February 17, 2020 In Uncategorized


As India is a Quasi Federation, powers are divided between Union and State Governments. The Hon’ble Supreme Court being the federal Court of India acts as a final authority to see the division of powers as specified in the Constitution of India (Constitution) maintained by both Union and State governments.  

The Supreme Court exercises appellate and advisory powers and its jurisdiction may be divided into 3 categories namely: 

  • Original Jurisdiction
  • Appellate Jurisdiction
  • Advisory Jurisdiction

The Supreme Court in its original jurisdiction, under Article 131 of the Constitution, acts as guardian of the Indian Constitution and has an exclusive jurisdiction in cases between :

  1. Government of India and one or more State(s).
  2. Government of India and any State or states on one side and one or more other states on the other.
  3. Two or more states.

The Appellate Jurisdiction of the Supreme Court extends to all the cases of civil and criminal nature. Being the highest court of the country, all the appeals of such nature from the High Court lies with the Supreme Court. In Civil cases, an appeal can be made to the Supreme Court if :

  1. An appeal shall lie in the Supreme Court from any Decree, Judgement or Final Order in Civil Proceedings if:  
    • The case involves substantial question of law of general importance;
    • In the opinion of the High Court the said question of law needs to be decided by the Supreme Court.
  2. Where such question of law as to the interpretation of the Constitution has been wrongfully decided.
  3. Unless the Parliament provides, no appeal can lie with the Supreme Court from the Judgement, Order Or Decree by one Judge of the High Court.

In Criminal Cases, an appeal can be made to the Supreme Court if:

  1. Any Judgement, Final Order or Sentence in a criminal Proceedings from any High Court if the High Court has:
    • On appeal, reversed an order of acquittal of the accused and sentenced him to death.
    • Withdrawn for trial before itself from a subordinate court and has convicted the accused and sentenced him to death.
    • Any other case which is fit for appeal in the Supreme Court subject to the rules of the Court
  2. The Parliament may by law confer further powers on the Supreme Court to entertain and hear appeals.

As in criminal cases, it is necessary that an opportunity of fair trial is given to the accused/ convict to prove his innocence beyond reasonable doubt. The law recognises the principle of natural justice of audi alteram partem which means “listen to the other side” or in other words, the other party should be heard. It is a precedent law that, if there is a minute possibility of the accused being innocent he/she should be provided with that last opportunity in the highest court to prove his innocence.

Finally, the Advisory Jurisdiction of the Supreme Court, under Article 143, empowers the President to consult Supreme Court:

  • On a question law or fact, which is of public importance and has arisen or is likely to arise; or,
  • When the President refers a dispute for the opinion of the Supreme Court.

Furthermore, all these matters can be filed in the Supreme Court only through an Advocate on Record on any working day of the court. However, in certain exceptional cases matters may be listed or heard by a special bench during vacation of the Court. As the highest court of the country the Supreme Court does not hear each and every petition made to it rather only a certain number of petitions are entertained, namely:

  • Special Leave Petition under Article 136 where the Supreme Court in its discretion may allow Special Leave to appeal from any Judgment, Decree, Determination, Sentence or Order in any cause or matter passed or made by any Tribunal in the Country but will not include any Tribunals of the Armed Forces.
  • Appeals from any Judgment, Final Order or Decree
    • Appeals in Civil Matters (Article 133)
    • Appeals in Criminal Matters (Article 134)
  • Writ Jurisdiction where the Supreme Court can issue five main writs such as habeas corpus, prohibition, mandamus, certiorari and quo-warranto for enforcement of fundamental rights as given under part III of the Constitution.
  • Public Interest Litigation for the matters of public importance.
  • Suo Moto cognizance by the Court itself.
  • Review Petition where no appeal has been preferred.
  • Curative Petition where review petition has been dismissed.

The importance of Supreme Court litigation will always be there as the Supreme Court is the source of settlement of various important issues. There have been many cases where Supreme Court litigation has played a major role in deciding the dispute and maintaining harmony in the society. Some of such examples are:

  • Shayara Bano v. Union of India, 2017 or commonly known as Triple Talaq case:  In this case Talaq-e-bidat which gives the husband right to divorce his wife without her consent by simply uttering the word “Talaq” thrice in one sitting was examined by the Supreme Court. Also the practise of Nikah Halala, where if the divorced couple wants to remarry, the divorced wife would have to marry a second husband and consummate the marriage and only after obtaining a divorce from her second husband she could marry her first husband. It was held by the Hon’ble Supreme Court, with a majority of 3:2, that the practise of Talaq-e-bidat was unconstitutional and not an essential practise of Islamic religion. By this judgment the Supreme Court had made the practice of instant Triple Talaq punishable with maximum of three years imprisonment and a fine, but the offence has been allowed to be compounded(mutually settled).
  • M Siddiq v. Mahant Suresh Das, 2019 or as commonly known as Ram Janam Bhumi case or Ayodhya case stating that the dispute between the parties as held by the Allahabad High Court was upheld. The Judgement dealt with additional issues of whether (a) dividing the Ayodhya land title between the Sunni Waqf Board, Nirmohi Akhara and Ram Lalla was valid?; (b) the suits instituted by the Nirmohi Akhara as a rightful manager of Ram Janmabhoomi and suit instituted by Uttar Pradesh Sunni Central Board of Waqf for claiming possession of the mosque valid or barred by limitation; and (c) Is Ram Janmabhoomi a juristic entity, or is independent of the presence of idols? A Special Bench of 5 judges headed by Hon’ble Chief Justice of India, Mr. Ranjan Gogoi, hearing the matter on a day to day basis awarded the title to the deity, Shri Ram Virajman and also directed the State of UP to grant the Sunni Waqf Board an alternate site at Ayodhya for construction of the mosque.

It is important to mention here that as the Supreme Court mostly works as an appellate court, a litigant should keep in mind that proceedings of the Trial Court play an important part while determining the final order by the Supreme Court. The scope of Supreme Court litigation is not as vast as the Trial Court, which allows all kinds of matters to be heard and decided on facts and law. As the Trial Court is the court of origin and the court where the foundation is laid, the litigants approaching the Supreme Court would be advised to understand that the final result of a Supreme Court litigation has it’s basis in the Trial Court litigation. Hence all the litigants should be very careful in divulging facts, documents and evidence at the Trial Court. Most litigants who approach the Supreme Court come with a misguided concept that they would be able to get a favourable order, when their case has been mishandled in the lower courts but this is not the case.

Sushila Ram Varma                                                                                   
Chief Legal Consultant and Advocate                                

Rishabh Mahipal

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