Judiciary: Supreme Court, High Courts and judicial review

Structure

India has a single integrated judiciary. The Supreme Court is at the top. Below it are the High Courts, and below them the district and subordinate courts. The same courts enforce both central and state laws, unlike the dual system in the USA.

Supreme Court (Articles 124–147)

• Strength: set by Parliament. The Constitution started with 8 judges (CJI plus 7). The Supreme Court (Number of Judges) Amendment Act 2019 made it 34 (CJI plus 33).
• Appointment: by the President after consultation.
  • First Judges case (1981): the executive had primacy.
  • Second Judges case (1993): created the collegium, with the CJI's opinion having primacy.
  • Third Judges case (1998): collegium of the CJI plus four senior-most judges for Supreme Court appointments.
  • Fourth Judges case (2015): struck down the 99th Amendment and the NJAC.
  • The CJI is appointed by seniority convention.
• Qualifications: citizen, and 5 years as a High Court judge, or 10 years as a High Court advocate, or a distinguished jurist in the President's opinion.
• Tenure: till 65 years.
• Removal (Article 124(4)) on "proved misbehaviour or incapacity". Each House must pass the address with a majority of total membership and two-thirds present and voting. The inquiry follows the Judges (Inquiry) Act 1968. No Supreme Court judge has been removed yet; the motion against Justice V. Ramaswami (1993) failed in the Lok Sabha.
• Independence:
  • salaries are charged on the Consolidated Fund;
  • salaries cannot be reduced except in a financial emergency;
  • judges' conduct cannot be discussed in the legislature except during removal;
  • the Court has power to punish for contempt (Article 129);
  • retired judges cannot practise in any court in India.

Jurisdiction

Type	Article	What
Original	131	Centre vs states, state vs state. Exclusive
Writ	32	Enforcement of Fundamental Rights
Appellate	132–134, 136	Constitutional, civil, criminal appeals; Special Leave Petition (136) from any court or tribunal except military
Advisory	143	President may refer questions of law or fact; opinion not binding (e.g. Ram Janmabhoomi reference 1993 was declined)
Court of record	129	Its judgments are precedents; can punish contempt of itself
Review	137	Can review its own judgments; curative petition evolved in Rupa Ashok Hurra (2002)
Complete justice	142	Any decree or order needed for complete justice

Article 141: the law declared by the Supreme Court binds all courts. The seat is Delhi; the CJI may, with the President's approval, sit elsewhere (Article 130).

High Courts (Articles 214–231)

• There are 25 High Courts. Some serve more than one state or UT, for example Gauhati, Punjab and Haryana, and Bombay (which also covers Goa, Dadra and Nagar Haveli and Daman and Diu). Jharkhand HC is at Ranchi; Patna HC dates from 1916.
• Judges are appointed by the President after consulting the CJI and the Governor. For High Court appointments the collegium is the Chief Justice of the High Court plus two senior judges, with the Supreme Court collegium's approval.
• Judges retire at 62. Removal is the same as for a Supreme Court judge.
• Writ jurisdiction under Article 226 is wider than Article 32: it covers Fundamental Rights and "any other purpose".
• Superintendence (Article 227) over all courts and tribunals in the state, except military tribunals.
• District judges are appointed by the Governor in consultation with the High Court (Article 233).

Judicial review and activism

• Judicial review is the power to strike down laws and executive acts that violate the Constitution. Its bases are Articles 13, 32, 131–136, 226, 227, 245–246 and 372.
• Judicial activism is a proactive role in protecting rights. Examples:
  • expanding Article 21 to cover livelihood, a clean environment, speedy trial, privacy and dignity;
  • the Vishaka guidelines (1997) on sexual harassment, which led to the POSH Act 2013;
  • continuing mandamus in Vineet Narain (1997) on CBI independence.
• Judicial overreach is the criticism that courts run administration or make policy, for example the liquor ban near highways (2016).

Public Interest Litigation

• PIL relaxes the rule of locus standi, so any public-spirited person can approach the court for those who cannot.
• Early cases: Hussainara Khatoon (1979), on undertrial prisoners in Bihar; S. P. Gupta (1981); M. C. Mehta (environment); Bandhua Mukti Morcha (1984), on bonded labour.
• Letters and postcards have been treated as petitions.
• Guidelines in State of Uttaranchal v. Balwant Singh Chaufal (2010) are meant to stop frivolous PILs.

Alternative dispute resolution and tribunals

• Lok Adalats work under the Legal Services Authorities Act 1987. There is no court fee, the award is final, and no appeal lies against it. NALSA is headed by the CJI as Patron-in-chief.
• Gram Nyayalayas Act 2008: mobile courts at the intermediate panchayat level.
• Tribunals: Article 323A covers administrative tribunals (CAT, 1985). Article 323B covers other subjects, such as tax, land reforms and elections. Both were added by the 42nd Amendment. In L. Chandra Kumar (1997), tribunal decisions are subject to High Court writ jurisdiction.
• Fast-track courts and e-Courts: the e-Courts mission mode project and the National Judicial Data Grid (NJDG) track pendency, which is over 5 crore cases across all courts.

Exam tip: Questions often turn on whether something is original or appellate jurisdiction, and on Article 32 vs 226. Remember that an Article 143 opinion is not binding, while an Article 141 judgment is binding on courts.