NOTES

INDIAN CONSTITUTION AND JUDICIARY

Introduction-

Chapter IV under Part V of the constitution of India deals with the provisions
relating to the Indian judiciary. The Articles dealing with constitution and
jurisdiction of the Hon’ble Supreme Court of India are stated in detail from
Articles 124-147. Unlike the other two branches, executive and legislature, in
India, judiciary is integrated. This means that even though there may be High
Courts in states, the law declared by the Hon’ble Supreme Court shall be binding
on all the lower courts within the territory of India (Article 141) as per the doctrine
of precedents. Now let us discuss in the details of each Article dealing with the
union judiciary1.

The Supreme Court of India-

Clause (1) of Art. 124 states that there shall be a Supreme Court of India. In
Supreme Court, there is one chief judge known as ‘The Chief Justice of India ’and
twenty-five other Judges. The Indian judiciary have been described as the
“Protectors” and “Guardians” of the individual’s rights and liberties and the
“Conscience-Keepers of our Constitution” as there are numerous instances where
the judiciary uphold the individual rights, liberties. The Hon’ble Supreme Court is
the apex court and the final court of appeal under the constitution of India.

1
[Link]
Appointment of judges in UK and USA-

In Great Britain the judges are appointed by the Crown which prior to 2005 meant
the executive of the day, without any restrictions. The power of executive was
curtailed in March 2005, by the Constitutional Reform Act 2005 which established
a Judicial Appointments commission for England and Wales and a Judicial
Appointments and Conduct Ombudsman. In U.S.A on the other hand, the President
appoints the Supreme Court judge with the consent of senate.

Appointment of judges in India-

The appointment of judges has become a very crucial and controversial topic in
India. Many critics criticized the procedure for appointment of judges is not clear.
Therefore recently, legislature introduced National Judicial Appointment
Commission bill which the Hon’ble Supreme Court declared it as unconstitutional
.Before moving further, we will discuss about the constitutional provisions
regarding appointment of judges.

Art.124 (2) of the constitution of India prescribes the procedure for appointment
of Judges to the Hon’ble Supreme Court. As per this provision, every judge of the
Hon’ble Supreme Court is appointed by the president of India by warrant under his
hand and seal. However, before making the appointment, the president is obliged
to consult such of the judges of the Hon’ble Supreme Court and of the High
Courts as he deems necessary. Further, in the case of appointment of a Judge other
than the Chief Justice of India, it shall be done by the president of India after
consultation with the chief justice of India. At this stage, two important aspects are
required to be noted. The first one is, although Art.124 (2) gives an impression that
the appointment of a judge is made by the president, but in fact, it is the union
executive that exercises the power. It means, the president makes such the
appointment on the advice of the council of ministers. The second aspect is, the
constitution has provided for consultation with a view to fetter the power of the
executive in making judicial appointments so that the executive would not enjoy
absolute power in making the said appointments as such a power to the executive
may devastate and destroy the prospect of an independent, impartial Judiciary.
Thus, this point can be discussed in the light of second chapter of the doctrine of
separation of powers. This can be one of the best examples of the doctrine of
separation of powers along with checks and balance system, as here no authority
enjoys exclusive power to appoint the judges of higher judiciary and further the
word ‘Consultation’ acts as a check over both the wings i.e. executive as well as
judiciary.

Interpretation of the word “Consultation”-

There was confusion surrounding the consultation process mentioned in the

constitution. The questions were: whether the word ‘consultation’ would have the
meaning “concurrence”? Whether the opinion of chief justice of India should be
given primacy? Or, when there is difference of opinion between chief justice of
India and the president then whose opinion shall prevail? For the time being, the
confusion seems to have been removed in the light of the Hon’ble Supreme Court’s
advisory opinion given in Presidential Reference 2. Now, the chief justice of India’s
sole opinion in relation to the appointment of a Judge is of no consequence. The
word “consultation” means” consultation of plurality of judges”. As stated by
[Link] : “The process of appointment of judges is initiated by the chief
justice of India through a collegiums consisting of himself and four of the senior-

2
AIR 1999 SC 1
most judges of the court. Recommendation of the collegiums is binding on the
president. However, the president may not appoint a person whom for specific
reasons he does not consider suitable for appointment. In such a situation, the
collegiums must reconsider its recommendation. On reconsideration, it may either
drop the name of the person not found suitable by the president or reiterate its
recommendation. In the later case, the president is bound to accept the
recommendation3”.

