Chapter 5: Civics: The Supreme Court
On 28 January 1950, a new court opened in Delhi without a building of its own. It sat in the Chamber of Princes, a domed room inside Parliament House where the Federal Court of India had met since 1937. The room was borrowed. The power was new. Until two days earlier, the last word on an Indian case had not belonged to any court in India. An appeal could travel from a High Court in Madras or Allahabad to the Judicial Committee of the Privy Council in London, where judges who had never set foot in India decided what Indian law meant. The members of the Constituent Assembly had to settle where that final word would now sit. They chose Delhi. They then had to settle something harder. How much should a court be allowed to do? Should it only decide quarrels between people and between governments? Or should it also be able to examine a law passed by an elected Parliament, and hold that the law cannot stand? The Court opened with a Chief Justice and seven other judges. Harilal J. Kania was the first Chief Justice of India. Today the Court is several times that size, and it hears kinds of cases that nobody sitting in that borrowed room had thought to list. This chapter is about the court that opened that morning, and about the choices built into it.
Diagram
Fig. 5.0-1 Caption: The Supreme Court sat in the Chamber of Princes in Parliament House until it moved to its own building in 1958. Brief: Photograph or accurate drawing of the circular, domed Chamber of Princes room in Parliament House, New Delhi. Label the dome and the semicircular seating. Caption line must state that this was a borrowed room, not a purpose-built courtroom.
5.1 The Single Integrated Judicial System
India has one set of courts for the Union and for the States alike, arranged in a single rising order. At the top stands the Supreme Court. Below it stand the High Courts of the States, and under each High Court sits a hierarchy of subordinate courts in the districts.
This arrangement is called a single integrated judiciary — one pyramid of courts, applying one body of law, with one final court at its apex. India is a federal country, in which powers are divided between the Union and the States, as you have already seen. Its courts, however, are not divided in the same way.
5.1.1 What A Single Integrated System Means
Three things follow from the word ‘integrated’, and each of them is worth pinning down.
The Supreme Court heads the entire system. Its decisions bind every other court in the country, and no High Court or district court may depart from them.
There is no separate set of laws for the Union and a different set for each State. A single body of civil and criminal law runs through the whole country, and the same courts apply it.
A case begun in the lowest court can travel upward. It moves by way of appeal — a request to a higher court to examine the decision of a lower one and confirm, change or set it aside.
The shape of this system is easiest to see as a pyramid, as Fig. 5.1-1 shows.
Diagram
Fig. 5.1-1 Caption: One pyramid of courts serves both the Union and the States, with the Supreme Court at its apex. Brief: A three-tier pyramid. Top band labelled ‘Supreme Court’, middle band ‘High Courts’, base band ‘Subordinate Courts’. A single upward arrow along the left edge labelled ‘route of appeal’. No state boundaries and no second parallel pyramid.
The pyramid shows rank, and it shows the direction in which an appeal travels. It cannot show how many cases move at each level. In practice the overwhelming majority of disputes are decided in the subordinate courts and never rise any higher, so the widest band of the pyramid is also the one that does most of the country’s judicial work.
The drawing also says nothing about who runs each level from day to day. Each High Court supervises the subordinate courts within its own State; the Supreme Court’s hold on the system runs through its judgements and through its power to hear appeals, not through daily administration.
5.1.2 Why India Chose One System
A federation does not have to be built this way. In the United States there are two judicial systems side by side — federal courts applying federal law, and each State’s own courts applying that State’s law. A case may begin and end entirely within one of them. The framers of our Constitution considered such a set-up and did not adopt it.
Three reasons weighed with them, and all three are reasons about what a court is for rather than about tidiness.
In a representative democracy the rights of individuals need protection against interference by the executive or the legislature. That protection is worth little unless the court giving it stands apart from both.
A federal set-up divides powers between the Union and the States by a written Constitution. Somebody must decide, with authority over both, when one side has crossed the line drawn for it.
One Constitution ought to mean the same thing in Jaipur as in Chennai. If several unconnected systems of courts interpreted it, the same words could come to carry different meanings in different States.
A single system also carries a cost, and it is a cost the framers accepted knowingly. Every serious question in the country’s law must in the end climb toward one small court in Delhi, and a litigant from a distant district must travel far to reach it.
5.2 Composition, Qualifications And Appointment
A court is a set of people before it is anything else. Who those people are, how they are chosen and how long they stay decides what kind of court it will be. This section takes those three questions in order.
5.2.1 The Strength And Seat Of The Court
The Supreme Court consists of the Chief Justice of India and not more than thirty-three other judges, until Parliament by law prescribes a larger number. The judges other than the Chief Justice are known as puisne judges, an old word meaning simply the other judges of the court.
The Constitution did not fix this number for all time. It left the strength to be raised by an ordinary law of Parliament, and Parliament has raised it several times as the Court’s work grew. The most recent increase was made by the Supreme Court (Number of Judges) Amendment Act, 2019, which took the number of judges other than the Chief Justice from thirty to thirty-three.
