Chapter 6: The Judiciary
On the morning of 28 January 1950, a new court opened for business in New Delhi. It had no building of its own. It borrowed the Chamber of Princes, a circular hall inside Parliament House, and it sat there for the next eight years.
The court was the Supreme Court of India. It had been inaugurated two days after the Constitution came into force, and it replaced two older institutions at once. One was the Federal Court of India, set up under colonial rule. The other sat five thousand miles away — the Judicial Committee of the Privy Council in London, which until then had been the final court of appeal for Indians. Harilal J. Kania became the first Chief Justice of India.
The change of address mattered less than the change of power. Under colonial rule, no Indian court could tell an Indian legislature that a law it had passed was invalid, because there was no supreme written Constitution to measure the law against. From that January morning, there was. A judge in Delhi could now examine an Act passed by an elected Parliament and hold that it violated the Constitution.
That raised a question the Chamber of Princes could not settle in a day, and which every constitutional democracy still argues about. In a country where the people elect the Parliament, why should unelected judges be able to strike down what Parliament has decided?
Diagram
Fig. 6.0-1 Caption: The Supreme Court of India has occupied its building on Tilak Marg, New Delhi, since 1958. Brief: Line drawing of the Supreme Court of India building, front elevation, showing the central dome and the wings on either side; label the central block and the Tilak Marg entrance; no people, no flags, no party symbols.
6.1 The Meaning of the Judiciary
Every state has to do three different things with law. It has to make law, it has to carry law out, and it has to decide what the law means when people disagree.
The third of these belongs to the judiciary — the system of courts and judges that interprets the law, applies it to particular disputes, and enforces the result. The legislature enacts a statute in general terms. The executive administers it. Neither of them decides whether a particular tenant, taxpayer or accused person falls within the words the legislature used.
That deciding is called adjudication: settling a specific dispute by applying an existing rule of law to established facts. Adjudication is what makes a court a court. A minister may resolve a quarrel by negotiation, and a legislature may resolve it by passing a new law. A judge must resolve it by reasoning from a rule that already exists, and must give reasons that others can read and criticise.
This division of the state’s work into three functions, given to three different sets of hands, is the doctrine of the separation of powers. Its purpose is not efficiency; a single authority doing all three would be quicker. Its purpose is to make abuse harder, by ensuring that the body that writes a rule is not the body that finally decides what the rule means.
Diagram
Fig. 6.1-1 Caption: The three organs of government and the distinct task each performs with law. Brief: Three labelled boxes in a triangle — Legislature (makes law), Executive (implements law), Judiciary (interprets and applies law in disputes). Draw two-headed arrows between each pair, labelled ‘checks’. Keep it schematic; no national symbols, no named office-holders.
What Courts Are For
The most basic reason for having courts is that disputes will arise whether or not the state provides a forum for them. If there is no lawful way to settle a quarrel over land, wages or an inheritance, it will be settled by whoever is stronger. A court replaces force with a hearing.
From this ordinary work, four larger functions follow, and each of them matters to the political system rather than only to the parties in the case.
Interpretation. Statutes are written in general language and applied to situations their drafters never imagined. Courts settle what the words mean, and the meaning a court settles on becomes the working rule for everyone.
Dispute resolution. Courts decide civil claims between private parties and criminal charges brought by the state, and their decisions bind. Because they bind, disputes end instead of escalating.
Enforcing the rule of law. The rule of law is the principle that everyone, including the government, is bound by law and answerable to it. This is only real if there is somewhere a citizen can go to complain that an official has acted beyond the law.
Guarding the Constitution. Where a country has a written Constitution that stands above ordinary law, some body must decide whether an ordinary law conflicts with it. In both India and the United States that body is the judiciary, and that power is examined in detail later in this chapter.
The fourth function is the one that turns a court into a political institution. Constitutionalism — the idea that government power is limited by rules the government itself cannot alter at will — is only as strong as the court willing to enforce those limits against the government of the day.
The Reach Of A Court
No court can hear everything. Jurisdiction is the legal authority of a particular court to hear a particular kind of case — defined by subject matter, by territory, and by whether the case is arriving for the first time or on appeal. A court that acts outside its jurisdiction acts without authority, and its order can be set aside.
The word matters for the rest of this chapter. The comparison between the Indian and American Supreme Courts is largely a comparison of jurisdictions: what each court is permitted to hear, and on whose initiative.
The Indian Constitution treats the separation of courts from the administration as a goal to be achieved, not merely as a description of what exists.
Interpretation And Its Limits
It is often said that legislatures make law and judges merely find it. The claim is worth testing, because a great deal of the argument about judicial power rests on it.
Notice that the disagreement is not about facts. Both sides accept what courts do; they differ over whether choosing between meanings counts as making law. That is a question about the concept, and the chapter will return to it when the power to strike down legislation is examined.
6.2 The Independence of the Judiciary
A court is only useful if its decision cannot be arranged in advance. If the party that loses can have the judge removed, transferred or starved of salary, then the hearing was a performance and the real decision was taken elsewhere.
This is why every constitutional democracy builds protections around its judges. The protections are not privileges granted to judges as persons. They are conditions attached to the office, designed to remove the ordinary pressures that might otherwise decide a case.
6.2.1 Independence and Impartiality
Judicial independence means that judges decide cases according to law, free from control or pressure by the executive, the legislature, political parties or private interests. It is a claim about the position a judge occupies.
Impartiality is a claim about the judge’s state of mind in a particular case: approaching it without bias, favour or prejudgment, and applying the same law to a powerful party as to a weak one. A judge may be perfectly independent of the government and still be partial towards a friend.
