Unit3

Questions
1. Jurisdiction of supreme court
2. Powers of high court regarding writs
3. Speaker
4. Transfer of judges
5. Contempt of court

Jurisdiction of supreme court

Synopsis
Introduction
The Supreme Court of India is the court of final appeal and the highest
constitutional court. In order to enable it to perform its sacred duties, it has been
conferred with a very wide jurisdiction. The Court hears appeals from the orders of
the subordinate courts, interprets and upholds the Constitution, safeguards and
shields the fundamental rights of the citizens, and resolves inter-state disputes. At
the time of its inception in 1950, the Supreme Court inherited the jurisdiction of
the Federal Court. The jurisdiction and powers of the Supreme Court are similar to
those of the Federal Court. However, in some matters, the jurisdiction of the
Supreme Court has expanded beyond that of the Federal Court.
Jurisdictions
1. Court of record:
Article 129 makes the Supreme Court a court of record and confers all the powers
of such court including the power to punish for its contempt. A court of record is a
court whose records are admitted to be of evidentiary value and they are not to be
questioned when they are produced before the court.
Once a court is made a court of record, its power to punish for contempt
necessarily follows from that position. The power to punish for contempt of court
has been expressly conferred on the Supreme court by our constitution. This
extraordinary power must be sparingly exercised only where the public interest
demands.
The contempt of courts act 1971, defines the powers of courts for punishing
contempt of courts and regulates their procedure. It also provides for judges to be
tried for contempt of court.
A judge or magistrate or other person acting judicially shall be liable for contempt
of his own court or of any other court in the same manner as any other individual is
liable. The jurisdiction of the supreme court under Article 129 is independent of
the statutory law. This right is subject to the law of contempt as well as provisions
of the constitution.

Original jurisdiction:
The supreme court has original jurisdiction in any dispute
* between the government of India and one or more states
* between the government of India and any state or states on one side and one or
more other states on the other
* between two or more states
The supreme court in its original jurisdiction cannot entertain any suits brought by
private individuals against the government of India. The dispute relating to the
original jurisdiction of the court must involve a question of law or fact in which the
existence of legal right depends.
The original jurisdiction of the supreme court however does not extend to the
following matters:
* The jurisdiction of the supreme court shall not extend to a dispute arising out of
any treaty, agreement, covenant, engagement, sanad or other similar instruments
which was executed before the commencement of the constitution and continues to
be in operation or which provides that the jurisdiction of the supreme court shall
not extend to such a dispute
* Under article 262(1) parliament may by law exclude the jurisdiction of the
supreme court in disputes with respect to the use, distribution or control of the
water of any inter- state river or river-valley.

Appellate jurisdiction:
The supreme court is the highest court of appeal in the country. The writ and
decrees of the court run throughout the county. It can be truly said that the
jurisdiction and powers of the supreme 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

The appellate jurisdiction of the supreme court can be divided into four main
categories;
1. Constitutional matters
2. Civil matters
3. Criminal matters
4. Special leave to appeal

Constitutional matters:
Under Article 132(1) an appeal shall lie 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 under article 134-A that the case involves a substantial
question of law as to the interpretation of this constitution.
Under Art132(1) three conditions are necessary for the grant of certificate by the
high court;
1. The order appealed must be against a judgement, decree or final order made by
the high court in civil, criminal or other proceedings
2. The case must involve a question of law as to the interpretation of this
constitution and,
3. If the high court under article 134-A certifies that the case be heard by the
supreme court

Even after the certificate is granted by the high court, the supreme court may refuse
to hear the appeal if it is satisfied that the appeal is not competent.
Civil matters:
Article 133 provides that an appeal shall lie to the supreme court from any
judgement, decree or final order in a civil proceedings of a high court only if the
high court certifies under article 134-A
1. That the case involves a substantial question of law of general importance and
2. That in the opinion of the high court the said question needs to be decided by the
supreme court.
Under Article 133 the supreme court doesn't interfere with the concurrent findings
of facts by the trial court and high court unless it is shown that important and
relevant evidence has been overlooked, or unless it is fully unsupported by
evidence on record. It is left to the judicial discretion of the court as to when it will
interfere in the concurrent findings of fact of trial court and high court.
In an appeal under article 133 the appellant cannot be allowed to raise new grounds
not raised before the lower court.

