Module 3- Judiciary

Establishment and Constitution of Supreme Court

Article 130- Seat of the Supreme Court

Article 130 states that the Supreme Court shall sit and function in Delhi or any such
place as the Chief Justice of India may decide, after acquiring the approval of the
President.

Case Law: Union of India v. S P Anand

No court can give a direction to the Chief Justice or the President to exercise powers
conferred on them under article 130 and thereby appoint any place where the
Supreme Court, within India shall sit.

Article 124- Establishment and Constitution of Supreme Court

Establishment:
1. Under article 124, there shall be a Supreme Court in India consisting of a Chief
Justice and not more than 33 judges, unless the Parliament by the way of a law
prescribes.
2. Every judge of the Supreme Court shall be appointed by the President with a warrant
under his sign and seal. The maximum age of a judge can be upto 65 years to preside
over in the Supreme Court.

Powers of a Judge Appointed in the Supreme Court:

a. may resign his office by writing under his hand, with the application being
addressed to the President;
b. maybe removed from his office, in the manner provided in clause 4 of article 124.

Qualifications:
3. Should be a citizen of India and;
a. been a judge for a minimum of five years in any High Court or two or more High
Courts in succession;
b. been an advocate for at least ten years in an High Court or two or more High
Courts in succession;
c. is a distinguished jurist in the opinion of the President.

Appointment of a Judge by the President shall be done only after consulting the CJI.
Other judges from the Supreme Court and High Court can also be consulted
concerning the appointment of a particular individual.
While the power to appoint a judge is an executive power, yet the determination of
the age of a judge to be appointed is a judicial power- Union of India v. Jyoti
Prakash Mitter
 Under the 15th Constitutional Amendment Act, clause 2A of article 124 was added
providing that the age of a judge of the Supreme Court shall be determined by such
authority and in such manner as the Parliament may by law provide.

Removal of a Judge Present in the Supreme Court: Impeachment Procedure and

Rules.
4. The judge of the Supreme Court shall be removed from his position or office by
passing an order for the same after hearing the address of each House of the
Parliament, supported by a majority membership of that House as well as a minimum
support of 2/3rds majority of members present and voting, who have presented the
grounds of removal proving misbehaviour or incapacity of the Judge to the President.
5. The procedure for presentation of the address by the Houses and the manner of
investigation and proof of misbehaviour or incapacity shall be regulated by any law
passed by the Parliament.

The investigation in this case can begin before the given session in which the
proposal for impeachment or removal is provided or can also be initiated in the
previous Parliament.
Thus the dissolution of the Lok Sabha shall not be an obstacle or problem while
undertaking investigation.

Appointment:
6. Judge required to make and subscribe to an oath or affirmation before the President
according to the form provided under the Third Schedule.
7. The judge or a person holding the office of a judge in the Supreme Court shall not be
required to plead or act in any court or before any authority within the territory of
India.

Case Law: Supreme Court Advocates- On- Record v. Union of India

Held by the court in this case that to ensure that the Supreme Court can cover or or
perform its constitutional obligations properly, it is important to ensure that the ratio
of judges to the quantum of work to be executed is correct.

Case Law: In Re. Presidential Residence

Facts: In the given case, the President of India made a reference to the Supreme
Court concerning the importance of opinion given by the CJI in respect of
appointment of judges in the Supreme Court and the High Court.
Held: The Court, while answering the aforementioned reference stated that the
opinion of the CJI is a reflective opinion of the judiciary and therefore must consist a
plurality of opinions in its formulation. Accordingly, the appointment of judges in
the Supreme Court should be done based on the opinion of a collegium consisting of
the CJI and four senior most judges of the Supreme Court.
The opinions of the collegium shall not hold primacy in the appointment of the High
court judges per se, thereby non-binding in nature but shall be considered immensely
important while appointing judges of the Supreme Court.
Thus the court in this case, exercised its advisory jurisdiction, since it considered it to
be of immense importance and a question necessary to be given answer for.
 Case Law: Supreme Court Advocates On Record Association v. Union of India
The power of appointment of judges of the Supreme Court and High Courts shall be
done by the President on account of the opinion of the CJI which shall be a part of
the consultative process consisting the opinion of two senior most judges of the
Supreme Court to ensure that the opinion is not merely his own but rather a
collective opinion of a body of men at the apex level of the judiciary.

Minimum Judges in the Supreme Court:

Under Article 145(2), the Supreme Court has the power after seeking approval of the
President to make rules concerning the minimum number of judges required to sit for
this purpose are provided powers equal to that of a Single Judge or Division Courts.
Minimum three out of five judges of a Constitutional Bench shall be appointed
mandatorily to form a Bench for a concerned issue or dispute. They shall be
appointed by the Chief Justice.

Interpretation of the Term Consultation:

Case Law: Union of India v. Sankalchand Himatlal Sheth
The Supreme Court in this case clearly held that the term 'consultation' here implies
full and effective consultation based on the three functionaries of the Constitution
such that all three base their opinions on the basis of identical and full facts of the
case.
Consultation therefore does not mean concurrence per se, and therefore the President
is not bound by such consultation either.

Case Law: Special Reference No. 1 of 1998, Re.

The President in this case put forward 9 questions for reference to the Supreme Court
concerning matters related to appointment/transfer of judges to the SC or the HC and
the interpretation of the term 'consultation'.
Accordingly, the Supreme Court in this case held:
1. The expression 'consultation with the Chief Justice of India' provided in articles
217(1) and 222(1) of the Constitution require the combined consultation of a
plurality of judges in the formation of an opinion of the CJI. Thus the sole opinion of
the CJI is not to be constituted as 'consultation' for the purposes the said articles.
2. The CJI is required to make recommendation in light of the consults provided by the
senior most 4 judges of the Supreme Court for the appointment of the judges of
supreme court or transfer of a judge from the High Court to the SC. In case of
appointment to the HC, 2 senior most judges of the Supreme Court should be
consulted.
3. The CJI is not entitled to act solely in his individual capacity as a CJI but rather in
the consultation with the other SC judges with respect to the materials and
information presented to the Government of India concerning appointment and
transfer.
4. The CJI is mandatorily required to be bound by the norms of the consultation process
while advising the government of India.
5. Such recommendation by the CJI which is done without giving due consideration to
the consultation process shall be considered as non-binding upon the government of
India.
 Appointment of Chief Justice of Supreme Court:
While there are provisions and articles laid down for the appointment and procedure
to be followed for the appointment of Supreme Court and High Court judges, nothing
of the same has been provided for the appointment of the CJI of Supreme Court.
Accordingly, the principle of "seniority" is followed when it comes to the
appointment of the CJI, wherein the senior most judge of the SC maybe appointed as
the CJI in consultation and on the recommendations provided by the previous or the
last CJI of the SC.