The two are connected, but neither guarantees the other. Independence is the institutional condition that makes impartiality possible; impartiality is what independence is for. A judiciary that had one without the other would fail litigants in different ways — in the first case by yielding to power, in the second by yielding to preference.
Independence is also not the same as unaccountability. Judges give reasons in open court, their judgments are published and criticised, higher courts correct them, and a judge who misbehaves can be removed. What independence excludes is control over the outcome, not scrutiny of the reasoning.
6.2.2 The Conditions of Judicial Independence
Certain arrangements recur in constitutions that take judicial independence seriously. Taken together, they are the conditions of an independent judiciary. The Indian Constitution provides for each of them.
Appointment On Merit
Judges of the Supreme Court are appointed by the President under Article 124(2). The Constitution fixes qualifications rather than leaving the field open: a person must be a citizen of India and must have been a judge of a High Court for at least five years, or an advocate of a High Court for at least ten years, or, in the opinion of the President, a distinguished jurist.
Who effectively chooses within that pool has changed over time. Through a series of judgments known as the Three Judges Cases, decided in 1981, 1993 and 1998, the Supreme Court read the constitutional requirement of ‘consultation’ as giving the judiciary the decisive voice. The result is the collegium — the Chief Justice of India together with the four senior-most judges of the Supreme Court, whose recommendations on appointments and transfers the executive is expected to accept.
In 2014 Parliament passed the Ninety-ninth Constitutional Amendment, creating a National Judicial Appointments Commission with judicial, executive and lay members. In 2015 the Supreme Court struck it down as unconstitutional, holding that it compromised the independence of the judiciary. The collegium was thereby restored, and the question of who should choose judges remains argued about in Parliament, in the press and among lawyers.
Security Of Tenure
Judges of the Supreme Court hold office until the age of 65; judges of the High Courts, until 62. They cannot be dismissed at the pleasure of the government, as most public servants can.
A judge may be removed only on the ground of proved misbehaviour or incapacity, and only by a procedure deliberately made difficult. Article 124(4) requires an address by each House of Parliament, supported by a majority of the total membership of that House and by not less than two-thirds of the members present and voting, presented to the President in the same session.
Flowchart
FC 6.1 — How A Judge Of The Supreme Court May Be Removed Caption: The removal procedure under Article 124(4), as worked out by the Judges (Inquiry) Act, 1968. Nodes: Motion signed by 100 members of the Lok Sabha or 50 members of the Rajya Sabha → Speaker or Chairman admits the motion (if refused → proceedings end) → three-member inquiry committee examines the charge → committee finds the judge not guilty (→ motion is dropped) or guilty → motion taken up in the House → passed by majority of total membership and two-thirds of those present and voting (if either House fails to pass it → judge remains in office) → both Houses present an address to the President in the same session → President issues an order of removal
No judge of the Supreme Court of India has been removed by this procedure. Whether that shows the safeguard is working or that it is too demanding to use is a fair question, and one the Constitution itself does not answer.
Financial Security
The salaries and allowances of judges are charged on the Consolidated Fund of India — the single account into which the Union government’s revenues flow. Charged expenditure is not put to a vote in Parliament. Members may discuss it; they cannot refuse it.
Under Article 125 a judge’s emoluments cannot be varied to their disadvantage after appointment. The single exception is a financial emergency proclaimed under Article 360, during which the salaries of judges of the Supreme Court and the High Courts may be reduced.
Protection From Political Attack
Article 121 restricts what Parliament may say about a sitting judge. The Supreme Court and the High Courts are also courts of record, and Article 129 gives the Supreme Court the power to punish for contempt of court — conduct that obstructs the administration of justice or defies a court’s order.
Restrictions After Retirement
Article 124(7) bars a retired judge of the Supreme Court from pleading or acting in any court or before any authority in India. Article 220 places a narrower bar on retired High Court judges, who may not practise in the court where they served but may appear in the Supreme Court and in other High Courts.
The reasoning is about incentives rather than about the judges themselves. A judge whose future earnings depend on those who appear before her today has a reason, however faint, to decide today’s case with tomorrow in mind. Removing the prospect removes the reason.
Freedom From Executive Assignment And Administrative Control
The judiciary controls its own administration — the listing of cases, the framing of court rules, the supervision of subordinate courts by the High Court of the state. An organ that had to ask the executive for permission to arrange its own work would be independent only in name.
Together these devices answer a single question: what would a government need in order to bend a court, and how can each of those levers be taken away? None of them can make a judge honest. What they do is remove the excuses of a judge who is not.
6.3 The Supreme Court of India
India has a single integrated judicial system: one pyramid of courts, applying both Union and State law, with the Supreme Court at its apex. Below it stand the High Courts, one for each State or group of States, and below them the subordinate courts of the districts.
This matters more than it may appear. A federal country could instead run two parallel sets of courts, one for national law and one for state law. India does not. A case about a State law and a case about a Union law travel up the same ladder and end before the same court, which is one reason the law is applied consistently across the country.
Diagram
Fig. 6.3-1 Caption: The integrated judicial system, with a single hierarchy for both Union and State law. Brief: A three-tier pyramid. Top tier labelled ‘Supreme Court of India’; middle tier ‘High Courts (States)’; base tier ‘Subordinate courts (district and below)’. An upward arrow along the left marked ‘appeals’; a downward arrow along the right marked ‘supervision’. No map, no emblems.
6.3.1 Composition — Strength and Tenure
When the Court opened, it consisted of the Chief Justice of India and seven other judges. The Constitution did not freeze that figure; it authorised Parliament to prescribe a larger number as the workload grew. Parliament has done so several times, and the sanctioned strength is now 34 judges — the Chief Justice of India and 33 others.
