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Chapter 1: Judiciary

In 1979, a lawyer named Kapila Hingorani read a newspaper report about the jails of Bihar. It described men and women who had been locked up while waiting for their trial to begin — and who were still waiting, years later. Some had been inside longer than the maximum sentence they would have received had they been convicted. They were poor. They could not afford a lawyer. Nobody had come to court for them, so nobody had noticed. She did something that, at the time, was unusual. She was not one of the prisoners. Nothing had been done to her. Yet she filed a petition in the Supreme Court of India under Article 32 on their behalf, and the Court agreed to hear it. A bench led by Justice P.N. Bhagwati held that a trial delayed this long was no trial at all, that the right to a speedy trial was part of the right to life and personal liberty under Article 21, and that a person too poor to hire a lawyer must be given one at the State’s expense. Thousands of undertrial prisoners walked out of jail. A newspaper report had become a court order — because a court was willing to listen to someone who was not the victim.

Fig. 1.0

Fig. 1.0 – The origin of Public Interest Litigation.

NoteCuriosity Corner

Q1. How can a stranger file a case in court for someone she has never met? Q2. What happens to a person who has to face a criminal trial but cannot afford a lawyer? Q3. If a dispute begins in a small town, how does it ever reach the Supreme Court in Delhi? Q4. What stops a judge from being punished or transferred for deciding a case against the government? Q5. Can Parliament pass a law that takes away the Court’s power to protect our fundamental rights?

You cannot answer these questions yet. By the end of this chapter, you will be able to answer every one of them.

1.1 Structure and Hierarchy of Courts in India

The Constitution of India lays down the framework of the country’s judicial system. India follows a federal system of government, which means that the power to make laws is divided between the Centre and the States. Parliament legislates on some subjects, State legislatures on others, and both on a few shared subjects.

You might expect that a country which splits its law-making power in two would also split its courts in two — one set of courts for Central laws and another for State laws. That is exactly what happens in some federations, such as the United States. India chose differently.

Our Constitution establishes a single integrated judiciary: one connected chain of courts that administers both Central and State laws. The Supreme Court sits at the top, High Courts below it at the State level, and district and subordinate courts below them. A district court in Rajasthan therefore applies a law made by Parliament and a law made by the Rajasthan legislature in the same courtroom, on the same day, without any difficulty about which court is competent to do so.

The reason for this choice is practical. A single hierarchy means one final interpreter of the law for the whole country, which keeps the law uniform and prevents the confusion of one set of courts contradicting another. It also means an ordinary litigant does not have to first work out which judicial system her dispute belongs to before she can file a case at all.

Alongside this chain of courts, the Constitution and Parliament have created specialised tribunals to decide sector-specific claims — labour disputes, consumer complaints, service matters of government employees. These do not replace the courts; they supplement them. Tribunals are taken up in detail later in this chapter.

The full hierarchy, from the Supreme Court down to the Munsif Court, is shown in Fig. 1.1. Study the two branches carefully — notice that the civil and criminal sides run parallel to each other all the way down.

Fig. 1.1

Fig. 1.1 – Hierarchy of courts in India.

1.1.1 The Supreme Court of India

The Supreme Court of India came into being on 28 January 1950, two days after the Constitution took effect. It replaced two institutions of the colonial era that had stood at the apex of the Indian court system: the Federal Court of India, and the Judicial Committee of the Privy Council, which had sat in London and heard final appeals from India.

That second replacement mattered a great deal. Until 1950, the last word on an Indian dispute could be spoken by judges sitting several thousand kilometres away, appointed by a foreign government. From 1950, the last word belonged to a court in New Delhi, established by a Constitution that Indians had given themselves.

The Constitution as it stood in 1950 provided for a Supreme Court with a Chief Justice and seven judges — eight in all. The framers did not fix this number permanently. They granted Parliament the power to increase the strength of the Court as the volume of work grew, so that the size of the Court could follow the needs of the country without requiring a constitutional amendment each time.

Parliament has used that power repeatedly. At present the sanctioned strength of the Supreme Court is 34 judges, including the Chief Justice of India.

The Supreme Court (Number of Judges) Act, 1956 originally fixed the maximum number of Supreme Court judges, excluding the Chief Justice of India. The Supreme Court (Number of Judges) Amendment Act, 2019 raised that figure to 33, which — counting the Chief Justice — gives the Court its present strength of 34. Each such increase has been a response to the same pressure: a rising number of cases and a growing backlog.

1.1.2 High Courts

India has 25 High Courts at the State and Union Territory level. A High Court may have jurisdiction over a single State, over a Union Territory, or over a group of States and Union Territories together — the Bombay High Court, for instance, covers Maharashtra along with Goa and certain Union Territories.

The word jurisdiction will recur constantly in this chapter, so fix its meaning now. Jurisdiction is simply the legal authority of a court to hear and decide a particular matter. A court without jurisdiction over your dispute cannot help you, however strong your case may be.

NoteDefinition

Jurisdiction is the authority given by law to a court to hear and decide a case. It may be limited by the subject matter of the dispute, by the geographical area in which the dispute arose, or by the amount of money claimed.

Below each High Court lies a hierarchy of lower courts, functioning as civil courts and criminal courts, along with the specialised tribunals.

The Madras High Court at Chennai, the Bombay High Court at Mumbai, the Calcutta High Court at Kolkata and the Allahabad High Court at Allahabad are the first four High Courts in India. The Andhra High Court and the Telangana High Court are the newest, established on 1 January 2019 in accordance with the Andhra Pradesh Reorganisation Act, 2014.

1.1.3 District and Subordinate Courts

The courts that function below the High Courts are popularly known as the subordinate judiciary. They comprise the district courts and the subordinate courts.

Each State is divided into judicial districts, and each judicial district is presided over by a District and Sessions Judge. This is one officer wearing two labels. The same judge is called a District Judge when presiding over a civil case, and a Sessions Judge when presiding over a criminal case. Where the district court sits in a city that the State government has designated a metropolitan area, the judge is called a Metropolitan Sessions Judge. Depending on the workload of the district, District Judges may work alongside Additional District Judges.

If a District Judge and a Sessions Judge can be the same person, why does the law bother with two names? Because the two roles run under different procedures and different sets of rules — one for civil disputes, one for criminal trials — and the title tells you at once which body of procedure the court is applying to the matter before it.

The District Judge is the highest judicial authority below a High Court judge. The district court is not only a court of first instance; it also holds appellate jurisdiction over the subordinate courts below it, meaning it can hear appeals against their decisions, and it exercises supervision over them.

Below the district court, the courts on each side run in their own ladder. On the civil side, in ascending order, they are the Junior Civil Judge Court, the Principal Junior Civil Judge Court and the Senior Civil Judge Court (also called sub-Courts). On the criminal side, in ascending order, they are the Second Class Judicial Magistrates Court, the First Class Judicial Magistrate Court and the Chief Judicial Magistrate Court.

Subordinate courts on the civil side vs the criminal side

Basis Civil side Criminal side
Nature of matter Disputes between private parties over rights, property, money, contracts Offences prosecuted by the State against an accused person
Court at the top of the district District Court (District Judge) Sessions Court (Sessions Judge)
Courts below it, in ascending order Junior Civil Judge Court → Principal Junior Civil Judge Court → Senior Civil Judge Court (sub-Court) Second Class Judicial Magistrates Court → First Class Judicial Magistrate Court → Chief Judicial Magistrate Court
Lowest court in the ladder District Munsiff Court Second Class Judicial Magistrates Court

Apart from the subordinate courts, District Munsiff Courts also form part of this hierarchy. They are the lowest in order among courts handling matters of a civil nature and function below the subordinate courts. They are usually controlled by the District Court of the respective district.

Every civil court in this ladder can hear money claims only up to a certain value. That limit is called its pecuniary limit, and these limits are notified by the respective State Governments. This is why a small claim over an unpaid deposit does not begin in the High Court and a large commercial dispute does not begin in a Munsiff Court — the value of the claim itself decides where the case must start.

1.2 Salient Features of the Indian Judiciary

Two features shape the Indian judiciary more than any others. The first concerns where our law comes from. The second concerns how a case is actually conducted once it reaches a courtroom. Both were inherited from British practice, and both explain a great deal about why Indian courts behave the way they do.

1.2.1 India as a Common Law Jurisdiction

Taking its precedence from the British tradition of common law, India has adopted a similar model. Under this scheme, the decisions, orders and judgments developed by judges help in the creation and development of laws and legal principles.

The key consequence is this: a judgment is not merely the settlement of one dispute between two parties. Once a higher court decides a point of law, that decision becomes a binding precedent for all subordinate courts in the hierarchy. The next judge faced with the same legal question is not free to start afresh — she must follow what the higher court has already laid down.

NoteDefinition

A precedent is a decision of a higher court on a point of law which lower courts in the same hierarchy are bound to follow when the same point arises again.

Consider why a legal system would want this. If every judge could decide the same question differently, two people in identical situations could receive opposite results depending on which courtroom they walked into. Precedent removes that arbitrariness. It also lets a citizen — and her lawyer — predict with some confidence what the law will do, which is what makes it possible to plan one’s affairs at all.

Precedent does something else as well. Legislatures cannot foresee every situation, and there are gaps in the law where no statute speaks. There are also situations where a law is needed but the legislature or the executive has simply not acted. Courts play a vital role in creating law in precisely those spaces. Thus, apart from administering civil and criminal justice, courts and judges serve a vital function in the federal set-up of the country.

Opposed to this model is the civil law system, followed in countries such as Germany, Russia and Continental Europe. The main difference between common law and civil law is with respect to the source of law. Under common law, the judiciary can make law through the judicial decisions of courts. Under civil law, only the legislature or the executive has the power to create laws and rules; the judge’s task is confined to applying the written code to the facts.

Common law system vs Civil law system

Basis Common law system Civil law system
Source of law Statutes, and judicial decisions which themselves make law Written codes enacted by the legislature or executive
Role of the judge Interprets the law and also develops it through binding decisions Applies the code to the facts; does not create law
Status of a past judgment Binding precedent on lower courts Persuasive at most; not a source of law
Countries following it India, United Kingdom Germany, Russia, Continental Europe

This salient feature — India’s following of a common law model — further strengthens the role of courts in India. It is the reason a Supreme Court judgment can change the legal position of the entire country overnight, without Parliament passing a single line of new law.

1.2.2 Adversarial Model of Dispute Resolution

Courts in India follow the adversarial system of adjudication, as opposed to the inquisitorial model followed in several civil law countries.

In an adversarial model, the role of the lawyers representing the parties becomes vital. Lawyers of the opposing parties present their cases before a neutral judge, who in turn provides a decision based on the merits of the case as presented by the lawyers. The judge does not go looking for evidence. She sits as an umpire between two contesting versions of the truth, and decides which side has made out its case on the material placed before her.

The reasoning behind this arrangement is that a judge who has personally investigated a matter may find it difficult to remain neutral about what her own investigation turned up. Keeping the judge away from the gathering of evidence is meant to keep her impartial when the time comes to weigh it.

In the inquisitorial system, on the other hand, judges are far more pro-active in adjudicating the matter. Rather than acting as neutral judges, they have the right to inquire and probe into the matter, much like the police. Here the role of the lawyers representing the parties and the role of the judge cumulatively become important in determining the manner in which a civil case or a criminal trial proceeds.

Adversarial system vs Inquisitorial system

Basis Adversarial system Inquisitorial system
Role of the judge Neutral; decides on the merits as presented Pro-active; may inquire and probe into the matter
Role of the lawyers Central — they build and present the entire case Shared with the judge, who directs the course of the inquiry
Gathering of evidence Done by the parties The judge may also direct and conduct it
Where followed India, and other common law countries Several civil law countries

The choice of model has a direct effect on what a student of law must learn to do. In an adversarial system, a case is won or lost on how well the relevant facts are identified, marshalled and argued. A point that is never raised is a point the judge will usually never consider — which is why the ability to spot the legally relevant fact in a mass of ordinary facts is the single most valuable skill this subject can teach you.

1.4 Independence of the Judiciary

The judiciary in India derives its powers and functions from the Constitution, which till date remains the fundamental legal text for the functioning of Indian democracy. Every power a court exercises — to hear a case, to strike down a law, to order a government to act — can be traced back to a provision of that document.

Article 50 of the Indian Constitution lays down the rule of independence of the judiciary, directing that the judiciary be kept separate from the executive. It is a Directive Principle of State Policy, which means it is a standing instruction to the State rather than a right a citizen can enforce in court — but the entire structure of protections described in this section has been built around it.

Independence of the judiciary is understood as the judiciary’s autonomous status, separate from the executive and legislative wings of the government. It helps in the maintenance of the rule of law, ensures good governance, and creates a free and fair society.

NoteDefinition

Independence of the judiciary means that courts and judges decide cases free from control, pressure or interference by the executive, the legislature, or any private power — and that their tenure, salary and conduct are protected so that such pressure cannot be applied.

The independent status of the judiciary and the roles to be performed by it can be understood as two sides of the same coin. The judiciary is given certain tasks; independence is what makes those tasks possible. Take the independence away, and the roles collapse — a court that can be punished for its judgments cannot honestly deliver them.

1.4.1 Why the Judiciary is Given a Special Status

First, the judiciary is the watch-dog of a democracy. It monitors and maintains the checks and balances over the other arms of the government. The judiciary emerges as a mediator whenever any organ of the government exercises ‘excess power’ that tends to violate a larger societal interest or an individual interest.

Consider the police. The Indian police have extensive powers for crime detection and for gathering evidence to prosecute criminals. It is common and entirely proper for the police to interrogate suspects in order to gather the best evidence of the crime. But such powers should not impinge upon the rights of the accused or the suspect. An accused cannot be coerced into giving a statement pointing to his or her own guilt.

the Constitution of India, Article 20(3) No person accused of any offence shall be compelled to be a witness against himself.

The judiciary steps in exactly where these delicate interests are at loggerheads. The line between the legitimate exercise of a State organ’s power and its excess is often a thin one, and drawing that line, case by case, is what makes the role of the judiciary vital.

Second, constitutional freedoms must be interpreted by someone free of external pressure. Freedoms such as the freedom to speak in public or to assemble peacefully must be interpreted in accordance with the true constitutional philosophy, and so the judiciary has been kept free from any external pressure. This becomes particularly important when the judiciary is interpreting a conflict between the government of the day and members of civil society who have peacefully articulated their opinions on a social issue — for example, on crime against women.

Notice the difficulty here. One party to the dispute is the government itself. If the government could decide the tenure or the salary of the judge hearing that dispute, the outcome would never be free of suspicion, however honest the judge happened to be. Independence protects the credibility of the decision, not merely the comfort of the judge.

Third, the judiciary acts as the guardian of fundamental rights granted by the Constitution to every citizen. Independence of the judiciary was carved out during the formation of the Indian Constitution, at a time when India was transitioning from a feudal to a democratic order. It was done to translate the well-knit provisions of the extensive rights guaranteed under the Constitution into the lives of average citizens. Our Constitution grants us rights such as:

  1. Civil and political rights — for example, the right to life, and the right to freedom from discrimination based on religion, race, caste, sex or place of birth.
  2. Economic, social and cultural rights — for example, the freedom to practise any religion, and the protection of the interests of minorities.

An independent and impartial judiciary has empowered Indian citizens and performed this role. The clearest illustration is the expanded meaning the Court has given to Article 21, which speaks in general terms of the right to life and personal liberty.

Within that freedom, the Supreme Court has held that a street vendor has a right to carry on his trade on the streets, because selling on the street is linked to his livelihood and daily living, which is protected under Article 21. Similarly, the Supreme Court has held that those who are aged, disabled and destitute — men and women alike — have a right to food, which is most essential for their survival, and that the State has a corresponding duty to provide it.

