The

Supreme Court

Of India

[Practice &

Procedure]

THEN & NOW

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S.R. PANDA ICJ, LONDON(UK)© All Rights Reserved/For Private circulation only

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CONTENTSEstablishment of Humble Supreme Court of India

at New Delhi

Jurisdiction

Public Interest Litigation (PIL)

Letter Petitions (LP)

Caveats

Limitation and Court Fee(s)

Allocation, Listing of cases, cause list & other informations

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Establishment of Humble Supreme

CourtThe Humble Supreme court of India, as it is presently located at Tilak Marg, New Delhi in the National capital of India, has a long history of its back since more than 50 years. During the British regime of ancient India, the King in council...l (or, the privy council, as it was generally called and popularly known), was the highest forum to entertain appeals from the judgments and orders passed by various other courts of law in India .On enactment of judicial committee Act 1833, it come to be called the judicial committee of Privy Council. The decisions of the judicial committee used to be couched in advisory form, though in practice, the crown always accepted its advice and it was unthinkable that its report will not be given effect to.

It was felt that appeal to the privy council was very costly and beyond the means of common man and it was also felt that it detracted the self respect of the Indian people. Hence, there was a rising demand for establishment of Humble Supreme court of India. Thereafter the Govt. of India Act 1935 introduced a federal constitution of India involving distribution of powers between centre and the constitutional units. The Federal court of India began functioning with effect from 1st October 1937.The appellate jurisdiction of the Federal court was enlarged by enactment of Act No.1 of 1948.Just after the independence in August 15 1947 and with effect from,10th October 1949,appeals to the privy council were abolished all together and entire appellate jurisdiction was vested in the federal court .On 26th January 1950, the federal court gave way to the Humble Supreme court of India under the New Constitution.The supreme court of India was formally inaugurated on 28th January 1950 by then, the first Attorney General For India. The Court initially functioned in the chamber of princes (a part of the present parliament house), where federal court used to sit from 1937 to 1950.It shifted to its own building at Tilak Marg and started functioning there on 4th August 1958

Jurisdiction of Hon’ble Supreme Court There are three pillars of constitution namely-

(1) Judiciary

(2) The comptroller & Auditor general of India (CAG)

(3) The Public service commissions most importantly, the constitution provides for a separation of Judiciary from the executive at all levels throughout the country.

This is because , most probably, the framers of constitution lead by then famous lawyers of constituent assembly like Dr. B.R. Ambedkar had thought to maintain to independence of judiciary not only in the interest of people of India but also in the service of Human Society. It’s no doubt,, in a Federal state like India, it is essential to have independent judiciary for preserving the sanctity of the constitution on the one hand and or the other, interpreting the constitution in the interest of public, at large. This was(and even now is) necessarily for

For (a) maintaining the division of powers between union govt. /central govt. & state govt. & also between the subordinate branches of the govt.

And (b) avoiding encroachment upon each other’s powers & sphere of activity by nullifying any action on the part of the union govt. /state govt. or, their different organs which violate the provisions of the constitution.

and hence, the “Idea" of a people’s court the honourable supreme court of India as the Apex temple of Law (Ref. Satyamev Jayete…”bhagwat Gita”) to safe guard the above said distribution of powers and to nullify any action which violates any of the constitutional provisions in the

(I) “Equality before law” & “Equal Protection of the laws

All persons are equal before law-is the basis of every civilised

constitution. But Article 14 to 18 of the constitution defines

the “RIGHT TO EQUALITY” something more interesting viz:-

Art 14 : The state shall not deny to any person equality before law or, the equal protection of the laws within the territory of India.

Art 15 : It provides for prohibition of discrimination on ground of religion, race, caste sex or, place of birth.

Art 16 : It provides for equality of opportunity in the matters of public employment.

Art 17 : It provides for Abolition of untouchability.

Art 18 : It provides for Abolition of titles.

To sum up both the expressions- “equality before law”

and

“equal protection of the Laws" under Art.14 mean

different

things. “Equality before law”- is a negative concept,

derived

from the English concept, derived from the English

common

law while “equal protection of the laws” is a positive

concept and it implied equality of treatment in equal

circumstances.

