Supreme Court Practice and Procedure

 

SUPREME COURT PRACTICE AND PROCEDURE[1]

 

A.      JURISDICTION

1.         Appellate Jurisdiction

(i)            Article 132-from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under article 134A that the case involves a substantial question of law as to the interpretation of this Constitution.

                Any party may appeal to Supreme Court

                Article 133-n a civil proceeding of a High Court- Certificate under Article 134A-substantial question of law of general importance

                Opinion of High Court- question needs to be decided by SC

                Article 134- in regard to criminal matters-

                                - HC Reversal of acquittal order – sentenced to death

                - HC withdrawn the trial from subordinate court and sentenced to death

134A-   Certificate for appeal to SC:

                (a) on its own motion

                (b) an oral application by any party

Substantial question of law –

 

Civil Appeal –

Ordinarily, the following category of cases shall be registered as civil appeals:

(1)          appeals by certificate under Articles 132 and 133 of the Constitution read with Order XIX of the Rules;

(2)          appeal, upon grant of special leave to appeal, under Article 136 of the Constitution read with Order XXI of the Rules;

(3)          appeal under Section 130E of the Customs Act, 1962;

(4)          appeal under Section 35L of the Central Excise and Salt Act, 1944;

(5)          appeal under Section 23 of the Consumer Protection Act, 1986; a Bank Draft of Rs. 50,000/- or 50% of the amount

(6)          appeal under Section 27A of the Consumer Protection Act, 1986;

(7)          appeal under Section 19(1)(b) of the Contempt of Courts Act, 1971;

(8)          appeal under Section 38 of the Advocates Act, 1961;

(9)          appeal under Section 116A of the Representation of People Act, 1951;

(10)       appeal under Section 18 of the Telecom Regulatory Authority of India Act, 1997;

 (11)      appeal under Section 15Z of the Securities and Exchange Board of India Act, 1992;

(12)       appeal under Section 261 of the Income Tax Act, 1961;

(13)       appeal under Section 53T of the Competition Act, 2002;

(14)       appeals under Sections 30 and 31 of the Armed Forces Tribunal Act, 2007;

(15)       appeal under Section 125 of the Electricity Act, 2003;

(16)       appeal under Section 29(1) of the Wealth Tax Act, 1957;

(17)       appeal under Section 22 of the National Green Tribunal Act, 2010;

(18)       appeal under Section 10 of the Special Court (Trial of offences relating to Transaction in Securities) Act, 1992;

(19)       appeal under Section 423 of the Companies Act, 2013;

(20)       appeal under Sections 17 and 18 of the Airport Economic Regulatory Authority of India Act, 2008

 

 

Criminal Appeal –

Ordinarily, the following cases shall be registered as criminal appeals –

(1)          appeals by certificate under Articles 132(1) and 134(1)(c) read with Order XX of the Rules;

(2)          appeal under Article 134(1)(a) and (b) or made any other provision of law under Order XX of the Rules;

(3)          appeal, upon grant of special leave to appeal, under Article 136 of the Constitution read with Order XXII of the Rules;

(4)          appeals under Sections 30 and 31 of the Armed Forces Tribunal Act, 2007;

(5)          appeal under Section 10 of the Special Court (Trial of Offences relating to Transaction in Securities) Act, 1992; (Criminal);

(6)          appeal under Section 374 of the Code of Criminal Procedure, 1973;

(7)          appeal under Section 380 of the Code of Criminal Procedure, 1973;

(8)          appeal under Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, as amended by the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Amendment Act, 1972, read with Section 379 of the Code of Criminal Procedure, 1973;

(9)          appeal under Section 19(1)(b) of the Contempt of Courts Act, 1971.

 

 

2.         Extra-ordinary Appellate Jurisdiction – Article 136 -SLP (Civil) & (Crl.)- Refusing grant of certificate

 

 

3.         Original Jurisdiction:

 

(i)            Petitions under Article 32 of the Constitution read with Order XXXVIII of the Rules for issue of directions or orders or writs, including the writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of the fundamental rights;

                (A)          Writ – not PIL

               

(ii)           Original suits under Article 131 of the Constitution read with Part III(A) Orders XXV to XXXVII of the Rules.