Both of these rights have been read into the general right under Article 21. That phrase is worth understanding, because it describes how a large part of Indian constitutional law now works. The drafters did not write the words ‘livelihood’ or ‘food’ into the list of enforceable fundamental rights. The Court, interpreting what a right to life must mean if it is to mean anything at all, held that these are contained within it. They are now available to citizens as matters of right. This has been possible only through the interpretive and rule-making function of the courts in India — and in performing it, the Court is doing precisely the job it was given at the time of the drafting of the Constitution.

Fourthly, independence of the judiciary is vital for respect for due process of law.

NoteDefinition

Due process of law means that the State must respect all the legal rights owed to a person, and must conform to the norms of fairness, liberty and fundamental rights, before depriving that person of life, liberty or property.

Only an independent judiciary can make this concept operational, because due process is a demand made upon the State, and only a body outside the State’s control can enforce it. In the domain of criminal law, independence of the judiciary is linked to the granting of a fair trial to the accused. This becomes extremely important even when the accused are foreign nationals, or persons who have committed crimes against the State, such as terrorists.

That last point often surprises students, so it is worth stating plainly. A fair trial is not a reward given to people we approve of. It is the method by which a court establishes whether the accusation is true at all. Abandon it for the accused we dislike, and it ceases to be available to anyone.

Therefore, independence of the judiciary remains a vital and core principle even in a modern democracy.

1.4.2 Provisions Relating to the Judges

Independence of the judiciary is not a matter of good intentions. It rests on concrete provisions, because independence of the individual judge is what ultimately secures independence of the institution. The following legal provisions mandate a judge’s independence and impartiality.

  1. Security of tenure. Once appointed, judges are provided with security of tenure till they reach the age of retirement. This age remains 62 years for High Court judges and 65 years for Supreme Court judges. Judges are not allowed to practise as advocates in the same or equivalent courts after their retirement. For example, a retired High Court judge may practise in the Supreme Court, but is prevented from practising in the same or any other High Court. This ensures that ex-judges practising at the bar do not influence the decisions of a bench with whom they may have a presumed familiarity.
  2. Difficulty of removal. Judges cannot be easily removed from office except for proven misbehaviour and incapacity. The legal process is kept stringent precisely in order to secure the tenure of judges.
  3. Protected salaries. The salaries and allowances of judges are fixed and are not subject to the vote of the legislature. Judges derive their salaries from the Consolidated Fund of India in the case of the Supreme Court, and from the Consolidated Fund of the State in the case of the High Courts. Their emoluments cannot be altered to their disadvantage except in the event of a financial emergency.
  4. Immunity of judicial conduct from discussion. The judicial conduct of judges has been kept immune from examination by other constitutional organs. The conduct of judges of both the Supreme Court and the High Courts cannot be discussed in Parliament or in a State legislature, except when a motion for the removal of a judge is being presented to the President.
  5. Control over its own establishment. The Supreme Court of India has been authorised to have its own establishment and to have complete control over it. It is further authorised to make appointments of the officers and staff of the court and to determine their service conditions.

Read these five together and a single design becomes visible. Each one removes a specific lever that the executive or the legislature might otherwise have used against a judge — the threat of dismissal, the threat of a pay cut, the threat of public censure in the House, control over the court’s own staff.

Why does the Constitution allow a judge’s emoluments to be reduced during a financial emergency, when it protects them at every other time? Because in a financial emergency the State’s ability to pay is itself in question, and the reduction then applies as part of a general emergency measure rather than as a penalty aimed at a particular judge for a particular judgment — which is the mischief the protection exists to prevent.

Q4. What stops a judge from being punished or transferred for deciding a case against the government?

A. A set of constitutional protections built around Article 50: a judge holds office until a fixed retirement age and cannot be removed except for proven misbehaviour or incapacity through a stringent process; her salary is charged on the Consolidated Fund and cannot be reduced to her disadvantage except in a financial emergency; her judicial conduct cannot even be discussed in Parliament or a State legislature except during removal proceedings; and the Supreme Court controls its own staff and establishment.

Therefore one can conclude that independence of the judiciary is not a courtesy extended by the government of the day. It is a constitutionally conferred protection.

1.5 Role of the Supreme Court of India

The Indian judiciary comprises the Supreme Court, the High Courts, the subordinate courts and other tribunals. The role of these courts, along with their composition, powers and procedures for functioning, has been elaborated in the Constitution.

The Supreme Court of India primarily exercises the role of an adjudicator and an interpreter. As an adjudicator it settles disputes; as an interpreter it says what the Constitution and the laws mean. Both roles are explained through the different jurisdictions vested in the Court, and each jurisdiction answers a different question: who may come to this Court, with what, and in what circumstances.

Fig. 1.2 sets out the jurisdictions covered in this section. Keep it beside you as you read, because the differences between them are exactly what examiners test.

Fig. 1.2

Fig. 1.2 – Jurisdictions of the Supreme Court of India.

1.5.1 Original Jurisdiction

The Supreme Court’s role as an adjudicator and interpreter can be understood first through the original jurisdiction vested in it. Original jurisdiction means the power to hear a dispute at the first instance — the case begins in the Supreme Court itself rather than travelling up to it on appeal.

Under Article 131 of the Constitution, the Supreme Court is granted original jurisdiction in disputes between the units of the Indian federation.

the Constitution of India, Article 131 Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute — (a) between 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 other States on the other; or (c) between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.

Read the provision carefully and three separate conditions emerge.

First, notice the words to the exclusion of any other court. No other court in India may entertain such a dispute at all. A quarrel between two State governments cannot be filed in a district court or a High Court.

Second, the dispute must involve some question of law or fact on which the existence or extent of a legal right can be adjudicated. A political disagreement between two governments, however bitter, is not enough. There must be a legal right at stake. For example, a dispute between two States over the sharing of river waters or other natural resources can be brought directly to the Supreme Court under its original jurisdiction, because each State asserts a legal entitlement to the resource.

Third, note the proviso. Disputes arising out of a treaty, agreement, covenant or similar instrument executed before the commencement of the Constitution and still in operation are excluded, as are disputes under instruments that themselves say this jurisdiction shall not apply. A proviso like this one is where marks are usually lost — students state the rule and forget that the Constitution itself carves an exception out of it.

1.5.2 Writ Jurisdiction under Article 32

Article 32 of the Constitution gives the Supreme Court a further and extensive original jurisdiction: the enforcement of the fundamental rights of citizens through directions, orders and writs. This is popularly known as the writ jurisdiction of the Court.

The Court is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, to enforce fundamental rights.

The five writs under Article 32

Writ What the Court orders Typical situation
Habeas corpus The release of a person who is unlawfully detained A person is held in custody without lawful authority
Mandamus A public authority to do its duty An officer refuses to perform a duty the law imposes on him
Prohibition A subordinate court to stop continuing with a case A lower court proceeds in a matter beyond its jurisdiction
Quo warranto A person to vacate an office wrongfully occupied Someone holds a public office without being qualified for it
Certiorari A case to be removed from a subordinate court so that the proceedings come before it A lower court’s proceedings need to be brought up and examined

Why does the Constitution place this power in Part III itself, alongside the rights? Because a right without a remedy is merely a promise. If your fundamental right is violated and no court can be moved quickly to undo the violation, the right exists on paper and nowhere else. Article 32 gives every person a direct route to the highest court in the country for that single purpose.

1.5.3 Appellate Jurisdiction

Appellate jurisdiction is the power to hear an appeal against the decision of a lower court. Ordinarily, the appellate jurisdiction of the Supreme Court is invoked by a certificate granted by the High Court — a formal statement by the High Court that the case is fit to go up.

An appeal to the Supreme Court may be made against any judgement, decree or final order of a High Court in both civil and criminal cases. Like the exercise of original jurisdiction, these cases must involve a substantial question of law as to the interpretation of the Constitution. Substantial questions of law, as noted above, connote questions of law or fact on which the existence or extent of legal rights can be adjudicated.

Appeal in Constitutional Matters: Under Article 132(1) of the Constitution of India, an appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court, whether in civil, criminal or other proceedings, if the High Court certifies under Article 134-A that the case involves a substantial question of law as to the interpretation of this Constitution.

Appeal in Civil cases: Article 133 provides that an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court only if the High Court certifies under Article 134-A:

  1. that the case involves a substantial question of law of general importance; and
  2. that in the opinion of the High Court the said question needs to be decided by the Supreme Court.

Both conditions must be satisfied. The word ‘and’ between them is doing real work — a question of general importance which the High Court considers it has settled adequately does not carry a certificate.

Appeal in Criminal Cases: Article 134 provides that an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court. This appeal can arise in two ways: without a certificate of the High Court, and with a certificate of the High Court. An appeal lies without the certificate if the High Court:

  1. has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or
  2. has withdrawn for trial before itself any case from any court subordinate to its authority and has, in such trial, convicted the accused person and sentenced him to death.

Look at what these two situations have in common: a death sentence, imposed in circumstances where the accused has effectively lost the benefit of one round of judicial opinion — either an acquittal was reversed, or the case never passed through the ordinary trial court at all. Where the stake is a human life and the ordinary layers of scrutiny have been compressed, the Constitution refuses to let access to the highest court depend on anyone’s permission.

Special Leave to Appeal: Under certain special circumstances, an appeal may lie directly to the Supreme Court from any Court in India under Article 136 of the Constitution. This is the Special Leave Petition, or Special Leave to Appeal. According to Article 136, an appeal can be made to the Supreme Court directly from any order, decision, decree or judgment given by any court or tribunal in India. This power of the Supreme Court is discretionary — the Court may or may not allow special leave to appeal to any person.

That discretion is the whole point of Article 136. It is a safety valve, not a right of appeal. It allows the Court to reach into any proceeding anywhere in the country where justice appears to have miscarried, while leaving the Court free to refuse the thousands of petitions that raise no such question.

Routes of appeal to the Supreme Court

Route Provision Nature of case Certificate of the High Court
Constitutional appeal Article 132(1) Civil, criminal or other proceedings involving a substantial question of law as to interpretation of the Constitution Required, under Article 134-A
Civil appeal Article 133 Civil proceeding involving a substantial question of law of general importance which needs to be decided by the Supreme Court Required, under Article 134-A
Criminal appeal Article 134 Criminal proceeding Not required in the two death-sentence situations listed above; otherwise required
Special Leave to Appeal Article 136 Any order, decision, decree or judgment of any court or tribunal in India Not required; leave is granted at the Court’s discretion

Q3. If a dispute begins in a small town, how does it ever reach the Supreme Court in Delhi?

A. It climbs the hierarchy. A case decided by a subordinate court can be appealed to the district court and then to the High Court. From the High Court it reaches the Supreme Court either on a certificate granted under Article 134-A in the cases covered by Articles 132, 133 and 134, or without any certificate in the two death-sentence situations under Article 134 — and, failing all of these, a party may ask the Supreme Court for special leave to appeal under Article 136, which the Court may grant at its discretion.

1.5.4 Advisory Jurisdiction

The Supreme Court’s advisory jurisdiction may be sought by the President under Article 143 of the Constitution. This procedure is termed a Presidential Reference and is recognised as the ‘advisory jurisdiction’ of the Court.

Article 143 provides that if at any time it appears to the President that:

  1. a question of law or fact has arisen, or is likely to arise; and
  2. the question is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it,

he or she may refer the question for the advisory opinion of the Court, and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.

This jurisdiction is different in kind from everything discussed so far. There are no opposing parties, nobody has been wronged, and no relief is granted. The government is asking, in advance, whether a course it is contemplating is constitutionally sound — which can prevent an unconstitutional law from ever being enacted, and save years of litigation afterwards.

In In re Kerala Education Bill (1958), the Supreme Court laid down the following principles:

  1. The Supreme Court has, under clause (1) of Article 143, a discretion in the matter, and in a proper case and for good reason it may refuse to express any opinion on the question submitted to it.
  2. It is for the President to decide what question should be referred to the Court; and if the President does not entertain any serious doubt on the other provisions, it is not for any party to say that doubts arise out of them as well.
  3. The advisory opinion of the Supreme Court is not binding on courts, because it is not a law within the meaning of Article 141.

But in In re Special Courts Bill (1979), the Supreme Court held that its advisory opinions are binding on all courts in the territory of India. It also held that the Supreme Court is under a duty under Article 143 to give its advisory opinion where the questions referred to it are not vague and not of a political nature.

If the Court has a discretion to refuse, how can it also be under a duty to answer? The two positions sit at different ends of a spectrum: the Court retains the discretion to decline a reference for good reason — for instance, where the question is vague or purely political — but where the question referred is clear and justiciable, that discretion is not a licence to stay silent on a matter of public importance.

1.5.5 The Supreme Court as an Activist

The Supreme Court of India is considered the sentinel on the qui vive — the sentry on the alert — and protects the fundamental and constitutional rights of the people. There have been several instances where the higher courts have taken cognizance of a matter of social, political or economic importance on their own behest, or on the basis of a letter or any other submission placed before the court.

Public Interest Litigation

So far we have seen the constitutional routes that permit the Supreme Court to adjudicate and advise: disputes coming up from the subordinate courts, individuals exercising writ jurisdiction, and references from the President of India. Each of these assumes something that, for a great many Indians, is simply not true — that the person whose rights have been violated is able to reach a court herself.

In recent years, the Supreme Court has relaxed its rule of locus standi and has permitted public-spirited citizens and civil society organisations to approach the Court on behalf of victims, for better administration of justice.

NoteDefinition

Locus standi is the right of a party to appear before a court and be heard. The traditional rule is that only the person whose own right has been violated may sue; relaxing it allows another person, acting in the public interest, to bring the matter to court on the victim’s behalf.

NoteDefinition

Public Interest Litigation (PIL), also called Janhit Yachika, is litigation brought before a court by a public-spirited person or organisation on behalf of persons whose rights have been violated but who are themselves unable to approach the court, or in a matter affecting the public at large.

The Court has also, on its own initiative, started cases of public importance, called suo motu actions. It has, for instance, summoned and reprimanded State authorities for their apathy and lack of diligence in running child care homes. All of this has been possible through the judicial activism of the Supreme Court, exercised through Public Interest Litigation. This extraordinary jurisdiction has been invoked either through writs or even by writing letters to judges, and its modalities are maintained under the guidelines for PIL laid down by the Court.

The first ever PIL in India is listed as Hussainara Khatoon v. State of Bihar, and dates back to 1979 — the case with which this chapter opened. Since then, PILs have encompassed a wide range of issues: socio-economic rights such as freedom from bonded labour; legal entitlements such as the right to food and the right to work; environmental issues such as clean air and water; and political reforms such as the disclosure of assets by members of the executive and the manner in which the government disburses natural resources.

Q1. How can a stranger file a case in court for someone she has never met?

A. Because the Supreme Court has relaxed the rule of locus standi. Ordinarily only the person whose own right is violated may approach a court; in Public Interest Litigation, a public-spirited citizen or a civil society organisation may petition on behalf of victims who cannot reach the court themselves, and the Court may even treat a letter addressed to a judge as a petition.

The progress of PIL has thus come to include a great variety of subjects. Yet certain common characteristics run through these litigations:

  1. PILs can be termed non-adversarial litigation, in that they do not pit the interest of one party against the other. Rather than following traditional litigation of an adversary character, PILs are recognised as tools for social change.
  2. PILs are based on the tenets of citizen standing and representative standing, which expand the right of third parties to approach the Court.
  3. PIL is, from its inception, modelled on a remedial nature, aiming at a dynamic, welfare-oriented model of judiciary. PIL thus brings the Directive Principles — whose claims cannot be brought directly before the courts — into the domain of fundamental rights under Part III of the Constitution, which can be invoked before the courts as a matter of right by citizens. In this way PILs create new rights and laws within the realm of the State, and democratise the citizen’s access to justice, thereby strengthening democracy in India.
  4. PIL further strengthens the role of the judiciary as a monitor and watch-dog agency. The fear of being dragged to court through a PIL has improved the quality of several social institutions in the country, such as jails, protective homes and mental asylums.

