Updated: Jul 4
(SPECIAL INTERVIEW OF ADV PRASHANT GUPTA)
Saumya Srivastava (Research Intern)
The session began with Mr Abhivardhan, Mr Vaibhav and Mr Vignesh. Mr Abhivardhan welcomed the esteemed guest for the interview Adv Prashant Gupta and Mr Vignesh proceeded with the guest's formal introduction.
The speaker began with the elucidation of the meaning of jurisdiction as in law, the authority of a court of a particular place to hear and decide cases. Juxtaposed it with the types of jurisdictions that the honourable Supreme Court of India holds.
The SC of India has the:
1. Original jurisdiction
2. Writ jurisdiction
3. Appellate jurisdiction
4. Advisory jurisdiction
5. Court of record
6. Power of judicial review
7. Constitutional Interpretation
The Indian constitution holds vast powers and the SC stands as the final court of appeal in the country. According to Article 141 of the Indian Constitution (IC), if the SC orders something then its decision stands to be binding on all the subordinate courts respectively.
The SC has the power of original jurisdiction under Article 131 of the IC. By this power, the SC acts as the guardian of the constitution. Original Jurisdiction can be defined as a court's capacity to hear and decide a case before any lower court. There also lies a restriction over the SC that all the matters that are settled before the making of the constitution those cannot be worked upon by the SC rather it would remain amicable by the government.
Section 115 of CPC states, jurisdiction refers to the fact that when a case is administered from the lowest court, following the hierarchy till the highest court.
In 1961, West Bengal v Union of India was filed. It was a dispute relating to coal mines. The SC heard the case and dismissed it prima facie. Under Article 131 of the IC, if any treaty or legislation has been formed before the formation of the SC then the matter will not be considered by the SC and will be dismissed at the first instance.
Since writs can be issued by the SC, it gives vast powers to the court as writs are called the heart and soul of the constitution. In case of breach of Fundamental Rights, the SC has powers to prevent any further infringement.
Though Article 226 gives High Courts the power to issue writs, it is Article 32 of IC that allows the SC to issue writs as well. There is no use of Fundamental Rights if they are not properly enforced. SC stands firmly on the grounds as the guarantor of the legal enforcement of these rights because a mere declaration of rights and privileges without further action upon it will render them meaningless and worthless.
The concept of Writ jurisdiction comes from the English law. However, there lies the concept of prerogative writs.
There are five types of writs:
1. Habeas Corpus- It is a Latin expression, which signifies "You ought to have the body". The writ is given to produce an individual under the steady gaze of a Court who has been kept or detained and not delivered before the judge within 24 hours whether in jail or private care and would discharge the individual if such confinement is discovered illicit. The reason for the writ isn't to rebuff the miscreant however simply to discharge the individual unlawfully kept.
2. Prohibition- This refers "to preclude or to stop" and is prominently known as "Stay request". The writ is given by the Supreme Court or any High Court when a lower court or a semi-legal body attempts to disregard the forces vested in it, forbidding the last from proceeding with the procedures in a specific case. In India, forbiddance is given to shield the person from self-assertive managerial activities. Forbiddance doesn't lie against a position releasing official capacities however against an authority releasing legal capacities.
3. Mandamus- It is a Latin word, which signifies "to order". It is a legal cure as a request to act lawfully and to keep away from executing an unlawful demonstration. The Supreme Court may give a mandamus to authorize the crucial right of an individual when its infringement by some administrative request or act is affirmed
4. Quo Warranto- It is a Latin expression, which implies '' by what warrant'. The writ is given to limit an individual from holding an open office to which he isn't entitled. It tends to be given against workplaces made by the constitution, for example, the Advocate-General, the speaker of administrative get together, officials under the metropolitan demonstration, individuals from a nearby government board, University authorities and educators, yet it won't issue against the overseeing council of a non-public school which isn't named under the authority of a sculpture.
5. Certiorari- It is a Latin word signifying 'to be informed'. 'Certiorari' might be characterized as a legal request working in persona and completed in the first lawful procedures, be given against established bodies, legal bodies like a partnership, non- legal bodies like organizations and helpful social orders and private bodies and individual requiring the records of any activity to be confirmed by the court and managed by the law.
Example of this writ is the latest case on NGT, wherein, a polymer gas plant in Vishakhapatnam went to the SC claiming that the NGT cannot impose 50 crore penalty on them and has no power to compulsorily ask them to pay the penalty and take Suo moto cognizance of the matter like they did. However, on 3rd Nov 2020, the SC gave its decision that the NGT has the Suo moto powers and therefore is not wrong in its course of action.
In layman's terms, if a person has a complain he/she goes to his/her parents to complain. If parents are not available, he prefers his grandparents. Similarly, if a person is not relieved from a lower court's decision, he/she files an appeal in the higher court. In the SC an appeal can file via its appellate jurisdiction.
There are some important articles of the IC that need to consider here:
1. Article 132- when a judgement from any lower court is passed against somebody there are some matters when the appeal for that matter moves directly to the SC from the High Court.
2. Article 133- when there is a substantive question of law in civil cases the appeal gets transferred from the HC to the SC.