This is worth pausing on. The size of the country’s highest court is not protected by the Constitution’s own text; it can be changed by a simple majority in both Houses, like any other law.
The Court sits in Delhi. It may sit elsewhere if the Chief Justice of India so decides with the approval of the President, though in practice it has always sat in the capital.
5.2.2 Qualifications Of Judges
A person is not qualified for appointment as a Judge of the Supreme Court unless he or she is a citizen of India, and satisfies one of three further conditions.
Has been for at least five years a Judge of a High Court, or of two or more such courts in succession.
Has been for at least ten years an advocate of a High Court, or of two or more such courts in succession.
Is, in the opinion of the President, a distinguished jurist. A jurist is a scholar of law — someone who studies and writes about what the law is and ought to be, rather than arguing cases in court.
Notice what is being balanced here. The first two routes ask for long experience of courtroom work, either on the bench or at the bar. The third opens a door for a legal thinker who may never have been a judge at all, and it has so far never been used.
Notice also what the list does not contain. There is no examination, no fixed minimum age and no requirement of any particular kind of legal practice. The Constitution sets a floor of experience and then trusts the appointing process to do the rest.
5.2.3 How Judges Are Appointed
Every Judge of the Supreme Court is appointed by the President of India. The President acts here, as in almost all matters, on the advice of the Council of Ministers, so the government of the day is a real participant in the choice.
Before appointing a judge, the President consults such judges of the Supreme Court and of the High Courts as are thought necessary. For the appointment of any judge other than the Chief Justice, the Chief Justice of India must always be consulted. By convention the senior-most judge of the Supreme Court is appointed as Chief Justice of India.
The Collegium In Practice
That last question was not settled by the words of the Constitution. It was settled by the Supreme Court itself, in a line of judgements delivered in the 1990s, which held that consultation here means concurrence — the government cannot appoint against the judiciary’s view.
Out of those judgements grew the collegium, a body of the Chief Justice of India and the four senior-most judges of the Supreme Court, which recommends who should be appointed. The Union Minister of Law and Justice carries the recommendation forward, and the Prime Minister advises the President in the matter.
Two smaller provisions complete the picture. When there is not a full bench available, the Chief Justice may, with the previous consent of the President, ask a qualified High Court judge to sit as an ad hoc judge of the Supreme Court, after consulting the Chief Justice of that High Court. The Chief Justice may also, with the President’s consent, request a retired judge to sit for a while.
5.2.4 Term Of Office, Resignation And Removal
A Judge of the Supreme Court holds office until attaining the age of sixty-five years. There is no fixed term of so many years, and no reappointment; the retiring age does the work that a term would otherwise do.
A judge may resign by writing to the President. Apart from resignation and retirement, there is only one way a judge can leave office, and the Constitution makes it deliberately difficult.
A judge may be removed by an order of the President, on the ground of proved misbehaviour or incapacity, only after each House of Parliament has passed an address to that effect. The word ‘proved’ is doing serious work. Parliament has made a law under which the charge is examined by an inquiry committee before the Houses vote, so that a motion rests on findings and not on displeasure.
The required majority in each House is unusually heavy, and FC 5.1 sets out the whole chain.
Flowchart
FC 5.1 — How A Judge Of The Supreme Court May Be Removed Caption: The procedure for removing a judge on the ground of proved misbehaviour or incapacity. Nodes: Motion signed by the required number of members is given to the presiding officer of either House → presiding officer admits the motion, or declines to admit it and the process ends → an inquiry committee examines the charge → committee finds the charge not proved, and the motion is dropped → OR committee finds the charge proved → the House takes up the motion → the address is passed by a majority of the total membership of that House and by not less than two-thirds of the members present and voting → the other House passes the address in the same session by the same majorities → if either House fails to pass it, the judge remains in office → both Houses having passed it, the address is presented to the President → the President makes the order of removal.
Read the two majorities together. A judge cannot be removed by whichever side happens to command a simple majority on the day; the numbers required are large enough that the government and a substantial part of the opposition must agree. This procedure is commonly called impeachment, although the Constitution itself uses that word for the removal of the President.
5.3 The Independence Of The Judiciary
5.3.1 Why Independence Was Built In
Most of the cases that matter most in constitutional law are cases in which the government is one of the parties. A citizen says a rule has taken away a right. A State says the Union has stepped outside its powers. Somebody has to decide, and that somebody is a judge.
Now ask the design question. If the same government could set the judge’s pay, cut it when displeased, move the judge elsewhere or end the appointment, what would the judgement be worth? A court that can be squeezed is not deciding the case; it is reporting the wishes of whoever holds the squeeze.
The Constitution therefore does not merely declare that the judiciary is independent. It removes, one by one, the specific levers by which the executive or the legislature could otherwise reach a judge. Each safeguard in this section answers a particular lever.