Note how characteristic (a) sits in tension with what you learned in Section 1.2. The Indian system is adversarial; PIL is not. That is precisely why PIL was treated as extraordinary, and why the Court had to lay down guidelines to control it.

However, with the advent and growth of PILs, they have also been misused for private gains, and have led to frivolous litigation on unnecessary issues. They have also been criticised for judicial over-reach — for the judiciary stepping into the shoes of the legislature.

Does Public Interest Litigation strengthen democracy or weaken it? Those who defend PIL argue that a right which only the wealthy and literate can enforce is not really a right at all; that PIL has released undertrial prisoners, cleaned rivers and forced negligent institutions to function; and that courts intervene only where the elected branches have failed to act. Those who criticise it argue that unelected judges are making policy choices — about fuel standards, industrial location, welfare schemes — that belong to legislatures answerable to voters; that PIL is increasingly used for publicity or private advantage; and that courts lack the expertise and the machinery to supervise the schemes they order. The law currently stands with PIL firmly established as part of Indian constitutional practice, but disciplined by the Supreme Court’s own guidelines on what may and may not be entertained as a PIL.

Public Interest Litigation — a powerful tool for judicial activism. Three well-known instances show what PILs admitted by the Supreme Court have added to the Indian judicial system. In the Ganges pollution matter, three landmark judgments and a series of orders were passed over time against more than fifty thousand polluting industries in the Ganga basin. More than 250 towns and cities were ordered to set up sewage treatment plants; six hundred tanneries operating in a congested residential area of Kolkata were shifted out of the city and relocated to a planned leather complex in West Bengal; and a large number of industries were closed and permitted to reopen only after installing effluent treatment plants. Millions of people across eight States in the Ganga basin have been spared the effects of air and water pollution as a result. In the vehicular pollution matter, the Supreme Court delivered a landmark judgment in 1992 and appointed a retired judge of the Court, along with three members, to recommend measures for the nationwide control of vehicular pollution. Orders followed for lead-free petrol and for the use of natural gas and other fuels: lead-free petrol was introduced in the four metropolitan cities from April 1995, all new cars registered from April 1995 onwards were fitted with catalytic converters, and CNG outlets were set up in Delhi and other cities, alongside Euro 2 norms. As a result, Delhi became the first city in the world to have its entire public transport running on CNG. In the Oleum gas leak matter, the principle of absolute liability was laid down. The fertiliser plant stood very close to human habitation, and the Court held that a hazardous industry could not be permitted to operate in such proximity to a population; the factory was relocated. The ‘deep pocket’ principle was also laid down in the same case. The judgment ushered in a period of rapid legislative progress: Parliament added an entirely new chapter to the Factories Act, 1948, incorporating sections almost verbatim from the judgment, the Public Liability Insurance Act was passed, and the Environment Protection Act was passed along with a policy for the abatement of pollution.

The Supreme Court’s guidelines for Public Interest Litigation. No petition involving an individual or personal matter shall be entertained as a PIL, except as indicated below. Letter-petitions falling under the following categories alone will ordinarily be entertained as Public Interest Litigation: (a) bonded labour matters; (b) neglected children; (c) non-payment of minimum wages to workers, exploitation of casual workers and complaints of violation of labour laws (except in individual cases); (d) petitions from jails complaining of harassment, seeking premature release after completing fourteen years in jail, or concerning death in jail, transfer, release on personal bond, or speedy trial as a fundamental right; (e) petitions against the police for refusing to register a case, harassment by police, and death in police custody; (f) petitions against atrocities on women, in particular harassment of a bride, bride-burning, rape, murder and kidnapping; (g) petitions complaining of harassment or torture of villagers by co-villagers or by the police, from persons belonging to Scheduled Castes and Scheduled Tribes and economically backward classes; (h) petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forests and wildlife, and other matters of public importance; (i) petitions from riot victims; (j) family pension. Cases falling under the following categories will not be entertained as Public Interest Litigation, and may be returned to the petitioners or filed in the PIL Cell, as the case may be: (i) landlord–tenant matters; (ii) service matters and those pertaining to pension and gratuity; (iii) complaints against Central or State Government departments and local bodies, except those relating to items (a) to (j) above; (iv) admission to medical and other educational institutions; (v) petitions for early hearing of cases pending in High Courts and subordinate courts. In regard to petitions concerning maintenance of wife, children and parents, the petitioners may be asked to file a petition under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 — the provision that stood as Section 125 of the Code of Criminal Procedure, 1973 when these guidelines were framed — or a suit in a court of competent jurisdiction, and for that purpose to approach the nearest Legal Aid Committee for legal aid and advice.

‘Suo motu’ action

Suo motu is a Latin term which means ‘on its own motion’.

suo motu Literal meaning: ‘on its own motion’. Legal meaning: A court takes up a matter on its own initiative, without any petition being filed before it and without any party bringing the interest to its notice. In use: In 1994, a newspaper report on pollution in the Yamuna led the Supreme Court to take up the issue suo motu.

Suo motu power allows a court to initiate legal action on its own cognizance of a matter, without any petition being filed or any interest being brought before it. Courts have initiated proceedings on the basis of media reports, telegrams and letters received from aggrieved people, taking suo motu cognizance of the issue.

One of the most prominent forms of India’s suo motu power is the power to punish for contempt of court under Article 129 of the Constitution of India and the Contempt of Courts Act, 1971.

During the Covid pandemic, a three-judge bench of the Supreme Court took suo motu cognizance of the non-availability of mid-day meals for children caused by the closure of schools, and issued notices to all State Governments and Union Territories. The Court noticed that the non-supply of nutritional food to children, as well as to lactating and nursing mothers, could lead to large-scale malnourishment, that children and mothers in rural and tribal areas were particularly prone to it, and that such malnutrition could weaken their immune systems and make them more likely to catch the infection. In order to take control of the situation, the Court issued directions to the competent authorities to do the needful.

The courts have increasingly used this power to intervene in instances of violation of fundamental rights, or to scrutinise government action and inaction.

1.5.7 Amicus Curiae

Amicus curiae, literally translated from Latin, means ‘friend of the court’.

If a petition is received from a jail, or in any other criminal matter where the accused is unrepresented, an Advocate is appointed as amicus curiae by the Court to defend and argue the case of the accused. In civil matters too, the Court may appoint an Advocate as amicus curiae if it thinks it necessary in the case of an unrepresented party. The Court can also appoint an amicus curiae in any matter of general public importance, or in which the interest of the public at large is involved.

Notice the difference from an ordinary lawyer. An amicus curiae is appointed by the Court and assists the Court; the party has not hired her and does not instruct her. The purpose is to ensure that the judge hears both sides of an argument properly presented, because in an adversarial system a case argued on one side only is a case decided on half the material.

Q2. What happens to a person who has to face a criminal trial but cannot afford a lawyer?

A. She is not left to argue for herself. If she falls within the eligible categories, she may obtain free legal aid — including an Advocate to prepare and argue her case — from the Supreme Court Legal Aid Committee; and if a petition comes from a jail or the accused in a criminal matter is unrepresented, the Court itself appoints an Advocate as amicus curiae to defend and argue the case.

1.6 Role of the High Courts and Lower Courts

The High Courts function as organs of judicial administration at the State level. Similarly, the lower courts function as centres of civil and criminal justice at the district level. The lower courts, as explained in Section 1.1, comprise the district and subordinate courts.

Courts of first instance and courts of appeal

District Courts are usually courts of first instance — the courts where litigants first come with their disputes. As you have already seen, these courts have set territorial and pecuniary limits when accepting cases of a civil nature. A similar hierarchy exists in the criminal courts at the subordinate level.

Once matters are adjudicated by these courts, they proceed to the High Courts on appeal.

This produces a division of labour that runs through the whole system and is worth fixing firmly in mind. Subordinate courts are mainly vested with the establishment of facts. The appellate courts deal with the interpretation of statutes and the correct application of law.

Why divide the work this way? Because the two tasks need different things. Deciding what actually happened requires hearing witnesses, watching them testify and examining documents first-hand — which only the trial court is placed to do. Deciding what the law means requires consistency across the whole country, which only a court sitting above the trial courts can supply. This is also why an appellate court will rarely disturb a finding of fact but will readily correct a finding of law.

Fig. 1.3 sets out what each level of the hierarchy can do.

Fig. 1.3

Fig. 1.3 – Powers at each level of the judicial hierarchy.

Writ jurisdiction of the High Courts

The High Courts have the power to issue, within their jurisdiction, directions, orders or writs — including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari — for the enforcement of Fundamental Rights and for any other purpose. This power is conferred by Article 226 of the Constitution.

This writ jurisdiction is similar to that of the Supreme Court of India, and the five writs are the same five you met in Section 1.5. But the closing words of Article 226 make the High Court’s power wider in one important respect, and that difference is a favourite of examiners.

Writ jurisdiction under Article 32 vs Article 226

Basis Article 32 (Supreme Court) Article 226 (High Court)
Purpose for which writs may issue Enforcement of Fundamental Rights only Enforcement of Fundamental Rights and for any other purpose, including enforcement of an ordinary legal right
Territorial extent The whole of India Within the territorial jurisdiction of that High Court
Nature of the remedy Article 32 is itself a Fundamental Right A constitutional remedy, but not itself a Fundamental Right
Writs available Habeas corpus, mandamus, prohibition, quo warranto, certiorari The same five writs

The role of the High Court also becomes similar to that of the Supreme Court in the exercise of public interest litigation — a High Court may likewise entertain a PIL from a public-spirited person within its jurisdiction.

Power of superintendence

Each High Court has powers of superintendence over all courts within its jurisdiction. In exercise of this power it can:

  1. call for records from such courts;
  2. make and issue general rules, and prescribe forms, to regulate their practice and proceedings; and
  3. determine the manner and form in which book entries and accounts shall be kept.

Superintendence is administrative supervision, not appeal. A litigant does not invoke it; the High Court exercises it on its own, to keep the courts below it functioning properly. It is what makes the district judiciary of a State a system rather than a collection of unconnected courtrooms.

Courts of record

The Supreme Court and the High Courts are called courts of record.

NoteDefinition

A court of record is a court whose judgments and proceedings are kept on permanent record, and which has the power to impose penalties for contempt.

The expression carries two distinct powers, and it is a common error to remember only one of them.

As a Court of Record, the Supreme Court has two powers:

  1. Its judgements, proceedings and acts are recorded for perpetual memory and testimony. These records are admitted to be of evidentiary value and cannot be questioned when produced before any court. They are recognised as legal precedents and legal references.
  2. It has the power to punish for contempt of court, either with simple imprisonment for a term up to six months, or with a fine, or with both.

As a Court of Record, the High Court has two powers:

  1. Its judgements, proceedings and acts are recorded for perpetual memory and testimony. These records are admitted to be of evidentiary value and cannot be questioned when produced before any subordinate court. They are recognised as legal precedents and legal references.
  2. It has the power to punish for contempt of court, either with simple imprisonment, or with a fine, or with both.

Why should a court need the power to punish for contempt at all — is that not a court judging a wrong done to itself? It is, and that is precisely why the power is exercised sparingly. Its justification is not the dignity of the individual judge but the working of the system: a court has no police force and no treasury of its own, so if its orders could be disobeyed or its proceedings disrupted without consequence, every other power discussed in this chapter would become unenforceable.

1.7 Appointment of Judges

Everything said in Section 1.4 about judicial independence depends on one prior question: who chooses the judges? A court cannot be independent of the executive if the executive alone decides who sits on it. This section deals with what the Constitution says about appointment, and then with what actually happens in practice — and the gap between the two is one of the most interesting features of Indian constitutional law.

1.7.1 The Constitutional Mandate

The method of appointment of judges to the Supreme Court, the High Courts and the District Courts is enshrined in the Constitution of India.

Judges of the Supreme Court

According to Article 124 of the Constitution, every judge of the Supreme Court shall be appointed by the President after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary. The Article also provides that in the case of the appointment of a judge other than the Chief Justice of India, the Chief Justice must be consulted.

The Article further provides the qualifications required to become a judge of the Supreme Court. A person must satisfy the first condition and any one of the three that follow:

  1. Citizenship of India; and
  2. has been for at least five years a Judge of a High Court, or of two or more High Courts in succession; or
  3. has been for at least ten years an advocate of a High Court, or of two or more such Courts in succession; or
  4. is, in the opinion of the President, a distinguished jurist.

Clause (d) is worth pausing on. It allows a person who has never been a judge and never practised as an advocate — a legal scholar, for instance — to be appointed directly to the highest court in the country. The framers wanted the door left open for exceptional legal minds who had spent their careers in the study rather than in the courtroom.

Judges of the High Courts

Similarly, the procedure for the appointment of judges of the High Courts is enshrined in Article 217 of the Constitution. This Article prescribes that every Judge of a High Court shall be appointed by the President after consultation with the Chief Justice of India and the Governor of the State; and, in the case of the appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court concerned.

The qualifications of a High Court judge are:

  1. Citizenship of India; and
  2. has for at least ten years held a judicial office in India; or
  3. has for at least ten years been an advocate in a High Court, or of two or more such Courts in succession.
District Judges

For the district and subordinate courts — the lower judiciary in India — the procedure for appointment is mentioned in Article 233 of the Constitution. The appointment of district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to that State.

The qualifications for appointment as District Judge are:

  1. being a member of the judicial service of the State; or
  2. being a person who has had a minimum of seven years of practice as a lawyer at the bar.

Notice that the High Court must be consulted even though the appointment is made by the Governor. That consultation is not a formality — it is the point at which the judiciary is given a say over entry into its own lower ranks, and it is a small but real instance of the separation the Constitution is trying to maintain.

Qualifications for appointment as a judge

Basis Supreme Court judge High Court judge District Judge
Provision Article 124 Article 217 Article 233
Appointed by The President The President The Governor of the State
Consultation required with Judges of the Supreme Court and High Courts as the President deems necessary; the Chief Justice of India must be consulted for appointments other than that of the CJI The Chief Justice of India, the Governor of the State, and the Chief Justice of the High Court concerned (for appointments other than that of the Chief Justice) The High Court exercising jurisdiction in relation to the State
Judicial experience route Five years as a Judge of a High Court, or of two or more High Courts in succession Ten years holding a judicial office in India Member of the judicial service of the State
Bar experience route Ten years as an advocate of a High Court, or of two or more such Courts in succession Ten years as an advocate in a High Court, or of two or more such Courts in succession Seven years of practice as a lawyer at the bar
Third route A distinguished jurist in the opinion of the President None None

1.7.2 Current Practice in the Appointment of Judges

Despite a clear constitutional mandate, the appointment of judges in practice remains a complex process. At present, appointments to the Supreme Court and the High Courts follow the collegium model — a judicial creation, developed through case law, which is not constitutionally mandated.

NoteDefinition

The collegium is a body of senior judges — headed by the Chief Justice of India for the Supreme Court, and by the Chief Justice of a High Court for that Court — whose recommendations govern the appointment and elevation of judges under present practice. It is a creation of judicial decisions, not of any provision of the Constitution.

How did a system that appears nowhere in the constitutional text come to govern appointments to the highest courts? The answer lies in a long tussle between the executive and the judiciary.