Judges are appointed by the President under Article 124(2) and hold office until the age of 65. The Court does not sit as a single body of 34. It sits in benches, most often of two or three judges; questions involving a substantial point of constitutional interpretation are heard by a Constitution Bench of at least five.
The large strength therefore buys something specific: several benches can sit at once, so a court that hears tens of thousands of matters a year is not paralysed by its own docket. The cost is that different benches may take different views, and reconciling them becomes work in itself.
6.3.2 Original Jurisdiction
Original jurisdiction is the power to hear a case at first instance — the dispute begins in that court rather than arriving on appeal. The Supreme Court of India has original jurisdiction of two quite different kinds.
Federal Disputes Under Article 131
Article 131 gives the Court an exclusive original jurisdiction over disputes between the units of the federation. It covers three situations:
a. between the Government of India and one or more States;
b. between the Government of India and any State or States on one side and one or more other States on the other;
c. between two or more States.The dispute must involve a question on which the existence or extent of a legal right depends. A political disagreement between a State and the Union is not enough; there must be a legal right at stake.
This jurisdiction is exclusive, meaning no other court in India — not even a High Court — may hear such a case. The reason is structural. In a federation, quarrels between the Union and the States are inevitable, and if either side could be judged by a court belonging to the other, the loser would never accept the result. A single neutral forum standing above both is the alternative to negotiation by pressure.
Writ Jurisdiction Under Article 32
The second kind of original jurisdiction belongs not to governments but to citizens. Article 32 gives every person the right to move the Supreme Court directly for the enforcement of the fundamental rights, and empowers the Court to issue writs — formal written orders commanding a public authority to do, or to stop doing, something. Five are named:
a. *habeas corpus*, 'you may have the body' — requiring a detained person to be produced before the court and released if the detention is unlawful;
b. *mandamus*, 'we command' — directing a public authority to perform a public duty it has refused to perform;
c. *prohibition* — directing a lower court or tribunal to stop proceeding in a matter beyond its jurisdiction;
d. *certiorari* — quashing an order already passed by a lower court or tribunal that acted without jurisdiction or in excess of it;
e. *quo warranto*, 'by what authority' — calling on a person holding a public office to show the legal authority for holding it.The remarkable feature is the word ‘directly’. A person who believes a fundamental right has been violated need not climb the ladder from the district court upwards. The right to approach the Court is itself a fundamental right, listed among the rights it protects. During the framing, this was argued to be the provision that made the rest of them real.
Ambedkar’s point is that a right and a remedy are not two things but one. A guarantee that cannot be enforced is a promise, and the Constitution deliberately turned this particular promise into an enforceable claim.
The extract has limits worth noticing. It records how the drafters hoped the provision would work, at a moment when they were persuading an assembly to adopt it. It cannot tell us how far the hope was fulfilled — whether people who most need the Court can reach it, what a petition costs, or how long one waits. Those are questions about practice, and a speech made before the Constitution came into force cannot answer them.
Note also that Article 226 gives the High Courts a wider writ power, for fundamental rights and for other legal rights too. So the Supreme Court’s writ jurisdiction is original but not exclusive.
6.3.3 Appellate Jurisdiction
Appellate jurisdiction is the power to review the decision of a lower court and confirm, alter or set it aside. This is the bulk of what the Supreme Court actually does, and it flows through four provisions.
Constitutional appeals — Article 132. An appeal lies from any judgment, decree or final order of a High Court if that High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.
Civil appeals — Article 133. An appeal lies in a civil proceeding if the High Court certifies both that the case involves a substantial question of law of general importance, and that in its opinion the question needs to be decided by the Supreme Court.
Criminal appeals — Article 134. An appeal lies as of right where a High Court has reversed an acquittal and sentenced the accused to death, or has withdrawn a case from a subordinate court, convicted the accused and sentenced him to death. In other criminal matters the High Court may certify the case as fit for appeal.
Special leave to appeal — Article 136. The Court may, in its discretion, grant special leave to appeal from any judgment, decree, sentence or order passed by any court or tribunal in India, in any cause or matter.
The first three are narrow gates guarded by the High Court’s certificate. Article 136 is different in kind. It is not confined to a category of case, it does not depend on any certificate, and it is not a right of the litigant at all — the Court grants or refuses leave as it thinks fit.
That discretion is what makes Article 136 the widest of the Court’s appellate powers, and also the most argued about. It allows the Court to reach an injustice that no other provision covers. It equally allows tens of thousands of petitions to be filed each year in the hope of persuading the Court to look, which consumes the time of the judges who must sift them.
Because Article 141 makes the law declared by the Supreme Court binding on all courts in India, an appellate decision does not settle one case alone. It settles the rule that every court below must apply.
6.3.4 Advisory Jurisdiction
Under Article 143 the President may refer to the Supreme Court any question of law or fact that has arisen, or is likely to arise, and that is of such a nature and public importance that it is expedient to obtain the Court’s opinion. The Court may, after such hearing as it thinks fit, report its opinion to the President.
Advisory jurisdiction is the power to give an opinion on a question referred to a court, rather than to decide a dispute between parties. Two words in the Article carry the weight. The Court may report — it is not obliged to answer every reference. And what it gives is an opinion, not a judgment: it does not bind, because there are no parties, no dispute and nothing to enforce.
Why keep a power that produces no binding result? Because a government sometimes needs to know whether a course of action is constitutional before it takes it, rather than years afterwards when a citizen sues. An advisory opinion allows a constitutional doubt to be resolved without anyone first being harmed by the answer.
