8. Under the constitutional scheme as framed for the judiciary, the Supreme Court and the High Courts both are courts of record. The High Court is not a court 'subordinate' to the Supreme Court. In a way the canvass of judicial powers vesting in the High Court is wider Inasmuch as it has jurisdiction to issue all prerogative writs conferred by Article 226 of the Constitution for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose while the original jurisdiction of Supreme Court to issue prerogative writs remains confined to the enforcement of fundamental rights and to deal with some such matters, such as Presidential election or inter-state disputes which the Constitution does not envisage being heard and determined by High Courts. The High Court exercises power of superintendence under Article 227 of the Constitution over all subordinate courts and tribunals; the Supreme Court has not been conferred with any power of superintendence. If the Supreme Court and the High Courts both were to be thought of as brothers in the administration of justice, the High Court has larger jurisdiction but the Supreme Court still remains the elder brother. There are a few provisions which give an edge, and assign a superior place in the hierarchy, to Supreme Court over High Courts. So far as the appellate jurisdiction is concerned, in all civil and criminal matters, the Supreme Court is the highest and the ultimate court of appeal. It is the final interpreter of the law. Under Article 139-A, the Supreme Court may transfer any case pending before one High Court to another High Court or may withdraw the case to itself. Under Article 141 the law declared by the Supreme Court shall be binding on all courts, including High Courts, within the territory of India. Under Article 144 all authorities, civil and judicial, in the territory of India -- and that would include High Court as well -- shall act in aid of the Supreme Court.
9. In a unified hierarchical judicial system which India has accepted under its Constitution, vertically the Supreme Court is placed over the High Courts. The very fact that the Constitution confers an appellate power on the Supreme Court over the High Courts, certain consequences naturally flow and follow. Appeal implies in its natural and ordinary meaning the removal of a cause from any inferior court or tribunal to a superior one for the purpose of testing the soundness of decision and proceedings of the inferior court or tribunal. The superior forum shall have jurisdiction to reverse, confirm, annul or modify the decree or order of the forum appealed against and in the event of a remand the lower forum shall have to re-hear the matter and comply with such directions as may accompany the order of remand. The appellate jurisdiction inherently carries with it a power to issue corrective directions binding on the forum below and failure on the part of latter to carry out such directions or show disrespect to or to question the propriety of such directions would -- it is obvious -- be destructive of the hierarchical system in administration of justice. The seekers of justice and the society would lose faith in both.
10. In Shankar Ramachandra Abhankarb v. Krishnaji Dattatraya Bapat -- , this Court pointed out that appeal is the right of entering the superior court and invoking its aid and interposition to redress the error of the court below. There are two important postulates of constituting the appellate jurisdiction; (i) the existence of the relation of superior and inferior court; and (ii) the power in the former to review decisions of the latter. Such jurisdiction is capable of being exercised in a variety of forms. An appeal is a process of civil law origin and removes a cause, entirely subjecting the facts as well as the law, to a review and a retrial.
11. The very conferral of appellate jurisdiction carries with it certain consequences. Conferral of a principal substantive jurisdiction carries with it, as a necessary concomitant of that power, the power to exercise such other incidental and ancillary powers without which the conferral of the principal power shall be rendered redundant. As held by their Lordships of the Privy Council in Nagendra Nath Dey and Anr. v. Suresh Chandra Dey and Ors., AIR 1932 Privy Council 165 (Sir Dinshah Mulla speaking for the bench of five) an appeal is an application by a party to an appellate Court asking it to set aside or revise a decision of a subordinate Court. The appeal does not cease to be an appeal though irregular or incompetent. Placing on record his opinion, Subramania Ayyar, J. as a member of Full Bench (of five judges) in Chappan v. Moidin Kutti, (1899) 22 ILR Mad. 68 (at p.80) stated inter alia that appeal is "the removal of a cause or a suit from an inferior to a superior Judge or Court for re-examination or review". According to Wharton's Law Lexicon such removal of a cause or suit is for the purpose of testing the soundness of the decision of the inferior Court. "In consonance with this particular meaning of appeal, 'appellate jurisdiction' means "the power of a superior Court to review the decision of an inferior Court". "Here the two things which are required to constitute appellate jurisdiction, are the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. This has been well put by Story:- "The essential criterion of "appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted and does not create that cause. In reference to judicial tribunals an appellate jurisdiction, therefore, necessarily implies that the subject-matter has been already instituted and acted upon by some other Court, whose judgment or proceedings are to be revised," (Section 1761, Commentaries on the Constitution of the United States)."
