The Supreme Court's Own Powers: Articles 137 to 147

(2) Subject to any law made by Parliament, the Supreme Court shall, as respects the whole of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of documents, or the investigation or punishment of any contempt of itself.

Article 142(1) is the most discussed power in the Constitution, and a Semester 3 answer should say three things about it.

It is a power to fashion a remedy, exercisable in a cause pending before the Court, so that the Court is not confined to the reliefs an ordinary statute provides.

It is not a power to legislate, and the Court has repeatedly said that it will not use article 142 to do something a statute expressly forbids.

And it exists because the framers had watched a system in which a court could be right and powerless. Module I is full of orders that could not be executed, and section 210 of the Act of 1935 had already provided that all authorities should act in aid of the Federal Court and that its orders should be enforceable everywhere. Article 142(1)'s enforceability clause and article 144 together are that provision, strengthened.

Article 144: all authorities in aid

All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.

That is section 210(1) of the Government of India Act 1935 word for word, and it is the answer to the Cossijurah case a hundred and seventy years later. In 1780 the Government of Bengal sent sepoys to arrest the sheriff who was executing the Supreme Court's process. Article 144 makes that a constitutional impossibility: every civil and judicial authority in India is bound to assist.

Article 143: the advisory jurisdiction

(1) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court, he may refer the question to the Court, which may, after such hearing as it thinks fit, report to the President its opinion.

(2) deals with references about certain pre-Constitution treaties and agreements excluded from article 131, and there the Court shall report its opinion.

Three features distinguish it from ordinary jurisdiction and each is worth a line.

The Court reports an opinion; it does not decide a case. There are no parties in the ordinary sense.

Under clause (1) the Court may decline to answer, and it has declined; under clause (2) it shall report.

And the opinion is not a judgment, so it does not attract article 141 in the same way as a decision in a lis, although it is treated with the greatest respect and is followed in practice.

This is section 213 of the Act of 1935, with the President for the Governor-General.

Article 137: review

Subject to any law made by Parliament and to rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.

The grounds on which review is granted are narrow, and the Supreme Court Rules confine it substantially to the grounds on which a civil court may review a decree: discovery of new and important matter, an error apparent on the face of the record, or any other sufficient reason. It exists because a final court has no court above it, so the only correction available is its own.

Article 139: writs, for other purposes

Parliament may by law confer on the Supreme Court power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for any purposes other than those mentioned in clause (2) of article 32.

Read the last words. The Supreme Court's writ power for fundamental rights comes from article 32(2) and needs no statute. Article 139 is about writs for other purposes, and those depend on Parliament conferring the power. The High Courts, under article 226, need no such statute: their writ power extends to fundamental rights and for any other purpose. That difference between article 32 and article 226 is the subject of two later chapters and is the most examinable comparison in Module III.

Articles 140, 145, 146 and 147

140: Parliament may by law confer supplemental powers on the Supreme Court, not inconsistent with the Constitution, to enable it more effectively to exercise its jurisdiction. Compare section 215 of the Act of 1935.

145: the Supreme Court may, with the approval of the President and subject to any law made by Parliament, make rules of court regulating generally the practice and procedure of the Court, including rules as to persons practising before it, as to procedure for appeals, and as to costs and fees. Clause (3) provides for the minimum number of Judges who are to sit for the purpose of deciding a case involving a substantial question of law as to the interpretation of the Constitution, or for hearing a reference under article 143. Compare section 214 of the Act of 1935.

146: appointments of the officers and servants of the Supreme Court are made by the Chief Justice of India or such other Judge or officer as he directs; their conditions of service are prescribed by rules made by the Chief Justice with the President's approval where they involve expenditure; and the administrative expenses of the Court, including all salaries, allowances and pensions payable to or in respect of its officers and servants, are charged upon the Consolidated Fund of India, fees taken by the Court forming part of that Fund.

The last part matters for the next chapters. Charged expenditure is not submitted to the vote of Parliament. Section 216 of the Act of 1935 had done the same for the Federal Court, and section 228 for the High Courts. It is a financial guarantee of independence, and a student should list it with the guarantees in the chapter on independence.

147: in this Chapter and in Chapter V of Part VI, references to a substantial question of law as to the interpretation of this Constitution include references to a substantial question of law as to the interpretation of the Government of India Act 1935, including any enactment amending or supplementing it, and of any Order in Council or order made under it, or of the Indian Independence Act 1947 or of any order made under that Act.

