The Supreme Court

Article 124(3), qualifications. A citizen of India who has been for at least five years a High Court judge, or for at least ten years an advocate of a High Court, or is "in the opinion of the President, a distinguished jurist".

Article 124(4), removal. A judge is removed only by an order of the President passed after an address by each House, supported by a majority of the total membership of that House and not less than two-thirds of the members present and voting, presented in the same session, and only for "proved misbehaviour or incapacity". Article 124(5) lets Parliament regulate the procedure. See [Transfer and Removal of Judges].

Articles 125 to 128 and 130. Salaries are determined by Parliament, and neither privileges, allowances nor pension may be "varied to his disadvantage after his appointment" (article 125). Article 126 provides for an acting Chief Justice, article 127 for ad hoc judges drawn from the High Courts when there is no quorum, and article 128 for retired judges, who sit only if they consent. Article 130 fixes the seat at Delhi "or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint."

Article 129. The Supreme Court "shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself." Why that power is inherent rather than conferred is worked out in [Complete Justice: Article 142].

The jurisdictions, article by article

Article 131, original jurisdiction. The Supreme Court has, "to the exclusion of any other court", original jurisdiction in disputes between the Government of India and one or more States, between the Union and one or more States on one side and other States on the other, and between two or more States, "if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends". Two limits are easy to miss. The dispute must be about a legal right, so a political grievance will not do. And by the proviso the jurisdiction does not reach a dispute arising out of a pre-Constitution treaty, agreement, covenant, engagement or sanad still in operation. See [Union and State Disputes in Court].

Article 132, appeal on a constitutional question. An appeal lies from any judgment, decree or final order of a High Court, "whether in a civil, criminal or other proceeding", if the High Court certifies under article 134A that the case involves "a substantial question of law as to the interpretation of this Constitution."

Article 133, civil appeals. An appeal lies in a civil proceeding if the High Court certifies that the case involves "a substantial question of law of general importance" and that "in the opinion of the High Court the said question needs to be decided by the Supreme Court." Both limbs are required. By clause (3) no appeal lies from the decision of a single judge of a High Court unless Parliament provides otherwise.

Article 134, criminal appeals. Two grounds are automatic and need no certificate: where the High Court "has on appeal reversed an order of acquittal of an accused person and sentenced him to death", or has withdrawn a case from a subordinate court, tried it itself, convicted and sentenced the accused to death. The third ground is a certificate that the case "is a fit one for appeal to the Supreme Court". Article 134(2) lets Parliament confer further criminal appellate powers.

Article 134A, the certificate. Inserted by the Forty-fourth Amendment. A High Court passing a judgment of the kind described in articles 132(1), 133(1) or 134(1)(c) must determine the question of a certificate, on its own motion if it thinks fit, or when an oral application is made immediately after the judgment.

Article 135 preserves in the Supreme Court the jurisdiction the Federal Court had, in matters articles 133 and 134 do not reach.

Article 136, special leave. "Notwithstanding anything in this Chapter", the Supreme Court may "in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India." This is the widest appellate power in the Constitution, and the words that make it so are "any" and "in its discretion". No certificate is needed and no category of case is excluded, but nobody has a right to be heard: leave is a matter of grace. The one exception is clause (2), courts or tribunals "constituted by or under any law relating to the Armed Forces."

Article 137, review. Subject to any law made by Parliament and to rules under article 145, the Supreme Court "shall have power to review any judgment pronounced or order made by it." It is not a rehearing; the grounds come from rules made under article 145(1)(e).

Articles 138, 139, 139A and 140. Parliament may enlarge the Court's jurisdiction on Union List matters or by Union and State agreement (article 138), and may confer power to issue the writs for purposes other than the enforcement of fundamental rights (article 139), that enforcement being already covered by article 32. Under article 139A the Court may withdraw and dispose of cases raising the same substantial question of general importance pending before it and one or more High Courts, and may transfer a case from one High Court to another "for the ends of justice". Article 140 lets Parliament confer supplemental powers not inconsistent with the Constitution.

Articles 141 and 144. "The law declared by the Supreme Court shall be binding on all courts within the territory of India." Two words repay attention. "Declared" is wider than "decided", which is why a proposition of law laid down in a judgment binds even where the facts differ. "All courts" does not include the Supreme Court itself, which is why it may depart from its own earlier decisions. Article 144 completes the chain: "All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court." Articles 142 and 143 are treated in [Complete Justice: Article 142] and [Advisory Jurisdiction].

