The Supreme Court of India

Establishment and Composition (Articles 124)

The Constitution of India provides for a single integrated judicial system, with the Supreme Court at the apex. This integrated structure stands in contrast to the dual system of courts in countries like the USA.

Articles 124 to 147 in Part V of the Constitution deal with the Union Judiciary, specifically the Supreme Court.

Establishment:

Article 124(1) states that there shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.

Parliament has increased the number of judges over time. As of 2019, the Supreme Court (Number of Judges) Amendment Act, 2019, increased the number of judges from 30 to 33 plus the Chief Justice of India (CJI), making the total sanctioned strength 34.

Appointment of Judges

The judges of the Supreme Court are appointed by the President (Article 124(2)).

The Chief Justice of India is appointed by the President after consultation with such of the Judges of the Supreme Court and of the High Courts as the President may deem necessary.
Other Judges are appointed by the President after consultation with the Chief Justice of India and such other Judges of the Supreme Court and the High Courts as the President may deem necessary.

The consultation with the Chief Justice is obligatory in the case of appointment of a judge other than the Chief Justice. The procedure for appointment and the role of consultation have been subjects of judicial interpretation, leading to the 'Collegium System'.

Collegium System:

The Supreme Court, through a series of judgments (First Judges Case 1982, Second Judges Case 1993, Third Judges Case 1998), evolved the Collegium system. The system for appointing Supreme Court judges involves a collegium comprising the Chief Justice of India and four senior-most Supreme Court judges. The government's role is limited to verifying the information and seeking clarification, but ultimately, the collegium's recommendations are binding.

An attempt to replace the Collegium System with a National Judicial Appointments Commission (NJAC) through the 99th Amendment Act, 2014, was struck down by the Supreme Court in 2015, upholding the primacy of the Collegium system.

Qualifications for Judges

A person to be appointed as a Judge of the Supreme Court must (Article 124(3)):

Be a citizen of India.
Have been a Judge of a High Court for five years; or
Have been an Advocate of a High Court for ten years; or
Be a distinguished jurist in the opinion of the President.

Note: There is no minimum age prescribed for appointment as a judge of the Supreme Court.

Removal of Judges (Impeachment)

A Judge of the Supreme Court can be removed from his office by an order of the President, passed after an address by Parliament has been presented to him in the same session for such removal (Article 124(4)).

The grounds for removal are proved misbehaviour or incapacity.

Procedure for Removal (Judges Inquiry Act, 1968):

A removal motion, signed by 100 members of Lok Sabha or 50 members of Rajya Sabha, is given to the Speaker/Chairman.
The Speaker/Chairman may accept or reject the motion.
If accepted, a three-member committee is constituted to investigate the charges (Chief Justice or a Judge of the Supreme Court, Chief Justice of a High Court, and a distinguished jurist).
If the committee finds the judge guilty, the motion is considered in the House where it was introduced.
The motion must be passed by a special majority (majority of the total membership of the House and a majority of not less than two-thirds of the members present and voting) in that House.
Then it goes to the other House, where it must also be passed by a special majority.
After being passed by both Houses, the address is presented to the President, who issues the removal order.

This elaborate and difficult process is often referred to as 'impeachment', although the Constitution uses the term 'removal'. So far, no Supreme Court or High Court judge has been removed through this process, although impeachment proceedings have been initiated.

Independence of the Judiciary

The Constitution contains several provisions to ensure the independence of the Supreme Court (and High Courts) from the executive and legislature:

Mode of appointment: Appointment is by the President, but through the Collegium system, which ensures judicial primacy.
Security of tenure: Judges can be removed only through the difficult process of impeachment.
Fixed service conditions: Salaries, allowances, etc., cannot be altered to their disadvantage after appointment (except during financial emergency).
Expenses charged on Consolidated Fund of India: The expenditure of the Supreme Court is not subject to the vote of Parliament.
Conduct of Judges cannot be discussed: The conduct of a judge cannot be discussed in Parliament or state legislature, except during an impeachment motion.
Prohibition on practice after retirement: Retired Supreme Court judges are prohibited from pleading or acting in any court or before any authority in India.
Power to punish for contempt: The Supreme Court can punish for its contempt.
Freedom to appoint staff: The Chief Justice can appoint officers and servants of the Supreme Court.
Separation from Executive: Ensured by Article 50 (DPSP) and legal practice.

