary,
Ministry of Law wrote a letter to the President of the Tribunal adversely commenting on a Tribunal’s
decision in a specific case characterising it as “judicial impropriety of the highest order”. The
Secretary was held guilty of committing contempt of the Tribunal as he has questioned the bona fide
of the Members of the Tribunal in deciding a specific case and asked them to explain judicial order
which they have passed. Thus, he unfairly tampered with the judicial process and interfered with the
judicial making.66 The court characterised the letter “as an attempt to affect their (tribunal members)
“decision-making” and a “clear threat to their independent functioning”. The letter also tends to
undermine confidence in the judicial functioning of the Tribunal. The decision will go a long way
towards ensuring the independence of the tribunal. The Executive’s responsibility is only
administrative supervision and control, but not questioning specific tribunal’s decision as such.
Two kinds of contempt are: (1) Civil Contempt, and (2) Criminal Contempt.
Civil contempt of court is committed by breaching orders of the court or undertakings made to court,
for example, by breaking the terms of an order of injunction which has been obtained from a civil
court. Civil contempt is punishable with imprisonment or fine in just the same way as is a criminal
contempt, what differs is the rationale of such punishment. Civil contempt is punished in order to
create or compel compliance with the court order concerned.
Criminal contempt of court is a broad category of offences concerning interference with the
administration of justice. Criminal contempt is committed when a publication is made of previous
convictions of the defendant during trial; standing up in a civil or criminal court and making abusive
comments about the judge; threatening a witness, refusing to give evidence once on the witness stand.
Criminal contempt is punishable because the conduct involved poses a serious threat to the
administration of justice and is reprehensible. A deterrent effect may also be sought when contempt of
court is alleged; the defendant may avoid or reduce his punishment by apologising and others may be
dissuaded from similar conduct if they are shown that even imprisonment may result.
Where there has been a breach of civil contempt, it is generally upto the injured party to initiate
proceedings before the court, whereas regarding criminal contempt, it is for the Attorney General to
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bring appropriate action and the burden of proof in both categories is beyond reasonable doubt.67
Supreme Court held that any wilful disobedience to the order of the court to do or abstain from doing
any act is prima facie a civil contempt. Civil contempt arises where the power of the court is invoked
and exercised to enforce obedience to orders of the court. On the contrary, Criminal contempts are
criminal in nature. It may include outrages on the Judges in open court, defiant disobedience to the
Judges in court, libel on Judges or courts or interfering with the course of justice or any act which
tends to prejudice the course of justice. In the case of criminal contempt, intention or motive is not the
criterion. Of course, they may be considered from a mitigation or aggravation of sentence, as the case
may be.68 Presenting or submitting forged document before court amounts to contempt.69 It was held
that disobedience of court’s order would amount to civil contempt only when it is wilful or
deliberate.70 “wilful” means an act or omission which is done voluntarily and intentionally and with
the specific intent to fail to do something the law forbids or with the specific initial to fail to do
something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard
the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. An order
to constitute contempt, the order of the court must be of such a nature which is capable of execution
by the person charged in normal circumstances.71
Law of contempt is only one of the many ways in which the due process of law is prevented from
being perverted, hindered or thwarted to further the cause of justice. Due process of justice means not
only any particular proceeding, but a broad stream of administration of justice. Therefore, the words,
“due process of justice” used in section 2(c) or 13 of the Contempt of Courts Act are of wide import
and are not limited to any particular judicial proceeding. It is much more wider when the Supreme
Court exercises suo motu power under Article 129. Due process of law is blinkered by acts or conduct
of parties to the litigation or witnesses which generate tendency to impede or undermine the free flow
of the unsullied steam of justice by blatantly resorting, with impunity, to fabricate court proceedings to
thwart fair adjudication of dispute and the resultant end. If the act complained of substantially
interferes with or tends to interfere with the broad stream of administration of justice, it would be
punishable. If the act complained of undermines the prestige of the court or causes hindrance in the
discharge of due course of justice or tends to obstruct the course of justice, it is sufficient that the
conduct complained of constitutes contempt. Fabricating court proceedings, impersonating the petition
and producing fabricated documents with the intention of gaining unfair advantage amounts to
criminal contempt.72
Law is well settled that the power of the Supreme Court in contempt matters is not confined merely to
the provisions of the Contempt of Courts Act, 1971, and the rules framed thereunder. It has plenary
power to punish any person for contempt of court, and for that purpose, require any person to be
present in court in the manner considered appropriate in the facts of the case.73
The power conferred under Article 129 on the Supreme Court and under Article 215 on the High Court
are constitutional in nature and cannot be abridged by legislature.74 In S.K. Sarkar v Vinay Chandra
Misra,75 it was held that both Articles 129 and 215 preserve all the powers of the Supreme Court and
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High Court respectively as a court of record which include the power to punish contempt of itself, and
there is no curb on this power except that this be subject to the constitutional provision in Articles 129
and 215. The court’s inherent power to act suo motu is drawn from the aforesaid Articles and consent
of Advocate-General or consultation with him by Court of Record is not contemplated. The contempt
jurisdiction springs not from any enactment as such or from the provisions of the Contempt of Courts
Act, but is a necessary adjunct of all the Courts of Record.76
The Supreme Court is a “Court of Record” and has all the powers of such a court including the power
to punish for its contempt. The Court of Record has – (1) the power to determine its own jurisdiction;
(2) it has power to punish for its contempt. On the first question, the Supreme Court held:
In the absence of any express provision in the Constitution, the Apex Court being a Court of Record has jurisdiction in every
matter and if there be any doubt, the court has power to determine its jurisdiction.77
[Art 129.2.3] Power to punish for contempt of itself
1. Though as a Court of Record the Supreme Court would have the power to punish for contempt of
itself, Article 129 specifically mentions this power in order to remove any doubts.78
On the question of contempt of court, the Supreme Court has a summary jurisdiction to punish
contempt of its authority. This is an extraordinary power and is exercised only to uphold the majesty
of judicial system.79 Such a power is very much necessary to prevent interference with the course of
justice to maintain the authority of law administered in the court and thus to protect public interest in
the purity of the administration of justice.
The Supreme Court has emphasised upon the need for the concept of contempt of court in the
following words:
Availability of an independent judiciary and an atmosphere wherein judges may act independently and fearlessly is the source of
existence of civilization of society. The writ issued by the court must be obeyed. It is the binding efficacy attaching with the
commands of court and the respect for the orders of the court which deter the aggrieved person, from taking the law in their own
hands because they are assured of an efficacious civilised method of settlement of dispute being available to them wherein they
shall be heard and their legitimate grievances redeemed. Any act or omission which undermines the dignity of the court is therefore
viewed with concern by the society and the court treats it as an obligation to zealously guard against any onslaught on its dignity.80
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The Supreme Court exercises this power to punish an act which tends to interfere with the due course
of administration of justice. The following inter alia have been held to constitute contempt of court81 –
(a) insinuations derogatory to the dignity of court which are calculated to undermine the confidence of
the people in the integrity of judges; (b) an attempt by one party to prejudice the court against the
other party to the action; (c) to stir up public feelings on the question pending for decision before the
court and try to influence the judge in favour of himself; (d) an attempt to affect the minds of the
judges and to deflect them from performing their duty by flattery or veiled threat; (e) an act or
publication which scandalizes the court attributing dishonesty to a judge in the discharge of his
functions; (f) willful disobedience or non-compliance of the court orders.82 Jurisdiction to initiate
proceedings for contempt as also the jurisdiction to punish for contempt, are discretionary with the
court. Contempt generally and criminal contempt is certainly a matter between the alleged contemner
and the court. No one can compel or demand as of right initiation of proceedings for contempt. The
person filing an application before the court does not become a complainant or petitioner in the
proceedings. He is just an informer or relator. His duty ends with the facts being brought to the notice
of the court. It is thereafter for the court to act on such information or not.83 Criminal contempt
proceedings being quasi-criminal in nature, burden and standard of proof required reiterated is the
same as in criminal cases. Charges have to be framed and proved beyond reasonable doubt.
Punishment cannot be imposed without any foundation on mere probabilities or conjectures and
surmises. Words spoken by mistake or due to inadvertence or misunderstanding do not amount to
contempt. As the court is accused and the judge, great caution is required for taking steps for
contempt. Premature initiation of criminal contempt proceedings was deprecated.84 Contempt
proceedings are quasi-criminal in nature. Burden and standard of proof is as required in criminal
cases. Court should be satisfied that there is reasonable foundation for the charge. Punishment cannot
be imposed on probabilities without there being any foundation merely on conjectures and surmises.
Any deviation from prescribed rules should not be accepted or condoned lightly. Any deviation must
be deemed to be fatal to proceedings taken to initiate action for contempt. In cases where there is
complete deviation from fair procedure, alleged contemners cannot be found to be guilty.85 It was held
in that case that the law of contempt must be strictly interpreted and complied with before any person
can be punished for contempt.
Where the contemner neither obeys nor makes appropriate prayer for extension of time to obey the
orders of court, the only inference in law is that such a party is disobeying orders. Passive/dormant
disobedience of court order are both contemptuous acts. Defence of lethargy, ignorance, official delay
and absence of motivation in obeying court directives or orders held cannot be raised as a defence
even if the contemners are high officials.86 In H.G. Rangangoud v State Trading Corp of India Ltd,87
the court held that the power to punish for contempt is inherent in the Court of
Record and is a necessary incidence of the court of justice. The said power though inherent in the
High Court is given a constitutional status by Article 215 of the Constitution. Power to punish for
contempt is to secure public respect and confidence in judicial process. It was held that rule of law is
basic rule of governance of any civilized democratic polity and is only through courts that rule of law
unfolds its contours and establishes its concept. Greater the power, higher the responsibility of
Constitutional court, to punish for contempt.
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In Kanwar Singh Saini v High Court of Delhi,88 it was held that contempt proceedings being quasi-
criminal in nature, standard of proof required is the same as in other criminal cases. Alleged
contemner is entitled to protection of all safeguards/rights provided in criminal jurisprudence
including benefit of doubt. There must be clear-cut case of obstruction to administration of justice by a
party intention-ally to bring the matter within the ambit of contempt. Court should not rest only on
surmises and conjectures.
In State of MP v Suresh Narayan Vijayvargirya,89 an interim direction was given by the court to the
petitioners to give admission to certain students selected by the State Government, but the M.P.
Private University Act, 2007 did not permit so, and on that ground, the institution denied permission
to admit the students. When contempt proceeding was taken against the institution, the court said that
statutory provision in question does not provide the excuse which the contemners seek. Even
otherwise, once there is an order in force binding on the parties, they cannot violate or ignore that
order, taking shelter under a statutory provision and if any modification of the orders is warranted,
parties should have approached the concerned court i.e., Supreme Court and sought for clarification or
modification of those orders. The Court held that the institution acted in total defiance of orders
passed by the court which the court held as “impermissible”. The court held that the contemners
having wilfully disobeyed the order, they are guilty of contempt.90
2. The object of this power to punish is not the protection of the Judges personally from imputations to
which they may be exposed as individuals,78 but the protection of the public themselves from the
mischief they will incur if the authority of the tribunal is impaired.91 Hence,—
Scandalising the court
(i) The power to punish for scandalising the court is a weapon to be used sparingly and always with
reference to the administration of justice92 and not for vindicating personal insult to a Judge, not
affecting the administration of justice.
Generally this type of contempt arose to protect the judicial system from media attacks. The idea
behind it is that it would be against the public interest if the media could attack Judges and cast doubt
on their decisions—suggest for example—that a Judge had shown bias—because the public
confidence in the administration of justice would be undermined. This is a form of strict liability
contempt at common law.
In “Editor of New Statesman”,93 it was declared that there would be no need to show an intention to
lower the repute of the Judge or court in question, merely an intention to publish will be sufficient.
The actus reus of this form of contempt consists of publication of material circulated to lower the
reputation of a court or Judge, thereby creating a risk of undermining public confidence in the due
administration of justice. In the State (DPP) v Walsh,94 it was observed that such contempt occurs
where wild and baseless allegations of corruption or malpractice are made against a court. But, at the
same time, Privy Council said: “Justice is not a cloistered virtue; she must be allowed to suffer the
scrutiny and respectful, even though outspoken comments of ordinary men”.95 The above position was
reaffirmed in Metropolitan Police Commissioner ex parte Black-burn,96 by the Court of Appeal. It was
held that the concept of contempt by scandalising court as modified in England or Australia has no
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application in India. The social and economic conditions of the public in India are again such that it
would be very dangerous to grant them the liberty of scandalising the courts in unbridled manner. It is
true that even in India in suitable cases fair and bona fide criticism of the judicial acts of the court may
sometimes be permitted. But, where scandalising the court by means of publication and distribution of
pamphlets by an MLA tends to bring the authority of the court into disrespect and offers insult to the
judicial officer concerned and diminishes his dignity and prestige in the eyes of the public in general
and shakes their confidence in the impartial administration of justice by him, such a weapon cannot be
kept in the hands of litigants or the members of the public.97
It is difficult to test all the acts that may constitute contempt of court. Decisions of the Supreme Court
have also varied depending on circumstances of each case. However, on the basis of what has been
held by the Supreme Court in different cases, the following general principles regarding what would
constitute contempt of court are listed – (1) Any act or omission which undermines the dignity of
court; (2) Publication of scurrilous remarks by imputing motives, bias and dishonesty to a judge there-
by interfering with the course of justice; (3) Attacking the judge for a judgment or past conduct
thereby adversely affecting the administration of justice and undermining the confidence of the public
in the judicial system; (4) Criticising the court of class hatred, favouritism, etc.; (5) Wilful
disobedience or not implementing of the orders of the court by the Government officers, companies or
private persons; (6) Trying to influence or pressurise the court by threats, flattery or the like. The
power of contempt is vital for the rule of law, but if the court shuts down the doors completely
denying even fair and open criticism, then it cannot justify its power of contempt with the principle of
rule of law or the administration of justice. It is, therefore, essential that the court be wise and
judicious in its application in this imprecise area of power in the interest of judicial accountability.
In February 2006, Contempt of Court (Amendment) Bill 2004 was passed to make truth a valid
defence in contempt of court cases. The 1971 Contempt of Court Act has been amended by the
insertion of sec. 13B which reads as follows:—
The court may permit in any proceeding for contempt of court justification by truth as a valid defence, if it is satisfied that it is in
public interest and the request for invoking the said defence is bona fide.
The amended law maintains the earlier standard as well.
No court shall impose a sentence under this Act for contempt of court unless it is satisfied that contempt is of such a nature that it
substantially interferes or tends substantially to interfere with the course of justice.
A Court of Record is one whereof the acts and judicial proceedings are enrolled for perpetual memory
and testimony which has authority to impose fine and imprisonment for contempt of itself or of any
court – High Courts and Subordinate Courts – and tribunals subordinate to it in the country. For
instance, the Supreme Court can punish for contempt of the Income Tax Appellate Tribunal (ITAT).
The Subordinate Courts administer justice at the grass root level. Their protection is necessary to
preserve the confidence of people in the efficacy of courts and to ensure unsullied flow of justice as its
base level. As a superior Court of Record and as the Apex Court, the Supreme Court has wide powers
of judicial supervision over all the courts in the country. The power to punish for contempt is founded
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on the promise of its judicial power to correct the errors of Subordinate Courts.1 The power to punish
for contempt being inherent in a Court of Record, it follows that the Act of Parliament can take away
that inherent jurisdiction of the Court of Record to punish for contempt and the Parliament’s power of
legislation on the subject cannot, therefore, be so exercised as to stultify the status and dignity of the
Supreme Court and/or of the High Court.2
The Supreme Court has emphasised upon the need for the concept of contempt of court as followed in
Om Prakash Jaiswal v D.K. Mittal,3
Availability of an independent judiciary and an atmosphere wherein judges may act independently and fearlessly is the source of
existence of civilisation of society. The writ issued by the court must be obeyed. It is the binding efficacy attaching with the
commands of court and respect for the orders of the court which deter the aggrieved person from taking the law in their own hands
because they are assured of an efficacious civilised method of settlement of dispute being available to them wherein they shall be
heard and their legitimate grievances redeemed. Any act or omission which undermines the dignity of the court is therefore viewed
with concern by the society and the court treats it as an obligation to zealously guard against any onslaught on its dignity.
The Supreme Court exercises this power to punish an act which tends to interfere with the course of
administration of justice. The following inter alia have been held to constitute contempt of court.4 (a)
insinuations derogatory to the dignity of the court which are calculated to undermine the confidence of
the people in the integrity of judges; (b) an attempt by one party to prejudice the court against the
other party to the action; (c) to stir up public feelings on the question pending for decision before the
court and try to influence the judge in favour of himself; (d) an attempt to affect the minds of the
judges and to deflect them from performing their duty by flattery or veiled threat; (e) an act or
publication which scandalises the court attributing dishonesty to a judge in the discharge of his
functions; (f) wilful disobedience or non-compliance of the court orders.5 The Supreme Court has
emphasised that a Government of law and not of men such as exists in India; the Executive branch of
the Government bears a grave responsibility for upholding and obeying judicial orders.6 Cases usually
arise where the Government officials are found guilty by Supreme Court of contempt of court for
disregarding, not obeying, deliberately disobeying or not implementing court orders.7
In P.N. Duda v P. Shiv Shankar,8 court observed:
Any publication which was calculated to interfere with the course of justice or proper administration of law would amount to
contempt of court. A scurrilous attack on a judge in respect of a judgment or past conduct has in our country the inevitable effect of
undermining the confidence of the public in the judiciary and if confidence in judiciary goes, administration of justice will
definitely suffer.9
In C.K. Daphthary v O.P.Gupta,10 the court refused to accept the contention that after the case is
decided, even if it is criticised severely and unfairly, it should be treated as contempt of court. Court
observed:
We are unable to agree that a scurrilous attack on judge in respect of a judgment or past conduct has no adverse effect on the due
administration of justice. This sort of attack in a country like ours has the inevitable effect of undermining the confidence of the
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public in the judiciary. If confidence in judiciary goes, the due administration of justice definitely suffers.
Contempt of court is committed when a court is scandalised by casting unwarranted, uncalled for and
unjustified aspersions on the integrity, ability, impartiality or fairness of a judge in discharge of his
judicial function as it amounts to an interference with the due course of administration of justice.11
Charging the judiciary as an “instrument of oppression and the judges are guided and dominated by
class hatred, instinctively favouring the rich against the poor” has been held to constitute contempt of
court as these words weaken the authority of law and law courts and have the effect of lowering the
prestige of judges and courts in the eyes of the people.12
A distinction is drawn between a mere libel or defamation of a judge personally and what amounts to
contempt of court. A mere defamatory attack on a judge is not actionable, but it becomes punishable
when it is calculated to interfere with due course of justice or the proper administration of law by the
court. Alternatively, the test is whether the wrong is done to the judge personally or it is done to the
public.13
Contempt of court is characterized either as civil or criminal. Any willful disobedience of a court order to do or to abstain from
doing any act is a civil contempt. Civil contempt arises when the power of the court is invoked or exercised to enforce obedience of
court orders.14 On the other hand, criminal contempt is criminal in nature. It includes outrage on judges in open court, defiant
disobedience to the judges in court, libel on judges or courts or interfering with the course of justice or any act which tends to
prejudice the course of justice. A person is guilty of criminal contempt when his conduct tends to bring the authority and
administration of law into disrespect or tends to interfere with or prejudice litigants during litigation.15 A Government servant
while filing an affidavit on behalf of his department cast aspersions on, and attributed motives to the court. The Supreme Court
came to the conclusion that the accusation, attribution and aspersions made in the affidavit were not only deliberately calculated to
malign the court, but also to undermine its authority and to deter it from performing its duty. It was an intentional attempt to
obstruct the course of justice and thus amounted to criminal contempt of the court.16 Threat by a lawyer representing a litigant to
file prosecution against the judge in respect of judicial proceedings conducted by him in his own court amounts to a positive
attempt to interfere with due course of administration of justice.17 A witness who takes inconsistent stand before the court in the
course of trial has also been held guilty of contempt.18
Under section 14 of the Contempt of Courts Act, in case of a criminal contempt of the Supreme Court,
the court may take action in either of the three ways – (1) on its own motion; (2) on the motion of the
Attorney General or Solicitor General; or (3) any other person with the consent of Attorney General or
the Solicitor General. If, therefore, a citizen wants to initiate proceedings for contempt of court, he
must first seek the consent in writing either of Attorney General or the Solicitor General. If any of
them refuses to give consent, the matter can be brought before the court for judicial review of the
refusal. The court has ruled in P.N. Duda v P. Shiv Shankar19 that if the Attorney General or Solicitor
General refuses to give permission to a person to move the court for its contempt, the non-granting of
consent is a justiciable matter. The court has observed:
Discretion vested in law officers of this court to be used for a public purpose in a society governed by rule of law is justiciable.
Another option may be that when a person draws the court’s attention to commission of contempt by
someone and he has not been given permission either by the AG or the SG, the court may take
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cognizance of the complaint suo moto. The party which brings the contumacious conduct of the
contemner to the notice of the court, whether a private or subordinate court, is only an informant, and
does not have the status of a litigant in the contempt of court case. The case of contempt is not stricto
senso a cause or a matter between the parties inter se. It is a matter between the court and the
contemner.20
In C.K. Daphthary v O.P.Gupta,21 the pamphlet in question ascribed bias and dishonesty to a judge of
the Supreme Court while acting in judicial capacity. This was made the basis of contempt proceedings
against the respondent. Examining the scope of the concept of contempt of court, the Supreme Court
stated that the test was whether the impugned publication was a mere defamatory attack on the judge
or whether it would interfere with the due course of justice or proper administration of law by the
court. On this test, the court found that the pamphlet contained a scurrilous remark about a Supreme
Court judge which amounted to gross contempt of the judge and of the Court itself. The court laid
down the following propositions regarding the scope of the concept of contempt of court:- (1) There is
no excuse whatsoever for imputing dishonesty to a judge, even if it were to be assumed that the
judgment contained numerous errors; (2) No evidence other than affidavit is allowed to justify
allegations amounting to contempt of court; (3) In trying contempt of court, the court can deal with the
matter summarily and adopt its own procedure. However, the procedure must be fair. The Code of
Criminal Procedure does not apply in matters of contempt; (4) When the charge against the
contemner is simple and clear, there is no need to draw up a formal charge by the court; (5) The
President of the Supreme Court Bar Association can bring to the notice of the court any contempt of
court as the Bar is virtually concerned in the maintenance of the dignity of the Courts and proper
administration of justice.
In Amrit Nahata v UOI,22 the court also held that a contempt petition cannot be withdrawn by the
petitioner as a matter of right. The matter is primarily between the court and the contemner. It is,
therefore, for the court to allow or refuse withdrawal in the light of broad facts of the case and more
particularly whether the respect for judicial process would be enhanced or reduced by the grant or
refusal of withdrawal. It is for the court, if viewed with certain severity with a view to punishing the
person should in the larger interest of the society enhance respect for the judicial process or too
sensitive attitude in such matter may even become counter-productive. The power to commit for
contempt of court is to be exercised with the greatest caution.
In P.N. Duda v P. Shiv Shankar,23 a practising lawyer brought the speech of Union Law Minister P.
Shiv Shankar to the notice of the Supreme Court and contempt proceedings were initiated against the
minister. The Supreme Court adopted the following words spoken by Lord Atkin in Ambard v AG for
Trinidad and Tobago;24
Justice is not a cloistered virtue, she must be allowed to suffer the scrutiny and respectful even though outspoken comments of
ordinary men.
Administrations of justice and judges are open to public criticism and public scrutiny. Judges have their accountability to the
society and their accountability must be judged by their conscience and oath of their office, that is, to defend and uphold the
Constitution and the laws without fear or favour. This the judges must do in the light given to them to determine what is right.
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It was also observed:
In the market, place of idea criticism about judicial system or the judges should be welcomed so long as criticism does not impair
or hamper the administration of justice.
Contempt of court arises when criticism about judicial system or the judges hampers the
administration of justice or which erodes the faith in the objective approach of judges and “brings
administration of justice into ridicule”. Judgment can be criticised, but motives should not be
attributed to the judges as it “brings the administration of justice into deep disrespect”. Applying this
test to Minister’s speech, the court ruled that there was no imminent danger of interference with the
administration of justice or of administration of justice into disrepute. In that view of the matter, the
court held not guilty of contempt.
Again the Supreme Court has emphasised that contempt of court is not committed if a person
publishes any fair comment on the merits of any case which the court has heard and decided finally.
But in the guise of criticizing a judgment, personal criticism of the judge is not permissible.
Courts like any other institution do not enjoy immunity from criticism as long as the criticism is fair, reasonable and temperate and
does not accuse judges of discharging their duties for improper motives or on extraneous consideration.
The rationale underlying this proposition is that to ascribe motives to a judge is to sow the seed of
distrust in the minds of the public about administration of justice as a whole. Nothing can be more
pernicious in its consequences, than to prejudice the minds of the public against the judges of the court
who are responsible for implementing the law. Judges do not defend their decision in public.25 With
the introduction of truth as a valid defence to an allegation of contempt by the amendment to
Contempt of Courts Act, 1971 in 2006, the judge may have to do just that if the judgment is claimed to
have been prompted by improper motives.
The Supreme Court also clarified the point that under the law, in case of contempt in the face of the
Supreme Court (Criminal Contempt), the Supreme Court can take action either on its own motion, or
on a motion by the Attorney General or Solicitor General or any other person with the consent of
Attorney General or Solicitor General or any other person with the consent of the Attorney General or
Solicitor General. If, therefore, a citizen wants to initiate proceedings for the contempt he has first to
seek the consent in writing of the Attorney General or the Solicitor General. The court further ruled
that the
Discretion vested in law officers of the court to be used for a purpose in a society governed by rule of law is justiciable.
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The Supreme Court has clarified the relationship between Article 129 and the Contempt of Courts Act,
1971 in Pallav Seth v Custodian.26
There are two primary considerations which should weigh with the court in such cases, viz.—(a)
whether reflection on the conduct or character of the Judge is within the limits of fair and reasonable
criticism, and (b) whether it is a mere libel or defamation of the Judge or amounts to a contempt of the
court.27
Scandalising the Judge himself
Where the question arises whether a defamatory statement directed against a Judge is calculated to
undermine the confidence of the public in the competency or integrity of the Judge or is likely to
deflect the court itself from a strict and unhesitant performance of its duties, all the surrounding
circumstances under which the statement was made and the degree of publicity that was given to it
would be relevant circumstances. The question is not to be determined solely with reference to the
language or contents of the statement made. Mere publication to a third party, which would be
sufficient to establish an ordinary libel may not be conclusive for establishing contempt. That would
depend upon the nature and extent of the publication and whether or not it was likely to have an
injurious effect on the minds of the public and thereby lead to an interference with the administration
of justice.28
Scandalising the court would mean hostile criticism of judges as judges or judiciary. Any personal
attack upon a judge in connection with the office he holds is dealt with under the law of libel or
slander. Yet, defamatory publication concerning the judge as a judge brings the court or judge into
contempt a serious impediment of justice and an inroad on the majesty of justice. Any caricature of a
judge calculated to lower the dignity of the court would destroy, undermine or tend to undermine
public confidence in the administration of justice or the majesty of justice.29
Re C.S. Karnan,30 a seven judge Constitution Bench of the Supreme Court held that the actions of
contemnor (a sitting High Court Judge) constituted the grossest and gravest contempt of court and
sentenced him to 6 months’ imprisonment for his unsavoury actions and behaviour.
It has never been the policy that any person who constructively criticises the law should be punished.
However, that is not to say that a person has carte blanche to say or write anything he or she wishes
about the court and its administration. Whilst the courts themselves put great emphasis on the freedom
of speech, nevertheless, there have always existed laws which prevent publication that have the effect
of ridiculing and undermining the authority of the courts. Whilst the freedom of speech should be
protected at all costs, the judges are in the unenviable position of not being able to reply to verbal
attacks made on them through publication in the media, except perhaps through the courts themselves.
Such attacks are commonly referred to as “scandalising the court”. “Scandalising the court” means an
act done or writing published calculated to obstruct, to interfere with the due course of justice or the
lawful process of courts… But judges and courts are also open to criticism; if reasonable argument or
expostulation is offered against any judicial act as contrary to law or the public good, no court could
or would treat that as a contempt of court.”31
The intention of the contemner is immaterial.32 Nor is justification available as a plea in defence.33
Although contempt may include defamation, yet an offence of contempt is something more than mere defamation and is of a
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different character.34
At any rate, defamation of a Judge who has retired cannot be punished as contempt of court.35
On the other hand, the following are instances of scandalising a Judge which would tend to bring the
administration of justice to disrepute:
Imputing corruption;34 dishonesty (in the matter of obtaining concurrence of another Judge to a
judgment tainted by malice).32 The scandalisation may be in respect of a single Judge 32 or Court or in
respect of the whole of the judiciary or judicial system.33
While considering the request for withdrawal of the proceedings initiated for taking action for
contempt of court, the court would be generally guided by the broad facts of the case and more
particularly whether respect to judicial process would be enhanced or dwindled by either granting or
refusing to grant the request. There is a marked difference between a complaint made by an individual
for the wrong done to him and a petition moved before the court inviting the court to take notice of the
fact that its contempt has been committed. The contempt is of the court and not of the individual. It is
for the court to decide whether punishing the person would enhance respect for the judicial process or
too sensitive an attitude may become counter-productive. The person filing the contempt petition is
not entitled as a matter of right to withdraw the petition whenever it suits his purpose.36
(ii) Fair and reasonable criticism of a judicial act in the interest of the public good does not amount to
contempt.\
Fair and reasonable criticism
But the limits of bona fide criticism are transgressed when improper motives are attributed to judges
and this cannot be viewed with placid equanimity by a court in a proceeding for contempt.
Imputations made against judicial officers without reasonable care and caution cannot be bona fide.34
Thus, it is a gross contempt to impute that Judges of the highest court of Justice acted on extraneous
considerations in deciding a case.37
There are many kinds of contempt. The chief forms are insulting judges, attacks upon them,
commenting on pending proceedings with a tendency to prejudice fair trial, obstruction to officers of
the court, witnesses or parties abusing process of courts, breach of duty connected to the court and
scandalising the judges or the courts. A contempt may be committed with respect to a single judge or a
single court and in certain circumstances, be committed in respect of the whole judiciary or judicial
system.38 The Supreme Court came heavily on the conduct of the retired Law Secretary and punished
him for contempt when he interfered with the judicial functioning of the Income Tax Appellate
Tribunal. His letter to the President of the Appellate Tribunal to take action on the members of the
Tribunal constituting particular Bench for deciding a particular case improperly was considered by the
Supreme Court as improper, as it travelled beyond exercising administrative control over the Tribunal.
Supreme Court held that it was a clear case of interference with the judiciary.39 Where a Government
officer met a judge of Supreme Court at his residence to seek mercy for the sentence of imprisonment
imposed on his colleague and freed from punishment for committing of contempt, it was held that the
act of meeting the judge was most reprehensible and must be disapproved of in strongest terms, but as
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the deponent realised his mistake, the matter was closed, but an Entry be made in his CR about the
gross impropriety committed by him.40
Defence of fair comment is available even when the proceedings are pending.41 The right of criticising
in good faith in private or public a judgment of the court cannot be exercised with malice or by
attempting to impair the administration of justice. Instead, freedom of speech and expression is “the
life blood of democracy”, but this freedom is subject to certain qualifications. An offence of
scandalising the court per se is one such qualification since that offence exists to protect the
administration of justice and is reasonably justified and necessary in a democratic society. It is not
only an offence under the Contempt of Courts Act, but is “sui generis”. Courts are not unduly
sensitive to fair comment and orders made objectively, fairly and without malice, but no one can be
permitted to distort orders of the court and deliberately give a slant to its proceedings, which have the
tendency to scandalise the court or to bring it to ridicule, in the larger interest of protecting
administration of justice.42
A criticism which attributes “improper motives” to judge in the conduct of his ju-dicial work not only
transgresses the limits of fair and bona fide criticism, but has a clear tendency to affect the dignity and
prestige of the court and consequently amounts to gross contempt of court.43 Fair and reasonable
criticism of the conduct and character of judges in relation to judicial duties does not amount to
contempt. Bona fide complaints against judicial officers addressed to authorities to seek redress for
some grievance and not intended to exert pressure upon them in the exercise of judicial functions or to
diminish their authority on Judges by vilifying them cannot be treated as contempt.44 Defamatory
attack on judge unless it is also calculated to interfere with due course of justice or proper
administration of law by such court will not be treated as contempt of court.45 Criticism of judges in
relation to something done by them which has absolutely no relevance to their position as judges or
criticism of the executive acts of a judicial officer does not amount to contempt.46
Though a mere defamatory attack on a Judge is not actionable, it becomes actionable when it is
calculated to interfere with the administration of justice. The test is, whether the wrong is done to the
Judge personally or it is done to the public.47 It was held that “administration of justice and judges are
open to public criticism and public scrutiny. Judges have their accountability to the society and their
accountability must be judged by their conscience and oath of their office, that is, to depend and
uphold the Constitution and the laws without fear or favour. Thus the Judges must do in the light
given to them to determine what is right.” It was further observed: “In the free market place of ideas
criticism about the judicial system or the judges should be welcomed, so long as criticisms do not
impair or hamper the administration of justice”.48 Fair criticism is that which while criticising the act
of a judge, does not impute any ulterior motive to him.49
But, it may not be contempt for a newspaper to criticise one of two views expressed in the judgments
of the Supreme Court in a case.50
An apology is not a weapon of defence forged to purge the guilt of the offenders nor it is intended to
operate as a panacea. It is intended to be the evidence of real contriteness, the manly consciousness of
a wrong done of an injury inflicted and the earnest desire to make such reparation as lies in the
wrongdoer’s power.51. In Mohd. Quaiser v L.K. Sinha52 where the erring officials defaulted in
compliance with the order of court, tendered an unconditional apology and it was accepted. Where a
petition was filed by the contemner praying for remission of sentence by stating that he acted on legal
advice, it was held that there was no question of acting on legal advice as nothing was left except to
implement the order of the Supreme Court. The apology tendered was not accepted.53 Where the
contempt action was suo moto initiated by the court against the authorities and explanation offered by
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the authorities admitting bona fide error made in interpreting Supreme Court order followed by their
unconditional apology, it was held that having regard to the sequence of events, extraordinary speed in
processing the application made before the petitioner and the conduct of officers, the acceptance of an
unconditional apology would be travesty of justice and court held that the officers were guilty of
contempt.54 Conditional apology so as to avoid conviction is not acceptable.55 Where a detenu was
physically beaten and kicked by policemen in the precincts of the Supreme Court in the presence of
public and lawyers, it was held that the head constable and constable who were actually involved in
the offending act were to be punished for contempt. The unconditional apology tendered was not
accepted and fine was imposed on them.56 Reading Article 19(1)(a) with Article 129 which
specifically confers on the Supreme Court the power to punish for contempt of itself, it is obvious that
contempt of court is an exception to the right to freedom of speech and expression guaranteed by the
Constitution.57 This apart, the right to freedom of speech and expression guaranteed by Article
19(1)(a) is subject to reasonable restriction to be imposed by Parliament by law inter alia in relation to
contempt of court. (See clause (2) of Article 19). The Supreme Court’s power like that of the High
Court under Article 215 is derived from the Constitution itself. Therefore, the provisions of Article
19(1) and (2) do not militate against the court’s power to punish contempt of itself. Assuming that
Article 19(2) applies, the restrictions imposed by law of contempt are reasonable and are in public
interest.
In the words of Lord Atkin,
Justice is not cloistered virtue and every criticism is not contempt.58
The Supreme Court observed in one of the earlier cases that it is not the practice of the court to issue
rule in a contempt matter except in very grave and serious cases and it is never over sensitive to public
criticism; but when there is danger of grave mischief being done in the administration of justice, the
animated version cannot be ignored with placid equanimity.59 If an impression is created in the minds
of the public that the judges in the highest court by the land act on extraneous consideration in
deciding cases, the confidence of whole community in the administration of justice is bound to be
undermined and no greater mischief than that can possibly be imagined.60 The object of contempt
proceedings is not to afford protection to judge personally from imputation to which they may be
exposed as individuals; it is intended to be a protection to the public whose interests would be very
much affected if by the act or conduct of any other party, the authority of court is lowered and the
sense of confidence which people have in the administration of justice by it is weakened.61
Proceedings for this species of contempt should be used sparingly and always with reference to the
administration of justice.62 It is not necessary to prove affirmatively that there has been actual
interference with the administration of justice, by reason of defamatory statement; it is enough if it is
likely or tends in any way to interfere with the proper administration of law.63 In the above case, a
publication was made calculated to interfere with the due course of justice or the proper administration
of law it would be punishable as contempt. A leaflet distributed by a litigant in the court while his
petition was being actually heard, though it did not amount to scandalising the court itself, the object
of writing the offending passage and particularly the timing of its circulation was quite clearly to
affect the minds of the judges and to defeat them the strict performance of their duties. Therefore, it
was held to be a gross contempt of the Supreme Court.64 A counsel who signs an application or
pleading containing matters of scandalising the court without reasonably satisfying himself about the
prima facie existence of adequate grounds therefor renders himself liable to punishment for
contempt.65 While a fair and temperate criticism of court, even if strong, may not be actionable,
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attributing improper motives or tending to bring judges or courts into hatred and contempt or
obstructing directly or indirectly the functioning of courts will be regarded as serious contempt.66 The
likely effect of the offending must be seen if they have clearly the effect of lowering the prestige of
judge and courts in the eyes of the people, they constitute contempt of court. That the contemner did
not intend any such result may be considered in the matter of sentence to be imposed on him but
cannot serve as a justification.67 Violation of a compromise or consent order does not amount to
contempt of court.68 In order to justify the action for contempt of court for breach of prohibitory order,
it is not necessary that the order should have been officially served on the party against whom it is
granted. If it is proved that he has notice of the order ali unde and he knew that it was intended to be
enforced, official communication is not a condition precedent, provided there is valid reason to doubt
the authenticity of the order conveyed to him.69 Refusal to act on a telegram issued by a third party
purporting to contain the order of the court, which is neither authorised nor authentic, does not amount
to willful default.70 The elementary basis of acceptance of apology in a proceeding for contempt is that
there is to be a finding of committal for contempt.71 In the absence of such a finding, no question
arises for acceptance of apology. An apology tendered by contemner, though conditional stating in
case it is found that he has committed contempt, he may be pardoned is sufficient in view of the
explanation to section 12 of the Contempt of Courts Act.72 The bar is virtually concerned in the
maintenance of the dignity of courts and proper administration of justice. There is nothing in law
which prevents the courts from entertaining a petition at the instance of the President of the Supreme
Court Bar Association and some other advocates of the court.73 The court follows a summary
procedure in a contempt matter. It gives notice to the alleged contemner of the petition filed against
him and gives him an opportunity to file a reply.74 If the charge against the contemner is clear from the
petition for contempt, it is not necessary that a formal charge should be drawn up by the petitioner or
by the court. In exercise of the powers under section 23 of the Contempt of Courts Act, 1971 read with
Article 145 of the Constitution of India, the Supreme Court has since framed rules called the “Rules to
regulate proceedings for contempt of the Supreme Court 1975”. While the Constitution guarantees
freedom of speech and expression, it also lays down that in exercising that right, contempt of court
may not be committed. The underlying idea is that the authority of court be preserved and obstruction
to the administration of justice be removed.
Charging the judiciary as an “instrument of oppression” and “judges are guided and dominated by
class hatred”, instinctively “favouring the rich against the poor” has been held to constitute contempt
of court as these words weaken the authority of law and law courts and have the effect of lowering the
prestige of judges and courts in the eyes of the people.75 The Supreme Court has observed on the
question of contempt of Court:
We wish to emphasise that under the cover of freedom of speech and expression, no party can be given a licence to misrepresent
the proceeding and order of the court and deliberately paint an absolutely wrong and incomplete picture which has the tendency to
scandalize the court and bring it into disrepute or ridicule. .. Indeed the freedom of speech and expression is “life blood of
democracy”, but this freedom is subject to certain qualification. An offence of scandalising the court per se is one such
qualification.76
The Supreme Court as a Court of Record has the inherent jurisdiction to punish contempt not only
with proceedings before him, but also to punish contempt in connection with proceedings before
inferior courts. The language of Entry 77, List I and Entry 14 of List III demonstrate that the
legislative power can extend to matters connected with the contempt of court by the Supreme Court
and the High Courts. This is subject to the qualification that the legislation cannot denude, abrogate or
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nullify the Supreme Court to punish for contempt under Article 129 or vest that power to some other
court.77 The High Court being a Court of Record has inherent power in respect of contempt of itself as
well as of its Subordinate Courts even in the absence of any express provision in any Act. A fortiorari,
the Supreme Court being the Apex Court and a Superior Court of Record has power to determine its
jurisdiction to initiate or entertain proceedings for contempt of subordinate courts also. The view does
not run counter to any provision of Constitution.78 The contempt jurisdiction of the High Court or
Supreme Court is part of inherent power and not derived from Article 215 or 129. Therefore, the
constitutionally vested right cannot be either abridged, abrogated or cut down by any legislation
including Contempt of Courts Act or Code of Criminal Procedure.79 There are many kinds of
contempt. The chief forms are insulting judges, attacks upon them, commenting upon pending
proceedings with a tendency to prejudice fair trial, obstruction to officers of court, witnesses or
parties, abusing process of courts, breach of duty connected to the court and scandalising the judges or
the courts. A contempt may be committed with respect to a single judge or a single court and in certain
circumstances, be committed in respect of the whole judiciary or judicial system.80 Contempt in the
face of the court means a contempt which a judge sees with his own eyes, so that he needs no evidence
of witnesses and can deal with it himself at once. It covers contempts for which a judge on his own
motion could punish a man on the spot. So, contempt in the face of the court is the same thing as
contempt which the court can punish of its own motion or which is in the cognizance of the court.81
The most famous English case in this class is that of the Chief Justice Gascoigne, who without a
moment’s hesitation and without any prior notification, sent the Prince of Wales, later King Henry V
instantly to the Fleet Prison for a contempt of court committed in praesentia, the heir of the Crown
submitting patiently to the sentence and making reparation for his error by acknowledging it.82 When a
person abuses, interferes with or obstructs the process of court inter alia by the following acts, he
commits contempt:-
(a) Invading the court.—For example, in Morris v Crown Office,83 some Welsh students had invaded
the court as a protest to ventilate some grievances. They were convicted and sentenced. In maintaining
their sentence, Lord Denning said:
Let students demonstrate if they please, for the causes in which they believe. Let them make their protests as they please, for the
causes in which they believe. Let them make their protests as they wish, but they must do it by lawful means and not unlawful. If
they strike at the court of justice, they strike the root of society itself and they bring down that which protects them.
(b) Suborning of witnesses.—As was said in Attorney General v Butterworth,84 there can be no greater
contempt than to intimidate a witness before he gives his evidence or to victimise him afterwards for
having given it, for, if witnesses are deterred from coming forward in aid of legal proceedings, it will
be impossible that justice can be administered. “It would be better that the doors of the court of justice
were at once closed”.
(c) When witnesses refuse to answer question.—There is, it was held in Attorney General v
Mulholland,85 no privilege known to law by which journalist can refuse to answer to a question which
is relevant to the enquiry and is one which in the opinion of the judge it is proper for him to be asked.
In that case also, the contemner, a journalist was convicted and sentenced.
All courts are either on record or not of record. A court is where the act and procedure are enrolled on
parchment for a perpetual memorial and testimony.86 It is a Court of Record. But the mere fact that a
permanent record is kept does not, in modern law, stamp the character of the Court, since many courts
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are obliged to keep records and yet are held to be Courts not of Record.87 The possession of the right
to impose fine and imprisonment for contempt was formerly considered as furnishing decisive
evidence that a court was a Court of Record.88
The cornerstone of the Contempt law is the accommodation of two constitutional values – the right to
free speech and the right to independent justice. The ignition of contempt action should be substantial
and mala fide interference with fearless judicial action, not fair comment or trivial reflection on the
judicial process and personnel.89 The power of Supreme Court and the High Court being the Courts of
Record as embodied under Articles 129 and 215 respectively, cannot be restricted and trammelled by
any ordinary legislation including the provisions of the Contempt of Courts Act. Their inherent power
is elastic, unfettered and not subject to any limit. The power conferred upon the Supreme Court and
the High Court being Courts of Record under Articles 129 and 215 respectively of the Constitution, is
an inherent power and the jurisdiction vested is a special one not derived from any other statute, but
derived only from Articles 129 and 215 of the Constitution of India and, therefore, the constitutionally
vested right cannot be either abridged or abrogated or cut down. Nor can they be controlled or limited
by any statute or by any provision of the Code of Criminal Procedure or any Rules. The caution that
has to be observed in exercising this inherent power by summary procedure is that the power should
be used sparingly, that the procedure to be followed should be fair and that the contemner should be
made aware of the charges against him and given a reasonable opportunity to defend himself.90 The
contempt of court is a special jurisdiction to be exercised sparingly and with caution, whenever an act
adversely affects the administration of justice or which tends to impede its course or tends to shake
public confidence in the judicial institution. This jurisdiction may also be exercised when the act
complained of adversely affects the majesty of law or dignity of court. The purpose of contempt
jurisdiction is to uphold the majesty and dignity of the court of law. It is an unusual type of
jurisdiction “combining the jury, the judge and the hangman” and it is so because the court is not
adjudicating upon any claim between litigating parties. This jurisdiction is not exercised to protect the
dignity of an individual judge, but to protect the administration of justice from being maligned. In the
general interest of the community, it is imperative that the authority of court should not be imperilled
and there should be no unjustifiable interference in the administration of justice. It is a matter between
the court and contemner and third parties cannot intervene. It is exercised in a summary manner in the
aid of the administration of justice, the majesty of law and the dignity of court. No such act can be
permitted which may have the tendency to shake the public confidence in the fairness and impartiality
in the administration of justice.91 The court’s power to punish for contempt is a power which is
required in furtherance of proper administration of justice and preserving the authority of court. This
power is expressly preserved under Articles 129 and 275 of the Constitution. That is why the question
of contempt is a question which is essential between the court and contemner.92 In D.N. Taneja v
Bhajan Lal,93 it was also held that the person who had lodged the complaint was not entitled to any
right of appeal because he was not a necessary party in the contempt proceedings.
Even if no appeal is maintainable on behalf of the person at whose instance a proceeding for contempt
has been initiated and later dropped or whose petition for initiating contempt has not been dismissed,
he is not without any remedy. In appropriate cases, he can invoke the jurisdiction of the Supreme
Court which on being satisfied that it was a fit case where proceeding for contempt should have been
initiated, can set aside the order passed by the High Court. In suitable cases, the Supreme Court has to
exercise its jurisdiction under Article 136 of the Constitution in the larger interest of the administration
of justice.94 Any conduct which has the tendency to interfere with the administration of justice or the
due course of judicial the due course of judicial proceedings, but has also the tendency to impede,
obstruct and interfere with the administration of justice. The filing of false affidavit in judicial
proceedings in any court of law exposes the intention of the concerned party in perverting the course
of justice. The due process of criminal law cannot be permitted to be slighted nor the majesty of law
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be made a mockery by such act or conduct on the part of the parties in the litigation or even while
appearing as witnesses. Anyone who makes an attempt to impede or undermine or obstruct the free
flow of unsoiled stream of justice by filing false evidence commits criminal contempt of the court and
renders himself liable to be dealt with. Filing of false affidavits or making of false statement on oath
before court aims at stringing a blow at the Rule of Law and no court can ignore such conduct which
has the tendency to shake public confidence in the judicial institution because the very structure of an
ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be
poisoned by anyone resorting to filing of false affidavit or giving of false statement and fabricating
false evidence in a court of law.95 The power of the Supreme Court to punish for contempt though
quite wide is yet limited and cannot be expanded to include the power to determine whether an
advocate is guilty of “professional misconduct” in a summary manner giving a go by to the procedure
prescribed under the Advocates Act, 1961. The power to do complete justice under Article 142 is in a
way corrective power which gives preference to equity over law but it cannot be used to deprive a
professional lawyer of the due process contained in the Advocates Act, 1961 by suspending his licence
to practise in a summary manner, while dealing with a case of contempt of court. The Supreme Court
cannot in exercise of its jurisdiction under Article 142 read with Article 129 of the Constitution, while
punishing a contemner for committing contempt of court, also impose a punishment of suspending his
licence to practise, where the contemner happens to be an advocate. Such a punishment cannot even
be imposed by taking recourse to the appellate powers under section 36 of the Advocates Act, 1961
while dealing with a case of contempt of court (and not an appeal relating to professional misconduct
as such).96 In Delhi Judl. Service Assn., Tis Hazari Court, Delhi v State of Gujarat,97 Supreme Court
examined at length the power of the Supreme Court under Article 129 to punish for contempt. On the
question of jurisdiction, the court held:
There is, therefore, no room for any doubt that this court has wide power to interfere and correct the judgment and orders passed by
any court or Tribunal in the country. In addition to the appellate power, the court has special residuary power to entertain appeal
against any order of any court in the country. The plenary jurisdiction of this court to grant leave and hear appeal against any order
of a court or Tribunal confers power of judicial superintendence over all the Courts and Tribunals in the territory of India including
Subordinate Courts of Magistrate and District judge. This court has, therefore, supervisory jurisdiction over all Courts in India.
Examining the power of a Court of Record, it came to the conclusion that a Court of Record has
inherent power to punish for contempt of all Courts and Tribunals subordinate to it in order to protect
these Subordinate Courts and Tribunals. This power to protect is founded on the inherent power of a
Court of Record to correct judicial orders of Subordinate Courts. The court further observed:
The Supreme Court being a Court of Record under Article 129 and having wide power of judicial supervision over all the Courts in
the country, must possess and exercise similar jurisdiction and power as the High Court had prior to contempt legislation in 1926.
Inherent powers of a superior Court of Record have remained unaffected even after codification of contempt law. Article 129
declares the Supreme Court, a Court of Record and it further provided that the Supreme Court shall have all the powers of such a
court including the power to punish for contempt of itself only, there was no contempt of itself. The article confers power on the
Supreme Court to punish for contempt of itself and in addition, it confers some additional powers relating to contempt as would
appear from the expression “including”. The expression “including” has been interpreted by court to extend and widen the scope of
the power. The plain language of article clearly indicates that his court as a Court of Record has power to punish for contempt of
itself and also something else which could fall within the inherent jurisdiction of a Court of Record. In interpreting the
Constitution, it is not permissible to adopt a construction which would render any expression superfluous or redundant. The court
ought not accept any such construction. While construing Article 123, it is not permissible to ignore the significance and impact of
inclusive power conferred on the Supreme Court. Since the Supreme Court is designed by the Constitution as a Court of Record
and as the Founding Fathers were aware that a Superior Court of Record had inherent power to convict a person for the contempt
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of itself as well as the court inferior to it, the expression “including” was deliberately inserted in the Article. Article 129 recognises
the inherent power of the Court of Record in its plenitude including the power for contempt of inferior courts.
The jurisdiction of the Supreme Court under Article 129 of the Constitution is independent of
Contempt of Courts Act, 1971, and the power under Article 129 cannot be denuded, restricted or
limited by the Contempt of Courts Act. Thus, there is no restriction or limitation on the nature of
punishment that the Supreme Court may award while exercising its contempt jurisdiction.
It has been laid down by the Supreme Court that the contempt of court is disobedience of the court by
acting in opposition to the authority, justice and dignity thereof. It signifies a wilful disregard or
disobedience of the court’s order, it also signifies such conduct as tending to bring the authority of the
court and the administration of law into disrepute.1 Wilful disregard or disobedience of the court order
pre-supposes an awareness of the order that has been disregarded or disobeyed. In view of the affi-
davit filed by the contemner stating that they were not aware of law laid down by the Supreme Court
in Prem Shankar Shukla v Delhi Admn.,2 and Sunil Gupta v State of MP.3 In M.P. Dwivedi’s case4–
supra, the court refrained from taking action to punish him for contempt of court.
Interference with course of justice
(iii) Any speech or conduct which tends to influence the result of a pending trial, civil or otherwise
tends to interfere with the proper course of justice amounts to contempt of court.5 Thus,—
(a) Any threat to a party to a pending litigation which would force him to withdraw his action or
to abandon it, amounts to contempt.6 The threat may be offered by issuing a circular that
disciplinary action would be taken against a government servant if he seeks redress to a court
of law in matters arising out of his employment without first exhausting the official channels
of redress.7
(b) It is contempt to prejudice a party to a pending judicial proceeding e.g., by holding a parallel
inquiry on a matter which is subjudice,8 provided the scope of the inquiry is the same.9
(c) It is contempt on the part of any party to a prohibitory order issued by the court to commit a
breach of it after (a) service of such order upon him, or otherwise acquiring definite
knowledge that such an order had been made.10
(d) The uttering of words or an action in the face of the court or in the course of proceedings may
be a contempt, provided they interfere with the course of justice.11
Interference with court proceedings falls into two main categories—(a) direct, and (b)
indirect. Direct generally concerns instances which occur inside the court-room and,
therefore, are likely to be perceived by the judge. Indirect is where the contempt takes
place outside the court and the judge is unlikely to see or hear the person commit the
offensive conduct.
“In the face of the court” normally means that the offender does an act which the judge is
fully aware of which results in the court proceedings being disrupted, interfered with,
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delayed, etc., such that the judge has no option but to bring the offender before the Court
and if the offensive conduct warrants it, to fine and/or to sentence him to intimidate
imprisonment or indeed by other action which would remedy the contempt.12 Typical
examples of the type of contempt conduct here includes shouting, severe disruptions,
refusing to answer in court, wolf-whistling, protesting in court, disobeying the judge,
throwing objects at the judge, threatening persons in court, witnesses refusing to testify,
etc. Such is the sanctity of court-room that very little leeway is granted to those who show
disrespect towards the proceedings. The proper, uninterrupted proceedings in a court of
law take precedence over any unauthorised disruption, however justified and principled
that disturbance may be.
Conduct in a court designed to interrupt the administration of justice or expose the court to
ridicule falls within the category. It covers assaults, threats, insult or disturbing
proceedings, for example, by shouting slogans and singing songs.13 Witness who failed to
attend court, produce documents or answer relevant questions may be guilty of contempt.14
The particular position of journalist and others, who refused to reveal the source of
information is dealt within section 10 of British Contempt of Courts Act, 1981. The alleged
contempt does not have to be committed in the court-room itself, so long as it is closely
connected with the case in progress, for example, threatening a witness outside a court-
room or putting a cylinder of laughing gas on the roof of the court building with the object
of inducing gas into a particular court.15
Whatever be the position at common law, the taking of photograph and making of sketch
in court is forbidden by Criminal Justice Act, 1925 (section 41). The above section
prevents the television of court proceedings in England and Wales. The use of tape-
recorders or other instruments for recording sound without consent of court is made
contempt by section 9 of the Contempt of Court Act, 1981.16 All superior courts have
power to punish summarily by fine or imprisonment violence committed or threats uttered
in the face of the Court. Thus, the judge may punish an attack on anyone in court or
restrain the use of threatening words or scurrilous abuse. The issue whether an act
constitutes a contempt is for the judge alone. If the act is committee din court, the judge is
in a sense prosecutor, chief witness and jury. In Morris v Crown Office,17 a group of
students demonstrated in support of the Welsh language by interrupting a sitting of the
High Court in London, where they sang, shouted slogan and scattered pamphlets. After the
order was restored, the trial judge sentenced some of the students to prison for three
months and fined others £ 50 each. On appeal, Civil Division held that a High Court judge
still have power at common law to commit instantly to prison for criminal contempt and
that the requirement under the Criminal Justice Act, 1967 that prison sentence under six
months be suspended did not apply to committal of contempt. The court did not consider
the prison sentence to be excessive, but having regard to all circumstances, allowed the
appeal against sentence and bound over the appellants to be of good behaviour for one
year.
Contempt on the face of the Record includes insulting behaviour,18 disregard to the judge’s
ruling and refusal by a witness to give evidence or answer question which he or she is
required to answer.19 In Attorney General v Mulholland and Foster,20 two journalists
refused to disclose their source of information to a tribunal of enquiry appointed after an
Admiralty clerk had been convicted of espionage. The tribunal had by statute the powers
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of the High Court to examine witnesses. On appeal against a prison sentence imposed by
the High Court to whom the Tribunal had reported the journalists, it was held that the
journalists had no legal privilege to refuse to disclose sources of information given to them
in confidence, where the information was relevant and necessary to the trial or inquiry.
Scandalising is a form of contempt – picturesquely also known in Scot-land as

