Highest Court of the Land – Practice Procedures

Dr. M.V.K. Moorthy, Supreme Court Advocate

The Highest Court in our country is called either the Supreme Court of India or the Apex Court of the country. Part-IV of the Constitution of India provides for constitution of the Union, which inter-alia comprises of the most essential three wings of the constitution namely the Parliament of India, the Union Judiciary and the Executive. In addition, the composition of union also includes the constitutional post namely “Comptroller and Auditor General of India”. In terms of the above mentioned composition of union, union judiciary means the establishment of the Hon’ble Supreme Court in terms of article 124 of the Constitution of India. The Highest Court of the land is lead by the Chief Justice of India and other judges in a large number as prescribed by the law enacted by the Parliament. Initially, when the Supreme Court was constituted in the year 1950 that substituted the Federal Court in the then British regime had only 7 judges. Later it was increased 13 in the year 1960, 17 in the year 1977, 20 in the year 1986, 30 in the year 2008 and presently the strength of the Supreme Court is 34 judges.

The Chief Justice of India is appointed by the President of India, who as an appointing authority, also appoints other judges with the consultation of the Chief Justice of India. Every judge of the Supreme Court shall retire on completion of 65 years of age. Any judge of the Supreme Court including the Chief Justice may at any time for reasons recorded in writing submit a communication to the President intending to demit the office. However, on certain small grounds, a judge of the Supreme Court may be removed from office in the manner provided in Clause (IV) of article 124, according to which, the removal by an order of the President passed after an address by each House of the Parliament supported by a majority of total membership of that House and by a majority of not less than 2/3rds of the members of that House present and voting has been presented to the President. In the same session for such removal on the ground of proved misbehavior or in capacity. Clause (V) of article 124, the procedure for the presentation of an address and for the investigation and proof of the misbehavior or in capacity of judge be regulated by the Parliament. A judge of the Supreme Court after retirement shall not appear to plead before any court or before any authority within territories of India.

The Parliament by law shall determine the salaries payable to the judges and such other privileges and allowances. In terms of article 129, the Supreme Court is a court of record and shall have all the powers of such court including the power to punish for contempt that includes both civil and criminal contempt. The seat of the Supreme Court shall be in Delhi. IN terms of article 131, the Supreme Court to the exclusion of any other court should have original jurisdiction in any dispute between the Government of India and one or more states, between the Government of India and any state or states on one side and one or more states on the other side and between two or more states. An appeal lies to the Supreme Court from any judgment, decree or final order of a High Court in India, whether in a civil, criminal or other proceeding, if the High Court certifies under article 134 A that the case involves a substantial question of law as to the interpretation to the Constitution of India. In terms of article 133, the Supreme Court shall be the appellate authority from any judgments, decree or final order in a civil proceeding of a High Court, the case involves a substantial question of law. Similarly, the Supreme Court shall be the final appellate authority from any judgment, final order or a sentence in a criminal proceeding of a High Court in the country. In article 134, one can notice a significant difference between article 133 & 134 and on such noticing, in criminal matters wider jurisdiction has been conferred to exercise appellate power. Therefore, in contrast to civil appellate jurisdiction, the ground in criminal appeal need not be a question of law of general importance and an appeal to the Supreme Court lies as of right in criminal matters.

Article 136, inter-alia conferred powers on the Supreme Court by way of 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. Article 137, confers powers on the Supreme Court to review any judgment pronounced or made by it. Normally, the review petitions are disposed of by way of circulation in chambers. Article 141 of the Constitution of India is the feather in the cap of the Supreme Court as it says that the law declared by the Supreme Court shall be binding on all courts, Tribunals and authorities within the territory of India. One more significant aspect to notice is plenary power conferred on the Supreme Court in exercise of its’ jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it and such decree or order so made shall be enforceable throughout India. This is the appropriate article that provides a last remedy, of course, as of no right, but conditioned and such remedy is called “Curative Petition”. As already indicated, it is a qualified one, namely such petition shall be certified by not less than 5 designated senior advocates as to the scope and maintainability of such petition before it is listed in the Court.