12. Adapting the abovesaid pronouncements of authority as guiding the resolution of the issue in our hands we may venture to say that in spite of the Supreme Court and the High Courts being both constitutionally independent of each other and both being the Courts of record, to the extent of exercise of appellate jurisdiction certainly the Supreme Court exercises a superior jurisdiction and hence is a superior Court than the High Courts which exercise in that context an inferior or subordinate jurisdiction.
13. What is the significance of creating an appellate forum? And, what is sought to be achieved by creation of such hierarchy in the justice administration system ?
"The Appellate Court plays an important role in securing high standards of judicial behavior in court............... Bearing this in mind, the role of the Court of Appeal in checking judges should not be underestimated..................The Court of Appeal regards itself as fulfilling a disciplinary function...........The Court of Appeal carefully phrases its criticism. The Court usually makes clear that they do not doubt that "the judge was actuated by the best motives" or that "in a strong desire to do justice a judge may make mistakes", but they use a language clear enough to ensure that the judge to whom the criticism is addressed, as well as other judges, get their message." (See --Judges on Trial, Shimon Shetreet, pp.201-202). "The role of the Court of Appeal in checking judicial conduct and in securing high standards of judicial behavior in court is manifold. The Court of Appeal censures and criticized judicial misconduct in particular cases and corrects injustices resulting from such misconduct. Whether it reverses the judgment, quashes the conviction, reduces the sentence, or changes the judgment in any manner, the disapproval and condemnation of the misconduct restores the public confidence in the courts which might otherwise have been impaired. The party offended or prejudiced, and the public at large, might be tempted to attribute misconduct of a particular judge to the judiciary as a whole. The disapproval and criticism of the appellate court, even without amending the judgment, eliminates such danger and restores the scales of justice to their proper balance." (ibid, pp.203-204).
14. In Chapter IV of the Constitution of India, bearing the heading -the Union Judiciary, Articles 132 to 136 deal with appellate jurisdiction of the Supreme Court. Of all these Articles, it is Article 136 which is worded in the widest possible terms. A plenary jurisdiction exercisable on assuming appellate jurisdiction subject to grant of special leave against any kind of judgment or order made by any Court or Tribunal and in any cause or matter has been embodied and vested in the Supreme Court. It is an extraordinary jurisdiction vested by the Constitution in the Court with implicit trust and faith and extraordinary care and caution has to be observed in the exercise of this jurisdiction. Article 136 does not confer a right of appeal on a party but vests a vast discretion in the Supreme Court meant to be exercised by the considerations of justice, call of duty and eradicating injustice.
15. The extent and dimension of jurisdiction conferred on the Supreme Court was well brought out by Chief Justice M.C. Mahajan in the case of Dhakeswari Cotton Mills v. Commissioner of Income-tax, West Bengal - AIR 1955 SC 65 wherein he said -
"It is not possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested in this Court by the constitutional provision made in Article 136. The limitations, whatever they be, are implicit in the nature and character of the power itself. It being an exceptional and overriding power, naturally it has to be exercised sparingly and with caution and only in special and extraordinary situations. Beyond that it is not possible to fetter the exercise of this power by any set formula or rule. .................. It is, however, plain that when the Court reaches the conclusion that a person has been dealt with arbitrarily or that a court or tribunal within the territory of India has not given a fair deal to a litigant, then no technical hurdles of any kind like the finality of finding of facts or otherwise can stand in the way of the exercise of this power because the whole intent and purpose of this Article is that it is the duty of the Court to see that injustice is not perpetuated or perpetrated by decisions of courts and tribunals because certain laws have made the decisions of these courts or tribunals final and conclusive."