The origin of the tussle

The issue of appointment has always been linked to the independence of the judiciary. As early as 1958, the 14th Law Commission Report, under the chairmanship of M. C. Setalvad — India’s first Attorney General, whom you met in Section 1.3 — noted that the executive was appointing or rejecting judges contrary to what the judiciary had suggested, creating awkward situations. The report highlighted that several appointments were being made on political, regional, communal or other grounds, with the result that the fittest candidates were never appointed. The Commission therefore suggested strengthening the process of consultation between the executive and the judiciary.

The heart of the dispute is a single word in Article 124: consultation. Does consulting the Chief Justice mean merely asking his view before doing as one pleases, or does it mean being bound by that view? Three decisions of the Supreme Court, popularly known as the Three Judges Cases, answered that question — and answered it differently each time.

The Three Judges Cases
  1. The First Judges case (1981) gave primacy to the Executive. It held that the Chief Justice of India’s recommendation to the President could be refused for cogent reasons. This gave vast powers to the Executive in making judicial appointments for the next twelve years.
  2. The Second Judges case (1993) modified this position. The judgment held that the Chief Justice of India has primacy in the matter of appointments to the Supreme Court and the High Courts, and that an appointment ‘has to be in conformity with the final opinion of the Chief Justice of India’, while emphasising the desirability of the Chief Justice consulting other judges. The executive element in the appointment process was reduced to a minimum and political influence eliminated. This decision, rendered by a nine-judge bench, was supported by only five judges; the other four did not concur with the majority opinion. The years that followed witnessed some confusion in the process of appointment, as the Chief Justice made some unilateral appointments and the role of the President was reduced to a mere approval.
  3. The Presidential reference of 1998 — the 1998 advisory decision — emphasised the role of ‘consultation’ and held that the process of appointment of judges to the Supreme Court and the High Courts is an ‘integrated participatory consultative process’. The Chief Justice of India firms up his opinion after consultation with a plurality of judges; his opinion is formed by a body of senior judges.

Trace the movement across the three decisions and you can see the collegium being built. In 1981 the executive decided. In 1993 the Chief Justice decided. In 1998 the Court settled on something in between the two — not one judge’s opinion and not the government’s preference, but the collective view of a group of senior judges, formed through a defined consultative process. That group is the collegium.

If the collegium is nowhere in the Constitution, on what authority does it operate? On the authority of the Supreme Court’s own interpretation of the word ‘consultation’ in Articles 124 and 217. Recall from Section 1.2 that in a common law system a judicial decision on a point of law binds all courts below — so the meaning the Court has given to ‘consultation’ is, until the Court itself revisits it or the Constitution is amended, the law on the subject.

The Collegium System for Supreme Court Judges

Under the collegium model for the appointment of judges of the Supreme Court, the Chief Justice of India consults the four senior-most judges of the Supreme Court.

Appointment of a Supreme Court judge under the collegium system Governing provision: Article 124 of the Constitution of India, as interpreted in the Three Judges Cases Steps: (a) The Chief Justice of India consults the four senior-most judges of the Supreme Court. (b) The Chief Justice of India sends the recommendation to the Union Minister of Law and Justice. (c) The Union Minister of Law and Justice puts up the recommendation to the Prime Minister. (d) The Prime Minister advises the President. (e) The President makes the appointment. Outcome: A judge is appointed to the Supreme Court. The process determines who is recommended; it does not alter the constitutional qualifications under Article 124, which the candidate must independently satisfy.

The Collegium System for High Court Judges

For High Courts, the collegium comprises the Chief Justice of the High Court and the two senior-most judges of that High Court.

Appointment of a High Court judge under the collegium system Governing provision: Article 217 of the Constitution of India, as interpreted in the Three Judges Cases Steps: (a) The Chief Justice of the High Court, with the two senior-most judges of that Court, conveys the recommendation to the Chief Minister of the State and the Governor of the State. (b) The Chief Minister and the Governor send their views directly to the Union Minister of Law and Justice. (c) The complete material is forwarded to the Chief Justice of India. (d) The Chief Justice of India, in consultation with a collegium of two Judges of the Supreme Court, sends his recommendation to the Union Minister of Law and Justice. (e) The Union Minister of Law and Justice puts up the recommendation to the Prime Minister, who advises the President in the matter of appointment. Outcome: A judge is appointed to the High Court. Note that the State executive contributes its views but does not decide; the final recommendation is that of the Chief Justice of India with his collegium.

Appointment of the Chief Justice of India

The Chief Justice of India is the senior-most judge of the Supreme Court. Seniority is determined on the basis of the date of appointment to the Supreme Court. If two judges are appointed to the Court on the same day, the judge who takes the oath first is the senior judge.

The seniority principle. According to this principle, the senior-most judge of the Supreme Court is appointed as the Chief Justice of India. The principle is an unwritten convention, called the ‘seniority principle’ in legal, academic and judicial parlance. It aims to safeguard the judiciary’s independence from any sort of political interference.

The logic is simple and rather elegant. If the next Chief Justice is decided by a rule that nobody can influence — the calendar — then no judge has any reason to please the government in the hope of promotion, and the government has no lever to offer.

The Constitution of India, under Article 124(2), grants power to the President of India to appoint, in consultation with the outgoing Chief Justice, the next Chief Justice, who will serve until reaching the age of sixty-five or being removed by impeachment. As per convention, the name suggested by the incumbent Chief Justice is almost always that of the next senior-most judge in the Supreme Court. The suggestion is forwarded by the Union Law Minister to the Prime Minister, who then advises the President.

Appointment of Chief Justices of the High Courts

The Chief Justice of a High Court is appointed in accordance with the policy of having Chief Justices from outside the respective States — a practice meant to insulate the head of a State’s judiciary from local pressures and associations.

The Collegium takes the call on the elevation. High Court judges are recommended by a Collegium comprising the Chief Justice of India and the two senior-most judges. The proposal, however, is initiated by the outgoing Chief Justice of the High Court concerned, in consultation with two senior-most colleagues. The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

1.8 Retirement and Removal of Judges

A judge leaves office in one of two ways. Either she reaches the age the law fixes for retirement, or she is removed. The first is automatic and requires nobody’s decision. The second is deliberately made so difficult that it has never been carried through to completion in the history of independent India — and, as Section 1.4 explained, that difficulty is itself a guarantee of judicial independence.

1.8.1 Retirement of Judges

The retirement age for a Supreme Court judge is 65 years. Similarly, a High Court judge continues in office till the retirement age, which is 62 years. The age of retirement of District Court judges is determined by their respective State Governments under special service rules.

Two proposals to raise these ages deserve mention:

  1. The Venkatachaliah Report — the Report of the National Commission to Review the Working of the Constitution, 2002 — recommended that the retirement age of the judges of the High Courts should be increased to 65 years, and that of the judges of the Supreme Court to 68 years.
  2. The Constitution (114th Amendment) Bill was introduced in 2010 to increase the retirement age of High Court judges to 65. However, it was not taken up for consideration in Parliament and lapsed with the dissolution of the 15th Lok Sabha.

The case in Western democracies. A retirement age of around 70 for judges is commonplace in most Western liberal democracies, and some of them opt for tenure for life. In the Supreme Court of the United States, and in the constitutional courts of Austria and Greece, judges are appointed for life. In Belgium, Denmark, Ireland, the Netherlands, Norway and Australia, the retirement age for judges is 70 years.

The argument for raising the retirement age

Several reasons have been advanced for increasing the retirement age of judges in India:

  1. The judge-population ratio in India is among the lowest in the world. It is necessary to increase the number of judges in the pool to enable the judiciary to deal with the enormous pendency of cases.
  2. Legislations already provide for retired High Court and Supreme Court judges to man tribunals till the age of 70 as chairman and 65 as members. If a retired judge is considered fit to head a tribunal at 68, there is no obvious reason why the same judge should have been retired from the court at 62.
  3. One aspect that has not been factored in is that as the Indian economy grows, the ratio of litigation to population will increase exponentially. Advanced economies such as Australia, Canada, France, the United States, the United Kingdom and Japan have much higher litigation-to-population ratios.
  4. Several senior lawyers with the requisite expertise and experience decline to accept judgeship because of the lower retirement age of 62, especially in the High Courts. With an enhanced age, this problem could be rectified, as advocates would have a greater incentive to give up their individual legal practice and take up the role of a judge.
  5. The relatively early retirement age in India is often linked to the declining quality of judicial service and to the inability of a judge to properly effectuate the stipulated judicial workload.
Positive consequences

Raising the retirement age is said to bring the following benefits:

  1. Senior serving judges will bring with them years of experience.
  2. It will ensure the continued presence of a strong talent pool of experienced judges.
  3. New judges can be appointed without displacing existing judges.
  4. It will address the problem of mounting arrears.
  5. It will be a buffer against the impending litigation explosion.
  6. It will render post-retirement assignments unattractive and, as a consequence, strengthen the rule of law and the independence of the judiciary, both of which are crucial to sustaining democracy.

Point (f) repays a moment’s thought, because it connects directly to Section 1.4. A judge who retires at 62 with many working years ahead of her may reasonably hope for a post-retirement appointment — and such appointments are usually in the gift of the government. The concern is not that any particular judge is influenced, but that the arrangement creates an opening for influence at all. A longer tenure on the bench narrows that opening.

Way forward

India faces the perennial issue of a backlog of cases, and increasing the age of judges will certainly help in addressing it. The retirement age of judges of the Supreme Court and the High Courts could be increased, but with the option of quitting before reaching the age of superannuation — a practice prevailing in Zimbabwe, where a top court judge is appointed to retire at 65 but may opt to continue till 70.

Moreover, merely increasing the retirement age of judges is not a solution to the problems of the Indian judiciary. Other issues must also be addressed: the lack of transparency, particularly in the appointment of judges; the position of undertrials among the accused; and the lack of information and interaction between people and the courts.

Should the retirement age of judges in India be raised? Those in favour argue much of what is set out above — that India’s judge-population ratio is among the world’s lowest, that arrears are mounting, that experienced advocates decline judgeship because 62 is too early, that retired judges are already trusted to head tribunals till 70, and that a longer tenure makes post-retirement appointments less attractive and so strengthens independence. Those against argue that raising the age keeps senior posts occupied for longer and slows the entry of younger judges; that pendency is caused far more by vacancies, poor case management and inadequate court infrastructure than by the retirement age, so raising it treats a symptom rather than the disease; and that a fixed and relatively early retirement age ensures a regular turnover of judicial thinking. The law as it stands is unchanged: 65 years for the Supreme Court and 62 for the High Courts, with the Venkatachaliah Report’s recommendation unimplemented and the Constitution (114th Amendment) Bill lapsed.

1.8.2 Removal of Judges

Judges of the Supreme Court and the High Courts can be removed through a process called impeachment. The process for removal is the same for both the Supreme Court and the High Courts.

Article 124(4) enshrines the guidelines for the removal of a sitting Supreme Court judge. The procedure for removal of a Supreme Court judge is guided by Article 124(4) of the Constitution of India and by the Judges (Inquiry) Act, 1968. Article 218 of the Constitution of India provides for the impeachment of High Court judges.

Judges can be removed on two grounds only:

  1. incapacity; and
  2. proven misbehaviour.
NoteDefinition

A judge of the Supreme Court or a High Court may be removed only on the ground of proved misbehaviour or incapacity, only by an order of the President, and only after an address supported by the prescribed special majority has been passed by both Houses of Parliament in the same session.

Read that definition against the grounds. Political disagreement with a judgment is not a ground. An unpopular decision is not a ground. Nothing short of proved misbehaviour or incapacity will do — which is exactly what makes it safe for a judge to decide against the government of the day.

The procedure

Removal of a judge of the Supreme Court or a High Court Governing provision: Article 124(4) and Article 218 of the Constitution of India, read with the Judges (Inquiry) Act, 1968 Steps: (a) Notice of motion. Removal proceedings may be initiated in either House of Parliament. A minimum of 100 members of the Lok Sabha may give a signed notice to the Speaker, or a minimum of 50 members of the Rajya Sabha may give a signed notice to the Chairman. The Speaker or Chairman may consult individuals and examine the relevant material relating to the notice, and may then decide either to admit it or to refuse to admit it. (b) Constitution of an Inquiry Committee. After the motion is admitted, the Speaker of the Lok Sabha or the Chairman of the Rajya Sabha forms an Inquiry Committee under Section 3(2) of the Judges (Inquiry) Act, 1968 to investigate the complaint. The Committee consists of a Supreme Court judge, a High Court Chief Justice, and a distinguished jurist chosen in the opinion of the Speaker or Chairman. If such notices have been admitted in both Houses, the Inquiry Committee is formed jointly by the Speaker and the Chairman, and the notice given on the later date stands rejected; where the notices are given in both Houses on the same day, separate Committees are not constituted by the Speaker and the Chairman. (c) Submission of the inquiry report. The Committee records its findings in a formal report and submits it to the Speaker or the Chairman. If the report finds misbehaviour or incapacity making the judge guilty, the motion for removal must be put to vote in both the Lok Sabha and the Rajya Sabha. (d) Voting by the special majority. As per Article 124(4), the motion must be adopted in each House 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. If the motion is adopted by this majority in one House, it is sent to the other House. (e) Order by the President. As per Article 124(4), after the motion is adopted in both Houses by the required majority, it is placed before the President of India, who issues an order for the removal of the judge. Outcome: The judge is removed from office. The process does not convict the judge of any offence, and it does not disturb any judgment she has already delivered.

Look closely at step (d). Two majorities are required in each House, not one. A motion may command a majority of everyone present and still fail, if that number falls short of half the total membership of the House. A question that turns on this double requirement is a standard way of testing whether a student has read the provision or merely memorised the phrase ‘two-thirds majority’.

Why is a distinguished jurist included on the Inquiry Committee alongside two serving judges? Because the charge against a judge must be examined by people competent to assess judicial conduct, but an inquiry composed only of the judge’s own colleagues would invite the criticism that the judiciary is judging itself; the jurist brings independent legal standing from outside the bench.

Removal of judges at the district level

As to the removal of judges in the lower judiciary, a District Judge or an Additional District Judge can be removed from office by the State Government in consultation with the High Court.

Impeachment proceedings against judges in India. Removal proceedings have been initiated on a handful of occasions, and no judge has ever been removed through the completed process. V. Ramaswami J was the first judge against whom proceedings were initiated; in 1993 the motion was brought before the Lok Sabha but failed to secure the required two-thirds majority. Soumitra Sen J of the Calcutta High Court resigned in 2011 after the Rajya Sabha passed an impeachment motion against him, making him the first judge to have been impeached by the Upper House for misconduct. In 2015, 58 members of the Rajya Sabha moved an impeachment notice against J. B. Pardiwala J of the Gujarat High Court for his remarks on the issue of reservation. In 2017, Rajya Sabha members moved a motion to initiate impeachment proceedings against C. V. Nagarjuna Reddy J of the High Court for Andhra Pradesh and Telangana. In March 2018, opposition parties signed a draft proposal for moving an impeachment motion against Dipak Misra CJI. Amidst charges of corruption, land-grab and abuse of judicial office, P. D. Dinakaran J, Chief Justice of the Sikkim High Court, against whom the Rajya Sabha Chairman had set up a judicial panel to look into allegations of corruption, resigned in July 2011 before impeachment proceedings could be initiated against him.

That record tells you something important. In several of these instances the judge resigned before the process could run its course. The procedure has therefore functioned less as a punishment actually inflicted than as a standing pressure — which is close to what a constitutional safeguard is meant to be.

1.9 Tribunals

Section 1.1 mentioned, in passing, that specialised tribunals exist alongside the courts to decide sector-specific claims. This section takes up what they are, where they come from, and why a country that already has a complete hierarchy of courts felt the need to create them.

What are tribunals?

