S.S.

JAIN SUBODH LAW COLLEGE

MANSAROVAR, JAIPUR

SESSION: 2019-2020
TOPIC: COMPARITIVE ANALYSIS OF
FEDERAL AND SUPREME COURTIN
INDIA
SUBJECT: LEGAL & CONSTITUTIONAL
HISTORY
Submitted to: Submitted by:
Ms Monika Chaudhary Shubhagata Singh
Assistant Professor Semester- I
(Legal & Constitutional History)
1
 DECLARATION

I do hereby that this research title “COMPARITIVE ANALYSIS OF FEDERAL AND

SUPREME COURTIN INDIA” is outcome of the research conducted by me under the
guidance of Ms MONIKA CAUDHARY (Assistant professor of Legal and Constitutional
History) at S.S. Jain Subodh Law College in fulfillment for the award of degree of B.A. L.L.B
at the University of Rajasthan.

I also declare that this work is original except where assistance from other source has been taken
and necessary acknowledgement for the same has been made at appropriate places. Further,
declares that this work has not been submitted either in whole or in part for any degree or
equivalent in any other institution.

SHUBHAGATA SINGH

2
 CERTIFICATE

This is to certify that Shubhagata Singh , student of B.A. L.L.B., 1st Semester of S.S. JAIN
SUBODH LAW COLLEGE, MANSAROVAR, JAIPUR has completed the Legal and
Constitutional History project for the semester on “COMPARITIVE ANALYSIS OF
FEDERAL AND SUPREME COURTIN INDIA” under the guidance of Ms MONIKA
CHAUDHARY, Faculty for Legal and Constitutional History in S.S. Jain Subodh Law College.

Ms MONIKA CHOUDHARY
ASSISTANT PROFESSOR

3
 ACKNOWLEDGEMENT

I express my sincere thanks to my project guide Ms MONIKA CHAUDHARY, Assistant

Professor, Legal and Constitutional History for guiding me right from the inception till the
successful completion of the project.

I sincerely acknowledgement her for extending their valuable support for literate critical reviews
of project and the report and above all the moral she had provided to me with all stages of this
project .

SHUBHAGATA SINGH

1st Semester

4
 INDEX

1. Chapter 1:- Introduction 6

2. Chapter 2:- Composition 7

3. Chapter 3:- Jurisdiction

3.1. Original, Appeallate, Advisory Jurisdiction 8

3.2. Appeals to Privy Council 9

4. Chapter 4:- The Supreme Court of India

4.1. Composition of Supreme Court 10

4.2. Appointment of Supreme Court Judges 11

4.3. Jurisdiction of Supreme Court 11

4.4. Court of Record 11

4.5. Supreme Courts power to punish for its contempt 12

4.6. Initiative towards introducing video recordings of Courts 15

4.7. Independence of Judiciary 15

5. Chapter 5:- Critical Appreciation 17

6. Chapter 6:- Conclusion 20

7. Bibliography 21

5
 CHAPTER 1
INTRODUCTION

India, being one of the biggest countries in the world with a fabulous population has a very strong
judiciary system which is inherent with the structure of the courts and its hierarchy and the judicial
system. This system provides livelihood to huge number of professionals attached with the system
of judiciary in different forms and thus serve the nation with the service. In this essay, the structural
pattern of judiciary system will be narrated with the hierarchical type of courts effectively take
part in the judiciary system and the different personalities engaged in this profession to play
different roles assigned to them.

Consequent to the passing of the Government of India Act, 1935, a federal Government consisting
of Provinces as its component units was formed in India. The Act also contained a provision for
voluntary accession of native Princely States to the Federation. There might arise disputes between
the Centre and the units or between the constituent units themselves in a federal polity, therefore,
a Federal Court1 was established as a supreme tribunal to act as an interpreter and guardian of the
Constitution and to settle the justicable disputes between the Centre and the federating units or
between the units themselves. This Court was formally inaugurated on October 1, 1937, and held
its first sitting on December 6, 1937 at Delhi.

