The Union Judiciary — Supreme Court, Jurisdiction, Independence

Articles 124 to 147 of the Constitution of India establish the Supreme Court of India, prescribe how its Judges are appointed and removed, define every kind of jurisdiction it can exercise, and lay down the structural protections that keep it independent of the Executive and the Legislature. Read together, this Chapter is the constitutional charter of the apex court — the institution that interprets the Constitution of India, declares the law of the land under Article 141, and does complete justice between the parties under Article 142. The President's role at the appointment stage links the Chapter to the Union Executive, while the removal procedure under Article 124(4) draws in the special-majority machinery of the Union Legislature.

For the judiciary aspirant, the chapter is unusually integrated. Article 124 cannot be read without Article 217 (which mirrors its appointment scheme for the High Courts); Article 136 cannot be read without Article 226; Article 142 cannot be read without Article 32, the cornerstone of the right to constitutional remedies. The Supreme Court itself has woven these threads together through three watershed decisions — the Second Judges case (1993), the Third Judges case (1998), and the NJAC judgment (2016) — and through a steady stream of cases on Article 141, Article 142 and Article 143. The discussion below follows the order of the Articles, but flags the leading authorities at every turn.

Composition and the appointment of Judges — Article 124

Article 124(1) constitutes the Supreme Court of India of a Chief Justice of India and, until Parliament prescribes a larger number, not more than seven other Judges. Parliament has progressively raised the strength; the original ceiling has long since ceased to bite. Clause (2) requires every Judge of the Supreme Court to be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts as the President may deem necessary, with the further requirement that the Chief Justice of India shall always be consulted in the appointment of any Judge other than the Chief Justice himself.

Clause (3) prescribes the qualifications: the candidate must be a citizen of India and either (a) a Judge of a High Court for at least five years, (b) an advocate of a High Court for at least ten years, or (c) in the opinion of the President, a distinguished jurist. The expression "High Court" in Cl. (3) includes the Supreme Court itself for the purpose of computing advocacy experience — otherwise an advocate who had practised solely in the Supreme Court could never be elevated. Clause (6) prescribes the oath set out in the Third Schedule, and Clause (7) imposes a post-retirement bar: no person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.

The collegium — what "after consultation with" really means

The single most contested phrase in Article 124(2) — a phrase whose interpretation has driven the agenda of the chapter on landmark constitutional cases for four decades — is "after consultation with". The earlier consensus, set out by the seven-Judge majority in S.P. Gupta v. Union of India (the First Judges case, AIR 1982), was that consultation does not mean concurrence; the executive's view would prevail in case of conflict. That position was overturned by a nine-Judge Constitution Bench in Supreme Court Advocates-on-Record Association v. Union of India (the Second Judges case, 1993), which held that consultation "would almost mean" concurrence and that, in case of conflict, the view of the Chief Justice of India would have primacy. The Court further laid down that no appointment to the Supreme Court or any High Court could be made unless it was in conformity with the opinion of the Chief Justice of India.

In 1998, the President made a reference under Article 143 seeking clarification on the consultative process. The nine-Judge Bench in Re Special Reference No. 1 of 1998 (the Third Judges case) refined the Second Judges position into the modern collegium: the opinion of the CJI must be formed in consultation with a collegium comprising the CJI and the four senior-most Judges of the Supreme Court; views are to be reduced to writing; if two or more members dissent, the CJI must not persist with the recommendation; and merit is the predominant consideration, though combined seniority on an all-India basis must be given weight.

The NJAC judgment — collegium reaffirmed as basic structure

In 2014, Parliament enacted the Constitution (Ninety-ninth Amendment) Act and the National Judicial Appointments Commission Act, replacing the collegium with a six-member NJAC consisting of the CJI as chairperson, two senior-most Judges of the Supreme Court, the Union Minister in charge of Law and Justice, and two eminent persons. A five-Judge Constitution Bench struck both down in Supreme Court Advocates-on-Record Association v. Union of India (2016) — the NJAC judgment. The majority held that giving the political executive a vote in judicial appointments and locating eminent-person nominations in a committee that included the Prime Minister and the Leader of Opposition impaired the primacy of the judiciary and therefore violated the independence of the judiciary, which is part of the basic structure of the Constitution. (For the genesis of the basic-structure test see the chapter on the basic structure doctrine.) Chelameswar J. dissented. The pre-amendment collegium was revived; the Memorandum of Procedure has since been the subject of continuous negotiation between the Government and the Court.