Tribunals are semi-judicial bodies involved in dispute resolution. They function as semi-judicial or quasi-judicial bodies because they consist of administrative officers, or of judges without a legal background, rather than exclusively of judges. Yet they function in a judicial capacity: they hear relevant legal matters and settle claims between the parties. They complement and supplement the role of courts in maintaining law and justice in society.

NoteDefinition

A tribunal is a body created by the Constitution or by a statute to adjudicate disputes in a specified field. It decides claims between parties in a judicial manner, but is not a court, and its members may be drawn from administrative as well as judicial backgrounds.

NoteDefinition

A quasi-judicial body is a body which is not a court, but which must nonetheless act judicially — hearing both sides, applying the law to the facts, and giving a reasoned decision — when deciding matters that affect the rights of persons.

Note the word supplement carefully. It is the word the Constitution’s scheme depends on. Tribunals are not a parallel judiciary and they are not a substitute for courts; they take a defined category of disputes off the courts’ hands so that both can work faster.

Constitutional basis

Tribunals were not part of the original Constitution. They were incorporated into the Indian Constitution by the 42nd Amendment Act, 1976.

  1. Article 323-A deals with Administrative Tribunals.
  2. Article 323-B deals with tribunals for other matters.

The 42nd Amendment Act thus ushered in the era of the ‘tribunalisation of the Indian judiciary’. Further, the enactment of the Administrative Tribunals Act, 1985 took the constitutional objective forward and set up the Central Administrative Tribunal (CAT) and the State Administrative Tribunals.

The CAT was set up pursuant to the Act of the legislature in 1985. These tribunals exercise jurisdiction over the service matters of the employees covered by the Act — questions of promotion, transfer, seniority, disciplinary action and similar disputes between government employees and their employer. Appeals against the orders of the administrative tribunals lie before the Division Bench of the concerned High Court.

Under Article 323-B, Parliament and the State legislatures are authorised to provide for the establishment of tribunals for the adjudication of disputes relating to the following matters:

  1. taxation;
  2. foreign exchange and export;
  3. industrial and labour disputes;
  4. land reforms laws;
  5. ceiling on urban property;
  6. election disputes of members of Parliament and State legislatures;
  7. production, procurement, supply and distribution of foodstuffs and essential goods;
  8. rent and tenancy issues.

Run your eye down that list and the common thread appears: every item is a field where disputes arise in very large numbers and turn on technical knowledge — tax computation, industrial relations, tenancy records. These are precisely the disputes that clog an ordinary court and that a specialised body can decide faster and better.

Article 323-A vs Article 323-B

Basis Article 323-A Article 323-B
Subject matter Establishment of tribunals for public service matters only Establishment of tribunals for certain other matters — taxation, foreign exchange and export, industrial and labour disputes, land reforms, ceiling on urban property, election disputes, essential goods, rent and tenancy
Who may establish them Parliament alone Both Parliament and State legislatures, with respect to matters falling within their legislative competence
Why tribunals work faster

The tribunals are procedurally flexible, and this flexibility increases their efficiency. For example, the Administrative Tribunals Act, 1985 allows aggrieved persons to appear directly before the tribunals — that is, without engaging a lawyer, which is itself a considerable saving of cost and time.

The overall objectives of the tribunals are to provide speedy and inexpensive justice to litigants. Since the government is a major litigant in the courts, and government-related litigation has added to the delay and pendency of cases, tribunals over the past two decades have significantly contributed to supplementing the role of the courts in the adjudication of service disputes.

The tribunals, however, are not meant to replace the courts.

L. Chandra Kumar v. Union of India Facts: The constitutional provisions that created tribunals had been used to exclude the High Courts from examining tribunal decisions, so that a tribunal’s order could be challenged only in the Supreme Court, if at all. Issue: Could the jurisdiction of the High Courts to review the decisions of tribunals be taken away? Held: A seven-judge bench of the Supreme Court held that tribunals would not take away the exclusive jurisdiction of the courts, and that their decisions could be scrutinised by a Division Bench of the concerned High Court. Why it matters: It fixed the constitutional place of tribunals. They may decide disputes at first instance and relieve the courts of routine volume, but they sit within the judicial system described in this chapter, not outside it — the High Court’s supervisory eye, which you met in Section 1.6, still reaches them.

If a tribunal decides service disputes just as a court would, why does it matter that its decisions remain open to scrutiny by a High Court? Because tribunal members are drawn partly from the administrative stream and are not protected by the tenure and salary guarantees that Section 1.4 described. Keeping the High Court’s jurisdiction intact preserves a layer of fully independent judicial review over bodies that do not themselves carry those guarantees.

Tribunals in operation

Tribunals have been constituted either under a specific constitutional mandate enshrined in the Constitution of India, or through legal enactments — that is, a law passed by the legislature. Their creation aims at increasing efficiency in resolving disputes and reducing the burden on the courts. Examples include:

  1. the Central Administrative Tribunal (CAT), for resolving the grievances and disputes of central government employees;
  2. the State Administrative Tribunals (SAT), for State government employees;
  3. the Telecom Dispute Settlement Appellate Tribunal (TDSAT), for resolving disputes in the telecom sector in India; and
  4. the National Green Tribunal (NGT), for disputes involving environmental issues.

Some of these tribunals function alongside regulators. Regulators are specialised government agencies that oversee compliance with the law in the relevant government sectors. For example, TDSAT functions alongside the regulator TRAI — the Telecom Regulatory Authority of India — in formulating rules and policy for resolving telecom disputes in India.

The distinction is worth keeping straight: a regulator frames and enforces the rules for a sector, while a tribunal decides disputes that arise under them.

Courts vs Tribunals

Basis Courts Tribunals
Source Established under the Constitution and ordinary law as part of the regular judicial hierarchy Established under Articles 323-A and 323-B or under a specific statute
Composition Judges appointed under Articles 124, 217 and 233 Chairman, Vice Chairman and Members, drawn from both judicial and administrative streams
Jurisdiction General — civil and criminal matters of every kind Confined to the specific sector the tribunal is created for
Procedure Bound by the detailed procedure of the regular courts Procedurally flexible; a party may often appear directly, without a lawyer
Appeal or review Appeal lies to the higher court in the hierarchy Decisions may be scrutinised by a Division Bench of the concerned High Court

Did you know? There are 19 Benches and 19 Circuit Benches of the Central Administrative Tribunal across India. The Government of India has notified 215 organisations, including Ministries and Departments of the Central Government, under Section 14(2) of the Administrative Tribunals Act, 1985, to bring them within the jurisdiction of the Central Administrative Tribunal from time to time. In addition, the Principal Bench of the Central Administrative Tribunal deals with the matters of the Government of the National Capital Territory of Delhi. The tribunal consists of a Chairman, a Vice Chairman and Members. The members are drawn from both the judicial and the administrative streams, so that the tribunal has the benefit of expertise in the legal as well as the administrative spheres.

1.10 Courts and Judicial Review

The powers of judicial review allow the judiciary to safeguard the checks and balances between the organs of government, and to ensure the separation of powers of the other two branches. Courts have the power of judicial review to declare a law unconstitutional if it has been enacted in breach of that demarcation.

Put plainly: a legislature may pass a law, and a court may then hold that the law is void because the Constitution did not permit it to be passed. That is an extraordinary power for an unelected body to hold over an elected one, and its origin is worth knowing.

Where the idea came from

The concept dates back to a landmark decision of the Supreme Court of the United States, delivered in 1803, in which Chief Justice John Marshall applied the principle for the first time. It later became one of the most important judicial principles in the world.

Marbury v. Madison, 1803 Facts: Thomas Jefferson defeated John Adams in the 1800 presidential election. Before Jefferson took office on 4 March 1801, Adams and Congress passed the Judiciary Act of 1801, which created new courts, added judges, and gave the President more control over the appointment of judges. Adams used the Act to appoint 16 new circuit judges and 42 new justices of the peace. The appointees were approved by the Senate, but their appointments would not be valid until their commissions were delivered by the Secretary of State. William Marbury had been appointed Justice of the Peace in the District of Columbia, but his commission was never delivered. Marbury, joined by three other similarly placed appointees, petitioned the Supreme Court for a writ of mandamus compelling the new Secretary of State, James Madison, to deliver the commissions. Issue: Did the plaintiffs have a right to receive their commissions? Could they sue for them in court? And did the Supreme Court have the authority to order their delivery? Held: The Court found that Madison’s refusal to deliver the commission was illegal, and that a writ of mandamus was the proper way to seek a remedy — but concluded that this Court could not issue it. The provision of the Judiciary Act of 1789 that enabled Marbury to bring his claim directly to the Supreme Court was itself unconstitutional, since it purported to extend the Court’s original jurisdiction beyond what Article III, Section 2 of the United States Constitution had established. Congress had no power to modify the Constitution through ordinary legislation, because the Supremacy Clause places the Constitution above the laws. Why it matters: In so holding, Marshall established the principle of judicial review — the power of a court to declare a law unconstitutional. Notice how he did it: by refusing himself a power that a statute had given him, on the ground that the statute conflicted with the Constitution. The Court gave up a small jurisdiction and gained the largest one of all.

The reasoning behind judicial review is easier to grasp once you see the alternative. If a Constitution says that Parliament may not pass a certain kind of law, and Parliament passes it anyway, someone has to decide whether the Constitution or the statute prevails. If nobody can decide, then the limits written into the Constitution are advice rather than law. Judicial review makes them law.

The meaning of judicial review
NoteDefinition

Judicial review is the power of a court to examine an executive or legislative act — a law, or some other governmental or administrative decision — and to determine whether that act is incompatible with the Constitution.

The extent of the power varies between countries.

  1. In some countries, such as the United States, France and Canada, judicial review allows the court to invalidate or nullify a law, or an act of the legislature or the executive, if it is found to be contrary to the constitution.
  2. In the United Kingdom, judicial review powers are restricted; the courts do not have the authority to nullify or invalidate legislation passed by Parliament.
  3. Other countries may place different kinds of restrictions on their courts, and may allow review of only one branch of government.

Why can British courts not strike down an Act of Parliament, when Indian courts can? Because the United Kingdom has no single written constitution standing above ordinary legislation, and its system rests on the supremacy of Parliament. India’s position is the opposite: the Constitution is supreme, Parliament derives its own power from that document, and a law that exceeds what the document permits is therefore void.

Judicial review in the Indian scheme

India, which is based on the parliamentary form of government, follows a system of separation of powers among the three branches of government as prescribed in the Indian Constitution:

  1. The executive branch consists of the President, the Prime Minister and the bureaucracy.
  2. The legislative branch includes both Houses of Parliament — the Lok Sabha and the Rajya Sabha.
  3. In the judiciary, the Supreme Court is the final authority for interpreting the Constitution, and the judiciary is independent of the other two branches.

The Constitution provides checks and balances so that no one branch exercises supremacy over the others, or misuses the powers given to it. In this way each branch places a check on the others whenever there is an encroachment or a conflict of powers, and the concentration of power in any single branch is prevented. Fig. 1.4 shows how these checks run between the three organs.

Fig. 1.4

Fig. 1.4 – Separation of powers and checks and balances in India.

Judicial review in different constitutional systems

Basis United States United Kingdom India
Written constitution above ordinary law Yes No single written constitution Yes
Court may nullify legislation Yes No — Parliament’s legislation cannot be invalidated Yes
Court may review executive action Yes Yes Yes
Origin of the power Established judicially in Marbury v. Madison, 1803 Confined by parliamentary supremacy Provided for in the Constitution and developed by the courts

Two features of the Indian position should be fixed now, because the next two sections build on them. First, judicial review here is not merely a judicial invention as it was in the United States — it rests on express provisions of the Constitution, which you will meet in Section 1.12. Second, the power belongs to the High Courts as well as to the Supreme Court, so it is exercised in every State and not only in Delhi.

The obvious objection to judicial review is that it lets unelected judges overrule elected representatives. The Indian answer is that judges are not overruling the representatives; they are enforcing a document the representatives themselves are bound by. But that answer only pushes the question one step further back — what if Parliament amends the Constitution itself? That is precisely the problem the next section takes up.

1.11 Doctrine of Basic Structure

The doctrine of Basic Structure is an evolution of the judiciary, and has been regarded as an important element of judicial review.

The doctrine invalidates any constitutional amendment that destroys or harms a basic or essential feature of the Constitution — features such as secularism, democracy and federalism. The Supreme Court has also held judicial review itself to be a basic structure or feature of the Constitution; as a result, it can nullify any constitutional amendment that abolishes or disregards judicial review in matters concerning the fundamental rights of citizens.

The concept was introduced by the judiciary in order to tide over a spate of amendments which were eroding the basic elements of the Indian Constitution. The doctrine comes into play when it is felt that the executive and the legislature have transgressed the boundary defined by the Constitution, which underlies the spirit of separation of powers.

NoteDefinition

The Doctrine of Basic Structure holds that Parliament may amend any part of the Constitution, but cannot alter or destroy its basic structure. It is triggered when a constitutional amendment damages an essential feature — such as secularism, democracy, federalism, the rule of law, judicial review, or the balance between Fundamental Rights and the Directive Principles. Its limit is equally important: the doctrine does not freeze the Constitution, and an amendment that leaves the essential features intact is perfectly valid.

Notice the problem the doctrine was invented to solve. Section 1.10 ended with a question: judicial review lets a court strike down a law that violates the Constitution, but what happens if Parliament amends the Constitution itself? If the amending power were unlimited, any limit on Parliament could be removed simply by amending away the limit — and the Constitution would offer no protection that a temporary majority could not withdraw. The basic structure doctrine is the Supreme Court’s answer to that possibility.

Evolution of the basic structure concept

The concept did not arrive fully formed. It evolved over more than two decades, through a series of landmark judgments in which the Court changed its position more than once. Fig. 1.5 traces that development.

Fig. 1.5

Fig. 1.5 – Timeline of the basic structure doctrine’s evolution.

Shankari Prasad case (1951)

In this case, the Supreme Court held that Parliament’s power of amending the Constitution under Article 368 included the power to amend the Fundamental Rights guaranteed in Part III as well.

Golaknath case (1967)

In this case, the Court reversed its earlier stance that the Fundamental Rights can be amended. Its reasoning ran as follows:

  1. Fundamental Rights are not amenable to Parliamentary restriction, as stated in Article 13, and to amend the Fundamental Rights a new Constituent Assembly would be required.
  2. Article 368 gives the procedure to amend the Constitution, but does not confer on Parliament the power to amend it. This case conferred upon the Fundamental Rights a ‘transcendental position’.
  3. The majority judgement called upon the concept of implied limitations on the power of Parliament to amend the Constitution. On this view, the Constitution gives a place of permanence to the fundamental freedoms of citizens.
  4. In giving themselves the Constitution, the people had reserved these rights for themselves.

The distinction in point (b) is a fine one and worth slowing down over. A provision that tells you how to do something is not the same as a provision that tells you that you may do it. Article 368 lays down majorities and procedures; the Court in Golaknath held that it does not, by itself, grant the power the procedure is meant to exercise.

Kesavananda Bharati case (1973)

Kesavananda Bharati v. State of Kerala Facts: The head of a religious mutt in Kerala challenged State land reform legislation affecting the property of the mutt. The case grew far beyond that dispute and became the occasion for the Supreme Court to decide, once and for all, how far Parliament’s power to amend the Constitution extends. Issue: Is there any limit on Parliament’s power under Article 368 to amend the Constitution, including the Fundamental Rights? Held: The Supreme Court held that although no part of the Constitution, including the Fundamental Rights, was beyond Parliament’s amending power, the basic structure of the Constitution could not be abrogated even by a constitutional amendment. Why it matters: This was the landmark case in defining the basic structure doctrine. The judgement implied that Parliament can only amend the Constitution and not rewrite it — the power to amend is not a power to destroy. It is the basis in Indian law on which the judiciary can strike down any amendment passed by Parliament that conflicts with the basic structure of the Constitution.