16. The Founding Fathers of the Constitution devised a justice delivery system in the country as one homogenous in content, taking care of independence and hierarchy both, and holding the scales of balance even while doing so. The Union judiciary and the State judiciary are undoubtedly independent of each other except for a few areas relating to jurisdiction as we have very briefly indicated hereinbefore. However, at the same time, we cannot resist laying emphasis on the appellate hierarchy which, examined in the correct perspective, is a factor strongly contributing towards the independence of the judiciary and securing finality in adjudication within the system and its insulation from any outside interference or correction. The delicate balance has been carefully crafted and sought to be achieved by independence and interconnection -- both existing simultaneously -- of the Supreme Court and the High Courts. There are 'relationships of tension as well as those of cooperation', to borrow the expression employed by Frank M. Coffin in his work 'On Appeal - Courts, Lawyering, and Judging'. He says, "on the sensitive and sophisticated application of the various doctrines governing these relationships depends in large part the effective functioning of cur unique form of federalism." (at pp.52-53)
17. Delivering a lecture on 25.7.1963, in Centenary Lecture Series organised on the occasion of Centenary Celebration of the Advocates Association of Western India, Motilal C. Setalvad -- the great Indian jurist dealt with the role of the Supreme Court under the Constitution and said -
"the exercise by the court of its jurisdiction under article 136 bears witness to the wisdom and foresight of the court. That article confers on the court an overriding power to examine the decision of all courts and tribunals in the country, a power which is larger than the Crown prerogative exercised by the Privy Council and which is not capable of being restricted by ordinary legislation. The court has refused to define the limitations on the power under that article and laid down that these were inherent in its exceptional and overriding nature." (Centenary Souvenir, p. 134).
18. How the Supreme Court and the High Court have to deal with each other specially when the Supreme Court is exercising its appellate jurisdiction over a decision by, or proceedings -- concluded or pending in the High Court? The Constitution has clearly divided the jurisdiction between the two institutions and while doing so these institutions have to have mutual respect for each other. The framers of the Constitution did not think it necessary to specifically confer power on the Supreme Court to give a command to the High Court for they were the men of vision and foresight. They knew that all the constitutional functionaries and institutions would act in the best interest of norms and traditions consistent with democracy and constitutionalism, set down in and discernible from the Constitution and as handed down by history and generations of judges. Everyone would, it was expected, keep within its bounds and would not overstep its limits so that the idea is and the values remain a living reality and do not become either an intrusion or an illusion. The constitutional and democratic institutions, complementing and supplementing each other, would lend strength to these handed down traditions and would also contribute to developing such rich traditions as would be respected and hailed by posterity. This would result in strengthening the working of the Constitution. In the realms of constitutionalism the values of mutual trust and respect between the functionaries, nurtured by tradition, alleviate the need to codify the rules of the relationship. Experience shows that any rigid codification of such delicate relationship is advantageous to those bent upon vilification. A rigid written law makes it difficult to maintain that dignity which is better and rightly left to be perceived by right-minded people who zealously uphold the dignity of others as they do their own.
19. An institution dealing with another institution under the Constitution shall have to observe grace and courtesy. No judge shall criticize another judge and certainly not strongly. Any departure therefrom needs to be corrected at the earliest and in the larger interest. It is obligatory on an appellate forum to correct such deviation from rule brought to its notice as having been committed by a jurisdiction subject to appeal and if it does not do so ft fails in its duty. Undoubtedly, the corrective step too is taken carefully with courtesy and respect and not by way of harsh criticism. An instance quoted by David Pannick is worthy of reference and reverence. In a 1971 case Mr. Justice Lawson gave his reasons for doubting the correctness of an earlier decision of the Court of Appeal. Nevertheless, he concluded, 'I am bound by the decision in [the earlier case], although I am compelled to say, again with the greatest respect, that I believe it to have been wrongly decided'. The Court of Appeal was very unhappy. Lord Justice Davies replied, "with the greatest respect to Lawson J', that he thought that 'those observations were out of place. It is unusual, and, I am bound to say, undesirable, in my opinion, for a judge sitting at first instance.....to express the opinion, although accepting that he is bound by it, that a decision, and a fairly recent decision, of this court was wrong.' (Judges, pp. 127-128).