“murmuring judges” is intended to preserve public confidence in the administration of
justice by publishing words and conduct which are scurrilously abusive or impugn the
impartiality of the courts. In State (DPP) v Walsh,21 it was held:
Such contempt occurs when wild and baseless allegations of corruption or malpractice are made against a
court. In R v Gray (1900) 2 QB 36 , it was held to be contempt to say in a newspaper regarding prudence of a
judge. About Darling J, it was said that “he was an imprudent little man in a “horse-chair’…a microcosm of
conceit of empty headlines”.
The article went on to say,
No newspaper can exist upon its merits, a condition from which the Bench happily for Mr. Justice Darling is
exempt.
In R v Editor of News Statesman exparte DPP,22 it was held to be contempt to say that it
was impossible for certain people to hope for a fair trial from Avery J. To commit this type
of contempt, the words have to be directed at a judge in his judicial capacity.23
The risk of judges confusing their own self-esteem with the interest of justice is more
serious here than in other areas of the law of contempt. It is necessary to bear in mind Lord
Atkin’s words:
Justice is not a cloistered virtue, she must be allowed to suffer the scrutiny and respectful, though outspoken
comments of ordinary men.24
In R v Commissioner of Police of the Metropolis exparte Blackburn (No.2),25 for example,

wherein Mr. Quintin Hogg QC MP, as he then was, had published an article in “Punch”
criticising the decision of a court does not amount to contempt of court, even though they
are bad in tests and contains inaccuracies of fact, provided they are in good faith and do
not impute improper motive to those taking part in the administration of justice.
The concern of the law is not to protect the conduct of particular proceeding, but the
administration of justice in general and public confidence in the courts. The Contempt of
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Courts Act, 1981 (section 8) provides that it is contempt of court to obtain, disclose any
information about the details,26 or solicit any information about the details of the
deliberation of a jury in any legal proceedings. In R v Young,27 the Court of Appeal held
that it takes into account of what happened in the hotel where the jury had spent the night
as that was not part of their deliberation. Proceedings under the section may only be
instituted by or with the consent of Attorney General or on the motion of a court having
jurisdiction to deal with the alleged contempt. Section 8 is a restriction on freed
expression, but in Attorney General v Associated Newspapers Ltd,28 the view was
expressed that it did breach the ECHR.
A publication of the names of black-mail victims has been held to be a contempt because it
interferes with the administration of justice by deterring future victims of such crimes from
resorting to the courts.29 The House of Lords, however, in Attorney General v Leveller
Magazine Ltd,30 emphasised that at common law there is no general right to anonymity on
the part of witnesses and parties. Different views were expressed on whether courts
possessed a power specifically to order the press to restrain from revealing the identity of a
witness and whether if such a power existed, the magistrates had purported to make such a
ruling. Section 11of the Contempt of Court Act, 1981 provides that when a court (having
power to do so) allows a name or other matters to be withheld from the publication of that
name or matters as appear to the court to be necessary for the purpose for which it was
ordered to be withheld.
“Victimising” witnesses after the conclusion of legal proceedings provides another

example of conduct which generally undermines public willingness to participate in legal
proceedings and confidence in the ability of court to protect who appear before them.
The administration of justice is, after all, a continuing thing. It is bounded by the day’s cases. It has a future as
well as a present. And if, somebody pollutes the stream today, so that tomorrow’s litigant will find it poisoned
will he appeal to the court in vain.
31In Attorney General v Royal Society for Prevention of Cruelty to Animals (The Times,
June 22, 1985), the Society had brought disciplinary proceedings against one of its officers
for giving evidence for the defence at the hearing of a private prosecution brought by the
society. The Divisional Court described such conduct as “a serious and unmitigated
contempt” and imposed a heavy fine on the society.
[Art 129.2.4] Contempt on the face of the court.—
Conduct in a court designed to interrupt the administration of justice or expose the court to ridicule
falls within the category. It covers assaults, threats, insults,32 or disturbing proceedings, for example,
by shouting slogans and singing songs.33 Witness who fails to attend court, produce documents or
answer relevant questions may be guilty of contempt.34 Whatever be the position at common law, the
taking of photograph and making sketches in court is forbidden by the Criminal Justice Act. (section
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41). The use of tape-recorders or other instruments for recording sound without consent of court is
made contempt by section 9 of Contempt of Court Act, 1981.
Any person who physically attacks, bribes, pressurises or frightens a juror or witness or indeed anyone
who is in any way connected with on-going official court business may be deemed to be interfering
with the proper course of justice, thereby committing contempt of court. In such cases, severe
sentences may be passed down, especially if a trial has either to be postponed or discontinued because
of the contempt.
In Moore v Clerk of Assize, Bristol,35 the witness was threatened by the offender after she gave
evidence. It was held: “The court always preserves the freedom and integrity of witnesses and not
allow them to be intimidated in any way either before the trial, pending it or after it. The same will
apply to court officials in the execution of their duty.” In Attorney-General v But-terworth,36 a witness
who gave evidence was found afterwards victimised by trade unions to which he was a member and
honorary treasurer and soon after was relieved of his appointment. It was found that this type of action
was reprehensible, unacceptable and would wholly discourage witnesses from testifying for fear of
retribution being taken against them once the trial or hearing was over. It was held that victimisation is
as great an interference with justice when it is done after a witness gets home as before he gets there.37
Contempt on the face of court includes insulting behaviour,38 disregard to judge’s ruling and refusal
by a witness to give evidence or to answer questions which he or she is required to answer.39
(e) A subordinate court may be held guilty of contempt of court for violating an order of the
Supreme Court only if it disobeys the order intentionally, i.e., after having knowledge of the
order from an authentic source.40 A mere error of judgment is not sufficient for visiting a
judicial officer with the penal consequences of a proceeding for contempt.41
3. The power to punish for contempt is an extraordinary power which must be used sparingly, and
even on the ground of interference with the due course of justice, the court does not proceed by way of
contempt “unless there is real prejudice which can be regarded as a substantial interference” as
distinguished from “a mere question of propriety”.42
It is settled law that the power to punish for contempt is to be sparingly used and should be used only
for protecting the interest of administration of justice.43 In Suresh Chandra Poddar v Dhani Ram,44 it
was held that it is good to have the power of giant, but not good to use it always.
4. But though this extraordinary power must be used sparingly, where the public interest demands if
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the court will not shrink from exercising it and imposing punishment even by way of imprisonment, in
cases where a mere fine may not be adequate.42
Thus, an advocate who signs an application or pleading containing matter scandal-ising the court
which tends to prevent or delay the course of justice is himself liable to the punished for contempt of
court unless he reasonably satisfies himself about the prima facie existence of adequate grounds
therefor.45
The Supreme Court exercises this power to punish an act which tends to interfere with the due course
of administration of justice. The following inter alia have been held to constitute contempt of court.46
– (a) insinuations derogatory to the dignity of the court which are calculated to undermine the
confidence of the people in the integ-rity of judges; (b) an attempt by one party to prejudice the court
against the other party to the action; (c) to stir up public feelings on the question pending for decision
before the court and try to influence the judge in favour of himself; (d) an attempt to affect the minds
of the judges and to deflect them from performing their duty by flat-tery or veiled threat; (e) an act or
publication which scandalises the court attributing dishonesty to a judge in the discharge of his
functions; (f) willful disobedience or non-compliance of the court order.
The Supreme Court has emphasised that in a Government of law and not of men such as exists in
India, the Executive Branch of the Government bears a grave responsibility for upholding and obeying
judicial orders.47 Cases usually arise where the Government officials are found guilty by the Supreme
Court of contempt of court for disregarding, not obeying, deliberately disobeying or not implementing
court orders.
5. If a citizen in the garb of exercising the right to free speech and expression under Article 19(1)(a),
tries to scandalise the court or undermine the dignity of the court, then the court would be entitled to
invoke its power under Article 129 or Article 215, as the case may be. Freedom of speech and
expression, so far as they do not contravene the statutory limits as contained in the Contempt of Courts
Act, are to prevail without any hindrance. However, the maintenance of dignity of courts is one of the
cardinal principles of rule of law in a democratic setup and any criticism of the judicial institution
couched in language that apparently appears to be mere criticism, but ultimately results in
undermining the dignity of the courts cannot be permitted when found to have crossed the limits and
has to be punished.48 It was held that freedom of speech cannot prevail if contempt is manifest,
mischievous and substantial.49 A civil society is founded on respect for the law. If every citizen
chooses to break the law, there would be no society at all, atleast not a civil one. It is this respect for
the law and the law enforcement agencies that ensures the freedom recognised in the Constitution. The
respect is at best a fragile foundation. While it is to be built and sustained by the conduct of the
persons administering the law, it has to be stored up by sanctions for actual breaches of the law and for
actions destroying that respect. The law of contempt is framed for the second purpose. Although under
Article 19(1)(a) freedom of speech and expression is guaranteed, Article 19(2) provides an exception
thereto in respect of operation of any existing law or making any law imposing reasonable restrictions
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on the exercise of that right, in relation to contempt of court.50
An article in a daily, criticising a Supreme Court decision, attributing improper motives to the judge
and seeking to create an impression in the public mind that the Supreme Court Judges Act on
extraneous consideration in deciding cases has been held to constitute court’s contempt. The court has
stated that if an impression is created in the public mind that the judges in the highest court act on
extraneous consideration in deciding cases, public confidence in the administration of justice would be
undermined and no greater mischief than that could possibly be imagined.51 Contempt of court is
committed when a court is scandalised by casting
unwarranted, uncalled for and unjustified aspersions on the integrity, ability, impartiality or fairness of a judge in the discharge of
his judicial function as it amounts to an interference with the due course of administration of justice.52
Charging the judiciary as an “instrument of oppression” and the judges are guided and dominated by
class hatred, instinctively “favouring the rich against the poor” has been held to constitute contempt of
court as these words weaken the authority of law and law courts and have the effect of lowering the
prestige of judges and courts in the eyes of the public.53 A distinction is drawn between a mere libel or
defamation of a judge personally and what amounts to contempt of the court. A mere defamatory
attack on a judge is not actionable, but it becomes punishable when it is calculated to interfere with the
due course of justice or the proper administration of law by the court. Alternatively, the test is whether
the wrong is done to the judge personally or it is done to the public.54
The power to punish for contempt, large as it is, is not invoked very frequently and as the court itself
has observed, it should be exercised “cautiously, wisely and with circumspection”.55 On occasions,
factors which have been considered sufficient to warrant a lesser punishment in one case have not
drawn a similar response in another. Thus, even when criminal contempt is found established and the
contemner had “not shown any repentance or regret or remorse”, a symbolic punishment of
imprisonment for one day and a fine of Rs. 2,000/- was imposed “keeping in mind that the respondent
was a woman”.56 The court can punish its contempt by fine or imprisonment.57 The court can punish
for contempt unless there is real prejudice which can be regarded as “substantive interference” with
due course of justice.58 Contempt of court is either civil or criminal. Any wilful disobedience of a
court order to do or abstain from doing any act is a civil contempt. Civil contempt arises when the
power of the court is invoked or exercised to enforce obedience to court order.59 On the other hand,
criminal contempt is criminal in nature. It includes outrage on judges in open court, defiant
disobedience to the judges in court, libel on judges or courts or interfering with the course of justice or
any act which tends to prejudice the course of justice.
A person is guilty of criminal contempt when his conduct tends to bring the authority and
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administration of law into disrespect or tends to interfere with or prejudice litigants during litigation.60
A Government official while filing an affidavit on behalf of the department cast aspersions on, and
attributed motives to the court. The Supreme Court came to the conclusion that the accusation,
attribution and aspersions made in the affidavit were not only deliberately calculated to malign the
court, but also to undermine its authority and to deter it from performing its duty. It was an intentional
attempt to obstruct the course of justice and thus amounted to criminal contempt of the court.61 Threat
by a lawyer representing a litigant to file prosecution against the judge in respect of the judicial
proceedings conducted by him, in his own court, amounts to a positive attempt to interfere with the
due course of administration of justice.62 A witness who takes inconsistent stands before court in the
course of trial has also been held guilty of contempt.63
A newspaper published a news item that two sons of a Supreme Court judge had been allotted petrol
pumps by the Minister out of his discretionary quota. However, on verification, the news item was
found to be incorrect. The court held that the printer, publisher, editor and the reporter guilty of
contempt of the court. None of them took the necessary care in evaluating the correctness and
credibility of the information published by them as a news item in the newspaper in respect of the
allegation of a serious nature causing embarrassment to the court.64 The court can take cognizance of
its contempt suo moto.65 An advocate of the court can also bring to the notice of the court any
contempt of the court. In C.K. Daphthary v O.P. Gupta,66 a pamphlet published and circulated by the
respondent was alleged to contain statements amounting to contempt of the court. The President of the
Supreme Court Bar brought it to the notice of the court. The court ruled that it could issue notice suo
moto and the President of the Supreme Court Bar was perfectly justified or entitled to bring to the
notice of the court any contempt of the court.
Under section 14 of the Contempt of Courts Act, in case of criminal contempt of the Supreme Court,
the court may take action in either of the three ways – (1) on its own motion; (2) on the motion of the
Advocate General or the Solicitor General; or (3) any other person with the consent of Attorney
General or Solicitor General. If any of them refuse to give consent, the matter may be brought before
the court for judicial review of the refusal. In P.N. Duda v P. Shiv Shankar,67 the court has ruled that if
the Attorney General or Solicitor General refuses to give permission to a person to move the court for
its contempt, the non-granting of permission to a person to move the court for its contempt and the
non-granting of the consent is a judicial matter. The court also observed in this connection:
Discretion vested in the law officers of this court to be used for a public purpose in a society governed by rule of law is justiciable.
In C.K. Daphthary v O.P. Gupta,68 the pamphlet in question ascribed bias and dishonesty to a judge of
the Supreme Court while acting in judicial capacity. This was made the basis of contempt proceedings
against the respondent. Examining the scope of the concept of contempt of court, the Supreme Court
stated that the test was whether the impugned publication was a mere defamatory attack on the judge
or whether it would interfere with the due course of justice or proper administration of law by the
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court. On this test, the court found that the pamphlet contained a scurrilous remark about the Supreme
Court judge which amounted to gross contempt of the judge and of the Court itself. The court laid
down the following propositions regarding the scope of the concept of contempt of court:- (1) There is
no excuse whatsoever for imputing dishonesty to a judge, even if it were to be assumed that the
judgment contained numerous errors. (2) No evidence other than affidavit is allowed to justify
allegations amounting to contempt of court. (3) In trying contempt of court, the court can deal with the
matter summarily and adopt its own procedure. However, the procedure must be fair. The Code of
Criminal Procedure does not apply in matters of contempt. (4) When the charge against the contemner
is simple and clear, there is no need to draw up a formal charge by the court. (5) The President of the
Supreme Court Bar Association can bring to the notice of the court any contempt of court as the Bar is
virtually concerned in the maintenance of dignity of the Court and proper administration of justice.
The court has also ruled in Amrit Nahata v.UOI69 that a contempt petition cannot be withdrawn by the
petitioner as a matter of right. The matter is primarily between the court and the contemner. It is,
therefore, for the court to allow or refuse withdrawal in the light of the broad facts of the case and
more particularly whether the respect for judicial process would be enhanced or reduced by the grant
or refusal of withdrawal. It is for the court to determine whether the act complained of tending to
scandalise the court, if viewed with certain severity with a view to punishing the person would in the
larger interest of the society enhance respect for the judicial process or too sensitive attitude in such
matter may even become counter-productive. The power to commit for contempt of court is to be
exercised with the greatest caution.
The Supreme Court has emphasised that contempt of court is not committed if a person publishes any
fair comment on the merits of any case which the court has heard and decided finally. But in the guise
of criticising a judgment, personal criticism of the judge is not permissible. Courts like any other
institution do not enjoy immunity from criticism as long as the criticism is fair, reasonable and
temperate and does not accuse judges of discharging their duties for improper motives or on
extraneous consideration.
The rationale underlying this proposition is that to ascribe motives to a judge is to sow the seed of
distrust in the minds of the public about the administration of justice as a whole. Nothing can be more
pernicious in its consequences, than to prejudice the minds of the public against judges of the court
who are responsible for implementing the law. Judges do not defend their decision in public.70 With
the introduction of truth as a valid defence to an allegation of contempt by the amendment to
Contempt of Courts Act, 1971 in 2006, a judge may have to do just that if the judgment is claimed to
have been prompted by improper motives.
The Supreme Court also clarified the point that under the law, in case of contempt on the face of the
Supreme Court (Criminal Contempt), the Supreme Court may take action either on its own motion or
on a motion by the Attorney General or Solicitor General, or any other person with the consent of the
Attorney General or the Solicitor General. If, therefore, a citizen wants to initiate proceedings for
contempt of court, he has to first seek the consent in writing either of the Attorney General or the
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Solicitor General. The court further rules that:
Discretion vested in law officers of the court to be used for public purpose in a society governed by the rule of law is justiciable.
Under the Constitution of India, there are positive values like right to life and freedom of speech and
expression, but freedom of speech and expression does not include freedom to distort orders of the
court and present incomplete and a one-sided picture deliberately, which has a tendency to scandalise
the court. The right of criticising, in good faith in private or public, a judgment of the court cannot be
exercised with malice or by attempting to impair the administration of justice. Indeed, freedom of
speech and expression is the life blood of democracy, but this freedom is subject to certain
qualifications. An offence of scandalising the court per se is one such qualification, since that offence
exists to protect the administration of justice and is reasonably justified and necessary to protect the
democratic society.71 Freedom of speech and expression would be subject to Articles 19(2), 129 and
215 of the Constitution, in relation to contempt of court, defamation or incitement to an offence, etc.
Liberty of speech and expression carries within it a corresponding duty and responsibility which puts
limitation on the exercise of that liberty.72 In Noordeen Mohammed v A.K. Gopalan,73 the Kerala High
Court held that the law of contempt as understood in India is a valid law. In the 1952 Act, there was
no definition for contempt of court. In spite of the same, it was held that the same is not violative of
Article 19(1)(a) of the Constitution in view of Articles 19(2) and 215. The law of contempt cannot be
said to be violative of Article 14, for the classification is intelligible, having a rational relation to the
object in the matter of contempt.74 Contempt law also does not violate Article 21.
[Art 129.2.5] Practice and Procedure
1. The power under this Article is a summary power.75