5.3.2 Safeguards In Appointment And Removal
The first lever is the power to choose. It is blunted by bringing the judiciary into its own appointments, so that a judge does not owe the office to ministers alone.
The second and heavier lever is the power to dismiss. A judge of the Supreme Court cannot be removed by any ordinary administrative order, by the Chief Justice, or by a simple majority in Parliament. Removal is possible only on the ground of proved misbehaviour or incapacity, by the procedure set out in FC 5.1, and the majorities that procedure demands are far beyond the reach of a displeased ministry.
The retiring age of sixty-five works in the same direction. A judge does not have to be re-appointed, has nothing to ask of the government at the end of a term, and therefore has nothing to lose by deciding against it.
5.3.3 Safeguards Of Tenure, Salary And Service
The third lever is money, and the Constitution closes it in two ways.
First, the salaries, allowances and service conditions of a judge cannot be changed to that judge’s disadvantage after appointment. The one exception is a Financial Emergency, during which salaries may be reduced.
Second, the salaries, allowances and pensions of the judges, and the administrative expenses of the Supreme Court, are charged on the Consolidated Fund of India — the account into which the government’s revenues flow. Charged expenditure is not put to the vote of Parliament each year. Members may discuss it, but they cannot cut it, and cannot use the annual budget as a lever against the Court.
A fourth safeguard follows a judge out of office. A retired Judge of the Supreme Court may not plead or act before any court or authority within India. The purpose is plain: a judge still on the bench should have no employer to please after retirement, and should not later appear before former colleagues.
5.3.4 Safeguards Of The Court’s Own Working
A court can also be weakened from outside the courtroom, by pressure on how it works rather than on who sits in it. Four further safeguards deal with this.
Judges are free to announce their decisions and decrees without fear for their person or property, and they cannot be sued for what they decide in court. It is the duty of the State to ensure their safety.
The Supreme Court can punish for contempt of court — conduct that disobeys a court’s order, obstructs the course of justice, or lowers the authority of the court. Fair criticism of a judgement is not contempt; a judgement may be argued with, in print and in public, and often is.
The Court has full control over its own procedure and establishment. It makes the rules of practice for those appearing before it, and appointments of its officers and staff are made by the Chief Justice or a judge so directed, free of any outside agency.
No discussion may take place in Parliament on the conduct of a judge in the discharge of duties, except when a motion for removal is before the House.
Taken together, these devices do not make the judiciary superior to the other two organs. They make it unreachable by them in the one respect that matters — the deciding of a case.
5.4 The Jurisdiction Of The Supreme Court
Jurisdiction is the power of a court to hear a particular kind of case and to decide it. A court without jurisdiction over a matter cannot help you, however strong your case may be, and its first question is always whether the matter belongs to it at all.
The Supreme Court’s jurisdiction comes in four kinds. It hears some disputes first, before any other court has touched them. It hears appeals from below. It gives an opinion when the President asks for one. It can look again at its own decisions.
5.4.1 Original Jurisdiction
Original jurisdiction is the power to hear and decide a dispute in the first instance — that is, at its beginning, and not on appeal from another court.
5.4.1.1 Federal Disputes
The core of this power is federal. In a country where powers are divided between the Union and the States, the two will sometimes disagree about where the line runs, and no ordinary court could sensibly decide such a quarrel.
The Supreme Court has exclusive original jurisdiction in any dispute of these three kinds.
Between the Government of India and one or more States.
Between the Government of India and any State or States on one side, and one or more other States on the other.
Between two or more States.
‘Exclusive’ is the important word. Such a dispute cannot be filed anywhere else, and no High Court may take it up. The dispute must also involve a question on which the existence or extent of a legal right depends; a political disagreement between two governments is not by itself a case.
This jurisdiction does not extend to every quarrel between governments. Three classes of matter are kept out of it.
A dispute arising out of a treaty, agreement or similar instrument entered into before the Constitution came into force and still in operation.
Certain other matters placed elsewhere by law or by the Constitution, such as disputes over inter-State river waters and matters referred to the Finance Commission — the body that recommends how tax revenues are shared between the Union and the States.
The adjustment of certain expenses and pensions between the Union and the States.
Notice the pattern in these exclusions. Each of them has been given to some other machinery — a tribunal, a commission, or a process of consultation — because Parliament judged that machinery fitter for the task than a court.
5.4.1.2 Other Cases Of First Instance
Two further kinds of case come to the Supreme Court at first instance, and neither is a federal dispute.
The first is the enforcement of Fundamental Rights. Any person whose fundamental right has been violated may move the Supreme Court directly, and the Court may issue writs to enforce it. This power is dealt with fully in section 5.6. It is original, but it is not exclusive — a High Court may be approached for the same purpose.
The second is the transfer of cases. Under a provision added to the Constitution by the Forty-second Amendment in 1976, the Supreme Court may withdraw to itself cases pending in one or more High Courts if they involve the same substantial questions of law of general importance. It may also transfer a case from one High Court to another in the interests of justice.