In other words, it means- “that among equals the law

should be treated equal & equally administered, that

like

should be treated alike……” & among unequals SAME

LAWS should NOT be applicable. In the opinion

Hon’ble

In the case of Indra Sawhney vs. union of India (more

popularly known as Mandal commission Case) it has settled

the position that Art.16(4) is NOT AN EXCEPTION of

Art.16 (1) or (2), rather it is an emphatic application of

Art.16(1).The Hon’ble Supreme Court of India further held that-

• Reservation of appointments or, posts under Art.16(4) is confined to initial appointments only and can NOT extend to providing reservation in the matter of promotion.

• Following are the services , which are excluded from the rules of reservation; namely:-

Defence (technical) services,

Technical posts in R & D,

Teaching posts of professors & above posts in super specialists in medicine, engineering. etc.

(II) The Right to move the Supreme Court:-

Art.32 of Indian Constitution provides the Right to

move the Supreme Court by appropriate

proceedings

& shall have power to issue directions or, orders

or,

writs, including writs in the nature of

Habeas Corpus,

Mandamus,

Prohibition,

Quo warranto

Certiorari,

Whichever may be appropriate, for the

enforcement

(III) Appellate power of Supreme Court:-

Following are the appellate power of the Supreme Court under the

Constitution of India viz:-

(a) Art.132:- It provides for an appeal lies to the Supreme court from any judgement, decree or, final order of a High court, whether in civil, criminal or, other proceedings, if the High Court certifies that the case involves a substantial question of law as to the interpretation of the constitution.

(b) Art.133:- It provides for an appeal to the Supreme Court from any judgement, decree or, final order in a civil proceeding of a High Court if the high Court Certifies that the Case involves a substantial question of law of general importance and in its opinion, the said question needs to be decided by the Supreme Court.

(c) Art.134:- It provides for an appeal to the Supreme court from any judgement, final order or, sentence in a criminal proceedings of a High Court if

1) it has on appeal reversed an order of acquittal of an accused person and sentenced him to death Or,

2) has withdrawn for trial before itself, any case from any court subordinate to it & has in such trial convicted the accused & sentenced him to death Or,

3) it certifies that the case is a fit one for appeal to the Supreme Court.

(IV) Special Leave Petition (SLP):-

Art.136 of the Constitution of India read with Order XVI, Rule-4 (1)(a)

of the Supreme Court Rules Provides that-

“The Supreme Court may in its discretion great special

leave

to appeal from any judgement, decree, determination, sentence or

order in

any case or, matter passed or made by any court or tribunal

constituted by

or, under any law relating to armed forces.

The petitioner –in-person may file the SLP (C) in prescribed

form (APPENDIX-I) as provided Under the Supreme Court Rules

along with other legal formalities like court fee(s), certified copy of

the impugned judgment of the Court Below, List of dates, Affidavit

etc. as prescribed under the said Rules. If necessary it can also be

filled through a member of Supreme court advocate-on-Record

Association and/or settled by a member of Supreme Court Bar

Association/Preferably for all practical purposes.

(V) Contempt jurisdiction of Hon’ble Supreme Court:-

Art.129 Constitution of India,1950 provides that the

Supreme

Court is a Court of record & shall have all the powers of

such

a court including the power to punish for contempt of

itself.

However, Fair & reasonable criticism of a judicial

act

in the interest of the public good does not amount to

contempt. But it is a contempt to publish in a news paper

a

photograph of a person charged with a offence when a

question of identity may arise at the trial. [Ref:

(VI) Jurisdiction of Hon’ble Supreme Court of India in the

matter of Domestic Arbitration:-

Arbitration is one of the oldest methods of setting civil disputes

between two or, more persons by reference of the dispute to an

independent and impartial third person, called Arbitrator, instead of

Litigating the matter in the usual way through the courts. It saves time

& expense. It also avoids unnecessary technicalities a& at the same

time ensures “Substantial justice within limits of the law.”

Old Act Vs. New Act:- This was the ‘hot Question’ amongst many of

our learned friends that whether provisions contained in the

Arbitration Ac, 1940 (Old Act/ 1940 Act, in Short) would govern the

proceedings arising out of the award on the Arbitration & conciliation

Act 1996 (New- Act/!((^ Act, in short).I simply said ‘NO’

It is important to NOTE here that an Arbitrator, duly appointed under

this Act is an extra-judicial tribunal whose decision is binding on the

parties concerned in all respects & conclusive in nature.