2. The court may proceed suo motu or on the petition of an advocate of the court.76
3. The contemner is not allowed to plead justification or to examine witnesses in defence,72 to
prove that his allegations, e.g., of corruption or dishonesty are true.86
Section 13 of the Contempt of Courts Act, 1971, was amended as per Act 6 of 2006. This Section is
split into two. The former section has been retained as clause (a) and a new provision is added as
clause (b) which makes truth as a ground of defence in contempt proceedings. Clause (b) of section 13
reads thus: “The court may permit in any proceeding for contempt of court, justification by truth as a
valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is
bona fide”.
Criminal contempt of court takes various forms. Scandalising is a form of contempt – picturesquely
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also known in Scotland as “murmuring judges” is intended to preserve public confidence in the
administration of justice by publishing words and conduct which are scurrilously abusive or impugned
impartiality of the courts. O’Higgins Chief Justice in State (DPP) v Walsh77 said:
Such contempt occurs when wild and baseless allegations of corruption or malpractice are made against a court.
In R v Gray,78 it was held to be contempt to say in a newspaper of Darling J, that:
he was an imprudent little man in a “horse-chair’…a microcosm of conceit of empty headlines.
The article went on to say,
No newspaper can exist except upon its merits, a condition from which the Bench, happily for Mr. Justice Darling is exempt.
In R v Editor of News Statesman exparte DPP,79 it was held to be contempt to say that it was
impossible for certain people to hope for a fair trial from Avery J. To commit this type of contempt,
the words have to be directed at a judge in his judicial capacity.80 The risk of judges confusing their
own self-esteem with the interest of justice is more serious here than in other areas of the law of
contempt. It is necessary to bear in mind Lord Atkin’s words:
Justice is not a cloistered virtue, she must be allowed to suffer the scrutiny and respectful, though outspoken comments of ordinary
men.81
In R v Commissioner of Police of the Metropolis exparte Blackburn (No.2),82 for example, wherein
Mr. Quintin Hogg QC MP, as he then was, had published an article in “Punch” criticising of a court’s
decision inaccuracies of fact, provided that they are in good faith and do not impute improper motive
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to those taking part in the administration of justice.83
Sections 3, 4 and 5 of the British Contempt of Courts Act, 1981, provides for defence in contempt
proceedings. Section 5 provides: “A publication made as or as part of a discussion in good faith of
public affairs or other matters of general public interest is not to be treated as a contempt of court
under the strict liability rule if the risk of impediment or prejudice to legal proceedings is merely
“incidental to the discussion”. The normal meaning of “good faith” refers to something done or said or
written with honesty, sincerity and without malice. In order to discover whether a publication has in
fact been made in good faith, it is necessary not only to look at the content of the particular article,
broadcast, etc., but also to investigate into the reasons behind the publication itself.84
Section 10 of the British Contempt of Courts Act, 1981, protects a journalist from revealing the source
of information for which he is responsible unless it is established to the satisfaction of court that the
disclosure is necessary in the interest of justice or national security or for the prevention of disorder or
crime. In Secretary of State for Defence v Guardian Newspaper,85 it was held that disclosure of
identity of the source would only be ordered where this was necessary in order to identify him or her;
and if other means of identification were reasonably readily available, they should be used. But, this
does not mean that all other means of inquiry which might reveal the identity of the source must be
exhausted before disclosure would be ordered. The term “necessary” was held to mean something less
than indispensable, but something more than useful.86 According to learned author Hood Phillips,
there are important differences in the approach of the European Court of Human Rights and British
Courts: the latter sees the need to establish a balance between freedom of expression and justice or
national security, etc. and decides accordingly. The former places freedom of expression above the
other considerations which are not rights but exceptions to the right to freedom of expression which
have to be interpreted narrowly.87
4. At the same time, the procedure must be fair;88 a notice should be issued to the contemner and an
opportunity must be given to him to file an affidavit to state facts and contentions in answer to the
charge.89 There is no need to draw up any formal charge,89 but sufficient particulars must be given.90
5. An apology may be accepted to purge the offence if it reflects sincere remorse and contrition.91
An apology is not a weapon of defence forged to purge the guilt of the offender nor it is intended to
operate as a panacea. It is intended to be evidence of real contriteness, the manly consciousness of a
wrong done, of an enquiry inflicted and the earnest desire to make such reparation as lies in the
wrongdoer’s power.92 An apology tendered must be sought at the earliest opportunity. When tendered
at a belated stage to escape punishment, it will not be accepted especially when the same is not a
product of remorse or contrition.93 If the court is satisfied that an error in any publication was without
any malice or without any intention of disrespect towards the courts or towards any member of the
judiciary, apology may be accepted since court is not hypersensitive in matters relating to contempt of
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courts.94 Apology tendered should be unconditional. Conditional apology in order to avoid conviction
will not be accepted.95
Before taking any action for contempt, it must be shown that the contemner was aware of the order or
the law declared by Supreme Court. If they are not aware of the law laid down by Supreme Court, no
contempt action can be taken.96
Civil contempt is the failure to obey the order of a superior Court of Record which prescribes certain
conduct upon a party to civil action. A civil judge may commit to prison anyone who disregards an
order addressed to him or her. In this way, decrees for specific performance and injunction as well as
writ of habeas corpus and other judicial orders may be enforced by the High Court. The power to
enforce court orders against litigants is not available against the Crown, but ministers of the Crown
and civil servants are liable to be proceeded against for contempt of court in respect of acts or
omission by them personally and it is no defence that what would otherwise constitute a contempt of
court was committed in the discharge or purported discharge of official duties.97 Although civil
contempt is not a criminal offence or a misdemeanor,98 the court may nevertheless commit a
wrongdoer to prison for a fixed period,99 may fine him or her or may order his or her property to be
sequestrated. The Official Solicitor to the Supreme Court is required to review all cases of persons
committed to prison for contempt of Court and may intervene to secure their release.1 The Crown may
not grant a pardon in cases of civil contempt since this would amount to intervening in litigation
between parties.
Conduct which is calculated to interfere with the due administration of justice or to bring the court
into disrepute gives rise to proceedings which are in the nature of criminal proceedings and both civil
and criminal courts may exercise jurisdiction. Although criminal contempt takes various forms and
although it is necessary to protect the working of the court, nevertheless judges should seek to ensure,
in the words of Lord President Normand
that the greatest restraint is all the greater since one of the consequences of contempt of court is to restrict freedom of expression.
But not all judges are so sanguine with concern being expressed in one case that the Contempt of Courts Act, 1981 may have titled
the balance too much in favour of freedom of expression.
Parliament may have redrawn the boundary at a point which would not have been chosen by those people looking at the matter
primarily from the standpoint of the administration of justice.2
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The law protects courts and judges from criticism which might undermine public confidence in the
judiciary, in particular, scurrilous abuse and attack on the integrity or impartiality of a judge.
Proceedings on this ground are rare. More than fifty years have passed since the last successful
prosecution in England and Wales for scandalising the court. Nevertheless, criticism of a court’s
decision may be a contempt if it imputes unfairness and partially to a judge in the discharge of his or
her duties.
Where a colonial newspaper had discussed a variation in sentence in two apparently similar cases,
suggesting that this was due to personal attitude of the judge, the Privy Council set aside the
conviction for contempt. The judgment of Judicial Committee was given by Lord Atkin who said:
But whether the authority and position of an individual judge or the due administration of justice is concerned no wrong is
committed by any member of the public, who exercises the ordinary right of criticising in good faith, in private or public, the
public act in the seat of justice. The path of criticism is a public way, the wrongheaded are permitted to err therein, provided that
members of the public abstain from imputing improper motives to those taking part in the administration of justice and are
genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are
immune. Justice is not a cloistered virtue, she must be allowed to suffer the scrutiny and respectful, even though outspoken,
comment of ordinary men.3
Discussion on the legal merits and social implication of judicial decision is, therefore, not contempt,
even when Queen’s counsel chooses to make sweeping and inaccurate criticism of the Court of
Appeal in the columns of “Punch”.4 This aspect of law has the potential to deter a critic who sought to
show that the judges were biased politically or socially or that a particular court was failing to
administer justice. But today the scope of permissible criticism has widened to judge by the sharp
controversy over the National Industrial Relation Court between 1971 and 1974 by the attacks made
on some of Lord Denning’s decision before his retirement in 1982 and by some of the criticisms of the
Law Lords after the first Spycatcher case in 1987. The Phillimore Committee recommended that
this branch of contempt should be replaced by the offence of publishing matters which imputes improper judicial conduct with the
intention of impairing confidence in the administration of justice,
but this recommendation has wisely not been adopted.
All superior courts have power to punish summarily by imposing fine or imprisonment, violence
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committed or threats uttered in the face of the court. Thus, the judge may punish an attack on anyone
in court or restrain the use of threatening words or scurrilous abuse. The issue of deciding whether an
act constitutes a contempt is for the judge alone. If the act is committed in court, the judge is in a sense
prosecutor, chief witness, judge and jury.
In Morris v Crown Office,5 a group of students demonstrated in support of the Welsh language by
interrupting a sitting of the High Court in London, where they sang, shouted slogan and scattered
pamphlets. After order was restored, the trial judge sentenced some of the students to prison for three
months and fined others. On appeal, the Court of Appeal Civil Division held that a High Court judge
still had the power at common law to commit instantly to prison for criminal contempt and that the
requirement under the Criminal Justice Act, 1967 that prison sentence under six months be suspended
did not apply to committal for contempt. The court did not consider the prison sentence to be
excessive, but having regard to all the circumstances, allowed the appeal against sentence and bound
over two of the appellants to be of good behaviour for one year.
Contempt on the face of the Court includes insulting behaviour,6 disregard to the judge’s ruling and
refusal by a witness to give evidence or to answer question which he or she is required to answer.7 In
Attorney General v Mulholland and Foster,8 two journalists refused to disclose their sources of
information to a tribunal of enquiry appointed after the Admiralty clerk, Vassal had been convicted for
espionage. The tribunal, by statute, had the powers of the High Court, to examine the witnesses. On
appeal against a prison sentence imposed by the High Court to whom the Tribunal had reported to the
journalists, it was held that the journalists had no legal privilege to refuse to disclose sources of
information given to them in confidence, where the information was relevant and necessary to the trial
or inquiry.
Normally when a counsel is engaged and an order is passed in his presence, the law presumes that
counsel might have informed about the order. In such case, plea of lack of knowledge of the order
passed will not be accepted.9
Contempt petition not involving contempt in the face of court, should not be decided without notice to
the alleged contemner and without hearing him. Where Judges themselves are respondents in a
contempt petition, they should not hear the petition on the ground of bias.10
In the case of contempt of Supreme Court, since no law has been made under Schedule VII, List I,
Entry 77, notice of punishment prescribed under the Contempt of Courts Act, 1971, can be taken only
as a guide for the Supreme Court. The extent of punishment as prescribed under section 15 of the Act
will apply only to the High Court and not the Supreme Court.11
[Art 129.2.6] Analogous Provision—
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See Article 215, post, for corresponding power of a High Court.
[Art 129.2.7] Powers conferred by Articles 129 and 215 cannot be abridged by legislation
1. Since the Constitution vests, the Supreme Court and the High Courts [Article 215, post] with the
powers of a court of record, including the power to commit for contempt of itself, these powers cannot
be taken away by any legislation. Thus, the power of the High Court to punish for contempt of itself,
as distinguished from that of a subordinate court, cannot be taken away by legislation and conferred
afresh by virtue of the authority of the Legislature.12
2. For the same reason, the power under Article 129 or 215 is not controlled by anything in the Cr.
P.C.13
It was held that the jurisdiction of the Supreme Court under Article 129 of the Constitution is
independent of the Contempt of Courts Act and the power under Article 129 cannot be denuded,
restricted or limited by Contempt of Courts Act, 1971.14
There are many kinds of contempt. The chief forms are insulting judges, attacks upon them,
commenting on pending proceedings with a tendency to prejudice fair trial, obstruction to officers of
court, witnesses or parties, abusing process of court, breach of duty connected to the court and
scandalising the judges or the court. A contempt may be committed with respect to a single judge or a
single court and in certain circumstances, be committed in respect of the whole judiciary or judicial
system.15 The power of the Supreme Court and the High Court being Courts of Record as embodied in
Articles 129 and 215 respectively, it cannot be restricted and trammelled by any ordinary legislation
including the provisions of the Contempt of Courts Act. Their inherent power is elastic, unfettered and
not subjected to any limit. The power conferred on the Supreme Court and the High Court is an
inherent power and the jurisdiction vested is a special one not derived from any other statute, but
derived only from Articles 129 and 215 of the Constitution of India and, therefore, the constitutionally
vested right cannot be either abridged or abrogated or cut down. Nor can they be controlled or limited
by any statute or by any provision of Code of Criminal Procedure or any Rules. The caution that has
to be observed in exercising this inherent power by summary procedure is that the power should be
used sparingly, that the procedure to be followed should be fair and the contemner should be made
aware of the charges against him and given a reasonable opportunity to defend himself.16 The court’s
power to punish for contempt is a power which is required in furtherance of proper administration of
justice and preserving the authority of the court. The power is expressly preserved by Articles 129 and
215 of the Constitution. That is why the question of contempt is a question which is essentially
between the court and contemner.17 Contempt is a matter between the court and the alleged
contemner. Any person who moves the machinery of the court for contempt only brings it to the notice
of the court certain facts constituting contempt of court. After furnishing such information, he may
still help the court but it must always be borne in mind that in a contempt proceeding there are only
two parties, namely, the court and the contemner.18 It was held therein that the person who had lodged
a complaint was not entitled to any right of appeal because he was not a necessary party in the
contempt proceedings. But in suitable cases, the complainant may invoke the jurisdiction of Supreme
Dinesh Mishra
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Court under Article 136 of the Constitution, in the larger interest of the administration of justice.19
Filing false affidavit or making false statements on oath in court aims at stringing a blow at the Rule
of Law and no court can ignore such conduct which has the tendency to shake public confidence in the
judicial institution because the very structure of an ordered life is put to stake. It would be a great
public disaster if the fountain of justice is allowed to be poisoned by anyone resorting to filing false
affidavits or giving false statements and fabricating false evidence in a court of law.20 The subordinate
court is the very backbone of administration of justice. The Supreme Court would come down with a
heavy hand for preventing the judges of subordinate judiciary of the High Court from being subjected
to scurrilous and indecent attack which scandalise or have the tendency to scandalise or have the
tendency to lower the authority of any court as also such action which interferes or tends to interfere
with due course of any judicial proceeding or tend to obstruct the administration of justice in any
manner. No affront to the majesty of law can be permitted. The fountain of justice cannot be allowed
to be polluted by disgruntled litigant. The protection is necessary for the courts to enable them to
discharge their judicial function without fear.21 The jurisdiction of Supreme Court under Article 129 of
the Constitution is independent of the Contempt of Courts Act, 1971 and the power under Article 129
cannot be denuded, restricted or limited by Contempt of Court Act. Thus, there is no restriction or
limitation on the nature of punishment that the Supreme Court may award while exercising the
contempt jurisdiction.22 It has been laid down by the Supreme Court that the contempt of court is
disobedience of the court by acting in opposition to the authority, justice and dignity thereof. It
signifies a wilful disregard or disobedience of the court’s order; it also signifies such conduct as
tending to bring the authority of the court and administration of law into disrepute.23 Wilful disregard
or disobedience of the court order pre-supposes an awareness of the order that has been disregarded or
disobeyed. In view of the affidavits filed by the contemners stating that they were not aware of law
laid down by the Supreme Court in Prem Shankar Shukla v Delhi Admn.24 and Sunil Gupta v State of
MP25; see also M.P. Dwivedi, Re.,26 where the court refrained from taking any action to punish them
for contempt of court.
In Vinay Chandra Mishra, Re.,27 Supreme Court found that the advocate was guilty of criminal
contempt, having interfered with and obstructed the course of justice by trying to threaten, overawe
and overhear the court by using insulting, disrespectful and threatening language. while awarding
punishment, the advocate was directed to undergo six months simple imprisonment and he was also
suspended from practice for a period of four years. Direction regarding suspension from practice was
challenged on the ground that Supreme Court has no such power under Article 142, when there are
other statutory authorities for punishing professional misconduct. It was held that jurisdiction of the
Supreme Court to punish an advocate for contempt of court is different from jurisdiction to punish an
advocate for professional misconduct, and power under Article 142 could be invoked for punishing
professional misconduct.28

Dinesh Mishra
Page 133 of 170
7 Muskrat v U.S., (1911) 219 US 346 (356).
2003 SC 260] .

Dinesh Mishra
Page 134 of 170
1.015 at p 11.
260] .
[LNIND 1961 SC 206] .
107 : 1958 SCR 1040 [LNIND 1957 SC 134] .
Dinesh Mishra
Page 135 of 170
[LNIND 1977 SC 214] .
SCR 530 [LNIND 1970 SC 40] .
(2006) 2 SCC 1 [LNIND 2006 SC 1219] .
SCR 206 [LNIND 1986 SC 307] .
Dinesh Mishra
Page 136 of 170
40 [LNIND 2001 SC 2120] .
(2001) 4 SCC 558 [LNIND 2001 SC 806] .
Dinesh Mishra
Page 137 of 170
2002 SC 400] .
.

433 [LNIND 1964 SC 346] .
SC 206] : (1961) 31 Com Cases 387 .
[LNIND 1962 SC 337] .
Dinesh Mishra
Page 138 of 170
95 Scott v Scott, (1913) AC 417 .
359 .
Dinesh Mishra
Page 139 of 170
[LNIND 1978 SC 54] .
(1998) 3 JT 269 .
[LNIND 1978 SC 54] .
(1997) 9 JT 492 .
(1990) 2 SCR 110 [LNIND 1990 SC 177] .
2] : 1986 Cr LJ 320 .
24 1 B1 Com 69.
Dinesh Mishra
Page 140 of 170
(2005) 2 SC 8 .
672 .
(2005) 2 SC 8 .
[LNIND 2002 SC 249] (227).
p 164.
Dinesh Mishra
Page 141 of 170
(1977) 4 SCC 193 [LNIND 1977 SC 268] .
175-76.
SC 1118] (9).
(Supp-2) SCR 659.

(paras. 867, 877, 880, PATHAK, J.).
Dinesh Mishra
Page 142 of 170
SCC 87.
63 Golden v U.K., (1970) 1 EHRR 524 .
65 Re., Mc., (1985) AC 528 (HL).
SC 538] .
Dinesh Mishra
Page 143 of 170
11] .
85 VII CAD 853 and 1000.

165.
AIR 1979 SC 478 [LNIND 1978 SC 661] .
Dinesh Mishra
Page 144 of 170
[LNIND 1950 SC 22] : 1950 AIR 27 .
(1955) 349 US 133].


(1978) 1 SCR 423 [LNIND 1977 SC 268] .
Dinesh Mishra
Page 145 of 170
753] : (1997) 6 SCC 339 [LNIND 1997 SC 753] .
[LNIND 1997 SC 753] .
1994 SC 268 [LNIND 1993 SC 1231] : (1993) 4 SCC 441 .

1 SCR 423 [LNIND 1977 SC 268] .
[LNIND 1998 SC 457] : (1998) 3 JT 269 .
Dinesh Mishra
Page 146 of 170
(1988) 6 JT 571 : (1988) 7 Supreme 473 .
1998 SC 930] : (1998) 7 SCC 248 [LNIND 1998 SC 930] .
1169 [LNIND 1953 SC 59] .
8 JT 354 .
II 2nd Edn, pp 1935-1941.
Constitution.

60 M v Home Office, (1994) 1 AC 377 .
67 Re, C. (an Infant), (1939) Ch 363 .
Dinesh Mishra
Page 147 of 170

[LNIND 1978 SC 54] .
457] : (1998) 3 JT 269 .
J).
365 : 1981 Supp SCC 87].
Dinesh Mishra
Page 148 of 170
(1994) 2 SCC 303 [LNIND 1994 SC 160] .
1977 SC 268] .
SCR 659.
Dinesh Mishra
Page 149 of 170
63] .
41 See C6 vol A, pp 349-521.
Constitution Act.


47 supra.

Dinesh Mishra
Page 150 of 170

p 579.