Transfer matters more than it sounds. When the same constitutional question is being argued in six High Courts at once, six different answers may emerge; bringing the cases together produces one answer for the whole country.
5.4.2 Appellate Jurisdiction
Appellate jurisdiction is the power to hear an appeal against a judgement already delivered by a lower court, and to confirm, alter or reverse it. The Supreme Court is the final Court of Appeal in India: beyond it there is nowhere to go.
An appeal lies to the Supreme Court from a judgement or final order of a High Court, in constitutional, civil and criminal matters. In most cases it does not lie automatically. The High Court must first grant a certificate saying that the case is fit to go up, and FC 5.2 shows what happens when it does and when it refuses.
Flowchart
FC 5.2 — How A Case Reaches The Supreme Court On Appeal Caption: The routes by which a judgement of a High Court can be carried to the Supreme Court. Nodes: High Court delivers judgement → the losing party asks the High Court for a certificate of fitness to appeal → the High Court grants the certificate, and the appeal lies to the Supreme Court as of right → OR the High Court refuses the certificate → the party petitions the Supreme Court for special leave to appeal → the Supreme Court refuses leave, and the High Court’s judgement stands → OR the Supreme Court grants special leave, and hears the appeal → in certain criminal cases no certificate is needed at all, and the appeal lies directly.
5.4.2.1 Constitutional Cases
An appeal lies to the Supreme Court from any judgement of a High Court, whether in a civil, criminal or other proceeding, if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.
If the High Court refuses such a certificate, the door is not shut. The party may ask the Supreme Court itself for special leave to appeal.
5.4.2.2 Civil Cases
A civil case is a dispute about rights between private parties or between a person and the State — over property, contract, money or status — as distinct from a prosecution for an offence.
An appeal in a civil matter lies to the Supreme Court if the High Court certifies two things.
That the case involves a substantial question of law of general importance.
That, in the High Court’s opinion, the question needs to be decided by the Supreme Court.
Both conditions must be met. A large sum of money at stake is not enough; the question must be one whose answer will matter beyond the parties before the court.
5.4.2.3 Criminal Cases
In criminal matters the Constitution allows an appeal without any certificate in two situations, because in both of them a life is at stake and a lower court has already been contradicted.
Where the High Court has, on appeal, reversed an order of acquittal passed by a lower court and sentenced the accused to death.
Where the High Court has withdrawn a case from a subordinate court for trial before itself, convicted the accused, and sentenced the accused to death.
In every other criminal case, an appeal lies only if the High Court certifies that the case is a fit one for appeal to the Supreme Court.
5.4.2.4 Appeal By Special Leave
Alongside these routes stands a power of a different character. The Supreme Court may, in its discretion, grant special leave to appeal from any judgement, decree, sentence or order passed by any court or tribunal in India — not only a High Court. A tribunal is a body set up by law to decide disputes of one particular kind, such as tax or service matters, without being a court in the ordinary sense.
The Court has said that this power is meant for exceptional circumstances and not for a routine second appeal. In civil matters leave is not granted unless a question of law or of general public interest is involved. In criminal matters the Court steps in where exceptional circumstances exist and grave injustice has been done. It may also set aside the decision of a tribunal that has gone beyond its own jurisdiction or ignored the rules of natural justice.
The two jurisdictions we have now covered are easy to confuse, so the difference is worth setting out plainly. Original jurisdiction is about where a case starts; appellate jurisdiction is about where a case ends up after somebody has already lost.
5.4.3 Advisory Jurisdiction
Advisory jurisdiction is the power of the Court to give its opinion on a question referred to it, without deciding a dispute between parties. The President of India may make such a reference in two classes of matter.
Any question of law or fact of public importance that has arisen, or is likely to arise, on which the President considers it necessary to obtain the Court’s opinion.
Disputes arising out of pre-Constitution treaties and agreements, which are excluded from the Court’s original jurisdiction.
The opinion given is advisory. It is not a judgement, it is not executable, and the government is not bound to act on it. In the first class of matter the Court may also decline to answer, and it has done so; in the second it reports its opinion.
Advisory jurisdiction is used sparingly, and there is a reason for the caution. A court decides best when it has two sides arguing before it and a real dispute to settle; an opinion given in the abstract lacks both.
5.4.4 Revisory Jurisdiction
Revisory jurisdiction is the Supreme Court’s power to review a judgement or order it has itself made, in order to remove a mistake or error that has crept into it.
The power exists because of what the Supreme Court is. Its decisions are final and are recorded as evidence for all later courts, so an error left standing in them would be repeated far beyond the case in which it was made. No other court can correct the Supreme Court, and therefore the Court must be able to correct itself.
Review is not a second hearing of the same arguments. It is confined to what the Court’s own rules allow — an error apparent on the face of the record, the discovery of important new matter, or a similar sufficient reason.
