Module IV

MODULE IV- JUDICIARY UNDER THE CONSTITUTION

INTRODUCTION

There must be an independent Judiciary for establishing the supremacy of the Constitution in
a democratic set up. Supreme Court, established under the Constitution, is the final interpreter
and guardian of the Constitution. The concept of Judicial Review has been held to be a part of
the basic structure and therefore, cannot be taken away by the acts of the Parliament or the
Executive.

If the Legislature lacks the competence to enact a legislation or issue an order, the Courts can,
in the exercise of their power of Judicial Review, hold such a law as invalid. The Courts
impose judicial restraint on the legislative as well as the executive organs of the Government.

In the case of A K Gopalan v. State of Madras1 , the power of Judicial Review was firmly
established and the limitations for its exercise were clearly laid down. In Keshavananda
Bharti’s case2, the Supreme Court held that the judicial review is a ‘basic feature’ of the
Constitution and cannot be amended.

THE UNION JUDICIARY

Establishment and Constitution of Supreme Court (Article 124)

Article 124 in the Constitution reads as-

(1) 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.
(2) Every Judge of the Supreme Court shall be appointed by the President by
warrant under his hand and seal after consultation with such of the Judges of the
Supreme Court and of the High Courts in the States as the President may deem
necessary for the purpose and shall hold office until he attains the age of sixty-five
years:
Provided that in the case of appointment of a Judge other than the Chief Justice,


1 AIR 1950 SC 27).
2 AIR 1973 SC 1461.

the Chief Justice of India shall always be consulted:

Provided further that –

(a) a Judge may, by writing under his hand addressed to the President, resign his

office;

(b) a judge may be removed from his office in the manner provide in clause (4).

(2A) The age of a Judge of the Supreme Court shall be determined by such

authority and in such manner as Parliament may by law provide.

(3) A person shall not be qualified for appointment as a Judge of the Supreme

Court unless he is a citizen of India and –

(a) has been for at least five years a Judge of a High Court or of two or more such

Courts in succession; or

(b) has been for at least ten years an advocate of a High Court or of two or more

such Courts in succession; or

(c) is, in the opinion of the President, a distinguished jurist.

Explanation I: In this clause “High Court” means a High Court which exercises, or

which at any time before the commencement of this Constitution exercised,

jurisdiction in any part of the territory of India.

Explanation II: In computing for the purpose of this clause the period during

which a a person has been an advocate, any period during which a person has held

judicial office not inferior to that of a district judge after he became an advocate

shall be included.

(4) A Judge of the Supreme Court shall not be removed from his office except by

an order of the President passed after an address by each House of Parliament

supported by a majority of the total membership of that House and by a majority

of not less than two-thirds of the members of that House present and voting has

been presented to the President in the same session for such removal on the

ground of proved misbehaviour or incapacity.

(5) Parliament may by law regulate the procedure for the presentation of an

address and for the investigation and proof of the misbehaviour or incapacity of a

Judge under clause (4).

(6) Every person appointed to be a Judge of the Supreme Court shall, before he

enters upon his office, make and subscribe before the President, or some person

appointed in that behalf by him, an oath or affirmation according to the form set

out for the purpose in the Third Schedule.

(7) No person who has held office as a Judge of the Supreme Court shall plead or
act in any court of before any authority within the territory of India.

Strength

The Constitution of India provides for the establishment of a Supreme Court of India
consisting of a Chief Justice and such other number of judges as prescribed by Parliament
from time to time. The number of judges has been increased to 33 by a 2019 amendment Bill.

Appointment

After the National Judicial Appointments Committee has been held to be unconstitutional, the
old collegiums system is back for appointment of Judges. A person is appointed as a Judge
through a collegiums consisting of the Chief Justice and four other seniormost judges of the
Court. The final appointment is made by the President of India.

PUBLIC INTEREST LITIGATION

The rule of locus standi is that a person whose rights are infringed can only file a petition for
their enforcement. This traditional rule of locus standi has now been altered by the SC’s
rulings allowing persons other than the ones whose rights have been affected to file petitions
before the court in the larger public interest. The Court now permits ‘Social action litigation’
or ‘Public interest litigation’ at the instance of public spirited citizens for the enforcement of
constitutional or legal rights.