Salaries of Judges of Supreme Court in India:

Article 125- Salaries, etc. of Judges

Article 125 of the Constitution provides for the salaries and other benefits or rights of
absence and pension to the Supreme Court judges.
1. Judges of the Supreme Court shall receive such salaries which shall be regulated and
decided upon by the Parliament, and while being decided till then be regulated by the
Second Schedule of the Constitution.
2. They shall also be entitled to such benefits and privileges of rights with respect to
their leave of absence and pension which shall also be decided upon by the laws
passed by the Parliament in the same regard and while such laws are being
formulated, be regulated by the Second Schedule.

To regulate the benefits of leave/residence/pension etc., of Supreme Court,

Parliament enacted the Supreme Court Judges (Conditions of Service) Act, 1958.
Moreover, under Article 112 of the Constitution, the salaries, allowances and pension
of the Supreme Court judges are to be charged out of the Consolidated Fund of India.

Case Law: Deoki Nandan Agarwal v. Union of India

Supreme Court in this case held that the salaries, allowances and pension provided to
the Supreme Court judges are taxable incomes even though they are not working
under an employer per se. Since they belong to constitutional functionaries, therefore
their salaries shall be considered as taxable incomes.

Court of Record

Article 129- Supreme Court to be a Court of Record

1. Supreme Court shall be considered as a court of record;

2. It shall have all the powers to punish anyone for contempt of itself.

Court of record implies that the court has the power to keep permanent records of all
its proceedings.
Contempt of court implies undermining the authority or procedure of the Supreme
Court or its judges/management etc.
 Article 129 therefore allows the Supreme Court to not only act as a court of record
but also give it the jurisdiction to punish anyone who contempts it. Accordingly, to
establish such power, the Parliament has enacted the Contempt of Courts Act, 1971.

Case Law- C K Daphtary v. O P Gupta

The court in this case provided the guidelines necessary to be followed in
determining the scope of contempt. The court conclusively provided for 5 major
guidelines-
1. There is no excuse to justify any form of disrespect against any judge, despite in
his/her errors of judgement.
2. There is no evidence to justify any allegation amounting to contempt of the courts or
the judges.
3. The court, on its discretion can follow a summary or any procedure to carry on the
contempt proceedings as it deems fit.
4. The court need not initiate formal proceedings to carry out the contempt proceedings.
5. The contempt proceedings can be initiated by the Supreme Court Bar Association.

Case Law: Delhi Judicial Service Association v. State of Gujarat

The power of initiating contempt proceedings or performing contempt proceedings
against any person is a power not only available to the Supreme Court but extended
to all tribunals or courts subordinate to it.

Case Law: Vinay Chandra Mishra, Re

The court in this case upheld the judgement laid down by the Supreme court in
aforementioned case, and stated that Article 129 vests so much power in the SC since
it’s the highest court in its capacity within the judiciary, acting as a court of record,
and is provided with appellate and superintending powers over the lower courts and
tribunals mentioned or provided for in the Constitution.

Case Law: Arundhati Roy, Re.

The court held in this case that when itself or any other court initiates contempt
proceedings against anyone, it does so not to vindicate or protect the interests,
dignity and honour of the particular judge involved or demeaned but rather to protect
the dignity, honour and respect of the authority of law as a whole and the
administration of justice.

Original Jurisdiction of Supreme Court

Article 131- Original Jurisdiction of the Supreme Court

The Supreme Court, with the exclusion of any other court, have original jurisdiction
in any dispute that arises between:
1. GOI and one or more States;
2. GOI and any State/States on one side with one or more States on the other side;
3. Between two or more States.

The original jurisdiction provided to the Supreme Court under article 131 is 'original'
and 'exclusive' although the term exclusive is not mentioned explicitly. Reason
 being, by virtue of this article, the Supreme Court hears any case of the given
classifications first, or before anyone making it original. Moreover, since no other
courts or tribunals have the right to hear such cases, it thereby makes such power of
the SC exclusive.

The original jurisdiction of the Supreme Court can be invoked only when the dispute
arises on the basis of some question of law or fact and thereby includes the
adjudication of a justiciable right. Thus for such jurisdiction to be invoked in the SC,
two conditions need to be satisfied:
1. the parties provided should fall within the categories mentioned in the article;
2. the nature of dispute being such that it consists the adjudication of a legal
right.

Matters excluded from falling under the exercise of the original jurisdiction of the
Supreme Court:
1. Any disputes arising out of any treaty/agreement/covenant/engagement/sanad or
similar instrument, initiated or entered into before the commencement of the
Constitution and is continuing even after such commencement, explicitly providing
that the jurisdiction of the Supreme court shall not extend to such a dispute.
Exception- such matters can be referred by the President under article 143 or the
advisory jurisdiction of the SC.
2. Any matters related to complaints or disputes concerning the distribution or use of
water or any inter-state rivers or river valleys. The Parliament shall therefore pass
any such laws removing the jurisdiction of the Supreme Court or any other courts
from adjudicating such disputes if raised.
3. Matters referred to the Finance Commission.
4. Adjustment of certain expenses between the Union and the States.
5. Any matters invoking the advisory jurisdiction of the Supreme court under article
143 of the Constitution.

Case Law: State of Haryana v. State of Punjab

The Supreme Court does not hold any original jurisdiction over any dispute arising
between two states concerning the construction of water canals. Thus any matters
concerning the construction/distribution/use of water or water canals or rivers does
not fall within the ambit of the original jurisdiction exercised by the Supreme Court.

Case Law: State of W B v. Union of India

Facts: The Parliament in the given case had administered and passed the Acquisition
and Development Act, 1947 giving the Central government the power to acquire land
and property rights over such lands prevalent in a state.
Issues: Challenging sections 4 and 7 of the Act and considering them to be ultra vires
in nature, issues raised were:
1. Whether the Parliament had the authority to acquire land and other properties vested
with the States?
2. Whether States in India are considered to be sovereign authorities?
Held: The Supreme Court held that the Indian Constitution is not federal entirely,
and limitations are imposed on the state in many aspects, even though there is a
 separation of powers. Thereby, no compensation was given to the State of West
Bengal and the suit was dismissed with costs.

Case Law: State of Karnataka v. Union of India

Facts: The Karnataka Government challenged section 3 of the Commission of
inquiry Act, 1952 which allowed the Central government to constitute a judicial
inquiry against the Ministers of the State including a chief Minister. The government
argued on the basis of the grounds of federalism and the Scheme of the Constitution.
Issues: Whether the State cabinet can be held collectively responsible for the State
legislative assembly.
Held: The Supreme Court did not approve the contentions made by the state and held
that the distinction between the State and the State Government was immaterial in
this context, thus the validity of the Act in question was upheld.