The above is the constitution of the Union judiciary, appointment of judges, conferment of appellate jurisdiction of civil and criminal nature and the binding nature of the law declared by the Supreme Court on every one and finally plenary powers of Supreme Court for doing complete justice, even in curative petitions. Now the important aspect is the Supreme Court rules that would lay down the procedures, process and mechanism for the day-to-day business affairs of the Supreme Court. In terms of article 145, the Supreme Court has got power with the approval of the President to make the rules. The rules on the basis of the necessity and compelling circumstances would change or undergo amendment. I shall deal with only few important rules. According to Order IV, no advocate other than AOR for a party shall appear, plead and address the court in a matter unless he is instructed by the AOR. A senior advocate shall not file a vakalat or act in any court or Tribunal in India, shall not appear without an advocate on record in the court or Tribunal and accept directly from a client any brief or instructions to appear in any court or Tribunal. Any advocate not being a senior advocate on fulfilling the conditions in Rule V be registered in the court as an advocate on record subject to the condition that such person has been on the role of any state Bar Council for not less than 4 years and undergone training for 1 year, with an advocate on record approved by the court and thereafter passed such tests as held by the court from advocates, who apply to be recorded as AOR. Therefore, AOR only is entitled to file the cases in the Supreme Court along with his vakalatnama and not every advocate.

The filing of the petitions, size of the paper and fairly and legibly typewritten, lithographed or printed on one side of standard A4 size paper maintaining quarter margin, consisting of paragraphs and pagination.

Another. important aspect of the Supreme Court rules is the requirement of Court Fees on the Special Leave Petitions of both civil and criminal categories. The recent amendment of 2014 that had taken place, to the Supreme Court rules is increase in the court fees structure. Such amendment, it must be placed on record as a hole worthy in the annals of the AIFTP, when the author of this article was the South Zone Chairman during the period 2012-13 and in 2014-15 as Deputy President suggested to the Supreme Court for enhancement in the court fees in the light of the increased cost of servicing provided by the Supreme Court and on the basis of a communication addressed by him, the Hon’ble Supreme Court amended the court fees structure to say Rs. 1,500/- for petition other than the petitions mentioned in Part IV of the schedule and Rs.5 ,000/- at the time of institution for petitions falling in Part IV of the schedule. The Part IV comprising of direct tax matters, indirect tax matters, company law, MRTP, TRAI, SEBI, IDRAI & RBI, Arbitration matters, Mercantile Laws, Commercial transactions including banking, simple money and mortgage matters, matters relating to leases, government contracts and contracts by local bodies and state Excise trading in liquor, Privileges, Licenses, Distilleries and Braveries. In Part IV the slab has been fixed for court fees namely after notice stage up to the  value of Rs.1.00 lac, Rs. 5,000/- where after Rs. 1,000/- for every Rs. 50,000/- or part thereof in excess of Rs. 1.00 lac value till the value reaches Rs.20.00 lacs and Rs. 1,000/- for every Rs.1.00 lac value or part there of exceeding Rs.20.00 lacs. The cap made is Rs.25.00 lacs as a maximum. The first court fee amount of Rs. 5,000/- paid on SLP presentation would be deducted or set off. In criminal SLPs court fees is Rs. 1,500/-. The federation in the maintenance of dignity, majesty and supremacy of the court, made the suggestion. The Hon’ble Supreme Court readily accepted the proposal submitted by the author of this article and made amendments. Servicing cost is expected to commensurate with the cost of index and the value of the services and value addition that the litigant public expects. Therefore, the AIFTP has also proved its’ successful existence with the avowed object of achieving finer standards in every institution and also loyal in its’ duties to the society.

I hope that this article satisfies the simple cherishment of the members of the fraternity to know about the constitution, functioning powers, appellant jurisdiction and rules throwing light on the persons for filing the case, in the Supreme Court and the mode and method and procedures in connection with filing of the petitions and finally the court fees structure to cope up with the increasing service cost in rendition of the multiple services by the Apex Court.