20. A great judge and jurist Benjamin N. Cardozo has a little bitter truth to describe. Cautioning the judges against the official-in-judge being permitted to swallow up the man-in-him, Benjamin Cardozo says that there have been judges in the past who suffered that disaster. However, what Cardozo has in mind is something more than "the egotism that displays itself in harsh and overbearing manners, in explosive vigour of voice etc. Exuberances such as these are at times the result of infirmities of temper not unknown altogether to the bench though happily uncommon; more often they are the defensive appliances of weakness or incapacity, conscious of its failings, and hopeful to divert attention by what seems to be a manifestation of its strength". "The slumbering beast is in us, and may be waked to life and fury if we feed him overmuch. The ravening official will seek to swallow up the man. I interpret the invitation to be with you today as an expression of your judgment that whatever mistakes I may have made -- and I know that they have been more than I like to figure or remember -- I have at least avoided this one, I have not allowed the official to swallow up the man. I don't mean that I am entitled to a great deal of credit for so modest an achievement In a court where the tradition of courtesy and equity is so ingrained and inveterate as it is in the Court of Appeals, one would have to be a pretty hardened sort of sinner to be guilty of the particular form of wrongdoing that has its origin in the pride of office. But then, when you come to think of it, virtues are important in the inverse order to the credit that is due to those who cultivate and practice them. No one of us struts about with satisfaction for the self-restraint involved in refraining from the crime of homicide, yet if the importance of the virtue were the measure of the credit we should all be crowling and cawing with the pride of moral excellence. So I don't assume to pride myself on the very modest virtue of being merely a human being." (Selected Writings of Benjamin Nathan Cardozo, pp.427-428).
21. Just two or three instances of Indian judiciary available in Law Reports deserve a reference and would suffice too. In Bharat Builder Pvt. Ltd. and Ors. v. Parijat Flat Owners Coop. Housing Society Ltd. - while disposing of an earlier SLP the Supreme Court desired the High Court to decide a plea by the convenient means of a review petition expecting the High Court "that the questions shall be addressed", "regardless of the technical limitations of the review petition". The High Court dismissed the review application and observed inter alia -- "the issue posed to be examined as directed by the Supreme Court is not the issue which was raised in the trial court or the appellate court and it is not permissible for us to go into such a fresh issue in this review application, first time. In view of this we do not find any merit in the contentions of the applicant and review application is, therefore, liable to be rejected". This Court referred to Article 144 of the Constitution and observed that it was imperative for the High Court to have decided the questions that it was required to be decided by the earlier order of this Court. The order of the High Court was set aside and the review petition was directed to be restored on the file of the High Court by this Court once again stating "the High Court shall scrupulously follow the requirements of the (earlier) order of this Court." In Bharat Earth Movers v. Commission of Income Tax, Karnataka - the Supreme Court seized of a hearing in a matter had issued a direction to the Income-tax Appellate Tribunal to frame a supplementary statement of case so as to enable this Court to appreciate the facts correctly and in that light to settle the law. The Tribunal was remiss in compliance. On this being brought to the notice of the Court, this Court observed -- "Article 144 of the Constitution obliges all authorities, civil and judicial, in the territory of India to act in aid of the Supreme Court. Failure to comply with the directions of this Court by the Tribunal has to be deplored. We expect the Tribunal to be more responsive and more sensitive to the directions of this Court. We leave this aspect in this case by making only this observation."