Appellate Jurisdiction of the Supreme Court

Being the highest court of appeal, the Supreme Court holds appellate jurisdiction
over its subordinate courts or tribunals to hear appeals in matters of constitutional,
civil and criminal matters. These appeals are heard by the Supreme Court on
receiving a certificate of the same by the High Court.

Article 134-A

Article 134-A provides the grounds on which the High courts can grant a certificate
for the supreme court to hear appeals. These include:
1. Where the High court, if it deems fit, provides the certificate on its own accord
depending upon the facts of the case.
2. Where the aggrieved party in the case makes an oral appeal immediately after the
court passes a judgement/order or decree.
3. Where the party fails to apply for an oral appeal, a written application later for such
appeal however shall not be allowed or entertained by the High Court. - Keshava
Jamkhandi v. Ramachanda S. Jamkhandi

• In Constitutional Matters-

Article 132- Appellate Jurisdiction of the Supreme Court in Appeals from High
Court in certain cases
1. An appeal can lie to the Supreme Court against any judgement/order/final decree
passed by a High Court, after the High Court has issued a certificate for the same
under article 134-A of the Constitution, provided that the case involves a substantial
question of law of Constitution.
2. The appeal by the aggrieved party shall stand on the ground that the matter at hand
has been wrongly decided.

Conditions of Article 132:

1. An appeal lying before the Supreme court against any judgement, decree or a final
order;
2. It may arise out of civil or criminal proceedings;
3. It should duly acquire a certificate of appeal issued by the High court under section
134-A;
4. There must be a substantial question law duly interpreted by various High Courts,
especially concerning matters of constitutional interpretation.
5. Any appeal that is not consistent or competent to be heard by the Supreme Court
shall not be eligible to invoke the appellate jurisdiction of the Supreme Court even if
its granted a certificate for the same.
6. Only those matters or judgements/decree/order for whom the High Court has passed
a certificate, can be competent to be heard by the Supreme Court and no other.

Case Law: State of J&K v. Thakur Ganga Singh

It was clearly provided in this case that the appellate jurisdiction of the Supreme
Court allows it to preside over and hear appeals in all cases where there is a
substantial question of law concerning the interpretation of law is concerned, no
matter the manner of proceeding it is given rise into. Thus a wide ambit of appellate
powers are provided to the Supreme Court when it comes to constitutional law
appeals.

• In Civil Matters-

Article 133- Appellate Jurisdiction of Supreme Court in Appeals from High Courts
in regard to civil matters

1. Appeal can lie to the Supreme court concerning any judgement/decree or order
passed by any High court in a civil proceeding (on account of receiving a certificate
for the same under article 134-A) on account that the-
a. the case involves a substantial question of law holding general importance and;
b. that in the opinion of the High court concerning the given question, it needs to be
decided upon by the Supreme Court
2. The appeal can also lie before the Supreme Court by the aggrieved party on the
account that the decision given by the High court while interpreting such question of
law and the constitution was wrongly decided.
3. Such an appeal shall not lie against any decree/order/judgement passed by a single
High Court judge.

Conditions to fulfil article 133:

1. There must be a judgement/decree/order passed by any High Court in a civil
proceeding.
2. The certificate of appeal should be provided by the High Court.
3. There should be a substantial question of law and the same should be presided over
by the Supreme Court in the opinion of the High Court.
4. The substantial question should be such that it affects the rights of the parties, and
one which has not been discussed or decided over by the Supreme Court.

• In Criminal Matters
 Article 134- Appellate Jurisdiction of the Supreme Court in regard to criminal
matters

1. An appeal shall lie to the Supreme Court against any judgement/order/decree within
a criminal proceedings from any High court where-
a. the High Court has reversed any order of acquittal on appeal lying to it and
charged the accused with death;
b. withdrawn any case from a court lower or subordinate to itself and thereby
charged the accused person with a punishment of death;
c. where the appeal shall lie subject to the provisions of article 145 of the
Constitution and any other provisions formulated by the High Court; (certificate
of the High Court received under article 134-A)
2. By virtue of any law passed by the Parliament conferring such powers on the
Supreme Court, an appeal shall lie before it in a criminal proceeding depending upon
the limitations and the conditions provided by such law.

While the Parliament has been granted with the power to any pass such law which
will allow the Supreme Court to hear criminal matters on appeal, yet the main intend
of the Constitution is to ensure that usually the High Courts remain as the final courts
of appeal. Only where the High Court believes that grave injustice has been done or
the principles of natural justice shall be violated if such certificate is not granted,
then only in those circumstances will the High Courts be required to grant the
certificate of appeal.

The Supreme Court of India is generally reluctant to hear appeals where the courts
subordinate it to it have provided it with fair and reasonable grounds for providing
their judgement, and if there is no ground on which the reasoning so provided should
be reversed or changed in any manner. Only after the appraisal of the evidence, if it's
identified that there is in fact some form of grave injustice occurred on providing the
given judgement then the duty to reverse such judgement shall fall on the shoulders
of the Supreme Court.

Article 134-A- Certificate for appeal to the Supreme Court

Every High Court, passing any order/decree/judgement in any of the matters referred
to in clause 1 of articles 132/133/134, can grant the certificate of appeal lying before
the Supreme Court:
a. if it deems fit, on its own motion;
b. on the oral pleading of such certificate of appeal by either of the aggrieved
parties immediately after such judgement/decree/order is passed or;
c. on the acquiring such oral request of certificate, grant the same for the matters
referred above, if it deems fit to do so.

Special Leave Petition

Article 136- Special Leave to appeal by the Supreme Court

1. The Supreme Court in its discretion grant a special leave petition for any
judgement/order/decree/sentence passed by any court or tribunal below it, within the
territory of India.
2. Such special leave petition or appeal shall not be applicable for any judgement,
decree or order or sentence passed in any case involving the Armed Forces.

Article 136 confers wide discretionary powers on the Supreme Court by allowing it
to preside over any judgement/order/decree/sentence etc., passed by any court or
tribunal within the territory of India. These powers have no been exhaustively
defined anywhere in the constitution or limited by the constitution in any manner.
The Supreme Court has the power to provide a special leave appeal only in cases
where the question law referred to in the matter, is a question of general public
importance, applicable for all or where the judgement passed was such that it was a
grave shock to the conscience of the court. The court therefore decides such appeals
according to the principles of equity, justice and good conscience.

Case Law: Reena Suresh Alhat v. State of Maharashtra

The court in this case clearly held that while the jurisdiction of the Supreme Court
provided under article 136 is wide and discretionary in nature, yet different factors
while allowing a case under special leave appeal should be taken into consideration
such as the alternative remedies available and the mounting pendency of cases
related with the insignificancy of legal injuries. Thus only the most important cases,
which really do require the attention of the supreme court should be allowed to
appeal through article 136.

