This article is written by Harshita of 9th Semester of B.COM LL. B of IMS Law College, Noida, an intern under Legal Vidhiya
This research critically examines the constitutional framework governing the Indian Judiciary, a cornerstone of India’s democratic framework. The paper highlights the judiciary’s pivotal role and delves into the Constitutional provisions that serve for its functioning.
Crucially, the paper investigates the concept of judicial independence, examining its role in upholding the rule of law and ensuring impartial decision-making in the judicial system. The paper also scrutinizes the procedures for the appointment and removal of judges, highlighting their significance in safeguarding the judiciary’s autonomy and integrity.
The distribution of powers between the Supreme Court and High Courts, along with the delineation of jurisdiction, is analyzed to reveal the judiciary’s role in upholding the Constitution’s primacy.
Lastly, the research delves into the concept of judicial review, an essential tool in upholding citizens’ rights and Constitutional principles.
This research paper offers a comprehensive analysis of Constitutional safeguards for the Indian judiciary, illuminating the mechanisms in place to protect its autonomy and its vital role in ensuring justice and democracy in India.
Keywords: Judicial independence, Constitution, Writ Jurisdiction, Judicial Review, Collegium System
The Indian judiciary serves as the guardian of justice, entrusted with the responsibility of upholding the rule of law and protecting the fundamental rights of its citizens. As an integral pillar of the world’s largest democracy, the Indian judiciary’s independence and impartiality are paramount to ensuring a just and equitable society.
Indian Constitution adopted in 1950, exquisitely provides for the separation of powers among the executive, legislature, and judiciary, emphasizing the judiciary’s significance as a check and balance against potential abuse of power. Over the decades, India has witnessed a plethora of cases that have challenged the boundaries of these safeguards and tested the resilience of the judiciary in the face of political pressures, public expectations, and societal transformations.
In an ever-evolving democratic landscape, the Indian judiciary remains at the heart of the nation’s pursuit of justice, adapting and evolving to meet the evolving challenges.
The Indian Judiciary is one of the key pillars of the country’s democratic system. It is a complex and hierarchical system that plays a crucial role in upholding the rule of law, with the Supreme Court of India at its highest judicial body. Below the Supreme Court are the High Courts of each state and union territory, followed by subordinate courts at the district and lower levels.
The functioning of the Indian Judiciary is governed by various provisions outlined in the Constitution of India which are as follows:
- Supreme court of India: Articles 124 to 147 contained in Chapter IV of Part V of the Constitution deal with the powers and functions of the Supreme Court of India. It is the highest court in the country.
- High courts: Chapter V of Part VI of the Constitution with Articles 214 to 231 deal with the establishment and organization of High Courts in various states and union territories.
- Independence of the judiciary: Art. 50 of the Indian Constitution provides for the separation of powers which helps in maintaining the independence of the judiciary. This separation of powers is essential to maintain the integrity and impartiality of the judicial system.
- Appointment of the judges (Articles 124, 217): The President of India appoints judges to the Supreme Court and High Courts based on the recommendations of the collegium system, which consists of senior judges.
- Tenure and removal: The Constitution provides for the tenure and conditions of service for judges to safeguard their independence. They can only be removed through a lengthy and difficult impeachment process.
- Jurisdiction and powers: The Constitution of India provides for the original, appellate, and advisory jurisdiction and various rule making powers to the supreme court and the high courts.
- Writ jurisdiction: The Indian Constitution empowers both the Supreme Court and High Courts with writ jurisdiction to safeguard fundamental rights. The Supreme Court, under Art.32, can issue Habeas Corpus, Mandamus, Prohibition, Quo Warranto, and Certiorari writs to redress fundamental rights violations. High Courts, under Art. 226, hold similar powers within their territorial limits.
- Judicial Review: Judicial review is the power of the court to invalidate the legislative and executive action of them being unconstitutional. Art.13 of the Constitution declares that laws inconsistent with or in derogation of fundamental rights are void. This grants the judiciary the power of judicial review to strike down laws that violate the Constitution.
Together, these constitutional provisions provide for the safeguard of the Indian judiciary, emphasizing its independence, jurisdiction, and role in upholding the rule of law and protecting the fundamental rights of citizens.