(1971) 1 SCR 697 [LNIND 1970 SC 286] .
206 [LNIND 1986 SC 307] .
206 [LNIND 1986 SC 307] .
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
SCR 347 [LNIND 1975 SC 432] .
Dinesh Mishra
Page 151 of 170
[LNIND 1980 SC 257] .
[LNIND 1953 SC 70] .
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
206 [LNIND 1986 SC 307] .
273 [LNIND 1957 SC 93] .
SC 154] (paras. 950, 1287, 1381, 1586, 1592).
273 [LNIND 1957 SC 93] .
1207] .
(2005) 10 SCC 110 [LNIND 2004 SC 1207] .
Dinesh Mishra
Page 152 of 170
1997 SC 488]: (1997) 3 SCC 261 [LNIND 1997 SC 488].
96 : (1991) 4 JT 361 .
30 STEPHEN’S COMMENTARIES, vol I, pp 58-9; HALSBURY, 3rd Edn, vol 9, p 347.
31 Cf. Gauba v Chief Justice, (1941) FCR 54 (57).
32 See Delhi Judicial Service Association v State of Gujarat, AIR 1991 SC 2176 [LNIND 1991 SC 446]: (1991) 4 SCC 406 [LNIND
1991 SC 446]; M.M. Thomas v State of Kerala, AIR 2000 SC 540 [LNIND 2000 SC 23]: (2000) 1 SCC 666 [LNIND 2000 SC 23].
33 Ravi S. Naik v UOI, AIR 1994 SC 1558 [LNIND 1994 SC 191]: 1994 (Supp-2) SCC 641.
34 JOWITT ON DICTIONARY OF ENGLISH LAW, 1st Edn, p 526.
35 PERMANENT Edn. vol 10, p 429.
36 4th Edn, vol 10, para 709 at p 319.
37 vol XV pp 720-21.
38 See also Delhi Judicial Service Association v State of Gujarat, AIR 1991 SC 2176 [LNIND 1991 SC 446]: (1991) 4 SCC 406
[LNIND 1991 SC 446]; Supreme Court Bar Association v UOI, AIR 1998 SC 1895 [LNIND 1998 SC 455]: (1998) 4 SCC 409
[LNIND 1998 SC 455].
39 See Barada Kanta Mishra v Registrar of Orissa High Court, AIR 1974 SC 710 [LNIND 1973 SC 346]: (1974) 2 SCR 282 [LNIND
1973 SC 346]; see also Chetak Construction Ltd v Om Prakash, AIR 1998 SC 1855 [LNIND 1998 SC 457]: (1998) 4 SCC 577
[LNIND 1998 SC 457] : (1998) 3 JT 269.
40 See Pritam Pal v High Court of MP at Jabalpur through Registrar, AIR 1992 SC 904 [LNIND 1992 SC 182]: (1993) Supp-1 SCC
529; see also D.N. Taneja v Bhajan Lal, (1988) 3 SCC 26 [LNIND 1988 SC 274] : (1988) 2 JT 499; Delhi Judl. Service Assn. v
State of Gujarat, AIR 1991 SC 2176 [LNIND 1991 SC 446]: (1991) 4 SCC 406 [LNIND 1991 SC 446]; S. Mulgaokar, Re., AIR
1978 SC 727 [LNIND 1978 SC 402]: (1978) 3 SCC 339 [LNIND 1978 SC 402] : (1978) 3 SCR 162.
41 See Supreme Court Bar Assn. v UOI, AIR 1998 SC 1895 [LNIND 1998 SC 455](1907) : (1998) 4 SCC 409 [LNIND 1998 SC 455]
: (1998) 3 JT 184.
42 Delhi Judicial Service Assn. v State of Gujarat, AIR 1991 SC 406 : (1991) 4 SCC 406 [LNIND 1991 SC 446].
43 Supreme Court Bar Assn. v UOI, AIR 1998 SC 1895 [LNIND 1998 SC 455](1907) : (1998) 4 SCC 409 [LNIND 1998 SC 455] :
(1998) 3 JT 184.
Dinesh Mishra
Page 153 of 170
44 ITAT v K. Agarwal, AIR 1999 SC 452 [LNIND 1998 SC 1026]: (1999) 1 SCC 16 [LNIND 1998 SC 1026].
45 Vishram Singh Raghubanshi v State of UP, AIR 2011 SC 2275 [LNIND 2011 SC 560]: 2011 (3) JCR 306 (SC) : JT 2011 (6) SC
629 [LNIND 2011 SC 560].
46 See Ram Niranjan Roy v State of Bihar, (2014) 12 SCC 1 : 2014 Cr LJ 2283 (SC).
47 Rajeshwar Singh v Subrata Roy Sahara, AIR 2014 SC 476 : (2014) 14 SCC 257.
48 ITAT v V.K. Agarwal, AIR 1999 SC 452 [LNIND 1998 SC 1026]: (1999) 1 SCC 16 [LNIND 1998 SC 1026].
49 State of Rajasthan v Prakash Chand, AIR 1998 SC 1344 [LNIND 1997 SC 1529]: (1998) 1 SCC 1 [LNIND 1997 SC 1529].
50 MILLER, ON CONTEMPT OF COURT, 3rd Edn 2000 and ARLIDGE, EADY and SMITH ON CONTEMPT OF COURT, 2nd
Edn (1999).
51 Attorney General v Times Newspapers, (1992) 1 AC 191.
52 Attorney General v Leveller Magazine, (1979) AC 440.
53 Attorney General v BBC, (1981) AC 303.
54 See HOOD PHILLIPS and JACKSON ON CONSTITUTIONAL AND ADMINISTRATIVE LAW, 8th Edn (2001), chapter XX,
“Administration of Justice”, at para 20.043 at p 442.
55 M v Home Office, (1994) 1 AC 377 : (1993) 3 WLR 43 ; Also see R v City of London Magistrate Court exparte Green, (1997) 3
All ER 551.
56 See Cobra Golf Ltd v Rata, (1998) chapter 29.
57 Nicholls v Nicholls, (1997) 2 All ER 97; see also Taylor v Ribby Hall Leisure Ltd, (1997) 4 All ER 760.
58 Churchman v Joint Shop Stewards Committee, (1972) 3 All ER 603; Enfield BC v Mahoney, (1983) 2 All ER 760.
59 Milburn, petitioner, 1946 SC 301 .
60 See Cox and Griffiths – Petitioner 1998 SCCR 561 .
Dinesh Mishra
Page 154 of 170
61 See CIVIL LIBERTIES, LEGAL PRINCIPLES OF INDIVIDUAL FREEDOM by EDWIN SHORTS and CLAIRE DE THAN,
1998 Edn., p 311.
62 See CONSTITUTIONAL AND ADMINISTRATIVE LAW by A.W. BRADLEY and K.D. EWING, 13th Edn, 2003, chapter
XVIII, “The Courts and Machinery of Justice” at p 377.
63 Vinny Chandra Misra, Re., (1995) 2 SCC 584 : AIR 1995 SC 2348 : (1995) 2 SCC 584; T. Sudhakar Prasad v Govt. of A.P.,
(2001) 1 SCC 516 [LNIND 2000 SC 1872]; S.K. Sundaram, Re., AIR 2001 SC 2374 [LNIND 2000 KER 575]: (2001) 2 SCC 171
[LNIND 2000 SC 1889]; Mrityunjoy Das v Sayed Hasibur Rahaman, AIR 2001 SC 1293 [LNIND 2001 SC 701]: (2001) 3 SCC 739
[LNIND 2001 SC 701]; J.R. Parashar v Prashant Bhushan, AIR 2001 SC 3395 [LNIND 2001 SC 1850]: (2001) 6 SCC 735
[LNIND 2001 SC 1850]; Chhotu Ram v Urvashi Gulati, AIR 2001 SC 3468 [LNIND 2001 SC 1805]: (2001) 7 SCC 530 [LNIND
2001 SC 1805].
64 Arundhathi Roy, Re., AIR 2002 SC 1375 [LNIND 2002 SC 174]: (2002) 3 SCC 343 [LNIND 2002 SC 174].
65 Amrit Nahata v UOI, AIR 1986 SC 791 [LNIND 1985 SC 183]: (1985) 3 SCC 382 [LNIND 1985 SC 183].
66 Income Tax Appellate Tribunal v K. Agarwal, AIR 1999 SC 452 [LNIND 1998 SC 1026]: (1999) 1 SCC 16 [LNIND 1998 SC
1026].
67 See CIVIL LIBERTIES, LEGAL PRINCIPLES OF INDIVIDUAL FREEDOM by EDWIN SHORTS and CLAIRE DE THAN,
1998 Edn. at p 312-313.
68 Delhi Development Authority v Skipper Construction, (1995) 3 SCC 507 [LNIND 1995 SC 217].
69 Bharat Heavy Electricals Ltd v Asst. Commissioner of Commercial Taxes, AIR 1999 SC 1512 : (1998) 5 SCC 175.
70 Manish Gupta v Gurudas Roy, AIR 1995 SC 1359 : (1995) 3 SCC 559.
71 Ashok Paper Kamgar Union v Dharam Godha, AIR 2004 SC 105 : (2003) 11 SCC 1; see also Akhouri Ramesh Chandra Sinha
(Dr.) v State of Bihar, (1997) 3 SCC 25 [LNINDORD 1997 SC 109]; Employees of Public Enterprises v Arvind Verma, AIR 1998
SC 2862 [LNIND 1998 SC 527]: (1999) 9 SCC 58 [LNIND 1998 SC 527].
72 Ram Avtar Shukla v Arvind Shukla, 1995 (Supp-2) SCC 130; see also Bineet Kumar Singh, Re., AIR 2001 SC 2018 [LNIND 2001
SC 1163]: (2001) 5 SCC 501 [LNIND 2001 SC 1163].
73 See I. Manilal Singh v Dr. H. Borobabu Singh, 1994 (Supp-1) SCC 718 : AIR 1994 SC 505 [LNIND 1993 SC 97].
74 Sukhdev Singh v Chief Justice, AIR 1954 SC 186 [LNIND 1953 SC 108]: 1954 SCR 454 [LNIND 1953 SC 108]; Supreme Court
Bar Association v UOI, AIR 1998 SC 1895 [LNIND 1998 SC 455]: (1998) 4 SCC 409 [LNIND 1998 SC 455]; Ajay Kumar Pandey,
Re, AIR 1997 SC 260 [LNIND 1996 SC 1824]: (1996) 6 SCC 510 [LNIND 1996 SC 1824].
75 S.K. Sarkar v Vinay Chandra Misra, AIR 1981 SC 723 [LNIND 1980 SC 482]: (1981) 1 SCC 436 [LNIND 1980 SC 482].
Dinesh Mishra
Page 155 of 170
76 R.L. Kapur v State of TN, AIR 1972 SC 858 [LNIND 1972 SC 96]: (1972) 1 SCC 651 [LNIND 1972 SC 96]; Delhi Judicial
Service Association v State of Gujarat, AIR 1991 SC 2176 [LNIND 1991 SC 446]: (1991) 4 SCC 406 [LNIND 1991 SC 446];
Pritam Pal v High Court of M.P., AIR 1992 SC 904 [LNIND 1992 SC 182]: 1993 (Supp-1) SCC 529; Supreme Court Bar
Association v UOI, AIR 1998 SC 1895 [LNIND 1998 SC 455]: (1998) 4 SCC 409 [LNIND 1998 SC 455]; see also In the matter of
B. Yegnanarayaniah, AIR 1974 Mad 313 : (1974) I Mad LJ 155.
77 See Naresh Shridhar Mirajkar v State of Maharashtra, AIR 1967 SC 1 [LNIND 1966 SC 74] : (1966) 3 SCR 744 [LNIND 1966
SC 74] ; see also Ganga Bishan v Jai Narain, AIR 1986 SC 441 : (1986) 1 SCC 75 ; Delhi Judicial Service Assn. v State of
Gujarat, AIR 1991 SC 2176 [LNIND 1991 SC 446] : (1991) 4 SCC 406 [LNIND 1991 SC 446] .
78 Hiralal v State of UP, AIR 1954 SC 743 [LNIND 1954 SC 291]: (1955) 1 SCR 677.
79 See West Bengal Administrative Tribunal v S.K. Manobhoor Hussain, 2012 SCW 2250; Priya Gupta v Addl. Secretary, Ministry of
Health and Family Welfare, (2013) Cr LJ 732 : (2012) 12 Scale 289 [LNIND 2012 SC 804].
80 See Om Prakash Jaiswal v D.K. Mittal, AIR 2000 SC 1136 [LNIND 2000 SC 355] : (2000) 3 SCC 171 [LNIND 2000 SC 355] .
81 See Hira Lal Dixit v State of UP, AIR 1954 SC 743 [LNIND 1954 SC 291]: (1955) 1 SCR 677; Brahma Prakash Sharma v State
of UP, AIR 1954 SC 10 [LNIND 1953 SC 59]: (1953) 4 SCR 1169 [LNIND 1953 SC 59]; C.K. Daphthary v O.P.Gupta, AIR 1971
SC 1132 [LNIND 1971 SC 187]: (1971) 1 SCC 626 [LNIND 1971 SC 187]; Pritam Pal v High Court of MP at Jabalpur through
Registrar, AIR 1992 SC 904 [LNIND 1992 SC 182]: (1993) Supp-1 SCC 529.
82 See Rajiv Choudhary v Jagdish Narain Khanna, (1996) 1 SCC 508 [LNIND 1995 SC 1207] : JT 1995 (8) 451; Vineet Kumar
Mathur v UOI, 1996 SCC (1) 119 : JT 1995 (8) 27; Indian Airports Employees Union v Ranjan Chatterjee, AIR 1999 SC 880
[LNIND 1999 SC 78]: (1999) 2 SCC 537 [LNIND 1999 SC 78]; Sankara Lakshminarasimma v Sagi Subba Raju, (2009) 7 SCC 460
[LNIND 2009 SC 1142] : (2009) JT (11) 264.
83 Muthukaruppan v Parithi Ilamvazhuti, AIR 2011 SC 1645 [LNIND 2011 SC 420]: (2011) 5 SCC 496 [LNIND 2011 SC 420].
84 See R.S. Sujatha v State of Karnataka, (2011) 5 SCC 689 [LNIND 2010 SC 1159] : (2011) 1 LW 289; see also Sahdeo v State of
UP, (2010) 3 SCC 705 [LNIND 2010 SC 194].
85 Anup Bhushan Vohra v High Court of Judicature of Calcutta, (2011) 13 SCC 393 [LNIND 2011 SC 920].
86 Maninderjit Singh Bhitta v UOI, (2012) 1 SCC 273; see also E.T. Samp v C.A.N.S. Employees Assn., (2004) 8 SCC 683 [LNIND
2004 SC 1070]; M.C. Mehta v UOI, (2001) 5 SCC 309; Maneyeri Madhavan v Inspector of Police, 1993 (Supp-2) SCC 501 : AIR
1993 SC 356 [LNIND 1993 SC 757]: 1992 (3) Scale 1; Anil Ratan Sarkar v Hirak Ghosh, (2002) 4 SCC 21 [LNIND 2002 SC 193]
: 2002 AIR (SC) 1405.
87 H.G. Rangangoud v State Trading Corp of India Ltd, AIR 2012 SC 490 : (2012) 1 SCC 297.
88 Kanwar Singh Saini v High Court of Delhi, (2012) 4 SCC 307 [LNIND 2011 SC 935] : (2012) 1 LW 680.
89 State of MP v Suresh Narayan Vijayvargirya, (2014) 11 SCC 694.
Dinesh Mishra
Page 156 of 170
90 T.R. Dhananjaya v J.Vasudevan, (1995) 5 SCC 619 [LNIND 1995 SC 831] : 1996 AIR 302; Mohd. Aslam v UOI, (1994) 6 SCC
442 [LNIND 1994 SC 991] : 1995 AIR 548; M.B. Sanghi v High Court of Punjab & Haryana, (1991) 3 SCC 600 [LNIND 1991 SC
333] : 1991 AIR 1834; see also Mridul Dhar (5) v.UOI, (2005) 2 SCC 65 [LNIND 2005 SC 38] : 2005 AIR SC 666.
91 Brahma Prakask v State of UP, (1953) SCR 1169 [LNIND 1953 SC 59] : AIR 1954 SC 10 [LNIND 1953 SC 59].
92 Bathina Ramakrishna v State of Madras, (1952) SCR 425 [LNIND 1952 SC 6] (433) : AIR 1952 SC 149 [LNIND 1952 SC 6] . See
also B.R. Nikunj v Vipin Bansraj Tiwari, (2000) I MPLJ 105.
93 (1928) 44 Times Law Reports 301.
94 The State (DPP) v Walsh, (1981) 1 R 412.
95 Ambard v A.G. of Trinidad and Tobago, (1936) AC 322 : (1936) 1 All ER 704 .
96 Metropolitan Police Commissioner ex parte Blackburn, (1968) 2 All ER 319 .
97 State v Raghbir Sahai, AIR 1967 All 99 .
1 See Supreme Court Bar Assn. v UOI, AIR 1998 SC 1895 [LNIND 1998 SC 455] (1907) : (1998) 4 SCC 409 [LNIND 1998 SC
455] : (1998) 3 JT 184 : (1998) 2 SCR 795 [LNIND 1998 SC 455] ,
2 See Vinay Chandra Mishra, Re. AIR 1995 SC 2348 : (1995) 2 SCC 584 ; Pritam Pal v High Court of MP at Jabalpur through
Registrar, AIR 1992 SC 904 [LNIND 1992 SC 182] : (1993) Supp-1 SCC 529; Ajay Kumar Pandey, Re., AIR 1996 SC 260 :
(1996) 6 SCC 510 [LNIND 1996 SC 1824] : 1996 (Supp-8) SCR 407.
3 Om Prakash Jaiswal v D.K. Mittal, AIR 2000 SC 1136 [LNIND 2000 SC 355] : (2000) 3 SCC 171 [LNIND 2000 SC 355] .
4 See Hira Lal Dixit v State of UP, AIR 1954 SC 743 [LNIND 1954 SC 291] : (1955) 1 SCR 677 ; Brahma Prakash Sharma v State
of UP, AIR 1954 SC 10 [LNIND 1953 SC 59] : (1953) 4 SCR 1169 [LNIND 1953 SC 59] ; C.K. Daphthary v O.P.Gupta, AIR
1971 SC 1132 [LNIND 1971 SC 187] : (1971) 1 SCC 626 [LNIND 1971 SC 187] ; Pritam Pal v High Court of MP at Jabalpur
through Registrar, AIR 1992 SC 904 [LNIND 1992 SC 182] : (1993) Supp-1 SCC 529.
5 See Rajiv Choudhary v Jagdish Narain Khanna, (1996) 1 SCC 508 [LNIND 1995 SC 1207] : JT 1995 (8) 451 ; Vineet Kumar
Mathur v UOI, (1996) 7 SCC 714 [LNIND 1996 SC 177] : JT 1995 (8) 27 ; Indian Airports Employees Union v Ranjan Chatterjee
AIR 1999 SC 880 [LNIND 1999 SC 78] : (1999) 2 SCC 537 [LNIND 1999 SC 78] ; Sankara Lakshminarasimma v Sagi Subba
Raju, (2009) 7 SCC 460 [LNIND 2009 SC 1142] : (2009) JT (11) 264.
6 Mohd. Aslam v UOI, AIR 1995 SC 548 [LNIND 1994 SC 991] : (1994) 6 SCC 442 [LNIND 1994 SC 991] ; Bihar Financial
Service House Construction Co-op. Society Ltd v Gautam Goswamy, (2008) 5 SCC 339 [LNIND 2008 SC 596] (at p 348) : AIR
2008 SC 1975 [LNIND 2008 SC 596] .
7 See Mohd. Aslam v UOI, AIR 1995 SC 548 [LNIND 1994 SC 991] : (1994) 6 SCC 442 [LNIND 1994 SC 991] ; Manilal Singh v
H. Borobabu Singh, AIR 1994 SC 505 [LNIND 1993 SC 97] : 1994 (Supp-1) SCC 718; J. Vasudevan v T.R. Dhananjayan, AIR
1996 SC 137 [LNIND 1995 SC 887] : (1995) 6 SCC 249 [LNIND 1995 SC 887] ; Mohd. Quiser v L.K. Sinha, 1995 (Supp 4) SCC
Dinesh Mishra
Page 157 of 170
283; T.R. Dhananjayan v J.Vasudevan, (1995) 5 SCC 619 [LNIND 1995 SC 831] : AIR 1996 SC 302 [LNIND 1995 SC 831] ;
T.M.A. Pai Foundation v State of Karnataka, AIR 1995 SC 1938 : (1995) 4 SCC 1 [LNIND 1995 SC 1011] ; Vineet Kumar Mathur
v UOI, (1996) 1 SCC 119 [LNIND 1995 SC 1077] : JT 1995 (8) 27 ; Re. Dwivedi, AIR 1996 SC 2299 [LNIND 1996 SC 45] :
(1996) 4 SCC 152 .
8 P.N. Duda v P. Shiv Shankar, AIR 1988 SC 1208 : (1988) 3 SCC 167 .
9 E.M.S. Namboodiripad v T.N. Nambiar, AIR 1970 SC 2015 [LNIND 1970 SC 286] : (1970) 2 SCC 325 [LNIND 1970 SC 286] :
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
10 C.K. Daphthary v O.P.Gupta, AIR 1971 SC 1132 [LNIND 1971 SC 187] : (1971) 1 SCC 626 [LNIND 1971 SC 187] .
11 See also C. Elumalai v A.G.L. Irudayaraj, AIR 2009 SC 2214 [LNIND 2009 SC 623] : (2009) 4 SCC 213 [LNIND 2009 SC 623] .
12 Jaswant Singh v Virendra Singh, AIR 1995 SC 520 [LNIND 1994 SC 1034] : 1995 (Supp-1) SCC 384; Chetak Construction Ltd v
Om Prakash, AIR 1998 SC 1855 [LNIND 1998 SC 457] : (1998) 4 SCC 577 [LNIND 1998 SC 457] : (1998) 3 JT 269 .
13 See Rustomji Cawasjee Cooper v UOI AIR 1970 SC 1318 [LNIND 1970 SC 261] : (1970) 2 SCC 298 [LNIND 1970 SC 40] ;
Perspective Publication Pvt Ltd v State of Maharashtra AIR 1971 SC 221 [LNIND 1968 SC 346] ; C.K. Daphthary v O.P.Gupta
AIR 1971 SC 1132 [LNIND 1971 SC 187] : (1971) 1 SCC 626 [LNIND 1971 SC 187] .
14 D.D.A. v Skipper Construction, (1995) 3 SCC 507 [LNIND 1995 SC 217] : JT 1995 (2) 391 .
15 D.D.A. v Skipper Construction, (1995) 3 SCC 507 [LNIND 1995 SC 217] : JT 1995 (2) 391 ; Ram Avtar Shukla v Arvind Shukla,
1995 (Supp-2) SCC 130 : 1994 (4) Scale 1088 ; Dhananjay Sharma v State of Haryana, AIR 1995 SC 1795 [LNIND 1995 SC 612]
: (1995) 3 SCC 757 [LNIND 1995 SC 612] ; D.C. Saxena v CJI, AIR 1996 SC 2491 : (1996) 5 SCC 216 [LNIND 1996 SC 2653] ;
Re. Bineet Kumar Singh, AIR 2001 SC 2018 [LNIND 2001 SC 1163] : (2001) 3 SCC 501 ; Re. Arundhathi Roy, AIR 2002 SC 1375
16 See Re. Sanjiv Datta, Dy. Secretary, Ministry of Information and Broadcasting, (1995) 3 SCC 619 : JT 1995 (3) SC 538 : 1995 (2)
Scale 704 .
17 Re. Ajay Kumar Pandey, (1996) 6 SCC 510 [LNIND 1996 SC 1824] : AIR 1997 SC 260 [LNIND 1996 SC 1824] ; Also see D.C.
Saxena v CJI, AIR 1996 SC 2481 [LNIND 1996 SC 1083] : (1996) 5 SCC 216 [LNIND 1996 SC 2653] .
18 Sahira Habibullah Sheikh (5) v State of Gujarat, AIR 2006 SC 1367 [LNIND 2006 SC 168] : (2006) 3 SCC 374 [LNIND 2006 SC
168] .
19 P.N. Duda v P. Shiv Shankar, AIR 1988 SC 1208 : (1988) 3 SCC 167 : (1988) 3 SCR 547 .
20 Supreme Court Bar Assn. v UOI, AIR 1998 SC 1895 [LNIND 1998 SC 455] : (1998) 4 SCC 409 [LNIND 1998 SC 455] : (1998) 3
JT 184 .
21 C.K. Daphthary v O.P.Gupta, AIR 1971 SC 1132 [LNIND 1971 SC 187] : (1971) 1 SCC 626 [LNIND 1971 SC 187] .
Dinesh Mishra
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22 Amrit Nahata v.UOI, AIR 1986 SC 791 [LNIND 1985 SC 183] : (1985) 3 SCC 382 [LNIND 1985 SC 183] .
23 P.N. Duda v P. Shiv Shankar, AIR 1988 SC 1208 : (1988) 3 SCC 167 : (1988) 3 SCR 547 .
24 Ambard v AG for Trinidad and Tobago, AIR 1936 PC 141 [LNIND 1936 PC 12]
25 See J.R. Parashar v Prasant Bhushan, AIR 2001 SC 3395 [LNIND 2001 SC 1850] : (2001) 6 SCC 735 [LNIND 2001 SC 1850] :
(2001) 7 JT 189 (195).
26 Pallav Seth v Custodian, AIR 2001 SC 2763 [LNIND 2001 SC 1662] : (2001) 7 SCC 549 [LNIND 2001 SC 1662] ; see also Ram
Prem Yadav v Mahendra Pratap Yadav, (2007) 12 SCC 385 [LNIND 2007 SC 1020] (389).
28 Brahma Prakask v State of UP, (1953) SCR 1169 [LNIND 1953 SC 59] : AIR 1954 SC 10 [LNIND 1953 SC 59] ; Bathina
Ramakrishna v State of Madras, (1952) SCR 425 [LNIND 1952 SC 6] (433) : AIR 1952 SC 149 [LNIND 1952 SC 6] .
29 Dr. D.C. Saxena v Hon’ble Chief Justice of India, AIR 1996 SC 2481 [LNIND 1996 SC 1083] : (1996) 5 SCC 216 [LNIND 1996
SC 2653] ; see also Re. Ajay Kumar Pande, AIR 1997 SC 260 [LNIND 1996 SC 1824] : (1996) 6 SCC 510 [LNIND 1996 SC 1824]
; Shamsher Singh Bedi v High Court of Punjab and Haryana, AIR 1995 SC 1974 : (1996) 7 SCC 99 .
30 C.S. Karnan, 2017 (7) Scale 324 : (2017) 5 Mad LJ 347.
31 R v Gray, ((1900) 2 QB 36 .
32 Daphtary v Gupta, AIR 1971 SC 1132 [LNIND 1971 SC 187] : 1971 Supp SCR 76 : (1971) 1 SCC 626 [LNIND 1971 SC 187]
(paras 61, 66, 69); Sanghi v High Court, (1991) 3 SCC 600 [LNIND 1991 SC 333] : AIR 1991 SC 1834 [LNIND 1991 SC 333] :
(1991) 3 SCR 312 [LNIND 1991 SC 333] (para 11).
33 Namboodiripad v Nambiar, AIR 1970 SC 2015 [LNIND 1970 SC 286] : (1971) 1 SCR 697 [LNIND 1970 SC 286] : (1970) 2 SCC
325 [LNIND 1970 SC 286] (para 33).
35 Gaya Singh v Ram Bheja, AIR 1959 Punj 319 (321). See also Registrar, Assam High Court v Bharat Chandra Das, AIR 1962
Assam 96 .
36 Amrit Nahata v UOI, AIR 1986 SC 791 [LNIND 1985 SC 183] (793) : 1985 SCR Supl. (1) 561.
37 Re Times of India, (1953) SCR 215 .
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38 E.M.S. Namboodiripad v T.N. Nambiar, AIR 1970 SC 2015 [LNIND 1970 SC 286] (2018) : (1970) 2 SCC 325 [LNIND 1970 SC
286] .
39 Income Tax Appellate Tribunal v K. Agarwal, AIR 1999 SC 452 [LNIND 1998 SC 1026] : (1999) 1 SCC 16 [LNIND 1998 SC
1026] .
40 Vasudevan J v T.R. Dhananjaya, (1995) 6 SCC 249 [LNIND 1995 SC 887] : 1996 AIR 137 .
41 Rama Dayal Markarha v State of MP, AIR 1978 SC 921 [LNIND 1978 SC 103] : (1978) 2 SCC 630 [LNIND 1978 SC 103] .
42 Narmada Bachao Andolan v UOI, AIR 1999 SC 3345 [LNIND 1999 SC 946] : (1999) 8 SCC 308 [LNIND 1999 SC 946] .
43 State v Rajeshwari Prasad, AIR 1966 All 588 [LNIND 1966 ALL 48] .
44 Rex v C.B.S. Nayar, AIR 1950 All 549 [LNIND 1950 ALL 18] .
45 Brahma Prakash Sharma v State of UP, AIR 1954 SC 10 [LNIND 1953 SC 59] : 1953 SCR 1169 [LNIND 1953 SC 59] .
46 S.N. Chakraborty v Bimalendu Majumdar, AIR 1972 Cal 352 [LNIND 1971 CAL 100] : Ram Surat Singh v Shiv Kumar Pandey,
AIR 1971 All 170 .
47 Rustom Cawasjee Cooper v UOI, AIR 1970 SC 1318 [LNIND 1970 SC 261] : (1970) 2 SCC 298 [LNIND 1970 SC 40] ;
Perspective Publications v State of Maharashtra, AIR 1971 SC 221 [LNIND 1968 SC 346] (1969) 2 SCR 779 [LNIND 1968 SC
346] ; C.K. Daphthary v O.P. Gupta, AIR 1971 SC 1132 [LNIND 1971 SC 187] : (1971) 1 SCC 626 [LNIND 1971 SC 187] .
48 P.N. Duda v P. Shiv Shanker, AIR 1988 SC 1208 : (1988) 3 SCC 167 .
49 Padmahasini v C.R. Srinivas, AIR 2000 SC 68 [LNIND 1999 SC 1512] : (1999) 8 SCC 711 [LNIND 1999 SC 1512] .
50 Sham Lal, Re, AIR 1978 SC 489 [LNIND 1978 SC 403] : (1978) 2 SCR 581 : (1978) 2 SCC 479 [LNIND 1978 SC 403] (paras 1,
26).
51 D.D.A. v Skipper Construction, (1995) 3 SCC 507 [LNIND 1995 SC 217] : JT 1995 (2) 391 . See also D.D.A. v Skipper
Construction (1995) 3 SCC 507 [LNIND 1995 SC 217] .
52 Mohd. Quaiser v L.K. Sinha, 1993 (Supp-4) SCC 283 : JT 1995 (9) 133 .
53 J. Vasudevan v T.R. Dhananjayan, AIR 1996 SC 137 [LNIND 1995 SC 887] : (1995) 6 SCC 249 [LNIND 1995 SC 887] .
54 T.M.A. Pai Foundation v State of Karnataka, AIR 1995 SC 1938 : (1995) 4 SCC 1 [LNIND 1995 SC 1011] .
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55 See Ram Avtar Shukla v Arvind Shukla, 1995 (Supp-2) SCC 130 : 1994 (4) Scale 1088 .
56 Jaspal Singh v State of UP, 1995 (Supp-3) SCC 234.
57 E.M.S. Namboodiripad v T.N. Nambiar, AIR 1970 SC 2015 [LNIND 1970 SC 286] (at 2018) : (1970) 2 SCC 325 [LNIND 1970
SC 286] : (1971) 1 SCR 697 [LNIND 1970 SC 286] (at 702).
58 Legal Remembrancer v Buchte, (1953) ILR 32 (Patna) 1069 (at 1091); Perspective Publication Ltd v State of Maharashtra, (1969)
2 SCR 779 [LNIND 1968 SC 346] (791) : AIR 1971 SC 221 [LNIND 1968 SC 346] .
59 Re. The Editor, Printer and Publishers of Times of India, AIR 1953 SC 75 (at 76) : (1953) SCR 215 (at 218).
60 Re. The Editor, Printer and Publishers of Times of India, AIR 1953 SC 75 : (1953) SCR 215 (at 217).
61 See Brahma Prakash Sharma v State of UP, AIR 1954 SC 10 [LNIND 1953 SC 59] : (1953) 4 SCR 1169 [LNIND 1953 SC 59] (at
1176).
62 Perspective Publication Pvt Ltd v State of Maharashtra, AIR 1971 SC 221 [LNIND 1968 SC 346] : 1969 SCR (2) 779 ; Brahma
Prakash Sharma v State of UP, AIR 1954 SC 10 [LNIND 1953 SC 59] : (1953) 4 SCR 1169 [LNIND 1953 SC 59] (at p 1178).
63 Re. Hiralal Dixit, AIR 1954 SC 743 [LNIND 1954 SC 291] (at p 746) : (1955) 1 SCR 677 (at p 685).
64 Re. Hiralal Dixit, AIR 1954 SC 743 [LNIND 1954 SC 291] (at p 746) : (1955) 1 SCR 677 (at pp 684-685).
65 See M.Y. Shareef and others v The Hon’ble Judges of High Court at Nagpur, AIR 1955 SC 19 [LNIND 1954 SC 131] (at p 23) :
(1955) 1 SCR 757 [LNIND 1954 SC 131] (at p 765).
66 R.C. Cooper v UOI, AIR 1970 SC 1318 [LNIND 1970 SC 261] (1320) : (1971) 1 SCR 697 [LNIND 1970 SC 286] (713).
67 E.M.S. Nambudiripad v T.N. Nambiar, AIR 1970 SC 2015 [LNIND 1970 SC 286] : (1970) 2 SCC 325 : (1971) 1 SCR 697
[LNIND 1970 SC 286] .
68 Ram Pratap Sharma v Dayanand, AIR 1977 SC 809 [LNIND 1976 SC 274] : (1977) 1 SCR 242 [LNIND 1976 SC 274] .
69 See Aligarh Municipality v E.T. Mazdoor Union, AIR 1970 SC 1767 : (1970) 3 SCC 98 .
70 See B.K. Kor v Chief Justice, AIR 1961 SC 1367 [LNIND 1961 SC 105] : (1962) 1 SCR 397 : (1961) 2 SCJ 633 .
71 See Ram Pratap Sharma v Dayanand, AIR 1977 SC 809 [LNIND 1976 SC 274] (812) : (1977) 1 SCR 242 [LNIND 1976 SC 274] .
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72 K.R. Shenoy v Udipi Municipality, AIR 1976 SC 994 [LNIND 1974 SC 225] (996); see also R.K. Garg v State of HP, AIR 1981
SC 1382 [LNIND 1981 SC 247] : (1981) 3 SCR 536 [LNIND 1981 SC 247] .
73 See C.K. Daphthary v O.P.Gupta, AIR 1971 SC 1132 [LNIND 1971 SC 187] (1149) : (1971) 1 SCC 626 [LNIND 1971 SC 187] :
(1971) Supp SCR 76.
74 See C.K. Daphthary v O.P.Gupta (supra).
75 E.M.S. Namboodiripad v T.N. Nambiar, AIR 1970 SC 2015 [LNIND 1970 SC 286] : (1970) 2 SCC 325 : (1971) 1 SCR 697
[LNIND 1970 SC 286] .
76 See Narmada Bachao Andolan v UOI, AIR 1999 SC 3345 [LNIND 1999 SC 946] : (1999) 8 SCC 308 [LNIND 1999 SC 946] ;
Also see Re. D.C. Saxena, AIR 1996 SC 2481 [LNIND 1996 SC 1083] : (1996) 5 SCC 216 [LNIND 1996 SC 2653] .
77 Supreme Court Bar Assn. v.UOI, (1998) 4 SCC 409 [LNIND 1998 SC 455] , 420-421 : 1998 AIR 1895 : 1998 (2) SCR 795
[LNIND 1998 SC 455] .
78 Delhi Judl. Service Assn. v State of Gujarat, 1991 AIR 2176 : 1991 SCR (3) 936 .
79 Pritam Pal v High Court of MP at Jabalpur through Registrar, AIR 1992 SC 904 [LNIND 1992 SC 182] : (1993) Supp-1 SCC
529.
80 E.M.S. Namboodiripad v T.N. Nambiar, AIR 1970 SC 2015 [LNIND 1970 SC 286] (2018) : (1970) 2 SCC 325 [LNIND 1970 SC
286] .
81 Balogh v St.Albans Crown Court, (1975) 1 QB 73 .
82 See Watt v Ligertwood, (1874) LR 2 SC & D 361.
83 Morris v Crown Office, (1970) 2 QB 114 : (1970) 1 All ER 1079 .
84 Attorney General v Butterworth, (1963) 1 QB 696 : (1962) 3 All ER 326 CA.
85 Attorney General v Mulholland, (1963) 2 QB 477 (487) : (1963) 1 All ER 767 .
86 See BLACKSTONE COMMENTARIES at p 24.
87 See BOUVIRES ON LAW DICTIONARY at p 713.
88 BOUVIRES ON LAW DICTIONARY at p 713.
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89 See Barada Kanta Mishra v Registrar of Orissa High Court, AIR 1974 SC 710 [LNIND 1973 SC 346] : (1974) 1 SCC 374
[LNIND 1973 SC 346] : (1974) 2 SCR 282 [LNIND 1973 SC 346] ; see also Chetak Construction Ltd v Om Prakash, AIR 1998 SC
1855 [LNIND 1998 SC 457] : (1998) 4 SCC 577 [LNIND 1998 SC 457] : (1998) 3 JT 269 .
90 See Pritam Pal v High Court of MP at Jabalpur through Registrar, AIR 1992 SC 904 [LNIND 1992 SC 182] : (1993) Supp-1
SCC 529; D.N. Taneja v Bhajan Lal, (1988) 3 SCC 26 [LNIND 1988 SC 274] : (1988) 3 SCR 888 [LNIND 1988 SC 274] : (1988) 2
JT 499 ; S. Mulgaokar, Re., AIR 1978 SC 727 [LNIND 1978 SC 402] : (1978) 3 SCC 339 [LNIND 1978 SC 402] : (1978) 3 SCR
162 ; Delhi Judl. Service Assn. v State of Gujarat, AIR 1991 SC 2176 [LNIND 1991 SC 446] : (1991) 4 SCC 406 [LNIND 1991 SC
446] : (1991) 3 SCR 936 [LNIND 1991 SC 446] .
455] : (1998) 3 JT 184 .
92 Commissioner, Agra v Rohtas Singh, AIR 1998 SC 685 [LNIND 1997 SC 1576] : (1998) 1 SCC 349 [LNIND 1997 SC 1576] :
(1998) 2 Ker LT 6 (SN).
93 D.N. Taneja v Bhajan Lal, (1988) 3 SCC 26 [LNIND 1988 SC 274] : (1988) 3 SCR 888 [LNIND 1988 SC 274] : (1988) 2 JT 499 .
94 See State of Maharashtra v Mahboob S. Allibhoy, AIR 1996 SC 2131 [LNIND 1996 SC 756] : (1996) 4 SCC 411 [LNIND 1996
SC 756] : (1996) 4 JT 151 .
95 Dhananjay Sharma v State of Haryana, AIR 1995 SC 1795 [LNIND 1995 SC 612] : (1995) 3 SCC 759 ; Chandra Shashi v Anil
Kumar Verma, (1994) 7 JT 459 : (1994) 4 Scale 944 : (1995) SCC (Criminal) 239.
455] : (1998) 3 JT 184 ; Vinay Chandra Mishra, Re., AIR 1995 SC 2348 : (1995) 2 JT 587 .
97 Delhi Judl. Service Assn., Tis Hazari Court, Delhi v State of Gujarat, AIR 1991 SC 2176 [LNIND 1991 SC 446] : (1991) 4 SCC
406 [LNIND 1991 SC 446] : (1991) 3 SCR 936 [LNIND 1991 SC 446] .
1 Baradakanta Mishra, Ex-Commissioner of Endowments v Bhimsen Dixit, AIR 1972 SC 2466 [LNIND 1972 SC 471] : (1973) 1
SCC 446 [LNIND 1972 SC 471] : (1973) 2 SCR 495 [LNIND 1972 SC 471] ; see also M.P. Dwivedi, Re., AIR 1996 SC 2299
[LNIND 1996 SC 45] : (1996) 4 SCC 152 .
2 Prem Shankar Shukla v Delhi Admn., AIR 1980 SC 1535 [LNIND 1980 SC 215] : (1980) 3 SCC 526 [LNIND 1980 SC 215] .
3 Sunil Gupta v State of MP, (1990) 2 SCR 871 [LNIND 1990 SC 292] : 1990 SCC (Criminal) 440.
4 M.P. Dwivedi’s case, AIR 1996 SC 2299 [LNIND 1996 SC 45] : (1996) 4 SCC 152 .
5 Gyan Singh v Ram Bheja, AIR 1959 Punj 319 (321).
6 Re, Times of India, (1953) SCR 215.
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Page 163 of 170
(paras 61, 66, 69).
8 Pratap Singh v Gurbaksh, AIR 1962 SC 1172 [LNIND 1962 SC 36]: 1962 (Supp-2) SCR 838.
9 Saibal Kumar Gupta v B.K. Sen, AIR 1961 SC 633 [LNIND 1961 SC 17]: (1961) 3 SCR 460 [LNIND 1961 SC 17].
10 Hoshiar Singh v Gurbachan Singh, AIR 1962 SC 1089 [LNIND 1962 SC 63]: 1962 (Supp-3) SCR 127.
11 Shareef v Judges, (1955) 1 SCR 757 [LNIND 1954 SC 131] : AIR 1955 SC 19 [LNIND 1954 SC 131].
12 Balogh v Crown Court, (1974) 3 All ER 283.
13 Morris v Crown Office, (1970) 2 QB 114 (CA) : (1970) 1 All ER 1079.
14 R v Montgomery, (1995) 2 All ER 28 (CA) : (1995) 2 Cr App R 23.
15 Balogh v St. Albans Crown Court, (1975) QB 73 (CA).
16 Hood Phillips and Jackson, Constitutional and Administrative Law, 8th Edn, p 447.
17 Morris v Crown Office, (1970) 2 QB 114 : (1970) 1 All ER 1079.
18 See R v Powell, (1994) 98 Cr. Appeal R.224.
19 R v Montgomery, (1995) 2 Crl.App. R23 : (1995) 2 All ER 28 (CA).
20 Attorney General v Mulholland and Foster, (1963) QB 477 : (1963) 1 All ER 767; see also Senior v Holdsworth, (1976) QB 23.
21 State (DPP) v Walsh, (1981) IR 412 (421).
22 R v Editor of News Statesman exparte DPP, (1928) 44 TLR 301.
23 Badry v DPP, (1983) 2 AC 297 (PC) : 1982 UKPC 1.
24 Ambard v Attorney General for Trinidad and Tobago, (1936) PC 323 (335).
25 R v Commissioner of Police of the Metropolis exparte Blackburn (No.2), (1968) 2 QB 150 : (1968) 1 All ER 763.
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Page 164 of 170
26 See Attorney General v Associated Newspapers Ltd, (1994) 2 AC 238 : (1994) 2 WLR 277.
27 R v Young, (1995) QB 344 : (1995) 3 WLR 772.
28 Attorney General v Associated Newspapers Ltd, (1994) 2 AC 238 (HL) : 1994) 2 WLR 277.
29 R v Socialist Workers Printers and Publishers Ltd exparte Attorney General, (1975) QB 637 : (1975) 1 All ER 142 DG.
30 Attorney General v Leveller Magazine Ltd, (1979) AC 440 : (1978) 3 All ER 731.
31 Reference: Attorney General v Butterworth, (1963) 1 QB 696 : (1962) 3 All ER 326 CA.
32 See R v Powell, (1994) 98 Cr App R 224.
35 Moore v Clerk of Assize, Bristol, (1972) 1 All ER 58.
36 Attorney General v Butterworth, (1963) 1 QB 696.
37 See also Morris v Crown Officer, (1970) 2 QB 114.
38 R v Powell, (1994) 98 Cr. Appeal. Rule 224.
39 See R v Montgomery, (1995) 2 Cr Appeal. Rule 23.
40 Cf. B.K. Kar v Chief Justice of Orissa, AIR 1961 SC 1367 [LNIND 1961 SC 105] (1370) : (1962) 1 SCR 319 [LNIND 1961 SC
105] .
41 Cf. S.S. Roy v State of Orissa, AIR 1960 SC 190 .
42 Rizan-ul-Hasan v State of UP, (1953) SCR 581 [LNIND 1953 SC 16] : AIR 1953 SC 185 [LNIND 1953 SC 16].
43 Mrityunjoy Das v Sayed Hasibur Rahaman, AIR 2001 SC 1293 [LNIND 2001 SC 701]: (2001) 3 SCC 739 [LNIND 2001 SC 701];
Chhotu Ram v Urvashi Gulati, AIR 2001 SC 3468 [LNIND 2001 SC 1805]: (2001) 7 SCC 530 [LNIND 2001 SC 1805].
44 Suresh Chandra Poddar v Dhani Ram, (2002) 1 SCC 766 [LNIND 2001 SC 2785] : AIR 2002 SC 439 [LNIND 2001 SC 2785].
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Page 165 of 170
45 Cf. B.K. Kar v Chief Justice of Orissa, AIR 1961 SC 1367 [LNIND 1961 SC 105](1370) : (1962) 1 SCR 319 [LNIND 1961 SC
105].
46 Hira Lal Dixit v State of UP, AIR 1954 SC 743 [LNIND 1954 SC 291]: (1955) 1 SCR 677; Brahma Prakash Sharma v State of
UP, AIR 1954 SC 10 [LNIND 1953 SC 59]: (1953) 4 SCR 1169 [LNIND 1953 SC 59]; C.K. Daphthary v O.P.Gupta, AIR 1971 SC
1132 [LNIND 1971 SC 187]: (1971) 1 SCC 626 [LNIND 1971 SC 187]; Pritam Pal v High Court of MP at Jabalpur through
Registrar, AIR 1992 SC 904 [LNIND 1992 SC 182]: (1993) Supp-1 SCC 529.
47 Mohd. Aslam v UOI, AIR 1995 SC 548 [LNIND 1994 SC 991]: (1994) 6 SCC 442 [LNIND 1994 SC 991]; Bihar Financial Service
House Construction Co-op. Society Ltd v Gautam Goswamy, (2008) 5 SCC 339 [LNIND 2008 SC 596] (348): AIR 2008 SC 1975
[LNIND 2008 SC 596].
48 Arundhati Roy, Re., AIR 2002 SC 1375 [LNIND 2002 SC 174]: (2002) 3 SCC 343 [LNIND 2002 SC 174].
49 E.M. Sankaran Namboodiripad v T. Narayanan Nambiar, AIR 1970 SC 2015 [LNIND 1970 SC 286]: (1970) 2 SCC 325 [LNIND
1970 SC 286].
50 J.R. Parashar v Prasant Bhushan, AIR 2001 SC 3395 [LNIND 2001 SC 1850]: (2001) 6 SCC 735 [LNIND 2001 SC 1850].
51 See Aswini Kumar Ghose v Arabinda Bose And Anr., AIR 1953 SC 75 : (1953) SCR 215 (217).
52 Jaswant Singh v Virendra Singh, AIR 1995 SC 520 [LNIND 1994 SC 1034] : 1995 (Supp-1) SCC 384; see also Chetak
Construction Ltd v Om Prakash, AIR 1998 SC 1855 [LNIND 1998 SC 457] : (1998) 4 SCC 577 [LNIND 1998 SC 457] : (1998) 3
JT 269 .
53 E.M.S. Namboodiripad v T.N. Nambiar, AIR 1970 SC 2015 [LNIND 1970 SC 286]: (1970) 2 SCC 325 [LNIND 1970 SC 286] :
(1971) 1 SCR 697 [LNIND 1970 SC 286].
54 Rustomji Cawasjee Cooper v UOI, AIR 1970 SC 1318 [LNIND 1970 SC 261]: (1970) 2 SCC 289; Perspective Publication Pvt Ltd
v State of Maharashtra, AIR 1971 SC 221 [LNIND 1968 SC 346]: 1969 SCR (2) 779; C.K. Daphthary v O.P.Gupta, AIR 1971 SC
1132 [LNIND 1971 SC 187]: (1971) 1 SCC 626 [LNIND 1971 SC 187].
55 Re. under Article 143. Keshav Singh’s case, AIR 1965 SC 745 : 1965 (1) SCR 413.
56 Arundati Roy, Re., AIR 2002 SC 1375 [LNIND 2002 SC 174]: (2002) 2 SCC 343 : (2002) 2 SCR 213; But see Zahira Habibullah
Sheikh v State of Gujarat, AIR 2006 SC 1367 [LNIND 2006 SC 168]: (2006) 3 SCC 374 [LNIND 2006 SC 168].
57 Re. S. Mulgoakar, AIR 1978 SC 727 [LNIND 1978 SC 402]: (1978) 3 SCC 339 [LNIND 1978 SC 402].
58 Rizwan-ul-Hassan v State of UP, AIR 1953 SC 185 [LNIND 1953 SC 16]: (1953) SCR 581 [LNIND 1953 SC 16]; Shereef v
Judges, AIR 1955 SC 19 [LNIND 1954 SC 131]; (1955) 1 SCR 767.
59 D.D.A. v Skipper Construction, (1995) 3 SCC 507 [LNIND 1995 SC 217] : JT 1995 (2) 391.
Dinesh Mishra
Page 166 of 170
61 Re. Sanjiv Dutta, Dy. Secretary, Ministry of Information and Broadcasting, (1995) 3 SCC 619 : 1995 Cr LJ 2910 : JT 1995 (3) SC
538.
62 Re. Ajay Kumar Pandey, (1996) 6 SCC 510 [LNIND 1996 SC 1824] : AIR 1997 SC 260 [LNIND 1996 SC 1824]; D.C. Saxena v
Hon’ble Chief Justice of India, AIR 1996 SC 2481 [LNIND 1996 SC 1083]: (1996) 5 SCC 216 [LNIND 1996 SC 2653]; Re. Bineet
Kumar Singh, AIR 2001 SC 2018 [LNIND 2001 SC 1163]: (2001) 3 SCC 501; Re. Arundhathi Roy, AIR 2002 SC 1375 [LNIND
2002 SC 174]: (2002) 3 SCC 343 [LNIND 2002 SC 174].
63 Zahira Habibullah Sheikh (5) v State of Gujarat, AIR 2006 SC 1367 [LNIND 2006 SC 168]: (2006) 3 SCC 374 [LNIND 2006 SC
168].
64 Re. Harjit Singh, (1996) 6 SCC 446.
SCR 76.
67 P.N. Duda v P. Shiv Shankar, AIR 1988 SC 1208 : (1988) 3 SCC 167 : (1988) 3 SCR 547.
SCR 76.
69 Amrit Nahata vUOI, AIR 1986 SC 791 [LNIND 1985 SC 183]: (1985) 3 SCC 382 [LNIND 1985 SC 183].
70 See J.R. Parashar v Prasant Bhushan, AIR 2001 SC 3395 [LNIND 2001 SC 1850]: (2001) 6 SCC 735 [LNIND 2001 SC 1850] :
(2001) 7 JT 189 (at 195).
71 Narmada Bachao Andolan v UOI, AIR 1999 SC 3345 [LNIND 1999 SC 946]: (1999) 8 SCC 308 [LNIND 1999 SC 946].
72 Dr. D.C. Saxena v Hon’ble Chief Justice of India, AIR 1996 SC 2481 [LNIND 1996 SC 1083]: (1996) 5 SCC 216 [LNIND 1996
SC 2653]. See also C. Ravichandran Iyer v Justice A.M. Bhattacharjee, (1995) 5 SCC 457 [LNIND 1995 SC 876].
73 Noordeen Mohammed v A.K. Gopalan, AIR 1968 Ker 301 [LNIND 1968 KER 8].
74 Sher Singh v Raghupati, AIR 1968 Pun 217 (FB); see also Advocate General of Andhra Pradesh v Ramanarao, AIR 1967 AP 299
[LNIND 1965 AP 277].
75 Hiralal v State of UP, AIR 1954 SC 743 [LNIND 1954 SC 291] : (1955) 1 SCR 677 .
Dinesh Mishra
Page 167 of 170
76 Daphtary v Gupta, AIR 1971 SC 1132 [LNIND 1971 SC 187] : 1971 Supp SCR 76 : (1971) 1 SCC 626 [LNIND 1971 SC 187]
(paras 61, 66, 69); Sanghi v High Court, (1991) 3 SCC 600 [LNIND 1991 SC 333] : AIR 1991 SC 1834 [LNIND 1991 SC 333] :
(1991) 3 SCR 312 [LNIND 1991 SC 333] (para 11).
77 State (DPP) v Walsh, (1981) IR 412 (421).
78 R v Gray, (1900) 2 QB 36.
79 R v Editor of News Statesman exparte DPP, (1928) 44 TLR 301.
80 Badry v DPP, (1983) 2 AC 297 (PC) : (1982) UKPC 1.
81 Ambard v Attorney General for Trinidad and Tobago, (1936) PC 323 (335).
82 R v Commissioner of Police of the Metropolis exparte Blackburn (No.2), (1968) 2 QB 150 : (1968) 2 W.L.R. 1204.
83 See Hood Phillips and Jackson, Constitutional and Administrative Law, 8th Edn, p 445.
84 See Lauhro, Re., (1990) 2 AC 194 ; R v Hislop, (1991) 1 All ER 911.
85 Secretary of State for Defence v Guardian Newspaper, 1985 AC 339 : (1984) 3 All ER 601.
86 Re. An Enquiry under the Cos Security (Insider Dealing) Act, 1985, (1988) 1 All ER 203; see also X v Morgan Grampion
Publishers, (1991) AC 1 : (1991) 2 All ER 1 (HC).
87 See Sunday Times v U.K., (1979) 2 EHRR 245; see also Goodwin v U.K., (1996) 22 EHRR 123; Sanders v Punch, (1998) 1 WLR
986; John v Express Newspapers, (2003) 3 All ER 257; Camelot Group Plc. v Centaur Ltd, (1999) QB 124; see HOOD PHILLIPS
and JACKSON ON CONSTITUTIONAL AND ADMINISTRATIVE LAW, 8th Edn (2001) chapter XXV, “Freedom of
Expression” para 25.016 at pp 583-84; see also Goodwin v U.K., (1996) 22 EHRR 123.
88 Cf. Sukhdev v Chief Justice, (1954) SCR 454 [LNIND 1953 SC 108] (463) : AIR 1954 SC 186 [LNIND 1953 SC 108].
(paras 61, 66, 69); Sanghi v High Court, (1991) 3 SCC 600 [LNIND 1991 SC 333] : AIR 1991 SC 1834 [LNIND 1991 SC 333]:
(1991) 3 SCR 312 [LNIND 1991 SC 333] (para 11).
90 Cf. Nagar Mahapalika v Mohan, (1966) All WR 179 (SC).
91 Shareef v Judges, (1955) 1 SCR 757 [LNIND 1954 SC 131] : AIR 1955 SC 19 [LNIND 1954 SC 131]; Sanghi v High Court, (1991)
3 SCC 600 [LNIND 1991 SC 333] : AIR 1991 SC 1834 [LNIND 1991 SC 333]: (1991) 3 SCR 312 [LNIND 1991 SC 333] (para
12).
92 Delhi Development Authority v Skipper Construction, (1995) 3 SCC 507 [LNIND 1995 SC 217].
Dinesh Mishra
Page 168 of 170
93 M.C. Mehta v UOI, (2003) 5 SCC 376 [LNIND 2003 SC 384].
94 Harijai Singh, Re., AIR 1997 SC 73 [LNIND 1996 SC 1480]: (1996) 6 SCC 466 [LNIND 1996 SC 1480].
95 Ram Avtar Shukla v Arvind Shukla, 1995 (Supp-2) SCC 130; Dhiraj Kulshestra v Rajasthan High Court, (1999) 5 SCC 647;
Radha Mohan Lal v Rajasthan High Court, AIR 2003 SC 1467 [LNIND 2003 SC 178]: (2003) 3 SCC 427 [LNIND 2003 SC 178];
see also Anil Panjawani, Re., AIR 2003 SC 2177 [LNIND 2003 SC 505]: (2003) 7 SCC 375 [LNIND 2003 SC 505].
96 Re. M.P. Dwivedi, AIR 1996 SC 2299 [LNIND 1996 SC 45]: (1996) 4 SCC 152.
97 M v Home Office, (1994) 1 AC 377 : (1993) 3 WLR 43 ; Also see R v City of London Magistrate Court exparte Green, (1997) 3
All ER 551.
98 See Cobra Golf Ltd v Rata, (1998) chapter 29.
99 See Nicholls v Nicholls, (1997) 2 All ER 97; Taylor v Ribby Hall Leisure Ltd, (1997) 4 All ER 760.
1 Churchman v Joint Shop Stewards Committee, (1972) 3 All ER 603; Enfield BC v Mahoney, (1983) 2 All ER 901 : (1983) 127 S.J.
392.
2 Cox and Griffiths – Petitioner, 1998 SCCR 561 : (1998) JC 267 .
3 Ambard v AG for Trinidad and Tobago, (1936) AC 322 (335) : 1936] UKPC 16.
4 R v Commissioner of Police of the Metropolis exparte Blackburn (No.2), (1968) 2 QB 150 : (1968) 2 W.L.R. 1204.
5 Morris v Crown Office, (1970) 2 QB 114 : (1970) 1 All ER 1079.
6 R v Powell, (1994) 98 Cr. Appeal R.224.
7 See R v Montgomery, (1995) 2 Crl.App. R23 : (1995) 2 All ER 28 (CA).
8 Attorney General v Mulholland and Foster, 1963 QB 477 : (1963) 1 All ER 767; also see Senior v Holdsworth, (1976) QB 23.
9 Devi Lal v Mohan Prasad, (1996) 5 SCC 378 [LNIND 1996 SC 2313].
10 Deepak Kumar Prabhaldka v Chief Justice Prabha Shankar Mishra, (2004) 5 SCC 217 [LNIND 2004 SC 574].
Dinesh Mishra
Page 169 of 170
11 Zahira Habibullah Sheik (5) v State of Gujarat, AIR 2006 SC 1367 [LNIND 2006 SC 168]: (2006) 3 SCC 374 [LNIND 2006 SC
168].
12 The High Court’s power to punish for contempt of a court subordinate to it rests on legislation and not on any provision of the
Constitution.
(para 12).
14 Ajay Kumar Pandey, Re., AIR 1997 SC 260 [LNIND 1996 SC 1824]: (1996) 6 SCC 510 [LNIND 1996 SC 1824]; see also Pritam
Lal v High Court of M.P., AIR 1992 SC 904 [LNIND 1992 SC 182]: 1993 (Supp-1) SCC 529.
15 E.M.S. Namboodiripad v T.N. Nambiar, AIR 1970 SC 2015 [LNIND 1970 SC 286]: (1970) 2 SCC 325 [LNIND 1970 SC 286] :
(1971) 1 SCR 697 [LNIND 1970 SC 286].
16 See Pritam Pal v High Court of MP at Jabalpur through Registrar, AIR 1992 SC 904 [LNIND 1992 SC 182]: (1993) Supp-1 SCC
529; See also D.N. Taneja v Bhajan Lal, (1988) 3 SCC 26 [LNIND 1988 SC 274] : (1988) 3 SCR 888 [LNIND 1988 SC 274]; S.
Mulgaokar, Re., AIR 1978 SC 727 [LNIND 1978 SC 402]: (1978) 3 SCC 339 [LNIND 1978 SC 402] : (1978) 3 SCR 162; Delhi
Judicial Service Assn. v State of Gujarat, AIR 1991 SC 2176 [LNIND 1991 SC 446]: (1991) 4 SCC 400 : (1991) 3 SCR 936
[LNIND 1991 SC 446].
17 Commissioner, Agra v Rohtas Singh, AIR 1998 SC 685 [LNIND 1997 SC 1576]: (1998) 1 SCC 349 [LNIND 1997 SC 1576] :
(1998) 2 Ker LT 6 (SN).
18 See D.N. Taneja v Bhajan Lal, (1988) 3 SCC 26 [LNIND 1988 SC 274] : (1988) 3 SCR 888 [LNIND 1988 SC 274] : (1988) 2 JT
499; see also Commissioner, Agra v Rohtas Singh, AIR 1998 SC 685 [LNIND 1997 SC 1576]: (1998) 1 SCC 349 [LNIND 1997 SC
1576] : (1998) 2 Ker LT 6 (SN).
19 State of Maharashtra v Mahboob S. Allibhoy, AIR 1996 SC 2131 [LNIND 1996 SC 756]: (1996) 4 SCC 411 [LNIND 1996 SC
756] : (1996) 4 JT 151.
20 See Dhananjay Sharma v State of Haryana, AIR 1995 SC 1795 [LNIND 1995 SC 612]: (1995) 3 SCC 757 [LNIND 1995 SC 612];
Chandra Sashi v Anil Kumar Verma, (1994) 7 JT 459 : 1995 SCC (1) 421.
21 Ajay Kumar Pandey, Re., AIR 1998 SC 3299 [LNIND 1998 SC 930]: (1998) 7 SCC 248 [LNIND 1998 SC 930] : (1998) 6 JT 571 :
(1998) 7 Supreme 473.
22 Baradakanta Mishra, Ex-Commissioner of Endowments v Bhimsen Dixit, AIR 1972 SC 2466 [LNIND 1972 SC 471]: (1973) 1
SCC 446 [LNIND 1972 SC 471] : (1973) 2 SCR 495 [LNIND 1972 SC 471]; see also M.P. Dwivedi, Re., AIR 1996 SC 2299
[LNIND 1996 SC 45]: (1996) 4 SCC 252.
23 Prem Shankar Shukla v Delhi Admn., AIR 1980 SC 1535 [LNIND 1980 SC 215]: (1980) 3 SCC 526 [LNIND 1980 SC 215] :
(1980) 3 SCR 855 [LNIND 1980 SC 215].
24 Prem Shankar Shukla v Delhi Admn., AIR 1980 SC 1535 [LNIND 1980 SC 215]: (1980) 3 SCC 526 : (1980) 3 SCR 855 [LNIND
1980 SC 215].
Dinesh Mishra
Page 170 of 170
25 Sunil Gupta v State of MP, (1990) 2 SCR 871 [LNIND 1990 SC 292] : (1990) SCC (Criminal) 442.
26 M.P. Dwivedi, Re., AIR 1996 SC 2299 [LNIND 1996 SC 45]: (1996) 4 SCC 152.
27 Vinay Chandra Mishra, Re., AIR 1995 SC 2348 : (1995) 2 SCC 584.
28 Supreme Court Bar Association v UOI, AIR 1998 SC 1895 [LNIND 1998 SC 455]: (1998) 4 SCC 409 [LNIND 1998 SC 455].
End of Document
Dinesh Mishra
[Art 130] Seat of Supreme Court-

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ministerially. 14
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Constitution,
Dinesh Mishra
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Dinesh Mishra
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as judicial.34
Dinesh Mishra
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Dinesh Mishra
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observed:
Dinesh Mishra
Page 9 of 112
Dinesh Mishra
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State.74
Donaldson MR said:
Dinesh Mishra
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law”.
Dinesh Mishra
Page 12 of 112
Dinesh Mishra
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are not courts.
Dinesh Mishra
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judicial function.
Dinesh Mishra
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invention.95
Dinesh Mishra
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Dinesh Mishra
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function.
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(see below).
Dinesh Mishra
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held:
Dinesh Mishra
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court.
binding judgment.37
Dinesh Mishra
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Dinesh Mishra
Page 23 of 112
Dinesh Mishra
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Constitution.43
Settlement, 1700.
government.”44
Dinesh Mishra
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official conduct.
47-48)
individualism.
said:
Dinesh Mishra
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Dinesh Mishra
Page 27 of 112
judge.
us........”
Dinesh Mishra
Page 28 of 112
Dinesh Mishra
Page 29 of 112
Judiciary.58
Dinesh Mishra
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Scheme”.61
Dinesh Mishra
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the executive”.
Dinesh Mishra
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States that a
Dinesh Mishra
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enactment.
Constitution.
Dinesh Mishra
Page 34 of 112
today.
otiose”.
unfair.
Dinesh Mishra
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agency.
Dinesh Mishra
Page 36 of 112
Dinesh Mishra
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Dinesh Mishra
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judiciary.
Dinesh Mishra
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Dinesh Mishra
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129, post.
Dinesh Mishra
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independence”.
Dinesh Mishra
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Dinesh Mishra
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favour.
Dinesh Mishra
Page 44 of 112
Dinesh Mishra
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Dinesh Mishra
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202(3)(d)]58
Dinesh Mishra
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IV. Oath of office
Executive.
Dinesh Mishra
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Dinesh Mishra
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judicial duties.73
Dinesh Mishra
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accordingly.
Dinesh Mishra
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goes on to say,
existing rule.

Dinesh Mishra
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mentality.83
Committed Judges
Dinesh Mishra
Page 53 of 112

Dinesh Mishra
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before them.”96
Constitution, e.g.;
Dinesh Mishra
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Dinesh Mishra
Page 56 of 112
and High Courts.—
Dinesh Mishra
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U.S.A. (A) U.S.A.—
Dinesh Mishra
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permitted by law.
Dinesh Mishra
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India (D) India.—
observed:
Dinesh Mishra
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purposes.
Dinesh Mishra
Page 61 of 112
fabric.
Dinesh Mishra
Page 62 of 112
Dinesh Mishra
Page 63 of 112
Dinesh Mishra
Page 64 of 112
Dinesh Mishra
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Courts.
Supreme Court.34
India (D) India.—
Dinesh Mishra
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certificate.
Dinesh Mishra
Page 67 of 112
Dinesh Mishra
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in the country.
Switzerland
Dinesh Mishra
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conditions:
Chambers.
Dinesh Mishra
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constitutionality.
Dinesh Mishra
Page 71 of 112
Dinesh Mishra
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yet promulgated.
Dinesh Mishra
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U.S.A. (A) U.S.A.—
wrote HAMILTON:43
Again,
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Dinesh Mishra
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Court. For:
Dinesh Mishra
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“justiciable’).
States.
Dinesh Mishra
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defence.55
Dinesh Mishra
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remarks that
Dinesh Mishra
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(C) Japan.—
Japan
Dinesh Mishra
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a treaty is
Dinesh Mishra
Page 81 of 112
Eire (D) Eire.—
Dinesh Mishra
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by Parliament.
As MAY observes:
Dinesh Mishra
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Parliament.67
India (G) India.—
not.68
Dinesh Mishra
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96,
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Dinesh Mishra
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impugned Act.85
Dinesh Mishra
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Dinesh Mishra
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Article 245 post).
Dinesh Mishra
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by the Legislature.
Federal Court.
Constitution.4
Dinesh Mishra
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provision.
also ascertain.
Dinesh Mishra
Page 91 of 112
Dinesh Mishra
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Sri Lanka.
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.
COMMENTARY
Article 130 is an enabling provision and does not cast any mandatory duty on Chief Justice of India to
appoint place or places other than Delhi as seat of Supreme Court. It involves taking a policy decision
by the Chief Justice of India and approval of President. No court can give any direction to the Chief
Justice of India or President to exercise power under Article 130 for appointing place or places other
than Delhi for sitting of Supreme Court.29
In that case, the court observed that the provision in this article is in the nature of an enabling
provision which empowers the CJI with the approval of President to appoint place other than Deli as
the seat of Supreme Court. Article 130 cannot be construed as casting a mandatory obligation of the
Chief Justice of India to appoint place or places other than Delhi as the seat of the Supreme Court. The
question as to whether the Supreme Court should appoint a place other than Delhi as the seat of
Supreme Court involves taking a policy decision of Chief Justice of India which must receive the
approval of the President of India. If after taking into consideration the relevant facts, the Chief Justice
of India forms an opinion that the Supreme Court should sit in a particular place or places other than
Delhi, he has to seek the approval of President for the proposal, and if the President approves the
proposal an order appointing a place or places where the Supreme Court shall sit is passed. Exercise of
the power as to whether the Supreme Court should sit at a particular place or places other than Delhi
and first place a decision by Chief Justice of India in that regard and thereafter the approval of the
proposal of the Chief Justice of India by the President on the advice of the Council of Ministers. No
court can give a direction either to the Chief Justice of India or the President in exercise of the power
conferred under Article 129 and to pass appointing Indore and/or any other place or places in India as
Dinesh Mishra
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the seat or seats for the sitting of the Supreme Court.30

7 Muskrat v U.S., (1911) 219 US 346 (356).
2003 SC 260] .
Dinesh Mishra
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1.015 at p 11.
260] .
Dinesh Mishra
Page 95 of 112
[LNIND 1961 SC 206] .
107 : 1958 SCR 1040 [LNIND 1957 SC 134] .
[LNIND 1977 SC 214] .
SCR 530 [LNIND 1970 SC 40] .
(2006) 2 SCC 1 [LNIND 2006 SC 1219] .
Dinesh Mishra
Page 96 of 112
SCR 206 [LNIND 1986 SC 307] .
40 [LNIND 2001 SC 2120] .
(2001) 4 SCC 558 [LNIND 2001 SC 806] .
Dinesh Mishra
Page 97 of 112
2002 SC 400] .
.