Case Law: Pritam Singh v. State

The Supreme court in this case carefully examined the wide discretionary powers
granted to it to provide special leave in different cases and held that since there are
no limitations imposed on the Supreme Court while granting a special leave appeal,
yet it is a power which cannot be used sparingly or exceptionally. Thus, a more
uniform and standard way of deciding Special leave appeals should be utilised.
Only in cases, where it is proven that there exist some special circumstances where
the Supreme Court shall grant special leave to appeal, shall the special leave to
appeal be provided. These exceptional and special circumstances should prove that
grave injustice has been done and therefore special guarantee to a warrant with
review of the decision appealed against is necessary.

Wide jurisdiction of the Supreme Court is therefore exercised with regards to:
1. the courts from which it can receive the appeals i.e. any court or tribunal;
2. the nature of the proceedings;
3. the nature of the decision granted by the courts;
4. allowing the grounds to be raised so as to seek or provide the special grant leave
appeal.

Features of Special Leave Petition

1. The grant of special leave petition is not available to any party to the concerned
matter, but only a discretionary power vested with the Supreme Court itself to
 interfere into a matter suo motu by granting special leave to appeal and invoke the
appellate jurisdiction of the Supreme Court.
2. The jurisdiction exercised is in two stages, grant of the appeal by special leave and
hearing of the appeal by the Supreme Court.
3. Exercisable or can be invoked in matters where serious questions regarding the
interpretation of the Constitution or questions of general importance or questions of
constitutionality of laws or any other important issues which are concerned with
examining the Centre-State relations or gross miscarriage of justice or error in
judgement by the judges or the courts etc., such that no reasonable person would
agree or accept such a decision.

Case Law: Suga Ram v. State of Rajasthan

The jurisdiction of the Supreme Court to grant special leave under article 136 is over
and beyond the appellate powers provided to it under articles 132;133 and 134. The
powers provided under article 136 are plenary powers exercisable beyond the
ordinary law to meet the demand of justice, required in cases with special and
exceptional circumstances.

Special Leave Petition when not maintainable-

Case Law: L Chandra v. Union of India

The Supreme Court in this case held that no appeal shall lie directly in the Supreme
court under article 136 of the Constitution. The aggrieved party shall, if discontent or
not satisfied with the judgement of the tribunal, file an appeal with the respective
High Court under articles 226 and 227 of the Constitution of India, and if still not
satisfied, invoke the jurisdiction of the court under article 136 and thereby appeal to
the Supreme Court.
Thus, the appeals under article 136 shall stand valid and lie only when the rest of the
alternative remedies have been exhausted by the appellant.

Case Law: Raghubir Singh v. Haryana Roadways

The court held in this case that provided where the labour court fails to exercise its
powers and jurisdiction under section 11-A of the Industrial Disputes Act, then there
the Supreme court may intervene in such an instant case, through a special leave
under article 136 of the Constitution.

Review Petition

Article 137- Review of Judgement or Orders by the Supreme Court

Provides Supreme Court the power to review any of its judgements or order
pronounced by it, subject to the provisions provided under article 145 of the
Constitution or any law passed by the Parliament in this regard.

Thus, Article 137 allows the Supreme Court to preside and review its own
judgements, any errors of judgement apparent on the face of the record, discovery of
new and important matters or evidence need to prevent the miscarriage of justice.
 Scope of Review Petition
1. The power of review petition is brought in to find out and correct a "patent error,
visible or apparent on the face of record" and not those mistakes or errors which are
of minor or insignificant importance.
2. Thus to point is not to add new evidences or facts of the case but to rather find out
any mistakes or errors that have resulted in miscarriage of justice.

Filing review petition

1. A review petition, under the Civil Procedure Code and the Supreme Court rules can
be filed by any person aggrieved by a ruling, seeking a review of the same. Thus the
review petition can be sought not only by the parties of the matter but anyone,
aggrieved from the same.
2. The petition shall be filed within 30 days of the judgement or order. The petition may
be filed, if an extension or delay in filing the same is approved by the Supreme
Court. Provided the same has been reasonably justified by the petitioner.

Grounds for considering review petition

1. Not every review petition can be entertained by the court. Only those petitions,
where the Supreme Court feels that a review is necessary or where the grounds for
review are satisfied, will the review petition be admitted under article 137.
2. The grounds for review include:
• Discovery of new and important evidence which, even after the exercise of due
diligence could not have been proved or presented before the court or was beyond
the knowledge of the petitioner;
• Mistakes or errors apparent on the face of the record;
• Any other grounds, apart from the ones mentioned above, which justify such review
in the opinion of the court.

Procedure followed during review of petition

1. Review petitions are generally entertained without oral deliberations or arguments
presented by the lawyers. The petition is generally provided and presided over by the
same bench of judges, who pronounced the original judgement or order, through the
way of circulation in their respective chambers;
2. In exceptional cases, where review petitions have been filed against death penalty
awarded by the court, there the case shall be presided over by a bench of three
judges, allowing oral arguments to be presented by the lawyers.

Option where review petition fails

1. The Supreme court devised the instrument of 'curative petitions' wherein the same
can be filed, in case a review petition fails. Roopa Hurra v. Ashok Hurra
2. Generally curative petitions are not filed, since on account of the review petition, the
Supreme Court shall prevent and take any steps to prevent the miscarriage of justice,
however if filed, curative petitions are also filed and looked over similarly to review
petitions, but no oral pleadings are allowed, in any case irrespective.

Case Law: Roopa Hurra v. Ashok Hurra

Issue: Whether an aggrieved person is entitled to any relief against the final
judgement or order passed by the Supreme Court while dismissing a review petition?
 Held: It was held by the court in this case that to prevent the abuse of power and cure
the gross miscarriage of judgement, the Supreme court may reconsider its judgement
while exercising its inherent powers laid down or provided under article 137, by the
way of a curative petition.

Case Law: Keshav Mills Co. Ltd. v. CIT

The Supreme Court in this case held, that in a proper case, the Supreme Court holds
the inherent power to go ahead and review its own judgement, provided it satisfies
either of the conditions provided for in article 137 of the Constitution.

Case Law: All India Judges Association v. Union of India

The Supreme court held in this case that it is not necessary that every review petition
be accepted and changed. Review petitions are equally qualified to be dismissed.

Case Law: Lily Thomas v. Union of India

The Supreme Court held in this case that the power of review can be exercised for
correction of a mistake but not to substitute a view. A review petition is simply to
review a judgement, to prevent miscarriage of judgement on the grounds if there is
new evidence to be taken into consideration which might change the course of such
justice or if there is some error or wrong apparent on the face of the record. Review
petition therefore does not involve rehearing the entire appeal from scratch.