The objection is equally real. A court’s reasoning is normally tested by adversaries arguing opposite sides of a live dispute. A reference has no such contest built into it, and a court asked abstract questions by the executive risks being drawn into a controversy it would be wiser to judge later.
6.4 The Supreme Court of the United States
The United States built its judiciary on a different plan. Instead of one integrated hierarchy, it has a dual court system: a federal set of courts created by the national Constitution and statutes, and fifty separate state court systems running alongside them.
Most litigation in the United States — crime, family law, contracts, property — begins and ends in the state courts. The federal courts handle cases arising under federal law and the Constitution, disputes between citizens of different states, and a few other defined categories. Only where a case turns on a question of federal law can it cross from a state system into the federal one.
Diagram
Fig. 6.4-1 Caption: The dual court system of the United States, with two parallel hierarchies meeting only at the top. Brief: Two side-by-side ladders. Left ladder: US District Courts → US Courts of Appeals → US Supreme Court. Right ladder: State trial courts → State appellate courts → State supreme courts, with an arrow from State supreme courts up to the US Supreme Court labelled ‘only on a federal question’. Keep schematic.
6.4.1 Composition — Strength and Tenure
Article III, Section 1 of the United States Constitution vests the judicial power in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish. It requires the Court to exist; it does not say how many judges it shall have.
That number has always been fixed by ordinary statute. The Judiciary Act of 1789 provided for six justices, and the figure moved up and down during the nineteenth century. Since 1869 it has stood at nine: the Chief Justice of the United States and eight Associate Justices. All nine hear every case the Court decides, and the Chief Justice, who presides, has one vote like each of the others.
Justices are nominated by the President and take office only if confirmed by a majority vote in the Senate. The Constitution then gives them a tenure unusual among the world’s high courts. Article III provides that judges shall hold their offices during good behaviour, which has been understood to mean for life — there is no retirement age. A justice leaves by resignation, retirement or death, or by impeachment.
Impeachment — a formal charge of wrongdoing brought against a public officer by the legislature — is the only involuntary route out. The House of Representatives brings the charge and the Senate tries it. One justice has been impeached, in 1804, and the Senate acquitted him. No justice of the United States Supreme Court has ever been removed from office.
Article III also protects the justices financially, by providing that their compensation shall not be diminished while they remain in office.
6.4.2 Original Jurisdiction
Article III, Section 2 sets out the cases in which the Supreme Court sits as a court of first instance. There are two categories only:
a. cases affecting ambassadors, other public ministers and consuls;
b. cases in which a State is a party.In practice the second category does nearly all the work, and most of it concerns disputes between one State and another — boundary lines, and the sharing of the water of rivers that cross state borders. Such cases are rare. The Court may decide only a handful in a decade.
The narrowness is deliberate. The framers gave the Court original jurisdiction over exactly those disputes that no state court could plausibly settle: quarrels involving foreign envoys, and quarrels in which a State itself was one of the parties. Everything else was left to arrive on appeal.
Notice what is absent. There is no American equivalent of Article 32. An American citizen whose constitutional rights are violated does not begin in the Supreme Court; the case begins in a district court or a state court and may, years later, reach the top.
6.4.3 Appellate Jurisdiction
Everything else the Court does is appellate. Article III provides that in all the other cases mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as Congress shall make.
Those last words are important. The scope of the appellate jurisdiction is not settled by the Constitution alone; Congress defines it by statute, beginning with the Judiciary Act of 1789. Cases reach the Court from two directions:
from the federal Courts of Appeals, which sit in circuits and hear appeals from the district courts; and
from the highest court of a State, but only where a federal question is involved — that is, where the meaning of the United States Constitution, a federal law or a treaty is genuinely in dispute.
Almost all of this jurisdiction is discretionary. A party asks the Court for a writ of certiorari, an order calling up the record of a case from a lower court for review. Granting it is a choice, not a duty, and by the Court’s own practice four of the nine justices must agree before a case is taken. Of the several thousand petitions filed each year, only a small fraction succeed, and the Court decides fewer than a hundred cases with full argument.
The consequence is a court that chooses its own agenda. It takes cases where the lower courts have divided on the meaning of federal law, or where a constitutional question of national importance is squarely raised. It leaves the correction of ordinary errors to the courts below.
One further limit shapes everything above. Article III extends the judicial power to ‘cases’ and ‘controversies’, which has been read to mean that American courts decide only real disputes between opposing parties with something at stake. They do not answer hypothetical questions, and they give no advisory opinions to the President or to Congress.
6.5 Judicial Review
6.5.1 The Meaning of Judicial Review
Judicial review is the power of a court to examine a law, or an act of the executive, and to declare it invalid if it conflicts with the Constitution or exceeds the authority of the body that made it.
The idea rests on a simple ranking. If the Constitution is superior to ordinary law, then an ordinary law that contradicts it cannot stand. Someone must decide when that contradiction has occurred, and in both India and the United States that decision belongs to the courts.
An act made beyond the powers granted to the authority is said to be ultra vires — Latin for ‘beyond the powers’. Where a law is held unconstitutional, it is ordinarily treated as void ab initio, that is, from the very beginning, rather than merely from the date of the judgment.
Judicial review is therefore not one more appeal. In an appeal the court asks whether the law was correctly applied. In judicial review it asks whether the law itself was validly made. The first question is about the case; the second is about the limits of power.
6.5.2 The Principles and Maxims of Judicial Review
Courts do not exercise this power at large. A set of working principles has grown up around it, and they matter as much as the power itself, because they mark where review stops.
