The Judiciary

Overview

The judiciary is the guardian of the Constitution and the protector of fundamental rights. India's judiciary is a single integrated hierarchy — the Supreme Court at the top, High Courts in each state, and subordinate courts below. Unlike the United States, where federal and state courts are largely separate, India's Constitution establishes a unified judicial system with the Supreme Court as the final court of appeal for all matters.

The judiciary's independence is protected through multiple constitutional safeguards: secure tenure, fixed salaries charged on the Consolidated Fund, protection from removal except by impeachment, and prohibitions on post-retirement political office.

Supreme Court of India (Articles 124–147)

Composition

• Chief Justice of India (CJI) and 33 other judges (maximum sanctioned strength: 34, increased from 26 in 2009).
• All judges are appointed by the President under a specific constitutional procedure (see below).

Appointment of Judges: The Collegium System

The appointment of Supreme Court and High Court judges has been one of the most contested areas of constitutional law.

• First Judges Case (S.P. Gupta v. Union of India, 1981): The Court held that the President (executive) has the final say in appointments, and "consultation" with the Chief Justice does not mean "concurrence."
• Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993): Overruled the First Judges Case. Held that the Chief Justice's opinion is binding if formed by a "collegium" of the CJI and the two most senior judges. The President could only reject a recommendation with "cogent reasons."
• Third Judges Case (In re: Presidential Reference, 1998): Expanded the collegium to the CJI + four most senior judges. The President must follow the collegium's recommendations unless there are strong reasons, in which case the collegium must reconsider.
• National Judicial Appointments Commission (NJAC) Act, 2014: Parliament passed a constitutional amendment to replace the collegium with a commission including the CJI, two senior judges, the Law Minister, and two "eminent persons." In Supreme Court Advocates-on-Record Association v. Union of India (2015), the Court struck down the NJAC as unconstitutional, holding that judicial primacy in appointments is part of the "basic structure" of the Constitution. The Collegium system was restored.

The Collegium system is widely criticized for lack of transparency and accountability, but it remains the law. There have been repeated calls for reform, but no alternative has passed constitutional muster.

Jurisdiction of the Supreme Court

• Original Jurisdiction (Article 131): Disputes between the Union and one or more states, or between states. Does not extend to disputes arising from commercial agreements (the Supreme Court held in State of Karnataka v. Union of India, 1978, that ordinary contractual disputes are outside Article 131).
• Writ Jurisdiction (Article 32): The Supreme Court can issue writs for the enforcement of fundamental rights. This is a guaranteed right — citizens can directly approach the Court.
• Appellate Jurisdiction:
  • Constitutional matters (Article 132): Appeals from High Court judgments involving substantial questions of constitutional law, certified by the High Court or with special leave.
  • Civil matters (Article 133): Appeals from High Court civil judgments if the High Court certifies that the case involves a substantial question of law of general importance.
  • Criminal matters (Article 134): Appeals in criminal cases where the High Court has reversed an acquittal and sentenced the accused to death, or withdrawn a case from a lower court for trial and sentenced to death.
  • Special Leave Petition (SLP) — Article 136: The Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, or order in any matter. This is the most widely used appellate route — thousands of SLPs are filed every year. It is extraordinary jurisdiction, not a matter of right.
• Advisory Jurisdiction (Article 143): The President may refer questions of law or fact of public importance to the Supreme Court for its opinion. The Court's advice is not binding but carries great weight. Notable advisory opinions include the Berubari Union case (1960, on transfer of territory to Pakistan) and the 2G spectrum reference (2012, on auction of natural resources).
• Review Jurisdiction (Article 137): The Court can review its own judgments. Review is not automatic — a party must file a review petition showing an error apparent on the face of the record, discovery of new evidence, or other sufficient reason.
• Curative Jurisdiction: An extraordinary remedy developed by the Supreme Court in Rupa Ashok Hurra v. Ashok Hurra (2002). A curative petition can be filed after a review petition is dismissed, on grounds of violation of natural justice, bias, or suppression of material facts. It is heard by the three most senior judges plus the judges who delivered the original judgment (if available).

Law Declared by the Supreme Court (Article 141)

The law declared by the Supreme Court is binding on all courts in India. However, the Supreme Court is not bound by its own previous decisions — it can overrule itself, though it does so cautiously and typically by a larger bench.

High Courts (Articles 214–231)

Composition

• Each state has a High Court. Parliament may establish a common High Court for two or more states (e.g., the Bombay High Court serves Maharashtra, Goa, Dadra and Nagar Haveli, and Daman and Diu).
• There are currently 25 High Courts in India.
• The strength of each High Court is determined by the President based on workload.