22. In Assistant Collector of Central Excise Chandan Nagar, West Bengal v. Dunlop India Ltd. and Ors. - this Court reiterated a few observations from an earlier case (Siliguri Municipality v. Amalendu Das - which read as -"We mean no disrespect to the High Court in emphasizing the necessity for self-imposed discipline in such matters in obeisance to such weighty institutional considerations like the need to maintain decorum and comity. So also we mean no disrespect to the High Court in stressing the need for self-discipline on the part of the High Court in passing interim orders without entering into the question of amplitude and width of the powers of the High Court to grant interim relief." Referring to what was said in Cassell & Co. Ltd. v. Broome - (1972) 1 All England Reports 801 the Court said -- We hope it will never be necessary for us to say so again that "in the hierarchical system of courts" which exists in our country, "it is necessary for each lower tier", including the High Court, "to accept loyally the decisions of the higher tiers". "It is inevitable in hierarchical system of courts that there are decisions of the Supreme Appellate Tribunal which do not attract the unanimous approval of all members of the judiciary.....But the judicial system only works if someone is allowed to have the last word and that last word, once spoken, is loyally accepted." The better wisdom of the court below must yield to the higher wisdom of the court above. That is the strength of the hierarchical judicial system." Though qualifying its statement by the expression "it is needless to add", yet the court felt the need of adding in its judgment that under Article 144 all authorities, civil and judicial (High Courts included) in the territory of India shall act in aid of the Supreme Court.
23. We are inclined to extract and reproduce a very instructive passage, apposite to the context, from the judgment by a Constitution Bench headed by Chief Justice Chandrachud in State of Punjab and Ors. v. Jagdev Singh Talwandi -- . The excerpt is self explanatory of factual backdrop and is as under-- "We would like to take this opportunity to point out that serious difficulties arise on account of the practice increasingly adopted by the High Courts, of pronouncing the final order without a reasoned judgment. It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement. Suppose, for example, that a final order without a reasoned judgment is announced by the High Court that a house shall be demolished, or that the custody of a child shall be handed over to one parent as against the other, or that a person accused of a serious charge is acquitted, or that a statute is unconstitutional or, as in the instant case, that a detenu be released from detention. If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented. The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment. It may be thought that such orders are passed by this Court and therefore this is no reason why the High Courts should not do the same. We would like to point out respectfully that the orders passed by this Court are final and no appeal lies against them. The Supreme Court is the final court in the hierarchy of our courts. Besides, order without a reasoned judgment are passed by this Court very rarely, under exceptional circumstances. Orders passed by the High Court are subject to the appellate jurisdiction of this Court under Article 136 of the Constitution and the other provisions of the concerned statues. We thought it necessary to make these observations in order that a practice which is not very desirable and which achieves no useful purpose may not grow out of its present infancy."
24. The Supreme Court, exercising its appellate jurisdiction, is called upon to issue directions which is not only its privilege as appellate forum but often a necessity for meeting the demands of justice and effective exercise of appellate power. Yet, it cautiously abstains from issuing any 'directions' as such and rather uses the alternative and polite expressions like -- "we request the High Court", "the High Court is expected to", "we trust and hope that the High Court will/shall", spelled out by courtesy and the respect and regards which the Supreme Court has -- and must have -- for High Courts. The practice has developed and gained ground as tradition. Barring may be an instance or two, which too must have been avoidable, there has been no occasion either for any disrespect having been shown by the Supreme Court to the High Court or vice versa or for this Court having been called upon to take cognizance of any instance of disrespect shown to it by any High Court.
