Lesson 23: The Judiciary

Section 1: The Unified Judicial Framework & Composition of the Supreme Court

Core Concept & Simple Definition

The Constitution of India establishes a single integrated and unified judicial system for the entire country, featuring a single hierarchy of courts with the Supreme Court of India standing at the apex as the highest court of the land and final interpreter of the Constitution.

Clear Explanation in Basic Words

India is characterised as a federal Constitution because it divides governmental powers between the Central and State Governments through a written supreme document. However, constitutional language is complex and susceptible to conflicting interpretations. When disputes arise between the Centre and constituent States, or among States inter se, an impartial arbiter is essential to preserve constitutional supremacy. This vital function is entrusted to the Supreme Court of India.

Composition and Numerical History

The Supreme Court of India consists of the Chief Justice of India and other Judges. Parliament is empowered to increase this strength by law:

• Originally (1950): Seven Judges excluding the Chief Justice.
• 1977 Expansion: Increased to 17 Judges excluding the Chief Justice.
• 1986 Expansion: Increased to 25 Judges excluding the Chief Justice.
• 2009 Statutory Strength: Fixed at 31 Judges including the Chief Justice of India (Chief Justice and 30 other Judges).

Appointment Procedure under Article 124(2)

Judges of the Supreme Court are appointed by the President "after consultation with such judges of the Supreme Court and of the High Courts as the President may deem necessary". In the appointment of any judge other than the Chief Justice, consultation with the Chief Justice of India is legally obligatory:

Appointment of the Chief Justice & The 1973 Supersession Exception

By established convention, the senior-most sitting Judge of the Supreme Court is appointed Chief Justice of India. However, on April 25, 1973, this convention was broken when the Government appointed Justice A.N. Roy, superseding three of his senior colleagues. This action drew widespread criticism for arbitrariness and undermining judicial independence.

To eliminate such controversies, the National Front Government's Law Minister, Dinesh Goswami, introduced a bill in the Lok Sabha in 1990 to establish a National Judicial Commission to recommend appointments and transfers; however, the Constitutional Amendment Bill lapsed upon the dissolution of the Lok Sabha.

Qualifications, Tenure, and Impeachment (Article 124)

• Qualifications: A candidate must be a citizen of India and:
  1. Has been a Judge of a High Court for at least five (5) years; or
  2. Has been an advocate of a High Court for at least ten (10) years; or
  3. Is, in the opinion of the President, a distinguished jurist (academic or non-practising lawyers are eligible, though none has been appointed so far).
• Tenure & Oath: Takes an oath under the Third Schedule before the President. Holds office until completing the age of 65 years.
• Removal Procedure (Article 124(4) & (5)): A Judge can be removed only by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members present and voting in the same session on the ground of "proved misbehavior or incapacity". Misbehaviour includes criminal misconduct under the Prevention of Corruption Act.
• Post-Retirement Bar: Retired Judges are prohibited from practising law before any Court in India (Article 124(7)).
• Acting and Ad Hoc Judges: The President appoints an Acting Chief Justice under Article 126. When quorum is deficient, the Chief Justice of India, with previous consent of the President and consultation with the concerned High Court Chief Justice, can appoint High Court judges as Ad hoc Judges (Article 127) or invite retired judges (Article 128).
• Seat: Located in Delhi under Article 130, though the Chief Justice may sit elsewhere with the President's prior approval.

Section 2: Powers and Multi-Tier Jurisdiction of the Supreme Court

Core Concept & Court of Record (Article 129)

Under Article 129, the Supreme Court is a Court of Record. Its proceedings, acts, and decisions are preserved for perpetual memory and evidentiary presentation. Its records cannot be questioned for authenticity in any court, and it holds summary power to punish for contempt of itself (though fair and reasonable criticism of judicial acts in the public interest does not constitute contempt).