(VII) Jurisdiction of Hon’ble Supreme Court Freedom of

trade, commerce & intercourse within the territory of India :-

The freedom of trade & commerce is an important topic under the

constitutional law. It has also significant impact to our economy

business & corporate houses. All the constitutional Provisions relating

to the same is governed by pat-XII of the Indian Constitution. There

are series of judgements from various court of law including High

Court(s).The Hon’ble Supreme court of India has laid down the

principle of law differently on significant issues under this part of the

Constitution.

In state Bombay Vs. Chamarbaugwala, the Hon’ble Supreme

Court held that the protection offered by Art.301 is confined to such

activities as may be regarded a lawful trading activity & does not

expend to an activity which is res extra commercium & can not be

said to be trade. It can not be said to be ‘trade’. It can not include

activities which are inherently pernicious, such as trafficking in women;

hiring of goondas for committing crimes (Ref.Chobe Vs.

Palnitkar).

Further it can not include gambling & that accordingly there is

NO

question of the application of Art.301 or, 304 ti law made for the

suppression of such activities( Atiabari Tea co. Vs. State of

Assam)

To simplify ,the freedom of trade and commerce between

the

state is not made absolute but is subject to the exception, as

enumerated under the remaining constitutional provisions under

part-

XIII

It is important to note here that Art.305 was

added by the constitution (4th amendment) Act, 1955. It declares

that

any law providing for state monopoly shall be protected.

Therefore a

(VIII) Statutory Appeals before Hon’ble Supreme Court of

India:-Following are the important statutes which can be considered at this

stage;

Namely:-

(1) Cr.P.C(Code of Criminal procedure 1973)

(2) Supreme Court(enlargement of criminal Appellate jurisdiction)

Act,1970.

(3) Supreme Court(enlargement of criminal Appellate jurisdiction)

Amendment Act, 1972.

(4) Customs Act

(5) Central Excise and salt Act.

(6) Consumer Protection Act, 1986.(COPRA)

(7) Contempt of Courts Act, !971.

(8) Advocates Act, 1961

(9) Representation of people Act

(10) Special Court (Trial of offences relating to transaction and

securities) Act 1992

(11) MRTP (Monopolies and Restrictive- Trade Practices Act.

(12) TRAI Act (Telecom Regulatory- Authority of India Act)

(13) SEBI Act (Securities & Exchange Board of India Act)

(14) Income Tax Act.

(15) TADA [territories 7 disruptive Activities (prevention) Act,

1987]

It is important to note here that in all the above

cases,

the Hon’ble Supreme Court Of India has jurisdiction to entertain

appeals as provided under the respective statutes. Further,

accordingly

the nature of the matters/ cases, the period of Limitation and

Court

fee(s) is also prescribed

(IX) ORGINAL JURISDICTION:-

The original jurisdiction of Hon’ble supreme court of India

includes the following writs viz:

(1) Art.32 of the Constitution of India ,1950.

(2) Original suits under Art.13 of the Constitution of India 1950

(3) Transfer of cases under Art. 139 A(1) of the Constitution of

India, 1950.

(4) Transfer of cases under Art.139A(2) of Constitution of India,

1950.

(5) Transfer of cases under sec. 25 of the code of civil

procedure

(6) Transfer of cases under sec.406 of code of criminal

procedure.

(7) Election disputes under Art.71 of constitution of India of

India, 1950.

(X) ADVISORY JURISDICTION:-

This is another important jurisdiction of Hon’ble Supreme Court

of

India & includes the following:-

(a) Art.143(1) of the Constitution of India, 1950.

(b) Art. 317 of the Constitution of India,1950.

(XI) REFERENCES:-

This part of Jurisdiction includes following to sections viz:-

(a) Sec.257 of Income Tax Act.

(b) Sec. 7(2) of the MRTP Act.

(XII) REVIEWS:-

THIS IS ANOTHER IMPORTANT PART OF JURISDICTION UNDER

Art.137 of the constitution of India 1950.Accordingly, it Provides that

subject to provisions of any law & rules mote under Art.145, the

Hon’ble supreme court of India has the power to review any

judgement pronounced or, order made by it.