5.5 Judicial Review And The Court Of Record
5.5.1 The Power Of Judicial Review
A written Constitution is a set of limits. It says what the Union may do, what a State may do, and what neither may do to a citizen. Limits, however, mean nothing unless somebody can declare that one has been crossed.
Judicial review is the power of a court to examine a law or an executive order and to set it aside if it conflicts with the Constitution. A law struck down in this way is said to be ultra vires — a Latin phrase meaning ‘beyond the powers’ of the body that made it — and it is void, as though it had never been passed.
The power reaches widely. The Supreme Court may review laws made by Parliament and by the State legislatures, and orders made by the executive at either level. It may hold them void if they go against the letter or the spirit of the Constitution, or take away a Fundamental Right.
Judicial review is not a power the Court can start using on its own. It works only when a case is brought, and it decides that case. The Court cannot summon a law before itself and pass judgement on it because it disapproves.
In the same year the Court set aside an order that had withdrawn recognition from the former rulers of the princely states. Parliament answered that decision too, by amending the Constitution itself. Read together, the two episodes show a conversation between the organs rather than a contest one of them simply wins.
5.5.2 Why Judicial Review Is Needed
Three arguments are usually given for placing this power in a court, and each rests on something about how a written Constitution actually works.
The Constitution divides powers between the Union and the States. When one of them is said to have gone beyond its share, the dispute must be settled by a body standing outside both.
Constitutional language is general, and general words can be read in more than one way. Somebody has to say authoritatively what they mean in a concrete case, and the alternative is that each government interprets the Constitution in its own favour.
A legislature cannot be a fair judge of the limits on its own power. Asking it to rule on the validity of its own law would put the same body on both sides of the question.
5.5.3 The Supreme Court As A Court Of Record
A court of record is a court whose proceedings and judgements are recorded and preserved for perpetual memory, are admitted as evidence, and cannot be questioned when they are produced before any subordinate court. The Constitution declares the Supreme Court to be a court of record. Two consequences follow.
The first concerns its judgements. They are preserved as record and can be produced in any court as precedents — earlier decisions that a court is bound to follow when a later case raises the same point of law. This is how a single Supreme Court judgement settles the law for every court in the country, and not merely for the parties who fought that case.
The second concerns its authority. A court of record has the power to punish for contempt of itself, and the Supreme Court has that power. No other authority can take it away, because it flows from the Constitution and not from any ordinary law.
Precedent has a cost as well as a use, and it is worth naming. A binding decision saves later courts from deciding the same question over and over, and it lets people know in advance where they stand. It also means that a mistake, once made at the top, spreads downward through every court below — which is exactly why the Court keeps the power of review discussed in section 5.4.4.
Judicial review and the record together explain a description often used of this Court. It is called the guardian of the Constitution because it can hold a law void, and the final interpreter of the Constitution because what it says the words mean is what they mean, for every other court, until it says otherwise.
5.6 Enforcement Of Fundamental Rights And The Writs
5.6.1 The Right To Move The Supreme Court
A right that cannot be enforced is a promise, not a right. The Constitution therefore does not stop at listing the Fundamental Rights. It gives every person a further right — the right to go to the Supreme Court directly when one of those rights is violated, and to have it enforced.
This is unusual, and it was meant to be. The right to move the Court for the enforcement of Fundamental Rights is itself a Fundamental Right, so the remedy stands on the same footing as the rights it protects. Dr B. R. Ambedkar, who piloted the draft Constitution through the Constituent Assembly, described this provision as the heart of the document.
A writ is a written order issued by a court, directing a person or an authority to do a particular act or to refrain from doing one. The Supreme Court may issue writs only for the enforcement of Fundamental Rights. A High Court may issue them for that purpose too, and also for the enforcement of other legal rights, so its writ power is in one respect wider.
The Constitution also prohibits the State from making any law that takes away or abridges a Fundamental Right. A law that does so is void to that extent, and the enforcement of some of these rights may be suspended only in the circumstances the Constitution itself provides.
FC 5.3 sets out the path such a petition takes.
Flowchart
FC 5.3 — How A Fundamental Right Is Enforced Caption: The route a petition takes when a person claims that a Fundamental Right has been violated. Nodes: A Fundamental Right is violated by the State or a public authority → the person files a writ petition in the Supreme Court, or in the High Court of the State → the court examines whether a Fundamental Right is involved → no such right is involved, and the petition is dismissed → OR a right is involved, and notice is issued to the authority → both sides are heard → the court finds no violation, and the petition is dismissed → OR the court finds a violation and issues the appropriate writ, direction or order → the authority is bound to comply, and disobedience is contempt of court → a High Court’s decision may be carried to the Supreme Court on appeal.
Petitions Written On A Postcard
The people whose rights are most often violated are frequently the least able to hire a lawyer or draft a petition. A remedy available only to those who can afford it would protect the wrong half of the country.