1
Referenced from, https://www.gktoday.in/gk/federal-court_25/amp/ (Visited on November 19, 2019).

6
 CHAPTER 2
COMPOSITION

The Federal Court consisted of a Chief Justice of India and not more than six puisne Judges, all of
them appointed by His Majesty by warrant under the Royal Sign Manual and was to hold office
until the age of sixty five years. The number of Judges of the Federal Court could be inceased on
the presentation of an address by the Legislature to the Governor-General for submission to His
Majesty. A Judge could resign or be removed on the ground of misbehavior or infirmity of mind
or body if the Privy Council on reference by the Crowns recommended. To be qualified for
appointment as Chief Justice of the Federal Court, a person was required to be a Barrister, advocate
or pleader of fifteen years standing.

The qualifications needed for appointment of a Judge of the Federal Court2 were as follows:

1. A person must have been a Judge of the High Court of British India or federating State for at
least five years; or

2. A Barrister or an Advocate of ten years standing; or

3. A pleader in a High Court or Courts for at least ten years.

The salaries, allowances, leave and pensions of the Judges of the Federal court including the Chief
Justice were to be determined by King-in-Council. The court was completely independent of the
federal, provincial, and the State Governments3.

2
Referenced from, https://www.lawctopus.com/academike/criminal-procedure-india/ (Visited on November 19,
2019).
3
Dr. N.V. Paranjape, Indian Legal & Constitutional History.

7
 CHAPTER 3
JURISDICTION

The Federal Court had original, appellate and advisory jurisdiction4:

3.1

(i) Original – Its exclusive original jurisdiction extended over the cases between the federation
and its units. The dispute must relate to existence or extent of a legal right arising out of the
interpretation of the Act or existent of legislative or executive authority vested in the Federation
by the instrument of Accession or an agreement under Part VI of the Act in relation to
administration of a federal law. In the exercise of the original jurisdiction, the Federal Court was
to pronounce a declaratory judgment.

(ii) Appellate - The appellate jurisdiction of the Federal Court extended to the appeals from High
Courts in British India as also the appeals from the High Courts of the federating Provinces. The
High Court concerned should issue a certificate of leave to appeal stating that the case involved a
substantial question of law as to interpretation of the Act or Order in Council there under. Under
certain circumstances, an appeal from a judgment, decree or final order of the High Court could
be taken to the Federal Court even without certificate of the High Court if the subject matter of the
dispute was not less than Rs.50000/- or the value of the property was of the like sum and special
leave to appeal from the Federal Court was obtained.

4
Referenced from, https://www.lawctopus.com/academike/criminal-procedure-india/ (Visited on November 19,
2019).

8
The Appellate jurisdiction of the Federal Court in civil and criminal cases was considerably
extended by the Federal Court (Enlargement of Jurisdiction)Act, 1947.

(iii) Advisory - Under its advisory jurisdiction, the Federal Court could be called upon to answer
any question of law, which might be referred to it by the Governor-General, which in his opinion
was of a vital public importance.

The Federal Court was also a Court of Record. All civil and judicial authorities throughout the
federation were to act in aid of the Federal Court. It was empowered to make rules for its practice
and procedure with the approval of the Governor-General. The law declared by the Federal Court
was binding on all the subordinate courts in British India and the State courts.

3.2

Appeals to Privy Council:

Appeals from the decision of the Federal Court lay to the Privy Council in cases where -

(i) The judgment was given by the Federal Court in exercise of the original jurisdiction without
leave; or

(ii) In any other case, by leave of the Federal Court or special leave to appeal by the Privy Council

However, consequent to the passing of the Abolition of the Privy Council Jurisdiction Act, 1949,
complete judicial autonomy was given to the Indian Judiciary and appeals from the Indian Courts
ceased to be taken to the Privy Council.

The Federal Court functioned until the coming into force of the Indian Constitution, w.e.f. January
26, 1950 when it gave way to the Supreme Court of India. Nevertheless, its contribution to Indian
Judicial system in setting healthy traditions of fair play and Justice has earned it a unique place in
the legal and constitutional history of India5.

5
M.P. Jain, “Outlines of Indian Legal and Constitutional History”.

9
 CHAPTER 4
THE SUPREME COURT OF INDIA

The Supreme Court is considered as a guardian of the Indian Constitution. It is the Apex Court of
judiciary which was to be an arm of the social revolution upholding the equality, the Indian people
has longed for. As a highest Court of union Judiciary the provisions relating to the Supreme Court
are contained in articles 124-147 of the Indian Constitution6.