Criminal matters:
According to Article 134 an appeal lies to the supreme court from any judgement,
final order or sentence in a criminal proceedings of a high court in the following
ways:
1. Without a certificate of high court
* has on appeal reversed and order of acquittal of an accused person and sentenced
him to death;
* had withdrawn for trial before itself any case from any court subordinate to its
authority and has in such trial convicted the accused person and sentenced him to
death
2. With a certificate of the high court
Under 134(c) an appeal lies to the supreme court if the high court certifies under
134-A article that it is a fit case for appeal to the supreme court.
The power of the high court to grant fitness certificate in the criminal cases is a
discretionary power, but the discretion is a judicial one and must be judicially
exercised along with the well established lines which govern these matters. The
supreme court has laid down entire guiding principles for the high court to follow
in granting certificates.
Special leave to appeal:
Under article 136 the supreme court is authorised to grant in its discretion 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 in the territory of India
The only exception to this power of the supreme court is with regard to any
judgement, etc, of any court or tribunal constituted by or under any law relating to
the armed forces.

Advisory Jurisdiction:
Article 143 provides that if at any time it appears to the president that ----
* a question of law or fact has arisen or is likely to arise
* the question is of such a nature and of such public importance that it is expedient
to obtain the opinion of the supreme court upon it, he may refer the question for the
advisory opinion of the court and the court may after such hearing as it thinks fit,
report to the president it's opinion thereon
Under clause(2), if the president refers to the supreme court matters which are
excluded from its jurisdiction under the proviso to article 131, the court shall be
blind to give its opinion thereon.
The supreme court of India, like the Canadian supreme court, exercises the powers
to give advisory opinion to the president.
The government of India Act 1935, empowered the governor general to consult the
federal court.

Powers of high court related to issue of writs

Synopsis
Introduction
Article 226 provides that notwithstanding anything in Article 32, every high court
shall have power, throughout the territorial limits in relation to which it exercises
jurisdiction to issue to any person or authority including the appropriate cases, any
government, within those territories, direction, orders of writs, including writs in
the statute of habeas corpus, mandamus, prohibition, quo warranto and certiorari or
any of them

Explanation
The writs mentioned in Article 226 are known as prerogative writs because they
had their origin in the prerogative power of superintendence over its officers and
subordinate courts.
This article now invests all high court in India with the power to issue prerogative
writs for the enforcement of fundamental rights.

Jurisdiction of the high court

The jurisdiction of the High Courts have also been provided in Article 226 of the
Constitution, and they can be divided into two parts:
Territorial
The High Courts have the right to issue writs within the territory of the state which
the High Court is concerned with. Under Article 226(2) the court has been granted
a certain degree of extra-territorial jurisdiction as well. High Courts are allowed to
issue writs to any government, authority or person outside their territorial
jurisdiction if the whole or part of the cause of action arises in their concerned
state.

Subject matter
High Courts have been granted a large ambit to exercise this power. A High Court
can issue writs not only for the enforcement of Fundamental Rights given in Part
III of the Constitution but also non-Fundamental Rights for which the Constitution
of India has used the words “for any other purpose” to widen the scope of High
Court’s Jurisdiction.

Difference between writ jurisdiction of high court and supreme court

The Constitution of India has given the power to issue writs to the Supreme Court
in Article 32. This power is wider in case of High Courts as the Supreme Court has
restricted powers when it comes to issuing writs. The difference is given below:

* The Supreme Court can issue writs only in case there is a violation of
Fundamental Rights.
* The High Court has a wider scope to exercise this power. They can issue writs
not only when there is a violation of Fundamental Rights but also in other cases.