Under the Supreme court Rules, 1996 such a petition is to be

filled within 30 days, from the date of judgement or, order and as far

As practicable, it is to be circulated, without oral arguments, to the

same bench of judges who delivered the judgement or order sought

to be reviewed.

The Hon’ble Supreme Court has laid down the law in the case of

Rupa Ashok Hurrah Vs. Ashok Hurrach that even after dismiss of a

review petition under Art.137 of the constitution of India, the Hon’ble

Supreme Court may entertain a CURATIVE-PETITION & re consider

its judgement/order, in exercise of its inherent powers in order to prevent

abuse of its process, to cure gross miscarriage of justice.

Public Interest Litigation (PIL)Introduction:- A Public Interest Litigation (PIL) is meant for enforcement of

fundamental & other legal rights of the people who are poor, weak, ignorant

of legal redressal system Or, otherwise in a disadvantageous position, due to

their social or, economic background. Such Litigation can be initiated only for

redressal of a public injury, enforcement of a public duty or, vindicating

interest of public nature. It is necessary that the petition is not for personal

gain or, for other extraneous consideration & is field benefits in public

interest.

It is very important to note here that a ‘PIL’ ever stands for

public interest Litigation not for private/personal interest litigation and can be

discussed as here under:-

(i) The matters of public interest

(ii) The matters of private nature

(iii) Filing works/procedure

(iv) Letter Petition

(v) Jail Petitions

(vi) Supply of copies & Inspection of Record

(vii) Legal Aid & Advice

As discussed above, A ‘PIL’ arising out of socio-legal issues & where in the

interest of public is involved, may include the following:-

Bonded Labour Matters

Matters of neglected children

Exploitation of casual labourers & Non-payment of wages to them(expect

in- individual cases)

Matters of harassment or, torture of persons belonging to SC/ST & Economically Backward classes either by co-villagers Or, by police.

Matters relating to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage & culture, antiques, forests & wild life etc.

The matters of private nature includes

I. Threat to or, harassment of the petitioner by private persons

II. Seeking enquiry by an agency other than local police

III. Seeking police protection

IV. Landlord- tenant dispute

V. Service matters

VI. Admission to Medical/Engineering Colleges

VII. Early hearing of matters pending in High Court & Sub-ordinate courts & are not considered matters of public interest.

Letter

Petitions:-Petitions received by post even through not in public interest, can be

treated

as writ petitions if so directed by the Hon’ble judge nominated for this

purpose, & includes the following:-

Individual petitions complaining harassment or, torture or , death in

Jail, by Police,

Complaining harassment such as harassment for dowry, bride

burning, rape, murder & kidnapping,

Complaints relating to family pensions &

Complaints of refusal by police to register the case, can be

registered as writ petitions, if so approved by the concerned

Hon’ble judge.

If deemed expedient, a report from the concerned

authority is called before placing the matter before the Hon’ble

judge for directions. If so directed by the Hon’ble judge, the letter is

registered as a writ petition & is thereafter listed before the court

before hearing.

Jail

Petitions:-If a person is in the jail& is not represented by an AOR, he can submit

his

Petition, along with the certified copy of the impugned judgement &

written

arguments which he desires to advance in support of his petition, to

the

OIC of the jail where he is lodged. The OIC of the jail forwards the

petition

to the Hon’ble Supreme Court of India the copy of trial court

judgement &

in case, the petition has been filed after expiry of the prescribed

period of

Limitation, an application for condonation of delay, is required to be

filled

with the petition.

The date on which thee petition is presented before the

Jail

CAVEAT

SWhere a petition, not relating to any pending appeal, is expected to be

filed

but has not yet been heard, any person claiming right to appear

before the

Court on the hearing of such petition, may lodge a caveat in that

matter.

As & when, any such petition is filed, the registry will send a

notice of

Lodgement of the petition to him & shall require the petitioner to serve

copy of the petition upon the caveator, along with the copies of the

papers

filed in support of the petition. If the petition has already been filed,

the

petitioner shall be required to serve copy of thew petition upon the

caveator & deliver copies of papers filed in support of the petition to

him.