National Judicial Appointments Commission -

National Judicial Appointments Commission was a bill which was proposed for
the appointment and transfer of judges to the higher judiciary in India. It was
established by passing the Ninety-ninth constitution amendment vide the
Constitution (Ninety-Ninth Amendment) Act, 2014 passed by the Lok Sabha on 13
August 2014 and by the Rajya Sabha on 14 August 2014. Initially, collegium
system was in existence for the appointment of judges which was further replaced
by National Judicial Appointment Commission. Along with the Constitution
Amendment Act, the National Judicial Appointments Commission Act, 2014, was
also passed by the parliament of India to regulate the functions of the National
Judicial Appointments Commission. As per procedure, the National Judicial
Appointment Commission Bill and the Constitutional Amendment Bill, was
ratified by 16 of the state legislatures in India, and subsequently assented by
the president of India on 31 December 2014. The National Judicial Appointment
Commission Act and the Constitutional Amendment Act came into force from 13

3
Constitution of India Revised by [Link] (Tenth Edition), (2004),at p. 413.
April [Link] the validity of this National Judicial Appointment Commission Bill
was challenged before the Hon’ble Supreme Court.

On 16 October 2015, the Hon’ble Supreme Court by 4:1 majority upheld the
collegium system and struck down the National Judicial Appointment Commission
as unconstitutional and thereby declared the 99th Amendment and NJAC Act
unconstitutional .

Qualifications-

The qualifications for a person to be appointed as a judge of the Hon’ble Supreme

Court are provided under Clause (3) of [Link] are as follows:

1) He must be an Indian citizen.

2) He must have been a judge of a High Court for at least five years, or

3) He must have been an advocate of a High Court of at least ten years; or

4) In the opinion of the president, he should be a distinguished jurist.

Apart from the above mentioned qualifications expressly prescribed by the

Constitution, the implied qualifications required are: unimpeachable character and
integrity; impartiality, independence; equanimity; incorruptibility.

Term of office-

As stated under Art.124 (2), a judge of the Hon’ble Supreme court shall hold an
office until he attains the age of sixty-five years. He may resign before the age of
retirement by addressing his letter of resignation to the president.
Removal by impeachment-

As provided under Clause (4) of Art.124, a judge of the Hon’ble Supreme Court
can be removed from office before he attains the age of sixty five years on grounds
of proved misbehavior or incapacity. What amounts to ‘Misbehavior’ or
‘Incapacity’ is not explained under Art.124 (4). Further, for separating these two
terminologies, the conjunction ‘or’ is used and not the ‘and’, hence a judge can be
removed on either of the grounds and there is no need to establish both
“Misbehaviour” and “Incapacity”. ‘Misbehaviour’ may be “misconduct”. For
example, use of public funds for private purposes. ‘Incapacity’ may be either
physical or mental incapacity. Further, a sitting Judge can be removed only when
his ‘misbehaviour’ or ‘incapacity’ is “proved” and not otherwise. So, mere
apprehension, allegation, or suspicion are not useful. Such ‘Misbehavior’ or
‘Incapacity’ has to be inquired and investigated, established and proved beyond the
doubt. In addition, the principle of natural Justice should also be followed so
delinquent judge has to be apprised of the charge and be heard.

So, a summary or an informal procedure adopted by the executive for the removal
of a judge is unacceptable because it destroys the very concept of independence of
the judiciary. Therefore, the democratic constitution like Indian constitution
prescribes a detailed and a cumbersome procedure for the impeachment of judges
who hold such high constitutional offices. Under our constitution, a judge of the
Hon’ble Supreme Court can be removed from his office by an order of the
president. Such an order can be passed only after an address by each house of
parliament for the removal of the judge on the ground of proved ‘misbehaviour’ or
‘incapacity’ is presented to the president. Such address must be supported by a
majority of the total membership of the house and by a majority of not less than
two-thirds of the members present and voting. What is important to be mentioned
here is that such address, as mentioned above, can be presented only after
misbehaviour or incapacity on the part of the judge concerned is proved. Now,
what is the procedure required to be followed in order to investigate and establish
the alleged ‘misbehaviour’ or ‘incapacity’? Who has to carry such investigation?
Clause (5) of Art.124 provides that 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. In pursuance to the above provision,
parliament has enacted the Judges (Inquiry) Act, 1968 which provides an elaborate
procedure for investigating and establishing ‘misbehaviour’ or ‘incapacity’ of the
judge by a committee of inquiry to be constituted by the speaker of Lok Sabha or
Chairman of Rajya Sabha. The committee has to frame definite charges and the
judge concerned should be given a reasonable opportunity to present his defense. If
the committee holds the judge guilty, then the house takes up the motion for
consideration. After the motion is adopted as stipulated under clause (4) of
Art.124 then address shall be presented to the president for the removal of the
judge.

