UNIT 6
UNION JUDICIARY
ESTABLISHMENT AND CONSTITUTION OF THE SUPREME COURT
The Indian judiciary is an independent body divested from the executive and legislative bodies of
Indian Government. It takes care of Law and order in the Country along with solving problems.
Judiciary, the third organ of the government, has an equally important role to play along with
legislature and executive. It settles the disputes, interprets laws, protects fundamental rights and
acts as guardian of the Constitution
India has a single unified and integrated judicial system and that the Supreme Court is the
highest court in India
The judicial system is stratified into various levels
The promulgation of Regulating Act of 1773 established the Supreme Court of Judicature at
Calcutta as a Court of Record, with full power & authority.
The Supreme Courts at Madras and Bombay were established by King George – III in 1800 and
1823 respectively.
The India High Courts Act 1861 created High Courts for various provinces and abolished
Supreme Courts at Calcutta, Madras and Bombay and also the Sadar Adalats in Presidency
towns.
These High Courts had the distinction of being the highest Courts for all cases till the creation of
Federal Court of India under the Government of India Act 1935.
The Federal Court had jurisdiction to solve disputes between provinces and federal states and
hear appeal against Judgements from High Courts. After India attained independence in 1947,
the Constitution of India came into being on 26 January 1950. The Supreme Court of India also
came into existence
Constitution of Supreme Court of India:
The Supreme Court is the highest judicial authority of India. It consists of the Chief Justice and
33 other judges. The Parliament may increase the number of judges if it deems necessary.
The Chief Justice and other judges of the Supreme Court are appointed by the President of India.
While appointing the Chief Justice, the President is constitutionally required to consult such
other judges of the Supreme Court as he deems proper, but outgoing Chief Justice is always
consulted
Normally, the senior most judge of the Supreme Court is appointed as the Chief Justice of India,
although there is no constitutional requirement to do so.
While appointing other judges, the President is bound to consult the Chief Justice and other
senior judges, if he deems proper
Whenever there is vacancy or a likely vacancy in the Supreme Court, the Chief Justice and four
other senior most judges consider various names and recommend the names of the persons to be
appointed as judges of the Supreme Court
The power of selection of judges has passed on to a group of Supreme Court judges, called the
Collegium of the Court. The President now performs the formality of appointing the nominee of
the Supreme Court
Qualifications, Tenure and Removal of Judges:
A person is qualified for appointment as a judge only he/she is a citizen of India and if he/ she
fulfils one of the following conditions:
a) he/she has been for at least five years a Judge of as High Court or two or more than two
such courts; or b) he/she has been for at least ten years an advocate of a High Court or of
two or more than two such courts; or c) he/she is, in the opinion of the President, a
distinguished jurist
The Chief Justice of India and other judges of the Supreme Court hold office till they attain the
age of 65 years
A judge may voluntarily resign before expiry of his term
In exeptional cases a Supreme Court judge may be removed before the age of retirement,
according to the procedure laid down in the Constitution.
Thus a judge of the Supreme Court can be removed from office by an order of the President
passed after an address by each House of the Parliament supported by a majority of total
membership of the House and not less than two-third majority of the members of the House
present and voting, passed in the same session, has been presented to the President for such
removal on the ground of proved misbehavior or capacity
JURISDICTION OF SUPREME COURT:
The scope of powers of Supreme Court to hear and decide cases is called its jurisdiction.
ORIGINAL JURISDICTION
There are certain cases which fall within the exclusive jurisdiction of the Supreme Court. It
means that all such cases begin or originate in the Supreme Court, only. It also means that such
cases cannot be initiated in any other court. The cases or disputes that come under the original
jurisdiction are given below
(a) Disputes between the Government of India on the one side and one or more States on the
other side. (b) Disputes between the Government of India and one or more States on one
side and one or more States on the other side. (c) Disputes between two or more States
WRIT JURISDICTION
India adopted the concept of WRIT from British legal system, which empowers the courts to
issue prerogative writs
The Supreme Court is empowered to issue writs, including habeas corpus, mandamus,
prohibition, quo-warranto and certiorari for the enforcement of the fundamental rights of an
aggrieved citizen.
