SWAYAM COURSE ON INDIAN JUDICIAL SYSTEM: LEGAL AID

AND ENVIRONMENTAL PROTECTION

COURSE CO-ORDINATOR, : Prof. (Dr.) G. B. REDDY

SUBJECT EXPERT & AUTHOR Professor of Law, University College of Law,
Osmania University, Hyderabad.
TEACHING ASSISTANT : Dr. S.B. Md. IRFAN ALI ABBAS
Visiting Faculty, University College of Law
Osmania University, Hyderabad.
_________________________________________________________________________________________________________________________

LESSON-3: JUDICIAL SYSTEM OF INDIA AND SUPREME COURT OF INDIA

Introduction

This lesson shall discuss about the Judicial System in India, constitutional
perspectives with special reference to the Supreme Court of India. The Judicial System of
any country normally consists of the Courts, the State, the litigants and in the case of
Criminal Justice, the Correctional Institutions.

Indian Judiciary under the Constitution

Before independence, and before the commencement of Constitution of India

1950, our judicial system was little different and it was influenced by the practices of the
English. But when the Constitution of India came into force on 26th January 1950, a new
system, in fact a modified system of judiciary and justice delivery has been established in
our country to ensure that justice is secured for all those in need of it.

Normally, we know that there are two types of judicial systems. One is
Inquisitorial System and the other one is Adversarial System. The uniqueness of Indian
judiciary is that it follows mostly the Adversarial System but on certain occasions it also
follows Inquisitorial System. And When we look at the Constitutional perspectives, we
will find that our Constitution recognizes two kinds of judiciary, namely the Higher
Judiciary and the Subordinate Judiciary.

The Higher Judiciary consists of the Supreme Court of India and the High Courts
established in the states. The Subordinate Judiciary also called the lower judiciary
consists of the various courts right from the level of districts down ward. It can be
Criminal Courts or Civil Courts or even the Special Courts.

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Higher Judiciary in India

Coming to the Higher Judiciary in India, the Supreme Court is the Apex Court and,
in each State, we also have the High Courts under Articles 214 to 237 of the Constitution
of India. It is interesting to know that many of the High Courts were established in India
much before the Supreme Court was established. In fact, High Courts came into existence
under the Indian High Courts Act of 1861 and some of the leading High Courts in India,
like the Bombay Court, the Madras High Court, the Calcutta High Court, and the Allahabad
High Court etc., were established much before 1950.

Be that as it may, coming to the Supreme Court of India, it is a very unique judicial
body all over the world, which has number of innovative features in terms of the
establishment, the composition, the role played and different jurisdictions exercised by
the Supreme Court. The primary objective of this lesson is to analyze the aforementioned
aspects for the benefit of the viewers. When dealing with the Supreme Court of India, first
and foremost it is necessary to discuss its establishment.

Supreme Court of India

The Supreme Court of India was established in 1950 after the commencement of
the Constitution of India. But its predecessor, namely the Federal Court of India was in
existence from the year 1937 till 1950. And this Federal Court was the highest Court
established under the Government of India Act 1935. The same Federal Court of India
became the Supreme Court of India. The Article 124 of Constitution of India deals with
the establishment of Supreme Court, and the Supreme Court originally consisted of 7
Judges which number was increased to 11 initially, thereafter to 13, again to 25, and to
31 in 2017, and right now there are 32 judges including the Chief Justice of India.

Further, Article 124 of the Constitution also deals with the appointment of judges
of the Supreme Court including the Chief Justice of India. The Judges are appointed by the
President of India in consultation with the Chief Justice of India and other senior judges
of Supreme Court. Before 1993, the so-called ‘consultation’ was only in the nature of
consultation with the Chief Justice of India and also the other senior Judges of the

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Supreme Court as recognized by various judgments starting from S.P Gupta v. Union of
India 1 decided in the year 1982. In this case, the Supreme Court held that the expression
‘consultation’ occurring under Article 124, means only consultation and not concurrence.
In other words, the opinion of the Chief Justice of India and other senior Judges was not
binding on the President of India, as far as the appointment of Judges was concerned.