Case Law: Surendra Koli v. State U P

The Supreme court held in this case that the scope of a review petition is quite
small/narrow and therefore cannot be equated to an appeal. The court is simply
granted with the power to change or review the judgement given by it provided that
if the same is not done, it may lead to a gross miscarriage of justice and therefore be
done only on grounds of any mistake or error apparent on the face of record or in
case of any new material evidence to be put into consideration.

Advisory Jurisdiction

Article 143- Power of President to Consult the Supreme Court

1. If at any time the President feels that there is some question of fact or law that has
arisen or likely to arise, such that it is expedient to acquire the opinion of the
Supreme Court on the given matter, then the same can be put forward to the Supreme
Court by the President, and if the Supreme court, if it thinks fit, shall provide it
opinion over the same.
2. The type of question put forward by the President under article 143 to the Supreme
Court shall may be provided in the proviso mentioned in article 131 of the
Constitution.

This power granted to the President under article 143 of the Constitution is referred
to as the advisory power or consultative power of the President, exercised by him in
his capacity as the Executive head of the Union. The questions referred by the
President may be related to such matters which maybe of public importance or of
such nature where it becomes expedient to acquire the position and views of the
Supreme Court.

As the provision provides, only if the Supreme Court deems or thinks fit to answer a
question referred by the President to it, shall it provides its opinion on the same.
Moreover, such opinion of the Supreme Court is not binding upon the President and
up to his discretion whether he would like to undertake the same or not.

Case Law: Delhi Laws Act, 1912, Re.

In the given case, the Supreme Court was invited to give its opinion on the question
concerning the permissible limit or powers that cannot be delegated beyond a certain
limit. The court in this case held that the limit is that of essential powers of the
legislation. The essential powers or essential ingredients required for a legislation
cannot be delegated.

Case Law: Special Courts Bills, 1978, Re.

The issue in this case was considering the Special Courts Bills passed in 1978. The
Supreme Court held in this case, that it is upon the discretion of the Supreme Court
to provide or answer any reference of question of law or fact put forward to it by the
President. Where the Supreme court feels that it is not proper or not possible to
provide answers to a referred question, the same can be validly returned back to the
President unanswered by the Supreme Court, provided the same is done for valid
reasons.

Case Law: In Re. Presidential Reference

Facts: In the given case, the President of India made a reference to the Supreme
Court concerning the importance of opinion given by the CJI in respect of
appointment of judges in the Supreme Court and the High Court.
Held: The Court, while answering the aforementioned reference stated that the
opinion of the CJI is a reflective opinion of the judiciary and therefore must consist a
plurality of opinions in its formulation. Accordingly, the appointment of judges in
the Supreme Court should be done based on the opinion of a collegium consisting of
the CJI and four senior most judges of the Supreme Court.
The opinions of the collegium shall not hold primacy in the appointment of the High
court judges per se, thereby non-binding in nature but shall be considered immensely
important while appointing judges of the Supreme Court.
Thus the court in this case, exercised its advisory jurisdiction, since it considered it to
be of immense importance and a question necessary to be given answer for.

Case Law: Cauvery Dispute Tribunal Case

Facts: In the given case, a tribunal was set up by the Central government, to look into
the dispute regarding the Cauvery river water distribution that flows between the
State of Karnataka and Tamil Nadu. The concerned tribunal passed an order to the
Karnataka State government to allow and release a certain amount of water to the
state of Tamil Nadu. The Karnataka State government in response to the order of the
tribunal, passed an ordinance which empowered it to not implement the order passed
by the Tribunal.
 The same was referred as a question to the Supreme Court by the President under
article 143 of the Constitution, invoking its advisory jurisdiction.
Held: The Supreme Court in the given case held that the ordinance passed by the
Karnataka State government against the decision of the tribunal is unconstitutional in
nature and thereby violates the State Water Disputes Act of 1956. Moreover, the
actions of the Karnataka State government were also against the principles of the
natural justice, since the government of Karnataka became a judge in their own cause
and passed the ordinance as a judgement on its own discretion.

Article 141- Law Declared by the Supreme Court to be binding on all courts

The Supreme Court and any law declared through it, shall be considered binding on
all courts within India. Thus, where the Parliament is the authority responsible to
create the law, the Supreme Court shall be considered as the final interpreter of such
law and such interpretation shall thereby stand binding on all the courts and tribunals
subordinate to it.

Independence of Judiciary/ Role of Judiciary

The independence of Judiciary is an important aspect of any democracy and the same
has been presided over by the Constitution through its provisions and guarantees
provided under the different articles.
These include:
1. The judges of the Supreme court and the High Court have the power of security of
tenure and therefore cannot be removed from their office on their own.
2. While the Parliament has the power to decide the allowances, pension and other
benefits available to judges of the Supreme and High Court, these cannot be varied
during the tenure of the judges to their disadvantage. Once fixed, these remain fixed
throughout.
3. No judge can be removed from their position by the President unless grounds for the
same are provided to him through a presentation of address by each of the House of
the Parliament, given the grounds are valid and reasonable and the judge is provided
the chance to explain himself.
4. The independence of the judiciary is further protected by according the higher or
superior courts as the court of record.
5. The judges of the Supreme Court or the High court cannot be appointed by the
President of India without acquiring a consultation from the CJI and the respective
collegium of judges as provided in the Presidential Reference case.
6. The members of the subordinate judiciary are also protected under the provisions of
the Judicial Officers Protection Act, 1850.

State Judiciary or the High Courts

Article 214- High Courts for States

The Constitution provides for the establishment of High Courts in the each state
within the territory of India.
 Article 231- Establishment of Common High Court fot Two or More States

1. Parliament by the way of a law, may establish a common High court for two or more
States or one or more States and a Union territory.
2. Where such a common High court has been established:
• in case where the reference has been made under article 227, to the Governor
concerning any rules or regulations or law or forms etc., there the Governor where
the subordinate court is present, shall be responsible to answer the reference;
• in case where the reference has been made under articles 219 and 229 to the State
then there the reference shall be construed as one made to the High court of the State
in which the principle seat of the High court is situated.
• where the reference or the principle seat of the High court is the Union territory, then
the reference shall be made to the President/Union Public Service Commission etc.

Article 230- Extension of Jurisdiction of the High Courts to Union Territories

1. Parliament through the way of passing a law may extend the power or the
jurisdiction of a High Court or exclude the jurisdiction of a High Court from any
Union territory.
2. The reference made to the Governor in article 227, in case where the jurisdiction of
the High Court is increased, then the same shall lie before the President and not the
Governor of the concerned state.

Articles 230 and 231 therefore provide Parliament the power to extend or abolish or
restrict the State jurisdiction of any High court exercised by it in a union territory. It
can also allow the High court of a particular state to possess jurisdiction over any
particular state.