In a federal Government like India disputes and differences between constituent units regarding
their respective rights and powers are bound to arise and therefore, there must be an independent
and impartial statutory authority to decide these disputes and maintain supremacy of the
Constitution. This function has been assigned to the Supreme Court which is the highest judicial
Court of India.

The Supreme Court also plays the role of the guardian of the Constitution as it protects the
fundamental rights of the citizens as also the civil and minority rights of the people. It is the highest
Court of appeal in civil and criminal cases.

4.1

6
Referenced from, https://www.gktoday.in/gk/supreme-court-of-india_25/amp/ (Visited on November 19, 2019).

10
Composition of the Supreme Court

After the Independence of India, the Constitution of India which came into force on January 26,
1950 provided for the establishment of a Supreme Court at New Delhi in place of the Federal
Court. It is the highest court of the country and consists of a Chief Justice and not more than twenty
five Judges as provided in Article 124 of the Constitution. Prior to 1960, the number of Judges
was limited to only seven. It was raised to thirteen by the Constitution (Amendment) Act, 1977
and presently it is 31 including the Chief Justice of India.

4.2
Appointment of Supreme Court Judges-
The appointment of the Judges of the Supreme Court is made by the President after consultation
with such of the Judges of the Supreme Court and of the High Court as he may deem necessary. A
Judge of the Supreme Court including the Chief Justice shall hold office until he attains the age of
65 years. He may resign his office earlier or may be removed on the ground of misconduct or
incapacity by the President through a vote of special majority of the members of the Parliament,
as provided under Article 124 (4) of the Constitution of India. The Chief Justice may appoint ad
hoc Judges with prior consent of the President to complete the quorum of the Supreme Court for
temporary period. But the person to be appointed as an ad hoc Judge should duly qualified for
appointment as a Judge of the Supreme Court Likewise, retired Judge of the Supreme Court or a
High Court can also be requested by Chief Justice to sit and act as a Judge of the Supreme Court,
temporarily the prior consent of the President of India.

4.3
Jurisdiction of the Supreme Court-
The Supreme Court of India plays a very important role as the guardian of the Constitution and
the protector and guarantor of fundamental rights of the citizens. It is the Apex Court in the country

11
and exercises far greater powers than those of its predecessors, namely, the Federal Court or the
Privy Council. It also seeks to ensure civil liberties to the people.

4.4
Court of Record-
Article 129 makes the Supreme Court a Court of record and confers all the powers of such a court
including the power to punish for its contempt. A Court of Record is a Court whose records are
admitted to be of evidentiary value and they are not to be questioned when they are produced
before the court. Once a court is made a 'Court of Record', its power to punish for contempt
necessarily follows from that position. This extraordinary power must be sparingly used only
where public interest so demands.

4.5
Supreme Court's Power to punish for its contempt-
Contempt of Court includes both civil and criminal contempt. Civil contempt means willful
disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful
breach of undertaking given to a Court. Criminal contempt on the other hand means publication
(whether by spoken, written by sign or by visible representations) of any matter or doing of any
act whatsoever, which: -

(1) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of any Court; or

(ii) Prejudices or interferes or tends to interfere with the due course of any judicial proceedings; or

(iii) Interferes or tends to interfere with or obstructs or tends to obstruct, the administration of
justice in any other manner,

Article 129 of the Constitution empowers the Supreme Court to punish a person for contempt of
itself (i.e. Supreme Court) as well of its subordinate courts. It derives this power to punish for its
contempt in the capacity as a court of Record. In Delhi judicial Service Association v. State of
Gujarat the supreme Court had sent five Police Officers to jail as they were found guilty of criminal
contempt for harassing and handcuffing to Chief Judicial Magistrate of Nandiad town in Gujarat
out of revenge against him.

12
The Supreme Court exercises original, appellate and advisory jurisdictions:

Original Jurisdiction (Article 131)-The original Jurisdiction of the Supreme Court extends to
disputes between -

(a) The Government of India and one or more States; or

(b) Between the Government of India and any State or States on one side and one or more States
on the other; or

(c) Between two or more States, if it involves any question of law or fact on which the disputed
legal right depends.