                131. Original jurisdiction of the Supreme Court.- SC shall exclude any other court having original jurisdiction in any dispute

(a)    between Govt. and one or more states

(b)    between GOI and State of state on one side and one or more states in other.

(c)     between two or more states

(iii)          Petitions under Article 139A(1) of the Constitution read with Order XL of the Rules seeking transfer of cases involving the same or substantial questions of law pending -

- before the Supreme Court and one or more High Courts or

- before two or more High Courts;

-own motion or on an application made by the Attorney-General of India or by a party to any such case

- dispose of all the cases itself

(iv)         Petitions under Article 139A(2) of the Constitution read with Order XLI of the Rules seeking transfer of any case, appeal or other proceedings pending before any High Court to any other High Court;

                - if it deems it expedient so to do for the ends of justice, transfer any case

(v)          Petitions under Section 25 of the Code of Civil Procedure, 1908 read with Order XLI of the Rules, seeking transfer of any suit, appeal or other proceeding from a High Court or other civil court in one State to a High Court or other civil court in any other State;

(vi)         Petitions under Section 406 of the Code of Criminal Procedure, 1973 read with Order XXXIX of the Rules, seeking transfer of any particular case or appeal from one High Court to another High Court or from a criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction, subordinate to another High Court;

(vii)        Petition under Part III of the Presidential and Vice-Presidential Elections Act, 1952 (31 of 1952) read with Article 71 of the Constitution and Order XLVI of the Rules relating to doubts and disputes in relation to the election of a President or Vice- President;

(viii)       Petition under Section 11(5) of the Arbitration and Conciliation Act, 1996, read with Appointment of Arbitrators by the Chief Justice of India Scheme, 1996, relating to appointment of an Arbitrator.

4.         Extra-ordinary Original Jurisdiction :- 

-Petitions under Article 32 of the Constitution

5.         Advisory Jurisdiction

(i)            Reference by the President under Article 143(1) of the Constitution read with Order XLII of the Rules on a question of law or fact of public importance;

(ii)           Reference by the President under Article 143(2) of the Constitution read with Order XLII of the Rules of a dispute of the kind mentioned in the proviso to Article 131 of the Constitution;

(iii)          Reference by the President under Article 317(1) of the Constitution read with Order XLIII of the Rules in relation to an inquiry for removal of the Chairman or any other Member of a Public Service Commission from his office on the ground of misbehaviour;

(iv)         Reference by the President under Section 14(1) of the Right to Information Act, 2005 read with Order XLIII of the Rules;

(v)          Reference by the Governor under Section 17(1) of the Right to Information Act, 2005, or any Statute under Order XLIII of the Rules;

(vi)         Reference under Order XLIV of the Rules by the Central Government or Statutory Tribunals under the Statutes;

(vii)        Reference under Section 257 of the Income Tax Act, 1961 read with Order XLV of the Rules, by the Income Tax Appellate Tribunal through its President.

 

6.         Inherent and Plenary Jurisdiction –

(i)            Petitions under Section 3 of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, read with Articles 129 and 142 of the Constitution;

(ii)           Applications for review under Article 137 of the Constitution read with Order XLVII of the Rules;

(iii)          Curative petitions under Order XLVIII of the Rules as per law laid down in the case of Rupa Ashok Hurra vs. Ashok Hurra and Anr. [2002 (4) SCC 388] to prevent abuse of the process of the Court and cure gross miscarriage of justice;

-              To prevent abuse of its process and cure gross miscarriage of justice,

(iv)         Applications under Section 2 of the Supreme Court [Decrees and Orders] Enforcement Order, 1954.

 

 

7.         Transferred Case –

A case under Article 139A(1) of the Constitution read with Order XL of the Rules, upon being transferred by the High Court to this Court, shall be registered as a Transferred Case.

8.         Transfer Petition –

 

 

9.         Constitution Bench

(i)            Every case involving a substantial question of law as to the interpretation of the Constitution under Article 145(3) or any Reference made under Article 143 of the Constitution shall be heard by a Bench consisting of not less than five Judges.

