Judiciary

The judiciary is the organ of government that settles disputes and applies the law. Disputes arise between one person and another, between groups, and between citizens and the government. All of them must be decided by a fair and impartial body. The judiciary does this under the principle called the rule of law. The rule of law holds that the same law applies to everyone, whether rich or poor, high or low.

For the judiciary to be fair it must be independent. Judges who fear the government or favour a party cannot do justice. India therefore has a single integrated judiciary headed by the Supreme Court, one of the most powerful courts in the world.

An independent judiciary means that the other organs of government cannot control how the judges decide cases. The legislature and the executive must not interfere with judgements. Judges must be able to act without fear or favour. Independence does not mean that judges are above accountability. They remain bound by the Constitution and by the law.

The Constitution protects this independence in several ways. The legislature has no part in appointing judges, so party politics is kept out of the choice. Judges have security of tenure and hold office until the age of retirement. They can be removed only through a very hard procedure. Their salaries are charged on the public funds and do not need the yearly approval of the legislature. Parliament cannot discuss the conduct of a judge except when a motion to remove that judge is before it. The courts can punish anyone who commits contempt of court.

Articles:

• Article 125: the salaries of Supreme Court judges are charged on the Consolidated Fund of India, beyond the legislature's yearly vote.
• Article 221: the salaries of High Court judges are charged on the Consolidated Fund of the State, not of India.
• Articles 121 and 211: the conduct of a judge cannot be discussed in Parliament or a state legislature except on a motion for removal.
• Articles 129 and 215: the Supreme Court and the High Courts are courts of record and can punish for contempt of themselves.

The Constitution empowers the courts to punish for contempt but does not define it. The Contempt of Courts Act, 1971 was passed on the recommendation of the H.N. Sanyal Committee. It defines and distinguishes civil contempt (wilful disobedience of a court order) from criminal contempt (scandalising the court, prejudicing a proceeding, or obstructing the administration of justice). The Constitution also lets Parliament legislate on contempt, which is the source of that Act.

A separate strand of independence is the separation of the judiciary from the executive. Article 50, a Directive Principle of State Policy, directs the State to take steps to separate the judiciary from the executive in the public services of the State.

The judges of the Supreme Court and the High Courts are appointed by the President. For many years the senior most judge of the Supreme Court became the Chief Justice of India by convention, though this convention was broken twice in the 1970s. The other judges are appointed by the President after consulting the Chief Justice.

The meaning of this consultation was argued over for years. In the end the Supreme Court ruled that the Chief Justice should recommend names along with a group of the senior most judges of the court. This group is called the collegium. Its recommendations now carry the greatest weight in the choice of judges.

A judge can be removed only on the ground of proven misbehaviour or incapacity. Removal needs a motion passed by a special majority in both houses of Parliament. This procedure is so hard that no judge of the Supreme Court has ever been removed by it. In one case a judge was found guilty by an inquiry, yet he survived because the motion did not gain the required support in the house.

The Constitution names the grounds but does not define them. Nowhere does it say what counts as misbehaviour or incapacity. The detailed procedure comes from an ordinary law, the Judges (Inquiry) Act, 1968. Under it, a removal motion is first placed before the presiding officer of the House. The Speaker of the Lok Sabha or the Chairman of the Rajya Sabha may admit the motion or refuse to admit it. If admitted, a committee investigates the charges. The final address must pass each House by a special majority: a majority of the total membership of that House, and at least two-thirds of the members present and voting.

The same rules of entry and exit apply one level down, with two differences worth memorising. To be a High Court judge a person must be an Indian citizen who has held judicial office for 10 years or been a High Court advocate for 10 years. There is no five-year route. Removal follows exactly the same parliamentary-address procedure as for a Supreme Court judge. After retirement, a permanent High Court judge cannot plead or act in that same High Court or in any court subordinate to it. The retired judge may still appear before the Supreme Court and before the other High Courts.

Articles:

• Article 124: appointment of Supreme Court judges by the President.
• Article 217: appointment of High Court judges.
• Article 124(4): a judge is removed by an order of the President, after an address passed by a special majority of both Houses, on the ground of proved misbehaviour or incapacity.