Article 147 is the reason this book exists. The Constitution says, in terms, that a constitutional question in India may be a question about the Act of 1935 or about the Indian Independence Act 1947, and it is the clearest possible statement that the constitutional history in Module IV is not antiquarian.

A worked example

The Supreme Court, hearing an appeal, finds that the statute gives no adequate remedy and that a High Court in another State has taken the opposite view.

• It may withdraw the other cases to itself under article 139A and settle the question.
• It may pass whatever order is needed for complete justice under article 142(1), and the order is enforceable throughout India.
• Its statement of the law binds every court in India under article 141.
• Every civil and judicial authority is bound to act in aid of it under article 144.
• If the Court later concludes it was wrong, it may review under article 137, or a larger bench may reconsider the point.

Now compare the Supreme Court at Calcutta in 1780, which could give a judgment and watch sepoys stop the sheriff enforcing it. The whole of Module III is the difference between those two lists.

What beginners get wrong

"Article 141 binds the Supreme Court itself." It binds all courts within the territory of India; the Court may depart from its own earlier decisions, ordinarily through a larger bench, and article 137 gives it a power of review.

"Article 142 lets the Supreme Court do anything." It empowers the Court to do what is necessary for complete justice in a cause pending before it. It is not a legislative power and the Court has declined to use it against an express statutory prohibition.

"The Supreme Court's writ jurisdiction comes from article 139." For fundamental rights it comes from article 32(2). Article 139 is about writs for other purposes and requires a law made by Parliament.

"An advisory opinion under article 143 is a binding judgment." It is a report of the Court's opinion to the President. Under clause (1) the Court may decline to answer; under clause (2) it shall report.

Limits and criticism

Two of these articles attract the standing criticism of the Supreme Court and it is worth stating both without taking a side.

Article 142 is said to have been used to do things that belong to the legislature or the executive, on the footing that complete justice required them. Defenders answer that a court which can identify a wrong and cannot remedy it is the court Module I describes, and that the article exists precisely to prevent that.

Article 141 produces a different problem: because everything the Supreme Court says binds every court in India, and because the Court sits in many small benches, the volume of binding law is enormous and not always consistent. The remedies within the system are article 137, larger benches, and article 139A, and a student who names those three has answered the criticism rather than merely repeating it.

Quick revision

• 137: review of its own judgments, on narrow grounds.
• 139: Parliament may confer power to issue writs for purposes other than article 32(2).
• 140: Parliament may confer supplemental powers.
• 141: the law declared by the Supreme Court is binding on all courts in India. From s.212 of the Act of 1935, minus the Privy Council.
• 142: complete justice in a pending cause, enforceable throughout India; and powers as to attendance, discovery and contempt of itself.
• 143: the President may refer a question of law or fact of public importance; the Court may report under clause (1) and shall under clause (2). From s.213 of the Act of 1935.
• 144: all civil and judicial authorities shall act in aid of the Supreme Court. From s.210 of the Act of 1935.
• 145: rules of court, and the minimum bench for constitutional questions and article 143 references.
• 146: officers appointed by the Chief Justice; expenses charged on the Consolidated Fund of India.
• 147: a constitutional question includes a question on the Government of India Act 1935 and the Indian Independence Act 1947.

Test yourself

1. What exactly does article 141 make binding, and on whom? The law declared by the Supreme Court, on all courts within the territory of India. What binds is the proposition of law laid down, not the result between the parties, and the Supreme Court itself is not bound by its own earlier decisions.

2. State the two limits on article 142 that the Supreme Court itself observes. That the power is exercisable for doing complete justice in a cause or matter pending before the Court, and that it is not a power to legislate or to act against an express statutory prohibition.

3. Distinguish article 32(2) from article 139. Article 32(2) gives the Supreme Court power to issue writs for the enforcement of fundamental rights, and it needs no statute. Article 139 allows Parliament by law to confer power to issue writs for purposes other than those in article 32(2). A High Court's power under article 226 covers both without any statute.

4. What is the status of an opinion given under article 143? It is a report of the Court's opinion to the President, not a judgment between parties. Under clause (1) the Court may decline to answer; under clause (2) it is bound to report.

5. What does article 147 provide, and why does it matter to this paper? That references to a substantial question of law as to the interpretation of the Constitution include references to questions about the Government of India Act 1935, enactments amending it, orders under it, and the Indian Independence Act 1947. It matters because it makes the constitutional history of Module IV part of the working law of the Supreme Court rather than background.