Jurisdiction, Powers and functions of the Hon’ble Supreme Court-

The jurisdiction of the Hon’ble Supreme Court under our constitution is vast. It is
the apex court of appeal in respect of all the matters. What follows would give us
an idea about the extensive jurisdiction our apex court enjoys as well as the powers
conferred upon the court under our constitution.

a) Power to Enforce Fundamental Rights (Art.32):

Fundamental rights are enumerated in Part III of our constitution. There are
different kinds of fundamental rights like ‘Right to Equality’, religion, caste ‘Right
not to be discriminated on the grounds of race, , sex or place of birth, ‘ Freedom of
Speech and Expression,’ Equality of opportunity in matters of public employment
‘Freedom of Assembly,’ Freedom of Association.’ In case of any violation of these
rights they can look up to some authority for their enforcement. At this juncture,
Art.32 comes into play and acquires significance. [Link] has remarked that
“Art.32 is the soul of the constitution and the very heart of it” and without this
article our constitution would be a nullity.”

Art. 32 provide remedy for the violation of fundamental rights enshrined in Part.
III. Unlike other rights, “It is remedial in nature and not substantive 4”. Art.32 (1)
provides the right to move to the Hon’ble Supreme Court through appropriate
proceedings for the enforcement of the rights conferred by this part. Moreover it is
important to note that the right to move the Hon’ble Supreme Court for the
enforcement of the fundamental Rights itself is a fundamental right. Thus, the
Hon’ble Supreme Court is the ultimate protector and guarantor of the fundamental
rights and a sole duty is casted upon this court for the protection of the citizens’
fundamental rights “zealously and vigilantly”. Art.32 (2) empowers the Hon’ble
Supreme Court to issue writs like the writs of Habeas corpus, Mandamus, Quo
warranto, Certiorari and Prohibition for the enforcement of the fundamental rights.
The Court’s power is not only confined to the issuance writs but also issuance of
directions or orders which appear to the court to be proper for the enforcement of
the fundamental rights. The court’s power is preventive, in the sense, preventing
violations of fundamental rights, as well as remedial. In addition, the court can
award compensation and exemplary costs when it is found that the state has
violated the fundamental right to life and personal liberty guaranteed under Art.21.

4
Shukla, Constitution of India, p.277
b) Supreme Court’s power to commit a person for contempt (Art.129)-

Art.129 declares that the Hon’ble Supreme Court is a court of record and has all
the power of such a court along with the power to punish for contempt of itself. A
court of record has-

1) Power to determine its own jurisdiction and

2) It has power to punish for its contempt.

A Court is called as ‘Court of Record’ where its acts and judicial proceedings are
enrolled for a perpetual memorial and testimony and has got the power to fine and
imprison for contempt of [Link] other words, a Court of Record is a court of
which the records are of evidentiary value and cannot be questioned when
produced before any court. Power to punish for contempt is conferred in order to
uphold the majesty and dignity of the court and to prevent scandalisation of the
judiciary. Further to ensure that the stream of justice remains unsullied, to bar
interference in the administration of justice6. The Hon’ble Supreme Court’s power
to punish for it’s contempt extends to all courts and tribunals subordinate to it. For
the exercise of this power, no one has to apprise the court. The court may act suo
moto. Fair and objective criticism on the courts would not amount to it’s contempt.
National Commission has observed:”Judicial decisions have been interpreted to
mean that under the law that now prevails even truth cannot be pleaded as a
defense to a charge of contempt of court7. The Commission has recommended that
“the law on contempt of court requires an appropriate change”.

5
Wharton’s Law Lexicon, 14th Edition, p.275
6
for more details, see Contempt of Court Act,1971
7
This is not a satisfactory state of law”---at, p.140.
c) Supreme courts power cannot be controlled by statute-