Habeas Corpus ( to have the body of)
Mandamus ( We Command)
Prohibition (Forbid)
Certiorari ( To be certified)
Quo- Warranto (By What Authority)
APPELLATE JURISDICTION
The Supreme Court is primarily a court of appeal and hears appeals against the judgements of the
lower courts. It enjoys a wide appellate jurisdiction which can be classified as:
1. Constitutional matters-if high court certifies that the case involves a substantial question of
law that needs interpretation of the constitution.
2. Civil matters- if the case involves a substantial question of law of general importance
3. The criminal matters-if high court has on appeal reversed the order of acquittal of an accused
and sentenced him to death or has withdrawn for trial before itself any case from subordinate
court
ADVISORY JURISDICTION
The Constitution under Article 143 authorises the President to seek the opinion of the Supreme
Court in the two categories of matters:
1. On any question of law or fact of public importance which has arisen or which is likely to
arise.
2. On any dispute arising out of any pre-constitution treaty, agreement, covenant, engagement,
other similar instruments.
COURT OF RECORD
The judgements, proceedings and acts of the Supreme Court are recorded for perpetual memory
and testimony. These records are admitted to be of evidentiary value and cannot be questioned
when produced before any court. They are recognised as legal precedents and legal references.
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
JUDICIAL ACTIVISM
Judicial activism signifies the proactive role of the Judiciary in protecting the rights of citizens
SPECIAL PETITION LEAVE
Special Leave Petitions (SLP) holds a prime place in the Judiciary of India, and has been
provided as a residual power in the hands of Supreme Court of India to be exercised only in
cases when any substantial question of law is involved, or gross injustice has been done
It provides the aggrieved party a special permission to be heard in apex court in appeal against
any judgment or order of any court/tribunal in the territory of India, except military tribunal and
court martial
HIGH COURT
Just below the Supreme Court, there are High Courts which are the highest courts of law in
States.
The High Courts are part of the Indian judiciary, and function under the supervision, guidance
and control of the Supreme Court. As highest court in the State, a High Court supervises the
subordinate courts in the State.
The High Courts are mainly courts of appeal. These Courts hear appeals from numerous
subordinate courts working at district level
The system of appointment of judges, their qualifications and the working of subordinate courts
is under the direct control and supervision of the High Court of the State concerned.
COMPOSITION:
There is a High Court for each State. However, there can be a common High Court for two or
more States.
Every High Court has a Chief Justice and a number of judges. The number of judges varies from
State to State. The number of judges of each High Court is determined by the President.
The judges of the High Courts are appointed by the President of India. While appointing Chief
Justice of a High Court, the President has to consult the Chief Justice of the Supreme Court and
the Governor of the State concerned
While appointing other judges, the President consults the Chief Justice of the Supreme Court, the
Chief Justice of the High Court and Governor of the State concerned.
The judges can be transferred from one High Court to another by the President.
Consultation with the Chief Justice of the Supreme Court in respect of appointments and
transfers of the judges of the High Court is also obligatory and binding for the President
QUALIFICATIONS, TENURE AND REMOVAL OF JUDGES:
In order to be appointed as a judge of a High Court, the person concerned should possess
following qualifications:
(i) He or she should be a citizen of India.
(ii) He or she should have held a judicial office, at the district level or below for at least ten
years.
OR
He or she should have been an advocate in one or more High Courts for at least ten years
continuously without break.
Once appointed, the High Court judges hold office till they attain the age of 62 years
A High Court judge may be removed before he or she attains the age of 62 years, only on the
ground of incapacity or proved misbehaviour. He or she may be removed if both the Houses of
Parliament adopt a resolution by a majority of their total membership and by two thirds majority
of members present
JURISDICTION AND POWERS OF HIGH COURT
The powers and jurisdiction of High Court can be classified under following heads:
ORIGINAL JURISDICTION
It means that applicant can directly go to High Court and not by means of appeals. This
power is used in the following matters
● Disputes arising out of relating to members of Parliament and state legislative assembly
● Relating to marriage, law, divorce, contempt of court etc.;
● Enforcement of fundamental rights (Supreme Court also has this power)
● Cases transferred from other court to itself which involves a question of law.
● Cases of Admirality
WRIT JURISDICTION
Article 226 states that High Court shall have power throughout the territories in relation to
which it exercises jurisdiction to issue to any person or authority including in appropriate
cases, any government, within those territories’ directions, orders, or writs.
