Q. How is the independence of the judiciary ensured? Describe the various jurisdictions of the Supreme Court of India. Explain the writ jurisdiction of a High Court. What is meant by Judicial Review?
India has adopted a federal constitution with distribution of powers between center and the states. An independent judiciary is the essence of the federal character of the constitution. It is imperative that the judiciary be impartial and independent of the legislative and executive branches of the country to ensure the functioning of the government in accordance with the constitution. The supreme court, being the guardian of the constitution, ensures that the fundamental rights of the citizens are not violated. To let the judiciary fulfill this big responsibility efficiently, the constitution has provided several measures that ensure the independence of the judiciary. However, owing to the nature of Indian politics, there have been several attempts by the govt. to extend its supremacy over the judiciary and to reduce its independence. To understand the dynamics between the govt. and the judiciary, we need to look at the provisions present in the constitution.
Composition of the Supreme Court
Art 124 specifies that the SC will be composed of a Chief Justice and at most 7 other judges. The number of other judges has now been increased to 25.
To be appointed as a judge of the supreme court, a person must be a citizen of India and
a) has been a Judge of a High Court for 5 yrs .
b) has been an advocate of a High Court for 10 yrs.
c) in the opinion of the president, a distinguished Jurist.
Appointment of the Judges
The procedure of appointment of the Chief Justice and other judges has created a lot of controversy because it is the key aspect of the independence of the judiciary. Art 124 specifies that the Chief Justice is appointed by the president after consulting with the judges of the supreme court and the high courts. Further, that while appointing other judges, the CJ must be consulted. Thus, the constitution clearly tried to prevent the executive from having complete discretionary powers in the appointment of the judges.
Until 1973, the senior most judge of the supreme court was appointed as the Chief Justice. However, this convention was broken when Justice AN Ray was appointed as the CJ by passing 3 more senior judges. This was seen as a blatant assault on the independence of the judiciary. The govt. pleaded that the word “consult” does not mean that the president is bound by the advise. He is free to make his own decision.
In 1977, in the case of Union of India vs Sankalchand Seth, which was related to the transfer of a Judge from one high court to another under art 222, SC held that the President has the right to differ from the advice provided by the consultants.
Judges Transfer Case 1
In the case of S P Gupta vs Union of India, 1982 SC unanimously agreed with the meaning of the word ‘consultation’ as determined in the Sankalchand’s case. It further held that the only ground on which the decision of the govt. can be challenged is that it is based on mala fide and irrelevant consideration. In doing so, it substantially reduced its own power in appointing the judges and gave control to the executive.
Judges Transfer Case 2
This matter was raised again in the case of SC Advocates on Record Association vs Union of India, AIR 1982. In this case, the SC overruled the decision of the S P Gupta case and held that in the matter of appointment of judges of high courts and supreme court, the CJ should have the primacy and the appointment of the CJ should be based on seniority. It further held that the CJ must consult his two senior most judges and the recommendation must be made only if there is a consensus among them.
Judges Transfer Case 3
A controversy arose again when the CJ recommended the names for appointment without consulting with other judges in 1999. The president sought advice from the SC (re Presidential Reference 1999) and a 9 member bench held that an advice given by the CJ without proper consultation with other judges is not binding on the govt.
As of now, due to the decision in Judges Transfer Case 2, the appointment of the judges in SC and High Courts are fairly free from executive control. This is an important factor that ensure the independence of the judiciary.
The following are other provisions that work towards the same goal:
1. Fixed Tenure
A SC Judge has a fixed tenure until retirement age. He cannot be removed except by a presidential order passed with a simple majority as well as by 2/3 majority of each house of the parliament present and voting.
No judge has ever been removed by a presidential order in India. The proceedings to remove were started to Justice V Ramaswamy, but the motion was not approved because lack of required majority.
In the case of C Ramachandran Iyer vs A N Bhattacharjee 1995, pressure was put the the local bar association on the judge to resign. In this case, the SC held that only the Chief Justice of the SC can be the prime mover of the action against erring judges. Thus, after this case, action against judges was allowed only through in-house procedures of the judiciary.
The salary of the judges cannot be changed after the appointment for their disadvantage.
3. Jurisdiction of the courts
The jurisdiction of the SC can be increased but not decreased i.e. their power cannot be curtailed.
4. Art 121
No discussion about the judges in the parliament is permitted as per art 121 except for the discussion about his removal.