SUPREME COURT OF INDIA
The Supreme Court of India, as the apex judicial body of the country, plays a pivotal role as the Union Judiciary. It serves as the bastion of constitutional supremacy, safeguarding the Constitution’s inviolability. It acts as the ultimate arbiter, ensuring that laws and government actions adhere to constitutional principles. By protecting fundamental rights, maintaining the balance of power, and providing legal guidance, the Court upholds the rule of law, setting precedents for the nation. It functions as the final and highest court of appeal in civil and criminal matters.
Chapter IV of Part V of the Indian Constitution, which comprises art. 124 to 147, deals with the provisions pertaining to the Supreme court of India.
Whereas, the establishment and constitution of the Supreme court is dealt under Art. 124, which says that there shall be a Supreme Court of India, consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.
However, in 1986 this number was increased to 25, not including the Chief Justice and in 2009, it was increased to 30 excluding the Chief Justice. Subsequently, the Supreme Court Amendment Act, 2019 increased this number to 33 excluding the Chief Justice.
HIGH COURTS OF THE STATES
In the Indian Constitution, High Courts play a crucial role as the second-highest judicial authorities within the country’s federal structure. India has 25 High Courts, each corresponding to a particular state or union territory. Chapter V of Part VI of the Indian Constitution, which comprises art. 214 to 231, deals with the provisions related to the High Courts in the States.
Article 214 of the Indian Constitution reads as, there shall be a High Court for each state. It mandates the establishment of a High Court for each state in India to ensure the administration of justice, protection of rights, and legal oversight within the boundaries of that state. It is provided under art. 216 that each High Court shall comprise a Chief Justice and such other Judges that the President deems necessary to appoint as and when required. While, art. 231(1) empowers Parliament to establish a common High Court for two or more states or for two or more states and a Union territory.
These High Courts play a crucial role in the Indian judicial system and serve as a vital pillar of democracy and justice at the state level.
INDEPENDENCE OF THE JUDICIARY
The concept of judicial independence is a vital principle of a democratic society. It ensures the judiciary, as one of the three branches of government alongside the executive and legislative branches, operates without external influences or pressures that could obstruct its ability to deliver impartial and just rulings in accordance with the law. Without it, the judiciary would be susceptible to external pressures, potentially leading to biased or politically motivated decisions, undermining justice and the rule of law. Citizens’ rights would be jeopardized, as their access to a fair and impartial legal system would be compromised.
Art.50 of the Constitution plays a pivotal role in upholding judicial independence. It stipulates that the State must take measures to separate the judiciary from the executive within the public services of the State. This provision underscores the necessity of maintaining a clear demarcation between these branches, ensuring that the judiciary can make unbiased decisions free from undue governmental or political influence. This separation of powers is essential to uphold the rule of law, protect the rights of citizens, and prevent potential abuses of authority.
The UN’s Basic Principles on Judicial Independence, adopted in 1985, states that “The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.”
A landmark case, S.P. Gupta vs. UOI, commonly known as the “First Judges case,” had a profound impact on the concept of judicial independence. This case emphasized the vital role of judicial independence as a fundamental aspect of the Indian Constitution. The judgment strongly stressed the necessity for the judiciary to operate without external pressures, particularly from the executive branch, to effectively uphold the rule of law. To address concerns of executive interference in judge appointments and transfers, the Supreme Court established the Collegium System. This system empowered judges to recommend appointments and transfers, reducing executive influence and safeguarding judicial independence.
Therefore, an independent judiciary is essential for upholding the principles of justice, equality, and the protection of individual rights within a democratic society.
APPOINTMENT OF THE JUDGES
The appointment of judges to the Supreme Court and High Courts is governed by Articles 124 and 217 of the Indian Constitution respectively. The process of appointment is a critical aspect of ensuring an independent and impartial judiciary.
Every judge of the Supreme Court and the High Court is appointed by the President by warrant under his hand and seal on recommendations made by a collegium system. In the case of the Supreme Court, the President consults with the Chief Justice of India (CJI) and other senior judges of the Supreme Court. For the High Courts of the States, the consultation involves the CJI, the Governor of the concerned state, and the Chief Justice of the High Court.