A. Original Jurisdiction (Article 131)

Original Jurisdiction is the power to hear and determine a dispute in the first instance. The Supreme Court holds exclusive original jurisdiction over federal disputes:

• Between the Government of India and one or more States;
• Between the Government of India and one or more States on one side and one or more States on the other; or
• Between two or more States.

Statutory Limitations: The dispute must involve a question of law or fact upon which a legal right depends (excluding political questions). The Court cannot entertain suits brought by private individuals against the Government of India under Article 131. It explicitly excludes pre-constitutional treaties/agreements, inter-State water disputes (Article 262), Finance Commission references (Article 280), and adjustments of expenses/pensions between Union and States (Article 290). Under Article 139A, the Supreme Court may withdraw cases involving important legal questions from High Courts to itself or transfer cases between High Courts.

B. Appellate Jurisdiction (Articles 132–136)

The Appellate Jurisdiction extends across constitutional, civil, and criminal realms:

1. Civil Appeals (Article 133): Lies from any judgment or final order of a High Court if certified under Article 134A that a substantial question of law of general importance is involved and requires Supreme Court adjudication. A certificate cannot be granted on mere questions of fact.
2. Criminal Appeals (Article 134): An appeal lies as of right if the High Court has reversed an acquittal and sentenced the accused to death, or withdrawn a case from a subordinate court, convicted the accused, and awarded a death sentence.
3. Abolition of Federal Court: Prior to 1950, the Federal Court established by the Government of India Act 1935 heard appeals. Article 135 vests all erstwhile Federal Court powers in the Supreme Court.
4. Special Leave to Appeal (Article 136): An extraordinary discretionary power allowing the Supreme Court to grant special leave against any judgment, decree, sentence, or order passed by any court or tribunal in India, excluding military courts. Granted only where there is gross miscarriage of justice or patent error of law.

C. Advisory Jurisdiction & Miscellaneous Powers

• Advisory Function (Article 143): The President may seek the opinion of the Supreme Court on any question of law or fact of public importance. The opinion is purely advisory; the President is free to follow or discard it, and the Court may decline to answer depending on the case.
• Review Power (Article 137): The Court holds exceptional power to review its own judgments when a grave error is established.
• Complete Justice (Article 142): The Court can pass decrees or orders necessary to do complete justice, enforceable throughout India.
• Binding Precedent & Subordination (Articles 141 & 144): Law declared by the Supreme Court is binding on all courts in India (Article 141), and all civil and judicial authorities are duty-bound to act in aid of the Supreme Court (Article 144).

Section 3: Judiciary as Guardian of the Constitution & Protector of Fundamental Rights

Core Concept & Constitutional Position

The judiciary intervenes whenever Fundamental Rights (Part III) are breached by any individual, authority, or the State. Dr. B.R. Ambedkar hailed Article 32 as the most important provision, declaring: "It is the very soul of the Constitution and the very heart of it."

Mechanics of Article 32

• Article 32(1): Guarantees the fundamental right to move the Supreme Court by appropriate proceedings for enforcement of Part III rights.
• Article 32(2): Empowers the Court to issue directions, orders, or writs—namely Habeas Corpus, Mandamus, Prohibition, Quo-warranto, and Certiorari.
• Article 32(3) & (4): Parliament may empower lower courts with writ powers; the right to move the Supreme Court cannot be suspended except as provided by the Constitution.

Comparative Scope: Article 32 vs. Article 226

Both the Supreme Court (Article 32) and the High Courts (Article 226) possess writ-issuing authority. However, the writ jurisdiction of the High Court is structurally wider than that of the Supreme Court:

Section 4: Public Interest Litigation (PIL) & Judicial Activism

Core Concept & Simple Definition

Public Interest Litigation (PIL) is a strategic arm of the legal aid movement designed to bring justice within the reach of the poor masses by granting access to courts to those unable to approach them due to socio-economic disabilities.