Dinesh Mishra
Page 98 of 112
433 [LNIND 1964 SC 346] .
SC 206] : (1961) 31 Com Cases 387 .
[LNIND 1962 SC 337] .
95 Scott v Scott, (1913) AC 417 .
359 .
Dinesh Mishra
Page 99 of 112
[LNIND 1978 SC 54] .
(1998) 3 JT 269 .
[LNIND 1978 SC 54] .
(1997) 9 JT 492 .
(1990) 2 SCR 110 [LNIND 1990 SC 177] .
2] : 1986 Cr LJ 320 .
Dinesh Mishra
Page 100 of 112
24 1 B1 Com 69.
(2005) 2 SC 8 .
672 .
(2005) 2 SC 8 .
[LNIND 2002 SC 249] (227).
p 164.
Dinesh Mishra
Page 101 of 112
(1977) 4 SCC 193 [LNIND 1977 SC 268] .
175-76.
SC 1118] (9).
(Supp-2) SCR 659.

(paras. 867, 877, 880, PATHAK, J.).
Dinesh Mishra
Page 102 of 112
SCC 87.
63 Golden v U.K., (1970) 1 EHRR 524 .
65 Re., Mc., (1985) AC 528 (HL).
SC 538] .
Dinesh Mishra
Page 103 of 112
11] .
85 VII CAD 853 and 1000.

165.
Dinesh Mishra
Page 104 of 112
AIR 1979 SC 478 [LNIND 1978 SC 661] .
[LNIND 1950 SC 22] : 1950 AIR 27 .
(1955) 349 US 133].


Dinesh Mishra
Page 105 of 112
(1978) 1 SCR 423 [LNIND 1977 SC 268] .
753] : (1997) 6 SCC 339 [LNIND 1997 SC 753] .
[LNIND 1997 SC 753] .
1994 SC 268 [LNIND 1993 SC 1231] : (1993) 4 SCC 441 .

Dinesh Mishra
Page 106 of 112
1 SCR 423 [LNIND 1977 SC 268] .
[LNIND 1998 SC 457] : (1998) 3 JT 269 .
(1988) 6 JT 571 : (1988) 7 Supreme 473 .
1998 SC 930] : (1998) 7 SCC 248 [LNIND 1998 SC 930] .
1169 [LNIND 1953 SC 59] .
8 JT 354 .
II 2nd Edn, pp 1935-1941.
Constitution.

60 M v Home Office, (1994) 1 AC 377 .
Dinesh Mishra
Page 107 of 112

67 Re, C. (an Infant), (1939) Ch 363 .

[LNIND 1978 SC 54] .
457] : (1998) 3 JT 269 .
J).
365 : 1981 Supp SCC 87].
Dinesh Mishra
Page 108 of 112
(1994) 2 SCC 303 [LNIND 1994 SC 160] .
1977 SC 268] .
SCR 659.
Dinesh Mishra
Page 109 of 112
63] .
41 See C6 vol A, pp 349-521.
Constitution Act.


47 supra.
Dinesh Mishra
Page 110 of 112

p 579.


(1971) 1 SCR 697 [LNIND 1970 SC 286] .
206 [LNIND 1986 SC 307] .
206 [LNIND 1986 SC 307] .
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
Dinesh Mishra
Page 111 of 112
SCR 347 [LNIND 1975 SC 432] .
[LNIND 1980 SC 257] .
[LNIND 1953 SC 70] .
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
206 [LNIND 1986 SC 307] .
273 [LNIND 1957 SC 93] .
SC 154] (paras. 950, 1287, 1381, 1586, 1592).
273 [LNIND 1957 SC 93] .
1207] .
(2005) 10 SCC 110 [LNIND 2004 SC 1207] .
Dinesh Mishra
Page 112 of 112
1997 SC 488]: (1997) 3 SCC 261 [LNIND 1997 SC 488].
96 : (1991) 4 JT 361 .
29 UOI v S.P. Anand, AIR 1998 SC 2615 [LNIND 1998 SC 726] : (1998) 6 SCC 466 [LNIND 1998 SC 726] .
30 Distinguishing the decision in Supreme Court Advocates on Record Assn. v UOI, AIR 1994 SC 268 [LNIND 1993 SC 1231] :
(1993) 4 SCC 441 : 1993 (Supp-2) SCR 659.
End of Document
Dinesh Mishra
[Art 131] Original Jurisdiction of the Supreme Court.

Dinesh Mishra
Page 2 of 168
Dinesh Mishra
Page 3 of 168
ministerially. 14
Dinesh Mishra
Page 4 of 168
Constitution,
Dinesh Mishra
Page 5 of 168

Dinesh Mishra
Page 6 of 168
as judicial.34
Dinesh Mishra
Page 7 of 168
Dinesh Mishra
Page 8 of 168
observed:
Dinesh Mishra
Page 9 of 168
Dinesh Mishra
Page 10 of 168
State.74
Donaldson MR said:
Dinesh Mishra
Page 11 of 168
law”.
Dinesh Mishra
Page 12 of 168
Dinesh Mishra
Page 13 of 168
are not courts.
Dinesh Mishra
Page 14 of 168
judicial function.
Dinesh Mishra
Page 15 of 168
invention.95
Dinesh Mishra
Page 16 of 168
Dinesh Mishra
Page 17 of 168
Dinesh Mishra
Page 18 of 168
function.
Dinesh Mishra
Page 19 of 168
(see below).
Dinesh Mishra
Page 20 of 168
held:
Dinesh Mishra
Page 21 of 168
court.
binding judgment.37
Dinesh Mishra
Page 22 of 168
Dinesh Mishra
Page 23 of 168
Dinesh Mishra
Page 24 of 168

Constitution.43
Settlement, 1700.
government.”44
Dinesh Mishra
Page 25 of 168
official conduct.
47-48)
individualism.
said:
Dinesh Mishra
Page 26 of 168
Dinesh Mishra
Page 27 of 168
judge.
us........”
Dinesh Mishra
Page 28 of 168
Dinesh Mishra
Page 29 of 168
Judiciary.58
Dinesh Mishra
Page 30 of 168
Scheme”.61
Dinesh Mishra
Page 31 of 168
the executive”.
Dinesh Mishra
Page 32 of 168
States that a
Dinesh Mishra
Page 33 of 168
enactment.
Constitution.
Dinesh Mishra
Page 34 of 168
today.
otiose”.
unfair.
Dinesh Mishra
Page 35 of 168
agency.
Dinesh Mishra
Page 36 of 168
Dinesh Mishra
Page 37 of 168
Dinesh Mishra
Page 38 of 168
judiciary.
Dinesh Mishra
Page 39 of 168
Dinesh Mishra
Page 40 of 168
129, post.
Dinesh Mishra
Page 41 of 168
independence”.
Dinesh Mishra
Page 42 of 168
Dinesh Mishra
Page 43 of 168
favour.
Dinesh Mishra
Page 44 of 168
Dinesh Mishra
Page 45 of 168
Dinesh Mishra
Page 46 of 168
202(3)(d)]58
Dinesh Mishra
Page 47 of 168
IV. Oath of office
Executive.
Dinesh Mishra
Page 48 of 168
Dinesh Mishra
Page 49 of 168
judicial duties.73
Dinesh Mishra
Page 50 of 168
accordingly.
Dinesh Mishra
Page 51 of 168
goes on to say,
existing rule.

Dinesh Mishra
Page 52 of 168
mentality.83
Committed Judges
Dinesh Mishra
Page 53 of 168

Dinesh Mishra
Page 54 of 168
before them.”96
Constitution, e.g.;
Dinesh Mishra
Page 55 of 168
Dinesh Mishra
Page 56 of 168
and High Courts.—
Dinesh Mishra
Page 57 of 168
U.S.A. (A) U.S.A.—
Dinesh Mishra
Page 58 of 168
permitted by law.
Dinesh Mishra
Page 59 of 168
India (D) India.—
observed:
Dinesh Mishra
Page 60 of 168
purposes.
Dinesh Mishra
Page 61 of 168
fabric.
Dinesh Mishra
Page 62 of 168
Dinesh Mishra
Page 63 of 168
Dinesh Mishra
Page 64 of 168
Dinesh Mishra
Page 65 of 168
Courts.
Supreme Court.34
India (D) India.—
Dinesh Mishra
Page 66 of 168
certificate.
Dinesh Mishra
Page 67 of 168
Dinesh Mishra
Page 68 of 168
in the country.
Switzerland
Dinesh Mishra
Page 69 of 168
conditions:
Chambers.
Dinesh Mishra
Page 70 of 168
constitutionality.
Dinesh Mishra
Page 71 of 168
Dinesh Mishra
Page 72 of 168
yet promulgated.
Dinesh Mishra
Page 73 of 168
U.S.A. (A) U.S.A.—
wrote HAMILTON:43
Again,
Dinesh Mishra
Page 74 of 168
Dinesh Mishra
Page 75 of 168
Court. For:
Dinesh Mishra
Page 76 of 168
“justiciable’).
States.
Dinesh Mishra
Page 77 of 168
defence.55
Dinesh Mishra
Page 78 of 168
remarks that
Dinesh Mishra
Page 79 of 168
(C) Japan.—
Japan
Dinesh Mishra
Page 80 of 168
a treaty is
Dinesh Mishra
Page 81 of 168
Eire (D) Eire.—
Dinesh Mishra
Page 82 of 168
by Parliament.
As MAY observes:
Dinesh Mishra
Page 83 of 168
Parliament.67
India (G) India.—
not.68
Dinesh Mishra
Page 84 of 168
96,
Dinesh Mishra
Page 85 of 168
Dinesh Mishra
Page 86 of 168
impugned Act.85
Dinesh Mishra
Page 87 of 168
Dinesh Mishra
Page 88 of 168
Article 245 post).
Dinesh Mishra
Page 89 of 168
by the Legislature.
Federal Court.
Constitution.4
Dinesh Mishra
Page 90 of 168
provision.
also ascertain.
Dinesh Mishra
Page 91 of 168
Dinesh Mishra
Page 92 of 168
Sri Lanka.
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 on one side and one or more other States on
the other, or
(c) between two or more States, if and insofar as the dispute involves any question (whether of
law or fact) on which the existence or extent of a legal right depends :
31 [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.]
Before 1 November 1956 After 1 November 1956

[Art 131] Original Jurisdiction of the Supreme Court.— [Art 131] Subject to the provisions of this Constitution, the Supreme
Subject to the provisions of this Constitution, the Supreme Court Court shall, to the exclusion of any other court, have original
shall, to the exclusion of any other court, have original jurisdiction in jurisdiction in any dispute—
any dispute—
(b) between the Government of India and any State on one side and
(b) between the Government of India and any State or States on one one or more other States on the other, or
side and one or more other States on the other; or
(c) between two or more States, if and insofar as the dispute involves
Dinesh Mishra
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Before 1 November 1956 After 1 November 1956

(c) between two or more States, if and so far as the dispute involves any question (whether of law or fact) on which the existence or
any question (whether of law or fact) on which the existence or extent of a legal right depends :
extent of a legal right depends :
32[Provided that the said jurisdiction shall not extend to a dispute
Provided that the said jurisdiction shall not extend to— arising out of any treaty, agreement, covenant, engagement, sanad
or other similar instrument which, having been entered into or
(i) a dispute to which a State specified in Pt B of the First Schedule is executed before the commencement of this Constitution, continues in
a party, if the dispute arises out of any provision of a treaty, operation after such commencement, or which provides that the said
agreement, covenant, engagement, sanad or other similar instrument jurisdiction shall not extend to such a dispute.]
which was entered into or executed before the commencement of this
Constitution and has, or has been, continued in operation after such
commencement;
(ii) a dispute to which any State is a party, if the dispute arises out of
any provision of a treaty, agreement, covenant, engagement, sanad
or other similar instrument which provides that the said jurisdiction
shall not extend to such a dispute.
[Art 131.1] Amendment
Owing to the abolition of Pt B States, reference to such States was omitted and the original Proviso
was substituted by the Constitution (Seventh Amendment) Act, 1956.
[Art 131.2] OTHER CONSTITUTIONS (A) U.S.A.—
Under Article III, section 2(2) of the Constitution, the original jurisdiction of the Supreme Court is
limited to—
(a) cases affecting ambassadors and other public Ministers and Consuls; (b) controversies in which a State shall be a party.
Federal law 28 USCA(S) 1251 provides that the Supreme Court shall have both “original and
exclusive jurisdiction of all controversies between two or more States”; it shall have “original but also
exclusive jurisdiction (which means a case could be tried in either the Supreme Court or a Federal
District Court) in all actions or proceedings to which ambassadors other public ministers, consuls, or
vice consuls of foreign States are parties; all controversies between the United States and a State” and
“all actions or proceedings by a State against the citizens of another State or against aliens”.33
It is not possible either to withhold,34 or to extend35 this original jurisdiction to any other cases, by
legislation, because this jurisdiction is created by the Constitution itself and not by statute.36
It is important in the study of constitutional interpretation to understand the difference between

“judicial power” and “jurisdiction”. Judicial power is the power of a court to decide cases. Jurisdiction
Dinesh Mishra
Page 94 of 168
is the authority of court to hear a case and there-fore to exercise judicial power. Marbury v Madison –
supra involved an exercise of the Supreme Court’s original jurisdiction. Original jurisdiction is the
authority of a court to hear a case in the first instance, that is, to function as a trial court. The Supreme
Court’s original jurisdiction, as Chief Justice Marshall pointed out in Marbury v Madison – supra, “is
delineated in Article III section 2 para 2 of the Constitution and extends to all cases affecting
Ambassadors, other Public Ministers and Consuls and those in which a State shall be a party”. Federal
Law (28 USCA at 1251) provides that the Supreme Court shall have both “original and exclusive
jurisdiction of all controversies between two or more States and that it shall have original, but not the
exclusive jurisdiction” (which means that a case could be tried either in US Supreme Court or federal
district court) in all actions or proceedings to which Ambassadors, other Public Ministers, Consuls or
Vice-Consuls of foreign States are parties” and all controversies between the United States and a State
and all actions or proceedings by a State against the citizens of another State or against aliens.
Although the Supreme Court technically is a trial court when it exercises original jurisdiction, cases
heard by the court in the first instance have not been tried by a jury since before 1800. When the
parties have stipulated to the facts or where otherwise questions of law are presented, the court will
hear arguments. Where the facts in a case are disputed, the court’s customary practice has been to
appoint a “Special Master” who functions as a hearing office. He or she takes testimony, hear
arguments, sifts evidence and formulates conclusion as to both the fact and legal issues involved. The
Special Master proposes a report which is subject to exception and objection by parties. The court may
then order argument as any of the findings or recommendations in dispute. In any case, the court itself
makes rules on all important motions and directly issues any order granting or denying the ruling
sought. Over the last decade, the court, on the average, has decided fewer than three such cases. A
Term Dispute over boundary lines between States still accounts for the largest share of this small
number of cases.37
But this jurisdiction of the Supreme Court is not mandatory in the sense that the court has no
discretion to refuse it even where the litigant has an effective remedy.38 On the other hand, it is to be
sparingly exercised.39
(a) The jurisdiction relating to foreign representatives is rarely exercised owing to the immunity
of such persons in international law. According to well accepted principle of international law
diplomatic agents of foreign states are immune from prosecution in the court of the country to
which they are accredited. The provision in the Constitution extending federal jurisdiction to
all cases affecting diplomats is intended to check the State courts from the infringement of
International Law. If a diplomatic agent commits an offence, his recall may be requested or he
may be even expelled, but so long as he remains a duly accredited diplomat, his immunity
from legal proceedings is guaranteed.
(b) The following principles may be deduced from cases relating to suits brought by a State
against another State or the Union.
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I. A State may sue either in its sovereign capacity or under its ordinary proprietary right. Different
considerations would apply in the two cases:
(A) A suit by the State in its sovereign capacity can be maintained without showing any special injury
to the State. Such a suit is brought by the State as the guardian of the rights and general interests of its
citizens,—and in all matters in which they cannot act for themselves;40 e.g.,
(i) to restrain the defendant State from creating a nuisance dangerous to the health of the inhabitants of
the plaintiff State;41 or (ii) to restrain the defendant State from so diverting the waters42 of a river
flowing through both States, as to deprive the inhabitants of the plaintiff State from an adequate
supply of those waters;43 or (iii) to restrain another State to cause pollution of the waters of the
complaining State, by discharge of sewage water.44
(a) But such controversy, in order to be justiciable, must arise out of an act of the offending State
which affects the people of the complaining State in such a manner that the complaining State
may be said to have been affected in its sovereign or corporate capacity. It must be something
more than that particular citizens of the complaining State are injured by the
maladministration of the laws of another.45 If the State is not, as a State interested in a
proprietary or other manner, and there is no agreement, the breach of which may create a
controversy between the States—the citizens of the complaining State must in their individual
capacity seek justice, but their State cannot make their case its case, in such circumstances.44
In other words, the original jurisdiction of the Supreme Court cannot be invoked for the
“vindication of grievances of particular individuals”.44
But the health, comfort and welfare of its citizens constitute an interest which a State as
the representative of the public, is entitled to maintain by action against another State.46
When a substantial portion of its citizens are affected in such matters, the State is entitled
to sue.45
(b) The burden of proof of the complaining State is much greater than that imposed upon a
complainant in an ordinary suit between private parties.47 On the other hand, such suits are to
be dealt with in an untechnical manner, apart from forms which are required from private
suitors. They are in the nature of quasi-international controversies, so that objections like
multifariousness, laches and the like should not be entertained.48 For the same reason, even the
rules of international law are applied in proper cases, for the States in the American Federal
System are quasi-sovereigns.49
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(B) On the other hand, suits by the State as an ordinary proprietor for the recovery or protection of
money or property are governed by the ordinary rules applicable to suits by individuals, and cannot be
maintained without proper averment and proof of title or ownership or interest in the subject matter as
to authorise the bringing of a suit by it just as in the case of a suit by an individual.50 Disputes as to
boundaries51 fall within this class.
(C) It is obvious that the words “controversies in which a State shall be a party” in Article III, section
2(2) are wide enough to include suits brought by individuals against their own State or against another
State.
(i) But suits by individuals against a State other than the State of which they are citizens are
prohibited52 by the 11th Amendment (1798) which says:
The judicial power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by citizens of another State, or by citizens or
subjects of any foreign State.
(ii) Though the 11th Amendment does not prohibit a suit brought by a citizen against his own
State, it has been held that such an action does not lie without the consent of the State,53
according to the principle of sovereignty. But this immunity may be waived by the State.54
II. s to suits by or against the United States, it is settled that though the United States may sue a State
without the latter’s consent, a State cannot sue the United States without the latter’s consent.55 Such
suits generally relate to questions as to title to land or boundaries.56
(B) Switzerland.—
The Federal Tribunal of Switzerland has a wide original jurisdiction, relating to civil, criminal and
“public law” cases.
(i) The civil jurisdiction is based on Article 110 of the Constitution57 which says:
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The Federal Tribunal shall have civil cognizance of disputes :
1. Between the Confederation and the Cantons;
2. Between the Confederation of the one part, and corporations or private individuals of the other part, when the latter are
plaintiffs and the dispute reaches the degree of importance to be prescribed by federal legislation;
3. Between Cantons;
4. Between Cantons of the one part, and corporations or private individuals of the other part, whether either party so
demands and the dispute reaches the degree of importance to be prescribed by federal legislation.
The Federal Tribunal shall also take cognizance of differences in regard to loss of nationality and disputes between communes of
different Cantons concerning civic rights.
Article III, again, authorises parties to bring a litigation before the original jurisdiction of the Federal
Tribunal, by agreement:
The Federal Tribunal is bound to judge other cases when the parties agree to appeal to it and the matter in dispute is of the degree
of importance to be prescribed by federal legislation.
(ii) Article 112 of the Constitution invests the Federal Tribunal with an original criminal jurisdiction
over:
1. Cases of high treason against the Confederation, and revolt and violence against the federal authorities;
2. Crimes and offences against international law;
3. Crimes and political offences which are the cause or consequence of disorders necessitating armed federal intervention;
4. Charges against officials appointed by a federal authority, when brought before the Tribunal by that authority.
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(iii) Article 113(1) of the Constitution deals with the “public law” jurisdiction of the Federal Tribunal
which comprises:
1. Conflicts of competence between federal authorities on one side and cantonal authorities on the other side;
2. Disputes in public law between cantons;
3. Complaints of violation of the Constitutional rights of citizens........
Article 114A, on the other hand, empowers the Cantons to give the Federal Tribunal jurisdiction over
administrative disputes regarding Cantonal affairs, as referred to it by Federal legislation.58
Original jurisdiction relating to certain other matters has been conferred upon the Federal Tribunal by
federal legislation (the Judiciary Act).
(C) Australia.—
Under section 75 of the Commonwealth of Australia Constitution Act, the High Court has original
jurisdiction.
In all matters—
(i) Arising under any treaty;59
(ii) Affecting consuls or other representatives of other countries;
(iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth is a party;60
(iv) Between States, or between residents of different States, or between a State and a resident of another State;61
(v) In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.62
In order to come under the original jurisdiction under section 75, the subject matter of the litigation
must not only satisfy any of the conditions (i) to (iv) but also be a “matter” which has been interpreted
to mean “some immediate right, duty or liability” to be established by the determination of the
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court.’63 The court will not, thus, entertain political questions64 or questions of mere administrative
convenience, which do not relate to a right “given by law”.
Section 76 of the Constitution empowers the Commonwealth Parliament to confer additional original
jurisdiction upon the High Court. By the Judiciary Acts the High Court has thus been vested with
original jurisdiction upon the following matters as well—
(1) All matters arising under the Constitution or involving its interpretation;
(2) Trials of indictable offences against Commonwealth laws.
As regards suits by States, it has been held that a State cannot sue unless it can complain of an injury,
or threatened injury, as a State,63 e.g., trespass upon its territory;65 financial liability of the
Commonwealth66 or another State to the plaintiff State; encroachment upon its taxing power;67
wrongful acquisition of its property.68
As regards encroachment upon its legislative powers, it has been held, that a State may sue the Union
or another State, through its Attorney-General representing the people of the State, only if the
legislation purports to affect not the private rights of individuals but their rights as members of the
general public.69 No consent of the Commonwealth or of a State is required for suits against it which
are authorised by sec. 75 of the Constitution Act itself.70
The Australian High Court cannot claim any general jurisdiction derived from common law. Its
jurisdiction must be deduced from any of the clauses of sections 75-76.71 On the other hand, the
jurisdiction, being created by the Constitution, cannot be taken away be ordinary legislation, e.g., by
providing that mandamus or prohibition shall not lie against judges of the Industrial Court.72
(D) Canada.
The Canadian Supreme Court has no original jurisdiction.
(E) Government of India Act, 1935.—
Section 204(1) of the Act was as follows:
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(1) Subject to the provisions of this Act, the Federal Court shall, to the exclusion of any other Court, have an original jurisdiction in
any dispute between any two or more of the following parties, that is to say, the Federation, any of the Provinces or any of the
Federated States,73 if and insofar 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) a dispute to which a State is a party, unless the dispute—
(i) concerns the interpretation of this Act or of an Order in Council made there-under, or the extent of the legislative or
executive authority vested in the Federation by virtue of the Instrument of Accession of that State; or
(ii) arises under an agreement made under Pt VI of this Act in relation to the administration in that State of a law of the
Federal Legislature, or otherwise concerns some matter with respect to which the Federal Legislature has power to
make laws for that State; or
(iii) arises under an agreement made after the establishment of the Federation, with the approval of His Majesty’s
Representative for the exercise of the functions of the Crown in its relations with Indian States, between that State
and the Federation or a Province being an agreement which expressly provides that the said jurisdiction shall
extend to such a dispute;
(b) a dispute arising under any agreement which expressly provides that the said jurisdiction shall not extend to such a
dispute.
This section was not much tried, and we get only four reported decisions under it—
1. The United Provinces brought a suit against the Government of India for a declaration that the
Cantonments Act (II of 1924) was ultra vires, since it affected the right of the Province to have
the fines realised under the Act, credited to the Provincial revenues instead of to the
Cantonment funds.74
2 The Governor-General in Council brought a suit against the Province of Madras, for a
declaration that the Madras General Sales Tax Act, 1939, was ultra vires, being an
encroachment upon Entry 45, List I in Schedule VII of the Government of India, Act, 1935.
The Federal Court dismissed the suit on the ground that the Act fell within Entry 48 of List
II.75
3. Ramgarh, an Indian State, brought a suit against the Province of Bihar for a declaration that it
was an “Acceding State” within the meaning of section 204 of the Government of India Act,
1935, as adapted by the India (Provisional) Constitution Order, 1947, and that, accordingly,
the Province of Bihar had no authority to legislate or exercise any powers of Government over
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the Ramgarh State. The suit was dismissed on the ground that Ramgarh was not an “Acceding
State” within the meaning of section 204, as amended above.76
4. On 15 January 1950, the State of Seraikella brought a suit in the Original Jurisdiction of the
Federal Court (under the present section), as an “Acceding State” against the Dominion of
India and the Province of Bihar, for a declaration, inter alia, that the alleged merger of the
plaintiff State in the Province of Bihar by virtue of the States Merger (Governor’s Provinces)
Order, 1949, was illegal and not binding on the plaintiff State. During the pendency of the suit,
the Constitution of India came into force and the suit was automatically transferred to the
Supreme Court under Article 374(2). The majority of the Court dismissed the suit on the
ground that the Supreme Court had no jurisdiction to try the suit by reason of Article 363(1) of
the Constitution.77
[Art 131.3] INDIA [Art 131.3.1] Scope of the Original Jurisdiction of the Supreme Court
The original jurisdiction of the Supreme Court is limited by the conditions of this Article.78 It is not a
court of ordinary original jurisdiction in all matters and between all parties. In order to invoke the
original jurisdiction of the Supreme Court the two conditions must be satisfied—(a) as to parties and
(b) as to the nature of the dispute. If these two conditions are not satisfied, a suit cannot be brought
before the Supreme Court simply on the ground that there is no other court in the land which can try
the question79 raised by the suit.
Apart from Article 32 which empowers the court to issue direction, order or writs including writs in
the nature of Habeas Corpus, Mandamus, prohibition, quo warranto and certiorari which may be
appropriate for the enforcement of any of the rights conferred by Pt III, Article 131 confers original
jurisdiction to Supreme Court to resolve disputes between two or more governments. In a federation
governed by a written Constitution with division of powers between the federation and the federation
units, there has to be a forum for resolving disputes involving question of law or fact relating to the
legal rights of the federal government vis-à-vis the Government of the federation units or States and
between the State Governments themselves. The Supreme Court alone is properly vested with the
federal jurisdiction to the exclusion of all other courts. Article 131 is based on section 203 of the
Government of India Act 1935. For invoking this federal jurisdiction under Article 131, the following
conditions have to be satisfied:
(1) The dispute must be between the Government of India and one or more States or between
Government of India or any State or States on one side and one or more other States on the
other or between two or more States.
(2) The dispute must involve a question whether of law or fact on which the existence or extent of
a legal right depends.
(3) The dispute should not be one arising out of any treaty, agreement or covenant, engagement,
sanad or other similar instrument which having been entered into or executed before the
commencement of Constitution, continues in operation after such commencement or which
provides that the said jurisdiction shall not extend to such a dispute.
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Notwithstanding the opening words “Subject to the provisions of this Constitution” in Article 131, the
jurisdiction of High Court under Article 226 is excluded, with the result that any dispute of the nature
described in Article 131 cannot be entertained by a High Court under Article 226.80 However, a writ
petition filed by State Government challenging the revisional order of the Central Government as a
statutory tribunal is maintainable under Article 226 and is not excluded by Article 13.81 Article 131
does not apply if the parties to the dispute include two or more governments or others. In State of
Bihar v UOI,82 the Supreme Court outlined the nature and scope of its jurisdiction under Article 131.
So far as parties to the dispute are concerned, the framers of the Constitution did intend that they could
only be the constituent units of the UOI itself arrayed on one side or the other either singly or jointly
with another unit or the Government of India. According to the courts, a dispute which falls within the
ambit of Article 131 can only be determined in the forum mentioned therein, namely, the Supreme
Court of India, provided there has not been impleaded in any said dispute any private party, be it a
citizen or a firm or corporation along with a State either jointly or in the alternative. A dispute in
which such a private party is involved must be brought before court, other than “this” court having
jurisdiction over the matter. The word “State” in Article 131 is used in a restricted sense. The enlarged
definition of “State” given in Article 12 of the Constitution for the purpose of Pts III and IV does not
apply to Article 131. The court is only concerned to give its decision on question of law or of fact on
which the existence or extent of legal right claimed depends. Once the court comes to the conclusion
on the cases presented by any disputants and gives its adjudication on the facts or the points of law
raised, the function of the court under Article 131 is over. Article 131 does not prescribe that a suit
must be filed in the Supreme Court for the complete adjudication of the case envisaged therein or the
passing of a decree capable of execution in the ordinary way as decrees of other courts are. The words
“if and in so far as the dispute involved any question (whether of law or fact) on which the existence
or extent of a legal right depends” in Article 131 are words of limitation on the exercise of that
jurisdiction. These words indicate that the dispute should be in respect of legal rights and not disputes
of a political character. The legal right which is subject of the dispute must arise in the context of the
Constitution and the Federation it sets up.
The Supreme Court was called upon to decide disputes between the UOI and the States on several
occasions and in a variety of matters. The State of West Bengal instituted a suit against the UOI for a
declaration that the Parliament is not competent to make a law authorising the UOI to acquire land or
rights in or over lands which are vested in a State and the Coal Bearing Areas (Acquisition and
Development) Act 1957 enacted by Parliament and particularly sections 4 and 7 thereof were ultra
vires the legislative competence of Parliament and for an injunction restraining the defendants from
proceeding under the provisions of those sections of the Act, in respect of Coal Bearing lands vested
in the plaintiff. The Supreme Court dismissed the suit on merits.83
In State of Rajasthan v UOI,84 the plaintiff-State prayed for a declaration that the directive contained
in the letter issued by the Union Home Minister to the Chief Minister of the State is unconstitutional
and for a further declaration that the plaintiff-State is not constitutionally obliged to comply with the
said directive. The said directive required the Chief Minister of the plaintiff-State to advise the
Governor to dissolve the State Assembly in exercise of the power conferred under Article 174(2)(b)
and seek a fresh mandate from the electorate in view of the wishes of the electorate reflected in the
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election to Lok Sabha held in 1977. The defendant raised an objection to the maintainability of the suit
under Article 131 of the Constitution on the ground that the dispute involved in that suit was not a
dispute between Government of India and one or more States. The objection was overruled by a
majority of 4 : 3.
In State of Karnataka v UOI,85 one of the issues framed was regarding the maintainability of the suit
for a declaration that the Central Government’s notification constituting a commission of inquiry to go
into certain changes levelled against the Chief Minister of the State under section 4 of Commission of
Enquiry Act 1952 is illegal and ultra vires. The preliminary objection raised on behalf of the UOI was
that the impugned notification did not affect the plaintiff-State as the proposed inquiry was against the
Chief Minister and certain other Ministers as individuals and not against State of Karnataka. The issue
was decided in favour of the plaintiff-State once again by a narrow majority 4 : 3.
Under Article 131, the Supreme Court can take cognizance of a dispute involving “any question
(whether of law or of fact) on which the existence or extent of a legal right depends. Thus, the dispute
must involve assertion or vindication of a legal right of Govt. of India or a State. It is not necessary
that the right must be a constitutional right. All that is necessary is that it must be a legal right”.86 It is
only when a legal, not a mere political, issue touching upon the existence or extent of a legal right that
when Article 131 is attracted.87 The requirement of Article 131 is that the dispute must involve a
question whether of law or fact on which the existence or extent of a legal right depends. It is this
qualification which provides the true guide for determining whether a particular dispute falls within
the purview of Article 131. In State of Karnataka v UOI,88 it was observed: “The only requirement
necessary for attracting the applicability of Article 131 is that the dispute must be one involving any
question on which the existence or extent of a legal right depends, irrespective of the fact whether the
legal right is claimed by one party or the other and it is not necessary that some legal right of plaintiff
should be infringed before a suit can be brought under this Article. It was further observed: “What has,
therefore, to be seen in order to determine the applicability of Article 131 is whether there is any
relational legal matter involving a right, liberty, power or immunity qua the parties to the dispute. If
there is, the suit would be maintainable, but not otherwise.
The Supreme Court has power to give verdict as to whatever reliefs are necessary for the enforcement
of legal right claimed in the suit if such legal right is established.89 Article 142 of the Constitution can
also be invoked for the purpose.
Not many cases have been filed under Article 231. The significant cases filed so far raised problems of
constitutional law pertaining to federalism.
In State of WB v UOI,90 the State of West Bengal filed a suit against the Centre seeking a declaration
that a Central Law was unconstitutional, but the court upheld the validity of impugned law.
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State of Rajasthan v UOI,91 relates to a suit filed by State Government under Article 131, seeking
injunction against dissolution of the State Legislative Assembly under Article 356 and holding fresh
election in the State since the ruling party had been defeated in the election for Lok Sabha in the State.
The Centre raised several preliminary objections to the maintainability of the suit, viz., (1) Article 131
covers disputes only between Govt. of India and a “State”. There is distinction between “State” and
“State Government”. (2) Article 131 covers disputes only between Govt. of India and States. There is
distinction between “States” and “State Government”. (3) Article 131 covers special kinds of disputes
in which States, as such, may be interested and not merely Govt. of a State which may come and go.
(4) There is no denial of any constitutional right to any State. (5) There is no legal point involved in
the case which was based purely on political factors. (6) There was no legal right involved in the case
which was based purely on political factors. (7) The dispute related to the question whether the State
assemblies should be dissolved which did not involve any question on which the existence or extent of
a legal right depended.
The Supreme Court rejecting all these contentions held that the matter fell within Article 131. The
court refused to give a restrictive meaning to Article 131. It ruled that Article 131 includes a dispute
between Central and State Government involving legal rights. In the words of Justice Chandrachud,
“the true construction of Article 131, a true in substance and true pragmatically is that a dispute must
arise between the Union of a State and a State.92
The dispute between the UOI and a State cannot but be a dispute which arises out of the difference
between the Govt. in office at the Centre and the government in office in a State. It is not necessary for
attracting Article 131 that the plaintiff must assert a legal right in itself. Article 131 contains no such
restriction. It is sufficient for attracting Article 131 that the plaintiff questions the legal or
constitutional right asserted by the defendant, be it the Government of India or any other State. Such a
challenge brings the suit within the terms of Article 131, for, the question for decision of the court is
not whether this is or that particular legislative assembly is entitled to continue in office, but whether
the Govt. of India which asserts its constitutional right to dissolve the assembly on the ground alleged,
possesses any such right.
A State has locus standi and interest to contest and seek an adjudication of the claim set up by the
Union Govt. In a federation, the States are vitally interested in defining the powers of the Central
Government on the one hand, and their own on the other.
In State of Rajasthan v UOI,93 the court asserted that the State through their suit under Article 131
directly and specifically questioned the constitutional right of the Central Govt. to tender a certain
advice to the Governor. The State also questioned the constitutional right of the Central Govt. to
dissolve the State legislature under Article 356.
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Accordingly the Supreme Court ruled that a “legal not a political issue” squarely arises out of the
existence and extent of legal right. The court also clarified that under Article 131 it would have power
to give whatever reliefs are necessary for the enforcement of the legal right claimed in the suit if such
legal right is established.
Dispute between a State of the Union and a public sector undertaking registered under the Companies
Act, does not fall within the original jurisdiction of the Supreme Court because such a body is not a
“State” for the purpose of Article 131.94
Suits by State Governments for compensation from the Indian Railways cannot be filed under Article
131 as they do not involve any question of rights or claims of the Union or the States, but only the
rights and claims relating to ordinary business or commercial transaction which are not in any way
different from similar transaction between private persons.95
Where there was an agreement between two States to share the waters of a river and riparian State was
to construct a canal for water to reach other State, but failed to do so, there was no water dispute
between the two States as they had already started to construct the canal as part of the agreement. The
matter came under the ambit of Article 131. The obligation had to be fulfilled.96
Where the Central Government advises the Chief Minister of some States to advise their Governments
to dissolve their assemblies and hold fresh election, the State Governments are entitled to question
under Article 131 the constitutional right of the Central Government to issue such a directive to the
State Government as the dispute involves a legal (not political) issue on which the existence or extent
of legal right depends.97
Exclusive original jurisdiction of the Supreme Court may under Article 131 exclude certain matters.
Thus – (1) Parliament may by law exclude Supreme Court’s jurisdiction under Article 262. According
to this article, disputes or complaints with respect to use and distribution are controlled by respective
statutory tribunals. In exercise of constitutional power under Article 262(1), the Parliament in fact has
enacted the law called Inter-State Water Disputes Act 1956 and section 11 of the said Act provides
that neither the Supreme Court nor any other court shall have jurisdiction in respect of any water
dispute which could be referred to a Tribunal under the Act. (2) Matters concerning the distribution of
revenues between the Union and the States measures needed to augment the Consolidated Fund of the
Union and the States and any other matters referred to the Finance Commission under Article 280 are
outside the purview of the original jurisdiction of the Supreme Court. (3) Adjustment of certain
expenses and pensions as between the Union and the States is left by Article 290 to mutual agreement
or for determination by an arbitrator. (4) Under Article 143, notwithstanding the provision contained
in Article 131, the President may refer a dispute to the Supreme Court for opinion.98
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Original jurisdiction of the Supreme Court is excluded in inter-State water disputes.1
The Supreme Court is not required to adjudicate upon the dispute in exactly the same way as ordinary
courts of law are normally called upon to do upholding the rights of parties and enforcement of its
orders and decisions. Article 137 does not prescribe that a suit must be filed in Supreme Court for
complete adjudication of the dispute envisaged therein or passing of a decree capable of execution in
the ordinary way as decree of other courts are. It is open for the aggrieved person to present a petition
to the Supreme Court containing a full statement of relevant facts and praying for the declaration of its
rights as against other disputants. Once this is done, the function of the Court under Article 131 is at
an end.2
A dispute which falls within the ambit of Article 131 can only be determined in the forum mentioned
therein, namely, the Supreme Court of India, provided there has not been impleaded in any said
dispute any private party, be it a citizen, or a firm or a corporation along with the State either jointly or
in the alternative. A dispute in which such a private party is involved must be brought before a court
other than the Supreme Court having jurisdiction over the matter. The suit does not lie in the Supreme
Court under Article 131 of the Constitution.3 Article 131 would be attracted where adjudication is
necessary in relation to a legal right of one State or the UOI vis-à-vis other State, as the case may be.
Indisputably, the expression “legal right” has received interpretation. However, it is now well settled
that this article will not be applicable where citizens or private bodies are parties either jointly or in the
alternative with the State or Govt. of India. The enlarged definition of “State” under Article 12 would
not extend to Article 131 of the Constitution. It is also not in dispute that even a statutory corporation
is not a State within the meaning of the said provision.4
So far as the procedural provision regulating admissibility of civil suits before ordinary Civil Court is
concerned, it does not apply in the strict sense where the Supreme Court exercises its original
jurisdiction to decide suits between States.5
Ordinarily, rules of procedure cannot be made applicable in such special circumstances. In the wake of
the above and by reason of the decision of the Supreme Court to do complete justice between the
parties, more so having regard to the powers conferred on the Supreme Court under Article 142 of the
Constitution, the court has the power, authority and jurisdiction to pass any order or issue any
discretion as may be found necessary for the ends of justice.6
The most important feature of Article 131 is that it makes no mention of any party other than Govt. of
India or anyone or more of the States who can be arrayed as disputants. The other distinguishing
feature is that the court is not required to adjudicate upon the disputes in exactly the same way as
ordinary courts of law are normally called upon to do for upholding the rights of parties and
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enforcement of its orders and decisions. The words in the article “in so far as the dispute involves any
question (whether of law or fact) on which the existence the existence or extent of legal rights” are
words of limitation on the exercise of its jurisdiction. These words indicate that the disputes should be
in respect of legal rights and not disputes of a political character. Moreover, the Supreme Court is only
concerned to give its decision on question of law or of fact on which the existence or extent of a legal
right claimed depends. Once the court comes to the conclusion on the cases presented by any
disputants and gives its adjudication on the facts or the points of law raised the function of the court
under Article 131 is over. Article 131 does not prescribe that a suit must be filed in the Supreme Court
for the complete adjudication of the case envisaged therein or the passing of a decree capable of
execution in the ordinary way as decrees of other courts are. It is open to an aggrieved party to present
a petition to the Supreme Court containing a full statement of the relevant facts and praying for the
declaration of its rights as against other disputants. Once that is done, the function of the Supreme
Court under Article 131 is at an end. The framers of the Constitution do not appear to have
contemplated the contingency of a party to an adjudication by the Supreme Court under Article 131
not complying with the declaration made.
The Constitution makes special provision for settlement of certain disputes in a manner different from
that laid down in Article 131. For instance, Article 143 gives an overriding power to the President of
India to consult the Supreme Court when he is of the view that the question of such a nature and of
such public important that it is expedi-ent to do so. Under clause (1) of that article, the President is
empowered to obtain the opinion of the Supreme Court upon any question of law or fact which has
arisen or likely to arise and is of such a nature and of such public importance that it is expedient to do
so. Under clause (1) of that article, the President is empowered to obtain the opinion of the Supreme
Court upon any question of law or of fact which has arisen or is likely to arise and is of such a nature
and of such public importance that the President considers it expedient to obtain such opinion. In such
a case, the Supreme Court after giving such hearing as it thinks fit has to report to the President its
opinion thereon. Clause (2) of the Article shows that this power of the President overrides the proviso
to Article 131.7
Again, when there is a dispute or complaint with regard to the use, distribution or control of the water
of, or in any inter-State river or river valley, clause (2) of Article 262 gives Parliament the power by
law to provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect
of such dispute or complaint as referred to in clause (1). Such a law ousts the jurisdiction of the court
which would normally be attracted by Article 131. Article 290 contains a provision somewhat similar
to Article 257(4) with regard to certain expenses and pensions and makes the same determinable by an
Arbitrator to be appointed by the Chief Justice of India.8
Where a court is given exclusive jurisdiction in respect of a dispute between parties, it is reasonable to
hold that the court has power to resolve the whole dispute including the enforcement of its decree or
order especially when provision has been made for such enforcement. The words “if and in so far as
the dispute involves any question (whether of law or fact) on which the existence of a legal right
depends” used in Article 131 of the Constitution are meant to emphasise the fact that the dispute must
be one relating to legal rights and not a dispute on the political plane not based on a legal right.9
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Article 131 of the Constitution subject to the other provisions of the Constitution confers original
jurisdiction on the Supreme Court over a dispute between the Central Government and one or more
States or between two or more States subject to the condition that the dispute involves any question
whether of law or fact on which the existence or extent of a legal right depends. Article 262(1) of the
Constitution authorises the Parliament to make law for adjudication of any dispute or complaint with
respect to the use, distribution or control of waters of, or in inter-State river or river valley. Sub-art.(2)
of Article 262 also authorises the Parliament to provide by law excluding the jurisdiction of Supreme
Court or any other court in respect of a dispute or complaint as is referred to in clause (1). Thus,
Article 131 being subject to other provisions of the Constitution including Article 262, if Parliament
has made any law for adjudication of any water dispute or a dispute relating to other provisions of the
Constitution including Article 262(1) if the Parliament in fact has enacted the law called Inter-State
Water Disputes Act 1956 and section 11 of the said Act provides that neither the Supreme Court nor
any other court shall have jurisdiction in respect of any water dispute which could be referred to a
Tribunal under the Act.10
Clauses (a), (b) and (c) of Article 131 specify the parties who can appear as disputants before the
Supreme Court. Under clause (a), it is the Govt. of India and one or more States; under clause (b), it is
the Government of India and one or more States on the one side and one or more other States on the
other while under clause (c) the parties can be two or more States without the Govt. of India as being
involved in the dispute. The specification of the parties is not of an inclusive kind. The express words
of clauses (a), (b) and (c) exclude the idea of a private citizen, a firm or a corporation figuring as a
disputant either alone or even along with a State or with the Govt. of India in the category of a party to
the dispute. There is no scope for suggesting that a private citizen or a firm or a corporation can be
arrayed as a party by itself on one side and one or more States including Govt. of India on the other.
Nor is there anything in the article which suggests a claim being made by or preferred against a private
party jointly or in the alternative with a State or the Govt. of India. The framers of the Constitution
appear not to have contemplated the case of a dispute in which a private citizen, a firm or a
corporation is in any way involved as a fit subject for adjudication by the Supreme Court under its
exclusive original jurisdiction conferred by Article 131.11 The meaning of the word “State” will not
include a public sector under-taking like Hindustan Steel Ltd. under this article, although it would be a
“State” for the purpose of Pt III and IV of the Constitution. A writ petition under Article 226 is hardly
a substitute for proceeding under Article 131 which contemplates various permutations and
combinations in the matter of array of parties such as the dispute between the Govt. of India and/or
one or more States or between two States. Such dispute cannot be decided by the High Court under
Article 226. These are generally of an urgent nature and cannot brook any delay.12
The jurisdiction conferred on the Supreme Court by this Article should not be tested on the anvil of
banal rules which are applied under the Code of Civil Procedure for determining whether a suit is
maintainable. This Article undoubtedly confers “original jurisdiction” on the Supreme Court and the
commonest form of a legal proceeding which is tried by a court in the exercise of its original
jurisdiction in a suit. But a constitutional provision which confers exclusive jurisdiction on the
Supreme Court to entertain disputes of a certain nature in the exercise of its original jurisdiction
cannot be equated with a provision conferring a right of a civil court to entertain a common suit so as
to apply to an original proceeding under this Article, the canons of a suit which is ordinarily triable
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under section 15 of Code of Civil Procedure, 1908 by a court of the lowest grade competent to try it,
the Constitution does not describe the proceeding which may be brought under this Article “as a suit”
and significantly Article 131 uses the words and phrases not commonly employed for determining the
jurisdiction of a court of first instance to entertain and try a suit. It does not speak of a cause of action,
an expression of known and definite legal import in the world of witness actions. Instead, it employs
the word “dispute” which is no part of the elliptical jargon of law. Article 131 is a self-contained Code
on matters falling within its purview, provides expressly for the condition subject to which an action
can lie under it. The condition is expressed by the clause “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”. The sole
condition which is required to be satisfied for invoking the original jurisdiction of the Supreme Court
is that the dispute between the parties referred in clauses (a) to (c) must involve a question on which
the existence or extent of a legal right depends. The very nature of the disputes arising under this
Article is different both in form and substance from the nature of claims which require adjudication in
ordinary suits. The proceeding under Article 131 stands in sharp contrast with an ordinary civil suit.
The competition in such a proceeding is between two or more governments—either the one or the
other possesses the constitutional power to act. The only requirement necessary for attracting the
applicability of this Article is that the dispute must be one involving any question “on which the
existence or extent of a legal right depends, irrespective of whether the legal right is claimed by one
party or the other and it is not necessary that the legal right of the plaintiff should be infringed before a
suit can be brought under that Article.13
Eminent Jurist H.M. SEERVAI has said that when a court is given “exclusive jurisdiction” in respect
of a “dispute” between parties, it is reasonable to hold that the court has power to resolve the whole
dispute including enforcement of its decrees or orders, especially when provision has been made for
such enforcement. The words “if and in so far as” the dispute involves any question (whether law or
fact) on which the existence of a legal right depends are meant to emphasise the fact that the dispute
must be one relating to legal rights and not to a dispute on the political plane not based on a legal
right, e.g., a claim that a State project should be included in a five year plan.”14
The purpose of Article 131 is to authorise the Supreme Court to settle inter-governmental disputes.
The Article is a necessary concomitant of a federal or a quasi-federal form of government and is
attracted only when parties to the dispute are the Government of India or one or more States arrayed
on either side.15
[Art 131.3.2] ‘Dispute’
Our Supreme Court shall have no original jurisdiction over cases involving ambassadors and public
ministers or treaties nor will it entertain suits to which citizens are a party.16 Our Supreme Court is a
true federal court in its original jurisdiction,—a tribunal for the determination of “disputes between the
constituent units of the Federation.”17
It will confine itself to disputes between either of the following sets of parties:18
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(a) the Union and one or more States;