Entry77, List I states that,” Constitution, organization, jurisdiction and powers of

the Hon’ble supreme court (including contempt of such court),and fees taken
therein; persons entitled to practice before the court. Explaining the power of
parliament to enact the law with regard to contempt of the Hon’ble Supreme Court
under Entry77, the court has observed that such a law may prescribe the procedure
to be followed and it may also prescribe the maximum punishment which could be
awarded and it may provide for appeal and such other matters. But parliament has
no legislative competence ‘to abridge or extinguish the jurisdiction or power
conferred on this court under Art 129 of the constitution’

d) Supreme Court’s original and exclusive jurisdiction under Art.131-

The Hon’ble Supreme Court has got original and exclusive jurisdiction in any
dispute i) between one or more States and the government of India or ii) between
one or more states on one side and the government of India and any State on the
other side; or iii) between two or more states, if the dispute relates with a question
of law or fact on which the existence or extent of a legal right depends. A court is
considered to have original jurisdiction when it has authority to hear and determine
a case at the first instance. The court has got exclusive jurisdiction when no other
court has the authority to hear and decide the case. What is necessary to consider
under Art.131 is that the existence or extent of a legal right must be in issue in the
dispute between the parties, that is, between the government of India and one or
more states, etc. The theory underlying Art.131 is that if there be a dispute between
two or more states and it is not proper that the dispute be agitated before the court
of one of the disputants i.e disputing parties.
e) Appellate jurisdiction of the Hon’ble Supreme Court -

The Hon’ble Supreme Court is the final authority on questions involving the
interpretation of the constitution. Different opinions by different High Courts on
constitutional questions creates confusion among the lawyers and citizens,
therefore Art.132 provides that an appeal shall lie to the Hon’ble Supreme Court
from any judgment, decree or final order of a High Court, whether in civil or
criminal or other proceeding, if the Hon’ble High Court certifies that the case
involves a substantial question of law as to the interpretation of the constitution.

f) Supreme Court’s appellate jurisdiction in civil matters –

The Hon’ble Supreme Court has got power to entertain appeals from the
judgment, decree or final order of a High Court in civil proceedings. If a person
seeks relief in a civil court when his civil rights are infringed by another person or
by the state then proceedings are considered to be civil in nature. The civil court
may declare that the plaintiff’s claim is justified and he is entitled to relief at the
time of the conclusion of the proceedings. In order to invoke the Hon’ble Supreme
Court’s appellate Jurisdiction, the following conditions are important to be
fulfilled: i) Appeal must be against a judgment, decree or final order of Hon’ble
High Court in a civil proceeding. ii) The Hon’ble High Court must have certified
that the case involves a substantial question of law of general importance and
should be of the opinion that the substantial question of law needs to be decided by
the Hon’ble Apex Court. It can be said that the judgment, decree or final order all
seem to convey the same meaning i.e. the civil court’s pronouncement that finally
or conclusively determines the rights of the parties in a controversy or suit. Under
Art.133, no appeal can be made against the judgment, decree or final order of a
single judge of Hon’ble High Court unless parliament enacts a law to remove this
restriction.

g) Appeals to Supreme Court in criminal matters-

The Hon’ble Supreme Court has got the criminal appellate Jurisdiction. It can be
invoked against the judgment, final order or sentence of Hon’ble High Court in a
criminal proceeding when the Hon’ble High Court has certified that the case
should be referred for appeal to the Hon’ble Supreme Court. The Hon’ble High
Court grants certificate when difficult questions of law or principles are involved
in the case. Ordinarily, the Hon’ble High Court’s certificate would show that the
case involves a substantial question of law or principle. The Hon’ble High Court
has got discretion to grant or not grant the certificate under Art.134(1) (c) but the
discretion should be judicial one which has to be judicially exercised in the light of
well-established principles. The Hon’ble Supreme Court invokes it’s criminal
appellate jurisdiction in the following circumstances: a) When the Hon’ble High
Court reversed the decision of acquittal of the accused by the Sessions Court and
sentenced him to death; or b) When the Hon’ble High Court withdraws for trial
before itself any case from any court subordinate to it and has convicted the
accused person and sentenced him to death. Parliament may by enacting any law
enlarge the appellate criminal Jurisdiction of the Hon’ble Supreme Court. In 1970,
parliament has enacted a law which enables an accused to appeal to the Hon’ble
Supreme Court when the Hon’ble High Court “has not sentenced him to death
under Art.134(2)(6)(1) but has sentenced him to imprisonment for life or for a
period of not less than ten years. The Hon’ble Supreme Court (Enlargement of
Criminal Appellate Jurisdiction) Act,1970 substituted the words underlined above
for the words “to death” g) Special Leave to appeal to the Hon’ble Supreme Court
under (Art.136): Under Art.136, the Hon’ble Supreme Court may, with 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. Under Articles 132 to 135, the Hon’ble Supreme Court’s
appellate Jurisdiction can be ignited by fulfilling the conditions mentioned there-
under. But as per Article 136, the Hon’ble Supreme Court’s permission or leave is
necessary. Such permission or leave is granted by the Court only with its
discretion. Further, appeal may be allowed against determination, sentence or any
order either final or interim order of a court, which need not be a High Court or
tribunal (Industrial Tribunal, Income Tax Tribunal) Hon’ble Supreme Court may
be inclined to grant special leave in situations where a party suffered gross
injustice on account of violation of the principle of natural justice or where the
tribunal’s order or determination is wrong or absurd as to shock the court’s
conscience. Since Art.136 mentions about decrees, judgments, orders, sentence,
determinations of courts or tribunals, purely executive or administrative order or
direction cannot be the subject-matter of appeal and the court would be disinclined
to accord leave. The court is to be convinced that there are special situations which
warrant its intervention. For example, when the tribunal has been improperly
constituted; where the procedure followed is unfair, unjust, unreasonable; when the
tribunal has assumed a jurisdiction which in law it does not enjoy. The Hon’ble
Supreme Court has no power or Jurisdiction to grant special leave against the
judgment, sentence, decree, order ,determination, passed or made by any court or
tribunal functioning under any law relating to the armed forces.