Constitution of High Court-

Article 216- Constitution of High Courts

Every High court shall consist of a Chief Justice and such other judges as the
President from time to time appoint.

Case Law- S P Gupta v. Union of India (First Judges case)

The Supreme court in this case held that it is the constitutional obligation of the
President to take into consideration the strength of each High court depending upon
the pendency of cases. Moreover, the strength of the judges of such High courts, by
the was of a periodical review should also be undertaken by the Chief Justice of India
and the Chief justice of the High courts and accordingly recommendations for
appointments should be made to the President from time to time.

Appointment, Removal and Qualifications of a Judge of High Court-

Article 217- Appointment and Conditions of the Office of a Judge of High Court
 Appointment-
Article 217(1) provides for the appointment of a High court judge:
Every judge of the High court shall be appointed by the President by the way of a
warrant signed under his hand and seal and shall hold office, in case of an additional
or acting judge, as provided for under article 214, till he attains the age of 62.

Removal of a High court judge:

• Either by the way of a resignation put forward by the High court judge to the
President by writing under his hand;
• By way of removal by the President in a manner provided in clause 4 of article 124,
same as that provided for a Supreme Court judge;
• In case of vacancy of office, on account of transfer to the Supreme court or any High
court within a different state in the Indian territory.

Qualifications-
Article 217(2) provides the qualifications for the appointment of any person as a
judge of the High court:
• Citizen of India;
• Has held a judicial office for a period of not less than ten years;
• Has been an advocate of any High court or two or more High courts for a period of
ten years or more.

Article 217(3) states that where any question arises concerning the age of a High
court judge, the same shall be decided over by the President in consultation with the
Chief Justice of India and the Chief justice of the respective High court.

The mode or preference provided under article 217 considering the appointment,
removal or qualification, shall be applicable for both ordinary High court judges as
well as the those appointed as additional judges.

Case Law: S P Gupta v. Union of India

The Supreme Court in this case held that for the appointment of the High court
judges, the President shall consult with three constitutional functionaries in order to
constitute as a full and effective consultation. These include the CJI, the Chief Justice
of the Concerned High court and the Governor of the concerned state in which the
appointment is to be made.

Case Law: Special Reference No.1, 1998, Re.

The court in the given case held that the process of judicial review can be initiated in
case of appointment of judges of the Supreme court or the High court, if they are not
done according the constitutional requirements i.e. after acquiring the opinion of not
only the CJI and the Chief Justice (in case of the High court) but also the senior most
judges of the given court.
The tool of judicial review is also available where the CJI or Chief Justice has not
complied with the constitutional requirements provided in the concerned articles, and
thereby forwarded their recommendations without the consultations of the senior
most judges of the Supreme or High court. This tool is also available wherein the
 appointed judge or recommendation lacks eligibility or does not satisfy the
qualifying requirements needed by law.

Salaries and other benefits provided to High court judges

Article 221- Salaries Etc. of Judges

1. The Judges of any High court shall be provided with salaries as fixated by any law
passed by the Parliament, and till the time such law comes into effect, the same shall
be governed by the rules provided under the Second schedule;
2. The judges of any High court shall also be entitled to other benefits such as that of
pension, leave of absence etc., regulated by any law passed by the Parliament in this
regard and where the same is not provided yet, be regulated with such regulations as
provided under the Second schedule.

The salaries and benefits provided to High court judges are taxable incomes, like that
of any other citizen in India.

Case Law: Union of India v. S S Sandhawalia

The High Court Judges (Conditions and Services) Act, 1954 provides or regulates the
matters of salaries and other benefits provided to the High court judges within the
territory of India.

Transfer of High Court judge-

Article 222- Transfer of a Judge from one High Court to Another

1. The President may, on the recommendation of the Chief Justice of India, transfer a
judge from one High court to another, within the territory of India.
2. On account of such transfer, the High court judge along with his salaries and
benefits, shall also be entitled to a certain amount of compensatory allowance which
maybe determined by law, but till the time such law comes into force, shall be
according to the amount fixed by the Parliament for the time being.

Case Law: First Judges Case

The court in this case by a majority opinion held that the consent of a judge for their
transfer shall not be considered as a precondition. The reason being that such transfer
shall be done in public interest and therefore personal inconvenience of the judge
shall not be considered during such transfer.

Court of record-

Article 215- High Courts to be Courts of Record

Every High Court has the power to be considered as a court of record and also have
the power to punish anyone for contempt of itself.
Court of record similar to the power granted to the Supreme court i.e. the court can
keep a record of all of its proceedings.
 Case Law: R L Kapur v. State of Madras
The court held in this case that the High court, owing its power as a court of record
under article 215 of the Constitution, also has the implied the power to suo motu
initiate contempt proceedings of itself against any person.

Writ Jurisdiction and Types of Writs

The Supreme Court has the power, under article 32 of the Constitution to enforce
fundamental rights of any person within the State by issuing the directions or orders
or writs. These writs include the writ of habeas corpus; mandamus; prohibition; quo
warranto and certiorari.

Article 32- Remedies for enforcement of fundamental rights conferred by this apart

1. Every citizen has the right to move to the Supreme court, under article 32 to move to
the Supreme court for the enforcement of their fundamental rights guaranteed to
them under Part 3 of the Constitution.
2. The Supreme Court has the power to issue directions/orders/writs including the writs
of mandamus, habeas corpus, quo warranto, prohibition and certiorari.
3. The Parliament, by law may enforce any courts lower or subordinate to the Supreme
Court to issue any such directions/orders/writs or powers provided to the Supreme
Court under this article, within the local limits of its jurisdiction.
4. Only where the Constitution has mandatorily provided for the suspension of these
articles, will the same be suspended, not in any other situation.

Meaning of writs-
A writ is a written official order issued by the court in extraordinary circumstances
where the fundamental rights of any citizen or class or group of citizens have been
violated in any manner. The main purpose of writs is to enforce such fundamental
rights against the State and thereby allow the aggrieved person to seek an
extraordinary remedy. Such remedy usually lies against the administrative action.

Writ of Habeas Corpus

1. The writ of habeas corpus allows a citizen to hold or bring action against any person
or the State who has illegally detained such a person. The aggrieved person can
therefore bring a legal action against such illegal detention, performed either by
another person or the State.
2. Accordingly, the writ provides the free, fast and powerful remedy to any ordinary
citizen who has been wrongfully and illegally detained by any person or the State.

Case Law: A D M Jabalpur v. Shivkant Shukla

Justice Khanna in this landmark case explained the writ of habeas corpus and thereby
explained that this writ is a process of securing liberty for any individual who has
been wrongfully detained, either in private custody of any particular individual or in
prison through a police arrest.
 Once bought before the court, if it is found that there are no legal reasons or there is
no legal jurisdiction for such private detention or arrest, then the aggrieved person is
released from such custody and maybe compensated in a manner that the court
deems fit.