Removal — Article 124(4) and the Judges (Inquiry) Act

A Judge of the Supreme Court can be removed only by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members present and voting, on the ground of proved misbehaviour or incapacity. Clause (5) empowers Parliament to regulate the procedure; the Judges (Inquiry) Act, 1968 read with the Judges (Inquiry) Rules, 1969 provides the machinery. The Supreme Court in Sarojini Ramaswami v. Union of India (1992) held that the Inquiry Committee under the Act is statutory in character but is not a tribunal for the purpose of Article 136. Misbehaviour is a vague and elastic word; mere error of judgment, however gross, will not amount to misbehaviour, as held in C.K. Daphtary v. O.P. Gupta (AIR 1971).

Salary, acting and ad hoc Judges — Articles 125 to 128

Article 125 provides for salaries determined by Parliament by law and, until so determined, as specified in the Second Schedule; the proviso protects privileges, allowances and pensions from being varied to a Judge's disadvantage after appointment. The salaries received by High Court and Supreme Court Judges are taxable as "salaries" under the Income-tax Act though the Judges are constitutional functionaries, as held in Justice Deoki Nandan Agarwala v. Union of India (1999).

Article 126 lets the President appoint an Acting Chief Justice when the office of CJI is vacant or the CJI is unable to perform the duties of office; here the President need not consult anybody, unlike under Article 124(2). Article 127 enables the appointment of ad hoc Judges of the Supreme Court from among High Court Judges qualified for elevation, when there is no quorum of permanent Judges. Article 128 permits retired Supreme Court or High Court Judges (qualified for the Supreme Court) to sit and act as Judges of the Supreme Court with the President's prior consent and the person's own consent.

Court of record and contempt — Articles 129, 130

Article 129 declares the Supreme Court a court of record with all the powers of such a court, including the power to punish for contempt of itself. Articles 129 and 215 do not confer fresh contempt jurisdiction; they recognise a pre-existing inherent power, as the Court explained in Supreme Court Bar Association v. Union of India (1998). Crucially, the jurisdiction under Article 129 is independent of the Contempt of Courts Act, 1971 — and the Act cannot denude or restrict it, as held in Rajeshwar Singh v. Subrata Roy Sahara (2014). Under Article 129 read with Article 142, the Supreme Court may issue postponement orders restraining publication of pending-trial details where prejudicial publicity threatens the right to a fair trial, on the test propounded in Sahara India Real Estate Corporation Ltd. v. SEBI (2012).

Article 130 permits the Supreme Court to sit in Delhi or in such other place or places as the Chief Justice of India may, with the approval of the President, appoint. It is enabling, not mandatory; no court can direct the CJI or the President to set up benches outside Delhi (Union of India v. S.P. Anand, 1998).

Original jurisdiction — Article 131

Article 131 vests in the Supreme Court an exclusive original jurisdiction over disputes (a) between the Government of India and one or more States, (b) between the Government of India and any State or States on one side and one or more other States on the other, or (c) between two or more States, provided the dispute involves a question on which the existence or extent of a legal right depends. The proviso excludes disputes arising out of pre-Constitution treaties or instruments that themselves exclude that jurisdiction.

The jurisdiction is structural — it lets the apex court adjudicate federal disputes without forcing one constituent of the federation to sue another in its own High Court. The conditions are tight. The dispute must be between the constituent units; private litigants are excluded, and a statutory corporation is not a "State" under Article 131 (State of Bihar v. Union of India, AIR 1970). The dispute must involve a legal right enforceable in a court of law — political rights are outside the door (State of Karnataka v. Union of India, AIR 1978) — and the units must be acting in their constitutional capacity, not merely as traders, employers or contracting parties.

The legal-right requirement is generously read. It covers the validity of a Union or State law, the scope of legislative competence in Centre-State legislative relations under Schedule VII, the constitutionality of action under Article 356 in the chapter on emergency provisions, and the interpretation of constitutional provisions touching the governmental powers of the parties. Once a dispute clears these gates, the relief is not confined to a mere declaration — Article 142 enables the Supreme Court to mould any order necessary to do complete justice, as the Court clarified in State of Rajasthan v. Union of India (AIR 1977). Importantly, a State legislation that seeks to nullify a decree passed by the Supreme Court under Article 131 is itself unconstitutional, as held in State of Tamil Nadu v. State of Kerala (2014) and reaffirmed in Re Punjab Termination of Agreement Act, 2004 (2017).