h) Power of Supreme Court’s to review its own judgments, orders-

The general proposition in respect of judicial decision-making, is that there should

be finality attached to court’s judgments and that there should be an end to law
suits. Such a rigid adherence to this proposition may result in gross and manifest
injustice. A court should not be allowed to be a court of injustice. If, in a case, the
court finds that a particular provision of the Act ignored notice or evidence which
would have tilted the scales of justice and was not available at the time of its
pronouncement, then, it may prefer to review its earlier judgment at the instance of
the aggrieved. Art.137 confers the Hon’ble Supreme Court to review its judgments.
Court’s review is permissible on the following grounds; i) Discovery of important
and new matters of evidence; ii) Error or mistake of law apparent on the face of the
record; iii) If there be any other justifiable, sufficient reason.

i) Supreme Court’s Power to make an order necessary for doing complete

Justice in any case-

This is a very important power to deal democratic polity. Prof [Link] has
observed: “The Supreme Court’s power under Art.142 is a residuary power,
supplementary and complementary to the powers specifically conferred on the
court which it may exercise whenever it is just and equitable to do so and in
particular to ensure the observance of due process of law, to do complete justice
according to law.8” The power conferred on the Hon’ble Supreme Court under
Art.142 is exercised by the court to order for the payment of compensation to a
person who had been illegally detained, to order payment of interim compensation
to the victim of rape ,etc.9

j) Advisory jurisdiction –

Normally, function of the court is to decide the controversy presented to it and

render its justice. Again, courts do not take suo moto notice of such prevalent
controversy and offer the opinions. The court’s jurisdiction is to be invoked by the
aggrieved party by appropriate means, But, Art.143 empowers the Hon’ble
8
[Link], p.459. (citing DDAV Skipper Construction Co,(p)Ltd, AIR 1996 SC 2005.
9
For case law citations, see Shukla, Constitution of India. (already cited) p.461.
Supreme Court to render advisory opinion in certain contingencies. Such advisory
opinion of the Hon’ble Supreme Court may be rendered at the instance of the
president of India which may enable parliament to pass appropriate legislation or
to introspect and effect suitable amendments to the existing law. Art.143 empowers
the president to refer to the Hon’ble Supreme court a question of law or fact which
in the opinion of the president is of such nature and such public importance that it
is expedient to seek the opinion of the court on it. It is to be noted that a question
of law which the Hon’ble Supreme Court has already decided in a dispute
presented to it cannot be the matter of a reference by the president for advisory
opinion because the implication would be that the president would be inviting the
Hon’ble apex court to at act as an appellate or reviewing authority over its earlier
decision while seeking its advisory opinion under Art.143. On a presidential
reference for advisory opinion, notice would be to the attorney- general and all
concerned may also be served notices to appear as parties or as interveners. After
hearing, the court reports to the president. The advisory opinion tendered does not
bind the president. Conversely, the Hon’ble Supreme Court may also decline to
express its opinion, specially, where the reference is vague.

k) Elections to the President and vice president

Disputes concerning the elections of president and vice president are decided
exclusively by the Hon’ble Supreme court.

l) Miscellaneous Provisions-

The miscellaneous provisions includes powers like-

a) Transfer of cases-

To facilitate quick disposal of cases, Art 139(1) provides that if cases involving
substantially the same question of law are pending before the Hon’ble Supreme
court and High court or before two or more High courts, the Hon’ble Supreme
court can withdraw the cases from Hon’ble High courts and decide them itself.
Once a common question of law is decided, the cases may be returned to the
Hon’ble High court to decide the individual cases in the light of law so laid down .