India has a single integrated judiciary, unlike some federal countries that keep separate sets of central and State courts. The courts form a pyramid. The Supreme Court stands at the top, the High Courts come below it in the States, and the district and subordinate courts sit at the base. The lower courts work under the supervision of the higher courts. A decision of the Supreme Court binds every court in the country.

A High Court does not always serve a single State. Some High Courts serve more than one State, historically three of them: the Gauhati High Court for the north-eastern States, the Bombay High Court, and the Punjab and Haryana High Court. A High Court's territory can also reach Union Territories. The Calcutta High Court, for instance, has jurisdiction over the Andaman and Nicobar Islands.

Both the Supreme Court and the High Courts are courts of record. As a court of record, a High Court has the power to review its own judgements, just as the Supreme Court does under its express review power. Review at the top of the pyramid is therefore not a Supreme Court monopoly.

At the base of the pyramid, one office matters most for the exam. The Court of the District and Sessions Judge is the principal civil court and the highest criminal court of the district. Under Article 233, district judges are appointed by the Governor in consultation with the High Court. The candidate must either already be in the judicial service or have been an advocate or pleader for at least 7 years. The criminal powers of a Sessions Judge have one hard limit: a death sentence passed by a Sessions Judge takes effect only after the High Court confirms it.

Article 236 defines who counts as a "district judge" for the Constitution. The definition includes sessions judges, additional and assistant sessions judges, chief presidency magistrates and chief judges of small cause courts. It does not include judges of tribunals.

Articles:

• Article 124: the Supreme Court at the apex.
• Article 214: a High Court for each state (or group of states).
• Articles 233–237: the subordinate (district and lower) courts, under the control of the High Court.
• Article 141: the law declared by the Supreme Court binds all courts in India.

Courts are not the only bodies that decide disputes. Tribunals are quasi-judicial bodies set up to decide specialised matters faster than regular courts. The 42nd Amendment (1976) added Part XIV-A to the Constitution to provide for them. Article 323A lets Parliament create administrative tribunals for service matters of government employees, such as the Central Administrative Tribunal (CAT). Article 323B allows tribunals for other subjects like taxation, land reforms and elections. In the L. Chandra Kumar case (1997), a Supreme Court ruling on tribunals, the Court held that tribunal decisions remain subject to review by the High Courts, so tribunals supplement the courts rather than replace them.

Alongside tribunals stand the independent regulators. These are statutory bodies that regulate a single sector at arm's length from the government. Examples include the Telecom Regulatory Authority of India (TRAI) for telecommunications, the Insurance Regulatory and Development Authority of India (IRDAI) for insurance, and the Central and State Electricity Regulatory Commissions for electricity. Because Parliament creates them by statute, Parliament also reviews them. This review runs through two channels:

• Ad hoc committees of Parliament: committees set up for a specific purpose, which can examine the working of a regulator.
• Department Related Standing Committees (DRSCs): permanent subject committees of Parliament that scrutinise the ministries and the regulators under them.

Other prominent bodies have no such review role. The Finance Commission (a constitutional body under Article 280) deals with the sharing of taxes between the Union and the States. The Financial Sector Legislative Reforms Commission (FSLRC) was a one-time commission set up in 2011 to redraft financial sector laws. NITI Aayog is the government's policy think tank. None of these reviews the sectoral regulators.

Jurisdiction means the range of cases a court is allowed to hear. The Supreme Court has several kinds of jurisdiction.

Under its original jurisdiction it alone can hear disputes between the Union and the States or among the States. It acts as the umpire of the federal system. Under its writ jurisdiction it can issue writs to protect the fundamental rights of citizens. A person whose right is violated may approach it directly. Under its appellate jurisdiction it hears appeals against the decisions of the High Courts and can give a fresh interpretation of the law. Under its advisory jurisdiction the President may ask it for an opinion on an important question of law. Neither the asking nor the accepting of such advice is binding. Under its review jurisdiction the Court may review its own judgements.

Articles:

• Article 131: original jurisdiction over Centre-state and inter-state disputes.
• Article 32: writ jurisdiction to enforce the Fundamental Rights.
• Articles 132–136: appellate jurisdiction, including special leave to appeal (Article 136).
• Article 137: review jurisdiction: the Court may review its own judgements.
• Article 143: advisory jurisdiction: the President may seek the Court's opinion on a question of law.