In the landmark case of Supreme Court Advocates-on-Record Association and another vs Union of India, the Supreme Court upheld the independence of the judiciary in the appointment of judges. It clarified the process of judicial appointments by upholding the primacy of the Chief Justice of India (CJI) and a collegium of senior judges in the selection of judges for the Supreme Court and High Courts. The decision significantly limited the executive’s role to consultation, ensuring greater judicial independence in appointments. This ruling expanded upon the earlier “First Judges Case” and solidified the collegium system.
But prior to this case, the judges were appointed by the President on the recommendations of the National Judicial Appointments Commission referred to in art.124A which was added by the Constitution (Ninety-ninth) Amendment Act, 2014 and the National Judicial Appointments Commission Act, 2014. But was declared void by the Supreme Court in the above-mentioned case also known as the Second Judges Case.
TENURE AND REMOVAL
A judge of the Supreme Court holds office until they reach the age of 65 years, unless they resign or are removed by impeachment. Whereas, the retirement age for judges of a High Court is 62 years.
Article 124(4) of the Indian Constitution outlines the removal process for Supreme Court judges, while Article 218 deals with High Court judges. Removal proceedings can be initiated in either house of Parliament:
- 100 Lok Sabha members providing a signed notice to the Speaker, or
- 50 Rajya Sabha members providing a signed notice to the Chairman.
The Speaker or Chairman has the authority to assess the notice, consult relevant individuals, and decide whether to admit or reject it. This procedure is governed by the Judges (Inquiry) Act, 1968, ensuring the accountability of both Supreme Court and High Court judges in India.
JURISDICTION AND POWERS
The Constitution of India provides for the original, appellate, and advisory jurisdiction and various rule making powers to the supreme court and the high courts which are as follows:
- A Court of Record: Art.129 and 215 of the constitution makes the Supreme Court and every high court ‘a Court of Record’ and confers all the power of such a court including the power to punish for contempt of itself respectively. A Court of record has the authority to maintain a permanent and verifiable record of their proceedings. This record serves as evidence and can be referred to in the future.
- Original Jurisdiction: Art. 131 of the constitution provides for the original jurisdiction of the supreme court. It states that the Supreme Court has original jurisdiction in cases involving disputes between the Government of India and one or more states, or between the Government of India and one or more states on one side and one or more states on the other side, as well as in disputes involving two or more states. Whereas, art. 225 states that the existing High Courts retain their jurisdiction and legal procedures as they were prior to the Constitution’s enactment. They have the authority to administer justice, establish court rules, and regulate court proceedings, just as they did before. However, any prior restrictions on their original jurisdiction related to revenue matters or actions in revenue collection no longer apply under the Constitution.
- Appellate Jurisdiction: It is provided under art. 132 of the constitution that an appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India. It hears appeals from:
a. Appeals from High Courts: It hears civil and criminal appeals from High Courts in India, both in matters of law and facts.
b. Appeals in Constitutional Matters: The Supreme Court has the authority to hear cases related to the interpretation of the Constitution. This includes cases involving fundamental rights, the federal structure of government, and constitutional validity of laws.
c. Special Leave Petitions: The Supreme Court has discretionary power to grant Special Leave to Appeal (SLP) against 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. This allows it to hear cases of national importance or legal significance.
Whereas, High Courts hear appeals from lower courts and tribunals whether in a civil, criminal or other case within their respective territories. This includes appeals from district courts, sessions courts, and other subordinate courts.
- Advisory Jurisdiction: The Supreme Court also exercises advisory jurisdiction under art. 143. The President of India can seek the opinion of the Supreme Court on any question of law or fact that has arisen or is likely to arise.
Powers of the Supreme Court and High Courts
Art.145 of the Indian Constitution empowers the Supreme Court to make rules governing its own procedures, subject to the approval of the President. These rules pertain to various aspects, including the practice and procedure for filing cases, appeals, and other matters before the Court. Also, Under art. 137, the Supreme Court possesses the power of review, which enables it to review and modify its own judgments or orders.