Public Interest Litigations find their constitutional validity under Article 32 and 226 of the
Constitution. Let’s look at the provisions of these Articles to understand the concept better.

Article 32 of the Constitution of India reads as-

Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 )
and ( 2 ), Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.

Article 226 of the Constitution of India reads as-

“Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers,
throughout the territories in relation to which it exercise jurisdiction, to issue to any
person or authority, including in appropriate cases, any Government, within those
territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for any other purpose
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in
part, arises for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or
stay or in any other manner, is made on, or in any proceedings relating to, a petition
under clause ( 1 ), without
(a) furnishing to such party copies of such petition and all documents in support of the
plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High
Court for the vacation of such order and furnishes a copy of such application to the
party in whose favour such order has been made or the counsel of such party, the
High Court shall dispose of the application within a period of two weeks from the
date on which it is received or from the date on which the copy of such application is
so furnished, whichever is later, or where the High Court is closed on the last day of
that period, before the expiry of the next day afterwards on which the High Court is
open; and if the application is not so disposed of, the interim order shall, on the expiry
of that period, or, as the case may be, the expiry of the aid next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of
the power conferred on the Supreme court by clause ( 2 ) of Article 32.”

In S P Gupta v. Union of India3 (‘Judges Transfer Case’), Justice P N Bhagwati, in the SC
ruling, laid the foundation of Public Interest Litigations, also known as ‘representative
proceedings’.

The doctrine of Public Interest Litigation applies to any case of public injury arising from (as
observed in the S P Gupta’s case)-

Breach of any public duty
Violation of some provisions of the Constitution
Violations of the law
In M C Mehta v. Union of India4, the Supreme Court widened the scope of Public Interest
Litigation and held that a poor man can move the court, by writing a letter to the Judge.

The limitation of Public Interest Litigation is that the jurisdiction cannot be abused by people
with vested interests or for personal gains. The petitions revolving around personal matters
should not be entertained as Public Interest Litigations.

The relief generally sought in Public Interest Litigations is future and corrective in nature,
than compensatory. In cases of setting an example, the Courts have also imposed exemplary
damages on the defaulting party to serve as a deterrent in the future.

APPOINTMENT AND TRANSFER OF JUDGES

Articles 124 and 217 deal with the appointment of Supreme Court and High Court Judges
respectively. The Supreme Court Judges are appointed by the President after consultation
with the collegiums. The President shall also appoint judges of High Court after consultation
with the Chief Justice of India, the Governor of that State and the Chief Justice of the High
Court.

REQUIREMENT OF CONSULTATION


3 AIR 1984 SC 802.
4 AIR 1987 SC 1087.

The requirement of consultation of the Chief Justice by the President is a mandatory
requirement.
‘Consultation’ does not necessarily mean concurrence, but it definitely means that
there must be due deliberation between the Chief Justice and the President on facts.
In S P Gupta v. Union of India5, the Supreme Court held that no primacy need to be
given to the opinion of the Chief Justice of India and it is the Executive which has the
primacy in such situations.
In the Supreme Court Advocates-on-record Association v. Union of India6, A 9-Judge
bench reviewed the judgement of S P Gupta and established “judicial supremacy”.
The Court held that in matters of appointment of Judges of the Supreme Court and the
High Court, the President is bound to act in accordance with the opinion of the Chief
Justice. ‘Participatory Consultative Process’ need to be adopted in which the
executive should have the power to act as a mere check on the exercise of power of
the Chief Justice.
In Judges Re. Presidential reference7, the Supreme Court gave its advisory opinion
which provided more safeguards in the form of consultation of plurality of judges.

POWERS AND JURISCITION OF THE SUPREME COURT

Supreme Court as a Court of Record

Article 129 of the Constitution of India reads as-

“Supreme Court to be a court of record The Supreme Court shall be a court of record and
shall have all the powers of such a court including the power to punish for contempt of
itself.”