APPELLATE JURISDICTION
It is said that the high court is the primary court of appeal i.e. it has power to hear the appeals
against the judgment of the subordinate courts within its territories. This power can be classified
in to 2 categories-Civil jurisdiction and Criminal jurisdiction
In civil cases its jurisdiction includes to the orders and judgments of the district courts, additional
district courts and other subordinate courts.
In criminal cases its jurisdiction includes judgments relating to sessions courts and additional
sessions court. These cases should be involving imprisonment for more than 7 years,
confirmation of any death sentence awarded by session court before execution
POWER OF SUPERINTENDENCE
The High Court has this power over all courts and tribunals except those dealing with the armed
forces functioning in the state. Hence in the exercise of this power it may
● Call for return from such courts
● May issue general rules and prescribe forms for regulating the practice and proceedings
of such courts
● Prescribe the form in which books and accounts are being kept by the officers of any
court
● Settle fees payable to the sheriff clerks, officers and legal practitioners
The constitution does not place any restriction on this power of superintendence over the
subordinate courts, it is not only by means of appeal by the person, it can be Suo motto. It is of
the nature of revision as it verifies the earlier judgments. In this regard it is considered as a
special function as the Supreme Court has no similar power vis a vis the High Court.
CONTROL OVER SUBORDINATE COURTS
This is an extension of the above supervisory and appellate jurisdiction. It states that the High
Court can with draw a case pending before any subordinate court, if it involves the substantial
question of law. The case can be disposed of itself or solve the question of law and return back to
the same court. In the second case the opinion tendered by High court would be binding on the
subordinate court. It also deals with matters pertaining to posting promotion, grant of leave,
transfer and discipline of the members there in. In this regard it appoints officers and servants to
be made by Chief Justice or such other judge of High Court as the Chief Justice may direct.
COURT OF RECORD
It involves recording of judgments, proceedings and acts of high courts to be recorded for the
perpetual memory. These records cannot be further questioned in any court. Based on this record
it has power to punish for the contempt of court either with simple imprisonment or with fine or
both.
JUDICIAL REVIEW
This power of High Court includes the power to examine the constitutionality of legislative and
executive orders of both central and state government. It is to be noted that the word judicial
review is nowhere mentioned in our constitution but the Article 13 and 226 explicitly provide
High Court with this power.
EXTENSION OF JURISDICTION OF HIGH COURT TO UNION TERRITORIES
Parliament by law may extend the jurisdiction of a High Court to or exclude the jurisdiction of a
high court from any union territory.
---------------------------- END OF POWERS OF HIGH COURT---------------------------------------
Transfer of a judge from one high court to another (Article 222) – according to it the
President may after consultation with the chief justice of India transfer a judge from one High
Court to any High Court. Also, when a judge has been or is so transferred he shall during the
period he serves, after the commencement of the constitution act as a judge of the other high
court, so shall be entitled to receive in addition to his salary such compensatory allowance as
may be determined by Parliament by law and until so determined such compensatory allowance
as the President may by order fix.
Later on, in 1977 in K Ashok Reddy case ruled that there requires judicial review in case of
arbitrary transfer of judges. Hence as to locus standi only the judge who is transferred can
challenge it.
Appointment of acting Chief Justice (Article 223) - when the office of Chief Justice of a High
Court is vacant or when any such Chief Justice by reason of absence or otherwise, unable to
perform the duties of his office, the duties of the office shall be performed by such one of the
other Judges of the court as the President may appoint for the purposes.
However, appointments of persons other than district judges to the judicial service of a state shall
be made by the Governor of the state in accordance with rules made by him after consultation
with the state public service commission and with the high court exercising jurisdiction in
relation to such state.
Establishment of a common High Court for two or more States:
(1) Notwithstanding anything contained in the preceding provisions of this Chapter, Parliament
may by law establish a common High Court for two or more States or for two or more States and
a Union territory.