On the other hand, Article 227 grants the High Courts, the power of superintendence over all subordinate courts and tribunals within their respective jurisdictions. This includes the authority to ensure that these lower courts and tribunals function within the bounds of their jurisdiction, and to correct any errors or irregularities in their proceedings.
Article 141 of the Indian Constitution mandates that the decisions and interpretations rendered by the Supreme Court of India are legally binding on all courts within the country’s jurisdiction. This principle establishes a hierarchical structure in the legal system, with the Supreme Court at the apex. It ensures uniformity and consistency in the application of law by requiring lower courts to adhere to the legal precedents set by the Supreme Court, thus upholding the rule of law and legal order throughout India.
Writ jurisdiction serves to enforce fundamental rights, protect against executive overreach, and provide judicial review. It enables citizens to directly approach the higher judiciary if their rights are violated or to challenge government actions.
Art. 32 of the Indian Constitution empowers the Supreme Court to issue appropriate directions or orders or writs, including the writs in the nature of Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto. when a citizen’s fundamental rights are violated. Similarly, art. 226 grants High Courts the authority to issue writs for the enforcement of fundamental rights and for other legal purposes. Thus the jurisdiction of the High Courts under art. 226 is wider than that of the Supreme Court under art. 32.
- Habeas Corpus: This writ is issued to secure the release of a person who has been unlawfully detained or imprisoned. It is a remedy against illegal detention, and it ensures that a person’s right to personal liberty is not violated.
- Mandamus: Mandamus means “we command.” This writ is issued by a superior court to a lower court, public authority, or government official to compel them to perform a public duty that they are legally obligated to perform. It is essentially a direction to do a specific act.
- Prohibition: Prohibition is issued by a higher court to prevent a lower court or tribunal from exceeding its jurisdiction or acting beyond the scope of its authority. It is used to stop a lower court from proceeding with a case when it lacks the legal authority to do so.
- Certiorari: It means “to be informed.” This writ is issued to quash the order or decision of an inferior court, tribunal, or quasi-judicial body if it has acted in excess of its jurisdiction or without jurisdiction. It is used to review the legality of the decision and ensure that it conforms to the law.
- Quo Warranto: It means “by what authority.” This writ is issued to question a person’s right or authority to hold a public office or position. It is used to ensure that public offices are not held by individuals who are not qualified or eligible to do so.
In Premchand Garg v Excise Commissioner, It was held that Article 32 of the Indian Constitution guarantees an absolute right to citizens to approach the Supreme Court for the enforcement of their fundamental rights. This right is fundamental and holds a central place in the Constitution, similar to other provisions protecting citizens’ fundamental rights. While these rights are not absolute and must be balanced with the interests of the general public, the Constitution entrusts the High Courts and the Supreme Court with the responsibility of adjudicating such matters. Therefore, the right to move the Supreme Court is considered the cornerstone of India’s democratic structure, as it ensures the protection of fundamental rights.
Judicial review refers to the power of the court to review and invalidate laws, executive actions, and government decisions if they are found to be in violation of the Constitution. It is the most potent weapon in the hands of the judges.
This power of judicial review is derived from the Constitution itself and is considered one of the basic features of the Indian Constitution. It is not explicitly mentioned in the Constitution but is implied from various provisions. Article 13 declares that any law inconsistent with or in derogation of the fundamental rights shall be void. This forms the basis for the judicial review of legislative actions. Whereas, Articles 32 and 226 empower the Supreme Court and High Courts, respectively, to issue writs, order or appropriate direction for the enforcement of fundamental rights.
It is important as it safeguards citizens’ fundamental rights, upholds the rule of law, maintains the separation of powers, preserves constitutional values, prevents tyranny, ensures social justice, settles constitutional questions, promotes government accountability, contributes to democratic stability, and adapts to evolving societal needs, all while serving as a bulwark against potential government abuses of power in India’s democratic system.
In L. Chandra Kumar vs UOI, the Supreme Court of India held that the power of judicial review, vested in High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution, is an integral and fundamental aspect of basic structure of the Constitution and cannot be abolished or tampered with through constitutional amendments.