The Supreme Court therefore simplified its own procedure in the area of Public Interest Litigation — a proceeding in which a person moves the court on behalf of others whose rights have been affected, rather than for a personal grievance. A complaint written on a postcard or a plain application has been registered as a petition, and orders passed on it. The grievances of women, children, bonded labourers and other weaker sections have been taken up in this way.
5.6.2 The Five Writs
Each writ answers a particular kind of wrong. Learning them as five Latin names teaches nothing; learning what each one is for is the whole of the matter.
Habeas corpus means ‘to have the body’. The court orders the person who is holding another in custody to produce that person before it and to justify the detention. If the detention is not lawful, the court orders release. It is the chief safeguard of personal freedom, and it works against private persons as well as against the State.
Mandamus means ‘we command’. It is an order to a public authority, an official or a lower court to perform a public duty that it has failed or refused to perform. It cannot be issued to compel a private individual with no public duty.
Prohibition is an order from a superior court to a lower court or tribunal, telling it to stop proceedings in a case that lies beyond its jurisdiction. It is issued while the proceedings are still going on.
Quo warranto means ‘by what authority’. The court asks a person holding a public office to show the authority under which the office is held, and removes that person if there is none. It prevents an office from being occupied by someone with no right to it.
Certiorari means ‘to be informed’. A superior court calls up the record of a case from a lower court or tribunal, and quashes an order that court has already passed without jurisdiction or against the rules of natural justice.
Two of these are constantly confused with each other, and the difference between them is one of timing rather than of purpose. Prohibition stops a lower court before it decides; certiorari undoes what a lower court has already decided.
The writs share one feature worth noticing at the end. Each of them is an order to somebody in authority — a jailer, an official, a tribunal, an office-holder — and each assumes that authority can be made to answer. That assumption is what the whole chapter has been about.
5.7 Summary
India has a single integrated judiciary: one pyramid of courts for the Union and the States alike, with the Supreme Court at the apex, the High Courts below it, and subordinate courts under each High Court. One body of civil and criminal law runs through the whole country, and a case can travel upward by way of appeal.
A single system was chosen for three reasons: rights need a court standing apart from the executive and the legislature; a federal division of powers needs one umpire with authority over both sides; and one Constitution should carry the same meaning everywhere in the country.
The Supreme Court consists of the Chief Justice of India and not more than thirty-three other judges, until Parliament prescribes a larger number. The strength was last raised by the Supreme Court (Number of Judges) Amendment Act, 2019. The Court sits in Delhi, or elsewhere if the Chief Justice so decides with the President’s approval.
A judge must be a citizen of India and must satisfy one of three conditions:
- five years as a Judge of a High Court, or of two or more such courts in succession;
- ten years as an advocate of a High Court, or of two or more such courts in succession;
- in the opinion of the President, a distinguished jurist.
Judges are appointed by the President, who must always consult the Chief Justice of India for appointments other than that of the Chief Justice. Judgements of the 1990s held that consultation here means concurrence, and from them grew the collegium of the Chief Justice and the four senior-most judges, which recommends appointments.
A judge holds office until the age of sixty-five and may resign by writing to the President. Removal is possible only for proved misbehaviour or incapacity, by an address passed in each House by a majority of that House’s total membership and by two-thirds of the members present and voting. No judge of the Supreme Court has been removed by this procedure.
The independence of the judiciary is secured by closing, one at a time, the levers through which the executive or the legislature could reach a judge:
- the judiciary participates in its own appointments, and removal is made deliberately difficult;
- salaries and service conditions cannot be varied to a judge’s disadvantage, except during a Financial Emergency, and are charged on the Consolidated Fund of India, so Parliament cannot vote them down;
- judges decide without fear and cannot be sued for what they decide; the Court can punish for contempt; it controls its own procedure, staff and establishment;
- Parliament may not discuss a judge’s conduct except on a motion for removal, and a retired judge may not practise before any court in India.
Original jurisdiction is the power to decide a dispute in the first instance. The Supreme Court has exclusive original jurisdiction in disputes between the Union and one or more States, between the Union with some States on one side and other States on the other, and between two or more States. It does not extend to disputes arising from pre-Constitution treaties still in operation, to inter-State water disputes and matters referred to the Finance Commission, or to the adjustment of certain expenses and pensions.
The Court also acts at first instance in enforcing Fundamental Rights, and may withdraw to itself, or transfer between High Courts, cases raising the same substantial question of law of general importance.
Appellate jurisdiction is the power to hear an appeal against a judgement already delivered, and the Supreme Court is the final Court of Appeal. An appeal lies in constitutional, civil and criminal matters, usually on a certificate from the High Court; in two criminal situations, both ending in a death sentence, no certificate is needed. Under its power of special leave the Court may, in its discretion, allow an appeal from any court or tribunal in India, in exceptional circumstances.