Three positions on amending the Fundamental Rights

Case Can Parliament amend the Fundamental Rights? Limit on the amending power
Shankari Prasad (1951) Yes — Article 368 includes the power to amend Part III None identified
Golaknath (1967) No — a new Constituent Assembly would be required Fundamental Rights placed beyond the reach of amendment altogether
Kesavananda Bharati (1973) Yes — no part of the Constitution is beyond the amending power But the basic structure of the Constitution cannot be abrogated even by an amendment

Read across that table and you can see the Court settling on a middle position. Golaknath protected the Fundamental Rights completely, but at the cost of making the Constitution rigid. Kesavananda Bharati returned the amending power to Parliament in full, while placing beyond its reach not a list of Articles but the essential character of the document.

Indira Nehru Gandhi v. Raj Narain case (1975)

Here, the Supreme Court applied the theory of basic structure and struck down Clause (4) of Article 329-A, which had been inserted by the 39th Amendment in 1975, on the ground that it was beyond Parliament’s amending power as it destroyed the Constitution’s basic features.

The 39th Amendment Act was passed by Parliament during the Emergency period. This Act placed the election of the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha beyond the scrutiny of the judiciary. The 39th Amendment was upheld by four of the five judges on the bench, but only after they overturned the portion of the amendment that aimed to limit the judiciary’s ability to rule in the election dispute then before it.

Minerva Mills case (1980)
  1. This case again strengthened the Basic Structure doctrine. The judgement struck down two changes made to the Constitution by the 42nd Amendment Act, 1976, declaring them violative of the basic structure.
  2. The judgement makes it clear that the Constitution, and not Parliament, is supreme.
  3. The Court added two features to the list of basic structure features: judicial review, and the balance between Fundamental Rights and the Directive Principles of State Policy.
  4. The judges ruled that a limited amending power is itself a basic feature of the Constitution.

Q5. Can Parliament pass a law that takes away the Court’s power to protect our fundamental rights?

A. No. Judicial review has been held to be part of the basic structure of the Constitution, and under the doctrine laid down in Kesavananda Bharati and applied in Minerva Mills, even a constitutional amendment framed by Parliament cannot abrogate a basic feature. Parliament may amend the Constitution, but it cannot use that power to abolish the very mechanism by which fundamental rights are enforced.

Indra Sawhney v. Union of India (1992)
  1. The Supreme Court examined the scope and extent of Article 16(4), which provides for the reservation of jobs in favour of backward classes. It upheld the constitutional validity of 27% reservation for Other Backward Classes, subject to certain conditions — exclusion of the creamy layer, no reservation in promotion, and a total reserved quota not exceeding 50%.
  2. Here, the rule of law was added to the list of basic features of the Constitution.
S. R. Bommai case (1994)
  1. In this judgement, the Supreme Court sought to curb the blatant misuse of Article 356, which concerns the imposition of President’s Rule on States.
  2. In this case there was no question of a constitutional amendment at all, and yet the concept of the basic structure doctrine was applied.
  3. The Supreme Court held that the policies of a State government directed against an element of the basic structure of the Constitution would be a valid ground for the exercise of the central power under Article 356.

If the basic structure doctrine limits the power to amend the Constitution, how could it apply in S. R. Bommai, where no amendment was in question? Because the doctrine identifies what is essential to the Constitution, and once a feature is recognised as essential it becomes a standard against which other actions can be measured — here, the conduct of a State government. The doctrine began as a limit on the amending power, but its list of essential features has proved useful well beyond that original setting.

The settled position

The Supreme Court’s judgments frequently mention the sovereign, democratic and secular nature of the polity, the rule of law, the independence of the judiciary and the fundamental rights of citizens as crucial components of the Constitution.

One certainty has emerged from this long tussle between Parliament and the judiciary: all legislation and all constitutional amendments are now subject to judicial review, and laws that violate the fundamental framework are likely to be overturned by the Supreme Court. In essence, Parliament’s ability to alter the Constitution is limited, and all constitutional amendments are ultimately decided upon, scrutinised and interpreted by the Supreme Court.

Thus, after the decisions of the Supreme Court in the Kesavananda Bharati case, the Indira Gandhi election case and the Minerva Mills case, it can be concluded that Parliament’s power to amend the Constitution is limited, and that in the exercise of its constituent power Parliament cannot violate the Basic Structure of the Constitution.

1.12 Scope of Judicial Review in India

Judicial review is one of the essential features of the Indian Constitution. It has helped preserve the constitutional principles and values, and constitutional supremacy itself.

The power of judicial review is available to the Supreme Court and to the High Courts of the different States, in matters of both legislative and administrative actions. Note both halves of that sentence. The power is not confined to Delhi — a High Court exercises it too. And it is not confined to laws — the decisions of officials are equally open to review.

With respect to judicial review of executive or administrative actions, courts have employed doctrines such as proportionality, legitimate expectation, reasonableness, and the principles of natural justice.

Essentially, the scope of judicial review in the courts in India has developed with respect to three issues, shown in Fig. 1.6:

  1. protection of fundamental rights as guaranteed in the Constitution;
  2. matters concerning the legislative competence between the Centre and the States; and
  3. fairness in executive acts.

Fig. 1.6

Fig. 1.6 – The three heads of judicial review in India.

1.12.1 Individual and Group Rights

Article 13(2) of the Constitution of India provides the foundation for this first head.

the Constitution of India, Article 13(2) The State shall not make any law which takes away or abridges the rights conferred by this Part, and any law made in contravention of this clause shall, to the extent of the contravention, be void.

Two features of this provision deserve attention. First, it is a prohibition addressed to the State itself — a law of this kind is void from the moment it is made, not merely unwise. Second, the words to the extent of the contravention mean that the whole statute need not fall; only the offending portion does, where the rest can stand independently.

This Article explicitly confers the power of judicial review on the courts in matters of fundamental rights. Without it, a court asked to set aside a law violating Part III would have to argue its way to that power, as Chief Justice Marshall had to in Marbury v. Madison. In India it is written into the text.

Furthermore, Article 32 offers the Supreme Court the power to enforce fundamental rights, and gives every person the right to move the Supreme Court for the enforcement of those rights. It was of Article 32 that Dr B. R. Ambedkar, the chairman of the drafting committee of the Constituent Assembly, famously said that it is the heart and soul of the Constitution — the one Article without which the rest of Part III would be a list of good intentions.

From this Article the Supreme Court derives its authority to issue directions, orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, each of which was explained in Section 1.5. Like Article 32, Article 226 is a parallel provision for the High Courts in the States, allowing similar writs to be instituted there for the enforcement of fundamental rights, as you saw in Section 1.6.

The courts, through their judicial review practice, have also liberalised the doctrine of locus standi — the right to appear before, or petition, a court — for the enforcement of the fundamental rights of those who lack access to courts by reason of poverty or of social and economic disabilities. This method led to the development of Public Interest Litigation or Social Action Litigation (PIL or SAL), whereby any public-spirited person can petition, or write letters to, the courts on behalf of victims of human rights violations or other aggrieved parties.

1.12.2 Centre–State Relations

Judicial review has also been used in matters concerning legislative competence with regard to Centre–State relations.

Article 246 of the Constitution divides law-making power between Parliament and the State legislatures by reference to three lists in the Seventh Schedule:

  1. Parliament has exclusive power to make laws with respect to the matters itemised in the Union List (List I of the Seventh Schedule);
  2. both Parliament and the legislature of any State have power to make laws with respect to matters enumerated in the Concurrent List (List III); and
  3. the legislature of any State has exclusive power to make laws with respect to matters listed in the State List (List II).

This Article delivers a clear division of law-making powers, as well as room for intersection between the Centre and the States.

But a written division does not enforce itself. A State legislature may pass a law that in substance deals with a Union subject; Parliament may legislate on something that belongs to the States. Somebody must decide, when the question is raised, which list a particular law really falls under. Judicial review helps demarcate the legislative competencies, and ensures that the Centre does not exert its supremacy over State matters, and likewise that the States do not encroach upon matters within the ambit of the Centre.

This is the head of judicial review that keeps Indian federalism working. Recall from Section 1.1 that although law-making power is divided, the judiciary is a single integrated system — and it is precisely because the same hierarchy of courts serves both Centre and States that it can hold the boundary between them impartially.

1.12.3 Fairness in Executive Actions

In matters of executive or administrative action, the judicial review practice of the courts has often employed doctrines such as the principles of natural justice, reasonableness, proportionality and legitimate expectation.

The most frequently applied of these is a rule of natural justice expressed in a Latin phrase.

audi alteram partem Literal meaning: ‘Listen to the other side’. Legal meaning: No person shall be condemned, or have a decision made against her interests, without first being given a fair opportunity to be heard. In use: It was applied by the Supreme Court in Maneka Gandhi v. Union of India, where a passport was impounded without the holder being given any chance of a prior hearing.

This phrase is an established principle in Indian legal practice, and it was applied by the Supreme Court in several cases, including the landmark decision in Maneka Gandhi v. Union of India.

Maneka Gandhi v. Union of India, 1978 Facts: The petitioner’s passport was issued on 1 June 1976 under the Passport Act, 1967. On 2 July 1977 the Regional Passport Office, New Delhi, ordered her to surrender it. No reason was given for this unilateral decision of the External Affairs Ministry beyond a reference to public interest. She approached the Supreme Court by invoking its writ jurisdiction, contending that impounding her passport was a direct assault on her right to personal liberty under Article 21. The Court had earlier held, in Satwant Singh Sawhney v. Ramarathnam, that the right to travel abroad falls within Article 21, though the extent to which the Passport Act diluted that right was unclear. Issue: Are Articles 14, 19 and 21 connected with one another or mutually exclusive; must the procedure established by law be tested for reasonableness; and could a passport be impounded without giving the holder a hearing? Held: A unanimous seven-judge bench delivered the judgment on 25 January 1978. The Court held that the scope of personal liberty under Article 21 is very wide and includes the right to travel abroad. It accepted that impounding a passport under Section 10(3) of the Passport Act is not by itself unconstitutional, since the authority may need to suspend or cancel a passport in the interest of national security. But in this case the petitioner had been given no opportunity of being heard and no valid reasons — the maxim audi alteram partem had not been followed. She was allowed a post-decisional hearing; the hearing was given and the passport returned to her. Why it matters: The Court held that Article 14 (right to equality), Article 19 (right to freedom) and Article 21 (right to life and personal liberty) form the Golden Triangle of the Constitution: a law that deprives a person of personal liberty must also meet the criteria of Articles 14 and 19. The mere existence of a law is not enough — it must be just, fair and reasonable. This liberal interpretation of Article 21 brought the substance of ‘due process of law’ into the Indian phrase ‘procedure established by law’. It also evolved the doctrine of post-decisional hearing, recognising that in situations of urgency, where a prior hearing is not feasible, the chance of a hearing cannot be debarred completely.

‘Procedure established by law’ vs ‘Due process of law’

Basis Procedure established by law Due process of law
Meaning A law made by the legislature or a competent body is valid if the correct procedure was followed in making it The government must protect and respect the legal rights owed to an individual, and the law itself must be fair
Focus of the enquiry Was the prescribed procedure followed? Is the law, and the procedure it lays down, just, fair and reasonable?
Origin The British position, adopted in the text of Article 21 The American position, which the framers deliberately did not write into Article 21
Position in India after Maneka Gandhi Retained in the text of Article 21 Read into Article 21 through the requirement that the procedure be just, fair and reasonable

That last row is the point students most often miss. The words of Article 21 were never changed. What changed was the meaning the Court gave them — a demonstration, once again, of the common law method described in Section 1.2.

The place of the judiciary in India

The judiciary in India enjoys a very significant position, since it has been made the guardian and custodian of the Constitution.

It is not only a watchdog against the violation of fundamental rights guaranteed under the Constitution; it also insulates all persons — Indians and foreigners alike — against discrimination, abuse of State power and arbitrariness.

The judiciary has often been described as the defensive armour of a country, its Constitution and its laws. If that armour were stripped of its onerous functions, the door would stand wide open to nullification, anarchy and convulsion. Every protection studied in this chapter — the hierarchy of courts, the independence of judges, the writs, the tribunals subject to High Court scrutiny, judicial review, the basic structure — exists to keep that armour in place.