In Minerva Mills vs UOI, it was laid down that if a constitutional amendment allows laws to go unchallenged, even if they violate fundamental rights or legislative competence, it undermines the Constitution’s basic structure. Judicial review is a vital principle, integral to our Constitution. If an amendment curtails this power, it jeopardizes the distribution of legislative authority and renders fundamental rights meaningless. Such an amendment can be challenged as unconstitutional, but it can be interpreted to exclude challenges where no satisfaction exists. This ensures that the amendment does not completely eliminate judicial review, preserving a crucial aspect of our constitutional framework.
Whereas, Justice P.N. Bhagwati while referring to the Minerva Mills case, in Sampath Kumar vs UOI held that Judicial review is an essential feature of the Constitution and cannot be abolished by Parliament. However, Parliament has the authority to amend the Constitution to establish an alternative institution for judicial review, as long as it is equally effective as the High Court. This alternative authority would serve the purpose of enforcing constitutional limits and upholding the rule of law without violating the basic structure doctrine.
The Indian judiciary stands as a formidable guardian of justice and a pillar of the country’s democratic framework. The Constitution of India meticulously outlines a robust framework of safeguards to ensure the independence, impartiality, and integrity of the Judiciary. The concept of judicial independence, enshrined in Article 50, remains at the heart of this framework, emphasizing the clear separation of powers and the necessity of safeguarding the judiciary from external influences.
The appointment and removal procedures of judges, the distribution of powers between the Supreme Court and High Courts, the extensive jurisdiction, and the power of judicial review all contribute to the judiciary’s role in upholding the rule of law and protecting citizens’ fundamental rights. These constitutional provisions provide a strong foundation for a judiciary that is capable of adapting to the ever-evolving challenges of a vibrant democracy.
As the highest arbiter of justice, the Supreme Court plays a pivotal role in setting legal precedents and ensuring uniformity in the application of law. Its writ jurisdiction and power of judicial review further bolster its position as a beacon of justice.
In essence, these safeguards underscore the judiciary’s commitment to ensuring that the principles of justice and the rule of law prevail in the world’s largest democracy.
- The Supreme Court (Number of Judges) (Amendment) Act, 1986
- INDIA CODE https://www.indiacode.nic.in/repealed-act/repealed_act_documents/A2009-11.pdf (Last visited Sep. 7, 2023)
- PRS LEGISLATIVE RESEARCH https://prsindia.org/billtrack/the-supreme-court-number-of-judges-amendment-bill-2019 (Last visited Sep. 7, 2023)
- OHCHR, “Basic Principles on the Independence of the Judiciary,” https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-independence-judiciary#:~:text=1.,the%20 independence%20of%20the%20 judiciary. (Last visited Sep. 8, 2023)
- S.P. Gupta v. President of India and Ors., AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR 365
- Supreme Court Advocates-on-Record Association and another vs UOI (1993) 4 SCC 441
- Prem Chand Garg vs Excise Commissioner 1963 AIR 996 1963 SCR Supl. (1) 885
- L. Chandra Kumar vs Union Of India And Others vs UOI A.I.R 1997 SC 1125
- Minerva Mills Ltd. & Ors vs Union Of India & Ors 1980 AIR 1789, 1981 SCR (1) 206
- S.P. Sampath Kumar Etc vs Union Of India 1987 AIR 386, 1987 SCR
 INDIA CONST. art. 124
 The Supreme Court (Number of Judges) (Amendment) Act, 1986
 INDIA CODE https://www.indiacode.nic.in/repealed-act/repealed_act_documents/A2009-11.pdf (Last visited Sep. 7, 2023)
 PRS LEGISLATIVE RESEARCH https://prsindia.org/billtrack/the-supreme-court-number-of-judges-amendment-bill-2019 (Last visited Sep. 7, 2023)
 INDIA CONST. art. 214
 INDIA CONST, art. 50
 OHCHR, “Basic Principles on the Independence of the Judiciary,” https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-independence-judiciary#:~:text=1.,the%20 independence%20of%20the%20 judiciary. (Last visited Sep. 8, 2023)