Two further articles widen the Court's reach. Article 142 gives it plenary power to pass any decree needed to do "complete justice" in a matter before it. This is a constitutional power, so limits written into ordinary laws made by Parliament cannot constrain it. Article 138 lets Parliament enlarge the Court's jurisdiction by law, including over matters in the Union List. The Court's jurisdiction is therefore not frozen at what the Constitution itself confers.

The courts also run their own houses. The officers and servants of the Supreme Court are appointed by the Chief Justice of India, and those of a High Court by its Chief Justice. The administrative expenses of a High Court are charged on the Consolidated Fund of the State, not of India.

A retired judge of the Supreme Court can be requested to sit and act as a judge of the Court again. This can only be done by the Chief Justice of India and only with the prior consent of the President (Article 128). When the permanent bench is short of quorum, a sitting High Court judge can likewise be appointed an ad hoc judge of the Supreme Court (Article 127). A related point trips many candidates: the power to review one's own judgements is not exclusive to the Supreme Court. A High Court, being a court of record, can review its own judgements too.

Under Article 32 (Supreme Court) and Article 226 (High Courts), the courts enforce rights by issuing writs, which are written commands. Five writs are available, and the questions turn on exactly what each one does and who it lies against:

• Habeas corpus: ("you may have the body") orders the authority detaining a person to produce that person before the court and justify the detention. It lies against the State and even against private individuals.
• Mandamus: ("we command") commands a public authority to perform a public or statutory duty it has refused to do. It lies against any body charged with a public duty, including a Government company. It will not lie against a private body unless that body has been entrusted with a public duty, nor against a purely private contractual obligation.
• Prohibition: issued by a higher court to a lower court or tribunal to stop it from proceeding in a matter that exceeds its jurisdiction. It is preventive, issued while proceedings are pending. It lies only against judicial or quasi-judicial authorities, not against administrative bodies.
• Certiorari: ("to be certified") issued to a lower court or tribunal to quash an order it has already passed without jurisdiction or in breach of natural justice. Unlike prohibition, which stops proceedings before the order, certiorari is curative and is used after the order is made.
• Quo warranto: ("by what authority") challenges a person's right to hold a public office created by statute or the Constitution. Any interested person can apply. The office must be public and substantive.

Writ jurisdiction follows the nature of the act, not the rank of the actor. When the Chief Justice of a High Court acts administratively, for example in matters of court staffing, those administrative actions are subject to the writ jurisdiction of the other judges of the same High Court. No office stands above the writs when it acts in an administrative capacity.

The most important power of the Supreme Court is judicial review. Judicial review is the power to examine a law and to declare it void if it goes against the Constitution. The Constitution does not use the term, but the power follows from the fact that India has a written constitution. The court can strike down a law that breaks it.

The court can review a law on two main grounds. It can strike down a law that takes away a fundamental right. It can also strike down a law that crosses the line between the powers of the Union and the powers of the States. This power applies to laws made by Parliament and to laws made by the State legislatures. Through judicial review the court protects both the rights of citizens and the federal balance set by the Constitution.

Articles:

• Article 13: any law inconsistent with the Fundamental Rights is void to that extent. This is the textual basis of judicial review.
• Articles 32 and 226: the power of the Supreme Court and the High Courts to enforce rights and strike down unconstitutional laws.

Judicial review provoked a response almost at once. When the courts read the Fundamental Rights in ways that blocked land reform, Parliament passed the 1st Amendment (1951) to overcome those rulings. The amendment added Article 31A and Article 31B and created the Ninth Schedule. Land-reform laws placed in the Ninth Schedule were shielded from challenge on the ground of violating Fundamental Rights. The very first amendment to the Constitution was thus an answer to judicial review of rights.

The courts have shaped reservation policy as much as the legislature has. Article 16(4), the provision that lets the State reserve posts in public employment for any backward class not adequately represented, does not stand alone. The Supreme Court has read it together with Article 335, the provision that says the claims of the Scheduled Castes and Scheduled Tribes in appointments shall be taken into consideration consistently with the maintenance of efficiency of administration. In rulings such as M. Nagaraj (2006), a case on reservation in promotions, the Court held that reservation under Article 16(4) is limited by this efficiency requirement in Article 335.