However, the things changed in the year 1993 in the Second Judge’s case, namely
the Supreme Court Advocates on Record Association v. Union of India 2 decided in 1993. The
Supreme Court for the first time brought into existence a system known as the Collegium
System, and the Supreme Court clarified that it shall be mandatory for the President of
India to consult Chief Justice of India and three senior most Judges of the Supreme Court
in the matter of appointment of Supreme Court Judges and also the High Court Judges. It
was also further clarified that the opinion of the Collegium would be binding on the
President of India. In a way, this particular power though not contemplated by the
framers of the Constitution is a self-assumed power in the name of independence of
judiciary.

When a few doubts were expressed as to the appointment of the Chief Justice of
India and the possibility of opinion of the Collegiums being split in to two equal halves, in
the year 1998, a presidential reference was made in Re Special Reference No. 1 of 19983
for the advisory opinion of the Supreme Court, which clarified that the Collegium would
mean Chief Justice of India and four senior most Judges. It also clarified that the senior
most judge of the Supreme Court would become the Chief Justice of India and that in case
of any difference of opinion as regards the appointment of Supreme Court Judges and
others the majority opinion of the collegium would be binding on the President.

In a way, this Judgment cemented the position of the Supreme Court, that of
predominant position with regard to appointment of the Supreme Court and High Courts’
Judges as compared to the executive power of the State. And in the year 2015, again an
attempt was made by the Government of India through the Parliament to take back the
primacy of the Executive in appointment of Supreme Court and High Court judges by

1
AIR 1982 SC 149
2
1993 (4) SCC 441
3
1998 (7) SCC 739

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amending the Constitution. The 99th Constitutional Amendment and the enactment of the
National Judicial Appointments Commission Act in the same year 2014 4, proposed that it
would be the duty of new Judicial Commission to appoint, rather to recommend the
appointment of Judges of Supreme Court and High Courts and it wanted to discontinue
the primacy of the Collegium system. This was once again challenged by the Supreme
Court Advocates on Record Association 5 and the five-judges Bench of the Supreme Court
by a majority of 4:16 declared both the 99th Constitutional Amendment, 2014 as well as
The National Judicial Appointments Commission Act, 2014 7 as unconstitutional on the
primary ground that the same would be affecting the independence of judiciary which is
a basic feature of the Constitution. In other words, the primacy of the Supreme Court’s
Collegium has been maintained and restored and the same is continuing even today. This
is as far as the appointments of judges of the Supreme Court are concerned.

When it comes to the role of the Supreme Court of India, it is pertinent to note that
it plays different roles under different circumstances. For instance, it plays the role of
guardian of Fundamental Rights under Article 32. It plays the role of an Umpire in
Settlement of Federal Disputes under Article 131. The judgment or the law declared by
the Supreme Court shall be binding on all the courts within the territory of India under
Article 141 which makes it the final interpreter of the Constitution as well as law. Under
Article 143, the Supreme Court may advise the President of India on any Question of Fact
or Question of Law referred to it which involves any questions of constitutional
importance. Therefore, the Supreme Court plays multiple roles as far as the judicial
functions are concerned.

Jurisdiction of Supreme Court

The Supreme Court of India exercises the following different kinds of jurisdictions:

(a) Court of Record

First, the Supreme Court is a Court of Record. Under Article 129, it is declared that
the Supreme Court shall be a court of record which means that the court has the power

4
Both came into force with effect from 13-04-2015.
5
Supreme Court Advocates on Record Association v. Union of India, AIR 2016 SC 117
6
Justice Jagdish Singh Khehar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel,
gave the majority opinion, and Justice J. Chelameswar, gave the dissenting opinion.
7
Act 40 of 2014, came into force with effect from 13-04-2015.

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to punish anyone for its contempt and further that it can determine its own jurisdiction.
It also means that the decision of the Supreme Court will become the part of the record
and they will be binding on the small benches and also the subordinate courts including
the High Courts as authoritative precedence. By exercising its power under Article 129,
the Supreme Court has punished number of contemnors who tried to lower its image
either by way of various utterances or even publications.