Review is not automatic. No court scans the statute book looking for defects. A law remains valid and enforceable until someone with a stake in it brings a challenge before a court.
The Constitution is supreme. Every organ — legislature, executive and administration — draws its authority from the Constitution, and nothing done outside that authority can be valid.
Grounds must be shown. A court cannot strike down a law because it thinks the policy unwise. It must identify the constitutional provision the law offends and explain how.
Decisions are binding, not advisory. A law struck down is inoperative; a court’s holding is not a recommendation the government may consider and set aside.
The doctrine of severability. Where only part of a statute is unconstitutional, the court removes that part and lets the rest stand, provided the remainder can work independently. The doctrine of severability protects valid legislation from being destroyed by one bad clause.
The doctrine of eclipse. Applied chiefly to laws made before the Constitution, the doctrine of eclipse holds that a law inconsistent with fundamental rights is not wiped off the statute book but rendered dormant. If the inconsistency is later removed, the law revives.
Natural justice. Review enforces two ancient requirements of fair procedure — audi alteram partem, hear the other side, and nemo judex in causa sua, no one may judge his own cause. Together these make up natural justice, the minimum standards of fair procedure that any authority deciding a person’s rights must follow.
Restraint in political questions. Courts avoid matters that are questions of policy rather than of law — how public money should be spent, or what a government’s foreign policy should be — unless a definite constitutional or legal issue arises.
A further point is often stated as though it were a rule, and it is not. Judgments striking down a law ordinarily operate from the beginning, since an invalid law was never valid. In exceptional cases the Supreme Court of India has applied prospective overruling, holding that its decision will affect the future only and will not unsettle transactions already completed. That is a discretionary device used sparingly, not the normal effect of a judgment.
6.5.3 Judicial Review in the United States
The United States Constitution nowhere mentions judicial review. Article III vests the judicial power in the courts and extends it to all cases arising under the Constitution, but it does not say in terms that a court may set aside an Act of Congress.
The power was established by the Court itself, in a case decided in 1803 that arose from a dispute over a minor government appointment.
The reasoning has an elegance worth noticing. Marshall gave the government of the day the practical result it wanted, and took for the Court a power far larger than the one he declined to use. Because nobody had lost anything they were fighting for, there was nothing to resist.
From that beginning, American judicial review extends today to Acts of Congress, to orders and policies of the President and federal agencies, to state laws that conflict with federal law or the Constitution, and to the decisions of lower courts on constitutional questions.
American review is conducted under the doctrine of due process of law, drawn from the words of the Fifth and Fourteenth Amendments, which forbid depriving any person of life, liberty or property without due process of law. It has two aspects. Procedural due process asks whether the procedure followed was fair. Substantive due process asks a harder question: whether the content of the law is itself reasonable and just. Between them they allow an American court to examine not only how a law is applied but what it says.
6.5.4 Judicial Review in India
The Indian Constitution does not use the expression ‘judicial review’ either. Unlike the American, however, it does not leave the power to be inferred from silence: several provisions assume and provide for it.
The clearest is Article 13, which makes the fundamental rights a limit on the legislature’s power rather than a promise about how it will behave.
Alongside Article 13 stand Article 32, which lets a citizen approach the Supreme Court directly to enforce those rights, Article 226, which gives the High Courts their writ jurisdiction, and Article 136, which allows the Supreme Court to reach almost any decision of any court or tribunal. Together these provide a firmer textual foundation for review than the American Constitution offers.
Procedure Established By Law
Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. The phrase was chosen deliberately in preference to the American ‘due process of law’, and it means three things: the legislature must be competent to make the law, the law must be duly enacted, and the procedure it lays down must be followed.
In A. K. Gopalan v. State of Madras (1950), the Supreme Court read the phrase strictly. So long as a valid law existed and its procedure was followed, Article 21 was satisfied; the Court would not ask whether the procedure was reasonable or fair. The reading gave the legislature very wide latitude, including over preventive detention.
That position was overturned in Maneka Gandhi v. Union of India (1978). The Court held that a procedure depriving a person of liberty must not be arbitrary, unfair or unreasonable, and that Article 21 has to be read together with Article 14, which guarantees equality before the law, and Article 19, which protects the fundamental freedoms. A law affecting life or liberty must therefore be just, fair and reasonable.
The practical effect was to bring Indian constitutional law close to the American idea of substantive due process, although the Constitution still does not use that phrase. The words on the page had not changed; the reading had.
Reviewing Amendments: The Basic Structure
Ordinary laws are one thing. What of an amendment to the Constitution itself, passed by Parliament under Article 368? If the Constitution is what limits Parliament, can Parliament remove the limit?
The basic structure doctrine — the principle that certain essential features of the Constitution cannot be destroyed even by amendment — is the most consequential ruling in Indian constitutional history, and the most contested. Its defenders argue that without it, a party with a large enough majority could amend democracy out of existence while obeying every procedural rule. Its critics reply that the Court awarded itself the power to decide which parts of the Constitution the elected representatives of the people may not touch, and that no provision of the Constitution says so.
Because of it, the scope of judicial review in India is wider than in the United States. Indian courts review not only laws, ordinances, executive orders, administrative decisions and subordinate legislation, but constitutional amendments as well.
6.6 Comparing the Two Supreme Courts
The Supreme Court of India and the Supreme Court of the United States do the same constitutional work. Each stands at the head of a judiciary, each is the final interpreter of a written Constitution, and each may declare the acts of the other organs invalid.
They arrived at that position by different routes, and the differences between them are not accidents of drafting. Each reflects a judgment about what an apex court is for.