These provisions are vital for enabling the judiciary to function impartially as the guardian of the Constitution and the protector of Fundamental Rights.

Jurisdiction of the Supreme Court

The Supreme Court of India is vested with extensive jurisdiction and powers, making it one of the most powerful courts in the world. Its jurisdiction can be broadly classified as:

Original Jurisdiction (Art. 131)

Original jurisdiction means the power to hear a case for the first time, not by way of appeal. The Supreme Court's original jurisdiction is exclusive in certain disputes:

Disputes between the Centre and one or more states.
Disputes between the Centre and any state(s) on one side and one or more other states on the other side.
Disputes between two or more states.

In these cases, the Supreme Court acts as a federal court, resolving disputes between constituent units of the federation. This jurisdiction does not extend to disputes arising out of treaties, agreements, covenants, etc., entered into before the commencement of the Constitution.

Appellate Jurisdiction (Art. 132-136)

The Supreme Court is the highest court of appeal in the country. It hears appeals against judgments of High Courts and other tribunals.

Appeals in constitutional matters (Art. 132): An appeal lies to the SC from any judgment, decree, or final order of a High Court if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.
Appeals in civil matters (Art. 133): An appeal lies from a High Court if the High Court certifies 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.
Appeals in criminal matters (Art. 134): An appeal lies from a High Court in criminal cases in certain situations defined in the Article, such as when the High Court has reversed an order of acquittal and sentenced the accused to death, or has withdrawn a case from a subordinate court and convicted the accused to death, or certifies that the case is fit for appeal to the Supreme Court.
Appeal by Special Leave (Art. 136): This is a discretionary power of the Supreme Court. It can grant special leave to appeal from any judgment, decree, determination, sentence, or order in any cause or matter passed or made by any court or tribunal in the territory of India (except military tribunals and court martial).

Writ Jurisdiction (Art. 32)

As discussed under Fundamental Rights, Article 32 grants the Supreme Court the power to issue writs (Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto) for the enforcement of Fundamental Rights only.

This is part of its original jurisdiction in the sense that an aggrieved person can move the Supreme Court directly for violation of Fundamental Rights.

Advisory Jurisdiction (Art. 143)

Article 143 empowers the President to seek the opinion of the Supreme Court on two categories of matters:

On any question of law or fact of public importance. In this case, the Supreme Court may give its opinion.
On any dispute arising out of any pre-constitutional treaty, agreement, covenant, engagement, sanad or other similar instrument. In this case, the Supreme Court must give its opinion.

The opinion given by the Supreme Court under Article 143 is only advisory and is not binding on the President.

Revisory Jurisdiction (Art. 137)

Article 137 grants the Supreme Court the power to review any judgment pronounced or order made by it.

This means the Supreme Court is not bound by its own previous decisions and can review and change them. This power is crucial for correcting errors and adapting the law to changing social conditions.

Powers of Judicial Review

Judicial Review is the power of the Supreme Court to examine the constitutionality of legislative enactments and executive orders of both the Central and State governments. Article 13 is the explicit source for judicial review with respect to Fundamental Rights. Other articles also implicitly grant this power.

If a law or order is found to be unconstitutional (violating any provision of the Constitution), the Supreme Court can declare it null and void. This power makes the Supreme Court the guardian of the Constitution and the ultimate arbiter of the law.