Article 131 is, however, subject to the rest of the Constitution. Article 262 read with Section 11 of the Inter-State River Water Disputes Act, 1956 ousts the Supreme Court's jurisdiction over inter-State water disputes referable to a tribunal — even if the dispute is one between the Centre and a State.

Appellate jurisdiction — Articles 132 to 134A

The appellate jurisdiction of the Supreme Court falls into three branches: appeals on substantial questions of constitutional interpretation under Article 132, civil appeals under Article 133, and criminal appeals under Article 134. Article 134A, inserted by the 44th Amendment, prescribes the procedure for the High Court to issue or refuse a certificate under Articles 132, 133 and 134.

Article 132 lets the Supreme Court hear an appeal from any judgment, decree or final order of a High Court — civil, criminal or other — if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. "Substantial" does not mean a question of general importance; it means a question on which there is a difference of opinion. A question already settled by Supreme Court precedent is not substantial; a new interpretation suggested to a constitutional provision is. Article 133 covers civil appeals where the High Court certifies a substantial question of law of general importance and that the question needs to be decided by the Supreme Court. Article 134 deals with criminal appeals as of right (death sentence in reversal of acquittal, withdrawal of trial to High Court resulting in death sentence) and on certificate.

Special leave to appeal — Article 136

Article 136 is the apex court's most distinctive jurisdiction. It empowers the Supreme Court, in its discretion, to 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, except those relating to the Armed Forces. It does not confer a right of appeal on any party; it confers a discretionary power on the Court (Ashok Nagar Welfare Association v. R.K. Sharma, 2002) and is exercisable independently of any statutory limit on appeals. The conclusiveness or finality given by a statute to any decision of a court or tribunal cannot deter the Supreme Court from exercising this jurisdiction (Dhakeswari Cotton Mills Ltd. v. Commr. of I.T., 1955).

The jurisdiction is described in the cases as inherent, extraordinary and plenary, exercisable to meet the pressing demand of justice. Yet the Supreme Court has imposed self-restraints upon its own exercise: special leave is granted sparingly, in exceptional cases where special circumstances are shown to exist or grave injustice has been done (Pritam Singh v. The State, 1950). The classical caution sounded in N. Suriyakala v. A. Mohandoss (2007) is that under the constitutional scheme the High Court was meant to be the last court in ordinary cases; if the Supreme Court entertained all and sundry appeals it would soon be flooded and unable to deal with the constitutional and jurisprudential questions for which it was really designed. Acting under Article 136 the Court is not only a court of law but also a court of equity, and may mould the relief in the facts of the case (Employees' State Insurance Corpn. v. Jardine Henderson Staff Association, 2006).

Review and the curative petition — Article 137

Article 137 empowers the Supreme Court, subject to any law made by Parliament or any rule made under Article 145, to review any judgment pronounced or order made by it. The review is not a rehearing of the appeal (Devender Pal Singh v. State, NCT of Delhi, 2003); it is an exceptional remedy. The grounds in civil cases are essentially those analogous to Order XLVII Rule 1 CPC. In P.N. Eswara Iyer v. Registrar, Supreme Court of India (1980), a Constitution Bench held that the power to review under Article 137 is wide and applies in all proceedings, although in criminal review the Court has insisted that the error must result in a miscarriage of justice (Vikram Singh v. State of Punjab).

Beyond review the Supreme Court has, by judicial innovation, evolved the curative petition. In Rupa Ashok Hurra v. Ashok Hurra (2002), the Court reasoned that to prevent abuse of its process and cure a gross miscarriage of justice, it may reconsider its own final judgment in exercise of its inherent power, even after a review petition has been dismissed. The petitioner must aver that the grounds were taken in the review and that the review was dismissed by circulation; the curative petition must be certified by a Senior Advocate; it is first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, and is heard only if a majority concludes that hearing is necessary. The doctrine of ex debito justitiae applies only where the order was passed without notice or has the effect of eroding public confidence in the justice delivery system, as the Court reiterated in Ashiq Hussain Faktoo v. Union of India (2016). The procedure has now been codified in Order XLVII of the Supreme Court Rules, 2013.