(2) In relation to any such High Court,
(a) the reference in article 217 to the Governor of the State shall be construed as a reference to
the Governors of all the States in relation to which the High Court exercises jurisdiction;
(b) the reference in article 227 to the Governor shall, in relation to any rules, forms or tables for
subordinate courts, be construed as a reference to the Governor of the State in which the
Subordinate Courts are situate; and
(c) the reference in articles 219 and 229 to the State shall be construed as a reference to the State
in which the High Court has its principal seat:
Provided that if such principal seat is in a Union territory, the references in articles 210 and 229
to the Governor, Public Service Commission, Legislature and Consolidated Fund of the State
shall be construed respectively as references to the President, Union Public Service Commission,
Parliament and Consolidated Fund of India.
WRIT
Writs are a written order from Supreme Court or High Court that commands constitutional
remedies for Indian Citizens against the violation of their fundamental rights. Article 32 in the
Indian Constitution deals with constitutional remedies that an Indian citizen can seek from the
Supreme Court and High Court against the violation of his/her fundamental rights. The same
article gives the Supreme Court power to issue writs for the enforcement of rights whereas the
High Court has the same power under Article 226.
Types of Writs in India:
Supreme Court of India is the defender of the fundamental rights of the citizens. For that, it has
original and wide powers. It issues five kinds of writs for enforcing the fundamental rights of the
citizens. The five types of writs are:
● Habeas Corpus
● Mandamus
● Prohibition
● Certiorari
● Quo-Warranto
HABEAS CORPUS
The Latin meaning of the word ‘Habeas Corpus’ is ‘To have the body of.’ This writ is used to
enforce the fundamental right of individual liberty against unlawful detention. Through Habeas
Corpus, Supreme Court/ High Court orders one person who has arrested other person to bring the
body of the latter before the court.
Facts about Habeas Corpus in India:
● Supreme Court or High Court can issue this writ against both private and public
authorities.
● Habeas Corpus cannot be issued in the following cases:
● When detention is lawful
● When the proceeding is for contempt of a legislature or a court
● Detention is by a competent court
● Detention is outside the jurisdiction of the court
MANDAMUS
The literal meaning of this writ is ‘We command.’ This writ is used by the court to order the
public official who has failed to perform his duty or refused to do his duty, to resume his work.
Besides public official, Mandamus can be issued against any public body, a corporation, an
inferior court, a tribunal or government for the same purpose.
Facts about Mandamus in India:
● Unlike Habeas Corpus, Mandamus cannot be issued against a private individual
● Mandamus cannot be issued in the following cases:
● To enforce departmental instruction that does not possess statutory force
● To order someone to work when the kind of work is discretionary and not mandatory
● To enforce a contractual obligation
● Mandamus can’t be issued against Indian President or State Governors
● Against the chief justice of a high court acting in a judicial capacity
PROHIBITION
The literal meaning of ‘Prohibition’ is ‘To forbid.’ A court which is higher in position issues
Prohibition writ against a court which is lower in position to prevent the latter from exceeding its
jurisdiction or usurping a jurisdiction that it does not possess. It directs inactivity.
Facts about Prohibition in India:
● Writ of Prohibition can only be issued against judicial and quasi-judicial authorities.
● It can’t be issued against administrative authorities, legislative bodies, and private
individuals or bodies.
CERTIORARI
The literal meaning of the writ of ‘Certiorari’ is ‘To be certified’ or ‘To be informed.’ This writ
is against issued by a court higher in authority to a lower court or tribunal ordering them either to
transfer a case pending with them to itself or to squash their order in a case. It is issued on the
grounds of an excess of jurisdiction or lack of jurisdiction or error of law. It not only prevents
but also cures for the mistakes in the judiciary.
Facts about Certiorari in India:
● Pre-1991: The writ of Certiorari used to be issued only against judicial and quasi-judicial
authorities and not against administrative authorities
● Post-1991: Supreme Court ruled that the certiorari can be issued even against
administrative authorities affecting the rights of individuals
● It cannot be issued against legislative bodies and private individuals or bodies.
QUO-WARRANTO
The literal meaning of the writ of ‘Quo-Warranto’ is ‘By what authority or warrant.’ Supreme
Court or High Court issue this writ to prevent illegal usurpation of a public office by a person.
Through this writ, the court enquires into the legality of a claim of a person to a public office
Facts about Quo-Warranto in India:
● Quo-Warranto can be issued only when the substantive public office of a permanent
character created by a statute or by the Constitution is involved
● It can’t be issued against private or ministerial office
Note: This writ gives the right to seek redressal to any individual other than the aggrieved
person.