b)Federal court’s jurisdiction exercised by the supreme court-

According to Article 135, the Hon’ble Supreme court has jurisdiction and powers
with respect to any matter to which the provisions of Article 134 do not apply ,if
the jurisdiction and powers in relation to that matter were exercisable by the
federal court immediately before the commencement of the constitution under any
law then existing.

c) Power to summon witness-

Subject to law made by parliament in this behalf, the court is empowered to make
as regards the whole of India any order for the purpose of securing the attendance
of any person ,the discovery or production of all documents or the investigation or
punishment of any contempt of itself as provided under Article 142(2) of the
constitution of India.

d) Enforcement of decrees-

Under Article 142(1), any decree passed or order made by the Hon’ble Supreme
Court is enforceable throughout India in such manner as may be prescribed by a
law of parliament or pending the enactment of such a law by the president.
e) All authorities bound by court orders-

All authorities, civil and judicial in India are under obligation to act in the aid of
the court.

f) Court’s rule making power-

The Hon’ble Supreme Court has been given a rule making power for regulating
generally its practice and procedures including such matters as persons practicing
before it, procedure for hearing appeal, conditions for reviewing its judgments,
grant of bail, fees, stay of proceedings etc. But they need to be approved by the
president and are subject to any law made by the parliament

Restrictions on the power of the Hon’ble Supreme Court-

Art 122 of the constitution of India speaks about courts not to inquire into
proceedings of parliament. The provision provides a kind of immunity to the
parliamentary proceedings .This Article runs as under-

(1) The validity of any proceedings in parliament shall not be called in question on
the ground of any alleged irregularity of procedure.

(2) No officer or a member of parliament in whom powers are vested by or under

this constitution for regulating procedure or the conduct of business, or for
maintaining order, in parliament shall be subject to the jurisdiction of any court in
respect of the exercise by him of those powers.

Doctrine of stare decisis-

The doctrine of stare decisis or precedent is the distinguishing characteristics of the

English common law. It envisages that judicial decisions have binding force for the
future. It is not only, however, the whole judgment that is deemed to be so binding.
A judgment is an authoritative only as to that part of it, called ‘Ratio decidendi’,
which is considered to have been necessary for the decision of actual issue between
the litigants.

On the other hand the obiter dicta are the observations made by the judge but
which are not essential for the decision reached. There may be observations upon
the broader aspect of the law relating to the problem arising for decision; they may
be answers to hypothetical questions raised by the judge or the counsel in the
course of the hearing or they may be observations upon social or other questions,
prompted by the facts of the case under constitution.

The doctrine of stare decisis in Britain envisages that the lower courts are bound by
the decision of the higher courts and thus every court in Britain is bound by the
decision of the House of Lords. Indian Judiciary is characterized by a scheme of
hierarchy of the courts, the Hon’ble Supreme court being the apex court and
therefore the doctrine of binding precedent is cardinal feature of Indian legal
system.

The Indian constitution specifically and unequivocally lays down that this
preposition in Article 141 which says that the law declared by the Hon’ble
Supreme Court shall be binding on all the courts within the territory of India. Thus,
all courts are bound to follow the decision of the Hon’ble Supreme Court. The law
declared by the Hon’ble Supreme Court is the law of land and no court or tribunal
and for that matter any other authority can ignore the law stated by the Hon’ble
Supreme Court. The judgments of the Hon’ble Supreme Court constitute a source
of law.

Article 141 mandates every court subordinate to the Hon’ble Supreme Court to
accept the law laid down by the Apex Court. The Hon’ble Supreme Court has
explained the rational underlying Art 141 as follows: In the hierarchical system of
the courts such as exists in India, it is necessary for each lower tier including High
court to accept the loyally the decisions of the higher tiers. The better wisdom of
the court below must yield the higher wisdom of the court of the court above. 10

Hierarchy of courts in India-

We have discussed that one of the salient features of the Indian constitution is
independent judiciary. The distinct feature of our judiciary is that it is a single
unified integrated judicial system for the whole country. A single judiciary
represents a hierarchy of courts. The Hon’ble Supreme Court stands at the top of
this single integrated judicial system with High Courts at the State level. Below the
High Courts, there are several subordinate courts such as the District Courts which
deal with civil cases and the Session Courts which decide criminal cases.