Enlargement, transfer and writs — Articles 138 to 140

Article 138(1) permits Parliament by law to enlarge the Supreme Court's jurisdiction over any matter in the Union List under the scheme of distribution of legislative powers. Section 38 of the Advocates Act, 1961, conferring appellate power on the Supreme Court in disciplinary matters, is a familiar illustration. Article 138(2) permits enlargement on subjects outside the Union List by special agreement between the Union and a State, ratified by Parliamentary law; the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 was passed under this clause.

Article 139 empowers Parliament to confer on the Supreme Court the power to issue directions, orders or writs — including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari — for purposes other than the enforcement of fundamental rights, which are already covered by Article 32. The five writs available under Articles 32 and 226 occupy a separate chapter, but Article 139 keeps the door open for Parliament to extend the writ jurisdiction of the Supreme Court to non-fundamental-rights contexts as well.

Article 139A enables the Supreme Court, on its own motion or on application by the Attorney General or a party, to withdraw to itself cases pending before one or more High Courts and the State Judiciary where the same or substantially the same questions of law of general importance are involved, decide them, and (under the proviso) return the cases to the originating High Courts for disposal in the light of its judgment. Clause (2) lets the Supreme Court transfer any case, appeal or proceeding from one High Court to another for the ends of justice. Article 139A does not whittle down the existing powers under Articles 136 and 142, as the Court reminded us in Union Carbide Corporation v. Union of India (1991). Article 140 lets Parliament confer such ancillary powers on the Supreme Court as may be necessary or desirable to enable it to exercise the jurisdiction conferred by or under the Constitution more effectively.

Article 141 — the law declared by the Supreme Court

Article 141 declares that the law declared by the Supreme Court shall be binding on all courts within the territory of India. This is the constitutional anchor of the doctrine of binding precedent — what English law calls stare decisis. Three distinctions are central to the exam-aspirant's reading.

Ratio versus obiter. Only the ratio decidendi binds; general observations and casual or passing expressions do not (Orient Paper and Industries Ltd. v. State of Orissa, AIR 1991; Divisional Controller, KSRTC v. Mahadeva Shetty, 2003). The ratio is the principle on which the case is decided, distinct from the relief finally granted (Sanjay Singh v. U.P. Public Service Commission, 2007). Obiter dicta of the Supreme Court are not binding under Article 141 but, coming from the highest tribunal, carry considerable persuasive weight, as the Court noted in Oriental Insurance Co. Ltd. v. Meena Variyal (2007).

Per incuriam and sub silentio. A decision rendered in ignorance of a binding precedent of its own or of a coordinate or higher Bench, or in ignorance of a statute or rule having the force of law, is per incuriam and is not binding (Central Board of Dawoodi Bohra Community v. State of Maharashtra, 2005). A decision is sub silentio when the particular point of law is neither perceived nor consciously determined by the court, in which event it does not form part of the ratio (State of U.P. v. Synthetics and Chemicals Ltd., 1991).

The Supreme Court is not bound by its own decisions. The words "all courts" in Article 141 do not include the Supreme Court itself, so it can depart from its own previous decision when satisfied of its error (Bengal Immunity Co. v. State of Bihar, 1955). A Bench of co-equal strength cannot, however, overrule the decision of an earlier Bench of co-equal strength — it must refer the matter to a larger Bench (Union of India v. Godfrey Phillips India Ltd., 1985). Three-Judge Benches are bound by Constitution Bench decisions; smaller Benches are bound by larger ones. The doctrine of precedent does not apply to an order rejecting an SLP without reasons (Hari Singh v. State of Haryana, 1993). When the Supreme Court declares the law, it becomes the law of the land regardless of whether the parties were before it; courts and authorities are bound to follow it under Article 141 read with Article 144, even where a circular or statutory provision points the other way (Commissioner of Customs, Calcutta v. Indian Oil Corpn. Ltd., 2004).

Article 142 — complete justice

Article 142(1) empowers the Supreme Court, in the exercise of its jurisdiction, to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. Such decrees and orders are enforceable throughout the territory of India in such manner as may be prescribed by Parliament or, until then, by Presidential order. Clause (2) empowers the Court to secure the attendance of persons, the production of documents, and the investigation or punishment of any contempt of itself.