The Supreme Court also has power to issue directions, orders or writs including the writ in the
nature of habeas corpus, mandamus, prohibition, quo-warrantor and certiorari for the enforcement
of fundamental rights under Article32 of the Constitution. It may also issue prerogative writs for
any purpose other than the enforcement of fundamental rights.

Appellate Jurisdiction (Articles 132-134) - An appeal shall lie to Supreme Court where the High
Court has given a certificate in any judgment, decree or final order passed by it in a civil, criminal
or other proceedings, that the case involves a substantial question of law as to interpretation of the
Constitution. In case of the refusal of a certificate by the High Court, the Supreme Court has power
to grant special leave if it is satisfied that the case is really involves a substantial question of law
as to interpretation of the Constitution.

The jurisdiction of the Supreme Court regarding appeals from High Courts in civil and criminal
cases is envisaged in Articles 133 and 134 of the Constitution.

It must be stated that prior to the 44th Amendment Act of 1977 the High Court grant certificate for
appeal to Supreme Court under Article 134-A only on a formal application of the aggrieved party
but after this Constitution amendment, it can grant certificate for appeal suo motu immediately on
the delivery of the judgment, decree or final order of sentence where it thinks fit to do so.

13
Advisory jurisdiction (Article 143):- The Advisory jurisdiction of the Supreme Court extends to
the matters which the President can refer to it for its opinion. The Supreme Court may, after such
hearing as it thinks fit, give its secret advice to the President. The use of the word “may” in Article
143 (1) Indicates that the Supreme Court is not bound to give its advice to the President when
asked for. In other words, it may decline to give the advice if it deems fit to do so. The President
is not bound by the opinion of the Supreme Court. Again, the advisory opinion of the Supreme
Court is not binding upon sub-ordinate courts in India as it has only a persuasive value, though
they are supposed to honor it.

Power to Review its Judgments (Article 137)-

The Supreme Court has the power to review its own judgments on grounds mentioned in Order
47, Rule 1 of the C.P.C. Power to review extends to following cases:

(1) Discovery of new important matters of evidence;

(2) Mistake or error apparent on the face of the record; and

(3) Any other sufficient reason.

The law declared by the Supreme Court - The law declared by the Supreme Court shall be binding
on "all courts" within the territory of India.

All the decisions of the Privy Council and the Federal Court are binding unless they are superseded
or overruled by a decision of the Supreme Court.

Supreme Court's Power to Review its own judgments (Article 137)-The Supreme Court has power
to review its judgment under Article 137 of the Constitution, subject to any law passed by the
Parliament. This power is exercisable under rules made by the Supreme Court under Article 145
on grounds specified in Order 47 Rule 1 of C.P.C. A review shall lie in the Supreme Court on: -

i) Discovery of any new important matters of evidence

14
ii) Mistake or error apparent on the face of the records and

(iii) Any other sufficient reason.

In R. D. Sagar v. Nagary, the Apex Court ruled that a review of its Judgment is an exceptional
phenomenon, which is permitted only where there is a grave and glaring error or a well established
ground.

Power to make Rules (Art. 145):-

(1) The Supreme Court has power, with the approval of the President, to make rules to regulate its
own procedure.
(2) Subject to the provisions of clause (3), rules made under this Article may fix a minimum
number of Judges who are to sit for any purpose and may provide for powers of Single Judges
and Division Courts.
(3) The minimum number of Judges who are to sit for the purpose of deciding any case involving
substantial question of law as to interpretation of this Constitution or for the purpose of hearing
any reference under Article 143 shall be five.
(4) The judgment shall be delivered by the Supreme Court in open Court and a report made under
Article 143 shall also be delivered in open Court
(5) The judgment which is in concurrence of the majority Judges shall be delivered in the presence
of them all.

4.6

Supreme Court's initiative towards introducing Video Recording of Courts-

Trial - The Supreme Court felt that audio-video recording of Court proceedings could contribute
to transparency of Court processes and better case Management. Therefore, by an Order' dated
28th March, 2017 the Apex Court directed High Courts to install CCTV cameras inside Court-
rooms in at least two districts of every State and Union Territory within three months for recording
the Court proceedings. However, there would not be any audio recording of Court proceedings.

15
The Court barred access of the video footage to lawyers, litigants and general public through the
Right to Information Act (RTI).