Two Judiciaries, Two Shapes
The first difference is structural, and everything else grows out of it. India has one integrated judicial system: the same courts apply Union and State law, and one ladder of appeal runs from the district court to the Supreme Court. The United States has two parallel systems, federal and state, which meet only at the top and only when a federal question is raised.
An integrated system produces uniformity at the cost of volume. Every kind of dispute in the country can, in principle, end up before the same court. A dual system keeps most litigation permanently out of the apex court’s reach, but allows fifty state supreme courts to develop their own law in their own way.
Composition And Tenure
The Indian Court is large and its judges retire; the American Court is small and its justices do not. Each arrangement solves one problem and creates another.
A court of thirty-four can sit in many benches at once and dispose of a great volume of work, but it does not speak with a single voice, and benches must sometimes be enlarged to settle what the Court itself has said. A court of nine hears every case as one body, so every ruling is the considered view of the whole Court, but it can hear only a fraction of what is brought to it.
Retirement at a fixed age brings regular turnover and keeps appointments frequent and comparatively low-stakes. Life tenure removes even the distant temptation of a post-retirement career, but it makes each vacancy rare and correspondingly political.
Access And Jurisdiction
The sharpest practical difference is how an ordinary citizen reaches the court.
In India, Article 32 makes the right to move the Supreme Court for the enforcement of fundamental rights itself a fundamental right. A person may begin at the top. In the United States there is no such route; a constitutional claim starts in a trial court and arrives at the Supreme Court, if ever, on appeal and at the Court’s discretion.
The two original jurisdictions, by contrast, are close cousins. Both are designed for disputes between the units of a federation, because such quarrels need a forum belonging to neither side. Both are used rarely.
The appellate jurisdictions diverge again. The Indian Court’s power under Article 136 is discretionary but unlimited in subject matter, reaching any order of any court or tribunal in the country. The American Court’s appellate jurisdiction is defined by Congress, which may make exceptions to it — a legislative check the Indian Parliament does not possess.
Advisory jurisdiction exists only in India. Because Article III confines American courts to real cases and controversies, the President of the United States cannot ask the Court what the Constitution means before acting; the President of India can, under Article 143.
Which Court Is The Stronger?
Comparisons of this kind usually end in a verdict, and the question is worth putting carefully before one is reached.
There is a further consideration that neither table records. The American Court’s authority rests on a doctrine it created for itself and has held for more than two centuries of political contestation. The Indian Court’s authority rests on express provisions of a written Constitution. Textual authority is more secure against argument; long practice is more secure against amendment. Which matters more depends on what a court is likely to be challenged by.
Neither design is simply better. A court that hears little and decides slowly protects the depth of its reasoning; a court that hears much and decides quickly protects the litigant who would otherwise have nowhere to go. India and the United States have each accepted the cost that comes with the choice they made.
6.7 Summary
The judiciary is the system of courts that interprets law, applies it to particular disputes and enforces the result. Adjudication — settling a dispute by applying an existing rule to established facts, and giving reasons — is what distinguishes a court from the other two organs.
Courts perform four functions of political importance: interpreting law, resolving disputes bindingly, enforcing the rule of law against the government itself, and guarding the Constitution. Constitutionalism is only as strong as the court willing to enforce its limits.
Jurisdiction is a court’s legal authority to hear a particular kind of case. The comparison between the Indian and American Supreme Courts is largely a comparison of jurisdictions.
Judicial independence is a condition of the office: freedom from control by the executive, the legislature, parties or private interests. Impartiality is a quality of mind in a particular case. Neither guarantees the other, and independence does not mean freedom from scrutiny.
India secures independence through appointment on prescribed qualifications under Article 124(2) with the collegium recommending; security of tenure to 65, with removal only by the special-majority procedure of Article 124(4); salaries charged on the Consolidated Fund and protected under Article 125; the restriction on parliamentary discussion in Article 121 and contempt powers under Article 129; bars on post-retirement practice under Articles 124(7) and 220; and administrative self-management.
India has a single integrated judicial system — one ladder of appeal for Union and State law alike, with the Supreme Court at its apex, High Courts below, and subordinate courts beneath them.
The Supreme Court of India has a sanctioned strength of 34 judges, fixed by Parliament under Article 124(1), and sits in benches. Judges hold office until 65.
Its original jurisdiction has two heads: exclusive federal disputes under Article 131, and enforcement of fundamental rights under Article 32, which makes direct access to the Court itself a fundamental right and empowers it to issue five writs.
Its appellate jurisdiction runs through Articles 132 (constitutional), 133 (civil) and 134 (criminal), each gated by a High Court certificate, and Article 136, a discretionary power to grant special leave from any court or tribunal in India.
Its advisory jurisdiction under Article 143 allows the President to refer a question of public importance. The Court may report an opinion, and the opinion does not bind.
The United States has a dual court system: parallel federal and state hierarchies meeting only at the Supreme Court, and only on a federal question.
The Supreme Court of the United States has nine justices, a number fixed by Congress and unchanged since 1869. All nine hear every argued case. They hold office during good behaviour, understood as life tenure, and can be removed only by impeachment and conviction — which has never happened.
Its original jurisdiction under Article III covers only cases affecting ambassadors and other envoys, and cases in which a state is a party. Its appellate jurisdiction, defined by Congress, reaches the federal Courts of Appeals and state supreme courts on federal questions, and is exercised almost entirely at the Court’s discretion through the writ of certiorari. It has no advisory jurisdiction.
Judicial review is the power to declare a law or executive act invalid for conflicting with the Constitution. An act beyond the powers granted is ultra vires, and an unconstitutional law is ordinarily void ab initio.