5. Art 129 and 215
Power to punish for its contempt.
The SC and the High Courts have the power to punish anybody for civil and criminal contempt of itself under art 129 and 215.
6. Art 50 Separation of judiciary from executive
Art 50 urges the state to take steps to separate the judiciary from the executive in the public service of the state.
7. Appointment of the judges only after consultation with legal experts.
As discussed above, the executive does not have unlimited power over appointment of judges.
8. Art 124(7) Prohibition on practicing before any court
Art 124 prohibits a retired judge from appearing and pleading before any court or tribunal.
Jurisdictions of Supreme Court
Art 129 Court of Record
SC is a court of record and has all the powers including power to punish for civil or criminal contempt of court. In the case of Delhi Judicial Service Asso. vs State of Gujarat 1991, SC held that It can even punish for contempt of any subordinate court in India as well.
In the aftermath of babri masjid demolition, UP CM Kalyan Singh was punished for contempt of court for failing to deliver on his promise not to allow any construction in disputed area.
Art 131 Original Jurisdiction
The SC has original jurisdiction in any dispute arising between:
a) Center and one or more states.
b) Center and one or more states on one side and one or more states on another.
c.) two or more states.
Under original jurisdiction, individuals cannot bring a suit again Govt. of India. The suit must involves a question of law or fact on which a legal right depends. Further, the suit cannot be because of any commercial relation or political relation between the two parties.
In the case of State of Karnataka vs Union of India 1978, SC held that the suit filed by State of Karnataka against the Govt. regarding its objection to the appointment of an inquiry commission is maintainable.
In the case of Union of India vs State of Rajasthan 1984, it was held that a suit to recover damages under Railway Act is not maintainable. SC’s original jurisdiction is not attracted for ordinary commercial disputes.
The following are some exceptions under which SC does not have jurisdiction:
1. Any treaty, covenant, sanad, agreement, or any such instrument that was executed before the commencement of the constitution, and which is still in operation or provides that the jurisdiction of SC does not extend to such a dispute.
2. The parliament by law may restriction the jurisdiction of SC in disputes related to use, distribution, or control of the water or an interstate river or river valley.
3. Any matter referred to the Financial Commission.
4. Matters related to the adjustment of the expenses between the center and the state.
Enforcement of Fundamental Rights Art 32
SC is the guardian of the constitution. It is the supreme defender of the people’s fundamental rights. This position has been enforced by Art 32 that given any citizen to petition the SC if his fundamental rights are violated. The SC is empowered to give directions, orders, or writs including the writs of habeas corpus, mandamus, prohibition, and certiorari for the enforcement of the rights given in part III.
L Chandra Kumar vs Union of India AIR 1997 – Power of judicial review vested in HC by art 226 and in SC by art 32 is a basic feature on the constitution and cannot be amended.
Art 132 Appellate Jurisdiction – Constitutional
The SC is the highest court of appeal in the country. The writs and the decrees of the SC run throughout the country. A person can appeal to the SC under its appellate jurisdiction if he is not satisfied with the decision of the lower courts. Art 132(1) allows an appeal to be filed in the SC if three conditions are satisfied:
1. The order appealed must be against the judgement of a high court in civil, criminal, or other proceedings.
2. The case involves a question of law as to the interpretation of the constitution.
3. The High Court, under 134A certifies that the case be heard by the SC.
Krishnaswamy vs Governer General in Council 1947 – If there is a difference of opinion among High Courts and if there is no direct decision by SC on that point, it is a substantial question of law that can permit appeal in SC.
Art 133 Appellate Jurisdiction – Civil
An appeal shall lie to SC from any judgement, decree, or a final order in civil proceedings of a High Court only if the High Court certifies under 134A that
1. the case involves an substantial question of law of general importance.
2. in the opinion of the High Court, the said question needs to be decided by the SC.
Madan Gopal vs State of Orrisa 1956 – The pecuniary value of a dispute is immaterial. There may be matters which cannot be measured in money but the decision could have a far reaching effect and such cases can be permitted to be appealed in SC.
Art 134 Appellate Jurisdiction – Criminal
An appeal shall lie to SC from any judgement, decree, or a final order in criminal proceedings of a High Court in two ways – with or without a certificate from High Court.
1. Without Certificate
a) If the High Court, on appeal, has reversed an order of acquittal of an accused and sentenced him to death
b) if the High Court has withdrawn a case before itself from any subordinate court and in such a case has convicted the accused and sentenced him to death.