Articles 145 to 147. Article 145 lets the Court make rules with the President's approval on the subjects the article lists, including practice and procedure, the conditions for review, bail, and the summary dismissal of frivolous appeals. Two clauses matter beyond procedure. Article 145(3) requires a minimum of five judges to decide any case involving a substantial question of law as to the interpretation of the Constitution, or to hear a reference under article 143; that is what a "Constitution Bench" is. Article 145(4) and (5) require judgment in open court and by a majority of the judges present, saving a dissenting judge's right to dissent. Article 146 vests appointments of the Court's officers in the Chief Justice and charges its administrative expenses on the Consolidated Fund of India, so they are not voted on by Parliament. Article 147 extends "substantial question of law as to the interpretation of this Constitution" to questions on the Government of India Act, 1935 and the Indian Independence Act, 1947.

Three routes in

What it does NOT mean

Article 136 is not an appeal. It is leave to appeal, refused far more often than granted. Saying "an appeal lies to the Supreme Court under article 136" states the position backwards.

A certificate is not a formality. Under article 133 the High Court must be satisfied of two distinct things, and under article 134A it must apply its mind when the judgment is delivered. Where a certificate is refused, the remedy is a petition under article 136, not an appeal against the refusal.

Article 145(3) is not about important cases. It applies where a substantial question of the interpretation of the Constitution arises, or on an article 143 reference. An important case turning on a statute needs no five judges.

A worked example

Meera is convicted of murder by a Sessions Court and sentenced to life. The High Court, on the State's appeal, converts the sentence to death. She wants to reach the Supreme Court.

Step one, is there an appeal as of right? Not under article 134(1)(a): the High Court did not reverse an acquittal, it enhanced a sentence. Not under 134(1)(b) either: the case was not withdrawn for trial by the High Court. Neither automatic ground applies.

Step two, is there a constitutional question? If she argues that the procedure denied her a hearing on sentence, that raises a question under article 21, and a substantial question of constitutional interpretation may arise. Article 132 is then available if the High Court certifies under article 134A.

Step three, ask for the certificate. Article 134A(b) requires the High Court to determine the question if an oral application is made immediately after the judgment. Meera's counsel must make it then, not months later.

Step four, if the certificate is refused. Article 136 remains. She petitions for special leave, and the Court may grant it whatever the High Court thought of the certificate.

Step five, bench strength and after. If leave is granted and the article 21 point is pressed as constitutional interpretation, article 145(3) requires at least five judges. If judgment goes against her, article 137 permits a review on the grounds the rules under article 145(1)(e) allow, not a second hearing.

Quick revision

• Articles 124 to 147 constitute the Supreme Court. Strength: the Chief Justice and thirty-three other judges, under the Act of 2019. Judges hold office to sixty-five.
• Removal only for proved misbehaviour or incapacity, by an address of both Houses on the special majority in article 124(4).
• The words of article 124(2) that refer to the National Judicial Appointments Commission were struck down in 2015 and are not the operative law.
• Article 129: a court of record, with the power to punish for contempt of itself.
• Article 131: exclusive original jurisdiction in disputes between the Union and States, on a question of legal right; not for pre-Constitution treaties.
• Articles 132, 133, 134: appeals on a certificate under article 134A; constitutional, civil, criminal. Two criminal grounds need no certificate, and both involve a death sentence.
• Article 136: special leave, in the Court's discretion, from any court or tribunal except those under Armed Forces law.
• Article 137: review. Article 141: law declared binding on all courts, not on the Supreme Court itself. Article 144: all authorities act in aid.
• Article 145(3): five judges at least for a substantial question of constitutional interpretation or an article 143 reference. Article 146(3): the Court's expenses are charged on the Consolidated Fund of India.

Test yourself

1. Set out the four kinds of jurisdiction the Supreme Court has, with the article for each.

2. Why is article 136 not an appeal? What follows from that for a litigant?

3. Distinguish article 131 from article 132. Who may invoke each, and against what?

4. When is a Bench of five judges constitutionally required, and when is it not?

5. A bare text of the Constitution says judges are appointed on the recommendation of the National Judicial Appointments Commission. Is that the law? Explain.

6. "The law declared by the Supreme Court shall be binding on all courts." Which two words carry the weight?