Types of Jurisdiction

The Supreme Court has original, appellate and advisory jurisdiction.

Article 131 of the Constitution provides for the original jurisdiction. It reads as follows-


5 AIR 1982 SC 149.
6 AIR 1994 SC 268.
7 AIR 1999 SC 1.

“Original jurisdiction of the Supreme Court: Subject to the provisions of this Constitution,
the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any
dispute

(a) between the Government of India and one or more States; or

(b) between the Government of India and any State or States on one side and one or more
other States on the other; or

(c) between two or more States, if and in so far as the dispute involves any question (whether
of law or fact) on which the existence or extent of a legal right depends: Provided that the
said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant,
engagements, and or other similar instrument which, having been entered into or executed
before the commencement of this Constitution, continues in operation after such
commencement, or which provides that the said jurisdiction shall not extend to such a

dispute.”

Appellate jurisdiction of the Supreme Court is provided under Articles 132-134. It is only
available on the fulfilment of certain procedure and conditions.

Article 132 of the Constitution reads-

Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases:

( 1 ) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a
High Court in the territory of India, whether in a civil, criminal or other proceeding, if the
High Court certifies under Article 134A that the case involves a substantial question of law as
t the interpretation of this Constitution

(2) Omitted

(3) Where such a certificate is given, any party in the case may appeal to the Supreme Court
on the ground that any such question as aforesaid has been wrongly decided Explanation For
the purposes of this article, the expression final order includes an order declaring an issue
which, if decided in favour of the appellant, would be sufficient for the final disposal of the
case.

Article 133 of the Constitution provides for appeals in civil matters. It reads as follows-

“Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil
matters

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a
civil proceeding of a High Court in the territory of India if the High Court certifies under
Article 134A

(a) that the case involves a substantial question of law of general importance; and

(b) that in the opinion of the High Court the said question needs to be decided by the
Supreme Court

(2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court under
clause ( 1 ) may urge as one of the grounds in such appeal that a substantial question of law
as to the interpretation of this Constitution has been wrongly decided

(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law
otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one
Judge of a High Court.”

Article 134 provides for appeals in criminal matters. It reads as follows-

“Appellate jurisdiction of Supreme Court in regard to criminal matters

(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a
criminal proceeding of a High Court in the territory of India if the High Court has on appeal
reversed an order of acquittal of an accused person and sentenced him to death; or has
withdrawn for trial before itself any case from any court subordinate to its authority and has
in such trial convicted the accused person and sentenced him to death; or

(c) certifies under Article 134A that the case is a fit one for appeal to the Supreme Court:
Provided that an appeal under sub clause (c) shall lie subject to such provisions as may be
made in that behalf under clause ( 1 ) of Article 145 and to such conditions as the High Court
may establish or require

(2) Parliament may by law confer on the Supreme Court any further powers to entertain and
hear appeals from any judgment, final order or sentence in a criminal proceeding of a High
Court in the territory of India subject to such conditions and limitations as may be specified
in such law.”

Appeal by special leave is given under Article 136 of the Constitution. It reads as-
“Special leave to appeal by the Supreme Court:
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, 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
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the Armed
Forces.”
The appeal under this Article is also called a ‘Special Leave Petition’ (SLP). The powers of
the Supreme Court to grant special leave to appeal are far wider than High Courts’ power to
grant certificates to appeal to the Supreme Court. It is generally applied for the cases which
would otherwise carry on a gross miscarriage of justice.
Advisory Jurisdiction
Advisory Jurisdiction of the Supreme Court if given under Article 143 of the Constitution.
The power is exercised by the president to seek advice from the Supreme Court on any
question of law or fact of public importance.
Article 143 of the Constitution reads as-
“Power of President to consult Supreme Court:
( 1 ) If at any time it appears to the President that a question of law or fact has arisen, or is
likely to arise, which is of such a nature and of such public importance that it is expedient to
obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for
consideration and the Court may, after such hearing as it thinks fit, report to the President its
opinion thereon
(2) The President may, notwithstanding anything in the proviso to Article 131, refer a dispute
of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme
Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.”