(ii)           Every petition calling in question the election of the President and Vice-President under Article 71 of the Constitution read with Part III of the Presidential and Vice-Presidential Elections Act, 1952,shall be posted before a Bench of five Judges under Order XLVI of the Rules.

(iii)          The Chief Justice may, from time to time, constitute a Bench consisting of five or more Judges for the purpose of hearing any other cause, appeal or matter.

 

10.         Reference to Larger Bench

(i)            A Division Bench of two or more Judges may refer any cause, appeal or other proceeding, pending before it, to a larger Bench of not less than five Judges involving a substantial question of law as to the interpretation of the Constitution, as per proviso to Article 145(3) of the Constitution.

(ii)           Where, in the course of hearing of any cause, appeal or other proceeding, the Division Bench considers that the case should be dealt with by a larger Bench, it shall refer the case to the Chief Justice, who shall thereupon constitute such a Bench for hearing it.

(iii)          If a Bench of less than three Judges, hearing a cause, appeal or matter, is of the opinion that the accused should be sentenced to death, it shall refer the case to the Chief Justice, who shall thereupon constitute a Bench of not less than three Judges for hearing it.

(iv)         After the Reference is answered by a larger Bench, wherever required, the case shall be placed before the Chief Justice for listing before an appropriate Bench for hearing and decision in accordance with the opinion of the larger Bench.

 

 

 

B.      PROCEDURE

 

1.         Special Leave Petition [for preparation of SLP]

                (i)            Requirements SLP(Civil)

·         Certified copy of the order or file IA for exemption

·         Affidavit -attested

·         Vakalatnama by AOR

·         Court Fee

(ii)           Requirements SLP(Crl.)

·         Certified copy of the order or file Crl.M.P. for exemption

·         Affidavit by Pairokar (If accused in jail)

·         Vakalatnama attested by Jail authority (If in jail)

·         Custody Certificate provided by Jail authority

·         Must surrender for listing of SLP or Crl.M.P. for exemption from surrendering- list before Chamber Judge.

·         No Court Fee

(iii)          Contents of the SLP

·         Specific Format [Form 28- Supreme Court Rules, 2013]

·         Give complete detail of the High Court of lower court details –

Ø  Final/interim order

Ø  Date of order

Ø  Name of High Court/Lower Court

Ø  Case No.

·         Synopsis and List of dates- (Mark annexures with page number) Chronological order [Not collectively]

·         Marking of annexure- Doc. No., date [“dated Nil” if no dates], issued by

·         Cause title- as per High Court [in Crl. SLP- Position of parties in Trial Court]

·         Any changes not mentioned in High Court shall be mentioned in Para 1A

·         Total number of annexures mention in Para 4

·         Question of laws in negative form (? Marks)

·         Specific prayer- “grant Special Leave to Appeal”

·         Prayer for interim relief is in SLP format

·         Certificate regarding documents relied upon – no additional facts [Mention if filing application of Addl. Documents]

·         In case of death of parties- Application for Substitution of LRs – with permission to file SLP- Requirements-

Ø  Death Certificate

Ø  Details of all the LRs with age and relation with deceased party

Ø  Paragraph regarding – There are no other LRs apart from mentioned above

Ø  If delay (after 30 days of death) file Application for Condonation of delay

·         Appendix – relevant Acts and Rules

·         File all the HC documents, specially which is mentioned in impugned order

·         Mark annexure with List of Dates (with page no. of SLP paper book)

·         Annexures of Addl. Documents will be marked with Application

·         Limitation 90 days

·         Delay application – Mention delay days -

·         IA/Crl.M.P. for Official Translation

·         Clear legible/Typed copy of all annexures

 

2.         Indexing SLP

                [Initial filing 1 Original + 1 Paper Book]

Ø  Original file indexing

·         Check List- [mention “Death case”/ “Not a death case” and “Batch matter” or “not a batch matter”]

·         Index

·         Court Fees [Pagination (i)]

·         Office Report on Limitation

·         Listing Proforma

·         Cover Page of Paper Book

·         Index of Record of Proceedings

·         Limitation Report prepared by the Registry

·         Defect List

·         Note Sheet

·         Synopsis and List of Dates [mark annexure]