One detail is repeatedly tested. Article 335 invokes efficiency of administration but does not define the term anywhere. The Constitution leaves the phrase open, and the Court itself has had to give it content. In B.K. Pavitra II (2019), a case on consequential seniority in Karnataka, the Court even cautioned against reading efficiency in a way that excludes the value of an inclusive administration.

A proviso added to Article 335 by the 82nd Amendment (2000) softens the efficiency bar. It allows the State to relax qualifying marks and lower evaluation standards for SCs and STs in matters of promotion.

When a person is arrested, the law distinguishes two kinds of custody. In police custody the accused is held in the lock-up of a police station, under the charge of the investigating police, who may interrogate the suspect. In judicial custody the accused is in the custody of the concerned magistrate and is lodged in jail, not in a police station. The two are often confused, and the place of detention is the giveaway: police station for police custody, jail for judicial custody. During judicial custody the police officer in charge of the case cannot interrogate the suspect without the approval of the court. The Code of Criminal Procedure caps police custody at the early stage of investigation, after which the accused passes into judicial custody.

Parole is the temporary, conditional release of a convict from prison, usually to meet a family emergency or maintain social ties. Two points matter:

• Parole is a concession, not a right: it is granted at the discretion of the authorities, and it can be denied even when the prisoner shows sufficient cause. The courts have held that no prisoner can claim parole as a matter of right.
• State rules govern parole: prisons are a State subject, so each State Government frames its own Prisoners Release on Parole Rules, and eligibility and conditions vary across States.

The legal profession in India is governed by the Advocates Act, 1961, the statute that created a single class of legal practitioners called advocates. Only an individual enrolled on the rolls of a State Bar Council is recognised as an advocate. A legal firm is not an advocate, because enrolment is personal to a natural person. Conversely, the Act does not shut out any branch of practice: corporate lawyers and patent attorneys are not excluded, and they count as advocates so long as they are individually enrolled. Government law officers practise as enrolled advocates in the same way.

The Act also created the regulators of the profession. The Bar Council of India is the apex statutory body, with a State Bar Council in each State maintaining the roll of advocates. The Bar Council of India has the power to:

• Set professional standards: lay down standards of professional conduct and etiquette for advocates, and hear appeals in disciplinary matters.
• Regulate legal education: lay down the rules relating to legal education, in consultation with the universities.
• Recognise law colleges: recognise the universities and law colleges whose degree qualifies a person for enrolment as an advocate.

For a long time a person could go to court only if his own right had been harmed. This changed around 1979, when the courts began to hear cases brought by public-spirited people on behalf of others who could not approach the court themselves. Such a case is called a public interest litigation, or PIL. The courts even acted on letters and newspaper reports about the suffering of prisoners and the poor. This readiness of the judiciary to step in for the weak came to be called judicial activism.

The idea did not begin in India. The concept of PIL originated in the United States. Two judges carried it into Indian practice. Justice P.N. Bhagwati, who went on to become Chief Justice of India, is credited with introducing and institutionalising PIL in India. Justice V.R. Krishna Iyer was a progenitor of PIL alongside him, but he never became Chief Justice of India. The exam tests exactly this contrast between the two.

Judicial activism has done much good. It has opened the courts to groups as well as individuals. It has forced the government to account for its actions. It has widened the meaning of rights to include clean air, clean water and a decent life. It has also been criticised. It has added to the heavy load of cases on the courts. It has blurred the line between the work of the judiciary and the work of the executive and the legislature. A healthy democracy needs each organ to respect the powers of the others. So the judiciary must use this power with care.

The relationship between the judiciary and Parliament has not always been smooth. The two clashed over the right to property and over the power of Parliament to amend the Constitution. The dispute was largely settled in 1973 in the Kesavananda Bharati case. The Supreme Court ruled that Parliament can amend the Constitution but cannot alter its basic structure. The court kept for itself the right to decide what belongs to that basic structure. This ruling still guides the balance between the two organs.

Justice is meaningless if the poor cannot afford to reach the courts. The Constitution recognises this through Article 39A, a Directive Principle inserted by the 42nd Amendment (1976). It directs the State to provide free legal aid and to ensure that justice is not denied to any citizen by reason of economic or other disability.

