Rules of Court, etc.

Article 121, Draft Constitution of India 1948

(1) Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including-

(a) Rules as to the persons practising before the court,

(b) Rules as to the procedure for hearing appeals and other matters including the time within which appeals to the Court are to be entered and the time to be allowed to advocates appearing before the court to make their submissions in respect thereof,

(c) Rules as to the costs of and incidental to any proceedings in the court and as to the fees to be charged in respect of proceedings therein,

(d) Rules as to the granting of bail,

(e) Rules as to stay of proceedings, and

(f) Rules providing for the summary determination of any appeal which appears to the court to be frivolous or vexatious or brought for the purpose of delay.

(2) The minimum number of judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution, or for the purpose of hearing any reference under article 119 of this Constitution shall be five:

Provided that it shall be open to every judge to sit for the said purposes unless owing to illness, personal interest or other sufficient cause he is unable to do so.

(3) No opinion for the purpose of any report under article 119 of this Constitution and no judgment shall be delivered by the Supreme Court save in open court.

(4) No such report shall be made and no judgment shall be delivered by the Supreme Court save with the concurrence of a majority of the judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a judge who does not concur from delivering a dissenting opinion or judgment.

(1) Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including—

(a) rules as to the persons practising before the Court;
(b) rules as to the procedure for hearing appeals and other matters pertaining to appeals including the time

within which appeals to the Court are to be entered;

(c) rules as to the proceedings in the Court for the enforcement of any of the rights conferred by Part III;

(d) rules as to the entertainment of appeals under sub-clause (c) of clause (1) of article 134;

(e) rules as to the conditions subject to which any judgment pronounced or order made by the Court may be reviewed and the procedure for such review including the time within which applications to the Court for such review are to be entered;

(f) rules as to the costs of and incidental to any proceedings in the Court and as to the fees to be charged in respect of proceedings therein;

(g) rules as to the granting of bail;

(h) rules as to stay of proceedings;

(i) rules providing for the summary determination of any appeal which appears to the Court to be frivolous or vexatious or brought for the purpose of delay;

(j) rules as to the procedure for inquiries referred to in clause (1) of article 317.

⁠(2) Subject to the provisions of clause (3), rules made under this article may fix the minimum number of Judges who are to sit for any purpose, and may provide for the 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 a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under article 143 shall be five:

⁠Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the

Draft Article 121 (Article 145) was debated on 6th June 1949. It authorised the Supreme Court to make rules for its functioning.

One member suggested that clause (1) be amended to remove the requirement that court seek the approval of the President before adopting any rules. He argued that the rules pertained to the ‘internal functioning’ of the court, and hence the requirement amounted to executive interference with the functioning of the judiciary. This received the support of several members in the Assembly; it was noted that the High Court was not required to obtain the consent of the Governor when making similar rules. In response, another member argued that the Draft Article already provided that the rule-making power of the Supreme Court was subject to laws passed by Parliament, and hence the requirement of presidential approval was a ‘safety valve’ for the judiciary. The Chairman of the Drafting Committee pointed out that the requirement was analogous to existing provisions under the Government of India Act, 1935. He also clarified that the purpose was to ensure that rules did not impose an undue burden on the exchequer.

A member of the Drafting Committee proposed the insertion of the following as sub-clause (bb):

‘rules as to the procedure for the review of any judgment pronounced or order passed by the Court including the time within which applications to the Court for such review are to be entered;’

He stated that this amendment was a necessary corollary to the court’s power to make rules relating to its ability to review its own judgments.

Another member of the drafting committee proposed the substitution of Clause (2) as follows:

‘(2) Subject to the provisions of the next succeeding clause, rules made under this article may fix the minimum number of judges who are to sit for any purpose, and may provide for the powers of single judges and Division Courts.

(2a) The minimum number of judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution, or for the purpose of hearing any reference under article 119 of this Constitution shall be five:

Provided that where the Court hearing an appeal under article 111 of this Constitution consists of less than five judges and in the course of the hearing of the appeal the court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal such court shall refer the question to a court constituted under this clause for opinion and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.‘

He argued that the proviso was necessary to ensure that the court’s time was not wasted by forcing a five judge bench to hear a matter for which a three-judge bench was sufficient. This amendment received the support of the Chairman of the Drafting Committee.

The Chairman of the Drafting Committee proposed two amendments: firstly, to mandate the court to only deliver judgments in open court; and secondly, to prevent the court from delivering any judgment without the concurrence of the majority.

With the exception of the amendment to remove the requirement of presidential approval, all other amendments were accepted by the Assembly. Draft Article 121 was adopted on 6th June 1949.