(b) the Union and any State or States on the one side and one or more other States on the other
side;
(c) two or more States as against each other.
Under this Article, the Supreme Court can take cognizance of a dispute involving “any question
(whether of law or fact) on which the existence or extent of a legal right depends. The dispute must
involve assertion or indication of a legal right of the Government of India or a State. It is not necessary
that the right must be a constitutional right. All that is necessary is that it must be a legal right.19
Article 131 does not contemplate any private party being arrayed as a disputant on one side or the
other. The parties to the dispute must fall within one or the other category specified in clauses (a), (b)
and (c).That was established by the decision of the Supreme Court in State of Bihar v UOI,20 where
the court said:
…..a dispute which falls within the ambit of Article 131 can only be determined in the forum mentioned therein, namely, the
Supreme Court of India, provided there has not been impleaded in any said dispute any private party, be it a citizen or a firm or
corporation along with a State either jointly or in the alternative. A dispute in which such a private party is involved must be
brought before a court, other than the Supreme Court having jurisdiction over the matter.
There are two limitations in regard to the dispute which can be brought before the Supreme Court
under Article 131. One is in regard to parties and the other is in regard to the subject matter. The
article provides in so many terms that the dispute must be between the Govt. of India and one or more
States or between two or more States. The object of the article seems to be that since in a federal or
quasi-federal structure which the Constitution seeks to set up, disputes may arise between the Govt. of
India and one or more of the States or between two or more States, a forum should be provided for the
resolution of such dispute and that forum should be the highest court in the land, so that final
adjudication of such disputes could be achieved speedily and expeditiously without either party having
to embark on long, tortuous and time consuming journey through a hierarchy of courts. The article is a
necessary concomitant of a federal or quasi-federal form of government and it is attracted only when
the parties to the dispute are the Government of India or one or more States arrayed on either side.
This other limitation as to the subject matter flows from the words “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”. These words clearly indicate that the dispute must be one affecting the existence or extent
of a legal right and not a dispute on the political plane not involving a legal aspect. In State of
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Rajasthan v UOI,21 it was held:
Mere wrangles between Government have no place under the Scheme of that article. It is only when a legal as distinguished from a
mere political issue arises touching upon the existence or extent of a legal right that the article is attracted. Hence the suit in the
present case would obviously not be maintainable unless it complies with both these limitations.22
The Constitution does not describe the proceeding which may be brought under Article 131 as a “suit”
and significantly Article 131 used the word and phrases not commonly employed for determining the
jurisdiction of a court of first instance to entertain and try a suit. It does not speak of a “cause of
action” an expression of known and definite legal import in the world of witness action. Instead, it
employs the word “dispute” which is no part of elliptical jargon of law. But above all, Article 131
which in a manner of speaking is a self-contained Code on matters falling within its purview provides
expressly for the condition subject to which an action can lie under it. That condition is expressed by
the clause “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”. By the very term of the article, therefore, the sole
condition which is required to be satisfied for invoking the original jurisdiction of the Supreme Court
is that the dispute between the parties referred to clauses (a) to (c) must involve a question on which
the existence of a legal right depends.23
It may also be noted that, on a proper construction of Article 131, it is not necessary that the plaintiff
should have some legal right of its own to enforce, but it can institute a suit under that article. It is not
a sine qua non of the applicability of Article 131 that there should be infringement of some right of the
plaintiff. What Article 131 requires is that the dispute must be one which involves a question “on
which the existence or extent of legal right depends”. The article does not say that the legal right must
be of the plaintiff. It may be of the plaintiff or the defendant. What is necessary is the existence or
extent of the legal right must be in issue in the disputes between the parties. We cannot construe
Article 131 as confined to cases which the dispute relates to the existence or extent of the legal right of
the plaintiff, for, to do so would be to read words in the article which are not there. “It seems that
because the mode of proceeding provided in Pt III of the Supreme Court Rules for bringing a dispute
before the Supreme Court under Article 131 is a suit” said Justice Bhagavati, “that we are
unconsciously influenced to import the notion of cause of action which is germane in a suit, in the
interpretation of Article 131 and to read this article as limited only to cases where some legal right of
the defendant is involved. But, it must be remembered that there is no reference to suit or cause of
action in Article 131 and that article confers jurisdiction on the Supreme Court with reference to the
character of the dispute which may be so necessary in a suit, cannot therefore be imported while
construing the scope and ambit of Article 131. It is no doubt true that the judgment delivered by me in
the State of Rajasthan v UOI,24 proceeds on the assumption that the suit under Article 131 can be
instituted only if some right of the plaintiff is infringed, but there was no proper discussion on this
question in the course of arguments in that case and on full consideration, I think that no such
restriction can be imported in the construction of Article 131, so as to narrow down the ambit and
coverage of that article. The only requirement for attracting the application of Article 131 is that the
dispute must be one involving any question “on which the existence or the extent of a legal right”
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depends irrespective of whether the legal right is claimed by one party or the other and it is not
necessary that some legal right of the plaintiff should be infringed before a suit can be brought under
that article. The plaintiff must of course be a party to the dispute unless it is affected by it. The
plaintiff cannot raise a dispute in regard to a matter which does not affect it or in which it is not
concerned. It cannot act on a mere busy body interfering with things which do not concern it. But, if
the plaintiff has interest in raising the dispute in the sense that it is affected by the action taken it can
bring the dispute before the Supreme Court under Article 131 even if no legal right of it is infringed,
provided of course the dispute is relatable to the existence or extent of a legal right.25
In State of Karnataka v UOI,26 the facts were that by a notification (dated 18 May 1977) under section
3(1) of the Commission of Enquiry Act 1952, the Govt. of Karnataka appointed a Commission of
Inquiry consisting of Shri Mir Iqbal Hussain, a retired Judge of the Karnataka High Court for the
purpose of conducting an enquiry into the allegation specified in the notification. Within a few days
thereafter, on 23 May 1977, the Govt. of India issued a notification for enquiring the charges made
against the Chief Minister. The validity of this notification was challenged by State of Karnataka in a
suit brought under Article 131 of the Constitution. The UOI and Shri A.N. Grover were impleaded to
the suit as defendants 1 and 2 respectively. Three issues were framed by the court on the pleading. The
first related to the maintainability of the suit, the second to the question whether the notification issued
by the Central Government was ultra vires the powers possessed by it under section 3 of the Act and
the third to the contention whether section 3 authorises the Central Government to issue the impugned
notification, the section itself was at all constitutional.
The quintessence of Article 131, as Justice Chandrachud said, is that there has to be dispute between
parties regarding a question on which the existence or extent of a legal right depends. The challenge
by the State Government to the authority of the Central Government to appoint a Commission of
Inquiry clearly involves a question on which the existence of extent of legal right of the Central Govt.
to appoint the Commission of Inquiry depends and that is enough to sustain the proceedings brought
by the State under Article 131 of the Constitution. Far from it being a case of the omission of the
obvious justifying the reading of the words into Article 131 which are not there, the Constitution has
untrammelled by considerations which fetter the jurisdiction of a court of first instance, which
entertains and tries suits of civil nature. The very nature of dispute arising under Article 131 is
different both in form and substance from the nature of claims which require adjudication in ordinary
suits.27
The Constitution aims at maintaining a fair balance only between the three organs of power, the
legislature, the executive and the judiciary, but it is designed to secure a similar balance between the
powers of the Central Government and those of the State Govt. The legislative lists in the Seventh
Schedule contain a demarcation of legislative powers between the Central and State governments. The
Executive power of the Central government extends to matters with respect to which Parliament has
the power to make laws while that of the State extends to matters with respect to which the State
legislature has the power to make laws. Pt XI of the Constitution is devoted specially to the
delineation of relationship between the Union and the States. That is a delicate relationship,
particularly if different political parties are in power at the Centre and in the States. The object of
Article 131 is to provide a high powered machinery for ensuring that the Central Government and the
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State Government act within the respective spheres of their authority and do not trespass upon each
other’s constitutional function or power. Therefore, a challenge to the constitutional capacity of the
“defendant” to act in an intended manner is enough to attract the application of Article 131,
particularly when the plaintiff claims that right exclusively for itself. If it fails to establish that right,
its challenge may fail on merits, but proceeding cannot be thrown out on the ground that the impugned
order is not calculated to affect or impair a legal right of the plaintiff.28
In an ordinary civil suit, the rejection of a right asserted by the defendant cannot correspondingly and
of its own force the right claimed by the plaintiff. But proceedings under Article 131 are adjudicatory
of the limits of constitutional powers vested in the Centre and State Government. The claim that the
defendant (the Central Government here) does not possess the requisite power involves the assertion
that the power to appoint the Commission of Inquiry is vested exclusively in the plaintiff (the State
Government here). In a civil suit, the plaintiff has to succeed on the strength of his own title, not on
the weakness of his adversary because he may be a rank trespasser and yet he can lawfully hold on to
his possession against the whole world except the true owner, his suit must fail. A proceeding under
Article 131 stands in sharp contrast with an ordinary civil suit. The competition in such a proceeding is
between two or more governments either the one or the other possesses the constitutional power to act.
There is no third alternative as in a civil suit wherein the right claimed by the plaintiff may reside
neither in him nor in the defendant, but in a stranger. The demarcation and definition of constitutional
power between the rival claimants and restricted to them and them alone is what a proceeding under
Article 131 necessarily involves. “That is why in such a proceeding, a denial of defendant’s right
carries with it an assertion of the plaintiff. Firstly, therefore, I am unable to appreciate that if a State
Government challenges the constitutional right of Central Government to take a particular course of
action, Article 131 still will not be attracted. Secondly, the contention of the State Government has no
power to appoint the Enquiry Commission for inquiring into the conduct of the State Ministers, but
such a right is exclusively vested in the State Government. There is, therefore, not only a denial of the
right claimed by the Central Government, but an assertion that the right exclusively resides in the
State Govt. In a sense, the instant case stands on a stronger footing than the Rajasthan case because
there the challenge made by the State government could perhaps be characterised as purely negative in
nature since the basic contention was that the Central Government had no power to dissolve the State
Assembly. There is, therefore, all the greater reason for rejecting the preliminary objection.29
The expression “legal right” which occurs in Article 131 has to be understood in its proper
perspective. In a strict sense, legal rights are correlative of legal duties and are defined as interests
which the law protects by imposing corresponding duties on them. But, in a general sense, the word
“right” is used to mean an immunity from the legal power to another in the same way as liberty is
exemption from the right of another. Immunity, in short, is no subjection.30 R.W.M. DIAS says that in
Jurisprudence the word “right” has undergone successive potential activity of one person to reference
to another. One of these four relationships according to learned author is the “you cannot”
relationship, which is the same thing as the right to immunity which “denotes” freedom from the
power of another. PATON’S book on Jurisprudence contains a similar exposition of legal rights.
In State of Bihar v UOI,31 court held that in a suit under Article 131 the only order which the court
could make was a declaration adjudicating on the legal right claimed in the suit and once such
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declaration was given, the function of the Supreme Court under Article 131 was at an end. This view
was subsequently held to be erroneous. It overlooked the fact that whereas Proviso (2) of section 204
of Government of India Act 1935 provided that the Federal Court in exercise of its original
jurisdiction shall not pronounce any judgment other than a declaratory judgment, no such provision
limiting the power of the Supreme Court in this regard to the relief to be granted is to be found in
Article 131. There is no such limitation in Article 131 and hence it would not be correct to say that the
Supreme Court could only give a declaratory judgment in a suit under Article 131. The Supreme Court
would have power to give whatever reliefs are necessary for enforcement of the legal right claimed in
the suit, if such legal right is established.32
[Art 131.3.3] Conditions for the Original Jurisdiction of the Supreme Court
From the foregoing analysis it would appear that the Supreme Court can exercise Original Jurisdiction
under Article 131 over a matter, to the exclusion of other courts, only if the following conditions are
satisfied :
(a) There must be a “dispute” between the parties mentioned in clauses (a)-(c). There is no such
dispute where the UOI has rejected a revision application of the State Government, against an
order imposing excise duty, under section 36 of the Central Excises and Salt Act, 1944, and
the State Government moves the High Court under Article 226 of the Constitution, to quash
that order.33 In that case, the State of Mysore contested a demand under the Central Excise
Act, for payment of excise duty on agricultural implements manufactured in the factory
belonging to the State. The State took the matter to the highest tribunal under the law, namely,
the Government of India, which rejected the same. The State then filed a writ petition before
the High Court against Central Government’s decision. It was contended before the High
Court by the Central Government that being a dispute between a State and the Centre, the
matter lay within the exclusive jurisdiction of the Supreme Court under this Article. This
argument was rejected on the ground that the Central Government acted only as a tribunal
under the law and hence it cannot be treated as a party to the dispute. It was held that to invoke
Article 131, a dispute must directly arise between the State and the Central Government on the
repository of the executive power of the Union.34 The said view was upheld by the Supreme
Court.
Under Article 131, the Supreme Court cannot take cognizance of a suit brought by a
private individual against a Government. The State of Bihar filed a suit in Supreme Court
under Article 131 against the UOI as the owner of Railways and Hindustan Steel Ltd., a
government company claiming damages for short supply of iron and steel ordered by the
State in connection with Gandak Project. The court held that the suit did not lie under
Article 131, because its phraseology excludes the idea of a private citizen, a firm or a
corporation figuring as a disputant either alone or along with a government. “The most
important feature of Article 131 is that it makes no mention of any party other than Govt.
of India or any one or more of the States who can be arrayed as disputants”.35 No private
party, be it a citizen or a firm or corporation, can be impleaded as a party to the suit under
Article 131 and Hindustan Steel Ltd. could not be regarded as a “State” for that purpose.36
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This means that only inter-governmental disputes can be brought into the Supreme Court
under Article 131 and a State cannot sue under Article 131 a government company
belonging to the Central Government even though it may be deemed to be a “State” under
Article 12, the court stated that “the dispute must arise in the context of the Constitution
and the Federalism it sets up” and that “the disputes should be in respect of legal rights and
not disputes of a political character.
The court was justified in rejecting the argument based on Article 12. To accept it would
have meant that the dispute between the Government and an administrative agency, of
which there are numerous, could be brought before the Supreme Court which would have
placed an impossible burden on it. It was well, therefore, the court restricted Article 131 to
such disputes as arising between the constituent units of the Indian Union and the Central
Government.
Writ petitions filed by individuals and agents of the State of Sikkim and Meghalaya
challenging the prohibition of “on line and internet lottery” had been dismissed by
Karnataka High Court on the basis of Article 131. The Supreme Court reversed the
decision of the High Court holding, “It is no doubt true that the State of Sikkim or the
State of Meghalaya intended to sue the State of Karnataka independently in terms of
Article 131 of the Constitution, the only forum where the dispute between them could have
been resolved is this Court alone, but when such a lis is brought by the State jointly with
their agents, who had independent cause of action and had a legal right to maintain writ
application questioning the legality and/or validity of the said notification issued by the
State, a suit in terms of Article 131 of the Constitution would not have been
maintainable.37
Article 131 provides a mechanism for setting the inter-governmental disputes quickly and
at the highest judicial level. There is a recurring possibility of such disputes arising in a
Federal country like India which has a Central Government and a number of State
Governments. Thus, the dispute ought to be one between two governments and not
between one government and a private party or an agency or authority of the other
government.
(b) The parties to the dispute must be as specified in Clauses (a) to (c), i.e., the constituent units of
the federation.38 It will not entertain suits to which citizens or private bodies are a party,39
either jointly or in the alternative, with a State or the Government of India.38 Suits in which
there is a private party must be instituted in a court other than the Supreme Court.38 The
enlarged definition of “State” in Article 12 will not extend to Article 131.38 Hence, a statutory
corporation is not a “State” under Article 131.38
(c) It follows that Article 131 would not be attracted where the UOI is not impleaded as a party to
the dispute as the repository of the executive power of the Union but because it had acted as a
statutory tribunal in the dispute.40
Article 131 is attracted only when a dispute arises between or amongst the States and the
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Union in the context of the constitutional relationship that exists between them and the
powers, rights, duties, immunities, liabilities, disabilities, etc. flowing therefrom. Any
dispute which may arise between a State in the capacity of an employer in a factory, a
manufacturer of goods subject to excise duty, a holder of a permit to run a stage carriage, a
trader or businessman carrying on business not incidental to ordinary functions of
government, a consumer of railway services, etc. like any other private party on the one
hand and the UOI on the other cannot be construed as a “dispute” arising between the
States and the Union in discharge of their respective executive powers attracting Article
131. Where a State files a suit against railway administration for damages caused to the
goods transported through the railway administration, it is just a commercial contract and
UOI is made a party only as owner of the railways. In such cases, Article 131 is not
attracted.41
The difference between the representation of the State and the whole people of India on
question of interpretation of the Constitution, which must affect the welfare of the whole
people, and particularly that of the people of the State is concerned, then the jurisdiction
under Article 131 could be invoked.42
(d) The dispute must involve a question relating to a legal right. The expression “legal” right is
used to distinguish it from political rights over which the courts have no Jurisdiction. It is
confined to rights which are enforceable by an action in a court of law.43
Under Article 131, the Supreme Court can take cognizance of “a dispute involving any
question (whether of law or fact) on which the existence or extent of a legal right
depends”. Thus, the dispute must involve assertion or vindication of a legal right of
Government of India or a State”. It is not necessary that the right must be a constitutional
right. All that is necessary is that it must be a legal right.44 Further, the dispute should be in
respect of a legal right and not disputes of political character.45 The purpose of Article 131
is to afford a forum for the resolution of disputes which depend for their decision on the
existence or the extent of its legal right. It is only when a legal, not a political issue, arises
touching upon the existence of the extent of a legal right that Article 131 is attracted.46
The requirement of Article 131 is that the dispute must involve a question whether of law
or of fact on which the existence or extent of a legal right depends. It is this qualification
which provides the true guide for determining whether a particular dispute falls within the
purview of Article 131. In State of Karnataka v UOI,47 Justice Bhagawati said:
The only requirement necessary for attracting the applicability of Article 131 is that the dispute must be one
involving a question on which the existence or extent of a legal right depends, irrespective of the fact whether
the legal right is claimed by one party or the other and it is not necessary that some legal right of plaintiff
should be infringed before a suit can be brought under that article. Learned Judge further observed while
defining the scope of Article 131: “What has therefore to be seen in order to determine the applicability of
Article 131 is whether there is any relational legal matter involving a right, liberty, power or immunity qua the
parties to the dispute. If there is, the suit should be maintainable, but not otherwise.
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The Supreme Court has power to give whatever reliefs are necessary for the enforcement
of the legal right claimed in the suit, if such legal right is established.48 Article 142 of the
Constitution can also be invoked for the purpose”. Not many cases have been filed under
Article 131. The significant cases filed so far have raised problems of constitutional law
pertaining federalism.49
Original jurisdiction of the Supreme Court is excluded in inter-State water disputes.50
The Supreme Court is not required to adjudicate upon the dispute in exactly the same way
as ordinary courts of law are normally called upon to do for upholding the rights of parties
and enforcement of its orders and decisions. Article 131 does not prescribe that a suit must
be filed in the Supreme Court for complete adjudication of the dispute envisaged therein or
passing of the decree capable of execution in the ordinary way as decrees of the other
courts are. It is open to the aggrieved party to present a petition to the Supreme Court
containing a full statement of relevant facts and praying for the declaration of its rights as
against other disputants. Once this is done, the function of the court under Article 131 is at
an end.51
Unless the plaintiff can establish that there is a legal right, there would be no question of
the Supreme Court deciding any dispute regarding the extent or existence of such right
under Article 131. It was held that mere wrangles between governments have no place
under the scheme of Article 131. It is only when a legal as distinguished from a mere
political issue arises touching upon the existence or extent of a legal right that the Article
is attracted.52 It was held in Haryana case that the word “cause of action” for the purpose
of this Article means nothing more than the ground to sue.53
Some of the Judges in the Rajasthan and Karnataka cases – supra (see Notes 61 and 62)
felt obliged to draw inferences from the fact that Article 131 does not speak of a suit or of
a cause of action. But the inferences so drawn are due to a misapprehension. Since the
States of India have a hierarchy of courts, the Civil Procedure Code lays down conditions
for the exercise of original jurisdiction by reference to the place where the cause of action
wholly or in part arises or to the residence of the defendants or to the location the property
or its value and also provides in which one of the several courts having jurisdiction a suit
must be filed. However, these different conditions for the exercise of original jurisdiction
are not applicable to Article 131, for, it confers exclusive original jurisdiction only on one
court and that is the highest court in India – the Supreme Court. Article 131 defines the
conditions for the exercise of jurisdiction by reference not to a cause of action, but by
reference to the parties to the dispute and by reference to parties to the nature of dispute,
namely, that it must relate to a legal right. Although for the purpose of jurisdiction the
place where the cause of action arises is irrelevant to a suit under Article 131, but for the
purpose of the pleadings between the parties and trial of suit under Article 131, “cause of
action plays as important a part as it does in the pleadings and trial of an ordinary suit”. A
legal dispute between the Union and a State or between one State and another upon which
the existence or non-existence of a legal right depends, necessarily involves the concept of
a cause of action in the plaintiff to file a suit under Article 131. The plaintiff’s cause of
action must be pleaded and proved for the suit must fail if the plaintiff has no cause of
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action or if the cause of action cannot be substantiated or proved by evidence. If the

Supreme Court had borne in mind that suits on a contract between the Union and one or
more States must be filed under Article 131 and likewise suits in respect of transfer of
property, the point we have made above require elaboration. A suit challenging the power
of Parliament to pass a law or of the Union Executive to take executive action must be
decided likewise. The plaintiff impugning the law or the executive action must follow the
prescribed procedure must set out its cause of action and must establish it by evidence as
provided by the Evidence Act. Rules providing for the amendment of pleadings, for the
discovery and inspection of document for interrogation and the like must equally apply to
such a suit. All this harmonizes with the main object of Article 131, namely, that a dispute
between the Union and the States should not be tried in the courts of the State and a
dispute between different States should not be tried in the court of “one” of the States.
And, in both cases, effect is given to that view by providing that such dispute shall be tried
in the Supreme Court, which is the highest court in India.
The learned author concludes by saying, “In the result, our discussion has shown that the
conclusion of the majority in Karnataka State v UOI – supra that the suits were
maintainable is correct though for reasons different from those given in the majority
judgment.54
Under this Article, the Supreme Court is not required to adjudicate upon the disputes
exactly the same way as ordinary courts of law are normally called upon to do for
upholding the rights of parties and enforcement of its orders and decisions. The Article
does not say that the suit must be filed in the Supreme Court for complete adjudication of
the dispute envisaged therein or passing of a decree capable of execution in the ordinary
way as decrees of other courts are. It is open to the aggrieved party to present a petition to
the Supreme Court containing a full statement of the relevant facts and praying for the
declaration of its rights as against other disputes. Once this is done, the function of the
Supreme Court under this Article is at an end.55
The expression “legal right” has been liberally interpreted56 to include the following
questions:
(i) The validity of a law of the Union or of a State.57