The plenary nature of Article 142 has been spelled out repeatedly. The directions issued under it form the law of the land in the absence of substantive law covering the field and "fill the vacuum" until the legislature acts (Vineet Narain v. Union of India, 1998). The two governing parameters are "larger interest of administration of justice" and "preventing manifest injustice" (Nidhi Kaim v. State of Madhya Pradesh, 2017). The phrase "cause or matter" must not be narrowly construed; the power has been deliberately left elastic to be moulded to the situation (Union Carbide Corporation v. Union of India, 1991; Delhi Development Authority v. Skipper Construction Co., 1996).

But the power is not unbridled. The Supreme Court will not pass an order under Article 142 that would supplant a substantive statutory provision or contradict an express statutory bar (Supreme Court Bar Association v. Union of India, 1998). It is jurisprudentially fundamental that complete justice means justice according to law, and the Court will not perpetuate an illegality (Secretary, State of Karnataka v. Umadevi (3), 2006). The power has been used to mould relief in service matters, to dissolve marriages that have become irretrievably broken (Satish Sitole v. Ganga, 2008), to transfer prisoners between jails, to extend the benefit of a judgment to a non-party where the interests of justice so require, and to recall earlier orders.

One Article 141/142 distinction matters for examiners. Directions issued under Article 142 to do proper justice to the parties before the Court, and reasons given for exercising such power, do not constitute binding precedent under Article 141; the High Courts cannot extend the same relief to others by relying on the Article 142 order (State of Jharkhand v. Bijay Kumar, 2008; State of U.P. v. Neeraj Awasthi, 2006). Other courts do not have a power similar to Article 142, and any attempt to follow its exercise would lead to incongruous results (Indian Bank v. ABS Marine Products (P) Ltd., 2006).

Article 143 — advisory jurisdiction

Article 143(1) empowers the President, where it appears that a question of law or fact has arisen or is likely to arise that is of such a nature and public importance that it is expedient to obtain the opinion of the Supreme Court, to refer the question to the Court; the Court "may" report its opinion. The use of "may" is significant — the Court is not bound to answer, and has on occasion declined to do so. Clause (2) deals with disputes excepted from Article 131 by the proviso (pre-Constitution treaties etc.); on a Clause (2) reference the Court "shall" report its opinion.

The references made under Article 143 since 1950 illustrate its breadth: the constitutionality of an existing law (In Re Delhi Laws Act, 1912, 1951); the constitutionality of a Bill (In Re Kerala Education Bill, 1958); the implementation of an international agreement (In Re Berubari Union, 1960); the respective jurisdictions of the legislature and superior courts in contempt matters (Keshav Singh's case, 1965); the powers of an inter-State water disputes tribunal and the legislative competence of a State to undo such a tribunal (In Re Cauvery Water Disputes Tribunal, 1993); the consultative process for appointment of Supreme Court and High Court Judges (In Re Special Reference No. 1 of 1998); and the reconstitution of the Gujarat Legislative Assembly after dissolution (In Re Special Reference No. 1 of 2002). What the President cannot do under Article 143 is ask the Court to revise its own decided judgment — the advisory jurisdiction is not an appellate jurisdiction over the Court itself, as the Cauvery reference clarified.

Article 144 — civil and judicial authorities to act in aid

Article 144 commands all authorities, civil and judicial, in the territory of India to act in aid of the Supreme Court. It is the operational complement of Article 141: while Article 141 binds courts to the law declared by the Supreme Court, Article 144 enjoins all such courts and other civil authorities to assist in enforcing the Court's orders, decrees and directions (Asstt. Collector of Central Excise v. Dunlop India Ltd., 1985). Refusal to comply with a decree of the Supreme Court — whether in a contempt context or in execution of a federal-dispute decree under Article 131 — has been treated as both contempt and a violation of Article 144 (State of Haryana v. State of Punjab, 2004).

Rules, officers and interpretation — Articles 145 to 147

Article 145 empowers the Supreme Court, with the President's approval, to make rules for regulating its practice and procedure — including rules on appeals, review, bail, costs, summary determination of frivolous appeals and the rest. Two limits constrain the rule-making power: it is subject to laws made by Parliament, and the rules cannot override the Constitution (Prem Chand Garg v. Excise Commr., AIR 1963).

Clause (3) of Article 145 prescribes the minimum bench strength: any case involving a substantial question of law as to the interpretation of the Constitution, and any reference under Article 143, must be heard by a Bench of not less than five Judges — the Constitution Bench. Where a smaller Bench, in the course of an appeal, finds that a substantial constitutional question is involved, it must refer the question for opinion to a Constitution Bench (proviso). Clauses (4) and (5) require that no judgment be delivered save in open court and no judgment be pronounced save with the concurrence of a majority of the Judges present at the hearing — a dissenting Judge is, however, free to deliver a dissenting judgment.