Case Law: D K Basu v. State of W B

Justice Thakur in this case laid down 11 basic guidelines in respect of petition falling
under the writ of habeas corpus. The court held that these 11 guidelines are required
to ensure that the person who has been detained or arrested should be produced
before the magistrate within 24 hours of such detention or arrest. Moreover, where
the guidelines concerning such arrest or detention are not followed, then the person
so detained shall be released on the same day of such detention.
The writ of habeas corpus can only be issued at the time when there is an illegal or
wrongful detention or arrest of an individual. Thus when a petition invoking the writ
of habeas corpus is issued, the court is required to ask the question whether the arrest
or the detention was done unlawfully or lawfully. Where it is proven that it was done
lawfully, then the petition shall not stay valid and be dismissed, however where
proven it was done illegally or unlawfully, then the petition shall stay valid and
according to the merits of the case, the detainee maybe released.

The guidelines include:

1. The police authorities or personnel making the arrest or detention shall wear handle
the interrogation wearing clear and precise identifications and identification labels
along with their respective designations. The same shall be duly recorded within a
register.
2. The police officers handling the interrogation shall formulate a memorandum
providing clear information concerning the arrest and interrogation and the same
shall be witnessed by a witness who may either be a family member or any person
from the locality where the arrest has been made. The same shall also be signed by
the detainee and shall contain the date and time of arrest.
3. The detainee, being arrested or detained at any police station or detention centre shall
have the right to have a friend or person related to him, concerned with his well-
being, to know as soon as possible that he or she has been detained or in police
custody.
4. The police shall notify the name of the detainee, time and place of detention, the
place of custody of the detention to the concerned police station, in case where the
relative or the next of kin of the detainee is located somewhere outside the district or
city where he has been detained, within 8-12 hours.
5. The right of the detainee to have someone related to him or her or his or her friend
etc., shall be clearly told or communicated to the detainee at the time of his arrest.
6. The copies of all documents, including the arrest memo, must be sent to the
Magistrate for registration. Moreover, the detainee must be produced before the
magistrate within 24 hours of his arrest.
7. The detainee must be allowed to meet his advocate or assigned attorney during the
time of the interrogation. Moreover, where a person does not have the financial
capacity to provide for an attorney, the same shall be provided to him by the State
itself.
 Case Law: A K Gopalan v. State of Madras
Facts: The petition invoking the writ of habeas corpus was filed under article 32 of
the Constitution concerning the detention of the petitioner in the Madras jail,
providing the dates since his arrest from December, 1947 under the ordinary criminal
law.
The detention of the petitioner lied under the provisions of the Preventive Detention
Act, 1950.
Issues: The petitioner challenged the legality of the Act and construed it to be
violative of the provisions provided under articles 13,19, 21 and 22 of the
Constitution. The petitioner argued that the provisions of the said Act are ultra vires
and thereby challenged the order passed by the court concerning his arrest to be mala
fide.
Held: It was held by the court:
1. That it shall not deal with the issue of the order being passed as mala fide till the time
it is proven by the petitioner that the order passed by the concerned authorities was in
fact mala fide in nature and thereby had the ill-intention to violate his fundamental
rights.
2. As far as the provisions of the Preventive Detention Act are concerned, while they
are rigid and harsh in nature, they nowhere violated the fundamental rights provided
to the citizens under Part 3 of the Constitution. Thus the provisions of the Preventive
Detention Act cannot be considered as violative or ultra vires of the Constitution.
3. It was also held that the writ of habeas corpus cannot be filed against the detention or
imprisonment of an individual being carried out in lieu of a sentence passed by the
court under a criminal trial or criminal charge. Thus no petition concerning the
wrongfulness of an arrest can lie in the court where the same is being carried in the
execution of an order of sentence being passed by the court.

Writ of Mandamus

1. The writ of mandamus was a command that was established during the Crown's reign
wherein it was imposed by the Court of King's bench on any subordinate or lower
court/tribunal/authority or person to perform a duty imposed on them by the law.
2. The writ of mandamus is therefore a command enunciated by the Supreme Court or
High court over any lower or subordinate courts/tribunal/public authorities to
perform any functions or obligations imposed on them by the law.
3. The issuance of a writ of mandamus comes into picture when a person or individual
demand relief for a specific issue and the same is denied or not provided by the
concerned authority, thereby invoking the jurisdiction of the court.
4. The court issuing the writ of mandamus is not considered as a court of appeal and is
therefore not required to look into the correctness of the facts or applied law or the
merits of the case that appear before it. The role of the court is to ensure that the
obligation is imposed on the concerned authority to perform or provide relief to
person or party who asks for it.

Case Law: State of Mysore v. K N Chandrashekara

The court in this case invoked the writ of mandamus on the Public Service
Commission under Rule 9(2) of the Rules for Appointment to the Cadre of Munsiffs,
 thereby obligating them to add names of 6 more candidates apart from the list of 10
candidates which was already provided for.
The writ was issued by the High court since it believed that while the list with 10
candidates fit for promotion cannot be disturbed, yet the name of 6 candidates
provided by it had to be mentioned or added in the list as well and thereby making
the appointments from the new list.

The writ of mandamus can be invoked only when a fundamental or legal right
guaranteed to the citizens under the Constitution has been violated. The writ is issued
by the courts when any subordinate or lower public or judicial authority or
authorities violate any legal rights of the citizens by abstaining from performing the
duties that they are legally obliged to do the under the law.

Case Law: Narinder Chand Hem Raj v. Lt. Governor of HP

Facts: The appellant in the given case were wine merchants who were the highest
bidders in an auction held for Indian made foreign wine and beer at the Mall of
Shimla. According to the appellants, at the time of the auction, the Deputy
Commissioner, who was also the Collector of Excise and Taxation, announced that
the sales tax levied on liquor at the time of the sale shall not be levied. Yet when the
sale was made, the same was levied on the appellants by the government. The
appellants thus filed a petition invoking the writ of mandamus and thereby sought
specific reliefs in this regard.
Held: The court in the given case held that the writ of mandamus cannot be issued or
invoked in this given case, since nowhere does the commissioner's words provide an
assurance on the part of the government for not levying the tax. The commissioner
simply put forward the law wrongly, and since the State government had no right to
change the law on its own without getting the approval of the same, therefore the
writ of mandamus would not stand valid.

The court provided the grounds where the writ of mandamus cannot hold or stand:
1. Cannot lie against an inferior or ministerial officer who tries to obey the order of his
superior according to the law;
2. Cannot lie against any inferior of ministerial officer who is simply bound to perform
duties obligated or imposed upon him by the authorities he is working under or
bound by the rules of;
3. Cannot lie against any private individual or company.