General Facts about Writs in India:
● Article 32 also empowers Parliament to authorize any other court to issue these writs
● Before 1950, only the High Courts of Calcutta, Bombay and Madras had the power to
issue the writs
● Article 226 empowers all the high court’s of India to issue the writs
● Writs of India are borrowed from English law where they are known as ‘Prerogative
writs.
PUBLIC INTEREST LITIGATION OR PIL
Earlier, the judiciary, including Supreme Court, entertained litigation only from those parties that
were affected directly or indirectly by it.
But subsequently, the Court permitted cases on the ground Structure of Government of public
interest litigation.
Public interest Litigation (PIL) means litigation filed in a court of law, for the protection of
“Public Interest”. Any matter where the interest of the public at large is affected can be redressed
by filing a Public Interest Litigation in a court of law such as Pollution, Terrorism, Road safety,
Construction hazards, etc.
‘Public Interest Litigation’ has been borrowed from American jurisprudence, where it was
designed to provide legal representation to previously unrepresented groups like the poor, racial
minorities, unorganized consumers, citizens who were passionate about environmental issues,
etc.
The chief objective behind PILs is ensuring justice to all and promoting the welfare of the
people. It is generally used to safeguard group interests and not individual interests, for which
Fundamental Rights have been provided.
The Supreme Court of India and the High Courts have the right to issue PILs. The concept of
PILs stems from the power of judicial review.
PIL is not defined in any statute or in any act. It has been interpreted by judges to consider the
intent of the public at large. It is the power given to the public by courts through judicial
activism. Read in detail on the Judicial Activism on the linked page
However, the person filing the petition must prove to the court’s satisfaction that the petition is
being filed for public interest and not just as a frivolous litigation by a busy body.
PILs have played an important role in India’s polity. They have been responsible for some
landmark judgements in India such as the banning of instant triple talaq, opening up the doors of
the Sabarimala and the Haji Ali shrines to women etc.
PROCEDURE TO FILE PIL IN INDIA
Any Indian citizen or organisation can move the court for a public interest/cause by filing a
petition:
1. In the SC under Article 32
2. In the High Courts under Article 226
The court can treat a letter as a writ petition and take action on it. The court has to be satisfied
that the writ petition complies with the following: the letter is addressed by the aggrieved person
or a public-spirited individual or a social action group for the enforcement of legal or
constitutional rights to any person who, upon poverty or disability, are not able to approach the
court for redress. The court can also take action based on newspaper reports if it is satisfied with
the case.
Some of the matters which are entertained under PIL are:
● Bonded Labour matters
● Neglected Children
● Non-payment of minimum wages to workers and exploitation of casual workers
● Atrocities on women
● Environmental pollution and disturbance of ecological balance
● Food adulteration
● Maintenance of heritage and culture
SIGNIFICANCE OF PIL:
● The original purpose of PILs have been to make justice accessible to the poor and the
marginalised.
● It is an important tool to make human rights reach those who have been denied rights.
● It democratises the access of justice to all.
● Any citizen or organisation who is capable can file petitions on behalf of those who
cannot or do not have the means to do so.
● It helps in judicial monitoring of state institutions like prisons, asylums, protective
homes, etc.
● It is an important tool for implementing the concept of judicial review.
PROS AND CONS OF PIL:
PROS
● citizens get an inexpensive remedy to solve the problem of crime as there is only a
nominal rate of court fees
● courts can concentrate on larger public issues such as the issues of Human Rights,
consumer welfare and environment
● PILs have made it easier for the judiciary to haul up the executive when it is not
performing its duties properly
● If the petitioner is socially or economically weak and cannot provide necessary evidence
to support his case, the court orders appointed commissions to look into and collect
information about the case.
CONS
● Many people started handling PIL as tool for harassment because frivolous cases can be
filed without heavy court fee as compared to private litigations
● Due to the flexibility of character of the PIL, the opposite party gets an opportunity to
ascertain the precise allegation and respond to specific issues.
● The judiciary has been criticized due to the overstepping of its jurisdiction and that it is
unable to implement its order effectively
● PIL as being misused in many ways, by the public agitating for private grievances in the
grab of public interest by seeking publicity rather than supporting the public cause.