Other powers of the Supreme Court include:

Court of Record (Article 129): Its proceedings and judgments are recorded for perpetual memory and testimony, and it has the power to punish for contempt of itself.
Power to do complete justice (Article 142): It can pass such decree or make such order as is necessary for doing complete justice in any cause or matter before it.
Control over High Courts and other courts: Rules made by the Supreme Court regarding its practice and procedure require the approval of the President.

The High Courts

Establishment and Composition (Articles 214-237)

The High Court is the highest court in a state. Articles 214 to 231 in Part VI of the Constitution deal with the High Courts.

Establishment:

Article 214 states that there shall be a High Court for each State.

However, Parliament has the power to establish a common High Court for two or more states or for two or more states and a Union Territory (Article 231). For example, the Punjab and Haryana High Court, the Gauhati High Court, and the Bombay High Court are common High Courts.

Composition:

Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint (Article 216). The number of judges in a High Court is not fixed by the Constitution but is determined by the President based on the volume of work.

Appointment of Judges

The judges of a High Court are appointed by the President (Article 217).

The Chief Justice of a High Court is appointed by the President after consultation with the Chief Justice of India and the Governor of the state concerned.
Other Judges are appointed by the President after consultation with the Chief Justice of India, the Governor of the state concerned, and the Chief Justice of the High Court concerned.

The appointment of High Court judges is also governed by the Collegium System, involving the CJI, two senior-most Supreme Court judges, and the Chief Justice and two senior-most judges of the concerned High Court.

Qualifications for Judges

A person to be appointed as a Judge of a High Court must (Article 217(2)):

Be a citizen of India.
Have held a judicial office in the territory of India for ten years; or
Have been an Advocate of a High Court (or two or more such Courts in succession) for ten years.

Note: There is no minimum age prescribed, nor is there a provision for appointment of a 'distinguished jurist' as in the Supreme Court.

Tenure and Removal:

Tenure: A High Court judge holds office until he attains the age of 62 years (increased from 60 by the 15th Amendment Act, 1963).
Removal: A High Court judge can be removed from office by an order of the President on the same grounds and in the same manner as a Judge of the Supreme Court (i.e., through impeachment by Parliament) (Article 218).
Transfer: The President can transfer a judge from one High Court to another after consultation with the Chief Justice of India (Article 222).

Independence of High Courts:

Similar to the Supreme Court, the Constitution ensures the independence of High Courts through provisions related to the mode of appointment, security of tenure, fixed service conditions, expenses charged on the Consolidated Fund of the State (except salaries/allowances of the CJ & Judges which are on Consolidated Fund of India), restriction on practice after retirement, etc.

Jurisdiction of High Courts

The jurisdiction of High Courts is generally higher than that of the Supreme Court in terms of scope, although the Supreme Court has ultimate appellate jurisdiction and the power of judicial review over High Courts.

Writ Jurisdiction (Article 226)

As discussed under Fundamental Rights, Article 226 grants the High Courts the power to issue writs (Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto) for the enforcement of Fundamental Rights and 'for any other purpose' (i.e., for the enforcement of any other legal right). This makes the writ jurisdiction of the High Court wider than that of the Supreme Court (which is restricted to Fundamental Rights under Article 32).

Original Jurisdiction

Generally, High Courts primarily have appellate jurisdiction. However, they have original jurisdiction in certain matters, which vary from one High Court to another. Historically, High Courts in presidency towns (Calcutta, Bombay, Madras) had original civil and criminal jurisdiction in certain cases. Some High Courts also have original jurisdiction in matters relating to wills, marriage, company law, and contempt of court.

Matters relating to the election of members of Parliament and State Legislatures are also heard by High Courts in their original jurisdiction (election petitions).

Appellate Jurisdiction

High Courts hear appeals against judgments of subordinate courts (District and Sessions Courts) in both civil and criminal matters. This is their most significant jurisdiction.

Civil Appeals: First appeals against significant civil judgments of district courts and second appeals against judgments where a substantial question of law is involved.
Criminal Appeals: Appeals against convictions and sentences passed by Sessions Courts. Certain serious cases (like death sentences) are subject to confirmation by the High Court.