4.7

Independence of Judiciary-

The framers of the Constitution were conscious that independence of judiciary is a sine quo non
for the protection of the rights of the individuals and provide equal justice without fear or favor.
The constitutional provisions therefore, make sure that the highest Court of the country is the
Supreme Court is allowed to perform its functions in an atmosphere of freedom for all kinds of
pressures so that it may function with impartiality and independence.

Independence of judiciary is maintained through the insertion of certain constitutional provisions

which are briefly stated as follows:

1. The Judges of the Supreme Court and High Courts have security tenure. They cannot be removed
from office except by an order of the President only on the ground of proved misbehavior or
incapacity.

2. Salary of Judges is fixed, and it is not subject to vote of legislature draw their salary which is
charged on the Consolidated Fund of India. Their tenure of office, their salaries and allowances
cannot be altered to disadvantage except in grave financial emergency.

3. Parliament cannot curtail the jurisdiction and powers of the Supreme Court. It may, however,
extend the jurisdiction of the Court in civil case enhance its appellate jurisdiction, but not curtail
or restrict it (Article 135).

4. There can be no discussion on the conduct of a Supreme Court Judge Legislature - Neither the
Parliament nor any State Legislature can take for discussion, conduct of any Supreme Court Judge
(Article 121).

5. Power to punish for its contempt - The Supreme Court has the power to maintain its
independence and impartiality. Principle contained in Article 50 directs the State to ensure
separation of Article 129 to punish any person for its contempt.

16
6. The power enables the Separate of Power between Judiciary and Executive - The directive
judiciary from executive in the public services of the State so that independence a judiciary is
ensured. Judiciary is therefore, completely free from any kind of interference by the Executive
organ of the Government.

7. The opinion of the Supreme Court collegium prevails in appointment of the Supreme Court and
High Court Judges - There are elaborate provisions in this regard in Article 124 (2) of the
Constitution.

CHAPTER 5

CRITICAL APPRECIATION

The Supreme Court of India is one of the most honored judicial institution in the world. The
Constitution provides adequate safeguards to ensure the independence and dignity of the Supreme
Court. The Court is completely free from the control of the executive. The Judges of the Supreme
Court are immune from legal action in respect of discharge of their judicial functions. This
provision enables the Judges of the Supreme Court to perform their duties without fear or favor.
The removal of the Judge of the Supreme Court is also not easy as it requires a mandate of absolute
majority of both the Houses of the Parliament. The Supreme Court acts as a guardian of the
Constitution as it determines the legality of the action of the legislative bodies and executive
authorities as between the State and the citizens.

It is evident from the conditions of eligibility for appointment as a Supreme Court Judge that only
outstanding and most experienced persons are elevated to this high office. The Constitution
provides that a distinguished also eligible for appointment as a Judge of the Supreme Court but
ultimately not a single jurist has so far been appointed to this office during the last sixty-seven
years. In fact, ability should be the only criteria for selecting the Judges of the Supreme Court

17
problem of arrears of pending appeals and petitions adversely affects efficiency of the Supreme
Court. Unprecedented increase in appeals to industrial disputes causes considerable delay in quick
disposal or to overcome this problem, it has been suggested that the appeal related to labour and
industrial disputes should be directed to the High Court or to special labour tribunals. The Law
Commission in its Fourteenth Report 19 had suggested that a constitutional restriction should be
imposed on employment or chamber practice of the retired Supreme Court Judges The may,
however, be appointed as ad hoc Judges of the Supreme Court for limited period In order to ease
legal burden of cases pending in courts, the Union Government is in the process of formulating a
draft on national litigation that may have a provision for an empowered committee headed by the
Attorney-General of India, to monitor its implementation and ensure accountability. The target is
to reduce average pendency time of cases from 15 to 3 years and bring down litigation across the
country.

The law ministry statistics shows that nearly 55-60% of the total pendency of 3.2 crore cases are
those filed by the Government The new policy is intended to bring down litigation across the
country and ensure that competent lawyers are hired by the Government. There is also a proposal
of the Government that law ministry with the co-sponsorship of the Supreme Court may form a
National judicial Data Grid that would have details of all such cases which are pending and the
number of under-trials languishing in jails for number of years without their cases being taken up
for trial. The empowered committee shall be chaired by the Attorney-General and have maximum
six members nominated by law ministry with an additional secretary level law officers as the
Member-Secretary.