2. With Certificate
If the High Court certifies that this is a fit case for appeal to SC.
Siddheshwar Ganguly vs State of WB 1958 – In this case SC issued guidelines for issuing certificated under 134A. A mere question of fact is not enough but it must also involve a substantial question of law.
Art 135 Federal Court’s (the one that existed before the commencement of the constitution) jurisdiction to be exercised by the SC.
Art 136 Special Leave to appeal by SC
Under this article, the SC is authorized to grant, on its discretion, special leave to appeal from any judgement, decree, determination, sentence, or order, in any case or matter, passed or made by any court or tribunal in the territory of India.
Ramakant Rai vs Madan Rai AIR 2004 – Private party can appeal against the acquittal even if the state govt. hasn’t. SC cannot refrain from doing its duty just because a private party and not the state has appealed against the order.
Pritam Singh vs State AIR 1950 -SC explained how this discretionary power is to be used – Since the power is exceptional is very wide, it must be used sparingly and in exceptional circumstances. Beyond this point it is not possible to fetter the exercise of this power by any set formula.
Art 137 Power to review its judgement.
Under exceptional circumstance, the SC may review its judgement.
Art 139 A
Under this article the SC has the power to withdraw before itself any case or cases from High Courts if it feels that these cases involves the same or similar question of law that is of general importance.
Union of India vs SGPC 1986 – SC may transfer a case from one High Court to another under art 136 if it feels that the case cannot be dealt with fairly in one High Court due to exceptional circumstances.
Art 143 Advisory Jurisdiction
Art 143 provides that if at any time it appears to the president that a question of law or fact has arisen or is likely to arise and that the question is of such public importance that expedient opinion of the SC is required, then he may refer it to the SC. The SC, after such hearing as it may deem fit, will report back to the president. Under 143(2), the SC is can be asked to give opinion even on matters not permitted under art 131.
There is no similar provision in the American constitution. In US, the court can give ruling only on concrete cases.
In re Kerala Education Bill 1953, SC has interpreted the word “may” in clause 1 as it is not bound to give its opinion. If it has a good reason, it may refuse to express its opinion.
In re Special Courts Bill 1979 case, SC has held that opinions given by it under this jurisdiction are binding on all courts in the country.
In re Cauvery Disputes Tribunal 1992, SC declared that the ordinance passed by the State of Karnataka to not follow the order of the tribunal to release water to TN, is unconstitutional.
In the landmark case of Ayodhya Dispute and Advisory opinion 1994, the SC refused to express its opinion on whether a temple existed on the disputed location because it was superfluous, unnecessary, and favors a particular religion.
Judgement of the SC is binding on all courts, except itself. In the case of Bengal Immunity Co vs State of Bihar. 1955, SC held that the principle of Stare decisis is not an inflexible rule of law and cannot be used to perpetuate errors.
Writ Jurisdiction of High Courts
The constitution gives wide powers to all High Courts to ensure that injustice is not tolerated in any sphere. Art 226 provides that notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
It is important to note that the power is not only to enforce fundamental rights but for any other purpose, which makes its powers even wider than Supreme Court. Here, any other purpose means any legal right of legal duty.
In a landmark case of L Chandra Kumar vs Union of India AIR 1997, SC has held that the power of judiciary over legislative action vested in a High Court is a basic feature of the constitution and cannot be removed through constitutional amendment.
Locus Standi : Who can apply
In general, the person whose constitutional right or legal right has been infringed has the right to apply. However, due to judicial activism, the “doctrine of sufficient interest” has originated. According to this, any person who is even remotely affected can petition the High Court. It also allows public spirited persons to file a writ petition for any person or class if that person or class is not able to do so himself due to poverty or any other reason.
In ABSK Sangh vs Union of India AIR 1991, SC held that even an unregistered trade union has right to file a petition for redressal of a common grievance.
In the case of Chairman, Railway Board vs. Chandrima Das AIR 2000, SC held that an advocate of Cal. High Court has sufficient interest in making a public place like a railway station a safe place and so she has right to demand compensation for the bangladeshi woman gang raped by railway employees.