3. Article 134- Under article 134 the appeal for criminal matters is considered. Cases under Article 134 are generally not transferred to the SC but a decision of the lower courts can be reversed by SC in certain cases. If by any chance the LC has faltered in the decision, the accused is punished and a question of life arises it then becomes important for the SC to intervene and impart justice.
If there arises any question of law in HC and it claims to be not understanding the correct approach to it, the SC is then referred. An appeal is not a right therefore no court is can be bound to listen to an appeal.
There are certain provisions like Section 96 of CPC that mentions, on which question of law or fact one can file an appeal as it is not right but a constitutionally granted privilege.
SPECIAL LEAVE PETITION
Under Article 136, the SLP can be filed in the SC. It has been given a residual power that will be practised uniquely in situations where emerges a significant inquiry of law or gross injustice has been finished. Under this, the oppressed party is given an exceptional consent to be heard in Apex Court in a claim against the requestor judgment of any court or council in the region of India. This isn't an appeal but a petition or a request petitioned for an appeal. After the documenting of SLP, the Supreme Court may hear the issue and on the off chance that it regards fit may allow and that request will be changed over to advance into an appeal. After that SLP will turn into an appeal, the court may hear the issue and likewise condemn. This is a special power from the constitution to the SC that they can go beyond their jurisdiction to decide some cases. It very well may be documented against any judgment of High Court inside 90 days from the date of judgment or it tends to be recorded inside 60 days against the request for High Court declining to concede the certificate of readiness for the claim to Supreme Court.
Simply put, if a question is asked to someone he or she replies in the form of his advice or opinion and now it depends on the listener to accept and implicate that advice to himself/ herself or not. Article 143 gives SC the advisory jurisdiction.
Under Section 113, a lower court has to decide a case but it cannot decide as there is no precedent available then the LC under this section can transfer the case to the SC for advice. However, lower courts will have to obey the advice of the SC in this case.
In case of the President of the country asking a piece of advice from the SC, the first question that arises in our minds is if he is the first person of the country then why would he need the advice of the SC. The answer to this is- because the SC is the base of the judiciary and the executive and the legislative cannot interfere with its working, therefore its advice if worked upon might turn out to be supreme that cannot be infringed. The fact remains that it is solely the discretion of the President to consider the opinion or not.
For example- In the case of a water dispute between two states, their respective HC cannot decide the case. It gets transferred to the President and here as to resolve the question of law or the question of facts the President can consider taking an opinion from the SC.
In Commercial agreements and pre constitution agreements, the SC is bound in these matters because these were already drafted before the constitution hence called pre constitution agreements. There was no law when these were formulated and now if a dispute arises the SC will have to resolve it. However, in some cases, the SC is not bound to advice. It may choose to answer or not.
The second point of question that arises is till today has the President taken any advice from the SC or not? This can be answered with a yes as there have been 15 matters till today where the President has taken up the advice of the SC. The 1stwas 1961 relating to the Delhi Act and the 15thwas relating to the 2G spectrum case. Wherein, the judgement was not given but a question was raised to the president that the natural sources of the company in question had to be sold or not. It was finally decided natural resources are not personal and they belong to the public, therefore, cannot be sold.
COURT OF RECORD
By Article 129 of the IC, any record of the SC is important as the SC is the highest authority and it is referred now and then by the lower courts. There are times when cases arise of the same facts then the counsel may quote the reference of an SC judgement and benefit from the same.
Review means to reconsider. The intensity of the courts of a nation to look at the activities of the authoritative, official, and managerial arms of the administration and to decide if such activities are reliable with the constitution. Activities decided conflicting are proclaimed unlawful and, in this way, invalid and void.
Constitutional Interpretation means if the President refers to the SC for any decision. It is SC's constitutional interpretation that is final and binding. There should be no conflict between the constitution and the opinion of the SC.
QUESTION- ANSWER SESSION
1. What is the difference in the exercise of power by the SC under art 142(1) and the power to take Suo moto cognizance?
Article 142(1) clearly says that the SC may in its jurisdiction take measures for complete justice for every wronged person. For example- The government had banned liquor shops in radius of 500 metres of highways. The SC decided that liquor ban in 500 m of the highway is one of the major reasons that the drink and drive cases had decreased.
Under Articles 129 and 142 of the Constitution, the Supreme Court has been vested with the capacity to rebuff for contempt of Court including the ability to rebuff for contempt of itself. If there should arise an occurrence of contempt other than the disdain alluded to in Rule 2, Part-I of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, the Court may make a move (a) Suo moto, or (b) on a request made by Attorney General, or Solicitor General, or (c) on an appeal made by any individual, and on account of a criminal hatred with the assent recorded as a hard copy of the Attorney General or the Solicitor General.
2. The inherent jurisdiction of the SC seems to be a grey area with very less literature on it to read about. What is your say?
There is no limit of power to the SC whether it be under Article 142 etc. There are times when the SC will call a matter and explicitly state that they will decide that particular matter. The SC can also be approached by way of PIL for personal benefit or benefit of the public. There all this refers to the fact that the powers of the SC are unlimited.