Appointment and Transfer

• High Court judges are appointed by the President on the recommendation of the Supreme Court Collegium (CJI + two senior-most judges + the senior-most judge of the High Court concerned).
• The Chief Justice of a High Court is appointed by the President after consultation with the CJI and the Governor of the state.
• Transfer of judges (Article 222): The President may transfer a judge from one High Court to another after consultation with the CJI. The Supreme Court in Supreme Court Advocates-on-Record Association (1993) held that such transfers should not be punitive and the judge must be consulted.

Jurisdiction

• Original Jurisdiction: In civil and criminal matters, especially in chartered High Courts (Bombay, Calcutta, Madras, Delhi) which have original civil jurisdiction for high-value suits.
• Writ Jurisdiction (Article 226): High Courts can issue writs not only for fundamental rights but also for any other legal right. This is broader than Article 32. Article 226 cannot be suspended even during an Emergency.
• Appellate Jurisdiction: Appeals from subordinate courts — both civil and criminal.
• Supervisory Jurisdiction (Article 227): High Courts have supervisory power over all courts and tribunals within their territorial jurisdiction. They can call for records, issue directions, and make rules for subordinate courts.
• Control over Subordinate Judiciary: High Courts control posting, promotion, and leave of district judges and below (Article 235).

Subordinate Courts

Below the High Courts are the district and sessions courts, presided over by District and Sessions Judges. District courts handle civil cases (as District Judges) and criminal cases (as Sessions Judges). Below them are courts of Additional District Judges, Chief Judicial Magistrates, Judicial Magistrates, and Civil Judges.

The organization of subordinate courts is largely governed by state laws, but the High Court exercises administrative control (Article 235).

Judicial Review and Judicial Activism

Judicial Review

Judicial review is the power of courts to examine the constitutionality of legislative and executive actions. In India, this power is:

• Explicit: Articles 13, 32, 131–136, 143, 226, and 227 explicitly provide for judicial review.
• Implied: As part of the "basic structure" of the Constitution, judicial review cannot be abolished by constitutional amendment (Kesavananda Bharati, 1973; L. Chandra Kumar v. Union of India, 1997).

The Supreme Court can strike down laws that violate fundamental rights, exceed legislative competence (Article 246, Seventh Schedule), or violate the basic structure.

Judicial Activism

India's judiciary has been described as one of the most activist in the world. Key instruments include:

• Public Interest Litigation (PIL): Relaxed locus standi allows anyone to approach courts on behalf of marginalized groups.
• Suo motu actions: Courts take up cases on their own motion based on newspaper reports or letters.
• Continuing mandamus: Courts monitor compliance with their orders over extended periods (e.g., the Ganga pollution case, the Delhi air quality case).
• Commissioner-led monitoring: Courts appoint commissioners to inspect and report on conditions (e.g., jail conditions, child welfare homes).

Judicial activism is praised for holding the executive accountable and protecting rights where other institutions fail. Critics argue it encroaches on the separation of powers and the domain of elected representatives. The debate is ongoing and heated.

Independence of the Judiciary

The Constitution protects judicial independence through several safeguards:

• Security of tenure (Article 124(2), 217): Judges hold office until age 65 (Supreme Court) or 62 (High Courts). They cannot be removed except by impeachment — a resolution passed by a majority of total membership and two-thirds of members present and voting in each House, on grounds of "proved misbehaviour or incapacity."
• Salaries charged on the Consolidated Fund (Article 112(3)(d)): Judges' salaries and allowances are non-votable — Parliament cannot reduce them.
• Prohibition on practice after retirement (Article 124(7)): Retired Supreme Court judges cannot practice in any court or tribunal in India. (High Court judges can practice in other High Courts and the Supreme Court.)
• No diminution of privileges (Article 125(2), 221(2)): After appointment, privileges cannot be altered to the judge's disadvantage.
• Restrictions on post-retirement political office (Article 124(6)): A retired judge cannot hold any office of profit under the Government of India or a state (except judicial or quasi-judicial positions, like Chairman of the National Human Rights Commission or the Law Commission).

Impeachment: No Supreme Court judge has ever been successfully removed by impeachment. Justice Ramaswami (1993) faced impeachment in the Lok Sabha but the motion fell short of the required majority. Justice Soumitra Sen of the Calcutta High Court was impeached by the Rajya Sabha in 2011 but resigned before the Lok Sabha voted.

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