Advisory jurisdiction allows the President to refer a question of law or fact of public importance, or a dispute arising from a pre-Constitution treaty, for the Court’s opinion. The opinion is not binding and is not executable as a judgement. Revisory jurisdiction is the Court’s power to review its own judgement or order to remove an error, and exists because no other court can correct it.
Judicial review is the power to examine a law or executive order and hold it void — ultra vires — if it conflicts with the Constitution. It extends to laws of Parliament and of the State legislatures and to executive action, works only when a case is brought, and requires at least five judges where a substantial question of interpretation of the Constitution arises.
As a court of record, the Supreme Court’s judgements are preserved, admitted as evidence and binding on all courts as precedents, and it has the power to punish for contempt of itself. These two powers together make it the guardian and the final interpreter of the Constitution.
The right to move the Supreme Court for the enforcement of Fundamental Rights is itself a Fundamental Right. The Court enforces these rights through five writs: habeas corpus, to produce a detained person and justify the detention; mandamus, to command a public authority to do its duty; prohibition, to stop a lower court exceeding its jurisdiction; quo warranto, to question the authority by which a public office is held; and certiorari, to quash an order already made without jurisdiction. Through Public Interest Litigation, the Court has simplified its procedure so that a person may move it on behalf of others unable to come themselves.
The Idea In One Place
The Supreme Court exists because a written Constitution is a set of limits, and limits need somebody able to say when one has been crossed.
Almost everything else in this chapter follows from that single job. The Court is placed above one integrated system so its word settles the law everywhere; its judges are protected in their tenure and their pay so that they can decide against the government that pays them; and its jurisdictions describe the different doorways through which such a question can reach it.
The question the chapter leaves open is the one its own design creates. Judges who can strike down a law are answerable to no electorate, and the argument over who should choose them, and how far they should go, is not settled by the text of the Constitution.
5.8 Key Terms
- Advisory jurisdiction — the Court’s power to give its opinion on a question referred to it by the President, without deciding a dispute between parties; the opinion is not binding.
- Appeal — a request to a higher court to examine the decision of a lower one and confirm, alter or set it aside.
- Appellate jurisdiction — the power to hear an appeal against a judgement already delivered by a lower court.
- Certiorari — ‘to be informed’; a writ by which a superior court calls up the record of a case and quashes an order a lower court or tribunal has already passed.
- Collegium — the body of the Chief Justice of India and the four senior-most judges of the Supreme Court, which recommends who should be appointed a judge.
- Consolidated Fund of India — the account into which the government’s revenues flow; expenditure charged on it, such as judges’ salaries, is not put to the vote of Parliament.
- Contempt of court — conduct that disobeys a court’s order, obstructs the course of justice or lowers the authority of the court; fair criticism of a judgement is not contempt.
- Court of record — a court whose proceedings and judgements are preserved, admitted as evidence, and cannot be questioned before a subordinate court, and which can punish for contempt of itself.
- Habeas corpus — ‘to have the body’; a writ ordering that a person held in custody be produced before the court and the detention justified.
- Judicial review — the power of a court to examine a law or executive order and set it aside if it conflicts with the Constitution.
- Jurisdiction — the power of a court to hear a particular kind of case and to decide it.
- Mandamus — ‘we command’; a writ ordering a public authority, official or lower court to perform a public duty it has failed to perform.
- Original jurisdiction — the power to hear and decide a dispute in the first instance, before any other court has tried it.
- Precedent — an earlier decision that a court is bound to follow when a later case raises the same point of law.
- Prohibition — a writ from a superior court ordering a lower court or tribunal to stop proceedings in a case beyond its jurisdiction.
- Public Interest Litigation — a proceeding in which a person moves the court on behalf of others whose rights have been affected, rather than for a personal grievance.
- Quo warranto — ‘by what authority’; a writ asking a person holding a public office to show the authority under which it is held.
- Revisory jurisdiction — the Court’s power to review a judgement or order it has itself made, in order to remove an error in it.
- Single integrated judiciary — one pyramid of courts serving both the Union and the States, applying one body of law, with one final court at its apex.
- Special leave to appeal — the Court’s discretionary power to allow an appeal from any court or tribunal in India, used in exceptional circumstances.
- Ultra vires — ‘beyond the powers’; said of a law or order made outside the authority of the body that made it, which is therefore void.
- Writ — a written order issued by a court directing a person or authority to do a particular act or to refrain from doing one.
5.9 Points to Ponder
The number of judges in the Supreme Court can be changed by an ordinary law, while the removal of a single judge needs an extraordinary majority in both Houses. Is a court protected if its size is not?
A judge retires at sixty-five and is barred from practising afterwards, but may still be appointed to head a commission or a tribunal by the government. Does the bar do the work it was meant to do?
Advisory jurisdiction lets a government ask the Court whether a step is constitutional before taking it. Why might a court prefer to answer such a question only after somebody has actually been affected?
