The Judiciary

Chapter summary

In a constitutional democracy, the judiciary is the institution that interprets laws, resolves disputes, enforces fundamental rights, and reviews the constitutionality of legislative and executive actions. India has a single integrated judiciary — unlike federal countries like the USA which have separate federal and state court systems.

The chapter explains India's three-tier judicial structure (Supreme Court → High Courts → Subordinate Courts), the appointment and removal processes, the powers of judicial review, the evolution of Public Interest Litigation (PIL) since the 1980s, and the contemporary debates over judicial activism vs overreach. It also covers the controversies over the collegium system and the 2015 NJAC verdict that reaffirmed judicial independence as a basic feature.

The structure of Indian judiciary

The single integrated structure means: the Supreme Court is the apex for ALL matters — whether involving central laws, state laws, or even the Constitution itself. Decisions of the Supreme Court are binding on all courts in India. This is different from the USA, where state courts and federal courts have largely separate jurisdictions.

The Supreme Court of India

Composition and appointment

The Supreme Court has 34 judges (since 2019 — increased from 31). Composition:

• Chief Justice of India — senior-most judge, normally serves until retirement age (65).
• 33 other judges — appointed by the President under Article 124(2).

Appointment process (per Collegium system):

1. The Collegium (CJI + 4 senior-most SC judges) recommends names.
2. Recommendation goes to the Law Minister → Cabinet Secretariat → President.
3. The Government can return a name once for reconsideration. If the Collegium reiterates, the Government must accept.
4. The President formally appoints under Article 124(2).

Qualifications (Article 124(3)): Citizen of India + either (a) at least 5 years as a High Court Judge, OR (b) at least 10 years as a High Court Advocate, OR (c) distinguished jurist in the opinion of the President.

Removal of judges

Supreme Court judges can be removed only by a process specified in Article 124(4) — same as for "impeachment" (though technically Indian Constitution uses "removal" for judges):

1. Motion signed by at least 100 Lok Sabha members or 50 Rajya Sabha members;
2. Speaker/Chairman admits the motion;
3. 3-member judicial committee (CJI nominee, sitting HC judge, jurist) inquires into charges;
4. If inquiry finds judge guilty of "proved misbehaviour or incapacity";
5. Special majority in both Houses of Parliament — 2/3 of present-and-voting AND majority of total membership.

No SC judge has ever been removed by this process — though Justice V. Ramaswami narrowly escaped removal in 1993 (Lok Sabha vote fell short of required majority).

Jurisdiction of the Supreme Court

• Original jurisdiction (Article 131) — disputes between Centre and States, between States. Cases come directly to SC.
• Writ jurisdiction (Article 32) — enforcement of fundamental rights. A fundamental right in itself.
• Appellate jurisdiction (Articles 132-134) — appeals from High Courts in constitutional, civil, criminal cases.
• Advisory jurisdiction (Article 143) — President can refer questions of law or fact for SC opinion. Used 14+ times.
• Special leave appellate jurisdiction (Article 136) — SC can grant leave to appeal from any judgment of any court or tribunal in India. Vast discretionary power.
• Review jurisdiction (Article 137) — SC can review its own judgments.
• Curative petition — judicially evolved (Rupa Ashok Hurra 2002) — last resort after review.

The High Courts

India has 25 High Courts as of 2024. Some High Courts have jurisdiction over multiple states/UTs (e.g., Bombay HC covers Maharashtra + Goa + UTs). Each High Court has a Chief Justice + other judges.

Powers of High Courts:

• Writ jurisdiction (Article 226) — wider than SC's Article 32. HCs can issue writs for fundamental rights AND for "any other purpose" (legal rights).
• Appellate jurisdiction over District Courts and tribunals.
• Supervisory power (Article 227) — over all courts and tribunals within their jurisdiction.
• Original civil and criminal jurisdiction — though most original work is at lower courts.

Independence of judiciary

The Constitution provides multiple safeguards for judicial independence:

1. Security of tenure: Judges hold office until 65 (SC) or 62 (HC) and can only be removed by Parliament under a special process.
2. Salary charged on Consolidated Fund: Judges' salaries are not subject to parliamentary vote — they cannot be reduced as punishment.
3. Restriction on post-retirement appointments: SC judges cannot practice in any court in India after retirement; HC judges cannot practice in the court they retired from.
4. Power to punish for contempt: Judges can punish those who attempt to interfere with administration of justice.
5. Separation from executive: Judicial appointments largely controlled by judiciary itself (collegium system).
6. Power of judicial review: Courts can strike down executive and legislative actions.
7. Financial autonomy: Court budgets are separately appropriated.
8. Constitutional protection: Article 50 (DPSP) directs separation of judiciary from executive.