Its maxims mark where the power stops: review is not automatic; the Constitution is supreme; grounds must be shown; decisions bind rather than advise; severability saves the valid parts of a statute; eclipse leaves inconsistent pre-Constitution laws dormant rather than dead; natural justice must be observed; and political questions are generally avoided. Prospective overruling is an exceptional device, not the normal effect of a judgment.
In the United States judicial review is nowhere written down. It was established by the Court in Marbury v. Madison (1803) and operates through the doctrine of due process of law, which has both a procedural and a substantive aspect.
In India the power is assumed by the text — Article 13 above all, with Articles 32, 226 and 136 supplying the routes to court. Article 21’s ‘procedure established by law’ was read narrowly in A. K. Gopalan (1950) and broadly in Maneka Gandhi (1978), which required procedure to be just, fair and reasonable.
Kesavananda Bharati v. State of Kerala (1973) held that Parliament may amend any part of the Constitution but may not damage its basic structure. Indian judicial review therefore reaches constitutional amendments, which American judicial review does not.
The Arguments In One Place
The central claim of the chapter is that an unelected judiciary with the power to strike down laws is not a defect in a democracy but a condition of one. A constitution that limits government is meaningless unless some body outside the government can enforce the limit, and that body must be insulated from the majority whose acts it may have to invalidate.
The strongest position against it is equally serious. Judges are appointed, not elected, and cannot be voted out. When they read an open-ended phrase — ‘reasonable’, ‘fair’, ‘basic structure’ — they are making a contested choice, and calling it interpretation does not make it less of a choice.
Each side accepts most of what the other says. The disagreement is about where the greater danger lies: in a majority that can rewrite the rules that bind it, or in a small appointed body that decides what those rules mean. This chapter has set out how India and the United States each answered that question, not which answer is right.
6.8 Key Terms
Adjudication — settling a specific dispute by applying an existing rule of law to established facts, and giving reasons for the decision.
Advisory jurisdiction — the power of a court to give an opinion on a question referred to it, rather than to decide a dispute between parties; in India, on a Presidential reference under Article 143.
Appellate jurisdiction — the power of a higher court to review the decision of a lower court and confirm, alter or set it aside.
Basic structure doctrine — the principle, laid down in Kesavananda Bharati (1973), that certain essential features of the Constitution cannot be damaged or destroyed even by a constitutional amendment.
Collegium — the Chief Justice of India and the four senior-most judges of the Supreme Court, whose recommendations govern the appointment and transfer of judges.
Consolidated Fund of India — the account into which the Union government’s revenues flow; expenditure charged on it, including judges’ salaries, is not put to a vote in Parliament.
Constitutionalism — the idea that the power of government is limited by rules which the government itself cannot alter at will.
Contempt of court — conduct that obstructs the administration of justice or defies a court’s order, and which a court of record may punish.
Doctrine of eclipse — the principle that a pre-Constitution law inconsistent with the fundamental rights becomes dormant rather than void, and revives if the inconsistency is removed.
Doctrine of severability — the principle that where only part of a statute is unconstitutional, that part alone is struck down and the workable remainder stays in force.
Dual court system — the American arrangement of parallel federal and state court hierarchies, meeting only at the Supreme Court and only on a federal question.
Due process of law — the American standard, drawn from the Fifth and Fourteenth Amendments, requiring that both the procedure of a law (procedural) and its content (substantive) be fair and reasonable.
Impartiality — deciding a case without bias, favour or prejudgment, applying the same law to a powerful party as to a weak one.
Impeachment — a formal charge of wrongdoing brought against a public officer by the legislature, and the trial that follows it.
Judicial independence — the freedom of judges to decide cases according to law, without control or pressure from the executive, the legislature, political parties or private interests.
Judicial review — the power of a court to examine a law or an executive act and declare it invalid if it conflicts with the Constitution or exceeds the authority of the body that made it.
Judiciary — the system of courts and judges that interprets the law, applies it to particular disputes, and enforces the result.
Jurisdiction — the legal authority of a particular court to hear a particular kind of case.
Natural justice — the minimum standards of fair procedure: audi alteram partem, that a person must be heard, and nemo judex in causa sua, that no one may judge his own cause.
Original jurisdiction — the power of a court to hear a case at first instance, rather than on appeal from a lower court.
Procedure established by law — the standard in Article 21, requiring a competent legislature, a duly enacted law, and adherence to the procedure that law lays down; read since Maneka Gandhi (1978) to require that the procedure also be just, fair and reasonable.
Rule of law — the principle that everyone, including the government, is bound by law and answerable to it.
Separation of powers — the division of the state’s work of making, executing and interpreting law among three distinct organs.
Single integrated judicial system — the Indian arrangement of one hierarchy of courts applying both Union and State law, with one ladder of appeal to the Supreme Court.
Writ — a formal written order of a court commanding a specified act or forbidding one; in India, habeas corpus, mandamus, prohibition, certiorari and quo warranto.
Writ of certiorari — in American practice, the discretionary order by which the Supreme Court calls up the record of a case from a lower court for review.
6.9 Points to Ponder
If a court must wait to be approached before it can review a law, what happens to an unconstitutional law that nobody has the money, time or standing to challenge?
Judges are protected from removal so that they can decide against the government. Does the same protection also shield a judge who decides badly? Can a system have one without the other?
Article 32 lets a citizen begin at the top of the judicial ladder. Does a right of direct access to the highest court make rights more secure, or does it simply move the queue?
An advisory opinion binds nobody. In what sense, then, is it worth asking for — and could a court’s willingness to advise ever compromise its ability to judge the same question later?