1.13 Summary

  1. India has a federal system of government, but a single integrated judiciary that administers both Central and State laws.
  2. The hierarchy runs from the Supreme Court, to the High Courts, to the district and subordinate courts, with specialised tribunals supplementing the courts.
  3. The Supreme Court of India came into being on 28 January 1950, replacing the Federal Court of India and the Judicial Committee of the Privy Council.
  4. The Constitution in 1950 provided for a Chief Justice and seven judges, and empowered Parliament to increase that number; the sanctioned strength today is 34 judges including the Chief Justice of India.
  5. India has 25 High Courts, each having jurisdiction over a State, a Union Territory, or a group of States and Union Territories.
  6. The Madras, Bombay, Calcutta and Allahabad High Courts are the first four High Courts in India; the Andhra and Telangana High Courts, established on 1 January 2019 under the Andhra Pradesh Reorganisation Act, 2014, are the newest.
  7. Each State is divided into judicial districts presided over by a District and Sessions Judge — called a District Judge in a civil case and a Sessions Judge in a criminal case.
  8. Below the district court, the civil side runs from the Junior Civil Judge Court up to the Senior Civil Judge Court, and the criminal side from the Second Class Judicial Magistrates Court up to the Chief Judicial Magistrate Court.
  9. District Munsiff Courts are the lowest courts handling civil matters, and the pecuniary limits of civil courts are notified by the respective State Governments.
  10. India is a common law jurisdiction, which means that judicial decisions themselves make law and become binding precedents for subordinate courts; under a civil law system, only the legislature or executive can create law.
  11. Indian courts follow the adversarial model, in which the lawyers present the case and the judge decides as a neutral umpire, unlike the inquisitorial model in which the judge actively investigates.
  12. The Attorney General of India, appointed by the President under Article 76, is the first legal officer of the country and is assisted by a Solicitor General and four Additional Solicitors General.
  13. The Advocate General of a State is appointed by the Governor under Article 165 and is the chief legal advisor of the State.
  14. Article 50 lays down the independence of the judiciary, which is protected through five safeguards:
    1. security of tenure until retirement, with a bar on practising in the same or equivalent courts afterwards;
    2. removal only for proven misbehaviour or incapacity, through a stringent process;
    3. salaries charged on the Consolidated Fund and not alterable to a judge’s disadvantage except in a financial emergency;
    4. immunity of judicial conduct from discussion in Parliament or a State legislature, except during removal proceedings;
    5. the Supreme Court’s control over its own establishment and staff.
  15. Under Article 131, the Supreme Court has exclusive original jurisdiction in disputes between the Government of India and the States, or between States, where a legal right is in question.
  16. Article 32 gives the Supreme Court an extensive original jurisdiction to enforce fundamental rights through the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari.
  17. Appeals reach the Supreme Court under Article 132 in constitutional matters, Article 133 in civil matters and Article 134 in criminal matters, ordinarily on a certificate of the High Court granted under Article 134-A.
  18. Under Article 136, the Supreme Court may grant special leave to appeal from any order of any court or tribunal in India, and this power is discretionary.
  19. Under Article 143 the President may seek the Supreme Court’s advisory opinion by a Presidential Reference.
  20. Public Interest Litigation became possible when the Court relaxed the rule of locus standi, allowing public-spirited persons to approach it on behalf of victims; the first PIL was Hussainara Khatoon v. State of Bihar in 1979.
  21. Suo motu means ‘on its own motion’, and allows a court to initiate proceedings without any petition being filed.
  22. Free legal aid is available from the Supreme Court Legal Aid Committee to the categories of persons the scheme specifies, and an unrepresented accused may be given an Advocate appointed by the Court as amicus curiae.
  23. High Courts issue writs under Article 226 for the enforcement of fundamental rights and for any other purpose, which makes their writ jurisdiction wider in scope than that under Article 32.
  24. Each High Court exercises powers of superintendence over all courts within its jurisdiction.
  25. The Supreme Court and the High Courts are courts of record, whose proceedings are preserved as permanent record of evidentiary value and which can punish for contempt of court.
  26. Judges are appointed under Article 124 (Supreme Court), Article 217 (High Courts) and Article 233 (district judges), each Article prescribing its own qualifications and consulting authorities.
  27. In present practice, appointments to the Supreme Court and the High Courts follow the collegium system, developed through the Three Judges Cases and not mentioned in the Constitution.
  28. The seniority principle, by which the senior-most judge of the Supreme Court becomes the Chief Justice of India, is an unwritten convention that protects the judiciary from political interference.
  29. The retirement age is 65 years for a Supreme Court judge and 62 years for a High Court judge; the Venkatachaliah Report, 2002 recommended raising these to 68 and 65, and the Constitution (114th Amendment) Bill of 2010 lapsed.
  30. A judge of the Supreme Court or a High Court may be removed only for incapacity or proven misbehaviour, under Article 124(4) read with the Judges (Inquiry) Act, 1968, and Article 218 for High Court judges.
  31. Removal requires a notice signed by 100 members of the Lok Sabha or 50 members of the Rajya Sabha, an inquiry by a Committee constituted under Section 3(2) of the Judges (Inquiry) Act, 1968, adoption of the motion in each House by a majority of its total membership and by two-thirds of members present and voting, and finally an order of the President.
  32. Tribunals are quasi-judicial bodies introduced by the 42nd Amendment Act, 1976 through Article 323-A for administrative matters and Article 323-B for certain other matters.
  33. The Administrative Tribunals Act, 1985 set up the Central Administrative Tribunal and the State Administrative Tribunals; appeals from them lie to a Division Bench of the concerned High Court.
  34. In L. Chandra Kumar v. Union of India, a seven-judge bench held that tribunals do not take away the exclusive jurisdiction of the courts and that their decisions remain open to scrutiny by the High Courts.
  35. Judicial review is the power of a court to examine a legislative or executive act and determine whether it is incompatible with the Constitution; the principle was first applied in Marbury v. Madison, 1803.
  36. The Doctrine of Basic Structure holds that Parliament may amend any part of the Constitution but cannot destroy its basic features, and was settled in Kesavananda Bharati v. State of Kerala, 1973.
  37. The doctrine evolved through Shankari Prasad (1951), Golaknath (1967), Kesavananda Bharati (1973), Indira Nehru Gandhi v. Raj Narain (1975), Minerva Mills (1980), Indra Sawhney (1992) and S. R. Bommai (1994).
  38. Minerva Mills added judicial review and the balance between Fundamental Rights and the Directive Principles to the list of basic features, and held that a limited amending power is itself a basic feature.
  39. The scope of judicial review in India has developed around three issues:
    1. protection of fundamental rights, under Article 13(2), Article 32 and Article 226;
    2. legislative competence between the Centre and the States, under Article 246 and the Seventh Schedule;
    3. fairness in executive action, through doctrines such as natural justice, reasonableness, proportionality and legitimate expectation.
  40. In Maneka Gandhi v. Union of India, 1978, the Supreme Court held that Articles 14, 19 and 21 form the Golden Triangle, that a procedure established by law must be just, fair and reasonable, and that the maxim audi alteram partem had been violated when a passport was impounded without a hearing.

1.14 Key Terms

  1. Integrated judiciary — a single connected hierarchy of courts that administers both Central and State laws.

  2. Jurisdiction — the authority given by law to a court to hear and decide a case, which may be limited by subject matter, territory or the amount claimed.

  3. Subordinate judiciary — the district and subordinate courts functioning below the High Courts.

  4. Pecuniary limit — the maximum value of a money claim that a particular civil court is competent to hear, notified by the State Government.

  5. Common law — a legal system in which judicial decisions themselves develop the law and bind lower courts, as distinct from a system where only the legislature can create law.

  6. Precedent — a decision of a higher court on a point of law which lower courts in the same hierarchy are bound to follow.

  7. Civil law system — a system in which only the legislature or the executive can create law, and the judge applies the written code to the facts.

  8. Adversarial system — a system of adjudication in which the opposing lawyers present the case and a neutral judge decides on the material placed before her.

  9. Inquisitorial system — a system in which the judge is pro-active and may herself inquire and probe into the matter.

  10. Attorney General of India — the first legal officer of the country, appointed by the President under Article 76 to advise and represent the Government of India.

  11. Advocate General — the chief legal advisor of a State, appointed by the Governor under Article 165.

  12. Independence of the judiciary — the constitutional position by which courts decide cases free from control or pressure by the executive and the legislature, secured through protections of tenure, salary and conduct.

  13. Due process of law — the requirement that the State respect all legal rights owed to a person and conform to norms of fairness before depriving her of life, liberty or property.

  14. Original jurisdiction — the power of a court to hear a dispute at the first instance rather than on appeal.

  15. Writ jurisdiction — the power of the Supreme Court under Article 32, and of the High Courts under Article 226, to issue writs for the enforcement of rights.

  16. Habeas corpus — a writ ordering the release of a person who is unlawfully detained.

  17. Mandamus — a writ ordering a public authority to perform its legal duty.

  18. Prohibition — a writ preventing a subordinate court from continuing with a case beyond its jurisdiction.

  19. Quo warranto — a writ directing a person to vacate an office wrongfully occupied.

  20. Certiorari — a writ removing a case from a subordinate court so that its proceedings come before the higher court.

  21. Appellate jurisdiction — the power of a court to hear an appeal against the decision of a lower court.

  22. Certificate of the High Court — the certification granted under Article 134-A that a case is fit to be taken to the Supreme Court under Article 132, 133 or 134.

  23. Special Leave Petition — a petition under Article 136 asking the Supreme Court to grant leave to appeal from any order of any court or tribunal in India, which the Court may allow at its discretion.

  24. Presidential Reference — a question of law or fact of public importance referred by the President to the Supreme Court under Article 143 for its advisory opinion.

  25. Locus standi — the right of a party to appear before a court and be heard.

  26. Public Interest Litigation (PIL) — litigation brought by a public-spirited person or organisation on behalf of persons unable to approach the court themselves, or in a matter affecting the public at large.

  27. Suo motu — ‘on its own motion’; a court taking up a matter on its own initiative without any petition being filed.

  28. Legal aid — free or subsidised legal assistance provided to eligible persons, including the cost of preparing the case and the services of an Advocate.

  29. Amicus curiae — ‘friend of the court’; an Advocate appointed by the court to assist it, often to argue the case of an unrepresented party.

  30. Superintendence — the administrative supervision each High Court exercises over all courts within its jurisdiction.

  31. Court of record — a court whose judgments and proceedings are preserved as permanent record of evidentiary value and which has the power to punish for contempt.

  32. Contempt of court — conduct that disobeys or disrespects the authority of a court, punishable with simple imprisonment or fine or both.

  33. Collegium — the body of senior judges whose recommendations govern the appointment and elevation of judges under present practice, evolved through the Three Judges Cases and not mentioned in the Constitution.

  34. Seniority principle — the unwritten convention that the senior-most judge of the Supreme Court is appointed Chief Justice of India.

  35. Impeachment — the process by which a judge of the Supreme Court or a High Court is removed for incapacity or proven misbehaviour, under Article 124(4) read with the Judges (Inquiry) Act, 1968.

  36. Tribunal — a body created by the Constitution or a statute to adjudicate disputes in a specified field, functioning in a judicial capacity but outside the regular hierarchy of courts.

  37. Quasi-judicial body — a body which is not a court but must nonetheless act judicially when deciding matters affecting the rights of persons.

  38. Regulator — a specialised government agency that frames and enforces rules for compliance in a particular sector.

  39. Judicial review — the power of a court to examine a legislative or executive act and determine whether it is incompatible with the Constitution.

  40. Separation of powers — the constitutional arrangement by which legislative, executive and judicial functions are placed in different organs, each checking the others.

  41. Doctrine of Basic Structure — the doctrine that Parliament may amend any part of the Constitution but cannot destroy its basic or essential features.

  42. Legislative competence — the authority of Parliament or a State legislature to make law on a given subject, determined by the Union, State and Concurrent Lists of the Seventh Schedule under Article 246.

  43. Audi alteram partem — ‘listen to the other side’; the rule of natural justice that no decision may be made against a person without giving her a fair opportunity to be heard.

  44. Golden Triangle — the combined operation of Article 14, Article 19 and Article 21, which a law depriving a person of personal liberty must satisfy.

  45. Post-decisional hearing — a hearing granted after a decision has been taken, where urgency made a prior hearing impracticable.

  46. Procedure established by law — the requirement in Article 21 that a law be validly made and its procedure followed, which after Maneka Gandhi v. Union of India must also be just, fair and reasonable.

1.15 Points to Ponder

  1. The Supreme Court and the High Courts are courts of record, and their proceedings are preserved permanently. Why should a democracy insist that the reasoning of its courts be written down and kept, rather than simply the result of each case?

  2. India chose a single integrated judiciary even though law-making power is divided between the Centre and the States. What might have gone wrong if separate sets of courts had been created for Central and State laws?

  3. In an adversarial system, a point that a lawyer never raises is usually a point the judge never considers. Is that fair to a litigant whose lawyer is less skilled than her opponent’s — and what does the system offer to reduce that inequality?

  4. The collegium system appears nowhere in the Constitution, yet it governs appointments to the highest courts. Is a practice built entirely on judicial interpretation a sound basis for choosing judges?

  5. Judges are protected from removal, from salary cuts and even from discussion in Parliament. Every one of these protections also makes a judge harder to hold to account. Where should the balance between independence and accountability lie?

  6. No judge in India has ever been removed through a completed impeachment, though proceedings have been initiated more than once. Does this show that the safeguard works as intended, or that it is too difficult to use?

  7. Public Interest Litigation allows a stranger to bring a case for someone she has never met. What is gained by relaxing the rule that only the injured person may sue — and what might be lost?

  8. Courts hearing PILs have ordered the relocation of factories, the fuel that buses may use, and the supply of meals to children. Are these judicial decisions, or policy decisions that belong to elected governments?

  9. Free legal aid exists because an adversarial trial is unfair to a person without a lawyer. Yet most eligible people never claim it. What would have to change for a right of this kind to reach the people it was written for?

  10. Tribunals were created to deliver speedy and inexpensive justice in technical fields. If a tribunal decides faster than a court, should its decisions still be open to challenge before a High Court?

  11. The phrase ‘basic structure’ appears nowhere in the Constitution, and its contents have been settled by judges case by case. Is that a strength of the doctrine or a weakness?

  12. In Maneka Gandhi v. Union of India, the words of Article 21 did not change — only their meaning did. Should the meaning of a constitutional provision be capable of growing in this way, or should change come only through amendment?

  13. India’s retirement ages for judges are lower than those in most Western democracies, and post-retirement appointments are usually in the government’s gift. What effect might the prospect of such an appointment have on a serving judge, and how could that concern be addressed?

  14. Article 32 was described by Dr B. R. Ambedkar as the heart and soul of the Constitution. What does it say about a Constitution that its drafters gave the highest place not to a right itself, but to the remedy for enforcing rights?

1.16 Textbook Questions

  1. Fill in the blank: The Judges of the High Court are appointed by the …………… . (Governor / President / Prime Minister)

  2. Fill in the blank: At present there are …………… High Courts in India. (21 / 25 / 28)

  3. Fill in the blank: The retirement age of the Judges of a High Court is …………… years. (60 / 65 / 62)

  4. Besides being an adjudicator and an interpreter, the Supreme Court performs another function under Article 143 of the Indian Constitution. Identify and explain this function of the Supreme Court of India.

  5. The power of judicial review is available to the Supreme Court and to the High Courts of the States in matters of both administrative and legislative action. How far has the principle of judicial review been successful in ensuring fairness in executive actions? Discuss with reference to a decided case.

  6. Can impeachment proceedings be initiated against a sitting judge? If yes, explain the grounds and the procedure for impeachment. How many times has this process been carried through successfully in the history of the Indian judiciary?

  7. What are tribunals? How do they play an instrumental role in rendering dispute resolution more effective?

  8. Elucidate the current practice for the appointment of members of the higher judiciary in India.

  9. List any two constitutional offices endowed with the function of advising and representing the government on legal matters.

1.17 Objective Questions

  1. The Supreme Court of India came into being on:

    1. 26 January 1950
    2. 28 January 1950
    3. 15 August 1947
    4. 26 November 1949

  2. The two institutions replaced by the Supreme Court of India in 1950 were:

    1. the Federal Court of India and the Privy Council’s Judicial Committee
    2. the Calcutta High Court and the Federal Court of India
    3. the Judicial Committee of the Privy Council and the Central Administrative Tribunal
    4. the Federal Court of India and the Allahabad High Court

  3. A judge of a district court is called a ‘Sessions Judge’ when he or she:

    1. presides over a civil case
    2. presides over a criminal case
    3. sits in a metropolitan area
    4. hears an appeal from a Munsiff Court

  4. Under which Article does the Supreme Court exercise exclusive original jurisdiction in a dispute between two States?

    1. Article 32
    2. Article 131
    3. Article 136
    4. Article 143

  5. The writ issued to order the release of a person who has been unlawfully detained is:

    1. mandamus
    2. certiorari
    3. habeas corpus
    4. quo warranto

  6. A Special Leave Petition is filed under:

    1. Article 132
    2. Article 133
    3. Article 134
    4. Article 136

  7. The advisory jurisdiction of the Supreme Court is invoked by:

    1. the Prime Minister
    2. the President
    3. the Attorney General
    4. the Chief Justice of India

  8. The Attorney General of India is appointed under:

    1. Article 76
    2. Article 124
    3. Article 165
    4. Article 217

  9. Which of the following is NOT a qualification prescribed for appointment as a judge of the Supreme Court?

    1. Citizenship of India
    2. Five years as a judge of a High Court
    3. Ten years as an advocate of a High Court
    4. Seven years of practice as a lawyer at the bar

  10. Under the collegium system, the Chief Justice of India consults, for appointments to the Supreme Court:

    1. two senior-most judges of the Supreme Court
    2. four senior-most judges of the Supreme Court
    3. the Union Minister of Law and Justice
    4. all sitting judges of the Supreme Court

  11. A motion for the removal of a judge may be initiated in the Rajya Sabha by a signed notice of at least:

    1. 50 members
    2. 100 members
    3. two-thirds of the members
    4. one-third of the members

  12. The Inquiry Committee in removal proceedings against a judge is constituted under:

    1. Article 218 of the Constitution
    2. Section 3(2) of the Judges (Inquiry) Act, 1968
    3. Article 124(4) of the Constitution
    4. Section 14(2) of the Administrative Tribunals Act, 1985

  13. Tribunals were incorporated into the Constitution by:

    1. the 39th Amendment Act, 1975
    2. the 42nd Amendment Act, 1976
    3. the Administrative Tribunals Act, 1985
    4. the 114th Amendment Bill, 2010

  14. An appeal against an order of the Central Administrative Tribunal lies to:

    1. the Supreme Court directly
    2. a Division Bench of the concerned High Court
    3. the District Court
    4. the Union Minister of Law and Justice

  15. The case in which the principle of judicial review was applied for the first time is:

    1. Kesavananda Bharati v. State of Kerala
    2. Marbury v. Madison
    3. Maneka Gandhi v. Union of India
    4. L. Chandra Kumar v. Union of India

  16. Which case added ‘rule of law’ to the list of basic features of the Constitution?

    1. Minerva Mills
    2. S. R. Bommai
    3. Indra Sawhney v. Union of India
    4. Golaknath

  17. Articles 14, 19 and 21 are together described as:

    1. the Basic Structure
    2. the Golden Triangle
    3. the Seventh Schedule
    4. the Directive Principles

  18. Assertion (A): The Supreme Court’s writ jurisdiction under Article 32 is narrower in one respect than the High Court’s writ jurisdiction under Article 226. Reason (R): Article 226 permits a High Court to issue writs for the enforcement of Fundamental Rights and for any other purpose.