25. Harry T. Edwards, Chief Judge, U.S. Court of Appeals for the D.C. Circuit emphasises self-restraint as helping build up the Courts constitutional legitimacy overtime inasmuch as judicial self-restraint helps both to generate and to preserve judicial independence. In the context of dealing of judges by judges, he uses the term 'collegiality' and then he mentions the relationship between collegiality and independence by saying --
".....an aspect of judicial practice that has seemed increasingly important to me over the last decade: the practice of collegiality. By collegiality I mean an attitude among judges that says, we may disagree on some substantive issues, but we all have a common interest and goal in getting the law right. ...... We are, in a word, one another's colleagues. An attitude of collegiality means, in practice, that we respect one another's views, listen to one another, and, where possible, aim to identify areas of agreement. ....... Collegiality does mean, however, that, even when I disagree with another judge, I recognize that we are part of a common endeavor, and that each of us is, almost always, acting In good faith according to his or her own view of what the law requires. ....... Because I see myself as engaged in a common endeavor with my judicial colleagues, it follows that I have the interests of the judiciary as a whole at heart. ........ When there is little or no judicial collegiality, there is less incentive for judges to exercise self-restraint. ....... collegiality is important not only for working together effectively, but also at a deeper structural level. An attitude of judicial collegiality helps reinforce judges' incentives to behave in a principled and responsible fashion. I think that any discussion of judicial independence, either at the level of institutions or individuals, should take this practice of collegiality into account." (See -- Judicial Norms: A Judge's Perspectives - Washington University School of Law).
26. We would end our this discussion by quoting what Oliver Wendell Holmes Jr. nearing his 60th birthday, and unaware that he was shortly to be elevated from the office of Chief Justice of Massachusetts to the Supreme Court of the United States said --
"I ask myself, what is there to show for this half lifetime that has passed? I look into my book in which I keep a docket of the decisions of the full court which falls to me to write, and find about a thousand cases. A thousand cases, many of them upon trifling or transitory matters, to represent nearly a half a lifetime. A thousand cases when one would have liked to study to the bottom and say his say on every question which the law has presented ... I often imagine Shakespeare or Napoleon summing himself up and thinking: 'Yes, I have written 5,000 lines of solid gold and a good deal of padding, who would have covered the Milky Way with words that outshone the stars'. We are lucky enough if we can give a sample of our best and if in our hearts we can feel that it has been nobly done." (Extracted and cited by J.H. Wootten, "Creativity in the Law" (1972) 4 Aust J Forensic Sciences, at 107)
27. Cooperation can be achieved and tension avoided between two judicial Institutions if only judicial collegiality is learnt, nobility prevails and Holmes' humility rules.
28. The constitutional jurist H.M. Seervai in his work 'Constitutional Law of India, Fourth Edition, Silver Jubilee Edition, Vol.3, in para 25.481) refers to the "values" of our Constitution and says -- "the word 'values' in plural means one's principles or standard, one's judgment and what is available as important in life". However, the interpretation of the provisions of our Constitution cannot fluctuate with the different values in which different Judges believe. Seervai quotes B.N. Rau, the eminent constitutional advisor and states--"the only values which can be said to underlie our Constitution is best expressed in the Preamble to the draft Constitution presented to the Constituent Assembly by Sir B.N. Rau, its eminent Constitutional Adviser. It ran: "We, the people of India, seeking to promote the common good, do hereby, through our chosen representatives, enact, adopt and give to ourselves this Constitution". In our opinion, it is the concept of the common good which ought to guide us -- as institutions and as individuals -- in testing times.
29. While quoting the several authorities and references as hereinabove we should not be misunderstood as calling 'the Supreme Court a superior Court and the High Court an inferior court'; all that we wish to say is that jurisdictionally, and in the hierarchical system, so far as the exercise of appellate jurisdiction is concerned, undoubtedly the Supreme Court is a superior forum and the High Court an inferior forum in the sense that the latter is subjected to jurisdiction, called 'appellate jurisdiction', of the former.
30. The very existence of appellate jurisdiction obliges the lower jurisdiction to render all of its assistance to the higher jurisdiction to enable the exercise of appellate jurisdiction fully and effectively. The lower forum may be called upon to certify its record of case and proceedings to the superior forum. The superior forum may stand in need of some information which being in the possession or knowledge of the subordinate forum, shall have to be made available only by it. The superior forum may issue a stay order or restraint order or may suspend, expedite or regulate the proceedings in the subordinate forum. During or at the end of exercise of the appellate jurisdiction any direction made by the higher forum shall have to be complied with by the lower forum, otherwise the hierarchy becomes meaningless.