It is very pertinent to mention here that a [person

represented by

Limitation & court fee(s)The Supreme Court Rules provides payment of court fee(S), differently

for

different matters are prescribed there in. Further, the petition/appeal is

confined only to the pleadings in the court/tribunal below & if not,

application

For taking additional grounds/documents has been filed with affidavit &

court

fee(s). If there are vernacular-documents/portions/lines (say

Hindi/Tamil), an

Application for exemption from filing official translation, with affidavit and

court fee(s) has been filed. If the Petition/ Appeal is time barred, an

application

for condonation of delay mentioning the no. of days of delay, with

affidavit &

court fee has been filed.

“No court Fee(s) is payable on the matter of

(i) Reference

Criminal matters(SLPs/Appeal/WPs /TPs etc.)

Allocation, Listing of cause ListsUnder the of the land, the Hon’ble Supreme court of India is the

Highest

Court & has inherent power to deal with all types of cases. The

matters

expected to be filed in the Hon’ble Supreme Court of India have been

divided into 45 subject Sub categories, as here under:-

LABOUR MATTERS: 0101 to 0111

RENT ACT MATTERS: 0201 to 0206

DIRECT TAXES MATTERS: 0301 to 0323

INDIRECT TAXES MATTERS: 0401 to 0433

LAND ACQUISITION & REQUISITION MATTERS:- 0501 to 0504

SERVICE MATTERS: 0601 to 0613

ACADEMIC MATTERS: 0701 to 0706

LETTER PETITION & PIL MATTERS: 0801 to 0812

ELECTION MATTERS: 0901 to 0911

COMPANY LAW, MRTP & ALLIED MATTERS: 1001 TO1008

ARBITRATION MATTERS

HABEAS CORPUS MATTERS

CRIMINAL MATTERS: 1401 to1425

APPEAL AGAINST ORDERS OF STATUTORY BODIES: 1501&1502

FAMILY LAW MATTERS: 1601 to 1611

COMTEMPT OF COURT MATTERS: 1701 to 1705

ORDINARY CIVIL MATTERS: 1801to 1817

THREE JUDGES BENCH MATTER

FIVE JUDGES BENCH MATTER

ELEVEN JUDGES BENCH MATTER

SEVEN JUDGES BENCH MATTER

NINE JUDGES BENCH MATTER

APPOINTMENT ETC. OF CONTITUTIONAL FUCTIONARIES: 2401 to 2407

STATUTORY APPOINTMENTS: 2501 to 2504

PERSONAL LAW MATTERS: 2601 to 2605

RELIGIOUS & CHARITABLE ENDOWMENTS: 2701 to 2703

MERCANTILE LAWS, COMMERCIAL TRANSACTIONS INCLUDING BANKING: 2801 to 2811

SIMPILE MONEY & MORTGAGE MATTERS ETC.: 2901 to 2903

MATTERS RELATING TO JUDICIARY

ADMISSION TO EDUCATIONAL INSTITUTIONS OTHER THAN

MEDICAL & ENGINEERING

ESTABLISHMENT & RECOGNITION OF EDUCATIONAL INSTITUTION

EVICTION UNDER THE PUBLIC PREMISES (EVICTION) ACT

MINES, MINERALS & MINING LEASES

LAND LAWS & AGRICULTURAL TENANCIES: 3501 to 3505

ADMIRALITY & MARITIME LAWS

MATTERS RELATING TO COMMISIONS OF ENQUIRY

MATTERS RELATING TO CONSUMER PROTECTION: 3801& 3802

MATERS PERTAINING TO ARMED FORCES & PARAMILITARY FORCES

ADMISSON/TRANSFER TO ENGINEERING & MEDICAL COLLEGES: 4001 to 4003

ALLOCATION OF 15% ALL INDIA QUOTA IN ADMISSION/TRANSFER

TO MEDICAL COLLEGES

MATTERS RELATING TO LEASES, GOVT. CONTRACTS & BY LOCAL BODIES.

STATE EXCISE- TRADING IN LIQUOR- PRIVILEGES, LICENCES –DISTILLERIES BREWERIES

REFERENCE UNDER ARTICLE-143 OF THE CONSTITUTION OF INDIA

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