·         Impugned order

·         Special Leave Petition with Affidavit         

·         APPENDIX

·         Annexures

·         IA/Crl.M.P. for Addl. Document with addl. Annexures (if any)

·         Other IAs/Crl.M.P.s

·         Custody certificate (if in jail)

·         Filing Memo

·         Vakalatnama

·         Memo of parties (if required)

·         Any letter

 

Ø  Paper Book indexing

 

·         Cover Page on front

·         Record of Proceedings

·         Index

·         Office Report on Limitation [Pagination A]

·         Listing Proforma [Pagination from A-1]

·         Synopsis and List of Dates [Pagination from B to Z] [If exceeding Z- file application for permission to file lengthy list of dates]

·         Impugned order [from Page 1]

·         Special Leave Petition with Affidavit [continue pages]      

·         APPENDIX

·         Annexures

·         IA/Crl.M.P. for Addl. Document with addl. Annexures (if any)

·         Other IAs/Crl.M.P.s

·         Custody certificate (if in jail)

 

3.         Writ Petition [for preparation] U/Article 32 [Not a PIL]

·         No specific format- mention nature of writ

·         Mark annexure in body of the writ petition not in List of dates

·         Para required regarding non filing any other writ/petition for same relief.

·         Prayer

·         Stay application

 

4.         Writ Petition [for preparation] U/Article 32 [PIL]

·         No specific format

·         mention nature of writ and no personal interest involved

·         full name, complete postal address, e-mail address, phone number, proof of personal identification, occupation and annual income, PAN number and National Unique Identity Card number, if any;

·         the facts constituting the cause of action

·         the nature of injury caused or likely to be caused to the public;

·         the nature and extent of personal interest, if any, of the petitioner(s);

·         details regarding any civil, criminal or revenue litigation, involving the petitioner or any of the petitioners, which has or could have a legal nexus with the issue(s) involved in the Public Interest Litigation

·         affidavit stating that the petitioner has no personal gain, private motive or oblique reason in filing such petition.

·          

Ø  indexing

·         Cover Page on front

·         Record of Proceedings

·         Index

·         Listing Proforma [Pagination from A-1]

·         Synopsis and List of Dates [Pagination from B to Z] [If exceeding Z- file application for permission to file lengthy list of dates]

·         Writ Petition with Affidavit [continue pages]       

·         APPENDIX

·         Annexures

·         Stay application

 

5.         Procedure after filing

·         1 original + 1 paper book

·         File goes to concerned Section/Branch

·         Defects [cure within 28 days]

·         Refile [1 Original + 3 paper books]

·         Declaration

·         Defect not cured [90 days delay – list before registrar]

·         Defect not cured [beyond 90 days-list before chamber judge]

·         Dismiss if defect not cured thereafter

 

6.         Review Petition

·         review under Order XLVII of the Rules read with Article 137 of the Constitution

·         Certificate mentioning “First review petition” is mandatory

·         Same Court fee

·         List by circulation before same judge in chamber [Not in open court-no oral argument] – may file application for open court hearing

·         Non-availability of same judge, by reason of retirement -Chief Justice will constitute

·         No further appeal/application after dismissal

 

7.         Curative Petition

·         curative petition under Order XLVIII of the Rules

·         By circulation

·         Be heard by three senior-most Judges and the Judges, who passed the judgment

·         Certificate by Senior Advocate-

·         affidavit, accompanying a curative petition, shall state in clear terms that the petition is governed by the judgment of the Court in the case of Rupa Ashok Hurra vs. Ashok Hurra and Anr.[2002 (4) SCC 388].

 

8.         Limitations

               

Writ Petition (Civil/Crl.)	No limitation
Transfer Petition (Civil/Crl.)	No limitation
Election Petition	30 days from the date of publication of declaration of the name of the returned candidate
SLP (Civil/Crl.)	(i)    90 days from date of order (ii)   60 days from date of order in death sentence cases (iii) 60 days from date of refusal of certificate of fitness to appeal
Appeals	60 days or as per statutes
Review Petition	30 days of order

 

9.         Affidavit

 

 

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[1] Ajit Kumar Ekka is AOR at the Supreme Court of India. Edited by Lokdeep Mourya, practicing advocate at Supreme Court of India.