A Supreme Court judgement binds every court in the country as a precedent. What does that gain a citizen, and what does it cost when the judgement turns out to have been wrong?
A complaint written on a postcard has been accepted as a petition. If reaching the highest court is made this easy, how should the Court decide which of the thousands of such letters deserve its time?
Almost every safeguard in this chapter protects the judge rather than the person bringing the case. What would a list of safeguards look like if it were written from the litigant’s side instead?
5.10 Objective Questions
Apart from the Chief Justice of India, the Supreme Court at present consists of not more than
- twenty-five judges
- thirty judges
- thirty-three judges
- thirty-four judges [1 mark]
The minimum number of judges who must hear a case involving a substantial question of law as to the interpretation of the Constitution is
- three
- five
- seven
- nine [1 mark]
A person has been appointed to a public office without having the qualification the law requires for it. The writ that questions the authority by which the office is held is __________. [1 mark]
Match the writ in Column A with what it does in Column B.
| Column A | Column B |
|---|---|
| a. Habeas corpus | i. Orders a lower court to stop proceedings in a case beyond its jurisdiction |
| b. Mandamus | ii. Quashes an order a lower court has already passed |
| c. Prohibition | iii. Requires a detained person to be produced before the court |
| d. Certiorari | iv. Commands a public authority to perform a duty it has not performed |
[1 mark]
Assertion (A): The salaries and allowances of the judges of the Supreme Court are charged on the Consolidated Fund of India. Reason (R): Parliament cannot use its annual control over expenditure as a lever against the Court.
- Both A and R are true, and R is the correct explanation of A
- Both A and R are true, but R is not the correct explanation of A
- A is true, but R is false
- A is false, but R is true [1 mark]
State whether the following statement is true or false: the opinion given by the Supreme Court in the exercise of its advisory jurisdiction is binding on the Government of India. [1 mark]
Which of the following disputes falls within the exclusive original jurisdiction of the Supreme Court?
- A dispute between two private companies over a contract
- A dispute between the Government of India and a State
- An appeal against a death sentence confirmed by a High Court
- A dispute over an agreement entered into before the Constitution came into force and still in operation [1 mark]
Assertion (A): A retired Judge of the Supreme Court may not plead or act before any court in India. Reason (R): A judge on the bench should have no future employer to please and should not later appear before former colleagues.
- Both A and R are true, and R is the correct explanation of A
- Both A and R are true, but R is not the correct explanation of A
- A is true, but R is false
- A is false, but R is true [1 mark]
5.11 Check Your Concepts
What is meant by ‘jurisdiction’? Name the four kinds of jurisdiction exercised by the Supreme Court. [2 marks]
State the three qualifications, any one of which a citizen of India must satisfy for appointment as a Judge of the Supreme Court. [2 marks]
Differentiate between the writ of prohibition and the writ of certiorari. [3 marks]
Give reasons why the salaries and service conditions of a judge cannot be varied to that judge’s disadvantage after appointment. [3 marks]
Explain the appellate jurisdiction of the Supreme Court in criminal cases, stating the situations in which no certificate of the High Court is required. [4 marks]
What is meant by judicial review? Explain its scope, and state one limitation on the way the power can be used. [5 marks]
Describe the procedure by which a Judge of the Supreme Court may be removed from office, and explain how that procedure protects the independence of the judiciary. [6 marks]
5.12 Show Your Skills
- A State government builds a barrage on a river, and the Union government claims the project trespasses on a subject that belongs to it under the Constitution. Letters are exchanged for two years without result. The State finally decides to go to court, and its law officers must advise it where the case can be filed.
- Under which jurisdiction of the Supreme Court would such a dispute be heard, and what does that jurisdiction mean? [2 marks]
- Can the State file this case in its own High Court instead? Give a reason. [2 marks]
- The Court will not hear a quarrel between two governments unless a particular kind of question is involved. What kind? [1 mark]
- A man is taken into custody by the police on a Monday evening. His family is not told where he is being held, and he is not produced before any magistrate over the next three days. His sister wants a court to act.
- Which writ should she ask for, what does its name mean, and what would the court order? [3 marks]
- Name the two courts that could issue this writ, and state which of them she may approach directly. [2 marks]
- Why does the Constitution treat the right to move the Supreme Court in such a matter as a Fundamental Right rather than as an ordinary legal remedy? [2 marks]
- Study the following description of a diagram. A pyramid is divided into three bands. The narrow band at the top is labelled ‘Supreme Court’, the middle band ‘High Courts’ and the wide band at the base ‘Subordinate Courts’. An arrow running up the left edge is labelled ‘route of appeal’.
- Name the feature of the Indian judicial system that this diagram illustrates, and state two things that feature means. [3 marks]
- A case decided in a subordinate court is carried upward along the arrow. Explain what a higher court is being asked to do at each step. [2 marks]
- State one thing about the working of the courts that this diagram cannot show. [1 mark]