If the basic structure of a constitution cannot be amended, then some part of the document is beyond the reach of the people who live under it. Is that a limit on democracy, or a condition of it?
Both Supreme Courts read the same kinds of open-ended words — ‘reasonable’, ‘fair’, ‘due’. When a court settles what such a word means, is it discovering the Constitution’s meaning or supplying one?
6.10 Objective Questions
- The sanctioned strength of the Supreme Court of India is:
- 8 judges, including the Chief Justice of India
- 26 judges, including the Chief Justice of India
- 34 judges, including the Chief Justice of India
- fixed by the Constitution and unalterable [1 mark]
- The original jurisdiction of the Supreme Court of India in federal disputes is conferred by:
- Article 13
- Article 131
- Article 136
- Article 143 [1 mark]
- A judge of the Supreme Court of the United States holds office:
- for a fixed term of nine years
- until the age of 70
- during good behaviour, with no retirement age
- at the pleasure of the President [1 mark]
- The doctrine under which only the unconstitutional part of a statute is struck down, leaving the rest in force, is the doctrine of:
- eclipse
- severability
- ultra vires
- prospective overruling [1 mark]
- Match the following: [1 mark]
| Column A | Column B |
|---|---|
| a. Article 32 | i. advisory jurisdiction of the Supreme Court |
| b. Article 136 | ii. laws inconsistent with fundamental rights are void |
| c. Article 143 | iii. special leave to appeal |
| d. Article 13 | iv. right to move the Supreme Court to enforce fundamental rights |
Fill in the blank: The writ of ____________ is issued to secure the production before a court of a person who has been detained. [1 mark]
State whether true or false: The Supreme Court of the United States may give an advisory opinion to the President on a question of constitutional law. [1 mark]
Assertion (A): The salaries of judges of the Supreme Court of India are charged on the Consolidated Fund of India. Reason (R): Expenditure charged on the Consolidated Fund is not submitted to the vote of Parliament. Choose:
- 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]
Assertion (A): Judicial review in the United States rests on an express provision of the Constitution. Reason (R): The power was asserted by the Supreme Court in Marbury v. Madison (1803). Choose:
- 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]
Assertion (A): An Indian citizen whose fundamental right has been violated may approach the Supreme Court directly. Reason (R): Article 32 makes the right to move the Supreme Court for the enforcement of fundamental rights itself a fundamental right. Choose:
- 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]
6.11 Check Your Concepts
Define judicial review. [2 marks]
State any two grounds on which a judge of the Supreme Court of India may be removed, and name the Article that provides for removal. [2 marks]
Differentiate between original jurisdiction and appellate jurisdiction. [3 marks]
Distinguish between judicial independence and judicial impartiality, and explain why a judiciary may possess one without the other. [3 marks]
Explain the doctrine of eclipse with an example of the kind of law to which it applies. [4 marks]
Why does the Constitution make the removal of a judge deliberately difficult? Evaluate the claim that a procedure never successfully used is a procedure that is too demanding. [4 marks]
Describe the advisory jurisdiction of the Supreme Court of India. Why is the opinion given under it not binding, and what use is such an opinion? [4 marks]
Discuss the conditions that secure the independence of the judiciary in India, referring to appointment, tenure, salaries and post-retirement practice. [6 marks]
Compare the composition and tenure of the Supreme Court of India with that of the Supreme Court of the United States, and explain what each arrangement gains and what it costs. [6 marks]
Explain the maxims of judicial review. How do they answer the objection that unelected judges should not be able to set aside the decisions of an elected legislature? [6 marks]
6.12 Source & Passage-Based Questions
A State government and the Union government disagree over the sharing of the waters of a river that flows through three States. Negotiations between the chief ministers and the Union minister concerned break down. One of the States wishes to take the matter to court, and files a petition in its own High Court. The High Court declines to entertain it.
- Which jurisdiction of the Supreme Court of India covers a dispute of this kind, and under which Article? [2 marks]
- Explain why the High Court could not hear the matter. [2 marks]
- Why does a federal constitution provide a forum of this kind rather than leaving such disputes to negotiation? [2 marks]
Read the extract and answer the questions that follow.
‘It is emphatically the province and duty of the judicial department to say what the law is.’
a. Identify the case and the judge associated with this statement, and state the year of the decision. [2 marks]
b. Explain how this reasoning establishes the power of judicial review in a constitution that does not mention it. [3 marks]
c. State one thing this single sentence cannot tell us about how judicial review actually developed in the United States. [2 marks]A person is detained by the police under a law that lays down a clear procedure, which the officers have followed exactly. The detained person argues before a court that the procedure itself is unfair, because it allows detention for a long period without informing the person of the grounds.
- Which Article of the Constitution is at issue, and what standard does it lay down? [2 marks]
- How would the Supreme Court’s reading of that Article in 1950 have answered this argument, and how did the reading adopted in 1978 differ? [4 marks]
- What does this change show about the relationship between the words of a constitutional provision and its meaning? [2 marks]
A cartoon shows a large stone arch labelled ‘The Constitution’. Beneath it, a figure carrying a bundle of papers marked ‘New Law’ is trying to walk through a doorway that is plainly too narrow for the bundle. A robed figure stands beside the doorway, holding a measuring tape.
- What power of the judiciary is the cartoonist depicting, and what does the measuring tape stand for? [2 marks]
- The doorway is drawn as a fixed opening. Explain, with reference to the maxims of judicial review, why this is a simplification. [3 marks]
- State one argument a critic of this power would make that the cartoon does not show. [2 marks]