The Supreme Court, sitting in Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005), explained why the Court ordinarily sits in Divisions: while the ideal would be that the entire court should sit in every case (as the U.S. Supreme Court does), the volume of work in India makes this impossible. Bench strength is fixed by the Chief Justice on the basis of the nature of the case, statutory mandates, and the need for consistency. In exercise of Article 145, the Supreme Court has framed the Supreme Court Rules, 2013.

Article 146 deals with administrative autonomy: appointment of officers and servants of the Supreme Court is by the Chief Justice of India or such other Judge as he may direct (the proviso permits the President to require, by rule, that no person not already attached to the Court be appointed save after consultation with the UPSC). Their conditions of service are governed by rules made by the Chief Justice (with Presidential approval where pay, allowances, leave or pensions are concerned). The administrative expenses of the Supreme Court are charged on the Consolidated Fund of India — the same insulating device used for Judges' salaries — and any fees or other moneys taken by the Court form part of that Fund. Article 147 is an interpretation clause: references in the Chapter (and in Chapter V of Part VI dealing with the High Courts) to a substantial question of law as to the interpretation of the Constitution include questions on the interpretation of the Government of India Act, 1935 and the Indian Independence Act, 1947, and orders made thereunder.

Independence of the judiciary — the structural protections

The independence of the judiciary is not a single Article; it is the cumulative result of a series of design choices in the Chapter. Appointment is insulated from purely political control through the collegium device upheld in the NJAC judgment. Removal is made structurally difficult: only on proved misbehaviour or incapacity, by a special-majority address of both Houses, on a procedure regulated by Parliament. Salaries, allowances, privileges and pensions cannot be varied to a Judge's disadvantage after appointment, and administrative expenses are charged on the Consolidated Fund of India and so are not subject to a vote in Parliament. The post-retirement bar in Article 124(7) prevents former Judges from practising in any court in India. The contempt power in Article 129 protects the Court from interference with the administration of justice. The conduct of a Judge cannot be discussed in Parliament except on a removal motion (Article 121).

Independence is also doctrinal. The Supreme Court has repeatedly affirmed that judicial review of legislative and executive action — anchored in Articles 13, 32, 226, 131, 132, 136 and 141 — is itself part of the basic structure of the Constitution, beyond the reach of constitutional amendment under Article 368. The High Courts are not subordinate to the Supreme Court; both are courts of record, constitutionally independent of each other, although the High Courts exercise an inferior jurisdiction in the context of the appellate routes under Articles 132 to 136 (Tirupati Balaji Developers (P) Ltd. v. State of Bihar, 2004). The Supreme Court has no disciplinary control over High Court Judges, much less the Chief Justice of India over them, as the Court reminded in Indira Jaising v. Registrar General, Supreme Court of India (2003). The institutional architecture of the High Courts and the subordinate judiciary mirrors many of these protections at the State level.

Judicial review, judicial activism and complete justice

Two of the most heavily examined themes in this Chapter are interlinked. The first is the role of the judiciary as interpreter of the Constitution. The Supreme Court is the final arbiter on the interpretation of the Constitution (P. Kannadasan v. State of T.N., 1996); it is the Court's duty to uphold constitutional values and enforce constitutional limitations as the ultimate interpreter (I.R. Coelho v. State of T.N., 2007). The primary function of the judiciary is to interpret the law, declare it, fill gaps and remove obvious lacunae — but it cannot enact provisions in the way the legislature does (P. Ramachandra Rao v. State of Karnataka, 2002). The line between permissible judicial directives and impermissible legislation is real, even if it is sometimes hard to draw.

The second theme is the use of Article 142 to do complete justice — the source of much of what is called judicial activism. The Court has expanded standing through public interest litigation, framed guidelines under Article 141 to bind authorities until the legislature acts (witness the police-encounter guidelines treated as law declared under Article 141 in People's Union for Civil Liberties v. State of Maharashtra, 2014), and used Article 142 to order pollution control, transfer convicts, monitor investigations, dissolve marriages, and grant remedies that no statutory court could have given. The cautionary line, equally insistent, is that all of this must be justice according to law: the Court will not, under Article 142, contradict an express statutory provision or perpetuate an illegality. PIL has also remade the law on standing under Article 32, and a fuller account of that journey appears in the chapter on Article 32 and constitutional remedies.

