Judiciary

Flagship anchor

India has a single integrated judiciary, a feature distinct from the dual-court systems of true federations: the Supreme Court sits at the apex (Art 124 to 147), the High Courts operate at the State level (Art 214 to 237), and the subordinate courts function under each High Court (Art 233 to 237). The Supreme Court is at once the highest court of appeal, the guardian of the Constitution, and the protector of Fundamental Rights. Two doctrines define the institution: judicial review (the power to test laws and executive acts against the Constitution and strike down those that violate it) and judicial independence (security of tenure, fixed salaries charged on the Consolidated Fund, and a difficult removal process), both held to be part of the basic structure. For CAPF this chapter delivers high-yield facts: the strength of each court, the qualifications and retirement ages of judges, the appointment process (the collegium and the struck-down NJAC), the jurisdictions of the Supreme Court (Art 131, 132, 136, 143), the five writs, the contrast between Art 32 and Art 226, and the human-rights and armed-forces carve-outs (D K Basu, the AFSPA cases, the Art 136 exclusion of armed-forces tribunals). The NCERT Class XI text "Indian Constitution at Work", Chapter 6 (Judiciary), and Laxmikanth's chapters on the Supreme Court, High Courts and subordinate courts are the standard references.

The Supreme Court (Art 124 to 147)

Jurisdictions of the Supreme Court

The High Courts (Art 214 to 237)

A High Court's writ jurisdiction under Art 226 is wider than the Supreme Court's under Art 32 because Art 226 covers "any other purpose" (any legal right), not only Fundamental Rights. A litigant can approach the High Court for both a Fundamental Right and an ordinary legal right; the Supreme Court's Art 32 is confined to Fundamental Rights.

The five writs (Art 32 and Art 226)

Both the Supreme Court (Art 32) and the High Courts (Art 226) can issue all five writs. The crucial distinction is scope: Art 32 only for Fundamental Rights, Art 226 for Fundamental Rights and any other legal right.

Judicial review, the collegium and the NJAC

• Judicial review is the power of the courts to examine the constitutionality of legislative enactments and executive orders and to declare void those that contravene the Constitution. It flows from Art 13 (laws inconsistent with Fundamental Rights are void), Art 32 and Art 226 (writ powers), and Art 131 to 136 (appellate and original powers). It was affirmed as part of the basic structure in Kesavananda Bharati v State of Kerala (1973) and Minerva Mills v Union of India (1980), and Art 13 read with these makes it integral to the Constitution.
• The collegium system: judges of the higher judiciary are recommended for appointment by a collegium of the Chief Justice of India and the four (Supreme Court) or two (High Court matters) seniormost judges. It evolved through the Three Judges Cases: the First Judges Case (S P Gupta, 1981) gave primacy to the executive; the Second Judges Case (1993) and the Third Judges Case (1998, an advisory opinion under Art 143) established the collegium and the primacy of the judiciary in appointments.
• The NJAC: the 99th Constitutional Amendment Act (2014) and the National Judicial Appointments Commission Act (2014) created a six-member NJAC (the CJI, two seniormost SC judges, the Union Law Minister and two eminent persons) to make appointments. In the Fourth Judges Case (Supreme Court Advocates-on-Record Association v Union of India, 2015), the Supreme Court struck down the 99th Amendment and the NJAC Act as violating the independence of the judiciary, a part of the basic structure, and restored the collegium.

Public interest litigation (PIL)

PIL allows any public-spirited person or organisation to move the court on behalf of a person or class unable to approach the court themselves, by relaxing the traditional rule of locus standi (that only an aggrieved person may sue). It developed in the late 1970s and 1980s, associated with Justices P N Bhagwati and V R Krishna Iyer, and became the principal vehicle for enforcing the rights of the poor, prisoners, bonded labourers, and for environmental protection. Landmarks include Hussainara Khatoon v State of Bihar (1979, on the rights of undertrial prisoners and speedy trial), Bandhua Mukti Morcha v Union of India (1984, on bonded labour), and M C Mehta v Union of India (a series, on the environment). PIL also widened standing through "epistolary jurisdiction" (treating a letter or postcard as a petition).

The subordinate judiciary (Art 233 to 237)

Landmark constitutional cases (the spine of judicial review)

These cases recur in CAPF as "match the case with the doctrine" or "which case established the basic structure".

Independence of the judiciary (the safeguards)

The Constitution protects judicial independence through several devices that CAPF tests as a cluster:

• Appointment through the collegium, insulating the process from sole executive control.
• Security of tenure: a judge can be removed only by the difficult Art 124(4) process for proved misbehaviour or incapacity.
• Salaries and allowances charged on the Consolidated Fund of India (Supreme Court) or the State (High Court), and not subject to the vote of the legislature; they cannot be varied to a judge's disadvantage during the term (except during a Financial Emergency).
• A bar on practice after retirement before the same court (a retired Supreme Court judge cannot practise in any court in India; a retired High Court judge cannot practise before that High Court or any subordinate court).
• The conduct of a judge cannot be discussed in Parliament except on a motion for removal (Art 121).
• The power to punish for contempt (Art 129, 215) protects the court's authority.
• A separation of the judiciary from the executive (Art 50, a Directive Principle).