There is also proposal for four regional empowered committees to be chaired by an Additional
Solicitor-General nominated by the law ministry will include all the Assistant Solicitor-General of
the region. Before concluding the discussion on the Supreme Court and its working a word must
be said about its recent role in activiting public interest litigation. If goes to the credit of the judges
of the Supreme Court, notably, Mr. Justice P.N Bhagwati and Mr. Justice V.R. Krishna Iyer, who
by their judicial activism have enhanced the prestige of the Supreme Court and made it a true
defender of the rights of those who are p0or, ignorant and under-privileged and have Hit-her-to
remained completely neglected due to non-access to the court before the monetary oriented

18
adversarial system of litigation in India. It has now become possible tor the commonest man to
approach the Apex court for redressal of his grievance and claim relief for violation of his
fundamental right through a writ petition in Public Interest Instances are not wanting when the

Supreme Court Suo Motu has taken cognizance of the governmental carelessness or administrative
lapses which have resulted into untold miseries and sufferings to the public in general and the poor
and neglected class of society in particular for breach of their basic rights by the State agencies.
The role of the Supreme Court as a champion for the cause of people's rights has indeed enhanced
its prestige in the eyes of common man. As rightly pointed out by Professor Upendra Baxi, the
social interest litigation has taken justice to the door-steps of common man.

In S.P. Gupta v. Union of India, the Supreme Court observed that millions of persons belonging
to the deprived and vulnerable sections of human society have been looking to the courts for
improving their life conditions and making basic human rights meaningful for them. "They have
been crying for justice but their cries have so far been in the wilderness. The legal aid movement
and the public interest litigation seek to bring justice to these forgotten specimens of humanity
who constitute the bulk of the citizens of India and who are really and truly the "People of India"
who gave to themselves this magnificent Constitution".

In its historic decision in Nilabati Behera v. State of Orissa, the Supreme Court rejected the State's
defense of sovereign immunity in cases where a claim for compensation for contravention of
human rights and fundamental freedoms, the protection of which is guaranteed in the constitution,
was based on strict liability. The Court observed that there is no question of such a defense being
available in a constitutional remedy where the contravention of fundamental rights guaranteed by

19
the Constitution was involved. The State was therefore, made liable to pay compensation to the
petitioner for the custodial death of her son7.

CHAPTER 6

CONCLUSION

A Federal Court at Delhi was established under the Government of India Act 1935. This court
served as immediate precursor to the current Supreme Court of India. It was composed of a Chief
Justice and not more than six judges. It had original, appellate, advisory jurisdiction. Its exclusive
original jurisdiction was in all disputes between the federation and the units or between the units
of the proposed federation. Appeal from the federal court could go to Privy Council without leave
in case of original jurisdiction and with leave for any other matter. The Constituent assembly
passed the Abolition of Privy Council Jurisdiction Act in 1949 to abolish the jurisdiction of the

7
Referenced from, https://blog.ipleaders.in/federal-court-and-supreme-court-in-india/ (Visited on November 19,
2019).

20
Privy Council in respect of appeals from India also to provide for pending appeals. With this,
India’s Supreme Court was established at the top of the unitary judicial system of India.

The Act also provided for transfer of all cases filed before Privy Council to the Federal Court in
India. All the powers of the Privy Council regarding appeals from the High Court were conferred
to the Federal Court.

Thereafter with the commencement of the Constitution of India in 1950, the Supreme Court has
been established and is serving as the Apex Court for all purposes in India. It hears appeals from
all High Courts and Sub-ordinate courts. With the appellate jurisdiction of the Privy Council
finally came to an end.

BIBLIOGRAPHY

BOOKS:-

1. Indian Legal & Constitutional History, Dr. N.V. Paranjape.

2. Outlines of Indian Legal and Constitutional History, M.P. Jain.

WEBSITES:-
1. https://www.gktoday.in/gk/federal-court_25/amp/.

21
2. https://www.gktoday.in/gk/supreme-court-of-india_25/amp/.
3. https://www.lawctopus.com/academike/criminal-procedure-india/.
4. https://blog.ipleaders.in/federal-court-and-supreme-court-in-india/.

22