How the Chapter is examined

Examiners return again and again to a small set of questions. The interpretation of "consultation" in Article 124(2) and the constitutional status of the collegium after the NJAC judgment is a perennial — and is one of the recurring entries in the chapter on landmark cases. The scope of original jurisdiction under Article 131 — and its interaction with Article 262 and the Inter-State River Water Disputes Act — has been a Section A staple ever since the Cauvery and Sutlej-Yamuna disputes. The discretionary nature of Article 136, and its relation to Articles 132 to 134, is often tested through MCQs that ask whether an order refusing special leave attracts the doctrine of merger. Article 141 is tested through ratio-versus-obiter, per incuriam and sub silentio fact patterns. Article 142 is tested through hypothetical fact-situations asking whether the Court can grant relief contrary to statute. Article 143 is tested through the Berubari, Kerala Education Bill and Cauvery references. Reading the Chapter together — as the integrated charter that it is, sitting alongside the chapters on the Parliament and the President and Council of Ministers — is the surest route to handling each of these questions.

Frequently asked questions

Did the Supreme Court strike down the NJAC because the Constitution is silent on the collegium?

No. The Supreme Court in the NJAC judgment of 2016 (Supreme Court Advocates-on-Record Association v. Union of India) struck down the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 because the inclusion of the Union Minister of Law and Justice as an ex-officio member, and of two undefined eminent persons nominated by a committee that included the Prime Minister, impaired the primacy of the judiciary in appointments and therefore violated the independence of the judiciary, which is part of the basic structure of the Constitution. The pre-amendment collegium system was directed to be operative.

Can the Supreme Court pass an order under Article 142 that contradicts a statute?

Generally no. The Supreme Court has held repeatedly that although Article 142 confers a wide and constitutional power to do complete justice, it will not pass an order that supplants a substantive statutory provision or directly conflicts with an express statutory bar. The phrase complete justice means justice according to law (Secretary, State of Karnataka v. Umadevi (3), 2006). The Court can mould relief, exempt parties from the rigour of law in peculiar circumstances, and fill legislative gaps until the legislature acts, but it cannot perpetuate an illegality.

Is an order refusing special leave under Article 136 a binding precedent?

Not on its own. The Supreme Court has held that the doctrine of precedent does not apply to an order rejecting an SLP without reasons; such an order merely indicates that the Court was not inclined to exercise its discretion (Hari Singh v. State of Haryana, 1993). However, if the order refusing leave makes a statement of law, that statement is a declaration of law under Article 141 and binds; and if the order records a finding, that finding binds the parties in subsequent proceedings as a matter of judicial discipline.

Can Article 131 be invoked by a private party against a State?

No. Article 131 is confined to disputes between the constituent units of the federation — the Union and one or more States, or two or more States. The Supreme Court has consistently held that suits to which a citizen, statutory corporation or other private body is a party do not fall within Article 131, even if the State is also a party (State of Bihar v. Union of India, AIR 1970). Such suits must be filed in the ordinary civil courts. The enlarged definition of State in Article 12 does not extend to Article 131.

What is a curative petition and when can it be filed?

A curative petition is a judicial innovation evolved by the Supreme Court in Rupa Ashok Hurra v. Ashok Hurra (2002) that allows reconsideration of a final judgment after the dismissal of a review petition, in order to prevent abuse of process or cure a gross miscarriage of justice. It must be certified by a Senior Advocate, must specifically aver that the grounds were taken in the review petition, and is first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of. Hearing follows only if a majority concludes that the matter needs hearing. The procedure is now codified in Order XLVII of the Supreme Court Rules, 2013.

How does Article 141 apply when two co-equal Benches of the Supreme Court disagree?

When a Division Bench of two Judges disagrees with the decision of another Bench of the same strength, it cannot overrule that decision; it must refer the matter to a larger Bench (Union of India v. Godfrey Phillips India Ltd., 1985). A three-Judge Bench is bound by a Constitution Bench decision, and a smaller Bench is bound by a larger one. Where there is conflict between authorities of the Supreme Court, the matter should be referred to a larger Bench, as the doctrine of binding precedent requires consistency and certainty in the law declared under Article 141.