The Jurisdiction of the Supreme Court
Supreme Court of India is established by Article 124 of the Constitution which specifies its jurisdiction and powers and enables Parliament to confer further jurisdiction and powers on it.
The Constitution conferred on the Supreme Court original jurisdiction (Articles 32 and 131); appellate jurisdiction both civil and criminal (Articles 132, 133, 134); discretionary jurisdiction to grant special leave to appeal (Article 136) and very wide discretionary powers, in the exercise of its jurisdiction, to pass decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, which shall be enforceable throughout the territory of India in the manner prescribed (Article 142); powers like the power to withdraw any case pending in any High Court or High Courts to itself or to transfer any case from one High Court to another High Court (Article 139) and to review judgment pronounced or order made by it (Article 137).
Conferment of further jurisdiction and powers is left to be provided by Parliament by law (Article 138). Parliament is also enabled to confer further powers on the Supreme Court (Articles 134(2), 139, 140). Article 141 says that the law declared by the Supreme Court shall be binding on all courts within the territory of India and Article 144 directs that all authorities civil and judicial, in the territory of India, shall act in aid of the Supreme Court. It is a Court of record and has all the powers of such a Court including power to punish for contempt of itself (Article 129).
Article 32
Since the jurisdiction of Supreme Court under Article 32 of the Constitution is invoked in these writ petitions, we shall advert to the provisions of Article 32 of the Constitution. It is included in Part III of the Constitution and is quoted hereunder:
“32. Remedies for enforcement of rights conferred by this Part. –
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”
A perusal of the Article, quoted above, shows it contains four clauses.
Clause (1) guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III – fundamental rights.
By clause (2) the Supreme Court is vested with the power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever may be appropriate for the enforcement of any of the rights conferred by Part III.
Without prejudice to the powers of the Supreme Court in the aforementioned clauses (1) and (2), the Parliament is enabled, by clause (3), to empower by law any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). The constitutional mandate embodied in clause (4) is that Article 32 shall not be suspended except as otherwise provided for by the Constitution. Inasmuch as the Supreme Court enforces the fundamental rights by issuing appropriate directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, it may be useful to refer to, in brief, the characterisitics of the writs in general and writ of certiorari in particular with which we are concerned here.
Writs in English Law
In English law there are two types of writs –
(i) judicial procedural writs like writ of summons, writ of motion etc. which are issued as a matter of course; these writs are not in vogue in India and
(ii) substantive writs often spoken of as high prerogative writs like writ of quo warranto, habeas corups, mandamus, certiorari and prohibition etc.; they are frequently resorted to in Indian High Courts and the Supreme Court.
“Historically, prohibition was a writ whereby the royal courts of common law prohibited other courts from entertaining matters falling within the exclusive jurisdiction of the common law courts; certiorari was issued to bring the record of an inferior court into the King’s Bench for review or to remove indictments for trial in that court; mandamus was directed to inferior courts and tribunals, and to public officers and bodies, to order the performance of a public duty. All three were called prerogative writs.”
In England while issuing these writs, at least in theory, the assumption was that the King was present in the King’s Court. The position regarding the House of Lords is described thus, “of the Court of Parliament, or of the King in Parliament as it is sometimes expressed, the only other supreme tribunal in this country.” in Rajunder Narain Rai Vs. Bijai Govind Singh (1836 (1) Moo. P.C. 117). They are discretionary writs but the principles for issuing such writs are well defined. In the pre- constitutional era the jurisdiction to issue the prerogative writs was enjoyed only by three chartered High Courts in India but with the coming into force of the Constitution, all the High Courts and the Supreme Court are conferred powers to issue those writs under Article 226 and Article 32, respectively, of the Constitution.