Supervisory and Administrative Jurisdiction (Article 227)

Article 227 empowers every High Court to exercise superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction (except military tribunals or courts).

This includes the power to call for returns from such courts, make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts, and prescribe the form in which books, entries, and accounts shall be kept by officers of any such courts.
This power of superintendence is distinct from appellate or revisional jurisdiction and includes both judicial and administrative control.

High Courts also have administrative control over subordinate courts regarding appointments, postings, promotions, and discipline of judicial officers below the rank of District Judge.

Transfer of Cases

Article 228 empowers a High Court to withdraw a case pending in a subordinate court if it is satisfied that it involves a substantial question of law as to the interpretation of the Constitution. The High Court may then either dispose of the case itself or determine the constitutional question and send the case back to the subordinate court with its judgment on the constitutional question.

Article 227 also implicitly includes the power to transfer cases from one subordinate court to another within its jurisdiction.

High Courts are also courts of record (Article 215) and have the power to punish for contempt of themselves.

Subordinate Judiciary

District Courts and Other Subordinate Courts (Articles 233-237)

The state judiciary consists of a High Court and a hierarchy of subordinate courts. Part VI, Chapter VI (Articles 233 to 237) of the Constitution deals with the subordinate courts.

Structure:

The structure and nomenclature of subordinate courts vary slightly from state to state. Generally, at the district level, the principal court is the District and Sessions Judge's court. Below this, there are various levels of civil and criminal courts.

Civil Side: District Judge (highest), Senior Civil Judge, Junior Civil Judge (also known as Munsif, Civil Judge, etc.).
Criminal Side: Sessions Judge (highest), Chief Judicial Magistrate, Judicial Magistrate.

When the District Judge hears civil cases, he is called the District Judge. When he hears criminal cases, he is called the Sessions Judge.

Appointment of District Judges

Appointments of persons to be and the posting and promotion of District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State (Article 233).

A person not already in the service of the Union or the State shall be eligible to be appointed a District Judge only if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.

Appointment of other Judges:

Appointments of persons other than District Judges to the judicial service of a State shall be made by the Governor in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court (Article 234).

Control over Subordinate Courts

The control over district courts and courts subordinate thereto, including the posting, promotion, and grant of leave to persons belonging to the judicial service of a State and holding any post inferior to the post of a District Judge, is vested in the High Court (Article 235).

This vesting of control in the High Court is a crucial aspect of ensuring the independence of the subordinate judiciary from the executive. Articles 233 and 234 regarding appointments also require consultation with or rules made after consultation with the High Court and/or Public Service Commission.

The subordinate judiciary forms the base of the judicial system, dealing with the bulk of cases at the district and lower levels, providing access to justice for the common person.

Judicial Review and Judicial Activism

Concept and Scope of Judicial Review

Judicial Review is a fundamental feature of the Indian Constitution and a critical power exercised by the Supreme Court and High Courts. It signifies the power of the judiciary to examine the validity of laws and executive actions.

Concept:

Judicial Review is the power of the courts to:

Examine the constitutionality of legislative enactments and executive orders.
Declare them void if they are found to be inconsistent with the provisions of the Constitution (ultra vires the Constitution).

This power acts as a check on the powers of the legislature and the executive, ensuring that they function within the limits prescribed by the Constitution.

The concept of judicial review in India is influenced by both the American system (explicit declaration of laws as unconstitutional) and the British system (parliamentary sovereignty, though limited by the written Constitution in India). The express provisions for judicial review are found in Articles 13, 32, 226, 131, 132, 133, 134, 245, 246, etc.

Scope of Judicial Review:

The scope of judicial review in India is wide but not as wide as in the USA, where the concept of 'due process of law' allows the court to question the fairness of the law itself. In India, the phrase 'procedure established by law' in Article 21 initially led to a narrower scope, but the interpretation in the Maneka Gandhi case expanded it towards 'due process'.