INDIAN JUDICIAL SYSTEM

THE HON’BLE SUPREME COURT OF INDIA

HON’BLE STATE HIGH COURTS

SUBORDINATE COURTS OR LOWER COURTS

10
The Constitutional Law of India by Prof. M.P. Jain
Independence of Indian judiciary-

An independent judiciary is the sine qua non of a vibrant democratic system. Only
an impartial and independent judiciary can stand as a bulwark for the protection of
the rights of the individual and mete out even handed justice without fear and
favor. The judiciary is the protector of the constitution and it may have to strike
down executive, administrative and legislative acts of the centre and the state .For
rule of law to prevail, judicial independence is of prime necessity .Being highest
court in the land it is very necessary that the Hon’ble Supreme Court is allowed to
work in an atmosphere of independence of action and judgment and is insulated
from all kinds of pressure, political or otherwise.

The independence of judiciary is one of the most significant features of the

constitution. Any policy against the independence of judiciary is not only be
against the public policy but would also impinge upon the basic structure of the
constitution. The members of constituent assembly were very much concerned
with the question of independence of judiciary and accordingly made several
provisions to ensure that end.

The concept of separation of powers between three wings and independence of

judiciary have been elevated to the level of basic structure of the constitution and
very heart of the scheme. The court has laid in several decisions with a view to
strengthen not only its independence but that entire judiciary including subordinate
judiciary.

We are going to discuss in detail about the independency of judiciary, its need and
how it is maintained in chapter VIII of this thesis.
The High Court-

In this segment, we will discuss the composition of the Hon’ble High Courts, the
prescribed qualifications for the appointment of judges to the Hon’ble High Courts,
their tenure, procedure prescribed for the removal of judges and the powers and
jurisdiction exercisable by the Hon’ble High Courts. Art.214 declares that for each
state there shall be a High Court. However, parliament may by law establish a
common High Court for two or more states or for two or more states and a union
territory as provided under Art.231. Under Art.230 the constitution provides that
parliament may by law extend the jurisdiction of a High Court or exclude its
jurisdiction from any union territory. Within its territorial jurisdiction, a High
Court may have one or more benches constitution of High Courts as provided
under Art.216. Every High Court shall have a Chief Justice and such number of
judges as the president may from time to time determine. Judicial decisions settled
that the Chief Justices of the High Courts and the Chief Justice of India may
periodically review the strength of the High Courts and in the interest of efficient
administration of Justice may recommend to the president that the strength of the
High Court be increased. The president is required to act expeditiously at such
recommendation, it is the executive, that has to act promptly in reality.

Appointment and conditions of the office of a judge of a High Court

President by warrant under his hand and seal appoints every judge of a High Court.
Before such appointment, the president shall consult with the Hon’ble Chief
Justice of India and the governor of the state. In the case of appointment of a judge
other than the Chief Justice, the president shall consult the Hon’ble Chief Justice of
the High Court. Further, it is to be noted that as regards the appointment of High
Court Judges, the Hon’ble Chief Justice of India has required to consult two
senior-most Judges of the Hon’ble Supreme Court. Hence, the opinion of Chief
Justice of India includes the opinion of a collegiums consisting of himself and two
senior-most Judges of the Hon’ble Supreme Court. But, it is necessary that the
process of appointment of a High Court Judge is to be initiated by the Hon’ble
Chief Justice of the High Court concerned. His sole opinion is of not much
consideration. But, he should take into account the opinions given by two senior-
most Judges of his High Court. The Consultation Process should be in written
form. It means all the opinions of consultees and the one consulting should be in
writing. The appointment of a Judge to the Hon’ble High Court shall be in
conformity with the opinion of the Hon’ble Chief Justice of India .In case of
difference of opinion between the president & Hon’ble Chief Justice of India , the
latter’s opinion shall prevail. As regards the appointment of the Hon’ble Chief
Justice of the High Court should be made on the basis of the all India Seniority of
High Court Judges. But recently the procedure for appointment of judges to the
higher judiciary is under consideration and it has been changed to some extent.

Qualifications-

The qualifications prescribed for the appointment of High Court Judge are-

a) He/She shall be a citizen of India;

b) Must have held a judicial office in our country for at least ten years; or

c) Must have been an advocate of the High Court for at least ten years.

A judge of the High Court retires on his attaining the age of Sixty-Two years. As
provided under Art.217(1). He can resign by writing to the president of India. A
Judge of a High Court can be impeached on grounds of proved ‘misbehaviour’ or
‘incapacity’ just like a judge of the Hon’ble Supreme Court.
Restriction on practice in regard to a permanent judge of a High
Court -

Except the Hon’ble Supreme Court other High Courts, a permanent Judge of a
High Court shall not plead or act in any court or before any authority in India.
Art.217 provides that the provisions regarding to the resignation and removal of
the High Court Judges are concerned they are mutatis mutandis the same as those
for the Judges of the Hon’ble Supreme Court.