However, several issues are debated:

• Post-retirement governmental appointments: Several retired SC judges have accepted post-retirement positions (Governors, members of statutory bodies). Critics see this as compromising independence.
• Vacation by political pressure: Pressure to resign before mandatory retirement, though rare.
• Pendency and resource constraints: Underfunded judiciary cannot deliver justice timely.
• Transparency in collegium: Internal deliberations are not public, making the appointment process opaque.

Judicial review

Judicial review is the power to test the constitutionality of laws and government actions. The doctrine flows from multiple constitutional provisions:

• Article 13 — defines "law" for fundamental rights purposes; declares pre/post-Constitution laws void to extent inconsistent with Part III.
• Article 32 — Supreme Court's writ jurisdiction.
• Article 226 — High Court's writ jurisdiction.
• Articles 131-136 — SC's various jurisdictions.

Judicial review covers:

• Constitutional Amendments — tested on basic structure grounds (Kesavananda Bharati 1973). See basic structure explainer.
• Legislation — tested for fundamental rights violation, legislative competence (Schedule VII), constitutional inconsistency.
• Executive Actions — tested for legality, reasonableness, fairness, proportionality.
• Subordinate legislation — rules, notifications must be within statutory mandate.

Judicial review has been declared a basic feature of the Constitution (Kesavananda 1973, Minerva Mills 1980) — cannot be removed by amendment.

Public Interest Litigation (PIL)

PIL is one of India's most distinctive judicial innovations. It transformed a private rights-enforcement system into a tool for social and constitutional change.

Origins (1979-82)

Justice P.N. Bhagwati and Justice V.R. Krishna Iyer pioneered PIL in landmark cases:

• Hussainara Khatoon v. State of Bihar (1979) — undertrials in Bihar jails who had spent more time awaiting trial than the maximum sentence for their alleged offences. The Court treated a journalist's letter as a writ petition.
• S.P. Gupta v. Union of India (1981) — Justice Bhagwati explicitly relaxed locus standi: "any member of the public can move the Court for the enforcement of fundamental rights or other public-interest legal claims."
• Bandhua Mukti Morcha v. Union of India (1984) — bonded labourers in stone quarries.

Areas of PIL

PIL has been used for:

• Prisoner rights and bonded labour (Hussainara, Bandhua Mukti Morcha);
• Environment (M.C. Mehta cases on Ganga pollution, Taj Mahal, vehicular pollution, deforestation);
• Children's rights (Sheela Barse on women prisoners; child labour cases);
• Right to information (S.P. Gupta itself; eventually RTI Act 2005);
• Electoral reforms (Union of India v. ADR 2003 on candidate disclosure);
• Governance accountability (vigilance, anti-corruption, electoral bonds);
• Social rights (right to food in PUCL; mid-day meals; National Food Security Act 2013).

Criticism and current state

Critics of PIL argue:

• Frivolous petitions: Many PILs are filed for publicity or vested interests. The Supreme Court has now imposed costs on frivolous PILs.
• Judicial overreach: PILs sometimes ask courts to decide policy questions that should belong to the executive.
• Bypassing legislature: PIL has sometimes led to judicially crafted "guidelines" (Vishaka, Bhanwari Devi cases) that operate as legislation for years before Parliament catches up.
• Inequality of access: While PIL was designed to help the marginalised, in practice it is often used by elite litigants and NGOs.

Despite criticisms, PIL remains an essential feature of Indian constitutional democracy.

Judicial activism vs judicial overreach

"Judicial activism" refers to the proactive role of the judiciary in protecting rights and ensuring justice — often filling gaps left by the executive or legislature. "Judicial overreach" describes when the judiciary crosses into the executive or legislative domain.

The line between them is contested:

The debate continues. Constitutional scholars are divided. Some, like Granville Austin and Upendra Baxi, see judicial activism as necessary given India's weak executive-legislative response on socio-economic rights. Others, like André Béteille and many former judges, warn against overreach undermining democratic accountability.

NCERT exercise Q&A (with explanations)

UPSC / MPSC previous year questions on this chapter