POWERS AND JURISDICTION OF THE HIGH COURT

The High Court is a Court of record and the same has been given under Article 215 of the
Constitution.

Article 215 reads as-

“High Courts to be courts of record:

Every High Court shall be a court of record and shall have all the powers of such a court
including the power to punish for contempt of itself.”

Original jurisdiction of the High Court is given under Article 226 of the Constitution. It reads
as follows-

“Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout
the territories in relation to which it exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in part,
arises for the exercise of such power, notwithstanding that the seat of such Government or
authority or the residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or
in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1
), without

(a) furnishing to such party copies of such petition and all documents in support of the plea
for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court
for the vacation of such order and furnishes a copy of such application to the party in whose

favour such order has been made or the counsel of such party, the High Court shall dispose of
the application within a period of two weeks from the date on which it is received or from the
date on which the copy of such application is so furnished, whichever is later, or where the
High Court is closed on the last day of that period, before the expiry of the next day
afterwards on which the High Court is open; and if the application is not so disposed of, the
interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid
next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme court by clause ( 2 ) of Article 32.”

High Court also has appellate jurisdiction. The High Court also exercises disciplinary
jurisdiction over subordinate courts under Article 235 of the Constitution. Article 235 of the
Constitution reads as-

“Control over subordinate courts:

The control over district courts and courts subordinate thereto including the posting and
promotion of, and the grant of leave to, persons belonging to the judicial service of a State
and holding any post inferior to the post of district judge shall be vested in the High Court,
but nothing in this article shall be construed as taking away from any such person any right of
appeal which he may under the law regulating the conditions of his service or as authorising
the High Court to deal with him otherwise than in accordance with the conditions of his
service prescribed under such law.”

RES JUDICATA AND ARTICLE 32

The rule of res judicata is a rule of public policy that a finality should be granted to binding
decisions of court of competent jurisdiction and that parties to the litigation should not be
vexed with the same litigation alone.

Where the matter has been heard and finally decided by the High Court under Article 226, the
writ under Article 32 on the same grounds will be barred by the rule of res judicata. For res
judicata to apply, the petition under Article 226 must be dismissed on merits.

The case on this point which laid down the applicability of res judicata to writ proceedings is
Daryao v. State of UP8.

INDEPENDENCE OF JUDICIARY

The independence and impartiality of the judiciary is an important pillar of a democracy. An
independent judiciary is a part of the ‘basic structure’ of the Constitution and indispensible
for upholding rule of law in a democracy. There are several provisions in the Constitution
which ensure independence of judiciary-

Appointment
Judges of the Supreme Court and the High Courts are appointed by the President only
after consultation with the Chief Justice of India.
In case of a Judge of the High Court, the President also consults the Governor of the
State and the Chief Justice of the concerned High Court.
Transfer
For deciding about the transfer of High Court Judges, the President is required to
consult the Chief Justice of India.
Security of Tenure
Security of tenure is very important to ensure independence and impartiality of the
Judges as it is imperative that they should not be blackmailed to give favourable
verdicts in lieu of security of tenure.
A Judge of the Supreme Court or the High Court can only be removed for proved
misbehaviour or incapacity through the procedure laid down under Article 124 and
218 of the Constitution to ensure fair procedure.
A Judge can only be removed by a President’s order passed after an address in each
House of Parliament.
Such address must be supported by a majority of the total membership of that House
and by a majority of not less than two-thirds of members present and voting. It must
be presented to the President in the same session.
Conditions of service
The salary, privileges, rights and allowances of judges cannot be altered to their
disadvantage during their service period.