Relaxation of Locus Standi (S.P. Gupta Case)

Under the orthodox Anglo-Saxon doctrine of locus standi, only a person whose own legal rights were violated could seek judicial redress. In the landmark S.P. Gupta v. Union of India (The Judges Case), Justice P.N. Bhagwati discarded this barrier:

The New Rule: When the rights of an individual or class are violated and they cannot approach the court due to poverty or disability, any public-spirited individual or institution acting in good faith (and not for personal gain, private profit, or political motivation) can move the court. The court can even treat an informal letter as a writ petition (epistolary jurisdiction).

Landmark PIL Precedents Detailed in the Textbook

• Hussainara Khatoon v. State of Bihar (1979): The first reported PIL, filed by an advocate based on news reports describing undertrial prisoners languishing in Bihar jails. It resulted in the release of over 40,000 undertrial prisoners and established the Right to Speedy Justice as a basic Fundamental Right.
• Nilabati Behra v. State of Orissa (1993): Articulated compensatory jurisprudence under public law. In a PIL alleging the custodial death of a 22-year-old boy in police custody, the Supreme Court held the State strictly liable for violating fundamental rights and awarded Rs. 1,50,000 as compensation to the deceased boy's mother.
• Bandhua Mukti Morcha v. Union of India: An organization dedicated to bonded labourers sent a letter to the Supreme Court detailing inhuman conditions in stone quarries in Faridabad District, Haryana. The Court treated the letter as a writ petition, appointed a Commission of Inquiry, and ordered the release and rehabilitation of all bonded labourers.

Judicial Activism: Concept and Institutional Tensions

Judicial Activism is a layman's term describing the judiciary's proactive role in initiating policies and giving directions to dispense justice where the legislative and executive organs have displayed inefficiency or lukewarm efforts. While criticized by the executive and legislature for overstepping its arena, judicial activism ensures that procedural technicalities do not obstruct justice in a Welfare State.

Section 5: High Courts and the Subordinate Judicial Architecture

Constitutional Framework of High Courts

Under Article 214, there is a High Court for each State; Parliament may establish a common High Court for two or more States and a Union Territory under Article 231 (e.g., Punjab and Haryana sharing a High Court at Chandigarh, and the seven North-Eastern States under the Guwahati High Court). Every High Court is a Court of Record with contempt powers (Article 215).

Appointment, Qualifications, and Tenure

• Appointment: The Chief Justice of a High Court is appointed by the President after consulting the Chief Justice of India and the Governor of the State. Other Judges are appointed after additionally consulting the Chief Justice of the concerned High Court.
• Qualifications: Citizen of India who has held a Judicial Office for ten (10) years in India, OR has been an advocate of a High Court for at least ten (10) years.
• Tenure & Removal: Holds office until completing 62 years of age. Removed by the President in the exact same manner and grounds (proved misbehaviour or incapacity) as a Supreme Court Judge.
• Post-Retirement Restriction: Cannot plead before the High Court from which they retired or its subordinate courts, but can practise in other High Courts and the Supreme Court.
• Transfers (Article 222): The President may transfer a High Court Judge after consulting the Chief Justice of India.

High Court Jurisdictional Powers

• Superintendence (Article 227): Holds administrative and judicial superintendence over all courts and tribunals throughout its territorial jurisdiction, excluding Armed Forces tribunals.
• Withdrawal of Cases (Article 228): Can withdraw any case from a subordinate court involving a substantial question of constitutional law to decide it or determine the legal point.
• Administrative Autonomy (Article 229): The Chief Justice of the High Court controls staff appointments and service conditions; salaries are charged upon the Consolidated Fund of the State.

The Subordinate Courts Framework

Subordinate courts operate under a strict hierarchy beneath the High Court:

1. District Judges (Article 233): Appointed by the Governor in consultation with the High Court. An advocate requires at least seven (7) years of practice at the bar to be eligible.
2. Other Judicial Officers (Article 234): Appointed by the Governor in accordance with rules made after consulting the State Public Service Commission and the High Court.
3. Administrative Control (Article 235): The High Court exercises total administrative control over District Courts and subordinate courts, including postings, promotions, and grant of leave.