Static facts to memorise

Security and human-rights angle (CAPF-distinctive)

• The judiciary is the final protector of Fundamental Rights. Through Art 32 and Art 226 (and the writ of Habeas Corpus in particular), the courts check unlawful detention, custodial violence and abuse of power by the State, including by the police and the security forces.
• D K Basu v State of West Bengal (1997) laid down binding arrest-and-detention guidelines: the arresting officer must wear identification, prepare a memo of arrest attested by a witness, inform a relative or friend, record the place of detention, and ensure a medical examination. These apply to all forces.
• Naga People's Movement of Human Rights v Union of India (1998) upheld the constitutional validity of the Armed Forces (Special Powers) Act, 1958, but laid down operational safeguards and required the army's "do's and don'ts" to be followed; the Court held that the use of disturbed-area powers is subject to judicial scrutiny. See human rights and internal security.
• The right to approach the Supreme Court under Art 32 is itself a Fundamental Right, so it cannot ordinarily be denied; it is the constitutional remedy for the violation of other rights.
• Special leave under Art 136 expressly does not extend to a court or tribunal constituted under any law relating to the Armed Forces, a CAPF-relevant carve-out; appeals from the Armed Forces Tribunal follow a separate route.

Tribunals and the Armed Forces Tribunal (CAPF-relevant)

The 42nd Amendment (1976) added Part XIVA (Art 323A and Art 323B) providing for administrative tribunals and tribunals for other matters. The Central Administrative Tribunal (CAT) adjudicates service disputes of central government employees. The Armed Forces Tribunal (AFT), established under the Armed Forces Tribunal Act, 2007, adjudicates disputes and appeals relating to commissions, appointments, enrolment and conditions of service, and appeals from courts martial, for the armed forces. The constitutional point that CAPF tests is that the Supreme Court's special leave under Art 136 does not extend to a court or tribunal constituted under any law relating to the Armed Forces, so appeals from such tribunals follow a separate statutory route; the High Court's Art 226 power of judicial review, however, cannot be wholly ousted (L Chandra Kumar v Union of India, 1997, held that judicial review by the High Courts and the Supreme Court is part of the basic structure and cannot be excluded even for tribunals).

How CAPF asks it

Judiciary questions are factual: single-correct on strengths and retirement ages, "how many statements are correct" on jurisdictions and writs, Article-to-jurisdiction matching, and assertion-reason on judicial review and the basic structure.

Authored practice

Common confusion

• Art 32 versus Art 226: Art 32 (Supreme Court) only for Fundamental Rights and is itself a Fundamental Right; Art 226 (High Court) for Fundamental Rights and any other legal right (wider).
• Prohibition versus Certiorari: prohibition stops a proceeding before the order (preventive); certiorari quashes an order already passed (curative).
• Retirement ages: Supreme Court 65, High Court 62 (the apex court is higher).
• Collegium versus NJAC: the collegium is the current system; the NJAC (99th Amendment, 2014) was struck down in 2015.
• Original jurisdiction (Art 131) versus writ jurisdiction (Art 32): Art 131 is federal disputes; Art 32 is the enforcement of Fundamental Rights.
• Advisory opinion (Art 143): it is sought by the President and is not binding on the Government.

Memory hook

• "124 to 147" is the Supreme Court block; "214 to 237" is the High Court block.
• Writs "HaMPCoQ": Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo Warranto.
• "65 and 62": Supreme Court 65, High Court 62 (the higher court, the higher age).
• "1973-1980-1993-1998-2015": Kesavananda, Minerva Mills, Second Judges, Third Judges, NJAC struck down.
• "34" is the full strength of the Supreme Court (CJI + 33).

Night before

• Single integrated judiciary; Supreme Court at the apex (Art 124), inaugurated 1950-01-28.
• Supreme Court strength: CJI + 33 (34 total); judges retire at 65.
• High Court: one per State (Art 214); judges retire at 62; writ power under Art 226 (wider than Art 32).
• Jurisdictions: Art 131 original, Art 32 writ, Art 132 to 134 appellate, Art 136 special leave, Art 143 advisory.
• Removal of a judge: address by both Houses by special majority for proved misbehaviour or incapacity (Judges Inquiry Act, 1968).
• Collegium appoints judges; the NJAC (99th Amendment, 2014) was struck down in 2015.
• Judicial review flows from Art 13, 32, 226 and is part of the basic structure.
• D K Basu (1997) on custodial arrest; Naga People's Movement (1998) upheld the AFSPA with safeguards; Art 136 does not cover Armed Forces tribunals.

Glossary

• Integrated judiciary: a single hierarchy of courts administering both Union and State law.
• Judicial review: the power to test laws and executive acts against the Constitution and strike down those that violate it.
• Basic structure: the core features of the Constitution that cannot be amended away (Kesavananda Bharati, 1973).
• Collegium: the body of the CJI and senior judges that recommends judicial appointments.
• NJAC: the National Judicial Appointments Commission (99th Amendment, 2014), struck down in 2015.
• Writ: a formal court order (the five are Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo Warranto).
• Habeas Corpus: a writ to test the legality of a person's detention.
• Locus standi: the legal standing required to bring a case, relaxed in PIL.
• Public interest litigation (PIL): litigation brought in the public interest on behalf of those who cannot approach the court.
• Court of record: a court whose proceedings are recorded as evidence and which can punish for contempt.
• Special leave petition: a discretionary appeal to the Supreme Court under Art 136.
• Advisory jurisdiction: the Court's power to give a non-binding opinion on a Presidential reference (Art 143).
• Superintendence: the High Court's administrative and judicial control over courts within its jurisdiction (Art 227).
• Subordinate judiciary: the district and lower courts controlled by the High Court.

Related notes

• fundamental rights
• amendments and basic structure
• union executive
• parliament
• state government
• human rights and internal security
• constitutional and statutory bodies
• syllabus index