  19. Assertion (A): A judge of the Supreme Court cannot be removed merely because Parliament disagrees with her judgments. Reason (R): Removal is permitted only on the grounds of incapacity and proven misbehaviour, and only after an inquiry and a special majority in both Houses.

  20. Assertion (A): The collegium system is not mentioned anywhere in the Constitution of India. Reason (R): The collegium was evolved by the Supreme Court through its interpretation of the word ‘consultation’ in Articles 124 and 217.

  21. Assertion (A): Parliament cannot use its amending power to abolish judicial review in matters concerning fundamental rights. Reason (R): Judicial review has been held to be a part of the basic structure of the Constitution.

  22. Assertion (A): Tribunals do not take away the exclusive jurisdiction of the courts. Reason (R): Tribunals are procedurally flexible and allow aggrieved persons to appear directly before them.

  23. Assertion (A): In Maneka Gandhi’s case, the Supreme Court held that impounding a passport under the Passport Act, 1967 is itself unconstitutional. Reason (R): The petitioner in that case was given no opportunity of being heard and no valid reasons for the impounding of her passport.

  24. Assertion (A): The salaries of Supreme Court judges are charged on the Consolidated Fund of India. Reason (R): Judicial independence requires that a judge’s emoluments not depend on the vote of the legislature.

1.18 Check Your Concepts

  1. India divides law-making power between the Centre and the States, yet has only one set of courts. Explain why the Constitution chose a single integrated judiciary, and state two problems this choice avoids.

  2. Distinguish between a common law system and a civil law system on the basis of the source of law and the role of the judge.

  3. Distinguish between the adversarial and the inquisitorial models of dispute resolution. Which model do Indian courts follow, and what does that mean for the role of a lawyer?

  4. What is a precedent? Explain why a legal system that binds judges to earlier decisions is thought to be fairer than one that does not.

  5. A person wishes to file a civil suit claiming a small sum of money. Explain how the pecuniary limit of a court decides where that suit must be filed.

  6. The same officer may be described as a District Judge, a Sessions Judge or a Metropolitan Sessions Judge. Explain what determines which title applies.

  7. Arrange the following civil courts in ascending order and name the court that stands lowest in the hierarchy: Senior Civil Judge Court, District Munsiff Court, Junior Civil Judge Court, Principal Junior Civil Judge Court, District Court.

  8. Arrange the following criminal courts in ascending order: First Class Judicial Magistrate Court, Sessions Court, Second Class Judicial Magistrates Court, Chief Judicial Magistrate Court.

  9. Distinguish between the Attorney General of India and the Advocate General of a State on at least four bases.

  10. The Attorney General may speak in either House of Parliament but may not vote there. Explain the reasoning behind this arrangement.

  11. State the five provisions that secure the independence of judges in India, and explain how each one removes a possible means of pressure on a judge.

  12. Why does the Constitution permit the emoluments of judges to be reduced during a financial emergency, when it protects them at all other times?

  13. What would happen to the enforcement of Fundamental Rights if Article 32 did not exist? Answer with reference to the relationship between a right and its remedy.

  14. Identify the provision: under which Article does the Supreme Court have exclusive original jurisdiction in a dispute between the Government of India and a State, and what condition must such a dispute satisfy?

  15. State the proviso to Article 131 and explain what kinds of disputes it excludes from the Supreme Court’s original jurisdiction.

  16. Match each writ to the situation it addresses: (a) a person unlawfully detained; (b) an officer refusing to perform a legal duty; (c) a person holding a public office he is not qualified for; (d) a subordinate court proceeding beyond its jurisdiction.

  17. In two situations an appeal lies to the Supreme Court in a criminal matter without a certificate of the High Court. State both, and explain what the two have in common.

  18. Distinguish between an appeal under Article 133 and a special leave petition under Article 136.

  19. Why is the power under Article 136 described as discretionary, and what purpose does that discretion serve?

  20. Explain the advisory jurisdiction of the Supreme Court under Article 143. State two principles laid down in In re Kerala Education Bill (1958).

  21. What is locus standi? Explain how relaxing this rule made Public Interest Litigation possible.

  22. State any three characteristics of Public Interest Litigation, and explain how PIL differs from ordinary adversarial litigation.

  23. Give any three categories of letter-petitions that will ordinarily be entertained as a PIL under the Supreme Court’s guidelines, and any two categories that will not.

  24. What is suo motu action? Give one example of a matter in which the Supreme Court has exercised this power.

  25. Arrange in the correct order the steps a person must take to obtain legal aid from the Supreme Court Legal Aid Committee.

  26. Distinguish between a lawyer engaged by a party and an amicus curiae appointed by the court.

  27. Compare the writ jurisdiction of the Supreme Court under Article 32 with that of a High Court under Article 226. In what respect is the High Court’s power wider?

  28. What is meant by the power of superintendence of a High Court? Explain how it differs from the power to hear an appeal.

  29. What is a court of record? State the two powers that flow from that status.

  30. State the qualifications prescribed for appointment as a judge of the Supreme Court. Explain why the first qualification must be read together with any one of the others rather than with all of them.

  31. Correct the error: ‘The collegium system for appointing judges is laid down in Article 124 of the Constitution, which provides that the Chief Justice of India shall consult two senior-most judges of the Supreme Court.’

  32. Trace the shift in the balance of power over judicial appointments across the First Judges case (1981), the Second Judges case (1993) and the Presidential reference of 1998.

  33. What is the seniority principle in the appointment of the Chief Justice of India? Explain how an unwritten convention can protect judicial independence.

  34. Why are Chief Justices of High Courts appointed from outside the State concerned?

  35. Arrange the steps in the removal of a Supreme Court judge in the correct order, and state the special majority required at the voting stage.

  36. Article 124(4) requires two different majorities in each House. State both, and explain what each one guards against.

  37. State any three arguments advanced in favour of raising the retirement age of judges in India, and one argument that may be made against it.

  38. Distinguish between a court and a tribunal on the bases of origin, composition, jurisdiction and procedure.

  39. Distinguish between Article 323-A and Article 323-B with respect to subject matter and the authority competent to establish the tribunal.

  40. What is the difference between a regulator and a tribunal? Illustrate your answer with the example given in the chapter.

  41. Identify the provision: which Article divides law-making power between Parliament and the State legislatures, and what are the three Lists it operates through?

  42. Explain why the doctrine of Basic Structure was needed, given that the courts already possessed the power of judicial review.

  43. State the trigger for the Basic Structure doctrine and its limit. Why is it wrong to say that the doctrine prevents Parliament from amending the Constitution?

  44. Minerva Mills held that a limited amending power is itself a basic feature. Explain why this holding matters for the survival of the doctrine.

  45. In S. R. Bommai no constitutional amendment was in question, and yet the basic structure doctrine was applied. Explain how this was possible.

  46. Distinguish between ‘procedure established by law’ and ‘due process of law’. What did Maneka Gandhi v. Union of India change about the relationship between the two in India?

  47. What does the maxim audi alteram partem require? Explain what a post-decisional hearing is and when it becomes appropriate.

  48. Correct the error: ‘Under Article 13(2), a law that violates a Fundamental Right is void in its entirety, and the whole statute must therefore be struck down.’

1.19 Case-Based Questions

  1. Rehana buys a second-hand scooter from a dealer in her district for Rs. 40,000. The scooter turns out to have a forged registration certificate, and the dealer refuses to refund her money. She wants to sue him for the amount. A friend tells her to file the case directly in the High Court, because the High Court is more powerful and will decide faster.
    1. Explain, with reference to pecuniary limits, why Rehana cannot simply choose the court she prefers.
    2. In which court would her suit ordinarily begin, and who fixes the pecuniary limits of that court?
    3. Rehana’s suit is decided against her by the court of first instance. Trace the route by which her case could travel upwards, naming the court at each stage.
    4. Would your answer to (a) change if, instead of suing the dealer for the money, Rehana alleged that a State law regulating second-hand vehicle sales violated her Fundamental Rights? Give reasons.
  2. Vikram is arrested and charged with a serious offence. His family earns about Rs. 9,000 a year and cannot afford a lawyer. On the first date of hearing, Vikram appears in court alone and is told to present his own defence. The trial proceeds and he is convicted. On appeal, the High Court reverses his acquittal on a connected charge and sentences him to death.
    1. Identify two ways in which the law could have ensured that Vikram was represented by a lawyer at his trial.
    2. Explain why the absence of a lawyer is a particularly serious problem in an adversarial system.
    3. Can Vikram appeal to the Supreme Court without a certificate of the High Court? State the provision and the exact circumstance that permits it.
    4. Would your answer to (c) be different if the High Court had sentenced him to five years’ imprisonment instead? Give reasons.
  3. A newspaper reports that residents of a village have been drinking water contaminated by effluent from a nearby factory, and that several children have fallen ill. The residents are poor, mostly illiterate, and none of them has approached any court. Sunita, a law student in a city 200 kilometres away, writes a letter to the Supreme Court setting out the report and asking for directions.
    1. Under the traditional rule of locus standi, could Sunita bring this matter to court? Explain what has changed to make it possible.
    2. Identify the category in the Supreme Court’s PIL guidelines under which such a letter-petition would ordinarily be entertained.
    3. Suppose the Court had itself read the same newspaper report and taken up the matter without any letter being written. What is this power called, and what does it mean?
    4. Sunita’s classmate says that Sunita should instead file the matter as a personal grievance, since her own relatives live in the village. Explain how this fact could affect whether the petition is entertained as a PIL.
  4. Meera, a clerk in a Central Government department, is denied a promotion. She believes the departmental rules were applied wrongly to her service record. She wants a quick and inexpensive remedy and has been told she cannot afford a lawyer.
    1. Which body would decide her dispute, and under which statute was it established?
    2. Explain one procedural feature of that body which makes it particularly suitable for Meera’s situation.
    3. Meera loses. Where does an appeal against that decision lie, and which case settled this position?
    4. Would your answer to (a) change if Meera were an employee of a State Government department instead? Give reasons.
  5. A State Government cancels Ashok’s trading licence by an order that gives no reasons and is served on him without any notice or hearing. The order says the cancellation is ‘in the public interest’. Ashok’s business shuts down the same day.
    1. Name and explain the maxim that the State appears to have violated.
    2. Ashok wishes to challenge the order. Which court can he approach, under which Article, and why is that Article wider in scope than Article 32 for his purpose?
    3. The State argues that the licence was cancelled under a validly enacted statute, and that the statute prescribes no hearing. Explain, with reference to a decided case, why this argument may not succeed.
    4. Suppose the cancellation had been made in an emergency where a prior hearing was genuinely impossible. What remedy did the Supreme Court recognise for such a situation?
  6. Parliament passes a constitutional amendment providing that no court shall examine the validity of any law relating to the conduct of national elections. A petitioner challenges the amendment before the Supreme Court.
    1. Can a constitutional amendment be challenged at all? State the doctrine that permits this and the case in which it was settled.
    2. Identify the basic feature that this amendment appears to damage, and name the case that added that feature to the list.
    3. The Government argues that Parliament’s power under Article 368 extends to every part of the Constitution. Explain how the Supreme Court has answered this argument.
    4. Suppose instead the amendment had only changed the number of judges on the Supreme Court. Would the doctrine apply? Give reasons.
  7. Two neighbouring States are in dispute over the sharing of water from a river that flows through both. Each asserts a legal right to a fixed share under a written agreement executed in 1946, which continues in operation. One State files a suit in the High Court of its own capital city; the other files a petition directly in the Supreme Court.
    1. Which court has jurisdiction over a dispute between two States, and under which Article?
    2. Explain the significance of the words ‘to the exclusion of any other court’ for the suit filed in the High Court.
    3. Identify the proviso to that Article, and explain how the date of the agreement affects the answer.
    4. Would your answer change if the dispute arose out of an agreement executed in 1985 instead? Give reasons.
  8. A judge of a High Court is accused of accepting money to decide a case in a particular way. A member of the Lok Sabha proposes that the judge be dismissed immediately by an order of the Union Law Minister, arguing that no judge guilty of such conduct should be allowed to sit for another day.
    1. Explain why the judge cannot be removed in the manner proposed, and state the only two grounds on which a judge may be removed.
    2. Set out, in order, the steps that must be followed for the removal of a High Court judge, naming the provision that governs each stage.
    3. How many members must sign the notice of motion, and does the answer differ between the two Houses?
    4. A colleague argues that this stringent process protects corrupt judges. Explain the reason the Constitution nevertheless makes removal so difficult.

1.20 Landmark Cases & Maxims

  1. State the principle settled in Marbury v. Madison (1803), and explain how the Court arrived at it while refusing the relief the petitioner had asked for.

  2. State the principle laid down in Kesavananda Bharati v. State of Kerala (1973). Why is it said that this decision rejected both of the earlier positions taken by the Court?

  3. Identify the case in which the Supreme Court first held that Parliament’s power to amend the Constitution under Article 368 extended to the Fundamental Rights, and the case in which that position was reversed.

  4. Which case struck down Clause (4) of Article 329-A, and what did that clause seek to place beyond the scrutiny of the judiciary?

  5. Name the two features added to the list of basic structure features in Minerva Mills (1980), and state what the Court held about the amending power itself.

  6. Which case added the rule of law to the list of basic features of the Constitution, and what was the principal question the Court was examining in that case?

  7. State the principle settled in L. Chandra Kumar v. Union of India. Which forum did the Court hold could scrutinise the decisions of tribunals?

  8. State three propositions established in Maneka Gandhi v. Union of India (1978) concerning Article 21.

  9. Identify the case referred to in this chapter as the first Public Interest Litigation in India, the year it was decided, and the two rights the Court read into Article 21 in deciding it.

  10. Which decision held that policies of a State government directed against an element of the basic structure would be a valid ground for the exercise of central power under Article 356?

  11. State two principles laid down in In re Kerala Education Bill (1958) regarding the advisory jurisdiction of the Supreme Court, and state how the position was stated differently in In re Special Courts Bill (1979).

  12. Match each maxim or expression in Column A to the situation it governs in Column B.

Column A Column B
a. audi alteram partem i. A court appoints an Advocate to argue the case of an unrepresented accused.
b. suo motu ii. A court initiates proceedings on the basis of a newspaper report, without any petition.
c. amicus curiae iii. An authority cancels a benefit without giving the affected person any hearing.
d. locus standi iv. A public-spirited organisation asks to be heard on behalf of persons who cannot approach the court themselves.

  1. Give the literal meaning and the legal meaning of audi alteram partem, and name the case studied in this chapter in which it was applied.

  2. Which authority governs each of the following fact situations? (a) A tribunal’s order is challenged as final and unappealable. (b) A constitutional amendment removes judicial review over a class of laws. (c) A passport is impounded without any hearing. (d) A citizen writes a letter to a judge on behalf of prisoners awaiting trial.

  3. Explain the expression ‘sentinel on the qui vive’ as applied to the Supreme Court, and give one example from the chapter of the Court acting in that character.

  4. Name the three decisions collectively known as the Three Judges Cases by the year in which each was decided, and state in one sentence what each settled about judicial appointments.