Scope of Art 226
In the case of Basappa vs Naggapa, AIR 1954, SC has held that the art 226 confers wide powers to remedy injustice where ever it is found. Art 226 says, “…or writs or the kind of…”, which means that it is not limited only the mentioned types of writs. It can issue orders orders of any kind that the situation may require. Thus, it makes the scope of Art 226 a lot wider than art 32.
Court Martial and art 226
In a significant case (which case?), Delhi High Court held that section 18 of India Army Act is not beyond the scope of High Court. While High Court may not interfere in the sentence awarded in a court martial, such an order cannot be arbitrary and mala fide. Thus, it is open to judicial review.
In the case of Union of India vs R K Sharma, AIR 2001 SC has held that court should not interfere only on compassionate grounds. Only when there is a perverseness or gross injustice on the face of it, there can be judicial review.
Dispute between private parties – No Jurisdiction
In Mohan Pandey vs Usha Rani Rajgaria SCC 1992, SC held that the extraordinary jurisdiction of High Court cannot be exercised in the private party disputes relating to property rights unless there is a violation of statutory rights by statutory authorities.
Natural Justice is not exclusively the principle of administrative law. The courts are also bound by the same principle. Every administrative action must be supported by reasons. The reasons must be recorded to ensure that there is no arbitrariness.
Territorial extent of writ jurisdictions
Art 226 imposes two limits on HC’s writ. First, it can run only in the territorial jurisdiction of the High Court and secondly the person or authority must lie in that jurisdiction.
In the case of Election Commision of India vs Venkata Rao, AIR 1975 SC held that Madras High Court cannot issue a writ to ECI because it is based in New Delhi and so is out of its jurisdiction. The law commission recommended that these are serious limitations and they defeat the very purpose of this article. So it was amended by 15th amendment in 1963. High Court can now issue a writ even to a central authority if the cause of action in whole or part arises in its jurisdiction.
In the case of ONGC vs Utpal Kumar Basu SCC 1994, it was held that the averment in the petition did not disclose that a part of the cause of action arose in the jurisdiction of Calcutta and so High Court does not have any jurisdiction to entertain the writ petition.
Discretionary Remedy – Not to be exercised if alternate remedy is available
The remedy available in 226 is a discretionary remedy and the High Court has the discretion to accept or refuse a petition. In general, if a remedy is available elsewhere, writs under 226 are discourages. However, this does not mean that any remedy available can be a ground for not entertaining the petition under 226. The remedy must be effective and sufficient. In the case of Vellaswamy v IG Police, Madras 1982, SC held that the remedy under Police Rules of TN was not sufficient and so High Court was wrong in dismissing the petition.
Effect of Laches or delay
Remedy under 226 should be sought with in a reasonable time. However, High Court may accept a petition is there is a reasonable cause for delay in seeking justice. Poverty has been held to be reasonable ground.
The concept of Judicial Review started from the case of Marbury vs Madison in 1800 in the USA. In this case, justice John Marshall held that judiciary has inherent power to review actions by legislature even if no explicit provision is given in the constitution.
By adopting a written constitution and an independent judiciary, India has provided the rule of law instead of rule on men to the citizens. However, the rule of law will be rendered useless if the legislature is able to make laws that violate the fundamental rights of the citizen. Thus, the constitution in Art 13 has provided the judiciary with the power to review laws made by the legislature. This is called Judicial Review.
Art 13 says:
- All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
- The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
- In this article, unless the context otherwise requires,—
- (a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
- “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
- Nothing in this article shall apply to any amendment of this Constitution made under article 368.
In the case of L Chandra Kumar vs Union of India SC AIR 1997 held that the power vested in SC by art 32 and High Court by art 226 over legislative action is a basic feature.
Doctrine of Severability
AK Gopalan vs State of Madras SC AIR 1950 : Only section 14 of Preventive detention act is void and not the whole act.
Doctrine of Eclipse
Bhikaji vs State of MP SC AIR 1955: Applies to pre-constitutional law
Deep Chand vs State of UP SC AIR 1959: Does not apply to post – constitutional law.
State of Gujrat vs Ambika Mills SC AIR 1974 : Applies to post constitutional law for non-citizens.
Dulare Lodh vs 3rd additional district judge SC AIR 1984: Applies to post constitutional law as well.
Doctrine of Waiver
Basheshar Nath vs Income tax commissioner SC AIR 1959 : Citizen cannot waive right.
Meaning of Law
Keshavanand Bharati vs State of Kerala SC AIR 1973: Rules and regulations made under legislative power and not amendments.