This directive was given teeth by the Legal Services Authorities Act, 1987, which created a tiered structure of bodies:

• The National Legal Services Authority (NALSA) sits at the top. Its objective is to provide free and competent legal services to the weaker sections of society on the basis of equal opportunity. It frames the policies and guidelines that the lower authorities implement. It also organises Lok Adalats for the settlement of disputes.
• The State Legal Services Authorities implement NALSA's guidelines at the State level, with District and Taluk authorities below them.

Who is entitled to free legal services is fixed by the Act and by income criteria. Examples include persons below a low annual income threshold, and certain categories such as women, children, members of SCs/STs, victims of trafficking, persons with disabilities, and transgender persons (the last under a higher income ceiling). There is no special caste-based income slab for OBCs as a class.

The Legal Services Authorities Act, 1987 also gave statutory shape to the Lok Adalat, a forum where disputes are settled by compromise. Its jurisdiction is wide in two directions. It can take up cases already pending before a court, and it can also take up disputes at the pre-litigation stage, before any case is filed. Its subject reach is equally broad:

• Compoundable criminal matters: minor offences that the law allows the parties to settle.
• Matrimonial and family disputes: maintenance, custody and similar matters.
• Everyday civil claims: motor accident compensation claims, mobile and telecom bill disputes, and pension cases.

A Lok Adalat bench is not made up of judges alone. It includes a judicial officer along with non-judicial members, such as lawyers and social workers. Its award carries real force. The award is deemed to be a decree of a civil court, it is final and binding on the parties, and no appeal lies against it. A dissatisfied party can only start a fresh case in the ordinary courts.

The Gram Nyayalayas Act, 2008 created village-level courts to bring justice to the doorstep of rural India. Two features are tested. A Gram Nyayalaya hears both civil and criminal cases, not civil cases alone. And the Act builds in community settlement: it allows local social activists to serve as mediators and conciliators between the parties.

The Supreme Court (Articles 124–147):

• Article 124 establishes it. Under the same article Parliament fixes the number of judges by law, and only Parliament can increase it. The sanctioned strength today is 34 judges including the Chief Justice of India.
• Eligibility: an Indian citizen who has been a High Court judge for 5 years, an advocate for 10 years, or a distinguished jurist. Judges retire at 65.
• Appointment is by the President through the collegium (the CJI and senior judges). Parliament's attempt to replace it with the National Judicial Appointments Commission (NJAC) was struck down in 2015 as a breach of the basic structure.
• Jurisdictions: the five kinds (original, writ, appellate, advisory and review) and their articles are set out in the jurisdiction section above. Memorise the article pairings there.
• It is a court of record (Art 129).

The High Courts (Articles 214–231): there are 25 High Courts. A crucial point: a High Court's writ power under Article 226 is wider than the Supreme Court's under Article 32, as it can issue writs to enforce Fundamental Rights and for any other purpose (ordinary legal rights). Below them sit the subordinate courts (district judges, Articles 233–237). Further details the exam draws on:

• Retirement age: High Court judges retire at 62, three years earlier than Supreme Court judges at 65.
• Shared High Courts: Punjab, Haryana and the Union Territory of Chandigarh share one common High Court at Chandigarh.
• Delhi: the National Capital Territory of Delhi has a High Court of its own, so the claim that no Union Territory has a High Court is false.
• Source of jurisdiction: a High Court's jurisdiction flows from the Constitution itself, not from the Civil Procedure Code or any ordinary statute.
• No advisory role: High Courts have no advisory jurisdiction. Nothing equivalent to Article 143 exists for them.
• Advocate General: the Advocate General of a State, the State's chief law officer under Article 165, is appointed by the Governor, not by the President.

Key doctrines the courts have developed: the basic structure doctrine (Kesavananda, 1973), judicial review, due process (Maneka Gandhi, 1978, Article 21 requires just and fair procedure), separation of powers, and the doctrines of severability (the valid part of a law survives if the bad part can be cut out) and eclipse (a pre-constitutional law inconsistent with Fundamental Rights is dormant, not void, and revives if the right is amended away) for laws that conflict with Fundamental Rights.