(b) Original Jurisdiction

The second important kind of jurisdiction exercised by the Supreme Court is

original jurisdiction. Here there are two provisions of the Constitution which confer the
original jurisdiction on the Supreme court. First Article 32: The last fundamental right
guaranteed to all the persons in India is the right to constitutional remedies guaranteed
by Articles 32 to 35 of the Constitution. Article 32 categorically declares that any person
whose fundamental rights are violated may approach the Supreme Court by filing a writ
petition and claim appropriate relief. Under Article 32, therefore, the Supreme Court is
designated as the guardian of Fundamental Rights.

The scores of landmark judgments delivered by the Supreme Court, which

protected the fundamental rights and human rights of various sections of citizens in India
are solely because of this original jurisdiction exercised by the Supreme Court. In fact, the
Public Interest litigation, popularly known as PIL, is the result of exercising this Original
Jurisdiction under Article 32.

Another kind of jurisdiction exercised by the Supreme Court is under Article 131
of the Constitution. This Article says that if there is a dispute between the Union and
States, between one state and other state or between union and some states on one hand
and other states on the other hand, the Supreme Court may exercise Original Jurisdiction.
The affected party may approach the court by filing a suit. This jurisdiction however can
be excluded in the case of Inter-State Water Disputes under Article 262, Clause 2. By
exercising this jurisdiction, the Court has resolved number of disputes between Union
and States and the States inter se.

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(c) Appellate Jurisdiction

The third kind of jurisdiction exercised by the jurisdiction by the Supreme Court
is Appellate Jurisdiction. This Appellate Jurisdiction can be exercised in three kinds of
disputes: civil, criminal and constitutional. Normally, whenever there is decision given by
the High Court and in the High Court either on the request of the parties or on its own, to
certify that the matter involves a question of constitutional importance to be decided by
the Supreme Court, it gives a certificate under Article 134-A of the Constitution. If such a
certificate is given, the aggrieved party may approach the Supreme Court as a matter of
right by filing an appeal from either the civil judgment or the judgment in criminal matter
or even constitutional matters. The relevant Articles are Articles 132, 133 and 134.

(d) Special Leave Petition

In case the High Court refuses to give such a certificate, then yet another kind of
appellate jurisdiction can be exercised by the Supreme Court. It is called as ‘Special Leave
Petition’ under Article 136 of the Constitution. This Special Leave can be prayed for
against any judgment of either the High Court or any tribunal in India, if in the opinion of
the petitioner, the decision was given in violation of principles of natural justice or
fundamental rights or on the ground of jurisdictional errors so on and so forth. It is the
absolute discretion of the Supreme Court either to give permission to file an appeal or to
reject. If the permission is given, then the appeal will be treated as regular appeal from
that time onwards and it is decided accordingly.

The other kind of jurisdiction is Review Jurisdiction. The Supreme Court exercises
the power to review its own judgments under the Article 137 of the Constitution. If the
court feels that certain important issues at the facts are not brought before it when it
decided the matter or certain new developments have taken place in such cases, to
prevent the miscarriage of justice Supreme Court can review its own decision.

(e) Advisory Jurisdiction

Apart from the Review Jurisdiction, there is another unique jurisdiction vested in
the Supreme Court namely, the Advisory Jurisdiction. Under Article 143 of the

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Constitution of India, the President may refer any question of fact or any question of law
which in his opinion involves a question of general importance or which requires
constitutional Interpretation by the Supreme Court. He may refer the matter to the
Supreme Court. The Supreme Court has the discretion either to entertain such reference
or even to reject it. When it entertains the reference, the matter has to be heard by a
Constitutional Bench of five judges and the opinion of the Supreme Court may not be
binding on the President of India that is the Government of India. However, in many
judgments it was held that the advisory opinion may have the value of authoritative
precedent at least in respect of the lower courts.