Case Laws
Sheela Bharse v. State of Maharashtra AIR 1983 SC 378, the court expanded
the scope of this writ by adjudging that it is not necessary that the detainee should
be the petitioner. An interested party who has some connection with the case may
also do so.
In G. Venkateshwara Rao v. Government of Andhra Pradesh AIR 1966, SC
828, the court held that a private person may file an application for a writ of Quo
Warranto. It is not required that this person is personally affected or interested in
the case.
In Tikaram V Mundikota Shikshan Prasarak Mandal, it was held that a writ
petition by a teacher of a private school challenging the order passed by the
Government officer is a quasi-judicial proceedings and therefore maintainable
under Article 226

Conclusion
The power to grant writs is one of the most important powers granted to the High
Courts. Writs protect the rights of the citizens by providing a faster remedy,
thereby upholding the principles of democracy by providing quick justice. The
importance of writs cannot be underestimated, and the courts must necessarily use
this power judiciously as they have been given a very wide ambit to practice this
power.

Transfer of judges
Synopsis
Introduction
In India, the Transfer of Judges undergoes a long process, where the “Chief
justice” makes the final decision in which state and at which “High court” the
particular judge would be transferred.
Moreover, a judge goes through a wide range of constitutional laws and procedures
and hands over the case to another judge.
However, as per article 222, for the judge, there is a provision regarding
transferring to one high court from another.
Transfer procedure
The transfer of the high court judges has been enabled by the “Quasi Federation”
and “Cooperative federation”, in the guidance of “Article 222’. However, no
particular reasons behind the transfer of specific High court judges have been
determined. It has been observed that previously when the transfer procedure was
controlled by the “Union of India”, showed a lower rate of transfer of high court
judges. Nevertheless, the high court judges have been experiencing frequent
transfer issues, after the involvement of “Judicial Collegium”.
In addition, the transfer has been attempted if any particular judge shows
disintegration in responsibilities. However, it is necessary to show effective
evidence based on the severity of the complaints, and after that transfer would be
justified. On the other hand, many judges have thought that, before making any
final transfer decision, an opportunity to explain the concern from the standpoint of
the judge should have been given to prove the complaint groundless.
The consent is not necessary element of Article 222. The only requirement is that
there must be a consultation with the Chief justice of India.

After the 99th amendment of the constitution, the president may on the
recommendation of the National Judicial Appointments Commission transfer a
judge from one high court to another high court. This amendment did away with
the consultation with the Chief justice of India
The 99th amendment having been declared unconstitutional, constitutional position
as it stood prior to this amendment shall continue and therefore a judge of the high
court can be transferred by the president after consultation with the Chief justice of
India.
Conclusion
It has been concluded that, in India, the transfer of high judges has been executed
based on “Article 222” under the supervision of “Chief justice” by the President.
Although the clear parameter of transfer of high court judges has not been
determined, the transfer has been performed to secure the constitution and justice.
Speaker
SYNOPSIS
Introduction
 The speaker is the chief presiding officer of the legislative assembly of a state
 The speaker holds the impartial and independent office in the session
 The speaker is elected by the members of the assembly from their own
members, same for deputy speaker
 The deputy speaker will perform the duties of the speaker when the speaker is
absent or while the office of the speaker is vacant.
 The speaker works as the custodian and protector of the dignity of the house.

Powers and functions of Speaker

1] Presides over the meetings: The speaker presides over the meetings of the
house and regulates proceedings in the house, regulates the behavior and discipline
of the house while in session.
2] Regulates proceedings: The speaker regulates proceedings of the house,
regulates the manner of the proceedings and ensures that there is decorum in the
house.
3] Ensures decorum: The speaker maintains the decorum and discipline of the
house especially during the debates so as to maintain the dignity of the house.
4] Interprets rules of assembly: The speaker interprets rules of assembly and
decides all points of order and questions of procedure for the smooth functioning
of the session.
5] Can ask the member to withdraw: The speaker can ask the members to
withdraw from the house for any violation of the rules of the house, and can
suspend them for the whole session if a member disregards the authority and
rulings of the chair.
 6] Can adjourn or suspend session: The speaker can adjourn or suspend the
session of the house in case of grave disorder or violation of rules and regulations
by the members.
7] Certifies bills: He certifies or approves whether a bill is money bill or not.
8] Custodian of the dignity of the house The speaker is the custodian or protector
of the dignity of the house, who renders his functions to maintain the dignity of the
house.
9] Impartial arbitrator: The speaker is the independent and impartial arbitrator
who needs to remain unbiased to give effect to legitimate proceedings of the house.
Removal of speaker and deputy speaker [ Article 179]
 Both the speaker and deputy speaker vacate their offices when they cease to be
the members of the assembly
 The may also resign from their offices.
 They can be removed from their offices, by the resolution of the assembly
passed by the majority of all the members of assembly [ Article 179]
 For moving such a resolution 14 days notice is required