(ii) Any claim or dispute between the Union and a State as to their competence, under
schedule VII, to legislate over a subject.58
(iii) A question raised by a State as to the right of the Union to dissolve the State Assembly and
the contrary right of the State to maintain the federal basis of the Constitution against
violation by the Union;59 or an unconstitutional exercise by the Union of the power under
Article 356.59
(iv) A question as to the power of the Union Government to order inquiry, under the
Commissions of Inquiry Act, into allegations of corruption, misuse of governmental
powers, etc. against a minister or ministers or other officers or agents of the State.58
(v) A question as to the governmental powers vested in the Government of the State and its
ministers vis-a-vis those of the Union Government and its ministers.58
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It follows that such legal right is not confined to constitutional or federal questions
only [para 133].59 [See, further, under “Legal right”, below].
(e) Such legal right must appertain to the Government in office at the Union and in the State. 59
(f) The question must not be one which is excepted by the Provisos to Article 131 or by any other
provision of the Constitution.60
(g) The dispute may relate to a legal right either of the plaintiff or the defendant in the suit.58
This Article will apply only where adjudication is necessary in relation to a legal right of one of the
States or the Union vis-à-vis the other States. A writ petition involving the banning of online lotteries
conducted by States of Sikkim and Meghalaya by the State of Karnataka was challenged by the lottery
agents appointed by the States. Karnataka High Court held that since the dispute involves legal rights
of three States, remedy is only under Article 131, which was set aside by the Supreme Court in Tashi
Delek Gaming Solutions Ltd v State of Karnataka.61 It was held that this Article will not apply where
the citizens or private bodies are parties either jointly or in the alternative with the State or the
Government of India. The lottery agents have been appointed under this statute and were agents
coupled with interest. Such an agent had the right to sue or be sued in his own name and hence this
Article will not apply.
In that case, the Supreme Court has held that if by a statutory action the right of an agent to carry on
business is affected, he may in his own right maintain an action. A “quia timet” application is also
maintainable if his right in any manner to carry on business is infringed or threatened.
In regard to the power of Supreme Court to grant interim relief like injunction, it was held that though
provisions of Secs. 36 to 42 of Specific Relief Act will not limit the powers, may nevertheless be
looked into as guidelines as to the nature of equitable relief.62
A decree passed under Article 131 has to be complied with and it cannot be contended that the
execution of the decree could not be implemented on the ground that there could be violence if the
same is implemented. Such a stand would be contrary to Article 144 which will result in Article 131
becoming a dead letter. It was observed that it is the constitutional duty of those in power to create an
appropriate political climate to ensure respect for the constitutional processes and not ignore the
binding decisions only to gain political mileage.63
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Mere wrangles between Governments have no place under the Scheme of this article. It is only when a
legal, as distinguished from a mere political, issue arises touching upon the existence or extent of a
legal right that the article is attracted.64 So far so, the procedural provisions regulating admissibility of
civil suits between ordinary civil courts do not apply in the strict sense when the Supreme Court
exercises the original jurisdiction to decide suits between States.65
A decree passed under Article 131 is a decree in original proceedings. Hence the Supreme Court
(Decrees and Order (Enforcement) Order 1954 clause 2(a) is applicable.66 The doctrine of res judicata
and Or.32 R.2 of Supreme Court Rules are not technical rules of procedure and are fundamental to the
administration of justice in all courts based on the principle that there must be an end to litigation.
In State of Bihar v UOI,67 Supreme Court held that in a suit under Article 131 the only order which the
Supreme Court could make was a declaration adjudicating on the legal right claimed in the suit and
when such declaration was given, the function of the Supreme Court under Article 131 was at an end.
This view was in a subsequent case held to be erroneous. It overlooked the fact that whereas subs.(2)
of section 204 of Govt. of India Act 1935 provided that the Federal Court in its exercise of its original
jurisdiction shall not pronounce any judgment other than a declaratory judgment, no such provision
limiting the power of the Supreme Court in regard to the relief to be granted is to be found in Article
131. There is no such limitation in Article 131 and hence it would not be correct to say that under
Article 131 the Supreme Court would have power to give whatever reliefs which are necessary for the
enforcement of the legal right claimed in the suit, if such legal right is established.68
Article 131 confers original jurisdiction on the Supreme Court to resolve disputes between any two or
more governments. In a federation governed by a written Constitution with division of powers
between the federation and the federation units, there has to be a forum for resolving disputes
involving question of law or fact relating to the legal rights of the federal government vis-à-vis the
Government of federating units or States and between the State Government themselves. The Supreme
Court alone is properly vested with the federal jurisdiction to the exclusion of all other courts. Article
131 is based on section 204 of the Government of India Act 1935. For invoking this federal
jurisdiction under Article 131, the following conditions have to be fulfilled –(1) The dispute must be
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 States on the other or between two or more States; (2) The
dispute must involve a question whether of law or fact on which the existence or extent of a legal right
depends; (3) The dispute should not be one arising out of any treaty, agreement, covenant,
engagement, sanad or other similar instrument which having been entered into or executed before the
commencement of Constitution, continues in operation after such commencement or which provides
that the said jurisdiction shall not extend to such dispute.
Notwithstanding the opening words “Subject to the provisions of this Constitution” in Article 131, the
jurisdiction of High Court under Article 226 is excluded, with the result that any dispute of the nature
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described in Article 131 cannot be entertained by a High Court under Article 226.69 However, a writ
petition filed by a State Government challenging the revisional order of Central Government as a
Statutory Tribunal is maintainable under Article 226 and is not excluded by Article 131.70 Article 131
does not apply if the parties to the dispute include two or more governments or others. In State of
Bihar v UOI,71 the Supreme Court outlined the nature and scope of its jurisdiction under Article 131.
So far as the parties to the dispute are concerned, the framers of the Constitution did intend that they
could only be the constituent units of the UOI. According to the court, a dispute which falls within the
dispute of Article 131 can only be determined in the forum mentioned therein, namely, the Supreme
Court of India, provided there has not been impleaded in any said dispute any private party, be it a
citizen or a firm or corporation along with a State either jointly or in the alternative. A dispute in
which such a private party is involved must be brought before a court, other than a court having
jurisdiction over the matter. The word “State” in Article 131 is used in a restricted sense. The enlarged
definition of “State” given in Article 12 of the Constitution for the purpose of Pts III and IV do not
apply to Article 131. The court is only concerned to give its decision on question of law or of fact on
which the existence or extent of legal right claimed depends. Once the court comes to the conclusion
on the case presented by any disputants and gives its adjudication on the facts or points of law raised,
the function of the court under Article 131 is over. Article 131 does not prescribe that a suit must be
filed in the Supreme Court for the complete adjudication of the case envisaged therein or passing of a
decree capable of execution in the ordinary way as decrees of other courts are. The words “if and in so
far as the dispute involved any question (whether of law or fact) on which the existence or extent of a
legal right depends” in Article 131 are words of limitation on the exercise of that jurisdiction. These
words indicate that the dispute should be in respect of a legal right and not disputes of a political
character. The legal right which is subject of the dispute must arise in the context of the Constitution
and the Federation it sets up.
The Supreme Court was called upon to decide disputes between the UOI and the States on several
occasions and in a variety of matters. The State of West Bengal instituted a suit against the UOI for a
declaration that the Parliament is not competent to make a law authorising the UOI to acquire land or
rights in or over lands which are vested in a State and the Coal Bearing Areas (Acquisition and
Development) Act XX of 1957 enacted by Parliament and particularly sections 4 and 7 thereof were
ultra vires the legislative competence of Parliament and for an injunction restraining the defendants
from proceeding under the provisions of these sections of the Act, in respect of Coal Bearing lands
vested in the plaintiff. The Supreme Court dismissed the suit on merits.72
In State of Karnataka v UOI,73 one of the issues framed was regarding the maintainability of the suit
for a declaration that the Central Government’s notification constituting a Commission of Inquiry to
go into certain changes levelled against the Chief Minister of State under section 3 of Commission of
Inquiry Act 1952 is illegal and ultra vires. The preliminary objection raised on behalf of the UOI was
that the impugned notification did not affect the plaintiff-State as the proposed inquiry was against the
Chief Minister and certain other Ministers as individuals and not against the State of Karnataka. The
issue was decided in favour of the plaintiff-State once again by a narrow majority 4 : 3.74
Exclusive jurisdiction of the Supreme Court may under Article 131 exclude certain matters. Thus – (1)
Parliament may by law exclude Supreme Court’s jurisdiction under Article 262. According to this
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article, disputes or complaints with respect to use distribution or control of waters in any inter-State
river or river valley can be adjudicated by the respective statutory tribunals. In exercise of the
constitutional power under Article 262(1), the Parliament, in fact has enacted a law called the inter-
State Water Disputes Act 1956 and section 11 of the said Act provides that neither the Supreme Court
nor any other court shall have jurisdiction in respect of any water dispute which could be referred to a
Tribunal under the Act. (2) Matters concerning the distribution of revenue between the Union and
States, measures needed to augment the Consolidated Funds of the Union and the States and any
matters referred to the Finance Commission under Article 280 are outside the purview of the original
jurisdiction of the Supreme Court. (3) Adjustment of certain expenses and pensions as between the
Union and the States is left by Article 290 to mutual agreement or for determination by an arbitrator.
(4) Under Article 143, notwithstanding anything in Article 131, the President may refer a dispute to
the Supreme Court for opinion.75
The only requirement necessary for attracting the applicability of Article 131 is that the dispute must
be one involving a question, whether of law or fact, on which the existence or extent of a legal right
depends, irrespective of the fact whether the legal right is claimed by one party or the other and it is
not necessary that some legal right of the plaintiff should be infringed before a suit can be brought
under this article. The words in Article 131 “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” are words of
limitation on the exercise of jurisdiction. These words indicate that the dispute should be in respect of
legal rights and not disputes of a political character.76
It is not necessary that the right must be a constitutional right. All that is necessary is that it must be a
legal right. And, once the legal right is established, the court may provide whatever reliefs are
necessary for the enforcement of the legal right and not stop merely at a declaration of the right.77
What has to be seen in order to determine the applicability of Article 131 is whether there is any
relational legal matter involving a right, liberty, power or immunity qua the parties to the dispute. If
there is, the suit would be maintainable, but not otherwise. Where the Central Government appointed a
Commission under the Commission of Inquiry Act to inquire into the conduct of the Chief Minister
and other Ministers of State, the matter could legitimately be raised before the Supreme Court under
Article 131. It is not possible to make a distinction between a State and its Government. The
Commission of Inquiry is a fact finding body having no power to pronounce a binding or definitive
judgment. Its function is to ascertain facts or to establish responsibility of Ministers for particular
decision. Therefore, the appointment of an Inquiry Commission to probe into allegation of corruption,
etc. against State Ministers does not constitute interference with the executive function of the State
Government. Such an Inquiry Commission does not raise directly or indirectly the subject of Centre-
State relationship.78
Review is not maintainable on the decision rendered under this Article merely because there is no
appeal.79
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[Art 131.3.4] ‘Subject to the provisions of this Constitution’
The jurisdiction of the Supreme Court in disputes as to the existence of a legal right between the
Union and the States or between the States inter se is exclusive, except in certain matters excepted by
other provisions of the Constitution. The following matters appear to be excluded from the original
jurisdiction of the Supreme Court and vested in other tribunals, by the Constitution:
(i) Disputes specified in the Proviso to Articles 131 and 363(1).
(ii) Complaints as to interference with inter-State water supplies, referred to the statutory tribunal
mentioned in Article 262, if Parliament so legislates.
Inter-State Water dispute
Since Parliament has enacted the Inter-State Water Disputes Act [XXXIII of 1956], Article 262 has
now to be read with section 11 of that Act, which says:
Notwithstanding anything contained in any other law, neither the Supreme Court nor any other Court shall have or exercise
jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act.
Hence, no suit under Article 131 lies to challenge the validity of an order of a Tribunal set up under
this Act. It is by virtue of this decision that the Supreme Court dismissed in limine the suit brought by
the State of Karnataka challenging the interim order of the Tribunal relating to the Cauvery Water
Dispute vis-a-vis the State of T.N.80
The question of maintainability has to be decided upon the averments made by the plaintiffs and the
reliefs sought for and taking the totality of the same, and not by spinning upon paragraph of the plaint
and then deciding the matter. Where the averments of the plaint and the reliefs sought for are based on
an “adjudicated dispute” for the enforcement whereof is sought by filing a suit, the same is not barred
under Article 262 read with section 11 of the Inter State Water Disputes Act, 1956, since it is not a
water dispute. Hence a suit is maintainable.81 It was held that in case of any breach of implementation
of decision rendered by Tribunal constituted under section 4 of the Act gave its decision on the
question of sharing of water, if user of such waters in a particular way by executive action of one
riparian State prejudices the interest of another riparian State, then the grievance of the affected State
would amount to a “fresh water dispute” in which case Article 131 could not be invoked. It has to be
considered by the tribunal. It was further observed that a suit raising dispute relating to non-
implementation of a binding decision is maintainable under this Article.82
A water dispute between two States can be brought only by a State and not by an individual or a
society. An individual or society has no locus standi to raise a dispute questioning the validity of the
Act or the setting up of the Tribunal or the reference of the disputes for adjudication to the tribunal.83
But in a case where a society filed a writ petition and the State Government effectively joining the
dispute by supporting and adopting the stand of the petitioner-society, rejecting the petition on the
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technical ground as to maintainability was held to be wholly unfair and unjust. The petition was
treated as one filed by the Government, though no formal order was made of transposition in the
absence of specific request.84
(iii) Matters referred to the Finance Commission [Article 280]
(iv) Adjustment of certain expenses as between the Union and the State. [Article 290]
(v) A reference to the Supreme Court under Article 143(2), read with the Proviso to Article 131.
[Art 131.3.5] ‘Legal right’
The term “legal right” in this Article is a right of a party recognized and protected by a rule of law, the
violation of which would be a legal wrong done to his interest and respect for which is a “legal”85
duty, even though no action may lie. The only ingredients are legal recognition and a legal protection,
and not enforceability by action in a court of law.86
The jurisdiction conferred on the Supreme Court by Article 131 of the Constitution should not be
tested on the anvil of banal rules which are applied under the Code of Civil Procedure for determining
whether a suit is maintainable. Article 131 undoubtedly confers “original jurisdiction” on the Supreme
Court and the commonest form of a legal proceeding which is tried by a court in the exercise of its
original jurisdiction in a suit. But a constitutional provision which confers exclusive jurisdiction on the
Supreme Court to entertain disputes of a certain nature in the exercise of its original jurisdiction
cannot be equated with a provision conferring a right on a Civil Court to entertain a common suit so as
to apply to an original proceeding under Article 131, the canons of a suit which is ordinarily triable
under section 15 of Code of Civil Procedure, by a court of the lowest grade competent to try it.
Advisedly, the Constitution does not describe the proceedings which may be brought under Article
131 as a “suit” and significantly Article 131 uses words and phrases not commonly employed for
determining the jurisdiction of a court of first instance to entertain and try a suit. It does not speak of a
“cause of action”, an expression of known and definite legal right in the words of witness action.
Instead, it employs the word “dispute” which is no part of elliptical jargon of law. But above all,
Article 131 which in a manner of speaking is a self-contained Code on matters falling within its
purview provides expressly for the condition, subject to which an action can lie under it. That
condition is expressed by the clause “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”. By the very term of the article,
therefore, the sole condition which is required to be satisfied for invoking the original jurisdiction of
the Supreme Court is that the dispute between the parties referred to clauses (a) to (c) must involve a
question on which the existence or extent of a legal right depends.87
Article 131 confers exclusive original jurisdiction on the Supreme Court in respect of disputes covered
by that article. The article is attracted only when a dispute arises between or amongst the States and
the Union in the context of the constitutional relationship between them and the powers right, duties,
immunities, liabilities, disabilities, etc. following therefrom. Any dispute which may arise between a
State in the capacity of an employee in a factory, a manufacturer of goods subject to excise duty, the
holder of a permit to run a stage carrier, a trade or businessman carrying on business not incidental to
the ordinary function of the Government, a consumer of railway service, etc., like any other private
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party on the one hand and the UOI on the other cannot be. A court has original jurisdiction when it has
authority to hear and determine a case in the first instance. It has exclusive jurisdiction when it has
authority to hear and determine a case which cannot be heard or determined by any other court. In a
federal or quasi-federal structure, which the Indian Constitution sets up, disputes may arise between
the Government of India and one or more of the States or between two or more States and a forum
should be provided for the resolution of such disputes and that this forum should be the highest court,
so that final adjudication could be achieved expeditiously. This article serves that purpose. Article 131
imposes two limitations on the exercise of the original jurisdiction by the Supreme Court, first as to
the party and second as to the subject matter – (1) There must be inter-State dispute i.e., the dispute
must be between the units of the Union or between the Union and any one or more States or between
the Union and any State or States on the other side. The idea behind this condition is that if there is a
dispute between two States or between the Union and the States, it is not desirable that it should be
litigated in the court of one of the disputant parties. The Supreme Court in its original jurisdiction
cannot entertain suits brought by private individuals against the Govt. of India. When a private
individual has a claim against the Govt. of India, the case must go in the first instance to the local
court and from there it can go to the Supreme Court in appeal provided that the appeal fulfills other
requirements of the law. In State of Bihar v UOI,88 the court held that a registered company under the
Indian Companies Act did not fall within the original jurisdiction because a body like the Hindustan
Steel Ltd. was not a “State” for the purpose of Article 131.
In suits by the State Government for compensation, etc. against railway administration, UOI is a
necessary party. These suits, however, cannot be filed under Article 131 because they did not involve
any question with respect to right or claims either of the States or Union as such, but only to rights and
claims relating to ordinary business or commercial transactions which are not in any way different
from similar transaction between private parties.89
In State of Rajasthan v UOI,90 a question arose whether “State” in Article 131(a) also includes within
its purview “State Government”. Justice Chandrachud observed that the true construction of Article
131(a), true in substance and true pragmatically is that a dispute must arise between the UOI and a
State. Such a dispute cannot be a dispute which arises out of the difference between the Govt. in office
at the Centre and government in office in the State. The purpose of Article 131 is to provide a forum
for the resolution of disputes which must involve a question whether of law or fact on which the
existence or extent of a legal right is based, not a mere political issue. The issuance of a directive from
the Government of India to State Government that Chief Ministers should tender a certain advice to
their Governors and the dissolution of State assemblies on the grounds mentioned in Home Minister’s
letters to Chief Ministers raises a legal, not a political issue arising out of the existence and extent of a
legal right falling within the purview of Article 131. The legal right of the State consists in their
immunity in the sense of freedom from the power of the Union Govt. and to contend in the absolute
that the Centre has no power to dissolve the State Assemblies. However, it is not necessary for
attracting Article 131 that the plaintiff must assert a right in itself. It is sufficient for the plaintiff to
question the legal or constitutional right asserted by the defendant, be it the Government of India or
any other State. Learned Judges Goswami, Untwalia and Justice Fazal Ali did not agree with this view
and observed that the “State” cannot be identified with the Government of the State. A dispute
between the Government and the Government of a State does not come within the purview of Article
131. In the present case, even after the dissolution of the Assembly, the State will continue to have a
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government for the time being as provided for in the Constitution in such a contingency.91
In State of Karnataka v UOI,92 Supreme Court had occasion to consider the nature, scope and
applicability of Article 131. On the question whether any legal right of the State is involved when the
Central Government notified the appointment of a Commission of Inquiry on charges of corruption,
etc. against the Chief Minister and other Ministers of the State and whether the suit brought by State
Govt. was maintainable following the decision in the Rajasthan Dissolution case,93 the Supreme
Court, by a majority, held that the suit was maintainable. It was observed that a distinction between
the State and its Government is at the most one between the whole and inseparable part of the whole.
It would be immaterial as regards claims on behalf of either the State or the Government whether the
two are distinct juristic entities. Even if they could be distinctly separate, the claim of the Govt. would
be that of the State.94 Learned Judges Untwalia, Shingal and Jaswant Singh in their dissent judgment
maintained that a restricted meaning should be given to the scope of the suit filed under Article 131.
(2) Subject matter.—The dispute must involve any question on which the existence or extent of a legal
right depends. A legal right is an interest recognised and protected by a rule of legal justice – an
interest the violation of which would be a legal wrong done to him, whose interest it is, and respect for
which is a legal duty.95
In United Province v Governor General-in-Council,96 a case under section 204 of Govt. of India Act
1935 which defined the exclusive original jurisdiction of the Federal Court in a language similar to
that used in the present article, the Federal Court held that although a legal right is commonly
accompanied by the power of instituting legal proceedings for the enforcement of it, yet it is not
necessarily the case and does not pertain to the essence of the conception. In that case, the plaintiff
brought a suit against the defendant for the recovery of certain sums of money which, he alleged, were
wrongfully credited to the cantonment fund. The defendant inter alia pleaded that no suit could be
instituted by a province against Government of India under the law prevailing at the relevant period,
the dispute was one which was not justiciable before the Federal Court in its original jurisdiction. The
Federal Court held that the suit would lie, because the dispute involved a question on which the
existence or extent of a legal right depended. It was held: “The term “legal right” used in section 204
obviously means a right recognised by law and capable of being enforced by the power of the States,
but not necessarily in a court of law. It is a right of an authority recognised and protected by a rule of
law, a violation of which would be a legal wrong to his interest and respect for which is a legal duty,
even though no action may actually lie. The only ingredient seems to be a legal recognition and a legal
protection. The mere fact that under the previous Act, the provincial government’s subordinate
administration under the control of the Central Government and could only have made a
representation to the Governor General-in-Council or Secretary of State would not be sufficient in
itself for holding that the former could not possibly possess any legal right at all against the Central
Government, even in respect of rights conferred upon them by the provisions of the Act or rules made
thereunder”.
But where the claim made by a party is dependent not on the law, but on non-legal consideration, the
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court has no jurisdiction under Article 131. The manner must be such as may properly be taken to the
court. A matter in order to be justified must be such that a controversy of a like nature could arise
between individual persons and must be such that it can be determined upon principles of law.97 The
words in Article 131 “if and in so far as the dispute involved any question (whether of law or fact) on
which the existence or extent of a legal right depends” are words of limitation on the exercise of that
jurisdiction. These words indicate that the dispute should be in respect of legal rights and not disputes
of a political character.98
What Article 131 requires is that the dispute must be one which involves “a question” on which the
existence or extent of a legal right depends. This article does not say that the legal right must be of the
plaintiff. It may be that of the plaintiff or of the defendant. What is necessary is that the existence or
extent of the legal right must be in issue in the dispute between the parties. There is no reference to “a
suit” or “cause of action” in Article 131 and the article confers jurisdiction on the Supreme Court with
reference to the character of the dispute which may be brought before it for adjudication. The
requirement of “cause of action” which is necessary in a suit cannot therefore be imported while
construing the scope and ambit of Article 131. The word “right” is used therein in a generic sense.
Thus, in Rajasthan Dissolution case 1 it was held that the suit was maintainable within the scope and
ambit of Article 131 as it sought to enforce a legal right of the States under the Constitution due to the
unconstitutional rights of the States to insist that their constitutional status shall not be violated by
unconstitutional assault under Article 356. So also, in State of Karnataka v UOI,2 the claim of the
State was held to raise a “legal dispute” as to the extent of the power of a State alone to investigate
and control misuse of governmental power by the Chief Minister and other Ministers of the State and
the existence of a superior or co-ordinate power in the Central Government to enquire into the conduct
of the Chief Minister and other Ministers of the State in the discharge of their governmental function.
A suit under this article is maintainable if one of the State parties refuses to honour a decision of the
inter-State Water Disputes Tribunal. The court may, however, not issue a mandatory injunction in
such cases without any definite conclusion on the question of irreparable injury and balance of
convenience as well as positive data about the adverse effect in the absence of such injunction.3
Under Article 131, the Supreme Court is not required to adjudicate upon the disputes exactly in the
same way as ordinary court of law are normally called upon to do for upholding the rights of parties
and enforcement of its orders and decision. Article 131 does not prescribe that a suit must be filed in
the Supreme Court for complete adjudication of the dispute envisaged therein or passing of a decree
capable of execution in the ordinary way as decrees of other courts are. It is open to the aggrieved
party to present a petition to the Supreme Court containing a full statement of relevant facts and
praying for a declaration of its rights as against other disputes. Once this is done, the function of the
Supreme Court under Article 131 is at an end.4
The exclusive jurisdiction conferred on the Supreme Court under this article is subject to the other
provisions of the Constitution. In the following matters, the exclusive jurisdiction of Supreme Court is
excluded by the Constitution – (a) The proviso to Article 131 declares that the jurisdiction of the
Supreme Court does 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 the Constitution or which provides that the jurisdiction shall not extend to such a
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dispute. A dispute involving interpretation of these documents has evidently been left within the
exclusive discretion of the executive. (b) Parliament may by law exclude the jurisdiction of the
Supreme Court in disputes between States with respect to the use, distribution or control of waters of
any inter-State river or river valley. In such disputes, different modes of adjudication may be
prescribed.5 (c) Matters referred to the Finance Commission. (See Article 290). (d) Adjustment of
certain expenses between the Union and the State. (See Article 290).
The UOI and each one of the States is treated as a person in the eyes of law. A State may sue and be
sued. The Govt. of India may sue or be sued in the name of UOI. The government of a State may sue
and be sued in the name of the State. (See Article 370).
A suit under Article 131 is not an ordinary suit and the phrase “cause of action” is conspicuous by its
absence in this article. Or.23 R.6(o) of Supreme Court Rules must be read and construed in the context
of Article 131. The phrase “cause of action” used therein means nothing more than the grounds to
sue.6
Thus, under the Government of India Act, 1935, the Provinces could sue the Central Government for
their legal right accruing prior to the commencement of the Act of 1935, though at that time they had
no right of action against the Central Government.77 It was observed:
Where a statute affords a new mode of suing, the cause of action need not arise sub-sequently to the period when the statute comes
into operation. Where a statute creates a new jurisdiction, the new jurisdiction takes up all past cases, and there is not the slightest
injustice in this, for although the circumstances may have occurred prior to the passing of the statute, the suit or action may have
been commenced subsequently.86
It was held in that case that “the term “legal right” used in section 204 obviously means a right
recognised by law and capable of being enforced by the power of the State, but not necessary in a
court of law. It is a right in an authority recognised and protected by a rule of law, a violation of which
would be a legal wrong to his interest and respect for which is a legal duty, even though no action may
actually lie. The only ingredient seems to be a legal recognition and a legal protection. The mere fact
that under the previous Acts, the provincial governments were subordinate administrators under the
control of the Central Government and could only have made a representation to the Governor-
General-in-Council or the Secretary of State would not be sufficient in itself for holding that the
former could not possibly possess any legal right at all against the Central Government, even in
respect of rights conferred upon them by the provisions of the Act or rules made thereunder.”
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The expression “legal right” suggests that the right must be founded on some rule of positive law as
distinguished from political considerations with which courts of justice have no concern. It would
exclude questions of policy, in the absence of violation of any constitutional provision.7 The term
“legal right” includes rights conferred by statute as well and not merely rights which are claimed
independently of any statute.8 It means legally enforceable rights and not purely personal rights and/or
personal contract having no statutory force.9
The test of a matter being justiciable is—can it be sustained on any principle of law that can be invoked as applicable? The
expression “legal right” would, it would seem, also include equitable rights.10
Again, the law involved need not be only Union law. If the condition as to parties is satisfied, the
Supreme Court will adjudicate the rights of the parties, whatever be the law applicable. The validity of
a law of the Union or State, is itself a question as to “legal right”.11
On the other hand, it would exclude a mere “advice” of a Union Minister which does not amount to a
“direction” of the Union to a State.12
From a survey of the American and Australian Constitutions and the Government of India Act, it may
be stated that the Union and the States may be parties to a suit as against each other in the following
causes inter alia,—(a) Questions relating to their respective legislative and taxing powers; (b)
Questions relating to territory; (c) Injury to the health or property of the residents of one State by the
action of another State; (d) Questions relating to respective revenue and property.
But our Constitution excludes some of these matters from justiciability; e.g., questions relating to
distribution of revenues is excluded by vesting the matter in a specific authority. [Article 280]
On the other hand, the expression “legal right” has been liberally interpreted by the Supreme Court.
The general laws relating to injunction are contained in sections 36 to 42 of Specific Relief Act 1963.
Although these provisions may not limit the powers of the Supreme Court under Article 131,
nevertheless, they provide valuable guidelines as to the nature of this form of equitable relief.13
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The fact that there is no appeal against an order passed under Article 131 does not confer a right of
hearing of the review petition in open Court.14
A decree of Supreme Court under Article 131 has to be complied with. Resisting the execution of a
decree on the ground that it would have a political fall-out would result in the subversion of the
Constitution. It would be an endorsement of anarchy and lead to disintegration of the country. Such a
stand would be contrary to Article 144 and result in Article 131 becoming a dead letter. It is the
constitutional duty of those in power to create an appropriate political climate to ensure respect for the
constitutional processes and not ignore the binding decision only to gain political mileage. The court
rejected the plea that there could be violence if the decree was implemented.15
[Art 131.3.6] ‘State’
This word has been liberally interpreted to include not only the juristic entity of a State included
within the UOI [Article l(l), ante], but also the Government of a State, in the generic sense.16 In this
sense, the word “Union” would represent the whole of the people of India and their interests while the
word “State” would represent a part thereof, namely, the people residing in a State and their
interests.17
In that case, an objection was taken as to the maintainability of the suit on the ground that the suit was
not between Government of India and any State “as such” but between the “Government of India and
State Governments”. The absence of expression “State Government” in Article 131 and the use of the
word “State” instead was taken as a ground to contend that the dispute, to fall under Article 131, must
be between the Government of India and the States and not between Government of India and State
Government. Much emphasis was also placed on the expression “Government of India” and not
“UOI” in the Article. The preliminary objection was found to be not tenable. It was held by majority
that the expression “Government of India” meant “UOI”.
According to eminent Jurist H.M. SEERVAI, the conclusion in majority decision in Rajasthan’s case
is correct, but not the reasoning. According to the learned author, the expression “Government of
India” in Article 131 was an “inadvertent drafting error”. Reliance is placed on the legislative
history.18
The dispute between the UOI and a State cannot but be a dispute which arises out of differences
between the Government in office at the Union and the Government in office in the State.19 The fact
that the State acts through ministers cannot affect the maintainability of a suit under Article 131. The
State can act not merely through the Council of Ministers or the Government as a whole but also
through individual ministers. Hence, the official acts of a minister cannot be distinguished from those
of the State on whose behalf he acts.19 Hence, when the Union Government has issued a notification
appointing a Commission of Inquiry to investigate into alleged misuse of governmental power of the
State by a minister or ministers, and the State brings a suit under Article 131, claiming that the State
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Government alone had the power to investigate into and control its ministers who were responsible to
the State Legislature, such suit is maintainable,19 because the claim of the State raises a dispute as to
the extent of the power of the State and the Union Government relating to the matter, and their inter se
relationship is vitally interested in it,19 and the whole of the people of India, whom the Union
Government represents, would be affected by the claim in such Suit.19
But disputes between two departments of government cannot be tested in court under this Article. It
was held that the framers of the Constitution or Code of Civil Procedure, 1908 that two departments of
a State or UOI will fight a litigation in a court of law. The Supreme Court directed that committees
should be constituted to resolve inter-department disputes, whose decision shall be final.20
2. On the other hand, it has been held that Article 131 would be attracted only when the dispute arises
between or amongst the States and the Union in their constitutional capacity21 and not in their
contractual capacity, e.g., a State laying claims for loss or damage as a consignee of goods by a Union
Railway;22 or in the capacity of a trader, employer in a factory or manufacturer of goods subject to
excise duty23 or holder of a permit to run a stage carriage.22 In the latter category of cases, the suit
should be instituted before the ordinary courts which would have tried a like cause brought by a
private litigant.22
3. Nor would the word “State” in Article 131 include agencies and instrumentalities of the State,1
which may come under the enlarged definition of “State” under Article 12, such as the Hindusthan
Steel Ltd. 21
It is a noticeable feature of our Constitution that the number of suits under this Article so far have
been very few.24 Of course, even in the United States, the number of cases under the original
jurisdiction of the Supreme Court have not been many,25 but the lack of such cases in India is
apparently due to a greater degree of dependence of the States upon the Union. Whatever disputes that
may have arisen directly between the Union and the States must have been settled by negotiation and
agreement. Even in matters arising between two States, the advice and intervention of the Union
usually settle the differences.26
[Art 131.3.7] Scope of suit under Article 131 and remedies therein
1. In State of Bihar v UOI,27 it was held that Article 131 did not contemplate a suit for complete
adjudication of all the issues in the dispute between the parties, resulting in an executable decree but
merely a declaration of the legal questions on which the existence or extent of a legal right depended.
2. The foregoing view has lost its strength in view of the pronouncements in a later case, that in the
Bihar case, the court had overlooked the provision in Article 142(l) [to which there was no
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corresponding provision in the Government of India Act, 1935].
This view was in a subsequent case held to be erroneous. It overlooked the fact that whereas sub-
section (2) of Article 204 of Govt. of India Act 1935 provided that the Federal Court, in exercise of its
original jurisdiction, shall not pronounce any judgment other than a declaratory judgment, no such
provision limiting the power of the Supreme Court in regard to the relief to be granted is to be found
in Article 131. There is no such limitation in Article 131 and hence it would not be correct to say that
the Supreme Court could only give a declaratory judgment in a suit under Article 131. The Supreme
Court would have power to give whatever reliefs are necessary for enforcement of the legal right
claimed in the suit, if such legal right is established.28
In view of Article 142(l), there is no reason why the relief under Article 131 should be confined to a
mere declaration. It may end in a decree for any relief which any other court of original jurisdiction is
capable of passing.
It is now settled that the conferment of jurisdiction is under special circumstances and for special
reasons having the concept of justice being the predominant factor behind the inclusion of such an
Article in the Constitution. It was held that ordinary rule or procedure cannot be made applicable in
such special circumstances. It was observed that taking into consideration Article 142, the court has
the power, authority and jurisdiction to pass any order or issue any direction as may be found
necessary to meet the ends of justice. 29
When a court is given exclusive jurisdiction in respect of a dispute between parties, it is reasonable to
hold that the court has power to resolve the whole dispute including the enforcement of decree or
orders especially when provision has been made for such enforcement. The words “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” used in Article 131 are meant to emphasise the fact that the dispute must be one
relating to the legal right and not a dispute on the political plane not based on the legal right.30
When a court is given exclusive direction in respect of a dispute between parties, it is reasonable to
hold that the court has power to resolve the whole dispute, including enforcement of its decrees or
orders especially when provision has been made for such enforcement. The words “if and in so far as
the dispute involves any question (whether of law or fact) on which the existence of a legal right
depends” used in Article 131 of the Constitution are meant to emphasise the fact that the dispute must
be one relating to the legal rights and not a dispute on the political plane not based on a legal right.31
Article 131 of the Constitution subject to the other provisions of the Constitution confers original
jurisdiction on the Supreme Court over a dispute between the Central Government and one or more
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States or between two or more States subject to the condition that the dispute involves any question
whether of law or fact on which the existence or extent of a legal right depends. Article 262(1) of the
Constitution authorises the Parliament to make law for adjudication of any dispute or complaint with
respect to the use, distribution or control of waters of, or in inter-State river or river valley. Sub-art.(2)
of Article 262 also authorises the Parliament to provide by law excluding the jurisdiction of Supreme
Court or any other court in respect of a dispute or complaint as is referred to in clause (1). Thus,
Article 131 being subject to other provisions of the Constitution including Article 262, if Parliament
has made any law for adjudication of any water dispute or a dispute relating to other provisions of the
Constitution including Article 262(1) if the Parliament in fact has enacted the law called Inter-State
Water Disputes Act 1956 and section 11 of the said Act provides that neither the Supreme Court nor
any other court shall have jurisdiction in respect of any water dispute which could be referred to a
Tribunal under the Act.32
There are two limitations in regard to the dispute which can be brought before the Supreme Court
under Article 131. One is in regard to parties and the other is in regard to the subject matter. The
article provides in so many terms that the dispute must be between the Govt. of India and one or more
States or between two or more States. The object of the article seems to be that since in a federal or
quasi-federal structure which the Constitution seeks to set up, disputes may arise between the Govt. of
India and one or more of the States or between two or more States, a forum should be provided for the
resolution of such dispute and that forum should be the highest court in the land, so that final
adjudication of such dispute could be achieved speedily and expeditiously without either party having
to embark on long, tortuous and time consuming journey through a hierarchy of courts. The article is a
necessary concomitant of a federal or quasi-federal form of Government of India and it is attracted
only when the parties to the dispute are the Government of India or one or more States arrayed on
either side. This other limitation as to the subject matter flows from the words “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”. These words clearly indicate that the dispute must be one affecting the existence or extent
of a legal right and not a dispute on the political plane not involving a legal aspect. It was put by
Justice Chandrachud very aptly in his judgment in State of Rajasthan v UOI,33 as follows:
Mere wrangles between have no place under the Scheme of that article. It is only when a legal as distinguished from a mere
political issue arises touching upon the existence or extent of a legal right that the article is attracted. Hence the suit in the present
case would obviously not be maintainable unless it complies with both these limitations.
In Vedire Venketa Reddy v UOI,34 a petition was filed by the residents of Andhra Pradesh, projecting
the cause of the owners of land likely to be adversely affected by the implementation of the
project/construction of dam. It was held that such a grievance could only be made by or on behalf of
the person interested and not by any of the riparian States. Therefore, neither the bar contained in
section 11 of the Inter-State Water Disputes Act or Article 262 of the Constitution would apply nor
Article 131 of the Constitution has any relevance.
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The dispute between the Government of India and a State cannot but be a dispute which arises out of
the differences between the Govt. in office at the Central and the Government in office in the State.
“In office” means “in power”, but the use of the latter expression may prudently be avoided with the
realisation of what goes with power. But there is a further pre-requisite which narrows down the ambit
of the class of dispute which falls within Article 131. That requirement is that the dispute must in-
volve a question whether of law or fact on which the existence or extent of legal right depends. It is
this qualification which affords the true guidance for determining whether a particular dispute is
comprehended within Article 131. Mere wrangles be-tween the Governments have no place in the
scheme of that article. They have to be resolved elsewhere and by means of solemn and sacrosanct
than a court proceeding. The purpose of Article 131 is to afford a forum for the resolution of dispute
which depends for their decision on the existence or extent of a legal right. It is only when a legal, not
a mere technical, issue arises touching upon the existence or extent of a legal right that Article 131 is
attracted.35
In every case where a dispute is between Government departments and/or between a Govt.
Department and Public Sector Undertaking, the matter should be referred to the High Power
Committee established by the Government pursuant to an order of the Supreme Court dated 11th
September 1991. It is the duty of every Court or Tribunal to demand clearance from the Committee
and that in the absence of clearance, the proceedings must not be proceeded with.36
Under the Scheme of the Constitution, Article 131 confers original jurisdiction of the Supreme Court
in regard to a dispute between two States of the UOI or between one or more States and the UOI. It
was not contemplated by the framers of the Constitution or the Code of Civil Procedure, 1908 that two
departments of a State or the UOI will fight a litigation in a court of law. It is neither appropriate nor
permissible for two departments of State or the UOI to fight a litigation in a court of law. Indeed, such
a course cannot but be determined to the public interest as it also entails avoidable wastage of public
money and time. Various departments of the Government are its limbs and, therefore, they must act in
co-ordination and not in confrontation. Filing a writ petition by one department against another by
invoking the extraordinary jurisdiction of the High Court is not only against the propriety and policy
as it smacks of indiscipline, but also contrary to the basic concept of a juristic person. The States/UOI
must evolve a mechanism to set at rest all inter-departmental controversies at the level of the
Government and such matters should not be carried to a court of law for resolution of the
controversy.37
[Art 131.3.8] Costs
It is discretionary with the Supreme Court to award costs in such a suit.38
[Art 131.3.9] History of the Proviso
The Proviso excludes from the original jurisdiction of the Supreme Court those disputes between the
Union and a State or as between two States which arise out of a treaty, agreement etc. entered into,
prior to the commencement of the Constitution, (between the Government of India and the Ruler of an
Indian State), even though they may still remain in operation. In order to appreciate the position
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relating to such treaties etc., we must go back to the Government of India Act, 1935.
(A) Under the Government of India Act, 1935.—
As has been seen, section 204 of the Act of 1935 provided that the Federal Court should have
exclusive original jurisdiction to decide disputes between any or two or more of the following
parties,—the Federation; any of the Provinces; any of the “Federated States”.
The federal scheme under the Act of 1935 having never come into operation, there was no scope for
any “Federated State” being a party before the original jurisdiction of the Federal Court, under section
204 of the Act. But after the passing of the Indian Independence Act, 1947, amendments were made in
section 204 of the Government to India Act, 1935, by the India (Provisional Constitution). Order,
1947, substituting the words “Acceding States” in place of the “Federated States”, with certain
consequential provisions. As to “Acceding States”, section 6 of the Order provided that—
an Indian State shall be deemed to have acceded to the Dominion if the Governor-General has signified his acceptance of an
Instrument of Accession executed by the Ruler thereof
So, after the above amendment, a dispute to which an Acceding State was a party would come within
the original jurisdiction of the Federal Court, but only if the dispute related to the following matters:
(i) Interpretation of the Constitution Act, Order in Council, etc.; (ii) Interpretation of an Instrument of
Accession as to the extent of authority vested by it in the Dominion of India; (iii) Agreement made
between that State and the Dominion as to the administration of some Dominion law in that State; (iv)
Some matter with respect to which the Dominion Legislature had power to make laws for that State;
(v) Agreement expressly providing that some particular dispute should be within the original
jurisdiction of the Federal Court.
Disputes which were expressly excluded from the jurisdiction of the Federal Court by agreement
between the Dominion and such State were excluded from the scope to section 204.
Now, prior to the advent of the British power, the Indian States were sovereign entities and were
capable of entering into treaties or engagements with East India Co. or the British Crown. When the
British Crown assumed suzerainty over India in 185839 these treaties etc. were maintained. But under
sec. 7(1)(b) of the Indian Independence Act, 1947, these existing treaties etc. lapsed and the Indian
States were left in the same position as they were before the assumption of suzerainty by the British
Crown. It is by virtue of this status that the Indian States entered into agreements of “Accession” with
the Dominion of India.
Though disputes arising out of such Instruments of Accession were not specifically excluded from the
jurisdiction of the Federal Court by sec. 204, it was held, applying the general principles of
International Law, that the Federal Court, as a municipal court, had no jurisdiction to decide disputes
between two independent States, (because an Indian State, when it entered into the Instrument of
Accession, was an “independent State”, after the lapse of suzerainty and paramountcy of the British
Crown),40 except to the extent that it was authorised by Proviso (a)(i) of sec. 204 it-self.41
(B) Under the Constitution, prior to the Seventh Amendment of 1956.—
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By the process of merger and integration some of the Indian States were merged into the States
specified in Pt A of the First Schedule, some were included in the Centrally admin istered States in Pt
C, and those which still remained as distinct entities were specified in Pt B.42
The Proviso to Article 131 provided that—
(a) In the case of the States in Pt B, no dispute which arises out of any pre-Constitution
agreement, covenant, etc., which is in force under the Constitution43 shall come within the
original jurisdiction of the Supreme Court under the present Article. But under Article 143(2)
post, such disputes may be referred to the opinion of the Supreme Court, by the President.
Cases which would come within Proviso (a)(i) of section 204 of the Act of 1935 were thus
specifically excluded by the Proviso to Article 131.
(b) Whether in the case of a State in Pt B, or any other part, if there is any agreement, covenant,
etc., which expressly excludes the jurisdiction of the Supreme Court as regards any dispute,
the original jurisdiction of the Supreme Court shall not extend thereto.
(C) Under the Constitution, after the Seventh Amendment of 1956.—
Since the Constitution (Seventh Amendment) Act, 1956, abolished Pt B States as a separate category,
and brought them under the general category of States, some amendment of the Proviso was
necessary. Verbal amendments have, accordingly been made, combining clauses (i) and (ii) of the
Proviso into one, thus avoiding the possibility of Proviso (ii) referring to post-Constitution
agreements, as was pointed out at p 751 of vol II of the Third Edn of the Commentary.
The Proviso excludes from the jurisdiction of the Supreme Court disputes of the kind mentioned in the
Proviso, whether they arose before or after the commencement of the Constitution.44
[Art 131.3.10] Articles 131 (Proviso) and 363(1)
As the Proviso to Article 131 now stands, it is substantially the same as Article 363(1), post, excepting
that while the Proviso to Article 131 applies to the original jurisdiction of the Supreme Court, Article
363(1) extends to all courts, including the Supreme Court, and that while Article 131 is confined to
suits brought by governmental units. Article 363 extends to all proceedings brought by or against
individuals, where the dispute may be raised.
The textual differences which may be noticed as between the two provisions are—
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(i) Article 363(1) includes not only disputes arising out of the agreements etc. but also disputes
“in respect of any right or liability arising out of the provisions of the Constitution relating to
such agreements etc”. By the latter class of disputes, reference is obviously made to the
matters mentioned in Articles 291(1) and 295(l)(b).
(ii) The case of a treaty or engagement specifically barring the jurisdiction of the Supreme Court
is mentioned in the proviso to Article 131. This is apparently meaningless because this latter
part is also governed by the earlier part, so that it may possibly refer only to a pre-Constitution
engagement, and a pre- Constitution engagement could not be imagined to have specifically
excluded the jurisdiction of the Supreme Court.
Another point of distinction which has been removed by the Amendment, is that while Article 131,
Proviso (i) applied only if the contracting party was a State specified in Pt B, Article 363(1) applied
even where such State had lost its identity by reason of merger or otherwise.45
It is suggested that, instead of keeping the two separate provisions, Article 363(l) may be suitably
amended so as to cover the cases sought to be excluded by the Proviso to Article 131.
Disputes connected with an instrument similar to the instruments mentioned in the proviso also would
be beyond the scope of enquiry by the Supreme Court. It was held that the word “or” indicates that the
succeeding phrase “other similar instrument” is to be read disjunctively. At the same time, the word
“similar” means that the instrument must be of the same nature as those preceding. An instrument, to
fall within the phrase would, in the context, have to be a formal writing by which a right or liability is
or purports to be created, transferred, limited, extended, extinguished or recorded. A document
acknowledging title in a third person is an instrument. The expression “arising out of” used in the
proviso having a wider meaning than “arising under”. Thus, the phrase, therefore, includes not only
matters “arising under”, but also matters “connected with” an instrument and any dispute “connected
with the instrument” would be beyond the scope of this Article and the Supreme Court will have no
jurisdiction to deal with the same. In regard to boundaries of States, it is the Parliament which is to
determine the territorial limits and not the Supreme Court.46
[Art 131.3.11] Articles 131 and 226
Where there is no dispute between the Central and State Governments, remedy under Article 226
would not be barred by reason of Article 131, merely because the State Government seeks to quash a
demand notice under the Excise Act and the Central Government impleaded in that application
because it had earlier dis-missed the application of the State Government as the authority for revision
under the Act.47
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7 Muskrat v U.S., (1911) 219 US 346 (356).
2003 SC 260] .

Dinesh Mishra
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1.015 at p 11.
260] .
[LNIND 1961 SC 206] .
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107 : 1958 SCR 1040 [LNIND 1957 SC 134] .
[LNIND 1977 SC 214] .
SCR 530 [LNIND 1970 SC 40] .
(2006) 2 SCC 1 [LNIND 2006 SC 1219] .
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SCR 206 [LNIND 1986 SC 307] .
40 [LNIND 2001 SC 2120] .
(2001) 4 SCC 558 [LNIND 2001 SC 806] .
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2002 SC 400] .
.

433 [LNIND 1964 SC 346] .
Dinesh Mishra
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SC 206] : (1961) 31 Com Cases 387 .
[LNIND 1962 SC 337] .
95 Scott v Scott, (1913) AC 417 .
359 .
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[LNIND 1978 SC 54] .
(1998) 3 JT 269 .
[LNIND 1978 SC 54] .
(1997) 9 JT 492 .
(1990) 2 SCR 110 [LNIND 1990 SC 177] .
2] : 1986 Cr LJ 320 .
24 1 B1 Com 69.
Dinesh Mishra
Page 145 of 168
(2005) 2 SC 8 .
672 .
(2005) 2 SC 8 .
[LNIND 2002 SC 249] (227).
p 164.
Dinesh Mishra
Page 146 of 168
(1977) 4 SCC 193 [LNIND 1977 SC 268] .
175-76.
SC 1118] (9).
(Supp-2) SCR 659.

(paras. 867, 877, 880, PATHAK, J.).
Dinesh Mishra
Page 147 of 168
SCC 87.
63 Golden v U.K., (1970) 1 EHRR 524 .
65 Re., Mc., (1985) AC 528 (HL).
SC 538] .
Dinesh Mishra
Page 148 of 168
11] .
85 VII CAD 853 and 1000.