(f) Curative Petition

Yet another jurisdiction exercised by the Supreme Court is in fact a self-assumed

Jurisdiction. The jurisdiction is to entertain Curative Petitions under Article 142 of the
Constitution of India which is a post-2000 phenomenon. In Rupa Ashok Hurra v. Ashok
Hurra 8 the Supreme Court recognized that in order to do complete justice; to order a
direction given by the Court; and also to prevent the miscarriage of justice; the Supreme
Court can entertain a second review, that is, when the first review is already exhausted a
second review can be entertained by the court, purely at its discretion, subject to certain
conditions. This jurisdiction is extraordinary for the simple reason that there is no
mention of it in the Constitution and the Second Review is unheard of as far as the
constitutional dynamics are concerned. It is only for the purpose of the last resort, that is
after the exhaustion of all the legal and judicial remedies that the affected party may
approach the court in the form of curative petition.

(g) Rule-Making Jurisdiction

Under the Article 145 of the Constitution, the Supreme Court has the power to
make number of rules. This is called Rule-making Power or Rule-making Jurisdiction.
Whether it relates to fundamental rights or in relation to Public Interest Litigation, or
appeals, the Supreme Court has been making number of rules exercising its power under
Article 145. Therefore, it can be mentioned that the Supreme Court has the broadest

8
2002 (4) SCC 388

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jurisdiction in the world as compared to any other apex courts whether it is the Federal
Supreme Court of USA or High Court of Australia, Supreme Court of Canada, or House of
Lords, England, even the Supreme Court of England established recently. The Supreme
Court has been maintaining its unique position since 1950 by catering to the judicial
needs of all the citizens and the State alike.

Conclusion

The Supreme Court of India has acquitted itself very well to meet the objectives
under the Constitution and at the same time, the challenges posed by modern
developments. It has established itself as the final interpreter of the Constitution. It has
also exhibited judicial activism when the State’s political organs, namely the Legislature
and Executive fail to discharge their constitutional obligations.

Sometimes, the court has also indulged in judicial policy making in the absence of
any necessary legislation by the parliamentary state legislatures. The best example is in
the case of Visakha v. Rajasthan 9 in 1997, wherein the Supreme Court issued number of
guidelines relating to the prevention of sexual harassment of working women in India. It
was only in the year 2013 that the Parliament enacted a law 10 to deal with such an issue.

The Supreme Court has also applied speed breakers on the misuse of the Article
356 with regard to imposition of President Rule by way of its judgment in S.R. Bommai v.
Union of India 11. The Supreme Court has effectively amended the Constitution though not
in technical sense in 1973, in the famous fundamental rights case, that is Kesavananda
Bharati v. State of Kerala 12 by imposing restrictions on the amending power of the
Parliament in the form of Basic Structure theory and today even brute majority secured
by any political party in the Parliament or in majority of the States cannot make any
changes as far as these basic features of the Constitution are concerned.

9
AIR 1997 SC 3011
10
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
11
AIR 1994 SC 1918
12
AIR 1973 SC 1461

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 The Supreme Court is the most respected institution in the country today. If we
look at two important judgments in August 2017, one in the case of triple talaq in the writ
petition filed by Shayara Bano against Union of India 13 and the other in the case of Right
to Privacy, that is in the writ petition filed by K.S. Puttaswamy against Union of India 14.
Upon an analysis of both the judgments, it can be certainly concluded that the Supreme
Court has rendered landmark judgments, which would help on one hand, divorced
Muslim women by way of triple talaq which is not traditionally accepted even by Islam in
the case of Shayara Bano and by declaring that Right to Privacy as a Fundamental Right
under the Article 21 of the Constitution, it has helped in protecting individual autonomy.

One can explain such judgments in hundreds. The fact remains that in the Indian
Judicial System, the Supreme Court has become a sentinel on the qui vive 15 and the
position of the Indian Supreme Court remains unique throughout the world.

*******

13
Shayara Bano v. Union of India and Ors., 2017 (9) SCC 1
14
Justice K.S. Puttaswamy v. Union of India, 2017 (10) SCC 1
15
watching over as an alert or vigilant guard.