8 AIR 1961 SC 1457.

They are also not subject to vote of legislature under Articles 125 and 221 of the
Constitution.
No discussion in legislature can take place on the conduct of the Judges.
Administrative Power
The administration and recruitment of the staff is placed in the hands of the Supreme
Court and the High Courts under Articles 146 and 229 of the Constitution
respectively.
Article 235 provides the High Courts the power of administration over subordinate
courts.
Power to punish for its contempt
The Supreme Court and the High Courts have the power to punish for their contempt
under Articles 129 and 215 of the Constitution respectively.
Article 138 of the Constitution
Under Article 138, the Parliament can extend the jurisdiction and powers of the
Supreme Court. However, the Parliament cannot curtail the jurisdiction and powers of
the Supreme Court.
Separation of judiciary from executive
The State should take steps to separate the judiciary from the executive for the smooth
functioning of both the organs.
Prohibition on practice after retirement
There are some restrictions placed on the Judges of the Supreme Court and the High
Courts in carrying out their practice after their retirement to ensure independence and
impartiality of the Judiciary. It also helps the Judiciary stay neutral and unaffected
from unnecessary influence.

WRIT JURISDICTION OF SUPREME COURT AND HIGH COURT

A writ is a device for protection of rights of citizens against any encroachment by the
governmental authority.

Some pointers about writs and writ jurisdiction are-

Writs originated in Britain.

In Britain, the writs were King’s or Queen’s prerogative writs and were commands to
the judicial tribunals or other bodies to do or not to do something.
Writs carried the authority of the Crown and therefore sought obedience.
In India, the power to issue writs has been vested in the Supreme Court and the High
Courts.
Writs are a speedy remedy and are made available without going into many
technicalities.
It is an extraordinary remedy which can be expected in special circumstances.
The Supreme Court can issue writs for the protection of Fundamental Rights,
whereas, the High Courts can issue writs for the protection of fundamental as well as
statutory and common law rights.
A writ is a discretionary remedy and the High Court can refuse it on some grounds
such as laches, alternate remedy available etc.

The five well-known writs are-

1. Habeas Corpus

-a demand to produce the body

-issuance of this writ means an order to the detaining authority or person to physically present
before the Court the detained person and show the cause of detention.

-The Courts can also issue it against private individuals illegally or arbitrarily detaining any
other person.

-Writ of Habeas corpus can be filed by any person on behalf of the person detained or by the
detained person himself.

2. Mandamus

-It is a command to act lawfully and to desist from perpetrating an unlawful act.

-A writ of mandamus can be sought to direct the other person to perform its legal duty.

-Mandamus may lie against any authority, officers, governments or even judicial bodies that
fail or refuse to perform a public duty and discharge a legal obligation.

-Mandamus is a judicial remedy in the form of “an order to do or to forbear from doing some
specific act” which that agency is obliged to do or refrain from doing under the law.

3. Certiorari
-It is a latin word.
-Certiorari literally means ‘to inform’.
-Certiorari may be defined as a judicial order operating in personam.
-It can be issued against constitutional bodies, statutory bodies, non-statutory bodies and
private bodies and persons.
This writ is corrective in nature.
-Grounds for the issue of certiorari are-
1) lack of jurisdiction
2) excess of jurisdiction
3) abuse of jurisdiction
4) violation of principles of natural justice
5) error of law apparent on the face of the record
-Certiorari is issued to quash the proceedings.

4. Prohibition
-Prohibition is a judicial order to the agencies from continuing their proceedings in excess or
abuse of their jurisdiction or in violation of the principles of natural justice or in
contravention of the law of the land.
-It is a ‘writ of right’.
-Prohibition is issued while administrative process is in motion to prevent it from proceeding
further.

5. Quo-warranto

-It literally means ‘with what authority or warrant’.
-The writ may be sought to seek clarification in regard to a claim of a person to hold a
public office.
CURATIVE PETITION
Supreme Court has developed a concept of curative petition in the case of Rupa Hurra v.
Ashok Hurra9. The case was decided by a 5-judge Constitution bench which held that
although a writ petition under Article 32 against a final judgement of the SC after
disposal of review petition under Article 137 is not maintainable, yet, the Court can, in
rarest of rare cases, reconsider its final judgement to prevent abuse of process of court to
cure a gross miscarriage of justice.


9 AIR 2002 SC 1771.