Conclusion
The speaker is not a presiding officer, they wield significant power in shaping the
functioning of the house and influencing the balance between the ruling party and
the opposition.

Contempt of court
Synopsis
Introduction
Article 129 makes the Supreme Court a court of record and confers all the powers
of such court including the power to punish for its contempt. A court of record is a
court whose records are admitted to be of evidentiary value and they are not to be
questioned when they are produced before the court.
Once a court is made a court of record, its power to punish for contempt
necessarily follows from that position. The power to punish for contempt of court
has been expressly conferred on the Supreme court by our constitution. This
extraordinary power must be sparingly exercised only where the public interest
demands.
The contempt of courts act 1971, defines the powers of courts for punishing
contempt of courts and regulates their procedure. It also provides for judges to be
tried for contempt of court.
A judge or magistrate or other person acting judicially shall be liable for contempt
of his own court or of any other court in the same manner as any other individual is
liable. The jurisdiction of the supreme court under Article 129 is independent of
the statutory law. This right is subject to the law of contempt as well as provisions
of the constitution.
Types of contempt of court
 Under Section 2(b) of the Act of 1971, Civil contempt refers to willful
disobedience to any judgment, decree, direction, order, or other processes of
a court, whereas criminal contempt involves actions that scandalize or tend
to scandalize, or lower or tend to lower the authority of any court.
 Under Section 2(c) of the Act of 1971 “criminal contempt” means the
publication (whether by words, spoken or written, or by signs, or by visible
representation, or otherwise) of any matter or the doing of any other act
whatsoever which—
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of,
any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial
proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner;

Defences available for contempt of court

 Innocent Publication: Under Section 3 if the persons so publishing had at
the time of its publication no reasonable grounds for believing that the
proceeding was pending, the publication is described as “innocent”.
 Fair and Accurate Report of Judicial Proceeding: Under Section 4 a
person shall not be guilty of contempt of court for publishing a fair and
accurate report of a judicial proceeding or any stage thereof.
 Fair Criticism: Under Section 5 it is the privileged right of the Indian
citizen to believe what he considers to be true and to speak out his mind.
 Complaint Against Presiding Officer: Under Section 6 A person shall not
be guilty of contempt of court in respect of any statement made by him in
good faith concerning the presiding officer of any subordinate court.
 Truth as a Defence: Section 13 enables the Court to permit justification by
truth as a valid defence in any contempt proceedings if it is public interest or
bona fide.
 Apology: Proviso to Section 12(1) says that the accused may be discharged,
or the punishment awarded may be remitted on apology being made to the
satisfaction of the Court.

Punishment
The Contempt of Court Act of 1971 punishes the guilty with imprisonment that
may extend to six months or fine of Rs 2,000 or both.
The Contempt of Court of India act, 1971 allows discharging the accusation if an
apology is made to the court. It is upon the court’s discretion to decide whether the
apology is sufficient

Criticisms
It is criticized to be reminiscent of British colonialism in India as the contempt
laws have been abolished from the United Kingdom itself.
Demands have been raised to restrict contempt to only “willful disobedience” of
directions/judgments of the court and remove “scandalizing the court”.
It is also said that it may lead to judicial overreach.
There are high numbers of contempt cases pending in various High Courts and the
Supreme Courts, which delays the justice administration by an already
overburdened judiciary.

Conclusion
The Act of 1971 requires careful scrutiny and, if necessary, reform to address the
ambiguities and concerns that have been raised over the years. The judiciary's
commitment to upholding the principles of democracy, including freedom of
expression, will be crucial in navigating the delicate equilibrium between
protecting the court's authority and preserving citizens' rights in the years to come.