Judicial review applies to:

Review of Legislative and Executive Actions

Legislative Actions: Laws passed by Parliament and State Legislatures can be challenged in courts on grounds such as:
- Violation of Fundamental Rights (Article 13).
- Violation of other constitutional provisions (e.g., lack of legislative competence, violation of federal distribution of powers).
- Arbitrariness (under Article 14).
- Unreasonableness of restrictions (under Article 19).
Executive Actions: Orders, rules, regulations, notifications, and actions of the Union and State Executives can be challenged if they are illegal, unconstitutional, arbitrary, or beyond the authority granted by law.

Constitutional amendments are also subject to judicial review on the ground of violating the basic structure of the Constitution.

Doctrine of Basic Structure and Judicial Review

The Basic Structure Doctrine (Kesavananda Bharati case, 1973) is intimately linked with judicial review. While Parliament has the power to amend the Constitution, the judiciary has the power to review such amendments to ensure they do not violate the basic structure.

The Supreme Court itself has declared Judicial Review as a component of the basic structure (Minerva Mills case, 1980). This means that Parliament cannot amend the Constitution to take away or dilute the power of judicial review itself.

The doctrine provides a higher standard for judicial review of constitutional amendments, ensuring that the fundamental identity and principles of the Constitution are preserved.

Judicial Activism in India

Judicial Activism refers to the judiciary taking a proactive role in protecting and enforcing the rights of citizens and ensuring justice, often by interpreting the law broadly or going beyond strict legal texts to address societal issues. It stands in contrast to judicial restraint.

Emergence in India:

Judicial activism gained prominence in India in the late 1970s and 1980s. Factors contributing to its rise included the failure of the executive and legislature to effectively address certain problems, the liberal interpretation of Fundamental Rights (especially Article 21), and the development of Public Interest Litigation (PIL).

PIL (Public Interest Litigation)

Public Interest Litigation is a key tool and manifestation of judicial activism in India. Traditionally, the judicial system required strict locus standi ('victim' requirement) for a person to approach the court.

PIL relaxed this rule. It allows any public-spirited individual or organisation to approach the higher courts (Supreme Court or High Courts) on behalf of a person or group whose rights (especially Fundamental Rights) are violated but who are unable to access justice themselves (e.g., due to poverty, illiteracy, social status, disability).

PIL has been used by courts to intervene in a wide range of matters, including environmental protection, child labour, bonded labour, prisoners' rights, access to justice, health, education, and combating corruption. Courts have often entertained PILs based on letters, telegrams, or even newspaper reports.

Prominent figures associated with the early development of PIL in India include Justices V. R. Krishna Iyer and P. N. Bhagwati.

Judicial Overreach vs. Judicial Activism

While judicial activism has played a positive role in expanding rights, ensuring governmental accountability, and providing justice to the marginalised, it has also faced criticism for sometimes crossing the line into Judicial Overreach.

Judicial Overreach is said to occur when the judiciary starts interfering in the functions of the executive or legislature, effectively making laws or policies or supervising the day-to-day administration, thereby violating the principle of separation of powers which is part of the basic structure.

Criticisms of Judicial Activism/Overreach:

Undermining Separation of Powers: Judiciary encroaching upon the domains of the legislature and executive.
Lack of Expertise: Judges may not have the expertise to formulate policies or manage complex administrative issues.
Accountability: Judges are not elected and thus not directly accountable to the people, unlike the executive and legislature.
Increased Litigation: PIL can sometimes lead to frivolous cases and overburden the courts.

The debate between judicial activism and judicial restraint is ongoing. While acknowledging the need for judicial intervention to uphold the Constitution and rights, critics argue for caution to prevent the judiciary from becoming a super-legislature or super-executive.

The judiciary's role in balancing the various organs of the State and safeguarding the Constitution remains crucial, and judicial review is an indispensable tool for this purpose, whether exercised through activism or restraint depending on the context.