Writ of Prohibition

1. The writ of prohibition is an extraordinary writ which prevents any subordinate

court/tribunal/judicial or quasi-judicial body or authority to adjudicate any matter
which is beyond their jurisdiction or exercising such powers which are not provided
to them or not vested on them.
2. This writ is thus invoked on such judicial bodies or authorities thereby preventing or
barring them from doing something they are about to do which is beyond their
jurisdiction or powers granted to them by the constitution.

Grounds for issuing the writ of prohibition:

1. Absence or excess of jurisdiction;
2. Violation of principles of natural justice;
3. Violation of fundamental rights guaranteed to citizens;
4. Unconstitutionality of Statutes;
5. Any error of law apparent on the face of the record.

Case Law: S Govinda Menon v. Union of India

The court in this case provided the grounds or basis on which a court can be allowed
to issue the writ of prohibition. It was held that the writ of prohibition issued by a
court is supervisory in nature and therefore mainly aims at restricting or ensuring that
the courts do not exceed their respective jurisdictions. Moreover, prohibition can also
be issued when the court believes that the authority, whether judicial or quasi-judicial
has violated the principles of natural justice and the subject matter in concern
consists a substantial question of law.

Case Law: Bengal Immunity Co. v. State of Bihar

The Supreme court in this case held that the writ of prohibition is not a discretionary
power or writ that can be issued whenever the court feels so. The nature of writ of
prohibition is of correctiveness rather than preventiveness. Thus in the instant case,
where it is presumed that there exists simultaneous equal and effective alternative
remedy, then the same can be observed by and shall be taken into consideration by
the High court.

Writ of Certiorari

1. The writ of certiorari basically means 'to certify'. The writ of certiorari is issued by
the higher courts over the inferior or subordinate courts to perform the duties
imposed on them under the law, which maybe judicial or quasi-judicial in nature.
2. The writ of certiorari allows the higher courts to keep a check on the functions
performed by the lower or inferior courts or judicial bodies, thereby keeping them in
check and ensuring that they do not exercise powers beyond their jurisdictions.
3. The writ of certiorari shall be issued by the SC or HC to quash any orders or
obligations imposed by such inferior or subordinate courts which maybe issued,
beyond the exercise of their jurisdiction.
4. Components of the writ of certiorari:
• Body of persons;
• Such body consisting of some legal authority;
• Such authority consisting of some legal duty imposed on them, thereby affecting
the rights of subjects;
• Such duty shall be a judicial duty to be performed.
5. Parties against which the writ of certiorari cannot be issued:
• an individual;
• a company;
• any tribunal or public authority not having the powers to perform any task or
obligations in a judicial or quasi-judicial manner;
• private authority;
• against any declaration made to constitute a statute as ultra vires or
unconstitutional.
 Case Law: Express Newspaper Ltd. v. Workers
The issue in this case was whether the industrial tribunal under the Industrial
Disputes Act, has the jurisdiction to try any non-industrial dispute or not and whether
it can suo moto try such a dispute. The court in this case held that the High Court or
the Supreme Court has the jurisdiction to issue the writ of certiorari against the
industrial tribunal in an instant where it tries to resolve any dispute which is beyond
its jurisdiction and does not fall under the category of an industrial dispute.

Case Law: Gullapalli Nageshwara Rao v. APSRTC

The Supreme court in this case provided or laid down the importance of the
principles of natural justice which clearly states that in a matter produced before the
court, both parties should be provided with the fair chance of being heard and
represented. Moreover, apart from this principle, where the Parliament in any law has
clearly expressed that the parties to a dispute shall have the right to a personal
hearing, then there lies an obligation on the court to hear the same in the form of a
personal hearing. In the given case, where the Home secretary in charge of transport
heard the objections and the Chief Minister decided over them, the principles of
natural justice were violated, since they became a judge in their own cause.
Accordingly, the acceptance of the proposal in the given case by the State
government does not stand valid and hence shall be quashed by an order of the
Supreme Court.

Difference between the writs of Certiorari and Prohibition

1. The writs of certiorari and prohibition are used or applied at different times or stages
of a proceeding. In the case where an inferior or subordinate court or tribunal has
acted out or beyond its jurisdiction, then the person against whom the proceedings
have been initiated can go file a suit invoking the writ of prohibition. However, in the
case where the court has already heard and disposed the matter, thereby giving
decision in such regards, then the aggrieved can move to the Supreme Court thereby
pleading for such a decision to be quashed.
2. In certain cases, where an inferior court has passed an interim order or certain orders,
thereby providing relied only for certain matters of the case, however beyond its
jurisdiction, then in such instances both the writs may have to be applied. Thus in
such a case, the orders passed shall be quashed and the same shall be passed to a
court holding the appropriate jurisdiction, moreover, the writs shall also bar the
inferior or subordinate court from passing any other judgements concerning the
issues that may remain.

Writ of Qua Warranto

1. The main purpose of quo warranto is to prevent any person from holding any office
illegally or wrongfully and continuing to do so. The writ of quo warranto allows the
court to decide as to by what authority is such person holding the particular office.
2. This writ can be issued only against any person wrongfully holding a public office,
and for the writ to be invoked, the same has to be proved or established first in the
court of law.
3. The person holding such office shall also prove that the office in question was not
presided over by any legal authority. Therefore, this will allow to identify whether
office claimed was usurped of legal authority and taken over wrongfully or not.

Case Law: University of Mysore v. C D Govinda Gowda

The Supreme Court in this case held that the writ of quo warranto is a weapon
provided to the judiciary to prevent the executive from making an appointments to
the public offices on its own accord. The writ of quo warranto allows the judiciary to
prevent and protect as well as enforce the right of the public to be appointed to such
public offices, without any bias and without being deprived of such basic rights.

Case Law: Shyam Sunder v. State of Punjab

Facts: A petition invoking the writ of quo warranto was filed in this case, invoking
an inquiry into the appointment of elected members of the municipality into public
offices.
Upon inquiry it was held that about 10 elected members of the municipality were
appointed wronfully and thus their seats were consequently declared vacant.
Held: The court held in this case that the writ of quo warranto is a continuing
petition, since it continues till the time the person is holding the seat or office
unconstitutionally or wrongfully. The petition of quo warranto is of a discretionary
nature allowing the court the discretion or choice to issue or not issue the same. This
implies, that even in cases where the person is holding an office wrongfully, but
performing his duties properly, then in such a case where the SC or HC issue this
writ to remove the person from such position, thus causing annoyance, then there the
courts can decide to not issue the order of quo warranto.
Moreover, the nature of office held by the person shall be of a substantive character
and should not be of a private but of public nature, open for all.