Powers and Functions of the High Court-

1) Appointment of District Judges--

The governor of state is required to consult the Hon’ble High Court exercising
jurisdiction in relation to the appointment, posting and promotion of District
Judges to such state .

2) Recruitment to judicial service-

For the appointment of the persons for judicial service except for posts of District
Judges, appointments are made by the governor of the State after consultation with
the State Public Service Commission and the Hon’ble High Court of the State in
accordance with the rules made .

3) Control over subordinate courts-

The Hon’ble High Court is empowered to control over District Courts and Courts
subordinate thereto including the posting and promotion of and grant of leave to
persons in Judicial Service holding posts inferior to that of District Judge shall be
vested in. This ‘Control’ is for maintaining the independence of the subordinate
judiciary.
4) Highest Court of appeal in the state-

The Hon’ble High Court is the highest court of appeal in the State in respect of
both civil and criminal matters

5) Transfer of certain cases to High Court-

If a case pending in a subordinate court which involves a substantial question of

law as to the interpretation of the constitution and that the determination of such
question is necessary for the disposal of the case, the Hon’ble High Court may
withdraw the case and dispose it off or may determine the question of law
accordingly and return the case with its judgment on the question to the
subordinate court which shall then dispose of the case in conformity with such
judgment.

6) Power of the High Court of superintendence over all courts-

Every High Court has the power of superintendence over all the subordinate courts
and tribunals within its Jurisdiction. Interference by the Hon’ble High Court under
Art.227 can be suo moto. When it is shown that grave injustice has been done to a
party or when the jurisdictional defect of the inferior court or tribunal is established
, the Hon’ble High Court interferes. Jurisdiction under Art.227 is exercisable in
case of lack of jurisdiction, errors of law, gross violation of natural Justice or
perverse findings are established11. In case of any court or tribunal constituted
under any law relating to the armed forces, the Hon’ble High Court has no power
of superintendence over. The Hon’ble High Court’s Power is exercisable even in
such situations when no appeal or revision lies to the High court under Art227.

7) Power of the High Courts in case of issuance of certain writs—

11
or See, [Link], The Constitution of India, (Fifth Edition) (2004), at p.195.
Art.226 provides one of the most significant and important provision in our
constitution. This Article often invoked by an aggrieved citizen for seeking redress
from the Hon’ble High Court. This Article is greater in scope than Art.32 because
the Hon’ble High Court is empowered under Art.226 to issue to any person or
authority in its directions, jurisdiction, writs, or orders, including writs in nature of
Habeas corpus, Mandamus, Prohibition, Quo-warranto and Certiorari, … for the
enforcement of the fundamental rights and for any other purpose. Thus, remedy
under Art.226 is discretionary. Power under Art.226 is to be exercised to determine
whether the action under challenge is lawful or unlawful. The Hon’ble High Court
may dismiss the writ petition if there be an convenient, alternative, efficacious
remedy.

8) Power to Punish for contempt –

Art.215 empowers that 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.
The court of record is explained under the point while explaining the power of
court of record of the Hon’ble Supreme Court.

Conclusion-

In the governance of a democracy, judiciary plays a very vital role within the
framework of parliamentary democracy and federalism. The constitution provides
a place of pride to the judiciary by conferring the power of judicial review of
legislative and administrative actions and entrusting it with the task of enforcement
of the fundamental rights guaranteed under the constitution. Thus, in short, the
judiciary is an indispensable part of governance and an efficient and independent
judiciary is the greatest guarantee of well being of society.
Indeed, the Indian judiciary is seen to be an arm of the social revolution,
upholding the equality and dignity of men that the people of India suffered. The
framers of the Indian constitution conceived of a judicial system, which is free
from the control of the executive as well as the legislature. India opted for a single
judicial system and by creating a single judiciary with the Hon’ble Supreme Court
at the top. Finally, the Hon’ble Supreme Court has been authorized to have its own
establishment and to have complete control over it. It is further authorized to make
appointments of officers and servants of the court and determine their service
conditions. All these provisions were made in order to ensure the independence
and impartiality of the judges. As [Link] said in the Assembly, it was the
intention of the framers to create a judiciary and to give it ample independence so
that it could act without fear or favour of the executive or anybody else [Link],
Indian constitution has tried to create an independent judiciary with checks and
balance system.

12
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