165.
Dinesh Mishra
Page 149 of 168
AIR 1979 SC 478 [LNIND 1978 SC 661] .
[LNIND 1950 SC 22] : 1950 AIR 27 .
(1955) 349 US 133].


(1978) 1 SCR 423 [LNIND 1977 SC 268] .
Dinesh Mishra
Page 150 of 168
753] : (1997) 6 SCC 339 [LNIND 1997 SC 753] .
[LNIND 1997 SC 753] .
1994 SC 268 [LNIND 1993 SC 1231] : (1993) 4 SCC 441 .

Dinesh Mishra
Page 151 of 168
1 SCR 423 [LNIND 1977 SC 268] .
[LNIND 1998 SC 457] : (1998) 3 JT 269 .
(1988) 6 JT 571 : (1988) 7 Supreme 473 .
1998 SC 930] : (1998) 7 SCC 248 [LNIND 1998 SC 930] .
1169 [LNIND 1953 SC 59] .
8 JT 354 .
II 2nd Edn, pp 1935-1941.
Constitution.

60 M v Home Office, (1994) 1 AC 377 .
67 Re, C. (an Infant), (1939) Ch 363 .
Dinesh Mishra
Page 152 of 168

[LNIND 1978 SC 54] .
457] : (1998) 3 JT 269 .
J).
365 : 1981 Supp SCC 87].
Dinesh Mishra
Page 153 of 168
(1994) 2 SCC 303 [LNIND 1994 SC 160] .
1977 SC 268] .
SCR 659.
Dinesh Mishra
Page 154 of 168
63] .
41 See C6 vol A, pp 349-521.
Constitution Act.


47 supra.
Dinesh Mishra
Page 155 of 168

p 579.


(1971) 1 SCR 697 [LNIND 1970 SC 286] .
206 [LNIND 1986 SC 307] .
206 [LNIND 1986 SC 307] .
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
Dinesh Mishra
Page 156 of 168
SCR 347 [LNIND 1975 SC 432] .
[LNIND 1980 SC 257] .
[LNIND 1953 SC 70] .
(1971) 1 SCR 697 [LNIND 1970 SC 286] .
206 [LNIND 1986 SC 307] .
273 [LNIND 1957 SC 93] .
SC 154] (paras. 950, 1287, 1381, 1586, 1592).
273 [LNIND 1957 SC 93] .
1207] .
(2005) 10 SCC 110 [LNIND 2004 SC 1207] .
Dinesh Mishra
Page 157 of 168
1997 SC 488]: (1997) 3 SCC 261 [LNIND 1997 SC 488].
96 : (1991) 4 JT 361 .
31 Subs. for original provisos (i) and (ii) by the Constitution (Seventh Amendment) Act, 1956, section 5.
32 Subs. for original provisos (i) and (ii) by the Constitution (Seventh Amendment) Act, 1956, section 5.
33 See CONSTITUTIONAL INTERPRETATION by CRAIG R. DUCAT, 8th Edn, pp 17-18.
34 Martin v Hunter’s Lessee, (1816) 1 Wh 304 (332).
36 Ableman v Booth, (1859) 21 How 66 (98).
37 See CONSTITUTIONAL INTERPRETATION BY CRAIG R DUCAT – 8th Edn – pp 17-18.
38 Georgia v Pennsylvania R. Co, (1945) 324 US 439 (464).
39 California v Southern Pacific Co, (1895) 157 US 229 (261).
40 WILLOUGHBY, FUNDAMENTAL CONCEPTS OF PUBLIC LAW, p 488.
41 Missouri v Illinois, (1900) 180 US 208.
42 In India, the Supreme Court shall have no jurisdiction over inter-State waters, if Parliament so legislates under Article 262(2).
Parliament has enacted the Inter-State Water Disputes Act, 1956, under that power (see post).
43 Kansas v Colorado, (1902) 185 US 125.
44 New York v New Jersey, (1921) 256 US 296.
Dinesh Mishra
Page 158 of 168
45 Louisiana v Texas, (1900) 176 US 1.

46 Ohio v West, (1923) 262 US 553.
47 North Dakota v Minnesota, (1923) 263 US 365.
48 Virginia v West Virginia, (1911) 220 US 1.
49 Colorado v Kansas, (1943) 320 US 383 (392).
50 Virginia v West Virginia, (1911) 220 US 1.
51 WILLOUGHBY, FUNDAMENTAL CONCEPTS OF PUBLIC LAW, p 488.
52 Hollingsworth v Virginia, (1798) 3 US 378.

53 Hans v Louisiana, (1890) 134 US 1.
54 Parden v Terminal Ry., (1964) 377 US 184.
55 Minnesota v Hitchcock, (1902) 185 US 373; Kansas v United States, (1907) 204 US 331.
56 U.S. v Texas, (1892) 143 US 621.
57 See Author’s SELECT CONSTITUTIONS OF THE WORLD, 3rd Edn, p 143.
58 3 SCW145.
59 No case under this power has so far been tried by the High Court (NICHOLAS, AUSTRALIAN CONSTITUTION, 1952, p 374);
WYNES, LEGISLATIVE, EXECUTIVE AND JUDICIAL POWERS (1970), pp 422-23.
60 Heimann v Commonwealth, (1935) 54 CLR 126; Bank of N.S.W. v Commonwealth, (1948) 76 CLR 1 (321).
61 N.S.W v Bardolph, (1935) 52 CLR 435.
62 Waterside Workers’ Federation v Gilchrist, (1924) 34 CLR 482; R. v Hickman, (1945) 70 CLR 598 (606).
63 Judiciary and Navigation Acts, in re, (1 921) 29 CLR 257 (265).
64 A.G. for Victoria v Commonwealth, (1945) 71 CLR 237.
65 South Australia v Victoria, (1911) 12 CLR 667.
66 N.S.W. v Commonwealth, (1931) 46 CLR 155.
67 S. Australia v Commonwealth, (1942) 65 CLR 373.
Dinesh Mishra
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68 N.S.W v Commonwealth, (1915) 20 CLR 54.
69 A.G. for Victoria v Commonwealth, (1946) 71 CLR 237 (277); A.G. for Victoria v Commonwealth, (1935) 32 CLR 533.
70 Commonwealih v N.S.W., (1923) 32 CLR 200.
71 R. v Bevan, (1942) 66 CLR 452 (464).
72 Bank of N.S.W. v Commonwealth, (1948) 76 CLR 1.
73 These words were substituted by the words ‘Acceding States”, by the India (Provisional) Constitution Order, 1947.
74 United Provinces v Governor-General in Council, AIR 1939 FC 58 .

75 Governor-General in Council v Province of Madras, (1943) 47 Cal WN (FR) 3.
76 Ramgarh State v Province of Bihar, AIR 1949 FC 55 .
77 State of Seraikella v UOI, (1951) SCR 474 [LNIND 1951 SC 25] : AIR 1951 SC 253 [LNIND 1951 SC 25] .
78 Besides Article 131, some other provisions give the Supreme Court power to try original matters, as distinguished from ‘suits”,
e.g., Article 32, ante. In the Official Reports, the jurisdiction to decide a Petition under Article 32 is described as “Original
Jurisdiction”[cf. Hanif v Estate of Bihar, (1959) SCR 629 [LNIND 1958 SC 58] (631)].
79 Ramgarh State v Province of Bihar, AIR 1949 FC 55.
80 State of Punjab v UOI, AIR 1971 P & H 155 (paras 5 and 30 – FB.
81 State of Mysore v UOI, AIR 1968 Mys 237 (DB) affirmed in AIR 1977 SC 127 [LNIND 1976 SC 375](129) : (1977) 1 SCR 842
[LNIND 1976 SC 375] (895)
82 State of Bihar v UOI, AIR 1970 SC 1446 [LNIND 1969 SC 353]: (1970) 1 SCC 67 [LNIND 1969 SC 353] : (1970) 2 SCR 522
[LNIND 1969 SC 353].
83 See State of WB v UI AIR 1963 SC 1241 [LNIND 1962 SC 438]: (1964) 1 SCR 371 [LNIND 1962 SC 438].
84 State of Rajasthan v UOI, AIR 1977 SC 1361 [LNIND 1977 SC 214]: (1978) 1 SCR 1 [LNIND 1977 SC 214] : (1977) 2 SCC 592.
85 State of Karnataka v UOI, AIR 1978 SC 64 : (1978) 2 SCR 1 [LNIND 1977 SC 312].
86 See State of Rajasthan v UOI, AIR 1977 SC 1361 [LNIND 1977 SC 214]: (1978) 1 SCR 1 : (1977) 2 SCC 592.
Dinesh Mishra
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88 State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312]: (1977) 4 SCC 608 [LNIND 1977 SC 312] : (1978) 2 SCR 1
[LNIND 1977 SC 312].
89 State of Rajasthan v UOI, AIR 1977 SC 1361 [LNIND 1977 SC 214]: (1978) 1 SCR 1 : (1977) 2 SCC 592.
90 State of WB v UOI, AIR 1963 SC 1241 [LNIND 1962 SC 438].
– supra.
93 State of Rajasthan v UOI, AIR 1977 SC 1361 [LNIND 1977 SC 214]: (1978) 1 SCR 1 : (1977) 2 SCC 592 – supra,
94 State of Bihar v UOI, AIR 1970 SC 1446 [LNIND 1969 SC 353]: (1970) 1 SCC 67 : (1970) 2 SCR 522 [LNIND 1969 SC 353].
96 State of Haryana v State of Punjab, AIR 2002 SC 685 [LNIND 2002 SC 34]: (2002) 2 SCC 507 [LNIND 2002 SC 34].
98 See State of Bihar v UOI, AIR 1970 SC 1446 [LNIND 1969 SC 353]: (1970) 1 SCC 67 [LNIND 1969 SC 353] : (1970) 2 SCR 522
[LNIND 1969 SC 353]; State of Karnataka v State of AP, AIR 2001 SC 1560 [LNIND 2000 SC 727]: (1999) 4 Scale 332 : (2000) 9
SCC 572 [LNIND 2000 SC 722] : (2000) 6 JT 1 [LNIND 2000 SC 727].
1 Tamilnadu Cauvery Neerpasana Vilaiporulgai Vivasayikal Nala Urimai Padugappu Sangam v UOI, AIR 1990 SC 1316 [LNIND
1990 SC 306]: (1990) 3 SCC 440 [LNIND 1990 SC 306] : (1990) 2 SCJ 54.
[LNIND 1969 SC 353].
[LNIND 1969 SC 353].
4 See Tashi Delek Gaming Solutions Ltd v State of Karnataka, AIR 2006 SC 661 [LNIND 2005 SC 955]: (2006) 1 SCC 442 [LNIND
2005 SC 955].
5 State of Orissa v State of AP, (2010) 5 SCC 674 [LNIND 2010 SC 442].
6 State of Karnataka v State of AP, (2000 9 SCC 572 [LNIND 2000 SC 722].
Dinesh Mishra
Page 161 of 168
[LNIND 1969 SC 353].
[LNIND 1969 SC 353].
9 See State of AP v State of Karnataka, AIR 2001 SC 1560 [LNIND 2000 SC 727]: (2000) 9 SCC 572 [LNIND 2000 SC 722].
10 See State of Karnataka v State of AP, AIR 2001 SC 1560 [LNIND 2000 SC 727]: (1999) 4 Scale 332 : (2000) 9 SCC 572 [LNIND
2000 SC 722] : (2000) 6 JT 1 [LNIND 2000 SC 727].
[LNIND 1969 SC 353].
[LNIND 1977 SC 312].
13 See State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312]: (1977) 4 SCC 608 [LNIND 1977 SC 312] : (1978) 2 SCR
1 [LNIND 1977 SC 312]. Also see State of Rajasthan v UOI, AIR 1977 SC 1361 [LNIND 1977 SC 214]: (1977) 3 SCC 592
[LNIND 1977 SC 214] : (1978) 1 SCR 1 [LNIND 1977 SC 214]; State of Karnataka v State of AP, AIR 2001 SC 1560 [LNIND
2000 SC 727]: (2000) 9 SCC 572 [LNIND 2000 SC 722]; State of Haryana v State of Punjab, (2004) 12 SCC 673 [LNIND 2004 SC
663].
14 CONSTITUTIONAL LAW OF INDIA, 4th Edn, vol III, p 2626.
15 State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312]: (1977) 4 SCC 608 [LNIND 1977 SC 312].
16 Besides Article 131, some other provisions give the Supreme Court power to try original matters, as distinguished from ‘suits”,
e.g., Article 32, ante. In the Official Reports, the jurisdiction to decide a Petition under Article 32 is described as “Original
Jurisdiction”[cf. Hanif v Estate of Bihar, (1959) SCR 629 [LNIND 1958 SC 58] (631)].
17 Suits by individuals against the Union or a State will be brought in the ordinary courts, subject to Article 228, post.
18 Cf. Jt. Parliamentary Committee on Indian Constitutional Reform, vol. I, para 322.
19 State of Rajasthan v UOI, AIR 1977 SC 1361 [LNIND 1977 SC 214]: (1977) 3 SCC 592 [LNIND 1977 SC 214], per
BHAGAVATHI, J.
[LNIND 1969 SC 353].
21 State of Rajasthan v UOI, AIR 1977 SC 1361 [LNIND 1977 SC 214]: (1977) 3 SCC 592 [LNIND 1977 SC 214] : (1978) 1 SCR 1
[LNIND 1977 SC 214].
Dinesh Mishra
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22 See State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312] (142 & 143) : (1978) 2 SCR 1 [LNIND 1977 SC 312] :
(1977) 4 SCC 608 [LNIND 1977 SC 312] .
23 See State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312](142 & 143) : (1978) 2 SCR 1 : (1977) 4 SCC 608 [LNIND
1977 SC 312].
24 State of Rajasthan v UOI, AIR 1977 SC 1361 [LNIND 1977 SC 214]: (1977) 2 SCC 592 : (1978) 1 SCR 1 [LNIND 1977 SC 214].
25 See State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312](145-146) : (1977) 4 SCC 608 [LNIND 1977 SC 312] :
(1978) 2 SCR 1 [LNIND 1977 SC 312].
[LNIND 1977 SC 312] – supra.
27 State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312]: (1977) 4 SCC 608 : (1978) 2 SCR 1 [LNIND 1977 SC 312].
28 State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312](133) : (1978) 2 SCR 1 : (1977) 4 SCC 608 [LNIND 1977 SC
312].
29 State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312]: (1978) 2 SCR 1 : (1977) 4 SCC 608 [LNIND 1977 SC 312].
30 See SALMOND’S JURISPRUDENCE – 11th Edn – pp 267-78.
[LNIND 1969 SC 353],
33 UOI v State of Mysore, AIR 1977 SC 127 [LNIND 1976 SC 375] : (1977) 1 SCR 842 [LNIND 1976 SC 375] : (1976) 4 SCC 531
[LNIND 1976 SC 375] (para- 6).
34 See State of Mysore v UOI, AIR 1968 Mys 237 .
35 State of Bihar v UOI, AIR 1970 SC 1446 [LNIND 1969 SC 353] (1448).
37 See Tashi Delek Gaming Solutions Ltd v State of Karnataka AIR 2006 SC 661 [LNIND 2005 SC 955] : (2006) 1 SCC 442 [LNIND
2005 SC 955] (457).
38 State of Bihar v UOI, AIR 1970 SC 1446 [LNIND 1969 SC 353] (1452) : (1970) 2 SCR 522 [LNIND 1969 SC 353] : (1970) 1 SCC
67 [LNIND 1969 SC 353] (CB). See also Tashi Delek Gaming Solutions Ltd v State of Karnataka, AIR 2006 SC 661 [LNIND 2005
SC 955] : (2006) 1 SCC 442 [LNIND 2005 SC 955] ; UOI v State of Rajasthan, AIR 1984 SC 1675 [LNIND 1984 SC 243] : (1984)
4 SCC 238 [LNIND 1984 SC 243] ; State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312] : (1977) 4 SCC 608
[LNIND 1977 SC 312] .
39 Ramgarh State v Prov. of Bihar, AIR 1939 FC 55 .
40 UOI v State of Mysore, AIR 1977 SC 127 [LNIND 1976 SC 375] : (1977) 1 SCR 842 : (1976) 4 SCC 531 [LNIND 1976 SC 375]
(para- 6).
Dinesh Mishra
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41 UOI v State of Rajasthan, AIR 1984 SC 1675 [LNIND 1984 SC 243] : (1984) 4 SCC 238 [LNIND 1984 SC 243] ; see also State of
Kerala v General Manager, Southern Railway, AIR 1976 SC 2538 [LNIND 1976 SC 302] : (1976) 4 SCC 265 [LNIND 1976 SC
302] .
42 State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312] : (1977) 4 SCC 608 [LNIND 1977 SC 312] .
43 State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312] : (1978) 2 SCR 1 [LNIND 1977 SC 312] : (1977) 4 SCC 608
[LNIND 1977 SC 312] (paras 202, 276); State of Rajasthan v UOI, AIR 1977 SC 1361 [LNIND 1977 SC 214] : (1978) 1 SCR 1
[LNIND 1977 SC 214] : (1977) 3 SCC 592 [LNIND 1977 SC 214] (paras 92, 105-07, 134-36), per BEG, C.J., CHANDRACHUD,
BHAGWATI AND GUPTA, JJ. [7-Judge Bench].
44 Justice Bhagawati in State of Rajasthan v UOI, AIR 1977 SC 1361 [LNIND 1977 SC 214] : (1977) 2 SCC 592 : (1978) 1 SCR 1
[LNIND 1977 SC 214] .
46 See State of Rajasthan v UOI, AIR 1977 SC 1361 [LNIND 1977 SC 214] : (1978) 1 SCR 1 : (1977) 2 SCC 592 .
47 State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312] : (1977) 4 SCC 608 [LNIND 1977 SC 312] .
48 State of Rajasthan v UOI, AIR 1977 SC 1361 [LNIND 1977 SC 214] : (1978) 1 SCR 1 : (1977) 2 SCC 592 .
49 See M.P.Jain on Indian Constitutional Law – updated 6th Edn (2013) – at pp 297-300.
50 See Tamilnadu Cauvery Neerpasana Vilaiporulgai Vivasayikal Nala Urimai Padugappu Sangam v UOI, AIR 1990 SC 1316
[LNIND 1990 SC 306] : (1990) 3 SCC 440 [LNIND 1990 SC 306] : (1990) 2 SCJ 54 .
51 State of Bihar v UOI, AIR 1970 SC 1446 [LNIND 1969 SC 353] : (1970) 1 SCC 67 [LNIND 1969 SC 353] : (1970) 2 SCR 522
[LNIND 1969 SC 353] .
52 State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312] : (1977) 4 SCC 608 [LNIND 1977 SC 312] ; see also State of
Haryana v State of Punjab, (2004) 12 SCC 673 [LNIND 2004 SC 663] .
53 But see the discussion by learned author H.M. SEERVAI ON CONSTITUTIONAL LAW OF INDIA, 4th Edn,vol. III, p 2635,
paras 25, 39.
54 See H.M. SEERVAI’S “CONSTITUTIONAL LAW OF INDIA” – vol III – pp 2635-2636.
55 State of Bihar v UOI, AIR 1970 SC 1446 [LNIND 1969 SC 353] : (1970) 1 SCC 67 [LNIND 1969 SC 353] .
[LNIND 1977 SC 214] (paras 92, 105-07, 134-36), per BEG, CJ., CHANDRACHUD, BHAGWATI AND GUPTA, JJ. [7-Judge
Bench].
58 State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312] : (1978) 2 SCR 1 [LNIND 1977 SC 312] : (1977) 4 SCC 608
[LNIND 1977 SC 312] (paras 202, 276).
[LNIND 1977 SC 214] (paras 92, 105-07, 134-36), per BEG, CJ., CHANDRACHUD, BHAGWATI AND GUPTA, JJ. [7-Judge
Bench].
61 Tashi Delek Gaming Solutions Ltd v State of Karnataka, AIR 2006 SC 661 [LNIND 2005 SC 955]: (2006) 1 SCC 442 [LNIND
2005 SC 955].
62 State of Haryana v State of Punjab, (2004) 12 SCC 673 [LNIND 2004 SC 663]; see also State of Karnataka v State of A.P (2000) 9
SCC 572 [LNIND 2000 SC 722].
63 State of Haryana v State of Punjab, (2004) 12 SCC 673 [LNIND 2004 SC 663].
64 State of Haryana v State of Punjab (2004) 12 SCC 673 [LNIND 2004 SC 663].
Dinesh Mishra
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65 State of Orissa v State of AP (2010) 5 SCC 674 [LNIND 2010 SC 442].
66 State of Haryana v State of Punjab (2004) 12 SCC 673 [LNIND 2004 SC 663].
[LNIND 1969 SC 353],
68 State of Rajasthan v UOI, AIR 1977 SC 1360 (1378) : (1977) 2 SCC 592.
69 See State of Punjab v UOI, AIR 1971 P & H 155 (paras 5 and 30 – FB).
70 State of Mysore v UOI, AIR 1968 Mysore 237 (DB) affirmed in AIR 1977 SC 127 [LNIND 1976 SC 375](129) : (1977) 1 SCR
842 [LNIND 1976 SC 375] (845)
[LNIND 1969 SC 353],
72 See State of WB v UI AIR 1963 SC 1241 [LNIND 1962 SC 438]: (1964) 1 SCR 371 [LNIND 1962 SC 438].
73 State of Karnataka v UOI, AIR 1978 SC 64 : (1978) 2 SCR 1 [LNIND 1977 SC 312].
74 See AIR 1978 SC 64 : (1978) 2 SCR 1 [LNIND 1977 SC 312].
[LNIND 1969 SC 353]; State of Karnataka v State of AP, AIR 2001 SC 1560 [LNIND 2000 SC 727]: (1999) 4 Scale 332 : (2000) 9
SCC 572 [LNIND 2000 SC 722].
[LNIND 1977 SC 312]; State of Bihar v UOI, AIR 1970 SC 1446 [LNIND 1969 SC 353]: (1970) 1 SCC 67 [LNIND 1969 SC 353] :
(1970) 2 SCR 522 [LNIND 1969 SC 353]; State of Karnataka v State of AP AIR 2001 SC 1560 [LNIND 2000 SC 727]: (1999) 4
Scale 332 : (2000) 9 SCC 572 [LNIND 2000 SC 722].
77 State of Rajasthan v UOI, AIR 1977 SC 1360 (1378) : (1977) 2 SCC 592.
78 See State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312]: (1977) 4 SCC 608 [LNIND 1977 SC 312] : (1978) 2 SCR
1 [LNIND 1977 SC 312].
79 State of Haryana v State of Punjab, (2004) 12 SCC 673 [LNIND 2004 SC 663].
80 Statesman, dated 1 August 1991. See also Re, Cauvery Water Dispute Tribunal, 1993 (Supp-1) SCC 96.
Dinesh Mishra
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81 State of Karnataka v State of AP, (2000) 9 SCC 572 [LNIND 2000 SC 722] .
82 See also State of Haryana v State of Punjab, AIR 2002 SC 685 [LNIND 2002 SC 34] : (2002) 2 SCC 507 [LNIND 2002 SC 34] .
83 Gandhi Sahitya Sangh v UOI, (2003) 9 SCC 356 .
84 T.N. Cauvery Sangam v UOI, (1990) 3 SCC 440 [LNIND 1990 SC 306] : AIR 1990 SC 1316 [LNIND 1990 SC 306] .
85 As distinguished from political matters (see C6, vol A, pp 435 ff.).
86 Cf. United Provinces v Governor-General, AIR 1939 FC 58 (66).
87 See State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312](142 & 143) : (1978) 2 SCR 1 : (1977) 4 SCC 608 [LNIND
1977 SC 312].
88 State of Bihar v UOI, AIR 1970 SC 1446 [LNIND 1969 SC 353]: (1970) 1 SCC 67 [LNIND 1969 SC 353] (69, 70),
89 UOI v State of Rajasthan, AIR 1984 SC 1675 [LNIND 1984 SC 243]: (1984) 4 SCC 238 [LNIND 1984 SC 243].
90 State of Rajasthan v UOI, AIR 1977 SC 1360 (1378) : (1977) 2 SCC 592,
91 See the opinion of Justice Goswami and Gupta (at pp 667-669 and per Fazal Ali, J. at pp 679-83.
92 State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312]: (1977) 4 SCC 608 : (1978) 2 SCR 1 [LNIND 1977 SC 312].
93 Rajasthan Dissolution case, AIR 1977 SC 1361 [LNIND 1977 SC 214]: (1977) 3 SCC 592 [LNIND 1977 SC 214].
94 See State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312]: (1977) 4 SCC 608 : (1978) 2 SCR 1 [LNIND 1977 SC
312].
95 See SALMOND’S JURISPRUDENCE – 10th Edn – p 238.
96 United Province v Governor General-in-Council, AIR 1939 PC 58.
97 See S. Australia v Victoria 12 ComLR 667.
98 State of Bihar v UOI, AIR 1970 SC 1446 [LNIND 1969 SC 353]: (1970) 1 SCC 67 : (1970) 2 SCR 522 [LNIND 1969 SC 353].
Dinesh Mishra
Page 166 of 168
[LNIND 1977 SC 312],
3 State of Karnataka v State of AP, (2000) 9 SCC 572 [LNIND 2000 SC 722].
4 State of Bihar v UOI, AIR 1970 SC 1446 [LNIND 1969 SC 353]: (1970) 1 SCC 67, 68, 69-70 : (1970) 2 SCR 522 [LNIND 1969
SC 353].
5 Re. Cauvery Water Disputes Tribunal AIR 1992 SC 522 [LNIND 1991 SC 1022]: 1993 (Supp-1) SCC 96 : (1991) 4 JT 361.
6 State of Haryana v State of Punjab (2004) 12 SCC 673 [LNIND 2004 SC 663] (687-689) : (2004) 5 JT 72 [LNIND 2004 SC 663].
[LNIND 1977 SC 214] (paras 92, 105-07, 134-36), per BEG, C.J., CHANDRACHUD, BHAGWATI AND GUPTA, JJ. [7-Judge
Bench].
8 Anand Rao v Board of Revenue, AIR 1965 MP 237 [LNIND 1962 MP 176](FB).
9 Pesi Shroff v State of Maharashtra, AIR 1993 Bom 384 [LNIND 1993 BOM 313].
10 Dominion of Canada v Ontario, (1910) AC 637 (647).
11 Cf. United Provinces v Governor-General, AIR 1939 FC 58 (66).
[LNIND 1977 SC 214] (paras 92, 105-07, 134-36), per BEG, CJ., CHANDRACHUD, BHAGWATI & GUPTA, JJ. [7-Judge
Bench].
13 State of Haryana v State of Punjab (2004) 12 SCC 673 [LNIND 2004 SC 663] : (2004) 5 JT 72 [LNIND 2004 SC 663].
14 State of Haryana v State of Punjab (2000) 12 SCC 712.
15 State of Haryana v State of Punjab (2004) 12 SCC 673 [LNIND 2004 SC 663] (at 709) : (2004) 5 JT 72 [LNIND 2004 SC 663].
16 State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312]: (1978) 2 SCR 1 [LNIND 1977 SC 312] : (1977) 4 SCC 608
[LNIND 1977 SC 312] (paras 141-49, BEG, C.J.; 159-65, CHANDRACHUD, J.; 198-203, BHAGWATI J.; 276, KAILASAM, J.).
[LNIND 1977 SC 214] (paras 92, 105-7, 134-36), per BEG, CJ., CHANDRACHUD, BHAGWATI and GUPTA, JJ. [7-Judge
Bench]; State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312]: (1978) 2 SCR 1 : (1977) 4 SCC 608 [LNIND 1977 SC
312] (paras 141-49, BEG, C.J., 159-65, CHANDRACHUD, J.; 198-203, BHAGWATI, J.: 276, KAILASAM, J.).
Dinesh Mishra
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18 See CONSTITUTIONAL LAW OF INDIA by H.M. SEERVAI, 4th Edn, vol III, pp 2628-34, paras 25.26 to 25.37.
19 State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312]: (1978) 2 SCR 1 : (1977) 4 SCC 608 [LNIND 1977 SC 312]
(paras 141-49, BEG, C.J.; 159-65, CHANDRACHUD, J.; 198-203, BHAGWATI J.; 276, KAILASAM, J.).
20 Chief Conservator of Forests v Collector, (2003) 3 SCC 472 [LNIND 2003 SC 220]; ONGC Ltd v Industrial Development Corp
Maharashtra Ltd, (2007) 7 SCC 39 [LNIND 2007 SC 882].
21 State of Bihar v UOI, AIR 1970 SC 1446 [LNIND 1969 SC 353]: (1970) 2 SCR 522 [LNIND 1969 SC 353] : (1970) 1 SCC 67
[LNIND 1969 SC 353] (para 19). See also Tashi Delek Gaming Solutions Ltd v State of Karnataka, AIR 2006 SC 661 [LNIND
2005 SC 955]: (2006) 1 SCC 442 [LNIND 2005 SC 955].
22 UOI v State of Rajasthan, AIR 1984 SC 1675 [LNIND 1984 SC 243]: (1985) 1 SCR 700 [LNIND 1984 SC 243] : (1984) 4 SCC
238 [LNIND 1984 SC 243] (paras 12-13).
23 UOI v State of Mysore, AIR 1977 SC 127 [LNIND 1976 SC 375]: (1977) 1 SCR 842 [LNIND 1976 SC 375] : (1976) 4 SCC 531
[LNIND 1976 SC 375] (para 6).
24 UOI v State of Rajasthan, AIR 1984 SC 1675 [LNIND 1984 SC 243]: (1985) 1 SCR 700 [LNIND 1984 SC 243] : (1984) 4 SCC
238 [LNIND 1984 SC 243] (paras 12-13); State of WB v UOI, AIR 1963 SC 1241 [LNIND 1962 SC 438]: (1964) 1 SCR 371
[LNIND 1962 SC 438].
25 WAGNER, FEDERAL STATES AND THEIR JUDICIARY, 1959, p 345.
26 It is remarkable that in the pending Cavery Water Dispute between Tamil Nadu and Karnataka, even after the statutory tribunal has
given an interim dispute and is proceeding to its final report, the parties are inviting intervention of the Union Government.
27 State of Bihar v UOI, AIR 1970 SC 1446 [LNIND 1969 SC 353]: (1970) 2 SCR 522 [LNIND 1969 SC 353] : (1970) 1 SCC 67
[LNIND 1969 SC 353] (para 19).
29 State of Karnataka v State of AP, (2000) 9 SCC 572 [LNIND 2000 SC 722]; State of Rajasthan v UOI, (1977) 3 SCC 592 [LNIND
1977 SC 214]; State of Karnataka v UOI, AIR 1978 SC 68 [LNIND 1977 SC 312]: (1977) 4 SCC 608 [LNIND 1977 SC 312].
30 See State of Karnataka v State of AP, AIR 2001 SC 1560 [LNIND 2000 SC 727]: (1999) 4 Scale 332 : (2000) 9 SCC 572 [LNIND
2000 SC 722] : (2000) 6 JT 1 [LNIND 2000 SC 727].
31 See State of AP v State of Karnataka AIR 2001 SC 1560 [LNIND 2000 SC 727](1598) : (2000) 9 SCC 572 [LNIND 2000 SC 722]
: (2000) 6 JT 1 [LNIND 2000 SC 727]. See also H.M. SEERVAI’S “CONSTITUTIONAL LAW OF INDIA.
32 State of Karnataka v State of AP, AIR 2001 SC 1560 [LNIND 2000 SC 727](1598) : (1999) 4 Scale 332 : (2000) 9 SCC 572
[LNIND 2000 SC 722] : (2000) 6 JT 1 [LNIND 2000 SC 727].
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33 State of Rajasthan v UOI, AIR 1977 SC 1361 [LNIND 1977 SC 214]: (1977) 3 SCC 592 [LNIND 1977 SC 214] : (1978) 1 SCR 1
[LNIND 1977 SC 214].
34 Vedire Venketa Reddy v UOI, AIR 2005 AP 157 (158).
36 See Oil and Natural Gas Commission v Collector of Central Excise 1995 (Supp-4) SCC 544; see also Mahanagar Telephone
Nigam Ltd v Chairman, Central Board of Direct Taxes, AIR 2004 SC 2434 [LNIND 2004 SC 652](2435) : (2004) 5 Scale 705
[LNIND 2004 SC 652] : (2004) 4 Supreme 240; C.C.L. v Jessop & Co Ltd, (1999) 9 SCC 181; Central Bank v National Thermal
Power Station, (2000) (Supp-5) SCR 387 : (2001) 1 SCC 43 [LNIND 2000 SC 1760].
37 Mahanagar Telephone Nigam Ltd v Chairman, Central Board of Direct Taxes AIR 2004 SC 2434 [LNIND 2004 SC 652](2435) :
(2004) 5 Scale 705 [LNIND 2004 SC 652] : (2004) 4 Supreme 240.
38 State of WB v UOI, AIR 1963 SC 1241 [LNIND 1962 SC 438]: (1964) 1 SCR 371 [LNIND 1962 SC 438]. O XXXIX of the Su-
preme Court Rules, 1950.
39 Vide C3, vol II, pp 178-9.
40 Cf. State of Seraikella v UOI, (1951) SCR 474 [LNIND 1951 SC 25] (487-8) : AIR 1951 SC 253 [LNIND 1951 SC 25] .
41 Cf. Ramgarh State v Prov. of Bihar, AIR 1949 FC 55 .
42 Vide C 3, vol II, pp 180-1; 619 et seq.
43 See Agreement with Nizam of Hyderabad; Agreement with Maharaja of Mysore; Covenant for formation of Madhya Bharat;
Covenant for formation of Patiala and East Punjab States Union; Ra-jasthan; Saurashtra; Travancore-Cochin; [Appendices LVII,
LVIII, XXXVIII, XXXIX, XLXLI, XXXIV-XX, VI, XLII of the White Paper on Indian States, M.S. 6].
44 State of Bihar v UOI, AIR 1970 SC 1446 [LNIND 1969 SC 353] : (1970) 2 SCR 522 [LNIND 1969 SC 353] : (1970) 1 SCC 67
[LNIND 1969 SC 353] (para 19).
45 Cf. State of Seraikella v UOI, (1951) SCR 474 [LNIND 1951 SC 25] (487-88) : AIR 1951 SC 253 [LNIND 1951 SC 25].
46 State of Orissa v State of AP, (2006) 9 SCC 591.
47 UOI v State of Mysore, AIR 1977 SC 127 [LNIND 1976 SC 375](129) : (1977) 1 SCR 842 [LNIND 1976 SC 375] : (1976) 4 SCC
531 [LNIND 1976 SC 375].
End of Document
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[Art 131A Exclusive jurisdiction of the Supreme Court in regard to questions as to
validity of Central laws. [Inserted by the Constitution (42nd Amendment) Act, 1976 and
omitted by the 43rd Amendment Act, 1977.] [Repealed]

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[Art 131A Exclusive jurisdiction of the Supreme Court in regard to questions as to validity of Central laws. [Inserted by
the Constitution (42nd Amendment) Act,....
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ministerially. 14
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Constitution,
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as judicial.34
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observed:
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State.74
Donaldson MR said:
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law”.
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are not courts.
judicial function.
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invention.95
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function.
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(see below).
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held:
court.
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binding judgment.37
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Constitution.43
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Settlement, 1700.
government.”44
official conduct.
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47-48)
individualism.
said:
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judge.
us........”
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Judiciary.58
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Scheme”.61
the executive”.
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States that a
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enactment.
Constitution.
today.
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otiose”.
unfair.
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agency.
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judiciary.
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129, post.
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independence”.
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favour.
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202(3)(d)]58
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IV. Oath of office
Executive.
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judicial duties.73
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accordingly.
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goes on to say,
existing rule.
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mentality.83
Committed Judges
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before them.”96
Constitution, e.g.;
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and High Courts.—
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U.S.A. (A) U.S.A.—
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permitted by law.
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India (D) India.—
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observed:
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purposes.
fabric.
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Courts.
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Supreme Court.34
India (D) India.—
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certificate.
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in the country.
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Switzerland
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conditions:
Chambers.
constitutionality.
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yet promulgated.
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U.S.A. (A) U.S.A.—
wrote HAMILTON:43
Again,
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Court. For:
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“justiciable’).
States.
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defence.55
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remarks that
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(C) Japan.—
Japan
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a treaty is
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Eire (D) Eire.—
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by Parliament.
As MAY observes:
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Parliament.67
India (G) India.—
not.68
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96,
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impugned Act.85
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Article 245 post).
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by the Legislature.
Federal Court.
Constitution.4
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provision.
also ascertain.
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Sri Lanka.
48[Art 131A Exclusive jurisdiction of the Supreme Court in regard to questions as to

validity of Central laws. [Inserted by the Constitution (42nd Amendment) Act, 1976
and omitted by the 43rd Amendment Act, 1977.] [Repealed]
Exclusive jurisdiction of the Supreme Court in regard to questions as to validity of Central laws.
[Inserted by the Constitution (42nd Amendment) Act, 1976 and omitted by the 43rd Amendment Act,
1977.]

Dinesh Mishra
Page 95 of 114
7 Muskrat v U.S., (1911) 219 US 346 (356).
2003 SC 260] .

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1.015 at p 11.
260] .
[LNIND 1961 SC 206] .
107 : 1958 SCR 1040 [LNIND 1957 SC 134] .
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[LNIND 1977 SC 214] .
SCR 530 [LNIND 1970 SC 40] .
(2006) 2 SCC 1 [LNIND 2006 SC 1219] .
SCR 206 [LNIND 1986 SC 307] .
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40 [LNIND 2001 SC 2120] .
56 State of Rajasthan v UOI, AIR 197

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Date and Time: 24 April 2020 11:09:00 IST

1. [Art 124] Establishment and Constitution of Supreme Court -

Commentary on the Constitution of India

PART V THE UNION (Contd.)

CHAPTER IV THE UNION JUDICIARY

A judicial decision is made according to rules. An administrative decision is taken according to

rather than what it should be.40

In the words of Lord Scarman:

And Woodrow Wilson, later President of USA said:

(See Evans v Grove (supra),).

(vi) A court must be independent of and immune from outside influence.

2 Function of a court in India to ensure social justice

the Constitution” (para. 26).42

The philosophy of socio-economic justice should, therefore, be borne in mind—

(a) While appointing judges.43

3 The principle of independence of the judiciary

on the Supreme Court so as to enable it to exercise its jurisdiction more effectively.

4 Relationship between Supreme Court and the High Courts

I. Immunity from outside influence

Ambedkar in his speech in the Constituent Assembly on 7 June 1949 observed:

II. Security of tenure

III. Conditions of service

IV. Oath of office

V. Judicial decisions binding on the Executive

VI. Power to punish for its own contempt

5 Conditions which do not fetter judicial independence

(a) Articles 124(2) and 217(1) : Appointment by the Executive.

According to RONALD DWORKING79 in his book,

This according to Dworkin puts “judicial restraint” in a stark form.

AHARM BARAK says in his book80 that

Consequently, he goes on to observe,

CRAIG R. DUCAT in his work “CONSTITUTIONAL INTERPRETATION” describes “judicial

It is curious that DESAI, J. in Gupta’s case88 advocated selection according to “constitutional

Article 126: Acting Chief Justice of the Supreme Court.

Article 127: Ad hoc Judges of Supreme Court.

Article 128: Requiring retired Judges to sit in Supreme

Court. Article 223: Acting Chief Justice of High Court.

Article 224: Additional and acting judges of High Court.

Article 224A: Requiring retired Judges to sit in High Court.

fallen from the grace of the Executive, or for inconvenient decisions.1

[Art 1.6] Who can challenge violation of Independence of the Judiciary

POSITION OF THE SUPREME COURT UNDER THE CONSTITUTION

It is acknowledged on all hands that:

U.S.A. (A) U.S.A.—

Australia (B) Australia.—

Canada (C) Canada.—

India (D) India.—

According to learned author M.P. JAIN,23

II. As a Court of Appeal U.S.A (A) U.S.A.—

higher interest are likely to encounter no very warm reception.32

Australia (B) Australia.—

Canada (C) Canada.—

India (D) India.—

III. As Guardian of the Constitution

the weaker or one who is in more need.

The Federal Council ensures observance of the Constitution............

France (B) Fifth French Republic.—

The declaration of unconstitutionality by the Constitutional Council is final. Article 62 says:

A provision declared unconstitutional may not be promulgated or implemented.

the Constitution shall be the supreme law of the land.42

repugnant to or contravenes that fundamental law.

U.S.A. (A) U.S.A.—